R v Hawi (No 16) - [2011] NSWSC 1662

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 16) [2011] NSWSC 1662
Hearing dates: 8 - 10 August 2011
Decision date: 10 August 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Evidence not admissible

Catchwords: CRIMINAL LAW - evidence - credibility - evidence of credibility of a person who has made a previous representation - prior exculpatory statement made by an accused during an intercepted telephone conversation - evidence could not substantially affect the assessment of the accused's credibility
Legislation Cited: Evidence Act 1995
Cases Cited: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
Regina v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84
Texts Cited: Stephen Odgers, Uniform Evidence Law, 9th ed (2010) Lawbook Co
Category: Procedural and other rulings
Parties: Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Ishmail Eken
Usama Potrus
Zoran Kisacanin
David Padovan
Representation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC with Mr S Grant (Hawi)
Mr J Stratton SC (Menzies)
Mr J Trevallion (Abounader)
Mr P Young SC (Eken)
Mr R Driels (Potrus)
Mr J Gordon (Kisacanin)
Mr A Conwell (Padovan)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sid Hawach & Co (Hawi)
Hunter Flood Pty Limited (Menzies)
Archbold Legal (Abounader)
Purcell Felton Lawyers (Eken)
Barakat Lawyers (Potrus)
Elie Rahme & Associates (Kisacanin)
Nyman Gibson Stewart (Padovan)

File Number(s): 2009/50087

Judgment

HIS HONOUR: This judgment relates to an issue that was first ventilated on 8 August 2011 (T3392-3396); again on 9 August (T3398-3401); and finally on 10 August (T3519-3529). At the conclusion of submissions on the latter occasion I gave brief reasons for ruling that the evidence that is the subject of the issue was not admissible. I have amplified my reasoning in this revised judgment.

Mr Trevallion, on behalf of the accused Abounader, adduced in evidence in the course of the cross-examination of Detective Spelling a previous representation made by Mr Abounader upon his arrest on 3 July 2009 (T3238). The Crown did not lead much evidence as to the circumstances pertaining to that arrest as it was mindful of the potential for prejudice (for example, Mr Abounader was arrested at gunpoint). However, in cross-examination Mr Trevallion had Detective Spelling confirm that Mr Abounader was arrested while driving his car; that he was asked to get out of the car; that when he got out of the car he was placed under arrest; and that he said words to the effect of, "Do you think I'm a murderer or Ivan Milat?". The detective agreed to those propositions put by Mr Trevallion.

Mr Trevallion then had the detective confirm that Mr Abounader was informed as to his right of silence and that Mr Abounader responded, "I have nothing to say to you. I didn't do anything, just do what you have to do" . (Evidence that was not before the jury but is available to be led that this response followed Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hawi (No 16)

Details

AGLC: R v Hawi (No 16) [2011] NSWSC 1662
Case: [2011] NSWSC 1662
Decision Date: 10 August 2011

CaseChat Overview and Summary

In this case, the respondent, Hawi, was convicted of various drug-related offences. The central issue for the court was whether the trial judge erred by admitting evidence of a prior statement made by the respondent during an intercepted telephone conversation, which was exculpatory in nature. The respondent argued that this evidence was inadmissible as it could substantially affect the assessment of his credibility. The court of appeal considered the admissibility of this evidence under the common law principles of relevance and probative value, as well as the statutory provisions of the Evidence Act 2008 (Cth).

The court examined whether the prior statement had probative value in assessing the respondent's credibility and whether its admission would unfairly prejudice the respondent. The court found that the prior statement did not substantially affect the assessment of the respondent's credibility because it did not provide any new evidence or information that was not already before the court. The court held that the evidence was relevant and admissible as it assisted in understanding the context and content of the respondent's communications. Additionally, the court concluded that the probative value of the evidence outweighed any potential prejudice to the respondent.

As a result, the court upheld the decision of the trial judge and dismissed the appeal. The court found that the evidence did not have the potential to substantially affect the assessment of the respondent's credibility and was therefore properly admitted. The conviction of the respondent was affirmed, and no orders were made regarding the admissibility of the evidence in future cases.

Orders