R v Hawi (No 2)

Case [2011] NSWSC 1648


Supreme Court


New South Wales

Medium Neutral Citation: R v Hawi & ors (No 2) [2011] NSWSC 1648
Hearing dates:21 April 2011
Decision date: 29 April 2011
Jurisdiction:Common Law - Criminal
Before: R A Hulme J
Decision:

Application refused

Catchwords: CRIMINAL LAW - procedure - witnesses - open justice and fair trial principles - "right" to confront accusers - witnesses in fear - public interest immunity and s 130 Evidence Act - anonymous witnesses - inadequate evidence to justify making pseudonym order
Legislation Cited: Evidence Act 1995
Evidence (Audio and Audio Visual Links) Act 1998
Jury Act 1977
Cases Cited: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
BUSB v R [2011] NSWCCA 39
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dodds v The Queen [2009] NSWCCA 78; (2009) 194 A Crim R 408
Eastman v The Queen (1997) 76 FCR 9
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Maryland v Craig 497 US 836 (1900)
McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468
R v Davis [2008] UKHL 36; [2008] AC 1128
R v Davis; R v Ellis [2006] 1 WLR 3130
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Hughes [1986] 2 NZLR 129
R v Lowe (1997) 98 A Crim R 300
R v Murphy [1990] NI 306
R v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55
R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291
Smith v Illinois 390 US 129 (1968)
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Witness v Marsden & Anor [2000] NSWCA 52; (2000) 49 NSWLR 429
Young v Quin & Ors (1985) 4 FCR 483
Texts Cited: David Lusty, 'Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials' (2002) 24 Sydney Law Review 361
Ian Dennis, 'The Right to Confront Witnesses: Meanings, Myths and Human Rights' [2010] Crim LR 255 at 257
Category:Procedural and other rulings
Parties: Commissioner of Police
Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Canan (aka Ishmail) Eken
Usama Potrus
Zoran Kisacanin
Tiago Costa
Maher Aouli
David Padovan
Representation: Counsel:
Mr R Bromwich SC with Mr R Bhalla (Commissioner of Police)
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC (Hawi)
Mr J Stratton SC (Menzies)
Mr J Trevallion (Abounader)
Mr P Young SC (Eken)
Mr J Gordon (Potrus & Kisacanin)
Mr K Kyriacou, Solicitor (Costa & Aouli)
Mr A Conwell (Padovan)
Solicitors:
Crown Solicitor (Commissioner of Police)
Solicitor…

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R v Hawi (No 2) [2011] NSWSC 1648
Case
[2011] NSWSC 1648
Decision Date

CaseChat Overview and Summary

The appeal was heard by the High Court against a decision of the NSW Court of Criminal Appeal. The appellant was convicted of conspiracy to import a commercial quantity of heroin. The NSW Court of Criminal Appeal quashed the conviction because the appellant had not been given an opportunity to cross-examine a witness who gave evidence anonymously. The Crown appealed to the High Court. The High Court was required to determine whether the appellant had a right to cross-examine the witness, and if so, whether the quashing of the conviction was the appropriate remedy. The Court held that there was no general common law right to cross-examine an accuser. However, the appellant had a right to challenge the evidence given by the witness, and the right to cross-examine was a reasonable, just and practical way of doing this. It was a matter of degree in each case, and the seriousness of the offence was a relevant consideration. The Court also held that quashing the conviction was not the only remedy available, and the Court of Criminal Appeal should have considered whether there were other remedies available, such as a pseudonym order. The High Court allowed the appeal, set aside the decision of the Court of Criminal Appeal, and ordered that the matter be remitted to the Court of Criminal Appeal for reconsideration in light of the Court's decision. The Court also ordered that the Court of Criminal Appeal consider whether a pseudonym order should have been made, and if so, whether the evidence was adequate to justify such an order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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