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
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…
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.
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Details
AGLC
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.