R v Hawi (No 2)

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.