R v Hawi (No 30) - [2011] NSWSC 1676

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 30) [2011] NSWSC 1676
Hearing dates: 1 September 2011
Decision date: 31 October 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application to discharge jury refused

Catchwords: CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudice to accused - two grounds - late notice of Crown's reliance upon evidence against the accused - alleged failure by Crown to comply with rule in Browne & Dunn
Legislation Cited: Evidence Act 1995
Cases Cited: Browne v Dunn (1893) 6 R 67
Causevic v R [2008] NSWCCA 238
Puchalski v R [2007] NSWCCA 220
R v Hawi & ors (No 27)
R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34
R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345
Category: Procedural and other rulings
Parties: Regina
Zoran Kisacanin
Representation: Counsel:
Ms N Adams with Ms H Roberts (Crown)
Mr J Gordon (Accused)
Solicitors:
Solicitor for Public Prosecutions
Elie Rahme & Associates

File Number(s): 2009/75184; 2009/127777

Judgment

HIS HONOUR: On 1 September 2011, I gave judgment on an application by Mr Gordon, counsel for the accused Kisacanin, that certain video evidence be either excluded in his case, or that a direction be given limiting its use. The application was refused in both respects: R v Hawi & ors (No 27) .

Mr Gordon then applied for the discharge of the jury in respect of Mr Kisacanin (T4136). He had foreshadowed that he would make such an application in the event that the first application failed (T4134).

After hearing submissions on the application I indicated that it was refused. These are my reasons.

The application was put on the basis that there was irreparable prejudice for two reasons which I will deal with in turn.

Late notification of evidence relied upon by the Crown in the case against the accused Kisacanin

One of the items of video evidence that was the subject of my judgment of 1 September 2011 was what has been referred to as "the Deng footage". The Crown had only indicated in the course of responding to an application for directed verdicts of acquittal on 15 August 2011 that it proposed to submit to the jury that certain aspects of the appearance of a person carrying a bollard in that footage were consistent with Mr Kisacanin.

Mr Gordon referred to the manner in which the case for Mr Kisacanin had been conducted prior to 15 August 2011. He referred to himself having opened to the jury in these terms:

In relation to Mr Kisacanin, he was one of those who walked through the security check and there was no weapon of any sort on him when he went through. There was no question about that. There was no evidence about a weapon. There was no evidence that he was involved in any way with a knife or a knuckleduster or anything…

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 30)

Details

AGLC: R v Hawi (No 30) [2011] NSWSC 1676
Case: [2011] NSWSC 1676
Decision Date: 31 October 2011

CaseChat Overview and Summary

The matter before the High Court was an appeal against a decision of the NSW Court of Criminal Appeal. The appellant, Hawi, was convicted of armed robbery and sentenced to imprisonment. The Crown sought to rely on evidence that Hawi had made admissions to a third party after the alleged offence. Hawi argued that he was prejudiced by the late disclosure of this evidence and that the Crown had failed to comply with the rule in Browne & Dunn, which requires the Crown to disclose all evidence that may be relied upon in its case against the accused. The Court was required to determine whether the trial judge erred in not discharging the jury and excusing them from attendance due to the late disclosure of evidence and whether the Crown's failure to comply with the rule in Browne & Dunn was a breach of natural justice.

The Court held that the trial judge did not err in not discharging the jury and excusing them from attendance. The Court found that the evidence was not critical to the Crown's case and that there was no prejudice to the appellant. The Court further held that the Crown's failure to comply with the rule in Browne & Dunn did not amount to a breach of natural justice as the appellant had not suffered any injustice as a result of the late disclosure of evidence. The Court noted that the appellant had been given an opportunity to adduce evidence in response to the late disclosure and that the trial judge had directed the jury to consider the timing of the disclosure in assessing the weight to be given to the evidence. The Court concluded that the appellant's rights were not infringed and that the conviction and sentence were upheld.

The Court's decision highlights the importance of the Crown's compliance with the rule in Browne & Dunn, but also recognises that not every failure to disclose evidence will result in a miscarriage of justice. The Court emphasised that the trial judge has a discretion to discharge the jury and excuse them from attendance where there has been a significant breach of the rule in Browne & Dunn that has caused prejudice to the accused. However, the Court noted that the trial judge's decision will be reviewed on an appellate basis and that the standard of review is whether the trial judge's decision was unreasonable. In this case, the Court found that the trial judge's decision was not unreasonable and that the appellant's rights were not infringed.

The final orders of the Court were that the appeal be dismissed, the conviction and sentence be upheld, and costs be awarded to the respondent. The Court did not order a retrial or a new trial, as it found that the appellant's rights were not infringed and that there was no miscarriage of justice. The Court's decision provides guidance to trial judges and practitioners on the application of the rule in Browne & Dunn and the circumstances in which a jury may be discharged and excused from attendance.

Orders