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

1. 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) .

1. 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).

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

1. 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

1. 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 else. (T125.28)

1. Mr Gordon then submitted:

That was the way in which I opened the case to the jury, and thereafter I have taken a low profile throughout the trial and have not sought to cross-examine any witness in relation to the activities that are seen involving bollards in and around the area of the Deng footage in particular, there being no described individual who fitted the description of Kisacanin, either by cap or otherwise, and there being no reason at that stage for me to believe that the Crown was relying on any CCTV footage beyond that set out in camera 404. (T4137.36)

1. I accept that Mr Gordon did not cross-examine witnesses on "the activities that are seen involving bollards in and around the area of the Deng footage", or about whether any individual in that area could have been Mr Kisacanin. However, Mr Gordon did not explain why he would have done so if he had been aware at an earlier time of the Crown's contention in relation to the Deng footage.

1. Doing the best I can in the absence of any such explanation, it seems to me that such cross-examination would not have achieved anything, but would have run the risk of having a witness say something that would have raised the possibility that Mr Kisacanin was in fact in that area.

1. Aside from the evidence of one witness (Ms Redford), which I will mention shortly, the only direct evidence relied upon by the Crown in relation to Mr Kisacanin's "activities" in the departure hall is the Deng footage and the footage from security camera 404. Cross-examination of witnesses to establish a negative, when, aside from Ms Redford, there was already a negative, does not appear to have been a course that could have been undertaken for any useful purpose.

Failure by the Crown to comply with the rule in Browne v Dunn by not seeking leave to cross-examine a prosecution witness concerning an aspect of a description

1. Ms Redford was a Qantas employee who was working at one of the check-in counters. She witnessed certain aspects of the riot in the departure hall. Her description of what she saw included that she saw a man pick up a bollard over his left shoulder and swing it. At that point, she looked away in order to press a duress button. She described this man as having a big build, with tattoos on his arms and wearing a dark grey singlet (T947-948).

1. Mr Kisacanin was wearing a grey singlet. He could be regarded as having a big build. However, he had no visible tattoos.

1. The Crown Prosecutor made the following submission concerning this evidence on the application for directed verdicts:

The person she describes with the grey singlet, she also describes as having tattoos and there is no suggestion on the Crown case that Mr Kisacanin has tattoos and Mr Gordon cross-examined her on that issue at page 956. However, in our respectful submission the extent to which it may be suggested by Mr Gordon that it can't be Mr Kisacanin because he doesn't have tattoos cuts both ways, in that she may well be wrong about the tattoos, and it certainly is evidence of someone in a grey singlet wielding a bollard as described by Ms Redford. (T3679.43)

1. Mr Gordon submitted that there had been a failure to comply with the rule in Browne v Dunn (1893) 6 R 67. The Crown had not sought to challenge Ms Redford's evidence that the man she saw had tattoos. As a result, so it was submitted, there was "great prejudice arising to the defence" (T4137.22).

1. Mr Gordon did not suggest how it was that the case concerning his client had suffered prejudice. It was not asserted that it had come as a surprise that the Crown was relying upon the evidence of Ms Redford and that the case for Mr Kisacanin would have been conducted differently if this had been known at an earlier time.

1. It is does not appear that the Crown would have had a basis to cross-examine Ms Redford so as to positively assert that the man she saw did not have tattoos. The most, it would seem, that could have been done by way of cross-examination would have been to inquire whether she was sure about the tattoos. What this would have achieved in terms of assisting the case for Mr Kisacanin is something I fail to see. Moreover, whether leave would have been granted to the Crown to cross-examine Ms Redford upon the basis that her evidence was "unfavourable" is not entirely self-evident: see ss 38 and 192 Evidence Act 1995.

1. Ms Redford is not the only witness in this trial in respect of whom the Crown relies upon some of the evidence but suggests, or accepts, that other parts of the witness' testimony are incorrect. That is perfectly understandable when a large number of people are asked to give an account of an event which was quick, chaotic, unexpected and traumatic.

The Crown Prosecutor raised a question early in the trial about whether any counsel would take issue if the Crown did not seek leave to cross-examine witnesses whenever there was something that the Crown did not accept in the evidence. She said that she was mindful of the decisions of the Court of Criminal Appeal in cases such as R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 and R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34. See also Puchalski v R [2007] NSWCCA 220 at [68] - [79] and Causevic v R [2008] NSWCCA 238 at [34] - [35]. The outcome of the Crown Prosecutor raising this issue was recorded in the transcript as follows:

HIS HONOUR: Does anyone feel that it is necessary for the Crown to cross-examine witnesses when there are matters of discrepancy such as these?

(Counsel replied in the negative.) (T801.43)

1. I note that almost immediately after that, I indicated that if counsel did have any concerns about this issue they should be raised (T802.1). Thereafter, none were until the present application was made.

1. If the Crown Prosecutor had taken the view that it was necessary to cross-examine every witness whenever such a discrepancy appeared, the result would have been a significant extension to the length of an already long trial for little or no practical purpose.

Conclusion

1. In relation to each matter, individually and collectively, I was not persuaded that there was prejudice to the case concerning Mr Kisacanin that would warrant the jury being discharged. For these reasons the application was refused.

**********

Decision last updated: 14 February 2012