R v Hawi (No 6)

[2011] NSWSC 1652

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 6) [2011] NSWSC 1652
Hearing dates:	11 May 2011
Decision date:	19 May 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Non-publication orders made in part
Catchwords:	CRIMINAL LAW - procedure - miscellaneous powers of courts and judges - suppression orders - application for non-publication orders in respect of certain evidence and witnesses
Cases Cited:	R v Hawi & Ors (No 2) John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Canan (aka Ishmail) Eken Usama Potrus Zoran Kisacanin David Padovan
Representation:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan)
File Number(s):	2009/50087

Judgment

1. HIS HONOUR: This trial is concerned with two incidents which occurred at the Qantas domestic terminal on 22 March 2009. The Crown alleges that members and associates of the Comanchero and Hells Angels motorcycle clubs engaged in an affray near Gate 5 and a riot in the departure hall which culminated with the murder of Mr Anthony Zervas.

1. The prosecution case depends heavily upon eyewitness testimony. There were a great many members of the public and airline and airport staff who witnessed relevant events. None of these witnesses knew any of the participants. The Crown relies upon the descriptions given by witnesses of the participants to identify the roles played by the various accused.

1. The present intention of the Crown is to call in excess of 140 such witnesses. The evidence is expected to occupy at least a month of the trial.

1. Counsel for the Crown and for each of the accused are concerned about the prospect of contamination of witness testimony if any of the witnesses yet to give evidence become aware of the evidence that has been given by others. I acknowledge that concern. When this issue was raised on 11 May 2011, it was the unanimous position of the parties that certain non-publication orders should be made to address this concern. It was also proposed that a non-publication order be made in relation to two particular witnesses.

1. The Crown Prosecutor provided a draft schedule of orders (MFI 1). Counsel for each of the accused agreed with the proposed terms. It was sought that there be non-publication of:

1. Any photographs, images, caricatures or other material depicting the accused.

2. Any descriptions of the accused given in evidence.

3. Any descriptions of participants in the events on 22 March 2009 in evidence.

4. The names of [SP] and [AL] and members of their families.

1. Despite the unanimity of the parties, I indicated on that occasion that I wished to give further consideration to the issue. It seemed to me, both at the time, and upon subsequent reflection, that some of the proposed orders were extreme in their reach and were unusual in the extent to which they would prohibit publication of a major proportion of the evidence in a trial of considerable public interest.

1. Given that the trial will be concerned with a substantial body of eyewitness testimony which includes descriptions of participants in the events at the airport on 22 March 2009, it seems to me that images of the accused should not be available to such witnesses prior to their giving evidence.

1. It is my understanding that the media well recognise that there are sensitive issues involved in cases concerned with identification, description or similarity of appearance evidence. It is often the case that visual news reports in such cases either remove entirely any depiction of the accused, or use some technique, such as pixelation, to conceal certain aspects of a person's appearance. Nonetheless, it seems to me to be appropriate to make order 1 in the list of proposed orders in a slightly modified form.

1. As to proposed order 4, the two witnesses referred to are men who were members of the Comanchero motorcycle club who have pleaded guilty for their involvement in the events at the airport and have undertaken to give evidence for the prosecution. There is a concern about their safety and that of their families and it seems that promotion of such safety underlies the application for proposed non-publication order 4. None of the accused took issue with this. I propose to make that order.

1. It is the proposed orders 2 and 3 that are of concern. The Crown case depends substantially upon the evidence of eyewitnesses. There is some evidence of what occurred at the airport that is revealed by closed circuit video camera footage but it is far from complete and the images vary in their quality. A far more complete account of what occurred, both visually and aurally, can only be derived from the eyewitness testimony. Preventing publication of such evidence would frustrate the public interest in open justice generally, and, specifically, would substantially frustrate the ability of the public to be informed as to what occurred during two very disturbing incidents that occurred in such a public place.

1. When the issue was re-visited on 17 May 2011, the Crown Prosecutor indicated that orders 2 and 3 were no longer proposed by the Crown. Counsel for each of the seven accused, however, maintained the position that such orders should be made.

1. Mr Driels, for the accused Potrus, led the submissions with a contention that publication of the evidence with which orders 2 and 3 are concerned would likely be inaccurate and might mislead the jury who he expected would read, hear or see news reports. In his submission, this would impose a burden upon defence lawyers "to scrutinise all media reports on a daily basis to see whether they are actually reporting accurately what has occurred during the course of the day" (T287).

1. The jury will be instructed to determine their verdicts upon the evidence and not upon media reports. Mr Driels' submission was, with respect, of no assistance.

1. Mr Stratton SC, on behalf of Mr Menzies, was more concerned with the issue of potential contamination of evidence of witnesses who had not yet given evidence. He acknowledged that the witnesses have all made statements and there would be an expectation that they would give evidence in accordance with such statements. However, he submitted that some who gave evidence at the committal hearing gave evidence that was at odds with their statements. As an example of how witness testimony can be contaminated by news reporting, Mr Stratton referred to some witnesses purporting to identify an accused based upon images they had seen in the media of people being arrested.

1. Mr Stratton did not oppose the media being free to publish evidence about what witnesses say they observed the participants to be doing in the events at the airport. He did, however, oppose publication of descriptions of the appearance of the people alleged to be doing such things.

1. Mr Grant referred, by way of example, to a witness who had made a statement and then purported to identify Mr Hawi, Mr Peter Zervas and Mr Anthony Zervas from having seen photographs in newspapers. It seems that what occurred was that the witness provided descriptions of these three men (and others) in her statement and subsequently purported to assign names to them from what she had seen in newspapers.

1. Counsel for Messrs Abounader, Eken, Padovan and Kisacanin supported the submissions that were made by others.

1. In R v Hawi & Ors (No 2) I made reference to authorities concerned with principles of open justice and a fair trial. There is no need to repeat that reference now but I acknowledge the application of those principles to the present question. In particular I note the following from the judgment of Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344:

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

1. Making a non-publication order is no light matter. I am not persuaded that there are sufficient grounds for making proposed orders 2 and 3.

1. A significant matter to take into account in relation to the concern of counsel for the accused about the potential for contamination of witness testimony is that all of the witnesses have made statements. Many who saw critical events gave evidence at the committal hearing. If there is any departure from what is presently on record it will be open to the Crown, and counsel for the accused, to explore the basis for it. If there is any suggestion of a witness having been influenced by media reporting, that no doubt will be a factor adversely affecting the reliability of the evidence. It would be prudent for the Crown to counsel the witnesses against taking any notice of media reporting until after they have given their evidence.

1. I also take into account an expectation that media reporting will be responsible. I have earlier indicated my awareness that responsible media well know the sensitivity that applies to reporting of a case involving evidence of the type which will be important in this trial. It will be necessary for the media to approach the reporting of this trial with care and circumspection.

1. This judgment, and all others that I have given before the commencement of the trial, and those given in the absence of the jury during the trial, will not be available for publication until the trial has concluded. I do, however, propose that this judgment be made available to the media through the Court's Public Information Officer so that the media is aware of the orders made and of the need for care in the reporting of this trial.

Orders

1. There is to be no publication until further order of:

1. Evidence of photographs, images, caricatures or other depictions of the accused.

2. The names of the witnesses known as SP and AL and of members of their families.

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Decision last updated: 09 February 2012