R v Hawi (No 7)

[2011] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 7) [2011] NSWSC 1653
Hearing dates:	19 May 2011
Decision date:	19 May 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Application for view granted
Catchwords:	CRIMINAL LAW - evidence - view of crime scene by jury
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Milat, NSWSC, 12 April 1996
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 : A picture is said to be worth a thousand words; sometimes a firsthand look can be worth a thousand pictures.

1. This trial is concerned with events that occurred at the Qantas Domestic Terminal, Terminal 3, at Sydney Airport on 22 March 2009. The Crown case is that some of the accused were involved in an affray in the vicinity of Gate 5 and that there was a subsequent riot and murder in the departure hall.

1. The Crown has today made an application that the jury be taken to a view of the scene. There were a number of reasons advanced by the Crown Prosecutor in her submissions in support of the application.

1. Significant renovations have been carried out in the departure hall since 22 March 2009. The Crown Prosecutor referred to the very distinct possibility that jurors may have seen the terminal either before it had been renovated or after it had been renovated. It was submitted that a view would be of considerable benefit so that the jury can be accurately appraised of the scene and explanations given as to how it appeared on 22 March and what subsequent changes have been made.

1. It was submitted that issues such as distances and the general layout of the terminal might be dealt with by way of photos and plans but the jury would be able to make a better assessment of those aspects by seeing the scene for themselves. For example, there is a significant part of the evidence which is concerned with the distance between some bi-fold doors which lead from the secure to the unsecure areas of the terminal. Whilst that distance may be measured, it was submitted that a better perspective of that distance can be obtained by seeing it personally.

1. The response by counsel for the accused was varied. Mr Grant on behalf of the accused Hawi opposed the application. He questioned the utility of a view, noting that the conditions at the scene had undergone considerable change. He referred to the fact that the jury will have before it CCTV footage, scale plans, still photographs, eye witness accounts and the evidence of crime scene examiners. The submission was, in effect, that that body of evidence would more than adequately acquaint the jury with the scene of the events in question.

1. As to the jurors having a pre-existing personal knowledge of the scene, Mr Grant reminded me that it would be necessary to give the jury a direction, sometimes referred to as a " Skaf direction", which would overcome that problem by stressing to the jury that they must be guided by the evidence as opposed to any personal knowledge they may have, or may acquire by their own observations.

1. There was some discussion during the course of submissions about whether jurors would be permitted to attend Terminal 3 on their own, for their own purposes, during the course of the trial. It is not practical, nor fair, to impose upon the jury a requirement that they not do so. This, to my mind, is a matter that militates in favour of having a properly supervised, Court sanctioned, view. It obviates the risk of jurors assessing the evidence from their own assessment of the scene without an accurate explanation of the changes which have occurred.

1. Mr Gordon, on behalf of the accused Kisacanin, did not "formally oppose" the application but raised a matter for consideration. That was to do with the indication to be given to the jury of the effect of the renovations that had been carried out in terms of the removal of check-in counters in the departure hall. That is a logistical matter which needs to be borne in mind but does not bear upon the merits of the application itself.

1. Mr Stratton SC, on a behalf of the accused Menzies, supported the application. It was his submission that the CCTV footage does not provide an adequate representation of the actual layout and he submitted that a better appreciation of distance could be obtained by viewing the scene in person.

1. Mr Stratton drew attention to the evidence of two critical witnesses in the prosecution case, that is, the witnesses known as SP and AL. SP has, apparently, given accounts of witnessing the fatal assault upon the deceased and has given accounts which vary to some extent in what is said about where that occurred. In the case of AL, there is, apparently, a question as to whether the witness had the perspective of the events that he claimed to have had. The submission was that the jury attending the scene to view it for themselves would enable them to better assess the reliability, and perhaps credibility, of those two witnesses.

1. Mr Trevallion, on behalf the accused Mr Abounader, and Mr Conwell, on behalf of the accused Mr Padovan, supported the application, whereas Mr Driels, on behalf of the accused Potrus, and Mr Felton, on behalf of the accused Eken, did not wish to be heard.

1. The application is brought pursuant to section 53 of the Evidence Act 1995 which, relevantly, is in the following terms:

53 Views

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) ...

(e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered.

...

1. It was held by Hunt CJ at CL in R v Milat , NSWSC, 12 April 1996, unreported, that there is no requirement that the accused be present at a view; although he or she should have the opportunity of being present. In the present case, counsel for each of the accused have previously indicated that their clients do not wish to be present. The legal representatives of each accused, as well as the Crown, would of course be present.

1. I am satisfied that a view will assist the jury in understanding the evidence. The Crown proposes to call some 140 witnesses who observed certain aspects of either or both of the two incidents. They will each be giving evidence of what they observed from vantage points that vary greatly. Whilst I expect that many jurors might well have a broad familiarity with the terminal, it will assist the jury in their assessment of the evidence of many of the witnesses to have a better understanding of the scene and to have particular locations of interest pointed out to them.

1. There is no danger that the view might be unfairly prejudicial or confusing, but there is a risk that it might be misleading because the place to be inspected has materially altered. I indicated earlier that the layout of the terminal has undergone significant alteration since 22 March 2009. Most significantly this involves the check-in counters between and around which the riot is said to have occurred having been completely moved away from where they were on the date. It is expected that evidence will be given by many witnesses as to what they observed by reference to the location of these counters.

1. The Crown proposes to allay this concern by having the area that was formally occupied by the check-in counters marked out in some way so that the jurors would be able to obtain an appreciation of where they were on 22 March 2009. In these circumstances I am satisfied that any potential for the view to be misleading will be avoided.

1. Qantas, who have control over the terminal, have indicated to the Crown a range of times in which it would be convenient to hold the view. Convenience is a relative term in this context, having regard to the fact the location is a busy public place. The Crown has suggested that the most suitable time in the range suggested by Qantas would be on a Tuesday at midday. Apparently Tuesday is the quietest day of the week and midday is the quietest time. The alternative times suggested by Qantas were all out of business hours. Conducting a view out of business hours might be a slightly better option in terms of the terminal being less busy. However, having regard to the time that it would take to convey jurors to and from Mascot, and the time that the view itself will require, that option in my judgment would involve too much inconvenience for jurors.

1. Having regard to all of the foregoing matters I am satisfied that it is appropriate to grant the application. Pursuant to section 53 of the Evidence Act I order that an inspection be held at terminal 3 at Sydney Airport.

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Decision last updated: 09 February 2012