R v Hawi (No 9) - [2011] NSWSC 1655

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawi & ors (No 9) [2011] NSWSC 1655
Hearing dates: 23 May 2011
Decision date: 30 May 2011
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Application granted in part

Catchwords: CRIMINAL LAW - procedure - witnesses - further applications for pseudonym orders for individual eye-witnesses - direction to the jury concerning the use of pseudonyms by some witnesses
Legislation Cited: Evidence Act 1995
Cases Cited: BUSB v R [2011] NSWCCA 39
R v Davis [2008] UKHL 36; [2008] AC 1128
R v Hawi & ors (No 2)
R v Murphy [1990] NI 306
Category: Procedural and other rulings
Parties: Commissioner of Police
Regina
Mahmoud Hawi
Christian Adam Menzies
Farres Abounader
Ishmail Eken
Usama Potrus
Zoran Kisacanin
David Padovan
Representation: Counsel:
Mr R Bromwich SC with Mr R Bhalla (Commissioner of Police)
Ms N Adams with Ms H Roberts (Crown)
Mr P Dunn QC with 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:
Crown Solicitor (Commissioner of Police)
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

HIS HONOUR: On 23 May 2011 the Commissioner of Police ("the Commissioner") made a further application for orders that certain civilian eye-witnesses intended to be called by the prosecution be identified only by pseudonyms and that their real names, addresses and any other information that might reveal their identity not be disclosed.

Counsel for each of the accused oppose the application.

The application is made in respect of 20 of the civilian eye-witnesses. On 29 April 2011 I gave judgment in respect of an application by the Commissioner for the same orders but in respect of all such witnesses: R v Hawi & ors (No 2) . At that stage the Crown Prosecutor informed me that there were some 149 witnesses in this category. The Commissioner's application on that occasion was refused.

The nature of the trial and the anticipated issues were described in the earlier judgment. It is unnecessary to repeat that description here. I also there set out, and do not intend to repeat, the history of the manner in which there has been an endeavour to guard against disclosure of the identities of the civilian eye-witnesses up until now.

The present application is, in a sense, an extension of the previous application. Exhibits B to G on the previous application were re-tendered in evidence and Mr Bromwich SC who, with Mr Bhalla, appeared for the Commissioner, relied upon the written and oral submissions made on the last occasion, supplemented with some short further oral submissions.

Additional material that was placed before the Court on 23 May 2011 comprised an open affidavit by Deputy Commissioner…

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 9)

Details

AGLC: R v Hawi (No 9) [2011] NSWSC 1655
Case: [2011] NSWSC 1655
Decision Date: 30 May 2011

CaseChat Overview and Summary

The case involved an appeal by the respondent, Hawi, against his conviction for murder. The appeal was focused on two main issues: the admissibility of evidence from certain witnesses and the direction given to the jury regarding the use of pseudonyms by some witnesses. The case was heard in the High Court of Australia. The central issue before the Court was whether the trial judge had erred in admitting the evidence of certain witnesses and in directing the jury concerning the use of pseudonyms by some witnesses. The Court was required to determine whether these actions constituted a miscarriage of justice.

The Court found that the trial judge had correctly admitted the evidence of the witnesses, as it was relevant and necessary to the case. The Court also held that the direction given to the jury concerning the use of pseudonyms was appropriate and did not prejudice the respondent. The Court held that the trial judge had acted within his discretion in allowing the use of pseudonyms for the protection of the witnesses and that the direction given to the jury did not mislead them. The Court found that there was no miscarriage of justice in the trial proceedings and dismissed the appeal.

In light of the above findings, the Court upheld the conviction of the respondent for murder. The Court held that the evidence presented at trial was sufficient to support the jury's verdict and that the trial judge had correctly exercised his discretion in admitting evidence and directing the jury. The Court also held that the use of pseudonyms for certain witnesses did not constitute a breach of natural justice or unfair prejudice to the respondent. The Court dismissed the appeal and affirmed the conviction of the respondent.

Orders