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

1. 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.

1. Counsel for each of the accused oppose the application.

1. 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.

1. 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.

1. 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.

1. Additional material that was placed before the Court on 23 May 2011 comprised an open affidavit by Deputy Commissioner Naguib Kaldas of 20 May 2011 and a confidential affidavit sworn by him on the same date (together with its Exhibit NK-1); the amended Crown Case Statement filed on 6 May 2011; and two statements relating to witnesses referred to in tabs 1 and 2 of Exhibit NK-1. The latter, by necessity, has to be regarded as confidential as disclosure of its contents would disclose material in the confidential affidavit/Exhibit NK-1.

The previous application

1. In my judgment on the previous application I reviewed at some length the legal issues falling for consideration: public interest immunity; s 130 Evidence Act 1995; and principles of open justice and of a fair trial. It is unnecessary to do so again.

1. The reasons for refusing the previous application may be summarised as follows (the references are all to paragraphs in R v Hawi & ors (No 2) ) .

1. It was accepted on behalf of the Commissioner that the evidence of no individual witness was "crucial" to the prosecution. However, as the orders were sought in respect of all of the civilian eye-witnesses, it was that evidence in its entirely that had to be considered. That body of evidence was "crucial". I referred to it falling very much at the Davis end of the spectrum of significance of testimony rather than the Murphy end: at [108], referring to R v Davis [2008] UKHL 36; [2008] AC 1128; R v Murphy [1990] NI 306; and BUSB v R [2011] NSWCCA 39.

1. I was not satisfied that there would be any specific and known forensic disadvantage to any of the accused in the event that the orders were made, but I did not discount a possibility, albeit minimal, of their being some disadvantage that counsel were unable to foresee: at [109].

1. I was considerably concerned about the scope of the application; a departure from open justice principles in respect of a large number of witnesses that was quite without precedent: at [110].

1. There was a paucity of evidence concerning attempts which had been made to encourage reluctant witnesses to testify, although I acknowledged that the police had adopted a very cautious approach in discussing with witnesses any concerns that they had: at [111].

1. Whilst a number of witnesses had expressed fears, or concerns, about the possibilities of repercussions if their identities were revealed, it was not suggested that each and every witness had done so: at [112]. I also acknowledged that this was not the only basis upon which the application had been put. There was also an overriding concern held by police in relation to the safety of the witnesses in the present case. Similarly, there was a concern about the prospects of witnesses coming forward in similar cases in the future: at [26] and [112].

1. Ultimately, I was not satisfied that a case had been made out for the making of an order that extended to each and every civilian witness; that is, even including witnesses who reside overseas and witnesses who had not expressed any concern at all: at [113] - [114].

1. In the case of those witnesses who had expressed some concern, what had been provided, in the main, was brief and in general terms. In many cases it was confined to the quotation of one or two sentences uttered by a witness: at [115].

1. I accepted a submission made on behalf of the accused Hawi that if any pseudonym order was to be considered, it should be done on a witness-by-witness basis. I indicated that there would need to be a far more detailed explanation of the need for an order in relation to particular witnesses than that which had at that stage been provided: at [116].

1. For these reasons, I concluded that the public interest in the accused having a fair trial in accordance with open justice principles was not outweighed by the public interest in preserving the anonymity of all of the civilian eye-witnesses: at [117].

Events since the previous judgment

1. After the delivery of that judgment, police undertook the task of contacting every one of the civilian eye-witnesses. I am satisfied that this was done in a very careful and sensitive way in order not to create fears or concerns in witnesses where no such fears or concerns were held, or to elevate the level of any fears or concerns that were held. The contact was in the nature of a routine call to organise for the attendance of witnesses to give evidence at the trial. There was no discussion about previous applications by the Commissioner for pseudonym orders at the committal hearing or in this Court unless the topic was first raised by the witness. The witnesses were informed that there was a need to give their names at the commencement of their evidence. Any reaction to that information was recorded in writing. If any fears or concerns were expressed, further questions were asked in a non-leading fashion about their nature and extent.

1. A number of the witnesses who had been contacted up until the swearing of Mr Kaldas' affidavits on 20 May 2011 expressed fears and concerns both about giving evidence and about revealing their identities. What was said by the 20 witnesses who are the subject of the present application is set out in Mr Kaldas' confidential affidavit. Concern was expressed in the submissions of some counsel for the accused about this material being confidential. However, as Mr Bromwich submitted, disclosure of those responses in a number of cases would involve disclosure of material of an identifying nature.

1. Mr Kaldas also deposes that fears and concerns were expressed by a number of witnesses who were not the subject of the present application. There is the suggestion that it would be inappropriate to disclose the identities of such witnesses a significant time before they give their evidence because of the possibility that the concerns of the witnesses may be elevated as the time approaches for them to attend court, and it may be the case that an application will be made in respect of further witnesses at a later time. That is a matter that I do not need to be concerned about in determining the present application.

1. The submissions by counsel for the accused in opposition to the Commissioner's application were largely similar to those that were made on 21 April 2011 in response to the previous application. I will only indicate a response to them where there was an added dimension to them.

1. There was reference to the application being unprecedented in terms of the number of witnesses in respect of whom it was concerned. That is a matter about which I expressed concern in my previous judgment.

1. Reference was made to the inadvertent disclosure by the police of identifying information in respect of some of the witnesses, the point being made that there was no evidence that any of those witnesses had been the subject of any inappropriate contact. An additional aspect of that matter is that it is one of the specific matters that I am required to take into account: s 130(5)(e) Evidence Act 1995.

1. There was reiteration of the point that the evidence of the witnesses was, in effect, "locked in", in that they had all made statements and many had given evidence at the committal hearing. As a result, if any witness did not give evidence in accordance with what was expected of them, the Crown could have recourse to the provisions of s 38 of the Evidence Act .

1. Submissions were made about the lack of any need, or at least the unlikelihood of any need, for witnesses who reside overseas to require any protective measures.

1. It was submitted that it was possible that the police themselves were generating fears and concerns by the nature of their contact with the witnesses. Mr Bromwich responded to this by submitting that this was far from the case as it is not in the interests of the police at all to be dissuading witnesses from giving evidence. That response, with respect, is logical and reflects common sense.

1. It was submitted that the Court should undertake the task of examining each of the witnesses individually. Understandably, that was a submission made without knowledge of the contents of the confidential affidavits. I do not consider that it is necessary for that course to be undertaken and I have considerable reservations about how it could be practical to do so.

1. Mr Driels made the point that there was, to his knowledge, nothing to indicate that any witness had any reasonable and genuine fear of his client, Mr Potrus, as opposed to the group with which he was associated, that is, the Comanchero motorcycle club. The submission was that it was Mr Potrus on trial, not the Comanchero. It is true to say that none of the witnesses have expressed any fear or concern about an individual accused. However, there are fears and concerns about the accused generally because of the clubs with which they are associated.

1. The situation appears to be the same as it was on the previous occasion in terms of any challenge to the evidence of the civilian witnesses being upon the basis of their accuracy and reliability as opposed to their credibility in terms of honesty. None of the witnesses were acquainted with any of the accused. The situation is far removed from that which was the case in some of the authorities referred to in my previous judgment such as Davis , above.

1. The primary concern appears to remain, that being the potential for prejudice if the jury were aware that some of the witnesses were not being identified in court by their own name. Some counsel have expressed the view that the jury should be told at an early stage by way of some appropriate direction. Other counsel took the view that no direction could cure the prejudice.

1. I announced on 24 May 2011 that I would grant the application in respect of 5 of the 20 witnesses. Prior to making my opening remarks to the jury on 25 May 2011, there was further debate amongst counsel on the question of whether a direction should be given, and if so, in what terms. There was no unanimity on the subject. In the end, I resolved that it would be appropriate that I say something in brief terms to the jury during the course of my opening remarks. In my view it was appropriate that the jury be informed so as to avoid any embarrassing complication in the event there was an inadvertent slip later on. It was appropriate to do so in my opening remarks rather than at some other time so as to avoid giving the issue prominence. What I said to the jury seemed to be acceptable to most counsel after an amendment to what I had proposed to say that was helpfully suggested by Mr Young SC.

1. I indicated on 24 May 2011 that I was satisfied that the fears and concerns expressed by each of the witnesses who had been spoken to by police were reasonably and genuinely held. However, I remained of the view I had indicated in my previous judgment that there was a possibility that the concerns of some witnesses, at least, could possibly be placated by further discussion with the police. I understand that the police have not engaged in such discussions to date because of the care and sensitivity with which they have approached the subject with all of the witnesses.

1. In respect of five of the witnesses, however, there was an additional element which I felt warranted the granting of the application. It would be inappropriate for me to set out the detail in this judgment except to say that I am satisfied that these five witnesses are, in my view, particularly vulnerable because of circumstances personal to them. The reasons for that view are based upon material in Mr Kaldas' confidential affidavit of 20 May 2011.

1. I announced in court on 24 May 2011 that the application of the Commissioner was granted in respect of five of the witnesses. On 26 May 2011 I announced the orders made as a consequence. Those announcements were in the following terms.

Orders

1. I grant the application in respect of the witnesses identified by the numbers 98, 99, 132, 245 and 247. The application is refused in respect of the other witnesses.

1. I make the following orders, the first being a reiteration of that which I made on 24 May 2011:

1. There shall be no publication of any evidence, submissions or references in court, or information derived therefrom, in respect of the application.

2. The true names of the witnesses identified by the numbers 98, 99, 132, 245 and 247 are not to be adduced in evidence or otherwise disclosed in the course of these proceedings.

3. The witnesses referred to in order 2 are to give evidence in these proceedings under pseudonyms.

4. There shall be no publication or other disclosure of any matter that is likely to lead to the identification of the witnesses referred to in order 2.

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Decision last updated: 09 February 2012