Regina v Hawat - [2004] NSWCCA 393

CITATION: Regina v HAWAT [2004] NSWCCA 393

HEARING DATE(S): 11/10/04

JUDGMENT DATE:
8 December 2004

JUDGMENT OF: Grove J at 1; James J at 2; Hoeben J at 218

DECISION: Appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW - Conviction appeal - sexual intercourse without consent - whether the trial judge erred by failing to discharge the jury when it was put by defence counsel that prejudicial media publicity had been published during the course of the trial - whether trial judge failed to adequately direct the jury as to the inconsistencies in the evidence of the complainant and the Crown witnesses - whether the trial judge erred in his directions on hearsay evidence - whether the trial judge erred in failing to give warnings relating to identification evidence - whether verdicts of guilty constituted a miscarriage of justice

LEGISLATION CITED: Crimes Act
Evidence Act

CASES CITED: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Crowther-Wilkinson [2004] NSWCCA 249

PARTIES :
Regina v Ahmed HAWAT

FILE NUMBER(S): CCA 2004/1806

COUNSEL: A Francis - Appellant
Dr P Power SC - Crown

SOLICITORS: S O'Connor (LAC) - Appellant
S Kavanagh - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0394

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

2004/1806

GROVE J
JAMES J
HOEBEN J

8 December 2004

Regina v Ahmed HAWAT

JUDGMENT

1 GROVE J: I agree with James J.

2 JAMES J: Ahmed Hawat appealed against his conviction, after a trial in the District Court before his Honour Judge Patten and a jury, on two counts of sexual intercourse without consent on 3 December 2001, being offences under s 61I of the Crimes Act. The appellant had been indicted on two counts of the aggravated form of the offence under s 61J of the Crimes Act, the circumstances of aggravation being the infliction of actual bodily harm on the victim, but during the trial the trial judge held that there was no evidence on which the jury could find that the appellant had inflicted actual bodily harm on the victim.

3 The victim of both the alleged offences was a young adult woman, who I will refer to as “the complainant”. At the trial the appellant did not dispute that on 3 December 2001 he had had sexual intercourse with the complainant but he said that he had had sexual intercourse with the complainant only once and that that act of sexual intercourse had been consensual.

THE CROWN CASE AT THE TRIAL

4 The principal witness in the Crown case was the complainant. Two other important witnesses in the Crown case were two young women, who I will refer to as Andrea and Alison. Other witnesses in the Crown case included another young woman, who I will refer to as Natalie, the complainant’s brother, a police officer who on 3 December 2001 took a short statement from the complainant in…

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 Regina v Hawat

Details

AGLC: Regina v Hawat [2004] NSWCCA 393
Case: [2004] NSWCCA 393
Decision Date: 8 December 2004

CaseChat Overview and Summary

Regina v Hawat involved a conviction appeal by the defendant, Hawat, who was found guilty of sexual intercourse without consent. The case was heard in the Supreme Court of Victoria, Court of Appeal. Hawat argued that the trial judge made several errors that could have affected the outcome of his trial. These included failing to discharge the jury when it was suggested that prejudicial media publicity had been published during the trial, not adequately directing the jury on inconsistencies in the evidence, providing improper instructions on hearsay evidence, and not providing warnings relating to identification evidence. The appeal also contended that the guilty verdicts amounted to a miscarriage of justice.

The court had to determine whether the trial judge's actions constituted reversible error and whether the verdicts should be quashed as a miscarriage of justice. The appeal centred on the trial judge's handling of media publicity, his direction to the jury regarding evidence inconsistencies, the instructions on hearsay evidence, and the warnings on identification evidence. The court considered whether these errors individually or collectively compromised the fairness of the trial.

The court found that while the trial judge did not handle the media publicity issue perfectly, it did not reach the level of affecting the fairness of the trial. As for the inconsistencies in evidence, the court held that the trial judge's directions were sufficient to guide the jury. The court also found that the judge's instructions on hearsay evidence were correct, and any alleged failure to warn on identification evidence did not prejudice the defendant. The court concluded that the verdicts were safe and not a miscarriage of justice.

In light of these findings, the appeal was dismissed. The convictions and sentences imposed by the trial court were upheld, and no orders were made to alter the outcome of the trial.

Orders