R v Hamoui [No 2] [2004] NSWSC 1053

New South Wales Supreme Court

CITATION : R v Hamoui [No 2] [2004] NSWSC 1053 18/10/04 - 22/10/04 HEARING DATE(S) : 25/10/04 - 29/10/04 1/11/04 - 5/11/04 8/11/04 - 11/11/04 JUDGMENT DATE : 11 November 2004

JURISDICTION: Common Law Division Criminal List JUDGMENT OF : Kirby J DECISION : The evidence obtained in consequence of the forensic procedure should be admitted.

CATCHWORDS : Criminal Practice & Procedure - murder trial - application to exclude evidence under s138 Evidence Act 1995 - application for Detention Warrant - whether contained false statements - whether impropriety or illegality. Crimes Act 1900 LEGISLATION CITED : Forensic Procedure Act 2000 Evidence Act 1995 CASES CITED : R v Hamoui [No 1] (unreported, 11.11.04) Regina PARTIES : Abdul Razzak Hamoui

FILE NUMBER(S) : SC 70076/03 COUNSEL : T R Bailey (Crown) M Ierace SC (Accused) SOLICITORS : R Lewis (DPP sol) C Taylor (Hardin Law)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUSTICE DAVID KIRBY

Thursday 11 November 2004

70076/03 REGINA v ABDUL RAZZAK HAMOUI

JUDGMENT [No 2] - Application to exclude evidence under s138 Evidence Act 1995. 1 KIRBY J: On the morning of Thursday 28 June 2001 the body of Julie Haklane was found. The officer in charge of the investigation was Detective Senior Constable Garth Hazell. Detective Hazell attended a briefing by Detective Inspector Henderson and other senior officers at Granville. The briefing provided information relating to the disappearance of Julie Haklane the previous Monday, and the interview with her boyfriend, Abdul Razzak Hamoui, the next day. 2 The police determined that they would apply for a Search Warrant of Mr Hamoui's home and a Detention Warrant (under Pt10A Crimes Act 1900) to further interview Mr Hamoui. 3 At 8.00 pm Mr Hamoui was brought by police vehicle to the Fairfield Police Station. In accordance with the requirements of Pt10A, he was given into the custody of the Custody Manager, Senior Constable Mammone. An explanatory memorandum concerning his rights under Pt10A was provided. A Custody Management Record was compiled (Exhibit 2 on the Voir Dire). 4 Detective Hazell delegated to Detective Hinds the task of seeking a Detention Warrant from an after hours Magistrate. Detective Hinds had also been at the morning briefing of Inspector Henderson. He had, in addition, spoken to Inspector Henderson, Detective Sergeant Jacobs, and Detective Senior Constable Dorrough, who had each become involved in aspects of the investigation. 5 Between 8.45 pm and 9.01 pm Detective Hinds completed the application for the Detention Warrant and the affidavit in support. Mr Hamoui was invited by Detective Hazell to nominate a support person. The invitation was extended, not for reasons of ethnicity or language difficulties, but because Detective Hazell wished to interview Mr Hamoui in respect of a serious matter. Although Mr Hamoui spoke good English, Detective Hazell believed it appropriate that he should have a support person if he wished. Mr Hamoui nominated his sister, Dania. Dania came to the police station. The Warrant was not granted, however, until 10.42 pm. Questioning in fact began at 11.45 pm. It was clear earlier in the evening that the interview may go past midnight. Mr Hamoui's sister said that she could not be present after midnight, since she was required to work. Mr Hamoui was asked to nominate an alternative support person. He nominated his cousin, Fawaz Hamawi. Arrangements were made for Mr Hamawi to come to the police station. He was present throughout the interview. 6 At the conclusion of the interview Mr Hamoui was asked to consent to a forensic procedure. He was given an explanation. He consented to that procedure. He signed the requisite form. A person authorised under the Forensic Procedure Act 2000 took a buccal swab for DNA purposes. 7 Counsel for the accused asserted that the application by Detective Hinds to the Magistrate was false in three respects which were material. It was not suggested that the falsity had come to the notice of Mr Hamoui, or influenced the answers he provided during the course of the interview. Nor was it suggested that the alleged falsity had influenced Mr Hamoui's consent to the forensic procedure. The falsity, nonetheless, was said to enliven the discretion under s138(1) of the Evidence Act to exclude evidence obtained improperly or in contravention of an Australian law.