Supreme Court New South Wales Medium Neutral Citation: R v Hawi & ors (No 10) [2011] NSWSC 1656 Hearing dates: 14 June 2011 Decision date: 28 June 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme Decision: Evidence admissible Catchwords: CRIMINAL LAW - procedure - disclosure obligations - compulsory disclosure pursuant to orders made under statutory case management provisions - sanctions for prosecution non-compliance - whether police investigators are within the concept of the "prosecutor" for the purposes of the Criminal Procedure Act 1986 Legislation Cited: Criminal Procedure Act 1986 Criminal Procedure Amendment (Case Management) Act 2009 Director of Public Prosecutions Act 1986 Category: Procedural and other rulings Parties: Regina Christian Adam Menzies Ishmail Eken Representation: Counsel: Ms N Adams with Ms H Roberts (Crown) Mr J Stratton SC (Menzies) Mf P Young SC (Eken) Solicitors: Solicitor for Public Prosecutions (Crown) Hunter Flood Pty Limited (Menzies) Purcell Felton Lawyers (Eken) File Number(s): 2009/151392 2009/60143; 2009/157332 Judgment 1HIS HONOUR: The Crown proposes to call as a witness Mr Rodney Moore. Mr Stratton SC, on behalf of the accused Christian Menzies, has objected. He relies upon the sanction provided in s 146(1) of the Criminal Procedure Act 1986. Mr Young SC, on behalf of the accused Canan (aka Ishmail) Eken, joined in the objection. 2The evidence is of some significance. According to his statement, Mr Moore witnessed the incident that the Crown alleges constituted an affray in the vicinity of Gate 5 at the Qantas Domestic Terminal at Sydney airport on 22 March 2009. The statement includes the following: 4. About 2pm I was sitting at Gate Lounge 5. My wife and I were just resting there. I heard some swearing. I heard one bloke say, "I've fuckin got something for you". Middle eastern, possibly Lebanese. He was 6 foot 2 inches tall. He was wearing a black T shirt and jeans. He had a short back and side haircut (which) looked like it had been razored. 5. I saw the man who had been swearing walk over to an electric cart. I then saw another male who was also wearing a black T shirt and jeans. He was also about 6 foot tall. He then king hit another male. This man was about the same height but was a bigger build. I then saw both males who were wearing black start to punch him. I saw the two males then punch an older male who went straight to the ground. They then started to kick him 3 or 4 times. 3The statement was taken by an Australian Federal Police officer, Mark Semmens, on 22 March 2009. It was handwritten in the officer's notebook. (I have made some spelling and punctuation corrections in the above extract). 4It is the Crown case that the accused Menzies and the accused Eken were participants in the alleged affray at Gate 5. More specifically, the Crown alleges that Mr Menzies punched Mr Derek Wainohu "a couple of times": Crown Case Statement at [51]. 5In her opening address to the jury, the learned Crown Prosecutor described Mr Menzies as being about 6'3" tall, wearing grey tracksuit pants and a black T-shirt with a logo (T47). She described Mr Eken as being about 6'5" tall, wearing a black T-shirt with yellow markings on it (T46-47), the markings being a Comanchero logo, and brown pants (T54). She described Mr Wainohu as wearing a black T-shirt, pants and carrying a bag (T54). 6The Crown Prosecutor also referred in her opening address to an anticipation that the jury would hear evidence of "some general descriptions by eyewitnesses consistent with Christian Menzies having been involved in both the affray and the riot, and by that I mean by his height and by his clothing" (T74). 7The accused were all charged on various dates in 2009. They were committed for trial, after a lengthy committal hearing, in September 2010. The jury were empanelled in this trial on 24 May 2011. The statement by Mr Moore was not disclosed by police to the prosecutors until Friday 3 June 2011. The prosecutors, in turn, disclosed it to the representatives of each of the accused on Monday 6 June 2011. Mr Stratton accepted that this was not as a result of any mala fides on behalf of the police and he also accepted that the prosecutors were previously unaware of the existence of the statement. Evidence was led on the voir dire which provides some explanation for the late disclosure. 8I have mentioned that Federal police officer Semmens recorded the statement of Mr Moore in the officer's notebook on 22 March 2009. Mr Semmens, himself, made a statement on 31 March 2009. Within that statement appears: "8. ... After I completed that I stayed and guarded the crime scene until detective Senior Constable Swan asked me to take a witness statement from Rodney James MOORE. After taking that statement ... " 9The statement by Mr Semmens was received by investigators on or before 21 May 2009. It was entered into their "eagle.i" database by Detective Sergeant Walpole and classified as statement number 206. The notebook entry, that is the statement by Mr Moore, was not annexed to the statement. 10Investigators adopted an unusual practice in this matter because they held a concern for the safety of civilian witnesses. They obliterated from all documents served as part of the brief of evidence all the names of the civilian witnesses and any other identifying information. The witnesses were referred to by number rather than name. In accordance with this practice, the statement of Mr Semmens, which was included in the brief of evidence provided to the Office of the Director of Public Prosecutions, and served upon the accused's representatives, had Mr Moore's name obliterated. However, no number or other means of identifying who it was that Mr Semmens had obtained a statement from was substituted. Thus, the prosecution and defence lawyers were aware that Mr Semmens had obtained a statement from a witness, but they had no way of knowing who the witness was. It would be understandable that it would be assumed that this was a witness statement that was included in the brief of evidence. Regrettably, it was not. 11A copy of Mr Semmens' notebook entry was received by investigators sometime on or before 25 September 2009. Plainclothes Constable Scott Thompson, an officer of very limited experience, entered the details in eagle.i on that date. He scanned the relevant notebook pages but, instead of categorising it as a "statement", it was categorised as an "other text document". The latter was a category used for a wide variety of miscellaneous documents. Documents that were categorised as a "statement" were easily identified as requiring disclosure whereas "other text documents" were not. 12Constable Thompson also prepared on 25 September 2009 a brief description of the content of the notebook entry. He added: "Rodney was contacted 25/9/2009 and asked if he remembered anything further form (sic) that day, he did not. He was asked if he could give any further descriptions of the males or if he could recognise them again, he could not. Rodney and his wife [text obliterated] Inv passed on S/F Metter's contact numbers and informed him that if either him of (sic) his wife remember anything further they should contact Inv ASAP. The altercation at Gate 5 is very well covered via numerous independent witness statements, and any formal statement from Rodney or his wife would be pointless. Rodney MOORE's initial notebook statement is sufficient and is recorded in S/Cst Mark SEMMENS (AFP) notebook". (The abbreviation "Inv" apparently is a reference to "investigator" or "investigators"). 13Constable Thompson's handling of the notebook entry, including the notes above, was reviewed by Detective Sergeant Walpole. He said in his evidence on the voir dire that he did not have an independent recollection now of his thought processes on 25 September 2009. The best he could do was to suggest that he must have assumed that there was no problem with the scanned notebook pages being entered as an "other text document" because he had also assumed that Mr Moore's statement was already within eagle.i and classified as a "statement". Detective Walpole also said in his evidence that there was no advantage to be gained by police in not disclosing the existence of the statement. There is much force in that, but I note in any event the acceptance by Mr Stratton that this was a case of inadvertence rather than deliberate concealment. 14It was sheer happenstance that the existence of the statement came to light at all. The Crown Prosecutor's instructing solicitor recently was preparing a response to a request by solicitors acting for the accused Hawi for a copy of notebook entries made by any Australian Federal Police officer. She reviewed all federal police officers' statements and came across the one by Mr Semmens. She noted that a copy of the notebook entry referred to in it was not annexed. She made inquiries which resulted in the statement being found. 15The objection by Mr Stratton was taken in reliance upon s 146 of the Criminal Procedure Act : 146 Sanctions for non-compliance with pre-trial disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division. 16Section 146 is part of the case management provisions in Ch 3 Pt 3 Div 3 that were inserted by the Criminal Procedure Amendment (Case Management) Act 2009 and took effect from 1 February 2010. 17At a pre-trial directions hearing on 11 March 2011, upon the application of the Crown Prosecutor, I made an order pursuant to s 141 that the prosecutor give notice in accordance with s 142; that the accused give notice of the defence response to the prosecution's notice in accordance with s 143; and that the prosecutor give notice of the prosecution response to the defence response in accordance with s 144. A timetable for compliance was specified. 18Section 142, which sets out the prosecutor's obligations pursuant to such orders, is in these terms: 142 Prosecution notice-court-ordered pre-trial disclosure For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following: (a) the matters required to be included in the notice of the prosecution case under section 137, (b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person, (c) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor. 19The incorporation of the provisions of s 137 in s 142(a) is significant as s 137 relevantly provides: 137 Notice of prosecution case to be given to accused person (1) The prosecutor is to give to the accused person notice of the prosecution case that includes the following: ... (c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial, ... 20The proposal of the Crown "to adduce at the trial" the evidence of Mr Moore did not arise until 3 June 2011 because until that date it was completely unaware of the existence of his statement. Accordingly, there was no obligation on the Crown prior to that date to give to the accused notice by way of providing a copy of his statement. 21It was in accordance with the ongoing obligation of disclosure, previously required generally under the common law, but in the present context also under s 147, that the Crown disclosed the statement of Mr Moore on 6 June 2011. 22What of the failure of police to disclose the statement of Mr Moore to the prosecutor? There is a statutory obligation upon police officers investigating alleged indictable offences to disclose to the Director of Public Prosecutions all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused: s 15A(1) Director of Public Prosecutions Act 1986. That duty is a continuing one: s 15A(2). 23There was a breach of that provision. However, as earlier indicated, it is common ground that this was completely inadvertent. Whilst referring me to the provisions of the Director of Public Prosecutions Act , Mr Stratton maintained his focus upon the provisions of the Criminal Procedure Act . He submitted that the disclosure requirements in the latter should be construed so as to incorporate the police within the prosecutor's obligations and therefore attract the sanction in s 146(1). With the greatest of respect to Mr Stratton I was not persuaded by such submissions. 24The disclosure obligations under Ch 3 Pt 3 Div 3 are concerned with the prosecutor. The term "prosecutor" is defined in s 3: 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor. 25I am unable to see that "prosecutor", in the context of a case prosecuted on indictment by the Director of Public Prosecutions, can be construed so as to include police investigators. Accordingly, I am satisfied that the failure of police to disclose the statement of Mr Moore was not a failure to disclose of a type that renders available the sanction in s 146(1). 26It remains, however, to be considered whether there has been such unfairness as a result of the late disclosure of Mr Moore's evidence such that it should be excluded in any event. 27Mr Stratton referred to the fact that his client had been required by the orders I made on 11 March 2011 to make disclosure and that he did so in the absence of knowledge that there would be evidence in the trial by Mr Moore. However, upon closer examination of this submission, it became clear that nothing had been disclosed at all in terms of Mr Menzies' case in respect of the affray. In other words, there is no embarrassment or detriment to Mr Menzies' defence by anything he was compulsorily required to disclose for the simple reason that he failed to comply with the requirement that he disclose, pursuant to s 143(c), whether he took issue with the Crown's contention that he was a participant in the Gate 5 affray, and that in the course of this he punched Mr Wainohu. Theoretically, and somewhat ironically, that would leave Mr Menzies himself open to the application of the sanction in s 146(1). I note that the obligation to comply with the requirements of the pre-trial disclosure imposed upon Mr Menzies is a continuing one: s 147(1). 28A more significant issue is the terms of Mr Stratton's opening address to the jury. It included him asserting that he expected that the jury would not hear any eyewitness identifying Mr Menzies taking part in the fighting at Gate 5 "or even give a description which closely matches the appearance of the accused as it was on 22 March 2009" (T116.42)(emphasis added). 29A number of points should be noted about this. First, opening addresses are about the evidence that counsel "expect" that the jury will hear. Juries are told, as they were in this trial, that they are not evidence in themselves. Secondly, it is sometimes the case that counsel tell juries what they "expect" the evidence will be, only to find that the evidence is not exactly as "expected". 30The third point is that the Crown has indicated that Mr Moore has indicated in a conference with prosecutors that the person he described in paragraph 4 of his statement was carrying a bag which he put down after walking over to an electric cart. The description of the man in paragraph 4 of Mr Moore's statement, coupled with the first sentence in paragraph 5 and that additional evidence disclosed by Mr Moore in conference, means that the person was likely Mr Derek Wainohu and not the accused Menzies at all. The description given in the balance of paragraph 5, the Crown submitted, "could" match Mr Menzies, but that is as high as it goes. The Crown does not contend that it "closely matches" him, and with that I agree. 31Finally, and regardless of the third point, it is really moot whether the descriptions provided by Mr Moore in paragraphs 4 and 5 of his statement meet the characterisation of descriptions which "closely match" Mr Menzies. That was Mr Stratton's concern. But the descriptions are fairly broad. With all of the evidence the jury has heard in this trial, at least to date, it is most likely that they will regard descriptions as being general impressions more than accurate, definitive and pin-pointing of a particular accused. I exclude from this anything that is particularly unique, for example, a man dressed in predominantly white clothing (i.e. the accused Hawi). 32My conclusion is that there is no cause for embarrassment or prejudice in the manner in which Mr Stratton opened to the jury in response to the Crown case as he then understood it to be, in the light of it subsequently being disclosed that the Crown sought to add to its case the evidence of Mr Rodney Moore. 33The objection is overruled. The evidence is admissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2012