R v Hawat (No 1) [2019] NSWSC 1583

Supreme Court New South Wales

Medium Neutral Citation: R v Hawat (No 1) [2019] NSWSC 1583 Hearing dates: 8, 12 and 14 November 2019 Date of orders: 14 November 2019 Decision date: 19 November 2019 Jurisdiction: Common Law Before: N Adams J Decision: The application by the Crown for material to be released under s 45(5) of the Crime Commission Act is refused. Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity Legislation Cited: Crime Commission Act 2012 (NSW), s 21, s 24, s 25, s 27, s 39, s 45 Cases Cited: The application by the Crown for material to be released under s 45(5) of the Crime Commission Act is refused. Category: Procedural and other rulings Parties: Regina (Crown) Osama Hawat (Accused) New South Wales Crime Commission (Applicant) Representation: Counsel: Mr T McCarthy (Crown) Mr J Kelly SC (Accused) Mr P Bodor QC (Applicant) Mr R Bhalla (Applicant)

Solicitors: Solicitor for Director Public Prosecutions (Crown) Dib & Associates Lawyers (Accused) Crown Solicitor's Office (Applicant) File Number(s): 2017/194590

Judgment

Background 1. On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. On 7 December 2018, his matter was listed for a five week trial in this Court commencing on 11 November 2019. The indictment is framed in these terms: "On December 2018, the Director of Public Prosecutions on behalf of Her Majesty charges that OSAMA HAWAT on 25 October 2016, at Georges Hall in the State of New South Wales, did murder Hamad ASSAAD. S 18(1)(a) Crimes Act 1900 Law part code 2 AND the Director of Public Prosecution FURTHER CHARGES in the ALTERNATIVE to count 1 that Whereas on 25 October 2016, at Georges Hall in the State of New South Wales, unknown persons did murder Hamad ASSAAD, Before the said serious indictable offence was committed, OSAMA HAWAT did assist the unknown persons to commit the said serious indictable offence. S18(1)(a) Crimes Act 1900 Law part code 2 S 346 Crimes Act 1900 Law part code 53065" 1. It is not suggested that the accused was one of the shooters. As the summary of the Crown case statement below reveals, the Crown's primary case is that he was part of a joint criminal enterprise with the two unidentified shooters to murder the deceased with his primary role being surveillance. The Crown brings an alternate case that the accused was an accessory before the fact to the shooting by the two unknown persons. 2. On 7 November 2019, two working days before the trial was due to commence, the Office of the Director of Public Prosecutions ("ODPP") filed two notices of motion. The first notice of motion sought orders under s 45(4) and s 45(5) of the Crime Commission Act 2012 (NSW). Specifically, it requested that transcripts of compulsorily obtained evidence given by five specified witnesses to the Crime Commission be provided to the Supreme Court (s 45(4)) and then, after consideration of them, that the Court order release of them to the ODPP and the accused (s 45(4)). The evidence was said to pertain to the circumstances of the shooting with which the accused is charged. 3. The second notice of motion sought that the trial date of 11 November be adjourned on account of the orders sought in the first notice of motion. Both motions were supported by affidavits from the ODPP instructing solicitor. 4. The motions were listed for hearing before me on Friday, 8 November 2019. Before setting out what happened on that day, it is necessary to first set out the Crown case as summarised from the Crown case statement (attached to the Notice of Prosecution case filed on 1 October 2019) as well as the legislation upon which the ODPP brings these applications.