R v Hawat (No 2) [2019] NSWSC 1699

Supreme Court New South Wales

Medium Neutral Citation: R v Hawat (No 2) [2019] NSWSC 1699 Hearing dates: 18 November 2019 Date of orders: 02 December 2019 Decision date: 02 December 2019 Jurisdiction: Common Law Before: N Adams J Decision: The material contained in LD 6 and LD 8 is admissible. Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – relevance – probative value – risk of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW), s 55, 56, 137 Cases Cited: Colby v The Queen [1999] NSWCCA 261 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Hawat (No 3) NSWSC 1701 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Category: Procedural and other rulings Parties: Regina (Crown) Osama Hawat (Accused) Representation: Counsel: Mr T McCarthy (Crown) Mr J Kelly SC (Accused)

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

Judgment

Background 1. On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. Mr Assad was gunned down outside his home by two masked gunmen on the morning of 25 October 2016. It is not alleged that the accused was either of these the two shooters. Rather, the Crown case is that the accused conducted surveillance on the deceased's home before and on the day of the shooting. The accused is said to be liable for the murder of Mr Assaad on alternate bases: either he was part of a joint criminal enterprise with the two unidentified shooters to murder the deceased or he was an accessory before the fact to the murder. 2. A number of pre-trial rulings were sought in relation to some lawfully obtained telecommunication intercepts and listening device recordings. Ultimately most of these were either agreed upon between the Crown and the accused or resolved before me. There were in the end only three transcripts said to contain admissions made by the accused I was asked to rule on. These were labelled LD 6, LD 8 and LD 14. Mr Kelly for the accused indicated that the objections were on the basis of relevance (s 55 Evidence Act 1995 (NSW)) and the risk of unfair prejudice (s 137 Evidence Act). 3. On 18 November I ruled that LD 6 and LD 8 were admissible and indicated that I would provide my reasons at a later date. These are those reasons. In relation to LD 14 it was agreed that further evidence was required to be given on a voir dire before I could rule on it. On 28 November 2019, I ruled that the relevant portions of LD 14 were admissible: R v Hawat (No 3) NSWSC 1701.