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. Admissibility of LD 6 1. A lawful surveillance device was placed in the accused's vehicle and home. Various recordings were made and transcribed. 2. The content of the conversation in LD 6 on 2 April 2017 between the accused ("OH") and an unknown male ("UM") was as follows. "OH - …Um, …. UM - (indistinct) OH - …my…, ……. They're gunna……the van, this van and …..been there……..They can take it if they want, they don't have nothing on me, at least if they would, If they had anything on me, they would've gone to my dad straight away and say I was there man. UM - One day, maybe find out where you were, straight out 100% coz bro, even if you…..cuz, they have to - - - OH - Get a warrant. UM - For you, but like they gotta find you and give it to you, you know what I mean. OH - Yeah. UM - Not anyone else , that's why they'll and find out where you are - - - OH - alright. UM- - - - ….They're just enquiries. OH - They just … (indistinct) … that's why. UM - Enquiries that - - - OH - Inshallah they need one or no yeah? UM - Inshallah man straight out, eidey man…straight out brother. OH - Walla. Ugly. UM - Pretty much." 1. Immediately following on from the above portion of the conversation (in relation to which there was no objection) the remaining exchange took place. The lines in italics were objected to ("the objectionable passage"): "[Phone tone heard] OH - Emack (pause). Eidey, looking out for my boy, Eidey helping out, that's, that's all it was." UM - (indistinct) OH - But I would've rolled around drinking in melbourne, but they gotta prove that - - UM - Mmmm. OH - - - -I'm, where I live, fucken…..everything…. UM - Yeah that's right. OH - But now, they thing cuz, my van. But, but still, I have to, what do you do? UM - Like I told you, if they have got something on you find out where you live. OH - Just ask me man, yeah? UM - Yeah. OH - Walla…maybe they went…If I was there at the time. UM - They probably do, you don't know. OH - Walla yeah? (Pause)." Submissions: accused 1. My Kelly, for the accused, submitted that the objectionable passage was not sufficiently linked to the murder to be able to be relied upon by the prosecution as an admission of the accused's participation in it, at least on the morning of 25 October 2016. 2. It was further submitted that even if some tangential link could be drawn, its probative value is outweighed by the risk it might be misused by the jury. He submitted that the sentence beginning with the words "But I would've rolled around drinking in Melbourne, but they gotta prove that" clearly indicates a change in topic from the accused's discussion of his van. He identified the danger of misuse as the potential for the succeeding material to be used as an admission when there was an insufficient evidentiary basis from the conversation to draw that conclusion. Consideration 1. The basis for the objection was as to relevance (ss 55/56) and, in the alternative, that there was a real risk that the jury wold misuse that portion of the conversation in its deliberations (s 137). 2. Turning first to the question of relevance. Sections 55 and 56 of the Evidence Act provide that: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 1. If the evidence is not relevant, that is the end of the matter. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at 653 [6]: "Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise." 1. In determining whether the evidence is relevant I am required to assess the capability of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue. When determining whether evidence is relevant, other questions of potential inadmissibility are ignored. The sole consideration at this stage is relevance. 2. I am satisfied that the material in LD 6 is relevant. The conversation which precedes the objectionable passage as well as the objectionable passage itself contains references to the accused's van, in which he is alleged to have carried out the relevant surveillance. A significant part of the Crown case concerns evidence about that van. The accused speaks in code both before and during the objectionable passage, which is consistent with the conversation being about his concerns that he was being investigated about his van. On this basis the objectionable passage is relevant. 3. The next question is whether the evidence ought to be excluded under s 137 of the Evidence Act, which provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. The application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. "Probative value" is defined in the Dictionary to the Evidence Act as "[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 2. Although "probative value" is defined in the Evidence Act, the term "unfair prejudice" is not. It been held that the danger of "unfair prejudice" within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999 ] NSWCCA 261 at [9 7]: "The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case ...". 3. I am satisfied that the probative value of the evidence is high. It is a conversation about the accused's van in the context of that van being the focus of the police investigation of the accused. 4. The question of any unfair prejudice turns on whether a jury might consider that the sentence about "rolling around in Melbourne" in the middle of the two pages of transcript of a conversation about the van was in fact part of a separate conversation. Although it is to be accepted that there is no suggestion that the accused was in Melbourne at the relevant time and the precise meaning of this reference is not immediately clear, I am not satisfied that the jury might be misled into finding that the reference would be pertaining to the same subject matter. 5. The relevant admission in the objectionable passage is when the accused states, "Emack (pause). Eidey, looking out for my boy, Eidey helping out, that's, that's all it was." This statement is consistent with the Crown case that the accused was not one of the shooters but was instead involved in either an accessorial role or as part of a joint criminal enterprise. That admission follows an exchange about the police speaking with the accused's father about the van and precedes a further reference to the van. 6. I was not satisfied that there was any risk that the jury would misuse the evidence. When the conversation is viewed in its entirety it can be seen as one free-flowing investigation about the van. Although the reference to Melbourne is somewhat cryptic it is in the middle of a conversation about the van as the extract above makes clear. Accordingly, there was no risk that the jury would misuse this evidence. 7. For these reasons, I was satisfied that there was no basis to exclude the relevant portion of the recording. LD 8 1. LD 8 was a recording of a conversation between the accused ("OH") and his wife ("AM") on 16 April 2017. Those portions of the conversation in Arabic are in brackets: "AM - ……WhatsApp. OH - Hey, we need to start leaving by eightish babe. I don't want you here after 8 o'clock. Yeah? I don't want you here after 8 o'clock anymore. We need to start leaving. Just in case they fucking do come. None of us are here. Let em keep not finding the phone. (ARABIC - They are still talking. When did you get it?) van. (ARABIC - who did you get it from?) van. Um (ARABIC - What colour was) van. Dumb question. Like let them (ARABIC - Why did you do like this). AM - Yeah obviously, so - - - OH - He answered aw I think aw (ARABIC - You are driving the van. Your son…I don't know, maybe one of the workers drive it. They don't know anything. They don't know anything) ….question…..van…..I'm looking at dad…..like what day he's talking about? I'm gunna say…I'll go um was it a week day? I'll go. Yeah a hundred percent I was there…probably around the area. Maybe it's my work car or something like that - - - AM - Mmmmm. OH - Say like that. …(whispering)… AM - Mmm. OH - (whispering) AM - Mmm. OH - You feeling me? AM - Yeah yeah yeah. OH - You know what I mean? AM - Yea yeah I know. OH - Yeah, I heard from somewhere….(whispering)….went for a walk. Five metres, five minutes from the car…Give or take five or take…we've studied it. AM - Mmm. OH - Studied the whole - - - AM - Mmm. OH - - - - inside out. AM - (Indistinct)" The basis of the objection 1. Mr Kelly submitted that this extract from LD 8 should be excluded under s 137 of the Evidence Act on the basis of the risk of unfair prejudice. He submitted that the probative value of the accused's statements was diminished because they accorded with what was said in the accused's eventual interview with police. Therefore, the jury might conclude that this statement was a "dry run" or rehearsal for what the accused would say in his police interview. It was submitted that undue emphasis would be placed on the fact that he was discussing the state of the investigation with his wife. Furthermore, it was submitted that none of the statements (at this stage of the trial) had been proved to be demonstrably false. He characterised the material as a "spontaneous" and "unguarded" conversation between the accused and his wife that could not be characterised as a "dress rehearsal" of his police interview. He also pointed out that the accused was not interviewed by police for some time afterwards. 2. In response, the Crown submitted that the evidence served two purposes in the prosecution case. The first was that the accused makes an admission in the conversation that he was there at the scene of the murder. Secondly, the Crown submitted that the material in the excerpt was a rehearsal for what the accused would say to the police. The Crown placed emphasis on the fact that the accused appears to have been speaking to his father about what he had told police and then what he would say to police. In the Crown's submission the accused lied in his ERISP and the material in this excerpt demonstrated that he was consciously doing so, rather than responding spontaneously or emotionally to the situation he found himself in. Consideration 1. It was not submitted that the evidence in LD 8 lacked relevance. The Crown case is that the accused lied in his ERISP about whether photos of a van where in fact photos of his van. The Crown proposes to rely on these alleged lies as a consciousness of guilt. A lies direction will be required to be given to the jury in relation to these alleged lies: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. One of the matters the jury would have to be satisfied of before it could rely upon the alleged lies as consciousness of guilt is that any alleged lie was deliberately untrue as opposed to the result of mistake or confusion. In the context of the proposed lies direction, in LD 8 the accused appears to be discussing with his wife what he will say to police. This is relevant to whether the alleged lies were the result of spontaneous panic or pre-planned. 2. I have had regard to the fact that the conversation in LD 8 took place only one day after the accused was spoken to by Detective Senior Constable Lucy Ede and several weeks after police had spoken to his father. The accused is whispering in the conversation, which further tends to suggest that he is rehearsing what he proposes to say to police. 3. As for the submission that the material would be used in a way logically disconnected with the trial, I am not satisfied that using the conversation to reason that the conversation was in fact a "dress rehearsal" for his police interview, amounts to "unfair prejudice" within the meaning of s 137. To do so is not to reason in a manner "logically unconnected with the purpose of its tender" or in a manner "logically unconnected with the issues in the case" (see authorities at [16] above). On the contrary, the conversation not only contains an admission as to the accused being at the scene, the Crown squarely relies upon it as constituting a dress rehearsal relevant to the question of lies. 4. The terms of s 137 require me to exclude evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the defendant. I am not satisfied that there is a danger of any unfair prejudice arising from the tender of this evidence. Orders 1. Accordingly, I make the following order: 1. The material contained in LD 6 and LD 8 is admissible. ********** Amendments 10 December 2019 - Trial concluded, decision unrestricted. 16 December 2019 - [6] italics added 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: 16 December 2019