R v Hawat (No 4) [2019] NSWSC 1726

Supreme Court New South Wales

Medium Neutral Citation: R v Hawat (No 4) [2019] NSWSC 1726 Hearing dates: 27 November 2019 Date of orders: 29 November 2019 Decision date: 09 December 2019 Jurisdiction: Common Law Before: N Adams J Decision: Question and answers 274-5, 277 and 286 of the accused's ERISP on 29 June 2017 are admissible. Catchwords: CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – Electronically Recorded Interview of a Suspected Person – answers to questions – relevance – probative value – unfairness to the accused 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 19; HCA 63 Papakosmas v The Queen (1999) 196 CLR 297; HCA 37 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 1. On the sixth day of this trial I was asked to rule on the admissibility of a number of questions and answers in the accused's Electronically Recorded Interview of a Suspected Person ("ERISP"), on 29 June 2017. 2. To provide context to the application, the accused is charged with the murder of Hamad Assaad on the basis that he was either part of a joint criminal enterprise with others to murder the deceased or he was an accessory before the fact to the murder. The Crown case is that he conducted surveillance of the deceased's home before he was shot. 3. On 29 June 2017, the accused was arrested and interviewed. A search warrant was executed at his home at approximately 6am and by 7.30am he was at Bankstown Police Station. He participated in an ERISP until such time as his solicitor telephoned the police station and spoke to him. When the ERISP resumed the accused answered every question by stating "no comment" and the interview was terminated. 4. The Crown relies upon certain answers provided by the accused in his ERISP as lies evidencing consciousness of guilt. The lies all pertain to the accused's van which is depicted in a CCTV footage driving by the home of the deceased on a number of occasions prior to and on the day of the shooting. 5. The lies are contained in answers to questions 344-346, 356 and 412 of the transcript of the accused's ERISP and can be briefly summarised as follows: 1. "I never had that wheel hub missing". 2. "I never had my wheels missing." 3. "I don't even have two pipes on my van." 4. "I don't even have a back step bar." 5. "I don't even have a front step bar." 6. "I don't have two pipes on my roof." 7. "That's not my van." 1. It can be seen that the alleged lies are all, in effect, that the accused denied that the photos were of his van. The Crown relied upon other evidence to establish that the van was his.