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. The objectionable portions of the ERISP 1. The accused objects to three answers provided by him in his ERISP. 2. The first answer is to questions 274-5: "A --- as I can. I'm not, I'm not here to go around the bush. I, I want to just clear this thing off so I can, urn, I don't know how, what this process is gunna be, but whatever it takes, I'm gunna help you guys out because I'm not a criminal and whatever it takes, I'm here to get myself out of this 'cause I've, like, like I said, I'm, like, I'm full be honest with youse. I'm not, I can be, I can be annoying and not cooperate with youse, you know what I mean, but I'm choosing to cooperate because it's, that's what a gentlemen does, you know what I mean? Gets, gets stuff the right way done properly, you know what I mean? Q275 Well, we appreciate it. A So I hope youse appreciate that." 1. The second answer is to question 277: "Q277 Now--- A I wish, I wish you guys showed me this earlier. We would've not had to do this whole process 'cause I would've told youse exactly what I'm telling you guys now. I wish I knew that day and the thing exactly, and the map, so I can tell youse, I didn't even know where Stuart avenue was." 1. The third answer is to question 286: "A ---you guys, I, I have nothing to do with it. Like I said, I will explain everything to youse. Like, I'll help youse out in whatever way. I'm not, like, anything youse want, I'll help youse." The accused's submissions 1. It was submitted that the prosecution relies upon the "clear and unambiguous" lie that the van was not his. Thus, the jury's attention needs to be drawn to the passages where these specified lies are to be found. When the accused makes representations in the impugned passages about his genuineness and his desire to help out, the "inescapable impression is either that he's nervous or operating with a degree of bravado". It was submitted these passages do not bear on whether the accused lied about the van and the passages might be relied upon for the jury to form an adverse impression over and above whatever impression they form as a consequence of the "lie" in relation to the van. 2. Mr Kelly's primary submission was that the passages were not relevant. He submitted that they would distract from the central issue the jury has to grapple with, namely, whether the accused lied about his van. If the jury were to come to the conclusion that the accused deliberately lied about the van the impugned passages might be relied upon to form an additional adverse impression of him. He submitted that the jury should not be distracted from making a finding in relation to the primary lies that the prosecution had identified. 3. The secondary argument advanced on behalf of the accused was that these answers were likely to be misused or its value inflated or overvalued by the jury in circumstances where the identified lies will attract a "consciousness of guilt" direction. It was conceded that any prejudice may be capable of being cured by direction but the "simpler proposal" was to exclude the evidence. Crown submissions 1. Mr Crown submitted that the prosecution relied upon the impugned answers to indicate the accused's state of mind when he began engaging in the ERISP. That is, the Crown submitted that the accused went into the interview with a state of mind to deceive police, as opposed to making the comments spontaneously or out of nervousness. To support this, the Crown relied on earlier recorded conversations between the accused and his wife in which they are said to rehearse what he will say to police. 2. The Crown further submitted that if the jury was not satisfied that the accused told lies about his van then the impugned passages could be accepted as genuine. However, the Crown case was that the accused was not being genuine with police in his ERISP, thus the impugned passages would be of assistance to the jury when considering the interview as a whole. Consideration 1. I am satisfied that the impugned answers are relevant: s 55 and 56 of the Evidence Act 1995 (NSW). If accepted, they could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely, whether the accused lied in his ERISP and, if he did, whether it was a deliberate lie or one told out of panic. 2. The Crown relied upon the lies as consciousness of guilt; it is contended that the accused denied that the van was his because he knew the truth would implicate him in the murder of Mr Assaad. Accordingly, it will be necessary for the jury to be given a direction consistent with what the High Court held in Edwards v The Queen (1993) 178 CLR 19; HCA 63. The jury will be directed, inter alia, that before they could rely upon the alleged lies as consciousness of guilt, they would need to be satisfied that they are in fact deliberate lies and not told for some other reasons such as panic. They will be directed that people do not act rationally and they can lie for many reasons besides guilt. On this basis, I am satisfied that the answers are relevant because they provide context to the alleged lies. 3. The next question is whether the evidence ought to be excluded under s 137 of the Evidence Act which provides: "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." The term "unfair prejudice" is not defined in the Dictionary. 2. The term "unfair prejudice" within the meaning of s 137 of the Evidence Act means more than the danger that the evidence will be prejudicial. All evidence which makes the Crown case stronger is prejudicial to an accused person. The danger at which s 137 is directed is the danger of prejudice that is unfair in the context of an accused person's right to a fair trial. McHugh J described this danger in Papakosmas v The Queen (1999) 196 CLR 297; HCA 37 at [91] as the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender. Similarly, Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97] that "[t]he 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. The unfair prejudice arising from the three impugned answers was said to be the risk that the jury would be distracted from considering whether the alleged lies relied upon by the Crown as consciousness of guilt were in fact deliberate lies and/or that the value of these answers would be inflated or overvalued. It is pertinent to note that the three impugned answers are not on their face obvious lies. They are comments made by the accused to the effect that he is trying to help police by answering questions. When they are viewed in the context of the earlier conversations with his wife in which the Crown suggests that the two of them are rehearsing what he might say to police, it would be open to the jury to consider that the accused is being somewhat disingenuous in these answers. To so reason would not be to do so in a way logically unconnected with the case: the jury will be required to assess what the accused says in his interview and, in particular, when he denies that the van is his. 4. Nor am I satisfied that that the jury would "overvalue" the answers. What weight the jury puts on various parts of the evidence is a matter for them. In any event the three answers are all, in effect, the same statement from the accused: that he is innocent and wants to help them. There is some support from this in the evidence that despite being cautioned, he initially agreed to answer the questions posed by police and the jury will be instructed that he did not have to answer questions but chose to do so. If the jury is not satisfied that the accused's denials that the van was his are deliberate lies told out of consciousness of guilt they will disregard that evidence and these answers remain neutral. If the jury is satisfied that the alleged lies are in fact deliberate lies told out of consciousness of guilt then these three answers do not take the matter further. 5. It is to be accepted that the probative value of the answers is not particularly high but in circumstances where I am not satisfied that there is any danger of unfair prejudice, I am not satisfied that its probative value is outweighed by the danger of unfair prejudice to the accused. 6. For these reasons I ruled that the answers were admissible. 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