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Supreme Court 11 November 2004

R v Hamoui [No 2]

[2004] NSWSC 1053

Homicide
CRIMINAL PRACTICE & PROCEDURE MURDER TRIAL APPLICATION FOR DETENTION WARRANT WHETHER CONTAINED FALSE STATEMENTS WHETHER IMPROPRIETY OR ILLEGALITY.

Citation: R v Hamoui [No 2] [2004] NSWSC 1053
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 11 November 2004
Judge(s): Kirby J

Background

The accused stood trial for murder following the discovery of a woman's body in June 2001. Police had identified him as a suspect, arrested him, and brought him to Fairfield Police Station, where they sought a Detention Warrant from an after-hours Magistrate to conduct a further recorded interview under Part 10A of the Crimes Act 1900.

At the conclusion of that interview, the accused was asked to consent to a forensic procedure (a buccal swab for DNA purposes). He consented, signed the required form, and the swab was taken under the Forensic Procedure Act 2000.

Defence counsel applied to exclude the evidence obtained from that forensic procedure, arguing that the affidavit filed in support of the Detention Warrant contained three materially false statements. The application was brought under s138 of the Evidence Act 1995, which gives courts a discretion to exclude improperly or unlawfully obtained evidence.

  • Whether the affidavit in support of the Detention Warrant contained false or misleading statements in three identified respects.
  • Whether any such falsity amounted to impropriety or a breach of an Australian law, so as to engage the exclusionary discretion under s138(1) of the Evidence Act 1995.
  • If the discretion was engaged, whether the evidence should nonetheless be admitted.

Decision

First alleged falsity: the prior charges. The affidavit described the accused as having previously abducted the deceased at gunpoint and stated that the matter was "before the Courts." In fact, the abduction and malicious wounding charges had been withdrawn after the complainant amended her statement. Only firearms and prohibited weapons charges remained. Kirby J accepted that this paragraph was misleading, but found no basis to conclude that either officer involved had knowingly provided false information. The circumstances surrounding the original charges were complex, and the remaining firearms offences were themselves serious. No impropriety or breach of law was established, so the s138 discretion was not engaged on this ground.

Second alleged falsity: prior consent to the forensic procedure. The affidavit stated that the accused had already agreed to the forensic procedure before the interview took place. In reality, consent was not obtained until the interview had concluded. Kirby J accepted, however, that either the accused had informally indicated consent earlier (and the officer had since forgotten) or, more likely, a miscommunication had occurred in the course of preparing the warrant application at speed. There was no apparent motive to falsely assert prior consent, and no knowing provision of false information was established. Accordingly, no impropriety or illegality was found, and the discretion under s138 was again not engaged.

Third alleged falsity: the support person. The application named the accused's sister as the support person. When it became clear she could not remain past midnight, the accused nominated a cousin, who attended and was present throughout the interview. Kirby J dismissed this ground at once: the application was accurate when submitted, and there was nothing improper or unlawful in not informing the Magistrate of the changed arrangement.

Having found no impropriety or breach of law on any of the three grounds, the court did not reach the weighing exercise that s138 requires where illegality or impropriety is established. The evidence obtained from the forensic procedure was admitted.

Orders Made

  • The evidence obtained in consequence of the forensic procedure (the buccal swab) was admitted into evidence.

Key Takeaways

  • Section 138 of the Evidence Act 1995 confers a discretion to exclude improperly or unlawfully obtained evidence, but that discretion is only engaged where impropriety or a breach of law is first established. If neither is made out, the balancing exercise under s138 does not arise.
  • A misleading statement in a Detention Warrant affidavit will not necessarily constitute impropriety or breach of law. Where the court accepts that no officer knowingly provided false information, the threshold for engaging s138 is not met.
  • Kirby J drew a distinction between an inaccurate affidavit and a deliberately false one. The presence of a misleading paragraph attributed to miscommunication under time pressure, rather than to dishonesty, did not suffice to enliven the exclusionary discretion.
  • Under s356K(1) of the Crimes Act 1900, it is an offence to provide an authorised justice with information known to be false or misleading in a material particular. The court's analysis turned on whether that mental element was present, not merely whether information proved to be inaccurate.
  • No obligation arose to inform the Magistrate of a change in support person arrangements after the warrant application had been submitted, where the accused himself had nominated the replacement and that person was present throughout the interview.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW), Part 10A; s 356K(1)
- Forensic Procedure Act 2000 (NSW)

Cases:
- R v Hamoui [No 1] (unreported, 11 November 2004, Supreme Court of NSW)