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Local Court 9 July 2010

Commissioner of Police V Hawi and Ors

[2010] NSWLC 30

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW COMMITTAL PROCEEDINGS PUBLIC INTEREST IMMUNITY APPLICATION FOR NON DISCLOSURE NON

Citation: Commissioner of Police v Hawi and Ors [2010] NSWLC 30
Court: Local Court of New South Wales
Date: 7 September 2010 (orders made 6–8 July 2010; reasons reserved)
Judge(s): Magistrate John Favretto

Background

These were committal proceedings arising from a violent clash between members and associates of two outlaw motorcycle gangs, the Comancheros and the Hells Angels, at Sydney Airport's Domestic Terminal 3 on 22 March 2009. The incident resulted in the death of one person and led to charges against thirteen accused, including murder, riot, and affray.

The Commissioner of Police applied for orders protecting the identities of a large number of civilian witnesses. The application was brought under Part 4 of the Local Court Act 2007, with public interest immunity claimed under s 130 of the Evidence Act 1995 and at common law.

The Commissioner relied on both open and confidential affidavits to support the application. The confidential affidavits were available only to the court and the Crown, consistent with established procedure for public interest immunity claims. Several of the accused actively opposed the application; three did not seek to be heard.

  • Whether the real identities of civilian witnesses should be withheld from evidence and from disclosure in the proceedings on public interest immunity grounds
  • Whether pseudonym orders and non-publication orders could be made to protect witness identity in open committal proceedings
  • Whether withholding witness identities would deny the accused a fair trial, including the ability to test witness credibility
  • Whether the procedural use of confidential affidavits, accessible only to the court and Crown, was permissible in this context
  • How to balance open justice against the public interest in protecting witnesses and ensuring the prosecution of serious charges could proceed

Decision

The Magistrate granted the Commissioner's application in full. The court accepted that the grounds set out in the confidential affidavits provided a substantial body of evidence justifying protection of the witnesses' identities. In assessing the application, the court applied the s 130(5) Evidence Act framework, weighing the public interest in non-disclosure against any prejudice to the accused.

On the fair trial question, the Magistrate found that withholding identities would not cause the accused material unfairness. The DPP agreed to provide edited copies of each witness's criminal record, which addressed the accused's concern about being unable to test credibility. The court also noted it retained power to vary or set aside the orders if a substantial or materially relevant unfairness arose concerning any particular witness.

The accused argued that the application was a deliberate tactic to suppress what witnesses had actually said. The court rejected this, finding upon review of the confidential affidavits that the open affidavits accurately reflected, in general terms, what witnesses had said in their own words. That procedure was consistent with how superior courts had handled similar applications.

On the open justice point, the Magistrate observed that the witnesses would still be seen in court, whether in person or by audio-visual link. Only their identities would be withheld. The court concluded that any informed member of the public, understanding why the orders had been made, would recognise the interests of justice were served by granting them. The balance clearly favoured the orders sought, particularly given the seriousness of the charges and the delay before any trial.

Orders Made

  • The real names of designated civilian witnesses (identified by number) not to be adduced in evidence or otherwise disclosed during proceedings
  • All protected witnesses to be addressed and referred to only by pseudonym in court
  • No publication of any matter likely to lead to the identification of the protected witnesses
  • No photographs, drawings, or other likenesses of the witnesses to be taken or made within the court or its precincts, except for the purpose of giving evidence by audio-visual link

Key Takeaways

  • Public interest immunity applications in committal proceedings may be supported by confidential affidavits accessible only to the court and Crown, excluding both the DPP and the accused, provided the open affidavits reflect the general substance of what witnesses said.
  • Pseudonym and non-publication orders protecting civilian witness identities are available in Local Court committal proceedings and can be granted where the public interest in protection outweighs any prejudice to the accused's fair trial rights.
  • Withholding a witness's identity does not automatically deny an accused a fair trial; where edited criminal records are made available and the court retains power to vary orders if unfairness arises, the balance may favour non-disclosure.
  • Significant weight attaches to evidence from a senior officer such as the Commissioner of Police in support of a public interest immunity claim, even where the precise grounds are contained in confidential affidavits not accessible to the defence.
  • Prior inadvertent disclosure of some witness identities (through imperfect editing by police) does not defeat the utility of making protective orders for those witnesses whose identities remain undisclosed.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 56, 93
- Evidence Act 1995 (NSW), s 130
- Local Court Rules 2009, r 3.7
- Local Court Act 2007 (NSW), Part 4

Cases
- Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
- Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
- Eastman v R (1997) 76 FCR 9
- John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
- John Fairfax Publications Pty Ltd v Ryde Local Court of NSW (2005) 62 NSWLR 512
- National Crime Authority v Gould (1989) 90 ALR 489
- R v Davis [2008] UKHL 36
- R v Meissner (1994) 76 A Crim R 81
- R v Ngo (2003) 57 NSWLR 55
- R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
- R v White Cotterell (NSWSC, unreported, 29 October 1992)
- R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794
- State of New South Wales v Ryan (1998) 101 LGERA 246
- Witness v Marsden (2000) 49 NSWLR 429
- Yooyen, Tait and Poompiriyapinte v R (1991) 57 A Crim R 226
- Young v Quin (1985) 59 ALR 225