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2
Supreme Court 29 April 2011

R v Hawi & ors (No 2)

[2011] NSWSC 1648

HomicidePublic order & justice offences
CRIMINAL LAW PROCEDURE WITNESSES OPEN JUSTICE AND FAIR TRIAL PRINCIPLES "RIGHT" TO CONFRONT ACCUSERS WITNESSES IN FEAR

Citation: R v Hawi & ors (No 2) [2011] NSWSC 1648
Court: Supreme Court of New South Wales
Date: 29 April 2011
Judge(s): Hulme J

Background

The case arose from a violent brawl at the Qantas domestic terminal at Sydney Airport on 22 March 2009, involving members of the Comanchero and Hells Angels motorcycle clubs. One man died at the scene. Nine accused faced charges including murder, riot, and affray, with the trial scheduled to commence on 9 May 2011.

The Crown proposed calling 149 civilian "innocent bystander" witnesses, including passengers on the flight from Melbourne and people present in the terminal. The Commissioner of Police applied for orders requiring all of these witnesses to give evidence under pseudonyms, with their real identities concealed from the accused and from the court generally.

Counsel for each of the accused opposed the application, arguing there was no demonstrated need for the orders and that anonymity would irreparably prejudice the accused in the minds of the jury and inhibit effective cross-examination.

  • Whether the court had power under s 130 of the Evidence Act 1995 to make pseudonym orders protecting the identities of civilian witnesses from disclosure to the accused and the public
  • Whether the public interest in preserving the anonymity of the witnesses outweighed the public interest in the accused receiving a fair trial consistent with open justice principles
  • Whether the evidence before the court was sufficient to justify a blanket pseudonym order covering all 149 witnesses, including those who had expressed no personal concern about giving evidence

Decision

Hulme J refused the application. His Honour found that the legal basis for the application was s 130 of the Evidence Act 1995, which permits a court to direct that information relating to "matters of state" not be adduced where the public interest in secrecy outweighs the public interest in admission. The Commissioner argued that disclosing witness identities would prejudice the prosecution and future investigations, and that witnesses and their families faced genuine risk of threats and reprisals from the accused and their associates.

His Honour accepted that open justice and fair trial principles are not absolute, and that in appropriate circumstances a witness's identity may be protected. However, he found the evidence in support of the application to be insufficient. In particular, the confidential affidavits relied upon by the Commissioner contained only brief and general accounts of concern expressed by individual witnesses, with considerable variation in what had actually been said. Crucially, many of the 149 witnesses had expressed no concern at all.

The court was not persuaded that a blanket order covering every civilian witness was justified. His Honour held that if any pseudonym order were to be considered, it would need to be assessed on a witness-by-witness basis, supported by a far more detailed explanation of the need for protection in relation to each particular witness.

Hulme J concluded that the public interest in the accused receiving a fair trial in accordance with open justice principles was not outweighed by the public interest in preserving the anonymity of all innocent bystander witnesses. The evidence in support of the application was insufficient to tip the balance.

Orders Made

The application was refused.

Key Takeaways

  • A blanket pseudonym order covering all civilian witnesses in a high-profile criminal trial cannot be justified without sufficient evidence addressing the individual circumstances of each witness; a generalised assertion of risk to a class of witnesses is not enough.
  • Under s 130 of the Evidence Act 1995, the public interest in preserving secrecy must genuinely outweigh the public interest in the accused receiving a fair trial conducted in accordance with open justice principles before a court will restrict witness identity disclosure.
  • Where any pseudonym order is to be considered, the Supreme Court held it must be assessed on a witness-by-witness basis, with detailed evidence supporting the need for protection in each individual case.
  • The fact that witnesses gave evidence under pseudonyms at committal did not, of itself, justify extending that protection to the trial, particularly where some witnesses had never expressed any personal concern about identification.
  • A consistent theme across witness accounts expressing generalised fear, without more, was found to be insufficient to satisfy the threshold required for anonymity orders.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 130
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Jury Act 1977 (NSW)

Cases
- Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
- BUSB v R [2011] NSWCCA 39
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Dietrich v The Queen (1992) 177 CLR 292
- Dodds v The Queen (2009) 194 A Crim R 408
- Eastman v The Queen (1997) 76 FCR 9
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84
- John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
- Maryland v Craig 497 US 836
- McKinney v The Queen (1991) 171 CLR 468
- R v Davis [2008] AC 1128 (UK House of Lords)
- R v Glennon (1992) 173 CLR 592
- R v Hughes [1986] 2 NZLR 129
- R v Lowe (1997) 98 A Crim R 300
- R v Ngo (2003) 57 NSWLR 55
- R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
- R v Wilkie; R v Burroughs; R v Mainprize (2005) 193 FLR 291