Citation: R v Hawi & ors (No 6) [2011] NSWSC 1652
Court: Supreme Court of New South Wales
Date: 19 May 2011
Judge: R A Hulme J
Background
The trial arose from two violent incidents at Sydney's Qantas domestic terminal on 22 March 2009, in which members and associates of the Comanchero and Hells Angels motorcycle clubs were alleged to have engaged in an affray and a riot. The riot culminated in the murder of Anthony Zervas. Thirteen accused faced charges arising from those events.
The prosecution case relied heavily on eyewitness testimony from over 140 members of the public and airport staff, none of whom knew any of the accused. Witness descriptions of the participants were central to the Crown's case on identification.
All parties, including counsel for each accused, initially agreed that non-publication orders should be made to prevent witnesses yet to testify from being contaminated by the evidence of those who had already given evidence. However, the court declined to simply adopt the proposed orders without scrutiny.
Legal Issues
- Whether non-publication orders should be made suppressing photographs and other depictions of the accused
- Whether non-publication orders should be made suppressing witness descriptions of the accused given in evidence
- Whether non-publication orders should be made suppressing descriptions of participants in the airport events given in evidence
- Whether the names of two co-operating prosecution witnesses and their families should be subject to a non-publication order
Decision
Hulme J refused to make the broader non-publication orders covering witness descriptions of the accused and participant descriptions in evidence (proposed orders 2 and 3). Although the defence maintained those orders were necessary to prevent witness contamination, His Honour was not persuaded that sufficient grounds existed. He emphasised that any departure from a witness's prior statement or committal evidence could be explored in cross-examination, and that evidence of media influence on a witness would go to the reliability of that evidence.
His Honour also invoked the principle of open justice. Preventing publication of the bulk of the eyewitness evidence would substantially frustrate the public's ability to understand what occurred during two seriously disturbing incidents in a busy public terminal. Applying the principle stated by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of NSW, non-publication orders are exceptional measures and must not be made lightly.
Two narrower orders were made. The first suppressed publication of photographic or other visual depictions of the accused, recognising that images in media reports could influence witnesses who had not yet given evidence on identification and appearance. The second suppressed the names of two prosecution witnesses (identified in the judgment only as SP and AL) and their families, given their status as former Comanchero members who had pleaded guilty and agreed to give evidence for the Crown, and the genuine safety concerns that arose from that position.
His Honour also indicated that the judgment itself would be provided to the media through the Court's Public Information Officer, so that media outlets were aware of the orders and of the need for careful and responsible reporting throughout the trial.
Orders Made
- No publication (until further order) of evidence comprising photographs, images, caricatures or other depictions of the accused
- No publication (until further order) of the names of the witnesses known as SP and AL, or of members of their families
Key Takeaways
- Non-publication orders in criminal trials are exceptional and require sufficient justification; the principle of open justice operates as a significant counterweight even where all parties consent to suppression.
- Hulme J declined to suppress witness descriptions of the accused and participant descriptions in evidence, finding that the risk of witness contamination was adequately addressed by prior statements, committal evidence, and the ability to explore any inconsistencies at trial.
- Where witnesses have made prior statements and many have already given committal evidence, the existence of that record is a relevant factor in assessing whether a non-publication order is necessary to protect the integrity of testimony.
- A non-publication order covering images and depictions of the accused was granted, reflecting the court's recognition that visual identification evidence is particularly vulnerable to media influence before a witness testifies.
- Safety concerns for co-operating prosecution witnesses who have pleaded guilty and agreed to give Crown evidence can constitute sufficient grounds for suppressing those witnesses' identities and the identities of their families.
Legislation and Cases Referenced
Cases:
- R v Hawi & Ors (No 2) [not separately reported in this judgment]
- John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344
- Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (cited within Fairfax)
Legislation: No specific legislation was cited in the judgment text.