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Supreme Court 30 May 2011

R v Hawi & ors (No 9)

[2011] NSWSC 1655

Public order & justice offences
CRIMINAL LAW PROCEDURE WITNESSES WITNESSES

Citation: R v Hawi & ors (No 9) [2011] NSWSC 1655
Court: Supreme Court of New South Wales
Date: 30 May 2011
Judge: R A Hulme J

Background

This decision arose in the course of a major criminal trial involving multiple accused. The Commissioner of Police made a further application seeking pseudonym orders for civilian eye-witnesses, meaning that those witnesses would give evidence under false names, with their real identities kept from the court and the public.

The application was a follow-up to an earlier, broader application that had been refused. In that earlier decision (R v Hawi & ors (No 2)), the Commissioner had sought pseudonym protection for all of approximately 149 civilian eye-witnesses. Hulme J refused that application, finding the case had not been made out on a witness-by-witness basis and that the evidence was too general to justify such a sweeping departure from open justice principles.

Following that refusal, police contacted each civilian eye-witness individually, recording any fears or concerns expressed about giving evidence and revealing their identities. The current application concerned 20 of those witnesses, with defence counsel for the accused opposing the orders.

  • Whether pseudonym orders should be granted for 20 specific civilian eye-witnesses, assessed on an individual basis rather than collectively
  • Whether the fears and concerns expressed by those witnesses were genuinely and reasonably held
  • How to balance the public interest in open justice and the accused's right to a fair trial against the public interest in witness safety and protection
  • Whether the jury should receive a direction explaining why some witnesses were giving evidence under pseudonyms

Decision

Hulme J granted the application in respect of five of the 20 witnesses and refused it in respect of the remaining fifteen. The court was satisfied that the fears and concerns expressed by each of the 20 witnesses contacted by police were genuinely and reasonably held. However, the court remained of the view that, for many of those witnesses, further discussion with police might have alleviated their concerns, and this weighed against granting orders in those cases.

For five particular witnesses (identified by the numbers 98, 99, 132, 245 and 247), the court found there were additional personal circumstances that made them particularly vulnerable. The detail of those circumstances was contained in confidential material provided by Deputy Commissioner Kaldas and was not disclosed in the published judgment. That additional element was sufficient to tip the balance in favour of granting the orders for those five witnesses.

The court also addressed the question of directing the jury. Hulme J indicated that a direction was appropriate to explain to the jury that certain witnesses were giving evidence under pseudonyms, and that this direction was best delivered in opening remarks to avoid giving the matter undue prominence. The proposed direction was amended with input from senior counsel and was acceptable to most parties.

The court maintained its earlier approach that pseudonym orders require individual justification. The concerns previously identified about the unprecedented scope of any application covering all civilian witnesses remained relevant in evaluating each individual case.

Orders Made

  • No publication of any evidence, submissions, references in court, or information derived from the application
  • The true names of witnesses numbered 98, 99, 132, 245 and 247 are not to be adduced in evidence or otherwise disclosed in the proceedings
  • Those five witnesses are to give evidence under pseudonyms
  • No publication or other disclosure of any matter likely to lead to the identification of those five witnesses

Key Takeaways

  • Pseudonym orders for civilian witnesses require individual justification based on the specific circumstances of each witness; a general application covering all witnesses in a large trial will not readily succeed.
  • The Supreme Court confirmed that the balance between open justice and witness protection must be assessed witness by witness, with the significance of each witness's evidence and the specific nature of any fears or concerns forming part of that assessment.
  • Genuinely and reasonably held fears, without more, were insufficient to justify pseudonym orders where further police engagement might have resolved those concerns.
  • Where a witness possesses particular personal vulnerabilities that are established by confidential evidence, those circumstances can provide the additional element needed to warrant a pseudonym order.
  • A jury direction explaining the use of pseudonyms is an available and appropriate tool, with timing (such as delivery during opening remarks) a relevant consideration to avoid lending unnecessary prominence to the issue.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), including s 38 and s 130

Cases
- R v Hawi & ors (No 2) [2011] NSWSC (earlier decision in the same proceedings)
- BUSB v R [2011] NSWCCA 39
- R v Davis [2008] UKHL 36; [2008] AC 1128
- R v Murphy [1990] NI 306