Citation: R v Hawi & ors (No 10) [2011] NSWSC 1656
Court: Supreme Court of New South Wales
Date: 28 June 2011
Judge: R A Hulme J
Background
The accused in this matter faced charges arising from a large-scale incident at the Qantas Domestic Terminal at Sydney Airport on 22 March 2009, including allegations of affray and riot. The Crown sought to call a civilian eyewitness, Mr Moore, who had provided a statement to Australian Federal Police on the day of the incident recording his observations of fighting near Gate 5. Two accused, whose conduct at Gate 5 was directly in issue, objected to the witness being called.
The statement had not been disclosed to prosecutors until 3 June 2011, well after the trial had commenced on 24 May 2011. Prosecutors disclosed it to defence representatives on 6 June 2011. The delay arose from a combination of administrative errors by investigators: the notebook entry containing the statement had been miscategorised in the police database as an "other text document" rather than a "statement", and the relevant witness name had been redacted without substitution in the brief of evidence served on all parties. The statement came to light only because the Crown's instructing solicitor happened to review the relevant police officer's statement while responding to an unrelated defence request.
Both the Crown and the objecting accused accepted that the late disclosure was the result of inadvertence rather than any deliberate concealment.
Legal Issues
- Whether the sanction of exclusion under s 146(1) of the Criminal Procedure Act 1986 applied to the late disclosure of the witness statement.
- Whether the police investigators responsible for the non-disclosure fell within the concept of "prosecutor" for the purposes of the pre-trial disclosure regime in Chapter 3, Part 3, Division 3 of the Act.
- Whether admitting the evidence would cause actual prejudice or embarrassment to the accused, having regard to how defence counsel had opened their cases to the jury.
Decision
His Honour noted that s 146(1) provides a discretionary power to exclude evidence where a party fails to disclose it in accordance with pre-trial disclosure requirements. The key preliminary question was whether the police investigators' failure to include the statement in the brief fell within the disclosure obligations imposed on the "prosecutor" under the case management provisions. His Honour considered this question but, given the conclusion reached on prejudice, found it unnecessary to resolve it definitively.
On the question of prejudice, His Honour examined carefully what defence counsel for the two accused had said in their opening addresses. Mr Stratton SC, for the accused Menzies, had told the jury that no eyewitness would give a description that "closely matched" Menzies's appearance on the day. His Honour found that the descriptions in Mr Moore's statement were broad and general, not a close or definitive match to any accused. The Crown itself did not contend the descriptions closely matched Menzies, putting it no higher than that they "could" do so.
His Honour also noted that one of the two individuals described in Mr Moore's statement was, on the evidence, more likely to be the victim Mr Wainohu than either of the accused objecting. Taken in context, the jury had heard extensive evidence and would likely treat the descriptions as general impressions rather than precise identification of a particular accused.
The conclusion was that no real prejudice or embarrassment had been caused to the accused by the late disclosure in light of how their counsel had opened to the jury. The objection was overruled and the evidence was admitted.
Orders Made
No formal exclusion order was made. The objection to the admission of Mr Moore's evidence was overruled and the evidence was held to be admissible.
Key Takeaways
- The discretionary exclusion power under s 146(1) of the Criminal Procedure Act 1986 requires a court to assess actual prejudice to the accused, not merely the fact of non-compliance with pre-trial disclosure obligations.
- Where late disclosure results from inadvertent administrative error rather than bad faith, that context is relevant to how the discretion is exercised, though His Honour did not suggest bad faith is a prerequisite for exclusion.
- A description in a witness statement that the Crown itself characterises only as something that "could" match an accused will not necessarily create prejudice arising from how defence counsel opened their case to the jury.
- The question of whether investigating police officers fall within the concept of "prosecutor" for the purposes of the Chapter 3 case management provisions was raised but left unresolved on the facts of this case.
- Under s 146(1), the court's power to exclude is framed as discretionary ("may refuse to admit"), meaning exclusion is not automatic upon proof of non-disclosure.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 143, 144, 146
- Criminal Procedure Amendment (Case Management) Act 2009 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
Cases cited: No cases were cited in the judgment.