Citation: R v Hawi & ors (No 11) [2011] NSWSC 1657
Court: Supreme Court of New South Wales
Date: 29 June 2011
Judge(s): Hulme J
Background
The proceedings arose from events at the Qantas domestic terminal at Sydney Airport on 22 March 2009, which the Crown alleged constituted a riot and the murder of Anthony Zervas. The accused Mahmoud Hawi was one of several persons charged in connection with those events.
A civilian witness, referred to in the judgment as Ms Brown, had provided a detailed statement shortly after the incident describing a man she saw wielding a bollard. Her original description included specific details about height (approximately 6'5"), clothing (a yellow t-shirt and dark track pants), and distinctive tattoos on the arms.
More than a year after the incident, and only on the morning she was due to give evidence, Ms Brown disclosed to Crown prosecutors that she believed the man wielding the bollard was the accused Hawi. She said she had recognised his face from a television news broadcast aired some weeks after the incident. The Crown sought to lead this identification evidence; defence counsel objected.
Legal Issues
- Whether Ms Brown's identification of the accused Hawi, derived from a television broadcast rather than any contemporaneous observation, carried sufficient probative value to be admitted
- Whether any probative value was outweighed by the danger of unfair prejudice, requiring mandatory exclusion under s 137 of the Evidence Act 1995
- Whether the court was permitted, in assessing probative value under s 137, to take into account the reliability of the identification or the witness's credibility
Decision
The s 137 framework: Section 137 of the Evidence Act 1995 requires a court to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The exclusion is mandatory if that threshold is met; no discretion remains. Hulme J also noted the established principle, confirmed in R v Shamouil and R v Keenan Mundine, that in assessing probative value a trial judge must not evaluate the witness's credibility or the reliability of the evidence. Probative value is assessed on the assumption the evidence is accepted, not by predicting the weight a jury would give it.
Probative value: Hulme J found the identification evidence carried minimal probative value. The physical description Ms Brown gave at the time of the incident and at the committal hearing was strikingly inconsistent with the accused Hawi's known appearance: Hawi was wearing white clothing, not yellow, and is approximately 19 centimetres shorter than the 6'5" man she described. While the Crown sought to argue that her description might actually correspond to a second bollard-wielder, Hulme J found that reasoning untenable given the witness had described only one such man. His Honour was careful to distinguish this reasoning from impermissible credibility assessment, framing it instead as a logical analysis of what the evidence could prove if accepted.
Danger of unfair prejudice: Hulme J identified a real danger that the jury would misuse the evidence. If the jury accepted Ms Brown's identification of Hawi as correct, it would be forced to disregard the significant inconsistencies in her own description of the bollard-wielder. Alternatively, if asked to treat the identified person and the described person as two separate individuals, the jury would be giving the evidence a weight it simply did not deserve. That potential misuse constituted unfair prejudice outweighing the evidence's minimal probative value. His Honour did not accept the broader prejudice arguments advanced by defence counsel concerning references to bikie gangs and media coverage, finding that cross-examination could address those matters without the prejudice being unavoidable.
Orders Made
- The identification evidence was inadmissible.
Key Takeaways
- Under s 137 of the Evidence Act 1995, exclusion of prosecution evidence is mandatory where its probative value is outweighed by the danger of unfair prejudice; no judicial discretion survives that finding.
- Consistent with R v Shamouil and R v Keenan Mundine, the Supreme Court assessed probative value by asking what contribution the evidence could make if accepted, not by evaluating the witness's credibility or the reliability of the identification process.
- A post-incident identification made after viewing a television broadcast, where the identifying witness's own prior description is materially inconsistent with the accused's known appearance, may carry minimal probative value as a matter of logical analysis rather than credibility assessment.
- Where admitting identification evidence would require the jury to either ignore glaring inconsistencies or give the evidence an unwarranted secondary purpose, that creates a danger of unfair prejudice sufficient to enliven the mandatory exclusion obligation.
- The court drew a clear distinction between impermissibly pre-empting jury credibility assessments and permissibly identifying, through logical analysis, that evidence carries little capacity to advance the Crown's case if properly used.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Dao v R [2011] NSWCCA 63
- R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228