Citation: R v Hawi & ors (No 29) [2011] NSWSC 1675
Court: Supreme Court of New South Wales
Date: 31 October 2011
Judge: R A Hulme J
Background
This decision arose in a large, multi-accused criminal trial concerning a riot at the departure hall of a Sydney airport terminal. One of the accused, Kisacanin, faced allegations that he had participated in the riot by wielding a bollard. The Crown relied on a combination of security camera footage and witness evidence to establish this.
During closing addresses, counsel for Kisacanin mounted a "could not be in two places at once" argument to counter the Crown's reliance on tourist footage showing a person with a bollard. That submission depended on an analysis of the time differences between various security cameras, originally conducted by the officer in charge of the matter, Inspector French. The analysis had been accepted without challenge until very late in the summing-up phase, when another counsel's independent overnight review revealed it was flawed.
Once the error was confirmed, the court faced the question of whether the jury had to be told that counsel for Kisacanin had made a closing submission built on an incorrect premise. Counsel for Kisacanin then applied for the jury to be discharged, arguing that correcting the record before the jury would unfairly damage his credibility.
Legal Issues
- Whether the jury's likely adverse view of counsel's credibility, arising from correction of a submission made on a false premise, constituted prejudice to the accused sufficient to warrant discharge of the jury.
- Whether a flawed evidentiary foundation for a defence submission, discovered late in the trial, gave rise to an unfair trial necessitating that remedy.
Decision
Hulme J refused the application. His Honour reasoned that the jury would need to be told of the error in Inspector French's time analysis regardless of the discharge application, because that correction had ramifications for the cases of several accused, not just Kisacanin. In those circumstances, the jury would understand that multiple counsel had unwittingly relied on an analysis that had been treated as correct until very late in the proceedings.
His Honour also noted that Inspector French had never claimed any technical expertise in the comparison exercise. In evidence, French had said openly that he was in no better position than counsel or the jury members themselves to perform it, and the Crown had expressly invited defence representatives to carry out their own verification as early as 5 August 2011.
Hulme J found it most unlikely, in these circumstances, that the jury would form an adverse view of the credibility of any counsel, let alone single out counsel for Kisacanin. The court was not persuaded that any prejudice to Kisacanin's case had been established, and certainly not to a degree justifying the discharge of the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that a jury discharge is not warranted merely because a defence submission is shown to have rested on an incorrect evidentiary premise, particularly where the error affected multiple parties and arose from material widely treated as reliable.
- Where flawed analysis underpins submissions by several counsel across a multi-accused trial, a jury is unlikely to single out any one counsel for adverse credibility findings when the error is corrected.
- The court placed weight on the fact that the original analyst (a police officer) had openly disclaimed any expertise in the comparison exercise and had invited counsel to verify his work independently, undermining any suggestion that reliance on the flawed analysis was unreasonable.
- Prejudice sufficient to discharge a jury requires more than the correction of a mistaken submission; the court assessed the likely actual impact on the jury's perception, not merely the theoretical possibility of reputational harm to counsel.
- In refusing the application, the court emphasised that counsel had had approximately three and a half weeks between becoming aware of the footage's relevance and delivering closing addresses, during which independent verification of the timing analysis could have been undertaken.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata for this decision.