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Supreme Court 19 November 2019

R v Hawat (No 1)

[2019] NSWSC 1583

Homicide
CRIME EVIDENCE MURDER JOINT CRIMINAL ENTERPRISE ACCESSORY BEFORE THE FACT PUBLIC INTEREST IMMUNITY

Citation: R v Hawat (No 1) [2019] NSWSC 1583
Court: Supreme Court of New South Wales
Date: 19 November 2019
Judge: N Adams J

Background

The accused was charged with the murder of a man at Georges Hall on 25 October 2016. The Crown's primary case was that the accused participated in a joint criminal enterprise with two unidentified shooters, his alleged role being surveillance of the deceased's residence on multiple occasions before the shooting. An alternative count charged him as an accessory before the fact.

The trial had been listed since December 2018 and was due to commence on 11 November 2019. Just two working days before the trial, the Office of the Director of Public Prosecutions (ODPP) filed a motion seeking access to transcripts of compulsorily obtained evidence given by five witnesses to the NSW Crime Commission. Such evidence is given under compulsion and is subject to strict statutory restrictions on its use and disclosure.

The ODPP sought orders under s 45(4) and s 45(5) of the Crime Commission Act 2012 (NSW) for the Supreme Court first to receive and review the transcripts, and then to release them to both the Crown and the accused. The accused had been on remand for over two and a half years at the time of the application.

  • Whether the "interests of justice" required the release of compulsorily obtained Crime Commission evidence to the parties under s 45(4) and s 45(5) of the Crime Commission Act 2012 (NSW)
  • What weight should be given to the probative value of the material, the lateness of the application, and the impact on the trial date
  • Whether the public interest in protecting the confidentiality of compelled Crime Commission testimony was outweighed by other considerations

Decision

Adams J reviewed the Crime Commission transcripts in private and set out her reasons concerning their content in a confidential, sealed annexure to the judgment. This approach, following a precedent set in Quami (No 11), preserved the parties' appeal rights while protecting the sensitive material from disclosure.

The court found that the probative value of the Crime Commission evidence was low in the context of the Crown case. Notably, the Crown confirmed during the hearing that a relevant suspected link to two individuals (one of whom had since died) no longer formed part of its case and was to be removed from the Crown case statement. Without that connection, any material showing association between those individuals and the accused carried little relevance.

Adams J also weighed the lateness of the application heavily against the Crown. The trial had been scheduled for nearly a year, and no adequate explanation was offered for why the application was brought only days before the trial was to begin. Even if the interests of justice had otherwise favoured release, doing so would have prevented the trial from proceeding that year, with the accused remaining in custody on remand throughout.

Taking all factors together, the court was not satisfied that the interests of justice "required" the release of the material. The application was dismissed and the sealed annexure was ordered to be retained with the file, accessible only by order of a judge of the Supreme Court or a higher court.

Orders Made

  • The Crown's application for material to be released under s 45(5) of the Crime Commission Act is refused.

Key Takeaways

  • Under s 45 of the Crime Commission Act 2012 (NSW), a court must be satisfied that the "interests of justice" positively require the release of compulsorily obtained Crime Commission evidence before ordering its disclosure to parties in criminal proceedings.
  • Low probative value of the material sought is a significant factor weighing against release, particularly where the Crown's case has narrowed and the proposed relevance of the material no longer holds.
  • The timing of an application for Crime Commission material matters: where a trial has been listed for nearly a year and no adequate explanation is given for a last-minute application, the lateness is a factor militating against release.
  • Prolonged pre-trial custody of an accused is a relevant consideration when assessing the consequences of any adjournment that would result from granting the application.
  • Where a court must examine confidential Crime Commission material in assessing a release application, placing the substantive reasons in a sealed, unpublished annexure is an accepted mechanism to preserve appeal rights while protecting the material from further disclosure.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
- Crimes Act 1900 (NSW), ss 18(1)(a), 346

Cases:
- Quami (No 11) (cited for the approach of placing confidential reasons in a sealed annexure)