Citation: R v Hawat (No 2) [2019] NSWSC 1699
Court: Supreme Court of New South Wales
Date: 2 December 2019
Judge(s): N Adams J
Background
The accused was charged with the murder of a man who was shot dead outside his home by two masked gunmen in October 2016. The Crown did not allege that the accused was one of the shooters. Instead, the prosecution case was that he conducted surveillance on the deceased's home before and on the morning of the killing, making him liable either as a participant in a joint criminal enterprise or as an accessory before the fact.
Prior to trial, a range of pre-trial evidentiary rulings were sought concerning lawfully obtained telecommunications intercepts and listening device recordings. Most were resolved by agreement or earlier rulings. Three transcripts said to contain admissions by the accused remained in dispute: LD 6, LD 8, and LD 14.
This judgment deals with LD 6 and LD 8. The ruling on LD 14 is addressed separately in R v Hawat (No 3) [2019] NSWSC 1701. The accused objected to portions of both recordings on the grounds of relevance under sections 55 and 56 of the Evidence Act 1995 (NSW), and unfair prejudice under section 137.
Legal Issues
- Whether portions of listening device recordings (LD 6 and LD 8) were relevant within the meaning of sections 55 and 56 of the Evidence Act 1995 (NSW)
- Whether, even if relevant, those portions should be excluded under section 137 of the Evidence Act because their probative value was outweighed by the danger of unfair prejudice to the accused
Decision
LD 6: Conversation about the accused's van
LD 6 captured a conversation in April 2017 between the accused and an unknown male. A significant part of the Crown case involved the accused's van, which was alleged to have been used during surveillance of the victim's home. Adams J found the disputed passage was relevant because the conversation as a whole concerned the van and the accused's apparent concerns about a police investigation. The accused's use of coded language throughout was consistent with this interpretation.
On the question of unfair prejudice, the objected-to passage included a reference to the accused "rolling around in Melbourne," which the defence argued signalled a change of topic and risked the jury treating surrounding statements as admissions when the evidentiary foundation was insufficient. Adams J was not satisfied that the jury would be misled into treating the Melbourne reference as part of the same subject matter. The probative value of the passage, as a conversation about the van in the context of a police investigation, was found to be high, and no danger of unfair prejudice under section 137 was established.
LD 8: Conversation with the accused's wife
LD 8 captured a conversation between the accused and his wife, recorded one day after police first spoke to him. The Crown sought to rely on alleged lies the accused told during his ERISP (a recorded police interview) as evidence of consciousness of guilt. Adams J found LD 8 was relevant to whether those lies were spontaneous or pre-planned, because the recording appeared to show the accused rehearsing what he intended to tell police. The accused was whispering during the exchange, which further supported that inference.
Adams J rejected the argument that the jury might use the recording in a manner logically disconnected from the issues at trial. Treating the conversation as a "dress rehearsal" for the police interview was directly connected to the purpose for which the Crown tendered it. The conversation also contained an admission placing the accused at the scene. No danger of unfair prejudice under section 137 was established, and the recordings were ruled admissible.
Orders Made
- The material contained in LD 6 and LD 8 is admissible.
Key Takeaways
- Relevance under sections 55 and 56 of the Evidence Act is assessed solely by reference to the capability of the evidence rationally to affect the probability of a fact in issue; questions of potential inadmissibility on other grounds are not considered at that stage.
- Under section 137, "unfair prejudice" refers to the risk that a jury will use evidence in a manner logically unconnected with the purpose for which it was tendered, not simply that the evidence is damaging to the accused.
- Where a court is not satisfied that a jury would misuse a contested passage, the high probative value of that passage will not be outweighed by any notional risk of prejudice, and exclusion under section 137 is not warranted.
- A recording of an accused apparently rehearsing answers before a police interview is capable of being highly probative on the question of whether subsequent lies to police were deliberate rather than the product of confusion or spontaneous panic, directly engaging the requirements of a lies direction under Edwards v The Queen.
- A lies direction requires the jury to be satisfied, among other things, that an alleged lie was deliberately untrue; evidence bearing on whether a lie was pre-planned rather than accidental goes to the heart of that inquiry.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
Cases
- Colby v The Queen [1999] NSWCCA 261
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Hawat (No 3) [2019] NSWSC 1701
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50