Citation: R v Hawat (No 3) [2019] NSWSC 1701
Court: Supreme Court of New South Wales
Date: 9 December 2019
Judge(s): N Adams J
Background
The accused faced a charge of murder arising from the shooting death of a man outside his home in October 2016. The Crown case was not that the accused fired the shots, but that he conducted surveillance of the deceased's property before and on the day of the killing. The prosecution put the case on two alternative bases: participation in a joint criminal enterprise with the unidentified shooters, or accessory before the fact to murder.
Following the accused's arrest on 29 June 2017, police placed a listening device (authorised under an existing warrant) in a room at Bankstown Police Station. After the accused completed a formal electronically recorded interview and was spoken to by a detective about the possibility of becoming a Crown witness, he was permitted to speak privately with his wife in that room. Police covertly recorded the conversation.
Two short passages from the recording were sought to be tendered by the prosecution at trial. In both passages, the accused made statements suggesting he was aware of the murder charges against him and that he was declining to cooperate with police. The accused challenged the admissibility of those passages before trial.
Legal Issues
- Whether the covertly recorded conversation was improperly obtained and should be excluded under s 138 of the Evidence Act 1995 (NSW), which applies where evidence is obtained by unlawful or improper means
- Whether, even if not improperly obtained, it would be unfair to admit the recording under s 90 of the Evidence Act, which gives the court a discretion to exclude admissions where it would be unfair to the defendant to use them
Decision
Adams J found that the recording was lawfully obtained. Police held a valid "specified person" warrant that authorised placement of listening and optical devices anywhere the accused would be located. The device was placed in the room at Bankstown Police Station lawfully pursuant to that warrant, and its use was not challenged on the grounds of legality. Accordingly, there was no basis for exclusion under s 138.
On the impropriety question under s 138, the court drew on established authority, including R v Sotheren and the High Court decisions in Em v The Queen and R v Swaffield, confirming that the use of subterfuge, ruses and technology by police is not inherently improper where it is lawfully deployed to investigate crime. The detective's conversation with the accused about witness protection and potential inducements, followed by the facilitated meeting with the wife, did not cross into conduct the court regarded as improper.
On the s 90 unfairness question, the court applied the principle that the critical inquiry is whether the admission was elicited in unfair derogation of the accused's free choice to speak or remain silent. Adams J concluded that it was not. The accused spoke spontaneously to his wife in circumstances where he had already received legal advice during the interview and had been expressly told he could seek further advice. The police conduct facilitated the meeting but did not, in the court's assessment, undermine the accused's freedom of choice in a manner warranting exclusion.
Adams J noted that the focus of ss 138 and 90 differs and there may be cases where evidence survives the s 138 test but is nonetheless excluded under s 90. This was not such a case. The recording from Bankstown Police Station on 29 June 2017 was ruled admissible.
Orders Made
• The recording at Bankstown police station on 29 June 2017 was admitted as evidence.
Key Takeaways
- The Supreme Court confirmed that a "specified person" listening device warrant can lawfully authorise the covert recording of a suspect in a police station room, provided the warrant is drafted with sufficient breadth to cover that location.
- Under s 138 of the Evidence Act 1995 (NSW), evidence is not improperly obtained merely because police used subterfuge or covert recording technology, so long as the conduct was lawful and directed to legitimate investigative purposes.
- The dispositive test under s 90 for excluding an admission is whether it was obtained in unfair derogation of the suspect's free choice to speak or remain silent, not simply whether the suspect was unaware of the recording or was placed in circumstances that prompted the statement.
- Deliberate non-recording by a detective of his pre-meeting conversation with the accused, and the absence of contemporaneous notes, did not itself render the subsequent covert recording improperly obtained or unfair within the meaning of either provision.
- Sections 138 and 90 operate on distinct rationales, and the court acknowledged that in some cases evidence might pass the s 138 threshold while remaining excludable under s 90. No such separation arose on the facts here.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 90, 138
Cases
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257
- R v Hawat (No 2) [2019] NSWSC 1691
- R v Sotheren [2001] NSWSC 20
- R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
- R v Taleb [2019] NSWSC 241
- R v Tarantino (No 6) [2019] NSWSC 1174
- Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426