Citation: R v Hawat (No 4) [2019] NSWSC 1726
Court: Supreme Court of New South Wales
Date: 9 December 2019
Judge: N Adams J
Background
The accused faced trial for murder, with the Crown alleging he was either part of a joint criminal enterprise to kill the deceased or an accessory before the fact. The Crown's case centred on CCTV footage showing the accused's van conducting surveillance near the deceased's home before the shooting.
During a recorded police interview (an ERISP, or Electronically Recorded Interview of a Suspected Person) on 29 June 2017, the accused initially answered questions before his solicitor contacted the station, after which he gave only "no comment" responses. The Crown sought to rely on portions of the pre-solicitor interview as deliberate lies evidencing consciousness of guilt. Specifically, the accused denied that the van depicted in CCTV footage was his.
The accused objected to three separate passages in the ERISP where he expressed willingness to cooperate with police and proclaimed his innocence, arguing those passages should be excluded from the jury's consideration.
Legal Issues
- Whether the three impugned ERISP answers (in which the accused declared his cooperation and innocence) were relevant under ss 55 and 56 of the Evidence Act 1995 (NSW)
- Whether, if relevant, those answers should be excluded under s 137 of the Evidence Act because their probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Adams J found the three passages were relevant under ss 55 and 56 of the Evidence Act. The jury would need a direction consistent with Edwards v The Queen (1993) 178 CLR 19 before relying on the alleged lies as consciousness of guilt. That direction requires the jury to be satisfied the lies were deliberate rather than the product of panic. The impugned passages provided context for making that assessment, and accordingly could rationally affect the probability of a fact in issue.
On the s 137 question, Adams J was not satisfied that any danger of unfair prejudice arose. The defence argued the passages might distract the jury from the core question of whether the van denials were deliberate lies, or that the jury might overvalue them. The court rejected both concerns. Viewed alongside earlier recorded conversations between the accused and his wife, in which the Crown alleged they rehearsed what he would tell police, it was open to the jury to treat the cooperative-sounding statements as disingenuous. That reasoning was logically connected to the issues in the case and did not risk misuse of the kind described in Papakosmas v The Queen (1999) 196 CLR 297 and Colby v The Queen [1999] NSWCCA 261.
Adams J further noted that the three passages were substantively repetitive, each amounting to the same declaration of innocence and willingness to assist. Although their probative value was acknowledged to be low, no corresponding danger of unfair prejudice existed to outweigh it. The evidence was therefore admissible.
Orders Made
• The three impugned answers were ruled admissible.
Key Takeaways
- Statements of cooperation and professed innocence made during a police interview can be relevant where the jury must assess whether accompanying denials were deliberate lies or the product of panic, as required by the Edwards v The Queen direction on consciousness of guilt.
- Under s 137 of the Evidence Act 1995 (NSW), "unfair prejudice" targets the risk that evidence will be misused in a way logically unconnected with the issues in the case, not simply that the evidence strengthens the prosecution's case.
- Even evidence with modest probative value survives s 137 scrutiny if no corresponding danger of unfair prejudice is established; the provision requires a balancing exercise, not automatic exclusion of low-value material.
- Contextual evidence drawn from other recordings (here, conversations between the accused and his wife) can inform whether seemingly innocuous interview statements carry additional significance, provided that reasoning remains logically connected to the issues at trial.
- Where impugned passages are substantially repetitive in content, the risk that a jury will "overvalue" them is reduced, as the jury will receive appropriate directions on how to approach the alleged lies in any event.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
Cases
- Edwards v The Queen (1993) 178 CLR 19; HCA 63
- Papakosmas v The Queen (1999) 196 CLR 297; HCA 37
- Colby v The Queen [1999] NSWCCA 261