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Supreme Court 12 May 2020

R v Hawat (No 6)

[2020] NSWSC 532

Homicide
CRIME COSTS MURDER JOINT CRIMINAL ENTERPRISE ACCESSORY BEFORE THE FACT

Citation: R v Hawat (No 6) [2020] NSWSC 532
Court: Supreme Court of New South Wales
Date: 12 May 2020
Judge: N Adams J

Background

The accused was charged with the murder of a man shot dead in his driveway in Georges Hall in October 2016. The Crown alleged that the accused participated in a joint criminal enterprise to commit the murder, or was alternatively an accessory before the fact. The case against him was not that he was one of the shooters, but that he conducted surveillance using a white van in the street where the victim lived in the days before the killing.

After a trial in late 2019, involving several contested evidentiary rulings, the jury acquitted the accused on 9 December 2019. He then applied to the Supreme Court for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), which would have entitled him to seek reimbursement of his legal costs from the Consolidated Fund.

  • Whether the court should grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Specifically, whether the prosecution would not have been reasonably instituted had the Crown possessed all relevant facts before commencing proceedings (s 3(a) of the Act)
  • Whether any act or omission by the accused that contributed to the institution or continuation of proceedings was reasonable in the circumstances (s 3(b) of the Act)

Decision

Adams J refused the application. The statutory test under s 3 of the Act is not simply that a prosecution was weak or ultimately unsuccessful. The question is whether, knowing all the relevant facts, a reasonable prosecutor would not have instituted the proceedings at all. This is a more demanding standard than mere acquittal.

The court accepted that the Crown case was not strong. There was no direct evidence that the accused was monitoring the victim's movements or communicating with the shooters. Phone records showed no calls between the accused and any other person on the morning of the shooting. The Crown also conceded during the trial that it could not prove the accused was the sole driver of the white van on every occasion it was observed near the victim's home.

Despite these weaknesses, the court found the case was a legitimate circumstantial one. A reasonable inference could be drawn from the coordinated route taken by the stolen vehicle used in the shooting and the white van when leaving the scene, suggesting some degree of co-ordination between the parties involved. That inference, combined with a recorded admission by the accused that "I drove by" and intercepted communications after the offence, was sufficient to render the prosecution reasonably instituted.

The court was not satisfied that, had all relevant facts been known before proceedings commenced, it would have been unreasonable to prosecute. Accordingly, the certificate was refused.

Orders Made

The application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) was refused.

Key Takeaways

  • An acquittal alone does not entitle a defendant to a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The statutory test requires the court to be satisfied that a reasonable prosecutor, knowing all relevant facts, would not have commenced the proceedings.
  • A circumstantial Crown case, even one acknowledged by the court to be weak, can still clear the threshold for reasonable institution of proceedings. The relevant question is not the strength of the case but whether prosecuting it was unreasonable.
  • Where the Crown concedes evidentiary gaps during trial (here, that it could not prove the accused drove the van on every occasion), that concession does not automatically demonstrate the prosecution should never have been brought.
  • Under s 3 of the Act, both limbs of the certificate test must be satisfied: the prosecution must have been unreasonable to institute, and any conduct by the accused contributing to the proceedings must have been reasonable. The court's refusal on the first limb meant it did not need to resolve the second.
  • Several evidentiary rulings featured in this trial, including the exclusion of listening device recordings of very poor quality under s 137 of the Evidence Act 1995 (NSW) on the basis that jurors would have been left entirely reliant on police transcripts they could not independently verify.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Crime Commission Act 2012 (NSW), s 45(4)
- Evidence Act 1995 (NSW), ss 55, 56, 78, 79, 90, 137, 138

Cases:
- Beatson v R [2015] NSWCCA 17
- DAO v R (No 3) [2016] NSWCCA 282
- Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Hawat (No 2) [2019] NSWSC 1699
- R v Hawat (No 3) [2019] NSWSC 1701
- R v Hawat (No 4) [2019] NSWSC 1726
- R v Hawat (No 5) [2019] NSWSC 1727
- R v John Fejsa (1995) 82 A Crim R 253
- R v Johnston [2000] NSWCCA 197
- R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)
- Regina v Groom [2000] NSWCCA 53