R v Hawi & ors (No 12) [2011] NSWSC 1658 (6 July 2011)

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R v Hawi & ors (No 12) [2011] NSWSC 1658 (6 July 2011)

Last Updated: 13 February 2012

Supreme Court New South Wales

Case Title:	R v Hawi & ors (No 12)
Medium Neutral Citation:	[2011] NSWSC 1658
Hearing Date(s):	5 July 2011
Decision Date:	06 July 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence admissible
Catchwords:	CRIMINAL LAW - evidence - late objection to evidence known for months to be part of Crown case - chronological compilation of CCTV footage recorded by security cameras - whether misleading or incomplete - whether in the nature of a Crown submission
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation
- Counsel:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan)
File number(s):	2009/50087
Publication Restriction:

JUDGMENT

1. HIS HONOUR: The Crown proposes to tender CCTV footage recorded from various security cameras that were in place at Melbourne Airport and at the T3 Qantas Sydney domestic terminal on 22 March 2009. It also proposes to tender a PowerPoint compilation of some of that footage, together with some other footage that it does not propose to separately tender. There was argument yesterday about the admissibility of the PowerPoint compilation. Late yesterday I indicated my view that it was admissible. These are my reasons.

2. It has been known for at least a year that this PowerPoint compilation was something that the prosecution had available. As best I can gather, it has been known for at least two or three months that the Crown proposed to tender this compilation in the trial.

3. No one, up until yesterday, had indicated any objection to the concept of the compilation being tendered. Objections have been confined to certain discrete aspects of it. In particular, objections have been indicated to certain labelling within the compilation, such as text ascriptions to some of the figures depicted where it was not conceded that the figure was a certain person. I understand that the Crown has accommodated such foreshadowed objections by deleting such ascriptions.

4. The Crown Prosecutor informed me that she played this PowerPoint compilation during her opening address at the committal hearing 12 months ago. She said that it had subsequently been "tweaked" so as to remove certain descriptions and identifications, but, in substance, the footage is, as I understand it, essentially the same. That "tweaking" has continued subsequent to the Crown Prosecutor having played it to the jury during the course of her opening address on 25 May 2011.

5. Last Thursday, 30 June 2011, the Crown Prosecutor indicated that it had been proposed to tender the CCTV footage and the PowerPoint compilation following the completion of the eyewitness evidence and that it was anticipated that this would occur on Wednesday 6 July 2011. No objection was indicated on behalf of any of the accused at that point as to the idea of such a compilation becoming part of the evidence.

6. Yesterday morning, just after the morning adjournment, there was a further discussion about the proposed tender of the compilation which followed a discussion that had taken place the day before. The Crown Prosecutor confirmed that she had accommodated the objections to certain aspects of it that had been communicated to her by Mr Stratton SC for the accused Menzies, and Mr Gordon, counsel for the accused Kisacanin. Mr Gordon at that point rose to voice a concern that counsel should have the opportunity to view the material that was intended to go to the jury before it went to the jury. That was, of course, quite a reasonable concern to raise.

7. Following some discussion which seemed to have resolved the question of counsel having the opportunity to view the material, Mr Gordon then, completely out of the blue it must be said, raised an objection to the admissibility of the compilation itself. He outlined the nature of the objection. The primary evidence was the footage from the CCTV cameras themselves. The PowerPoint compilation, he submitted, "is simply a large section of the prosecution opening speech to the jury and is not the evidence at all" (T1890.10).

8. Mr Gordon submitted that there was a danger of the jury having something which represented the Crown case and "which omit(s) such features such as timings, when the primary evidence is the CCTV footage. That is what the jury should concentrate on with all its good and bad points, rather than the polished version presented by the Crown" (T1890.15). Mr Gordon then apologised for raising the matter at such a late stage, although he also indicated that he had been considering it "right from the word go" (T1890.28). The issue was then stood down for further consideration at 4pm.

9. When the issue was revisited later in the day, the Crown Prosecutor confirmed that the PowerPoint material was a compilation in chronological order that was intended to save the jury time in coming to grips with a considerable body of material from individual surveillance cameras and to make the evidence more comprehensible. No counsel had suggested to the Crown that the compilation was incomplete. No counsel had asked that any material not included in it be included. Putting it in my terms, no counsel had suggested to the Crown, or previously to me, that the compilation was unfair in that it supported the Crown case by omitting material that might support the case for any of the accused.

10. I raised with Mr Gordon why the objection was being taken at such a late stage when he had been on notice of the proposed tender of the compilation for quite some time. That aspect may be put to one side because it really does not go to the gravamen of the issue. However, I remain of the view that it is of concern that counsel could not attend to a determination of whether there was an objection to the admissibility of the evidence when, up until yesterday, all that had been indicated was an objection to discrete portions of it which, as I have indicated, the Crown has accommodated.

11. The objection was on these bases: the compilation duplicates material that would otherwise be before the jury; the compilation represented an opening address to the jury being placed into evidence; it was not evidence in itself but rather was "a tool for the Crown's speech" (T1952.46); the compilation was "incomplete" and "misleading" ; the defence had not previously been served with a copy of the compilation that was proposed to be tendered; and, the material presents "a manicured version of the CCTV footage the Crown is also to tender put together in a way which suits the Crown case and amounts therefore to a presentation of the Crown case" (T1955.18).

12. I do not, with respect, accept the validity of any of the bases of the objection.

13. Pre-trial disclosure orders pursuant to s 141 of the Criminal Procedure Act 1986 were made in this matter on 11 March 2011. Such orders imposed an obligation upon the legal representatives of the accused to disclose, inter alia, whether the accused person proposed to dispute the admissibility of any of the proposed evidence disclosed by the prosecutor, and the basis of the objection: s 143(d). That disclosure obligation was ongoing: s 147. The Crown has complied with its obligation to disclose the proposal to tender the PowerPoint compilation. No one prior to yesterday had indicated any objection to it. There are sanctions for a failure to comply with the disclosure obligations in Chapter 3, Part 3, Division 3 of the Act. However, I did not determine the objection by reference to those provisions.

14. The interests of the administration of justice involves concepts of fairness. Fairness applies as much to the Crown as it does to the accused. Mr Gordon's objection at such a late stage carried with it the potential for unfairness to the orderly presentation of the Crown case. But, again, I did not determine the objection upon that basis.

15. In relation to the various bases put forward by Mr Gordon for objecting to the admissibility of the compilation, my response is simply to indicate that I accept the Crown submission that there is a worthwhile purpose to be served by the jury being provided with a chronological compilation of footage from the CCTV cameras that will hasten and aid their comprehension of the evidence. It is appropriate that the jury also have the CCTV footage itself. However, restricting the jury to the latter would involve the jury in a convoluted and time consuming task in trying to piece it all together in a logical order.

16. A particular matter I take into account is that whilst there were submissions made by Mr Gordon that the compilation was " misleading " and " incomplete ", there was no suggestion as to what should be added to it that would render it more accurate, fair and complete. There was no suggestion by counsel for each of the other accused that there was anything about the compilation that was misleading or incomplete.

17. Mr Grant, junior counsel for the accused Hawi, indicated that he would like some time to discuss with his leader whether there was any objection to the tender of the compilation. In relation to this, two things are to be noted. There has been no indication, per s 143(d) of the Criminal Procedure Act and the ongoing disclosure obligation in s 147 that there was any objection to the admissibility of evidence that has been disclosed by the Crown for a very long time. Secondly, Mr Dunn, of Queen's Counsel, who was not present in court yesterday but who was present last Thursday, 30 June 2011 when the Crown indicated the proposed tender of the material the following Wednesday, that is today, has had ample opportunity to indicate an objection. I felt I was safe to assume that leading counsel for Mr Hawi would have acted responsibly and, as he has not previously indicated any concern, there is in reality no concern on behalf of his client as to the tender of the compilation.

18. For those reasons I was of the view that the PowerPoint compilation of the CCTV footage was admissible.

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