R v Hawat

Supreme Court of NSW|2019-11-26|Before: Adams J, Mr J

Solicitors: Solicitor for Public Prosecutions (Crown) Dib & Associates Lawyers (Accused) File Number(s): 2017/194590

Background

On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. Mr Assaad was gunned down outside his home by two masked gunmen on the morning of 25 October 2016. It is not the Crown case that the accused was one of the shooters. Rather, the Crown case is that he conducted surveillance of the deceased's home before and on the day of the shooting. The accused is said to be liable for the murder of Mr Assaad on alternate bases: either he was part of a joint criminal enterprise with the two unidentified shooters to murder the deceased or he was an accessory before the fact to the murder.

Evidence on the voir dire

LD 14 is a recording of a conversation which took place in a room in the Bankstown police station between the accused and his wife, Ms Amany Merhi, on 29 June 2017. It commenced after the accused had participated in an ERISP (electronically recorded interview with a suspected person) and then been spoken to by one of the investigating Detectives regarding possibly becoming a Crown witness and/or placing his family on some form of witness protection. Although the recording was lengthy, only two small portions of it were relied upon by the prosecution. (In the transcript of the conversation, "OH" refers to the accused and "AM" to his wife).
The first of the two portions of LD 14 relied upon is in these terms: "OH Hey, they say they will give me protection, if I say what happened (AM shakes her head indicating 'no') but I can't 'cause they're gonna charge me for every…."
The second is in these terms: "AH So we're gunna have to go to court……? OH Yeah, I'm gonna get charged unless I roll, which I'm not."
The evidence as to what occurred prior to this recordings was as follows.
On 16 January 2017, a listening device warrant was granted by a Supreme Court Justice in relation to this investigation and an extension of the warrant was granted on 12 April. It was a "specified person" warrant and provided police with lawful authority to use four listening surveillance devices, four optical surveillance devices and four tracking devices in relation to the accused.
On 28 June 2017, one each of the listening and optical devices were placed in a room at Bankstown Police Station. A search warrant was also obtained from Bankstown Local Court in respect to the accused's residential premises in Greenacre. At 6.04am on Thursday, 29 June, 2017, a number of other police attached to Strike Force Pippa and the Bass Hill Region Enforcement Squad attended the accused's home for the purpose of executing this search warrant and arresting him.
At 7:33am, the accused participated in an ERISP whilst in custody at Bankstown Police Station. He was interviewed by Detective Senior Constable Lucy Ede and Detective Sergeant Ricky Hennessy. The interview commenced at 7:33am. The accused had telephoned a solicitor and left a message but the ERISP commenced before the solicitor called back. At around 9am the accused spoke with his solicitor on the telephone. He then refused to participate in the interview any further, responding with "no comment" to remaining questions. The interview was terminated at 9:12am (it is to be noted that those portions of the ERISP were edited out of the ERISP when it was tendered and became Exhibit V at the trial).
Detective Sergeant Ricky Hennessy made a statement on 22 November 2019 setting out a conversation he had with the accused following the ERISP. His evidence was that he said the following to the accused: "5. I want to talk to you now about the situation you might find yourself in, because you are going to be charged now with Hamad's murder. I believe, from investigating this matter and knowledge of other homicide investigations that this murder was part of an ongoing conflict. I am concerned for your safety, and the safety of your family because as of today, your name will be made public, and the nature of the charges will be known. I am not only concerned that Hamad's associates might try to kill you for payback n your assistance in killing Hamad … I want to make it clear that there is no specific information at this time to indicate that you are at threat, but based on what I know about the background of this overall conflict, and what I know about … I think there could be a serious risk. Do you understand what I mean?"
The remainder of the statement is as follows: "6. The accused then asked 'They are going to know my name?'. 7. I said, 'Yes, and that you have been charged in connection with the murder of Hamad Assad.' 8. The accused said, 'Will that be in the media?' 9. I said, 'Yes I expect so.' 10. The accused said, 'Well what can I do about it?' 11. I said words to the effect of, 'I'm going to explain in generic terms something I would like you to consider, and when your legal rep is available it is something I am happy to discuss with them. As I have already explained to you, I know you didn't shoot Hamad, but I know you know who did. The evidence that you could provide I believe would be substantial evidence. If you were to agree to provide that evidence I could apply to the Director of Public Prosecutions for him to consider offering an inducement to you, which would mean any evidence you provided us couldn't be used against you. Do you understand that concept?' 12. The accused said, 'Yeah.' 13. I said, 'In some cases where a witness's evidence is considered so important or so valuable to the prosecution, there are rare instances where immunity from prosecution is also considered. Do you understand what immunity means? That if someone is provided immunity they aren't prosecuted at all?' 14. The accused said, 'Yes.' 15. I said words the effect, 'The reason I raise these things in broad terms is that in cases where people agree to become witnesses, it allows us, the police, to provide consideration for witness protection which applies not just to the witness, but to their family as well. 16. The accused said, 'So that would include my wife?' 17. I said, 'Yes, and your family if it was assessed that they were at sufficient risk.' 18. I saw the accused taking some time to consider what I had said. The accused said, 'What about by [sic] Dad and Mum, and brothers and sister?' 19. I said, 'They can be considered too.' 20. I said words the effect, 'In a case like yours, because you might stay in custody depending on what happens with your bail, the police can also offer witness protection whilst people are in custody. If you are considering what I am explaining, I can go into more detail about what that involves. 21. The accused, 'I need some time to think about it.' 22. I said, 'I understand it is a big decision, and I also understand that you probably won't take my word for what I have explained to you, so I encourage you to either seek legal advice and get back to us, or like I said earlier, I can have discussion with you and your legal rep together.' 23. The accused said, 'I'll speak to my solicitor.' 24. The accused was lead [sic] out of the interview room. 25. A short time later the accused was allowed to speak with his wife, Amany Merhi in another part of the custody area of the charge room."
In cross-examination on the voir dire, Detective Sergeant Hennessy explained that he had a warrant to place the devices anywhere the accused would be as it was a specified person warrant. He agreed that he was "wary" about allowing the accused and his wife to speak together at the police station. By the time Ms Merhi arrived at Bankstown Police Station Detective Sergeant Hennessy was already in possession of previous listening device material which recorded conversations between the accused and Ms Merhi.
As for his statement dated 22 November 2019, Detective Sergeant Hennessy agreed that he did not make any contemporaneous notes of the conversation set out in his statement. He stated that Detective Ede was also present for the conversation and it was in a room where there were recording facilities but he chose not to record the conversation. He further indicated that the listening device was placed in the charge room the day before. He agreed that there was a "degree of pre-planning" to the arrest and subsequently placing the accused in the room with his wife. He disagreed, however, with the proposition that he had rehearsed the warning extracted above at [12] about potential threats that would be made to the accused after his arrest. He also disagreed with the proposition that the police had "tipped off" the media.
It was not suggested to Detective Sergeant Hennessy that the conversation had not taken place.
The other evidence on the voir dire was the ERISP and the warrant.

Relevant legislation

Section 138 of the Evidence Act is in these terms: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Section 90 of the Evidence Act is in these terms: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

The accused's submissions

Mr Kelly SC for the accused submitted that the conduct of the police in recording the alleged admissions contained in LD 14 was an impropriety within the meaning of s 138(1)(a). He submitted that it was an impropriety for Detective Sergeant Hennessy to pre-empt the accused's desire not to participate in the ERISP any longer by fitting out a room in the police station with an optical surveillance device and listening device ahead of the interview commencing.
He submitted that a "ruse was deployed" to undermine the accused's right to silence. The ruse involved was conducting the interview, making a warning which would make the accused fearful about the safety of his family members and then creating a situation where he would speak to someone in the police station about the events of 25 October 2016. He summarised the accused's position in this way: "The impropriety is that he has refused ultimately in his interview to make admissions against interest. The police have turned their minds, not to whether they can engage with him down the track, but as to whether they can obtain from him admissions against interest by way of other means."
Turning to the specific matters outlined in s 138(3), Mr Kelly submitted that the probative value of the evidence was difficult to calibrate. In terms of the first alleged admission, "they say they will give me protection if I say what happened", he submitted that it amounted to something less than an admission of involvement. Rather, it only amounted to an admission of some relevant knowledge. He submitted the second excerpt was a reference to pleading guilty to a charge laid by the police. He accepted that this was a serious offence.
When addressing s 90, Mr Kelly submitted that the unfairness arose from the circumstances of the recording and the preceding discussion with Detective Sergeant Hennessy. He submitted that the recording demonstrated that the conversation with Detective Sergeant Hennessy clearly "loomed large" during the accused's conversation with his wife. At one point, for example, the accused stated, "I know they're going to harm us. They're going to harm us, to my family." He submitted that the accused had a sense of apprehension, had refused to answer questions once he received legal advice and thus it would be unfair in all those circumstances to admit these two portions of the interview into evidence.

The Crown submissions

The Crown accepted that it bore the evidentiary burden in relation to s 138, but noted that the accused bore that burden in relation to s 90. Counsel for the Crown submitted that there was no impropriety under s 138. The police engaged in standard policing practice and there was no undercover operative present. Furthermore, the Crown noted that the recording was authorised by a warrant and that the accused simply recorded a conversation which the accused was free to engage in, which he did. The Crown submitted that it was not an issue of his right to speak to police being affected. Furthermore, the Crown cited Fleming v The Queen [2009] NSWCCA 233 as authority for the proposition that it is permissible for police to use deceptive tactics which do not involve illegal practices.
Turning to s 90, the Crown submitted that the admission was a voluntary one by the accused and it was not evidence elicited by questioning. He submitted that it was not a situation where there was any oppressive conduct by the police. He submitted that Detective Sergeant Hennessy did not seek to make the accused fearful, but rather "was pointing out the facts of life to Mr Hawat". The police were interested in knowing the identity of the shooters and this was a legitimate issue to put to the accused. He submitted that the test under s 90 was that of community standards concerning the maintenance of the rule of law in a liberal democracy: Regina v Suckling [1999] NSWCCA 36 at [40]-[41]. It was submitted that the admissions were not elicited in a way that was contrary to community standards.

Consideration

The first question to address is whether the police acted "improperly" in recording the conversation between the accused and Ms Merhi. Section 138 allows for discretionary exclusion on the basis of either a breach of an Australian law or some other "impropriety". There is no definition of "impropriety" in the Evidence Act; it is for the courts to determine impropriety. As Basten JA noted in Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426 at [23]: "23. It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced."
Specific content to the notion of "impropriety" is provided in s 138(2) and s 139. Additional examples of impropriety can include breach of internal guidelines by police. It can also include misstatements of fact in affidavits, entrapment, offering an inducement to a witness by telling them that they do not have to give evidence and others. Relevantly, as Hamill J observed in R v Taleb [2019] NSWSC 241 at [128]-[133]), it can include a police officer persisting in questioning a suspect after he or she has indicated an unwillingness to answer questions.
In R v Sotheren [2001] NSWSC 204, the accused was taken to a room which had a television camera and was interviewed. During this interview, the accused, who was still standing, was asked by the detectives whether he wished to be interviewed in relation to a murder and several charges in relation to armed robberies. He was also asked whether he could be photographed or would agree to participate in a line-up. While this was happening, the accused was on video. The accused looked at the camera and declined. The footage of him looking at the camera was then used by police for identification purposes. Dowd J held that: "35. In law enforcement, there is however a degree of deception and trickery in obtaining evidence, such as in the use of undercover police, listening devices, informers, decoys, and phone tapping (see Australian Law Reform Commission., Evidence: Report No. 26, vol 1, at para 965. However much one may recoil from the fact of a person who is in custody being taken into a room and photographed by a trick or deception, there was no action on the part of the police that was not of a similar character to the wearing of a covert listening device, or the use of an informer to lull a suspect into a sense of complacency, and to encourage him or her engaging in conversation to make admissions that may be admissible. 36 However immoral or undesirable it may be to obtain the evidence in the way that it was obtained here, it was not, in my view, improper for that to occur. There are very frequently occasions where people are photographed either leaving courts or by surveillance cameras (both inadvertently or deliberately used). Photographs may be obtained serendipitously. Impropriety connotes, in my view, something more than the actions of the police in these proceedings, such as the false procurement of evidence and the obtaining of an admission or concession by lying or deception, such as an allegation that a co - offender has already confessed. In any event, looking at each of the matters that need to be considered under s138(3), even if such action were improper, the clear probative value of the evidence in this case, the importance of the evidence, and the nature of the offence must be taken into account in assessing the gravity of the impropriety."
Section 138(3) of the Evidence Act provides mandatory considerations to have regard to when undertaking the evaluative exercise required by s 138(1). These factors reflect the "high public policy" questions with which the provision is concerned: Gedeon v The Queen (2013) 237 A Crim R 326; [2013] NSWCCA 257 per Bathurst CJ at [177]. The onus of proof is on the party seeking exclusion to establish impropriety or illegality. Once this is established, it is for the party seeking to rely on the evidence to demonstrate that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way that it was obtained.
I am not satisfied that there was any impropriety in the investigative techniques adopted by investigating police. The recording was made subject to a warrant and thus lawful. The fact that it was installed the day before the anticipated arrest and interview of the accused is consistent with the evidence of Detective Hennessy that it was anticipated that if the accused was permitted to speak with his wife, he may discuss the charge and arrest with her. No breach of any internal police guideline, misstatement of fact, offer of inducement or persistence in questioning after the accused indicated an unwillingness to answer questions arose in this case.
The impropriety relied upon was a denial of the accused's right to choose not to speak with police. It was said to be improper for police to record the accused at the police station after he had been given legal advice not to speak to police any more. The difficulty is that he was not secretly recorded speaking to any police officer; he chose to speak to his wife. This was voluntary. As for any expectation that he would not be recorded at the police station, in another part of the recording the accused's wife implies that she suspects that police might be listening to the conversation.
Nor do I consider that any impropriety arose from the fact that police had already listened to many recordings between the accused and his wife before 29 June 2017 and were thus aware of the dynamic in their relationship which suggested that if placed together in a room they were likely to talk about the charge. It seems to me that this was just use of proper investigation techniques.
For these reasons I am not satisfied that the police acted improperly in the manner in which they recorded the accused speaking with his wife at Bankstown Police Station. On this basis there is no need for me to consider the factors in s 138(3).
The same evidence and arguments relied upon in support of exclusion under s 138 of the Evidence Act were relied upon in relation to exclusion under s 90.
Section 90 reflects the common law unfairness discretion, which allowed courts to exclude admissions in criminal proceedings where, having regard to the circumstances in which the admission was made, it would have been be unfair to the defendant to use the evidence. The burden of proof rests on the defence. An admission could be excluded on the basis that, having regard to police conduct and all of the circumstances of the case, admitting the evidence would be unfair. In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1, Toohey, Gaudron and Gummow JJ Held at [69] that a court's consideration of s 90 should concentrate on the following matters: "… turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards."
Their Honours went on to observe at [91]: "… In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned."
The factual difference between the cases of Mr Pavic and Mr Swaffield highlights the focus of the relevant principle. A conversation between Mr Swaffield and an undercover police officer was secretly recorded and contained admissions in circumstances where Mr Swaffield had earlier indicated to police that he did not wish to be interviewed. The High Court held that these admissions were inadmissible because of the police officer's duty to caution Mr Swaffield beforehand. Mr Pavic, on the other hand, had made recorded admissions to a friend. The High Court held that these admissions were admissible as there was no abrogation of Mr Pavic's right to choose not to speak to police. As Brennan J observed in relation to Mr Pavic's appeal at [35]: "….. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods'."
In Em v The Queen (2007) 232CLR 67; [2007] HCA 46, Gleeson CJ and Heydon J found no reason to exclude an admission which was induced by the police knowingly taking advantage of the offender's mistaken belief that he was not being recorded and that his admission could not be used against him. Kirby J was in dissent, but made the following observation at [192]-[193], referring to Swaffield : "192. In my own reasons in Swaffield, I also referred to the principles stated in Van der Meer. I made reference by way of comparison to s 90 of the Uniform Evidence Acts, even though it was not there applicable. I acknowledged that s 90 "reflects the common law unfairness discretion" and permitted changing social circumstances to be considered. In discussing such changing circumstances, I accepted that "[m]odern surveillance technology and covert police operations are potentially effective means for [bringing wrongdoers to justice]". 193. After reviewing overseas authority, I remarked, in words to which I adhere (and which were cited in the second Court of Criminal Appeal in these proceedings): 'Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in an endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused … that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police … in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.'" [Emphasis added.]
Recently, Beech-Jones J summarised the principles derived from these decisions in R v Tarantino (No 6) [2019] NSWSC 1174 at [203]-[205].
Having regard to these principles, I am not satisfied that the recording between the accused and his wife at Bankstown on 29 June 2017 was obtained by police "in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent". For the same reasons as I do not think the police acted improperly, nor do I consider that the approach adopted was unfair to the accused. Although it is to be accepted that the focus of ss 138 and 90 are different and there may well be cases where certain evidence is not liable for exclusion under s 138 but is inadmissible by operation of s 90, this is not one of those cases.
For these reasons, I was not satisfied that there was any basis to exclude the relevant evidence and I made the order that the recording at Bankstown police station on 29 June 2017 was admissible.

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