It was submitted that the Crown was not in possession of evidence that was able to sustain a murder conviction. Several areas where the Crown's evidence was said to be deficient were identified. The first related to whether Mr Hawat was in the white van on each occasion when it was observed in Sturt Avenue. It was submitted that there were occasions when Mr Hawat may have been in Sturt Avenue. However, in the ERISP and conversations with the police he provided reasonable explanations as to why he may have been in the area. He gave evidence, for example, that another plumber with whom he had a working relationship lived on Sturt Avenue and that another friend, Mr Halawani, lived in an adjoining street. Mr Hawat's father-in-law also worked in the area.
It was further submitted that at the time the prosecution was commenced, the Crown case was that Mr Hawat was the only person who drove the white van. The Crown ultimately conceded that Mr Hawat was not the sole driver of the white van as on one occasion, on 10 October 2016, the van had been in Aberdeen in the Hunter Valley while Mr Hawat was in a different vehicle in Georges Hall. Mr Hawat's submissions placed emphasis on the Crown's "ultimate concession" that they could not prove that Mr Hawat was driving the van on each of the occasions when it was observed around the area of Sturt Avenue.
Mr Hawat also submitted that the Crown's case was deficient from the outset when it came to proving that he was conducting surveillance. It was submitted that there was no evidence that the driver of the van was monitoring Mr Assaad's movements nor communicating with those believed to be involved in the shooting. Mr Hawat noted that police obtained the call charge records for his mobile phone as well as Mr Kemel Barakat's (believed to have been one of the shooters). These records did not show that he was passing on information to Mr Barakat.
Further, it was submitted that even if it could be proved that Mr Hawat was in the van and was conducting surveillance, there was no evidence that he had done so with the intention of murdering Mr Assaad. Mr Hawat submitted that at no point in the trial was it proved that he had any knowledge of a murder; namely that there was no evidence that Mr Hawat was in contact with the shooters in the stolen Audi SQ5, according to the call records obtained by police. It was further noted that the white van was not in Sturt Avenue at the time of the murder and thus was not in a position to see the front of Mr Assaad's residence. This meant that the driver of the van would not have been able to see Mr Assaad and pass on that information to the shooters in the stolen Audi SQ5. Nor did the Crown have any evidence that, at the time of the shooting or prior to the shooting, Mr Hawat had any knowledge of the occupants of the Audi SQ5 being in possession of firearms on the morning of 25 October 2016.
Mr Hawat's ultimate submission was that it was not reasonable to institute these proceedings. There was a lack of evidence of: his participation with others, any communication with others, any agreement with others or any knowledge of any criminal enterprise with the end point being the murder of Hamad Assaad. Mr Hawat relied on Beatson v R [2015] NSWCCA 17 at [19], where the Court of Criminal Appeal observed that where a case relies substantially on circumstantial evidence and was "not going to improve at trial", it may not be reasonable to institute proceedings.
[2]
Crown submissions
The Crown written submissions largely responded to Mr Hawat's written submissions. It was submitted that the jury could have accepted that Mr Hawat was the driver of his white van on Sturt Avenue on the morning of the shooting of the victim. He gave answers to police that suggested that he was "almost exclusively" the driver of that vehicle in his ERISP. The Crown also submitted that it was an available inference that the white van was conducting surveillance in the days before and morning before the shooting.
Furthermore, the Crown submitted that it was a reasonable inference from the route followed by the stolen Audi SQ5 and the white van when leaving the scene of the shooting that there was a degree of co-ordination between them. This meant that there must have been communication between the shooters, the driver of the white van and the drivers of other vehicles conducting surveillance.
In terms of Mr Hawat's state of mind at the time of the shooting, the Crown accepted that in neither in his ERISP nor in any of the surveillance device evidence did he make an admission that he knew that there was a plot to kill Mr Assaad. However, the Crown relied upon the "alibis" provided by Mr Hawat as lies evidencing consciousness of guilt. These alibis did not correspond with the CCTV evidence as Mr Hawat did not stop at the addresses of the individuals that he named. The Crown further submitted that it is not unusual for a jury to be asked to infer the state of mind of an accused from circumstantial evidence.
[3]
Reply submissions
In supplementary submissions filed 31 March 2020, Mr Hawat responded to the Crown submission that there was a degree of co-ordination between this vehicle and the shooters' vehicle by submitting that two vehicles driving on a similar route is not enough to demonstrate co-ordination.
As for evidence of Mr Hawat's state of mind, it was submitted no admissions were recorded by police despite police surveillance for some time. It was submitted that this meant the high point of the Crown case was that Mr Hawat's alibis did not tally with the CCTV footage that police were able to obtain. It was submitted that this was not enough to prove a circumstantial case against Mr Hawat. The defence pointed out that these matters were identified by Mr Hawat's legal representatives and communicated to the Director of Public Prosecutions, but the prosecution was continued nonetheless.
[4]
Consideration
The circumstances in which an accused person who has been acquitted might apply to the Attorney General under the Act to have his or her costs paid was described by Meagher JA as follows in DAO v R (No 3) [2016] NSWCCA 282 at [1]:
"It is a long established common law rule that the Crown neither receives nor pays costs, particularly in criminal proceedings. That position was modified in New South Wales, in respect of criminal proceedings, first by the enactment of s 81 of the Justices Act 1902 (NSW) (now repealed), and later by the enactment of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act): see Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 560. The Costs Act provides for the issue of a certificate "in any proceedings relating to any offence, whether punishable summarily or upon indictment": s 2. The person to whom the certificate has been granted may apply to the Director-General of the Attorney General's Department under s 4 of the Act for payment from the Consolidated Fund of the costs incurred "in the proceedings to which the certificate relates". See the discussion in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [12], [15]."
The relevant principles in relation to an application under ss 2-3 were summarised by Smart AJ in Regina v Groom [2000] NSWCCA 538. His Honour noted that s 3 involves a "hypothetical" enquiry about what the prosecutor would have done at the time of arrest or charge if they had been in possession of all of the evidence that has subsequently emerged during proceedings. His Honour quoted with approval the following from the decision of R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997):
"The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for:
' … a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application' (see Allerton v DPP (1991) 24 NSWLR 550 per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994)'."
The Court's enquiry was described by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] in this way:
"The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process:
(i) an evaluation of all of the evidence as it emerged at trial;
(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted;
(iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings;
where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:
(iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;
and, where such an act or omission is found to exist:
(v) a determination whether that act or omission was, in the circumstances, reasonable."
As Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], the test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious. As was observed in R v John Fejsa (1995) 82 A Crim R 253, there is no "all-embracing definition" of what is "reasonable" and this judgment is best left to the circumstances of the particular case. Despite this, it is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. As McColl JA held in Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121 at [36]:
"Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weaknesses in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by a jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit."
It was common ground between Mr Hawat and the Crown that Mr Hawat bore the onus of establishing on the balance of probabilities that it was not reasonable for the Crown to institute proceedings against Mr Hawat. It was also common ground that a "two-step process" was involved. The first step requires the court to establish the relevant facts at trial. The second step is to determine whether it was reasonable for the Crown to proceed with the prosecution, having regard to all of the relevant facts. The Crown did not suggest that any act or omission of Mr Hawat contributed, or might have contributed, to the institution or continuation of the proceedings.
Applying those principles to the present application, the first step is to determine the relevant facts.
The Crown case was a circumstantial one and, in general terms, relied on three types of evidence. The first category of evidence concerned the movements of a white Toyota Hiace van said to have driven past the deceased's home in the weeks before the shooting. The deceased resided in a suburban street. A number of residents in the street and surrounding area had home security systems and police were able to piece together what were said to be the suspicious movements of certain vehicles.
On 7 October 2016, CCTV footage captured a white Toyota Hiace van bearing "Flow Master" decals being driven west past a residence on Sturt Avenue opposite Mr Assaad's residence. Mr Hawat owned a Toyota Hiace van to carry out his plumbing business. On 4 October 2016, he bought the van from his business partner with whom he operated plumbing business under the business name of "Flow Master". On 10 October, a black Audi also registered to Mr Hawat was observed driving in the area. On 11 October, a white van with pipes on the roof (used by plumbers) drove passed the deceased's home. This van did not have the "Flow Master" decals on it but had a number of similarities with that vehicle. Mr Hawat did not dispute that he took the "Flow Master" decals off the van at this time because he parted ways with his business partner and did not wish to be advertising for his competitor's business. The white van appeared again in the area on 14 October as did the Audi SQ5 eventually used in the murder. Thus, the white van, which on the Crown case was driven by Mr Hawat, was observed in the deceased's suburban street on 11, 14, 18, 22 and 25 October 2016.
On the day of the murder, a white Toyota Hiace van (without decals) travelled past the deceased's residence before being parked on an adjoining road (Surrey Avenue). At around 9:06am, the stolen Audi SQ5, parked north of the deceased's residence. About 9:15am, the white van was driven past the Audi SQ5. It then travelled past the deceased's residence. The van was then parked again on Surrey Avenue. At about 9:20am, the Audi SQ5 travelled towards the deceased's residence and Mr Assaad was murdered. The Audi SQ5 left the scene. Approximately 2-3 minutes later the van left in the same direction.
About 1:50am on 28 October 2016, the stolen Audi SQ5 was driven to Maluga Passive Park, Birrong and set alight by unknown persons. CCTV footage captured three vehicles passing through an intersection very close to the park where the car was set on fire. The first appeared to be a white van. This one had hub caps and not black wheels. The car in the middle appears to be the stolen Audi SQ5. The third was a van with the pipes on the roof.
There was evidence that Mr Hawat had distinctive features of the vehicle removed from the van once he was aware that police were investigating him. On 26 October 2016, the orange flags were removed. Between 26 October and 24 November 2016, the front bull bar was removed. The registration of the vehicle was changed on 16 November 2016. Prior to 22 November, the pipes on the left hand side of the van were removed. The rear step or bull bar was removed at some point between 26 March 2017 and 28 March 2017.
The second type of evidence relied upon by the Crown was the listening device and telephone intercept material. The white van was in fact registered to Mr Hawat's father, Mr Ali Hawat. Investigating police initially spoke to Mr Hawat Snr about the van. At that time there were surveillance device warrants and telephone intercept warrants issued such that several of Mr Hawat's conversations were recorded and played at the trial.
In a conversation with his father after police had spoken to him, Mr Hawat was told that the police were saying "the car" was in the street where the deceased was murdered. Mr Hawat immediately responded that he "had a job" there, without asking the name of the street. Later, Mr Hawat was recorded saying to his wife "I drove in the street but nothing else" as well as, "[f]uck' em. What have they got? They got nothing". On 12 April, a listening device recorded Mr Hawat saying, in the presence of his wife:
"You are driving the van, your son I don't know maybe one of the workers drive it, they don't know anything, they don't know anything. I am looking at that like what day is he talking about and say I will go on was it a week day, yeah, 100 per cent I was there probably around the area. Maybe it's my work car or something like that."
The Crown submitted that this was a rehearsal of what Mr Hawat would say in response to police. On 17 April, a listening device recorded Mr Hawat and his wife discussing a bull bar, in which his wife said "[y]eah, but then they will pick it up and they will investigate it." He said "[n]o, I'll drop it in the grass, no one will even notice it." On 17 May, the same day that police contacted Mr Hawat he was recorded saying to his wife "[i] remember when that phone has messages from October...both these phones." Later in the conversation, he said, "[e]ven if they come and get that laptop...out of here too tomorrow". After this, he said, "[b]ecause if they, they come and search the house...so long as it's not here."
In addition to the CCTV footage of the various vehicles in the street where the deceased lived and the surveillance device material, the Crown also relied upon the explanations by Mr Hawat to police as to why he might have been in the vicinity of Sturt Avenue. In his ERISP he told police that a business acquaintance lived in Sturt Avenue, that his friend resided in Talinga Avenue, and that he visited his father-in-law in Marion Street, Georges Hall. The CCTV footage did not depict the van being at that location nor the van stopping nor anybody getting out of it; that is, Mr Hawat's possible reasons for being in the area were inconsistent with the CCTV footage.
He also made a number of statements about his white van which the Crown relied upon as lies: "I never had that wheel hub missing"; "I never had my wheels missing"; "I don't even have two pipes on my van"; "I don't even have a back step bar"; "I don't even have a front step bar"; "I don't have two pipes on my roof" and "[t]hat's not my van. These alleged lies were contained in answers to questions 344-346, 356, 412 and 413 of the accused's ERISP.
On the Crown case, the jury could have inferred from all of this evidence that either Mr Hawat agreed with the shooters to kill the deceased and participated in that agreement by undertaking surveillance, or, he was aware of the plan by others to kill the deceased and assisted in that murder by undertaking surveillance. The footage of (what was alleged to be) his van circling Mr Assaad's residence prior to the murder and its position on the day of the murder suggested that he knew about the murder and was engaged in offering support to the shooters. The listening device material demonstrated that he then attempted to conceal this from police.
Based on these relevant facts of which I am satisfied, the second step is to consider whether it would be reasonable to prosecute on these facts.
I have had regard to the relevant facts as they are currently known. It is to be accepted that questions of credibility or reliability did not feature largely in the prosecution case. It is also to be accepted that there was no evidence that Mr Hawat knew the shooters. Although all of the intercepted material related to conversations Mr Hawat participated in after the offence, this did not preclude inferences being drawn from those conversations to prove Mr Hawat's knowledge at the time of the shooting.
There were no telephone records of communications between Mr Hawat and anyone else on the morning or the shooting. Despite this, a reasonable inference could be drawn from the route followed by the stolen Audi SQ5 and the white van when leaving the scene of the shooting that there was a degree of co-ordination between them. If this inference was drawn it suggested that there must have been communication between the shooters, the driver of the white van and the drivers of other vehicles conducting surveillance that morning. There was one incidence of Mr Hawat's van being driven by someone else but the evidence was consistent with him being the driver, especially when considered in the context of his recorded admission that "I drove by".
As for Mr Hawat's submission that the Crown had "clearly hoped" that this knowledge would emerge in the evidence provided by the NSW Crime Commission, the potential for there to be such material only arose shortly before the trial. That timing does not support such a submission.
This was a circumstantial case. Although there was no direct evidence that the driver of the van was monitoring Mr Assaad's movements or communicating with those believed to be involved in the shooting, that evidence had to be viewed in the context of the case as a whole, including the intercepts and other evidence I have already referred to. As was submitted by the Crown, it is not unusual for a jury to be asked to infer the state of mind of an accused from circumstantial evidence.
It could not be said that this was a strong Crown case. It was not. But that is not the relevant test. I am not satisfied that had the Crown been in possession of these relevant facts before the proceedings were instituted, it would have been unreasonable to institute the proceedings.
For these reasons I would refuse the application.
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Decision last updated: 12 May 2020
Mr Hawat stood trial on an indictment charging him with murder on alternative bases: that he participated in a joint criminal enterprise to murder the accused or, alternatively, that he was an accessory before the fact to the murder.
I have summarised the Crown detail in some detail in R v Hawat (No 1) [2019] NSWSC 1583 at [1]-[24]. This judgment assumes some familiarity with that decision and the interlocutory judgments to which I will refer below.
Briefly, Mr Assaad was murdered at around 9:20am on 25 October 2016. He was in the driver's seat of a vehicle parked in his driveway of 51 Sturt Avenue, Georges Hall. Mr Assaad was killed when two unidentified men wearing balaclavas drove onto the driveway in a stolen Audi SQ5 and fired 22 rounds at him. The case against Mr Hawat was not that he was one of the shooters. Rather, he was alleged to have taken part in surveillance before the shooting of Mr Assaad. I shall consider the evidence to support the Crown case against Mr Hawat in more detail in my consideration below.
Rulings made during the trial
A number of evidentiary rulings were made during the trial.
R v Hawat (No 1) concerned an application for a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) for disclosure of evidence obtained by the Crime Commission in relation to the shooting of Mr Assaad. The Crown submitted that the evidence (which it had not had access to) connected or potentially connected Mr Hawat to individuals that had stolen a vehicle used in the murder. Public interest immunity issues arose in that application. On 14 November 2019, I ruled that the probative value of the evidence was low and that the relevant discretionary factors weighed against disclosure.
In R v Hawat (No 2) [2019] NSWSC 1699, I considered the admissibility of three transcripts of telecommunications intercepts and listening device recordings. On 2 December 2019, I ruled the material contained in both transcripts labelled LD 6 and LD 8 was admissible.
In R v Hawat (No 3) [2019] NSWSC 1701, I ruled on the admissibility of the transcript labelled LD 14. It was the recording of a conversation between Mr Hawat and his wife that took place in a room in the Bankstown police station after Mr Hawat had participated in an ERISP. Mr Hawat alleged that the evidence was improperly obtained and should be excluded under s 138(1)(a) of the Evidence Act 1995 (NSW). Exclusion was also sought under s 90 of the Evidence Act. On 28 November 2019, I held that LD 14 was not obtained by police in unfair derogation of his right not to speak to police nor was there any impropriety in the way that the recording was made. The evidence was therefore admissible.
In R v Hawat (No 4) [2019] NSWSC 1726, I ruled on the admissibility of several answers that Mr Hawat gave in an ERISP he participated in on 29 June 2017. The Crown relied on these answers, all of which pertained to photographs of a white van, as lies which evidenced a consciousness of guilt. Mr Hawat objected to them on the basis of relevance and the risk of unfair prejudice. I ruled that the answers were admissible.
On the same day, I heard argument in relation to the quality of several recordings of listening device material and telecommunications intercepts relied upon by the Crown. The Crown admitted that the recordings were of "very poor quality". Mr Hawat's counsel then applied for the exclusion of LDs 1, 2, 4, 5 and 6 (out of 14 recordings) on the basis that it was impossible to discern the words being spoken on them without the transcripts that had been prepared by police. In R v Hawat (No 5) [2019] NSWSC 1727, I indicated that these recordings were relevant according to the requirements of s 55 and s 56 of the Evidence Act. However, on the question of whether the recordings could be admitted with the police transcripts, I was not satisfied that the transcripts met the definition of lay evidence outlined in s 78 of the Evidence Act.
In R v Hawat (No 5) I also observed that even if such evidence could be admissible as ad hoc expert evidence under s 79, it created such a risk of unfair prejudice that it ought to be excluded under s 137. This was because the jurors would not be able to discern for themselves the words that were being spoken in the recording and would have to rely solely on the police transcripts. This created a real danger of unfair prejudice as neither Mr Hawat nor the jury had any means of testing the reliability of this police evidence. Subsequently, after listening to these recordings several times on the voir dire, I ruled that that LDs 4 and 5 were inadmissible as so little could be heard on them. Portions of LDs 1, 2 and 6 were admissible and put before the jury with the corresponding portions of the police transcript.