R v Hawi & ors

Submissions 9Mr Dunn QC objected to the evidence of Ms Brown saying that the man she had seen wielding a bollard was the accused Hawi. He questioned the probative value of the evidence and submitted that whatever that may be, it was outweighed by the danger of unfair prejudice. If that is so, there is no discretion. The evidence must be excluded: s 137 Evidence Act 1995. 10It was submitted that the man she described cannot be Mr Hawi. Mr Hawi was wearing a white t-shirt and white trousers and the description of Mr Brown was inconsistent with that. Further, her estimation of the height of the man was submitted to be 30 centimetres taller than Mr Hawi (in fact,19 centimetres). As such, it was submitted that the evidence lacks any real probative value. 11Mr Dunn submitted that the potential prejudice is very high. He contended that it would be necessary to ask Ms Brown to explain why she now purported to be able to say that the man wielding the bollard was Mr Hawi. That would involve her talking about her being frightened; having read about bikies, bike wars, shootings and things like that; task forces being set up; statements being made by the Premier about getting tough on bikies; helicopters flying over Mr Hawi's house. Such matters, so it was submitted, would create "real and active prejudice". 12Mr Gordon, on behalf of the accused Kisacanin, joined in the submissions made by Mr Dunn upon the basis of an assertion that the prejudice "overflows to everybody else". 13The Crown Prosecutor reminded me of authorities such as R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 and R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 in reliance upon a submission that in considering the probative value of the evidence it is not for me to determine its reliability or the witness' credibility. Simpson J put the proposition succinctly in Mundine : [33] Although some contrary views have been expressed (see, for example Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, per McHugh J; R v Rahme [2004] NSWCCA 233, per Hulme J (dissenting), the prevailing wisdom is that it is not open to a trial judge, in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [47]-[65], per Spigelman CJ; and see Adam v The Queen [2001] HCA 57; 207 CLR 96, per Gaudron J. That is, "probative value" is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted , would play in the resolution of a (disputed) fact - or the contribution it might, if accepted , make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete. 14Her Honour added, in Dao v R [2011] NSWCCA 63 at [182], that the task of a trial judge in considering an objection to the admissibility of evidence based upon s 137 is not to predict the likelihood that a jury would accept the evidence. 15It was submitted by the Crown Prosecutor that the probative value of the evidence was "high". The qualification to the description of the shirt worn by the bollard wielding man that Ms Brown made in her committal evidence, that is, that the "yellow shirt" (per her statement) was "pale yellow" was significant in that it comes closest to the white top that Mr Hawi was undoubtedly wearing, and is in contrast to the dark coloured clothing that most of the others were wearing. 16The Crown case is that Mr Hawi was a person who was wielding a bollard and striking the deceased. The Crown case is that the accused Menzies did likewise. The Crown Prosecutor acknowledged that the description given by Ms Brown in her statement and her committal evidence was also consistent, perhaps, with Mr Menzies. Mr Menzies is 6'3" tall and has a tattoo on his right arm which goes down to his wrist and on to his hand. However, he was wearing a predominantly dark t-shirt and light coloured trousers. 17As I understood the submission, the Crown may go to the jury in respect of Ms Brown's evidence on the basis that he was one of the two men who it alleges struck the deceased with a bollard, but submit that the description she gave in her statement, and her committal evidence, was one man, and that the person she identified from the television as being Mr Hawi was the other person. 18The Crown Prosecutor submitted that there was no unfair prejudice in that there was no danger that the jury might misuse the evidence. She referred to the evidence given by Ms Brown on the voir dire, in chief, that the reasons for which she had withheld her identification of Mr Hawi was that she did not want to be involved in identifying anyone in a line-up; she was afraid of repercussions; and her husband told her that it would be foolish to say anything. The references to bikie wars and the like were all things that she agreed to in response to leading questions put to her by Mr Dunn. So, it was submitted, such material would not be before the jury if Mr Dunn does not again put them to her. That, of course, depends upon the witness not volunteering such matters, they having been brought to the forefront of her thinking by Mr Dunn's questioning.

Consideration 19The standout features of the description given by Ms Brown of the one man she said that she saw wielding a bollard in the direction of the deceased are the height of 6'5" (inconsistent with Mr Hawi), dark trousers (inconsistent with Mr Hawi) and a pale yellow shirt (more consistent with the white shirt Mr Hawi wore than the shirts worn by others of a similar height). "Dark short shaved hair" is more consistent with Mr Menzies than Mr Hawi. Tattoos on the right arm going down to the wrist, are also more consistent with Mr Menzies than Mr Hawi. 20The Crown accepts that it is a possibility, I would think a high likelihood, that the description will be accepted as being consistent with Mr Menzies far more so than being consistent with Mr Hawi. The height is the key feature. A person who is 6'3" (as Mr Menzies is) is a person who stands out. A person who is 5'10" (as Mr Hawi is) is not nearly so notable as to their height. 21The alternative proposition the Crown anticipated putting to the jury, that is that Ms Brown had given a description of one of the two persons it contends struck the deceased with a bollard, but then identified the other person from having seen his face on the television, is, in my respectful view, of dubious validity. 22If Ms Brown has subliminally transposed an image of somebody else that she saw during the incident upon the person that she described, it does not necessarily follow that this person was the second person that the Crown contends struck the deceased with a bollard. It could equally be some other person that she saw in the area. Ms Brown said that she saw 8 to 10 men involved in the general fighting. There is no dispute that Mr Hawi was present. I cannot imagine how the jury could, legitimately, place any weight at all on a submission that she was wrong in saying that Mr Hawi was the person she described as striking the deceased with a bollard but nevertheless conclude that he was the second person, as opposed to one of the other people involved in the incident. 23This is not a case of second guessing the jury, trying to anticipate the weight that it might assign to the evidence. I accept that the descriptions given by witnesses of the men involved in events which happened very quickly and unexpectedly, in very chaotic circumstances, vary widely as to their reliability. However, if the jury is to proceed upon a logical analysis of the evidence, as it must be assumed that it will, I am unable to see how it could ignore the striking aspects of the description given by Ms Brown of the one man that she saw wielding a bollard and accept her claim that the man is Mr Hawi. In my view, the evidence has minimal probative value, particularly when it is considered that there is no dispute that Mr Hawi was in the general vicinity of the events which occurred. If the jury were to consider that Ms Brown had provided a description of one man who was wielding a bollard in an assault upon the deceased, and regard the person who she identified as Mr Hawi as being a another person who the Crown alleges was similarly involved in that assault, that would be to give the evidence a weight that it simply does not deserve. That is a misuse of the evidence that amounts to an unfair prejudice that, in my view, outweighs its probative value. 24As to the submissions concerning prejudice that were made by Mr Dunn, in my view there are ways of cross-examining the witness that could serve to reduce, or eliminate, the reliability with which the jury would regard the evidence without introducing all of the prejudicial elements that he identified. I am not persuaded that there is unfair prejudice for the reasons he advanced. I am persuaded that there is a danger of unfair prejudice for the reasons I have otherwise identified. 25The proposed evidence by Mr Brown that the person she described as striking the deceased with a bollard was the accused Mahmoud Hawi is inadmissible.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2012