R v Hawi & ors

Judgment 1HIS HONOUR: This judgment relates to an issue that was first ventilated on 8 August 2011 (T3392-3396); again on 9 August (T3398-3401); and finally on 10 August (T3519-3529). At the conclusion of submissions on the latter occasion I gave brief reasons for ruling that the evidence that is the subject of the issue was not admissible. I have amplified my reasoning in this revised judgment. 2Mr Trevallion, on behalf of the accused Abounader, adduced in evidence in the course of the cross-examination of Detective Spelling a previous representation made by Mr Abounader upon his arrest on 3 July 2009 (T3238). The Crown did not lead much evidence as to the circumstances pertaining to that arrest as it was mindful of the potential for prejudice (for example, Mr Abounader was arrested at gunpoint). However, in cross-examination Mr Trevallion had Detective Spelling confirm that Mr Abounader was arrested while driving his car; that he was asked to get out of the car; that when he got out of the car he was placed under arrest; and that he said words to the effect of, "Do you think I'm a murderer or Ivan Milat?". The detective agreed to those propositions put by Mr Trevallion. 3Mr Trevallion then had the detective confirm that Mr Abounader was informed as to his right of silence and that Mr Abounader responded, "I have nothing to say to you. I didn't do anything, just do what you have to do" . (Evidence that was not before the jury but is available to be led that this response followed Mr Abounader having been informed he was under arrest for a charge of riot). 4That being evidence of a previous representation made by Mr Abounader, Mr Trevallion now seeks to have admitted certain credibility evidence about the maker of that representation. Reliance was placed upon s 108A of the Evidence Act 1995 which is in the following terms: 108A Admissibility of evidence of credibility of person who has made a previous representation (1) If: (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. 5There are a number of components of the provision to be noted. It is the case, as I have observed above, that "evidence of a previous representation has been admitted". It is certainly the case that Mr Abounader "has not been called" and Mr Trevallion informed me that he "will not be called", to give evidence. 6The section authorises, in the circumstances described, the admission of "credibility evidence about" Mr Abounader. "Credibility evidence" is concerned with evidence which is "relevant to the credibility of" Mr Abounader: Evidence Act , s 101A . "Credibility of a person who has made a representation that has been admitted in evidence" is defined in Pt 1 of the Dictionary as meaning "the credibility of the representation". Having regard to these provisions, the evidence that is now sought to be adduced must be relevant to the credibility of Mr Abounader's statements to Detective Spelling on 3 July 2009 that he "didn't do anything" and, in effect, that he was not a murderer. 7Finally, and most importantly, it should be noted that the evidence is not admissible "unless [it] could substantially affect the assessment of [Mr Abounader's] credibility". 8Putting the last two matters together, the evidence must be relevant to the credibility of the statements made on 3 July 2009 and must be capable of substantially affecting the assessment of Mr Abounader's credibility. 9There are two matters mentioned in s 108A(2) that a court must have regard to. No submissions were made in respect of either of them. They do not appear to be of any present significance so they may be put to one side. 10The evidence that is sought to be adduced is as follows. A Detective Heagney is shortly to be called. He had some involvement, apparently, in relation to some intercepted telephone conversations recorded by the New South Wales Crime Commission. That interception operation had nothing to do with the investigation into the events at the airport on 22 March 2009 with which this trial is concerned. 11There was a telephone conversation recorded on 23 March 2009 which commenced at 6:49:38pm, which primarily involved discussion between Mr Abounader and an unknown male. In the course of that discussion, Mr Abounader said, "Ah, nothing man, they can't do nothing it's self-defence man" . The unknown male responded, "Defence" . Mr Abounader responded, "Self-defence" . Mr Trevallion indicated that he proposed to simply lead evidence from Detective Heagney that this passage appears in that intercepted telephone conversation. It is not intended to adduce any other portion of the conversation. I note that the passage comprises three lines in a seven page transcript. 12Mr Trevallion made reference to Regina v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84 in which Grove J gave consideration to the Crown adducing evidence of prior exculpatory statements made by an accused. I need not refer to the detail of that judgment, but it is notable that there is reference there to it being regarded as a long held practice adopted by the Crown, usually, but not only, applied in circumstances where exculpatory statements are made when an accused is confronted with an allegation by a police officer. Note was taken of the possibility of an accused bringing forward a "contrived 'hearsay case'" (at [58]). Reference was also made (at [62]) to the fact that in the modern era, video recording of police questioning enables a jury to assess the credibility of a prior representation made to police officers. 13In any consideration of Regina v Rymer , regard must be had to subsequent changes in the statutory landscape. It has been observed in Stephen Odgers, Uniform Evidence Law, 9 th ed (2010) Lawbook Co at [1.3.7618] that "since the amendments to the [ Evidence Act ] following on ALRC 102 have effectively reversed [ Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96], Rymer can no longer be regarded as good law". There is no need for present purposes to explore the detail of the amendments referred to. 14The present question is really whether the statements within the short extract of the intercepted telephone conversation that Mr Trevallion relies upon could substantially affect the assessment of Mr Abounader's credibility in terms of the responses he made to Detective Spelling upon arrest. Those responses, taking a rather broad view of them, could be regarded as a denial of an allegation that he was criminally responsible in respect of a riot at the airport on 22 March 2009. Taking an even broader view, they could be regarded as a denial of criminal responsibility for the death of the deceased. 15A statement that was recorded, unbeknown to Mr Abounader, that "it was self defence" could be regarded as a prior consistent statement which could affect the assessment of the credibility of Mr Abounader and the statements he made to Detective Spelling just over three months later. But to view it in that way would be to take a very limited view and to ignore reality. 16The Crown has referred me to the entirety of the conversation to which Mr Trevallion has referred. My attention has also been invited to an intercepted telephone conversation which immediately preceded it. 17At 6:37:34pm on 23 March 2009 there was a telephone call which, in part, involved conversation between Tiago Costa and Mr Abounader. (Mr Costa was a fellow member of the Comanchero who has pleaded guilty and been sentenced for his involvement in the events at the airport). It includes some discussion concerning the events at the airport the previous day. From the content of the conversation, and particularly from the tone of that conversation, it appears that a rather light-hearted view of the incident was taken by Mr Abounader. There is a significant level of bravado apparent. That seems to continue in the conversation that almost immediately follows with the unknown male which commenced at 6:49:38pm. A lot of the latter conversation is in Arabic, but even with the limitations that imposes, there is sufficient in the recording to make the tone of the conversation apparent and there is sufficient English within the conversation that aids that assessment. 18In my view, looking at the two conversations together, it is very clear that the tone adopted by Mr Abounader is one which makes it very likely that the short passage in which he refers to "self-defence" is not a serious and genuine assertion. It is highly unlikely to be regarded as such by the jury. I acknowledge that it is a matter for the jury whether the evidence does substantially affect the assessment of a person's credibility. The question for me is whether this evidence could affect that assessment. 19While the passage relied upon by Mr Trevallion, on its own, divorced from its context, might affect the assessment of Mr Abounader's credibility and the credibility of the assertions made upon his arrest on 3 July 2009, I am not persuaded that it could substantially affect that assessment. Further, however, I am of the view that it would be positively misleading to place that passage before the jury divorced from its context. When seen in the light of the context, I am even more convinced that it could not substantially affect the assessment of Mr Abounder's credibility. Indeed, there is a potential that it would more likely reflect adversely upon Mr Abounader. 20For these reasons, the evidence is not admissible.