R v Hawat (No 3) [2019] NSWSC 1701

R v Hawat (No 3) [2019] NSWSC 1701

The recording was made under a lawful warrant; the accused was not secretly recorded speaking to police but voluntarily chose to speak to his wife; no breach of internal guidelines, misstatement of fact, inducement, or persistence in questioning after refusal was shown; and the police use of prior knowledge of the relationship dynamic and placement of devices was a proper investigative technique. Accordingly, the evidence was not improperly obtained under s 138 and was not obtained in unfair derogation of the accused's free choice to speak or remain silent under s 90.

Jurisdiction
Australia
Judgment Date
09 December 2019
Procedural Posture
Criminal Prosecution for Murder / Pre Trial Voir Dire Ruling on Admissibility of Listening Device Evidence
Outcome
The recording of the accused and his wife at Bankstown police station is admissible.
Legal Topics
['murder' 'joint Criminal Enterprise' 'accessory Before the Fact' 'listening Device Material' 'admissions' 'discretion to Exclude Admissions' 'improperly or Illegally Obtained Evidence' 'unfairness to the Accused']
['criminal Law' 'evidence'] ['murder' 'joint Criminal Enterprise' 'accessory Before the Fact' 'listening Device Material' 'admissions' 'discretion to Exclude Admissions' 'improperly or Illegally Obtained Evidence' 'unfairness to the Accused']

Case Brief

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Procedural Posture

Criminal Prosecution for Murder / Pre Trial Voir Dire Ruling on Admissibility of Listening Device Evidence

Legal Issues

  1. 1 ['Whether the recording of the accused and his wife at Bankstown police station was improperly obtained and should be excluded under s 138 of the Evidence Act 1995 (NSW).' 'Whether, having regard to the circumstances in which the alleged admissions were made, it would be unfair to admit the recordings under s 90 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The recording was made under a lawful warrant; the accused was not secretly recorded speaking to police but voluntarily chose to speak to his wife; no breach of internal guidelines, misstatement of fact, inducement, or persistence in questioning after refusal was shown; and the police use of prior knowledge of the relationship dynamic and placement of devices was a proper investigative technique. Accordingly, the evidence was not improperly obtained under s 138 and was not obtained in unfair derogation of the accused's free choice to speak or remain silent under s 90.

Court Disposition

The recording of the accused and his wife at Bankstown police station is admissible.

Orders

  • ['The recording at Bankstown police station on 29 June 2017 was admissible.']