Hawkins v The Queen - [1991] TASSC 108

105/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Hawkins v R [1991] TASSC 108; A105/1991

PARTIES:  HAWKINS, Andrew John
  v
  R

FILE NO/S:  CCA 82/1991
DELIVERED ON:  19 December 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Underwood and Zeeman JJ

Judgment Number: A105/1991
Number of paragraphs: 24

Serial No 105/1991
List "A"
File No CCA 82/1991

ANDREW JOHN HAWKINS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
UNDERWOOD J
ZEEMAN J
19 December 1991

Orders of the Court

Appeal allowed.

Conviction quashed.

New trial orders.

Serial No 105/1991
List "A"
File No CCA 82/1991

ANDREW JOHN HAWKINS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

GREEN CJ
19 December 1991

For the reasons given by Zeeman J I am of the opinion that the appeal should be allowed, the conviction quashed and a new trial ordered. I also agree that there is no need to consider ground 2.
File No CCA 82/1991

ANDREW JOHN HAWKINS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
19 December 1991

I have read the reasons for judgment of Zeeman J with respect to ground 1. I agree with them and have nothing to add.

Ground 2 is an appeal against the learned trial judge's refusal to exercise his discretion in favour of the appellant to exclude evidence of admissions made by him on oath at his first trial. The ground complains about the admission into evidence of "the transcript of the appellant's evidence given at his first trial." The trial judge held admissible evidence of admissions made by the appellant on oath at his first trial. He made no ruling and was not asked to rule with respect to the manner in which proof of those admissions could be given. The transcript was admitted as an exhibit as a result of agreement between counsel and an admission made by the appellant.

At his first trial, the appellant took the unusual course of making an unsworn statement and giving evidence on oath; see R v Burles [1956] Tas SR 256. At the second trial, the Crown proposed to lead evidence of admissions made by the appellant in his unsworn statement and during his evidence on oath on his first trial. His counsel objected. The learned trial judge ruled that such evidence was admissible in law. Quite properly, no complaint is now made about that ruling. See Stewart v The King (1921) 29 CLR; R v Lang [1965] NSWR 1313; Wong Kam–Ming v The Queen [1980] AC 247; R v Mills [1986] VR 617. In the absence of the jury, the learned trial judge carefully examined almost 150 pages of transcript of the evidence given by the appellant on his first trial and ruled inadmissible those parts of that evidence that did not qualify as admissions made with respect to the issues then between the appellant and the Crown. At the conclusion of his ruling, the learned trial judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hawkins v The Queen

Details

AGLC: Hawkins v The Queen [1991] TASSC 108
Case: [1991] TASSC 108
Decision Date: 19 December 1991

CaseChat Overview and Summary

In the case of Hawkins v The Queen, the appellant, Andrew John Hawkins, appealed against his conviction for murder. The Supreme Court of Tasmania's Court of Criminal Appeal considered two grounds of appeal. The first ground contested the trial judge's ruling that evidence of the appellant's mental state at the time of the offence was inadmissible. The second ground argued that the trial judge erred in admitting evidence of the appellant's prior unsworn statement and testimony from his first trial.

The court found that the trial judge erred in ruling the proposed evidence of Professor Jones inadmissible. The judge had made the ruling without knowing the content of the proposed evidence and had ruled on the basis that the evidence was not relevant to proving the appellant's specific intent. The court held that the evidence was admissible as it went to a relevant issue, and the appellant was deprived of having the relevance of the evidence determined by the Court.

As a result of this error, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial. The second ground of appeal was not considered necessary to address, as the first ground was sufficient to warrant a new trial.

Orders