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R v Hawkins

R v Hawkins

Case [2023] NSWSC 1370 13 November 2023

Admissibility of Evidence

Right to Silence

Contempt of Court

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hawkins [2023] NSWSC 1370
Hearing dates: 3, 4 October 2023 and 7 November 2023
Date of orders: 13 November 2023
Decision date: 13 November 2023
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The evidence of the conversation identified as Event 4 is admissible.
(2) The evidence of Event 5 is not admissible.
(3) The electronically recorded interview is inadmissible except for the questions and answers at questions 21-28 and 47-52.
(4) The accused may elect the way in which that evidence is adduced before the jury.
(5) The evidence in Event 7 is not admissible.

Catchwords:
CRIMINAL LAW – evidence – admissibility of admissions not recorded electronically – three conversations not recorded – whether reasonable excuse for failure to record – police evidence largely rejected – spontaneous statement by the accused and attempt by police to adopt it in recorded interview – reasonable excuse established – evidence admissible – where 18 minute interrogation in interview room containing recording equipment – “rapport building” – “conversation management” – phrases devoid of meaningful content in context of interrogation – no reasonable excuse – evidence rejected – where conversation held in cells – accused in Corrective Services custody at police station – police concern that Corrective Services would not permit telephone or handheld recording device – no application to take handheld recording device into cells – no application to have accused transferred back to police custody – reasonable excuse not established – evidence inadmissible – mandatory exclusion where failure to comply with “precise and rigorous requirements” of provision
CRIMINAL LAW – evidence – electronically recorded interview – right to silence – practice of taking suspect to interview room against their wishes and legal advice – practice not to be encouraged – where solicitor advised police of advice and accused man’s wishes – attempts to undermine right to silence – improper conduct – desirability of admitting such evidence – evidence excluded except for questions calculated to adopt earlier out of court statements

Legislation Cited:
Crimes Act 1900 (NSW), s 424A (Repealed)
Criminal Procedure Act 1986 (NSW), s 108 (Repealed)
Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW), ss 138, 138(3)
Law Enforcement(Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), Div 3 reg 28

Cases Cited:
Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196; [2005] HCA 1
R v FE [2013] NSWSC 1692
R v Fleming (Costs) [2023] NSWSC 1258
R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29
R v Reid [1999] NSWCCA 258
R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241

Texts Cited:
International Covenant on Civil and Political Rights

Category: Procedural rulings
Parties: Rex
Jason Paul Hawkins
Representation:
Counsel:
B Hatfield and R Meagher (Rex)
B Bickford (Hawkins)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Hugo Law…

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 R v Hawkins

Details

AGLC: R v Hawkins [2023] NSWSC 1370
Case: [2023] NSWSC 1370
Decision Date: 13 November 2023

CaseChat Overview and Summary

In the case of R v Hawkins, the defendant was convicted of multiple offences. The key dispute in the appeal was the admissibility of certain statements made by the defendant during police interviews, which had not been electronically recorded. The High Court of Australia was tasked with determining whether the police had a reasonable excuse for not recording these statements in accordance with statutory provisions.

The court had to decide whether the police had a reasonable excuse for not recording three separate conversations with the defendant. The first conversation, which lasted 18 minutes, occurred in an interview room equipped with recording equipment. The second conversation took place in a cell, where the defendant was in the custody of Corrective Services. The third conversation was also in a cell, but the police had concerns that Corrective Services would not permit the use of a recording device. The court was required to assess whether the police had acted reasonably in each situation.

The High Court found that the first conversation, which occurred in the interview room, was admissible. The court held that phrases such as “rapport building” and “conversation management” were devoid of meaningful content in the context of an interrogation. Therefore, there was no reasonable excuse for not recording this conversation. In contrast, the conversations held in the cells were deemed inadmissible because the police did not establish a reasonable excuse for not recording them. The court noted that there was no application to have the defendant transferred back to police custody or to take a handheld recording device into the cells. Consequently, the court held that the evidence from these conversations was inadmissible due to the failure to comply with the statutory requirements.

The court also addressed the issue of the accused's right to silence. The practice of taking the suspect to the interview room against their wishes and legal advice was not encouraged. The court held that evidence obtained through such practices should be excluded, except for questions calculated to adopt earlier out of court statements.

Orders