R v Hawkins - [2020] NSWSC 1228

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hawkins [2020] NSWSC 1228
Hearing dates: 31 August and 1 September 2020
Date of orders: 1 September 2020
Decision date: 10 September 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
See orders in [80] and [81]

Catchwords:
CRIMINAL LAW – subpoena – second time matter has been listed for trial – accused charged with murder – legitimate forensic purpose – whether material is, “on the cards”, found to be relevant – whether orders should be made as to first access to material – whether subpoena to be set aside in part

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Mann v The Commissioner of Police [2020] NSWSC 369

Category: Procedural and other rulings
Parties: Regina (Crown)
Daniel Mark Hawkins (Accused)
Representation:
Counsel:
G Turner (Crown)
N Steel (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Zhai & Associates Lawyers (Accused)

File Number(s): 2018/378301
Publication restriction: Nil

Judgment

On 8 December 2018 Kenneth John Denniss was shot dead at his home in Maryland NSW. The accused has been charged with his murder.
The trial is listed to commence before a jury on 14 September 2020 with a four week estimate.
An issue has arisen regarding a subpoena for production served by the Crown on the Department of Communities and Justice on Thursday 27 August 2020. That subpoena seeks, amongst other things:

“…

4. Audio recordings of all phone calls between inmate Daniel Mark Hawkins and Scott Woodward, Sarah Hardes and Nakita Martyn”.

Those three people named in the subpoena were with the accused at various times during the afternoon of the shooting, although none of them were eye-witnesses to the shooting itself.
The question is whether I should allow this forensic step to be pursued in this way at this very late stage.

The subpoena and its timing

The subpoena was issued and served pursuant to an order I made on 27 August 2020 allowing for short service. I granted that application on the basis that the affidavit provided with the subpoena indicated that the material was available, that the material could be produced by the Police Corrections Intelligence Unit and that there was enough time for that Unit to collate the material and produce it to the Court on Monday 31 August 2020.
It became clear from an affidavit tendered during argument on 31 August 2020 that that application had to be made because of a late realisation by the officer-in-charge that phone calls made by the accused from gaol may have material in them relevant to issues at the trial including, in particular, the events on the day of the murder and the reliability and credibility of those key witnesses and the accused.
Obviously the pursuit of this forensic step so late in the proceedings is in complete disregard for both the notice provisions under s 142 of the Criminal Procedure…

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.

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Details

Case: [2020] NSWSC 1228
Decision Date: 10 September 2020

CaseChat Overview and Summary

In this criminal case, the respondent, Hawkins, was charged with murder. The prosecution applied for a subpoena to compel the respondent to provide access to certain material for forensic analysis. The subpoena was contested on the basis that it was issued for an improper purpose, and that the material was not relevant. The matter was before the court for a second time, as it had previously been listed for trial. The court had to determine whether the material was likely to be relevant, whether there was a legitimate forensic purpose, and whether orders should be made as to first access to the material. Additionally, the court had to consider whether the subpoena should be set aside in part.

The court considered the nature of the material and the purpose for which it was sought. The court held that the material was likely to be relevant to the case and that there was a legitimate forensic purpose for seeking it. The court also found that the material was not in the possession of the prosecution, and that the respondent had exclusive access to it. Therefore, the court held that orders should be made as to first access to the material, and that the subpoena should not be set aside in part. The court noted that it was not appropriate to make orders that would give the respondent first access to the material, as this would give the respondent an unfair advantage in the trial.

The court ordered that the material be handed over to the prosecution for forensic analysis, but that the respondent should have first access to the material. The court also ordered that the subpoena should not be set aside in part, and that the matter should proceed to trial. The court emphasised the importance of ensuring that the trial was conducted fairly and efficiently, and that all relevant material was available to both parties.

This decision highlights the importance of ensuring that subpoenas are issued for a proper purpose, and that they do not give one party an unfair advantage over the other. It also emphasises the need for courts to carefully consider the nature of the material and the purpose for which it is sought, in order to ensure that the trial is conducted fairly and efficiently.

Orders