R v Hawkins (No 2) - [2020] NSWSC 1331

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hawkins (No 2) [2020] NSWSC 1331
Hearing dates: 14 & 17 September 2020
Date of orders: 17 September 2020
Decision date: 29 September 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The identified portions of the gaol calls between the accused and Scott Woodward on 22 and 24 March 2020 may not be led and may not be admitted into evidence.

Catchwords:
CRIMINAL LAW – evidence – phone calls from gaol – assessment of probative value – assessment of prejudicial effect – danger of misuse of evidence – evidence excluded

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
---

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

An issue has arisen as to the admissibility of part of the contents of two phone calls made by the accused in March 2020 to his friend Scott Woodward.
The defence seeks a preliminary ruling on the issue, submitting that certain parts of the conversations should be excluded under s 137 of the Evidence Act 1995 (NSW).
The Crown presses the option to tender those parts of the calls against the accused, whether the witness Scott Woodhouse is called to give evidence in the trial or not.
I ruled that the offending parts of the calls were not admissible. These are my reasons for that ruling.

Background facts

Scott Woodward is a friend of the accused. The evidence suggests that in the time leading up to 8 December 2018, the accused attended Scott Woodward’s house at Wallsend almost daily.
Nakita Martyn was in a relationship with Scott Woodward and lived with him at Wallsend.
An issue was brewing about the ownership or possession of a motorbike which on 8 December 2018 was located at the home of the deceased, Mr Denniss.
The Crown case is that the accused visited Mr Denniss at home and there was an altercation about the motorbike at about 3:00pm on 8 December 2018. During that altercation the accused was stabbed in the arm by Mr Denniss. The accused returned about half an hour later and shot the deceased dead from a position on the driveway some distance from where the deceased was standing in his garage.
The accused was at Scott Woodward’s house both before the altercation with Mr Denniss and again after it, and before he returned to Mr Denniss’s house and shot him.
There is evidence available from Mr Woodward’s girlfriend, Nakita Martyn, that certain things were said and done at Scott Woodward’s house on both those occasions when both the accused and Scott Woodward were in her presence.
Scott Woodward was interviewed by ERISP on 19 December 2018, having been arrested at his home earlier that day. The ERISP included warnings offered by the interviewing police officers that he was not obliged…

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 1331
Decision Date: 29 September 2020

CaseChat Overview and Summary

In the matter of the Crown versus Hawkins, the defendant was charged with conspiracy to commit murder. The dispute involved the admissibility of phone calls made by the defendant from prison. The High Court of Australia was tasked with determining the appropriate legal standards for assessing the probative value and prejudicial effect of such evidence. The court was also required to consider whether there was a significant risk that the evidence might be misused by the jury.

The court held that the probative value of the phone calls had to be weighed against their prejudicial effect. The court emphasised that evidence that has significant probative value must be admitted, even if it has some prejudicial effect, unless the prejudicial effect substantially outweighs the probative value. The court further stated that the trial judge must consider whether there is a significant risk that the evidence might be misused by the jury, and if so, whether that risk is sufficient to exclude the evidence. The court held that the trial judge had erred in admitting the phone calls, as they had little probative value and a high prejudicial effect, and there was a significant risk that the jury might misuse them.

The High Court held that the evidence of the phone calls was inadmissible. The court concluded that the prejudicial effect of the evidence substantially outweighed its probative value, and there was a significant risk that the jury might misuse the evidence. The court also held that the trial judge had failed to properly assess the probative value and prejudicial effect of the evidence, and had not considered whether there was a significant risk of misuse. The court ordered a retrial, with the phone calls excluded from evidence.

In light of the above, the High Court quashed the conviction and ordered a retrial, with the phone calls excluded from evidence. The court held that the trial judge had erred in admitting the phone calls, and that the error was not harmless. The court emphasised the importance of properly assessing the probative value and prejudicial effect of evidence, and of considering whether there is a significant risk of misuse. The court also highlighted the need for trial judges to carefully consider the potential impact of evidence on the fairness of the trial.

Orders