R v Hawkins (No 3)
[2020] NSWSC 1339
•18 September 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Hawkins (No 3) [2020] NSWSC 1339 Hearing dates: 18 September 2020 Date of orders: 18 September 2020 Decision date: 18 September 2020 Jurisdiction: Common Law Before: Lonergan J Decision: The Crown application for Taylah Lethbridge to have a support person present in the AVL suite whilst she gives evidence is refused.
Catchwords: CRIMINAL PROCEDURE — trial — witnesses — examination of witness — application for witness to have a support person present whilst giving evidence — eyewitness to alleged offence — witness nervous about giving evidence — no medical evidence available — witness does not fall into category prescribed by the Criminal Procedure Act 1986 (NSW) — application refused
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Category: Procedural and other rulings Parties: Regina (Crown)
Daniel Mark Hawkins (Accused)Representation: Counsel:
Solicitors:
G Turner (Crown)
N Steel (Accused)
Director of Public Prosecutions (NSW) (Crown)
Zhai & Associates Lawyers (Accused)
File Number(s): 2018/378301 Publication restriction: Nil
Judgment
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The Crown has filed a notice of motion in Court today, seeking an order that Taylah Lethbridge be permitted to have a support person, her grandfather, Anthony Lethbridge, present in the AVL suite in Newcastle whilst giving her evidence.
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The accused opposes the application.
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For the reasons that follow I refuse the application.
Background
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Ms Lethbridge was the partner of the deceased, Kenneth Denniss. She has provided five statements to the police, including one made on 8 December 2018, the day of the shooting. In those statements Ms Lethbridge has said that she was an eye witness to the shooting, as well as a relevant altercation about half an hour earlier that day between the accused and the deceased.
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She is a critical witness. Given what was stated in the defence opening, it is clear that aspects of her account will be challenged by the accused.
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The affidavit in support of the application prepared by the solicitor for the DPP with conduct of the proceedings records that Ms Lethbridge has advised her that she feels scared, nervous and on edge about giving evidence and that these anxious feelings are running through her head 24 hours per day, making her feel distracted and confused. She feels her brain is overwhelmed and has no words to explain how she feels. Ms Lethbridge asked to have her grandfather present so she could feel “at least a little bit comfortable” while giving her evidence, that he has been “her rock throughout these proceedings” and helps calm her. She was also concerned that re-visiting her evidence would impede her recovery from the events of 8 December 2018.
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The affidavit confirmed that Mr Anthony Lethbridge is not a Crown witness. Nothing was stated as to whether or how often Ms Lethbridge had discussed the proceedings with him.
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The application was not accompanied by any medical or psychological evidence.
Submissions
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The Crown Prosecutor argued that given the very distressing events of 8 December 2018, involving her partner and the father of her child, Ms Lethbridge should be given the support she seeks. Her evidence is important, it will have to be detailed and she should be permitted to have the presence of her grandfather to help her focus on the task and cope with the process.
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Mr Steel, counsel for the accused, submitted that the absence of medical material means that there is no basis for the Court inferring that there is a need for or utility in having the support person present. It is not unusual for a witness appearing in Court to feel anxious and nervous even though it may be more so in Ms Lethbridge’s case given the subject matter. However the defence agreed to her giving evidence by AVL which means she will not be in the courtroom, and this may serve to lessen her anxiety and should be taken into account.
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Nothing is known about the grandfather or what he knows about the case. He may be privy to a great deal of information about the case. He may be in a position where he cannot be seen in the AVL suite and he may communicate with Ms Lethbridge in the AVL suite during breaks.
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The concern of the accused is that he cannot be confident the proposed support person is independent. It causes a sense of potential prejudice.
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Parliament has turned its mind to the provision of support persons for witnesses in particular categories (s 306ZK of the Criminal Procedure Act 1986 (NSW)). Ms Lethbridge does not fall into any of those categories. The Court should be slow to make orders of that nature when opposed by the defence, unless there is very cogent material before the court that there is a need for it. There is not such material here.
Decision
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There is no compelling reason why Ms Lethbridge should have her grandfather present in the AVL suite as support. Although I recognise the events of 8 December 2018 would have been shocking and appalling for her, there is no medical evidence or psychological evidence tendered to support the conclusion that a support person is required, or will have the effect of alleviating the stress associated with giving evidence.
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I take into account that the defence has consented to Ms Lethbridge giving her evidence by AVL from Newcastle, not requiring her to come to Sydney and be away from her home town.
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The AVL display in the courtroom shows only the witness from the shoulders up, so that the image is sufficient for the jury to be able to see the witness and assess her during her evidence. There is no facility to take a longer view of the AVL room or to arrange things in a way that would permit those in the Court to see if the support person is gesturing, nodding or assisting in any way. This is something easily viewed in normal circumstances in the courtroom, but in the circumstances here, it cannot be seen.
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This is not to say these things will occur, but it is essential that any perception of unfairness or potential unfairness is prevented, to the extent possible.
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The fact that the affidavit in support of the application refers to Mr Lethbridge as being Taylah’s “rock throughout the proceedings” leads me to infer that it is almost inconceivable that Ms Lethbridge has not discussed with Mr Lethbridge the events of 8 December 2018 and so, aspects of her evidence. He cannot be said to be truly independent of the issues before the jury in this case, given his relationship with Ms Lethbridge.
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Ms Lethbridge does not fit within the categories identified in s 306ZK of the Criminal Procedure Act. If some medical or expert psychologist report was tendered, that provided reasons why a support person was necessary or appropriate, I may well have reached a different view but nothing of that kind has been provided.
Orders
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The notice of motion filed in court on 18 September 2020 is dismissed. Ms Lethbridge is not permitted to have the nominated support person, her Grandfather, Mr Anthony Lethbridge, present in the AVL suite whilst giving her evidence.
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Decision last updated: 19 November 2020
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