Supreme Court
New South Wales
Medium Neutral Citation: R v Hawkins (No 4) [2023] NSWSC 1496 Hearing dates: 21 November 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) Leave under s 108(3) of the Evidence Act 1995 (NSW) granted to adduce the evidence of Keira Thorby and Dillon McDougall; and
(2) Leave refused in respect of the evidence of AC.
Catchwords: CRIMINAL LAW – credibility evidence – application to adduce prior consistent statements to re-establish witness’s credibility – operation of s 108(3) Evidence Act 1995 (NSW) – whether s 108(3) only applies to re-examination – suggestion that witness fabricated evidence – whether unfairness arose through inability of accused to cross-examine witness on statements – consideration of the way the evidence emerged – where fact of conversation but no details led in chief – sound forensic choice not to cross-examine – no relevant unfairness – importance of evidence – timing of alleged fabrication of evidence – where consistent statement pre-dated fabrication – direction limiting use of evidence
Legislation Cited: Evidence Act 1995 (NSW), ss 37(1)(c), 108(1), 108(3), 108(3)(a), 108(3)(b), 136, 192, 192(2)(b)
Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323
Category: Procedural rulings Parties: Rex
Jason Paul HawkinsRepresentation: Counsel:
Solicitors:
B Hatfield (Rex)
B Bickford (Hawkins)
Solicitor for Public Prosecutions (NSW) (Rex)
Hugo Law Group (Hawkins)
File Number(s): 2021/00336983 Publication restriction: Not to be published beyond the parties until the conclusion of the trial.
The witnesses’ names have been redacted or anonymised to comply with non-publication orders made on 10 October 2023 and 15 November 2023.
Judgment
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In the course of the seventh day of Jason Hawkins’ trial for murder, I made three rulings under s 108(3) of the Evidence Act1995 (NSW), upon application by the Prosecutor for leave to ask questions calculated to re-establish the credibility of another witness, who I will simply call “the witness”. [1] The evidence was sought to be led through three other witnesses, each of whom told police that they heard things said by the witness in the hours and days following the murder of Stacey Klimovitch on 9 June 2021 at around 8.30pm.
1. A non-publication order has been made in relation to the identity of the witness in the context of them giving evidence in Mr Hawkins’ trial.
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In brief, the prosecution case is that a man called Stewart Campbell organised the murder of Mrs Klimovitch. He arranged for the witness to drive Mr Hawkins from Heddon Greta to Stockton where Mr Hawkins discharged a shotgun at the victim in the doorway of her home. She died of gunshot wounds to her upper chest, heart and left lung. The witness then…
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- AGLC
- R v Hawkins (No 4) [2023] NSWSC 1496
- Case
- [2023] NSWSC 1496
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the evidence and how it emerged during the trial. The witness had mentioned a conversation in their initial testimony, but no specific details were provided in the witness's initial statement. The prosecution decided not to cross-examine the witness on these statements due to the perceived lack of relevance. The court considered whether the defendant was unfairly disadvantaged by this decision. The court acknowledged that the evidence in question was crucial to the case, and the timing of the alleged fabrication of evidence was such that the consistent statement pre-dated the claimed fabrication. The court also directed the jury on the limited use of the evidence, ensuring that it was not misapplied.
The court ruled that section 108(3) of the Evidence Act 1995 (NSW) did not exclusively apply to re-examination and that the witness's credibility was appropriately bolstered by the prior consistent statements. The court found that there was no significant unfairness to the defendant in not being able to cross-examine the witness on the statements, as the decision not to cross-examine was considered a sound forensic choice. The court concluded that the importance of the evidence and the circumstances under which it was obtained did not result in any relevant unfairness to the defendant. The final orders of the court included the admission of the prior consistent statements to re-establish the witness's credibility, subject to the direction provided to the jury regarding their use.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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