R v Hawkins (No 4) - [2023] NSWSC 1496

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
R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328
R v MDB [2005] NSWCCA 354

Category: Procedural rulings
Parties: Rex
Jason Paul Hawkins
Representation:
Counsel:
B Hatfield (Rex)
B Bickford (Hawkins)
Solicitors:
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Not to be published beyond the parties until the conclusion of the trial.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

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.
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…

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 (No 4)

Details

AGLC: R v Hawkins (No 4) [2023] NSWSC 1496
Case: [2023] NSWSC 1496
Decision Date: 21 November 2023

CaseChat Overview and Summary

The case of R v Hawkins (No 4) was heard in a criminal court in New South Wales. The defendant, Hawkins, was facing charges in relation to a crime that occurred some time ago. The central dispute in this case revolved around the admissibility of prior consistent statements made by a witness to re-establish their credibility. The witness had suggested that the defendant had fabricated evidence, and the court had to decide whether section 108(3) of the Evidence Act 1995 (NSW) applied in this context. This section pertains to the circumstances under which prior consistent statements can be used to rebut an attack on a witness's credibility. The court was also required to consider whether there was any unfairness to the defendant in not being able to cross-examine the witness on the statements.

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