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Not to be published beyond the parties until the conclusion of the trial.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

1. 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.

2. 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 drove Mr Hawkins to Argenton and returned to the premises in Heddon Greta.

3. The three men were jointly charged with murder and were to stand trial together. However, Mr Campbell took his own life while in custody awaiting trial and Mr Hawkins made a successful application for his trial to be held separately from that of the witness. The basis of that application was, amongst other things, that the witness had made two expansive recorded interviews with police in which, at least by inference, he implicated Mr Hawkins as the shooter.

4. The witness stood trial first and was convicted of manslaughter. The current jury is aware that the witness’s trial proceeded over the last weeks and that the witness is in custody, but to this point in Mr Hawkins’ trial, they have not been made aware that the witness was found not guilty of murder but guilty of manslaughter. When the order for a separate trial was made, and during argument on that application, the Prosecutor indicated that whatever the result of the witness’s trial, he would call the witness in the prosecution case against Mr Hawkins. This accorded with the Prosecutor’s duty to call material eyewitnesses but the witness’s evidence, if accepted, also had the capacity to refute a critical component of Mr Hawkins’ case, to which I will now turn.

5. Mr Hawkins’ case is that he did get into the car at Heddon Greta (a fact that is otherwise established by reasonably high-quality closed circuit television footage (“CCTV”)) but that he got out of the car “just up the road”. In a conversation with a Detective Faber, he was shown the CCTV footage and the following exchange occurred:

“Detective Faber: ‘And now you’ll see Campbell driving off in his ute and you follow with [the witness]’

Mr Hawkins: ‘Yeah, I’ll say I was there, that’s me. But I got out of the car and got dropped off just up the road.’”[2]

2. MFI 40 at [138].

6. More flesh was put on the bones of the defence case during cross-examination. The witness was staunch in refuting the suggestion that the man who travelled with him in the car – who he does not name as Mr Hawkins but refers to as “Canberra” (which was the city he came from) – did not get out of the car until it arrived at Stockton. Mr Hawkins case was put to the witness as follows: [3]

   3. Tcpt, 21 November 2023, p 433.

“Q. Shortly after taking that left hand turn onto the other road, you pulled the car over?

A. Definitely not.

Q. There was a black Hilux Ute stopped in front of you on the road?

A. Absolutely not.

Q. Two men got out of the Hilux Ute and approached your car?

A. 100% not.

Q. One of the men had brought something from the Hilux that had what appeared to be a piece of wood attached to it; is that right?

A. Definitely not.

Q. The person you referred to as Canberra got out of the car at this point, didn't he?

A. No.

Q. He ran into some bushy area at the edge of the road?

A. No.

Q. You got out of the car, and you were yelling at him?

A. No.

Q. He didn't return and you and the other men left; is that right?

A. In your mind, but no.”

7. Speaking more generally of the cross-examination, Mr Bickford undertook a thorough and effective dismantling of the witness’s credibility. It was established that in the days after the killing, he attempted to set up three false alibis and told a number of lies to friends and associates over the months before his arrest. Several inconsistencies in his account were established, as was his involvement in a so called “outlaw” motorcycle club and various yarns he had spun in that respect.

8. Importantly, for present purposes, it was established that the witness initially told lies to police when they attended his home on 25 November 2021 and he floated two of the (three) false alibis he had previously attempted to set up. He also floated a “hypothetical” situation whereupon he was cautioned. He then gave a version that (arguably and generally) accords with the version he provided to police later that day in a recorded interview. The cross-examination on this issue included:

“Q. You're starting to introduce some hypotheticals, are you, about what would happen if you said you were driving that night?

A. Yes, the word ‘hypothetical’ was used a couple of sentences later.

Q. Then you start testing the waters, don't you, with the police, to see what their reaction might be to that?

A. Yep.

Q. This is after they've told you they can forensically examine your car to see where it was that night?

A. Yes.

Q. You were very interested in their reaction to that?

A. It was - it was a time - it was a time of the afternoon where I was going to start telling the truth, fully.

Q. You decide at this point, don't you, to change your story about the false alibis; correct?

A. Yeah.

Q. Then you start another story, don't you?

A. No. I start the truth.

Q. You start a version of one that actually has you in the car, driving to Stockton that night; correct?

A. It's not a version, it's the fact.

Q. A version where you say you didn't know what you were going over there for; correct?

A. That's correct.

Q. It's a version that has the man that you refer to as ‘Canberra’ in the car with you, going to Stockton; correct?

A. 100%.

Q. You've told, up until this point, a series of deliberate lies about not being in Stockton that night, haven't you?

A. Who to?

Q. The police --

A. Yes.

Q. -- to begin with.

A. Yep.” [4]

4. Tcpt, 20 November 2023, p 401-402

The evidence sought to be led by the prosecution

9. The Prosecutor sought to lead evidence from Keira Thorby, AC [5] and Dillon McDougall of things the witness said on returning to the house at Heddon Greta the following day.

   5. The witness’s name has been anonymised to comply with non-publication orders made on 10 October 2023.

Keira Thorby

10. Ms Thorby was a carer for Dillon McDougall and was present at the premises at Main Road Heddon Greta on the night of 9 June 2021. In a statement to police on 18 January 2022, she told police that when the witness returned to the house he seemed “a bit freaked” and she asked if he was “good mate?”. He said “[y]eah, just got to check my car” and she asked him “[w]hy, what happened?” He then said, “I dropped the guy off and picked him up around the corner and he was covered in blood.”[6]

    6. Ex VD-H6 at [25].

11. She said she returned to the Heddon Greta house on 11 June 2021 and had another conversation with the witness in which he said:

“… said that he passed all the sirens near the lights going towards Stockton at Kooragang Island. He said his car will be on camera and he didn’t know why they’d done this. He did not say what ‘this’ was but he further said he’s been set-up and he was very annoyed because he was almost at the end of his parole.”[7]

7. Ibid at [33].

AC

12. AC was a friend of Dillon McDougall and used to spend a fair bit of time at the Heddon Greta house. He was there on the evening of 9 June 2021 and gave evidence of the comings and goings of the three accused men and also gave some evidence relating to the CCTV cameras used at the home and matters relating to the SD cards associated with the CCTV. The Prosecutor sought to adduce evidence of a conversation he said he heard between Mr McDougall and the witness on the return of the latter from Stockton. The witness allegedly:

“[T]old [McDougall] he [the witness] shouldn’t have given Billy [a name by which the accused introduced himself] a lift last night; He further said, ‘It’s caused too much problems.’”[8]

8. Ex VD-H7 at [41].

Dillon McDougall

13. Dillon McDougall was the principal occupant of the house at Heddon Greta. He had an interview with police on 7 December 2021. He was having friends around to watch the State of Origin game on 9 June 2021 and was able to provide an account of the events of that night and the days following. He spoke about the presence of the witness, Mr Campbell and the third man who he did not know. He said they left (Mr Campbell in one car and Mr Hawkins and the witness in the other), and the witness returned about an hour and a half later.

14. The Prosecutor sought to adduce the following evidence of a conversation he said he had with the witness later that night:

“Q27 What, what did he tell you?

A He said he had driven, I’ll refer to him as Bob, ‘cause I don’t actually know his name, um, driving him to Stockton.

Q28 Yep.

A Waited in a street and then picked him back up again ...” [9]

9. Ex VD-H8 at p 4.

The objections

15. The evidence was first sought to be adduced through the witness Keira Thorby and objection was taken “to hearsay”. [10] The Prosecutor submitted that the evidence was admissible under s 108 of the Evidence Act because it was evidence re-establishing the witness’s credibility and (implicitly) that it was not relied on for a hearsay purpose (that is, to establish the truth of the representations made by the witness to or in the presence of the three witnesses).

    10. Tcpt, 21 November 2023, p 454.

16. Section 108 provides:

Exception: re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

…

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if--

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

Does s 108 only apply to re-examination?

17. Mr Bickford submitted that, because of the terms of s 108(1), the section only applied to the re-examination of a witness whose credibility had been impugned:

“This is evidence-in-chief of another witness. [Section] 108 as an exception to the rule against hearsay applies to re-examining witnesses, as was quite properly done with [the witness]. This is evidence‑in‑chief of a different witness.” [11]

11. Tcpt, 21 November 2023, p 455.

18. No authority was provided for this submission, and I did not accept it. The submission is contrary to the structure and terms of s 108. Further, the submission flies in the face of the implication behind any number of cases where evidence of another person is admitted (or considered for admission) under s 108(3), where that witness can provide evidence of what a complainant said to them about the event subject of the charges: see, for example, Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61, R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328 (“DBG”), R v MDB [2005] NSWCCA 354 (“MDB”) and Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323 (“Nikolaidis”).

19. To be clear, s 108(1) concerns re-examination of a witness whose credibility has been impugned. Section 108(3) concerns or may relate to evidence from a source other than that witness. It is s 108(3) that governed the question that arose following Mr Bickford’s objection. Section 108(3) is not concerned with the witness whose credibility is sought to be re-established.

The submissions under s 108(3)(a)

20. I found it unnecessary to decide, but had significant doubts about, the Prosecutor’s submission that subs (3)(a) was engaged, whereby a prior consistent statement could be tendered, under the section, to counter cross-examination of a prior inconsistent statement that was on a different subject matter. [12]

    12. Tcpt, 21 November 2023, p 455.

Section 108(3)(b) and the timing of the representations

21. The real force in the Prosecutor’s application for leave under s 108(3) arose from his submission that it had (or will be) suggested that evidence given by the witness was fabricated. Mr Bickford acknowledged that fabrication had or would be raised. The passage of the cross-examination set out at [8] demonstrated that fabrication was clearly an issue.

22. Accordingly, there being no suggestion that the evidence was not relevant (and it clearly was), the evidence of the three witnesses was admissible, because the credibility rule did not apply to it, if it constituted a prior consistent statement and the Court granted leave. Whether leave should be granted fell to be determined by reference to the matters in s 192 of the Evidence Act and any other relevant considerations.

23. In DBG Howie J said at [56]:

“As was pointed out in the passage from Graham, which I have quoted above, the admissibility of evidence under s 108(3) is an exception to the credibility rule. It is admitted for a purpose different from that for which evidence of recent complaint is placed before the jury. It is evidence of a prior consistent statement which is relevant to rebut an attack upon the complainant's general credibility which arises either by the introduction of a statement which is inconsistent with the evidence given in the trial or because of an allegation that the evidence given in court is a fabrication, reconstruction, or the result of suggestion. Because the statement is being admitted to meet that particular attack, the timing of the making of the statement, generally speaking, will be more important than the circumstance in which the statement is made.”

24. Similarly, in Nikolaidis Simpson J (as her Honour then was) referred to the timing of the relevant representation at [218]:

“Ms Moffatt left the firm in the middle of 2001. Any statement she had made prior to that date, consistent with her evidence about the creation of exhibit 1A, was therefore capable of rebutting the suggestion of fabrication.”

25. Her Honour had taken the same approach in MDB at [24]:

“Here, the evidence that was relevant only to the complainant’s credibility was not confined to the evidence of the statements he had made to his school friends and to his mother. The evidence also encompassed the circumstances which led to his making those statements. These circumstances were the prospect that he would be required to accompany the appellant on another camping trip. That, in my opinion, was capable of being very powerful in enabling the jury to understand why it was that he had delayed in his disclosure for a period of six months, but had made his disclosures when he did. It was capable of being compelling evidence in rebutting the suggestion of fabrication, by explaining the context and the circumstances in which he took the course he did.”

26. Finally, in Doyle v R; R v Doyle [2014] NSWCCA 4, Bathurst CJ said at [182]:

“Whilst, in my opinion, the fact that the consistent statements were not fresh was relevant to the exercise of the discretion, it is not a precondition for leave being granted under s 108(3) of the Evidence Act. Although the statements were said to have been made some five years after the alleged incident, they were made well prior to the trial. Although the trial judge did not refer to this matter, he was expressly referred to the complaints being late in the argument that took place on the day of his ruling and in those circumstances there is no reason to doubt that he took this into account.”

27. In the present case, the representations upon which the prosecution seeks to rely on did not involve any extensive delay. They co-existed temporally with the witness’s attempts to set up false alibis and the creation of false narratives (such as saying that Mr Campbell had taken his car that night), matters upon which he was extensively and effectively cross-examined.

28. The conversations relied upon to re-establish the witness’s credibility are consistent with aspects of his evidence and were made in June 2021, that is, well before his interviews in November and December. The implication underlying the cross-examination was that the witness settled upon (or fabricated) the version to the police which formed the basis of his evidence in the current trial after he lied to the investigators and floated his false alibis.

Section 192 and whether leave should be granted

29. Section 192 provides:

Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

30. I considered the terms of the section in so far as it was relevant. The evidence was not likely to add to the length of the trial to any real extent. The power to adjourn was not relevant and the nature of the proceedings militated in favour of granting leave, provided there was no unfairness to the accused and the evidence was important in re-establishing the witness’s credibility.

30. Mr Bickford submitted there was unfairness because the accused had not had an opportunity to cross-examine the witness on the representations. He submitted:

“… [T]he difficulty with asking this particular witness these questions is that the evidence from [the witness], who was available, about this subject matter came out in re-examination. That is, it didn't come out in evidence in chief so we weren't given an opportunity in that respect to then examine that or ask him questions about that because it happens in re-examination, when there's no longer any opportunity to test that evidence which might otherwise make it that he was available, for instance, to give evidence about this sort of evidence. My submission is that even if 108(3)(b) was engaged, there's also, connected to that, just because of the way in which this evidence came out, an unfairness to the defence in not being able to forensically question [the witness] about this conversation, for instance. Had the evidence have come out in evidence-in-chief from [the witness] that there was some specific conversation with Ms Thorby, then perhaps that could be challenged or he could be examined about that. As I understood [the witness's] evidence, it was he couldn't remember that he had a conversation with Ms Thorby.” [13]

13. Tcpt, 21 November 2023, p 456.

32. This submission was relevant to the grant of leave: s 192(2)(b).

33. However, there was no relevant unfairness in the way this evidence emerged or in the evidence the prosecution sought to adduce from the witnesses. In his evidence in chief, the witness gave the following evidence:

“Q. When you went inside the house at Heddon Greta, what did you do?

A. From memory, I think it was half time at the State of Origin, and I might've - I may have went to the bathroom, just refreshed my face, and come back and watched the second half of the football.

Q. Did you say - and don't tell us what - anything to anyone about where you had been that night?

A. I - I told one or two people prior to going to Stockton, before - before we'd left, but--

Q. When you came back, did you say anything to Dillon about where you'd been?

A. There'd been conversations, like, little conversations, yes, and I would've said I've gone to Stockton, at some stage, I'm not sure when. It was after the footy, or during the footy.

Q. Don't tell us what was said, but whether you had any conversation about where'd you been with Keira Thorby. Do you recall?

A. Yes, I think so.

Q. [AC]?

A. I don't remember talking to him about it.

Q. Did a friend of yours, Elizabeth Cox come to your house later?

A. Yeah - it was never my house - but Melissa did call in, yes.

Q. Sorry, I said Melissa - Elizabeth Cox, is that her name?

A. Yes, Elizabeth. There was Liss and Liz.

Q. Liss is--

A. Melissa.

Q. Melissa Robinson.

A. And Liz--

Q. Elizabeth Cox, is known as Molly. Is that right?

A. Correct. That's where the Molly came from, to stop the confusion.

Q. Do you recall doing anything else that night when you came back from being at Heddon Greta and speaking with some people?

A. No I don't recall.” [14]

14. Tcpt, 21 November 2023, pp 343-344.

34. Following the cross-examination, the witness gave the following additional evidence in re-examination:

“CROWN PROSECUTOR: Now, the next questions may need leave under s 108, your Honour.

HIS HONOUR: Is there any prospect of an agreement, do you think?

CROWN PROSECUTOR: I can let my learned friend know.

Q. [The witness], I asked you in the evidence in chief, do you recall whether you said anything when you got back to the people who were in the house. Do you recall that?

A. Yes.

Q. I asked you whether you said anything to Keira, do you remember saying anything to Keira or what you said?

A. Yeah, I spoke with Keira, but--

Q. Do you recall what you said to her about what you'd done that night?

A. I would have - I probably told her what had happened.

Q. Can you remember what you actually said or not?

A. Not exactly, no.

Q. What about Alex, do you remember what you said to Alex about what had happened when you got back?

A. I don't recall talking to Alex at all, other than the football.

Q. In relation to Dillon, do you recall what, if anything, you said to Dillon that night about what you'd done earlier?

A. Exact words, no.

Q. Did you speak to him about it?

A. I would have spoken - I did speak to Dillon, yes.

Q. Then you had a conversation later with a friend, Elizabeth Cox, is that the case?

A. Correct.

Q. Now, you still have that first interview there with you?

A. 21?

Q. Yes?

A. Yes.

Q. Now, did you say something to the police in the interview about what you said back at the house when you got back, do you recall?

A. I'm not recalling, is there a page I can--

Q. I'll take you to it. Question 441 and answer 441. Yes, page 66. Page 65 is the answer to question 441, which goes over to page 66, and just part of what you said there, ‘that I was sort of in shock’. This is about 10 lines down.

A. Sorry, are we on page 66?

Q. Page 66. Part of what you said there was, ‘I was sort of in shock by the time I got to Dillon's place, and I may have said, “I think this cunt's shot somebody”’, is that what you said in that part of the interview to the police?

A. Yes.

Q. About what you'd said when you got back?

A. Yes.

Q. Then at 453, did you say 453, do you see there, you're being asked there by police what you said when you got home to Dillon's. Question 453 is, and you said words to the effect of, and your answer was, ‘I think this cunt's - I think Stuey's fucked us up, and I was, I think this cunt shot someone’. That's what you told police you said when you got back to Dillon's?

A. Yes.

Q. Then at 584, you were asked, ‘What does Dillon know about your role in this?’, and you said, ‘Only what I would've told him’. Question 584 was, ‘Which is what?’, and then part of your answer was;

‘Um, I ended up fucking being talked into driving over there. He would've known about it when I got back, like, when I was, like, I just said, explained to you, I didn't openly just say it to people. I - I, um, I think it was said to me, "What the fuck's going on”, like, I was in some sort of state, and, um, I've said – I've – or some – I don't even know what I said, but I think this cunt shot somebody, or what the fuck Stuey done, because he'd involved me in that.’

Is that what you said to police in the interview about what you said to Dillon?

A. Correct.” [15]

15. Ibid 443-444

35. These parts of the transcript show that the conversations (or three of the four conversations) were raised with the witness in his evidence-in-chief, although the details of the conversations were not adduced. It is unlikely that those details would have been admissible at that point in his evidence, other than by agreement. It was open to counsel to cross-examine the witness on the detail of those conversations, but it is readily understandable, from a forensic perspective, why he chose not to do so. Once the cross-examination challenged the witness’s credibility in a substantial way, more detail was elicited in re-examination. The evidence was clearly admissible under s 108(1) at that stage and, quite properly, no objection was taken either to the admissibility of the evidence or to the Prosecutor adducing it by asking leading questions. [16]

    16. Evidence Act 1995 (NSW), s 37(1)(c).

36. No application was made to ask further questions in cross-examination and, again, that seemed like a sound forensic choice.

37. I perceived no relevant unfairness in adducing the evidence of Keira Thorby and Dillon McDougall. Even if there is thought to be some unfairness in the way the evidence emerged, it could be alleviated by (i) making an order under s 136 limiting the use of the evidence and (ii) directing the jury in the summing up about the dangers of hearsay evidence and the fact that the use of the evidence is limited strictly to its ability to impact on the jury’s assessment of the witness’s credibility. That direction would include that Mr Hawkins can have no way of knowing what was actually said and that it is therefore difficult to cross-examine the witness. It might also include that the evidence is potentially unreliable because there is no recording of the conversations, and because the jury must rely on the memory of the witnesses. [17]

    17. A direction was given in the summing up that the evidence was limited to assessing the witness’s credibility: see MFI 57 sch 10(a); Tcpt, 30 November 2023, pp 38-39 (summing up).

38. Against that, the capacity of the evidence to re-establish the witness’s credibility was quite significant as it demonstrated, if accepted, that he provided a relevantly consistent version very shortly after the events in question and well before the police interviews in November 2021.

39. I came to a contrary view in relation to AC’s evidence, at least in terms of its importance or capacity to re-establish the witness’s credibility. His evidence related to things he overheard and the representation to which he referred to in his statement was ambiguous. Consequently, I declined to grant leave for the Prosecutor to adduce paragraph [12] of AC’s statement. [18]

    18. Tcpt, 21 November 2023, p 474.

Rulings

40. For those reasons, I made the following rulings on the evidence:

1. I granted leave to adduce the evidence of Keira Thorby, set out above at [10]-[11].

2. I declined to grant leave to adduce the evidence of AC, set out above at [12].

3. I granted leave to adduce the evidence of Dillon McDougall, set out above at [13]-[14].

Post-script

41. The evidence was led from Ms Thorby and Mr McDougall in a somewhat edited and shorter form. [19]

    19. Ibid 474, 501-502.

42. An order was made limiting the use of the evidence and the jury was directed in accordance with this judgment. [20]

**********

20. Tcpt, 21 November 2023, pp 458-460; Tcpt, 30 November 2023, pp 38-39 (summing up).

Endnotes

Decision last updated: 20 December 2023