R v Hawkins (No 4)
[2020] NSWSC 1395
•21 September 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Hawkins (No 4) [2020] NSWSC 1395 Hearing dates: 21 September 2020 Date of orders: 21 September 2020 Decision date: 21 September 2020 Jurisdiction: Common Law Before: Lonergan J Decision: The Crown application for the witness Taylah Lethbridge to revive her memory in court is granted.
Catchwords: EVIDENCE — witness evidence — reviving memory — in court — application for witness to revive memory by reference to a statement made to police by the witness — statement made proximate to the event — whether an accurate account given in evidence — whether there is a difficulty in recollection — credibility — application granted
Legislation Cited: Evidence Act 1995 (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 accused stands trial for the shooting murder of Kenneth Denniss on 8 December 2018. The Crown case is that the shooting occurred in the context of an earlier altercation that afternoon between the accused and Mr Denniss and that the accused, motivated by anger, returned to Mr Denniss’s premises and deliberately shot him. The accused says that on the contrary he went back to “scare” Mr Denniss but Mr Denniss came “flying out” of the garage with what the accused thought was a gun, and the accused fired in self-defence.
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Ms Taylah Lethbridge, the deceased’s partner and the mother of one of his children, says that she was an eyewitness to both the altercation and the shooting. She provided four statements to the police. The first in time was taken late on the night of the shooting. The shooting had taken place at about 4:00pm.
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Near the end of Ms Lethbridge’s evidence, which proceeded over some hours, the Crown Prosecutor made an application under s 32 of the Evidence Act 1995 (NSW) to permit Ms Lethbridge to refresh her memory about two aspects of her evidence that had appeared in her initial statement, but had not been stated in her oral evidence before the jury.
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Section 32 of the Evidence Act provides:
32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account—
(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that—
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.
….
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The Crown Prosecutor submitted that if the Court was not persuaded to grant the application under s 32, an application under s 38(1)(b) would be made, seeking leave to cross-examine in respect of those two matters on the basis that they are matters of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence.
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The first aspect was that in her statement she described the accused as having a “black man material satchel over his shoulder” when he first attended Mr Denniss’s premises. The Crown Prosecutor noted that the witness when first asked about this in her evidence said “I am sorry I can’t actually remember the first time but I don’t think he did” and then later in her evidence, possibly more firmly, said that he did not.
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The second aspect was that later in the altercation between the accused and the deceased, according to Ms Lethbridge’s statement the following occurred:
“Ken picked up the keys to the bike which he had a pocketknife on the keyring on it. Ken turned to Hawko (the accused) and said: “Get off my property. Why would you come here. You are a dumb cunt for coming here.”
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When asked by the Crown Prosecutor about whether the deceased said anything to the accused around the time that they went near each other on the driveway and just before the accused left the premises, the witness said “No, not that I remember. No he didn’t”.
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The Crown Prosecutor submitted that given that the statement to the police was made on the day that the events occurred, Ms Lethbridge’s memory in terms of the “smaller details” was better at that time, than it is now.
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Counsel for the accused Mr Steel conceded that the first point in respect of the recollection regarding the satchel could be the subject of a s 32 ruling, but opposed such a ruling regarding the second aspect.
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Mr Steel argued that the Court had grounds for drawing a conclusion that the evidence in relation to the second aspect was not a recollection issue and that on one interpretation, the witness had deliberately tried to portray the exchange that afternoon as a non-aggressive one, to in effect undermine the accused’s self-defence argument. On the accused’s case, there was anger and violence on the part of the deceased. In particular, the deceased stabbed the accused in the arm. There is an issue as to whether leave should be granted for the witness to revive her memory from her statement in those circumstances.
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The Crown Prosecutor submitted that contrary to the submission made by Mr Steel and contrary to an observation made by the Court, Ms Lethbridge did not disavow that anything said by Mr Denniss to the accused was said in anger, and in fact gave evidence that the deceased said in response to the accused saying he intended to take the motorbike, “No you’re fucking not”. The Crown Prosecutor submitted that the Court should not assume that the witness is being deliberately untruthful or unhelpful, but simply that she has forgotten that the deceased had said the additional things. The jury should have evidence before them of what Ms Lethbridge says Mr Denniss said, as it was her most contemporaneous account of what happened.
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The Crown Prosecutor argued that there was no unfairness to the accused in circumstances where the witness would be cross-examined and that in fairness to the witness, she should be permitted to be assisted to recollect something, before having something different put to her in cross-examination.
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I have had regard to the elements of s 32 and the requirements of s 192 of the Evidence Act and addressed my mind in particular to s 192(2)(b) regarding the extent to which to allow the witness to revive her memory from her statement would be unfair to a party or to a witness.
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It would be unfair to the witness in my view to not permit her to refresh her memory from a statement made on the day of the events, unless I can clearly conclude that the witness is not making a genuine attempt to give her evidence truthfully. Mr Steel understandably submitted that it would be unfair to his client to allow that evidence to be given via s 32 revival of memory if it is the fact that the witness has deliberately chosen not to give that evidence of that exchange in circumstances where that exchange may tend to undermine the accused’s self-defence case.
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It is in my view however difficult to conclude that there was deliberate withholding of the evidence regarding what Ms Lethbridge states in her 8 December 2018 statement that Mr Denniss said to the accused. Ms Lethbridge’s account given before the jury included describing the argument about the motorbike in which abusive language was used.
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I am of the view that it is not unfair to allow the witness to be provided with that portion of her statement to revive her memory. Any possible unfairness to the accused can be dealt with by cross-examination of the witness by counsel for the accused. It is important evidence that was contained in a signed statement made to police on the day the events occurred in a context where the witness could not know that self-defence was to be raised by the accused at a trial some year later.
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Leave is given for the witness to refresh her memory from her 8 December 2018 statement in respect of what she says she heard Mr Denniss say to the accused on the driveway and the assertion that the accused “had a black man material satchel over his shoulder” when he first visited the premises on 8 December 2018.
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Decision last updated: 19 November 2020
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