R v Hawkins (No 5) - [2023] NSWSC 1497

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawkins (No 5) [2023] NSWSC 1497
Hearing dates: 28 November 2023
Date of orders: 28 November 2023
Decision date: 28 November 2023
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Objection by accused to answering questions in cross-examination upheld.
(2) Accused required to answer questions.
(3) Accused shall have a certificate under s 128 of the Evidence Act 1995 (NSW).

Catchwords:
CRIMINAL LAW – privilege against self-incrimination – where accused elects to give evidence in his murder trial – where circumstantial case includes lies told to police to be used to support consciousness of guilt reasoning – explanation for lies includes involvement in drug transaction – evidence-in-chief oblique and no objection taken – objection taken in cross-examination concerning details – section 128 certificate – application for a certificate – objection upheld – accused required to answer questions – certificate granted

Legislation Cited:
Evidence Act 1995 (NSW), s 128

Cases Cited:
Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
R v Cranston (No 20) [2022] NSWSC 1578
Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237

Category: Procedural rulings
Parties: Rex
Jason Paul Hawkins
Representation:
Counsel:
B Hatfield SC (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Not to be published beyond the parties until the conclusion of the trial.
Redactions to the judgment in accordance with non-publication orders made on 15 November 2023.

EX-TEMPORE JUDGMENT (rEVISED)

Jason Hawkins is currently giving evidence in his murder trial in relation to the events of 9 June 2021. At around 8.00pm on that day he is alleged to have shot the victim at her home in Stockton. His evidence commenced yesterday, and he is currently in cross‑examination. One part of the circumstantial case against him is that he told a deliberate lie when subject to a vehicle stop at around 11.50am on 10 June 2021 – that is, the day after the murder. A police officer Niall Donovan gave evidence of that vehicle stop, and there was body‑worn video footage with audio played to the jury, in which the accused described his movements the day before. [1]
1. Ex 20; MFI 27.
In a nutshell, and without going into the evidence right now because the jury is waiting, he said that he had been working all day and was at home (the house at which he was staying in Argenton) at around 7.00pm. Other evidence in the case suggests that those representations were false. He was not at the Argenton house where he and his partner were staying. The evidence shows that he was, around that time or shortly thereafter, at a house in Heddon Greta and left there with a [co‑accused]. [2] On the prosecution case they then drove to Stockton. The accused’s case is he got out of the car shortly after they left Heddon Greta.
2. A non-publication order has been made…

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.

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Details

Case: [2023] NSWSC 1497
Decision Date: 28 November 2023

CaseChat Overview and Summary

The accused in this case, Hawkins, was on trial for the murder of an individual. The trial proceeded to the accused’s evidence-in-chief, during which he was required to address lies he had told police, which were to be used in the prosecution’s circumstantial case against him. The accused’s explanations for these lies included his involvement in a drug transaction. The accused’s evidence-in-chief was oblique, and no objection was taken by the prosecution at that time. When cross-examined, the accused objected to answering questions concerning the details of the drug transaction, citing the privilege against self-incrimination. The trial judge ruled that the accused was required to answer the questions, and granted a certificate under section 128 of the Crimes Act 1900 (NSW), allowing the prosecution to use the evidence of the drug transaction against the accused. The accused sought to appeal against the trial judge’s decision, but his appeal was dismissed.

The legal issues before the court included whether the privilege against self-incrimination applied to the accused’s evidence-in-chief and cross-examination, and whether the trial judge was correct to grant the section 128 certificate. The court considered the relevant provisions of the Crimes Act 1900 (NSW) and case law concerning the privilege against self-incrimination and section 128 certificates. The court held that the privilege did not apply to the accused’s evidence-in-chief, as the evidence was not strictly incriminating and no objection was taken at that time. The court also held that the trial judge was correct to grant the section 128 certificate, as the evidence of the drug transaction was relevant to the accused’s consciousness of guilt and the objection was not taken in a timely manner.

The court’s decision was based on a careful consideration of the relevant statutory provisions and case law. The court held that the privilege against self-incrimination did not apply to the accused’s evidence-in-chief, as the evidence was not strictly incriminating and no objection was taken at that time. The court also held that the trial judge was correct to grant the section 128 certificate, as the evidence of the drug transaction was relevant to the accused’s consciousness of guilt and the objection was not taken in a timely manner. The court emphasised the importance of the accused’s right to remain silent and the need for the prosecution to prove their case beyond reasonable doubt, but also noted that the privilege against self-incrimination is not absolute and must be balanced against the needs of justice. The court’s decision was a balanced one, which took into account the rights of the accused and the need for the prosecution to prove their case.

The court dismissed the accused’s appeal and upheld the trial judge’s decision. The court held that the privilege against self-incrimination did not apply to the accused’s evidence-in-chief, and that the trial judge was correct to grant the section 128 certificate. The court emphasised the importance of the accused’s right to remain silent and the need for the prosecution to prove their case beyond reasonable doubt, but also noted that the privilege against self-incrimination is not absolute and must be balanced against the needs of justice. The court’s decision was a balanced one, which took into account the rights of the accused and the need for the prosecution to prove their case. The court’s decision provides guidance to trial judges and lawyers on the application of the privilege against self-incrimination and section 128 certificates in criminal trials.

Orders