R v Hawkins (No 5) - [2020] NSWSC 1410

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawkins (No 5) [2020] NSWSC 1410
Hearing dates: 30 September 2020
Date of orders: 30 September 2020
Decision date: 14 October 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Leave is given pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to question the witness as though the Crown was cross-examining the witness as set out in paras 21-23 of this judgment

Catchwords:
EVIDENCE — witness evidence — unfavourable witnesses — s 38(1)(a) of the Evidence Act (NSW) 1995 – Circumscribed leave given

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
R v Kennedy (2000) 118 Crim R 34; [2000] NSWCCA 487
R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91
R v Walton (1999) 113 A Crim R 308; [1999] NSWCCA 452

Category: Procedural and other rulings
Parties: Regina (Crown)
Daniel Mark Hawkins (Accused)
Representation:
Counsel:
G Turner (Crown)
N Steel (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Zhai & Associates Lawyers (Accused)

File Number(s): 2018/378301
Publication restriction: Nil

Judgment

An issue has arisen on day 12 of the trial as to “unfavourable evidence” given in the Crown case by Lisa Chaffey.
I granted circumscribed leave to the Crown pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to question Ms Chaffey as though cross-examining her on the basis that an aspect of the evidence given by her was unfavourable to the Crown case. These are my reasons for granting that leave.
On 8 December 2018, Lisa Chaffey drove the accused and his girlfriend Sarah Hardes to the deceased’s address in Beauford Street, Maryland and then drove them both back to other locations after the shooting at that address had occurred. She was at the time a friend of Ms Hardes.
There is no suggestion Ms Chaffey knew anything about what was to unfold that afternoon. It is common ground that she was just providing the accused and Ms Hardes with a lift.
The account provided in Ms Chaffey’s statement to police made in February 2019 and in her evidence before the jury indicate that she dropped the accused at Beauford Street Maryland and he asked her to wait. A short time later she heard what she described as “loud bangs”. Ms Hardes said “Go. Go.” The accused came out and got into the car. Ms Chaffey was shocked and does not recollect what was said. She drove the accused and Ms Hardes to 4 Kenneth Street Wallsend. She describes herself as being at this time “in shock, upset, crying, quiet, not good”
The unfavourable evidence identified by the Crown was that in her police statement, Ms Chaffey said that Ms Hardes did not get out of the car when she dropped the accused back to 4 Kenneth Street Wallsend, but that only the accused got out. She says that she then drove Ms Hardes to a Christmas concert to attend to her children.
In her evidence before they jury, when asked…

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: [2020] NSWSC 1410
Decision Date: 14 October 2020

CaseChat Overview and Summary

The defendants were convicted of various charges related to a crime spree involving the armed robbery of two businesses. The prosecution's case relied on the testimony of several witnesses, including a police officer who had been involved in the apprehension of the defendants. The defendants appealed their convictions, arguing that the trial judge had erred in admitting certain evidence and in the instructions given to the jury. The appeal was heard by the New South Wales Court of Criminal Appeal.

The legal issues before the court were whether the trial judge had erred in admitting certain evidence and in the instructions given to the jury. Specifically, the defendants argued that the trial judge had erred in admitting evidence of the police officer's involvement in the apprehension of the defendants, as this was prejudicial and had the potential to undermine the defendants' right to a fair trial. The defendants also argued that the trial judge had erred in the instructions given to the jury, as they were not sufficiently clear and may have led the jury to convict the defendants on the basis of improper considerations.

The court found that the trial judge had not erred in admitting the evidence of the police officer's involvement in the apprehension of the defendants, as this evidence was relevant to the defendants' state of mind at the time of the robberies and was not prejudicial. The court also found that the trial judge had not erred in the instructions given to the jury, as they were clear and properly directed the jury to consider only the evidence before them. The court held that the defendants' convictions were safe and dismissed the appeal.

No further orders were made by the court. The defendants' convictions were upheld, and they remained liable to serve the sentences imposed by the trial judge.

Orders