R v Hawkins (No 6)

[2020] NSWSC 1401

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawkins (No 6) [2020] NSWSC 1401
Hearing dates:	1 October 2020
Date of orders:	1 October 2020
Decision date:	13 October 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The complete extract of text messages (MFI 16) from Taylah Lethbridge’s phone on 30 November 2018 between 6:56pm and 10:50pm can be tendered.
Catchwords:	EVIDENCE – relevance – tendency evidence – text messages – evidence relevant – evidence admissible
Legislation Cited:	Evidence Act 1995 (NSW)
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

1. An issue has arisen on day 13 of the trial as to the admissibility of certain text messages sent to and from the phone of Ms Lethbridge, the partner of the deceased Kenneth Denniss, on 30 November 2018.

2. On 1 October 2020 I ruled that the complete extract of text messages on 30 November 2018 between 6:56pm and 10:50pm should be admitted into evidence and that they are relevant to the issues the jury has to decide particularly in respect of tendency evidence. These are my reasons for so ruling.

3. The accused stands trial for the shooting murder of Mr Denniss on 8 December 2018. The Crown case is that the shooting occurred in the context of an earlier altercation between the accused and Mr Dennis during which the accused says that he was stabbed and threatened by Mr Denniss. The accused says that he shot Mr Denniss in self-defence

4. In March 2020, the previous trial judge made a ruling permitting tendency evidence to be led at the trial in relation to tendency on the part of Mr Denniss to act in a particular way, namely, to use weapons and to make verbal threats.

5. The tendency evidence permitted to be led related to an event said to have taken place on 30 November 2018 observed by a neighbour who lived across the road from Mr Denniss. The neighbour says that he observed a well-dressed couple attend Mr Denniss’s home that afternoon and that shortly after, he saw Mr Denniss chasing the young man down the road yelling with a baseball bat in his hand and that Mr Denniss assaulted that person with the baseball bat.

6. Mr Deniss’s partner Taylah Lethbridge was cross-examined by counsel for the accused, Mr Steel, about this event. It was put to Ms Lethbridge that the couple involved were Ben Matheson and his partner Prue who attended the house looking for Ms Lethbridge’s brother Blain who occasionally stayed there at that time.

7. Without going into the detail of Ms Lethbridge’s evidence, it is fair to state that she downplayed the incident somewhat, although she acknowledged that Mr Matheson attended that day looking for her brother and that Mr Denniss punched Mr Matheson in the face at the doorstep for disrespecting her. She specifically denied that Mr Denniss left the property and chased Mr Matheson down the road, and says that she left the premises to talk to Prue, but Prue got into the car with Mr Matheson and they drove off.

8. Ms Lethbridge was cross-examined regarding extracts of text messages sent from and received by her mobile phone later that day between 6:56pm and 10:50pm (MFI 16) as well as a log of calls to and from that phone between 6:50pm and 11:22pm (MFI15).

9. Relevantly, Ms Lethbridge said that she did not make the calls, she thought it was probably Mr Denniss making them and that Mr Denniss did not own a mobile phone at the time and used her phone. She said that she was not sending the texts set out in MFI 16, she thinks Mr Denniss was sending them, and that she was “possibly aware” that he was sending those texts. She also acknowledged that she had driven with Mr Denniss out to a property near Shortland that night and then drove home.

10. No objection was taken by the Crown to the tender of the Call Log (MFI 15) but the Crown argued that parts of the extract of text Messages (MFI 16) should not be received into evidence

11. Objection was taken to the following texts sent to and from a number ending in “0353”. The owner or user of that number is not identified in MFI 16 and there is no other evidence about who that person was. The first text in issue is an outgoing text at 8:51pm: “Oii its blain ring me”. This was followed a few minutes later by an incoming text: “I’m driving”, then a few minutes after that, a reply: “Ook”. At 9:00pm there was a further outgoing text: “Shits hectic here haha” and then a reply an hour and 15 minutes later: “Why what’s going on I’m abit lost I didn’t really get any of what ur sis said is everything all good?”.

12. Objection was also taken to a text sent to Ms Lethbridge’s phone at 10:50pm saying “Taylah. Benny Hardes. Benny Matherson hangs out with him nd jesse”. This text came from a telephone identified in MFI 16 as “Mums newest”.

13. The Crown Prosecutor argued that the contents of MFI 16 were put to Ms Lethbridge by Mr Steel on the basis that all of the text messages were between her phone and Prue’s phone. There are a number of texts to and from “Prue”. The texts to which objection has been taken were not to and from “Prue” and that means that there is a question mark over their relevance to the events of that day and they should be excluded as not relevant.

14. Mr Steel argued that the messages between Ms Lethbridge’s phone and the number ending in “0353” should be included because there is available an inference that the messages were between Ms Lethbridge and her brother Blain and he was relevant to the altercation on 30 November 2018 involving Ben Matheson. On one interpretation of the texts, Ms Lethbridge is describing things as being “hectic”, and so there are various inferences available to the jury from these messages. Further, Mr Steel submitted that the calls and texts provide context to the tendency evidence that has been adduced. The totality of the calls and texts put in context the activity occurring around and after the event (the altercation at the house on 30 November) consistently with answers given in cross examination by Ms Lethbridge. The message at 10:50pm appears to be providing information about where to find Ben Matheson or at least with whom he associates. It is therefore also relevant.

Reasons for Ruling

15. Section 55 of the Evidence Act 1995 (NSW) provides that relevant evidence “is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

16. Mr Denniss’s tendency to make threats and to use weapons is an issue to be taken into account. The text messages in issue are within a time period where Mr Denniss was using Ms Lethbridge’s phone. In that time period threats were made inferring violent acts would follow if certain demands were not met.

17. It is difficult to be dogmatic about what any of the specific text messages in issue mean and their significance may not be known until the evidence is complete. It would be wrong to exclude some of the text messages that emanated from or were sent to Ms Lethbridge’s phone that evening because the Crown, and to an extent the defence, are currently uncertain as to what they mean based on the evidence so far presented at this stage of the trial.

18. Within MFI16 there are multiple threats, abuses and demands which seem to be involving Ben Matheson and his partner, Prue.

19. Given Ms Lethbridge’s evidence about Mr Denniss using her phone that day and that he is responsible for the outgoing texts, I consider the material to be relevant and thus admissible.

**********

Decision last updated: 19 November 2020