R v Hawkins (No 9)

[2020] NSWSC 1930

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawkins (No 9) [2020] NSWSC 1930
Hearing dates:	14 and 15 October 2020
Date of orders:	14 and 15 October 2020
Decision date:	15 October 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Leave pursuant to s 108 of the Evidence Act to adduce evidence of prior statements of Ms Lethbridge on the basis that they are prior consistent statements is refused.
Catchwords:	EVIDENCE — credibility evidence — prior consistent statement — Crown application to adduce evidence of prior consistent statements of witness to a shooting — accused charged with murder — self-defence raised — statements made to police — whether s 108(3) of the Evidence Act is engaged — question of whether leave should be granted — statements are not prior consistent statements — leave refused
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural 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. On day 17 of the trial, the Crown sought leave under s 108 of the Evidence Act 1995 (NSW) to adduce evidence of what it asserted were prior consistent statements of a witness to the shooting of the deceased Mr Denniss, Taylah Lethbridge. She gave evidence at the trial to the effect that she and Mr Denniss had their arms around each other at the time she says she saw the accused point the gun and fire at Mr Denniss.

2. The evidence is important because it has the potential to undermine the defence case that Mr Denniss came “flying” out of the shed with a weapon in his hand, a home-made mace, that the accused thought was a gun.

3. The statements sought to be led were things said by Ms Lethbridge to police very shortly after Mr Denniss was shot dead, recorded on the body-worn cameras of two early responding police officers.

4. Counsel for the accused Mr Steel opposed leave. First, because the portions relied upon are not prior consistent statements and cannot be viewed as such and so s 108 is not engaged at all and second, even if they were, leave should not be given, bearing in mind the requirements of s 108(3).

5. After receiving written submissions and oral argument, I refused leave. These are my reasons.

Section 108 Evidence Act – Exception to the credibility rule

6. Credibility evidence about a witness is not admissible: s 102 Evidence Act. Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witnesses’ ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence: Dictionary to the Evidence Act.

7. This rule, known as the credibility rule, excludes credibility evidence about a witness unless an exception applies.

8. Section 108(3) of the Evidence Act applies as an exception to the rule:

108 Exception: re-establishing credibility

(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.

9. The Crown seeks to re-establish the credibility of Ms Lethbridge by the tender of statements they say comprise prior consistent statements.

The evidence of Ms Lethbridge

10. Ms Lethbridge relevantly gave the following evidence in chief:

Q. Now, you said this: You said, "we shuffled back towards the roller door". What do you mean by that?

A. Like because of the way we were standing, we just, like we were still like holding, we were still like holding each other's arms, like that (indicated), and we moved back down here (indicated), like we took a couple steps back down there, you know I mean? Do you get what I am saying?

Q. I will describe what you're doing, pointing at the map where you have marked next to the wall in the garage and when you said and you were moving down here, you're moving your finger down towards the roller door; is that correct?

A. Yes.

Q. Another thing you said, Ms Lethbridge, you had your arms like this, and you held your arms in a certain way so your hands were grasping the opposite arm?

A. We were holding each other, yeah.

HER HONOUR: I think we better put it a bit clearly on the record what the gesture was. It was one hand grasping the other elbow, so each hand grasping the opposite elbow in a circle. Is that sufficient? And at about shoulder height? [1]

1. R v Daniel Mark Hawkins, Transcript of Proceedings, 21 September 2020, at T361.25-45.

…

Q. Now, as you were standing there as you described, and you saw Mr Hawkins, what happened next?

A. Like a split second, Ken tried to push me, tried to move me and push me and at the same I tried to pull him and, but I am, and at that exact same time again I heard a really loud bang, sorry, but when Kenny pushed me I actually felt like, I actually fell backwards like I fell over, and then like at that same time I heard a bang, like a really loud bang and by the time I looked at Kenny, Kenny was actually already on the floor laying down. [2]

2. R v Daniel Mark Hawkins, Transcript of Proceedings, 21 September 2020, at T370.15-22.

…

Q. You've said that Ken pushed you. When, in terms of the things that we've talked about with Mr Hawkins, did Ken push you?

A. From the second that we've seen him have the gun.

Q. And he pushed you; which direction did he push you?

A. Towards the side door back to where we were originally standing.

Q. What did you do when he pushed you?

A. I had actually fallen over, and then when I looked back up and I looked at Kenny, he was laying on the ground.

Q. I think you said earlier in an answer that you pulled him. Did you say that?

A. Yeah, yeah.

Q. When did that happen?

A. That was when we, like I said, when we had our arms linked like that because when we seen him, our arms were still touching each other's, but we were just, like, we - like I said, we just shuffled back and we looked up and we seen him. We were still, like, our arms were still touching each other's, and then he tried to, like, look at - like, try to push me like that, and at the same time, I tried to pull him, like.

Q. What did you pull him with or try to pull him with?

A. With our arms because, like, the way, like the way - way we were standing.

Q. When you said he pushed you towards the side door, did you say that you fell?

A. Yeah. [3]

3. R v Daniel Mark Hawkins, Transcript of Proceedings, 21 September 2020, at T375.21-48.

11. Ms Lethbridge’s account was challenged in cross-examination:

Q. That was in that position when Mr Hawkins arrived, correct?

A. I actually wasn't sure. I actually didn't remember it, the kids stuff being in the driveway at the time. I don't remember seeing it.

Q. You see I want to suggest to you that Ken, after bringing the roller door up from the middle has taken a step out past the grate area?

A. No.

Q. And he then had to change direction because that little car was in the way?

A. No.

Q. And it is at that point that he has this bat like object with the silver tape on it in one of his hands?

A. No.

Q. And it was in that situation that he was then shot by Mr Hawkins?

A. He was shot by him but it wasn't like that.

Q. You see I want to suggest to you that if you did pull Ken back at any stage it was after he had been shot and it may have been immediately after but it wasn't at the time or before he was shot, do you agree?

A. What? Say it again?

Q. Yes, I suggest that if you did pull Ken back it was after he was shot, not before he was shot, or at the time he was shot, do you understand?

A. Yes, but no, because we were cuddling.

Q. You see I suggest that you weren't cuddling at the time that Mr Hawkins has discharged this firearm?

A. Yes we were.

Q. I suggest the only reason that you are saying that you were cuddling is because you know that Ken had this bat in his hand when he come out of the garage?

A. No he didn't.

Q. And you are trying to offer an explanation of how he could not possibly have a bat in his hand?

A. No I am not.

Q. Now just in terms of where you are saying that you picked the bat up from, you have deliberately lied to the Court, haven't you, saying that you picked the bat up from near the side wall of the garage?

A. No, I never, I did not deliberately lie and I did not lie. They asked me when I remembered it and I said that is where I remember picking it up from.

Q. I suggest you picked it up next to the pool of blood because that is where it landed after it fell out of Ken's hand following his being shot?

A. No. [4]

4. R v Daniel Mark Hawkins, Transcript of Proceedings, 22 September 2020, at T455.14 to T456.13.

The evidence sought to be led – extracts from the body worn camera video

12. The material sought to be led contains the following relevant assertions as recorded in the videos:

1. Senior Constable Blyth body worn video at 16.25:

Ms Lethbridge: I tried to pull him away

2. Senior Constable Blyth body worn video at 16.40:

SC Blyth: Did you see the firearm Taylah?

Ms Lethbridge: Yep. I seen it. It was a sawn… I seen it… he…he…he went like this… said come out here and he said “yeah cunt” pulled it up like this and went... And I knew what it was straight away... and he just.. I tried to pull him, but I think when I pulled him, it pulled him in front of it and then it shot him… Have youse even seen where the holes are because I could only see a tiny little (points to chest) like where did it go? The back? The front? The head?

3. Senior Constable Chambers body worn video at 16.58.18:

Ms Lethbridge: I tried to pull him away from...

SC Chambers: Jack my name is Toni, Jack, were you out there when everything happened with dad?

Jack: Nah, I was in my room

SC Chambers: You were inside

Ms Lethbridge: ...I wasn't quick enough

4. Senior Constable Chambers body worn video at 17.09.49 to 17.10.00:

Ms Lethbridge: Yes, he come here with a shotgun, I tried to pull him

away...

Jack: I thought it was Jeso

Ms Lethbridge: I tried to, I tried to pull him away like that and he was... [inaudible] (Taylah grabs Bec's forearm and pulls her towards Taylah)

5. Senior Constable Chambers body worn video at 17.33.36:

Ms Lethbridge:   Belinda I tried to save him, I tried to pull him away from it

Belinda: What you were there, you seen it?

Ms Lethbridge:   Yeah Kenny was right next to me

13. Also tendered for context was a transcript of a portion of a statement of Senior Constable Blyth referring to what was shown on other body worn video taken at about 16.33:

SC Blyth: Taylah. Just focus. Did the guy who do this go in the house today or just went down the driveway?

Ms Lethbridge: He come here to get that motorbike.

SC Blyth: Yep.

Ms Lethbridge: And when my partner said he wasn't giving it to him, he started to pull something out so that, but just down here on the keyring, I put a, I put a pocketknife cause I used it, I was just using it as a screwdriver on that right - left side mirror. And then fucking my partner just went and got it and went "like fuck off cunt, don't come into my backyard." And then he left. And like not long later, he come back and said "yeah cunt" and pulled a shotgun out, like a sawn off shotgun".

14. At the request of counsel I viewed the footage containing the conversations set out in [12] (b)-(d).

Submissions and decision

15. The Crown submitted that there is consistency between the statements set out in [12] and Ms Lethbridge’s oral evidence because she repeats that she tried to pull the deceased away and that she thought that she had pulled him into the path of the shot. The approach in cross-examination indicates that it will be submitted, either expressly or by implication, that evidence given by Ms Lethbridge has been fabricated or reconstructed – deliberately or otherwise.

16. As submitted by counsel for the accused, the fatal difficulty with the Crown’s application is that none of the previous statements sought to be relied upon qualify as “prior consistent statements”, and so the application falls at the first hurdle.

17. The dictionary to the Evidence Act describes a prior consistent statement of a witness as “a previous representation that is consistent with the evidence given by the witness”.

18. Whilst the recorded previous statements by Ms Lethbridge indicate that she was somewhere nearby, close enough to “try to pull him away” and that he (Mr Denniss) was “right next to me”, none of these statements are consistent with the very specific evidence given that she and Mr Denniss actually had their arms wrapped around each other such that they had to, together as one, “shuffle” into view of what she described was the already open garage door.

19. None of the prior out of court assertions by Ms Lethbridge refer at all to their arms being wrapped around each other. There is no reference to Mr Denniss pushing her at the same time as she pulled him. The prior statements sought to be led paint quite a different picture, including in one piece of footage tendered, showing Ms Lethbridge grabbing her friend with one arm on the forearm when demonstrating what she says she attempted to do to pull Mr Denniss.

20. None of the evidence sought to be led comprises a prior consistent statement and so the leave sought under s 108(3) is refused.

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Endnotes

Decision last updated: 04 February 2021