R v Hawkins; R v Garland - [2023] NSWSC 1201

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawkins; R v Garland [2023] NSWSC 1201
Hearing dates: 3, 4 October 2023
Date of orders: 9 October 2023
Decision date: 09 October 2023
Jurisdiction: Common Law
Before: Hamill J
Decision: Pursuant to ss 21 and 29 of the Criminal Procedure Act 1986 (NSW), order that Jason Hawkins be tried separately from Stephen Garland.
Catchwords:
CRIMINAL LAW – separate trial application – accused jointly charged with murder – where each accused claims to have been set up by the other and a third co-accused now deceased – where one accused provided lengthy interviews to police – not admissible in the trial of the other – statutory test – application of authorities – whether single jury can make credibility findings in one case and disregard such findings in the other – where first accused compellable to give evidence in second trial –whether general rule relating to cut throat defences applies in particular circumstances – substantially different defences – extent to which evidence common to both cases – potential for prejudice and embarrassment – capacity of judicial directions to cure prejudice – whether order may result in inconsistent verdicts

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29(3)
Evidence Act1995 (NSW), ss 38, 128, 165

Cases Cited:
Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179
Director of Public Prosecutions v Lehrmann (No 5) (2022) 373 FLR 253; [2022] ACTSC 296
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hamalainen v R [2019] NSWCCA 276
Hoang v The Queen (2022) 96 ALJR 453; [2022] HCA 14
Nader v R [2018] NSWCCA 256
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
R v Basanovic and ors (No. 1) [2015] NSWSC 1033
R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482
R v Douglas [2000] NSWCCA 275
R v Grondkowski [1946] KB 369
R v Hawi & ors (No 3) [2011] NSWSC 1649
R v JH (No 3) [2014] NSWSC 1966
R v Newson; R v Cunneen (No 2) [2020] NSWSC 462
R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15
R v Roff [2015] NSWSC 1853
R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37
R v Spicer [2013] NSWSC 1907
R v Symss [2003] NSWCCA 77
R v White & ors (No 1) [2012] NSWSC 465
R v Sio (No 3) [2013] NSWSC 1414
R vFernando& Anor [1999] NSWCCA 66
Regina v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649
Regina v Pham [2004] NSWCCA 190
Singh v R; Dhillon v R [2023] NSWCCA 237
Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category: Procedural rulings
Parties: Rex
Jason Hawkins
Stephen Garland
Representation:
Counsel:
B Hatfield SC and R Meagher (Rex)
B Bickford (Hawkins)
T Hughes (Garland)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Hugo Law Group (Hawkins)
SANS Law (Garland)

File Number(s): 2021/00336983; 2021/00356964
Publication restriction: The witnesses’ names have been anonymised to comply with non-publication orders made on 10 October 2023.

JUDGMENT

Jason Hawkins seeks an order pursuant to ss 21(2)(b) and 29(3) of the Criminal Procedure Act 1986 (NSW) that he be tried separately from his co-accused Stephen Garland. The two men stand jointly charged with the murder of Stacey Klimovitch on 9 June 2021 at Stockton, near Newcastle. Mr Garland is also charged in the alternative with one count of accessory after the fact to the murder. Both accused men pleaded not guilty to these charges when arraigned on 14 April 2023 before the list Judge.
The Director of Public Prosecutions opposed the application for a separate trial. Mr Garland’s approach to the application was enigmatic.1 While a “preference” for a joint trial was expressed on the second day of the voir dire, [1] and concessions were made that certain things said by Mr Garland would not be pressed if the Prosecutors excised them from the evidence, no positive submissions were made on the issue and there was no suggestion that Mr Garland would suffer any prejudice if an order for a separate trial was made. On the first day, Mr Garland’s position was neutral, with his counsel indicating that it was a “matter for the court”.
The application was based on three grounds set out in a notice of motion dated 23 August 2023:

“i) The accused Jason Hawkins would be unfairly prejudiced in his defence by reason of being tried together with the accused Stephen Garland;
ii) The unfair prejudice to the accused Jason Hawkins could not be overcome by judicial direction; and
iii) The proceedings for the accused Jason Hawkins ought to be heard and determined separately to that of the accused Stephen Garland in the interests of justice.”

The trial was listed to commence on Tuesday 3 October 2023 with an estimate of six weeks. Various other estimates for both a joint trial and two separate trials have been provided and a witness list was provided by the Prosecutor. If the trials were separated, they would run back-to-back with Mr Garland’s trial proceeding first whereupon he would become a compellable witness in Mr Hawkins’ case. [2] Separate trials would almost certainly occupy more court time, and there would be a doubling up of a number of the witnesses, a matter militating in favour of the Prosecutor’s position on the present application.
The application for a separate trial was foreshadowed at the first mention of the matter on 9 June 2023. The notice of motion was supported by an affidavit of Mr Hawkins’ solicitor affirmed on 23 August 2023. Exhibited to the affidavit was a 465-page bundle derived from the prosecution’s brief of evidence. [3] The separate trial application was run concurrently with an objection to several pieces of evidence the Prosecutor seeks to adduce against Mr Hawkins. The impugned evidence consists of various “admissions” and/or “lies” going either to Mr Hawkins’ credibility or, perhaps, to demonstrate a consciousness of guilt. That evidence, whether it be admitted or excluded, is not of great relevance to the present application except insofar as it impacts on a relative assessment of the strength of the prosecution case against the two men. I am yet to hear final submissions on the admissibility issue, but the determination of that objection would not impact upon the decision as to whether the trials should be separated or conducted jointly. The evidence on both applications was adduced on Tuesday and Wednesday last week and oral submissions on the present application concluded late on Wednesday 4 October 2023, when I adjourned with a view to deliver judgment today, Monday 9 October 2023. A jury panel has been arranged for tomorrow.
The decision is not a straightforward one and I have been greatly assisted by counsel on both sides who provided comprehensive and persuasive written submissions supplemented by succinct oral arguments. There was no real dispute as to the legal principles involved and I was taken to a number of authorities and directed to the relevant parts of the evidence.
In short, because the prosecution case involves an allegation of a joint criminal enterprise, and the case involves something like “cut-throat” defences where each accused seeks to blame the other (at least by inference), the starting point is that the trials should be heard together and the guilt of each accused determined by the same jury. The prosecution relies heavily on this – for want of a more accurate term – presumption. Against that, Mr Hawkins relies on a body of evidence that will be admitted in Mr Garland’s case which is inadmissible against Mr Hawkins but which implicates him as the shooter in the murder. Mr Hawkins submits that judicial direction is incapable of curing the prejudice that will arise from this evidence and that there is an impermissible risk that the jury will fill gaps in the prosecution’s circumstantial case by reference to things Mr Garland said to various civilian witnesses and in the course of lengthy interviews with investigating police. The Prosecutor contends that directions can be fashioned which will prevent such prejudice and notes that the Court must proceed on the assumption that the jury will understand and obey those directions.
I will return to consider the authorities in more detail but I will first explain the thrust of the prosecution case, my understanding of the cases to be made on behalf of the accused, the facts that are expected to be in dispute and the evidence in Mr Garland’s case that gives rise to the application and the asserted incurable prejudice.

The prosecution and defence cases in a nutshell

The prosecution case is that the two accused men were acting on behalf of Stuart Campbell who died in March this year. Mr Campbell was in a relationship with Alexandra Klimovitch (Ms Klimovitch), the daughter of the victim Mrs Stacey Klimovitch (the deceased or Mrs Klimovitch). The couple had a child in March 2021, after which their relationship deteriorated. The relationship between Mr Campbell and the deceased was a tense one and the latter disapproved of Mr Campbell’s involvement in the drug trade and his treatment of her daughter. On 31 March 2021, the deceased allegedly slapped Mr Campbell during his first visit to see his newborn child. Mr Campbell reported the assault to police although he did not make a formal statement. The police questioned the deceased and Ms Klimovitch about the assault, but no charges were laid. In May 2021, Ms Klimovitch ended her relationship with Mr Campbell after taking out an Apprehended Violence Order against him. She then moved out of their property with their child and went to live with the deceased. There is a suggestion or inference that Mr Campbell blamed the deceased for the breakdown of his relationship and believed that Mrs Klimovitch was responsible for her daughter, Ms Klimovitch, placing limits on his contact with his child.
The prosecution alleges Mr Campbell formed a motive to murder the deceased and arranged for Mr Hawkins and Mr Garland to carry out the killing while he (Mr Campbell) had an alibi. Mr Campbell knew Mr Hawkins since about March or April 2021 when they were introduced by a mutual associate, Luke Fay. They shared an interest in guns. Mr Campbell’s association with Mr Garland is established by evidence that the latter attended a real estate agency to rent a property in May 2021, in circumstances where Mr Campbell had previously informed the realtor (Lisa Watson) that the pair were business partners.
The prosecution case is that Mr Garland drove Mr Hawkins to and from the area of the killing (the deceased’s home in Stockton) and that Mr Hawkins shot the deceased at, or outside of, those premises. Mr Garland’s defence is expected to be that he drove Mr Hawkins to that area but had no knowledge of any plot to kill anybody. Mr Hawkins’ case is expected to be that he travelled in the car with Mr Garland but that he got out of the car before they arrived at the area of the killing.

The evidence and cases in more detail

The prosecution case against both men include a compilation of CCTV footage taken from what I understand to be cameras at private residences, or a public house, in both Heddon Greta and Stockton. The critical parts of this compilation were played in Court during the voir dire. There are also several witnesses who witnessed the movements of the men at relevant times. Much of the chronology that follows is derived from that evidence and the most recent version of the prosecution case statement dated 26 September 2023. [4]
It is alleged that Mr Campbell, Mr Hawkins and Mr Garland met on the afternoon of 6 June 2023 at 1 Victoria Street Argenton. It is not clear whether this was the first time the three men met.
On the evening of 9 June 2021, the three men met again at Mr Garland’s residence in Heddon Greta. It was the night of a State of Origin rugby league match and there were other people gathered at the house to watch the game. The prosecution alleges that evidence from Mr Garland’s ‘phone and CCTV footage show that Mr Garland then left his home and drove in the direction of Stockton with Mr Hawkins as his passenger. Mr Campbell was not present and instead spent the rest of the evening with his daughter.
It is alleged that, at 7:52pm Mr Hawkins hid a shotgun in the bushes near the deceased’s house at 22 Queen Street Stockton. At 8:06pm Mr Hawkins retrieved the shotgun from the bushes and made his way towards the deceased’s house and knocked on the front door of 22 Queen Street. The door was answered by the deceased. Mr Hawkins said “Staceeey” and then delivered one fatal gunshot to the deceased’s chest before fleeing. A car consistent with Mr Garland’s was seen leaving Stockton towards Argenton at 8:09pm.
Mr Garland arrived home at 9:00pm. After he spent some time outside searching his car, Keira Thorby asked him if he was alright. Mr Garland told Ms Thorby that he dropped someone off and, when he picked them up around the corner, they were covered in blood. Later that evening he also told a friend, EC, that he had done Mr Campbell a favour and dropped off one of his mates to Stockton. This “mate” of Mr Campbell’s told Mr Garland to wait and then got out of the car and started running. He returned after several minutes and when he got back in the car, he had a gun with him — a gun Mr Garland claimed he did not previously see.
The following morning Mr Garland cleaned his car, told EC he was concerned that gunshot residue was left in his car and travelled to Stockton where it is alleged he attempted to arrange alibis.
On 24 November 2021 Mr Campbell met with Mr Garland to reassure him he was not going to “dog” him to the police.
On 25 November 2021 Mr Garland was arrested. He participated in a recorded interview with police (“ERISP”) on 25 November 2021 and then again on 15 December 2021. In these interviews he agreed that he drove a friend of Mr Campbell’s to Stockton. However, Mr Garland claimed he did not know a shooting was planned nor committed, and that he never saw a gun.
Around midday on 10 June 2021 police spoke with Mr Hawkins in Boolaroo, just outside of Newcastle. He told the police he was staying at Victoria Street with friends “Lisa and Stewie” and that he came up to Newcastle for work. Later that day Mr Hawkins drove back to Canberra with his partner Jessica Burton.
On 26 November 2021 Mr Hawkins was arrested. He claimed he was set up by Mr Campbell and/or Mr Garland.
The case against Mr Hawkins is said to be a circumstantial one. In written submissions Mr Bickford summarised the prosecution’s circumstantial case and the Prosecutors took no issue with that summary which was as follows:
In April or May 2021 Mr Hawkins was introduced to the co-accused Mr Campbell.
Mr Hawkins is alleged to have shared an interest in guns, knives and “spy things” with Mr Campbell. He had a shortened shotgun stored at his home.
On 3 June 2021 Mr Campbell sent a message to Mr Hawkins that read “Sicaro Soldaro.” Sicaro; Day of Soldado is a movie about a hired gun man working with the CIA.
In early June 2021 Mr Hawkins told his partner, Ms Burton, that he was going to Newcastle with Mr Campbell to have a break from home and do some roofing and debt collecting with Mr Campbell.
Around the same time Ms Burton was going through Mr Hawkins’ phone and saw photos of a shotgun. The shotgun had ornate patterns on the side, a trigger guard and looked like a Browning brand.
On 5 June 2021 Mr Campbell and Mr Hawkins travelled from Canberra to Newcastle in Mr Campbell’s white ute. CCTV footage captured the ute turning into the driveway of 1 Victoria Street Argenton at 7:51pm.
On 6 June 2021 at 11:46am, Mr Hawkins is seen on CCTV footage walking from 1 Victoria Street Argenton wearing a red cap and glasses. He returned a short time later carrying a drink. At 3:37pm Mr Garland attended 1 Victoria Street Argenton. At that time Mr Campbell, Mr Garland and Mr Hawkins [were] at the house.
On 6 June 2021 at 5pm, Mr Hawkins withdrew $100 from his account at an ATM near 1 Victoria Street. A bank record in his name showed an internet deposit of the same amount at 4:53pm.
On the evening of 6 June 2021 Mr Hawkins and Mr Campbell attended the home of Mr Garland and Mr McDougall at 33B Main Road Heddon Greta. Mr Hawkins and Mr Campbell borrowed Mr McDougall’s black ute and later drove back to Canberra.
While Mr Hawkins was in Newcastle, Ms Burton viewed Mr Hawkins google account on her phone. She saw a reference to Queen Street Stockton and a photo of a house with a veranda and a tree in the front.
On 7 June 2021 Mr Garland attended 1 Victoria Street Argenton. At 3:24pm Mr Campbell returned to this address. A witness, Mr JS, said that a couple of days before 9 June 2021 he was at 1 Victoria Street where he heard Mr Campbell ask Mr Garland to arrange a car to take someone to Stockton.
On 8 June 2021 Mr Hawkins and Ms Burton left Canberra and returned to Newcastle. They travelled in a convoy. Mr Hawkins drove Mr McDougall’s ute and Ms Burton drove a dark blue Astra. Mr Hawkins talked to Ms Burton about returning the ute, but not about doing work for Mr Campbell.
On 9 June 2021 at 12:33am Mr Campbell called Mr Hawkins on his phone. Just after 4:00am Mr Hawkins and Ms Burton meet with Mr Campbell and entered the house at 1 Victoria Street.
During the 9 June 2021 Mr Campbell paid six months registration for Mr Hawkins’ and Ms Burton’s car. During the same day witness, Mr JS, recalled visiting 1 Victoria Street. Mr Hawkins, Ms Burton, Mr Garland and Mr Campbell were at the house. Mr Hawkins was alleged to be in possession of a double barrel (under over) full length shotgun with ornate pictures on the side. It was wrapped in a towel and placed into a duffle bag. Mr Hawkins indicated it cost $1500.
At 6:16pm on 9 June 2021 Mr Hawkins and Mr Campbell attended 33B Main Road Heddon Greta. Mr Garland greeted them outside. At 6:23pm the three accused entered the house. Mr Hawkins is depicted on CCTV footage from the house to place a red cap and a green fabric garment on a chair at the front of the house.
There were other people in attendance at the house to watch the State of Origin. While inside it is alleged Mr Hawkins said he had to grab a bag and went outside and collected a bag from the ute and walked towards the back of Mr Garland’s car.
At 6:30pm Mr Campbell and Mr Hawkins exited with Mr Campbell patting the front of Mr Garland’s car and gesturing to Mr Hawkins. Mr Garland followed shortly after and walked to the boot of his car. A witness, Ms Thorby, saw either Mr Hawkins or Mr Campbell put a bag in the boot of Mr Garland’s car. The bag was about 50cm long and dark. All three then returned inside.
While inside the house Mr Hawkins and Mr Campbell introduced themselves to other people using different names. Mr McDougall saw the three accused go into Mr Garland’s room where they remained for half an hour before leaving the house.
At 6:50pm Mr Garland exited the house and got into the driver’s seat of his car. Shortly after Mr Hawkins exited the house, picked up the red hat and fabric item from the chair before he got into the front passenger seat of Mr Garland’s car. Mr Campbell walked to the driver’s side of Mr Garland’s car and talked to him. Mr Garland then drove off with Mr Hawkins. Mr Campbell also left in his white ute.
Mr Hawkins’ mobile phone was subsequently switched off and not used again. Mr Garland’s phone remained operational for a time showing movement towards Stockton before also being turned off. CCTV footage showed a car consistent with Mr Garland’s car travelling to Stockton.
At 7:52pm CCTV footage at showed a person hiding something in the bushes outside of 10 Queen Street Stockton. The person wore a high vis top and a cap. The Crown alleges this is Mr Hawkins.
At 8:03pm Mr Hawkins is alleged to be seen on CCTV footage walking past 32 Queen Street towards 10 Queen Street. He put on gloves and wore a hooded top with a cap. At 8:06pm Mr Hawkins was seen on another camera approaching 10 Queen Street. He wore a light coloured hooded jacket with the hood up and a baseball cap underneath. He collected the firearm, which was a shotgun. While picking up the firearm his hood was pulled back revealing a red baseball cap.

At 8:07pm Mr Hawkins walked into the yard of 22 Queen Street. He knocked on the door and said “Staceeey” before he shot the deceased once to the upper chest through the screen door with a 12 gauge shotgun.
A car consistent with Mr Garland’s was observed on CCTV leaving the Stockton area and travelling towards Argenton, where it is alleged Mr Garland dropped Mr Hawkins before returning to 33B Main Road Heddon Greta.
The next day, 10 June 2021 at 11:53am Mr Hawkins car, which was being driven by Ms Burton, was stopped by police. There were two other men in the car, one of whom was Nigel Doolan. When questioned about his movements the day previous Mr Hawkins was recorded to say “Lisa and Stewie I (sic) came up to work 2-3 days ago, done roofing yesterday, birthday today taking him to work and then we are going.” He said “[w]e worked here yesterday all day on the roof just down there. Till late. I got home about 7. Going home today I have kids down there want to see them.”
Mr Hawkins and Ms Burton returned to Canberra. While in Canberra, Mr Hawkins told Ms Burton he had lost his phone in Newcastle. Mr Hawkins was alleged to have tried to contact Campbell a few times through Mr Doolan without success. He also received some charge papers relating to Mr Campbell from a friend Troy Fay.
~~Upon returning to Canberra, Ms Burton noticed a significant changed in Mr Hawkins. He started drinking heavily, using whatever drugs he could and became heavily involved in religion.~~ ~~[5]~~
[Evidence not pressed by prosecution and not sought to be led by Mr Garland.]
Police executed a search warrant of Mr Hawkins home where they found a couple of photos of shortened firearms.
The Prosecutor, without demur from Mr Bickford, indicated in argument that Mr Hawkins will not dispute that he got into the car with Mr Garland but claims he got out of the car before it arrived in Stockton. Inferentially at least, his case is that somebody else did the shooting and, like Mr Garland, is suggesting that he was “set up” by Mr Garland and/or Mr Campbell:

“CROWN PROSECUTOR: … the issue for his client is, did he get out of the car? Because he acknowledged to your Honour the identification of him getting into the Commodore, that we saw at the start, that that was his client who got in. So, the issue is, did he get out, and did another shooter get in? And that's a discrete issue, and it's not a complex issue.” [6]

The “prejudicial” evidence to be tendered against Mr Garland which is inadmissible against Mr Hawkins

There is a substantial body of evidence before the Court on the voir dire concerning the things Mr Garland said to police and civilian witnesses which implicate both himself and Mr Hawkins. That evidence was summarised in various ways in the submissions and comprised the bulk of Ex VD-1. The Prosecutor concedes it is not admissible against Mr Hawkins. In supplementary submissions, he helpfully structured the admissions made by Mr Garland in five categories:

Category A: Mr Garland’s description of interactions or conduct by the person [which can be inferred is Mr Hawkins] who got out of the car at Stockton;

Category B: References to Mr Hawkins [including indirectly] as a person who Mr Garland believed was a “heavy” and/or was involved in bashing people;

Category C: Statements linking Mr Hawkins with an actual bashing [or altercation] with Mr Fuller;

Category D: Mr Garland’s subjective belief [or belief in the possibility that] the trip to Stockton was to bash somebody; and

Category E: Statements which are irrelevant and/or speculative and can be redacted without prejudice to either party.

I will now set out the admissions made by Mr Garland under these categories, noting that by agreement the evidence in category C and E and the underlined portions in category B will not be led in a joint trial.

Category A

Category A involves admissions made by Mr Garland that do not explicitly identify Mr Hawkins but can be inferred to be referencing Mr Hawkins.
On 25 November 2021 Detective Sergeant Matthew Faber and Detective Senior Constable Benjamin King spoke to Mr Garland about seizing his car for their investigation. The conversation was recorded by a listening device. Mr Garland made many admissions to the police which led to his arrest, including the following category A admission:

“A guy got in the fucken car, that I’ve never met, don’t know, dunno, still to this day don’t know his name. I, I was of the belief that I was dropping him at Stockton, going back to Martin’s. I um, went over there, he pulled me up in a street, he got out of the car, off he went, some five minutes later come back, um, they’re not home can you drop me at Edgeworth or um, Argenton. That’s what I did.”

After being arrested Mr Garland participated in an electronically recorded interview with police (“first ERISP”). Mr Garland made the following category A admissions:

“Q37 …
A … Oh, this guy that drove the other car, I'm assuming he drove Dillon's because Stuey would have drove his car. That guy threw his bag in the boot of my car. He jumped in the passenger seat, and I said, Where to? And he, he said, Going to Stockton, I'll, I'll give you the address when we get there, I, I believe. I didn't know, um, Stockton all that well, I wouldn't have known the, a, a street. Um, and off we went. Um, he pulled me up, we went down to the water and I think up the main street. Um, he, he tol, he told me to stop somewhere. And then he's gone out of the car for 5, 10 minutes or something, come back to the car. He said, Oh, go up the, up the road a bit. I think we went into the main street again, or, or I'm not sure. Um, and he said, Can you park down this street here? He jumped out of the fuckin', out of car, and was gone 5, 10 minutes. Um, I, I, I'm pretty sure I sat with the car running and had music playing. Um, it, he come back in a, in a dither. He was, he was breathing heavily, like, sweatin' and, and, and obvious, to me he was obviously, um, ah, well, I, if I was goin' to guess I'd say, shock. Um, it was a, it was a weird lookin' feeling. He, he wasn't talkin'. He was, he was breathing heavy. And he said, Go. And I, off I drove. Um, where the fuck we goin'? And he said, Could, can you drop me at Argenton? And that's where I did.”
...
“Q302 … Where did you go to the moment you entered Stockton?
A I, this guy did not know where, where this street was. He, he knew a street, I, I, and I wasn't overly, um, familiar with Stockton. Um, I, I drove all the way, all the way down as far as, nearly as far as you could go, I think, to the water. And turned, I, I'm pretty sure I turned up the main street. And then he was lookin' at street signs. Pull in here. Or, um, Stop here. That's all I got out of him. Now I, I'm sure I stopped, he got out of the car for 5 minutes, come back to the car, and, Go on this way. And pulled into the, another street. He said, Wait here, and got out of the car. Went to the boot …
Q304 Yeah.
A Shut the boot, fucked off. Come back a mess.”
…
Q320 Yeah. And then where?
A We turned a left into a street. I've got no idea what the name of the street, Turn left here. I turned left. He said, Go along here, go along here, go along here. And went down to the end of the street. He said to turn around and come back. And park here. And he went to the boot, he popped the boot, um, went to the boot, he went across the road towards ah, ah, a house that, um looked like it had been getting some renovations done on it. That was, the last I saw of him. He disappeared.”
...
“Q327 And so when you saw him going, he was carrying - - -
A A bag.
Q328 How would you describe the bag?
A Um, I'm guessing again. It looked like a bigger, ah, it's like, like, a, not a small sports bag, a bag that would carry clothes. I said, What's happening? He said, Can you wait here? And the first thing was, is he's, he's checkin' whether, whether they're there. Um, and then he just came back a fuckin' mess. Like, heavy breathing, and, and, um, just a, erratic as fuck. Let's get out of here. And off we drove. He didn't talk about what he'd done. And I knew he, it sounded, it felt like he'd done more than gone and bashed somebody. I didn't know there'd been a shooting. I didn't hear a shooting. That's the honest truth. Um, and I, but, but, Let's fucking get out of here. Like, in a, a erratic, ah, voice. And I did. And I couldn't get him out of the fucking car quick enough.
Q329 Was he still carrying anything when he came back to the car?
A I, it was dark. I did not see a gun. I didn't even expect a gun. I didn't know it was going to be a shooting, I didn't see it. Um, he's just jumped in the car and said, Just get out of here. And I'm fucking driving, looking forward, like, like, what the fuck's happened? And it was like that all the way home. Like, we didn't speak. I, I, I didn't speak on the way there. He had, he was in a trance of some sort. I was in shock, I think. Like, what's fuckin' happened? 'Cause it was, wherever he'd done, it, it affected him, like, he was just a different person. Like, like, couldn't breathe, and trouble breathing, and heav, fast breathing. And I, I didn't know that this had happened. Like, somethin' had happened, but I didn't know - - -”
…
“Q386 You said he came running out in a---
A Yeah---
Q387 - - - huff and puff and jumped - - -
A ---I---
Q388 - - - in the front passenger seat
A I think he went through the seats and, there's a thing you pop down. And it just takes you, you can cra, crawl through it. Like, he's just pushed it through there.
Q389 Pushed what?
A His bag. Or his coat he took off. Or whatever he fuckin' did. I don't know.
Q390 It's fair to say it's probably the firearm?
A It could have been, but it wasn't a firearm as, as such. I never saw a gun. It could have been wrapped in a, in something if it was. But he put it through, he was leanin' through the seat. He didn't crawl in through, just leaned through the seats. And this thing pops down. And it's that wide. A person could crawl through it. And he's fiddling around. And, and I'm drivin'. I'm not watchin' what he's doing. What the, or even askin ' what he's doing. It, it, this is a, a long time ago, and little fine details are probably important, but they're things that you've got to have a reason to be remembering little things. And I'm 64 year old, and my memory is not good, for whatever reason.”
…
“Q441 What, what is that?
A … Um, ah, I was asked earlier, did I know there'd been a shooting. Well in, in my head, all I could remember was, I didn't know there'd been a, what came to me was that I didn't know there'd be a lady shot. Um, that, that was the next day, definitely, as I've said earlier, but what I did remember, um, ah, when this, and, and nothing else really changes, I, because of what he said, he, he hopped into the car and he said, I think I've dropped a shell. Now, that's came to me just now. Um, why I just remembered, I don't know, but, um, that gave me this why I was so fuckin' quiet and so in, um, I didn't want to look at him, or talk to him on the way back. It, it, it gave me this idea that, yes, something had, fuckin' bad had gone down. I, I couldn't get him out of the car quick enough, and get out there, get away from there. I, I, I vaguely remember, I don't know who to, but I, I was sort of in shock by the time I got to Dillon's place. And I, and I may have said, I think this cunt's shot somebody. Um, there might, I don't know whether there was an ongoing conversation, I was sort of hopin' it wasn't. Um, but I've just remembered, and I don't know why I just remembered, but this, he said, and it's basically all he fuckin' said, I, I think I dropped a shell. He's scuttered around beside the seat or whatever while, um, ah, whilst driving. Um, he, he got out, it was, the rest of the trip was the same. I, I didn't want to speak to him because, 'cause I'm, I'm partly in shock as to what's happened.”
…
“Q839 Is there anything further you wish to say that we haven't discussed though?
All I, I want to say over and over again, I did not know this was going to be a murder. I did not know that was happening. Um, I was made aware of it, and, and I only thought of it out there, was when this cunt said about, I think I've dropped a shell. That's pricked my ears to the point where I felt fuckin' sick. And get him out of there.”

Mr Garland participated in a second ERISP with police on 15 December 2021, to answer further enquiries about the death of Ms Klimovitch (“second ERISP”). At the time Mr Garland was in remand at Silverwater prison. Mr Garland made the following category A admissions:

“Q112 Did he give you a street name or not?
A At, at some stage he would have, uh, um, because I didn't know, I, I, I would have, if I, if he said, I want to go to Blue Street, I don’t know one street from the other in Stockton. I can't help him, I can't help him out and whatever, whatever street he had in his head he was looking for…”
…
“A We turned off that street and looking for street, looks, street names, Can you stop in this side street? Stopped, he's getting out to, to get out or he's getting out to look for a street, at this stage we, we hadn't found whatever street he was looking for. Come back within a few minutes, um - - -”
…
“A But, uh, drove down the main street, uh, he's looked slowly, um, he's looking, I was, actually op, hope, trying, looking for a shop open to by a drink, I was dry, no, no such thing. I drove along the main street, he slowly, he said, can, Turn a left here, I went down that street, it almost, er, if it didn't go back to the main road that was coming in, it came to a bit of a funny, sort of, an intersection. He said, Can you turn around and go back along that street again, which I did. I went half way along it and parked on the left hand side of that road. Uh, I don't know whether I turned the car off or whatever, turned the lights off and sat there. He got out of the car and went to the right into a, it looked, like, a, a yard that was getting work done on a house.”
…
“Q178 So when he got out of the car at this time, did he go to the boot then?
A I don't know whether he, gotI, er, I don't know whether wa, 100 per cent, I don't remember whether he got something out of the boot the first time we stopped or the second time we stopped - - -
Q179 But in your - - -
A - - - went to the boot.
Q180 In, in your mind he's got, gone to the boot on at least one occasion, just not sure which - - -
A Yes.
Q181 [12:20] - - - one.
A Yep”
…
“A… Next minute he's at the side door, opening his door, jumps in and fr, obviously breathing heavy, fast and erratically. Um, and something may have been mentioned along the lines of, get going. Ah, I dunno when it was, be, before he actually closed the door or after, I think I dropped a shell was said.
Q210 Meaning in your car, or outside the car, or - - -
A I was hopin' outside the car. He didn’t elaborate.
Q211 [12:26] All right. Was he lookin' around for something?
A Yeah. He feeled, felt around beside the seat. We were already drivin' when that happened.”
…
“Q219 What was in his hands?
A Um, I didn't look to see what he was carryin', I didn't, at this stage I'm not knowing there'd been a shot of any kind taken. Ah, he was scussin', oh, scruffling around and lookin' around beside the seat. And then he reached through the seats and pulled down the, the, the leather, um, bit in between the seats which goes directly to the boot, and put something in the boot. Clothes or whatever.”
…
“Q226 And what did he say when he got in the car?
A Word for word I'm not sure 100 per cent. Um, I think I dropped a shell. That's all.”
…
“Q232 And how was he when he got in the car?
A Very, um, ah, distraught might be a word. Ah, flustered, ah, breathin' heavy, unsettled. All those words.”
…
“Q244 Did you say to him, what the, what the hell just happened?
A No. I, I didn’t want to know and I wouldn't have asked because if you don't know, you don't know. And if they don't tell you don't know. So I've, I've been like that all my life, if something's none of my business, none of my business. What the fuck, where we going, where you going now, what are we doing, It, all, things like that would have been said, take me to fuckin' Stewie's house and would have made a, not fucking, take me to Stewie's house. I'm thinkin', I can't get there quick enough, get this person out of my car and fuckin' go and see my girl. And then I just was all, the picture wasn't, it was just lookin' bad, things he'd, the thing about the shell, ah, the, the sussness of the parkin' in the dark and parkin' there. It's still I'm not thinkin' murder at any stage, because I didn't know nothin' about a murder at any stage. Something illegal's happened, yes.”
…
“Q250 Did he volunteer anything?
A He, the only thing I could vaguely remember is, Just listen to you, you're old fuckin' school, just keep your mouth shut.
Q251 About what?
A Anything
Q252 He didn’t say what.
A He didn't, he didn't say anything about shooting anybody. I didn't know prior, I didn’t know on the drive back. I didn't know a gun was used.
Q253 At no time did you see a gun on this night?
A Never did.”
…
“Q256 And was there anything in your car spoken about that?
A No. I'm thinkin', what the fuck. He's already knows what he's done. I don't want to know what he's done. I'm still gettin' to fuckin' Argenton as quick, as get him out of my car. He's not gunna tell me he's done something. That's just another person that knows. He already knows, I'm assuming that Campbell's told him, I'm old school and will not fuckin' talk to the police. I'm assumin' he's already of that assumption.”
…
“A So if they, if I'm, I've been told this, Campbell knows this, oh, ah, this guy knows this, he doesn't want to be on camera getting out of the front of Stewie's house. I don’t know. I, I, he's just, Can you take me back to there, fuckin' good, get out of me car as quick as you can and get, I don't want to see you again. I never saw him again.
Q274 So was it your idea to pull up short or his?
A Not my idea.
Q275 Were you worried about the surveillance business you just mentioned?
A Of course. I've just, I'm in a car with this guy that's done some misdemeanour and on camera him gettin' out of my car. I didn't want him anywhere near my car.”
…
“Q293… Did he take anything with him from the car?
A Yes. Whatever he had with him, like whatever he took with him, he took with him out of the car.
Q294 How did he get it?
A Oh, once again I don’t know 100 per cent sure. I probably popped the boot for him and he took it out of the boot.
Q295 Mmm.
A Now the reason I don't know this 100 per cent, because I don’t think it was on the backseat, I don't know whether he leant through and grabbed it and got out of the car, I don't know whether he asked me to pop the boot. Alls I wanted was him and whatever he fuckin' had out of my car and gone. He walked away and I drove off and, am I gunna go and see Dani, no, oh, fuck it, I'm too upset, I can't think straight. And I went straight back to Heddon Greta.”
…
“Q313 Oh, we, before you, before I fast forward to the next morning, what did you say their on the night to, to them?
A This is, I told 'em exactly what sort of, I thought had happened. We, we, Stewie's fuckin' se, set us up in some sort of way, he's involved us in this fuckin' thing. I've taken his mate over to Stockton, he's, there's somethin' going on. Oh, whatever. I didn't, it never this mentioned. Um - - -
Q314 So you never ---
A I told 'em, I told 'em what was said, the shell bit. Um, I told 'em exactly my thoughts on what, how it transpired.”
…
“A… Once I'd, they'd questioned me, what's happened, what the fuck's happened, sort of thing. And what's up with you, ah, I just let out what I sort of just transpired. And, and what I said transpired is what I remember what I said to them all. I took him over there, it wasn't what we, what I thought was happening. Somethin's fuckin' gone down. I've dropped him back at Argie and I've come here…

Q318… So the next day when you had that conversation and certainly obviously the penny had dropped by that time, that you knew that you'd been caught up in this murder.
A Yes. When the word murder, somebody had been shot at Stockton, a, a, like a lady, a grandmother, I was appalled by it. Yeah.
Q319 This might sound a dumb question initially, but how do you know that that's what you were involved in when you went to Stockton?
A I just assumed by the way it all unfolded, that all the way things went down.
Q320 Can you explain that?
A Well there's a murder in Stockton, a grand lady, a grandmother's been killed, shot dead. I'm over there, I've taken a guy there with s, suspicious things happening, and then getting dropped back to Campbell's place. Campbell bein' a suspicious fuck anyway with whatever the things he's left lyin' around. The whole picture's adding up, the, the, how many, two different things. How many bad things can happen in Stockton on the same time on the same night. So, yes, we're thinking, the group are thinkin', he's involved us in this.”

Category B

Category B involves admissions made by Mr Garland which both directly and indirectly refer to Mr Hawkins as a “heavy” and/or someone who was involved in bashing other people. They are relevant to determining Mr Garland’s state of mind, regarding whether he believed the trip to Stockton was to bash someone.
The underlined portion in the extract below are the portions that the prosecution and Mr Garland agree can be redacted.
In his first ERISP Mr Garland made the following category B admissions.

“Q37 All right. Um, Stephen, as I said, we're making inquiries in relation to the murder of Stacey Klimovitch. Um, that occurred on a Wednesday night at about 8.07pm. It was actually the night of the State of Origin, ah, on the 9th of June, 2021. What can you tell us, um, about your involvement, if any, in relation to that?
A … They turned up, ah, somebody turned up drivin' Dillon's ute. Ah, a, a guy I'd met days earlier at another address in, um, I keep forgetting the suburb, ah, Argenton maybe. Um, a, a house that we believed that, or Stuey told us that he owned. Ah, I've met this guy, he's supposed to have been some sort of a thug to come up and bash somebody, ah, at somewhere. And, um, he turned up driving, I believe, ah, I'm not 100 per cent sure, he turned up driving Dillon's ute.”
…
“Q 132 Do you know his name at all?
A … But, ah, he, 1 day I went to the property at Argenton, number 1, whatever street that was, across the road from the pub, ah, Stuart was there. And he said, He's my, he's a, um, a mate of mine from, ah, Canberra. Ah, there was, like, secret whispers, like um, he's, ah, a heavy that's, blah, blah, blah. And, ah, are yeah, right. And he'd been in a altercation with somebody. Now just from my memory, I'm, and I've got no memory, um, I thought it was Fuller that he got in this punch on, punch up, with. And he looked to me to be the loser of this little thing for somebody. He was a small guy. Um, I, I couldn't understand, um, like, the, the heav, the heavy thing. But, um, I didn't know what was goin' on. I don't know what the, what they're beef was. Um, I don't know whether one robbed, ah, the house, Stuey's house, or Fuller, I don't know what the beef was but I think the blue was between this Canberra mate and Fuller. Now, once again, I didn't see it, I can't say 100 per cent. That's just sort of how I remember it.”
…
“Q 148 What's this fellow look like? How would you describe him?
A … He, he's not, he wasn't a pretty man, he wasn't a fuckin' big man, he was a, a, a, to me he looked, ah, weathered, um, ah, 40 year old, maybe. 50 at the most. I, I, I don't sort of look at guys to know, guess their ages. But, um, he didn't, he, he, he was, there was whisper, whispers about him being a heavy from Canberra. He was come, he was up to, um, bounce somebody and, and, and he obviously had been involved in some sort of altercation. And he looked to be the, the loser of an altercation.”
…
“Q166 Was there anything distinguishing about him?
A Um, no. I just, I just thought, um, he doesn't look like a fuckin' heavy. That's, no, I can't think of anything that stood out, like, he didn't have a mo, he didn't have fuckin' scars on him. He, he just looked like - - -“

In his second ERISP Mr Garland made the following category B admission:

“A I'm, I'm a person of my word and, er, and it, and I was put in, put into a corner where I owed a favour, it was either pay it or I'm not a person of my word. Um, I didn't, uh, fully understand, uh, the, the whole reason it wasn't explained to me, yes, I'm dropping him off to, to stay there, yes, I'm dropping him off to do this or pay that back. Um, er, days earlier, the, I think days earlier, there'd, there'd been some sort of altercation between Stewie, uh, I call, call him Stewie as a friend, but I'm gunna say Stuart as a fuckin' ass hole. There was, there was discussions where Stuart and, and his Canberra friend and, and an, and other people were involved in some sort of altercation or a bashing. Um, I wasn't provy to, to, er, knowledge of this prior or afterwards. I'd only heard in the chats that it'd been spoken around at, at, um, Melissa's place at, which was actually Stewie's place the, we didn't know whether he owned or rented, or whatever, it was all storage, same everything, or both. Um, I, I, I didn't know the full reason why I was taking him to, his words, er, was short and sweet as to keep, um, whatever was happening amongst themselves I, I believe. Uh, can I take his friend to, uh, Stockton, No, I don't want to, I got to go and, got to go and see Dani, it's more important, You owe me, blah, blah, blah. All right. I decided I'll run him over there and then go back to, um, Dani's then. We drove to Stockton - - - “

Category C

Category C involves admissions by Mr Garland that connect Mr Hawkins with an altercation that happened against an associate Mr Fuller on an unspecified date prior to the alleged murder.
The prosecution noted that this evidence had little probative value in the case against Mr Garland and can redacted without prejudice to any party. Counsel for Mr Garland ultimately agreed they could be excised.
In his first ERISP Mr Garland made the following category C admission:

“Q 132 Do you know his name at all?
A … But, ah, he, 1 day I went to the property at Argenton, number 1, whatever street that was, across the road from the pub, ah, Stuart was there. And he said, He's my, he's a, um, a mate of mine from, ah, Canberra. Ah, there was, like, secret whispers, like um, he's, ah, a heavy that's, blah, blah, blah. And, ah, are yeah, right. And he'd been in a altercation with somebody. Now just from my memory, I'm, and I've got no memory, um, I thought it was Fuller that he got in this punch on, punch up, with. And he looked to me to be the loser of this little thing for somebody. He was a small guy. Um, I, I couldn't understand, um, like, the, the heav, the heavy thing. But, um, I didn't know what was goin' on. I don't know what the, what they're beef was. Um, I don't know whether one robbed, ah, the house, Stuey's house, or Fuller, I don't know what the beef was but I think the blue was between this Canberra mate and Fuller.”

In his second ERISP Mr Garland made the following category C admissions:

“Q144 All right. And this is the bashing you mentioned in the previous interview possibly involving, um - - -
A I, I'm not sure it was a ca, he, uh, Canberra.
Q145 You, you mentioned a Fuller last time is that what you're, is that the bashing you're referring to, the - - -
A Er, yes. That's the only thing I did know about that there'd been a bashing of, he bashed him or he, they bashed each other for - - -
Q146 So - - -
A - - - whatever reason, I don't know.”
…
“Q151 [12:17] All right. And you, and, and as you said, you didn't know, the fella that got out, Canberra, was, um, you didn't know anything specific what he was gunna do. It was just the circumstances that made you feel that something - - -
A Just the circumstances that, that was unfolding made me feel as, as if that he was here to, not to just to get dropped off, he was here to, I thought to square up a bashing on Fuller, maybe.
Q152 Yep.
A If it was Fuller.”
…
“Q176 Why?
A Because of the, by this time, uh, we stopped over somewhere else and here. And I thought he was, he'd square up. 'Cause I think he got the bashing, the, on the fe, previous - - -
Q177 All right.
A - - - occasion.”
…
“Q182 Um, and by that I assume you meant he got his bag.
A I didn't see what he get out of the boot, um, Fuller had a baseball bat, er, the, the first, er, that he would, used to wave around doing his tough guy stuff with. So I'm assuming that was used in the, fe, on the first occasion. This guy could have been getting a similar we, um, bat, I guess, I don't know, I didn't see any weapon or any baseball bats, or whatever.”

Category D

Category D involves admissions that shed light on Mr Garland’s subjective belief that the trip to Stockton was to bash somebody.
Portions of these admissions contain references to an earlier bashing. The prosecution’s view is that these portions are not problematic because they do not connect Mr Hawkins to the bashing, and do not require to be redacted.
In his first ERISP Mr Garland made the following category D admissions:

“Q328 How would you describe the bag?
A Um, I'm guessing again. It looked like a bigger, ah, it's like, like, a, not a small sports bag, a bag that would carry clothes. I said, What's happening? He said, Can you wait here? And the first thing was, is he's, he's checkin' whether, whether they're there. Um, and then he just came back a fuckin' mess. Like, heavy breathing, and, and, um, just a, erratic as fuck. Let's get out of here. And off we drove. He didn't talk about what he'd done. And I knew he, it sounded, it felt like he'd done more than gone and bashed somebody. I didn't know there'd been a shooting. I didn't hear a shooting. That's the honest truth. Um, and I, but, but, Let's fucking get out of here. Like, in a, a erratic, ah, voice. And I did. And I couldn't get him out of the fucking car quick enough.”
…
“Q346 All right. Um, did you have your phone on at the time?
A Um, I, I, according to records I, I haven't. But, but I, I turned it off at some stage, but I have no recollection of, of, ah, turning it off. Um, if there'd been, if someone was going to get bashed over there, which was, which was my, my first thought that was happening, 'cause something like that had happened days earlier. Um, I, I'm only assuming this myself. I thinkin', why? I don't want my car being mixed up with somebody that's gettin' bashed. So I, I, I've had this thing that my phone's tracked, or getting, it leaves a track of where you're going. So I've just had this little spin out in me head, and turned it off.”

In his second ERISP Mr Garland made the following category D admissions:

“Q60 [12:01] Ju, but, just to stay on specific answers that I'm af, asking you. His words were, your, I think what I'm trying to say is, all he said to you was, Take my mate to Stockton, is that it?
A Can you take my mate to Stockton? He, er, fe, he didn't give me a reason.
Q61 Right.
A Yes or no, the, I'm going over there to bash someone - - -“
…
“A I had no conversation with Canberra at, at any stage as to why we were going to Stockton. He, there was no, never ever a conversation where Canberra told me, I'm going over there to bash someone, I'm going there to shoot someone, I'm going over there for any reason whatsoever. And, er, I didn't want to know what reason they were going over there for.”
…
“A Uh, he just said, I just need to get out for a minute till I got, I need to get out for a bit. I'm thinking he's looking for this same street. Now, whether this is to stay, which was te, like, looking like not. Whether it was to square up from the bashing earlier was the, was my main thought or he's gunna bash somebody and we're going.”
…
“A Ca, ca, 'cause, 'cause he's asked me to park in this side street in the dark and disappears for 5, 6 minutes and asked me to wait. This isn't what, what I signed up for. This is not what I, I was told was happening. This is not what I thought was going down. And then I'm thinking, Right, this is a square up from the bashing that happened days earlier.”
…
“Q148 All right.
A Canba, ca, uh, Canberra, Campbell never at any stage said, Listen, I want you to take, take Canberra, my mate over here to Canberra, uh, to Stockton to, to bash Fuller. I know, had no idea where Fuller lived anyway, still don't. So I at, never at any stage did he say, This is what I want you to do. I want you to take him over there, 'cause I got to bash Fuller or square up with whatever. I didn't know of any other altercations Campbell had with other people, um - - -“
…
“A Cause he's obviously up to no good if he's just off doing something.”
…
“Q244 Did you say to him, what the, what the hell just happened?
A No. I, I didn’t want to know and I wouldn't have asked because if you don't know, you don't know. And if they don't tell you don't know. So I've, I've been like that all my life, if something's none of my business, none of my business. What the fuck, where we going, where you going now, what are we doing, It, all, things like that would have been said, take me to fuckin' Stewie's house and would have made a, not fucking, take me to Stewie's house. I'm thinkin', I can't get there quick enough, get this person out of my car and fuckin' go and see my girl. And then I just was all, the picture wasn't, it was just lookin' bad, things he'd, the thing about the shell, ah, the, the sussness of the parkin' in the dark and parkin' there. It's still I'm not thinkin' murder at any stage, because I didn't know nothin' about a murder at any stage. Something illegal's happened, yes.”

Category E

Category E involves admissions that the prosecution submits are irrelevant and/or speculative and it has been agreed that they can be redacted without prejudice to either party.
In his first ERISP Mr Garland made the following category E admissions:

“A … But the guy that, um, that did it, the Canberra guy - - -
Q521 Mmm.
A ---and that's all I know him as,is a,he's name may come to me. But there's some, so three or four other names. So that's where the confusing part is. Um, this, no. Um, it might have been Jeff. 'Cause who else was in the car? There was four people. Don't know male or female. I don't know where they were goin', or what they were fuckin' doin', but this Canberra guy was supposed to have been in it. The, the four of them were interviewed, ah, Jeff was one of them, because he was living at that house, I think.”
…
“Q 531 Was Jeff aware at that time that the Canberra guy was the shooter?
A Oh, I wouldn't know. This, it was the next day, wasn't it?”

In his second ERISP Mr Garland made the following category E admissions:

“Q350 So you've taken this other fellow over, Canberra, who apparently has shot her. Why has he taken part, do you know?
A No idea. Campbell, Campbell's come from, got some past or history from Canberra, or that area. I don't know where he's, I was told he had a fuckin' million dollar property somewhere with fuckin' cars and motorbikes on it. I was told all sorts of stories. Um, I've got no idea his relationship to Canberra. Never have had, never, never had previous, never had then, and still don't know anything about him. I didn't want to fuckin' know. He's doin' background checks on me. I've never done a background check on either of 'em.”
…
“Q471 Do you agree that, um, when we spoke before the interview started and you said you'd since heard that the person that was in the car with you was by the surname of Hawkins?
A Yes.
Q472 How did you hear that name?
A Um, through a sweeper comin' to the door.
Q473 What, what does that mean?
A The people that have, give out the meals and things in the pods.
Q474 What did that person say?
A Put the paper up to the window---
Q475 What sort of paper?
A - - - with my statements on it.
Q476 What---
A I said, Who's got, who's given you this? He said, Hawkins next door.
Q477 When did this happen?
A Oh, I'm not sure, but it was just prior to me going to the yard or just after. So that - - -
Q478 OK.
A That date will be 3 or 4 days ago, I dunno.
Q479 Did he say anything else other than, Hawkins next door? A The sweeper?
Q480 Yeah.
A No. He, ah, he put it there for me to read. I said, I can't see it, I can't, I haven't got very good eyes, poked it under the door. He said, I need it back. And I, and I've read it quickly, like very quickly. And put, put it back to him , and off he went.
Q481 [13:25] So what makes you think that the surname Hawkins relates to the person that was in your car?
A He's, he's, he's, I think it was because it was him that gave, Hawkins gave the paperwork with my name on it to the, to the sweeper.
Q482 And from that you've drawn the conclusion - - -
A Yes.
Q483 - - - that the person in your car, his name's Hawkins.
A Yes.”

Admissions made to witnesses

Mr Garland also made admissions to various witnesses, and his departure and return to his home on the night of the murder as well as his presence in Stockton, can be established by the evidence of those witnesses and the CCTV compilation. It is unclear whether Mr Garland admits saying the things attributed by the witnesses but, in at least one instance, there is a dispute about some of the details:

“HIS HONOUR: I'm not sure how that works in a case where both of them admit they got in the car, and one of them says, he got out, and I don't know where he went, and he came back and he had blood all over him. And the other one says, oh no I got out of the car a bit before we got to Stockton. That's a bit different, I think, but I'll read--
HUGHES: Just to correct your Honour, I don't think that Mr Garland ever said he got back and had blood all over him. One of the witnesses back at the State of Origin house attributes that to him, but that's not something he ever said.
HIS HONOUR: I see. It's what someone said he said.
HUGHES: Yeah. Yep.” [7]

Dillon McDougall, an associate and past roommate of Mr Garland, was interviewed by police on 7 December 2021 (“McDougall ERISP”). Mr McDougall said that Mr Garland made the following admission a few hours after the murder:

“So what did he tell you?
A He, he said he pulled up in one street, dropped him off, was told to wait there and then not even ten minutes later he was back in the car.
Q825 Yeah. And then what did the bloke, well, what - - -
A Apparently there was no communication between what had gone on. He dropped him in Argy and then that was it, and then he come back and that’s when, when he come back normally he’d, like, walk in the house, say hello to everyone that was there. Sit down on the lounge, have a bit of a chat and then take off to his bedroom. He walked straight in the door and walked straight to his room.
Q826 When did he tell you he dropped the bloke at Argy?
The next, like, later on that night. I was, like, well, where, where’d he go? And he goes, don’t worry. He’s not coming back. He dropped him, dropped him in Argy, ‘cause my biggest thing was making sure that if all this is true, I didn’t want it in my house.”

Keira Thorby, who was Mr McDougall’s carer at the time, made a statement to police on 18 January 2022. At para [25] of her statement she said that Mr Garland spoke to her on the evening of 9 June 2021, after the murder, and made the following admission:

“… I dropped the guy off and picked him up around the corner and he was covered in blood.” [8]

EC, a friend of Mr Garland, made a statement to police on 20 January 2022. At para [25] of her statement she said that Mr Garland spoke to her during the evening or early hours of the morning following the murder. EC said that Mr Garland provided the following version of events:

“… Steve told me that Stewy told him to drive one of his mates to somewhere as a favour. Stewy had asked him to use his own car to do so. When they go to Stockton the bloke told Steve to wait and jumped out of the car and started running. Steve didn’t tell me where he stopped the car and waited. The car wasn’t parked in front of the house because he (sic) way Steve explained it to me, it took the bloke some minutes to return, and he didn’t hear a shot during that time. The bloke then came back to Steve’s car. When the male got back in the car the male had a gun with him. I can’t remember what type. It wasn’t a handgun, but a rifle is ringing a bell. Steve told me that he didn’t see this gun until the bloke got back in the car. The male told Steve do “drive” or “go” or something like that with some type of urgency. Steve told me that he knew that something bad had happened and he was now involved. He didn’t know that someone had been shot or killed.”

AC, a friend of Mr McDougall, gave a statement to police on 14 December 2021. At para [41] AC said that he overheard Mr Garland talking about the trip to Stockton the day after the murder. Mr Garland said the following:

“… The following day I was back at Dillon’s and heard Steve talking to Dillon, telling him he shouldn’t have given Billy a lift last night. He further said, “It’s caused too much problems.”

Legislative provisions and authorities

Section 21(2) of the Criminal Procedure Act provides:

21 Orders for amendment of indictment, separate trial and postponement of trial
…
(2) If of the opinion—
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.

Section 29(3) also relevantly provides:

When more than one offence may be heard at the same time
(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice

In Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 (“Webb”) at 89 Toohey J, with Mason CJ and McHugh J agreeing, expressed the general rule that persons charged with committing an offence jointly should be tried together:

“I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others [Reg. v. Demirok (1976) VR 244 at 254]. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused [Reg. v. Harbach (1973) 6 SASR 427 at 433].
In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put in another way, whether improper prejudice has been created against an accused.”

This case, and many others, emphasise that, generally, there will or should be a joint trial when co-accused raise “cut-throat” defences, that is, when each seeks to blame each other for their liability in the joint criminal enterprise. In other words, the existence of a “cut-throat” defence will not, of itself, support an order for a separate trial: see, for example, R vFernando & Anor [1999] NSWCCA 66 (“Fernando”) at [198]-[212]; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 (“Rogerson and McNamara”) at [61]-[66].
The rationale for the rule was explained by Sheller JA (with whom James J and Smart AJ agreed) in R v Symss [2003] NSWCCA 77 at [68]:

“The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.”

Again, in Fernando the Court discussed the rationale behind the rule that co-offenders should be tried together. For example, the Court surveyed some of the earlier authorities and said:

“199 A convenient staring point is the decision in R v Assim (1966) 2 QB 249. There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:
‘As a general rule, it is of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.’

200 This passage in the judgment of Sachs LJ was quoted with approval by the Court of Criminal Appeal in R v Annakin & Ors, 23 November 1988 where the court observed at p 13:
‘In the ultimate each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice would be caused so as to prevent the accused being given a fair trial.’

201 The court there pointed out that in De Jesus v The Queen (1986) 68 ALR 1 the High Court had reaffirmed the need for the trial judge to examine the matter from the point of view of the prejudice to be caused to the accused, whether he or she would have a fair trial or not.
202 In R v Grondkowski (1946) 1 KB 369 the Court of Criminal Appeal at 373 cited with approval the following paragraph from R v Gibbons & Proctor (1918) 13 Cr App R p 134:
‘It is not enough to say that counsel could have defended them more easily if they had been tried separately … there may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together.’

203 Grondkowski was a case involving cut-throat defences. As we apprehend the passage cited and other passages from the judgment it was considered that cases of that kind are better heard together. The reason for that is the opportunity given to the jury to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them. In Grondkowski it was also said:
‘Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise that it is obviously right and proper that they should be jointly indicted and jointly tried and in some cases it would be as much in the interests of the accused as of the prosecution that they should be.’”

There was some discussion at the hearing as to what was meant when the Court referred to the jury having the opportunity “to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them”. The Prosecutors correctly suggested that this related to a case where the appearance of the alleged offenders may inform the jury’s assessment of their respective cases. This is borne out by an examination of the judgment in R v Grondkowski [1946] 1 KB 369 where it was said (immediately after the passage set out in Fernando at [203]):

“Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous-looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime. Another instance would be the case of an indictment against husband and wife. The latter is no longer presumed in law to be acting under the coercion of her husband, but may nevertheless prove that she was. It would be very desirable, not only in the interest of the prisoners, but of justice, that the same jury should try them both, and it is by no means beyond the bounds of possibility that so far from finding that the wife acted under the coercion of her husband, it might be found that the husband was coerced by the wife, and if the same jury ought to try them, it would be absurd to say that they should be tried separately.”

None of this is to place a gloss on the words of the statute or to erode the breadth of the discretion residing in a trial Judge to make orders to ensure fairness in trials of serious offences. In R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15 (“Qaumi”) I observed at [122]:

“The interests of justice in s 29(3) is an expression of very wide import and the provisions provide the Court with a wide discretion to make orders for the severance of counts and conduct of separate trials of individual accused. The provisions, the cases decided under ss 21 and 29 and the common law which precedes them, require the court to bring into account a wide range of considerations and factual circumstances.”

The principles and relevant considerations are well established and were summarised by Hunt J in R v Middis (Supreme Court (NSW), 27 March 1991, unrep) (“Middis”) at 5:

“Briefly, the relevant principles are that:
1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
… as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises result in positive injustice to him in a joint trial … Obviously enough, all manner of prejudice may be surmised which, if it arises, would not result in such positive injustice. In my opinion, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which - if it arises would result in positive injustice to him.”

This passage is often cited by trial Judges and the NSW Court of Criminal Appeal: see, for example, Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179 at [137] (“Caleo”); R v Newson; R v Cunneen (No 2) [2020] NSWSC 462 at [12] (“Newson and Cunneen”); Hamalainen v R [2019] NSWCCA 276 at [31] (“Hamalainen”); Nader v R [2018] NSWCCA 256 at [59] (“Nader”); R v Roff [2015] NSWSC 1853 at [47] (“Roff”); Regina v Pham [2004] NSWCCA 190 at [38] (“Pham”).
In Pham Adams J considered the principles identified in Middis, stating that inadmissible evidence will give rise to positive injustice against a co-accused when “it is likely to turn a potential acquittal to a conviction” with the likelihood being “real as distinct from inconsequential”. Adams J also expressed doubts as to whether the strength of an applicant’s case is a relevant consideration at [39]-[40]:

“Two phrases in this summary need some explanation. In ordinary speech, ‘immeasurably’ usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant ‘significant, though incommensurable’. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to ‘positive injustice’. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence.
I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant’s case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender’s case is material. Indeed, the opposite would seem to be the case since, if the co-accused’s case was weak, or weaker than the applicant’s, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury’s consideration of the applicant’s case.”

See also R v Hazairin Iskandar; R v Andrew Iskandar & R v Nita Iskandar [2011] NSWSC 1192 at [11] (“Iskandar”); Qaumi at [129]; Roff at [48]; Caleo at [138]; Nader at [59].
In joint trials, when evidence is admissible against one co-accused but not the other, and where that evidence implicates both, the risk of prejudice or embarrassment is inevitable. Often, depending on the circumstances, that risk can be obviated by express and careful directions to the jury that it must only use the evidence that is admissible against the particular accused whose case is under consideration. It is assumed that the jury will understand and follow these directions: Caleo at [134]; Webb at 89; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31].
However, as it was elegantly put by Kirby J in Regina v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649 (“Patsalis & Spathis”) at [6] “there is a rule, and a proviso to the rule.” His Honour went on:

“It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (Oliver (1984) 57 ALR 543).”

An examination of past cases demonstrates that a separate trial will be ordered when the trial judge forms the view that directions to the jury will not overcome prejudice because the evidence may or would sub-consciously affect the jury, unfairly influence their deliberations, be misused or be too difficult to disregard. In such circumstances, the interests of justice may require that the accused be tried separately: see, for example, Newson and Cunneen at [28]; Hamalainen at [95]; Roff at [60]-[68]; Pham at [34], [50]; Iskandar at [34]; R v CE [2005] NSWCCA 326 at [13]-[17]; R v Singh [2011] NSWSC 1371 at [45]. On the other hand, there are many cases where applications for separate trials have been properly refused in deference to “the rule” and on the assumption that juries will follow the directions of the trial judge to consider the cases of each of the accused separately: see, for example, R v Douglas [2000] NSWCCA 27 at [78]-[85]; Patsalis & Spathis at [58]-[59]; Fernando at [222]-[226]; Rogerson and McNamara at [78]; Singh v R; Dhillon v R [2023] NSWCCA 237 at [30]-[31]; Caleo at [149]-[151]; R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482 at [13]-[18]; R v Basanovic and ors (No. 1) [2015] NSWSC 1033 at [25]-[26]; R v Spicer [2013] NSWSC 1907 at [50]-[51]; R v White & ors (No 1) [2012] NSWSC 465 at [45]-[49]; R v Hawi & ors (No 3) [2011] NSWSC 1649 at [48]-[50].
The authorities demonstrate that the appropriate disposition of such an application will turn on a close examination of the facts and evidence in the particular case, the extent of the potential prejudice and the availability of appropriate directions to cure that prejudice. In many cases, and this is one of them, the relevant factors pull in different directions.

Submissions

Mr Hawkins initially submitted that Mr Garland’s admissions to the police and various witnesses suggested:

Mr Hawkins was “supposed to have been some sort of a thug” and that he was involved in some kind of altercation or bashing before the night of the shooting.

On the night of the shooting, Mr Hawkins threw his bag into the boot of Mr Garland’s car and then directed him to drive to Stockton.

Upon arrival at Stockton Mr Hawkins directed Mr Garland where to park. Mr Hawkins got out of the car, took something from the boot of the car and left. He returned 5-10 minutes later, erratic, breathing heavily, sweating; he was “a mess”.

When Mr Hawkins got back in the car he said, “I think I've dropped a shell”, he searched for the shell around and beside the seats and he then put something into the boot.

Mr Hawkins told Mr Garland to keep his mouth shut upon returning to the car.

Mr Hawkins was “covered in blood” when he got back into the car and that he had a gun with him.

Mr Garland drove Mr Hawkins back to Argenton, dropped him in a street near the Victoria Street address, before returning to the Heddon Greta address.

The first of those matters evaporated as the argument proceeded. The Prosecutors indicated that they did not need to lead the evidence – which came in various forms – in which Mr Garland suggested that Mr Hawkins was some kind of thug or had been used by Mr Campbell in an earlier bashing. Initially, counsel for Mr Garland indicated he would seek to lead such evidence, but by the second day of the hearing he had instructions that meant such evidence would not be led either by the Prosecutor or by (or at the insistence of) Mr Garland.
Mr Hawkins argued that the prosecution case against him is circumstantial, and that there is no direct evidence placing him in Stockton at the time of the shooting. His identification in Stockton, and involvement in the events that transpired there, will be the critical issue in his trial.
Mr Hawkins submitted that the admissions made by Mr Garland, which are inadmissible against him, would cause a “positive injustice” because there is a real danger that the jury would sub-consciously (at least) be influenced by the things said by Mr Garland when considering the case against him. It was submitted that the inadmissible evidence could turn “an acquittal into a conviction” because of its capacity to strengthen the prosecution case, and provide support for the circumstantial case to be presented against him. In other words, the things said by Mr Garland could be used by the jury to support the prosecution’s contention that he was in Stockton that night and followed the directions of Mr Campbell to shoot the deceased.
Mr Garland will attempt to persuade the jury that he drove Mr Hawkins to Stockton and picked him up after the shooting, and the issue in his case will revolve around the extent of his knowledge of the joint criminal enterprise. Mr Hawkins submits that the jury will be required to use and assess Mr Garland’s statements to police and others back at the house in making factual findings about Mr Garland’s state of mind and will then find it difficult to completely disregard Mr Garland’s out of court statements when considering Mr Hawkins’ case. Mr Garland’s admissions provides reasonably direct support for the evidence that otherwise identifies Mr Hawkins by inference as being involved in the joint criminal enterprise and, indeed, as the shooter.

Mr Hawkins disputes that this is truly a cut-throat defence. He says that he is not running a case that implicates Mr Garland either as the shooter or as a person who drove the shooter to the scene with knowledge that a murder was to occur. Accordingly, the general rule that a joint trial should be conducted does not apply.
He also submitted that if separate trials were to be held, the costs and inconvenience to witnesses can be minimized, as both trials can be completed within the six-week estimate, a large number of the witnesses will be able to give evidence by way of agreed facts and vulnerable witnesses (e.g., family members of the deceased) will not need to give evidence twice.
By reference to cases like Iskandar at [35]-[36], R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [88] and R v Kearnes; R v Paton [2013] NSWSC 1139 at [47], Mr Hawkins submitted that even with strong and careful jury directions, the jury would be unable to ignore the inadmissible evidence of Mr Garland and that judicial directions would not be enough to overcome the prejudice and positive injustice that would be caused to Mr Hawkins.
The Prosecutors submitted that Mr Hawkins and Mr Garland are running cut-throat defences. Mr Garland claims he was deceived into being the driver by Mr Campbell and Mr Hawkins and was unaware of the reason for the drive to Stockton, while Mr Hawkins claims he was set up by Mr Campbell and Mr Garland, as they dropped him off before the journey to Stockton and must have “replaced him” with the actual shooter. Therefore, the principle that co-accused who run cut-throat defences ought to be tried together should be applied.
The prosecution contends that Mr Hawkins is seeking to exploit the forensic advantage if the trials are severed, in attempting to make Mr Garland an available and compellable witness in his trial. The prosecution notes that Mr Hawkins will still be prejudiced by Mr Garland’s admissions in a separate trial, as that evidence will then be directly admissible against him.
The prosecution also submits that the jury will be able to follow and apply clear directions that they should not consider Mr Garland’s admissions and out of court statements made to police and to witnesses in the assessment of the case against Mr Hawkins. The jury can be directed firmly and clearly that those statements have not been admitted in his trial and can be told that they were not made on oath or been tested by cross-examination. The jury can be given anti-tendency and anti-bad character directions regarding any evidence (currently not pressed) by which Mr Garland asserts or infers that Mr Hawkins is a person of bad character or, as it is put, a “thug”. The Prosecutors submitted that this does not require complex reasoning by the jury as the separate cases and admissible evidence against each accused can be easily identified.
The Prosecutors submitted that if the trials were separated, it is unrealistic to suggest that both trials will be completed within six weeks. The estimate provided during the voir dire was that back-to-back trials may take eight weeks. This was challenged by counsel for Mr Hawkins. The Prosecutors also observed that some of the witnesses are in custody, may be reluctant to give evidence – or actively hostile – and that there is expected to be a variety of applications relating to those witnesses. [9] Getting them to Court more than once may be challenging.
Further, the Prosecutors note that much, if not most, of the evidence is common to the two trials.
In conclusion, the prosecution submits that it would be against the interests of justice, and contrary to the general rule, for the trials to be separated.

Findings, relevant factors, application of the law and disposition

Joint criminality

The allegation is that the two accused currently before the Court were involved in a joint enterprise, along with the now deceased Mr Campbell, to murder Mrs Klimovitch. This is a strong factor favouring a joint trial.

Cut-throat defences

There is a dispute between the parties as to whether the cases to be advanced by the two accused, as they are understood at this stage, involve cut-throat defences by which each accused seeks to lay blame upon the other. The Prosecutors contend, based on the things said by each of the accused to police and to other people, that the case is, self-evidently and clearly, one in which each accused seeks to blame the other. Mr Bickford argues that his client is not running a defence by which he will point the finger at Mr Garland although he acknowledges that Mr Garland’s defence is properly so categorised. As I follow it, the argument is that because Mr Hawkins claims that he alighted from the car before it arrived in the area of the murder, he cannot be said to be attributing responsibility to Mr Garland. His case is that he was not present at the location of the shooting and, accordingly, cannot be seen to be casting responsibility on Mr Garland.
While I would not put the matter in the terms employed by the Prosecutors, and while it is not the classic cut-throat case demonstrated in a number of the authorities, I accept the submission of the Prosecutors on this issue. If this is not an instance of a cut-throat defence, it is something very like it.
A number of the impugned statements of Mr Hawkins to police (the admissibility of which is in dispute) clearly suggest that he was “set up” by Mr Garland, or Mr Campbell, or by both. Even disregarding those statements, the clear inference from his case (that is, he was in the car but was dropped off before it reached Stockton), is that the murder was committed by Mr Garland or another person in his approximate presence. Given that the prosecution case is that Mr Garland drove the shooter to the area of the shooting, Mr Hawkins’ defence can be described as one in which he casts responsibility (direct or derivative) upon Mr Garland.
For the purpose of the application of relevant authority, I categorise the case as one of joint criminal liability in which each accused seeks to cast the blame on the other. It is clear that, in the ordinary course, it is appropriate for the trials to be conducted jointly. That is, to again quote Kirby J in Patsalis & Spathis, “the rule” and the question then becomes whether the facts of this case fall within the “exception to the rule”.

Inconsistent verdicts

The prosecution will submit that both men are guilty of murder; Mr Hawkins on the basis that he shot Mrs Klimovitch with an intention to kill her (or to inflict grievous bodily harm) and Mr Garland on the basis that he drove Mr Hawkins to the scene knowing what would happen. That liability is either derivative (accessorial) or based on a joint criminal enterprise. The prosecution will put an alternative case that Mr Garland is an accessory after the fact to the murder, presumably on the basis that he assisted Mr Hawkins to evade justice when he became aware of what had happened and drove him from the scene.
Whether the trial be conducted jointly or separately, all possible verdicts will be available. I do not see the issue of different juries returning inconsistent verdicts as being a significant issue in the present case. There would be nothing inconsistent in different juries convicting both men, acquitting both men or finding one of them guilty and one of them not guilty. The only possible inconsistency would be a factual one, if the jury acquitted Mr Hawkins but convicted Mr Garland (of either charge). Such a verdict would not be inconsistent in a technical sense. One jury (or separate juries) may be satisfied of Mr Garland’s derivative liability (or find him guilty as part of a joint criminal enterprise) based on his admissions and versions of events implicating Mr Hawkins and reject (beyond reasonable doubt) his case that he knew nothing about Mr Campbell’s plan to have the victim killed, at least until Mr Hawkins returned to the car (and even then). The same (or different) jury might entertain a reasonable doubt about Mr Hawkins’ guilt based on his assertion that he left the car before it got to Stockton, without reference to Mr Garland’s admissions implicating Mr Hawkins. [10]

The strength of the prosecution case against each accused.

While the prosecution case against Mr Hawkins is a circumstantial one, and there is an issue around his identification in Stockton, my assessment of the case against him is that it is very strong. He will concede that he was in the car with Mr Garland when it set off, a short time before the murder took place in Stockton, and there is solid evidence that he met with both Mr Campbell (who had a motive) and Mr Garland (who drove the car) in the days leading up to the killing. Whatever be the fate of the impugned admissions, it will be for a jury to determine whether his, perhaps unlikely, assertion that he knew nothing about the plan to murder Mrs Klimovitch and jumped out the car before it arrived in Stockton along with the possible weaknesses in the identification evidence raises a reasonable doubt about his guilt. That determination will be made bearing in mind the onus is on the prosecution to exclude any reasonable possibility that is not consistent with guilt.
I make a similar assessment of the case against Mr Garland. Again, there is indisputable evidence that he was in the company of the two alleged co-offenders in the days leading up to the murder and, on his own admission, drove from his home to the vicinity of the killing, shortly before the killing, and returned back shortly after. His admissions and other out of court statements, while they assert a lack of knowledge on issues upon which he bears no onus of proof, go a long way towards establishing the factual matters upon which the prosecution case rests.
While the defence cases are different, this is not a case where it can be said that the case against one accused is significantly stronger than the case against the other.

Common evidence and convenience of the witnesses

A great deal of the evidence is common to both trials. This includes (based on the witness list) many civilian witnesses. I accept the Prosecutors’ submission that a number of these witnesses will be difficult (for the reasons set out earlier).
On the other hand, there is a not insubstantial amount of evidence – some of it of real significance – that is only admissible against one or other of the accused.

Taking “tactical advantage” and “throwing mud” at the co-accused in a separate trial in their absence

I reject the submission that Mr Hawkins’ application for a separate trial constituted an attempt to take a “forensic advantage” or “tactical advantage” by having a trial in which he could “throw mud” at Mr Garland by reference to his “bikie links”, in circumstances where the prosecution proposes (or is obliged) to call Mr Garland as a witness if the trials are separated. [11] On the contrary, it is a principled application and a failure to make the application could well have drawn criticism if the matter is examined on appeal. Not only could there have been criticism of counsel, but Mr Hawkins may also be confronted by arguments on appeal that leave should be refused because no such application was made.
Equally, there is no suggestion – including by Mr Bickford – that the prosecution is seeking to gain a tactical advantage by running the trials together and have the jury hear the untested and, in parts, self-serving statements of Mr Garland in which he seeks to cast blame, on Mr Hawkins for the killing, including by calling him a thug and attributing to him previous malfeasance.
Counsel for both sides were able to rely on solid authority in support of their respective positions. The arguments were put persuasively and ethically and any criticism of the application, or opposition to it, is groundless.

Length of trials

I accept the amount of court time occupied by the case will be greater if the trials are separated. I also take that into account as a relevant consideration. However, the extent to which that is so is unclear, as evidenced by the respective estimates provided by the barristers. The original estimate for a joint trial was six weeks; the Prosecutors think that back-to-back trials may occupy the Court for eight weeks and Mr Bickford suggests both trials can still run within the six-week estimate. Even allowing for the first of those estimates to be unduly pessimistic (that is, it is an overestimate) and the second to be an underestimate, the separation of the trial will not cause such a blow out in the estimate that is a matter of great moment if the submissions made have weight.

Mr Garland’s admissions and statements implicating Mr Hawkins

I have set out some of the relevant evidence of what Mr Garland said to police and others at some length. Those passages must be read in the context of the evidence as a whole and I have not set out all of the relevant evidence. The interviews with police are lengthy and contain evidence that is clearly capable of producing significant prejudice in the case against Mr Hawkins if the jury, or some members of the jury, are unable to put Mr Garland’s statements out of its mind when considering Mr Hawkins’ case that he was in the car at first but got out before Mr Garland arrived at Stockton.
I refer in particular, and without repeating the substance of each item of evidence, the following:

Admissions from Mr Garland that directly identifies Mr Hawkins (“Canberra”) to be involved in the shooting:

First ERISP, question 132.

Second ERISP, questions 66, 148 and 151-152.

Admissions from Mr Garland that the jury could infer to be a reference to Mr Hawkins or otherwise be used against him:

Listening device recording p. 19.

First ERISP, questions 37, 302-304, 320, 327-329, 346, 386-390, 441 and 839.

Second ERISP, questions 60-61, 112, 121, 167 138, 178-181 209-211, 219, 226, 232, 244, 250-253, 256, 273-275, 293-295, 313-314, 317-320.

McDougall’s ERISP questions 824-826.

Keira Thorby’s statement at [25].

EC’s statement at [25].

The potential prejudice will be reduced to a degree by the fact that the prosecution will not lead, and counsel for Mr Garland will not seek to adduce, statements going to Mr Hawkins’ bad character or tendency and reputation for violence. However, the evidence goes to the heart of Mr Hawkins’ defence.
A complicating factor are the statements made by Mr Garland when he returned to his home, and to his friends and associates, in particular those mentioned above. The prosecution does not press that evidence in Mr Hawkins’ case. However, some of those witnesses are expected to give evidence relevant to the case against both accused men. That evidence concerns the movements of the men at, and to and from, the house and similar matters.
While I anticipate (without really knowing) that much of the evidence will not be in dispute, the jury will need to evaluate the evidence and assess the credibility of each of the witnesses. From what the Prosecutor has said, there may be real issues as to the credibility of at least some of those witnesses. Mr Hughes has indicated that at least part of the evidence of Ms Thorby is denied. Similarly, the jury will need to consider the veracity and reliability of Mr Garland’s statements to police in the light of their credibility findings as to those witnesses.
A particular issue in this case is the alternative charge faced by Mr Garland. That charge will require the jury to consider, independently and by reference to different evidence (including Mr Garland’s out of court statements), whether the essential elements of murder have been made out against Mr Hawkins. Again, directions could be fashioned to attempt to cure the potential prejudice arising from this, but a jury that is not exposed to the inadmissible evidence will be in a better position to judge Mr Hawkins’ case without reference to that evidence. Whether the trials be held jointly or separately, a finding of guilt against Mr Garland of either murder or accessory after the fact to murder would not be “necessarily inconsistent” with the acquittal of Mr Hawkins for murder because the evidence admissible against each man is different: cfOsland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [14]-[18] (Gaudron and Gummow JJ, dissenting in the outcome), [64] (McHugh J), [230] (Callinan J) while noting the very different factual circumstances and the history of the litigation in that case.
In the context of the immediately foregoing paragraphs, the following remarks of Hulme J (with which Spigelman CJ agreed) in Pham are significant at [7]-[9]:

“However in this case there is a further factor which to my mind compels the conclusion that the trial, so far as the Appellant is concerned, miscarried. During the Crown Prosecutor’s address, very substantial attention was given to the extent to which the accounts given by the two witnesses to whom I have referred were supported by the statements in the Appellant’s brother’s recorded interview. In substance, it was submitted hat the jury could have confidence in the reliability of the evidence of those witnesses because it accorded with, and was supported by similar evidence in the interview.
Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge’s directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown’s principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it.
In these circumstances the trial judge erred, at least after he had admitted the evidence of that interview, in rejecting the Appellant’s application for a separate trial and, as against the Appellant, the joint trial miscarried.”

Directions

I have considered the directions that could be given to a jury called upon to consider separately the cases of these two accused men.
There are clearly directions that can be formulated to attempt to cure the prejudice to Mr Hawkins and some of those directions are relatively straight forward. I have also considered the kinds of directions contemplated by Deane J in Webb at 80.
While, as Hulme J reiterated in Pham it is accepted that juries generally obey directions given to them by trial judges, however there have been many cases where that has not been the case: see Hoang v The Queen (2022) 96 ALJR 453; [2022] HCA 14; R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37; Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325; R v Sio (No 3) [2013] NSWSC 1414; R v JH (No 3) [2014] NSWSC 1966; Director of Public Prosecutions v Lehrmann (No 5) (2022) 373 FLR 253; [2022] ACTSC 296. Those are cases of jury misconduct which are comparatively rare.
In the present case, the greater risk is not deliberate misconduct on the part of the jury (or one or more members of the jury) but the unconscious or sub-conscious impact that a quite substantial body evidence may have on even the most conscientious juror.

Conclusion

Mr Hawkins has made good his arguments in favour of separating the trials.
I am satisfied that there is a real and substantial risk that the most conscientious jury, carefully and fully instructed, may be influenced improperly by the evidence to be admitted against Mr Garland which is not admissible against Mr Hawkins.

I am satisfied that any chance Mr Hawkins may have of being found not guilty may be destroyed by the jury misusing evidence, consciously or sub-consciously, that is not lawfully to be used against him. The better course, for all parties, is that Mr Garland give evidence in Mr Hawkins’ trial and Mr Hawkins has the opportunity to test that evidence in cross-examination.
In the terms of the statute, I have formed the view that Mr Hawkins may be prejudiced or embarrassed by the conduct of his trial jointly with Mr Garland and that it is in the interests of justice that the trials be held separately.
The interest of justice includes the interests of the family, friends and loved ones of Stacey Klimovitch. They need, as much as the judicial process can achieve it, some closure to these proceedings. The separation of the trials will prolong the proceedings to an extent. However, the parties assure me that Mr Hawkins trial will be able to proceed as soon as Mr Garland’s trial comes to an end and, perhaps, if administrative arrangements allow it, shortly after the jury retires to consider its verdicts in Mr Garland’s case. I have taken into account, as part of the administration of justice, that the duplication of evidence may be difficult for Mrs Klimovitch’s family who are keeping vigil over the proceedings, but regret that it is in the inevitable result of the proper application of the law to the facts of this case

Orders

Accordingly, pursuant to ss 21 and 29 of the Criminal Procedure Act 1986 (NSW), I order that Jason Hawkins be tried separately from Stephen Garland.

Endnotes

1. Compare Tcpt, 3 October 2023, pp 6, 20, 25-26 (voir dire day 1) with Tcpt, 4 October 2023, pp 108-109 (voir dire day 2).

2. Tcpt, 4 October 2023, p 109.

3. Prosecution Written Submissions at [21]; Tcpt, 3 October 2023, 37; Tcpt, 4 October 2023, 106.

4. This became Ex VD-1.

5. Ex VDA.

6. This part of Mr Bickford’s summary has been struck through because it has been removed in the updated prosecution case statement dated 26 September 2023.

7. Tcpt, 4 October 2021, p 104.

8. Tcpt, 4 October 2023, p 111.

9. As noted above, at least one aspect of this conversation is in dispute.

10. For example, applications to cross-examine them as unfavourable witnesses under s 38 of the Evidence Act 1995 (NSW) (“EA”), objections (by the witnesses) under s 128 EA (privilege against self-incrimination) and applications for directions that their evidence may be unreliable under s 165 EA.

11. See Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [100].

Decision last updated: 18 December 2023

Medium Neutral Citation:	R v Hawkins; R v Garland [2023] NSWSC 1201
Hearing dates:	3, 4 October 2023
Date of orders:	9 October 2023
Decision date:	09 October 2023
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Pursuant to ss 21 and 29 of the Criminal Procedure Act 1986 (NSW), order that Jason Hawkins be tried separately from Stephen Garland.
Catchwords:	CRIMINAL LAW – separate trial application – accused jointly charged with murder – where each accused claims to have been set up by the other and a third co-accused now deceased – where one accused provided lengthy interviews to police – not admissible in the trial of the other – statutory test – application of authorities – whether single jury can make credibility findings in one case and disregard such findings in the other – where first accused compellable to give evidence in second trial –whether general rule relating to cut throat defences applies in particular circumstances – substantially different defences – extent to which evidence common to both cases – potential for prejudice and embarrassment – capacity of judicial directions to cure prejudice – whether order may result in inconsistent verdicts
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29(3) Evidence Act1995 (NSW), ss 38, 128, 165
Cases Cited:	Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179 Director of Public Prosecutions v Lehrmann (No 5) (2022) 373 FLR 253; [2022] ACTSC 296 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Hamalainen v R [2019] NSWCCA 276 Hoang v The Queen (2022) 96 ALJR 453; [2022] HCA 14 Nader v R [2018] NSWCCA 256 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 R v Basanovic and ors (No. 1) [2015] NSWSC 1033 R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482 R v Douglas [2000] NSWCCA 275 R v Grondkowski [1946] KB 369 R v Hawi & ors (No 3) [2011] NSWSC 1649 R v JH (No 3) [2014] NSWSC 1966 R v Newson; R v Cunneen (No 2) [2020] NSWSC 462 R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15 R v Roff [2015] NSWSC 1853 R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259 R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37 R v Spicer [2013] NSWSC 1907 R v Symss [2003] NSWCCA 77 R v White & ors (No 1) [2012] NSWSC 465 R v Sio (No 3) [2013] NSWSC 1414 R vFernando& Anor [1999] NSWCCA 66 Regina v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649 Regina v Pham [2004] NSWCCA 190 Singh v R; Dhillon v R [2023] NSWCCA 237 Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Category:	Procedural rulings
Parties:	Rex Jason Hawkins Stephen Garland
Representation:	Counsel: B Hatfield SC and R Meagher (Rex) B Bickford (Hawkins) T Hughes (Garland) Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Hugo Law Group (Hawkins) SANS Law (Garland)
File Number(s):	2021/00336983; 2021/00356964
Publication restriction:	The witnesses’ names have been anonymised to comply with non-publication orders made on 10 October 2023.