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Supreme Court 10 September 2020

R v Hawkins

[2020] NSWSC 1228

Homicide
CRIMINAL LAW SUBPOENA ACCUSED CHARGED WITH MURDER LEGITIMATE FORENSIC PURPOSE

Citation: R v Hawkins [2020] NSWSC 1228
Court: Supreme Court of New South Wales
Date: 10 September 2020
Judge: Lonergan J

Background

The accused faced trial for the murder of a man shot dead at his home in Maryland, NSW on 8 December 2018. The Crown case relied significantly on three witnesses who had been with the accused around the time of the shooting: the deceased's stepbrother, the stepbrother's partner, and the accused's girlfriend. The defence case raised self-defence, contending the deceased had something in his hand when he emerged from his garage.

Just over two weeks before the trial was due to commence, the Crown served a subpoena on the Department of Communities and Justice seeking, among other things, audio recordings of all phone calls the accused had made from gaol to those three witnesses. The officer in charge had only recently realised these calls might contain material relevant to the witnesses' credibility and the events of the day of the shooting.

The accused's legal representatives objected to the subpoena, raising concerns about its very late timing, its breadth, and whether the Crown should have access to the material at all. The dispute came before Lonergan J to resolve.

  • Whether paragraph 4 of the Crown's subpoena should be set aside, in whole or in part, under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW)
  • Whether r 33.4 of the UCPR applied to criminal proceedings in the Supreme Court, via r 75.3 of the Supreme Court Rules 1970 (NSW)
  • Whether the subpoena had a legitimate forensic purpose, specifically whether it was "on the cards" that the calls would contain material relevant to the Crown case
  • Whether, if access was to be permitted, the defence should have first access to the produced material

Decision

Lonergan J confirmed that r 33.4 of the UCPR applies to Third Schedule criminal proceedings in the Supreme Court by operation of r 75.3 of the Supreme Court Rules 1970 (NSW), and that this was the appropriate procedural vehicle for addressing the defence's objection. Section 227 of the Criminal Procedure Act 1986 (NSW) was found not to assist, as it appeared to apply only to producing persons or organisations rather than to the parties.

The court applied the established test for subpoenas: whether there is a legitimate forensic purpose, in the sense that it is "on the cards" that the produced material will be relevant. Lonergan J assessed each of the three witnesses in turn. The calls to Nakita Martyn were found not to clear this threshold, as Ms Martyn had given a detailed statement to police and there was nothing specific to suggest the calls would reveal anything material about her evidence or reliability.

By contrast, the court found the test was satisfied for calls to Sarah Hardes and Scott Woodward, but only for specific time periods. For Ms Hardes, calls in March and August 2020 were considered likely to contain discussion of her involvement in the events and whether she would be required to give evidence. For Mr Woodward, calls in March 2020 and in August 2020 were identified as the relevant period, coinciding with a public interest immunity hearing and the period when the decision about Ms Hardes' evidence was communicated.

The court acknowledged some arbitrariness in drawing date-specific limits but held that a line had to be drawn at a point suitably proximate to the relevant events. The timing of the subpoena also drew criticism. The Crown's late pursuit of this material was described as being in complete disregard of the s 142 Criminal Procedure Act notice requirements and Practice Note SC CL 2, both of which require full disclosure of the Crown case no later than eight weeks before trial.

Orders Made

  • Paragraph 4 of the subpoena was set aside except for the following categories of calls:
  • Calls made by the accused to Sarah Hardes between 1 March 2020 and 31 March 2020, and between 1 August 2020 and 9 August 2020
  • Calls made by the accused to Scott Woodward between 1 March 2020 and 27 March 2020, and between 7 August 2020 and 21 August 2020
  • The hard drive produced to the Court on 31 August 2020 containing all calls was to be returned to the Department of Communities and Justice
  • The Department was required to produce to the Court only the audio recordings identified in the orders above
  • The defence was to have first access to the produced material, with the Crown to have access as soon as practicable thereafter
  • Subsequent orders varied the production time to 11:00 am on 4 September 2020

Key Takeaways

  • Rule 33.4 of the UCPR, providing for subpoenas to be set aside in whole or in part, applies to Supreme Court criminal proceedings listed in the Third Schedule, by operation of r 75.3 of the Supreme Court Rules 1970 (NSW).
  • The governing test for a subpoena in criminal proceedings remains whether there is a legitimate forensic purpose, framed as whether it is "on the cards" that the material will be relevant to the proceedings.
  • Breadth alone does not determine whether a subpoena survives scrutiny. The court examined each named witness individually and limited production to those periods where a legitimate forensic purpose could be identified.
  • Late service of a Crown subpoena in disregard of pre-trial disclosure obligations under s 142 of the Criminal Procedure Act 1986 (NSW) and Practice Note SC CL 2 will attract direct criticism from the court, even where some part of the subpoena is ultimately upheld.
  • Where material is produced pursuant to a subpoena in circumstances involving potential prejudice to the accused, the court retains a discretion to order that the defence have first access before the Crown, allowing for any further objections to be assessed.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 142, s 227
- Evidence Act 1995 (NSW)
- Supreme Court Rules 1970 (NSW), r 75.3
- Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases:
- Mann v The Commissioner of Police [2020] NSWSC 369