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Supreme Court 29 September 2020

R v Hawkins (No 2)

[2020] NSWSC 1331

Homicide
CRIMINAL LAW EVIDENCE PHONE CALLS FROM GAOL ASSESSMENT OF PROBATIVE VALUE ASSESSMENT OF PREJUDICIAL EFFECT DANGER OF MISUSE OF EVIDENCE

Citation: R v Hawkins (No 2) [2020] NSWSC 1331
Court: Supreme Court of New South Wales
Date: 29 September 2020
Judge: Lonergan J

Background

The accused faced trial for murder, alleged to have fatally shot a man at his home on 8 December 2018 following an earlier altercation involving a motorbike dispute. A friend of the accused, Scott Woodward, had been listed as a Crown witness but was removed from that list shortly before trial. The Crown had also indicated police would take a further statement from Woodward, but no such statement was ever taken.

While in custody, the accused made phone calls to Woodward in March 2020. Two of those calls, on 22 and 24 March, contained exchanges in which the accused discussed the prospect of his lawyers meeting with Woodward, and at one point said he hoped Woodward would "back up my story or whatever. Pretty much." The Crown proposed to tender these portions of the calls into evidence if the defence called Woodward as a witness, or sought to cross-examine him on their contents.

The defence brought a preliminary application to exclude the identified portions of both calls under s 137 of the Evidence Act 1995 (NSW), arguing their probative value was outweighed by the danger of unfair prejudice to the accused.

  • Whether the identified portions of the gaol phone calls should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused.
  • Whether the exchanges carried sufficient probative weight to justify admission, including whether the volume of prior calls between the accused and Woodward supported an inference of witness-coaching.
  • Whether any jury direction could adequately remedy the prejudice arising from the calls if admitted.

Decision

Lonergan J ruled that the identified portions of the calls were inadmissible under s 137 of the Evidence Act 1995 (NSW). Her Honour characterised the exchanges as naive conversations between friends about what the accused imagined the process of a defence conference might look like, rather than evidence of any actual impropriety or witness-coaching.

Her Honour declined to draw any inference from the fact that 21 prior calls had been made between the accused and Woodward over the preceding five months. Without objective evidence of what was discussed in those calls, no adverse inference about their content could be sustained.

The central concern was the risk of jury misuse. Lonergan J found the jury might well conclude that the calls were evidence of a real or probable attempt by the accused, or even his lawyers, to dictate what Woodward would say in evidence. This risk was compounded by the remark that the accused's lawyers would "run through everything" with Woodward so he could "back up" the accused's account. Both Crown and defence accepted that the accused's lawyers would never engage in such conduct, but the impression the exchanges might leave with a jury was the problem.

Her Honour concluded the identified passages carried virtually no probative value but posed a significant danger of unfair prejudice of a kind that could not be remedied by any direction to the jury. The potential for the jury to take an adverse and wholly unwarranted view of the integrity of the accused's legal representatives reinforced that conclusion.

Orders Made

  • The identified portions of the gaol phone calls between the accused and Scott Woodward on 22 and 24 March 2020 were ruled inadmissible and could not be led or tendered into evidence.

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded in criminal proceedings where its probative value is outweighed by the danger of unfair prejudice to the defendant.
  • Lonergan J found that naively worded prison phone calls, on their face ambiguous or innocuous, can still attract exclusion where the real danger lies in how a jury is likely to interpret them rather than in what they actually establish.
  • The volume of prior contact between a defendant and a potential witness does not, without more, support an inference about the content or impropriety of those communications.
  • Where the risk of jury prejudice arises from a possible misreading of exchanges involving the conduct of defence lawyers, that prejudice can be particularly acute and may resist remedy by judicial direction alone.
  • In assessing probative value, the Supreme Court distinguished between what the evidence logically proved and the danger that the jury would treat it as proof of something far more serious than the exchanges actually demonstrated.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137

Cases cited:
- None cited in the judgment.