Citation: R v Hawkins (No 3) [2020] NSWSC 1339
Court: Supreme Court of New South Wales
Date: 18 September 2020
Judge(s): Lonergan J
Background
The accused stood trial for a shooting on 8 December 2018. The Crown called a critical eyewitness who had been the deceased's partner and was present both at the shooting and at an earlier altercation between the accused and the deceased. The witness had provided five statements to police and her account was expected to be challenged by the defence.
The Crown applied by notice of motion for the witness to have her grandfather present in an AVL (audio visual link) suite in Newcastle while she gave her evidence. The witness was giving evidence remotely rather than attending court in Sydney, an arrangement to which the defence had already consented.
The application was supported by an affidavit from the DPP's solicitor recording the witness's own account of her anxiety, but no medical or psychological evidence was filed. The accused opposed the application on grounds of fairness and potential prejudice.
Legal Issues
- Whether the court had power or sufficient basis to allow a support person to be present with a witness who does not fall within the categories prescribed by s 306ZK of the Criminal Procedure Act 1986 (NSW)
- Whether the witness's self-reported anxiety and distress, without supporting medical or psychological evidence, was sufficient to justify a support person
- Whether the presence of the proposed support person in the AVL suite created a risk of unfairness to the accused
Decision
Lonergan J refused the application. Her Honour accepted that the events of 8 December 2018 would have been deeply distressing for the witness, but found that sympathy alone could not ground the order sought. No medical or psychological evidence had been tendered to establish either that a support person was necessary or that one would alleviate the stress of giving evidence.
Her Honour noted that the witness did not fall within any of the categories of witnesses for whom a support person is prescribed under s 306ZK of the Criminal Procedure Act 1986 (NSW). That statutory scheme reflects a deliberate legislative choice about which witnesses warrant this form of assistance, and the court was not prepared to extend it without compelling material.
The physical limitations of the AVL arrangement added a further concern. The courtroom display showed only the witness from the shoulders up, meaning the court, jury, and parties could not observe whether a support person in the AVL suite was gesturing, nodding, or otherwise assisting the witness during her evidence. Her Honour noted that this was not to suggest such conduct would occur, but that the perception of potential unfairness had to be prevented where possible.
The proposed support person was also not truly independent. The affidavit described him as the witness's "rock throughout the proceedings," which led her Honour to infer it was almost inconceivable that the witness had not discussed the events in question with him. Her Honour indicated that the outcome might have differed had expert psychological evidence been provided demonstrating the necessity of a support person.
Orders Made
- The notice of motion filed in court on 18 September 2020 is dismissed.
- The witness is not permitted to have the nominated support person present in the AVL suite while giving her evidence.
Key Takeaways
- Section 306ZK of the Criminal Procedure Act 1986 (NSW) identifies specific categories of witnesses entitled to support persons; a witness who falls outside those categories faces a considerably higher threshold for obtaining such an order.
- Self-reported anxiety and distress, without corroborating medical or psychological evidence, was insufficient to justify the presence of a support person in this case.
- Where AVL evidence is given, the court's inability to observe the full AVL room creates a legitimate concern about the capacity to monitor a support person's conduct, which weighs against permitting one to be present.
- A proposed support person described as deeply involved in a witness's experience of the proceedings is unlikely to be regarded as sufficiently independent to allay concerns of potential prejudice to the accused.
- Lonergan J explicitly left open the possibility that appropriate expert evidence establishing necessity could lead to a different outcome in a future application of this kind.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 306ZK
Cases cited: None cited in the judgment.