Citation: R v Hawkins (No 4) [2020] NSWSC 1395
Court: Supreme Court of NSW
Date: 21 September 2020
Judge(s): Lonergan J
Background
The accused stood trial for the shooting murder of a man at his premises on 8 December 2018. The Crown alleged the accused returned to the deceased's property after an earlier altercation and shot him deliberately. The accused raised self-defence, claiming the deceased came towards him with what appeared to be a gun.
The deceased's partner was an eyewitness to both the altercation and the shooting. She gave four statements to police, the first taken on the night of the shooting itself, and her evidence in chief proceeded over several hours.
Near the close of her examination in chief, the Crown applied under s 32 of the Evidence Act 1995 (NSW) to permit the witness to refresh her memory from her initial statement about two specific details she had not reproduced in her oral evidence.
Legal Issues
- Whether the preconditions for a memory-revival order under s 32 of the Evidence Act 1995 (NSW) were satisfied in respect of two disputed aspects of the witness's evidence
- Whether permitting the witness to revive her memory from her police statement would be unfair to the accused, having regard to s 192(2)(b) of the Evidence Act
- Whether the apparent discrepancy between the witness's statement and her oral evidence reflected a genuine failure of recollection or a deliberate withholding of evidence
Decision
Issue 1: The satchel detail
The first matter concerned the witness's statement that the accused carried a black satchel when he first arrived at the premises. In oral evidence, the witness said she could not remember and ultimately suggested he did not have one. Defence counsel conceded this aspect was an appropriate subject for a s 32 ruling (at [10]).
Issue 2: Words spoken by the deceased on the driveway
The more contested matter involved words the witness had attributed in her statement to the deceased during the altercation on the driveway, which she did not mention in her oral evidence. Defence counsel argued the omission may have been deliberate, as those words could undermine the accused's self-defence case by demonstrating anger and potential aggression on the deceased's part (at [11]).
Reasoning and conclusion
Lonergan J found it difficult to conclude that the witness had deliberately withheld the evidence about what the deceased said. The witness had already described the argument in abusive terms before the jury, and the Crown submitted she had not disavowed that the deceased spoke angrily (at [12], [16]). The Court considered it would be unfair to the witness not to permit memory revival from a statement made on the day of the events, unless deliberate untruthfulness could clearly be established (at [15]).
Any residual unfairness to the accused was addressed by the availability of cross-examination. The Court also noted the significance of the statement's contemporaneity: it was signed and given to police on the day of the shooting, before the witness could have known self-defence would later be raised at trial (at [17]). Leave was granted in respect of both aspects (at [18]).
Orders Made
- The Crown application for the witness to revive her memory in court is granted, permitting her to refresh her memory from her 8 December 2018 police statement regarding what she heard the deceased say to the accused on the driveway and regarding the accused's alleged satchel.
Key Takeaways
- Under s 32 of the Evidence Act 1995 (NSW), a court may permit a witness to revive memory from a prior statement where there is a genuine difficulty in recollection, particularly where the statement was made close in time to the events described.
- Lonergan J applied s 192(2)(b) to assess fairness both to the witness and to the accused, treating the two considerations as distinct and requiring separate analysis.
- A statement made to police on the day of a shooting carries particular weight as a contemporaneous record, supporting the grant of leave under s 32 even where the witness's oral account diverges from it (at [17]).
- Where a court cannot clearly conclude that a witness is deliberately withholding evidence, the preferable course is to allow memory revival and leave any remaining unfairness to be addressed through cross-examination (at [15], [17]).
- The circumstance that a witness could not have known at the time of the statement that a particular defence would be raised at trial was a factor weighing in favour of permitting memory revival from that statement (at [17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated