Citation: R v Hawkins (No 6) [2020] NSWSC 1401
Court: Supreme Court of New South Wales
Date: 13 October 2020
Judge(s): Lonergan J
Background
The accused stood trial for the shooting murder of the deceased on 8 December 2018. The Crown alleged the shooting arose from an earlier altercation in which the accused claimed the deceased had stabbed and threatened him. The accused pleaded self-defence.
A prior ruling had permitted tendency evidence to be led at trial, directed at establishing the deceased's tendency to use weapons and make verbal threats. That tendency evidence centred on an incident on 30 November 2018, witnessed by a neighbour, in which the deceased allegedly chased a young man down the street wielding a baseball bat.
The deceased's partner, who gave evidence about that incident, acknowledged that the deceased used her mobile phone because he did not own one. A dispute arose on day 13 of the trial about whether a complete extract of text messages from her phone on the evening of 30 November 2018 should be admitted into evidence.
Legal Issues
- Whether the complete extract of text messages from the deceased's partner's phone on the evening of 30 November 2018 (MFI 16) met the test for relevance under s 55 of the Evidence Act 1995 (NSW)
- Whether certain specific messages, including those sent to an unidentified number and a message naming a third party's associates, should be excluded on the basis that their relevance to the tendency evidence was unclear
Decision
Issue 1: Relevance under the Evidence Act
Section 55 of the Evidence Act 1995 (NSW) defines relevant evidence as evidence that could rationally affect, directly or indirectly, the probability of the existence of a fact in issue. The deceased's tendency to make threats and use weapons was a live issue at trial (at [15]-[16]). Because the deceased's partner acknowledged that the deceased was likely using her phone that evening, the outgoing messages were attributable to him for the purpose of assessing relevance (at [9], [19]).
Issue 2: Messages to the unidentified number ending in "0353"
The Crown submitted that messages to this number fell outside the scope of the tendency evidence because they were not part of the identified exchange with "Prue" and their relevance was uncertain (at [13]). The defence argued that the messages were inferentially between the deceased's partner and her brother Blain, who was connected to the 30 November incident, and that the reference to things being "hectic" invited inferences available to the jury (at [14]).
Lonergan J accepted that the significance of individual messages might not become clear until all the evidence was in. Her Honour reasoned it would be wrong to exclude messages at this stage simply because their meaning was presently uncertain to both parties (at [17]). The extract as a whole contained multiple threats, demands, and communications apparently involving the individuals at the centre of the 30 November incident (at [18]).
Issue 3: The 10:50 pm message identifying associates
The message sent at 10:50 pm, which appeared to identify the persons with whom Ben Matheson associated, was found to be relevant. Lonergan J accepted the defence submission that it could be read as providing information about Matheson's whereabouts or connections, which gave it sufficient connection to the tendency evidence context (at [14], [19]).
Orders Made
- The complete extract of text messages (MFI 16) from the deceased's partner's phone on 30 November 2018 between 6:56 pm and 10:50 pm was admitted into evidence and could be tendered.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), the relevance threshold is broad: evidence need only be capable of rationally affecting the probability of a fact in issue, directly or indirectly (at [15]).
- Where a witness acknowledges that a third party was likely responsible for outgoing messages sent from her phone, those messages may be treated as attributable to that third party for the purpose of a relevance assessment (at [9], [19]).
- Premature exclusion of evidence mid-trial is not warranted where the precise significance of individual messages remains uncertain and may only become apparent once the full body of evidence is before the court (at [17]).
- Tendency evidence about the deceased's propensity to make threats and use weapons was capable of being contextualised and supported by text messages sent on the same evening as the tendency incident, even where the identity of some message recipients was not established (at [16]-[18]).
- A collection of messages forming a continuous extract from a single phone need not be severed into admissible and inadmissible portions simply because some messages do not fit neatly within the specific exchange most obviously connected to the tendency evidence (at [17]-[19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated