Citation: R v Hawkins (No 5) [2020] NSWSC 1410
Court: Supreme Court of New South Wales
Date: 14 October 2020
Judge(s): Lonergan J
Background
The accused stood trial for a shooting at a residential address in Maryland on 8 December 2018. Lisa Chaffey, a Crown witness, had driven the accused and his girlfriend, Ms Hardes, to the deceased's address and then driven them away after the shooting occurred. Chaffey had no prior knowledge of what was to happen and was simply providing a lift.
The Crown's case depended in part on evidence from another witness, Nakita Martyn, who stated that both the accused and Ms Hardes entered premises at 4 Kenneth Street, Wallsend after the shooting, and that in that setting the accused made certain admissions. Chaffey's account conflicted with Martyn's: Chaffey said in her February 2019 police statement, and again in her trial evidence, that Ms Hardes remained in the car when they arrived at 4 Kenneth Street and did not go inside.
On day 12 of the trial, the Crown sought leave under section 38(1)(a) of the Evidence Act 1995 (NSW) to question Chaffey as though cross-examining her on that conflicting evidence. The accused's counsel opposed the application.
Legal Issues
- Whether Chaffey's evidence that Ms Hardes did not get out of the car at 4 Kenneth Street constituted "unfavourable" evidence within the meaning of section 38(1)(a) of the Evidence Act 1995 (NSW).
- Whether leave should extend to suggesting Chaffey had a motive to lie because she was a friend of Ms Hardes.
- What constraints, if any, should be placed on the scope of any leave granted, having regard to section 192 of the Evidence Act and the accused's right to a fair trial.
Decision
Issue 1: Whether unfavourable evidence warranted leave under section 38(1)(a)
Chaffey's account that Ms Hardes remained in the car was unfavourable to the Crown because it conflicted with Martyn's evidence that both the accused and Ms Hardes entered the premises at 4 Kenneth Street and were present when the accused made admissions (at [17]). Lonergan J accepted that the Crown, if it intended to invite the jury to prefer Martyn's evidence, was required as a matter of fairness to first put the inconsistency to Chaffey so she could address it. That obligation was consistent with the prosecutorial duties identified in R v Walton, R v Kennedy, and R v Teasdale (at [9]). The court found it was not impossible that Chaffey had simply forgotten, given the shocking events of that afternoon, that Ms Hardes briefly left the car (at [19]).
Issue 2: Whether leave should extend to suggesting a motive to lie
The Crown sought permission to put to Chaffey that she was not telling the truth because of her friendship with Ms Hardes, relying on the circumstance that Chaffey had initially filled out a form falsely identifying Ms Hardes as the driver (at [13]). The court rejected that extension. Lonergan J found no basis to conclude Chaffey was untruthful or had any motivation to lie about Ms Hardes remaining in the car (at [18]). The court noted that Chaffey's account on this point had been consistent from February 2019, and that her earlier false statement about the driver had been corrected by Chaffey herself when she told police the truth (at [18]). Permitting that line of questioning would be unfair both to the witness and to the accused (at [20]).
Issue 3: The permissible scope of circumscribed leave
Leave was granted, but carefully limited. The cross-examination had to proceed in a defined sequence: first, Chaffey's February 2019 statement (in which she said Ms Hardes stayed in the car) had to be put to her; second, her in-court evidence to the same effect had to be put to her; third, it could then be suggested she was mistaken; and fourth, it could be put to her that she had a poor recollection because she was scared and stressed, and finally that she was not telling the truth (at [21]-[22]). It could not be put to her that any untruthfulness arose from her friendship with Ms Hardes (at [23]).
Orders Made
- Leave granted pursuant to section 38(1)(a) of the Evidence Act 1995 (NSW) to question Ms Chaffey as though the Crown were cross-examining her, subject to the constraints set out at paragraphs 21 to 23 of the judgment.
Key Takeaways
- Under section 38(1)(a) of the Evidence Act 1995 (NSW), leave to cross-examine a Crown witness on unfavourable evidence may be granted even where there is no prior inconsistent statement in the strict sense, provided the witness's evidence is genuinely adverse to the party calling them (at [1]-[2]).
- Prosecutorial fairness obligations, as confirmed in R v Walton, R v Kennedy, and R v Teasdale, require that where the Crown intends to invite the jury to disbelieve a Crown witness in favour of another witness, it must first put the conflict to the unfavourable witness for a response (at [9]).
- The court found that the absence of any identifiable motive to lie is a significant factor weighing against extending section 38 leave to include imputations of dishonesty motivated by personal loyalty (at [18]).
- Where leave is granted under section 38, the court has power under section 192 of the Evidence Act to impose conditions on the scope and sequence of questioning, including requiring that prior consistent statements be put to the witness before any challenge to credibility is mounted (at [20]-[21]).
- A witness's earlier false statement on a separate matter does not, without more, provide a sufficient basis to suggest that the witness is lying about a different aspect of events where that particular account has remained consistent throughout (at [18]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Kennedy (2000) 118 Crim R 34; [2000] NSWCCA 487
- R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91
- R v Walton (1999) 113 A Crim R 308; [1999] NSWCCA 452