Citation: R v Hawkins (No 8) [2020] NSWSC 1434
Court: Supreme Court of NSW
Date: 14 October 2020
Judge(s): Lonergan J
Background
The accused stood trial for the shooting murder of a man on 8 December 2018. The accused's case was one of self-defence: he claimed to have returned to confront the deceased, believed the deceased had a weapon, and fired in response. A key factual issue was the nature of communications between the accused's best friend and the deceased on the afternoon of the shooting.
A witness, the girlfriend of the accused's best friend, gave evidence that she overheard a phone call between the deceased and the accused's best friend on the afternoon of the shooting. Her evidence was that the deceased was loudly angry about the accused having visited his home, but she said she did not hear the exact words used.
The Crown had expected the witness to recount an additional detail, drawn from a police statement she made in May 2020, some 18 months after the events. That detail was that the accused's best friend told her the deceased had said words to the effect of "Why the f--- did you send him around for." The Crown applied to revive the witness's memory under s 32 of the Evidence Act 1995 (NSW), and alternatively sought leave to cross-examine her under s 38.
Legal Issues
- Whether the witness's evidence was "unfavourable" to the Crown within the meaning of s 38(1)(a), entitling the Crown to seek leave to cross-examine her.
- Whether the absence of the additional detail from her oral evidence constituted a prior inconsistent statement under s 38(1)(c).
- Whether, if any limb of s 38(1) was satisfied, the court should nonetheless refuse leave having regard to the discretionary factors in s 192 of the Act.
Decision
Issue 1: Unfavourable evidence under s 38(1)(a)
Lonergan J rejected the Crown's argument that the witness's evidence was "unfavourable" simply because she omitted a detail that the Crown had expected her to provide (at [26]). Her Honour reasoned that if the witness had included the additional detail, her evidence would have been more favourable to the Crown by corroborating another witness's account. The omission of that detail did not convert the evidence actually given into evidence that was unfavourable to the Crown (at [27]).
Issue 2: Prior inconsistent statement under s 38(1)(c)
Her Honour accepted, at least tentatively, that the absence of the additional detail could arguably constitute a prior inconsistent statement under s 38(1)(c) (at [28]). However, this was not treated as a firm holding, and the point was resolved against the Crown on the s 192 discretion in any event.
Issue 3: Discretion under s 192
Even accepting that s 38(1)(c) might be engaged, Lonergan J refused leave after applying the s 192 factors (at [28]-[29]). Three considerations were decisive. First, the May 2020 statement was made 18 months after the events in question. Second, it followed multiple earlier statements to police about relevant matters. Third, on each occasion the witness addressed this conversation, including in court, she made clear her recollection of it was incomplete. In those circumstances, granting leave to cross-examine about the omitted detail would have been unfair to the accused.
Orders Made
- Leave to cross-examine the witness about the part of her account of the 8 December 2018 conversation first recounted in her May 2020 statement is refused.
Key Takeaways
- The mere omission of an expected piece of evidence does not render a witness's evidence "unfavourable" under s 38(1)(a). Lonergan J held that evidence which falls short of being as helpful as hoped is not the same as evidence that is adverse to the party calling the witness (at [26]-[27]).
- A statement recorded 18 months after the events it describes may be insufficient to support cross-examination leave, particularly when the witness has consistently acknowledged incomplete recall both in that statement and in court (at [24]-[25], [28]).
- Under s 192, courts assess fairness to the accused as a live discretionary factor when deciding whether to grant s 38 leave. Where a witness's account was always qualified as partial, it may be unfair to allow cross-examination designed to extract a more complete version (at [28]-[29]).
- Section 38(1)(b), which permits cross-examination where a witness is not making a genuine attempt to give evidence, was not in play where there was no suggestion the witness was withholding evidence rather than simply not remembering it (at [16]).
- The Crown's s 32 application to revive memory was withdrawn, implicitly acknowledging that a statement made 18 months after the events was not made while those events were fresh in the witness's mind (at [24]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated