Citation: R v Hawkins (No 11) [2020] NSWSC 1830
Court: Supreme Court of New South Wales
Date: 15 December 2020
Judge: Lonergan J
Background
The accused stood trial for the murder of Kenneth Denniss, who was shot dead on 8 December 2018. The accused claimed self-defence, alleging that approximately one hour before the shooting, the deceased had stabbed him and, during a subsequent phone call to a mutual acquaintance, threatened to send associates around to "get" the accused and his friend.
The question before the court arose on day 20 of the trial. The Crown had evidence that in the early hours of 9 December 2018, roughly 12 hours after the shooting, the deceased's partner's brother (Blain Findlater) and a man known as "Stevo" were arrested near the accused's residence while in possession of a Taser. Two text messages sent by Stevo to the deceased's partner that morning were also part of the material.
The defence sought to have this evidence led as supporting the accused's account of the threat. The Crown opposed admission, arguing the evidence was irrelevant and, in any event, should be excluded under section 135 of the Evidence Act 1995 (NSW) due to the risk of jury misuse.
Legal Issues
- Whether the post-death arrest evidence and associated text messages met the relevance threshold under section 55 of the Evidence Act 1995 (NSW).
- Whether, if relevant, the evidence should nonetheless be excluded under section 135 on the basis that its probative value was significantly outweighed by the risk of unfair prejudice to the Crown, particularly through potential adverse inferences against the deceased's partner.
- Whether any such prejudice could adequately be addressed by a jury direction and warning.
Decision
Lonergan J held that the evidence was relevant within the meaning of section 55 of the Evidence Act. That provision sets a low threshold, requiring only that evidence could rationally affect, directly or indirectly, the probability of a fact in issue. The relevant fact in issue was whether the deceased had in fact made the alleged threat to "send his boys" around to the accused's address.
The court reasoned that the presence of armed men in close proximity to the accused's home in the hours following the shooting, combined with the loyalty and regard for the deceased expressed in the text messages, could rationally inform the jury's assessment of whether the deceased had associates he could, and would, deploy in that manner. That inference, even if indirect, was sufficient to satisfy the low relevance threshold. The evidence was not of negligible or slight probative value.
On the section 135 exclusion question, the court rejected the Crown's submission that the risk of misuse was irremediable. The primary concern was that the jury might draw adverse inferences against the deceased's partner, Ms Lethbridge, by associating her with the arrival of Findlater and "Stevo" near the accused's premises. Lonergan J found this risk could be addressed by a carefully formulated direction to the jury that the evidence could not be used adversely against Ms Lethbridge and could not affect any assessment of her credibility, given there was no evidence she had any knowledge of or involvement in the men's presence.
The court directed that the evidence be led by the Crown through the officer in charge of the investigation, subject to an agreed jury direction limiting the permissible use of the material.
Orders Made
- The evidence of and associated with the arrest of Blain Findlater and "Stevo" on 9 December 2018 at 3:45am, in possession of a Taser and in close proximity to the house where the accused resided, is admissible.
Key Takeaways
- Section 55 of the Evidence Act 1995 (NSW) sets a deliberately low relevance threshold. Evidence need not render a fact in issue probable; it is sufficient that it could rationally affect, even indirectly, the probability of that fact.
- Post-event evidence can satisfy the relevance test where it sheds light on relationships and loyalties that are material to a fact in issue at the time of the alleged offence.
- A finding that evidence carries a risk of unfair prejudice does not automatically lead to exclusion under section 135. Where that prejudice is capable of being addressed by a jury direction, exclusion is not necessarily warranted.
- The Supreme Court confirmed that a carefully formulated direction limiting the permitted use of evidence can, in appropriate circumstances, cure or sufficiently mitigate risks of jury misuse.
- Relevant evidence need not directly address events occurring at the time of the alleged offence. Evidence of what occurred after the relevant events may still possess recognisable probative value where it illuminates the plausibility of a contested account.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 135
Secondary Sources:
- Stephen Odgers SC, Uniform Evidence Law (15th ed, 2020, Lawbook Co), [55.60]
Cases cited: None identified in the judgment.