Citation: R v Hawkins (No 9) [2020] NSWSC 1930
Court: Supreme Court of New South Wales
Date: 15 October 2020
Judge(s): Lonergan J
Background
The accused stood trial for murder following the fatal shooting of a man, Mr Denniss. The central factual contest was whether the accused acted in self-defence. The defence case was that Mr Denniss had come running from a shed carrying a home-made mace, which the accused mistook for a gun.
A key witness to the shooting, Ms Lethbridge, gave evidence that she and Mr Denniss had their arms wrapped around each other at the time of the shooting. She described them shuffling together toward the roller door, and said that as Mr Denniss tried to push her away, she simultaneously tried to pull him back. On her account, the two were physically intertwined immediately before the shot was fired.
This evidence was significant because, if accepted, it would be difficult to reconcile with the defence account of Mr Denniss charging out of the shed brandishing a weapon. On day 17 of the trial, the Crown sought leave to adduce what it characterised as prior consistent statements made by Ms Lethbridge to police in the immediate aftermath of the shooting, captured on officers' body-worn cameras.
Legal Issues
- Whether the material recorded on police body-worn cameras constituted "prior consistent statements" of Ms Lethbridge within the meaning of the Evidence Act 1995 (NSW).
- Whether, if they were prior consistent statements, the court should grant leave under s 108(3) of the Evidence Act to adduce that evidence to re-establish Ms Lethbridge's credibility.
Decision
Lonergan J refused leave. The primary basis for refusal was that the statements sought to be tendered were not "prior consistent statements" at all, meaning s 108 was not engaged in the first place.
Under the Evidence Act dictionary, a prior consistent statement is "a previous representation that is consistent with the evidence given by the witness." The Crown pointed to references in the body-worn camera footage where Ms Lethbridge said she had tried to pull Mr Denniss away, and that he was "right next to me." The Crown argued these were consistent with her trial account of physical proximity and an attempt to pull him clear.
Lonergan J rejected that characterisation. The very specific evidence Ms Lethbridge gave at trial, including that she and Mr Denniss had their arms wrapped around each other, that they were shuffling together as a unit, and that he pushed her at the same time she pulled him, had no counterpart in the prior statements. None of the body-worn camera footage referred to their arms being interlinked, nor to Mr Denniss pushing her simultaneously. One piece of footage actually showed Ms Lethbridge demonstrating the pulling motion by grabbing her friend's forearm with one hand, a gesture inconsistent with the interlocking-arms description she gave in court.
Because the prior statements painted "quite a different picture" from the trial evidence, they were not consistent with that evidence. The threshold requirement for engaging s 108(3) was therefore not met, and the question of whether leave ought to be granted did not arise.
Orders Made
• Leave sought under s 108(3) of the Evidence Act is refused.
Key Takeaways
- A "prior consistent statement" under the Evidence Act dictionary requires the previous representation to be consistent with the witness's actual trial evidence. A statement that merely touches on similar subject matter is insufficient if the detail and description differ materially.
- The threshold question under s 108(3) is whether the prior statement is genuinely consistent with the evidence given at trial. Where that threshold is not met, the court does not reach the question of whether leave should be granted.
- In refusing the application, Lonergan J emphasised the specificity of Ms Lethbridge's trial account, noting that the absence of key details (the interlinked arms, the simultaneous push and pull) from the prior statements made them a different picture rather than a consistent one.
- The decision illustrates that the credibility rule in s 102 of the Evidence Act operates as a strict exclusionary rule, and exceptions such as s 108(3) require careful attention to whether the foundational requirements are actually satisfied before the leave question arises.
- Cross-examination suggesting fabrication or reconstruction does not automatically open the door to prior consistent statements; the statements themselves must satisfy the consistency requirement in the first instance.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 102, 108(3), and the Dictionary (definitions of "credibility" and "prior consistent statement")
Cases cited: None identified in the provided text.