Citation: R v Hawkins (No 10) [2020] NSWSC 1931
Court: Supreme Court of New South Wales
Date: 19 October 2020
Judge(s): Lonergan J
Background
The accused was charged with the murder of the deceased, whom he shot at the deceased's home on 8 December 2018. The accused admitted to the shooting but raised self-defence, asserting he had returned to the property with a loaded firearm to "warn off" the deceased after being stabbed by him earlier that afternoon and fearing further threats to himself and his children.
The morning after the shooting, the accused told a nurse and a doctor at hospital that his stab wound had been caused by running through a glass window. Later that morning, while in police custody and before being formally cautioned or interviewed, the accused told detectives he knew nothing about the deceased's death "except what I read." He subsequently declined to be interviewed.
An earlier ruling by Walton J had held that evidence of these lies was admissible. The question deferred to trial, and resolved in this judgment, was whether the Crown could deploy those lies as evidence of consciousness of guilt.
Legal Issues
- Whether lies told by the accused to hospital staff and to police on the morning after the shooting could be used by the Crown as evidence of consciousness of guilt.
- Whether those lies were "intractably neutral," meaning they did not point specifically to guilt of murder as opposed to some lesser or different offence, or to the negation of self-defence.
- Whether the context in which the lies were told (the accused exercising or considering his right to silence, in police presence) affected their proper characterisation.
Decision
Lonergan J ruled that the Crown could not rely on the lies for consciousness of guilt purposes. The lies were characterised as minor deflections rather than deliberate attempts to conceal the accused's role in the deceased's death. The accused made no attempt to flee after the shooting and was arrested at his home address.
The lies told at hospital were made in the presence of police officers seated nearby. The exchange with detectives occurred before any formal caution or interview, in circumstances where the accused was navigating whether to speak to police at all. The court accepted the defence's characterisation of those statements as deflections connected to the accused's exercise of his right to silence, rather than as active misleading conduct probative of guilt.
Applying the High Court's reasoning in The Queen v Baden-Clay (2016) 258 CLR 308, Lonergan J found the lies were intractably neutral. They did not, on analysis, indicate that the accused disbelieved his own self-defence position or that he was conscious of having committed murder as distinct from some lesser wrongdoing. The Crown's submission that the lies undermined the self-defence claim was not accepted.
The court acknowledged the lies might remain relevant to the accused's credit, subject to a direction of the kind described in Zoneff v The Queen (2000) 200 CLR 234, limiting the jury's use of that material to the question of credibility rather than consciousness of guilt.
Orders Made
• The lies told by the accused to police and to hospital staff in police presence on 9 December 2018 may not be relied upon by the Crown for consciousness of guilt purpose.
Key Takeaways
- Lonergan J held that lies told by an accused to hospital staff and police on the morning after an alleged murder were "intractably neutral" and could not be used as consciousness of guilt evidence where they were minor deflections made in the context of the accused considering and exercising his right to silence.
- A finding that evidence of lies is admissible does not automatically resolve whether those lies may be used for a consciousness of guilt purpose; the two questions are distinct and can be determined at different stages.
- Under the principle confirmed in The Queen v Baden-Clay, there is no blanket rule that post-offence concealment and lies are always intractably neutral, but the specific facts and context of each case must be examined to determine whether the lies point meaningfully to consciousness of guilt of the charged offence.
- Where an accused makes statements in the presence of police before being formally cautioned or charged, and in circumstances connected to declining an interview, the context can render those statements intractably neutral rather than probative of guilt.
- Lies that are too neutral to support a consciousness of guilt direction may nonetheless remain relevant to the accused's credibility, in which case a Zoneff direction limiting the jury's use of that material becomes applicable.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW), s 130A
Cases:
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28