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Supreme Court 9 October 2023

R v Hawkins; R v Garland

[2023] NSWSC 1201

Homicide
CRIMINAL LAW SEPARATE TRIAL APPLICATION ACCUSED JOINTLY CHARGED WITH MURDER ACCUSED NOW DECEASED STATUTORY TEST APPLICATION OF AUTHORITIES

Citation: R v Hawkins; R v Garland [2023] NSWSC 1201
Court: Supreme Court of New South Wales
Date: 9 October 2023
Judge: Hamill J

Background

Two accused men, Hawkins and Garland, were jointly charged with the murder of a woman at Stockton, near Newcastle, on 9 June 2021. Garland was also charged in the alternative with being an accessory after the fact to the murder. The prosecution alleged that both men acted on behalf of a third person, since deceased, who had a motive to kill the victim arising from a family dispute connected to a deteriorating relationship and an apprehended violence order.

The prosecution's case alleged that Garland drove Hawkins to and from the vicinity of the killing, and that Hawkins shot the victim. Garland's expected defence was that he drove Hawkins to the area without knowledge of any plot to kill anyone. Hawkins's expected defence was that he left the vehicle before it reached the scene of the killing.

Hawkins applied for a separate trial under ss 21(2)(b) and 29(3) of the Criminal Procedure Act 1986 (NSW). The Director of Public Prosecutions opposed the application. Garland's position shifted during the hearing, ultimately expressing a preference for a joint trial but making no positive submissions and asserting no prejudice if the trials were separated.

  • Whether the statutory test for a separate trial under the Criminal Procedure Act 1986 (NSW) was satisfied.
  • Whether Hawkins would be unfairly prejudiced or embarrassed in the conduct of his defence if tried jointly with Garland.
  • Whether judicial directions could adequately cure the prejudice arising from Garland's statements to police and civilian witnesses, which were admissible only in Garland's case but which implicated Hawkins as the shooter.
  • Whether the general rule favouring joint trials in "cut-throat" defence cases applied in these particular circumstances.
  • Whether, if the trials were separated, Garland would become a compellable witness in Hawkins's trial, and whether that was a relevant consideration.
  • Whether separate trials risked producing inconsistent verdicts.

Decision

Hamill J granted the application. The starting point in the law is that co-accused jointly charged with a joint criminal enterprise, particularly where each blames the other in what is loosely called a "cut-throat" defence, should ordinarily be tried together by the same jury. The prosecution relied strongly on that presumption. However, the court found that the specific facts of this case displaced it.

The critical issue was that Garland had made lengthy interviews with police and statements to civilian witnesses that were inadmissible against Hawkins but that implicated him as the shooter. His Honour found that no judicial direction could adequately prevent the jury from using that material, at least subconsciously, in assessing the case against Hawkins. The risk that the jury would fill gaps in the prosecution's circumstantial case against Hawkins by reference to what Garland had said was, in the court's view, too significant to be cured by direction alone.

The court also took into account that, if the trials were separated and conducted back to back, Garland would become a compellable witness in Hawkins's trial. That meant Hawkins would have the opportunity to test Garland's account in cross-examination, which was a preferable course to the alternative of the jury absorbing inadmissible material without proper ability to scrutinise it. The duplication of witnesses and additional court time required by separate trials weighed against separation, but did not outweigh the prejudice to Hawkins.

His Honour acknowledged the inevitable difficulty the separation of trials would cause for the deceased's family, who were following the proceedings, but concluded that this was the result required by the proper application of the law to the facts.

Orders Made

  • Hawkins to be tried separately from Garland, pursuant to ss 21 and 29 of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • The presumption in favour of joint trials for co-accused in joint criminal enterprise cases, including where "cut-throat" defences are raised, is not absolute and can be displaced where inadmissible co-accused statements would create incurable prejudice against the applicant.
  • Where one co-accused has given lengthy police interviews implicating the other, and those interviews are inadmissible against that other accused, the risk that a single jury will use the material subconsciously may be sufficient to justify separation, even where judicial directions could in principle be fashioned.
  • Separation of trials is not precluded merely because it will result in greater court time, duplication of witnesses, or additional burden on victims' families; those considerations are relevant but are not determinative.
  • Under ss 21(2)(b) and 29(3) of the Criminal Procedure Act 1986 (NSW), the test requires that the accused may be prejudiced or embarrassed in his defence and that separation is in the interests of justice; the interests of justice encompass considerations beyond the accused's interests alone, including the interests of victims' families.
  • Ordering trials to run back to back, so that a convicted or acquitted co-accused becomes a compellable witness in the subsequent trial, can be a relevant factor favouring separation where that arrangement better protects the accused's right to test the evidence against him.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21(2)(b), 29(3)
- Evidence Act 1995 (NSW), ss 38, 128, 165

Cases:
- Caleo v R (2021) 290 A Crim R 352; [2021] NSWCCA 179
- Director of Public Prosecutions v Lehrmann (No 5) (2022) 373 FLR 253; [2022] ACTSC 296
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamalainen v R [2019] NSWCCA 276
- Hoang v The Queen (2022) 96 ALJR 453; [2022] HCA 14
- Nader v R [2018] NSWCCA 256
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Basanovic and ors (No 1) [2015] NSWSC 1033
- R v Bloodsworth; R v Errington (No 1) [2017] NSWSC 1482
- R v Douglas [2000] NSWCCA 275
- R v Grondkowski [1946] KB 369
- R v Hawi & ors (No 3) [2011] NSWSC 1649
- R v JH (No 3) [2014] NSWSC 1966
- R v Newson; R v Cunneen (No 2) [2020] NSWSC 462
- R v Qaumi & Ors (No 3) (Severance and Separate Trial) [2016] NSWSC 15
- R v Roff [2015] NSWSC 1853
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37
- R v Spicer [2013] NSWSC 1907