AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 13 November 2023

R v Hawkins

[2023] NSWSC 1370

HomicidePublic order & justice offences
CRIMINAL LAW EVIDENCE THREE CONVERSATIONS NOT RECORDED POLICE EVIDENCE LARGELY REJECTED REASONABLE EXCUSE ESTABLISHED EVIDENCE ADMISSIBLE

Citation: R v Hawkins [2023] NSWSC 1370
Court: Supreme Court of New South Wales
Date: 13 November 2023
Judge: Hamill J

Background

The accused was charged with the murder of a woman at her Newcastle home in June 2021, allegedly as the shooter in a contracted killing. Two co-accused were also charged: one died in custody before trial, and the other was acquitted of murder but convicted of manslaughter in a separate trial that concluded shortly before this ruling.

In the lead-up to the accused's trial, police conducted a series of conversations with him on 29 and 30 November 2021, following his extradition from the ACT. Three of those conversations were not electronically recorded. A fourth was a formal recorded interview, but the accused had previously told police, on legal advice, that he did not wish to be interviewed.

The prosecution sought to lead evidence of all four interactions. The accused challenged each on different grounds: the unrecorded conversations on the basis that police had not complied with the mandatory recording requirements under s 281 of the Criminal Procedure Act 1986 (NSW), and the recorded interview on the basis that police had acted improperly by proceeding with the interview despite his clearly expressed refusal.

  • Whether police had a "reasonable excuse" under s 281 of the Criminal Procedure Act 1986 (NSW) for failing to electronically record three separate conversations with the accused
  • Whether, in the absence of a reasonable excuse, s 281 required mandatory exclusion of the evidence
  • Whether the conduct of police in taking the accused to an interview room and proceeding with a recorded interview, despite his repeated refusals based on legal advice, constituted improper or illegal conduct
  • Whether, if such conduct was established, the recorded interview should be excluded under s 138 of the Evidence Act 1995 (NSW)

Decision

Event 4: Spontaneous conversation before the interview room

Hamill J found that the accused spontaneously initiated the conversation with Detective Murphy while waiting for the interview room to be prepared. The detective's evidence on this point was accepted, and the court was satisfied there was no recording equipment readily available at that moment. A reasonable excuse for non-recording was established. The prosecution's attempt to "adopt" the substance of this conversation within the recorded interview was also permitted, to the extent the recorded questions sought to capture what the accused had said. The evidence from this conversation was held admissible.

Event 5: Unrecorded conversation in the interview room before equipment was activated

This conversation lasted approximately 18 minutes and took place inside a room that contained recording equipment. Police described the exchange as "rapport building" or "conversation management" before formally activating the recording. Hamill J treated those phrases as devoid of meaningful content in the context of an interrogation. No reasonable excuse existed for the failure to activate readily available equipment during an 18-minute exchange in which significant admissions were made. The evidence was excluded under the mandatory provisions of s 281.

Event 7: Conversation in the cells while the accused was in Corrective Services custody

Police wished to speak with the accused the following day when he was held in cells under Corrective Services authority. Officers expressed concern that Corrective Services would not permit them to bring in a telephone or handheld recording device. However, they made no formal application to bring recording equipment into the cells and took no steps to have the accused transferred back to police custody where recording would have been straightforward. Hamill J found that concern about a hypothetical obstacle, without any attempt to address it, could not constitute a reasonable excuse. The evidence was excluded.

Event 6: The electronically recorded interview

Before the interview began, the accused's solicitor had advised police that the accused did not wish to be interviewed. Despite this, police took the accused to the interview room and proceeded. Hamill J found this conduct to be improper. The practice of taking a suspect to an interview room against their expressed wishes and contrary to legal advice was described as one that ought not be encouraged, amounting to an attempt to undermine the right to silence. Applying s 138 of the Evidence Act, the court weighed the desirability of admitting the evidence against the seriousness of the impropriety and excluded the bulk of the recorded interview. An exception was made only for those questions and answers in the recording that were directed at having the accused formally adopt the earlier spontaneous statements he had made to Detective Murphy, as those statements had already been found admissible.

Orders Made

• The evidence of the conversation identified as Event 4 is admissible
• The evidence of Event 5 is not admissible
• The electronically recorded interview is inadmissible except for the questions and answers at questions 21-28 and 47-52
• The accused may elect the way in which that evidence is adduced before the jury
• The evidence in Event 7 is not admissible

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986 (NSW), the obligation to electronically record conversations with suspects is subject to "precise and rigorous requirements," and where no reasonable excuse for non-compliance is established, exclusion of the evidence is mandatory.

  • A reasonable excuse for failing to record cannot be constructed from a hypothetical or untested obstacle: where police held a significant unrecorded conversation in a room already equipped for electronic recording, no excuse existed simply because the equipment had not yet been activated.

  • Where police had access to recording equipment but failed to make any formal application or practical effort to use it (such as applying to enter cells with a handheld device or seeking the accused's transfer back to police custody), the court found that inaction could not satisfy the reasonable excuse requirement.

  • The right to silence carries real procedural weight: taking an accused person to an interview room and proceeding with questioning after their solicitor has communicated a clear refusal to be interviewed constituted improper conduct justifying exclusion under s 138 of the Evidence Act 1995 (NSW).

  • A spontaneous, accused-initiated statement made to an officer in circumstances where no recording equipment was available can satisfy the reasonable excuse requirement, and questions in a subsequent recorded interview that sought to adopt such a statement were treated differently from the rest of the excluded recording.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 138, 138(3)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), Div 3 reg 28
- Crimes Act 1900 (NSW), s 424A (repealed)
- Criminal Procedure Act 1986 (NSW), s 108 (repealed)

Cases
- Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
- Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196; [2005] HCA 1
- R v FE [2013] NSWSC 1692
- R v Fleming (Costs) [2023] NSWSC 1258
- R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29
- R v Reid [1999] NSWCCA 258
- R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241