Citation: R v Hawkins (No 2) [2023] NSWSC 1407
Court: Supreme Court of New South Wales
Date: 16 November 2023
Judge(s): Hamill J
Background
The accused stood trial for the alleged murder of a woman killed outside her home on 9 June 2021. The prosecution case was that a co-accused (who had since died by suicide) organised the killing and hired the accused to carry it out in an execution-style attack. The accused's partner gave a statement to police that was relevant to the contested piece of evidence.
The prosecution sought to tender a text message sent from a phone associated with the co-organiser to a phone associated with the accused at 11.53 pm on 3 June 2021, six days before the killing. The message read "Sicaro Soldaro," accepted by both parties as a misspelling of the Spanish-language film title Sicario: Day of the Soldado, which translates roughly to "Hitman: Day of the Soldier." A second message sent about six minutes earlier from the same phone referenced another film, No Country for Old Men.
The defence objected to the admission of the "Sicario Soldado" message, and the court ruled on that objection in this ex-tempore judgment.
Legal Issues
- Whether the text message referencing Sicario: Day of the Soldado had sufficient probative value to justify its admission at trial
- Whether the danger of unfair prejudice to the accused arising from the message outweighed its probative value under s 137 of the Evidence Act 1995 (NSW)
Decision
Hamill J accepted that the message carried some probative value. Its temporal proximity to the killing, six days before the murder, meant a jury could treat it as part of the prosecution's circumstantial case, connecting the co-organiser's reference to "hitman" with the prosecution's assertion that the accused was hired to carry out the killing.
The court nonetheless found that other explanations for the message existed. The accused's partner had told police the film had simply been lent to the couple in the weeks before a trip to Newcastle, and the earlier reference to No Country for Old Men in the same exchange supported the view that the messages concerned films rather than any operational communication.
Hamill J concluded that the emotive and inflammatory nature of the word "hitman" appearing in a message sent to the accused days before a killing created a real danger of misuse by the jury. The court also noted, in a paragraph added during revision, that there was a potential, not explicitly canvassed in argument, for the evidence to be misused through tendency or bad character reasoning.
Weighing those considerations, the court was satisfied that the danger of unfair prejudice outweighed the probative value of the message, and the evidence was excluded.
Orders Made
• The evidence (text message referring to "Sicaro Soldaro") is excluded under s 137 of the Evidence Act 1995 (NSW) as the danger of unfair prejudice outweighs its probative value.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant, and this balancing exercise requires close attention to how a jury might actually use the evidence.
- Temporal proximity between a communication and an alleged offence can give that communication probative value in a circumstantial case, but proximity alone does not guarantee admission.
- Where a message carries an emotionally charged meaning, the risk that a jury will latch onto that meaning without properly weighing alternative innocent explanations is a legitimate basis for exclusion.
- The absence of an opportunity to cross-examine the sender of a message (here because the co-accused had died) was not, on its own, afforded significant weight by the court, since co-accused tried together would not automatically be subject to cross-examination by one another.
- A footnote added during revision identified the potential for tendency or bad character reasoning as an additional, implicit basis for finding unfair prejudice, even where that risk was not explicitly argued at the time.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases:
- No cases were cited in the judgment.