Citation: R v Hawkins (No 3) [2023] NSWSC 1408
Court: Supreme Court of New South Wales
Date: 17 November 2023
Judge: Hamill J
Background
The accused stood trial for murder, with the prosecution alleging the deceased was shot and killed with a shotgun in June 2021. During re-examination, a Crown witness, who was the accused's de facto partner, was being questioned about clarifications she had made in a second police statement. Rather than simply confirming that her second statement clarified her first, the witness began reading aloud from her statement, volunteering a reference to a "single barrel sawn-off shotgun" that had been stored in a garage and seized by police in 2017.
The reference had nothing to do with the murder alleged in the proceedings. It related to a separate incident four years before the killing. The prosecutor had not intended to elicit the passage, and the trial judge intervened to stop the witness from reading further, though in doing so may have drawn additional attention to the evidence.
Defence counsel applied for a discharge of the jury after the jury had left the courtroom. Hamill J heard the application on the Friday and refused it, delivering reasons on the following Monday.
Legal Issues
- Whether inadvertent reference before the jury to an irrelevant prior firearm incident was capable of being cured by judicial direction, or was so prejudicial as to require discharge of the jury.
- What weight, if any, the deliberateness (or absence thereof) of the conduct giving rise to the prejudice bears on an application to discharge.
- Whether the particular connection between the inadmissible evidence and the subject matter of the charge (both involving shotguns) aggravated the risk of unfair prejudice.
- Whether the judge's intervention to stop the witness may itself have compounded the problem.
Decision
Hamill J accepted that the evidence was clearly problematic. Neither the prosecutor nor the witness bore any malicious intent. The judge characterised the witness as frightened and doing her best to answer honestly, having already declined to claim a spousal privilege objection under s 18 of the Evidence Act 1995 (NSW). The non-responsive answer arose from misfortune rather than misconduct, though the judge acknowledged that the deliberateness of such conduct is only one consideration among several.
The judge identified two potential forms of prejudice. First, the jury might reason that the sawn-off shotgun mentioned by the witness was connected to the killing. Second, and more seriously, the jury might engage in tendency or bad character reasoning, inferring that the accused had a propensity to possess and use shotguns. The judge noted that shortened firearms are commonly associated with criminal use, and that the ballistics evidence could not entirely rule out that the murder weapon was a shortened shotgun.
Against those risks, the judge weighed the existing evidence already before the jury, which included testimony from the same witness about the accused's interest in guns and associations with a person said to have organised the shooting. The judge concluded that the jury could be given a carefully crafted direction to contextualise and neutralise the reference, and that several practical options existed to address the problem without misleading the jury. One option canvassed was establishing through an agreed fact or controlled examination that the reference concerned events in 2017, entirely unconnected to the present charge.
The judge also noted that requiring key witnesses, including the deceased's daughter who had already given evidence twice, to testify again in a fresh trial was a significant practical consideration. That consideration was, however, expressly not treated as justifying the continuation of an unfair trial. The application was refused because the prejudice, though real, was capable of being cured by appropriate direction.
Orders Made
No orders were made in this decision.
Key Takeaways
- Discharge of a jury is not automatic merely because inadmissible and prejudicial evidence has been uttered before it. The central question is whether a direction can adequately cure the risk of unfair prejudice.
- The absence of deliberate misconduct by counsel or a witness is a relevant consideration on a discharge application, but Hamill J confirmed it carries limited independent weight: the focus remains on whether a fair trial can continue.
- Where inadmissible evidence bears a direct subject-matter connection to the charge itself (here, a shotgun reference in a shotgun murder trial), that connection heightens the prejudice analysis and calls for careful scrutiny of whether any direction can be truly effective.
- A trial judge's well-intentioned intervention to stop a witness from continuing may itself become a relevant factor, because an interjection from the bench risks highlighting the very evidence it seeks to suppress.
- Under Stanoevski v The Queen (2001) 202 CLR 115, where an accused is effectively forced into a particular tactical election by a ruling made over firm objection, that election should not prejudice the accused on any subsequent appeal.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 18 (right of a person in a close personal relationship with a defendant to object to giving evidence)
Cases
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248
- Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
- Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4