Citation: R v Hawkins (No 4) [2023] NSWSC 1496
Court: Supreme Court of New South Wales
Date: 21 November 2023
Judge: Hamill J
Background
The accused, Jason Hawkins, stood trial for the murder of Stacey Klimovitch, who was shot dead at her Stockton home on 9 June 2021. The prosecution case was that a man called Stewart Campbell organised the killing, and that the accused was driven to Stockton by a third man (referred to throughout as "the witness") to carry out the shooting. Campbell died in custody before trial, and the accused successfully obtained a separate trial from the witness, who was tried first and convicted of manslaughter.
The accused's defence was that, although CCTV placed him in the witness's car at Heddon Greta, he got out of the vehicle "just up the road" and was not present at the shooting. The witness firmly rejected this account in cross-examination, maintaining that the accused remained in the car for the entire journey to Stockton.
During cross-examination, defence counsel effectively attacked the witness's credibility. It was established that the witness had attempted to construct three false alibis, told lies to friends and associates over several months, and initially lied to police when they attended his home in November 2021. The prosecution then sought leave under s 108(3) of the Evidence Act 1995 (NSW) to adduce prior consistent statements made by the witness to three other people in the hours and days after the murder.
Legal Issues
- Whether the prosecution could adduce the witness's prior consistent statements under s 108(3) of the Evidence Act 1995 (NSW) to re-establish his credibility after it was substantially attacked in cross-examination.
- Whether s 108(3) is confined to re-examination or also permits evidence to be led through other witnesses.
- Whether any relevant unfairness arose from the accused's inability to cross-examine the witness on those statements during the witness's own examination.
- Whether the timing of the prior statements, being made before the witness could have had a motive to fabricate, was sufficient to engage s 108(3)(b).
- Whether the evidence should be subject to a limiting direction under s 136 of the Evidence Act 1995 (NSW).
Decision
Hamill J granted the prosecution leave under s 108(3) to adduce prior consistent statements made by the witness to two of the three proposed witnesses: Keira Thorby and Dillon McDougall. Leave was refused in relation to the evidence of the anonymised witness referred to as "AC," whose overheard account was found to be ambiguous and of limited capacity to re-establish the witness's credibility.
The court confirmed that s 108(3) is not limited to re-examination and can apply to evidence led through other witnesses. In reaching this conclusion, Hamill J applied established authority, including Graham v The Queen (1998) 195 CLR 606 and the line of NSW Court of Criminal Appeal decisions following it. The threshold question was whether the cross-examination had introduced a suggestion that the witness fabricated his evidence, and the court was satisfied that the extensive attack on the witness's credibility in this case cleared that bar.
On the question of unfairness, the court found that no relevant prejudice arose from the defence's inability to cross-examine the witness on the statements. The fact that this was a sound forensic choice by defence counsel, rather than any limitation imposed on the accused, meant that the omission did not generate unfairness. Hamill J also noted that the statements pre-dated the period in which the suggestion of fabrication was said to have emerged, satisfying the timing requirement under s 108(3)(b).
A limiting direction was given to the jury, in accordance with s 136, confining the use of the prior consistent statements to the question of the witness's credibility rather than as evidence of the truth of their contents.
Orders Made
- Leave granted to adduce the prior consistent statement evidence of Keira Thorby.
- Leave refused to adduce the evidence of AC.
- Leave granted to adduce the evidence of Dillon McDougall.
- An order was made limiting the use of the evidence under s 136 of the Evidence Act 1995 (NSW), with a corresponding jury direction given during the summing up.
Key Takeaways
- Section 108(3) of the Evidence Act 1995 (NSW) is not confined to re-examination: it can authorise prior consistent statements to be led through third-party witnesses, provided the credibility preconditions are satisfied.
- Where cross-examination raises a suggestion of fabrication, prior consistent statements that pre-date the alleged motive to fabricate can satisfy s 108(3)(b) and support a grant of leave to adduce credibility evidence.
- No relevant unfairness arises under s 108(3) merely because defence counsel made a forensic choice not to cross-examine the original witness on the prior statements; the absence of cross-examination must result from a constraint imposed on the accused, not a tactical election.
- Ambiguity in an overheard representation can reduce its capacity to re-establish a witness's credibility, and may weigh against the grant of leave even where the general preconditions of s 108(3) are otherwise met.
- Prior consistent statements admitted under s 108(3) remain subject to a potential limiting direction under s 136, restricting their use to credibility assessment rather than proof of the matters asserted.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 37(1)(c), 108(1), 108(3), 108(3)(a), 108(3)(b), 136, 192, 192(2)(b)
Cases:
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323
- R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328
- R v MDB [2005] NSWCCA 354