R v Hawkins (No 5)

[2023] NSWSC 1497

Supreme Court

New South Wales

Medium Neutral Citation:

R v Hawkins (No 5) [2023] NSWSC 1497

Hearing dates:

28 November 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Objection by accused to answering questions in cross-examination upheld.

(2) Accused required to answer questions.

(3) Accused shall have a certificate under s 128 of the Evidence Act 1995 (NSW).

Catchwords:

CRIMINAL LAW – privilege against self-incrimination – where accused elects to give evidence in his murder trial – where circumstantial case includes lies told to police to be used to support consciousness of guilt reasoning – explanation for lies includes involvement in drug transaction – evidence-in-chief oblique and no objection taken – objection taken in cross-examination concerning details – section 128 certificate – application for a certificate – objection upheld – accused required to answer questions – certificate granted

Legislation Cited:

Evidence Act 1995 (NSW), s 128

Cases Cited:

Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12

R v Cranston (No 20) [2022] NSWSC 1578

Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237

Category:

Procedural rulings

Parties:

Rex
Jason Paul Hawkins

Representation:

Counsel:
B Hatfield SC (Rex)
B Bickford (Hawkins)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Hugo Law Group (Hawkins)

File Number(s):

2021/00336983

Publication restriction:

Not to be published beyond the parties until the conclusion of the trial.

Redactions to the judgment in accordance with non-publication orders made on 15 November 2023.

EX-TEMPORE JUDGMENT (rEVISED)

1. Jason Hawkins is currently giving evidence in his murder trial in relation to the events of 9 June 2021. At around 8.00pm on that day he is alleged to have shot the victim at her home in Stockton. His evidence commenced yesterday, and he is currently in cross‑examination. One part of the circumstantial case against him is that he told a deliberate lie when subject to a vehicle stop at around 11.50am on 10 June 2021 – that is, the day after the murder. A police officer Niall Donovan gave evidence of that vehicle stop, and there was body‑worn video footage with audio played to the jury, in which the accused described his movements the day before. [1]

   1. Ex 20; MFI 27.

2. In a nutshell, and without going into the evidence right now because the jury is waiting, he said that he had been working all day and was at home (the house at which he was staying in Argenton) at around 7.00pm. Other evidence in the case suggests that those representations were false. He was not at the Argenton house where he and his partner were staying. The evidence shows that he was, around that time or shortly thereafter, at a house in Heddon Greta and left there with a [co‑accused]. [2] On the prosecution case they then drove to Stockton. The accused’s case is he got out of the car shortly after they left Heddon Greta.

   2. A non-publication order has been made in relation to the identity of the co-accused in Mr Hawkins’ trial.

3. The prosecution seeks to rely on that lie as evidence of a consciousness of guilt on Mr Hawkins’ part. In other words, the only explanation for him saying that deliberate falsehood was that he sought to exculpate himself from the murder which he knew he had committed. 

4. In his evidence‑in‑chief, Mr Hawkins was asked by his own counsel about whether or not he had spoken to the police during the vehicle stop and the following evidence was elicited:

“Q. Do you recall watching the video, that we've seen in the proceedings, of you speaking with one of the police officers?

A. Yes.

Q. That's been recorded?

A. Yes.

Q. Part of that conversation that was recorded was police asking you where you were the night before.  Do you remember that?

A. Yes.

Q. Did you tell them where you were the night before?

A. Um, I wasn't honest with them.

Q. Why not?

A. Um, because I didn't know what was happening ‑ what was going on, you know.

Q. When you say you didn't know what was happening or what was going on, did they talk to you, or tell you about what they were investigating?

A. No, they just said that they were investigating a serious offence to do with Stuart.

Q. Once they told you that, was that when you made the decision to not tell them where you'd been the night before?

A. Yeah, because I had ‑ I'd done something on the way up for Stuart ‑ or on the way down into Canberra, and I was concerned it might've been the issue what they might've been talking to him about.

Q. You'd done something? Are you referring to drugs?

A. Yes.” [3]

3. Tcpt, 27 November 2023, pp 791-792.

5. Late yesterday, the learned Prosecutor was cross‑examining Mr Hawkins and went to cross-examine him on that evidence, the conversation with police and the reason the accused was not honest with police. Mr Bickford sought to raise a matter of law in the absence of the jury. The matter of law was to the effect that, on behalf of his client, he objected on the ground of the privilege against self‑incrimination to giving evidence that could incriminate him in drug supply, or similar‑types of offending.

6. The question that arises is whether the accused can be forced to give that evidence (which may tend to incriminate himself in respect of the transportation of drugs) and, if he was, whether or not a certificate under s 128 of the Evidence Act 1995 (NSW) should be granted to him.

7. The issue is not a straightforward one. 

8. Since the High Court’s decision in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 (“Cornwell”), accused people choosing to give evidence cannot generally obtain the benefit of a certificate under s 128. The facts of Cornwell were quite stark and involved the accused choosing to give evidence and raising the objection while being examined by his own counsel. The defence being proffered gave rise to acknowledgement of other criminal offending directly relevant to the offence with which Mr Cornwell was then charged. In other words, to exculpate himself from the charged offence, Mr Cornwell sought to give evidence – with the protection of a certificate under s 128 – that his acts on those occasions involved the commission of a different offence.

9. The decision in Cornwell was discussed briefly yesterday and the matter was adjourned overnight. The parties have industriously provided me with some case law overnight, that being Song v Ying (2010) 79 NSWLR 442; [2010] NSWCA 237(“Song v Ying”) and R v Cranston (No 20) [2022] NSWSC 1578 (“Cranston (No 20)”) (a judgment of Payne JA in a very long‑running tax fraud trial).

10. In delivering this ruling ex-tempore I said I would set out the facts of those two cases when I revised the judgment but would not do so at the time because the jury was waiting at a crucial time in the trial. I have decided not to do so and will allow the reader with sufficient interest to read those judgments for themselves. Song v Ying involved civil litigation but supports the approach that I took. The facts of Cranston (No 20) are distinguishable.

11. The situation in this case is very different to the circumstances in Cornwell and also, I think, different to those which applied in Cranston (No 20). In this case, the evidence of the drug transaction is not proffered to provide, directly, a defence to the murder charge or to explain the accused’s state of mind at the time of the murder. Rather, it is led to rebut a suggestion by the prosecution that the accused told lies to police out of a consciousness of guilt. It goes not to his state of mind at the time of the murder but to his state of mind when he was dishonest with the police. This evidence is one part of a circumstantial case against him.

12. I accept the force in the Prosecutor’s submission, who opposes the use of s 128 to protect the accused in the circumstances, in that the accused has chosen to answer this part of the circumstantial case that the prosecution puts against him. But the questioning that is about to be embarked upon would certainly give rise to a reasonable ground for the accused to object to giving the evidence. He has made himself, if you like, compellable, by giving evidence in his murder trial, but I do not think that it is the end of the matter.

13. I am satisfied that he has reasonable grounds to object to giving the evidence of whatever it is he said he did on the way to or from Canberra, as he said in his evidence‑in‑chief, to do with drugs. In some verbal admissions which were ruled to be inadmissible earlier in the trial, he allegedly referred to picking up a “kilo of bling”. I should say clearly: I am satisfied that to force the accused to give answers to this questioning would constitute a breach of his right to silence, even though he elected to give evidence and despite this aspect of his evidence being touched upon, albeit obliquely, in his evidence‑in‑chief. I uphold his objection.

14. The question that then arises is if it is in the interests of justice for him to be required to give the evidence, in spite of having reasonable grounds to make an objection.

15. It would be, on my assessment, entirely unfair to the accused to prevent him from explaining, as best he can, the lies he told to police or to expose him to further prosecution if provides the explanation. It would be equally unfair to the prosecution to forbid it from exploring this explanation, perhaps to establish that it is not a reasonable explanation. Ultimately, the jury is going to be directed as to the use of the false statements, and I have heard no submission that it cannot be put to the jury as evidence of a consciousness of guilt. It is therefore potentially important evidence of guilt and the accused should be entitled to explain his dishonesty as best he can and without fear of further prosecution based on his evidence.

16. So, looking at it from both sides in the limited time I have, I am satisfied it is in the interests of justice that Mr Hawkins be required to give the evidence. Requiring him to give the evidence does infringe upon his right to silence and I am satisfied that if I do so, he should have the benefit of a certificate under s 128 of the Evidence Act.

17. Despite upholding the objection taken on the accused’s behalf, I propose to require that he gives evidence of the matters upon which the Prosecutor seeks to cross-examine him on, but he will have a certificate under s 128.

18. I note that nothing in that certificate will protect Mr Hawkins from prosecution based around the giving of false evidence on this or any other subject. This ruling will mean that the jury will be in the position to hear all of the evidence relevant to this particular aspect of the prosecution’s circumstantial case.

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Endnotes