R v Hawkins

1. [1]

   The accused, Jason Paul Hawkins, is charged with the murder of Stacey Klimovitch on 9 June 2021 at Stockton, Newcastle. He was charged jointly with Stuart Campbell and Stephen Garland. The prosecution case is that Mr Campbell organised the killing, that Mr Garland drove Mr Hawkins to the scene and that Mr Hawkins shot Mrs Klimovitch in the chest with a shotgun in the doorway of her home. Mr Campbell committed suicide while in custody awaiting trial. On 9 October 2023, I made an order for the trials of Mr Garland and Mr Hawkins to be held separately. [1] On Wednesday 8 November, the jury returned a verdict of not guilty of murder but guilty of manslaughter in Mr Garland’s case. The prosecution intends to call Mr Garland as a witness in Mr Hawkins’ trial.

2. [2]

   Mr Hawkins takes objection to four parts of the evidence which the prosecution seeks to adduce against him. Each contains out of court statements made by the accused to police officers. In three instances, the objection is based on the failure of the investigators to record the conversations in accordance with s 281 of the Criminal Procedure Act 1986 (NSW). The Prosecutor seeks to lead evidence of these conversations, which occurred on 29 and 30 November 2021, through the officers. The fourth objection concerns an electronically recorded interview with police that took place on 29 November 2021. That objection is based on asserted improper or illegal conduct on the part of the investigators and, in particular, an allegation that the officers disregarded Mr Hawkins’ repeated statements, made on the basis of legal advice, that he did not wish to be interviewed. If the assertion of impropriety is established, the question of admissibility falls to be determined by reference to s 138 of the Evidence Act 1995 (NSW).

3. [3]

   The documentary evidence was tendered during a pre-trial hearing on 3 October, [2] and written submissions were also provided at that time. [3] Officers Murphy and King gave evidence on 4 October and the argument was adjourned until the jury retired in Mr Garland’s trial. The parties made oral submissions on 7 November 2023 after the jury in Mr Garland’s trial retired to consider its verdict.

The out of court statements and identification of the evidence to which the objections relate

1. [4]

   The Prosecutor identified eight “events” during which the accused made representations to the police. There are objections to four of those events, one is not pressed and the other three will be led before the jury without objection. To understand the objections, and to place the evidence in a sensible context, it is useful to set out those events in chronological sequence and to adopt the Prosecutor’s numbering.

2. [5]

   At 11:53am on 10 June 2021, the day after the murder, Mr Hawkins was in the back seat of a Holden Astra that was stopped by police. The car was being driven by his partner Jessica Burton and there were two other people in the car (by that time, Mr Campbell had been arrested by police for possession of a “pen gun” and items suspected to be drug paraphernalia).

3. [6]

   Mr Hawkins was asked about his whereabouts on the day of the murder by Senior Constable Donovan and their conversation was recorded on the officer’s body worn video. Mr Hawkins made the following statements (as summarised in the Prosecutor’s submissions):

   1. (1)

      He saw Mr Campbell at work all day;

   2. (2)

      He went home to 1 Victoria Street Argenton at around 7pm; and

   3. (3)

      He went to sleep at around 11.30pm/12am [the implication being that he got home at 7pm and did not leave until going to sleep].

4. [7]

   The prosecution will rely on these statements as lies, either as evidence undermining his credibility or as evidence betraying a consciousness of guilt. It will rely on closed circuit television footage (“CCTV”) to establish that Mr Hawkins was around the house at Argenton during the day and that he was at the house at 33B Main Street Heddon Greta (from which Messrs Garland and Hawkins departed for Stockton) between 6.15pm and 6.55pm. Ms Burton is expected to give evidence that the accused left 1 Victoria Street at dusk and returned at around 10:00pm.

5. [8]

   No objection is taken to this evidence.

6. [9]

   Mr Hawkins was arrested on 26 November 2021 by Australian Federal Police officers. He said, “someone took my phone in Newcastle”.

7. [10]

   No objection is taken to this evidence.

8. [11]

   Mr Hawkins appeared to speak with himself when he was taken to a watchhouse in the ACT, and this was recorded by CCTV. However, the quality of the recording was such that it was unclear precisely what was said, and it was open to different interpretations. The Prosecutor properly and fairly determined that it could not safely be left in the hands of the jury.

9. [12]

   The evidence was not pressed.

10. [13]

    Mr Hawkins was extradited from the Australian Capital Territory to Queanbeyan Police Station in New South Wales. He was advised of his rights pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Mr Hawkins told the custody manager that he did not wish to speak to a lawyer because he had spoken to one earlier in the day. [4]

11. [14]

    Detective Senior Constable Timothy Murphy says that he was standing with the accused waiting to take him to an interview room, when he had the following conversation with him: [5]

12. [15]

    Detective Murphy described the above exchange as “a spur of the moment conversation started by [Mr Hawkins]”, while they waited for Detective King to get the interview room ready. He said there was no recording equipment available to capture the conversation and he told Mr Hawkins that he would have an opportunity to tell the detectives more about what had happened during the recorded interview. [6]

13. [16]

    Objection is taken to this evidence.

14. [17]

    After the conversation just described, Mr Hawkins was taken into an interview room equipped with electronic recording equipment. Before the equipment was activated, Detective King told Mr Hawkins that the police had “a large volume of evidence against him, and others involved” in the murder of Mrs Klimovitch. Mr Hawkins responded that “he had no idea about the murder, his 'phone had been stolen and he was being set up by Stuey”. [7]

15. [18]

    Mr Hawkins told the detectives that his father had tried to call his 'phone and someone from the National Parks Service had answered it. He denied that he had deliberately not taken his 'phone to Stockton and repeated the assertion that he could not have committed the murder because his 'phone was lost or stolen. Mr Hawkins said that he had not attempted to retrieve his 'phone since it was lost or stolen. [8]

16. [19]

    When Detective King informed Mr Hawkins that they had arrested the driver of the Holden Commodore, who had made admissions that Mr Hawkins was involved in the murder, Mr Hawkins “denied it, saying that he ‘did not know the guy’”. [9]

17. [20]

    Mr Hawkins told detectives that on 9 June 2021, after “working for Stuey”, he went back to the house across the pub, fell asleep during the State of Origin and did not leave the house for the rest of the night: [10]

18. [21]

    When Detective King informed Mr Hawkins they had CCTV footage of him leaving the house, Mr Hawkins paused and said: [11]

19. [22]

    Mr Hawkins said that the ute he picked up was owned by a person who lived with Mr Garland. This was the first time that Mr Hawkins mentioned Mr Garland’s name. Mr Hawkins then said, “this was set up by Stuey and Garland”. The following conversation is then recorded in the statement of both police officers: [12]

20. [23]

    Mr Hawkins repeated that “this was a set up” by Mr Campbell. He said that he had completed roofing work for Mr Campbell and had not been paid. [13]

21. [24]

    In a statement dated 2 October 2023, Detective King provided the following explanation as to why this conversation was not recorded: [14]

22. [25]

    Objection is taken to this evidence. Mr King was cross-examined on the voir dire, and I will return to his evidence and that of his colleague Mr Murphy in the context of determining whether, in the terms of s 281 of the Criminal Procedure Act, there was any “reasonable excuse” for the failure to record this conversation electronically.

23. [26]

    At 2.39pm Detectives King and Murphy conducted an electronically recorded interview (“ERISP”) with Mr Hawkins. Shortly after the interview commenced, Mr Hawkins said that he wanted to speak to his lawyer and the interview was suspended at 2.41pm to allow him to obtain legal advice. Mr Hawkins spoke to a lawyer from the Aboriginal Legal Service (“ALS”). [15]

24. [27]

    Detective King said in a statement dated 12 April 2022 that Mr Hawkins “said that he did not want to answer any further questions”. The statement continued: [16]

25. [28]

    This was contrary to the advice received from the ALS which seems to have been communicated to the detectives. The ALS “Call Form Records” indicate the accused was “[a]dvised say nothing, don’t go on tape, don’t go into interview room” and that Mr Hawkins accepted that advice. [17] There were three such forms, prepared by two different ALS solicitors. Each form says that the client’s wishes, and acceptance of the legal advice, were communicated to the police. I do not accept the (at least implicit) submission by Senior Counsel that the weight these documents should receive is reduced because they are in a standard form — described as a “tick-a-box” — prepared by the ALS. [18] In any event, as Senior Counsel acknowledged, Mr King accepted that the lawyer had conveyed these things to him. [19]

26. [29]

    Mr Hawkins was taken back to the interview room and the interview resumed at 3.07pm. Detective King confirmed the accused had spoken to a lawyer from the ALS and said (at Q21) “now I understand Jas it’s, you don’t want to answer any more questions” and the accused replied “No”. [20]

27. [30]

    The interview then continued: [21]

28. [31]

    Mr Hawkins told detectives again that he did not want to answer any more questions: [23]

29. [32]

    Detective Murphy then asked questions about the earlier conversation: [24]

30. [33]

    Mr King then resumed asking the accused questions: [25]

31. [34]

    The detectives then stopped asking questions. A “senior police officer not connected with [the] investigation” entered the interview room at 3:15pm and Messrs Murphy and King left. The following is recorded by way of adoption of the interview: [26]

32. [35]

    The interview concluded at 3.13pm. [27]

33. [36]

    Objection is taken to this evidence on the ground that it was improperly or unlawfully obtained. The impropriety alleged concerns the persistent questioning in the face of the detectives being told by the accused and the ALS lawyer that the accused did not want to be interviewed or be taken into the interview room.

34. [37]

    On 30 November 2021 Mr Hawkins appeared at Queanbeyan Local Court where his bail application was withdrawn, and bail was refused. Detectives King and Murphy attended Mr Hawkins in the cells attached to the Queanbeyan Police Station. The officers said that Mr Hawkins had indicated that he wanted to talk to them as he was taken from the court room. That evidence was not challenged and nor was the proposition that, at that stage, the accused was in the custody of Corrective Services. There was a conversation that was not recorded electronically but detailed in the officers’ statements and in the investigators note. [28]

35. [38]

    Detectives King and Murphy said the following conversation took place: [29]

36. [39]

    Mr Hawkins asked the detectives if Mr Garland had been charged with murder. When Detective King said that Mr Garland had not yet been charged, Mr Hawkins responded saying: [30]

37. [40]

    Mr Hawkins read the statement of facts that had been provided to him. Mr Hawkins then said: [31]

38. [41]

    The detectives spoke to Mr Hawkins about receiving a sentencing discount if he told the truth of what happened that night. Mr Hawkins told detectives that he wanted to speak to his lawyer. [32]

39. [42]

    Detectives King and Murphy left to attend to other duties. They say they returned “around an hour later” but Mr Hawkins had been “loaded into” a Corrective Services van. [33] In the Investigators Note, Detective King said he asked Mr Hawkins if he wanted to tell the detectives what had happened and the accused replied, “Not now, but I will later. Come and see me”. [34]

40. [43]

    Objection was taken to this evidence on the grounds that it was not recorded in accordance with s 281 of the Criminal Procedure Act.

41. [44]

    On 21 December 2021 two different police officers (Detectives Faber and Aspinall) went to see Mr Garland while he was in custody at the Metropolitan Remand and Reception Centre (“MRRC”) for the second time. He was advised of his LEPRA rights by the custody manager and spoke to a solicitor. Mr Hawkins said to the detectives that his solicitor advised him to “say nothing”. Detective Faber told Mr Hawkins that they were just going to speak to him and that he did not have to answer any questions. Mr Hawkins was taken to an interview room. The conversation Mr Hawkins had with the detectives was not recorded electronically but was set out in Mr Faber’s statement dated 5 April 2022. [35]

42. [45]

    No objection is taken to the prosecution leading evidence of this conversation.

43. [46]

    In the interview room the detectives told Mr Hawkins that they would play him CCTV which showed his movements at the Heddon Greta house on the 9 June 2021. The detectives stated that he did “not have to say or do anything” unless he wished to. Mr Hawkins responded saying “[y]eah, I’ll have a look”. The detectives showed footage of Mr Campbell and Mr Hawkins arriving separately at 33B Main Street Heddon Greta on 9 June 2021, meeting Mr Garland outside and walking into the house together. They also showed footage of Mr Campbell, Mr Hawkins and Mr Garland going outside and standing in the driveway next to the Holden Commodore. The following conversation took place between Detective Faber and Mr Hawkins: [36]

44. [47]

    The detectives showed footage of Mr Hawkins, Mr Campbell and Mr Garland going back inside and then later Mr Hawkins leaving the house. Detective Faber commented about the additional clothes Mr Hawkins was wearing and the conversation continued: [37]

45. [48]

    The accused was then shown CCTV footage in which Mr Campbell left in his ute and Mr Garland and Mr Hawkins left separately in the Holden Commodore: [38]

46. [49]

    At paragraph [139] Detective Faber said: [39]

47. [50]

    He said Mr Hawkins “cut me off and said ‘[n]up, I’ve read the Facts, it’s all bullshit and he’s a fucking liar’”. When the detective responded saying, “you’re obviously referring to [Garland]” and “[w]e can corroborate most of the actions [Garland] has described in his version of events through our investigations. I don’t believe everything he says, I find it hard to accept he didn’t know he’d taken part in a murder”, Mr Hawkins raised his voice and said “[o]h, fuck off he didn’t”. According to Mr Faber’s statement, Mr Hawkins then suddenly stopped speaking. [40]

48. [51]

    Detective Faber asked Mr Hawkins whether he wanted to supply a statement for the investigation. During their conversation Mr Hawkins spoke to a lawyer from the ALS. While on the 'phone to the ALS, the detective asked him to tell his lawyer that police wanted him to participate in an identification parade. Mr Hawkins responded that his solicitor had advised him to not participate in the parade. Once he finished speaking with his solicitor, he had the following conversation with the detective: [41]

49. [52]

    Mr Hawkins was taken back into custody and the detectives then left the correctional centre. [42]

The police officers’ evidence on the voir dire

1. [53]

   Both Detectives King and Murphy were called to give evidence on the voir dire. Neither Detective Faber nor Detective Aspinall gave evidence. There was no suggestion put to the officers that the conversations that were not recorded were fabricated although there was some criticism of the process of recording those statements.

2. [54]

   Detective Murphy said that the conversation he had with Mr Hawkins in the dock prior to the interview was not recorded because it happened in the “spur of the moment” and there was no recording equipment immediately available. He told Mr Hawkins that he would have the opportunity to tell the detectives more in the recorded interview. He said he told Detective King about his conversation with Mr Hawkins before the interview and made a written note of the conversation later that day. He attempted to get the accused to adopt the conversation in the recorded interview. Detective Murphy also made written notes of the unrecorded conversation that Mr Hawkins had in the interview room with Detective King. [43]

3. [55]

   Detective Murphy gave evidence that the investigators’ note was written by Detective King and had been commenced once Mr Hawkins was extradited to New South Wales. He (Murphy) had input into the investigators note. Mr Murphy accepted that the unrecorded conversation he had with Mr Hawkins (before they went to the interview room) was not detailed in the investigators’ note, but that the unrecorded conversation they had in the interview room was included in that note. [44]

4. [56]

   After the recorded interview, Mr Hawkins was charged. Detective King handed Mr Hawkins the police facts sheet and Mr Hawkins commented on it. Detective Murphy made written notes of Mr Hawkins comments; however, his comments were not mentioned in either statement from the detectives or in the investigators note. The exchange was described as follows: [45]

5. [57]

   Mr Murphy said that, when he and his colleague went to speak with Mr Hawkins in the cells of Queanbeyan Police Station, they did not know what Mr Hawkins wanted to speak to them about. In any event, they could not record the conversation because there was no recording equipment in that area, and they had no opportunity to ask him to adopt the conversation in a recorded interview, because Mr Hawkins wanted to speak to a lawyer and was later placed in the Corrective Services van. Detective Murphy did not make any handwritten notes of the conversation but both detectives wrote about the conversation in their statements and in the investigators note. [46]

6. [58]

   Detective Murphy said that when Detectives Faber and Aspinall went to speak to Mr Hawkins on 21 December 2021, they had read the investigators note prior to interviewing Mr Hawkins. [47]

7. [59]

   In cross examination, Detective Murphy agreed that while Mr Hawkins had started the conversation with him in the dock, he kept asking Mr Hawkins questions. When asked whether he should have stopped the conversation so that it could have been recorded, Detective Murphy said that he tried to “shut [Mr Hawkins] down” by telling him that he would have opportunity to speak more in the recorded interview. However, Detective Murphy agreed that he had asked Mr Hawkins three questions before he attempted to stop him from speaking. Detective Murphy recognised that it was usual police practice to record the questioning suspects electronically and that the purpose of this was to ensure its accuracy. As a police officer he has been trained to record a suspect’s admissions. He said that he was aware of s 281 of the Criminal Procedure Act at the time of interviewing Mr Hawkins. [48]

8. [60]

   Detective Murphy said that there was recording equipment in the interview room and agreed that Detective King asked Mr Hawkins a number of questions in the interview room before the recorded interview started. There was around 18 minutes of unrecorded conversation during which the detectives asked Mr Hawkins questions. [49]

9. [61]

   When asked why he did not turn on the recording equipment during the initial 18 minutes of questioning in the interview room, Detective Murphy testified: [50]

10. [62]

    Detective Murphy agreed that most of the conversations he recounted in his statement were in identical terms to the record in Detective King’s statement. He said that he took information from the investigators note and, to an extent, relied on and trusted Detective King’s memory when writing his statement. [51]

11. [63]

    Detective Murphy accepted that after Mr Hawkins obtain legal advice, he was brought back into the interview room and questioned despite saying he did not wish to continue with the interview. The officer also agreed that police did not ask the accused to adopt everything he had said outside of the interview room or in the 18 minutes of questioning that occurred when he first entered the interview room. He said that Detective King tried to have Mr Hawkins adopt some of the admissions that he made in the dock: [52]

12. [64]

    Detective Murphy said that they stopped attempting to get Mr Hawkins to adopt his earlier statements in the recorded interview because he refused to answer questions. [53]

13. [65]

    Detective Murphy said that, although he knew Mr Hawkins wanted to speak to him and Detective King in the cells of Queanbeyan Police Station, he did not believe it was necessary to arrange to have Mr Hawkins formally interviewed, because it would have required making an application or request to Corrective Services to get him out of the cell: [54]

14. [66]

    However, Detective Murphy agreed that applying to Corrective Services for Mr Hawkins to be interviewed or recording Mr Hawkins on his 'phone were two options that could have been taken to ensure what was said by Mr Hawkins was recorded. [55]

15. [67]

    Detective Murphy agreed that there was nothing in the statement of Detective Faber which indicated that he intended to adopt the unrecorded statements Mr Hawkins made to Detective Murphy and Detective King in the interview on 21 December 2021. [56]

16. [68]

    In examination in chief Detective Senior Constable King confirmed that Detective Murphy told him about the conversation he had with Mr Hawkins in the dock prior to the recorded interview. He agreed that there was recording equipment in the interview room when they had the unrecorded conversation with Mr Hawkins. He said the purpose of that conversation “was to explain to Mr Hawkins the process of the interview, the workings of the machine” and “what [he] intended to ask him during the interview”. He said that he did not record that part of the interview because that was the “standard procedure” which he had followed “throughout [his] whole career”. [57]

17. [69]

    Mr King said he commenced to make the investigators note the day after the interview and finished on 1 December 2021. He used the investigators note when preparing his statement dated 12 April 2022. He did not make any written notes during the unrecorded conversation with Mr Hawkins; Detective Murphy took notes at that time. [58]

18. [70]

    Mr King acknowledged that he was aware that Mr Hawkins had legal advice not to be interviewed and that he (the officer) spoke to the ALS lawyer on the telephone. He acknowledged that the accused said he did not want to answer any questions. He asserted that he continued to ask Mr Hawkins “clarifying questions” so that he could “adopt the conversation that [Mr Hawkins’] had with Detective Murphy on tape”. He asked Mr Hawkins about “Stuey” so that Mr Hawkins could identify Mr Campbell. He asked Mr Hawkins whether he knew “what happened to Stacey Klimovitch” to see if Mr Hawkins “knew anything about it” and “to see whether he would answer”. [59]

19. [71]

    The detective agreed that there were relevant things said by Mr Hawkins which the detectives did not attempt to have him adopt in the interview. He said this was because Mr Hawkins declined to answer questions: [60]

20. [72]

    Detective King’s explanation for the failure to record the conversation in the cells after the abandoned bail application was multifaceted. He said he did not have any writing material, his 'phone or any equipment to record the conversation. He said he had “[n]o idea” what Mr Hawkins wanted to speak about and that the police officers were not prepared to interview him: [61]

21. [73]

    Detective King did not make any handwritten notes during the conversation in the cells but recorded the conversation in the investigators note that afternoon. He said that he spoke to Detective Faber and a decision was made to re-interview Mr Hawkins, with the intention of adopting the conversation in the cells during that interview. Detective Faber had a copy of the investigators note which detailed the conversation Detective King had with Mr Hawkins. [62]

22. [74]

    In cross examination, Detective King agreed that there was a period of 18 minutes when the detectives were speaking to Mr Hawkins but not recording the conversation, even though there was equipment available in the interview room. He acknowledged that it was police practice to use electronic equipment to record the questioning of suspects. He said that he was aware of the operation of s 281 of the Criminal Procedure Act when he questioned Mr Hawkins in custody. [63]

23. [75]

    Detective King repeated that during those 18 minutes they did not take written notes. He agreed that it would have been easier to record all of the conversation, but he disagreed that there was nothing preventing him from turning on the recording equipment on, as Mr Hawkins had not indicated that he wanted to be electronically interviewed. [64]

24. [76]

    Detective King said that it was standard practice for detectives to talk to accused people first before they turn the tape on. However, he also said that each officer exercises their own discretion as to how they want to proceed with the interview: [65]

25. [77]

    Detective King agreed ultimately that recording the whole interview is the fairest procedure: [66]

26. [78]

    The officer gave evidence that he speaks with a suspect prior to an interview for the purpose of “rapport building” and for “conversation management”. He agreed the strategy was designed to encourage a suspect to provide information: [67]

27. [79]

    Detective King was shown the documents tendered as Ex VD-2 which records the advice provided by the ALS solicitor and the fact that the advice was accepted by the accused and was communicated to the police. He said he commenced the interview despite being aware of those matters. [68]

28. [80]

    He agreed that he did not attempt to have the accused adopt the exact words he used in the earlier conversations and that he kept asking Mr Hawkins questions, even after he indicated that he did not want to answer any more questions: [69]

29. [81]

    He kept asking Mr Hawkins questions because the accused kept answering them. This included asking Mr Hawkins “[d]o you know anything about what happened to Stacey Klimovitch?”: [70]

30. [82]

    Detective King said that it was his intention to not to ask Mr Hawkins questions about the offence, but once Mr Hawkins started talking, he just kept asking questions. [71]

31. [83]

    The cross-examination included confirmation that the detective did not have any electronic recording equipment ready when he went to speak with Mr Hawkins in the cells because he “didn't know what [Mr Hawkins] wanted to talk about at that stage”. [72]

32. [84]

    Detective King said that Mr Hawkins could not have easily been transported to a room upstairs with recording equipment, because there was a process involved in moving him from his cell. However, he agreed that it was an option that was open for him to take. He gave evidence that he was not allowed to have his 'phone in the cell complex and was unable to use his 'phone to record the conversation. He agreed that he could have asked for approval to use his 'phone but did not do so, electing to go straight in to see Mr Hawkins. [73]

33. [85]

    Mr King did not arrange to attend Mr Hawkins in Silverwater Correctional Centre on the day he spoke to him in the cells. He did not accompany Detective Faber to interview Mr Hawkins in Silverwater because he had suffered an injury. However, he believed that Detective Faber intended to have Mr Hawkins adopt the unrecorded conversations in the interview on 21 December 2021. He could not remember where he had read that and agreed that Detective Faber did not mention this in his statement. [74]

The relevance of the evidence and the legal framework in which the decision as to admissibility is made

1. [86]

   There is no doubt, and no real dispute, that the evidence of what Mr Hawkins said to the police in these various conversations is relevant evidence. There are some direct admissions as well as statements that other evidence is capable of demonstrating are false. The prosecution would rely on such evidence to undermine the credibility of Mr Hawkins’ explanations and, possibly, to establish a consciousness of guilt on his part. Further, as the Prosecutor submitted, the admission of only parts of the conversations would deny the jury the ability to place the particular conversations, to which objection is not taken, in a proper context and to evaluate the extent to which the accused’s version of events changed and grew. Other parts of the evidence are exculpatory, and the Prosecutor intends to adduce such evidence in accordance with authority and the Prosecutor’s duty of fairness. [75]

2. [87]

   However, where the objection is based on the failure of the investigators to record the admissions without a reasonable excuse, the Court has no discretion to admit the evidence over objection, no matter how powerful the evidence is in establishing the guilt of the accused: Criminal Procedure Act, s 281. This is in contrast to a situation of impropriety or illegality, where s 138 of the Evidence Act requires the trial judge to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting it, given the circumstances in which it was obtained. Three of the four objections relate to the failure to record the admissions and the prosecution relies on the circumstances in which the admissions were made, and the evidence of the two detectives, in contending that there was a reasonable excuse in each case for the failure to record the admissions.

3. [88]

   The requirement (or desirability) that admissions be electronically recorded did not start with s 281, or its predecessors. [76] In the late 1980s the High Court emphasised “the existence and increasing availability of reliable and accurate means of audiovisual recording” and, by 1991 established the requirement for careful judicial direction where police fail to use the available technology: see Carr v The Queen (1988) 165 CLR 314; [1988] HCA 47 and McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6.

4. [89]

   By the end of 1995, the New South Wales Parliament had introduced s 424A to the Crimes Act, a section which was in relevantly the same terms as the current s 281. The current section provides:

5. [90]

   The accused relies on s 281 in raising his objection to the admissions and statements made in the course of the conversations described above as events 4, 5 and 7. In each instance, there is no issue that the conversations were not recorded and the question is whether there exists a reasonable excuse for not recording them and/or whether there is a recording of the kind referred to in s 281(2)(a)(ii).

6. [91]

   Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196; [2005] HCA 1 (“Nicholls”) concerned Western Australian legislation of a similar nature although it was not in the same terms. McHugh J, having discussed the issue of fabrication of such admissions (which is not Mr Hawkins’ case) went on to say at [99]:

7. [92]

   McHugh J explained at [108]:

8. [93]

   In R v Reid [1999] NSWCCA 258 Smart AJ (“Reid”) said:

9. [94]

   Spigelman CJ said at [6]:

10. [95]

    Moving to the electronically recorded interview and the asserted infringement of Mr Hawkins’ right to silence, I commence with the authorities to which I referred to in the case of R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241 (“Taleb”):

11. [96]

    However, it has been held that there is “no absolute rule” that persistent questioning after a suspect has indicated that they do not wish to be interviewed will result in the exclusion of the evidence. In R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 the Court said:

12. [97]

    On the other hand, Adamson J (as her Honour then was) made important observations in the case of R v FE [2013] NSWSC 1692 (to which I made passing reference in Taleb):

13. [98]

    The parties also addressed the helpful judgment of Kirk JA (with N Adams J and RA Hulme JA agreeing) regarding these issues in Mann v R [2023] NSWCCA 256, although it was accepted that the impropriety in that case was of a much greater gravity.

Findings, resolution of the objections and rulings

1. [99]

   I now proceed to indicate my findings and rulings based on the foregoing summary of the evidence on the voir dire and relevant legal principles.

2. [100]

   I accept the evidence of Detective Murphy that the conversation with Mr Hawkins in the dock of Queanbeyan Police Station, before he was taken to the interview room, occurred suddenly and in circumstances where the officer did not have recording equipment available. I am satisfied that Mr Murphy’s instinctive response was to ask a couple of follow up questions. I am also satisfied that an attempt was made in the ERISP that followed to have Mr Hawkins adopt the statements he made. In making that finding, I have put to one side the impropriety or otherwise of the police conduct in conducting that interview or in continuing it.

3. [101]

   Taking all of the circumstances into account, I am satisfied that there was a reasonable excuse for failing to record the conversation and admissions and I make the following ruling:

4. [102]

   Senior Counsel for the prosecution acknowledged that the conversation between Detective King and the accused, which occurred over a period of around 18 minutes in the interview room before the recording equipment was switched on, is more problematic. I have concluded that the conduct of the police represents a flagrant breach of s 281. I do not accept the explanations proffered by the police officers for the failure to record this conversation.

5. [103]

   The questions could not properly be categorised as “rapport building” or “conversation management” as asserted by Mr King. I found those explanations to be largely devoid of any real meaning in the context of the interrogation that actually occurred before the equipment was activated. Nor does a police officer’s experience that suspects sometimes clam up or stop talking when the recording equipment is switched on constitute a “reasonable excuse” for the purposes of s 281. If it did, the section would be rendered nugatory.

6. [104]

   Detective King said that the “standard procedure” was to have a conversation before an interview commences and said that this may involve explaining what will occur, ensuring that the accused understands their rights, and providing an explanation of the way the technology works. In most cases, there could be no criticism of that, but the questioning under consideration did not fit that description.

7. [105]

   I do not accept Mr King’s evidence that he laid out the allegations before commencing the interview proper (and pressing the record button) “out of fairness for the offender”. If this is thought to be a “standard practice”, it is a bad one. As discussed in argument, if in such circumstances a suspect were to respond by making a full confession to a crime such as murder, such a confession may well be — by operation of the statute — inadmissible in any subsequent criminal trial. As Spigelman CJ emphasised in Reid such conversations might be used by police as part of their investigations or intelligence, but the admissions will not be admissible in criminal proceedings unless “the precise and rigorous requirements” of s 281 are satisfied. For the reasons explained by McHugh J in Nicholls, there is more to be considered than whether there is an allegation that police fabricated the admissions. It is the ultimate tribunal of fact — not the investigating police — which will receive the most benefit from seeing, in a properly recorded interview, an accused person’s initial response when the allegations and evidence gathered to that point is put to them. It is one thing to advise the suspect in advance of the nature of the offence and the substance of the allegation. It is a different thing to engage in a relatively lengthy interrogation which is not recorded in accordance with the statutory requirements.

8. [106]

   The simple fact is that the detectives engaged Mr Hawkins in an 18 minute conversation about extremely serious allegations where there was a purpose-built recording device available to be used. There was no reasonable excuse for the failure to activate the equipment and no attempt to have the accused adopt the things he said shortly afterwards when the recording was turned on. Accordingly:

9. [107]

   The accused bears the onus of establishing that there was an impropriety or contravention of Australian law in obtaining the evidence, subject to the objection, in the ERISP. If that onus is discharged, the onus shifts and the evidence “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”: Evidence Act, s 138(1). In determining the latter question, I must take into account the non-exhaustive list of considerations in sub-s 138(3).

10. [108]

    The impropriety asserted is that the detectives disregarded Mr Hawkins’ repeated statements that he did not wish to be interviewed and, in doing so, breached or undermined his right to silence. There is little doubt that the officers continued to question the accused despite him indicating several times that he did not wish to answer questions. Further, the accused’s lawyers directly communicated with police the accused’s position that he did not wish to be interviewed.

11. [109]

    I accept that the evidence contained in the interview was obtained improperly. Mr Hawkins’ answers to the independent officer at the conclusion of the interview, set out at [34], fortifies me in that view.

12. [110]

    However, at least at the beginning of the interview, I do not consider the impropriety to be particularly egregious or grave: s 138(3)(d). Mr Hawkins had his rights explained to him by the custody manager and this was recorded in the custody management records. By the time the interview commenced, the accused had been given the opportunity to speak to a lawyer. However, when asked to confirm this, he said, “they totally misunderstood me” and asked to speak to another lawyer. The detectives suspended the interview almost immediately and the accused spoke to another ALS solicitor.

13. [111]

    After he received further legal advice, the detectives took the accused back into the interview room. I am satisfied there was some impropriety in that because it seems clear, by that stage, that the accused and his solicitor had indicated that Mr Hawkins wanted to exercise his right to silence and accepted his lawyer’s advice not to be taken into the interview room. The police practice of taking suspects to an interview room despite their clear indication that they do not wish to be interviewed should not be encouraged by the courts.

14. [112]

    That the officers were aware of Mr Hawkins desire to exercise his right to silence is clear from the first question from Mr King after the break (Q21):

15. [113]

    Mr King said, “that’s fair enough” and “we won’t ask you any more questions about the actual offence” (Q 22). He said they would ask “a few clarifying questions” which led to questions calculated (properly) to have Mr Hawkins adopt the earlier conversation he had with Detective Murphy (Event 4, which I have held to be admissible).

16. [114]

    In view of the terms of s 281, the police may (rightly) have thought it was important to get Mr Hawkins to adopt the earlier conversations. They did attempt to adopt the “quick chat” with Mr Murphy: see questions 22-24 and 47-52. In responding to the first series of questions, Mr Hawkins volunteered some extra information, and the police asked a legitimately clarifying question as to “who Stuey [was]?” (Q27). By question 46, Mr Hawkins had expressed his desire not to say anything else on at least four occasions during the interview including:

17. [115]

    Detective Murphy then asked what was, in effect, two or three questions (but is recorded as six questions from questions 47-52). These were directly designed to have his earlier “chat” — instigated by the accused spontaneously — adopted.

18. [116]

    Mr King then asked, “[d]o you know anything about what happened to Stacey [Klimovitch]?” (Q53) and “[d]o you know who might have done it?” (Q54). Asking those question was contrary to Mr King’s statement a few minutes earlier that the police would not ask any more questions about the actual offence; or, to put it another the way, that the police would respect, and not seek to circumvent, Mr Hawkins’ right to accept legal advice and to remain silent.

19. [117]

    By that stage the impropriety, and the attempt to interfere with Mr Hawkins’ rights, was very grave. Mr King’s mindset found voice in his statement that he would keep asking questions while the accused kept answering them. It seemed that Mr Hawkins – who is a “vulnerable person” under the relevant legislation and regulations [77] – was required literally to exercise his right to silence. That is, to have his right to silence respected, he was required to remain mute in the face of repeated questioning in circumstances where his liberty was deprived, and he was in a small interview room in the presence of two experienced interrogators.

20. [118]

    I have considered the matters in s 138(3) of the Evidence Act and will set those matters out in summary form by reference to the paragraphs of that sub-section:

21. [119]

    Balancing those and other considerations, I have concluded that the only parts of the interview that may be admitted into evidence pursuant to s 138 are those parts where the accused responded to questions designed to have him adopt the conversation with Mr Murphy, including the follow up questions. That encompasses the questioning at questions 21-28 and 47-52. Otherwise, the ERISP is not admissible. The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence given the gravity of the impropriety and the fact that it goes to the heart of a right enjoyed by all citizens.

22. [120]

    The evidence could be led through the police officers and without the need of playing what would be a very short, truncated, and edited copy of the audio-visual recording. Those representing the accused may make an election as to the manner in which the evidence is adduced and liaise with the prosecution in facilitating that.

23. [121]

    The parties may also reach an agreement that other parts of the interview should be played for the purposes of providing the context in which those answers were given. I refer here to the introductory questions and questioning by the independent officer at the end. However, to be clear, I would not allow any of the evidence apart from questions 21-28 and 47-52 over objection. It may also be, given that the conversation with Mr Murphy does not appear to be in dispute, that it is not necessary to lead the evidence at all. However, if pressed, the prosecution can adduce the evidence through the officers or (with the accused’s consent) by playing an edited copy of the interview.

24. [122]

    To be clear, in relation to event 6, I make the following rulings:

25. [123]

    I turn finally to the admissions made during the conversation in the cells after Mr Hawkins’ bail application was withdrawn. Once again, this conversation was not recorded. The prosecution relies on the evidence of the detectives in submitting that there was a reasonable excuse for the failure to record it by audiovisual means. The evidence is set out earlier in this judgment.

26. [124]

    The first “excuse” [78] offered is that the accused instigated this conduct by indicating by a gesture that he wanted to speak to the detectives in the cells. The detectives said they did not know what Mr Hawkins wanted to speak about. The circumstances in which the accused made the gesture included that he was in court charged with murder and had been interviewed about the murder by the same two detectives the day before. It is difficult to accept that he wished to speak to the officers about anything other than his current predicament or the offence the police were investigating. While the officers may not have known precisely what the accused might say to them, I am unable to accept that they had “no idea” that the accused wanted to speak about the offence or the investigation. [79] Given the circumstances and the fact that the officers had spoken to the accused about the murder the day before, I am unable to accept that this was a reasonable excuse for not recording the conversation.

27. [125]

    The second explanation for the failure to record the conversation is twofold. First, there was no recording equipment in the cells. I accept that was the case. However, the accused submitted, and put to the detectives, that they could have taken some form of handheld recording device, including a telephone which had the capacity to record either audio or video or both. The officers stressed that, by the time of this conversation, the accused was in the custody of Corrective Services and that there were difficulties in taking telephones and other devices into facilities under the control of Corrective Services.

28. [126]

    Each officer was cross-examined to the effect that an available option was to make a request to those in charge of the facility (which was the cells attached to the Queanbeyan Police Station) either:

    1. (1)

       to have the accused transferred back to police custody, or

    2. (2)

       to permit police to take a recording device into the cells to record the conversation and be in compliance with s 281.

29. [127]

    The witnesses accepted that these were available options. However, neither option was attempted.

30. [128]

    I am unable to accept that the nature of the accused’s custodial situation constitutes a “reasonable excuse” for the failure to record the conversations. It seems unlikely that police officers would not be granted permission by Corrective Services to take a handheld recording device or a telephone into the cells, or that arrangements could not have been made to have the accused placed back into police custody. However, it is unnecessary to speculate on that issue. The fact is that no attempt was made and, as a result, I am not satisfied that there was a reasonable excuse for failing to comply with s 281 of the Criminal Procedure Act.

31. [129]

    The final question concerns whether there was an attempt made to have the accused adopt the contents and terms of conversation shortly after the event. The two detectives said they went back around an hour later by which time the accused had been placed on a truck to be transported to a remand centre. The officers also said that Detective Faber may have sought to get Mr Hawkins to adopt the conversation when he visited him on 21 December 2021 (Event 8).

32. [130]

    It may be that Detective Faber intended to put the conversation to the accused at some point in that interview. The Prosecutor relied on the contents of paragraph [139] of the Mr Faber’s statement (set out at [49] above):

33. [131]

    It is unclear whether this was an introduction to attempt to have the accused adopt the things recorded in the Investigators Note or that it was leading to an invitation for Mr Hawkins to become a prosecution witness in the case against Mr Garland and Mr Campbell.

34. [132]

    If Mr Faber intended to invite the accused to adopt the conversation, he made no attempt to do so at the outset. Rather, he played several items of CCTV footage and asked the accused to comment on them. In doing so, he obtained some significant admissions which are not the subject of objection. For example, the accused agreed the CCTV footage depicted him getting into the car with Mr Garland outside the house at Heddon Greta, and that the car followed Mr Campbell out of the premises.

35. [133]

    It is also a fact that the Faber interview was conducted some three weeks after the impugned conversation in the cells on 30 November 2021. I do not accept that this constituted a timely attempt to have the accused adopt the earlier conversation.

36. [134]

    For those reasons I am not satisfied there is a reasonable excuse for the failure to record the conversations and I make the following ruling on the evidence:

Final observations and rulings

1. [135]

   Before restating the rulings I have made, I should address a couple of the forceful and persuasive arguments made by the Prosecutor. I have taken those arguments into account but, for the most part, they have not carried the day.

2. [136]

   First, as Senior Counsel submitted, the accused is making selective objections to the evidence. For example, it would be open to the accused to object to the Faber interview which contains a mixture of incriminating and exculpatory statements. There can be no legitimate criticism of Mr Bickford for taking this approach and, no doubt, there is a sound forensic reason for him to take it. The fault lies not with defence counsel but with those who failed to comply with the provision in s 281 and, in the case of the ERISP, for undermining the accused expressed wish to exercise his right to silence after receiving legal advice.

3. [137]

   Secondly, Senior Counsel raised concerns as to the approach that Mr Bickford will take in addressing the jury and conducting the case:

4. [138]

   The answer to this lies in the ethical standards attaching to counsel for both sides. If Mr Bickford were to make a misleading submission to the jury or to cross-examine in a misleading way, he would be committing a serious breach of those ethical standards. I would expect that the Prosecutor would raise the matter (which happened at one stage during the addresses in Mr Garland’s trial) and that counsel would withdraw any misleading impression.

5. [139]

   A particular aspect of this complaint concerns Mr Hawkins saying that he was engaged (by Mr Campbell) to deliver “a kilo of bling” (which is part of the evidence that will be excluded by these rulings). [81] I do not know whether that is to form any part of the defence case and how the evidence would be placed before the jury if it is. But again, the way the case will be conducted will require — on both sides — strict adherence to ethical standards and the traditions of the Bar.

6. [140]

   Another aspect of the complaint is that the Prosecutor’s ethical obligation includes placing material before the jury that may assist the defence case and that the rulings sought (and now, for the most part, made) will place a disjointed and fragmented account before the jury. The requirements for a prosecutor to act fairly and impartially was emphasised recently in the judgment of Wilson J in R v Fleming (Costs) [2023] NSWSC 1258 at [78].

7. [141]

   The Court expects counsel on both sides to maintain the highest ethical standards and to co-operate with each other to ensure the admissible evidence is placed before the jury in a comprehensible and coherent fashion. The jury should not be misled, and the prosecution is entitled to (and will have) a fair trial, but nor should the accused be required to answer a case consisting of evidence which is inadmissible and obtained improperly or in breach of a statutory provision. The fact is that where admissions are not recorded properly and there is no reasonable excuse, the content of those admissions is “not admissible over objection”. [82]

8. [142]

   The rulings I make are these:

   1. (1)

      The evidence of the conversation identified as Event 4 is admissible.

   2. (2)

      The evidence of Event 5 is not admissible.

   3. (3)

      The electronically recorded interview is inadmissible except for the questions and answers at questions 21-28 and 47-52.

   4. (4)

      The accused may elect the way in which that evidence is adduced before the jury.

   5. (5)

      The evidence in Event 7 is not admissible.