R v Hawkins (No 4)

1. [1]

   In the course of the seventh day of Jason Hawkins’ trial for murder, I made three rulings under s 108(3) of the Evidence Act 1995 (NSW), upon application by the Prosecutor for leave to ask questions calculated to re-establish the credibility of another witness, who I will simply call “the witness”. [1] The evidence was sought to be led through three other witnesses, each of whom told police that they heard things said by the witness in the hours and days following the murder of Stacey Klimovitch on 9 June 2021 at around 8.30pm.

2. [2]

   In brief, the prosecution case is that a man called Stewart Campbell organised the murder of Mrs Klimovitch. He arranged for the witness to drive Mr Hawkins from Heddon Greta to Stockton where Mr Hawkins discharged a shotgun at the victim in the doorway of her home. She died of gunshot wounds to her upper chest, heart and left lung. The witness then drove Mr Hawkins to Argenton and returned to the premises in Heddon Greta.

3. [3]

   The three men were jointly charged with murder and were to stand trial together. However, Mr Campbell took his own life while in custody awaiting trial and Mr Hawkins made a successful application for his trial to be held separately from that of the witness. The basis of that application was, amongst other things, that the witness had made two expansive recorded interviews with police in which, at least by inference, he implicated Mr Hawkins as the shooter.

4. [4]

   The witness stood trial first and was convicted of manslaughter. The current jury is aware that the witness’s trial proceeded over the last weeks and that the witness is in custody, but to this point in Mr Hawkins’ trial, they have not been made aware that the witness was found not guilty of murder but guilty of manslaughter. When the order for a separate trial was made, and during argument on that application, the Prosecutor indicated that whatever the result of the witness’s trial, he would call the witness in the prosecution case against Mr Hawkins. This accorded with the Prosecutor’s duty to call material eyewitnesses but the witness’s evidence, if accepted, also had the capacity to refute a critical component of Mr Hawkins’ case, to which I will now turn.

5. [5]

   Mr Hawkins’ case is that he did get into the car at Heddon Greta (a fact that is otherwise established by reasonably high-quality closed circuit television footage (“CCTV”)) but that he got out of the car “just up the road”. In a conversation with a Detective Faber, he was shown the CCTV footage and the following exchange occurred:

6. [6]

   More flesh was put on the bones of the defence case during cross-examination. The witness was staunch in refuting the suggestion that the man who travelled with him in the car – who he does not name as Mr Hawkins but refers to as “Canberra” (which was the city he came from) – did not get out of the car until it arrived at Stockton. Mr Hawkins case was put to the witness as follows: [3]

7. [7]

   Speaking more generally of the cross-examination, Mr Bickford undertook a thorough and effective dismantling of the witness’s credibility. It was established that in the days after the killing, he attempted to set up three false alibis and told a number of lies to friends and associates over the months before his arrest. Several inconsistencies in his account were established, as was his involvement in a so called “outlaw” motorcycle club and various yarns he had spun in that respect.

8. [8]

   Importantly, for present purposes, it was established that the witness initially told lies to police when they attended his home on 25 November 2021 and he floated two of the (three) false alibis he had previously attempted to set up. He also floated a “hypothetical” situation whereupon he was cautioned. He then gave a version that (arguably and generally) accords with the version he provided to police later that day in a recorded interview. The cross-examination on this issue included:

The evidence sought to be led by the prosecution

1. [9]

   The Prosecutor sought to lead evidence from Keira Thorby, AC [5] and Dillon McDougall of things the witness said on returning to the house at Heddon Greta the following day.

2. [10]

   Ms Thorby was a carer for Dillon McDougall and was present at the premises at Main Road Heddon Greta on the night of 9 June 2021. In a statement to police on 18 January 2022, she told police that when the witness returned to the house he seemed “a bit freaked” and she asked if he was “good mate?”. He said “[y]eah, just got to check my car” and she asked him “[w]hy, what happened?” He then said, “I dropped the guy off and picked him up around the corner and he was covered in blood.” [6]

3. [11]

   She said she returned to the Heddon Greta house on 11 June 2021 and had another conversation with the witness in which he said:

4. [12]

   AC was a friend of Dillon McDougall and used to spend a fair bit of time at the Heddon Greta house. He was there on the evening of 9 June 2021 and gave evidence of the comings and goings of the three accused men and also gave some evidence relating to the CCTV cameras used at the home and matters relating to the SD cards associated with the CCTV. The Prosecutor sought to adduce evidence of a conversation he said he heard between Mr McDougall and the witness on the return of the latter from Stockton. The witness allegedly:

5. [13]

   Dillon McDougall was the principal occupant of the house at Heddon Greta. He had an interview with police on 7 December 2021. He was having friends around to watch the State of Origin game on 9 June 2021 and was able to provide an account of the events of that night and the days following. He spoke about the presence of the witness, Mr Campbell and the third man who he did not know. He said they left (Mr Campbell in one car and Mr Hawkins and the witness in the other), and the witness returned about an hour and a half later.

6. [14]

   The Prosecutor sought to adduce the following evidence of a conversation he said he had with the witness later that night:

The objections

1. [15]

   The evidence was first sought to be adduced through the witness Keira Thorby and objection was taken “to hearsay”. [10] The Prosecutor submitted that the evidence was admissible under s 108 of the Evidence Act because it was evidence re-establishing the witness’s credibility and (implicitly) that it was not relied on for a hearsay purpose (that is, to establish the truth of the representations made by the witness to or in the presence of the three witnesses).

2. [16]

   Section 108 provides:

3. [17]

   Mr Bickford submitted that, because of the terms of s 108(1), the section only applied to the re-examination of a witness whose credibility had been impugned:

4. [18]

   No authority was provided for this submission, and I did not accept it. The submission is contrary to the structure and terms of s 108. Further, the submission flies in the face of the implication behind any number of cases where evidence of another person is admitted (or considered for admission) under s 108(3), where that witness can provide evidence of what a complainant said to them about the event subject of the charges: see, for example, Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61, R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328 (“DBG”), R v MDB [2005] NSWCCA 354 (“MDB”) and Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323 (“Nikolaidis”).

5. [19]

   To be clear, s 108(1) concerns re-examination of a witness whose credibility has been impugned. Section 108(3) concerns or may relate to evidence from a source other than that witness. It is s 108(3) that governed the question that arose following Mr Bickford’s objection. Section 108(3) is not concerned with the witness whose credibility is sought to be re-established.

6. [20]

   I found it unnecessary to decide, but had significant doubts about, the Prosecutor’s submission that subs (3)(a) was engaged, whereby a prior consistent statement could be tendered, under the section, to counter cross-examination of a prior inconsistent statement that was on a different subject matter. [12]

7. [21]

   The real force in the Prosecutor’s application for leave under s 108(3) arose from his submission that it had (or will be) suggested that evidence given by the witness was fabricated. Mr Bickford acknowledged that fabrication had or would be raised. The passage of the cross-examination set out at [8] demonstrated that fabrication was clearly an issue.

8. [22]

   Accordingly, there being no suggestion that the evidence was not relevant (and it clearly was), the evidence of the three witnesses was admissible, because the credibility rule did not apply to it, if it constituted a prior consistent statement and the Court granted leave. Whether leave should be granted fell to be determined by reference to the matters in s 192 of the Evidence Act and any other relevant considerations.

9. [23]

   In DBG Howie J said at [56]:

10. [24]

    Similarly, in Nikolaidis Simpson J (as her Honour then was) referred to the timing of the relevant representation at [218]:

11. [25]

    Her Honour had taken the same approach in MDB at [24]:

12. [26]

    Finally, in Doyle v R; R v Doyle [2014] NSWCCA 4, Bathurst CJ said at [182]:

13. [27]

    In the present case, the representations upon which the prosecution seeks to rely on did not involve any extensive delay. They co-existed temporally with the witness’s attempts to set up false alibis and the creation of false narratives (such as saying that Mr Campbell had taken his car that night), matters upon which he was extensively and effectively cross-examined.

14. [28]

    The conversations relied upon to re-establish the witness’s credibility are consistent with aspects of his evidence and were made in June 2021, that is, well before his interviews in November and December. The implication underlying the cross-examination was that the witness settled upon (or fabricated) the version to the police which formed the basis of his evidence in the current trial after he lied to the investigators and floated his false alibis.

Section 192 and whether leave should be granted

1. [29]

   Section 192 provides:

2. [30]

   I considered the terms of the section in so far as it was relevant. The evidence was not likely to add to the length of the trial to any real extent. The power to adjourn was not relevant and the nature of the proceedings militated in favour of granting leave, provided there was no unfairness to the accused and the evidence was important in re-establishing the witness’s credibility.

3. [31]

   Mr Bickford submitted there was unfairness because the accused had not had an opportunity to cross-examine the witness on the representations. He submitted:

4. [32]

   This submission was relevant to the grant of leave: s 192(2)(b).

5. [33]

   However, there was no relevant unfairness in the way this evidence emerged or in the evidence the prosecution sought to adduce from the witnesses. In his evidence in chief, the witness gave the following evidence:

6. [34]

   Following the cross-examination, the witness gave the following additional evidence in re-examination:

7. [35]

   These parts of the transcript show that the conversations (or three of the four conversations) were raised with the witness in his evidence-in-chief, although the details of the conversations were not adduced. It is unlikely that those details would have been admissible at that point in his evidence, other than by agreement. It was open to counsel to cross-examine the witness on the detail of those conversations, but it is readily understandable, from a forensic perspective, why he chose not to do so. Once the cross-examination challenged the witness’s credibility in a substantial way, more detail was elicited in re-examination. The evidence was clearly admissible under s 108(1) at that stage and, quite properly, no objection was taken either to the admissibility of the evidence or to the Prosecutor adducing it by asking leading questions. [16]

8. [36]

   No application was made to ask further questions in cross-examination and, again, that seemed like a sound forensic choice.

9. [37]

   I perceived no relevant unfairness in adducing the evidence of Keira Thorby and Dillon McDougall. Even if there is thought to be some unfairness in the way the evidence emerged, it could be alleviated by (i) making an order under s 136 limiting the use of the evidence and (ii) directing the jury in the summing up about the dangers of hearsay evidence and the fact that the use of the evidence is limited strictly to its ability to impact on the jury’s assessment of the witness’s credibility. That direction would include that Mr Hawkins can have no way of knowing what was actually said and that it is therefore difficult to cross-examine the witness. It might also include that the evidence is potentially unreliable because there is no recording of the conversations, and because the jury must rely on the memory of the witnesses. [17]

10. [38]

    Against that, the capacity of the evidence to re-establish the witness’s credibility was quite significant as it demonstrated, if accepted, that he provided a relevantly consistent version very shortly after the events in question and well before the police interviews in November 2021.

11. [39]

    I came to a contrary view in relation to AC’s evidence, at least in terms of its importance or capacity to re-establish the witness’s credibility. His evidence related to things he overheard and the representation to which he referred to in his statement was ambiguous. Consequently, I declined to grant leave for the Prosecutor to adduce paragraph [12] of AC’s statement. [18]

Rulings

1. [40]

   For those reasons, I made the following rulings on the evidence:

   1. (1)

      I granted leave to adduce the evidence of Keira Thorby, set out above at [10]-[11].

   2. (2)

      I declined to grant leave to adduce the evidence of AC, set out above at [12].

   3. (3)

      I granted leave to adduce the evidence of Dillon McDougall, set out above at [13]-[14].

Post-script

1. [41]

   The evidence was led from Ms Thorby and Mr McDougall in a somewhat edited and shorter form. [19]

2. [42]

   An order was made limiting the use of the evidence and the jury was directed in accordance with this judgment. [20]