R v Hawkins (No 3)

Last Thursday, in the course of the re-examination of Jessica Burton, the Prosecutor showed the witness two statements she made to police on 30 December 2021 and 12 January 2022. She then gave the following evidence: [1]

The transcript does not disclose that my direction to Ms Burton commencing with “I might …” stopped the witness from saying anything further and that I interrupted and, to some degree, spoke over the witness. [2] I was not aware, at that time, of the contents of the remaining part of the paragraph from which she appeared to be reading. As will be seen, it is fortunate that Ms Burton did not continue reading.

Even so, the italicised part of the exchange set out at [1] is evidence that is clearly problematic and potentially prejudicial to Mr Hawkins. Unsurprisingly, it prompted an application by Mr Bickford for a discharge of the jury. Sensibly, counsel did not make the application immediately but raised the matter once the jury left the court room. This showed good judgment as it did not draw attention to the evidence. Furthermore, Mr Bickford sought to see what was recorded in the transcript although, as it turned out, his instructing solicitor had an accurate note of what was said. [3]

The application was made on Friday, and I refused the application for a discharge of the jury. To minimise disruption to the jury, I indicated I would provide my reasons today (Monday 20 November 2023).

There was no intention on the part of the Prosecutor to lead that passage from the statement. The answer was not responsive to the question he asked.

Nor was there any malicious intent on the part of the witness. My impression was that, by that stage of her evidence, she was frightened and traumatised. She is the de facto partner of the accused and had earlier declined to take an objection under s 18 of the Evidence Act 1995 (NSW). [4] My strong impression was that she was doing her best to answer the questions of both counsel honestly and accurately. I believe she was frightened and was looking through the statement trying to understand what she had done wrong and what the Prosecutor wanted her to say. Again, in saying this, I mean no criticism of either the witness or Senior Counsel. While some of the authorities indicate that the deliberateness of the conduct giving rise to an application for a discharge of the jury is a relevant consideration, the matter is of little moment in this instance. For reasons that are nobody’s fault, irrelevant and prejudicial evidence was uttered before the jury.

I have considered the contents of the two statements to which the evidence related. Paragraph [8] of her statement dated 12 January 2022 said:

The italicised portion mirrors the evidence Ms Burton gave by way of reading that part of her statement.

Paragraph [10] of her statement dated 30 December 2021 was in the following terms:

I considered those paragraphs because I was interested in whether anything could be said to the jury that was not misleading and could reduce the potential for prejudice. For example, if Ms Burton was referring to the gun of which a photograph will be in evidence, the jury could be told that the reference to the “sawn-off” related quite clearly to a different firearm or was a mistake in her statement. Similarly, if the gun she mentioned belonged to somebody else, the jury could be told that the gun to which she referred to was not one possessed or owned by Mr Hawkins and had nothing to do with him. However, in light of what is contained in the statements, such directions would be misleading. I assume the gun was seized by police in 2017.

The prejudice that may arise was identified by counsel, and included that the jury, or one of its members, may reason that the gun referred to had something to do with the shooting of Mrs Klimovitch. That is not the prosecution case and is contrary to the statement made by Ms Burton. The jury could be directed to that effect but that would highlight, or bring to the fore, the second possible prejudice which is that the jury may use the inadmissible and irrelevant evidence to support a form of tendency or bad character reasoning. In other words, the jury (or an individual member of the jury) may reason that the evidence shows the accused to be a person of bad character or a person with a tendency to own and use dangerous weapons, in particular a shotgun or shotguns. It may be known to one or more members of the jury that shortened firearms are notoriously used by criminals and not generally possessed by people for innocent purposes.

Counsel emphasised that the non-responsive answer related to a shotgun and the murder was committed with a shotgun. In other words, the inadmissible evidence related to the subject matter of the charge faced by Mr Hawkins: compare Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 (“Ilievski & Nolan”).

While the prosecution case is that the weapon used in the killing was not a shortened or “sawn-off” shotgun, I understand from counsel’s submissions that the expert ballistics evidence in the prosecution brief cannot rule out the possibility that the shotgun used to kill Mrs Klimovitch (which was not recovered) was shortened. The prosecution will submit that the closed-circuit television footage (“CCTV”) captured at 8.06pm on 9 June 2021 depicts the shooter carrying an item which it says is a firearm but is not a shortened or sawn-off one: Ex 8 (MFI 6) compilation 4 (files 28-30). The next file in the CCTV compilation (file 31) is recorded at 8.07pm and the sound of the gun shot can be heard.

Mr Bickford also made the point, which I accept, that while my intervention was well intentioned, it may have drawn attention to the evidence because it came from the trial Judge. This is so, notwithstanding that the jury was directed immediately before the first witness was called that any questions asked by me in the course of the trial had no special significance. [7] This was not a question calculated to clarify an aspect of the evidence; it was an intervention to cut off Ms Burton’s non-responsive answer.

These possible forms of prejudice must be considered in the light of other evidence in the case relating to Mr Hawkins, including his interest in guns and his relationship with Mr Campbell (who is said, by both parties, to have organised the shooting). For example:

That kind of evidence was admitted (in some instances over objection, in others not) to establish the relationship between the two men and to explain (or place in a sensible and true context) the prosecution case that Mr Campbell sought the assistance of Mr Hawkins to commit the murder. It has a potential, which I assessed as relatively small, of misuse or creating prejudice. The jury will be directed (and by the time of publishing these reasons has been directed) as to the limited use to which this evidence can be put. [12]

Ms Burton also gave evidence of seeing a photograph of a shotgun on Mr Hawkins’ Google timeline: [13]

It is anticipated there will be further evidence, from a witness called [redacted], [14] that he saw Mr Hawkins (or a person the prosecution contends was Mr Hawkins) showing a group of people a shotgun at the Argenton premises a few days before the shooting. Based on the evidence in his co-accused’s trial, this evidence has some significant problems. [Redacted] received a sentencing discount for his offer to give this evidence, no other witness said to be present (including Ms Burton) supports that this incident occurred and other evidence suggests that Mr Hawkins had not arrived at Argenton at the time [redacted] claimed he was showing off the weapon.

The parties took me to three helpful authorities: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 (“Miller”) and Ilievski & Nolan. Some of “principles relating to the discharge of the jury” were summarised in Miller at [126], omitting (4)-(6) which relate to appellate review of such decisions:

I refer also to the helpful judgment of Dhanji J (Lonergan J agreeing and Beech-Jones CJ at CL (as his Honour then was) dissenting) in Ilievski & Nolan, especially his Honour’s careful survey of the authorities at [71]-[89] and review of the factual circumstances of that case and the directions given to the jury at [90]-[107].

I concluded that the jury ought not to be discharged essentially for the following reasons:

In my assessment, this direction will greatly diminish any risk of the jury using this evidence in any way. There may be other options to minimise the risk of prejudice. For example, the parties could agree to an agreed fact, or tightly controlled cross-examination of one of the detectives instructed to confine their answers to “yes” and “no”, which could establish (without reference to the evidence of a sawn-off shotgun) that the evidence in paragraph [8] of Ms Burton’s second stated related to matters many years ago (or “in 2017”) which have nothing at all to do with the present case.

It should be noted that if the accused adopted an approach similar to any of those canvassed in the previous paragraph or otherwise confronted the problem head on, it should not prejudice the accused in any way in the context of a potential appeal. If such an option were taken by counsel for the accused, he would have been forced to that election by the decision I made in circumstances where he submitted firmly that there was no direction capable of curing the potential prejudice: cf Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 at [48].

Another matter that the parties agreed was relevant to the decision was the fact that witnesses may have to give evidence on multiple occasions. In particular, Alexandra Klimovitch, the daughter of the deceased who witnessed the murder. She has already given evidence twice (once in the co-accused’s trial and once in Mr Hawkins’ trial). The same applies to Ms Burton. Both of those witnesses are obviously deeply affected by the events and having to give evidence in court. However, if I formed the view that the potential prejudice could not be cured, the fact that the witnesses would have to give evidence for a third time is not a matter that would justify continuing with an unfair trial.

Those are the reasons I refused the application to discharge the jury made on Friday.