R v Hawkins (No 9)

1. [1]

   On day 17 of the trial, the Crown sought leave under s 108 of the Evidence Act 1995 (NSW) to adduce evidence of what it asserted were prior consistent statements of a witness to the shooting of the deceased Mr Denniss, Taylah Lethbridge. She gave evidence at the trial to the effect that she and Mr Denniss had their arms around each other at the time she says she saw the accused point the gun and fire at Mr Denniss.

2. [2]

   The evidence is important because it has the potential to undermine the defence case that Mr Denniss came “flying” out of the shed with a weapon in his hand, a home-made mace, that the accused thought was a gun.

3. [3]

   The statements sought to be led were things said by Ms Lethbridge to police very shortly after Mr Denniss was shot dead, recorded on the body-worn cameras of two early responding police officers.

4. [4]

   Counsel for the accused Mr Steel opposed leave. First, because the portions relied upon are not prior consistent statements and cannot be viewed as such and so s 108 is not engaged at all and second, even if they were, leave should not be given, bearing in mind the requirements of s 108(3).

5. [5]

   After receiving written submissions and oral argument, I refused leave. These are my reasons.

Section 108 Evidence Act – Exception to the credibility rule

1. [6]

   Credibility evidence about a witness is not admissible: s 102 Evidence Act. Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witnesses’ ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence: Dictionary to the Evidence Act.

2. [7]

   This rule, known as the credibility rule, excludes credibility evidence about a witness unless an exception applies.

3. [8]

   Section 108(3) of the Evidence Act applies as an exception to the rule:

4. [9]

   The Crown seeks to re-establish the credibility of Ms Lethbridge by the tender of statements they say comprise prior consistent statements.

The evidence of Ms Lethbridge

1. [10]

   Ms Lethbridge relevantly gave the following evidence in chief:

2. [11]

   Ms Lethbridge’s account was challenged in cross-examination:

The evidence sought to be led – extracts from the body worn camera video

1. [12]

   The material sought to be led contains the following relevant assertions as recorded in the videos:

2. [13]

   Also tendered for context was a transcript of a portion of a statement of Senior Constable Blyth referring to what was shown on other body worn video taken at about 16.33:

3. [14]

   At the request of counsel I viewed the footage containing the conversations set out in [12] (b)-(d).

Submissions and decision

1. [15]

   The Crown submitted that there is consistency between the statements set out in [12] and Ms Lethbridge’s oral evidence because she repeats that she tried to pull the deceased away and that she thought that she had pulled him into the path of the shot. The approach in cross-examination indicates that it will be submitted, either expressly or by implication, that evidence given by Ms Lethbridge has been fabricated or reconstructed – deliberately or otherwise.

2. [16]

   As submitted by counsel for the accused, the fatal difficulty with the Crown’s application is that none of the previous statements sought to be relied upon qualify as “prior consistent statements”, and so the application falls at the first hurdle.

3. [17]

   The dictionary to the Evidence Act describes a prior consistent statement of a witness as “a previous representation that is consistent with the evidence given by the witness”.

4. [18]

   Whilst the recorded previous statements by Ms Lethbridge indicate that she was somewhere nearby, close enough to “try to pull him away” and that he (Mr Denniss) was “right next to me”, none of these statements are consistent with the very specific evidence given that she and Mr Denniss actually had their arms wrapped around each other such that they had to, together as one, “shuffle” into view of what she described was the already open garage door.

5. [19]

   None of the prior out of court assertions by Ms Lethbridge refer at all to their arms being wrapped around each other. There is no reference to Mr Denniss pushing her at the same time as she pulled him. The prior statements sought to be led paint quite a different picture, including in one piece of footage tendered, showing Ms Lethbridge grabbing her friend with one arm on the forearm when demonstrating what she says she attempted to do to pull Mr Denniss.

6. [20]

   None of the evidence sought to be led comprises a prior consistent statement and so the leave sought under s 108(3) is refused.