R v Hawkins (No 10)

1. [1]

   An issue has arisen as to the use the Crown is permitted to make of lies told by the accused on 9 December 2018, the morning after the shooting the subject of this trial.

2. [2]

   On 7 March 2020, as part of the preliminary determinations for the trial before Walton J and a jury, having received evidence on the voir dire as well as written and oral submissions, Walton J ruled that evidence of those lies was admissible but deferred ruling on whether those lies could be used as evidence of consciousness of guilt.

3. [3]

   As a result of the operation of s 130A of the Criminal Procedure Act 1986 (NSW) the ruling of Walton J remains operational. No application has been made to re-visit the ruling.

4. [4]

   The Crown Prosecutor has indicated an intention to use those lies as demonstrating consciousness of guilt.

5. [5]

   The defence argues that this should not be permitted as the lies are intractably neutral and amount to no more than deflections in the circumstances.

6. [6]

   On 19 October 2020, I ruled that the lies may not be used as demonstrating consciousness of guilt. These are my reasons for that ruling.

Facts

1. [7]

   The accused shot the deceased Mr Denniss at Mr Denniss’ home at about 4pm on 8 December 2018. There had been an issue brewing about possession of a motorbike that was located at the home of Mr Denniss. At about 3pm the accused attended the home of Mr Denniss with a plan to repossess the motorbike. There was an altercation, and the accused was stabbed in the arm and threatened by Mr Denniss. He returned an hour later and shot Mr Denniss dead from a position on the driveway about 13 metres away.

2. [8]

   It is common ground that the accused’s best friend Scott Woodward is the step-brother of Mr Denniss and the accused knew Mr Denniss and his partner Taylah Lethbridge, and they knew him.

3. [9]

   When the accused attended the house at about 3pm that day, I accept that Ms Lethbridge was present during the altercation about the motorbike. Other evidence led in the proceedings from first responding police officers who arrived shortly after the shooting confirms that she knew that it was the accused who shot Mr Denniss.

4. [10]

   The accused was arrested at about 4.30am on 9 December at the address he normally lived and to where he had returned the evening before. There is no suggestion that he attempted to flee, but nor did he hand himself in to police.

The Crown and defence case and the lies in issue

1. [11]

   The Crown’s case is that the accused was angry about being stabbed by Mr Denniss and that he returned to the house with the intention of shooting Mr Denniss to kill him or at the least, to cause him grievous bodily harm, because he was angry.

2. [12]

   In the s 142 Notice served by the defence in the proceedings, the accused admitted that he shot the deceased, but maintained that he acted in self-defence. He returned to the premises with a loaded firearm to “warn off” Mr Denniss, because Mr Denniss had threatened the accused and the accused was fearful that Mr Denniss may act on those threats, including harming the accused’s children.

3. [13]

   Because the stab wound sustained by the accused required treatment, the accused was taken to hospital by police who remained with him. Evidence called on 11 March 2020 before Walton J from Senior Constable Nathan White was to the effect that he was one of two officers who escorted the accused to hospital and that he remained sitting on a chair at the end of the accused’s bed with Senior Constable Farrar whilst treatment was given.

4. [14]

   The accused was seen first by a nurse at around 6am on 9 December 2018. He was asked by the nurse how he injured his arm and he replied “I cut it on some glass.”

5. [15]

   A little later the doctor who examined and sutured his arm recorded that the accused reported a history of “running through a window with glass at approximately 20:00 hrs the evening before which caused the laceration.”

6. [16]

   These are, the Crown submits, lies that demonstrate consciousness of guilt because they are inconsistent with what a person would say if he truly believed that it was necessary to do what he did in shooting the accused.

7. [17]

   At about 9.33am on 9 December 2018, the accused still in police custody was spoken to by Detective Sergeant Gollege. He was informed that police were conducting an investigation into the death of Mr Denniss. He was offered the opportunity to be interviewed, and asked whether he knew anything about the death. The accused said “Ah, I don’t know really. Like anything. I don’t know anything about it. So. Yeah.” He was only then cautioned and was later asked: “You know nothing about it. Is that correct?” The accused replied, “Yeah. Except what I read.”

8. [18]

   The full context of the exchange needs to be examined. These things were not said to police in the context of a formal interview after the accused had been formally cautioned and/or charged. They were recorded on body-worn cameras where the accused was first considering, then deflecting police questions and then clearly exercising his right to silence:

Submissions

1. [19]

   The Crown submitted that these statements to police and the assertions to staff at the hospital are in fact admissions within the definition of the Evidence Act 1995 (NSW) because they are lies adverse to the accused’s interests in the outcome of proceedings, as telling them undermines his position that he acted in self-defence. The lies are thus admissible and of strong probative value on the issue of his intention at the time he shot the deceased, and have the potential to inform the question of whether the Crown can negate beyond reasonable doubt that the accused acted in self-defence in shooting Mr Denniss.

2. [20]

   This submission was developed in oral argument before me to assert that in this context, the lies cannot be intractably neutral because they show a consciousness of the absence of any truth in potential self-defence arguments and instead, reflect an admission that the accused knew that he had deliberately killed Mr Denniss and was trying to distance himself from that act, by lying about it.

3. [21]

   The defence submitted that the lies must be viewed in context. The lies to police occurred when the accused was being asked whether he wanted to be interviewed. He declined, but in doing so lied by saying he knew nothing about the matter except what he had read. The lies should be seen as deflections to his being interviewed in the context of the accused exercising his right to silence.

4. [22]

   The lies at the hospital were told in the presence of police and so fall into the same category – he was deflecting inquiry made of him, in police presence, rather than actively seeking to mislead so that he could hide the truth of the fact that he shot Mr Denniss.

5. [23]

   As the High Court stated in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [74], there is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral between murder and manslaughter, but this is a case where the lies are intractably neutral. There is no evidence that the accused tried to conceal the death such that it is necessary to infer that the lies were directed to consciousness of guilt of the crime of murder as opposed to some lesser offence. The lies are intractably neutral and should not be allowed to be used for a consciousness of guilt purpose.

6. [24]

   It is acknowledged that the lies may be relevant to credit and if admitted on that basis should be the subject of a “Zoneff direction” (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28), limiting their use to the question of the deceased’s credibility.

Decision

1. [25]

   I am not persuaded by the Crown’s argument that the lies can be seen to betray consciousness of guilt of the crime of murder. The lies are minor. They are nothing more than deflections in a context where the accused was attempting to understand and exercise his rights.

2. [26]

   The lies are also on any analysis intractably neutral and do not indicate that the accused did not believe his actions were necessary to defend himself.

3. [27]

   The lies told by the accused to police and to hospital staff in police presence on 9 December 2018 may not be relied upon by the Crown for consciousness of guilt purpose.