R v Hawkins (No 5) [2020] NSWSC 1410

Supreme Court New South Wales

Medium Neutral Citation: R v Hawkins (No 5) [2020] NSWSC 1410 Hearing dates: 30 September 2020 Date of orders: 30 September 2020 Decision date: 14 October 2020 Jurisdiction: Common Law Before: Lonergan J Decision: Leave is given pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to question the witness as though the Crown was cross-examining the witness as set out in paras 21-23 of this judgment Catchwords: EVIDENCE — witness evidence — unfavourable witnesses — s 38(1)(a) of the Evidence Act (NSW) 1995 – Circumscribed leave given Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Kennedy (2000) 118 Crim R 34; [2000] NSWCCA 487 R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91 R v Walton (1999) 113 A Crim R 308; [1999] NSWCCA 452 Category: Procedural and other rulings Parties: Regina (Crown) Daniel Mark Hawkins (Accused) Representation: Counsel: G Turner (Crown) N Steel (Accused)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Zhai & Associates Lawyers (Accused) File Number(s): 2018/378301 Publication restriction: Nil

Judgment 1. An issue has arisen on day 12 of the trial as to "unfavourable evidence" given in the Crown case by Lisa Chaffey. 2. I granted circumscribed leave to the Crown pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to question Ms Chaffey as though cross-examining her on the basis that an aspect of the evidence given by her was unfavourable to the Crown case. These are my reasons for granting that leave. 3. On 8 December 2018, Lisa Chaffey drove the accused and his girlfriend Sarah Hardes to the deceased's address in Beauford Street, Maryland and then drove them both back to other locations after the shooting at that address had occurred. She was at the time a friend of Ms Hardes. 4. There is no suggestion Ms Chaffey knew anything about what was to unfold that afternoon. It is common ground that she was just providing the accused and Ms Hardes with a lift. 5. The account provided in Ms Chaffey's statement to police made in February 2019 and in her evidence before the jury indicate that she dropped the accused at Beauford Street Maryland and he asked her to wait. A short time later she heard what she described as "loud bangs". Ms Hardes said "Go. Go." The accused came out and got into the car. Ms Chaffey was shocked and does not recollect what was said. She drove the accused and Ms Hardes to 4 Kenneth Street Wallsend. She describes herself as being at this time "in shock, upset, crying, quiet, not good" 6. The unfavourable evidence identified by the Crown was that in her police statement, Ms Chaffey said that Ms Hardes did not get out of the car when she dropped the accused back to 4 Kenneth Street Wallsend, but that only the accused got out. She says that she then drove Ms Hardes to a Christmas concert to attend to her children. 7. In her evidence before they jury, when asked whether Ms Hardes got out of the car when she dropped the accused to 4 Kenneth Street, Ms Chaffey said: "No. I don't think so. I can't remember. I don't think so". 1. This evidence is significant because there is other evidence before the jury from Nakita Martyn that Ms Hardes came into the premises at 4 Kenneth Street with the accused and that in the presence of Ms Hardes, the accused's friend Scott Woodward and Ms Martyn, the accused made certain admissions. 2. The Crown Prosecutor argued that given that she will be submitting that Ms Martyn's evidence should be preferred, she is obliged to first put to Ms Chaffey that those parts of her account are inconsistent with the evidence of Ms Martyn were mistaken and or untruthful. In circumstances where the Crown Prosecutor will be submitting to the jury that they should prefer Ms Martyn's evidence over Ms Chaffey's evidence, the prosecutor's duties set out in the authorities such as R v Walton (1999) 113 A Crim R 308; [1999] NSWCCA 452 and R v Kennedy (2000) 118 Crim R 34; [2000] NSWCCA 487 and R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91 require that as a matter of fairness, those questions be put to the witness to see whether she adheres to her version of events. 3. Counsel for the accused, Mr Steel, opposed the application. He argued that it cannot be said that Ms Chaffey has made a prior inconsistent statement nor could it be said she is not doing her best to make a genuine attempt to give evidence. Her evidence has remained effectively the same from the time of the first statement she made in February 2019, and that is that Ms Hardes remained in the car. Given the first statement was fairly close in time to the events that occurred, you would expect that she would not have a poor memory of something that significant. Really the only basis to allow the application is if the Court concludes that the witness is not being truthful about that matter. 4. Further, if the Court took the view that she is mistaken and therefore the alternative ought to be able to be put to her, it would cause unfairness to the accused if a process is permitted where she is cross-examined and is not, within that cross-examination, first taken by the cross-examiner to what she said about that matter in her first statement. 5. The Crown Prosecutor conceded that she ought to first put that part of the February 2019 statement to the witness as well as her evidence in chief given today, before she asks whether the witness could be mistaken or was not telling the truth as to what she said occurred. 6. The Crown Prosecutor also sought leave to put to Ms Chaffey that she was not telling the truth because she is a friend of Ms Hardes. The basis for this assertion was that in 2019 when first approached by the police to state who was driving the car, Ms Chaffey filled out a form saying it was Ms Hardes because Ms Hardes had told her to do so and that Ms Hardes would take responsibility. Ms Chaffey became uncomfortable with that and told Ms Hardes she wanted to tell the truth and in her February 2019 statement to the police she did tell the truth 7. Mr Steel submitted that the further assertion as to why Ms Chaffey was not telling the truth should not be permitted because it may lead the jury to reason impermissibly about what motives Ms Chaffey had to lie and would tend to impugn her account generally, in circumstances where there is no basis to do so and where her account of this part of the events on 8 December 2018 has remained the same.