Supreme Court New South Wales Medium Neutral Citation: R v Hawkins (No 8) [2020] NSWSC 1434 Hearing dates: 14 October 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Jurisdiction: Common Law Before: Lonergan J Decision: Leave to cross-examine Nakita Martyn about part of her recount of a conversation on 8 December 2018 first recounted in May 2020, is refused. Catchwords: EVIDENCE – s 32 application to revive memory abandoned – s 38 application to cross examine witness – not unfavourable – possibly prior inconsistent statement – evidence given in context of patchy memory of conversation – first recounted almost 18 months after conversation occurred EVIDENCE – s 192 discretion Legislation Cited: Evidence Act 1995 (NSW) 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. The Crown Prosecutor made an application under s 32 of the Evidence Act 1995 (NSW) ("the Act") to allow the witness Nakita Martyn to be provided with part of a statement that she made to the police in May 2020 to revive her memory or alternatively, for the Crown to be granted leave under s 38 of the Act to cross-examine Ms Martyn. The subject matter of these applications was an incomplete account in her evidence of a conversation she had with Scott Woodward on 8 December 2018. 2. The defence opposed the applications and after an exchange with the Court, the application under s 32 was withdrawn but the s 38 leave application was pressed. 3. I refused to grant that leave and these are my reasons. 4. The accused stands trial for the shooting murder of Kenneth ("Kenny") Denniss on 8 December 2018. The Crown case is that the shooting occurred in the context of an earlier altercation between the accused and Mr Denniss, during which the accused says that he was stabbed and threatened by Mr Denniss. The accused's case is that he returned to threaten Mr Denniss, but Mr Denniss had a weapon that the accused thought was a gun and he shot Mr Denniss in self-defence 5. Nakita Martyn was the girlfriend of the accused's best friend Scott Woodward. She has given evidence that she overheard and/or was present for certain relevant conversations on the afternoon of 8 December 2018. 6. The evidence presented at trial by Ms Lethbridge, the deceased's partner, indicates that after the accused first visited Mr Denniss that afternoon, she overheard Mr Denniss calling Scott Woodward abusing him for "sending" the accused to his house. 7. Ms Martyn was with Mr Woodward when this call was received by him. She gave evidence on 28 September 2020 that she "woke up to, I overheard a conversation that woke me up… and it was Kenny ringing Scott having a go at him about Daniel being at his house, collecting the bike, trying to get the bike", and that she "didn't hear exact words. It was, I could just hear a lot of loud yelling from Kenny's side of the phone through to Scott". 8. Ms Martyn was then asked: Q: Did you ask Scott Woodward anything about the phone call? A: I did ask him "What was that about?" Q: And what did he say, if anything? A: He just said, "Fuck'n Kenny's blowing up". He didn't say too much. I don't think he really knew what Kenny was blowing up about because Kenny hung the phone up on him Q: Did he say anything else specifically about the call? A: Not that I recall. Sorry. 1. On 24 May 2020, Ms Martyn had made a statement to the police in which she said this about her conversation with Scott about the phone call: "[8] I asked Scott, "Who was that?" Scott said, "Fucking Kenny". I can't remember what the whole conversation was, but Scott said that Kenny asked, "Why the fuck did you send him around for?" That was the conversation as I recall. The call didn't appear to go for long". 1. The Crown Prosecutor argued that I should permit cross-examination under s 38(1)(a) on the basis of the absence from her account given in Court of what was included in the May 2020 statement i.e. that Scott had told her that Kenny had said "Why the fuck did you send him around for". The Crown Prosecutor submitted that this absence meant that Ms Martyn's evidence was "unfavourable" to the Crown case because if she had given that evidence, it would have been "entirely consistent" with what Ms Lethbridge says. 2. Alternatively, the Crown Prosecutor argued that the failure to give that evidence amounted to a prior inconsistent statement and so the Court should permit the Crown to cross-examine Ms Martyn pursuant to s 38(1)(c). 3. Section 38 of the Act provides: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about— (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account— (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if— (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 1. The Crown Prosecutor argued that the use of the term "unfavourable" in s 38(1)(a) is broad and encompasses the circumstance here where the expected additional piece of recollection has not been given. 2. Alternatively, the Crown Prosecutor argued that the witness has made a prior inconsistent statement because she today said she could not recall anything further and that is inconsistent with her being able to recall that further detail earlier this year when she gave the account that she did in her police statement in May 2020. 3. Mr Steel submitted that it the evidence is not unfavourable in the sense of it being adverse to the Crown case and so should not be permitted. 4. Section 38(1)(b) is not engaged because there is no suggestion that the witness is not making a genuine attempt to give the evidence of which the witness is reasonably supposed to have knowledge. 5. This leaves 38(1)(c) but what the witness has said is not inconsistent, it is just that the witness did not give that specific further evidence. 6. Even if it could be considered to be a prior inconsistent statement, the Court must take into account the matters prescribed by s 192 of the Act and refuse leave. 7. Section 192 provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account— (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. Mr Steel argued that where a witness gives an account like this, a very long time after the events, and particularly where the witness makes it clear that her recall of the conversation is patchy, there is an inference available that it is not a perfect recollection. Given those considerations, even if the Court did accept that one of the subsections of s 38(1) was satisfied, leave should be refused. 2. In response, the Crown Prosecutor submitted that the Dictionary to the Act defines "Prior inconsistent statement" as: "a previous representation that is inconsistent with evidence given by the witness" and so the situation here falls within that definition. 3. Second, the Court should bear in mind that the context of the 24 May 2020 statement is that it was the first time the witness has addressed the content of telephone conversations she was involved in or heard in December 2018, and this was part of that inquiry. Given that circumstance, she cannot be criticised for not providing this information in an earlier statement Reasons for the ruling made 1. The issue here for decision is not one of potential criticism of a witness for failing to recount part of a conversation earlier when assisting the police, but is one of the quality of the evidence and the extent to which in all the circumstances, it is fair to the accused to allow cross-examination as a way to now place the evidence in question before the jury. 2. Section 32 had to be disavowed as a basis to have the evidence led, acknowledging that the statement was not made when events were fresh in the mind of the witness because it was 18 months after they occurred. 3. Each time Ms Martyn has dealt with the subject matter of her conversation with Scott - in May 2020 and in her evidence on 28 September 2020 - she has made it clear that her recollection of the conversation is incomplete. 4. I reject the argument that because her evidence given on 28 September 2020 does not line up with Ms Lethbridge's as it was expected to, means that Ms Martyn's evidence should be considered to be "unfavourable" to the Crown case. 5. If she did give that additional piece of evidence, her evidence may be thought to be more "favourable" than without it because it corroborates - indirectly - what another witness has said was what she heard at the other end of the phone conversation. However that circumstance in no way converts Ms Martyn's evidence, with that detail left out, into evidence "unfavourable" to the Crown case. 6. The absence of the additional matter could be considered to be a prior inconsistent statement under s 38(1)(c) but taking into account s 192 factors, I would refuse leave to cross-examine upon it first, because the statement was made so long after the events referred to - a period of 18 months. Second, it was given after multiple other statements had been made to the police about relevant details and events. Third, the witness has made it very clear both in her police statement and in her evidence in Court that she does not have a good recollection of the conversation. 7. In those circumstances, it would be unfair to the accused to grant leave to cross-examine the witness about that additional matter, and leave is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2020