Supreme Court New South Wales Medium Neutral Citation: R v Hawkins (No 11) [2020] NSWSC 1830 Hearing dates: 16 October 2020 Date of orders: 16 October 2020 Decision date: 15 December 2020 Jurisdiction: Common Law Before: Lonergan J Decision: The evidence of, and associated with the arrest of Blain and "Stevo" on 9 December 2018 at 3:45am in possession of a Taser and in close proximity to the house where the accused resided, is admissible. Catchwords: EVIDENCE — standard of proof — admissibility of evidence — whether evidence is relevant — accused charged with murder — self-defence raised — evidence relevant as it informs threats said to have been conveyed by the deceased — use of direction and warning to the jury Legislation Cited: Evidence Act 1995 (NSW) Texts Cited: Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Lawbook Co) 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 20 of the trial as to whether the Crown should be obliged to lead evidence regarding the arrest of Blain Findlater, the brother of the deceased's partner, in the company of another man known as "Stevo" who were found by police in very close proximity to the house where the accused resided and having on his person a Taser, at 3:45am, some less than 12 hours after the shooting. 2. The evidence comprised a "COPS" police record outlining the circumstances of the arrest, as well as two text messages sent on the morning of 9 December 2018 at 7:28am and 11:50am by Stevo to Mr Denniss' partner Ms Lethbridge. 3. The Crown submitted that such material is not relevant and should not be led, and second, that it should be excluded under s 135 of the Evidence Act 1995 (NSW) because there is a risk that the jury will misuse it. 4. The defence argued that the material passed the test of relevance to a fact in issue which was whether one of the threats that the deceased made was that he was "sending his boys" around to "get" the accused and his friend. 5. I determined that the material was relevant and permitted it to be led and these are my reasons. 6. A critical issue in this trial is whether the Crown can prove beyond reasonable doubt that in shooting Kenneth Denniss dead on 8 December 2018, the accused was not acting in self defence. The accused says that on that afternoon about an hour prior to the shooting, he was stabbed and threatened by the deceased in the context of an altercation about a motorbike. 7. There is evidence already led before the jury that Mr Denniss made a phone call just after this incident to Scott Woodward, the accused's best friend who is also the brother-in-law of Mr Denniss, "blowing up" and indicating anger towards Mr Woodward about "sending cunts around to my place". 8. The accused's case is that he was told by Mr Woodward that during that phone call Mr Denniss also said that he was "waiting for the boys to come around to get them" and that the accused was alarmed by that threat. 9. The accused says that threat was operating on his mind when he took the ill-considered step of returning to Mr Denniss' house to "warn him off" with a gun. The accused has not yet given evidence, but what he will say in this regard was put to the witness Ms Martyn who says that she overheard part of the phone call to Mr Woodward. 10. Counsel for the accused, Mr Steel, argued that the material was relevant to potentially making it more probable that there were in fact people that Mr Denniss could and would deploy that way out of loyalty or their relationship to him. 11. It is also relevant, he submitted, to the accused's belief about what he had to do to defend himself because it indicated there was some basis for the accused to hold some genuine fears although not demonstrated until after the shooting. The jury could still use the material properly in determining whether it was more probable that Mr Denniss made the comment to Mr Woodward. 12. Section 55 of the Evidence Act provides a low threshold: Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 1. Mr Steel relied upon the commentary in Uniform Evidence Law by Stephen Odgers [1] at [55.60] where it refers to the Australian Law Reform Commission explanation and rationale for s 55, noting that the definition is very wide: "The definition requires a minimal logical connection between the evidence and the "fact in issue". In terms of probability, relevant evidence need not render a "fact in issue" probable, or "sufficiently probable" – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence – ie it "affects the probability". The definition requires the judge to ask "could" the evidence, if accepted, affect the probabilities". Mr Steel emphasised the test is that the material could rationally affect, directly or indirectly the probability of a fact in issue. The material in issue meets that test and ought to be led through the officer-in-charge. 1. The Crown Prosecutor submitted that the connection is too tenuous. Mr Denniss had been dead for 11 hours by this time and there is no evidence as to what Mr Findlater and "Stevo" were doing there, and there is no evidence of a connection between the earlier comment of "waiting for people" to "come and get them" and Mr Findlater being found near the accused's premises at that time the following morning and there is no connection at all of Mr Findlater to what occurred before Mr Denniss was shot. 2. If found by the Court to be relevant, the Crown sought exclusion on the basis of s 135 of the Evidence Act because of possible misuse of the evidence by the jury as a factor against Ms Lethbridge and her role and credibility as they may infer that she sent Mr Findlater around after the death of her partner as some kind of reprisal. There is no evidence of a connection between Mr Findlater (and certainly not Stevo) and the threats made by Mr Denniss, if they were in fact made, and so this evidence being admitted encourages surmise upon surmise. The probative value is very low and the risk of misuse is high and so the probative value is significantly outweighed by potential prejudice to the Crown. A direction to the jury cannot cure the problems created by the admission into evidence of that material. 3. In reply Mr Steel submitted that any prejudice can be remedied by a direction to the jury and the defence does not wish to use it on any basis against Ms Lethbridge, but only that it makes it more likely that Mr Denniss would make a threat in those terms or that he did in fact make that threat, and that is the only purpose for which that evidence can be used. Decision 1. In my view the evidence is relevant. The fact in issue that it potentially informs, perhaps indirectly only, is the likelihood that Mr Denniss had "boys" that he could prevail upon to go around to the house of the accused or Mr Woodward and conduct threatening activity and so makes it potentially more likely that he did say that to Mr Woodward. What the evidence can be viewed by the jury to demonstrate is that there were "boys" close to or with loyalty to the deceased who placed themselves in the street armed with a Taser where they must have known the accused was likely to be located, in the hours after the accused shot their friend. 2. The attitude expressed in the text messages sent to Ms Lethbridge after their arrest expressing as they do, loyalty to and regard for the deceased may be thought by the jury to bear upon the likelihood or otherwise of the truth of what the accused says was his understanding via Mr Woodward of a specific further threat conveyed by the deceased to Mr Woodward on the phone. 3. The reality of threats made by Mr Denniss is a key issue in the case. Although the evidence in issue addresses events occurring after the death of Mr Denniss, it is material that sheds light on relationships and loyalties and is not of negligible or slight probative value. It has some recognisable probative value. Properly directed, the jury can use this material to assist in its reasoning and fact finding as to whether the threat allegedly made by Mr Denniss on the phone just after Mr Denniss stabbed the accused and that Mr Woodward is said to have conveyed to the accused, was in fact made in the terms asserted. 4. In terms of addressing any unfair prejudice, the jury can and will be directed that they cannot use the evidence adversely against Ms Lethbridge or to determine the credit of Ms Lethbridge and emphasising that there is no evidence she knew anything about it. 5. Any unfair prejudice to the Crown can be dealt with by a carefully formulated direction and warning as to the limited use to which the evidence can be put, and in particular that it cannot be used in any way to make any adverse finding about Ms Lethbridge because there is no evidence that she knew anything about that, and it cannot be used to reach any adverse conclusions about her credibility. 6. The evidence should be led by the Crown through the officer in charge of the investigation, subject to an agreed form of direction as outlined. ORDERS 1. The evidence of and associated with the arrest of Blain and "Stevo" on 9 December 2018 at 3:45am in possession of a Taser and in close proximity to the house where the accused resided is admissible. ******* Endnote 1. Stephen Odgers SC, Uniform Evidence Law (15th ed, 2020, Lawbook Co). 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: 15 December 2020