R v Hawkins (No 10) [2020] NSWSC 1931

Supreme Court New South Wales

Medium Neutral Citation: R v Hawkins (No 10) [2020] NSWSC 1931 Hearing dates: 16 and 19 October 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Common Law Before: Lonergan J Decision: 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. Catchwords: EVIDENCE — admissions — criminal proceedings — lies told by the accused to police and hospital staff — whether identified lies can be used for consciousness of guilt — whether the lies are intractably neutral — context surrounding when the accused told the lies — accused charged with murder — self-defence raised by the accused Legislation Cited: Evidence Act 1995 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Procedural 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 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. 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. 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. The Crown Prosecutor has indicated an intention to use those lies as demonstrating consciousness of guilt. 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. 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.