R v Hawkins [2023] NSWSC 1370

Supreme Court New South Wales

Medium Neutral Citation: R v Hawkins [2023] NSWSC 1370 Hearing dates: 3, 4 October 2023 and 7 November 2023 Date of orders: 13 November 2023 Decision date: 13 November 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) The evidence of the conversation identified as Event 4 is admissible. (2) The evidence of Event 5 is not admissible. (3) The electronically recorded interview is inadmissible except for the questions and answers at questions 21-28 and 47-52. (4) The accused may elect the way in which that evidence is adduced before the jury. (5) The evidence in Event 7 is not admissible. Catchwords: CRIMINAL LAW – evidence – admissibility of admissions not recorded electronically – three conversations not recorded – whether reasonable excuse for failure to record – police evidence largely rejected – spontaneous statement by the accused and attempt by police to adopt it in recorded interview – reasonable excuse established – evidence admissible – where 18 minute interrogation in interview room containing recording equipment – "rapport building" – "conversation management" – phrases devoid of meaningful content in context of interrogation – no reasonable excuse – evidence rejected – where conversation held in cells – accused in Corrective Services custody at police station – police concern that Corrective Services would not permit telephone or handheld recording device – no application to take handheld recording device into cells – no application to have accused transferred back to police custody – reasonable excuse not established – evidence inadmissible – mandatory exclusion where failure to comply with "precise and rigorous requirements" of provision CRIMINAL LAW – evidence – electronically recorded interview – right to silence – practice of taking suspect to interview room against their wishes and legal advice – practice not to be encouraged – where solicitor advised police of advice and accused man's wishes – attempts to undermine right to silence – improper conduct – desirability of admitting such evidence – evidence excluded except for questions calculated to adopt earlier out of court statements Legislation Cited: Crimes Act 1900 (NSW), s 424A (Repealed) Criminal Procedure Act 1986 (NSW), s 108 (Repealed) Criminal Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (NSW), ss 138, 138(3) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), Div 3 reg 28 Cases Cited: Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196; [2005] HCA 1 R v FE [2013] NSWSC 1692 R v Fleming (Costs) [2023] NSWSC 1258 R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 R v Reid [1999] NSWCCA 258 R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241 Texts Cited: International Covenant on Civil and Political Rights Category: Procedural rulings Parties: Rex Jason Paul Hawkins Representation: Counsel: B Hatfield and R Meagher (Rex) B Bickford (Hawkins)