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for questions calculated to adopt earlier out of court statements Legislation Cited: Crimes Act 1900 (NSW), s 424A (Repealed) Criminal Procedure Act 1986 (NSW), s 108 (Repealed) Criminal Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (NSW), ss 138, 138(3) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement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) Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Hugo Law Group (Hawkins) File Number(s): 2021/00336983 Judgment 1. The accused, Jason Paul Hawkins, is charged with the murder of Stacey Klimovitch on 9 June 2021 at Stockton, Newcastle. He was charged jointly with Stuart Campbell and Stephen Garland. The prosecution case is that Mr Campbell organised the killing, that Mr Garland drove Mr Hawkins to the scene and that Mr Hawkins shot Mrs Klimovitch in the chest with a shotgun in the doorway of her home. Mr Campbell committed suicide while in custody awaiting trial. On 9 October 2023, I made an order for the trials of Mr Garland and Mr Hawkins to be held separately. [1] On Wednesday 8 November, the jury returned a verdict of not guilty of murder but guilty of manslaughter in Mr Garland's case. The prosecution intends to call Mr Garland as a witness in Mr Hawkins' trial. 2. Mr Hawkins takes objection to four parts of the evidence which the prosecution seeks to adduce against him. Each contains out of court statements made by the accused to police officers. In three instances, the objection is based on the failure of the investigators to record the conversations in accordance with s 281 of the Criminal Procedure Act 1986 (NSW). The Prosecutor seeks to lead evidence of these conversations, which occurred on 29 and 30 November 2021, through the officers. The fourth objection concerns an electronically recorded interview with police that took place on 29 November 2021. That objection is based on asserted improper or illegal conduct on the part of the investigators and, in particular, an allegation that the officers disregarded Mr Hawkins' repeated statements, made on the basis of legal advice, that he did not wish to be interviewed. If the assertion of impropriety is established, the question of admissibility falls to be determined by reference to s 138 of the Evidence Act 1995 (NSW). 3. The documentary evidence was tendered during a pre-trial hearing on 3 October, [2] and written submissions were also provided at that time. [3] Officers Murphy and King gave evidence on 4 October and the argument was adjourned until the jury retired in Mr Garland's trial. The parties made oral submissions on 7 November 2023 after the jury in Mr Garland's trial retired to consider its verdict. The out of court statements and identification of the evidence to which the objections relate 1. The Prosecutor identified eight "events" during which the accused made representations to the police. There are objections to four of those events, one is not pressed and the other three will be led before the jury without objection. To understand the objections, and to place the evidence in a sensible context, it is useful to set out those events in chronological sequence and to adopt the Prosecutor's numbering. Event 1: "Vehicle stop" on 10 June 2021 1. At 11:53am on 10 June 2021, the day after the murder, Mr Hawkins was in the back seat of a Holden Astra that was stopped by police. The car was being driven by his partner Jessica Burton and there were two other people in the car (by that time, Mr Campbell had been arrested by police for possession of a "pen gun" and items suspected to be drug paraphernalia). 2. Mr Hawkins was asked about his whereabouts on the day of the murder by Senior Constable Donovan and their conversation was recorded on the officer's body worn video. Mr Hawkins made the following statements (as summarised in the Prosecutor's submissions): 1. He saw Mr Campbell at work all day; 2. He went home to 1 Victoria Street Argenton at around 7pm; and 3. He went to sleep at around 11.30pm/12am [the implication being that he got home at 7pm and did not leave until going to sleep]. 1. The prosecution will rely on these statements as lies, either as evidence undermining his credibility or as evidence betraying a consciousness of guilt. It will rely on closed circuit television footage ("CCTV") to establish that Mr Hawkins was around the house at Argenton during the day and that he was at the house at 33B Main Street Heddon Greta (from which Messrs Garland and Hawkins departed for Stockton) between 6.15pm and 6.55pm. Ms Burton is expected to give evidence that the accused left 1 Victoria Street at dusk and returned at around 10:00pm. 2. No objection is taken to this evidence. Event 2: Arrest in the Australian Capital Territory (ACT) on 26 November 2021 1. Mr Hawkins was arrested on 26 November 2021 by Australian Federal Police officers. He said, "someone took my phone in Newcastle". 2. No objection is taken to this evidence. Event 3: Conversation with himself in the ACT Watchhouse on 26 November 2021 1. Mr Hawkins appeared to speak with himself when he was taken to a watchhouse in the ACT, and this was recorded by CCTV. However, the quality of the recording was such that it was unclear precisely what was said, and it was open to different interpretations. The Prosecutor properly and fairly determined that it could not safely be left in the hands of the jury. 2. The evidence was not pressed. Event 4: Conversation with Detective Murphy in the dock at Queanbeyan Police Station on 29 November 2021 before Mr Hawkins was taken to the interview room 1. Mr Hawkins was extradited from the Australian Capital Territory to Queanbeyan Police Station in New South Wales. He was advised of his rights pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). Mr Hawkins told the custody manager that he did not wish to speak to a lawyer because he had spoken to one earlier in the day. [4] 2. Detective Senior Constable Timothy Murphy says that he was standing with the accused waiting to take him to an interview room, when he had the following conversation with him: [5] "Mr Hawkins: 'I don't know how it ended up in this predicament.' Detective Murphy: 'What do you mean', Mr Hawkins: 'Well one minute I was in Newcastle, getting pulled over and now I'm here'. Detective Murphy: 'You understand why you're here?', Mr Hawkins: 'Yeah, I've been stitched up. I went to Newy to help Stuey do some roofing work. Next thing I know my bag and all my stuff had been gone through at that joint I was staying at across the road from the pub. I lost my phone whilst I was up there. There was weird stuff just going on at that joint, Detective Murphy: 'What do you mean you lost your phone?', Mr Hawkins: 'Well it was gone. You can ask my Dad. He rung it and some bloke answered it saying he was from National Parks or something', Detective Murphy: 'Ok, well we are going to give you the chance to tell us all your side of the story now. Do you want to come through with us now?'" 1. Detective Murphy described the above exchange as "a spur of the moment conversation started by [Mr Hawkins]", while they waited for Detective King to get the interview room ready. He said there was no recording equipment available to capture the conversation and he told Mr Hawkins that he would have an opportunity to tell the detectives more about what had happened during the recorded interview. [6] 2. Objection is taken to this evidence. Event 5: Conversation with Detective King in the interview room before the recording equipment was activated 1. After the conversation just described, Mr Hawkins was taken into an interview room equipped with electronic recording equipment. Before the equipment was activated, Detective King told Mr Hawkins that the police had "a large volume of evidence against him, and others involved" in the murder of Mrs Klimovitch. Mr Hawkins responded that "he had no idea about the murder, his 'phone had been stolen and he was being set up by Stuey". [7] 2. Mr Hawkins told the detectives that his father had tried to call his 'phone and someone from the National Parks Service had answered it. He denied that he had deliberately not taken his 'phone to Stockton and repeated the assertion that he could not have committed the murder because his 'phone was lost or stolen. Mr Hawkins said that he had not attempted to retrieve his 'phone since it was lost or stolen. [8] 3. When Detective King informed Mr Hawkins that they had arrested the driver of the Holden Commodore, who had made admissions that Mr Hawkins was involved in the murder, Mr Hawkins "denied it, saying that he 'did not know the guy'". [9] 4. Mr Hawkins told detectives that on 9 June 2021, after "working for Stuey", he went back to the house across the pub, fell asleep during the State of Origin and did not leave the house for the rest of the night: [10] "Detective King: 'Are you sure about that?' Mr Hawkins: 'Yeah I fell asleep during the state of origin', Detective King: 'And you didn't leave the house at all?'. Mr Hawkins: 'No', Detective King: 'There is a pub across the road from that house that has CCTV', Mr Hawkins: 'No, I was stuffed from working all day', Detective King: 'We have CCTV footage of you driving away from that house late in the afternoon', Mr Hawkins: 'Oh well yeah I left that once', Detective King: 'We know exactly when you left. You told police the next day that you had been working on the jobsite all day, but we have recordings of you coming and going throughout the day.'" 1. When Detective King informed Mr Hawkins they had CCTV footage of him leaving the house, Mr Hawkins paused and said: [11] "Mr Hawkins: 'Okay, I came up to Newcastle a few days before right, and then drove this black ute back. I packed up a kilo of bling from Campbelltown and took it to Canberra to give it to his mates', Detective King: 'Whose mates?', Mr Hawkins: 'Stuey's. Mat[e] and some other bloke', Detective King: 'Who owned the ute?', Mr Hawkins: 'One of Stuey's mates.'" 1. Mr Hawkins said that the ute he picked up was owned by a person who lived with Mr Garland. This was the first time that Mr Hawkins mentioned Mr Garland's name. Mr Hawkins then said, "this was set up by Stuey and Garland". The following conversation is then recorded in the statement of both police officers: [12] "Detective King: 'Tell me about Garland', Mr Hawkins: 'Steve. National Treasurer of the Nomads. You don't fuck with them', Detective King: 'Describe him?', Mr Hawkins: 'Short, old guy, neck tattoos.'" 1. Mr Hawkins repeated that "this was a set up" by Mr Campbell. He said that he had completed roofing work for Mr Campbell and had not been paid. [13] 2. In a statement dated 2 October 2023, Detective King provided the following explanation as to why this conversation was not recorded: [14] "That conversation was not recorded electronically as the accused Hawkins had not indicated that he was willing to participate in a record of interview at that point. Detective Senior Constable Murphy and I told the accused [Hawkins] what we intended asking him during the interview. Detective Senior Constable Murphy made notes during this conversation. I intended on adopting this conversation with the accused [Hawkins] during his ERISP interview however this did not happen after the accused [Hawkins] made it clear he did not want to answer any further questions." 1. Objection is taken to this evidence. Mr King was cross-examined on the voir dire, and I will return to his evidence and that of his colleague Mr Murphy in the context of determining whether, in the terms of s 281 of the Criminal Procedure Act, there was any "reasonable excuse" for the failure to record this conversation electronically. Event 6: The electronically recorded interview 1. At 2.39pm Detectives King and Murphy conducted an electronically recorded interview ("ERISP") with Mr Hawkins. Shortly after the interview commenced, Mr Hawkins said that he wanted to speak to his lawyer and the interview was suspended at 2.41pm to allow him to obtain legal advice. Mr Hawkins spoke to a lawyer from the Aboriginal Legal Service ("ALS"). [15] 2. Detective King said in a statement dated 12 April 2022 that Mr Hawkins "said that he did not want to answer any further questions". The statement continued: [16] "I asked him if he wished to go back into the interview room to finalise the interview and he agreed." 1. This was contrary to the advice received from the ALS which seems to have been communicated to the detectives. The ALS "Call Form Records" indicate the accused was "[a]dvised say nothing, don't go on tape, don't go into interview room" and that Mr Hawkins accepted that advice. [17] There were three such forms, prepared by two different ALS solicitors. Each form says that the client's wishes, and acceptance of the legal advice, were communicated to the police. I do not accept the (at least implicit) submission by Senior Counsel that the weight these documents should receive is reduced because they are in a standard form — described as a "tick-a-box" — prepared by the ALS. [18] In any event, as Senior Counsel acknowledged, Mr King accepted that the lawyer had conveyed these things to him. [19] 2. Mr Hawkins was taken back to the interview room and the interview resumed at 3.07pm. Detective King confirmed the accused had spoken to a lawyer from the ALS and said (at Q21) "now I understand Jas it's, you don't want to answer any more questions" and the accused replied "No". [20] 3. The interview then continued: [21] "Q22 Alright that's fair enough. The, um, if that's the case we won't ask you any more questions about the actual offence. I just want to ask you a few clarifying questions about what we've spoken to up to this point okay. So, earlier on Detective Murphy had a quick chat to you while you were in the dock … Q23 [22] Mmm. Q24 … out there. Do you agree that you told him that um, this was a set up by a person by the name of Stuey? A Yeah, and someone else, like I don't know who the fuck, whose the instigator, the puppet master. I shouldn't even be sayin' that, she said say nothing. Q25 It's completely up to you if you don't want to say anything… A Yep. Q26 … I just want, want you to um, know if you agree that's what you said to… A No, that's yep. Q27 … to um, Detective Murphy earlier on. Would you like to tell us who Stuey is? A He's the bloke he hired me to roof, do roofin' with him. So I went up there, helped, I know he's got a company down here, and he had, he's got a company in the ACT. And I thought fucken I'll go up there, I got introduced by someone. Yeah, um, and that's it. I thought if I go up, help him, prove, prove my fucken way he'll fucken put me on down there cause I need the work you know, that's all there was to it. Q28 Do you know his last name? A Campbell. Q29 So how did you meet him though? A I got introduced to him through someone else in the drug scene. Q30 In which state? In Canberra, right. A That's it. Q31 And he told you he was a roofer? A Mmm Q32 And what, offered you work. A Yep." 1. Mr Hawkins told detectives again that he did not want to answer any more questions: [23] "Q43 Yeah. When did you come to Newcastle? A Went up there, ah, she's saying not to answer anything and youse keep (laughing)… Q44 You don't have to say anything if you don't want to. I'm going to keep asking questions while ever you keep answering them, so. A Yeah, nup, I'm not gonna say no more. Q45 You don't want to say anything else? A Nup. Q46 Alright, um, sorry." 1. Detective Murphy then asked questions about the earlier conversation: [24] "DETECTIVE SENIOR CONSTABLE MURPHY Q47 Can I just, in that conversation we had earlier when we were out there, you also told me that you had lost a mobile phone whilst you were in Newcastle, with Stuart. Can you tell me about that? A Mate. Nup, Q48 No? A Youse, youse, youse have the number. Youse have got all the fucken tools to find what happened to my phone. Who got it, how'd it, how'd it get from wherever you said it was found to fucken the national park where they're sayin' it, when my dad rang. My dad will come to court. Q49 We don't understand, what I'm saying you told me your dad had rung this phone that you lost whilst your in Newcastle - - - A Yep Q50 - - - and spoken to someone. We don't know that. That's why I've asked - - - A Nup. Q51 - - - you about it. A Well that's what I'm saying. Q52 Yep. A In court it'll be brought out you know. Yep." 1. Mr King then resumed asking the accused questions: [25] "DETECTIVE SENIOR CONSTABLE KING Q53 Do you know anything about what happened to Stacey KLIMOVITCH? A No. Q54 Do you know who might have done it? A All I know is I'm being fucken stitched up, and they're fucking me with no lube. Yeah, with no fucken lubricant. That's it. Q55 Who's they? A Huh? Q56 You're saying you're being stitched up. Who are they? A Who's your fucken crown witness. Yeah, the fucken bikie club. Can I go out now please. Like, I got family, kids, I don't want them in fucken danger and this is puttin' them in danger. Yeah. And youse are taking the word of a fucken bikie cunt. … Most probably done a hundred murders. Q57 I understand what you are saying and that sounds - - - A Yeah. Q58 - - - it sounds like that. A And I'll, I'll guarantee my barristers will destroy him. Q59 We have corroborated the vast majority of what he's told us - - - A Yeah. Q60 - - - to be true. A What, what because they had my phone and fucken other shit, like that's crap. Like it's fucken bullshit. That's it, I don't wanna answer no more questions. Q61 Alright. A Please." 1. The detectives then stopped asking questions. A "senior police officer not connected with [the] investigation" entered the interview room at 3:15pm and Messrs Murphy and King left. The following is recorded by way of adoption of the interview: [26] "Q73 Um, have you taken part of this recorded interview of your own free will? A I was, I was advised by legal not to come into this room - - - Q74 OK. A - - - they, they got me to come back in here - - - Q75 OK. A - - - and I said look I don't want to answer no more questions - - - Q76 Yep. A - - - they kept throwing questions to me - - - Q77 OK. A - - - because I said something to 'em about my phone going missing and shit - - - Q78 OK. A Yeah, and I said look I don't wanna answer no more questions they just kept going you know - - - Q79 Yep. A - - - like I been thrown under the bus by some fuckers - - - Q80 OK. A - - - and this is fucked. Q81 Alright. Um, I suppose, were there any promises made to you to take part in the interview? A No. Q82 Nup, OK. A There were no threat or … Q83 OK cool that was going to be my next questions, Thanks Jason. So was there any threat made - - - A No. Q84 - - - to you to take part in this interview? Um, were you induced to take part in this interview? Do you know what that means? A Yeah, it's like was there pretty much was there any promises - - - Q85 Yep, yep, excellent. A - - - yep, nup. Q86 Alright, um, aside from what you mentioned before that you were advised not to come into the room - - - A Yep. Q87 - - - do you have any complaints about the way in which you were interviewed? A Yeah, yeah I told them in the dock that I didn't wanna come back in here. Q88 OK. Alright. A And, and they said look you need to come back in here and fucken say, say stop, like stop the interview and that. Q89 OK. A And I know that's shit, you know what I mean? Q90 So when, when um, so I understand you came, came in here, sorry so you were given advice not to come in here, but you came in anyway. Is that correct? A Yeah. Q91 Yep, um – A Cause they said to me just say it on the thing and that's it - - - Q92 OK. A - - - you know, and then they sayin', we'll just, we'll just tell you what we've got - - - Q93 Yep. A - - - and I'm like mate I don't wanna hear it. I was advised not to come - - - Q94 Yep. A - - - and they're like but just come in and just state that and say you don't wanna have no part in an interview - - - Q95 OK. A - - - and then they just kept asking question, question, question - - - Q96 OK. A - - - and I'm like. Q97 Did you, so, were you able to exercise your right to silence where you said you don't want to comment or how? A I kept saying to 'em - - - Q98 OK. A - - - look I don't wanna answer that, I don't wanna talk no more - - - Q99 OK. A - - - I want outta here. Q100 OK. Alright. A And they're like one more question. Q101 OK. A One more question. Q102 Alright. A One more question, you know. Q103 Did you, did you feel like the questions were, I … A They're fucken tryin' to lead, they, they were tryin' to lead me - - - Q104 OK. A - - - somewhere. Q105 Um, were, did you give the answers that you gave though - - - A Of my own free will, free will? Q106 Yeah. A Um, yeah. Q107 Yeah. A To a point yeah. Q108 Yeah. A To a point. Q109 Alright excellent. Alright, um so aside from that do you have any complaints about the way you were interviewed? A No. Q110 OK, excellent. Thank you mate. Um, is there anything else you want to say? A No." 1. The interview concluded at 3.13pm. [27] 2. Objection is taken to this evidence on the ground that it was improperly or unlawfully obtained. The impropriety alleged concerns the persistent questioning in the face of the detectives being told by the accused and the ALS lawyer that the accused did not want to be interviewed or be taken into the interview room. Event 7: Conversations in the cells at Queanbeyan Police Station on 30 November 2021 1. On 30 November 2021 Mr Hawkins appeared at Queanbeyan Local Court where his bail application was withdrawn, and bail was refused. Detectives King and Murphy attended Mr Hawkins in the cells attached to the Queanbeyan Police Station. The officers said that Mr Hawkins had indicated that he wanted to talk to them as he was taken from the court room. That evidence was not challenged and nor was the proposition that, at that stage, the accused was in the custody of Corrective Services. There was a conversation that was not recorded electronically but detailed in the officers' statements and in the investigators note. [28] 2. Detectives King and Murphy said the following conversation took place: [29] "Detective King: 'How are you Jas? You want to talk to us?', Mr Hawkins: 'Yeah I spoke to Jess yesterday and she told me to tell the truth, so I want to tell you want happened', Detective King: 'Okay, I'm not going to organise to get you out until you give me a brief understanding of what you are going to say but before you say anything I want you to know that you do not have to say or do anything. Anything you say or do will be recorded and can be used in evidence. Do you understand that?', Mr Hawkins: 'Yeah', Detective King: 'Righto, what happened?', Mr Hawkins: 'Alright, I was at that house. Not the Stockton one, the other one. There were two guys there that looked like me and Stuey', [Detective King], 'What?', Mr Hawkins: 'There were some guys at that house that looked like me and Stuey', Detective King: 'Jas don't bother. If you're not going to tell the truth I'm not interested in talking to you anymore about this. Jess told you to tell the truth, so tell the truth. We know who was at the house at Argy and we know who were at the house at Heddon. There were two guys that looked like you and Stuey, and that was you and Stuey.'" 1. Mr Hawkins asked the detectives if Mr Garland had been charged with murder. When Detective King said that Mr Garland had not yet been charged, Mr Hawkins responded saying: [30] "Mr Hawkins: 'So that cunt gets off and I get done for murder', Detective King: 'He's not getting off,' Mr Hawkins: 'Yes he is, he's fucking lied, and you believe him. He said that I dropped a shell. Do you have it?', Detective King: 'No, if we did it would have been in the fact sheet', Mr Hawkins: 'Yeah because he's full of shit', Detective King: 'We have been able to corroborate a lot of what he has told us. Do you know what that means? It means we have been able to prove a lot of what he said based on what we already knew from CCTV and phone records and interviews.'" 1. Mr Hawkins read the statement of facts that had been provided to him. Mr Hawkins then said: [31] "Mr Hawkins: 'This is fucking bullshit, this bit about the hitman. What the fuck, I don't speak Latin', Detective King: 'It doesn't matter that you don't speak Latin, it's from him to you,' Mr Hawkins: 'Yeah but did I reply to it?', Detective King: 'I haven't got the records in front of me, but we are saying it's relevant because it is from Campbell to you', Mr Hawkins: 'And I'll tell you what was in the bag in the car, the cash from the kilo I took down from Garland', Detective King: 'Who did you do the bling for, Garland or Campbell?' Mr Hawkins: 'Garland. He is the main man?', Detective King: 'Why is he the main man?' Mr Hawkins: 'He's in the bikies', Detective Murphy: 'Why would Garland organise it. He's got no beef with her', Mr Hawkins: 'Nor do I', Detective King: 'Campbell had a beef with her. Like it says in the facts, we are going to say that he organised it, you pulled the trigger and Garland drove you over there. It's no secret Garland has spoken to us, it's in the facts', Mr Hawkins: 'Does he get a deal?', Detective King: 'If he pleads guilty, he will get a discount and if he helps us he can also get another discount', Mr Hawkins: 'Do I get that?', Detective King: 'Everyone who pleads guilty gets a discount. The other discount depends on how much you help us. Every situation is different so I can't give you a definite answer', Mr Hawkins: 'If you get in writing that I will do no more than 15 years', Detective King: 'I can't do that.'" 1. The detectives spoke to Mr Hawkins about receiving a sentencing discount if he told the truth of what happened that night. Mr Hawkins told detectives that he wanted to speak to his lawyer. [32] 2. Detectives King and Murphy left to attend to other duties. They say they returned "around an hour later" but Mr Hawkins had been "loaded into" a Corrective Services van. [33] In the Investigators Note, Detective King said he asked Mr Hawkins if he wanted to tell the detectives what had happened and the accused replied, "Not now, but I will later. Come and see me". [34] 3. Objection was taken to this evidence on the grounds that it was not recorded in accordance with s 281 of the Criminal Procedure Act. Event 8: Conversations with Detective Faber at the remand centre on 21 December 2021 1. On 21 December 2021 two different police officers (Detectives Faber and Aspinall) went to see Mr Garland while he was in custody at the Metropolitan Remand and Reception Centre ("MRRC") for the second time. He was advised of his LEPRA rights by the custody manager and spoke to a solicitor. Mr Hawkins said to the detectives that his solicitor advised him to "say nothing". Detective Faber told Mr Hawkins that they were just going to speak to him and that he did not have to answer any questions. Mr Hawkins was taken to an interview room. The conversation Mr Hawkins had with the detectives was not recorded electronically but was set out in Mr Faber's statement dated 5 April 2022. [35] 2. No objection is taken to the prosecution leading evidence of this conversation. 3. In the interview room the detectives told Mr Hawkins that they would play him CCTV which showed his movements at the Heddon Greta house on the 9 June 2021. The detectives stated that he did "not have to say or do anything" unless he wished to. Mr Hawkins responded saying "[y]eah, I'll have a look". The detectives showed footage of Mr Campbell and Mr Hawkins arriving separately at 33B Main Street Heddon Greta on 9 June 2021, meeting Mr Garland outside and walking into the house together. They also showed footage of Mr Campbell, Mr Hawkins and Mr Garland going outside and standing in the driveway next to the Holden Commodore. The following conversation took place between Detective Faber and Mr Hawkins: [36] "Detective Faber: 'That's when something was placed into the boot.' Mr Hawkins: 'Yeah, so? I wasn't the only one there was I?' Detective Faber: 'No.'" 1. The detectives showed footage of Mr Hawkins, Mr Campbell and Mr Garland going back inside and then later Mr Hawkins leaving the house. Detective Faber commented about the additional clothes Mr Hawkins was wearing and the conversation continued: [37] "Detective Faber: 'As you can see, as you left you picked up your jacket and red cap you put there when you first arrived.' Mr Hawkins: 'It's not my red cap.' Detective Faber: 'Okay.'" 1. The accused was then shown CCTV footage in which Mr Campbell left in his ute and Mr Garland and Mr Hawkins left separately in the Holden Commodore: [38] "Detective Faber: 'And now you'll see Campbell driving off in his ute and you follow with Garland.' Mr Hawkins: 'Yeah, I'll say I was there, that's me. But I got out of the car and got dropped off just up the road.' Detective Faber: 'Yeah. Okay.' Mr Hawkins: 'I didn't do it, I've got my Facts, I've read it, he's a bullshit artist. You go your hardest if you're going to believe him.'" 1. At paragraph [139] Detective Faber said: [39] "Well that brings me to the real reason I'm here today. You indicated to the boys in Canberra when you were arrested that you might want to speak to us again …" 1. He said Mr Hawkins "cut me off and said '[n]up, I've read the Facts, it's all bullshit and he's a fucking liar'". When the detective responded saying, "you're obviously referring to [Garland]" and "[w]e can corroborate most of the actions [Garland] has described in his version of events through our investigations. I don't believe everything he says, I find it hard to accept he didn't know he'd taken part in a murder", Mr Hawkins raised his voice and said "[o]h, fuck off he didn't". According to Mr Faber's statement, Mr Hawkins then suddenly stopped speaking. [40] 2. Detective Faber asked Mr Hawkins whether he wanted to supply a statement for the investigation. During their conversation Mr Hawkins spoke to a lawyer from the ALS. While on the 'phone to the ALS, the detective asked him to tell his lawyer that police wanted him to participate in an identification parade. Mr Hawkins responded that his solicitor had advised him to not participate in the parade. Once he finished speaking with his solicitor, he had the following conversation with the detective: [41] "Mr Hawkins: 'Can I go back now?' Detective Faber: 'I take it you don't want to continue to discuss what we were just talking about.' Mr Hawkins: 'Nup, they've told me not to say anything.' Detective Faber: 'Okay, you're on your own then.'" 1. Mr Hawkins was taken back into custody and the detectives then left the correctional centre. [42] The police officers' evidence on the voir dire 1. Both Detectives King and Murphy were called to give evidence on the voir dire. Neither Detective Faber nor Detective Aspinall gave evidence. There was no suggestion put to the officers that the conversations that were not recorded were fabricated although there was some criticism of the process of recording those statements. The evidence of Timothy Murphy 1. Detective Murphy said that the conversation he had with Mr Hawkins in the dock prior to the interview was not recorded because it happened in the "spur of the moment" and there was no recording equipment immediately available. He told Mr Hawkins that he would have the opportunity to tell the detectives more in the recorded interview. He said he told Detective King about his conversation with Mr Hawkins before the interview and made a written note of the conversation later that day. He attempted to get the accused to adopt the conversation in the recorded interview. Detective Murphy also made written notes of the unrecorded conversation that Mr Hawkins had in the interview room with Detective King. [43] 2. Detective Murphy gave evidence that the investigators' note was written by Detective King and had been commenced once Mr Hawkins was extradited to New South Wales. He (Murphy) had input into the investigators note. Mr Murphy accepted that the unrecorded conversation he had with Mr Hawkins (before they went to the interview room) was not detailed in the investigators' note, but that the unrecorded conversation they had in the interview room was included in that note. [44] 3. After the recorded interview, Mr Hawkins was charged. Detective King handed Mr Hawkins the police facts sheet and Mr Hawkins commented on it. Detective Murphy made written notes of Mr Hawkins comments; however, his comments were not mentioned in either statement from the detectives or in the investigators note. The exchange was described as follows: [45] "Mr Hawkins: 'This is so untrue, right. You say that I got there on the 9th, right', Detective Murphy: 'Yeah', Mr Hawkins: 'Well, I was there for three days. I missed my methadone for three days', Detective King: 'You got there early in the morning on the 9th. You had been there and gone back to Canberra and then come back again. We have CCTV and phone records', Hawkins: 'You need to ring my dad, hey. He will tell you about that phone. I didn't have that phone. Someone took it.'" 1. Mr Murphy said that, when he and his colleague went to speak with Mr Hawkins in the cells of Queanbeyan Police Station, they did not know what Mr Hawkins wanted to speak to them about. In any event, they could not record the conversation because there was no recording equipment in that area, and they had no opportunity to ask him to adopt the conversation in a recorded interview, because Mr Hawkins wanted to speak to a lawyer and was later placed in the Corrective Services van. Detective Murphy did not make any handwritten notes of the conversation but both detectives wrote about the conversation in their statements and in the investigators note. [46] 2. Detective Murphy said that when Detectives Faber and Aspinall went to speak to Mr Hawkins on 21 December 2021, they had read the investigators note prior to interviewing Mr Hawkins. [47] 3. In cross examination, Detective Murphy agreed that while Mr Hawkins had started the conversation with him in the dock, he kept asking Mr Hawkins questions. When asked whether he should have stopped the conversation so that it could have been recorded, Detective Murphy said that he tried to "shut [Mr Hawkins] down" by telling him that he would have opportunity to speak more in the recorded interview. However, Detective Murphy agreed that he had asked Mr Hawkins three questions before he attempted to stop him from speaking. Detective Murphy recognised that it was usual police practice to record the questioning suspects electronically and that the purpose of this was to ensure its accuracy. As a police officer he has been trained to record a suspect's admissions. He said that he was aware of s 281 of the Criminal Procedure Act at the time of interviewing Mr Hawkins. [48] 4. Detective Murphy said that there was recording equipment in the interview room and agreed that Detective King asked Mr Hawkins a number of questions in the interview room before the recorded interview started. There was around 18 minutes of unrecorded conversation during which the detectives asked Mr Hawkins questions. [49] 5. When asked why he did not turn on the recording equipment during the initial 18 minutes of questioning in the interview room, Detective Murphy testified: [50] "Q. Why not just turn on the recording equipment? A. Well, at that point, he's telling us certain information that we want to know as part of our investigation. In my experience, sometimes when we - well, most of the times when we turn tapes on, people do shut down, and decide not to talk. He was freely giving us information, and we asked him questions. Q. He's freely giving you information, and you're asking questions, is that some indication that he might continue to talk once the tapes are on? A. How do you mean? Q. You hadn't dealt with him before, had you. A. No, not personally, no. Q. You didn't know whether he was going to shut down if you turned the tapes on? A. No, that's correct. Q. You could have just turned them on, couldn't you? A. Could of. Q. That was an opportunity available to you, yes? A. Yes. Q. An opportunity that you didn't take? A. Correct. Q. And now we've got 18 minutes worth of conversation that's not recorded? A. Correct." 1. Detective Murphy agreed that most of the conversations he recounted in his statement were in identical terms to the record in Detective King's statement. He said that he took information from the investigators note and, to an extent, relied on and trusted Detective King's memory when writing his statement. [51] 2. Detective Murphy accepted that after Mr Hawkins obtain legal advice, he was brought back into the interview room and questioned despite saying he did not wish to continue with the interview. The officer also agreed that police did not ask the accused to adopt everything he had said outside of the interview room or in the 18 minutes of questioning that occurred when he first entered the interview room. He said that Detective King tried to have Mr Hawkins adopt some of the admissions that he made in the dock: [52] "Q. Are you saying that Detective King asked Mr Hawkins to adopt some of the things that you say he'd said to you at the cell door? A. Yes. Q. Where? A. In question 56, he asks, 'You say - you're saying you're being stitched up. Who are they?' Which I would say is in reference to when he told me earlier that he had - he was stitched up. Q. It's in reference to the earlier question, isn't it? Did you read the earlier question? 'Do you know who might have done it?' And then the answer? A. Yes. Q. 'All I know is I've been fucking stitched up'. That's the answer, isn't it? A. Yes. Q. Isn't that what Detective King is asking about? A. Well, I would say that it relates back to the previous conversation we had." 1. Detective Murphy said that they stopped attempting to get Mr Hawkins to adopt his earlier statements in the recorded interview because he refused to answer questions. [53] 2. Detective Murphy said that, although he knew Mr Hawkins wanted to speak to him and Detective King in the cells of Queanbeyan Police Station, he did not believe it was necessary to arrange to have Mr Hawkins formally interviewed, because it would have required making an application or request to Corrective Services to get him out of the cell: [54] "Q. You gave some evidence about speaking with Mr Hawkins in the cells on the following day, 30 November 2021? I think that was after a court appearance, is that correct? A. Correct. Q. That cell complex that you've given some evidence about, is that in the same building as the police station at Queanbeyan? A. Yes. Q. So the same building that has that recording equipment available? A. Yes. Q. And you thought - when you went down to see him, that he wanted to talk to you? Or you and Detective King? A. Yes. Q. And given your knowledge of section 281 of the Criminal Procedure Act, were you thinking at that time that it might be prudent to try to arrange to have [Mr Hawkins] transported into an interview room where he can be recorded? A. Not at that particular point, no. Q. Would it just mean transporting him into a different part of the building to have that done? A. No, so he's in Corrective Services custody, so we would have to make application for a section 25 to the Corrective Services Commissioner to have him back out of their custody to interview him again." 1. However, Detective Murphy agreed that applying to Corrective Services for Mr Hawkins to be interviewed or recording Mr Hawkins on his 'phone were two options that could have been taken to ensure what was said by Mr Hawkins was recorded. [55] 2. Detective Murphy agreed that there was nothing in the statement of Detective Faber which indicated that he intended to adopt the unrecorded statements Mr Hawkins made to Detective Murphy and Detective King in the interview on 21 December 2021. [56] The evidence of Benjamin King 1. In examination in chief Detective Senior Constable King confirmed that Detective Murphy told him about the conversation he had with Mr Hawkins in the dock prior to the recorded interview. He agreed that there was recording equipment in the interview room when they had the unrecorded conversation with Mr Hawkins. He said the purpose of that conversation "was to explain to Mr Hawkins the process of the interview, the workings of the machine" and "what [he] intended to ask him during the interview". He said that he did not record that part of the interview because that was the "standard procedure" which he had followed "throughout [his] whole career". [57] 2. Mr King said he commenced to make the investigators note the day after the interview and finished on 1 December 2021. He used the investigators note when preparing his statement dated 12 April 2022. He did not make any written notes during the unrecorded conversation with Mr Hawkins; Detective Murphy took notes at that time. [58] 3. Mr King acknowledged that he was aware that Mr Hawkins had legal advice not to be interviewed and that he (the officer) spoke to the ALS lawyer on the telephone. He acknowledged that the accused said he did not want to answer any questions. He asserted that he continued to ask Mr Hawkins "clarifying questions" so that he could "adopt the conversation that [Mr Hawkins'] had with Detective Murphy on tape". He asked Mr Hawkins about "Stuey" so that Mr Hawkins could identify Mr Campbell. He asked Mr Hawkins whether he knew "what happened to Stacey Klimovitch" to see if Mr Hawkins "knew anything about it" and "to see whether he would answer". [59] 4. The detective agreed that there were relevant things said by Mr Hawkins which the detectives did not attempt to have him adopt in the interview. He said this was because Mr Hawkins declined to answer questions: [60] "Q. Just identify the topics that are dealt with in that statement. This is your statement. In that conversation you had with him, just cover the topics, and see if you agree. It included that his phone had been stolen that you've referred to at 201. A. That's right. Q. Sorry, at 203, there was a reference that he did not - you were referring there to the driver of the Commodore. A. That's right. Q. The response from Mr Hawkins was that he did not know the guy, the person you understood as being Garland. A. Yes, that's right. Q. Then at 203 to 204, Mr Hawkins had said that he had been working that day, went back to the house, and had fallen asleep during the statement of origin. A. That's right. Q. Then after you gave him some further information, he then said the information at 205 about a kilo of bling. A. Yes. Q. As explaining some conduct. A. Yes. Q. At 206, he then referred to Garland being in the Nomads. A. Yes. Q. At 207, about it being a setup. A. Yes. Q. You agree they were potentially relevant things that he'd said in that conversation you'd had before the tape was running. A. Yes. Q. You didn't attempt to adopt those in the interview, do you agree, as the attempted at least being done at some point with the Murphy conversation. A. Yes. Q. Why didn't you attempt to adopt those things in that interview? A. It was my intention to adopt them. I didn't get to that point after he declined to answer any more questions." 1. Detective King's explanation for the failure to record the conversation in the cells after the abandoned bail application was multifaceted. He said he did not have any writing material, his 'phone or any equipment to record the conversation. He said he had "[n]o idea" what Mr Hawkins wanted to speak about and that the police officers were not prepared to interview him: [61] "Q. What was the purpose for going back to him an hour later at that point when he was in the transport van? A. To see whether he'd changed his mind and wanted to talk to us again. Q. Just about this conversation, the conversation we've just been through in the cells on 30 November of 2021, so I asked you what was your purpose in having that conversation with Mr Hawkins. A. You mean my original purpose of having that conversation. Q. Yeah. A. Well, I didn't know what he wanted to talk about to start with. Q. What is the reason why that conversation wasn't tape recorded? A. I didn't have one. I wasn't prepared for a conversation like that at that time either." 1. Detective King did not make any handwritten notes during the conversation in the cells but recorded the conversation in the investigators note that afternoon. He said that he spoke to Detective Faber and a decision was made to re-interview Mr Hawkins, with the intention of adopting the conversation in the cells during that interview. Detective Faber had a copy of the investigators note which detailed the conversation Detective King had with Mr Hawkins. [62] 2. In cross examination, Detective King agreed that there was a period of 18 minutes when the detectives were speaking to Mr Hawkins but not recording the conversation, even though there was equipment available in the interview room. He acknowledged that it was police practice to use electronic equipment to record the questioning of suspects. He said that he was aware of the operation of s 281 of the Criminal Procedure Act when he questioned Mr Hawkins in custody. [63] 3. Detective King repeated that during those 18 minutes they did not take written notes. He agreed that it would have been easier to record all of the conversation, but he disagreed that there was nothing preventing him from turning on the recording equipment on, as Mr Hawkins had not indicated that he wanted to be electronically interviewed. [64] 4. Detective King said that it was standard practice for detectives to talk to accused people first before they turn the tape on. However, he also said that each officer exercises their own discretion as to how they want to proceed with the interview: [65] "Q. But you decided to talk to him anyway, without turning the tapes on? A. Yes, but that's just my standard practice with everyone I have in custody. HIS HONOUR Q. Is it your standard practice, or is that what you're trained to do? Is it police officers in New South Wales standard practice, or is it just your standard practice? A. Your Honour - sorry. Q. Is it just your standard practice? A. No, it's the standard practice of the interview system that prior to the commencement of the interview, they are told how the interview process works. In terms of, the recording will be conducted on three audio DVDs, you'll be given a copy at the end, you can contact the legal practitioner of your choice. Questions like that. And then when the interview starts, there are - there's a guide of preformatted questions that you can run off, and they're all adoption questions that essentially start with, 'Do you agree prior to the commencement of this interview, I intend to ask you further questions about this', 'Do you agree prior to the commencement of the interview, I intended - I told you that this would be audio and electronically recorded', and so on. So, some officers, some detectives like to outlay the allegations first. I like to do that out of fairness for the offender. Some don't, they just roll straight into the interview. It's - I wouldn't say it's fluid, but it's up to the officer to a certain extent as well." 1. Detective King agreed ultimately that recording the whole interview is the fairest procedure: [66] "Q. You said you'd do that out of fairness to the offender? A. I always do it out of fairness, yes. … HIS HONOUR Q. Officer, you volunteered the fairness observation, and Mr Bickford's asking you whether it would be fairer to record it, so that everything is being recorded, and there can be no dispute such as the one we're now spending a day on. And I'd invite you to answer his question, rather than arguing with him. A. I apologise, your Honour. Yes, the ultimate answer would be yes." 1. The officer gave evidence that he speaks with a suspect prior to an interview for the purpose of "rapport building" and for "conversation management". He agreed the strategy was designed to encourage a suspect to provide information: [67] "Q. On this day, you went a bit beyond the standard procedure, didn't you? You asked lots of questions about the investigation? A. I wouldn't say it was beyond standard, no. Q. That was part of your standard procedure to do that? A. No, if someone's talking, I don't generally stop them, unless, you know, the need arises, or I can - I realise that there's a point where I need to stop them, and then I say right, we'll talk about this later on during the interview. Q. What if someone who's doing the talking is suspected of committing a really serious offence, and you're investigating them? Do you consider stopping them, and saying look, it's best that we just try and record this? A. Yes, definitely, yes. Q. You didn't do that on this occasion? A. Well, I did stop and then start the interview, yes. Q. After 18 minutes' worth of conversation. A. Not - the entire conversation was not just about this, what I've put in my statement. There's also some rapport building as well, when you're, you know. Q. Sorry, rapport building? A. Rapport, you know, you just talk to them essentially, and I remember talking to Mr Hawkins about Jess, and you know, just family issues and that sort of thing first. … Q. I'm sorry, why are you trying to build rapport with him? A. Conversation management, just get him talking. Q. That's a strategy to try to encourage a suspect to try to give you some information? A. That's right, yes. Q. But aside from the information that you've talked a little about rapport building, there's I think in your paragraph eight paragraphs worth of information that at some points quotes the things that you and him are talking about, yes? A. That's right. Q. It's quite a bit of questioning, wasn't it, that was aside from any rapport building? A. Yes." 1. Detective King was shown the documents tendered as Ex VD-2 which records the advice provided by the ALS solicitor and the fact that the advice was accepted by the accused and was communicated to the police. He said he commenced the interview despite being aware of those matters. [68] 2. He agreed that he did not attempt to have the accused adopt the exact words he used in the earlier conversations and that he kept asking Mr Hawkins questions, even after he indicated that he did not want to answer any more questions: [69] "Q. It might have been based on that conversation, but you weren't asking him to adopt the words that you say that he'd said. A. You're saying that I didn't ask him to adopt the exact words. No. That's right, no. Q. And that's because you hadn't spoken about, or you hadn't asked him the question earlier, 'Would you like to tell us who Stuey is?' It's the first time you asked that question. A. On the recording? Q. Yes. A. It's the first time I asked that question on the recording, yes. Q. But also the first time you asked the question on that day? A. That specific question, but we had talked about him earlier. Q. And this particular matter, then, it relates to - doesn't it, information that Mr Hawkins had indicated that he didn't want to answer any questions about. Yes? A. That's right. Q. And that's something that his solicitor had conveyed to you as well. Yes? A. Yes. Q. But you kept asking questions anyway. A. Yes." 1. He kept asking Mr Hawkins questions because the accused kept answering them. This included asking Mr Hawkins "[d]o you know anything about what happened to Stacey Klimovitch?": [70] "Q. So by this stage, you're not even trying to get him to adopt any of the prior statements, are you? A. I hadn't at that stage, no. Q. You could have tried to ask him to adopt some of the other statements that you're now saying that he said to you when the tapes were off, couldn't you? A. I could have, yes. Q. But you didn't? A. No. Q. To use your words, you just wanted to keep asking questions while ever he kept answering them. A. That's right." 1. Detective King said that it was his intention to not to ask Mr Hawkins questions about the offence, but once Mr Hawkins started talking, he just kept asking questions. [71] 2. The cross-examination included confirmation that the detective did not have any electronic recording equipment ready when he went to speak with Mr Hawkins in the cells because he "didn't know what [Mr Hawkins] wanted to talk about at that stage". [72] 3. Detective King said that Mr Hawkins could not have easily been transported to a room upstairs with recording equipment, because there was a process involved in moving him from his cell. However, he agreed that it was an option that was open for him to take. He gave evidence that he was not allowed to have his 'phone in the cell complex and was unable to use his 'phone to record the conversation. He agreed that he could have asked for approval to use his 'phone but did not do so, electing to go straight in to see Mr Hawkins. [73] 4. Mr King did not arrange to attend Mr Hawkins in Silverwater Correctional Centre on the day he spoke to him in the cells. He did not accompany Detective Faber to interview Mr Hawkins in Silverwater because he had suffered an injury. However, he believed that Detective Faber intended to have Mr Hawkins adopt the unrecorded conversations in the interview on 21 December 2021. He could not remember where he had read that and agreed that Detective Faber did not mention this in his statement. [74] The relevance of the evidence and the legal framework in which the decision as to admissibility is made 1. There is no doubt, and no real dispute, that the evidence of what Mr Hawkins said to the police in these various conversations is relevant evidence. There are some direct admissions as well as statements that other evidence is capable of demonstrating are false. The prosecution would rely on such evidence to undermine the credibility of Mr Hawkins' explanations and, possibly, to establish a consciousness of guilt on his part. Further, as the Prosecutor submitted, the admission of only parts of the conversations would deny the jury the ability to place the particular conversations, to which objection is not taken, in a proper context and to evaluate the extent to which the accused's version of events changed and grew. Other parts of the evidence are exculpatory, and the Prosecutor intends to adduce such evidence in accordance with authority and the Prosecutor's duty of fairness. [75] 2. However, where the objection is based on the failure of the investigators to record the admissions without a reasonable excuse, the Court has no discretion to admit the evidence over objection, no matter how powerful the evidence is in establishing the guilt of the accused: Criminal Procedure Act, s 281. This is in contrast to a situation of impropriety or illegality, where s 138 of the Evidence Act requires the trial judge to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting it, given the circumstances in which it was obtained. Three of the four objections relate to the failure to record the admissions and the prosecution relies on the circumstances in which the admissions were made, and the evidence of the two detectives, in contending that there was a reasonable excuse in each case for the failure to record the admissions. The statutory requirements and desirability that admissions be recorded 1. The requirement (or desirability) that admissions be electronically recorded did not start with s 281, or its predecessors. [76] In the late 1980s the High Court emphasised "the existence and increasing availability of reliable and accurate means of audiovisual recording" and, by 1991 established the requirement for careful judicial direction where police fail to use the available technology: see Carr v The Queen (1988) 165 CLR 314; [1988] HCA 47 and McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6. 2. By the end of 1995, the New South Wales Parliament had introduced s 424A to the Crimes Act, a section which was in relevantly the same terms as the current s 281. The current section provides: 281 Admissions by suspects (1) This section applies to an admission— (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless— (a) there is available to the court— (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section— … reasonable excuse includes— (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. 1. The accused relies on s 281 in raising his objection to the admissions and statements made in the course of the conversations described above as events 4, 5 and 7. In each instance, there is no issue that the conversations were not recorded and the question is whether there exists a reasonable excuse for not recording them and/or whether there is a recording of the kind referred to in s 281(2)(a)(ii). 2. Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196; [2005] HCA 1 ("Nicholls") concerned Western Australian legislation of a similar nature although it was not in the same terms. McHugh J, having discussed the issue of fabrication of such admissions (which is not Mr Hawkins' case) went on to say at [99]: "The broader problem of admissions to police includes not only possible fabrication of admissions or police perjury, but also problems associated with the perception, recording, recollection and transmission to the court of those admissions. It includes problems of pressure, coercion and oppression in relation to the making of the alleged admissions, and misunderstanding, inaccurate recording and misrecollection in relation to the perception, recording, recollection and transmission to the court of those admissions." 1. McHugh J explained at [108]: "… The Legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of off-camera admissions, despite the presence of recording equipment, and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions even though, if the officers' evidence is accepted, the case comes within an exception specified in s 570D(2). Given the legislative policy of recording interviews of suspects wherever possible so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded." 1. In R v Reid [1999] NSWCCA 258 Smart AJ ("Reid") said: "65 Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a 'reasonable excuse' as much will depend upon the circumstances. 66 The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape [recorder], albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions. 67 It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview. 68 If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led. 69 Attempts to circumvent [s424A] will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP." 1. Spigelman CJ said at [6]: "Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour's remarks are based on an assumption that the prosecution will seek to rely on any admissions. Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s424A must be satisfied." 1. Moving to the electronically recorded interview and the asserted infringement of Mr Hawkins' right to silence, I commence with the authorities to which I referred to in the case of R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241 ("Taleb"): "124. In The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21, Barwick CJ said: 'In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant. But evidence of relevant statements or admissions obtained by conduct in breach of that rule will not for that reason become irrelevant and inadmissible. The breach of the rule will afford a ground for considering the exercise of a judicial discretion to exclude such evidence.' 125. In Plevac v R (1995) 84 A Crim R 570, the Court of Criminal Appeal set out a number of propositions concerning the proper questioning of suspects including: 'Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible.' 126. See also the judgment of Adamson J in R v FE [2013] NSWSC 1692. 127. The 'rule of practice' referred in Ireland in 1970 remains part of the law in NSW. Legislative enactments have emphasised the right to silence. Section 139 of the Evidence Act provides that a failure to advise an arrested person of their right to silence will result in a finding that the evidence was obtained improperly. While no automatic consequence flows from a failure to issue a caution, or from a failure to respect a suspect's clear statement that they wish to remain silent, there seems little point in requiring police to ensure the person knows their right, if their decision to exercise that right is ignored or side-stepped." 1. However, it has been held that there is "no absolute rule" that persistent questioning after a suspect has indicated that they do not wish to be interviewed will result in the exclusion of the evidence. In R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 the Court said: "54 There is no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence. This was made clear in Kerrie-Anne Clarke NSWCCA 31 October 1997, when Hunt CJ at CL said: 'It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.' 55 Smart J similarly observed: 'It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities. It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances.' 56 In an appropriate case, it may well be that despite some initial reluctance, the person interviewed may elect to continue with the interview, and even see an advantage in providing further information with a view to dispelling doubts, or answering matters which may give rise to suspicion. Any apparent impropriety in continuing to question a suspect may turn out, in those circumstances, to be of such little weight as not to justify exclusion of the ERISP as evidence. Each case must be determined upon its own facts, and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed, or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover, in any weighing exercise the probative value of the evidence needs to be taken into account." 1. On the other hand, Adamson J (as her Honour then was) made important observations in the case of R v FE [2013] NSWSC 1692 (to which I made passing reference in Taleb): "… The accused's right to remain silent and not be compelled to answer questions that might tend to incriminate her in the commission of the crime of murder has been described as a 'fundamental . . . bulwark of liberty', which is not merely a rule of evidence but a basic and substantive common law right: Reid v Howard (1995) 184 CLR 1 at 11 per Toohey, Gaudron, McHugh and Gummow JJ. In Petty v The Queen (1991) 173 CLR 95 at 99 the plurality (Mason CJ, Deane, Toohey and McHugh JJ) described the following principle as a 'fundamental rule of the common law': 'A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.'" 1. The parties also addressed the helpful judgment of Kirk JA (with N Adams J and RA Hulme JA agreeing) regarding these issues in Mann v R [2023] NSWCCA 256, although it was accepted that the impropriety in that case was of a much greater gravity. Findings, resolution of the objections and rulings 1. I now proceed to indicate my findings and rulings based on the foregoing summary of the evidence on the voir dire and relevant legal principles. Event 4: Conversation with Detective Murphy in the dock at Queanbeyan Police Station on 29 November 2021 before Mr Hawkins was taken to the interview room 1. I accept the evidence of Detective Murphy that the conversation with Mr Hawkins in the dock of Queanbeyan Police Station, before he was taken to the interview room, occurred suddenly and in circumstances where the officer did not have recording equipment available. I am satisfied that Mr Murphy's instinctive response was to ask a couple of follow up questions. I am also satisfied that an attempt was made in the ERISP that followed to have Mr Hawkins adopt the statements he made. In making that finding, I have put to one side the impropriety or otherwise of the police conduct in conducting that interview or in continuing it. 2. Taking all of the circumstances into account, I am satisfied that there was a reasonable excuse for failing to record the conversation and admissions and I make the following ruling: * The evidence of the conversation identified as Event 4 is admissible. Event 5: Conversation with Detective King in the interview room before the recording equipment was activated 1. Senior Counsel for the prosecution acknowledged that the conversation between Detective King and the accused, which occurred over a period of around 18 minutes in the interview room before the recording equipment was switched on, is more problematic. I have concluded that the conduct of the police represents a flagrant breach of s 281. I do not accept the explanations proffered by the police officers for the failure to record this conversation. 2. The questions could not properly be categorised as "rapport building" or "conversation management" as asserted by Mr King. I found those explanations to be largely devoid of any real meaning in the context of the interrogation that actually occurred before the equipment was activated. Nor does a police officer's experience that suspects sometimes clam up or stop talking when the recording equipment is switched on constitute a "reasonable excuse" for the purposes of s 281. If it did, the section would be rendered nugatory. 3. Detective King said that the "standard procedure" was to have a conversation before an interview commences and said that this may involve explaining what will occur, ensuring that the accused understands their rights, and providing an explanation of the way the technology works. In most cases, there could be no criticism of that, but the questioning under consideration did not fit that description. 4. I do not accept Mr King's evidence that he laid out the allegations before commencing the interview proper (and pressing the record button) "out of fairness for the offender". If this is thought to be a "standard practice", it is a bad one. As discussed in argument, if in such circumstances a suspect were to respond by making a full confession to a crime such as murder, such a confession may well be — by operation of the statute — inadmissible in any subsequent criminal trial. As Spigelman CJ emphasised in Reid such conversations might be used by police as part of their investigations or intelligence, but the admissions will not be admissible in criminal proceedings unless "the precise and rigorous requirements" of s 281 are satisfied. For the reasons explained by McHugh J in Nicholls, there is more to be considered than whether there is an allegation that police fabricated the admissions. It is the ultimate tribunal of fact — not the investigating police — which will receive the most benefit from seeing, in a properly recorded interview, an accused person's initial response when the allegations and evidence gathered to that point is put to them. It is one thing to advise the suspect in advance of the nature of the offence and the substance of the allegation. It is a different thing to engage in a relatively lengthy interrogation which is not recorded in accordance with the statutory requirements. 5. The simple fact is that the detectives engaged Mr Hawkins in an 18 minute conversation about extremely serious allegations where there was a purpose-built recording device available to be used. There was no reasonable excuse for the failure to activate the equipment and no attempt to have the accused adopt the things he said shortly afterwards when the recording was turned on. Accordingly: * The evidence of Event 5 is not admissible. Event 6: The electronically recorded interview 1. The accused bears the onus of establishing that there was an impropriety or contravention of Australian law in obtaining the evidence, subject to the objection, in the ERISP. If that onus is discharged, the onus shifts and the evidence "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained": Evidence Act, s 138(1). In determining the latter question, I must take into account the non-exhaustive list of considerations in sub-s 138(3). 2. The impropriety asserted is that the detectives disregarded Mr Hawkins' repeated statements that he did not wish to be interviewed and, in doing so, breached or undermined his right to silence. There is little doubt that the officers continued to question the accused despite him indicating several times that he did not wish to answer questions. Further, the accused's lawyers directly communicated with police the accused's position that he did not wish to be interviewed. 3. I accept that the evidence contained in the interview was obtained improperly. Mr Hawkins' answers to the independent officer at the conclusion of the interview, set out at [34], fortifies me in that view. 4. However, at least at the beginning of the interview, I do not consider the impropriety to be particularly egregious or grave: s 138(3)(d). Mr Hawkins had his rights explained to him by the custody manager and this was recorded in the custody management records. By the time the interview commenced, the accused had been given the opportunity to speak to a lawyer. However, when asked to confirm this, he said, "they totally misunderstood me" and asked to speak to another lawyer. The detectives suspended the interview almost immediately and the accused spoke to another ALS solicitor. 5. After he received further legal advice, the detectives took the accused back into the interview room. I am satisfied there was some impropriety in that because it seems clear, by that stage, that the accused and his solicitor had indicated that Mr Hawkins wanted to exercise his right to silence and accepted his lawyer's advice not to be taken into the interview room. The police practice of taking suspects to an interview room despite their clear indication that they do not wish to be interviewed should not be encouraged by the courts. 6. That the officers were aware of Mr Hawkins desire to exercise his right to silence is clear from the first question from Mr King after the break (Q21): "… now I understand Jas it's, you don't want to answer any more questions." 1. Mr King said, "that's fair enough" and "we won't ask you any more questions about the actual offence" (Q 22). He said they would ask "a few clarifying questions" which led to questions calculated (properly) to have Mr Hawkins adopt the earlier conversation he had with Detective Murphy (Event 4, which I have held to be admissible). 2. In view of the terms of s 281, the police may (rightly) have thought it was important to get Mr Hawkins to adopt the earlier conversations. They did attempt to adopt the "quick chat" with Mr Murphy: see questions 22-24 and 47-52. In responding to the first series of questions, Mr Hawkins volunteered some extra information, and the police asked a legitimately clarifying question as to "who Stuey [was]?" (Q27). By question 46, Mr Hawkins had expressed his desire not to say anything else on at least four occasions during the interview including: "A… she's [the solicitor] saying not to answer anything and youse keep (laughing) … Q44 You don't have to say anything if you don't want to. I'm going to keep asking questions while ever you keep answering them, so. A Yeah, nup, I'm not going to say no more." 1. Detective Murphy then asked what was, in effect, two or three questions (but is recorded as six questions from questions 47-52). These were directly designed to have his earlier "chat" — instigated by the accused spontaneously — adopted. 2. Mr King then asked, "[d]o you know anything about what happened to Stacey [Klimovitch]?" (Q53) and "[d]o you know who might have done it?" (Q54). Asking those question was contrary to Mr King's statement a few minutes earlier that the police would not ask any more questions about the actual offence; or, to put it another the way, that the police would respect, and not seek to circumvent, Mr Hawkins' right to accept legal advice and to remain silent. 3. By that stage the impropriety, and the attempt to interfere with Mr Hawkins' rights, was very grave. Mr King's mindset found voice in his statement that he would keep asking questions while the accused kept answering them. It seemed that Mr Hawkins – who is a "vulnerable person" under the relevant legislation and regulations [77] – was required literally to exercise his right to silence. That is, to have his right to silence respected, he was required to remain mute in the face of repeated questioning in circumstances where his liberty was deprived, and he was in a small interview room in the presence of two experienced interrogators. 4. I have considered the matters in s 138(3) of the Evidence Act and will set those matters out in summary form by reference to the paragraphs of that sub-section: * (a) and (b) - The evidence of the accused adopting the conversation with Mr Murphy has some probative value and is relatively important. The balance of the interview does not fit that description although it is relevant for the jury's consideration of other things that Mr Hawkins said and to its evaluation of the credibility of Mr Hawkins' account subsequently provided to Detective Faber. That account is to be admitted without objection and, in essence, asserts that he got into the car with Mr Garland at Heddon Greta but was dropped off a short while later and that he did not travel to Stockton. His case will be that he was "set up". * (c) - The seriousness of the allegation — an execution style murder — militates in favour of the evidence being admitted in spite of the impropriety. * (d) - As I have said, the impropriety is quite grave and became increasingly so as the interview proceeded. Mr King's conduct was more egregious than that of Mr Murphy. * (e) - I have concluded that the improper conduct, at least on Mr King's part, was deliberate. In view of the involvement of the solicitor at the outset, the conduct of both officers was at least reckless. The accused was taken to the interview room despite a clear indication that he accepted legal advice and did not want to be placed before the recording equipment. * (f) - The right against self-incrimination is enshrined in the International Covenant on Civil and Political Rights and the conduct of the police did violence to that right. * (g) - It seems unlikely that there is any other remedy to deal with the improper conduct. * (h) - The evidence – that is Mr Hawkins' statements and responses – could not have been obtained by other means. That is simply because he sought to exercise a right enshrined in law after the advice of his legal adviser. 1. Balancing those and other considerations, I have concluded that the only parts of the interview that may be admitted into evidence pursuant to s 138 are those parts where the accused responded to questions designed to have him adopt the conversation with Mr Murphy, including the follow up questions. That encompasses the questioning at questions 21-28 and 47-52. Otherwise, the ERISP is not admissible. The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence given the gravity of the impropriety and the fact that it goes to the heart of a right enjoyed by all citizens. 2. The evidence could be led through the police officers and without the need of playing what would be a very short, truncated, and edited copy of the audio-visual recording. Those representing the accused may make an election as to the manner in which the evidence is adduced and liaise with the prosecution in facilitating that. 3. The parties may also reach an agreement that other parts of the interview should be played for the purposes of providing the context in which those answers were given. I refer here to the introductory questions and questioning by the independent officer at the end. However, to be clear, I would not allow any of the evidence apart from questions 21-28 and 47-52 over objection. It may also be, given that the conversation with Mr Murphy does not appear to be in dispute, that it is not necessary to lead the evidence at all. However, if pressed, the prosecution can adduce the evidence through the officers or (with the accused's consent) by playing an edited copy of the interview. 4. To be clear, in relation to event 6, I make the following rulings: * The electronically recorded interview is inadmissible except for the questions and answers at questions 21-28 and 47-52. * The accused may elect the way that evidence is adduced before the jury. Event 7: Conversations in the cells at Queanbeyan Police Station on 30 November 2021 1. I turn finally to the admissions made during the conversation in the cells after Mr Hawkins' bail application was withdrawn. Once again, this conversation was not recorded. The prosecution relies on the evidence of the detectives in submitting that there was a reasonable excuse for the failure to record it by audiovisual means. The evidence is set out earlier in this judgment. 2. The first "excuse" [78] offered is that the accused instigated this conduct by indicating by a gesture that he wanted to speak to the detectives in the cells. The detectives said they did not know what Mr Hawkins wanted to speak about. The circumstances in which the accused made the gesture included that he was in court charged with murder and had been interviewed about the murder by the same two detectives the day before. It is difficult to accept that he wished to speak to the officers about anything other than his current predicament or the offence the police were investigating. While the officers may not have known precisely what the accused might say to them, I am unable to accept that they had "no idea" that the accused wanted to speak about the offence or the investigation. [79] Given the circumstances and the fact that the officers had spoken to the accused about the murder the day before, I am unable to accept that this was a reasonable excuse for not recording the conversation. 3. The second explanation for the failure to record the conversation is twofold. First, there was no recording equipment in the cells. I accept that was the case. However, the accused submitted, and put to the detectives, that they could have taken some form of handheld recording device, including a telephone which had the capacity to record either audio or video or both. The officers stressed that, by the time of this conversation, the accused was in the custody of Corrective Services and that there were difficulties in taking telephones and other devices into facilities under the control of Corrective Services. 4. Each officer was cross-examined to the effect that an available option was to make a request to those in charge of the facility (which was the cells attached to the Queanbeyan Police Station) either: 1. to have the accused transferred back to police custody, or 2. to permit police to take a recording device into the cells to record the conversation and be in compliance with s 281. 1. The witnesses accepted that these were available options. However, neither option was attempted. 2. I am unable to accept that the nature of the accused's custodial situation constitutes a "reasonable excuse" for the failure to record the conversations. It seems unlikely that police officers would not be granted permission by Corrective Services to take a handheld recording device or a telephone into the cells, or that arrangements could not have been made to have the accused placed back into police custody. However, it is unnecessary to speculate on that issue. The fact is that no attempt was made and, as a result, I am not satisfied that there was a reasonable excuse for failing to comply with s 281 of the Criminal Procedure Act. 3. The final question concerns whether there was an attempt made to have the accused adopt the contents and terms of conversation shortly after the event. The two detectives said they went back around an hour later by which time the accused had been placed on a truck to be transported to a remand centre. The officers also said that Detective Faber may have sought to get Mr Hawkins to adopt the conversation when he visited him on 21 December 2021 (Event 8). 4. It may be that Detective Faber intended to put the conversation to the accused at some point in that interview. The Prosecutor relied on the contents of paragraph [139] of the Mr Faber's statement (set out at [49] above): "Well that brings me to the real reason I'm here today. You indicated to the boys in Canberra when you were arrested that you might want to speak to us again. So I'm here to …" 1. It is unclear whether this was an introduction to attempt to have the accused adopt the things recorded in the Investigators Note or that it was leading to an invitation for Mr Hawkins to become a prosecution witness in the case against Mr Garland and Mr Campbell. 2. If Mr Faber intended to invite the accused to adopt the conversation, he made no attempt to do so at the outset. Rather, he played several items of CCTV footage and asked the accused to comment on them. In doing so, he obtained some significant admissions which are not the subject of objection. For example, the accused agreed the CCTV footage depicted him getting into the car with Mr Garland outside the house at Heddon Greta, and that the car followed Mr Campbell out of the premises. 3. It is also a fact that the Faber interview was conducted some three weeks after the impugned conversation in the cells on 30 November 2021. I do not accept that this constituted a timely attempt to have the accused adopt the earlier conversation. 4. For those reasons I am not satisfied there is a reasonable excuse for the failure to record the conversations and I make the following ruling on the evidence: * The evidence in Event 7 is not admissible. Final observations and rulings 1. Before restating the rulings I have made, I should address a couple of the forceful and persuasive arguments made by the Prosecutor. I have taken those arguments into account but, for the most part, they have not carried the day. 2. First, as Senior Counsel submitted, the accused is making selective objections to the evidence. For example, it would be open to the accused to object to the Faber interview which contains a mixture of incriminating and exculpatory statements. There can be no legitimate criticism of Mr Bickford for taking this approach and, no doubt, there is a sound forensic reason for him to take it. The fault lies not with defence counsel but with those who failed to comply with the provision in s 281 and, in the case of the ERISP, for undermining the accused expressed wish to exercise his right to silence after receiving legal advice. 3. Secondly, Senior Counsel raised concerns as to the approach that Mr Bickford will take in addressing the jury and conducting the case: "CROWN PROSECUTOR: … I'm not saying at all that the failure to record or 281 doesn't have work to do or there's not some problematic aspects of what happened. Clearly there are, but it's not a tool to create some unrealistic picture, of you can get to the point where what's Mr Bickford going to say about it, what's he going to say about if all this went out, the whole part he's wanting to take out, what, there's no opportunity to speak to police when he's first arrested? The fact that he's offered an interview, it becomes problematic or unrealistic to deal with it to rely on this here and to have a blank in the middle So – and there's a danger that what's – things can be put in a misleading way to rely on that conversation as to when it's said." [80] 1. The answer to this lies in the ethical standards attaching to counsel for both sides. If Mr Bickford were to make a misleading submission to the jury or to cross-examine in a misleading way, he would be committing a serious breach of those ethical standards. I would expect that the Prosecutor would raise the matter (which happened at one stage during the addresses in Mr Garland's trial) and that counsel would withdraw any misleading impression. 2. A particular aspect of this complaint concerns Mr Hawkins saying that he was engaged (by Mr Campbell) to deliver "a kilo of bling" (which is part of the evidence that will be excluded by these rulings). [81] I do not know whether that is to form any part of the defence case and how the evidence would be placed before the jury if it is. But again, the way the case will be conducted will require — on both sides — strict adherence to ethical standards and the traditions of the Bar. 3. Another aspect of the complaint is that the Prosecutor's ethical obligation includes placing material before the jury that may assist the defence case and that the rulings sought (and now, for the most part, made) will place a disjointed and fragmented account before the jury. The requirements for a prosecutor to act fairly and impartially was emphasised recently in the judgment of Wilson J in R v Fleming (Costs) [2023] NSWSC 1258 at [78]. 4. The Court expects counsel on both sides to maintain the highest ethical standards and to co-operate with each other to ensure the admissible evidence is placed before the jury in a comprehensible and coherent fashion. The jury should not be misled, and the prosecution is entitled to (and will have) a fair trial, but nor should the accused be required to answer a case consisting of evidence which is inadmissible and obtained improperly or in breach of a statutory provision. The fact is that where admissions are not recorded properly and there is no reasonable excuse, the content of those admissions is "not admissible over objection". [82] 5. The rulings I make are these: 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. ********** Endnotes 1. R v Hawkins; R v Garland [2023] NSWSC 1201. 2. Exs VD-A, VD-B, VD 1-4. 3. MFIs 4 and 5. 4. VD-A pp 104, 126-127; VD-B p 283. 5. Ex VD-A pp 127. 6. Ex VD-B p 309. 7. VD-A pp 105, 127-128; VD-B p 283. 8. VD-A pp 105, 128; VD-B pp 283-284. 9. VD-A pp 105, 128; VD-B p 284. 10. VD-A pp 105-106, 128-129; VD-B p 284. 11. VD-A pp 106, 129; VD-B p 284. 12. VD-A pp 106-107, 129; VD-B pp 284-285. 13. VD-A pp 107, 130; VD-B p 285. 14. VD-B p 281. 15. VD-A pp 107, 130; VD-B p 285. 16. VD-A p 107. 17. Ex VD-2. 18. Tcpt, 7 November 2023, p 21. 19. Tcpt, 4 October 2023, pp 80-82 (Mr King's evidence); Tcpt, 7 November 2023, p 21 (Senior Counsel's reference to that evidence). 20. Ex VD-A pp 107, 130, 146 21. Ibid pp 146-147. 22. As recorded. It seems more likely the "mmm" was the answer uttered by the accused. 23. VD-A p 148. 24. Ibid p 148-149. 25. VD-A p 149. 26. VD-A p 151. 27. Ibid pp 107, 130. 28. VD-A p 108, 132; VD-B p 286. 29. VD-A pp 108-109, 132-133; VD-B pp 286-287. 30. VD-A pp 109, 133; VD-B p 287. 31. VD-A pp 109-110, 133-135; VD-B pp 287-288. 32. VD-A pp 110, 135; VD-B p 288. 33. Ex VD-A p 111; VD-B p 288. 34. Ex VD-B pp 288-289. 35. VD-A pp 203-204. 36. Ibid pp 204-205. 37. Ibid p 206. 38. Ibid. 39. Ibid. 40. Ibid pp 206-207. 41. Ibid p 207. 42. Ibid. 43. Tcpt, 4 October 2023, pp 42-44. 44. Ibid pp 44-46. 45. Ibid pp 45-47. 46. Ibid pp 47-48. 47. Ibid pp 45-47. 48. Ibid pp 49-51. 49. Ibid pp 52-53. 50. Ibid p 53. 51. Ibid p 54. 52. Ibid pp 55-57, 59. 53. Ibid pp 58-59. 54. Ibid p 59. 55. Ibid p 59-60. 56. Ibid p 62. 57. Ibid p 65. 58. Ibid pp 66-67. 59. Ibid pp 67-68. 60. Ibid pp 69-70. 61. Ibid pp 70-72. 62. Ibid pp 72-73. 63. Ibid pp 74-75. 64. Ibid pp 75-76. 65. Ibid pp 76-77. 66. Ibid p 77. 67. Ibid pp 77-78. 68. Ibid pp 80-82. 69. Ibid pp 83-84. 70. Ibid pp 84-85. 71. Ibid p 85. 72. Ibid p 86. 73. Ibid pp 86-87. 74. Ibid pp 88-90. 75. See, for example, Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 at [38]-[41]. 76. Crimes Act 1900 (NSW), s 424A (Repealed); Criminal Procedure Act 1986 (NSW), s 108 (Repealed). 77. Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), Div 3 reg 28. 78. This is the language of the statute; it is not intended to have any pejorative flavour. 79. Tcpt, 4 October 2023, pp 47, 71. 80. Tcpt, 7 November 2023, pp 15-16. 81. Tcpt, 7 November 2023, p 14. 82. R v Reid [1999] NSWCCA 258 at [5]. Amendments 18 December 2023 - Grammar amendment 20 December 2023 - Grammar amendment 22 December 2023 - Grammar amendment 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: 22 December 2023