R v Hawkins (No 2) [2023] NSWSC 1407

Supreme Court New South Wales

Medium Neutral Citation: R v Hawkins (No 2) [2023] NSWSC 1407 Hearing dates: 16 November 2023 Date of orders: 16 November 2023 Decision date: 16 November 2023 Jurisdiction: Common Law Before: Hamill J Decision: The evidence of the text message saying "Sicaro Soldaro" (Hitman Soldier) is not admissible. Catchwords: CRIMINAL LAW – evidence – text message sent between organiser of murder and alleged shooter – "Sicario Soldado" – Hitman Soldier – IMDb – temporal proximity to killing provides evidence with some probative value – context of other message sent a few moments earlier - No Country for Old Men – potential for unfair prejudice – evidence excluded Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Procedural rulings Parties: Rex Jason Paul Hawkins Representation: Counsel: B Hatfield (Rex) B Bickford (Hawkins)

Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Hugo Law Group (Hawkins) File Number(s): 2021/00336983

EX-TEMPORE Judgment (REVISED) 1. Objection is taken to a piece of evidence that is contained in a text message or SMS from a 'phone number associated with Stuart Campbell ending in #326 to a 'phone number associated with Mr Hawkins, the accused, ending in #524. 2. The message was sent, according to the evidence in Ex VD-H1 on 3 June 2021 at 11.53pm and says, "Sicaro Soldaro." The parties seem to be in agreement that the message has some misspellings and ought to have read "Sicario Soldado". There is also agreement that the message is based on a movie title, as evidenced in Ex VD-H2, Sicario: Day of the Soldado. [This exhibit was a screen grab of a page from the well-known internet site or app called IMDb which reviews and provides synopses etc of movies and television shows]. 3. There seems to be general agreement that the translation of the movie title from Spanish to English is to the effect of "Hitman: Day of the Soldier". 4. The timing of the message is important in an assessment of the probative value of the evidence. The message was sent, as I said, on 3 June 2021. Mrs Klimovitch was killed outside her home six days later on 9 June 2021. Accordingly, the prosecution submits the context of the message from Mr Campbell to Mr Hawkins saying, via the translation, "hitman", has probative value because that is precisely what the prosecution case asserts, that is, Mr Hawkins was a "hitman" hired by Mr Campbell to undertake the execution style killing of Mrs Klimovitch. 5. The objection is taken pursuant to s 137 of the Evidence Act 1995 (NSW). In addition to the two documents to which I have already referred, there is also the statement of Ms Burton, who is the current witness, which she gave to police on 30 December 2021. [1] During the taking of her statement, she was obviously shown the text message or asked about it by police, because at paragraph [82] of her statement she said: "Jason [that is the accused who is her partner] has never ever been referred to as any name other than Jase, Jason, Hawkie, or Hawko. The whole Sicario business that is published in the media, I have never known to be the case. That is a video that Stuart had lent us during the weeks leading up to going to Newcastle. That is the only connection I know to that name." 1. That lends some weight to the parties' joint position (as I follow it) that the reference, albeit misspelt as "Sicaro Soldaro", is a reference to the movie. Lending further weight to that suggestion is a message sent about six minutes earlier (at 11.47pm), from what appears to be Mr Campbell's 'phone to what appears to be Mr Hawkins' phone, which simply makes reference to No Country for Old Men, which is unquestionably a movie title, and, as Senior Counsel pointed out, a pretty good novel as well. 2. The argument on behalf of the accused is that the evidence should be excluded under s 137 because "its probative value is outweighed by the danger of unfair prejudice to the defendant". 3. One of the arguments is that because Mr Campbell is dead – and that is part of the agreed facts in Ex 1 – there is no opportunity to cross examine him. I do not find very much force in that argument. The reality is that if the two men were on trial together, as indeed they were originally meant to be before Mr Campbell took his own life, there would not necessarily have been any opportunity for the accused in this trial to cross-examine him and get to the bottom of what he meant by sending this message late on 3 June 2021. 4. As I said earlier, the temporal proximity to the killing and the use of that language certainly does have potential for the jury to use it as part of the prosecution circumstantial case and it does, therefore, have some probative value. 5. On the other hand, it is very emotive and there are other explanations for the message being sent. Leaving it in the jury's hands simply to choose one explanation, I think, does create a danger of unfair prejudice. 6. The question is how one weighs those two things against each other. My assessment is that the danger of misuse by the jury, of it simply latching onto the fact that a message was sent to the accused, who is said to be a hitman, saying or calling him "hitman" in the days before the killing, may have too much of an emotive and inflammatory appeal to it. 7. [An issue that was not canvassed explicitly in argument, or referred to in the ex-tempore judgment, was the possible misuse of the evidence as part of a kind of tendency (or bad character) reasoning process. This may have been implicit in the submissions seeking exclusion of the evidence and my instinctive assessment is that the evidence was unfairly prejudicial]. [2] 8. I am satisfied that the danger of unfair prejudice outweighs its probative value and I propose to exclude that evidence.