Supreme Court New South Wales Medium Neutral Citation: R v Hawkins (No 3) [2023] NSWSC 1408 Hearing dates: 17 November 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Common Law Before: Hamill J Decision: The application to discharge the jury is refused. Catchwords: CRIMINAL LAW – application to discharge the jury – non-responsive answer by witness – no fault of the prosecutor – no malicious intent by seemingly frightened witness – witness life partner of the accused who did not take an objection under s 18 – reference to a "sawn-off shotgun" – where murder under investigation committed with a shotgun – incident referred to evidence not relevant and related to an incident in 2017 – murder alleged committed in 2021 – prejudice and fair trial – whether "mishap" able to be cured by direction – circumstances of occurrence – where judge's intervention to stop the witness may have highlighted the problem – consideration of authorities – relevant considerations Legislation Cited: Evidence Act 1995 (NSW), s 18 Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 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 Publication restriction: The names of the witness and co-accused have been redacted to comply with non-publication orders made on 10 October 2023 and 15 November 2023. Judgment 1. Last Thursday, in the course of the re-examination of Jessica Burton, the Prosecutor showed the witness two statements she made to police on 30 December 2021 and 12 January 2022. She then gave the following evidence: [1] "CROWN PROSECUTOR Q. Do you see that statement? Can you identify that document in front of you as a statement made by you on 12 January 2022? A. Yes. Q. Does that also start with the words: 'This statement, made by me, accurately sets out the evidence that I would be prepared if necessary to give in Court as a witness. This statement is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.' A. It begins with that. Yes. Q. Did you read that statement before you signed it? A. Yes. Q. You signed it on each page; is that right? A. I'm pretty sure I have. Q. If you want to look through it and satisfy yourself of that. A. Yep. Q. Did you, in that statement, and just have a look at it if you need to take some time, but did you explain or clarify a number of things that you'd referred to or addressed in your first statement in that second statement? A. There's – I can see on number 8 it says, 'In relation to paragraph 10, the firearm I describe in that paragraph was a single barrel sawn-off shotgun'. HIS HONOUR: I might just invite you just to address the prosecutor's question, which at this stage is really just to have a look through it. WITNESS: Okay. HIS HONOUR: You can take as long as you like, and just either accept or deny that one of the things you do is to clarify things you'd said in your earlier statement. WITNESS: Yes, I accept that. Sorry. HIS HONOUR: That's okay." (Emphasis added.) 1. The transcript does not disclose that my direction to Ms Burton commencing with "I might …" stopped the witness from saying anything further and that I interrupted and, to some degree, spoke over the witness. [2] I was not aware, at that time, of the contents of the remaining part of the paragraph from which she appeared to be reading. As will be seen, it is fortunate that Ms Burton did not continue reading. 2. Even so, the italicised part of the exchange set out at [1] is evidence that is clearly problematic and potentially prejudicial to Mr Hawkins. Unsurprisingly, it prompted an application by Mr Bickford for a discharge of the jury. Sensibly, counsel did not make the application immediately but raised the matter once the jury left the court room. This showed good judgment as it did not draw attention to the evidence. Furthermore, Mr Bickford sought to see what was recorded in the transcript although, as it turned out, his instructing solicitor had an accurate note of what was said. [3] 3. The application was made on Friday, and I refused the application for a discharge of the jury. To minimise disruption to the jury, I indicated I would provide my reasons today (Monday 20 November 2023). 4. There was no intention on the part of the Prosecutor to lead that passage from the statement. The answer was not responsive to the question he asked. 5. Nor was there any malicious intent on the part of the witness. My impression was that, by that stage of her evidence, she was frightened and traumatised. She is the de facto partner of the accused and had earlier declined to take an objection under s 18 of the Evidence Act 1995 (NSW). [4] My strong impression was that she was doing her best to answer the questions of both counsel honestly and accurately. I believe she was frightened and was looking through the statement trying to understand what she had done wrong and what the Prosecutor wanted her to say. Again, in saying this, I mean no criticism of either the witness or Senior Counsel. While some of the authorities indicate that the deliberateness of the conduct giving rise to an application for a discharge of the jury is a relevant consideration, the matter is of little moment in this instance. For reasons that are nobody's fault, irrelevant and prejudicial evidence was uttered before the jury. 6. I have considered the contents of the two statements to which the evidence related. Paragraph [8] of her statement dated 12 January 2022 said: "In relation to paragraph 10, the firearm I describe in that paragraph was a single barrel sawn-off shotgun that was stored in the garage. Jason had that for a few years. He had it just to run around to intimate people with. I only saw it once or twice. He was showing one of his mates one day and I saw it. He would just act stupid with it sometimes and threaten to go and get that 'thing' and kill himself. After the police seized it, he tried to be really good after that time and I didn't see any firearm in the house after that time." [5] (Emphasis added.) 1. The italicised portion mirrors the evidence Ms Burton gave by way of reading that part of her statement. 2. Paragraph [10] of her statement dated 30 December 2021 was in the following terms: "Jason over the years has been involved in offences with firearms one in particular was when 5/5 Lush Place was searched under a warrant by the police, and they found a firearm. This was a major reason why the children were taken from us, this was in 2017." [6] 1. I considered those paragraphs because I was interested in whether anything could be said to the jury that was not misleading and could reduce the potential for prejudice. For example, if Ms Burton was referring to the gun of which a photograph will be in evidence, the jury could be told that the reference to the "sawn-off" related quite clearly to a different firearm or was a mistake in her statement. Similarly, if the gun she mentioned belonged to somebody else, the jury could be told that the gun to which she referred to was not one possessed or owned by Mr Hawkins and had nothing to do with him. However, in light of what is contained in the statements, such directions would be misleading. I assume the gun was seized by police in 2017. 2. The prejudice that may arise was identified by counsel, and included that the jury, or one of its members, may reason that the gun referred to had something to do with the shooting of Mrs Klimovitch. That is not the prosecution case and is contrary to the statement made by Ms Burton. The jury could be directed to that effect but that would highlight, or bring to the fore, the second possible prejudice which is that the jury may use the inadmissible and irrelevant evidence to support a form of tendency or bad character reasoning. In other words, the jury (or an individual member of the jury) may reason that the evidence shows the accused to be a person of bad character or a person with a tendency to own and use dangerous weapons, in particular a shotgun or shotguns. It may be known to one or more members of the jury that shortened firearms are notoriously used by criminals and not generally possessed by people for innocent purposes. 3. Counsel emphasised that the non-responsive answer related to a shotgun and the murder was committed with a shotgun. In other words, the inadmissible evidence related to the subject matter of the charge faced by Mr Hawkins: compare Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248 ("Ilievski & Nolan"). 4. While the prosecution case is that the weapon used in the killing was not a shortened or "sawn-off" shotgun, I understand from counsel's submissions that the expert ballistics evidence in the prosecution brief cannot rule out the possibility that the shotgun used to kill Mrs Klimovitch (which was not recovered) was shortened. The prosecution will submit that the closed-circuit television footage ("CCTV") captured at 8.06pm on 9 June 2021 depicts the shooter carrying an item which it says is a firearm but is not a shortened or sawn-off one: Ex 8 (MFI 6) compilation 4 (files 28-30). The next file in the CCTV compilation (file 31) is recorded at 8.07pm and the sound of the gun shot can be heard. 5. Mr Bickford also made the point, which I accept, that while my intervention was well intentioned, it may have drawn attention to the evidence because it came from the trial Judge. This is so, notwithstanding that the jury was directed immediately before the first witness was called that any questions asked by me in the course of the trial had no special significance. [7] This was not a question calculated to clarify an aspect of the evidence; it was an intervention to cut off Ms Burton's non-responsive answer. 6. These possible forms of prejudice must be considered in the light of other evidence in the case relating to Mr Hawkins, including his interest in guns and his relationship with Mr Campbell (who is said, by both parties, to have organised the shooting). For example: * The jury already have evidence from Ms Burton that the accused and Mr Campbell shared an interest in, or spoke about, guns and other weapons. She said, "… they both liked knives and things like that and talking about their antics, I suppose". [8] Later she gave evidence: [9] "Q. Did you also hear them speak about guns from time to time? A. Yes. All kinds of weapons." * Ms Burton also gave evidence that one of the tasks Mr Hawkins undertook for Mr Campbell involved debt collection or, as she put it, to "help get some debts cleared up" and "helping getting debts cleared up". [10] * Ms Burton described the relationship between the two men as "a business relationship with drugs". [11] 1. That kind of evidence was admitted (in some instances over objection, in others not) to establish the relationship between the two men and to explain (or place in a sensible and true context) the prosecution case that Mr Campbell sought the assistance of Mr Hawkins to commit the murder. It has a potential, which I assessed as relatively small, of misuse or creating prejudice. The jury will be directed (and by the time of publishing these reasons has been directed) as to the limited use to which this evidence can be put. [12] 2. Ms Burton also gave evidence of seeing a photograph of a shotgun on Mr Hawkins' Google timeline: [13] "Q. Is there anything else you recall seeing either on your phone or on his phone around the time of the trip to Newcastle? A. Can you be more specific? Q. Did you ever look at the photographs on his phone at any stage around that time? A. I looked through his phone several times. Q. In relation to -- A. Or his Google timeline, anyway. Q. But what about the photographs on his phone? Did you look at those at all? A. I would have, yeah. Leading up around that time. Yeah. Q. Was there something that you saw in his photographs on his phone that you told the police about in relation to this matter? A. The police asked me about firearms and I said I had seen a photo of a firearm in Jason's phone. Q. The firearm you saw on Jason's phone, can you describe what that looked like? The photograph of it looked like? A. It looked like a shotgun that hadn't been shortened. Like, a long shotgun. Q. A long shotgun. Do you recall anything about the colour of it? A. It was brown. It was a nice – it was – it looked like a nice gun. It was ornate. Well looked after. Q. When you looked at the photograph of the gun, in addition to those things you noticed, did you notice anything about its location within the photograph? A. It was in my bathroom. Q. How is it that you could tell it was in your bathroom? A. I recognised my tiles and the bathroom. Q. Did you say, when you saw that photograph, did you say anything to Jason Hawkins about it? A. Yeah, I gave him a hard time about it. Q. When you say you gave him a hard time about it that was something you were not happy with. Is that the case? A. Yes. Q. Did he say anything to you in relation to the gun, where it was, or anything like that? A. That I had nothing to worry about; that he wouldn't put me in a position that it would cause any trouble. Q. Did you ever see that gun, physically, other than in a photograph? A. No. Q. Not while you were at your house in Canberra, is that the case? A. No. Q. And not at any other time? A. No. Q. Just going back to in relation to when it was that you saw that photograph of the gun and had that conversation with Jason Hawkins, when was that timing wise? Do you recall? A. Some months - some months before. I can't be sure but it was some months before all of this happened. Q. And in terms of when you went to Newcastle with him are you able to say in relation to that trip when it was that you saw the gun in relation to that period of time? A. Sorry, can you say that again? Q. Yes. In relation to the trip to Newcastle that you took with him? A. Yeah. Q. Are you able to describe the point in time at which you saw that photograph in relation to the trip to Newcastle? A. Months before." 1. It is anticipated there will be further evidence, from a witness called [redacted], [14] that he saw Mr Hawkins (or a person the prosecution contends was Mr Hawkins) showing a group of people a shotgun at the Argenton premises a few days before the shooting. Based on the evidence in his co-accused's trial, this evidence has some significant problems. [Redacted] received a sentencing discount for his offer to give this evidence, no other witness said to be present (including Ms Burton) supports that this incident occurred and other evidence suggests that Mr Hawkins had not arrived at Argenton at the time [redacted] claimed he was showing off the weapon. 2. The parties took me to three helpful authorities: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 ("Miller") and Ilievski & Nolan. Some of "principles relating to the discharge of the jury" were summarised in Miller at [126], omitting (4)-(6) which relate to appellate review of such decisions: "The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v The Queen (2011) 265 FLR 276 at [265]ff per Hall J. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v The Queen (1996) 186 CLR 427; 88 A Crim R 232 and Maric v The Queen (1978) 52 ALJR 631: (1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440. (2) In deciding an application to discharge the jury, key considerations include: (a) the fairness of the trial: Crofts at 440; (b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to 'have been left vividly etched on the mind of the jury': Crofts at 441; (c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; 241; (d) the stage at which the mishap occurs: Crofts at 440; 241; Maric at 635; (e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635; (f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; 241; Maric at 635. (3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635." 1. I refer also to the helpful judgment of Dhanji J (Lonergan J agreeing and Beech-Jones CJ at CL (as his Honour then was) dissenting) in Ilievski & Nolan, especially his Honour's careful survey of the authorities at [71]-[89] and review of the factual circumstances of that case and the directions given to the jury at [90]-[107]. 2. I concluded that the jury ought not to be discharged essentially for the following reasons: 1. While the evidence had some potential to cause prejudice, it is unlikely to be "vividly etched on the mind of the jury". I reached that conclusion despite my acceptance of Mr Bickford's submission that my intervention may have called attention to the evidence. 2. It was not a serious occurrence considering its brevity, timing and the other evidence concerning the relationship between the accused and Mr Campbell. Again, in coming to that conclusion, I have considered the significance of the fact that the non-responsive answer related to a shotgun (albeit a sawn-off shotgun) in a case where the murder was committed with a shotgun. The discharge application fell to be determined by reference to its own facts and circumstances. While I have found reference to Ilievski & Nolan extremely helpful, the case is readily distinguishable from the factual circumstances here. In that case, the accused were charged with a bank robbery and a witness gave non-responsive evidence that the police told her the accused "was known to have robbed a bank before". There were further incidents that impacted on the fairness of the trial. There was a second "utterance" by the same witness that "Bosty was some bank robber" and evidence that one of the accused was "known to the police". Dhanji J noted that the nature of the crime was such that "it was the work of criminals that had engaged in such activity before." That feature of the case meant the impugned evidence was of particular significance. 3. While the "mishap" occurred on the fourth day of a three to four week trial and it is likely the trial could re-commence on Monday 20 November 2023, that consideration cuts both ways. The incident will be something of a distant memory to the jury by the time it comes to consider its verdict. 4. Directions that the answer was non-responsive, involved an incident of no relevance to the case, has been ruled inadmissible and that the jury should disregard what Ms Burton said (if they heard it and remembered it), are capable of curing the potential prejudice. After making the decision not to discharge the jury, I directed the jury as follows: [15] "HIS HONOUR: Thank you, members of the jury. I will just offer my apologies again for the delay this morning, but we had to deal with something in your absence. It's now been dealt with, and it leads me to give you this direction of law, which you must comply with. Yesterday when the prosecutor was re-examining the witness Ms Burton, who is the partner of Mr Hawkins, she was being asked some questions about two statements she'd made to the police, one in December 2021 and one in January 2022. At one stage, without being asked to, she started reading from her statement, and I, you might remember, cut her off, and I said just consider the question she'd been asked, which was to confirm that the second statement clarified some things in the first. I don't know if you heard what she said, or whether you can remember what she said, but what she said at that point had absolutely nothing to do with the case and the issues that you are going to be trying. What she said was really concerning her relationship with Mr Hawkins, which I think she described at one stage as 'fractious'. That part of her evidence has been now identified by the parties, and I have ruled that it is not, was not, never will be admissible in the trial. If you ask for a transcript at any stage and we decide to provide it to you, that part of her evidence will not be included in the transcript. It will be on the official transcript because it's part of the record, but if you did hear what she said, or if you remember what she said at that stage, you must ignore it. It must play no part in your deliberations whatsoever. It had nothing to do with this case. While I'm giving you directions about parts of her evidence, I'll just say one more thing, which I'll expand on when I come to sum up. Ms Burton was also asked to give some evidence about her knowledge of, observations of the relationship between the man Campbell and Mr Hawkins. She referred, for example, to a joint or mutual interest or conversations between those two men about various weapons, and she told you about certain work that Mr Hawkins did for Mr Campbell, including something about unpaid debts. That evidence is admitted before you for a very, very limited purpose, and it can only be used for that purpose. That purpose is to explain the nature of the relationship between the two men to place in context the allegations that the prosecution now makes and to put the events, if you like, of June 2021 into a proper context. Again, the evidence must not be used in any way. This isn't a court of morality, it's a court of law. We don't judge people by some subjective view that they're a bad egg or something like that, or that they associated with someone who's a bad egg. You have heard and will hear evidence about Mr Campbell. It seems to be common ground, although we'll see, that he was ultimately the one that had the beef with Mrs Klimovitch; but the fact that Mr Hawkins was associated with him or friendly with him is not to be used by way of some sort of guilt by association. So the evidence you've heard about their friendship or relationship can only be used to place the prosecution's allegations in a proper context; and those allegations of course, as you've heard, have to be established beyond a reasonable doubt, including the starting point, which is what the prosecution says was Mr Campbell's, if you like, planning this assassination." 1. In my assessment, this direction will greatly diminish any risk of the jury using this evidence in any way. There may be other options to minimise the risk of prejudice. For example, the parties could agree to an agreed fact, or tightly controlled cross-examination of one of the detectives instructed to confine their answers to "yes" and "no", which could establish (without reference to the evidence of a sawn-off shotgun) that the evidence in paragraph [8] of Ms Burton's second stated related to matters many years ago (or "in 2017") which have nothing at all to do with the present case. 2. It should be noted that if the accused adopted an approach similar to any of those canvassed in the previous paragraph or otherwise confronted the problem head on, it should not prejudice the accused in any way in the context of a potential appeal. If such an option were taken by counsel for the accused, he would have been forced to that election by the decision I made in circumstances where he submitted firmly that there was no direction capable of curing the potential prejudice: cf Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 at [48]. 3. Another matter that the parties agreed was relevant to the decision was the fact that witnesses may have to give evidence on multiple occasions. In particular, Alexandra Klimovitch, the daughter of the deceased who witnessed the murder. She has already given evidence twice (once in the co-accused's trial and once in Mr Hawkins' trial). The same applies to Ms Burton. Both of those witnesses are obviously deeply affected by the events and having to give evidence in court. However, if I formed the view that the potential prejudice could not be cured, the fact that the witnesses would have to give evidence for a third time is not a matter that would justify continuing with an unfair trial. 4. Those are the reasons I refused the application to discharge the jury made on Friday. ********** Endnotes 1. Tcpt, 16 November 2023, pp 273-274. 2. An electronic disc containing the extract in question was marked Ex VD-H4. 3. Tcpt, 16 November 2023, pp 285-287. 4. Tcpt, 15 November 2023, pp 181-182. 5. Ex VD-H5. 6. Ex VD H3. 7. Tcpt, 14 November 2023, p 68. 8. Tcpt, 16 November 2023, p 213. 9. Ibid p 251. 10. Ibid pp 214, 241. 11. Ibid p 213. 12. Tcpt, 17 November 2023, p 318. There will also be further directions in the summing up. 13. Tcpt, 15 November 2023, pp 210-211. 14. There is a non-publication order over the name of this witness. 15. Tcpt, 18 November 2023, p 318. 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: 20 December 2023