R v Hawkins [2023] NSWSC 1370

R v Hawkins [2023] NSWSC 1370

The Court held that only those statements for which a 'reasonable excuse' for not recording was established, or which were properly adopted on tape, were admissible. Police failures to record interviews (Event 5 and Event 7) without reasonable excuse, and persistent questioning after assertion of the right to silence (except as required to properly adopt previous statements), rendered that evidence inadmissible by operation of s 281 and s 138. Only brief specific portions of the electronically recorded interview (questions 21-28 and 47-52) seeking to have the accused adopt earlier admissible admissions were allowed. The remainder was excluded due to grave impropriety and breach of the...

Parties
Prosecution: Rex; Accused: Jason Paul Hawkins
Jurisdiction
Australia
Judgment Date
13 November 2023
Procedural Posture
Criminal / Pre Trial Ruling on Admissibility of Evidence (voir Dire)
Outcome
Objections to evidence were mostly upheld; only selected parts of evidence ruled admissible.
Legal Topics
Admissibility of Admissions, Right to Silence, Police Interviews, Exclusion of Evidence, Pre Trial Procedure
Criminal Law Evidence Admissibility of Admissions Right to Silence Police Interviews Exclusion of Evidence Pre Trial Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Rex

Prosecution

Jason Paul Hawkins

Accused

Procedural Posture

Criminal / Pre Trial Ruling on Admissibility of Evidence (voir Dire)

Legal Issues

  1. 1 Whether police failures to electronically record admissions under s 281 of the Criminal Procedure Act 1986 (NSW) are excused so as to permit admissibility of those admissions
  2. 2 Whether police questioning of the accused after asserting the right to silence constituted improper conduct under s 138 of the Evidence Act 1995 (NSW) and whether evidence should be excluded
  3. 3 Application of 'reasonable excuse' under s 281 for failing to record admissions

Ratio Decidendi

The Court held that only those statements for which a 'reasonable excuse' for not recording was established, or which were properly adopted on tape, were admissible. Police failures to record interviews (Event 5 and Event 7) without reasonable excuse, and persistent questioning after assertion of the right to silence (except as required to properly adopt previous statements), rendered that evidence inadmissible by operation of s 281 and s 138. Only brief specific portions of the electronically recorded interview (questions 21-28 and 47-52) seeking to have the accused adopt earlier admissible admissions were allowed. The remainder was excluded due to grave impropriety and breach of the...

Court Disposition

Objections to evidence were mostly upheld; only selected parts of evidence ruled admissible.

Orders

  • The evidence of the conversation identified as Event 4 is admissible.
  • The evidence of Event 5 is not admissible.