R v Hawkins

Rules and principles relevant to subpoenas in Criminal Proceedings

1. Rule 75 of the Supreme Court Rules makes provision for criminal proceedings assigned to the Common Law Division. Rule 75.3(1)(g) provides that the UCPR regarding subpoenas, (r 33), subject to some specific exceptions, applies to Third Schedule Criminal Proceedings. This proceeding is included in the Third Schedule as "(a1) proceedings… for the prosecution of an offender on an indictment in the Court…".
2. Rule 33.4(I) of the UCPR provides for the setting aside of a subpoena in whole or in part. This is the appropriate basis upon which to approach the defence complaint about the offending part of paragraph 4 of the subpoena. To the extent required, I grant the defence leave to amend the notice of motion to reflect that approach.
3. The issue relevant to both the question of setting aside the offending part of the subpoena and whether access should be permitted, is whether there is a legitimate forensic purpose for which the documents are sought; in short, is it "on the cards" that there will be material produced relevant to the Crown case.

The relevance of Scott Woodward, Sarah Hardes and Nakita Martyn to the Crown case

1. Scott Woodward is Mr Denniss' stepbrother. The accused met Mr Denniss through Scott Woodward.
2. Mr Denniss' partner, Taylah Lethbridge, was also friends with Scott Woodward.
3. In the weeks leading up to 8 December 2018, Mr Denniss attended Scott Woodward's house at Wallsend almost daily.
4. Nakita Martyn was in a relationship with Scott Woodward and lived with him at Wallsend.
5. Sarah Hardes was, at the relevant time, the accused's girlfriend.
6. An issue was brewing about the ownership/possession of a motorbike which on 8 December 2018 was located at the home of Mr Denniss.
7. At about 2:30pm on 8 December 2018, the accused attended Scott Woodward's house and asked Nakita Martyn whether he could borrow her car. The accused did not tell Nakita Martyn where he was going.
8. Between 3:00pm and 3:30pm, the accused visited the home of Mr Denniss. There was an altercation between Mr Denniss and the accused about the motorbike. The accused was cut on his left arm. On the Crown case, Ms Lethbridge was present during this altercation.
9. The accused returned to Mr Woodward's house. There is some issue about what was said at Mr Woodward's house. Ms Martyn says that the accused told her, amongst other things, that Kenneth Denniss caused the cut on the accused's arm. Ms Martyn said that the accused was abusive about Mr Denniss, calling him a "piece of shit", a "weak cunt" and a "fucking dog", and that she observed the accused to be angry, hot, sweaty and agitated.
10. Ms Martyn and Ms Hardes attended to the accused's wound. According to Ms Martyn, after about 20 minutes, the accused left with Ms Hardes.
11. Ms Hardes' friend Lisa Chaffey gave the accused and Ms Hardes a lift in her car. She picked up the accused from Mr Woodward's house and drove him to Mr Denniss' house in Maryland.
12. The Crown case is that the accused said "Just wait here for a minute" and got out of the car. He went to the gate of Mr Denniss' house and, according to Ms Lethbridge, called out "Ken, come here for a minute". Mr Denniss was standing with Ms Lethbridge in the garage. Mr Denniss stepped out of the garage and was shot by the accused with what Ms Lethbridge believed was a sawn-off shotgun.
13. The weapon that fired the shot into Mr Denniss has not been found. A type of home-made mace was found on the ground in or near the garage, near the body of Mr Denniss.
14. It is the defence case that Mr Denniss had something in his hand when he came out of the garage and that the accused thought it was a gun and he shot Mr Denniss in self-defence. The accused says that there were serious threats made to him previously by Mr Denniss.
15. Ms Lethbridge denies that there was anything in Mr Denniss' hand at the time he was shot by the accused.
16. Ms Chaffey was waiting in the car with Ms Hardes. She heard gunshots and started screaming. Ms Hardes said "Go". The accused ran towards the car carrying a black backpack in front of him. Ms Chaffey picked him up and he said to her "I'm sorry, none of this will come back to you". Ms Chaffey does not recall any other conversation.
17. The accused was dropped back to Scott Woodward's house. Ms Martyn says that the accused "walked in with a dull look on his face", sat down, looked at Mr Woodward and said "I done it", to which Mr Woodward replied "Did you?" The accused nodded and said "Sorry". Mr Woodward stood up and said "Fuck". The accused then said again "Sorry".
18. The position of Ms Hardes was the subject of a public interest immunity ("PII") application heard and determined by Walton J in March 2020. Nothing about that was placed before me on this application and I have not seen any statement or account of the events of 8 December 2018 by Ms Hardes.
19. Nakita Martyn and Scott Woodward are to give evidence at the trial.
20. Whilst there was some initial uncertainty about this, a decision was communicated to the defence on or around 14 August 2020 that Ms Hardes is not to be called. I have been informed by both counsel that I will be requested at the trial to direct the jury that they should draw no inference from the fact that Ms Hardes has not been called.

Case management and the previous hearing date

1. The accused was arraigned before Fullerton J on 6 December 2019. The matter was fixed for trial to commence on 9 March 2020 with a three week estimate.
2. On 4 February 2020 Walton J conducted a readiness hearing in which the Crown confirmed that it was ready to commence on the listed hearing date.
3. On 4, 9, 10 and 11 March 2020, Walton J dealt with the pre-trial issues and the PII claim regarding Ms Hardes. The jury were empanelled on 11 March 2020 and the trial commenced that morning.
4. Evidence was taken over the following days. There were some developments in relation to uncertainties surrounding the COVID-19 pandemic. For reasons that I do not need to go into for the purposes of this judgment, the jury was discharged on 26 March 2020.
5. On 3 April 2020 Fullerton J fixed the matter for trial on 7 September 2020 with a four week estimate. The start date was later postponed by one week to provide for necessary jury accommodation given social distancing requirements relevant to COVID-19.
6. On 4 August 2020 the matter was listed for pre-trial directions before me. Nothing at all was raised in relation to any outstanding preparation issues. Nothing was said regarding gaol calls. Both the Crown Prosecutor and counsel for the accused confirmed that notice requirements had been met before the previous trial and that there was no need to revisit anything, and the trial was ready to proceed.

The evidence and submissions on the application

1. The Crown tendered an affidavit of Tahlia Kable, DPP solicitor, sworn 31 August 2020. A list of the dates of visits that Sarah Hardes and Nakita Martyn made to the accused in gaol was provided. There was also a list of the dates of phone calls that the accused made from gaol to Sarah Hardes, Nakita Martyn and Scott Woodward (Exhibit B).
2. The defence tendered two paragraphs from the statement of Ms Martyn dated 20 February 2020 in which she said: "[31] I learnt that Daniel was later arrested by police and charged with the murder of Kenny Dennis. After Daniel was charged, I visited him in gaol. I visited him about ten times. On some of these visits I was Daniel's ex-partner, Leanne McGovern and their two children. I only visited Daniel twice on my own and one of those times I didn't make it to the visit, as I got picked up by police. I have been charged with driving with drugs in my system and possessing restricted drugs. I haven't seen Daniel since this time. [32] When I did visit Daniel, I didn't ask him what had actually happened. He hasn't told me that he shot Kenny".

(i) Crown submissions

1. The Crown provided helpful written submissions dated 31 August 2020, asserting that the accused had phone contact from gaol with Ms Hardes, Ms Martyn and Mr Woodward, that this phone contact was "regular and prolonged", that it occurred before, during and after the last trial and that this contact had continued into August 2020.
2. The test for legitimate forensic purpose in criminal proceedings is whether, having regard to the Court's fundamental duty to ensure a fair trial, there is a reasonable possibility that the documents sought will materially assist the Crown's case.
3. Reliance was placed on the statement of Adamson J in Mann v The Commissioner of Police [2020] NSWSC 369 at [31] regarding the identification of legitimate forensic purpose as: "A matter which is peculiarly contextual thus it is not productive to seek to draw conclusions from the authorities beyond the statements of general principle expressed in cases such as Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536".
4. As Adamson J noted at [25]: "The general principles are not in issue. Once the ambit of a subpoena is put in issue, the issuing party is obliged to identify a legitimate forensic purpose for which the documents are sought. It is not sufficient that the documents falling within the ambit of the subpoena could, or might be, relevant, it must actually be 'on the cards'. Subpoenas are not to be used for the purposes of "fishing expeditions".
5. The interaction with Crown witnesses (and possible Crown witnesses) is a highly relevant matter. Communication by the accused has continued until very recently with Mr Woodward and Ms Hardes. They, and Ms Martyn, were all people interacting with the accused at the time of, or very close to the time of the murder. The accused is likely to give evidence given his defence and the nature and content of the contact between him and those three persons will be relevant to his account of the events, as well as relevant to his credibility generally.
6. Mr Woodward participated in an ERISP. The Crown asserts that what he said had occurred on the afternoon of 8 December 2018 conflicts in significant respects with Ms Martyn's account. Mr Woodward told police that the accused did not say who wounded him and that the accused said "It doesn't matter" when asked. Mr Woodward also denied seeing the accused later that day, and so did not tell police about the conversation Ms Martyn says occurred after the shooting where she, Mr Woodward and the accused were present.
7. The legitimate forensic purpose is said to be to examine the nature of the relationship between the accused and Mr Woodward, given that Mr Woodward has not been honest in his discussions with the police about the events of 8 December 2018. The Crown is entitled to assess the nature and content of the phone calls between them and whether the accused spoke to Mr Woodward about the events. This material is significant to the Crown's assessment of Mr Woodward's reliability and the Crown's obligation to call him. It may also identify issues relevant to any application the Crown ought to consider under s 38 of the Evidence Act 1995 (NSW).
8. In respect of Ms Martyn, the Crown says it should be permitted to access the recordings to see whether it was in fact Ms Martyn or Mr Woodward speaking on the phone subscribed to Ms Martyn and to explore the possibility that Ms Martyn discussed with the accused the events the subject of the trial.
9. Although the Crown currently does not propose to call Ms Hardes at the trial and the accused has not sought for her to be called, the Crown has an ongoing responsibility to determine whether to change that position. Conversations with her, particularly at a time proximate to the last trial and this trial may be relevant, and may indicate that she has relevant evidence to provide.
10. The Crown submitted that I could and should infer that calls around the time of the last trial and as this trial approaches demonstrate that it is "on the cards" that evidence will be discussed in those phone calls that the accused made to those persons.

(ii) Defence submissions

1. Mr Steel in succinct written and oral submissions argued that there is no legitimate forensic purpose demonstrated. The Crown is not proposing to call Ms Hardes. The approach of the Crown is a fishing expedition. There is no information suggesting that the Crown has a basis to suspect the contents of the conversations will touch on any of the matters raised. The pattern of telephone contact is similar throughout the whole period covered in the list. There is no reason to infer that the calls around the time of the last trial or now contain discussions of the evidence those persons would give.
2. Ms Martyn has been interviewed by police and confirmed in her statement in February 2020 that she did not discuss what had actually happened, which it was suggested I should interpret as evidence that she has not discussed her own evidence with the accused. This means that calls with Ms Martyn could not be said to be ones where it is on the cards that the accused discussed his evidence with her or that Ms Martyn discussed her evidence with the accused.
3. From a practical point of view the production is being sought so close to the trial that it places an unreasonable burden on the defence. There are more than 39 hours of phone calls entailed in the list of calls which will take significantly longer to listen to than 39 hours. The defence does not have Legal Aid approval to carry out that task. There may be a delay obtaining instructions from the accused about the contents of the calls, given the COVID-19 pandemic, the very limited access to phone conferences with him and the fact that no physical visits are allowed.
4. The Crown should have issued the subpoena prior to the last trial, or at least well in advance of this trial so that there was adequate time and opportunity for the defence to review the material. The material could then have been disclosed in the ordinary way as required under the Criminal Procedure Act.

Explanation for the late pursuit of this line of enquiry

1. Frankly, there is none.
2. The purported explanation provided, that on 25 August 2020 the solicitor with conduct of the matter was "provided with information by the OIC to the effect that the accused had been in contact by telephone" with these witnesses appears to me to be nothing short of a statement confirming lack of foresight and inadequate investigation.

Prejudice to Mr Hawkins

1. At this stage it is impossible to assess what is contained in the calls in issue. It may be that none of the material is sought to be tendered and none of it requires further consideration.
2. At the very least however, the late service of the subpoena and production of the material potentially requires the defence lawyers to review a large volume of calls, a task which I accept will take significantly longer then the estimated time the calls entail which is likely to be as stated, about 39 hours. This is at a time when the efforts of the defence team would be more appropriately deployed to trial preparation and liaising with their client about the Crown case as disclosed.
3. The calls cover a wide period of time, almost 18 months, and it is not appropriate to introduce further forensic lines of enquiry at this late stage.

Prejudice to the Crown if I set aside paragraph 4 of the subpoena or do not allow them access

1. This too is impossible to assess. It may be that there is absolutely nothing of relevance or significance in the material that has been produced. Alternatively, there may be significant and relevant material.
2. It was proposed that NSW Police could undertake listening to the 39 hours of calls and then limit the access for the Crown to only those calls that were deemed by the police to be relevant and unaffected by potential legal privilege issues.
3. There are a number of problems with that approach, not the least being that it would potentially interfere with any legal professional privilege claim if police listened to discussions in which the accused and/or the person he was speaking to, discussed legal advice he had received as it could be viewed as a waiver or loss of utility of any claim of privilege.
4. There is also the question of interpretation of what is or is not relevant. What is relevant and what is potentially subject to legal privilege are both matters about which reasonable minds may differ.
5. Mr Steel also submitted that the right of the defence to be able to listen for any exculpatory material should be upheld so that exculpatory material can be placed before the jury.

Consideration and orders

1. In the oral submissions made by the Crown, emphasis was placed on the fact that some of the accused's calls to Mr Woodward and Ms Hardes were around the time of the previous adjourned trial. It seems to me that unlike the "fishing" and somewhat speculative approach taken in respect of all of the other telephone calls, it is "on the cards" that in this period, directly proximate to the trial, matters pertaining to the evidence Mr Woodward or Ms Hardes may give at trial may well have been discussed with the accused.
2. This is particularly so given the significant and critical conflict between the evidence of Mr Woodward and that of Ms Martyn regarding events at Mr Woodward's house after the shooting.
3. It seems to me that there is a legitimate forensic purpose in respect of calls made by the accused to Mr Woodward in the period approaching and around the time of the aborted trial in March 2020.
4. As the date for the adjourned trial approaches, a similar legitimate forensic purpose applies.
5. This consideration does not apply to Ms Martyn whose calls from the accused ceased on 23 October 2019. I note that she told Police in her statement in February 2020 that she has not discussed the events with the accused during her visits with him, most of which it seems occurred when she attended with the accused's ex-partner and others. Nothing is said by her in relation to what was discussed in any phone calls from the accused.
6. It was submitted that the OIC has a suspicion that the phone number attributed to Ms Martyn was actually being used by Mr Woodward. There is no evidence before me that supports that assertion. There is no evidence that, for example, Ms Martyn denied receiving phone calls from the accused. I must therefore put that suspicion to one side.
7. When the proceedings were last before Walton J, it was not yet finally decided as to whether Ms Hardes would be giving evidence at the trial. The issue became live again when a second Crown Prosecutor came into the trial later in March 2020. This meant that there was still a reasonable possibility that Ms Hardes would be called and that there was discussion of her evidence with the accused in March around the time of the last trial.
8. There seems therefore to be a legitimate forensic purpose for requiring production of and access to calls made by the accused to Ms Hardes during the month of March 2020.
9. It was not until 14 August 2020 that a formal decision was communicated regarding whether Ms Hardes was to be required to give evidence at the upcoming trial. I consider that it was "on the cards" that there was discussion with the accused about Ms Hardes giving evidence in the calls made in early August 2020.
10. Of necessity, there is some arbitrariness associated with limiting the periods of the calls that must be produced to the month of March 2020 and the calls in August 2020 but a line needs to be drawn somewhere suitably proximate.
11. Should material be revealed that justifies a further or wider subpoena and/or access application, the parties can raise that with the Court.
12. I made the following orders on 1 September 2020: 1. Paragraph 4 of the subpoena directed to the Proper Officer - Legal, Department of Communities and Justice ("the Proper Officer") is set aside, except for the following, by reference to the list provided by the OIC and marked Exhibit B on this application: 1. Calls made by the accused to Sarah Hardes between 1 March 2020 and 31 March 2020 and between 1 August 2020 and 9 August 2020; 2. Calls made by the accused to Scott Woodward between 1 March 2020 and 27 March 2020 and between 7 August 2020 and 21 August 2020. 1. The hard drive produced to the Court on 31 August 2020 containing all of the calls set out in Exhibit B to the application is to be returned to the Proper Officer. 2. The Proper Officer must produce to the Court the audio recordings limited to those identified in order 1 above. 3. That material must be formally produced to the Court at 9:30am on Thursday 3 September 2020. 4. The matter is listed before Lonergan J for production of the material referred to in order 1 at 9:30am on Thursday 3 September 2020. 5. The Crown is to notify the Proper Officer of these orders immediately by email and telephone. 6. The defence may have first access to the material to be produced on Thursday 3 September 2020 with the Crown to have access as soon as practicable after that.
13. I should note that these orders were adjusted to allow more time for the necessary preparation of the more limited material to be produced in response to paragraph 4. These further orders were made on 4 September 2020: 1. Orders 2, 3 and 4 made on 1 September 2020 are varied to require physical production of the documents in question to Court 10D at 11:00am on 4 September 2020.

Amendments 19 November 2020 - - Amended Publication Restrictions to "Nil". 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: 19 November 2020