R v Hickson (No. 3) - [2019] NSWSC 1650

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hickson (No. 3) [2019] NSWSC 1650
Hearing dates: 25 November 2019
Date of orders: 25 November 2019
Decision date: 28 November 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
Crown’s applications refused as per paragraphs [14] and [34] of the judgment

Catchwords:
EVIDENCE – credibility evidence – hearsay evidence - criminal proceedings – admissibility of credibility evidence in a murder trial – where the Crown sought to lead second-hand hearsay evidence of an admission allegedly made by the accused – where the sole purpose of that evidence was to bolster the credibility of the witness to the alleged admission – s 102 Evidence Act – no applicable exception to the credibility rule – representation not fresh in the mind of the person making representation - evidence inadmissible
EVIDENCE – expert evidence – criminal proceedings – admissibility of expert evidence in a murder trial – where the Crown sought to lead evidence from an expert in mark evidence and comparison – where the expert had furnished a report comparing footprints in blood at the scene of the murder and sole impressions of a number of Trax brand shoes – where evidence adduced at trial suggested that the accused wore a different brand of shoes – where the findings of the report were, at best, equivocal – s 137 Evidence Act – risk of prejudice outweighed probative value of the evidence – evidence inadmissible
Legislation Cited:
Evidence Act 1995 (NSW) ss 62, 66, 101A, 102, 108, 137

Cases Cited:
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61

Texts Cited:
Nil

Category: Procedural rulings
Parties: Crown
Terry John Hickson (Accused)
Representation:
Counsel:
C Everson (Crown)
P D Young SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associate Solicitors (Accused)

File Number(s): 2017/331768

JUDGMENT

Counsel for the Crown sought to lead evidence from Jeremy Prangnell who was a partner of Tania Morsman from January 2017 to April 2017. The evidence counsel sought to lead was contained in paragraph 9 of Mr Prangnell’s statement of 4 May 2018. That paragraph reads:

9. I remember one time I was sitting on the balcony of my unit with Tania. The relationship was becoming a bit more serious and we were planning a holiday together and we were talking about things from our past that we thought the other should know. Tania had already been open with me in the past about her past employment as a prostitute. Tania started this conversation and at [the] time was very serious and would not look at me and said words similar to "I want you to know that one day I might disappear.” She was very quiet after saying this. I think I tried a few times to ask her why and got no response. She would still not look at me and not respond at all. I was thinking in mind it must be some [scil. something] very…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hickson (No. 3)

Details

AGLC: R v Hickson (No. 3) [2019] NSWSC 1650
Case: [2019] NSWSC 1650
Decision Date: 28 November 2019

CaseChat Overview and Summary

The case of R v Hickson (No. 3) arose in the context of a murder trial in which the Crown sought to introduce certain types of evidence against the accused. The issues under consideration were primarily concerned with the admissibility of second-hand hearsay evidence and expert evidence in the criminal proceedings. The court had to determine whether the hearsay evidence, which was intended to bolster the credibility of a witness, could be admitted under section 102 of the Evidence Act, and whether the expert evidence, which involved a comparison of footprints and shoe impressions, was admissible under section 137 of the same Act.

The court began by examining the hearsay evidence, which was intended to corroborate a witness's account by introducing an alleged admission made by the accused. The court found that the hearsay evidence did not fall within any exception to the credibility rule, as it was not fresh in the mind of the person making the representation. Consequently, the court held that the hearsay evidence was inadmissible. The court then turned to the expert evidence, which involved a comparison of footprints in blood found at the scene of the murder with the sole impressions of a number of Trax brand shoes. The court found that the expert's report was equivocal at best, and that the risk of prejudice outweighed the probative value of the evidence. Therefore, the expert evidence was also deemed inadmissible.

In conclusion, the court ruled that both the second-hand hearsay evidence and the expert evidence were inadmissible in the murder trial. The court's decision was based on the provisions of the Evidence Act and a careful consideration of the potential for prejudice and the probative value of the evidence. The outcome of the case highlights the stringent requirements for the admissibility of certain types of evidence in criminal proceedings.

Orders