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

1. 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 serious as it was out of character for her not to respond. I said, “Why is that, did someone die?” (This was the worst case I could think of). Tania said, “Yes.” Tania was very uncharacteristically, very quiet and still. I said, “You have to tell somebody." She said, “I can’t tell anyone.”

2. Mr Young SC for the accused objected to the evidence being given. He submitted that the evidence offended the credibility rule in the Evidence Act 1995 (NSW), and that, in any event, it was so vague as not to have probative value. He pointed to the fact that no reference was made to Mr Hickson in the conversation.

3. The Crown submitted that by a combination of ss 62 and 66(2) the evidence, which was accepted as being hearsay, was admissible. The Crown appeared initially to rely on s 108(3) when I raised the credibility rule in s 102 of the Evidence Act.

4. I rejected the evidence and said that I would give reasons at a later time. These are my reasons.

5. The following provisions of the Evidence Act are relevant:

62   Restriction to “first-hand” hearsay

(1)   A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2)   A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(3)   …

…

66   Exception: criminal proceedings if maker available

(1)   This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)   If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a)   that person, or

(b)   a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A)   In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a)   the nature of the event concerned, and

(b)   the age and health of the person, and

(c)   the period of time between the occurrence of the asserted fact and the making of the representation.

Note.

Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

…

101A Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

102    The credibility rule

Credibility evidence about a witness is not admissible.

Notes.

1.   Specific exceptions to the credibility rule are as follows:

•    evidence adduced in cross-examination (sections 103 and 104)

•   evidence in rebuttal of denials (section 106)

•   evidence to re-establish credibility (section 108)

•   evidence of persons with specialised knowledge (section 108C)

•    character of accused persons (section 110)

Other provisions of this Act, or of other laws, may operate as further exceptions.

2. Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

…

108   Exception: re-establishing credibility

(1)   The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2)   (Repealed)

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a)   evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

6. In my opinion, the evidence is not admissible as hearsay because, although the hearsay rule does not apply to evidence of the representation that is given by a person who heard the representation being made, the requirement is that when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. Section 66(2A) sets out three matters which the Court may take into account when considering whether the occurrence of the asserted fact was fresh in the memory of the person. One of those matters is the period of time between the occurrence of the asserted fact and the making of the representation.

7. The asserted fact in the present matter is the admission said to have been made by Mr Hickson to Ms Morsman both before 22 December 1989 and in the day or days following. The representation now sought to be led was made at some time between January and April 2017.

8. In the well-known passage from Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61, the joint judgment of Gaudron, Gummow and Hayne JJ said at [4]:

The word "fresh", in its context in s 66, means "recent" or "immediate". It may also carry with it a connotation that describes the quality of the memory (as being "not deteriorated or changed by lapse of time") but the core of the meaning intended, is to describe the temporal relationship between "the occurrence of the asserted fact" and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.

9. In that case, complaint evidence made six years after the alleged assaults was admitted at the trial. The High Court upheld the appeal against the admission of the complaint.

10. In my opinion, it cannot be said that the proviso to s 66(2) is satisfied in the present case when the representation was first made some 27 years after the event.

11. In any event, the evidence sought to be led offends the credibility rule. The issue is whether or not Mr Hickson made the admissions to Ms Morsman. The accused’s position is that Ms Morsman has fabricated her evidence and did so after she was contacted by the police in 2017.

12. Evidence was led from Ms Morsman both in chief and in cross-examination to the effect that she had told various partners she had been with between 1990 and 2017 of the alleged admissions. The representation she made in that regard to her partners was disputed. However, s 108 has no work to do in the present situation because there is no question of Ms Morsman being re-examined about the timing of the representations she made to her partners in order to meet the attack on her credibility about the alleged fabrication of her evidence after she was contacted by the police. Her evidence is complete.

13. Section 108(3) speaks of the credibility rule not applying to evidence of a prior consistent statement of a witness if the witness is alleged to have fabricated or re-constructed evidence. Mr Pragnell is not such a witness. Instead, any evidence that he gives about what Ms Morsman said to him in relation to the alleged admissions by Mr Hickson is only evidence designed to prop up the credibility of Ms Morsman. That is credibility evidence within the meaning of s 101A of the Act.

14. For these reasons I ruled that the evidence from Mr Pragnell was inadmissible.

15. The Crown sought to lead evidence from Detective Sergeant Sharyn Ciregna. Detective Sergeant Ciregna is put forward as an expert witness in mark evidence and comparison. I rejected that evidence and said I would give reasons at a later time. These are my reasons.

16. In her report Detective Sergeant Ciregna was asked to:

(a)   Examine a series of images from a historical homicide which contain both shoe sole impressions and scene impressions within a laboratory report;

(b)   Compare these shoe sole impressions and scene impressions, and

(c)   Provide an opinion as to whether the shoe sole impressions could have made the scene impressions contained within the laboratory report.

17. Evidence had been given by Chief Inspector David Forbes who in December 1989 was a crime scene investigator in the police force. Chief Inspector Forbes gave evidence of observing footprints in blood at the scene of the murder in the deceased’s garage. He said that he observed a number of partial shoe prints.

18. Detective Sergeant Ciregna was provided with various photographs of the partial shoe prints. She then sought to make comparisons between those partial shoe prints and three shoes of the brand Trax. These shoes were a left, size 4 Trax men’s leather sports shoe, a right, size 7 Trax basketball sports boot and a right Trax men’s Pursuit, the size of which was not specified. Of some significance was the fact that none of these shoes had three stripes on the side.

19. In relation to the ten images provided to her, Detective Sergeant Ciregna concluded for each of images 1-8 and 10 that there was a limited association of class characteristics between the specified shoes she tested and the relevant image. She referred in each case to the low level detail in the impression preventing a more conclusive determination. She concluded in each such case:

Other shoes displaying the same pattern could have made this impression.

20. In the information sheet which was appendix A to her report, a conclusion of “Limited association of class characteristics” corresponded with examination findings as follows:

Some similar class characteristics were present; however, there were significant limiting factors in the questioned impression that did not permit a stronger association between the questioned impression and the known footwear or tyre. These factors may include but were not limited to insufficient detail, lack of scale, improper position of scale, improper photographic techniques, distortion or significant lengths of time between the date of the occurrence and when the footwear or tyres were recovered that could account for a different degree of general wear. No confirmable differences were observed that could exclude the footwear or tyre.

In the opinion of the examiner, factors (such as those listed above) have limited the conclusion to a general association of some class characteristics. Other shoes/tyres with the same class characteristics are included in the population of possible sources of the impression.

21. In relation to image 9, Detective Sergeant Ciregna concluded that there were indications of non-association between the left and right Trax Pursuit. She again referred to the low level detail preventing a more conclusive determination, and said that other shoes displaying the same pattern could have made this impression.

22. The information sheet provided that where the conclusion was “Indications of non-association” the examination findings were these:

In the opinion of the examiner, the questioned impression exhibits dissimilarities when compared to the known footwear or tyre; however, certain details or features were not sufficiently clear to permit exclusion.

23. Ms Morsman gave the following evidence about the shoes:

Q. What did those shoes you've referred to as runners, what did they look like?

A. They were white and blue.

Q. When you say they were white and blue is there any other detail you can provide about how they looked?

A. Yes, they had stripes, three stripes.

Q. Where were the stripes?

A. On the sides of the shoes.

…

Q. Those shoes that you mentioned, the white shoes with the three stripes on them, had you seen Mr Hickson wear them before 21 December 1989?

A. Yes.

Q. Had you seen him wear that type of shoe afterwards as well?

A. Yes.

Q. I don't mean the same pair but that style of shoe, a white shoe with three white stripes?

A. Yes.

Q. I show you

HIS HONOUR: I think they were blue stripes.

CROWN PROSECUTOR

Q. Sorry, white with blue stripes. I show you these photographs (shown). That's a selection of four photographs, you've seen them all before?

A. Yes.

24. In cross-examination she gave this evidence:

Q. Ms Morsman, you told us this morning that you have a recollection that the accused got rid of those sneakers he'd been wearing into the bins; is that right?

A. I believe so.

Q. They're the type that have the stripes up the side that you told us about in answering questions to the Crown?

A. Yeah, I believe that's right.

Q. Were they Adidas type shoes; is that your understanding?

A. Yes, Adidas.

Q. And he always wore that type of shoe; did he not?

A. That was his signature.

Q. And I think there's photographs [sic] in the brief where he's riding bikes and getting around in various places where he can be seen wearing sneakers consistent with that type of shoe; is that right?

A. Yes.

Q. In fact, even after this incident, after he disposed of them, as you tell us, he was again wearing that type of shoe; was that right?

A. At some point he was.

25. The Crown also tendered four photographs where Ms Morsman identified the accused as being shown in those photographs. Three of those four photographs show the accused wearing white runners with three stripes on them.

26. The Crown submitted that whilst the evidence had certain limitations, it was nevertheless a circumstance which the Crown was entitled to adduce where what had been put to Ms Morsman was that the sneakers disposed of by the accused after the murder were Adidas type shoes.

27. Mr Young SC submitted that the probative value of the evidence was low and was outweighed by the prejudice to the accused, invoking s 137 of the Evidence Act.

28. In my opinion, the probative value of the evidence is slight, for the following reasons. First, when asked if the shoes disposed of by the accused were “Adidas type shoes”, Ms Morsman answered, “Yes, Adidas”. Ms Morsman was not asked in re-examination whether the shoes were Adidas shoes or, perhaps, a different brand that looked like Adidas shoes such as Trax. That omission is a little hard to understand when the Crown knew that the testing by Detective Sergeant Ciregna was carried out on Trax shoes alone.

29. Secondly, there was no testing of Adidas shoes. Rather, testing involved a cheaper brand of shoe called Trax which seemingly looked like Adidas shoes.

30. Thirdly, there is said to be an admitted difficulty about the dimensions of some or all of the images. Coupled with that is the fact that it was not known what shoe size the accused wore, and the Crown accepted that no such evidence would be given in the Crown case.

31. Fourthly, the shoes tested were not Trax shoes with three stripes. There is no evidence of the sole pattern on Trax shoes with three stripes.

32. Fifthly, the conclusions of Detective Sergeant Ciregna are, at best, equivocal. The weakness of the examination findings are clear in the light of its conclusions, namely “limited association of class characteristics” or “Indications of non-association” which were incapable of permitting exclusion. There is the further conclusion that other shoes displaying the same pattern could have made the impression. There is no indication of how many other shoes such a conclusion might embrace.

33. Notwithstanding any directions that might be given to the jury about this expert evidence, I consider that there is a not insubstantial risk that the jury would attach undue significance to the conclusion in relation to nine of the images that the pattern of the toe area of some of the shoes and the impression correspond. The evidence is vague about whether the accused ever wore Trax shoes, although the better view of Ms Morsman’s evidence is that they were Adidas shoes. I consider that there is danger of unfair prejudice to the accused in that regard in circumstances where the probative value of the evidence is low.

34. For those reasons I refused to admit the evidence.

**********

Amendments

16 December 2021 - Publication restriction lifted.

Decision last updated: 16 December 2021