R v Ridgeway
[2021] NSWSC 1717
•18 May 2021
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New South Wales |
Case Name: | R v Ridgeway |
Medium Neutral Citation: | [2021] NSWSC 1717 |
Hearing Date(s): | 18 May 2021 |
Date of Orders: | 18 May 2021 |
Decision Date: | 18 May 2021 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | See [11], [19], and [29] |
Catchwords: | CRIME — murder — trial — admissibility of evidence — question of admissibility of evidence pursuant to ss 66 and 108(3) Evidence Act — second-hand hearsay — evidence of an admission — capacity of evidence to effect resolution of issues in the trial — whether probative value outweighs prejudicial effect |
Legislation Cited: | Evidence Act 1995 (NSW) |
Category: | Procedural rulings |
Parties: | Regina (Crown) |
Representation: | Proceeding 2020/68218 – 001 |
File Number(s): | 2020/68218 |
Publication Restriction: | Nil |
EX TEMPORE JUDGMENT (REVISED)
HER HONOUR: The Court has been asked to convene this afternoon to consider three issues as to the admissibility of evidence which is proposed to be led in the trial of Ms Ridgeway, which will commence before a jury tomorrow, 19 May 2021.
The first of the issues relates to the statement of Mark Anthony Russell, a statement made by Mr Russell to police on 6 March 2020, that being about six days after the incident in which the deceased was fatally stabbed.
In his statement, Mr Russell says, concerning that event, at [22], "I stood near him", that being the deceased:
"He turned and looked at me and lifted his shirt and said, 'I've been stabbed'. He had a really stunned look on his face, and I looked down at his bare chest and saw blood."
At [29], Mr Russell reports of Mr Adams that he said, “‘I've been stabbed, I've been stabbed’, but he never said who”.
Ms Avenell of Senior Counsel for the accused takes objection to that evidence. She submits that it is second-hand hearsay. That is on the basis that Mr Russell is not expected to attend to give evidence as a witness.
The Court has been advised that, since very shortly after these events and even before these events, Mr Russell was the subject of a warrant of apprehension, and was wanted by police. He has not been able to be found and, to date, the warrant in existence for his apprehension has not been executed. Neither party expects that he will attend court, and it is not anticipated that he will give evidence.
The Court was advised yesterday that the proposal with respect to his statement is that it be read to the jury. Obviously, that will be in the absence of any cross-examination or any capacity for either party to test the veracity of the statement. With that background, Ms Avenell submits that the evidence is second-hand hearsay. There will be no opportunity at all for the accused to test the evidence. Plainly, the deceased cannot give evidence, but more significantly, neither is it expected will Mr Russell.
The Crown relies upon it, in some regards raising issues as to fairness. The Crown advises the Court that there are aspects of Mr Russell's statement which will not be read to the jury by agreement of the parties, and the submission to the Court is that the accused is effectively taking advantage of the position that flows from Mr Russell's absence to seek to exclude evidence which is particularly damaging whilst perhaps having the benefit of evidence which is not.
That may be the case, but it is difficult for the Court to make an assessment of that argument. The disputed evidence is unquestionably, and in the present circumstances, second-hand hearsay. I suppose it could be admitted as part of the res gestae. To some extent it might be that it goes to and makes sense of some of the events that are related by Mr Russell in his statement, but I think it remains a fundamental issue that there would be evidence placed before the Court of the deceased's statement in circumstances where the accused would not be permitted in any way at all to test it, even via cross-examination of Mr Russell as to his observations, the circumstances in which he made his observations, and so on.
I think in light of that, whilst the evidence is arguably admissible, it seems to me that the potential prejudice to the accused is such that the evidence should not be admitted. Obviously if Mr Russell turns up and he can be called to give evidence, then that matter can be reviewed, but for present purposes in the circumstances in which the Court understands the trial will be conducted, I would not permit the Crown to lead second-hand hearsay in which the deceased is stated to have said particular things as set out in [22] and [29].
The second issue that the Court is asked to determine is the question of the admissibility of the whole of the evidence that could be given by Connie Hayes. Ms Hayes is, it seems, a close friend of Nikita Hanson, who is the only known and available witness to what occurred in the early hours of 29 February 2020. Ms Hayes is not a resident of New South Wales. At the material time she was residing in Queensland.
She received a telephone call from her friend Ms Hanson at what is presumably a little after 6 in the morning New South Wales summer time, in which her friend Ms Hanson gave her an account of what she said occurred at the front of her premises on 29 February 2020. She gave an account to Ms Hayes of seeing the accused stab the deceased, that is, she asserted “Lily stabbed him”. She gave an account of a dispute between herself and the deceased, getting the boys to come and get him to leave and then, later on, the deceased returning, after which she told her friend that words were said between Lily - the accused - and Jason, the deceased. According to Ms Hayes, Ms Hanson said, "Lily ran out and stabbed Jason".
The Crown seeks to rely upon that evidence on two bases: Firstly, pursuant to s 66 of the Evidence Act 1995 (NSW), insofar as it is evidence of a prior representation, that is, the representation made by Ms Hanson to Ms Hayes, at a time when the subject matter was fresh in the memory of Ms Hanson. Secondly, the Crown relies upon s 108(3) of the Evidence Act. Section 108(3) is directed to the restoration or buttressing of the credit of a witness whose credit is impugned. The Crown's argument is premised on the understanding that the evidence of Ms Hanson is to be the subject of a wholesale attack, and she is to be approached as a witness upon whom the jury could not rely, and one without credibility.
Section 66 and s 108(3) as I understand them roughly parallel common law principles that related to the admission of complaint evidence in sexual assault cases. It was formally the position at common law that the evidence of a sexual assault complainant, as it was phrased, “raising a hue and cry”, would be admissible both as evidence of a statement immediately made and, insofar as that evidence would go, to support the credit of that person. It is routinely used for those purposes in trials where an accused stands trial for sexual assault offences.
Section 66 at least is not usually used in circumstances such as these and whilst, technically, I think the evidence is admissible under that provision, that is, it is evidence which relates to a previous representation that was made at a time when the subject of the representation would have been very fresh in the memory of Ms Hanson, I think there is force in what Ms Avenell puts, and that is, it is really just giving the Crown a second bite of the cherry. Ms Hanson is available as a witness; she can be called.
If there is the sort of wholesale attack upon her as a witness of credit that the Crown has foreshadowed, then s 108(3) certainly comes into play, but at this stage, in circumstances where Ms Avenell has disavowed such an approach, I think it is rather unfair to permit the Crown to call evidence both from Ms Hanson as to what she says she saw and heard, and then from another witness as to what Ms Hanson says she saw and heard.
The Crown's argument under 108(3) has more force if it is the case that there is to be such a wholesale attack on Ms Hanson's credit. Section 108(3) is predicated on the basis that the credit of a witness is to be impugned in that way, and if, contrary to the accused's position in submission on the voir dire, Ms Hanson's credit is subject to that sort of attack, then it would potentially significantly buttress the credit of Ms Hanson if Ms Hayes were to give this evidence which is disputed. In circumstances where there is no agreement that there is to be that sort of attack, however, I think it is premature to make that ruling.
In short, whilst one can apply s 66 to the evidence, and technically it fits the criteria, in my view, that is not what the section was really designed to facilitate, and I think it would be unfair to an extent to permit the Crown to lead that evidence given that it has Ms Hanson, and she can give the evidence herself. If contrary to the present assurance to the Court, her evidence is attacked wholesale on the basis of its unreliability and the fact that it lacks all credit, then there is a case for the admission of Ms Hayes's evidence under s 108(3), but I would reconsider that issue after Ms Hanson has given her evidence and after such time as it is clearly known what she is to be asked in cross-examination.
The final aspect of evidence which is disputed is [6] of a statement of Nikita Hanson of 10 March 2020, now Exhibit VD.D. Although the Court does not have the benefit of earlier accounts apparently made by Ms Hanson of what she saw and heard at the relevant time, being an interview with police on 29 February, an email of some date after that and before 4 February, and a statement of 4 February 2020, it seems that in her statement of 10 March 2020, Ms Hanson is raising a matter which could well be of some significance which was not reported to police in her earlier discussions with them, and in her earlier witness statement.
That is a statement that Ms Hanson attributes to the accused, made immediately after the accused is said to have run back towards Ms Hanson's house after she had been seen by Ms Hanson to stab the deceased. Ms Hanson says, at [6]:
"She was still carrying the knife in her right hand. Lily walked past me at the front door, and as she entered the house she said, 'Oh, babe, you should have felt that. It felt so good'. She then ran past me into the kitchen of the house.”
Ms Avenell for the accused objects to the evidence and invokes s 137 of the Evidence Act to argue that the Court should exclude the evidence as being unfairly prejudicial. I take it from the reliance upon s 137 that there is no issue with the admissibility of the evidence at a prima facie level. Clearly it is admissible. It is a comment said to be made by an accused person immediately after an act which is the act relied upon by the Crown to found the offence charged, and arguably, it is an admission to that act.
Ms Avenell's objection is that the comment reported to have been made by the accused is one which lacks specificity and certainty as to meaning, and because of that lack of specificity, it is open to conclude that the jury could misuse it. It is of an equivocal nature and, it is submitted, any jury hearing it may give it far more weight than it deserves in the absence of any comment which directly links it to the stabbing of Mr Adams.
The Crown submits that the evidence is an admission, and further, that it goes to rebut the two issues raised by the accused in the trial, being a claim of accident, that is, that Mr Adams, when running at the accused, ran into a knife she was holding; and secondly, self-defence.
As the reliance on s 137 makes clear, the evidence is prima facie admissible. The evidence is, as the Crown submits, capable of being construed as an admission. Equally, it is capable of going to rebut a claim of accident, and it is capable of rebutting a claim of self-defence. Those, as I understand it on the limited information the Court has at present, are the two central issues which will be in dispute in the trial.
The question then is whether the Court should refuse to admit the evidence which the Crown seeks to lead because its probative value is outweighed by the danger of unfair prejudice to the accused. The probative value seems to me to be very high. The issues as I have said are accident, whether this was a voluntary and willed act of the accused that caused the fatal injury to Mr Adams, or whether Mr Adams effectively impaled himself when rushing at the accused. The second issue is whether the accused acted in defence of herself, or perhaps also, or in the alternative, Ms Hanson, in producing and using a knife in an offensive way. This evidence is capable of addressing both of those aspects of the matter.
Although I understand the basis upon which Ms Avenell submits that the evidence lacks specificity and certainty, I think that is only so if it is interpreted standing alone. If one has regard to the evidence in the context in which it is said to have arisen, then it is clearly open to the jury to conclude that the comment made was a comment made directly about what had occurred to Mr Adams.
It will be open to the accused to test the evidence. Ms Hanson is to be called and, in that she did not raise it in any of her discussions or communications or official statements with police prior to 10 March 2020, there is a clear basis upon which it could be suggested to her that this is embellishment or an invention or something that's been fabricated out of spite. However, it is categorised, there is a clear and sound basis for cross-examination of Ms Hanson. That can all be tested in front of the jury.
It seems to me that the evidence is clearly admissible. Its prejudice compared to its probative value is not such that its probative value is outweighed. If there is any issue about the use the jury might make of it, the jury members can be given a direction as to the relevance of the evidence, that it only has relevance if they conclude that the comment was made in relation to the stabbing of Mr Adams, and if the Court is asked to do so, a suitable direction can be crafted and given. In my view however, the probative value of the evidence is high, and the danger of unfair prejudice is not such as to outweigh that probative value.
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