Citation: R v Hickson (No. 1) [2019] NSWSC 1572
Court: Supreme Court of New South Wales
Date: 12 November 2019
Judge: Davies J
Background
The accused faced trial for the murder of a bookmaker at his Woolwich home on 21 or 22 December 1989. The deceased was found in his garage having suffered multiple stab wounds and blunt force injuries. His belt was bound around his ankles and his head was covered with electrical tape, suggesting a sustained and deliberate attack.
The Crown put its case on three alternative bases: that the accused personally stabbed the deceased intending to kill or cause grievous bodily harm; that the accused participated in a joint criminal enterprise to kill or cause grievous bodily harm; and, in the further alternative, constructive murder arising from a joint criminal enterprise to commit armed robbery during which the deceased was wounded and killed.
Before the jury was empanelled, the accused brought a notice of motion seeking, among other things, to prevent the Crown from opening its case on any joint criminal enterprise basis, and to exclude evidence that the accused had attended a doctor's surgery on 22 December 1989, the day after the murder.
Legal Issues
- Whether there was sufficient evidence to permit the Crown to open the case on a joint criminal enterprise basis, including the involvement of another person in the offence.
- Whether evidence of the accused's medical consultation on 22 December 1989 was relevant and admissible in a circumstantial Crown case.
Decision
Joint criminal enterprise: Davies J applied the threshold from Doney v The Queen (1990) 171 CLR 207, which requires a case to go to the jury if there is any evidence, even tenuous or vague, capable of supporting a guilty verdict when taken at its highest. The Crown relied on alleged admissions by the accused to two witnesses, observations that the accused possessed a large quantity of cash after the offence, forensic evidence, and inferences drawn from the crime scene itself. Critically, the evidence of witness Tania Morsman contained detailed accounts of the accused discussing the planned robbery with a man named "Timmy Foster" in the weeks beforehand, and admissions after the event indicating that Timmy had accompanied the accused into the garage.
His Honour was satisfied that this evidence, taken at its highest, was capable of supporting the joint criminal enterprise alternatives. The accused's motion to prevent the Crown from opening on that basis was refused.
Medical records: The Crown sought to adduce evidence that the accused attended Dr Kalokerinos on 22 December 1989, seeking to connect a cut on the accused's hand to blood found on a sock worn by the deceased, where DNA matching the accused was found. Davies J held that, on the evidence as it stood, this chain of reasoning was entirely speculative. The visit to the doctor had not been proved by any direct witness evidence, and the Medicare item number provided no useful information. There was also a significant prejudice concern: the accused had been attending that same doctor regularly in connection with his obligations while serving a sentence of periodic detention, meaning admission of the evidence might compel disclosure of that sentence.
His Honour ruled the medical consultation evidence was not currently relevant and admissible, and the Crown appropriately indicated it would not refer to it in opening. The ruling was explicitly left open to revisit if additional evidence emerged during the trial.
Orders Made
• Evidence of the visit to Dr Kalokerinos on 22 December 1989 is not admissible at this stage
• The Crown indicated it would not open the case by referring to the visit to Dr Kalokerinos
• Evidence of the doctor's visit will not be permitted to be adduced unless additional evidence is given during trial that changes the current evidentiary position
• Publication restriction lifted (16 December 2021)
Key Takeaways
- The Doney threshold for leaving an issue to the jury is low: even tenuous or vague evidence is sufficient, provided it is capable of supporting a guilty verdict when taken at its highest. The Supreme Court confirmed that this is a lesser standard than the more stringent M v The Queen test applied on unreasonable verdict appeals.
- Witness evidence of pre-offence planning discussions involving a named third party, combined with admissions that the third party was present at the scene, can be sufficient to permit the Crown to open on a joint criminal enterprise basis even where the involvement of that person is not established by direct physical or forensic evidence.
- Circumstantial evidence linking an accused to a crime scene through biological material requires a rational, non-speculative chain of reasoning. A DNA match alone, without evidence connecting an injury to the specific attack, did not cross that threshold here.
- Where evidence of a medical consultation carries a real risk of exposing the accused to prejudice unrelated to the offence charged, admissibility under s 137 of the Evidence Act 1995 (NSW) requires careful consideration. Davies J flagged this as a live issue if the question of the doctor's visit were to resurface.
- Preliminary admissibility rulings at trial do not necessarily foreclose an issue permanently. The court left open the possibility that the medical evidence could be revisited if further evidence emerged during the proceedings.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Cooper v The Queen [2011] NSWCCA 258; (2011) 215 A Crim R 149
- Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Sever v The Queen [2010] NSWCCA 135
- The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35
- Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21