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Supreme Court 28 November 2019

R v Hickson (No. 3)

[2019] NSWSC 1650

Homicide
EVIDENCE CREDIBILITY EVIDENCE HEARSAY EVIDENCE CRIMINAL PROCEEDINGS WHERE THE CROWN SOUGHT TO LEAD SECOND S 102 EVIDENCE ACT

Citation: R v Hickson (No. 3) [2019] NSWSC 1650
Court: Supreme Court of New South Wales
Date: 28 November 2019
Judge: Davies J

Background

The accused stood trial for murder. The Crown's case included evidence from a witness, Ms Morsman, who alleged the accused had made admissions to her in connection with the alleged offence. A central dispute at trial was whether Ms Morsman had fabricated that evidence after being contacted by police in 2017.

The Crown sought to bolster Ms Morsman's credibility by calling her former partner, Mr Prangnell, to give evidence of a conversation he had with her between January and April 2017. In that conversation, Ms Morsman reportedly made statements implying she feared disappearing because "someone died." No reference to the accused was made in the conversation. The Crown also sought to tender expert evidence from Detective Sergeant Ciregna comparing bloody footprints found at the murder scene with the soles of several Trax brand shoes.

Both pieces of evidence were challenged by counsel for the accused. Davies J ruled both inadmissible and delivered reasons for those rulings.

  • Whether Mr Prangnell's evidence of Ms Morsman's out-of-court statements was admissible as hearsay evidence under ss 62 and 66 of the Evidence Act 1995 (NSW), given that the statements were made approximately 27 years after the alleged admission by the accused
  • Whether that same evidence was inadmissible credibility evidence under s 102 of the Evidence Act, with no applicable exception
  • Whether the expert footprint comparison evidence was admissible under s 137 of the Evidence Act, given concerns that the risk of unfair prejudice to the accused outweighed its probative value

Decision

Hearsay: the freshness requirement was not satisfied. Section 66(2) of the Evidence Act allows hearsay evidence to be given by a person who heard a representation, but only if the asserted fact was "fresh in the memory" of the person who made it. The alleged admission by the accused had occurred before and shortly after 22 December 1989. Ms Morsman's representation to Mr Prangnell was made in early 2017, some 27 years later. Applying the High Court's analysis in Graham v The Queen (1998) 195 CLR 606, Davies J held that "fresh" requires a temporal relationship measured in hours or days, not years. The s 66(2) gateway was therefore not available.

Credibility: no exception applied. Even setting aside the hearsay problem, Davies J found the evidence was credibility evidence within the meaning of s 101A: its sole purpose was to prop up Ms Morsman's credibility. The credibility rule in s 102 renders such evidence inadmissible. The Crown pointed to s 108(3), which provides an exception where a witness is alleged to have fabricated evidence. However, that exception applies to prior consistent statements of the witness whose credibility is attacked. Mr Prangnell was not such a witness, and Ms Morsman's own evidence was already complete. Section 108(3) had no work to do on these facts.

Expert footprint evidence: probative value outweighed by prejudice. Davies J identified several compounding weaknesses in Detective Sergeant Ciregna's evidence. Ms Morsman had described the accused's shoes as Adidas, yet the expert tested only Trax brand shoes. No Adidas shoes were tested. The shoe size of the accused was unknown. Dimensional difficulties affected some images. The conclusions themselves were, at best, equivocal, including findings of "limited association of class characteristics" or "indications of non-association," with an acknowledgment that other shoes could have made the same impression. Under s 137, a court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice. Davies J found that risk was not insubstantial: a jury might attach undue significance to the nine images showing some correspondence in the toe area, in circumstances where the evidence's overall probative value was low.

Orders Made

• Evidence of photographs showing the accused wearing white runners with three stripes refused to be admitted

Key Takeaways

  • Under s 66(2) of the Evidence Act 1995 (NSW), a representation must have been made while the asserted fact was "fresh in the memory" of the person who made it. Applying Graham v The Queen, the Supreme Court confirmed that this temporal requirement is measured in hours or days, and a gap of 27 years between the event and the representation is plainly insufficient.
  • Evidence tendered solely to bolster a witness's credibility constitutes credibility evidence under s 101A and is inadmissible under the credibility rule in s 102, unless a specific statutory exception applies.
  • The s 108(3) exception for prior consistent statements applies to statements made by the witness whose credibility is under attack, not to statements made about that witness by a third party.
  • Where expert opinion evidence contains only equivocal conclusions, and where the items tested differ materially from the items allegedly used by the accused, a court may find that the risk of unfair prejudice under s 137 outweighs the evidence's probative value.
  • Gaps in the Crown's evidentiary foundation, such as the failure to test the brand of shoe described by a key witness or to establish the accused's shoe size, can be significant factors in a s 137 balancing exercise.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 62, 66, 101A, 102, 108, 137

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