Citation: R v Ridgeway [2021] NSWSC 1717
Court: Supreme Court of New South Wales
Date: 18 May 2021
Judge(s): Wilson J
Background
The accused stood charged with the murder of a man fatally stabbed in the early hours of 29 February 2020. The trial was due to commence before a jury the following day. The Court convened on the afternoon before trial to resolve three contested evidentiary questions raised by the Crown and the defence.
The central factual disputes anticipated at trial were whether the fatal stabbing was an accident (specifically, whether the deceased had effectively impaled himself by rushing at the accused) and whether the accused had acted in self-defence or in defence of another person present at the scene.
Three pieces of proposed Crown evidence were contested: a witness statement from a person not expected to attend trial, telephone account evidence from a second witness, and a passage from the eyewitness's own statement to police.
Legal Issues
- Whether a deceased's statements reported in the statement of an absent witness (Mr Russell) were admissible as second-hand hearsay, in circumstances where neither the declarant nor the reporting witness was expected to give evidence.
- Whether evidence of a telephone account given by the eyewitness (Ms Hanson) to a Queensland friend (Ms Hayes) shortly after the incident was admissible under s 66 of the Evidence Act 1995 (NSW) as a prior representation made while events were fresh in memory, or under s 108(3) as evidence to restore a witness's credit.
- Whether a passage in Ms Hanson's 10 March 2020 police statement was admissible, having regard to whether its probative value outweighed the danger of unfair prejudice to the accused.
Decision
First issue: Mr Russell's statement (second-hand hearsay)
Mr Russell, who remained subject to an outstanding warrant and had not been located, was not expected to give evidence. His statement recorded the deceased saying "I've been stabbed" and similar words. Wilson J accepted that the evidence was second-hand hearsay and, in the absence of any opportunity for the accused to cross-examine either the deceased or Mr Russell, ruled it inadmissible. The Court acknowledged it was arguably admissible as part of the res gestae but found that the potential prejudice to the accused outweighed the basis for admission. The ruling was expressed as provisional: if Mr Russell were to appear and give evidence, the question could be revisited.
Second issue: Ms Hayes's account of Ms Hanson's telephone call (ss 66 and 108(3))
The Crown sought to lead evidence that Ms Hanson had telephoned Ms Hayes shortly after the incident and stated "Lily stabbed him" and "Lily ran out and stabbed Jason." Wilson J accepted that s 66 was technically satisfied, as the representation was made while events were fresh in Ms Hanson's memory. However, her Honour declined to admit the evidence at this stage, observing that s 66 is not ordinarily used in this way and that permitting the Crown to call both Ms Hanson's direct evidence and Ms Hayes's account of the same events would give the Crown a second bite of the cherry. As to s 108(3), that provision applies where a witness's credit is to be substantially attacked; because the defence had not foreshadowed such an attack, the ruling was deferred. If Ms Hanson's credit were comprehensively challenged in cross-examination, the s 108(3) question could be revisited after her evidence.
Third issue: Paragraph [6] of Ms Hanson's 10 March 2020 statement
This passage contained what appeared to be a comment made by the accused that the Crown contended was relevant to both the accident defence and the self-defence issue. Wilson J found the probative value of the evidence to be high. The defence argument that the evidence lacked specificity and certainty was addressed by noting that the comment, understood in context rather than in isolation, was clearly capable of being interpreted by the jury as relating directly to what occurred. The accused retained the ability to cross-examine Ms Hanson on the passage, including on the basis that it did not appear in any of her earlier accounts and might represent embellishment or fabrication. The Court held that the probative value was not outweighed by any danger of unfair prejudice, and noted that a limiting direction to the jury could be given if required.
Orders Made
• The evidence is admissible
• The accused may test the evidence through cross-examination of Ms Hanson
• A jury direction may be given regarding the relevance of the evidence if requested
Key Takeaways
- Second-hand hearsay recording statements by a deceased person was excluded where neither the deceased nor the reporting witness was available to be cross-examined, with the potential prejudice to the accused outweighing the basis for admission under the res gestae doctrine.
- Section 66 of the Evidence Act 1995 (NSW), while technically capable of applying to a fresh-memory prior representation in a murder trial, was treated with caution where the relevant witness was available to give direct evidence; admitting the prior account in those circumstances was considered to give the Crown an unfair advantage.
- Under s 108(3), the admissibility of prior consistent statements to restore a witness's credit depends on whether that witness's credit is in fact substantially attacked. Wilson J deferred the ruling until after cross-examination, reflecting the provision's remedial and reactive character.
- High probative value in relation to the central issues at trial, particularly where an accused retains the opportunity to cross-examine the witness, can justify admission of evidence even where some prejudice is acknowledged; a jury direction is available to manage residual risk.
- All three rulings were expressed as provisional to varying degrees, illustrating that pre-trial evidentiary decisions made on the eve of trial may be revisited as the actual conduct of proceedings becomes clearer.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 66 (prior representations by witnesses with fresh memory), s 108(3) (prior consistent statements to restore credibility)
Cases cited:
No cases were cited in the judgment.