Citation: R v Hickson; R v McDonald [2022] NSWSC 1433
Court: Supreme Court of New South Wales
Date: 20 October 2022
Judge(s): Harrison J
Background
The accused Maddison Hickson faced a charge of murder. Her co-accused, Taylah McDonald, faced a charge of being an accessory after the fact to that murder, with the central allegation being that she removed the murder weapon, a knife, from the scene and placed it in a dishwasher, destroying any forensic evidence.
A key Crown witness, Shirley Salter, told police that McDonald had admitted to her that she moved the knife. However, in a fresh interview just days before giving evidence, Salter said she could no longer be certain whether it was McDonald or another person present at the scene who made that admission. Defence counsel cross-examined Salter extensively on this inconsistency, making her credibility a live and significant issue.
After Salter finished giving evidence, another witness, Beau Coulthard, gave evidence primarily about the deceased's tendency toward violence. The Crown then sought leave to elicit a portion of Coulthard's earlier police statement in which he recounted Salter having told him that McDonald admitted to moving the knife. The Crown relied on this to restore Salter's damaged credibility under s 108(3)(b) of the Evidence Act 1995.
Legal Issues
- Whether the Crown should be granted leave under s 108(3)(b) of the Evidence Act 1995 to adduce Coulthard's hearsay representation for the purpose of re-establishing Salter's credibility
- Whether s 137 of the Evidence Act 1995 required exclusion of that evidence on the basis that its probative value was outweighed by the danger of unfair prejudice to McDonald
- Whether the discretionary factors under s 192(2) of the Evidence Act 1995 weighed against granting leave
Decision
Issue 1: Leave under s 108(3)(b) to restore credibility
Harrison J refused leave to adduce the evidence. Although the Crown's application was facially within the scope of s 108(3)(b), which permits evidence to be led to re-establish a witness's credibility after it has been attacked, the court found it would be unfair to McDonald to receive the hearsay representation in these circumstances (at [8]).
The critical problem was that Salter herself had never stated in evidence that she told Coulthard about McDonald's admission. Her evidence was complete and she could not be recalled for further examination. Allowing Coulthard to give hearsay evidence of what Salter allegedly told him, on a point Salter never confirmed in the witness box, would bolster her account without giving the defence any opportunity to test it when Salter was available (at [8]).
Issue 2: Risk of compounding credibility disputes
The court was also concerned that admitting Coulthard's evidence on this point would introduce his own credibility as a further contested variable. This risked requiring the jury to navigate a cascade of competing credibility assessments rather than resolving the central issue, McDonald's alleged admission, by reference to Salter's in-court evidence alone (at [9]).
Issue 3: Section 137 and s 192(2)
Having refused leave on the primary fairness ground, the court held it was unnecessary to decide separately whether the evidence fell for exclusion under s 137 because its probative value was outweighed by the danger of unfair prejudice (at [10]).
Orders Made
- Leave to adduce further evidence of Beau Coulthard refused.
Key Takeaways
- Section 108(3)(b) of the Evidence Act 1995 permits evidence to restore a witness's credibility after it has been attacked, but that provision does not operate automatically and leave may be refused on fairness grounds (at [8]).
- A significant factor weighing against granting leave was that the witness whose credibility was to be restored had never confirmed in her own evidence the prior consistent statement that the Crown sought to elicit from a third party, leaving the defence unable to test the point while she was in the box (at [8]).
- Where the witness whose credibility is at issue has completed her evidence, admitting hearsay evidence to rehabilitate her account raises particular fairness concerns because the opposing party loses the opportunity to cross-examine on the representation (at [8]).
- Receiving hearsay credibility evidence can also complicate rather than assist the fact-finding process by introducing additional credibility disputes that the jury must resolve, a factor the court weighed against admission (at [9]).
- Once leave is refused on unfairness grounds, the separate question under s 137, whether probative value is outweighed by the danger of unfair prejudice, may not require separate determination (at [10]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 ss 108, 137, 192
Cases
- Not stated