Citation: R v Hickson; R v McDonald [2022] NSWSC 1450
Court: Supreme Court of New South Wales
Date: 26 October 2022
Judge(s): Harrison J
Background
Two accused were on trial for offences arising from the death of a man at a residential property. One accused faced a murder charge; the other, referred to here as the co-accused, faced charges including being an accessory after the fact to murder (Count 2) and an accessory before the fact charge (Count 3). The Crown alleged the co-accused had moved the knife used in the killing and placed it in a dishwasher.
The central difficulty for the Crown on Count 2 was timing. The available evidence suggested that any act of moving the knife had occurred before the co-accused became aware the deceased had died. That left the Crown relying on statements the co-accused made to police, which the Crown characterised as deliberate lies amounting to admissions capable of constituting the required act (the actus reus) of accessory after the fact.
Before the Crown closed its case, the court was asked to resolve two separate evidentiary disputes: whether a witness should be recalled for further cross-examination, and whether the co-accused's police statement should be admitted and whether Count 2 should be withdrawn from the jury.
Legal Issues
- Whether it was in the interests of justice to recall a witness for further cross-examination, where that witness faced a pending criminal prosecution for the subject matter of the proposed questioning
- Whether lies alleged in the co-accused's police statement were capable of constituting the actus reus of accessory after the fact to murder
- Whether sufficient evidence existed to support Count 2 going to the jury, or whether a directed verdict of not guilty was required
Decision
Recall of the witness: The court refused the application to recall a witness who had already given evidence under a certificate issued pursuant to s 128 of the Evidence Act 1995. The proposed further cross-examination concerned a pending charge against the witness for perverting the course of justice, unrelated to the knife. Harrison J found it highly unlikely the witness would admit to the pending offence, meaning any denial would be of no forensic value unless shown to be false. The court also held that the mere spectacle of exposing the witness to an allegation of dishonesty, whatever the answers might be, was not a legitimate basis for recalling her. Given the witness was already being prosecuted for the very conduct in question, the interests of justice did not favour requiring her to answer.
The Crown's tender of the co-accused's statement: The Crown sought to tender the co-accused's police statement on the basis that certain denials within it, specifically that she did not see a knife or sharp object in anyone's hand, constituted lies that assisted the other accused. The court rejected that tender. Harrison J accepted the defence submission that a statement denying sight of a knife in anyone's hand is materially different from a positive assertion that the other accused was not holding anything. The former does not advance the other accused's ability to evade justice; only the latter might.
Directed verdict on Count 2: Without the statement, no remaining evidence was capable of establishing that the co-accused did anything constituting the actus reus of accessory after the fact at a time when she was aware of the deceased's death. The court acknowledged its role was not to foreclose the possibility of any verdict, but concluded there was simply no case to go to the jury on Count 2. Accordingly, Harrison J directed that the jury return a verdict of not guilty on that count.
Orders Made
- Application to recall the witness refused
- Co-accused's police statement rejected and not admitted into evidence
- Directed verdict of not guilty entered on Count 2 (accessory after the fact to murder)
Key Takeaways
- The actus reus of accessory after the fact to murder requires an act of assistance performed at a time when the accused was aware the principal offence had been committed; acts taken before that awareness crystallises cannot satisfy that element.
- A witness facing a pending criminal prosecution for the very conduct proposed to be explored in cross-examination is a significant factor weighing against an order under s 128(4) of the Evidence Act 1995 requiring that witness to answer.
- Mere forensic spectacle, such as exposing a witness to an allegation of dishonesty in front of a jury regardless of the answers, does not constitute a legitimate basis for recalling a witness in the interests of justice.
- Where alleged lies in a statement fall short of positively asserting a fact favourable to a co-accused, those lies are not capable of constituting the actus reus of accessory after the fact; a negative denial is not equivalent to an affirmative exculpatory assertion.
- In directing an acquittal, the Supreme Court confirmed that a trial judge must assess whether there is any evidence capable of supporting the elements of the offence, without usurping the jury's role, but must direct an acquittal where that threshold is not met.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 128
Cases
- Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74
- Ewan v R [2020] NSWCCA 85
- R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345
- R v Stanford (Marcus) [2016] NSWSC 1174