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Court of Criminal Appeal 31 May 2024

Ridgeway v R

[2024] NSWCCA 85

Homicide
CRIME APPEALS APPEALS AGAINST CONVICTION MISCARRIAGE OF JUSTICE MANSLAUGHTER SECOND

Citation: Ridgeway v R [2024] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 31 May 2024
Judges: Stern JA, Rothman J, Yehia J

Background

The appellant was convicted of manslaughter in February 2022 following a fatal stabbing that occurred in the early hours of 29 February 2020. She stabbed the deceased in the left chest outside a house where a witness, Ms Hanson, was living. The appellant did not give evidence at trial, and her defence was that the stabbing was either accidental or, alternatively, carried out in self-defence (including in defence of Ms Hanson).

The central piece of contested evidence was a statement Ms Hanson made to police on 10 March 2020, in which she said the appellant had uttered the words "It felt so good" shortly after the stabbing. At trial, Ms Hanson accepted she had told police this but denied the appellant actually said those words. The statement was admitted without any objection from defence counsel and without any direction from the trial judge limiting the jury's use of it.

The appellant sought leave to appeal against her conviction, arguing that the use of the statement as an admission constituted a miscarriage of justice. Because no objection had been taken at trial, she required leave to raise the ground on appeal under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15. She was sentenced to 7 years and 7 months imprisonment, with a non-parole period of 5 years.

  • Whether the failure of defence counsel to object to the admission of the statement, or to seek a limiting direction, constituted a material irregularity amounting to a miscarriage of justice.
  • Whether the trial judge's failure to give the jury a direction limiting the use of that evidence was itself a material irregularity.
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to dismiss the appeal despite any irregularity, on the basis that no substantial miscarriage of justice had occurred.

Decision

On the miscarriage of justice question, the Court found there was no rational forensic explanation for defence counsel's failure to object to the admission of the statement for a hearsay purpose, or to seek a direction limiting its use. Had an objection been made, the evidence would not have been admissible for a hearsay purpose. The Court held that both counsel's omission and the trial judge's failure to give a limiting direction were material irregularities that, taken together, produced a miscarriage of justice.

The statement was second-hand hearsay evidence of an alleged admission by the appellant and was highly prejudicial. Even though no objection was taken (meaning the evidence was technically not inadmissible once admitted), the Court held that the trial judge was nonetheless obliged to give the jury a limiting direction in the interests of a fair trial. The Court granted leave under r 4.15 and upheld the conviction appeal.

On the proviso, the Court rejected the Crown's submission that no substantial miscarriage of justice occurred. The proviso requires the appellate court to be satisfied of the appellant's guilt beyond reasonable doubt before dismissing the appeal despite an irregularity. The Court was not so satisfied. The appellant's account of acting in self-defence was not glaringly improbable, particularly given her history of being subjected to domestic violence and a recent serious assault. Forensic evidence from Dr Cala was neutral as to whether she was acting in self-defence, and another witness provided some limited corroboration that the deceased had grabbed her. The proviso was not engaged.

Orders Made

  • Extension of time granted for filing the application for leave to appeal and the notice of appeal.
  • Leave to appeal granted.
  • Conviction appeal upheld.
  • Conviction quashed.
  • Re-trial ordered.
  • Bail granted to the appellant on conditions.

Key Takeaways

  • Where second-hand hearsay evidence of an admission is highly prejudicial to a defendant and there is no rational forensic explanation for the failure to object, both defence counsel's omission and a trial judge's failure to give a limiting direction can each independently constitute material irregularities amounting to a miscarriage of justice.
  • A trial judge retains an obligation to direct the jury on the limited permissible use of highly prejudicial evidence even where no objection has been taken by defence counsel, in order to ensure the fairness of the trial.
  • Under the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), an appellate court must be satisfied beyond reasonable doubt of the appellant's guilt before dismissing an appeal despite a miscarriage. Where the defence case is not glaringly improbable, that threshold will not be met.
  • Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) will be granted to raise an unpreserved ground of appeal where the Court is satisfied the ground discloses a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that rejecting evidence as "glaringly improbable" when applying the proviso is not an usurpation of the jury's function, but the bar is a high one: an appellant's account of self-defence supported by some corroboration and consistent with relevant personal history was not glaringly improbable on the evidence here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10
- Evidence Act 1995 (NSW), ss 32, 38, 56, 59, 60, 81, 82
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
- Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
- Zhou v R [2021] NSWCCA 278
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
- Kaddour v R [2019] NSWCCA 90
- Van Gestel v R [2023] NSWCCA 263