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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: Court of Criminal Appeal
Date: 31 May 2024
Judge(s): Stern JA, Rothman J, Yehia J

Background

The appellant was convicted of manslaughter in February 2022 following a fatal stabbing in the early hours of 29 February 2020. She stabbed the deceased once in the left chest outside a residential property, killing him. She was sentenced to 7 years and 7 months imprisonment with a non-parole period of 5 years.

The appellant's defence at trial was that the stabbing was either accidental or was carried out in self-defence or in defence of a third party, Ms Hanson. The appellant did not give evidence, but her recorded police interview was tendered. She described going into "survival mode" after the deceased grabbed her, believing he was armed.

The central issue on appeal concerned a statement Ms Hanson made to police on 10 March 2020, in which she recorded that the appellant had said "It felt so good" shortly after the stabbing. Ms Hanson denied in her oral evidence that the appellant had in fact said those words. Despite this, the statement was admitted at trial without objection by defence counsel and without any judicial direction limiting the purpose for which the jury could use it.

Legal Issues

  • Whether the failure of defence counsel to object to the hearsay use of the 10 March 2020 Statement, or to seek a limiting direction, constituted a material irregularity amounting to a miscarriage of justice
  • Whether the trial judge independently bore an obligation to direct the jury on the limited use that could be made of the 10 March 2020 Statement, notwithstanding the absence of any objection by counsel
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied, on the basis that the appellant's version of events was glaringly improbable, such that no substantial miscarriage of justice occurred

Decision

Ground 1(a): Failure of trial counsel to object

The Court found that the 10 March 2020 Statement, in which Ms Hanson told police the appellant said "It felt so good," was admissible at trial only as a prior inconsistent statement going to Ms Hanson's credibility. The Crown accepted on appeal that, had objection been taken, the statement could not have been used for a hearsay purpose to prove that the appellant actually made the admission (at [11], [71]). Under the prevailing NSW approach, the hearsay rule in s 59 of the Evidence Act 1995 (NSW) only applies to evidence to which objection is taken, so the absence of any objection meant the evidence went in without restriction (at [77]).

The Court was satisfied that the second-hand hearsay evidence was highly prejudicial and likely to have had a significant impact on the jury's assessment of guilt (at [17]). Objectively assessed, there was no rational forensic basis for counsel's failure to object or seek a limiting direction: the evidence was plainly significant, the jury asked specific questions about it before closing addresses, and the Crown used it prominently in its closing (at [18]). The failure was one of inadvertence. Because no competent counsel could have concluded there was a forensic advantage in not objecting, the omission constituted a material irregularity resulting in a miscarriage of justice (at [79]).

Ground 1(b): Obligation on the trial judge

Even absent an objection by defence counsel, the Court found that the trial judge bore an independent obligation to ensure trial fairness (at [81]). The evidence was second-hand hearsay of an admission that would not have been admissible for a hearsay purpose had objection been taken, it was highly prejudicial, and there was objectively no forensic explanation for the absence of any objection. In these unusual circumstances, the trial judge was required to give a direction limiting the use the jury could make of the 10 March 2020 Statement. The failure to do so was itself a further basis on which a miscarriage of justice was established (at [81]).

Proviso: Whether the conviction should stand notwithstanding the miscarriage

The Crown argued that the proviso should be applied because the appellant's account was glaringly improbable. The Court rejected that submission. Applying Hofer v The Queen (2021) 274 CLR 351, the Court was not satisfied beyond reasonable doubt of the appellant's guilt (at [83]). The forensic pathologist's evidence was neutral on the question of self-defence. The appellant's account of going into "survival mode" was not glaringly improbable given her history of being subjected to serious domestic violence, including a recent violent assault approximately one month before the stabbing (at [83]). Some limited corroboration existed in a co-witness's statement. The proviso was therefore not engaged, and the appeal was upheld (at [84]).

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
  • Matter listed in the next arraignment list for mention on 7 June 2024
  • Bail granted to the appellant on conditions following a hearing on 3 May 2024

Key Takeaways

  • Where defence counsel fails to object to the hearsay use of a prior inconsistent statement for no rational forensic reason, that failure can constitute a material irregularity resulting in a miscarriage of justice, even where the failure is one of inadvertence rather than any deliberate forensic choice (at [79]).

  • A trial judge retains an independent obligation to ensure trial fairness. In unusual circumstances, including where second-hand hearsay evidence of an admission is highly prejudicial and there is objectively no forensic explanation for counsel's failure to object, that obligation may require the judge to give a limiting direction even without any application from counsel (at [81]).

  • Under the prevailing NSW approach confirmed in Van Gestel v R [2023] NSWCCA 263, the hearsay rule in s 59 of the Evidence Act 1995 (NSW) operates only where objection is taken; the absence of objection does not render inadmissible evidence automatically excluded, which underscores the significance of the failure to object in this case (at [77]).

  • The proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) will not apply to cure a miscarriage of justice where the appellate court cannot be satisfied beyond reasonable doubt of the appellant's guilt, and where the defence account, including a claim of "survival mode" arising from a documented history of domestic violence, was not glaringly improbable (at [83]-[84]).

  • In assessing whether a defence version is "glaringly improbable" for proviso purposes, the Court of Criminal Appeal applied the High Court's framework in Hofer v The Queen, which permits an appellate court to reject glaringly improbable evidence without usurping the jury's function, but does not permit rejection merely because the account is contested or faces reliability difficulties (at [82]-[83]).

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