R v Hickson (No. 1)

1. [1]

   The accused is charged with murdering Charles Carlton Skarratt on 21 or 22 December 1989. The deceased was attacked in the garage of his home in Woolwich. He received blunt force injuries and a number of stab wounds. The forensic pathologist said that the direct cause of the deceased’s death was the combined effects of stab wounds and multiple blunt force injuries.

2. [2]

   The body of the deceased was found lying face up on the garage floor with his arms outstretched. The deceased was wearing a brown, suede, leather jacket which had been pulled up over his head. He was also wearing a green cardigan jumper and a light pink coloured shirt. Both had been pulled up from the normal wearing position. His trouser belt was missing and the trousers were undone or torn away at the fly. The trouser belt was bound around the ankles of the deceased, and the deceased’s head had black electrical tape over the bridge of the nose and mouth.

3. [3]

   There were drag marks in blood and partial footprints in blood about the head and shoulders of the deceased.

4. [4]

   The Crown has formulated its case on alternative bases:

5. [5]

   By notice of motion filed 6 November 2019 the accused relevantly seeks the following orders:

Joint criminal enterprise

1. [6]

   In support of the case based on joint criminal enterprise the Crown relies on what are said to be:

2. [7]

   The relevant test is set out in Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 at 214-215 as follows:

3. [8]

   As the High Court pointed out in The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 at [89], that test stands in contrast to the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 that is applied in the determination of whether a verdict is unreasonable or unsafe and unsatisfactory. The High Court described the test in M v The Queen as being the more stringent standard of review and was compared to the “lesser standard identified in Doney” (at [90]).

4. [9]

   In Sever v The Queen [2010] NSWCCA 135 McClellan CJ at CL (with whom Latham and Schmidt JJ agreed) said at [44]:

5. [10]

   The relevant evidence of Tania Morsman appears in the following portions of her statement of 19 June 2018:

6. [11]

   The evidence of Robert Hamilton is in the following paragraphs of his statement of 5 June 2018:

7. [12]

   The evidence of Michael Cross is found in the following paragraphs of his statement of 7 June 2018:

8. [13]

   Mr Young SC for the accused sought to rely on what was said by Latham J in Sever v R. Her Honour said:

9. [14]

   Her Honour did not suggest that it was not appropriate for the Crown to have opened the case in the alternative as one based on a joint criminal enterprise. Indeed, her Honour expressly agreed (at [142]) with the reasons of McClellan CJ at CL. At best, her Honour was suggesting that after the Crown had closed its case a no case submission was more than arguable.

10. [15]

    Similarly, Mr Young relied on what was said by McClellan CJ at CL in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21, a case where it was suggested that in the alternative the accused was guilty by a joint criminal enterprise between him and an unidentified man in throwing the deceased in that case off the Gap.

11. [16]

    McClellan CJ at CL said at [670]-[671]:

12. [17]

    The first ground of appeal in Cooper v The Queen [2011] NSWCCA 258; (2011) 215 A Crim R 149 asserted that the trial judge ought not to have left joint criminal enterprise to the jury. It is, therefore closer to, but not the same as, the issue presently being determined; namely, whether the Crown should be permitted to open the case to the jury on that basis. (Cooper was overturned in the High Court but without casting doubt on the correctness of what follows: see Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 at [4]). Justice Beazley (Hidden and R A Hulme JJ agreeing) said:

13. [18]

    However, the position is otherwise in the present case. The evidence in the statement of Tania Morsman is sufficient alone to justify permitting the Crown to open the case on the basis of a joint criminal enterprise. While the defence case will be that the admissions were never made by the accused, that is ultimately a matter for the jury after all of the evidence has been led. I accept that the form of the evidence as contained in Ms Morsman’s statement might prompt some objections if it is given in that form, but I am satisfied that sufficient of it is admissible to satisfy the relatively low threshold required by Doney.

14. [19]

    There is also the evidence in Mr Hamilton’s statement. I accept that there may be admissibility issues in relation to paragraphs 34 and 36 of Mr Hamilton’s statement. Nevertheless, what is contained in paragraph 27 of that statement seems to me, prima facie, to be admissible and refers to a statement by the accused that “we did a robbery”.

15. [20]

    The evidence in Michael Cross’s statement is only probative (to the extent it is admissible) of the accused being involved in the robbery. I do not place reliance on that evidence to support the view to which I have otherwise come that there is sufficient evidence to justify the Crown opening on the basis of a joint criminal enterprise.

16. [21]

    Unlike the position in Sever and Wood, the evidence in the present case is not silent as to the existence and involvement of another person. Unlike Cooper, there is evidence of an arrangement. The person is identified, and the admissions made by the accused show that the other person was involved although precisely the extent of that involvement remains unclear. I note that the evidence tends to suggest he was paid $5,000 for his involvement.

17. [22]

    As noted earlier, the Crown seeks also to rely on inferences from the forensic evidence and the state of the crime scene to suggest that a second person must have been involved. This is said to arise from the matters set out at [2] and [3] above. It is not necessary at this stage to say anything more about those matters because the Crown does not intend to open in relation to them. If any evidence is referred to in the opening in relation to the joint criminal enterprise it will be confined to the evidence in the statements to which I have already made reference. Whether the Crown should be permitted in final address to submit that those inferences should be drawn by the jury will need to be determined before the parties address, in the light of all of the evidence in the matter.

18. [23]

    I decline to prevent the Crown from opening the case in the alternative as a joint criminal enterprise.

Visit to Dr Kalokerinos

1. [24]

   The Medicare records in relation to the accused contain an entry on 22 December 1989 for an item 00023 visit to Dr Kalokerinos. No further information about the consultation is available. Dr Kalokerinos died in 2000 or 2001.

2. [25]

   Dr Kalokerinos’ son, Nicholas, worked as a doctor in the practice during the 1990s. He said that when he retired in 2007 the medical records from the practice were all destroyed some seven years later. He was only contacted in 2017.

3. [26]

   He has provided a statement about his father’s system of itemising consultations for Medicare purposes. His statement relevantly reads:

4. [27]

   In her statement, Tania Morsman says at paragraph 53:

5. [28]

   The Crown submits that the whole of the Crown case is a circumstantial one and that the evidence of Tania Morsman about the cut on the hand means that evidence of the visit to Dr Kalokerinos on 22 December 1989 is a relevant circumstance. The Crown seeks to link the cut on the hand to blood found on a sock worn by the deceased at the time he was killed. The accused’s DNA profile matched the DNA taken from the blood in that sock.

6. [29]

   Paragraph 53 in Ms Morsman’s statement is the extent of the evidence concerning any injury to the accused. No person gives evidence concerning him attending a doctor.

7. [30]

   Even if it is accepted that the blood on the deceased’s sock was the blood of the accused, that would say very little in support of the proposed Crown case, even taking into account the evidence that the accused had a cut on his hand, that it was an injury sustained in the attack on the deceased which required him to attend the doctor’s surgery on 22 December. In my opinion it would be entirely speculative for the jury to conclude that the accused attended because of an injury he obtained whilst involved in the robbery and killing. The Medicare item number is of no assistance.

8. [31]

   The medical records indicate that the accused was attending Dr Kalokerinos in the weeks and months surrounding 22 December 1989. I was informed that one reason for that was that the accused was serving a sentence of periodic detention, and had obtained a number of medical certificates from Dr Kalokerinos to justify his non-attendance at the prison where he was serving his sentence. The admission of the evidence of the visit to Dr Kalokerinos on 22 December might require the accused to disclose the reason for those attendances and, accordingly, the sentence that he was serving at the time. That would certainly be prejudicial to the accused. If that situation arises consideration will need to be given to s 137 of the Evidence Act 1995 (NSW).

9. [32]

   As the evidence currently stands, I do not consider that evidence of the visit to Dr Kalokerinos on 22 December 1989 is relevant and admissible.

10. [33]

    The Crown indicated that it would not open the case by referring to the visit to Dr Kalokerinos. That indication was properly made. The views I have expressed do not foreclose the issue of the admissibility of the evidence of the visit if there is additional evidence given during the trial. However, if the evidence remains as limited as I have set out earlier, I would not permit evidence of the doctor’s visit to be adduced.