R v Hickson (No. 3)

Counsel for the Crown sought to lead evidence from Jeremy Prangnell who was a partner of Tania Morsman from January 2017 to April 2017. The evidence counsel sought to lead was contained in paragraph 9 of Mr Prangnell’s statement of 4 May 2018. That paragraph reads:

Mr Young SC for the accused objected to the evidence being given. He submitted that the evidence offended the credibility rule in the Evidence Act 1995 (NSW), and that, in any event, it was so vague as not to have probative value. He pointed to the fact that no reference was made to Mr Hickson in the conversation.

The Crown submitted that by a combination of ss 62 and 66(2) the evidence, which was accepted as being hearsay, was admissible. The Crown appeared initially to rely on s 108(3) when I raised the credibility rule in s 102 of the Evidence Act.

I rejected the evidence and said that I would give reasons at a later time. These are my reasons.

The following provisions of the Evidence Act are relevant:

In my opinion, the evidence is not admissible as hearsay because, although the hearsay rule does not apply to evidence of the representation that is given by a person who heard the representation being made, the requirement is that when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. Section 66(2A) sets out three matters which the Court may take into account when considering whether the occurrence of the asserted fact was fresh in the memory of the person. One of those matters is the period of time between the occurrence of the asserted fact and the making of the representation.

The asserted fact in the present matter is the admission said to have been made by Mr Hickson to Ms Morsman both before 22 December 1989 and in the day or days following. The representation now sought to be led was made at some time between January and April 2017.

In the well-known passage from Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61, the joint judgment of Gaudron, Gummow and Hayne JJ said at [4]:

In that case, complaint evidence made six years after the alleged assaults was admitted at the trial. The High Court upheld the appeal against the admission of the complaint.

In my opinion, it cannot be said that the proviso to s 66(2) is satisfied in the present case when the representation was first made some 27 years after the event.

In any event, the evidence sought to be led offends the credibility rule. The issue is whether or not Mr Hickson made the admissions to Ms Morsman. The accused’s position is that Ms Morsman has fabricated her evidence and did so after she was contacted by the police in 2017.

Evidence was led from Ms Morsman both in chief and in cross-examination to the effect that she had told various partners she had been with between 1990 and 2017 of the alleged admissions. The representation she made in that regard to her partners was disputed. However, s 108 has no work to do in the present situation because there is no question of Ms Morsman being re-examined about the timing of the representations she made to her partners in order to meet the attack on her credibility about the alleged fabrication of her evidence after she was contacted by the police. Her evidence is complete.

Section 108(3) speaks of the credibility rule not applying to evidence of a prior consistent statement of a witness if the witness is alleged to have fabricated or re-constructed evidence. Mr Pragnell is not such a witness. Instead, any evidence that he gives about what Ms Morsman said to him in relation to the alleged admissions by Mr Hickson is only evidence designed to prop up the credibility of Ms Morsman. That is credibility evidence within the meaning of s 101A of the Act.

For these reasons I ruled that the evidence from Mr Pragnell was inadmissible.

The Crown sought to lead evidence from Detective Sergeant Sharyn Ciregna. Detective Sergeant Ciregna is put forward as an expert witness in mark evidence and comparison. I rejected that evidence and said I would give reasons at a later time. These are my reasons.

In her report Detective Sergeant Ciregna was asked to:

Evidence had been given by Chief Inspector David Forbes who in December 1989 was a crime scene investigator in the police force. Chief Inspector Forbes gave evidence of observing footprints in blood at the scene of the murder in the deceased’s garage. He said that he observed a number of partial shoe prints.

Detective Sergeant Ciregna was provided with various photographs of the partial shoe prints. She then sought to make comparisons between those partial shoe prints and three shoes of the brand Trax. These shoes were a left, size 4 Trax men’s leather sports shoe, a right, size 7 Trax basketball sports boot and a right Trax men’s Pursuit, the size of which was not specified. Of some significance was the fact that none of these shoes had three stripes on the side.

In relation to the ten images provided to her, Detective Sergeant Ciregna concluded for each of images 1-8 and 10 that there was a limited association of class characteristics between the specified shoes she tested and the relevant image. She referred in each case to the low level detail in the impression preventing a more conclusive determination. She concluded in each such case:

In the information sheet which was appendix A to her report, a conclusion of “Limited association of class characteristics” corresponded with examination findings as follows:

In relation to image 9, Detective Sergeant Ciregna concluded that there were indications of non-association between the left and right Trax Pursuit. She again referred to the low level detail preventing a more conclusive determination, and said that other shoes displaying the same pattern could have made this impression.

The information sheet provided that where the conclusion was “Indications of non-association” the examination findings were these:

Ms Morsman gave the following evidence about the shoes:

In cross-examination she gave this evidence:

The Crown also tendered four photographs where Ms Morsman identified the accused as being shown in those photographs. Three of those four photographs show the accused wearing white runners with three stripes on them.

The Crown submitted that whilst the evidence had certain limitations, it was nevertheless a circumstance which the Crown was entitled to adduce where what had been put to Ms Morsman was that the sneakers disposed of by the accused after the murder were Adidas type shoes.

Mr Young SC submitted that the probative value of the evidence was low and was outweighed by the prejudice to the accused, invoking s 137 of the Evidence Act.

In my opinion, the probative value of the evidence is slight, for the following reasons. First, when asked if the shoes disposed of by the accused were “Adidas type shoes”, Ms Morsman answered, “Yes, Adidas”. Ms Morsman was not asked in re-examination whether the shoes were Adidas shoes or, perhaps, a different brand that looked like Adidas shoes such as Trax. That omission is a little hard to understand when the Crown knew that the testing by Detective Sergeant Ciregna was carried out on Trax shoes alone.

Secondly, there was no testing of Adidas shoes. Rather, testing involved a cheaper brand of shoe called Trax which seemingly looked like Adidas shoes.

Thirdly, there is said to be an admitted difficulty about the dimensions of some or all of the images. Coupled with that is the fact that it was not known what shoe size the accused wore, and the Crown accepted that no such evidence would be given in the Crown case.

Fourthly, the shoes tested were not Trax shoes with three stripes. There is no evidence of the sole pattern on Trax shoes with three stripes.

Fifthly, the conclusions of Detective Sergeant Ciregna are, at best, equivocal. The weakness of the examination findings are clear in the light of its conclusions, namely “limited association of class characteristics” or “Indications of non-association” which were incapable of permitting exclusion. There is the further conclusion that other shoes displaying the same pattern could have made the impression. There is no indication of how many other shoes such a conclusion might embrace.

Notwithstanding any directions that might be given to the jury about this expert evidence, I consider that there is a not insubstantial risk that the jury would attach undue significance to the conclusion in relation to nine of the images that the pattern of the toe area of some of the shoes and the impression correspond. The evidence is vague about whether the accused ever wore Trax shoes, although the better view of Ms Morsman’s evidence is that they were Adidas shoes. I consider that there is danger of unfair prejudice to the accused in that regard in circumstances where the probative value of the evidence is low.

For those reasons I refused to admit the evidence.