R v Ridgeway

Category: Procedural rulings

Parties: Rex (Crown)
Lily Ridgeway (Accused)

Representation: Counsel:
Mr C Young (Crown)
Mr P Krisenthal (Accused)
Solicitors:
Solicitor for the Director for Public Prosecutions (Crown)
Legal Aid Commission NSW (Accused)

File Number(s): 2020/00068218

Publication restriction: Nil.

judgment (REVISED FROM EX TEMPORE)

1. The accused, Lily Ridgeway, is charged with one count of manslaughter. It is alleged that on 29 February 2020 she did, by dangerous and unlawful act, kill Jason Adams. Her trial is currently listed for hearing in the Newcastle Supreme Court for three weeks commencing on 1 September 2025.

2. By notice of motion filed on 10 June 2025, the accused seeks that her trial date be vacated.

3. Regrettably, this matter has had a long procedural history none of which is the fault of the accused. The accused was arrested on 1 March 2020 and charged with murder on that date and refused bail. On 17 May 2021, her trial commenced before Wilson J and a jury sitting in the Supreme Court at Newcastle. On 11 June 2021, the accused was acquitted of Mr Adams' murder. The jury was hung on the alternate count of manslaughter.

4. On Monday, 31 January 2022, a second trial commenced before Wilson J and a jury in the Newcastle Supreme Court. The jury retired to consider its verdict before lunch time on the Friday of that week. On 8 February 2022, the accused was found guilty of manslaughter.

5. On 27 May 2022, the accused was sentenced by Wilson J to a term of imprisonment of 7 years and 7 months with a non-parole period of 5 years to date from 29 November 2020.

6. The accused subsequently appealed her conviction to the Court of Criminal Appeal. On 3 May 2024, her conviction was quashed and a new trial was ordered: see Ridgeway v R [2024] NSW CCA 85. She was subsequently granted bail and has been on bail since that date. On 7 June 2025, her matter was listed for trial on 1 September 2025. As I understand it, the regrettable delay of 15 months was in part a result of the difficulty in obtaining a courtroom in Newcastle before that date.

The Crown case

7. It is not necessary for me to set out the Crown case in any great detail for the purpose of considering this application. Suffice to say that the issues at trial will turn on whether the Crown can establish beyond reasonable doubt that the deceased died as a result of the unlawful and dangerous act of the accused, that is, an intentional act as opposed to the deceased walking into the knife that caused his death. A second matter is whether the partial defence of excessive self-defence has been negated by the Crown.

8. The Crown filed an amended Crown Case Statement yesterday. I have had regard to that and it would seem that, consistent with the last trial before Wilson J, only four witnesses will be called, some statements read, and some exhibits tendered and played. Putting to one side the question of whether the accused might give evidence at this her third trial, the Crown proposes to conduct the trial in the same manner as on the last occasion. If that was to occur, and presuming that the accused did not give evidence, the trial would be completed in less than a week with the only remaining factor being how long the jury would take to deliberate and return a verdict.

The evidence on this application

9. In support of the application to vacate the trial date, the accused relies upon two affidavits: an affidavit affirmed by her on 10 June 2025 and an affidavit affirmed by her solicitor, Robyn Fraser, on 10 June 2025. Those affidavits set out the basis for the application to vacate the trial date.

10. After the matter was listed for trial on 1 September 2025 (which was in June last year) Ms Ridgeway became pregnant and has had a baby. Her son was born on 4 May at John Hunter Hospital three weeks premature and as at the time that she affirmed her affidavit back on 10 June 2025 he was five weeks old. In her affidavit, Ms Ridgeway deposes to how difficult she has found it to be a mother. She lives with her partner who she has been with since 2021. He is the father of their child. He does not work and is available to assist with the child. She lives in a three-bedroom house with her mother. There are a number of other persons living in the house. She, her partner and the baby share a room.

11. The accused also deposes in her affidavit that before she had the baby she was anxious to keep the trial date, and it has only been since having the baby that she has realised that she may have underestimated the impact that event would have on her ability to concentrate.

12. In her affidavit, the accused goes through her daily routine but most significantly, as Mr Krisenthal who appears on her behalf brought to my attention, she sets out the difficulty she has had in concentrating. She deposes that she wakes up to feed the baby at night and that she is sleep deprived. She states:

“… my memory and my emotions are not as good as they should be. I don’t retain information well at the moment, and I find it very hard to concentrate.”

13. The accused goes on to give an example that if she has a long conversation with her partner and she cannot follow what he is saying she asks him to “leave it for now”. Further, she deposes that when she met with her counsel, Mr Krisenthal, she found it “really hard to follow the information and make decisions because [she] was so tired and emotional”. She then goes on to state:

“Emotionally, I feel like I need to do everything because if I don't do it, it won’t get done properly. Such as caring for [her baby] and cleaning around the house.”

14. Finally, she states:

“I feel very drained all the time mentally. Some days I don’t even want to get up. I just can’t catch up on sleep at the moment.”

15. The final subject covered in the accused’s evidence is the prospect that if she was to give evidence, which is clearly a decision that has not been made as yet, she is worried that she “wouldn’t be the best version of [herself] at that time”. She goes on to state: “I would probably break down crying because I’m so tired and emotional.”

16. The affidavit of the accused’s solicitor, Ms Fraser, simply annexes a medical certificate obtained from Dr Rachel Page dated 2 June 2025. Dr Page notes that she works for an organisation known as Awabakal in Hamilton and Ms Ridgeway is a patient there. Dr Page notes in her report that she has been discussing the accused’s mental and physical health. Dr Page then provides this evidence:

“The postpartum period is well evidenced to be a vulnerable time for women mentally and cognitively. I would advise this trial be deferred until at least 6 months after the birth of Lily's child to allow her to physically and mentally recover and be able to fairly stand trial. I have encouraged her to engage regularly with me as her GP and with our mental health support team here in the lead up so that we can continue to assist in her recovery.”

The application

17. The application came on for hearing before me today. Mr Krisenthal appeared for Ms Ridgeway by AVL seated with Ms Ridgeway. Mr Krisenthal clarified that it was not the transport difficulties or other matters referred to as being difficulties in Ms Ridgeway’s affidavit that he relies upon. He clarified that the concern that has led to the application being brought was the accused’s ability to concentrate during her trial.

18. Mr Krisenthal pointed to the expert evidence about the factors that were known to be present in new mothers. He drew attention to those aspects of Ms Ridgeway’s affidavit about not being able to have a long conversation with her partner and about the difficulty she had in conference when the matter was to be discussed.

19. Mr Krisenthal made clear that he brought on this application as soon as he realised in June that Ms Ridgeway was having difficulty concentrating. When I raised with him the possibility that things may improve by September, Mr Krisenthal responded that he considered it preferable to put on the application as soon as possible to avoid any criticism that a late application may give rise to. That approach is completely understandable.

20. Both Mr Krisenthal and the Crown filed written submissions, and at the hearing of this application the Crown relied predominantly on its written submissions. The nub of the Crown’s opposition to the trial being vacated turned on the unfortunate delay thus far, but also a submission that the state of the evidence does not fully give rise to a concern that Ms Ridgeway would not receive a fair trial. Further, it was submitted that it is somewhat unclear on the present evidence what difference two months would make, given that the expert evidence suggests that the trial should be listed when the baby is six months old.

Determination

21. It is well accepted that a decision as to whether to vacate a trial is a discretionary one for the court to make. In exercising that judicial discretion, the court is required to balance a number of competing considerations.

22. Given the lengthy delay since the death of the deceased, there is a strong public interest in the finalisation of this matter. Although none of the delay thus far is the fault of Ms Ridgeway, the fact remains that the delay has been considerable. It is in the interests of the court and the community it serves that this matter be finalised.

23. On the other hand, having read Ms Ridgeway’s affidavit, clearly, being a new mother is something that she is finding difficult. I accept Mr Krisenthal’s submission, based on what is before me, that she is not a person that has considerable supports. Despite this, she does have the support of a partner who is available, and the baby is bottle-fed.

24. I have considered the matters that the accused has raised in her affidavit carefully. Her affidavit discloses that she is finding it difficult to adjust to motherhood and that her memory and emotions are, in her view, not “as good as they should be” and that she finds it “hard to concentrate”.

25. As I raised with Mr Krisenthal, the difficulty is that the state of that evidence pertains to 10 June 2025, when the baby was five weeks old. The trial, which is listed for 1 September, could, on my understanding, be deferred for a number of weeks, which would bring the age of the child up to four and a half months which, it seems to me, is very close to the six months that is the basis of the medical evidence as to when the trial should be listed.

26. To some extent, there is a degree of speculation as to what improvements might take place with regard to Ms Ridgeway’s sleep deprivation and the child growing older.

27. A further matter to have regard to is that, although it is submitted that the trial should be vacated because, as it presently stands, Ms Ridgeway could not receive a fair trial, Mr Krisenthal accepted that the authorities as to what constitutes a fair trial are consistently to the effect that a fair trial is not a perfect trial. In Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36 at [115], Steward J noted:

“It is well established that a fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.”

28. Similar principles have been stated in Jarvie v The Magistrates*’* Court of Victoria at Brunswick [1995] 1 VR 84 at 90 and, more recently in the High Court, McNamara v The King (2023) 98 ALJR 1; [2023] HCA 36 at [42] and GL**J v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [121].

29. The unfairness alleged is that, if in September Ms Ridgeway has not had enough sleep, she may not be able to concentrate during the trial.

30. In light of the evidence before me and the principles to which I have just referred, I am not satisfied that there are no steps that can be taken such that it would not be possible for Ms Ridgeway to receive a fair trial. What I am able to do and am able to propose is that the trial starts three weeks later.

31. If that was to be the case, Ms Ridgeway’s baby would be nearly five months old and, as I have previously stated, I am not satisfied that the difference between the baby being nearly five months old as opposed to being six months old, when it is suggested she could obtain a fair trial, is such that this trial date should be vacated.

32. Accordingly, I would vacate the trial date of 1 September 2025 and instead order that the trial commence on 22 September 2025 with an estimate of two weeks.

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