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[2024] NSWCCA 85
Court of Criminal Appeal (NSW)
2024-05-31
Stern JA, Rothman J, Yehia J.
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ridgeway v R [2024] NSWCCA 85
3 May 2024
Date of orders: 3 May 2024
Decision date: 31 May 2024
Before: Stern JA, Rothman J, Yehia J.
Decision: 1. Extension of time to be granted for filing the application for leave to appeal and the notice of appeal.
2. Grant leave to appeal.
3. Uphold the conviction appeal.
4. Conviction shall be quashed.
5. Order that there be a re-trial.
6. Matter will be listed in the next arraignment list for mention on 7 June 2024.
7. List the proposed application for bail for 2:45pm today, the 3rd of May 2024.
Catchwords: CRIME – appeals – appeals against conviction – miscarriage of justice – manslaughter – second-hand hearsay evidence of an admission – where no objection taken to admissibility – where no direction limiting use sought by defence counsel – whether to grant leave under Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 – where evidence highly prejudicial to defendant – where no rational forensic explanation for lack of objection – material irregularity – miscarriage of justice established
CRIME – appeals – appeals against conviction – application of proviso – defence at trial not glaringly improbable – substantial miscarriage of justice occurred – proviso not engaged
Legislation Cited: 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 Cited: 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
Category: Principal judgment
Parties: Lily Ridgeway (Applicant)
Rex (Respondent)
Representation: Counsel:
S J Odgers SC (Applicant)
G Newton SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2020/68218
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 29 February 2020 the applicant, Lily Ridgeway, stabbed Jason Adams in the left chest causing his death. The stabbing occurred outside the house where Nikita Hanson, who was present at the time of the stabbing, was living. The applicant’s defence at trial was twofold. First, that the stabbing was accidental. Second, in the alternative, that it was in self-defence.
In a statement made to police on 10 March 2020, Ms Hanson had said that very shortly after the stabbing the applicant had said the words “It felt so good” (the “10 March 2020 Statement”). At trial, Ms Hanson accepted that she had told the police that the applicant had said those words but denied that the applicant had in fact said those words shortly after the stabbing or at all. At trial, counsel for the applicant did not object to the 10 March 2020 Statement being admitted for a hearsay purpose or seek a direction from the trial judge limiting its use by the jury, and the 10 March 2020 Statement was admitted at trial without any limitation or direction limiting its use from the trial judge.
Had objection been taken to the 10 March 2020 Statement it would not have been admissible for a hearsay purpose.
The jury found the applicant guilty of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
The applicant sought to leave to appeal against her conviction on the ground that a miscarriage of justice resulted from the use of the evidence that the applicant said “It felt so good” as an admission. As no objection was taken at trial to the admissibility or use for a hearsay purpose of that evidence, the applicant required leave to rely upon that ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Crown contended that the appeal should be dismissed in reliance upon the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).
At the conclusion of the hearing of the appeal, the Court was satisfied that there had been a miscarriage of justice and granted leave under r 4.15. The Court made orders granting an extension of time, granted leave to appeal, upheld the appeal against conviction, quashed the applicant’s conviction and ordered a re-trial. These are the reasons for those orders.
The applicant also sought leave to appeal against her sentence. Given that the appeal against conviction was allowed, it was unnecessary to consider the proposed appeal against sentence.
The appeal against conviction raised two issues:
(i) Whether a miscarriage of justice occurred; and
(ii) Whether the proviso in s 6(1) of the Criminal Appeal Act applied such that the appeal should have been dismissed.
The Court (Stern JA, Rothman J, Yehia J) granting leave to appeal, allowing the appeal against conviction:
As to issue (i*):*
(1) There was no rational forensic explanation for the failure of counsel to object to the admission or use of the 10 March 2020 Statement for a hearsay purpose or to have sought a direction limiting its use. Had an objection been made, the evidence would not have been admissible for a hearsay purpose. Given how prejudicial this evidence was, and the significance of the evidence, the omission of counsel was a material irregularity resulting in a miscarriage of justice: [17], [18], [79].
(2) It was incumbent on the trial judge to take steps to ensure the fairness of the trial. Fairness required that a direction be given to the jury by the trial judge limiting the use that they could make of the 10 March 2020 Statement. This is so even though, objection not having been taken, the evidence would not been inadmissible. The evidence was second-hand hearsay evidence of an admission by the applicant, was highly prejudicial to the applicant, and objectively there was no forensic explanation for the failure of counsel to object: [81].
(3) Both the failure of counsel to object to the admissibility or use of the 10 March 2020 Statement for a hearsay purpose, and the failure of the trial judge to give the jury a direction limiting the use of that evidence, were material irregularities which led to a miscarriage of justice: [78].
Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89, Zhou v R [2021] NSWCCA 278, HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 applied.
As to issue (ii)
(4) The task of an appellate court when considering the proviso is to determine whether it is itself satisfied of an appellant’s guilt beyond reasonable doubt. Where it is apparent to an appellate court that the evidence of a witness is “glaringly improbable” the appellate court is not usurping the function of the jury in rejecting the evidence: [82].
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied.
(5) The proviso was not engaged. The applicant did not give a glaringly improbable version of events that was incapable of acceptance. Having regard to the evidence in the applicant’s trial, it did not establish beyond a reasonable doubt that the applicant did not believe that she had to act as she did in her own defence or that her response was not a reasonable response in the circumstances as she perceived them to be: [83]-[84].
“1. A miscarriage of justice resulted from use of the evidence that the appellant said ‘It felt so good’ as an admission.
2. The sentencing judge erred in failing to take into account the significance of the COVID-19 pandemic.”
“a. Appeal against conviction allowed;
b. The conviction and sentence are quashed;
c. Matter remitted for re-trial.”
To the extent that the applicant’s sole ground of appeal against her conviction did not involve a question of law alone, she required leave to appeal. She also required leave to appeal against her sentence: Criminal Appeal Act 1912 (NSW), s 5(1). She required an extension of time for filing her notice of appeal and application for leave to appeal: Criminal Appeal Act*,* s 10. Given the strength of the applicant’s first ground of appeal against her sentence, an extension of time and leave to appeal was granted. As the appeal against conviction was upheld, it was unnecessary to consider the proposed appeal against sentence.
Further, as no objection was taken at trial to the admissibility or use for a hearsay purpose of the evidence relied upon in ground 1 of the notice of appeal, the applicant required leave to rely upon that ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“Rule 4.15”). Given that the Court was satisfied that the matters raised in ground 1 of the notice of appeal constituted a miscarriage of justice, leave under Rule 4.15 was granted: see eg Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] (Bathurst CJ, Leeming JA, R A Hulme, Hamill and N Adams JJ agreeing).
At the conclusion of the hearing of this appeal on 3 May 2024 this Court made the following orders:
“1. Extension of time to be granted for filing the application for leave to appeal and the notice of appeal.
- Grant leave to appeal.
- Uphold the conviction appeal.
- Conviction shall be quashed.
- Order that there be a re-trial.
- Matter will be listed in the next arraignment list for mention on 7 June 2024.
- List the proposed application for bail for 2:15pm today, the 3rd of May 2024.”
By way of background, it is uncontroversial that at about 5:20am on 29 February 2020 the applicant stabbed Jason Adams (the “deceased”) in the left chest. The stabbing occurred just outside the house where Nikita Hanson, who was present in the house at the time of the stabbing, was living. The applicant did not give evidence at trial. Her defence at trial was twofold. First, that the stabbing was accidental, and it occurred when the deceased advanced towards her when she was holding a knife. Second, in the alternative, she relied upon self-defence and defence of Ms Hanson.
The key matter relied upon in ground 1 of the notice of appeal was the admission at trial, without any limitation or direction from the trial judge as to use, of evidence that in a statement made to police on 10 March 2020, Ms Hanson said that very shortly after the stabbing the applicant had said the words:
“It felt so good”.
For convenience, in this judgment we will sometimes describe Ms Hanson’s evidence that the applicant said these words as the “10 March 2020 Statement”.
As set out below, at trial, Ms Hanson accepted that on 10 March 2020 she had told police that the applicant had said those words, but she denied that the applicant had in fact said those words shortly after the stabbing or at all.
There was no dispute on appeal that the 10 March 2020 Statement was admissible on the issue of Ms Hanson’s credibility, as a prior inconsistent statement. However, as accepted by the Crown on appeal, if objection had been taken, the 10 March 2020 Statement would not have been admissible for a hearsay purpose (subject to one contention which the Crown made in its written submissions relying upon s 81(2) of the Evidence Act 199**5 (NSW), discussed below).
At trial counsel for the applicant, Ms McLaughlin, did not object to the 10 March 2020 Statement being admitted for a hearsay purpose. Nor did she seek any direction from the trial judge limiting its use by the jury. In an affidavit affirmed on 12 February 2024 she explained this on the basis of mere inadvertence:
“The absence of any objection was not for any forensic or tactical reason. From what I can remember, I do not recall turning my mind to a potential second-hand hearsay issue.”
As set out below, there is an issue as to the admissibility of that affidavit on the issue of miscarriage of justice, as opposed to on the question whether leave should be granted under Rule 4.15. That issue is discussed below.
The applicant contended that a miscarriage of justice arose in the circumstances on two, alternative bases. First, that the failure of the applicant’s counsel at trial to object to a hearsay use of the 10 March 2020 Statement or to seek a direction limiting the use of that evidence led to a miscarriage of justice. Second, notwithstanding that failure, that the trial judge nonetheless had an obligation to ensure that the applicant had a fair trial, which required her Honour to make enquiry of defence counsel to see if a direction should be given and perhaps in any event to consider giving a hearsay warning. The failure of the trial judge to take any such step resulted in a miscarriage of justice. Implicit in this second basis upon which it was alleged a miscarriage occurred was that counsel for the applicant at trial would, had enquiry been made, have either objected to a hearsay use of the 10 March 2020 Statement or sought a direction limiting its use.
In either case, the applicant contended that the unrestricted use which the jury was able to make of the 10 March 2020 Statement was an irregularity which was “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing) affirmed in HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2] (Gageler CJ, Gleeson and Jagot JJ).
It is convenient to deal with two matters at the outset.
First, in our judgment, there is no question that the second-hand hearsay evidence in the 10 March 2020 Statement is highly prejudicial evidence which was likely to have had a significant impact upon the jury’s assessment of the applicant’s guilt. We are entirely satisfied that the failure to object or seek a direction limiting the use of that evidence was capable of affecting the result at trial.
Second, there is also no question that, objectively assessed, there was no rational forensic basis for the applicant’s counsel at trial not to object to the use of the 10 March 2020 Statement for a hearsay purpose, or to seek a direction from the trial judge limiting the use that could be made of it. The evidence was plainly significant and, as is clear from the matters set out below, was treated as such at trial. Ms Hanson was cross-examined at some length as to whether or not she was being truthful when she said the applicant did not in fact say those words to her. Moreover, prior to closing addresses, the jury asked two questions relating to the 10 March 2020 Statement, including a specific question asking what use could be made of this evidence. It was then given some prominence in the Crown’s closing address. Thus, this is not a situation where, objectively, a failure to object or to seek a direction could be explicable on the basis of a forensic decision not to draw attention to the evidence. In any event, it is so prejudicial that we are satisfied that, objectively, counsel could not have determined that that was a forensic advantage to be gained, or a forensic disadvantage to be avoided, by not objecting to the admissibility or use of the 10 March 2020 Statement for a hearsay purpose or seeking a direction limiting its use. We are also satisfied that, if enquiry had been made by the trial judge, counsel would have objected to the use of the 10 March 2020 Statement for a hearsay purpose or have sought a direction limiting its use.
Thus, irrespective of what Ms McLaughlin said in her affidavit affirmed on 12 February 2024, this is a case where objectively there was no forensic basis not to object to the use of the evidence as hearsay or to have asked for a direction limiting its use: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [27] (Gaudron J, Gummow J agreeing) at [107] (Hayne J, Gummow J agreeing); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [25] (Hayne J, McHugh J agreeing); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]-[10] (Gleeson CJ) at [27] (Gummow and Hayne JJ). This was not a matter upon which competent counsel could have had differing views: TKWJ v The Queen at [81] (McHugh J).
In these circumstances, it is unnecessary to determine whether the affidavit of Ms McLaughlin was admissible on the question of miscarriage. It is sufficient to observe that the Crown accepted that it was admissible on the question of leave under Rule 4.15: Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [85]-[95] (McCallum JA, Wilson and Cavanagh JJ agreeing).
It is thus necessary to address only two matters in this judgment. First, whether there was a material irregularity at trial such that a miscarriage of justice occurred. As to this, Senior Counsel for the Crown conceded at the hearing of the appeal that if the Court found, objectively, that “this was an omission and an oversight” then, provided that the Court found the 10 March 2020 Statement to be “significant based on the closing addresses and the summing-up, then we would be into the proviso”. In the light of this concession, it is only necessary to address the question of material irregularity briefly.
Second, did the proviso in s 6(1) of the Criminal Appeal Act apply such that the appeal should have been dismissed. The Crown contended that this was a case in which the applicant’s defence at trial was glaringly improbable such that the proviso was engaged and the appeal should have been dismissed.
Before turning to these matters, it is necessary to set out some of the factual background. The following is not intended as a comprehensive summary of the evidence at trial. Rather, it is intended as an overview of matters of particular significance given the issues on appeal.
Ms Hanson had allowed the deceased to use her address for the purposes of bail and on 26 February 2020 he was granted bail with conditions that required him to reside at her home. The relationship between Ms Hanson and the deceased then deteriorated and on the evening of 28 February 2020, Ms Hanson evicted the deceased from the house with the assistance of the applicant, the applicant’s relative Mark Russell and Adam Garvey. On at least one occasion later that evening the deceased returned to the house and collected some of his possessions, without any altercation. There were a large number of acrimonious SMS messages between Ms Hanson and the deceased throughout the night. These became increasingly heated. At 4:52am, the deceased texted Ms Hanson:
“U dumb bitch I have kept my cool let you speak all the words u want
…
Now I’m pissed now we will turn it on see you soon trust me”.
“Get ya crew there now I’m on my way”.
“Look down ya st now
Who’s first”.
The deceased was then seen approaching the house. The applicant exited the house armed with a black knife that was approximately 15 centimetres long. Mr Russell, also exited the house but Ms Hanson remained in the house (although as discussed below there was some conflicting evidence as to whether Ms Hanson was outside). The applicant and the deceased were then at the front of the house together, with Mr Russell also somewhere in the vicinity. The applicant stabbed the deceased once. The knife penetrated the deceased’s heart causing his death.
The deceased was not armed during the altercation that culminated in the stabbing.
The Crown case was that the applicant deliberately stabbed the deceased in the chest and that this act was from hostility and not from any perception of danger. As set out above, the applicant’s case was that the stabbing was accidental, or alternatively that she acted in self-defence or in defence of Ms Hanson.
The applicant did not give evidence at trial, but the transcript of her interview with police on 2 March 2020 was admitted into evidence. She told police during that interview that she was aware of messages sent by the deceased in the early hours of 29 February 2020, that these were threatening messages and that she then heard the deceased yelling from the front lawn.
As to the stabbing itself, the applicant’s evidence in that interview was that the deceased “spotted” her on the veranda and said “you slut”, “You took my woman” and “You want to bring it on? You want to bring it on? You want to be a mad cunt? Then come on, bring it on”. He then came “up the stairs of the house of the veranda”. She could see a phone in one hand and something else in his other hand. She said that the deceased kept calling her a “slut”. She said she “walked down the stairs” and “met him halfway” and said “Just fuck off bud, you know, you’ve fucking been coming here causing arguments all night. Just give us a fucking rest.” She said he “stepped up at me and, like he grabbed, he, he stood up at me because I was above him on the stairs” she said he grabbed her and she “remembered pushing him” and then she “black[ed] out”. She later said when he grabbed her she could see “the phone there” and “the shine off something in his other hand”. She said in one hand the deceased had “the fucking shiny thing in it”, that his “Right hand is on the shiny thing” and she thought it was a knife. The applicant said that he grabbed her with his left hand which was holding the phone. She said she “blacked out when he touched me” and went into “survival mode” because of everything her ex-partner had put her through and because “every day was a matter of life and death”. She said:
“I thought I was going to get stabbed and I just, like I said, I went into survival mode … I just, I blacked out. I black out when I gone into survival mode. I can’t tell you what happens in that mode.”
“Q448 OK. So you, you think you defended yourself because you’re of the opinion you were going to get stabbed.
A Yeah, I’m fucking automatic, you know. Everything my ex put me through automatically.
…
Q467 OK. So you, you’re saying its self-defence.
A Yeah.
Q468 Yeah. And you’re saying that because you believe he was going to stab you.
A Yeah.
Q469 Um - - -
A If it wasn’t me it would have been him.
Q470: Yeah.
A If it wasn’t him it would have been me, you know.”
The applicant said she grabbed the knife “to stand the door with” and that she “didn’t have intentions of going out there killing anyone or fucking stabbing anyone. I just held it there because, you know, there’s two women in the fucking house and I’m worried. There’s a man outside going off his cunt”, that she just had it “to protect myself”, and that she “didn’t know what was going to go on when I walked out the door. I didn’t know, have any intentions of hurting him unless he hurt me, you know, like, to protect myself and that’s, yeah, it was just an accident”. When asked “when you’re saying an accident…What’s happened exactly” she said “I couldn’t tell you, I blacked out. I just, I don’t remember anything from when he grabbed me”.
The applicant said she regained her memory when she saw “he was bleeding” “in the street” and she was “in the street not far from him”. She then ran from the scene. Ms Hanson called a taxi for her. The applicant hid in bushland, discarding the knife and her jacket. She called her mother who picked her up and took her to a hotel. She was arrested there two days later.
It was an agreed fact at trial that in 2018 the applicant had been in a relationship with Mr Colin Glass during which she was subject to a very serious assault by him on 2 April 2018, leading to a conviction of Mr Glass for assault occasioning actual bodily harm. This followed incidents in which the police had been called, the applicant had admitted to having an extreme fear of Mr Glass, and two ADVOs had been made for the protection of the applicant from Mr Glass. It was also an agreed fact that in 2020, the applicant was in a domestic relationship with Mr Damon Howard and on 28 January 2020 (approximately one month before the stabbing of Mr Adams) she was subject to two serious assaults by Mr Howard, for which he was convicted.
Ms Hanson’s evidence at trial, when asked what movements she saw, was:
“She was standing in front of him holding the knife, but – and [the deceased] was leaning towards her, moving towards her because he just kept saying, ‘Are you going to stab me’, like ‘stab me’, yeah, so he was walking towards her and the knife went into him.”
“She was just holding it. I didn’t see any movement. There wasn’t a movement with her arm. I just, yeah I just see the knife go into him. I can’t really explain any movements of her arm, sorry.”
There was evidence at trial from Dr Cala, a forensic pathologist. He said that it was possible for the deceased to have walked onto the knife, but that he favoured some forward thrusting would also have had to have occurred for the knife to enter the deceased’s body in the way that it did.
There was evidence at trial that the applicant did not mention that she thought that the deceased may have had a knife in accounts she gave to Haylee Ridgeway and James Carmody on 29 February and 1 March 2020. There was also evidence from neighbours that the male voice they heard in the street around the time of the stabbing was not yelling and was not as loud as the female voice, or was calm, although one neighbour, Naomi Green, gave evidence that she heard an argument and another, Skye Dendle, said that she heard the voices of two males, and heard a male swearing.
A statement from Mr Russell was also read to the jury. Mr Russell was with the applicant and Ms Hanson in the period leading up to the stabbing. There were significant aspects of that statement that were inconsistent with accounts of the applicant and Ms Hanson. His evidence was that both the applicant and Ms Hanson were outside with the deceased at the time of the stabbing. Mr Russell said that he saw the deceased move towards both women and:
“During this it looked like he grabbed at [the applicant’s] arms with his hands. I honestly thought he was going to attack her.”
“5 I am making this additional statement as I feel I need to inform the police of a significant comment that Lily RIDGEWAY made after she stabbed Jason ADAMS. The reason I failed to notify police originally is that it really traumatised me. I had to speak to my psychologist Cheryl Collier about it as I was distressed by the comment. I also told Nicole HEDLEY about it on the day that Jason was stabbed.
6 When I was standing at the front door of 3 Payton Street, Raymond Terrace, I observed Lily running back towards the house after I just seen her stab Jason. She was still carrying the knife in her right hand. Lily walked past me at the front door and as she entered the house she said, ‘Oh babe, you should’ve felt that. It felt so good’. She then ran past me and into the kitchen of the house. When Lily made the comment I knew she was referring to stabbing Jason. The comment made me so distressed that I vomited in the front yard.”
“Q. So, is it correct then, as you’ve put in the statement on 10 March 2020 that you signed subject to that declaration that it was true, that what Lily actually said as she walked up the stairs was - sorry, as she walked past you up the stairs, what she actually said was ‘Oh babe, you should’ve felt that. It felt so good’? Is that what she actually said?
A. No. She didn’t add ‘It felt so good’. I think as I was speaking my statement, it’s hard to speak a statement and write it.”
“Q. But what, now you deny that that’s what she actually said?
A. I’m denying that ‘It felt so good’ on the end of it was what she said; yes, I am.
Q. Ms Hanson, isn’t the truth what’s recorded in this statement?
A. Yes.
Q. That what she actually said was, ‘Oh babe, you should’ve felt that. It felt so good’?
A. No.
Q. How did that come to be in the statement then?
A. It was spoke - it was expressed, so I don’t even know how to explain that. When you’re trying to explain something to someone that wasn’t there, and can’t - yeah, it was really - yeah, it was really - it was just confronting and it was added, yeah, it was just added, that what she said was, ‘Oh babe, you should’ve felt that’ but it wasn’t added - she never said, ‘It felt so good’. That, she never said that, that’s not what she said.
…
A. The first bit of what that sentence says, yes, but not the end of it, not the four last words but--
Q. But you accept that in quotation marks in that statement that you signed on 10 March 2020--
A. Mm-hmm.
Q. --some 10 days after this incident, what’s in that statement, contained in quotation marks, as far as what Lily Ridgeway said, is the words, ‘Oh babe, you should’ve felt that. It felt so good’?
A. Yeah.
Q. So, you accept that’s the statement you signed on 10 March?
A. I accept that that’s the statement that I signed on 10th.
Q. That direct quote, as far as Ms Lily Ridgeway’s speech?
A. The first bit of it, not the last four words.”
“Q. She said exactly what was recorded in that 10 March 2020 statement as well, didn’t she, ‘Oh babe, you should’ve felt that. It felt so good’?
A. Without the last four words.
Q. All of it?
A. No, without the last four words.
On 3 February 2022, after evidence had concluded, the trial judge received a note from the jury asking two questions.
The first was:
“What does 32/38 refer to?”
This was plainly a reference to ss 32 and 38 of the Evidence Act, which had been raised during the oral evidence of Ms Hanson, as set out at [43] above.
The second was:
“Is Nikita’s statement on 10 March 2020 in evidence? Can we consider her statement that Lily said, ‘Oh Babe, you should’ve felt that. It felt so good’?”
“Ms Hanson’s 10 March statement is not in evidence, portions of her statement were read to her but she did not agree, when cross-examined by the Crown, that the accused had said anything more than ‘Oh babe, you should’ve felt that’.
I will say that they are entitled to consider the evidence of Detective Geelan to the effect that the statement of 10 March was taken by the officer at the instigation of Ms Hanson and she volunteered all the information in it, including the whole of the statement attributed to the accused on walking back up the steps.”
“I think your Honour’s answer there has clarified that really they need to listen to what is being said to them.”
As is clear, counsel for the applicant did not suggest that the evidence was not admissible as hearsay, or as an admission, or that any direction would be required in respect of that evidence.
The trial judge then told the jury:
“The short answer to the first part of your question is ‘No’. Ms Hanson’s statement is not in evidence. It was marked for identification only, so it’s not an exhibit and it won’t go out to the jury room with you when you are considering your verdict.
Portions of Ms Hanson’s statement were read to her and those portions that she accepted as truthful you can consider in your deliberations. But she did not in fact agree, when she was cross-examined by the Crown Prosecutor, that the accused had said that end part of that comment, that is ‘It felt so good’. She accepted that it was truthful that Ms Ridgeway had said, ‘Oh babe, you should’ve felt that’ but she refused to accept the truth of the second part, ‘It felt so good’. So, she hasn’t conceded that that is truthful.
…
It will ultimately be a matter for you to assess Ms Hanson’s evidence, whether you find it truthful and accurate, whether you think it is credible or otherwise and that includes making an assessment of the evidence, of course, that she has given before you about that statement that she has in her police statement was given but did not accept before you was in fact said.”
“Now, you’ve just raised this with her Honour and I’ll come back to this issue in the course of my closing address but whatever view you come to ultimately about whether Ms Ridgeway did indeed say almost immediately afterwards, ‘Oh babe, you should've felt that,’ including the words, ‘It felt so good,’ the Crown nevertheless submit whatever view you come to in relation to that piece of evidence, the accused’s other actions after the incident make it plain that she had not blacked out. She had not gone into some sort of survival mode with no awareness of what she had just done because, members of the jury, the accused’s immediate actions afterwards were flee the scene with apparent knowledge that she was the one that had done the stabbing, to make arrangements to get away from the area, to dispose of items that connected her to the incident and then to remain in hiding for several days.”
The Crown then addressed the jury in relation to four topics. First, in relation to the applicant’s ERISP and why the jury would reject her account of blacking out. Second, as to why the jury would place no significant weight on the statement of Mr Russell. Third, as to how the evidence of the local neighbours, as well as Ms Hanson “and some of the other evidence” could be used to “establish a reliable narrative of what happened out on 3 Payton Street”. Finally, concluding submissions on why the jury would find the charge of manslaughter proved.
In the course of his submissions as to the third of these matters, the Crown submitted:
“So, what the Crown say you can distil from that is that the evidence of the neighbours, combined with the text messages, indicates that Mr Adams was not as aggressive as people have sought to portray him in this trial. The neighbours’ evidence certainly doesn’t rule out confrontation, it just suggests that Mr Adams’ conduct during that confrontation cannot have been as animated, verbal and as loud as people have sought to describe.
And that, you may ultimately think, is important because if Mr Adams was not being as loud and aggressive as the accused and Ms Hanson have sought to falsely portray him, then any threat he correspondingly - would have been perceived by Ms Ridgeway would have been significantly diminished. And if the threat that he was posing to Ms Ridgeway was diminished, then the stabbing of him comes to look more and more like a gratuitous act of violence, the sort of thing that someone may, for example, relish in at the time immediately afterwards, having stabbed a man who had come into the street to cause them a bit more grief, who was asking for it, ‘Go on, stab me’ and that essentially they’ve all had it coming. It’s a situation where Ms Ridgeway may indeed have said in the immediate aftermath, to Ms Hanson, ‘Oh babe, you should’ve felt that. It felt so good.’.”
“Members of the jury the Crown submission to you is that the accurate account is the one that Ms Hanson went deliberately and voluntarily to the police station to make very shortly after the incident and that is that Ms Ridgeway spoke exactly those words when she came back up the steps. ‘Oh babe, you should have felt that. It felt so good’.
The Crown say it could not be more plain that what Ms Hanson has sought to do is to minimise the conduct of Ms Ridgeway, firstly by denying she remembered that at an earlier trial and then by trying to walk back part of that comment but the Crown say that that comment, as made in 10 March 2020 statement is and must be the accurate description of what Ms Ridgeway actually said.”
“So the Crown’s submission is that what actually happened out on 3 Payton Street is that Ms Ridgeway deliberately thrust the knife into Mr Adams’ chest and she did so out of anger and frustration. She’d had enough of Mr Adams by that point. She was telling him to ‘Fuck off and leave us alone’ and when he ultimately wouldn’t and he taunted her, ‘Go on, stab me’ as well as calling her a black dog, which he should obviously not have said, but when he did, she stuck a knife deliberately into his chest. And afterwards, she took some pleasure in having done so, because she walked back up those steps and she said, ‘Oh babe, you should have felt that. It felt so good’.”
“All the Crown have to prove is that the actual final act of stabbing the knife into Mr Adams’ body was an intentional one and the Crown say you would find that it was an intentional one.
The Crown say you would also find that what Ms Hanson first described on 10 March 2020 for the police, is the accurate account. What Ms Ridgeway said afterwards, immediately afterwards was ‘Oh babe, you should have felt that. It felt so good’. Because that comment is also consistent with her conduct before and the conduct say is consistent with her conduct afterwards, because she knew full well that she had done something wrong. She fled the scene, she disposed of incriminating items and she remained in hiding for several days.”
“The accused also armed herself with a knife in relation to self-defence. She went a considerable distance to confront Mr Adams with it. She told him to, ‘Fuck off,’ and, ‘Leave us alone,’ before she stabbed him. She made no attempt to back away from him and when he advanced towards her, unarmed and alone, saying, ‘Stab me. Stab me,’ she did exactly that. The Crown’s submission, as I said, is that stabbing is not an act of self-defence. It is an act born of anger and frustration, and not a defensive one. That’s consistent with that comment made on the way back in.”
“In relation to the first point, that the accused did not believe it was necessary to stab Mr Adams to protect herself or to protect Ms Hanson, I've gone over the reasons the Crown say that you would reject the accused’s account of perceiving Mr Adams as a threat and going into survival mode and if you reject that account, then the Crown say it almost automatically follows that you would find that she was not acting in self-defence. She’s effectively lied to try and justify a stabbing and that is a clear indication that it was not an act done in self-defence. So you would conclude that it was actually an act done born out of anger and frustration, consistent with the comment that she made on the way back up the stairs.”
“… invited the jury to use the evidence that the appellant said ‘It felt good’ to decide that she did say those words and to conclude that she deliberately stabbed Mr Adams, doing so out of anger and frustration rather than as an act of self-defence, and that she took pleasure and ‘relish’ in doing so”.
“The Crown has placed a reasonable amount of weight on this ‘Oh babe’ comment on the steps. Now, the Crown say that you must prefer or you ought prefer the version of this given by Ms Hanson when she made her statement on 10 March 2020, that you should accept what she said to the police at that stage. All this comment, to have any impact on your assessment of the evidence on what happened that night, you first need to be satisfied that Ms Hanson’s evidence on that issue is reliable, that it reflects an actual reliable memory, that it’s safe for you to take this very significant leap that the Crown is asking you to make, not only that it was said but it somehow indicates this malicious intent.
I suggest that Ms Hanson’s evidence on this point is unreliable and I ask you to reject the submission that a comment was made, let alone what you would make of it. And the evidence on which I support this is this: Very clearly, Ms Hanson is a fragile character but she says nothing to police in her first interview, on the very day it happened, when it’s fresh in her mind, about this comment. She sends them an email on 4 March, four days later, with more detail, she says nothing about it. She makes another statement that day, she says nothing about it.
The first time she mentions it is 11 days afterwards and the context for her saying this is important. She was mentally unwell, seeing her psychologist, rehashing and talking over the event with others, she’d lost herself, she was not in a good place. I suggest to you, they are not circumstances conducive to that account on 10 March being considered reliable, being an account that should be preferred.”
“You will have regard, of course, to the whole of Ms Hanson’s evidence when you determine what parts of it you find reliable and, as I said to you yesterday, you can find a witness’ evidence entirely reliable, you can accept parts of it as reliable and reject other parts as unreliable. That is entirely a matter for you. But you are entitled to have regard to the evidence that you have heard about what she said to the police in her police statement to determine what facts you find are established as to what occurred on that morning and what was said by the accused on that morning. So that is just to remind you about that portion of Ms Hanson’s evidence where the Crown was given permission to cross-examine her on the question of what she heard the accused say when she came back up the stairs after Mr Adams was injured.”
“The Crown submitted to you that you would accept the evidence of what Ms Hanson said to the police in her 10 March 2020 statement, that that in fact was Ms Hanson’s truthful account of the accused saying that comment about ‘You should have felt that, it felt so good’. The Crown suggested to you and submitted that you should accept that that in fact was what the accused said when she came up the steps and that if you accept that, that is consistent with neither accident nor self-defence but it is consistent with a deliberate and intentional act.
The Crown pointed you to Dr Cala’s evidence to say that the prospect that Mr Adams walked onto the knife has been excluded because the doctor gave you his opinion that there was some forward thrust of the knife and he said that this comment that the accused was said to have made, when Ms Hanson gave her police statement in March 2020, that that comment suggested she took some pleasure in what had occurred, inconsistently with an act of self-defence.”
…
“[Counsel for the applicant] addressed this evidence from Ms Hanson’s police statement, the comment that Ms Ridgeway is said to have made, walking back up the steps into the house, the ‘Oh babe it felt so good’ comment. She said if you look at Ms Hanson’s evidence, she being the only witness who could tell you about that comment, her evidence was entirely unreliable on it. She has obviously shifted her position about that. She said one thing to the police, something else to you. Her evidence is not reliable and you could not accept that what she said to the police was truthful beyond a reasonable doubt.
…So it is submitted to you that the evidence of what Ms Ridgeway supposedly said is completely unreliable and you could not act upon it in concluding that the Crown had excluded self-defence.”
There was no dispute on appeal that the 10 March 2020 Statement was relevant evidence, and thus prima facie admissible under s 56 of the Evidence Act. There was also no dispute that the evidence of what Ms Hanson told the police on 10 March 2020 was admissible when questioning Ms Hanson as an unfavourable witness under s 38 of the Evidence Act.
However, as set out above, the Crown accepted on appeal that, had objection been taken to the evidence, “the evidence of Ms Hanson that she told the police on 10 March 2020 that the applicant said ‘It felt so good*’* could not be used to prove those words were in fact said by the applicant. In those circumstances, the evidence would only have been admissible as a prior inconsistent statement”. Whilst the Crown, in its written submissions, contended that the 10 March 2020 Statement could “theoretically have been pressed (if objection had been made) under s 81(2)” of the Evidence Act, given the position taken by Senior Counsel for the Crown at the hearing of the appeal, set out at [21] above, it is apparent that this submission was not ultimately pressed on appeal.
The miscarriage of justice arose in this case because the 10 March 2020 Statement was an admission as defined in the Evidence Act:
admission means a previous representation that is—
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.
60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note—
Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
Note—
The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.
81 Hearsay and opinion rules: exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and
(b) to which it is reasonably necessary to refer in order to understand the admission.
82 Exclusion of evidence of admissions that is not first-hand
Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless—
(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or
(b) it is a document in which the admission is made.
Note—
Section 60 does not apply in a criminal proceeding to evidence of an admission.
“The exception to the hearsay rule in s 60 of the Evidence Act does not apply in a criminal proceeding. The effect is that second-hand hearsay of a representation made in an out of court statement cannot be relied upon as an admission for the purpose of s 81 of the Evidence Act.”
“The nature of what Mr Calin said in his statements to the police was such that evidence of those statements was evidence both of representations made by Mr Calin to the police (about what Mr Calin had seen and heard) and of representations made to Mr Calin by the appellant (about what the appellant had done). By virtue of s 59, the evidence was not admissible to prove the existence either of the facts which Mr Calin intended to assert to the police or of the facts which the appellant intended to assert to Mr Calin. Section 60 operated only upon the former representations; it had nothing to say to the representations made by the appellant to Mr Calin. It was only the representations made by Mr Calin to the police that were relevant for a purpose referred to in s 60: the purpose being to prove that Mr Calin had made a prior inconsistent statement and that his credibility was thus affected. The hearsay rule was rendered inapplicable to Mr Calin's representations, but not to the representations allegedly made by the appellant. And, of course, the representations allegedly made by the appellant were not admissible under the confession exceptions to the hearsay rule created by s 81 because the evidence of these confessional statements was not first hand [s 82].” (Emphasis in original.)
We readily accepted the applicant’s submission that in the circumstances set out above both the failure of counsel to object to the admissibility or use of the 10 March 2020 Statement for a hearsay purpose, and the failure of the trial judge to give the jury a direction limiting the use of that evidence, were material irregularities which, for the reasons set out above, led to a miscarriage of justice.
As to the former, we have already explained that, objectively, there is no rational forensic explanation for the failure of counsel to have objected to the admission or use of the 10 March 2020 Statement for a hearsay purpose or to have sought a direction limiting its use. Had an objection been made, the evidence would not have been admissible for a hearsay purpose. Given how prejudicial this evidence was, and our finding as to the significance of the evidence, the omission of counsel was a material irregularity resulting in a miscarriage of justice.
As to the latter, in Perish this Court in finding that the words “not admissible” in s 59 of the Evidence Act mean “not admissible over objection” also held at [272]:
“… nothing we have said relieves the trial judge from his or her overriding obligation to ensure a fair trial according to law: Pemble v The Queen (1971) 124 CLR 107 at 117–118; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [24]. To the extent necessary, this obligation would extend to requiring the trial judge on his or her own motion to exclude inadmissible evidence, the effect of which would deny a fair trial, and in other circumstances to direct the jury not to take account of a particular piece of evidence which would have been rejected had objection been taken.”
“In the extraordinary circumstances of this case, just as no reasonable tribunal of fact could possibly have been beguiled by the appellant’s fabrications, so an appellate court invited to apply the proviso is not obliged to entertain these fantastical suggestions as giving rise to a reasonable doubt as to the appellant’s guilt.”
Having regard to the evidence in the applicant’s trial, relevant parts of which are summarised above, we were not satisfied beyond reasonable doubt as to the applicant’s guilt. We did not accept the Crown’s submission that the applicant gave a glaringly improbable version of events that was incapable of acceptance. As accepted by Senior Counsel for the Crown, Dr Cala’s evidence is neutral as to whether or not the applicant was acting in self-defence. The applicant gave evidence that she thought that she saw something shiny which could have been a knife in the deceased’s hand in circumstances in which he was moving towards her and grabbed her, that she thought that she had to protect herself and that she acted in self-defence. The applicant’s account of going into “survival mode” was not glaringly improbable given her history of being subjected to domestic violence, including being the victim of a then recent serious and violent assault. Whilst there were obvious issues as to reliability with Mr Russell’s evidence in general, that evidence provided some limited corroboration of the applicant’s account that the deceased grabbed her. We were not satisfied beyond reasonable doubt that the applicant did not believe that she had to act as she did in her own defence or that her response was not a reasonable response in the circumstances as she perceived them to be.
Accordingly, we rejected the Crown’s submission that no substantial miscarriage of justice occurred and that the proviso was engaged.
**********
Ridgeway
R [2024] NSWCCA 85
(2005) 79 ALJR 662
(2023) 97 ALJR 978
(2021) 274 CLR 351
(2020) 102 NSWLR 178
(1998) 195 CLR 594
(2006) 80 ALJR 614
(2017) 96 NSWLR 155
(2016) 92 NSWLR 161
(2002) 212 CLR 124
(1971) 124 CLR 107
(2014) 253 CLR 475