Inadmissible Hearsay Evidence Must Not Be Allowed Before Jury, Despite Absence of Challenge

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By Paul Gregoire and Ugur Nedim

Jason Adams was staying at Nikita Hanson’s Raymond Terrace house on 28 February 2020, as a condition of bail, when the situation deteriorated to the point that Lily Ridgeway and two male friends arrived to assist her with evicting the man on conditional release.

After being thrown out, Adams sent Hanson heated text messages throughout the night, which became increasingly threatening, with the last SMS sent at 5:19 am, stating he was on her street and Ridgeway left the house holding a 15 centimetre knife, while one of the men followed her out.

During an altercation, Ridgeway stabbed an unarmed Adams in the chest, piercing his heart and killing him. And when the case came to trial, the Crown put it to the court that the woman went outside and killed the man out of hostility, not any perceived notion of danger.

But Ridgeway recalled Adams screaming at her, and repeatedly calling her a slut, as she walked down a few stairs, that he was walking up. She claimed he was holding his mobile in his left hand and something shiny in his right. And she can’t remember anything from after he grabbed at her.

Ridgeway later told police that after blacking out, the next thing she remembers was Adams was bleeding in the street and she was not far from him. Ridgeway then fled the scene, hiding until her mother picked her up and took her to a hotel. And she was arrested two days later.

Sentenced for manslaughter

A New South Wales Supreme Court jury convicted Ridgeway of the crime of manslaughter under section 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment.

Manslaughter differs from the other type of punishable homicide of murder, as the former involves an unintentional killing by unlawful and dangerous act.

Ridgeway argued that firstly the act was an accident, and secondly, she acted in self-defence, which are both defences available for this crime.

NSW Supreme Court Justice Helen Wilson sentenced Ridgeway to 7 years and 7 months gaol time, with non-parole set at 5 years. And her Honour found “special circumstances”, which meant that the non-parole period did not have to be the required 75 percent of the head sentence.

If special circumstances are found in relation to a particular conviction, section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that the required non-parole period of three-quarters of an overall sentence can be reduced beyond this limit.

The court heard Ridgeway had suffered an extreme domestic violence assault in April 2018, which lead to her assailant being convicted of assault occasioning actual bodily harm, while in January 2020, she was also subjected to two domestic violence assaults that saw the perpetrator convicted.

And two instances of hearsay evidence were raised during the trial but were left uncontested by either the defence or the prosecution. The first involved the man who followed Ridgeway out of the house during the stabbing, stating, “I honestly thought he was going to attack her.”

While the second instance of hearsay evidence involved a police officer reading out some of the transcript of Hanson’s second police interview, in which she stated that Ridgeway returned to the house after she had stabbed Adams and said, “Oh babe, you should have felt that. It felt so good.”

Hearsay evidence

Ridgeway appealed her conviction to the NSW Criminal Court of Appeal (NSWCCA) on 3 May this year. And she did so based on two grounds, with the first being the “it felt so good” evidence shouldn’t have been allowed and the second was that the impact of COVID wasn’t accounted for.

Hearsay evidence is information provided by an individual testifying that constitutes their recalling that a third party said something about a matter, and it is cited in court as if it is truth. If significant hearsay evidence is cited, it’s expected that a lawyer should then contest its permissibility.

Section 59 of the Evidence Act 1995 (NSW) contains the hearsay rule, which stipulates that facts that have been asserted via recollection of what a third party said are not admissible except under certain circumstances, including when the third party is unable to appear in court.

The three NSWCCA justices presiding over the case explained that Ridgeway considered a miscarriage of justice occurred due to the hearsay evidence, as her lawyer didn’t object to it or request that the judge provide a direction limiting the use the jury could make of that evidence.

The second issue Ridgeway raised was that the trial judge should have given such a direction on this point regardless of whether her lawyer had made that request.

Greenlighting hearsay

As Hanson was testifying, the prosecution raised her two police interviews, and in particular, that in the second one she’d described the “it felt so good” scenario. And she added that she didn’t provide this information during the first interview, as she’d been so traumatised by it.

However, when the Crown lawyer pointed to this statement during trial, Hanson explained that Ridgeway didn’t make the statement and that while she had said, “Oh babe, you should’ve felt that”, she tacked on the last part, as that’s what she thought was being inferred.

And the jury put two questions to Justice Wilson, with the second one being, “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’?”

And her Honour then told the defence lawyer, whilst the jury wasn’t present that she’d explain to the jurors that these statements weren’t permitted as evidence.

However, the trial judge’s remarks to the jury regarding this question were cited on appeal and while she states the police interview remarks were not evidence, she then told the jury they could deliberate upon whether her denial of that statement was ever made was “truthful and accurate”.

The NSWCCA justices then cited multiple instances where the Crown continued to refer to the “it felt so good” evidence. Indeed, it invited the jury to accept the statement and rely on it. And in closing, the prosecution underscored that the jury should consider the interview statements as the truth.

Their Honours further cited sections from Justice Wilson’s summing up, which had her stating that Hanson was an unreliable witness. And while her Honour did say “it felt so good” couldn’t be relied on as evidence, she didn’t say that it couldn’t be used to make adverse inferences about Ridgeway.

The findings of the court

NSWCCA Justices Katrina Stern, Stephen Rothman and Dina Yehia found there was no issue with the interview statement being of relevance and admissible when questioning Hanson. But if the defence had objected to it, then it couldn’t be considered proof, but rather a prior inconsistent statement.

The Crown agreed with this on appeal but suggested that under the Evidence Act there are exceptions to when the hearsay rule may apply. However, as the statement contained an admission of guilt, the exception does not apply in criminal proceedings and nor when it’s not firsthand.

Their Honours found that a miscarriage of justice had occurred due to Ridgeway’s lawyers not objecting to the hearsay evidence “and given how prejudicial” it was, they found that another miscarriage had occurred due to the judge not having provided a direction on admissibility.

“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,” the NSWCCA justices said in concluding.

And their Honours’ 31 May 2024 orders saw Ridgeway’s original sentence quashed and a retrial ordered. And as for the second COVID ground of appeal, it did not have to be considered as the first ground had been made out.

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