Supreme Court New South Wales Medium Neutral Citation: R v Hickson; R v McDonald [2022] NSWSC 1433 Hearing dates: 20 October 2022 Date of orders: 20 October 2022 Decision date: 20 October 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Leave to adduce further evidence of Beau Coulthard refused. Catchwords: EVIDENCE – application to adduce evidence to restore credibility of previous witness Legislation Cited: Evidence Act 1995 ss 108, 137, 192 Category: Procedural rulings Parties: Regina (Crown) Maddison Hickson (Accused) Taylah Renae McDonald (Accused) Representation: Counsel: B Costello (Crown) P Krisenthal (Accused Hickson) P Rosser KC (Accused McDonald) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused Hickson) Nowland Lawyers (Accused McDonald) File Number(s): 2021/13793; 2021/303481 Publication restriction: Nil Judgment 1. HIS HONOUR: Taylah McDonald is charged with being an accessory after the fact to the murder of Michael Carroll by Maddison Hickson on 16 January 2021 or alternatively that she hindered the discovery of evidence of a serious crime committed by Ms Hickson. For presently relevant purposes it is sufficient to note that Ms McDonald is alleged, among other things, to have removed the knife that is said to have been used by Ms Hickson to kill Mr Carroll from somewhere in the loungeroom of Ms McDonald's house where he was stabbed and to have placed it in the dishwasher where it was cleaned. The knife retained no biological or other forensically useful material following the dishwasher cycle. 2. Shirley Salter is Ms Hickson's grandmother. She attended the premises where Mr Carroll was killed shortly after he was stabbed inside the house. By the time she arrived, Mr Carroll was lying on his back on the front lawn of the premises in a poor state. Ms Salter told the police that Ms McDonald told her at some time shortly following the incident that Ms McDonald had taken the knife and placed it in the dishwasher. 3. Ms Salter was extensively cross-examined by Mr Rosser of King's Counsel on behalf of Ms McDonald to suggest that Ms McDonald never told her that at all. Mr Rosser was aided in that task by the fact that Ms Salter had as recently as 13 October 2022 been interviewed by the Crown's legal representatives, at which time she told them that she could not be sure whether it was Ms McDonald who told her that she had moved the knife or whether it was Jasmine Speering who was also present at the scene. The upshot of the cross-examination was that Ms Salter's credit became a significant issue in the proceedings for obvious reasons. 4. Some of Mr Rosser's cross-examination of Ms Salter on this topic is as follows: "Q. Yeah, do you remember what you told these two gentlemen at the other end of the bar table in a conference on 13 October? A. Yes. Q. Do you remember what you told them about this supposed conversation, about the dishwasher? A. Yes. Q. You told them that it was either Taylah or Jasmine who said that to you, didn't you? A. Yes, I did, but It wasn't, it was Taylah that said to me. Q. Your recollection a week ago was that it was either of them and you couldn't say which, is that right? A. Yes, I did say that. Q. And if you were being accurate when you told us earlier that the conversation happened before you went inside, it has to have taken place at a time when Taylah is talking to the triple-0 operator, is that right? A. No. Q. Did the conversation take place at all? A. Yes, it did." 1. Shortly thereafter, Beau Coulthard gave evidence. He is the current partner of Shirley Blacktop, Ms Salter's daughter. His evidence was primarily directed to establishing Mr Carroll's predisposition or tendency to be violent. However, in a statement provided by Mr Coulthard on 18 January 2021, he told the police the following: "27. I don't have any knowledge about the reason for the argument between Mick and Maddie on Saturday night. I am aware of recent threats from Mick towards Maddie. I had heard that Mick wanted Maddie's Suzuki Swift that is at 12 Ronald Street, but Maddie wouldn't let him have it. I have also heard that Mick was threatening to slit Jamie Thorley's throat. I believe Mick was staying with Jamie recently. Shirley had also mentioned in my presence that Taylah had told her she put the knife used in the dishwasher. I'm not sure where this conversation took place." 1. The Crown sought leave to adduce the penultimate sentence of that paragraph in order to re-establish Ms Salter's credibility, relying upon s 108(3)(b) of the Evidence Act 1995. Section 108 is in these terms: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if-- (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 1. Mr Rosser objects to the grant of leave relying upon s 137 of the Evidence Act, upon the basis that the evidence that the probative value of the evidence that the Crown wishes to adduce is outweighed by the danger of unfair prejudice to Ms McDonald. Mr Rosser contends that leave to adduce the evidence should be refused having regard to the factors referred to in s 192(2) of the Evidence Act. Mr Rosser maintains that it would be unfair to Ms McDonald if leave were to be given, even on terms limiting the use to which the jury might put the evidence concerned. 2. In my view, leave to adduce this evidence should be refused. Accepting that the Crown relies upon an exception dealing specifically with evidence to be adduced to re-establish the credibility of its witness, and that the evidence on its face would appear to qualify for that purpose, I consider that it would be unfair to Ms McDonald to receive Mr Coulthard's hearsay representation. That is fundamentally for the reason that Ms Salter did not herself give evidence of having told Mr Coulthard that Ms McDonald had informed her that she had moved the knife and Ms Salter's evidence is now complete. Secondly, having regard to the evidence so far, I am particularly concerned that Ms Salter, who as recently as last week could not distinguish between two possible personalities having made the relevant admission about moving the knife, should now in her absence from the witness box have her evidence bolstered by a hearsay representation that Mr Rosser clearly made the forensic decision to avoid when she was there. The matter would be significantly different, it seems to me, if Ms Salter had confirmed in the course of giving her evidence that she told Mr Coulthard the very thing that the Crown now wishes to elicit from him, in which case any attack on Ms Salter's evidence would have been mounted when the representation allegedly made by her to Mr Coulthard was squarely on the table. 3. I am also concerned that reception of the evidence of Mr Coulthard on this point would raise the spectre of his own credibility, potentially giving rise to the prospect that the jury would be required to accommodate a series of competing possibilities about who should be believed. Such a task is undoubtedly one for a jury in the normal course but in the present case, having regard to the fact that Ms Salter's evidence is arguably so significant, because Ms McDonald allegedly confessed to her that she moved the knife, that issue should be resolved by reference to Ms Salter's evidence in court rather than by reference to a representation upon which she was not and cannot now be tested. 4. I consider that leave to adduce the evidence should be refused. It becomes unnecessary to consider the different question of whether the probative value of the evidence is outweighed by the danger of unfair prejudice to Ms McDonald. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2022