R v Hickson; R v McDonald [2022] NSWSC 1450

R v Hickson; R v McDonald [2022] NSWSC 1450

Ms Speering was not recalled because, given the pending prosecution against her and the absence of any real prospect that she would admit lying to police, it was not in the interests of justice to require further questioning. Count 2 could not go to the jury because the Crown could not establish beyond reasonable doubt, without speculation, that the relevant statements in Ms McDonald's 16 January 2021 police statement were deliberately false, and those statements were not shown to have the capacity to assist Ms Hickson to evade justice at the time they were made. Without that material, there was no evidence of an actus reus for accessory after the fact after Ms McDonald knew Mr Carroll...

Jurisdiction
Australia
Judgment Date
26 October 2022
Procedural Posture
Common Law Criminal / Procedural Rulings Before the Crown Closing Its Case, Including an Application to Recall a Witness, the Crown's Application to Tender Ms Mc Donald's Statement, and Ms Mc Donald's No Case Application on Count 2
Outcome
Ms McDonald's application to recall Ms Speering was refused; Ms McDonald's no case application with respect to Count 2 was granted; the tender of Ms McDonald's statement was rejected.
Legal Topics
['accessory After the Fact to Murder' 'actus Reus' 'no Case Application' 'application to Recall Witness' 'self Incrimination Certificate' 'police Statement Alleged to Contain Lies']
['criminal Law' 'evidence' 'criminal Procedure'] ['accessory After the Fact to Murder' 'actus Reus' 'no Case Application' 'application to Recall Witness' 'self Incrimination Certificate' 'police Statement Alleged to Contain Lies']

Case Brief

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Procedural Posture

Common Law Criminal / Procedural Rulings Before the Crown Closing Its Case, Including an Application to Recall a Witness, the Crown's Application to Tender Ms Mc Donald's Statement, and Ms Mc Donald's No Case Application on Count 2

Legal Issues

  1. 1 ['Whether Ms Speering should be recalled for further cross-examination about a pending charge of perverting the course of justice.' 'Whether it was in the interests of justice under s 128 of the Evidence Act 1995 (NSW) to require Ms Speering to answer potentially incriminating questions if she refused to answer.' "Whether Ms McDonald's 16 January 2021 police statement could be tendered as evidence of the actus reus of Count 2." 'Whether there was sufficient evidence capable of proving that Ms McDonald, after knowing Mr Carroll had died, did an act capable of assisting Ms Hickson to evade justice as an accessory after the fact.']

Ratio Decidendi

Ms Speering was not recalled because, given the pending prosecution against her and the absence of any real prospect that she would admit lying to police, it was not in the interests of justice to require further questioning. Count 2 could not go to the jury because the Crown could not establish beyond reasonable doubt, without speculation, that the relevant statements in Ms McDonald's 16 January 2021 police statement were deliberately false, and those statements were not shown to have the capacity to assist Ms Hickson to evade justice at the time they were made. Without that material, there was no evidence of an actus reus for accessory after the fact after Ms McDonald knew Mr Carroll...

Court Disposition

Ms McDonald's application to recall Ms Speering was refused; Ms McDonald's no case application with respect to Count 2 was granted; the tender of Ms McDonald's statement was rejected.

Orders

  • ["Refuse Ms McDonald's application to recall Ms Speering." "Grant Ms McDonald's no case application with respect to Count 2."]