Gene Lui Relquist v R No. SCCRM 94/194 Judgment No. 4627 Number of Pages 9 Criminal Law and Procedure Evidence

[1994] SASC 4627

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - evidence - Admissibility of evidence rebutting evidence of defence witness denying that he had told police that if brought to court he would say nothing - whether collateral matter affecting credit only - whether admissible as indicating bias or partiality.

Criminal law and procedure - jurisdiction, practice and procedure - courses of evidence, statements and addresses - Address of prosecuting counsel reflecting on character of accused as disclosed by the evidence - no suggestion of previous bad character - exhortations to do duty to community especially in view of prosecution witnesses "exposing themselves" by giving evidence - correction to counsel's flamboyant language applied by judge's summing up.

Criminal law and procedure - jurisdiction, practice and procedure - verdict - Whether unsafe - alleged inconsistency between guilty verdicts on two counts and not guilty verdicts on 3 counts - evidence different as to two of the counts - explicability of not guilty verdict of assault which formed part of incident founding count of demanding money with menaces - verdicts not unsafe.

Criminal law and procedure - evidence - Admissibility - evidence rebutting evidence of defence witness denying that he had told police that if brought to court he would say nothing - whether collateral matter affecting credit only - whether admissibile as indicating bias or partiality.

HRNG ADELAIDE, 20-21 June 1994 #DATE 21:6:1994

Counsel for appellant:     Ms B J Powell

Solicitors for appellant:    Jon Lister

Counsel for respondent:     Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was tried by judge and jury in the District Court on an information containing five counts. The first two counts alleged that the appellant demanded from one Joseph Mazzilli money with menace on two separate occasions; the third count alleged that the appellant demanded money with menaces from Joseph Mazzilli's brother Jesse; the fourth count alleged an assault by the appellant upon Joseph Mazzilli; and, the fifth count alleged an assault upon Jesse Mazzilli.

2. The appellant was found guilty on counts 1 and 2 and not guilty on counts 3, 4 and 5.

3. Joseph Mazzilli gave evidence for the prosecution. His evidence was that his brother Jesse had been a member of a motorcycle club known as the War Lords of which the appellant was president. Joseph had become acquainted with members of that club in consequence of his brother's membership. In September 1992, he received a telephone call in the early hours of the morning from a man whom he knew as Bird and who requested marijuana. Joseph told him that he did not have any and was unable to procure any. Bird and another man came to Joseph's house and shouted abuse from the outside and made threats. They then went away.

4. On the following day, Jesse was at Joseph's house. Bird and another man, again, came to the house. The other man was known as Ching. They were not admitted to the house and, after shouting some abuse, again went away.

5. Jesse then arranged a meeting with Bird and Ching and Bird and Ching, in consequence of that arrangement, came to Joseph's house and had a discussion with Joseph and Jesse. They demanded the sum of $5,000 and made threats as to what would happen to Joseph and his family if the money was not paid.

6. Joseph's evidence is that they were prepared to pay, but Bird seemed not to be satisfied and complained of a lack of co-operation.

7. He telephoned the appellant, and told the appellant the Mazzillis were not co-operating. The appellant came to the house. He struck Joseph a punch on the face. He made threats and indicated that, as he had been obliged to intervene, the sum required was now not $5,000 but $7,000.

8. Joseph's evidence was that he obtained $4,000 from his mother and $3,000 from his cousin and that he entrusted that to Jesse to pay the appellant. At the same time he sought a loan from the Commonwealth Bank. When that loan came through, he reimbursed his mother and his cousin. The event which I have just described as recounted by Joseph was the incident charged in the first count in the information.

9. There was then a demand that Joseph and Jesse go to the appellant's home at Happy Valley. They went there. The appellant threatened Joseph with a knife and demanded a further $7,000. Joseph's evidence was that he borrowed this sum of money from a man by the name of Dominic Esposito and that that money was entrusted to Jesse to take to the appellant. Esposito was, in due course, repaid, according to Joseph. There is some ambiguity in the evidence as to whether the money to repay Esposito came from the proceeds of the bank loan, or whether it came, in part, from another sum of $4,000 borrowed from Joseph's mother, and from other sources. The event at the Happy Valley house is the subject of the second count.

10. Jesse gave evidence generally supporting Joseph's evidence in relation to those two events. Jesse also gave evidence which was the basis of the third count. He said that he had accompanied the appellant and others to the Mobilong Prison for the release of another man, who was a member, or had been a member, of the Warlords club. There was to be a party that night, apparently to celebrate the release of this man, at the appellant's home. Jesse says that he did not attend the party, as he had been expected to do. He was then told that he must present himself to the appellant as he had been disrespectful, and he did so on the following day, which was a Saturday. He said that he was there assaulted by the appellant, threats were made, and the sum of $15,000 was demanded from him. He was threatened that if the money was not paid some tattoos on his body would be cut off. Jesse gave evidence that he could not find the money and contacted the police.

11. I might say that both Joseph and Jesse claim that a man by the name of Knight was present on all three occasions.

12. The appellant gave evidence denying any threats, denying that money was demanded of either of the Mazzillis, and denying that any money was received from them. His evidence was that on the Friday night of the release of the man from the Mobilong Prison, Jesse Mazzilli did attend the party and that he assaulted Knight. He gave evidence tending to indicate that on the following day Knight had assaulted Jesse, presumably in retaliation.

13. Mr Knight gave evidence denying that he was present on any occasion when threats were made, or money demanded, and substantiating that he had been assaulted by Jesse on the Friday night, and had struck Jesse in retaliation on the following day.

14. Esposito gave evidence denying that he had made any loan to either of the Mazzillis.

15. There was other evidence in the case adduced by the prosecution as to the source of the funds which the Mazzillis claimed they paid to the appellant. The Mazzillis' mother gave evidence that she had drawn the sum of two thousand dollars, not four thousand dollars as claimed by Joseph, from her account, on the first occasion, and that she had lent four thousand dollars on the second occasion.

16. The cousin gave evidence that she had loaned the sum of three thousand dollars to the Mazzillis, and had been repaid.

17. I have summarised the evidence in the case very briefly in order to provide a sufficient, I think, factual background for a proper consideration of the grounds of appeal.

18. The first ground of appeal was that the trial judge had erred in law in admitting evidence in rebuttal from a Detective Hunt. This issue arose in the following way.

19. Detective Hunt gave evidence explaining why certain witnesses who might have been regarded as relevant, were not called as part of the prosecution case. Amongst those witnesses was Esposito. Hunt gave evidence that he had been unable to obtain a statement from Esposito. Esposito, as I have said, gave evidence on behalf of the defence. He gave evidence that he had not loaned the money to the Mazzillis, but he also said that he had spoken to Detective Hunt on the day before his appearance in court, and that he had told Detective Hunt that he had not lent money to the Mazzillis.

20. He was cross-examined about his conversation with Detective Hunt. It was not put to him specifically that he had not made the statement which he claimed to have made to Detective Hunt, but he was questioned about what he had said to Detective Hunt. In particular, he was asked whether he had told Detective Hunt that if he were required to come to court he would say nothing. He said that he could not recall having made that statement. Counsel for the prosecution applied to the judge for leave to call evidence from Detective Hunt as to this conversation in rebuttal. Evidence was given by Detective Hunt on the voir dire in the absence of the jury, as to the conversation which took place. He recounted the conversation. It was apparent from that, that if Detective Hunt was accurately recounting the conversation, Esposito had not told him that he had not lent the money.

21. Nevertheless, counsel for the prosecution conceded to the judge that in view of his failure to cross-examine Esposito on that point, it would be inappropriate for him to call evidence in rebuttal on that aspect. He, however, submitted that he was entitled to call evidence in rebuttal on the topic of Esposito's alleged statement to Hunt, that if brought to court he would say nothing.

22. He was permitted to do that, and Detective Hunt gave evidence that that is what Esposito had said to him.

23. Ms Powell, who appeared for the appellant before us, has contended that the decision to allow that rebuttal evidence was an error of law.

24. It seems to me, however, that the evidence was admissible, and in the circumstances the prosecution were entitled to call it in rebuttal. There was clearly an issue in the case as to whether Esposito had lent the money to the Mazzillis. What Esposito said out of court on that topic became a sub-issue, as it were, in the case, in consequence of defence counsel examining Esposito as to what he had said to Detective Hunt. It may be questionable whether that evidence was admissible. It may have been made admissible by Detective Hunt's evidence, accounting for the failure of the prosecution to call Esposito, but whether it was admissible or not, it was introduced by the defence, and it made what Esposito said to Hunt on the topic a sub-issue on which the prosecution was entitled to call evidence.

25. I am unable to accept Ms Powell's submission that it was a collateral matter, going purely to credit and as such could not be the subject of evidence rebutting Esposito's answers. The evidence certainly went to the credit of Esposito, but by no stretch of the imagination, could it be regarded as collateral to the issues in the case. It was directly related to a most significant issue in the case.

26. I think that the evidence was admissible on another ground also. The fact that Esposito, who had given evidence for the defence denying that he had made the loan, when requested by a police officer on the previous day to come to court to give evidence, stated that he would say nothing if brought to court by the police, to my mind, was evidence from which the jury might infer that Esposito was a biased or partial witness. A statement by a man that, if brought to court, he will say nothing, might be regarded by the jury as implying that he knew something adverse to the accused, but that he would deny that he knew that on oath if brought to court. In other words, he would tell lies if brought to court.

27. In my opinion, the evidence elicited from Detective Hunt in rebuttal was evidence from which a jury might infer that Esposito was a witness who was biased or partial against the prosecution, and in favour of the appellant and was therefore admissible under the common law rule permitting proof of bias or partiality on the part of a witness.

28. In my opinion, therefore, the judge correctly admitted the evidence given by Detective Hunt in rebuttal.

29. The second ground of appeal was that the counsel for the prosecution transgressed permissible limits in the course of his final address by conveying to the jury that the appellant was a man of bad character, and the ground of appeal complains about the judge's refusal to discharge the jury on that account.

30. Ms Powell has examined the address of counsel for the prosecution. There is no doubt that counsel expressed himself in very strong terms, some might say, in unduly strong terms on certain aspects. There were strong observations about the circumstances in which Esposito gave evidence, but it seems to me that the counsel for the prosecution was entitled to invite the jury to infer from the circumstances, including the evidence to which I have previously alluded, that Esposito was not in the witness box telling the truth about the matter, but was giving a false account which was inspired by pressure or fear. It was an inference which was open to the jury, and counsel for the prosecution was entitled to ask them to draw that inference.

31. Counsel also expressed himself in strong terms about the character of the appellant as disclosed to the jury by evidence in the case, and the appellant's performance in the witness box, both his demeanour and the answers which he gave.

32. These submissions have come under strong criticism from Ms Powell. Certainly, counsel expressed himself in strong, perhaps in some instances, regrettably flamboyant terms, but it is legitimate for counsel to invite the jury to draw conclusions from the evidence in the case, and their assessment of an accused person in the witness box.

33. There was nothing in counsel's address which conveyed that the appellant was a man of previous bad character. Counsel was inviting the jury to form an estimate of the disposition and character of the accused from what they saw of him, and what they had heard from him, as well as from the evidence given in the case, namely, that he was a man who might well do the things that were alleged against him. That is a legitimate matter for the assessment of the jury, and counsel was entitled to address them on it.

34. Ms Powell also took exception to other passages in the address of counsel, in which he was, in effect, exhorting the jury to do their duty to protect the community, particularly as the Mazzillis had been prepared to come forward and give evidence against the appellant, and therefore, as counsel put it, had exposed themselves.

35. This, again, was a matter for the assessment of the jury. They could only act on the evidence in the case, and counsel was not suggesting that they should do otherwise. It is an appropriate aspect of the role of counsel for the prosecution to exhort a jury to do their duty to the community in accordance with the evidence, and it seems to me that although counsel expressed himself in strong terms, and terms which, perhaps, could be regarded as unduly flamboyant at times, he was really, in essence, doing no more than that.

36. The learned trial judge, I think, was sensitive to the flamboyance of certain sections of the address of counsel for the prosecution, and he took pains in his summing up to ensure that the jury did not allow any feelings which might have been aroused by an address in those terms to influence them in discharging their duty. He said:
    "May I emphasise, that you must decide the questions
    that you have heard before you without being influenced
    by anything, other than the law, and on the law, as I
    have explained, I shall direct you. You must not let
    sympathy or dislike or any moral view of people or
    their conduct stand between you and just verdicts upon
    the evidence. You must consider only the evidence that
    has been given before you in this court. What you must
    do is apply your collective common sense to a free and
    frank discussion of the evidence that has been put
    before you in this court, but of nothing else."

37. Later he reiterated the direction that the jury must not let sympathy or dislike or any moral view of people or their conduct interfere with their deliberations, and he went on:
    "That general direction has particular and special
    relevance to this case. There is no evidence before you
    that the accused is of bad character. There is no
    evidence before you that he has committed a criminal
    offence on any earlier occasion. If you dislike bikers
    or members of motor cycle clubs that dislike must be
    cast out of your minds completely. Prejudice and
    stereotyping have no role at all to play in this court.
    Your concern, and your only concern, must be the
    evidence given before you, in this court."

38. I do not think that there is any risk, having regard to the directions which the judge gave the jury, that the language used by counsel in the course of the address would either have conveyed to the jury that the appellant was a man of previous bad character or would deflect the jury from an impartial consideration of the issues arising at the trial.

39. The final ground of appeal was that the verdicts of guilty were unsafe by reason of the verdicts of not guilty which were brought in in relation to counts 3, 4 and 5.

40. In relation to counts 3 and 5, that is to say, the counts of demanding money from Jesse Mazzilli and of assaulting Jesse Mazzilli, it seems to me that the evidence was substantially different from that supporting the first two counts and the different verdicts brought in by the jury were quite explicable on that ground. The evidence in support of the first two counts received some support, perhaps substantial support, from evidence from the mother, from the cousin and from the bank officer as to the source of the moneys which Joseph Mazzilli alleged he had paid to the appellant. There was, of course, no such support with respect to the count of demanding money from Jesse, because on his evidence that money although demanded was not paid.

41. Perhaps, more importantly, the case with respect to the first two counts largely depended upon the evidence of Joseph Mazzilli. The jury may well have formed a favourable impression of Joseph and have been prepared to act on his evidence, especially as it was supported in certain respects as to the source of the money. The situation with respect to Jesse might have been quite different in the eyes of the jury. Jesse had been a member of the Warlords Club. There was evidence from the appellant that he was endeavouring to insinuate himself back into the club. There was some evidence as to his actions during these events which tended to suggest that there was still a degree of collaboration between him and the appellant and other members of the Warlords Club. Not only did he arrange the meetings, but he also participated in the trip to Mobilong when he was clearly co-operating with the appellant and other members of the Warlords Club.

42. The jury, although prepared to place reliance upon the evidence of Joseph, may not have been prepared to rely upon the evidence of Jesse as of itself establishing, beyond reasonable doubt, that the offences against him had been committed. There was no corroboration at all of Jesse's story with respect to the demand allegedly made upon him, nor indeed of the assault committed upon him.

43. The verdict of not guilty on the fourth count being the alleged assault upon Joseph Mazzilli is not as easily explicable upon logical grounds. There is no doubt that Joseph's evidence encompassed not only verbal threats but also the physical assault and in law would have justified and required if that evidence were accepted, a verdict of guilty on the fourth count.

44. As I have observed in other cases, there is danger in applying too rigidly the logic of lawyers to the verdicts of juries. Juries have their own way of approaching the justice of a case, and have their own perceptions as to what justice requires.

45. In the present case the alleged assault occurred at the same time as the verbal threats and was an incident of the menaces which were the subject of the first count. In those circumstances, the jury might have reasoned that the verdict of guilty on the first count sufficiently dealt with the blow which was allegedly struck on that occasion. That may explain the verdict of not guilty on the fourth count. It is also possible, of course, that the jury did not accept the evidence of Joseph completely. They may have been thoroughly convinced of the verbal threats and the demands for money, but may have felt some lingering doubt as to whether Joseph had gilded the lily by stating that he had been physically assaulted. I think that it is idle to speculate as to what led to the jury's verdict on the fourth count. It is sufficient to say there was ample evidence to justify the verdicts of guilty on the first and second count. The verdict of not guilty on the fourth count, does not create, in my mind, any misgivings as to the justice of the verdicts on the first and second counts and I do not think that it would be proper to stigmatise them as unreasonable simply because the jury found a verdict of not guilty on the fourth count.

46. In my opinion all grounds of appeal fail and I would dismiss the appeal.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.