Jones & Ors v The Queen

[2007] HCATrans 418

[2007] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2007

B e t w e e n -

PHILLIP SCOTT JONES, ADAM JON UGOLINI, JASON ROBERT UGOLINI AND ROBERT PAUL UGOLINI

Applicants

and

THE QUEEN

Respondents

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 3.50 PM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with MS J.M. FULLER for the applicants.  (instructed by McGee Solicitors)

MR M.G. HINTON, SC:   May it please the Court, I appear with MR M.A. NORMAN for the respondent.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Yes, Ms Powell.

MS POWELL:   Your Honours, the Crown case in this particular trial was that the eight accused at trial formed a joint enterprise to attack the deceased.  The case was that the plan was put into action by one of the accused, a woman who was referred to in the judgment as “G” making phone calls to the deceased in which she said words about “smashing” the deceased’s home.  Those words were said, it was alleged, as a lure to get the deceased to come to a reserve close by his home where the plan was to attack him as a group.  Aiding and abetting was relied upon as an alternative path to liability apart from the primary path said to be joint enterprise.

The Crown case relied importantly or perhaps totally on the evidence of three important Crown witnesses and they gave evidence of the movements of the various accused both before the move to the reserve area and then two of them gave evidence about what actually transpired at the park when the two groups of men met together and a fight ensued.

GLEESON CJ:   These are the three people referred to in paragraph 3 of your draft notice of appeal on page 516, is that right?

MS POWELL:   Yes, that is right, your Honour.  The reliability of those three Crown witnesses was seriously under attack at the trial.  Can I move, your Honours, first to ground 2 of our application for special leave?

GLEESON CJ:   That is the one covered by paragraph 3?

MS POWELL:   That is right, your Honour.

GLEESON CJ:   The argument that is put against you in relation to that seems to be that, even if as a matter of legal theory you are right, in the circumstances of this case the matter in the admissions of some of the accused that was said to be supportive of these three individuals was ultimately not matter that was in dispute.

MS POWELL:   Not in contention, yes, and that is in, of course, paragraph 19 of the respondent’s outline.  What we say in response to that is that that may have been arguable if, in fact, the judge had directed the jury that the credit of those three particular witnesses was enhanced in respect of those matters only, the matters only that related to the matters not in contention.  However, the directions, if your Honours look at them, were not that these matters simply enhance their credibility on those specific topics, but enhance their credibility generally.  In fact, he said quite specifically that those matters could be brought to account in assessing whether, for example, with respect to the witness Pine – this appears at application book 54, line 27 – the matters were the matters put to the jury which derived from the out-of-court statements or the specific submission –

they are all matters for you to consider, whether you are prepared to rely on any part of her evidence or reject it.

Not just the parts relating to those matters ‑ ‑ ‑

GLEESON CJ:   What page is that again, please?

MS POWELL:   That is page 54, line 27.  Your Honour will see in that whole paragraph there are what his Honour describes at about line 39 as:

five or six matters where her evidence is consistent with proven facts.

I pause there to say his Honour talked about the statements made in the out-of-court statements and the concession made by one of the accused as proven facts:

I repeat, they are all matters for you to consider, whether you are prepared to rely on any part of her evidence or reject it.

So the matters were put up as general enhancement of credit, not specific enhancement of credit.  Perhaps the best example of that being so is what his Honour said in respect of the witnesses Moroney and Collaris at page 79.  Your Honours will see from about line 12 he makes reference to one of the out-of-court statements first of all of Fuller, who was one of the accused, and what he said in his statement about what Adam Ugolini was said to have said.  Then he goes on to say:

You must decide who called out from the evidence of Greg Collaris and Shane Moroney.  Instead, I mention it because Christopher Fuller confirms that part of the evidence of Greg Collaris and Shane Moroney in which they said that they heard someone call out, ‘Fuller, Fuller’.  Evin Andrews –

the other co-accused who made out-of-court statements –

also confirms someone called out ‘Fuller, Fuller’, and to that extent his evidence confirms the evidence of Greg Collaris and Shane Moroney that they heard someone call out those words.

It is a matter for you, ladies and gentlemen, but in light of what is contained in the statements of Christopher Fuller and Evin Andrews, you might well be satisfied that Greg Collaris and Moroney were truthful when they said that someone called out ‘Fuller, Fuller’.

Then it goes on to talk about what happened after Adam Ugolini called out “Fuller, Fuller,” so he seemed to have assumed that that is what happened.  At line 39:

Christopher Fuller admitted in his statement that he stopped on Woodford Road on the edge of the park and got out.  Thus, there is other evidence confirming that Christopher Fuller at least was in the vicinity of Woodford Road.  You will have to determine how many persons came from that car on your assessment of the evidence of Greg Collaris and Shane Moroney and Tabatha Keal . . . 

Those are matters, ladies and gentlemen, which provide something of the factual framework in which you may wish then to consider the issues.

So the out-of-court statements move from being first of all confirmatory of a fact in issue to actually determinative of a fact in issue.

GLEESON CJ:   But was there a dispute that Fuller was there?

MS POWELL:   No, your Honour, but can I say this about what his Honour has done.  There were other matters in the two out-of-court statements of the two accused which were generally confirmative of the evidence of the three prosecution witnesses.  It may well be that from his Honour’s directions about the use that could be made of those out-of-court statements, those other matters which were in dispute may well have been regarded by the jury as confirmatory of those out-of-court statements as well. 

To compound matters, no directions were given.  His Honour having chosen to direct the jury about what was confirmatory within the out-of-court statements, no direction was given to the jury about any use they might use of contradictory matters in the out-of-court statements to balance what we say was the very prejudicial use of the out-of-court material.  It may well be that the jury if they thought these witness’s credibility was enhanced on these topics, it was generally enhanced and, accordingly, we say the evidence would have been used quite impermissibly. 

We say that this is a dangerous judgment standing for the propositions that it does stand for, because it contradicts all the well‑established principles about the use of out-of-court statements in a joint trial.  In our submission, his Honour Justice Duggan in dissent in the Court of Criminal Appeal was correct in his assessment of the misuse of the evidence as directed by the jury.  It is not contentious that the majority was correct in distinguishing between corroboration and evidence in a trial which is supportive of a witness’s testimony.  That was not what the issue in this appeal was about. 

We say the example posed by Justice Bleby – and your Honours might remember that, the video of the red t-shirt – we say that that is not a relevant example of the proposition that the majority were putting forward because the video evidence of the red t-shirt would have been admissible in the trial against the accused in the hypothetical situation that he advances in any event.  We say that there is no concept of additional relevance, which is what his Honour Justice Bleby relies upon, such as to overcome the rule of inadmissibility of out-of-court statements in a trial of a co‑accused.  We say that is a very important principle which this Court should put to rest as not an appropriate way to deal with evidence in a joint trial. 

We rely on what his Honour says, if not in respect of the matter involving the “Fuller, Fuller,” that your Honour the Chief Justice drew to my attention, but certainly insofar as the assessment of the witness Pine is said to be capable of being enhanced in respect of any part of her evidence by those matters.  There is simply no way of assessing what use the jury made of that.  Whether they made that suggestion of enhancement across the board, whether they took other pieces out of the out-of-court material and thought that that was enhanced also and, in our submission, it is a serious error of law which is contrary to well-established principle.  Your Honours’ associates did not put on the lights for me, so I will have to just – perhaps your Honours could tell me when you have had enough.

GLEESON CJ:   Have you made some corrupt arrangement with the associates not to put the lights on?

MS POWELL:   I would have liked to have thought that, your Honour, but I just looked down and realised I got lucky, but I do not think it means I have endless leeway. 

Can I move to ground 3, because, in my submission, this is the other ground which we rely upon in this application where his Honour Justice Duggan was in dissent with the majority of the court.  The issue raised on this ground is really that where you have a trial involving multiple accused and where you have what might be called different pathways to guilt, not only with respect to different pathways to guilt of all of the accused but you have different pathways to guilt between the accuseds themselves – and we say with the growing tendency to provide written directions on the law to juries, and I think in this particular case it was described by the Court of Criminal Appeal as a decision tree which is sort of if yes, go here, if no, go there – and we provided that in the very lately provided appeal book 3 and that looks worse than it is, because in fact the decision trees were identical with respect to each of these four applicants and we simply put it before the Court to demonstrate how the tree was said to work – and then when a judge simply does not put how the facts are to be applied to the principles in respect of some of those different pathways to guilt, then we say that that is an error. 

All of the judges in the Court of Criminal Appeal were agreed that the facts in respect of joint enterprise liability were adequately put by the learned trial judge.  The difficulty arose in the law relating to extended joint enterprise and to aiding and abetting.  No directions were given to the jury at all in respect of extended joint enterprise, but then again there were no facts in the case which could have admitted a liability on that basis.  It was joint enterprise, it was aid and abet or it was nothing.  Although it is not a specific ground of appeal, we pause to say that I think it was the New South Wales Court of Criminal Appeal which criticised this.  I think it was Tange’s Case, the constant leaving of extended joint enterprise when it cannot really apply to the facts of the case. 

In any event, that was left, if you like, hanging in the air for the jury with no assistance despite the fact that it appears in the decision tree.  It would have been left hanging for them, not knowing quite what they should do with it.  In fact, your Honours will see that there are two questions which are posed by the jury, the first one appearing at 261 of application book 1.  That appears at line 23:

FOREPERSON:   Regarding joint enterprise, if there is a joint enterprise to go to the park for a fight and it is a number of people in that joint enterprise and that is what they have the agreement on, that they are going for a fight, if there is a difference in understanding about what the fight entails, the difference in the amount of the force that can be used, is that a completely mutual joint enterprise or can there be a joint enterprise within it?  Can there be a sub‑understanding belonging to part of that group but not all of it?

One might think a very perspicacious jury from that question.  That question was not answered.  There was a lot of legal argument as to the correctness of how that question should be answered.  Before his Honour had time to bring the jury back in and what was a very extended summing‑up with a lot of argument in between time – I think it went through a weekend and over about three sitting days – at page 278 they came back with another question:

If there is a spoken agreement about a joint enterprise amongst a group of people, but one of the group has a different perception of the scope of the enterprise, is he judged on his perception of the scope of the enterprise?

Obviously the jury were perplexed by this notion of extended joint enterprise.  The answers that they were given – and the answers appear on page 293 – was simply to direct the jury back to the decision tree.  In our submission, those two questions demonstrate that the lack of the application of the law to the facts in respect of each of the cases is demonstrated by those two jury questions and the inadequacy of simply taking them back to the principles of law in the decision tree.

Perhaps the most unusual matter of all was the direction with respect to aid and abet and the fact that there is no assistance given to the jury in respect of how that applied in the case of each individual accused.  A good example of that is the direction with respect to the applicant Adam Ugolini where the judge simply told the jury that the Crown case was that his liability arose as a principal, an aider and abetter or both.  There was no attempt to assist the jury as to how the differences in that liability might arise in his factual situation. 

There was a further complication that there was one of the eight accused called Matthew Andrews – the jury failed to reach a verdict with him – and in his case, although there was a Crown witness who said that he saw him punch the deceased and there was a witness called who alleged a confession made by him subsequently, for some reason the Crown did not leave aid and abet in his particular case.  It was simply that they did not choose to rely on that, whereas with respect to the all the other accused, except for the girl “G”, who there is no evidence that she went to the park, aid and abet was left.

In our submission, that would have been extremely confusing for the jury, because the jury might have thought, “Well, there is evidence that he punched, but they are not leading aid and abet.  Perhaps we can find something less than a punch in respect of the other accused which would amount to aid and abet, because we know that there is evidence that he punched, but that is apparently not good enough”.  In our submission, that would have left the jury confused about what conduct they did have to find for aid and abet.  If we assume for a moment that the jury did not find joint enterprise – and perhaps there is good reason for making that assumption

given that the jury could not convict Matthew Andrews, the one where aid and abet was withdrawn – perhaps they convicted on aid and abet principles with respect to these four applicants.

GLEESON CJ:   Thank you, Ms Powell.

MS POWELL:   Have I finished my time?

GLEESON CJ:   You have had it.

MS POWELL:   Can I simply then rely upon our written submissions in respect of ground 1.

GLEESON CJ:   Certainly.  Just before we go any further, we will not take any matter after the adjournment application in Hall & Ors v City of Burnside before 9.30 tomorrow morning. 

Mr Hinton, the matter on which we would like to hear submissions from you is the matter raised by the ground in paragraph 3 on page 516 of the application book which is the argument that Ms Powell led off with, what she called in her written submissions her second ground.

MR HINTON:    If the Court pleases.  Your Honour the Chief Justice was quite correct in your summation of the respondent’s submission when your Honour said that it is put against Ms Powell that even if she is right in the circumstances of this case the matter of the admissions said to be supportive of credibility is ultimately not in contention.  That is the respondent’s argument.  As a consequence of it not being in contention this, in my submission, is not a case that warrants special leave.  The answer to your Honour the Chief Justice’s question was that that would be a sufficient answer.  However, the trial judge went beyond just inviting the jury to consider the confirmatory evidence with respect to those specific issues.  The Court was then taken to the paragraph in the application book at page 54 and following that to page 79.

It is important, in my submission, in dealing with this ground of appeal that firstly we get a feel for the construction of the summing‑up.  The paragraph that the Court was taken to at page 54 of the first application book is the final paragraph of two and a half pages devoted to the evidence of Ms Pine.  Ms Pine did not go to the park.  She saw a number of the men that went to the park where the affray occurred, Mr Male died, before and after.  That paragraph comes after the learned trial judge has dealt with criticisms of her reliability.  So it is not as though it is left hanging there and it is not as though it is anything more than an invitation, an example, of how you might go about assessing her credibility, looking for things that are confirmatory. 

It does not, therefore, in my submission, that paragraph, have the affect that because she is confirmed in these three respects, she is therefore a reliable witness.  She was a hostile witness and the trial judge took time to explain what that meant.  She admitted to being on antidepressants and having been on antidepressants for some time.  So the learned trial judge took time to explain what that meant for the jury.  He cautioned them on page 52 of the application book to scrutinise her evidence with considerable caution, minded of her mental state.  He also alluded to a number of criticisms at page 53 that defence counsel made of her evidence.  So in trying to assist the jury as to what to make of her evidence, we get that paragraph at page 54 that refers to the admissions. 

In my submission, an acid test as to whether or not special leave should be granted in this case would be to ask, what if the trial judge had said to the jury, “Ladies and gentlemen, in assessing the credibility of Ms Pine, you might like to conclude that there were three vehicles at the park; Mr Male’s, Mr Fuller’s, and Mr Ugolini’s.  It is a matter for you, ladies and gentlemen, but there is really no dispute about that.  Three cars were there, and you might like to take that into account in assessing her reliability”.  Now, had the learned trial judge said that, there could be no complaint.  That was a factual matter that was open.  There was no dispute that those three cars were there.  It has the same effect as what he invited them to do.  “You can further test the subsequent paragraphs in assessing credibility, ladies and gentlemen.  You might to conclude that each of the accused were present in the park.  Again, it is a matter for you, ladies and gentlemen, but there really appears to be no dispute about that”.  Again, had the trial judge said that, it would have had the same effect as the way in which he dealt with the out-of-court admissions made.

The second paragraph that my learned friend took the Court to was at page 79 of application book 1.  Again, in my submission, it is important to understand the construction of the summing‑up when one comes to this paragraph.  It is important because, having looked at the three important prosecution witnesses, Ms Pine and the two men that were in the park, Mr Moroney and Mr Collaris, the trial judge attempts to assist the jury further by providing them with a framework of what he called uncontroverted facts against which they could then consider the issues in dispute. 

The framework commences at page 58 of the application book and concludes at page 79 with the paragraph my learned friend took the Court to.  So there is the better part of 20 pages, there was a break in between, devoted to identifying for the jury what was, in effect, not in dispute.  It is there in the course of setting out that framework to assist the jury that the learned trial judge refers to Mr Fullar’s admission, “Fuller, Fuller”, to the

presence of Jason Ugolini as admitted by him, the presence of Mr Fuller as admitted by him and the presence of Mr Andrews, as admitted by him.  So again what the learned trial judge is attempting to assist the jury with, is issues not in dispute, particularly at this part of the summing‑up.

There were two further paragraphs that were impugned.  One at page 58, which is not a direct use of an out-of-court statement but could be taken as inviting it, and the second, again it falls within the framework that the learned trial judge seeks to provide the jury with, at pages 74 to 75.  In my submission, applying that acid test, as I have called it, it becomes clear that this is not a suitable vehicle in which to consider this question.  It is not a suitable vehicle because the real issues that are teased out by the question will not arise for consideration. 

Ultimately, what was in dispute was none of these issues.  In fact, the defences were self‑defence, the possibility of other assailants in the park, albeit that all four men were there, that there was no joint enterprise, that “this was a case of macho bullshit”, that there was a confrontation between two groups resolved by the resort to weapons but with no original intention to do so, a confrontation where things went wrong.  In essence, people targeted the existence of a joint enterprise that included the possibility, probability, of causing grievous bodily harm and disputed its existence. 

So to the extent that the trial judge may have invited the jury to use evidence impermissibly in bolstering the reliability of Ms Pine, Mr Moroney and Mr Callaris, in my submission, it could not have given rise to a miscarriage of justice such that this is not a suitable vehicle.  If the Court pleases, those are my submissions. 

GLEESON CJ:   Thank you.  Yes, Ms Powell.

MS POWELL:   Your Honours, those framework of facts appearing at the pages that my friend suggested were not all not in contention.  Very much in contention was how the affray began, who did what, and those are matters referred to.  We say simply, for evidence to be admissible as enhancing it has to be admissible in the case of the accused.  We are not disputing that there was other evidence on those matters called, but as Justice Duggan said at page 434 of application book 2, and we particularly rely on what he says at 35:

If the out of court statements in the present case were capable of providing support or confirmation of what was said by the prosecution witnesses, there are a number of other statements in the interviews which could provide similar support for their evidence.

We just cannot tell whether that enhancement of credibility seeped into all of the evidence they gave or was confined to those five or six matters that his Honour referred to, adding to it the rider that that could give general support and enhancement to credibility.

GLEESON CJ:   While we consider that there is legal merit in the proposition of law underlying the proposed ground of appeal in paragraph 3 of the draft notice of appeal at page 516 of the application book, in the facts and circumstances of the case we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

AT 4.22 PM THE MATTER WAS CONCLUDED