Mamae v Regina

[2002] NSWCCA 352

CITATION:	Mamae v Regina [2002] NSWCCA 352
FILE NUMBER(S):	CCA 60691/01
HEARING DATE(S):	21 & 23 August 2002
JUDGMENT DATE:	23 August 2002
PARTIES :	Junior Vaa Mamae v Regina
JUDGMENT OF:	Hodgson JA at 67, 69; Simpson J at 68; Smart AJ at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70029/01
LOWER COURT JUDICIAL OFFICER :	Taylor AJ

COUNSEL :	(A) D Dalton (R) L M B Lamprati
SOLICITORS:	(A) Nikola Velcic & Associates (R) S E O'Connor
CATCHWORDS:	Verdict of guilty of manslaughter unreasonable and not supported by the evidence.
LEGISLATION CITED:	Nil
CASES CITED:	M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 Fleming v The Queen (1998) 197 CLR 250
DECISION:	Appeal allowed - Conviction quashed - Verdict of acquittal entered.

HODGSON JA

SIMPSON J

SMART AJ

Friday, 23 August 2002

REGINA v JUNIOR VAA MAMAE

JUDGMENT

1. SMART AJ: The appellant, Junior Vaa Mamae, appeals against his conviction of the manslaughter of Pieter Izak Hage (the deceased) and seeks leave to appeal against a sentence of imprisonment of 6 years with a non-parole period of 4 years. He was acquitted by the jury of murder.

2. The appellant complains that two of the judge's directions were inadequate and that he erred in not giving the jury a direction that the Crown had to accept the evidence of Jason Young beyond reasonable doubt. He also complains that the verdict was unsafe and unsatisfactory, that is, it was unreasonable and not supported by the evidence. As this last point has much substance it will be necessary to refer to the evidence in some detail. This point will be dealt with first.

3. Introduction

The Crown alleged that during the evening of Friday 14 July 2000 the deceased was at the St Marys Band Club drinking alcohol and placing bets. About 11.30 pm he left the Club and went to the Midnight Pizza Shop. He ate a pizza and fell asleep. He was woken and left the shop about 12.10 am. He was walking home. These facts were not in issue. The Crown alleged that when he reached the corner of Edgar Street and Mamre Road, St Marys he was assaulted by Jason Young and the appellant. Jason Young punched the deceased several times to the head. When he fell to the ground Young kicked the deceased several times to the lower body. The extent of that punching and kicking was in issue. The Crown alleged that the appellant kicked the deceased several times in the head area. This allegation was very much in dispute at the trial. Indeed, it was the central issue.

4. About 1.20 am on Saturday 15 July 2000 a resident of Edgar Street St Marys noticed the body of a person lying on the footpath on the northern side of Edgar Street near the corner of Mamre Road. She called the police.

5. Dr D Little, the pathologist, found a lot of bruising, abrasions and lacerations on the deceased's body predominantly around his head. There was evidence of some haemorrhages around and inside the brain which indicated some trauma to the brain but she thought that the haemorrhages were not severe enough on their own to cause death. Dr Little thought that the cause of death was multifactorial. The deceased was suffering from heart disease. His heart was enlarged and he had slowing of the arteries. He had a blood alcohol level of 0.285. She thought that the trauma associated with the head injuries caused stress upon the diseased heart and with the high blood alcohol reading brought about the death of the deceased. Dr Little said that the recent injuries to the deceased were consistent with him having been punched and/or kicked and that at least eight blows were required to produce the injuries. There was no issue at the trial that the attack upon the deceased and the injuries he received contributed substantially to his death. There was no issue as to causation.

6. As to murder the Crown stated that it did not rely upon intention, only on what is known as "felony murder." The Crown alleged that the joint attack was accompanied by an intention to rob the deceased and that he sustained violence in part perpetrated by the appellant which substantially contributed to his death. The jury were instructed that if they were not satisfied that the assault which caused the death of the deceased occurred during the commission of the crime of assault with intent to rob then they could consider manslaughter as an alternative verdict.

7. As to manslaughter, the Crown alleged that the appellant and Young "jointly attacked the deceased and that the assault was unlawful and dangerous and a substantial cause of death." In acquitting the appellant of murder, the jury was not satisfied beyond reasonable doubt whether the appellant, when he allegedly jointly attacked the deceased, had the intention to rob him.

8. The appellant contends that the single issue at the trial on the alternative verdict of manslaughter was whether or not the appellant participated in the assault by kicking the deceased to the left shoulder and neck region. His case was that while he was present he did not participate in the assault or the attack. Putting it another way there was no dispute as to these elements of manslaughter:

" 2. The assault upon Mr Hage was unlawful and dangerous.

3. That Mr Hage died and that a substantial cause of his death was the assault upon him."

9. The element of manslaughter which was in dispute was:

"1. Jason Young and the appellant jointly attacked Mr Hage at St Marys on 15 July 2000."

10. During the summing-up the judge directed the jury that before it could return a verdict of guilty of manslaughter it had to be satisfied beyond reasonable doubt that the appellant joined in the attack on Mr Hage by kicking him.

11. There is no doubt that Jason Young attacked the deceased, punched him and kicked him. He was originally charged with murder. He pleaded guilty to manslaughter and received a reduced sentence because of his undertaking to give evidence against the appellant. As the appellant was acquitted of "felony - murder" I shall not refer to the facts that bear upon the alleged intent to rob and that the corporal violence was for the purpose of robbing the deceased.

12. The Crown Case

The Crown case as to what took place at the scene of the assault at the corner of Edgar Street and Mamre Road and the appellant's involvement depends upon the following:

(a) The evidence of Jason Young as to his presence and that of the appellant at the scene of the assault, he (Young) punching the deceased and kicking him when he fell to the ground and the appellant joining in kicking the deceased. Jason Young was correctly described by the judge as the linchpin of the Crown case. Without his direct evidence the prosecution would fail. He was the only person who gave evidence as to what happened, apart from the accused.
(b) The evidence that Young had told Andrew Vella that the appellant had joined in when he (Young) was kicking the deceased on the ground. (This was not alleged to have been in the appellant's presence).
(c) The evidence of Andrew Vella that the appellant stated while they were working in Newcastle in the second week after the incident that he (the appellant) had thrown the clothes he was wearing on the night of the attack over a bridge and that he "was splashed with blood from the bloke that Jason hit." This disposition was said to indicate that not only was the appellant present but that he had a guilty mind because of participating in the attack by kicking Mr Hage, (The bridge was thought to be the one on the F3 Freeway which spans the Hawkesbury River).
(d) The lies by the appellant to the police during his record of interview. The Crown alleged that these dealt with material matters and evidenced a consciousness of guilt. The Crown also relied on the admissions he made during that interview as to ancillary matters.
(e) The evidence of the appellant placing himself at the scene of the assault.
(f) The evidence of Mr P M Hommel and that of Mr T H Eisenhuth, both aged about 18 at the time of the trial. They were walking along Mamre Road towards their homes at St Clair on the opposite side of the road to a middle aged man (the deceased). Both heard some noise (a punch or a scuffle) and looked or turned around. They saw a middle-aged man and two young men, one a blond man (Young) and a shorter dark man (the appellant). Mr Hommel saw the blond man punch the middle–aged man about three times. The darker man was looking up and down Mamre Road, a main road. There was about 1½ to 2 metres between the two younger men when the middle-aged man was being punched. Mr Eisenhuth saw the blond man punch the middle-aged man. At one stage he saw the darker man take a step forward towards the younger man. The area of the attack was well lit. Mr P M Hommel verified that the men they had seen were those shown on a nearby service station video. Young and the appellant had been captured on that video that night shortly before the attack. The appellant agreed he was depicted in the video.

13. In an electronically recorded interview the appellant denied participating in the assault upon the deceased or being present at the time of the assault. He admitted that he had attended the RSL Club with Young that evening and that he walked with Young to the Quix Service Station. He claimed that he drove his car to the home of a person known only to him as "Stinky" who lived near the RSL Club. The appellant said that Stinky drove himself and Young to the RSL Club. The appellant later walked to the Quix Service Station where Stinky picked them up and drove them to the St Marys Band Club - Colours. Colours was the Club's disco.

14. It is necessary to refer to the evidence of Jason Young in more detail. He said that on the night of 14 July 2000 he was picked up from his house by the appellant in his car. Belinda and Helen were already in the car. They went to Helen's house where the appellant left his car. The four of them walked from her house to the RSL Club about 9 pm. He and the appellant left about midnight, having arranged to meet the girls later at the Band Club. He and the appellant walked to the nearby Quix Service Station where they stayed three or four minutes. He was depicted in the Service Station's video along with the appellant, taken a little after midnight. He and the appellant walked up Mamre Road intending to go to the Band Club. When they reached the corner of Edgar Street he (Young) saw the deceased whom he had not known previously. He thought the deceased said something to him so he hit him with his right fist twice to the side of his face. Young said that the deceased fell to the ground and that he kicked him twice, once to the stomach and once to the right thigh. He then said in examination in chief (T67):

"Q. What do you say that Junior Mamae did to Mr Hage?
A. Kicked him.
Q. He kicked him. How may times did Junior Mamae kick Mr Hage?
A. I think twice.
Q. To what part of Mr Hage's body did Junior Mamae kick Mr Hage?
A. The shoulder area.
Q. Which part of the shoulder area?
A. Around here (indicating)
Q. You are indicating the neck?
A. Yeah
Q. The front of the neck area?
A. Is that what you saw?
Q. And when did Junior Mamae kick Mr Hage in relation to you kicking him
A. When I kicked him.
Q. What do you mean by that, at the same time?
A. Yeah at the same time
Q. Were you both kicking at the same time?
A. Yes"

15. Young said that they were both standing on the Mamre Road side of Mr Hage and that neither he nor the appellant did anything else to Mr Hage. He crawled a couple of metres and they walked off to the Band Club. Young said that he and the appellant were blind drunk when they assaulted Mr Hage.

16. Young was cross-examined on his record of interview with the police by counsel for the appellant. Young agreed that he told the police that he was not sure how many times the appellant had kicked Mr Hage. Young did not answer the police question where the appellant had kicked Mr Hage. Young agreed that there was nothing he said or did beforehand which would have let the appellant know that he (Young) was going to hit Mr Hage. Young said that he saw the appellant kick Mr Hage.

17. Young was reminded of his answers to the police in his recorded interview:

"Q. So the first kick that Junior kicked him, where did that connect, where did that kick connect?

A. I wasn't really watching.
Q. Okay, what about the second kick?
A. Like I seen him kick him here, like the shoulder area, towards the neck.

Q. Towards the ---
A. Neck, like in – between here."

18. On being pressed by the cross-examiner Young repeatedly agreed that he did not actually see the appellant kick Mr Hage. Young had assumed that because the appellant was standing near the head of Mr Hage that he had kicked him. The appellant had never told him (Young) that he had kicked Mr Hage.

19. After this series of answers, which conflicted with what Young had previously said, the Crown was given leave to cross-examine Young. Young agreed that he had said to Vella, a fellow employee, during a trip to Newcastle on the Monday after the attack, that he thought that he had killed someone and that the previous Friday he had hit and kicked the person he bumped into. Young said that he did not remember saying to Vella "Then I started kicking him and when he was down Junior joined in." He agreed that in chief he had stated that he had said that to Vella. Young agreed he had changed his evidence. He was not trying to help the appellant. Young's explanation for his earlier evidence was that he thought that Junior had joined in kicking the deceased. The relevant difference was between what he thought and assumed and what he actually saw.

20. Young was next referred to the evidence he had given at his sentence hearing as to what he said to Vella on that trip to Newcastle after telling him that he had hit the deceased (T156):

"Q: And then you told Mr Vella that you started kicking this man that you had hit?
A: Yes.
Q: And when this man was down Junior joined in?
A: Yes
Q: And what you told Mr Vella about this assault on the man by you and Junior Mamae that was the truth, wasn't it?
A: Yes."

21. Young agreed that in his evidence in chief on the appellant's trial he had given evidence to the same effect, Young insisted that he was unsure if the appellant kicked Hage. He agreed that he had not said anything about being unsure when giving his evidence the previous week. (That is, in chief)

22. Young was further cross-examined that he had said the following to the police in his recorded interview with the police (T 157-160):

"Q31: Can you tell me what happened after you hit Mr Hage twice?
A: I kicked him in the stomach and the other person who was with me kicked him as well."

(Young agreed that the other person with him was the appellant)

"Q: Could you just speak up so that it can be recorded.
A: I kicked him and then the person that was with me kicked him as well

Q316: … and do you know what he [the deceased] was mumbling.
A: No.
Q317: Okay so what happened after that
A: After that Junior kicked him a few times
Q: How many is a few
A: Two or three
Q: And where did Junior kick him
A: Like from the shoulder upwards
Q: So the first kick that Junior kicked him where did that connect?
A: I wasn't really watching.".

23. This passage then appears in Young's cross-examination (T160-161):

" Q: What I suggest to you is this, that when you gave the answer 'I wasn't really watching' when you were asked the question whether you saw Junior Mamae's first kick connect you, at that stage, were kicking Mr Hage. That's correct, isn't it?
A: Yes.
Q: And that's why you said in this interview to Mr Seymour that you weren't really watching, and you couldn't say then whether the first kick of Junior's connected with Mr Hage. That's what you were saying, wasn't it?
A: Yes.
Q: And that's true, isn't it?
A: Yes.
Q: And then Mr Seymour at 321 asked you this: 'What about the second kick?' And your answer was this: 'Like, I seen him kick him here, like the shoulder area towards the neck'. That's what you said, isn't it?
A: Yes.
Q: You said that you saw him, that is Junior, kick him to the shoulder area towards the neck. That's what you said, isn't it?
A: Yes.
Q: And that is true, isn't it?
A: No.
Q: No? Well if that answer is untrue why did you say that to Mr Seymour?
A: Don't know.
Q: Don't know. Let me suggest this to you, that your answer to Mr Seymour is the truth and you have changed your evidence now. What do you say?
A: No.
Q: Can you give me any explanation why you told Mr Seymour that you saw Junior Mamae kick Mr Hage to the shoulder area towards the neck when you didn't?
A: Because I was scared and I didn't want to get the blame for the whole lot.

Q: Scared, and you didn't want to get blamed for the whole lot?
A: Yes.
Q: So you told Mr Seymour that you had seen Junior kicking Mr Hage when you really hadn't at all; is that right?
A: Yes.
Q: So you set out to deliberately deceive Mr Seymour; is that what you say now?
A: Yes.
Q: See I suggest this to you, that you told Mr Seymour the truth then. What do you say?
A: No.
Q: And I suggest to you that you are lying now. What do you say?
A: No"

And this further passage (T162-T163):

"Q: Well, do you remember also when you were giving evidence last week in your sentencing I asked you whether what you told Mr Seymour in the interview about this assault was the truth?
A: Yes.
Q: Yes. And you said it was?
A: Yes.

Q: You had the opportunity last week, when you were giving evidence on oath, to say 'No. Some of the things I said in the interview to Mr Seymour are not true', didn't you?
A: Yes.

Q: You had the chance then, didn't you?
A: Yes.
Q: But you didn't say anything, did you?
A: No.
Q: You wanted the judge who was sentencing you to give you as much credit as possible for giving evidence at this trial. That's right, isn't it?
A: Yes.
Q: And you wanted the judge to think that you would give evidence at this trial that Junior Mamae kicked Mr Hage; that's right, isn't it?
A: Yes.
Q: And now you have got your credit you have changed your story, haven't you?
A: Yes.
Q: Why?
A: Don't know."

24. The Crown Prosecutor also referred Young (T169) to the evidence which he gave at his sentencing hearing:

"Q: Did you kick this man to the head at all?
A: No.

Q: When the man was on the ground you saw Junior Mamae kick the man didn't you?
A: Yes
Q. And was that to an area that you describe from the shoulders upwards?
A. Yes."
Young agreed that he had given that evidence.

25. Young confirmed that he had said that he had had a lot to drink during the night he assaulted Hage and that he had described his condition as blind. He stated that he had not told the truth to Det Seymour in his recorded interview. He agreed that he had told Det Seymour that he was a little bit drunk but he still knew what he was doing. Young said that what he said to Det Seymour about his state of sobriety was not true. Young's explanation for the falsity was that he thought that if he said he was blind drunk it would make things worse.

26. As to the answers Young had given in cross-examination by counsel for the appellant the Crown Prosecutor put these questions and received these answers (T171):

"Q: Isn't this what you were saying there, that you were blind, did not know what you were doing, and you did not see Junior Mamae kick Mr Hage but you assume that he did because of where he was standing, correct?
A: Yep
Q: And also say, as part of that, that you were blind, didn't know what you were doing. It's one of the reasons on why you say you assumed Mr Junior Mamae kicked Mr Hage, correct?
A: Yep.
Q: It all goes together, doesn't it--

A: Yep."

27. These further passages appear in the Crown Prosecutor's cross-examination (T172):

" Q: You have said this, haven't you, that you understand that word 'assume' to mean that you think someone did something but not sure. Correct?
A: Yep.
Q: I am then asking you, in relation to this assault, what was it that makes you assume that Junior kicked Mr Hage?
A Cause of where he was standing.
Q: Where was he standing
A: Near the head and shoulder area.
Q: Near?
A: The head and shoulder area.
Q: What made you assume then that he kicked Mr Hage if he was standing near the head and shoulder area?
A: I don't know."

28. Young said that apart from the appellant standing near the head and shoulders of Hage there was nothing that led him (Young) to assume that the appellant had kicked Hage.

29. In further cross-examination by counsel for the appellant it emerged that he had been told at the time of his sentencing proceedings he was going to be called as a witness whether he agreed to give evidence or not. He repeated that what he told Det Seymour about seeing the appellant kicking the deceased was not true and that he was trying to shift some of the blame. Young stated that when he said the appellant was at the head and shoulders of the deceased he (Young) meant that the appellant was somewhere on his right.

30. There was other material in the cross-examination of Young by counsel for the appellant that Young was not a witness of truth. His evidence (T80-82) as to the reasons he gave his Colorado boots to Vella on the Monday or Tuesday after the assault on Hage were fanciful. (These were the boots Young had worn at the time of the assault). His insistence that two punches from him when he was blind drunk knocked down Hage, a man six feet tall and weighing 87 kilos, was also fanciful. Young said nothing to the appellant about what he was going to do.

31. At various points Young was anxious to assert that he did not kick the deceased around the head. He was obviously aware that this was where the deceased had suffered serious injuries which precipitated the stress to his diseased heart. Although Young was the principal aggressor he was, at earlier points and when he was being sentenced, anxious to infer that the appellant was responsible for the major injuries. It was blatant self-interest asserting itself and in a way which was none too subtle.

32. A study of the evidence of Young and particularly his cross-examination by counsel for the appellant and the Crown reveals that his evidence is of little value, that it was not sufficient to satisfy any reasonable tribunal of fact that what he said as to the appellant kicking or not kicking the deceased was true and certainly not beyond reasonable doubt.

33. Young claimed that in his initial interview he was scared and wanted to shift some of the blame for the assault to the appellant. He said that he persisted in the story he had told the police to get the lowest sentence possible. All that is credible. Then when he is tested in cross-examination by counsel for the appellant and in the appellant's presence Young agreed that he did not see the appellant kick Hage He was confronted with his answer to Det Seymour that he was not really watching and could not say where the kick landed. His evidence as to how drunk he was could only be described as unsatisfactory. It was not in Young's interests to resile from what he had said to the police, at his sentencing hearing and in his evidence in chief.

34. Counsel for the appellant relied on the evidence of Dr Little that the deceased was probably struck at least eight blows (T120) and she indicated each of the areas where the blows were struck and the minimum number of blows which must have been struck in each area. She agreed that in one area (injury 5) the injury received could have been caused by a fall (T122). This meant that there must have been at least seven blows.

35. Counsel also relied on the evidence of P M Hommel that he looked around when he heard someone being punched. It sounded like one punch. He saw one man being punched, a blond man throwing the punches and a dark man standing there. Mr Hommel saw Young punch the deceased three times, the first punch being to the lefthand side of the deceased's jaw, the second punch being to the neck on the right side and the third punch being to the deceased's head but he was "not sure exactly". Thus there were four punches. This description of the punches corresponds reasonably well with the injuries noted by Dr Little to the head and neck area.

36. Mr Eisenhuth turned around after hearing a scuffle. He saw Young push the deceased into a fence and then fall backwards. As Young stood up the deceased stepped forward and the appellant took a step forward towards the deceased. After that Mr Eisenhuth saw Young with his right hand punch the deceased to the left side of his face. This one punch pushed the deceased back. The deceased was still on his feet. This punch fits in with the injury seen by Dr Little to the left side of the deceased's face.

37. It was Young's improbable evidence that he had punched the deceased but twice before he fell to the ground. It must be accepted that Hommel and Eisenhuth only saw a small portion of the incident and did not see what happened after the deceased fell to the ground. However, the punches they saw Young throw would account for at least some of the major injuries to the head sustained by the deceased.

38. The Crown submitted that this Court should take a broad view of the evidence and not an over-refined one. However, there is no substitute for a careful analysis of the evidence. It is obvious that Young was endeavouring to minimise what he did. The evidence of Messrs Hommel and Eisenhuth further undermines Young's credibility.

39. Little weight can be attached to the alleged statement by Young to Vella to the effect that the appellant kicked the deceased. I have earlier referred to the unsatisfactory and unreliable nature of Young's evidence and, of course, at the trial he denied that he had said words to this effect to Vella.

40. As earlier mentioned the Crown relied on the evidence of Andrew Vella. It was not in dispute that Young had given Vella the Colorado boots Young had worn at the time of the assault. Vella said that Young also gave him the Billabong shirt which he was wearing at that time. Vella said he lost the shirt.

41. Vella said that sometime during the second week after the incident while he was working with the appellant at Newcastle they had a conversation to this effect (T233 & T244):

" Appellant: Did you see me chuck the clothes over the bridge?
Vella: No. I didn’t see you chuck them over What clothes?


Appellant : The clothes I was wearing that night with Jason
Vella: Why did you chuck them?

Appellant: I was splashed with blood from the bloke that Jason hit."

Of course, the appellant could have been splashed with blood whether he had merely been present as he contends or had participated in kicking the deceased as the Crown contends.

42. Vella said that he asked "What bridge" and that the appellant told him. Vella said that he could not remember the name of the bridge but the appellant told him that it was the bridge before the weighbridge. There was only one weighbridge which is one or two kilometres after the bridge.

43. Vella had travelled to Newcastle in a truck with Young alone. The appellant had travelled with his brother in a different truck to Newcastle. They travelled to Newcastle about 2 to 3 am as their work was done mainly during the cooler part of the day. Vella said that when he went up to Newcastle he did not see the appellant with any clothes other than those he was wearing. Vella did not take any notice whether the appellant was carrying a bag or anything like that.

44. Vella's cross-examination was revealing. On 1 September 2000 the police came to Vella's home with a search warrant and took the Colorado boots. Vella went down to the police station where the police explained to him about withholding evidence and concealing crimes and that it was important that he told the truth. Vella said that he told the police everything he knew about what he had seen and heard. He made a statement that day. He had nothing to tell the police about the appellant except that he knew the appellant and what he looked like; that included the clothes he was wearing. Vella said that he was asked if the appellant was involved in the attack and replied "No. Don't know." He was mainly concerned about Young and did not remember what the appellant had said.

45. Vella said that about a month later some police officers came to his house and asked if he knew anything about the appellant, did he remember anything more? He replied, "No" as he did not remember anything about the appellant. On this occasion the police had been waiting for him to come home and were talking to his parents.

46. Vella said that he was later telephoned by Det Seymour who said that they knew about the clothes being chucked over the bridge Vella said that he denied knowing anything about this. Det Seymour told him to come down to the police station. Vella did so.

47. Vella said that the police stated that they had been told that he knew more and that they had received a telephone call from Flemington Markets that Vella knew about the appellant chucking clothes over the bridge on the way to Newcastle or Tamworth. Vella said that jogged his memory. It is not entirely clear when this conversation took place. It could have been when the police called at his house or on the telephone or subsequently. Vella denied that during the conversation he was again told that he could be charged with withholding evidence.

48. When regard is had to the evidence which Vella gave at the trial and at the committal proceedings there is some confusion as to the exact sequence of events. At the committal proceedings Vella said:

"And he (Seymour) told me to come down to the station and then I kept denying it [about the appellant chucking clothes over the bridge] because I didn't remember."

49. At the committal proceedings Vella said that two police officers, on an occasion in October 2000 when they spoke to his parents, told him that he could get locked up for two years if he was withholding evidence. He also said that he could not remember anything being said about the appellant's clothing.

50. Vella attended at the police station on 26 October 2000 and made a second statement. He said that at the police station Det Seymour said to him that the police knew that he knew about clothes from the appellant that had blood on them. Vella said that the police said this before he said anything about blood on clothes. Vella said that while at the police station Det Seymour produced a map or street directory (or other document) and between the two of them they worked out the name of the bridge. Det Seymour showed Vella where the bridge was. Vella said at the committal proceedings that he was pretty sure that the appellant had said it was the bridge before the weighbridge.

51. Vella confirmed that until the alleged conversation about the clothes the appellant had said nothing to him about the incident and had never mentioned that he (the appellant) had been involved in anything at all. Vella said Young had told him about the incident when they were talking alone. Vella said that while the two trucks travelled to Newcastle at the same time the truck in which he was travelling was about 300 metres behind the other truck.

52. Det Seymour said that he was the senior police officer investigating the circumstances in which Hage met his death on 15 July 2000. After taking Vella's second statement on 26 October 2000 he arranged for police divers to search the river near the bridge. Nothing was apparently found.

53. Det Seymour said that at the time he "invited" Vella to come down to the police station, Vella still had not remembered anything. Det Seymour said that Vella was hesitant at first in relation to providing information. Det Seymour said that he told Vella that he (Seymour) had received information indicating that he had specific knowledge of clothes in relation to the appellant. Det Seymour said that he pointed out to Vella that he faced possible prosecution. Det Seymour denied that he told Vella anything about the source of his information, that is, he did not say that he had a call from Flemington Markets. Det Seymour said that he recalled speaking to Vella about the markets but that was in terms of his employment. If Det Seymour is correct this highlights the capacity of Vella to misunderstand what is being said to him.

54. The alleged statement by the appellant of blood on his clothes is neutral in the context of this case on the critical issue of whether the appellant kicked the deceased. All it does is tend to support that the appellant was present at the scene of the incident. That is not in issue. Further, the evidence itself is of poor quality. The remark relied upon apparently came out of the blue. Despite being pressed earlier Vella did not purport to remember it until the police officer mentioned blood on the clothes and told Vella that he faced possible prosecution for withholding information.

55. It is difficult to see how the jury could attach any weight to the disposition of the clothes as evidencing consciousness of guilt. It is readily understandable why if the clothes were splashed with blood the appellant would wish to dispose of them to avoid suspicion falling on him, even though the mere presence of blood on his trousers did not in the circumstances advance the Crown case.

56. The Crown relied heavily on the lies told by the appellant to the police at his initial recorded interview on 1 September 2000. At that time the appellant had been arrested for murder and told by the police that Young had been arrested and had stated that the appellant was present with him when an assault had occurred in the early hours of Saturday, 15 July 2000 on Mamre Road, St Marys. The appellant agreed that he had been to the RSL Club on 14 July 2000 with Young and that he was shown in the Service Station video. He said that he had too much to drink. He was not really intoxicated and "not all that drunk". Young had been drinking but he did not know whether Young was intoxicated. The appellant did not know how long he was at the Club. He estimated that he had about 15 or 16 schooners of beer. He felt "all right" and stayed in the disco. He said that when he left the RSL Club he and Jason walked to the Quix Service Station. He said that after they left they waited for five minutes and then they were picked up by a man called Stinky, who drove them to Colours. Stinky went home and they went inside. Stinky was an invention.

57. In the latter part of the interview when the police put to the appellant that Young had nominated the appellant as being present with him when he assaulted the deceased on Mamre Road at 1 am the appellant replied that he was with Young but he did not know what the police were talking about. The appellant insisted that he did not kick the deceased while he was lying on the ground. The appellant said he was not with Young at any time during the night when he was involved in any type of fight with anyone. The only fight he had was an argument with his girlfriend. The appellant said that Young was with him all night.

58. Deliberate lies were told on matters of importance. The real question is whether they evince a consciousness of guilt. The appellant was adamant that, despite what Young was alleged to have said, he had not kicked the deceased. The Crown case depended in the present case on the appellant having done that. The appellant was naturally guarded about what the police told him that Young had said especially after he had been arrested for murder. It was understandable also in this context that the appellant would deny his presence. Even though he did not play any part in the attack, according to him, he would be concerned about being wrongly implicated, and the position of Young. He had not told his parents. While the importance to be attributed to the lies was a matter for the jury, it was in the present case, in any event, a weak reed. It certainly did not make up for the poor quality of the other Crown evidence in this case.

59. The Crown also placed some reliance on what happened in relation to the later production of some clothes, said to be those worn by the appellant on the night of 14 July 2000 and the mistake by the appellant as to the jumper worn on the night and his failure to correct the mistake in his evidence in chief. The mistake was adequately explained. When he was asked questions in chief he was asked a global question about the clothes and he did not explain the correct position as to the jumper. When asked about the matter in cross-examination the appellant corrected the position as to the jumper and brought in the correct jumper the following day. This point adds little if anything to the Crown case.

60. In his evidence the appellant said that he had had a lot of beer to drink at the RSL Club. He said that at the scene of the assault he did not touch or kick the deceased and that he was about 1½ to 2 metres from the deceased when he fell down. The appellant said that Young punched the deceased more than four times and kicked him when he fell down. The appellant said that he never threw his clothes over the bridge and that he never told Vella that he had. The appellant was cross-examined extensively by the Crown. He adhered to his earlier evidence that he was not involved in any attack on the deceased, that he had not thrown any clothes from a bridge and that he had not said that he had. He said that he had lied to the police because Young had told him not to tell anybody about what he had seen. He did not want to get Young into trouble. The appellant said that he did not lie to protect himself. Of course, if he did not participate in kicking the deceased he did not need to protect himself other than from false allegations and incorrect charges.

61. The foregoing summary and analysis of the evidence and a careful consideration of the evidence as a whole leads to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant kicked the deceased. Further, a reasonable jury must have had a reasonable doubt about the accused's guilt. There is a significant possibility that an innocent person has been convicted. The evidence of Young was very unreliable and unsatisfactory and obviously untruthful in many areas. Much of his evidence could not be accepted with any confidence unless corroborated. His ultimate position was that he had not seen the appellant kick the deceased. His earlier evidence read as if he was trying to save his own skin and reduce the period he spent in gaol.

62. Vella's evidence was neutral as earlier explained. It also had unsatisfactory features. The evidence as to "chucking" clothes which had blood on them came after persistent policing, reminders of possible prosecution and direct suggestions. Vella had previously said there was nothing. The problem in the present case lies in the poor quality of the critical Crown evidence.

63. The case as to consciousness of guilt based on lies was not strong. Further, the medical evidence and that of Messrs Hommel and Eisenhuth was neutral as against the appellant.

64. The verdict was unreasonable and not supported by the evidence. See M v The Queen (1994) 181 CLR 487 at 492-5; Jones v The Queen (1997) 191 CLR 439 at 450-452; Fleming v The Queen (1998) 197 CLR 250 at 255 et seq. In reaching the abovementioned conclusions full allowance has been made for the jury having the advantage of seeing and hearing the witnesses and the jury being the primary tribunal charged with the responsibility for deciding the facts and determining whether the accused was guilty or not guilty.

65. In these circumstances it is not necessary to deal with the other grounds of appeal.

66. I propose that the appeal be allowed, the conviction quashed and a verdict of acquittal entered.

67. HODGSON JA: I agree. I would only add that in my opinion the circumstance that the appellant produced to the Court a jacket, which it seems highly probable was the jacket which he wore on the occasion, throws further doubt on the evidence concerning disposing of the clothes over a bridge.

68. SIMPSON J: I also agree with the order proposed, with the reasoning of Smart AJ and with the additional remarks of the presiding Judge.

69. HODGSON JA: The orders of the Court are as proposed by Smart AJ.

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