R v Andrews (No 2) - [2005] SASC 301

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v ANDREWS & ORS (No 2)
Reasons for Rulings of The Honourable Justice Debelle
5 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Application for separate trials – eight accused – inadmissible evidence against one or more particular accused – such inadmissible evidence prejudicial to one or more accused – whether prejudice curable by direction – whether material would lead to unfair trial of certain accused – interests of justice – relevant principles – applications dismissed.
R v Harbach (1973) 6 SASR 427, applied.
R v Glover (1987) 46 SASR 310; Leaman v The Queen (1987) 28 A Crim R 104; R v Middis (unreported, Supreme Court of New South Wales, Hunt J, 27 March 1991); R v Patsalis (No 1) (1999) 107 A Crim R 432, discussed.
R v Grondkowski & Malinowski [1946] KB 369; R v Assim [1966] 2 QB 249; R v Demirok [1976] VR 244; R v Darby (1982) 148 CLR 668; R v Giordano (1982) 33 SASR 161; R v Oliver (1984) 57 ALR 543; R v Collie (1991) 56 SASR 302; R v Baartman (unreported, Court of Criminal Appeal of New South Wales, No 60499, 6 October 1994); R v Fernando [1999] NSWCCA 66; R v Georgiou [1999] NSWCCA 125; McAuliffe v The Queen (1995) 183 CLR 108; R v Andrews & Ors [2005] SASC 15; R v Andrews & Ors (No 3) [2005] SASC 298, considered.

R v ANDREWS & ORS (No 2)
[2005] SASC 301
Criminal: Reasons for Rulings

DEBELLE J Four accused applied for a separate trial. I dismissed the applications. These are my reasons for doing so. The bulk of the reasons was dictated at an early stage in the trial. Although I have only recently settled these reasons, I have not altered the tenses of the first draft.
The accused NG, Phillip Jones, Jason Ugolini and Robert Ugolini each apply for separate trials. They do not apply to be tried alone. Instead, each applies to be tried separately from Evin Andrews, Matthew Andrews, and Christopher Fuller. In other words, if they succeed in their applications, there will be one trial of Evin Andrews, Matthew Andrews and Fuller and a second trial of NG, Phillip Jones, Adam Ugolini, Jason Ugolini and Robert Ugolini. The last three accused are brothers.
These four applications all give rise to the same question, namely, whether the nature and quantity of evidence admissible against Evin Andrews, Matthew Andrews and Fuller but inadmissible against each applicant would result in such a degree of prejudice to that applicant that it is necessary to order a separate trial. There is no issue between the prosecution and each applicant as to the relevant principles. The debate is essentially concerned with the application of those principles to the evidence the prosecution intends to lead. As will be seen, the degree of prejudice to each applicant resulting from the admission of inadmissible evidence varies as between them.
The Relevant Principles
At the outset, I note the principles identified in R v Harbach (1973) 6 SASR 427 at 432 and affirmed in R v Collie (1991) 56 SASR 302 at 307 – 308.
1.When two or more accused are charged with committing a crime jointly, prima facie there should be a joint trial.
2.A joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be going before the jury.
3.A joint trial may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other.
I note also the reasons for a joint trial expressed in R v Demirok [1976] VR 244 at 254 and affirmed in R v Collie (supra) 308 – 309. Those principles have been consistently applied in this State.
In R v Glover (1987) 46 SASR 310 at 312 King CJ expressed the view that in the interests of justice, it is, generally speaking, highly desirable that accused charged with committing a crime jointly should be tried together. He said:
I take the view that where two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for jurors to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give way to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences ought to be tried together.
As His Honour held in R v Collie (supra at 309), these principles have not been modified by the views expressed by the High Court in R v Darby (1982) 148 CLR 668. The principles have greater force where a number of persons are jointly charged with offences arriving out of an affray: R v Assim [1966] 2 QB 249 at 261.
The advantages of a joint trial were stated in these terms by Neasey J in Leaman v The Queen (1987) 28 A Crim R 104 at 106 – 107:
The advantages in the public interest of persons jointly indicted being tried jointly are variously stated, but they have a common theme. This is, that it is highly desirable that one jury should be able to see and hear together in the same trial all the principal persons involved, so as to obtain an overview of the evidence as a whole and of the persons … for example, Grondkowski; Hoggins’ case; Lake; Moghal; Assim and Josephs – all English cases. In Australia and New Zealand: see Beavan; Palmer’s case; Harbach; Demirok; Gibb; Ditroia; Kerekes and Iremonger’s case; see also M Weinberg, “Joint Trials – The Problem of Reciprocal Blame” (1984) 8 Crim LJ 197. Undoubtedly an important consideration in the practice thus described is the view that it is not in the interests of justice that parties jointly indicted should, by being tried separately, have the opportunity thrown open to each to try to exculpate himself by throwing blame on the other or others in their absence. (Citations omitted)
(Although Neasey J was in the minority, Underwood J at 116 agreed with these observations.) The reasons of King CJ in R v Glover and R v Collie are grounded on like considerations.
Notwithstanding these principles, the critical, if not the overriding, question is whether a joint trial will lead to injustice against one or more of the accused. No accused should be deprived of his right to a fair trial.
The mere presence of evidence admissible against one accused but inadmissible against another is in itself not sufficient to require separate trials. What must be demonstrated is that there is such a quantity of inadmissible material or that the effect of the inadmissible material is so damaging or prejudicial to an accused that separate trials are required. See generally Harbach at 434 – 435; Leaman at 108. The inadmissible evidence may be so prejudicial that a separate trial is imperative: R v Glover at 312; R v Collie at 310.
The interests of justice are the paramount consideration. The expression “the interests of justice” does not mean only the interests of the accused: R v Grondkowski& Malinowski [1946] 1 KB 369 at 372. Although the interests of justice obviously require regard to be had to the interests of the accused, it is the interests of justice as a whole which must be considered as paramount: R v Giordano (1982) 33 SASR 161 at 163. The goal is a fair trial.
The question of prejudice was examined in R v Oliver (1984) 57 ALR 543 and in R v Middis (unreported, Supreme Court of NSW, Hunt J, 27 March 1991). In the later decision Hunt J expressed the principles in these terms:
Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
I do not understand this passage necessarily to require an accumulation of each of these three factors. Each case must be considered on its facts and positive injustice may result from one of those factors or a combination of them. Hunt J explained the requirement of positive injustice in this way. As some prejudice is inevitable in any joint trial, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which, if it arises, would result in positive injustice to him. These remarks of Hunt J have been approved by the Court of Criminal Appeal in New South Wales in Baartman (unreported, Number 60499 of 1994, 6 October 1994); Fernando [1999] NSWCCA 66; and Georgiou [1999] NSWCCA 125. In R v Patsalis (No 1) (1999) 107 A Crim R 432, Kirby J noted that the formulation by Hunt J in Middis does not exhaustively state the circumstances in which a court should order a separate trial. The touchstone, he said at 435, must of necessity remain general, namely, is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co‑accused?
These same issues were expressed in these terms by Neasey J (with whom on this point Underwood J agreed) in Leaman at 108 – 109 and at 117. When considering whether to order a separate trial, the trial judge must determine whether the prejudicial effect of the inadmissible evidence is capable of being adequately neutralised by appropriate instructions to the jury:
A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(1)Will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? And
(2)Is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?
Other factors relevant to the decision whether to grant separate trials include
·the policy of the law to reach finality as expeditiously as possible and to avoid the repeated trial of the same issues except where the interests of justice so require, and
·the convenience of witnesses.
See R v Demirok at 254 and R v Collie at 308 – 309.
In this case consideration of the convenience of witnesses is relevant. One witness was suffering from a psychiatric condition before the affray on 2 March 2002. That condition continues. She is also the de facto wife of one of the accused. She applied pursuant to s 21(2) of the Evidence Act1929 to be exempted from the obligation to give evidence. I refused the application: R v Andrews (No 3) [2005] SASC 298 It is plainly desirable that, if at all possible, she be required to give evidence once only. However, notwithstanding the importance of that consideration, I do not think it can in the particular circumstances of this case prevail over the question whether positive injustice might result from a joint trial.
The Prosecution Case
Before dealing with each application, it is convenient to set out a brief summary of the prosecution case.
The accused are all charged with the murder of Darren Male on 2 March 2002. The prosecution alleges that Darren Male died as a result of injuries received when he was bashed by a group of men at Elizabeth late on the night of 2 March 2002. Male had gone to his house with two friends, Shane Moroney and Gregory Collaris, because he had been telephoned by a woman called NG telling him that it was being damaged. When they arrived at his house, they found it was not being damaged. Male parked his car on an access road near a park. When he got out of it, he was set upon by five men and severely bashed. Shortly after, another group of men arrived, and at least two of them bashed Male. Male was severely injured. He died on 4 March at the Royal Adelaide Hospital as a result of those injuries. The prosecution case is that the first group of men to attack Male comprised the accused Evin Andrews, Phillip Jones, Adam Ugolini, Jason Ugolini and Robert Ugolini and that the two in the second group who bashed Male were Matthew Andrews and Christopher Fuller. NG is also charged with murder. The prosecution case is that these accused were engaged in a joint enterprise to cause grievous bodily harm to Darren Male or to kill him. In the alternative, the prosecution says that some of the accused acted as accessories to the joint enterprise.
The proper consideration of some of the applications requires an understanding of some of the detail of the prosecution case. At the risk of some repetition, I set out some aspects of the prosecution case in greater detail.
At about 10.30 pm on Saturday, 2 March 2002, Darren Male was at the house in which he resided at 182 Woodford Road, Elizabeth North. With him were Rebecca Gray and her friend Tahnee Trenton. While they were there, the accused NG rang Rebecca Gray on her mobile telephone and asked her to put Darren Male on the telephone. Male spoke to NG. Rebecca Gray heard Male say, “No, you’re not going to touch my house” and then “No, I haven’t done anything wrong”. A little later he said, “No, you’re not going to touch my house, my stuff or me”. He then ended the telephone call.
Shortly after that call, Male went with Rebecca Gray and Trenton to a house at Craigmore in which a friend, Shane Moroney, resided. They arrived at about 10.30 pm. Moroney was asleep. Also present in the house were Collaris, and Moroney’s partner Lorinda Hembury. While they were there NG rang Rebecca Gray again and said words to the effect, “If Darren’s home, tell him to come out the front otherwise his home is going to get smashed. We’re on the corner of Woodford Road.” She then ended the call. Rebecca Gray told Darren Male about the content of the call. A short time later Rebecca Gray’s telephone rang again. It was NG, who told Ms Gray, “They’re smashing the house up.” Ms Gray could hear banging in the background. Ms Gray told Male about this call. She also informed him of an SMS message which arrived a short time later which said, “I’m on the corner of Woodford.”
Male woke Moroney and, shortly after, he, Moroney and Collaris left Moroney’s house together in Male’s Holden Commodore motor car. As they left, Moroney picked up a piece of wood about six feet long and broke it in half. He took both pieces of wood into Male’s car. Male drove back to his home at high speed. He stopped in front of his house. No one was present. Male then drove a short distance, turning right into Whitsbury Road, and then into a service road which comes back towards Woodford Road and finishes opposite Male’s house. He turned his engine off. According to Moroney, another car was parked about two and a half car lengths in front of Male’s car. Moroney got out of Male’s car with one of the pieces of wood. Male got out from the driver’s seat. Collaris also got out of the car.
Five men got out of the car in front of Male’s car. They were carrying pieces of wood, metal and baseball bats. The prosecution case is that the accused Robert Ugolini, Adam Ugolini and Philip Jones got out from the passenger side of that car, and Jason Ugolini from the driver’s seat of that car. Another person wearing a yellow sweater got out from the rear driver’s side of the car. On the prosecution case that person was Evin Andrews. This group came towards Darren Male and Moroney. Adam Ugolini, who had a piece of wood in his hand, said to Moroney, “Shane, stay out of it. It’s got nothing to do with you.” Robert Ugolini had a metal baseball bat in his hand. Moroney grabbed the baseball bat from Robert Ugolini and threw it away. After he had done so, Moroney saw Male on the ground and three of the men raining blows on or near Male’s head. The prosecution case is that those three were the accused Jones, Jason Ugolini, and Evin Andrews. Moroney then heard the name “Fuller” called out more than once. He looked and saw another group of five to seven males, with one in front of them, coming from the direction of Male’s house. The prosecution case is that the person leading this group was the accused Fuller and that this group included the accused Matthew Andrews. The prosecution case is that all of the male accused struck Darren Male more than once and at different times. Moroney attacked the group which was bashing Darren Male, but he backed away, ending up in the car park of the Red Lion Hotel close by. Some of the group returned and struck Male. On the prosecution case they were Evin Andrews, Robert Ugolini and Matthew Andrews. After the group had caused damage to Male’s car, they all left the scene. I will refer to this incident when Male was bashed as “the affray”.
Factors Favouring Joint Trial
Two factors strongly point to the conclusion that there should be a joint trial. The first is that the trial arises out of an affray involving all of the male accused, the deceased Darren Male, and the Crown witnesses Collaris and Moroney, in which, it is alleged, Darren Male was bashed in the head so severely that he later died from those injuries. It is alleged that all of the male accused were involved in bashing Darren Male. The events happened quite quickly and essentially at one location. They are, therefore, closely related to one another in time, place, circumstance and as to the individuals involved in the affray. In addition, there is evidence which, if accepted, is capable of proving that the accused acted in concert and had one objective only, namely, to bash Darren Male. They did not intend to assault either Collaris or Moroney. These are factors pointing to the desirability of a joint trial.
The second is that it appears that an attempt has been made to cast the blame on to one person only for the killing of Darren Male. Two of the accused, Evin Andrews and Christopher Fuller, have each made statements to the police which in more than one way and by more than one remark have sought to cast upon the accused Phillip Jones the culpability for the bashing of Darren Male. Each of their statements is plainly admissible against each of them and, equally plainly, is inadmissible against and highly prejudicial to Jones. Those statements are in large part inconsistent with the evidence of the only two prosecution witnesses who participated in the affray, Collaris and Moroney. The effect of the evidence of Collaris and Moroney is that several persons including Jones bashed Darren Male. Moroney’s evidence is to the effect that all of the accused, except Matthew Andrews and NG, were involved in the bashing. The prosecution case is that Andrews and Fuller each seek to distance themselves from the crime and lay the responsibility upon Jones. Thus, it appears that an attempt has been made to blame one person for the killing of Darren Male. That question also gives rise to the possibility of inconsistent verdicts should separate trials be ordered. That is a further reason for a joint trial.

It is a corollary of the above that the jury should be able at the one trial to see and hear all those principally involved in the affray. If there is any further attempt to cast blame on any one individual, the jury will be able to weigh that with the evidence of all other principals involved.
The Prejudicial Evidence
I turn to examine the nature and extent of the evidence which is admissible against Evin Andrews, Matthew Andrews and Fuller but is inadmissible against each applicant and to consider whether it is so prejudicial that it requires separate trials. That task will be assisted by considering first the admissible evidence against all accused.
The Evidence Admissible Against All Accused
There is quite a considerable body of evidence which is admissible against all accused. The prosecution case against all accused is to a large extent based on the evidence of the witnesses Rebecca Gray, Rachel Pine, Gregory Collaris and Shane Moroney. Rebecca Gray gives evidence of telephone calls from NG. In those calls, a female, who Rebecca Gray believes to be NG, tells Rebecca Gray to inform Darren Male that his house is being damaged by a group of people who are at the corner of Woodford Road. She also proves that Male spoke to the person she believed to be NG. Tahnee Trenton and Lorinda Hembury give like evidence. They all state that Male left shortly after the last call.
Rachel Pine has made a declaration in which she has stated that she saw all of the accused gather at the house of Fuller at 19 Stone Road, Elizabeth Downs not long before the affray. She saw a group comprising each of the three Ugolini brothers, Jones and NG leave in one car and, shortly after, another group including Fuller, Evin Andrews and Matthew Andrews leave in another car. She said that, before the accused left the area, her de facto husband Evin Andrews had told her that there was going to be a fight. She saw Adam and Jason Ugolini each carrying a piece of wood about a metre long. She did not see whether Robert Ugolini was carrying anything. She saw the accused Jones swinging a baseball bat. She later saw all of the accused return. She said that they all seemed pretty shocked. She then gives evidence of statements made by individual accused which, of course, is admissible only against the maker of the statement. According to her, Adam and Robert Ugolini and Jones were saying, “What have we done, what have we done.” She said that Adam Ugolini and Jones told her that there was a guy on the ground who might be dead. According to her, they said that he was not moving and that they might have killed him. She saw that Jason Ugolini was limping. She added that NG also told her that a person might be dead. Later that night, after she had gone to bed, Evin Andrews came back to her house. He told her there had been a fight near the Red Lion Hotel and that there was a guy on the ground who was not moving. The prosecution alleges that the evidence of Ms Pine assists in establishing a joint enterprise to attack Darren Male with the intent to kill him or cause him grievous bodily harm.
The witness Moroney was involved in the affray. He has given several statements to police. Moroney states that about 11.20 pm Darren Male had asked him to go to Male’s house because someone was smashing it up. They drove extremely quickly to the house with Collaris but saw nothing. They then drove to the park near the Red Lion Hotel. They all got out of the car and the affray began. He gives evidence of the affray. He has identified all three Ugolini brothers and Phillip Jones, not only as participants in the affray, but also as persons who bashed Darren Male. Some ten weeks later, he identified Evin Andrews and Fuller as two other persons who also bashed Male.
The prosecution witness Gregory Collaris was also involved in the affray. He made several statements to the police, the effect of which is as follows. He was at Moroney’s house on the relevant night. He heard Rebecca Gray speaking on the phone to a person whom Rebecca Gray identified as NG. The caller then spoke on the telephone to Darren Male, who was at Moroney’s home. A little later Darren Male received another call. Male said that someone was smashing his house. He went with Male and Moroney to the house and then to the park. Collaris saw six men get out of the car. He recognised Adam Ugolini and Phillip Jones. His description of the driver matches the description of Jason Ugolini. He said he saw Adam Ugolini and Phillip Jones bashing Darren Male while Male was lying on the ground. He also saw Robert Ugolini striking Male. Collaris also said that Adam Ugolini first approached him and Shane Moroney and said, “Shane we don’t want you involved. Stay out of it.” Collaris also said that at one stage Adam Ugolini was calling out, “Fuller, Fuller, Fuller”, a fact which Moroney can also prove. He saw the driver of the other car also striking Darren Male. He describes how others were hitting Male on the head with baseball bats and other weapons and were also kicking him.
One witness saw the affray from a short distance. She was a Ms Sellars who lived diagonally opposite the park. She saw a number of persons raising and lowering weapons but she was unable to identify individuals. She saw the assailants drive away.
That is the effect of the evidence which is admissible against all accused.
Other Evidence
There is other evidence which on its face is proof only against one or two accused. The prosecution relies on it to build a complete picture. I will not list it all. It includes expert scientific evidence that Male’s blood was detected on the shoes of Jones and on the jeans worn by Jason Ugolini. There is evidence from Telstra concerning records of phone calls made that night. It includes evidence of Mr Tony Clay Smith, who made a statement to police in which he describes events which occurred when the cars returned to Stone Road. Mr Smith complements the evidence given by Rachel Pine concerning the return of the cars. In March 2002 he resided at 21 Stone Road, Elizabeth Downs, which adjoins the dwelling in which Fuller lived and was opposite the dwelling occupied by Rachel Pine and Evin Andrews. He states that about midnight on 2 March 2002 he was woken by the sound of a car stopping quickly. He heard some commotion and a young man calling out, “Get the gates, get the gates”. He went to his bedroom window which is at the front of the house. He heard the sound of gates being opened or closed. He saw two men walking across Stone Road from the direction of the dwelling occupied by Ms Pine and Evin Andrews. He recognised one whom he later identified to be Matthew Andrews. Matthew Andrews was walking with another shorter man, whom he described as about five feet six inches tall and carrying a baseball bat. The prosecution case is that that other person was Robert Ugolini. Mr Smith heard this shorter man say to Matthew Andrews, “I could see the splits opening up on his head”.
There are also statements of Ms Keal and Mr Jeromin which are capable of proving that both Evin Andrews and Matthew Andrews were near the park.
It will be obvious to the jury that evidence of this kind is proof only against particular individuals. In any event, I propose to give directions to that effect.
To summarise. There is evidence capable of proving that all accused left and returned to Fuller’s house at times consistent with being involved in the affray and evidence of telephone calls made by NG shortly before the affray which caused Darren Male to go to the place where the affray occurred. Apart from the evidence to be given by Collaris, the evidence of Moroney is capable of proving that all of the male accused other than Matthew Andrews bashed Darren Male.
If there is a joint trial, the jury will also hear inadmissible evidence against each of the applicants from statements to the police made by the accused Fuller and Evin Andrews as well as from admissions by Evin and Matthew Andrews to other witnesses. I set out the effect of the evidence which is inadmissible against each applicant.
Statements made by Fuller to Police Officers
Fuller participated in two long interviews with the police. The first was on 6 March 2002 and the second on 7 March 2002. I have ruled that evidence of both interviews is admissible against Fuller: R v Andrews [2005] SASC 15.
Early in the first interview, Fuller asked the interviewing officer if “the boy who did this” has “already coughed himself in”. The police officer properly did not answer the question. There is nothing in that part of the interview which identifies any persons. On two occasions later in the interview (at pages 21 and 23) Fuller said that he was told by the father of the Ugolinis that his sons had not done it but “the other one you have in custody” did it. Although Fuller said nothing in this interview which identified Jones by name, that statement when linked with other evidence, might cause the jury to believe that the person described as the boy “who has coughed himself in” and the “other one you have in custody” is Jones. In addition, although Fuller did not name Jones, he described the person who assaulted Male as “a tall skin head who had a baseball bat”. The jury might link that description with Jones because, on another occasion in this interview, Fuller linked this person with the person who had admitted responsibility. I, therefore, proceed on the footing that in the first interview, Fuller implicated Jones as the person responsible for the death of Male.
A more significant aspect of the first interview is that Fuller does not name any of the participants in the affray. Instead, he said that he did not recognise any of the assailants or those being hit, save for one person whom he might have seen before but cannot name. Everyone, he said, was a stranger. Fuller said that he saw Robert Ugolini in the park and later heard him yelling for help when he was being chased by others. There is nothing in his first statement to the police which implicates any of his co-accused in the bashing of Male.
In his second interview Fuller expressly implicated Jones by name and it is the second interview which constitutes the greatest prejudice to Jones. The second interview colours the first and so it is necessary to proceed on the footing that Fuller implicates Jones as the person responsible for the death of Male in both the first and second interviews. Each interview contains evidence which is inadmissible against Jones.
In his second interview, Fuller recounted the events before, during and after the affray. Fuller named all of his co-accused as being present save for Matthew Andrews. However, the effect of this statement is that Jones is the only person responsible for the bashing of Darren Male. According to Fuller, those present at the affray were Adam Ugolini, Jason Ugolini, Robert Ugolini, Jones and Evin Andrews but no one other than Jones was involved in the bashing of Male. He said that NG was standing in the park but does not place her close to the affray.
I set out with a little more detail the effect of this second interview. Fuller stated that a group of five persons, being the three Ugolini brothers, NG and Jones came to his house late on 2nd March, that there had been talk of trouble with some fellows the night before which involved NG, that NG was speaking on her telephone to “the group from last night”, that the three Ugolini brothers, NG and Jones had driven off together saying they were going to the home of the person to whom NG had been speaking on the telephone, that they were going to meet and have drinks at the Red Lion Hotel after going to the house, that he and Evin Andrews left a short time later to go to the Red Lion Hotel, that they saw a blue Commodore motor car chase the car driven by Jason Ugolini, that the cars stopped and that the driver of the blue car got out and approached Jason Ugolini and assaulted him with a large piece of wood. Fuller said that he later saw Phillip Jones standing over the assailant of Jason Ugolini with a baseball bat. He said that Jason Ugolini was not holding any kind of weapon. He said that he started to drive away when he heard either Adam or Robert Ugolini calling, “Fuller, help. Fuller, help”. He parked his car and went back to the park but stood back from the fight and made sure that Adam and Robert Ugolini were “all right”. He saw Phillip Jones standing over an unconscious man. He saw Jones hit him with a baseball bat. He stated that he said to Jones, “What have you done?” but Jones did not reply. He then drove home. Later in the interview, he admitted that Evin Andrews was in his car.
Fuller also recounted that he drove back to his house and that the three Ugolini brothers, NG and Jones returned in the other car, that they came into his house, that he saw blood on Jones’ baseball bat, and that he said to Jones, “You’ve done it this time”. According to Fuller, Jones did not reply.
As already noted, Fuller named Jones as the person who bashed Darren Male and said that he did it with a baseball bat. He said that he saw Jones hit Male once only, although a short time earlier in his statement he said that he saw Jones hit Male “one more time”, plainly implying at least two blows. On at least six occasions, he said that he saw Phillip Jones standing over Darren Male. On three occasions he described Jones as the person who hit Darren Male. On two occasions in his statement he says that when they returned to his home, he said to Jones, “You’ve done it this time”. At the conclusion of his statement he said that that he told Jones that Jones should admit his involvement. The concluding part of his statement contains other material which is very prejudicial to Jones. It is convenient to set it out in full.
Q.    Earlier in the conversation you told me that you spoke to Phillip Jones.
A.    In the cells.
Q.    In the cells?
A.    Yes.
Q.    Can you tell me what you spoke about?
A.I asked him why, because I was told on the Monday by Ugolini’s father that Phillip had handed himself in and he had spoken to the duty solicitor and everything was sorted out. I got locked up here I found out that no such statement was ever made, when [sic] put Phillip in the cells with me I asked him what was going on, he said that he had given his statement to his lawyer and that his lawyer would be keeping it … until later on in the case, until they have more evidence that it was self defence or something like that. I said to him well look you’ve got to give them your statement otherwise their [sic] just going to keep the other three of us until you have admitted that it was you, he said that his lawyer won’t release it or something like that and that Adam and Robbie will just have to live with it until then, until the lawyer decides to hand in his statement. But he also said he made a statement to the duty solicitor at the courts on the Monday and Mr Ugolini said he witnessed that.
Q.    Did he tell you what he put in that statement?
A.    No. No but in the one to the lawyer he did.
Q.    What did he tell you about that?
A.That the fellas hit Jason he returned the lethal force and he told them that he, he told them that I never entered the park, that I was only a witness to the situation, which is all in his statement and he said that N [NG] and Adam had also said the same thing, so he didn’t know why I was locked up in here.
Q.    Did he say anything further about the statement he made?
A.    No.
Q.Did you have any further conversation with him about the incident on Saturday night?
A.Other than he had better dob himself in or he was going to be in a lot of trouble. No.
Q.    So any further conversation with him about anything?
A.    Not really.
Q.    How long was he put in the cell with you for?
A.A good hour, hour and a bit. I just told him he had better get used to the idea of being locked away. He said he is, he knows he did it.
Q.    He said that?
A.    Yep.
Q.    Do you know what his exact words were?
A.    Well I’m the one that did it so I better get used to the time now.
S/SERGEANT KELSO
Q.Did he say anything to you about why he hit the bloke after he was lying in [sic] the ground unconscious?
A.    No, no. I was angry that they put him in the same cell as me actually.
Fuller’s statement is plainly inadmissible evidence as against Jones and is very prejudicial to him. It also contains evidence which is inadmissible against and prejudicial to Adam, Robert and Jason Ugolini as well as Evin Andrews.
The Statement of Evin Andrews to Police Officers
On 18 April 2002 Evin Andrews participated in a long interview with police. The statements made in that interview are in substance to much the same effect as those made by Fuller.
Andrews stated that he was present at the affray but took no part in it. He stated that the three Ugolini brothers, Fuller, Jones and his brother Matthew Andrews were also present. Like Fuller, he lays all of the responsibility for the bashing of Darren Male upon Jones. That last sentence is qualified only by the fact that he states that Jason Ugolini also struck Male at the beginning of the affray. He said that Male and Jason Ugolini confronted each other, that Male struck Jason Ugolini with a large piece of wood causing Ugolini to fall to the ground, that Ugolini got up and hit Male with a stick, and that that blow must have been “pretty solid” because it caused Male to fall to the ground. Andrews had also stated that Robert Ugolini took a metal baseball bat to the affray.
Evin Andrews said that the fight was arranged by NG, describing her as the instigator. He said that Male had been “scheming on” NG, and that had caused the fight. He said that he did not know there was going to be a fight until he saw that it had started when he arrived together with Fuller and his brother Matthew Andrews at the place where the affray occurred. He said that, as they arrived, he heard Adam or Robert Ugolini call out, “Fuller, Fuller”. Fuller then stopped his car and that he with both Evin and Matthew Andrews got out of the car. He then saw Jones go over and hit Male in the head twice with a pretty solid bar. He related that he then said to Fuller and his brother, “Let’s get out of here” and they drove away. He said that he did not see anyone else hit Male. He also said that he could hear Robert Ugolini but could not see him, that Adam Ugolini was in the bushes with one of Male’s friends on top of him, and that he (Evin Andrews) was unarmed.
Andrews recounted how they all returned to Fuller’s house. He said that Jason Ugolini had driven one car back to Fuller’s house in which his brothers Adam and Robert were passengers, together with Jones and NG. He said everyone was bragging about what they had done, that Jones was bragging and had said something about blood all over the ground, that Robert Ugolini had said words to the effect, “We got that fucking bastard”. He added that he thought Adam Ugolini was also bragging about what had happened. He said that Jason Ugolini had a scratch on his head and that one of his legs was injured. He said that Jones had disposed of his weapon and that Robert Ugolini had been carrying a metal baseball bat but he did not see him hit Male with it. He said that the only persons he saw standing near Male were Jason Ugolini and Jones. His statement that he did not know that a fight was being planned does not ring true with a later part of his statement when he said that, at Fuller’s house before the fight, he had heard the three Ugolinis saying that they were going to beat up “the guys” from last night. He said that Jones and NG also were involved in that conversation.
The statement of Andrews, like those of Fuller, contains inadmissible evidence against all accused other than Fuller and Evin Andrews as the maker of each statement. The evidence is prejudicial to those other accused. The degree of prejudice varies as between each of those other accused.
Evidence of Other Witnesses

There is also evidence from six other witnesses which is admissible against either or both Evin Andrews and Matthew Andrews but is inadmissible against the applicants. The following is a summary of the statements of those witnesses.
Statement of Marc Ferrone dated 17 March 2002
Ferrone said that he overheard Matthew Andrews say on 2 March 2002, “Mate, they clubbed him to death”, and that Matthew Andrews told him, “A guy got beat up last night” at the Red Lion Hotel. Later, Fuller had told him that “he would be alright because the guy was going to own up” to the courts or to the police. This evidence is clearly admissible only against Matthew Andrews but is inadmissible and quite prejudicial evidence against the other accused.
Statement of Rachel Pine made on 16 March 2002
In her statement Rachel Pine said that Evin Andrews had told her shortly after the affray, “Phillip hit this guy with a baseball bat”. She also stated that Evin Andrews had then told her that Jason Ugolini had been the first to hit the guy on the ground and that he had hit him with a baseball bat. He had told her that there was going to be a fight and that he would go to the fight if needed. This evidence is plainly admissible against Evin Andrews but inadmissible against the other applicants It is very prejudicial to both Phillip Jones and Jason Ugolini. However, it is to the same effect as the statement made by Evin Andrews to the police. The jury can be directed not to use this evidence against Jones and Jason Ugolini and the direction will receive added force because it will be repeated when evidence of Evin Andrews’ statement to the police is given.
Statement of Anthony Vella made on 13 April 2002
Vella said to police that, a day or two after the death of Male, he spoke to Matthew Andrews on the telephone and Andrews told him that he was there when someone was bashed who had later died. Andrews said, “Yes, I was there with Phillip, Chris, Evin, Robbie, Adam and Jason. We bashed the fuck out of him”. This is plainly admissible against Matthew Andrews but is inadmissible against each of the persons named and is very prejudicial to them.
Statement of Tania Clark dated 23 June 2004
In her statement Tania Clark narrates a conversation with Matthew Andrews in early March 2002 in which he informed her of some aspects of the affray. He told her that he had gone to a grassed reserve near the Red Lion Hotel a couple of days ago and that a man had been bashed with a baseball bat. He told her that, “There was Robbie, Adam and Jason Ugolini, a guy called Phillip, Chris, Evin and himself”. In this way, he named all of the male accused. Tania Clark also stated that Matthew Andrews had told her that Evin did not do anything and that, “Adam was crying like a baby in the bushes” and the others were involved in the bashing. Matthew Andrews also told her, “Adam, Robbie, Phillip and Jason … left together to go to the reserve where the bashing took place”. According to Tania Clark, Matthew Andrews also told her that Jones and others had bashed the victim. The evidence is admissible against Matthew Andrews but inadmissible against each of the three Ugolini brothers, Jones, Fuller and Evin Andrews. It is particularly prejudicial to Phillip Jones and the other accused except Evin Andrews.
Statement of Michelle McBride dated 17 March 2002
Michelle McBride had a conversation with Evin and Matthew Andrews on the afternoon of 3 March in which they told her that there had been a fight near the Red Lion Hotel, that they had gone with Fuller to the fight, that it had all started on the Friday night, and that they had not been involved but watched the fight. She spoke of how the two Andrews brothers had told her that, “One of the guys went psycho and would not stop” bashing the victim and that he had destroyed the wooden baseball bat he was using. This last reference is capable of referring to Phillip Jones and is clearly very prejudicial to him.
Statement of Brett Charnock dated 14 March 2002
This statement is inadmissible against Robert Ugolini and Evin Andrews. I will set it out when dealing with the application by Robert Ugolini.
The Application by Phillip Jones
There is a good deal of evidence admissible against all accused capable of proving that Jones was involved in the affray and struck Darren Male. Rachel Pine’s evidence proves that he left Fuller’s house in the group in Jason Ugolini’s car and returned with them. It also proves that he was carrying a baseball bat. She heard him say, “We’re going to get them”. Rachel Pine also proves that, after Jones had returned to Fuller’s house, she heard Jones and Adam Ugolini say words to the effect that they might have killed the victim. Moroney and Collaris both identify him as one of Male’s assailants. Moroney says Jones struck Male with a baseball bat. There is forensic evidence that Male’s blood was found on Jones’ shoes. The evidence of Rachel Pine on the voir dire indicates that there may be difficulties in obtaining a coherent account from her. It has been suggested that other difficulties exist with Moroney’s evidence. At this stage, I must proceed on the footing that they will give the evidence contained in their statements. If there is a material departure from those statements, it may be necessary to review this ruling.
There is a statement from Amanda Jones that she saw her brother leave for Fuller’s house with a baseball bat and that he had said to her that he was taking it with him for his protection. In that statement she adds that he returned with the bat. In a later statement she has said that was untrue – asserting that she was pressured into making that statement. I do not rely on it for the purpose of this ruling. (Since preparing the first draft of these reasons, the prosecution has decided not to call her.)
Shortly stated, there is a considerable body of admissible evidence against Jones capable of establishing that he had been present at the affray and that he had bashed Darren Male. The evidence is quite compelling.
If a joint trial is ordered, the jury will hear evidence which is inadmissible against Jones contained in the statements made by Evin Andrews and Fuller to the police as well as in the evidence of the other five witnesses which has just been outlined. The statements made by both Evin Andrews and Fuller are very prejudicial in that they expressly inculpate Jones as the person who repeatedly bashed Darren Male. The second statement of Fuller is particularly damaging. The statement of Rachel Pine that Evin Andrews had told her that Jones had “hit the guy with a baseball bat” reiterates the damaging effect of Evin Andrews’ statement to the police. I believe that the prejudicial effect of this evidence can be cured by an appropriate direction to the jury. It will be necessary to repeat the direction on each occasion when the inadmissible evidence is given. That will serve to reinforce in the minds of the jury that they cannot use this inadmissible evidence against Jones. This will be particularly so in the case of the two inadmissible statements made by Evin Andrews (his statement to the police and his statement to Rachel Pine) so that the repetition of the warning will have added force.
I do not think that the evidence of Marc Ferrone is unduly prejudicial to Jones. It does not name him. He has not made any admissions to the police. He has not pleaded guilty. In short, it is not possible to identify him as “the guy who was going to own up”. The evidence of Anthony Vella names all seven accused as the persons who had bashed Male. Any prejudice to Jones is offset by the fact that he is named along with all of the other assailants. The evidence of Tania Clark is prejudicial in that she stated that Matthew Andrews had told her, “Jones and others had bashed” the victim. Although Jones is named, he is implicated along with the others. Any prejudice to him is offset by the fact that others (albeit unnamed) are implicated. Any prejudice can be satisfactorily cured by a warning.
There is nothing in the statement of Michelle McBride which names Jones as the person who “went psycho and would not stop” bashing the victim, unless the jury use the statements of Fuller and Evin Andrews to the police in an improper way. The jury will have been directed not to do so. This evidence like that of Rachel Pine is tantamount to repetition of the statement made by Evin Andrews. The direction to the jury will be the stronger because it would have been repeated yet again.
Shortly stated, the prejudicial effect of the evidence which is inadmissible against Phillip Jones is that he went with the others to the place where the affray occurred and that he is named as one of those involved in the affray and in particular as the person who bashed Darren Male. The statements of Fuller and Evin Andrews are especially damaging.
Although the inadmissible evidence of Fuller and Evin Andrews is very prejudicial to Jones and that prejudice might receive some emphasis in the mind of the jury because it is given by two co-accused, that prejudice may be remedied by a direction to the jury as to the proper use of the evidence.
It is both necessary and important to consider the total effect of this evidence as well as to consider each statement separately. The jury will be repeatedly directed that they cannot use this inadmissible evidence and must have regard only to the admissible evidence. They will be told what is admissible and inadmissible. It will be desirable to repeat the direction on each occasion when inadmissible evidence is given. The repetition of that direction should well make it abundantly clear to the jury what can be used and what cannot be used as evidence against each accused. The jury will also be reminded of the direction in the course of my final summing up to them. In addition, two of the inadmissible statements are made by Evin Andrews (in his statement to the police and to Rachel Pine), and the repetition of the finding will have added force on those occasions. Four of the warnings will concern statements made by Matthew Andrews which are admissible only against him, so that the repeated warnings will have added force. In other words, although there are five witnesses who recount statements admissible only against Evin Andrews and Matthew Andrews, the jury will identify those statements as being admissible against the Andrews brothers only. The repetition of those warnings will reinforce warnings in respect of the statements made by Fuller and Evin Andrews to the police.
In reaching these conclusions I have regard to the relatively substantial body of evidence admissible against Jones and the other accused which to a large extent offsets the prejudicial effect of the statements of Fuller and Evin Andrews. It is capable of establishing that Jones was not the only person who inflicted serious injuries on Male. As mentioned earlier, it is compelling evidence, strongly probative of the fact that Jones was one of those who struck Male with a baseball bat.
Although the above factors point to the conclusion that the application for separate trial should be dismissed, one compelling countervailing factor is that the jury may have difficulty in putting from their minds the fact that two eye witnesses, Fuller and Evin Andrews, have made separate and detailed statements in which they clearly implicate Jones as the person who caused the death of Male. If there was no other evidence proving who was involved in the affray or there was evidence of, say, one witness only, then it might have been necessary to order a separate trial. However, the existence of a body of admissible evidence from the witnesses Rachel Pine, Moroney and Collaris which proves that Jones had a baseball bat, that he went to the affray, that he was recognised as one of those who bashed Darren Male, and that Rachel Pine heard him make a damaging admission on his return offsets those factors.
For all of these reasons I dismiss the application by Jones for a separate trial.
The Application by NG
If there is a joint trial, the jury will hear the following evidence which is inadmissible against NG.
Statement made by Fuller to the police on 7 March 2002
In that statement Fuller says that NG was in the group which came to his house, that she was talking on the telephone, that she was talking to the “guys from last night”, that she went to Rachel Pine’s house, that she drove off in the same car as the three Ugolini brothers and Jones, that they were going to the Red Lion Hotel to purchase liquor, that near the hotel the blue Commodore chased their car, that the affray began, that NG was standing in the park talking to Robert and Adam Ugolini, that NG returned in the same car with the same group, that the car was parked in front of Rachel Pine’s house, that NG had made some calls before the affray, and that NG was “the middle person” which, Fuller explained, means that she was “passing information between the two groups of boys”. Most of this can be proved by other admissible evidence. There is a substantial body of evidence proving calls from her telephone. Rachel Pine sees her arrive at Fuller’s house and leave it with the other accused. The only exceptions appear to be that there is no other admissible evidence that NG was at the park when the affray occurred and that she was “the middle person”. As to the first, although the evidence is prejudicial it is displaced by the fact that the question whether NG is guilty of murder will depend on what the prosecution proves as to the telephone calls made by her, not on her presence in the park while the affray occurred. There is a body of admissible evidence as to the content of the calls which she made and the places at which the calls were made. The fact that NG was “the middle person” is also capable of being established by the admissible evidence of calls made by NG that night and the places from which those calls were made.
Statement made by Evin Andrews to police on 18 April 2002
His statement is very much to the same effect as that made by Fuller, at least so far as it concerns NG. He like Fuller saw NG in the same car as the three Ugolini brothers. He said that the reason for the fight was that on the previous night NG had been flirting with some men and that had caused a fight, that NG returned in the same car as the Ugolini brothers and Jones, that the fight had been arranged by NG who had rung up the persons involved in the affray, that she was the instigator of the fight. The prosecution is able to prove these facts save that NG was the instigator of this fight by the same admissible evidence as that to which I referred when examining the inadmissible evidence of Fuller. The same considerations as apply to the statement of Fuller apply mutatis mutandis.
Statement of Rachel Pine made on 16 March 2002
In that statement Rachel Pine said that Evin Andrews told her that there was going to be a fight and he would go to it if needed. The admissible evidence of the phone calls to which reference has already been made is capable of proving that NG arranged a fight. If this conclusion is incorrect, the prejudice to NG can be cured by an appropriate direction.
Statement of Tania Clark dated 23 June 2004
In her statement, Tania Clark relates a conversation with Matthew Andrews who told her that, “The guy who was bashed had been ‘coming on’ to N” G at a nightclub the night before he was bashed and she had been caught out speaking on the phone by her boyfriend Adam Ugolini. This inadmissible evidence is contrary to the prosecution case and is unlikely therefore to have any prejudicial effect. To the extent that it might, it is capable of being cured by direction.
Statement of Michelle McBride dated 17 March 2002
The effect of the conversation between Michelle McBride and both Evin and Matthew Andrews on 3 March 2002 has already been noted. This statement says nothing as to NG’s involvement. It is not prejudicial to her. The risk of any impermissible use of the evidence can be offset by an appropriate direction.
Statement of Brett Charnock dated 14 March 2002
In this statement, Charnock recounts a conversation with Fuller on about 4 March 2002. Fuller told Charnock that he had not hit anyone, that Adam and Robert Ugolini had hid in bushes, and that Jason Ugolini and Jones had bent over the victim and were stopping someone from hitting or kicking him. This statement does not mention NG’s involvement and is not prejudicial to her. The risk of any impermissible use of the evidence can be offset by an appropriate direction.
Shortly stated, the evidence which is inadmissible against NG states
(a)that she arrived with the Ugolini brothers and Jones at Fuller’s house;
(b)that she was the instigator of the fight in that she arranged for Male to be at the place where the affray occurred;
(c) that she was in the park during the affray; and
(d)that she returned with the Ugolini brothers and Jones to Fuller’s house.
The facts in paragraphs (a) and (d) are capable of being established by admissible evidence from Rachel Pine. The prosecution case does not allege that she was at the park. The prejudicial effect of the facts in paragraph (b) can be offset by an appropriate direction. There is a body of evidence admissible against NG, including Telstra records, which is of sufficiently strong probative value to warrant a joint trial. There will be no injustice to NG if there is a joint trial. Her application should be refused.
The Application of Jason Ugolini
If there is to be a joint trial, the jury will hear evidence inadmissible against Jason Ugolini from all of the above witnesses. I will not recite all that is stated by those witnesses, but identify that which is both inadmissible against Jason Ugolini and is prejudicial to him. Before doing so, I briefly identify the admissible evidence against Jason Ugolini.
Rachel Pine’s evidence is that he arrived at Fuller’s house, that some time later she saw him drive away with others and later return to Fuller’s house. There is forensic evidence that Male’s blood was found on jeans he was wearing. He is identified as an assailant by Moroney. The evidence of Collaris is capable of identifying them as an assailant.
I turn to the inadmissible evidence. In his statements to the police, Fuller said that Jason Ugolini came to his house with his brothers Adam and Robert, as well as with NG and Jones, that they all left in Jason Ugolini’s car, that Jason was present at the affray and was assaulted by Male, and that Jason drove the same four back to Fuller’s house. Fuller did not state that Jason had ever hit Darren Male.
In his statement, Evin Andrews also said that Jason Ugolini drove to Fuller’s house with his two brothers as well as with Jones and NG, that that same group left together, that Jason Ugolini was assaulted by Darren Male, that Jason Ugolini hit Male and caused him to fall to the ground, that Jason Ugolini and Jones were the only persons standing near Male, and that he heard the three Ugolini brothers saying that they were going to beat up “the guys” from last night, and that Jason Ugolini “told us what they wanted to do” that night. This evidence implicates Jason Ugolini as one of the organisers of the fight, although it suggests that he hit Male only once and in retaliation for a blow struck by Male. It is, nevertheless, prejudicial. It does, however, conflict with Fuller’s statement.
In his statement Marc Ferrone does not recount anything said by Matthew Andrews which names Jason Ugolini but simply that he overheard Matthew Andrews say, “they clubbed him to death”. Given the existence of admissible evidence that Jason Ugolini was involved in the affray, Jason Ugolini is effectively named as one who clubbed Male to death.
In her statement Rachel Pine narrated how, after the affray, Evin Andrews had told her that Jason Ugolini had “hit the guy” with a softball bat and knocked him to the ground. Earlier, Evin Andrews had told Rachel Pine that there was going to be a fight and that he would go to the fight if needed. This evidence is very similar to that in the statement of Evin Andrews save that in his statement Evin Andrews describes the weapon which Jason Ugolini used as a stick.

In his statement Anthony Vella stated that Matthew Andrews had named Jason Ugolini as one of the seven accused who was present and bashed Male. This is inadmissible evidence against and is obviously very prejudicial to Jason Ugolini. Also prejudicial is the statement of Tania Clark who said that Matthew Andrews named Jason Ugolini as one of those who had gone to the park
The statement by Michelle McBride that Evin and Matthew Andrews told her that one of the guys went “psycho” does not identify Jason Ugolini in any way. It refers to Jones, not Jason Ugolini. It is not prejudicial.
The statement of Brett Charnock in which he related how Fuller had told him that Adam and Robert Ugolini had arranged the fight is inadmissible against Jason Ugolini. It is, however, not prejudicial as Fuller excluded him from those who were responsible for organising the fight.
Shortly stated, the inadmissible evidence against Jason Ugolini is to the effect
(a)     that he went to Fuller’s house with his two brothers, Jones and NG;
(b)that he and his brothers were heard to say they were going to beat up “the guys” from last night;
(c)that he hit Male once with a stick or wooden object which caused Male to fall to the ground;
(d)     that he and Jones were the only persons standing over Male; and
(e)     that he returned with the same group to Fuller’s house.
All of these facts, save for that in paragraph (b), are capable of being established by a reasonable body of other admissible evidence. The evidence of Moroney indicates that Jason Ugolini hit Male more than once. The prosecution case against Jason Ugolini is strong. Such prejudicial material as exists can be cured by direction. I dismiss his application.
The Application of Robert Ugolini
If there is a joint trial, the jury will hear evidence inadmissible against Robert Ugolini from all seven of the witnesses mentioned above. I will not repeat all that is said by those witnesses but identify that which is inadmissible against Robert Ugolini and is prejudicial to him.
It is necessary to refer first to the statements that Fuller made on both 6 and 7 March 2002. In his statement on 6 March, Fuller excludes all accused from any involvement in the affray. However, at an early stage in the interview he said:
I don’t know any of the assaulted people. I don’t know any of the people who assaulted him. All I know is one of my mates was in the park Robbie Ugolini and we arrived after the fight had already started …
Given that Fuller said that Robert Ugolini was at the park before he arrived, it is open to a jury to conclude that Robert Ugolini had been involved in the affray before Fuller arrived at the scene.
In his statement made on 7 March, Fuller said that Robert Ugolini came to his house with his brothers Adam and Jason together with Jones and NG, that they all left in a car driven by Jason Ugolini, that Robert Ugolini was present during the affray but took no part in it, and that he returned to Fuller’s house in the car driven by Jason Ugolini. Fuller said that he knew there was going to be a fight and it is implicit in his statement that Robert Ugolini also knew of that fact. Fuller explained his knowledge in these terms:
Q. Did you know that this fight was going to occur?
A.No definitely not, well I knew there was going to be a fight, I didn’t know there was going to be a fight, I didn’t know there was going to be any fight near the pub or anything like that.
Q.So when you say you knew there was going to be a fight..?
A.Well argument sorry.
Q.How did you know that?
A.Not a fight because of the way that they were talking before they left. Like with the mobile calls you know and your brother’s going to die and stuff like that. That’s when they said to Robbie, you’d better get used to not seeing your brother, that’s what I heard then, N [NG] say to Adam to say to Robbie that those fellas said. So I knew it was pretty serious, anyway with them boys it is.
Mr Tothill, who appeared for Robert Ugolini, submitted that the emphasised words were especially prejudicial to Robert Ugolini in that the plain inference is that the Ugolini brothers are violent. I do not agree. In my view, it is clear that the persons to whom the caller on the mobile telephone had been speaking had said, “You’d better get used to not seeing your brother”. The inference is that it is the persons who were calling on the telephone who are violent. If I am wrong in that conclusion, any prejudice to Robert Ugolini and to the other Ugolini brothers can be cured by an appropriate direction. A little later in his statement Fuller added, “I don’t think Adam, Robbie and N [NG] were interested in fighting with these fellas”. Although this evidence is not prejudicial, it is nevertheless inadmissible and requires an appropriate direction.
In his statement to police, Evin Andrews stated that Robert Ugolini was one of the group which came to Fuller’s home in the car driven by Jason Ugolini, that Robert Ugolini was there when the fight was being planned, that Robert Ugolini left in the car driven by Jason Ugolini, that Robert Ugolini left carrying a metal baseball bat, that he returned to Fuller’s home after the affray in that same car, that he was present in the park when the affray occurred but that he was not one of the assailants. However, Evin Andrews stated that, after everyone had returned to Fuller’s home, everyone was bragging about what they had done. This statement is capable of proving that Robert Ugolini was among those who had bashed Darren Male and is plainly both inadmissible against and prejudicial to him.
The statements made by Marc Ferrone, Anthony Vella, Tania Clark and Brett Charnock implicate Robert Ugolini in the same manner as they implicate Jason Ugolini and are prejudicial to him. That part of the statement of Rachel Pine in which she said that Evin Andrews had told her there was going to be a fight is capable of implicating Robert Ugolini and is prejudicial to him.
The statement by Tania Clark that Matthew Andrews had told her that “Adam, Robbie, Phillip and Jason … left together to go to the reserve where the bashing took place” is plainly prejudicial in that it identifies Robert Ugolini as one who was present while the bashing took place.
The statement by Michelle McBride that Evin and Matthew Andrews had told her that they did not think “That it would go as far as it did” refers only to the belief of the two Andrews brothers and not to the belief of any other persons. However, it is prejudicial in that it is capable of establishing a plan to inflict grievous bodily harm on a person: McAuliffe v The Queen (1995) 183 CLR 108.
The inadmissible evidence against Robert Ugolini is to the effect
(a)     that he went to Fuller’s house with his three brothers, Jones and NG;
(b)     that he left Fuller’s house with that same group;
(c)     that he left carrying a metal baseball bat;
(d)     that he was present at the affray;
(e)     that he returned with the same group to Fuller’s house; and
(f)that he had made statements on his return capable of being construed as an admission of involvement in the bashing.
The facts in all paragraphs but paragraph (c) are capable of being established by the admissible evidence to which I have already referred.
Briefly stated, that is the evidence of Rachel Pine seeing him arrive with his brothers at Fuller’s house, leave in the same car with his brothers and return with them some time later; it is also the evidence of Rachel Pine that she heard him say, “What have we done. What have we done”; and it is the evidence of Moroney who identifies him as an assailant. There is also the evidence of Mr Tony Clay Smith which is capable of proving circumstantially that he was an assailant.
Another item of inadmissible and prejudicial evidence is the passage in the statement of Brett Charnock in which he recounts his conversation with Fuller who had told him that Adam and Robert Ugolini had arranged the fight. The prejudicial effect of the evidence which is inadmissible against Robert Ugolini is, I believe, capable of being cured by direction and is not a sufficient reason to order a separate trial. It is unnecessary to repeat what has already been stated with respect to the application by Jason Ugolini for a separate trial. Applying the same reasoning, mutatis mutandis, I dismiss the application for separate trial.
Conclusion
In short, there is a good deal of evidence which is admissible against all accused. That evidence proves that all of the seven male accused were in the vicinity of the park. The evidence of Collaris and Moroney, when heard together, is capable of proving that the accused Evin Andrews, Jones and the three Ugolini brothers attacked Male and that later Fuller and Matthew Andrews came to their assistance. The evidence of Rachel Pine is capable of proving that all accused left Stone Road at about the same time and later returned at about the same time. It proves also that at least three of the accused, Jones, Jason Ugolini and Robert Ugolini were armed. There is evidence from a number of witnesses capable of proving that NG made the calls to Darren Male, stating that his house was being smashed. This evidence is capable of establishing the prosecution case of a joint enterprise to lure Darren Male to his house with the intention of killing him or causing him grievous bodily harm.
Although there is a considerable body of evidence which is admissible only against individual accused, this is a not uncommon feature of a trial of several accused persons. A degree of prejudice from evidence admissible against one or more accused but not others is inevitable in a trial of this kind. Evidence which is inadmissible against and prejudicial to other accused, it is not so highly prejudicial that the prejudice cannot be addressed by appropriate directions. The fact that there is a substantial body of evidence admissible against all accused is a factor which diminishes the extent of any prejudice. I do not think that a joint trial will result in a real risk of prejudice to any individual accused, which cannot be cured by appropriate directions. The warning that evidence admissible against one or more accused but not admissible against the other accused will be stated so often that the jury will become familiar with it and have little difficulty in applying it.
As these charges arise out of an affray in which it is alleged that all seven male accused participated, it is desirable that there be a joint trial. For the reasons already expressed, while there will be some prejudice, it is not of sufficient weight to displace the prima facie desirability of a joint trial. The evidence against each accused is not so different as to require separate trials. I also believe that there is a real risk of inconsistent verdicts if there were separate trials and that the interests of justice require that there be a joint trial.
For these reasons, I dismissed each application for a separate trial.