R v Andrews (No 4) - [2005] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDREWS & ORS (No 4)
Reasons for Ruling of The Honourable Justice Debelle
5 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Mistrial – application for mistrial – misconduct by prosecution witness – unreliable dock identification by witness – implication by witness that accused had criminal history – challenge by witness to call other witnesses – continual rudeness and unresponsiveness of witness – whether misconduct curable by directions – relevant principles – held: misconduct curable, sufficient directions made – application dismissed.
R v Johnson (2001) 126 A Crim R 395, distinguished.
R v Boland [1974] VR 849; R v Koppen (1975) 11 SASR 182; R v Gray (1977) 17 SASR 534; Maric v The Queen (1978) 52 ALJR 631; R v Fricker (1986) 42 SASR 436; R v Gallagher (1987) 29 A Crim R 33; R v Glennon (1992) 173 CLR 592; Van de Wiel v The Queen (unreported, Court of Criminal Appeal of SA, 3 August 1995, No S5202); R v Glasby (2000) 115 A Crim R 465, considered.

R v ANDREWS & ORS (No 4)
[2005] SASC 300
Criminal: Reasons for Ruling

DEBELLE J. In the course of this trial, applications were made on behalf of all accused for a mistrial. The applications were grounded on misconduct in the witness box by a prosecution witness, Mr Shane Moroney. I dismissed the applications. These are the reasons for that ruling. The bulk of these reasons were dictated before the trial had concluded. That is apparent from the terms in which the reasons are expressed. Notwithstanding that I have settled the reasons recently, I will not alter the tenses. In these reasons the expression “TX” means the transcript of the trial. Hence TX 1837 refers to page 1837 of the trial transcript.
Although I did not discharge the jury, I gave two directions on 30 September 2004 and on 11 October 2004. The time when they were given is noted in these reasons. The two directions are respectively Appendix 1 and 2 to these reasons.
The reasons for the applications are as follows. In the course of his evidence the witness Mr Shane Moroney (“Moroney”) made a dock identification of the accused Evin Andrews and Matthew Andrews. Mr Tilmouth QC and Ms Davey, counsel for each of these two accused, applied for the jury to be discharged on the ground that there had been a mistrial. At that time, Mr Stokes for Jason Ugolini stated that he intended to apply for a mistrial because of remarks made by Moroney in the course of his evidence. The dock identification was but one of a number of instances of misconduct by Moroney in the witness box. On another occasion, he made a sweeping dock identification of all male accused. Anticipating that other applications might be made in respect to that misconduct, I said that I would hear the applications at the conclusion of his evidence. Counsel agreed to that course. However, before proceeding with the balance of Moroney’s evidence, I gave a warning to the jury concerning the dock identification. That warning is at TX 1837 – 1838 and is Appendix 1 to these reasons. I also warned Moroney in the presence of the jury that he should not make another dock identification.
At the conclusion of Moroney’s evidence, both Mr Tilmouth QC and Ms Davey renewed their respective applications. Each applied for an order that the jury be discharged on the ground that there had been a mistrial. In the alternative, each applied for an order discharging their respective clients from this trial. Their applications were grounded on the dock identification of their respective clients and on other grounds. I will refer to those other grounds in a moment. Counsel for each of the other accused also applied for a mistrial. All applications for a mistrial were grounded on a number of instances of misconduct by Moroney in the witness box.
Mr Tilmouth QC primarily relied on three events in the course of Moroney’s evidence. They were
1. The dock identification of Evin Andrews.
2.The fact that Moroney, when being cross-examined as to his previous convictions, responded at one stage (at TX 1963) to a question and then himself asked, “Can you bring their record up?”.
3.A challenge to the accused to call a young woman named Amanda Jones which had occurred in the following way.
Moroney had given evidence that on 15 May 2002 he had identified the accused Evin Andrews and Christopher Fuller at the Elizabeth Magistrates Court. In the course of cross-examination by Mr Kelly, who appeared for the accused Christopher Fuller, Moroney was asked if he had been at the Elizabeth Magistrates Court on 15 May 2002 with Amanda Jones. In that cross‑examination the following exchange occurred:
Q. Do you continue to deny telling Amanda Jones that you went to look at the people in the dock so that you could use what you saw in any later line-ups of suspects.
A. I’d like you to be able to call her in, but I know youse won’t. I’d like you to call her as a witness because I knew nothing. I knew that her brother and her would make it up and I didn’t want to talk to her about nothing.
Later in answer to Ms Fuller, who appeared for Adam Ugolini, (TX 1904 – 1905) he said that he had read a statement by Amanda Jones and added that he could bring it into court. Mr Tilmouth QC submitted, and I accept, that this was a challenge to the accused to call Amanda Jones.
Earlier in his evidence in answer to Mr Kelly, when recounting the events of Sunday, 3 March 2002, Moroney had said (TX 1714):
I had got home, I had one of the family sisters there, they were threatening her life because her life was on the same part, but she hasn’t been called to court for some reason…
Mr Tilmouth QC submitted that evidence referred to Amanda Jones. While I agree that Moroney was intending to refer to Amanda Jones, there was no evidence which would lead a jury to believe that Moroney was then referring to Amanda Jones. The evidence at TX 1714 can, therefore, be disregarded. Mr Tilmouth QC did not press that aspect of his submission.
Mr Tilmouth QC submitted that any one of any one of the three listed incidents constituted sufficient grounds for discharging the jury. When viewed as a whole, he submitted, the grounds for discharging the jury were even stronger. In addition to those three grounds, Mr Tilmouth QC relied upon the accumulated effect of unhelpful and unresponsive answers given by Moroney, unresponsive speeches made by him, his use from time to time of inflammatory language when referring to the accused, his rudeness to counsel and his accusation that counsel had delayed the hearing of the trial, with the implication that it was for the advantage of their respective clients. I have not mentioned every instance of Moroney’s misconduct listed by Mr Tilmouth QC and other counsel. They are set out at TX 2048 and following. I have had regard to them all.
Ms Davey’s application was grounded on the dock identification of Matthew Andrews and on the other grounds relied on by Mr Tilmouth QC. Counsel for all of the other accused each made separate applications relying on the same grounds as Mr Tilmouth QC and Ms Davey other than the dock identification of Evin Andrews and Matthew Andrews.
All of this conduct had occurred notwithstanding repeated requests by me to Moroney that he should do no more than answer the questions asked by counsel. On a number of occasions I informed him that counsel were entitled to ask the questions in the proper discharge of their duty to their respective clients. On several occasions I warned him that, if he continued to misconduct himself in the witness box, he would be in contempt of court. On those occasions, I either used the expression “contempt” or clearly implied that Moroney would be punished for contempt, stating he would be punished if he continued his misconduct. On most occasions, Moroney amended his behaviour for a short time but a little later resumed his misconduct.
I refused all of the applications to discharge the jury on the ground of a mistrial and refused the application to discharge Evin Andrews and Matthew Andrews from the trial. I nevertheless gave the jury a strong warning on these issues. That warning is at TX 2189 – 2194 and is Appendix 2 to these reasons.
Relevant Principles
The overarching principle is that the accused are entitled to a fair trial according to law. The Court has a discretion to discharge a jury where it believes that there has been a mistrial or a miscarriage of justice: R v Gray (1977) 17 SASR 534 at 539; R v Boland [1974] VR 849. When exercising that discretion, the Court may have regard to the length of time which the trial has already occupied and any inconvenience and the cost of another trial. Much depends on the nature and degree of the prejudice to the fair trial of the accused: see R v Gallagher (1987) 29 A Crim R 33 at 40 – 41 and R v Boland (supra) at 866. Another relevant factor is whether the prejudice can be cured by a direction from the trial judge.
I turn to deal with each of the grounds of the application to discharge the jury.
Implication of Previous Convictions
I deal first with Moroney’s request, “Can you bring their records up?”. One implication of that request is that the accused each have a criminal record. That is not the only implication. Another is that Moroney does not know whether the accused had a record but, because his record is being examined at length, he asked that the record, if any, of each of the accused be examined also. The effect of the submissions of counsel for each of the accused was that the request contained the first implication. I deal with the application on the footing that it carried both implications.
Reception of inadmissible evidence of a prior conviction offends against one of the most deeply rooted and jealously guarded principles of the criminal law: R v Glennon (1992) 173 CLR 592 at 604. Courts, therefore, go to great lengths to ensure that inadmissible evidence of prior convictions is not led before the jury except in unusual and particular circumstances. Breaches of the rule should not be lightly treated: R v Koppen (1975) 11 SASR 182 at 185. Much the same might be said of evidence implying that an accused person has a criminal record. However, consistently with the principles I have just mentioned, it is not an invariable rule that, when such evidence is inappropriately given, the jury must be discharged: Maric v The Queen (1978) 52 ALJR 631 at 634; R v Glennon (supra) at 604; R v Fricker (1986) 42 SASR 436 at 439. See also: R v Koppen; Van de Wiel v The Queen (Court of Criminal Appeal, 3 August 1995, Judgment No S5202). Further, it is important to distinguish between cases in which the jury are made aware of previous convictions during the course of a trial and cases in which such awareness is not established: R v Glennon at 604.
When a witness states or implies that an accused has a criminal record, it is appropriate for the Court, in the course of considering whether to discharge the jury, to have regard to such factors as the length of the trial, the nature of the evidence stating or suggesting that the accused has a criminal record or has engaged in criminal behaviour, the nature and degree of the alleged prejudice, to what extent the prejudicial material may be submerged into the background of the totality of the evidence, and whether a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held. See generally: R v Koppen (supra) and the cases there cited; R v Glasby (2000) 115 A Crim R 465 at [112] – [129] and the cases there cited; R v Johnson & Ors (2001) 126 A Crim R 395.
The remark, “Can you bring their records up?” is prejudicial to each accused. It contains the implications already mentioned. However, the prejudice is not as serious as it might have been as there is nothing which positively states that any of the accused has a conviction for a particular or relevant offence. It does not identify any particular criminal conduct. That is not unimportant given that the previous convictions about which Moroney was cross-examined were in large part unrelated to crimes of violence. After carefully weighing all relevant factors, I do not believe that the prejudice caused by this sweeping remark is so serious that it requires an order to discharge the jury. The question is whether it has caused a miscarriage of justice. I do not think it has. Instead, it can be cured by an appropriate direction. I shall direct them in strong terms to disregard this remark. The direction need not be lengthy lest it give undue prominence to an issue which I do not believe has had any significant impact upon the jury and will have even less impact when they come to assess the evidence. In reaching this conclusion, I have also had regard to the fact that the trial should not be terminated at such a late stage after so many witnesses have been called.
The Dock Identifications
The dock identification of both Evin Andrews and Matthew Andrews was on any view prejudicial. However, the nature and extent of the prejudice must be assessed in the light of other evidence against each of those accused. One question is whether the prejudice is slight because of the probative value of other evidence. I deal first with Evin Andrews.
The Crown case was that each of the seven male accused was present in the park opposite the Red Lion Hotel on the night of 2 March 2002 and that each had been involved in striking Darren Male or had acted as an accessory. Moroney had given evidence that he had seen a man with a yellow jumper striking Darren Male. The only other witness of the attack on Darren Male who was in a position to identify individuals was the witness Collaris. In contrast to Moroney, he did not include the man in the yellow jumper as one of those who had struck Darren Male. He saw a man in a yellow jumper at a different part of the park a little distance from those who were attacking Male. Evin Andrews had admitted in a statement to the police that he was present in the park and knew that there was going to be a fight. While that admission placed him in the vicinity of the affray, it is not evidence that he struck Darren Male. Evin Andrews also admitted that he was wearing a yellow jumper that night. That is capable of reinforcing the evidence of either Moroney or Collaris, depending on the view the jury takes of that evidence. There was other evidence that Moroney could not identify Evin Andrews when presented with a series of photographs. That evidence constituted a substantial dent in an assertion confidently made more than once by Moroney in his evidence that he could identify the accused (including Evin Andrews) if each had participated in a line-up. There was also evidence explaining why the police had not conducted any identification parade in the case of Evin Andrews.
I believe that the direction which I had already given (Appendix 1), which was given soon after the dock identification, was sufficient to offset whatever prejudice was caused by the dock identification. The jury was reminded again of that direction in a further direction which I gave (Appendix 2). In the second direction, I reminded the jury Moroney was unable to identify Evin Andrews from the photographs. Thus, the jury has been twice directed to ignore the dock identification. It will be necessary to address all of the above issues again in the direction at the end of the trial. I then intend to remind the jury again of Moroney’s inability to identify Evin Andrews. The cumulative effect of all of these directions will substantially weaken the force of any prejudice to such an extent that I do not believe that the dock identification will prejudice the fair trial of Evin Andrews. In addition, I will be directing the jury to ignore other aspects of Moroney’s evidence.
The prejudice resulting from the dock identification of Matthew Andrews must be assessed against the fact that the Crown proposes to call Mr Anthony Vella as a witness to prove a telephone conversation with Matthew Andrews in which, according to Vella, Matthew Andrews made what was tantamount to an admission that he was present at the affray in the park on the night of 2 March 2002 and had struck Darren Male. According to his statement, Vella will say that the following exchange occurred between him and Matthew Andrews in that conversation:
I told him,I’ve heard that Robert and Adam have got locked up for bashing someone and that he’s died.
Matt said,Yes, I was there with Philip, Chris, Evin, Robbie, Adam and Jason. We bashed the fuck out of him.
I said,What for?
Matt just changed the subject, he wouldn’t answer my question he just kept asking, “What are you doing later” things like that.
I think that the application by Matthew Andrews to discharge the jury cannot be determined until Vella gives his evidence and the quality of that evidence can be assessed. The jury will have to determine whether the conversation occurred, whether Matthew Andrews used those words, and what the words meant. Even if that is not so, the dock identification must also be assessed against the fact that Moroney was unable to identify Matthew Andrews in a line-up arranged by the police. The direction which I gave the jury (Appendix 2) has clearly reminded the jury of that fact. That is a matter which will also be mentioned in the final direction to the jury. I believe that the earlier direction to the jury to ignore the dock identification, reinforced by the second direction and by the final direction, will more than adequately deal with any prejudice to the fair trial of Matthew Andrews. In this respect the same considerations apply mutatis mutandis as apply in the case of Evin Andrews.
The dock identification was prejudicial to the accused Christopher Fuller also. Here again, that prejudice must be weighed with the other evidence and especially the fact that Moroney was unable to identify Fuller from sheets of photographs produced by police. There is evidence of a statement by Fuller to the police where he, like Evin Andrews, admitted being at the park. Moroney gave evidence that he saw Fuller striking Darren Male. However, Collaris did not describe Fuller as one of the assailants. The considerations which militate against an unfair trial of Evin Andrews apply also mutatis mutandis in the case of Christopher Fuller.
The dock identification did not, I think, cause any prejudice to the fair trial of the other accused. The dock identification did not include the accused NG. Moroney had given evidence that he did not see her in the park. To the extent that the dock identification included the other accused, it must be weighed against the evidence of Moroney and Collaris, which is to the effect that they saw those accused alight from a car and that they were involved at different times in striking Darren Male. In addition, Jason Ugolini has admitted that he was the driver of the car from which those four accused had alighted. There is, in my view, no cause to discharge the jury because of the dock identification.
In my view, the effect of the direction I gave will receive added weight because it follows so soon after the earlier direction to disregard the dock identification and because it will contain a number of criticisms of Moroney. The effect of those criticisms will, I believe, cause the jury to have real concerns as to the reliability of much of Moroney’s evidence.
Amanda Jones
The circumstances in which Moroney referred to the statement of Amanda Jones have already been mentioned. His statement, “I would like you to call her as a witness” was characterised by counsel for the defence as a challenge to call Amanda Jones, with a clear implication they would not do so because she would not assist the accused. That might be reading too much into those remarks but I deal with them on that footing. Certainly, his statement that he had a copy of her statement and could bring it to court if asked implied that her evidence would be unfavourable to the accused.

Although there was evidence that Amanda Jones was present at the Basement Nightclub on the night of Friday, 1 March 2002, and was mentioned in that context, and although Amanda Jones was named as a former girlfriend of the accused Robert Ugolini, and although she went back to Moroney’s house that night with Shane Jones, and although she went with Shane Jones to Moroney’s house on 2 March 2002, and although she was mentioned in the evidence in other contexts, the jury heard nothing to suggest that Amanda Jones was capable of giving evidence which would implicate the accused in the killing of Darren Male. There was nothing which would give the jury any indication what she might say. Although Moroney had said that he had seen her statement, there was nothing which indicated what she had said in that statement. In short, the position in respect of Amanda Jones was the same as the other persons mentioned in the evidence but who did not give evidence so that the jury will be directed not to speculate on what she might have said. In this instance, it is possible and desirable to direct the jury to the effect that Mr Snopek had a duty to call witnesses whose evidence would assist the jury in reaching its verdict and, if Mr Snopek believed that Amanda Jones was in a position to give such evidence, he would have called her. The jury can be reminded of the obvious fact that Mr Snopek is an experienced prosecutor and Mr Moroney is not, with the consequence that they could safely ignore Mr Moroney’s remarks. In any view, a direction in those terms will cure any prejudice caused by Moroney’s remarks in this context. In reaching that conclusion, I have regard to the fact that Mr Snopek said that he will not be calling Amanda Jones or making her available for cross-examination and to the submissions by defence counsel as to the reasons why they could not call Amanda Jones.
Related to this complaint concerning Moroney’s reference to the statement of Amanda Jones is a further complaint concerning an assertion by Moroney in the course of his evidence that the accused Fuller (and by implication the other accused) had admitted killing Darren Male. The following exchange occurred in the course of cross-examination by Ms Davey:
Q.You said to Detective Rebecca Hughes that “Along the grapevines I’ve heard that Fuller’s actually admitted to being there. Okay, so he’s almost guilty there anyway”.
A.He did.
Q.Did you say that.
A.Yes. I know who he told. They were bragging at a party, the whole group of them that time.
Q.What was the grapevine you heard that from. Who, not what, who, who is the grapevine.
A.There’s lots of people. They were at a party, I know a lot of girlfriends, ex‑girlfriends, I can’t give their names, they are going to be a witness. I know they have been subpoenaed to court. You will hear from them. I’m not going to mention who because I’m not being forced – they will say how they were bragging at the party what they done to my mate, how they killed my mate.
MISS DAVEY: I protest.
A.Yes, you protest because they are guilty.
This extract is also an example of the willingness of Moroney to inject into his evidence his own views about the guilt of the accused, to which I will later refer.
I do not believe that this evidence requires the jury to be discharged. This is the kind of remark that can be readily cured by a direction to ignore it given at the close of Moroney’s evidence. That direction will emphasise that Mr Snopek has decided who he seeks to call and remind the jury of the obvious and notorious unreliability of what has been heard on the grapevine. Furthermore, that direction will be reinforced in the final direction to the jury when they will be instructed not to speculate on what might have been said by persons mentioned in the course of evidence that have not been called.
In my view, none of these three matters provides grounds for discharging the jury. In addition to considering each as a separate ground, I have considered them as a whole. Although the potential for prejudice is plainly greater when a number of prejudicial events occur, I do not believe that the prejudicial effect of these events when considered together is of such moment that it cannot be cured by an appropriate direction or directions. However, it is necessary to consider these prejudicial events with other aspects of Moroney’s misconduct as a witness and determine whether any of the events, either viewed alone or accumulated with all of the other prejudicial conduct, requires the jury to be discharged. These are the primary grounds for refusing the applications. In the exercise of my discretion, I have also had regard to the fact that Moroney’s conduct occurred at a relatively late stage in what has already been a very lengthy and difficult trial. A re-trial will be equally lengthy and difficult. I do not think that the prejudice is so great that it cannot be cured by appropriate directions, both now and at the end of the trial, or that it requires that the jury be discharged. Finally, the criticisms which I will make of Moroney in the direction I will shortly give will cure any potential for prejudice.
Rudeness, Inflammatory Language and Unresponsiveness
Moroney did not stint in his rudeness to counsel for the accused. His evidence in cross-examination included gratuitous insults and language which was either crude, vulgar or offensive. On occasions, he used the language of the bar room, not of the courtroom. He was on occasions abusive to counsel. His demeanour was truculent, if not at times insolent. He was inclined to make speeches. I frequently warned him to desist from this behaviour and simply answer questions. On occasions when he was rude to counsel, I reminded him that counsel had a duty to discharge to their respective clients and that they were entitled to ask the question. Later, after I had given a good number of warnings, I twice warned him that, if he did not heed the warnings, he would be in contempt of court. His rudeness was transparent, that is to say, it was quite clear that he was most often prone to rudeness when being pressed in cross‑examination. His rudeness was often accompanied by inflammatory language. In addition, his answers in cross-examination were often unresponsive or unhelpful. Here again, it was clear that the inflammatory language or unresponsive or unhelpful answers were resorted to when he was being pressed.
Where a witness is minded frequently to resort to inappropriate answers or conduct, it is difficult for the trial judge to exercise proper and adequate control of the witness. The judge does not wish unduly to interrupt counsel. There are obvious limits on the extent to which a judge may properly intervene in cross‑examination. Yet at the same time the judge must control the witness. In this case, Moroney would initially heed a warning that he was required to do no more than answer the questions which had been asked but, very shortly after, he would revert to unresponsive or inappropriate answers.
These aspects of his misconduct would not have caused any prejudice to any of the accused. Instead, they reflected very adversely on the reliability of his evidence and his credit as a witness. They also reflected very adversely upon Moroney as an individual. The only prejudice caused by this misconduct was to Moroney himself and thereby to the prosecution case. This is not a ground upon which I would order a mistrial.
One aspect of Moroney’s rudeness was that he accused some counsel of delaying the trial. The clear implication was that the counsel had delayed the trial with a view to serving the ends of their respective clients. It was very clear from the manner in which this accusation was made that it was but another instance of Moroney’s rudeness to counsel when being pressed in cross‑examination. This is not particularly prejudicial and any prejudice can be adequately cured by direction. It does not require the jury to be discharged.
Although Moroney’s conduct in the witness box bordered at times on the outrageous, I do not think it constitutes sufficient reason to discharge the jury. Plainly, his conduct was a matter to which the jury must have regard when assessing the credibility and reliability of his evidence. As his evidence proceeded, I made a point of observing the jury’s reaction to his answers and to his behaviour in the witness box. It was quite apparent on several occasions that a number of the jurors, if not all of the jurors, had formed an unfavourable impression of his misconduct in the witness box. Obviously, I am not in a position to know what view they ultimately took of his evidence but it is relevant to note the jury’s reaction.
There will be instances where the conduct of a witness and his answers will require the jury to be discharged: R v Johnson (2001) 126 A Crim R 395 is an instance. That decision is to be distinguished because the trial judge did not give any direction to the jury during the trial concerning the recalcitrant witness. However, in these days when sadly there appears to be less restraint upon the use of offensive and vulgar language than hitherto, it has become necessary for courts to endure the occasional witness who oversteps the mark and uses such language. There will always be the occasional witness who, like Moroney, has his own view of what he wants to say and how his evidence will be presented. This may require a degree of robustness on behalf of the judge and jury. Courts cannot be unduly sensitive less juries be discharged too readily or too frequently. At the same time, the courts must be vigilant to ensure that the conduct of the witness and in particular what is said does not prevent a fair trial of accused persons. Only where such conduct causes incurable prejudice to a fair trial should the jury be discharged.
Moroney had his own views as to how his evidence should be given, including the view that he should inject his own views as to the guilt of the accused. In no respect is prosecution counsel to be blamed for this. I have given one example of this misconduct. Another occurred in the course of cross‑examination by Ms Davey concerning his inability to identify the accused in an array of photographs.
Q.Right at the end of that interview with yourself and Detective Hughes, you said to her “Do you have to write that down?”. Do you remember seeing that last week, saying to to [sic] her.
A.You seen it.
Q.You said that because you didn’t want the police to be open, did you, about what you were truly saying about things, did you.
A.The picture just didn’t show the full image. Until you see the person – very similar outlines, the face, figure the whole lot, but just the flash, the background, completely different set up. I wanted line-ups; youse were too scared to do it.
Q.You’ve been telling the police what you thought might help.
A.What I think can help any investigation. I want justice, that’s all I want.
Moroney displayed a marked hostility to the accused. That was apparent from his dock identification and from a number of his answers. At times, he insulted them, describing them as “pussy cats”, “clowns”, or “dickheads”. Yet on other occasions, Moroney mentioned that the accused had made threats to him. At one stage he said that they had caused him to give up a disc jockey business and had put him on the dole. The threats were not particularised and there was no evidence as to how the accused had caused him to give up his disc jockey business. These remarks stand in stark contrast to those occasions when Moroney evidenced his manifest hostility to the accused and made remarks to the effect that he wished he had done better when fighting the accused and would like to meet them again. It was apparent that his braggadocio did not impress the jurors. The remarks that the accused had caused him financial loss were not, in my view, prejudicial. They must be weighed with Moroney’s express view that he wished he had done better and would like to meet them again. Instead of being prejudicial to the accused, they are but other instances of inappropriate answers which reflect adversely upon his credit and, I believe, would have been so perceived by the jury. I do not overlook the evidence by Moroney, albeit challenged in cross-examination, that the accused Adam Ugolini had made a threat to him in the course of a telephone call some time after the incident. That evidence was given in another context. The jury would have to weigh that evidence with the fact that there was no evidence of any other specific threat to him.
NG’s Application
Finally, Ms Brown for the accused NG submitted that the jury should be discharged because the prosecution case had not proved the facts outlined in the opening in relation to the accused NG. She pointed to the fact that the witness Rebecca Gray had not come up to proof. This is not a ground for discharge of the jury. It will be for the jury to determine what weight should be attributed to the evidence of Rebecca Gray and whether the prosecution has proved its case.
Mr Kelly made a similar application on behalf of the accused Fuller, contending that the evidence of Moroney’s identification had fallen short of what had been stated in the Crown opening. For like reasons, I dismissed the application.
Conclusion
None of these matters, considered singly or together, constitute sufficient grounds to discharge the jury. Instead, they can be adequately dealt with by an appropriate direction. In reaching this conclusion, I do not overlook the defence submission that Moroney is a very important prosecution witness. That is a two-edged sword. The adverse impression he created may well have been detrimental to the prosecution case.
Appendix 1
DEBELLE J
NO.227/2003
THURSDAY, 30 SEPTEMBER 2004 AT 2.35 P.M.
R v EVIN CLINTON MARSH ANDREWS & ORS
RELATING TO P.1837-1838 OF TRANSCRIPT
HIS HONOUR: Ladies and gentlemen, before we resume the evidence, there is an important matter which I must raise with you. The immediate incident which give rise to it concerns something which occurred just before lunch today but it relates also to an incident which occurred earlier in the course of this trial. You will recall that this morning in the course of his evidence Mr Moroney referred to Evin Andrews by name and with a sweeping motion of his left arm pointed towards the dock. You will no doubt recall that incident. That amounts to what lawyers call a dock identification. I want to say something about that.
The most important thing that I wish to say about it right at the outset is that you must entirely ignore it. I can't be more blunt nor more direct, nor, if I may say, more purposeful in asking you to ignore it. I will be later speaking to you and directing you in relation to identification generally. I will also be giving you some quite specific directions on the issue of identification. I won't go into all of that now. I just simply wish to say that of all forms of identification the one which is the most notoriously weak is the dock identification. If you stop and reflect for a moment, you would quickly understand the reasons why it is. If a person is standing in the dock there is a great, as it were, presumption that that is the person who is the person who was seen, whereas in fact it may not be, because, as I will be later saying to you, it is notorious that identification is a difficult task and often can be very seriously flawed and people can be very seriously mistaken.
As you can anticipate from some of the questions which have been put by counsel in the course of cross-examination of this witness, there are issues about identification. Who did what? Was X there? and so on. So it's for that reason I ask you to entirely put from your mind the dock identification.
Similarly, I direct you also to put from your mind the dock identification that was made of Matthew Andrews yesterday for entirely the same reasons as I have just spelled out in the case of Evin Andrews. I will be going to this in more detail later. I will be spelling out the reasons for it in more detail later, but it's important that you hear that and understand that right now. And I remind you that whilst questions of fact in this trial are matters for you to decide as opposed to me, when I give you a direction as to the law, you are required by law to comply with what I am saying and my directions to you concerning this dock identification come under the heading of directions on a question of law. Do you understand that? So it's a question of, whatever your thoughts may be, of accepting that direction and acting upon it. Do you understand that? Is anyone not understanding?
Mr Moroney, you did make that dock identification. I ask you not to do it again in the course of this trial.
Appendix 2
DEBELLE J
NO.227/2003
MONDAY, 11 OCTOBER 2004 AT 10.15 A.M.
R v EVIN CLINTON MARSH ANDREWS & ORS
RELATING TO P.2189-2194 OF TRANSCRIPT
HIS HONOUR: Before Mr Snopek calls his next witness, there are some remarks that I wish to make to you concerning the evidence of Mr Moroney.
It is a matter for you, ladies and gentlemen, but you might think that he was plainly hostile to the accused and was going to say anything, whether it was relevant to the issues in this trial or not. You will have noticed he was unnecessarily talkative. He made long speeches when short answers should have been given to questions. He added comments of his own. He did not comply either with the requests of counsel nor my own requests simply to answer questions. He was gratuitously insulting to counsel. On occasions, his language was profane. These are all factors to which you will have regard when assessing the reliability of his evidence.
I wish particularly to instruct you in the firmest possible terms to comply with the directions which I am now going to give to you. I instruct you most firmly concerning particular remarks he made in the course of his evidence. The directions I am going to give you are on questions of law, so you must comply with them. Most of the matters on which I am going to give you boil down to the simple proposition, a proposition which was said to you before the trial began, namely, that you will reach your verdicts in this case by considering only the evidence that you will hear in the course of this trial.
Mr Moroney seemed to have his own ideas about how the prosecution should be conducted. For reasons which I will give you in a moment, his remarks were quite ill-informed. Mr Moroney displayed an ignorance about the process of bringing a trial to court. It is necessary, therefore, for me to direct you to ignore entirely some of his remarks. It may be that you have already identified what should be ignored in his evidence but, in order to ensure a fair trial, I refer to the following remarks of Mr Moroney which you will put behind you and will entirely ignore.
I have mentioned Mr Moroney’s rudeness to defence counsel. Quite improperly and without a shred of justification, he most unjustly accused Miss Davey and other counsel of improper motives in defending the accused by making such remarks as ‘You’re only doing it for the money’ and other like abuse.
As you would be the very first to realise, ladies and gentlemen, those remarks were as unjust as they are untrue. I cannot be too firm about that. They were quite unjust. They were quite untrue. These accused persons are entitled to a defence. Given your participation in this trial so far, you will be the first to be aware there are questions as to who was in the park on the night of 2 March 2002. There are questions as to why they were there. There are questions as to what each person did or did not do on that night. These questions must be examined carefully if these accused are to have a fair trial.
In short, you will decide upon the evidence which you have heard whether the prosecution has proved its case, and by reference only to that evidence.
In a similar vein, Mr Moroney accused some defence counsel on different occasions of delaying the commencement of the trial. It was implicit in his remarks that the trial had been delayed by them so that his recollection would be adversely affected. Again, these remarks were quite untrue and you will ignore them. Again, they were as unjust as they were untrue. There is simply nothing to support them.
As you know, ladies and gentlemen, it takes some time for police to investigate a crime. In this case, you have heard how as late as March and April 2003 Mr Moroney was being asked if he could identify persons. You will hear evidence of other police inquiries as late as 2004. Once police have completed their investigations, there must be the committal proceedings. You have heard about these facts in the course of your instruction when you first presented yourself for jury duty. After the committal, the case must take its place in a queue of trials waiting to be heard. Sadly, there are quite a few trials. This causes delay in this matter coming to trial. In addition, there are other factors which cause delay, such as the availability of judges because they are engaged in hearing other cases. All these facts demonstrate most clearly why I said to you earlier there simply is no basis for the fact of Mr Moroney’s remarks concerning delay. They were quite untrue and must be ignored by you.
Another of Mr Moroney’s asides occurred when he was answering Mr Stokes’ questions about his previous convictions. He asked if the record of the accused could be brought up. Ladies and gentlemen, there is simply no evidence these accused have any convictions. This was another of Mr Moroney’s ill-informed and ignorant remarks and you will simply ignore them.
In the same vein, Mr Moroney seemed to suggest that he knew how this case should be prosecuted. Again, he displayed a complete lack of knowledge and his remarks should be ignored. In this regard, I mention his remark suggesting that Amanda Jones should be called as a witness. He said ‘I’d like you to be able to call her in, but I know youse will not’. The clear implication in those remarks was that Amanda Jones could give evidence supporting him in identifying some of the accused. He was implying the defence was afraid to call the evidence. He attempted to reinforce this later by saying he had seen the statement to police made by Amanda Jones. In short, Mr Moroney was saying Amanda Jones could give evidence which would support the prosecution.
Ladies and gentlemen, just a few moments’ reflection upon these wholly uninformed and ignorant remarks will clearly indicate just how pointless and stupid they were and why you will ignore them. Mr Snopek is the prosecutor, not the defendants. The defendants do not have to prove a thing. If, as Mr Moroney implied, Amanda Jones has made statements to the police which Mr Snopek believes would assist in the prosecution of these accused, there could be little doubt that Mr Snopek would call her as a witness in this trial. Mr Snopek’s duty is to call the prosecution witnesses. In addition, he has a duty to call any witness whose evidence he believes would assist you in reaching a verdict. When Mr Snopek opened his case, he did not include Amanda Jones as one of the witnesses he intended to call. You may therefore infer that, in the prosecution view, she is not able to give evidence which would assist you. In other words, Mr Snopek is prosecuting this case, not Mr Moroney. Mr Snopek is an experienced prosecutor and Mr Moroney is not. We can safely ignore Mr Moroney’s remarks.
I have said before that you will decide the guilt or innocence of these accused only according to the evidence you hear. These remarks of Mr Moroney only serve to emphasise that fact.
In the same vein is Mr Moroney’s comment that he has girlfriends who were going to be called who will say how the accused was bragging to some identified persons about what they had done. Once again, ladies and gentlemen, this only serves to remind you that you will decide the guilt or innocence of these accused only by reference to the evidence led in the trial, not by reference to what someone believes someone else is going to say about what might or might not have been said at some unidentified time. You would be the first to realise the unreliability of evidence of what someone heard on the grapevine. How unreliable that evidence would be.
At times Mr Moroney spoke of being threatened and said that his life had been disrupted. All of that must be weighed against the threats he made to the accused. It’s a matter for you, ladies and gentlemen, but you might think that this talk of threats made to him and made by him was mere chest beating. You might forgive me if I borrow Lorinda Hembury’s expression and describe it as ‘macho bullshit’. You will obviously simply ignore all of those remarks.
Mr Moroney said the accused were too scared to participate in a line-up. You will entirely ignore that remark also. As you know, no-one is required to answer police questions. They may exercise their right to silence. In the same way, no-one is required to participate in a line-up. Importantly, there is no evidence that anyone refused to participate in a line-up. That is why the remark should be ignored. As a footnote to that question of line-ups, you would have noticed that in the line-up in which Matthew Andrews participated, Mr Moroney did not identify him as one of those in the park that night. This only serves to emphasise why Mr Moroney’s remark should be ignored.
Finally, ladies and gentlemen, I remind you of the direction I gave you last week. You will recall that Mr Moroney made a dock identification of both Evin Andrews and Matthew Andrews and mentioned their names. I told you of the special dangers and unreliability of a dock identification. One obvious reason why there is particular danger in the dock identification made by Mr Moroney is that he could not earlier identify either Evin Andrews or Matthew Andrews when asked to do so by the police. I also told you I would be directing you later about identification and I will do that later at the close of the trial. At this stage, I do no more than repeat the instruction that you will entirely ignore those two dock identifications. That is a very firm instruction to you and please put it entirely from your mind.
So, ladies and gentlemen, I conclude as I began. You will reach your verdict on the basis only of the evidence you hear in the trial. Thank you for your attention, ladies and gentlemen.