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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Andrews (No 4)

Details

AGLC: R v Andrews (No 4) [2005] SASC 300
Case: [2005] SASC 300
Decision Date: 5 August 2005

CaseChat Overview and Summary

In the case of R v Andrews (No 4), the accused, Evin Clinton Marsh Andrews, along with others, faced allegations related to criminal activities, with the trial taking place in the relevant court. The primary dispute arose from the conduct of a key prosecution witness, Mr Moroney, whose behaviour and statements during the trial were deemed problematic by the defence. The accused's legal representatives argued that the misconduct of Mr Moroney warranted a mistrial, claiming that his actions significantly compromised the fairness of the trial.

The court was tasked with determining whether the misconduct by Mr Moroney was severe enough to warrant a mistrial. Issues included Mr Moroney's dock identification of the accused, his rudeness and unresponsiveness during cross-examination, and his suggestion that the defence was avoiding calling certain witnesses. The court had to assess if these issues could be managed through appropriate judicial directions or if they necessitated a mistrial.

After careful consideration of the evidence and arguments presented, the court found that the misconduct exhibited by Mr Moroney was curable through sufficient judicial directions. The judge emphasized the importance of the jury disregarding the dock identification and other improper remarks made by Mr Moroney. The court concluded that appropriate directions could sufficiently mitigate the impact of the misconduct, thus maintaining the integrity of the trial process. The application for a mistrial was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J

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 1DEBELLE JNO.227/2003THURSDAY, 30 SEPTEMBER 2004 AT 2.35 P.M.R v EVIN CLINTON MARSH ANDREWS & ORSRELATING TO P.1837-1838 OF TRANSCRIPTHIS 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 2DEBELLE JNO.227/2003MONDAY, 11 OCTOBER 2004 AT 10.15 A.M.R v EVIN CLINTON MARSH ANDREWS & ORSRELATING TO P.2189-2194 OF TRANSCRIPTHIS 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.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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