R v Andrews & Ors

Case [2005] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v ANDREWS & ORS

Reasons for Rulings of The Honourable Justice Debelle

21 January 2005

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY

Identification evidence – visual identification of accused in a court and its precincts – identification spontaneous and probative value outweighed prejudicial value – relevant principles - application to exclude evidence refused.

Identification of voice – identification of an accused’s voice in a telephone call – relevant principles – evidence identifying by voice goes to the weight – application to exclude evidence refused.

Police interrogation – whether accused given reasonable opportunity to exercise rights under s 79A Summary Offences Act, 1953 – given opportunity to exercise rights but no clear election made and continues to answer police questions – application to exclude evidence of the police interview refused.

Evidence Act 1995 (NSW) s 55(1), s 116; Summary Offences Act 1953 s 79A, referred to.
R v Hentschel [1988] VR 362; R v Jones and Harris (1989) 41 A Crim R 1; R v Harris (No 3) [1990] VR 310; R v Bueti (1997) 70 SASR 370; R v Lee (1950) 82 CLR 133; Wendo v The Queen (1963) 109 CLR 559; Cleland v The Queen (1982) 151 CLR 1; Foster v The Queen (1993) 67 ALJR 550; R v Swaffield (1998) 192 CLR 159, applied.
R v Smith [1984] 1 NSWLR 462 and on appeal [1987] 7 NSWLR 444; R v Brownlowe [1987] 7 NSWLR 461; R v Corke (1989) 41 A Crim R 292; R v Adler [2001] 52 NSWLR 457; United States v Cerone 830F 2d 938 (8th Cir 1987), discussed.
Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Bulejcik v The Queen (1996) 185 CLR 375; R v Heuston (1995) 81 A Crim R 387; R v Omar (1991) 58 A Crim R 139; R v Miladinovic (1992) 109 ACTR 11; Greaves v Aikman (1994) 74 A Crim R 370; R v Evans [1962] SASR 303; R v Ireland (1970) 126 CLR 321; R v Stafford (1976) 13 SASR 392; Harris v Samuels (1973) 5 SASR 439; R v Collins (1976) 12 SASR 501; R v Killick (1979) 21 SASR 321; R v Harris (1995) 64 SASR 85; R v Williamson (No 2) (1997) 69 SASR 486; R v Bondareff (1999) 74 SASR 353, considered.

CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES

Previous antagonistic incident between an accused and victim – probative value in demonstrating relationship outweighs prejudice – application to exclude evidence refused.

Evidence of a vehicle earlier parked at location of incident – probative value outweighs prejudice – application to exclude evidence refused.

Evidence of altercation between an accused and victim – evidence inconclusive whether a dispute existed…

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Details
AGLC
R v Andrews & Ors [2005] SASC 15
Case
[2005] SASC 15
Decision Date

CaseChat Overview and Summary

This case involved five accused persons who were charged with assault in relation to an affray that occurred in Elizabeth, South Australia. The incident in question involved a group of men who assaulted a person named Darren Male, with the accused individuals alleged to have played various roles in the assault. The case primarily dealt with issues of evidence, including visual identification, voice identification, and the admissibility of police interrogation evidence. The court had to determine whether the evidence of visual identification made by Shane Moroney, the voice identification, and the police interrogation were admissible in the trial.

The legal issues before the court were whether the evidence of visual identification made by Moroney was admissible, whether the evidence of voice identification was admissible, and whether the evidence of police interrogation was admissible. The accused argued that the visual identification evidence should be excluded because it was not spontaneous and had a high prejudicial value. Regarding the voice identification, the accused argued that the evidence was unreliable and should be excluded. In relation to the police interrogation, the accused argued that they were not given a reasonable opportunity to exercise their rights under section 79A of the Summary Offences Act 1953, and thus the evidence should be excluded.

The court held that the evidence of visual identification was admissible because it was spontaneous and had a high probative value. The court noted that Moroney's identification of the accused individuals occurred in a natural and uncontrived manner, and the probative value of the evidence outweighed any prejudicial effect. The court also held that the evidence of voice identification was admissible because it went to the weight of the evidence rather than its admissibility. The court found that the evidence of police interrogation was admissible because the accused individuals were given a reasonable opportunity to exercise their rights under section 79A, but they chose not to exercise those rights and continued to answer police questions. The court held that the evidence was not excluded because the accused did not make a clear election to exercise their rights, and they continued to answer police questions.

The court refused the applications to exclude the evidence of visual identification, voice identification, and police interrogation. The case proceeded to trial with all the evidence being considered by the jury in determining the guilt or innocence of the accused individuals. The court's decision to admit the evidence was based on the principles of balancing the probative value of the evidence against any prejudicial effect it may have. The court found that the probative value of the evidence outweighed any prejudicial effect and that the accused individuals were given a reasonable opportunity to exercise their rights during the police interrogation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.Evidence of Visual Identification Shane Moroney made a number of statements to the police. In his statement made on 31 May 2002 he says that on 15 May 2002 he identified the accused Evin Andrews and the accused Christopher Fuller as persons involved in the bashing of Darren Male. Both Evin Andrews and Christopher Fuller seek to exclude Moroney’s evidence of this identification. The identification occurred in the following way. On the afternoon of 15 May 2002 Moroney drove a friend named Amanda Jones to the Elizabeth Magistrates Court where she was required to appear at 2.15 pm on an unrelated matter. He took her to the court in a van. The Elizabeth Magistrates Court stands next to the Elizabeth Police Station. As Moroney drove the van past the police station, Amanda Jones said words to the effect “Fuck, they’re out the front.” She crouched down on the floor in the passenger seat. Moroney said that he did not know what she was talking about and wondered why she was crouching down. Moroney parked the van. He then looked towards the court house. He said that he then saw five of the persons who had been involved in the assault on him and Collaris and in the bashing of Darren Male.

Decision

Reasons for decision

DEBELLE J

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Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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