R v Andrews & Ors
[2005] SASC 15
•21 January 2005
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 or nature of dispute – prejudicial evidence – application to exclude evidence granted.
Overheard telephone conversations – evidence relevant to victim’s subsequent actions – application to exclude evidence refused.
Earlier telephone call between an accused and witness – irrelevant – application to exclude evidence initially granted but later revoked having regard to his course of evidence.
Conversations of accused – conversations partly recalled – whether recall of one or several conversations – relevant as partial admission – amount of recall goes to weight not admissibility – application to exclude dismissed.
R v Wilson (1970) 123 CLR 334; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Mawaz Khan v The Queen [1967] 1 AC 454; Walton v The Queen (1989) 166 CLR 283; Pollitt v The Queen (1992) 172 CLR 558; Teper v The Queen [1952] AC 480, applied.
Brown v The King (1913) 17 CLR 570; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Spence v Demasi (1988) 48 SASR 536; Jack v Smail (1995) 2 CLR 684, considered.
R v ANDREWS & ORS
[2005] SASC 15Criminal
DEBELLE J Each accused has made a number of applications to exclude evidence. A number of those applications were resolved by agreement with counsel for the prosecution. Others were shortly dealt with and the brief reasons for those rulings appear in the transcript of the voir dire hearing. The following are the reasons for rulings on applications which I wished to consider further, where I later announced my decision and said I would publish my reasons. These are the reasons for the rulings.
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 because he had been telephoned by a woman called NG telling him that it was being damaged. When he arrived at his house, he found it was not being damaged. He 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 Greg 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 Rebecca 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. Suddenly, there was the sound of car doors opening and the movement of people. 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”.
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.
He saw a person who he now knows as Jason Ugolini. Standing next to him was Adam Ugolini, who was known to Moroney before 2 March 2002. The evidence sought to be excluded is contained in the following three extracts from his declaration. The evidence which Fuller seeks to exclude is the emphasised passage in the first of these paragraphs. The evidence which Evin Andrews seeks to exclude is the emphasised passage in the second paragraph.
“Standing next to this guy was Adam Ugolini who I know and a guy with a funny style hair cut. This hairstyle looked similar to an undercut but I’m not certain if it actually was an undercut. The hair was a browny colour. I immediately recognised him as being a guy who on the night came running from around the corner on Woodford Road.
About 5 paces away from that group of 3, over to the right and roughly in the middle of the paved courtyard outside the front of the courts I saw another group standing that included Amanda’s mum, Ugolini’s dad, a couple of women aged roughly in their 40’s who I don’t know and another man aged around 45 years who I also don’t know. Standing with this group I saw Rob Ugolini and a tall guy who would be at least 6’ 3” tall and stocky. I immediately recognised this tall stocky guy as being one of the guys who came fighting me while Darren was getting bashed. This guy had short hair that is longer now than on the night at which time it was shaved to about a number one.
After seeing these guys outside the court I just sat in the van for about a minute wondering what to do. I thought seriously about just driving off and getting Amanda to contact the court later. I was really worried for Amanda and concerned about any problems that might occur because we were all going to be at the courts at the same time. Their attendance at the courts had really caught me by surprise because I really had no idea that they were likely to be there.”
After seeing this group, Moroney went to the Elizabeth Police Station and made arrangements for Amanda Jones to enter the court in a way which permitted her to avoid the group she and Moroney had seen. That required Moroney to park the van in another position.
While making these arrangements, Moroney saw Jason Ugolini go into Courtroom 1. After he had assisted Amanda Jones, Moroney returned to the court. He walked to Courtroom 1 and looked through a security window in the door. He saw the five men he had seen earlier. They were standing together in the dock. He had a further look to see if he could see anyone else who had been involved in the fight but did not see any such person.
The Identification of Evin Andrews
I deal first with the application of Evin Andrews. Mr Tilmouth QC, who appeared for Andrews, contended that the evidence should be excluded on the grounds that it was contaminated by seeing Evin Andrews in the dock and had been assisted by a substantial degree of reconstruction in consequence of Moroney speaking to others. He added that the prejudicial effect outweighed the probative value of the evidence.
It is a notorious fact that mistakes in identification occur not infrequently. Honest mistakes may easily be made. While lawyers recognise the care which must be taken, jurors are not always aware of the deceptive nature of identification evidence: see generally Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593 at 599 - 602, 613 - 614; and the discussion in Cross on Evidence at paras 1340 - 1435.
The evidence which the prosecution intends to lead from Moroney is plainly admissible: Festa v The Queen (supra). The issue is whether its prejudicial effect outweighs its probative value. The evidence has the important characteristic that it was a spontaneous recognition made in circumstances when Evin Andrews was not being presented to Moroney in any way by police officers. Moroney had gone to the Elizabeth Magistrates Court for a purpose quite unrelated to any identification of the persons involved in this fight. He did not know that any of the accused would be present at the court. As he said, seeing them present caught him by surprise.
The person Moroney recognised as the “tall stocky guy” was but one of a number of people standing with the Ugolini brothers, two of whom he knew. More significantly, five other persons were standing with this group and it is common ground they had not been involved in the affray. Three of those persons were in their forties. Moroney did not recognise them. Moroney did recognise the other two as the mother of Amanda Jones and the father of the three Ugolini brothers. The person he described as “the tall stocky guy” was simply standing with this group. There was no more to associate him with those who had been involved in the fight than there was to associate the other three persons in the group whom he did not recognise.
Furthermore, when Moroney first saw this group, there was nothing which indicated that the five men whom he recognised as being involved in the fight were at the court for any reason associated with the affray. Moroney had no knowledge as to why they were there. This was in every respect a coincidental meeting. It had not in any respect been arranged by the police or any other person. This is positive identification evidence with strong probative value. The identification was made in circumstances which do not, I think, adversely affect its probative value or its reliability. I do not think that it is proper to exclude it.
In reaching this conclusion I have had regard to the fact that Moroney did not know Evin Andrews before 2 March 2002 and to the fact that in earlier statements made to police officers Moroney had not described a tall stocky man. I have had regard also to the fact that this identification occurred more than ten weeks after the affray and after Moroney had spoken to the witnesses Collaris, Amanda Jones and some other witnesses who believed they knew who had been involved as well as to the other criticisms raised by Mr Tilmouth QC. What satisfies me that this evidence should not be excluded is the fact that there was nothing to associate Evin Andrews with the affray on 2 March 2002 any more than the three others who were not known to Moroney as well as the fact that this was a spontaneous recognition made as a coincidental meeting, when Moroney did not know why these persons were present at the court.
I have had regard also to the possibility that the fact that Moroney later saw these five men in the courtroom might have assisted his identification of Evin Andrews. However, after his initial recognition, Moroney had parked his car, had gone to the police station to make arrangements for Amanda Jones to enter the court in a way which permitted her to avoid the group, had returned to his car and then had parked it again. He then walked to Courtroom 1. There was, therefore, a reasonable lapse of time between his initial recognition and his seeing the five men in the courtroom. The fact that he saw them in the courtroom might have confirmed his initial belief but I do not believe it adversely affects the weight of his evidence of his initial recognition of Evin Andrews.
I add that it will, of course, be necessary to give a clear and firm warning to the jury on the dangers of identification evidence: Domican v The Queen (supra) at 555.
The Identification of Fuller
Fuller also seeks to exclude the identification of him by Moroney. It is convenient to repeat the extract from Moroney’s statement which contains the words which Fuller seeks to exclude. They are the emphasised portion in the following extract from Moroney’s statement:
“Standing next to this guy was Adam Ugolini who I know and a guy with a funny style hair cut. This hairstyle looked similar to an undercut but I’m not certain if it actually was an undercut. The hair was a browny colour. I immediately recognised him as being a guy who on the night came running from around the corner on Woodford Road.”
The man who he describes as “a guy who on the night came running from around the corner on Woodford Road” is Fuller.
Later in his statement, Moroney described what this person did in the course of the affray. He included him as one of the men who had come running towards the affray and had engaged in it. He said that man was ahead of that group when others were calling out “Fuller, Fuller”. He said that he repeatedly bashed Darren Male who by then was lying on the ground.
It is apparent from Moroney’s evidence that his identification of Fuller was made in the same spontaneous way as the identification of Evin Andrews. The reasons for concluding that the evidence of the identification of Evin Andrews should not be excluded applies with equal force to the evidence of the identification of Fuller by Moroney. There is, in my view, no reason for excluding the evidence of Moroney’s identification of Fuller.
In reaching this conclusion I have had regard to the fact that Moroney did not previously know Fuller. I have also had regard to the fact that, in three previous statements, Moroney did not identify Fuller, nor did he describe a person who resembled Fuller, nor did he describe anything done by a person called Fuller. He does, however, state that he heard the name “Fuller” being called out. I summarise the relevant parts of those statements.
The first was a short statement made in the early hours of 3 March at the scene of the affray shortly after it had occurred. In that statement Moroney tells how three men got out of a car and approached him and Collaris. The three men were Adam Ugolini, his brother Robert and another. Moroney’s evidence was that he grabbed Robert Ugolini’s weapon and immediately after he saw three men hitting Darren Male. They were three men other than Robert Ugolini. He said that he saw Adam Ugolini striking Darren Male. He then says that he suddenly saw six or seven men running across Woodford Road towards him, all with bats in their hands. He then describes how these men began bashing Darren Male’s car. In that statement he describes four men. However, none of those descriptions match Fuller. Moroney said that his statement was short as his main concern was to get to the hospital to enquire about the condition of Darren Male.
Later, on the morning of 3 March, Moroney made a more detailed statement. In that statement he said that five men got out of the car which was parked in front of the car in which he was a passenger. He said that they started running towards him, Darren Male and Collaris. He identified the accused Adam and Robert Ugolini and Phillip Jones. He said that there were two others. The prosecution says that those two others are Jason Ugolini and Evin Andrews. After taking a bat from Robert Ugolini, he turned to see three men bashing Darren Male. He then saw another group of at least seven men running towards them carrying bats and clubs. They were yelling “we’re going to kill you”. Someone yelled out “Fuller”. Moroney went to assist Male. When he reached him he said he saw four men bashing Male. He said they were Adam and Robert Ugolini, Phillip Jones and the driver of the car who he could not then name. There is other evidence that the driver was Jason Ugolini. Nowhere in this declaration does Moroney either identify Fuller, describe a person who resembled Fuller or describe anything done by a person called Fuller. The only reference to a person called Fuller is that someone yelled out that name but Moroney does not describe any conduct by a person with that name.
On 21 March 2003 Moroney corrected his second statement of 3 March 2002 by substituting Fuller’s name for Robert Ugolini. However, in a statement made on 14 July 2004, Moroney omits Fuller and reinstates Robert Ugolini as a member of that group. These changes reflect the fact that Moroney had been speaking to others about the events of 2 March 2002. It also demonstrates the difficulty of recalling precisely who did what in the course of this affray. I proceed on the footing that Fuller was not seen by Moroney to be with Adam and Robert Ugolini, Phillip Jones and the driver of the car when they were bashing Darren Male.
On 8 March 2002 Moroney was interviewed at length by police officers. A transcript of the interview exists. A statement was prepared from that transcript which recounts the events in narrative form. As with the other statements, Moroney does not identify or describe Fuller in either the transcript of that interview or in the narrative statement prepared from that interview, nor does he describe any conduct by the person called Fuller.
I have regard also to the fact that Moroney had been speaking to others who believed they knew who had been involved in this affray. However, there is nothing to suggest that anyone had pointed out Fuller to Moroney as a person who had been involved in the affray.
That is the background against which Moroney’s evidence of his identification of Fuller must be considered.
Although Moroney failed to identify or describe a person with the distinctive haircut, the fact of the distinctive haircut is what triggered Moroney’s identification on 15 May. He described it as “a funny style hair cut”. There is no evidence that Moroney had any information which would associate the person with the funny hair cut with Fuller. There is no evidence that he received a description of what Fuller looked like. There was nothing which necessarily associated the person with the funny hair cut with the affray any more than there was anything to associate the other persons in the group whom Moroney did not identify. It is that fact coupled with the spontaneity of the recognition by Moroney at this accidental meeting which, for the reasons already expressed, leads me to dismiss the application to exclude this evidence. Some emphasis was placed on the fact that the two men identified by Moroney were younger than the other persons he did not identify. I do not think that alters the position.
Mr Kelly, who appeared for Fuller, placed particular reliance on the fact that, on 16 March 2003, when police officers had shown Moroney a page containing 12 photographs of men including Fuller, Moroney had failed to identify Fuller as one of those men. However, that was an attempted identification 12 months after the affray. The recognition at the Elizabeth Court House occurred within three months of the affray. There is no evidence to suggest that Moroney saw Fuller again after 15 May 2002. Moroney’s inability to identify a photograph of Fuller on 16 March 2003 says more about the difficulties of identifying a stranger from a series of photographs when the attempted identification is made long after an incident than it does about the reliability of Moroney’s virtual face to face identification on 15 May 2002. The failure to identify Fuller on 16 May 2003 does not have the consequence that the evidence of the identification on 15 May 2002 should not be led.
For these reasons I dismiss the application by Evin Andrews and the application by Christopher Fuller to exclude the evidence of Moroney identifying them as participants in the affray.
Evidence of Voice Identification
The accused Adam Ugolini applies for an order excluding evidence of the prosecution witness Moroney in which Moroney said that he recognised the voice of a person who had called him on a mobile telephone as the voice of Adam Ugolini. The evidence is part of a declaration made by Moroney to police officers on 8 March 2002, six days after the affray.
In this part of his declaration, Moroney is narrating events which occurred immediately after the affray. Darren Male was then lying on the ground. Moroney and a woman from a neighbouring house were tending him. The woman allowed Moroney to use her mobile telephone to make two or three calls. About five minutes later Moroney received a call on his own mobile telephone. He identified the caller as Adam Ugolini. The call was a very short one. Soon after, Moroney received a second call. Again he identified Adam Ugolini’s voice. The evidence which is sought to be excluded is the identification of Adam Ugolini expressed in this part of Moroney’s statement:
“I used the lady’s phone to ring N’s mobile phone before the police and ambulance arrived and said, “Thanks Darren’s dead” I didn’t get a reply and hung up the phone. The reason that I rang was because on the way down to Darren’s house in his car, Darren sort of explained to me that N had rang to say that they were smashing his house at that time. I don’t know about any calls that previously happened at my house. I didn’t know Darren was dead. I was just bullshitting. Adam then rang my phone about five minutes later threatening me and then hung up. Adam said that I was next and that I would be dead if I give information to the police about who it was or anything. Adam hung up the phone.
I was talking with a Detective in the car when Adam rang again. I knew that it was Adam because I knew Adam’s voice. I handed my phone over to the Detective. The Detective said this is such and such and Adam hung up. I don’t know what was actually said to the Detective but Adam was talking to the Detective for a while.”
It will have been noticed that it is not clear from this extract whether Adam Ugolini had on either occasion identified himself as the caller. Ms Fuller, who appeared for Adam Ugolini, applied to examine Moroney on the voir dire to clarify this question and to ascertain whether Moroney was familiar with Ugolini’s voice. I granted the application.
When examined on the voir dire, Moroney was asked whether his identification of Adam Ugolini as the caller was a result of Adam Ugolini identifying himself or whether he recognised Ugolini’s voice. He said that he recognised Ugolini’s voice. The manner in which the question was asked and the answer given left open the possibility that Adam Ugolini might have identified himself on one or both of those calls. However, the issue was not explored by either counsel for the prosecution or Ms Fuller. I proceed on the footing that Adam Ugolini did not identify himself as the caller.
The effect of Moroney’s evidence is that he had known Adam Ugolini for some time before the night of 2 March 2002. The evidence is not clear as to how long they had known one another. Moroney’s estimates range between three and six months. When examined on the voir dire, he said that he had known Adam Ugolini for four to six months and that answer was not challenged. I proceed on the footing that he had known Adam Ugolini for at least four months. In that time Moroney and Adam Ugolini had had frequent social contact and many conversations. Moroney regarded Adam Ugolini as a friend until 2 March 2002. The social contact included going to nightclubs together, meeting at barbecues, going on a camping and skiing trip together, going on at least one skiing trip together, Moroney driving Adam Ugolini in his car to and from social engagements, and Adam Ugolini coming on numerous occasions as an invited guest to the house in which Moroney resided. They had spoken on the telephone on at least 10 to 15 occasions. Most of the calls lasted two to three minutes. One was quite a long call of about 10 to 15 minutes.
The application to exclude the evidence is made on two grounds. The first is that there is no evidence that Moroney was sufficiently familiar with Adam Ugolini’s voice to be able to recognise it. The second is that in that same declaration Moroney indicates that his identification of Adam Ugolini’s voice is based on reconstruction or guesswork rather than an actual identification of the voice. There is nothing in the evidence which justifies excluding the evidence on the second ground.
I turn to the first ground. It is implicit in this ground that evidence of voice identification is not admissible unless a person at least is familiar with the voice of the caller. For the reasons which follow that premise is wrong.
At one time the law relating to identifying a person by the sound of this person’s voice was not uniform in this country: Bulejcik v The Queen (1996) 185 CLR 375 at 405. In New South Wales the view which formerly prevailed was that evidence of voice identification of an accused person was not admissible unless it was first shown either that the person making the identification was familiar with the voice of the accused or that the voice was so distinctive when first heard by the witness that the jury could accept that an indelible impression had been made on the witness permitting the conclusion to be safely drawn that the two voices were the same: R v Smith [1984] 1 NSWLR 462 and on appeal [1987] 7 NSWLR 444; R v Brownlowe [1987] 7 NSWLR 461. That approach was assumed to be correct by the Court of Criminal Appeal in Queensland in R v Corke (1989) 41 A Crim R 292 at 296 but the court added that those conditions need not be satisfied if the voice identification is associated with visual identification. As to visual and voice identification in combination, see also R v Heuston (1995) 81 A Crim R 387.
Courts in Victoria did not agree with the view held in New South Wales but held that evidence of voice identification was admissible, the conditions identified in New South Wales going to the weight as distinct from the admissibility of the evidence: 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. The view in Victoria has been followed by courts in the Australian Capital Territory and in Tasmania: 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. The decision in R v Smith was strongly criticised by Brennan CJ in Bulejcik v The Queen (1996) 185 CLR 375 at 382, McHugh and Gummow JJ at 406 in the same case expressing a more cautious criticism. In R v Bueti (1997) 70 SASR 370 at 379 - 380 Doyle CJ (with whom Lander and Bleby JJ agreed) said that he was inclined to the view expressed by courts in Victoria, stating there is no reason in principle why the admissibility of evidence by voice recognition should be subject to rules peculiar to that type of evidence but, instead, should depend upon the principles that generally relate to the admissibility of evidence. The trial judge has a discretion to exclude evidence of this kind if the interests of justice made that desirable: R v Bueti (supra) at 380.
In R v Adler [2001] 52 NSWLR 457 the Court of Criminal Appeal in New South Wales held that the common law principle expressed in R v Smith and the cases which had applied it had been altered by s 55(1) and s 116 of the Evidence Act 1995 (NSW) with the consequence that there were no pre-conditions as to the admissibility of such evidence, although there is a need for a jury to be cautioned before accepting such evidence. In that decision, the court also noted that a later decision of the U.S. Federal Court of Appeals in United States v Cerone 830F 2d 938 (8th Cir 1987) had expressed a different approach from earlier decisions in the United States which had been relied on in R v Smith. In United States v Cerone the Court had said:
“Any person may identify a speaker’s voice if he has heard the voice at any time … minimal familiarity is sufficient for admissibility purposes. Attacks on the accuracy of the identification go to the weight of the evidence, and the issues for the jury to decide.”
That view accords with the approach in Victoria.
I respectfully agree with Doyle CJ in R v Bueti that the approach adopted by the Victorian courts should be followed and applied in this State. It is a view which accords with that adopted in the Australian Capital Territory, Tasmania and now is adopted in New South Wales. I do so for the reasons expressed by Ormiston J in R v Harris (No 3) which I respectfully adopt and which need not be recited. It, therefore, follows that the evidence of Moroney of his identification of the voice of Adam Ugolini is admissible. Even if familiarity with Adam Ugolini’s voice is a condition of admissibility, that condition is plainly satisfied as it is clear from Moroney’s evidence that he was quite familiar with Adam Ugolini’s voice, both from ordinary conversation and from speaking to him on the telephone.
Voice identification, like visual identification, has its dangers. Voices can be mimicked. A person’s voice may sound different in moments of excitement, stress, anxiety or high emotion. Voices of two individuals may sound similar. In this case one of the accused states that Adam Ugolini’s voice sounded like one of his brother’s. These are reasons why the court in the exercise of its discretion might exclude such evidence on the ground that its prejudicial effect outweighs its probative value: R v Harris (No 3) (supra) at 317 - 318; R v Bueti (supra) at 380. There is, however, no basis on which to exclude that part of Moroney’s evidence of his identification of Adam Ugolini’s voice on this ground and it will be admitted. It will of course be necessary to give the jury a firm direction as to the dangers of identification evidence of this kind: R v Bueti (supra) at 381 - 382.
Fuller’s Application to Exclude Evidence of Two Interviews
The accused Fuller applies for an order excluding two records of interviews of him by police officers on 6 and 7 March 2002. The interviewing officer on each occasion was Senior Constable Hughes (“Hughes”). Also present was Detective Senior Sergeant Kelso.
Fuller did not give evidence in support of his application. The only evidence was the declaration of Hughes, the transcript of the two interviews, and the videotapes of those interviews as well as a videotape of an interview with Fuller when he was arrested and charged with attempted murder on 3 March 2002.
Mr Fuller had been arrested by Hughes not long after 1.00 pm on 3 March 2002 and charged with the attempted murder of Darren Male. When arrested, Hughes informed him of his rights under s 79A of the Summary Offences Act, 1953. Fuller was taken to the Elizabeth Police Station. While at the police station Fuller was given an opportunity to make a telephone call to his father. He could not contact his father. A police officer then contacted the Legal Services Commission and left a message asking that the duty solicitor contact the police. Shortly after, a solicitor, Mr Oliver Koehn, called back. The police officer then arranged for Koehn to speak to Fuller. After that conversation, Fuller asked Hughes to speak to Koehn. Koehn informed her that he had advised Fuller not to answer questions. Hughes then questioned Fuller for a short time. Fuller exercised his right to silence.
A little later on the same afternoon at 2.39 pm Mr Fuller was asked if he was willing to consent to a forensic procedure involving the taking of a buccal swab. He was informed of his rights. He consented to the procedure.
On the afternoon of 4 March 2002, the police were informed that Darren Male had died. At about 2.15 on the afternoon of 5 March Hughes went to the house where Fuller resided. No one was at the house. It seems that Hughes left a note asking Fuller to call her. A little later Fuller rang Hughes and arrangements were made for Fuller to go to the Elizabeth Police Station at 10 o’clock the next morning. It will have been noticed that Hughes did not seek to contact Fuller until almost 24 hours after she had learned of the death of Darren Male. She was then content that he should come to the police station the next morning. I find that, so far as the police were concerned, there was no urgency to interview Fuller.
Fuller arrived at the Elizabeth Police Station at about 10.30 am on 6 March. After a short conversation, he was taken to an interview room. At about 10.45 am Hughes informed Fuller that Darren Male had died and that she was arresting him and charging him with the murder of Male. Hughes then informed Fuller of his rights under s 79A of the Summary Offences Act and of his entitlement to have a solicitor, relative or friend present. After a series of questions and answers, Fuller agreed to answer questions. The interview continued for about another hour until 11.54 am. In the course of the interview, Fuller answered most of the questions asked of him. On a few occasions he declined to answer questions. Fuller now contends that he was not given a proper opportunity to exercise his rights under s 79A and, in particular, his right to have a solicitor present. He seeks to have the interview excluded.
The Interview on 6 March 2002
In order to consider the submissions made by Mr Kelly on Fuller’s behalf, it is necessary to set out the relevant part of the beginning of the interview.
“Q.Because you have been arrested you have certain rights, I am going to read those rights to you, if you have any questions just ask. As I said you are under arrest for Murder I must warn you that anything you may say may be recorded and used in evidence at a later date. Do you understand that?
A.Mm.
Q.Yes?
A.Yes.
Q.You are entitled to make in the presence of a member of the police force one telephone call to a nominated relative or friend to inform them of your whereabouts. Do you wish to exercise that right?
A.Yes.
Q.Who would you like to call?
A.I don’t know yet.
Q.You are entitled to have a solicitor, relative or friend present during any interrogation or investigation to which you may be subjected to whilst in custody. Do you wish to exercise that right?
A.Yes.
Q.Who would you like to have present?
A.I don’t know yet.
Q.If English is not your native language you are entitled if you so require to be assisted at an interrogation by an interpreter. Do you wish to exercise that right?
A.No.
Q.Whilst you remain in custody you are entitled to refrain from answering any questions. Do you understand that?
A.Yes.
Q.Would you just like to sign that you have had those rights read to you. Christopher what I now intend to do is to ask you some further questions in relation to this incident. When I gave you your arrest rights you said that you would like to have somebody present during this interview. Have you made a decision as to who you would like to have present?
A.No.
Q.Would you like me to continue with the interview without anybody present?
A.Can I ask you a questions [sic] first?
Q.Sure.
A.The boy who did this is already coughed himself in?
Q.Alright I’m going to ask you some questions in relation to the incident. So before we continue this conversation I would just like to warn you that anything that you do say will be recorded and may be used at a later date. Are you happy to answer the questions I am going to put to you?
A.Do I have to answer them all or can I just answer some?
Q.You don’t have to answer any questions I put to you.
A.But I can answer the ones I want to?
Q.You can answer whatever you like.
A.Yep I will listen to your questions and
Q.So your [sic] happy to continue with this interview by yourself with nobody else present?
A.At the moment yes.
Q.At the moment?
A.Yes.
Q.Before I continue when you were arrested on the 3rd March you received some legal advice?
A.Yes from Oliver Koehn.
Q.That’s right. Do you remember what that legal advice was?
A.It was not to answer any questions until I’ve got my head together and yeah.
Q.Remembering that advice, you are still happy to answer my questions or some of my questions?
A.Yeah which ever ones I see fit yes, not a problem.
Q.The allegations are that at about 11.30 pm on the 2nd March, 2002 a person by the name of Darren Male was seriously assaulted at a location being the corner of Whitsbury Road and Woodford Road Elizabeth North. What would you like to tell me about that incident?”
Mr Kelly applied for an order excluding the whole of the interview after Fuller’s answer that he wished to have a solicitor, relative or friend present but said that he did not know who he wished to be present. I do not agree. Even if the greater part of the interview must be excluded, it was proper for Hughes to continue to inform Fuller of his rights so that there could be no complaint of any failure to do so.
It is apparent from the record of interview that Hughes did inform Fuller of his rights and to that extent she complied with s 79A(3). However, that is not the question. The question is whether Fuller, having expressed a wish to exercise the right to have a solicitor, relative or friend present during the interview, had a reasonable opportunity to exercise that right. It is necessary to consider also whether, with the knowledge she had that Fuller had exercised his right to silence on 3 March, Hughes should have given him a better opportunity to determine whether he wished to have a solicitor or other person present or at least to have had an opportunity to obtain legal advice.
With the consent of the parties, I have watched the videotape of all three interviews with Fuller. It is quite apparent that on 6 March, Fuller clearly understood what was being said to him. Although Hughes repeated four times the question, “Are you happy to answer the questions I am going to put to you?” or a like question, it is readily apparent that she was seeking to ascertain what Fuller wished to do. Her questions were not, in my view, oppressive. Instead, after completing the recitation of Fuller’s rights, Hughes immediately and properly returned to the question who Fuller would like to have present. On Fuller replying yet again that he did not know, Hughes asked if he was willing to allow her to continue the interview. When Fuller responded by asking whether someone had admitted to bashing Male, he was not expressing any diffidence or suggesting that he was unwilling to continue the interview. He was seeking information which Hughes properly did not supply. She responded by simply reminding him that she wished to ask questions and warned him that anything said by him would be recorded. When again asked if he was willing to answer, Fuller once more responded with a question. It is clear that Fuller was not in any sense inhibited or overborne during the interview. That is apparent from watching the videotape of the interview as well as from his answers in the course of the interview. Once he had ascertained that he did not have to answer all questions, Fuller unambiguously stated that he was willing to answer questions. Even at that stage Hughes very properly reminded Fuller that he had received legal advice only three days earlier. Remembering that advice Fuller was still happy to answer questions.
To put the matter shortly, on 3 March Fuller had been informed of his rights and had exercised his right to silence; he was again informed of his rights on 6 March and expressed a desire to have someone present but twice could not name who that person should be; when asked whether he was willing to answer questions, he asked whether someone had admitted the bashing and, after asking a few more questions, expressed a willingness to answer some questions notwithstanding that he was reminded that on 3 March he had received legal advice. Fuller was obviously influenced in his own mind by the fact that he believed that someone had admitted bashing Male and, notwithstanding that he had been reminded of the legal advice he had received on 3 March, he was willing to answer questions. He was given four opportunities to refuse to answer but did not seek to do so. Fuller was not under any disability. There can be no suggestion that he was tired. He was not affected by drugs or alcohol. All of these factors point to the conclusion that Fuller was agreeing to answer questions and that the record of interview should be admitted.
The following factors point to the conclusion that Hughes should have refrained from asking any further questions until she had ascertained who Fuller wished to have present.
1.Hughes was the officer who had arrested Fuller for attempted murder on 3 March. She was aware that, after she had arrested him, he had received legal advice and had exercised his right to silence. She knew that she had also been informed by Fuller’s solicitor, Mr Koehn, that Fuller had been advised to exercise his right to silence.
2.As Fuller had been arrested on 6 March on the more serious charge of murder, Hughes could not exclude the real likelihood that Fuller would again be advised to exercise his right to silence and would accept that advice. As he had already exercised his right to silence on the charge of attempted murder, he might do so again in respect of the more serious charge of murder.
3.The fact that there was no urgency in the police enquiries gave the police an opportunity to seek to contact a solicitor to advise Fuller just as they had done on 3 March. Hughes knew that one of her colleagues had contacted the Legal Services Commission on 3 March. No reason has been advanced why no attempt was made to contact the Commission on 6 March.
4.The interview was conducted on a Wednesday morning when it would have been relatively easy to contact the Legal Services Commission or its duty solicitor.
5.Fuller’s answers clearly indicated that he wished to have a person present. There was no impediment to Hughes asking a number of straightforward questions which may well have elicited from Fuller an answer as to who he wished to be present. A most obvious question was whether he wished again to consult Koehn or speak to another solicitor. There was no attempt to make any such enquiry. Hughes made no offer to allow him to ring any other person. There was simply no resolution of that issue. Instead, she proceeded with her questioning notwithstanding that Fuller had told her he wished to have a solicitor, relative or friend present.
Mr Snopek, for the prosecution, contended that Fuller was aware of his rights, having been informed of them on 3 March and having been reminded of them at least twice on 6 March. Regard must be had to that. However, a countervailing factor is that Fuller had also expressed a wish to have a solicitor, relative or friend present and that opportunity was not provided to him.
It is implicit in s 79A that a reasonable opportunity must be afforded to an arrested person to exercise the rights being recited to him. If that were not so, the rights provided by s 79A would be rendered nugatory. When an arrested person expresses a wish to have a solicitor, relative or friend present while being questioned by police officers, the interviewing officer should take reasonable steps to enable the arrested person to exercise that right. That obligation is the greater if the arrested person has on a former occasion and in relation to the same matter expressed a desire to have a solicitor present and has acted on advice given by that solicitor. The officer is not discharged from that obligation by the arrested person not promptly identifying who that person should be.
That conclusion is, I think, reinforced by the principle that police should desist from questioning an arrested person who wishes only to speak in the presence of a solicitor or who asks to see a solicitor before answering. Before the enactment of s 79A, the common law rules relating to the interrogation of persons in custody had been reaffirmed in R v Evans [1962] SASR 303 at 306 - 307 in these terms:
“…it is apparent that there are police officers who are under some misapprehension as to their duty, and we think that the time has come for this Court to say, quite bluntly, that it is not permissible for a police officer to persist in interrogating persons in custody beyond the point at which they intimate the desire to say nothing more. It is, we think, a fortiori, that the questioning ought to stop when the suspect declines to speak save in the presence of his solicitor.”
The rule of practice was affirmed by the High Court in R v Ireland (1970) 126 CLR 321 at 333 where Barwick CJ said:
“In Reg v Evans…the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v Curran and Bailey v The Queen decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions.” [Citations omitted]
All other members of the Court agreed. In later decisions of the Full Court of this Court, it was clearly and repeatedly stated that there was all the more reason for the police to desist from questioning an arrested person when that person has asked to see a solicitor before answering questions. So in R v Stafford (1976) 13 SASR 392 at 398 Bray CJ said:
“As I said in Collins’ case, it is now clear from Reg v Evans, Reg v Ireland (No. 1), and in the High Court, and Harris v Samuels that the police should not persist in questioning a man who has signified his unwillingness to answer them and a fortiori when he has asked to see a solicitor before answering.” [Citations omitted]
See also Harris v Samuels (1973) 5 SASR 439 at 452; R v Collins (1976) 12 SASR 501; R v Killick (1979) 21 SASR 321 at 328 - 329. These principles apply with equal force in respect of rights provided by s 79A: see, for example, R v Harris (1995) 64 SASR 85; R v Williamson (No. 2) (1997) 69 SASR 486; R v Bondareff (1999) 74 SASR 353.
The rationale for the principle stated in those cases is that, once an arrested person expresses a desire to obtain legal advice before answering questions, the police should desist from questioning and the accused should be given a proper opportunity to obtain that advice. That same reasoning should, in my view, apply where a person after being arrested on a charge in relation to a matter has previously expressed a wish to obtain legal advice, on obtaining that advice has refused to answer questions, and that person is later arrested for a more serious charge in respect of the same matter and expresses a wish to have a solicitor, relative or friend present. However, on 6 March, Fuller did not say that he refused to answer until someone else was present. Although he said he wished to have someone present, he later expressed in unequivocal terms a willingness to answer some questions.
What steps must be taken by a police officer interviewing an arrested person to assist that person to decide whether a person should be present during an interview will plainly depend upon the circumstances of each case. Hughes knew that on 3 March Fuller had unsuccessfully sought to contact his father and later, after speaking to a solicitor, had exercised his right to silence. Mr Kelly submitted that, with that knowledge and knowing that Fuller had expressed a wish to have someone present, Hughes should have taken further steps to ascertain who Fuller wished to be present during the interview on 6 March. That submission must be weighed against the fact that Hughes twice asked who Fuller wished to be present during the interview. She endeavoured to ascertain who Fuller wished to have present but without success. On Fuller stating that he did not know, she gave him at least four opportunities not to answer questions and reminded him on 3 March that he had exercised his right to silence. Fuller’s responses to her questions indicated that he understood what she had told him and that he knew what he was doing. He was willing to proceed on the basis that he could decide which questions he would answer and he repeated that wish even after he had been reminded that he had received legal advice on 3 March. Given that repeated expression of his intention to answer only those questions he was willing to answer, Hughes was, in my view, entitled to proceed. In my view, she did not act oppressively. She gave him a reasonable opportunity to decide not to answer questions.
Any doubt whether Fuller was aware of his rights is dispelled by reading an exchange between him and Hughes recorded on pages 22 and 23 of the transcript of the interview of 6 March in which Fuller asks about bail and asks to call Robert Ugolini’s father after the interview has been completed. In addition, on at least three occasions Fuller also declined to answer questions: see pages 29 and 33 of the transcript of the interview. Mr Kelly’s submission seeks to elevate to an unreasonably high standard the obligation of a police officer interviewing a person under arrest. The police officer is entitled to question an arrested person who has been informed of his rights under s 79A if that person expresses a willingness to answer questions, and in this case Fuller expressed to Hughes his willingness to answer those questions he chose to answer. For all of these reasons I admit the evidence of the interview on 6 March 2002.
I have reached that conclusion independently of the fact that Fuller did not give evidence in support of his application. His failure to give evidence only serves to reinforce my conclusion. Fuller’s statement was voluntary, so that he had the onus of establishing why the evidence of interview should be excluded: R v Lee (1950) 82 CLR 133 at 152; Wendo v The Queen (1963) 109 CLR 559 at 565; R v Collins (1976) 12 SASR 501 at 508 - 509, 514, 516 - 517. There is no evidence to suggest that Fuller did not understand his rights or that he was denied any opportunity to exercise them. Nor is there anything to suggest that in some way he was overborne by the questions asked by Hughes.
The decisions in R v Harris (supra) and R v Williamson (No 2) (supra) do not require a contrary conclusion. In the former, the appellant on being arrested and informed of his rights spoke to a solicitor and exercised his right to silence. The police officers continued to ask questions notwithstanding he had done so. The record of the interview was, therefore, held to be inadmissible. Similarly, in R v Williamson (No 2), a solicitor had been called to advise the appellant and she had asked police to do nothing until she arrived at the police station. The appellant had also expressed his wish to have his solicitor, who he named, present, but attempts to locate the solicitor had been unsuccessful. The appellant was questioned notwithstanding that request and in response to those questions made certain admissions. In addition, the appellant in that case was under the influence of a drug and in a poor emotional state. The facts of both cases are markedly different. The appellant in each of those instances had clearly expressed a wish to see a solicitor, had named that solicitor, and the police had been asked not to ask questions or had agreed to do nothing until a solicitor arrived. In both instances the police officers were acting in clear breach of the injunction expressed in R v Evans (supra) and the later cases. By contrast, notwithstanding that he had been properly informed of his rights, that he was aware of the legal advice he had received on 3 March and that he had been reminded of that advice, Fuller did not ask to have a solicitor present, did not say he refused to answer until a solicitor was present, and said that he was willing to answer questions.
I am satisfied that the admissions made by Fuller in the course of this interview were made voluntarily. Even when an admission is made voluntarily without any illegality or unfairness, the Court retains a discretion whether to admit the interview. There is nothing to suggest that Fuller did not act voluntarily and permit Hughes to ask questions. Notwithstanding that conclusion, it is necessary to consider whether there is anything in the exercise of the Court’s discretion why the record of interview should not be admitted. There is, in my view, no reason why in the exercise of that discretion that the record of interview should be excluded. I do not think that the reception of the evidence would be unfair to him.
If I am wrong in that conclusion and Hughes did act either in breach of s 79A or unfairly, I would have a discretion to admit the record of interview. The Court has a discretion to exclude evidence which has been obtained either unlawfully or unfairly: Cleland v The Queen (1982) 151 CLR 1; Foster v The Queen (1993) 67 ALJR 550; R v Swaffield (1998) 192 CLR 159. If there had been a failure to give Fuller a reasonable opportunity to exercise the rights provided him by s 79A, important questions of public policy and, in particular, the public interest in the protection of individuals from unfair and unlawful treatment would have to be considered. It is important to ensure that police officers do not act in a way which impairs the rights available to citizens who are arrested.
For the reasons which follow, in the exercise of that discretion, I would unhesitatingly admit the record of interview. Hughes did not act with any deliberate or reckless disregard of the requirements of s 79A. She spelled out to Fuller what those rights were. Conscious of the fact that he said that he did not know whom he wished to have present, she returned to that question. She reminded him that he had received advice on 3 March. She gave him four opportunities to decline to answer questions.
Fuller’s answers indicate that he understood his rights and what was being put to him. The admission of this statement would not, I think, be contrary to the public interest in ensuring that police officers act so as to ensure that arrested persons are given a reasonable opportunity to exercise the rights provided by s 79A. The admission of this interview could not in any sense suggest any tolerance of a breach of s 79A.
The Interview on 7 March 2002
I turn to the question whether the interview on 7 March should be admitted. It occurred in this way. Some time later on 6 March Mr Fuller asked to make a further statement. Arrangements were made for him to be interviewed at 8.40 am on 7 March. The relevant part of the beginning of the interview has the following exchange:
“Q.When you were arrested you were read your arrest rights and you then made a statement to us, is that correct?
A.Yes.
Q.Do you agree since our conversation yesterday we have had no further conversation in relation to the incident relating to Darren Male?
A.Yes.
Q.Before we continue I would just like to ask you whether you would like me to play back the audio tape of the statement that you made yesterday?
A.No.
Q.You are happy to continue without listening to the audio tape from yesterday?
A.Yes.
Q.Before we continue I must again warn you that I am going to ask you some questions you do not have to answer those questions but anything you do say will be recorded by the recording equipment and may be used as evidence. Do you understand that?
A.Yes.
Q.Do you agree that the statement that you made to police yesterday is a true and accurate account of what occurred on the evening of Saturday the 2nd of March?
A.Mostly true and accurate yes. Not completely.
Q.Would you now like to tell me from the beginning, before I continue I will go through your arrest rights again. My note book is on my desk. Before we continue I will just go through your arrest rights as I read them to you yesterday okay. You are entitled to make in the presence of a member of the police force one telephone call to a nominated relative or friend to inform them of your whereabouts. Do you understand that?
A.Yes.
Q.Do you wish to exercise that right?
A.Yes.
Q.Who would you like to call?
A.I don’t know yet.
Q.You are entitled to have a solicitor, relative or friend present during any interrogation or investigation to which you may be subjected to whilst in custody do you understand that?
A.Yes.
Q.Would you like to exercise that right?
A.Yes.
Q.Who would you like to have present?
A.I don’t know.
Q.Are you happy for the interview to continue without anyone being present?
A.Yes.
Q.If English is not your native language you are entitled if you so require to be assisted at an interrogation by an interpreter. Do you understand that?
A.Yes.
Q.Do you wish to exercise that right?
A.No.
Q.Whilst you remain in custody you are entitled to refrain from answering any questions. Do you understand that?
A.Yes.
Q.You are happy to continue answering questions?
A.Yes.
Q.What can you tell me about the incident that occurred on Saturday the 2nd March, 2002?”
Fuller then went on to answer questions for about three quarters of an hour.
The factors which lead to the conclusion that the interview of 6 March should be admitted apply with equal force to this second interview and indicate that evidence of the interview should be admitted. There are additional factors which point to that conclusion. Fuller had requested this interview. He had been retained in police custody after being arrested on 6 March. He had had an afternoon and an evening in which to consider his position. As the questions he asked on page 26 of the transcript of the interview on 6 March show, he was aware of his rights and he knew that he could make a telephone call to a solicitor, relative or friend. He did not seek to obtain legal advice. Instead, he specifically asked to be interviewed again. The transcript of the interview shows that he wished to answer questions, a conclusion consistent with his request to the interview. He had no reluctance to answer questions. His answer that he wished to have a person present but did not know who that person should be sits rather oddly with his willingness to answer questions. However, Fuller has not given any evidence to explain that apparent inconsistency. The fact that the interview occurred only because of his request indicates that, in no respect was Fuller overborne in this interview. This was in every respect a voluntary statement. I do not believe there is any reason why in the exercise of my discretion I should not admit evidence of this interview. For these reasons the interview on 7 March will also be admitted.
The interviews of Fuller on both 6 March and 7 March 2002 will therefore, be admitted.
The Evidence of Adamopoulos
The accused Adam Ugolini seeks to exclude the evidence of the prosecution witness Adamopoulos in which Adamopoulos recounts an incident when Adam Ugolini and Darren Male each exhibited antagonism towards the other. The application is based on the ground that the evidence is not relevant.
I summarise the effect of the evidence sought to be excluded. About three to four weeks before the affray on 2 March 2002, Adamopoulos was at “The Basement” nightclub in Hindley Street, Adelaide. Darren Male and Adam Ugolini were also at the nightclub. Adamopoulos knew both of them. Adam Ugolini approached Adamopoulos and said to him that he was having trouble with Darren Male. Adamopoulos told Ugolini to stay away from Male and to walk away if Male should approach him. A little later that night Ugolini told Adamopoulos that he wanted to go to the toilet but was afraid to do so in case Male followed him. He asked Adamopoulos to watch his back. According to Adamopoulos, Ugolini then walked towards the toilet but turned away. Adamopoulos then saw Male come from the toilet. After he had left, Adam Ugolini went into the toilet.
Some time later on the same evening, and again at “The Basement” nightclub, Adamopoulos tried to arrange some kind of reconciliation between Male and Ugolini. He related what he did in these words
“Later in the night I went up to Darren and told him to relax. I said, ‘Mate you’re all friends, what’s the problem, don’t wreck everything just over one night.’ I told Darren to go over to Adam and shake his hand, bury the problem. Darren didn’t tell me what the problem was but he wasn’t keen to make it up with Adam. I kept insisting that he shake Adam’s hand and settle the matter and eventually he went to Adam over by the tables near the front bar and shook his hand. Everything seemed to be okay between them after that.”
It is apparent from this evidence that there was some cause for antagonism between Ugolini and Male, although the cause is not explained. There is no evidence of any subsequent friction or antagonism between them before the affray on 2 March 2002. It is also apparent that Adam Ugolini expresses some fear of Darren Male.
When considering this application, it is necessary to have regard also to evidence which will be led from the prosecution witness Moroney to the effect that, immediately before the bashing of Darren Male, Adam Ugolini said to him, “Shane, this has got nothing to do with you”.
The evidence of Adamopoulos is relevant to explain the relationship which existed between Adam Ugolini and Darren Male. Although the cause of the antagonism between them is not explained, it nevertheless demonstrates that some antagonism existed. The evidence of Adamopoulos indicates that, despite the fact that Ugolini and Male shook hands, Male was reluctant to do so. Although Adamopoulos said that everything seemed to be resolved, it does not mean that Male and Ugolini had resolved the differences between them. In short, the evidence proves the nature of the relationship which existed between Adam Ugolini and Darren Male and may explain the words spoken by Adam Ugolini to Moroney on the night of 2March: R v Wilson (1970) 123 CLR 334 at 338 - 339. It is evidence of the conduct of Adam Ugolini which may establish motive on his part, particularly when it is considered together with his words to Moroney before Darren Male was bashed, “Shane, stay out of it. It’s got nothing to do with you”. The evidence is capable of proving the existence of bad feelings between Adam Ugolini and Darren Male and is, therefore, relevant.
I have also considered whether the probative value of the evidence is outweighed by its prejudicial effect. Although the reason for the antagonism is unexplained, it is nevertheless direct evidence of some kind of ongoing dispute or antipathy and there is no sufficient ground upon which to exclude it.
The Evidence of Gee
The accused Jason Ugolini applies to exclude the evidence of the prosecution witness Craig Gee on the ground that its prejudicial effect outweighs its probative value.
In summary, the effect of the evidence of Mr Gee is as follows. At about 11.10 to 11.15 pm on the night of Saturday, 2 March 2002, he walked from his home to the Red Lion Hotel. The affray occurred near the Red Lion Hotel. His route involved walking across Woodford Road towards what is now an access road beside a park. This road used to provide access between Woodford Road and Whitsbury Road. It is now blocked at the Woodford Road end. For convenience, I will refer to it as “the access road”. Gee noticed a car parked on the access road beside the park. He took no particular note of the car. He did not see anyone in the car or near it. He cannot recall any details about the car.
There is other evidence that Jason Ugolini’s car was parked on the access road at the time of the affray. It must be acknowledged that the evidence of Mr Gee proves nothing more than that he saw a car in the access road and at a point near where the affray occurred. However, he saw the car at that location not long before the affray occurred. When that fact is considered with the fact that the access road is a dead-end road and the fact that the car was parked at about the place where the affray occurred, the evidence has sufficient probative value to be led. It is unlikely that there would be frequent movement of cars in and out of this access road at such a late hour so that other cars might have occupied the position of the car seen by Mr Gee.
For these reasons I dismiss the application.
The Evidence of Francis
The accused NG applies for an order excluding part of the evidence of the prosecution witness Tom Francis. The application is made on two grounds. The first is that the evidence is irrelevant. The second concerns evidence of the method of identification of NG.
It is convenient to set out the whole of the evidence sought to be excluded.
“The last time I saw Darren at the club was about 4 to 5 weeks before I heard about his death. I remember seeing Darren arguing with a young blonde girl up near the toilets that are located near the back of the club. When I approached them the girl was pretty well agitated and was shouting at Darren who appeared to me to just stand there and take it. As I approached I could hear her yelling from about 5 metres away even above the base of the sound system that was playing music at the time. When I got up to them she stopped yelling. There was also another guy standing there next to her who wasn’t saying anything. I think he was her boyfriend because he was standing very close to her and walked off with her when she walked away from Darren just after I got up to them.
I didn’t ask what was going on at the time and I never found out what the problem was. The girl appeared to be aged between 18 years and 20 years, she had mousy blonde hair which was straight and about shoulder length, she was about the same height as Darren, she had a medium build. I can’t remember what she was wearing at the time. I have only seen her about 3 or 4 times before she’s always been with a group that have been associating with Shane in the club.
I don’t know her name but during the course of making this statement Detective Fielder showed me a digital photograph of a blonde haired female which I recognise as being the girl who was arguing with Darren on that occasion. I remember the guy who was standing next to her had short hair, he was aged possibly in his early to mid 20’s, had short browny hair which appeared spiky, he appeared shorter than her at about155 centimetres. He is the guy I assumed was the girl’s boyfriend. I can’t remember what he was wearing on that night. I have signed and dated the photograph of the girl.”
I assume for the purpose of this ruling that the girl said to be arguing with Darren Male was NG.
The prosecution seeks to lead this evidence to prove the relationship between Darren Male and NG. It is contended that it demonstrates some animosity between them. When examined, this evidence does not prove that fact. Francis is unable to say that there was an argument. All he saw and heard was NG shouting at Darren Male. However, Francis did not hear what was said. NG’s words were drowned out by the noise of the sound system. NG stopped shouting when Francis approached her. NG could have been shouting at Darren Male for a number of reasons. It does not necessarily follow that she was arguing with him. The evidence does not, therefore, establish that there is any degree of antagonism between Darren Male and NG. It is quite inconclusive. The evidence stands in stark contrast with the evidence of Adamopoulos, which I have admitted and which proves the nature of the relationship between Darren Male and Adam Ugolini.
In my view, this evidence should be excluded on the ground that it is irrelevant and on the ground that its prejudicial effect outweighs its probative value. It is, therefore, unnecessary to deal with the challenge to the evidence of the identification of NG.
Evidence of Telephone Conversations
The accused NG seeks orders excluding evidence of several telephone conversations overheard by three prosecution witnesses, Lorinda Hembury, Gregory Collaris and Shane Moroney. The application is made on the ground that the evidence is inadmissible hearsay, is irrelevant and its prejudicial effect outweighs its probative value. The application relates to several telephone calls said to have been made by NG not long before the affray on 2 March 2002.
There is admissible evidence in the statement of Rebecca Gray that on the night of 2 March at about 10.00 o’clock while she was together with Darren Male and Tahnee Trenton at the house in which Male resided, NG called Rebecca Gray on her mobile telephone and wanted to speak to Male. Rebecca Gray says that she heard shouting in the background to the effect, “…going to smash car, house, Darren”. She handed the phone to Male and overheard him say, “No you’re not going to touch my house”. Male then said, “No, I haven’t done anything wrong”. After that statement he added, “No, you’re not going to touch my house, my stuff or me”. Male then terminated the call. Not long after this call Male went with Rebecca Gray and Tahnee Trenton to the house where Moroney resided. They arrived at about 10.20 to 10.25 pm. Shortly after they had arrived, NG again rang Rebecca Gray and said, “If Darren’s home, tell him to come out the front otherwise his house is going to get smashed. We’re on the corner of Woodford Road”. She then terminated the call. Rebecca Gray told Male about the call. About two minutes later, NG again rang Rebecca Gray’s mobile telephone. Rebecca Gray answered it and NG said, “They’re smashing the house”. Rebecca Gray ended the call and told Male about it. Shortly after, Rebecca Gray received an SMS message on her mobile telephone which read, “I’m on the corner of Woodford”. Rebecca Gray told Male of that message. None of this evidence is challenged. It provides the context in which the applications made by NG must be considered. It is necessary to note also that not long after these calls Darren Male left Moroney’s house in company with Moroney and Collaris and drove to his house and then to the scene of the affray.
The first application is to exclude two parts of the statement of Lorinda Hembury. She was at Moroney’s house on the evening of 2 March. She overheard Rebecca Gray speaking on the telephone. In her statement, she says that Male was then in another room. The part of the statement which the application seeks to exclude reads,
“While Darren was still up in my bedroom with Shane, Rebecca’s mobile phone rang. Rebecca didn’t speak for very long on the phone but she seemed a little bit agitated. I can only remember her saying while she was on the phone, ‘If you want to speak with Darren ring him on his phone.’ Rebecca hung up her phone. Darren walked into the loungeroom and asked who was on the phone. Rebecca told her [sic] that it was N. I didn’t take notice of what was said about the phone call.”
The application concerns the emphasised words.
Lorinda Hembury also overheard another call on Rebecca Gray’s telephone at a time when Darren Male was not in the room. She does not recount what was said but states,
“Rebecca spoke on the phone for not even a minute. Rebecca was agitated when she was speaking in the phone because I remember saying to her ‘Just hang up’. Just after Rebecca hung up her phone, Darren walked back into the loungeroom and he asked Rebecca who was on the phone. Rebecca said that it was N and she that, [sic] ‘They’re just around the corner from your house.”
The application concerns the emphasised words. Although the second statement originally formed part of the application to exclude evidence, that application is now withdrawn. It is, nevertheless, convenient to consider both applications on the footing that both are on foot.
The evidence sought to be led is plainly hearsay. It is convenient to begin by restating the rule against hearsay which is expressed in these terms in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
A statement is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made: Mawaz Khan v The Queen [1967] 1 AC 454 at 462. See also Walton v The Queen (1989) 166 CLR 283 at 288 and 300 - 301 and Pollitt v The Queen (1992) 172 CLR 558 at 577 and at 601 - 603, 620. The fact that a witness is giving evidence of a statement made by another who is also a witness in the proceedings does not enable that evidence to be led as evidence of the truth of the statement: Phipson on Evidence (13th ed) para 16-02 where the rule is expressed in these terms:
“Former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them, unless they were made by a party or in certain circumstances the agent of a party to those proceedings and constitute admissions of facts relevant to those proceedings.”
In the 15th ed at para 25-02 the definition is expressed a little differently, but the statement of the exclusionary rule is the same. Thus, although Rebecca Gray will be giving evidence of these calls, it is necessary to consider whether this additional evidence can be led.
The evidence of Lorinda Hembury as to what Rebecca Gray said after each telephone call can be led to establish, not the truth of what Rebecca Gray said, but the fact that she said those words. That evidence can then be used for the purpose of determining or explaining why Darren Male left Moroney’s house. The evidence is, therefore, admissible. The prosecution is at liberty to lead the evidence the subject of this application. The jury will of course have to be instructed as to the use which they can properly make of this evidence.
I turn to the statement made by Gregory Collaris on 6 March 2002 in which he recounts overhearing Darren Male speaking on a telephone. Collaris was present at the house in which Moroney resided when the telephone call was being received from NG. He says that he had gone into a bedroom where Moroney had been sleeping. Both Male and Moroney were in the bedroom. Shortly after Collaris went into the room, a call was made to Male on Male’s mobile telephone. The relevant part of the statement of Collaris reads,
“When I got there Darren and Shane were in Shane’s room. Darren’s mobile phone rang just after I got in there and Darren answered the call. During the call he was getting a bit upset and he began yelling and screaming over the phone. I didn’t hear him mention any names so I didn’t know who he was talking to at the time. He said, ‘Someone is at my place … someone is smashing up my place’. The phone call lasted only about two or three minutes.
After the call Darren said, ‘Oh Shane, someone is smashing up my house, let’s go and see what’s going on’.
I don’t recall anything else that Darren said during the call, he was just upset and appeared very worried at the time.”
NG applies for an order excluding the emphasised words. This evidence is admissible, not to prove the truth of the fact that someone was smashing up Male’s house, but to explain why he leaves Moroney’s house. This part of the statement of Collaris illustrates what might be adduced in evidence notwithstanding the hearsay rule. The evidence is not being led to establish the truth of the statement. It is common ground that Darren Male’s house was not damaged. Instead, it is being led to prove only the fact that the words were uttered. Darren Male’s statement to Collaris that his house was being smashed up explains why he leaves the house taking Moroney and Collaris with him. The evidence is clearly admissible and there is no ground to exclude it.
The evidence might also be admissible as part of the res gestae. It is a statement made by Darren Male very shortly before he leaves the house. To adapt the remarks of Lord Normand in Teper v The Queen [1952] AC 480 at 486 - 487, this part of the evidence of Collaris is of words spoken at a time which, if not absolutely contemporaneous with the act of leaving the house and driving to the place where the affray occurred, at least so clearly is associated with it in time, place and circumstance that it is part of the act of leaving the house. It is not a narrative of a past event but a statement made spontaneously by Male just before he drives to where the affray occurred: Brown v The King (1913) 17 CLR 570 at 598; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 per Dixon J at 530. However, given the ruling in the previous paragraph that the evidence is admissible to explain why Male leaves Moroney’s house, it is unnecessary to explore this issue.
The remaining parts of this application relate to statements made by Moroney. He was asleep when all of the phone calls mentioned above were made. Objection is taken to a portion of each of the statements made by him on 5 March, 14 May and 30 September 2002. In each of those statements, Moroney sets out that he was woken by Darren Male, recites what Male said to him, describes their journey to the point where the affray occurred, and narrates what Male had said while they were driving there. In his statement made on 14 May 2002 Moroney recounts how he was asleep in bed when he was woken by Darren Male. The evidence to which objection was initially taken is the emphasised part of the following extract.
“At this time Darren Male woke me up and said he had just received a phone call from a girl called N, and Darren’s house was getting smashed up at 182 Woodford Road, Elizabeth North. I got out of bed and quickly got dressed. Darren Male, Greg and myself got into Darren’s car and drove down the Main North Road.”
Moroney then states how they drove to the point where the affray occurred and then describes what occurred during the affray.
The application initially sought to exclude two parts of Moroney’s statement made on 5 March. The first part reads,
“About 11.20 pm Darren ran into my room asking me to go with him to his house. Darren told me someone was smashing his house up. I thought he was joking. I got out of bed and got dressed.”
The application concerned the emphasised words. The other portion of his statement made on 5 March to which objection was taken forms part of Moroney’s account of going with Male and Collaris to the place where the affray occurred. The passage to which objection is taken reads, “On the way there, Darren told me he got a phone call from N telling him someone was smashing his house”.
The third passage to which objection is taken occurs in his statement made on 8 March 2002 in which he is again recounting how Darren Male came into his room and tells him that his house is being smashed. Moroney then jumps out of bed, quickly dresses and goes with Darren Male to the place where the affray occurred. The passage to which objection is taken reads
“Darren came back down to my bedroom and said, ‘Quick, quick get out of bed. They’re fucking smashing my house up.’ I said, ‘Fuck off don’t be stupid.’ Darren said, ‘Fuck get up or I’m going to fucking smash you. I’m fucking serious now get out of bed Shane. They’re smashing my house.’ I could see the expression of anger on Darren’s face. I jumped out of bed and put my pants and t-shirt on but I did not put any jocks on or anything.”
In the course of the hearing of this application, Ms Brown, who appeared for NG, amended the application so that it was limited to seeking to exclude only the evidence in each of those statements naming the caller as NG. The concession was correctly made. All of those statements are admissible, not as proof of the truth of those statements, nor as proof of the fact that NG had made a phone call to Male, but simply to prove what was said and so prove why Darren Male and Moroney went to the place where the affray occurred. The application to exclude that part of the evidence which named NG as the caller must fail for the same reason. The evidence is admissible not as proof that NG had called Darren Male but to explain Darren Male’s actions which took him to the place where the affray occurred. All of this evidence is admissible.
An Earlier Call from NG
NG applied to exclude one other part of Moroney’s statement. It is part of his statement made on 8 March 2002 prepared from a record of interview that same day. Moroney is recounting a telephone call he had received from NG on the afternoon of Saturday, 2 March 2002. The application concerns the following part of Moroney’s statement,
“I sort of went back to sleep and it could have been twenty or thirty minutes later that N rang me on my house phone and said, ‘Did you hear that Shane Jones got a fucking punch in the head before your missus or anyone tells you’. I said, ‘No they haven’t rung me yet. My missus hadn’t taken the mobile phone with her. N said that Shane Jones was too scared to get out of the car. N said that Philip had punched Shane in the face and made his nose bleed. I said, ‘Well why did he do that for. You spoke to me earlier on the phone.’ N said, ‘Well he deserved it. He took Rob’s girlfriend.’ I said, ‘Well that’s only going to start war. That’s ridiculous. Now you’re going to have Shane deciding he might come around and fight you and if that’s what you want to do, that’s what you’ve done. Look I will hear about what happened when my missus gets home. I will hear the full truth.”
Objection is taken to the emphasised words.
This evidence is, in my view, irrelevant. This telephone call is made some six hours before the affray. It is unrelated to it. While it concerns some of the individuals involved in the affray on 2 March 2002, the dispute between Shane Jones and others did not involve Darren Male. The evidence proves no relevant fact in relation to the affray or its cause. Mr Snopek, for the prosecution, submitted that the evidence showed a disposition on the part of NG to be involved in conveying messages between groups and in seeking to organise a fight between groups of others. It is unnecessary to consider the rules concerning the admissibility of evidence to prove the disposition of an accused to act in a particular way because NG says nothing which indicates that she is endeavouring to stir up trouble on behalf of others. NG informs Moroney that Shane Jones had been punched and comments that she believed that he deserved it. She says nothing about fighting. Instead, it is Moroney who comments, “Well, that’s only going to start war”. I repeat the evidence is irrelevant and, therefore, will not be admitted. [In consequence of topics raised in the cross-examination of one witness this ruling was by consent revoked: see p 868 of the transcript.]
The Evidence of Lisa Ayres
The accused Robert Ugolini applies to exclude part of the evidence of the prosecution witness Lisa Ayres. The prosecution has agreed to exclude part of her evidence. Notwithstanding that concession, Robert Ugolini seeks to exclude the following:
“I visited Robert at Yatala Prison on occasions. I think I made the first two (2) visits in company with Bruno and Debbie and another occasion was with Bruno and Fab where I went in Bruno’s car with him and Fab met us there. The same conversation would generally come up on each occasion. They weren’t there just to say ‘hello’ to each other, they were always discussing the case.
I remember Robert talking about how the victim had hit Jason who had then hit the victim back. He said that Amanda’s brother hit the victim three (3) times. Robert said he turned the victim’s head to the side to prevent him choking in his own vomit … Robert said that the guy’s head was totally caved in.”
The persons called Bruno and Debbie are Robert Ugolini’s father and mother.
As is apparent from this part of her statement, Lisa Ayres is narrating words said by Robert Ugolini when she visited him while he was in custody and before he was released on bail. She recalls that she had visited him on at least three occasions but cannot remember when. There is other evidence that the visits were on 23 March, 7 April and 21 April 2002. She did not give a statement to police until 28 March 2003, some 12 months after the first visit.
Lisa Ayres was examined on the voir dire. The second paragraph of the above extract from her statement is a summary of what Robert Ugolini had said on one or more occasions. She was unable to say whether her account was a summary of what had been said by Ugolini on one, two or three occasions. The effect of her evidence is that what is contained in her statement is a summary of what Robert Ugolini had said when she went to visit him. She cannot say whether all of those things were said on one occasion. Equally, she cannot say whether some of those words might have been said on one occasion and others on another occasion. All she can say is that those topics were spoken about but she cannot say when.
Mr Tothill, who appeared for Robert Ugolini, contended that this part of the evidence should be excluded on the ground that its exculpatory nature will present a misleading picture to the jury and an extremely prejudicial view about the nature of the conversation. He contends that if Lisa Ayres cannot remember all of what Ugolini said, she should not be permitted to give that evidence. He relies on the remarks of Cox J in Spence v Demasi (1988) 48 SASR 536 at 540 - 547 and on Jack v Smail (1995) 2 CLR 684. The reliance on those two decisions is misconceived. They relate to the admissibility of self-serving statements in another context.
In my view, although this is hearsay evidence, it is admissible against Robert Ugolini as an implied admission that he was present at the affray. Not only is it an admission that he was present, but it also proves that he was so close to Male that he could see his injuries notwithstanding that it was dark at the time. The fact that Lisa Ayres is unable to recall all that was said by Robert Ugolini on the occasions she visited him at Yatala Labour Prison does not affect the admissibility of this summary, although it might bear upon its weight. The position is little different from an instance where a witness can recall part only of a conversation. Whatever defects might exist with the evidence will no doubt be explored in cross-examination. However, the fact that this is all that Lisa Ayres can recall is not a ground for excluding this evidence. The application is dismissed
44
15
1