R v Jones

[2006] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JONES & ORS

[2006] SASC 189

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)

28 June 2006

EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY

Appeal against conviction - four appellants charged with four other accused with murder of victim - appellants convicted of murder - jury unable to reach verdict on other four accused - victim and two acquaintances lured to reserve near victim's house where victim was attacked and beaten to death.

Prosecution led evidence of telephone calls made by one accused to girlfriend of victim to establish that an attempt was made to lure victim to return to his house on a false pretext - whether evidence of what was said during telephone calls was admissible - whether evidence of discussion between victim and acquaintances after telephone calls admissible.

Held: evidence of what was said in putting forward the pretext was not excluded under the hearsay rule as it was not led to establish the truth of the statements - evidence of discussions with victim after telephone calls was relevant to prove the state of mind of the victim and to explain his subsequent actions in response to the calls - statement by caller as to her identity was admissible as circumstantial evidence.

Pollitt v The Queen (1992) 174 CLR 558; Ratten v The Queen [1972] AC 378; Subramanian v Public Prosecutor [1956] 1 WLR 965; Walton v The Queen (1989) 166 CLR 283, applied.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - WHO ARE ACCOMPLICES - OTHER CASES

Acquaintances of victim claimed to have accompanied him to the reserve and taken part in the altercation with the appellants - whether they were thereby to be regarded as accomplices in the assault on the victim for the purposes of the accomplice warning rule - alternatively, whether necessary to give corroboration warning in relation to evidence of these witnesses by reason of their having some purpose of their own to serve.

Held: warning not required on either basis.

Whether warning required concerning evidence of acquaintances by reason of conduct and demeanour when giving evidence - whether trial judge erred in failing to discharge jury following inflammatory remarks by acquaintance of victim in course of evidence.

Held: warnings and other directions given to the jury concerning remarks and conduct of witnesses were sufficient to prevent jury from drawing inferences unfairly adverse to the appellants - no error in failing to discharge jury.

Davies v Director of Public Prosecutions [1954] AC 378; Maric v R (1978) 20 ALR 513; R v Smith (No 2) (1995) 64 SASR 1, applied.
R v Coney (1882) 8 QBD 534, distinguished.
Director of Public Prosecutions v Kilbourne [1973] AC 729; R v Prater [1960] 2 QB 464; R v Sinclair and Dinh (1997) 191 LSJS 53; Van De Wiel v The Queen (Doyle CJ, Duggan and Nyland JJ, 3 August 1995, unreported), discussed.
The Queen v Rigney (1975) 12 SASR 30, considered.

EVIDENCE - WITNESSES - HOSTILE WITNESSES

Partner of one of accused called as prosecution witness - declaration pursuant to s 27 of Evidence Act 1929 that witness hostile - whether declaration justified - whether correct procedure under s 27 followed - whether directions to the jury on approach to be taken in assessing the witness were adequate.

Held: no error in declaration, procedure or directions relating to witness.

R v Hutchison (1990) 53 SASR 587, applied.
McLellan v Bowyer (1961) 106 CLR 95, discussed.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY

Consideration of the directions given on joint enterprise and aiding and abetting - whether self-defence relevant in relation to aiders and abettors - whether directions on withdrawal from joint enterprise were adequate - whether direction on extended joint enterprise adequate - whether errors in directions on aiding and abetting - whether directions on aiding and abetting adequately related to the facts of the case - whether verdict unsafe by reason of possibility of confusion in minds of jury as a result of directions on complicity.

Mohan v The Queen [1967] 2 AC 187; R v Lowery and King (No 2) [1972] VR 560; Osland v The Queen (1998) 197 CLR 316; Johns v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108, discussed.
Giorgianni v The Queen (1985) 156 CLR 473; R v Phan (2001) 53 NSWLR 480; R v McAuliffe and McAuliffe (1993) 70 A Crim R 303; R v Clarkson [1971] 1 WLR 1402; Stokes v Difford (1990) 51 A Crim R 25, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Whether miscarriage of justice by reason of joint trial of eight accused - consideration of directions rendered necessary by the joint trial.

Held: no miscarriage of justice made out on this ground.

R v Gillard and Preston [2000] SASC 454, applied.
R v Collie (1991) 56 SASR 302; R v Harbach (1973) 6 SASR 427; R v Webb and Hay (1992) 59 SASR 563; The Queen v Darby (1982) 148 CLR 668, discussed.

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

Consideration of criticisms made of directions on self-defence - whether misdirection in relation to possibility of retreat.

Held: no misdirection as to self-defence.

Zecevic v Director of Public Prosecutions (VIC) (1987) 162 CLR 645, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - STRIKING OUT AND WARNING TO JURY TO DISREGARD EVIDENCE

Consideration of use of out of court statements or admissions made by one accused in the case against another accused in joint trial - whether trial judge allowed out of court statements to be used in an impermissible way in case against other accused - where trial judge gave frequent directions that out of court statements only to be used as evidence against respective accused and not as evidence against other accused.

Held (by majority): out of court statements not admissible as evidence of corroboration - out of court statements admissible and relevant in assessment of credibility of witness giving same evidence in case against all accused - no error in directions given to jury concerning purpose for which out of court statements could be used.

Appeal dismissed (majority).

Evidence Act 1929 (SA) s 27, s 34, referred to.
Apostolides v The Queen (1983) 11 A Crim R 381; R v Demirok [1976] VR 244, applied.
Buck v The Queen (1982) 8 A Crim R 208; See Kau Wong v The Queen [1983] WAR 80, discussed.
Ridley v Whipp (1916) 22 CLR 381; R v Baskerville [1916] 2 KB 658; R v Kehagia, Leone & Durkic [1985] VR 107 at 112; R v Rosemeyer [1985] VR 945; R v Smith [1964] NSWR 537; Tripodi v The Queen (1961) 104 CLR 1, considered.

R v JONES & ORS
[2006] SASC 189

Court of Criminal Appeal:  Duggan, Bleby and Anderson JJ

1. DUGGAN J.         The appellants have appealed against conviction on a charge of murdering Darren Male at Elizabeth North on 2 March 2002.  They were charged jointly with four other accused: Evin Andrews, Matthew Andrews, Christopher Fuller and G.  The jury were unable to reach verdicts in relation to those accused.

   The prosecution case

2. According to the prosecution case, Mr Male was lured to a location near his house on the evening of the alleged offence.  The prosecution alleged that G had made telephone calls as part of a plan to get him to return to his house.  In response to the calls, Male and some friends drove to a service road adjoining a reserve opposite his house at Woodforde Road, Elizabeth North.  It was alleged that, after he parked his vehicle on the service road, he was attacked by all the male accused and beaten to death.

3. The prosecution alleged that, on the evening of the incident, Male received a message that his home was being wrecked.  As a result of receiving the message, he drove to the reserve opposite his house so that he could observe his premises from there.  He parked on a service road which borders the reserve.  He was accompanied by two acquaintances, Greg Collaris and Shane Moroney.  There was evidence that he and Moroney had pieces of wood with them in the vehicle.  Moroney and Collaris were principal witnesses for the prosecution at the trial.  They said that, after they had parked on the service road, they noticed another vehicle which was already parked on the road.

4. According to the prosecution case, the male accused had all travelled to this location where they lay in wait for Male.  They travelled there in two cars.  Jason Ugolini was the driver of one vehicle and his passengers were Robert Ugolini, Adam Ugolini, Phillip Jones and Evin Andrews.  The prosecution alleged that all alighted from Ugolini’s vehicle when Male’s car arrived.  They were carrying sticks and one was armed with a baseball bat.

5. Moroney and Male alighted from their vehicle.  Moroney said that Adam Ugolini then told him it had nothing to do with him (Moroney).  Moroney said that shortly thereafter, he saw Male on the ground surrounded by Jason Ugolini, Phillip Jones and a man in a yellow pullover, who the prosecution claimed was Evin Andrews.  Moroney said they were delivering “full-on blows” to Male.

6. Moroney gave evidence that he ran towards the group and, as he did so, he saw another group of men approaching.  Moroney said there were about five people in this group.  He said they started “swinging” at him, and then joined the others at the location where Male was being attacked.  He gave evidence that he saw each of the appellants take part in the attack on Male while he was on the ground.

7. A neighbour called the police and Male was taken to hospital, but died two days later.

8. The prosecution called Rachel Pine, the partner of Evin Andrews.  It was the prosecution case that all the accused gathered at her home and the house of her close neighbour, Christopher Fuller, before the incident.

9. Evin Andrews told Pine there was going to be a fight with some men they had met on the previous night.  Pine said she saw some of the accused get into Jason Ugolini’s car.  She said Phillip Jones had a baseball bat and Jason Ugolini also had something in his hands which looked like a wooden stick.  Adam Ugolini was carrying a stick about a metre long.

10. Pine said some of the accused returned about an hour later.  She said they looked shocked and that Phillip Jones, Adam Ugolini and Robert Ugolini were saying, “What have we done?  What have we done?”.  Adam Ugolini and Phillip Jones told her they might have killed someone.

11. Following police enquiries, the eight accused were arrested.  Evin Andrews and Christopher Fuller gave versions to the police of what they claimed occurred at the reserve.  The other accused declined to answer questions.  None of the accused gave evidence at the trial.

12. Most of the grounds of appeal are common to each appellant.

    Grounds 1 and 2

13. At the time of this incident, Male lived at the Woodforde Road address with his girlfriend, Rebecca Gray, and Tahnee Trenton.

14. The trial judge admitted evidence of telephone calls made to a mobile telephone being used by Rebecca Gray shortly before the alleged offence.  According to the prosecution case, the calls were made to Rebecca Gray by G.  It was alleged that they were made for the purpose of luring Male to the vicinity of his home where the appellants were waiting for him.  The pretext for getting him to return to the house was to tell him that his house was about to be ransacked.

15. The appellants have argued that evidence of what was said during the telephone conversations should have been excluded on the ground that it was hearsay.  Objection was also taken to statements which were made by various witnesses and Male following the telephone calls.

16. There were differing accounts on the evidence of the witnesses as to the number of calls, where they were received, and what was said during the telephone conversations and shortly afterwards.

17. Rebecca Gray said that, on 2 March 2002, she, Male and Tahnee Trenton were at Male’s house on Woodforde Road.  She said she received a telephone call between 10.00 and 11.00 pm shortly before leaving the Woodforde Road house and travelling to Shane Moroney’s house at Craigmore.  She said a female voice asked if Darren was there.  She said she heard male voices in the background.  Male then spoke on the telephone and she heard him saying “No, you won’t touch my house or me”.  She also said he said words to the effect that he had done nothing wrong.

18. Later in her evidence, Rebecca Gray said that during the telephone call she asked the female to identify herself.  The caller then gave a Christian name which is the Christian name of G (an accused in the trial whose name is suppressed).

19. Rebecca Gray said that, when they arrived at Shane Moroney’s house, she received an SMS message on the mobile telephone which stated “We’re on Woodford Road, where are you?”.  She said she reported this to Male.  They then went off in Male’s car.

20. Tahnee Trenton said she was at the Woodforde Road house when Rebecca Gray received a telephone call on the mobile telephone.  She heard Rebecca Gray say, “Why don’t you ring Darren’s mobile phone?”  She also heard her say, “And what do you want Darren for?”

21. Tahnee Trenton said that when they arrived at Shane Moroney’s house, Rebecca Gray received another call on her mobile telephone.  Trenton heard Rebecca Gray say, “So this is [referring to the Christian name of G] and you are on the corner of Woodforde Road and you are going to come and smash up Darren’s house?”  She said that, after the telephone call, Rebecca Gray told Male about it.

22. Greg Collaris said that when they were at Shane Moroney’s house, Rebecca Gray received a telephone call.  He said he could not hear the conversation, but Rebecca Gray was yelling into the telephone.  He said that shortly after the telephone conversation concluded he noticed that Male was angry.  Male then said that his house was going to be “smashed up”.  He also heard Shane Moroney say “Darren’s house is going to get smashed up”.  It was then that they drove off to Male’s house.

23. Lorinda Hembury, Moroney’s partner, said that she was at Moroney’s house when Rebecca Gray received a call on a mobile telephone.  She did not hear what was said but she could recall Rebecca mentioning to Male the name given by the caller and that, they were around the corner from his house.

24. Shane Moroney said that when he was in Male’s vehicle on the way to Male’s house, Male said that he had received a telephone call in the course of which he was told that that his house was getting smashed up, and that he could hear “all these guys in the background and things were getting smashed”.

25. Telephone records established that there were two telephone calls from G’s mobile telephone to Rebecca Gray’s mobile telephone during that evening.  The first call was at 10.51 pm and it lasted for one minute and 17 seconds.  There was a second call just after 11.23 pm, which was not answered.  There was a third call a few seconds later, which lasted for two minutes.  The records do not show that any SMS messages were sent.  Only two telephone calls were answered.

26. I have said that the prosecution alleged a joint enterprise to lure Male to his house on the pretext that it was being ransacked and that, after he parked on the service road near his house, they attacked him.  The case against G rested on the assertion that she had made the telephone call as part of the joint enterprise.  The trial judge warned the jury that Rebecca Gray’s evidence as to what G had said was not evidence against G, but could be relied upon for the purpose of explaining why Male left and drove to his house.

27. The following directions were given in relation to the other evidence which I have reviewed:

    Lorinda Hembury’s evidence was that after Darren Male had arrived with Rebecca Gray and Tahnee Trenton, Rebecca Gray received two calls on her mobile telephone. The first was received about 10 minutes after Darren Male and the two women had arrived. She did not pay much attention to what was said but, after the call, she saw Darren Male come into the room and she heard Rebecca Gray tell him that G had been on the phone. She did not take any notice whether anything else was said by Rebecca Gray about the call.

    Lorinda Hembury gave evidence of a second call some 10 to 15 minutes later, an estimate which she later revised to be a few minutes. She did not hear Rebecca Gray say anything, but noticed that she seemed to be agitated and uptight during the call. After the call had ended, Rebecca Gray then told Darren Male that it was [name suppressed] on the phone and they were around the corner from his house. Ms Hembury said that Darren Male left shortly after with Shane Moroney and Greg Collaris (S/U 196).

    . . . . . .

    Shane Moroney’s evidence was that he could not assist on the question of whether Rebecca Gray received any calls when she was at his house.  He told you that he did not know that G was involved.  His evidence was, however, that when driving to Darren Male’s house, Darren Male said that people were smashing his house, and that Darren Male had said [name suppressed] had rung him to say that his house was going to be smashed.  Shane Moroney added that he did not hear any of the calls and does not know that G made any of those calls.

    I repeat, ladies and gentlemen, that what Shane Moroney said in his evidence as to what Darren Male said en route to his house is not evidence of what G said.  Again, it is only evidence to explain why Darren Male left Shane Moroney’s house and drove back to Woodford Road.  It’s a matter for you, but you may wish to consider whether the speed at which he is said to have been driving is explained by the call. (S/U 197)

    . . . . . .

    Mr Collaris’ evidence was that Male then came into the room and said his house was going to be smashed up.  Collaris said he could not remember what Darren Male actually said.  He said the three of them the left and went to Woodforde Road.

    Again, what Collaris said in his evidence about what Darren Male said is not proof of the truth of what Darren Male said.  It simply can be used to explain why he left.  (S/U 197/198).

28. The only accused to challenge any of this evidence at the trial was G.  The challenge was restricted to the evidence of statements allegedly made to, or overheard by, Greg Collaris, Lorinda Hembury and Shane Moroney.  There was no challenge to the evidence given by Rebecca Gray in relation to any telephone conversation she had with the person who gave her Christian name during the conversation.

29. In the course of the argument to exclude this material, the scope of the application was limited further by Ms Brown for G.  When ruling on the application, the trial judge noted that Ms Brown had amended it so that it was limited to excluding only that evidence in each of the statements which asserted that the caller was G.

30. None of the evidence which is now the subject of grounds 1 and 2 in the consolidated notice of appeal was challenged by the appellants throughout the trial and no objection was taken to the trial judge’s directions as to the way in which that evidence could be used by the jury.

31. In Ratten v The Queen [1972] AC 378 at 387, Lord Wilberforce explained the importance of ascertaining the purpose for which a statement is tendered in deciding whether it contained hearsay elements. He said:

    The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility.  Words spoken are facts just as much as any other action by a human being.  If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken.  A question of hearsay only arises when the words spoken are relied on “testimonially”, i.e., as establishing some fact narrated by the words.

1. In Pollitt v The Queen (1992) 174 CLR 558 at 574, Brennan J gave examples of cases in which a statement can be used as original evidence, thus falling outside the hearsay rule. The first example was the situation where the making of the statement is itself a fact in issue, as in the case of uttering seditious words. The second category, which is of importance in the present case, is where the making of the statement is a ground for inferring a fact to be proved. An obvious example is where the statement reveals the state of mind of the person making it, as was the case in Subramanian v Public Prosecutor [1956] 1 WLR 965 and Walton v The Queen (1989) 166 CLR 283. In these cases the relevant statements were not relied upon to prove the truth of their content.

2. The immediate purpose for which the prosecution led the evidence in the present case was to establish that G had made telephone calls in order to put forward a pretext for luring Male to a location near his home.  There was evidence apart from what was said during the telephone calls which tended to establish that G made them.  I have referred to the telephone records.  There is no suggestion in the evidence that G telephoned Rebecca Gray in order to discuss some unrelated issue.

3. It is important to bear in mind that the impugned evidence relates to the communication of the false story allegedly used to lure Male to the scene.  As the story was false, there was no question of establishing the truth of what was said.  The relevance of the evidence lay in the fact of the communications and the effect they had on Male.

4. I have referred to the evidence given by Rebecca Gray that the caller gave her Christian name.  The statement by the caller could not be used to establish the truth of what was said.  However, there is relevance in the fact that the statement was made.  The fact that the caller gave her Christian name and that the name could be linked to G, is a matter which could be taken into account along with the rest of the circumstantial evidence.  The fact that calls were made from G’s phone to Rebecca Gray’s phone at a relevant time, and that the caller gave the Christian name of G, are matters which are relevant to be taken into account in deciding whether the inference can be drawn that G was the caller.

5. Tahnee Trenton’s evidence that she overheard the comments “Why don’t you ring Darren’s mobile phone?” and “What do you want Darren for?” were not testimonial statements tendered to prove the truth of their content.  Again, the fact that these words were spoken in the course of the telephone conversation can be used as evidence that the caller wished to say something to Male or convey a message to him.

6. Trenton’s evidence that she heard Gray say over the telephone “So this is [name suppressed] and you are on the corner of Woodford Road and you are going to come and smash up Darren’s house”, and that Gray then told Male what had been said, is also evidence relevant to Male’s state of mind.  It assists in providing an explanation for his actions.  It was not led to establish the facts narrated by the words.

7. The evidence by Greg Collaris that, shortly after the conversation, Male was angry and made the comment that his home was going to be smashed up is capable of establishing that he had just received information to this effect and was upset by it.  His evidence that Shane Moroney said, “Darren’s house is going to get smashed up” would be hearsay if its use was to prove that someone else was told this in the course of the telephone conversation.  However, it was admitted without objection and appears to have added little to the other evidence.

8. In my view, Lorinda Hembury’s evidence that she heard Rebecca Gray saying to Male that it was [name suppressed] on the telephone was admissible as a spontaneous comment made at the time of the telephone conversation.  But, if this is not so and the evidence was inadmissible, it did not add anything to the other evidence which indicated that the caller was G.  Her evidence that Rebecca Gray told Male that “they were around the corner from his house” is relevant in explaining Male’s subsequent actions.  The effect which this information had on his state of mind is revealed by Hembury’s further evidence that he said he was going to check on his house.

9. The evidence that Male told Shane Moroney that he had received a telephone call to the effect that his house was getting smashed up is, in my view, admissible evidence of Male’s state of mind.  This evidence, when taken in conjunction with his fast driving of the vehicle and the fact that he went to his house shortly after the telephone calls, supports the conclusion that he had received information to this effect as a result of the calls.

10. I have expressed the view that, leaving aside the hearsay statements which I have identified, the remainder of the evidence which is now complained of was admissible.  It is also relevant to note that only one aspect of the evidence, that relating to the identity of the caller, was challenged at the trial and then by only one of the appellants.

11. Grounds 1 and 2 of the grounds of appeal should be dismissed.

    Grounds 3 and 14

12. These grounds complain of the failure of the trial judge to give appropriate warnings to the jury in relation to the evidence of the witnesses Moroney, Collaris and Pine.

13. First, it was argued that an accomplice warning should have been given in respect of the evidence of Moroney and Collaris.

14. According to the prosecution evidence, Male, Moroney and Collaris drove from Moroney’s house to Male’s house in the same vehicle.  Before leaving Moroney’s house, Moroney picked up a piece of timber, broke it in half and placed both halves in Male’s car.  Collaris picked up a club-lock from the car when they arrived at the reserve opposite Male’s house.  Both Moroney and Collaris were present when the altercation took place in the reserve.

15. Although the issue was not raised before the trial judge, the appellants now argue that it is at least possible that Moroney and Collaris voluntarily took part in an affray.  If that was so, and they realised that someone might be murdered or subjected to unlawful and dangerous harm, it is said that they could be guilty of the murder or manslaughter of Male.

16. In determining who is an accomplice for the purposes of the corroboration warning applicable to accomplices, this court applies the test formulated in Davies v Director of Public Prosecutions [1954] AC 378; see also The Queen v Rigney (1975) 12 SASR 30 at 37. In so far as it is relevant for present purposes, it was held in Davies’ case at 400 that accomplices are “persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting in the case of misdemeanours”.  Since the abolition of felonies and misdemeanours, this definition requires adaptation to the current classification of offences.

17. The appellants argue that Moroney and Collaris should have been treated as accomplices because, on one view of the facts, they could be said to have aided and abetted the killing of Male.

18. Mr Cuthbertson QC, who presented the main argument on this ground, relied upon the case of R v Coney (1882) 8 QBD 534. The facts of that case are well known. A crowd of persons attended a prize fight. They took no active part in the fight. However, the jury were directed that, if the attendees encouraged the fight by their presence, they could be found guilty of aiding and abetting the offence of assault.

19. The convictions were set aside because of the wording of the direction which suggested that mere presence unexplained was conclusive proof of encouragement and so of guilt: 543.  However, it was not disputed that presence unexplained was evidence of encouragement.

20. In my view, Coney’s case does not support the argument put forward by the appellants.  In the case of an unlawful prize fight, the combatants strike each other.  They are each guilty of assault.  Support or encouragement of the fight can constitute an aiding and abetting of any assault which takes place.

21. This principle does not apply to the situation where there is a fight between two factions and a member of one faction is killed by a member of the other faction.  Liability for murder or manslaughter could not attach to a person who did not aid and abet the assault on the victim.  The intention to encourage must relate to an assault on a particular person or group of persons.  There is no suggestion in this case that the witnesses were supporting or encouraging an assault on Male.  Accordingly, there was no evidence to go to the jury that either witness was an accomplice.

22. It was argued in the alternative that, if the two witnesses were not accomplices in the strict sense, they were nevertheless witnesses with their own purposes to serve, and that an appropriate warning should have been given to the jury accordingly.

23. Mr Cuthbertson pointed out that Collaris and Moroney went to the scene of the incident with weapons and that they had their own purpose to serve in minimising their role.

24. Reliance was placed on Director of Public Prosecutions v Kilbourne [1973] AC 729 at 740 and R v Prater [1960] 2 QB 464. In Kilbourne, Lord Hailsham stated that it was “wise” to give a warning in such circumstances, and in Prater it was said that it was “desirable that, in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given”.

25. The English decisions were considered by this court in R v Sinclair and Dinh (1997) 191 LSJS 53. After referring to the three common law categories which required a full corroboration warning, Cox J, in a judgment with which Debelle J concurred, said at [11]:

    The strict rule of practice has now been abrogated in this State in the case of two of the three common law categories, although it will still be necessary for the trial judge to give the jury a special warning in the case of a child or the alleged victim of a sexual crime where the circumstances of the particular case call for it.  What is to be emphasized for present purposes is that a warning is needed where, without it, the jury, lacking a full appreciation of the risk that experience provides, may give too little weight to the danger of convicting on the uncorroborated evidence of a witness in one of the stipulated categories.

    It is important to note that these were the only common law categories that required a full corroboration warning.  No similar rule of practice was developed for witnesses who were of bad character or who might be actuated by self-interest or who might have exhibited ill will towards the accused.  Occasional movements in that direction have been made.  In Reg v Prater [1960] 2 QB 464, the English Court of Criminal Appeal, after holding that a particular witness in that case did not come within the accomplice rule, expressed the view that it was desirable that, in cases where a person might be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given.  Prater is cited periodically in this jurisdiction as authority for the existence of a fourth common law category but, so far as I am aware, it has never been so acknowledged in this State.  There are two things to be noted about Prater - the Court of Criminal Appeal, by using the word “desirable”, can hardly be supposed to have been laying down a new rule for trial judges in England and, secondly, the English courts have interpreted its reference to persons having interests of their own to serve as confined to witnesses who might have been participants or otherwise involved in the crime charged.  See Beck (1982) 74 Cr App R 221, at 227, and Reg v Cheema [1994] 1 WLR 147. In Reg v Kilbourne [1973] AC 729, Lord Hailsham of St Marylebone LC included (at 740) “persons of admittedly bad character” in the recognized common law categories, but his Lordship did not city any authority for that and his view does not appear to have been accepted in England or in Australia.

26. In my view a warning is not required, as a matter of course, in cases where a witness has a particular purpose of his or her own to serve.

27. However, it remains necessary to consider the circumstances of each witness in order to determine what directions were appropriate in relation to the evidence of each.  Mr Cuthbertson said that Collaris had a purpose of his own to serve in that he could have been charged with murder or manslaughter.  I have already dealt with the legal aspects of that submission.  However, it should also be said that there was no suggestion at the trial that the witness was of the view that he could be charged with such an offence.

28. Moroney was the most important prosecution witness, in that he described the events of the evening in detail.  However, I have expressed the view that he was not an accomplice for the purposes of the corroboration warning; nor was a warning required as a matter of course on the basis that he had some purpose of his own to serve.

29. The fact remains that he was quite hostile to the appellants when giving evidence.  He gave evidence over a period of two days and was cross-examined for seven days.  He frequently added comments to his answers which were critical of the appellants and their counsel.  Some of his comments led to an application to the trial judge to discharge the jury.  The trial judge’s refusal to do so is the subject of a separate ground of appeal which is discussed later in these reasons.

30. Reference was made to these matters in directions which the trial judge gave to the jury after Moroney finished his evidence.  His Honour said at 2189 – 2194:

    Before Mr Snopek calls his next witness, there are some remarks that I wish to make to you concerning the evidence of Mr Moroney.

    It is a matter for you, ladies and gentlemen, but you might think that he was plainly hostile to the accused and was going to say anything, whether it was relevant to the issues in this trial or not. You will have noticed he was unnecessarily talkative.  He made long speeches when short answers should have been given to questions. He added comments of his own. He did not comply either with the requests of counsel, nor my own requests, simply to answer questions. He was gratuitously insulting to counsel. On occasions, his language was profane. These are all factors to which you will have regard when assessing the reliability of his evidence.

    I wish particularly to instruct you in the firmest possible terms to comply with the directions which I am now going to give to you. I instruct you most firmly concerning particular remarks he made in the course of his evidence. The directions I am going to give you are on questions of law, so you must comply with them.  Most of the matters on which I am going to give you boil down to the simple proposition, a proposition which was said to you before the trial began; namely, that you will reach your verdicts in this case by considering only the evidence that you will hear in the course of this trial.

    Mr Moroney seemed to have his own ideas about how the prosecution should be conducted. For reasons which I will give you in a moment, his remarks were quite ill-informed. Mr Moroney displayed an ignorance about the process of bringing a trial to court. It is necessary, therefore, for me to direct you to ignore entirely some of his remarks. It may be that you have already identified what should be ignored in his evidence, but in order to ensure a fair trial, I refer to the following remarks of Mr Moroney which you will put behind you and will entirely ignore.

    I have mentioned Mr Moroney's rudeness to defence counsel. Quite improperly, and without a shred of justification, he most unjustly accused Miss Davey and other counsel of improper motives in defending the accused by making such remarks as 'You're only doing it for the money' and other like abuse.

    As you would be the very first to realise, ladies and gentlemen, those remarks were as unjust as they are untrue. I cannot be firmer than that. They were quite unjust.  They were quite untrue. These accused persons are entitled to a defence. Given your participation in this trial so far, you will be the first to be aware there are questions as to who was in the park on the night of 2 March 2002. There are questions as to why they were there. There are questions as to what each person did or did not do on that night. These questions must be examined carefully if these accused are to have a fair trial.

    In short, you will decide upon the evidence which you have heard whether the prosecution has proved its case, and by reference only to that evidence.

    In a similar vein, Mr Moroney accused some defence counsel on different occasions of delaying the commencement of the trial. It was implicit in his remarks that the trial had been delayed by them so that his recollection would be adversely affected. Again, these remarks were quite untrue and you will ignore them. Again, they were as unjust as they were untrue.  There is simply nothing to support them.

    As you know, ladies and gentlemen, it takes some time for police to investigate a crime. In this case, you have heard how as late as March and April 2003 Mr Moroney was being asked if he could identify persons. You will hear evidence of other police inquiries as late as 2004. Once police have completed their investigations, then there must be the committal proceedings. You have heard about these facts in the course of your instruction when you first presented yourself for jury duty.

    After the committal, the case must take its place in a queue of trials waiting to be heard. Sadly, there are quite a few trials. This causes delay in this matter coming to trial. In addition, there are other factors which cause delay, such as the availability of judges because they are engaged in hearing other cases.  All these facts demonstrate most clearly why I said to you earlier there simply is no basis for the fact of Mr Moroney's remarks concerning delay. They were quite untrue and must be ignored by you.

    Another of Mr Moroney's asides occurred when he was answering Mr Stokes' questions about his previous convictions. He asked if the record of the accused could be brought up.

    Ladies and gentlemen, there is simply no evidence these accused have any convictions. This was another of Mr Moroney's ill-informed and ignorant remarks and you will simply ignore them.

    In the same vein, Mr Moroney seemed to suggest that he knew how this case should be prosecuted. Again, he displayed a complete lack of knowledge and his remarks should be ignored. In this regard, I mention his remark, suggesting that Amanda Jones should be called as a witness. He said 'I'd like you to be able to call her in, but I know youse won't'.  The clear implication in those remarks was that Amanda Jones could give evidence supporting him in identifying some of the accused. He was implying that the defence was afraid to call the evidence. He attempted to reinforce this later by saying he had seen the statement to police made by Amanda Jones.

    In short, Mr Moroney was saying Amanda Jones could give evidence which would support the prosecution.

    Ladies and gentlemen, just a few moments reflection upon these wholly uninformed and ignorant remarks will clearly indicate just how pointless and stupid they were and why you will ignore them. Mr Snopek is the prosecutor, not Mr Moroney.  The defendants do not have to prove a thing. If, as Mr Moroney implied, Amanda Jones has made statements to the police which Mr Snopek believes would assist in the prosecution of these accused, there could be little doubt that Mr Snopek would call her as a witness in this trial.  Mr Snopek's duty is to call the prosecution witnesses.  In addition, he has a duty to call any witness whose evidence he believes would assist you in reaching a verdict. When Mr Snopek opened his case, he did not include Amanda Jones as one of the witnesses he intended to call. You may therefore infer that, in the prosecution view, she is not able to give evidence which would assist you. In other words, Mr Snopek is prosecuting this case, not Mr Moroney. Mr Snopek is an experienced prosecutor and Mr Moroney is not. We can safely ignore Mr Moroney's remarks.

    I have said before that you will decide the guilt or innocence of these accused only according to the evidence you hear. These remarks of Mr Moroney only serve to emphasise that fact.

    In the same vein is Mr Moroney's comment that he has girlfriends who were going to be called who will say how the accused was bragging to some identified persons about what they had done. Once again, ladies and gentlemen, this only serves to remind you that you will decide the guilt or innocence of these accused only by reference to the evidence led in the trial, not by reference to what someone believes someone else is going to say about what might or might not have been said at some unidentified time. You would be the first to realise the unreliability of evidence of what someone heard on the grapevine. How reliable could that evidence be?

    At times, Mr Moroney spoke of being threatened and said that his life had been disrupted. All of that must be weighed against the threats he made to the accused.

    It's a matter for you, ladies and gentlemen, but  you might think that this talk of threats made to him and made by him was mere chest beating. You might forgive me if I borrow Lorinda Hembury's expression and describe it as 'macho bullshit'. You will obviously simply ignore all of those remarks.

    Mr Moroney said the accused were too scared to participate in a line-up. You will entirely ignore that remark also. As you know, no-one is required to answer police questions. They may exercise their right to silence.

    In the same way, no-one is required to participate in a line-up. Importantly, there is no evidence that anyone refused to participate in a line-up. That is why the remark should be ignored.

    As a footnote to that question of line-ups, you would have noticed that, in the line-up in which Matthew Andrews participated, Mr Moroney did not identify him as one of those in the park that night.  This only serves to emphasise why Mr Moroney's remark should be ignored.

    Finally, ladies and gentlemen, I remind you of the direction I gave you last week. You will recall that Mr Moroney made a dock identification of both Evin Andrews and Matthew Andrews and mentioned their names.  I told you of the special dangers and unreliability of a dock identification. One obvious reason why there is particular danger in the dock identification made by Mr Moroney is that he could not earlier identify either Evin Andrews or Matthew Andrews when asked to do so by the police.

    I also told you I would be directing you later about identification and I will do that later at the close of the trial. At this stage, I do no more than repeat the instruction that you will entirely ignore those two dock identifications. That is a very firm instruction to you and please put it entirely from your mind.

1. Then, in his summing-up at 26 – 28 the trial judge had this to say:

   I come to Shane Moroney. Much has been said about the evidence of Shane Moroney and I will not repeat it all. You will, I am sure, recall the criticisms made by each of the defence counsel. Mr Snopek acknowledged that he was a difficult witness. After Shane Moroney had given his evidence, I gave you a warning about it. I remind you of some aspects of that warning now. Again it is a matter for you, ladies and gentlemen, but you might think that he was plainly hostile to the accused and was going to say anything, whether it was relevant to the issues in this trial or not. As Mr Tilmouth, I think, said, he appeared to have his own agenda.

   You will have noticed that he was unnecessarily talkative. He made long speeches when short answers should have been given. He added unsolicited comments of his own. He did not comply with requests simply to answer questions. He was gratuitously insulting to counsel, and on occasions his language was profane. Those are factors to which you will have regard when assessing the reliability of his evidence.

   Mr Moroney seemed to have his own ideas about how the prosecution should be conducted.

   In a similar vein, he accused counsel of delaying the commencement of the trial. It is implicit in his remarks that the trial had been delayed by some of them so that his recollection would be adversely affected. Now, as I said to you before, those remarks were quite untrue and you will ignore them. Equally, they were as unjust as they were untrue. There is simply no evidence to support them and you will remember, ladies and gentlemen, that as late as March and April 2003 police were still investigating aspects of this crime such as conducting identification parades.

   Quite improperly and without a shred of justification, he unjustly accused some counsel of improper motives in defending their accused. You will be the very first to realise, I am sure ladies and gentlemen, that those remarks were as unjust as they were untrue. These accused are entitled to have the benefit of a defence and counsel to assist them in that respect and, as I said to you earlier and as you would be too well aware by now, there are questions, real questions as to who was in the park on the night of 2 March 2002. There are questions as to why they were there. There are questions as to what each person did or did not do on that night and those are questions which must be carefully examined, if these accused are to have a fair trial.

   I referred earlier to the fact that Mr Moroney seemed to have his own ideas as to how the trial should be prosecuted and even as to the witnesses who should be called. Again, it is not for Mr Moroney but Mr Snopek to decide who should be called as prosecutions witnesses. His duty, as a prosecutor, requires him to call any witness whose evidence he believes will assist you in reaching your verdict. In other words, Mr Snopek is prosecuting this case, not Mr Moroney. You may infer that if Mr Snopek has not called any witness he did not believe that she was able to give you evidence which would assist you.

   In the same vein, was Mr Moroney’s comment, that he had girlfriends who were going to be called who will say how the accused were bragging to some unidentified persons about what they had done. I can only assume, ladies and gentlemen, that he was there referring to the witness Natasha O’Sullivan and you will recall that she was cross-examined at some length by Miss Davey on how she had fabricated her story about the accused bragging to persons about what they had done.

   Mr Moroney said that the accused were too scared to participate in a line-up. You will entirely ignore those remarks also. No-one is required to answer questions asked by the police. They may, as I have said earlier, have exercised their right to silence. In the same way no-one is required to participate in a line-up. And in any event, is Mr Moroney capable of identifying persons in a line-up? You will recall that in the line-up in which Matthew Andrews participated, Mr Moroney did not identify him as one of those in the park that night. This only serves to emphasise why Mr Moroney’s remarks should be ignored.

   Finally, I remind you of the occasion when Mr Moroney made that dock identification of both Evin Andrews and Matthew Andrews and mentioned their names. I reminded you earlier of the special dangers of unreliability of a dock identification, particularly because it carries with it the inference that because a person is in the dock he is guilty, when, of course, as you know, no such inference can be drawn. So you will ignore that as well.

   As I have said, the matters that I have mentioned might suggest to you that Mr Moroney had an agenda of his own and was prone to exaggeration. Counsel have criticised other aspects of his evidence. They refer to the inconsistencies and the different statements that he made to the police. They referred to his failure to disclose that he was carrying weapons in the first two statements he made to the police. They referred to unreliable aspects of his evidence. One instance is that he said that these accused, some of these accused had tattoos. It is an agreed fact that none of the accused have any tattoos on their arms, or elsewhere, save for Phillip Jones, who has one at a point on his arm which is not obvious.

   Reference was made to occasions when Mr Moroney would retreat to what was said to be some invention to resist examination of a topic. The most obvious of those is his answer that there was fogging of the windows which prevented him from clearly seeing the car ahead. You have agreed facts as to the temperature on that night and that it was a mild night.

   Reference was also made to his criminal convictions. The fact that a witness has a criminal record does not necessarily mean that he is lying when he gives evidence about an incident in which he has been involved. In short, ladies and gentlemen you do not disregard a person’s evidence simply because he has a criminal record. The proper approach is to put that matter into the scales along with all of the other matters which reflect upon the reliability and credit to which you will give to that evidence.

   It is entirely for you ladies and gentlemen to decide what weight you will give to the evidence of Mr Moroney. It is for you to decide whether you find his evidence reliable. It is for you to decide, whether you are satisfied you can act upon it. You might think that if the exaggeration is stripped aside, that there is a core of true fact. The question is, of course, how to distil out what is the core of true fact. One method you might wish to use is to take the view that you should not rely on his evidence unless there is other evidence from another witness or from some objective fact which supports his evidence. Again, those are matters for you, ladies and gentlemen, to decide when assessing his evidence.

2. And further in the summing-up at 87 – 89:

   Turning to Shane Moroney. In addition to the warnings I gave you about Shane Moroney’s evidence, defence counsel made the following points. They contended that he had an agenda of his own which meant that he was prepared to say anything which he thought might assist. Next, the criticism was that, when pressed in cross-examination, he resorted either to abuse of counsel or to fabrication. An instance of the latter is his evidence of his reasons for not seeing Jason Ugolini’s car in the access road, ‘because the windows had been fogged up’ - evidence which was inconsistent with objective evidence as to the temperature on that night.

   Other criticisms were that he did not, at first, disclose to the police the existence of the fact that he and the others, at the scene, had weapons. He made two statements to the police and it was not mentioned until his statement on 8 March.

   Counsel referred to what appears to be an arrangement of the two pieces of timber, Exhibit P18, with twigs on the grass. You will recall the photograph of the two pieces of wood. Counsel referred to the fact that the evidence of Ms Sellar suggests that Shane Moroney was fiddling with these weapons, notwithstanding his stated concern for Mr Male and they asked him why.

   Reference was made to his evidence about dropping his piece of wood, picking up the piece of pipe and attacking his assailants with that and I suggest that is really quite an incredible version of events.

   Counsel referred to the fact that in his original statement to the police there were four men in - what we now know as Jason Ugolini’s car - not five as he later stated.

   Reference was made to the fact in his earlier statements to the police there is no mention of Evin Andrews or, more accurately, of ‘the big fat guy’ or ‘the person with the undercut’, Evin Andrews on the one hand and Christopher Fuller on the other. I will come back to deal with that in more detail when dealing with the case of each of those accused.

   Reference was made to the fact that he described a number of people as having tattoos and, when it was demonstrated to him that none of the accused had tattoos, save for Phillip Jones, which was beneath his T-shirt, his response was simply: ‘whoopy-do’.

   Reference was made to the fact that he asserted there were more offenders than those charged, but of course that is wholly inconsistent with the prosecution case.

   Reference was made to the fact that he had to sell his house because of so-called stress, but he was living in that house until a few months before his evidence.

   Questions were raised as to his anxiety to leave the scene which he asserted in the witness box to you. That was contrasted with earlier evidence that he had given on two separate occasions, once at the committal and once at the voir dire hearing where it was quite plain that he knew and understood that the police needed information.

   Reference was made to the fact that he denied taking drugs. The issue here is not to attack him for taking drugs but, rather, to examine his reliability as a witness. As I have said, he denied taking them but Gregory Collaris said that he did use drugs. In the same connection concerning drugs, Mr Moroney said that Darren Male did not use amphetamines, but that is to be contrasted with the fact that Shane Moroney told Detective Zwart that Darren Male had been using them since meeting Rebecca Gray. Again, the issue is one as to credibility, not whether or not they were taking drugs on this occasion.

   There are inconsistencies said to exist in his story when it is compared with other evidence and, in particular, reference was made to the fact that the evidence of Ms Sellar belies, it is suggested, his evidence that he was chased over to the car park of the Red Lion Hotel.

   Finally, it was said that he was prone to exaggeration. There are particular issues concerning individual accused which I will mention when we come to the case against those accused.

   Those are matters for you to consider when weighing his evidence. As I said last week, you might think that there is a core of truth beneath the exaggeration. That is for you to decide. You might wish to consider also whether you should not rely on his evidence unless there is other evidence which confirms or supports it. Those are matters for you.

3. There are now a large number of cases which discuss the appropriateness of warning juries about the potential unreliability of witnesses and the need, in some cases, to give the jury a warning about acting upon the evidence of a particular witness.  There is a useful summary of this issue in the judgment of Mullighan J in R v Smith (No 2) (1995) 64 SASR 1 at 26:

   It is always the duty of a trial judge to give a warning appropriate to the circumstances in respect of a witness who is potentially unreliable.  As Gibbs CJ observed in Bromley v The Queen (1986) 161 CLR 315 at 319:

   “What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence.  Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is ‘Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?’: R v Spencer [1987] AC 128 at 161. There is nothing formal or technical about this rule.”

   Brennan J noted (at 325) that even in the accepted category cases, “the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice”.  He went on to say:

   “When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage of justice, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of the warning and the determinant of its content.”

   See also Longmanv The Queen (1989) 168 CLR 79 at 86. Once it is determined that a warning is required no set words are required and the terms of the warning are adapted to the particular circumstances: Director of Public Prosecutions v Hester [1973] AC 296 at 328; R v Spencer (at 135) and Longman (at 86). In some cases the danger of convicting an accused person upon the uncorroborated evidence of a potentially unreliable witness is so obvious that the jury is fully alive to it without a warning. In such cases no warning need be given: Bromley (at 324).

4. In the present case, the jury were well aware of the matters which it was appropriate to take into account when assessing Moroney’s evidence.  As it was put during the argument on appeal, the witness was obviously a “barracker” who felt very strongly about the appellants.  The trial judge reinforced these considerations at some length after the witness had given evidence and during the summing-up.  In my view, these directions went as far as was necessary in addressing those aspects of the evidence of the witness which could have affected his reliability.  I do not think it was necessary to go further and give a warning about accepting the evidence of the witness.

5. A further argument was put forward in relation to Collaris.  It was pointed out that he agreed in cross-examination that, on the night before the incident, he took “speed” and had some marijuana.  He also said he had two vodkas.  It was argued that this could have made the witness unreliable and that a warning should have been given to the jury about accepting his evidence.

6. The trial judge invited the jury to take into account certain matters which could affect the reliability of Collaris.  They included reference to the drinking of the witness and his taking of drugs.  No further direction was required in this respect.

7. In my view, the trial judge’s directions on the matters to be taken into account in the assessment of these witnesses were adequate.

8. A complaint that the warning given by the trial judge in relation to the witness Pine was inadequate is dealt with at [90] to [94].

   Ground 9

9. This ground complains that the trial judge erred in refusing to discharge the jury after the witness Moroney had made comments which reflected on the accused.

10. As is evident from the discussion of ground 3, this witness verbally abused cross-examining counsel on many occasions and made derogatory references to the accused.  After one of these outbursts counsel for the appellants applied for the jury to be discharged.

11. Mr Cuthbertson supplied this court with a summary of the evidence of Moroney which was the subject of complaint.  However, particular emphasis was placed on two incidents.  The first occurred when the witness was being cross-examined about his previous convictions and, in the course of an answer to a question about a good behaviour bond, he said at T 1963:

    I knew what my bond was.  I still haven’t broken it.  I am still here.  I didn’t break it.  Can you bring their record up?

12. At an earlier stage in the cross-examination he was being asked questions about identification and he gave an answer at T 1668 which included the following comment:

    I wanted line-ups, youse were too scared to do it.

13. In addition, the witness made comments to the effect that the accused were guilty; that they had threatened him, that they were not manly enough to admit guilt; and that they had failed to call a particular witness, the implication being that the witness would not give evidence favourable to them.

14. The trial judge refused to discharge the jury.  I have already referred to the directions which he gave on these matters, both during the evidence and in the summing-up.

15. The jury were well aware of the witness’s feelings in relation to the accused.  I have not overlooked Mr Cuthbertson’s submission that the jurors might have seen some logic in some of his comments and I have given particular consideration to the comment about “their record”.  However, this did not necessarily imply that all or some had criminal records.  In my view, the trial judge’s comments were sufficient to prevent the jury from drawing an inference from the witness’s remark which was adverse to any of the accused.

16. In Maric v R (1978) 20 ALR 513 at 520, Gibbs CJ held that the issue on appeal in a case such as this was whether the court was able to conclude that no miscarriage of justice had taken place by reason of the fact that the incident had not affected the verdict. See also the case of Van De Wiel v R (Doyle CJ, Duggan  and Nyland JJ, 3 August 1995, unreported).  In my view, the trial judge’s directions about the remarks and attitude of the witness Moroney would have prevented the occurrence of a miscarriage of justice.

17. I would dismiss this ground of appeal.

    Ground 10

18. A further ground of appeal relates to the evidence of the witness Rachel Pine.  As has been said, this witness is the partner of Evin Andrews.  The evidence which the prosecution wished to lead from her included an incident which is alleged to have occurred in a nightclub in the city on the evening before the alleged offence.  The prosecution also wished to lead evidence from her that she saw a number of the accused both before and after the alleged offence.  According to statements she gave to the police prior to the trial, she was able to give evidence of the statements and actions of some of the accused which implicated them in the killing of Male.

19. It was apparent shortly after the witness commenced her evidence that she claimed not to recall any aspect which reflected adversely on any of the accused.  The prosecutor continued to ask her questions about events on the night of the alleged offence and the previous night.  She persisted in her claim of lack of memory.

20. The prosecutor then applied to the trial judge for a declaration that the witness was hostile, thus enabling cross-examination of her by the prosecutor.  A voir dire hearing took place in the absence of the jury which resulted in a declaration that the witness was hostile.

21. The trial judge found that the witness frequently said she did not remember facts which were not likely to be forgotten.  The witness accepted that her deposition accurately reflected what she told the police.  However, the trial judge found that she could not give any satisfactory reason for her claimed lack of recall.

22. The witness said she had been taking antidepressants, but the trial judge rejected this explanation for her claimed inability to recall events.

23. The trial judge said in his ruling:

    33Ms Pine gave evidence that what is contained in her statement to the police was true.  I accept that evidence.  Her statement was given within two weeks of the events occurring when the facts would have been quite fresh in her memory.  It has not been demonstrated that her recollection of those facts is inaccurate.

    34In her statement to the police, the witness recounted events before and after the incident in the park on 2 March 2002 in considerable detail.  Given the nature of those events, it is not surprising that she was able to recall the events in detail when giving her statement to the police.

    35The contrast was remarkable between what she recounted to the police and the detail of that account and what she was prepared to state in the witness box.  The sheer totality of what was contained in her statement demonstrated most forcibly that she was in a position to give evidence concerning a number of events before and after the incident in the park.  This was not an instance of a witness not coming up to proof but, instead, a witness who was doing her utmost not to give evidence about relevant events.  It was apparent that she did not wish to give evidence about those events and would resort to ingenuous stratagems in an attempt to prevent doing so.  The stratagem most frequently used was to assert an inability to remember facts.  For the reasons already given, while I accept that she might have forgotten details of particular events, I do not believe she would have forgotten the main events of this night.

1. Section 27 of the Evidence Act 1929 provides as follows:

   A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but if the judge is of opinion that the witness is adverse, the party may –

   (a)contradict the witness by other evidence; or

   (b)by leave of the judge, prove that the witness has made, at any other time, a statement inconsistent with his present testimony: Provided that, before giving such last-mentioned proof, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.

2. The test for determining an application under the section was summarised by King CJ in R v Hutchison (1990) 53 SASR 587 at 592. After referring to the joint judgment of Dixon CJ, Kitto and Taylor JJ in McLellan v Bowyer (1961) 106 CLR 95, the former Chief Justice said:

   I deduce from the passage cited that the correct test as laid down by the High Court is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him or for the advancement of justice.  The test so formulated does not depend upon the motive of the witness in withholding evidence or, of course, giving false evidence.  I think that the High Court, by implication, affirmed the views on this point expressed by Sholl J in R v Hayden.  If a witness gives false evidence or withholds evidence by reason of an unwillingness to tell the truth or the whole truth at the instance of the party calling him or for the advancement of justice, it matters not whether his motive is hostility to the cause of the party calling him, sympathy for the cause of that party's opponent, desire to advance or protect his own interest in some way, or some other motive.  The crucial consideration is that the party calling the witness is unable, by reason of the witness's unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions.

3. According to the appellants’ argument the prosecutor did not question the witness in a way which was likely to elicit appropriate answers from her.  I cannot agree with this argument.  The fault did not lie in the questioning.  The prosecutor asked questions which were appropriate and would have elicited answers if the witness was prepared to co-operate.

4. It was also said that the witness should have been given permission to refresh her memory from her statements to the police.  The witness gave an account of the incident to the police two weeks after it had occurred.  In determining whether to grant leave to refresh memory, the court would have to be satisfied that there was a genuine need to refresh memory.  It is clear that this was not so in the present case.

5. Next, it was said that the witness’s medication may have affected her recall.  This explanation was rejected by the trial judge.

6. I am satisfied that the trial judge adopted the correct procedure for determining the application and applied the appropriate test. It has not been demonstrated that the findings of fact which he made were not open to him or that he erred in some other way in reaching the conclusion that the witness was adverse. Section 27 provides for a discretion to be exercised by the trial judge (McLellan v Bowyer at 102) and it has not been demonstrated that there was an error in the exercise of that discretion in the present case.

7. There was a further argument that the trial judge’s directions to the jury on the fact that Ms Pine was cross-examined by the prosecutor were inadequate.  An earlier ground of appeal complains of an inadequate warning to the jury in relation to this witness, and it is appropriate to deal with both of these aspects at the same time.

8. When dealing with Ms Pine’s evidence, the trial judge said at S/U 22:

   There are two things I want to say about her evidence. The first is a warning concerning her mental state.  The second relates to the fact that Mr Snopek was permitted to cross-examine her. I deal first with her mental state.

   You will recall that Rachel Pine admitted that she had been receiving treatment for a mental condition for several years. She admitted that she was taking medication and, in particular, antidepressants for that condition.  You would have observed her demeanour in the witness box.  It is a matter for you, but you might have believed that there were occasions when she was fractious, and other occasions when she was displaying an unreasonable degree of irritability.  You may have made other observations.  Again, it is a matter for you, ladies and gentlemen, but at times she seemed unwilling to give evidence. Often she responded by saying ‘I don’t remember’, particularly when Mr Snopek first began asking her questions.  Again it is a matter for you, but you will consider Mr Snopek’s submission that one factor which may have affected the manner in which she gave her evidence was that some of that evidence was against her de facto husband and her brother-in-law and their friends, and that she was trying to avoid giving that evidence.  That is a matter to which you might wish to have regard. I repeat, it is entirely for you to decide.

   At all events it will, I think, be abundantly clear to you, ladies and gentlemen, that you should examine her evidence very carefully.  You must scrutinise it with considerable caution.  However, if you are satisfied that her evidence, or part of her evidence, is accurate, it is open to you to act on that evidence.

   There are some other criticisms of Rachel Pine which I will come to in a moment, but let me now turn to the fact that Mr Snopek was allowed to cross-examine her, despite the fact that she was a witness Mr Snopek himself had called.

   As some counsel mentioned to you, that is an unusual course.  Generally speaking, the party who calls a witness is not permitted to ask questions of that witness in cross-examination.  However, in some cases the judge has a discretion to permit a party to cross-examine his own witness and I allowed Mr Snopek to do that in this case.  There are two observations I want to make about that.

   First, the fact that Mr Snopek exercised the right to cross-examine Rachel Pine - perhaps I will restate that - the fact that Mr Snopek was permitted to cross-examine Rachel Pine indicates that Mr Snopek does not put Rachel Pine forward as a witness of truth, but rather as one from whom the truth must be extracted, if at all, by cross-examination.  In this respect Mr Snopek put to her the statement she made to the police and asked her if she agreed that it was true.  You will recall he took her through it, as it were, line by line. She responded by saying that it was true.

   Later in cross-examination, she disagreed with much of that statement.  You have heard criticisms by counsel of the manner in which she departed from her statement originally made to the police.  You will have regard to those criticisms and form your own judgment as to the reliability of her evidence.

   That point leads me to the second point I wish to make which is this.  It is for you, ladies and gentlemen, not for me or for Mr Snopek to determine the reliability of the evidence of Rachel Pine.  That evidence concerns matters of fact, which, as I have said to you earlier, are matters which you must decide.

9. The trial judge went on to consider specific criticisms of the evidence of the witness which had been made by counsel for the accused.

10. In my view, the trial judge adequately explained the significance of the fact that the prosecution was permitted to cross-examine the witness.  Furthermore,  he gave adequate directions to the jury on the need to examine her evidence carefully and scrutinise it with considerable caution.

11. The trial judge did not err in declaring the witness hostile or in his directions to the jury on the manner in which her evidence was to be assessed.

    Grounds 4 and 16

12. These grounds assert that the trial judge invited the jury to use out of court statements made by the accused Fuller and Evin Andrews as evidence against all accused.  It is also asserted that the trial judge directed the jury that those statements were capable of supporting the evidence of the witnesses Pine, Moroney and Collaris in the case against all accused.

13. The trial judge gave frequent directions to the jury, both in the course of the evidence and in his summing-up, on the importance of deciding the case against a particular accused on the evidence which was admissible against that accused.  The directions specifically referred to out of court statements by co-accused.  A typical example is at S/U 93:

    I remind you again of the other important matter in this case. It is something to which I have drawn your attention throughout the trial that you must consider the case against each accused by reference only to the evidence which is admissible against that accused. I am sure that this instruction has been by now repeated so often to you that you are quite clear as to what evidence is admissible against all accused and what evidence is admissible against only one individual accused. But forgive me if I point out in the course of this direction evidence which is admissible only against particular accused. Broadly speaking, in this case the position is that the evidence of what one accused has said to other people, be they police officers or others, is admissible only against that accused. Similarly, items of clothing and the like belonging to one accused is admissible only as evidence against that accused.

14. When discussing the statements made to the police by the accused Evin Andrews and Christopher Fuller, his Honour said at 157:

    First, to repeat what I have said earlier, that the statements are evidence only against the maker of the statement, that is to say, in the one case Evin Andrews, and in the other case Christopher Fuller. It is not evidence against any other person, even though the statement does contain remarks as to what other people did.

15. Similar warnings were given at the time these two witnesses gave evidence: T2322, T2336 and T 2441.  These warnings were given in strong terms.

16. However, complaint was made that, in some parts of the summing-up, the jury were invited to have regard to the statements made by Fuller and Evin Andrews in assessing the reliability of the witnesses Collaris, Moroney and Pine in relation to the evidence which those witnesses gave against all accused.  Attention was drawn to the directions set out below.

17. In the course of dealing with Pine’s evidence, his Honour said at S/U 24:

    Those are all matters, ladies and gentlemen, that you should consider when assessing the reliability of her evidence. You might also wish to consider whether there are aspects of her evidence which have been proved which are shown to be consistent with her account. She said that Jason Ugolini was driving a motor car. Jason Ugolini has admitted driving his car and being at the park that night. She asserted that Christopher Fuller was driving a motor car. Christopher Fuller has admitted being in his car and driving it to the park that night. She said that Evin Andrews said that he was going with those persons. Evin Andrews has admitted going to the area of the park in the car driven by Christopher Fuller. Christopher Fuller has also admitted being in the area of the park as she has said. She said that Evin Andrews was wearing a yellow jumper. Evin Andrews admits that he was wearing a yellow jumper that night. Those are but five or six matters where her evidence is consistent with proven facts. I repeat, they are all matters for you to consider, whether you are prepared to rely on any part of her evidence or reject it.

18. When referring to the evidence of Moroney, the trial judge said at S/U 28:

    It is entirely for you ladies and gentlemen to decide what weight you will give to the evidence of Mr Moroney. It is for you to decide whether you find his evidence reliable. It is for you to decide, whether you are satisfied you can act upon it. You might think that if the exaggeration is stripped aside, that there is a core of true fact. The question is, of course, how to distil out what is the core of true fact. One method you might wish to use is to take the view that you should not rely on his evidence unless there is other evidence from another witness or from some objective fact which supports his evidence. Again, those are matters for you, ladies and gentlemen, to decide when assessing his evidence.

19. According to the argument, the trial judge suggested to the jury that evidence which was not admissible against all accused could nevertheless be used in a less direct manner as support for Moroney’s credibility generally.

20. The jury retired for a break shortly after these directions had been given and counsel for Matthew Andrews took the opportunity to submit to the trial judge that the directions authorised an impermissible use of the evidence.  It was argued that the directions, particularly those concerning the assessment of Pines’ credibility, invited the jury to use out of court statements made by individual accused as supporting the credibility of the witnesses generally.  According to the submissions, the effect of the directions was to allow out of court statements by particular accused to be used for the purpose of assessing the reliability of the evidence of the witness Pine in respect of all accused.  The trial judge rejected this submission.

21. Later in his summing-up, the trial judge referred to the evidence of Collaris and Moroney as to what happened in the early stages of the incident at the park.  His Honour was dealing with what he described as the factual framework of the case within which the relevant issues were to be considered.  He said (S/U 50):

    Ladies and gentlemen, in his second statement to the police on 7 March 2002, Christopher Fuller said that he got out of his car because he heard Adam Ugolini calling out “Fuller, Fuller”. In his statement he said “I should say I exited my car because Adam was screaming ‘Fuller, help’”. Ladies and gentlemen I do not - I repeat, I do not mention this as evidence against Adam Ugolini. You must decide who called out from the evidence of Greg Collaris and Shane Moroney. Instead, I mention it because Christopher Fuller confirms that part of the evidence of Greg Collaris and Shane Moroney in which they said that they heard someone call out “Fuller, Fuller”. Evin Andrews also confirms someone called out “Fuller, Fuller”, and to that extent his evidence confirms the evidence of Greg Collaris and Shane Moroney that they heard someone call out those words.

    It is a matter for you, ladies and gentlemen, but in light of what is contained in the statements of Christopher Fuller and Evin Andrews, you might well be satisfied that Greg Collaris and Moroney were truthful when they said that someone called out “Fuller, Fuller”. Again it is a matter for you, but you might be satisfied that the person who called out those words was Adam Ugolini.

    According to Greg Collaris, after Adam Ugolini called out “Fuller, Fuller”, he saw six to seven males coming from the direction of Woodford Road. Shane Moroney’s evidence was that seven or more people came from the direction of Woodford Road. Ladies and gentlemen, both Tabatha Keal and Theresa Sellar saw a car parked on Woodford Road. Tabatha Keal said that three, maybe five, men ran towards the park from that car.

    Christopher Fuller admitted in his statement that he stopped on Woodford Road on the edge of the park and got out. Thus, there is other evidence confirming that Christopher Fuller at least was in the vicinity of Woodford Road. You will have to determine how many persons came from that car on your assessment of the evidence of Greg Collaris and Shane Moroney and Tabatha Keal. I will deal later with the evidence as to who is alleged to have struck Darren Male.

    Those are matters, ladies and gentlemen, which provide something of the factual framework in which you may wish then to consider the issues.

22. At S/U 88, after referring to various criticisms of Moroney’s evidence, the trial judge said:

    Those are matters for you to consider when weighing his evidence.  As I said last week you might think that there is a core of truth beneath the exaggeration.  That is for you to decide.  You might wish to consider also whether you should not rely on his evidence unless there is other evidence which confirms or supports it.  Those are matters for you.

23. Counsel for Jones expressed concern at the directions in the passage quoted at S/U 50 during another adjournment.  He stressed that the statements made in the interviews of Evin Andrews and Fuller could only be used to enhance the credibility of Moroney and Collaris in the cases of Andrews and Fuller respectively.  The trial judge commented that he had made that position clear.

24. The attention of this court was also drawn to passages in the summing-up where it was claimed that the trial judge referred to facts which were admissible against one accused only, as though they were a part of the case against all accused.  In particular, reference was made to a passage in the summing-up at 46.  The passage was part of a segment of the summing-up which the judge described as aspects of the factual framework of the case, within which the jury might consider the issues of the case.  His Honour said:

    Now, ladies and gentlemen, we know that there were three cars in the park at about this time. There was evidence from a number of witnesses which establish that fact and it does not appear to be in dispute. Greg Collaris and Shane Moroney say that Darren Male drove his car to the access road and, as we know, it was still there when the police and others arrived.

    Jason Ugolini has admitted that he was the driver of the other car which was parked in the access road, the white Mitsubishi Colt. Christopher Fuller has admitted in his statement to the police that he drove his car and parked it in the parking bay on Woodford Road, and when I speak of ‘the parking bay’, ladies and gentlemen, I refer to the indented portion of Woodford Road which passes across the front of Mr Jeromin’s house.

    Again, it is a matter for you, but the evidence suggests that there were three cars in the area.

    The next question is in what order did the cars arrive and who was in each car. The evidence seems to be that the only persons in Darren Male’s car were Darren Male himself, Greg Collaris and Shane Moroney. We know that Jason Ugolini was driving his car. That, as I have said, has been admitted. If you accept the evidence of Greg Collaris and Shane Moroney, Phillip Jones was in Jason Ugolini’s car and, again if you accept the evidence of both those witnesses, Robert Ugolini and Adam Ugolini were also in Jason Ugolini’s car. If you are satisfied about that evidence, and I remind you you should be satisfied beyond reasonable doubt, that establishes that there were four people in Jason Ugolini’s car. Was there a fifth person in that car, and if so who was that person? As you know, that was one of the issues in the trial and I will come back to it.

    The evidence suggests that there were others in Christopher Fuller’s car. The evidence of Tabatha Keal and Theresa Sellar suggests that fact. The question is who is in that car? And, of course, what did they do? Evin Andrews says that he was one of the passengers in Christopher Fuller’s car. The issue as to the other passengers is a matter to which I will return.

    As I have said, Greg Collaris and Shane Moroney both identified Adam Ugolini and Robert Ugolini as being in the park. Both of them knew Adam and Robert Ugolini. If you accept that evidence then, as I have said, Robert Ugolini and Adam Ugolini were in the park or very close to it. On the basis of those admissions and that evidence, we can proceed on the basis that six of the male accused were present at or near the park. I should have added that to determine this, you should also accept the evidence of Greg Collaris and Shane Moroney that Phillip Jones was also in the park. So if you accept all of that evidence there were six persons in the park. They were Adam Ugolini, Jason Ugolini, Robert Ugolini and Phillip Jones, those four and, on the basis of the admissions they made, Evin Andrews and Christopher Fuller were near the park.

    What I have so far recited might be said to be fairly clearly established but I repeat and reaffirm, ladies and gentlemen, that you have the sole responsibility for deciding the facts and you are entitled to disagree with what I have suggested to you.

1. Before analysing what the trial Judge did or did not do in relating the directions on the law to the facts concerning a particular individual appellant, it is necessary to analyse a little more closely the circumstances in which the Judge considered that murder or manslaughter by aiding and abetting could arise.

2. At a relatively early stage in the summing‑up, before he had issued any written directions to the jury and before he had discussed the elements of murder and manslaughter, the trial Judge discussed the general nature of the Crown case and the principles of joint criminal enterprise which was at the core of the prosecution case.  He then explained the principles of aiding and abetting a crime.  In doing so, at the outset, he said that it was not part of the prosecution case that either G or Matthew Andrews was guilty on the ground of aiding and abetting.  This was repeated later on, and at no stage did the prosecutor suggest that the trial Judge was mistaken.

3. In explaining aiding and abetting to the jury the trial Judge said, in part:

   Let me deal with the question of legal principle. If you were to find, for example, that there was no joint enterprise but that some of the accused who - for convenience, I will call the perpetrators - committed the crime of murder and the rest of the accused, by their presence at the scene, aided and abetted the commission of the crime of murder, those who aided and abetted the perpetrators would be equally guilty of the crime of murder. The law says that those who aid and abet the commission of a crime will be convicted in the same way as the perpetrator or perpetrators of the crime. They will be jointly liable with those who actually committed the crime.

4. He then went on to explain the elements of aiding and abetting and continued:

   Thus, applying those principles to the facts of this case, if you are satisfied beyond reasonable doubt that an accused was aware that the perpetrators were attacking Darren Male with the intention of killing him or of inflicting grievous bodily harm upon him, and intentionally assisted or encouraged the commission of that crime, or conveyed an assent to or concurrence in the commission of the crime, that person is an aider or abetter.

5. The directions which immediately followed maintained a clear distinction between the perpetrator of the crime, being the person who actually attacked and killed the deceased, and a person who was not an immediate party to the attack.  One further example will suffice:

   So if you are satisfied beyond reasonable doubt that each of the accused participated in the killing of Darren Male by causing him grievous bodily harm, either as the perpetrator of that crime or as an aider or abetter, but you are not satisfied as to the actual extent to which each participated, you are entitled to return a verdict of guilty against each of them, … [Emphasis added]

6. When the trial Judge handed out the first written aid entitled “Summary of Directions – Some Legal Principles” he did not discuss aiding and abetting at that time, but the document contained the following summary:

   Aid and Abet (this may not concern all accused)

   A person who aids and abets the commission of a crime is equally guilty of that crime as the person who commits the crime.  A person aids and abets the crime of murder if the Crown proves beyond reasonable doubt that person is present and aware that another person is attacking the victim with the intention of killing him or inflicting grievous bodily harm upon him and intentionally assists or encourages the commission of the crime in one of the following ways: …

7. Once again, a distinction was made between the person attacking the victim and the person aiding and abetting.

8. The next mention of aiding and abetting was after handing the jury the first draft of the first decision tree in relation to the appellant Jones.  The Judge had earlier explained that this document, of which there would be one for each accused, “sets out the route you may care to consider”, but the Judge added that the jury might reject it if they wished.  However, given the number of defendants and the complexity of the issues in relation to each, one would expect that the jury would welcome such assistance in facing such complex issues.

9. Section E of the decision tree in the case of each appellant contained suggested questions which the jury should ask themselves concerning aiding and abetting murder.  As with other sections of the suggested decision tree, the questions were directly related to and incorporated the directions as to what constituted (in this case) aiding and abetting the circumstances of murder.  Section E has been set out in full by Duggan J.  I will not repeat all of it.  However, for present purposes it is necessary to note the first three questions which the jury was invited to consider:

   E1Are you satisfied that one or more of the accused other than [Jason Ugolini] murdered Darren Male?  For convenience those accused are called “the perpetrator(s)”.

   E2Are you satisfied that, at the time when the perpetrator(s) were striking Darren Male, [Jason Ugolini] was present at or near the place where the blows were being struck and in a position to do any of the acts listed in para E4?

   E3Are you satisfied that, at the time when the perpetrator(s) were striking Darren Male, [Jason Ugolini] knew that the blows were being struck with an intention to cause really serious bodily harm to Darren Male or to kill him?

   [Emphasis added]

10. Question E1 was the question that was qualified by the oral direction discussed earlier in these reasons.

11. In each question there is a difference between the “perpetrator(s)” as the attacker(s) or person(s) striking the deceased and the accused in question who, it is assumed, is not an attacker.  The importance of that was brought home to the jury when introducing this section of the decision tree when discussing the case against the appellant Jones.  The Judge said:

    Section E deals with aiding and abetting murder. The first question is: ‘Are you satisfied that one or more of the accused other than Phillip Jones murdered Darren Male?’. For convenience I will call those persons ‘the perpetrators’.

    Ladies and gentlemen, you will see that each section depends upon a certain starting point. If you have reached a decision earlier your decision on the starting point may be easy, depending by which process you are determining these issues.

12. The distinction between the attacker and the accused being discussed was again made a little later when discussing the same section:

    If you are satisfied that at the time when the perpetrators were striking the blows Phillip Jones knew the blows were being struck with an intention to cause grievous bodily harm to Darren Male or kill him, if you are satisfied about those matters you go to E4, which is ‘Did he do any of those acts?’

13. It is therefore apparent that, if the jury followed the decision tree, the only circumstances in which they would consider murder or manslaughter by aiding and abetting would be circumstances where the jury was not satisfied that the accused under discussion was a “perpetrator”, and therefore that the jury was not satisfied that he participated in the attack.  Participation in the attack was a matter in dispute in respect of most if not all of the accused.  So Section E was only concerned with considering the position of an accused who was not proved to have committed the actus reus of murder or manslaughter and who could not, on the finding of the jury, be a principal offender.

14. This explains why aiding and abetting was not left in relation to the defendants Matthew Andrews and G.   There was no evidence from eye witnesses identifying Matthew Andrews as being present at the scene.  There was some weak circumstantial evidence to support the only evidence on which the prosecution relied which might put him at the scene and which indicated the nature of his involvement.  That latter evidence was the evidence of Anthony Vella, a friend of Matthew Andrews, that, in the course of a telephone conversation shortly after the bashing of the deceased and in relation to it, Matthew Andrews was alleged to have said, “We – Robert, Adam, Phillip, Jason, Evin and Chris – we smashed the fuck out of him”.

15. When directing the jury in respect of Matthew Andrews and the decision tree relating to him, the Judge said:

    You will recall, by reference back to the document in relation to Phillip Jones, there is a section which deals with aiding and abetting. There is no such section in respect of Matthew Andrews because the Crown case is based on the proposition that he was there and he attacked Darren Male, and it is as absolute as that. It doesn’t descend to the alternative of aiding and abetting. That’s why it is not here and that’s why I thought I should explain it to you.

16. In other words, the only evidence against Matthew Andrews concerning his presence at the scene was that he was one of the attackers.  Consistent with the view taken by the trial Judge throughout the summing‑up, the question of aiding and abetting did not arise if the jury found that the accused in question was one of the attackers.

17. There was no direction concerning aiding and abetting in respect of G.  While there is no evidence that she was an attacker, the directions on aiding and abetting were nevertheless not relevant to her because there was no evidence that she was present at the scene at the time of the attack.

18. One of the consequences of this approach to aiding and abetting by the trial Judge was that, if the jury followed the directions and the decision tree, they were denied consideration of aiding and abetting as a participant in the attack and in the manner contemplated in the Privy Council in Mohan v The Queen.[18]  In that case, two persons attacked the victim in circumstances where a pre‑arranged plan could not be inferred.  It was not possible to tell whose blow or blows killed the victim, but both were attacking the victim.  Both had a common intention to inflict grievous bodily harm.  Lord Pearson, delivering the judgment of the Privy Council, said:[19]

    The two appellants were attacking the same man at the same time with similar weapons and with the common intention that he should suffer grievous bodily harm.  Each of the appellant was present, and aiding and abetting the other of them in the wounding of Mootoo.

    That is the feature which distinguishes this case from cases in which one of the accused was not present or not participating in the attack or not using any dangerous weapon, but may be held liable as a conspirator or an accessory before the fact or by virtue of a common design if it can be shown that he was party to a pre‑arranged plan in pursuance of which the fatal blow was struck.  In this case one of the appellants struck the fatal blow, and the other of them was present aiding and abetting him.  In such a case the prosecution do not have to prove the accused were acting in pursuance of a pre‑arranged plan.

    [18] [1967] 2 AC 187.

    [19] Ibid at 194.

19. That that possibility of a verdict of murder or manslaughter by aiding and abetting was not left to the jury in this case was not detrimental to the appellants or indeed to any of the accused, including Matthew Andrews.  Indeed, it was to their benefit, in that a possible route to guilt plainly open on the evidence was denied to all of them.

20. The approach of the trial Judge to the directions on aiding and abetting has a number of consequences for the grounds of appeal which allege a failure to relate the law to the relevant facts.  I turn first to the argument that, in respect of each appellant, the trial Judge did not relate the directions on law to the facts.

21. A summary of the structure of the trial Judge’s summing‑up has been given by Duggan J.  I will not repeat it.  When turning to discuss the evidence relating to each individual accused, the trial Judge explained that he would deal with the eight accused in four representative groups.  The first group were the three Ugolini brothers and Phillip Jones, all of whom are the present appellants.  The second group comprised Evin Andrews and Christopher Fuller.  The third group was Matthew Andrews and the fourth group, G.  The Judge stressed that this was an informal grouping for convenience and had no other significance.  He stressed that the jury would need to deal separately with the case against each individual accused.

22. The Judge spoke in general terms of the first group.  I mention that because it represents a preface to what was said about the evidence concerning each of the appellants.  He spoke of the prosecution case being that there was “strong evidence” that they travelled in the same car driven by Jason Ugolini, and he summarised the prosecution evidence of their role and identification at the scene:

    The prosecution alleges that all four of these men were party to the joint enterprise to lure Darren Male to his house and there attack him with the intention of causing him grievous bodily harm or killing him. The Crown says that it is self-evident that attacking a person with weapons will result in that person at least suffering really serious bodily harm. The Crown also says that because the joint enterprise was agreed upon, and it was being undertaken with weapons, it is self-evident also that at no time did any of these accused act in self-defence or in defence of another one of them.

23. The mention of the alternative case of aiding and abetting was immediately followed in these terms:

    The Crown puts its alternative case by saying if you are satisfied that there was a joint enterprise of the kind I have described, one or more of the accused other than Matthew Andrews and G aided and abetted the commission of the crime of murder.

24. The reference in that passage to a joint enterprise “of the kind I have described” refers to the possibility of a joint enterprise of any two or more.  The reference to one or more of the accused refers not only to this group of four but to Evin Andrews and Christopher Fuller as well, thus implying that the Crown case in respect of any accused not found guilty of murder as a principal or as participating in a joint enterprise relies, in the alternative, on aiding and abetting.  That was consistent with the Judge’s view that aiding and abetting could only apply to an accused who was not an attacker or “participant”.

25. The trial Judge then addressed the evidence in respect of each individual accused, beginning with the evidence relating to the appellant Jones, at the end of which he explained in some detail the decision tree as it applied to Jones.  It was not necessary to repeat that in respect of other defendants, except Matthew Andrews and G, because the decision tree was identical for each accused.  I have already referred to the reason why Matthew Andrews and G were excluded.

26. There was no complaint about any failure to address the facts in relation to the alleged joint enterprise or the relevant elements of murder as a principal.  I agree that, at the stage when the trial Judge discussed the case against each of the appellants, there was an adequate, even thorough, presentation of the prosecution case and defence submissions on the factual issues relating to each appellant.  That included a discussion of the evidence in each case as to the particular appellant’s disputed presence at the scene and his role in the attack on the deceased.  Importantly, those summaries also concentrated on the alleged involvement of the particular accused in an alleged arrangement or understanding, whether by participation in the attack or by inference from other evidence.

27. It is true that in no case did the trial Judge refer to how the evidence might relate to extended joint criminal enterprise or to aiding and abetting.  However, the decision tree in each case related to all possible verdicts applicable to the accused in question, depending on the findings of the jury at each step in the tree.  If I may paraphrase what I understand the Judge was doing, he described all the evidence relevant to that accused, summarised the prosecution and defence cases, and then enunciated the questions the jury should ask themselves in respect of that accused based on that evidence.  That included, if the jury got that far, questions designed to elicit a verdict based on aiding and abetting.

28. The decision tree provided for at least thirteen possible routes to a verdict of murder or manslaughter.  In the circumstances of this case and in the light of the extensive discussion of the evidence led through the main witnesses, the summary of the prosecution case and the summary of the evidence in respect of each individual accused, to expect a further detailed analysis of the evidence relating to each of thirteen or more possibilities in respect of each of six individuals in respect of whom the Judge had provided identical decision trees would, I suggest, have been beyond the reasonable endurance of any jury.  The decision trees themselves provided the questions that were to be answered based on the evidence discussed in respect of each individual.  It was quite clear that whether the jury needed to consider murder or manslaughter by aiding and abetting would depend on the answers to earlier questions in the decision tree.

29. The trial Judge, having identified and discussed all the relevant evidence relating to the particular accused’s alleged participation in the attack and in the arrangement or understanding, the alternative routes to a verdict depended on what findings the jury were prepared to make on that evidence.

30. True it is that the trial Judge did not mention in respect of any appellant any particular facts relating to possible extended joint enterprise.  I respectfully agree with Duggan J that there was nothing on the evidence that could be said, and that reference to extended joint enterprise was probably not necessary.  However, if the suggested order in the decision tree were followed by the jury, they would not have been misled by the questions, and would have soon passed over them.

31. So far as the direction on aiding and abetting is concerned, apart from the reference quoted above in relation to the group which comprises the present appellants, no reference was made in discussing the case relating to each individual to a conviction by aiding and abetting, other than when first discussing the decision tree in the case relating to Jones.  At that stage the Judge took the jury through Section E in order and read question E2, followed by a paraphrase of question E4.  On the trial Judge’s directions, the jury would only get to that point if they were not satisfied that the particular accused was participating in the attack.

32. By posing those questions in Section E of the decision tree subject to that condition, and in the context of the evidence which the trial Judge had just discussed relevant to that appellant, the trial Judge was directly relating the directions on the law to the facts he had just summarised.  I am not persuaded, therefore, that there was any failure to relate the law to the facts in the directions on aiding and abetting.

33. The trial Judge’s approach to aiding and abetting also has consequences for the argument put by the appellant Jones that the Judge erred in directing that he could be convicted on the basis of aiding and abetting the perpetrators.  On the trial Judge’s directions, that could only have arisen if the jury were not satisfied that Jones was an attacker.  It was a finding that was open on the evidence if the jury were satisfied that Jones was present and encouraged or assisted in some other way.

34. There was no disadvantage to Jones in the Judge’s failure to leave aiding and abetting in the case of Matthew Andrews.  The Judge treated them in exactly the same way because the only evidence against Matthew Andrews was that he was there as an attacker and in no other capacity.

35. In my opinion, there was no defect in the summing‑up other than one which was favourable to all the accused who were said to be at the scene.  There was no material failure to relate the directions on law to the facts.

    The complaint of Adam Ugolini

1. The circumstances giving rise to this complaint are set out by Duggan J.  I will not repeat them.  There was a request by counsel for Adam Ugolini to make reference to her cross‑examination of Collaris.  That was not done.  The cross‑examination had been referred to by counsel in her address to the jury.  Early in his summing‑up the Judge had spoken of the importance of counsel’s addresses and of the obligation of the jury to consider carefully what each had said.  He also pointed out that the fact that he did not repeat all of what had been said by all of the counsel did not mean that the arguments they had advanced were not worthy of consideration.

2. When the omission was raised by counsel for Adam Ugolini the Judge asked for a reference to the transcript where the cross‑examination had occurred.  Counsel was not immediately able to locate it.  The Judge asked counsel to send a message to him as to the location of the passage in question.  Shortly after, the Judge retired to consider some redirections.

3. Thereafter, there was no redirection on this topic nor any reference to whether counsel had supplied the Judge with the appropriate transcript reference. The matter was not raised again by counsel for Adam Ugolini.

4. I agree that the answers given by Mr Collaris in cross‑examination to which counsel had referred were of importance in assessing the evidence of Collaris, but in circumstances where it is not even clear whether the Judge was supplied with the appropriate transcript reference, where the matter was not raised again by counsel and where the Judge had reminded the jury of the importance of the address of counsel which had stressed the importance of the passage, I would not be prepared to hold that the omission constituted a misdirection resulting in a mistrial of Adam Ugolini.

   Ground 15

5. This ground relates only to the case against Robert Ugolini and alleges that inadequate directions were given as to the evidence of Tony Clay-Smith.

6. The importance of Mr Clay-Smith’s evidence was the remark he said he heard from the shorter of two men from outside the window of his house late in the evening following the attack.  The man was alleged to have said that he “could see the splits opening on his head”. That was led as an item of circumstantial evidence in support of other direct evidence that Robert Ugolini was at the scene of the attack.  Mr Clay‑Smith’s evidence did not identify the speaker as Robert Ugolini.  He gave a description of the speaker which, coupled with other circumstantial evidence, was capable of suggesting that the speaker was Robert Ugolini and that the speaker was a person who was at the scene.  But Mr Clay‑Smith’s evidence was not evidence of identity on which, alone, the identity of Robert Ugolini as the speaker depended.

7. The relevant issue was whether Robert Ugolini was at the scene.  That depended on the jury’s assessment of a number of items of circumstantial evidence of which this was one.  The Judge had given a circumstantial evidence direction.  Had the case against Robert Ugolini depended on Clay-Smith positively identifying Robert Ugolini as the person who spoke the words, I agree that more needed to be said about the assessment of that evidence and an appropriate warning given.  However, viewed in its context, the issue was whether Robert Ugolini was at the scene.  Other direct and circumstantial evidence to that effect included evidence of Mr Moroney that Robert Ugolini was at the park armed with an aluminium baseball bat and that Robert Ugolini participated in hitting the deceased.  There was also evidence of Rachel Pine that Robert Ugolini returned in company with the other accused to her home later that evening.  She also referred to not seeing Robert Ugolini anywhere at some stage, and it was suggested that that may have been because he was walking across the road in company with Matthew Andrews at the time when Mr Clay‑Smith made his observations of the two men.  There was also the description by Mr Clay‑Smith of the baseball bat that the shorter man was holding and the sound it made, namely an aluminium or metal sound, when it was hit against the chain link fence outside Mr Clay-Smith’s house.  There was evidence that Robert Ugolini had an aluminium baseball bat earlier that evening and that the man who spoke the words heard by Mr Clay‑Smith was holding an apparently metal baseball bat at that time.  There was evidence of a metal baseball bat being found on a search of the Ugolini house.  Of all the accused described by Rachel Pine as being present at her house on that night, Robert Ugolini was the only one who fitted the description given by Mr Clay‑Smith.

8. The conversation overheard by Mr Clay‑Smith, emanating from a person who was the shorter of two men seen and whose height approximated that of Robert Ugolini, was but one strand of circumstantial evidence suggesting that Robert Ugolini was present at the scene.  In my opinion, the trial Judge’s reference to the prosecution case based on Mr Clay-Smith’s evidence and to defence counsel’s criticism of the unreliability of that evidence was adequate in the circumstances.  In the circumstances, no other warning was necessary.

   Ground 23

9. This was a ground raised only by the appellant Jones and was limited to an allegation that the Judge erred in directing the jury that if Jones could have retreated from any attack or threatened attack, then that was not consistent with a genuine belief that defensive force was necessary and reasonable.  The ground had to be considered in the context of the trial Judge’s directions on self‑defence.

10. I agree with Duggan J that the trial Judge’s directions as to the possibility of retreat were in accordance with the decision of the High Court in Zecevic v Director of Public Prosecutions.[20]  However, this ground was argued in the context of a wide ranging criticism by counsel for Jones of the Judge’s directions on self‑defence, all of which directions were, in my view, adequate.  It was in that context that counsel criticised the trial Judge’s references to the evidence of Dr Gilbert in the passages which have been set out by Duggan J.  I have carefully considered each of those passages.  Each one of them represents accurately what Dr Gilbert said in evidence.  The essential criticism is that in none of them was reference made to the concession by Dr Gilbert that some blows which the deceased received could have been received while he was standing up and therefore at a time when, on Jones’ case, the deceased was attacking Jones.

    [20] (1987) 162 CLR 645.

11. However, it is important that each of the passages criticised by counsel for Jones are placed in their correct context, and that all the passages are read against some other detailed directions which the trial Judge gave about Dr Gilbert’s evidence.

12. There is no doubt that Dr Gilbert conceded the possibility that some of the injuries, particular to the hand, the shoulder and even one to the head, could have been inflicted while the deceased was still standing.  Of course, that in turn would allow for the possibility that, at that time, the deceased was attacking or that he was being attacked.  Dr Gilbert agreed that the injury to the deceased’s hand was consistent with a defensive injury.  He expressed the view that any of the blows to the scalp could have rendered the deceased unconscious.  There were at least five of these and possibly more.  He expressed the view that the blows to the skull were probably caused while the deceased was on the ground, lying on his left side.  He also said that at least one blow to the body was likely to have been inflicted while the deceased was lying on his left side.  Besides the blows to the skull, there were four blows identified on other parts of the body, including the blow to the hand.

13. I turn to the three passages complained of.  The first one is at page 58 of the summing‑up:

    So if you accept the evidence of Dr Gilbert and are satisfied that one blow felled Darren Male and the rest of the blows were struck while he was lying on the ground you will consider whether there was any further need for the accused to defend themselves. In short, was there any further need to act in self-defence or in defence of another?

14. That direction occurred in the course of a general discussion about self‑defence.  The emphasis was on the question whether the prosecution had proved beyond reasonable doubt that the accused did not genuinely believe that the striking of the deceased was necessary and reasonable to defend himself or another accused.  As I said, the statement was accurate as far as it went, but it was only intended to be illustrative of the general proposition then being explained by the trial Judge.

15. The second passage appears in the summing‑up at pages 100-101:

    In summary, Mr Braithwaite submits that Darren Male attacked Phillip Jones with a weapon and that Phillip Jones only struck a few blows back in self-defence while Darren Male was standing, suggesting to you that there is a reasonable possibility that Phillip Jones struck no more than three blows. It is a matter for you, ladies and gentlemen, but you will weigh that submission with Dr Gilbert’s evidence that the first blow to the head would have caused Darren Male to fall to the ground and that, while there might have been more than five blows, he cannot positively say that there were more than five blows.

16. At that point the Judge was dealing with a submission of counsel for Jones that the deceased was the attacker.  Among other evidence of which the trial Judge reminded the jury had been the submission of counsel that the evidence of Dr Gilbert was that the injury to the deceased’s hand was consistent with an injury received while he was attacking someone or while he was acting in his own defence.  The Judge had pointed out that counsel asked the jury to conclude from that evidence that the wound was incurred on the deceased when he was attacking someone.  The passage complained of must therefore be read in the context of that direction which occurred almost immediately before.

17. The third passage complained of is at page 257 of the summing‑up:

    Another circumstance to consider is the evidence of Dr Gilbert and whether you are satisfied with his evidence that one blow felled Darren Male and the rest of the blows were struck while he was lying on the ground. You will consider whether it was still necessary for the accused to defend themselves by striking further blows.

18. That direction was given in the course of answering a question from the jury about self‑defence, and the trial Judge explaining the two stage process to be considered.  The Judge repeated that, in considering whether there was a reasonable possibility that the accused genuinely believed that force was reasonable and necessary, the jury would have to have regard to a number of things including other alternatives that were available, the possibility of retreat and whether, if there had been such a genuine belief, circumstances may have changed to a belief that the use of force was no longer reasonable and necessary because the victim had been felled.  It was in that context that the trial Judge referred to “another circumstance to consider …”.

19. The evidence of Dr Gilbert in cross‑examination was that any of the injuries associated with the scalp laceration, being injuries which he had numbered one to five, were likely to knock the deceased out.  There was only one other injury to the head, namely bruising around one ear.  There were four other injuries noted on other parts of the body.  On that evidence, it was clear from Dr Gilbert’s evidence that at least some of the blows to the head and probably to the body must have been inflicted when the deceased was lying on the ground.  The passage must be read in that context.

20. Finally, all three passages must be read in the context of a much more detailed discussion of Dr Gilbert’s evidence which occurred earlier in the summing‑up:

    Dr Gilbert could not be sure how many blows Darren Male received to his skull. There were at least five blows to the head since there are five lacerations. He said that it was not possible to say if there were more than five blows to the head. There were of course four other blows to other parts of Darren Male’s body as well as the injury to his hand, which might have been either a wound incurred in defending himself or in attacking someone else. You will decide how many blows were struck and you will decide how that injury to his hand was incurred.

    In Dr Gilbert’s opinion most of the injuries to Darren Male were inflicted after he had collapsed to the ground. Some could have been inflicted while he was standing. The blows to the skull, he said, were fairly substantial and some very severe. Dr Gilbert did not believe that all of those fractures and lacerations on his skull would have been sustained while Darren Male was standing because, in his opinion, one of those blows would have been enough to cause him to collapse to the ground.

    …

21. As I have said, there were five lacerations to the skull which are consistent with five substantial blows to the skull, blows struck with considerable force, but it was not possible to identify how many blows were in fact struck to the skull.

22. In those circumstances I consider that there was no material misrepresentation in the summing‑up of the evidence of Dr Gilbert.  Likewise, there was no material omission in the summing‑up when the passages complained of are read in their own context and in the context of the summing‑up as a whole.

    Ground 12

23. This ground complains that the complexity of the trial resulted in a miscarriage of justice.  What is relied on is the length and complexity of the summing‑up, the length and complexity of the written directions, the retractions, corrections and amendments to the summing‑up, the retractions, corrections and amendments to the written directions, the difficulty in articulating the law on the numerous bases of liability and linking them to the individual accused and the delay between the addresses of counsel and the summing‑up.

24. A number of these complaints arose and have been dealt with in other grounds of the appeal.  The case was undoubtedly one of some complexity.  Nevertheless, there is an assumption that if a trial is properly managed, juries in normal circumstances are capable of judging the issues involved.  I repeat what Duggan J and I said in R v Gillard and Preston:[21]

    In Carter v The Queen (1997) 19 WAR 8, the Full Court of the Supreme Court of Western Australia, after reviewing many authorities on the topic concluded (at 22):

    “It is plain, from these authorities, that it should ordinarily be assumed that, if there is proper trial management, juries are, in normal circumstances, capable of judging the issues involved even in long and complex cases.  We share that view, more particularly having regard for new pre‑trial procedures and technological advances which have aided in the conduct of long trials.  The question is whether there were any circumstances, in this trial, which prevented the jury from giving proper consideration to the issues before it or which caused there to be a danger of the jury not reaching a safe verdict.”

    We respectfully agree with the assumption made. 

    [21] [2000] SASC 454 at [102]-]103].

25. The complexity of the case related to the number of accused and the number of different possible routes that the jury could take to a verdict in respect of each accused.  There was nothing complex or unusual about the subject matter of the charges or the acts and events deposed to by the witnesses.

26. The length and apparent complexity of the oral summing‑up was greatly assisted by written directions on questions of law and their application to separate decision trees prepared in respect of each accused. That ensured, so far as possible, that, consistent with the many oral directions given from time to time by the trial Judge, separate and discrete consideration was given by the jury to the relevant facts led in evidence in respect of each individual accused.

27. True it is that corrections were made both to the oral summing‑up and to the decision trees in the course of the summing‑up.  However, there was no confusion about the final directions given, and the questions asked by the jury after they retired did not indicate any confusion.

28. There were unfortunate but unavoidable interruptions to the summing‑up.  It commenced on 18 November 2004.  On Friday, 19 November 2004 the appellant Phillip Jones was ill, and so the summing‑up continued on Monday, 22 November.  On Tuesday, 23 November there was an application by a juror to be discharged.  The summing‑up resumed at 12.19 p.m. that day.

29. Although the jury retired with a written summary of directions later on Tuesday, 23 November, they were warned at that time that an amended summary would be produced the following morning and would need further explanation.  The jury were told not to reach a verdict until they had an opportunity to consider the amended version.  The amended version was given and further directions commenced at 11.35 a.m. the following morning (Wednesday, 24 November).  During the days which followed there were some questions from the jury and requests to have passages of the transcript re‑read.  Deliberations continued over the weekend, and the verdicts were delivered at 12.51 p.m. on Monday, 29 November 2004.

30. The length of the deliberation is not surprising, given that the trial and counsel addresses had occupied some 50 days and given also the complexity, in the sense described above, and the fact that the jury was unable to reach a verdict in respect of four of the accused.

31. I do not consider that the appellants have identified any aspect of the trial which prevented the jury from giving proper consideration to the issues before it or which indicate that the jury might not have reached a safe verdict.  I do not consider that there was a miscarriage of justice.

    Conclusion

32. It follows that in my opinion the appeals must be dismissed.

33. ANDERSON J  I have had the advantage of reading in draft the reasons prepared by Duggan and Bleby JJ.

34. I agree with the reasons expressed by Duggan J in dismissing appeal grounds 1 and 2, 3 and 14, 9 and 10, 11, 21 and 22, 15 and 17.

35. I also agree with the reasons expressed by Bleby J for dismissing appeal grounds 4 and 16, 5, 6, 7, 12, 23, 24, 25, 26, 27 and 28.

36. Therefore I would dismiss all grounds of appeal.