Regina v Moran [1999] NSWCCA 92

New South Wales Court of Criminal Appeal CITATION : Regina v Moran [1999] NSWCCA 92 FILE NUMBER(S) : CCA 60497/98 HEARING DATE(S) : 7 April 1999 JUDGMENT DATE : 23 April 1999

PARTIES : John Thomas Moran (Appellant) Regina (Respondent) JUDGMENT OF : Sheller JA at 1; Studdert J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0012 LOWER COURT JUDICIAL OFFICER : Pain DCJ

COUNSEL : G Nicholson QC (Appellant) Mr P.G. Ingram (Respondent) SOLICITORS : John Byrne & Associates (Appellant) S.E. O'Connor (Respondent) CATCHWORDS : Erroneous rejection of evidence excluding applicant as assailant DECISION : Appeal allowed, convictions of maliciously wounding and assault quashed.; New trial to be held on both charges

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1 IN THE COURT OF CRIMINAL APPEAL 60497/98

SHELLER JA STUDDERT J SMART AJ Friday 23 April 1999

REGINA v John Thomas MORAN JUDGMENT

1 SHELLER JA : I agree with Smart AJ. 2 STUDDERT J : I agree with Smart AJ 3 SMART AJ : John Thomas Moran appeals against his conviction by a jury of maliciously wounding Gary Wayne McNamara with intent to do grievous bodily harm and of assaulting Roy Hale. 4 On 21 August 1995, just after midnight Mr McNamara arrived at Pyrmont Bridge Hotel with two friends having previously consumed some alcohol. There he drank about eight to ten middies of VB during the early hours of the morning and by 4.00 am was "a bit drunk." His friend, Corey Franks gave Mr McNamara money to buy drinks for both of them and went to the toilet. Mr McNamara approached the bar which was congested with people. While there he felt a sharp pain in the left side of his midriff area and turned around. He looked down and saw blood everywhere. Mr McNamara went to the toilet to tell Franks who yelled out for an ambulance to be called. As he and Mr McNamara started walking out of the hotel, Mr McNamara collapsed. He later woke up in the back of an ambulance. In his evidence Mr McNamara stated that he did not know what or who caused the pains he experienced as "it just happened so quick … I didn't see." Nor did he observe his attacker as he left the bar and headed to the toilet. He was unable to identify any of the photographs of males shown to him by police on 24 August 1995. 5 Dr Manu Mathur examined Mr McNamara at the Royal Prince Alfred Hospital on 21 August 1995. There were three stab wounds to the left side of the abdomen with "obvious signs of internal bleeding…and two stab wounds to the left chest posteriorly with possible underlying lung injury." An operation was performed for stab wounds to the abdomen and chest consisting of: "laparotomy, exploration of gastro-colic omentum, oversew of bleeding gastro-epiploic artery and insertion of left chest intercostal drainage catheter for left haemothorax." Mr McNamara remained in hospital until his discharge on 3 September 1995. 6 The Crown led no evidence from Mr McNamara as to the identity of his attacker. He had previously asserted in an aborted trial that the accused was not the person who attacked him. The Crown did not lead this evidence in the subsequent trial. To establish that the appellant was the person who attacked Mr McNamara the Crown relied on the evidence of two men who worked at the hotel, namely, Mr Roy Hale, a security guard employed by a security company and Mr M.O. Smith, a bar attendant. They identified the appellant as the assailant. 7 There was no dispute at the trial that the appellant was at the hotel in the early hours of 21 August 1995 drinking with some friends and that he was in the hotel when Mr McNamara was wounded. Nor was it in issue that Mr McNamara was wounded, that this was done intentionally by whoever did it and with the intention of doing Mr McNamara really serious bodily injury. The issue in the trial was whether it was the appellant who inflicted the injury. 8 Mr Hale gave evidence that the assailant also wounded him by cutting him on the right forearm. It was not in issue that Hale was assaulted. The issue was whether the appellant was responsible. 9 In his evidence at the aborted trial Mr McNamara stated: (a) "I was standing at the bar. I just felt a sort of pain in my back. I turned around and I just seen this - I looked up and I seen this bloke and … just felt a couple more pains in my stomach." (b) that he remembered having his assailant by the hair and trying to push him away. There were a lot of people in the hotel. People came from everywhere and there were hands everywhere. It seemed as though about six or seven people were trying to break-up the attack. He did not see whether his assailant had any implement in either hand. He did not recall facing his assailant at any time.