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 11 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. (c) that he was not able to give a description of his assailant and that he keeps seeing "something white,….white hair". Mr McNamara stated "I know the bloke sort of had sandy long hair sort of." As he tried to recall the incident he could not see the assailant's face. He thought that his assailant was Australian and pretty young, early to late twenties. He was pretty tall, taller than Mr McNamara who is 6 feet tall. He could not estimate the assailant's weight or recall his clothes. He could not identify the assailant from the photographs which the police showed him. (d) that he did not know the appellant who was sitting behind his counsel, that he had never seen the appellant before and that the appellant was not the man who attacked him. There was some sort of struggle between people in his vicinity. 10. The appellant was an older man. He did not have blond or sandy hair and he does not have a plentiful supply of hair. 11. In his evidence at the subsequent trial Mr McNamara said that he would "sort of vaguely see sandy hair or something. He had blood all over his hands and there was sort of blondy like hair stuck to it, like there was hair all over me. So I don't know where that came from, it wasn't mine." At the trial he said he did not recall grabbing anyone by the hair but he did recall having hair all over him. 12. Mr McNamara did not dispute the evidence he gave at the aborted trial. He recalled some but not all of it. At the trial he said he could not remember saying earlier that he had just seen one bloke because there were so many around. He might have said there was a couple of people but he did not say just one bloke. He said that the answer earlier quoted as to seeing this bloke and the pains he felt reflected the situation as he now remembered it. He stated that when he looked up he saw somebody's face. This last statement suns counter to the general tenor of Mr McNamara's evidence. It is not clear exactly what he meant. 13. The appellant's counsel, after confirming with Mr McNamara that he saw the appellant sitting in court, requested the appellant to stand up. The Crown Prosecutor immediately objected to "any attempt to make an identification." The transcript records that the judge disallowed the question. That must refer to a question along the lines "Is the accused sitting in Court, the man who attacked you?" The judge told counsel "I don't propose to allow the in court demonstration you sought to undertake". The judge did however permit the appellant's counsel to ask Mr McNamara whether he had previously given evidence in the terms as set out in the transcript of the aborted trial. Various passages from that transcript were put to Mr McNamara. He agreed that he had said previously that he did not know the appellant sitting in court behind his counsel, that he had never seen the appellant before and that the appellant was not the man who had attacked him. Mr McNamara stated that these were true answers. 14. The fact that Mr McNamara confirmed at the trial that the answers he had given in the aborted trial were true was important. It meant that there was direct evidence before the jury in the trial that the appellant was not the assailant. 15. The Crown conceded in this court that objection had been taken incorrectly by the Crown to the questions which the appellant's counsel wished to ask and that the judge had incorrectly upheld the objection. This was not a case of an in court identification but an exclusion. Error was established. The question was whether there was a substantial miscarriage of justice. The Crown accepted that the jury did not have the benefit of hearing Mr McNamara state that he had never seen the appellant previously and that the appellant was not the assailant and of having counsel highlight the differences between the appellant and those characteristics of the assailant which Mr McNamara recalled. However the Crown contended that as the appellant had elicited that Mr McNamara had given answers to this effect at the aborted trial and confirmed in the subsequent trial that such answers were true, the jury had before it that Mr McNamara believed and asserted that the appellant was not his assailant. The Crown contended that the trial and the summing-up proceeded on the basis that this was Mr McNamara's view and that the significance of these points was brought home to the jury. The importance of that material could not have been missed. The Crown contended that all the accused lost was, in effect, the dramatic emphasis of the point. 16. For the jury to have heard and seen the in Court demonstration and Mr McNamara assert that he had never seen the appellant previously and that the appellant was not the assailant could have been telling. Much may have depended on the degree of conviction and certainty expressed by Mr McNamara. Counsel for the appellant would no doubt have endeavoured to overcome the problem of Mr McNamara asserting he had not seen and could not recall the assailant's face and stating that he had not seen who had attacked him by elaborating on the physical differences between the appellant and the man as partially described by Mr McNamara. This would also have helped to neutralise the impression emerging from the evidence that Mr McNamara did not have a clear picture of who attacked him or render that fact less important. 17. I would have expected the Crown to have told the jury in opening of Mr McNamara's belief that the accused was not his attacker and that the Crown was relying on other evidence to identify the assailant as McNamara was mistaken and did not see sufficient of the assailant's features. I would also have expected the Crown to lead evidence from Mr McNamara that he did not believe (or think) that the appellant was his assailant. If these standards are too exacting, at the very least objection should not have been taken by the Crown to the questions in cross-examination excluding the appellant as the assailant. 18. In his summing-up the judge reminded the jury that the Crown asked them not to accept the evidence of Mr McNamara that the appellant was not the assailant because Mr McNamara had not seen the assailant's face. This underlines the importance of not curtailing the appellant's cross-examination of Mr McNamara on this point. 19. When evidence is given both what is said and the manner of giving the evidence is important. By the Crown taking the objection and it being upheld the appellant, on the critical issue, was deprived of the opportunity of putting one of his strongest points, if not the strongest, in a cogent fashion. Normally, this alone would be sufficient to compel a new trial. Before expressing a final view I should note the other evidence of identification 20. Mr Hale said that he saw the assailant go towards Mr McNamara and throw about five punches with his right hand. Some hit Mr McNamara on the chest and some on the stomach. Mr Hale said that he moved in to stop the attack and grabbed the assailant by the right hand. Mr Hale did not notice at that point if the assailant had anything in his hand. After the men were separated Mr Hale saw the blood on Mr McNamara. Mr Hale stated that he grabbed the assailant and pulled him back towards him and against the wall. He saw the assailant's face for about one to two minutes. He asked the barman to call an ambulance. Mr Hale tried to help Mr McNamara. Mr Hale had seen the assailant walk out the door. 21. Mr Hale said that when he held the assailant against the wall he saw an object like a key hanging from the appellant's right hand. He said that the object was black in colour and about three inches long. He thought it was a little knife that you flick out, like a pocket knife. Mr Hale said that he had this knife under observation for about two to three minutes. 22. It was the combination of the punching to the relevant areas, the blood and the little knife in the right hand that led Mr Hale to say that the assailant did the stabbing, although he did not actually see the assailant stab the victim. On the facts related by Mr Hale there was a strong inference that the appellant was the assailant. Mr Hale said that he had seen the man who did the stabbing about 5 to 7 times on different nights in the hotel in about the fortnight prior to the night of the attack. 23. Mr Hale said that he received an injury on the right forearm from the assailant as he held him back from the stabbing. Mr Hale identified the appellant as the assailant. He said that he knew him by name. He was called "Tex." Mr Hale identified the photo of the appellant from a group shown to him by police on 23 August 1995, asserting that he was the assailant. 24. Mr Hale was cross-examined at length. An attempt was made to demonstrate that his line of vision was seriously impaired and that he did not see exactly what happened. Mr Hale insisted that he grabbed the wrists of the older man, the assailant, from behind. It was after he had taken hold of the older man that he realised that he had a knife. Some discrepancies were exposed in the cross-examination but they were not major or fatal. Mr Hale appeared to experience some difficulties in understanding fully what he was being asked and in expressing himself. 25. Mr M.O. Smith was serving behind the bar. He thought the incident took place about 3.30 am. He served a young man (McNamara) with two drinks. As he turned round the older man(the appellant) approached Mr McNamara and an argument developed in which the appellant addressed unsavoury abuse to Mr McNamara. A fight erupted with punches being thrown. The two men were pulled apart. Mr Smith said he grabbed the younger male (McNamara) and Mr Hale grabbed the appellant in a bear hug from behind, grabbing his arms so he could not throw any more punches, pulled him away and walked him towards the doors. Mr Smith let go of Mr McNamara who walked away. As Mr McNamara turned around Mr Smith noticed tears in his shirt and what looked to be blood on the front of it. On 26 August 1995 the police showed him a group of photos and he identified one of the appellant as the older man. He had only seen that man in the bar that night. Mr Smith did not and could not see whether any weapon was used. He did not see a knife in the hands of the appellant. Mr Smith said that the appellant punched Mr McNamara in the chest and stomach. 26. In cross-examination Mr Smith agreed that Mr McNamara threw the first punch. He did not see the appellant up against the wall. Mr Smith said that Mr Hale walked the appellant towards the double doors of the bar at the corner of Murray and Pyrmont Streets. He did not see the appellant pass through those doors. His attention was directed to Mr McNamara. Mr Smith said that the hair of the older man was roughly the same length as that of the accused in court but a bit lighter. It was not white or blond on the night. Mr Smith did not see any males in the bar with long hair but there were some females with such hair. It is unnecessary to refer to the evidence further. There were some differences in the evidence of Messrs Hale and Smith but they were not of consequence. 27. The evidence of Messrs Hale and Smith would amply justify a jury convicting the appellant. They got a much better view of the appellant than Mr McNamara but the appellant was entitled to put his case fully and cogently to the jury. It is reasonably possible that if the appellant had been permitted to cross-examine as desired the jury may have been swayed. The judge's ruling weakened the accused's chance of an acquittal. There should be a new trial. It is not a case where it could be said that on the identification evidence led at the trial the verdict was unsafe and unsatisfactory Nor could that be said if, additionally, the rejected cross-examination had taken place. It is unnecessary to deal with the other grounds of appeal. 28. This was a serious attack, the wounding was significant and there was an intention to inflict grievous bodily harm. It would be wrong to enter a verdict of acquittal even allowing for the appellant being in custody from 23 July 1998 to 31 December 1998. 29. The assault charge was closely related to the more serious charge arising out of the same incident. If the jury had a reasonable doubt about the identity of the assailant on the more serious charge it may, but not necessarily, have the same doubt on the assault charge. The order for a new trial should extend to that count. I have not overlooked that it is not so serious. The whole incident should be before a new jury, 30. I propose the following orders: (a) Appeal allowed, convictions of maliciously wounding and assault quashed. (b) A new trial be held on both charges. ********** 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.