The applicant complains trial counsel failed to cross-examine in respect to the presence or absence of wood fibres on the bandage and the presence or absence of fibres from the bandage on the log of wood, said to be the weapon handled by the applicant. There is nothing to suggest any forensic advantage would have been gained by cross-examining the forensic scientist as to the existence of fibres on the wood or vice versa. It is purely speculative to suggest any evidence in response may have been favourable to the applicant. In any event, trial counsel had made a forensic decision to deal with the glass fragment evidence as discussed above. Having made that decision, cross-examination as to the presence or absence of bandage fibres on the log of wood was of no consequence. Again, I am not persuaded that such a decision is without rational explanation.
The applicant further complains that counsel "failed to advance any reasonable proposition upon which a jury could have acquitted the appellant, in circumstances where one was available, had cross examination been adequate." This appears to be a "catch all" ground of appeal which is answered by the commentary above. In my view, none of the asserted particulars of incompetence have been substantiated.
[2]
The case which the State presented against the applicant was a strong one. I cannot identify any conduct of counsel that created a material irregularity in the trial that was capable of affecting the outcome. It is not a matter of engaging in a process whereby every decision made by trial counsel is criticised with the benefit of hindsight. Indeed the ultimate question for the Court is whether there has been a miscarriage of justice. In my view, the applicant has failed to establish the existence of such a miscarriage and the application should be dismissed.
Parties
Applicant/Plaintiff:
Braslin
Respondent/Defendant:
Tasmania [2022] TASCCA 8
Cases Cited (4)
Braslin v Tasmania [2022] TASCCA 8 (18 August 2022)
The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel involves an objective inquiry (Nudd v The Queen[2006] HCA 9, 80 ALJR 614 per Gummow and Hayne JJ at [27]). The inquiry must be directed to whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code. It is for the applicant to establish that the course taken by counsel was not the result of an informed and deliberate decision. The question is whether the course taken by counsel was capable of rational justification or explanation (TKWJ v The Queen[2002] HCA 46, 212 CLR 124).
The principles relevant to an appeal such as the present were recently summarised by Porter AJ in JAGD v Tasmania[2021] TASCCA 16 at [63] and [64]:
A forensic scientist, Ms Fulton, gave evidence of receiving two glass samples from the crime scene, described on the respective labels as "door window bottom" and "door window top". She also gave evidence of examining a piece of wood from the crime scene that appeared to have possible glass embedded in one of the ends. She gave evidence of examining a bandage, which other evidence established the applicant had been wearing at the time of his arrest, and which had been collected from him, and finding two microscopic fragments of glass within the bandage. Ms Fulton gave evidence that she conducted a comparison of the samples taken from the scene, including by looking at the refractive index, and other properties of the glass. Her evidence was that if two samples did not share the same refractive index they could not have originated from the same source, but if two glass samples shared the same properties, that is colour of glass, the refractive index and the same elemental composition, then they are described as indistinguishable and may share a common origin.
Specific to the grounds of appeal, Ms Fulton gave evidence that the two microscopic pieces of glass recovered from the bandage collected from the applicant, shared the same refractive index as samples taken from the broken door windows at the crime scene. One of the samples taken from the bandage was large enough for its chemical composition to be measured. The chemical composition was the same as the glass taken from the broken door windows at the crime scene. Ms Fulton opined that the microscopic fragments found in the bandage taken from the appellant were "indistinguishable" from the door window glass and "may share a common origin".
Ms Fulton gave evidence relevant to the question of how glass may have found its way onto the bandage collected from the applicant. Her evidence was that when a pane of glass is broken by a blunt force object, microscopic pieces of glass can travel backwards up to one metre towards the person who shattered the glass. She said this phenomenon was known as "back shatter". She opined that if a person broke a window and had a bandage on their hand, microscopic fragments could travel backwards and embed themselves on the bandage. She described this occurrence as "definitely one possibility". She also gave evidence that fragments could be transferred onto the bandage from another source, such as from the person who broke the glass or "through some other means". She said that studies have shown that if present at a glass breaking event, glass fragments can attach to clothing and be shed for approximately an eight hour period. She said the length of time the glass may remain on any particular piece of clothing was variable and dependent upon the nature and material of the clothing.
The State relied upon the evidence of the glass fragments found in the bandage being "indistinguishable" from the door window glass, as being consistent with the applicant being present at the scene of the attack, and inconsistent with the applicant's claim that he was never there. Counsel for the State suggested the glass fragment evidence was consistent either with the applicant being responsible for smashing the windows, or being within approximately one metre of whomever did. At trial, the applicant's counsel attacked the forensic evidence by endeavouring to establish that glass samples can have the same properties without necessarily originating from the same piece of glass, and that the analysis conducted by Ms Fulton was impaired because the size of the glass samples recovered from the bandage were so small as to limit the effectiveness of some of the comparative testing that could be undertaken. In his closing address, trial counsel submitted to the jury that the database from which the comparative samples were taken was a nationwide database and there was no evidence as to how common or otherwise the particular type of glass may be in Tasmania. He argued that a national glass database had the potential to "distort the appearance of the commonality of the glass" within Tasmania. He argued the jury should not be satisfied that the glass was an "extremely unusual refractive index" and that it may well have come from a glass source independent of the crime scene. The applicant's trial counsel argued the process of analysing the glass samples had limitations and the jury ought to be careful about placing reliance upon the evidence of Ms Fulton in light of such limitations.
The applicant complains that the approach taken by trial counsel as to the glass fragment evidence was ill conceived and did not, in any meaningful way, address the evidence. The applicant contends, given there was no other forensic evidence that connected him to the crime scene, the failure of trial counsel to adequately and sensibly address this evidence led to the loss of a significant possibility of acquittal. The applicant submits trial counsel's attempt to argue it was, in effect, simply a coincidence that the glass found on the bandage worn by the applicant was the same chemical composition and refractive index as the glass which came from the broken windows at the crime scene was "fanciful and incapable of rational justification especially when considered against the ignored possibility of transfer".
It may well be true that the hypothesis advanced by trial counsel lacked forensic appeal, but the alternate hypothesis of the glass being transferred onto the bandage via another person was also forensically unpalatable. The evidence of the glass fragments found in the bandage being indistinguishable from the glass which came from the broken windows at the crime scene was strong evidence in the State's case. Trial counsel was in an unenviable position. It was difficult to advance a rational and reasonable hypothesis which explained it. The applicant argues that trial counsel should have explored the possibility that the glass fragments came to be on the bandage worn by the applicant as a consequence of it being transferred there from another source.
The argument advanced is to the following effect: glass fragments found their way onto the complainant or one of his sons at the time of the attack, some of those glass fragments were then shed and transferred to a police officer who attended the scene and interacted with the complainant or one of the sons, that police officer then shed those glass fragments whilst in the company of the applicant and transferred those glass fragments to the bandage being worn by the applicant.
Such a "transfer theory" was, in my view, largely unsupported by the evidence. The evidence of the complainant was that he was inside the front door when his attackers pushed their way inside and struck him with the wood. He said he fell to the floor when he was struck. He said he heard glass breaking after his attackers had left via the front door. It is unclear how far the complainant was away from the front door at the time the windows were broken. It is not apparent on the evidence that the complainant had any glass shatter upon him, but it is an arguable possibility. The evidence of Guy Magrath was that he was approximately 2.5 metres away from the front door when the glass broke. It is unlikely he had any glass shatter upon him. The other son, Jake Williams, was further back from the door and most likely in another room. The first difficulty then is the evidence does not readily establish that the complainant or either of his sons were likely to have had glass upon them. The second difficulty is that on the evidence it was an exceptionally remote possibility that either of the police officers who came into contact with the applicant would have had glass upon them such that they might transfer it onto the bandage worn by the applicant.
Following the attack, the complainant was taken to the hospital. Constable Jago attended the hospital. Constable Jago spoke to the complainant. The evidence did not suggest there was any physical contact between Constable Jago and the complainant. Constable Jago subsequently executed a search warrant at the applicant's house. Part of a recording of the search was tendered on the trial. There was no evidence to suggest there was physical contact between Constable Jago and the applicant.
Detective Brightman spoke with the complainant's son, Guy Magrath. There was no evidence to suggest there was physical contact between Detective Brightman and Guy Magrath. Detective Brightman then attended a briefing at the police station before attending at the applicant's home and participating in a search. He was engaged in the search for approximately 30-45 minutes. Detective Brightman then arrested the applicant and took him to the police station. There was physical contact between Detective Brightman and the applicant at this point, but there was not an evidentiary basis to establish that Detective Brightman was likely to have glass particles upon him at the time he dealt with the applicant.
There was no evidence to suggest Constable Fawkner came into contact with any fragments of glass nor had physical contact with the applicant.
It would have been an uphill battle to realistically suggest to the jury that the glass particles on the applicant's bandage had been transferred there from another person who had been at the crime scene. To advance such a proposition would have potentially been seen by the jury as implausible and fanciful and suggestive of a desperate attempt on behalf of the applicant to explain evidence that was adverse to him. The implausibility of the argument may have focussed unwarranted attention on the glass fragment evidence which would not have been in the applicant's interests. Quite frankly, trial counsel was faced with two equally undesirable alternatives. I can think of no good reason why trial counsel should have advanced the transfer theory hypothesis in preference to the critique of the glass fragment evidence that was advanced. As was noted by Gleeson CJ in Ali v The Queen[2005] HCA 8, 79 ALJR 662 [6]: