Mann v Tasmania [2008] TASSC 34

Criminal Code 1924 (Tas), ss402(1)(2), 409(1)(c).

Howson v R [2007] WASCA 83; (2007) 170 A Crim R 401; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, referred to.

Judgment Number: [2008] TASSC 34

1 The appellant, Nathan William Mann, together with Christopher Fitzpatrick, Jason Gordon, Jason Dare and Damien Matthews were tried on an indictment dated 26 July 2007 ("the final indictment") containing a total of 57 charges in relation to 20 different incidents. The charges faced by the appellant related to four of the incidents. He was acquitted of all charges in relation to three of those incidents, but convicted on charges of burglary, stealing and unlawfully injuring property in respect of one incident, a break-in at the Fiveways Supermarket, Kings Meadows, Launceston. He was solely charged with these crimes in the final indictment. His appeal against these convictions is on the grounds that:

"1 Evidence previously unavailable has come to light which if accepted would exonerate the accused.

a) That Christopher Leigh Fitzpatrick, a co-accused who has already been dealt with and convicted, has come forward and indicated he would give evidence on Mr Mann's behalf that Mr Mann was not present at the commission of the crime.

c) Had this evidence been available at trial it would have been contrary to the evidence given by Mr Coombes.

d) Had this evidence been available at trial it could have led a properly instructed jury to acquit.

e) The unavailability of Mr Fitzpatrick's evidence at trial has resulted in a miscarriage of justice."

2 For present purposes the relevant events and their chronology are as follows:

• On Tuesday 7 March 2006, the appellant, Christopher Fitzpatrick, David Coombes and Bradley Matthews travelled from Hobart to Launceston in a Commodore vehicle owned by Mr Matthews' girlfriend.

• Over the night of 7/8 March 2006:

- the Fiveways Supermarket at Kings Meadows, Launceston, was burgled and cigarettes valued at $20,000 and cash of $486 were stolen; and

- a red Holden Torana vehicle was stolen from outside 16 Carr Street, Kings Meadows, Launceston, driven to Hobart by Mr Fitzpatrick and ultimately parked by him in the back of the residence of one of his acquaintances.

• David Coombes' residence at Clarendon Vale was searched by police at 7.16am on 9 March 2006 and three boxes of cigarettes were located that Mr Coombes acknowledged had been stolen in the Fiveways break-in. When interviewed by police later that day, Mr Coombes said he had performed the break-in and described how he had done so in considerable detail. He said that he and three others had been involved in the burglary, but refused to give their names. He said he had driven the group from Hobart to Launceston on 7 March 2006 in a silver Commodore sedan that belonged to a friend; their intention was to carry out a burglary; when checking a potential target in the vicinity of Georgetown Road, Launceston, the group were spoken to by police, who took their names and addresses; and as a consequence of being spoken to by police they chose a target in a different area of Launceston, the Fiveways Supermarket. As to the break-in, he said he and one other member of the group entered the supermarket and whilst they were doing so, one of the other members of the group stole a red Torana sedan in which the stolen items were transported back to Hobart.

• On 9 March 2006, police located the stolen Torana where it had been parked by Mr Fitzpatrick. He had removed its number plates. Prior to this, the vehicle had been seen at Mr Fitzpatrick's residence. That morning the police searched Mr Fitzpatrick's residence and located incriminating items that included the Torana's number plates and items that might have been used by a burglar. When interviewed by police that afternoon, Mr Fitzpatrick said that he was the sole perpetrator of the Fiveways break-in and the theft of the Torana and described how the break-in had been effected. He said that: at 9.30pm on the night of 7 March he and three mates had driven to Launceston in a Commodore vehicle to look for a tattooist that he knew; in Launceston the group were spoken to by police as they walked in Main Road, Invermay and he was asked for his name; he left his mates as they were not interested in doing a burglary; he carried out the Fiveways break-in using items that had been taken from the Commodore; and he stole the red Torana, drove it back to Hobart together with the property taken in the break-in, parked the Torana in the back yard of the residence of an acquaintance and removed its number plates.

• When the appellant was interviewed by police about the Fiveways break-in, he told them that: he had travelled to Launceston on about 8 March 2006 with Mr Coombes, Mr Matthews and Mr Fitzpatrick; they went to Launceston to get tattoos; when they were unable to find the tattoo shop, he and Mr Matthews returned to Hobart in the car they had travelled up in and that this was before the occurrence of the Fiveways break-in.

• On 3 and 4 May 2006, Mr Coombes made a statement to police in relation to most, if not all, of the incidents that are the subject of the charges in the indictment. In the course of the statement, he said that a few weeks previously he had been assaulted at his home by Jason Gordon and Bradley Matthews because they believed that he, Mr Coombes, had made a statement to police incriminating Mr Gordon in an incident. Apparently Mr Coombes had not done so but, in consequence of the undeserved assault, he did so. In the course of his statement Mr Coombes named those involved in the incidents to which he referred, and as to the Fiveways break-in he:

- identified the appellant, Christopher Fitzpatrick and Bradley Matthews as the others involved;

- said that the appellant was the person who broke into the supermarket with him; and

- said that Christopher Fitzpatrick and Bradley Matthews stole the red Torana.

• On 6 June 2006, in the Court of Petty Sessions, Mr Coombes pleaded guilty to a wide range of crimes including charges in relation to the Fiveways break-in. He received a wholly suspended sentence of three years' imprisonment.

• On 15 December 2006, in the Court of Petty Sessions, Mr Fitzpatrick pleaded guilty to charges that included charges of burglary and stealing in relation to the Fiveways break-in and a charge of stealing the red Torana referable to that incident. He was convicted and sentenced to 16 months' imprisonment cumulative upon the balance of a sentence he was serving.

• On 11 January 2007, an indictment was filed against the defendants containing 55 counts referable to 19 of the 20 incidents covered by the final indictment. The incident not covered related to Carpet Choice. In that indictment, the charges in relation to the Fiveways break-in were:

"47 STATEMENT OF CRIME

BURGLARY - Contrary to Section 244 of the Criminal Code.

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others entered as a trespasser the Fiveways Supermarket with intent to commit the crime of stealing therein AND CHRISTOPHER LEE FITZPATRICK INSTIGATED and/or ABETTED the commission of that crime by: -

(a) encouraging Nathan William Mann to travel to Launceston to commit a burglary, including stating words to the effect that 'there are easy burglaries up there';

(b) driving with Nathan William Mann and others to Launceston in a motor vehicle;

(c) accompanying Nathan William Mann and others to Launceston with tools in the vehicle suitable for use in breaking into a building;

(d) in Launceston pointing out to Nathan William Mann and others the said Fiveways Supermarket as a place previously burgled; and/or

(e) waiting nearby in the said motor vehicle whilst Nathan William Mann and one David Coombes so burgled the said Fiveways Supermarket.

Forty Eighth Count

STEALING - Contrary to Section 234 of the Criminal Code.

PARTICULARS

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others stole a large quantity of cigarettes, approximately $486, 2 garbage bins and a Hessian bag the property of Barry Richardson AND CHRISTOPHER LEE FITZPATRICK INSTIGATED and/or ABETTED the commission of that crime by: -

(a) encouraging Nathan William Mann to travel to Launceston to commit a burglary, including stating words to the effect that 'there are easy burglaries up there';

(b) driving with Nathan William Mann and others to Launceston in a motor vehicle;

(c) accompanying Nathan William Mann and others to Launceston with tools in the vehicle suitable for use in breaking into a building;

(d) in Launceston pointing out to Nathan William Mann and others the said Fiveways Supermarket as a place previously burgled; and/or

(e) waiting nearby in the said motor vehicle whilst Nathan William Mann and one David Coombes stole the above items.

UNLAWFULLY INJURING PROPERTY - Contrary to Section 273 of the Criminal Code.

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others unlawfully injured a section of roofing, some vinyl, 2 cigarette cabinets, a security system and telephone lines the property of Barry Richardson AND CHRISTOPHER LEE FITZPATRICK INSTIGATED and/or ABETTED the commission of that crime by: -

(a) encouraging Nathan William Mann to travel to Launceston to commit a burglary, including stating words to the effect that 'there are easy burglaries up there';

(b) driving with Nathan William Mann and others to Launceston in a motor vehicle;

(c) accompanying Nathan William Mann and others to Launceston with tools in the vehicle suitable for use in breaking into a building;

(d) in Launceston pointing out to Nathan William Mann and others the said Fiveways Supermarket as a place previously burgled; and/or

(e) waiting nearby in the said motor vehicle whilst Nathan William Mann and one David Coombes so unlawfully injured the said Fiveways Supermarket."

As Mr Fitzpatrick had on 15 December 2006 been sentenced on his plea of guilty to charges of burglary and stealing in relation to the Fiveways break-in, it was an error to indict him in the charges contained in counts 47, 48 and 49.

• On 16 February 2007, a fresh indictment was filed against the defendants containing 57 counts referable to the 20 incidents; it included two charges referable to the Carpet Choice incident In that indictment, the counts that related to the Fiveways break-in were counts 49, 50 and 51. They were in the same terms as counts 47, 48 and 49 of the first indictment, so the mistake of charging Mr Fitzpatrick on these counts was repeated.

• On 25 May 2007 Mr Coombes was cross-examined by counsel for the defendants at a committal hearing. Very little of the cross-examination related to the particular incidents. The purpose of the cross-examination seems to have been to lay the groundwork for a general attack on Mr Coombes' credit at trial. Mr B McTaggart, who was counsel for Mr Fitzpatrick, asked Mr Coombes who was involved in each of the incidents that were the subject of the indictment. As to the Fiveways break-in, Mr Coombes said that he, the appellant, Mr Fitzpatrick and Bradley Matthews were involved. Ms K Baumeler, who was counsel for the appellant, Mr Gordon and Mr Dare, did not ask any questions in relation to any of the incidents in the course of her cross-examination of Mr Coombes.

• On 26 July 2007, a further fresh indictment containing 57 counts was filed against the defendants referable to the incidents. This is the final indictment. The difference between it and the previous two indictments is that it rectified the error of including Mr Fitzpatrick in the charges referable to the Fiveways break-in. He is omitted from those charges. They are:

"49 STATEMENT OF CRIME

Forth Ninth Count

BURGLARY - Contrary to Section 244 of the Criminal Code.

PARTICULARS

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others entered as a trespasser the Fiveways Supermarket with intent to commit the crime of stealing therein.

Fiftieth Count

STEALING - Contrary to Section 234 of the Criminal Code.

PARTICULARS

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others stole a large quantity of cigarettes, approximately $450, 2 garbage bins and a Hessian bag the property of Barry Richardson.

Fifty First Count

UNLAWFULLY INJURING PROPERTY - Contrary to Section 273 of the Criminal Code.

PARTICULARS

NATHAN WILLIAM MANN at Launceston in Tasmania on or about the 8th day of March 2006 together with one or more others unlawfully injured a section of roofing, some vinyl, 2 cigarette cabinets, a security system and telephone lines the property of Barry Richardson."

Besides the inclusion of two charges referable to the Carpet Choice incident in the second and final indictments, the only substantive difference between the three indictments was the removal of Mr Fitzpatrick from the charges referable to the Fiveways break-in in the final indictment.

• Prior to the trial, Mr Fitzpatrick told the appellant that he was willing to give evidence to the effect that he had committed the Fiveways break-in on his own. Thereafter Mr Fitzpatrick discussed giving this evidence on the appellant's behalf with Mr Fitzpatrick's counsel, Mr McTaggart, who advised him not to do so as the evidence could encourage the jury to infer that Mr Fitzpatrick was involved in other incidents in respect of which he faced charges.

3 In an affidavit sworn by Mr Fitzpatrick for the purposes of this appeal, he says as to the Fiveways break-in that he, Bradley Matthews, David Coombes and the appellant together travelled to Launceston to find a tattooist; they argued when the tattooist could not be found; he and Mr Coombes left the vehicle, and the appellant and Bradley Matthews drove away; he and Mr Coombes parted; he stole a car; he alone committed the Fiveways break-in; and he alone drove back to Hobart in the stolen car, together with the proceeds of the break-in. To further his appeal, the appellant seeks to have this Court receive Mr Fitzpatrick's affidavit. When considering an appeal against a conviction, the Court "may, if it thinks it necessary or expedient in the interest of justice" receive further evidence, the Criminal Code, s409(1)(c). This discretion is exercised against the background of the Criminal Code, s402(1), which is to the effect that an appeal shall be allowed if the Court is of the opinion "that on any ground whatsoever there was a miscarriage of justice". Similar provisions govern appellate courts in each of the Australian States and the Northern Territory. The applicable law is well established. Whilst the ultimate question for determination is whether it is necessary to admit the further evidence in order to prevent a miscarriage of justice, a preliminary consideration that bears on that ultimate question is whether the further evidence is "new" or "fresh", the latter being evidence that was not available to the appellant at the time of trial, actually, or constructively. Evidence is constructively available if it could have been discovered, or available at trial, by the exercise of reasonable diligence. When the further evidence is not fresh but merely new, an appellant will only succeed if the evidence either shows the appellant to be innocent, or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand. The law in this regard is canvassed in Howson v R [2007] WASCA 83; (2007) 170 A Crim R 401 by Roberts-Smith JA, agreed with by Buss JA and Millar AJA, in the following passage at pars42 - 44:

"The distinction [between 'fresh' and 'new' evidence] remains of importance, notwithstanding the statutory capacity of this Court to admit further evidence on an appeal (s 40(1)(a), (b) and (e) of Criminal Appeals Act 2004 (WA)). The position was explained by Pullin JA in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, at [152] - [153]:

'The distinction is important because "new" evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, "constructively" (Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517) known to be available at the time of the original trial. An accused will "constructively" know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, "great latitude" (Ratten at 517) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between "fresh" and "new" evidence is not as significant as it once was. [Nolan v The Queen (unreported, Court of Criminal Appeal, WA, No 99 of 1995, 22 May 1997). The distinction does, however, remain and is soundly based in principle. See Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at [415]. There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way.

The reason for continuing to distinguish between "new" and "fresh" evidence is not to re-establish a set of rules bordering on fixed rules but merely to recognise that, in many cases, the court is likely to exercise its discretion and refuse to admit further evidence - in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry. The fact that a tactical decision was made not to lead evidence or the fact that there was a failure to make reasonable inquiry will be facts relevant to the Court's decision about whether the convictions should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with.

There will be no miscarriage of justice. Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 675 - 676.'

(See also Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154, at [204]; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 402, 410; [1986] HCA 26; 20 A Crim R 244 at 251, 257. Evidence which was either available, or, with reasonable diligence, could have been obtained before trial, is not 'fresh' evidence (Beamish v The Queen [2005] WASCA 62, [9]). There is no miscarriage of justice merely in the failure to call evidence at trial if it was then available, or with reasonable diligence, could have been available (Mickelberg at 301; 210 per Toohey and Gaudron JJ). The position was explained by Mason J in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674 - 676, where he said that in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 it was:

' ... observed that when the evidence not called at the trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright. The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence.

In both these cases the newly adduced evidence, considered in conjunction with the evidence tendered at the trial, reveals a miscarriage of justice showing, as it does, that it would be unsound or unsatisfactory to allow the conviction to stand, in the one case because the appellant should be acquitted, and in the other because there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence. The quashing of the conviction by a court of criminal appeal in these cases is based, not on the existence of any irregularity in the conduct of the trial, but on the perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence.

However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.'

Nonetheless, as is pointed out in Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at [14]:

' ... as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could, on a narrow view, have been discovered by diligent inquiry. That is something which falls to be evaluated having regard to the circumstances of each case.'

Thus, if the evidence is not 'fresh', but is 'new' evidence, an appellate court will quash a verdict of guilty only if it either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand (Mallard, supra, [15]; Ratten, supra, at 520; and see the discussion by Steytler P in Rinaldi v The State of Western Australia [2007] WASCA 53 at [78] - [84])."

4 The applicable principles are summarised in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417, par63, by Kirby J, agreed with by Mason P and Levine J. For relevant purposes, where a verdict of acquittal is sought and the further evidence is of such cogency that innocence is shown to the court's satisfaction, or the court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged regardless of whether the evidence is fresh. However, where a new trial is sought, that outcome will only be achieved where the evidence is fresh, credible and, in the context of the evidence given at trial, it is likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused or, put another way, there is a significant possibility that the jury acting reasonably would have acquitted the accused.

5 Before turning to the question of whether the proffered evidence of Mr Fitzpatrick is fresh evidence, I mention that as the prosecution of Mr Fitzpatrick in relation to the Fiveways break-in was complete at the time of the trial on the final indictment, Mr Fitzpatrick was both a competent and a compellable witness for the appellant. Whilst the Evidence Act 2001, s17(3), provides that an associated defendant is not compellable to give evidence for or against a defendant unless the associated defendant is being tried separately from the defendant, that Act defines an associated defendant as a person against whom a prosecution has been instituted, but not yet completed or terminated. Mr Fitzpatrick's prosecution in relation to the Fiveways break-in was complete. No doubt, if the appellant had sought to compel Mr Fitzpatrick to give evidence on his behalf, real problems would have arisen in relation to the conduct of the trial and it is likely that an application would have been made to sever the Fiveways break-in counts from the final indictment. It is not necessary to endeavour to determine what the outcome of an effort by the appellant to compel Mr Fitzpatrick to give evidence would have been, as this does not bear on whether the evidence in question is fresh or not.

6 Is Mr Fitzpatrick's evidence fresh? Prior to the trial, the appellant was told by Mr Fitzpatrick that he would give evidence that he alone was responsible for the Fiveways break-in. The appellant says that he did not tell his counsel, Ms Baumeler, about this because Mr Fitzpatrick changed his mind. In the light of the appellant's full knowledge prior to trial of the evidence Mr Fitzpatrick had expressed a willingness to give, the appellant cannot maintain a claim that the evidence is fresh. Insofar as it might be appropriate in some circumstances to draw a distinction between the knowledge of an appellant and his or her counsel when assessing whether particular evidence is fresh or not, the Court was informed that it was not until after the trial that Ms Baumeler had actual knowledge of:

• Mr Fitzpatrick's police interview on 9 March 2006 in which he claimed sole responsibility for the Fiveways break-in;

• Mr Fitzpatrick's plea of guilty, on 15 December 2006, to one charge of stealing and one charge of burglary in relation to the Fiveways break-in; and

• Mr Fitzpatrick's advice to the appellant that he would take sole responsibility for the Fiveways break-in.

7 Notwithstanding Ms Baumeler's ignorance of these matters, the conclusion I reach is that had she acted with reasonable diligence, she would have been well aware of them. Mr Coombes' statement to the police expressly identified Mr Fitzpatrick as an accomplice in the Fiveways break-in and he was charged accordingly in the first and second indictments. Had Ms Baumeler enquired of the appellant as to what others involved in the events of the night of 8 March could say that might assist the appellant's defence, she would have been told of Mr Fitzpatrick's evidence. Had she made enquiries of the prosecutor or Mr Fitzpatrick's counsel as to why the prosecution had dropped charges against Mr Fitzpatrick referable to the Fiveways break-in from counts 49, 50 and 51 of the final indictment, she would have found that he had already been convicted on his plea of guilty to those or similar charges. Armed with that knowledge, it is inevitable that she would have discovered that Mr Fitzpatrick had pleaded guilty because there was compelling evidence against him on those charges, he having made full admissions to police referable to them when interviewed on 9 March 2006. In my view, regardless of whether the further evidence proffered by Mr Fitzpatrick is assessed from the viewpoint of the appellant in person or his counsel, Ms Baumeler, the evidence cannot be categorised as fresh.

8 A significant factor in Ms Baumeler's failure to make the enquiries that would have disclosed to her the evidence that is now proffered from Mr Fitzpatrick, is a tactical decision to defend the charges against the appellant by endeavouring to destroy the credit of Mr Coombes. No serious attention was given to investigating and pursuing a positive defence. The appellant did not give or call evidence. Not infrequently the evidence on a criminal trial includes a police interview with the defendant in which the defendant puts his or her version of the events in considerable detail. This was not such a case. The only evidence of an interview between the appellant and the police was the following admission:

"The accused Nathan William Mann admits pursuant to Section 184 of the Evidence Act 2001 that: -

He travelled to Launceston on or about the 8th day of March 2006 with a group that included David Coombes and Bradley Matthews.

He was later interviewed about it by Police and told them that his purpose was to get tattoos done and that they had travelled up in a car borrowed by Bradley Matthews which he, Nathan Mann, had driven up.

He also said in the interview that they were unable to find the tattoo shop and that he and Bradley Matthews returned in the car to Hobart before the burglary of the Five Ways Supermarket."

Against this background, there is no scope for the appellant to now turn to Mr Fitzpatrick's evidence in the expectation that it will provide a ground for a second trial at which a refurbished defence may be presented.

9 This conclusion does not dispose of this appeal. It will in any event succeed if Mr Fitzpatrick's evidence either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the Court as to warrant setting aside the conviction and acquitting him. In Abou-Chabake these considerations are expressed as being whether the new evidence is of such cogency that innocence is shown to the court's satisfaction, or the court entertains reasonable doubt as to guilt. Mr Fitzpatrick's evidence does not show the appellant to be innocent. That it contradicts the evidence of Mr Coombes, requires some attention. On 9 March 2006 when Mr Coombes and Mr Fitzpatrick were separately found in possession of items that linked them to the Fiveways break-in, they both made statements to the police in which they sought to protect their associates. Mr Coombes did so by refusing to name them, and Mr Fitzpatrick went further and said that he alone was responsible for the break-in. It is highly unlikely that one person did all that was required in order to effect the break-in and theft from the supermarket, as well as stealing the Torana. Mr Fitzpatrick's claim that he did so not only flies in the face of Mr Coombes' admission that he was one of the two people who entered the premises, but also his plea of guilty to charges referable to that entry. The unchallenged fact that Mr Fitzpatrick stole the Torana is consistent with Mr Coombes' statement on 9 March that he and another had entered the premises and whilst they were doing so, one of the other two members of the group stole the Torana. In his May 2006 statement, Mr Coombes identified the appellant as the other person who entered the premises, and Mr Fitzpatrick and Bradley Matthews as those who were outside and stole the Torana. I do not consider it to be of significance that Mr Fitzpatrick was able to tell the police about how the break-in was effected. It would not be surprising if Mr Coombes and the appellant bragged to their associates about how they effected the break-in without activating the alarm system. Mr Fitzpatrick was cross-examined on his affidavit by counsel for the State. His evidence was far from cogent or persuasive; it was contradictory, and as to key matters it was unbelievable. Nothing arising from his evidence causes me such a doubt about the appellant's guilt as to warrant quashing his conviction and acquitting him.

11 The facts and the appellant's contentions are set out in the reasons for judgment of the other members of the Court, which I have read in draft form. I am in general agreement that, for the reasons stated by them, this appeal should be dismissed.

12 I think it is clear that the evidence of Fitzpatrick should not be treated as "fresh evidence" because Fitzpatrick's version of events could and should have been known to both the appellant and his counsel before his trial commenced. The appellant's instructions were that he travelled to Launceston with Fitzpatrick, Coombes and Matthews; that Fitzpatrick and Coombes became separated from him and Matthews; that he returned to Hobart with Matthews; and that he did not take part in the relevant burglary. Coombes was a Crown witness. Any competent legal practitioner defending the appellant should have investigated the possibility of Fitzpatrick and/or Matthews giving evidence for him. The omission of Fitzpatrick's name from the relevant charges in the final edition of the indictment should not have gone unnoticed. Enquiries could have been made to the Director of Public Prosecutions, and/or Fitzpatrick's legal representatives. Such enquiries would no doubt have revealed that Fitzpatrick took part in an interview with police officers that was recorded; that he had pleaded guilty to charges relating to the relevant burglary in the Magistrates Court; that he consistently maintained that the appellant had taken no part in the burglary; and that he was unwilling to give evidence about that burglary when he was being tried for other crimes charged on the same indictment. Once that information had been received, it would have been necessary to decide whether Fitzpatrick should be called as a defence witness. If it was decided that he should be called, or that the option of calling him should be kept open, an application could have been made, preferably before the start of the trial, for the charges relating to the relevant burglary to be severed from the indictment and tried separately. If severance had been sought, it would almost certainly have been ordered, so that Fitzpatrick could be called as a witness without the jury that considered the charges against him needing to learn that he had been involved in the burglary of the Five Ways supermarket.

13 The appellant contends that a miscarriage of justice has occurred as a result of Fitzpatrick's evidence not being led at the trial, and that he should therefore have a new trial. The approach that should be taken in such a situation was summarised by Gibbs CJ in Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 at 395 - 396, as follows:

"The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict."

14 In my view the evidence of Fitzpatrick could with reasonable diligence have been produced by the appellant at the trial of the relevant charges, even if an application to sever the indictment would first have been necessary or desirable. That being so, I do not think Fitzpatrick's evidence was sufficiently credible to warrant the quashing of the conviction and the ordering of a new trial. The evidence established that, not long after the burglary, the police found Fitzpatrick in possession of items linking him with the burgled premises, whereupon he confessed to the burglary and asserted that no-one else had been involved. A jury hearing that evidence would be likely to conclude that others were involved, but that Fitzpatrick decided to lie to protect them. No doubt there occasionally are cases in which uncalled evidence, which could with reasonable diligence have been produced at a trial, is so cogent and credible that the failure to call it has resulted in a miscarriage of justice, so that the appropriate course is to order a new trial. This is not such a case.

16 On 9 August 2007, the appellant was convicted following a jury trial ("the trial") of one count of burglary, one count of stealing and one count of unlawfully injuring property. The appellant neither gave nor adduced evidence at the trial. The charges arose out of the unlawful entry of the Fiveways supermarket in Launceston, on the night of 8 March 2006 ("the burglary"). The appellant has appealed against his conviction. The grounds of his appeal are as follows:

"1 Evidence previously unavailable has come to light which if accepted would exonerate the accused.

a) That Christopher Leigh Fitzpatrick, a co-accused who has already been dealt with and convicted, has come forward and indicated he would give evidence on Mr Mann's behalf that Mr Mann was not present at the commission of the crime.

c) Had this evidence been available at trial it would have been contrary to the evidence given by Mr Coombes.

d) Had this evidence been available at trial it could have led a properly instructed jury to acquit."

17 At the commencement of the hearing, counsel for the appellant sought leave to add a further ground of appeal in the following terms:

"(e) The unavailability of Mr Fitzpatrick's evidence at trial has resulted in a miscarriage of justice."

The ground was added without objection from the State.

18 The Criminal Code Act 1924, s402(1) and (2), relevantly sets out the powers of the Court in respect of an appeal against conviction. The section provides as follows:

"402 (1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

19 What underpins this appeal is an assertion that evidence now available to the appellant, but not available at the time of trial, would, had it been considered by the jury at trial, have contradicted evidence of a significant prosecution witness and, in those circumstances, the jury would have had a reasonable doubt as to the guilt of the appellant and have returned a verdict of not guilty.

20 The trial proceeded with five accused, including the appellant, and one Christopher Fitzpatrick (hereinafter referred to as "CF"). The indictment upon which the trial proceeded was dated 26 July 2007. There were 57 counts on the indictment which related to the various accused. The counts the subject of this appeal were counts 49, 50 and 51 which related to the appellant alone. No one else was charged on the same indictment with the crimes charged by these counts. There had, however, been previous indictments. By indictments dated 11 January 2007 and 16 February 2007, the appellant and CF were both, in the same counts, charged in relation to the burglary. Counts 49, 50 and 51 on the indictment at trial did not, however, contain any reference to CF. He had pleaded guilty to charges relating to the burglary and elected to be dealt with summarily. He had, by the time of the trial, more particularly on 15 December 2006, been convicted and sentenced.

21 CF had been interviewed by police on 9 March 2006 in respect of the burglary, that is, the day after it occurred. He admitted to committing the burglary, but stated that he did so alone. At the trial of the appellant in respect of the burglary, the State relied almost entirely on the evidence of one David Coombes. He was also interviewed by police on 9 March 2006. He also admitted to committing the burglary, but stated that he had been with others when he did so. He was charged by police in relation to the matter and also pleaded guilty in the lower court prior to the commencement of the trial.

22 When the hearing of the appeal commenced, counsel for the appellant applied to place fresh evidence before the Court. The evidence sought to be presented was an affidavit of CF sworn 20 December 2007. Since counsel for the State wished to have an opportunity to cross-examine CF, it was determined that, for the purpose of considering whether the evidence proposed to be relied on was indeed fresh evidence and, if it were, for the purpose of considering the appeal, the evidence would be led. In the circumstances, the affidavit was read and CF was cross-examined. At the further hearing of the appeal, after an adjournment, counsel for the appellant also sought to read an affidavit of the appellant sworn 3 June 2008 to explain the nature of the appellant's instructions to her. That was not opposed by the State.

23 For the purpose of this appeal, an appeal book had been prepared which contained a number of documents. However, as the hearing progressed and questions were asked of counsel, more documents were handed up to which the Court was asked to have regard. Not all of this material was material before the jury at trial. That which was not, however, was material that came into existence during the course of police investigations and subsequent preparation for trial.

24 A significant problem with this appeal was that counsel for the appellant made a number of statements from the bar table as to her instructions from the appellant in the lead up to the trial and as to the way in which the trial was conducted by her, and generally. While the issue of some of her instructions was canvassed in the appellant's affidavit, other matters were simply stated from the bar table with no evidence to support them.

Does the evidence of CF constitute "fresh evidence"?

25 The evidence sought to be categorised as fresh evidence is that of CF. He continues to maintain that he committed the burglary alone. Counsel for the appellant made a submission, unsupported by evidence, that the evidence of CF as to that was not available to her at the time of trial. The instructions that the appellant said he gave his counsel were set out in par5 of his affidavit in the following terms:

1 Bradley Matthews, Christopher Fitzpatrick, David Coombes and myself had travelled to Launceston on the evening of the 7th of March.

2 The purpose of the journey was to find a tattooist and to get some tattoos.

3 I drove the vehicle as I was the only person licenced [sic].

5 During our attempts to find the tattooist we were spoken to by police on two occasions. On both these occasions I gave the police my correct name.

6 As a result of us not being able to find the tattooist, we argued and Christopher Fitzpatrick and David Coombes left the vehicle.

7 Bradley Matthews and myself returned to Hobart. I again drove the vehicle.

8 I did not take part in the burglary at 5 Ways Supermarket.

9 At the time of giving my counsel instructions, I had lost contact with Bradley Matthews. He had moved to the mainland and though I had tried to obtain contact details I was unable to do so."

26 The appellant asserted that, in preparation for the trial, he gave his counsel instructions about his own conduct on 8 March 2006, but that his discussion with her did not include instructions about anyone else's conduct. He also said in his affidavit:

"11 In relation to Christopher Fitzpatrick, I had no discussions with my counsel relating to him until after I was convicted.

12 I was aware that he did not want to give evidence in my trial and accordingly did not raise the option of him giving evidence at my trial with my counsel at any time prior to my conviction.

13 It was only after I had been convicted that I raised Christopher Fitzpatrick with my counsel."

27 CF, in his affidavit, said about discussions with the appellant:

"6 Prior to trial on the joint indictment I had spoken to Nathan Mann regarding the 5-Ways allegation. I had indicated to him that I was willing to give evidence to the effect that I had committed this crime on my own,

7 This conversation took place prior to me speaking to my counsel about the trial.

8 When I did discuss the matter with Mr McTaggart who appeared for me at trial, he advised me not to give evidence on Mr Mann's behalf.

9 The advice I received was that if I gave evidence relating to a matter where I had committed an offence, it might lead the jury to infer that I might well have also been involved in the matters for which I was charged on the indictment."

28 What this evidence discloses is that the appellant was well aware, prior to the commencement of the trial, of the version of events that CF now says he would have given as evidence had he been called as a witness at the trial. The appellant was also aware that, if he called a witness to give evidence on his behalf, his counsel would lose the right of last address to the jury. For his own reasons, he chose not to tell his counsel of his discussions with CF and, more particularly, alert her to the existence of evidence which, if accepted, might exonerate him.

29 The prosecution papers in this matter were prepared in February 2007. The copy indictment contained in them was that dated January 2007. It was one of the indictments in which the appellant and CF were charged in the same counts in relation to the burglary. The papers did not, however, contain a transcript of the police interview with CF. Counsel for the appellant stated from the bar table that she did not see a copy of that interview until after the trial was concluded. What, however, was in the papers was a lengthy statement by Mr Coombes. In that statement he said that he and the appellant had committed the burglary, but that CF waited outside with another of the group which had travelled to Launceston together that night. There could be no doubt counsel for the appellant read that statement because it contained the principal evidence against her client. Therefore, prior to the trial commencing, counsel for the appellant must have known there was a suggestion CF was involved in some way in the burglary.

30 When the trial began, of course, the indictment proceeded with had dropped CF as far as its containing an allegation of his involvement in the burglary. Counsel for the appellant asserted from the bar table that she did not know of CF's conviction in respect of the burglary during the course of the trial. She conceded she was aware of the suggestion CF was involved by reference to Coombes' statement, but stated she did not enquire further because Coombes had made a number of allegations.

31 There can be little doubt that had counsel for the appellant made some enquiry about CF's involvement, the fact that he had already pleaded guilty to charges arising in respect of the same burglary would have come to light. Mild curiosity, one would have thought, would have led to an enquiry as to why. While hindsight tells us that these enquiries were not made, the fact that they could have been must be taken into account in considering whether this evidence can be categorised as fresh evidence.

32 Counsel for the appellant submitted that this Court should allow the appellant's appeal. She submitted that the evidence of CF was fresh evidence, and having regard to that evidence, there has been a miscarriage of justice. She submitted that there were contradictions between the evidence of Coombes and that of CF and other witnesses. In those circumstances, had the jury had the evidence of CF, and were it properly instructed, it could have accepted either that CF was the sole offender or that CF and Coombes were involved, and, in naming the appellant, Coombes had made a mistake. At the very least, she submitted, the jury would have had conflicting accounts and would have to have had, as a consequence, a reasonable doubt as to the guilt of the appellant.

33 In submitting that this Court should allow the appeal, counsel for the appellant referred the Court to Ratten v R [1974] HCA 35; (1974) 131 CLR 510 and in particular to some remarks by Barwick CJ at 517. Those remarks need to be put in context. His Honour said, starting at 516, when dealing with the question of what might constitute a miscarriage of justice:

"Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.

There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial."

"It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction."

Counsel placed emphasis in her submissions on the words at 517:

"... and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence."

34 Counsel also referred to remarks of Gibbs CJ in Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 at 397 where he said:

"There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed. Where the fresh evidence conflicts with the evidence given at the trial, and the Court of Criminal Appeal has not heard the witnesses with whose evidence it is in conflict, it will often not be possible to decide whether a reasonable jury would (or might) believe the fresh evidence: cf per Stephen J in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, at p 672. Further, as Mason J pointed out in the same case, at p 676, the question will not necessarily be whether the evidence is likely to be believed by a jury, because evidence may be sufficiently cogent and plausible to lead a jury to have a reasonable doubt, although the jury might not necessarily prefer it to other evidence with which it is inconsistent."

35 In the present case, there can be no doubt in my view that the evidence of CF, now sought to be categorised as fresh evidence, is no such thing. The appellant knew of it, and chose not to tell his counsel. He had discussed with his counsel the position of another in the group on the relevant night, Bradley Matthews, a person who it was said could also give evidence which might exonerate him. He was aware from that discussion that, if he tried to call that witness, his counsel would lose the right of last address. The appellant's counsel knew from prosecution papers that CF had been charged with the appellant in relation to the burglary, but that by the time of the trial he was not. She also knew that the witness Coombes asserted he had committed the burglary and that the appellant and CF were involved in it. Against that background, she made no enquiry, it seems of anyone, including her client, as to CF's role in the burglary. Had she done so, it is likely his plea of guilty and potentially exculpatory evidence would have become known to her.

36 The appellant chose at trial to neither give nor adduce evidence. That was his right. However, in those circumstances the only evidence the jury had was that of the witness Coombes which placed the appellant as being involved in the burglary. It had nothing by way of exculpatory evidence from the appellant or anyone else, notwithstanding the appellant knew such evidence potentially existed. Counsel for the appellant suggests he should not be visited with those consequences when he was not well educated or versed in legal niceties. He was told by CF he would not give evidence and just left it at that. He should not now suffer for that. That does not, with respect, excuse either his own failure to even seek advice about the matter or his counsel's to make more enquiry, given the circumstances of the trial and the preparation for it.

37 If I am wrong as to that, and the evidence is admissible as fresh evidence, I would not be satisfied there has been a miscarriage of justice sufficient to enliven s402. This Court had the benefit, not only of reading CF's affidavit, but also of seeing him cross-examined by counsel for the State. Additionally, it had transcripts of the evidence of the witness Coombes and four other witnesses and transcripts of the police interviews with both CF and Coombes. Having considered all that material, I accept that there are apparent contradictions between the evidence of Coombes and that of CF. That is not surprising given what they each told police in March 2006. However, I am not satisfied that any contradictions between Coombes and other witnesses were of any significance.

38 As to the police interviews, if anything, Coombes provided more detail as to the burglary than did CF. Further, CF often simply gave monosyllabic responses to matters police put to him rather than giving his own story. As to CF's evidence in court, on a number of occasions his answers were inconsistent with what he told police at interview. His responses were vague and at times the explanations he gave for matters put to him were blatantly implausible. I am not satisfied, in the words of Gibbs J in Gallagher's case (supra), that his evidence was apparently credible or capable of being believed.

39 In all the circumstances, I am not satisfied that there was any miscarriage of justice arising from the manner in which the appellant's trial was conducted such that this appeal should succeed. I would dismiss the appeal.