Mann v Tasmania [2008] TASSC 34

Mann v Tasmania [2008] TASSC 34 - TASSC 2008 case summary — Zoe

[17]

• 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:

[45]

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:

[51]

' ... 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.'

[63]

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.

[65]

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.

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