Blatch v The Queen

[2005] HCATrans 176

[2005] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B92 of 2003

B e t w e e n -

BRETT EDWARD BLATCH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.36 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please, your Honours, I appear for the applicant with MR G.S. ANDREW.  (instructed by Terry Fisher & Co)

MR R.G. MARTIN, SC:   May it please, your Honours, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

McHUGH J:   Yes, Mr Smith.

MR SMITH:   Your Honours, this is a case where the applicant says that important evidence was not placed before the trial court or the Court of Appeal and the applicant’s submission is that if that evidence had been heard by the trial court and/or the Court of Appeal he would have either had a fair chance of an acquittal on the Crown case as it stood or, alternatively, his appeal would have been allowed by the Court of Appeal.

The problem the applicant faced before the Court of Appeal was that originally he was told by the learned President he should go away and prepare an affidavit with references to the committal depositions.  He did that but came back before a differently constituted Court of Appeal and the Court of Appeal on that occasion refused to examine that which he had put into his outline and the depositions to which he wished to make reference which in the submission of the applicant led the Court of Appeal into error at paragraph [19], application book page 70.  It was said by Justice Davies that:

The statements of Crown witnesses to police and the transcript of the committal proceedings were plainly available to the appellant at his trial and his counsel cross-examined Crown witnesses on such statements and on their evidence in committal proceedings.  There is no reason to believe that the appellant’s counsel did not make the best possible use of this evidence at trial.  Even if this evidence was admissible at trial, for the above reasons it is not now admissible.  There is no substance in this ground and we have already refused to admit such evidence. 

The error the applicant says has crept into the judgment is that how, I ask rhetorically, the court could find that the applicant’s counsel made the best use of such evidence at trial when they did not look at the evidence to see whether that in fact was true.  Now, there was no doubt in this case, your Honours, that ‑ ‑ ‑

McHUGH J:   Was not an affidavit filed with the depositions annexed?

MR SMITH:   Your Honour, it was not strictly speaking an affidavit.  What Mr Blatch did was prepare an outline of some 12 pages which is headed “Grounds of Appeal” and he went through in point form through the evidence to which I make reference and he could have given sworn evidence of course, if necessary, before the Court of Appeal on such matters so he did try and place before the court the relevant evidence to which we make reference in our outline. 

Your Honour, the evidence was very important because two eyewitnesses to the shooting have told investigating police who turned up at about 11.15 pm on the night of the shooting that the shooter was in fact Carmody, not Mr Blatch.  There were notes made by these police officers in their notebooks of that.  For example, Constable Taylor on two occasions made a note that Mrs Davies told him it was Carmody who was the shooter, not Blatch.  She ultimately gave evidence at trial she saw no one else at the scene near that vehicle from where the shot emanated from.

Additionally, Ryan Davies who was the son, told Constable Eadie at the scene that his father had been shot in the head and the offender had left in a Suzuki four‑wheel drive.  He said the same thing to Constable Glen Morgan.  Eadie, Morgan and Taylor were not called at the trial.  The two witnesses were not challenged on what they had said to those police witnesses on cross-examination.

Obviously enough, the Court has authoritatively decided the principles relating to this sort of appeal in TKWJ and the point the applicant wishes to make is that the Court of Appeal could not even apply those principles to this case because they would not look at these depositions to see whether Mr Blatch was properly represented at the trial. 

HEYDON J:   There is a difference between refusing to admit evidence and not reading it at all.  Is there anything to suggest that they did not even read the ‑ ‑ ‑

MR SMITH:   Yes, there is, your Honour.  In the transcript of the hearing on 17 October 2003 Justice Davies said - this is page 3, line 30: 

We won’t admit any of that evidence, Mr Blatch.  Go ahead with your appeal on the basis that they’re not involved.

Blatch said:

Well that’s standard, isn’t it –

in an argumentative fashion to…..  Certainly, your Honour, his Honour said earlier at page 2, to the appellant who said:

The documents now include the police brief of evidence and the transcripts of the committal, is that correct?

HIS HONOUR:   No, they won’t include the police brief of evidence.  You can say something about that if you like but I can say that my view at the moment is that none of that would be admissible in this appeal.

So it seems that the transcripts before the Court of Appeal did not include the committal transcripts and the police brief of evidence.  That is not to say that I can positively tell your Honour that…..did not read it but it seems unlikely in light of what his Honour told the applicant in October 2003.

HEYDON J:   …..difficulty that there was an experienced representative of your client at the trial.  He or she made some decision not to tender this evidence which was available to be tendered.  Why should one second‑guess that decision?

MR SMITH:   That is always a difficulty an applicant faces on an appeal of this nature and obviously enough, a court applying the principles of TKWJ must look at whether there was a rational, tactical decision made.  The problem the applicant says occurs in this case is that because the evidence was not admitted to be looked at by the court, the court was never in a position, that is the Court of Appeal, was never in a position to determine whether a rational, tactical decision was made not to have those witnesses called at trial or to raise the issues in cross-examination.

Now, it might have been the Court of Appeal, if it had had that evidence heard from the solicitor or counsel for the applicant, which is common practice on these sorts of appeals, it might have been decided, yes, there was experienced counsel, there was a rational, tactical decision for the approach taken, appeal dismissed.  But the problem for the applicant here is he was never able to get to that position for the appeal to be properly determined by the court. 

Additionally, it seems unlikely there could have been any rational decision for counsel not requiring those witnesses or not raising the issue on cross-examination if the Crown case was squarely and fairly that my client was the shooter.

McHUGH J:   And how was he going to get it in on cross-examination?

MR SMITH:   Because firstly, your Honour, he would be entitled to cross‑examine Mrs Davies and Ryan Davies on statements made to initial police at the scene, in my submission.  If the Crown case was that, in fact, it was Blatch the shooter, not Carmody, one would have thought that would render admissible hearsay statements made by Mrs Davies and Ryan Davies to investigating police who had arrived at the scene. 

McHUGH J:   How would the hearsay statements be involved?

MR SMITH:   Because it seemed that in the trial transcripts, Mrs Davies and Ryan Davies backtracked a bit from Carmody being the actual shooter and my submission is there would be a fair argument that their statements made to the investigating police would be previous inconsistent statements and they could be proved by the calling of the initial police officers.

HEYDON J:   There is a section of the Evidence Act (Qld), is there, that makes previous inconsistent statements evidence of the truth of ‑ ‑ ‑

MR SMITH:   Yes, section 19 of the Evidence Act renders it admissible, as I recall it and section 101 of the Evidence Act ‑ ‑ ‑

McHUGH J:   We dealt with it in Soma on the very Queensland provision.

MR SMITH:   Yes, so your Honours I think I have said as much as I can about this important evidence not going before the trial and Court of Appeal being in error in failing to deal with this matter.

McHUGH J:   But, Mr Smith, it is totally unsatisfactory.  It is unsatisfactory in the sense that the depositions do not seem to have been before the Court of Appeal.  The depositions are not before us.  The transcript is not before us.  How can we make a judgment that there is a possible miscarriage of justice sufficient to warrant the grant of special leave.  We do not have the trial transcript.  We do not have the depositions.

MR SMITH:   We attempted to at the least have Mr Blatch’s outline where he made specific references to this evidence put into the application book but for some reason it was not permitted, your Honours.  What I can do, if your Honours were considering granting leave is I could – with my learned friend have an agreed set of further documents.

McHUGH J:   Well, there are problems about that as you are well aware.  The authority in this Court is that we will not – in Eastman we said we will not take new evidence on special leave applications that would not be admitted on an appeal and if the material was not before the Court of Appeal then it cannot be before this Court.

MR SMITH:   Well that…..our point.  My client tried to put it before the Court of Appeal and they would not read it and that is why really I suppose…..taken it.  I do understand your Honour’s comment about that material not being before this Court.  It was really the only way that we could conduct the appeal, I suppose, in light of what happened below and in October 2003.  But really, your Honours, my submission is that the statement by the Court of Appeal that:

There is no reason to believe that the appellant’s counsel did not make the best possible use of this evidence at trial -

could never be reached by the court.  That is really what I can say about that topic, your Honours.

McHUGH J:   You have seized on that particular sentence, but what about the first sentence in paragraph [19] where they say it was “plainly available” to counsel and their Honours say:

and his counsel cross-examined Crown witnesses on such statements and on their evidence in committal proceedings. 

MR SMITH:   Your Honours, my submission is that it is beyond comprehension why this evidence was not cross-examined on where these two witnesses say that Carmody was the shooter to these police and the Crown case was that Blatch was the shooter, so there is no rational, tactical decision for it.  That is my response to that, your Honour.  The second point I wanted to make, your Honour, was that a key plank in the prosecution case was Ms McDougall, who was Carmody’s de facto.

McHUGH J:   Yes, but there is no suggestion that she was unreliable in any way, is there?

MR SMITH:   Well, there is, your Honour, because in the committal proceeding, she failed to give evidence of that conversation about my client apparently going to hide in the bushes as backup for Carmody.

McHUGH J:   But that does not mean that as a matter of law a judge is bound to give a direction.

MR SMITH:   True, but when she had had double her amount of cones of cannabis that night, which she conceded…..the trial she knew of and condoned the business of cannabis growing between Carmody and the deceased man; she apparently was present when the weapon was disposed of.  My submission is that if it had come out at trial that she had not given evidence of this important conversation in the committal proceedings in December 2001, it was almost inevitable that some sort of warning about her evidence would have been given, your Honour, and again, this is probably a subsidiary point to my first…..about the officers at the scene but my submission is that both points in this case mean my client has been deprived of, not only a chance of acquittal here, but his appeal being

properly considered by the Court of Appeal in Queensland, your Honours.  Thank you, your Honours.

McHUGH J:   Thank you.  Yes, Mr Martin.

MR MARTIN:   May it please, your Honours ‑ ‑ ‑

McHUGH J:   Mr Martin, the only possible point that could trouble the Court is this TKWJ point about incompetence of counsel.  Can you explain why counsel may not have asked these ‑ ‑ ‑

MR MARTIN:   Readily, your Honour, readily.  Blatch was denying at trial that he was even there.  That was the thrust of his explanation.  Carmody was admitting that he, Carmody, was present but was claiming that a third party unknown to him who ran away and was dressed in camouflage pants was the one who did the shooting.  In my respectful submission, it was not in Blatch’s particular interest to dilute the thrust of his claim of absence by upsetting the apple cart, as it were, by blaming Carmody. 

Blatch was heard on a taped call with McDougall asserting on a number of occasions that Carmody did not do it and on another occasion he claimed that forensics would be able to prove that it was not Carmody.  So to dilute his own credibility by tactically attacking Carmody was likely to be very difficult.  Moreover, if he did, one might think that it was a likely consequence that Carmody would then have to get in the box and if he did so, from Blatch’s point of view, that might have been fraught with peril.

One particular point of peril is there was evidence from McDougall, and this was not admissible against Blatch, it was only admissible against Carmody, that there was evidence from McDougall that Carmody had said to her things about gunshot residue being found on Blatch’s jacket.  Now, with Carmody out of the box, that was not admissible.  If Carmody got in the box and Blatch had no necessary idea of what Carmody was going to say about that, it might well become admissible so Carmody knowing of gunshot residue on Blatch’s jacket might well be a difficulty, even if Carmody tried to adhere to the comment about ‑ ‑ ‑

McHUGH J:   So what you say is that counsel at the trial made the forensic decision that whatever else happened in the case he did not want to be in a position where Carmody was forced to go into the witness box?

MR MARTIN:   Well that is, in my respectful submission, a perfectly sound analysis of the material and that is the obvious explanation to a scrutiny of these proceedings as to why counsel did not want to blame Carmody. 

McHUGH J:   We need not hear any more.  Yes, what do you say to that, Mr Smith.

MR SMITH:   Your Honour, it is all well and good now for the Crown to put forward to your Honour a theory as to why the issue might not have been raised at trial, but we do not know this and the Court of Appeal should have examined these depositions and my client’s material to explore that issue to see whether the principles to be applied applied in this case.  Mr Blatch in his material at the Court of Appeal denied that counsel was acting on instructions and alleged that these matters should have been raised so that what has been put forward by the Crown is simply a theory at this point.

McHUGH J:   Yes, I know but it seems surprising at first instance on what you said that counsel did not ask these questions but what is put forward by Mr Martin suggests a real, very sensible explanation for it and in the end, we are always concerned whether or not there is a miscarriage of justice, even if something had gone wrong in the Court of Appeal if they have overlooked some point or something, ultimately we have to look at the question whether there is a real miscarriage of justice.  It does not seem to me at the moment, Mr Smith, that that is the case.

MR SMITH:   I think, your Honour, that I have submitted as much as I can for my part and ‑ ‑ ‑

McHUGH J:   Yes, you certainly have.  Thank you, Mr Smith. 

The Court is of the view that there are not sufficient prospects of succeeding on the ground that there has been a miscarriage of justice in this case.  In those circumstances, the application must be dismissed. 

AT 10.58 AM THE MATTER WAS CONCLUDED