Braslin v The Queen
[2000] TASSC 133
•28 September 2000
[2000] TASSC 133
CITATION: Braslin v R [2000] TASSC 133
PARTIES: BRASLIN, Leslie Raymond
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 137/1999
DELIVERED ON: 28 September 2000
DELIVERED AT: Hobart
HEARING DATES: 30, 31 August 2000
JUDGMENT OF: Cox CJ, Crawford and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Conduct of legal practitioners - Conduct of defence counsel - Evidence not adduced and questions not asked.
Criminal Code 1924 (Tas), s402(1).
R v Birks (1990) 19 NSWLR 677; Philpott v R A31/1996; Blake v R 29/1997, followed.
Aust Dig Criminal Law [999]
REPRESENTATION:
Counsel:
Appellant: J E Green
Respondent: T J Ellis
Solicitors:
Appellant: John Green
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 133
Number of Paragraphs: 24
Serial No 133/2000
File No CCA 137/1999
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
BLOW J
28 September 2000
Order of the Court
Appeal dismissed.
Serial No 133/2000
File No CCA 137/1999
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
28 September 2000
I have had the advantage of reading the Reasons for Judgment prepared by Blow J in respect of this appeal. In substance they reflect the views which led me to join in the order dismissing the appeal at the conclusion of the submissions of counsel for the appellant.
File No CCA 137/1999
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
28 September 2000
I respectfully agree with the reasons for judgment of Blow J. There is nothing I wish to add.
File No CCA 137/1999
LESLIE RAYMOND BRASLIN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
28 September 2000
The appellant was tried together with his father and his son on a number of charges that arose out of an incident that occurred in the early hours of the morning on 3 February 1999. He was convicted as an abettor on three counts of aggravated assault. He was also convicted on one count of assault. He was acquitted of other charges. He appealed against his four convictions. On 31 August 2000, we dismissed his appeal and said that we would publish our reasons at a later date. These are my reasons for joining in the dismissal of the appeal.
Background
At the time in question, the appellant was a farmer. Some of his sheep were missing. He intercepted a vehicle being driven by one Steven Ransley, who was towing a trailer containing the missing sheep along a road at Tunnack, accompanied by his sons Michael and Aaron. There was evidence that Mr Ransley was taking the sheep to a municipal pound. The Crown case was that, at the time of the interception, the appellant was armed with a baseball bat or similar implement, and that he was accompanied by his father and his son, Travis, both of whom were armed with shotguns. The first count on the indictment charged all three accused with aggravated assault. It was alleged that the appellant's son had pointed his shotgun at Michael Ransley and threatened him, and that the appellant and his father had abetted that assault. The second count, also one of aggravated assault, alleged that the son had pointed his shotgun at Steven Ransley and threatened him, and that the appellant and his father had abetted that assault. Count 3, which concerned the appellant alone, alleged that he had assaulted Steven Ransley by striking him to the face with a baseball bat. Count 4, another count of aggravated assault, alleged that the appellant's father had assaulted the three Ransleys by pointing a shotgun at the car in which they were seated and that the appellant had abetted him. It was on those first four counts that the appellant was convicted. The Crown also alleged that the appellant's son had fired his shotgun at the Ransleys' car, wounding Steven Ransley and damaging the car, but the jury acquitted all the accused of all charges in relation to that alleged shot. When giving evidence at the trial, the appellant admitted that there had been an encounter between him and the Ransleys, that he was accompanied by his father, and that they had recovered the sheep, but he denied that his son was present, denied that there were any guns at the scene, denied that he had had a baseball bat or anything similar, and denied that there was any violence.
All three of the Ransleys gave evidence for the Crown at the trial. They described the alleged assaults that were the subject of counts 1 - 4, said that the trailer had been detached, and said that, as they were driving away, a shot was fired which broke the back window of the car and wounded Steven Ransley. They said the appellant's son smashed one of the headlights with the butt of his shotgun. Michael Ransley gave evidence that he recognised the appellant's son, who had gone to school with him. Police photographs were tendered showing damage to the vehicle consistent with it having been struck by shotgun pellets from behind, as well as having a broken headlight. Medical evidence established that two shotgun pellets had entered Steven Ransley's body in the vicinity of his left shoulder blade and come to rest in the lower neck, apparently one on the right and one on the left. An independent witness who lived near the place where the Ransleys' vehicle was stopped, Mr Hooper, gave evidence that he was awoken by noise, looked out his window, heard shouting and swearing, saw three people, heard someone tell the driver to keep going, and heard the bang of a shotgun being discharged. Mr Hooper gave evidence that he found a heap of broken car window glass on the road later, and that, back down the road further, there were a broken headlight and headlight protector. Apart from the appellant giving evidence, none of the accused adduced or gave any evidence.
Ground 1
By ground 1 of the amended notice of appeal, the appellant contended that his counsel at the trial had defended him so badly that he had failed to receive a fair trial. In particular, it was contended that in various respects, the appellant's counsel at the trial had failed to call evidence that he should have called, and had failed to cross-examine on matters that he should have cross-examined on. In some respects he alleged that his counsel failed to comply with his instructions. Under the Criminal Code, s402(1), this Court is required to allow an appeal if it is of the opinion that "on any ground whatsoever there was a miscarriage of justice". There is a similar statutory provision in New South Wales. In R v Birks (1990) 19 NSWLR 677 at 685, Gleeson CJ summarised the principles relevant to appeals concerning the performance of defence counsel as follows:
"1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
It is well settled that those principles are applicable in Tasmania: Philpott v R A31/1996; Blake v R 29/1997.
At the hearing of the appeal, the appellant's most substantial complaint was that he had instructed his counsel at the trial, Mr Geason, to call his wife and his mother as witnesses, but that Mr Geason had not done so. There seems no doubt that the appellant instructed Mr Geason that his son had remained at home with his wife and his mother at all material times, and that his wife and his mother could give evidence to that effect. But at the hearing of the appeal, we received conflicting evidence as to whether the appellant had instructed Mr Geason to call them. He gave evidence that he had given such instructions, and Mr Geason gave evidence that he had not. The appellant conceded under cross-examination that he had never taken his mother to Mr Geason's office, that Mr Geason had not taken a statement from his wife to his knowledge, and that both ladies had sat at the back of the court throughout the trial. He said in an affidavit that he had given instructions to call both ladies, but under cross-examination spoke of a different arrangement, whereby Mr Geason was to call them only if his son's counsel decided not to. Mr Geason swore an affidavit in which he said that he discussed with the appellant whether the two ladies should be called, that it was agreed that he would call only the appellant, and that the appellant did not change his instructions on that point. His version of events is supported by the fact that he apparently took no step towards preparing to call either of the two ladies as a witness, and by the fact that he did not arrange for them to stay outside the courtroom. Because of those matters, and because the appellant seemed to me to be a most unimpressive witness, I accept the evidence of Mr Geason that he had no instructions to call either of the two ladies.
But that is not necessarily the end of the matter. It is also necessary to consider whether his failure to call them, or either of them, amounted to a blunder which caused or contributed to a miscarriage of justice. I do not think that was the case. The primary significance of evidence that the son was at home at all material times was as alibi evidence for the son, rather than as evidence exculpating the appellant in relation to charges of abetting aggravated assaults by his son. It was therefore not inappropriate for Mr Geason to leave it entirely to the son's counsel to decide whether or not to call such alibi evidence. That is what Mr Geason did. There was a risk that such alibi evidence, if given, might not have been believed. In the case of the appellant's mother, there is a chance that she might not have been willing to give evidence that she was with her grandson at the critical time. She apparently swore an affidavit for the purposes of the appeal, but when she was called for cross-examination on that affidavit she failed to appear. After an overnight adjournment, the appellant's counsel announced that he would not be calling her or reading her affidavit, and gave no explanation for her absence. It may well be that she was unwilling to repeat in the witness box the evidence that her son and his wife had given as to the whereabouts of her grandson. Given these matters, I am not persuaded that Mr Geason's failure (if that is the right word) to call the appellant's wife and mother as defence witnesses was a mistake that caused or contributed to a miscarriage of justice.
At the trial, Aaron Ransley gave evidence that one of the three assailants was wearing a "Makita hat", and that that individual was carrying a piece of wood. The appellant said in his affidavit that his son wears a Makita hat, that he does not, and that he instructed Mr Geason to call his wife and mother to give evidence as to those facts. However, adducing evidence that the son used to wear such a hat would have conflicted with the appellant's evidence that his son was not present, and as a result could have done the appellant more harm than good. I therefore do not think Mr Geason should be criticised for not adducing such evidence, nor for omitting to lead such evidence from the appellant, nor for failing to challenge Aaron Ransley's evidence as to the hat.
It was submitted that Mr Geason should have adduced evidence that the appellant and his wife both telephoned a Constable Hyatt at the Oatlands Police Station and the 000 emergency line to report the theft of the appellant's sheep on 2 and 3 February 1999. A Detective Sergeant Gilbert gave evidence at the trial that the appellant had contacted the police in relation to "an incident which had occurred the previous night in regards to an allegation of sheep having been stolen, his subsequent recovery of those sheep, and confrontation with some persons, and subsequent reporting of those sheep being stolen again". I am unable to see how any additional or more detailed information as to what the appellant and his wife told the police about the sheep could possibly have strengthened the appellant's chances of acquittal.
Mr Steven Ransley made a statutory declaration for the purposes of the committal proceedings which did not include any assertion that he had been struck in the face by the appellant with a baseball bat or anything similar. No charge in relation to such an assault was laid prior to the appellant being indicted. Both Mr Ransley's sons said in statutory declarations tendered in the committal proceedings that such an assault had taken place. Their father was not cross-examined at the committal about those allegations. He said at the trial that the appellant had sort of pushed the baseball bat, or whatever he had in his hand, into his face saying, "You're dead, you bastards", and that it had touched his face fairly hard. Hospital notes tendered at the trial contained information as to Mr Ransley's gunshot wounds, but contained no record of him being hit in the face with anything. The notes indicated that there was no evidence of any injury other than the gunshot wounds. It was submitted that Mr Geason should have adduced evidence that the appellant had not been charged in the Court of Petty Sessions with assaulting Mr Ransley with a baseball bat, and that he should have cross-examined Mr Ransley as to his failure to mention such an assault in the committal proceedings or to the doctor. However, the references to such an assault in Mr Ransley's sons' statutory declarations suggest that there was no realistic chance of the jury ever accepting that Mr Ransley had recently invented his evidence of such an assault. It seems highly likely that mention of such an assault was omitted from his statutory declaration through oversight, perhaps as a result of him and/or a police officer concentrating on the evidence that he had been shot. In any event, the hospital notes spoke for themselves, and there was no criticism of Mr Geason's closing address, in which the hospital notes could well have been mentioned. It seems the assault to Mr Ransley's face did not cause him any damage worth reporting to a doctor, and that counts 1, 2 and 4, which involved making threats with shotguns, were more significant charges.
The doctor who treated Mr Ransley noted, apparently on the basis of what Mr Ransley said, that he had been shot "by unknown person". It was submitted that this supported the appellant's contention that no-one had had any guns when he and his father met the Ransleys, and that Mr Geason ought to have cross-examined Mr Ransley about the doctor's note. Mr Ransley's evidence at the trial was that he was driving away, looked in the rear vision mirror, saw "the young bloke holding the gun", and then heard the explosion of a gun being fired, at which stage the glass shattered, there were pellets flying everywhere, and he felt a sort of burning sensation in his shoulder. He did not give direct evidence that it was "the young bloke" who had fired the shot. His evidence was that the eldest of the three people who intercepted him also had a shotgun. He did not attribute the shot to any individual. The doctor's note was consistent with him saying that he did not know who had shot him, and such a statement would have been consistent with his evidence. Many cross-examiners would no doubt have asked Mr Ransley about the note made by the doctor but, given that Mr Ransley did not claim to know which of the two armed individuals had shot him, it seems almost inevitable that he would have responded that he had told the doctor no more than that.
Mr Ransley had collected the sheep that he was taking to the pound from a neighbour of the appellant named Purcell. At the trial, Mr Ransley was asked whether Mr Purcell was a friend of his, and replied in the affirmative. It was submitted that Mr Geason should have cross-examined Mr Ransley as to prior statements inconsistent with that affirmative answer, but the appellant's counsel did not identify any statements made by Mr Ransley, in the committal proceedings or elsewhere, that were inconsistent with it, and I have been unable to find any.
In his statutory declaration made for the committal proceedings, Mr Ransley said that on the night of 2 February 1999 Mr Purcell told him that the Braslins had been "causing shit" in the two weeks that they had then been back in the district. When cross-examined at the committal, Mr Ransley denied that Mr Purcell had said any such thing. In cross-examination at the trial, Mr Geason asked whether anyone had mentioned during the relevant conversation that the Braslins had been giving the Purcells a hard time. Mr Ransley replied in the negative. Mr Geason had something shown to Mr Ransley, asked Mr Ransley whether it had been stated that the Braslins had been causing Mr Purcell "shit" in the two weeks since they got back, and was told by Mr Ransley that he did not remember, but had previously said that that was so. Mr Ransley conceded that he had previously made comments that were different from what he was saying that day. It was submitted that Mr Geason should have taken the matter further than that. I suppose he could have done so by seeking a concession from Mr Ransley that, in addition to contradicting his statutory declaration at the trial, he had contradicted it at the committal. But the reliability of Mr Ransley's memory of his conversation with Mr Purcell, whilst technically relevant to his credit, was of no real significance in relation to the critical questions that the jury had to decide, namely whether the Crown had established beyond a reasonable doubt the guilt of the appellant in relation to each of counts 1 - 4.
On 8 February 1999, Mr Purcell's wife applied for a restraint order against the appellant under the provisions of the Justices Act 1959. The appellant has sworn an affidavit annexing some pages from her application, but not all of it. She apparently said in her application that she and her husband found on 30 January 1999 that their gate had been smashed to pieces, whereas her husband's evidence at the trial was to the effect that it was on the night of 2 February that he found the gate had been smashed. Mrs Purcell also said that the sheep in question had broken an electric fence on the evening of 2 February, whereas her husband said at the trial, when cross-examined by Mr Geason, that the sheep must have been pushed through the electric fence because sheep will not go through one. It was submitted that Mr Geason should have cross-examined Mr Purcell as to these contradictions. I do not believe that doing so could have made any significant difference to the appellant's chances of acquittal on any count. In any event, there is no evidence before the Court that Mr Geason was ever provided with a copy of Mrs Purcell's application.
It was submitted that Mr Geason did not cross-examine Mr Ransley adequately as to his knowledge that the sheep belonged to the appellant. Mr Geason did put to Mr Ransley that it became pretty obvious to him that the sheep belonged to the Braslins and that they were going to take them back, to which Mr Ransley responded that he did not know who they belonged to. Mr Geason certainly did not put to Mr Ransley that he knew the sheep belonged to the appellant and was taking them out of spite. Mr Geason gave evidence, which I accept, that he did not want to ask questions which involved imputations on the character of any prosecution witness, since he did not wish the jury to learn of the appellant's prior convictions. That was a very sensible strategy. I think it follows that he cannot be criticised for not cross-examining Mr Ransley further as to whether he knew the appellant owned the sheep.
One of the police witnesses, Sergeant Smith, made a statutory declaration in which he described Mr Ransley's vehicle as yellow, but said at the trial that it was cream, whereas it seems to be white in the photographs tendered at the trial. It was submitted that Mr Geason should have cross-examined about these discrepancies. At worst, the sergeant made two mistakes as to the colour of the vehicle that had been damaged by a shotgun blast, and had had a front headlight smashed. Cross-examination as to the accuracy of his observations would not have improved the appellant's chances of an acquittal on any charge.
As I have said, one of the shotgun pellets was found on the right side of Mr Ransley's neck. A ballistics expert, Sergeant Dutton, gave evidence at the trial that the damage to Mr Ransley's vehicle was caused by a shotgun being discharged "at the rear of the vehicle from behind and slightly to the left". It was submitted that Mr Geason should have cross-examined as to "the inconsistency of the shotgun pellet being found in the right side of Mr Steven Ransley's neck and the evidence tending to show that the car had been shot from the right to the left". As the evidence tended to show that the car had been shot from the left to the right, there was no such inconsistency.
That concludes the criticisms that were made of Mr Geason as to his conduct of the appellant's defence. When a number of criticisms are made, I believe that any failures or shortcomings on the part of defence counsel ought to be considered in the aggregate for the purpose of deciding whether there has been a miscarriage of justice. But in this case, I do not think it has been demonstrated that Mr Geason's conduct of the case involved any errors of judgment or any negligence, let alone the sort of "flagrant incompetence" referred to by Gleeson CJ in R v Birks (supra). The appellant received a fair trial. There was no miscarriage of justice. I therefore decided ground 1 should fail.
Ground 2
Ground 2 involves an assertion that, by reason of the matters complained about in relation to ground 1, the verdicts of the jury were unsafe and unsatisfactory. As there was no substance to ground 1, I decided ground 2 should also fail.
Ground 3
The third and final ground of appeal concerns the direction by the learned trial judge to the jury as to what constitutes abetting. It was submitted that he erred by tending to suggest that, in order for the appellant to be convicted for abetting his son or his father, the Crown "would only have to show that the appellant was present when the complainants were threatened with a shotgun" by the son or the father. The matters that need to be established beyond reasonable doubt before a jury can convict an abettor on the basis that he or she encouraged the commission of a crime were authoritatively stated by Underwood J (with whom Cox J, as he then was, and Crawford J agreed) in Hutt v R 21/1989 at 23 - 24 as follows:
"Criminal liability for the crime charged … will attach to an abettor if the jury is satisfied to the requisite degree that:
1 the crime charged or its alternative was committed.
2 the conduct of the accused in fact encouraged the commission of that crime.
3 the accused intended that there be such encouragement.
4 the accused wilfully encouraged the commission of the crime, that is to say, shared a common criminal purpose with the principal offender."
The learned trial judge circulated a memorandum to the jury, listing the matters that the Crown would need to prove in order for the appellant (inter alia) to be convicted as an abettor in relation to counts 1, 2 and 4. The four matters referred to in Hutt as needing to be established for a person to be convicted as an abettor were separately identified first in relation to counts 1 and 2, and later in relation to count 4. In relation to each count, the final requirement was stated in the memorandum as follows:
"At the time of those acts and/or words [ie, the acts and/or words of encouragement] Leslie Braslin knew of the facts which must be proved to establish that the crime of aggravated assault was committed." [My interpolation.]
The learned trial judge said the following to the jury in relation to the final requirement:
"Now in this case you can see why that's not much trouble because if you're satisfied beyond reasonable doubt that the Ransleys' account of what happened is correct then you must be, I would think, although it's a matter for you, you must be satisfied beyond reasonable doubt that Mr Leslie Braslin would know all the facts that go to make up the crime of aggravated assault on counts 1 and 2 because he's right there, he can see it all happening. So it doesn't seem to be a problem in this case, that last element.
… if you're satisfied beyond reasonable doubt that the Ransleys' account is substantially correct then you can take into account that Mr Leslie Braslin and his son went there together in the car. According to the Ransleys they got out of the car together, one carrying a gun, the other carrying a bat, that they walked towards the car. All those acts you could, I'm not saying you must, but you, the jury could construe them as acts of abetting by Leslie of his son, Travis, to commit the crimes charged by counts 1 and 2, he was giving him encouragement by being there in those circumstances."
It was submitted on the basis of the first paragraph that I have quoted, and on the basis of the final words, "he is giving him encouragement by being there in those circumstances", that the jury might have been misled to believe that the Crown did not need to prove beyond reasonable doubt that the appellant intended to encourage the aggravated assaults, nor that he shared a common criminal purpose that those acts of aggravated assault be committed. There is no substance to that submission. The learned trial judge adequately explained, both orally and in his memorandum, each of the four elements that needed to be established before the appellant could be convicted as an abettor. I therefore decided ground 3 should fail.