R v Blanchette

[2001] NSWCCA 446

CITATION:	R v Blanchette [2001] NSWCCA 446
FILE NUMBER(S):	CCA 60185/01; 60158/01; 60168/01; 60159/01
HEARING DATE(S):	05/11/01
JUDGMENT DATE:	5 November 2001
PARTIES :	Regina v Benjamin Ralph Blanchette; Regina v Christian Joshua Blanchette
JUDGMENT OF:	Heydon JA at 1, 28; Dowd J at 26; Bell J at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0595; 00/11/0754
LOWER COURT JUDICIAL OFFICER :	Flannery ADCJ

COUNSEL :	Mr R D Ellis (Crown) Mr D C Andersen QC/Mr G L Heathcote (Appellants)
SOLICITORS:	S E O'Connor (Crown) Proctor & Associates (Appellants)
CATCHWORDS:	Criminal Appeal - Robbery in Company - New trial - Where Crown conceded appeal against conviction should be allowed but sought new trials - Whether new trials should be ordered or acquittals entered - Whether Crown proposed to make a new case not made at first trial - ND
CASES CITED:	R v Jiminez (1992) 173 CLR 572 King v R (1986) 161 CLR 423 R v Murrell [2001] NSWCCA 179 Reid v R [1980] AC 343
DECISION:	See para 25

60185/01
60158/01
60186/01
60159/01
HEYDON JA
DOWD J
BELL J

5 November 2001

REGINA v Benjamin Ralph BLANCHETTE

REGINA v Christian Joshua BLANCHETTE

Judgment

:

On 19 December 2000 after a trial without jury Flannery ADCJ, QC, convicted Benjamin Ralph Blanchette and Christian Joshua Blanchette on the following charges, namely that they:

“1. On 31 December 1998 at Sydney in the State of New South Wales, being then in company with each other and one unknown male, did rob Hamish McManus of forty dollars cash, the property of Hamish McManus.
2. On 31 December 1998 at Sydney in the State of New South Wales, being then in company with each other and one unknown male, did rob Paul Hampsey of four hundred dollars cash and one ‘Rusty’ brand wallet, the property of Paul Hampsey.”

2 On 6 March 2001 each accused was sentenced to eighteen months’ imprisonment with a non-parole period of twelve months. On 11 May 2001 the trial judge ordered the non-parole period to be served by way of home detention.

3 Each accused has appealed against conviction. The Crown has appealed against the sentences on the ground of manifest inadequacy.

Background

4 Mr Hampsey and Mr McManus testified that at about 2.30am on 1 January 1998, they were near the War Memorial in Hyde Park, Sydney. Mr Hampsey said he was punched three times, and that his wallet containing eight $50 notes was taken from him. Mr McManus said he was hit once on the head and then kicked by three men as he lay on the ground. They demanded money. He gave them his wallet; they removed the money in it; and they threw his wallet back at him as they ran away. Mr McManus chased them into Bathurst Street in a westerly direction. The accused were shortly afterwards apprehended by police officers in a passing police car in Castlereagh Street near the corner of Bathurst Street.

5 In essence the Crown case was that Mr McManus chased the three men who had attacked him and Mr Hampsey, and that the police had arrested two of those he was chasing. The arresting police noticed Mr McManus chasing two men in Bathurst Street and continued to observe them from Bathurst Street travelling west. They said they arrested the two men Mr McManus was chasing. Mr Hampsey’s eight $50 notes were crisp. Eight $50 notes were found in Benjamin Blanchette’s possession. There was police evidence that they were “as good as brand new, very fresh”. Four of them had consecutive numbers.

6 The appellants said they had not run west down Bathurst Street, but were moving east. Benjamin Blanchette said that he took the notes out of his bank account via EFTPOS over the previous period. The appellants relied on their good character. They also contended that Mr McManus had erred in identifying them because he had been drinking, because there was unsatisfactory lighting in Hyde Park, because of the speed of the assault and because of his injuries. The appellants also relied on the fact that one John McGinness, who did not give evidence, handed to the police on 7 March 1999 a black wallet containing documents apparently belonging to Mr Hampsey, together with $406.80.

7 While the trial judge did not make findings of fact in any very clear way, he did appear to accept the Crown case.

Grounds of appeal on conviction

8 The appellants expressed their grounds of appeal as follows:

“1. His Honour erred in respect of the onus of proof . His Honour is not seen to find that the onus of proof was on the Crown.
2. His Honour erred in respect of the standard of proof . At the time of reaching and giving Judgment the trial miscarried when His Honour convicted on the following basis ‘ … but I do find the offences proved and I think I should return the verdict of guilty.’

3. Character

His Honour failed to address himself adequately as to the good character of both appellants. Notwithstanding that His Honour adverted to evidence of character, His Honour does not expose his reasoning process as to how (s 17 Criminal Procedure Act), notwithstanding the evidence of good character, a guilty verdict was reached.
4. In directing himself as to the identification evidence His Honour is not seen in his judgment to discharge the obligation imposed by s 116 of the Evidence Act in respect of the intoxication of, and injury to the head of, the alleged victim Mr McManus. Notwithstanding that His Honour adverted to the need for caution before accepting identification evidence as reliable, His Honour does not expose his reasoning process as to how (s 17 Criminal Procedure Act), notwithstanding the warning, a guilty verdict was reached.
In respect of the question of identification His Honour is not seen in his judgment to have regard to weaknesses in the identification. His Honour failed to give himself the warning required by s 165(1)(c) Evidence Act, such requirement for a warning arising in consequence of the evidence that McManus was intoxicated and had suffered an injury to the head.
5. The Trial Judge did not consider the cases of the two appellants separately.
6. The Trial Judge failed to make any findings of fact as to the basis upon which he found Christian Blanchette guilty and, further, no explanation of the law upon which His Honour relied.
7. The Trial Judge failed to make adequate findings of fact as to the basis upon which he found Benjamin Blanchette guilt and, further, no explanation of the law upon which His Honour relied.
8. His Honour misunderstood the evidence of Benjamin Blanchette thereby causing the trial to miscarry. His Honour at p 22.4 of his judgment, having quoted part of the evidence of the appellant Benjamin Blanchette stated, in relation to the last question of the quotation, ‘And there was no answer given’. Contrary to His Honour’s understanding of the evidence the transcript records that the particular question was answered, ‘That is correct’.
9. The Wallet Containing $406.80
A. Evidence was given in the Crown case that nine weeks after the robberies, namely, on 7 March 1999 (Clean-up Australia day) Mr John McGinness found in Hyde Park a wallet containing $406.80 and items of identification belonging to Mr Hampsey. Unless the prosecution could prove beyond reasonable doubt that the money contained in this wallet did not belong to Mr Hampsey, the Crown case (which depended for conviction to a most significant, indeed vital degree on proving that the $400.00 located on the person of the appellant Benjamin Blanchette had been stolen from the wallet of Mr Hampsey) could not succeed.
B. His Honour failed to make any findings as to whether the wallet or the money therein (found on 7 March 1999) belonged to the victim Hampsey. Further, His Honour did not make any findings as to the contents of that wallet nor whether the money contained therein was the money the subject of the charge or not. This issue was fundamental and went directly to the issue of guilt.
C. His Honour failed to expose his reasoning process as to how (s 17 Criminal Procedure Act), notwithstanding the evidence of the wallet containing $406.80 having been found, a guilty verdict was reached. His Honour said only, ‘… the events of 7 March in Hyde Park must have been and have to be seriously considered’.
This evidence was evidence (or an hypothesis) ‘consistent with innocence.’ His Honour did not state how he ‘seriously considered’ the finding of the $406.80.
10. Fresh Evidence
The appellants have located, and obtained a statement from Mr John McGinness (finder of the wallet, referred to [in] 9 above, on 7 March 1999 during Clean-Up Australia Day).
Mr McGinness is able to give evidence which would call into question the correctness of the appellants’ convictions. There is a significant possibility, that His Honour acting reasonably, would have acquitted the appellants if the fresh evidence had been before him at the trial.
11. Election To Have Trial By Judge Alone
His Honour did not satisfy himself before the commencement of the trial that the appellants had sought and received advice in relation to the election to be tried by Judge alone (and thereby failed to comply with s 16 Criminal Procedure Act). The trial commenced on 9 November 2000 (T 9/11/00, p 1) and His Honour did not consider the question of satisfying himself as required by s 16(1)(b) Criminal Procedure Act, until the conclusion of the second day of the trial on 10/11/00, T 90.27 (after both alleged victims had given and completed their evidence).
12. Incompetence of Counsel
(i) The appellants were both charged with two counts of robbery in company pursuant to s 97(1) Crimes Act. The maximum penalty for an offence under s 97(1) Crimes Act is imprisonment for twenty years. The appellants were jointly represented at trial by Mr A Radojev who led Mr K Newell of counsel. Mr Radojev was absent from the trial during part of the prosecution case, the whole of the defence case and the whole of the Crown Final Address. At the conclusion of the Crown Final Address a short adjournment was granted to the defence to await the arrival of Mr Radojev who then made the Final Address on behalf of the appellants.
There was no daily transcripts of the evidence available to the defence during the trial, and there was no instructing solicitor or clerk present during the trial for the reason that counsel appeared on a direct access basis.
(ii) The trial of the appellants was set down to commence at 10.00am on Monday 6 November 2000. After Mention of the matter at approximately 9.30am, counsel and the appellants were at the Court awaiting the allocation of a Judge in order that the trial might commence. At approximately 2.30pm on Monday 6 November 2000, no Judge having been allocated, the trial was adjourned for hearing at 10.00am the following morning. When the appellants and defence counsel left Court shortly after 2.30pm on Monday 6 November 2000 they were unaware and had yet to be informed of the finding of the wallet in Hyde Park on 7 March 1999.
At approximately 4.00pm on Monday 6 November 2000 the Crown Prosecutor, Mr Govind, telephoned Mr Newell and informed him that the wallet had been found on 7 March 1999. This telephone call was the first occasion on which the defence learnt that the wallet and money had been found by Mr McGinness. Police witnesses gave evidence at the trial that they were unable to locate Mr McGinness.
Evidence from Mr McGinness would have been vital in the trial for the reason that the Crown case, by necessary implication, was that the purported finding of the wallet by Mr McGinness was arranged and manufactured by the defence.
The significance of the evidence that could be given by Mr McGinness was such that a fair trial could not be obtained until investigation by the defence as to the whereabouts of Mr McGinness and the circumstances of his finding the subject matter of the robbery. It was incompetent of counsel then appearing, in the circumstances, not to apply for an adjournment in order to locate Mr McGinness and consider calling him as a witness for the defence.
(iii) Counsel appearing for the appellants at the trial did not lead any evidence as to good character except that neither appellant had any convictions for criminal offences. There were numerous witnesses available to give direct evidence as to the character of both appellants, including that they were not the sort of persons who would commit the crimes alleged against them.
(iv) Counsel appearing for the appellants failed to raise as an issue during the prosecution case the unexplained failure of police to conduct a fingerprint examination of the money located on the person of the appellant, Mr Benjamin Blanchette, at the time of his arrest.
(v) Counsel appearing for the appellants failed to raise as an issue during the prosecution case the unexplained failure of police to retain and forensically examine (including fingerprint examination and otherwise) the wallet and the contents therein which was handed by Mr McGinness to Constable Gill on 7 March 1999 at Woolloomooloo Police Station.
(vi) Counsel appearing for the appellants failed to raise as an issue during the prosecution case the unexplained failure of police to notify the defence that the wallet and money had been found before the date for the commencement of the trial.
13. The verdict was unsafe and unsatisfactory.”

The Crown concessions

9 The appellants filed and served detailed written submissions in support of these grounds of appeal. While some of their criticisms are more powerful than others, it is not necessary to go to the detail of all of them, because the Crown has conceded that Grounds 1-4, 6-7 and 9B-C are made out and justify allowing the appeal. Because of those concessions, the Crown did not deal with Grounds 8, 9A and 10-12. It contended that there was no merit in Ground 5 or Ground 13.

10 The appellants contended that in these circumstances there should not be a new trial but that acquittals should be entered. The Crown sought orders for new trials. That issue is thus the sole remaining live issue before this Court: the Crown appeal against sentence obviously lapses.

11 On the appeal the appellants tendered without objection the following evidence not tendered at the trial: an affidavit of Peter Colin Proctor dated 27 September 2001 (the point of which was to annex a statement of John Michael McGinness dated 8 August 2001); an affidavit of Benjamin Ralph Blanchette dated 27 September 2001 (which set out facts relating to some of his criticisms of his lawyers and some character evidence); an affidavit of Christian Joshua Blanchette dated 27 September 2001 (which was to the same effect); and an affidavit of Kenneth Richard Newell dated 21 November 2001 but in fact filed on 2 November 2001 (he was one of the counsel who represented the appellants at the trial, and his affidavit, apart from justifying one of his decisions at the trial, went to prove in what way the Crown had put its case at the trial).

The parties’ submissions

12 The criticisms made by the appellants, except those which relate to Ground 13, the evidence of Mr McGinness and character evidence, largely go to matters which are independent of the substantive strength or weakness of the Crown case. They go to various alleged errors of the trial judge or counsel which, though some may be potentially important, are of an adjectival character only. The arguments thus centred on Ground 13 and the new evidence.

13 In chief the appellants submitted:

“It is submitted that having regard to the whole of the facts of the case his Honour’s verdict was unsafe and unsatisfactory. The appellants would respectfully refer inter alia to the following matters:
(i) The prosecution failed to conduct a fingerprint examination or any forensic examination of Mr Hampsey’s wallet handed to police by Mr McGinness on 7 March 1999, the wallet not having been retained as an exhibit;
(ii) The prosecution failed to conduct a fingerprint examination of the money located on the appellant Benjamin Blanchette at the time of his arrest.
(iii) Having regard to the condition of Mr McManus (intoxicated and suffering a head injury) at the time of his purported identification of the appellants, no attempt or request of the appellants to take part in a line up parade for the purpose of identification (or non-identification) by Mr Hampsey. Detective Heap considered that he had sufficient evidence of identification (an identification having been made by Mr McManus) and that he did not need further identification by Mr Hampsey. Detective [Heap] gave the following evidence at T.111.21 on 15/1/00:
Q. I suggest to you that the reason you didn’t ask Mr Hampsey on the evening to assist in identifying anybody was because he was too drunk to identify anybody?
A. No, the reason that I did not hash [sic] the idea, because it is a very important point, in every investigation was because I was very confident of the identification I already had and the evidence I had was very strong.’ [Emphasis added]
It is submitted that the identification was not a matter for Detective Heap to consider that he had sufficient evidence to satisfy him – it was a matter for determination by the jury (in this case by His Honour).
Transcending all other matters favouring the appellants in the trial is the evidence of the wallet being found by Mr McGinness on 7 March 1999. We might remind Your Honours that the Crown case in relation to the finding of the wallet was never put to Christian Blanchette (see submissions in relation to Ground 12(ii) above) and the only cross-examination of Benjamin Blanchette in accordance with the principles in Browne v Dunn was that quoted in those submissions.
It is submitted that there can be no doubt that the wallet and contents thereof found by Mr McGinness on 7 March 1999, were the property of Mr Hampsey – the wallet contained amongst other things, Mr Hampsey’s driver’s licence, credit cards etc. In Mr Hampsey’s evidence in chief he gave the following evidence at T.9.01 on 10/11/00:
Q. Was it indeed your wallet?
A. My mother said it was my wallet.
Q. Would she know your wallet?
A. Yes she would.
Q. Was there any money in it?
A. Yes there was money in the wallet.
Q. $400?
A. Yes.
Q. Were they crisp notes?
A. I don’t – the notes my Mum said that they looked slightly aged as did the rest of the wallet.’
The defence submission is this: Clearly if the money in the wallet handed to Constable Gill on 7 March 1999 is the money that was in Hampsey’s wallet when he was robbed, then the appellants are not guilty – indeed it was essential for the Crown to prove beyond reasonable doubt that the money found in the wallet was not that of Hampsey (and, we might add, essential for His Honour to so find before he could move to conviction.)

It is submitted that if the Court admits into evidence on the appeal the fresh evidence of Mr McGinness, the Crown is unable to eliminate the reasonable possibility that the two appellants are innocent. The verdict of the Trial Judge, it is submitted, must then, with respect, be unsafe and unsatisfactory and a verdict of acquittal should be entered.”

14 The Crown submitted:

“The appellant submits that the verdict was unreasonable and not supported by the evidence. The appellant points to a number of deficiencies in the investigation. The respondent acknowledges that fingerprint examination was not conducted on either the notes found in the pocket of the appellant Benjamin Blanchette or on the notes/wallet found by Mr McGinness. It is also acknowledged that police did not conduct an identification parade and that Mr Hampsey did not identify either appellant. As a consequence the defence were and will be (should a re-trial be ordered) entitled to submit to the jury that the Crown had failed to establish any physical link between Mr Hampsey and the notes found in the pocket of the appellant Benjamin Blanchette. Further, it can be submitted that Mr Hampsey has not identified either appellant.

Whilst the appellants’ position was unlikely to have been improved by appropriate identification and fingerprinting procedures, this may not have been the position in regard to the fingerprinting of the notes within the wallet. Fingerprinting of these notes could theoretically have established a link between them and Mr Hampsey. Had Mr Hampsey’s fingerprints been found on the notes within the wallet that would have absolutely discounted the notes found in the pocket of the appellant Benjamin Blanchette as being proceeds of the robbery. However, there is no guarantee that fingerprint testing on any notes would have produced positive findings. In any event, a lost opportunity such as this does not, of itself, generally provide a basis for a conclusion that the verdict was unreasonable and not supported by the evidence.
The respondent submits that the real task is to determine the extent and quality of the evidence available to the trial Judge. This Court must assess whether in all the circumstances of the case the verdict was reasonable and supported by appropriate evidence.
The essence of the Crown case is the evidence provided by Mr McManus. If Mr McManus is accepted as a witness of truth and reliability, his evidence establishes that he chased the appellants and an unknown third person through Hyde Park, down Bathurst Street and into Castlereagh Street. His evidence was that he lost sight of them for but a few seconds at most after they turned into Castlereagh Street.
Considerable support is found for Mr McManus in the evidence of Sergeant Rutherford and chief Inspector Sutton. These Officers gave evidence that they saw the appellants running in Bathurst (between Elizabeth and Castlereagh Streets – heading west) and Castlereagh Streets with Mr McManus running behind, pointing to the appellants and shouting to police to ‘Stop them’ (the appellants). Neither Officer saw anyone else in the immediate vicinity. Each Officer maintained that he did not lose sight of the three men from the time of their first observation in Bathurst Street until they stopped the appellants in Castlereagh Street.
Detective Senior Constables Albury and Heap arrived on the scene in Castlereagh Street soon after the appellants had been stopped. Each of these Officers noted that the appellants and Mr McManus were breathing heavily and sweating.
The case against the appellant Christian Blanchette also includes an ERISP conducted by Detective Senior Constable Albury. In this interview, Christian Blanchette said that they had been at McDonald’s near the Globe Hotel in Park Street and he seemed to suggest that he and his brother were accosted by Mr McManus in Elizabeth Street, that they ran down Bathurst Street and into Castlereagh Street to avoid him.
In his evidence at trial Christian Blanchette states that he and his brother ate at McDonalds on corner Liverpool and George Streets, that they went north up George Street, east in Wilmot Lane, north in Pitt Street, east in Bathurst Street and then south in Castlereagh Street. This version is inconsistent with his ERISP, with Mc McManus and with Chief Inspector Sutton and Sgt. Rutherford.
Benjamin Blanchette did not participate in an ERISP. At trial he stated that he and his brother ate at McDonalds adjacent to Planet Hollywood in George Street. He then detailed the some route to Castlereagh Street as outlined in the preceding paragraph. As stated this was inconsistent with Mr McManus and Officers Sutton and Rutherford.
The strength of the Crown case is found in the circumstantial evidence of Mr McManus and Officers Sutton and Rutherford. Taken together and if accepted this evidence is capable of establishing a continuity of circumstances from robbery to detention in Castlereagh Street which clearly proves the involvement of these appellants. The Crown does not have to prove that the $400-00, found in the pocket of Benjamin Blanchette, was the $400 taken from Mr Hampsey. The evidence of panic and flight after the robbery provides evidence that is capable of supporting the inference that the stolen wallet was either thrown away or dropped during flight. This would explain its location in the park if the jury accepts that the wallet remained undetected in the park for three months before its location by Mr McGinness.
The offence committed against the victims was serious and the evidence is capable of establishing all the essential elements of the charged offence. A re-trial will allow the ‘fresh evidence’ to be called and tested.”

15 The appellants submitted in reply:

“The defence concedes that if the Crown chose to put its case on the alternative basis outlined in the submissions, technically there is evidence that could if accepted by the jury) establish the charges. But, it is submitted, there is such an inconsistency in this approach when put to a jury, that any prosecution would fail. No jury, it is submitted, would accept a Crown case based upon two such alternative, competing and completely inconsistent bases.
It would seem that the Crown would propose to put the case before the jury that the appellants committed the robbery and were subsequently arrested with the proceeds of the robbery in their possession. But it would be put to the jury that if the jury did not accept that they were in possession of the proceeds of the robbery, and the money in their possession was honestly obtained, the jury would alternatively be satisfied that the appellants were guilty on the basis of the other evidence in the case.
It is submitted that what the Crown proposes to do if there is a new trial is ‘to make a new case which was not made at the first trial’ (per Dawson J in R v King (1986) 161 CLR 423 at 433).
We refer to the evidence given in the trial generally and to the affidavit of Mr Newell, counsel appearing for the appellants at the trial, sworn 2 November 2001 and filed herein. It is clear from a reading of the evidence in the trial (and as a convenient summary, the affidavit of Mr Newell filed herein) that the Crown case at the trial was that the eight $50.00 notes the subject of the robbery allegations made against the two appellants were the very notes in their possession when arrested.
Furthermore, it would appear from the Crown’s submissions in this appeal (see page 9) that the Crown would propose at a second trial to attack Benjamin Blanchette and Christian Blanchette again in cross-examination in relation to their explanation for their possession of the eight $50.00 notes, and again to lead evidence from Mr Tenison as to the unlikelihood of their obtaining $300.00 in ‘crisp, new’ $50.00 notes from the EFTPOS at the hotel at Liverpool – no doubt also alleging in a second trial that Benjamin Blanchette ‘prevaricated’ for a period before finally answering questions about his need for the money (see Crown submissions in relation to Ground 8).
That is, the Crown, it seems, will attack the appellants on the matters which establish the link between the presence of the eight $50.00 notes on the person of Benjamin Blanchette and the means by which he obtained that money – and after all that, putting to the jury ‘even if you believe them in relation to their possession of the sum of the eight $50.00 notes, it is still, as an alternative, open to you to convict on the balance of the evidence’.
It would be put further: ‘the Crown alleges they stole this money, these eight $50.00 notes which are shown in the police photographs in evidence, but if you are not satisfied that they did, the Crown says they stole other money being eight different $50.00 bank notes’. With respect, it can be readily seen why the Crown prosecutor at the first trial, did not put the Crown case on this alternative basis.
(The Crown would, it is submitted, be seeking in a re-trial to obtain a conviction not only upon a basis different from that of the first trial, but in relation to property different from that alleged in the indictment. The Crown would, in that event, it is submitted, necessarily need to seek amendment of the indictment.)

16 The appellants relied on the following authorities. In King v R (1986) 161 CLR 423 at 433.5-.6 Dawson J said:

“It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes [(1948) 77 CLR 511 at 518].”
In the same case Murphy J said at 426.8-427.5:
“Under s 8(1) of the Criminal Appeal Act 1912 (NSW), a new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make.
A new trial is not the inevitable result of a successful appeal against conviction. The onus rests squarely with the prosecution to show the court that a new trial is the most appropriate remedy. In Cheatley v The Queen [[1981] Tas SR 123 at 137-138], the correct approach is clearly spelled out by Everett J:
‘My conclusion is that there is no presumption in favour of a second trial being ordered when an appeal succeeds, and that the discretion of the court must be exercised on a consideration of all the relevant facts and circumstances. The accused should be accorded neither more nor less personal consideration than the overall justice of the case requires in recognition of the public interest in the fair and impartial administration of criminal justice. I do not accept the counter argument on behalf of the prosecution that ‘the ordinary course should apply’. I do not consider, for reasons I have expressed, that there should be any ‘ordinary’ course. Each case is individual and should be determined on the basis of the facts and all relevant considerations which apply to it – not to a different case. It is a negation of the wide discretion vested by statute in the Tasmanian Court of Criminal Appeal to suppose that a common mould exists and that all cases should be judged within its framework.’
(Section 404(1) of the Criminal Code (Tas) is in substantially similar terms to s 8(1) of the Criminal Appeal Act (NSW).)
Where there was insufficient evidence at the original trial to warrant a conviction or if the evidence that will be available at any new trial is insufficient then it would be contrary to the interests of justice to order a new trial. The appellant is entitled to an acquittal as of right.”

In R v Jiminez (1992) 173 CLR 572 at 590 McHugh J said:
“But the sufficiency of evidence to support the charge is not the only factor to be considered. Other factors lead to the conclusion that, despite there being evidence which, if accepted, would make out a charge of culpable driving, a new trial should not be ordered. First, as a general rule, a new trial should not be ordered to enable the Crown to make a new case at a second trial [R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433]. In the present case, a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial. Secondly, the events which gave rise to the charge occurred nearly four years ago, and it is nearly two years since the applicant was convicted. Thirdly, the applicant was sentenced to six months imprisonment to be served by way of periodic detention. Prior to being granted bail pending his appeal to the Court of Criminal Appeal, the applicant served four weekends in gaol pursuant to the order of the learned trial judge. Fourthly, the Crown has always accepted that the accident which gave rise to the charge of culpable driving arose only from the applicant’s falling asleep. The Crown has not suggested that speed or alcohol played any part in the car leaving the road. When all the circumstances are taken into account, the interests of justice do not require that the applicant should be put to the expense, stress and inconvenience of a new trial so that the Crown can put a case which it did not put at the first trial. The general rule that a new trial will be ordered so that the Crown can put a different case at a second trial must prevail.”

The appellants also referred to R v Murrell [2001] NSWCCA 179 at [23].

17 A useful authority not referred to is Lord Diplock’s advice in Reid v R [1980] AC 343 at 349-350:

“Their Lordships have already indicated in disposing of the instant appeal that the interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice and not escape it merely became of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury. Save in circumstances so exceptional that their Lordships cannot readily envisage them it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant. At the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso to section 14(1) and dismiss the appeal instead of incurring the expense and inconvenience to witnesses and jurors which would be involved in another trial.
In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor: so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.
The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration but, except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case … .”

Mr Andersen QC who appeared with Mr Heathcote on behalf of the appellants supplemented their written submissions and put, with respect, powerful and helpful arguments in support of the points made.

Orders

18 The Crown could attempt to prove a case that the appellants robbed the victims and that the money found in the possession of Benjamin Blanchette was Mr Hampsey’s money. Alternatively, the Crown could attempt to prove a case that the appellants robbed the victims, and that case could be made out through the eye-witness evidence of the victims and the police officers even if the Crown failed to prove that the money found on Benjamin Blanchette was Mr Hampsey’s money.

19 The appellants’ submission that there is an inconsistency in these approaches is invalid. They are not “alternative, competing and completely inconsistent”. The former way of putting the case includes the latter, but adds something. If the Crown could establish that the money found on Benjamin Blanchette was Mr Hampsey’s, that would powerfully confirm the evidence of Mr McManus. But failure by the Crown to establish that the money found on Benjamin Blanchette does not necessarily mean that the trier of fact will or ought to reject the evidence of Mr McManus and other prosecution witnesses.

20 The appellants’ submission that the Crown proposes to make a new case which was not made at the first trial has only technical force, but no substantive merit. Even if the Crown at the trial only put its case one way – at its highest, without falling back on any other position – that would not have prevented the trial judge from rejecting that case but accepting the lesser case now pointed to. The Crown is not seeking to make a contradictory case or a case on new and different evidence.

21 The appellants’ submission that the Crown will argue either that the appellants robbed Mr Hampsey of $400, or attacked the victims but had in their possession $400 stolen from someone else, is invalid. The appellants are not charged with stealing $400 from anyone else. They are charged with robbing $40 from McMcManus and $400 from Mr Hampsey. Evidence directed only to proving some dishonest acquisition of money from persons other than Mr Hampsey or Mr McManus would be inadmissible. The Crown case, whichever of the two ways it might be put, would fail unless it could convince the trier of fact beyond a reasonable doubt that $40 and $400 were removed from the victims, even if one or both of the appellants only retained possession of the money for a short time. Even if Mr McGinness found the wallet as he says he did, it is possible, and a trier of fact could be satisfied beyond a reasonable doubt, that Mr Hampsey’s wallet was removed from him as he lay on the ground, but that the taker then threw it away or dropped it when Mr McManus gave chase, and that it was later found by Mr McGinness.

22 It must be borne in mind that a decision by this Court to refuse to order acquittals and to order a new trial does not mean that there will in fact be a new trial. That is a matter for the Crown authorities to consider.

23 The factors favourable to the appellants’ contention that there should be no new trial and that this Court should order acquittals are as follows. The events in issue took place nearly three years ago. The sentences have been partly served. A new trial will add to the stresses which the appellants have already been subjected to. Most of the defects in the first trial arose for reasons other than the conduct of the appellants personally, and to the extent that it is not clear that all did, an assumption in favour of the appellants should be made. The existence of Mr McGinness’ evidence improves the prospect that a second trial could result in acquittals because the alternative Crown case is a weaker case than the higher Crown case. The character evidence which the appellants say they now wish to rely on may also have utility in the direction of achieving acquittals

24 The factors favourable to the Crown’s position are as follows. The crime is a serious one. Its prevalence is widespread. The first trial miscarried through technical mistakes. Though it lasted six days, it was not prolonged or complex. It cannot be said that the evidence adduced at the trial was insufficient to justify conviction by the trial judge if he had complied with the procedural requirements of the trial, if he had properly directed himself, and if he had properly expressed himself. The Crown is not seeking to cure evidential deficiencies by obtaining a second run with better evidence. While the Crown case rests on identification evidence, and while identification evidence requires very careful handling, in this case the type of evidence relied on has fewer infirmities than in other types of case because of the contemporaneity of the assault, the chase and the apprehensions. The Crown case cannot be said to be weak. That conclusion stands even if one does not take into account various inconsistencies within and between the evidence of the appellants. Even if Mr McGinness’ evidence is accepted at its highest, the second trial could well result in convictions not resting on any miscarriage of justice. And the Crown may consider that a rigorous testing of Mr McGinness’ evidence is called for. At all events, it is better that the force and significance of his evidence, together with any additional evidence which the appellants wish to call, be tested in a trial than used by this Court as a ground for depriving the Crown and the public of any satisfactory trial. There is no reason to suppose that the responsibility for the unsatisfactory nature of the first trial is to be laid at the door of the Crown any more than it is to be laid at the door of the appellants.

25 The following orders are proposed.

1. The appeal of Benjamin Ralph Blanchette is allowed and his convictions are quashed.

2. The appeal of Christian Joshua Blanchette is allowed and his convictions are quashed.

3. The appeal of the Crown is dismissed.

4. A new trial of Benjamin Ralph Blanchette and Christian Joshua Blanchette is ordered.

26 DOWD J: I agree.

27 BELL J: I also agree.

Those are the orders of the Court.

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