R v Blewitt

[1988] HCA 43

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Dawson and Toohey JJ.

TERRENCE LEIGH BLEWITT v. THE QUEEN

26 August 1988

Decision

MASON C.J., WILSON, BRENNAN, DAWSON AND TOOHEY JJ.: This is an application for special leave to appeal from an order of the Court of Criminal Appeal of New South Wales dismissing the applicant's appeal against convictions for (1) maliciously wounding with intent to do grievous bodily harm, (2) armed robbery and wounding, and (3) three offences of stealing motor vehicles, for which he was sentenced in all to 18 years penal servitude, with a non-parole period of 13 years.

2. The offences of which the applicant was convicted related to the armed robbery of an Armaguard van carrying approximately $253,000 in cash whilst parked in the shopping centre at Oaks Avenue at Dee Why between 4.00 p.m. and 4.45 p.m. on Friday, 8 February 1985. The robbery was carried out by a gang of three men, it being alleged that the applicant was one of them, in the course of which a security guard, Joseph Jirman, was shot and wounded. The gang used a stolen Ford car from which they launched their attack on the Armaguard van. Having wounded the security guard, they boarded the Armaguard van and drove it to a nearby block of flats in Clyde Road where two of the men were seen carrying the contents of the van to a Toyota station wagon. The station wagon was abandoned a little later in Pine Avenue, Brookvale, near Warringah Road. It contained two shotguns, a pistol stolen from the security guard and an unopened cash box taken from the Armaguard van. The Ford car, the van and the station wagon were the vehicles involved in the offences mentioned in (3) above.

3. At the trial, the Crown called various witnesses who saw the robbery, the van in the course of its journey to Clyde Road and at Clyde Road, the station wagon on its way to Clyde Road and shortly after on its way to Pine Avenue, and its abandonment in that street at about 4.30 p.m. where two men were seen leaving the vehicle, one of whom was proceeding in the direction of Warringah Road.

4. The central issue at the trial related to the identification of the three accused as the persons who participated in the robbery. The applicant's defence was that he did not participate in the incident in any way. He raised an alibi, asserting that at 4.00 p.m. on the afternoon in question he had run from his flat in Pacific Parade in Dee Why, which was one block distant from the scene of the robbery, to the premises of one Norris at 16 Sydenham Road, Brookvale, arriving there at about 4.15 p.m. According to the applicant, whose statement was supported by the evidence of Norris, he left Norris' premises just before 5.00 p.m. The applicant said that he arrived back at his flat at about 5.15 p.m. and left for Penrith to see his brother, H.J. Blewitt, at 6.00 p.m.

5. In its case against the applicant, the Crown relied on the evidence of a number of witnesses to the events just described. The most telling evidence against the applicant was that given by Inspector McIntosh who lived at 21 Warringah Road, Dee Why. He saw a man enter his (McIntosh's) backyard, run through the adjacent premises and down Warringah Road. Inspector McIntosh unsuccessfully gave chase, observing the runner attempting to remove his tracksuit pants, revealing that he was wearing blue running shorts with a white stripe. Running shorts, generally answering this description, were subsequently found in a room occupied by the applicant in a hotel at West Ryde. The applicant was staying at the hotel under the name "Ron Bray" at the time of his arrest. Inspector McIntosh identified these shorts as the shorts worn by the man whom he chased. He later identified the applicant from a photograph as the man he chased. The photograph depicted five people running in a triathlon.

6. The applicant contends that his convictions should be set aside as unsafe and unsatisfactory on grounds that warrant the grant of special leave to appeal. His first step in attempting to make out that case is to submit that the evidence of identification, especially that of Inspector McIntosh, was unsatisfactory and unreliable. Indeed the applicant submits that McIntosh's evidence was so unreliable as to require rejection or corroboration. Alternatively, the applicant submits that the trial judge was in error in failing to instruct the jury that McIntosh's identification was defective in certain respects. The short answer to this aspect of the applicant's case is that the trial judge was neither asked to withdraw McIntosh's evidence from the consideration of the jury nor to direct them that it required corroboration. Nor, having regard to the nature of that evidence and its relationship to other evidence in the Crown case, would it have been proper for the trial judge to take either of these courses. His directions on the issue of identification contained no error in law and adequately alerted the jury to the possible weaknesses of the evidence on that issue. His Honour was under no duty to inform the jury of his own view of the weaknesses in that evidence. It was for him to ensure that the jury gave consideration to the relevant issues of fact, after taking into account the possible weaknesses that might be inherent in the evidence that had been presented and assessing that evidence for what they thought it was worth.

7. The applicant then submits that the trial judge erred in allowing evidence to be given of a prior inconsistent statement signed by the applicant's brother, A.D. Blewitt. The statement contained the sentence that the applicant had said to his brother "I was involved at Dee Why". The trial judge permitted the prosecutor to cross-examine A.D. Blewitt on the ground that he was a hostile witness. The witness admitted that he had signed the statement but denied that he read it or stated to the police what the statement contained. At the trial, the Crown acknowledged that the sentence "I was involved at Dee Why" was inadmissible to prove facts against the applicant. The applicant contends that nonetheless the statement was extremely prejudicial and that its prejudicial effect was not removed by the direction given by the trial judge at the time the evidence of the prior inconsistent statement was received and repeated in the summing up. The applicant submits in any event that the direction was not as forthright as it should have been. But this aspect of the submission may be put aside as there was no application for a re-direction on either occasion.

8. The crux of the applicant's submission is that the prosecutor knew that A.D. Blewitt was a hostile witness, at least from the time he gave evidence on the voir dire, and that the only reason or purpose for calling him was to place the prejudicial prior inconsistent statement before the jury. It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice: see The Queen v. Thompson (1964) QWN 25; The Queen v. Hall (1986) 1 QdR. 462, at pp 465-466.

9. Here, however, there is no substance in the suggestion that this was the sole purpose why the Crown called A.D. Blewitt. What the prosecutor sought to prove through that witness was that, immediately after the robbery of 8 February 1985, the applicant went into hiding. A.D. Blewitt gave evidence that 8 February was the applicant's birthday and that a celebratory dinner at a Greek restaurant in town was planned for that evening. Between 6.00 p.m. and 6.30 p.m. the applicant rang A.D. Blewitt and told him that the dinner would be cancelled and asked him to ring the other guests to tell them of the cancellation. On 10 February, A.D. Blewitt was at work when the applicant rang him at about 9.30 a.m. but did not say where he was ringing from. The applicant asked A.D. Blewitt to say, if any stranger should enquire, that the applicant was in Picton. Later, the applicant rang again and asked A.D. Blewitt to meet him that afternoon "where we ride towards West Head near the park" and they met accordingly. During that meeting the applicant asked A.D. Blewitt to check on the applicant's budgerigar and to see if the bird had enough seed. During the following week the applicant rang A.D. Blewitt at home on a few occasions and asked him to obtain some clothes from the applicant's flat.

10. On the following Sunday, 17 February, as a result of a request by a mutual friend, the applicant and A.D. Blewitt again met at a car park at the West Ryde Shopping Centre. The clothes which A.D. Blewitt had obtained were handed over to the applicant. On 20 February A.D. Blewitt gave a statement to the police. He signed a statement, part of which he subsequently repudiated in evidence. According to the written statement, the applicant told A.D. Blewitt on 17 February that he "was involved at Dee Why". When A.D. Blewitt gave evidence at the trial, however, he said that the reason given to him by the applicant for going into hiding was that somebody from the racetrack where the applicant worked was after him. When A.D. Blewitt gave that evidence the prosecutor obtained leave to cross-examine him as a hostile witness, the cross-examination being based on the statement that he had made to the police on 20 February 1985.

11. The evidence of A.D. Blewitt that the applicant went into hiding was properly called as part of the Crown case and it was inevitable that the witness should be asked for the reason assigned by the applicant for going into hiding. The explanation offered in evidence by A.D. Blewitt at the trial, though inconsistent with his statement to the police, corresponded with the explanation subsequently given by the applicant in an unsworn statement. The two brothers had admittedly and understandably discussed the case before the trial commenced. It was entirely appropriate to allow cross-examination of A.D. Blewitt based on the statement he had earlier given to the police. This was not a case in which the witness was called merely in order to place before the jury the contents of what would otherwise be an inadmissible out-of-court statement. The evidence which A.D. Blewitt was called to give was evidence that his brother went into hiding. The explanation for going into hiding followed from that. The Crown was bound to call the brother to prove that the applicant went into hiding and to ask the question whether any explanation was given for it.

12. The final matter to be mentioned is the applicant's submission that the Crown should not have been permitted to give evidence in reply in rebuttal of the applicant's alibi. Relying upon s.405A(4) of the Crimes Act 1900 (N.S.W.), the trial judge permitted the prosecutor to call Constable Bolton to give evidence that he was a triathlete, like the applicant, and that he had run from Pine Avenue where Inspector McIntosh had chased the man he identified as the applicant, to the premises at 16 Sydenham Road, Brookvale in 6 minutes 8 seconds, the distance being 1.8 kilometres. The evidence demonstrated that the applicant, after being chased by McIntosh, could, within minutes, have been at Norris' premises. The evidence suggested that Norris may have been incorrect when he said that the applicant arrived at his premises at 4.15 p.m. and did not depart until just before 5.00 p.m.

13. Section 405A(4) provides:

"Any evidence tendered to disprove an alibi may, subject to any direction by the Court, be given before or after evidence is given in support of the alibi."

Plainly enough this section alters the old common law rule that a judge should not permit the Crown to adduce evidence after the accused has closed his case for the purpose of rebutting an alibi which the Crown should reasonably have foreseen would be raised at the trial: see Killick v. The Queen (1981) 147 CLR 565. But it may well be that, notwithstanding s.405A(4), there are some situations in which the giving of evidence of a rebuttal of an alibi in reply will so unfairly prejudice an accused as to amount to a miscarriage of justice.

14. In the present case it is not entirely clear that Constable Bolton's evidence was in rebuttal of the alibi though we are inclined to think that it did have that character. It is, however, possible that the evidence did no more than indicate the time it would have taken an experienced runner to run the distance between the two places. To that extent it may have merely resolved a question in the minds of the jury. Be this as it may, the Court of Criminal Appeal concluded that Constable Bolton's evidence in reply did not prejudice the applicant or constitute a miscarriage of justice. We are not persuaded that this conclusion is incorrect.

15. For the foregoing reasons the applicant has not made out any point which would warrant the grant of special leave to appeal.

16. The application for special leave to appeal is therefore refused.

Orders

Application for special leave to appeal refused.