Blanchette v The Queen S127/2002 [2002] HCATrans 547 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S127 of 2002

B e t w e e n -

BENJAMIN RALPH BLANCHETTE

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S128 of 2002

B e t w e e n -

CHRISTIAN JOSHUA BLANCHETTE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 2.29 PM

Copyright in the High Court of Australia

__________________

MR G.R. HEATHCOTE: If the Court pleases, I appear for the applicants in this matter. (instructed by Proctor & Associates)

MR R.D. ELLIS: If the Court pleases, I appear for the respondent Crown in this matter. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Heathcote.

MR HEATHCOTE: Your Honours, the principle established in the decision of King v The Queen, which is one of the decisions that have been supplied to your Honours, in the judgment of Justice Dawson is that where an appellate court sets aside a conviction a new trial should not be ordered where the Crown would be given an opportunity to make a new case which was not made at the first trial.

Your Honours, if I could conveniently take you to page 75 of the application book, paragraphs 3.4 and 3.5 of the respondent's submissions, your Honours will see that that is what has happened here and the decision of the Court of Criminal Appeal to order a retrial permits a new case to be made at the proposed retrial. Paragraph 3.4 is an acknowledgement that in the trial before his Honour Judge Flannery, the prosecution case was that the $400 found in the possession of the applicant Benjamin Blanchette was the money stolen from Mr Hampsey's wallet. We have referred to that of course as the Castlereagh Street money in the summary of argument for the applicant, your Honours.

It was on this basis, this Castlereagh Street money basis, that the first trial was run; the whole of the first trial, both Crown and defence cases. Your Honours will see in paragraph 3.5 of the respondent's submissions that:

On the proposed retrial the prosecution accepts that the $400.00 -

which it had previously alleged was the subject of the robbery -

was not the money taken from Mr Hampsey.

That is, it was not the subject of the robbery. We have referred to that money as the Hyde Park money.

McHUGH J: Yes, but the charge against your client is one of robbery.

MR HEATHCOTE: That is right, your Honour.

McHUGH J: It is only a question of evidence. King establishes nothing. After all, it was a refusal of a special leave application. A decision of a special leave matter decides nothing.

MR HEATHCOTE: The principles were stated there, your Honour, and perhaps restated in a case that your Honours have not been referred to but I note that both your Honours were part of the decision in Parker v The Queen. I do have copies of that decision, if your Honours - - -

McHUGH J: This is a different case altogether. In King there was an attempt to supplement a case which had proved to be defective. This case did not prove to be defective. Your client has now raised a point the Crown says, "Well, it doesn't matter." The Crown says, "Well, we don't have to rely on one piece of evidence. We can succeed without relying on that piece of evidence".

MR HEATHCOTE: Your Honour, if I can just go back a step. Had the first trial been conducted on an alternate basis, what your Honour says, with respect, is correct, but the Crown in this particular case nailed their colours to the mast of the Castlereagh Street money and in fact attempted to discredit the Hyde Park money which the applicants in their defence at the first trial were raising as part of their defence. The applicant, Benjamin Blanchette, was cross-examined and if I can take your Honours to that cross-examination. It is recorded in pages 64 and 65 of the application book. Your Honours will see at paragraph 2.7 of the applicant's summary of argument at page 64 of the application book the Crown challenged the explanation of Benjamin Blanchette for his possession of that $400. It was not just a sum of $400. There were photographs of the particular sum of $400 which was alleged to be the subject money of the robbery - - -

McHUGH J: Mr Heathcote, nothing is said in King's Case that raises any question of law. Not everything in the Law Reports is law. It is a particular way that the discretion in that case should be exercised. It cannot lay down any rule of law. You cannot hamper a court's discretion. This Court looked at the facts and decided to order a new trial.

MR HEATHCOTE: The principle, with respect, your Honour, is - - -

McHUGH J: There is no principle. That is the point. It is a complete mistake to think that there is a principle. It is just a factual approach. We get this sort of argument all the time from people in income tax cases and patent cases and other cases. They think everything in the Law Reports is determinative of a decision is a question of law. It is not.

MR HEATHCOTE: Your Honours, with respect, the goalposts - the case which the applicants came to me to the first trial was in respect of the case which the Crown presented. The case which the Crown presented was very clearly and very competently put, and it was the eight $50 notes, four of which were in consecutive serial number order, all of which - - -

McHUGH J: Yes, but your client got a new trial on a question of, among other things, onus of proof.

MR HEATHCOTE: That is correct. There is no doubt that the trial was set aside on a basis other than, if I can call it the "so-called merits", but when the Court of Criminal Appeal came to determine our application for an acquittal based on, amongst other things, that the verdict was unsafe and unsatisfactory the Court of Criminal Appeal erred, with respect. His Honour Mr Justice Heydon considered the alternate cases, if I can put it this way, of the Hyde Park money which was never part of the case that was run against the applicants at that first trial. The case that was run at the first trial was clearly the Castlereagh Street money. The Crown accepts that that was not stolen on the case that was run at the first trial. Given that acceptance - - -

McHUGH J: I am not sure that is right, is it? Does the Crown accept that?

MR HEATHCOTE: It is in paragraph 3.5 of their submissions, your Honours:

On the proposed retrial the prosecution accepts that the $400.00 found on Benjamin Blanchette was not the money taken from Mr Hampsey.

The motive alleged at the first trial was that they were broke; it was put in the vernacular in cross-examination by the learned Crown Prosecutor and - - -

KIRBY J: Did your client produce any evidence supporting the drawing of the money from the - - -

MR HEATHCOTE: Yes, he did, your Honour.

KIRBY J: He did?

MR HEATHCOTE: He presented evidence that he had withdrawn $100 - - -

KIRBY J: Yes, but did he present bank evidence or objective evidence?

MR HEATHCOTE: He presented bank evidence, yes, bank statements. He explained it away. The Crown discredited his application. It was suggested to him that he had gambled it away.

KIRBY J: But surely bank evidence would be available that at a certain afternoon at a certain time $400 was withdrawn.

MR HEATHCOTE: There were four separate transactions on the day preceding the alleged robbery, your Honour. There was $100 withdrawn from an ATM at Camden or Picton. There were three separate EFTPOS withdrawals at a hotel at Liverpool around about midnight on the night in question; a total of $400 which the applicant said was the $400 in his pocket at the time of his arrest.

KIRBY J: So he was drawing the amounts out and not spending them, although he was drawing them in smaller - - -

MR HEATHCOTE: He was withdrawing the money. He was intending to go away on holidays the next day. His evidence at the trial, your Honour, was that there was a hotel-imposed limit on the amount that would be given at any one time, and he went up for $100, waited a few minutes, went back for another $100 and then again for a third $100 making the total, with the earlier withdrawal, $400. The Crown put to him that he was broke at the time of the robbery. It was suggested to him that he had gambled the money away on poker machines at the hotel. What in effect was put at the trial in cross-examination was, "You got $100, put that through the poker machines, went and got another $100, put that through", et cetera, "and went into the city" and, as was put at line 38 of the application book, page 64 - just before that - it was put that they were both broke at the time. He denied that.

Q. And the reason why you left the car and started walking around the city was to look for someone?

A. I deny that strongly.

Q. That you could get money off?

So it was put that it was a premeditated robbery. He denied that. It was also put, as I have already submitted to your Honours, that the attempt by the Crown to discredit this finding of money by a Mr McGinness, who was not called. The prosecution said they could not find him at the time of that first trial, and he was made out, if I can say this with respect, to be a bit of a phantom. It was put to the applicant Benjamin Blanchette:

Q. Did you hear of any John McGuinness [sic]?

And his answer, as recorded at page 65 of the application book at line 10 or 11:

A. I have never heard. The first time I heard the name John McGuinness [sic] was in this Courthouse.

Q. So did you have anything to do with the return of $400 in a wallet to Kings Cross police station?

A. I don't know what you are talking about.

That is the Hyde Park money. That is the money that the Crown now proposes to try these two men upon if a retrial is ordered. It is quite different, your Honours. It is a case where in effect the Crown says, "We accept you're innocent upon the basis upon which we ran the first trial - - -

McHUGH J: No, they do not accept your innocence. They said, "We don't now rely on that evidence." They rely on identification evidence, they rely on apprehension.

MR HEATHCOTE: Yes, but they relied on the subject money. Grant's Case made it clear how important it is. When one mentions $400 of course the reaction is, "One lot of $400 is as good as the next lot, and he's stolen $400, it doesn't matter which", but they particularised it as the Castlereagh Street money including the four consecutive serial numbers.

KIRBY J: Let me understand. Is your suggestion that behind cases such as King v The Queen lies a variation on the double jeopardy principle - - -

MR HEATHCOTE: Certainly.

KIRBY J: Persons who have been put up for trial on a particular basis, which trial has miscarried, should not be subjected to a second trial on a different basis, though on the same charge, giving the Crown in a sense two bites of the cherry because of the fact that an error has happened in the first trial, to recast its accusation.

MR HEATHCOTE: That is precisely what I was attempting to put, your Honour. What can happen, the case of Serratore, which was another case that I relied upon - to take up the presiding judge's point - the Crown can, as Serratore held, run its case on alternate and even inconsistent bases. The principle that your Honour has just articulated in that passage between us is that once they have run their case at a first trial on a particular basis they cannot be given an opportunity to - - -

KIRBY J: In effect your client says to the Court, "Why should I be subjected to a second and different trial, albeit on the same accusation but effectively on a different evidentiary basis, when it is accepted that I was put on trial and on that basis that trial miscarried because of the fact that the judge gave incorrect directions?".

MR HEATHCOTE: That is part of it, yes, your Honour. What the Crown now has, having - - -

KIRBY J: But the argument against that is that the accusation remains fundamentally the same, namely robbery, and that the evidentiary foundation is all that has changed.

MR HEATHCOTE: Yes, but it is the subject matter. It is not just a mere matter of evidence. It is the very subject matter. The serial numbers of the notes were an important factor in the last trial. The trial judge - and this is a matter that I can take your Honours to - at page 18 of the application book, in setting out the main submissions of both sides, came up with nine points. Your Honours will see the first two points relate to identification but the remaining seven relate to the money; the inculpatory effect of the Castlereagh Street money, which was alleged at that time to be the subject matter of the robbery. It was a very important -not merely evidentiary. It was really, in my submission, a linchpin of the Crown case at the first trial. It transcended being mere subject matter, with respect. So those seven of the nine points, your Honour, which the trial judge set out summarising the Crown case related to that money. Not only did we have in this case the Crown relying on the Castlereagh Street money, it attempted to discredit the money that it now intends - - -

KIRBY J: What did the Court say in Parker? I do not remember what was said in Parker.

MR HEATHCOTE: Parker talked about different evidentiary bases, your Honour. I can hand up copies. I have a copy for my friend.

KIRBY J: There is some mention of this by me in the closing section of the recent decision in Dyers.

MR HEATHCOTE: Your Honour, at page 536 of Parker, and that paragraph about the middle of the page said:

An allegation of co-ownership might have been the simple and sensible way to approach this matter. But in this case, it runs into two difficulties. The first is that it was not the way the Crown's case was presented at trial. It is not competent, retrospectively, to endeavour to impose such a re-interpretation upon the facts.

That, in my respectful submission, is precisely what is happening here. If I can go back to King. We talk about evidence. King was a case - - -

KIRBY J: Did the other members of the Court say anything on this in Parker?

MR HEATHCOTE: Yes. The majority of the judgment upon which the presiding judge, Justice McHugh, was a member of, at page 519 the last paragraph, just talked about meeting "a quite different case". We say that it is the reverse. What was discredited is now embraced in the particular case before your Honours.

McHUGH J: Yes, but there are no questions of law involved. The Court of Criminal Appeal exercised a discretion. You have to show that they wrongly exercised their discretion, which means you have to show they acted on some wrong principle.

MR HEATHCOTE: They quite clearly did, your Honour.

McHUGH J: Well, what was the principle they wrongly acted on?

MR HEATHCOTE: If we can take your Honours to the judgment of Court of Criminal Appeal. It commences at page 29 of the application book. The early part is a setting out of submissions and factual basis, but at paragraph 20 on page 46 of the application book his Honour Justice Heydon, giving the judgment for the Court of Criminal Appeal, set out that:

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.

Now, that is infected with error, in my submission. What his Honour is there saying in effect is even though the case was run one way the defence met one case, the Crown ran one case. His Honour could have accepted without more - that is what his Honour says - the discredited case, the case that was not relied upon, the case that the applicants never met.

KIRBY J: Was that particularised in support of the count of the indictment?

MR HEATHCOTE: It was never needed to be particularised, with respect, your Honour.

KIRBY J: But was it in fact particularised - - -

MR HEATHCOTE: It was not in fact particularised. There was no doubt between the parties as to which money they were relying on, and it is of course a matter that the Crown accepts. In these proceedings it is not a matter that your Honours have to - - -

McHUGH J: There is no error of principle in what the judge said there. All he is saying is that he could have rejected part of the evidence. He could have accepted your client's evidence that it was not his money, but the judge could have nevertheless accepted the identification evidence.

MR HEATHCOTE: What his Honour is saying there is his Honour could have been satisfied that it was not the Castlereagh Street money that was stolen. He could not have done that, given the way the case was run.

McHUGH J: Why not?

MR HEATHCOTE: He could not have done that.

KIRBY J: It is always open to the judge or the jury, if there is a jury, to accept an interpretation of the facts consistent with innocence. It is the Crown's obligation to prove the case beyond reasonable doubt.

MR HEATHCOTE: Of course it is, your Honour. When a case is run one way, if the parties determine it is to be run one way, if the trial judge wants to look at it another way there are certain obligations that fairness dictates. With a jury, a jury would have been directed - of course we had a judge-alone trial here so we did not have directions, but a jury would have been directed that the subject money of the robbery was the Castlereagh Street money. So it would not have been open to a jury. A trial judge is in exactly the same position - - -

McHUGH J: No, they would not have been directed that way. They would have been directed that your clients were charged with robbing McManus of $40 and $400 in cash of Hampsey. The Crown would have said, "Well, this is the $400".

MR HEATHCOTE: They would have shown the $400 photographed.

McHUGH J: Of course they would have, but that does not mean it was any more than evidence.

MR HEATHCOTE: It was the subject matter with respect, your Honour, and it was the whole focus of the case.

McHUGH J: It was not the subject matter at all. It was evidentiary matter. They were not charged with stealing these particular notes. That was evidence. But in any event you are five months out of time and you have to show some ground why Order 69A rule 3 should be dealt with.

MR HEATHCOTE: Your Honour, the applicants rely on the affidavit of Mr Peter Proctor, solicitor. It is at page 55 of the application book. In effect he says - - -

McHUGH J: Yes, we have read his affidavit. Your time is up, Mr Heathcote, thank you.

MR HEATHCOTE: Thank you, your Honour.

McHUGH J: We need not hear you, Mr Ellis.

This matter is several months out of time. In our view it is not a case where the Court should make an order dispensing with compliance with Order 69A rule 3. The Court is of the view that the matter has insufficient prospects of success on an appeal to warrant either the grant of an extension of time or an application for special leave to appeal. The application is therefore refused.

AT 2.50 PM THE MATTERS WERE CONCLUDED