Citation: R v Blanchette [2001] NSWCCA 446
Court: NSW Court of Criminal Appeal
Date: 5 November 2001
Judge(s): Heydon JA, Dowd J, Bell J
Background
Two accused brothers were convicted in the District Court after a judge-alone trial of two counts of robbery in company. The alleged robberies occurred in Hyde Park, Sydney, in the early hours of New Year's Day 1999. The victims were robbed of cash and a wallet, and the accused were apprehended by police shortly afterwards nearby, with one accused found in possession of eight $50 notes said to match those stolen from one of the victims.
Both accused denied involvement. They argued, among other things, that identification evidence was unreliable, that the finding of a wallet and cash by a third party weeks after the alleged offences cast doubt on the Crown case, and that one accused had withdrawn the cash from his own bank account.
On appeal, the Crown conceded the convictions could not stand but sought new trials rather than acquittals. The central question before the Court of Criminal Appeal was whether new trials should be ordered or whether acquittals should be entered.
Legal Issues
- Whether the trial judge correctly applied the onus and standard of proof, given language in the judgment suggesting uncertainty ("I think I should return the verdict of guilty")
- Whether the trial judge adequately directed himself on the identification evidence, including the statutory warning obligations under the Evidence Act in light of the witness's intoxication and head injury
- Whether the trial judge sufficiently addressed the good character evidence of both accused
- Whether the trial judge made adequate findings of fact and exposed his reasoning process as required under the Criminal Procedure Act
- Whether the trial judge considered each accused's case separately
- Whether a fresh witness statement, obtained after trial, warranted consideration
- Whether the Crown was impermissibly seeking to run a new and different case at any retrial, and whether that affected the appropriateness of ordering new trials rather than acquittals
Decision
The Court allowed both conviction appeals and quashed the convictions. The Crown conceded that multiple errors in the trial judge's judgment rendered the convictions unsafe. These errors included the failure to properly express or apply the standard of proof, the failure to give adequate self-directions on identification evidence (including the statutory warnings required where a witness was intoxicated and injured), the failure to expose reasoning on character evidence, and the failure to make clear findings of fact for each accused separately.
On the question of new trials versus acquittals, the Court weighed factors on both sides. In favour of acquittals, the Court noted the events occurred nearly three years prior, sentences had been partly served, the accused bore little personal responsibility for the trial's defects, and fresh evidence from the third-party wallet finder potentially strengthened the defence position.
However, the Court ultimately favoured ordering new trials. The offences were serious and prevalent. The first trial miscarried due to procedural and technical failures rather than any substantive insufficiency of evidence. The Crown case was not weak: the identification evidence had fewer infirmities than in many cases because of the contemporaneous nature of the assault, chase, and arrest. The fresh evidence was better tested in a new trial than used by the appellate court as a basis for directing acquittals.
The Court also rejected the argument that the Crown intended to run an impermissible new case at retrial. The two ways the Crown might put its case at retrial (with or without relying on the money found on the accused as corroboration) were not contradictory or inconsistent. Both routes supported the same charges and relied on the same underlying evidence.
Orders Made
- The appeal of Benjamin Ralph Blanchette against conviction was allowed and his convictions were quashed
- The appeal of Christian Joshua Blanchette against conviction was allowed and his convictions were quashed
- The Crown's appeal against sentence was dismissed
- A new trial of both accused was ordered
Key Takeaways
- Where a trial judge sitting alone fails to properly articulate the standard of proof, fails to give required self-directions on identification and character evidence, and fails to expose adequate reasoning for findings of fact, the convictions will not stand on appeal.
- A conviction appeal can be allowed and yet no acquittal ordered: the Court of Criminal Appeal retains discretion to order a new trial where the evidence at the original trial was not insufficient to support conviction had the trial been conducted correctly.
- The seriousness of the offence, the non-weakness of the Crown case, and the ability to test fresh evidence at trial are all relevant to whether new trials should be ordered rather than acquittals entered.
- A Crown case is not rendered impermissibly "new" at retrial merely because the prosecution elects to put the evidence in a different or more limited way than it did at first instance, provided the charges remain the same and no new or contradictory evidence is introduced.
- The existence of fresh defence evidence does not automatically favour an acquittal over a new trial; the Court of Criminal Appeal may determine it is preferable for that evidence to be tested in a proper trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW): ss 116, 165(1)(c)
- Criminal Procedure Act (NSW): s 17
Cases:
- 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