Braslin, Travis Lee v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Crawford CJ,Evans J,Blow J
• Judgment Date: 13 October 2011
• Docket Number: 244/2011
• Date: 13 October 2011

Braslin, Travis Lee

and

State of Tasmania

[2011] TASCCA 14

Crawford CJ, Evans and Blow JJ

244/2011

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Criminal Law — Evidence — Identification evidence — Warning advisable or required — Adequacy of warning — Generally — Special need for caution — Reasons for that need generally and in the circumstances.

Criminal Law — Appeal and new trial — Particular grounds of appeal — Misdirection and non-direction — Particular cases — Where appeal allowed — Misdirection as to topic not covered in cross-examination.

R v Clarke (1997) 97 A Crim R 414 , followed.

Aust Dig Criminal Law [2948]

Browne v Dunn (1893) 6 R 67 , referred to.

Aust Dig Criminal Law [3490]

Evidence Act 2001 (Tas), ss116, 165(2).

REPRESENTATION:

Counsel:

Appellant: J N Perks

Respondent: D G Coates SC

Orders of the Court (15 September 2011)

• 1 Appeal allowed.

• 2 Conviction quashed.

• 3 Appellant remanded to appear at a later date.

• 4 Bail granted.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ Evans J Blow J

1 At the conclusion of the hearing of this appeal, we allowed it and quashed the appellant's conviction on a charge of arson. We said that we would publish our reasons later. These are those reasons.

2 The appellant was tried before Tennent J and a jury on a single count of arson, contrary to the Criminal Code, s268. It was alleged that at Gagebrook on or about 2 August 2007 he unlawfully set fire to a house at 38 Deak Street, the property of ‘Housing Tasmania’.

3 There was indisputable evidence that the house at 38 Deak Street was destroyed by fire on the morning of 2 August 2007. There was evidence from which the jury could readily infer that the fire was deliberately lit. The evidence suggesting that the appellant lit the fire was entirely circumstantial. He denied lighting it and advanced an alibi defence.

4 The evidence relied on by the Crown to prove that the appellant lit the fire came from a number of witnesses. The principal witness was the appellant's former partner, Ms Rainey. She was the occupant of the house in question. She gave evidence that the appellant spent the night before the fire at that house, sleeping in the lounge room; that she left the house at about 10.20 to 10.30am; that the appellant was then still asleep in the lounge room, or at least had his eyes shut; that she forgot her keys, returned to the house, banged on the door, and woke the appellant; that they then argued; that he told her that, if she left, he was going to burn the house; that he called her a ‘leg-opening slut’; that she left and walked to a friend's house at 2 Deak Street; and that, not long afterwards, she saw a fire engine go past that house in the direction of hers. She said that she went to check on her house and that, as she was leaving to do so, she received a phone call from the appellant who asked whether she was ‘warm enough’. She said that the appellant was wearing a black and white Fox top on the morning of the fire. She said that the appellant said to her on a couple of earlier occasions that he would burn her house down, or that if they burnt the house they would get a new one and everything would be better.

5 A cousin of Ms Rainey, Ms Dillon, gave evidence that she drove Ms Rainey to 38 Deak Street the night before the fire, arriving at about 10.40pm; that the appellant was there; that she waited outside in her car for about 15 minutes for the purpose of giving the appellant a lift to his mother's place; that he was wearing a black and white motorbike top which she thought was a Fox type; and that she left without the appellant.

6 One of Ms Rainey's neighbours, Ms Jeffries, who lived at 34 Deak Street, gave evidence that on the day of the fire she saw a young male walking away from 38 Deak Street wearing a light coloured top that was probably white, and that a fire engine arrived no more than 10 to 20 minutes later.

7 Another neighbour, Mr Sproule, who lived at 42 Deak Street, gave evidence that he heard the appellant arguing at about 10.30am on the morning of the fire for about 10 minutes; that he was ignoring the argument; that the argument stopped and it went quiet; that then there was an explosion and a popping noise; and that he then saw flames coming from the side of the house and phoned the fire brigade. He said that he and the appellant had been neighbours for around 12 months, and that he had heard him arguing before. He did not claim to have seen the appellant on the morning of the fire.

8 The Crown called a customer service officer from Housing Tasmania, Ms Salter. She gave evidence that the appellant had a 9.30am appointment on the morning of the fire at the office of Housing Tasmania in Bridgewater; that he did not arrive there until nearly 11am; that he arrived wearing a black and white top with some sort of pattern on it; and that he told her he had missed his appointment as his car had broken down at Colebrook.

9 A number of other Crown witnesses gave evidence about the top that the appellant was wearing. Ms Dillon-Ballard, a friend of Ms Rainey who lived at 2 Deak Street, said that the appellant came to her house at about 12 noon on the day before the fire wearing a black and white Fox brand motorcycle top. Constable Horne gave evidence that he found the appellant at his father's home in Bridgewater at about 12.30pm on the day of the fire. Detective Gill gave evidence that he seized a black and white Fox brand top from that residence at about 3.15pm that day. A forensic scientist, Ms Gray, gave evidence that a swab of the collar and cuffs of that garment revealed a mixed DNA profile, and that the major profile matched the appellant's DNA. The relevance of the evidence as to the appellant's Fox top was that it tended to suggest that the man seen by Ms Jeffries, described by her as wearing a light coloured top that was probably white, must have been the appellant.

10 The appellant was interviewed by police officers, commencing at 9.47pm on the day of the fire. A video recording of the interview was played to the jury and tendered. The appellant told the interviewing officers that he walked home to his mother's house between 10.30pm and 11pm the previous night; that he had slept there, slept in, and missed his appointment at Housing Tasmania; and that his mother had woken him up and taken him to Housing Tasmania late. He said that he probably had told Ms Rainey in the past that he would love to burn the house down.

11 It was an agreed fact that on 16 May 2008 the appellant pleaded guilty in the Magistrates Court at Hobart to a charge of breaching a family violence order on 2 August 2007, which was the day of the fire, by approaching Ms Rainey at 38 Deak Street and calling her a ‘leg-opening cunt’. The Crown contended that the appellant's plea of guilty amounted to an admission that he was at the house on the morning of the fire.

12 The appellant gave evidence at the trial. Once again, he said that he spent the night before the fire at his mother's home. He said that what he said in his police interview was true. He gave evidence to the effect that he pleaded guilty to the charge in the Magistrates Court without realising the significance of the date contained in the charge; that he agreed there had been an occasion when he had used the words alleged; but that he was not at the house on the day of the fire.

13 The appellant's younger sister, Chantelle Braslin, gave alibi evidence for him. She said that on the morning in question he was asleep on their mother's couch; that she woke him up; that she later learned that Ms Rainey's house had been burnt down; and that she went for a drive there with their mother, leaving the appellant on the couch at their mother's home. During her cross-examination, she said for the first time that she and her mother had taken the appellant to the Housing Department, and that he was late for an appointment. Defence counsel did not call any other witnesses at the trial.

14 The notice of appeal in this case, as amended, contains seven grounds. Ground 6 was abandoned at the hearing. We quashed the appellant's conviction on the basis that grounds 3 and 7 were successful, and that there had been a miscarriage of justice by reason of the errors identified in those two grounds.

Ground 3 – Browne v Dunn direction

15 During her cross-examination Chantelle Braslin volunteered a comment to the effect that she had made a statement to the police following the fire. She was being cross-examined about her evidence that she had woken the appellant when he was sleeping on their mother's couch. The transcript of the relevant passage reads as follows:

‘You couldn't say that you'd never woke him up on the couch before, would you agree with that?……I – I'll say, no, I have never woke him up on the couch before because I can't remember.

All right. And so as it happened the only time you ever remember waking him up was in response to him being late for an appointment and that's the only time you've ever had to do that?……Yes, because of the house fire.

Okay…..These are things that I had to remember to – in order – I made a statement to the police to say that I woke him up on the couch.

When did you make a statement to police?……Just after the house fire.

And who did you make that statement to?……I would – it was at Bridgewater Police Station.

Right. Well I want to suggest to you that you never made a statement to police about this?……I did indeed. The police say that they have no record of it.

Well which police say they have no record of it and how are you aware of that?……I – my mother informed me that they had no record of it.’

16 The cross-examiner subsequently suggested to Ms Braslin that she had never made such a statement, but she insisted that she had.

17 None of the Crown witnesses were asked anything about a statement by Ms Braslin, but the prosecutor did ask one...