Braslin v Tasmania

[2011] TASCCA 14

[2011] TASCCA 14

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Braslin v Tasmania [2011] TASCCA 14

PARTIES:  BRASLIN, Travis Lee
  v
  STATE OF TASMANIA

FILE NO/S:  244/2011
DELIVERED ON:  13 October 2011
DELIVERED AT:  Hobart
HEARING DATE:  15, 16 September 2011
JUDGMENT OF:  Crawford CJ, Evans and Blow JJ

CATCHWORDS:

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.

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

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

Aust Dig Criminal Law [2948]

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.

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

Aust Dig Criminal Law [3490]

REPRESENTATION:

Counsel:
             Appellant:  J N Perks
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASCCA 14
Number of paragraphs:  56

Serial No 14/2011
File No 244/2011

TRAVIS LEE BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
13 October 2011

Orders of the Court (15 September 2011)

1. Appeal allowed.

1. Conviction quashed.

1. Appellant remanded to appear at a later date.

1. Bail granted.

Serial No 14/2011
File No 244/2011

TRAVIS LEE BRASLIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
13 October 2011

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.

1. 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".

1. 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. 

1. 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.

1. 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.

1. 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.

1. 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.

1. 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. 

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

1. 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."

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

1. None of the Crown witnesses were asked anything about a statement by Ms Braslin, but the prosecutor did ask one Crown witness, Inspector Harris, a more general question about a statement without mentioning Ms Braslin.  Her question and the inspector's answer were as follows:

"Inspector, during – or prior to or following your interview with Mr Braslin were you ever contacted by anyone to make a statement as to the whereabouts of Mr Braslin on the morning of the 2^nd of August 2007?…….No, I wasn't."

1. In her closing speech, the prosecutor argued that the jury should disbelieve Ms Braslin's evidence as to the events of the day of the fire.  In the course of doing that, she said this:

"Now there's no evidence that she made a – or no other evidence other than her assertion that she made a statement to police.  And in fact you might remember that Inspector Harris yesterday was asked whether or not she'd been contacted by anyone to make a statement with regard to this and he said, no.  His answer was, no.  And it was not suggested to him at that time that Ms Braslin had made a statement saying that her brother – or that she'd seen her brother on the couch that morning so I'd suggest to you that that's something that's been raised now."

1. Subsequently the learned trial judge gave the jury a direction as to the evidence about a missing statement, in the following terms:

"Now, another matter that I'll refer to generally simply because it did happen on a number of times.  When the accused and Chantelle Braslin were giving evidence, they at times gave evidence about matters that we hadn't heard anything about before.  Now, in a criminal trial if a person is going to give evidence about an issue and another witness who was called before may have information about that particular issue or could reasonably have been expected to have information about that issue, then there's a requirement that the matter be at least raised with that witness to give them an opportunity to give their side of the story.  Now there was certain evidence given by, as I said, both the accused and Chantelle Braslin about some matters that could have been put to earlier witnesses, Ms Rainey, police officers and Ms Dillon which weren't put so it means you've got to consider the weight that you give to the evidence from the accused about those matters.  The specific one I do refer to is the evidence however of Chantelle Braslin.  You'll recall that she told you that she'd given a statement to police and that she didn't have a copy of it, she'd heard through her mother that the police said they'd lost it.  Now, Inspector, I think then, Sergeant Harris, was specifically asked if anybody else had spoken to him about the particular matter, the fire and he said, 'No.'  Now, it was never put to him and it should have been that, 'Chantelle Braslin made a statement to police and she understands you've lost it?'  It was never put to him, he was never given an opportunity to respond to that and to tell you what the situation was. So you have to consider in those circumstances very carefully the weight, if any, that you give to the evidence of Ms Braslin that she had previously made a statement to police about this particular matter, most specifically about the evidence that she gave to the court this morning."

1. Ground 3 reads as follows:

"3   The learned Trial Judge erred:-

a)   in failing to correct a suggestion by Crown Counsel in her closing address that the evidence of the witness Chantelle Jade Braslin was a recent invention, and;

b)   by directing the jury that the failure by the Appellant's Counsel to put to a prosecution witness that Chantelle Jade Braslin had made a statement to police meant that the jury had to give careful consideration to what weight, if any, they should give to her evidence, thereby reinforcing the suggestion by Crown Counsel that her evidence was of recent invention;".

1. In the context of a criminal trial, the "rule" in Browne v Dunn (1893) 6 R 67 requires defence counsel to put to a Crown witness in cross-examination the case upon which the accused proposes to rely, to the extent that it is proposed to contradict the evidence of the Crown witness. Similarly, if it is proposed, as part of the defence case, to lead evidence of a fact which, if true, would be within the knowledge of a Crown witness, it is usually expected, at least in this State, that defence counsel will put that part of the defence case to the Crown witness in cross-examination. That is a logical extension of what was said in the House of Lords in Browne v Dunn.

1. But it was not part of the defence case that Chantelle Braslin had made a statement to a police officer after the fire in which she said things that she later said in Court.  During her examination-in-chief, defence counsel made no attempt to lead evidence from her about a police statement.  Nothing was said about a missing statement until Ms Braslin, the last witness to give evidence, volunteered the comments quoted above, and those comments were not responsive to the questions she had been asked.  And there was no reason to assume that the missing statement, if made, had been made to Inspector Harris or any of the other police officers called at the trial.

1. If Ms Braslin had made a statement about the appellant's movements at a time when the asserted facts were fresh in her memory, first-hand hearsay evidence from the person to whom the statement was made, or another person who was present when it was made, would have been admissible under the Evidence Act 2001, s66(2). However it was plainly not the intention of defence counsel to lead any such evidence. And evidence from any police officer other than one present when such a statement was made would have been inadmissible hearsay.

1. In those circumstances, it was inappropriate for the prosecutor to rely on the evidence of Inspector Harris when she sought to persuade the jury to disbelieve Ms Braslin.  It was also inappropriate for her to comment that it had not been suggested to the inspector that Ms Braslin had made a statement saying she had seen the appellant on their mother's couch.  There was no basis for defence counsel to challenge the inspector's evidence that no-one wanting to make a statement about the appellant's whereabouts had approached him.  There was no reason for defence counsel to have cross-examined him about a statement by Ms Braslin, missing or otherwise.

1. The learned trial judge should have corrected what was said by the Crown prosecutor in her closing speech about Ms Braslin, but she did not.  Instead, she made matters worse.  She should not have told the jury that the inspector should have been asked "Chantelle Braslin made a statement to police and she understands you've lost it?"  She should not have suggested to the jury that, because the inspector was never given an opportunity to respond to such a question, they needed to consider very carefully what weight, if any, they gave to the evidence of Ms Braslin that she had previously made a statement about the matters that were the subject of her evidence.  These errors could have made a critical difference as to the weight the jury attached to the whole of Ms Braslin's evidence, or as to whether they attached any weight to her evidence at all.

Ground 7 – Voice identification evidence

1. This ground concerns Mr Sproule's evidence to the effect that he recognised the appellant's voice during the argument that he heard at about 10.30am on the morning of the fire.  The appellant, by ground 7 of the amended notice of appeal, contended that the learned trial judge failed to give an adequate warning in relation to Mr Sproule's voice identification evidence, and that there had been a miscarriage of justice as a result. 

1. The learned trial judge gave the jury a direction about that evidence, in the following terms:

"Now, you had Mr Sproule, he was the neighbour.  You have the map of the cul-de-sac so you can probably work out from where he lived and where 38 Deak Street was, the sort of angle he was on to the house.  He told you of hearing what he said was the accused's voice yelling at about – between ten and thirty a.m. on the morning of the 2^nd of August.  He told you he had his back door open, he was at home having something to eat.  Now, clearly he says he didn't see either Ms Rainey or the accused on that particular morning.  He places the accused there at or around that time simply from the voice that he heard.  He told you that he'd – while Ms Rainey and the accused had been in or around the house for probably twelve months or so he'd only spoken to the accused maybe, I think his description was 'a handful of times.'  He was challenged as to his identification of that voice and he said he was fairly sure.  You have to clearly be careful about that evidence because he didn't see the accused and he didn't – and he'd only heard his voice in speaking to him, a matter of – a handful of times.  His evidence was given in the context that he had apparently heard other arguments coming from 38 Deak Street before this particular day."

1. Voice identification evidence falls within the definition of "identification evidence" in the Evidence Act, s3(1). There are two provisions of that Act that are relevant to this ground – ss116 and 165. The first of those sections reads as follows:

"(1)   If identification evidence has been admitted, the judge is to inform the jury —  

(a)that there is a special need for caution before accepting identification evidence; and

(b)of the reasons for that need for caution, both generally and in the circumstances of the case.

(2)    It is not necessary that a particular form of words be used in informing the jury."

1. By virtue of s165(1)(b), identification evidence is a species of unreliable evidence, and the appellant was therefore entitled to request the learned trial judge to give the jury a warning under s165(2). Such a request was made. That subsection reads as follows:

"(2)   If there is a jury and a party so requests, the judge is to —  

(a)warn the jury that the evidence may be unreliable; and

(b)inform the jury of matters that may cause it to be unreliable; and

(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

1. In Domican v R (1992) 173 CLR 555, which concerned the common law requirement to warn a jury as to the dangers associated with identification evidence, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said the following at 561 – 562 (omitting footnotes):

"… the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

1. The nature of the warning required under the uniform evidence legislation in New South Wales, where the relevant sections are indistinguishable from Tasmania's ss116 and 165 for present purposes, was considered by that State's Court of Criminal Appeal in R v Clarke (1997) 97 A Crim R 414. In that case at 428, Hunt CJ at CL said:

"I acknowledge that no particular form of words is to be used but I do suggest that it would be prudent for trial judges to refer to innocent people having been convicted upon honestly mistaken evidence."

1. At 431 – 432, Smart J said:

"… juries should now generally be directed in terms of the special need for caution before accepting the identification evidence. That means that the identification evidence should be carefully analysed in terms of its strengths and weaknesses and that in considering and evaluating it caution must be exercised before accepting it. The jury must be told of the reasons why caution must be exercised. …

The general reasons comprise that it has been the experience of the courts that in the past serious miscarriages of justice have occurred because people have been convicted of crimes that they did not commit because of mistaken evidence identifying them as the offenders. Further, experience has shown that such mistaken evidence of identification has been given by honest, responsible and sensible people who appeared to have watched what happened closely and who are convincing. It is always important to ascertain whether the identifying witness knew the accused before the event in question, how long he or she had seen the accused and the events under observation and how long after the events the witness identified the accused and in what circumstances. All these matters bear generally upon the risk of a mistake being made. It is then necessary to tell the jury of the particular reasons in the case before them why they need to exercise caution. That will involve isolating the particular potential defects of importance and highlighting or discussing them. 

The jury should be told that bearing in mind the experience of the courts of mistaken identification and the defects or potential defects discussed and giving them such weight as they merit and exercising the special need for caution which arises they should determine whether they are satisfied beyond reasonable doubt that the accused was in truth the person who committed the offence alleged."

1. At 433, Howie AJ said:

"The requirement under s 116 that the judge is to inform the jury of the 'special need for caution before accepting identification evidence' and the reasons for that need for caution is, in my opinion, a requirement that the trial judge indicate to the jury, in whatever words he or she feels are appropriate to convey the need for caution and the reasons for it, that persons have been wrongly convicted of criminal offences based upon evidence of mistaken identification by apparently honest witnesses and, therefore, caution must be exercised before convicting on such evidence."

1. The learned trial judge rightly identified the fact that Mr Sproule could not see the person whom he heard, and the fact that he had heard the appellant's voice only a handful of times, as factors that might have caused Mr Sproule's evidence to be unreliable. She did not expressly state that there was a risk that, having heard the appellant arguing at 38 Deak Street in the past, and having heard someone arguing there on the morning in question, he mistakenly concluded that he was hearing the same person. That was probably so obvious a possibility that it was not necessary to labour the point. However the learned trial judge did not remind the jury of evidence from Mr Sproule that he heard the voice in question for only about 10 minutes on the morning of the fire, and that he was ignoring the argument. Those were matters that should have been mentioned pursuant to s165(2)(b) as matters that might have caused the voice identification evidence to be unreliable.

1. More significantly, the direction that the jury had "to clearly be careful about that evidence" fell short of informing the jury that there was a "special need for caution" as required by s116(1)(a), and the learned trial judge said nothing to the jury about "the reasons for that need for caution … generally", as required by s116(1)(b). That is to say, she said nothing about the experience of courts that innocent persons have been wrongly convicted as a result of mistaken identification by apparently honest witnesses.

1. For these reasons, we consider that the direction as to Mr Sproule's voice identification evidence was inadequate, and did not satisfy the requirements of ss116 and 165. If an adequate direction had been given in accordance with those sections, the outcome of the trial might have been different.

The unsuccessful grounds of appeal

1. Grounds 1, 2, 4 and 5 were unsuccessful.  We will state briefly our reasons for concluding that those grounds should fail.

Ground 1 – Conduct of trial by defence counsel

1. By this ground, the appellant contended that a miscarriage of justice had resulted because his counsel at the trial, Mrs Morgan, did not call two additional alibi witnesses.  Those uncalled witnesses were his mother, Mrs Annette Braslin, and a neighbour of hers, Tanya Harwood. 

1. The principles relevant to a ground of appeal of this nature were summarised by Gleeson CJ, with whose reasons McInerney J agreed, in R v Birks (1990) 19 NSWLR 677 at 685 as follows:

"1   A Court of Criminal Appeal has a power and duty to intervene in a case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2     As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3     However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible and undesirable to attempt to define such cases with precision. When they arise they will attract appellate intervention."

1. We received affidavit evidence relevant to this ground from the appellant, his mother, Ms Harwood, Mrs Morgan, and another legal practitioner, Mr Wilkinson.  Mr Wilkinson had been briefed to defend the appellant, but had withdrawn from the case several days before the trial because of other commitments.  He was not cross-examined, but all of the other witnesses were. 

1. Mrs Morgan spoke to the appellant during the trial about calling his mother as a witness.  She also spoke to his mother about that possibility during the trial.  It appears from her affidavit that she decided not to call Mrs Braslin because (a) Mrs Braslin had a number of prior convictions and was likely to be cross-examined about them; (b) Mrs Braslin had been charged with making a false statement to the police as to the appellant's whereabouts at the time of the fire, and that charge was pending; and (c) she feared that calling Mrs Braslin as an alibi witness might do more harm than good.  Mrs Braslin said in her affidavit that Mrs Morgan told her there were not enough legal aid funds for her to be called as a witness, but Mrs Morgan denied that.  We accepted the evidence of Mrs Morgan on that point.  Not only was she a more impressive witness than Mrs Braslin, but the cost to the Legal Aid Commission of calling an additional alibi witness would have been insignificant.  There is no reason why Mrs Morgan would have said such a thing.  Another factor weighing against the calling of Mrs Braslin is that she might have said something inconsistent with the evidence of the appellant and/or the evidence of her daughter Chantelle.  It is quite clear that Mrs Morgan's decision not to call Mrs Braslin was made for sound tactical reasons.

1. It is clear from the evidence that Mrs Morgan did not ever speak to Ms Harwood.  The appellant said in his affidavit that he told Mrs Morgan that he wanted his mother's neighbour called as a defence witness.  Under cross-examination he said that he did not get the chance to introduce Ms Harwood to Mrs Morgan because Mrs Morgan made it clear that she "didn't want to call no one".  Mrs Morgan said in her affidavit that Mr Braslin's father, who apparently took an intense interest in the case and the way it was to be conducted, had suggested a number of witnesses whose names she no longer recalled.  She said she made it clear to the father that she took her instructions from his son, not him.  She said that she recalled a neighbour being mentioned as a possible alibi witness, but that she was not introduced to her, and not provided with any statement or outline of the evidence she could give.  It seems to us that Mrs Morgan faced a very difficult task in coping with a quantity of unmeritorious suggestions from the appellant and his relatives as to how she should do her job.  Whilst she may have been reluctant to call any alibi witnesses at one stage, the fact is that she did call the appellant's sister.  We are not satisfied that she inadequately investigated the possibility of calling one or more other alibi witnesses.

1. In her evidence before this Court Ms Harwood said that she saw the appellant outside his mother's home at about 8.30am on the day in question.  However the appellant told the police in his interview that he slept in, and was woken by his mother at about 10am or 11am.  As we have said, he gave evidence at the trial that what he told the police was true.

1. Ms Harwood said that, on the morning in question, the appellant was standing on his mother's front porch, and that he waved to her as she was taking her son to school.  The day in question was some 3½ years before the trial.  Ms Harwood had not made a statement or spoken to a lawyer or a police officer about the events of the day in question prior to the trial.  She was not an impressive witness.  A jury could well have concluded that her evidence was very unreliable.

1. In the circumstances, we were not persuaded that a miscarriage of justice was caused or contributed to by Mrs Morgan not calling either or both of the potential witnesses in question.

Ground 2 – Contradiction of an agreed fact

1. As we have said, it was an agreed fact that on 16 May 2008 the appellant pleaded guilty in the Magistrates Court to a charge of breaching a family violence order on 2 August 2007 by approaching Ms Rainey at 38 Deak Street and calling her a "leg-opening cunt".  Under cross-examination at the trial, the appellant said that he was not sure whether he was in court when the facts relating to that charge were read out or whether it was his lawyer who was present.  In the course of her summing up, the learned trial judge reminded the jury of the agreed fact, and continued as follows:

"At the time the accused pleaded guilty to that particular charge, he was represented by a lawyer.

Now, I make reference to that simply because the accused gave some evidence to you that he wasn't even sure he was in court on the day that that plea of guilty was entered.  Now the agreed fact was that he entered the plea of guilty and not that his lawyer did.  He's not in a position to give evidence that contradicts a fact that he's already agreed to so the agreed fact is he was in court when he entered a plea of guilty.  He also suggested to you that if he was at court he wasn't paying attention to dates and things and in effect what he says to you that he was pleading guilty to what – that all he was pleading guilty to was that he called Jenna Rainey a leg opening cunt, but he says it happened on another occasion.  But as his counsel pointed out to you  he makes the same reference in his interview with police.  So you need to consider the accused's evidence in relation to that particular issue."

1. Ground 2 asserted that the learned trial judge erred in directing the jury that the appellant could not contradict an agreed fact.

1. Counsel for the appellant relied on the Evidence Act, s191(2)(b), which provides that evidence may not be adduced to contradict or qualify an agreed fact unless the Court gives leave. If the learned trial judge had chosen to be thorough to the point of pedantry, she could have told the jury that the appellant was not in a position to give evidence that contradicted an agreed fact because leave was required before that could be done, and leave had not been granted. In our view no miscarriage of justice resulted from her Honour telling the jury that the appellant was "not in a position to give evidence that contradicts a fact that he's already agreed to". That was an accurate statement of his position, leave not having been granted or even sought.

1. There was nothing misleading in the impugned direction.  Her Honour made it clear that one of the issues that the jury needed to consider was whether, when pleading guilty, the appellant did not realise the significance of the date contained in the charge.  There was no suggestion that the agreed fact precluded the jury from accepting, or giving weight to, the appellant's evidence as to that point.

Ground 4 – Putting the defence case

1. This ground asserted that the learned trial judge erred in failing to adequately put the defence case to the jury.  Essentially, counsel for the appellant submitted that her Honour summarised the defence case too briefly.  Her Honour's summary of the defence case was certainly brief.  It was so brief that it is convenient to set it out in full.  Her Honour said this:

"Now the accused told you that he left Ms Rainey's home at about 10.30 p.m. on the night of the 1^st of August, that's the night before the fire.  He says that he walked to his mother's address at 5 Holloway Drive.  He says he slept on the couch at her house that night, that he was woken up the next morning and driven to Housing Tasmania.  He says he was not wearing the black and white Fox top either that night or on the 2^nd of August.  He denies being at Ms Rainey's home on the morning of the 2^nd of August and he denies lighting the fire at the house. 

The accused's sister, Chantelle Braslin who was – I didn't – I'd have to calculate her age but perhaps fifteen, sixteen at the time of the fire – told you that she recalls being at her mother's home on the night of the Wednesday the 1^st of August or the night before the fire and she recalls that on the following morning she woke her brother up who was sleeping on the couch at his mother's house.  She also recalled going with her mother up to Jenna Rainey's house because they'd heard that there was a fire there.  She was unsure about whether her brother came with them.  She was unsure about what happened after she'd woken her brother up."

1. The duty of a trial judge to ensure a fair trial of an accused person requires the judge "to put fairly before the jury the case which the accused makes": RPS v R (2000) 199 CLR 620 at 637. In Domican v R (above) at 561, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

"Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence."

1. A trial judge does not have a duty to remind the jury of every argument advanced by defence counsel: Basto v R (1954) 91 CLR 628 at 637; Brown v R [1972] Tas SR 57 at 71. "What is sufficient for the purpose will necessarily vary from case to case": R v Checconi (1988) 34 A Crim R 160 at 173 per Roden J, with whom Street CJ and Slattery CJ at CL agreed.

1. This was a short and simple case.  The defence case was particularly simple.  The appellant said he did not light the fire, and that he was somewhere else at the time.  His sister said that he was with her at their mother's house.  The evidence being circumstantial, the jury were obliged to consider a hypothesis consistent with the appellant's innocence, namely that someone else lit the fire when he was elsewhere.  They were given appropriate directions about the criminal standard of proof and the use of circumstantial evidence.  In our view the case was so simple that no lengthier or more thorough summary of it was warranted.  The summary of the relevant evidence was all that was required.  The summary made the nature of the defence case absolutely clear.

Ground 5

1. By this ground, the appellant contended that the evidence of him threatening that he would burn the house, prior to the day of the fire, should have been excluded pursuant to the Evidence Act, s137. That section requires a court to refuse to admit evidence adduced by a prosecutor in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the accused person. The evidence to which this ground relates comprised part of Ms Rainey's evidence and part of the appellant's police interview. No objection was taken to the admission of that evidence during the trial.

1. In our view the evidence was highly probative.  It showed that the appellant had thought about setting fire to the house on earlier occasions when he became angry with Ms Rainey.  It was circumstantial evidence that tended to prove that he was the person responsible for the fire.  In our view the risk of unfair prejudice was minimal.  There was no suggestion that the appellant had ever previously set fire to the house or anything else.  Any jury should be credited with the ability to take into account the fact that angry people commonly make threats that they do not carry out.  Learning that the appellant had previously made such threats was hardly likely to trigger an emotional response from the jurors of such a nature as to interfere with their impartiality and distract them from their duty to give a true verdict in accordance with the evidence.  In our view the evidence in question was rightly admitted.

Conclusion

1. For the reasons stated above, we concluded that the errors of the learned trial judge in her summing up in relation to the statement said to have been made by Chantelle Braslin (ground 3), and in relation to Mr Sproule's voice identification evidence (ground 7) might have deprived the appellant of a chance of being acquitted, and that there had therefore been a miscarriage of justice.  We therefore allowed the appeal, quashed the appellant's conviction, remanded him to appear at a later date, and granted bail, with a view to there being a new trial, subject of course to the prosecutorial discretion of the Director of Public Prosecutions.