B v Visser
[2000] TASSC 141
•5 October 2000
[2000] TASSC 141
CITATION: B v Visser [2000] TASSC 141
PARTIES: B
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 15/2000
DELIVERED ON: 5 October 2000
DELIVERED AT: Hobart
HEARING DATES: 14 September 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Evidence - Matters relating to proof - Miscellaneous matters - Absence of available evidence - Accused not giving evidence as to his own state of mind.
R v Hocking [1988] 1 Qd R 582, followed.
Weissensteiner v R (1993) 178 CLR 217; RPS v R (2000) 74 ALJR 449, considered.
Aust Dig Criminal Law [461]
REPRESENTATION:
Counsel:
Applicant: A Woodgate
Respondent: F C Neasey
Solicitors:
Applicant: Ritchie & Parker Alfred Green & Co
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 141
Number of Paragraphs: 10
Serial No 141/2000
File No LCA 15/2000
B v CLAAS VISSER
REASONS FOR JUDGMENT BLOW J
5 October 2000
The applicant has moved the Court for the review of an order made by a magistrate sitting in the Youth Justice Division of the Magistrates Court, whereby a charge of arson was found proven against him. The central issue in the case was the applicant's state of mind at the time of the alleged commission of the crime. A videotape of a police interview with the applicant was played to the learned magistrate. Apart from a few questions and answers which were excluded, the video was tendered by consent. In the parts of the video that were received as evidence, the applicant admitted that on 21 January 2000, he had been outside a post office with a number of other youths; that he had had a cigarette lighter; that he had used it to set alight to a piece of paper held by another youth; and that that other youth had dropped the burning piece of paper into the letterbox where members of the public post mail. It was common ground that the post office had caught fire and been substantially damaged as a result. The critical question was whether, at the time he lit the piece of paper held by his companion, the applicant had the requisite state of mind for him to be found guilty of arson.
Under the Criminal Code, s268, any person who unlawfully sets fire to any building is guilty of a crime, which is called arson. By virtue of the Code, s267(3), an act causing injury to property cannot constitute the crime of arson "unless it is done wilfully". The word "wilfully" includes "recklessly", so that arson may be committed if the accused deliberately does a willed act, aware that setting fire to a particular building is a likely consequence of that act, and if he or she recklessly does that act, regardless of that risk: R v Hodgson [1985] Tas R 75; R v Gardenal-Williams [1989] Tas R 62. The act which resulted in the post office being set on fire was the applicant's companion's act of "posting" the burning piece of paper. The prosecution case appears to have been that the applicant aided and abetted the doing of that act. Persons who aid or abet the commission of crimes can be convicted of those crimes by virtue of the Code, s3(1), the relevant provisions of which read as follows:
"3 ¾ (1) Where a crime is committed, each of the following persons is deemed to be a party to, and to be guilty of, the crime, and may be charged with actually committing it:
(a) …;
(b) every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime;
(c) every person who abets another person in committing the crime".
The applicant's act of lighting his companion's piece of paper enabled or aided that companion to do the act which, if accompanied by the requisite state of mind on the part of the companion, constituted the crime of arson. I think it was also open to the learned magistrate to find that by the act of lighting the paper the applicant abetted the act of "posting" the burning paper, in the sense that he encouraged that act. Because of the wording of s267(3), the prosecution bore the onus of proving that the act of the applicant's companion which caused the building to catch fire was "done wilfully". It thus bore the onus of proving that the companion either intended the building to catch fire or foresaw that it was likely to catch fire and put the burning paper in the letterbox with reckless indifference to that risk. The learned magistrate did not consider the companion's state of mind, but no point has been made as to that omission in the grounds of appeal.
For the applicant to be convicted on the basis of aiding or abetting, it was necessary for the prosecution to prove that he knew all the essential facts which made his companion's act a crime, and that he intentionally aided or abetted his companion's act of "posting" the burning paper: Giorgianni v R (1985) 156 CLR 473. It was thus necessary for the prosecution to prove that the applicant knew his companion was contemplating putting a burning paper into the letterbox, and either knew that his companion intended thereby to set the building on fire or knew that his companion was aware of the likelihood of that consequence and recklessly indifferent to it. Thus one of the facts the prosecution had to prove was that the applicant, at the time of lighting the paper, knew of the likelihood that putting the burning paper in the letterbox could result in the building catching fire. Little turns on the point that it was knowledge of the likelihood of that consequence, as distinct from foresight of the likelihood of that consequence, that needed to be proved in relation to the applicant.
The Code, s4, may have provided another basis for the prosecution case, quite apart from aiding and abetting. There was a live issue as to whether the evidence was sufficient to establish that the applicant joined his companion in forming a common intention to prosecute an unlawful purpose by putting the burning paper in the letterbox, or whether he was indifferent as to whether his companion would prosecute that purpose, and thus did not share any common intention.
The applicant did not give evidence before the learned magistrate. In fact, nobody did. The videotape was played by consent. A transcript of it and some photographs were tendered by consent. The prosecutor and defence counsel did not go to the trouble of identifying precisely what facts were agreed, but it is clear enough that it was common ground that the video was authentic, that it was recorded when it purported to have been, and that the photographs depicted damage to the post office caused as a result of the acts described by the applicant during the videotaped interview.
The learned magistrate relied upon Weissensteiner v R (1993) 178 CLR 217 in concluding that he was satisfied beyond reasonable doubt that the applicant was guilty of arson. That case is authority for the proposition that an inference of guilt can more safely be drawn from proved facts when an accused person elects not to give evidence of relevant facts which must be within his or her knowledge. However, in deciding whether an inference of guilt should be drawn in such circumstances, the tribunal of fact must always bear in mind that, apart from the possibility that giving evidence would not assist his or her case, an accused person may have other reasons not to give evidence. In Weissensteiner, at 228, Mason CJ, Deane and Dawson JJ said:
"Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly."
In RPS v R (2000) 74 ALJR 449 at 461 (par58), McHugh J referred to some of the matters that may lead an accused person to decide not to give evidence, including loss of memory, illness, age, and low intelligence. The learned magistrate did not consider whether the applicant might have had some reason not to give evidence, apart from the possibility that his evidence would not assist his defence. That omission is complained of in ground 2 of the notice to review. The applicant is only 14 years old. Although I have not seen the videotape, I have read the transcript of it, and it contains indications that he is an unsophisticated and inarticulate individual, and quite possibly of low intelligence. If he had given evidence, he would have exposed himself to cross-examination by a professional police prosecutor. It seems very likely that those matters might have led to the decision not to give evidence. The learned magistrate erred in law in failing to consider them.
By ground 1 of the notice to review, it is contended that an accused person's failure to give evidence cannot be taken into account in drawing inferences as to questions as to his or her state of mind, as distinct from inferences of guilt drawn from circumstantial evidence. The Queensland Court of Criminal Appeal so held in R v Hocking [1988] 1 Qd R 582. See particularly the judgment of Williams J, with whom Kelly SPJ and Ryan J agreed, at 593. Nothing to the contrary was said in Weissensteiner. There are also dicta to the same effect in R v Kanaveilomani [1995] 2 Qd R 642 in the judgments of Macrossan CJ (at 645 - 648) and Lee J (at 658). In RPS (supra), Gaudron ACJ, Gummow, Kirby and Hayne JJ explained the basis of the Weissensteiner principle in the following terms at 455 - 456 (par27):
"… it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks."
In the absence of authority to the contrary, I think it is appropriate that I follow the Queensland Court of Criminal Appeal in Hocking. I hold that the Weissensteiner principle has no application in relation to the drawing of inferences as to an accused person's state of mind, as distinct from inferences of guilt drawn from circumstantial evidence, and that the learned magistrate erred in law in regarding Weissensteiner as applicable to this case.
Mr Neasey submitted on behalf of the respondent that, despite any error on the part of the learned magistrate in relying on Weissensteiner, the evidence against the applicant was so overwhelming that the motion to review should be dismissed pursuant to the Justices Act 1959, s110(2)(ab). That is to say, he submitted that no substantial miscarriage of justice has occurred. The relevant evidence came only from the videotaped police interview. The applicant told the police that someone said to light a piece of paper, and that he was the only one with a lighter. He agreed that this was said to his companion by some other person first of all, and that his companion came over to him and said "Light this piece of paper"; that his companion had picked the piece of paper up off the ground and brought it over to him; and that he lit it. When first asked whether he was aware that his companion was going to place the piece of paper, once it was burning, into the letterbox, he answered "No". When pressed by the interviewing officer, he said, "I didn't know he was gonna chuck it down there, I didn't think like he had the guts for it". Subsequently he said he was not really able to give an explanation of why he lit the paper. None of this evidence was objected to. In saying words to the effect that he did not think his companion had the guts to put the burning paper into the letterbox, the applicant made an admission to the effect that he realised that the reason he set fire to the paper was to give his companion an opportunity to put a burning paper into the letterbox. Later in the interview, the applicant said that he did not know there was mail in the letterbox, but in my view the very fact that he lit the piece of paper compels the conclusion that he must have foreseen the possibility, not only that his companion would put the burning paper into the letterbox, but also that there would be mail in the bottom of the letterbox which would catch fire. Later in the interview, he was asked, "Were you aware that lighting a piece of paper and having a friend throw it in the letterbox, if the building had gone up as it did, would be referred to as arson?" He replied, "Yeah". That question was the only one directed to the critical issue, namely whether the applicant knew of the likelihood of the post office building, rather than the mail, catching fire. I have not seen the video. Without seeing it, I am not in a position to make a finding on the question whether the applicant knew of the likelihood of the building catching fire. It may be that he was not sufficiently alert or intelligent to know that, and that he gave an affirmative answer only as a result of the interviewing officer putting words into his mouth. I think one would need to see the video before deciding whether it was established beyond a reasonable doubt that the applicant realised the likelihood of the building catching fire. Further, I think minds might differ as to whether it should be inferred from the established facts that the applicant's companion intended the building to catch fire, or that he foresaw the likelihood of it doing so and was recklessly indifferent to that possibility.
In the circumstances, I think the appropriate course is to set aside the orders of the learned magistrate and remit the matter to another magistrate for determination according to law. I order accordingly.
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