CB v Director of Public Prosecutions

[2013] NSWSC 618

Supreme Court

New South Wales

Medium Neutral Citation:

CB v Director of Public Prosecutions [2013] NSWSC 618

Hearing dates:

16 May 2013

Decision date:

23 May 2013

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Extend time for filling the summons instituting an appeal.

(2) Grant leave to appeal in relation to grounds (iii) and (v).

(3) Note that leave is not required in respect of the balance of the grounds of appeal.

(4) Dismiss the appeal.

(5) Make no order as to costs.

Catchwords:

CRIMINAL LAW- reckless damage to property- mens rea- level of foresight- whether determined by elements of offence or particulars of charge

CRIMINAL LAW-no case to answer submission- sufficiently addressed in substance

PROCEDURE- magistrates- adequacy of reasons

PROCEDURE- function of particulars-relationship with elements of charge

Legislation Cited:

- Crimes Act 1900, s 4, s 4A, s 5, s 35(2), s 195, s 195(1)(b), s 199
- Crimes (Appeal and Review) Act 2001, s 52, s 55
- Children (Criminal Proceedings) Act 1987, s 27
- Criminal Procedure Act 1986, s 11, s 12, s 175
- Inclosed Lands Protection Act 1901, s 4(1)(a)

Cases Cited:

- Acuthan v Coates (1986) 6 NSWLR 472
- Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
- Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119
- DPP v Lee [2006] NSWSC 270
- Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
- Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Johnson v Miller [1937] HCA 77; 59 CLR 467
- King v The Queen [1986] HCA 59; 161 CLR 423
- May v O'Sullivan [1955] HCA 38; 92 CLR 654
- Mifsud v Campbell (1991) 21 NSWLR 725
- Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
- R v Coleman (1990) 19 NSWLR 467
- R v Hancock [1996] 2 Cr App Rep 554
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Storey (1985) 19 A Crim R 275
- R v VHP (Unreported, NSWCCA, 7 July 1997)
- Sherras v De Rutzen [1895] 1 QB 918
- Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
- Wainohu v New South Wales [2011] HCA 24; 243 CLR 181
- Zanetti v Hill [1962] HCA 62; 108 CLR 433

Category:

Principal judgment

Parties:

CB (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
ID Bourke (Plaintiff)
A Mitchelmore (Defendant)
Solicitors:
Alan Robinson Solicitors (Plaintiff)
Director of Public Prosecutions (Defendant)

File Number(s):

2012/373246

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2012-09-20 00:00:00

Before:

Blewitt LCM

File Number(s):

H49361380

Judgment

Introduction

1. By summons filed on 30 November 2012, and subsequently amended on 21 December 2012, the plaintiff (CB) appeals against his conviction by Blewitt LCM on 20 September 2012 for an offence of recklessly damaging property by fire contrary to s 195(1)(b) of the Crimes Act 1900. He seeks an order that his conviction be set aside pursuant to s 55 of the Crimes (Appeal and Review) Act 2001.

1. The plaintiff appeals against his conviction on the following six grounds:

(i) The Magistrate misconceived the elements of the offence under s 195 Crimes Act 1900;

(ii) The Magistrate failed to give adequate reasons for his conclusion that the offence was proved beyond reasonable doubt;

(iii) The Magistrate erred in finding that the Plaintiff acted deliberately in setting fire to a lounge inside the premises;

(iv) The Magistrate failed to give adequate reasons for his finding that the Plaintiff acted deliberately in setting fire to a lounge inside the premises;

(v) The Magistrate erred in conflating the question of prima facie case with proof beyond reasonable doubt.

(vi) The Magistrate erred in finding the offence proved beyond reasonable doubt.

1. Apart from grounds (iii) and (vi), each of the grounds raises a question of law in respect of which the plaintiff is entitled to appeal to this Court as of right: s 52 of the Crimes (Appeal and Review) Act. In respect of grounds (iii) and (vi) the DPP does not oppose leave to appeal being granted.

1. Section 55 of the Act provides that the Court may determine an appeal against conviction by setting aside the conviction, setting aside the conviction and remitting the matter to be heard by the Local Court or dismissing the appeal. The plaintiff submitted that the conviction ought be set aside.

The Facts

1. At 4 pm on Thursday 29 March 2012 the plaintiff, who was almost 15 years old, and another youth climbed through the bathroom window of an unoccupied residence in Sanctuary Point, which was being renovated by its owners on the weekends. The plaintiff and the other male went up to the third floor where they smoked cigarettes which had been lit with a lighter belonging to the other male. When the other male went downstairs, the plaintiff used the lighter to singe frayed material on a couch. The couch was made of foam and quickly caught fire. The other male returned to the third floor to help the plaintiff extinguish the fire. Their efforts were unsuccessful. When the room filled with smoke they left the house, which burned down.

1. In the course of the ERISP, the plaintiff:

a. said that he understood he was not allowed to go into the house;

b. admitted that he was using the lighter to singe the couch;

c. said that he did not intend to set the couch "completely on fire" and that it was his intention "just to singe it";

d. said that he appreciated that singeing the couch was not the right thing to do because "it could have endangered people around us. Houses, people, animals", but that he did not think that the act of singeing the couch "was gunna set the whole couch on fire";

e. said that once they left the house he thought the couch was going to burn out, and possibly the fly screen on the window above the couch;

f. said that he did not think the whole house would catch alight and that he did not ring the fire brigade because he did not want to get into trouble; and

g. said that at the time he did not think what the possible outcome might be.

The hearing in the Court below

1. On 20 September 2012, the plaintiff appeared before the Magistrate at Nowra Children's Court. He was charged with entering inclosed lands contrary to s 4(1)(a) of the Inclosed Lands Protection Act 1901 and intentionally or recklessly damaging property by fire contrary to s 195 of the Crimes Act. He pleaded guilty to the first charge and not guilty to the second charge.

1. The Court Attendance Notice (CAN), in respect of the second charge, read as follows:

Crimes Act 1900, Section 195(1)(b)

Intentionally or recklessly damage property by fire/explosive

between 4.00 pm and 4.15 pm on 29/3/2012 at Sanctuary Point.

did intentionally or recklessly destroy by means of fire certain property, to wit, A house at ... Sanctuary Point the property of [TF]

1. The prosecution case comprised the police brief, which included an Electronically Recorded Interview of a Suspected Person (ERISP). None of the makers of statements was cross-examined. No objection was taken to the ERISP. At the close of the prosecution case, the plaintiff submitted that there was no case to answer, but indicated that he would not go into evidence.

1. His Honour stood the matter in the list so as to enable him to read the police brief and gave an ex tempore judgment at 2 pm on the day of the hearing. The Magistrate found the second charge to have been proved beyond reasonable doubt and convicted the plaintiff accordingly.

The grounds of appeal

The alleged misapprehension by the Magistrate as to the requisite mental element (ground (i))

1. Section 195(1)(b) of the Crimes Act relevantly provides:

"(1) A person who intentionally or recklessly destroys or damages property belonging to another. . . is liable:

. . .

(b) if the destruction or damage is caused by means of fire. . to imprisonment for 10 years."

1. Section 4 of the Crimes Act defines "property" as including "every description of real and personal property".

1. Section 4A of the Crimes Act provides:

"For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge."

1. His Honour addressed the mental element required for the offence under s 195(1)(b) of recklessly damaging property by fire and said:

"I accept the prosecution's submissions. In my view there is no requirement in 195 of the Crimes Act, nor the definition contained in the Act, that it is necessary for the prosecution to prove beyond reasonable doubt that the accused foresaw the possibility of the house burning down. That being the case the test is, as it has existed since the case of Coleman, that is that that accused had the realisation that the particular kind of harm in fact occasioned might occur, but not necessarily the degree to which that damage occurred."

1. The plaintiff submitted that the Magistrate was in error in deciding that it was sufficient that he realise that the particular kind of harm in fact occasioned might occur, but not necessarily the degree to which that damage occurred. He contended that the prosecution had to prove that the plaintiff foresaw the possibility that his actions, applying a cigarette lighter to the fibres on the lounge, might lead to the house burning down.

1. The plaintiff's submissions are encapsulated in the following passage from the written submissions:

"In this case, the "particular kind of harm" alleged in the charge was the destruction of the house. Notwithstanding this, the Magistrate found that it was not necessary for the prosecution to prove...that the accused foresaw the possibility of the house burning down. This approach, it is submitted, involved an error of law. The Magistrate applied a wrong test." [Emphasis in original]

1. The DPP submitted that the Magistrate was correct to conclude that there was no requirement, either in s 195 or in the definition of recklessness in s 4A, that the prosecution must prove beyond reasonable doubt that the plaintiff foresaw the possibility of the house burning down. It was sufficient for the prosecution to prove that the plaintiff foresaw the possibility of some destruction of property. The DPP submitted the prosecution had to prove the charge, but not the particulars of the charge. It was not essential for proof of the charge that foresight of the possibility of the house burning down be proved, since the charge would be made out by proof of foresight of the possibility of damage to the couch.

1. The resolution of the mental element required for an offence under s 195(1)(b) is a matter of statutory construction. It was not suggested that the terms of s 195 indicated any intention on the part of the legislature to displace the usual presumption that mens rea is an essential ingredient in every offence: Sherras v De Rutzen [1895] 1 QB 918.

1. The difference between the parties is whether, as the plaintiff contended, the prosecution was, by reason of the particulars of charge, required to prove that the plaintiff foresaw the possibility of the house being destroyed, or whether, as the defendant contended, the requisite mental element need extend only to damage to property, even though the result of the act was that the house was actually destroyed.

1. The plaintiff relied on Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 (Blackwell) in support of the construction for which he contended. The defendant submitted that the Magistrate's decision was consistent with Blackwell. Reference was also made to R v Coleman (1990) 19 NSWLR 467 (Coleman), which also needs to be considered. For the reasons that follow I do not consider these cases to be of particular relevance to the issue which turns on the relationship between the charge and the particulars. However in deference to the parties submissions I propose to summarise the proposition for which each stands.

1. In Blackwell the appellant was charged in the alternative under s 35(2) of the Crimes Act which then relevantly provided that a person who recklessly causes grievous bodily harm to any person is guilty of an offence. However the trial had been conducted on the basis of an earlier version of s 35(2) which had since been repealed which proscribed malicious infliction of grievous bodily harm.

1. "Maliciously" was then defined in s 5 of the Crimes Act to mean:

"Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime."

1. The trial judge directed the jury on the mental element required for the alternative charge or malicious infliction of grievous bodily harm in the following terms:

"Now you will see I have defined maliciously at the bottom of the page for you. It means intending to cause some physical injury, that is, the Crown must satisfy you that at the time [the appellant] inflicted grievous bodily harm to [Mr Ward] he did so intending to cause some physical injury ...

At law in the context of this particular charge maliciously means doing an act intending to cause some physical injury and without lawful cause or excuse."

1. The appellant was convicted. He appealed on the basis that the offence with which he was charged and convicted had been repealed. The Crown submitted that there was no miscarriage of justice since the direction given by the trial judge was correct as a matter of law for the then current offence of recklessly causing grievous bodily harm. The Court of Appeal, by majority, allowed the appeal, quashed the conviction and ordered a new trial. The minority judge, Hall J, considered there to be no miscarriage of justice and would have dismissed the appeal.

1. The Court of Appeal in Blackwell was, however, unanimous in holding that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. Since the relevant consequence for the alternative offence was grievous bodily harm, the direction was erroneous since it referred only to "some physical injury".

1. In my view, the reference to "the relevant consequence" in Blackwell is a reference to the physical consequences of the acts in question contemplated by the statutory provision that proscribes the conduct that amounts to the offence, as distinct from the actual consequence of the alleged offender's conduct. In Blackwell, because the offence under s 35(2) proscribed "recklessly causing grievous bodily harm", the mental element required was foresight of the possibility of grievous bodily harm, as appears from the following passages in Beazley JA's judgment:

"[78] . . . Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted. . .

[82] . . . Relevantly for present purposes, the statute provides for an offence of "recklessly [causing] grievous bodily harm". There is no definitional construct within the terms of the provision which governs its meaning. There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean "some physical injury"."

1. When one applies the construction authorised by Blackwell to the proscription in s 195(1)(b) against reckless damage or destruction of property belonging to another, the foresight of the possibility caused by the recklessness must be, in my view, damage to, or destruction of property, since they are the consequences referred to in the statute.

1. In Coleman the appellant was charged with malicious infliction of actual bodily harm with intent to have sexual intercourse. The issue for determination in Coleman was whether it was sufficient that the accused recognise the possibility that injury might result, or whether it was necessary that the accused recognise the probability that injury would result.

1. Hunt J, Findlay and Allen JJ agreeing, considered the meaning of "maliciously" in the context of the statutory definition in s 5 of the Crimes Act which included a reference to "recklessly". Hunt J reviewed the authorities and said at 475:

"At the time of that decision [R v Crabbe (1985) 156 CLR 464], it was also generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted."

1. In Coleman the relevant physical consequence, in respect of the possibility of which the appellant was required to have foresight, was physical harm since "actual bodily harm" was the ingredient of the offence charged. Blackwell and Coleman turned on the statutory wording of the provision that created the offence charged. These cases establish that a statutory provision which includes a consequence ought be construed to require proof of the requisite mental element as to that consequence. The Magistrate's reasoning in the instant case is in accordance with Blackwell and Coleman.

1. Thus, in R vStorey (1985) 19 A Crim R 275 (Storey), it was held that on a charge of maliciously setting fire to a building, the necessary malice (being the requisite mental element) could be established if there was advertence to the possibility of the ignition of the building. It was not sufficient for the prosecution to establish merely an intention to set fire to certain objects in the building. Storey does not assist in the resolution of the instant case since the provision which created the offence, s 199 of the Crimes Act, required proof that the accused maliciously set fire to a public building.

The relationship between the charge and the particulars

1. Neither Blackwell nor Coleman nor Storey addresses the precise issue with which ground (i) is concerned: the extent to which the particulars govern the charge.

1. The plaintiff submitted that the prosecution, having drafted the particulars to allege reckless destruction of a house by fire, was required to prove foresight of the possibility of destruction of the house by fire. If the prosecution could prove foresight only of the possibility of destruction of the couch which, in turn, led to the destruction of the house, the plaintiff, so the argument went, was entitled to be acquitted.

1. The DPP submitted that it was obliged to prove only the essential elements of the charge. The function of the particulars was to identify the relevant incident but not to supplant the elements of the charge, which were derived from the statutory provision.

1. In order to address this question regard must be had to the principles that apply to particulars, as distinct from the charge itself, together with the provisions relating to court attendance notices.

1. The Criminal Procedure Act applies to the proceedings before the Magistrate in the Children's Court: s 27 of the Children (Criminal Proceedings) Act 1987. Section 175 of the Criminal Procedure Act1986 relevantly provides:

(3) A court attendance notice must do the following:

(a) describe the offence,

(b) briefly state the particulars of the alleged offence,

. . .

(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.

1. Section 11 of the Criminal Procedure Act provides that:

The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

1. Section 12 of the Criminal Procedure Act provides in part:

"(1) For the purposes of this or any other Act . . . an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.

(2) This section applies to a statement or description of an offence in any court attendance notice . . ..

1. It was common ground that the offence was described in the first two lines of the CAN as:

Crimes Act 1900, (Section 195(1)(b)

Intentionally or recklessly damage property by fire/explosive.

1. It was also common ground that the particulars were set out in the following four lines of the CAN as follows:

"between 4.00 pm and 4.15 pm on 29/3/2012 at Sanctuary Point.

did intentionally or recklessly destroy by means of fire certain property, to wit, a house at ... Sanctuary Point the property of [TB]."

1. The charge is the offence, the elements of which must be proved by the prosecution. The particulars contain the description of the conduct said to constitute the commission of the offence charged.

1. The general principle was articulated in the following terms by Gleeson CJ (Handley JA and Studdert J agreeing) in R v VHP (Unreported, NSWCCA, 7 July 1997) (VHP):

"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable."

1. The first qualification was made out in VHP. Indeed the Crown conceded that the way in which the trial had been conducted meant that it was vital to the prosecution case that the offence had occurred on 27 November 1987.

1. The principal function of particulars is to inform the person charged of the case he or she has to meet: Johnson v Miller [1937] HCA 77; 59 CLR 467 at 489-490 per Dixon J; King v The Queen [1986] HCA 59; 161 CLR 423 at 425 per Murphy J. Particulars are a means of providing natural justice. In certain circumstances a trial may be regarded as unfair if the particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his or her defence: Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 at 57 per Deane J.

1. That there may be a difference between the particulars on the one hand and the facts by which the charge ultimately proved on the other is a product of their different functions: R v Hancock [1996] 2 Cr App Rep 554. This difference is also demonstrated by the requirement that the facts be determined for the purposes of sentencing after a verdict is returned: R v Olbrich [1999] HCA 54; 199 CLR 270 at [24] - [28].

1. I do not consider there to be any reason to depart from the general principle expressed in VHP in the instant case. The case was conducted on the papers by the tender of the police brief, which comprised statements which recorded uncontroversial facts and the ERISP in which the plaintiff made various admissions. The only substantial issues in the case, having regard to the plaintiff's admissions, were:

(i) what mental element did the prosecution have to prove;

(ii) whether there was evidence of the mental element such as to give a rise to a case to answer and, if so,

(iii) whether the prosecution had proved the requisite mental element beyond reasonable doubt.

1. The prosecution case at its highest was that the plaintiff had foresight of the possibility of the house burning down. This case was within the particulars. However, the determination of the mental element required an assessment of what the admissions made by the plaintiff amounted to. The question arose whether the prosecution had established either that the plaintiff had foresight of the possibility of the house burning down; or that he had lesser foresight relating to damage to, or destruction of, the couch. Had any of those mental elements been established, the charge would have been proved.

1. The Magistrate had to determine the essential mental element in light of the no case submission made by the plaintiff. In order to determine the no case submission his Honour needed to articulate the mental element that was required to prove the charge at its lowest, not at its highest.

1. For the reasons given above I do not consider that ground (i) has been made out.

Alleged inadequacy of the reasons of the Court below (ground (ii))

1. The giving of reasons is central to the judicial function: Wainohu v New South Wales [2011] HCA 24; 243 CLR 181at [54]-[58] per French CJ and Kiefel J.

1. The Court of Appeal, in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale) considered the circumstances in which reasons might be regarded as inadequate such as to amount to an error of law. In Beale, notwithstanding that the appellant's evidence was significantly corroborated by three witnesses whose evidence was accepted, the trial judge rejected her evidence regarding long-term physical impairment. It was held that since the statement of reasons did not expose any logical reasoning process behind the credit findings, the appellant was left with a justifiable sense of grievance.

1. As Meagher JA said in Beale at 442:

"A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made:Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost . . . One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise . . ."

1. Whether a statement of reasons is adequate depends on the particular case: Beale at 442-444 per Meagher JA; Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA and Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281 per McHugh JA. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58].

1. Nonetheless allowance is made for the pressures under which magistrates are required to make decisions and also for judgments which are given ex tempore: Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15]-[18].

1. As referred to above, the real issue in the case was the mental element required and whether the prosecution had at least established foresight of the possibility of the couch being damaged beyond reasonable doubt.

1. The Magistrate considered the answers given by the plaintiff in the ERISP interview, which his solicitor identified in submissions, as having the effect that the prosecution was not able to prove beyond reasonable doubt that he foresaw the possibility of the house burning down. His Honour said in the reasons for decision:

"In particular, reference was made to the answers contained in the record of interview at question 117 where, I am paraphrasing, that the accused said to the police that "We just thought that the couch was going to burn out and the flyscreen." Answer to question 128, he did not think that the whole house would catch fire. Answer to question 148, he thought that he was just going to singe the couch, as well as answers to questions 151 and 159 which demonstrate that the accused was not aware of the consequences.

If the position is that the prosecution must establish that the accused must prove beyond a reasonable doubt that the accused foresaw the possibility of the house burning down, I think the answers that I have just referred to in the record of interview would place the prosecution in some jeopardy."

1. His Honour accepted the prosecutor's submission that there was neither a requirement in s 195 of the Crimes Act, nor the definition of recklessness contained in the Act, that the prosecution prove beyond a reasonable doubt that the accused foresaw the possibility of the house burning down. His Honour considered it was sufficient for the prosecution to prove that the plaintiff realised that the particular kind of harm in fact occasioned, namely damage to property, might occur and that the prosecution did not have to prove that the plaintiff realised that his act of singeing the couch might cause the house to burn down.

1. On the basis of the admissions contained in the ERISP transcript, which were the admissions identified by the plaintiff's solicitor which are referred to in the reasons set out above, his Honour was satisfied that the act of setting fire to the lounge was a deliberate act and not an accident, and that that act was a reckless act because the plaintiff foresaw the possibility that the couch might be damaged. Accordingly, his Honour found the offence proved.

1. I consider that the Magistrate's reasons were sufficient to address the principal arguments raised by the plaintiff and were ample to inform him why he was convicted. The reasons articulated the opposing arguments on the construction issue, gave reasons for preferring the construction for which the prosecution contended and sufficiently identified the evidence of the plaintiff's admissions which resulted in his Honour being satisfied beyond reasonable doubt of the plaintiff's guilt.

1. Accordingly, ground (ii) must fail.

Alleged error in the finding that the plaintiff acted deliberately in setting fire to a couch inside the premises (ground (iii)) and alleged failure to give adequate reasons for the finding (ground (iv))

1. The Court below concluded:

"So I am satisfied having regard to the admissions contained in the record of interview that the act of setting fire to the lounge was a deliberate act, it was not an accident."

1. It was, in my view, open to the Magistrate to find that the prosecution had proved that element of the offence beyond reasonable doubt. The residence at Sanctuary Point was destroyed by fire, which the plaintiff started by singeing a couch with a lighter. In flicking the lighter and singeing the couch the plaintiff knew that it could catch fire, although he did not think that it would. He made the following admissions in the ERISP:

"I was just flicking the lighter and singeing the couch and it caught on fire and was just pff [sic]." [A 91]

Q 148 So what was your intention, just to ---2

A Just to singe it.

Q 149 O.K. I guess, even as little things like that, do you appreciate that that's not the right thing to do?

A Yes. Definitely.

Q 150 [22.37] O.K. Why, I guess, just to ask. You know, why did you?

A 'Cause it could have endangered people around us. Houses, people, animals.

Q 151 But if, if, if you did know it was the wrong thing to do, why did you, you know, why would you do it?

A 'Cause I didn't think it was gunna set the whole couch on fire.

Q 152 O.K. Righto. Yes. Obviously, yeah, you're aware now of the, I guess the things that can happen when --

A Oh yeah, definitely. That's what I was thinking. That's what I was saying to Cody, "It's amazing that little thing lit the whole, made a big deal."

1. The evidence referred to above established that the plaintiff deliberately singed the couch by burning its fabric with an open flame, which damaged the couch by setting fire to it. It was open on this evidence for the Court below to find that the plaintiff had acted deliberately in setting fire to the lounge.

1. The plaintiff submitted that there was no articulation of the reasoning process that the Magistrate applied when his Honour inferred from the plaintiff's admission that he was singeing the couch that the act of setting fire to the couch was deliberate, particularly in the context of the plaintiff's statement that he "didn't think it was gunna set the whole couch on fire".

1. I do not consider that any resort needs to be had to the transcript of the exchanges between bar and bench to appreciate the basis of the Magistrate's decision. Although the reasons were brief, there had earlier been reference to the admissions set out above. I consider that when his Honour's reasons are read as a whole it is sufficiently clear what admissions are being referred to in the passage set out above. The finding that "it was not an accident" was a finding that the plaintiff used the lighter deliberately to singe the couch. Applying fire to fibres of a couch would tend to ignite the couch. Although the plaintiff did not think that this was what would eventuate, it was open to the Court below to find that he admitted that he foresaw such a possibility.

1. Accordingly neither of these grounds is made out.

1. The plaintiff also submitted that there was no articulation as to why in the circumstances, even if a prima facie case had been made out, the Court should then conclude that there was no reasonable doubt about the plaintiff's guilt. This argument will be addressed below in the context of ground (v).

The alleged error that the Court below conflated the question of prima facie case with proof beyond reasonable doubt (ground (v))

1. The question whether the prosecution has established a prima facie case, or a case to answer, is a question of law: May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 658; Zanetti v Hill [1962] HCA 62; 108 CLR 433 at 442 per Kitto J. The question whether it has proved the commission of the offence beyond reasonable doubt is a question of fact. These two questions are necessarily separate and distinct. As Howie J said in DPP v Lee [2006] NSWSC 270 at [32]:

"Keeping the two issues separate and distinct is no mere empty formality. And it is of crucial importance for the present proceedings. If the Magistrate determined to dismiss the informations before her on the basis that the prosecution evidence, even if accepted beyond reasonable doubt, could not prove all the elements of the charges, it is then open to the DPP to argue that her decision was erroneous in law. On the other hand if she determined to dismiss the informations because she did not accept some part of the prosecution's evidence on a crucial issue beyond reasonable doubt, it would be difficult for the DPP to identify any question of law that would give this Court jurisdiction to intervene."

1. The police brief was admitted into evidence by consent and the hearing proceeded by way of oral submissions. No witnesses were called. The plaintiff's solicitor made a "no case" submission on the second charge. These submissions principally concerned two matters: first, whether the prosecution had established that the plaintiff knew that what he was doing was wrong (doli incapax) and whether the evidence was capable of establishing that the plaintiff intentionally or recklessly destroyed the house by fire.

1. The Court below considered the mental element required for recklessness and decided that foresight of the possibility of damage to property was sufficient, rather than, as the plaintiff contended, foresight of the possibility of the house burning down.

1. His Honour then continued:

"So I am satisfied having regard to the admissions contained in the record of interview that the act of setting fire to the lounge was a deliberate act, it was not an accident. In my view the act of setting fire to the lounge and its subsequent spreading to beyond the lounge was a reckless act.

ACCORDINGLY I FIND THAT THE OFFENCE HAS BEEN PROVED BEYOND A REASONABLE DOUBT."

1. The Court of Appeal in Acuthan v Coates (1986) 6 NSWLR 472 at 478-479 cautioned against:

"[F]all[ing] into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly."

1. The Court then went on to say at 479:

"It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates."

1. Although the Court below did not expressly find that there was a case to answer, it was implicit in his Honour's finding as to the requisite mental element. It appeared to be common ground that there was evidence which, if accepted, could establish that the plaintiff foresaw the possibility of damage to property but that if the prosecution had to establish foresight of the possibility of burning the house down, it might not be able to do so to the requisite standard. Since there was evidence on the basis of which it was open for the Magistrate to find that the plaintiff foresaw at least that the couch might be damaged, his Honour's determination of the legal test against the plaintiff meant that there was, necessarily, a case to answer.

1. It was common ground before me that the plaintiff did not intend to call evidence if the no case submission was rejected and agreed that the Magistrate could determine the matter on the papers. It would, accordingly, have been futile for the Magistrate to determine the no case submission and then ask the plaintiff whether he wished to go into evidence.

1. The plaintiff's submissions were directed to an interpretation, and weighing, of the evidence. This process is not germane to an assessment of whether there is a case to answer, but is central to the determination whether the prosecution has proved its case beyond reasonable doubt. The plaintiff conducted the case on the basis that, if the Magistrate decided that there was a case to answer, his Honour would proceed to determine whether the case had been proved beyond reasonable doubt.

1. I consider that the substance of what the Magistrate said and did was sufficient to indicate that his Honour distinguished between the requirements of a case to answer on the one hand and satisfaction beyond reasonable doubt on the other. That his Honour did so in a shorthand way is understandable in circumstances where there was no conflict in the evidence and the plaintiff had elected not to adduce evidence in his case. The only real matters in issue, apart from doli incapax, which is not the subject of appeal, were the mental element required and the effect of the plaintiff's admissions as to his thought processes.

1. Although the Magistrate did not, in his reasons, expressly deal with the two matters separately, his Honour did make clear in the final paragraph of the reasons that he was addressing the second question: whether the prosecution had proved its case beyond reasonable doubt. This followed a consideration of the elements of the offence together with the evidence probative of such elements. The Magistrate had earlier addressed the question of the mental element in respect of which there needed to be some evidence for there to be a case to answer.

1. The Magistrate did not in terms say "I find there is no case to answer". However in light of the way the hearing was conducted and the submissions were made, the Magistrate must be taken to have found a case to answer since this was the only basis on which his Honour could have proceeded to determine the factual question whether the requisite mental element had been established beyond reasonable doubt.

1. For these reasons, this ground is not made out.

Costs

1. The DPP did not seek an order for costs in the event that it was successful.

Orders

1. I make the following orders:

(1)   Extend time for filling the summons instituting an appeal.

(2)   Grant leave to appeal in relation to grounds (iii) and (v).

(3)   Note that leave is not required in respect of the balance of the grounds of appeal.

(4)   Dismiss the appeal.

(5)   Make no order as to costs.

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Decision last updated: 23 May 2013