DAB v Capes - [2011] WASC 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DAB -v- CAPES [2011] WASC 137

CORAM: MURRAY J

HEARD: 17 MAY 2011

DELIVERED : 17 MAY 2011

PUBLISHED : 19 MAY 2011

FILE NO/S: SJA 1012 of 2011

BETWEEN: DAB
Appellant
AND
AARON ROSS CAPES
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HOGAN
Citation  :POLICE -v- DAB
File No  :JO 510 of 2010

Catchwords:

Criminal law and procedure - Arson - Defendant charged with damaging property by fire - Fire extinguished before damage occurred - Spontaneous combustion followed - Whether resultant damage was wilfully caused by defendant - Whether miscarriage of justice resulted

Legislation:

Criminal Code (WA), s 441, s 443, s 444, s 444A, s 445A

Result:

Appeal allowed
Conviction quashed
Orders made by the Children's Court set aside
Appellant awarded costs of the appeal

Category: A

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr S Stocks and Mr J Chu

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Blechynden v Bogumil [2011] WASC 4
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Pace v H (1994) 12 WAR 35
R v BBD [2006] QCA 441; [2007] 1 Qd R 478
R v Clark [2007] QCA 168; (2007) 171 A Crim R 532
R v Lockwood, Ex p. Attorney General [1981] Qd R 209
R v T [1997] 1 Qd R 623
SKA v The Queen [2011] HCA 13

MURRAY J:

The charge, proceedings in the Children's Court and matters of fact

The appellant was charged that on 2 May 2010, at Alexander Heights, he wilfully and unlawfully damaged by fire, the property of a company trading as Red Rooster Alexander Heights, contrary to the provisions of s 444(1)(a) of the Criminal Code (WA). The appellant was born on 6 April 1995. As he had therefore just turned 15 when the offence was allegedly committed, although the offence charged, colloquially referred to as arson, would, if the offender was an adult, be triable only in the Supreme Court on indictment, this prosecution was to be conducted in the Children's Court.
The appellant entered a plea of not guilty and the matter came on for trial in the Children's Court at Joondalup before Magistrate Hogan on 10 December 2010. A sergeant of police appeared for the prosecutor, and the appellant was represented by counsel. At the conclusion of the trial the appellant was convicted.
The matter was adjourned to 29 December 2010, at which time a juvenile conditional release order for a period of 12 months was imposed, with supervision conditions, a program direction that the appellant attend substance abuse counselling as directed by the supervising juvenile corrections officer, and a requirement that he perform 40 hours of community work or service, again in accordance with the directions of the supervising officer. That order has continued in force pending the determination of this appeal.
At the commencement of the trial the prosecuting sergeant was asked by his Honour to make an opening statement. The officer described what was alleged to have occurred at about 11.30 pm on the date in question. He said that the appellant and a companion were in the street in what was evidently a shopping precinct in Alexander Heights. He took two paper Red Rooster bags from inside a bin and placed two cigarette lighters (which the appellant evidently had with him) in one bag. He screwed up that bag and put it and the contents into a second bag. The object of the exercise was apparently to light the paper bags so that sufficient heat would be generated to cause the cigarette lighters to explode, for the general amusement of those present.
The appellant first lit this concoction in the Red Rooster carpark, but, before anything happened, his friend put out the fire so that it could be relocated in play equipment in the playground outside the front of the Red Rooster fast food outlet. The two boys climbed the fence into the playground, placed the bags and lighters in a plastic tunnel and again lit the package, placing the third lighter which had been used in that way on top of the concoction once it was fairly alight. The fire started to go out and so the appellant blew on it. This time the fire got going properly and two of the cigarette lighters exploded, increasing the combustion.
The appellant then tried to stamp out the flames. His friend got some water and gave it to the appellant who used it to douse the flames. Both boys then left the area, the appellant believing that he had extinguished the flames (as the prosecutor said). There was no reference to any damage having been caused to the Red Rooster play equipment at that stage. The prosecutor added that after the boys had left the scene the fire reignited, apparently spontaneously, and burned down the play equipment.
His Honour inquired of the prosecutor what was the particular property of Red Rooster which was alleged to have been damaged. The sergeant responded that the prosecution did not differentiate between individual items of property. It was the whole of the property which had been damaged by fire that was the subject of the prosecution notice. That property was damaged as, 'a natural consequence of lighting a fire that is uncontrolled', and the prosecutor went on to say that there would be evidence to show that damage by fire and smoke had been caused to the building of the Red Rooster store itself (ts 3 ‑ 6).
Ultimately, the prosecution notice, which had originally simply referred to 'the property' of the company trading as Red Rooster Alexander Heights, was amended so that it charged the appellant that he:
wilfully and unlawfully damaged the property of Red Rooster Foods Pty Ltd, trading as Red Rooster Alexander Heights, by fire; namely, the playground equipment and the building of Red Rooster (ts 8).
The evidence was that the structure of the playground and its equipment were virtually destroyed. All of it had to be replaced and there was damage to the building. The total cost of repair and replacement was estimated to be over $650,000.
The facts established by the evidence led in support of the prosecution case were virtually unchallenged by the defence. Most of the prosecution evidence was presented in the form of written statements made by various witnesses, including a number who saw the fire, but no evidence was given from independent sources as to the activities of the appellant and his friend, or as to how the fire reignited.
The respondent, a detective attached to the police arson squad, gave evidence. He was a qualified expert in fire investigation. His report, tendered in evidence, was a comprehensive document, but his conclusion was no more precise than that the fire was caused somewhere in the children's playground by an incendiary device. There is no evidence that the plastic tunnel or any part of the equipment was damaged by fire before the appellant attempted to put it out.
The appellant gave the police a statement when he returned to the scene on the following morning. He said that he and his friend had seen a group of Aboriginal children light a fire in the playground area. He later admitted that this statement was untrue. He said that he was frightened that he would be in trouble after he saw the extent of the damage which had, he thought, resulted from what he had done.
He was reinterviewed on video at 1 pm on 3 May 2010. The appellant described the part that he had played in causing the fire in terms which were consistent with the prosecutor's opening statement to which I have referred above.
Of present significance as to the cause of the fire are the following statements made by the appellant:
1.'I set it on fire and then they popped. We went and got water and put it out, and then we left. And then we came back in the morning and the whole thing was burned down' (ts 7).
2.'Q. Hm'mm. Okay. And whose idea was it to get a bottle out of the bin?
A.His. He just did it. He just jumped over and grabbed it.
Q.Did you talk to each other about it?
A.No. I tried to stomp on it to put it out but ‑ ‑ ‑
Q.How could you do that in the tunnel?
A.I just sat down and put my foot on it.
Q.Yeah. Was it damaging the tunnel (indistinct) the fire?
A.I don't think it was. I didn't actually see. It wasn't damaged when
we left' (ts 21).
3.After he tipped the bottle of water over the fire, 'it went out'. He said there weren't any flames when he tipped the water on the fire. It was 'just all red'. He tipped the water over it, 'and then it was all gone' (ts 23 ‑ 24).
4.Finally, it was put to him that at the time he put the fire out there must have been some sort of fire damage to the plastic tunnel where the fire had been started. He answered, 'I don't know if there was. I didn't see any fire damage' (ts 31).
When the prosecution closed its case the appellant declined to give evidence and called no witnesses.

The reasons of the magistrate

His Honour the magistrate gave his reasons for conviction ex tempore and at some length. With respect to his Honour, they are rather confused in their terms and I will not set them out here. His Honour made findings about the appellant's conduct in relation to setting and extinguishing the fire:
The fire then was lit by Dylan and the fire was initially, if I can break it down into components, the paper bag and then the burning of the paper bag - sorry, the cigarette lighter ignition flame sets the paper bags, the paper bag burned and the cigarette lighter has exploded, and then Dylan described on the video record of interview how there was a fire and he gave some physical size of it with his hands, and that is the fire that he saw, and that is the fire that he put out. When I say 'fire' he was seeing flames and he put it out.
He didn't, in fact, at any stage in his video record of interview say that the plastic tube that he had put it in was burning or was on fire or anything like that. The fire that he put out, as he said on the video record of interview, was the paper bag fire, and he did that with water. There is no doubt at all that he went and got some water and put out the paper bag fire and the flames that he could see - well, when I say 'put out', he put out whatever he could see. I shouldn't be so precise. He put out what he could see, which was flames (ts 60 ‑ 61).
As to the appellant's state of mind, it is clear that his Honour accepted that the appellant did not intend that any damage would be caused to Red Rooster's property. But his Honour found that it was to be inferred that the appellant knew and believed that his conduct was likely to have the result that Red Rooster's property would be damaged by fire, and he said, referring specifically to two pieces of evidence:
The only available inference from those two pieces of evidence - and there is no inference consistent with innocence - is that Dylan both knew and believed that what he was about to do and then did was likely to result in the destruction of or damage to property. At the risk of repeating myself, that was why he first said, 'Let's go across the road,' and that's why he spoke about making up a fictitious story and telling the Aboriginal people not to do it there, because he knew and believed that it was likely to result in the destruction of or damage to property. I find that as a fact (ts 60).
His Honour added in his reasons a reference to s 444A of the Code, to the provisions of which I shall return shortly. His Honour said:
In any event, it matters not what he thought, because in terms of 444A, he had a duty with that cigarette lighter and the paper bag that he lit to take care and not only that, he is held to have caused any destruction or damage to that property by reason of the omission to perform that duty. So it matters not about his expertise in knowing about ignition sources and temperatures. It might be relevant in some later sense that he tried to fix up his error, but it matters not for causation purposes that he tried to fix up what he had done wrong (ts 61).
I may say, at this point, that for the appellant it is contended that his Honour misapplied the provisions of s 444A which, he submits, had nothing to do with this case. The respondent concedes that point, but argues that, on the evidence, having regard to the way in which the magistrate ought to have reasoned about the case, the conviction was inevitable and no miscarriage of justice has occurred. As will appear, my view about s 444A is rather different from the views expressed by both counsel, but the point is not material to the decision of the appeal.

The appeal and the applicable law

The appellant obtained leave to appeal on three grounds. He abandons the first ground upon which the appeal was originally brought, a ground concerned with the admissibility of the statement originally made by the appellant in which he falsely attributed the fire to unidentified Aboriginal youths. The two remaining grounds are:
1.The learned Magistrate erred in law in failing to consider whether the prosecution had proved beyond reasonable doubt that the appellant knew or believed that the relevant act or omission that he was alleged to be criminally responsible for was likely to result in the property of Red Rooster Pty Ltd, in particular the playground equipment and the building of Red Rooster, being damaged by fire.
2.The verdict of guilty was unreasonable and could not be supported by the evidence, thereby occasioning a miscarriage of justice.
Particulars
(i)The learned Magistrate had to be satisfied beyond reasonable doubt that the appellant wilfully damaged the property of Red Rooster Pty Ltd by fire, in particular the playground equipment and the building of Red Rooster, before convicting him of the offence charged.
(ii)In order to find that the appellant had wilfully damaged the property particularised in the prosecution notice (as amended) the learned Magistrate had to be satisfied beyond reasonable doubt that the appellant either intended to damage the playground equipment or the building by fire, or that he knew or believed that the act or omission that was alleged to form the basis of his criminal responsibility was likely to result in that property being damaged by fire.
(iii)The learned Magistrate expressly found that the appellant did not intend to damage the playground equipment and the building by fire.
(iv)In the circumstances it was not open to the learned Magistrate, on the evidence, to find that the appellant knew or believed that the act or omission that was alleged to form the basis of his criminal responsibility was likely to result in that property being damaged by fire.
The offence of arson of which the appellant was convicted is defined by s 444 of the Criminal Code:
444. Criminal damage
(1)Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable —
(a)if the property is destroyed or damaged by fire, to life imprisonment; …
As has been seen in this case, it was alleged by the prosecution notice, as particularised, that the appellant damaged property of Red Rooster. It was first necessary to identify the act of the appellant upon which the prosecution relied. That act could only be the act of setting fire to the package which contained a screwed up paper bag and the cigarette lighters. I do not accept the proposition advanced for the appellant that the relevant act was his conduct from the assembly of the package to the extinguishment of the viable fire.
If the act of lighting the package caused any damage to the playground equipment and the building, that damage was done 'unlawfully'. Section 441, so far as material, provides:
441. Unlawful acts
(1)An act which causes injury to the property of another, and which is done without his consent, is unlawful unless it is authorised, or justified, or excused by law.
The appellant's act was certainly done without the consent of any person on behalf of Red Rooster, and there was no suggestion that it was authorised, justified or excused by law.
The act of setting fire to the concoction was a deliberate act. It was not an unwilled act, and the appellant remained criminally responsible for it. Section 23A of the Code provides:
23A. Unwilled acts and omissions
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
The reference to s 444A may be noted, but it is unnecessary to mention it in the context of s 23A. There was no suggestion that the appellant's act of lighting the fire occurred independently of the exercise of his will.
The question which did arise, however, and was debated before, and referred to at some length in the reasons of the magistrate, was the question whether the appellant's act of lighting the fire caused the damage to Red Rooster's property upon which the prosecution relied. In terms of the Code, the question was whether the damage could be held to have been caused by the appellant's act of setting fire to the paper package, or was that damage an event which occurred by accident.
So far as s 23B of the Code is material to this case, it provides:
23B. Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
In that context it became important to consider the operation of s 444A, a provision (with s 445A) added recently to the Code by the Arson Legislation Amendment Act 2009 (WA), Pt III, which was proclaimed to come into operation on 19 December 2009 (Government Gazette, 18 December 2009, p 5167). Those provisions were therefore operative on the date of offence alleged in this case.
So far as material, s 444A provides:
444A. Duty of person in control of ignition source or fire
(1)It is the duty of a person who has charge of or is in control of a source of ignition to use reasonable care and take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy; and the person is held to have caused any destruction or damage to that property by reason of any omission to perform that duty.
Relative to this case, therefore, the damage by fire could not be an event which occurred by accident if the appellant was properly to be found to have breached the duty to use reasonable care and take reasonable precautions to avoid lighting the fire, if lighting the paper package was to light a fire which might cause damage to the Red Rooster property. If so, the appellant would properly be held to have caused the damage which resulted, which could not be regarded as an event which occurred by accident.
His Honour the magistrate drew that conclusion in the passage that I have quoted, although, as will appear, his Honour erred, in my opinion, in also considering the application of s 444A to the case in the context of his consideration of the question whether the damage to the property was wilfully caused by the appellant. As to that question, I agree with both counsel. That was not a question to be answered in that way, and his Honour fell into error in that regard.
As has been seen by reference to the grounds of appeal, the appellant relies, in the first ground, upon that error, but does not contend that it was not open to his Honour to hold that the appellant, in lighting the fire, breached the duty to use reasonable care and take reasonable precautions to avoid lighting a fire of a kind which might cause the damage to property relied on by the prosecution.

In my view, the fire which was lit could be held, as it apparently was, to be of a kind which might cause damage to property if it was set and lit in the location where it was, and the appellant failed to use reasonable care and take reasonable precautions to ensure that it was completely extinguished and could not again rise from the ashes, so to speak, because that appears to be the only explanation for the fire flaring up again in the manner it did, so as to cause the damage which resulted.
As I say, this was not an issue debated at trial or raised by the appellant as an answer to the charge, and in those circumstances, as the point is not relied upon in furtherance of the appeal, I propose to say no more about it except to observe that, although I know of no authority upon the nature of the duty of care for which provision is made in s 444A (in either form under the section), the way in which that provision is referred to in s 23A and s 23B, and the way in which it is linked there to the provisions of Ch XXVII of the Code and the duties provided in the sections which are contained in that Chapter, would lead me to a tentative view about the interpretation of s 444A.
The duties provided by s 444A would be properly held to be breached if the conclusion was that the appellant's failure to use reasonable care and take reasonable precautions amounted to recklessness or gross negligence of the kind and degree which, in the view of the court, should expose him to punishment for a criminal offence: see, eg, R v BBD [2006] QCA 441; [2007] 1 Qd R 478; R v Clark [2007] QCA 168; (2007) 171 A Crim R 532.
The appellant's point about s 444A is a short one. He points out that that provision was introduced into the Code at the same time as s 445A, which is in the following terms:
445A. Breach of duty under s. 444A
A person who unlawfully omits or refuses to do any act which it is the person’s duty to do under section 444A is guilty of a crime, and is liable to imprisonment for 15 years.
The appellant suggests that s 444A only has application in relation to a case where an offence under s 445A is charged.
I see no reason to suppose that that is so. It seems to me that the fact that it is inserted in that part of the Code, Ch XLV: 'Preliminary matters', with the other sections which relate to liability for offences of criminal damage, and the way in which the duties created by s 444A are referred to in ss 23A and 23B, linked to the duties provided in Ch XXVII, supports the conclusion that s 444A applies generally to cases of damage to property in relation to matters of causation.
I must say, however, that the way in which the appeal has been framed, and the lack of reliance by the appellant on an incapacity to draw a conclusion of causation, makes the above discussion very much a matter of obiter dicta.
There are, of course, significant differences between the elements of the offence created by s 444 and, together, ss 445A and 445. Section 445 is as follows:
445. Damaging property
A person who unlawfully destroys or damages the property of another person without that other person’s consent is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.
What is required to establish the commission of an offence under those sections is either the unlawful omission to discharge one of the duties under s 444A, or the unlawful act of destruction of or damage to property. There is no requirement to establish that that result was brought about 'wilfully'. And that brings me to the nub of this case.
This prosecution turned on the magistrate's capacity to conclude that the act of the appellant in igniting the fire as he did was an act which was not only unlawfully done by which, ultimately, the property in question was damaged, but was an act done 'wilfully'.
As to that, s 443 provides:
443. Term used: wilfully destroy or damage
Where a person does an act or omits to do an act —
(a)intending to destroy or damage property; or
(b)knowing or believing that the act or omission is likely to result in the destruction of or damage to property,
and the act or omission results in the destruction of or damage to property, the person is regarded for the purposes of this division as having wilfully destroyed or damaged property.
An accused person acts wilfully to destroy or damage property if he intends that result or, in fact, knows or believes that the destruction of or damage to property is a likely result of his act or omission. To act wilfully is not necessarily to act intending the result, but may be established if the result is known to be likely or believed to be likely. We are concerned with the mental element in the commission of the offence, and it must be the accused's actual intention, knowledge or belief to be found as a matter of fact at the time of doing the act which results in the destruction of or damage to property.
That mental element can never be established merely by proving that the accused was negligent in doing the act which caused the destruction or damage, even if he is found to have been grossly negligent or to have acted recklessly. I have already sufficiently discussed the place in the scheme of these offences which such considerations may occupy. Wilfulness is an additional mental element which requires, if not an intention to cause the result, then actual foresight when the act was done that the result which does occur was likely.
I cannot resist the observation that the present form of s 443 defines the term 'wilfully' in terms which I recommended in my document 'The Criminal Code: A General Review' (1983). The present form of s 443 dates from the amendment of the Code, and other enactments, by the Criminal Law Amendment Act 1990 (WA) which, relevantly, came into operation on 14 February 1991.
The purpose was to end the difficulties of interpretation of criminal damage offences which were being encountered in this State and elsewhere in Australia which I discussed in 1983. The section settles in WA the debate about the meaning of the word 'wilfully', perhaps most comprehensively dealt with in Queensland in the difficult cases: R v Lockwood, Ex p. Attorney General [1981] Qd R 209 and R v T [1997] 1 Qd R 623.
The history was the subject of detailed discussion, including by way of reference to the relevant parts of my report, by Scott J in Pace v H (1994) 12 WAR 35. In that case H, who, coincidentally, was also dealt with in the Children's Court, had been found by the magistrate to have lit some meat wrappings inside a refrigerator in order to provide light after he had entered the house of the appellant. The respondent later left the property without extinguishing the burning wrapping paper.
On the evidence, the magistrate found the damage to property in respect of which the respondent could be convicted was confined to the wrapping paper and the contents of the refrigerator, but did not extend to damage to the house itself when the fire spread. In relation to that damage it was held that the evidence would not sustain the conclusion that the damage had been wilfully caused. The magistrate's decision was upheld by Scott J.

The decision of the appeal

I propose to take the two grounds together. At an early stage of his reasons, his Honour the magistrate correctly directed himself about the onus and burden of proof and the drawing of inferences of guilt from circumstantial evidence. As to the necessity to establish that the relevant damage to property was done wilfully, I have quoted the relevant paragraph of his Honour's reasons as taken from page 60 of the transcript. In short, his Honour held that the appellant did not intend to do the damage to the property of Red Rooster upon which the prosecution relied. Indeed, as has been seen, his Honour held that before leaving the place where the fire had been lit, the appellant acted to extinguish the fire and thought he had done so.
Nonetheless, his Honour held specifically that the appellant, 'both knew and believed that what he was about to do and then did was likely to result in the destruction of or damage to property'. His Honour did not identify the property he had in mind, but it seems to me that he thought that was unnecessary, provided he was satisfied beyond reasonable doubt that the appellant knew or believed, when he set the fire, that some damage to property was likely to be done.
His Honour was satisfied about that because he noted that the appellant had originally thought to light his fire across the road in the park, where it would be safe to do so without any risk of damage to property. It was his friend who climbed the fence and put the package in the plastic tunnel in the playground. His Honour also relied upon what the appellant had said in his statement when he falsely attributed the fire to a group of Aboriginal youths, and said he told them that they should not light the fire in that place, 'because you might set it on fire'.
In my opinion, to deal with that question generally in that way masked the true question of fact upon which his Honour had to be satisfied to the requisite standard. Before the appellant could be held to have wilfully damaged the playground equipment and the building which was the Red Rooster store, if, as seems to be accepted on all sides, he did not intend, by his conduct, to destroy or damage that property, it had to be proved beyond reasonable doubt that he knew or believed that that damage might occur at the time when he lit the fire. It was not a question to be asked in relation to property generally, but in relation to the property which was damaged. I would uphold the first ground of appeal upon which the appellant relies.
The question then becomes that which is ventilated by the second ground of appeal upon which the appellant relies. To put the point in the context of the Criminal Appeals Act 2004 (WA), the ground is that envisaged by s 8(1)(b), which enables an appeal to be brought on the ground that there has been a miscarriage of justice. In this case that conclusion depends upon the assertion that it was not open on the evidence to hold that the property with which the prosecution was concerned, generally the playground equipment and the building, was wilfully damaged by fire in that the appellant knew or believed that his act of setting fire to the paper package and cigarette lighters inside the package was likely to result in the damage that was done.
In Blechynden v Bogumil [2011] WASC 4, I said:
I have no doubt that it is open to an appellant to contend that the decision reached by the magistrate cannot be supported by the totality of the evidence, and therefore that the conviction constitutes a miscarriage of justice [10].
In relation to a provision such as s 30(3)(a) of the Criminal Appeals Act, which deals with an appeal against a verdict of guilty by a jury, as well as in a trial by judge alone, it is accepted that the test as to whether an appeal against conviction should be allowed because the guilty verdict is unreasonable or cannot be supported by the evidence (absent a conclusion by the appellate court that no substantial miscarriage of justice has occurred) is that stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 494. That test was restated in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 623 ‑ 624 [58], and it has recently been reaffirmed by French CJ, Gummow and Kiefel JJ in SKA v The Queen [2011] HCA 13 [11] ‑ 14].
The appellate court must itself make its own independent assessment of the sufficiency of the evidence to sustain the conclusion of guilt. The test is whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. If the appellate court has a doubt about the guilt of the appellant in the light of its consideration of the evidence, then it will uphold the appeal. In any case, in making its assessment the appellate court will bear in mind that it has not had the advantage afforded to the trial judge of seeing and hearing the witnesses give their evidence. That is not, of course, a factor in this case.
The respondent argues that it was open to the magistrate to reach the conclusion of guilt to which his Honour came. Counsel argued that the only reasonable conclusion was that the appellant lit the package when it was located in the tunnel so as to damage that part of the playground. He knew what the effect would be, in that the lighters would explode. He knew that the fire might ignite the plastic tunnel and spread, unless it was completely extinguished.
He knew it was possible for the flammable materials to reignite, despite the fact that he had doused the package with water. It is urged upon me that the conclusion to which I should come is that the only reasonable inference which could be drawn from all the evidence was that the appellant intended to damage the tunnel in the playground, or that he knew or believe that the act of starting the fire inside the tunnel was likely to result in such damage.
I am unable to accept that argument. It is to be borne in mind that there was no conflict in the evidence. The evidence about the appellant's state of mind primarily came from him and the statements he made, including the statement that unless thoroughly extinguished the fire might spread and damage property.
I have reviewed the evidence about the lighting of the fire and the place where the appellant did that. His intention, he said, was to cause the lighters to explode and make a loud noise like a firecracker, as he had done many times before. He said that when the fire was lit, the desired result occurred. He saw there was fire, and water was obtained and it was put out. At that stage there was no evidence that any damage had been done to the plastic tunnel. Certainly none was seen by the appellant. The water extinguished the fire, which was producing a red glow to the materials.
The appellant and his friend then left. There is no clear explanation for how the fire which caused the damage to Red Rooster property, the playground equipment and the building, got going, but it is thought that it must have reignited, presumably because the fire had not been so completely extinguished as the appellant supposed. There must have been some heat source adjacent to combustible material which the appellant did not see, but which, after some period of time, caused the fire to reignite spontaneously.
The crucial question then is whether it was open to the court to find, beyond reasonable doubt, that the appellant wilfully damaged the playground equipment and the building of Red Rooster because, when he lit the paper package, he either intended to damage the property in question or knew or believed that lighting the paper package was likely to result in that damage being caused.
In my opinion, the evidence is simply incapable of sustaining that conclusion by way of inference, beyond reasonable doubt. It is accepted that the appellant did not intend to damage any property, and nothing appears to show that when he extinguished the fire and left the area, he knew or believed that his earlier act of lighting the fire was likely to result in the damage occurring because the fire might reignite. Indeed, in my view, all the evidence points firmly to the opposite conclusion.
In those circumstances, I must allow the appeal, quash the conviction and set aside the orders made by the Children's Court. I award the appellant his costs of the appeal.