Hanna v The Queen

[2009] NSWCCA 195

New South Wales
Court of Criminal Appeal

CITATION:	Hanna v R [2009] NSWCCA 195
HEARING DATE(S):	8 July 2009
JUDGMENT DATE:	5 August 2009
JUDGMENT OF:	McClellan CJatCL at 1; Kirby J at 53; Johnson J at 54
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - dishonestly damage property by means of fire - circumstantial Crown case - whether jury verdict unreasonable or cannot be supported having regard to the evidence - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Burrell v The Queen [2007] NSWCCA 65 Dodds v R (2009) NSWCCA 78 The Queen v Hillier [2007] 228 CLR 618
PARTIES:	Louis Hanna (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/15936
COUNSEL:	T A Game SC (Appellant) N Noman (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0737
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	23 May 2008

2007/15936

McCLELLAN CJ at CL
KIRBY J
JOHNSON J

WEDNESDAY 5 AUGUST 2009

HANNA, Louis v R

Judgment

: The appellant was tried before a jury and convicted of one count of dishonestly damaging property by means of a fire contrary to s 197(1)(b) of the Crimes Act 1900. The indictment read as follows:

“On 12 September 2006 at Croydon Park in the State of New South Wales did dishonestly damage by means of fire premises at 12 Rawson Street, Croydon Park with a view to making a gain by making a claim against his insurance policy with AAMI insurance for the premises for Louis Hanna.”

2 The appellant was sentenced to periodic detention for 2 years 8 months with a balance of term of 2 years.

3 An appeal is brought against the conviction only. Although the appellant originally filed seven grounds of appeal, all but ground 7 were abandoned. Ground 7 alleges that the verdict cannot be supported having regard to the evidence.

The Crown case

4 The appellant lived with his wife at the premises at 12 Rawson Street, Croydon Park. The premises were damaged by fire which occurred at about 1 pm on 12 September 2006. The Crown case against the appellant was entirely circumstantial.

5 The forensic evidence indicated that the fire had been deliberately lit. Accelerant was found in 3 separate locations. There was no evidence that the premises had been forcibly entered. There was an unlocked window at the front of the house. A person entering through that window would have had to fortuitously come upon it. They would have been visible from the street. The forensic evidence indicated that the fires were lit commencing at the front of the house, so that the offender must have exited through the rear door.

6 The fire was first reported by a neighbour Ms Winter-Myers who gave evidence that she had observed smoke coming from the house but delayed for 15-20 minutes eating her lunch before ringing triple O. The triple O call was made at 1.58 pm. She put the time at which she observed smoke as being significantly earlier. However, the Crown accepted that the evidence which she gave as to times was not accurate. Nevertheless, the triple O call can be accurately timed and accepting that she had lunch between her first observation and making the call she probably observed the smoke before 1.45 pm.

7 Evidence was given by a fire brigade investigator, Inspector Sedgwick. He said that the time from the pouring of the accelerant to the extinguishing of the fire was estimated to be between 16 and 22 minutes. The fire was under control by 2.13 pm. The inspector said that the time from start to finish of the fire was approximately 12 to 17 minutes which would place the start of the fire at approximately 1.56 pm. However, as the fire was well alight by the time of the triple O call the estimate of 1.56 pm is likely to be at least to some degree inaccurate.

8 The appellant was employed by Chemgold, a jewellery manufacturer, where he had worked for a number of years. On the day of the fire the appellant arrived at work prior to 7 am and left at approximately 1 pm. His asserted reason for leaving early that day was that he had to take his wife, who was pregnant, for an ultrasound.

9 The appellant did not give evidence at his trial but had participated in an ERISP on 12 September 2006. In that interview he said that he had purchased the property in February 2006 and lived there with his mother and his wife. On the day of the fire he said that he left work at about 1 pm and went home to obtain money and then left. He said that he parked his motor vehicle at the front of the house and entered and exited through the back door, which was his usual mode of access. He said that having left home he went to Bunnings, because he needed some gloss enamel. He then went to a car wash. Having washed his car he went onto his father-in-law’s petrol station. He was at the petrol station when a call came about the fire at his home and he immediately returned there. He said that at about 4 pm he took his wife to the specialist in Campsie.

10 The appellant was also interviewed by a private inquiry agent acting on behalf of the insurance company. The transcript of that interview was tendered in evidence. He said to the inquiry agent that on the day of the fire he had left work early and thought that he would take the opportunity to relax and wash his car before taking his wife to the specialist. He said that his reason for returning home that day was to obtain the money to pay for his wife’s ultrasound. At that time he said that at the same time he had taken his wife’s jewellery, which had been cleaned, home and put it in the top dresser drawer. He said that he had not wanted to carry it on him during the rest of the day. Although the appellant asserted that he had left the jewellery in the dresser drawer, the implication being that it was stolen by the arsonist, there was other jewellery on top of the dresser which remained after the fire.

11 The appellant was observed to have left his work place at 1.02 pm. The police evidence was that it would take between 22 and 26 minutes to drive to his home. Accordingly, the earliest the appellant could have been at his house was 1.25 pm. The appellant said that he was inside the house for about 3 minutes.

12 The police evidence was that it took 9 minutes to drive from the appellant’s house to the Bunnings store. He was recorded on the CCTV camera at the store at 2.06 pm and, accordingly, could still have been at his home at around 1.57 pm.

13 The appellant’s property was insured with Australian Associated Motor Insurers (“AAMI”). The policy commenced on 27 January 2006. The sum insured being $359,500. On 30 August 2006 AAMI changed the conditions of the policies of all of its customers so that, irrespective of the sum insured, in the event of loss they would restore the customer’s property to its previous condition irrespective of the cost. The appellant also had contents insurance with AAMI effected on 2 April 2006 in the sum of $75,000 and in addition personal valuables insurance in the sum of $54,350. There was an overall limit of $5,000 for valuables per claim and a limit of $1,000 for an item of jewellery.

14 The appellant’s wife, Judy Hanna gave evidence at the trial. They had been married since 5 February 2005. They completed the purchase of the property at 12 Rawson Avenue at the end of February 2006. It was purchased for $560,000 and was mortgaged for approximately $530,000. The couple were in a sound financial position. Mrs Hanna worked as a teacher. On the day of the fire she finished work at 3 pm, a little earlier than normal, as she had to attend the doctor’s appointment. She had intended to go home and have a shower and she had arranged for the appellant to come home and go with her to the doctor.

15 Mrs Hanna said that after she left the school on the afternoon of 12 September she received a phone call from the appellant in which he told her not to meet him at home but that she should go to her mother’s house. By the time she arrived at her mother’s house she was aware of the fire. She immediately returned to her own home and, although upset, went with the appellant to the doctor’s appointment.

16 Mrs Hanna said that on the day before the fire she had asked the appellant to have some of her jewellery cleaned and placed it on a bedside table for him to take with him to work. The items were a diamond ring, a necklace and an eternity ring. When she returned to the house on the day of the fire she asked the appellant where her engagement ring and jewellery were. She said that he told her that he had put it in the dresser drawer where he usually leaves it. Although some other items of her jewellery were retrieved from the house her engagement ring, eternity ring and necklace could not be found.

17 Mrs Hanna described her husband as very responsible and reliable. She said they had a happy and supportive relationship. She said on the day of the fire that the household heater was off. She said that when they had moved into the house they had painted the whole house, washed the carpets, put in a new air conditioning system, replaced light fittings, put screens on the windows and made various other minor modifications, including the installation of an alarm system. In the fire Mrs Hanna lost her wedding glasses, her wedding dress, wedding photos and DVD and family photos. Because their insurance claim was rejected following the fire they sold an investment property which she owned to pay for the repairs to the house.

18 The appellant had no prior criminal convictions. Apart from his wife, his employer Mr Mannel Kalergis and his mother-in-law Mrs Rose Taouil gave evidence of his reliability and integrity. He was entitled to the benefit of his good character when considering the prosecution case against him.

19 There was another piece of evidence which was controversial at the trial. The appellant’s house backs onto a reserve. Mr Keevil, a neighbour, gave evidence that he did not notice anything in particular on the ground when he went into the reserve at about 8 am on the morning of 12 September. However, later that day, somewhere between 1 and 3 in the afternoon he noticed some fresh tyre marks in the reserve. The ground was wet and he saw a pair of tyre tracks that went along the fence line.

20 The tyre marks were observed by Det Duncombe. She described them as being “deeper” at the point closest to the back fence of the appellant’s property. She believed they were recent. The police measured the width of the tyre mark in the grass at 205 mm. The appellant’s vehicle had a tyre width of only 160 mm. However, the distance between the middle of the two tyre marks, the wheel base measurement, was 1500 which was the same as the wheel base measurement of the appellant’s vehicle. The prosecution’s evidence was that if the marks were made by the appellant’s vehicle the difference in the measured tyre width could be explained by the fact that the ground was very boggy and wet. It was suggested that the wheel bearing upon wet ground would make a wider impression than if the ground was dry. There was evidence that the force of the wheel marks on the ground was consistent with a vehicle leaving the reserve in some haste.

21 After leaving the Bunnings store the appellant took his vehicle to a car wash before going to his father-in-law’s petrol station. He said that he took his car to be washed every 2 to 2½ weeks. When interviewed by the investigator he said that on this occasion he thought he had washed the whole top of the roof, bonnet and boot. There was CCTV footage of the appellant washing his car which indicated that he was engaged in washing it for at least 10 minutes. Det Duncombe alleged that the appellant “spent the majority of the time concentrating on the lower portion of the vehicle when he was cleaning it.” When interviewed by an AAMI representative the appellant said that he had not washed the wheels.

22 Det Kirkwood gave evidence that she had inspected the underside of the appellant’s vehicle on the evening of the fire and observed grass clippings and mud in varying degrees. She said that she saw what looked like fresh grass and mud caked onto the body work of the vehicle under the front driver’s side wheel arch. Another police officer said that he saw grass cuttings and mud under all four wheel arches.

23 A botanist examined grass and mud samples taken from the vehicle and compared them with samples taken from the grass and mud in the reserve. The evidence was that although there were columns of dried up grass clippings throughout the reserve there were no grass clippings on the appellant’s lawn. The grass clippings found on the underside of the appellant’s car were consistent with those found in the reserve.

24 Shortly before the appellant’s trial a brick was apparently thrown through a window of the appellant’s house. When the brick was retrieved it was found to have paper wrapped around it which had been held in place by sticky tape. The paper had written on it “suck shit you wog.” The appellant and his wife said that they had been woken by the sound of the brick smashing the window. The Crown case was that the appellant was responsible for the brick and that it was thrown as a diversion to suggest the appellant had some enemies who may have been responsible for the fire.

The appeal

25 The appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt that he had committed the offence of which he was found guilty. It was further submitted that this Court should itself have a reasonable doubt and should intervene and quash the conviction.

26 The principles to be applied have been discussed on many occasions: Dodds v R (2009) NSWCCA 78:

“The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 18 1 CLR 487; MFA v R (2002) CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court’s task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance:

‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

27 Where the Crown presents a circumstantial case all of the circumstances must be considered. The case must not be considered piecemeal: The Queen v Hillier [2007] 228 CLR 618 at 637-638 [46]-[48] and see the discussion in Burrell v The Queen [2007] NSWCCA 65 at [162] ff.

28 The appellant’s argument proceeds by a number of steps. It was submitted that the appellant’s presence at Bunnings was, taken overall, exculpatory. The prosecution evidence was that the burn time of the fire was approximately 12-17 minutes and it was accepted that the fire was extinguished at 2.13 pm. This would put the time of ignition somewhere between 1.56 and 2.01 pm. Because the call to emergency services was made at 1.58 pm it was submitted that the time of ignition must have been in the narrow time frame 1.56 to 1.58 pm. It was known that the appellant entered Bunnings at 2.05:15.

29 The actual time to travel from the appellant’s house to Bunnings was 9 minutes but it was submitted that the journey must have taken longer given that the appellant would have to start his vehicle, park it at Bunnings and then walk from the carpark to the premises where he was observed on the CCTV camera. Accordingly, it was submitted that it was unlikely that the appellant was present when the fire in his house was ignited.

30 With respect to the tyre marks in the reserve the appellant submitted that it could not be established that the tyre marks which were found were made by his car. Although it was asserted by a police officer that because the ground was wet a wider imprint would have been left it was emphasised that no empirical assessment of the situation had been undertaken.

31 With respect to the insurance policy it was submitted that the appellant had obtained insurance in the ordinary course. There was no evidence that the appellant was aware that AAMI had changed the terms of the policy to provide a prospectively greater return under it. Furthermore, as the evidence was that the appellant was not in debt, there was evidence of surplus monies in his bank account, there was no pressing reason for the appellant to seek to defraud the insurance company. It was submitted that it would be extraordinary that on the day of his wife’s ultrasound for her pregnancy the appellant would endeavour to burn down their double brick house. The marriage was a happy one and it was submitted that it was most unlikely that the appellant would have sought to destroy the house which contained personal property of significance and of sentimental value both to himself and his wife.

32 It was further submitted, as was undoubtedly the case, that the appellant was of prior good character and there was nothing to suggest that he would have taken the extraordinary step of burning the family home in order to obtain insurance money.

33 I have given careful consideration to the appellant’s submissions. However, I am satisfied that it was open to the jury to convict and I am not persuaded that a miscarriage of justice may have occurred. To my mind the Crown case was compelling.

34 If the appellant did not light the fire it must have been lit by a person who, carrying the necessary accelerant, was able to enter the house through an unlocked window shortly after the appellant had left without being observed by any person. The offender must have then laid the accelerant in three places, taken jewellery from a shut drawer leaving other jewellery undisturbed and exited through the rear door of the property.

35 An analysis of the timing of the appellant’s movements at about the time of the fire does not exclude the possibility that it was the appellant who lit the fire. Of particular significance is the fact that it is known that he returned to the house in circumstances which he explained by the need to retrieve money to pay for his wife’s medical appointment. However, that explanation is at odds with the fact that his wife was intending to herself return home where she was to be picked up by the appellant to attend at the doctor’s surgery. There was simply no reason for him to go home to retrieve the money.

36 In the circumstances the lack of any sign of forced entry at the premises makes it very unlikely that a stranger lit the fire. The suggestion that items of jewellery were taken from the dresser whereas other items, which were exposed to view, were not taken points strongly to the fact that the fire was not lit by a stranger. Although the evidence of a vehicle using the reserve and leaving in haste would not of itself indicate that the appellant had driven his vehicle onto the reserve that afternoon, the fact that he attempted to clean it, but nevertheless mud and grass clippings were found on the car, the latter being consistent with clippings found on the reserve, supports the Crown case. The discrepancy in the size of the tyre marks compared with the tyres of the appellant’s vehicle can to my mind be logically explained by the tyres sinking into wet ground. In any event the wheel base measurement obtained from the tyre marks matched the measurement made of the appellant’s vehicle.

An additional argument

37 Although only faintly suggested in the written submissions filed on behalf of the appellant at the hearing of the appeal senior counsel submitted that the Crown had failed to prove a case consistent with the charge as framed in the indictment. As I have indicated the indictment charged that the appellant had damaged the premises “with a view to making a gain by making a claim against his insurance policy with AAMI Insurance for the premises.” It was submitted that in so far as the Crown sought to prove that the appellant was motivated by a desire to recover insurance monies for the lost jewellery the case must fail. Because the jewellery was not in the premises, the Crown alleging that the appellant had removed it, it could not be damaged by fire.

38 The submission was apparently prompted by a paragraph in the Crown’s written submissions in the appeal which asserted that at least one motivation of the appellant was to claim for the lost jewellery. However, consideration of the record of the trial confirms that the Crown did not advance this case. The Crown case at trial was framed in terms of damage to the premises.

39 It was further submitted by the appellant that the case advanced by the Crown at the trial included the proposition that the appellant had knowledge of the change in the conditions of the AAMI Insurance by which the policy provided for the full replacement of the house whatever the sum insured and that it was that change which was the appellant’s motivation to destroy the house. It was submitted that because the Crown could not prove beyond reasonable doubt that the appellant had knowledge of the change the jury should have acquitted the appellant.

40 Reference at the trial to the change in the conditions of the insurance policy was limited. In his closing address the prosecutor said:

“Of course this accused had building insurance didn’t he members of the jury. Cover that was changed by the insurance company just a couple of weeks before the fire happened from a fixed sum of $359,500 to the complete cost of replacement of the building and fittings. Mr Cooper told you that all affected customers, that is customers affected by that change including the accused, Mr Hanna, was notified about the change by letter that was posted out some time after 30 August 2006. We’ll never know if the postman delivered the letter will we.”

41 Although in these remarks the prosecutor referred to the change in the insurance policy he did not make a submission that the jury could be satisfied that the appellant was aware of that change. Whatever may have been the position earlier in the trial it is apparent that by the conclusion of the prosecutor’s address whether the appellant had knowledge was not an issue. This is explained by the course taken by defence counsel at the trial.

42 When he opened to the jury the appellant’s counsel made no issue of the appellant’s knowledge of the change in the terms of the policy. His closing address accepts that the appellant knew of the changes in conditions. His argument was that because of the form of the construction of the house, it was double brick, it would be unlikely to be destroyed by a fire entitling the appellant to a claim under the policy for a total loss of the dwelling. Counsel said:

“Here he is he decides and one would think unbeknownst to his wife who has got extremely upset in relation to it, in fact adversely affected physically, he decides to burn his house down. What, for the pleasure of getting a replacement? This is not where he gets a lot of money and can build a mansion because he has got a certain amount of money and keeping in mind this is a double brick home. It would be extremely unlikely that any fire is going to lead to a rebuilding of a double brick home. Not at all.”

43 The way the case was contested is confirmed by the trial judge’s summing up. Her Honour reminded the jury that the Crown case was circumstantial in which the ultimate conclusion that the Crown seeks to draw from the evidence “is that it was the accused who set and lit the fire or fires.” Her Honour reminded the jury that they must be satisfied “beyond reasonable doubt that the conclusion that the accused is guilty of the offence can actually be drawn from the facts which have been proved to you by the Crown.” Her Honour then reminded the jury that the conclusion that it was the accused who set and lit the fires must be the only conclusion open on the facts.

44 Her Honour then gave the jury guidance as to how they should approach their fact finding task. She identified the first element of the Crown case being that it was the appellant who lit the fire and reminded the jury of the circumstances on which the Crown relies to prove the charge. One of those circumstances related to the insurance policy in respect of which her Honour said:

“The next one members of the jury, the fact that while the accused and his wife were not in dire financial straits, his situation would have been improved by replacement of a new house for an old house, which was the policy of AAMI, recently changed as I am sure you will recall.”

45 By way of summary of her remarks her Honour later said:

“They are the major ones (circumstances) that I have noted from the Crown’s address members of the jury and the Crown says that that combination of circumstances is such, and other matters, is such that you would be satisfied beyond reasonable doubt that the accused damaged the premises at 12 Rawson Street, that is the first element in the document that I have provided you and that he did so dishonestly with a view to making a gain for himself by making a claim against his insurance policy with AAMI.”

46 Her Honour then directed the jury’s attention to the response made by defence counsel, on behalf of the appellant. This included the fact that the appellant was not in financial strife. No reference was made to any knowledge in the appellant of a change in the conditions of the insurance policy.

47 Having dealt with these matters her Honour then turned to what she described as the “second element” of the charge, being if the appellant damaged the property by fire did he do “so dishonestly with a view to making a gain for himself by making a claim against his insurance policy.” Her Honour said:

“The Crown case is that if you are satisfied beyond reasonable doubt that the accused set fire to the premises that you would also be satisfied beyond reasonable doubt that he did so dishonestly to claim money from his insurance policy and that when you apply the standards of the community you will have little difficulty in finding that that was done dishonestly. Of course, Mr Earl on behalf of the accused has not addressed this issue because Mr Earl’s argument is that the Crown will fail on this very first element and of course then you will not need to consider this second element. However, the Crown does have to satisfy you of both essential elements, that is why the word ‘and’ is there, and you do have to be satisfied beyond reasonable doubt of this second element as well as the first. Essentially the Crown relies on the same evidence that I have already taken you to, to satisfy you beyond reasonable doubt, not only that he set and lit the fire, but that he did that dishonestly to claim on his insurance policy. In other words to have the home rebuilt, the insurance policy having been recently changed to in effect provide for a new home to replace the old home if it were damaged in some way or destroyed in some way.
In essence the Crown submitted that the first element would be proved beyond reasonable doubt and that finding would flow through to the second element and that you would be satisfied beyond reasonable doubt of the second element and then of course your verdict would be guilty. As I say, Mr Earl did not address that second element because of his submission the Crown case will fail at the very first hurdle, that is element one.”

48 The fact as her Honour reminded the jury, that Mr Earl, counsel for the appellant at the trial, did not address the jury in relation to the element of the appellant making a dishonest claim was consistent with the defence position throughout the trial. Evidence of the change in the conditions of the AAMI insurance policy was given by Mr Cooper, who was the manager of the specialist claim group of that company at the relevant time. His evidence, which was not challenged by the defence, was that from 30 August 2006 the insurance policies were altered to extend to cover the replacement cost of the entire building. He said that the appellant and his wife and other customers of the company were notified of that change by a “launch letter” some time between 30 August and 10 September 2006.

49 Mr Cooper was not cross-examined to suggest that his evidence should not be accepted. Defence counsel never suggested to the jury that they could not be satisfied that the appellant was not aware of the change in the conditions of his policy.

50 To my mind it was open to the jury to conclude that the appellant was aware of the change in the policy conditions. If as Mr Cooper’s evidence indicates he received notification of the change early in September, the fact that the fire occurred on the 12^th of that month is an extraordinary coincidence. No doubt it was for that reason that the appellant’s counsel at trial did not put the matter in issue and did not raise it with the jury. Any focus upon the sequence of these events could only have operated adversely to the appellant.

51 Even if I had concluded that it was not open to the jury to conclude that the appellant was aware of the change in policy condition I am still satisfied that the Crown has proved all of the elements of the charge in the indictment. The essence of the Crown case was that the appellant had set fire to the property so that he could claim on the insurance. If the Crown proved that the appellant was responsible for the fire, and I am satisfied that it did, the evidence would allow for no other explanation for his actions but an expectation that he would recover monies under the insurance policy.

52 The appeal should be dismissed.

53 KIRBY J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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