Moore v The Queen
[2002] WASCA 332
•5 DECEMBER 2002
MOORE -v- THE QUEEN [2002] WASCA 332
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 332 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:260/2000 | 7 & 8 NOVEMBER 2002 | |
| Coram: | TEMPLEMAN J WHEELER J ROLFE AJ | 5/12/02 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DONALD JOHN MOORE THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Arson and conspiracy Guilty plea Whether recantation was credible in all the circumstances Whether fresh evidence was credible Whether confessions were voluntary |
Legislation: | Nil |
Case References: | Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 Mickelberg v The Queen (1989) 167 CLR 259 Pileggi v The Queen [2001] WASCA 260 Ryll v The Queen [2001] WASCA 185 Azaddin (1999) 109 A Crim R 474 Carter v Evans (1990) 3 WAR 94 Gallagher v The Queen (1986) 160 CLR 392 Maxwell v The Queen (1996) 184 CLR 501 Mickelberg v The Queen (1989) 167 CLR 259 Nuttall v The Queen, unreported; SCt of WA (Malcolm CJ); Library No 920090; 26 February 1992 R v Anderson (1997) 92 A Crim R 348 State of Western Australia v Landers [2000] WASCA 125 Stock v The Queen [2000] WASCA 196 Tihanyi v The Queen [1999] WASCA 226 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MOORE -v- THE QUEEN [2002] WASCA 332 CORAM : TEMPLEMAN J
- WHEELER J
ROLFE AJ
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Arson and conspiracy - Guilty plea - Whether recantation was credible in all the circumstances - Whether fresh evidence was credible - Whether confessions were voluntary
Legislation:
Nil
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr I L K Marshall
Respondent : Mr B Fiannaca
Solicitors:
Appellant : Judith Wickham & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996
Mickelberg v The Queen (1989) 167 CLR 259
Pileggi v The Queen [2001] WASCA 260
Ryll v The Queen [2001] WASCA 185
Case(s) also cited:
Azaddin (1999) 109 A Crim R 474
Carter v Evans (1990) 3 WAR 94
Gallagher v The Queen (1986) 160 CLR 392
Maxwell v The Queen (1996) 184 CLR 501
Mickelberg v The Queen (1989) 167 CLR 259
Nuttall v The Queen, unreported; SCt of WA (Malcolm CJ); Library No 920090; 26 February 1992
R v Anderson (1997) 92 A Crim R 348
State of Western Australia v Landers [2000] WASCA 125
Stock v The Queen [2000] WASCA 196
Tihanyi v The Queen [1999] WASCA 226
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1 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be delivered by Rolfe AJ. I am in general agreement with those reasons. However, as we are being asked to make a credibility finding, I wish to give my reasons for the view I have reached.
2 Donald John Moore asks the Court to set aside his conviction, because of fresh evidence from Michael Robert Bell, to the effect that he did not light the fire at Mr Moore's business premises.
3 The question for this Court is whether there is a significant possibility that if Mr Bell's evidence at trial had been as it is today, the jury, acting reasonably, would have acquitted Mr Moore: Mickelberg v The Queen (1989) 167 CLR 259 at 273. The question is somewhat artificial in this case, because Mr Moore pleaded guilty and Mr Moore's application is based on the proposition that he could not have been guilty if Mr Bell did not light the fire. I accept that proposition for present purposes, although it may be too simplistic.
4 It ignores the possibility that Mr Bell may have been acting in concert with another, or others, who actually set fire to the paper. In those circumstances, if Mr Bell had been acting on Mr Moore's instructions, Mr Moore would still be guilty, even though, strictly, Mr Bell did not light the fire.
5 If Mr Moore had pleaded not guilty, the question for the jury at his trial would have been whether they were satisfied beyond reasonable doubt of the truth of Mr Bell's confession made during the course of a video-recorded interview with police officers on 29 October 1998.
6 The jury would have been directed that even if they did not positively believe Mr Bell's latest evidence, they could not be satisfied of his guilt if that evidence might be true, so as to raise a reasonable doubt as to the truth and accuracy of his confession.
7 In these circumstances, it is necessary to consider Mr Bell's evidence, given by affidavit and by video link for the Court.
8 In summary, Mr Bell now says he confessed to police officers in October 1998 because, shortly before the interview, he was subjected to improper pressure by the police officers who interviewed him, when he was withdrawing from heroin and was therefore vulnerable.
9 I accept that Mr Bell was a heroin addict at the time, but having viewed the video record of interview, I do not accept he was then
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- withdrawing from the effects of heroin. Mr Bell did not appear to exhibit any of the symptoms he described in his recent evidence. Further, I accept the evidence of Detective Senior Constable Scantlebury, that Mr Bell did not withdraw from heroin until after the interview. I accept that Mr Bell then required the medical assistance which he obtained at Royal Perth Hospital.
10 I also accept the evidence of Detective Scantlebury and Detective Sergeant Lynch, that no improper pressure was placed on Mr Bell. Furthermore, having heard the evidence of those police officers, I do not believe Mr Bell's evidence about the police surveillance outside the Red Castle Motel in Belmont. It was that surveillance, according to Mr Bell, which provided the police officers with the information they used to exert pressure upon him.
11 Mr Bell not only confessed to police officers. According to Mr Moore, in his affidavit of 23 March 2001, Mr Bell confessed to him also. In par 84 of the affidavit, Mr Moore recounted the effect of a conversation he had with Mr Bell before his arrest in which Mr Bell described his attempts to remove and cut fuel pipes from the truck which was in Mr Moore's business premises at the time of the fire. Mr Bell told Mr Moore he was able to remove the fuel pipes, with some difficulty and that having done so, he walked to the front of the truck, set fire to a wool bale full of paper using a cigarette lighter and then set a second bale alight. Mr Bell said he watched the flames grow to about six to eight feet and that as the fire "kicked along" he left quickly.
12 Mr Bell described his activities in the same way to police officers during the course of the interview. However, Mr Bell then said he had not touched the truck.
13 Despite that confession, according to Mr Moore, Mr Bell also told him, before his arrest, that "Five Strand (Kevin Tayleforth) should go to gaol for this because he knows who lit the match".
14 Having given careful consideration to Mr Bell's evidence, and the various inconsistencies to which I have referred above, I do not believe that he confessed to lighting the fire as a result of improper pressure placed upon him by police officers when he was withdrawing from heroin.
15 Having regard to the serious doubts I have about Mr Bell's credibility generally, I do not think a jury, properly directed, would place any weight on Mr Bell's recent recantation. In other words, I am of the view that if
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- Mr Moore had pleaded not guilty and stood his trial, the jury would have been satisfied beyond reasonable doubt that Mr Bell did light the fire.
16 The Crown case against Mr Moore would have been based on a conspiracy, or on s 7(d) of the Criminal Code. As to that; Mr Moore admitted, as he still admits, that he counselled or procured Mr Bell to commit the offence with which he was charged.
17 In those circumstances, it appears that Mr Moore's only defence would have been that Mr Bell acted in excess of his authority. This is a matter raised by Mr Moore for the first time in the present proceedings. He now contends that Mr Bell was not authorised to light the fire until after midnight on 7 - 8 October 1998: and not at all if Mr Moore's second truck was parked outside the business premises.
18 The evidence about this qualification to Mr Bell's instructions, although given for the first time only recently, is not, strictly, new evidence. If true, that evidence was well-known to Mr Moore and could have been given at trial had Mr Moore pleaded not guilty.
19 Even if this was new evidence, it remains the fact that Mr Moore made no mention of it when interviewed by police officers on 29 October 1998: and this, despite the fact that he was questioned closely about his discussions with Mr Bell on the night of the fire.
20 Further, Mr Moore told the police officers that since the fire, Mr Bell had been pressing for the payment of his share of the proceeds of the insurance money. If Mr Bell acted in excess of his authority, it is surprising that Mr Moore made no complaint at the time.
21 If Mr Moore had stood his trial, he could not have been convicted unless the jury was satisfied about the truth and accuracy of his confession. Given his evidence about his financial difficulties, the arrangement he made to insure his stock, his agreement with Mr Bell that Mr Bell would set fire to the stock and be given a share in the proceeds of the insurance claim, and Mr Bell's admission that he had started the fire, I consider that the jury, properly directed, would have been satisfied as to the truth and accuracy of Mr Moore's confession. In my view, Mr Moore's later evidence about his instruction to Mr Bell not to light the fire until after midnight would not have raised a reasonable doubt about Mr Moore's guilt.
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22 In all the circumstances, I am satisfied that there has been no miscarriage of justice and that Mr Moore's application for leave to appeal should be dismissed.
23 I wish to emphasise that my conclusion is based on the evidence which is properly before the Court on this application. I say that because in his affidavit dated 25 May 2001, under the heading "Investigations following my imprisonment", Mr Moore refers to information he was given while in prison, by a fellow prisoner who said about Mr Bell that "he set you up and then double-crossed you. He got paid by the opposition".
24 It was no doubt this information which prompted Mr Moore to request Detective Sergeant Lynch to visit him at Woorooloo Prison. Although Detective Sergeant Lynch was unable to recall the exact conversation, I accept his evidence that Mr Moore told him he felt Mr Bell had double-crossed him and that someone else had started the fire, and not Mr Bell.
25 I accept that Mr Moore is deeply suspicious of Mr Bell. His suspicions may be justifed. However, the evidence to which I have referred is inadmissible. It is no more than speculation based on inadmissible hearsay. This Court is not conducting an investigation or an inquiry. Our role is to adjudicate upon Mr Moore's application in the light of the admissible evidence. We cannot act on suspicion.
26 WHEELER J: I agree with the reasons to be published by Rolfe AJ and have nothing further to add.
ROLFE AJ:
Introduction
27 The appellant, Mr Donald John Moore, for whom Mr I L K Marshall of counsel appeared, is presently aged 69 years. He was the principal director of Recycling International Pty Ltd, trading as Moore Waste Paper Services, which, prior to 7 October 1998, engaged in the business of collecting scrap and other paper suitable for recycling and on-selling it to recyclers. The business was not particularly successful and, in early 1998, he said it was "totally devastated" when he was excluded from certain premises and lost stock and plant, which was uninsured. In July 1998, premises at Unit 3, 124 Briggs Street, Carlisle, ("the business premises"), were rented and, by late July or early August 1998, Mr Moore had made
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some progress in resurrecting part of the business and had put in train steps to rearrange his insurance cover, although he said that the business "was struggling".
28 For some time prior to 7 October 1998, Mr Moore had known Mr Michael Robert Bell, who was then a heroin addict, during which time Mr Bell had worked for Mr Moore or his company for some periods and was doing so immediately prior to 7 October 1998. He needed between $50 and $100 per day to buy heroin and, I am satisfied, was in a quite parlous financial position. His practise in October 1998 was to purchase heroin between about 9.00 am and 9.30 am each day and use it.
29 From time to time, Mr Moore and Mr Bell discussed their monetary problems, which, so far as Mr Moore or his company were concerned, were exacerbated by his assertion that the police would not investigate what he claimed to have been a substantial burglary at premises he had previously occupied. Mr Moore said that in these circumstances and in this frame of mind, he pondered that one solution would be to insure the paper stock and then have it set on fire, so that he would obtain the insurance moneys. I have no doubt that he discussed this idea, which was quickly formulating into a plan, with Mr Bell and told him that he would pay him 10 per cent of the insurance proceeds if he would set fire to the paper, but that this was not to be done before midnight on an appointed day, nor if two trucks were then parked in the business premises.
30 Whilst this plan may have been born out of some initial frustration on Mr Moore's part, there is no doubt that within a short time, it became more attractive as an actual solution to the financial difficulties. Mr Moore arranged, through his insurance brokers, to add an endorsement to his existing policy for, inter alia, fire and perils to stock and contents in the sum of $150,000 and for cover for five motor vehicles. This was duly done effective from 2 October 1998.
31 On 7 October 1998, Mr Moore and Mr Bell worked and, after work, returned to Mr Moore's home where they had dinner with Mrs Moore. Mrs Moore went to choir practise at about 7.30 pm and Mr Bell left, it is asserted, at 8.45 pm. Mr Moore remained at home and had various telephone conversations. He alleged that the consequence of those conversations was that he was given some hope that he may be able to obtain further finance and other assistance for the business. This, so he asserted, placed him in a dilemma. There can be no doubt that it was his understanding that Mr Bell was going to set the paper alight that night. However, Mr Moore's instruction to Mr Bell, which, according to
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- Mr Moore Mr Bell confirmed as he left, were that the fire was not to be lit before midnight. There was the further instruction that the fire was not to be lit if two trucks were at the premises. When Mr Bell left, one of the trucks was at Mr Moore's home.
32 After Mr Moore received what he asserted to be the favourable news, he wanted to drive the other truck to the business premises so that Mr Bell would not go ahead with the fire. However, Mrs Moore had not returned from choir practise. The significance of this was that Mr Moore wanted her to drive from their home to the business premises in their car, so that when he left the truck there, he would have a means of returning home. As both Mr and Mrs Moore had mobile telephones, there was no cogent explanation as to why Mr Moore could not have telephoned Mrs Moore and asked her to come to the business premises and collect him.
33 One version of events given by Mr Moore was that his wife returned home, whereupon he began to get ready to drive the truck to the business premises. Another version, which he gave to the police in a video recorded interview, was that he did no such thing, but prepared to go to bed and, to enable him to sleep, took a Valium which his doctor had prescribed the previous day. He was unable to explain satisfactorily, so far as I am concerned, the discrepancies between these two versions. Mrs Moore tended to corroborate the first.
34 At about 10.30 pm, Mr Moore received a telephone call from the fire brigade authorities to advise that there was a fire at the business premises, which looked as if it had been alight for about 2-1/2 hours before the fire brigade arrived. If the fire had been lit by Mr Bell, then he had disobeyed the instructions that the fire was not to be lit before midnight and until two trucks were at the premises. The result was that a quantity of paper was burnt and much of it suffered water damage in quelling the fire. Mr Moore attended at the business premises that night and, in the presence of Detective Lynch, was told by a police officer attached to the Arson Squad, Mr Carr, that the fire had been burning for 1-1/2 to two hours before it was discovered shortly before 9.25 pm.
35 On the following morning, although in his video recorded interview to the police Mr Moore said it may have been in the afternoon, he telephoned Mr Bell to tell him that the fire had occurred. At that time, and indeed for quite some time thereafter, Mr Moore believed that Mr Bell was responsible. Mr Bell also maintained, at least initially, to Mr Moore that he was the culprit and demanded his percentage of the
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- money, which Mr Moore promised him would be paid when he received the insurance money.
36 The telephone conversation, whenever it took place on 8 October 1998, is somewhat bizarre. As Mr Moore believed that Mr Bell had lit the fire, there was little purpose in his telling him that the fire had occurred. A far more cogent reason for the call would have been to remonstrate with Mr Bell for lighting the fire before midnight and whilst only one truck was there, but Mr Moore denied that he did and Mr Bell did not assert that anything like that was said. Further, when Mr Bell continued to press for his payment, Mr Moore did not refuse to do so on the basis that he had not complied with his directions and that the consequence of his having set fire to the business premises prior to midnight was to remove the possibility that the help, which he said had been the subject of the earlier telephone conversations on the evening of 7 October 1998, was not now able to be used. Nor did he refuse to do so on the ground asserted by Mrs Moore, that Mr Bell said on several occasions that a Mr Tayleforth lit the fire.
The charges laid against Mr Moore
37 On 28 January 1999, Mr Moore was charged with two offences. First, that between 1 September 1998 and 7 October 1998 he conspired with Mr Bell to commit an indictable offence, namely fraud (s 558 of the Criminal Code) and, secondly, that on 7 October 1998, he, by means of fire, wilfully and unlawfully damaged the contents of the business premises (s 444(2) of the Criminal Code). On 29 October 1998, he made a statement to the police in which he admitted his guilt and also gave a video recorded interview in which he repeated his admissions. He appeared before a Magistrate, pleaded guilty to each offence and was remanded to appear before the District Court for sentence.
38 Thereafter, he received legal advice and, on 12 April 1999, he was arraigned before the District Court and pleaded guilty to the following charges:
"(1) that on 7 October 1998 at Carlisle, he wilfully and unlawfully destroyed the contents of 3/124 Briggs Street, Carlisle and that such damage was caused by fire; and
(2) that between 6 October 1998 and 29 October 1998 at Perth, he, by deceit or fraudulent means attempted to
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- obtain a sum of money from Zurich Australia Insurance Ltd."
39 This charge arose from his having made a claim on the insurer towards the end of October 1998 for $184,000 in respect of the loss and damage to the property at the business premises.
40 Mr Moore was represented at the District Court by counsel, not being the counsel who appeared before this Court. Counsel made lengthy submissions on his behalf, which commenced by stating "that while a sentence of imprisonment would be an appropriate sentence, in the particular circumstances of this gentleman that sentence should be suspended". Counsel then set forth the reasons for that in detail and also dealt at some length with the business difficulties, which had confronted Mr Moore.
41 The learned sentencing Judge took the view that the fire was pre-meditated and that Mr Moore had recruited Mr Bell as an accomplice. He sentenced Mr Moore to four years' imprisonment on the first count and two years' imprisonment on the second; ordered the terms of imprisonment be served concurrently; and further ordered that he be eligible for parole in respect of each term of imprisonment.
42 It will be necessary to analyse the various matters relating to the fire of which Mr Moore was aware before he made his confessions and pleaded guilty.
Mr Moore's applications to this Court
43 In February 2001, Mr Moore applied for leave to withdraw his plea of guilty. On the hearing, Mr Marshall abandoned any such application.
44 On 23 March 2001, Mr Moore filed proposed grounds of appeal. Those relied upon before this Court were grounds 1, 4, 5 and 8, Mr Marshall stating that the other grounds were not being pursued.
45 The grounds of appeal, accordingly, were:
"1. The applicant had a valid defence in that:
1.1 He did not authorise or instruct one Michael Robert Bell to light the fire;
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- 1.2 On the evidence held by the police investigating officers, Michael Robert Bell could not have lit the fire.
- ...
4. The applicant was not served with the statement of Michael Robert Bell before he pleaded guilty;
5. The applicant was not served with the Fire Brigade Report into the fire before he pleaded guilty or at all;
...
8. To allow the convictions to stand would in the circumstances amount to a miscarriage of justice."
46 In support of his application, Mr Moore swore a very lengthy affidavit on 25 May 2001.
47 On 4 December 2001, Mr Moore filed a further notice of appeal, the ground of appeal being:
"1. That having regard to all of the evidence that the order for conviction on the appellant's plea of guilty ought not to stand and the judgment ought to be set aside under Section 689 of the Criminal Code."
48 He provided the following particulars:
"1A A miscarriage of justice has occurred, in that there is fresh or new evidence which was not available at the trial of the Applicant, and there is a significant possibility or a reasonable possibility that a jury, acting reasonably, would at a trial of the Applicant, acquit the Applicant if the fresh or new evidence was put before it at a trial.
Particulars of Fresh or New Evidence
- (a) On the 31st day of October 2001 Michael Robert Bell made and signed a written statement witnessed by a Justice of the Peace setting out that he did not commit the offence of arson on the 7th October 1998.
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- (b) On the 31st day of October 2001 Michael Robert Bell told the Solicitor for the Applicant, Mrs Wickham, and his case worker, Leanne Ross, that he did not commit the offence of arson on the 7th October 1998.
- 1B A miscarriage of justice has occurred as on all the evidence before this Court there is doubt as to the guilt of the Applicant in relation to both convictions.
Particulars
- (a) The Applicant and witnesses called on his behalf.
(b) The evidence referred to at 1A(a) and (b) above.
(c) The Arson Squad Report.
(d) The Fire Investigation Officer's Report.
(e) The WA Fire Brigade Board notes."
The position of Mr Bell
50 Mr Bell was questioned on 29 October 1998 and he made a statement to the police in which he admitted that he had started the fire at the request of Mr Moore on the basis that he would be paid a percentage of the insurance money. He also admitted his guilt in a video recorded interview held on the same day when he was questioned by Detectives Lynch and Scantlebury. On 15 January 1999, he pleaded guilty in the District Court to essentially the same two charges as were preferred against Mr Moore. On 28 January 1999, he was sentenced to three years' imprisonment on each count, which periods of imprisonment were to be served concurrently and to date from 30 October 1998 from which time he had been in custody.
51 Mr Bell has now denied that he set fire to the premises. In his statement of 1 November 2001, which was made whilst he was in prison in South Australia in respect of unrelated offences, he stated events leading up to his being taken by Detectives Lynch and Scantlebury for interview to Curtin House, where he said he was left in an interview room
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- for 30 to 45 minutes at a time when he was suffering withdrawal symptoms from his heroin addiction and was not feeling well. He continued:
"One of the detectives entered the room and began a conversation. He stated that he had seen me previously in the company of two men who were known heroin dealers. These men were totally unknown and unrelated to Don Moore. He then went on to say that he knew Don lit the fire and if I didn't give a statement containing that he would raid the homes of the heroin dealers he had seen me with. He would then inform them (the dealers) that the police were acting on information supplied by me. Had this happened, it would have been seriously detrimental to my health and well being, possibly resulting in my premature demise.
At that point I said I had lit the fire. A short time later the other detective entered the room and I made the existing statements.
As well as the fact I was withdrawing from heroin, my de facto relationship of 13 years had recently ended, the finance company wished to repossess my car and I was facing eviction from my home.
The combination of all these factors placed me under great psychological stress. Consequently the statements made at that time were made under duress and are wholly unreliable. I am still fearful of these events and that is why I left WA immediately upon my release from prison.
Furthermore, I state categorically that neither Donald Moore or myself lit the fire."
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- police and the drug dealers' houses were raided and they were made aware that that was done on information supplied by him, he would be branded as a police informer and the strong possibility was that he would either be seriously injured or killed. There is no suggestion that this belief was fanciful. Mr Bell said, in his evidence before us, he would have confessed to being Lord Lucan if that would have terminated the interview. In all the circumstances, Mr Bell said that he was prepared to say anything or agree to anything, which he believed the police wanted him to do, to terminate the interview.
53 I have no doubt that Mr Bell understood that if he admitted his involvement in these offences, he would be imprisoned. However, he was, I infer, prepared to undergo that, rather than be named as a police informer, thus, as he understood it, no doubt correctly, putting his life in jeopardy. The questions remain whether his admissions and pleas of guilty came about because of the alleged threats of Detective Scantlebury, which he denied he made, and also because Mr Bell was suffering withdrawal symptoms and feeling unwell.
The evidence of Mr Bell
54 Mr Bell's statement of 1 November 2001 became exhibit 1 for the purposes of the present application. He also gave oral evidence by video link to the Court, Mr Marshall stating that this had been arranged so that this Court would have the opportunity of seeing Mr Bell, which may assist in deciding on his credibility. Mr Bell repeated why he had confessed to the police in October 1998 and, generally speaking, asserted that his statement represented the true position. His evidence was that he made the statement when the solicitor for Mr Moore communicated with him to ask him what had happened on 7 October 1999.
55 However strange and, in a number of respects lacking, in my opinion, truthfulness the evidence of Mr Moore was, there can be no doubt that if Mr Bell's present evidence is accepted, Mr Moore was not guilty of either of the offences with which he was charged. This was the basis on which Mr Marshall conducted the appeal. Thus it was essential that this Court should accept Mr Bell's recanting of his original admissions for the appeal to succeed.
56 In support of Mr Bell's statement of 1 November 2001, Mr Moore gave evidence that Mr Bell left his home at about 8.45 pm on the evening of 7 October 1998 and that it would have taken him some 20 minutes to drive from Mr Moore's home to the business premises. The fire was
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- observed by a police patrol shortly before 9.25 pm and, at 9.25 pm, the fire brigade arrived. It was found that there had been a forced entry and that one of the motor vehicles had been interfered with, apparently in an attempt to obtain fuel to act as an accelerant. Further, Mr Moore asserted that he had been advised by a fire officer that the fire had commenced about 2-1/2 hours before the fire brigade arrived and by Mr Carr that the fire had been burning for approximately 1-1/2 to two hours before the fire brigade arrived.
57 It was submitted on behalf of Mr Moore that in all these circumstances, Mr Bell could not have lit the fire. First, it was submitted that as he did not leave Mr Moore's premises until 8.45 pm, he would not have arrived at the business premises until approximately 9.05 pm. In any event, Mr Moore said that Mr Bell told him that he, Mr Bell, was going to meet his drug supplier. However, the thrust of Mr Moore's submission was that even if Mr Bell had time, having left his premises at 8.45 pm, to light the fire, there was no explanation for the assertions that it had been burning for a lengthy period before 9.25 pm, which was inconsistent with the fire having been lit by Mr Bell, if it be accepted that he did not leave Mr Moore's home until 8.45 pm.
58 This submission relied on a number of hypotheses. First, it depended on the evidence that Mr Bell left at 8.45 pm being accurate. Second, it depended upon the evidence that the fire had been alight for the period asserted. Thirdly, it depended upon Mr Carr's having said that to Mr Moore. Detective Lynch, who had only just joined the Arson Squad, attended at the scene of the fire on the night of 7 October 1998 and was present when Mr Carr made that statement to Mr Moore. Detective Lynch thinks, with the benefit of the four years' experience in the Arson Squad, which he has had since then, that it was a ridiculous statement. I should add that the business premises fronted a busy road separated by a median strip, and I think it is inconceivable that if the fire had been burning for as long as the fire brigade officer and Mr Carr said, it would not have been seen and reported earlier. Finally, Mr Marshall treated Detective Lynch as an expert in fires now and did not effectively challenge his evidence, which was the only evidence tendered on this point, that it was ridiculous to suggest that the fire had been burning for so long.
Mr Moore's stated reasons for pleading guilty
59 In his affidavit, Mr Moore said that when he was questioned in late October 1998, he was told by the police that Mr Bell "had confessed and implicated" him in the crime. He said he was in poor health, suffering
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- from depression and heart disease, and that he was told by the police that if he co-operated and pleaded guilty, he would get a suspended sentence, otherwise "the Court would come down on me like a tonne of bricks". He did not see Mr Bell's statement until after he was sentenced, but he asserted that he was confused at the time, in very poor health and "decided to plead guilty to make the problem go away".
60 In par 91, he continued:
"I had previously discussed with Bell the option of burning the factory as a solution to my financial woes so; I thought it better to plead guilty. I did not give him authority to light the fire."
61 On 29 October 1998, he spoke to his then solicitor, who asked him whether he had done it. He continued:
"At the time I concluded that Bell must have gone to the factory earlier and therefore replied to him 'I guess that I must have'."
62 The solicitor attended with Mr Moore before the Magistrate on 30 October 1998. After being committed for trial, he saw his barrister who, so he said, told him he was going to jail. He said that at no time did either his solicitor or barrister ask for an account of the circumstances.
63 Irrespective of when Mr Moore obtained the original statement of Mr Bell, he was aware, on his evidence, from the outset that:
(a) Mr Bell left his home at 8.45 pm;
(b) Mr Bell was going to meet his drug dealer;
(c) It would take Mr Bell at least 17-1/2 minutes to get to the business premises;
(d) The fire officer arrived at the fire at 9.25 pm;
(e) When he received the telephone call from a fire officer at about 10.20 pm, he was told that the premises were on fire "and it looked as if" they "had been alight for about 2-1/2 hours" before the fire officer arrived;
(f) When he attended at the fire on the evening of 7 October 1998, he was advised by Mr Carr that the premises had been burning for 1-1/2 to two hours before the fire authorities arrived;
(g) If those times were correct, Mr Bell was in his presence at the time the fire was said to have started and could not have lit the fire;
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- (h) His evidence of Mr Bell's being at his home that night could be corroborated by his wife, who left for her choir practise at about 7.30 pm;
(i) After the fire and before Mr Bell was apprehended on 29 October 1999, Mr Bell continued to visit Mr Moore's home and Mr Moore recalled him saying on many occasions that Kevin Tayleforth should go to jail "for this he knows who lit the match".
64 When all these matters are taken into account, it becomes transparently clear that information in Mr Moore's possession when he was questioned, could only have led him to the conclusion that Mr Bell could not have lit the fire. Mr Moore, whom I accept had both financial and health problems, gave evidence before this Court. I formed the impression that he is a quite intelligent and astute man and with the store of information in his possession, including the statements from the fire officer and Mr Carr, as to the time for which the fire had been burning, there can be no reason why, irrespective of matters he advanced for confessing to the fire, he would have done so. There was absolutely no reason for his failing to advise the police that whatever Mr Bell may have told them, he, Mr Bell, could not have lit the fire because at the time it was supposed to have been lit, Mr Bell was with him at his home. This matter could also have been corroborated by Mrs Moore, at least until 7.30 pm. Further, Mr Bell had told him that Mr Tayleforth had lit the fire.
65 In all these circumstances, to which I would add that Mr Moore had plenty of opportunity to instruct his solicitor and barrister about them, I reject his assertions as to the reasons why he confessed to the crimes. In my opinion, he did so because he knew that the matters to which he was confessing were the truth.
Mr Bell's change in evidence
66 Mr Bell's recanting from his original statement requires an acceptance that Detective Scantlebury threatened him in the manner he alleged and/or that he was suffering from withdrawal symptoms and was unwell. In my opinion, Mr Bell's evidence on the initial point must be rejected for a number of reasons. First, Mr Bell sought to implicate Detective Scantlebury by the suggestion that he was one of the persons, whom Mr Bell alleged to be detectives, who allegedly saw him and the drug dealers leaving the Red Castle Hotel. Detective Scantlebury denied, in most effective terms, that he had ever carried out any such surveillance at that hotel; and stated that he had never visited it socially but only on
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- occasions when he was a uniformed officer for the purposes of investigating burglaries. He further denied that any police officer had advised him that he had seen Mr Bell and the drug dealers leaving the hotel. Therefore, had Detective Scantlebury said the words Mr Bell attributed to him, he must have fabricated them. I am firmly of the opinion that he did not and that he made no such threat to Mr Bell.
67 Secondly, in his affidavit of 2 April 2002, in which Detective Scantlebury denied a number of matters alleged by Mr Bell, he said, in par 7:
"Admissions by Bell:
Mr Bell admitted to this offence only after he realised that his previous statement had been discredited and that his alibi for the night had been proven untrue. Mr Bell participated in a subsequent video record of interview and admitted the offence without threats, promises or inducements being made."
68 Detective Scantlebury was not cross-examined on this statement, save to the extent that he had threatened Mr Bell. Nor was Mr Bell asked any questions about it. Accordingly, the uncontested evidence is that Mr Bell had made some previous statement, which had been discredited, and that his alibi had been proved untrue. It is, therefore, apparent that Mr Bell had made some attempt to exculpate himself before making his two confessional statements. Each of these attempts proved to be unsuccessful.
69 The essential foundation for Mr Bell's alleged agreement to confess to the crimes was the statement allegedly made to him by Detective Scantlebury. Once this was shown to be untrue, as in my opinion it clearly was, and once other exculpatory matters put forward by Mr Bell were shown to be untrue, as the uncontradicted evidence establishes they were, the only explanation for Mr Bell's confessing to the offences, subject to the effect of the withdrawal symptoms and his ill health, was because he had committed them.
70 Mr Marshall submitted that Mr Bell was unwell and suffering from withdrawal symptoms, such that he would have said anything. He submitted this was the reason why Mr Bell was so compliant in his answers to the police. I reject this submission. Detective Scantlebury and Detective Lynch, in his affidavit of 5 March 2002, denied that they were aware, at the time of the interview, that Mr Bell was a drug addict or suffering from withdrawal symptoms. The Court had the benefit of seeing
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- the video recording of Mr Bell's interview. It lasted approximately 17 minutes and gave the Court an adequate opportunity of observing the way in which the interview was conducted and Mr Bell's actions and responses. On the first aspect, it was noted that Detective Lynch asked most of the questions. He did so in a completely reasonable way and without any sign of seeking to force answers he wanted from Mr Bell. Insofar as Detective Scantlebury asked questions, his conduct was essentially the same.
71 On the second aspect, I could not discern that Mr Bell was in any way inconvenienced, unable to understand the questions or to answer them. He did not manifest any signs of ill health or confusion.
72 Mr Marshall submitted that he was compliant, the reasons being the alleged threat and that he was unwell and suffering from withdrawal symptoms and was only concerned to have the interview terminate as soon as possible. To some extent, Mr Bell was compliant, which one would expect of a person confessing to criminal offences. However, he was, by no means, wholly compliant and, insofar as he did not agree with propositions put to him, he said so. An example of this was his denial that he had interfered with the truck. There were others.
73 In these circumstances, the second plank upon which the unreliability of Mr Bell's original confessions was founded, was not established. I have not the slightest doubt that Mr Bell's confessions to the police were brought about solely because of his appreciation that he had lit the fire. Nor do I have any doubt about their veracity.
Mr Bell's statement of 1 November 2001
74 The matters to which I have referred dispose of a substantial part of Mr Bell's statement of 1 November 2001. In the third last paragraph, he referred to his withdrawing from heroin; his de facto relationship having recently ended; the finance company wishing to repossess his car; and his facing eviction from his home.
75 Mr Marshall stated that one of the main reasons why he wished Mr Bell to give evidence by way of video link before this Court was so that this Court could make an assessment of his credibility. It is, frequently, difficult to make an assessment of credibility simply by observing a witness. However, in combination with factual determinations, one's observations are generally of some assistance in assessing the truthfulness of a witness.
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76 In my opinion, the statement of 1 November 2001 should be rejected as totally without factual foundation. The following matters impinge on Mr Bell's overall credibility. First, he had sought to give a version of events and provide an alibi on 29 October 1998, neither of which attempts were successful. Secondly, I do not accept, for the reasons given, that Detective Scantlebury threatened him. Thirdly, I do not accept that he was suffering, in any relevant or discernable way, from withdrawal from heroin or ill health.
77 Fourthly, Mr Bell gave oral evidence that he was not in as weak a financial position as may appear. He said that if he required money, and on the evidence he required something between $350 and $500 per week to maintain his use of heroin, he was still able to pawn his motor vehicle and his rent payments were up-to-date. His written statement indicates that either this evidence or his written statement was not true.
78 There is a further point. One can understand that if the threat allegedly made by Detective Scantlebury had in fact been made, Mr Bell may well have been prepared to go to jail for an offence he did not commit. However, once that evidence is rejected, the only logical explanation for Mr Bell's confessional statements, with the very likely result that he would spend a not inconsiderable time in jail, was that they were true.
Conclusions
79 This is a somewhat strange case. Both participants made confessional statements, which, for the reasons I have given, I consider were made entirely voluntarily. Both also pleaded guilty to the offences with which they were charged. I reject, once again for the reasons I have given, what they said as to why they pleaded guilty. In my opinion, the pleas of guilty merely reflected their understanding and acceptance of the crimes they had committed.
80 It is not in issue that Mr Bell's statement of 1 November 2001 constituted new or fresh evidence. This Court was expressly invited by Mr Marshall to decide the appeal on the basis that that evidence should be accepted. In my opinion, once again for the reasons I have given, I am of the view that it should be rejected. In the way in which the appeal was conducted, those findings are sufficient to dispose of it. However, I propose to refer, albeit briefly, to certain legal principles. First, the Crown submitted, and Mr Marshall made no submissions to the contrary, that it is trite law that there must be a strong case and exceptional
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- circumstances before this Court is justified in interfering with convictions based on pleas of guilty, and that such a conviction will only be set aside if there can be shown to have been a miscarriage of justice.
81 A miscarriage of justice, whilst not susceptible of exhaustive identification, may occur, relevantly for present purposes, when the appellant did not understand the nature of the charge or intend to admit guilt; if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or the guilty plea was obtained by improper inducement, fraud, intimidation or the like: Harman v Ayling, unreported; SCt of WA; Library No 960633; 5 November 1996 (at page 5) and Ryll v The Queen [2001] WASCA 185 (at page 20). None of these circumstances are available in the present case.
82 In Pileggi v The Queen [2001] WASCA 260, this Court considered in great detail the authorities relevant to the acceptance of fresh evidence and the effect it may have. I find it unnecessary to repeat the statements from many cases to which reference was made in that case, although I shall state certain conclusions drawn from them in Pileggi. At par 23 and par 25, Malcolm CJ said:
"23 As Parker J has pointed out in his reasons, the test of 'reasonable possibility' is now one of 'significant possibility' of a different verdict, rather than 'a reasonable possibility' or a 'likelihood' of a different verdict. In other words, the relevant evidence must persuade the Court that there is a significant possibility that the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ and Gallagher v The Queen (1986) 160 CLR 392.
...
25 Having seen Ms Westcott giving her evidence and scrutinising it with care, I found her explanation for recanting the evidence which she gave at the trial quite unconvincing. In my opinion, it would be so unlikely that a jury would attach sufficient credibility to it so as to be left with a reasonable doubt concerning the guilt of the appellant, having heard all the evidence. In other words, I am not satisfied that there is a significant possibility that
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- the evidence she now gives, whether it is regarded as new or fresh, justifies a finding that there is a significant possibility that the jury would be left in a reasonable doubt."
83 Of course, in the present appeal, it would not only be necessary for the jury to accept the new evidence of Mr Bell, but also to accept the reasons for pleading guilty given by Mr Moore. In my opinion, the possibility of this occurring could not, on any view of the matter, be regarded as a "significant possibility".
84 At par 50, Parker J said:
"In a case such as the present, where the fresh evidence involves the retraction or recantation of sworn evidence given by the witness at the trial, there is every reason for great care to be taken in assessing the credibility and cogency of the fresh evidence. As a matter of fact, this is obviously so because the very foundation of the fresh evidence is an assertion by the witness that he or she gave false evidence on oath at the trial. When evidence is offered on that footing, there is every reason for considerable circumspection about what is now offered as the sworn evidence of the witness. Very careful scrutiny is required especially as to the reasons now offered for giving the allegedly false evidence at trial and for the decision to give different evidence now. This is so not only as a matter of fact, but also because of the need to guard against the possibility of manipulation to which the administration of justice is so vulnerable in this respect."
85 At par 53, his Honour said that three situations arose where there was a recantation of evidence:
"In the first, the Court accepts the fresh evidence as true and conclusive of the appeal in which case the conviction would be quashed. In the second, although not satisfied of its truth, the Court nevertheless thinks that it might be believed by a jury in which case as a general proposition the Court would be inclined to order a new trial. In the third, the Court disbelieves the fresh evidence and is satisfied that the witness is not speaking the truth, in which no new trial is called for."
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86 The present case, in my opinion, falls within the third category. Even if I had thought it fell within the second category, the difficulties about Mr Moore's confessions and pleas would remain.
87 I appreciate that Pileggi was dealing with an attempt to recant evidence given on oath at a trial. However, our attention was drawn to no authority covering the circumstances of the present case and I see no reason why the principles to which I have just referred should not apply equally to those circumstances.
Orders proposed
88 I would propose that the appellant's appeal be dismissed.
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