Quist v The Queen

Case [2021] SASCA 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

QUIST v THE QUEEN

[2021] SASCA 106

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)

7 October 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against conviction of one count of arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).

The appellant was charged with one count of arson, contrary to section 85(1) of the CLCA. The prosecution case was circumstantial. After the jury had retired to deliberate, a note from the jury was provided to the trial judge. The note informed the judge that a juror had gone home the previous day and discussed an aspect of the case with their mother, and the mother had advised the juror that the appellant could not be found guilty.

Counsel for the appellant applied for an order declaring a mistrial. The judge refused the application, and instead gave the jury a direction about the note. Following the appellant’s conviction, the judge indicated at a directions hearing that she had refused the application because she was anticipating a real chance of acquittal.

The issues arising on appeal are whether:

•  the prosecution failed to particularise, or to adduce evidence at the requisite level of particularity of, the actus reus of the appellant in relation to the ignition of the fire, resulting in a miscarriage of justice (Ground 2);

•  the verdict was unreasonable or cannot be supported having regard to the evidence (Ground 3);

•  a substantial miscarriage of justice occurred by reason of the juror discussing the case with their mother while the jury was engaged in deliberations, and introducing the mother’s views into those deliberations (Ground 4); and

•  the judge’s subsequent refusal to declare a mistrial was itself tainted by error of law such as to cause a substantial miscarriage of justice (Ground 4).

Held (by the Court), granting permission to appeal on Ground 2, dismissing Grounds 2 and 3, and allowing the appeal on Ground 4:

1.  The judge’s failure to assess and determine the consequences of the incursion into the jury’s deliberations, and to rely on her own anticipation of an acquittal, constituted an interference with the integrity of the functions of the jury. The judge’s stated reason for refusing to declare a mistrial demonstrated a miscarriage of justice.

2.  The subject matter of the note was central to the jury’s consideration of the case. The judge’s subsequent direction could not cure the risk to the integrity of the jury’s deliberations. A fair-minded and informed member of the public would have had a reasonable apprehension or suspicion that the juror or the jury had not discharged or would not discharge their task impartially.  The juror’s actions as evidenced by the note caused…

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Quist v The Queen [2021] SASCA 106
Case
[2021] SASCA 106
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CaseChat Overview and Summary

The Court of Appeal considered an appeal by the appellant against her conviction for deliberately lighting a fire. The prosecution's case was circumstantial, alleging the appellant used petrol from soft drink bottles to start the fire in a disabled toilet block at a shopping centre, and was injured in the process. The appellant's defence was not detailed in the provided text, but the appeal concerned alleged miscarriages of justice during the trial.

The legal issues before the Court of Appeal included whether the trial judge erred in her handling of a note received from the jury, which indicated a juror had discussed the case with their mother, and whether this constituted a miscarriage of justice. The Court also considered whether the verdict was unreasonable or insupportable having regard to the evidence, and whether the prosecution had adequately particularised and adduced evidence to prove the actus reus of the offence.

The Court found that the judge's failure to properly assess and determine the consequences of the jury's deliberations, particularly in light of the note concerning a juror discussing the case with their mother, constituted an interference with the jury's functions and a miscarriage of justice. The judge's subsequent direction was deemed insufficient to cure the risk to the integrity of the deliberations, leading to a reasonable apprehension that the jury might not have discharged their task impartially. However, the Court rejected the argument that the verdict was unreasonable or insupportable, finding the circumstantial evidence capable of supporting a conviction. The Court also found that the prosecution had particularised and adduced sufficient evidence for the actus reus.

Ultimately, the Court of Appeal allowed the appeal on one ground, quashed the conviction, and remitted the matter for retrial. Permission to appeal was granted on one ground, while other grounds were dismissed.

Orders

Orders of the court

Held (by the Court), granting permission to appeal on Ground 2, dismissing Grounds 2 and 3, and allowing the appeal on Ground 4:

1. The judge’s failure to assess and determine the consequences of the incursion into the jury’s deliberations, and to rely on her own anticipation of an acquittal, constituted an interference with the integrity of the functions of the jury. The judge’s stated reason for refusing to declare a mistrial demonstrated a miscarriage of justice.

2. The subject matter of the note was central to the jury’s consideration of the case. The judge’s subsequent direction could not cure the risk to the integrity of the jury’s deliberations. A fair-minded and informed member of the public would have had a reasonable apprehension or suspicion that the juror or the jury had not discharged or would not discharge their task impartially. The juror’s actions as evidenced by the note caused a miscarriage of justice.

3. The Court cannot be satisfied that, absent the events the subject of the note, the jury would inevitably have convicted the appellant. This is not a case for application of the proviso.

4. The totality of the circumstantial evidence was capable of supporting a path of reasoning to guilt. The verdict was not unreasonable or incapable of being supported, having regard to the evidence.

5. The prosecution particularised, and adduced evidence capable of proving, the actus reus in relation to the ignition of the fire, at the requisite level of particularity. The jury were comprehensively instructed as to the limits of the evidence in the context of the required standard of proof.

6. The conviction is quashed, and the matter is remitted for retrial.

Background

Background to the litigation

On 12 July 2021, following concessions by the respondent, Kelly P granted permission to appeal on Grounds 3 and 4 and referred Grounds 1 and 2 to this Court for permission. The appellant has now abandoned Ground 1, which complained of an error in finding a case to answer.Background On 23 December 2013, at approximately 5:15pm, a fire was deliberately lit in the disabled toilet block within the Parafield Gardens Shopping Centre. The prosecution case was that the appellant had lit the fire. The appellant’s mother operated the Australia Post shop in the shopping centre. The appellant was visiting her mother at the shop, as she had many times before. During this visit, the appellant left her backpack on the counter of the shop, unattended, for several minutes. Sometime after the shop closed, the appellant left the shop with a backpack and another bag. The prosecution case against the appellant was circumstantial. It was that when she left the shop, she was carrying a backpack containing seven soft drink bottles full of petrol. The prosecution alleged that the appellant splashed petrol from one bottle around the floor of the disabled toilet, leaving an open bottle containing petrol near the toilet itself. She secreted the remaining six bottles in the cavity above the ceiling, through the gap created by the exhaust fan fitting. As she walked to the door to leave, she lit a match to ignite the petrol. This caused what was described as a vapour explosion or fire to ignite, on account of the accumulation of petrol vapours in the air.Summary of evidence It is necessary to describe the evidence in a degree of detail.The CCTV footage There was a CCTV camera operating from inside the Australia Post shop. Its field of vision incorporated most of the inside of the shop and a relatively confined area of the shopping centre floor beyond the glass door and windows of the shop. The CCTV footage shows the appellant walking away from the shop and out of vision. The footage then records, about six minutes later, an orange flash outside of the shop. The appellant is then recorded coming into view, in a distressed state, proceeding to the front door of the shop. The appellant had suffered serious burns, caused by being close to the fire in the disabled toilet. She was the only person injured.The immediate witnesses Witnesses gave evidence that their attention was drawn to the fire when they heard a woman screaming. Foodland employees attended and extinguished the fire, using powder and water extinguishers. One employee, Mr Benjamin Huckstepp, estimated that the toilet door was 30 cm ajar, sufficiently wide for him to get the fire extinguisher in without disturbing the door. He used a powder fire extinguisher. He said he did not touch anything in the toilet, although he was not asked whether items were moved about by use of the extinguisher. Mr Huckstepp also gave evidence that when he pulled the pin of the fire extinguisher, a man came out of the door of the toilet next to the disabled toilet. He looked at the employees with fire extinguishers and then exited quickly by the side door to the shopping centre.

Evidence

Evidence Before The Court

The prosecution case against the appellant was circumstantial. It was that when she left the shop, she was carrying a backpack containing seven soft drink bottles full of petrol. The prosecution alleged that the appellant splashed petrol from one bottle around the floor of the disabled toilet, leaving an open bottle containing petrol near the toilet itself. She secreted the remaining six bottles in the cavity above the ceiling, through the gap created by the exhaust fan fitting. As she walked to the door to leave, she lit a match to ignite the petrol. This caused what was described as a vapour explosion or fire to ignite, on account of the accumulation of petrol vapours in the air.Summary of evidence It is necessary to describe the evidence in a degree of detail.The CCTV footage There was a CCTV camera operating from inside the Australia Post shop. Its field of vision incorporated most of the inside of the shop and a relatively confined area of the shopping centre floor beyond the glass door and windows of the shop. The CCTV footage shows the appellant walking away from the shop and out of vision. The footage then records, about six minutes later, an orange flash outside of the shop. The appellant is then recorded coming into view, in a distressed state, proceeding to the front door of the shop. The appellant had suffered serious burns, caused by being close to the fire in the disabled toilet. She was the only person injured.The immediate witnesses Witnesses gave evidence that their attention was drawn to the fire when they heard a woman screaming. Foodland employees attended and extinguished the fire, using powder and water extinguishers. One employee, Mr Benjamin Huckstepp, estimated that the toilet door was 30 cm ajar, sufficiently wide for him to get the fire extinguisher in without disturbing the door. He used a powder fire extinguisher. He said he did not touch anything in the toilet, although he was not asked whether items were moved about by use of the extinguisher. Mr Huckstepp also gave evidence that when he pulled the pin of the fire extinguisher, a man came out of the door of the toilet next to the disabled toilet. He looked at the employees with fire extinguishers and then exited quickly by the side door to the shopping centre. Another Foodland employee, Mr Joseph Sikora, described the toilet door as being open to about 10 cm. He saw a box of matches just inside the doorframe. He could not say whether use of the fire extinguishers moved anything around. The third employee, Mr Benjamin Stephens, entered the room by ‘the smallest amount’ so as to aim an extinguisher at the ceiling. He did not touch anything. A member of the public administered first aid to the appellant at the Australia Post shop. At this time, the appellant twice said, ‘where is my bag?’.The appellant’s injuries and the appellant’s backpack The appellant sustained burns to 23.5 per cent of her body. The burns were located on her upper chest and lower neck, the back and front of both forearms, a strip across her lower back, both knees and a strip on the top of each of her feet.

Decision

Reasons for decision

As set out above, the judge in summing up explored the limits of Mr Wynne’s evidence in searching detail, pointing out the absences within that evidence that might cause the jury to entertain a reasonable doubt. The jury were comprehensively instructed as to the limits of the evidence in the context of the required standard of proof. We reject the complaint that the prosecution either did not particularise, or did not adduce evidence capable of proving, the actus reus at the requisite level of particularity.Conclusion We grant permission to appeal on Ground 2. We dismiss Grounds 2 and 3. We allow the appeal on Ground 4. We quash the conviction and remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

The judge articulated that concern about the particularity of the prosecution case in her summing up:In that regard I need to direct you that Mr Wynne did not express any opinion about how a person would go about starting a fire using petrol in the disabled toilet which would end up as a flash fire. He gave no evidence about how she would use the petrol to start the fire. There is no evidence about what the arsonist on the prosecution case needed to set fire to in order to start the flash fire. Is it a match thrown into the air? Is it a match lit near the petrol? What factors with [sic: will] need to exist in order for the arsonist to suffer burns?The only area that was positive for petrol on the prosecution case was around the area of that bottle near the toilet that was melting. You heard evidence that certain items smelt of petrol but Wynne gave no evidence about where there was petrol on those items before the fire started or whether that smell can be explained because those items had been in a room where there was a petrol fire. In cross-examination he gave some incidental evidence that the area he marked in red on a photo on the floor may have been petrol poured by the arsonist on the floor but he also said it could have been petrol leaking from the melting bottle.So members of the jury, there is no evidence of petrol being splashed around the room at all. So how, on the prosecution case, was the fire actually started and how, on the prosecution case, could the arsonist have come to suffer burns when lighting that petrol fire.If you are left wondering about those matters then you may well not have reached the level of satisfaction beyond reasonable doubt. As I said at the outset, this is an area of expertise, namely petrol fires, because they are outside the ordinary experience of non-experts. The prosecution cannot leave you guessing or speculating about how the accused, if she was the arsonist, could have started the fire or could have been at the risk of being burnt in the fire.The jury’s deliberations The jury retired and commenced deliberations late on the morning of 16 March 2021. At 5:15 pm, they requested to go home and come back the next morning. The judge permitted this and gave the following direction:I need to direct you, of course, that it is as crucial as always, if not more so because you are in the middle of your deliberations, that you do not discuss anything about this case with anybody else. Your discussions have to be solely within the 12 of you. In the old days, juries used to go to a hotel so there could be no communication with anybody else, but we do not do that anymore, on the understanding that there is no discussion or communication with anyone else about the issue or the case whatsoever. This direction was in orthodox terms. It could not have been clearer. Deliberations recommenced the next morning. The jury were provided with transcripts of evidence they had requested the previous day. In the course of the morning, the judge informed counsel that she had received a note in the following terms:Your Honor [sic]One of the Jurors has gone home last night and discussed the case with their mother about the followingBackpack being empty and other jurors assumed it was filled with petrol prior, they asked their mother what her thoughts were, and the mother advised you can’t find her guilty.