R v Adamson

Case [2018] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ADAMSON

[2018] SASCFC 114

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Lovell and The Honourable Justice Doyle)

1 November 2018

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

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES

An appeal against conviction.

The appellant was found guilty of arson following a trial by jury. The prosecution alleged that shortly prior to 8.25pm on 30 July 2016, the appellant deliberately lit a fire inside a townhouse in West Beach. This townhouse had been the residence of the appellant and his partner until their separation three weeks prior to the fire.

The appellant claimed to have been at the Glenelg Lacrosse Club at the time of the fire, which was located 800 to 850 metres from the townhouse. The appellant’s presence at the lacrosse club was supported by witnesses and objective evidence. However, the prosecution case was that there was a period of time between 8.08pm and 8.26pm within which the appellant had a sufficient opportunity to ride his pushbike to the townhouse and light the fire. The prosecution also relied upon a number of items of circumstantial evidence which it contended cumulatively established the appellant’s guilt beyond a reasonable doubt.

The appellant appeals his conviction on the sole ground of appeal that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence, and in particular his alibi.

Held per Doyle J (Vanstone and Lovell JJ agreeing) dismissing the appeal:

1.       The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.

2.       There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.

M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; The Queen v Nguyen (2010) 242 CLR 491; R v Wildy (2011) 111 SASR 189; Dodd v Western Australia [2014] WASCA 13, considered.

R v ADAMSON
[2018] SASCFC 114

Court of Criminal Appeal:       Vanstone, Lovell and Doyle JJ

  1. VANSTONE J:     I would dismiss the appeal.  I agree with the reasons written by Doyle J.

  2. LOVELL J:          I agree with the reasons of Doyle J and the orders he proposes.

  3. DOYLE J:             This is an appeal against conviction.

  4. Following a trial by jury, the appellant was found guilty of arson.  The prosecution case was that at some time shortly prior to 8.25 pm on 30 July 2016, the appellant deliberately lit a fire inside a townhouse on Military Road, West Beach.  The appellant had been living in that townhouse with his partner (and their children) until their separation about three weeks prior…

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AGLC
R v Adamson [2018] SASCFC 114
Case
[2018] SASCFC 114
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned a conviction for arson. The appellant, R v Adamson, argued that the guilty verdict returned by the jury was unreasonable and unsupported by the evidence presented at trial. The prosecution's case was circumstantial, relying on inferences drawn from various pieces of evidence including the appellant's proximity to the scene, possession of a cigarette lighter, the breakdown of his relationship with his former partner, comments made by the appellant indicating an interest in fire, and his conduct upon arrest.

The central legal issue before the court was whether, having regard to all the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of arson. This required the court to consider the appellant's contention that no reasonable jury could have rejected the possibility that he was at the lacrosse club when the fire was lit, thereby challenging the sufficiency of the evidence to establish his guilt. The court was required to apply the principles established in *M v The Queen*, which emphasise the jury's primary responsibility in determining guilt and their advantage in observing and hearing witnesses, while also acknowledging the appellate court's duty to intervene if there is a significant possibility of an innocent person having been convicted.

The court reasoned that the circumstantial evidence, when considered as a whole, provided a sufficient basis for the jury's verdict. The evidence indicated the fire was deliberately lit and that the appellant had spoken of burning down the townhouse shortly before the incident, in the presence of police and later to another witness. The court found it open to the jury to accept this evidence and infer that the appellant's proximity to the scene, access to the townhouse, and possession of a lighter meant he had the opportunity to commit the arson. Furthermore, the jury was entitled to view the appellant's actions, such as taking a "selfie" and manoeuvring his hands after arrest, as attempts to distance himself from the offence. The court concluded that the possibility of the appellant being at the lacrosse club for the entire duration was not a reasonable one, and that the jury was entitled to reject the alibi and find guilt beyond reasonable doubt.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On this appeal, the appellant’s sole ground of appeal is that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence. In particular, the appellant contends that no reasonable jury could have rejected as a reasonable possibility that he was at the lacrosse club when the fire was lit.The evidence at trial In addition to a number of exhibits and witnesses of a relatively formal nature, the prosecution case consisted of evidence from the accused’s former partner (Ms Delarama), two police officers who had some relevant dealings with the appellant earlier in the day and also happened to be tasked to the fire at the townhouse (Officers Usher and Cliff), and some people who had been at the lacrosse club during the evening of 30 July 2016. The witnesses from the lacrosse club included two men who saw the appellant, namely a Mr Moore (who was the barman and sold the appellant at least two drinks) and a Mr Smith (who spent some time talking and drinking with the appellant). They also included Mr Haines and Mr Johnston, who came across the fire on their way home from the lacrosse club and notified the police of its existence. The accused gave evidence to the effect that he did not light the fire, and indeed remained at the lacrosse club until after he heard and saw the fire engines that were responding to the fire travel past the lacrosse club. His mother also gave some limited evidence. Some of the more significant objective evidence included receipts from the bar at the lacrosse club suggesting that the appellant bought drinks at 7.49 pm and 8.08 pm, and a ‘selfie’ photograph taken by the appellant at the lacrosse club using his mobile phone camera at 8.26 pm. It is appropriate to summarise the evidence in some greater detail before returning to a more direct consideration of the matters in issue on appeal.The appellant’s former partner and residence The appellant had been in a relationship with Ms Delarama for about 16 years. They had four children together, although one died as an infant. In the period leading up to their separation, the appellant lived with Ms Delarama and their three children in the townhouse. They did so as tenants under a lease. The townhouse was a semi-detached cream brick unit. On 6 July 2016, following the breakdown of their relationship, Ms Delarama and the children moved out of the townhouse, taking only a bag of belongings each. The appellant also moved out, taking up temporary accommodation in a tent at the West Beach Caravan Park. Some jointly-owned furniture, including a bed, mattress and some whitegoods remained at the townhouse as at 30 July 2016. The afternoon of 30 July 2016 During the afternoon of 30 July 2016, Ms Delarama requested that the police attend with her at the townhouse while she collected some property. Uniformed police officers Usher and Cliff met Ms Delarama at a nearby location. They followed her to the townhouse, arriving between about 4.20 pm and 4.30 pm. Ms Delarama was also accompanied by her eldest daughter, a friend of her daughter, and an adult friend of her own with a van. They were intending to, and did, use the van to retrieve some of Ms Delarama’s belongings from the townhouse.

Decision

Reasons for decision

Similar observations might be made in relation to the evidence relating to the ‘selfie’ photograph, and the appellant’s statement that the fire engines were his “cue to leave”. ConclusionThe evidence established that the fire in the townhouse in which the appellant had lived with Ms Delarama prior to the recent breakdown of their relationship was deliberately lit.It also established that just a handful of hours prior to the fire being lit, the appellant had spoken of burning it down. He did so in the presence of two police officers, and after he had seen Ms Delarama removing property from the townhouse and the reality of the breakdown of his 16 year relationship with the mother of his children had dawned upon him. Further, there was evidence to the effect that after this, but prior to the first fire engine arriving on the scene, the appellant also spoke to Mr Smith at the lacrosse club about setting a house on fire. It was open to the jury to accept this evidence, and hence that the idea of lighting a fire continued to occupy the appellant’s mind, including as he consumed alcohol. The appellant was close to the scene of the fire during the evening of 30 July 2016. He had a bike to transport him to the townhouse, access to the townhouse, and a cigarette lighter with which to light the fire. No significant preparatory movement of furniture or ignitable items was required. The fire could have been lit quickly. It was open to the jury to conclude that the evidence as to the fact and timing of the appellant’s presence at the lacrosse club allowed for his absence for a period of time sufficient to light the fire.In considering the circumstantial case against the appellant as a whole, the jury was entitled to regard the appellant’s conduct in taking the ‘selfie’ at 8.26 pm, and in manoeuvring his hands following his arrest, as conduct designed to distance himself from the offence. The jury was entitled to reject as so remote or fanciful as to be unreasonable the possibility that Ms Delarama or an unidentified third party lit the fire, particularly given the coincidence in timing with the appellant’s statements earlier in the day. In particular, while there were some potential difficulties with the reliability of aspects of Ms Delarama’s evidence, the jury was entitled to consider that the notion of Ms Delarama having ‘set up’ the appellant was fanciful given that she was not present when the appellant made those statements to police, and did not have any further contact with the police until after the fire had been discovered.In summary, there was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.For these reasons, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The plurality in M v The Queen added:[3]But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[3] M v The Queen (1994) 181 CLR 487 at 493-495 (citations omitted).Consideration The prosecution case at trial was a circumstantial one. Its case was that it had established the guilt of the accused beyond reasonable doubt through a combination of inferences arising from various pieces of circumstantial evidence. In the prosecutor’s closing address, and the trial judge’s summing up, the circumstantial evidence was grouped under the following six topics:· Opportunity by reason of the appellant’s physical proximity to the scene of the fire.· Means by reason of the appellant’s possession of a cigarette lighter being a means to have ignited the fire.· Motive by reason of the breakdown of the appellant’s relationship.· Comments made by the appellant on the day of the fire indicating an interest in, or preoccupation with, fire – being his comments to the police officers during the afternoon, and to Mr Smith during the evening while at the lacrosse club.· Conduct of the appellant in attempting to create the impression of an alibi in the form of the ‘selfie’ taken with his mobile phone camera.· Conduct of the appellant upon his arrest indicating an effort to expunge material from the surface of his hands.