R v Ahmed

[2001] NSWCCA 450

CITATION:	Regina v Emad AHMED [2001] NSWCCA 450
FILE NUMBER(S):	CCA 60422/01
HEARING DATE(S):	7/11/01
JUDGMENT DATE:	21 November 2001
PARTIES :	Emad AHMED (Appellant) Regina (Respondent)
JUDGMENT OF:	Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/3120
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	J C Papayanni (Appellant) W G Dawe QC (Crown)
SOLICITORS:	Jeffreys & Associates (Appellant) S E O'Connor (Crown)
LEGISLATION CITED:	Criminal Appeal Rules 1952 Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Crimes (Criminal Destruction and Damage) Amendment Act 1987 Evidence Act 1995
CASES CITED:	Director of Public Prosecutions' Reference No 1 of 1988 (1989) 40 A Crim R 461 Peters v the Queen (1998) 192 CLR 493 Regina v Tripodina (1988) 35 A Crim R 183 Wilde v the Queen (1988) 164 CLR 365
DECISION:	Dismiss the appeal against conviction; Leave to appeal against the severity of sentence granted; Dismiss the appeal against sentence

- 4 -IN THE SUPREME COURT

60422/01
HEYDON JA
DOWD J
BELL J


21 November 2001

REGINA v Emad AHMED

Judgment

1 HEYDON JA: I agree with Bell J.

2 DOWD J: I agree with Bell J.

: The appellant was arraigned before Freeman DCJ and a jury at the District Court at Penrith on 27 February 2001. It is appropriate to set out the terms of the indictment which contained two counts framed in the alternative:

“(1) That whereas Warwick Marshall on or about 28 March 1999 at Ingleburn, in the State of New South Wales, dishonestly and with a view for making a gain for himself, by means of fire, did damage property, namely a building located at the corner of Oxford Road and Macquarie Road, the property of Percival Management Pty Limited and for that he is charged that before the said offence was committed in the manner aforesaid, between 20 March 1999 and 28 March 1999 at Ingleburn in the State of New South Wales, he did incite, move, procure, aid, counsel, hire and command Warwick Marshall to commit the said offence in the manner aforesaid.
(2) For that he is further charged in the alternative that whereas Warwick Marshall on or about 28 March 1999 at Ingleburn, in the State of New South Wales, did maliciously damage by means of fire property, namely a building located at the corner of Oxford Road and Macquarie Road, the property of Percival Management Pty Limited and for that he is charged that before the said offence was committed in the manner aforesaid between 20 March 1999 and 18 March 1999 at Ingleburn, in the State of New South Wales, in did incite, move, procure, aid, counsel, hire and command Warwick Marshall to commit the said offence in the manner aforesaid.”

4 The offence charged in count one is provided by s 197(b) of the Crimes Act 1900 (NSW) (“the Act”). The count charges the appellant as an accessory before the fact to the commission of the offence pursuant to s 346 of the Act. The offence carries a maximum penalty of imprisonment for fourteen years. The alternative count charges the appellant with being an accessory before the fact to an offence contrary to s 195(b) of the Act. This offence carries a maximum penalty of imprisonment for ten years.

5 The appellant was convicted of the first count. He was sentenced to a term of imprisonment of eighteen months. A non-parole period of nine months was specified. He was assessed as being suitable for home detention. An order that the sentence be served by way of home detention was made on 28 June 2001.

6 By notice of appeal, dated 28 June 2001, the appellant appeals against his conviction and he seeks leave to appeal against the severity of the sentence imposed upon him.

The Crown Case

7 It was the Crown case that the appellant was the proprietor of a fruit shop known as the “Ingleburn Fruit Palace” which was one of a number of shops located at the corner of Oxford Road and Macquarie Road, Ingleburn.

8 Warwick Marshall worked for the appellant in the fruit shop in March 1999. Mr Marshall gave evidence that the appellant approached him and asked him whether he wanted to earn some extra cash by burning down the shop so that he (the appellant) could get the insurance money. Mr Marshall accepted the appellant’s offer.

9 Mr Marshall said that he lit a fire in the fruit shop on the night of 27 March 1999. In accordance with instructions given to him by the appellant he bought petrol at different outlets and had spare keys cut for the padlocks which secured the front roller doors to the shop. He entered the premises using the spare set of keys and sprinkled petrol around. He lit the petrol with a cigarette lighter and ran away.

10 Mr Marshall left the shop taking two of the padlocks from the front roller doors with him. He later disposed of these. He dumped one in the Georges River at Lansvale and the other (along with his petrol stained clothing) in bushland at Airds. He was in the company of his friends, Danielle Stoyles (now Champion) and Cormack Champion on this latter occasion. He had agreed to help Ms Stoyles and Mr Champion dispose of a lounge suite from her home.

11 Danielle Champion gave evidence that Warwick Marshall drove her to the scene on the morning of Sunday 28 March and showed her the remains of the building. Later that afternoon he assisted her and Cormack Champion to get rid of a lounge suite by driving them to an area of bushland at Wedderburn where it was left. Warwick Marshall had dumped a padlock and some petrol soaked clothing at this location.

12 Cormack Champion gave evidence that Warwick Marshall admitted to him, in the presence of Danielle Champion, that he had set fire to the building and that it was an “insurance job”. He gave an account of the dumping of the lounge suite and of observations he made of a padlock which was in the van driven by Warwick Marshall on the day following the fire. He said that around Easter 1999 he had come to believe that Warwick Marshall had broken into his home and stolen a quantity of property. He and Danielle called on the appellant with a view to enlisting him to persuade Marshall to return the property.

13 In the course of a conversation with the appellant Mr Champion said that Warwick Marshall had told him about the shop fire. He went on to say that he, Mr Champion, was aware that Warwick Marshall had given the appellant an account that he had done the job with a friend (in order to get more money) but that, as he understood it, Marshall had done it by himself. The appellant was said to have stood with his arms crossed looking at Mr Champion during this conversation and nodding. Mr Champion went on to tell the appellant that, contrary to Marshall’s assurances to him (the appellant) that he had got rid of the padlocks, he, Champion knew where one of them was located. The appellant had offered to try to assist in getting Mr Champion’s property returned to him and gone on to enquire “okay, now you said something about padlocks”.

14 Mr Marshall was interviewed by police in the course of the investigation into the arson. In his first statement he denied any involvement in the matter. Subsequently he provided a statement admitting to having lit the fire and asserting that he had been retained by the appellant to do so. Mr Marshall agreed to assist the police with their inquiries by speaking with the appellant while wearing a listening device. There were two such conversations. In neither did the appellant make any admissions.

15 Phillip Reed, Manager, Claims Unit of Allianz Australia Insurance (formerly MMI General Insurance Ltd) gave evidence that the company received an insurance proposal from an insurance broker on behalf of the appellant’s wife, Hend Ahmed, on 7 May 1998. On 28 August 1998 the company was asked to quote for, and subsequently granted, additional cover on the same policy. On 8 April 1999 an insurance claim was submitted in the name of Hend Ahmed. Mr Reid received a number of telephone calls between 28 April and 4 June 1999 from the appellant enquiring about the progress of the claim. No payment was paid by the insurance company in relation to the claim.

(1) His Honour erred in law in not directing a verdict of acquittal in that inter alia the facts as alleged did not support the offence under section 197(b) and section 346 of the Crimes Act 1900.

(2) His Honour erred in law in misdirecting and/or failing to direct the jury as to the elements of the said offence and the facts alleged in support thereof.

16 Grounds one and two are conveniently dealt with together. They raise a common issue. It is to be noted that at the conclusion of the Crown Case Mr Sandilands, who appeared for the appellant, is recorded as making an application for a “Prasad direction”. This application was refused. No application was made that the trial judge direct a verdict of acquittal in respect of the first count in the indictment.

17 The trial judge, after reading the terms of the first count in the indictment to the jury, went on to give the following directions:

“That means, put very simply, that the charge is that Warwick Marshall dishonestly, with a view to making a gain for himself, damaged a building by fire and that, before he did this, the accused encouraged him to do it. That is really what the Crown case is, that this accused offered some sort of passive or active assistance to facilitate or request or generally encourage Mr Marshall to do it.
Now the offence committed by Mr Marshall has to be done dishonestly, and that is simply – I am not altogether certain why they still use that word – it simply means in some way breaching the standards of honesty that you, as ordinary law abiding citizens, understand to be the standards prevailing in the community. You know when something is honest, when it is dishonest. The Crown says it is dishonest to set fire to a building for personal gain when it belongs to somebody else. You might think that that does breach the standards of honesty that you are familiar with which obtain in the community. So it has to be done dishonestly, with a view to making a gain for himself, and his evidence is that he was going to be (scil “get”) a thousand or two, depending on whether he had a mate or just charged as though he had a mate, he damaged the property by means of fire.
…
Importantly, from your point of view, the question in this trial is if the Crown has established that Mr Marshall did all those things – dishonestly, with a view to a gain damaged by the fire the property called the Ingleburn Fruit Palace, are you satisfied beyond reasonable doubt that he did it because this accused encouraged him to do it? That is the issue for you in this trial.
The alternate charge, frankly, does not make much sense to me because it charges that Warwick Marshall maliciously damaged by fire a building and the accused incited, moved, procured, aided, counselled, hired or commanded him to do so in the manner aforesaid. I do not understand that charge because the only difference between it and the primary charge is, if you like, the lack of a motive in the second one. The primary charge says there was an obvious purpose – it was to gain a financial advantage. The second one says that he just lit it and the accused encouraged him to do it without any particular purpose. That is the difference between the two and I, frankly, do not understand how you can differentiate between the two. It is a matter for you but I would think you either find the accused guilty or not guilty on the first count and, if you find him not guilty on the first, I do not see how you could find him guilty on the second, the alternate. However, I might have to hear counsel argue that. That is my view – it does not make sense, the second one. Anyway what the Crown has to prove are the elements that I have identified for you, that Mr Marshall did it and that the accused encouraged him before he did it (SU 11-13).”

18 Mr Papayanni, who appeared on behalf of the appellant, contended that the above directions misconceive the elements of the offence charged in count one. In written submissions he referred to the history of s 197 which, as I have noted, creates the offence charged in count one. This section was inserted into the Act by the Crimes (Criminal Destruction and Damage) Amendment Act 1987. It is in similar terms to s 197(3) of the Crimes Act 1958 (Vic) which was enacted in 1978.

19 The Victorian provision was considered in Director of Public Prosecutions’ Reference No 1 of 1988 (1989) 40 A Crim R 461. In that case the Court rejected the contention that one could not commit an offence contrary to s 197(3) by destroying one’s own property. The Court set out a portion of the Victorian Attorney-General’s second reading speech in the Legislative Council (Hansard 2 May 1978, p 1971):

“The third offence, of dishonestly destroying or damaging property, with a view to gain for oneself from another, is not in the English Act. The Government has adopted the view of the working party that a separate offence such as this is necessary because the fraudulent destruction of property is essentially different from its merely intentional destruction. It is intended to cover the case where a person destroys property with intent to defraud someone, such as an insurance company, and yet does not get to the stage of actually attempting to gain a financial advantage by deception, or attempting theft. This person is obviously a danger to the community. And even if what is done amounts to an attempt to commit some other crime, it is sufficiently serious in itself to justify the creation of a special offence to deal with it.”

20 Mr Papayanni, in written submissions, after extracting the above passage from the judgment in Director of Public Prosecutions Reference No 1, went on to contend:

“The Court made it clear that the intention was to create an offence that was aimed at dishonest claims upon insurance companies by an offender who has damaged or destroyed property, even if the property was his own.
….
The direction that the appellant encouraged the offence by Marshall where the gain by him related to his payment for setting fire to the building is accordingly a misconception of the offence which is directed at the fraud on the insurance companies in obtaining the moneys from the insurance payout. His Honour mistakenly followed apparently the Crown’s submission to that effect and could not understand why “dishonesty” was still used in relation to the setting fire of the building (p 11 of S U).”

21 Section 197 provides:

197 A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable:

(a) to imprisonment for 7 years; or
(b) if the destruction of damage is caused by means of fire or explosives, to imprisonment for 14 years.

22 The indictment as framed did not allege that Mr Marshall dishonestly, with a view to making a gain for another, damaged the subject property. It alleged that Mr Marshall had dishonestly, with a view to making a gain for himself, damaged the property. It was Mr Marshall’s evidence that the offer to him to set fire to the premises in return for a payment was made in the context of it being an “insurance job”. He said that he was to receive the bulk of his payment when the appellant received the insurance payout. To destroy or damage property with a view to obtaining a payment for so doing when an accused person knows that the destruction of, or damage to, the property is to be used to support a fraudulent insurance claim seems to me to fall within the terms of s 197 of the Act. In such a case the element of dishonesty might be thought to derive from the knowledge, or belief, that the venture forms part of a proposed fraud on the insurer. The terms of the section do not require that the contemplated gain be the settlement of the insurance claim. I do not read Director of Public Prosecutions Reference No 1 to favour a contrary view.

23 I would reject the appellant’s primary submission that the facts alleged by the Crown were not capable of supporting the charge pleaded in count one of the indictment. It flows from this that I consider there is no merit in the appellant’s first ground of appeal and I would reject it.

24 No complaint is made of the trial judge’s direction that “dishonesty” in this context involves conduct breaching the standards of honesty that the jury, as ordinary law abiding citizens, took to be the standards prevailing in the community; Peters v the Queen (1998) 192 CLR 493. Ground two challenges the adequacy of the trial judge’s directions on dishonesty by reference to the facts said to support proof of this ingredient. The knowledge or belief said to render Mr Marshall’s conduct dishonest was identified by the trial judge (apparently on the basis of a submission made by the Crown) in these terms: “it is dishonest to set fire to a building for personal gain when it belongs to somebody else.”

25 The evidence disclosed that the shop occupied by the Ingleburn Fruit Palace was owned by a company, Percival Management Pty Limited. The shop was leased to the appellant’s wife, Hend Ahmed. No evidence was led from Mr Marshall to establish his knowledge of the ownership of the premises. There may be circumstances in which to set fire to another’s property for reward at the request of that other is not dishonest. The Crown case here was that Mr Marshall set fire to the premises at the request of the appellant as an “insurance job”. Mr Marshall’s dishonesty lay in setting fire to the premises knowing that a fraudulent insurance claim was to be submitted on behalf of the appellant.

26 In Peters v the Queen (1988) 192 CLR 493 Toohey and Gaudron JJ in their joint judgment observed:

“In a case in which it is necessary for the jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, whether on that account, the act was dishonest. ….If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people” p 504 [18].

27 It was the appellant’s case that if Warwick Marshall was indeed the arsonist, then he had acted alone prompted by resentment of the appellant who had given him one week’s notice on the Wednesday preceding the fire. The appellant denied asking Mr Marshall to burn the shop or telling him that he intended to do “an insurance job”. The case was not conducted upon the basis that it was not dishonest either for the appellant to engage Warwick Marshall to assist him with an insurance fraud or for Warwick Marshall to agree to set fire to the premises for reward in these circumstances.

28 The Crown case depended upon an acceptance of the evidence of Mr Marshall in its essential features. The jury by its verdict must be taken to have been satisfied beyond reasonable doubt that Mr Marshall set fire to the premises at the instigation of the appellant in return for the promise of a payment and that his conduct in so doing was dishonest by the standards of ordinary members of the community. It is inconceivable that any purpose, other than the submission of a fraudulent insurance claim, might have been understood by Warwick Marshall as prompting the appellant’s request that he burn down his shop. Mr Marshall’s evidence was: “He (the appellant) told me he wanted to burn down the shop for – so he could get his insurance money” (T 27, 27/02/01). The jury’s attention was not drawn to the need for them to be satisfied that Warwick Marshall knew that the venture was an insurance job (or, perhaps, that he knew the premises did not belong to the appellant) as a basis for determining whether his conduct was dishonest by the standards of ordinary members of the community. In my view it is not reasonably open to contend that, had they been so directed, a different verdict might have been returned.

29 There may be technical merit to the complaint that His Honour’s directions as to the element of dishonesty were deficient in that they did not identify with sufficient clarity the knowledge or belief of Mr Marshall said to make his conduct dishonest. It is apparent that Mr Sandilands, who appeared for the appellant at the trial, did not consider that the directions on this topic were inadequate. He sought no further, or other, direction at the conclusion of the summing-up. In my view no miscarriage of justice can be said to have occurred by reason of any deficiency in the directions on this topic. The trial judge’s directions as to the elements of the offence charged in count one do not involve a fundamental error such as to vitiate the trial; Wilde v the Queen (1988) 164 CLR 365; Regina v Tripodina (1988) 35 A Crim R 183. I would refuse leave pursuant to r 4 of the Criminal Appeal Rules 1952 (“the CAR”) to rely on this ground.

Grounds 3 & 4.

(3) His Honour erred in law in misdirecting and/or failing to direct the jury as to the evidence of Danielle and Cormack Champion in accordance with sections 164 and 165 of the Evidence Act and/or otherwise.

(4) His Honour erred in law in failing to warn Danielle and Cormack Champion of the provisions of section 128 of the Evidence Act 1995.

30 Again, it is convenient to deal with these two grounds together since they are founded substantially upon the same contention, namely, that Danielle and Cormack Champion might reasonably be supposed to have been criminally concerned in the subject offence. In support of these two grounds, in his written submissions, Mr Papayanni put it this way:

“Danielle and Cormack Champion both gave evidence that Marshall told them that he had set fire to the fruit shop and took them down to the shop to see it. They accompanied him and assisted him when disposing of his petrol stained clothing and a padlock with a key in it. They apparently were not charged (to be checked). [In oral argument Mr Papayanni said they had not been charged.]
The Champions would come within the provisions of section 165(1)(a)(scil (d)) as being witnesses “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” and accordingly their evidence may be unreliable and directions under section 165(2)(a)(b)(c) should have been given (see R v Thomas 40 A Crim R at 92).
No warning by the judge was given as to self-incrimination under section 128 of the Act and the procedure there was not followed. If that procedure had been followed, certain evidence may or may not have been given, but if given directions under section 165 as to unreliability would have been given.”

31 The evidence of Cormack and Danielle Champion is summarised at paragraphs [9] – [11] above. It did not establish that either might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. Both were aware of the commission of the crime and of Mr Marshall’s involvement in it. Both were present when he disposed of property which might link him to the commission of the crime. The disposal of the property was undertaken by Mr Marshall. He had offered to assist the Champions in disposing of their lounge by carting it to Wedderburn in the appellant’s van of which he still had the use. This did not, without more, expose either Danielle or Cormack Champion to criminal liability with respect to the arson.

32 Mr Sandilands made no application for the trial judge to give the jury a warning, pursuant to s 165 of the Evidence Act 1995, that the evidence of Mr or Mrs Champion was of a kind that may be unreliable. Accordingly s 165 does not apply. Section 165(2) requires the judge to give a warning (unless he or she is of the view that there are good reason not to do so) if a party requests one. The appellant’s submissions as to this ground depend upon the trial judge’s power preserved by s 165(5) to warn or inform the jury that evidence of a kind described in s 165(1)(d) may be unreliable. I do not consider that the circumstances were such as to support the contention that the evidence of Danielle or Cormack Champion required that a warning or other direction be given upon the basis that either were reasonably supposed to have been criminally concerned in the events giving rise to the proceeding or otherwise. This ground requires leave pursuant to rule 4 of the CAR. I would refuse leave.

33 Section 128 of the Evidence Act has application in a case where a witness objects to giving particular evidence on the ground that the evidence may tend to prove, inter alia, that the witness has committed an offence against an Australian law. If the Court finds there are reasonable grounds for the objection, it is not to require the witness to give that particular evidence and is to inform the witness of certain matters as set out in s 128(2). In the event that the Court is satisfied that the interests of justice require the witness to give the evidence the Court may require him or her so to do. In such a case the witness is to be given a certificate in respect of the evidence pursuant to s 128(6) of the Act.

34 Neither Danielle nor Cormack Champion objected to giving any evidence in the course of the trial.

35 By ground four the appellant seeks to complain that the trial judge failed to satisfy himself in each case that Cormack and Danielle Champion were aware of the effect of s 128. Section 132 of the Evidence Act requires that the Court satisfy itself that a witness is aware of his or her right to object to giving evidence where it appears that the witness may have grounds for making an objection. As I have noted, I am not persuaded that the evidence given by Cormack or Danielle Champion gave rise to the reasonable suspicion that either was criminally concerned in the arson. In this sense there was nothing to cause the trial judge to satisfy himself that Danielle or Cormack Champion were aware of the right to object to giving evidence.

36 Mr Papayanni contended, during the course of oral submissions, that Danielle and Cormack Champion should have been made aware of their right to object to giving evidence since the evidence might (in each case) tend to prove that she or he had committed the offence of concealing a serious offence (Marshall’s arson of the fruit shop) contrary to s 316 of the Act. There was no evidence as to the circumstances in which Danielle and Cormack Champion came to speak with the police concerning her or his knowledge of the arson. I do not consider that the trial judge was required to satisfy himself that Mr and Mrs Champion were aware of their right to object to giving evidence upon this footing. If contrary to this view, the trial judge erred in failing to so satisfy himself, I would not in any event see merit to this ground. It is Mr Papayanni’s contention that, had Mr and Mrs Champion been advised of their right to object to giving evidence (and had they exercised this right), certain of their evidence may not have been given. In the event that Danielle and Cormack Champion (or either of them) objected to giving evidence of knowledge of Warwick Marshall’s involvement in the commission of the offence, the likelihood is that the trial judge would have required each to give the evidence in accordance with s 128(5).

37 Section 132 imposes an obligation on a trial judge to inform a witness or party that he or she may have grounds for making an objection to giving evidence. This provision operates to ensure fairness to the witness or party who has a basis for making an objection. In the event that the trial judge failed to comply with the obligation cast upon him in this case I am not persuaded that such a failure amounts to a wrong decision on a question of law or gives rise to a miscarriage of justice for the purposes of s 6 of the Criminal Appeal Act 1912. I would reject this ground of appeal.

Ground 5

His Honour erred in law in admitting certain of the evidence of Danielle Champion on pp 47, 48 and 49 of the transcript and Cormack Champion on pp 67, 68, 69 and 70 of the transcript and/or not directing the jury to ignore such evidence.

38 This ground was not particularised in any greater detail in the written submissions filed on the appellant’s behalf. Those submissions simply contended:

“Inadmissible evidence was given by Danielle Champion on pp 47, 48 and 49 and Cormack Champion on pp 66, 67, 68, 69 and 70 all of which were objected to by counsel. His Honour should have directed that this evidence was hearsay and should be ignored when considering the evidence.”

39 In the course of oral submissions Mr Papayanni identified the following passages as the subject of complaint in the evidence given by Danielle Champion:

“Q. Did you see him do anything at the fruit store?
A. I heard him, like I heard him yell out across the road ‘oh, my God, my shop, what happened’ just, and then make jokes about all the burnt fruit, just stupid things, but he did go across the road and talk to the owners of, I think it was the charcoal chicken shop, but that’s when I left (T 47; 28-02-01).
…
Q. Did you know that at that time Warwick was using heroin?
A. I – at the time yeah, I probably – yeah, I did, I knew he was using heroin - I think. I knew where he dumped the other – he told me, he actually told me where he dumped the other padlock, which was out near Cabramatta, so I would’ve known (T 48; 28-02-01).
…
Q. No, I’m not asking you what you believed, just what, if you can recall what was said to Mr Ahmed. You said that Cormack had said ‘I know about the fire and how Warwick burnt the shop down.’?
A. Yes, and then Cormack said ‘we believe that Warwick robbed our house’, to Eddie ‘and we want our stuff back,’ along the lines of that. I don’t remember any of the rest of the conversation except when we were about to leave and Eddie said ‘I’ll see what I can do about getting your stuff back off Warwick and, whatever stuff he took’, and then he went on to say ‘and now about these padlocks.’ And that’s all I really remember (T 49; 28-02-01).”

40 Mr Papayanni identified the following passages recorded in the transcript of the evidence of Cormack Champion as the subject of ground five.

“Q. You’d found out that Warwick had burnt the place down, burned the fruit store?
A. Yeah, they were talking about it and I went in and Warwick said he’d burnt his work down and I said ‘where do you work?’ and he said ‘the fruit shop.’ And I said ‘what for?’ And Danielle had just said ‘I can’t believe you did it.’ and all that sort of stuff. He said ‘insurance job.’ (T 66; 28-02-01).
…
Q. All right, tell us about the padlocks, where did you notice them?
A. I noticed them in the back of the van. I was looking at, we put the lounge into the van, I was travelling in the back, Danielle and Warwick were in the front, and we were just about to go, I was looking at the padlocks and I asked Warwick if I could keep them and, just because I thought they were handy, and Danielle said no, she didn’t want me having them. And Warwick said no, he had to get rid of them, they were the padlocks from work (T 67; 28-02-01).
…
A. … I think Danielle said ‘there’s someone coming.’ Or something like that. … Warwick said that he’d thrown the clothes out the back and maybe that wasn’t a good idea. And I said ‘oh well’, you know, I remember saying something like it wasn’t, you know, it shouldn’t really matter. And then he said ‘yes, just that one of the padlocks was in the pocket’, but the two keys and the remaining padlock were still in the back (T 68; 28-02-01).
…
Q. Now can you tell us about when you spoke with him, did you say the Easter weekend?
A. On the Easter weekend, Warwick had been around at my parents’ house a fair bit leading up to that, and my family went away for Easter and when we got back, on I think Easter Sunday night, we discovered the house had been broken into. Danielle had said something over the weekend that …
OBJECTION.
Q. And you suspected Warwick?
A. Well we suspected Warwick had done it, yeah. So on Easter Monday we went over to – after looking for Warwick, unable to find him, we went over to Eddie’s house to see if, for various reasons, but basically to see if he could help us to see if he could – knew where Warwick was or if he could put any pressure on Warwick, because we were quite convinced that Warwick had a lot to do with the break-in.
Q. And so the intent was to, for Eddie to put pressure on Warwick?
A. Yeah. That was the only thing we could think of ….
Q. All right, well what happened when you got to Eddie’s place, what did you say to him?
A. Well we got to Eddie’s house, went up on to the front porch and knocked on the door. Eddie’s wife went out to get Eddie, Eddie came out the front. I started out by saying, like our house had been broken into and we think Warwick had done it and Eddie said ‘right.’ And then I said ‘look I don’t expect you to say anything’, and I said this a few times sort of when Eddie looked a bit concerned, I said ‘I don’t expect you to say anything or anything but I want you to know that Warwick told us about the shop and, you know, his involvement and your involvement and all that sort of stuff.’ And I said ‘I don’t care, I just …
OBJECTION.
EXACT CONVERSATION.
HIS HONOUR: Yeah, I gathered …
Q. Are you using the words …
A. Yes, pretty much.
Q. … that you used then?
A. Yeah, pretty much.
CROWN PROSECUTOR: Q. Just start again?
A. I said ‘Warwick told us about the shop fire and that’, you know, he’d, why he’d done it and all that sort of stuff, and Eddie’s reaction to that, he said ‘he told you that?’ And I said ‘yeah, yeah, now’, I then repeated ‘I don’t expect you to say anything, don’t say anything, I don’t care about your business or any of that sort of stuff, all I’m interested in is my family and what’s happened now.” Eddie then said – sorry, I then said ‘Warwick – I also know that Warwick told you that he’d done it with a friend because you told him that he was going to get, they were getting money each and Warwick told you that he’d done it with a friend to get more money where in – as in fact he did it on his own.’ And Eddie’s just looking at me arms crossed, nodding. And I said ‘he also told you that he’d gotten rid of the padlocks but I happen to know where one of them is that he hasn’t gotten rid of them’ (T 68 - 70; 28-02-01).
…
A. … and Eddie then said ‘OK now, you said something about padlocks’. And I said ‘yeah. Now I know these padlocks you know, could be a problem, Warwick’s been very sloppy, it could be a problem if the padlocks were discovered. I know where one of them is, the keys and the other one, you know, I don’t know about, but I know he told you he got rid of them both and one of them is with his petrol soaked clothes.” I gave Eddie the impression …
OBJECTION.
WITNESS: Just say exact words, okay. I said ‘now I know where this padlock is, I could, you know, I know you wouldn’t want it discovered, I could sort of, you know, if it was found and it was cut then it wouldn’t be such a problem but if it is found as it is and it hasn’t been cut and it’s been, you know, a key has been used in it, you know, it could be a problem.’ And Eddie said ‘well look, I’ll’, Eddie said ‘look I’ll tell Warwick I’m in the market for a computer and I’ll see what he says and want to buy a cheap computer, we’ll see what he says, you know, then I’ll see what I can do about whether he broke into your house and getting your stuff back’ I said ‘ well I’d appreciate that.’ And he said ‘I won’t say anything to him about’, he said ‘I won’t say anything to him about you coming around to begin with, I’ll just tell him I’m looking for a computer and we’ll see how it goes.’ And I thought okay, so that went well. The next morning Warwick rang up saying that ‘what’s this about you accusing me of having broken into your house?’ (T 70/71; 28-02-01).

41 Contrary to the written submissions filed on behalf of the appellant, none of the evidence, the subject of ground five, was objected to by Mr Sandilands at trial. In such a case it is difficult to make good a challenge that the trial judge erred in law in admitting it.

42 Mr Papayanni characterised the Champions’ evidence as to statements made to them by Warwick Marshall (set out above) as “second-hand hearsay”. His submissions appeared to involve a misconception as to the effect of s 66 of the Evidence Act. Warwick Marshall gave evidence at the trial. The statements made by Warwick Marshall on 28 March 1999 concerning the fire and the disposal of the padlocks were made at a time when these events were relevantly “fresh in the memory”. Accordingly, it was open to the Crown to lead evidence from Danielle and Cormack Champion as to the representations made by Marshall in her or his presence as the case may be; s 66(2) of the Evidence Act. This evidence was relevant. It was necessary for the Crown to prove that Warwick Marshall set fire to the premises.

43 Mr Papayanni contended that the evidence of Danielle and Cormack Champion concerning the contents of Cormack Champion’s conversation with the appellant on or about Easter Sunday night was not relevant. I do not agree. The appellant’s conduct in the face of the assertions made by Cormack Champion, together with his statement to the effect “okay now, you said something about padlocks”, was capable of being viewed as an admission.

44 As noted in paragraph [36] above, it was contended that the trial judge should have directed the jury that the evidence of Danielle and Cormack Champion (set out above) was hearsay and should be ignored when considering the evidence. The judge was not required to direct the jury that this evidence should be ignored. If requested by a party (unless he was of the opinion that there were good reasons for not doing so) the trial judge would have been obliged to warn the jury that the evidence of Danielle and Cormack Champion as to representations made by Warwick Marshall in their presence was evidence of a kind that maybe unreliable; s 165(1)(a). No such request was made. As noted above, s 165(5) preserves the power of the judge to give appropriate warnings to a jury notwithstanding the absence of a request from the parties so to do. There is nothing in the evidence, the subject of ground five, which in my view required the judge, in the absence of a request, to give a warning or other direction. The appellant needs leave pursuant to r 4 of the CAR to rely upon this ground. I would refuse it.

Ground 6

The sentence was excessive in the circumstances.

45 No written submissions were advanced in support of this ground. No error has been identified in the exercise of his Honour’s discretion. This was a serious offence. It carries a maximum penalty of fourteen years imprisonment. Offences of this character, as his Honour noted, require that considerations of general deterrence be given appropriate weight. The appellant is a person of otherwise good character. The sentencing judge took this into account. In my view the submission that the sentence is excessive, in the sense that it falls outside the range of the sound exercise of discretion, cannot be sustained. I would propose that leave to appeal against the severity of the sentence be allowed but that the appeal be dismissed.

46 For these reasons the orders which I propose are:

(i) Dismiss the appeal against conviction;
(ii) Grant leave to appeal against the severity of sentence;

(iii) Dismiss the appeal against sentence.

**********