R v ASHTON - [2008] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v ASHTON
[2008] SADC 15
Decision of His Honour Judge Muecke
3 March 2008
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
Two counts of arson - disputed facts as to the circumstances of the second count of arson whereby significant damage was caused to Map the Miner, a statue at Kadina.

R v ASHTON
[2008] SADC 15

In the early hours of Thursday 1 June 2006 the accused and some of his friends were driving around Kapunda. The accused was driving. They stopped at Gundry’s Hill lookout, where the accused got out of the car, moved a green Council wheelie bin to the middle of the car park and set it on fire by pouring a liquid known as Eranol into it and lighting it with a cigarette lighter. Eranol is a hazardous and dangerous substance. It is highly flammable in its liquid and vapour form.
After this incident the accused and his friends drove to the car park of “Map the Miner” at the southern entrance to Kapunda. The accused got out of the car, poured Eranol onto, at least, the base or plinth on which Map the Miner stood. He then lit the Eranol with a cigarette lighter. He then stood back and took a photograph of the resulting fire. Approximately $100,000 damage was caused to Map the Miner by fire.
The accused was charged with two counts of arson arising out of the events of that early morning. He was charged with arson relating to the damage by fire to the wheelie bin which was the property of the Light Regional Council, such damage amounting to not more than $2,500. On 13 June 2007 the accused pleaded guilty in the Elizabeth Magistrates Court to that charge. On the same day he was committed for sentence in this court.
The accused was also charged with arson in respect of the damage by fire caused to Map the Miner, being the property of Light Regional Council, such damage amounting to more than $30,000. On 13 June 2007 the accused pleaded not guilty in the Elizabeth Magistrates Court to that charge. On the same day he was committed for trial in this court.
On 3 September 2007 the accused was arraigned in this court upon an Information dated 16 July 2007 on a charge of arson that related to Map the Miner. The particulars of that offence were that he, on 1 June 2006 at Kapunda, knowing that he had no lawful authority to do so, intentionally or with reckless indifference damaged by fire a statue known as “Map the Miner” the property of Light Regional Council, the said damage amounting to about $95,000. The accused pleaded guilty to that offence on that Information.
This court was informed that there was a dispute as to the facts surrounding the charge and its particulars. A hearing as to that dispute was listed for 30 November 2007. On 30 November 2007 a disputed facts hearing came on before me. I was informed of what the dispute was.
I was informed by counsel for the DPP that the DPP accepted the following propositions that had been put on behalf of the accused:
First, the accused lit the fire for the purposes of taking a photograph as a prank.
Secondly, when the accused did so he had the intention of putting the fire out before it developed beyond a fire that would be able to be put out.
Thirdly, the accused took a photograph of the fire whilst it was alight.
Fourthly, the accused attempted to put the fire out and left the scene of the car park where Map the Miner stood in the belief that the fire had been put out.
Following submissions by both counsel it appeared that the DPP accepted, for the purposes of sentencing the accused, that in addition to the above propositions the accused did not know at the time of the incident that Map the Miner was hollow and that it was flammable. The expert evidence is that Map the Miner was flammable, it was hollow and that it continued to burn after the accused had left the scene thus causing significant damage to it. I proceed on the basis that there is no dispute that Map the Miner suffered extensive damage that cost a significant sum to repair.
What was in dispute between the prosecution and the defence seemed to narrow as I heard submissions from both counsel before any oral evidence was adduced.
Defence counsel submitted that the accused simply intended to create a ring of fire around Map the Miner and that he poured accelerant only around the base of Map the Miner, although the accused accepted that some accelerant went onto one of Map the Miner’s feet. Counsel for the DPP submitted that the dispute was whether the accused only poured or splashed accelerant around the base of Map the Miner as opposed to further up his legs, and whether the accused simply intended to create a ring of fire around the base of Map the Miner.
Counsel for the accused then submitted that the issue was as to how far up the legs of Map the Miner the accelerant went. The accused accepted that it went on part of the right foot and the right leg of Map the Miner, but not to the same height as submitted by the prosecution. Counsel for the accused submitted that the accused accepted that what he did was likely to have caused some damage to Map the Miner by way of smoke damage or scorching, although the accused held the belief that Map the Miner was made out of cement and not a flammable material.
I shall proceed on the basis that the dispute was whether, when the accused poured accelerant in the vicinity of the plinth on which Map the Miner stood, he poured it only on the plinth, or whether he poured it on, or knew that it had come into contact with, Map the Miner itself and if so, what was the extent to which it came into contact with Map the Miner. That finding may bear on whether or not the accused’s intention was solely to create a ring of fire around Map the Miner.
Kapunda is an historic copper mining town north of Adelaide. Map the Miner is a 6 to 9 metre tall statue of a miner which greets visitors as they drive into the town of Kapunda. The statue is mounted on a concrete plinth. The statue is a monument to the profound role and contribution of the Cornish miner in the Kapunda region and, in due course, in other mines in South Australia. The statue was named Map Kernow, being the Cornish dialect for “Son of Cornwall”. It was unveiled on 5 June 1988.
Map the Miner originally cost approximately $200,000. The Rotary Club of Kapunda commissioned the project and hired a sculptor Ben van Zetten as the original creator. That same person conducted the repairs on it after the fire in the morning of 1 June 2006.
Map the Miner is a representative of the mining community and he represents the history of the community. The results of what the accused did has had a monumental affect on the community. It was seen as a direct attack on the community and on the goodwill generated by the hardworking people of it.
By about 7.00am on 1 June 2006 Map the Miner was seen to have been partially burnt causing what appeared to be major damage around its right leg, with the whole front of the statue suffering scorching or melting. The damage to its right leg was right down to the concrete plinth. The concrete area around the feet of the statue appeared scorched in several areas.
A police fire investigator concluded that human involvement was required for the fire at Map the Miner to have occurred. That involvement was obviously the accused when he used a cigarette lighter to set fire to the liquid accelerant Eranol around Map the Miner. The expert said that if a flammable liquid was used (as it no doubt was) he would expect to see a large amount of flames which would then reduce in size after the initial ignition of the liquid accelerant vapours. He said that it would have been possible for someone at that time to extinguish any such fire, but that the fire may still be burning on the inside of the statue. Such a fire burning or smouldering inside a leg of the statute may not have been clearly visible. If smoke was still present that would tend to indicate that a fire, likely smouldering, was still burning. It was a windy night with some shower activity. The expert said that the wind would assist a smouldering fire to continue to burn and increase in intensity. He said that Map the Miner had a hollow core. If the initial fire had burnt through to the fibre glass material and entered the inner core area then flames would not be visible from outside the statue. It would be unlikely that any rain on the night would have extinguished the fire burning inside the leg of the statue. If smoke was seen in the area of the statue then any fire causing that smoke would develop into a much larger fire. If anyone in the vicinity had driven away and not returned they would not have seen or been aware of the continuing fire.
If any fire caused by an accelerant was not fully extinguished when the accused left the area it would continue to burn as described by the expert. That is obviously what happened.
Nicholas Thompson was called by the prosecutor on the disputed facts hearing to give oral evidence. He was one of the young men who were in the car when the accused was driving around in the early hours of Thursday 1 June 2006.
Mr Thompson described the earlier incident with the wheelie bin at Gundry’s Hill when the accused splashed Eranol onto the bin and lit it. Mr Thompson said that after that occurred someone said “Let’s go to Map, I’ve got a camera and shit.” He said that someone said “We’ll burn him – not burn him – set him alight, whichever one”. He said he could not really recall who said that but he thought it might have been the accused or one of the others, whom he named. He said he was “pretty sure”.
Mr Thompson’s evidence was that they then drove to where Map the Miner was. He said the accused jumped out of the car and once again grabbed one of the bottles and he splashed the accelerant onto Map and then ignited it, stood back for a while and then took a picture. He said that the accused was splashing Map in “his (Map’s) crotch area, leg”. He said that the accused used an underarm motion to splash the statue. He said the accused was standing on the ground when he did that, not on the plinth upon which Map stood. He said that he observed this from where he was in the back seat of the car. He said that he was pretty sure that the accused used an underarm motion to splash the Eranol on Map two or three times. He said the liquid splashed to Map’s crotch area. He said he was “pretty positive” that he saw the accused using an underarm motion and that he saw the liquid splash onto the statue. He later said that he saw the accused empty the entire bottle.
When cross-examined Mr Thompson said that it was possible that it was raining at the time the accused was splashing the Eranol on Map and lighting it. He agreed that it was a possibility that water was running off Map the Miner.
Mr Thompson agreed with the cross-examiner that it was a possibility that from where he was sitting in the car the accelerant did not make it all the way to Map’s crotch area. Mr Thompson was asked to look at a photograph of Map the Miner with the accused standing in front of it. That was Exhibit D2. Mr Thompson then agreed that Map the Miner’s crotch area is significantly higher than the top of the accused’s head in the photograph, and that it appears to be about twice the accused’s height. When it was suggested to him that the Eranol went no higher than the chest area (presumably of the accused in the photograph) at or about the base of Map the Miner and possibly some on the leg and on the foot, Mr Thompson agreed that perhaps that was what was more likely to be what the accused did on that night. He then said that what he saw was obviously different to what actually happened. He said that he was obviously wrong because he couldn’t now see the accelerant splashing all the way up to the crotch of Map the Miner.
During re-examination Mr Thompson said his memory of what occurred was that the accused was standing in front of Map the Miner and splashing the liquid on him (being Map the Miner). He said he could not now recall where it actually was being splashed. He said that he knew his statement said that it was in the crotch area. He was asked how high did he now say that the liquid was splashed. He said that he would just say on Map the Miner’s “foot, knee”. He said “I would say knee”.
The accused gave evidence. He was 18 years old at the time he committed the two offences of arson in the early hours of 1 June 2006.
The accused said that he was on afternoon shift on the day before the night of these events. He finished around midnight. When he left work he took two bottles of Eranol with him. A couple of weeks before there had been a bonfire at a mate’s place in Kadina and there was going to be a bigger bonfire, and he was going to make it even bigger with the Eranol.
The accused said that when he left work he picked up some friends. They were intending to drive around as they normally would after work. He said that there was not much to do in Kapunda, especially at night.
The accused said that at Gundry’s Hill he dragged a wheelie bin into the middle of the car park and poured a bit of liquid into it and lit it. The bin tipped over as it got hotter. He said the rain or drizzle put it out. They stayed there for another 20 minutes before they left.
The accused said it was drizzling most of the night and windy most of the time.
The accused said that the group ended up in the car park of Map the Miner. That was where he had an idea of putting a ring of fire on Map the Miner and taking a picture as a practical joke. Someone said “That’s a bad idea”. He said “Don’t worry, I’m going to put it out”.
The accused said that he got out of the car with the same bottle that he had used at Grundy’s, so that it already had a bit out of it. He had told police when interviewed by them on 10 June 2006 that it was a Coke bottle. The accused said that he walked up to the statue, got on top of the platform and he “underarmed” the bottle on the platform. The wind was blowing it as he did that, and “that’s what put it onto the leg, or a bit on the foot and the leg” of Map the Miner.
The accused was asked where precisely did the Eranol go. He answered “mainly around the front of him; it was only the front half that was on the platform”. He was asked what he meant by “a ring of fire”. He replied that it was “just a half a circle around the front of him”. When asked where did most of the Eranol go the accused replied: “Most of it was on the platform”. When asked whether some went on Map the Miner the accused said “Yes it did”. He said it went “onto its leg, but knee at the highest”. He said that happened “Mainly from the wind”. He said that some of the Eranol would have gone on the foot of Map the Miner from “when (he) was splashing it but any higher the wind blew it up”. He said that he was aware at the time of where the Eranol was going.
The accused said that after that he hopped off the platform and lit it with his lighter. He had his camera ready and by the time he took the picture “the flames had already died down to a small ball … just around the platform and his foot”. After the flames died down and he got back on the platform they were probably only a foot and a half high at their highest. He said the flames were still dying because of the rain. He said he stomped on the remaining flames with his foot, had a look, nothing seemed to be flaming or even smoking, so he left and returned to the car. He said that there was smoke or mist or steam in the air at the time but nothing actually coming from Map the Miner itself.
The accused said that he accepted that he knew there would be some damage to Map the Miner but he thought that would be confined to a bit of scorching and mainly smoke damage. He thought Map the Miner was cement and was not made of anything flammable. He said that he accepted that some of the fire came in contact with the statue as distinct from the platform on which stood.
The accused said that what he did was probably “the most stupidest thing (he) had ever done” and that he was sorry for it.
During cross-examination the accused repeated that the highest the Eranol that he splashed on Map the Miner went up to one of his knees. He said he was facing towards the statue as he splashed the accelerant towards it. He was standing in between the legs of Map the Miner on the platform in front of it. The accused agreed that when he lit the Eranol he knew that Eranol was on Map the Miner and on a leg of Map the Miner.
Conclusions
The evidence that I heard and that was before me through the declarations of persons who were not called to give evidence satisfies me of the following matters beyond reasonable doubt.
1I find that before the accused and his friends drove to where Map the Miner was the accused, using an accelerant Eranol, set fire to the contents of a wheelie bin at Grundy’s Hill lookout thereby intending to destroy its contents and the bin itself.
2I find that the accused then drove to the area where Map the Miner was. He intended to cause a fire where the statue was. He alighted from the car carrying a bottle which contained Eranol. He knew that substance was highly flammable. I am unable to find how full the bottle of Eranol was or how much it contained. I am satisfied it contained a significant amount of Eranol.
3I find that when the accused alighted from the car with the Eranol it was his intention to use the Eranol to cause a fire such that the flames of it, when ignited, would cause flames of significant intensity and height from the area around the feet of Map the Miner so that he might immediately back away from the statue and capture a photograph which would show significant flames around the feet of Map the Miner. He intended that the flames would appear in the photograph to surround Map the Miner.
4I find that it was the accused’s intention to do that as a prank. It was not his intention to cause significant damage by fire to Map the Miner. I find that he did not think that Map the Miner would burn because he believed it to be made of non-flammable material.
5I find that the accused stood up on the plinth upon which Map the Miner stood and splashed Eranol to the front and around to the sides of Map the Miner’s feet. He splashed a considerable quantity of accelerant onto the top of the plinth in the area of Map the Miner’s feet and, although I cannot find beyond reasonable doubt that he intended to splash accelerant onto a foot or the feet of Map the Miner, he knew, as he was splashing accelerant, that some had gone on to at least the right foot of Map the Miner. Although I cannot be satisfied beyond reasonable doubt that the accused intended to splash accelerant onto either leg of Map the Miner, I find that he knew that some accelerant had splashed onto Map the Miner’s right let up to the area of where his knee would be. I find that with that knowledge the accused knew that when he lit the accelerant that the accelerant that was on the right foot and right leg of Map the Miner would ignite into flames. I consider that these findings are consistent with the accused’s intention to produce a spectacular photograph with flames surrounding the front and sides of Map the Miner.
6I find that the accused at all times intended to extinguish the fire and flames that he intended to cause and did cause as a result of igniting the accelerant he splashed about the statue.
7I find that after taking his photograph the accused mounted the plinth again and, by using his feet, sought to extinguish all the flames that remained on the statute itself and on the plinth upon which it stood.
8I find that when the accused and his friends left the area the accused thought that he had successfully extinguished the fire and flames he had caused.
9I find that the accused knew at the time of the incident that some damage would be caused to the statue by his actions, but he did not consider that such damage would be any more than scorching and smoke damage.
10I find that the accused’s actions, however, caused significant damage to Map the Miner, being damage amounting to about $100,000.

I shall sentence the accused on the basis of these findings.