R v Bates

[1997] QCA 482

[1997] QCA 482

COURT OF APPEAL
DAVIES JA
McPHERSON JA

MUIR J

CA No 372 of 1997
THE QUEEN
v.

GREGORY RALPH BATES	Appellant
BRISBANE ..DATE 07/11/97 071197 T5-6/JAP/20 M/T COA 253/97

DAVIES JA: The appellant was convicted in the Supreme Court after a trial on 8 September this year of manslaughter and arson. On the first of those counts he had been indicted for murder but was convicted only of manslaughter.

The case against the appellant as to manslaughter and arson was, in my view, an overwhelming one. On the night of 18 December 1996 a house at 75 Broadway Street, Woolloongabba burnt down. A man named Alexander Rogaloff, who was in the house at the time, was killed in the fire. The charges to which I have referred arose out of the lighting of that fire.

The appellant knew Mr Rogaloff and some other residents of the house. He had apparently been a reasonably frequent visitor. When first interviewed by police he said that the last time he went to that house was on the previous day and he gave an improbable explanation for his presence at the scene of the fire on the night in question.

In a subsequent interview which was tape recorded the appellant admitted that he went to the house that night feeling depressed and looking for someone to have a drink with him. He said that he could find no one and sat on a lounge settee under the house drinking. He said he then set fire to the settee on which he was sitting with a cigarette lighter with a view to ending his own life. He said he then changed his mind and left. After he had left he saw that the house was alight.

071197 T5-6/JAP/20 M/T COA 253/97
The appellant gave no evidence at the trial. However there was
uncontradicted opinion evidence at the trial that accelerant was
used to start the fire and that it was most likely that the fire
was a deliberate one. The expert evidence was also to the
effect that the fire had, in fact, commenced at a point other
than that which the appellant said it commenced, that is, at the
settee.

Even without the opinion evidence to which I have just referred, on the appellant's own admission (which the jury must have accepted) he wilfully set fire to the house. The fire was lit recklessly, in my view, in circumstances in which the appellant must have foreseen that setting fire to the house was a likely result. That is sufficient to constitute wilfully setting fire to the house within the meaning of that term in the Code. See R v. Lockwood [1981] Qd R 209, and R v. T, C.A. No. 306 of 1995. So that even on the admission against interest of the appellant a reasonable jury, in my view, must have concluded that he was guilty of arson and manslaughter. However, a reasonable jury in my view could not have rejected the expert evidence to which I have referred and, as I have said, on that evidence they must have concluded that the appellant intended to set fire to the house.

It is surprising in those circumstances that the appellant was not convicted of murder. It appears at least likely, although it is unnecessary to speculate on this, that it was a compromised result reached by the jury. They may well have been encouraged to that result by a direction which Mr Glynn, for the appellant, concedes was unfairly favourable to his client which 071197 T5-6/JAP/20 M/T COA 253/97

directed the jury that they could find the appellant guilty of
arson but not guilty of murder.

Mr Glynn submits that this somewhat illogical conclusion was reached because the jury must have taken into account the lies and been effected by a direction which the learned trial Judge gave with respect to those but, in my view, that is not so. Furthermore, as I have already indicated, I think that a reasonable jury must have convicted of arson and of, at least, manslaughter even if the trial Judge had given the fullest possible direction in accordance with Edwards v. The Queen (1993) 178 CLR 193. In those circumstances it is not necessary really to consider the adequacy of a direction given by the learned trial Judge with respect to lies and I would therefore dismiss the appeal.

McPHERSON JA: I agree.

MUIR J: I agree.

DAVIES JA: The appeal is dismissed.

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