R v Brookes

[1996] QCA 22

IN THE COURT OF APPEAL	[1996] QCA 022
SUPREME COURT OF QUEENSLAND

C.A. No. 456 of 1995

Brisbane

[R v. Brookes]

THE QUEEN

v.

VICTOR HUGH BROOKES

(Appellant)

Macrossan CJ
Fitzgerald P

Davies JA

Judgment delivered 23/02/1996

Judgment of the Court

Appeal dismissed

CATCHWORDS:CRIMINAL LAW - arson and false pretences - whether no other

hypothesis consistent with innocence.

CRIMINAL LAW - evidence - discretionary exclusion - whether evidence of inflated insurance claim should be excluded - whether evidence of eradication of tracks at the scene should be excluded

Counsel:	Mr Glynn, with him Mr Darveniza for the appellant.
Mr Byrne QC for the respondent.
Solicitors:	K.J. Seaniger and Associates for the appellant.
Director of Public Prosecutions for the respondent.
Hearing Date: 8 February 1996 Judgment delivered 23/02/1996	REASONS FOR JUDGMENT - THE COURT

This is an appeal against conviction on counts of arson and false pretences.

The appellant was the owner of a house at Finch Hatton which was destroyed by fire in the late hours of 26 April 1995. The Crown case was that the fire was deliberately lit and the destruction of the house had been arranged by the appellant. At the time, the building and its contents were covered by insurance.

The Crown case was supported by admissions made by the appellant in interview with investigating police officers. In substance he admitted that he arranged for a friend, named by him as Michael Salty, to set fire to the house having in mind that he would make what would then be a fraudulent claim under his insurance policy. There was evidence that the contents cover and a subsequent claim lodged by the appellant stated figures well beyond the value of the contents within the house at the time of the fire.

The admissions which had been made by the appellant to the police were contained in a record of interview not originally electronically recorded but in relevant aspects they were substantially repeated in a further interview which was so recorded. The role arranged to be played by the appellant's friend, Michael Salty, appears in these two sources. There was no challenge to the use made of the interviews by the Crown in proof of its case. Apart from the confessional material there were other circumstantial features which the Crown claimed supported its contentions.

A number of properties including the house and contents in question were covered under the insurance policy referred to, but on 23 March 1995 the insurer concerned had written to the appellant advising that for reasons not relevant to the present issues it would not be renewing that insurance after 13 May 1995. On 15 April 1995 the appellant paid a visit abroad and did not return until 13 May. No replacement insurance cover had been arranged. Admissions made by the appellant to the police were that on a date which he could not specify but which "would have been March" he asked Michael Salty to get rid of the house for him. He conceded that a reference to burning or fire was made in the conversation when the arrangement with Salty was made. He also agreed that in making the arrangement he had in mind the matter of insurance.

The evidence showed that persons at the scene shortly after the fire found footprints and tyre tracks near the house and also signs of partial erasure of those features. The appellant in interview said that while he was overseas he had telephoned the father of Michael Salty and was informed by him that the house had burned down. The appellant told the police that when he heard the house had burned down he himself concluded that Michael Salty had burned it. At a further stage in the interview the appellant made some reference to an unfriendly relationship with a previous occupant of the house and also he spoke of a faulty light-switch in the building.

Notwithstanding the fullness of the Crown case and the extensive admissions made, counsel for the appellant submitted that the conviction was unsafe. Particular submissions were that the jury should not have been permitted to use the evidence of footprints and tyre marks found near the house or the value of the items actually within the house at the time of their destruction. It was suggested that innocent agencies unconnected with the destruction of the house may have caused the marks and footprints and that a claim in respect of contents made at a higher value than could be justified did not mean that the appellant had been involved in any plan for their destruction. These submissions should not be accepted because the evidence in question had a legitimate place within the Crown's circumstantial case even though as separate items standing alone they were not sufficient to establish it independently. Signs of human agency in the area of the house discovered recently after the fire formed part of the general circumstances which could be regarded when the jury was considering the critical questions relevant to proof of guilt. Also, evidence which might suggest that an overclaim had been made in respect of the contents was relevant to the jury's consideration of possible motive when it considered the strength of the Crown case.

The principal objections to the acceptability of the Crown case as a sufficient foundation for verdicts which could be regarded as safe and satisfactory were that it did not show that any human agency had set fire to the house or that it had been done deliberately or done through the arranged agency of Michael Salty. The submission seemed to be that even though there was a clear admission that the appellant had arranged for Michael Salty to destroy the house he may not have carried out the arrangement or may have been forestalled as a result of the operation of other agencies. Whilst such possibilities are theoretically open they are essentially speculations in the present case. There was no substantial competing hypothesis established by the evidence apart from that advanced by the Crown. Neither the appellant nor Michael Salty gave evidence and the jury were left with the inferences which they might have considered arose from the matters proved by the Crown.

At the heart of the Crown case was the close temporal connection between the arrangement made by the appellant with Michael Salty and the happening of an event corresponding with what had been arranged and there was also the fact that it occurred during the timeframe covered by the appellant's insurance. These connections very much strengthened the case which the Crown sought to establish and the jury obviously thought it persuasive.

On the evidence it was open to the jury to find beyond reasonable doubt that the Crown had proved its case with all reasonable hypotheses consistent with innocence excluded. When this Court considers for itself the strength of the case made on the evidence below there is no reason to conclude that there is anything unsafe or unsatisfactory in the verdicts. The appeal should be dismissed.