R v Chappell

[1994] QCA 295

IN THE COURT OF APPEAL [1994] QCA 295

SUPREME COURT OF QUEENSLAND	C.A. No. 73 of 1994
Brisbane [R. v. Chappell]

T H E Q U E E N

v.

NOEL GEORGE CHAPPELL (Appellant)

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PINCUS J.A. DAVIES J.A. WILLIAMS J.

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J udgment delivered 16/08/94

REASONS FOR JUDGMENT - THE COURT
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APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.
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CATCHWORDS:CRIMINAL LAW - CONVICTION - appellant convicted of arson - strong uncontradicted circumstantial evidence against appellant - whether failure of the appellant to obtain legal representation rendered the trial unfair

Dietrich v. The Queen (1992) 177 C.L.R. 292

CRIMINAL LAW - SENTENCE - whether sentence of three years imprisonment with recommendation for eligibility for release on parole after serving eight months within appropriate range

Counsel:The Appellant in person Mr J. Hunter for the Respondent

Solicitors:The Director of Prosecutions for the Respondent
Date(s) of Hearing:29 July 1994

R EASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/08/1994

The appellant was convicted of arson in the District Court at Rockhampton on 10 February 1994. The arson was of a house in North Rockhampton owned by the appellant and his former wife. It had been the matrimonial home of the appellant and his former wife who had separated and later divorced. Pursuant to an order of the Family Court, the appellant was to have vacated the house by 18 August 1992. The fire the subject of the charge occurred in the house on 19 August 1992.

On that morning a strong smell of petrol emanated from the house and it was apparent that some interior curtains had been burned.

Subsequent examination of the premises revealed a carefully planned attempt to destroy them by fire. Accelerant, probably petrol, had been splashed liberally throughout the house and had been poured into numerous bottles suspended from ceiling rafters by twine. Trails of paper, twine and rags had been laid throughout the house. It was apparently the excessive quantity of accelerant and consequently inadequate oxygen which caused the fire to die.

The case against the appellant was a strong circumstantial one.
Evidence was given that he had previously made a number of
threats to his former wife and to others that he would burn the
house down rather than allow his wife to obtain it as it appears
she would do pursuant to the Family Court order. Shortly after
they separated in June 1990, the appellant told a neighbour of
his intention to "torch" the house so as to deprive her of it.
He made similar threats to his wife and at least an implicit
threat to other neighbours some time shortly prior to 19 August.

At the time of the fire, the appellant was not living in the house. He was living in another house in Rockhampton with a woman friend, her son, and his own daughter. He had, prior to the fire, removed a number of fixtures and fittings from the house. He admitted to police that early on the evening of 18 August he had gone to the house to collect mail. The evidence was that the mail was delivered between 2 p.m. and 3 p.m. each day. On that night he apparently left the house in which he was then living and by the following morning he had apparently driven to Gin Gin where his car had blown a tyre. Under a bridge on the road between Rockhampton and Gin Gin, over which he must have travelled to reach his destination, police found a bag containing bottles of accelerant, some gloves which matched marks found in the house, and some twine which matched the twine found in the house. Having repaired his tyre at Gin Gin, the appellant drove back to Rockhampton on the morning of 19 August and drove back to the house, he said to check the mail, but when he saw the fire brigade in attendance he did not stop.

The appellant admitted to police that he had made threats to burn the house and that he had removed property from it. He told an attendant at the service station at Gin Gin where he repaired his tyre that he had had to leave Rockhampton in a hurry. He also mentioned something of his wife.

The appellant conducted his own defence at the trial and conducted his own appeal. Although naturally unfamiliar with the law, he was articulate and appeared reasonably intelligent.

He conducted his appeal with competence. Nevertheless his first and it seems his main ground of appeal was that his trial was unfair because of his failure to obtain legal representation.

It appears that the appellant sought legal aid and was refused.
Prior to the commencement of the trial he appeared in court on
several occasions on each of which the trial judge urged him to
seek legal aid. On the second of those, he told the trial judge
that he had been told that he would not get legal aid unless he
was prepared to put a caveat over his mother's or his father's
house which he was not prepared to do. This may indicate that
the reason why he was refused legal aid was that it was thought
that he was not financially eligible rather than that it was
thought that his case did not have sufficient merit. However,
we are not prepared to assume that that was the reason. Indeed
in the absence of satisfactory evidence as to the reason, we are

prepared to assume, for the purposes of this appeal, that he was

refused on merit.
We think that the offence with which the appellant was charged
was a serious offence within the meaning of that term in the
judgments of the High Court in Dietrich v. The Queen (1992) 177
C.L.R. 292. It follows from that and from the assumption which
we have made that if, by reason of the lack of representation,
the trial was unfair, the conviction should be set aside.

However, we do not think that, in the event, the trial was unfair. The circumstantial case against the appellant was uncontradicted. Indeed, all of it except that relating to the bag found under the bridge, was, in effect, admitted. And although the appellant claimed that the Crown should have called his daughter, who was at the relevant time residing with him, the statement which the prosecution obtained from the daughter, placed before us by the respondent without objection from the appellant, indicates that his daughter could not have given any relevant evidence. In particular, she could not have accounted for the appellant's movements between 10.30 p.m. on 18 August and when he returned to Rockhampton the following day, during which time the fire must have been lit. The expert evidence given on that question was that it was probably lit between 2 a.m. and 5 a.m. on 19 August but could have been lit any time after 10 p.m. the previous evening. The sole question for the jury therefore was whether, on evidence which the appellant either did not contradict or could not have contradicted, he was guilty of lighting the fire. Other than in the other grounds of appeal to which we now turn, no unfairness was asserted and we are unable to see any.

The appellant's second ground of appeal was that the Crown failed to call his daughter. As we have already said that her evidence could not have been relevant, that ground must fail.

The third ground of appeal was that the bag and its contents which the police found under the bridge should not have been admitted into evidence. There is in our view no substance in that ground. The similarity of the twine in that bag to that found in the house, the petrol found in the bag, and the fact that the bag was found on the route taken by the appellant that evening, are sufficient to make it and its contents admissible in evidence. Their weight was, of course, a matter for the jury.

The final ground of appeal was that the learned trial judge failed to advise the appellant that if he did not give or call evidence the prosecutor would have no right of address. The appellant called but did not himself give evidence. The appellant however was plainly mistaken in thinking that the learned trial judge did not fully inform him of his rights in this respect. The transcript shows that his Honour fully and fairly informed the appellant of those rights and the appellant acknowledged that he understood what he had been told. There is therefore no substance in that ground.

There being no unfairness in the trial, the first ground of
appeal must also be rejected.
The appeal must therefore be dismissed.

The appellant also sought leave to appeal against the sentence which was one of three years with a recommendation that the appellant be eligible for parole after serving eight months of that term. On finding the appellant guilty, the jury also pleaded with the learned trial judge to be lenient to the appellant. It was no doubt in response to that plea and the recommendation to which we have referred was given. There can be no other basis for it.

The offence was plainly carefully planned and the appellant, by his denial of guilt, has shown no remorse. However, there was no-one living in the house at the time and, though there was the possibility of danger to neighbours, there was no great likelihood of personal danger.

A number of authorities were cited to us. These show, in our view, that a sentence of three years is well within the appropriate range for an offence of this kind. Moreover, the recommendation for eligibility for parole after serving eight months adequately reflected the plea for leniency.

The application for leave to appeal against sentence must also be refused.