R v Ciseau

[1994] QCA 473

IN THE COURT OF APPEAL	[1994] QCA 473
SUPREME COURT OF QUEENSLAND

C.A. No. 470 of 1993

Brisbane	C.A. No. 155 of 1994
[R. v. Ciseau]

THE QUEEN

-v-

KENNETH IVAN GARY CISEAU

(Appellant)

McPherson JA
Davies JA

Mackenzie J

Judgment delivered 8/11/94

Reasons for judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR EXTENSION
OF TIME WITHIN WHICH TO APPEAL AGAINST SENTENCE REFUSED.

Catchwords:CRIMINAL LAW - ARSON - Crown case based on statements against interest and circumstantial evidence - whether Crown Prosecutor's address had tendency to prejudice jury - alleged mis-statements of evidence and intemperate language - whether fresh evidence should be called.

CRIMINAL LAW - SENTENCE - application for extension of time in which to appeal

against sentence - delay - no prospect of success.

Counsel:Appellant in person M. Byrne Q.C. for the Crown

Solicitors:  Director of Prosecutions for the Crown

Hearing dates: 2 September, 31 October 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 470 of 1993

Brisbane	C.A. No. 155 of 1994
Before McPherson JA Davies JA Mackenzie J
[R. v. Ciseau]

THE QUEEN

-v-

KENNETH IVAN GARY CISEAU

(Appellant)

JUDGMENT OF THE COURT

Judgment delivered the 8th day of November 1994.

The appellant was convicted on 9 December 1993 of an offence of arson for which he was sentenced to three years imprisonment with no recommendation as to parole. He appeals against conviction and applies for an extension of time in which to appeal against sentence.

The appellant was the proprietor of a restaurant in Caloundra. A fire was started in it in the early hours of 13 May 1993 and substantial damage occurred. At the trial, there was no dispute that the fire was started deliberately, and the only question was whether the appellant was responsible for it. The Crown case was based on statements against interest made by the appellant to detectives in the hours after the fire and upon circumstantial evidence. The circumstantial case included allegations that the restaurant was not trading profitably, the telephone had been cut off, the electricity was to be turned off, the Licensing Commission had suspended the appellant's liquor licence and notices of eviction and re-entry had been served by the landlord and a mortgagee.

A cover note for the contents of the restaurant had been arranged shortly before the date of the fire. There were no signs of forced entry to the premises and money which should have been in a locked container was found to be missing, although there was no sign that the container had been forced.

Two police officers gave evidence that the appellant was told that they thought he might have been responsible for the fire. They said that after an initial denial, the following conversation occurred:-

"What happens if I do know something? I said, 'Did you light the fire?' He replied, 'No, somebody else did.' I replied, 'Who? and he stated, 'Steve. I don't know his last name.' I said, 'How do you know that?' He said 'He came in after I got the eviction notice and he got the spare key.' I said, 'what did he do?' The accused said, 'He said he would torch the place. I was upset, I didn't know what to do.'"

He then gave a description of the man named Steve. Enquires failed to establish the existence of the man described by him. The making of the statement quoted was disputed but little turns on it because immediately afterwards, a taped record of interview was taken in which substantially the same information was given to the police. Further, a former girlfriend of the appellant gave evidence that he had told her a similar version of events. When she was asked whether, when he said those things, he was telling her what had actually happened or was simply telling her that he had told the police that version, she replied "the feeling that he gave me it was both". The appellant's explanation for the statements made to the police was that he had been denied access to a solicitor, that he felt under pressure and thought that if he told them something they might let him go.

The trial ran for 11 days. The appellant was represented by Counsel at the trial but appeared in person before this Court. There were a large number of disputed issues of fact at the trial which the jury had to resolve to reach its verdict. The appellant analysed a number of these issues during his submissions on appeal. Where there is evidence both ways on an issue, it is not the function of this Court to retry those issues and to substitute another conclusion for that which the jury must be taken to have reached in the course of returning its verdict. We have had regard to what the appellant has submitted but there is no basis upon which the conviction can be set aside in those submissions. Having regard to the evidence of the police officers and the circumstantial evidence, the jury was entitled to convict. The conviction was plainly not unsafe and unsatisfactory.

A number of the grounds of appeal relied on by the appellant are concerned with aspects of the Crown Prosecutor's address. The complaint is that the address was beyond proper bounds and had a tendency to prejudice the jury against the appellant and thereby cause a miscarriage of justice. The Crown Prosecutor addressed the jury after defence counsel on the second last day of the trial. The learned trial judge then commenced his summing up. When the trial resumed the following morning, defence counsel applied to have the jury discharged on the ground that the Crown Prosecutor had failed in his duty to present the case fairly and in accordance with the evidence.

A number of specific complaints were made about alleged mis-statements of evidence and on the basis that intemperate language calculated to prejudice the jury against the prisoner had been used. In reply, the Crown Prosecutor conceded that his address had been vigorous but submitted that it was within proper bounds. The addresses of counsel were transcribed and the transcript confirms that the address is correctly described as vigorous.

The theme of the Crown Prosecutor's address was that the defence case lacked credibility and that the appellant was uncreditworthy. Particular exception was to the description on several occasions of the appellant as a "conman", and to a submission that if the appellant's version of events were true, "everybody else in the world is a huge shonk and a liar and he alone is not."

The learned trial Judge at the end of submissions on the application to discharge the jury said that, in his view, on any objective basis the Crown Prosecutor's address was not such as to wrongly inflame a jury or to cause them to be prejudiced against the appellant "in any wrong way". He pointed out that the jury was entitled to take a view of the appellant according to the evidence but to form an adverse view in those circumstances was not to be prejudiced against him. He concluded by saying he was "a long way from being satisfied" that the Crown Prosecutor's address was such that it required his intervention. Further, he subsequently gave the jury a direction referring to the use of the words "shonk" and "conman" and to the effect that they should not be persuaded of anything simply because the Crown Prosecutor had descended to that sort of language in his address. He told them to determine the matter on the evidence and not simply because the accused had been labelled with those names.

It is difficult to recapture the atmosphere of a lengthy trial by reading the transcript of it. The view of the learned trial Judge who is very experienced in the criminal jurisdiction, must be given due weight and it is plain that he was in no doubt that, in the atmosphere of the trial, the address did not exceed proper bounds. He took appropriate steps in his summing up to ensure that the jury was not distracted by the words used.

An intemperate and improper address by a Crown Prosecutor can result in a miscarriage of justice and lead to the setting aside of a conviction. It is also important that Crown Prosecutors address in such a way that the jury is not distracted from the true issues.

However, the features of the address complained of in this case fall considerably short of the kind of conduct condemned in R. v. Hay & Lindsay (1968) Qd.R 459 or in R. v. M (1991) 2 Qd.R 68. The words used were not as colourful as those used by the Crown Prosecutor in R. v. Pernich & Maxwell (1991) 54 A Crim. R 464. Although colloquial expressions were used they were more acceptable than those referred to in R. v. Parker (unreported, C.A. No. 311 of 1993).

Where other words can be used to express a submission which may be properly made, it is better if potentially inflammatory colloquial words are avoided. However, the issue in a case where complaint is made about the content or tenor of the Crown Prosecutor's address is whether there has been a real risk that the remarks wrongly influenced the verdict thus resulting in an

unfair trial. We are satisfied that that is not the case in this matter.

The appellant informed us that he wished to call fresh evidence. Fresh evidence must be both fresh and cogent before it can lead to an order for a new trial. The first body of fresh evidence was to be from Ms Swanson, a solicitor, whose evidence would serve the purpose of supporting his own evidence that legal advice had been sought. There is no reason to suggest that she was unavailable to give evidence at the trial. Indeed, the appellant informed us that the possibility of Ms Swanson being called was discussed before the evidence closed but she was not called. The only reason given for not calling her at the trial but wishing to do so now was that it was only during the Crown Prosecutors address that the question of obtaining legal advice was commented upon. However, the issue of a request for legal assistance was raised during the evidence. There is no reason to suppose that the evidence is fresh evidence or that it was of such a nature that may have led the jury to acquit rather than convict.

He also wished to call evidence from a man named Myers who could not be located at the trial and who even by the time of the appeal had not given a statement, sworn or unsworn. As far as we can determine, the purpose of calling him would have been to establish that there was a possibility that finance might have been available to alleviate the financial difficulties of the business. As the material before us stood, there was no basis for determining that any cogent evidence could be called from him in that respect. Evidence was also foreshadowed from two other persons who were in the vicinity of the damaged premises some four or five hours after the fire and who would give evidence that they saw people inside. This was concerned with an allegation that it was possible that certain of the exhibits had been tampered with and it appears that the purpose of the evidence would have been to rebut evidence from police officers the premises were secured until the scientific officers arrived from Brisbane. Having regard to the vagueness of the evidence, we are not satisfied that, assuming the evidence was fresh, it has the necessary cogency.

The appellant also referred to evidence which he said established that Simon O'Hara had given inconsistent accounts of his activities at the time of the fire. The point sought to be made is that at the trial, Mr O'Hara said he phoned the police, then Mr McKay at the security firm responsible for the premises. The new evidence is to the effect that about a week later, Mr O'Hara told someone that he had phoned the appellant soon after the fire and saw him at the scene soon afterwards. The evidence at trial was that it was Mr McKay who phoned him upon being told of the fire by Mr O'Hara and the appellant then went to the scene. The issue is very peripheral and there is no reason to believe that if the new evidence had been given, it would have affected the outcome of the trial.

None of the grounds of appeal against conviction are made out. The appeal against conviction is dismissed.

There is an application for extension of time in which to appeal against sentence. The applicant was sentenced to three years imprisonment with no recommendation as to parole. The learned trial Judge took the view that there were no factors requiring him to set a non-parole period less than the statutory period. When the notice of appeal against conviction was filed, there was no appeal against sentence. The only explanation for this course was that after being sentenced, the applicant completed the appeal forms provided to him by his solicitor. He states he did not consider appealing against his sentence until shortly before 11 April 1994, when the notice of application for extension of time was completed.

Apart from the unsatisfactory nature of this explanation of the delay, the prospects of success on an appeal against sentence are very slight. A sentence of three years imprisonment for an offence of this nature is clearly within range. It was open to the learned trial Judge to decide there was no reason to shorten the non-parole period. No basis has been demonstrated for granting an extension of time within which to appeal. The application is refused.

The appeal against conviction is dismissed. The application for an extension of time within which to appeal against sentence is refused.