R v Dohnt No. DCCRM-96-1275 Judgment No. D3636

[1997] SADC 3636

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For The Verdict of His Honour Judge Noblet

Hearing

10/06/97 to 16/06/97.

Catchwords

Trial by judge alone - arson - circumstantial evidence.

Representation

R:
Counsel: MR S McDONALD - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused BRIAN JONATHON DOHNT:
Counsel: MR R KANE - Solicitors: MR J JONES, FLETCHER &; JONES

DCCRM-96-1275

Judgment No. D3636

20 June 1997

(Criminal)

R v DOHNT

Criminal - Trial by Judge Alone

Judge Noblet

The accused is charged with two offences.The first is building-breaking and larceny.Particulars of that offence are that between 16 September 1994 and 17 October 1994 at Back Valley near Victor Harbor, he broke and entered the building of Dean Wilfred Hosking and stole therein a cabinet and crockery, together of the value of about $200, the property of Dean Wilfred Hosking.

The second offence is arson.Particulars of that offence are that on 16 October 1994 at Back Valley near Victor Harbor, knowing that he had no lawful authority to do so, he intentionally or with reckless indifference damaged by fire a building on the property of Dean Wilfred Hosking, the said damage amounting to about $41,000.

In fact the evidence was that the property damaged by fire was owned by a company of which Mr Hosking and his wife were directors.However, no point was made about this at the trial.

The accused pleaded guilty to the first count and not guilty to the second count.On the second count he elected to be tried by Judge alone.I am satisfied that this election was validly made.

I remind myself that the prosecution must prove, beyond reasonable doubt, the first three of the following four elements of the offence of arson. First, the property of someone other than the accused was damaged by fire.Secondly, the accused caused that damage.Thirdly, the accused either intended to cause damage by fire or, alternatively, was recklessly indifferent as to whether the property was damaged or not.Fourthly, the accused knew that he had no lawful authority to do what he did.It is for the accused to prove, on the balance of probabilities, any lawful authority on which he relies.The accused made no claim to have any lawful authority and this issue therefore does not arise. Nor did the accused rely upon the defence set out in section 85(4) of the Criminal Law Consolidation Act.

The prosecution case depends upon circumstantial evidence and admissions alleged to have been made by the accused.As far as circumstantial evidence is concerned, I remind myself that I may draw inferences from facts that I find to have been proved.The probative force of a mass of evidence may be cumulative, so that it is not necessary to consider the degree of probability of each item of evidence separately.I may draw inferences from facts established as a result of the drawing of other inferences, or from the combined effect of other inferences or the facts upon which they are based.Of course, to return a verdict of guilty, the final inference that I must draw from the whole body of evidence is that each element of the offence has been established beyond reasonable doubt.If any other rational inference consistent with innocence is reasonably open on the evidence, the accused must have the benefit of the doubt which must thereby arise.

The accused gave evidence in this trial.I must therefore consider all the items of circumstantial evidence and all the accused's explanations about them and then decide whether the prosecution has established beyond reasonable doubt circumstantial evidence from which the only inference I can reasonably draw is that he is guilty of the offence with which he is charged.

The prosecution also relies upon a number of lies alleged to have been told by the accused.The accused admitted in evidence that some of the things he said to three police officers were not true.I must guard against the tendency to think that if the accused is lying, it must be because he is guilty.There can be many reasons for lying.If I find that the accused did tell lies, then I may take them into account in assessing his credibility.Furthermore, if I find that the accused made statements that were not true, knowing them to be not true, and that those statements related to a material issue or issues relevant to the charge against the accused, and that the only logical explanation for the accused telling a lie was because he knew he was guilty of the crime with which he is now charged and was afraid of the truth because the truth was not consistent with his innocence, then I may use the evidence of lies as tending to point to his guilt.

Three of the persons who gave evidence for the prosecution, Brett Waller, Geoffrey Florence and Philomena Rice, were accomplices in the building-breaking and larceny charge to which the accused has pleaded guilty.They have already been dealt with by the courts for their part in the commission of this offence. However, I remind myself that the evidence of accomplices can be unreliable. Accomplices often have interests of their own to serve.They may wish to implicate others out of malice or they may seek to shift the blame, or part of the blame, onto others.I therefore remind myself that it is dangerous to convict on the evidence of an accomplice unless that evidence is corroborated. Unless I find corroboration, I must subject the evidence of the accomplices to close and careful scrutiny before taking it into account as evidence that may tend to establish the guilt of the accused.

I turn now to the elements of the offence and the evidence called in relation to those elements.

The first question I ask myself is whether the property of someone, other than the accused, was damaged by fire.There is no doubt that the log cabin belonging to Mr and Mrs Hosking (or their company) was completely destroyed by fire on 16 October 1994.The prosecution evidence on this was not challenged by the accused.Indeed, it is an agreed fact that "the damage to the cabin located on the Hosking property on Mount Robinson Road, Black Valley amounted to the value of about $41,000".

The second question I ask myself is whether it has been proved that the accused caused that damage.This is the central issue in this case.There are three possibilities as to the cause of the fire.The first is that it started by some accidental means not involving human intervention.The second is that it was caused by someone other than the accused.The third is that it was caused by the accused.

The prosecution called Senior Constable Parker, an experienced fire investigation officer.By the time he attended at the scene of the fire, the log cabin had completely burned down.The walls, other timber work, and almost the entire floor, had been consumed by the fire.The furniture in the house had been completely destroyed.All that was left were charred and twisted pieces of metal comprising the remains of things like a refrigerator, a stove, a sink and bedsprings.The collapsed iron roof had been dragged away from the remains of the cabin to enable the fire fighters to douse the burning embers underneath it.No doubt the dragging of the remains of the roof caused other remnants of the cabin and its contents to be moved about as well.Senior Constable Parker was unable to ascertain where the fire might have started. Tests that are sometimes used to determine the seat and cause of a fire were not possible or appropriate in this case because of the ferocity of the fire and the extent of the damage.

The accused called Mr Henry Kutek, who runs an investigation business which includes fire investigations.He was critical of some of the methodology used by Senior Constable Parker.However, it seemed to me that much of what he said comprised a counsel of perfection.Some of his evidence was also theoretical and bore little or no practical relationship to the facts of this case.

The prosecution asked Mr Kutek to accept that there was no electricity connected to the house;that there were no appliances in the house operated by batteries;that there was no lightning on the day in question;that the gas was turned off at the gas cylinders;that people who had been in the house a day or so before had not smelt any gas;that the gas fridge had been turned off;that the house had not been lived in for about four weeks;that the gas lights were about six feet from the ground;and that there was no evidence of anyone throwing cigarette butts around inside the house.He was asked how a fire could be caused in those circumstances.He agreed that "it starts to get difficult to see any accidental causes".He said that he would not be able to draw any conclusion.He was asked whether he would ever say that the cause of a fire was more consistent with it being deliberately lit than with it being an accident.

He said that he would never say that.Finally, the prosecutor asked if, with all those factors assumed, he could think of any accidental cause of the fire. He said that he could not.

Both Mr and Mrs Hosking gave evidence.They impressed me as meticulously careful people, particularly where safety precautions are concerned.Mr Hosking said that the log cabin was built in 1985 on a 200 acre block.Their insurance policy included a provision under which the insurance could be cancelled if they were away from the property for a period greater than 60 days at any time without notifying the insurance company.They had last stayed overnight in the cabin about seven weeks before the fire.The last time they visited the property before the fire was on 17 September 1994.The purpose of the visit was to check that everything was in order, because they were about to travel interstate for a couple of weeks.The cabin had been broken into twice in the nine years since it had been built.

Mr Hosking said in evidence that he and his wife had a standard procedure that they observed on every occasion when they left the cabin.This included locking all doors and windows and turning off the gas.He also said that the gas refrigerator was usually turned on only if they were going to be staying at the cabin overnight.If it was turned on, it was turned off when they left. He was sure that the cabin was secured and the gas was turned off when they left it on 17 September 1994.They had never had any problems with the gas appliances in the cabin, except that the gas refrigerator was sometimes difficult to light.In all the nine years that they had been coming to the cabin, they had never found that they had left the gas turned on on the previous occasion.Mrs Hosking confirmed her husband's evidence in all material respects.

I am left with no doubt that Mr and Mrs Hosking turned off the gas and secured the cabin when they left it on Saturday, 17 September 1994.Having visited the cabin for the express purpose of checking that all was in order, it is most unlikely that they would have departed from their standard practice when they left.Of course, it was possible for anyone to turn on the gas from the outside without entering the cabin.However, if the appliances within the cabin were all turned off, a fire could start from the gas source only if there was a leak or fault in the gas piping or connections and if there was also some form of ignition.Furthermore, none of the accused or his fellow offenders who broke into the cabin (on the day before the fire, according to the accused) gave evidence of any smell of gas in the cabin.

I turn now to other evidence relied upon by the prosecution.

First, the accused clearly had a motive for starting the fire.He had entered the cabin on at least two occasions and stole property from within it. Philomena Rice, with whom he lived at the time, gave evidence that the accused was concerned about leaving fingerprints behind in the cabin.He was really worried about getting caught and he talked about going back to try and wipe off any fingerprints.

Secondly, the prosecution relies upon lies told by the accused to Constable Thomas, Constable Napper and Detective Williams regarding his movements on the day of the fire.The prosecution relies upon these both as being relevant to his credit and as comprising evidence of consciousness of guilt.The accused told Constable Napper that he had not touched anything inside the shed.The accused then gave a more detailed statement to Constable Thomas (as she then was;she had changed to her married name of Dridan by the time she gave evidence).In that statement the accused said that he first saw smoke, and suspected the possibility of a fire, when he was out driving his father's car. He drove home to get a pair of binoculars and then returned to the spot from which he first saw the smoke.He saw flames and smoke billowing from inside the cabin.He watched the fire for about three minutes and could see that the cabin was well alight.He heard a loud bang like an explosion.He decided to return home and get help.He then went to the scene of the fire and helped the fire fighters.He then walked up from the cabin and saw a large dark green shed with graffiti painted on the front of it.The side door of the shed was open.He did not go inside or touch anything inside the shed.He returned home and arranged for someone to milk the cows on his father's dairy farm.He then returned to the scene of the fire and showed the police what he had found at the shed earlier that day.At this stage the accused was giving a statement as a witness helping the police with their enquiries.There is no suggestion that he was, at that time, under suspicion.The statement was given at the scene of the fire on the day of the fire.

Five days later, on 21 October 1994, the accused had a conversation with Detective Williams at the Victor Harbor Police Station.He gave a similar account of his movements except that he said he first saw the smoke from his home, not when he was driving his father's car.He mentioned that the shed on the property had been broken into but he said nothing about going into the shed.On this occasion Detective Williams noticed some spots or splatters of green coloured paint on the accused's boots.Detective Williams took possession of the boots.

Later on the same day, the accused attended again at the Victor Harbor Police Station together with his father.The accused said something to Detective Williams about having touched a paint brush that had been found on the Hosking property and that was suspected of having been used to paint graffiti on the shed doors.Detective Williams interviewed the accused again and the conversation was recorded with a tape recorder.On this occasion the accused said that he saw a paint brush inside the shed about three metres to the left of the doorway.He said "I picked it up, I felt it with my fingers and it was still quite wet so I then just flung it back down on the ground ... it was inside the shed."Detective Williams put to the accused that he had told Constable Dridan that he did not go inside the shed and did not touch anything. The accused said "I am not sure if I remember saying it or not".Detective Williams then asked the accused if he could account for why his story had changed and that he was now saying that he did go inside the shed and touch the paint brush.The accused said "I can't say why, why I said that at the time. No I can't."

In the evidence he gave in court, the accused gave yet another version of the facts regarding the paint brush.He said that on the day of the fire, just before he returned home to arrange for the milking of the cows, he saw the paint brush on the ground just outside the doorway of the shed.He picked it up by the very tip to ascertain whether it was still wet or dry.He said "It was tacky, not wet, but not dry, but tacky".He said he dropped it back on the ground where it had come from - about two metres outside the access door to the shed.The relevance of the version given by the accused in court extends beyond the possibility of a lie told by the accused;it is also an item of circumstantial evidence for another reason.I know from my own experience of life that a paint brush that is "not wet, but tacky" is not likely to cause a spattering of paint spots on a shoe when dropped on the ground.

The evidence of Mr Pigou, a forensic scientist, establishes that the paint spots on the accused's boots and the paint in an open tin found immediately under the graffiti painted on the shed were the same type of paint with the same pigment mix.

Another item of circumstantial evidence relates to a jerry can of unleaded petrol that Mr Hosking said was in the shed on the last time he was there, but was missing after the fire.Counsel for the accused put to one of the prosecution witnesses, Brett Waller (one of the people who broke into the log cabin a day or more before the fire) that he took a jerry can of petrol away from the Hosking property and hid it on a motor cycle track near the accused's home.He gave various answers to this, including "I can't remember", "No, I don't think I did", and "I might have".The accused said in his evidence that Brett Waller took the jerry can with him when they left the Hosking property, but said nothing about it being hidden on a track.He said the can was between Brett Waller and Geoffrey Florence, who was a pillion passenger on the motor cycle ridden by Brett Waller.Geoffrey Florence denied in his evidence that a large jerry can of petrol had been taken from the property.

Another feature of the accused's behaviour may be regarded as circumstantial evidence tending to point to his guilt.The accused told Constable Thomas that he watched the fire burning for about three minutes after he had returned home to get some binoculars and then gone back to the vantage point from which he first saw the smoke.It was only when "the flames clearly had taken over totally" that he decided to get help.That seems to me to be more consistent with someone who wanted the cabin to burn down to avoid his fingerprints being found inside it than with someone who was, to use his words "concerned about fires in this area". It does not, of course, establish that it was the accused who lit the fire, but it is another matter to be taken into account.

The accused said he heard an explosion from the cabin after it was well and truly alight.Another resident of the area, Mr Willsmore, said he heard two explosions.It seems unlikely on the evidence that any explosion of a pressurised can of hair spray, or something similar, would have caused an explosion loud enough to be heard as far away as where the accused and Mr Willsmore were at the time.It is possible, however, that an explosion could have been caused by petrol or some similar accelerant used to fuel the fire. This would, of course, tend to support the inference that the fire was deliberately lit.Mr Kutek said in his evidence in relation to accelerants that "if there were doors in two or more rooms and the fire was ignited in one of those rooms, then as the fire penetrated through the door or through the walls it would have ignited the vapours in the adjoining room and there could have been an explosion at that time".

Finally, I turn to the evidence of admissions relied upon by the prosecution. In about March 1996, the accused was sharing a house with Lisa Harding, Chris Elder and Jim Offley.They each gave evidence of the accused having told them that he had lit the fire on the Hosking property.In fact it was an anonymous letter sent to the police by Lisa Harding that prompted the police to re-open the investigation.

I place little reliance on the evidence of Lisa Harding regarding admissions by the accused.Some of her evidence was clearly tainted by gossip she had heard and by what she had been told by other people.Chris Elder was a more impressive witness.He said there were at least two occasions on which the accused admitted lighting the fire.He said that Lisa Harding was not present at either of them, but Jim Offley was present on the first occasion.Neither Chris Elder nor Jim Offley were able to recall in precise detail the actual words used by the accused when making the admissions they mentioned in evidence.However, they were both clear about the gist of what the accused had said.It is significant that the evidence of Chris Elder was that the accused not only said that he had lit the fire, but that he did so because of his fingerprints being there.This is consistent with, and provides some corroboration of, the evidence of Philomena Rice that the accused was worried about his fingerprints being found in the cabin.

Counsel for the accused did not suggest that Harding, Elder and Offley were lying.The suggestion seems to be that they took seriously something that the accused had said and which he did not intend to be taken seriously.The accused said that on one occasion when Harding, Elder and Offley were present, together with another person called Simon Butler, he (the accused) accidentally dropped his cigarette on the carpet.Someone then said something to the effect that he was trying to burn the house down.His evidence about what happened then was as follows:

"Q. What occurred after that was said?

A. I wasn't too happy about it, what this person said.

Q. Are you able to recall who said it?

A. It might have been Chris Elder, but I can't be dead sure on that.

Q. So you are saying you weren't too happy about it.What, if anything, happened?

A. I wasn't very happy about it and Chris Elder accused me of lighting the fire.I said words to the effect of 'Fuck you', you know, 'I lit the fire. Think what you want.'

Q. Why would you say such a thing?

A. The reason I would have said such a thing is because I was not very happy with the accusations that were put to me at the time.

...

Q. I will ask you again, why would you say such a thing?

A. Because I was mainly aggravated, angry, angry with what they were saying."

I found the accused's evidence as to what he said, and why he said it, to be completely unconvincing.

As a result of the combined effect of the circumstantial evidence relied upon by the prosecution, including the lies told by the accused about the paint brush and the timing of those lies, and having regard to the admissions relied upon by the prosecution, I am satisfied beyond reasonable doubt that the accused lit the fire which caused the damage to the Hosking property.It is significant that the accused's three different versions of his involvement with the paint brush changed to suit changing circumstances.In particular, he mentioned that he had touched the paint brush only after the splatters of paint spots on his boot were pointed out to him and the boots were seized for examination.Of course, it is possible that the accused lied about the paint brush not because of arson, but because he had been involved in painting the graffiti and breaking into the cabin and the shed.However, the cumulative effect of his lies and the other circumstantial evidence and the admissions alleged by his friends convinces me, beyond reasonable doubt, that the accused lit the fire.

There is no suggestion on the evidence of the accused having lit the fire accidentally, or being recklessly indifferent as to whether property was damaged.The prosecution has therefore proved beyond reasonable doubt that the accused intended to cause damage by the fire.

As I have said, the accused did not seek to establish any lawful authority for lighting the fire.

Accordingly, I find that the prosecution has established all four elements of the offence beyond reasonable doubt and I therefore find the accused guilty of the offence of arson.