R v Dohnt No. Sccrm-97-178 Judgment No. S6441

[1997] SASC 6441

R v DOHNT

Court of Criminal Appeal
Coram: Matheson, Duggan and Nyland JJ

Matheson J

The appellant pleaded guilty on an information in the District Court of South Australia to the first count thereon of building breaking and larceny, and pleaded not guilty to a second count of arson, particulars being that:

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

The building referred to in the second count was the same building as that referred to in the first count.  The appellant elected to be tried by judge alone and the learned judge found him guilty and convicted him.  He now appeals against his conviction of arson.  It is convenient to mention here that three other persons were convicted on another information or informations of the same building breaking and larceny, namely Bradley George Waller, Geoffrey Robert Florence and Philomena Rice.  They were all called as witnesses by the prosecution on the arson count.

The appellant was ably represented on the appeal by Ms Frances Nelson QC.  Notwithstanding the cogency and clarity of her submissions, the court intimated at the conclusion thereof that it did not need to hear from counsel for the respondent, from whom the court had received a most helpful Outline of Argument.  It was obvious from that intimation that the court was of the view at least at that stage that the appeal should be dismissed.  That is still my view, and I can state my reasons quite briefly.  I shall deal with Ms Nelson’s grounds of appeal in the order that she did:

Ground 1   The verdict was unsafe, unsatisfactory and against the weight of evidence.

The subject property was a log cabin on a small block of land on Mt Robinson Road, a mere track which runs off Range Road, and was located approximately mid-way between Victor Harbor and Yankalilla.  It was approximately 6 kms from a house on a dairy property that was share-farmed by the appellant’s father and in which he was then living with his pregnant girlfriend Philomena Rice.  The property damaged by fire was owned by a company of which Mr Hosking and his wife were directors. They used the log cabin as a retreat.  It was not connected with electricity.  Its  lamps, refrigerator and stove were gas operated. Gas therefor was supplied by two large gas cylinders on a special concrete platform on the northern side of the cottage.

The first CFS officer arrived at the scene about 2.45 pm on the date charged.  The cabin was burning fiercely.  Although three or four CFS appliances in all attended, the log cabin was completely destroyed by fire.  It was an agreed fact that the damage to the cabin amounted to the value of about $41,000.

In relation to the evidence of Mr and Mrs Hosking, his Honour said:

"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."

A fire investigation officer, Senior Constable Parker, arrived at the scene of the fire at 7.40 pm.  Significantly, he said that it was isolated, difficult to find and set back from the road.  His Honour summed up his evidence in this way:

"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 a business which includes fire investigations.  He criticised some of the methodology of Senior Constable Parker.  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, but he was not able to suggest any accidental cause of the fire.

If the evidence of Parker and Kutek stood alone, I am inclined to agree that the prosecution did not establish beyond reasonable doubt that the fire was deliberately lit, but it did not stand alone.  There was much other probative evidence.  In any event it would be quite wrong to consider whether the fire was deliberately lit in isolation.

The building had been broken into, and many items stolen therefrom, on the previous day, or at least very close to 16 October.  The appellant admitted his involvement in that building breaking and larceny.  It followed that he was aware that it was unoccupied, and that he knew how isolated it was.  The appellant at the time of the fire was nearby, and alone.  He was the first to advise the CFS, but only - on his own evidence - after some time.  He told several witnesses that he was worried about having left his fingerprints in the log cabin at the time of the breaking.  Thus he had a motive.  Moreover, he admitted lighting the fire to several witnesses, one of whom in particular made a favourable impression on his Honour, namely Chris Elder.  His Honour said he found the appellant’s explanation of the alleged admissions "completely unconvincing".

The prosecution also relied upon lies allegedly told by the appellant to the police.  I am content to adopt what his Honour said in that connection, namely:

"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 ...

... 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."

In my opinion, the case against the appellant was a strong one, and I would reject the first ground of appeal.

Ground 2   That the learned Trial Judge in reaching his verdict gave undue weight to the prosecution argument as to the motive of the appellant.

Ms Nelson argued that the learned trial judge failed to have regard to the fact that the other persons who, like him, were convicted of building breaking and larceny, also had "at least an equal motive".  It is true that those people did have a similar motive, but there was no suggestion in the evidence that there was anything incriminating in their subsequent statements and behaviour to link them with the crime of arson.  Moreover, counsel then appearing for the appellant, did not put to those people in cross examination that they were involved in the arson.  I do not find it curious in all the circumstances that his Honour did not refer to the fact that they had a similar motive, or to the fact that in his evidence, given nearly two years after the fire, Florence could not remember where he had been on the afternoon in question.

Ground 3 The learned Trial Judge misdirected himself as to circumstantial evidence and the inferences to be drawn upon the facts. The learned Trial Judge failed to decide any evidence of any particular fact beyond reasonable doubt contrary to the principles laid down in R v Chamberlain No 2 (1984) 153 CLR 521.

What his Honour said in this connection was:
"  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."

I am not persuaded that what his Honour said was inaccurate, and I refer in particular to Shepherd v R (1991) 170 CLR 573 at pp579-580.

Ground 4   The learned Trial Judge reversed the onus of proof in relation to the alleged admissions made by the accused to the witnesses Harding, Elder and Offley.

Ms Nelson made this submission upon the basis of his Honour’s statement (in the context of the appellant’s explanation):

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

I am quite unpersuaded that his Honour in the statement just quoted or anywhere else in his judgment reversed the onus of proof.

Ground 5   The learned Trial Judge failed either to adequately direct himself on, or to adequately take into account, the defence case.

Ms Nelson relied in particular on the following:

"5.1.1                 Behaviour inconsistent with the alleged motive

5.1.2 No evidence beyond reasonable doubt that the fire was deliberately lit

5.1.3 The motive and opportunity on the part of others"

This argument ignores the fact that what counsel was attacking was not a summing up to a jury, but reasons for judgment.  Reading those reasons as a whole, his Honour reveals, in my opinion, that he was clearly aware of the defence.  He was clearly entitled to reject it.  Finally, I am not persuaded that it is of any significance that he did not actually mention the evidence of Mr Dohnt Senior.  I see no reason to think he ignored it.

I would dismiss the appeal.

Duggan J

I agree that the appeal should be dismissed for the reasons given by Matheson J.

Nyland J

For the reasons expressed by Matheson J, I agree that the appeal should be dismissed.