R v Finning

[1994] QCA 365

IN THE COURT OF APPEAL [1994] QCA 365

SUPREME COURT OF QUEENSLAND

C.A. No. 217 of 1994

Brisbane
[R. v. Finning]

BETWEEN:

T H E Q U E E N

v.

JONATHAN LEONARD FINNING	Appellant
Macrossan CJ Fitzgerald P. Pincus JA.

Judgment delivered 14/09/94
Reasons for judgment of the Chief Justice and the President, separate reasons of Pincus JA., dissenting.

APPEAL AGAINST CONVICTION ALLOWED. Conviction quashed. New trial ordered. Application for leave to appeal against sentence refused.

CATCHWORDS:CRIMINAL LAW - Evidence - Cross-examination - arson - appellant convicted of setting fire to a truck's load - witness called by co-accused cross-examined as to evidence of appellant's possible motive - application by appellant to cross-examine in relation to evidence regarding motive refused by trial judge - whether failure to cross- examine prevented a fair trial

Stokes v R (1960) 105 CLR 279

Counsel:Mr. S. Herbert Q.C. with him Mr. S. Lewis for the

appellant

Mr. D. Bullock for the respondent
Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:01/09/94

REASONS FOR JUDGMENT - MACROSSAN CJ and FITZGERALD P.
Judgment delivered 14/09/94

The appellant was convicted of arson in the District Court at Ipswich on 20 May 1994, and was sentenced to imprisonment for 3 years. He has appealed against his conviction, and applied for leave to appeal against sentence.

The fire to which the charge related occurred on 28 November 1992. A semitrailer loaded with chemicals and other goods, some of which were dangerous, was parked at night in the main street of Esk in a well-lit area. The load was secured and there were signs saying "Dangerous Goods". At about 12.50 a.m., the appellant and a co-accused, Chaille, who was also convicted and sentenced to a similar term of imprisonment, were observed to be untying ropes on the semi-trailer. A third person, Mahoney, may also have been involved in that activity for a time, but was not suggested to have had any additional involvement or to have still been involved at the time when the fire started. Further, there was no evidence of any prior arrangement between the appellant, Chaille and/or Mahoney to start a fire.
The prosecution case, which did not involve evidence from Mahoney, placed the appellant at the scene at the material time, and would have sustained a verdict of guilt if the jury had made such a finding based only on such evidence. But the position is complicated by the circumstance that Chaille called Mahoney as a witness at the trial.
Earlier, before the prosecutor had opened the case to the jury, he accepted an "intimation" from the trial judge that "it would be undesirable for this evidence of Mahoney to be led at all." The evidence was identified as "a two-page statement", which it seems clear was a statement taken from Mahoney by a police officer, Staley, on the day of after the fire. The reason for the trial judge's "intimation" appears to be that he considered Mahoney an unreliable witness.

After the prosecution closed its case, Mahoney was called by counsel for Chaille and cross-examined by counsel for the appellant. At the conclusion of that cross-examination, Mahoney accepted as "a possibility" that he could not "rule ... out ... from anything that he saw" that the appellant "was simply trying to look under the tarpaulin in the dark using his cigarette lighter and the tarpaulin accidentally became ignited". While the jury might well have rejected this as fanciful, there was nothing in Mahoney's evidence, at least, which was inconsistent with that possibility and no evidence from Mahoney which suggested that the appellant had a motive to start the fire.

At that point, no evidence had been led from Mahoney of a statement which he said had been made by the appellant as both he and Mahoney were running off after it was observed that the tarpaulin was on fire. That was the first matter raised by the prosecutor when he arose to cross-examine. After argument, the trial judge allowed the prosecutor to proceed, and Mahoney gave evidence that, as he and the appellant were running away from the semi-trailer, the appellant said: "That will teach them to bring this shit into town."

At the conclusion of the prosecutor's cross-examination, counsel for the appellant sought but was refused leave to cross- examine Mahoney in relation to the statement which he had said the appellant had made while running away from the semi-trailer.

There was a basis for such cross-examination.

In the statement which he gave to the police, on the day after the fire, Mahoney said: "I then ran onto another street and Finning said something to me, he said words to the effect 'bringing the shit'."
In his evidence in-chief at the committal hearing, Mahoney said: "I couldn't quite pick out most of the sentence, but the words 'to bring the frigging shit' and there was other words in between at the end but I just didn't pick up because we were running along". The next question and answer was:
"And, is it possible for you to say from the context of what you

did hear, what the reference to the shit was? -- No."
That led to an application to the magistrate to have

Mahoney declared a hostile witness on the basis that, before he made the statement which was recorded on the day after the fire, he had told the police officer "that Finning had said as they were running into town, 'That will teach them to bring that shit into town.'" The police prosecutor continued: "Clearly those words amount to evidence of motive, evidence of consciousness of guilt. This witness is now ... watering down that. He watered it down in the creation of his statement and he is continuing to do so."

The police officer who had taken Mahoney's statement gave

evidence before the magistrate as follows:
"... Can I direct you to a passage about half-way up the page

where the words to the effect 'bringing the shit' appear?

Do you see that there?-- Yes.

All right. Now, I'm talking to you generally about that subject.
You can put the statement down for present purposes. Prior
to typing that statement up, you had a conversation with

Mahoney about the subject of those words, and I'm talking

generally now?-- Yes.

All right, and in the course of discussion that with him, do you recall what Mahoney said had occurred at that point in this narration of the events?-- He said that as he - as Finning and he were running away, Finning said the words, 'That will teach them to bring that shit to town.'
All right. And did you ask him anything further after he said that?-- I asked him whether they were the exact words ----- -
Yes?-- ----- and he said that they were the exact words or

close to it.

After that, did you start compilation of the statement?-- Yes.

All right. When you came to that passage or rather that part of the narrative, what happened at that point when it came to put the part of the narrative into the statement?-- The - Mahoney said that he - the only words he could remember were, 'bringing the shit' and that there were other words but he couldn't remember what they were. I put the words - the previous words he used to him and he said, 'No, I can't remember' or he stated that he couldn't remember the rest of the words but only 'bringing in the shit.'"

The magistrate refused to declare Mahoney a hostile witness, but nonetheless allowed the police prosecutor to ask him a leading question concerning what the appellant had said: "... I referred you to the passage in your statement where you

refer to the words, 'Bringing the shit'. You recall having a discussion before the commencement of the taking of the statement about that part of the story with Detective Staley?-- I can't recall.

All right. Do you recall that that part of the story telling Detective Staley that you heard Finning use the words "That will teach them to bring that shit into town'? -- Now, the - yes."

When cross-examined in the committal hearing, Mahoney agreed that the statement which he attributed to the appellant by that answer was inconsistent with his written statement given to the police officer on the day of the fire, which he had acknowledged as true and correct and signed before a justice of the peace.

Over and above the changes in Mahoney's account of what the appellant had said when they were running from the semi-trailer, the trial judge had, earlier in the trial, given the prosecutor an "intimation" that he should not call Mahoney as a witness because of his perceived unreliability. It is unnecessary for present purposes to decide whether, consistently with his acceptance of that intimation, the prosecutor should not have asked Mahoney to give evidence of the appellant's statement, or whether counsel for the appellant at the trial might reasonably have believed that the prosecutor would not do so.
Irrespective of such considerations, the appeal should not be decided against the appellant on the basis that his Counsel may have restricted his earlier cross-examination of Mahoney for simple tactical reasons. He really had no choice. It would have been extremely difficult for the appellant's counsel to have opened up the topic without considerable disadvantage to his client.

It is a fundamental tenet of the criminal law that a person accused of an offence is entitled to a fair trial. What this involves may alter with the circumstances. But there are principles of general application. For example, a person accused is entitled to cross-examine witnesses who give evidence against him in order to test and challenge their testimony. One common illustration of this is that it is "the usual practice to allow some further cross-examination when at the end of a witness's evidence the judge elicits some further matter tending against the party's case or contention": Stokes v. R. (1960) 105 CLR 279, 283-284. In the circumstances of this matter, I am satisfied that a proper exercise of the trial judge's discretion would have resulted in a ruling that the appellant's counsel could further cross-examine Mahoney for the limited purpose for which the cross-examination was requested. The refusal of that opportunity was unfair to the appellant.

Although there was a strong case against the appellant, it was made stronger by evidence which, if accepted, attributed to him a motive for the fire and established that he started the fire deliberately. It cannot be said that " ... had there been no .. blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused ...". Wilde v. R. (1988) 164 CLR 365, 372. Accordingly, the conviction must be quashed: ibid. It does not seem to me satisfactory to permit the prosecution to rely upon evidence upon which it was not entitled to rely (because there was no opportunity for cross-examination) and then, following conviction on an unknown basis which may or may not have involved the jury's reliance on that evidence, to uphold the verdict on the basis that, in the opinion of a court which has not seen or heard the witnesses, the jury did not need to do so.

It is, however, appropriate that there should be a retrial.
The offence was extremely serious, required about 200 people to

be evacuated from Esk, and caused substantial damage. Further,

as I have said, the prosecution case is strong.

The appeal should be allowed and the conviction quashed but a new trial ordered. In the circumstances, there is no point in considering the application for leave to appeal against sentence, which is accordingly refused.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/09/94

I have read the joint reasons prepared by the Chief Justice and the President and agree that the primary judge should have allowed counsel for the appellant to re-cross-examine Mahoney, in order to ask Mahoney about the statement he had attributed to the appellant. His Honour's decision not to allow re-cross- examination was in my view an indefensible exercise of discretion, in the unusual circumstances of the case. That it was an error may not have been as clear to an observer at the trial as it presently is; the Court has the advantage of having had placed before it the prior history of Mahoney's versions of the relevant statement.

However, a question arises as to whether there was a substantial miscarriage of justice, as a result of the judge's ruling.

The charge against the appellant was that he wilfully and unlawfully set fire to a motor vehicle; it was a semi-trailer which was set on fire. On 18 January 1994 the appellant appeared by counsel before Judge Howell, and according to the recollection of that counsel as set out in the record, the appellant then pleaded guilty to the charge of which he has now been convicted, on the -

"...general basis that he deliberately ignited a cigarette lighter aware that burning of the tarpaulin that covered the truck was a likely consequence, and that he recklessly ignited the cigarette lighter regardless of the risk and therefore it was felt that that was within the extended basis, if you like, of 'wilfully' in the relevant chapter of the Criminal Code".

Judge Howell declined to accept the plea. The reference to the extended sense of "wilfully" appears to have been based on the decision in Lockwood (1981) Qd.R. 209; that authority supports the view that the appellant could properly be convicted if what he did was willed and if the ignition of the trailer was known to be a likely result of his doing it. On 16 May 1994 counsel in effect renewed the offer to plead guilty, before the judge who conducted the trial, Judge Boyce QC. His Honour indicated reluctance to accept a plea "on the basis that this was some sort of accidental occurrence". Counsel replied:

"I am not necessarily saying that you would accept a plea on that basis, your Honour. All I am saying is that you would accept a plea. If there is a contest between the defence and the Crown as to what his intention really was, whether it was deliberately lit or not, then that could be agitated on a contested sentence".

In the result the trial proceeded; but it seems clear from what was said about a plea that counsel's instructions were that although the appellant did not deliberately ignite the goods in question, he deliberately ignited a cigarette lighter and was prepared to accept that this ignited the goods on the vehicle, and the vehicle itself. These statements made by counsel to the judge in the present case, in open court, may be taken into account in determining whether there has been a substantial miscarriage of justice. In De-Cressac (1985) 1 NSWLR 381 at 390, 397, the Court of Criminal Appeal had to consider whether regard could be had to admissions of guilt contained in a pre- sentence report, prepared after the appellant had been convicted by a jury, in determining whether a substantial miscarriage of justice had occurred. The Court was unanimously of the view that there was a miscarriage; Hodgson J. expressed the view that the Court could have regard to the admissions for the purpose of deciding whether there was a miscarriage but the other members of the Court did not explicitly determine whether the admissions were relevant to that question; see at 390E, 391A and 397D. The New South Wales case was one in which the admissions of guilt followed upon the conviction; here they did not. In Hazeltine [1967] 2 Q.B. 857 at 862-3, where the accused was charged with wounding with intent to do grievous bodily harm and pleaded guilty to a lesser charge of unlawful wounding, which plea was not accepted by the prosecution, it was held that it was open to the prosecution to call evidence of the fact that the accused had pleaded guilty to unlawful wounding and to point out that he thereby admitted that what he did was unlawful and malicious. See also Rimmer (1972) 56 Cr.App.R. 196 at 200-201.

I also refer to Hall [1924] S.A.S.R. 251 and to Bamford [1972] 2 NSWLR 261, where similar questions were resolved on the basis of specific statutory provisions.

But even if one ignores counsel's statements to the judge, it appears from the conduct of the trial that there was no serious resistance to acceptance of the proposition that actions to which the appellant was a party caused the fire; that point is illustrated below. There was no evidence elicited to support the suggestion made in the passage I have quoted from counsel's discussion of a plea of guilty, namely that the appellant "recklessly ignited the cigarette lighter regardless of the risk". The question of intention was, however, put in issue by suggestions that the appellant was drunk - to which some witnesses responded in a fashion favourable to the defence. It does not appear that it was put in issue in any other way.

To return to the subject of the way in which the Crown's allegations were met, it is convenient to start with the main witness, G J McLachlan, the manager of the local post office. On the night in question he saw the appellant and his co-accused Chaille at the trailer. He knew them both. According to McLachlan he saw Finning loosen the ropes towards the rear of the trailer; McLachlan, when he saw this, went to ring the police. When he came back to look at the trailer again, he noticed among other things that Chaille and the appellant were still at the rear end of the trailer and that when vehicles came down the street they hid. At one stage he saw the appellant jump down from the trailer, at the back. McLachlan then phoned the police successfully and when he came back from that call he saw the two still trying to get some ropes undone. A little later he saw the vehicle on fire.

McLachlan was cross-examined by counsel for the appellant, who put to him that he could not rule out the proposition that the appellant was quite drunk; McLachlan said he could not ascertain that. He also cross-examined on the basis (as I understand it) that possibly a third person at the scene might have been implicated. There was, however, no suggestion that anything to which McLachlan swore in chief was erroneous.

Another aspect of the Crown case was that there was evidence that the appellant had a conversation with people in a car which was parked close to the truck before the fire. One of them, J S Landsdown, said that the appellant got into the car and said "Let's get out of here. Get going". When Landsdown told him to get out of the car and said that he (Landsdown) did not want anything to do with it, the appellant threatened that if Landsdown told "anyone about this, I'll kill you". He also threatened to kill another occupant of the car. The appellant got out of the car, which was driven off, and a short time later Landsdown saw the semi-trailer on fire. When cross-examined, Landsdown admitted that the appellant "could have been" quite drunk; it was not suggested that anything Landsdown swore to was inaccurately stated.

Two other points emerging from the Crown case should be mentioned. One is that a detective sergeant K W Bemi, who investigated the fire, was told by the appellant that he did not light the fire. The appellant told Bemi "All I did was have a look inside the trailer when I went past". When asked whether he untied any ropes he said he did not; none of this evidence of Bemi was challenged or contradicted. It appears to be evident that these statements of the appellant were false. Then there was evidence that the trailer not only contained dangerous goods, as was plain from the results of their ignition, but was clearly marked as containing dangerous goods.

In these circumstances one may reasonably ask how much effect the statement attributed to the appellant by Mahoney could, if accepted, have had upon the jury's deliberations. That statement was: "That will teach them to bring this shit into town". The jury had before them evidence, neither contested nor contradicted, that the appellant was at the trailer untying ropes just before the fire; that when vehicles passed by during this activity the appellant and his co-accused hid; that shortly before the fire became evident the appellant expressed a desire to be driven away from the scene, and made a threat about the consequences of people telling on him; that he told the police untruthfully, in effect, that he had nothing to do with the matter. Whether or not one takes into account, as in my opinion one may, the attempted plea of guilty which necessarily implied that the appellant lit the fire, it would, in my opinion, not be right to hold that the loss of opportunity to question Mahoney about the statement attributed to the appellant cost the appellant a fair chance of acquittal. I cannot see that the jury could reasonably have reached any conclusion other than that the appellant and his co-accused went to the trailer and undid the ropes with the intention of setting the load alight and carried out that intention. The only real point about intention raised by counsel for the appellant by his questioning of witnesses was the issue of the appellant's sobriety; the statement attributed to the appellant by Mahoney had little relevance to that issue, as it could just as well have been made by one affected by liquor as by a person not so affected. The Mahoney statement would have damaged the appellant's case if there had been any evidence to suggest that, if the appellant was a party to the ignition of the semi- trailer, that was accidental - but there was no such evidence and an acquittal on that basis would I think have been perverse.

The only other observation which seems called for is that there was nothing put before the primary judge to suggest that counsel for the appellant wished positively to dispute, in cross-examination, the making of the statement sworn to by Mahoney. In my opinion there was no miscarriage of justice, substantial or otherwise.

I would dismiss the appeal.