R v Goodrick - [2007] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GOODRICK
Criminal Trial by Judge Alone
[2007] SADC 127
Reasons for the Verdict of His Honour Judge Nicholson
29 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
One count of arson contrary to s85(1) of the Criminal Law Consolidation Act 1935 - trial by judge alone - accused charged with deliberately setting fire to her de facto partner's residence - prosecution case wholly circumstantial - verdict, not guilty.

R v GOODRICK
[2007] SADC 127
Introduction

The accused was charged on Information dated 2 April 2007 with one count of arson contrary to s85(1) of the Criminal Law Consolidation Act 1935. I heard the trial sitting as judge alone in Port Augusta. At the conclusion of the addresses by counsel I entered a verdict of not guilty. I had come to a firm decision in this respect and in these circumstances I wanted the accused to be able to return to her home in Ceduna as soon as she wished to and was able to. I advised counsel that I would deliver my reasons in support of the verdict during the following week and as soon as practicable given my other circuit commitments. These are those reasons.
The accused pleaded not guilty. She made a late election pursuant to s7 of the Juries Act 1927 to be tried by judge alone. The trial was listed to start on Wednesday 21 November 2007. On that morning the accused, through her counsel, made an oral application for the rules ordinarily applicable to the timing of any such election to be dispensed with in reliance on Rule 16 of the Juries Rules. The Director of Public Prosecutions neither supported nor opposed the application. Upon hearing further from counsel for the accused I was satisfied that there was a proper basis pursuant to Rule 16 to waive compliance with the prescribed time limits. I do not set out the reasons for that finding here, they are evident from the transcript of the submissions put to me at the time of hearing the application. Counsel for the accused filed in court a Rule 10 certificate and I was satisfied that the accused had been properly advised of her rights prior to making this election. Accordingly, I granted the application that the trial proceed by judge alone.
Legal considerations and general directions
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for a court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless remind myself of the following.
(i)An accused person is presumed to be innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof and to the extent that they might put forward a defence they do not have to prove it.
(iii) By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of the offence, then I must give the accused the benefit of that doubt and find her not guilty.
(iv)In this trial the prosecution case was wholly circumstantial. In such a case, before returning a verdict of guilty, the trier of fact must be satisfied that the circumstances exclude any reasonable explanation consistent with innocence. In other words, I must be satisfied not only that the accused’s guilt is a rational inference but also that it is the only rational inference available in the circumstances before I could reach a verdict of guilty.
In coming to my decision in this matter, I reminded myself of the standard direction given to juries in this State where a case is based wholly on circumstantial evidence and, in particular, as to the proper approach to be adopted when considering whether or not an ultimate inference of guilt is to be drawn beyond reasonable doubt.
Arson is committed when a person, intending to damage the property of another or being recklessly indifferent as to whether property of another is damaged, without lawful authority and knowing that no such lawful authority exists, damages that property of another by fire.
To establish the charge of arson the prosecution must prove beyond reasonable doubt each of the following elements:
(a)that the accused, by a voluntary act, damaged the property of another by fire;
(b)that the accused did so either with the intention of doing so or alternatively, being recklessly indifferent as to whether that property was damaged or not;
(c)that the act of the accused was done without lawful authority;
(d)that the accused knew that no lawful authority existed at the time of the act in question.
In this case the Director of Public Prosecutions particularised the statement of offence brought against the accused in the following terms:
Kathleen Veronica Goodrick on 20 July 2006 at Ceduna, knowing that she had no lawful authority to do so, intentionally or with reckless indifference damaged by fire a house, property of the South Australia Housing Trust by fire [sic], the said damage amounting to more than $30,000.
The Director assumed the burden of proving damage in an amount of more than $30,000 because this, if established, would have an effect on the maximum penalty in the event of a conviction.
The prosecution case
The prosecution maintained, and it was not seriously in dispute, that a Housing Trust property at 12 Coote Place Ceduna, of which Mr John Goodrick was the tenant, was severely damaged by fire on 20 July 2006.
The prosecution alleged that it was the accused, Kathleen Goodrick, Mr Goodrick’s long term de facto partner, who deliberately started the fire and that she did so intending to damage Mr Goodrick’s property and the property of the Housing Trust.
Evidence relied upon by the prosecution
The Prosecution adduced oral evidence from Mr John Goodrick, Mrs Athleen Ronan, Mr David Small, Mr Jack Heinis, Mr William Kell and Mr Maurice Kelly all of whom, at the time of the fire, were residents of Ceduna. The Prosecution also adduced oral evidence from Brevet Sergeant Carolyn Walton, an experienced fire cause investigator with the South Australian Police, Constable Lynette Gibson and former Senior Constable Paul Liersch. I accept that all of the witnesses gave their evidence honestly and did their best to recall and accurately describe the things they saw and heard.
Mr John Goodrick’s evidence was to the following effect. He and Mrs Goodrick had been domestic partners since September 1981. Whilst they shared the same name, they had not married. They stopped living together about three weeks before the date of the fire, 20 July 2006. Mr Goodrick had asked Mrs Goodrick to leave because of, as he asserted, her excessive use of poker machines. On the day of the fire, Mrs Goodrick had come to visit at 12 Coote Place, sometime in the afternoon. She and Mr Goodrick were drinking alcohol. At about half past four or five o’clock that afternoon another friend of Mr Goodrick, Priscilla Peel, visited. All three of them drank alcohol in the kitchen.
The two women started abusing each other and calling each other names. Mrs Goodrick started to act in a very hostile manner towards Mr Goodrick. According to Mr Goodrick, the argument was over the assertion by Mrs Goodrick that Mr Goodrick had been going out with Ms Peel whilst Mr and Mrs Goodrick had been separated. According to Mr Goodrick, the only way to bring the argument to an end was for him to take Ms Peel home and so after about an hour or an hour and a half, he and Ms Peel left and he drove her the short way to her house. At the time they left Mrs Goodrick was significantly affected by alcohol. Mr Goodrick said that on a scale of one to ten, with one being sober and ten being falling over drunk, he would have put her at about eight.
During the argument Mrs Goodrick made some threats against Mr Goodrick. The following exchange occurred in examination-in-chief (T29):
Q… did Kathleen in the course of this argument make reference to the house.
AOnly that – which she said on many times – that she would set fire to the house, cut me with a knife, set fire to the house, but she had been doing that for fifteen years so I did not – grain of salt.
QWhen she said that, what was her mood like.
AVery, very hostile.
QWho was the hostility directed towards.
ATowards me mostly.
QDid you react when she said she was going to set fire to the house.
AI probably said “oh yeah”, just off hand.
When the topic was revisited in cross-examination, the following exchange occurred (T49):
QWhen Kathy drank a large amount of alcohol, did she sometimes say things that she would not normally say.
AYes.
QCould you describe that kind of talk as drunk talk.
AYes.
QYou said that you have heard her say things like you described lots of times before.
AYes.
QIs that usually when she is drinking a lot.
AYes.
QYou said that that has happened lots of times over about fifteen years; is that right.
AMake that 26 years.
QIs that why you don’t take her seriously.
AYes.
Mr Goodrick said that Mrs Goodrick had many of her belongings scattered throughout the house at the time of this argument. He also gave evidence about the state of her health. According to Mr Goodrick, Mrs Goodrick is a chronic diabetic and is partially blind. She also has chest problems. She was, at the time, on medication and took a number of different tablets daily. Mr Goodrick said that the tablets she was taking and her drinking of alcohol was not a good combination and that she was forgetful and had trouble with her short term memory.
According to Mr Goodrick both he and Mrs Goodrick were heavy smokers. Mrs Goodrick, at the time, smoked approximately 25 or 30 cigarettes a day. She smoked tailor made cigarettes; usually the brand of Escort Red. Both of them smoked throughout the house and lit their cigarettes either with a lighter or matches. Usually there were various lighters scattered around the house. They used ashtrays and there were a number of those throughout the house including on the kitchen table, on the lounge room table and on little bedside tables in their bedroom.
After spending about twenty minutes with Ms Peel at her house, Mr Goodrick received a message from an acquaintance, immediately returned home and saw that his house was on fire.
As I have said, in general I found Mr Goodrick to be an honest witness who did his best to describe carefully and accurately the matters he was asked about. However, there was one matter about which he gave conflicting evidence and as to which he acknowledged in cross-examination that his memory might not be entirely accurate. This was the matter concerning whether or not Mrs Goodrick had stayed the night with him immediately before the day of the fire because various members of her extended family were coming to stay in Ceduna in order to go to the funeral of a family member. Mr Maurice Kelly, a cousin of Mrs Goodrick, said that he had come up from Port Lincoln on the day of the fire for the purpose of going to a funeral and that other members of the family were in town for that purpose. I find then, that Mr Goodrick was initially mistaken in this respect and that in fact other members of Mrs Goodrick’s family had come to town on or around the day of the fire for the purpose of this funeral. Ultimately the matter is of no moment. Nevertheless, with this qualification, I accept Mr Goodrick’s evidence.
Mrs Athleen Ronan lived at no 8 Coote Place. She socialised with both Mr Goodrick and Mrs Goodrick from time to time at Mr David Small’s house that is, no 7 Coote Place.[1] Mrs Ronan returned home from a day out at about 3.30 or 4 o’clock in the afternoon. She changed her clothes and sat on the veranda reading The Advertiser newspaper. According to Mrs Ronan, she cannot see no 12 (Mr Goodrick’s house) from where she was sitting. However, she did see a lot of black smoke coming over the roof of no 10, the house next door to her and which lies between her house and Mr Goodrick’s house. At first she thought someone was burning rubbish. Sometime after she saw this smoke she looked up again from reading her newspaper and saw Mrs Goodrick walking up the road holding a green enviro bag over her shoulder. Mrs Goodrick went to the corner of Mr Small’s fence and stopped. According to Mrs Ronan she usually stopped repeatedly, whilst walking, to recover her strength. Mrs Goodrick then walked off and Mrs Ronan did not think anything of it. She was unable to say what time this occurred although it was in broad daylight. However, Mrs Ronan thought that she saw Mrs Goodrick about ten to fifteen minutes or perhaps less after she saw the smoke rising above the roof of no 10. At some stage she went into the street to get a better look. She could not remember seeing any flames but saw smoke coming from everywhere around the house. She agreed that, from her regular observation over the years of Mrs Goodrick, she could not walk very far without stopping and resting and recovering her strength. This time, she appeared to be walking in her normal way.
[1] The layout of the Coote Place cul de sac, the locations of various of the houses on the cul de sac and the occupants of those houses can be seen from Exhibit D4, a plan drawn in the witness box by Mr David Small.
Mr Jack Heinis lived in no 11 Coote Place. He was having tea on the day in question between about 5.30 and 6.00 pm. From the table where he was sitting he has a direct view of no 12 across the road. He saw black smoke as he was finishing his tea and rang the emergency number 000. He did not see any flames. He had not seen Mrs Goodrick or Mr Goodrick all day, although Mr Goodrick did turn up later on after the fire brigade had arrived. He did not hear any arguing coming from no 12 that day.
Mr Maurice Kelly is a cousin of Mrs Goodrick. He had driven to Ceduna from Pt Lincoln, on the afternoon in question, to go to the funeral of a family member. He arrived late in the afternoon although, from his evidence, it is not possible to be precise as to the time of his arrival. He was to stay at no 46 Kloeden Street, Ceduna. As soon as he arrived at 46 Kloeden Street and started to enter the front gate he observed Mrs Goodrick walking through the side gate. They both went inside. Mrs Goodrick appeared to Mr Kelly to be agitated – “going off” – he inferred that she and Mr Goodrick had been having an argument but he was not told this. The following exchange occurred between him and Mrs Goodrick (T65):
We all went inside. She had some beer there in the kitchen and I said “I’ll have a beer”, so I had a beer and Kathy started crying and I said “What are you crying for Kathleen?”. She said “No, the police will be here to pick me up later”, I said “What for”, and she said” I don’t know”. … ‘
Mr Kelly observed her to be shaky and smoking a lot. He described her as “pissed”. However, she was able to talk and walk. At some stage later that evening the police arrived at 46 Kloeden Street. Mr Kelly never asked Mrs Goodrick why the police would be coming to pick her up and she never told him.
Mr James Kell lived at 13 Coote Place. He was a member of the volunteer fire brigade. He had been sleeping late in the afternoon but became aware of the existence of the fire when his telephone rang. He went outside and walked across to no 12. He did an outside reconnoitre to check if anyone was inside. There were other neighbours in the street. When the fire brigade arrived he supervised the fire fighting operations.
Mr David Small lived in no 7 Coote Place. He said that he regularly socialised with some of his other neighbours including Mrs Goodrick and Mr Goodrick at his house. He was first aware of the fire when he heard a neighbour yelling and he looked and saw smoke. He said that he had seen Mrs Goodrick leave the house about five minutes before he observed the smoke. He saw her walking up the street past his house. He said that she was walking unusually fast for her. He said that she usually walked quite slowly and needed to stop from time to time to rest and get her breath. He noticed that she had a green bag that appeared to contain something and he also said that he heard arguing coming from no 12 that day.
Former Senior Constable Paul Liersch and Constable Lynette Gibson also gave evidence for the prosecution . Constable Gibson arrived at 12 Coote Place at about 6.00 pm. She saw smoke coming from all over the building but mainly from the back bedroom. She observed Mr Goodrick there together with neighbours and took various statements. At about 9 o’clock that evening she went with former Senior Constable Liersch to look for Kathleen Goodrick. They found her at 46 Kloedon Street. According to Constable Gibson, Mrs Goodrick appeared upset and appeared to have had a fair bit to drink and was moaning or crying but obviously distressed. She was disturbed by or apprehensive of the police presence. She described her as not “full drunk” but as being six on a scale of one to ten. Senior Constable Liersch described seeing Mrs Goodrick at 46 Kloedon Street and that she was “drunk” with slow and slurred speech. Mrs Goodrick was arrested by Senior Constable Liersch at 46 Kloedon Street.
Three witness statements were tendered by the Prosecution with the consent of the Defence. Ashton Scott was the person who told Mr Goodrick that his house was on fire. Douglas Shill is the Housing SA Maintenance Co-ordinator for the Ceduna area. His evidence was to the effect, inter alia, that the repairs for the property at 12 Coote Place were put out to tender in the amount of $36,819.09. He also identified other costs associated with the repair of the property. Mr Goodrick also gave evidence to the effect that he had suffered approximately $5,000 of loss and damage to furniture, whitegoods and personal effects. The extent and value of the damage has not been contested by the Defence and I find that the damage caused exceeded $30,000.
Finally, there is Priscilla Peel’s statement of evidence (also admitted by consent). She confirmed that she was at John Goodrick’s house on that afternoon, that she was pretty drunk and that she got Mr Goodrick to take her home to 56 Kloedon Street, just before dark, about sunset. She does not recall Mrs Goodrick saying anything about burning the house down.
Finally, the Crown called, in support of its case, Brevet Sergeant Carolyn Walton. Ms Walton clearly is an experienced crime scene investigator with particular expertise in the examination of fire scenes. She has performed over 400 fire scene examinations during her career with the police department. When doing such an examination her primary purpose is to attempt to determine the origin and the cause of the fire. I accept that Brevet Sergeant Walton is highly experienced in this area and I accept that her experience qualified her to give the evidence that she gave before me in connection with the origin and cause of the fire at 12 Coote Place.

Brevet Sergeant Walton gave quite detailed and lengthy evidence. I do not need to set out a summary other than to say that she gave detailed evidence of her observations of the fire scene on 21 July (the morning after the fire) and her analysis and expert opinion as to the origin and cause of the fire.
She reached the following conclusions which I accept. She determined the room of origin to be the bedroom in which Mr Goodrick, and Mrs Goodrick when she was with Mr Goodrick, slept. That bedroom is on the north west corner of the house and is shown as bed 1 on the hand drawn plan of the premises prepared by Mr Goodrick in the witness box (Exhibit P3) and as the unlabelled room, being the room immediately to the left of the room described as bed 1 , on the plan prepared by Brevet Sergeant Walton, being Exhibit P1. That room of origin can also be seen in photographs 10, 11 and 12 of Exhibit P2. Brevet Sergeant Walton concluded that the point of origin for the fire was the right hand side (when looking from the camera) of the double bed shown in photograph 11. According to Brevet Sergeant Walton, photograph 11 shows iron slats, being part of the frame work of the bed, exposed because both the bedding and the mattress had been completely burned away at that point of origin.
Brevet Sergeant Walton having determined this as the point of origin of the fire was able to exclude from consideration as a possible cause any accidental electrical cause within the vicinity. In addition, she found no evidence of accidental ignition sources. She could not find a potential ignition source at the point of origin or near the point of origin which could explain how the fire started. By way of ultimate conclusion she agreed with the prosecutor’s proposition (T109):
QSo it would be fair to say then that, having regard to your examination, human involvement would have been necessary for the fire to start.
Brevet Sergeant Walton also said that the bedding on this bed would have been a lot more easily combustible than the foam mattress. In her opinion the fire is likely to have started in the bedding itself; whatever the ignition source, it would be easier to light the cotton materials and blankets than the mattress itself. Furthermore, she was of the view that the fire was a “very lazy slow fire”. She found no evidence of accelerants having been used. There was nothing found by her during her examination that would enable her to say whether or not the human involvement required to initiate the fire was accidental or deliberate (T111).
Brevet Sergeant Walton agreed that accidental electrical cause was the only thing that she was able to positively exclude. She also agreed in cross-examination that the fire in this case could have been caused by – that is, in effect, was consistent with having been caused by - an accidentally discarded cigarette. (T114). She gave a detailed and helpful explanation to the court as to how a discarded tailor made cigarette can continue to burn once lit and how it can, in appropriate conditions, give rise to a fire if left in contact with bedding (T114-115). She agreed that if such a fire had been caused in this way it could produce a smouldering fire where smoke would not be visible immediately. She said it could take roughly between four and eighteen minutes before such a fire would reach flaming combustion although those times are variable. She agreed that someone with poor eyesight might take longer to become aware of such a smouldering fire than someone with better eyesight.
As I have indicated, all of the witnesses that I heard, in my view, attempted to do their best to recall the events of the day and to give as accurate an account of those events as their memories would allow. On the basis of the evidence I make the following findings:
1.Mr John Goodrick and Ms Priscilla Peel left Mr Goodrick’s house sometime in the late afternoon or early evening after arguing with Mrs Goodrick.
2.Mrs Goodrick was left alone in the house.
3.Approximately 20 minutes to half an hour after leaving the house and going to Ms Peel’s house, Mr Goodrick received a communication from Ashton Scott which caused him to return immediately to his house which was then on fire.
4.At some time prior to Mr Goodrick’s return both Mr Small and Mrs Ronan observed Mrs Goodrick walking up the street away from no 12. Mr Small observed her at a time very shortly before he was aware of the smoke from the house at no 12 and Mrs Ronan observed her shortly after she became aware of the smoke.
5.Mrs Goodrick was walking more hurriedly, at least for part of this journey, than was her usual habit.[2]
6.The fire at 12 Coote Place that afternoon started on the bed in Mr Goodrick’s bedroom at the point identified in evidence by Brevet Sergeant Walton.
7.Any accidental electrical cause can be excluded beyond reasonable doubt.
8.There being no evidence to suggest even the possibility of any other accidental cause not involving human action[3], human action of some type was involved in the cause or initiation of the fire.
9.Mrs Goodrick threatened Mr Goodrick very shortly prior to him and Ms Peel leaving the house with words to the effect that she would set fire to his house.
10.Mrs Goodrick after leaving 12 Coote Place and after passing by Mr Small’s house was behaving in an agitated manner and was distressed.
11.Mrs Goodrick said to her cousin, Mr Maurice Kelly, when she met him at 46 Kloedon Street words to the effect that the police would be here to pick her up later.
[2] In this respect, I have accepted the evidence of Mr Small. This does not mean that I necessarily reject the evidence of Mrs Ronan. She could have been mistaken or simply observed Mrs Goodrick at a different stage of her walking.
[3] I reject such possible causes of fire as static electricity or sunlight being focussed through windows or some form of friction as being fanciful, at best, on the state of the evidence.
As I indicated at the beginning of this judgment, the prosecution’s case is wholly circumstantial. The findings I have set out above are broadly consistent with those that the prosecution put to the court in closing submissions as being findings available on the evidence and upon which the prosecution relied. The prosecution asked the court to infer from such findings of fact: first, that the human intervention necessary to enable the fire to commence was that of Mrs Goodrick and second, that she deliberately, by some manner, started the fire. On this basis the prosecution maintained that elements (a) and (b) of the crime of arson (see paragraph [6] above) were satisfied; elements (c) and (d) were never seriously in dispute.
In short, the prosecution asked the court to infer beyond reasonable doubt that Mrs Goodrick, either by use of matches or a cigarette lighter, deliberately ignited the bedding on the double bed with the intention of and effect of causing the house fire.
As I earlier indicated, before I could draw such an inference I would have to be satisfied beyond reasonable doubt that it is not just a rational inference available or arising from facts directly proved by the evidence but that it is the only rational inference open on the evidence. Before considering this issue further, I need to make some other findings.
1.I find that Mrs Goodrick was drinking reasonably heavily that afternoon and, upon a review of the various accounts of the state of her inebriation, that she was significantly affected by alcohol. In this respect I place most reliance on the account of Mr Goodrick who had the best opportunity to observe her over a period of time, who knew her best and who was able to observe her immediately prior to his leaving the house that afternoon.
2.I find that Mrs Goodrick suffered from significant health problems and that, in particular, she was partially blind.
3.I find that she had short term memory problems and was forgetful.
4.I find that she was smoking a significant quantity of tailor made cigarettes during that day and on that afternoon.
5.I find that she had a practice of smoking in the bedroom that she from time to time shared with Mr Goodrick.
6.Based on the evidence of some of the neighbours and by my own observation of her throughout the trial, coming and going to the dock and generally, I find that she is very frail and very unsteady on her feet. She walks with a walking stick.
7.Based on the evidence of Brevet Sergeant Walton, I find it to be a reasonable possibility in all the circumstances that the type of fire that occurred at 12 Coote Place was consistent with a fire that might have been caused by a carelessly discarded or dropped burning cigarette.
8.I find it to be a reasonable possibility, having regard to all of the evidence, that Mrs Goodrick accidentally dropped a lighted cigarette onto the bed at the point of origin of the fire, and that this started the fire.
9.I find that the state of Mrs Goodrick’s eyesight, her inebriation and her short term memory problems, in combination, might serve to explain why, if in fact she did accidentally drop a cigarette, she would not have realised this until it was perhaps too late to douse or put out the fire.
10.I find that Mrs Goodrick’s hastier than usual departure, her anxiety and her expectation that the police might be looking for her are all consistent with the possibility that she was aware that a fire had started whilst she was alone in the house and whether or not she had deliberately caused it. In other words, I am not persuaded that her behaviour, as described by the various witnesses, was only consistent with a consciousness of guilt or an awareness that she had deliberately started the fire in some way.
I make no finding as to how the fire started. However, I find that the evidence discloses as a reasonable possibility that the fire was caused by an accidentally dropped or discarded burning cigarette and that Mrs Goodrick either was not aware of this or, if aware, panicked and/or was unable to put the fire out. It follows that I cannot be and am not persuaded beyond reasonable doubt that Mrs Goodrick by voluntary act damaged the relevant property by fire with the intention of doing so or being recklessly indifferent as to whether the property was damaged or not.
For these reasons I acquitted Mrs Goodrick of the charge of arson at the conclusion of the trial.