R v Hera-Singh - [2017] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HERA-SINGH
Criminal Trial by Judge Alone
[2017] SADC 43
Reasons for the Verdict of His Honour Judge Boylan
26 April 2017
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
Accused charged with one count of attempted arson - trial by judge alone - prosecution did not prove final element of attempt beyond reasonable doubt - accused had not moved from preparatory to executory stage.
Held: Not guilty.
The Queen v Collingridge (SASR) 117; R v Litholetovs [2002] EWCA Crim 1154; R v Geddes (1996) The Times, July 16, 1996; O'Connor v Killian (1984) 38 SASR 327; DPP v Stonehouse [1978] AC 5; R v Stone [2011] NICA 1, considered.

R v HERA-SINGH
[2017] SADC 43

Rebecca Louise Hera-Singh is charged with attempted arson. She pleaded “not guilty” and, at her election, I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
The charge is as follows:
Statement of Offence
Attempted Arson. (Sections 85(1) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rebecca Louise Hera-Singh on the 3^rd day of April 2014 at Holden Hill, knowing that she had no lawful authority to do so, attempted to damage by fire a house, the property of the South Australian Housing Trust and the cost of the damage to the said house if the offence had been completed would have exceeded $30,000.
Undisputed facts
By way of introduction, I set out some undisputed facts, all of which I find proved beyond reasonable doubt.
The accused is a good friend and a former lover of Mr Giovanni Leone, also known as “John”.
By April 2014, Mr Leone had been in a sexual relationship with Ms Roxanne Wade for about six months. Ms Wade lived in a unit owned by the South Australian Housing Trust at 3/3 Avocet Street, Holden Hill. As at 3 April 2014, the unit was valued at $126,000 and its contents were insured for between $20,000 and 25,000.
On the night of 2 to 3 April 2014, Ms Wade was alone in her unit. At about 5.00 am, she heard and saw an intruder outside the laundry door. She rang the police, who arrived soon afterwards.
The police officers searched the carport and rear yard. In the yard, they found the accused hiding behind a sheet hanging on a clothes line. She was dressed in dark clothing, which included a black hooded cardigan, and was in possession of gardening gloves, a head torch[1] and a cigarette lighter. Against the rear wall of the unit the police found a two-litre Coke bottle filled with petrol. Under Ms Wade’s car in her carport was a block of wood with three holes drilled in it. The carport smelled of petrol.
[1] The accused initially denied being in possession of the torch but accepted in cross-examination, she was in possession of it.
The accused had driven to Ms Wade’s unit in her brother’s Hilux utility. She parked it out of sight of the unit, some 30 to 40 metres away, near a vacant block which gave access to Ms Wade’s back fence. Police officers searched the Hilux. In it they found a jerry can of petrol, 10 canisters of butane with lids on, the accused’s mobile telephone plugged into the vehicle’s telephone charger, and four lids for butane canisters. On the road surface under the passenger side of the Hilux they found a plastic pot.
The accused was arrested and taken to the Port Adelaide Police Station.
Ms Wade remained at her unit with attending police officers until she left with them to travel to the police station to make a statement. Apart from calling into her unit later in the morning to change her clothes, Ms Wade was away from her unit for a few days. On her return, she noticed two bags – a striped canvas bag and a plastic Big W shopping bag – behind Sulo bins at the rear of her carport. She called the police. Officers attended, examined and photographed the bags. The striped bag contained children’s clothing and four butane canisters without lids. The plastic bag contained a block of wood with three holes drilled in it, a small screwdriver, and a Solo soft drink bottle filled with petrol.
The accused’s mobile telephone was examined. It contained a photograph of a fridge magnet advertising Ms Wade’s business and a photograph of Ms Wade’s car parked in the carpark at her business premises. That photograph clearly shows the registration number of Ms Wade’s vehicle.
A number of items collected by police from Ms Wade’s premises and from the accused’s person were examined by a forensic scientist, Mr Paul Pigou. He found petrol residue on the accused’s gloves and on the timber block found under Ms Wade’s car.
The prosecution case
The prosecution case is that, motivated by jealousy, the accused attended at Ms Wade’s premises intending to set fire to the unit and was attempting to do so when she was interrupted by the police.
The accused’s case
The accused gave evidence and called one witness, Dr Begg, psychiatrist.
The accused’s case is that she was suffering great stress on the morning of 3 April 2014 and needed to see her friend, Mr Leone. Believing that he was at Ms Wade’s unit, the accused drove there. While there, she decided to commit suicide by setting fire to herself. The accused denied being jealous of Ms Wade’s relationship with Mr Leone, denied trying to break into the unit and denied intending to set fire to it.
Dr Begg gave evidence that the accused, while competent to commit the offence, was suffering from an adjustment disorder, a psychiatric illness whereby the sufferer becomes extremely distressed and can have impaired general functioning. The accused is more vulnerable when dealing with stressful events than others. Attention seeking is a feature of her disorder. I accept Dr Begg’s opinions.
Assessment of the prosecution witnesses
The prosecution called Ms Wade, Mr Leone, a number of police officers and Mr Pigou. In my view, all of the prosecution witnesses were honest. They were also generally reliable and accurate.
In assessing the evidence of Ms Wade, I have taken into account her fear at the time she made observations. In Mr Leone’s case, I have borne in mind the fact that he remains the accused’s good friend. There is one inconsistency in their evidence. Mr Leone said that, when Ms Wade telephoned him on the morning of the incident, she told him that she first heard noises and saw a figure at her laundry door after getting up to go to the refrigerator for a glass of water. Ms Wade’s evidence was that she was woken by a noise at her bedroom window, got up and then saw a hooded figure bending over the outside handle of the laundry door. I prefer and accept Ms Wade’s account of her waking. But the inconsistency does not matter: there is no dispute that, shortly after getting out of bed, Ms Wade saw a figure at her laundry door.
I have considered the evidence of the accused in the same way as I have considered the evidence of the other witnesses. I shall deal with it in more detail shortly. I do not accept much of the accused’s evidence but I emphasise here that my rejection of her evidence is no basis for conviction. I have reminded myself of the presumption of innocence and directed myself that, before I can convict the accused, I must be satisfied that the evidence produced by the prosecution proves the offence beyond reasonable doubt.
A Disputed Matter
Before turning to the evidence of the accused, I deal with a factual matter in contention, namely, whether the two bags found behind Ms Wade’s Sulo bins were there when the accused and police officers were at the unit in the early hours of 3 April 2014.
Ms Powell, counsel for the accused, submitted that, had the bags been there then, police officers would have found them. In support of her argument, Ms Powell relied on the different positions of the three bins as they appear in a set of photographs taken on 3 April 2014 and a set taken on 9 April 2014. There can be no doubt that the positions of the bins on 9 April were different from their positions when photographed on 3 April. Ms Wade’s evidence was that she had not moved the bins.
The accused gave very confusing evidence about the bags. In evidence-in-chief, she said that she could identify the striped bag as hers and that the clothes in it belonged to the daughter of a friend for whom she babysat. She owned butane canisters but could not be sure if the canisters in the striped bag were hers. She had last seen the striped bag in the previous week, in her carport. The accused said that she did not recognise the Solo bottle in the Big W bag, saying that the only petrol she left at or near the unit was that which was in the Coke bottle and the jerry can. In cross-examination, she denied taking either of the two bags onto Ms Wade’s property.
I am satisfied beyond reasonable doubt that the two bags were behind the Sulo bins when police officers first attended on 3 April. The bags were not alone: there was a bag of potting soil next to them. I am satisfied that, if police officers even noticed the two bags, they did not bother to examine them, given their positions. There were a number of police officers present who must have walked in the small area near Ms Wade’s car and the bins. They must have moved the bins as they did so and after the first set of photographs were taken.
Evidence of the accused
The accused is 35. She and her former husband have an 11 year old daughter, Hannah, and for many years they have been in a bitter dispute about Hannah’s living arrangements. Some years ago, the accused suffered a back injury and is in constant pain. Her injury has prevented her from earning a good income and she was, by April 2014, in financial difficulty. All of those matters – the dispute with her former husband, her chronic pain and her financial difficulties – have affected her emotional wellbeing and, by April 2013, she was not coping very well mentally.
During the night of 2 to 3 April 2014, the accused awoke from a nightmare feeling very distressed about her situation. She felt that she needed to speak to Mr Leone. She got up, dressed in her dark work clothes and drove to his house. Once there, she thought that he was not at home, so she drove to Ms Wade’s unit in the belief that he would be there. She was in her brother’s Hilux utility, on the tray of which was a toolbox containing his valuable tools of trade. She parked the vehicle around the corner and out of sight of Ms Wade’s unit because she wanted to leave it in a well-lit positon where the tools would be safe from interference.
On arrival, at about 3.00 am, the accused went into Ms Wade’s rear yard and sat, crying but silent, on an outdoor sofa intending to wait there until she heard Mr Leone’s and Ms Wade’s voices: she did not want to appear rude by waking them. After a time she felt cold and returned to the vehicle for warm clothing. It was then that she noticed the Coke bottle filled with petrol – a bottle which she had put in the car – and decided that the best way to end her problems was to commit suicide by setting fire to herself in Ms Wade’s back yard. But, once back in the yard with the bottle of petrol, she heard strange voices and hid behind a sheet hanging on the clothes line. The voices turned out to be those of police officers.
The accused spent some time in custody at the Port Adelaide Police Station but was taken from there to hospital and then spent some days in psychiatric wards.
The accused admitted that she had sent a number of text messages to Mr Leone in February 2014, telling him in one of them that he had played with her head and heart. She also admitted sending text messages to Ms Wade to let her know that Mr Leone had cheated on her by sleeping with another woman. But she denied being jealous of Mr Leone’s and Ms Wade’s relationship: she was “being nice” in letting Ms Wade know what was going on.
The accused admitting taking photographs of the fridge magnet advertising Ms Wade’s business, but denied taking the photograph of Ms Wade’s car.
The accused denied that she had tried to break into Ms Wade’s unit, denied that she had made noises at the bedroom window and denied that she had ever been near the laundry door. But she agreed that there was nobody else in the yard while she was there. She did not deliberately take a cigarette lighter onto Ms Wade’s premises and did not put the two bags behind the Sulo bins.
Assessment of the accused’s evidence
The accused was a most unsatisfactory witness. She was evasive and verbose, claiming to be unable to recall many matters, relying on what she described as the unreal and dreamlike quality of the occasion. I give but two examples. When being asked about her decision to visit Mr Leone in the small hours of the morning, there were these questions and answers:
QWas it unusual to visit him at that time of the morning.
ANo, it wasn’t.
QWhen did you make the decision to go to Ms Wade’s house to look for Mr Leone.
AIt’s really strange it was all like a dream. I don’t know how to explain it. I woke up in a terrible state and was looking for support and guidance. [2]
[2] T 273, line 27.
Next, when pressed in cross-examination about her claim that she had plugged her phone into a non-working telephone charger in the Hilux, there was this interchange:
QWould you plug the charger into the car if the charger didn't work.
AI think I did to try it but I'm not sure because it was a long time ago.
HIS HONOUR
QDo you have a lot of trouble with your memory.
AWith that, like with some things I do.
QWhat sort of things.
ALike traumatic events some things. Like this. Because some of the things are very cloudy. I tried to give as much information as I possibly can because like when I woke up it was very, like a dream almost. It wasn't - I can remember quite clearly from when I heard voices inside, like I was - I don't know, but I still remember, like, saying to myself 'Is this a dream? I should be waking up' like but, yeah, I don't remember. There are some incidents that happened previously that I do remember.[3]
[3] T 340, line 9.
Some of her explanations were quite implausible. I set out a few examples only.
The petrol
The accused’s evidence was that she kept petrol in jerry cans in her carport because her sister would drive down from Port Pirie and need petrol once she arrived in Adelaide. The accused also needed petrol for her lawnmower and other gardening equipment. She kept a jerry can of petrol in her brother’s vehicle because she had no money to buy petrol. Because it was difficult to pour petrol into the fuel tank from the jerry can, she decanted it into the Coke bottle first. To assist with that decanting, she had made a makeshift funnel by cutting off the bottom section of another Coke bottle. She kept the Coke bottle in the pot found under her vehicle to prevent petrol stored in it from spilling inside the vehicle.
The torch
The accused assumed that the head torch found in her possession was one that she had borrowed from Mr Leone. She denied that she had worn it at any time and said that she did not know it was on her person. She did not mean to have it and did not know how it came to be in her possession. In cross-examination, she said that she had no recollection of having the torch on her “unless it was on the car seat and got caught up in the woollen jumper”.
The cigarette lighter
When asked about the reason for being found with a cigarette lighter in the pocket of her jacket, the accused said that the lighter had been sitting in the car and that she assumed she put it into her pocket when she picked up the Coke bottle. She was not 100 percent sure to whom the lighter belonged. She said:
I think it was in the car previously. My dad smokes, everybody smokes…it was like a dream that it wasn’t me, I wasn’t there. It’s hard to explain.[4]
[4] T 284, line 6.
She agreed that she did not smoke and said that her brother did not smoke “that she knew of.”
Not looking for Mr Leone’s car
In evidence-in-chief, the accused said that she went to Ms Wade’s house to see Mr Leone. But in cross-examination, when asked if she noticed if his car was there when she arrived at Ms Wade’s premises, she said that she did not take any notice. She was asked:
QAre you telling me that it didn’t cross your mind even to look around to see if his car was there before you went into the back of the unit.
She answered:
ANo, because I wasn’t sure when he parked anyway when he was there.
It does not make sense that, having gone to Mr Leone’s house and decided that he was not there, that she would drive to Ms Wade’s and not even look out for any sign of Mr Leone’s car.
The Coke bottle
She was cross examined about taking the Coke bottle filled with petrol into Ms Wade’s yard. She was asked:
QWhy did you decide to take the Coke bottle onto the premises at the unit.
She answered:
AI could not say probably because – I don’t know. I suppose that in some ways, like when, you know, I think that like that’s part of the reason why I console in John is because you are almost looking for some support and some guidance and things like that instead of taking your own life I’m not one hundred percent sure.
I then asked the accused:
QYou are telling me that you have no idea why you took the Coca Cola bottle filled with petrol into the backyard.
She answered
AThe only thing is for like for harming myself because I thought that if I had it I can, like I just had enough it is the only way that no-one else can help me.[5]
[5] T 346, line 9.
The accused appeared to me extremely evasive in answering the questions I have just quoted.
The bags behind the Sulo bins
She was asked about the striped calico bag containing children’s clothing, the bag which was found next to the Woolworth’s shopping bag containing a bottle of petrol. She was asked at page 349 of the transcript:
QBut do you accept that you took that bag to the property.
ANo, I do not.
QDo you know how that bag came to be there.
ANo, I do not.[6]
[6] T 349, line 35
Her evidence about the striped bag does not make sense. She had earlier said in her evidence that she recognised the children’s clothing in it and that she had last seen the bag in her carport about a week earlier. In my view, the accused was trying to distance herself from any connection with the two bags found behind the Sulo bins.
The photographs
The accused was asked (at page 289) about the photographs of Ms Wade’s car which were found in the accused’s telephone. When asked if she had taken those photographs, she answered:
ANo. From what I remember, I was sent them by the person I told about the business because they went there and they said that no-one answered the door and they sent me messages and asked me if I knew if she was there and I said 'Well, supposed to be'.[7]
[7] T 290, line 6.
The matters to which I have just referred are only some examples of unsatisfactory aspects of her evidence. There are many others.
Findings of fact
I find the following matters proved beyond reasonable doubt.
The accused was jealous of Mr Leone’s relationship with Ms Wade and planned to set fire to her unit. She took photographs of the fridge magnet advertising Ms Wade’s business and of Ms Wade’s car to find out where Ms Wade lived.
The accused deliberately dressed in dark clothing, armed herself with gloves, a head torch, a cigarette lighter, blocks of wood with holes drilled in them, canisters of butane which could be fitted into those holes, and petrol decanted into soft drink bottles before driving to Ms Wade’s unit. She took all of those items with her when she entered the premises, in addition to the two bags and their contents later found behind the Sulo bins. She tried to break into the unit, first, by testing the flyscreen at Ms Wade’s bedroom window and then by trying to open the laundry door. It was the accused whom Ms Wade saw crouching over the laundry door handle. Shortly before police officers found her, the accused placed the Coke bottle filled with petrol in the position in which the police officers found and photographed it. At some time while she was at the premises on 3 April 2014, the accused put the striped bag and the Big W bag and their contents behind the Sulo bins.

I infer from those facts and am satisfied beyond reasonable doubt that at all times when she was at Ms Wade’s unit, until shortly before the police found her, the accused intended to set fire to the unit. Her actions were deliberate and well-planned.
I am also satisfied beyond reasonable doubt of all but one of the remaining elements of the offence of attempted arson, namely, that the unit belonged to someone other than the accused; that the accused had no lawful authority to damage it; and that the accused knew that she had no such lawful authority. I am also satisfied that, if she had succeeded in setting fire to the unit, the damage would have exceeded $30,000.
The one remaining issue is this: has the prosecution satisfied me beyond reasonable doubt that the accused’s actions went beyond the stage of preparation to commit the crime of arson to her actually attempting to commit that crime? In other words, did she move from the preparatory stage to the executory stage?
In considering whether or not I am satisfied beyond reasonable doubt of this last element, I have had regard to directions to juries on the issue of attempt that have met with the approval of higher courts.
In The Queen v Collingridge (1976) SASR 117 at 131, Bright J approved the following direction:
To constitute an attempt, what is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. The accused must actually have embarked on the commission of the crime.
…
In R v Litholetovs [2002] EWCA Crim 1154 at [8] the Criminal Division of the Court of Appeal approved the following direction:
You see what is charged. You see that it is an attempt to commit the full offence. Let me tell you what an attempt in law is and then tell you what are the elements of the full offence. Before you can convict the defendant you must be sure of two things in relation to the alleged attempt. I call them (a) and (b) – (a) that he intended to commit the full offence and (b) that with that intention he did something that was more than mere preparation for committing that offence. It is said by the prosecution, and indeed he accepts, that he poured petrol over the door. The prosecution say that this amounted to more than mere preparation for the intended purpose. It is for you to decide whether what he did was more than mere preparation. Let me give examples in another context. You might think that buying a rifle and bullets with a view to shooting someone and going out in a car to see if you can find him would be mere preparation and not an attempt. But then loading it and aiming it and, say, having it knocked out of your hand just before you pull the trigger would be going beyond mere preparation and an attempt to commit the offence of shooting, murder, whatever. That is an example. Let me put it another way in relation to attempt: you have to be sure that he was actually trying to cause a fire when these two came along, as opposed to simply getting himself ready, or putting himself in the position so that he could, if he went further, make a fire. It is for you to decide whether what he said was an attempt to commit arson, or whether it went no further than mere preparation, and so it did not get as far as attempting the offence.
In that same case, at [7], Lord Justice Mantell said:
We have been referred to a number of authorities upon either side of the line which it is acknowledged it is not always easy to draw. In our view, cases such as this are always fact sensitive and the learned judge was right to leave the matter to the jury.
In R v Geddes (1996)[8], the accused was charged with attempted false imprisonment. He had been seen by a teacher in a cubicle in the boys’ toilets at a school. He had with him a rucksack which contained a knife, rope and a roll of masking tape. He ran away from the toilets when a police officer shouted at him. The defendant was convicted but the Court of Appeal allowed his appeal and quashed the conviction. The court was of the view that while there was not much room for doubt about the defendant’s intention, the evidence showed that he had made preparations, had equipped himself, had got ready, and had put himself in a position to commit the offence charged but had never had any contact or communication with any boy at the school. In those circumstances, the court said that there was insufficient evidence in law to support a finding that the defendant had gone beyond the merely preparatory stage.
[8] The Times, July 16, 1996; and see 1996 Crim Law Review, at 894.
I have not overlooked O’Connor v Killian,[9] a decision of Prior J to which the prosecutor referred. There, his Honour approved an American decision where it was held:
Where the intent to commit the substantive offence is…clearly established…acts done towards the commission of the crime may constitute an attempt, where the same acts would be held insufficient to constitute and attempt if the intent with which they were done is equivocal and not clearly proved.
[9] (1984) 38 SASR 327 at 329-30.
But that case is distinguishable from the one before me. In the case before Prior J, the accused had admitted, in an interview with police, her intention to commit the full offence. As his Honour put it:
The prosecution had to prove something more than mere preparation. It did that through the admissions made by the appellant herself.
Ultimately, I have had regard to the “nature of the full offence alleged to have been attempted.[10]”. Here, that offence, of course is arson: setting Ms Wade’s unit alight. While the accused was, by the time she tried the laundry door handle, fully prepared to commit that crime and nearly in place to commit it, I am not satisfied beyond reasonable doubt that she “had moved from the realm of intention, preparation and planning into the area of execution or implementation.”[11] In coming to that conclusion I have also borne in mind the accused’s psychiatric condition as described and diagnosed by Dr Begg. There is some danger in inferring from the actions of a woman with that condition matters which may be readily inferred in the case of a person without mental health difficulties.
[10] See DPP v Stonehouse [1978] AC 5 at 86 to 87 per Lord Edmund-Davies.
[11] See Stone [2011] NICA 1.
For the above reasons, I am not satisfied that the prosecution has proved the final element of the charged offence and I enter a verdict of “not guilty” of attempted arson.
It is regrettable that the prosecution did not see fit to charge, as an alternative or otherwise, an offence of attempted aggravated serious criminal trespass in residential premises or, at very least, an offence of being unlawfully on premises.