R v Janz

[2004] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:	R v Janz [2004] QCA 221
PARTIES:	R v JANZ, James Thomas (appellant)
FILE NO/S:	CA No 54 of 2004 DC No 330 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	District Court at Townsville
DELIVERED ON:	2 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2004
JUDGES:	McMurdo P, Williams JA and Jones J Separate reasons for judgment of each member of the Court, Williams JA and Jones J concurring as to the order made, McMurdo P dissenting
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - where appellant convicted of arson - where learned trial judge instructed jury about circumstantial evidence and rational inferences - whether the jury should have been warned of the need to be satisfied beyond reasonable doubt of intermediate facts - whether Edwards direction should have been given in relation to statements of appellant - whether summing-up was inadequate - whether verdict unsafe and unsatisfactory
Edwards v The Queen (1993) 178 CLR 193, considered Jones v The Queen (1997) 191 CLR 439, cited M v The Queen (1994) 181 CLR 487, considered Melbourne v The Queen (1999) 198 CLR 1, considered Plomp v The Queen (1963) 110 CLR 34, cited Shepherd v The Queen (1990) 170 CLR 573, considered
COUNSEL:	J D Henry for the appellant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I have read the reasons for judgment of Jones J in which the issues and facts are set out. I will only repeat or add to these to explain my reasons for reaching a different conclusion from Williams JA and Jones J and for allowing the appeal against conviction. I agree with Jones J that on the whole of the evidence it was open to a reasonable jury to be satisfied of Mr Janz's guilt beyond reasonable doubt but, for the following reasons, I have concluded there has been a miscarriage of justice requiring a retrial.

2. The learned primary judge in his summing-up left the case to the jury on the basis that the first proposition for them to consider was whether the fire was not caused accidentally but by human intervention. Only if they were satisfied beyond reasonable doubt of that, need they then go on to consider whether the only reasonable inference on all the evidence was that the fire was deliberately lit by Mr Janz. If they then excluded all reasonable hypotheses other than that Mr Janz lit the fire and were satisfied beyond reasonable doubt that the only reasonable hypothesis was that Mr Janz lit the fire, they would convict.

3. His Honour comprehensively summarised the prosecution and defence cases for the jury. The prosecution case was as follows. Mr Janz's financial difficulties showed a motive to set fire to the store, namely, to claim insurance for damaged stock and loss of income. The fire broke out within minutes of Mr Janz locking and leaving the hardware store. His theory that rats chewed electrical cable resulting in a fire was implausible because the expert evidence was that the fire broke out in the paint section at the rear of the hardware store, somewhere between the floor and the ceiling. The ladder was "the dead give-away". Mr Janz's claim that someone else took the ladder from the kitchen and placed it directly below the manhole to the ceiling after he left and locked the store "blows any theory that [the fire] was caused by electricity or intervention of an electric fault … out of the water". It was implausible that someone would start a fire in the hardware store and exit via the manhole and the ceiling. Mr Janz made a claim to police on 26 March 2001, six days before the fire, that he suspected someone had entered the toilet manhole, travelled through the ceiling space and jumped down through the store manhole, 2.57 metres above floor level. This claim was false and was to direct suspicion away from him when he later deliberately set fire to his store. All these factors in combination demonstrated Mr Janz's guilt beyond reasonable doubt but the "clincher" was the ladder.

4. The defence case was that the prosecution could not establish beyond reasonable doubt that Mr Janz lit the fire. The prosecution had not negatived beyond reasonable doubt the possibility of rats chewing through electrical wire and starting the fire because there were power leads connected to live switches in the area where the fire appeared to have started. It was impossible to know how the fire started. Mr Denham gave evidence that it was possible the fire started through an electrical fault and that rats or mice may have chewed on cables causing a short circuit and fire. There was no evidence of petrol or accelerants starting the fire. It may have been caused by a dropped cigarette butt. All Mr Janz could tell police was that he did not know what caused it. Whilst Mr Janz's hardware business was not progressing well in the months immediately before the fire, he was making pragmatic, reasonable and responsible efforts to turn the business around and may well have successfully done so. There was no evidence establishing beyond reasonable doubt that Mr Janz deliberately lit the fire.

5. The evidence at trial included the following. The fire started very shortly after Mr Janz locked and left the hardware store at 3pm on 1 April 2001 when other shopkeepers in the centre were still trading. The experts who gave evidence were unable to determine the cause of the fire.[1] It appeared to have started in the rear section of the store, above ground level and below the ceiling. There was no evidence of any electrical fault, whether caused by rats or otherwise, but it was possible that the fire started in this way and that the evidence was then destroyed in the ensuing extensive fire.[2] The owner of the butcher shop in the shopping centre had rats eat through electrical wires leading to his cold room in the previous October or November[3] and rats and mice had been seen in the shopping centre and hardware store recently. There was no evidence to suggest that a flammable substance had been poured on the floor and ignited.[4] The possibility of the fire being started by a smouldering cigarette butt could not be excluded.[5] Mr Janz told police he cleaned out his ashtrays at about 2.30pm, but this did not exclude the possibility that a customer may have carelessly or recklessly discarded a cigarette butt in the area of the seat of the fire. Mr Janz told police that youths acting suspiciously, including one Mr Janz described as a "pest", had been in the shop that day. Although there was evidence that Mr Janz's business had deteriorated in recent months, he appeared to be making realistic business plans to remedy this and his financial position was not so desperate as to constitute compelling evidence of motive. He was 57 years old and had no criminal history.

   [1]            Mr Denham, transcript 86, ll 57-60.

   [2]            Mr Denham, transcript 82, ll 40-45; 85, ll 10-20; Mr Nystrom, 99, ll 15-20.

   [3]            Transcript 51, ll 35-55.

   [4]            Mr Nystrom, transcript 101, ll 10-30.

   [5]            Above, ll 30-60.

6. The expert evidence did not exclude the possibility that the fire started by electrical fault, (whether or not caused by rats eating electrical wire), or a recklessly discarded cigarette butt. That evidence combined with the evidence of opportunity and the limited evidence of motive was, on its own, insufficient to enable the jury to conclude beyond reasonable doubt that the fire was deliberately lit. To establish this the prosecution case relied on, first, the falsity of Mr Janz's claim to police of 26 March; it was an attempt by him to set up a trail of false evidence to deflect suspicion from him when he later set fire to the store. The second and more significant matter relied on by the prosecution was the falseness of his claim that the ladder, usually kept in the kitchen, was not under the manhole when he left and locked the store shortly before the fire; this was a further attempt by him to suggest a fictional intruder was responsible for the arson and to deflect suspicion from him. The issues were left to the jury on a wrong basis. Whether the fire was caused by human intervention could not be determined without also determining whether Mr Janz lied to police to set up a false evidence trail to deflect suspicion away from him. In circumstantial cases such as this where an accused person offers investigators possible explanations for the cause of the central event, the judge should remind the jury that such attempted explanations do not shift the onus from the prosecution to prove its case beyond reasonable doubt.

7. The prosecution did not directly suggest that Mr Janz told lies on 26 March and again in his account about the ladder's position when he left the store just before the fire, demonstrating a consciousness of guilt on his part, knowing the truth would implicate him in the commission of the offence, perhaps to try to avoid the need for the complex jury directions set out in Edwards v The Queen.[6] Defence counsel at trial requested no such direction. The result was that the jury were given no particular assistance as to how they should treat this significant and central evidence. Although not using the combination of words recorded in Edwards, there can be no doubt that the prosecution contended that Mr Janz lied about these matters and that those lies proved his guilt. The learned primary judge should have given in respect of each alleged lie the directions set out in Edwards. The lie should have been precisely identified. The jury should have been told that they may take the lie into account only if they are satisfied that it was a deliberate lie and that it revealed a knowledge of the offence or some aspect of it and that it was told by Mr Janz to set up a trail of false evidence to deflect suspicion from him in the offence of arson which he planned to commit (26 March) or had committed (the position of the ladder). They should have been reminded that there may be reasons why Mr Janz gave false information apart from the setting up of false evidence to cover his own guilt.

   [6] (1993) 178 CLR 193, Deane, Dawson and Gaudron JJ 210-211.

8. As to what the prosecution said was the lie of 26 March, the jury should have been told to first consider whether it was a deliberate lie; that even if they were satisfied that the store was not entered in the manner suggested by Mr Janz, that did not necessarily mean he was lying to deflect suspicion from himself in a planned arson of the store. For example, he had business problems and his wife had been unwell with cancer; he told police that he was angry with youths who visited his store and he displayed a sign on the front of the store, "youths in company, just looking, not welcome in this store"; he was unsure whether anything had been taken. In his anxious state he may have been mistaken and jumping at shadows. As to what the prosecution said was a lie about the position of the ladder, the jury should have been instructed to consider whether it was in fact a deliberate lie told to deflect suspicion from him and not just a mistake in the confusion of the aftermath of the fire and a fanciful hypothesis born out of excessive zeal to assist investigators; in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The jury should also have been told that, relevant to both instances, lies may sometimes be told out of panic, to escape an unjust accusation, to protect another or to avoid some consequence extraneous to the offence.[7]

   [7]            Edwards, 211.

9. Mr Janz's counsel on the appeal contends the falsity of both the account of 26 March and the claim that he did not position the ladder under the manhole before the fire were essential intermediate facts relied on by the prosecution to establish the circumstantial case against him requiring proof beyond reasonable doubt: Shepherd v The Queen.[8] His claim to police on 26 March was a piece of circumstantial evidence on which the prosecution relied to prove guilt but it was not essential to a reasoned conclusion of guilt. The statement from Mr Janz that he did not place the ladder under the manhole before locking and leaving the store was in a different category. It was proximate in time and place to the fire and linked the evidence of motive and opportunity. On the prosecution case, it was an essential link in the chain of evidence showing Mr Janz's guilt. As the prosecutor said in his closing address, it was "the dead give-away" and "the clincher". The jury should have been told that they must be satisfied beyond reasonable doubt that Mr Janz deliberately lied when he said the ladder was not in that position under the manhole when he locked and left the store and that he put the ladder in that position to deflect suspicion from him, to suggest that an intruder entering or leaving through the manhole was responsible for the fire. See Shepherd[9] and Brennan J's observations in Edwards:[10]

   "However, if the prosecution seeks to rely on the telling of the lie as an admission of guilt and invites the jury to treat that evidence as an independent proof of guilt, the prosecution bears the same onus as it bears whenever it relies on an alleged confession as an independent proof of guilt. It must prove beyond reasonable doubt that a confession of guilt was made."

   [8] (1990) 170 CLR 573, 579-581, 585.

   [9]            Above.

   [10]           At 201.

10. There is an additional matter which causes me concern. Insurance investigator Bevan in his tendered interview with Mr Janz asked him:

    "Jim, have you ever been in any form of trouble with the authorities?
    Ever been charged with any criminal offence? – No."

11. Police officer Campbell also gave evidence that he had checked police records and determined that Mr Janz had no criminal history.

12. Whilst a trial judge is not obliged to direct a jury about an accused's good character, the evidence of Mr Janz's good character here, although limited to the fact that he had no criminal history, was relevant to both his credibility and the likelihood of him deliberately setting fire to a store containing combustibles at 3pm on a Sunday in a hardware store in an open shopping centre frequented by staff and customers so as to falsely claim insurance. In these circumstances a jury direction as to the use to be made of good character evidence should have been given: Melbourne v The Queen.[11]

    [11] (1999) 198 CLR 1, McHugh J 19-22; Gummow J 29-30; Kirby J 44-47.

13. The learned primary judge was not asked to and did not give any such direction. Although the absence of this direction was not raised in any ground of appeal, Mr Janz's counsel in his opening words to this Court recognised the significance of the evidence by referring to Mr Janz's age and absence of criminal history.

14. The case was finely balanced and a jury could have returned a verdict on the evidence of either guilty or not guilty. There is a real danger that the absence of the required judicial jury directions as to lies showing guilt, the need to prove beyond reasonable doubt an essential link in the circumstantial case and the use to be made of good character evidence may well have caused a miscarriage of justice and deprived Mr Janz of the chance of an acquittal.

15. I would allow the appeal and order a re-trial.

16. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jones J wherein there is a summary of evidence relevant to the determination of this appeal.

17. Having regard to all of the evidence I am satisfied that it was open to the jury to conclude that the fire was not started accidentally on any of the three bases advanced before the jury and again on the hearing of the appeal, namely electrical fault, electrical wires being chewed through by rodents, or by a discarded burning cigarette butt.

18. Given all of the evidence a reasonable jury could have reached the conclusion beyond reasonable doubt that the fire was deliberately started. The question then arose whether it was the appellant or an intruder who had started the fire. As the fire started within a minute or two of the appellant locking up and leaving the premises he clearly had the opportunity of so doing. It was the appellant who in statements to fire investigators raised the possibility of an intruder lighting the fire. Given the complaint made by the appellant to police about a week before the fire of a possible intrusion, and given his statements to fire investigators as to the position of a ladder after the fire, a reasonable jury was entitled to reject the hypothesis that the fire was started by an intruder. I agree with the analysis by Jones J of the evidence as to the appellant’s opportunity to start the fire and of the evidence claimed by the appellant to support the inference that the fire was started by an intruder.

19. Overarching all of that evidence is the evidence of motive also detailed in the reasons of Jones J. Whilst the evidence of motive would not alone be sufficient to support the conclusion that the appellant set the fire, it is evidence which adds considerable weight to the other circumstances supporting the inference that he did so.

20. I agree with what Jones J has said on the added ground of appeal that the learned trial judge failed to direct the jury adequately as to proof of intermediate findings of fact.

21. The submission of counsel for the appellant was that the learned trial judge erred in his summing up in not directing the jury that they needed to be satisfied beyond reasonable doubt of two “intermediate facts” before they could use them as a basis for inferring guilt. The suggested “intermediate facts” were the following:

    (i)      that the appellant’s account to the police on 26 March 2001 was false;

    (ii)      that the ladder seen under where the manhole had been in the store the day after the fire was located in that position at the time of the fire.

22. With respect to the ladder the appellant volunteered in an interview with Nystrom that when he inspected the scene on the morning after the fire a ladder was standing below the shop’s manhole, and it was not there when he left the shop shortly before the fire. At the time Nystrom first inspected the scene there was a ladder lying on its side roughly positioned underneath the manhole. In his interview with Sergeant Campbell the appellant volunteered that the ladder in question was not a sale item in the hardware store but was for his own use and normally located in the shop’s kitchen.

23. The prosecution did not contend at trial that with respect to either of those two matters the appellant had lied evidencing a consciousness of guilt. In consequence no direction in accordance with Edwards v The Queen (1993) 178 CLR 193 was given or called for. Essentially the contention of the prosecution was that in making the complaint of 26 March 2001 the appellant was attempting to deflect suspicion from himself. It is true that the prosecution contended that the appellant’s statement that the ladder was not under the manhole when he left the store prior to the fire was false, but that was then said to be nothing more than another instance of the appellant attempting to deflect suspicion from himself.

24. Considered in that light each of the two matters referred to was no more than another element in the circumstantial case against the appellant.

25. To my mind neither of those matters satisfies the test of being an “intermediate fact which is a necessary basis for the ultimate inference” within the reasoning of the majority in Shepherd v The Queen (1990) 170 CLR 573. As Dawson J illustrated therein at 579 an accused’s presence at the scene of the crime would in many instances be an intermediate fact of such a kind. Neither the fact that the ladder was positioned under the manhole at the time of the fire nor the fact that the appellant lied when he said it was not so positioned when he left the store are intermediate facts of such a quality. Neither fact is a necessary step in the reasoning process leading to conviction.

1. The jury were clearly directed as to the onus of proof and with respect to the onus where the prosecution case was based on circumstantial evidence. In my view there was no necessity in this case to direct the jury that they had to be satisfied of either or both of the matters referred to before they could have regard to those matters in determining whether they could draw the inference beyond reasonable doubt that the appellant was guilty. As Jones J has pointed out in his reasons even leaving aside those matters the prosecution case was quite strong.

2. It is also true that no reference was made in the summing up to the appellant’s previous good character. No such direction was asked for and its omission from the summing up was not made a ground of appeal. I am not persuaded that there was any error made by the learned trial judge in that regard; a trial judge is not obliged to give such a direction.

3. I agree with all that has been said by Jones J and the appeal must be dismissed.

4. JONES J: The appellant was convicted at trial of one count of arson of a retail premises at Annandale, Townsville. He was sentenced to four years imprisonment. The appellant appeals against his conviction on the grounds that the verdict was unsafe and unsatisfactory. To that he has, by leave, added a further ground namely that the trial was miscarried because the learned trial judge’s direction on the use of circumstantial evidence was deficient.

   Background facts:

5. The offence occurred on Sunday, 1 April 2001 at approximately 3.00 pm. The appellant was the owner of a retail hardware business carried on from leased premises which were part of a small retail shopping complex. Other businesses in the complex included a fruit shop, a fish and chips shop, a mini-mart, a butcher shop, a hairdresser and a liquor store.

6. The appellant closed his store shortly before 3.00 pm as per his normal Sunday trading hours and proceeded to drive to his home. In the course of his journey home, he noticed in his rear vision mirror that a fire engine had been dispatched from the local fire station. The fire engine had been directed to the blaze in the appellant’s store. The fire had been first observed at 3.00 pm by a shopper whose attention had been attracted by the fire alarm. A triple 0 call was made at 3.02 pm, and the fire engine was dispatched at 3.07 pm arriving at the scene at 3.12 pm.

7. The fire officers who gave evidence stated that they first noticed smoke coming from the complex but did not see any flames. The smoke was concentrated around the hardware store and the adjoining fish and chip shop. They tried to gain entry to the hardware store but the doors were locked making it necessary for the fire officers to break a glass panel. Extinguishment of the fire was hindered by numerous explosions in the hardware store, which were thought to be caused by pressure pack cans reacting to the heat. Upon entering the store, one fire fighter observed flames coming from some shelving at the back of the shop. The fire was eventually brought under control but the shopping complex was essentially destroyed. The scene was placed under police control.

8. The fire was investigated by a number of experts –

Mr Brad Tipping - Fire scenes examiner for the Fire Rescue Authority.

Mr Murray Nystrom - Forensic chemist employed by Australian Forensic Pty Ltd, a company retained by a consortium of insurers.

Mr Keith Spanswick	-	Forensic scientist with Forensic Services Australia Pty Ltd, a company retained by Suncorp Insurance.
Mr Martin Denham	-	Electrical fire investigator consulting with Mr Nystrom.

1. Mr Nystrom arrived on the morning after the fire and examined the scene over the subsequent four days. During this time, he sought the assistance of Mr Denham who had particular experience in electrical fire investigations. Mr Nystrom had established during an interview with the appellant that the only electrical items which remain switched on were a refrigerator, a coffee maker and a small lamp. Mr Denham who investigated the scene over two days found no evidence of any electrical fault causing the fire. Electrical faults did occur as a consequence of the fire progressing through the building but there was no evidence of electricity being associated with the cause of the fire.

2. The experts agreed that the seat of the fire was located in the paint section area which was located in the rear section of the hardware store. The experts agreed that the fire started above floor level and below the ceiling. Whilst the experts established with reasonable certainty where the fire started, they could not offer any opinion as to how it started.

3. The appellant did not give evidence at trial but the details of his four recorded interviews with different investigators were put in evidence. Mr Nystrom interviewed the appellant at 3.00 pm on the afternoon of 2 April 2001 and asked him for his best guess as to how the fire happened. The appellant responded:-

   “Well, I still feel that somebody’s been in here two weekends in a

   row.

   Through the manhole? – Through the manhole, have to be.

   How they get in the building? – Well, the manhole [indistinct] to the toilet. When I left on Sunday this week the lights were on in the toilet and I just happened to look and the manhole was in place and I just thought the bloke from the mini-mart was – was in the toilet but –

   [Indistinct] toilets left unlocked? – No, they should be locked. Everybody’s got a key to the toilet. But whoever [indistinct] there was a firey here – when was it? When was the fire Sunday – Monday, and I told him about that. He went around there and the lights were still in the ‘on’ position and the door was open then but all the other doors closed.”[12]

   Also during this interview the appellant said:-

   “I just felt that somebody has been coming down through there. They could have been coming down six bloody months and taken bits and pieces, for all I know”[13]

   [12] Transcript 250/20-40

   [13] Transcript 248/5

4. The appellant made a similar suggestion to Mr Tipping on the same day. He said, “[H]e thought there was a way somebody could gain access to his shop through a manhole in the male toilets at the rear of the shopping centre and along the common ceiling space to the manhole which is in his shop ceiling”.[14] These suggestions that there was a means of ingress into the shop caused a focus upon the access to or from the manhole in the hardware store. The appellant said that he “noticed at 8 o’clock on the Monday morning a stepladder positioned standing up below where the manhole would have been within the damaged shop”.[15]

   [14] Transcript 31/48-55

   [15] Transcript 29/40

5. Relevant to these remarks is the fact that on the 26 March 2001, the Monday preceding the fire the appellant made a complaint to police that there had been an unlawful entry into the hardware premises. On that day, he was interviewed by police officer Glindon. The appellant had said then he thought he had been broken into on the previous Sunday night but he was not sure if he did.[16]

   [16] Transcript 34/10

6. The only indication of such a break-in was the fact that a lock on a glass cabinet was in a different position. The cabinet contained old bank notes and collector’s coins.[17] There was no sign of forced entry but the appellant suggested that the intruder might have entered through a manhole and left by the back door. The appellant suggested to Police Officer Glindon that a person could “get up into the ceiling through the manhole in the toilet. … The ceiling is open and not blocked off.”[18] The police officers went to the toilets but did not observe any marks around the manhole which appeared to them to be in its correct position. Police Officer Glindon expressed his opinion that he did not think anyone tried to get in[19] and the appellant decided not to have a complaint recorded.

   [17] Transcript 34/18

   [18] Transcript 34/55-60

   [19] Transcript 36/5

7. The space between the internal ceilings and roof of the shopping complex was large enough for a person to move through it. Mr Hiette, an air-conditioning technician, had previously used the space to service various items of plant. He had usually entered the ceiling space through a manhole in the fruit shop but had also used the one in the appellant’s shop. In evidence, Mr Hiette described the space and changes that had occurred when new extensions were built. He stated that movement in the ceiling area “may be possible, however very cramped”.[20] The distance to the toilet manhole from the hardware store was approximately 20 metres.

   [20] Transcript 61/55

8. The appellant in his interview with Mr Nystrom mentioned a ladder being situated below the shop’s manhole when he came to inspect the scene on the morning after the fire, but said that it was not there when he left the shop the previous day.[21] Mr Nystrom in his examination of the scene located a ladder on its side on the floor[22] at the rear of the shop on the eastern side.[23] He took a photo of the ladder in that position[24] early in his inspection on 2 April. A photo taken by Mr Denham on 3 April[25] depicts the ladder in the same position but lying on its side. Related to this issue, Mr Nystrom’s examination of the manhole cover in the toilet indicated that it was in place at the time of the fire.[26]

   [21] Transcript 246/40

   [22] Transcript 91/40

   [23] Transcript 91/10

   [24] Exhibit 13

   [25] Exhibit 11

   [26] Transcript 93/50

9. Mr Spanswick carried out an examination of the scene on 4 April 2001 and at that time noted the ladder was standing erect. He noted that the floor underneath the feet of the ladder was clean, which indicated to him that it had not been moved since the fire. He had however been told by Mr Janz that it had in fact been moved, and the fire damage to the ladder was consistent with the ladder actually lying down at the time of the fire.[27]

   [27] Transcript 116/15

10. The appellant, in his interview with Sergeant Campbell on 12 April 2001, again spoke of the ladder. The ladder in question was not a sale item in the hardware store but was for the appellant’s own use. This ladder was normally located out in the shop’s kitchen. He described this ladder as being made of steel, while the ladders which were available for sale were made of aluminium.[28] He referred to taking a photograph with the ladder in a standing position but then at a later time noticing that it had been “knocked over”.[29]

    [28] Transcript 321/40

    [29] Transcript 322/1

    The issues:

11. To convict the appellant, it was necessary for the jury to be satisfied beyond reasonable doubt that the fire was deliberately lit by the appellant. Thus it was incumbent on the prosecution firstly to exclude the prospect that the fire started accidentally.

12. That it might have started accidentally was canvassed on the following three bases: by an electrical fault occurring; by electrical wires being chewed through by a rodent; by a discarded cigarette butt burning. Each of these bases was canvassed with the expert investigators.

    Accidental or deliberate?

13. The consensus was that there was no evidence of any electrical arcing being the cause of the fire. Some evidence of arcing was found but this was the consequence of the fire itself. Mr Denham examined all the switchboards, electrical equipment, light-fittings and cables. He concluded that the fire did not start in the ceiling and there was no arcing consistent with a rat chewing through a cable.[30] He mentioned also that in the event there was a defective cable, the current protection devices would operate to de-energise the circuit.[31] In examination in chief he was asked:-

    “Is it never the less possible that an electrical fault may have caused

    the fire? – It is possible, however I didn’t find any evidence of that.”

    In cross-examination he was asked:

    “From your point of view with your expertise with looking for an electrical fault, we don’t know what happened? – “Well, I – all I can do is evaluate the evidence and the evidence, as I mentioned before showed the fire did not start in the ceiling, but rather down at the room level.”

    [30] Transcript 85/10

    [31] Transcript 85/50

14. A further suggestion was the prosecution did not exclude the possibility of an air conditioner’s draining fault being the cause of the fire but this suggestion is inconsistent with the experts’ location of the seat of the fire below the ceiling.

15. The prospect of the cause being a discarded cigarette butt was virtually excluded by the appellant’s own statements in interviews to the effect that he removed all cigarette butts from the shop before departing. He placed the butts in an area that had no connection with the seat of the fire.

16. If the jury accepted the experts’ opinion as to the location of the seat of the fire, the prospect of its cause being electricity related, or due to a cigarette butt was left as a mere possibility. The preponderance of expert opinion left it open to the jury to infer that the fire was deliberately lit.

17. If they so concluded, they were instructed, in order to convict, that it was necessary to be satisfied beyond reasonable doubt that the fire was caused by the appellant and not by some unauthorised intruder.

    The appellant or an intruder?

18. On this issue, the prosecution relied on the speed with which the fire developed after the appellant left the store. It was contended that there was no time for any other person to do the deed and to escape via the manhole in the toilet, and that any inference that a person would undertake such an activity at this time of day in the hope that the toilet was not occupied was simply not rational. In summary, the only person who had the opportunity to light the fire was the appellant.

19. The prosecution alleged that the appellant had the motive to do so. His trading had declined because of the advent of the new larger shopping complex in the area, called Annandale Central. He was “determined” to move his business there[32] but he did not have the financial capacity to do so. In this connection, the prosecution pointed to his attempts to sell the business, offering it at reduced prices and the shortfall of $100,000 in the property valuation necessary to secure finance.

    [32] Transcript 279/30 33 Transcript 34/40 34 Exhibit 13

20. As to the question of motive, Mr Henry of counsel for the appellant argued that there was nothing unusual about the appellant expressing a determination to move to the new shopping centre, and to have discussions about a possible sale of the existing business and the raising of additional finance. He argued to infer motive from these facts would be the result of approaching the question with a suspicious, rather than an open mind. He referred to the appellant’s intention to contest the valuation, and the availability of funds from his wife’s superannuation. The appellant was actively pursuing finance on the Friday before the fire. He contended the appellant was unlikely to be doing that if he had planned to cause the fire. He referred also to the high level of stock in the shop and its value being proximate to any insurance payment. He referred to those facts not having the level of persuasiveness that was illustrated in the circumstances of Plomp v The Queen (1963) 110 CLR 234.

21. The prosecution further alleges that the appellant made the complaint on 26 March 2001 about an earlier unlawful entry to his premises to set the scene for a similar complaint to be made after the fire. The prosecution contended that the placing of the ladder in the position under the manhole was part of that plan to divert attention from himself. The prosecution referred to Sergeant Glindon’s inquiry whether any ladder had been moved away from the manhole33 to suggest that the inquiry prompted the ladder to become a new feature in the appellant’s plan.

22. Mr Henry argued that the position of the ladder was not properly proven on the evidence. He contended that this was a threshold matter going to the question of who caused the fire.

23. I reject the suggestion that it was not open to the jury to come to a view about the position of the ladder. In his various statements, the appellant said that ladder was not in the position under the manhole when he left the premises. He said he saw the ladder in that position when he visited the scene the next morning. The photographs34 taken on the next morning confirm that the ladder was in that position. The ladder showed the effects of having been in the fire though there is conflict between experts as to whether the ladder was standing or lying down. This conflict is of no concern, the relevant point being that the ladder was positioned under the manhole rather than in its normal storage location. The evidence of the photographs and the evidence of Mr Nystrom and Mr Spanswick support the appellant’s statement as to the position of the ladder during and immediately after the fire. It was then a matter for the jury whether to take the position of the ladder into account as providing some guidance as to whether the fire was or was not deliberately lit. The learned trial judge instructed the jury in those terms.[35]

    [35] Transcript 210/50

24. The prosecution case, without any reference to the 26 March 2001 complaint or to the ladder, remained a strong one. Once accidental cause was excluded, the fire was started by a person with a very limited opportunity to do so. The fire was detected within minutes of the appellant’s departure from the premises. That limited opportunity would scarcely allow an intruder to enter the premises by the cramped toilet-ceiling route, set the fire and depart the same way. Much less would such conduct be rationally contemplated in mid-afternoon whilst trading continued in the other shops. The same would be said of the alternative scenario of someone remaining undetected in the shop when the appellant closed it only to set fire to it immediately after and then leave by the ceiling-toilet route with all the risks of being detected at the toilet manhole. By contrast, the appellant had ample opportunity to do what was necessary to set the fire without being detected or arousing suspicion.

25. The evidence of motive, whilst not conclusive, was nonetheless strong. The appellant was concerned about the impact the new shopping centre would have on his business. He joined with the other traders to seek a reduction in rent. He had been seeking to sell the business with the price being reduced over time from $155,000 to $125,000. The business had a high level of debt and with reduced trade was unlikely to survive. The appellant explored the prospect of going into partnership in order to make the move to Annandale Central but that had not been successful. The differential in the valuation made and that necessary to secure finance, was $100,000. Though the appellant had sought a revaluation, success in achieving such a turn around was not assured. These were all proper matters to which the jury could have regard. But it was clearly open for them to conclude that the appellant would be financially advantaged by receiving the proceeds of his insurance policy and being able to move to new premises without the encumbrance of the existing shop.

    Ground 1 – Unsafe and unsatisfactory verdict

26. The learned trial judge instructed the jury in the usual terms about the nature of circumstantial evidence.[36] Included in his Honour’s remarks was the direction that it was “necessary that guilt should not only be a rational inference, but also that it should be the only rational inference that could be drawn from all the circumstances of the case.”[37]

    [36] Transcript 181/30-182/50

    [37] Transcript 182/10

27. The initial ground of appeal is whether the verdict was unsafe and unsatisfactory. The guiding principle is set out in M v The Queen (1994) 181 CLR 487 and reaffirmed in Jones v The Queen (1997) 191 CLR 439. At p 493 the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ states:-

    “Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (36). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (37).”

1. Apart from the issue raised in the second ground of appeal, there was no challenge to the terms of his Honour’s summing up. The question of whether the verdict was unsafe and unsatisfactory in this instance depends upon whether there is sufficient evidence, particularly as to circumstances of opportunity and motive, upon which the conclusion of guilt could be based. Upon the evidence of opportunity and motive discussed above, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

   Ground 2 – Failure to direct on intermediate findings of fact

2. By the second ground of appeal, the appellant contends that the learned trial judge’s direction did not go far enough, arguing that the jury ought to have been warned of the need to be satisfied beyond reasonable doubt of two intermediate facts before using them to infer guilt. Those facts were –

(a)	that the appellant’s account to the police on 26 March 2001 was false;
(b)	that the ladder seen under where the manhole had been in the store the day after the fire was located in that position at the time of the fire.

1. In support of this submission counsel for the appellant referred to Shepherd v The Queen (1990) 170 CLR 573 and argued that in the circumstances of this case a special direction ought to have been given. He did so on the basis that evidence of the appellant’s account to the police with the prior unlawful entry was incapable of assisting in the proof of guilt unless it were a knowingly false account. Similarly, the appellant’s statement about the location of the ladder was incapable of advancing the prosecution case unless the jury was satisfied that it was so located at the time of the fire.

2. In Shepherd Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) said at p 585:-

   “The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

   Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.”[38]

   [38] Shepherd v The Queen (1990) 170 CLR at 585

3. The question then for this Court is whether the two matters identified by counsel for the appellant are indispensable intermediate facts such as to require specific identification coupled with the special instruction.

4. In my view, neither of the suggested facts had the character of an indispensable link. These matters were relevant to the question of opportunity – favourable to the appellant if the jury accepted the truthfulness of his statements. If the statements were not accepted, then the jury were entitled to ignore them or use them as going the question of credit. It was the appellant himself who made the prior complaint to police, and who raised the position of the ladder in interviews with fire investigators. The prosecution’s use of the earlier complaint to the police and the location of the ladder was simply to suggest that the applicant had so acted in a misguided attempt to deflect suspicion from himself. The prosecution did not seek to prove whether the ladder was there or not. These matters were simply circumstances for the jury to consider and weigh, and then accept or reject, in coming to a conclusion about which they had to be satisfied.

5. The task for the jury on the ultimate question was to choose between competing hypotheses – whether the fire was accidental or deliberate and if deliberate, whether by the hand of the appellant or an intruder. There was ample evidence upon which they could be satisfied beyond reasonable doubt as to the guilt of the appellant. In my view, the verdict should not be disturbed.

6. I would dismiss the appeal.