R v Luckins
[2003] VSCA 74
•5 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 65 of 2001
| THE QUEEN |
| v. |
| STEPHEN RICHARD LUCKINS |
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JUDGES: | CHARLES, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 June 2003 | |
DATE OF JUDGMENT: | 5 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 74 | |
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Criminal law – Conviction – Arson – Circumstantial case – No admissions by accused – Whether prosecution evidence sufficient for conviction – Whether conviction unsafe or unsatisfactory – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R.E. Carlin | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person |
CHARLES, J.A.:
At about 10.30 p.m. on Saturday 3 May 1997 a fire broke out in the upper storey of a shop and premises at 209-211 Glenhuntly Road, Elsternwick. Fortunately the fire brigade attended the scene very quickly, and the fire was put out before it had spread to the whole of the premises. An examination of unburnt offices and the store rooms was therefore able to be made and in several of them, accelerant in the form of kerosene, petrol and diesel had been spread, and wicks, consisting of strips of bed sheets, had been laid from the hall into the rooms, each terminating with a plastic jerry can half full of accelerant. It is plain that the fire was set deliberately, and that whoever set the fire intended to demolish the building, in the process destroying all evidence of the means by which it had been ignited.
The premises had been occupied since the late 1980’s by a business known as Audio Vision, which imported, wholesaled and retailed laser video discs, surround sound systems and other electrical equipment. The owner of the business was a company controlled by Stephen Richard Luckins. The owner of the premises was D.M. Mendes Nominees Pty Ltd.
These events gave rise to Luckins being charged with the offence of arson, and on 12 February 2001 in the County Court in Melbourne he pleaded not guilty to a presentment alleging this offence. After a trial lasting a week, in which Luckins did not give evidence or call evidence in his defence, the jury on 19 February 2001 found him guilty of arson. Luckins had no prior convictions. After a plea, on 15 March 2001 the trial judge sentenced Luckins to be imprisoned for 4½ years with a non-parole period of 3 years. Luckins now seeks leave to appeal against conviction on two grounds, that the jury verdict is unsafe and unsatisfactory and that the judge should have upheld the no-case submission made by the applicant’s counsel.
The prosecution case was as follows. Caroline Gaudry was at the time the applicant’s partner. Her evidence was that she and the applicant shared a house in East Bentleigh, some ten to fifteen minutes’ drive from the premises of Audio Vision.
According to Gaudry the applicant that day had worked at the shop, from 10 a.m. “to about one-ish”. The applicant then went out with Gaudry during the afternoon before returning to the shop “for a couple of hours”. He had bought quite a lot of paint and wanted to go back and commence some painting at the shop and he also wanted to back-up the computers. Her evidence was that he often attended the shop after hours on the weekend to back-up the computers. “At about sevenish” the applicant returned home, before the family (the applicant, Gaudry and the applicant’s 11-year-old son) went out for dinner at the Silky Apple Chinese restaurant in Armadale, about 20 minutes’ driving time from their home. She said they returned home at about 9 to 9.30 p.m. and after watching television Gaudry went to bed and read until somewhere between 10 and 10.30. The applicant joined her a little while later and went to sleep very quickly. Gaudry said they received a telephone call from the police at about 11.30 advising that there had been a fire at the shop, and both dressed and went to the shop and found fire engines there.
Evidence was given by two employees of Audio Vision, George Andopoulos and George Viscas. Andopoulos worked full shop hours, including on Saturdays from 10 a.m. to 1 p.m. He had a key which opened the back door to the premises and used this to enter the shop in the morning and to leave in the evening. Inside was a security pad for an alarm system into which he would punch a code. There was a delay of about 30 seconds before the alarm would activate. Andopoulos said that at around Easter 1997 he on one occasion entered the wrong code, which did not cause any audible alarm but ten minutes later the police attended the premises. Andopoulos said he worked on the day of the fire, arriving at work just before 10 a.m. to open the shop. He entered through the back door and disengaged the security lock. The applicant that morning arrived shortly after Andopoulos, and after the morning’s work the applicant and Andopoulos left together at about 1 p.m. Andopoulos said they left by the back door and the applicant operated the alarm and locked the door. Andopoulos said he heard the beep which set the alarm. Both men then left by car. Viscas said he did not work on the day of the fire. His evidence included that on the first occasion Viscas opened the shop on his own, in 1994, he entered the wrong number and this set off an audible alarm which was stopped when Viscas entered the correct code. His evidence was that failing to deactivate the alarm did not prevent you from unlocking the doors and entering the premises. However, when the correct code was entered the alarm did not beep. Viscas said that early in 1997, perhaps in February, there had been a period following a changeover of the security codes when the alarm system was not being activated.
Evidence was given by Stephen Ross Gidley, the information technology manager for ADT Security, the company responsible for the security system at the Audio Vision premises at the time of the fire. Gidley said that at that time Audio Vision had “passive infra-red” and reed switch detectors installed. The former detect changes in heat and would trigger the alarm when the heat of a person passed the sensor. The reed switch detects breaks in current, for example when an alarmed door or window is opened. Gidley produced an event report generated by the ADT security system indicating all events in respect of the alarm system between 28 April and 4 May 1997. In his evidence, Gidley explained various entries on the record for the period from 28 April to 3 May. He said that there were a number of system entries throughout the period showing schedule violations and “duress alarms” (which occur when someone has punched the wrong code into the alarm) and some unexplained (though not inexplicable) records. Gidley said that the alarm records showed that on 3 May the premises were opened and the alarm disarmed normally at 10 a.m. There was then a failure to arm the alarm at or near the scheduled time (1 p.m.) and it in fact remained disarmed all afternoon. At 5.04 p.m. there was either an automatic polling of the location which found the alarm not set or a fresh disarming of the alarms. Consequently at 5.12 p.m. the security system operator telephoned the applicant and made contact, and extended the scheduled open time. At 6.46 p.m. the shop was closed and the alarm armed. The next records were at 10.33 and 10.34 p.m. when burglar alarms were set off in three locations identified at the premises as “PIR store room”, “PIR office”, and “Stephen’s office”. “PIR” indicated “passive infra-red”, detecting changes in heat. From 10.35 p.m. the system was no longer responding. Subsequent records showed that the police were called at 10.42 p.m. and that by 11.42 p.m. the service had still been unable to contact the applicant. Gidley said that someone could leave the premises without it being recorded only if there was an insecure zone (for example, an unclosed roller door) and a panel was not armed.
Evidence of the fire was given by two firefighters, Peter John Miller and John Maxwell Garvin. Miller said that on 3 May he responded to a call to the Audio Vision premises and that he and his partner were forced to break into the premises being unable to gain access by the back door. They then entered the store room which was fairly well ablaze, extinguished that fire and then moved to the centre of the building. They extinguished further spot fires and then proceeded upstairs where there were further flames.
Evidence was given by Garvin that he arrived at Audio Vision’s premises before 11 p.m. Garvin instructed a newly-arrived crew to break and enter through the glass doors at the front, which were locked. There were no broken window panes. Garvin said that there were no signs of forced entry to the premises.
Expert evidence was given by Dr Olga Korytsky, a forensic officer and fire investigator. She attended Audio Vision’s premises on 4 May and observed the signs of firefighter forced entry. The firefighters had found in rooms in the premises drums of liquid with strips of cloth coming from their mouths and in another room two candles which had burned low beside newspaper. Dr Korytsky tested the newspaper beside the candles and believed that it had been treated with kerosene. Protruding from the mouth of a container in another room was a long narrow strip of cloth similar to bed sheet material and the last part of which was burnt. Dr Korytsky gave her opinion that an explanation for the failure of the whole containers to burn was that the fire had been extinguished by fire officers. Dr Korytsky found containers of flammable liquid in four locations including a melted container in the hallway. She identified the stairwell which had the worst burning as the first site of ignition. She found nothing such as the remains of a wick or appliance to show how this fire had ignited. In cross-examination Dr Korytsky said that the stairwell fire had probably been caused by the ignition of splashed accelerant. She said that the fire had burned for less than half an hour. She considered the function of the candles as a time-delay ignition device and said that the set-up she found would have delayed ignition by minutes, but not hours. Dr Korytsky also said that where the fire had been ignited from splashed accelerant, such as on the stairway, it was her view that it would have been ignited by direct application of a flame, such as a match, cigarette lighter or burning object; however she said that a time-delay device such as a candle was also a possibility. Dr Korytsky said that there were no signs of forced entry to the building other than the actions of the fire brigade. She also described the external condition of the building, the front glass door of the building, the timber door and steel security door of the building known as 211, and the heavily barred steel door of 209.
Laurence Roy Bevan, a chartered loss adjuster, gave evidence that he had been appointed by Mercantile Mutual Insurance to assess the damage caused by the fire. Bevan said that he was advised that the property was subject to contents coverage for $455,000 and for loss of profits or business interruption for up to $250,000. In due course a claim was lodged for a total contents value of $79,000. The claim had not been paid.
Detective Senior Constable Pennington conducted a tape recorded interview with the applicant on 15 September 1997, the tapes of which were tendered. During the interview the applicant denied setting fire to the business and suggested that there were persons who hated him. He described his financial affairs and agreed that he would have been financially better off if the fire had burnt the business to the ground. Among his debts were a sum in excess of $100,000 owed to a business called Columbia Tri-Star, $50,000 owed to previous suppliers, and $300,000 owed to the National Australia Bank. The applicant accepted that he left the premises on Saturday 3 May at 6.45 p.m. in the evening, and said that he had locked all three external doors when he left the building as well as setting the alarm. The applicant agreed that he could not explain how anyone could have entered the secure premises after he left the business that evening.
The prosecution argued, both at trial and in this Court, that this was a case where there could be no doubt that the fire had been deliberately lit. The question for the jury was thus whether they could be satisfied beyond reasonable doubt that the applicant was the person responsible, and it was submitted that it was open to the jury so to find. The applicant had never admitted responsibility for the burning of Audio Vision’s premises and the case was entirely circumstantial. The evidence which was said to implicate him was first that of motive. Reliance was placed on the applicant’s substantial debts, the fact that his business was struggling and his admission that he would have been better off if the fire had consumed the premises. Next it was submitted that on all the evidence the applicant was plainly the last person in the premises before the fire. The applicant had stated in his record of interview that he went to the premises on the afternoon of Saturday 3 May and left at about 6.45 p.m. At this time the equipment used to start the fire had not been set up, otherwise, as he admitted, he would have noticed it. When he left he secured and alarmed the premises, which was confirmed by the alarm system event report, which also indicated that no person had entered the premises between 6.46 p.m. and the time of the fire at 10.33 p.m. The alarm system for the premises was not disarmed, nor was the burglar alarm triggered in the meantime, and there was no sign of forced entry by any outside person other than the fire brigade. Accordingly not only was the applicant the last person known to have been on the premises, but the evidence suggested that no other person would have had the opportunity of entering them. Next it was submitted that the perpetrator had obviously employed time-delay mechanisms for the purpose of setting but delaying the onset of the fire. There was evidence that candles and lengthy wicks had been used as time-delay mechanisms. There was evidence that the probable starting point of the fire was severely damaged and that, had candles been used, they may have been consumed by the fire, as Dr Korytsky had said.
The applicant, who represented himself in this Court, vigorously maintained that he was innocent of the offence of which he had been convicted. He pointed to the fact that nearly four years had passed between the date of the fire and his trial, and that witnesses at the trial were struggling to recount events which had occurred so long beforehand. He submitted that the alarm system for the premises was clearly shown during the trial not to have operated correctly, although the prosecution relied on the fact that it had operated correctly. He relied on the statement of Andopoulos that when he left the premises with the applicant shortly after 1 p.m. that day, the alarm was set and that he had heard the alarm give a single beep which indicated that it had been set. Then he pointed to the fact that the Event Record showed that the alarm system had not been armed throughout the afternoon before the applicant arrived at about 5 p.m. Next he relied on the evidence of Dr Korytsky who had said that the timing devices on the premises would have allowed a delay of not more than 20 to 30 minutes. The evidence of the expert on fires, the applicant submitted, therefore could not place him anywhere near the premises when the fire was set. He submitted that death threats had been made to him and that his defence had been damaged by reason of the fact that he had been unable to call a Ms Robinson to give evidence of these threats to the court. He argued that the evidence that someone had threatened his life had been excluded from the trial. The applicant was quite unable to explain the mystery of how the fire came to be set and lit, but said he had no knowledge of fires and had never had kerosene in his car. He put it that the jury were dealing with a very complex and boring case, that they would have struggled with the complexity of it, and the alarm system, and that the decision showed that they simply wanted to achieve a result and leave.
In his reasons for sentence the trial judge referred to the promptness with which the fire brigade had attended the scene and said that its members put out the fire before it spread much beyond the staircase and hall of the premises. His Honour continued –
“This promptitude enabled examination of unburnt offices and the store rooms to be made. In several of them accelerant in the form of kerosene, petrol and diesel had been spread and wicks, consisting of strips of bed sheets, had been laid from the hall into the rooms each terminating with a plastic jerry can half full of accelerant.
Had a fire been permitted to effectuate these wicks a [mighty] conflagration would have occurred wholly demolishing the building and certainly endangering neighbouring buildings and putting firemen and perhaps others at risk of injury or worse.
I am satisfied that whoever set this fire intended the first of these consequences and was prepared to risk the others. I am also wholly satisfied that the prisoner was that person and that the jury was right to convict him.
The fire was started in the store room beside the staircase by means of two candles set beside a plastic ice cream container full of kerosene. Dr Korytsky’s evidence to the contrary is, in my opinion, ill-considered and wrong. Had the fire not been delayed by lack of oxygen or had it been observed later than it was or had the fire brigade been less prompt the ensuing conflagration would have destroyed all evidence of its means of ignition and the alibi created by the prisoner would have been difficult to ignore.”
In a lengthy and most helpful report to the Court, the trial judge explained the reasons for his satisfaction that the applicant was responsible for setting fire to the premises. His Honour referred to nine clues and his conclusions based upon those clues, as follows –
“The clues are:-
1.The lack of any evidence of burning or scorching of the newspaper on top of the candles in Room 3
2.The evidence of the disturbance of the scene in the course of fighting the fire
3.The melted green ice cream container beside the candles
4.The melted jerry can at the top of the stairs
6.The use of wicks leading to the jerry cans in other rooms
7.The need of fire for oxygen
8.The speed of response of the fire brigade
9.The existence of a seven eleven and a McDonalds store on the other side of the road.”
His Honour’s conclusions from consideration of these clues were as follows:
“This was a failed fire. It is plain from the lavish use of accelerant and the vigour of the fire in the staircase that the intention was to create an inferno in which all the combustible clues would have been destroyed or rendered meaningless, reduced to the low boiling point elements of accelerant, blobs of plastic and wax. The fire failed because of clues 9, 7 and 8.
From time immemorial burning candles have been used to measure time. They burn down: the flame gradually descends in space. Clues 1 2 3 and 4 strongly suggest that these candles were used in the ordinary way, not as Dr Korytsky suggests. Clue 1 exists in this form because her theory of using the candles to burn paper placed on top of them was an afterthought, something not tested by her. Clue 2 explains how the paper and matting came to be found on top of the candles.
The trigger for the fire was constituted by the two candles set beside an ice cream container holding accelerant of such quantity and so positioned that at some point of its descent the flame met the right mixture of oxygen and fumes to ignite the vapour. I have been forbidden to carry out the experiments necessary to determine the length of the fuse created by different positions of container and candles, but I have no doubt the arsonist did so.
The vapour ignited and the flame was fed from the container, which melted after the wicks caught fire. I am unable to say whether all wicks led from Room 3, or whether an initial wick from that room led to the container at the head of the stairs, from which other wicks led to the various rooms. The evidence has been destroyed by the actions of the firefighters.
Since neither Counsel argued his case upon the basis I have posited, and my conclusions were formed too late to invite them to do so, I was careful to avoid putting my proposed solution to the jury in my charge. But I acted upon it in my sentence.
Had the arsonist’s intention been effectuated this would have been an inexplicable fire. Strong suspicion would have existed that it had been set by someone and that the applicant was responsible, but in the presence of the alarm system and the absence of other evidence there would have been insufficient material upon which to charge him. Indeed, I assume that the applicant’s argument will be that the jury’s verdict must rest upon motive (in my opinion, a barely sufficient or irrational one having regard to the nature of his insurance) and speculation as to the use of some other fuse.
In my opinion, the jury may have reached its conclusion upon a rejection of the possibility that the alarm system failed to register an entrance to the premises by some unknown person after the accused left them (in which case sole opportunity resided in the applicant) or upon a line of reasoning similar to my own.
In the former supposition it may become necessary for the court to consider whether the rejection of the possibility of failure of the alarm system was reasonably open to the jury. In that regard the jury may have rejected as unreasonable the hypothesis that some other person gained entry to the premises, disarmed the alarm system in such a way as to make it appear to be operating whilst not in fact registering the invader’s presence, set one inefficient timing device and either set another efficient one or inexplicably decided to set the fire alight with a match or other immediately applied flame, and then departed, restoring the alarm to useful operation and re-locking the premises. A wholly coincidental failure of the alarm appears to me to be outside the realm of reason.
In the latter supposition it may become necessary for the court to consider whether my solution of the apparent mystery is founded upon permissible deduction or mere speculation.”
There was, I think, no evidence before the court to establish that the alarm system was not operating correctly, in contrast to evidence of occasional mistakes being made by those who used the system. The thrust of Gidley’s evidence was that there was nothing to suggest that the alarm system was not functioning properly throughout the relevant period. Andopoulos said that when he and the applicant left the premises at 1.05 p.m. on 3 May, the applicant punched the alarm and he heard the beep which sets the alarm. But later in his evidence Andopoulos said that he was not sure what happened when the wrong code was put in. The fact that death threats had been made some considerable time before to the applicant was in evidence, since the matter was discussed in the record of interview with Senior Constable Pennington, and this evidence was not in fact excluded from the trial. As to the evidence of Dr Korytsky, the explanation proposed by the trial judge as to how the fire was set and started seems to me to be clearly correct and the jury would have been entitled to reject her evidence upon similar reasoning.
There were, on the evidence, only three doors permitting entry to the premises. The evidence of various witnesses (the applicant himself, the firefighters and Dr Korytsky) was that all were securely locked, and showed no sign of having been forced before the arrival of the firefighters. The applicant had left the premises at 6.46 p.m. having armed the alarm system, an action also established by the event report. The premises and the applicant’s business were insured, the business was
struggling, and the applicant certainly had a motive, even if an irrational one, for arson having regard to the nature of the insurance. The applicant’s alternative explanation for the events of the evening of 3 May required that some other person, motivated by some unexplained animus against the applicant, with a considerable expertise both in arson and the picking of locks, had gained entry to the premises after the time the applicant left at 6.46 and before 10 p.m. and disarmed the alarm system in such a way as to make it appear to be operating, or had entered during that period when, coincidentally, the alarm system failed to operate.
In my view it was reasonably open to the jury on the evidence to reject this alternative explanation as wholly unreasonable. Similarly it seems to me it was reasonably open to the jury on the evidence to reject the possibility that the alarm system had failed to register an entrance to the premises by an unknown person after the applicant left them, having regard also to the evidence of the securing of the premises and their impregnably locked state when the firefighters arrived. I would also take the view that the explanation proffered by the judge may well have occurred to members of the jury and is founded not upon speculation but upon permissible deduction from all the evidence.
In my judgment neither of the grounds of the application is made good and it should accordingly be dismissed.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
I agree.
CHARLES, J.A.:
The order of the Court is that the application for leave to appeal is dismissed.
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