R v Michael Ross Penney No. SCCRM 96/374 Judgment No. 6071 Number of Pages 17 Criminal Law Evidence

[1997] SASC 6071

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE, CJ, PERRY and DUGGAN JJ

Criminal law - evidence - appeal against conviction - appellant convicted of the attempted murder of his wife by setting fire to inflammable material in the boot of the vehicle she was driving - prosecution case based on circumstantial evidence. Argued that expert evidence called by the defence of itself gave rise to a reasonable possibility that the fire was accidental and that the appellant was entitled thereby to an acquittal. Held that the effect of the submission was to isolate the expert evidence from the evidence derived from other sources - the evidence of the opinions of the experts had to be considered along with the remainder of the evidence which, in its combined effect, supported the verdict of the jury.

Criminal law - jurisdiction, practice and procedure - summing up - held that there was no substance in the claim by the appellant that the jury were misdirected by being told to consider whether the requisite intention had to be proved before considering whether the appellant deliberately set fire to the material in the vehicle - the summing-up listed the elements of the offence but did not stipulate any order for their consideration. Held further that the trial judge instructed the jury adequtely on the distinction between motive and intention. Wilson v The Queen (1970) 123 CLR 334 at 337, discussed.

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - conduct of trial judge - argued that the conduct of the trial judge, particularly interventions in the course of evidence, deprived the appellant of a fair trial.CHW Held that the trial judge's interventions were not such as to give the appearance that the judge had aligned himself with the prosecution case, nor did they prevent counsel from putting the defence or operate unfairly against the appellant's case in any other way. R v Mawson [1967] VR 205 at 207; R v Lars and Others (1994) 73 A Crim R 91 at 126; R v Davies [1984] 3 NSWLR 572 at 575, discussed.

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - unreasonable or insupportable verdict - held that the verdict of the jury was not unsafe or unsatisfactory. M v The Queen (1994) 181 CLR 487 at 493, discussed.

ADELAIDE, 18 February 1997 (hearing), 21 March 1997 (decision)

#DATE 21:3:1997

#ADD 2:4:1997

Appellant Michael Ross Penney:

Counsel: Mr K Borick

Solicitors: Scales & Partners

Respondent R:

Counsel: Mr P Rofe QC

Solicitors: DPP (SA)

Appeal dismissed.

DUGGAN J

1. The appellant was found guilty by a jury of attempting to murder his wife and now appeals against that conviction. The case against the appellant was based upon circumstantial evidence. It was argued on appeal that the verdict was unsafe and unsatisfactory; that the learned trial judge misdirected the jury on various matters of law and that the appellant was deprived of a fair trial by reason of alleged bias on the part of the trial judge.

2. The charge of attempted murder and an alternative charge of endangering life arose out of events which took place on Monday 30th October 1995 at Balhannah. At that time the appellant and his wife were living at Balhannah with their two children. The prosecution alleged that the appellant attempted to kill his wife by setting fire to inflammable material in the boot of a vehicle as she was about to drive off. The prosecution invited the jury to infer from the proved circumstances that he had placed a container of petrol in the boot of the vehicle on a previous occasion along with some rags which had been impregnated with petrol. It was also claimed that the appellant removed the petrol cap and placed a rag in the vehicle which went from the boot into the petrol tank. Items of circumstantial evidence relied upon by the prosecution included the movements of the appellant at relevant times, the material found in the boot after the unsuccessful attempt and evidence of the nature of the relationship between the appellant and his wife.

3. The appellant, for his part, denied that he deliberately started a fire in the boot of the vehicle. Apart from challenging the appropriateness of drawing the inferences from the evidence for which the prosecution argued, the defence submitted that there was at least a reasonable possibility that the fire commenced accidentally. Particular reliance was placed on the evidence of experts who agreed that one of the possible causes for the fire was a spark from the boot light switch of the vehicle which might have ignited petrol vapour in the boot.

4. In order to deal with the grounds of appeal it is necessary to refer in more detail to the evidence at the trial and some of the arguments advanced in relation to it. The appellant and his wife had been experiencing problems with their marriage for some time prior to the date of the alleged offence and the prospect of divorce was raised between them in conversation on the morning of the incident. The appellant had left home on a number of occasions in 1994 and 1995 because of the discord. On the last occasion he returned home in late September 1995 after spending a number of weeks away.

5. The appellant and Mrs Penney owned two vehicles, a Magna and an early model Torana. The Torana was used as a second vehicle. The appellant said in evidence that, generally speaking, his wife drove the Magna and he drove the Torana. However it is clear that each of them drove both vehicles from time to time.

6. On Monday 30th October 1995 Mrs Penney planned to drive to the school at which she was teaching. She had intended going in the Magna, but while they were getting ready for work the appellant said that he would like to take the Magna because he wanted to get the indicators on the vehicle checked. His wife agreed and they then drove separately to Balhannah so that the appellant could obtain some money from an automatic teller. After this transaction was completed the appellant gave his wife the money and they drove off. Mrs Penney was the sole occupant of the Torana and one of their children, Lachlan, who was about five, was in the Magna with the appellant.

7. Mrs Penney drove off towards Littlehampton. The appellant's place of work was in another direction. However while Mrs Penney was driving along Junction Road, a reasonably quiet thoroughfare, she became aware of the Magna following her vehicle. The appellant flashed the headlights of the Magna and Mrs Penney pulled over onto the side of the road. The appellant then drove past her, came back and stopped his vehicle behind the Torana and facing in the opposite direction. Mrs Penney said Lachlan was in the front seat of the Magna. The appellant then told his wife that he had left his briefcase in the boot of the Torana and she heard the boot being opened. She said that her husband was at the boot for about 30 seconds and he then signalled her to drive off.

8. Shortly after she had recommenced her journey another motorist, Mr Ryles, who was travelling behind her, noticed smoke coming from the back of the Torana and then observed that a rag hanging out of the petrol tank was on fire. Mr Ryles drove past the Torana and signalled to Mrs Penney to stop. She did so and evidence was led that it would have taken a car travelling at 60 kph approximately one minute and forty five seconds to travel from where she left her husband to the location at which she stopped.

9. Mr Ryles extinguished the fire with a fire extinguisher and the police were called. They carried out some preliminary investigations and, later in the day, spoke to the appellant at the school at which he was teaching. After Mr Ryles put out the fire he noticed that there was no petrol cap at the mouth of the fuel filler pipe which is situated centrally and just below the edge of the boot lid. He saw a rag hanging out of the filler pipe to a distance of about ten inches. He said he had seen this section of the rag alight.

10. The police examined the boot and noticed a large plastic jerry can which contained approximately 20 litres of unleaded petrol. There was also a one litre plastic methylated spirits container which was approximately one quarter full of liquid and several open tins, one of which contained a small quantity of methylated spirits. Floating in the methylated spirits was a broken match. Part of the match head had been burnt. There was also a green plastic container which was partially melted. A rag inside the container smelt strongly of petrol and that rag, along with some other wet rags in the boot, were found to contain residues of petrol.

11. I have already mentioned that the prosecution placed some reliance on evidence of the relationship between the appellant and his wife. There was evidence of matrimonial discord and the parties seemed to be moving towards a divorce. It was also claimed by the prosecution that the appellant had a strong attachment to his children and there was a possibility that he may have lost custody of them if he and his wife were divorced. He was proud of the matrimonial home, the building of which he had organised. His wife's share of the house would pass to him in the event of her death. The appellant also stood to gain over $200,000 from insurance if his wife died, although it was not suggested that the insurance had been taken out with this motive in mind.

12. As Mr Borick, for the appellant, pointed out there are many families in a similar position and it must be acknowledged that this evidence does not take the matter very far by itself. Mr Rofe QC, the Director of Public Prosecutions, conceded as much, but said that these considerations at least distinguished the circumstances from a happy family relationship.

13. But the main focus of the Crown case was on the events which took place on the day of the incident and over the few days leading up to it. According to the prosecution the appellant's statement to his wife about the indicators on the Magna was no more than a ploy to get her to drive the Torana. The appellant gave evidence that on the preceding Sunday he was driving the Magna and the indicators did not seem to be working as they should be. He said: "I can't recall exactly specifically what drew my attention to it other than it was to do with an intermittent malfunction with, if you like, where it seemed to be indicating on the dash, but the tone of the indicator didn't appear to be as it normally is."

14. The appellant appears not to have tested the indicators by observing them outside the car but said that on the morning of the incident when he was driving to the automatic teller someone tooted at him as he was turning and he wondered if the indicator was not working at that time. Mrs Penney gave evidence that she had noticed nothing wrong with the indicators and there was evidence from an expert who said that he had tested the indicators for the police on the 7th November 1995 and found them to be working correctly. A defence expert gave evidence that sometimes indicators can malfunction intermittently.

15. Then the prosecution argued that the appellant used a further ploy to stop his wife in order, so it was said, to start the fire. The prosecution suggested that it was unlikely that the appellant would have left his briefcase in the boot of the Torana which was often damp. The prosecution also pointed to the position in which he placed the Magna behind the Torana at the side of the road. It was argued that this would have assisted in preventing Lachlan from seeing what was happening at the boot of the car. It was pointed out that the fire was well advanced within a short time of the appellant being at the boot of the vehicle.

16. Considerable emphasis was placed on the contents of the boot and the presence of the rag in the fuel filler pipe. The appellant stated that he noticed the petrol cap was missing when he took the Torana to the service station at least a week before the incident. He thought of getting a replacement, but had not done so. He said he put the rag in the filler pipe and ran it into the boot so that the boot lid could hold it in place. He had not mentioned it to his wife and she gave evidence that she had not noticed that the petrol cap was missing.

17. The appellant said in evidence that he purchased the jerry can and filled it with petrol on the Friday before the incident. He said he purchased the fuel for his lawn-mower and forgot that he had left it in the car. The prosecution argued that there were opportunities for him to see it when he was at the boot of the Torana between the time of its purchase and the events on the roadside on the morning of the incident and that, far from forgetting, he left it there because of the alleged intention to kill his wife.

18. According to the appellant he cleaned his lawn-mower on the weekend and this assertion was not in dispute. However he said he used an ice-cream container, some rags obtained from the boot and petrol to do the cleaning and, although he could not remember having done so, he said he may have put them in the boot of the Torana after completing the job. He could not say how the methylated spirits came to be in the boot, although he said that he had used methylated spirits to clean white boards at the school at which he taught. He could offer no explanation as to why the match was in the tin containing methylated spirits.

19. Finally, the prosecution placed some reliance on the evidence of the appellant's interview with the police. It was pointed out that when the appellant was told that someone had attempted to kill his wife he did not at first ask what had happened or how she was, although some time later he did ask what had happened. The appellant explained this by saying that he was totally confused at this stage. The prosecution also relied on the fact that the appellant did not mention getting the rags from the boot when first asked about them.

20. The defence case consisted of a denial by the appellant that he attempted to harm his wife by deliberately setting fire to material in the vehicle. I have already dealt with his explanations for the matters relied upon by the prosecution. In addition to giving evidence himself and calling character witnesses the appellant also called expert witnesses, in particular, Mr Kutek and Mr Gudmann, who gave evidence to support the view that the fire in the boot could have been caused accidentally. Mr Borick placed considerable reliance on this evidence and, because of its relevance to a number of grounds of appeal, I will refer to some aspects of it at this point.

21. The experts called included Dr Kirkbride, a prosecution witness, and Mr Gudmann and Mr Kutek who were defence witnesses. The experts were unable to assign a definite cause for the start of the fire but they were able to suggest some possible causes. Dr Kirkbride gave evidence that if the fire had started outside the boot then it was possible that either a match or an incandescent particle from the muffler was the cause of the ignition. On the assumption that the fire started from within the boot he considered that it could have been initiated by a lighted match, an electrical failure or a spark from the boot light switch.

22. It was Mr Kutek who first raised the possibility of a spark from the boot light switch as being a possible cause of the fire. This switch turns the boot light on or off when the boot lid is raised or lowered. When Mr Kutek inspected the Torana he observed that when the switch was depressed or released it emitted a spark. The switch was not faulty; the spark was simply a characteristic of the operation of this particular type of switch. It was Mr Kutek's evidence that the fire in the boot of the vehicle could have been caused by the ignition of petrol vapour within the boot when the boot lid was either opened or closed. Mr Kutek also gave evidence that certain soot deposits which he observed in the car were consistent with having been caused by the ignition of a flammable mixture of petrol vapour and air forcing the soot through openings in one of the boot panels. According to the witness he would have expected to see different markings if it had been a smouldering fire.

23. The witness was then asked whether the fire could have started without an explosion: "Q. Is it, in your opinion, unlikely that a fire could have been set in the boot without a concussion or explosion of some description?

A. If the rags had had petrol in them for hours or a day before the boot was opened and the ignition source introduced, there would have been almost certainly some sort of whoof, a concussion of some sort, and the most likely consequence to the person introducing the match is that they would suffer some sort of injury, but they would certainly succeed in igniting the contents of the boot, yes."

24. And later: "Q You are aware of the possible suggestion that the match could have been thrown into the methylated spirits in that smaller can and thereby starting a fire?

A Yes, I am.

Q. Could you comment on that possible scenario?

A If the rags with petrol on them had been in the boot before the boot lid was opened, and the boot lid was opened and then the match dropped into that methylated spirits, there would have been a violent ignition of the petrol vapour that was in the boot. If there had been enough air introduced into the boot with the opening of the lid, then the methylated spirits would have been ignited as the match went in. If we had basically a blanket of rich vapour in the boot when the boot lid was opened, the match would have ignited the vapour and then may or may not have carried on burning until it got into the methylated spirits, but it is unlikely that the methylated spirits would have ignited, because of the high concentration of petrol vapour and the dilution of the oxygen in the atmosphere of the boot.

HIS HONOUR

Q Do I understand that the last answer means it really all depends on just what happened to be the concentration of petrol vapour in the boot at that particular time?

A That's correct."

25. Mr Rofe cross-examined the witness on his views and asked him about two situations, the fire originating from either outside or inside the boot. "Q As to the possibilities of one or two ignitions, you both accept them as possibilities?

A Yes.

Q An external ignition travelling to the inside, an internal ignition travelling to the inside? [quaere outside]

A Yes.

Q Or internal and external ignition?

A Yes.

Q They are the possibilities?

A Yes.

Q I understood your evidence to effectively discount as possibilities what may have existed before; namely a fault in the electrical wiring. Is that a fair summary of your evidence?

A That is a fair summary, yes.

Q You looked for things like short circuits and, indeed, the short circuit found by Mr Ziegelmann and Mr Wood?

A Yes.

Q And excluded that as an air conditioning source?

A Yes, I did.

Q So, internally, effectively from your evidence, we are left with ignition by a spark from arcing of the boot light switch or human intervention?

A Yes.

Q And, externally, human intervention, or a less likely possibility of a spark from the exhaust muffler?

A That is correct."

26. Mr Gudmann gave the following answers in examination-in-chief by defence counsel: "Q In your opinion, and based on all the information you were given, and perhaps lack of it, it's impossible to actually limit human intervention as a caution [sic] of this fire, would you agree?

A Yes, certainly.

Q But there are other quite strong possibilities where this fire started without human intervention?

A Yes.

Q Amongst those would be the possibility of a spark from the boot light switch, bearing in mind petrol vapour being present in the boot?

A That's correct.

Q Are there other possibilities that you could refer to?

A Well, the other possibility would be an electrical fault within the system of wiring within the boot space, that being either, for example, a tracking fault, or a component that was a high resistance connection within the boot surface, therefore it was an overheated component which was capable of acting as the ignition source for an appropriate mixture of petrol vapour and air."

27. Mr Gudmann explained that the mixture of petrol vapour and air must be in a "proper proportion" in order to ignite and then flash back to the source from which the vapour arose.

28. The principal proposition which Mr Borick put to the court in relation to the evidence of the expert witnesses was that, of itself, it gave rise to a reasonable possibility that the fire started accidentally. Accordingly, so it was said, the prosecution had failed to prove beyond reasonable doubt that the accused performed the acts which the prosecution relied upon as the actus reus of the offence.

29. This submission seems to proceed on a basic misunderstanding as to the nature of circumstantial evidence and the way in which it is to be approached by a jury. The process of reasoning advanced by the appellant involves isolating the expert evidence and considering whether, on that evidence, a reasonable possibility exists that the incident was accidental.

30. The role of an expert witness is to express opinions on matters which are not, or are not wholly, within the knowledge and experience of ordinary persons. (Clark v Ryan (1960) 103 CLR 486; R v Bonython (1984) 38 SASR 45 at 46). Opinion evidence in a case such as the present is based on a restricted collection of facts relevant to the expression of the opinion. However the jury's function when considering the issue to which the opinion evidence is relevant may well involve, as it did in the present case, consideration of a large number of proved circumstances which, for obvious reasons, were not put to the experts. The opinions of the experts are relevant in the ultimate assessment, but they cannot pre-empt the duty of the jury to consider the combined effect of all the circumstances which they find proved.

31. The prosecution case was that proof of the appellant's deliberate involvement was to be found in other evidence and the jury was entitled to act on that evidence if satisfied that the inference sought by the prosecution was established beyond reasonable doubt. Furthermore the finding for which the prosecution contended was not inconsistent with the views of the experts in the sense that they could not rule out the possibility of human intervention. For these reasons I reject the appellant's argument that the learned trial judge erred by failing to direct the jury to acquit the appellant by reason of the expert evidence. I also disagree with Mr Borick's criticism of the trial judge's use of the shorthand term "scientific evidence" when referring to the evidence of the experts. I am of the view that there is no substance in Mr Borick's criticisms of the manner in which the trial judge summarised the views of the experts. In particular I think his Honour was correct in suggesting to the jury that the combined effect of the expert evidence was that there were three possible causes of the fire, one of them being that it was deliberately lit.

32. By way of further criticism of the trial judge's approach to the expert evidence Mr Borick drew attention to a discussion between the learned trial judge and counsel in the absence of the jury while Mr Kutek was giving evidence. During the discussion the trial judge described the prosecution case as being "a case where the fire was started by Mr Penney throwing a lit match into a tin of methylated spirits". According to Mr Kutek's evidence which I have quoted above it is unlikely that the methylated spirits itself would catch fire and he said he did not think the soot marking on the tin containing methylated spirits indicated a burning of the methylated spirits. Although the methylated spirits may not have been set alight, the fire could have been started by the throwing of a lighted match into the boot and very little can be made of the judge's failure to be more precise in his description of the prosecution case. As I have pointed out the discussion took place in the absence of the jury. The prosecution could not be held to this statement of its case and at no stage did the trial judge repeat his observation in the presence of the jury.

33. Mr Borick argued that Mr Rofe made the same suggestion to the jury when he said in the course of his address: "But the Sunday, if you [sic] did open the boot, as he says he must have and he still doesn't remember it, but as he must have, what was he doing? He was going to mow; then he thought, `No, I'll clean the mower', but whatever, the jerry can is there in full view, but not removed. What about the methylated spirits? The bomb, the methylated spirits in the open can. He has given no explanation either in the record of interview or at trial.".

34. In my view this was not intended to be a statement as to the way in which the prosecution alleged the fire commenced. It appears from other parts of his address that Mr Rofe was suggesting no more as to the cause of the fire than what the experts allowed as a possibility, namely, that a lighted match provided the means of ignition instead of an electrical spark. Mr Borick made the further point that the throwing of a lighted match into the boot would have led to injury being caused to the person who threw the match. However the evidence of Mr Gudmann was that it was a dangerous activity which involved a risk of injury through explosion.

35. At the trial counsel for the appellant placed considerable emphasis on criticisms of the police investigation which had been made by the experts in their evidence, in particular the investigation in relation to the cause of the fire. According to the argument presented on appeal these matters should have been the subject of strong adverse judicial comment to the jury. Mr Borick further argued that they were relevant in considering whether the verdict was unsafe and unsatisfactory.

36. The criticisms of the police investigation are conveniently summarised in Mr Borick's final address to the jury. He referred to the investigation as "hopelessly inadequate". He pointed out that the match found in the methylated spirits had not been retained as an exhibit and that the contents of the methylated spirits bottle had been tipped out and thrown away. He said that the photographs of the scene and car were inadequate and that no tests had been done on the appellant's clothing. He referred to inappropriate tests being done by the technical services officer and criticised the notes which the police made of their investigations.

37. At the trial the technical services officer was not asked for any opinion as to the cause of the fire so that if his tests were inadequate they could not have affected the outcome of the case. The criticism of the failure to retain the objects referred to and the failure to examine the appellant's clothing appear to be well based and it was appropriate for counsel to bring them to the attention of the jury. However the relevance of these matters is limited. If expert evidence called as part of the prosecution case had been controversial, as may have been the case if the technical services branch officer expressed opinions, then these shortcomings may have been relevant to the quality of that evidence and the extent to which the jury could rely on the investigations and opinions of someone who had performed such an investigation. However this was not the case. If further investigations had been carried out and the objects referred to retained there is a possibility, although it is not certain, that the experts who did give evidence could have provided further information to the court. But speculation on what the evidence might have been is unhelpful. The jury's function was to assess the evidence which was before it.

38. This was not a case in which the history of the investigation was such that the evidence actually given was clearly unreliable. Nor was the trial made unfair by reason of the investigation. Mr Borick's submissions to the jury are of some relevance to this court when considering all the evidence and circumstances to determine whether the verdict of the jury is unsafe and unsatisfactory. However the investigation cannot be accorded the weight contended for by the appellant's counsel in his submissions before us. As for the learned trial judge, he reminded the jury of Mr Borick's comprehensive submissions on this topic. In my view he was not required to go further and make the strong adverse comments contended for by the appellant.

39. In summary, therefore, I reject the submission that the appellant was entitled to an acquittal simply by reason of the fact that the experts conceded the possibility that the fire could have been started without human intervention. Furthermore it is of little or no value in the present case to speculate on what might have been revealed if the police investigation had been carried out more thoroughly and appropriately. The jury were required to consider the expert evidence, but the prosecution was entitled to rely on all the proved facts and to invite the jury to convict on the inferences which could be drawn from them. I am also of the view that the learned trial judge did not mislead the jury in any respect when dealing with the expert evidence and its relevance to their deliberations.

40. Two grounds of appeal complained of the learned trial judge's directions on the elements of the offence of attempted murder. The grounds are as follows: "The learned trial judge erred in law by directing the jury, for the crime of attempted murder, the first element to be proved by the prosecution was a voluntary intention on the part of the accused to kill his wife.

The learned trial judge erred in law by directing the jury, for the crime of attempted murder, the second element to be proved by the prosecution was an attempt to execute the intention to kill."

41. Mr Borick argued that the effect of the trial judge's directions was to suggest that the jury look at the question of intention first and, if they found the intention proved, to then go on to decide whether the appellant performed the acts relied upon by the prosecution as carrying out that intention.

42. I agree that the most logical way of addressing the evidence would be to consider first whether the appellant deliberately started a fire in the boot of the vehicle. If the jury accepted the prosecution case on this issue it would be highly relevant in considering the issue of intention. But whatever the consequences might have been if the trial judge suggested a different order in which to consider the evidence, I am satisfied that he did not do so.

43. The trial judge began his directions on the count of attempted murder by summarising the elements of the offence in the following way: "The crime of attempted murder consists of three elements; you must be satisfied that the prosecution has proved each of them. First, the prosecution must prove a voluntary intention on the part of the accused to kill his wife. Nothing less than a specific intention on his part to kill her is sufficient.

Secondly, the prosecution must prove an attempt to execute that intention to kill, that is to say, the prosecution must prove an act or a series of acts which are immediately directed towards fulfilling that intention.

The third element which the prosecution must prove is that the act was done without any lawful excuse. That is to say, the accused had no lawful reason for doing what he did."

44. His Honour continued: "There has been no suggestion in the course of this trial that if the accused did in fact deliberately light the fire there was any legal justification for that act. So you are entitled to proceed on the basis, if you wish, that there is no suggestion that there was any lawful excuse for what occurred. In that sense you need not be troubled with the third element.

Essentially, in relation to the charge of attempted murder, you must therefore consider the first two elements, that is to say, whether the accused has proved the necessary intention of the accused to kill his wife, and secondly, that he engaged in an act or series of acts which were immediately directed towards fulfilling that intention. To put it another way, and perhaps a little more simply, the crime of attempted murder is the doing of one or more acts with the intention of killing a person. It is a series of acts which, if they had not been interrupted or stopped in some way, would have resulted in the killing. Simply expressed, the crime of attempted murder is the crime of trying to kill someone.

In the course of that outline I referred to the question of an intention to kill his wife. Let me say a little more on the question of intention. As I have said, the prosecution must prove the accused intended to kill his wife. It is not sufficient if he intended only to injury [sic] her or to cause her grievous bodily harm. As it is clear to you by now, an important question in this trial is whether the accused deliberately lit the fire which burned in and around the boot of the Torana, or whether the fire was accidentally caused. But, although that issue is in many ways at the forefront of the issues in this case, it is necessary to examine other questions in relation to the charge of attempted murder. If you are satisfied the accused deliberately lit the fire, you must consider whether he intended to kill his wife, or intended only to cause her some physical injury. The prosecution must prove that the only reasonable inference open on the evidence that you have heard is an inference of an intention to kill, and that there is no other reasonable inference that can be drawn from the facts."

45. I disagree with Mr Borick's assertion that in directing the jury in this way the trial judge was suggesting that they consider the element on intention first. He was simply enumerating, in the usual way, the elements of the offence which had to be proved beyond reasonable doubt. Indeed if any order was being suggested in the direction quoted above it was in the last two sentences where the trial judge dealt with the question of intention on the assumption that the jury was satisfied that the appellant deliberately lit the fire. Just before the jury retired the trial judge found it convenient, once again, to deal with the actus reus first. He said: "I wish to close by reminding you of the issues you have to consider. It is perhaps convenient to begin with the question whether the accused deliberately lit the fire. As I have said, and as you know very well by now, the case is based on circumstantial evidence. There are three alternative conclusions open to you. First, if you are not satisfied the prosecution has proved beyond reasonable doubt how the fire was caused, you must acquit the accused. Secondly, if you think it probable or likely that the accused deliberately lit the fire, but you are unable to exclude as a reasonable possibility that the fire was caused by a spark from the boot light switch, you must in those circumstances also acquit the accused. Thirdly, if you are satisfied that the prosecution has proved beyond reasonable doubt not only that the accused deliberately lit the fire, but also has proved that there is no other reasonable possibility of any other cause of this fire, and that it was not caused by a spark from the boot light switch, if that is your conclusion, you then turn to the question whether the accused is guilty of attempted murder or endangering life. I have already told you of the elements of the offences of attempted murder and endangering life. I remind you that you cannot convict the accused of attempted murder unless you are satisfied that the accused had an intention to kill his wife and he did not only intend to injure her or cause her grievous bodily harm. You must be satisfied that the inference of an intention to kill is the only reasonable one open on the evidence that you have heard, and that he could not have had any other intention."

46. The appellant advanced a further argument that the trial judge did not instruct the jury that the intention must coincide with the acts relied upon as constituting the attempt. Such a direction is appropriate in the case of many offences including murder. However the essence of an attempt to commit a crime is the carrying into effect of the requisite intention. The learned trial judge instructed the jury that the prosecution must prove "an attempt to execute that intention to kill, that is to say, the prosecution must prove an act or a series of acts which are immediately directed towards fulfilling that intention". The requirement of an intention to kill at the time of the actus reus is inherent in the direction which was given.

47. The next ground of appeal complains that "during the course of the trial he [the trial judge] exhibited a bias for the prosecution and a bias against the defence and, in so doing, deprived the appellant of a fair trial". The gravamen of the appellant's complaints was that the summing-up and the general conduct of the case by the trial judge were influenced by his Honour's own views at to the merits and that the appellant's case was thereby prejudiced. Similar grounds of appeal were considered in R v Mawson [1967] VR
205 where the Victorian Full Court said (p207): "It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party's opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of Bateman
(1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of Cain (1936) 25 Cr App R
204, or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done. That was the principle applied in a case of this kind by this Court in Delaney [1955] VLR 47".

48. A list of the instances of conduct by the trial judge relied upon by the appellant in support of this ground was annexed to the appellant's outline of argument and others were referred to in the course of argument. I have read all the passages referred to and considered them in the light of the principles discussed in R v Mawson (supra).

49. It is claimed that on a number of occasions the trial judge cross-examined defence witnesses and, on other occasions, queried the relevance of evidence in circumstances said to be prejudicial to the appellant. It is well recognised that a trial judge should use the power to ask questions of a witness with circumspection. However it may be necessary for the court to attempt to clarify ambiguities for the benefit of the jury or to ask questions considered necessary for a proper understanding of the evidence. Furthermore some questions of a witness by a trial judge may be appropriate in circumstances where he or she is concerned as to the admissibility of the evidence being led.

50. The appellant complained about the judge's intervention on occasions when he questioned expert witnesses for the defence. At one point he asked some questions of Mr Kutek about sooting in various parts or the boot. (Transcript 618). The judge explained that he was asking the questions in order to better understand the evidence and they were in no sense a challenge to that evidence. On another occasion the trial judge asked if the defence witness Coulter had tertiary qualifications when he was being qualified as an expert. Attention was also drawn to an occasion when the trial judge expressed concern that the witness Kutek was getting close to answering the "ultimate question" for the jury. This was a proper issue to raise with counsel and, in any event, the discussion took place in the absence of the jury. Mr Kutek was asked by the trial judge how long it would take for the muffler to heat up in order for it to be capable of emitting a lighted particle (transcript 609). The information was pertinent and the expert acknowledged its relevance. At one point in the cross-examination of the witness Carger the trial judge disallowed a question asked by Mr Borick (transcript 235) who complained that the judge had misinterpreted the question. The trial judge then permitted Mr Borick to pursue the line of questioning. There was a complaint that the trial judge wrongly interfered with re-examination (transcript 549), but I am satisfied that he was justified in refusing to allow the question as phrased to be put to the witness.

51. The trial judge interrupted the evidence-in-chief of the expert defence witness St Hill to ask a series of questions which pressed the witness about an opinion he had expressed. In my view this is one instance where it would have been better to leave consideration as to the appropriateness of the questioning to the completion of cross-examination. It was a point which might well have been left to the cross-examiner to raise. However this is a minor criticism and, in my view, there is no justification for the complaints in relation to the other interventions. The judge's involvement in the questioning of witnesses did not operate unfairly against the witnesses or the appellant's case. It did not unduly interfere with counsel in the presentation of the appellant's case; nor were the interventions of the type "which, may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants". (R v Lars and Others (1994) 73 A Crim R 91 at 126).

52. I have reached the same view in relation to other passages in the evidence and the proceedings generally which are said to indicate an unfair approach by the trial judge to the appellant's case. Most of them took place in the course of the evidence of expert witnesses and were well within the bounds of a trial judge's proper participation in proceedings before a jury. A further complaint of a "precipitate interjection that would in the jury's eyes have made the accused look less credible" was simply a comment by the judge (transcript 472) that the manner in which the appellant said he parked his vehicle did not make sense. The comment was directed at a description which the trial judge was unable to understand and in no way reflected on the credibility of the appellant. A complaint that an illustration used by the trial judge was very prejudicial (transcript 539) involved a set of circumstances unrelated to the facts of the present case. I disagree with the appellant's contention that the trial judge made an "unnecessary and disparaging" comment when he said that the relevance of a bundle of photographs which the defence wished to tender eluded him (transcript 570).

53. When a ground of appeal such as this is raised it is important for an appellate court to consider the transcript of the original proceedings as a whole in order to determine whether the total effect of the trial judge's interventions were such as to cause a miscarriage of justice. (R v Davies [1984] 3 NSWLR 572 at 575). After perusing the transcript and considering all the instances to which Mr Borick drew our attention I am strongly of the view that they did not result in unfairness to the appellant or a miscarriage of justice.

54. The next ground of appeal states that the learned trial judge failed to properly direct the jury on the distinction between motive and intention. The two concepts were dealt with in different parts of the summing-up. I have already quoted some passages from the summing-up on the subject of intention. The trial judge correctly identified for the jury the specific intention required in the case of attempted murder and he went on to explain the process whereby an intention might be inferred from the actions and statements of a person. He gave an appropriate example to the jury of the manner in which intention can be inferred from actions.

55. The relationship between the appellant and his wife was dealt with in its proper place as an item of circumstantial evidence. The trial judge directed the jury as follows: "I come now to deal with the prosecution case and the defence case in relation to the circumstantial evidence, which the prosecution says proves the matter, and which is disputed by the defence. There are perhaps four, maybe five headings under which we can consider it. The first is the relationship between the accused and his wife. The second is the insurances. The third is the cricket gear. Fourth is the contents of the boot, and fifth, the events, or, if you like, the opportunities on 30 October.

The prosecution points to the unhappy relationship between the accused and his wife, and to the breakdown in the marriage. As Mr Rofe acknowledged, standing alone, it doesn't prove very much. But, he says, it is helpful if you can consider the converse. If there was a happy marriage, it might be easier to conclude there was no intention on the part of the accused to attempt murder.

The prosecution next points to the benefits for the accused if his wife should die. He would have the house he had built and of which he was immensely proud. He would have the children he loved. He would have his freedom, and incidentally, he would benefit from the insurance. Insurance, he said, is not the primary motive, but it nevertheless is an incidental benefit which he would receive. He emphasises he does not suggest for one moment that this is a case where that is the primary motive for the actions of the accused."

56. Later his Honour dealt with Mr Borick's argument that the relationship evidence was irrelevant.

57. In my view his Honour correctly stated the relevance of this type of evidence. In Wilson v The Queen (1970) 123 CLR 334 at 337. Barwick CJ said: "It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility."

58. I am confident that as a result of the trial judge's directions the jury would have understood the difference between motive and intention and the way in which they were to approach both concepts. I also reject the argument of the appellant that it was necessary for the trial judge to include a reference to the evidence of good character when dealing with the issue of motive. His Honour gave directions on the relevance of good character elsewhere in his summing-up.

59. Mr Borick complained further that the trial judge did not direct the jury that motive must be proved beyond reasonable doubt. As the motive was an item of circumstantial evidence I think that it was necessary for the prosecution to prove beyond reasonable doubt the facts from which it might be inferred. After reading the summing-up as a whole and, in particular, the directions on circumstantial evidence, I am satisfied that the jury would have understood that the relationship between the appellant and his wife had to be proved beyond reasonable doubt before any inference could be made. But in any event there was no dispute about the existence and extent of the marital disharmony or the financial and other consequences of Mrs Penney's death. The accused himself gave evidence of these matters. Accordingly I would apply the proviso on this issue if it became necessary.

60. A further point taken on the issue of intent was that the trial judge failed to direct the jury that they could not take into account the act or acts which were said to constitute the attempt to commit the offence when considering the question of intention. This ground is based upon the false premise previously referred to, namely, the assertion that the expert evidence establishes a reasonable possibility that the fire was not deliberate and so the act cannot be used to establish intention. Once it is acknowledged that the jury were entitled to go beyond the expert evidence in deciding whether the act was deliberate and to use the circumstances of the deliberate act, if this is what it was found to be, in considering intention, the criticism ceases to have any relevance.

61. Mr Borick referred to various passages in Mr Rofe's address to the jury which he argued should have been the subject of adverse comment by the trial judge and, in some instances, correction. In my view the comments made by Mr Rofe were proper arguments available to the prosecution. It would appear that there was one mis-statement of the evidence when Mr Rofe stated that the appellant filled his mower with petrol three days before the incident. In the circumstances of the case, however, the appellant could not have suffered any prejudice by reason of the remark.

62. Finally it was argued that the verdict of the jury was unsafe and unsatisfactory. In considering this ground an appeal court is required to undertake its own assessment and to determine the issue in accordance with the principles discussed in the following passage from M v The Queen (1994) 181 CLR 487 at 493: "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 See Whitehorn v. The Queen (1983), 152 C.L.R., at p. 686; Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R., at p. 532; Knight v. The Queen (1992), 175 C.L.R. 495, at pp. 504-505, 511. 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 Chamberlain v. The Queen [No. 2]
(1984), 153 CLR, at p. 621."

63. The core of the prosecution case is to be found in the events of the Monday morning. The prosecution was able to highlight a series of coincidences pointing strongly to the involvement of the appellant in events leading to the fire. These included the swapping of the cars on the morning of the incident because of an assertion by the appellant concerning the indicator lights, the leaving of his bag in the Torana, the placing of the large quantity of petrol in the boot, the presence of the petrol impregnated rags in the boot along with the methylated spirits, the positioning of a rag running from the inside of the boot to the open fuel filler pipe and the fact that the fire commenced within a short time of the appellant being at the boot of the vehicle.

64. Evidence from other sources cast considerable doubt on the explanations which the appellant offered for these occurrences. Mrs Penney had not noticed any problem with the indicators and a mechanic found nothing wrong with them when they were tested, although it is relevant to consider the evidence of the defence expert who said that indicators can malfunction intermittently. Nor had Mrs Penney noticed that the petrol cap was missing, although the appellant claimed that it had been for over a week. The appellant claimed that he forgot to get his bag from the Torana and he forgot to take the large container of petrol from the boot. He has no recollection of placing the petrol rags in the boot, but thinks he may have done so. He does not know if he placed the methylated spirits in the vehicle. If he had placed the petrol impregnated rags and the methylated spirits, particularly the open tin containing methylated spirits, in the boot it is pertinent to ask why. Finally, the allegations made by the prosecution are to be considered against the background of the relationship between the appellant and his wife.

65. In assessing the general effect of this evidence I have taken into account the evidence called as part of the appellant's case and particularly that given by the appellant himself and the experts called on his behalf. In considering much of the evidence this court is in as good a position as the jury to make an assessment, but in accordance with the decision in M v The Queen I do not disregard the advantage which the jury had in assessing the appellant while he was giving evidence, particularly in relation to the explanations he gave with respect to the matters which I have summarised above.

66. I have also taken into account the view expressed in M v The Queen (supra at 493) that a verdict may be unsafe or unsatisfactory for reasons which lie outside those connoted by the phrase "unreasonable or cannot be supported having regard to the evidence". A conviction will be set aside - "... whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled." Davies and Cody v. The King (1937) 57 CLR, p. 170 at p. 180.

67. A number of the issues raised by Mr Borick such as the consequences of the manner in which the police investigation was conducted and the matters discussed under the heading of judicial bias are examples of the matters to be taken into account when considering this ground of appeal in the present case.

68. However, after taking all these matters into account, I am firmly of the view that the verdict was not unsafe or unsatisfactory and I would dismiss this ground of appeal.

69. Another ground of appeal alleges that the trial judge erred in finding that there was a case to answer, but after considering the prosecution case by itself and bearing in mind the test referred to in R v Bilick and Starke
(1984) 36 SASR 321 I am satisfied that the learned trial judge was correct in his ruling.

70. In my view the appeal should be dismissed.

DOYLE CJ

71. In my opinion the appeal should be dismissed for the reasons given by Duggan J, with which reasons I agree and to which I have nothing to add.

PERRY J

72. In my opinion the appeal should be dismissed. I agree with the reasons given by Duggan J.

73. I add some observations of my own.

74. On the question of alleged undue interference by the learned trial judge in the course of the trial, I would refer also to the judgment of the Court of Criminal Appeal in R v Petersen (unreported) 18/6/93 (Legoe, Matheson and Perry JJ) Judgment No. S3992.2 and in particular the judgment delivered by me in that case at page 9 and the cases there cited.

75. One of the grounds of appeal in the present case is that the learned trial judge erred in finding that there was a case to answer.

76. Although the authorities on the point are not entirely consistent, some suggest that a Court of Appeal should not entertain such a ground of appeal, on the footing that the only relevant question on appeal is whether on the whole of the evidence there was a miscarriage of justice. See, for example Rowley (1986) 23 A.Crim.R. 371 per Young C.J., with whom King J. concurred at 375:- "... where a submission that there is no case to answer is overruled and the accused adduces evidence and is convicted, the question upon an appeal against the conviction is not whether the ruling on the no case submission was wrong in law, but whether on the whole of the evidence the verdict is sustainable. If it is, no substantial miscarriage of justice has occurred: Wood [1974] VR 117".

77. Suppose an accused who gives evidence at the trial, confesses to the crime during the course of cross-examination? In such circumstances, it would hardly be sensible for the Court to entertain an appeal on the ground that at the close of the prosecution case, there was no case to answer.

78. However, the question of the legitimacy of this ground of appeal was not argued before us. For that reason I take the matter no further except to note other authorities of which I am aware which touch on the question: see Abbott (1955) Cr. App.R 141, Johnson (1979) 22 SASR 161, Myall (1986) 43 SASR
258, Maric (1978) 52 ALJR 631, 20 ALR 513 and Ayles (1993) 171 LSJS 46 per Perry J. at 65 et seq.

79. In my opinion, when an appropriate case next arises, it would be desirable for this Court to insist that the question be addressed.