R v O'Rourke
[2010] QCA 122
•25 May 2010
SUPREME COURT OF QUEENSLAND
CITATION:
R v O'Rourke [2010] QCA 122
PARTIES:
R
v
O'ROURKE, Christopher John
(appellant)FILE NO/S:
CA No 289 of 2009
DC No 229 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
25 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
29 March 2010
JUDGES:
Muir JA, Fryberg and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal against conviction be dismissed;
2. The application for leave to appeal against sentence be refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – appellant convicted of wilfully and unlawfully setting fire to his house and of attempting to dishonestly obtain a sum of money – appellant charged jointly with co-accused – prosecution alleged appellant procured co-accused to set the fire – prosecution case based on alleged financial difficulties of appellant and existence of insurance policy on the house – appellant argued he was not in financial difficulty – appellant proximate to the house minutes before fire – appellant and co-accused friends – co-accused previously convicted of causing malicious damage by fire – whether verdict against weight of evidence – whether verdict unsafe and unsatisfactory
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – prosecution alleged appellant's motive was greed in opening address – prosecutor later alleged appellant wanted to destroy the house to put up a new house – whether prosecution changed alleged motive – whether primary judge erred in failing to direct the jury that the motive opened by prosecution had not been established
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – private investigator specialising in fire investigation gave evidence that the house was over-insured –investigator gave estimate of cost of rebuilding – investigator held a builder's licence and had worked as a builder – appellant submitted investigator's valuation expertise not established – whether primary judge erred in failing to direct the jury to disregard that evidence
Criminal Code 1899 (Qld), s 668E(1)
Ex parte Graham; Re Dowling [1969] 1 NSWR 231, cited
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, applied
R v Caldwell (2009) 22 VR 93; [2009] VSCA 41, cited
R v Dyke[2009] QCA 339, distinguished
R v Martin (2002) 134 A Crim R 568; [2002] QCA 443, cited
R v Smith (2007) 179 A Crim R 453; [2007] QCA 447, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, appliedCOUNSEL:
A J Kimmins, with Y Chekirova, for the appellant
M J Copley SC for the respondentSOLICITORS:
Potts Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MUIR JA: Introduction
The appellant was convicted on 5 November 2009 after a trial in the District Court of wilfully and unlawfully setting fire to a building on 16 October 2004 (count 1) and of, between 7 November 2004 and 19 April 2005, attempting to dishonestly obtain a sum of money (of a value of more than $5,000) from Suncorp Metway Insurance Limited (count 2). On both counts, the appellant was charged jointly with Chadston Hilton Donnan. Donnan pleaded guilty before the appellant's trial.
The appellant was sentenced to three years imprisonment for count 1 and to a concurrent term of imprisonment of 12 months for count 2. His parole release date was fixed at 5 April 2011. He appeals against his conviction on the grounds addressed below. Before turning to those grounds, it is useful to summarise the relevant evidence.
Ms Sands' evidence
The evidence of Ms Sands, who, at relevant times was "dating" Donnan, was used by the prosecution, to trace the movements of the appellant and Donnan on the evening of Saturday, 16 October 2004. Her evidence was to the following effect. She met the appellant through Donnan about a week before the fire. At about 6 pm on 16 October, Donnan telephoned her and asked her to pick him and a friend up from the Tugun Surf Club at 7 pm. She drove to the surf club, picked up the appellant and Donnan and drove to Donnan's residence on Golden Four Drive, Tugun. Donnan ran inside, having said that he had left his wallet at home, and returned after a few minutes with a shopping bag which was "quite full". She then drove with her passengers to the appellant's residence on Tallebudgera Drive, Palm Beach ("the House"), where they alighted. Donnan said that he "wanted to go inside with [the appellant] and have a beer". By this time it was about 7.30 pm. She drove back to her place, which took only a matter of seconds. About 10 to 15 minutes later, Donnan walked to her house where he went through a basket in the kitchen containing lighters and tested them to see if they worked. He found a blue one which worked and took it. Donnan said that he had to go back to the appellant's house and that he wanted her to be at her carport "… at 8.30 with the car running".
Donnan was "cool and collected" but looked "a bit nervous". He was wearing, she thought, three-quarter pants and a blue T-shirt with "Lonsdale" written on it.
Mr Franklin's evidence
A taxi driver, Mr Franklin, gave evidence that he was directed to go to 89 Tallebudgera Drive at North Palm Beach at 8.23 pm on 16 October. He picked up a passenger standing in the street at 8.26 pm and drove him to the Casino. The passenger, who, it was accepted, was the appellant, appeared "Very calm, very cool, collected".
A record of the appellant's mobile phone account showed that he had telephoned the taxi company at 8.01 pm on 16 October. It was not disputed that the call was made in order to book a taxi for 8.30 pm that evening.
Mr Roberts' evidence
The next door neighbour, Mr Roberts, who was a station officer with the Queensland Fire Service, before describing the events surrounding the fire, said that the appellant's parents were minding the House for the appellant and his wife. He had seen them leaving the House by car at about 7 pm. The appellant and his wife had two large dogs; one which he thought was a bull mastiff, and the other was "lean, tall, quite muscular". He described one of the dogs as "a good guard dog", and agreed it was "Very territorial".
He said that at about 8.29 pm he heard an explosion followed by a second louder explosion. His house shook and the lights in the house dimmed. He went to a room in the house and looked through the window. He said:
"I was just in time to see it was like the little house had sort of taken a breath of air and then foom, flames came out all the windows visible to me on three sides of the building."
He asked his wife to ring the fire service and went to the scene of the fire.
Mr Hemphrey's evidence
An officer, Mr Hemphrey, of the Queensland Fire and Rescue Service, gave evidence that a triple 0 call had been received in respect of the fire at 8.29 pm. He went to the House at about 9.50 pm that evening and inspected it. He found one 20 litre plastic jerry can on the floor of the hallway and another on a bed in a bedroom. A plastic pump weed sprayer was also found in the hallway. He swore that there had been "a fairly forceful explosion in the house" consistent with one caused by a "flammable accelerant". He and a police officer also found a blue cigarette lighter outside the laundry door.
Detective Senior Constable Elliott's evidence
Detective Elliott gave evidence that Donnan had been taken to hospital suffering from third degree burns to extensive parts of his body "sustained from [an] intense heat, flash heat, mainly on his arms, as far as I can recollect, and upper chest". He said, without objection, that when he arrived at the scene of the fire he was made aware that Donnan had been treated on Mallawa Avenue and had been taken to hospital by ambulance. It was accepted by the defence that Donnan had lit the fire. The detective found in a wheelie bin at the House a black pair of shorts and a black T-shirt or singlet, which ambulance officers had cut from Donnan. The T-shirt had no writing on it. He described the shorts as "Ruggers or something like that … not a long pair of shorts like a running sort of short". He said they were not three-quarter pants.
Subsequent analysis established that the two cans and the spray contained quantities of petrol.
Other evidence
The appellant and his wife had an insurance policy in respect of the House and contents. The House had been insured between 28 August 2003 and 28 August 2004 for $206,000 and the contents for $31,000. At the time of the fire, as a result of an increase in the Consumer Price Index, the House was insured for $220,000 and the contents for $32,000. The evidence was to the effect that the market value of the land was $400,000 and that the cost of replacing the House was between $100,000 and $150,000. On 8 November 2004, a claim was made under the insurance policy. The claim was refused in April 2005.
The appellant, or a company of which the appellant was a director, Christal Pty Ltd, acquired a business called "Pets Paradise" in December 2003 for $78,000. His wife and brother were the company's other shareholders. A forensic accountant gave evidence to the following effect. The company's "gross profit" for the year ending 30 June 2004 was $254,000 and its expenditure for that year was $280,000. The accountant agreed in cross-examination that the company's trading profit for that year was $15,000. No evidence was led explaining the meaning of "gross profit" or "trading profit".
The gross profit for the year ending 30 June 2005 was $420,000 and the expenditure for that period was "a little over" $400,000.
The appellant's gross income for 2004 was "around the 32,000 mark" and his gross income for the 2005 year was $7,000. The appellant's wife's net income, after tax, was $39,000 and $40,000 in 2004 and 2005 respectively.
In 2004, the appellant and his wife had an average monthly surplus of cash available of about $915 but in the 2005 year, their cash flow was at a deficit of $430 a month. In that year, they had a mortgage to the ANZ Bank of $300,000 with monthly repayments of $2,266. A business loan with the ANZ Bank entitled the appellant and his wife to borrow up to $171,000. That loan was not fully drawn down at any material time. They also had a motor vehicle loan of $33,000 and they had received "something like" $150,000 from family members in 2004, 2005.
The accountant, asked for his "overall opinion" of the financial resources of the appellant and his wife at the end of the "financial period ending 2005", said:
"I would say that the income from their employment and from the business was quite low and especially considering their fixed monthly commitments that they had to service their debt levels. As we said before, they actually didn't earn enough to service all their debts and principally they relied on extending their debt commitments, so redrawing from their loans or some credit cards, but principally from money from apparent financial - sorry - money from family members. They kept up to date with all their mortgage repayments, but I think it was pretty much on reliance of this money or gifts from family."
The appellant's evidence
The appellant gave evidence to the following effect. He came down to Brisbane from Mooloolaba on 16 October 2004 in order to meet friends visiting from Wollongong. His father picked him up from the Gateway Bridge and took him to the House. In the afternoon he went with friends to the Tugun Surf Club where he met Donnan, who he had known since he was about six or seven. He arranged to meet his friends from Wollongong at the Casino at 9 pm that evening. He asked Donnan if he wanted to come and was told that he had a dinner.
He asked Ms Sands, who had come to the club to give Donnan a lift, if she could take him home. On route to his place, they went to Donnan's residence. Donnan went in and came out with a plastic bag containing some of the appellant's T-shirts. The appellant explained that he and Donnan "often went out. Over the last year, the friends, when we'd drink, we'd socialise and things like that. I've got clothes of theirs, they've got clothes of mine".
Ms Sands drove Donnan and the appellant to the House at Tallebudgera Drive, where the two men had "a couple of beers" and got into an argument about a car accident some years before in which both of their brothers were involved. Both men, who had been drinking for several hours, were "moderately intoxicated". He "never ever thought [the argument] was going to become physical". He ended up telling Donnan to leave the House because he had had "enough of the conversation about his brother's [getting] nothing, [damages as a result of the accident] my brother's got a house and a unit and driving a BMW. My brother is just stuffed, so I … took exception to it and he took exception to the fact that I took exception to it".
Between about 10 and 20 minutes after Donnan left the House, the appellant rang and booked a taxi for 8.30 pm to go to the Casino. After five to 10 minutes he went out, shutting the door behind him. He paused to pat his dogs before walking down his driveway to Tallebudgera Drive to await the arrival of the taxi. So that he would be seen more readily, he walked about 10 metres along the street to a street light where he waited for "between ten and 15 minutes" before the taxi arrived.
The fire destroyed the contents of the House including: a hi-fi stereo; the appellant's wife's Royal Doulton collection of figurines and other objects; clothing of his parents; whitegoods; his father's ventilator, which he used for asthma and "a couple of watches".
At the time of the fire, he was "coping fine financially". He was paying off the mortgage on the House at Palm Beach and his parents were living in it rent-free.
In addition to his declared income, he made, on average, $500 a week in cash, which he did not declare in his income tax returns, from the sale of dogs obtained by him from breeders.
He agreed that in the 2005 financial year he and his wife had an excess of outgoings over income of $430 a month.
The sum insured on the House was derived from "an assessment from Suncorp on what a three-bedroom brick home would be insured for on the square metreage. The figure given was $206,000". His wife accepted it and it increased in accordance with movements in the Consumer Price Index.
He kept in his garage a five-litre weed sprayer for weed killing. Also in the garage were two cans of petrol for his motor mower.
His normal practice was to lock his house when he left it.
Ground 1 - the verdict of the jury was against the weight of the evidence and/or was unsafe and unsatisfactory
The contentions of counsel for the appellant
The prosecution case was founded on alleged financial difficulties and the existence of an insurance policy on the House. The prosecution case was that the appellant must have been present whilst Donnan was spraying petrol inside the House, but the evidence of Ms Sands did not support this conclusion. The finding of the blue lighter did not implicate the appellant and the taxi driver's evidence of his collecting the appellant from the House at 8.26 pm did not support it either, particularly having regard to the evidence of the appellant's demeanour. There was no evidence of any petrol smell on the appellant.
The theory of the prosecution case was that Donnan returned to the appellant's house at approximately 7.50 pm and that the appellant was there at the time. The evidence was that all that was required for Donnan to enter the House and spray it with petrol was about a minute and a half. In the absence of any evidence of forced entry, Donnan had three minutes to set fire to the House after the appellant's departure at 8.26 pm and the triple 0 call at 8.29 pm.
A consideration of all of the financial evidence, including that of the appellant himself, does not support the Crown case that the appellant was in financial difficulties. The Pets Paradise business was purchased for $77,986 plus $7,000 stock in December 2003 and sold in November 2005 for $230,000 plus $30,000 stock. There were no defaults in paying creditors and no defaults in rental, mortgage or credit card payments.
The insurance policy did not go into evidence and all the evidence establishes is that the House was covered by insurance.
The case falls within the following description in M v The Queen:[1]
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
[1](1994) 181 CLR 487 at 494.
The contentions of counsel for the respondent
The following circumstances made it open to the jury to be satisfied that the appellant procured Donnan to set the fire:
· the appellant's association with Donnan in the House prior to the fire;
· the friendship between the two being such that the appellant allowed Donnan to be in the House; and
· the appellant's proximity to the House up until only some minutes before the fire was set; and
· Donnan's committing a malicious act for no obvious reason.
The possibility that Donnan could have taken the steps required to set the fire without the appellant's knowledge, had the appellant been in the House up until immediately before the taxi arrived, could be safely disregarded.
The other possibility, which was open on the appellant's evidence, was that at some point after the appellant left the House and when he was either in his yard or waiting on the neighbour's driveway, Donnan entered the House unbeknown to the appellant and took the steps necessary to set the fire. It was open to the jury to regard this possibility as negatived as it involved Donnan putting himself at risk of discovery should the appellant return to the House before the taxi arrived.
From the evidence of Ms Sands and Detective Elliott, it could be concluded that Donnan changed his clothes after he left Ms Sands' house with the lighter and prior to the fire starting. Ms Sands did not see Donnan leave with anything other than the lighter. It is possible that Donnan changed somewhere between Ms Sands' house and the appellant's, but the more likely possibility is that he changed inside the appellant's house either before or after spreading petrol. If he changed inside the House, and if he did it without the appellant's knowledge, he ran a greater risk of the appellant discovering him. A change of clothing inside the appellant's house was also more likely because Donnan took no clothes with him from Ms Sands' house.
If it was open to the jury to be satisfied of guilt beyond reasonable doubt from the matters identified by the respondent, the inability to establish any plausible motive does not assist the appellant in showing that the verdicts are unreasonable.
Ground 1 – Consideration
This ground involves s 668E(1) of the Criminal Code 1899 (Qld). In determining whether "the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence"[2] "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".[3]
[2]Criminal Code 1899 (Qld), s 668E(1).
[3]MFA v The Queen (2002) 213 CLR 606 at 615.
The prosecution case against the appellant was entirely circumstantial. Its principal strength lay in the uncontested fact that the fire was set by Donnan. The appellant and Donnan had known each other from childhood and were good friends: good enough friends for one to often wear the other's clothes, if the appellant's evidence in this regard is accepted. In the circumstances, it would have been remarkably perverse of Donnan to burn down his friend's home unless the appellant had asked Donnan to take this extreme action.
The appellant's counsel attempted to explain Donnan's otherwise inexplicable behaviour by reference to the appellant's evidence that he and Donnan had argued at, or a little after, 7.30 pm on 16 October. The argument, however, was not said to have been violent or even to be about a matter which, viewed objectively, was likely to have provoked Donnan to the extent that he would wish to harm the appellant, let alone destroy his house. If Donnan had been angered by the altercation alleged to have taken place, he had ample time to cool off: he walked from the House to Ms Sands' place and back again.
In setting the fire Donnan deliberately took steps to ensure that the House would be destroyed beyond any possibility of repair. That was more suggestive of a considered plan of action arranged with or connived in by the appellant, than with a hot headed response to an argument.
The timing of the incident points in the same direction. At around 7.45 pm, Donnan walked to Ms Sands' residence and obtained a blue lighter. He then walked back to the House. He would have understood that the appellant was likely to be in the House so, if he had the intention of destroying the House without the appellant's approval, he would have needed to proceed with great caution. Plainly, he could not afford to be seen by the appellant if he was going to destroy his house.
The appellant's taxi arrived at 8.26 pm. Unless, which is unlikely, Donnan had evaded the appellant and was hiding in or about the House, it would seem highly probable that Donnan had, at the outside, three minutes within which to get to the street end of the driveway, walk up to the House and light the fire.
In that three minutes Donnan had to: bring the two plastic jerry cans of petrol into the house from the garage; pour petrol from them and position them; pour petrol into the garden spray, take the garden spray from the garage into the House and pour and spray petrol about. It is conceivable, but quite improbable, that Donnan could have prepared the fire in the above manner in three minutes. And there is good reason for concluding that Donnan did not act in haste. The use of the garden spray is more indicative of thorough preparation of the fire, than haste.
The conclusion that the appellant was aware that Donnan was to light the fire is strengthened by Ms Sands' evidence about Donnan's demeanour when at her residence looking for a lighter and about the clothes he was wearing. Donnan exhibited no signs of anger or haste and it appears that he changed his clothes after leaving her residence. The most likely place for his change of clothes was at the House. That is also suggestive of deliberate pre-planned conduct rather than haste.
Ms Sands' evidence of Donnan's request that she be at her carport at 8.30 pm with the car running is also more consistent with a planned and timed operation rather than conduct resulting from an angry impulse.
The fact that the appellant's parents were living in the House at the time it was destroyed is a matter which weighs against the prosecution case. The destruction of the dwelling in which one's parents are residing, even if the property is one's own, would constitute an even more marked departure from social norms than the simple burning of the residence in order to obtain an insurance benefit. However, there was no evidence that, apart from clothes and a ventilator, any property of value belonging to the appellant's parents was destroyed. The appellant, who was the only defence witness, swore that the replacement cost of the contents of the House was "just under $90,000" and that his wife's Royal Doulton collection cost $15,000 to acquire. Although the prosecution was not in a position to contradict the appellant's evidence, the jury was not obliged to accept it. Also, the jury may have concluded that any loss suffered by the appellant and his wife would be greatly outweighed by the benefit to be obtained from an insurance payout.
Counsel for the appellant, ultimately without objection by counsel for the respondent, relied on an affidavit sworn by Donnan to the following effect.
He pleaded guilty in 1996 to a charge of causing malicious damage by fire. He did "not really recall much about this incident at all" but was able to say that he set fire to the house of a female with whom he had been living in a de facto relationship. He had been drinking and argued with the complainant. He was then "extremely upset" as a result of the death of his grandfather, to whom he was extremely close: his grandfather having raised him from when he was 18 months old. Donnan, then 22 or 23 years of age, was suicidal at the time.
Donnan swore that he pleaded guilty "to the facts set out" in a document which included a statement to the effect that the complainant had informed police that she and the appellant had had an argument and that "she left him at the premises with instructions to leave a short time later". Donnan admitted using petrol and a cigarette lighter to start the fire.
Donnan swore that he was "extremely badly burnt" in the 2004 fire.
In my view, the affidavit evidence is of little benefit to the appellant. Nothing is known of the circumstances of the argument Donnan had with the complainant in the 1996 incident. The damage to his house was estimated to be $60,000 but there is no evidence of the extent of the fire or of the way in which it was prepared or started beyond the statement that petrol and a cigarette lighter were used.
More significantly, the penalty imposed for the 1996 offence was a fine, together with a good behaviour bond. That penalty strongly suggests the existence of highly mitigating circumstances as well as the absence of premeditation and planning. The appellant's emotional state at the time was also likely to have been taken into account in mitigation.
The circumstances of the 1996 offence thus appear to be markedly different from those relating to the 2004 offence and the evidence falls well short of demonstrating that Donnan had a predisposition to burn down dwellings of friends or lovers when angered by them.
It is also the case that if, as would be likely, having regard to their long association, the appellant was aware of the 1996 offence, it would explain why the appellant may have thought of approaching Donnan to burn down the House.
For the above reasons I am of the view that it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt.
Grounds 2 and 3 - there was a miscarriage of justice in that the prosecution changed the alleged motive of the appellant after defence counsel completed his address.The primary judge erred in failing to direct the jury that the motive opened by the prosecution had not been established.Such evidence should be disregarded and the freshly alleged motive should be disregarded.
The appellant's counsel's submissions
In his opening address, the prosecutor informed the jury, "it's the prosecution case that the defendant instructed Chad Donnan to set the fire so that he could make a claim for the insurance … And finally you will hear that he had financial reasons for destroying the property …"
In his summing-up, the primary judge noted the prosecution's submission that greed was the motive and the defence submissions that the family finances were not strained.
As a result of the evidence, there was no basis upon which a reasonable inference could be drawn that the appellant was in financial difficulty. As a result, the prosecutor changed the motive which he had opened to the jury. In the cross-examination of the appellant, it was hinted for the first time that the House was an old house that would cost "a bit to demolish" and there was a comment about putting up a building that would be worth more than the building which had been destroyed.
In his address, the prosecutor articulated for the first time the new motive, namely "to get rid of this old brick house, put up something better on a nice piece of prime development land" which the appellant did not want to pay for. At no time did the prosecutor effectively put such a proposition to the appellant.
The primary judge gave the jury the standard direction in the Bench Book on motive. He should have informed the jury that the prosecution had abandoned the motive they had opened the case with and that, accordingly, there was no evidence of a motive for the burning of the House by the appellant. The primary judge should also have directed the jury to ignore the new alleged motive.
Failure to direct in this way resulted in a "serious and unfair irregularity in the trial process".[4] The appellant was entitled to know the precise case to be put against him,[5] especially in a wholly circumstantial case where motive was a significant part of that case. Where relevant particulars are not stated in the indictment, the accused is entitled to be informed of the specific transaction upon which the Crown relies, and to be appraised, not only of the legal nature of the offence with which he is charged, but also the particular acts, facts, matters or things alleged as the foundation of the charge.[6]
[4]See R v Smith (2007) 179 A Crim R 453.
[5]Ex parte Graham; Re Dowling [1969] 1 NSWR 231 at 240, 241.
[6]Johnson v Miller (1937) 59 CLR 467 at 489, 495, 501 – 502; see also R v Caldwell [2009] VSCA 41 at 23.
The respondent's counsel's submissions
Counsel for the respondent submitted that the appellant was given an opportunity to comment on the suggestion that he was motivated by a desire to have a better house erected at another's expense. He submitted that there was not so much a change in motive, but a greater definition of it. Defence counsel took no point about the unfairness which is now alleged. Rather, he took advantage of the failure of the prosecution to establish that the appellant was in "strained" circumstances, as the prosecutor had asserted in his opening address.
If the fairness of the trial was not impaired, no miscarriage of justice occurred. Approached in this way, the test is similar to the situation where a trial judge sums up on a path to conviction not relied on by the prosecution.[7]
[7]R v Martin (2002) 134 A Crim R 568 per McPherson JA at 572, 573 [11 – 15].
Grounds 2 & 3 – Consideration
I do not accept the submission that the motive of greed put forward by the prosecutor in his final address was not within the case opened by the prosecutor. After describing the claim made by the appellant shortly after the fire, the prosecutor said:
"Members of the jury, it's the prosecution case then that you can infer, beyond a reasonable doubt, that he wanted Donnan to burn down the property so that he could make a false claim to his insurance company."
After discussing how the fire was started and the movements of the appellant immediately before the fire, the prosecutor said:
"And finally you will hear that he had financial reasons for destroying the property. It will be invited (sic) to you at the right time that you can infer that what he didn't count on was his property being burnt down so quickly.
Members of the jury, it's the prosecution case then that you can infer, beyond a reasonable doubt, that he wanted Donnan to burn down the property so that he could make a false claim to his insurance company."
The "greed" submission of having the insurer pay for the appellant to put up a new house is merely a more specific way of putting the proposition opened, that the appellant requested Donnan to burn the House down in order to claim on the insurance. But even if this conclusion is incorrect, defence counsel took no objection to the prosecutor's address or to the prosecutor putting the greed motive to the appellant in cross-examination. Counsel's failure to object is readily explicable by the making of a forensic decision that the result of an objection might be to clarify and focus the prosecution case and deprive counsel of the advantage of being able to debunk the theory underlying the prosecutor's opening.[8]
[8]See TKWJ v The Queen (2002) 212 CLR 124 at 135 and 155 and Nudd v The Queen (2006) 80 ALJR 614 at 618 – 620.
Accordingly, this ground of appeal fails.
Grounds 4 & 5 - there was a miscarriage of justice in that evidence of over- insurance was led from a witness and the primary judge erred in failing to direct the jury to completely disregard that evidence
The appellant's counsel's submissions
The submissions advanced by counsel for the appellant were to the following effect. The evidence of Mr Leigh as to the value of the house was inadmissible. He was called as an expert in fire investigation and his expertise as a valuer was not established. His evidence at Committal was that the maximum cost of rebuilding would be $150,000, whereas, at trial, he swore that the house would cost $100,000 to rebuild.
If it is not correct that Mr Leigh's evidence should have been excluded, the primary judge should have given the jury "strong directions" that his evidence be disregarded.
The respondent's counsel's submissions
The substance of the respondent's counsel's submissions was as follows. Mr Leigh was a private investigator specialising in the investigation of fires. He had a number of licences, including a Queensland Builder's Licence. He had owned a building company and had worked as a builder.
His opinion that the House was over-insured stemmed from his conclusion that it would only have cost $100,000 or $150,000 to rebuild the House. As a builder, Mr Leigh had the expertise to offer an opinion on the cost of rebuilding. His opinion that the House was over-insured was simply a calculation arrived at by comparing an undisputed fact, the level of insurance, with a figure arrived at through the application of his expertise.
His opinion about the House being over-insured was not admissible, but it was the only conclusion open, having regard to the cost of rebuilding. Accordingly, no miscarriage of justice occurred as a result of Mr Leigh's evidence about over-insurance.
The primary judge was not asked to give the direction now contended for by counsel for the appellant. The jury was directed that an expert's opinion did not have to be automatically accepted by the jury; that the jury could reject such an opinion; that what weight it should be given depended on various factors, including the expert's qualifications. These directions, coupled with the matters mentioned above, were sufficient to ensure that the jury did not proceed on the basis that they had to accept the opinion.
Grounds 4 & 5 – Consideration
As well as having a Queensland Builder's Licence, the uncontradicted evidence was that Mr Leigh held a "Real Estate Salespersons Licence". No objection was taken to his giving the expert opinion evidence now under consideration, no doubt because of his qualifications and experience. If objection had been taken, the prosecutor would have been afforded the opportunity of asking questions with a view to further establishing Mr Leigh's expert qualifications. The failure to object is reasonably explicable on the basis of a forensic decision not to emphasise the witness's qualifications or expertise. Consequently, the appellant is not able to ventilate the question of admissibility now, even if, which I do not accept, Mr Leigh's expertise was not duly established.[9]
[9]See eg., TKWJ v The Queen (2002) 212 CLR 127 at 135, 155 and 158 and Nudd v The Queen (2006) 80 ALJR 614 at 618 – 620.
There was a departure by Mr Leigh at trial from his evidence at the Committal hearing that the House could be rebuilt "for a maximum of $150,000". In cross-examination he said that it could be rebuilt for approximately $100,000. He observed that when he said "maximum", he had given himself "a bit of leeway". The jury were in a position to evaluate Ms Leigh's evidence and, as counsel for the respondent submitted, the primary judge had given appropriate instructions concerning expert evidence.
Counsel for the appellant placed reliance on R v Dyke,[10] in which it was held that the prosecution's assumption that as a result of the destruction of the appellant's house by fire, the insurer would automatically pay the insured sum to the insured, was erroneous. The policy, as in this case, was not put in evidence, and Fraser JA observed in his reasons that the mortgagee could have insisted on reinstatement or payment to it (Property Law Act 1974 (Qld), ss 91(3) and (4)) and that the insurer could also have insisted on reinstatement (Property Law Act 1974 (Qld), s 58). These points were made as part of a discussion which demonstrated that the evidence did not establish that the appellant and his wife, in whose name the policy had been taken out, did not stand to gain financially from the destruction of the insured property and any resulting insurance payment.
[10][2009] QCA 339.
Counsel for the appellant did not extract any principle of law from Dyke which supported the appellant's case, and the facts of Dyke bore little comparison to those under consideration. In Dyke, there were good reasons for concluding that the appellant had no motive or desire to destroy the subject property and that the expert evidence was incapable of excluding any hypothesis consistent with innocence.
The subject prosecution case was deficient in that it set out to establish insurance fraud without placing the policy of insurance before the jury with a view to showing the respective rights of the insurer, the insured, and the mortgagee. The prosecution case assumed, without attempting to prove, that in the event of damage to which the policy responded, the appellant would be entitled to payment of the amount for which the House was insured or that such amount (rather than the replacement cost of the House) would be available to the appellant for the purposes of rebuilding. As the policy was not in evidence, it was impossible to determine whether these assumptions were well founded.
However, of more relevance to the prosecution case than the insured's actual entitlements under the policy, was the appellant's understanding, however erroneous, of the nature and extent of those entitlements. It may be inferred from the appellant's answers to questions in cross-examination that his understanding coincided with that of the prosecution. And it may be that the existence of such a common understanding explained why the policy was not put in evidence.
In any event, it was not critical to the acceptance of the prosecution's alleged "greed" motive that the cost of rebuilding be shown to be less than the amount for which the House was insured. If the jury accepted that the appellant wanted the House demolished and replaced, it would have been open to them to accept the prosecution argument, as long as the part of the cost of rebuilding which the appellant anticipated he would have to bear was no more than he was able or prepared to spend.
This ground must be rejected for the above reasons.
Conclusion
None of the grounds of appeal have succeeded and the appellant's application for leave to appeal against sentence was abandoned. I would order that the appeal against conviction be dismissed and that the application for leave to appeal against sentence be refused.
FRYBERG J: I agree with the orders proposed by Muir JA.
I prefer to express no opinion about whether the motive of greed put forward by the prosecutor in his final address was within the case which he opened. The point was not raised by defence counsel at the trial and I agree with Muir JA that there may well have been sound tactical reasons for that. Moreover there is no suggestion that the conduct of the defence was in any way prejudiced by reliance upon what the prosecutor said in his opening. Nor was there any request for a redirection. Grounds two and three of the Amended Notice of Appeal are without substance.
The evidence establishing the expertise of Mr Leigh was certainly thin. However there was no objection to the admissibility of his evidence. Moreover that evidence was not challenged: defence counsel did not suggest it was wrong. The point therefore was not in issue. There is no reason why the evidence should now be characterised as unsatisfactory.
The applicant submitted that Mr Leigh's evidence at trial differed from that which he gave at the committal hearing. No such difference was proved. The only evidence on the question was this:
"Do you recall giving evidence at a committal proceeding, Mr Leigh?-- Yes.
Do you recall saying in answer to the question, these words - page 151, line 12 - 'You could have demolished what was there and rebuilt it for a maximum of 150,000. That was my opinion at the time. Nowadays it might be a bit different, but at that stage - it wouldn't be much more these days either for that size.'?-- I don't recall what I said, but when I said a maximum, I have given myself a bit of leeway there, yes.
But do you accept you said $150,000?-- If that's what you've got in front of you, I accept it, but I wouldn't know."
That does not prove what the witness said at the committal. There is no rule that in criminal trials defence counsel may give evidence from the bar table.
It is unnecessary to consider the purposes for which or occasions on which propensity evidence may be led on behalf of the defence.
Subject to the foregoing remarks I agree with the reasons for judgment of Muir JA.
APPLEGARTH J: I agree with the reasons of Muir JA and with his proposed orders.
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