R v Olig

[2002] NSWCCA 249

CITATION:	R .v. OLIG [2002] NSWCCA 249
FILE NUMBER(S):	CCA 60016/01
HEARING DATE(S):	16 April 2002
JUDGMENT DATE:	16 April 2002
PARTIES :	Shane OLIG - Appellant Regina - Respondent
JUDGMENT OF:	Mason P at 1; Barr J at 2; McClellan J at 43

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70016/00
LOWER COURT JUDICIAL OFFICER :	Adams J

COUNSEL :	Appellant in person Mr P.E. Barrett for the Crown
SOLICITORS:	Appellant in person S.E. O'Connor for the Crown
CASES CITED:	Chamberlain v The Queen (1984) 153 CLR 521 Shepherd v The Queen (1990) 170 CLR 573 Neal v The Queen (1982) 149 CLR 305
DECISION:	See Judgment at Paragraph 41

60016/01

Mason P
Barr J
McClellan J

16 April 2002

Regina v Shane OLIG

Judgment

1 Mason P: I invite Barr J to give the first judgment.

2 Barr J: The appellant, Shane Olig, appeals against a conviction for manslaughter entered in the Supreme Court and seeks leave to appeal against the resulting sentence, namely a term of twelve years with a non-parole period of eight years.

3 The Crown case was as follows. By Saturday 24 July 1999 the appellant had been in a domestic relationship with the deceased, Annette Openshaw, for a substantial number of years. At some time not long before that day they ceased to live together. On 24 July 1999 the appellant went to the deceased’s house with a can of petrol and set fire to it. In the resulting fire the deceased was killed. The appellant left the house while the deceased was inside and drove quickly away. Later on the deceased's body was found in the kitchen. Medical evidence established that she died of smoke inhalation.

4 The Crown called several witnesses who were neighbours of Miss Openshaw or who lived nearby. One of them, Mr Devine, heard a banging sound and then the sound of breaking glass and a loud thud which sounded to him like the deceased's front door being closed. He looked out and saw smoke billowing out of the deceased's house and the appellant smashing one of the windows. The appellant was saying, "Annette, get out" and, "Ray, (referring to Mr Devine) call the police". Two other neighbours, Mr Skillman and Mr Kingsbury, awoke to sounds of glass smashing. Mr Skillman heard somebody call, "you bitch". Mr Kingsbury heard that the appellant angrily call out, "Annette, you bitch". Mr Kingsbury saw the house on fire and the appellant coming out of the front door, getting into his car, reversing and driving away.

5 As the Fire Brigade and the police were arriving the appellant telephoned another witness, Ms Jones, and said, "I have done it this time". He said that he was bleeding and had cuts to the arms. He sounded upset and his speech was slow.

6 Mr Devine spoke to the appellant on the telephone and the appellant said, "I've done it this time" or, "I've done it now". He went on to describe his bodily condition and continued, "I put fuel down the hallway and lit it... Tell me, is she OK? If she isn't, I'll kill myself".

7 Another witness, Ms McGregor, said that in February 1999, some five months before the fire, the appellant moved out of the deceased's house and told her, Ms McGregor, in a very distressed state that he believed that the deceased was having an affair with another neighbour. There was other evidence to suggest that that complaint was true.

8 Another neighbour, Ian Bailey, said that a few months before the fire the appellant told him that if he was considering knocking his wife off he would burn the house down and plead diminished responsibility and get out of it that way rather than do life.

9 Murder was left to the jury on the basis of the intention to kill or do really serious bodily injury or on the basis that the appellant saw the probability that the death of the deceased would result but deliberately lit the fire anyway. The alternative verdict of manslaughter was left on the basis that this was an unlawful and dangerous act of the appellant which caused the death of the deceased. The jury in due course acquitted the accused of murder and convicted him of manslaughter.

10 His defence at the trial involved a concession that he took to the deceased’s house a jerry can containing petrol. He said, and repeated in this Court, that he had taken the jerry can and its contents to the house at the request of the deceased because the jerry can she had formerly used had been damaged. A conversation took place between the two of them about money and the appellant asked for the return of certain of his money and some papers. The deceased told him that she had spent the money. He did not believe her and threatened to burn down the pergola; that is to say, he did not threaten to burn down the house. He took the jerry can and went to the pergola and poured petrol over the posts. In that way some petrol splashed on him. That was an asserted answer to a piece of evidence in the Crown case against him. He took the jerry can back inside and the conversation resumed. The deceased asked him why he had done what he had done and why he did not burn the house down as well. The appellant said that he would not do such a thing, and that the deceased took the jerry can and splashed petrol on the floor at the point where the hallway joined the kitchen. He said that all he wanted was his money, his birth certificate and some motor vehicle ownership papers. She said that she would get those things for him. She dropped the can of petrol on the floor and went into another room. When she emerged she had something that was burning. She said, "Here's your precious money and piece of paper" and something just went flying over to the petrol where it caught on fire. The deceased was in the hallway at the time. The appellant ran to the front door. There was smoke in the house. The appellant went back inside the house, calling out to the deceased trying to find where she was. He went to the bathroom and tried to kick the door but the heat became unbearable and he was obliged to escape through a window.

11 In his remarks on sentence the learned sentencing judge referred to the account put forward by the appellant, who gave evidence on oath. His Honour observed that the evidence had been rejected as untrue. His Honour said that the appellant had constructed an explanation for the relevant events which was in some senses rather cunning but was so unreal as virtually to demonstrate its falsity.

12 The appellant has represented himself throughout the preparation of his appeal and during the conduct of the appeal. He has made written grounds of appeal and written submissions and has supplemented his written submissions with oral submissions.

13 The first ground of appeal is that the trial judge made errors in the summing up. The ground is left in that bald fashion and nothing has been said in written or oral submissions to explain precisely how it was that his Honour erred.

14 An examination of the summing up shows that his Honour directed the jury in an appropriate way. His Honour gave full and proper directions on the necessary and conventional matters which a trial judge must cover. His Honour dealt appropriately with his explanation of the functions of the judge and jury, the role of counsel and their arguments, unanimity of a jury verdict, and the need for the jury to confine its attention to evidence given at the trial, the assessment of witnesses’ evidence, the presumption of innocence and the burden of proof. His Honour also directed the jury appropriately about the elements of the crime of murder as it applied to this case and of manslaughter as it applied to this case.

15 The applicant had the good fortune to be represented by one of the counsel most experienced in this State in the conduct of criminal trials on behalf of accused persons, a member of Senior Counsel. During the summing up, in accordance with the usual invitation to suggest or apply for further directions, counsel raised a number of matters.

16 Although some of the evidence adduced by the Crown was circumstantial in nature, it was not what may accurately be called a circumstantial case. One possible view the jury might have taken was that certain admissions the accused made to the police were true and, of themselves, were sufficient to justify a finding of guilt. The circumstantial evidence which might be said to support that evidence was as I have summarised, namely the observations of the neighbours about what they saw the accused doing at the time the fire started and about the things he said to them.

17 Notwithstanding that this was not strictly a circumstantial case counsel, with a great deal of care, asked the trial judge to identify what he described as "intermediate facts": see Chamberlain v The Queen (1984) 153 CLR 521; and Shepherd v The Queen (1990) 170 CLR 573. His Honour correctly, in my view, declined to categorise any fact as intermediate and having to be proved beyond reasonable doubt.

18 Defence counsel then raised some discussion about the directions, whether and which of the acts of the accused was unlawful so as to draw a distinction between his admitted setting fire to the pergola and what the Crown asserted was his setting fire to the house. At the end of the summing up counsel raised the question whether his Honour had instructed the jury that so far as manslaughter was concerned the jury had been informed of the need for the Crown to prove that the appellant's act was objectively dangerous. As it turned out, his Honour had given such a direction.

19 A reading of the whole of the summing up and the limited way in which experienced counsel responded to it shows, in my opinion, that the summing up contained every direction which it was necessary to give to the jury in order to produce a fair verdict according to law.

20 I may observe in addition that his Honour identified for the jury the issues which appeared to him to arise at the trial and drew their attention to the evidence bearing upon those issues and to the arguments of counsel about those issues. In my opinion, there is no substance in the first ground of appeal.

21 The second ground of appeal complained that his Honour wrongly allowed tape-recorded evidence to go to the jury. The first complaint was made about a videotape that the police made when they attended the premises. As I have said, the defence case was that the appellant took a new jerry can there containing petrol, at the request of the deceased, because her old jerry can was damaged. It was asserted in this Court that the police so arranged objects which they videoed as to conceal the presence of the old jerry can. Implicit in this assertion was a submission that if the jury had been able to see the old jerry can in the videotape they would have been more likely to regard as true the appellant's evidence about why he took the jerry can to the house. It is difficult to see what difference the rejection of the videotape would have made. The tape that the jury saw showed no old jerry can. If it had been rejected, the jury would have been in precisely the same position. I think that there is no substance in this complaint.

22 The second complaint about tape-recorded evidence was of a conversation that took place on 24 July. The appellant was injured after he left the house. He complained of cuts to his wrists that may have resulted from his smashing the window as described by the neighbours. He was taken to hospital. Whilst he was there, Det Jones visited him. After introducing himself, Det Jones made to ask the appellant questions about the fight. Early in the interview Det Jones told the appellant that Miss Openshaw had died and there followed this question and answer:

“Jones: I'm sorry to have to tell you this, but obviously we are going to need to speak to you about the circumstances of what's happened this morning. Appellant: She wasn't supposed to die. Nobody was supposed to die.”

23 There follows in the transcript a notation that the appellant was crying as he gave that answer. A few questions later the appellant was cautioned in the usual way and responded by saying, among other things,

"I'm not talking to nobody no more. I talk to no one".

24 The questions continued and the appellant gave answers. I shall refer later on to the form of the answers.

25 Defence counsel objected to the tender of the tape and the transcript and that objection was successful. His Honour regarded the appellant as a man who was himself injured and shocked at the news of the death of Miss Openshaw and not being in any fair position to reconsider the initial refusal that he had made to be interviewed about the matter. His Honour therefore decided not to admit the evidence.

26 On the same day, a second conversation took place between another police officer, Detective Taylor, and the appellant. The tender of the videotape and a transcript of that interview were also objected to, this time unsuccessfully. The basis of the objection appears to have been the statutory rule about the time within which a person may be interrogated by police officers after having been taken into detention. No ground of appeal challenges his Honour's judgment deciding to admit the evidence of that tape and the transcript of what was said. The challenge that is raised here is to the conversation with Det Jones. As I have said, the evidence was kept out, defence counsel was successful. However, when the second interview to which I have referred was allowed into evidence, defence counsel changed his mind and withdrew his objection to the first, the one with Det Jones. The appellant complains about defence counsel's action in doing so.

27 A number of complaints have been made about the conduct of defence counsel in uncomplimentary terms, one of which was that counsel was working for the Crown. There seems to me to be good reason, by reference to the text of the conversation, why counsel, having failed to keep out the Taylor interview, would want to have the Jones interview put into evidence. In the Taylor interview the appellant said a number of things about the fire, including this:

”The investigation - I started the fire and look what I've done. She killed me. She stuffed my whole life up. She lied to me from the beginning. If I could start all over again, maybe I would have said, look, Shane, leave her alone. Here, here's a free ticket, do whatever you like. I go to see my mum and say, look, that's it, end of story but”.

28 There are other passages in the interview which the jury were likely to use in coming to a decision that the accused deliberately set fire not just to the pergola but to the house.

29 By way of contrast, the Jones interview put forward a different reason why the fire started. I have already referred to the accused's remark there recorded, that nobody was supposed to die. In addition, the appellant said this:

“I went in there with the petrol and I was playing with it and I said `Look Annette, I'll burn this whole house down' and she said `No, you wouldn't do it', and I lit up a cigarette and it caught on fire all down and it just went ... she bolted into the bathroom and before I could get to the front door. The smoke had just gone straight up with the house and everything. Jones: Look, okay. Appellant: That's how I got burnt so I ended up - I had to go through the bedroom window. I'm screaming out to her like the - and she is saying `Shane, I'm in here' I said `Okay, you right, yeah, let's get in here', but she wasn't out, was she, she was in the bloody damn house".


That account was, of course, an exculpatory account consistent with the defence case at trial. There is every reason, it seems to me, why counsel, though preferring to keep that evidence out in the first place, would want it in once the Taylor interview was received into evidence in order to temper or provide an alternative explanation for the statement of facts set out in the Taylor interview. In my opinion, there is no substance in the second complaint made about tape-recorded evidence.

30 The third complaint made about tapes is that the tapes that went to the jury were, as the appellant put it, "doctored". As the transcript shows, there was discussion between the Crown Prosecutor and defence counsel and by arrangement between them the original tapes were taken and material which counsel agreed should not go before the jury was excised. The transcripts were treated in the same way. In my opinion, it appears that what was happening was perfectly proper and I see no evidence of failure in defence counsel properly to consider the interests of the appellant. I see no reason to suppose that the excision of any material from any tape or transcript produced any miscarriage of Justice. In my opinion, there is no substance in the second ground of appeal.

31 The third ground of appeal complains about lies told to the accused by the police. His defence was that when the police spoke to him in the first place the deceased was already dead and the police knew it. They did not tell him that she was dead. They told him that she was in an ambulance, but that he could not speak to her. Believing that she was still alive, the appellant told the police a number of lies in order to protect her and himself assume responsibility for something that he had not done, namely setting fire to the house. If he had known that the deceased was already dead, he would not have said such things. In further support of that submission he submitted that even the police experts changed their evidence about their opinions of the location of the seat of the fire in order to accord with things put into the mouth of the appellant himself.

32 It seems to me that these were all matters that could have been dealt with at trial. I have already referred to the attack that has been made on defence counsel and to what seems to me the exemplary way in which defence counsel went about his work. No notice was given to the Crown of the intention to attack defence counsel in this way. The appellant has not called defence counsel to say anything about these assertions. I would infer that the evidence of defence counsel would not have assisted the appellant in this appeal. In my opinion, there is no substance in this ground of appeal.

33 The next ground of appeal relied upon the failure of defence counsel to make use of what is said to have been a suicide letter written by the deceased. A copy of the letter was put before this Court and the appellant informed the Court that the original of the letter had been placed in his letter box some two or three months before the fire. It is by no means clear that the letter is complete. So much of it as the Court has consists of two pages. The Court has been informed that it is in the deceased's handwriting. It is not difficult to understand why defence counsel would not have wished a copy of this letter to go to the jury. It upbraids the appellant at length and in detail. It accuses him of having treated the deceased badly since 1995, of being selfish, egocentric, a liar and violent. It says something about the future. The beginning of the second of the two pages this Court has has the writer saying this:

“I won't be around to have to put up with any of your whingeing or violent mood swings or complaints or blame for your gambling”.

A little later,

"but I will be in gaol soon, again, thanks to you, although if I die, you will be responsible for my funeral".

The portion of the letter which this Court has ends

"Don't contact me again. You really made sure there was nothing left for me now or in the future, thanks again".

34 The defence case, of course, was that the deceased herself had set fire to the house and so might be said to have committed suicide, if not to have accidentally killed herself. Thus evidence of a contemporary suicide note would have been of substantial importance in the case. However, as I have observed, this letter was two or three months old by the time of the fire and might therefore have been a very poor indicator of the state of mind of the deceased at the time of the fire.

35 Even if it were contemporary, the letter does not seem to me to be a suicide letter in fact. There is only one reference to death, namely

"although if I die, you will be responsible" et cetera.

There are references to the future which are inconsistent with any intention on the part of the writer to commit suicide, most of all, I think the last injunction,

"Don't contact me again".

It is not difficult to see why defence counsel would not have wished that letter to go before the jury. I think that there is no substance in this ground of appeal.

36 The last ground of appeal was that a witness called Ian Bailey who apparently suffered from schizophrenia, made two statements to the police. It is apparent from the cross-examination of Mr Bailey that counsel knew about the two statements, had seen copies of them. It is apparent that counsel was able to and did make whatever use was appropriate of the fact that Mr Bailey had made a second statement. In my opinion there is no substance in this ground of appeal. That being so, I would dismiss the appeal against the conviction.

37 Only two grounds of appeal were raised against the sentence, the first asserting, in effect, that the sentence was manifestly excessive and that there was a lack of parity with other cases. It does not seem to me that the sentence was, on its face, excessive. It was a severe sentence but it seems to me that it was within the range of his Honour's proper sentencing discretion. The criminality for which his Honour was obliged to sentence the appellant was constituted by his deliberate taking of an accelerant to the house and a deliberate firing of the house. His Honour expressed himself aware that lighting the fire was both seriously unlawful and extremely dangerous. His Honour found that an aggravating feature of the crime was that the appellant broke into the deceased's house before lighting the fire. His Honour also found that the appellant went to the house with the intention, at least, of burning the pergola.

38 Understandably, since the appellant has represented himself, no comparable cases have been put before the Court. However, it is well-known and often remarked that sentencing for manslaughter is an exercise of the most difficult kind and that comparable sentences are not necessarily of a great deal of assistance to sentencing judges or to courts hearing applications for leave to appeal against sentences. Nothing about the sentence suggests to me that it is so long as to be appealably long.

39 His Honour was invited, I think faintly, by counsel to consider whether there were special circumstances such as would justify the fixing of a parole period which exceeded one quarter of the head sentence. His Honour expressly found that there were no such circumstances, but then sentenced the appellant to a head sentence of twelve years with a non-parole period of eight years. In so doing, his Honour erred, but that error of one year was to the benefit of the appellant. It is not appropriate, since this is not a Crown appeal, for this Court to interfere with the sentence on that ground: Neal v The Queen (1982) 149 CLR 305.

40 There is a second ground of appeal against sentence, expressed in a letter of 4 September 2001 written by the appellant to the Registrar, to the effect that no allowance was made for the fact that he was forced to enter a not guilty plea to a charge of murder. Asked to say what he intended by that ground of appeal, the appellant said that he did not understand it. I am not sure what is meant. It does not seem to me that the appellant was forced to plead not guilty to the charge of murder. As I say, he was acquitted of that charge. There is no substance in the second ground of appeal.

41 I would propose the following orders. The appeal against conviction is dismissed. Leave to appeal against sentence is granted, but the appeal is dismissed.

42 Mason P: I agree.

43 McClellan J: For my part, I do not believe it necessary to draw any inferences to the evidence which defence counsel could have given on the appeal, and that I would not do so, but for this matter I agree with Justice Barr and the orders that he proposes.

44 Mason P: The orders of the Court will be as indicated and the Court will now adjourn.

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