R v Overell - [2013] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v OVERELL
[2013] SASCFC 52
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Peek)
14 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS SHOWING STATE OF MIND - MOTIVE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appellant charged with two counts of arson - the two subject fires occurred at the appellant's house - the appellant gave evidence that his house had been the target of revenge attacks and that this was the cause of the first fire - the appellant asserted that the second fire was caused by him accidentally - the appellant was convicted of both counts after a trial by Judge alone.
Whether the trial Judge gave insufficient reasons - whether the trial Judge gave insufficient weight to an asserted lack of motive - whether the verdicts of guilty were unreasonable
Held (Peek J; Vanstone and Kelly JJ agreeing): Appeal dismissed - the Judge's reasons were sufficient - the Judge was correct to conclude that while a motive for the offending could not be established by the evidence, an absence of evidence of motive is not the same thing as proven absence of motive - De Gruchy v The Queen (2002) 211 CLR 85 referred to - the verdicts of guilty were not unreasonable - the trial Judge was justified in giving weight to some of the evidence of the expert witness despite the exposure of an error in the initial expert opinion as the number of seats of fire relating to count 1 - allowance needs to be made for the trial Judge's advantage in seeing and hearing the witnesses - the appellant gave lengthy evidence and his credibility was a critical matter - the Judge was not required to make a finding as to the identity of the person(s) responsible for previous attacks on the house in order to negate the hypothesis that someone other than the appellant was responsible for the fire the subject of count 1 .
M v The Queen (1994) 181 CLR 487; De Gruchy v The Queen (2002) 211 CLR 85, applied.
R v Overell [2012] SADC 52, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"motive"

R v OVERELL
[2013] SASCFC 52
Court of Criminal Appeal: Vanstone, Kelly and Peek JJ

VANSTONE J: I agree that this appeal should be dismissed. With one reservation I agree with the reasons of Peek J for so finding. The reservation relates to the topic of the lack of findings by the trial judge as regards responsibility for the previous attacks on the property. This was a matter raised in grounds 1.8 and 1.9 of the appeal notice.
As Peek J records, the appellant contended that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Overell

Details

AGLC: R v Overell [2013] SASCFC 52
Case: [2013] SASCFC 52
Decision Date: 14 June 2013

CaseChat Overview and Summary

The appellant, R v Overell, was convicted by a judge alone on two counts of arson relating to fires at his own home. The appellant had given evidence suggesting the first fire was a result of revenge attacks and the second was accidental. The appeal concerned whether the trial judge provided sufficient reasons for the convictions, whether insufficient weight was given to the asserted lack of motive, and whether the guilty verdicts were unreasonable.

The court was required to determine if the trial judge's reasons for conviction were adequate, if the absence of established motive for the arson offences was given appropriate consideration, and if the verdicts of guilty were reasonably open on the evidence presented. The court also considered whether the trial judge was justified in relying on certain expert evidence despite an identified error, and whether the judge was required to definitively identify another party as responsible for previous attacks on the house to negate the appellant's hypothesis for the first fire.

The appellate court, comprising Vanstone, Kelly, and Peek JJ, dismissed the appeal. It was held that the trial judge's reasons were sufficient. The court affirmed that an absence of proven motive is distinct from a proven absence of motive, referencing the principles in *De Gruchy v The Queen*. The judge was entitled to consider the appellant's mental state and alcohol consumption as potential, albeit unproven, reasons for the offending, rather than treating them as evidence of motive. The court found the guilty verdicts were not unreasonable, noting the trial judge's advantage in assessing witness credibility, particularly the appellant's extensive evidence. The judge was not obligated to identify another perpetrator for previous attacks to negate the appellant's hypothesis regarding the first fire. Furthermore, the court found the judge was justified in giving weight to the expert witness's evidence concerning the seats of fire, despite a minor correction.

Orders

Orders of the court

Held (Peek J; Vanstone and Kelly JJ agreeing): Appeal dismissed - the Judge's reasons were sufficient - the Judge was correct to conclude that while a motive for the offending could not be established by the evidence, an absence of evidence of motive is not the same thing as proven absence of motive - De Gruchy v The Queen (2002) 211 CLR 85 referred to - the verdicts of guilty were not unreasonable - the trial Judge was justified in giving weight to some of the evidence of the expert witness despite the exposure of an error in the initial expert opinion as the number of seats of fire relating to count 1 - allowance needs to be made for the trial Judge's advantage in seeing and hearing the witnesses - the appellant gave lengthy evidence and his credibility was a critical matter - the Judge was not required to make a finding as to the identity of the person(s) responsible for previous attacks on the house in order to negate the hypothesis that someone other than the appellant was responsible for the fire the subject of count 1 .

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant criticised the reference by the Judge to the appellant’s mental problems. In my view that criticism was without basis. His Honour did not in any way treat such evidence as positive evidence of motive (which would have been unjustified here).Rather, his Honour referred to this matter as illustrative of the fact that although there was no positive evidence of motive, there was also no proven absence of motive in the sense of a proven absence of any reason why the appellant might have committed the crime; one reason he might have committed the crime was due to the influence of his abnormal mental state. In De Gruchy v The Queen, Gaudron, McHugh and Hayne JJ explained:[7][29]Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.[30]The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of “positive significance”, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive. (Emphasis added)[7] (2002) 211 CLR 85, 93. See generally 92-94 [28]-[32].Were the convictions unreasonable? The real gravamen of the appellant’s case was that the verdicts were unreasonable in that there was insufficient evidence to negate all rational hypotheses of the innocence of the charges. Both parties were agreed that the Court is to proceed according to the precepts in M v The Queen[8] and I do so.[8] (1994) 181 CLR 487.The seats of fire His Honour extensively reviewed the forensic evidence as to the seats of fire. The expert, Ms Walton, had originally been of the view that there were three seats of fire for the fire on 22 May 2010, one in bedroom three and two in the dining room. However, it became apparent from the evidence of the appellant’s father that his innocent movement of material in the dining room, after forcing entry through the window, gave a false impression of a minor seat of fire when in fact there was only one seat of fire in the dining room (as well as the one in bedroom three). His Honour concluded:[9][46]I find there are two fire seats, bedroom three and the dining table. The fact that one area of burning was much greater than the other may mean they were lit at different times or that the different materials ignited at different temperatures and/or burned at different rates.[9] R v Overell [2012] SADC 52.

Decision

Reasons for decision

PEEK J

Of course, the appellant was entitled to the presumption of innocence and the Judge was not permitted to assume that the appellant did have something to do with any of those incidents. Further, the appellant was entitled to hypothesise that someone (not the appellant) who was associated with those previous incidents may have been responsible for the fire on 22 May 2010 and to require the prosecution to negate that hypothesis. But that does not equate with the proposition that the appellant was entitled to start with a positive factual finding that such a person was responsible for that fire. Further, in the circumstances of this case it was open to the Judge to find that that suggested hypothesis (and every other hypothesis other than the guilt of the appellant) had in fact been negated. Conclusion Counsel for the appellant also presented a plethora of what might be called “jury points”. Some were fair points but they had been presented to the Judge at trial and taken into account. Some of the points depended upon appealing to arguments of logic or probability as to what the reasonable person in the position of the appellant would or would not have done. In my view, his Honour was not disentitled from taking into account that the appellant had mental problems, was taking medication for depression, and drinking a large amount of alcohol on the relevant occasions and therefore not necessarily conforming with reason or logic. In any event, I have considered all of the points made and agree with the approach and conclusion of the Judge. In circumstances where the Judge has given full reasons, I see no need to dwell on these matters further. Having carried out the review required by M v The Queen,[10] I am firmly of the view that the verdicts are not unreasonable in all of the circumstances. [10] (1994) 181 CLR 487. Finally, I might observe that the matters of count 1 and count 2 were dealt with entirely separately by his Honour who directed himself that the evidence on the respective counts was not cross-admissible. In my view, if his Honour had first separately considered the evidence relevant to count 1 and found that charge proven beyond reasonable doubt, he could then have used that evidence and that finding in his consideration of count 2. (I add that in the circumstances of this case, it would not have been permissible to start with count 2 and reason back to count 1). However, counsel for the appellant makes no complaint that his Honour dealt with the matters entirely separately and there was apparently no application for severance of the counts. It is unnecessary to make any further comment. The appeal should be dismissed

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.