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

1. 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.

2. As Peek J records, the appellant contended that the judge was obliged to make a finding about the previous attacks.  As I understood the appellant’s counsel, Mr Apps, his argument was that had such a finding been made it would necessarily have been to the effect that it was likely, or at least reasonably possible, that a person other than the appellant was responsible.

3. I do not accept either of Mr Apps’ premises.  In my view a wider range of findings in relation to that evidence was available to the judge.  But importantly it is sufficient to find that the judge was not required to reach a view about that material.  His decision rested on evidence going more directly to the two charges.

4. KELLY J:             I agree that the appeal should be dismissed.  I agree with the reasons of Peek J.

5. PEEK J.    Appeal against two convictions of arson.

6. The appellant appeals against two convictions of arson recorded by a District Court Judge after a trial by Judge alone.  The two subject fires occurred at the appellant’s home at Balhannah, the first on 22 May 2010 (count 1) and the second a week later on 30 May 2010 (count 2).

   The events leading up to the first subject fire on 22 May 2010

7. The appellant gave evidence that his home where he lived with his two sons, Tyler and Brayden, had been the target of revenge attacks including fires since Tyler’s 16^th birthday party at the house on 17 April 2010 when a large number of persons had attended, some uninvited.  There was some fighting and rocks were thrown on the house.  The police were called and attended.  A green Toyota Corolla parked in the driveway sustained minor fire damage to one of its rear tyres.

8. His Honour set out the events at the premises thereafter in detail.  A brief summary is as follows:

   ·On 19 April 2010 pesticide owned by the appellant was poured on a window sill and wall at the front of the house.  Only the appellant was home at the time.  Brayden, noticed it after having left the house for half an hour.  The police and the fire brigade were called.

   ·On 24 April 2010 at 10:40pm a neighbour noticed the green Toyota Corolla (which had been damaged on the night of 17 April 2010) to be on fire in front of the house.  The appellant was apparently asleep.  His sons and the girlfriend of Brayden were in the lounge room when alerted to the fire. 

   ·On 30 April 2010 a Holden Berlina parked in the carport was damaged by fire.  His Honour recounted: “The accused alerted his son Brayden and a visitor to noises outside.  They found motor bike straps were alight on top of the left-hand side rear wheel.  They heard a V8 motor in the near vicinity.  Brayden and the visitor left to see if that car could be seen or located.  The appellant stayed behind to look after Sarah Ritchie.  When Brayden and the visitor returned, they discovered the back left-hand wheel had material burning underneath it.  The items used in these fires were pulled from near the wheel and the police were called”.[1]

   ·On 1 May 2010 the Holden Berlina was destroyed in a substantial fire which also badly damaged the carport, nearby structures and the nearest room of the house, the appellant’s bedroom.  The fire was deliberately lit in one or two Sulo rubbish bins close to the car.  The appellant was the only person at home at the time of the fire.

   [1]    R v Overell [2012] SADC 52 [13].

9. After the fire on 1 May 2010 the house was left empty and the power was cut off.  The appellant was admitted to Glenside Hospital.  He had been under the psychiatric care of his general practitioner for depression since about 2000.  He took medication for depression and had an alcohol problem.  At about the time of Tyler’s party the appellant’s former partner had met someone else and the appellant felt “a bit gutted”.  At about that same time he had a panic anxiety attack while driving a truck in the course of his employment and did not return to work; he had stayed voluntarily at the Royal Adelaide Hospital for psychiatric evaluation. 

   The first subject fire on 22 May 2010

10. On the morning of 22 May 2010, the appellant had started the job of cleaning up the damage following the carport fire.  He was alone but in the early afternoon he was visited by a friend Ms ZD, who stayed for a few hours and left between 3:00pm and 4:00pm.  She stated that the appellant was acting normally but “within the twenty minutes before she left he was acting strangely, losing his balance, looked dizzy, slurred his speech and his talk made no sense”.[2]  The appellant stated that after she left he was sleeping when the fires started.  He had been drinking.

    [2]    R v Overell [2012] SADC 52 [23].

11. Mr and Mrs Overell senior arrived at the appellant’s home, as had been arranged, at about 4:55pm.  They heard the smoke detector alarm and could see flames coming through the window of bedroom three.  Mr Overell broke in through a window because the front door was locked. 

12. He and Mrs Overell located the appellant in the back lounge room and they took him out the front where he was attended to by the ambulance officers.  Much of the house was destroyed and it was uninhabitable thereafter.

13. The uncontested evidence was that:

    ·The appellant was the only person known to have been present at the time that the fire must have been lit.  (His evidence was that he was fast asleep in the back lounge).

    ·Ms ZD left between 3:00pm and 4:00pm and Mr and Mrs Overell senior arrived at about 4:55pm.  The forensic evidence was that the fire had been burning for quite some time by the time that the appellant’s parents arrived.  As his Honour observed, “it was a slow developing and spreading fire that had its seat in bedroom three.  A lot happened before 4:55pm in any event”.[3]

    ·There was no evidence that an accelerant was used.

    ·There were two seats of fire, one in bedroom three and one in the dining room, thus requiring actual entry into the house.

    ·There had been no attacks on the house since 1 May 2010, during which period it had been unoccupied.

    ·The appellant said that, particularly in the light of the previous events, he was strict about security, locking doors and windows.

    ·The front door was locked when the appellant’s parents arrived.

    ·There was no sign of forced entry.

    ·No intruder had been seen to enter and leave the house.

    [3]    R v Overell [2012] SADC 52 [37].

14. The Judge summarised the evidence of the appellant as follows:[4]

    [53]The accused says that he went into a deep sleep.  He says that he often had what he referred to as a “nanna nap” in the mid to late afternoon.  He says on this occasion he fell asleep because of a combination of the medication he was on and the couple of beers he had throughout the day (T794).  He said the smoke did not wake him, rather it was his mother screaming out to him.  He said there was smoke and his mother and father took him outside.

    [4]    R v Overell [2012] SADC 52.

15. His Honour concluded on count 1:[5]

    [54]I reject the suggestion that this fire was lit by a person or persons unknown.  I find that the accused lit the fire in bedroom three and the dining/eating area.  I would have reached the same conclusion had the fire in bedroom three been the only fire.  I make it plain that I reject the evidence of the accused on this count.  In my view, the conclusion of guilt is not only a rational assessment of the evidence, but it is the only rational assessment open.  Also, in making this assessment, I have taken into account the accused’s good character and standing in the community.

    [55]In reaching this conclusion I also have not overlooked that there is no obvious reason or motive for him to set fire to his own house.  In fact, as noted, he was house-proud and had done much to create a house and home for his sons when they came to visit.  However, the evidence is replete with references to the accused’s physical, emotional and psychiatric problems, including many admissions to Glenside Hospital.  I do not need to find a motive.  The explanation for his conduct may lie in his psychiatric and psychological make‑up.

    [5]    R v Overell [2012] SADC 52.

    The second subject fire on 30 May 2010 (count 2)

16. The second subject fire occurred on 30 May 2010 in the rear lounge room.  The appellant’s defence was that he had been drinking heavily and fell asleep on one or two bean bags which caught alight; the fire probably started due to him having fallen asleep with a lit cigarette.

17. His Honour subjected the evidence in relation to count 2 to very close examination.  He found aspects of that evidence “ridiculous” and “patently incorrect”;[6] he was entitled to do so.  He rejected the appellant’s version of an accident and concluded beyond reasonable doubt that he had deliberately lit the fire.

    [6]    R v Overell [2012] SADC 52 [65].

    The arguments on appeal

18. On appeal the appellant was represented by experienced counsel.  At the appeal counsel stated that, “I don’t wish to make any submissions about the law.  I’ve read what my learned friend says on the law and I don’t wish to differ”.

    Lack of reasons?

19. The appellant, in little more than a glancing reference, suggested that the Judge should in a few instances have given more detailed reasons than he did as to particular findings of fact.  I consider that his Honour’s reasoning process was fully exposed and the appellant’s right of appeal in no way compromised.  I conclude that the reasons were entirely sufficient in the circumstances.

    Good character, attachment to the house, asserted lack of motive and abnormal mental state

20. The appellant submitted that the Judge gave insufficient weight to the good character of the appellant, the evidence that he was attached to the house (and had made substantial improvements to it) and an asserted lack of motive.

21. The Judge specifically referred to all of the above evidence and took it into account.  I agree with his conclusion that the cumulative effect of this evidence did not preclude a finding that the appellant was guilty of both offences.  His Honour was correct to take the view that an absence of evidence of motive is not the same thing as proven absence of motive.

22. 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?

23. 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

24. 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.

25. Counsel for the appellant submitted that the initial error (if that it be) in suggesting that there were three seats of fire indicated a level of incompetence that should have led his Honour to place no weight on any of the evidence of Ms Walton.  I disagree.  The initial expert opinion was given on the basis of predicated facts (an absence of interference after the fire started in the major seat of fire in the dining room) that later proved incorrect.  I consider that his Honour was justified in giving weight to the rest of the forensic evidence.  This was not unimportant.  If there was only one seat of fire in bedroom three, that allows for the hypothesis that a person may have quickly thrown burning material through the bedroom window and thus started the fire.  However, if there were a second seat of fire in the dining room (which had no external window) the person would have actually entered the house and set two separate fires, which hypothesis might be thought less plausible given that the appellant was inside and any intruder might have thought him likely to resist.

    The advantage of the Judge in seeing and hearing the witnesses

26. It is trite to say that the appeal court needs to make allowance for the advantage of the trial Judge in seeing and hearing the witnesses.  In cases where much turns on the interpretation of objective evidence that advantage might be relatively small.  However, in the present case the appellant gave lengthy evidence and his credibility was a critical matter.  One cannot dismiss “the subtle influence of demeanour” in such circumstances.

    The previous “attacks” on the property

27. Counsel for the appellant submitted that the Judge erred in failing to make a finding as to the identity of the person(s) responsible for the previous “attacks” on the property.  I consider that he did not err in refraining from attempting that task which may well have been impossible.  To be blunt, his Honour was not required to make a positive finding of fact that the appellant had nothing to do with any of those incidents.

28. 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

29. 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.

1. 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.

2. 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.

3. 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).

4. 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. 

5. The appeal should be dismissed