R v Pearson

[2000] NSWCCA 149

Reported Decision: 114 A Crim R 80

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Pearson [2000] NSWCCA 149
FILE NUMBER(S):	CCA 60324/99
HEARING DATE(S):	01/05/2000
JUDGMENT DATE:	13 June 2000
PARTIES :	Regina v William Edward PEARSON
JUDGMENT OF:	Dunford J at 1-4; Foster AJA at 5-36; Smart AJ at 37-39

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	94/11/0847
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	D C Frearson for the Crown S J Odgers for the Appellant
SOLICITORS:	S E O'Connor for the Crown John Bettens & Co for the Appellant
CATCHWORDS:	Appeal against conviction - did dishonestly destroy property with a view to making a gain - possibility of spontaneous combustion or electrical malfunction - failure to give directions to the jury - failure to discharge jury - inadvertent contact of solicitor with two members of the jury - failure to disclose contents of an MFI.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Chamberlain v The Queen, (1983) 72 FLR 1 Elfar v Tier, unrep, NSWCCA 9 October 1995 Webb v R; Hay v R (1994) 181 CLR 41
DECISION:	The appeal must be upheld, the conviction quashed and a new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

No 60324/99
DUNFORD J
FOSTER AJA
SMART AJ

Tuesday, 13 June, 2000

REGINA -V- WILLIAM EDWARD PEARSON

JUDGMENT

1 DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgments of Foster AJA and Smart AJ, and for the reasons given by Foster AJA I agree that the trial miscarried and that the appeal should be upheld and a new trial ordered.
2 Initially I was inclined to the view that, having regard to the fact that it was a second trial, that it had been a long trial (21 days) with a break in the middle for the appellant's father's funeral, and that the jury had already been deliberating on the Friday for over 4½ hours, her Honour was correct in not disclosing the contents of MFI 46 and in refusing the application by defence counsel to discharge the jury on the ground that if the jury's verdict had been an acquittal, the time taken by the trial would not have been wasted, there would have been no appeal, and the only subsequent proceedings would have been the possible contempt proceedings against Ms Hirata; but on reflection I have concluded that, attractive as that approach may have seemed at the time, it was not appropriate.
3 We do not know what, if anything, was in the envelope, and we do not know whether the approach by Ms Hirata to the juror was an attempt to improperly procure a discharge of the jury, or an attempt to improperly procure an acquittal. If the approach had led to an acquittal, it would have been an acquittal to which the appellant would not have been entitled, being improperly obtained; and accordingly I agree that her Honour was faced with a situation where there was only one course to be taken, namely the discharge of the jury.
4 Like Smart AJ, I would like to reserve for further consideration in an appropriate case, whether if an accused was a party to an attempt to improperly influence a jury and was subsequently convicted, he or she would in that situation be entitled to a new trial.

5 FOSTER AJA: This is an appeal by William Edward Pearson against his conviction on 31 May 1999, on a charge pursuant to s. 197(b) of the Crimes Act 1900, that he, on 18 September 1992, at Coogee in the State of New South Wales, did dishonestly, with a view to making a gain for himself, by means of fire destroy property, namely, Coogee Bay Smash Repairs at 260 Coogee Bay Road. He had been indicted on this charge on 22 April 1999 before Latham DCJ at the Sydney District Court and was found guilty by the jury.

6 The appellant was the owner of the business, Coogee Bay Smash Repairs, and the prosecution case alleged that on 18 September 1992, in order to benefit from an insurance policy in relation to the business, he deliberately started a fire in the premises. There was no dispute that the fire commenced sometime before 7.30 pm on that day and that the appellant had left the premises shortly before the fire was noticed. He was the last to leave the premises. The Crown relied upon expert evidence pointing to the fire having been deliberately lit. Reliance was also placed upon evidence that the business was in financial difficulties, especially with regard to a need to construct, within a fairly short space of time, a spray painting booth, for use in connection with the business. There was also evidence that the appellant was in dispute with the landlord. On behalf of the appellant it was asserted that he was not responsible for the fire and that there were reasonable grounds for assuming an accidental cause. Expert evidence to this effect was called on behalf of the appellant.

7    Four grounds of appeal are relied upon. They are as follows:

1. The trial miscarried by reason of the failure of the trial judge to disclose to counsel for the appellant the contents of MFI-46.

2. The trial judge erred in failing to give any directions to the jury regarding the circumstances recounted in MFI-46.

3. The trial judge erred in failing to discharge the jury.

4. The verdict is unreasonable and cannot be supported having regard to the evidence in the trial.

8    The first three grounds may be considered together. If successful, they would lead to the setting aside of the verdict and the granting of a new trial, subject to a submission that, as a matter of discretion, no new trial should be ordered. The fourth ground, if established, would lead to the substitution of a verdict of acquittal. In the circumstances it is convenient to consider this ground first.

9    In relation to the fourth ground a concession was made on behalf of the appellant that, if, having regard to the criminal onus of proof, it was open to the jury, on the whole of the evidence, to find that the fire was deliberately lit, then the verdict could be sustained. It was accepted that, in the circumstances that the jury could so find, then the further finding, beyond reasonable doubt, that it was the appellant who started the fire was available on the evidence.

10    The thrust of the appellant's argument was that the jury's verdict was insupportable, in so far as the evidence pointing to an accidental cause for the fire should necessarily have been productive of sufficient doubt to require an acquittal. It was put that the state of the evidence bearing upon the cause of ignition was such as necessarily to prevent the jury's being satisfied of guilt to the requisite standard. The prosecution case was entirely circumstantial with the result that the jury could only have been satisfied as to guilt if they could have rejected, as a rational inference, the possibility that the fire had been accidentally caused.

11    In these circumstances, it is necessary to make some reference to the main features of the evidence bearing upon this issue.

12    The fire was reported to the fire brigade at 7.32 pm. The call was responded to at 7.37 pm, at which time the fire had taken hold to such an extent that it was not brought under control for over three hours. The appellant told the police that he was the last person to leave the building, having departed at about 7.15 pm. He was in fact stopped by a police officer, when driving his vehicle about 3.3 kilometres from the premises, at 7.31 pm. This action by the police officer was occasioned by the fact that the vehicle's registration plate was obscured as a result of a bicycle being carried on the vehicle. The point at which the car was stopped was approximately 5 to 6 minutes driving time away from the premises. It was plain that the fire had commenced suddenly and taken hold quickly around the time when the appellant left the premises. The appellant at all stages denied that he had played any part in the occurrence of the fire.

13    The building in which the smash repair business was carried on was leased by the appellant. It was rectangular in shape. It was not in good condition. The roof tended to leak during rain. The electrical wiring was old and could become wet in certain sections, particularly in the roof, during rain. The floor was concrete and, in places, in poor condition. The business involved the panel beating of damaged vehicles, rust removal, spray painting, and, apparently, some mechanical work. There was an office area in the north-western part of the building, near which was stored some inflammable material, such as thinners. In the south-east corner there was a stack of tyres and a certain amount of combustible litter, such as cardboard. Also, in the general area of the corner, there were containers in which rags which had been impregnated with fish oil, used in rust removal and prevention, were placed after use.

14    Prior to the fire a Mazda vehicle was parked near the south-eastern corner, where work was being done on it. Nearby there was another vehicle, a Ford. Welding operations were carried on in the vicinity of these vehicles, there being evidence that such operations had occurred during the afternoon of the fire. In the vicinity of the vehicles there were poles supporting the roof, to which were attached power points, the electricity being supplied by wires descending from roof level and attached to the poles.

15    When fire brigade officers arrived, the fire was burning fiercely in the south-east of the building and had spread to the north-west. The roof above the south-east corner had collapsed. After the fire was brought under control, it was found that portions of the roof had fallen on to the Mazda vehicle, which was severely damaged by fire. The other vehicle in the vicinity was also damaged but to a considerably lesser extent. The contents of the Mazda, including its upholstery had burned. Its tyres had burned to floor level. Its aluminium gear-box situated beneath the vehicle had melted. The concrete floor beneath the vehicle was severely affected by heat, a condition known as 'spalling' having occurred. The pile of tyres in the corner had almost burnt away.

16    Inspector Brogan of the New South Wales Fire Brigade Fire Investigation Unit, an officer most experienced in that area of investigation, attended the site on the morning after the fire. He noted carefully the damage to the Mazda vehicle and the fire damage in the area. He stated that "the van in particular had all four tyres completely consumed by fire and south of that van between the van and the south wall there had been a large pile of motor vehicle wheels and tyres and all of those tyres had been completely consumed and underneath the van on the southern side there was a large area where the concrete had been completely damaged and there was spalling where the concrete splits apart and it is forceably ejected and that occurred so the concrete had been destroyed right through the concrete to the ground underneath". This suggested to him that "an extreme heat source underneath that van and in the tyres (had) caused that extreme damage." The melting of the gear-box was also indicative of such an extreme heat source. The petrol tank of the vehicle was intact. It had petrol in it. He expressed the view that it was "extremely unusual for heat of that intensity to be on the ground beneath the vehicle and also for motor vehicle tyres to be completely consumed, particularly in the area where the wheel was

actually sitting on the ground". In his opinion it would require something like petrol in the area to form enough heat to cause that damage. It would take a great deal of heat to ignite tyres and usually an accelerant would be needed.

17    The evidence of damage from fire satisfied him that the fire had originated and burnt longest in the south-east corner and had travelled across to the west of the building.

18    All expert witnesses who were able to examine the building shortly after the fire were of the view that it had commenced in the south-east corner, with the exception of one witness, Mr Nystrom, who was of the view that the fire had been simultaneously lit in both the north-west and south-east corners. The jury were clearly entitled to find, beyond reasonable doubt, that the seat of the fire was in the south-east corner, in the vicinity of the Mazda vehicle.

19    Two highly qualified experts called by the prosecution, Messrs. Stern and Boath were firmly of the opinion, based upon the circumstances already referred to, that the fire had been deliberately lit underneath the Mazda with the use of an accelerant and had spread to the stack of tyres and other combustible materials, the heat being of sufficient intensity to cause them to ignite. From there the fire had spread predominantly through the roof to the north-west corner of the building. Whilst acknowledging that other causes of fire in the building were possible, such as electrical faults, they remained firmly of the view that this fire had been deliberately lit with the use of accelerants.

20    Other possibilities for the cause of the fire were raised by the defence. Apart from an electrical fault, these were:

1. That the fire was caused by hot sparks from welding activity, finding a host within the premises, smouldering for some time and then bursting into flames.

2. Spontaneous combustion, mainly in respect of rags which were impregnated with fish oil.

3. That some other person had lit the fire.

In a careful summing-up, which has attracted no criticism, her Honour directed the jury that if any of those scenarios was reasonably open on the evidence then it would be their duty to acquit the accused.

21    Evidence was called on behalf of the defence, of an expert nature. The witnesses had not had the advantage of seeing the premises shortly after the fire. They supported the possibilities of the causation of the fire referred to above. Mr Barratt, the main expert witness for the defence, when asked whether he could say what caused the fire, said:

"I said that right from the word go I don't know, it may be accidental, it may be torched, but I believe there is an argument to be said that it could be accidental. That's all I can really say."

22    In my view it was clearly open to the jury to find, beyond reasonable doubt, because of the intensity of the heat in the area of the Mazda, that the fire had been deliberately lit with the use of an accelerant. Other suggested causes, although they might lead to ignition, could not produce the level of heat demonstrated by the after-effects of the fire.

23 It was put on behalf of the appellant that the case should be characterised as one similar to that described by Jenkinson J in Chamberlain v The Queen, (1983) 72 FLR 1, pp81-82 where his Honour said, in relation to the expert evidence in that case, that:

"Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation."

24    In my opinion the present case was not in such a category. The evidence, direct and opinion, in relation to the causation of the fire could readily be comprehended by a jury and evaluated by them.

25    In my opinion it was well open to the jury in the present case to be satisfied beyond reasonable doubt that the fire was deliberately lit. In these circumstances the fourth ground of appeal must be rejected.

26    I turn then to grounds 1-3. These relate to an incident which occurred after her Honour had concluded her summing-up and the jury had been sent out to consider their verdict.

27    The factual background to this part of the appeal needs to be stated shortly. In doing so, I have made considerable use of the chronology of events supplied in the written submissions of the appellant, which is not disputed. The salient facts are as follows:

"(1) On Friday 28.5.99 at 11.15am the jury retired to consider its verdict.
(2) On Monday 31.5.99, counsel for the appellant informed the judge that an incident had occurred on Friday night involving Ms Hirata, who was instructing him, and some members of the jury. From the bar table he informed her Honour that Ms Hirata, whilst in a hotel close to the Downing Centre Court Complex on that night was then approached by a member of the jury who said words to the effect:
"Don't I know you from somewhere."
Ms Hirata had told the juror that she could not communicate with him. Another juror approached and Ms Hirata made a similar statement to him. A short inconsequential conversation had occurred and Ms Hirata, together with another solicitor who was with her, departed.
(3) The trial judge informed defence counsel that the sheriff's officer had informed her that she (the sheriff's officer) had "been made aware of some issue arising on Friday afternoon and she had taken the precaution of taking those jurors…in another room. Three jurors were sequestered.
(4) After a short adjournment, the trial judge informed defence counsel that she was going to allow the jury to continue their deliberation until a verdict was reached or they were unable to reach a verdict. She informed defence counsel that she had received a note from the jury which she marked for identification (MFI 46). She declined to allow defence counsel to see the note despite his expressed concern of a risk of prejudice against the appellant. She had received the note on the Bench and had read it in the adjournment.
(5) MFI 46 was a note from the foreman of the jury. It contained what her Honour later described as an "entirely different and irreconcilable account." It recounted an incident in a hotel on the evening of 28.5.99 in which defence counsel's "assistant" (Ms Hirata) approached a juror and attempted to give the juror an envelope, after the juror had made it clear the juror was part of the jury. This was within view of 8 other jurors at the hotel. Another juror approached and asked Ms Hirata to leave immediately. She again attempted to hand over the envelope, was told to leave immediately again and then left, with another woman, having mentioned that she may have been mistaken. The other jurors saw the incident but not the envelope.
(6) When the 3 jurors who had been sequestered were permitted to rejoin their fellow members, the Sheriff's officer, on the instructions of the trial judge, told them not to discuss the contents of MFI 46 with any other member of the jury.
(7) In the afternoon of 31.5.99, the trial judge received a note from the jury that they could not agree on a verdict. She gave them a Black direction.
(8) The trial judge again declined a request from defence counsel to see the note. She acknowledged defence counsel's concern that the contents might give rise to an application to discharge the jury but she stated that she was "just not in a position to discuss it".
(9) The jury sent a note that they had reached a verdict. Before the verdict was taken, defence counsel applied for a discharge of the jury. The application was refused.
(10) After the verdict was taken, evidence was adduced from 3 members of the jury in relation to the incident involving Ms Hirata. Juror 1.1J testified that the appellant's instructing solicitor approached the juror at a Hotel on the evening of 28 May and attempted to give the juror an envelope (after the juror had made it clear the juror was part of the jury). Another juror intervened and told the solicitor to leave but the solicitor again attempted to pass over the envelope. Juror 1.1E was the juror who intervened and he confirmed this account. Juror 1.1G saw gesturing between a juror and the solicitor. MFI 46 was then shown to defence counsel.
(11) Defence counsel stated that, if he had seen the note before verdict, the trial judge could not have resisted a discharge application. The trial judge stated that she would have resisted it.
(12) On 2.6.99 the trial judge referred the matter of the contact with jurors to the Supreme Court for determination as to whether contempt had been committed. In her judgment, she stated that she would have resisted an application to discharge the jury on the basis that "the interests of justice would not be served by acceding to an application, the basis of which had been engineered by the accused's instructing solicitor".

28    On the basis of these events, the appellant seeks an order for a new trial. He submits that there was a real risk that he was prejudiced by the incident involving his solicitor and the members of the jury. He submits that the jury should have been discharged on his counsel's application or that her Honour, in the circumstances, should have given a very specific direction to the jury, of the kind referred to in Elfar v Tier, (unrep, NSWCCA 9 October 1995).

29    It was submitted that prejudice clearly arose because juror 1.1J would have known, from prior directions given to the jury by her Honour, that there should be no contact between the jury and anyone associated with the case. He, and the other members of the jury, would have known that Ms Hirata was associated with the defence case and that Ms Hirata knew that he was a juror. Later the juror gave evidence before her Honour that "at the time" he had "presumed nothing of it, it could have been just a coincidence. She might have thought I was maybe somebody else". However, it is clear that he was sufficiently concerned to discuss the matter with the foreman of the jury, with the result that MFI 46 was sent to the judge. Also, his temporary sequestration from other members of the jury, by the sheriff's officer, could have reinforced an inference adverse to Ms Hirata and to the appellant. He could have inferred that Ms Hirata was improperly attempting to influence the outcome of the trial in favour of the appellant. In such circumstances the juror could have formed an unfavourable view of the appellant or at least, be prejudiced against his case. Moreover, despite the sequestering, it was highly likely that other jurors would have been aware of the incident, either as a result of observations on the Friday night, or because of discussion thereafter.

30 In these circumstances, the appellant submitted that the trial miscarried. Reliance was placed upon principles discussed in Webb v R; Hay v R (1994) 181 CLR 41.

31    In Webb the High Court was concerned with an irregular incident involving a juror and the question whether that incident warranted the discharge of the juror or the jury. After consideration of authority, Mason CJ and McHugh J propounded the following test (at 53):

"…the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."

32    It must be noted that the test as so propounded is an objective one and does not depend upon the actual effect that the incident might have had upon the juror in question. In the present case the simple fact is that, in a very public place, an approach was made to a juror by a lawyer involved in the case, which involved the attempted handing over of an envelope to that juror. This took place in the presence of another juror. Other members of the jury could see the incident but not, apparently, the envelope. In those circumstances, in my opinion, the incident would have given rise to a reasonable apprehension or suspicion such as referred to in this test.

33    One can sympathise very much with her Honour in the dilemma with which she was faced. To discharge a jury, which had entered upon its deliberations, after a trial occupying twenty-one days, is something which any trial judge would wish to avoid. This would be the more so, when the question of discharge had arisen as a result of conduct on the part of someone representing the accused, which the judge considered, prima facie, as being reprehensible. There could be no quarrel with the steps that her Honour took in relation to the solicitor involved. However, the overriding question was whether the trial, in the circumstances, could go on. I have, with considerable regret, come to the conclusion that her Honour, was, in fact, faced with a situation where there was only one course to be taken, namely the discharge of the jury.

34    In these circumstances, I find it unnecessary to consider whether her Honour should have given an Elfar type direction to the jury. The situation was, in my view, one that could not reasonably be cured by such a direction, in so far, as a significant part of the jury had been involved in the incident, in full public view.

35    It is, indeed, most regrettable that the situation apparently exists, where members of the legal profession, involved in cases before the Courts in the Downing Centre Complex, may, in local hotels, come in contact with jurors hearing cases in which they are concerned. It would seem that consideration should be given to the taking of appropriate steps to prevent these occurrences in the future.

36    In my opinion, the appeal must be upheld, the conviction quashed and a new trial ordered.

37    SMART AJ: I agree with Foster AJA. I make these additional comments. The trial judge was convinced that the instructing solicitor had engineered the situation which developed and there was substantial material supporting her view. This disturbed the judge and it has disturbed me.

38    It is not known whether the appellant was a party to what took place or knew that an attempt was to be made to disrupt or interfere with or influence the jury’s consideration. If that had been established and the jury had convicted the appellant may not have been entitled to a new trial. I desire to reserve that point until it arises directly for decision. Prior to coming to their final decision the jury had, after some hours of deliberation, been unable to agree and had received the standard Black direction that they should deliberate further and endeavour to agree, if they could do so without violating their consciences. In such a setting the conduct of the appellant’s instructing solicitor in attempting to hand over an envelope may have played a part in the jury’s decision to convict.

39    It is not unknown for the members of a jury after the close of the Court’s business for the day to retire to a hotel near the Courthouse. It is important that instructing solicitors ensure that they do not go to the same hotel as the jury considering the case in which such solicitors are instructing. Such solicitors should avoid any risk of coming into contact with such jurors or any of them. The integrity of the jury must be preserved at all times. This is doubly so when the jury has retired to consider its verdict.