R v Punitharajakurukkal
[2002] VSCA 120
•24 June 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 379 of 2000
| THE QUEEN |
| v. |
| SUBRAMANIYA PUNITHARAJAKURUKKAL |
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JUDGES: | ORMISTON, CALLAWAY and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2002 | |
DATE OF JUDGMENT: | 24 June 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 120 | |
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Criminal Law - Arson - Conviction on one of two counts - Whether inconsistent verdicts.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. Thomas | Victoria Legal Aid |
ORMISTON, J.A.:
The applicant for leave to appeal against conviction was convicted by a jury on one count of intentionally and without lawful excuse damaging by fire a dwelling situated at 2 Conyers Street, The Basin, belonging to the Melbourne Vinayagar Hindu Sengam. For that count the applicant was sentenced to a term of three years' imprisonment, the whole of which the learned judge ordered should be suspended for a period of three years. At the same trial, the applicant had also been acquitted on one count of arson of the Vinayagar Hindu Temple situated immediately adjacent to the dwelling at 1292 Mountain Highway, The Basin (count 1), on one count of recklessly engaging in conduct, by setting fire to the dwelling, placing his wife and daughter in danger of death (count 3) and on one count of recklessly placing them, in the same way, in danger of severe injury (count 4). This application relating to the one count of arson of which the applicant was convicted rested, after abandonment, in effect, of ground 4 in the course of presentation of argument to this Court, on three grounds, namely:
(1) That the verdicts were inconsistent;
(2) That the verdict on count 2 was unsafe and unsatisfactory;
(3) That that verdict was a compromise verdict.
Moreover, the second ground, of unsafeness and unsatisfactoriness, was argued in a way which depended for its success effectively on a favourable decision on either of the other grounds (2) and (3).
Having regard to the manner in which the grounds were argued, it is necessary only to give a short summary of the detailed evidence led in support of all four counts.
The fires forming the basis of all counts undoubtedly occurred at about 11 p.m. on the night of 11 March 1999, at which time the applicant was the priest in charge of the Vinayagar Hindu Temple at The Basin. It is not clear in what order the fires occurred, but it seems that the first fire observed was in the dwelling situated, as I have said, at the back of the Temple in which the applicant and his family were entitled to, and did, reside. The largest fire, as I would understand it, in the house was in a room used by the applicant as a prayer room and storeroom. A second separate but smaller fire was a short distance away in a hallway near the front door. At the time the first person arrived, the caretaker, who had been phoned by the applicant, the applicant and his family were all in a bedroom, from which it was necessary to help them escape before the fire brigade arrived. The third fire, which started in a storeroom of the Temple, was observed later, though when it was lit is not clear. It also had to be put out by the fire brigade. It was not confined to a single room, but primarily the papers, vestments and furniture in the storeroom had been damaged. The applicant, though the priest of the Temple, and having access by a key to all parts of the premises, was not observed by anybody to have been in the Temple or adjacent thereto at any time immediately before or around the time of the outbreak of the Temple fire.
There was a great deal of evidence called, mainly from people in the Hindu community who worshipped at the Temple, from the applicant's wife, from the police and from experts who had examined the remains of the areas burnt by the fire. It is not necessary to go through all that evidence, but it should be emphasised that no motive for any of the fires was discovered, nor seriously put forward in the course of the trial.
There were, however, considerable differences between the fires. Whereas the Temple fire seemed not to have been started by any fuel or other accelerant, one container of motor mower fuel was found in the house. Moreover the container was very similar in appearance to one of two containers formerly held in the disabled lavatory where the motor mower, it seems, was also stored. Only three people had keys to the lavatory, as I would understand it, and one of those was the applicant. The other key holders gave evidence and it was not suggested that they had started or been responsible for any of the fires, but a few days later, the lavatory was unlocked and both containers were found by one of those key holders to be missing at that time.
Most of the expert evidence was directed to the versions given by the applicant in attempted explanation of what occurred, especially in his own house, whereas he said that he knew nothing of the fire at the Temple. On several occasions he had suggested (and this seems to have formed the basis of the address made on his behalf at the trial) that he was in the house when suddenly one or more persons had run up or come to the side of the house and thrown some lighted object through the window into the prayer- and storeroom. Experts said that the fires and the damage were not consistent with these versions. There was no such contention in relation to the Temple fire, largely because the applicant was not seen to be present and had made no similar explanation. However, although it seems that one means of entry to the Temple had been left open for one reason or another and unlocked on the night in question, most of the evidence suggested that all doors to the house were in fact locked, making it almost impracticable or impossible that anybody entered the house.
It is not necessary to go further into this evidence. It was a strong case and the applicant's versions were confused. He made a written statement and had been asked a considerable number of questions in a record of interview which was put before the jury at the trial. The applicant did not give evidence at the trial.
Coming now to the arguments presented on behalf of the applicant, counsel argued all three remaining grounds together, as I have said. Counsel candidly conceded, as the reports from the trial judge had pointed out, that the circumstantial case on count 2 was a strong one, so that, but for the way the jury had dealt with count 1 (counts 3 and 4 have not been relied upon for this purpose), there would have been no basis for challenging the verdict on count 2. However, counsel said that prosecution counsel (not being counsel for the respondent on this application) had presented the case below in a particular way, which was consistent with the way that the judge had summed up the case, and that had led inevitably to the conclusion that the verdicts were inconsistent and could only have been reached as a result of some impermissible compromise. The way in which that contention had been developed depended upon the assertion, as I understand it, that there was a "common ingredient" to both counts 1 and 2, in the sense explained in a number of the well known authorities to which it is not necessary here to turn, so that the jury's verdicts were inexplicable. That common ingredient was said to be the lighting of the three fires - one in the case of the Temple and the two fires in the case of the house. But such an analysis does not bear examination, whatever may be said in cases where a common element of, say, dishonesty is put forward by the prosecution. The fires at the two premises were different, not substantially in time, but in the manner of their execution, and the jury could rationally agree that the fires at the house were set alight by the applicant, while at the same time not being satisfied beyond reasonable doubt as to who had lit the fire in the Temple. One may mention only the lack of evidence of the use of any mower fuel in the Temple, and, more importantly, the fact that there was no doubt that the applicant was present in the house whereas there was no evidence that he was present in or near to the Temple at any relevant time.
The essential argument, however, put on behalf of the applicant was this. He contended that the Crown had put an argument at trial along the lines that the applicant was responsible for all three fires and that, if not responsible for any one of the fires, especially that at the Temple, the applicant could not be convicted for any arson count relating to the house which he and his family occupied Moreover, as I understand it, counsel said that the judge had accepted that contention and had repeated it to the jury as the only proper basis for conviction.
I cannot agree. There is no satisfactory evidence before the Court that prosecution counsel took that line of argument and, though we do not have copies of the addresses made to the jury, there is nothing in the judge's charge which would suggest that line of argument, however strenuously it was contended to the contrary before this Court, to support such a conclusion. It would be an extraordinary line for counsel to take and it was for the applicant to demonstrate to this Court that such an erroneous approach was in fact adopted.
As might be expected, prosecution counsel appears in fact to have tried to argue the other way, namely that the fact that the applicant was responsible for the house fires made it the more likely, in these unusual circumstances, that he was also responsible for the Temple fire. That no doubt was the reason why the judge pointed out in his charge that the Crown had argued that all three fires were lit by the same person. So it had been argued below, almost on a "boot-straps approach", if I may so describe it, that, as no one else was shown to have lit the Temple fire, therefore the applicant must have lit it. But the judge did not bless this argument with his approval: indeed, if he had, and there had been a conviction on count 1, that may in itself have been ground for complaint. However, at all times the judge emphasised to the jury that they should consider each count separately and independently and he was careful to limit the evidence which was common to both counts. What counsel sought to draw from this, however, was that the judge was approving some contention of counsel for the prosecution, or at least not sufficiently refuting that contention, that, if the jury was not satisfied as to the applicant's lighting of the Temple fire, they could not convict him in relation to either of the two house fires. So it was said that the Crown case had been a "one in, all in" approach and that the jury had wrongly not accepted the restrictions put to them when they convicted the applicant on count 2 after having acquitted him on count 1.
I can find no basis for concluding that the prosecution put this unusual argument, nor that the judge had accepted it. The jury were left free, properly, to reach a conclusion on the evidence on each count and that, in my opinion, is what they did. There was no inconsistency, no compromise and no other irregularity in their verdicts.
Counsel attempted to show that the judge at one stage adopted the possibility, and directed the jury alone the lines, that the applicant may not have lit the Temple fire but that fire may have been lit by an accomplice, so making the applicant liable on the basis of acting in concert. There was some confusion in the course of the charge, but in the end the judge made it clear that there was no evidence of any accomplice and that they could not convict on that basis. It was shortly after this that the jury brought in their verdicts, so it is possible that they had been delayed to that stage by trying to work out a verdict based on some non-existent evidence relating to an accomplice. However, once clearly directed, the difficulty had been overcome and the single verdict of guilt brought in on count 2. No separate argument was put that the earlier directions as to concert amounted to error, since it was emphatically corrected by the learned judge and it could have had no bearing upon the outcome of their verdicts, nor can it have any bearing on the outcome of this application.
I must, therefore, reject the contentions that counsel has put before this Court, and the application, in my opinion, should be dismissed.
CALLAWAY, J.A.:
I agree.
EAMES, J.A.:
I also agree.
ORMISTON, J.A.:
The order of the Court, therefore, is that the application be dismissed.
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