R v Quist

Case [2017] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v QUIST

[2017] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Lovell)

28 April 2017

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

EVIDENCE - PROOF - CORROBORATION - FALSE DENIALS AND LIES

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - MOTIVE

Application for permission to appeal against conviction.

The appellant was convicted by a jury of arson in the disabled toilet of a shopping centre. The sole issue at trial was whether the prosecution could prove beyond reasonable doubt that it was the accused who ignited the fire.

The prosecution case relied on circumstantial evidence including the accused’s presence at the crime scene; being the only person injured by the fire; DNA matches to the appellant on two petrol-filled plastic bottles found in the roof cavity above the cubicle; the pattern of injuries to the appellant and damage to her backpack. The prosecution also led evidence of the significantly different accounts proffered by the appellant on various occasions after the fire, which inconsistencies were said to show a consciousness of guilt.

The prosecution theory, supported by expert evidence, was that the accused lit a match, which immediately produced a vapour explosion and flash point fire, causing both the appellant’s injuries and an orange flash shown on CCTV footage. The defence led competing expert evidence that the fire, having been ignited some time prior, died down due to a lack of oxygen in the relatively airtight space.  On the defence theory, the appellant’s injuries were caused by her opening the door to the bathroom, rapidly introducing oxygen and causing the fire to suddenly reignite.

The grounds and proposed grounds of appeal asserted that the trial Judge failed to adequately direct the jury in relation to the prosecution expert evidence, the alternative explanations for the presence of the appellant’s DNA on the plastic bottles, and the lies of the appellant; and erred in admitting certain evidence. The appellant also asserted that the trial miscarried as the appellant’s asserted motive was not supported by the necessary evidence, and that the verdict was unreasonable.

Held:

1.       (Per Peek J, Blue and Lovell JJ agreeing).

Ground 6 that the verdict is unreasonable or incapable of being supported having regard to the evidence is not established.

2.       (Per Peek J, Blue and Lovell JJ agreeing).

Ground 1 that the Judge erred in failing to direct the jury adequately in relation to the expert evidence of the fire expert, Mr Levy, is not established.

3.       (Per Peek J, Blue and Lovell JJ agreeing).

Proposed Ground 2 that the Judge erred in…

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R v Quist [2017] SASCFC 37
Case
[2017] SASCFC 37
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the sole issue at trial was whether the prosecution had proven beyond reasonable doubt that the appellant ignited a fire. The appellant contended that the verdict was unreasonable, and also raised grounds asserting a miscarriage of justice due to alleged improper admission or rejection of evidence and deficiencies in the trial judge's summing up, despite no objections being raised at trial. The appeal was heard by Peek, Blue, and Lovell JJ.

The court was required to determine whether the verdict of guilt was unreasonable, and whether any alleged misdirection or non-direction by the trial judge constituted a miscarriage of justice. Specifically, the court considered whether the trial judge adequately directed the jury on the significance of expert evidence presented by the defence and the correct approach to conflicting expert opinions regarding the cause of the appellant's injuries. The court also had to assess whether the appellant had established that any failure to direct the jury on certain aspects of the evidence, such as the use of lies told by the accused, may have affected the verdict.

The court reasoned that for an appeal based on misdirection or non-direction to succeed, the appellant must demonstrate that the failure to direct the jury constituted a miscarriage of justice, meaning it was reasonably possible that the omission may have affected the verdict. While acknowledging that it might have been preferable for the trial judge to provide more explicit directions regarding the use of any lies told by the accused, the court found that the appellant had not established that such an omission was reasonably possible to have affected the verdict. Regarding the expert evidence, the court found that the trial judge had adequately identified the significance of the defence expert's evidence and had clearly explained the conflicting expert theories to the jury, along with appropriate directions on the burden of proof and the assessment of circumstantial evidence. The court concluded that the jury was well-placed to resolve evidentiary conflicts and assess the appellant's evidence, including her prior good character.

Ultimately, the court found that none of the evidence or matters raised by the appellant, when considered individually or cumulatively, led to the conclusion that the jury should have harboured a doubt as to her guilt. Therefore, the court found the verdict to be neither unreasonable nor unsafe or unsatisfactory, and rejected ground 6 of the appeal. The court also rejected the other grounds of appeal, dismissing the appeal.

Orders

Orders of the court

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Background

Background to the litigation

I would refuse permission to appeal on proposed ground 2 of appeal and would grant permission to appeal on proposed ground 6. I would reject each of grounds 1, 3, 4, 5, 5A and 6 of appeal and dismiss the appeal. My reasons follow. The factual background and the course of the trial The sole issue at trial was whether the prosecution could prove beyond reasonable doubt that it was the accused who ignited the fire. The appellant contends that the verdict is unreasonable (ground 6 of appeal). However, there are further grounds (with various sub-grounds or particulars) which assert miscarriage of justice by reference to complaints concerning admission of evidence and the content of the summing up (or omissions from it), with no objection having been taken at trial to such matters and no assertion of incompetence of trial counsel now being made. There has been once again an attempt to litigate an appeal with little regard to what occurred at trial and reference may be made to the recent comments made by this Court in R v Lowe.[3][3] [2016] SASCFC 118, [15]. It is well to bear in mind that in approaching claims of miscarriage of justice in such circumstances, the statements of McHugh and Gummow J in Dhanhoa v The Queen (made in the context of directions as to lies) have importance. Their Honours said:[4][49] Because the trial judge was not asked to direct the jury, he did not make a “wrong decision of any question of law” (our emphasis). Thus, the only ground that is relevant in the present case is that the failure to direct the jury on identification or lies or both “was a miscarriage of justice”. In a case where the judge has misdirected the jury on the evidence or failed to refer to evidence, it is for an appellant to establish that the misdirection or non-direction constituted a miscarriage of justice. Similarly, it is for the appellant to establish that the trial judge’s failure to give a direction concerning some aspect of the evidence constituted a miscarriage of justice. In such a case, a miscarriage of justice will have occurred if the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”…[59] … in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused’s lies, if they found he had lied, only affected his credibility.[60] However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury “may have affected the verdict”. We do not think that he has done so.[4] (2003) 217 CLR 1, 15-18.GROUND 6 OF APPEAL: THE VERDICT IS UNREASONABLE

Evidence

Evidence Before The Court

And later:QIf the same person had screwed the five tops you tested on the bottles within minutes of each other, is there any reason why, from a DNA perspective, they would leave a result on two bottle tops and not three others?AIt’s possible and I’ll explain that by if I was to touch one item and then another item and another item, each time I touch that there might be lots of DNA available on my hand DNA left on my hand by the time I got down the track of many items to transfer. That’s a possible explanation for it.QAnother explanation might be that there has been some contamination of a couple of the bottle tops and not of the others?AThat’s a possible explanation.The expert evidence concerning the fire – a conflict between two fire experts Shortly before the appellant left by ambulance, Mr Wynne, an expert in fire investigation, arrived and proceeded to examine and photograph the fire scene. He noted the following matters:-A melted soft drink bottle without a lid was immediately adjacent to the toilet. -A red lid consistent in appearance with being the lid of a soft drink bottle was on the edge of the sink. -The cover of the exhaust fan in the ceiling of the toilet was on the floor and a hole into the ceiling space was thereby open. The appearance of the floor at that point indicated that that cover had been there when the fire began.-A box of matches was at the entrance of the DP toilet, the door of which was in a partially open position. -A single unlit match was on the floor of the toilet. Mr Wynne noted a smell of petrol in the following areas:-Around the melted bottle adjacent to the toilet (petrol was also identified forensically in that bottle).-In the area depicted in photo 21 of P1, near the ceiling fan cover.-On the toilet paper roll depicted in photo 21 of P1.-On a burned remnant of cloth hanging from a rail adjacent to the toilet. Mr Wynne concluded that there had been a sustained fire in the area where the melted soft drink bottle was located adjacent to the toilet; he observed a distinctive ‘V’ shape in the soot damage to the toilet and cistern (photo 28) which supported this view. His opinion was that a deliberate act was the cause of the fire, and that an accidental source of ignition could be excluded. These matters were not challenged; there was no dispute that the fire was deliberately lit. Further, it was common ground that the appellant’s burns were caused by her coming close to the fire in the DP toilet at the time of the orange flash recorded on the CCTV. However, there was a difference in view between the prosecution expert, Mr Wynne, and the defence expert, Mr Levy, as to the likely mechanism which generated that orange flash. The two experts gave evidence of alternative scenarios to explain that circumstance: a “vapour fire” which ignited more quickly than anticipated by the accused when she introduced a match to the petrol soaked area, or a “backdraught” fire which erupted at the door of the toilet when it was opened by the accused. Thus the contest concerned the interpretation of, and weight to be given to, certain circumstantial evidence in the case.The prosecution case: A vapour explosion

Decision

Reasons for decision

PEEK J
Similarly in relation to particular 6.3, the matter of motive is dealt with in detail below in connexion with ground 4 of appeal. I fully accept that the appellant is a person of prior good character with an attendant right to have that reflected in any assessment of her credibility and the unlikelihood of her committing such a crime. I take into account the appellant’s evidence, giving due regard to her prior good character and the presumption of innocence, when assessing the strength of the whole of the evidence for the purpose of ground 6 of appeal. Conclusion concerning ground 6 of appeal The jury was well placed to resolve conflicts in the evidence (including, but not limited to, that between the two fire expert witnesses) and to assess the appellant’s evidence, giving due regard to her prior good character and the presumption of innocence. I have made an independent assessment of all the evidence and applied the precepts in M v The Queen.[18] I consider that none of the items of evidence or matters referred to by counsel, weighed singly or cumulatively, lead to the result that the jury should have had a doubt as to the appellant’s guilt. I find that the verdict is not unreasonable and is not unsafe or unsatisfactory. I would reject ground 6 of appeal.GROUND 1 OF APPEAL: DIRECTIONS CONCERNING THE EXPERT EVIDENCE OF MR LEVY[18] (1994) 181 CLR 487.Ground 1, particular 11.1His Honour failed to adequately identify the significance of Mr Levy’s evidence in relation to the defence case The Judge did in fact give the following explicit directions “identifying the significance of Mr Levy’s evidence in relation to the defence case”:[80] It is Ms Quist’s case that she had nothing to do with the bottles filled with petrol which were found above the exhaust fan in the toilets. [81] The accused’s case is that the fire must have started by the operation of what has been called a ‘backdraught’. That is, somebody had started the fire in the disabled toilet before Ms Quist opened the door. The fire, while still burning, was burning down or was what Mr Levy called at the ‘decaying stage’. But when she opened the door there was a rush of air which of course contained oxygen. As soon as the slow-burning fire was fed with oxygen, it flared up and there was the explosion evidenced by the orange flash which we saw in the CCTV footage. That was the expert, Mr Levy’s, theory about how Ms Quist came to be burnt. I consider that particular 1.1 has no substance.Ground 1, particular 21.2The learned Judge erred in failing to direct the jury as to the correct approach to the conflict between the expert evidence as to the course of the fire in relation to the cause of the Appellant’s injuries and the application of the burden of proof The Judge carefully described the conflicting expert evidence and explained the respective theories clearly and adequately to the jury. Further, the Judge’s directions as to burden of proof were favourable to the appellant and, when applied to the two fire experts, would have led the jury to put aside Mr Wynne’s views if they considered that the scenario advocated by Mr Levy appeared to them to be a possible explanation of the mechanism whereby the appellant was injured.[19][19] Summing Up AB 222, 224-225, 226 paragraphs [47-49]. Amongst other favourable directions (including the giving of a Peacock direction), his Honour directed that:10. It is not enough for the prosecution to show a mere suspicion of guilt or to show that Ms Quist is probably guilty. She is not to be convicted unless her guilt has been proved beyond reasonable doubt.11. And so, if in what I am about to say to you, I speak about matters to be ‘proved’ or to be ‘established to your satisfaction’ or if I use any other expression relating to the proof of any matter in issue, you will understand that always I mean proof or satisfaction beyond reasonable doubt.Later, his Honour directed:34. It is important for you to understand that your approach to the circumstantial evidence in the case requires two steps. First, you must look at the facts upon which the prosecution relies as circumstantial evidence in the case and decide which facts you accept as established or proved by the evidence.…47. So there, ladies and gentlemen, are the facts upon which the prosecution relies upon as circumstantial evidence in the case. Your first step, as I have said, is to decide which of those facts you accept as established by the evidence. So that is the first step. Go through them and decide which of them you accept as having been established by the evidence.48. Then the next step for you is to consider what inference or inferences you are prepared to draw from those facts which you have found to be established. This step, the step of considering the inferences you are prepared to draw, requires you to consider the combined strength of all of the facts which have been established. To return to the analogy of the rope. When all of the established strands of fact are twined together they produce a strength which is greater than the strength of any one of the individual strands.49. Remember ladies and gentlemen, that inferences drawn against Ms Quist must be the only rational inferences which the established facts enable you to draw. You cannot return a verdict of guilty unless the facts exclude any reasonable explanation consistent with innocence. (Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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