R v Quist

[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 failing to direct the jury adequately in relation to the alternative explanations for the presence of the appellant’s DNA and the application of the burden of proof to those alternatives is not established.

4.       (Per Peek J and Lovell J agreeing).

Ground 3 that the Judge erred in admitting the statement of the appellant recorded in the hospital record is not established.

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

Ground 4 that the alleged motive relied on by the prosecution was not supported by the necessary evidence or alternatively that the Judge erred in failing to direct the jury adequately concerning motive is not established.

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

Ground 5A that the trial miscarried as a result of the admission of Exhibit P8 and of evidence from Constable Schuurmans that he had not previously had someone proffer a witness statement unsolicited is not established.

7.       (Per Blue and Lovell JJ)

Ground 5 that the Judge erred in failing to adequately direct the jury in relation to the alleged lies of the appellant is established.

(Per Peek J dissenting).

Ground 5 that the Judge erred in failing to adequately direct the jury in relation to the alleged lies of the appellant is not established.

8.       (Per Blue J, Lovell J agreeing, Peek J dissenting). 

Appeal allowed.  Conviction set aside.  Matter remitted for retrial.

Evidence Act 1929 (SA) ss 28, 29, 34R, 45A, referred to.
Broadhurst v R [1964] AC 441; Domican v R (1992) 173 CLR 555; Edwards v R (1993) 178 CLR 193; R v Chapman [1973] QB 774; R v Ciantar (2006) 16 VR 26; R v Fouyaxis (2007) 99 SASR 233; R v Harris (1990) 55 SASR 321; R v Lane (2011) 221 A Crim R 309; R v Lucas [1981] QB 720; R v Pringle [2017] SASCFC 9; R v T, WA [2014] 118 SASR 382; R v Thomas [2015] SASCFC 55; R v Zoneff (2000) 200 CLR 234, discussed.
Bereng v R [1949] AC 253; Browne v Dunn (1893) 6 R 67; B v R (1992) 175 CLR 599; Eade v R (1924) 34 CLR 154; Edmunds v Edmunds and Ayscough [1935] VLR 177; James v R (2013) 39 VR 149; Longeran v R [1963] Tas SR 185; R v Brady [2015] SASCFC 183; R v Dibble (1908) 1 Cr App Rep 155; R v Forrest (2016) 125 SASR 319; R v Franklin (2001) 3 VR 9; R v H, ML [2006] SASC 240; R v Helps [2016] SASCFC 154; R v Pelly [2015] SASCFC 25; R v Rose [1977] Qd R 280; R v Soma (2003) 212 CLR 299; Taylor v R (1918) 25 CLR 573, considered.

R v QUIST
[2017] SASCFC 37

Court of Criminal Appeal:  Peek, Blue and Lovell J

PEEK J.

1. Appeal and application for permission to appeal against a conviction of arson.

   Introduction

2. As at December 2013, Ms Shilane Quist (to be referred to as ‘the appellant’) very frequently attended at the Australia Post shop (‘the AP shop’) situated in the Parafield Gardens Shopping Centre (‘the shopping centre’) to visit her mother, Ms Heather Quist, who was the licensee of that business.  The appellant also worked there from time to time.[1]

   [1]    The witness, Ms Bunting, a regular customer, saw the appellant there so regularly that she believed that she worked there full time.

3. At approximately 5:15pm on 23 December 2013, when a significant number of members of the public were still present at the shopping centre, and at least one shop, Drake’s Foodland (‘Foodland’) was still open for business, a fire started in the disabled persons’ toilets (‘the DP toilets’) about 15 metres from the AP shop.  The fire was contained to the DP toilets but caused in excess of $30,000 damage.  The appellant was the first person to be seen by any known witness to be present at the scene of the fire, and she was the only person to be injured by the fire.

4. On 1 November 2014 the appellant was charged with the offence of arson in relation to that fire and on 21 June 2016 was convicted by majority jury verdict.  The case against the appellant relied on an accumulation of circumstances which taken together excluded any reasonable hypothesis consistent with innocence.  On the prosecution case, those circumstances included the following:[2]

   -that “extremely strong” DNA matches to the appellant (probability ratios of more than 19 billion to 1) were located on each of the screw caps of two bottles containing petrol which were found in the roof space above the DP toilets (and were obviously intended to ignite and spread the fire);

   -that it was common ground that the CCTV footage, exhibit P9, showed the appellant leaving the AP shop and walking in the direction of the nearby DP toilets about seven minutes prior to showing a bright orange flash which was produced by, and at the moment of, the fire event which resulted in the appellant’s injuries;

   -that the time to walk directly from the AP shop to the scene of the fire was significantly less than seven minutes and that, on the prosecution case, that time difference was to be accounted for by the appellant’s preparations for the fire, culminating in her lighting a match which instantly caused ignition;

   -that the appellant was the first person seen, by any known witness, to be present at the scene of the fire; and was the only person injured by the fire;

   -that prosecution expert evidence indicated that the fire on ignition immediately produced a vapour explosion which caused both the appellant’s injuries and the orange glow on the CCTV footage; acceptance of this “vapour explosion” theory of how the appellant suffered her injuries inexorably led to the conclusion that it was she who lit the match igniting the fire; and

   -that the appellant gave significantly different accounts to various people on various occasions in the period commencing from immediately after the fire up to, and including, her evidence at trial.

   [2]    Summing Up, AB 225-226.

   The grounds of appeal against conviction

5. The grounds, and proposed grounds, of appeal against conviction appear (without their particulars which are set out below) as follows:

   1.   The learned Judge erred in failing to direct the jury adequately in relation to the expert evidence of the fire expert Mr Levy.

   2.   The learned Judge erred in failing to direct the jury adequately in relation to the alternative explanations for the presence of the Appellant’s DNA and the application of the burden of proof to those alternatives.’

   3.   The learned Judge erred in admitting the statement of the Appellant recorded in the hospital record (T16).

   4.   The fair trial of the Appellant miscarried in that the alleged motive of the Appellant relied upon by the prosecution was not supported by the necessary evidence.  Alternatively, the learned Judge erred in failing to direct the jury that before they could rely upon the prosecution case of a motive, it was necessary for the jury to find that the evidence did indeed prove such a motive and the basis upon which they could so find.

   5.   The learned Judge erred in failing to adequately direct the jury in relation to the alleged lies of the Appellant:

   5A     The fair trial of the Applicant miscarried as a result of:

   (a)    The admission of Exhibit P8; and

   (b)    The admission of evidence from Constable Schuurmans that he had not previously had someone proffer a witness statement unsolicited (T154-155).

   6.   The verdict is unsafe and unsatisfactory and against the weight of the evidence:

6. On 26 September 2016, a single Judge of this Court granted permission to appeal on grounds 1, 3 and 4 and referred the question of permission on the remaining grounds of appeal 2 and 6 to this Court.  Grounds 5 and 5A did not require permission.  On 21 October 2016, this Court heard full argument including that sought to be put on proposed grounds of appeal 2 and 6 and reserved judgment. 

7. 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

8. 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). 

9. 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].

10. 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

11. The drafting of ground 6 of appeal reflects a recent trend in notices of appeal to assert that a guilty verdict in a criminal trial is “against the weight of the evidence”.  These words connote that the appellant proposes to undertake the burden of demonstrating that the jury should have found that the evidence in favour of a verdict of not guilty (“the weight of the evidence”) was greater than the evidence in favour of a conviction.  Of course, the true burden on a criminal appellant is much less; it is simply to demonstrate by reference to the precepts in M v The Queen[5] that it was not open to the jury to find that the prosecution evidence was such as to produce satisfaction beyond reasonable doubt.  The sooner this verbiage “weight of the evidence” is relegated to its home in the civil courts, the better.

    [5] (1994) 181 CLR 487, in particular the passage from the last paragraph at 492 to the first paragraph at 495 (Mason CJ and Deane, Dawson and Toohey JJ).

12. There are other infelicities in the drafting of ground 6 of appeal, but I simply indicate that I do not take a restricted approach to the question of whether the verdict was unreasonable; I proceed by way of independent review of all of the evidence and apply the precepts in M v The Queen in doing so.

    Ground 6, particular 6.1

    6.1Both the fire expert evidence and the DNA expert evidence did not exclude an hypothesis consistent with innocence.

13. The argument put in support of particular 6.1 is in effect, like some of the other arguments of the appellant in this case, to urge that a particular fact or circumstance be considered without reference to the whole of the circumstantial evidence.  Such arguments ignore the principle that all of the circumstantial evidence is to be considered, as explained by the High Court in R v Hillier[6] and more recently in R v Baden-Clay.[7]  Thus in R v Baden-Clay, the court stated:[8]

    For an inference to be reasonable, it “must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”[9] (emphasis added).  Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”[10] (emphasis added).  The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[11]

    Further, a criminal trial is accusatorial but also adversarial.  Subject to well‑defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.”[12]

    [6] (2007) 228 CLR 618.

    [7] [2016] HCA 35.

    [8] [2016] HCA 35, (French CJ, Kiefel, Bell, Keane and Gordon JJ).

    [9]    Peacock v The King (1911) 13 CLR 619, 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104.

    [10] R v Hillier (2007) 228 CLR 618, 637 [46]; [2007] HCA 13 (footnote omitted).

    [11] R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535; [1984] HCA 7.

    [12] Nudd v The Queen (2006) 80 ALJR 614, 618 [9]; 225 ALR 161, 164; [2006] HCA 9. See also Ratten v The Queen (1974) 131 CLR 510, 517; [1974] HCA 35; Doggett v The Queen (2001) 208 CLR 343, 346 [1]; [2001] HCA 46.

14. In the present case, it is not correct to postulate that some of the evidence (namely, the expert fire evidence and/or the DNA evidence) did not exclude an hypothesis consistent with innocence (and, implicitly, that the appellant’s conviction is therefore unreasonable).  Rather, the reasonableness of the conviction is to be adjudged by reference to all of the evidence. 

15. I turn to consider the evidence in the following order:

    -The circumstances surrounding the fire.

    -The DNA evidence.

    -The investigation of the fire – a conflict between two fire experts.

    -The sighting by Mr Huckstepp of a male leaving the male toilets.

    -The material referred to in sub-grounds 6.2 and 6.3

    The circumstances surrounding the fire

16. On 6 March 2014, in circumstances considered below, Detective Schuurmans received from the appellant’s brother, Mr Bruce Quist, a copy of CCTV footage (‘the CCTV footage’), as well as a document which reproduced a series of stills from that footage, with some typed written commentary.

17. The CCTV footage, which became exhibit P9, depicted the appellant leaving the AP shop.  Seven minutes later, a bright orange flash is seen.  It was common ground that that flash was produced by, and at the very moment of, the fire event that resulted in the appellant’s injuries.[13]

    [13]   The appellant sustained burns to 23.5 per cent of her body.  The areas which were burned were: upper chest and lower neck; both forearms on both back and front; a strip across the lower back; patches on both knees; and a strip on the dorsum (top) of each foot: Greenwood T162.

18. Witnesses at the shopping centre gave evidence that their attention was drawn to the fire when they heard a woman screaming.  Shortly afterwards, the appellant was taken through the shopping centre to the AP shop, where first aid was administered by a member of the public.  Three Foodland employees, Mr Huckstepp, Mr Sikora and Mr Stephens, using powder fire extinguishers, extinguished the fire prior to the arrival of the fire service and the police.  

    The DNA evidence

19. In the ceiling space, above and near the exhaust fan, police later located six plastic soft drink bottles, all of which contained petrol (as confirmed by forensic testing).  The presence of these bottles indicated that whoever lit the fire intended that it should spread beyond the toilet cubicle.  Two of the bottles had sustained heat damage to the bottom and could not be rested in a standing position.

1. The six bottles of petrol were carefully removed from the ceiling space, taken away from the toilet area, and then swabbed for the presence of contact DNA.  Two “extremely strong” DNA “matches” to the appellant (likelihood ratio of more than 19 billion to 1) were found on the screw caps of two of these bottles.[14]  The following results were obtained:

   [14]   Ms Windram gave evidence that the term “extremely strong” is reserved for only the highest probability DNA matches – there is no higher level expression irrespective of the degree to which probability ratios might be higher than in the present case.

Item/Exhibit	Result of DNA analysis
2 Litre Coke Zero bottle lid	Insufficient DNA for profiling.
Pepsi bottle lid	3 contributors, dominant contributor 19 billion times more likely to be appellant than unknown, unrelated individual.
2 Litre Coca-Cola bottle lid	Insufficient DNA for profiling.
Second 2 litre Coca-Cola bottle lid	Not tested.
2 Litre water bottle lid	2 contributors, dominant contributor 19 billion times more likely to be appellant than unknown, unrelated individual.
V8 juice bottle lid	Insufficient DNA for profiling.

1. This DNA evidence is strongly probative of guilt of the charge for a number of reasons which include the following.

2. First, Ms Windham testified that the two matches have an extremely high probability ratio of more than 19 billion to 1 and are thereby to be accorded the highest recognised level of strength, “extremely strong”.  Second, the prosecution evidence of procedures taken to avoid contamination was clear and the theory postulated by counsel for the appellant (who called no DNA expert) to account for the presence of the appellant’s DNA on the two screw caps was highly far-fetched.  Third, if the DNA evidence is accepted, it is difficult to postulate (and the appellant did not attempt to do so in addressing the jury or on appeal) any scenario whereby the appellant could have deposited her DNA on the bottle caps by direct transfer and not have been guilty of the charge against her.[15]

   [15]   In her evidence, the appellant eschewed any connection with any of the bottles found at the fire scene and stated that no bottles of that type were to be found at her home.  She made no suggestion at all that her DNA could have been transferred to the two bottle tops in innocent circumstances such as touching a bottle top before it contained petrol; and no such scenario is in any way suggested by anything in the evidence or put on appeal.  In those circumstances, the recent decision of the High Court in R vBaden-Clay [2016] HCA 35 confirms that it is not for this Court to fashion a hypothesis that is eschewed by the appellant.

   A highly far-fetched theory of innocent indirect DNA transfer

3. Detailed evidence was given by the fire expert Mr Wynne that at about 7:00pm he directed fire investigator Mr Ruxton to use a ladder to reach the bottles in the ceiling; to only handle them by the lower part, thus avoiding the area of the screw top area; and to hand them to himself and Mr Murphy who each carefully carried the bottles outside of the toilet area without placing them on the floor.  All three used fresh gloves.  The bottles were then placed on the floor away from the toilet area, and were there swabbed using fresh gloves.

4. At trial, counsel for the appellant nevertheless suggested a possibility that DNA from the appellant may have been deposited on the bottle lids after the fire on the basis that, although the bottles were placed on the floor well away from the toilet area, the appellant had passed through that same general area at a little after 5:15pm, just after being burned, and may have shed DNA as she did so.

5. Of course, if that were so, any DNA shed by the appellant at a little after 5:15pm would have fallen to, and settled on, the ground long before the bottles were taken from the roof by the investigators at about 7:00pm, a time difference of in excess of 90 minutes.  However, the appellant (without calling any expert DNA evidence) sought to postulate that DNA on the ground previously shed by the appellant might have been “reinvigorated” (whatever that might be thought to mean) into the air by the passage of various persons in that area of the shopping centre and then again descended to the ground, just happening to settle on the two tops of the upright bottles which happened, at that precise moment, to be in that position for the very short time that it took for Mr Ruxton to take the swabs from them.

6. Unsurprisingly, Ms Windram, the DNA scientist, described the possibility of transfer through this mechanism as “an unlikely possibility” in cross-examination, although she could not entirely exclude it.  She explained in re-examination why this possibility was indeed unlikely:

   QLet’s say there is DNA sitting on a surface.  Someone walks past, reinvigorates it and it circulates in the air and they collect a part of it on their clothing?

   AThat’s a possibility.  It depends on the scenario we are talking about.  If we are talking about a public shopping centre, we need to remember there were hundreds of people visiting this shopping centre who are also shedding their DNA and if this was a really good explanation for it then we might expect a really complicated mixture of many individuals on the spot because their DNA would also be getting reinvigorated into the air as well.

   QThe sample you receive, that wouldn’t be classed as the type of complicated sample you were just referring to, would it?

   ANo, at Forensic Science we have the ability to interpret DNA profiles consisting of four contributors.  Anything beyond four contributors is too complex for us to be able to interpret.

   QI want you to assume the fire is about quarter past 5.  The accused has walked past that area at roughly that time.  It’s then about 90 minutes, sometime after 7 o’clock that the bottles are placed in that area and in the intervening period you've had police, firemen and the shopping centre evacuated of people from the Foodland, all people walking through that area.  Do those factors undermine the probability of Ms Quist’s DNA floating in the air to land on a bottle?

   AThe propositions that are being put to me I cannot exclude the possibility but I would consider it to be an unlikely possibility.

   QIf we just assume for the moment that there is Ms Quist’s DNA in the air at this particular point and it is causing contamination on the lids.  If we have multiple lids in the same location, would you expect that contamination to be occurring on all of the lids, not just two of them, for example?

   AYes, all of the lids.   (Emphasis added)

7. The appellant pointed to the fact that DNA matching that of the appellant was found on only two of the bottles in circumstances where, on the prosecution case, the appellant would have handled all of the screw tops.  Ms Windram gave the following evidence about this:

   QYou mentioned that when you come into contact with different surfaces, the type of surface it is can affect how much DNA is left; is that right?

   AYes, it can.

   QIs something with ridges or more rough, more likely to leave DNA behind than something that is smooth to touch?

   AGenerally speaking, yes.

   QIs your experience that the lids of drink bottles with the grooves on, that would be something rough to touch?

   AYes.

8. 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

9. 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.

10. 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.

11. 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. 

12. 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

13. The prosecution case was that the appellant had entered the toilet cubicle; spread petrol around; left an open bottle containing petrol near the toilet itself; walked to the door and lit a match to ignite the petrol as she was leaving; and that a vapour explosion or flash point fire resulted from the accumulation of petrol vapours in the air, causing burns to the appellant.

14. Mr Wynne gave evidence about two related phenomena – “vapour explosion” and “flash point fire” – which may occur when petrol vapours are released into the air and mix with oxygen; if the concentration of vapours in the air in a confined space reaches a level known as the “flammability limit”, and a source of heat or ignition is introduced, an explosion can occur resulting in a flash point fire.

15. Mr Wynne stated that petrol vapours may be released into the air by petrol being placed in an open container or being poured or splashed about and that the more petrol vapours that are released, the larger the flame produced if ignition occurs.  He considered that the presence of petrol together with a source of ignition (and matches were located in the toilet doorway) supported the theory that a flash point fire had occurred, although there were no clear indicators from the nature of the fire damage to the toilet itself to either support or undermine that conclusion.

16. However, the prosecution contended that, although the nature of the fire damage to the toilet of itself did not further advance the prosecution theory, the evidence of the condition of a backpack which contained documents in the accused’s name (located by police[16]) did do so.  The prosecution contended that the plastic front of that backpack had been badly burned and that this damage, coupled with the lack of burns to the front of the appellant’s body, supported an inference that the backpack had been positioned in front of her body when the burns were sustained, thus indicating that the appellant had turned the backpack around (and thus in front of herself) in order to access the box of matches and or the plastic bottle of petrol later found on the floor.[17]

    [16]   The evidence about precisely where the backpack had been located by police was unclear.  Police officer Nelligan located the backpack against a wall near the scene of the fire (exhibit P1, photo 6).  He understood however that it had been located in the appellant’s car and moved inside.  The jury asked a question about the matter (T204-205).

    [17]   In cross-examination, the appellant was asked about the position of her backpack at the time she approached the door of the disabled toilet.  She said she recalled that it was over her left shoulder.  When confronted with the evidence of the damaged backpack, the appellant said she had been confused, and she indicated a different position.

    The defence case:  The backdraught effect

17. The appellant called Mr Levy, a qualified expert in fire investigation.  He advanced a defence theory which provided a potential explanation for the appellant having been close to the fire at the time of the orange flash without having been the person responsible for lighting it.  This was the backdraught effect which may occur when a fire which is smouldering within a “relatively airtight” space, dies down because it is deprived of oxygen through the production of hot gases.  In such a situation, if oxygen is suddenly introduced, a backdraught or smoke explosion may result, causing a fire to flash up again, potentially involving a wall of flame.

18. Mr Levy stated that if the room is not sufficiently airtight, hot gases will be free to escape the room, and oxygen will be free to enter, meaning that the necessary pre-conditions for a backdraught effect will not have been established.  In cross-examination, he accepted that his theory of backdraught effect rested on a factual assumption that the door of the toilet had been closed during the fire and agreed that had the door been open, the conditions necessary for the backdraught would be less likely to have developed.  It is to be noted that while Mr Levy initially advanced the opinion that smoke marks on the toilet door indicated that the door had been closed at the time of the fire, he reviewed this evidence in cross-examination and agreed that the damage visible on the door could have occurred whether door was closed or open.

19. Mr Levy also accepted that the existence of a hole into the roof cavity left by the removal of the ceiling fan indicated that hot gases were thereby able to escape the room and oxygen was free to enter.

20. During the prosecution case, Mr Wynne had given evidence which tended to indicate that the backdraught effect theory was unlikely.  He had stated in evidence-in-chief (and re-examination) that there would have been an escape of hot gases both through the hole in the ceiling (the occurrence of which was confirmed by the observed heat damage to the bottles containing petrol that had been in the roof space referred to above) and through the doorway if the door were ajar.  During cross-examination, he conceded that a backdraught effect was one possibility on the examination of the scene that he conducted but considered that the amount of ventilation to the area during the fire reduced the likelihood of it having occurred.

    The sighting by Mr Huckstepp of a male leaving the male toilets

21. Mr Huckstepp, a Foodland employee, gave evidence that he was in aisle 10 in Foodland when he heard a female yelling or shouting.  He went to the front of the shop and saw smoke.  He grabbed a fire extinguisher from across the hall from the female toilet.  As he approached the DP toilet, he saw “probably about 10m away, there was a lady and she was accompanied by another lady helping because I think she was injured by the fire.”  Mr Huckstepp, acting together with a fellow Foodland employee who arrived simultaneously, had the fire wholly extinguished within two minutes.  In cross-examination appears the following passage:

    QYou grabbed the fire extinguisher?

    AYes.

    QFrom the across the hall from the female toilet?

    AYep.

    QAnd pulled the pin on it, so you could start using it?

    AYes.

    QAnd that the [sic at that] point you noticed, as I understand it, a male exiting one of the other toilets?

    AYeah, I think.  I think there was to the left-hand side and he sort of didn’t really think anything of it, he thought ‘What’s going on there?’.

    QLet’s start at the beginning.  You pulled the pin to use the fire extinguisher on the middle toilet which has smoke billowing out?

    ABillowing out, that is correct.

    QBlack smoke I presume?

    APure black smoke.

    QAnd the light of flames from inside, on the outside, and as you do that a male walks out of one of the adjacent toilets?

    AYeah, would have been - I can’t 100% remember, I think it was to the left which is the male toilet I think.

    QHe didn’t say anything to you?

    ANo.

    QUnderstandably you were too busy to say anything to him?

    APrecisely.

22. At trial, defence counsel referred to this matter in the course of her address; she emphasised that it is recorded that the appellant said that she saw a male person (‘the unidentified male’) well before she could have known that Mr Huckstepp would give a police statement in the terms referred to above.

23. This, as far as it goes, is correct; but it does not go very far at all.  The evidence that Mr Huckstepp gave was that he saw the unidentified male coming out of the separate male toilet rather than the separate DP toilet; and that that person appeared to be quite oblivious to the fact that a fire had been occurring in the separate DP toilet.

24. Clearly Mr Huckstepp did not consider, either at the time of the incident or when giving evidence, that the unidentified male was connected with the DP toilet fire, and there is no reason why he should have.  The male toilet and the DP toilet were separate and had separate entrances.  Although the “vapour explosion effect” does employ the word “explosion”, that is not to suggest that such explosion of vapour is accompanied by a loud noise; indeed there is no evidence that any of the people in the mall heard any such noise, and certainly no evidence that it would have been heard from within the separate male toilet.  Equally, there is no evidence that smoke or fumes would have penetrated the inner sanctum of the male toilet, particularly bearing in mind the fire’s very short duration.

25. The jury was entitled to have regard to all of this evidence, and to the defence submissions, and indeed to consider whether the unidentified male might have been the real arsonist to the exclusion of the appellant.  But equally, the jury was entitled to reject that as a reasonable hypothesis in the light of all of the evidence and the facts and circumstances of the case.

    Ground 6, particulars 6.2 and 6.3

    6.2The Appellant’s statements relied upon as lies were made in circumstances when the Appellant had suffered a serious trauma, painful and serious injuries and was taking medication;

    6.3The Appellant was a person of previous good character with no provable motive to commit the crime who had denied on oath the commission of the offence.

1. It remains to refer to particulars 6.2 and 6.3.  As to particular 6.2, the matter of lies generally, and the circumstances in which various statements were made by the appellant, are considered in detail below in connexion with ground 5 of appeal, as is the matter of relevant directions by the Judge.  However, for the purposes of assessing the strength of the prosecution case in the context of the unreasonable verdict ground of appeal, I put aside entirely the matter of the various statements by the appellant and any contention by the respondent that such statements constitute evidence supporting the prosecution case or that they adversely affect the credibility of the appellant.

2. 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

3. 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 1

   1.1His Honour failed to adequately identify the significance of Mr Levy’s evidence in relation to the defence case

4. 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.

5. I consider that particular 1.1 has no substance.

   Ground 1, particular 2

   1.2The 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

6. 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)

7. Each expert conceded that the scenario preferred by the other was possible.  The resolution of the differences between them partly lay in an assessment of the underlying facts relied on by each and an assessment of the circumstances established by other evidence.  Importantly, evidence referred to above which suggested that oxygen would have been able to enter and exit the disabled toilet (the large hole in the ceiling and the partly open position of the toilet door) had the potential seriously to undermine the backdraught theory.

8. The Judge directed in a standard manner concerning the following principles to assist the jury in assessing the expert evidence:

   -that the jury were not bound to accept the opinion of either expert;

   -that the relevant factors for assessing the evidence included: the witnesses qualifications; their  partiality or otherwise; and the extent to which each expert’s evidence accords with other evidence that they find proved; and

   -that the opinions offered were only as good as the underlying facts on which they were based.

   Ground 1, particular 3

   1.3The learned Judge erred in directing the jury that a certain aspect of Mr Levy’s evidence had not been put to the prosecution expert without any assistance as to how that informed their deliberations and in the absence of an application by the Crown to call the crown expert in rebuttal

9. During the trial the defence expert was called without the appellant having complied with statutory notice requirements,[20] and with no written report being made available to the Court or the prosecution, as should have occurred. Specific objection was taken by the prosecution to leading opinion evidence about where the fire had originated which had not been put to the prosecution expert. The Judge allowed that evidence to be led, but indicated to defence counsel that a direction would be given pointing out this deficit; defence counsel acquiesced in that proposal. Neither prosecution counsel nor the Judge suggested that the failure gave rise to any positive inference (for example recent invention). Prosecution counsel did submit (correctly) that the jury could have regard to the fact that Mr Levy’s opinions had not been put to Mr Wynne who had the advantage of having attended and examined the scene first hand whereas Mr Levy could only work from photographs.

   [20]   Criminal Law Consolidation Act 1935 s 285 BC.

10. Importantly, the aspect of the evidence being referred to in particular 1.3 is a discrete issue concerning the precise site of the origin of the fire, and did not bear on the likelihood of either the vapour fire or backdraught theories.  Any dispute went only to the relative weight to be given to each expert’s evidence overall.

11. While it is clear that directions about the significance of a failure to comply with the rule in Browne v Dunn must be approached cautiously in a criminal trial,[21] here the jury would have understood no more than it ought to bear in mind that Mr Wynne, who had examined the scene, did not have the opportunity of commenting on this particular aspect of the evidence.  The specific matter under consideration was not particularly important, and the prosecution decision not to recall Mr Wynne to afford him the opportunity of commenting on this aspect of Mr Levy’s evidence was readily understandable.  The comments by the Judge did not result in a miscarriage of justice.

    [21]   MJW v The Queen (2005) 80 ALJR 329; Theophilus v The Police (2011) 110 SASR 420.

12. As to the important issue of the vapour fire – backdraught controversy, I consider that the Judge’s treatment of the evidence was adequate and that the jury was made well aware of the nature of its task.  No miscarriage of justice ensued.

    PROPOSED GROUND 2 OF APPEAL:  DIRECTIONS ABOUT DNA[22]

    2.The learned Judge erred in failing to direct the jury adequately in relation to the alternative explanations for the presence of the Appellant’s DNA and the application of the burden of proof to those alternatives.’

    [22]   Referred, permission not granted.

13. Defence counsel in her final address reminded the jury of Ms Windram’s evidence concerning a possibility of contamination by reading from the transcript directly.  The Judge also reminded the jury of Ms Windram’s evidence on that topic.  The jury sought, and was provided with the transcript of Ms Windram’s evidence, and the detail of her testimony was available to it during deliberations.

14. It is clear that the effect of the favourable directions on the burden of proof given by the Judge (referred to above at [52]), as they would have been understood by the jury, was that any alternative innocent explanation for the presence of the appellant’s DNA had to be excluded as a reasonable possibility before the DNA evidence could be used as part of the basis for a conviction.

15. I would refuse permission to appeal on ground 2 of appeal.

    GROUND 3 OF APPEAL

    The learned Judge erred in admitting the statement of the Appellant recorded in the hospital record (T16)

16. By a notice of pre-trial application of 10 June 2016 (‘the notice’), the appellant sought the exclusion of certain evidence.  This included the evidence presently referred to in ground 3 of appeal, a statement made by the appellant to a hospital worker on 10 January 2014.  The relevant portion of the notice is:

    The Applicant Shilane Quist C/- Phillips Green and Associates further seeks the exclusion of the following evidence at trial:-

    1.   In the statements of Ruxton (09.06.16) and Ween (09.06.16) alleged conversation between the applicant and her mother, as hearsay.

    2.   Statements by the applicant said to be made to medical staff whilst the applicant was in hospital and which the DPP advised they proposed to lead:

    a.   On the day of admission 23.12.13,

    b.   10.01.14.

    Given that the applicant was on strong pain killing and other medication, suffered severe burns, and would (at least on December 23^rd) have been in a state of “shock”, these alleged statements by the applicant would be unfairly admitted and will prejudicial that probative (sic: be more prejudicial than probative).

17. It can be seen from the notice that only discretionary exclusion was sought, reference being made only to the fairness discretion and the Christie discretion.

18. Importantly, the two occasions referred to in paragraph 2(a) and (b) of the notice (23 December 2013 and 10 January 2014) are distinctly separated in time and circumstances.  The transcript of the voir dire hearing demonstrates that the defence submissions did not address the later statement of 10 January 2014 specifically; rather, they focussed on the exclusion of the statements made to medical staff when the appellant first arrived at hospital on 23 December 2013 and on the unfairness of admitting statements made after the appellant had suffered painful and serious injuries and had been given strong pain medications.  Defence counsel, who bore the onus of establishing the facts on the basis of which exclusion was sought, called no evidence to establish any operative effect of any medication on the appellant relevant to the second occasion of 10 January 2014. 

19. The Judge in fact excluded evidence of the statements made on admission to hospital on 23 December 2013 (‘the date of admission’).  Unsurprisingly, he admitted the evidence of the conversation on 10 January 2014.

20. In the course of his submissions on the voir dire at trial, defence counsel never suggested that voluntariness was challenged, and with good reason.  There was simply no evidence which raised an issue concerning voluntariness.  On the face of the tendered hospital notes, the statement on 10 January 2014 was not made to a person in authority for the purposes of “definite rule voluntariness” but rather to an occupational therapist unconnected with the investigation or prosecution of criminal charges.[23]  Resort could only be made to “basal involuntariness” which, as Tofilau v The Queen[24] demonstrates, simply did not arise in the present circumstances.  There was here no evidence of any inducement, be it threat, duress, intimidation or promise of favour; nor was there evidence of a deleterious effect produced by the effects of drugs or alcohol.  Indeed, the appellant gave and called no evidence on the voir dire at all,[25] and it is to be noted that the author of the note recorded the appellant as “calm, teary, but comfortable discussing the events of her burns”. In the absence of any relevant evidence, an issue of basal involuntariness simply did not arise.

    [23]   See generally Tofilau v The Queen (2007) 231 CLR 396 and R v Jelicic [2016] SASC 58.

    [24] (2007) 231 CLR 396.

    [25]   In the substantive trial, the appellant later stated that she remembered speaking to the occupational therapist, but could not recall exactly what she said.

21. I would reject ground 3 of appeal.

    GROUND 4 OF APPEAL:  MOTIVE

    4.The fair trial of the Appellant miscarried in that the alleged motive of the Appellant relied upon by the prosecution was not supported by the necessary evidence.  Alternatively, the learned Judge erred in failing to direct the jury that before they could rely upon the prosecution case of a motive, it was necessary for the jury to find that the evidence did indeed prove such a motive and the basis upon which they could so find.

22. The two sentences in this ground postulate two alternative sub-grounds concerning first, admission of evidence of motive and second, required directions. 

    Admission of evidence of motive

23. The prosecution led evidence that at the time of the fire, the AP shop was in arrears of about $17,000 for rent and by May 2014 it also owed approximately $13,000 to Australia Post for stock supplied, with goods being supplied on a cash only basis.  It was an agreed fact that Ms Heather Quist subsequently reported a theft of $8,088.11 from the shop which was said to have occurred on 23 December 2013 during the confusion caused by the events of that evening.

24. No error can be said to have been made by the Judge concerning the admission of the evidence because no objection was ever taken to its admission, and nor was discretionary exclusion ever sought. 

25. The prosecution case at trial was that the appellant should be convicted on the cumulative basis of circumstantial evidence including the DNA evidence, the expert fire evidence and the other evidence (apart from the motive evidence).  The prosecution did not rely on the motive evidence in such a way as to constitute it “an indispensable intermediate link” in its case.[26]  Rather, the prosecution case was that, having regard to the intersecting categories of circumstantial evidence referred to above, any hypothesis of innocence propounded on behalf of the appellant had to be one that required the concurrent occurrence of a number of events, all apparently indicative of the guilt of the appellant, and all of which must be accounted for as occurring by coincidence.  The prosecution in effect contended that there comes a time when the number of suggested coincidences is so great that a jury is entitled to reject a hypothesis of multiple coincidences as not being reasonable or rational. 

    [26]   Shepherd v the Queen (1990) 170 CLR 573.

26. It was in this context that the prosecution contended that, although the objective facts concerning the appellant’s close relationship with her mother (a person who could benefit from the event in question) were explicable as coincidence when taken alone, when taken together with all of the other evidence, that evidence could legitimately assist the jury to put aside any unease concerning lack of motive and to find that the whole of the evidence in the case was inconsistent with any finding other than that the appellant is guilty of the offence charged.

    Did the Judge fail to give adequate directions concerning “motive”?

27. Insofar as it is suggested that it was necessary for the Judge to give a specific direction to the jury that they would have to be satisfied that the evidence “supported” the existence of a motive (such as that the appellant actually knew of her mother’s financial problem), so much was only common sense and would have been entirely obvious to the jury.  But the Judge, in the course of outlining the appellant’s case, did indeed specifically refer to her case as being that she knew nothing of her mother’s financial situation; and defence counsel sought no re-direction or further direction on the topic.

28. There is another aspect of this second sub-ground.  As to required directions concerning motive, the appellant’s outline of argument baldly refers to a passage in the judgment of Callinan J in Penney v The Queen thus:[27]

    [58]    In this case, motive was relied upon as being a factual basis for an inference of guilt.  Accordingly, it needed to be proven beyond reasonable doubt: Penney v R (1998) 155 ALR 605; R v Murphy (1985) 4 NSWLR 42. However, there was no evidence that the Appellant was aware of her mother’s financial position. To infer that the Appellant was aware of the $13,690 stock debt is pure speculation.

    [27] (1998) 155 ALR 605, 612.

29. However, no reference was made by counsel to the fact that since that decision, Australian Full Courts have respectfully, but consistently, treated the relevant remarks of Callinan J in Penney as both obiter and problematic.

30. In R v Gassy (No 3) (a case in which an unrepresented appellant relied on the same argument sought to be put here), the majority of the South Australian Full Court stated:[28]

    [28] (2005) 93 SASR 454, 542 (Bleby and White JJ). Debelle J would have allowed the appeal on other grounds, but did not dissent from the views of Bleby and White JJ concerning the matter under discussion here. The majority decision of the South Australian Court of Criminal Appeal in Gassy was later reversed by the High Court, but on a quite different ground and without calling into doubt the passages reproduced here.

    11.     Ground 25 – The direction as to motive

    11.1   The complaint

    [345]  In this ground, the appellant contended that the trial Judge had erred by failing to direct the jury that before guilt could be inferred from motive, it had to be satisfied that the motive asserted by the Crown had been proved beyond all reasonable doubt.

    [346]  In support of this ground, the appellant relied on a passage in Penney v The Queen[29] in the judgment of Callinan J:

    [29] [1998] HCA 51; (1998) 72 ALJR 1316.

    The appellant submitted that [the direction of the trial judge] confused intention with motive: if motive is to be relied on then it must be proved beyond all reasonable doubt.  The appellant argued that the trial judge, having referred to what was, in essence, motive, should have given a direction to that effect.

    Taken in isolation the passage could have a tendency to confuse motive with intention.  The appellant in this connection relied upon a passage from the unanimous judgment of a New South Wales Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) in R v Murphy (1985) 4 NSWLR 42 in which that Court accurately summarised the relevant principle stated in Chamberlain v The Queen (No 2) which applies if motive is to be used as a factual basis for an inference of guilt:

    In our opinion it is incorrect to direct a jury that the accused’s motive is a ‘subsidiary fact’ or a non-essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury’s satisfaction or on the balance of probabilities.  Motive is not merely a matter which may explain the accused’s conduct.  It is rather a fact directed to proof of the accused’s guilt; as Chamberlain makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.[30]   (Emphasis added)

    [30] [1998] HCA 51; (1998) 72 ALJR 1316, 1321 [25]-[26]. Each of McHugh and Gummow JJ expressed agreement with the reasons of Callinan J, and Kirby and Hayne JJ, at least impliedly, agreed with those reasons.

    [347]  It was submitted that the trial Judge should have given a direction to the jury along the lines emphasised in the passage quoted.

    11.2   The direction on motive

    [348]  The Judge directed the jury that motive was part of the prosecution case.  Her summary of the prosecution case referred to evidence concerning the “deregistration sequence” and the medical evidence relating to that sequence.  The Judge then said:

    The prosecution put evidence of the sequence of events before you as having given rise to a motive against the people whom Dr Gassy saw as principally responsible for his demise as a psychiatrist.  Of course, it is for you to say whether the deregistration sequence does provide a motive.

    Later, having referred to the evidence adduced by the Crown to the effect that the appellant had in 1994 suffered a delusional disorder, the Judge said:

    What Dr Woodford said to you, and Mr Brebner has referred to, is that persons suffering from a delusional disorder are often resentful and angry against those who they delusionally believe have hurt them.

    Well, we can all become resentful and angry.  The relevance of this evidence is that it might explain how the dishonest dealings behind the scenes which the accused allegedly attributed to Dr Tobin, could cause such strong feelings as to give rise to a wish to kill her, and engender the resentment and malice necessary to carry it out.

    [349]  Earlier, the trial Judge had instructed the jury in the conventional way on the circumstantial nature of the prosecution case.  The jury was directed that the charge could not be found proved beyond reasonable doubt if there was some reasonable explanation of the evidence consistent with innocence.[31]  The jury was told that it was open to them, if they thought it appropriate, to consider the various aspects of the prosecution case in combination so as to reach a conclusion which none of those aspects (strands) considered by itself would warrant.  However, the jury was not told that if they were to use motive as one of the strands, they had to be satisfied that the motive for which the Crown contended had been proved beyond all reasonable doubt.  If such a direction was required, it is plain that it was not given.

    [31]   Peacock v The King (1911) 13 CLR 619.

    11.3   Whether the direction was defective

    [350]  In our opinion, the trial Judge was not required to give a direction as to motive in the manner for which the appellant contended.  Neither Penney nor any other authority required such a direction.

    [351]  In Chamberlain v The Queen (No 2),[32] the High Court held that in a circumstantial case, a jury could draw inferences only from facts which were themselves proved beyond all reasonable doubt.[33]  The principle was stated by Gibbs CJ and Mason J as follows:

    [32] (1984) 153 CLR 521.

    [33] Ibid, (Gibbs CJ and Mason J) 538, (Murphy J) 570, (Brennan J) 599, but cf (Deane J) 626-7.

    Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt.  When the evidence is circumstantial, the jury, whether in a civil or a criminal case, [is] required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.[34]

    [34] (1984) 153 CLR 521, 536.

    [352]  However, that position was clarified by the later decision in Shepherd v The Queen (No 5).[35]Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, held that it was only those facts which were indispensable intermediate steps in the reasoning process towards an inference of guilt about which the jury had to be satisfied beyond reasonable doubt.[36]  Dawson J also said that if it was possible in an individual case to identify a fact, proof of which was indispensable to proof of the guilt of the accused, then the jury should be directed that it had to be satisfied beyond all reasonable doubt of the existence of that fact.[37]  However, in those cases where the evidence against an accused comprised (using Wigmore’s metaphor) strands in a cable rather than links in a chain such a direction was not necessary. 

    [35] (1990) 170 CLR 573.

    [36] Ibid 579, 581 and 583.

    [37] Ibid 579.

    [353]  Since Shepherd, it has been accepted that in a circumstantial case, a fact which is not an element of the offence charged or of a defence to be negated need not be established beyond reasonable doubt unless in a strictly logical sense it is regarded as an indispensable link in a chain of sequential reasoning heading to a finding of guilt.[38]

    [38]   R v Koeleman (2000) 2 VR 20, (Tadgell JA) 29 [27].

    [354]  The passage from the judgment of Callinan J in Penney upon which the appellant relies cannot be regarded simply as a recitation of the submission of the appellant in that case.  The use of the present tense in the word “applies” indicates that Callinan J was not simply referring to the law which had previously applied.  On the other hand, it is not readily to be supposed that Callinan J was intending to re-establish, in respect of motive, the law established by Chamberlain.  The judgment in Penney made no reference at all to Shepherd.  The Court of Appeal decision in Murphy was decided before Shepherd and has been regarded in NSW as based on an erroneous interpretation of Chamberlain.[39]

    [39]   R v Pantoja [1998] NSWSC 565, (B M James J).

    [355]  It may be that Callinan J was intending to refer only to those cases in which motive is an indispensable intermediate step in proof of the Crown case, but such cases are likely to be rare.  Motive (unlike intention) is seldom an indispensable element of an offence.[40]

    [40]   Cf R v Plomp (1963) 110 CLR 234, (Dixon CJ) 242, (Menzies J) 247 and 249. De Gruchy v The Queen (2002) 211 CLR 85, (Kirby J) 98 [51].

    [356]  The effect of the judgment in Penney in respect of motive in a circumstantial case has been considered in a number of decisions in New South Wales and Victoria.  In R v Pantoja[41] BM James J (with whom Wood CJ at CL agreed), noted that the passage in the judgment in Penney on which the appellant relies was obiter.  His Honour held that the passage should not be understood as modifying the law with respect to circumstantial evidence as stated in Shepherd, and that, in the circumstances of that case, establishing that the accused had a sexual passion for the deceased’s sister which may have provided a motive for the murder of the deceased was not an indispensable intermediate step in the proof of his guilt.  Adams J, in a separate judgment, expressed a similar view saying:

    [41] [1998] NSWSC 565.

    It seems to me that, especially having regard to the explanation of Chamberlain v The Queen (No 2) expressed in Shepherd v The Queen, no direction along the lines submitted by counsel for the appellant was called for in this case.  There may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of the guilt of the accused and thus will need to be established beyond reasonable doubt.  However, such cases must be rare.  This case was certainly not one of them.

    [357]  An application for special leave to appeal to the High Court on grounds which included the direction of the trial Judge concerning motive was refused, with the High Court saying:

    The second point concerned proof of motive.  There is insufficient reason to doubt the correctness of the approach taken by the Court of Criminal Appeal in relation to that matter to warrant the grant of special leave.[42]

    [358]  In R v Plevac[43] Grove J, with whose judgment James and Dowd JJ agreed, referred to the passage in the judgment of Adams J in Pantoja quoted above and to the Victorian case of R v Kotzmann[44] to which reference will be made shortly, and held that as the jury in that case was not being invited to infer guilt from motive alone, a direction that motive must be established beyond all reasonable doubt was not required.[45]  A similar view has also been taken in two other decisions of the New South Wales Court of Criminal Appeal.[46]

    [359]  In Victoria, in R v Kotzmann[47] two members of the Court of Appeal held that the absence of any reference to Shepherd in the judgment of Callinan J in Penney meant that the latter case should not be understood as having altered the position with respect to proof of the facts from which inferences were to be drawn as stated in Shepherd.[48]  In a separate judgment, Callaway JA considered that Penney had to be regarded as an endorsement of the statement with respect to proof of motive in Murphy.  This meant, in his view, that there were some facts which, even though not indispensable intermediate facts in the process of reasoning to guilt, had to be established beyond all reasonable doubt.  Reference was made to passages in the judgments in Gipp v The Queen suggesting that where evidence of propensity is relied upon as part of the proof of guilt, the basis for the inference should be proved beyond reasonable doubt.[49]  However, in a postscript to his judgment, Callaway JA indicated that where evidence of motive is simply one of the accumulation of circumstances relied on (strands in a cable) and not an indispensable link, it was not necessary for the jury to be instructed that they needed to be satisfied of its existence beyond all reasonable doubt.

    [360]  In subsequent decisions, the Court of Appeal in Victoria has continued to hold that Penney should not be regarded as having changed the law as clarified in Shepherd insofar as it concerns proof of motive.[50]

    [361]  The question did not arise for consideration in De Gruchy v The Queen[51] in which the question of directions to be given where there was no evidence of motive was considered.  It is to be noted, however, that in his statement of general propositions concerning the instructions to be given to a jury concerning motive, Kirby J did not suggest that the jury should be told that if motive was relied upon, they had to be satisfied that the facts indicating the presence of motive had to be proved beyond all reasonable doubt.[52]

    [362]  In the present case, the existence of motive was not an indispensable intermediate step in the finding of guilt.[53]  Its significance lay in the explanation it provided as to why the appellant, a resident of Sydney, had, on the Crown case, travelled to Adelaide, shot Dr Tobin and then returned almost immediately to Sydney.  It was one of a number of circumstances which, when considered together, could be used to infer guilt.[54]

    [363]  Finally, we mention that on the hearing of the appeal the appellant sought to argue that the directions of the trial Judge with respect to the matters relied upon by the Crown to establish motive were deficient in other respects.  It is not necessary to consider those submissions.  They were directed to complaints of the appellant in respect of which he had not been granted leave to appeal.

    [364]  In short, in our opinion, this ground of appeal is not made out.

    [42]       Pantoja v The Queen (2000) 21(2) Leg Rep C3a.

    [43] [1999] NSWCCA 351.

    [44] [1999] 2 VR 123.

    [45] [1999] NSWCCA 351 [28].

    [46]   R v Fowler [2000] NSWCCA 142 [83] and in the later (but unrelated) decision of R v Fowler (2003) 151 A Crim R 166 [73]-[77].

    [47] [1999] 2 VR 123.

    [48] Ibid, (Phillips CJ) [2]-[3], (Batt JA) [50].

    [49] [1999] VSCA 27; [1999] 2 VR 123 [27] referring to Gipp v The Queen (1998) 194 CLR 106, (Gaudron J) 115 [21], (McHugh and Hayne JJ) 132 [76], (Kirby J) 155 [139]. See also Edwards v The Queen (1993) 178 CLR 193 as to proof of lies evidencing a consciousness of guilt.

    [50]   R v Landells [2000] VSCA 84; R v Koeleman (2000) 2 VR 20, R v Nguyen (2001) 118 A Crim R 479; R v Cummins (2004) 10 VR 15.

    [51] (2002) 211 CLR 85.

    [52] Ibid 100-102 but cf 97 [47].

    [53] Ibid, (Gaudron, McHugh and Hayne JJ) 93 [30].

    [54]       Plomp v The Queen (1963) 110 CLR 234, 250 (Menzies J).

1. The Full Court in New South Wales[55] and in Victoria[56] have each consistently held (both before and after the decision in Gassey) that the statement of Callinan J in Penney was in the nature of obiter dicta and should not be followed.

   [55] Chronogically: R v Pantoja [1998] NSWSC 565; R v Plevac [1999] NSWCCA 351; R v Fowler (No 2) [2000] NSWCA 142; R v Fowler (2003) 151 A Crim R 166; Mah v The Queen [2006] NSWCCA 226; Darwiche v The Queen [2011] NSWCCA 62; Wood v The Queen [2012] NSWCCA 21.

   [56] Chronogically: R v Kotzmann (1999) 2 VR 123; R v Landells [2000] VSCA 84; R v Koeleman (2000) 2 VR 20; R v Nguyen (2001) 118 A Crim R 479; DPP v Debs [2002] VSC 225; R v Smith [2002] VSCA 219; R v Cummins (2004) 10 VR 15; R v Murphy [2004] VSCA 23; Withers v The Queen [2009] VSCA 306; Corsi v The Queen [2013] VSCA 323; R v Rapovski [2015] VSC 357.

2. In the subsequent decision of the Tasmanian Full Court in Neill-Fraser v Tasmania, Crawford CJ (with whom Tennent and Porter JJ agreed) referred to a number of the above New South Wales and Victorian decisions and concluded:[57]

   [174]  What was said in those cases is compelling and it should be followed.  I hold that whether facts establishing motive must be proved beyond reasonable doubt will depend on whether that fact is indispensable to the drawing of an inference of guilt.  In this case, that the appellant had a motive was not indispensable.  It was not a significant part of the Crown’s case.  It was open to the jury to reject the suggestion of motive but nevertheless infer guilt upon a consideration of a great amount of other circumstantial evidence.

   [57] [2012] TASCCA 2.

3. Subsequent to Gassy, in a decision of this Court in R v Newman, Gray J (with whom White and Kourakis JJ agreed on this point) held that:[58]

   Evidence of motive as an item of circumstantial evidence does not require proof beyond reasonable doubt unless it represents an indispensable step in the process of reasoning to guilty.

   [58] [2011] SASCFC 36, [66].

4. I also note that in a 2015 South Australian single Judge decision in Police v Forbes, Duggan AJ stated:[59]

   … motive was but one strand in the circumstantial case on the issue of intent.  The prosecution case did not stand or fall on the issue of motive or the reason for the conduct.  The motive advanced by the prosecution is neither an element of the offence of itself, nor an indispensable link in a chain of reasoning to establish an element of the offence.  Consequently there is no need to establish motive beyond reasonable doubt or, as the Magistrate stated, to exclude any other plausible possibility for the conduct beyond reasonable doubt.  [Citations removed]

   [59] [2015] SASC 94, [12].

5. I follow and apply the decisions of this Full Court in Gassy and Newman, together with the decisions of the Full Courts of New South Wales, Victoria and Tasmania referred to above.  The present was clearly not a case in which motive was an indispensable link in a chain of reasoning to establish an element of the offence and there was no requirement that motive had to be established beyond reasonable doubt in the present case.

6. I would reject ground 4 of appeal.

   GROUND 5A OF APPEAL:  ASSERTED MISCARRIAGE OF JUSTICE 

   5A     The fair trial of the Applicant miscarried as a result of:

   (a)    The admission of Exhibit P8; and

   (b)    The admission of evidence from Constable Schuurmans that he had not previously had someone proffer a witness statement unsolicited (T154-155).

   Sub-ground 5A(a):  Admission of exhibit P8

7. The evidence was that at some time prior to 6 March 2014, Detective Schuurmans asked either Bruce or Heather Quist for copies of CCTV footage from the AP shop and that on 6 March 2014 he received from Bruce Quist a copy of that CCTV footage, as well as a document which reproduced a series of still photographs from that footage, together with a typed commentary.  The still photographs and the typed commentary together became exhibit P8 at trial.  (The CCTV footage became exhibit P9 and has been referred to above.)

8. Exhibit P8 contains a record of the accused’s version of events as given to her brother Bruce Quist; in examination-in-chief, the appellant said that the narrative in P8 was not exactly in her words, but reflected what she told her brother Bruce Quist.

9. At the time that exhibit P8 was tendered by the prosecutor, defence counsel specifically consented to it being admitted absent strict proof.[60]  The version of fact set out in exhibit P8 is virtually identical to the version set out in the appellant’s witness statement dated 8 March 2014 (exhibit P10).

   [60]   In an affidavit sworn on 12 October 2016, Michael Foundas stated: ‘Ms Stokes and I agreed that I would tender the document through Detective Schuurmans and that I would lead evidence from Detective Schuurmans about the circumstances surrounding the provision of the document, and in particular, that the document was provided by Bruce Quist but it had been created at the appellant’s direction and represented her account of events.’

10. In all the circumstances, it is quite clear that a tactical decision was made that it was in the appellant’s interests to have what became exhibit P10 before the jury as part of the prosecution case.  Thus defence counsel at trial positively consented to admission of exhibit P8 and, it would appear, for a legitimate forensic reason.  There is no reasonable possibility that the trial miscarried as a result of its admission.

    Sub-ground 5A(b):  The admission of evidence from Constable Schuurmans that he had not previously had someone proffer a witness statement unsolicited

11. As to the evidence of Detective Schuurmans that it was unusual to be provided with a document such as P8, I agree that it was strictly irrelevant.  However, it was a snippet of evidence which was given no prominence and really involved very little discernible prejudice to the appellant.  In all of the circumstances, it is not established that there is a reasonable possibility that it may have affected the verdict.  Miscarriage of justice has not been established and I would reject ground 5A of appeal.

    GROUND 5 OF APPEAL:  DIRECTIONS CONCERNING ALLEGED LIES TOLD BY THE APPELLANT

    5.   The learned Judge erred in failing to adequately direct the jury in relation to the alleged lies of the Appellant:

    Particulars

    5.1   The learned Judge failed to identify the Appellant’s explanation for each of the separate alleged lies and the need to reject that explanation in respect of each lie before the statements could be acted upon as lies;

    5.2   The learned Judge erred in failing to direct the jury that even if the jury found that the Appellant had lied, it remained necessary for the jury to consider whether explanations other than a consciousness of guilt might apply to each of the separate lies, including panic, her confused state, possible lack of memory and subconscious reconstruction and the effects of medication.

    5.3   The learned Judge erred in failing to direct the jury that in determining whether the accused had lied, they were not entitled to take into account that the police had no motive to lie in evaluating the accused’s credibility and that the police officer had not previously had the particular experience of a person proffering him an account as in the case of the Appellant (see Prosecution address T306);

    5.4   The learned Judge erred in failing to direct the jury that it was necessary to find that each lie was proven other than by proof of the accused’s guilt before the jury could rely upon a lie as an implied admission of guilt.

    The course of the trial as it bears upon ground 5 of appeal

12. To better examine this ground, I first set out relevant aspects of the course of the trial.

13. The trial commenced at 10:40am on 14 June 2016.  The transcript shows that prosecution counsel informed the Court in the absence of the jury that he sought to “put before the jury all of the statements she’s made, all of the accounts that she’s given in relation to these events, not just hand-picking the two that were signed, the jury have been given an opportunity to consider them all and make of them what they will.”

14. Of course, defence counsel had been in possession of all of that material for some time and would have been well aware that there were significant differences between various of the appellant’s accounts; defence counsel would also have appreciated that such an inconsistency of itself was an obvious problem for her client.  It was against this background that she had submitted a notice of pre-trial application for directions dated 10 June 2016 (‘the notice’) whereby she sought the exclusion of statements made by the appellant on two separate occasions.

15. On the first day of the trial, 14 June 2016, the Judge heard argument in the absence of the jury.  As to the statements made on her admission to hospital on 23 December 2013, his Honour excluded that evidence on discretionary grounds (on the basis of the possible effects of the drugs that had been administered to her by that time.)  As to the second occasion, occurring on 10 January 2014 while the appellant was still in hospital, the Judge refused to exclude the evidence (and this refusal formed the subject matter of ground of appeal 3 dealt with above).

16. After those dispositions, prosecution counsel at 11:40am that same day commenced to open his case to the jury and made explicit that which was already very obvious to both defence counsel and the Judge.  He stated:

    You’ll hear how at various times during the investigation the accused gave a number of contradictory accounts to different people.  She gave an account to Briony Bunting, one of the people I mentioned earlier who helped at the scene of the fire and to Collin Ween, one of the firemen who attended.  She gave an account at the hospital and she gave an account to police.  You’ll hear how in some of those the accused is saying she never went into the toilets where the fire started and she explains her burns by saying some unknown unidentified man threw something at her.  In other accounts she gives there was no man.  The accused did go into the toilets but it was already on fire and that’s how she got burnt.  On the prosecution case the accused was telling lies about what had happened.  She told lies to shift the focus of the investigation away from her and she told lies to hide the fact she was guilty of the offence.        (Emphasis added)

    The appellant’s evidence at trial on 16 June 2016

17. In examination-in-chief at trial, the appellant’s evidence included the following.  That she was walking towards Foodland when she heard a noise near the disabled toilet; that she was concerned that someone may have left an animal in the toilet, as kittens had been dumped in that location before; that she noticed that the toilet door was ajar, opened the door and felt a gust of heat; that she noticed the cardigan she was wearing was melting and she headed towards the post office; that she had a memory of two images, one of a male with spiky hair and dark eyebrows with lighter olive skin and the other of a person with something over their head who spoke to her.  She expressed uncertainty about the accuracy of these images.[61]

    [61]   Appellant T214-215.

18. The appellant was cross-examined at some length, including as to the particular previous statements which the prosecution asserted to be lies.  It was made clear that what is often described as ‘consciousness of guilt’ was being suggested.[62]  The following passages are representative:

    [62]   I think that there is much to be said for the suggestion by Brennan J in Edwards v the Queen (1993) 178 CLR 193, 199 that: “The relevant inference is not that the accused realized his guilt but that in making his statement, he was unable to account innocently for the evidence that has been given against him”. However, this need not be discussed further for present purposes and I will use the term ‘consciousness of guilt’ for the sake of simplicity.

    Q     Are you making that up?

    A     No.

    QAre you making it up to try to explain how your account has changed so fundamentally from someone throwing something at you, to no mention of a man whatsoever?

    A     No.

    Q     Because there is no mention of a man in that statement, is there?

    A     No.

    …

    QThis account you’re giving is just rubbish.  You’re just making this up as you’re going along?

    A     No.

    Q‘I looked and saw the toilet door was closed’.  That whole account you give in that statement is a lie, isn’t it.  Just made up, isn’t it?

    A     No.

    Q     Because you started that fire, didn’t you?

    A     No.

    …

    QWhat I want to suggest to you is that you watched the CCTV footage and you came up with an account that matches that footage?

    A     You are wrong.

    QI want to suggest that you have been lying to police about what happened because you are trying to cover up the fact that you started that fire?

    A     Well, you are wrong.

    Q   I suggest that you learnt more about the police investigation of what had been going on, that you realised your initial account didn’t stack up and that’s why the suggestion of another person disappeared and is taken out of all of your subsequent statements?

    A     No.

    …

    QI want to suggest to you that your DNA is on those bottles in the roof because you put them there?

    A     No.

    QAnd I want to suggest that this whole account of opening the door and the backdraught and the person being there that you may or may not remember is just completely false and made up?

    A     You’re wrong.  It’s not false.  It’s not made up.

    The prosecutor’s closing address to the jury

19. The prosecutor in addressing the jury dealt with the identified lies at some length.  Again, it was made plain that ‘consciousness of guilt’ was being suggested.  He commenced thus:

    You’ve also heard of the number of accounts given by the accused.  It’s a matter for you what you make of them but you might think they are a series of lies told by the accused to shift focus away from her.  You might say: how do we know they are lies?  How do we know they are untruths?  Because even on the accused’s own account, those versions change and they change in fundamental ways.  There are two real versions: there is a man; there is no man.  They both can’t be true.  Let me take you through them.  The first account that the accused gives is to Briony Bunting.  She told Briony Bunting in the back of the post office that while she was going to the toilet, as she was going in, a guy came out of the toilet and threw something at her and then ran out the side door.  So a man comes out, throws something at her, something on fire at her and runs out the side door.  That’s the first account.  … Then we have Colin Wynne, the fireman, who came in.  He goes in and speaks to her and he asks ‘What’s going on?’.  She says she was walking past the toilets when the door blasted open and burnt her.  He asked if there was anyone else in the toilet.  She said she thought she saw someone throwing something into the toilet but can’t remember.  Now the account has changed in a number of minutes, Wynne getting there.  The man hasn’t thrown anything.  There has been no throwing of anything.  That's disappeared.  She is not going into the toilets like she was in the first account.  She is walking past the toilets this time and the door has just blown open on its own and she may have seen someone throwing something into the toilet but the man is still there but we are not sure.  He might have thrown something in there.  He might not have.  You might think they are fundamental changes in only a matter of minutes and can only be explained by the accused being burnt, under the stress and pressure of the situation, trying to come up with lies, come up with a story that explains how she is burnt but didn’t start the fire.

    …

    Her account is changing fundamentally and she is changing at points when she has had time to get over the distress of what happened, she has had time to think about events that occurred, she has known that this trial has been coming for some time and, yet, her account is still changing in her evidence.  The only explanation for that is that her accounts are fabricated, fabricated stories to try and hide or disguise her involvement in deliberately lighting that fire.   (Emphasis added)

20. At the close of addresses, the dialogue between bench and bar was brief and to the point; it was not in any way redolent of anyone being surprised or disturbed by anything.  Relevantly it was as follows:

    HIS HONOUR     … Ms Stokes, … is it your submission that I should give a circumstantial case direction?

    MS STOKES      Yes.

    MR FOUNDAS    I agree with that.

    HIS HONOUR     Mr Foundas, should I give an Edwards direction about lies?

    MR FOUNDAS    Yes, especially now I have addressed.

    HIS HONOUR     Is it your case that each of the statements made to the occupational therapist, the two made to Detective Brevet Sergeant Schuurmans in the statements and indeed the statements in P8, should all be the subject of an Edwards direction?

    MR FOUNDAS    Yes, and the comments made to Ween and Bunting.

    HIS HONOUR     Do you agree with that, Ms Stokes?

    MS STOKES      I do.

    HIS HONOUR     What about a prior inconsistent statement direction; is that necessary here?

    MR FOUNDAS    I think it overcomplicates it, especially in light of the lies direction.

    HIS HONOUR     Yes, the way the case has been pitched with lies.

    MS STOKES      I agree with that too.

    HIS HONOUR     I will give a motive direction and a good character direction.  Is there anything else?  An expert evidence direction?

    MR FOUNDAS    Yes.

    HIS HONOUR     Anything else?

    MR FOUNDAS    Not from me.

    MS STOKES      Obviously the normal things like the choice to give evidence or not.

    HIS HONOUR     I will give all the standard directions.   

    The Judge’s summing up:  The five identified pre-trial statements

21. The following five pre-trial statements by the appellant were identified by the Judge in his summing up as having been relied upon by the prosecution at trial as lies told from a consciousness of guilt.

    1.  Appellant’s statement to Ms Bunting on 23 December 2013

22. On 23 December 2013, Ms Bunting, a customer at Drakes Foodland, heard screams and saw smoke coming from the disabled toilet.  She saw the appellant being assisted by Heather Quist and accompanied them to the rear of the AP shop where water was poured over the appellant’s body.  Ms Bunting spoke to the appellant about the events leading to her being burned and the appellant stated that “somebody had thrown something at her and then run off”.  This statement was made in the immediate aftermath of the burns being inflicted and before ambulance staff arrived.

    2.  Appellant’s statement to Mr Ween on 23 December 2013

23. Mr Ween, an officer from the Metropolitan Fire Service, gave evidence that he arrived prior to ambulance staff but after the fire had been extinguished.  He was made aware that a person needed medical attention, approached the appellant and was told by her that “she was walking past the disabled toilet when the door blew open.”  He asked her if she saw anyone in the toilet, and she said that “she thought she saw someone throw something into the toilet, but she was not sure.”

    3.  Appellant’s statement to a hospital worker on 10 January 2014

24. The appellant was immediately admitted to hospital on 23 December 2013 where she was treated as an inpatient until she was discharged on 13 January 2014.  The note in the hospital records (exhibit P 11) taken by a hospital worker described a conversation on 10 January 2014 with the appellant thus:[63]

    She had been thinking about what happened.  She described that she was walking past public toilets at Parafield Gardens Shopping Centre, she heard a noise, went to shut the door someone – unknown voice, only saw a glance of someone wearing a hoodie said ‘don’t go in’, but as she went to shut the door there was an explosion.  The other person suggested that she go into the other toilet to put water on her burns.  She said that she was too scared and went to her Mother’s shop for help.  She was calm, teary but comfortable discussing the events of her burns.   (Emphasis added)

    [63]   This is the subject of ground 3 of appeal discussed above.

    4.  Appellant’s statement to Detective Schuurmans on 5 February 2014

1. The Judge, particularly in relation to statements 3, 4 and 5, extracted parts of the statements of the appellant containing a narrative of events rather than isolating the alleged inconsistencies between one or more of the five statements.

2. It was also necessary to identify what “lie” the prosecution was relying upon.

3. King CJ, in R v Harris,[172] gave guidance as to the type of lies that may be led to show a consciousness of guilt. He stated:

   Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total disregarding of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking “a case in which an accused gives untruthful evidence is no different from on in which he gives no evidence at all”: see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin.[173]

   [172] (1990) 55 SASR 321.

   [173] Ibid 323.

4. Having sounded a cautionary note about the tendency for a jury to think that if an accused has lied it must be because he or she is guilty, King CJ stated:

   The probative character of some lies rises from this tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of this kind are false denials of having been in the company of an alleged victim or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrong doing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies …[174]

   (Underlining added)

   [174] Ibid.

5. While I accept that King CJ was not being prescriptive about the type of lies that may amount to having been told from a consciousness of guilt it can be seen that on the facts of this case the appellant did not make a false denial of being at the scene. She was badly burnt and clearly at the scene. The appellant’s statements related to seeing someone else at the scene and this remained a largely consistent theme including her evidence in court. 

6. It was not open to the Judge, on the facts of this case, to leave the five statements as individual lies. The simple fact of five inconsistent and variable statements does not identify, of itself, the lie relied upon. The lie relied on here was simply not identified. For example, was the lie whether the door was ajar or not as she approached the toilet; or was it that she did not see anyone else at all? Perhaps both were lies. Perhaps one statement was the truth and the other four simply variations from the correct statement. If the case was, as the respondent now suggests, that the five statements taken together showed that she lied about her version of events, and in particular that there was someone else in the vicinity, that proposition needed to be made clear to the jury. How the jury could then use that lie needed to be explained. If the prosecution case was that the five statements should be looked at together to found a submission that she lied, that needed to be identified with precision. A failure to identify specifically what lie the prosecution was relying upon as a result of the five inconsistent statements was to leave to the jury the proposition that the appellant was a liar generally with respect to her version of events.

7. The same problem arises when the five statements are left as individual lies. The failure to specify what lie is being told in those circumstances is to leave the jury with the proposition that she is generally a liar. Such a proposition clearly could not be left as a piece of circumstantial evidence.

8. If the issue is simply left that the five statements show that the appellant is generally lying about her version of events, then proof of that lie is proof of the prosecution case – such proof is required to be beyond a reasonable doubt. It was of course the prosecution case that she was lying because she lit the fire.[175]

   [175] The distinction between the use of post-offence conduct, such as lies, as part of a circumstantial case, and its use to prove guilt directly, is helpfully discussed by Ormiston JA in R v Franklin (2001) 3 VR 9 at [122]-[130].

9. The reason why the identification of the lie is important is demonstrated by the unusual facts of this case even if one were to assume that the lie related to whether the appellant saw anyone in or near the toilet.

10. Clearly the prosecution case was that the appellant lit the fire and that there was no other person in the toilet at the time. The expert evidence called by prosecution, if accepted, meant that whoever lit the fire would have been burnt in the subsequent explosion. The appellant was the only person burnt in the explosion. Any version of events put forward by the appellant that suggested that someone else was in the vicinity who potentially lit the fire would, on the prosecution case, be a lie. The prosecution had to exclude any reasonable hypothesis consistent with innocence. To prove that the appellant was guilty of the charge they had to exclude the reasonable possibility that someone else lit the fire.

11. Indeed it should not be overlooked that when the appellant gave evidence, it was to the effect that she saw one possibly two people near the toilet area. The fact that there was possibly someone else there was generally consistent with her earlier statements; there were variations in description of the person and what she saw the person doing. If the five statements were capable of demonstrating a lie then it must follow that her evidence in court was a lie. Her evidence in court, although “tainted” in the same way as the statements, was not left, understandably, as a lie tending to show a consciousness of guilt. The Judge gave the standard direction that the jury should assess her evidence and the weight to be given to it in the same way as it would with the evidence of any other witness.

12. The jury having been told it could put the five lies (assuming they accepted them as lies), into the prosecution case as a piece or pieces of circumstantial evidence, to weigh up along with the other evidence in the case, no direction was given as to what to do with the consistent evidence (but on the prosecution case false) given in court. The same problem would arise even accepting that the jury could look at the five statements globally. What the jury made of the different approaches to substantially the same problem is, of course, unknown.

13. The case against the appellant was a circumstantial one. The Judge correctly directed the jury on the proper approach to circumstantial evidence. The difficulty that arose on these unusual facts was that to prove the appellant was alone in the toilet was, arguably, to prove the offence. Thus to prove the lie, that is that there was no one else in or near the toilet at the relevant time would, by inference, prove the offence. The asserted lie could be seen in these circumstances as an indispensable link in the chain of evidence.

14. To give an Edwards direction in such circumstances was to direct the jury that if it was satisfied that the lie was told (not satisfaction beyond a reasonable doubt) it could use the evidence as part of the prosecution case. The lie as a consciousness of guilt became simply a piece of circumstantial evidence to be put into the prosecution case and weighed along with the other evidence. That is the jury did not have to be satisfied beyond reasonable doubt that the variation and inconsistencies in the statements amounted to a lie told from a consciousness of guilt. However in this matter, to prove that the inconsistencies and variations amounted to a lie, that is that her version of events that there was someone else there was a lie told from a consciousness of guilt, was arguably to prove the offence. If no one else was there she must be the one who lit the fire.

15. In some cases, the fact that no one else was observed to be in the vicinity may not show that an accused is necessarily guilty. I accept that in some circumstances to suggest that another person was present at the scene of a fire may not be central to the defence case. In my view that is not this case. Assuming it may be possible to construct an argument that proving the lie here did not necessarily prove the offence, the risk that the jury would reason that way is substantial. The danger is that the jury may not see the lies as merely part of a circumstantial case but as critical to the ultimate issue of guilt. This is a case where the lie, characterised as one of a consciousness of guilt, is so striking that the jury may well choose to act upon it rather than upon the combination of it and other less certain matters relied upon to found a circumstantial case.[176] There is here a substantial risk of the jury reasoning impermissibly.

    [176]  R v Franklin (2001) 3 VR 9, 48-49 per Ormiston JA at para [117].

16. It was open to the prosecution to discredit the appellant’s evidence in court by use of the statements. On the unusual facts of this case it was not open to the prosecution to leave the statements individually as lies told from a consciousness of guilt. As discussed, I would hold the same even if the statements had been left “globally”

17. In any event there was a failure to precisely identify how the inconsistencies and variations amounted to a lie told from a consciousness of guilt and precisely how that lie was to be used in the prosecution case. That left the significant risk that, despite the directions from the Judge, the jury would reason that she was a liar generally. There was a significant risk that the jury would reason impermissibly despite the standard directions by the Judge.

18. I appreciate the difficulties and time constraints faced by a trial judge just prior to the commencement of a summing up. Counsel should give as much assistance as they can to the court particularly in relation to a submission that lies were told out of a consciousness of guilt. That involved, in this case, the prosecutor highlighting, as discussed earlier, why it was that the prosecution said that the inconsistencies and variations could amount to a lie. That did not occur in this case. The Judge was placed in an extremely difficult position given the late submission by the prosecutor for such a direction and then the agreement, without debate, by defence counsel.

19. The fact that a prosecutor makes suggestions to the jury that the lies may be used by the jury as evidence of a “consciousness of guilt” does not make it so. Whether to give an Edwards direction cannot depend on the opinion or purpose of a prosecutor nor on agreement by defence counsel although of course those matters should be given weight. The question to be answered by the judge must be the way the jury might use the evidence.

20. The fact that defence counsel agreed to the need for an Edwards direction at trial is a matter to be given weight on the appeal but cannot be determinative of the issue.

21. I would allow the appeal on ground 5.

    Other issues

22. There were also other problems in this matter that were not the subject of a ground of appeal. However they raise issues of importance particularly if the matter is to be retried. They concern the third, fourth and fifth statements.

    Third statement

23. The Judge directed the jury that:

    The third asserted lie was told to the occupational therapist at the Royal Adelaide Hospital on 10 January 2014, some 18 days or so after the fire. The occupational therapist’s note of what the accused said is in Exhibit P11. To the occupational therapist, the accused said that she was walking past the toilets. She heard a voice, went to shut the door. She saw a glance of someone wearing a hoodie. An unknown voice said ‘Don’t go in’. As the accused went to shut the door there was an explosion. The other person said she should go into the other toilet to put water on her burns.

24. The person to whom the statement was made was not called by the prosecution. The notes made by the occupational therapist were tendered without objection as a business record on the ground that the therapist was not called to give evidence. It may be that the occupational therapist was unavailable or that defence counsel was content with that course.

25. However a difficulty arose when the appellant was questioned by the prosecutor as the appellant denied making part of the statement. 

26. In cross-examination the appellant was shown exhibit P11 and asked the following questions:

    "QIs there anything that you've read there that you say you didn't tell the occupational therapist?

    "AI'm unsure what I said to her at the time.

    QBecause in that account you say that you heard a noise and you went to shut the door. Did you say that?

    ANo.

    QYou never said that.

    ANo.

    QSo the author of this note has written down something as part of your account that you just never said. Is that your evidence?

    A        Maybe she misheard wrong but I didn't say I shut the door.  (My Underlining)

27. I intend no criticism of counsel about this issue as it may be that the appellant’s evidence took both counsel by surprise. In his address the prosecutor said:

    Then we go to the medical records, the note of what she tells the occupational therapist, P11: 'Shilane discussed the event of her burns and stated she had been thinking about what had happened.' Now she has time to stop and reflect and consider what's gone on. She even says this. This is taken on 10 January 2014, a little over two weeks after the fire: 'She described that she was walking past the public toilets at the Parafield Gardens Shopping Centre. She heard a voice and went to shut the door.'

    So in this account there is a voice - the first we have heard of the voice - and she is going to shut the door. Not open the door but to shut the door, so the door is already open in this account. Someone, an unknown voice, who she only saw a glance of and was wearing a hoodie, so we have got this person with a hoodie.

    To Wynne [sic] she wasn't sure if there is a person. Now she is sure there is a person again and this person is wearing a hoodie and this person said 'Don't go in', so this person, who is no doubt being offered as the person who started the fire, is saying 'Don't go in there'. So you might think if this was a typo, she wouldn't make it twice. As she went to shut the door, there was an explosion. The other person suggested she go into the other toilet to put water on her burns.

    So now this person has had a conversation with her after the fire. 'You're burnt. Go next door and put some water on it'. This is the first we have had heard about that. She said she was too scared and went to her mother for help. At the time of giving this account, we see the note 'She was calm, teary but comfortable discussing the events of her burns'.

    (Underlining added)

28. The evidence of the appellant meant that the jury had first to determine the question of whether the appellant’s evidence of the discussion she had with the occupational therapist was correct or whether the occupational therapist’s notes were accurate and reliable.

29. Where there is going to be a conflict in the evidence between a witness and an accused, it is not appropriate for the prosecution to simply tender a statement of the witness. It leaves the jury in an impossible position when attempting to resolve a credit issue. There was no evidence before the jury as to when the occupational therapist made her notes or how she went about the task. The notes stated that the appellant was calm and teary. That tells the jury nothing about how the notes were taken by the occupational therapist. If called, she may have agreed that the notes were not a “word for word” account of what the appellant said.

30. As a result of the evidence of the appellant the prosecutor was forced into the question:

    QSo the author of this note has written down something as part of your account that you just never said. Is that your evidence.

    AMaybe she misheard wrong but I didn't say I shut the door.

31. This question highlights the difficulty.

32. I accept that possibly the appellant’s evidence on this topic caught both counsel by surprise. However once the conflict arose the prosecution needed to exercise caution about the statement being left to the jury as a potential lie.

33. The submission of the prosecutor that what the appellant said was a lie depended on the jury accepting the untested notes of the occupational therapist. It was only after determining that issue that the jury could consider the effect of what the appellant allegedly said.  A further problem was that, if the jury considered that the occupational therapist’s notes were accurate, then arguably, when giving evidence, the appellant was lying about what was said to the occupational therapist. No direction was sought in relation to that problem.

    Fourth statement

34. The Judge directed the jury:

    The fourth asserted lie was told to Detective Schuurmans in the accused’s statement to him on 5 February 2014. That statement is in Exhibit P7. In that statement the accused said to Detective Schuurmans: ‘I was walking between the animal welfare league and the toilets. I was trying to put my keys into my backpack so I had my hands in front of me. I heard a crackling sound. I looked and saw that the toilet door was closed. I can’t remember if anyone came out of the toilet. I saw a flash of light what I now know was an explosion’.

35. The appellant, when she gave evidence, alleged that Detective Schuurmans, when taking the statement, had been told by her that she had seen someone else but he had advised her to leave it out of the statement. The prosecutor in his address put his case to the jury as follows:

    She was asked about that change in cross-examination. What was her explanation for that? 'I told the police officer I did see someone but he told me to leave that out. He told me I didn't remember that and didn't put it in the statement'.

    …

    Why, in those circumstances, would the police officer ever be motivated to say 'You don't remember that. I know what you remember even though I wasn't there and I'm not going to include it in the statement'? You might think that explanation in itself just doesn't make sense.

    …

    If you accept his account ladies and gentlemen, if you accept this experienced police officer with no apparent motive to lie to you, no scratches of his credibility whatsoever in evidence, if you accept his account, then you can reject the accused's attempt to explain the chopping and changing of her story, as I said, that it was not put in. If that's the case, you might have no difficulty in finding that it is another lie, it is another story told by the accused to protect herself.

    (Underlining added)

36. The submission by the prosecutor involves the jury considering two lies not one. The first was that the appellant lied in her evidence about what the police officer had told her; the second that her statement was a lie as it contained no mention of seeing someone else as the other statements had.

37. Also it should be noted that the prosecutor put to the jury that the police officer had “no apparent motive to lie”. That was an unfortunate submission. True it is that the prosecutor made no mention of whether the appellant had such a motive but the implication is clearly apparent. Such a submission carries with it obvious dangers and it should not have been made.[177]

    [177] R v Brady [2015] SASCFC 183.

38. Having suggested to the jury that the appellant lied (at least by implication) in her evidence about what was said to and by the police officer, no direction was sought or given.[178] It appears that defence counsel did not put this suggestion to the police officer.

    [178] Whether such a lie, that is what she said in evidence about her discussion with the police officer, could amount to a lie going to a consciousness of guilt, was not put or argued.

1. The risk of the jury reasoning that the appellant lied to the police officer, one who had no reason to lie, and was therefore guilty, cannot be ignored.

   Fifth statement

2. The Judge directed that:

   The fifth asserted lie is what the accused said to Detective Schuurmans in her statement made on 8 March. That statement is in Exhibit P10. In that statement the accused said: ‘I re-entered the shopping centre and want [sic] into the ladies toilet to check myself in the mirror. I heard a noise which I thought sounded like the glass exit door on the side of the shopping centre being closed. I thought that someone was going to come into the toilet so I went into the toilet cubicle, sat on the seat and put my foot on the door stopping anyone from coming in. Nobody came into the toilet so I went out of the cubicle, checked myself in the mirror and then exited the toilet. I walked towards the supermarket, past the men’s toilet and past the disabled toilet. It is well-known throughout the shopping centre that people leave unwanted animals in the toilets as they are directly opposite the animal welfare league and hope that they would care for the animals. I heard a noise and I looked back to the disabled toilets. I could see that the door was ajar and I thought that there may have been an animal left in the toilet. I opened the door to the toilet and saw a bright flash. I remember being on fire and dropping to the ground’.

3. The prosecutor in his address to the jury said:

   Then we move to the contents of P10 itself, the 8 March statement. ... 'Thought someone was coming in so went into a cubicle. ... could see the door was ajar -' In other words, open: '- opened the door and saw a bright flash of light ... and dropped to the ground.'

   This person that was meant to be there has completely disappeared. No-one has thrown anything at her or tried to stop her from going into the toilet this time. No-one has told her to go and put water on herself in the other toilets like we had in the other accounts. She just walked past, heard a noise and opened the door.

   What's her explanation for the change of story here? It is yet another change and difference in fundamental ways. Her explanation is that Detective Schuurmans is up to his old tricks in not including details that she provided...(My underlining)

   …

   Let's not also forget ladies and gentlemen, that even in the accused's evidence, the accused's account of what was going on changed yet again. We heard for the first time out of all of those accounts, all of those people that she spoke to, all of these things she said, we hear for the first time of a man with spiky hair and a goatee. It's never been mentioned before. Never been mentioned to him. It is not the same man where you've remembered the description differently. Two men; a man with a hood over his head and a spiky-haired man. She is chopping and changing her account yet again.

4. The problems with this submission are the same as the previous statement. It contains an allegation of two lies not one. The same consequences follow and I will not repeat what I said above.

   Application of the proviso

5. I accept that the prosecution case was very strong. The error identified gives rise to a perceptible risk of a miscarriage of justice. This requires the verdict to be set aside unless this court is satisfied that no substantial miscarriage of justice actually occurred. I am unable to say that error identified was unlikely to have had any influence on the verdict. The natural limitations of proceeding on the record, when the error affects the juries assessment of the weight to be given to the appellant’s evidence, precludes a conclusion that the error would have had no effect on the verdict.[179] In these circumstances it would be inappropriate to apply the proviso.

   [179] Castle v The Queen; Bucca v The Queen [2016] HCA 46.

   Conclusion

6. I would allow the appeal on ground 5. I would dismiss the other grounds of appeal.

7. I agree with the orders proposed by Blue J.