R v Stevens - [2023] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEVENS
Criminal Trial by Judge Alone
[2023] SADC 70
Judgment of her Honour Judge Sutcliffe
16 June 2023
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - INCITEMENT
The accused is charged with one count of inciting the offence of arson of a motor vehicle, contrary to section 85 of the Criminal Law Consolidation Act 1935.
In lawfully intercepted telephone conversations, the accused and his associate discussed the recovery of a drug debt. The accused suggested that the debt be recovered by arranging for someone to burn the debtor's vehicle, and then threatening to burn down his house if the debt was not paid. Three days later, the offence of attempted arson of a motor vehicle occurred at the nominated address.
On the prosecution case, the accused incited his associate to commit the offence of arson of a motor vehicle and that he intended him to personally carry out the offence. The prosecution case in the alternative, is that the accused incited his associate to procure another person to commit the offence, and that this conduct establishes the offence of incitement to commit the offence of arson, in circumstances where the offence of arson of a motor vehicle was attempted.
The accused submitted the conversations did not support a finding beyond reasonable doubt that the incited conduct was the offence of arson of a motor vehicle. In the alternative, the accused submitted that the conversations were consistent with an intention to incite the procurement of a third person to commit the offence of arson, which is not an offence known to the common law.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 (SA) s 85 and s 267, referred to.
R v Crichton [1915] SALR 1, Haines v The Queen (2001) 80 SASR 363; SASC 347 [32]; R v Assistant Recorder of Kingston Upon Hull; Ex Parte Morgan [1969] 2 QB 58, 62.; R v Holliday (2017) 260 CLR 650; [2017] HCA 35; Walsh v Sainsbury (1925) 36 CLR 464 476, 477; [1925] HCA 28; R v Higgins (1801) 2 East 5; Walsh v Sainsbury (1992) 36 CLR 494, 476; R v Holliday ; R v Bodin and Bodin [1979] Crim LR 176; R v Sirat (1986) 83 Cr App R 41, 45; Najibi v R [2016] VSCA 177, considered.

R v STEVENS
[2023] SADC 70

Mr Peter John Stevens is charged with the offence of incitement to commit arson of a motor vehicle, contrary to s85 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case is that Mr Stevens incited Mr Vincenzo Martino to commit the offence of arson during telephone calls.
On 2 September 2020, Mr Vincenzo Martino complained to Mr Stevens in two intercepted telephone calls about a drug debt. He asked Mr Stevens to raise the matter with people he thought could arrange for the debt to be repaid. Mr Martino believed the debt was owed to him by a person who drove for an associate of Mr Stevens, who was referred to as ‘Amigo’.
Mr Martino claimed that if he did not get his money, he would burn down the debtor's house. Mr Stevens said he was better off doing that as he was unlikely to be repaid, but also agreed to make enquiries. Later, Mr Stevens said Mr Martino had to "burn it to the ground". Mr Stevens suggested that they arrange someone to burn a car to make a point. Mr Martino agreed and said he would organise something. Mr Stevens told him to make sure, and that he would then say that the house would be next if the money was not paid. Mr Martino agreed and said that he would go early and wait for the person to leave home and leave a baseball bat at the front of his house. Mr Stevens advised Mr Martino that the person he was looking for was not Amigo’s driver and told him to, "Go and do what you need to do", and that he wanted to see something on fire. Three days later, the offence of attempted arson of a vehicle occurred at the address that Mr Martino had said was the debtor's address.
There are seven telephone calls between the two men. It is an agreed fact that the participants in the calls were Mr Stevens and Mr Martino. The issue is whether the statements made by Mr Stevens prove beyond reasonable doubt that Mr Stevens incited Mr Martino to commit the offence of arson of a motor vehicle and intended that Mr Martino commit that offence.
Summary
The prosecution relies on a series of statements made by Mr Stevens encouraging Mr Martino to "burn it to the ground," that he wanted to "see some shit on fire mother fuckers" and challenging Mr Martino to follow through, once Mr Martino agreed with the suggestion to first burn a car and then to make a threat to burn a house.
Mr Stevens’ counsel submits that the statements made by Mr Stevens do not establish that he was inciting Mr Martino to commit the offence of arson of a motor vehicle. In the telephone calls, Mr Martino speaks of actions other than burning a car, including “smashing," and leaving a baseball bat at the debtor's house. Mr Stevens’ counsel argued that Mr Stevens' statements did not rise to anything more than an endorsement of the idea to burn something, which is insufficient to establish an incitement to commit the offence of arson of a motor vehicle.
In the alternative, it is submitted that to the extent Mr Stevens was referring to arson of a motor vehicle, the evidence does not establish that Mr Stevens was inciting Mr Martino to carry out the offence. It is submitted the evidence is consistent with Mr Stevens encouraging Mr Martino to procure another person to commit the offence, which is not an offence at law, or if it is, not one that was particularised by the prosecution.
Alternative path to liability
The prosecution submits that the evidence permits an inference that the accused incited Mr Martino to personally carry out the arson, but if that is not established, then in the alternative Mr Stevens is liable for inciting Mr Martino to procure a third person to commit the offence of arson. It was submitted that there is no requirement to particularise the form of liability of the incited person, as there is no requirement pursuant to s267 of the Criminal Law Consolidation Act 1935 that the alleged form of liability of an accused, be it as principal or as an aider or accessory, be particularised on an Information.
The prosecution’s alternative path to liability raises the issue of whether at law it is an offence to incite a person to procure an offence.
Verdict
For the reasons provided below, I have found the evidence does not exclude the possibility that Mr Stevens was encouraging Mr Martino to procure a third person to commit the offence of arson, and that in those circumstances the offence of incitement to commit the offence of arson of a motor vehicle is not proven.
General directions
Mr Stevens is presumed innocent unless and until his guilt has been proven beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the offence. To the extent that Mr Stevens has put forward a defence or innocent explanations, he does not have to prove them. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that Mr Stevens is probably guilty. In making findings of fact, I must rely upon the evidence. I must apply my common sense.
The evidence supports an inference that Mr Stevens is either involved in the trafficking of illicit substances and or associates with persons who do so. That evidence is not relied upon as discreditable conduct evidence. I draw no adverse inference to Mr Stevens from that evidence.
Election not to give evidence
Mr Stevens elected not to give evidence; he remained silent. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not and do not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I bear in mind that it is, at all times, for the prosecution to prove its case beyond reasonable doubt.
Circumstantial evidence
The prosecution case is substantially reliant on the inferences to be drawn from the words spoken in the telephone calls. I must only draw inferences which can be properly deduced from the evidence, rather than making guesses or engaging in speculation. A reasonable inference can be drawn from a combination of facts none of which viewed alone would support that inference. To find Mr Stevens guilty, I must be satisfied that his guilt is the only reasonable or rational inference from the proven circumstances. The prosecution cannot prove the offence unless it can exclude beyond reasonable doubt, any reasonable hypothesis consistent with innocence.
Elements of the offence
The elements of the offence of incitement to commit an offence are:
·That the accused engaged in conduct that incited a person to commit the intended offence; and
·The accused intended that the incited offence be committed.
Conduct that incites
Incitement is broader than conduct that originates or initiates. A person can commit the crime of incitement even if the person to be incited already planned to commit the intended offence. [1]
In R v Crichton,[2] Way CJ defined "incite" as follows at (3):
... the word 'incite' does not necessarily mean to originate or to initiate. There are many meanings of the word. The meaning of the Latin word from which it is derived is, 'to set in rapid motion, to arouse, to stimulate, to hasten, to urge forward, to encourage, to spur on,' and the meaning given in the Oxford Dictionary is 'to urge or spur on, or to stir up, to instigate, to stimulate'. There may be inciting - that is, inciting by originating the idea, and there may be inciting where the idea already exists.
[1] R v Crichton [1915] SALR 1, Haines v The Queen (2001) 80 SASR 363; [2001] SASC 347 [32].
[2] Ibid.
There is no requirement to establish that the incited offence occurred.[3] Once the urging is done, with the intention that the offence incited be committed, the offence of incitement is complete.[4] Providing the accused incited another, it is irrelevant that the latter is not influenced or unwilling to commit the offence[5]. There is no defence of withdrawal.[6]
[3]     R v Assistant Recorder of Kingston Upon Hull; Ex Parte Morgan [1969] 2 QB 58, 62.
[4]     R v Holliday (2017) 260 CLR 650; [2017] HCA 35, citing Walsh v Sainsbury (1925) 36 CLR 464 476, 477; [1925] HCA 28.
[5]     R v Assistant Recorder (n3); R v Higgins (1801) 2 East 5.
[6]     Walsh v Sainsbury (1992) 36 CLR 494, 476; R v Holliday (n4) [30].
Issues
In the circumstances of this matter the issues to be considered are:
·Whether the evidence proves that Mr Stevens incited Mr Martino to commit the offence of arson of a motor vehicle as opposed to encouraging other actions, and
·Whether Mr Stevens intended Mr Martino to commit the offence of arson of a motor vehicle.
If I conclude the evidence does not exclude the possibility that Mr Stevens was encouraging Mr Martino to procure another person to commit the offence of arson, the third issue is whether it is an offence to incite a person to procure a third person to commit an offence, in circumstances where no substantive offence is committed. It is convenient to deal first with this issue.
Is it an offence to incite another to procure a third person to commit a crime?
The prosecution refers to the authority of R v Bodin and Bodin.[7] In that case, the two accused were charged with inciting P to assault G. The prosecution case was that the accused paid P to arrange for G to be assaulted. The assault never occurred, and the money was taken back. The defence argued it was not an offence to incite, conspire or attempt to do an act that would involve no more than secondary liability for the offence, if it was committed, and there was no offence of incitement to counsel or abet.
[7] [1979] Crim LR 176 (‘Bodin’).
His Honour Judge Jones found that the offence was particularised as one where the incitement was that P assault G himself and found the accused not guilty. There was no evidence the two accused were inciting P to commit the assault himself. Judge Jones held that despite the lack of authority, it was not a crime to incite someone to be an accessory to a crime, as the act incited in the evidence was the procurement of a crime and not a crime. While the accessory before the fact is procuring, there is no crime he is a party to.
However, Judge Jones said: [8]
It may be that if the crime is eventually committed then it may be an offence to incite the accessory before the fact. But it does not apply here because P did not do the act incited.
[8] p 178.
The effect of the ruling was that the conduct incited by the defendant, must involve an offence by the person incited in the capacity of a principal offender. The prosecution’s argument is based on an assumption that Bodin was correct to hold that it is not an offence to incite an accessory to a crime, where the act incited is the procurement of an offence and not the crime itself. The prosecution argues, consistently with the obiter remarks in Bodin, that liability attaches if the offence is carried out. In addition, it is submitted that an attempt falls within the scope of the intended offence. In other words, it is argued that liability attaches where the incited person procures an attempted offence. The prosecution did not articulate the basis for why this reasoning should be adopted, other than to say that liability in these circumstances has not been excluded by the authorities.
The apparent rationale in Bodin for limiting liability for incitement of an accessory only to a completed offence, is that incitement is concerned with inciting a person to commit an offence. The author Peter Gilles in Criminal Law, noted that accessoryship is not an offence but represents a doctrine where a person may be incriminated in another’s offence by secondary participation, and for that reason, it was unlikely that a person could incite another to aid, abet, counsel or procure a third party’s offence. He noted the opposite view, is that incitement of a person to be an accessory is an offence, on the basis that if the incite acts, he or she will, by virtue of the doctrine of accessoryship be deemed to commit any such offence as is ultimately committed.[9]
[9] (Law Book Company, 3^rd ed, 1993) P653-654.
That the law is as stated in Bodin has been accepted by commentators.[10] The England and Wales Law Commission, referring to Bodin, stated that it did not appear that the incitement of another to aid, abet, counsel or procure (in other words, to make himself an accessory to) the commission of an offence by a third person is an offence known to the law.[11]
[10] English Law Commission, Inchoate liability for assisting and encouraging crime (Law Com No. 300, 2006), p 33, citing Smith and Hogan, Criminal Law (11th ed 2005) 357; Simester and Sullivan, Criminal Law Theory and Doctrine (2^nd ed 2003) 266.
[11] The Law Commission, A Criminal Code for England and Wales, (Law Com No 177, vol 2, 1989 pg 240 [13.19].
The Law Commission also observed: [12]
The reason for this is that aiding, and abetting is not in itself an offence. It attracts liability only on the commission of the substantive offence. Until that offence is committed the incitement is only to do the acts which may or may not turn out to be criminal.
[12] Ibid.
The Law Commission observed that the logic of that rule is undercut to an extent by decisions which have held that incitement to incite is an offence known to the law.[13]
[13] Ibid.
The existence of the common law offence of incitement to incite was accepted in Sirat (1986) 83 Cr App R 41 and Evans [1986] Crim L.R 470 and tentatively accepted in Najibi v R [2016] VSCA 177. Despite the close overlap between the concepts of incitement and procurement,[14] the authorities have recognised the distinction.[15] In this matter, Mr Stevens is not charged with the offence of inciting to incite an offence.
[14] Noted in Holliday (n4) [54], [59].
[15] R v Sirat (1986) 83 Cr App R 41, 45; Najibi v R [2016] VSCA 177, Holliday (n4) 446- 448.
The prosecution did not point to any authority that has adopted or considered the remarks in Bodin that liability might attach in circumstances where the incited offence was completed, other than two decisions which dealt with liability to incite in the context of statutory offences, Walsh v Sainsbury[16] and R v Holliday.[17] These cases considered liability for statutory offences of incitement, and whether liability attached to conduct that amounted to incitement to procure a substantive offence.[18] Both cases are of very limited assistance as liability turned on matters of statutory construction.
[16] Walsh v Sainsbury (n4).
[17] Holliday (n4).
[18] Walsh v Sainsbury (n4), Holliday (n4).
In R v Holliday, Mr Holliday had been convicted of inciting Mr Powell to kidnap two witnesses. The prosecution alleged Mr Holliday urged Mr Powell to procure a third person to kidnap each witness. The High Court considered whether incitement to procure a substantive offence was an offence under the Criminal Code 2002 (ACT). The Court concluded that as the statutory provision in the Criminal Code extending criminal responsibility to procurement had no operation until the completion of the substantive offence, inciting the procurement of a substantive offence was not an offence under the Criminal Code.
Chief Justice Kiefel, and Justices Bell and Gordon referred to some of the observations by the England and Wales Law Commission referred to above, that the incitement of another to make himself an accessory to the commission of an offence by a third party, is not an offence known to law.
The Court went on to state:[19]
In circumstances where, at best, it was uncertain whether there was a common law offence of incitement to procure and, at worst, there was no such offence (referring to R v Bodin [1979] Crim LR 176), one might reasonably expect that, if the drafters had intended that the Criminal Code (Cth) include an offence of incitement to procure, they would have expressly provided for one, as suggested by the Gibbs Committee.
[19] Holliday (n4) [52].
As a matter of logic, there is no obvious reason why a defendant should be held liable for inciting a person to commit an offence but not for inciting a person to procure a third person to commit the same offence.
The England and Wales Law Commission in its report on Inchoate Liability for Assisting and Encouraging Crime stated that in logic and in principle there is no impediment to an endless chain and almost infinite inchoate liability.[20] The argument against it is, in essence, that the conduct of the defendant is too remote from the conduct which attaches liability, which represents an unlimited and unwarranted extension of the criminal law.[21]
[20] English Law Commission (n10) 100-101.
[21] Ibid 101 [7.5].
The Gibbs Committee, in recommending it should be made that clear that it is an offence to incite a person to assist, encourage or procure another person to commit an offence, did not consider that the fact the incited conduct is not an offence until the incited conduct is undertaken, was a sufficient reason to refrain from making such incitement an offence. It nonetheless recognised concerns about remoteness, by cautioning that prosecutorial discretion would need to be carefully exercised. The Committee said it would probably be rarely appropriate to charge A with inciting B to be knowingly involved in the commission of an offence by C, when B's role could only be described as encouraging C. The Committee considered that if B's role was to assist C actively, a charge could be appropriate.[22]
[22] Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal Responsibility and Other Matters (July 1990) 240-241, [18.38] - [18.40].

If it is possible to incite secondary liability, the inciter is removed three times from any conduct: the principal committing the offence (in the circumstances of this matter, a person not identified), the procurer assisting them (on the prosecution case, Mr Martino), and the alleged inciter (Mr Stevens). However, there are examples in the criminal law where that degree of remoteness is no obstacle to liability; the offence of inciting to incite an offence being one of them.
There is an obvious tension in the concept of holding a person responsible for inciting an accessory only when the incite acts, when the offence of incitement is complete once the urging is done.[23] It is difficult to reconcile the reasoning advanced by the prosecution with the accepted elements of the offence.
[23] R v Assistant Recorder of Kingston Upon Hull; Ex Parte Morgan (n3) 62.
That difficulty also arises in the ruling in Bodin. If it is irrelevant that the person incited commits the offence, why is it relevant as to whether the person incited acts as an accessory? Ultimately, if the inciter intends that the offence be carried out it, the inciter’s intention and arguably their moral culpability is indistinguishable from the inciter who incites a substantive offence.
Whilst it may be arguable that Bodin was wrongly decided, neither party made this submission. In R v Holliday, Chief Justice Kiefel, and Justices Bell and Gordon cited Bodin for the proposition that there may be no common law offence of incitement to procure an offence. No subsequent authority appears to have found to the contrary.
There is also no authority to support the suggestion that liability for incitement to procure an offence attaches where the incited offence is attempted and not completed. Bodin stands to the contrary. Bodin held that if A incites B to procure C to commit an offence, and C commits the offence, it may be an offence for A to incite B as an accessory before the fact. There is a crime that B is a party to. Following that reasoning, if C attempts the offence, B is not liable as an accessory. It cannot be said that A incited B as an accessory before the fact.
In circumstances where the prosecution accepts that the ruling in Bodin was correct, the absence of authority that supports the prosecution’s submissions means I am unable to conclude it is an offence to incite a person to procure a crime that is not completed. As there was no substantive offence of arson, it follows that if I find Mr Stevens incited Mr Martino to commit the offence of arson of a motor vehicle, but that it is possible that he intended to incite Mr Martino to procure another person to commit the offence, I must find him not guilty.
Background
The evidence relied upon by the prosecution was agreed, by the tender of statements, agreed facts and the tendering of the audio recordings of the intercepted phone calls. I find that evidence proves the following matters beyond reasonable doubt.
The recording of the seven telephone calls in exhibit P3 were lawfully intercepted on a service used by Mr Stevens. Telephone calls were intercepted between Mr Stevens and Mr Martino. There were two calls between the two men on 2 September 2020.
On 5 September 2020 at about 5:19am, an attempted arson of a motor vehicle occurred at an address in Happy Valley. Two Molotov cocktails were thrown in the vicinity of a vehicle in the driveway. The resident of the house heard a loud explosion and saw what looked like small flames in the driveway, close to the vehicle parked in the driveway. The resident extinguished the flames. The remnants of one Molotov cocktail were found in pieces on the driveway next to the vehicle. The other landed on stone steps leading from the driveway up to the house. Each broken bottle had a rag in the neck of the bottle.
There was a telephone phone call between Mr Martino and Mr Stevens at 10.09pm that day and a further four phone calls. The exhibit P3 contains the entirety of the phone calls made on 2 September 2020 and 5 September 2020. The remaining phone calls were edited to remove irrelevant material.
The conversations between Mr Stevens and Mr Martino indicate the men are friends or close associates who trust and support each other. The precise nature of the relationship is not apparent.
The two rags found in the broken bottles were collected by police and delivered to Forensic Science South Australia on 7 September 2020 and subsequently examined for ignitable liquid residues. Petrol was detected on both items.
The telephone calls
I have had regard to the entirety of the intercepted calls. There are two conversations where it is alleged Mr Stevens incited Mr Martino to commit the offence of arson of a motor vehicle. I set out the content of those conversations that I have found proven below. Where I am uncertain about the words spoken, I indicate this with the word 'indecipherable' in brackets. When Mr Stevens uses a tone and pace of speech that gives the impression that he is reading from something, the words that I have inferred he is reading appear in italics. In the summary I have included some inferences that I have drawn from what the two men say, and deal with the inferences that the prosecution invites the Court to make in relation to Mr Stevens' intention relating to incitement separately.
Exhibit P3 – Intercepted phone calls
2 September 2020 - first call at 11.25am
The first conversation on 2 September 2020 starts at 11.25am.
Mr Martino tells Mr Stevens that he was robbed of half an ounce of coke. Mr Martino said that “he wanted it on tick” and that “he” reported that he got locked up but was unable to produce bail papers or other evidence that the loss of the coke related to a seizure by police.
It is clear from the two phone calls on 2 September 2020, that Mr Martino suspects that the person who claims to have lost the coke (the debtor), is a friend of a person called Amigo, who is a friend or an associate of Mr Stevens.
Mr Martino: “Tell him if he doesn't sort it out bro I will fucken burn the house down because I know where the cunt lives so I will send someone to go and burn the house down bro." Mr Martino laughs.
Mr Stevens says he will message him, which appears to be a reference to Amigo. A person with the name Andreas is then discussed. Mr Stevens says, "Yeah Andreas he's a fucken little thing he owes me too.”
Mr Martino: "That's the one bro. Yeah that the one bro, yeah I got his address and that bro."
Mr Martino says if he does not pay up, "I will just go and burn his fucken parents’ house down."
Mr Stevens: "Yeah you are probably better off, you are probably better off doing that bro because you are not going to get anything off Andreas."
Mr Martino refers to taking the person's ute and complains about doing the right thing and then getting robbed.
Mr Stevens says that he will message Ali and Amigo and tell them to sort it out now. Mr Martino thanks Mr Stevens.
From this conversation, it appears that while Mr Stevens considered it was unlikely that Mr Martino was going to get paid, he thought there was some prospect of Mr Martino recovering the debt, as he offered to contact others to tell them to sort it out.
In the next call, it becomes apparent that Mr Martino no longer suspects that Andreas is responsible for the theft.
2 September 2020 – second call 2:41.2 pm
At the beginning of this call Mr Stevens tells Mr Martino that Andreas does not work for Amigo anymore. Mr Martino says it was not Andreas, and names “Zahari”, and says he will send a picture of him. Mr Martino suggests that Amigo knows about it, by saying, “I am pretty sure fucken he knows about it bro, Amigo about this thing". Mr Stevens replied, "Well send me the photo and I'll fucken, well bro you know what? (pause), burn the fucker to the ground bro".
Mr Stevens: “Just burn it to the ground.”
Mr Martino: “I’ve got to pay bro, I’ve got to fucken pay them bro so I’ve got to fucken you know.”
There is then a discussion about the likelihood of Mr Martino being paid.
Mr Stevens: “None of them are going to pay ya so you are better off just doing that and then you'll show em.”
Mr Martino then says in effect, that he was letting Mr Stevens know about his intentions so he could pass on to Amigo, that he intended to "smash" the person (being the debtor) who he has heard is driving for Amigo.
Mr Stevens says that he will stick up for Mr Martino and asks him to send the photo. Mr Martino said he will send it to him and says that he is going to get his money from “Aliaz” somehow, but he is going to chase it up for him, as he is broke, and the debtor pretty much robbed him.
The next part of the conversation is set out in full:
Mr Stevens: "That's what I mean bro so what you got to do is, you gotta fucken, burn it, burn it to the ground bro fuck em bro you know what, they need to make examples you can't rip cunts off."
Mr Martino: "Yeah bro fuck man". This is said with emphasis on the words "fuck man."
Mr Stevens: "(indecipherable) you know that's what I mean these cunts they all carry on like oh no one's gonna do shit. I said 'bro, he's gonna burn like your mum's house down' and they reckon nah he won't."
Mr Martino: "Who said that? That I'm not going to do shit, Amigo?"
Mr Stevens: "Both of them."
Mr Martino, "Oh yeah, wait til I fucken do it then mate (laughs)."
Mr Stevens: "(indecipherable). Hang on a minute they reckon - (what's on here)" (sotto voce).
Mr Martino asks if Mr Stevens is talking to them now and Mr Stevens says yes. The two men then discuss the sending of the photo while they are on the phone.
Mr Stevens: “Send me a photo and then I will send it to him.”
Mr Martino: "Jazre Polheim. I will send you the photo bro."
Mr Stevens again tells Mr Martino to send him the photo and that he will send it straight away. Mr Stevens then says, "I will go, “nah, this cunt here”, I thought it was Andreas bro?"
Mr Martino says it was not Andreas, but he had thought it was his last name, but it is not. He asks Mr Stevens if he is on WhatsApp now and on being told that he can be, he tells Mr Stevens that he has just sent 'it' to him. I infer that he is referring to a photo. The conversation that follows is set out in full.
Mr Stevens: "Alright - that's Amigo what the fuck is wrong with these cunts cuz?"
Mr Martino: "Yeah what so what he said oh nah he won't do it, what do you mean I won't fucken do it mate, I will fucken do it."
Mr Stevens: (indecipherable).
Mr Martino: "Now that they say I won't do it, I want to do it even more bro."
Mr Stevens: "Well people will think you won't do it bro.”
Mr Martino: "Pardon?"
Mr Stevens: “Well not you, but people think that no one is going to do shit."
Mr Martino: "Yeah we'll see bro, ah I'm off, I'm fucken on home D bro I am out and about bro and I will fucken burn it bro, (laughs), I will go out on a pass out at night time and do it."
Mr Martino then asks if Mr Stevens knows Jassim who used to drive for Amigo. Mr Stevens tells Mr Martino that everyone wants to know who he is, and that "Amigo and that won't pay" if they know it is Mr Martino seeking the money. Mr Martino says he does not care if they are bikies or not and asks whether it is because he is not a bikie, that they think they don't have to pay. Mr Stevens says it is not Amigo's debt.
The next part of the conversation is set out in full.
Mr Martino: "I am not saying it's Amigo's, I am not saying it's Amigo's debt at all but I am just saying can he, if it's his mate, can he tell his mate to do the right thing”.
Mr Stevens: "Yeah."
Mr Martino: "Or his mate is going to get smashed bro, I'll fucken burn his mum's house down. I will send him that, I will send you, I got the, (address) Flagstaff Hill bro whatever it is."
Mr Stevens: "Mmm or maybe we might have to get someone to go there and burn one of their cars just to make a point."
Mr Martino: “Yeah I will bro” and Mr Stevens says, "You know, but make sure" and places emphasis on the word 'sure'.
Mr Martino: "Yeah I'll do it bro.”
Mr Stephens: (indecipherable) “and then I’ll”
Mr Martino: "Yeah I just got to fucken yeah I'll organise something bro and I'll do it."
Mr Stevens: "Then I will tell him, I will say well look bro, next is the fucken house bro if you don't hurry up."
Mr Martino: "Yeah, fucken oath bro."
Mr Stevens: (indecipherable).
Mr Martino: "Oh then I'll wait for the cunt to leave home bro, leave like a fuckin baseball bat in bro, at the front of his house."
Mr Stevens: "That's the thing but."
Mr Martino: "I'll go there early in the morning bro as soon as he goes, because he's a plumber bro so as soon as he leaves for work in the morning."
Mr Martino then complains about the debtor having just taken 'it', which I infer to be the drugs. He mentions the explanation that the debtor was "done by the cops", and the debtor's failure to provide his bail papers or other proof of this occurring and other matters. The two men then talk about other irrelevant matters.
Mr Stevens then says, "So I sent that photo, and he goes, 'ha ha that makes sense… that brown rat solo cunt', yeah". Mr Martino asks what he said. Mr Steven says "(indecipherable), he says, 'he is not my worker', so he is not Amigo's worker." Mr Stevens goes on to say, ‘That cunt, that guy is ripping ya', that's the cunt who tried ripping Amigo too."
Mr Martino says, "Yeah because he panicked because he tried getting me bro… to fucken rob Amigo". Mr Martino keeps talking at the same time that it sounds as though Mr Stevens is playing an audio voice message. Mr Stevens then says, "Listen! Shut up you black cunt listen…listen."
A third male voice can then be heard, saying the same words that could be faintly heard while Mr Martino was previously speaking. The sound is consistent with it being an audio message being played. The third male says: "No one knows Andreas bro, so these cunts ripped someone and said we will work for Amigo and try and bring Amigo heat bro. Wowww."
Mr Martino asked what he had said, and Mr Stevens says that "these cunts" have ripped someone and they are trying to bring Amigo heat, he does not work for Amigo and had tried to rip him off.
The next part of the conversation is set out in full.
Mr Stevens: "Oh so it's right - (silence), hang on, (silence) alright, yeah, so fair game. Go and do what you need to do cuzzy, filthy little bitch."
Mr Martino: "Done bro, done brother."
Mr Stevens: "I want to see, I want to see some shit on fire mother fuckers." (with emphasis on the words 'fire' and 'mother fuckers').
As the phrase 'mother fuckers' is said, a sound consistent with an engine being briefly revved can be heard.
Mr Martino: "Oh for sure mate, don’t you worry my friend."
Mr Stevens: "Don't be (indecipherable) like Robbie."
Mr Martino: "Hey fuck Robbie bro."
Mr Stevens: "I know commos." He is then asked by Mr Martino if he has heard from them and he says no.
Mr Stevens: "I know you commos just like to send messages about shit and don't do nothing."
Mr Martino, "Oh yeah mate I am none of them mate. I am not one to let."
Mr Stevens says he has to go and the conversation ends shortly thereafter.
Inferences drawn from the phone calls
Was Mr Stevens urging Mr Martino to do something?
During the second conversation on 2 September, a pinging sound can be heard frequently that is consistent with the sound of a phone notification. I find that Mr Stevens made enquiries after receiving a photo of a person from Mr Martino and was told that the person Mr Martino is interested in, is not someone who works for Amigo. When Mr Stevens says, "alright so yeah fair game", he was conveying to Mr Martino that the person can be targeted, as there is no relevant relationship between that person and Amigo.
I find that when Mr Stevens states at the end of the conversation, "Don't be… like Robbie" and "you comms just like to send messages about shit and don't do nothing", he is saying to Mr Martino, "don't be all talk and no action." That is the only reasonable inference to be drawn given his earlier statement, "do what you need to do cuzzy, filthy little bitch," which is consistent with him urging Mr Martino to stop complaining and to do something. These statements are made immediately after Mr Martino says, "Oh for sure mate don't you worry my friend" after he is told by Mr Stevens that he wants to see something on fire.
It was submitted by Mr Stevens' counsel that when Mr Stevens said "I want to see some shit on fire mother fuckers" he could be speaking to the world at large, rather than Mr Martino. I reject that possibility. Mr Stevens had just told Mr Martino to do what needs to be done, and immediately afterwards urges Mr Martino in effect, to not be "all talk and no action." The reference to “mother fuckers” was a manner of speech. His request that he wanted to see something on fire was plainly intended to prompt Mr Martino.
I am satisfied beyond reasonable doubt that Mr Stevens was urging and encouraging to Mr Martino to take action and was intending to urge him to take action.
Was Mr Stevens inciting the offence of arson of a motor vehicle?
I find that Mr Stevens was urging that a vehicle be burned. When Mr Stevens' statement, "I want to see some shit on fire" is considered in the context of what he said earlier in the same conversation, it is clear he is referring to a vehicle. Mr Stevens is not referring to Mr Martino's idea of stealing a Ute or leaving a baseball bat at the house. He is not referring to Mr Martino's original plan to burn a house.
The idea of burning a house or threatening to burn a house changed once it became apparent that some unnamed persons did not believe that Mr Martino would carry out the threat.
The goal was to recover a debt. Mr Martino's original idea was to use the threat of burning the house down as leverage to be paid. Mr Stevens suggested that he just burn it anyway. Mr Martino did not immediately agree with that idea, referring to the need for payment and again asking Mr Stevens to contact Amigo, in an effort for Amigo to persuade the debtor to pay.
Mr Stevens' suggestion that they arrange someone to burn a car, and then threaten that the house would be next, came after Mr Stevens relays to Mr Martino that no one believed that the threat would be carried out.
When Mr Martino agreed with the suggestion that a car be set on fire, Mr Stevens emphasised that Mr Martino should "make sure." In the circumstances, when Mr Stevens said he wanted to see some "shit on fire", he was not suggesting that anything be set on fire; he was saying he wanted to see a vehicle on fire.
The idea of burning a car was expressed by Mr Stevens initially as a possibility and potentially to be done by others. That possibility then crystallised into a plan when Mr Martino agreed with the suggestion. Mr Stevens was saying that a better plan was to burn a car first, to remove doubt that Mr Martino was serious, and that once that occurred, Mr Stevens would tell “him”, the debtor, that "next is the house" if he did not hurry up and pay the debt. This brought Mr Stevens' initial suggestion firmly into a two-part plan. Mr Martino indicated that he agreed with this plan. I find the evidence proves beyond reasonable doubt that Mr Stevens was urging that a vehicle be set on fire.
Was Mr Stevens inciting Mr Martino to commit the offence, intending that Mr Martino carry out the offence?
The evidence provides a basis to infer that when Mr Stevens said, "do what you need to do" and "I want to see some shit on fire", he was urging Mr Martino to act personally and intending that he act personally. Mr Martino repeatedly said, "I will do it" and responded to the taunt that no one believed anyone would do anything, by stating he would burn the house by going out on a home detention pass out. After the idea of burning a car is raised, Mr Martino talks about personally going to the house early in the morning to leave a baseball bat at the front of the house. The statements by Mr Martino that he would personally attend the house, and the literal meaning of "I will", provide a strong basis to infer that when Mr Martino said, "Yeah I'll do it bro" and "Yeah I just got to fucken yeah I'll organise something bro and I'll do it", he meant that he would personally carry out of the offence.

The literal meaning of Mr Martino's words, and Mr Martino's previous references to attending the house personally, provide a basis for Mr Stevens to believe that Mr Martino would carry out the offence personally, and to infer that when he urged Mr Martino to “do what you need to do, he intended to urge Mr Martino to personally act on his suggestion. That intention is consistent with Mr Stevens telling Mr Martino, “to make sure” the car was burned.
The following matters throw doubt on that inference.
In the first call, Mr Martino says that “he” will burn the house down, because he knows where the debtor lives and so he will send someone to go and burn the house down. When Mr Martino says that he would burn the house, it is clear he was not meaning that he would do so personally but that he would take credit for it.
Mr Stevens did not suggest that Mr Martino should personally set a car on fire. When he raised the idea of burning a car, it was a suggestion that the two men arrange for someone to do it. It is plausible, given Mr Martino's use of the phrase "I will", that when he said, "I'll do it", he was not saying that he would do it personally, but he was agreeing with Mr Stevens' idea that someone be engaged to carry it out. After being told to make sure he says, "Yeah I will do it bro." Mr Martino's response at that time is equally consistent with him agreeing with the idea to arrange someone to burn the car as it is agreeing to carrying it out personally.
Although the exact meaning is unclear, it is relevant that when discussing that others did not believe that the threat was going to be carried out, Mr Stevens initially said that people did not think that Mr Martino would do it, and then clarified, "Well not you, but people think that no one is going to do shit." Mr Stevens' clarification that he was not referring to Mr Martino personally, is consistent with the possibility that both men understood that they were discussing an arson to be carried out by a third person or persons.
It appears that Mr Martino and Mr Stevens trust each other, and that Mr Stevens supported Mr Martino in his endeavour to recoup his debt. Mr Stevens was also aware or at least believed that Mr Martino was on home detention and that to be absent from his address required a pass out. It would be surprising in those circumstances if Mr Stevens was intending to encourage Mr Martino to personally carry out the arson, in circumstances where his location could be detected or interference with his electronic monitoring bracelet would bring other problems for Mr Martino.
Given that the two men knew each other, and the risks to Mr Martino in acting personally, it is plausible that Mr Stevens did not intend that Mr Martino act personally on his suggestion but was inciting him to carry out arson of a motor vehicle by engaging a third person. Mr Stevens responses in the phone calls after the attempted arson are also consistent with that possibility.
Telephone calls after the attempted arson
The telephone call on 5 September 2020 commences at 10.09pm. Mr Stevens calls Mr Martino after being told by Mr Martino to ring him on that number. Mr Martino says that Mr Stevens’ mates have given him up. Mr Martino asks if Mr Stevens remembers that he said he was going to do something and says, "Yeah well fucken I do it last night mate." Mr Stevens says, "Really?" with an expression of surprise. Mr Martino went on to explain the police had taken his phone and told him that they had got the wrong house. Mr Stevens says "oi, oi, oi (this is said quickly), I will come and see ya, don't ring my phone I will come and see you." They arrange to meet at Mr Martino's house.
In a telephone call on 10 September 2020 at 2.41pm Mr Martino tells Mr Stevens that he has been charged with throwing a Molotov cocktail "when I'm fucken at home bro." They arrange to meet.
In a telephone call on 14 September 2020 at 4.53pm Mr Martino tells Mr Stevens that his Asian mate also got locked up for the petrol bombing. Mr Martino speculates about who has nominated him as being responsible. Mr Stevens says he never said it was him. The men discuss who it may have been.
Mr Martino says that he remains on home detention, but his work passes have been cancelled. Mr Stevens says that he would be saying to the Judge, "how did I firebomb it when I was home, on home d?" Mr Stevens sounds incredulous. Mr Martino says the truth will come out about who had said something. Mr Martino says that they (police), have messages on his phone, including one saying “hey bro bow down, all done” or something like that and that he wrote back, "hey bro I'm sleeping and then I wrote back ‘oh how did you go there last night bro?’" Mr Martino says he has been charged with criminal trespass and causing an act to cause harm and asks rhetorically how this can be, when he is stuck at home. Mr Martino states his home detention “thing” showed that he was home the whole time. Mr Martino jokes about throwing fire from Paralowie to Happy Valley with good aim. The two men joke about causing a fire using a drone.
In a telephone call on 17 September 2020 at 3.06pm Mr Martino complains about his “Asian mate” and re-counts a conversation with him where his mate speculated about who has reported them to police.
In a second telephone call on the same date, at 3.22pm, Mr Martino appears to refer to the evidence against him and refers to a message that he sent saying "hey bro how did youse (sic) go last night" and evidence that he was sent the address that was petrol bombed. Mr Martino says that the guy is a plumber who wanted a tiling job quote and that he had asked him for quotes before, and that is why he had his address. Mr Martino says they can't prove it.
In summary, in the telephone calls occurring after the attempted arson, although Mr Martino initially states to the effect, “I did it", when referring to the attempted arson, he goes on to say he did not personally attend the location of the attempted arson and that his home detention monitoring showed him being at home. Mr Stevens does not contribute much to these conversations but expresses sympathy for Mr Martino and sounds incredulous that he has been charged.
I find that when Mr Martino said, "I do it", meaning "I did it", he did not mean that he did it personally; he meant that he was responsible for arranging it. It is possible that Mr Stevens, being familiar with Mr Martino, understood that when Mr Martino said, “I’ll do it,” or used similar phrases, he was not using the pronoun “I” literally. Mr Stevens' statements in these subsequent calls, and his tone of incredulity in relation to the allegation that Mr Martino attended the house, are consistent with the possibility that he had believed that Mr Martino intended to engage someone else to carry out the arson and that this is what he was encouraging Mr Martino to do when he urged him to set a vehicle on fire.
The possibility that Mr Stevens was encouraging Mr Martino to engage a third party to commit the offence of arson of a motor vehicle is not excluded. I find Mr Stevens not guilty.