R v. Temple

[2007] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v Temple [2007] QCA 67

PARTIES:

R
v
TEMPLE, Alan James
(appellant)

FILE NO/S:

CA No 318 of 2006
DC No 2852 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2007

JUDGES:

Williams, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, Williams and Holmes JJA concurring as to the order made, Jerrard JA dissenting

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – the appellant was charged with six counts of arson – the fires appeared to be related – the case against the accused was circumstantial – a jury convicted the appellant on count six but acquitted on counts one to five – whether the verdict of guilty on count six was unreasonable given the acquittals on counts one to five – whether the finding of the jury should be interfered with

MacKenzie v The Queen (1996) 190 CLR 348, cited

COUNSEL:

A J MacSporran SC for the appellant
M J Copley for the respondent

SOLICITORS:

Patrick Murphy Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: The appellant was tried in the District Court at Brisbane on six counts of arson of vegetation on North Stradbroke Island.  The jury acquitted him on counts one to five inclusive, but found him guilty of count six.  He appeals against that conviction on the ground that the verdict of the jury with respect to count six was inconsistent with the verdicts of not guilty returned in relation to counts one to five inclusive.

1. The oral argument presented to this Court was not that the verdict on count six could not stand given the test for inconsistent verdicts derived from MacKenzie v The Queen (1996) 190 CLR 348 at 367, but rather that a guilty verdict on count 6 was unreasonable given the acquittals on counts one to five. That argument depended to a significant extent upon the contention that the prosecution case at trial was that one person lit all of the fires.

1. A number of witnesses (including fire fighters, police officers and a bus driver) gave evidence of six separate fires burning in vegetation within a distance of slightly less than one kilometre adjacent to East Coast Road at about 7.30 pm on 28 July 2004.  Count one related to what was called the first fire where the largest area of vegetation was burnt, and count six was referred to as the last, where the least area of vegetation was burnt.  The first fire burnt out an area measuring approximately 40 metres by 20 metres, the second burnt out an area approximately measuring 12 metres by eight metres, the area of the third fire was not measured, the fourth fire burnt out an area measuring approximately 20 metres by four metres, and the fifth fire burnt out area measuring approximately three metres by two metres.  The sixth fire only burnt an area 24 centimetres by 29 centimetres.  The size of each burnt area was relied on to establish the sequence in which the fires had been lit.  Photographs of each of the burnt areas were tendered.

1. In the circumstances it was not contested at trial that the fires were deliberately lit.  The question for the jury was whether the prosecution proved beyond reasonable doubt that it was the appellant who lit some or all of the fires.

1. McCredie, a bus driver, gave evidence for the prosecution.  At about 7.00 pm he picked up five passengers from the water taxi at Dunwich and drove towards Point Lookout, dropping off passengers on the way.  He noticed no fires as he drove along East Coast Road.  Relevantly he then stopped on his way back to Dunwich at the intersection of East Coast Road and Tramican Street to "finalise the reading of my log".   That was at 7.20 pm.  He paused as he set off from that point to allow a fire vehicle, which had its lights and sirens on, to pass.  He then followed that fire vehicle down East Coast Road towards Dunwich.  He said that he then "counted four fires".  The fire vehicle stopped at the first and he proceeded on.  Relevantly one of his answers was as follows:

". . . the fire vehicle, it passed me, was pulled up at the first one, there were more fire vehicles behind me, and what I counted to be about the fourth fire, there was a van pulled up at the fourth fire."

He described that vehicle as a goldy-coloured delivery van; its rear doors were closed.  The last fire he saw he described as "a small fire, maybe a metre or two in diameter".  

1. He was cross-examined about the number of fires that he saw, and it was suggested to him that he may have missed one or two small fires.  His response was: "It's possible.  That's how I counted them on the night."

1. It is not clear from a consideration of all the evidence whether or not the fire described by McCredie as the fourth fire, was in fact the sixth fire.  If McCredie's description of the size of the fire, a metre or two in diameter, was correct, then it was more likely to be the fifth fire (three metres by two metres when extinguished), rather than the sixth fire which only burnt an area of 24 centimetres by 29 centimetres.  That was a matter for the jury to consider. 

1. But importantly, if the fire described by McCredie was the sixth fire, it is highly unlikely that someone else could have lit it and left the scene before the appellant and then McCredie, and then Cornish and Smith arrived, given that the fire consumed only a very small area.   That was a question for the jury to consider.

1. Evidence was given by Cornish, a police officer and captain in the local fire auxiliary, and Smith, a member of the fire auxiliary.  About 6.00 pm that evening they inspected an area which had been the subject of a controlled burn earlier that day.  While returning to Dunwich along East Coast Road they noticed the fire, the subject of count one, and further fires in the distance along the road.  They directed other fire fighters nearby to contain the first fire, and then continued driving along East Coast Road.  They then noticed a small fire (the subject of count six) some metres from the road and the appellant standing between the fire and his van.  The vehicle being driven by Cornish approached with its lights on high beam which were shining on the appellant.  The evidence was that the appellant was seen to look in the direction of the vehicle, and then approach the fire and appear to be trying to stamp it out.  The evidence of Cornish was that at that time the rear door of the van was up.  Cornish went to the fire and assisted the appellant to stamp it out; he observed that the appellant was wearing thongs.  The evidence was that it was about 7.30 pm when the appellant was observed at the scene of the sixth fire.

1. Cornish gave evidence that the appellant was agitated and hostile when he spoke to him at the scene.  His evidence was that the appellant stated he suffered post traumatic stress as a result of a bus accident he attended as a fire fighter some years previously, and was taking anti-depressants as a result of depression.  Cornish could smell intoxicating liquor on his breath.  Without giving particulars Cornish said that the appellant made a number of derogatory remarks in relation to the fire service.

1. Henderson, another of the fire fighters, gave evidence that when she came to the area of the sixth fire the appellant "was very aggressive and was swearing quite a lot towards us".  Her evidence was that the appellant said he was taking pills for the problems he had which were caused by the fire service. 

1. There was evidence that the appellant had the means to light fires.  He had a number of lighters, either on his person or in his vehicle.  There was also a gas bottle and associated equipment used in connection with his employment in the motor vehicle.

1. Detective Senior Constable Dugger located a tissue with heart-shaped patterns on it near the sixth fire.  He also located a tissue, similarly patterned, between the two front seats of the appellant's van.

1. The witness Henderson also gave evidence that when she saw the appellant's van near the sixth fire she recognised it as a van she had seen earlier that evening (about 7.00 pm) on East Coast Road somewhat near the intersection of Tramican Street.  (McCredie did not see a van on his run out.)  She said that at the time the occupant of the van was rummaging in the cabin and appeared as though he was about to get out.  The area where the van was stopped was close to the scene of the first fire. 

1. Henderson's companion, Taylor, also a fire fighter for a number of years, gave evidence that he had known the appellant for 30 years and he was unable to recognise the person in the stationary van as the appellant.  Further, his evidence was that the van noticed at that time was dark coloured and was not the van observed subsequently near the scene of the sixth fire. 

1. Finally, the defence evidence must be noted.  The appellant gave evidence and called evidence from the witness Holmes who managed the Masonic Club on Stradbroke Island where he had been drinking.  The appellant's evidence was that he suffered post traumatic stress disorder from his service as a fire fighter for 16 years until November 2002.  On the day in question he had gone to the Masonic Club where he drank and gambled for a number of hours before leaving after 7.20 pm to return home.  As he drove towards Amity along East Coast Road he noticed a number of fires and thought they were connected with the controlled burn-off.  His evidence was that he became concerned there were no fire fighters in attendance and at the last and smallest fire he stopped to see what he could do to extinguish it on his own.  Because the ground was uneven and because of his concern they may be glass or other obstacles, he was deciding how best to extinguish the fire when Cornish and Smith approached in their vehicle.   He then attempted to extinguish the fire by stamping it out with his thonged feet.  He conceded he became somewhat aggressive when Cornish spoke to him because he believed that Cornish thought he was responsible for the fires.

1. The jury may well have considered, given the size of that fire, that it could not have been lit by someone else who had left the scene before the appellant arrived.  The appellant was obviously on the scene for a minute or two before he attempted to extinguish it.

1. Holmes gave evidence that she was reasonably certain the appellant left the club at about 7.30 pm.  Probably her most significant answer was that it was "very close to" 7.30 pm when the appellant left.

1. The prosecution case was that the appellant was directly linked to the sixth fire and that there was a circumstantial case that he had lit the other five fires.  But the jury had to consider each count separately as they were directed in the summing up.

1. The appellant has not attacked the summing up.  The learned trial judge gave full and appropriate directions on the circumstantial case relied on by the prosecution, and directed the jury that they had to consider each of the six counts separately.  He also gave what the appellant concedes to be the appropriate warning in relation to identification evidence; that was particularly relevant in relation to the evidence of Henderson putting the appellant's van near the site of the first fire.

1. In the summing up the trial judge did direct the jury that it would be difficult to convict the appellant on the prosecution evidence unless they accepted the identification evidence of Henderson and said it would be dangerous to accept her evidence of identification.  That appears to have been a remark relating to the possibility of convicting on all counts.

1. Particularly given the conflicting evidence given by Henderson and Taylor the jury may well have not been satisfied that the prosecution had proved beyond reasonable doubt that the appellant's van was seen adjacent to where the first fire was lit.  Also, if the evidence of Holmes was accepted that the appellant left the club close to 7.30 pm, a jury may have had a doubt as to whether he had time to light all the fires.  If follows the jury could have had a doubt about the identification evidence with respect to the van being at the site of the first fire, and as to the time available to the appellant to light all the fires, and in consequence have had some doubts about fires one to five, but nevertheless have been satisfied beyond reasonable doubt from evidence in relation to the sixth fire that the appellant lit it.  There was his presence at the scene of the sixth fire, the presence of the tissue near that fire matching one in his vehicle, and they could have concluded that the appellant was watching the fire he had set until the approach of Cornish.  They could have concluded that it was only then that he attempted to put the fire out.

1. The finding of not guilty on counts one to five does not necessarily mean that the jury was satisfied that the appellant did not light those fires.  It may well be that they were not prepared to draw the inference beyond reasonable doubt that the appellant lit fires one to five from the fact that they were satisfied beyond reasonable doubt that he lit the sixth fire.

1. Further, there could have been an element of mercy in the jury's approach.  It may have been thought that it was over legalistic to charge the appellant with six counts of arson in the circumstances.  The jury may well have considered that returning a verdict of guilty on the one count where there was a direct link between the appellant and the fire was appropriate in the circumstances.

1. The finding of guilty on count six was clearly open to the jury, and in the circumstances the verdicts of not guilty on counts one to five do not make the guilty verdict on count six unreasonable.

1. It follows that the appeal should be dismissed.

1. JERRARD JA:  In this appeal I have had the advantage of reading the reasons for judgment of Williams JA and the order proposed by His Honour.  I adopt his description of the relevant facts.

1. I respectfully disagree as to the outcome of the appeal.  The acquittals on counts 1-5 narrow the circumstantial case on count 6, and neutralize the fact that there were no more fires lit after Mr Temple was seen.  The reduced circumstances establish in toto that Mr Temple was located at Point Lookout at the scene of a very recently lit fire, and (only) when he knew he was seen, he made an attempt to stamp it out.  A tissue he may have dropped was found at that scene.  He had the means to start a fire.  He was agitated, and spoke in an angry way about the Fire Service.  He said he had stopped his vehicle because he saw the fire, but had not used a torch in his car to examine the fire.  Those are the circumstances relied on by Mr Copley for the Director.  I do not think that upon the whole of the evidence described by Williams JA it was open to the jury to be satisfied beyond reasonable doubt that Mr Temple had started that fire.

1. Accordingly, I would allow the appeal, set aside the verdict of guilty on count 6, and direct a verdict of acquittal be entered.

1. HOLMES JA: I have had the advantage of reading the reasons for judgment of both Williams JA and Jerrard JA. 

1. This was a circumstantial case of arson, the most obvious circumstance being the appellant’s presence within feet of a recently lit fire. The jury, it seems, rejected the appellant’s evidence. Nonetheless, there were, speaking realistically, two hypotheses available: that he was at the scene to light the fire or that he was at the scene to put it out. The question is whether the jury could, on the evidence, dismiss the second as a rational possibility.

1. There was not a great deal about the evidence to defeat the possibility that the appellant had pulled up just before Smith and Cornish and was still considering how to extinguish the fire when they arrived. The fact that the appellant had the means to start the fire and had dropped a tissue could not take the Crown case very far. His angry reaction to the fire officers could readily be explained in terms of his unhappy experiences in the fire service and his reaction to their evident suspicion of him.

1. One piece of evidence might, however, have proved telling. The appellant drove a tradesman’s van, with a lifting rear or tail door.  McCredie said that when he passed the van, the driver was out of it, halfway between it and the fire. The van’s rear door was closed. When Smith and Cornish arrived, it was up. It could not be inferred that the back of the van was opened to enable the appellant to obtain accelerants, because Macredie’s evidence was that the fire was already alight when he passed it.  But it was not a red herring. It tended to discount a picture of the appellant arriving at the scene, getting out of his car to look at the fire and being illuminated by the headlights of Smith’s and Cornish’s vehicle more or less straight away.

1. If the jury accepted that evidence, it would have been justified in concluding that the appellant had been at the scene for more time than could be explained by an initial uncertainty as to what to do. It might also have considered that taking the time to return to the van and open it at the back, for no reason apparently connected with fire extinguishment, was not reconcilable with the hypothesis of someone pulling up in order to see to the fire. It was not a powerful case, but that piece of evidence, added to the other, more equivocal circumstances, would, in my view, have warranted the jury’s rejection of the second hypothesis as rational. 

1. The jury’s verdict was not unreasonable. I would dismiss the appeal.