R v Valentine

[2000] NSWCCA 169

CITATION:	R v VALENTINE [2000] NSWCCA 169
FILE NUMBER(S):	CCA 60366 of 1999
HEARING DATE(S):	31 January 2000
JUDGMENT DATE:	19 May 2000
PARTIES :	Regina Warick James VALENTINE
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Barr J at 32

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0623
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	Crown: LMP Lamprati Appellant: G Nicholson QC
SOLICITORS:	Crown SE O'Connor
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
No: 60366/99

BEAZLEY JA
HULME J
BARR J

Friday 19 May 2000


REGINA -v- Warwick James VALENTINE

JUDGMENT


1    BEAZLEY JA : I agree with Hulme J.

2    HULME J : On 4 June 1999, the Appellant was convicted by a jury of two counts alleging that on 28 December 1992 he maliciously damaged property by means of fire. On each count Judge Luland deferred sentence upon the Appellant entering into a recognisance in the sum of $1,000 to be of good behaviour for 3 years. The Appellant was also required to pay compensation in the sum of $49,358.

3    The grounds of Appeal are:-
(i) The verdict of the jury is unreasonable having regard to the evidence at the trial;
(ii) The verdict of the jury cannot be supported, having regard to the evidence;
(iii) His Honour erred in not directing a verdict of not guilty at the end of the Crown case; and
(iv) His Honour erred in failing to clearly direct the jury that it was their duty to acquit the Appellant if there was a rational inference reasonably open that another may have been responsible for lighting the fire.
Grounds 1-3


4    These grounds can conveniently be considered, as they were argued, together. The only issue of substance in the trial was whether the fires which undoubtedly occurred were lit by, or at the instigation of the Appellant. The evidence relied on by the Crown was circumstantial and may be summarised as follows.

5    The Appellant had been in a relationship with a Ms Harvey for about 3 years up to July 1992. Ms Harvey then broke it off, an event which caused some anger on the part of the Appellant. On 2 occasions, one in October and one in November 1992, the Appellant threatened “I’m going to get you.” At about this time Ms Harvey moved from Gymea where she had been living to a new address at 158 Willarong Rd, Caringbah. This was in a block of units, and Ms Harvey did not pass on her new address to the Appellant.

6    The fires the subject of the charges occurred in the early morning of 28 December 1992 in garages in a group of garages in the basement of the block of units. One fire was in garage numbered 3, occupied by a car belonging to Ms Harvey’s brother. The second fire occurred in 4 garages numbered 11-14. Garage numbered 12 contained a deal of furniture and household items belonging to Ms Harvey. There was some difference between two expert witnesses as to where that fire started. One witness nominated garage number 11 while the second said that the start was in garages 12 or 13, he could not be sure which. Both fires occurred at the same time and both were deliberately lit.

7    There was evidence from a friend of the Appellant to the effect that on 15 December 1992 when she was working for the NRMA as an insurance clerk, the Appellant asked her to look up on the NRMA computer the address of a V Harvey who had lived in Gymea.

8    The next event relied on by the Crown was the subject of evidence by a Mr Demajo, originally a family friend of the Appellant and the partner of a daughter of the Appellant, and who by the time of trial had become the Appellant’s son-in-law. According to Mr Demajo, on 26 December he was at the Appellant’s home in Kinsela St, Illawong, ate some oysters, became ill and went to sleep. At about 10pm the Appellant woke him and asked to be driven to procure some cigarettes. The two drove to a 7 Eleven store near the block of units where the fires occurred - a journey, according to Mr Demajo of some 40 minutes. When the Appellant and Mr Demajo arrived, there were some people yahooing outside the store. The Appellant said “Don’t worry about it.” and the two then drove off back to the Appellant’s home, forgoing the cigarettes. The vehicle used was one owned by Sally Cowan, a girl the Appellant was seeing at the time. It had been parked in the driveway of the Appellant’s home and the keys hanging on the key rack there. Other evidence showed that the registration number of the car was KMG-374.

9    Mr Demajo also gave the following evidence:-
Q On that drive from his premises to the 7 Eleven do you recall passing any open shops?
A Yep.
Q In particular shops that would generally sell cigarettes?
A Yep
Q Was there any reason why you didn’t stop at any of those shops?
A Oh well the - the shop that I pointed out, I was told they didn’t sell the cigarettes that he smoked so keep going.
Q Which shop was that, do you recall?
A It’s now BP. I’m not sure what it was before. It was at Food Plus, Gymea.
And later:-
A. Yeah well when we went back to Gymea, you can take it back to there, we drove past there and I said, Food Plus is open, do you want to get them there, and he said they won’t sell my cigarettes. Go to the 7 Eleven.”

10    Mr Hogan, an occupant of the block of units gave evidence to the effect that vehicle KMG-374 was in the vicinity of the block of units at about 12.30 am on 27 December 1992. He arrived at the block at that time and saw two males looking into garages within the car park of that block. The males looked towards Mr Hogan and then quickly walked off, one with something in his right hand which he was hiding. They went to the vehicle which was parked in Willarong Rd about 10 to 15 metres from the driveway to the units and drove off.

11    Mr Demajo also gave evidence of another visit to Willarong Rd on the morning of 27 December. To appreciate the significance of some of that evidence it is necessary to have some understanding of the relevant locality. The building in which the unit occupied by Ms Harvey was situate was number 158-160 Willarong Rd. The building was situate in a block bounded by Willarong Rd, Dianella St, Sunnyside Av and Banksia Rd. The street numbers of the properties in Willarong Rd, increased as on moved along that street from Dianella St to Banksia Rd. The include a property number 168-172 which some of the exhibits suggest was at the corner of Willarong Rd and Banksia Rd. More or less directly opposite it was the 7 Eleven store to which reference has been made.

12    This visit on what Mr Demajo said was the morning of the 27th occurred in the course of a drive he and Appellant were making from Illawong to a boat ramp at Yowie Bay. During the course of the journey the Appellant said that he needed to check or have Mr Demajo check on something and drove to Dianella St, Caringbah. There he said to Mr Demajo words to the effect “Just go up to the white block of units and tell me what you see.” Mr Demajo did so and observed what he described as black score (scorch?) marks on brickwork on top of the entrance to the garage of that block. On returning to the car he said to the Appellant “There’s been a fire there. What’s going on?” The Appellant said, “It’s nothing. Don’t worry about it. Let’s go.”

13    Mr Demajo was asked to identify the block of units he went to. Saying he “went from here up here”, he depicted on a plan Exhibit 16 a line from Dianella St around the corner into Willarong St and by a long rectangle about half way along Willarong Rd between Diqanella St and Banksia Rd the approximate position of the units. The witness also gave evidence that by the time he returned to the car, the Appellant had moved it into Willarong Rd and parked there. He marked on the exhibit where the car had been taken to. This was appreciably closer to Dianella St than the marked position of the block of units. Mr Demajo also said that the block of units was of white bricks and not overly tall.

14    A comparison of those markings with exhibits 6 and photographs of the buildings in Willarong Rd would lead to the conclusions that the property 158-160 was within the rectangle drawn by Mr Demajo but doubtful whether the property 168-172 was. Photographs in evidence show that the building at 168-172 Willarong Rd has 9 stories from ground level up but that all other buildings between the corner of Dianella St and the building at 168-172 are of 2 or 3 stories, apart from any below ground.

15    Photographs also show that there is a concrete beam and slab immediately above the garage entrance of the building at 158-160 Willarong Rd with brickwork above the slab. There was evidence from a Ms Creer, a witness called by the Appellant, that above the entrance to the car park of the building at 168-172 Willarong Rd there were bricks. Shown two photographs which became Exhibit 17 Mr Demajo said that he did not recognise the building. They were of the garage entrance to number 158-160 and seem to depict some blackening of brickwork above the slab above the garage entrance.

16    After Mr Demajo gave evidence, a police officer was recalled to say that there was no white block of units in Willarong Rd. A number of photographs in evidence, including photographs of the building number 168 to 172 confirm this view although 2 photographs of that building in Exhibit A are light enough to permit the description of the brickwork as “white”. The building at 158 Willarong Road is a sand colour - a light yellow/orange.

17    Evidence bearing on this event was also given in the Defence case. There was evidence from records of the NSW Fire Service that there were many fires in properties in Willarong Rd between January 1991 and October 1994. Some 14 of these were described as “building” fires. Three were in blocks containing as the block at 158 Willarong Road did, 7 to 20 units. One of these fires occurred on 22 December 1992 and another, presumably those with which the Appellant was charged on 28 December. Mrs Creer, who was the strata manager of the property 168 to 172 Willarong Rd between 1990 and 1994 said that at a time she could not remember, there had been a fire in a garage in that block which caused smoke damage to the exterior of the building - believed to have been caused by a delinquent teenager.

18    The Appellant himself gave evidence. His occupation was that of a commercial cleaner and he said that he had previously carried out fire cleaning in Willarong Road. He said that that he had been phoned on Boxing Day and asked if he could look at a job for an insurance clean-up and this was the inspiration of the visit on 27 January. He agreed he had dropped Mr Demajo off “near Willarong Road “at the back” and asked him to have a look around the building there. The Appellant said that he did not describe any building or buildings and he had dropped Mr Demajo off “to see if he could see a fire there”. The Appellant did not remember what Mr Demajo said on his return to the car which, by then, he had driven into Willarong Road. The Appellant said that he had not spoken again to anyone about a fire in Willarong Road in December 1992. The person who had phoned initially had said that he would ring back and never did so.

19    In cross-examination, the Appellant said that the person who rang had informed him that the block of units involved was “right next to Sunrise” and “It’s the whole front that was burnt. You’d recognise it easy”. “Sunrise Place” is the name of the building at 168-172 Willarong Road. The Appellant said that prior to 27 December, Mr Demajo had worked in the cleaning business but not so as to enable him to give quotes. However the Appellant also said that he charged by the hour. The reasons the Appellant gave for asking Mr Demajo to look at the building rather than himself doing so were that he had his grandson in the car and that he thought that, as he himself was driving, it was easier for Mr Demajo to just step out of the passenger side. Given that the Appellants’ grandson was Mr Demajo’s son, the jury might well not have found either of these explanations convincing. The Appellant denied that he had stayed in the car because he did not want to be seen in Willarong Rd looking around but he provided no real explanation why he had not parked in front of the units said to have suffered the fire.

20    On other topics, the Appellant denied involvement in the fires, denied he had threatened Ms Harvey and denied that he knew Ms Harvey’s address at the time. He agreed that he had sought to find out her address but he said that this was because she owed him money and he wished to serve a summons on her in that regard. So far as the evening of Boxing Day was concerned, the Appellant said that although Mr Demajo had been ill he had woken him with a view to obtaining cigarettes and going for a drive. Later he said that Mr Demajo had been moving around and did not look fully asleep. The Appellant agreed that at the time of doing so he still had some or a few cigarettes and Mr Demajo also smoked but wanted more.

21    The Appellant could not remember whether the store at Gymea had been open or what conversation there might have been about it during the drive but did say that he had previously purchased Camel filter cigarettes, the type he smoked at the time at that store. Earlier he had said that he could not remember why they did not stop at the Gymea store. When it was put to him that after driving off from the 7-Eleven store he still had a need for cigarettes, the Appellant said, “I didn’t think about it.” Asked whether he could have obtained them somewhere else on the way home, he said “There was nowhere else. There was only - I didn’t remember any more shops down there.”

22    The Appellant said that after leaving the 7 Eleven store he and Mr Demajo returned home and stayed there for the rest of the night. The Crown prosecutor did not challenge this evidence or suggest to the Appellant that he had arranged for others to be in the garage of Ms Harvey’s block in the early morning of 27 December. He did suggest to the Appellant that he had lit the fires or arranged for someone to do it on his behalf, a proposition the Appellant denied. However, it is appropriate to record that the Appellant’s evidence in response to a deal of cross-examination was not, at least in its terms, persuasive.

23    One of arguments of the Crown at the trial was that not only did this event indicate an extraordinary interest in the very area where Ms Harvey was living but that the Mr Demajo was mistaken as to the date of this event, that it occurred on 28 December and Mr Demajo was sent to Ms Harvey’s block in order to inform the Appellant as to what had occurred on the previous night. If established, such an interest on the part of the Appellant would be strong evidence that he knew both Ms Harvey’s address and was involved in the lighting of the fires on the previous night.

24    The jury were, of course, entitled to accept some only of the evidence to which I have referred. They could thus have accepted that the Appellant was angry with Ms Harvey at her break-up of their relationship some 5 months before the fires, that within a reasonably short time prior to the fires the Appellant threatened to “get” her, and that shortly before the fires he was seeking to ascertain her address. There was no obvious legitimate reason for the presence of the two persons seen at the garages of the block of units at about 12.30 am on 27 December and the actions of whichever person it was that sought to hide what he was carrying in one hand provided grounds for thinking that he, and whoever else was there, were up to no good. Given the fires 24 hours later, the jury were entitled to infer that those persons were involved with those fires. As has been said, there was evidence that the Appellant was in the car used by these persons in the area at the time. Although, somewhat surprisingly it was not suggested to the Appellant in cross-examination that he was one of the persons at 158 Willarong Road and the particular part where the fires occurred, 24 hours before they were started.

25    Mention should however be made of some other evidence upon which counsel for the Appellant in this Court relied. Apparently at the time of the fire, on the vehicle owned by Ms Harvey’s brother, was written the words, “Viv don’t sell bad drugs, you slut.” Ms Harvey herself gave evidence that in early 1992 she had received phone calls from a person who identified himself as Peter who made demands on her for drugs and money but did not make threats in the event of non-compliance. In cross-examination she said that she thought she recognised the voice of that person but she was not asked who it was. Ms Harvey also said that she could recall something to the effect that a friend had informed her of receiving a phone call from someone who gave the name Peter and who had sought Ms Harvey’s whereabouts. The friend, a Ms Barton gave evidence but was not asked questions on this topic. Ms Harvey denied selling drugs in 1992.

26    It was submitted that the evidence referred to in the immediately preceding paragraph provided a reasonable hypothesis consistent with the innocence of the Appellant, viz. that “Peter” was responsible for the fires. I can accept that this evidence raises a possibility along those lines. Indeed, the possibility that the offender was someone other than the Appellant would exist independently of this evidence. Experience shows that some fires are started for no reason at all and someone could have had a grudge against some other occupant of the block of units. Such possibilities exist in most circumstantial evidence cases. However, in my view, one does not equate a “reasonable hypothesis consistent with innocence” with bare possibilities.

27    It strains credulity and takes coincidence further than it can reasonably be taken to think that someone else, unconnected with the Appellant could have started the fires in the self same place where, if the evidence of the other unit owner is accepted, the Appellant, or accomplices of him, were 24 hours earlier without any conceivable legitimate explanation. In my view his Honour was not in error in refusing to direct a verdict of acquittal and the third ground of appeal is not made out.

28    The onus remained, of course on the Crown. Though the evidence was circumstantial, in my view it was of sufficient weight that the jury were well entitled to find the Appellant guilty upon the basis of it and there is nothing in the strength (or weakness) of the Crown case to justify this Court in setting aside the jury’s verdict. It follows that neither of the first two grounds of appeal is made out.

Ground 4
His Honour erred in failing to clearly direct the jury that it was their duty to acquit the Appellant if there was a rational inference reasonably open that another may have been responsible for lighting the fire.

29    This ground can be readily disposed of. Having told the jury in the course of his summing-up that the onus was on the Crown to prove its case beyond reasonable doubt, his Honour said:-
“Before you can find an accused person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only a reasonable one but that it is the only reasonable one. I repeat that to you because of its importance: Before you can convict a person upon circumstantial evidence, you must be satisfied beyond reasonable doubt that that finding, not only is a reasonable one, but it is the only reasonable finding open to you. That is to say, if you are of the view that some other reasonable finding shows you that it may have been some other person responsible, then you could not convict the accused..”


30 A consideration of those words makes it apparent that there is no substance in this ground. Indeed, there was no request for any re-direction in this regard made at the trial and leave under r4 of the Court of Criminal Appeal rules is necessary to raise the point. I would refuse such leave.

31    The appeal should be dismissed.

32    BARR J : I agree with Hulme J.
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