R v Ward

[1996] QCA 274

[1996] QCA 274

COURT OF APPEAL

DAVIES JA PINCUS JA BYRNE J

CA No 121 of 1996
THE QUEEN
v.

ROBIN WARD Appellant

BRISBANE
..DATE 19/07/96
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DAVIES JA: The appellant was convicted of attempted arson in
the District Court at Brisbane on 15 March this year. He has
appealed against that conviction on three grounds which I will
state in summary.

The first is wrongful admission of opinion evidence concerning the make-up and type of stain found on a car. The second was the wrongful admission of statements made by the appellant after he had asked for a solicitor and said that he did not wish to answer questions.

I should add that during the course of his oral submissions to this Court the appellant added some other bases for his argument that his admissions should have been excluded. He said that the police evidence was not corroborated. He said that they did not use recording devices which he said should have been recorded and he says that for those reasons, as well as the ones which I have mentioned, the evidence should have been excluded.

I should also add perhaps that the appellant makes no complaint once that evidence was admitted about the Judge's direction to the jury in respect of it. He said, and quite accurately, that the Judge's warning to the jury about that evidence was quite a strong one.

His third ground of appeal was that evidence of a person describing a car which he saw in the vicinity of the attempted arson should have been excluded. The appellant has argued his appeal in person and as will appear from the transcript of 190796 D.1 T15/SB/16 M/T COA163/96

argument he has argued it very articulately and completely.

In 1994, the complainant whose name is Warren Middleton, rented out a room to the appellant and his girlfriend. Relations between the appellant and the complainant deteriorated until the complainant asked the appellant to leave his house. There was an argument about how much of the bond money the complainant was entitled to keep. The complainant said in his evidence that the appellant then threatened that he would punish the complainant tenfold for every cent that he had not paid him.

A rather different version of this conversation was put to the complainant on the appellant's behalf but denied and the appellant did not give evidence. The appellant then rented a room from Cheryl Cairncross. He also had an argument with her and she asked him to leave shortly before 29 January 1995, the date of the offence.

He told her, according to her, that he would not be moving until he found a place to go to. On 28 January the appellant hired a 200B Datsun motor vehicle and returned it to the hirer the next day.

The colour of that car was variously described as yellow, yellowish, beige and tan. It had a chrome strip down the side.

When it was returned to the hirer, a director of the hirer noticed what he described as a stain on the door which he said was consistent with burn marking on the paintwork.

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That witness, Mr Brady, said that he had seen similar burn marks
on paintwork when he was in the navy engaged in fire fighting
and damage control on ships and also when he had been involved
in service stations when petrol had spilt and ignited close to
paintwork on cars. It was plain that he described what he
described as a stain in this way based on his prior observation
of similar stains.

I should add here that the appellant added to his complaints about this evidence being wrongly admitted that no expert evidence was called on this question from the Crown. There was an expert witness called. She was asked some questions relevant to this in cross-examination and, in my view, to the extent that her evidence was relevant on this question, it tended to support Mr Brady's observations.

The evidence of Mr Brady had been objected to at trial but His Honour had overruled that objection. In my view His Honour was correct in overruling it. The witness was merely describing the stain by reference to his earlier experience of having seen similar stains. It was an observed tendency of painted metal to have the appearance he saw after contact with fire. On that basis, in my view, the evidence was rightly admitted.

On 28 January Ms Caircross noticed he appellant leave and later return in the vehicle I have just described. She also saw the appellant leave in this vehicle about 9.30 p.m. on that night and return about 12.30 a.m. on the morning of 29 January.

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The complainant was woken at about 2 a.m. on the morning of 29
January by the barking of his dog. He noticed a fire outside
and thought it was his car on fire. He rang the triple O number
and then ran outside to find it was indeed his car which was
aflame.

He managed to douse the fire with his garden hose. The fire brigade arrived a short time later. An inspection revealed a Coca Cola bottle on his car and another in the gutter behind it.

They were later found to have contained petrol.

John Smith, who lived over the road from the complainant, said that he saw a yellowish car, probably Japanese, with a stripe down the middle parked across the road from his place at about 2.20 a.m. on the morning of 29 January. He was shown a photograph of the car which the appellant had hired and said that it was similar to the car which he saw. He then saw and heard it drive off. Mr Smith's evidence was the subject of the appellant's third ground of appeal.

This evidence did not, in my view, purport to identify the car as the car which the appellant had been driving that night. The witness was saying no more than that the car which he saw was similar to the car in the photograph shown to him and I think that the evidence was admissible as part of the circumstantial case against the appellant.

I should say, nevertheless, that His Honour did ask the jury to reflect on the fact that his observation - his, Mr Smith's 190796 T16/JB M/T COA163/96

observation - took place at 2.20 a.m. at night with the benefit only of street lighting casting a beam across the road. He also asked them to consider what effect tiredness may have had on Mr Smith's observation at 2.20 a.m. in the morning having regard to the fact that he had only got home apparently at midnight approximately that night.

When police first went to the appellant's home to interview him Constable Morrow told him that he was investigating a complaint of arson in the early hours of that morning and said he would like him to come to the CIB to be interviewed. The appellant immediately replied, according to Constable Morrow, and to the other police officer, "Are the children okay?" Morrow said, "What children?" The appellant then replied, "Warren's children. I don't care about him but I am worried the kids might have got hurt." Constable Morrow then told the appellant that no one had been hurt and the appellant then accompanied the police to the police station.

At that point the appellant knew that the police were investigating an arson or attempted arson at Carseldine but had no means of knowledge that it was the premises of Mr Middleton at which it was said that this had occurred. Moreover, the admission, for that is what it was, was not merely of his knowledge of an arson - that offence - but it seems to me the proper inference was of his involvement in that arson. This stood as an uncontradicted admission by the appellant of his involvement in the crime.

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At the police station Constable Morrow told the appellant that
the complainant suspected that he was responsible for what had
happened and asked him what he could tell about it. The
appellant replied, according to Constable Morrow, "I hate
Warren's guts. I couldn't care if his house burnt down and he
was in it. I would shake the person's hand who did it."
However he said that he was not prepared to be interviewed, he
did not have to say anything, and that he wanted to have his
solicitor present.

Nevertheless, the police continued to ask him some questions which included some questions about the car. He was then asked, "What is the yellow car, the Datsun, you had yesterday and this morning?" and the appellant replied, "I don't have a car." One of the policemen then said, "I know you don't have a car, but where is the one that you had over the weekend, the one you left at Copperfield Street this morning?" The appellant relied, "I don't know what you are talking about." He was then asked, "Robin, you were seen in this this morning by Cheryl. Where is the car and who owns it?" and he answered, "I am not saying anything."

Up to that point his answers were evasive because the fact was that according to the uncontradicted evidence again, that he had hired that Datsun car, as I have previously indicated. The conversations were not recorded by a recording device. The police did persist in questioning the appellant after he had indicated that he did not wish to be questioned, and the circumstances in which the conversations were recorded in one of 190796 D.1 T17/TES2 M/T COA163/96

the policeman's notebook and signed by both, gave rise to some
basis of suspicion.

This Court has in the past commented upon the necessity for police wherever possible, and that includes not only in police stations, to record conversations with suspects by means of recording devices which they should always have available, and the failure to record conversations in that way gives rise always to arguments of this kind. It was, in my view, improper of the police not to have recorded these conversations.

Nevertheless, the learned trial Judge in the exercise of his discretion, admitted that evidence and I can see no basis in this Court for overturning the exercise for that discretion. He went on in quite strong terms to tell the jury, in effect, that they should be cautious in accepting the police evidence. They were invited to consider whether in fact the police may have been motivated to agree upon a story which might not otherwise have been completely accurate.

In the Court below the appellant's counsel had sought to exclude evidence of conversations which occurred after the appellant had said he would say nothing further and that he wanted a solicitor. But as I have already indicated, the major admission against interest by the appellant, the most telling admission, occurred before this impropriety on the part of the police, occurred.

That, as I indicated to the appellant during the course of his argument was, in my view, the most telling piece of evidence 190796 D.1 T17/TES2 M/T COA163/96

against him and being uncontradicted, in my view, justified the jury in reaching the conclusion which they did. It was, as I have already indicated, also supported by the evidence which, although circumstantial, indicated reasonably strongly, in my view, that it was the appellant who was the offender.

It follows, in my view, that each of the grounds of appeal which have been raised must fail and in my view the appeal should be dismissed.

PINCUS JA: I agree.

BYRNE J: I do not find it necessary to consider whether an impropriety occurred in the conduct of the police. Otherwise, I agree with the reasons of the presiding Judge and with the orders proposed.

DAVIES JA: The appeal is dismissed.

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