R v Webster - [2006] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEBSTER
[2006] SASC 228
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
3 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Application for leave to appeal against conviction - applicant convicted after a trial in the District Court of one count of damaging property contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) - whether an error is disclosed by the failure to adduce evidence in relation to fire accelerants - whether any deficiency in the police investigation discloses a miscarriage of justice - whether certain statements were properly left to the jury - no arguable error or miscarriage made out - the appeal has no reasonable prospect of success - application refused.
Criminal Law Consolidation Act 1935 (SA) s 85(1), s 170(1), referred to.

R v WEBSTER
[2006] SASC 228
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

THE COURT: Ms Webster has applied for leave to appeal against a conviction on one count of damaging property, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA). The applicant was found guilty on each count by a jury.
The charges arise from the destruction of a house by fire on 5 June 2004. There was no dispute that the fire was deliberately lit. The issue for the jury was whether the prosecution had established, beyond reasonable doubt, that Ms Webster lit the fire.
The application for leave to appeal was heard by a single Judge. She refused leave to appeal.
Ms Webster requested that her application be heard by the Court of Criminal Appeal on oral argument. The Court so ordered.
Before hearing the application the Court had the opportunity to consider detailed written submissions made to the single Judge, the reasons of the single Judge, and a written submission prepared by Ms Webster.
Ms Webster appeared in person to put submissions in support of her application.
It was not disputed that Ms Webster knew the owner of the house, nor that she was seen entering and leaving the land on which the house stood not long before the house was seen to be on fire. Indeed, the relevant witness said that he saw smoke coming from the house, and rang emergency services, within minutes of Ms Webster leaving the property. Ms Webster disputed that she entered the house on the occasion in question. The owner of the house was not present at the time.
The prosecution case was a circumstantial case, but included evidence of a souring of the friendship between Ms Webster and the house owner, of a threat by Ms Webster to burn the house, and evidence that on the day of the fire Ms Webster had purchased petrol and put it in a can that was found in the boot of her car a few hours after the fire. There was also evidence that the fire was started by the use of accelerants.
Having considered the written submissions before the single Judge, and the submissions by Ms Webster, we are of the opinion that leave to appeal should be refused. The appeal has no reasonable prospects of success.
We agree with the reasons given by the Judge. Those reasons are detailed and thorough. On most issues we are content to adopt the Judge’s reasons. However, we add the following comments on some of the matters argued by Ms Webster.
One complaint made by Ms Webster is that an expert witness, called by the prosecutor, was permitted to say in evidence that it was not surprising that when Ms Webster’s clothing was examined it showed no traces of a fire accelerant. The explanation given by the witness was that, for a variety of reasons, this was not uncommon. This explanation for, or comment on, the failure to find any traces of an accelerant had not been included in the expert’s written report. Linked to this complaint is an application to adduce further evidence from an expert, not called at trial, suggesting that the explanation for the failure to find traces of an accelerant was not what the relevant expert would have expected.
As the Judge explains, this issue was raised at the trial. The expert called by the prosecution was cross-examined on the point, and on his reason for not including the explanation in his report. The Judge gave defence counsel an opportunity, over a weekend, to consider whether he wished to call a witness to challenge the expert’s opinion. Counsel for the defence did not do so.
We agree with the Judge’s observation that defence counsel should have anticipated that an explanation for not finding any traces of accelerant might be offered. The trial Judge did not err in allowing the witness to give the explanation. As counsel for the defence was given an adequate opportunity to consider whether to call an answering witness, the application to call further evidence cannot succeed. The proposed evidence could not exclude the possibility that Ms Webster simply did not spill any petrol on her clothes or on her hands. The suggested further evidence is also based on a premise that appears to be unreliable. It is that five litres of petrol had been used to light the fire. That appears to be speculation.
In all the circumstances, and in particular having regard to the prosecution case as a whole, no miscarriage of justice has arisen from the giving of the explanation by the expert, or from the failure of the defence to lead evidence to the contrary.
Another ground raised by Ms Webster relates to the adequacy of the investigation by the police into the cause of the fire. There are two aspects to this.
First, a complaint that the police failed to investigate adequately evidence that some children were heard saying things that might suggest that one or some of them had something to do with the fire. This issue also was raised before the jury. We agree with the Judge that, in the end, it was left in a manner favourable to Ms Webster. It was left to the jury on the basis that they might use the evidence of the statements by the children as proof of the truth of those statements.
The other complaint is that the police had not photographed, or had examined by an expert, the front door to the house. On the prosecution case this might have been the means by which Ms Webster got access to the house. There was conflicting evidence as to whether or not the front door of the house was unlocked at the time. The door lock had been lost or destroyed, and so the defence was denied the opportunity to have it examined.
This issue also was raised before the jury.
As the Judge said, the issue of whether the front door was locked or unlocked was the subject of a good deal of evidence before the jury. The Judge’s directions were adequate. The failure of the police to examine the door lock does not give rise to any risk of a miscarriage of justice. The same comment applies to the failure to make enquiries sooner than they were made in relation to the statements by the children.
Several other complaints raised by Ms Webster amount, in substance, to relatively minor criticisms of particular aspects of the evidence of particular witnesses. They were matters for the jury to take into account in deciding whether, taking the circumstantial evidence as a whole, they were satisfied beyond reasonable doubt that Ms Webster had lit the fire. Of themselves they are not capable of giving rise to any complaint.
Ms Webster complains that in the course of his summing up the Judge referred to a discrepancy between what she had told the police, on the day of the fire, about the time at which she left a friend’s house before going to the house that was burned, and what she said at the trial itself. Ms Webster complains that the Judge implied that she was lying on the point. We have considered that part of the Judge’s summing up and are satisfied that there is no substance at all in that point. The Judge did no more than refer to the difference between what she told the police and what she said in evidence. In any event, the topic does not appear to be of any particular significance.
Accordingly, for the reasons given by the single Judge, and for the further reasons that we have given, we are satisfied that an appeal against conviction has no reasonable prospects of success. We refuse leave to appeal.