R v Wilson
[2004] VSCA 120
•2 July 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 176 of 2002
| THE QUEEN |
| v. |
| ROBERT LAWRENCE WILSON |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 June 2004 | |
DATE OF JUDGMENT: | 2 July 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 120 | |
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Criminal Law – Arson – Verdict not unreasonable – Trial judge only obliged to tell the jury so much of the law as they needed to resolve the issues – Alford v. Magee (1952) 85 C.L.R. 437 applied – Directions to jury adequate in the circumstances of the case – Ignition of gas not an “element of the offence” within the meaning of s.321N(2)(b) of the Crimes Act 1958.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O.P. Holdenson, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T. Kassimatis | Robert Stary & Associates |
WINNEKE, P.:
I agree with Buchanan, J.A., for the reasons which he gives, that leave to substitute grounds 1 and 2 should be granted, but that leave to add grounds 3 and 4 should be refused. For the reasons given by his Honour, and those of Callaway, J.A., I agree that the application for leave to appeal against conviction should be refused.
CALLAWAY, J.A.:
I agree with Buchanan, J.A., for the reasons his Honour gives, that leave to substitute grounds 1 and 2 should be granted, that leave to add ground 4 should be refused and that grounds 1 and 2(a) fail. I would also refuse leave to add ground 3, but simply on the basis that it has insufficient prospects of success having regard to the terms of the exception taken below and its importance in the scheme of things. Mr Kassimatis did not much press ground 2(a), conscious no doubt that, if it were made out, the proviso to s.568(1) of the Crimes Act 1958 would be applied. The applicant would not thereby have lost a chance which was fairly open to him of being acquitted.[1]
[1]Mraz v. R. (1955) 93 C.L.R. 493 at 514 per Fullagar, J.; R. v. Weiss [2004] VSCA 73 at [70].
I should like to say something on my own account in relation to grounds 2(b) and (c). As Buchanan, J.A. explains, this was a clear case for the application of Sir Leo Cussen’s great guiding rule.[2] By the time of the charge, by reason of defence counsel’s final address, it was common ground that there had been an attempt to commit arson.[3] The defence was that the applicant was not the culprit. It may be that, even if the judge’s directions on the elements of attempt had been incomplete or
erroneous, that would not have mattered.[4] As it happens, his Honour did direct the jury on all the elements of attempt pertinent to the facts. A complaint that he failed sufficiently to relate the law to the evidence does not sit well with the concession in defence counsel’s final address. To do so in detail would have been a waste of the jury’s time.
[2]Alford v. Magee (1952) 85 C.L.R. 437 at 466; R. v. Lawrence [1997] 1 V.R. 459 at 471; R. v. Pope (2000) 112 A.Crim.R. 588 at [13]. The references to R. v. Ghosh [1982] Q.B. 1053 in the second of those cases must now be read in the light of Peters v. R. (1998) 192 C.L.R. 493.
[3]In summarizing defence counsel’s closing address, the judge said, “he put to you that the defence does not say that what happened was not an attempt to blow up the place or to set it on fire”.
[4]See, for example, R. v. Pope at [12] and [21]-[22].
Mr Kassimatis argued that s.321N(2)(b) required a direction that the Crown had to prove that the applicant intended or believed that the gas would be ignited and that, as a result, the premises would be destroyed by fire. To my mind, they are not facts or circumstances of the kind referred to in paragraph (b). The only paragraph of sub-s.(2) that was relevant was paragraph (a). If the applicant intended the factory to be destroyed by fire, it matters not whether that intention was likely to be realized. If the accused fires at a distant person intending to kill him, it matters not that the bullet is unlikely to strike. Moving closer to the present case, if the accused digs a hole intending a blind man to fall into it and be injured, it matters not that he leaves it to chance whether the man will walk that way.[5]
BUCHANAN, J.A.:
[5]The requirements of s.321N(1), especially paragraph (b) of that sub-section, would still have to be satisfied, but they would be in the first example and I am inclined to think that they would be in the second example too. The accused has done everything he plans to do, intending thereby to injure the victim.
The applicant was the managing director of U.V.S. Ultraviolet Pty. Ltd. (“UVS”), a company founded by his parents. UVS manufactured ultraviolet lamps and disinfected water using germicidal ultraviolet light at premises in Scoresby.
In the early hours of 12 February 1998 a number of LPG and oxygen cylinders in the premises of UVS were taken from one part of the premises and spread through the office and work areas. Regulators were removed from most of the cylinders, which allowed the gas and oxygen to escape. Electrical equipment, such as a computer file-server and a soft drink vending machine, which were normally left
connected to the electricity supply, were switched off. Filing cabinets and drawers, which had been left closed the previous evening, were opened, exposing their contents. The leaking cylinders were discovered by employees of UVS arriving for work and the gas was turned off.
The applicant was arraigned in the County Court and pleaded not guilty to a count of attempted arson and guilty to 21 counts of obtaining property by deception. The charges of obtaining property by deception arose out of investigations into the affairs of UVS after 12 February 1998.
The Crown case was entirely circumstantial. Evidence was led that on 28 January 1998 an insurance broker engaged by the applicant applied to the insurer of UVS to increase its business interruption insurance cover from $610,000 to $1,500,000 and its plant and equipment cover from $2,323,500 to $3,700,000, although the applicant had not been notified of the insurer’s acceptance of the increase when the LPG and oxygen cylinders were opened. UVS had an account with Westpac Banking Corporation (“the Bank”), initially with an overdraft limit of $200,000. By December 1997 the overdraft had increased to $750,000. In January 1998, the Bank informed the applicant that it was appointing independent accountants to conduct an investigation into the viability of UVS. Appointments were made for the accountants to see the applicant, but were postponed by the applicant. The last appointment, which was not postponed, was on 12 February 1998.
Experts gave evidence that LPG expands and spreads upon coming into contact with the open air. Switching off electrical equipment would have avoided a spark which might have caused a premature explosion of the gas and oxygen. On the other hand, turning on an electrical switch could have caused a spark which could have ignited the gas in the air. Similarly, had anyone entered the premises smoking a cigarette, or if someone had lit the candle on the table in the foyer, an explosion could have occurred. If there had been an explosion, it would have demolished the premises and left a major fire burning. The exposure of the contents of filing cabinets and drawers increased the prospect of their destruction and the flammability of the premises.
Alarm systems were installed in the premises of UVS and monitored by a security service. Employees of the security service spoke by telephone to the applicant in the early hours of 12 February 1998, and he confirmed that he was working at the premises. The applicant telephoned the security service at 5.01 a.m. and advised them that he was still on site. The applicant told the police that he went to the premises of UVS at 11.30 p.m. on 11 February 1998 to conduct lamp tests, and called the security service several times to inform them of his presence. He said that he left the premises at approximately 5.45 a.m. and that he turned on the alarm system as he left. The records of the security service showed that the alarm was turned on at 6.17 a.m. The applicant said to the police that UVS was performing well and had no financial problems.
The first employee to arrive at the premises that morning said that the alarm was turned off. At 6 a.m. the general manager of a printing company which was a neighbour of UVS arrived at work. He heard a hissing noise, but could not locate its source. One of the UVS employees, who arrived at the premises at 7.45 a.m., said that the opened cylinders were hissing. There was icing or frosting on some of the cylinders, which meant that they had been open for some time. Each cylinder was large and heavy, weighing 45 kilograms when empty. The size and weight of the cylinders made them difficult to handle.
An accountant who investigated the affairs of UVS after 12 February 1998 said that the company had made substantial trading losses in the last few years and was in financial distress. The Bank subsequently appointed a receiver on the ground that the company was unable to meet its liabilities. Investigation revealed the fraud perpetrated by the applicant which became the subject matter of the 21 counts of obtaining property by deception. The crimes were committed in the period between March 1994 and January 1998. The applicant manufactured false documents to induce financiers to believe that UVS had purchased plant and equipment and to lend UVS the price of the plant and equipment. The applicant thereby obtained approximately $2,100,000. The applicant obtained a further $1,900,000 from a company by falsely representing that the money would be applied for the purpose of research and development pursuant to an agreement between UVS and the company and that the money so obtained had been applied solely for that purpose. In fact, the money obtained by the applicant was not spent on research or development, but was used to keep the business running and stave off creditors.
No evidence was led on behalf of the applicant.
At the conclusion of the trial the jury returned a verdict of guilty to the charge of attempted arson. The applicant was sentenced to a term of four years' imprisonment on the count of attempted arson and to a term of six months' imprisonment on each of 14 counts of obtaining property by deception, to a term of nine months' imprisonment on each of six counts of obtaining property by deception and to a term of four years' imprisonment on one count of obtaining property by deception. With a measure of cumulation, a total effective sentence of eight years' imprisonment was imposed and a minimum term of five years was fixed before the applicant was to be eligible for parole.
At the outset of the hearing of the appeal counsel for the applicant sought leave to substitute the following as the grounds of the application:
“1.That the verdict of the jury was unreasonable or cannot be supported having regard to the evidence; or, upon the whole of that evidence, it was not open to the jury, properly directed, to be satisfied beyond reasonable doubt that the (then) accused was guilty.
2.The learned trial judge failed adequately to direct the jury, and erred in his directions to them, on the elements of the offence charged. In particular, the learned judge:
(a)erred by directing in respect of the offence of attempting to damage by fire and not, as the count alleged, attempting to destroy by fire; and in failing to direct in the latter terms;
(b)failed, or failed properly, to direct that, unless the prosecution proved to the criminal standard that an attempt was made to ignite the gas, the prosecution would not have proved the actus reus of the offence, and failed properly to relate the relevant evidence to the law on that issue; and
(c)failed to direct, in accordance with s.321N(2)(b) of the Crimes Act 1958, that the prosecution must prove to the criminal standard, inter alia, that the (then) accused ‘intend[ed] or believe[d] that any fact or circumstance the existence of which is an element of the offence [would] exist at the time the offence [was] to take place’: which in this case amounted to a direction as to proof that the (then) accused intended or believed that (i) the gas would be ignited; and (ii) that, as a result, the premises would be destroyed by fire.
3.The learned trial judge failed adequately to charge the jury, and erred in his charge to them, on the evidence about insurance. In particular, the learned judge:
(a)erred by charging the jury in terms, not consistent with the equivocal evidence, that at the time of the alleged attempted arson increased cover was in place; and
(b)failed to charge the jury on the evidence of the (then) accused’s belief about the insurance arrangements.
4.The trial miscarried as a consequence of the cumulation of some or all of the errors and matters alleged in grounds 2 and 3.”
The Court granted leave to conduct the application as if the foregoing were the grounds, reserving the question whether leave to amend should be granted until the application was determined.
It was submitted that the destruction of the premises was so remote a possibility that it could not be concluded beyond a reasonable doubt that the applicant set out or intended to achieve that end. Hence the verdict was unreasonable. Counsel for the applicant drew our attention to what he described as oddities seemingly inconsistent with the Crown’s case and the verdict. There was no obvious source of ignition, and turning off electrical equipment minimized the risk of ignition. There was no evidence of the quantity of gas that escaped from the cylinders and thus the likely result of ignition was unknown. The fire would have drawn attention to the business and was likely to lead to an investigation that revealed the applicant’s fraudulent practices. The production manager of UVS, the first employee to arrive on 12 February 1998, did not turn off any of the gas cylinders he found venting.
In my opinion, the fact that an explosion and fire were problematic in that they depended to an extent on chance does not render the verdict unreasonable. The matters relied upon by counsel were defects in a plan to destroy the premises. They fell short of flaws which were so great and so obvious that it could not be concluded that the person who arranged and opened the cylinders and opened cabinets and drawers intended an explosion or fire which would destroy the premises. The applicant did think that opening the gas cylinders could cause an explosion and fire. A policeman gave evidence that when the applicant arrived at the premises of UVS at abut 8.50 a.m. on 12 February 1998 he “immediately went into the factory and came out only a few minutes later saying that someone had tried to blow up his factory.” Later he said to the police:
“I have got no idea who placed the gas bottles throughout the building. I cannot believe how lucky it was that none of my employees were injured or even killed. … I am just relieved that the building did not explode. Had the building caught fire I would have had nothing.”
The matters advanced by counsel for the applicant at their highest rendered it unlikely that an intention to destroy the premises would be carried out, but they did not rule out the existence of such an intention. The evidence also warranted the conclusion that the person who made the attempt was the applicant. The “oddities” relied on by counsel for the applicant were not inconsistent with the conclusion that the applicant arranged and opened the gas cylinders intending to destroy the premises. Turning off electrical equipment increased the prospect of a spark when it was turned on. An explosion and fire would probably have destroyed the records of the applicant’s fraud. The conduct of the production manager of UVS was irrelevant. In my opinion, the verdict was not unreasonable.
The second ground of the application complains that the trial judge erred in failing to properly instruct the jury as to the actus reus of the crime, the mens rea of the applicant and the form of the offence alleged by the Crown.
With respect to actus reus, it was submitted by counsel for the applicant that the trial judge erred in failing to direct the jury that the Crown was obliged to prove that an attempt was made to ignite the gas. As to intention, it was submitted that the trial judge failed to tell the jury that the Crown was required to prove that the applicant intended or believed that the gas would be ignited and the premises thereby destroyed.
The trial judge said to the jury:
“The Crown must prove such an act or series of acts as would have constituted the completed offence if they had not been interrupted, either by a voluntary determination or by some other cause such as it did not work…. Here the Crown says to you it is an inescapable inference that he, the accused, did all the preparatory work. ... The defence suggests that someone else came in after the accused had left the premises and sabotaged the system. It also points to the minimisation of an accidental spark of some sort igniting the gas fuel premises. There is of course evidence of its possible theoretical perhaps ignition, either by a switch or candle or some passers by with a cigarette. But in the end you might think, and I make this as a comment because it is one of your functions, but you might think that the question is fairly simple. Did he set it up with the intention that an ignition should happen in his absence?”
The extent to which the trial judge was obliged to explain the law to the jury depended upon the real issues in the case. As Callaway, J.A. said in R. v. Pope[6], “[A] judge should tell the jury only so much of the law as they need.” His Honour quoted from the judgment of Dixon, Williams, Webb, Fullagar and Kitto, JJ. in Alford v. Magee[7]. Their Honours said:
“And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.”
[6](2000) 112 A.Crim.R. 588 at 592.
[7](1952) 85 C.L.R. 437 at 466.
In the present case, as his Honour told the jury, the real issue was not whether an attempt was made to ignite the gas and thereby destroy the premises, but rather the identity of the person or persons who arranged and opened the cylinders of gas and oxygen, turned off electrical appliances and exposed papers in the premises. By the end of the trial the issue that emerged was identity. Counsel for the applicant in his final address to the jury dealt only with that issue. He did not say that the jury were required to, but should not, find that ignition of the gases could occur and that was the applicant’s intention. In those circumstances, I consider that the trial judge was not required to instruct the jury as to the law relating to attempt. Nevertheless he did so, and related the law to the evidence by telling the jury how the Crown suggested ignition could have occurred and that they were required to decide whether the applicant intended it to occur. In the circumstances of this case, I consider that no more was required to be said.
I do not accept the contention that the Crown was required to establish that the applicant made an attempt to ignite the gas. The Crown was required only to prove that the applicant’s conduct was more than merely preparatory to the commission of the offence of arson and was immediately and not remotely connected with the commission of the offence.[8] That was achieved in this case by establishing that the applicant caused the escape of gases that could be detonated by a spark.
[8]Section 321N(1)(a) of the Crimes Act 1958.
Counsel for the applicant submitted that the trial judge should have told the jury in accordance with s.321N(2)(b) of the Crimes Act 1958, that the Crown was required to prove that the applicant intended or believed that ignition of the gas would occur, for that was an element of the offence. The sub-section provides:
“(2)For a person to be guilty of attempting to commit an offence, the person must –
(a)intend that the offence the subject of the attempt be committed; and
(b)intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place.”
Although I do not consider that the ignition of the gas was an element of the offence as that term is employed in s.321N(2)(b)[9], nevertheless the trial judge did tell the jury that the question they must decide was whether the applicant caused the gas to escape with the intention that it should be ignited.
[9]Unlike, for example, the fact that a person with whom an indecent act is committed is a child under the age of 16 years, contrary to s.47 of the Crimes Act.
The offence with which the applicant was charged was an attempt “to … destroy by fire” the premises of UVS. In his charge, the trial judge told the jury that the elements of the crime of arson were acts by the accused which resulted in damage by fire to the property of another with an intention on the part of the accused to damage the property by fire. The evidence in the case was that if the gas had been ignited, the premises would have been destroyed. Counsel for the Crown and the applicant in their final addresses spoke of the result of ignition of the gas in terms of destruction of the premises. No exception was taken by counsel to the trial judge’s directions to the jury on the subject. Accordingly, in my opinion, the trial judge’s use of the word “damage” could not have affected the jury’s verdict. Counsel for the applicant conceded the error was not sufficient to cause a miscarriage of justice, but said that it compounded the effect of other errors of which he complained. In my opinion, the error was not sufficient, either by itself or in combination with anything else said by the trial judge, to cause the trial to miscarry.
In his summary of the evidence in the course of his charge the trial judge referred to the applicant’s request to increase the amount of the insurance cover of the premises of UVS and said of the evidence of a former manager of the insurer:
“He told you that the increase was accepted by QBE … and it seems that the increase was accepted on 12 February ’98, as it would happen, subject to the payment of the premium.
Mr Roberts said that the company regarded itself as being on risk from that day.”
His Honour’s summary was accurate. The witness said that if there had been a claim on 12 February 1998, the insurer would have been bound to indemnify UVS on the basis that the amount of the insurance had been increased, provided that an increased premium was paid.
There was some evidence of the applicant’s state of mind as to the question of insurance. An investigator employed by the insurer said that he was present when the insurer’s former manager spoke to the applicant on 13 February 1998 and the applicant said the insurer was “… not actually on risk for the extra increase in cover that we had asked for. That hasn’t gone through yet and we are still covered for the original amounts.” While counsel for the applicant took exception to parts of the charge dealing with insurance, he did not complain of the trial judge’s failure to canvass the question of the applicant’s state of mind. Counsel for the applicant was able to deal with the point in his address to the jury, and I do not consider it was so significant that the failure of the trial judge to refer to it caused the trial to miscarry. Counsel for the applicant in this Court conceded that the matter by itself would not have affected the jury’s verdict, but said that it compounded the effect of other deficiencies in the trial judge’s directions to the jury.
For the foregoing reasons, I am of the opinion that the trial judge’s directions to the jury were neither deficient nor erroneous. Accordingly, the proposed fourth ground of the application could not be established. I would grant leave to amend the grounds of the application to replace the existing grounds 1 and 2 with the new grounds 1 and 2, for they are a reformulation of the existing grounds. Otherwise I would refuse the application to amend the grounds on the basis that grounds 3 and 4 have no prospect of success.
I would refuse the application for leave to appeal against the conviction.