Ronald David Pope v R No. SCCRM 93/373 Judgment No. 4344 Number of Pages 11 Criminal Law and Procedure

[1993] SASC 4344

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (1), MILLHOUSE(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal against conviction - arson and attempted false pretences - case against appellant entirely circumstantial - trial judge failed to give clear and complete directions as to the approach to be taken by the jury when assessing and using circumstantial evidence; to relate directions to the specific factual issues; to explain thrust of Crown case and summarise the strengths and weaknesses of Crown case; and to warn jury to approach evidence of one Crown witness with caution - Crown failed to prove insurance policy. Peacock v The King (1911) 13 CLR 619; Shepherd v The Queen
(1990) 170 CLR 573; R v Shinner (CCA, 25 November 1993, Judgment Number 4281 in SCALE) and R v Phan (1990) 54 SASR 561, applied.

HRNG ADELAIDE, 9 December 1993 #DATE 22:12:1993
Counsel for appellant:     Mr R N H Mayne
Solicitors for appellant:    Andersons Barker Gosling
Counsel for respondent:     Mr P J L Rofe QC
   with Ms J Rusalen

ORDER
Appeal allowed - retrial ordered.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of the crimes of arson and false pretences. 2. The appellant and his wife resided in a house at Murray Bridge. The brother of the appellant's wife, Bernard Hollingsworth, also resided there. There were matrimonial difficulties and the appellant and his wife decided to separate. She and her brother left the house on the 24th June 1992 and went to Melbourne. Subsequently the appellant moved out of the house to reside at his parent's home at Tailem Bend. 3. At about 3 o'clock on the morning of the 3rd July 1992 a fire broke out and it seriously damaged the house. That fire is the subject of the charge of arson. On the following morning the appellant made a written claim on CIC Pty Ltd in respect of the loss sustained in the fire and that claim is the subject of the charge of false pretences. 4. The case against the appellant was entirely circumstantial. It may be summarised as follows:
    1. Evidence by Hollingsworth that there had been
    conversations between him and the appellant in which the
    appellant had spoken of burning down the house to claim the
    insurance money. Hollingsworth said that he thought that the
    appellant "was only mucking around, only joking." There was also
    evidence by a man by the name of Wikblom who at one stage kept
    company with the appellant's daughter, that some twelve months
    before the fire the appellant had asked him whether he would
    burn the house down, but Wikblom "didn't know whether he was
    joking or not."
    2. The appellant owed substantial amounts of money to a bank in
    respect of the house, to a credit company in respect of his car
    and for rates and services.
    3. The house had previously been insured on two occasions with
    SGIC. The last policy had been cancelled for non-payment of
    premiums in March 1992. The appellant took out a new policy
    with CIC Pty Ltd seventeen days before the fire.
    4. In the period before the fire the appellant moved
    furniture and personal effects out of the house to his parents'
and step-daughter's houses. 5. The appellant gave evidence at the trial. He gave evidence that Hollingsworth had asked whether he could burn down the house and had described how he had set fire to a house in Preston Victoria. He said that he wished to burn the house to relieve his sister of the commitments and to enable her and the children to go to Melbourne. The appellant denied any conversation with Wikblom about burning down the house. He denied that he was responsible for burning the house. The appellant had told the police on the morning of the fire that he had left the house at about 8.00 pm and that his son-in-law Jeffrey McGrath, and Mark Pope had driven him to Tailem Bend. He had secured all of the doors and windows. 6. McGrath gave evidence that he picked the appellant up from the house at 7.00 to 7.30 pm and drove him to Tailem Bend arriving at about 8.30 to 8.40 pm. Mark Pope corroborated that. The appellant's father and mother both gave evidence. They said that he arrived at Tailem Bend in the evening and had not left the house before the telephone call which notified them of the fire. He then set off in his father's car to the scene of the fire. 7. At the conclusion of the case for the prosecution, counsel for the defence asked the judge to direct the prosecution to nominate the precise allegation against the appellant, namely whether he was alleged to have lit the fire, or to be a party to a joint enterprise or to be an accessory. The judge refused to do so and his ruling was challenged on the appeal. 8. As a general principal "it is the right of every accused person to know, with particularity, the case which the prosecutions wishes to prove at trial." King v The Queen (1986) 161 CLR 423 per Murphy J at 425. In a case such as the present, however, there is no obligation on the prosecution to specify the precise nature of the appellant's alleged complicity in the crime. The case rested entirely upon circumstantial evidence of a general nature which was said to lead to the inference that the appellant was a party to setting fire to the house. The prosecution could not know and therefore could not allege the precise nature of his participation. It was not required to allege or prove the precise nature of the participation. It was sufficient for it to prove by circumstantial evidence that the appellant either lit the fire alone or in collaboration with others, or procured some other person or persons to do so. The judge's ruling was correct. Mr Mayne, who appeared for the appellant, argued that the case against the appellant with respect to the charge of false pretences was fatally flawed by the failure of the prosecution to prove the insurance policy under which the appellant made his claim. The proposal for the insurance signed by the appellant was in evidence and there was evidence that the proposal had been accepted. There was no evidence as to whether a formal policy had been issued. The proposal described the type of insurance as "Home Cover Insurance". The amount insured for "buildings, including debris removal and professional fees" was $80,000 and the amount for contents was $6,000. 9. The claim form which the appellant signed and lodged on the morning of the fire claimed for articles lost or damaged and damage to the building. It stated fire to be the cause of the damage. 10. The particulars of the charge of attempted false pretences contained in the information are that "Ronald David Pope on the 3rd July 1992 at Murray Bridge with intent to defraud attempted to obtain from CIC Pty Ltd money in the amount of about $80,000 by falsely pretending that he was entitled to make a claim under an insurance policy." It seems to me that the claim form clearly amounted to an assertion that the appellant was entitled to make a claim under the policy. This was plainly not so if he had deliberately set fire to the house. I do not accept that the production of a formal policy was necessary to establish that. A claim that an insured is entitled to claim under the policy because the building has been destroyed by fire is patently false if the insured has himself set fire to the property. I think that the making of the representation in accordance with the particulars in the information, was sufficiently proved by the evidence which was adduced. The issue in the case as to this count was whether the representation was fraudulent. 11. It was a further ground of appeal that an accomplice direction ought to have been given with respect to the evidence of Hollingsworth, or that at least the jury should be cautioned to exercise care with respect to his evidence. The only evidence tending to indicate any involvement by Hollingsworth in the fire was the appellant's evidence that Hollingsworth asked whether he could set fire to the house. Hollingsworth said that he had offered to set fire to the house but that that was in jest. Hollingsworth went to Melbourne on the 24th June and there appears to be no suggestion at the trial that he returned to Murray Bridge prior to the fire. There was absolutely no evidence of any involvement by him in the fire. In those circumstances there was no evidence, in my opinion, upon which a jury could have supposed that Hollingsworth was or might have been responsible either alone or with others for setting fire to the house and there was no requirement on the part of the judge to caution the jury in respect of his evidence. 12. Mr Mayne complained about a failure by the trial judge to direct the jury as to the correct approach to the opinion evidence of an expert that the fire had been deliberately lit. The fact that the fire had been deliberately lit was not a live issue at the trial. There was no cross-examination of the expert witness challenging that opinion. The issue at the trial was not whether the fire had been deliberately lit but whether the accused was responsible for it. The evidence of the expert on this point was unchallenged and uncontroverted. I see no reason why the judge should have given any particular direction in respect to it. The expert was a police officer and he also gave evidence that he had inspected the premises and saw no positive signs of a break-in. That was not, however, a matter of expert evidence but rather of simple observation. 13. Having disposed of points argued on the appeal which, in my opinion, do not have substance, I turn now to two matters which were urged upon us by Mr Mayne and which have caused me serious misgivings. 14. The case depended entirely upon circumstantial evidence of a general character. I use the expression "general character" because the circumstantial evidence did not seek to link the appellant directly with the igniting of the building. It rather sought to establish a web of circumstances from which it was to be inferred that he must have been responsible for the fire. That being so, it was of prime importance that the jury's attention should have been directed to the precise issues, both legal and factual, which had to be resolved before there could be a verdict of guilty. 15. The crucial issue was whether it was proved that the appellant lit the fire, either alone or in collaboration with others, or had procured some other person or persons to do so. It was necessary that that issue be explained clearly to the jury. His Honor's direction was as follows:
    "The Crown outlined arson. That is simply a fairly
    straightforward explanation. It means, of course, a property
    being damaged by fire, but there are some ingredients other than
    that, that the Crown have to prove beyond reasonable doubt, and
    the first thing is, of course, that the accused, by his own
    voluntary act, or with others, damaged the property by fire.
    Now very much that is in issue here, of course, because what the
    Crown are saying that really he was a principal in this arson,
    that it was him that took some active steps to really instigate
    and there was some agreement with another or others to damage
    this property by fire." 16. I feel some considerable uneasiness as to whether this direction was sufficiently clear to bring home to the jury the essential issue which it had to resolve. 17. My uneasiness about the trial is intensified by consideration of the directions as to the circumstantial evidence. To secure a fair trial, having regard to the nature of the evidence, it was necessary, in my opinion, that the jury's attention be directed to the nature of the circumstantial evidence, its strengths and weaknesses, and as to any hypotheses other than guilt which require their consideration. I think that the summing up was deficient in this respect. 18. Circumstances proved in the case were capable of leading to an inference of guilt on the part of the appellant. On the other hand, the possibility that he was a victim of circumstances and coincidence had to be considered. The incriminating character of the circumstances relied upon required careful consideration and I think careful directions to the jury. 19. His Honor summarised the evidence of each of the witnesses. In at least two respects, however, I consider that he failed to raise with the jury issues which required their consideration as to apparently incriminating circumstances. He referred to the evidence of Hollingsworth and Wikblom as to the conversations about burning down the house. He did not refer to the evidence of both of them which cast doubt upon whether the appellant was serious. I think, moreover, that the jury would have been assisted by a reminder that sometimes people make foolish and flippant statements which may later take on an unfairly sinister flavour. His Honor also referred to the evidence of the removal of furniture and personal belongings from the house. I think that fairness to the defence required that that reference be accompanied by a reminder that the matrimonial home had broken up and the appellant was planning to leave for Melbourne early in July. The removal of belongings, in those circumstances, might not be as sinister an indication as it might otherwise have been. There was no reference to the issue as to whether the police officer's evidence was sufficient to exclude the possibility that an intruder might have gained access to this unoccupied house. 20. The learned trial judge directed the jury in a general way as to circumstantial evidence along the lines of Peacock v The King (1912) 13 CLR
619. He did not, however, relate that direction to the crucial factual issue in the case. What the jury really had to consider in this case was whether the hypothesis that some person, without the appellant's complicity or authority, gained entry to the house and set fire to it, was a reasonable hypothesis having regard to the evidence, and, as a corollary, whether the occurrence of the fire in the context of the taking out of the policy, the removal of the chattels and the making of the allegedly incriminating statements, may have been no more than coincidence. 21. Notwithstanding that the learned trial judge accurately summarised the evidence and gave the Peacock direction, I am left with a conviction that the summing up was not adequate to direct the jury's attention to the crucial issues in a way which would ensure a fair trial. Although the evidence would undoubtedly be sufficient to support a conviction following a full and adequate summing up, I do not think that it would be safe, having regard to the deficiencies in the summing up, to allow the convictions to stand. 22. In my opinion the appeal should be allowed, the conviction should be set aside and there should be a new trial on the information.

JUDGE2 MILLHOUSE J I agree that the appeal should be allowed and that there be a new trial. 2. I am happy to adopt the reasons of the Chief Justice for allowing the appeal except for what he regards as the failure of the learned trial judge to relate some of his directions in the summing up to the facts. 3. In my view the learned judge dealt adequately with the facts. Had he been a little clearer and more precise in his explanation of the law the jury would not have had difficulty in applying it to the evidence they had heard. The way in which, in a summing up, a judge goes about dealing with the facts is very much a personal matter, a matter of personal style. We all do it differently: there is no right way which we all must follow. 4. Members of juries are not children. They are as well able as we are to assess the facts and apply the law to them: as they are told, the facts are for them to decide and not for the judge. 5. Finally it is significant that at the end of the summing up neither counsel raised any point at all. If counsel were doing their job properly - there is no reason to suggest they were not - they would have been alert to take this point and they did not. They were there. They had experienced the atmosphere of the trial. They found nothing wrong with the summing up. Especially on matters of fact that is most significant. Sometimes (but not often) counsel may be forgiven for not picking up an error in a direction on law (after all, appeal courts may mull for long over a summing up before deciding there is an error): counsel should not miss an error of fact nor fail to see that the facts have not been related sufficiently to the law. A court of appeal should therefore be slow to allow an appeal for such a reason as the way in which a trial judge has gone about dealing with the facts.

JUDGE3 OLSSON J This is an appeal against the conviction of the appellant, by verdicts of a jury, of one count of arson and one count of attempted false pretences. 2. The notice raises various grounds of appeal. They complain of:
    . the failure of the trial judge to require the Crown to
    elect as to the basis upon which it sought to prosecute the
    count of arson, or, alternatively, to direct the provision
    of specific particulars as to the basis of that charge;
    . the failure of the trial judge to find no case to answer;
    . the failure of the trial judge to give a corroboration
    warning in respect of the Crown witness Hollingsworth;
    . an alleged misdirection, or inadequate direction, to the
    jury on the question of circumstantial evidence;
    . an alleged failure to give clear and adequate directions
    to the jury on the issue of criminal complicity arising on
    the Crown case;
    . a failure of the learned trial judge to give any
    direction as to the proper approach to expert evidence said
to have been led as portion of the Crown case. 3. I first attempt a summary of the salient facts revealed by the evidence. 4. In July 1992 the appellant and his wife Irene resided at premises located at 22 Florence Street, Murray Bridge. Those premises were owned jointly by the two of them. They were subject to a mortgage to the State Bank to secure repayment of a housing loan of almost $46,000. Payments in respect of the loan were substantially in arrear and the bank had issued a notice of demand in respect of it. 5. The accused and his wife were, at the time, in more general financial difficulty. They were in arrears of payments to ETSA, Telecom, the District Council of Murray Bridge (for rates), the Engineering and Water Supply Department (for water and sewerage rates) and Ford Credit Australia Ltd (for vehicle finance payments). The telephone at the house had been disconnected for non payment of accounts and the vehicle had been surrendered because of an inability to maintain contract payments. 6. Moreover, serious domestic problems had arisen between the appellant and his wife. She had, on 23 June 1992, told him that she proposed leaving. She did in fact leave the matrimonial home on 24 June and went to live in Melbourne with the witness Hollingsworth, who was her brother. At the point Hollingsworth had, for some time, been staying at the Florence Street house with the appellant and his wife on a more or less permanent basis. 7. That house had been insured with the CIC insurance company as from 15 June 1992. The cover was in the sum of $80,000 for the house and $40,000 for its contents. Significantly for present purposes, although the formal proposal was tendered in evidence, the policy itself was never proved. The jury therefore had no evidence before it as to either the detailed terms of the policy, or the risks covered by it. 8. The evidence before the Court was to the effect that, on 2 July 1992, both Mrs Pope and Hollingsworth were in Melbourne. That evidence was not challenged. Equally, credible evidence was given on behalf of the appellant to the effect that, at about 7.30 pm on 1 July 1992, the appellant's son and son-in-law drove the appellant to Tailem Bend to his parents' home. Both parents deposed to the fact that the appellant remained at their home until a telephone call was received between 4 and 4.30 am on the morning of 2 July 1992 to the effect that the Florence Street house had burnt down. The appellant's father woke him up, told him of the message and lent him a car to go to Murray Bridge. 9. Although the Crown Prosecutor originally opened the case on the basis that the accused either lit the fire himself or, alternatively, organised the lighting of it, he was constrained, in the course of his final address, virtually to concede that the appellant's alibi was such that the Crown case had to rest on the latter scenario. It must be said that, in view of the overwhelming evidence concerning the alibi, he had little alternative but to make that concession. 10. Evidence was led by the Crown to establish that, shortly prior to 3.30 am on 2 July 1992, persons living in the near vicinity of the Florence Street house were awakened by the sound of breaking glass. On investigation it appeared that the house was on fire. The police were advised. 11. A police patrol arrived shortly after 3.38 am, at which time the house was well alight and growing in intensity. An attempt was made to ascertain whether the house was occupied, but, so far as could be ascertained, no one was present. 12. The fire brigade arrived at 3.45 am, but it took until 4.58 am to contain the fire. A large amount of damage had been occasioned to it, which the Senior Station Officer estimated was of the order of $95,000. The reaction of the fire to the activities of the fire officers was suggestive of some accelerant being involved. The fire kept re-igniting in some areas after it had been extinguished. 13. A police technical services officer, with expertise in fire investigation, attended at the scene following the fire, although it was not made clear as to precisely when he did so. 14. This witness described his observations of the condition of the house in some detail. He did not observe any signs of forced entry beyond known damage deliberately occasioned by the police and fire officers to gain entry to the house. That evidence was, however, somewhat equivocal in view of the general damage and the activities of those officers. Logically, little could be spelt out of it. In any event it was not evidence of expert opinion, but merely evidence of a negative nature, bearing on objective observations. 15. This witness did express an expert opinion (consistent with the evidence of several of the fire officers) to the effect that an accelerant had been used in the fire, both because of objective signs noted within the building and also having regard to certain reported observations made by fire officers at the time of the fire. 16. During the course of the trial the Crown led evidence on several specific topics. 17. First, it established the fact that the appellant advised CIC of the fire early on the morning of 2 July 1992 and signed and lodged a claim under the relevant insurance policy the next day. The Crown sought to spell something sinister out of that fact, although it must be borne in mind that it is to be assumed that, under normal policies, there is a legal, contractual obligation to make prompt notification of potential claims and the events giving rise to them. 18. Second, evidence was led to the effect that, in the period immediately leading up to the fire, the appellant had caused substantial quantities of its contents to be removed from the house. Some of these were taken to his parents' house at Tailem Bend and others to his two step-daughter's houses in Murray Bridge. He had also sold some items. Once again the Crown sought to attribute sinister connotations to those events, but, as the evidence ultimately revealed, they had to be seen in the context that, consequent upon the separation of the appellant and his wife, he had, prior to the fire, made plans to quit the Florence Street house and initially live with his parents, prior to going to Mildura - where he in fact went to live with his son and daughter. 19. Third, evidence was led to establish that, at various times prior to the fire, the accused had spoken to others about burning the house down. His wife and her brother were both called. Hollingsworth said that, on one occasion prior to the date when he and his sister left, he (Hollingsworth) offered to burn the house down so that the insurance could be collected, but that this was only intended by him as a joke. This followed what, he said, was a request from the appellant to him to do so. The appellant's wife deposed that, when she told the appellant that she was leaving, his reaction was that he wished her to stay for another fortnight - that she was ruining his plans, in that Hollingsworth and he had planned to burn the house down on the following Friday. Hollingsworth denied any involvement in the fire. 20. In giving oral evidence on oath the appellant denied any involvement in the fire or knowledge of who may have lit it. 21. Against that evidentiary background I now turn to the major issues raised on the appeal. Having regard to the conclusion to which I have come, it is unnecessary to address all of them. 22. It is stating the obvious to say that the Crown case was entirely circumstantial; and that there were a number of aspects of the prima facie Crown case which, when all of the evidence was in, either did not withstand close scrutiny, or, at least, were considerably weakened by an objective appraisal of the whole of the evidence. 23. In the circumstances it behoved the learned trial judge to give a clear, full exposition of the correct approach to the assessment and use of circumstantial evidence and, in so doing, relate that exposition to the specific factual issues arising on the evidence (Peacock v The King (1911) 13 CLR 619, Shepherd v The Queen (1990) 170 CLR 573. The reasoning of King CJ in R v Shinner (Court of Criminal Appeal, 25 November 1993, unreported), albeit in relation to the topic of intoxication, is no less apposite to circumstantial evidence). 24. Moreover, such a process was, in any event, essential in this matter as part and parcel of the obligation of the learned trial judge adequately to put the defence case to the jury. (See authorities adverted to in R v Phan (1990) 54 SASR 561) at 576-577). 25. With all due respect to the learned trial judge his exposition of the correct approach to the assessment of circumstantial evidence was as confusing as it was brief. Further, it made no pretence of adequately linking the relevant principles to the facts established by the evidence. In failing to do so the learned trial judge also failed adequately to outline to the jury the essential basis of the defence case - nor did he do so elsewhere in the summing up. 26. These problems were, in my opinion, compounded by a failure of the summing up not only to explain the real thrust of the Crown case, in terms of the legal concept of complicity, but, more importantly, to summarise the factual strengths and weaknesses of the Crown case as it finally emerged on the evidence at the end of the day. 27. It was particularly important to make reference to topics such as:-

    . the limited value of the negative nature of the evidence
    of the Crown expert witness that he found no evidence of
    forced entry;
    . the fact that the appellant was not at the scene of the
    fire and was said to have appeared shocked when told of it;
    and the consequential requirement that the Crown needed to
    make out a truly compelling case that he did arrange for
    someone else to light it - that mere suspicion was simply
    not enough;
    . the significance of the clear rebuttal of some
    potentially sinister indicia, or at least the existence of
    reasonable explanations in relation to them which were
    consistent with innocence;
    . the need to give serious consideration to the possibility
    of coincidence in relation to the time of effecting the
    insurance policy and the moving of furniture consequent to
    the break up of the marriage;
    . the need to consider whether the statements related to
    the burning down of the house were or were not made in a
    jocular setting - whether they could simply have been stupid
    remarks which came back to haunt the appellant ie whether
    the appellant was no more than a victim of circumstances.
    It is stating the obvious to say that it was vital, in any
    balanced summing up in a case such as this, to relate issues
    of the type identified to the concept of whether or not the
    Crown had conclusively negatived the existence of all
    hypotheses consistent with innocence. The summing up fell
    far short of doing so. 28. Finally, it seems to me that, in all of the relevant circumstances, it was clearly incumbent on the learned trial judge to express some warning as to the need to approach the evidence of Hollingsworth with caution, having regard both to what must have an obvious desire - or at least temptation - to distance himself from any involvement in arson; and the possibility that, bearing in mind the estrangement between his sister and the appellant, he may have had motives for falsehood. 29. It only remains to make the point, apropos the count of attempted false pretences, that the Crown allegation was that, with intent to defraud, the appellant attempted to obtain money from CIC "by falsely pretending that he was entitled to make a claim" under the relevant insurance policy. 30. On any view there was no case to answer as to that charge. By failing to prove the actual policy of insurance the Crown simply failed to prove its terms and that, in the circumstances, the appellant was not entitled to make the claim 9 lodged by him. In a criminal trial it is not enough merely to invite the jury to speculate as to the terms of the policy and to infer that, even if he was party to arson, he was not entitled to make the claim that he did. 31. Be that as it may, I consider that, by virtue of the patent deficiencies in the summing up, to which I have referred, the trial of the appellant manifestly miscarried. 32. I would allow the appeal, quash the verdicts as to both counts and remand the appellant for retrial in relation to them.