The Queen v Gaunt

[2001] QCA 257

[2001] QCA 257

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 382 of 2000

THE QUEEN

v.

PETER STUART GAUNT  (Appellant)

BRISBANE

..DATE 29/06/2001

JUDGMENT

DAVIES JA:   The appellant was convicted of arson after a trial in the District Court on 14 December last.  On the same day he was sentenced to four years imprisonment for that offence.  Also on that day he was sentenced on three other counts to which he had pleaded guilty.  He had pleaded guilty in the absence of the jury on a count that between 29 September 1998 and 13 January 2000 at Maroochydore he dishonestly applied to his own use property of Robert Samuel Marshall to the value of over $15,000.

That offence involved selling on consignment a motorcycle but not accounting to the owner for the proceeds of sale.  Before the jury on the first day of his trial on the arson count he also pleaded guilty to two other counts, one of dishonestly applying the property of Robert Lewis Parry with a yield of greater than $5000, namely $5,500 and one of attempted fraud of GIO General Insurance in the same amount.

These offences involved on the plea of guilty of dishonestly appropriating the proceeds of sale of another motorcycle owned by Mr Parry and attempting to claim against the insurer that it was lost in the fire, the subject of the arson count.  Mr Devereaux says that so far as the prosecution were concerned, they were relying also in the second count upon a more general fraud in the sense of making a claim at all in the circumstances in which he was involved in lighting the fire.  But that was plainly the basis upon which the plea of guilty was made and the basis upon which the evidence in respect of this matter was put before the jury.

On each of these charges, that is the one involving Parry and the attempted fraud on the insurer and the one in which he pleaded guilty in the absence of the jury, he was sentenced to two years imprisonment concurrent with each other and with a sentence of four years imprisonment imposed for the arson.

The appellant appeals against his conviction on the arson count and seeks leave to appeal against his sentence on that count.  However, we were advised that the sentence application is only in the event that he succeeds in his appeal against the conviction on the arson count.  The appellant, through a private company Risen Riders Pty Ltd operated a business called Suncity Motorcycles from rented premises at Kayleigh Drive, Maroochydore.

The business was apparently one of buying, selling and repairing motorcycles.  The premises apparently consisted of a substantial shed.  At about 3.06 a.m. on Monday, 23 August 1999 the burglar alarm at the premises was set off.  The security firm which monitored it notified the police at 3.10 a.m. and Constable Lutz who answered the call to go to the premises arrived there at 3.17 a.m. to find them already on fire.

He observed that the premises had two front doors; a sliding glass door with a metal screen door in front of it and a roller door.  Both were closed but the screen door did not appear locked.  It seemed to have a padlock missing.  He then went to the rear of the building where he discovered that the rear door was open.  On the path outside that door, not far from it, was a set of keys one of which was still in a padlock.

There were also in that vicinity two cigarette lighters, one orange and one blue.  It was plain to Constable Lutz and other later observers that there had been no forced entry to the premises.  Later inspections revealed that the fuse box in the premises was internal and apparently undamaged and that accelerant, probably petrol, had been used to start the fire.

In summary, the evidence demonstrated beyond reasonable doubt in my opinion that the fire had been deliberately lit by someone who had obtained access to the building either by use of the keys found on the path or by entering through an unlocked door.  It was a reasonable inference that he or she had obtained access by means of the keys and had departed in some haste, leaving doors unlocked and the lock, the keys and the cigarette lighters on the path.  The sole question in this case was whether the appellant had lit or procured someone else to light the fire. 

The case against the appellant was entirely circumstantial.  In the first place there was evidence from which it might be inferred that contrary to his explanation to police he was not at home during some part of the night of the fire.  Secondly, there was evidence that he was in serious financial difficulties which resulted in his inability to pay Mr Parry the money he had received from the sale of his motorcycle, the subject of the counts to which he pleaded guilty in front of the jury.

Thirdly, there was evidence of an attempt to defraud the insurer.  Fourthly, there was evidence that the keys and lock found on the path were his and that from this and the unlocked doors it could be inferred that it was he who had made the hurried departure upon or only shortly before the arrival of Constable Lutz.

And fifthly, there was evidence of lies to police in order to conceal relevant but incriminating facts.  The appellant did not give or call evidence.

The appeal against conviction as argued was on three grounds.  Originally only one ground was included in the notice of appeal, that was that the verdict was unsafe and unsatisfactory.  That ground was abandoned.  However, with leave, the appellant substituted the following further grounds.  

1.The learned trial judge failed to warn the jury against reasoning that because the appellant had committed the offence described in count 1 of indictment 435 of 2000 he was the type of person who would commit the offence of arson described in count 2 of that indictment.

2.The trial miscarried because irrelevant and highly prejudicial evidence was led before the jury from the witness Bernadette Rose Taylor.

3.The learned trial judge failed to put fairly to the jury the defence case.

It is convenient to deal with those grounds in that order.  In order to explain the first of those grounds I should say something about the evidence of Mr Parry which went to both counts 1 and 3, that is the counts of dishonestly applying Mr Parry's property and the count of attempting to defraud GIO General.

It was also plainly relevant to the arson problem because it was plainly relevant to a motive.  There are really two motives to which it was relevant.  One was to conceal from Parry the fact that the appellant had sold his motorcycle and misappropriated the proceeds by pretending them being lost in the fire.  The other was to make an insurance claim in respect of the non-existent motorcycle.

This can be demonstrated from a short summary of Mr Parry's evidence and I will summarise the summary which Mr Devereaux gave us in his outline.  He said that he gave his motorcycle to the appellant to sell on consignment for $6500, the appellant to be paid by way of commission.  He was in the habit while the motorcycle remained in the appellant's possession of attending at the appellant's premises regularly to clean it.

Sometime prior to the fire, however, the appellant told him there was no need to continue to do so and he did not.  The appellant also told him that he had a purchaser for the bike who was waiting for money to come from a will.  There were then a number of delays from which it could be inferred he was being put off by the appellant but after those delays he was told that the buyer was ready to complete the sale.

He was led to believe that this would be completed and that he would receive his money on Friday, 13 August and then again he was led to believe that this would occur on Friday, 20 August, a couple of days before the fire.  It seems plain enough that by then the appellant had, in fact, sold the motorcycle and misappropriated the proceeds.  After the fire he told Mr Parry's partner that the motorcycle had been in the fire, which was plainly untrue.

He later told Parry that he had no idea where the motorcycle was but invited Parry to "go in cahoots with him ... in the insurance side of it," by which he plainly meant collaborate in a fraud on the insurer.  He made a similar approach to Parry a week later.  The appellant included the motorcycle in the property in respect of which he claimed against the insurer.

With that background it is convenient to turn to the first of those grounds upon which Mr Devereaux, for the appellant, relied.

No propensity direction was sought on the appellant's behalf, either before commencement of the summing-up by the learned trial Judge, or by way of re-direction, nor do I think that one was necessary.

If the jury had not used Mr Parry's evidence in the way I have indicated, which was a perfectly obvious way to use it, it was in the highest unlikely that they would have used it merely to show propensity.  That would have been a fanciful conclusion, and it was plainly relevant in that much more direct way in which I have indicated.

In my view, therefore, it was unnecessary to give any propensity direction.

I turn then to the second of those grounds which was that the trial miscarried because some evidence from the appellant's wife was led before the jury.  But when that evidence is examined it shows, together with other evidence, the increasingly desperate financial situation in which the appellant had put himself by becoming involved in a Nigerian loans scheme.  It was plainly relevant and prejudicial in my view only to the extent that it showed that situation.  No application was made to exclude that evidence, and no direction was sought in respect of it.

The final ground then was that the learned trial Judge failed to put fairly to the jury, the defence case.  Mr Devereaux pointed out, in the course of his able submissions, that there were some matters, perhaps in the appellant's favour which his Honour did not specifically mention in his address to the jury. 

But more generally it is difficult to know what more the trial Judge could have told the jury by way of explaining the appellant's defence.

The appellant seems simply to have put the prosecution to proof and his counsel appears to have urged the jury, from what his Honour said, to accept the possibility that there were other hypotheses or inferences open which would leave them in a state of reasonable doubt.

Mr Devereaux, very fairly, conceded that he found himself unable to suggest any such hypotheses.  Moreover both addresses and his Honour's summing-up were all completed between 10.43 and 1 o'clock on the third day of the trial.  His Honour might quite reasonably have thought there was nothing useful he could add, apart from this, to what the appellant's counsel had said on his behalf.  Again, no
re-direction was sought in respect of this matter, and I think there is no substance in that ground.

In those circumstances the appeal against conviction should be dismissed and in those circumstances I would also refuse the application for leave to appeal against sentence.

McPHERSON JA:  I agree.  This is not a case of propensity evidence.  The appellant had not merely a propensity to defraud this particular insurer, he actually set out to do so and, by his plea of guilty, formally confessed that he had done so. 

The only question then was whether his admitted intent to defraud went further and was capable of being regarded as an item of evidence tending to show that he also intended to defraud the insurer by burning down his warehouse and claiming insurance money in respect of it.  For that purpose the jury were fully entitled to consider the admitted intent to defraud that he had already pleaded to.  They were well aware that the offence with which he remained to be charged and tried was the offence of arson, in effect, committed also with that intent.

Proof of that intent increased the probability that he had burnt down the warehouse and therefore made it admissible and more likely that he was guilty of that remaining offence. 

In my view there was no need for the Judge to explain that in any detail to the jury, or at all, and I can see no error in the summing-up in that or in the other respects with which Justice Davies has dealt.

I also would dismiss the appeal and the application for leave to appeal against sentence.

WILLIAMS JA:  I agree.

DAVIES JA:  The orders are as I have indicated.

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