The Queen v Walker

[1987] TASSC 38

TASSC A31/1987

CITATION:               The Queen v Walker [1987] TASSC 38; A31/1987

PARTIES:  THE QUEEN
  v
  WALKER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  
FILE NO/S:  C253/1986
DELIVERED ON:  22 June 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Neasey J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  
             Respondent:  
Solicitors:
             Applicant:  
             Respondent:  

Judgment Number:  TASSC A31/1987
Number of paragraphs:  26

Serial No A31/1987
  File No C253/1986

THE QUEEN v WALKER

REASONS FOR JUDGMENT  NEASEY J
  22 June 1987

1. Mrs Pauline Kaye Walker was charged on indictment with having instigated commission of the crime of arson, contrary to ss3 and 268 of the Criminal Code. She was tried in the Criminal Court at Launceston in May 1987, and was acquitted by the jury. She now applies for costs, pursuant to the Costs in Criminal Cases Act 1976. I refer to introductory observations which I made in The Queen v Powell, unreported, TASSC 31/1985, about this Act and the power given under s4 thereof to award costs to persons who have been charged with an offence and have been acquitted or discharged, or in respect of whom the complaint has been dismissed or withdrawn. I need not repeat those observations The court is required by s4(2) to have regard to all relevant circumstances, and in particular to certain specified circumstances.

1. A brief summary of the facts of the case is as follows The particulars of the charge were that the applicant in August 1986 instigated one Shane Rawlinson to commit the crime of unlawfully setting fire to a shop situated at Rossarden in Tasmania, and that having been so instigated, Rawlinson did set fire to that building in the early hours of 30 August 1986.

1. The building in question was owned by a company called Clerestory Pty Ltd, which owns a number of properties throughout Tasmania on a trustee basis for various specific clients The particular property was apparently an old tin–roofed house or set of rooms used as a "Four–Square" store, with some accommodation rooms attached. The applicant, Mrs Walker, and her husband had been the lessees of the store for about two years and four months at the time of the fire, and they had built up a successful business there. However, Mr Walker some five months earlier had ceased living at Rossarden and had returned to live at Launceston, where the couple owned other property, and had resumed work as a security guard at industrial premises at George Town. Mrs Walker was anxious to return to live at Launceston with her husband and children as soon as they were able to dispose of their businesses at Rossarden.

1. The Walkers were interested in other property at Rossarden beside the store which was burnt down. They owned a service station and roadhouse premises a short distance away, and also owned in the same general area an old house which they rented out. Other premises owned or occupied by the Walkers elsewhere included a take–away shop at Exeter, three flats and a shop at Invermay, a house at Invermay, a florist's shop and a coffee shop in Hobart Road at Launceston. Mrs Walker gave evidence that the combined value of their assets was in the vicinity of $434,000, in relation to which they owed on mortgages and other securities, an amount of approximately $290,000. The business person of the Walker family obviously was the applicant who appeared on the evidence to be a woman of considerable energy and business ability. She is also the mother of five children, including three from a previous marriage and a boy and a girl aged 11 and 12 years respectively who are children of her present marriage.

1. The evidence called against the applicant fell into three parts First, the 17 year old youth, Shane Rawlinson, ordinarily a resident of Rossarden but then serving a goal sentence of 2½ years for arson in respect of this store, gave evidence that he did in fact burn it down on Saturday 30 August 1986. It was common ground that several other buildings in the Rossarden town area had been burnt down by unknown persons in the six months or so prior to this fire. Rawlinson gave evidence of having had certain conversations with the applicant during the week before the fire. He said that while they were in the store, with no–one else present, they had discussed the other fires, and the applicant had said to him that the store itself "would be the next one to go". He asked the applicant in effect how much she would pay him to burn it down, but she had not then answered. On the next day, the Wednesday before the Saturday fire, they had a further discussion in the store, when the applicant offered him $1,000 to burn the premises On the Friday they had further conversation, during which the applicant said the store would have to be burns by the Saturday, because it was the last day on which she could get the insurance from the fire. He then in fact lit the fire on the following Saturday.

1. In her own evidence, the applicant Mrs Walker admitted in examination–in–chief having had what can only be described as extremely foolish and dangerous conversations with Rawlinson and another youth about criminal activities they had engaged in, and that she had actually raised the subject of the possibility of the store being burnt down some day, but had warned them never to do such a thing. Rawlinson was cross–examined about this, and he agreed that the conversation may have been along those lines, but he said that he understood that Mrs Walker was offering him money to burn the property down. He said that after the fire he telephoned the applicant and asked her for his money, and that she told him that someone would come up to see him about it soon. Rawlinson can only be described as an extremely unsatisfactory witness, and his evidence wholly unsafe to be relied upon as a basis for convicting any person.

1. Second, a young man who resides at Rossarden, called Craig Brown, was called to say that he had overheard a phone conversation in which Shane Rawlinson had spoken to a woman whose voice he recognised as the applicant's and had heard Rawlinson ask her "when he was getting paid". Brown also was not a very satisfactory witness, but the jury might have believed him, and if they did, his evidence supported Rawlinson's account that he had understood that he was being offered money by the applicant to burn the premises down.

1. Third, and principal evidence against the accused, was the evidence of the two investigating police officers, Detective Sergeant Michael Brazendale, and Detective First Class Constable Bert Hinds Sergeant Brazendale said that after the fire at Rossarden he had taken statements from a number of people, including the applicant. In that statement, the applicant gave details about the property and her lease from Clerestory Pty Ltd She had said that on 1 July 1986 she and her husband had negotiated to sell the business to Mr and Mrs Hyde of Launceston for the price of $120,000, walk in walk out. This price also included the other two properties which the Walkers owned in Rossarden. The Hydes were to take over the business of the road house and service station on 29 August 1986 and were taking over the store as on Sunday 31 August 1986. She said that the plant and equipment in the store were insured for $20,000 and the stock for $45,000, but the dwelling and contents were not insured. She further said that there would have been approximately $30,000 worth or stock in the store on the previous night (which was the night of the fire). Her statement went on to detail the contents of the property and describe various of the rooms, the electric wiring, appliances, security alarm, plant, and so forth.

1. The statement further set out that the arrangements with the Hydes were that they would pay $5,000 for the stock and the balance of the $120,000 by payments of $250 per week until they could arrange finance to pay off the balance. The Walkers had left their money in the properties until the Hydes could pay them out. As at the date of the fire a written agreement, although in the course of preparation by solicitors, had not been completed. The statement concluded by saying that the turnover of the store in the previous year was $270,000 and that the Walkers' profit was about 22% of that gross amount. None of these facts as stated by Mrs Walker to the police was shown to be other than true.

1. Sergeant Brazendale said that the abovementioned statement was taken by him on Saturday 30 August 1986, which would have been within a few hours of the fire having been lit in the early hours of that morning. He then said that he in company with Detective Hinds had a further conversation with the applicant at the Launceston Police Station on 23 September 1986. He said to her that the police had made enquiries about the fire and he would like to ask her some further questions, and he warned her. He said, "From the enquiries made we believe that you offered to pay Shane Rawlinson to burn down your shop to enable you to collect the insurance". The applicant said, "Has he confessed to that?" Brazendale said to her, "He has presently been spoken to by other detectives although I have been told I believe that you did in fact offer Rawlinson this amount of money". The applicant said, "Things have just got out of hand", and then she became upset and started to sob. He said to her, "Did you in fact offer Rawlinson some money to burn down your Four–Square store and post office at Rossarden?" Mrs Walker said, "Yes I knew it would come to this". He said to her, "What do you mean by that?" She said, "I don't want Mike (her husband) involved, he had nothing to do with it. I made the arrangements to have it burnt. I don't want you to think that Mike would be in anything like that." Brazendale said that he then invited the applicant to take part in a record or interview, and explained to her what would be involved, but she said, "Bill (her solicitor, Mr Zeeman) has told me that I do not have to make any statements to the police and I don't have to sign anything, I don't think I'd better", and she then said, "I should never have done it, this will ruin us". Sergeant Brazendale told the applicant that she would be charged with arson, and she was so charged. Detective Hinds gave confirmatory evidence as to the making of these admissions

1. Thus, the Crown case against the applicant consisted of evidence of alleged oral admissions made to the two police officers, amounting to a confession if accepted, but which the applicant had declined to acknowledge in writing; together with evidence from the admitted arsonist that he had been offered money by the applicant to burn the premises, and some supporting evidence by Brown which the jury might have believed, and which was significant if accepted, to the extent that it showed that after the fire Rawlinson had asked the applicant when he was going to get his money. Brown's evidence was capable of being accepted by the jury as corroboration of Rawlinson, since it was consistent with Rawlinson's evidence that he was expecting payment from the applicant for setting the fire. Without the police evidence of admissions, however, I would have thought that the Crown case would have been extremely weak, because in order to convict the jury would have to have accepted Rawlinson's interpretation of his conversations with the applicant, in accordance with his own account, and notwithstanding his equivocations in cross–examination about whether the applicant had in fact warned him not to harm the premises.

1. However, when to that is added the evidence of the police officers that the applicant had orally made what amounted to a complete confession to having instigated the fire, then acceptance of the prosecution case to the extent of convicting would have depended mainly upon whether the jury were sufficiently prepared to accept the reliability of the evidence of the police officers to the extent of being satisfied beyond reasonable doubt of its truth. Herein lay the crux of the Crown case. Conviction of the accused depended, or should have depended to any rational jury, in my view, upon whether they were sufficiently confident of their ability to make a subjective judgment about the truth or otherwise of the police evidence, so as to convict the applicant of a serious crime upon the basis of it.

1. Upon that assessment of the Crown case, I come then to consider the principal basis of criticism of the investigatory process carried out by the two officers, which is the foundation of this application for costs The applicant in her sworn evidence denied having made any admissions to the police, but she also said that (amongst a large volume of her evidence to which there is no space here to refer) she went to see Messrs Brazendale and Hinds in their office on 14 October and told them about a conversation she had just had with a resident of Rossarden named Geoff Nicholls, which concerned the fire, and she told those police officers that she considered there was a conspiracy against her amongst certain residents of Rossarden, which was designed to involve her in guilt for the burning down of the shop. Her evidence then proceeded as follows:

"Did you tell them about financial matters relating to the shop? ... Actually they brought that up with me, they said now right because I said I had nothing to gain out of it and he said but Mrs Walker he said now you were selling the business for $120,000 he said now you're getting $50,000 insurance so that means you're getting $140,000 for the business I said No I am not we've now sold, and dropped the price to $90,000. I said that $50,000 insurance comes into that $90,000 it has been spent to get the business back up for the Hydes And I couldn't make him see he hounded on this he said no you're making an extra $20,000. I said no anybody with any nounce about it would see, I said can't you see where that becomes into that $90.000 he insisted.

Right. Well when you had finished talking to the police did you then get in touch with someone else?... I did.

And who did you try and ring? ... I tried to ring after –

After you had spoken to the Police who did you get in touch with? ... I got in touch with you.

Right and when you rang up who did you speak to?... You.

Right and you – I don't want you to say what was said because you can't, but did you – what did you say? ... I just told you that they wasn't interested in anything I had to say, that they hounded on this $140,000 business.

Right, did you ask any questions about your rights?... No.

Were you told to do anything? ... I was told to go home and write down everything, dates, conversations the lot. Which I did.

Well – did you get a phone call the next night?... I did.

And who was that from? ... Shane Rawlinson.

Can I just go back one minute, did you speak to Mr Zeeman at all on the Monday? ... No not at all.

Did you speak to Mr Zeeman at all at any time – no I will withdraw the question. And I will come to it afterwards It is out of sequence. Right the Monday the phone rang. ... Right it was half past seven on the Monday night. Cause we wrote down the time when he rang. It was half past seven, Mike answered the phone, and he said 'It's Shane' to me he asked him who it was and then Mike said to me it's Shane and he want you, and I said Shane who. And he shrugged his shoulders and as soon as I heard his voice I knew who it was.

Well what did he say to you? He just said the d's were looking for him and I said oh are they Shane why.

And what did you then say? ... And I said to him where was he. I said where are you and he said in Hobart. I said you are not at Rossarden and he said no I am in Hobart.

Right did you then ask him something else? ... Yeah I said what's the matter Shane what can I do for you. And he said money. And all I said to him was has Geoff Nicholls got anything to do with this and he said he knows about it. And I said Shane this matter will be dealt with fully later and he said what do you mean by that. I said just what I am saying it will be dealt with fully later. And hung up.

Right. Well then did you ring someone the next day?... Yes, the next – that was the night that Mike – after that conversation –

You can't at this stage go into what you said to Mike afterwards right? ... I rang Craig Brown early next morning and asked him if Shane was at Rossarden. And he said he didn't know.

And did you tell Shane Brown – Shane Rawlinson sorry? ...  Craig Brown.

Did you tell Craig Brown what Shane had said? … Yeah. I told him he told me he was in Hobart and that he'd rang up asking for money and I said, Craig are you prepared to tell the police I said what you told Mike and I and he said I don't want to be awful but I don't want to get involved. And then he went on about the D's had been up there looking for him and he said did you tell the police anything about me and I said Craig you asked me to keep your name out of it and I said I have not mentioned you to them.

Right. Alright now the next day did you ring someone again? This is the 18th? ... Yes

Who did you ring on the 18th? ... I rang Jack Johnstone that same day I rang Craig.

Yes, and who's Jack Johnston? ... When I hung the phone up from Craig, I rang Jack Johnston or rang the police station again, I wanted Mr Brazendale or Mr Hinds and they weren't available and Jack Johnston answered the phone, he's a policeman.

And you knew him? ... I knew him, yeah.

Did you give a message to Mr Johnston?    I said to him I told him that information had been led to us that Shane Rawlinson had thrown a garbage bin full of papers under the back of the shop and lit it. I said to him whether it be right or whether it be wrong I considered it was time that they started looking into it further. It seemed as if he was involved and he said, 'It seems so.' I said, 'Be sure to give them the message.'

Right and did you then ring somebody else? ... I rang you.

And what were you told then? ... I was told to – again make notes and so forth of all the conversations.

Right. And the next thing that happened in relation to the fire was the morning of Tuesday the 23rd? ... Yeah.

Where were you ? ... I was in my Florist shop.

Had you see any solicitor the day before? ... I saw Mr Zeeman the day before. Mike and I went and seen him.

Yes now. You can't relate the conversations – ? ... No.

At this stage, but what did you go to see him about? .... About the contract for the Hydes because it had all been changed – the contracts had all been changed and there had been a bit of a delay in them.

Right. Did you ever ask Mr Zeeman for advice about what your rights were? ...  No, I didn't think I needed any. I needed no rights – why would I.

Had you ever asked me? ... No.

Well on Tuesday the 23rd, you were where?... At the Florist Shop at Kings Meadows

And who arrived? ... Brazendale and Hinds

And what happened? ... I was on the phone when they walked in and they were talking to my daughter for a few minutes and when I came off the phone I asked them what could I do for them, I said 'what can I do for you guys?'. And the guy who I now know as Brazendale I didn't know his name actually, I got them mixed up I thought one was the other one, and he said to me he said 'you've left a few messages for me'. I said 'no one'. I said 'I phoned and Jack Johnston answered the phone and I said I left a message with him for you' and he said 'I must have got me messages mixed up'. And he said 'can we talk to you for a few minutes' and I said 'yes sure' end I picked up my smokes, I said 'I will take me smokes with me because I knew it would be outside away from my daughter and I picked up my smokes and we were sort of talking about the artificial plants and stuff as we went through and when we got to the door we were talking about the orchids and he said to me we could be a few minutes He said – no he said it could take a little while, and I had an appointment with Statewide at 10 o'clock so I said well look I'll take my bag with me and I said to Louise when I finish with them I'll hop in the car and go straight up I won't come back inside because every time I do I get delayed in there with something or other.

'Right you went outside? ... Went outside.

And did Brazendale do something? ... We walked across to the car and they opened the car door and I sat in the back which is where I thought we were going to stay and the minute that they got into the car they drove off.

Right, and there was some conversation in the way in the car? Yeah, there was just idle chat sort of on the way through that they –

Did any – sorry you please tell us? ... They asked me – I said to them can I have a smoke 'cause I always ask for a smoke in somebody else's car and he said, yes, he said, but he said you're not supposed to be with this emphysema and I said, yes, I know, I said, but after everything that's happened and setting up the shop and all I said I've taken it back on again.

Did you – was anything said about – I'm not going to ask the whole of the conversation, there's two aspects of the conversation I want to ask you about, was anything said about your husband and was anything said about Mr Zeeman? ... He asked me what Mike was doing and I said he's on night shift at the moment I said he's home in bed and I said we were only at Mr Zeeman's yesterday and I was still upset about the loss of the shop and everything and I was crying with him, and I said I had a friend going to the Gold Coast the next day and she'd asked me to go with her and Mr Zeeman said it was the best thing that I could do at the moment that it may pick me up a bit again, if I went for a holiday.

And as you progressed towards town where did you think you were going? ... Well I knew when they were heading back down town that they were going to the police station it was the only place they could be taking –

What did you think they were going to talk to you about there? ... I never thought anything about it. I just thought well they must want me to make a statement in regard to Geoff Nicholls that something had come up with him.

And when you got to the Police Station would you tell the Jury what happened, you went up some stairs and you went to an office, what happened when you got to the office? ... Well they walked in front of me and I followed them in and as – when we got inside Mr Brazendale took his coat off and he hung it on the chair behind his desk and as he did so he put his hand underneath his desk, and this stood out with me, and I thought they've got a tape under there because that is exactly the same thing he did when I went to see them before about Geoff Nicholls.

Right. And what happened then with Brazendale?... Brazendale leaned against the desk his desk and Mr Hinds was sitting behind his desk over there and I was sitting here on the chair.

And then who said what and how, tell the Jury just what happened in that office? ...  Mr Hinds – Mr Hinds looked at me and he said 'we're now we're now, we're now sure that you had something to do with this fire, after our investigation you have got something to do with the fire at Rossarden'. And I told him it was a load of rubbish, that I hadn't. He said 'Mrs Walker he said you have'. I said 'I have not'. And he said to me –

Just take your time. ... He said I'd gone up there two years ago and planned to do it, he said you went to Rossarden and planned to do this I said 'I went to Rossarden because I fell in love with the place, we'd been all over Tassie and it was another challenge.' I said, 'Look if you are going to talk like this I want Mike and Mr Zeeman here.' And he said –

Just take your time? ... I am sorry.

You are right? ... And he said, 'We are not here to hurt you.' He said, he said, 'We are not here to hurt you, we are only here to help you – why don't you come clean and tell us all about it.' I said, 'I have got nothing to tell you, will you please get my Mike and Mr Zeeman.' And that is when Mr Brazendale asked me the phone number and I told him that we had it changed to a silent phone number because after the phone call from Shane we had it changed but it had only been done a couple of days before. And he left the room and he was gone no more than a couple of minutes and he came back in. And I said to him, 'Did you phone Mike – you haven't had time to phone him.' And he said 'My superior is phoning him.' And I said, 'Just as long as you have rang him.' And then they started again about the fact that – he said, 'Your business at Rossarden' – he said 'was virtually non–existent.' He said, 'You reckon you had a good business' He said, 'It is virtually non–existent.' And I told him 'bullshit'. I said, 'You ring Statewide.' I said, 'Statewide will tell you, it is on computer – they will tell you with our stock up there I would say over the last two years has probably been three hundred thousand dollars' I said 'ring em'. And he said 'he reckoned then also that the Hydes he said because I said my business has been sold, I said we were to finish that day to the Hydes, he said they were only a cover up, that that's all I used them for was a cover up and I told him I had nothing to do with it, where's Mike and where's Mr Zeeman, Mike would have been here in five minutes if he had of rung him. And he said that they just kept on talking and he said to me, he said Shane Rawlinson has admitted doing this I said I know Shane Rawlinson has said he's done it, I rang Jack Johnstone and told him he did it and he gradually come across the desk to me and he said to me if you knew why didn't you tell us, or tell Mr Zeeman. I said we did. And he said you didn't. I said we did when Mike gets here he'll tell you all about it and he said 'he's only covering up for you'. He's only protecting you, I said what a load of rubbish. And he also reckoned that that's why I had lost weight because I was frightened that I was going to be found out and I said to him I've been there for two weeks, I said on my own setting up that business, I had carted shelving from Deloraine, I had been everywhere setting it back up I said and I said I had spent that whole time, and that's why I lost weight, I had never worked so hard in my life as what I did setting that shop back up.

Now thank you? ... He told me he said –

Just take your time, I’ve got a couple more questions I want to ask you about what happened in the police room and then I'll progress a little further. Was there any reference made to Stan Graham in the police room?...

I was sitting on the chair and Mr Brazendale came over to me cause he charged across after this business of saying that I knew Shane, they both got most hostile about it and he walked over, I was sitting on the chair and he sort of pinned me on the wall, leaned over me like that and he looked at me and he said 'you did do that fire at Rossarden, why don't you say you did it'. I said, 'I never' and I flew up out from underneath him and I went across to the wall and I said to him Stan Graham's got something to do with this, I said, that old bastard I knew – I knew he had something – its just what he wanted, its exactly what he wanted."

1. Sergeant Brazendale was closely examined about the question whether he and Detective Hinds made any investigations, and if so to what extent, into the question whether the applicant had not tried to impress upon them that she had nothing to gain out of the fire, but in fact had more to lose, and into the question whether there was evidence that the applicant would have had any kind of motive to instigate the burning down of the store. The following passages contain the substance of this cross–examination:Sergeant M.G. Brazendale cross–examined by Mr Kable –

"Thank you. Now, in this arson case, you've been questioned previously about this haven't you? ... Yes

Cross–examined at some length – by me –– … That is correct.

In the committal proceedings? ... Correct.

Which are proceedings before a Magistrate in a Court of Petty Session? … Correct.

And the answers to which are recorded? ... That is correct.

And you were questioned and in fact, during the time that you were questioned the luncheon adjournment occurred and you went off and did some reading and then came back and answered some more questions? … That is correct.

And on that occasion you were asked a lot of questions about motive weren't you?....You asked questions about that yes

And you were questioned as to your view about the importance of motive as a detective, not in the legal side, in investigating the crime of arson? ...Yes

And what is your attitude to motive in the crime of arson? Do you think that's an important matter? ... The motive in relation to most crimes can be an important matter but it's something that – it doesn't change any fact but whether you could suggest that arson is any different to any other crime, I wouldn't like to  – go along with that.

You wouldn't like to say? ... No I wouldn't agree with you that arson is any different to any other – most crimes – in relation to motive.

Wouldn't you think that arson is a crime where you particularly go looking for motive if you can't find who has done it? ... I can't see where that is any different to even a stealing.

Can't you, alright. Well it was a matter which you regarded of some importance in this case, wasn't it? ... I considered it, yes.

Yes.  But you agree with me at no time prior to the 23rd September, 1983 [sic] did you do any work whatsoever on the financial consequences of this fire as far as Mrs Walker was concerned? No, I wouldn't agree with that.

You wouldn't? You spoke to a loss adjustor? ... Yes

And you have given sworn evidence that when you spoke to the loss adjustor the question of arson was not raised? ... No, what occurred when we spoke to the loss adjustor –

Is that correct or incorrect? ... The question of arson?

Yes? ... I don't recall that.

You don't recall it? ... What – if you may I would answer the question.

Yes? ... Is that we spoke to the loss adjustor in relation to – the situation as far as the insurance on the premises Whether the term arson or not was used, I don't know.

Well you tell us what enquiries you made between the day of the fire and the 23rd September, 1986 as to the financial consequences of this fire as far as Mr or Mrs Walker were concerned? ... very few.

Well tell us one that you made? ... As I say we saw the loss adjustor. We were waiting to be supplied with details from him.

What was he going to supply you with? ... He was going to – well we were hoping from what he had told us that he was going to supply us with the actual insurance set up, as to what was insured, what wasn't, the details and anything else that he may have been able to provide.

Thank you. So he was going to advise you as to the nature of the insurance and the extent of it? ... We hoped so.

Yes Now you didn't go and interview Mr Hyde? ... No.

You didn't go to the Island State Credit Union? ... No.

Your state of mind however was that Mrs Walker had something to gain out of this fire wasn't it, financially? ... Det Hinds and I discussed it yes and we believed she may have.

Well you believed she may have, is that an understatement or is that an accurate description of your state of mind? ... Sir as you've rightfully put it we had been unable to establish whether she had or she hadn't. In fact I am still not sure as to the motive but my state of mind at the time I thought she may have had something to gain from the fire.

Well you've previously expressed it in stronger terms than that haven't you, you've said that I felt in my own mind she had something to gain from it, not may have, had something? ...Yes well you've got it written there, if I said that –

Well I have asked you before not to refer to documents Sergeant. I am asking you questions, if it is not correct please tell me and I will show you. I am asking you – have you previously said or not said in a document, 'but I felt in my own mind she had something to gain from it'? ... Yes.

You have? ... I just said that now.

Well you said 'maybe' you don't see any difference between that. Is the answer 'no'? ... I'm sorry you seem to be playing on words, If I said that I believed at the time that she may have or she may have had something to gain from it.

She had something to gain. That's what you believed? ... Yes

That she would be better off because of it? ... But I also said to you that I'm still not sure.

No. Now Mrs Walker went into the Police Station with you and talked to you about figures didn't she? ... When?

On the 15th. ... No, she contacted us and asked that she see us and she came in and we had a discussion with her, yes.

For an hour? ... Round about an hour.

No breaks in the discussion, I mean no big 10 minute 15 minute breaks ? ... I don't think so.

What was the discussion all about? ... Well Mrs Walker had asked to come and see us because she was concerned about a meeting she had with some people who claimed they had a tape recorder that implicated her to the fire or something to do with the fire. She discussed that with us She also quoted some figures which were the same as what we'd been given on the day that I first took the statement and there was a couple of things that we went through, yes.

Let's – let's go back just a fraction; she complained to you that it had been said that there was a tape recorder in existence which connected her with the fire? ... I think what she said was that – – it was on Sunday, just previous, that she spoke to us that she had seen a fellow called Nickless –

Thank you ... Who claimed that he had something that suggested that she had something to do with the fire.

Yes And she was pretty upset about – upset's a bad word, I'll withdraw that – she seemed to you to be concerned about it? ... Well she, she came to see us –

Yes and she told you about Mr Nickless and this alleged tape recorder and she explained to you, or tried to explain to you that she wasn't going to be better off because of this fire and in fact, she'd be worse off? ... No, what she did, she – she told us about that then she said 'I've got nothing to gain' then she went through the figures that has – as we had as of the 30th.

Yes, now did you decide to analyse those figures, take documents from her and look at them to see whether what she was saying to you was correct? ... She – at the time, we Det Hinds and I discussed that she was coming in to see us and – we felt that we'd see that she had to say and she, she explained as I say, the figures as she'd given us previously.

Did you make any attempt whatsoever to verify the information she gave you on the 15th? ... Not on the 15th no.

I am sorry, a poorly expressed question. Did you – on the 15th or at any time between then and the 23rd attempt to verify the financial information that she had given you on the 15th? ... No we didn't get to do that no.

Didn't get to do that. Alright. Now did she tell you that she owned the old shop, and the service station freehold? ... That's in the original statement I think yes.

And that she didn't own the building which was the subject of the fire? ... Yes I think the statement says that she leases that.

…

Well you didn't know anymore about it by the 23rd did you as far as Mrs Walker, what she stood to gain or not? ... As I said to you that is correct, I am still not really sure but as of the 23rd I at least had been confirmed that Rawlinson had lit the fire.

Oh yes No question about that –  ... And, that I'd been told that he'd lit it because he'd been offered a thousand dollars by Mrs Walker.

Yes you'd been told that too hadn't you? ...  That's correct.

But you had no evidence as to what good it would do her did you? ...  No.

And you'd done nothing for what – eight to ten days, to either verify or disprove what she'd told you? ... We were waiting on that.

That was from the loss assessor, that wasn't your only source surely? ... Sir, I agree with you, I'd be the first to agree, there was a lot that hasn't been done and wasn't done by us, because we didn't get the opportunity to do it.

Alright, thank you. And Sergeant Jack Johnstone did give you a message? ... He told us that Pauline Walker had contacted him and she wanted to see us.

And you did nothing about that for four or five days at least? As I said to you, I don't know when he told me that.

Well if it was the 18th, it would be correct that you then did nothing for four or five days wouldn't it? ... I wouldn't like to say it was the 18th, I don't know –

No, the question didn't require you to make an admission that it was the 18th Mr Brazendale, the question was – if it was the 18th, then it would be correct would it not, that you did nothing about it for four or five days? ... I think it would be five days and would probably have gone over a weekend period.

Right. OK thank you. And in fact when you went to the flower shop on the morning of the 23rd Mrs Walker said something like 'Oh, you've got my message'? ... 'You've got my message then' yes

Something? ... Yes.

And you directed your mind back to what Sergeant Johns tone had told you?...  I said to her 'I heard that you were trying to contact us'.

Yes, and that was the tenor of the discussion at that time? ... That was said.

Yes Did you and Mr Hinds have any discussion about financial gains in this fire? ... We talked about it, yes.

'You did? When? Well we talked about it numerous times but after we had been up there we discussed it. I wouldn't like to say what particular day but, yes, we discussed it quite a number of times.

If your Honour will bear with me for a moment. Was your state of mind of the 15th, that is the day that she came to see you, at that stage, was your state of mind that she was better off financially because of the fire? ... It probably was, yes.

That state of mind persisted for some time until the 23rd. There was nothing to dissuade you from that state of mind during that time, was there? ... Well I still have nothing to dissuade me from that – state of mind.

No, good thank you. She told you about rumours in a place like Rossarden, didn't she? ... I don't recall her mentioning that.

You don't recall her mentioning that? Well you heard a lot of rumours about the fire, didn't you? ... Oh yes, I would agree with that."

1. The substance of the criticism of the alleged inadequacy of the investigation relates to s4(2)(b) and (c) of the Act, which provide:

"4(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:

(a)...

(b)Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;

(c)Whether the investigation into the offence was conducted in a reasonable and proper manner;"

1. As to the other sub–paragraphs of subs(2), I make the following comments in order to dispose of them. As to (a), there is nothing to suggest that the proceedings were not brought and continued in good faith, both so far as the police were concerned, and by the office of the Director of Public Prosecutions Sub–paragraph (d) has no application. As to (e), I am not able to form an opinion that the applicant "established ... that she was not guilty". I interpret this in the same sense as I did in The Queen v Powell (supra) as meaning "that on the evidence before the court (she) should be found not guilty".

1. In summing up to the jury, I left them in no doubt that my view on the evidence was that there was a grave danger of injustice being done to the applicant if she should be found guilty of the charge on the evidence before them, unless they felt sufficiently confident of their ability to make a subjective judgment about the truth or otherwise of the evidence of oral admissions given by the police officers, so as to rely upon this as the principal basis of being satisfied of the applicant's guilt beyond reasonable doubt. Of course I told them that they were in no way obliged to accept any views of mine about the facts, and also stressed to them that I was not suggesting that there was anything in the demeanour of the two police officers concerned, or in the manner in which they gave their evidence generally, to suggest that they were telling otherwise than the truth; and that they might take the same view, and that in any event it was entirely a matter for them whether they accepted that vital evidence of those officers or not. The jury was, of course, entitled to accept that evidence if they saw fit, and therefore, I am not in a position to be of opinion that the applicant established that she was not guilty.

1. I return to the principal basis of criticism of the investigation. It is clear in my view that the two police officers took no serious steps to investigate the question whether the applicant stood to make a financial gain out of the fire or not; or whether there was evidence that she had any other motive for instigating it. Mr Kable, of counsel, in making this application, suggested that there were only three possible motives; namely, financial gain from insurance payments after the fire, desire to do harm to the husband of the beneficial owner of the premises, with whom it was common ground considerable animus had existed for some time; or dislike of Rossarden. Of these possibilities, I think only the first could be seriously considered. Dislike of Rossarden can be discarded at once, and there is no evidence to suggest that the applicant knew any facts which might have indicated that the burning of the premises would have caused serious loss to the beneficial owner. That is to say, there is no evidence that she knew with any certainty whether the owners had the property itself insured.

1. One has to consider the position in which the investigating police officers should have found themselves I myself was not able to form any subjective opinion as to whether the police officers were telling the truth or not. In saying that, I wish to be in no way denigratory of them. As I told the jury, I saw nothing to suggest they were telling other than the truth; but in the course of many years experience at the Bar and on the bench, I have never been able to engender any confidence that I can make a correct subjective judgment about whether practiced witnesses, which of course experienced detectives usually are, are telling the truth or not. Of course, one tends to assume that they are, and one realises that if they are not, they are acting in the grossest kind of breach of their duties as police officers, as well as engaging in very grave criminal conduct. Nevertheless, I hold the view that Juries and other tribunals should be extremely cautious before convicting any person on a grave criminal charge on evidence which depends upon subjective acceptance of the truth of testimony that the accused made an oral admission of guilt.

1. I think also that experienced police officers are, or should be, aware that if their own evidence is involved in this way, however truthful they may themselves know it to be, such evidence is an unsafe and unsure basis for conviction on a criminal charge if it is not sufficiently supported by other evidence. Furthermore, these particular police officers were left in no doubt at the committal proceedings that their evidence would be strongly contested.

1. There were a number of other factors which in my view should have affected a judgment to be made by these police officers as to whether or not basic justice to the applicant required that they make an investigation of the question whether or not she had a motive by way of expected financial gain for instigating this fire. First, there was the fact of the unusual number of other fires of apparently suspicious nature which had apparently occurred in the district in recent times before this one. There was the nature of Rossarden itself, a town which no longer has any economic basis for existence; where consequently, properties are low in value, and where the evidence seemed to suggest that rumours abound, fires start easily, and local intrigues and enmities are rife.

1. More importantly though, I should have thought that the case plainly called for some investigation as to whether the applicant stood to gain financially from the fire. The applicant was insisting to the police that she had nothing to gain, and it should have been obvious to the officers that a person in her position would have been extremely unlikely to instigate this fire unless she did have a motive. They knew, or should have known, that the applicant's husband and children were no longer living at Rossarden, that businesses like the applicant's would be very difficult to dispose of to purchasers on anything like reasonable terms because of the nature of Rossarden; and that the applicant had in fact succeeded in disposing of her businesses on reasonably favourable terms, and was on the point of achieving her objective of getting out of Rossarden without any substantial loss of money. The officers must have known that when the store burnt down before the Hydes came in, the contract between the Hydes and the applicant (for convenience I leave out reference to her husband as a partner) would have gone by the board as a matter of course unless a new agreement could be negotiated. It stood to reason that no–one in a right mind, in the applicant's position, would have jeopardised her escape from the town in this way unless she had a strong motivation for doing so.

1. Yet the police made no serious effort to make that investigation. If they had done so, it is very doubtful that they would have found any convincing evidence that the applicant stood to gain financially in any significant way. I do not intend to canvass the details of the various considerations They will be found discussed between myself and counsel during the making of the application, and also dealt with to a substantial extent in my summing up to the jury.

1. In the event, I am satisfied that the police officers could have made such an investigation if they had chosen to, and that the applicant would have co–operated with them to the full if they had. The applicant gave sworn evidence, in which she was only too willing to be forthcoming, indeed voluble, about all her financial affairs At the end of a long cross–examination which was aimed at showing that she was in financial difficulties, and stood to gain, etc, no material achievement was made in either direction.

1. In result, I am of opinion that the matter of whether the applicant had a financial motivation was one which cried out for investigation, and that the police officers were not justified in relying upon their own subjective knowledge of the truth of the evidence they were able to give about oral admissions (which for the present purpose, I credit them with). In my view they should have stood off a little and viewed their own evidence on this point objectively, in the sort of light I have earlier indicated, and should have realised that common justice to the applicant required that they investigate the question of motivation, which she was in effect pressing them to do, before deciding to charge her, and thus subject her to heavy financial burden. The applicant is in fact legally aided, but only upon the basis that she had executed an equitable charge over her assets and remains fully liable for all costs.

1. In my opinion, the applicant has made out a positive case for making an order in her favour, and I do so by ordering that she be paid the taxed costs of her defence.