Malone v The Queen

[2018] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000023 [2018] NZHC 1059

BETWEEN

MICHAEL JOHN MALONE

Appellant

AND

THE QUEEN

Respondent

Hearing:	9 May 2018
Appearances:	J A T Ross for the Appellant R W Donnelly for the Crown
Judgment:	15 May 2018

JUDGMENT OF NATION J

Background

[1]    The Police served on Mr Malone a trespass notice prohibiting him from going to the property of the complainant, a woman with whom he had earlier been in a relationship. The complainant also had the Police issue Mr Malone with a warning under the Harassment Act 1997.

[2]    At around 2.00 am on 3 July 2016, Mr Malone assaulted a man who was in the company of the complainant at the Bunker Bar in Queenstown.

[3]    Around 3.42 am on 3 July 2016, Mr Malone entered the Queenstown home of the complainant. Neither the complainant nor any of the other usual occupants of the address were there. Mr Malone put a tea towel in the oven, turned the oven to a high temperature with the oven fan on and left it there to burn. Before leaving the home, he picked up a bottle of whiskey but left it lying on the driveway.

MALONE v R [2018] NZHC 1059 [15 May 2018]

[4]    Mr Malone was charged with assault, an offence under the Trespass Act 1980, burglary and attempted arson.

[5]    At his hearing in the District Court, Mr Malone defended all charges. His defence on the assault charge was that he was acting in self-defence. He denied that he was the person who had gone to the complainant’s home in the early hours of the morning.

[6]    Mr Malone was convicted on all four charges and sentenced for all the offending to four months’ community detention, 150 hours’ community work and nine months’ supervision with conditions.

[7]    Mr Malone now appeals against his convictions for arson and burglary. He does not challenge the Judge’s finding that he was the person who entered the complainant’s home, left the tea towel to burn in the oven and took a bottle of whiskey and left it on the driveway. He argues, however, that the District Court Judge could not reasonably have found that the Police had proved the essential elements of the attempted arson and burglary charges. He appeals against the sentence but only if the convictions for both the attempted arson and burglary charges are overturned.

The District Court decision

[8]    As to the charge of assault, the Judge found that Mr Malone had, without provocation or any need to defend himself, pushed his victim so that he fell to the ground and hit his head.

[9]    There had been evidence that the complainant had been subject to intensive harassment before the incident, her car had been scratched, its tyres punctured and the petrol tank damaged, paint had been sprayed on the car and her house, taps had been turned on and left on, windows smashed, pot plants smashed, and a trip wire placed over the doorstep. These incidents led to the instalment of a motion camera. The camera had recorded a person approaching the home and outside the doorway entrance at 3.42 am and leaving the house entrance way at 4.03 am. It recorded the complainant and her friend returning to the address at 4.17 am.

[10]   Mr Malone had denied to the Police and in evidence that he was the person portrayed in the camera footage. He denied having gone to the address at the relevant time.

[11]   After a careful examination of the evidence, the Judge found that the person at the home was Mr Malone. The defence had accepted that Mr Malone had previously been issued with a trespass notice. Having found that Mr Malone was the person at the house, the Judge held the trespass charge had been established.

[12]   Mr Malone’s primary defence on the attempted arson charge was that he had not been the person at the home. Alternatively, the defence was that, for Mr Malone to be guilty of attempted arson, the Police had to prove beyond reasonable doubt that Mr Malone’s intention in leaving the tea towel in the oven was to cause damage to immovable property. Counsel submitted that this had not been established “because  of the impossibility of fire in the location, namely oven, and the temperature that the oven was set at”.

[13]   The Judge noted that it was accepted the tea towel was placed in the oven, the oven switched on and left on. He found Mr Malone bore animosity towards the occupant of the house, the complainant. He referred to her evidence of the intense harassment she had been subjected to before the incident. The Judge said this evidence led him:

… to the only reasonable conclusion that … the act of putting the tea-towel in the oven and switching it on was [the action of Mr Malone] who did that while he was illegally at the premises.

[14]   The Judge said the submission that the fire would not have damaged the house because it was contained in the oven was irrelevant. The appellant had intended the tea towel to catch fire and cause damage, and that was enough to fulfil the elements of the charge.

[15]   It is not clear from the Judge’s decision that either the Crown or the defence made submissions as to whether and what intent had been proved to establish the burglary charge. At the beginning of his judgment, the Judge noted that, in respect of the burglary, the defence had said there was no evidence that the person seen at the address actually entered the home.

[16]The Judge concluded:

The defendant had no authority to enter the house. He had no authority to remove the alcohol. His intention in entering the property had to be to commit a criminal imprisonable offence. I find at the time that he entered he had that intention. He had [no] legitimate reason to go to the address. He was trespassed and he knew that the owner […] was not present. He removed the bottle of alcohol and so therefore I am satisfied that he intended to commit the imprisonable offence when he entered the property. It follows therefore that I am also satisfied beyond reasonable doubt that when he entered he had no authority to do so because he was trespassed from the dwellinghouse at [...].  I find the charge proved.

Jurisdiction and principles on appeal

[17]   Mr Malone appeals as of right.1 As an appeal against conviction, the Court must allow the appeal if it finds that the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.2 Miscarriage of justice is defined in the Criminal Procedure Act as any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3

[18]   The appeal proceeds by way of rehearing, and the Court on appeal must examine the Judge’s reasoning carefully and come to its own decision on the facts.4

Submissions for the appellant

[19]   Through his adoption of the submissions filed by Mr Malone’s earlier counsel and as developed before me, Mr Ross argued the evidence was not sufficient to prove that Mr Malone had intended to damage immovable property. Mr Ross accepted that, if a tea towel had been set alight near what appeared to be flammable material, such as curtains associated with the building, it could reasonably have been inferred that a fire was started with intent to damage immovable property. Here, the tea towel had been left in the oven. He accepted that, with the oven and oven fan left on at a high temperature, the Judge was entitled to find that Mr Malone had intended for the tea towel to be set alight.  He argued, as counsel had submitted at trial, that the oven was

1      Criminal Procedure Act 2011, s 229.

2      Criminal Procedure Act 2011, s 232(2).

3      Section 232(4).

4      R v Slavich [2009] NZCA 188.

designed to control and deal with heat and there was no likelihood of fire damage because of containment. He accepted, as had counsel at trial, that the oven was a fixture and immovable property but he said, given the nature of a tea towel and the environment in which it had been left, it was not reasonable for the Judge to draw the inference that Mr Malone had intended to damage either the oven or any other part of the building.

[20]   As to the burglary charge, Mr Ross argued the Judge was wrong on the evidence to have found that Mr Malone intended to commit the imprisonable offence of theft at the time he entered the building based on his taking the bottle of alcohol from the home. For Mr Malone to have that intent, on entering the building he would have had to intend not just to take something from the home but to deprive the owner permanently of it. Here, the evidence was that he had taken a bottle of whiskey from the home but had left it on the driveway where it could be discovered by the owner. His actions were thus not consistent with his intent to commit theft when he entered the home.

Submissions for the respondent

[21]   Mr Donnelly emphasised the particular threshold for an appeal to be allowed, that Mr Malone has to show the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. He stressed that, for arson to be committed, the Crown did not have to prove that his intention was to set fire to the building. What the Crown had to prove was an intention to damage immovable property. He argued that the evidence was sufficient to allow the Judge to find, as he did,:

…that the defendant intended to commit arson in that he intended the towel to catch fire and that he intended to damage to ensue. That the damage might well have occurred only to the oven and/or a small part of the kitchen is irrelevant because the oven is part of the dwellinghouse and is a fixture.

[22]   As to the burglary charge, Mr Donnelly accepted that the evidence of an intent to commit theft, with regard to the taking of alcohol, would have been stronger if the bottle of alcohol had not been left on the driveway. Despite this, Mr Donnelly submitted that, with the evidence establishing that Mr Malone had taken the bottle from the house, the Judge could reasonably find that when Mr Malone entered the

home he had the intention to steal something from the owner in the sense of depriving the owner of it permanently, even if he had changed his mind once he was outside. Mr Donnelly submitted however that, if there was any doubt about this, the evidence as to what happened with the oven and the setting alight of the tea towel provided compelling evidence that Mr Malone had entered the home with the intent to damage property. There was a proper basis for the Judge to find that Mr Malone had thus entered the property with intent to commit arson or wilful damage, both of which were imprisonable offences.

Analysis

[23]   This being a rehearing, I must make my own assessment of what was established by the evidence. In the particular circumstances of this case, I bear in mind the advantage which the Judge had in hearing and observing all witnesses give their evidence, particularly so with Mr Malone. The Judge was at an advantage in assessing his credibility but also in considering what the evidence established in terms of Mr Malone’s likely intent at the time he entered the building and when he left the tea towel in the oven.

[24]   The Judge was entitled to infer, as I do, that it was Mr Malone who had on other occasions scratched the complainant’s car, punctured her tyres, damaged a petrol tank, sprayed paint on her car and house, turned on taps for no reason and left, smashed windows in the house and placed a trip wire over the doorstep to cause someone to fall when entering the house. The person filmed on the camera outside, identified as Mr Malone, had also, during this visit, been filmed smashing pot plants outside the property. The Judge found that, some two hours before the home had been entered, Mr Malone had, without any provocation, assaulted the man the complainant was with when they were at the Bunker Bar in Queenstown.

[25]   The complainant lived at her home with other occupants but none of them were present when Mr Malone entered the house. He put the tea towel in the oven and turned up the heat with the fan on, in a way which, as Mr Ross accepted, showed he had intended to set that tea towel alight. His intent had thus been to start a fire within an electrical appliance.

[26]   The complainant said in evidence that, when she took the tea towel out of the oven, it was singed and she ran it under water because it was about to catch fire. Her friend said that, when he and the complainant entered the house, there was quite a lot of smoke in the house and smoke was pouring out of the oven. There was no challenge to his evidence in this respect. It proves, as would have been known to Mr Malone, that an oven is not airtight.

[27]   In those circumstances and without any evidence to suggest otherwise, it was reasonable to infer that Mr Malone intended for the fire to cause the damage that would normally be expected from something that was left to burn in a confined space, either as a result of fire damage to the oven itself or through smoke damage to the room the oven was in. There was a risk that the damage could have been worse than that but, with all that happened on the night and with the way the tea towel was left to catch alight, the evidence was sufficient for the Judge to find that Mr Malone had intended to cause damage by fire to immovable property in which he had no interest or claim of right.

[28]   I am satisfied there was no error in the decision which the Judge came to on that charge and Mr Malone’s appeal against conviction for attempted arson is dismissed.

[29]   As to the burglary charge, on all the evidence the Judge heard as to Mr Malone’s conduct on the night, I consider that he had a reasonable basis for finding that a theft had been committed when Mr Malone took the bottle of alcohol from the home as he departed. All his actions on the night showed that he was intending to cause distress and harm in a general sense to the complainant. It would have been consistent with that for him to have decided when he left the property to take a bottle of whiskey he had found. The fact that he discarded the bottle on the driveway after leaving the building could have been consistent with him changing his mind at that point. It was also apparent from the evidence of the complainant and her friend that the bottle or bottles were at the top of a driveway and visible to neighbours. The whiskey had been left there in the early hours of the morning. The bottle had not been left in circumstances where it was clear Mr Malone intended for it to be recovered by the owner. With the evidence establishing that Mr Malone had taken the bottle of alcohol from the complainant’s home in these circumstances, there was a  reasonable

basis on which the Judge could find that he did so intending to deprive the owner of it permanently.

[30]   The Crown had to establish that he had the intent to commit an imprisonable offence as he entered the building. The authors of Adams on Criminal Law have observed that often the strongest evidence of someone having the required intent to commit an offence when entering a building comes from the fact they did, after entering the building, commit such an offence.5 In this case, the Judge could reasonably conclude that Mr Malone had entered the home intending to take property from it, particularly alcohol, with the intention of permanently depriving the owner of it.

[31]   Even if there could have been a reasonable doubt about this, the evidence clearly established that Mr Malone had entered the home with intent to commit an imprisonable offence in that, once inside, he wilfully damaged property. Wilful damage is an offence under the Summary Offences Act 1981 on which he could be liable to a sentence of imprisonment. Regardless of what his ultimate intentions were in leaving the tea towel in the oven, he did intentionally cause damage to the tea towel by leaving it to catch alight within the oven. What Mr Malone did in damaging the tea towel in this way followed on from his actions outside in damaging pot plants. It also followed on from the earlier damage to her property which the complainant had described. On all the evidence before him, it was reasonable for the Judge to infer that it was Mr Malone who was responsible for that damage. There was thus ample evidence on which it was established that Mr Malone unlawfully entered the home with intent to damage property.

[32]   On all the evidence the Judge heard, I am satisfied no error was made in finding Mr Malone guilty of the offence of burglary. His appeal in relation to that charge is dismissed.

Appeal against sentence

[33]   For Mr Malone, Mr Ross accepted that the sentence imposed would have been manifestly excessive only if Mr Malone had not been convicted of both the  burglary

5      Simon France J (ed) Adams on Criminal Law – Offences and Defences, (online looseleaf ed, Thomson Reuters) at CA231.07.

and attempted arson charges. Had his appeals against both those convictions been allowed, Mr Ross submitted the appropriate sentence would have been for community work and supervision, with the conditions as originally imposed. Those conditions required Mr Malone to complete an alcohol and drug treatment programme and to undertake and complete a Stopping Violence programme as directed by his probation officer. He was also not to travel to Queenstown without the permission of his probation officer. Mr Ross accepted that those conditions would have continued to be appropriate on a substituted sentence.

[34]   For Mr Malone, Mr Ross accepted that, even if only a conviction for burglary remained, the original sentence would have been appropriate, given the nature of the burglary and all the circumstances in which it occurred, and what Mr Malone did when he was inside the building.

[35]   For the Crown, Mr Donnelly accepted that the outcome which Mr Ross had referred to would be appropriate if and only if the appeals against conviction for both attempted arson and burglary were successful.

[36]   Mr Malone has not succeeded on his appeal against either the burglary or attempted arson convictions. His appeal against sentence must therefore be dismissed.

[37]   With the dismissal of his appeals, Mr Malone is to report to the Probation Service within 36 hours of receipt of this judgment.

Solicitors:

Jonathon Ross, Barrister, Invercargill Preston Russell Law, Invercargill.