R v Horomona

[2009] NZCA 605

ORDER PROHIBITING PUBLICATION OF REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL ALTHOUGH THE RESULT MAY BE REPORTED.  PUBLICATION IN A LAW REPORT OR LAW DIGEST

IS PERMITTED, HOWEVER.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA117/2009 [2009] NZCA 605

THE QUEEN

v

LAURENCE BASIL HOROMONA

Hearing:         23 November 2009

Court:            Arnold, Potter and Heath JJ Counsel:   M R Bott for Appellant

A M Powell and A C Walker for Crown

Judgment:      17 December 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.   The conviction on Count 1 is quashed.   A new trial is ordered.

B        The sentence of twelve months imprisonment on Count 3 is confirmed.

R V HOROMONA CA CA117/2009  17 December 2009

CPublication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition   of   the   retrial,   although   the   result   may   be   reported. Publication in a law report or law digest is permitted, however.

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]      The appellant was convicted following trial by jury in the District Court at Hamilton  before  Judge  Wolff  of  one  count  of  arson  under  s  267(1)(a)  of  the Crimes Act 1961.  He entered a guilty plea at the close of the prosecution case to one charge of assault on a child under fourteen years under s 194(a).

[2]      He was sentenced to five years six months imprisonment on the arson charge and one years imprisonment on the assault charge, to be served concurrently.

[3]      The appellant appeals against both conviction and sentence.

Charge of arson

[4]      The appellant was charged with arson under s 267(1)(a) and in the alternative under s 267(3).  The jury convicted him of the more serious charge in Count 1 in the indictment, which charged:

(1)Laurence Basil Horomona on the 18th day of June 2008 at Hamilton intentionally or recklessly damaged by fire property namely a mosquito net and paper knowing or having ought to have known that danger to life was likely to ensue.

[5]      The essential ingredients of the offence as charged were that:

(a)      The appellant damaged by fire either the mosquito net or the paper or both; and

(b)       The damage was caused by the appellant intentionally or recklessly;

and

(c)      At the time of causing the damage by fire to the mosquito net or the paper the appellant either knew that danger to life was likely to ensue, or he ought to have known that it was likely to ensue.

Crown case

[6]      The Crown case, the evidence of which was provided principally by the complainant and the two detectives who undertook the scene examination, was essentially as follows.

[7]      The appellant and  his  partner,  the complainant’s mother, left their home address in Hamilton at about 3 pm on 17 June 2008 to go to Auckland.  They had been arguing.   The complainant, aged 13 years, was left at home with her two younger brothers, aged seven and five, in her care.

[8]      Later,  when  the  mother  and  the  appellant  had  not  returned  home,  the complainant put the two boys to bed in her bed.  She later checked the house was locked and joined her two brothers in her bed.

[9]      In the early hours of the morning of 18 June 2008 the appellant returned home.   He knocked on the complainant’s bedroom window to wake her and gain access inside the house.   She got out of bed and unlocked the front door.   She returned to bed.

[10]     The appellant followed her into the bedroom and, according to her evidence, said to her, “I’m going to burn this house down”.  She described him as “angry”.  He kept saying he was going to “smash” her mum.  He then took a cigarette lighter and attempted to set alight a mosquito net which hung over the complainant’s bed.

[11]     After he left the bedroom, she could hear him taking things and putting them in the car and when she got up she saw that her mother’s clothes were thrown outside on the driveway.  The appellant left after about 40 minutes.

[12]     In her video interview prior to trial (which formed part of the depositions material), the complainant said that she found some burnt paper in the bowl of the toilet and flushed it away.   However, in her evidence at trial the complainant said that she found the burnt paper on the kitchen bench.  She described the bits of paper she found on the bench as two or three pieces of A4 paper which were black all over, cold and crumbly to touch, and said she flushed them down the toilet.  She said in answer to cross-examination that the paper had not been there before the appellant came back to the house.

[13]     She saw a pot on the stove which had smoke coming out of it so she turned the element off.  She said there were two elements on, which she knew because the lights on the stove were red, and she turned them both off.

[14]    The Police did not seize the mosquito net immediately.   It appears the complainant put it under her bed and then took it with her when she later left the address.  When the mosquito net was examined the following day by Police, holes were found which the officer described as consistent with burning.

[15]     In  cross-examination,  defence  counsel  explored  with  the  relevant  Police officers that they had failed to secure the mosquito net as evidence when they first examined it, providing the opportunity for the burn holes to be caused afterwards, especially given that the burn holes had not been observed when the mosquito net was first examined.  It was also put to the complainant that she had caused the burn holes in the mosquito net herself, which she denied.

[16]     The  assault   on   the   complainant   occurred   on   the  following   morning (18 June 2008) when the appellant returned to the property and located her at a neighbour’s home.

Defence case

[17]     The appellant gave evidence.   He denied that he had a lighter or that he attempted to set fire to the mosquito net.   He said he did not even go into the bedroom and that he had no intention to burn anything.   He denied threatening to burn the house down.  He denied burning any paper or putting it down the toilet.  He agreed he cooked some eggs for himself and ate them.   He said he then gathered some of his clothes and left the property.  He believed he had turned the element off.

Conviction appeal

[18]     Two grounds were advanced in written submissions:

(a)      The complainant was not directly challenged as to inconsistencies between the account she gave in her video interview on 18 June 2008 and the account she gave at trial as to the location of burnt paper she said she found; and

(b)The Judge’s explanation to the jury about the evidence relating to the burnt  paper  invited  the  jury  to  treat  the  evidence  in  a  manner consistent with the Crown’s case to the detriment of the defence case.

[19]     There is no substance in either of these grounds.

[20]     The first ground appears to be an allegation of error in the way the defence was conducted at trial, but this was not pursued beyond a mention in the appellant’s written submissions and the steps contemplated by r 12A of the Court of Appeal (Criminal) Rules 2001 have not been implemented.

[21]     As to the second ground, the Judge simply explained to the jury that one possible interpretation of the evidence about burnt paper having been flushed down the toilet, namely that the appellant had set fire to the paper in the toilet bowl, was not likely to be correct.  This interpretation was not advanced or supported by either the prosecution or the defence, and the Judge’s explanation could not have resulted

in unfairness to either party.  Further, at the start of his summing up the Judge clearly directed the jury that it was for them to decide the facts and they should disregard any view he might indicate of the facts which was not consistent with their view, and subsequently twice directed them that the assessment of witnesses was a matter for them.

[22]     However, a third point emerged from the written submissions of the Crown. Responsibly,  whether  the Judge  had  correctly directed  the  jury on  the  essential elements of the charge of arson, was raised.  We consider that issue separately.

Directions to the jury on the essential elements of arson under s 267(1)(a)

[23]     In summing up to the jury, after introductory remarks including a direction that decisions on the facts were for the jury and as to the burden and standard of proof, the Judge turned to the elements of the charges.  He explained that the arson counts, Counts 1 and 2, were alternatives and that the jury would consider Count 2 only if they found the appellant not guilty of Count 1.  He then said:

You  can  only  find  [the  appellant]  guilty  if  you  are  satisfied  beyond reasonable doubt that [the appellant] firstly damaged the mosquito net, the paper, or deliberately left the stove on with the purpose of that stove itself starting a fire.   Next [the Crown] must show that [the appellant] either intended to damage the property, that is in the case of the mosquito net, the mosquito [net] itself, but in the case of the paper and the stove that he was using those as a vehicle to cause damage to other property, the house, or he was reckless when he behaved in that way.  You will find in favour of the Crown on this issue if you are sure that he intended, with the steps that he took, to cause at least some burning or charring to the net, or through the other medium, the paper and the stove, to the structure of the house.

Or he was reckless in that he recognised that some burning or charring might occur but nonetheless he went ahead and did put a lighter to the net, or lit the paper, or deliberately left the stove on.  On this aspect of the case you have to be sure that he actually recognised that there was a risk of damage to the net, in the case of the net, or in the case of the paper and the stove to other property that could have taken light as a result of those steps.

(Emphasis added.)

[24]     In so directing the jury the Judge treated the leaving of the stove elements on as an independent element of the offence of arson as charged.   This was not an independent element of Count 1, which charged the accused with damaging by fire

property “namely a mosquito net and paper”.   Indeed there was no evidence that linked the stove elements being left on with damage by fire.  The most that could have been charged in relation to that aspect was attempted arson, but the Crown made no application to amend the indictment to include such a count.

[25]     Having introduced the essential ingredients of the charge in Count 1 as set out above at [23], the Judge then continued throughout his summing up to treat the stove elements being left on as a potentially independent source of the fire.   He elevated that factor to an essential ingredient of the offence and left the jury with the option to convict on proof of it, as the actus reus of the offence charged.

[26]     Later in his summing up the Judge said:

The assessment of witness[es] obviously is a matter for you.  In the present case you’re going to have to decide when the damage was caused to the mosquito net, whether there was damage to paper that was later flushed down the toilet by the child, what was the purpose of that, was the stove left on and did the leaving of the stove on have a sinister purpose on the part of the [appellant]?

(Emphasis added.)

[27]     The Judge needed clearly to direct the jury about the appellant’s intention. He could, and should, have directed the jury that if they accepted the evidence of the complainant that there were two elements left on which she turned off, it was a factor they could weigh along with other relevant factors (including any words they found to have been uttered by the appellant about threatening to burn the house down, the use of the cigarette lighter on the mosquito net, and the burnt paper found on the kitchen bench by the complainant), in determining the intent of the appellant in causing damage by fire to the mosquito net and/or the paper.   But in repeatedly referring throughout his summing up to the stove elements being left on along with damage to the mosquito net and damage to the paper, the Judge confused proof of two distinct ingredients of the offence: proof the appellant set fire to the mosquito net/paper, on the one hand, and proof of intent on the other.   The jury were left without clear directions on both these essential matters.

[28]     The jury may have entertained a reasonable doubt that the appellant caused the holes in the mosquito net, given the questions raised about the chain of custody

in relation to the mosquito net.  They may also have entertained a reasonable doubt that the appellant set fire to the paper found on the kitchen bench or that there was any issue at all about the burnt paper.  But given the option left open by the Judge, the jury may have been satisfied beyond reasonable doubt that the appellant had left the two elements on intentionally or recklessly.

[29]     The Judge’s directions to the jury as to what were the essential ingredients of Count 1, and the way in which he dealt with the evidence of the stove elements being left on, were misleading,  The appellant was placed in jeopardy of being convicted of an offence with which he was not charged, namely attempted arson.   Accordingly there was a real risk of an unsafe verdict in relation to Count 1 in the indictment.

[30]     We cannot be satisfied that no substantial miscarriage of justice has actually occurred, in terms of the proviso to s 385(1) of the Crimes Act.  While the jury’s verdict confirms they accepted the evidence of the complainant, the manner in which the jury were directed in relation to the essential ingredients of Count 1 leaves their interpretation of the directions in doubt, and thus leaves a possibility the appellant was convicted of an offence with which he was not charged.

Result

[31]     The appeal must be allowed.  The conviction on Count 1 is quashed.  A new trial is ordered.

[32]     The sentence of twelve months imprisonment on Count 3, the assault charge, is confirmed.  Any issues of bail will be for the District Court.

[33]     Publication of the reasons for judgment in the news media or on the internet or other publicly available database is prohibited until final disposition of the retrial, although the result may be reported.   Publication in a law report or law digest is permitted, however.

Solicitors:

Crown Law Office, Wellington