The Queen v Archer

[2009] NZCA 543

IN THE COURT OF APPEAL OF NEW ZEALAND

CA647/2009
[2009] NZCA 543

THE QUEEN

v

MARGARET ANN ARCHER

Hearing:12 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ

Counsel:J M Scott for Appellant

B D Tantrum for Crown

Judgment:18 November 2009 at 11.30 a.m.

JUDGMENT OF THE COURT

A            The appeal is allowed.

BThe conviction for arson is quashed and a conviction for attempted arson is entered in its place.

COn the charge of attempted arson, Ms Archer is sentenced, effective from 16 September 2009, to six months’ community detention and 12 months’ supervision on the conditions detailed in [18] and [19].

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

[1]        On 12 August 2009, after a trial before Judge Paul and a jury in the Auckland District Court, the appellant, Ms Archer, was found guilty on one count of arson.  The charge followed an incident at the Point Chevalier Baptist Church in which a fire was discovered in the women’s toilets. The appellant was subsequently sentenced to six months’ community detention and 12 months supervision.  She appeals against her conviction.

[2]        The two grounds raised in support of the appeal are, first, that there was insufficient evidence of actual damage to satisfy the charge and, secondly, that the Judge’s summing up in relation to the issue of damage was confusing and incorrect.

[3]        There was no dispute that Ms Archer had gone into the Point Chevalier Baptist Church on the evening of 26 September 2008.  When questioned by the police, she told a police constable that she had gone into the church to use the toilet that night.  The issues at trial were whether it was Ms Archer who had started the fire and whether actual damage had been done.

[4]        The Crown puts its case squarely on the basis that the fire had damaged the fixtures and fittings of the toilet area, in particular, the bench where two sinks were situated.  Ms Scott, for the appellant, referred us to a number of authorities on the meaning of damage.  In its ordinary use it would mean “injury impairing value or usefulness” (Concise Oxford Dictionary of Current English (7ed 1982)).  Halsbury’s Laws of England (4ed 2005) states:

Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of its use or value…Since it is not necessary that the effect of what has been done should be permanent, the fact that it is rectifiable does not prevent the property being damaged.  However, where it is rectifiable, the amount (and any cost) of rectification are relevant factors in determining whether there is damage…  If these are minimal it may be found that what has occurred is not damage.

[5]        It is apparent from both Australian and UK cases that what constitutes damage is a matter of fact and degree.  A temporary change, even slight, in an object may constitute damage if it affects the value or usefulness of that object.  Whether that amounts to damage will depend on the circumstances.  Of most assistance to Ms Scott’s argument was the decision in “A” (a juvenile) v R [1978] Crim LR 689 where it was held that spitting on a raincoat which was likely to be cleaned easily with a damp cloth did not amount to damage whereas the same act on a delicate garment, such as a wedding dress, might well have resulted in damage.

[6]        Photographs of the bench were produced that show a cupboard beneath the left hand sink and an open shelf beneath the right hand sink.  In the photographs it is (just) possible to see a small area of blackening on the front of the bench.

[7]        The other evidence of damage came from two police officers.  Constable Ingley was directed to attend the church after the police had been notified.  He went into the toilet area and observed:

A small amount of toilet paper which was singed underneath the sink.

[8]        Constable Ingley was referring to the open shelf beneath the right hand sink.  He did not describe any other damage in the toilet area.  In cross-examination he specifically said that he did not see any damage to fixtures or fittings.

[9]        Detective Constable Hewlett arrived later, having been tasked to carry out a scene examination.  She observed:

AWhen I first went into the bathroom the area was relatively clean.  Information that I had received was that the area had been wiped clean and I did notice some blackening from ash or some sort of charring on the top of the sink…

QAnd when you say there was charring, can you say what sort of area that was over?

AI recall noting that it was around about a 15 centimetre circle of debris and just leftover burning.

QWhen you say debris what exactly made you think that it was debris from the fire?

ABecause I could see the burnt ash…I just recall that underneath the shelf there was a little bit of leftover burnt debris that maybe hadn’t been properly cleaned up, I’m not sure.

[10]       In cross-examination, having confirmed that the area of blackening and charring she was referring to was the rim of the melamine bench, she gave the following evidence:

Q            But you can’t really say though, can you, that that’s charred?

A            Um…no.

Q            By looking?

A            Charred.

Q            And you can’t really say…

A            Melted no.

QAnd certainly you can’t look at that and say that the melamine shelf below is burnt can you?

A            No.

QSo what you’re saying is that is you could see a slight blackening on that melamine rim is that right?

A            That’s correct yes.

QAnd we don’t know do we whether it was soot or some other substance that was causing that black mark?

A            I would call it soot...

QAnd so looking at that photo we cannot see any damage at all to that bathroom can we?

ANo there’s – apart from the blackening.  Whether or not that would come off I don’t know.

Q            So no damage to fixture and fittings?

A            No.

[11]       Ms Scott submitted that on the basis of this evidence and the photographs there was insufficient evidence to satisfy the requirement of damage to the toilet area.  We agree that there was no evidence as to precisely what the blackening on the sink was.  It may have been charring which was permanent.  Or it may have simply been a small amount of soot or debris left from the fire which could easily be wiped away.  Given the slightness of the marking and the uncertainty on the evidence of its true nature there must have been a reasonable doubt as to whether actual damage had been caused.

[12]       Ms Scott also submitted that the Judge’s summing up on the issue of damage was confusing.  The Judge said:

… It is a requirement of these arson charges that damage is caused…Something can be said to be damaged or damaging where there is an injury impairing the value or usefulness of the property.  The damage can be permanent or temporary and it can be damaging if it prevents the property from performing its usual function.  In this case, for your purposes, if you were to find as a fact there was charring or soot in the bathroom … that would be evidence of damage …

[13]       Later, having referred to the evidence from Constable Ingley and Detective Constable Hewlett the Judge concluded that:

That’s a question of fact for you as to whether there was charring, whether there was soot and whether that, if you find those things, that was damage.

[14]       Although Detective Constable Hewlett did refer to “some sort of charring on the top of the sink” in cross-examination, she retreated from that position, acknowledging that she could not say the blackening was charring.  Further, Ms Scott submitted, the Judge failed to make it clear that there had to be actual damage to fixtures or fittings to the bathroom and failed to distinguish between charring (which would be damage) and soot (which might or might not amount to damage depending on the extent of it).

[15]       The summing left it open to the jury to find that the blackening could have been caused by charring or the deposit of soot and that in either case there would be damage. In our view the evidence did not support either conclusion.

[16]       We are satisfied that there was insufficient evidence on which the jury could have found that actual damage had been through the fire.  We consider, however, that the evidence would have supported a charge of attempted arson.  In addition to the issue of damage, the jury was asked to determine whether the appellant lit the fire and whether, in doing so, she intended to cause damage to the property of the church knowing that danger to life was likely to ensue.  Looking at the other evidence that was adduced it is clear that the jury was entitled to find those elements proven.  Since the elements of a charge of attempted arson were in issue at trial and the evidence would have supported a guilty verdict on that charge we consider that the appropriate course in this situation is to exercise our power under s 386 Crimes Act 1961 to substitute the jury’s verdict for a verdict of guilty of attempted arson.  There can be no suggestion of prejudice to the appellant.  Mr Tantrum submitted that we could take this step under s 335 but, on further consideration, it appears that s 335 confers that power; see Robertson (ed) Adams on Criminal Law (Looseleaf ed) at 355.20.

[17]       Section 386 also enables us to substitute a sentence for that passed.  We are satisfied that the same sentence should be imposed on the substituted charge.  The sentence that was passed remains appropriate and even, as Ms Scott observed, therapeutic in light of the appellant’s obvious difficulties.

[18]       The appeal against conviction for arson is allowed.  The conviction is quashed.  A conviction for attempted arson is entered in its place. 

[19]       On that count, Ms Archer is sentenced to six months’ community detention with special conditions:

(a)A curfew from 1800 hours to 0800 hours: that is six at night until eight in the morning, seven days a week for six months effective from 22 September 2009.

(b)Reside at 9 Katoa Street, Pt Chevalier, for the duration of the sentence of community detention.

(c)Comply with the requirements of electronic monitoring as directed by a probation officer.

(d)Notify a probation officer prior to starting, terminating or changing any position or place of employment.

(e)Not to enter any church premises.

(f)Not to consume alcohol or illicit drugs during the term of the community detention.

[20]       Ms Archer is also sentenced to 12 months’ supervision effective from 16 September 2009 with the special conditions that she undertake such work skills, training, or programmes as directed by a probation officer and to undertake such counselling and programmes (including alcohol and drugs) as directed by a probation officer.

Solicitors:

Crown Law Office, Wellington