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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Archer

Details

AGLC: The Queen v Archer [2009] NZCA 543
Case: [2009] NZCA 543
Decision Date: 18 November 2009

CaseChat Overview and Summary

In The Queen v Archer, the Court of Appeal of New Zealand allowed the appeal of Ms Archer against her conviction for arson and substituted a conviction for attempted arson in its place. Ms Archer was initially found guilty of arson after an incident at the Point Chevalier Baptist Church, where a fire was discovered in the women's toilets. She was sentenced to six months' community detention and 12 months' supervision. The primary grounds for her appeal were the insufficiency of evidence of actual damage to satisfy the charge of arson and the confusion caused by the summing up of the trial judge on the issue of damage.

The court examined the evidence presented, which included photographs of a small area of blackening on the front of the bench in the toilet area and testimonies from two police officers. However, the court found that there was insufficient evidence to establish that the blackening was due to charring, which would constitute damage, as opposed to soot or debris that could be easily cleaned. The court held that the evidence did not support the conclusion that actual damage had been caused by the fire, and that there was a reasonable doubt as to whether damage had occurred.

The court also found fault with the summing up of the trial judge, which did not sufficiently distinguish between charring (which would amount to damage) and soot (which might not amount to damage). The court concluded that the evidence did not support a finding that the blackening was either charring or soot, and that the summing up left it open to the jury to find that either could have caused the blackening and that in either case there would be damage. The court found that the evidence did not support either conclusion.

The court exercised its power under section 386 of the Crimes Act 1961 to substitute the jury's verdict for a verdict of guilty of attempted arson, as 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. The court also substituted the sentence for that passed under section 386, and the sentence that was passed remains appropriate and therapeutic in light of the appellant's obvious difficulties.

Ms Archer is sentenced to six months' community detention with special conditions, including a curfew, electronic monitoring, and restrictions on entering church premises and consuming alcohol or illicit drugs. She is also sentenced to 12 months' supervision with special conditions that she undertake work skills, training, or programmes and counselling as directed by a probation officer.

Orders