The Queen v Arjun Singh

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 442/00

THE QUEEN

ARJUN SINGH

Hearing:	20 June 2001
Coram:	Blanchard J Fisher J Potter J
Appearances:	J L Cagney for Appellant K Raftery for Crown
Judgment:	4 July 2001

JUDGMENT OF THE COURT DELIVERED BY FISHER J

Introduction

Arjun Singh made an insurance claim when his Waiheke Island grocery shop was damaged by fire. A District Court jury did not believe his version of events. He was found guilty of arson and fraudulently using a document and was sentenced to three years’ imprisonment. In these proceedings he appeals against conviction.

Factual background

Mr Singh and his wife had a grocery shop on Waiheke Island. During the working week they lived in a house about 100 yards away. He had insured the shop business and contents against fire.
At around 9 pm on the evening of 6 June 1998 Mr Singh and his wife set an internal shop alarm, locked the back door from the inside, checked that the windows were secure, locked a padlock on the front door, and went to their house nearby. Shortly after, a worker in a café near the shop heard an alarm. After investigation he found smoke coming from the Singh’s shop. He ran to the Singh’s house and told Mr Singh. After initial indecision Mr Singh ran off up the road to a restaurant. After speaking to those in charge of the restaurant he made a 111 telephone call logged at 9.11 pm. In the meantime some other person had telephoned the fire brigade at a time logged at 9.08 pm.
When the fire brigade arrived they found the shop still locked and no signs of forced entry. After breaking their way in with an axe they put out the fire. There was extensive damage to the shop and its contents. Experts examined the scene. It is not disputed that there were unmistakeable signs that the fire had been started from inside the shop by someone using a petrol accelerant poured behind a refrigerator.
Mr Singh was interviewed by the police. He made a signed and written statement to Constable Peters on 8 June 1998 and to Sergeant Moroney on 4 September 1998. Following a claim on his insurance policy he answered questions put to him by an insurance investigator. When these were reduced to typewritten form he made a statement in the form of a statutory declaration for insurance purposes on 2 July 1998. The terms of the insurance policy itself were not produced but their effect was not disputed. A claim under the policy could be pursued only if Mr Singh made the statement requested by the investigator. In all three statements – the two police ones and the insurance one - Mr Singh said that he had left the shop at about 8.30 pm.
In evidence given at the trial Mr Singh did not dispute the effect of Telecom records, and the evidence of a bystander, showing that in fact he was still in the shop taking part in a telephone conversation at 8.57 pm. Before leaving he had then carried in a sign from outside, collected his takings, closed a large door at the back, checked the windows, set the alarm system, switched off the light, and padlocked the front door, all of which would have taken him another two or three minutes. He could not have left the shop before about 9 pm. This was significant because it brought the accused’s departure from the shop much closer to the time of the fire. At the trial the Crown produced the two police statements as exhibits. Against defence objections, the Crown was also permitted to produce the statement to the insurance investigator of 2 July 1998.

First ground of appeal: admission of the insurance statement

The first ground of appeal was that the trial Judge should not have allowed the insurance statement to be produced in evidence.
In considering admissibility the first question is always relevance. The Crown’s stated purpose in producing the statement was to show that Mr Singh had lied about the time he left the shop. That in turn was said to show that he was not a man worthy of belief when he denied responsibility for the arson. In short, the statement was said to go to Mr Singh’s credibility.
Mr Cagney submitted that the insurance statement went beyond mere credibility in that it contained three significant factual admissions. The first was said to be that Mr Singh was at the shop not long before the fire. We cannot see that the insurance statement had any role to play in establishing that fact in the context of this trial. His presence in the shop not long before the fire was established by other Crown evidence and was conceded by Mr Singh in his own evidence. The second admission was said to be that he had locked the shop when he left. Again, that was independently established by a member of the fire brigade who said that the shop was still locked when he arrived. It was also conceded by Mr Singh in his own evidence. The third factual admission was said to be that Mr Singh had financial difficulties which could support an alleged motive for the arson. The financial picture painted by Mr Singh in his insurance statement was a healthy one. The basis for a financial motive came from other witnesses and exhibits which suggested a declining turnover and increasing trade debts.
We accept Mr Raftery’s submission that in the context of this trial the sole relevance of the insurance statement was that contended for by the Crown, namely that it went to credibility. It supported the allegation that Mr Singh had lied over the time he left the shop.
Once evidence is shown to be relevant it will be admitted unless there is an affirmative reason for excluding it. The reasons for excluding it were developed by Mr Cagney in a series of arguments to this Court - that Mr Singh had to make the insurance statement if he wanted to make a claim under the insurance policy; that in consequence the statement lacked the voluntariness necessary for its admission; that lack of voluntariness is a ground for exclusion even where the probative purpose is to establish the falsity of the statement for credibility purposes; that an insurance agent is to be treated as a person in authority for the purposes of s 20 of the Evidence Act 1908; that the circumstances in which the statement was taken conflicted with Mr Singh’s right to silence at common law; that it also conflicted with his right to silence under ss 23(4) and 25(d) of the New Zealand Bill of Rights Act 1990; that the insurance agent was acting as an agent of the police with consequent need for all usual police warnings and procedures for interviewing suspects; that rejection of the insurance statement was necessary if the Courts were to exercise adequate control over the procedures of insurance investigators; and that in all the circumstances the insurance statement ought to have been rejected on the ground of unfairness.
We do not think that this is the right case in which to pursue those arguments, even assuming that any of them had intrinsic legal merit. The insurance statement was not relied upon to establish an incriminating admission. It served only to suggest that on an earlier occasion Mr Singh had lied about something. On that issue the insurance statement was only one of three in which he had said the same thing.
In his evidence at the trial Mr Singh agreed that he had said in all three statements that he had left the shop at about 8.30 pm. His explanation was that that was the normal time that he closed. He did not dispute that the time recorded for the termination of the telephone call (8.57 pm) together with the further steps required of him after terminating that call, indicated that in fact he could not have left before about 9 pm at the earliest. He effectively admitted that his earlier statements were wrong. As the trial ultimately unfolded, therefore, the insurance statement became inconsequential. It was merely one of three statements in which the same error had been made.
We agree with the trial Judge’s ruling that the insurance statement was admissible but given the minimal role that it ultimately played in the trial we confine ourselves to four brief points.
First, the exclusion of involuntary statements had its historical origins in the risk that an incriminating admission extracted by violence, threats, or inducements, may have been untrue. We would leave for another occasion the question whether a statement adduced in evidence solely to show that it was false could ever be excluded on the ground that it had been induced by a desire to make an insurance claim. At the very least the situation is markedly different from that in which a statement made to a person in authority is produced in order to establish the truth of an incriminating admission contained therein. Clearly in areas of discretion and judgment the Courts will be less anxious to exclude statements of the former kind even assuming that there were the technical basis for doing so.
Secondly, the evidence in this case shows that the investigator was in no sense acting as an agent for the police. There was no prior arrangement or understanding with the police that the investigator would seek an admission which the police could then use. There may well be cases in which lack of the usual precautions required of the police themselves might vitiate a statement obtained by an agent on their behalf. This was not the case in which to run that argument.
Thirdly, counsel and the trial Judge focused largely upon the question whether the insurance statement amounted to an involuntary confession for the purposes of s 20 of the Evidence Act 1908. Section 20 is essentially a legislative qualification to the automatic exclusion which the common law would otherwise require in the case of involuntary confessions. The legislative qualification is that such a confession will still be admissible if the means by which it was obtained were unlikely to have made it untrue. That could have no application to a statement adduced for the sole purpose of showing that a false statement had been made.
Finally, we can see no basis for rejecting the insurance statement on the ground that in all the circumstances its admission would have been unfair. There was no question of using a potentially unreliable admission against an accused. It was not disputed that the statement was made and that it was accurately relayed to the Court. There was no element of trickery, entrapment, or improper conduct, surrounding its taking.
The insurance statement was properly admitted. This ground of appeal fails.

Second ground of appeal: petrol constituents on trousers

During the trial an ESR scientist, Mr Morgan‑Smith, gave evidence that remnants of petrol were found on and below the floor of the shop. That evidence was not contested. He also made the broad statement that “No hydrocarbon fuels were found on any of the clothing items”. In cross‑examination he was asked about the various components of petrol following which there was this exchange:
And was Mr Singh’s clothing tested for any of those other components? …
Um, its essentially the same test, it comes to whether you can assign, um, what you get off the clothing as petrol or not. In this case there were a number of components on the clothing, um, I believe particularly the trousers and shoes, that um, could’ve been attributed to petrol.
Only to petrol? … Certainly not. Um, that’s why we don’t assign it as petrol. Um, but they certainly could’ve come from petrol.
Mr Morgan‑Smith went on to refer to other potential sources, such as dry cleaning fluids and cleaning solvents, following which he returned to the constituents of petrol and said this:
Even though some of them may be present in the, um, ratios and locations I would expect for petrol, um, particularly with relation to the trousers, there was one grouping of chemicals that I would’ve liked to have seen in order to call it petrol, but um, that grouping was particularly unclear so, despite the presence of other components, I assigned it as an unassignable trace, and therefore gave a negative result.
In re‑examination Mr Morgan‑Smith spoke of the generally rapid rate of evaporation of petrol constituents, some at a faster rate than others. There was then this passage:
Would it be fair to interpret your answer in this way, that there are five distinct groups of chemicals that you might find in a sample where petrol has been? …. That’s what we’re required to identify as petrol yes.
Is my understanding to your answer to one of Mr Cagney’s questions correct, that there was one particular group which you didn’t find present which prevented you from concluding categorically that petrol had been present?… Correct.
But if that one group had been there, you would have had no concerns is that correct? … Yes I would have assigned it as petrol. As pointed out by Mr Cagney, these chemicals can be present from other sources, so that’s taken into consideration when coming up with this conclusion, we prefer to if we are going to make a mistake, make the mistake on the side of caution.
Well would it be fair to say that your tests certainly could not exclude the possibility that the substance that had been on the trousers was petrol? …. I will probably go along with that yes.
Just one of these groups had perhaps had evaporated off? …. It should be pointed out that with these particular samples, we’re very close to our level of detection for all five groups, so evaporation in that particular group is possible but it is one of the less strong groups that we look for.
The defence called another scientist, Mr Shanahan who experimented with petrol on Mr Singh’s unoccupied trousers. Mr Shanahan’s opinion was that had there been petrol on the trousers immediately before the fire it would still have been there in detectable quantities by the time they were examined by Mr Morgan-Smith.
In his closing address Mr Krebs for the Crown said on that aspect:
I want to talk very quickly about petrol remnants on the trousers. Mr Morgan‑Smith’s evidence was that he could not conclude beyond reasonable doubt, could not be sure, for Court purposes, that there was petrol on the trousers. Accordingly that was the statement and that’s what he told us before, but when questioned in cross‑examination, you will recall, he agreed that when petrol had been on a substance it can leave trace elements behind and when petrol has been on a bit of clothing or somewhere it leaves trace elements behind.
Remember when he explained that petrol is comprised of five compound groups and he started to give us a chemistry lesson about benzene rings and all bits and pieces and it was probably a bit much for all of us, but the message is clearly five different constituents and they evaporate off, they say the latelise, they are volatile, vaporate off at different rates, the light ones, the little ones evaporate off first, leaving the remnants behind and other ones come off until there is eventually nothing left, but the petrol that was there originally, and what he said was important.
In this situation he found on Mr Singh’s trousers and he couldn’t tell us whereabouts on the trousers because it was a combined sample, he found four of the five constituent groups petrol, the one that he didn’t find was the smallest one and he said that it was the one that evaporates first. Such that four to six hours, I think was his evidence, four to six hours after the petrol had been put on the clothing, that one had been missing. The other was still there. So the Crown says that is extremely powerful evidence.
It is not certain, I am not suggesting to you that that proves to you beyond reasonable doubt that there was petrol there, but it is one of these matters from which you can draw an inference. It fits with the Crown picture very well. Because, of course, Mr Singh, if we accept what he says, and again, there is nothing to suggest otherwise, said he was wearing those clothes all night and until they were taken off him mid day, on the Monday and Mr Morgan‑Smith the ESR Scientist said that of course, if he is wearing clothes, the heat from the body will in fact assist the evaporation process, that is not surprising either.
That was countered by Mr Cagney for the defence who said in his closing:
Now Mr Krebs took a very brave approach, he said, four of the constituents of petrol were on his shoes or trousers, I forget which, it doesn’t really matter. That is an opinion that his own chemical expert was not prepared to say. But Mr Krebs says it.
And indeed that witness, you will recall, in cross examination, admitted the possibility of those compounds coming from another source in any case. He couldn’t exclude it, it cold have got there on another occasion. I don’t suggest to you, as Mr Krebs said I would, that they might have got on Mr Singh’s clothing when he went into the fire during the night, because that would be stupid, how is he going to get petrol from under the floor on his trousers by going into the shop.
So that evidence doesn’t have the significance that is attributed to it and you will recall Mr Shanahan’s test with 1/5^th of a teaspoon of petrol, a very modest amount indeed, put on trousers left in open air for varying periods, and on the trousers he could detect it by smell up to 14 hours and on the shoes I think the figure was 46 hours and yet Mr Krebs asks you to take something from that scientist’s evidence that the scientist himself is not prepared to take. Be very cautious before you take the brave course that he has taken on that matter and really, isn’t that only a somewhat illogical attempt to account for the obvious fact that Mr Singh had given to the police the clothing that we know he was wearing and the absence of petrol on it, the absence of identifiable petrol. Mr Shanahan’s evidence is clear, if there was petrol that’s traceable to this fire on the clothing, it should have been found by the scientist because the police seize it, put it into bags within 14 hours and it should have been traceable even by smell but it was not and it wasn’t even by the most modern chemical or scientific processes. So don’t be sucked into doing that when the scientist himself is not prepared to do so.
In his summing up the Judge dealt with it this way:
The evidence of Mr Morgan-Smith on finding the four out of five constituents of petrol on the clothing has been the subject of important debate between the lawyers. You will have to assess that against Mr Shanahan’s test and his ability to smell, after quite a protracted period of time. Are you certain that that assists you or not? You are going to have to focus on that.
In this Court Mr Cagney submitted that there was no evidence before the jury that properly gave rise to the inference which Mr Krebs had asked them to draw. Nor was it corrected by the Judge. He submitted that there was no basis for saying that there were “remnants of petrol” on Mr Singh’s trousers, that Mr Krebs had misled the jury in that respect, and that this could have played a critical role in the jury’s decision to convict. In support Mr Cagney sought leave to file an affidavit from another scientist as to the significance of the chemicals found on Mr Singh’s trousers. That was countered by an affidavit from Mr Morgan-Smith. The fresh evidence was then overtaken by an agreement between the two scientists produced to this Court. It was agreed that the compounds found on Mr Singh’s trousers included some, but not all, of the constituents of petrol. The scientists were also encouraged to express opinions about the way in which the scientific evidence given at the trial compared with Mr Krebs’s closing address to the jury.
By way of preliminary comment, we cannot see that either the further affidavits or the associated agreement added anything of consequence to the evidence already adduced at the trial. Nor do we think that it is the role of expert witnesses to express opinions as to the way in which recorded trial evidence compares with recorded addresses to the jury.
More importantly, we do not think that the scientific evidence was misrepresented to the jury. Mr Krebs’s address had to be viewed as a whole. In isolation the expression “petrol remnants on the trousers” would have begged the question but he went on to make it plain that only four of the five constituent groups of petrol were found and that Mr Morgan-Smith “could not be sure, for Court purposes, that there was petrol on the trousers”. Mr Krebs described it as “one of these matters from which you can draw an inference”.

The choice between conflicting expert opinions was a matter for the jury. There was an evidentiary foundation for the submission that four out of the five constituents were present and that the missing one could have evaporated before examination. This was a circumstantial evidence case. The fact that four out of the five constituents were arguably present, and that the fifth could have evaporated, formed another in an aggregation of circumstances capable of increasing the likelihood of guilt. The opposing arguments in that respect were put to the jury and adverted to by the Judge in a balanced way. This ground of appeal fails.

Third ground of appeal: timing of alarm signal

In the context of focusing on relevant issues the Judge said this in his summing up:
We have had a bit of a talk on both sides of the fence today about red herrings and especially, I think, from the defence being critical of aspects of the Crown case where there is criticism of the fire officer, for instance, not seemingly to check the way the fire alarm was triggered and criticism of the way the insurance man, Mr Miller did 207 questions and so on. What you have got to do with all that sort of stuff that has been focused on as being perhaps red herrings, is simply to ensure that you got a proper focus. Often you can get the focus wrong and your focus is whether either one or both of these crimes have been committed. Things that do not focus on that are irrelevant to you. They are not proof at all. For instance, the checking of the fire alarm, just as an illustration, we do not have any evidence on that at all, so there is nothing. You just ignore it. All you can do as jurors is to focus on what you have got and if you have not got it, it is of no use to you. (emphasis added)
With respect to the italicised words Mr Cagney submitted that the Judge was wrong to say that “we do not have any evidence on that”. At the trial the defence had called evidence that the fire alarm in the shop had a 30 second delay period during which someone could leave the shop and lock it without triggering the alarm. We can see nothing in this point. The Judge was not talking about the features of the alarm. He was pointing to the fact that nobody had examined it after the fire to see what it was that had triggered it.
Secondly, Mr Cagney sought leave to tender to this court further affidavits designed to show that if the fire had been started by Mr Singh the alarm would have triggered not more than two minutes after he had set it. Mr Cagney submitted that the trial evidence showed that the audible alarm was heard “not long before” the telephone calls were made at 9.08 pm and 9.11 pm and that “on any view of the evidence a good deal more than two minutes after the appellant left the shop at about 9 pm”.
We do not think that the fresh evidence proposed would have been determinative of any issue for the jury. The only evidence that Mr and Mrs Singh had left the shop by 9 pm came from Mr and Mrs Singh. Although a passer‑by observed the shop to be closed at about 9 pm, Mr Singh would scarcely have left it open if he were inside making preparations to set it on fire. The earliest point at which the fire in fact developed, and the alarm sounded, is elastic. All that is clear is that it was some time before about 9.08 pm. The fresh evidence proposed is limited to general comments given in hindsight without examination of the scene. It does not specifically address the delaying effects of concealing the bed of the fire behind a refrigerator. Nor does it exclude the possible use of a fuse to delay ignition. This ground of appeal fails.

Conclusions

The three grounds of appeal fail. We would simply add that if there had been any lingering reservations about the appeal they would have been dispelled by the overwhelming strength of the Crown case. It was not disputed that someone had deliberately lit a fire inside the shop during a period of no more than ten minutes between 9 pm and 9.10 pm; that Mr Singh was the last person known to have been inside the shop; that he was there until at least 9 pm; that he locked the shop when he left; and that it was still locked when the fire brigade arrived. As Mr Raftery pointed out, for the fire to have been lit by anyone other than Mr Singh or his delegate a stranger would have to have been in a concealed position nearby, rushed forward after Mr and Mrs Singh left, entered the locked shop without leaving signs of entry, lit the fire in a concealed position behind a refrigerator, left the shop in a locked condition again, and departed, all without being seen by bystanders. Mr Singh also faced other incriminating evidence including potential motive. The inference that he was responsible was irresistible.

Result

The appeal is dismissed.

[2001] NZCA 196

4 July 2001