Thomson v The Queen

[2005] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/05

THE QUEEN

v

JEREMY KURT THOMSON

Hearing:26 May 2005

Court:William Young, Panckhurst and Doogue JJ

Counsel:B R Green and S A Segaran for Appellant

M N Zarifeh and M T Bradley for Crown

Judgment:14 June 2005 

JUDGMENT OF THE COURT

A         The appeal against conviction is dismissed.

BThe appeal against sentence is allowed.  The sentence imposed in relation to the Wentworth Building is reduced from six years to five years.

REASONS

(Given by William Young J)

Introduction

[1]        The appellant and two other men, Robert Rouse and Harlei Davis, were charged with two counts of arson involving two separate incidents.  The first related to the destruction by fire of the Wentworth Building in central Christchurch in the early hours of 18 October 2003 and the second to the destruction by fire of a residential house in Armagh Street, Christchurch on 20 October 2003

[2]        Rouse pleaded guilty to both charges and was sentenced to six years imprisonment.  The sentencing Judge (Judge Moran) saw his offending as warranting a starting point sentence of eight years.  The appellant and Davis pleaded guilty to the Armagh Street fire but defended the charge in relation to the Wentworth Building.  At their first trial the jury disagreed.  At the second trial (which was before Judge Crosbie) Davis was acquitted on the charge associated with the Wentworth Building but the appellant was found guilty.

[3]        Subsequently Judge Crosbie sentenced the appellant and Davis to three years imprisonment in relation to the Armagh Street fire and the appellant was sentenced to six years imprisonment in relation to the Wentworth Building fire.

[4]        The appellant now appeals against conviction in relation to the Wentworth Building fire and sentence in relation to both fires.

The conviction appeal

The facts – the Wentworth Building arson

[5]        There was little dispute at trial as to the underlying facts.  It was common ground that:

(a)The appellant, together with Rouse and Davis had entered the building. 

(b)Rouse was the primarily culpable offender but the appellant and Davis were present in the building when the fire started and they left the building in company with Rouse. 

(c)Within 26 hours of the Wentworth Building arson, all three men were involved in the destruction by fire of the Armagh Street building and that the participation by the appellant and Davis was such as to make them guilty of arson.

[6]        The appellant and Davis were present with Rouse on a number of occasions in which Rouse had taken a primary role in discussing the Wentworth Building arson with three young people, Nathan Hastie, Aleesha Turnball and Megan Keen.  One of the issues at trial, to which we will revert shortly, was whether the participation by Davis and the appellant in those discussions could be treated as being an implied admission of complicity in the Wentworth Building arson.

[7]        There was some evidence that was particular to the individual defendants. The appellant and Nathan Hastie had a discussion that, at least according to Nathan Hastie’s initial description, involved a possible admission by the appellant of complicity in the Wentworth Building arson.  As well, the statements made to the police by the appellant and Davis were appreciably different.

[8]        The appellant made a number of statements to Detective Constable Pritchard. The first was on 23 October 2003.  Making sense of this statement is not altogether easy because throughout the statement the appellant attributed the actions of Davis to Rouse and vice versa.  This was apparently because he was under some pressure from Rouse at the time.  In the course of the statement the appellant initially asserted that the fire in the Wentworth Building was started solely by Davis and he asserted that he and Rouse:

… were telling Harley not to do it.  …

[9]        After the formal statement had been completed a question and answer sequence occurred which was recorded as follows:

ISYou are not obliged to say anything and anything you say may be given in evidence.  Do you understand that

HS      Yes

IS        Did you light anything while you were inside the warehouse

HS      No I did not

IS        Did you light any bits of paper on fire

HS      No

IS        Harley is saying that you and Rob lit the fire, is that correct

HS      No

IS        Were you encouraging anybody to light the fire

HS      No

IS        Was anyone being encouraged to light the fire

HS      No, I don’t remember any encouraging going on.

ISRob has said that when you first went inside the warehouse both you and him were lighting bits of paper which encouraged Harley to start lighting things.

HSThere were little bits of paper on the floor away from the boxes.  Me and Rob lit a few bits of paper but we stamped them out soon after the flames had started.

ISWhat was Harley doing while this was happening

HSHe would have been mulling around just like we were when he was flicking the matches.

(Emphasis added)

[10]     Later Detective Constable Pritchard had a further discussion with the appellant in the course of which he said to the appellant:

The witnesses told the police that all three of you admitted to lighting the fire.

According to Detective Constable Pritchard the appellant responded:

I didn’t light the fire which caused the bigger fire, but I do admit to lighting the bits of paper which were on the ground and they were stamped out well before they became dangerous.  We often refer to all three of us as one of us and one of us as all three of us.

[11]     The appellant made two other statements to the police, one on 12 November 2003 at around 9.24am and the second one on the same date at 3.41pm.  In the course of the latter statement he acknowledged that in his first statement he had attributed to Davis the actions of Rouse and vice versa.  The following exchange between him and Detective Constable Pritchard was then recorded:

IS        Was everything else in the statement correct?

HSYep, except for the last two questions on page 4 which are wrong.  I didn’t light any bits of paper inside the room where the fire started.  I only lit bits of paper on the way out of the building and down the alleyway.  Harley was only milling around, he was not flicking any matches and I wasn’t flicking any matches either.  Robert was the only one who was flicking the matches.

[12]     Given the admissions made by the appellant which we have emphasised and that Davis did not make any corresponding admissions to the police, the fact that the jury found the appellant guilty but acquitted Davis is not altogether surprising.

The appeal against conviction

General

[13]     With that background in mind we will discuss the various heads of argument under which the appeal against conviction was argued.

The reading of the evidence of Nathan Hastie

[14]     Nathan Hastie gave evidence at the first trial but was not available to give evidence at the second trial.

[15]     Nathan Hastie knew Rouse as they had gone to school together.  On what he believed was 20 October (the night of the Armagh Street fire), the appellant, Rouse and Davis came to his flat.  He was flatting with three other people including Megan Keen and Aleesha Turnball.  Nathan Hastie said that Rouse and the other two men discussed the Wentworth Building arson in terms indicating that Rouse was the primary offender.  The effect of his evidence (after he refreshed his memory from a statement he made to the police on 24 October 2003) was that Davis and the appellant claimed in the course of the discussion to have been lighting matches with Rouse and throwing them at the building but had asserted that the matches didn’t light.  He said that at the end of the conversation Rouse said that he was off to light another fire and that the appellant and Davis went with him.

[16]     Nathan Hastie also said that the night following the Armagh Street fire (ie on Tuesday 21 October) he saw the appellant and Rouse and in the course of the discussion the appellant said:

… They’d lit another fire down Armagh Street.

[17]     In cross-examination he said that the appellant, in the discussion at the flat, had asserted that Rouse had lit the fire.  He also conceded that in the discussion on Tuesday 21 October the appellant had not used the phrase “another fire”.

[18]     As will become apparent, his evidence was broadly similar to that of Aleesha Turnball and Megan Keen. 

[19]     At the second trial, the Crown sought to have the transcript of Nathan Hastie’s evidence at the first trial admitted pursuant to s 3(1)(a) of the Evidence Amendment Act No. 2 1980. 

[20]     Having heard evidence from the police, the Judge concluded that Nathan Hastie was “unavailable” for the purposes of s 3.  The evidence showed that he had gone to Australia without leaving a residential address there.  He left a cellphone number with his flatmates.  Police were unable to make contact with him using that number.  Police obtained details from the arrival card which Nathan Hastie had filled in when he arrived in Australia.  This provided no residential address but the same cellphone number that the police had already tried.  The Judge considered there was scope for criticism of the police and/or the Crown prosecutor in not advising defence counsel earlier of the difficulties the police were experiencing in locating Nathan Hastie but he saw these criticisms as being of little moment.  He addressed the significance of Nathan Hastie’s evidence noting that the transcript to be produced included the record of cross-examination.  He then concluded his ruling by saying:

[41]     In view of the above, I consider Mr Hastie is unavailable.  It is not practicable to obtain his evidence and he cannot with reasonable diligence be found.  In my view it is appropriate to admit his evidence subject to a proper caution to the jury that they should be careful in the assessment of, and weight they can attach to, his evidence, given that they will not have an opportunity to see and hear him.

[42]     For the above reasons I rule that evidence of Hastie from the first trial be read to the jury pursuant to s. 3 of the Act.

[21]     This ruling was challenged by Mr Green for the appellant essentially on the basis that the police had taken inadequate steps before trial to make contact with Nathan Hastie, that inquiries were not made of Australian Customs, police authorities and other government agencies until after the commencement of the trial and the police had never approached Nathan Hastie’s family. 

[22]     We do not accept this ground of appeal.

[23]     By the time of the second trial Nathan Hastie was almost certainly in Australia and not in New Zealand.  He could not be compelled to give evidence in the District Court trial of the appellant and Davis unless he chose to return to New Zealand.  The police were not in a position to require that.  Given that he was aware of the retrial date when he left New Zealand, his lack of contact with the police about his departure to Australia and the messages left by the police on his cellphone to which he did not respond, it is reasonable to infer that he was not prepared to cooperate in terms of providing evidence.  It seems to us that the evidence clearly showed that the witness was “unavailable” for the purposes of the definition of “unavailable” in s 2 of the Evidence Act.  In particular, the Judge was entitled to conclude that Nathan Hastie was “outside New Zealand” and also that it was “not reasonably practical to obtain his evidence”.  Given this inference (which the Judge in effect drew) the criticisms made of the police seem to be of little moment.

[24]     That left a discretion for the Judge to exercise.  The Judge did so, having regard to the nature of the transcript of evidence which was to be produced and the significance in the context of the trial as a whole.  The appellant has not shown a basis upon which we can legitimately interfere with the exercise of that discretion.

Statements made by co-offenders in the presence of the appellant

[25]     Megan Keen and Aleesha Turnball gave evidence at trial of the discussion in their flat in which Rouse, Davis and the appellant discussed the Wentworth Building arson.  Their evidence was broadly similar to that of Nathan Hastie.  The Crown sought to rely on that evidence as implicating the appellant on the basis that his participation in the discussion could be regarded as an indirect acknowledgement of complicity.

[26]     We were taken in detail through the evidence of Megan Keen, Aleesha Turnball and Nathan Hastie.  It was undoubtedly reasonably equivocal.  Their accounts of what was said rather suggested that the appellant and Davis conceded involvement in the arson.  But when this evidence was tested as to the specifics of what they could remember was said, the witnesses were unable to provide detail.  Nonetheless the drift of their evidence as a whole might be thought to provide some general support for the Crown case and there is no doubt that the Crown relied upon it against the appellant (and Davis too for that matter).

[27]     The Judge dealt with this evidence in the following passages of his summing‑up:

[28]     I want to talk now about the reactions, the behaviour of the accused, to the statement of others.  Normally a witness is not allowed to give evidence about what another person said.  That is hearsay evidence.  There are exceptions to that rule.  One of those exceptions is that a witness may give evidence of what another person said if it was said in the presence of the accused and the accused accepts expressly or by implication the truth and accuracy of what was said.

[29]     In this case the Crown asks you to infer from the lack of response of both Davis and Thomson, in the presence of the third co-accused, Rouse, to Rouse’s claims that “they” had lit the fire.  Miss South says that Rouse did most of the talking but that the accused in this trial took no objection.  She says that this is significant in a group situation where there was bragging and laughing about the events.  She asks you to infer that if they were not involved then one might expect them to protest their innocence.

[30]     These statements were made in two context – statements made by Rouse in the presence of both accused as related by the witnesses ‑ Megan Keen, Aleesha Turnball and Nathan Hastie.  Keen saying that Rouse said “We lit the fire”.  Turnball said (at 127) that she remembered Rouse talking about it most.  In answer to a question from Miss South “Well what was being said by Robert?”, she replied that he did it, that he lit the fire and that the accused were going along with what he was saying.  She said:  “Not so much saying that they did it but that they were there and just saying, you know, just laughing about it and stuff.”  She refreshed her memory by reference to a statement she made to the police some days after the conversation she heard.  In reference to a question about matches or cigarette butts she said:  “They said they were flicking them into the pile of boxes.”

[31]     I should caution you that you should be careful about accepting such an inference when there could equally be other inferences that could be drawn.  For example, peer pressure.  Concern about Rouse referred to in their later statements to the police.  If an accusation is said in circumstances where you might expect an accused to protest “That’s not true, don’t include me”, then silence or laughter might be seen as an acceptance of truth.  But be careful.  You must first be confident of what was actually said and then if you are, then if it is a possibility that an accused would not or did not contradict Rouse for some reason, then it would be dangerous to treat silence or laughter as an acceptance of truth.  Apply the same test that I mentioned earlier.  If the evidence would support two conclusions of similar weight, then to choose between them would be to guess and you should not do this.

[28]     As well, when he summarised the Crown case he recorded the contention that:

[46]     Fifth, the conversation recited by the witnesses Megan Keen, Aleesha Turnball and Nathan Hastie may be regarded as admissions by each of the accused that they were active participants in the Wentworth Building fire, more particularly their inaction in relation to statements made by Rouse during those conversations.

As to the defence case, he recorded in [53] the appellant’s contention:

… He says the statements made by Rouse in Thomson’s presence cannot be regarded as any sort of admission on Thomson’s part and that it would be wrong or unfair to expect Thomson to speak out and disassociate himself from Rouse given his feelings about him.

[29]     The primary criticism of the summing-up is that the Judge did not qualify the references in [30] of his summing-up to the evidence of Megan Keen and Aleesha Turnball by reference to the concessions made by those witnesses in cross‑examination.

[30]     We agree that it may have been better if the Judge had not emphasised the passages of the evidence of these witnesses which provided support for the Crown without balancing those references with the concessions the witnesses made in cross‑examination.  But we do not see this as of any significance in the context of the summing up as a whole.  In [30] the Judge was referring to an aspect of the Crown case which he was going to discuss.  Having picked out what the Crown relied on, the Judge then in effect told the jury in [32] of his summing-up to be particularly cautious about the evidence.  That seems to us to have been an acceptable approach to the problem.

[31] We note that the evidence in question equally implicated Davis as well as the appellant. Given that Davis was acquitted, it may be thought that the jury elected to act on the advice given by the Judge in [31].

Similar fact evidence

[32]     At trial, evidence was led on a similar fact basis of the involvement of the appellant along with Davis in the Armagh Street arson.  This was criticised by Mr Green but on what seemed to us to be peripheral issues.

[33]     The Judge dealt with similar fact evidence in this way in his summing‑up:

[37]     All three admit to setting fires in the Armagh Street building and the Crown’s position is that it would be a remarkable coincidence if two of them stood back and played no part in lighting a fire in the Wentworth Building.  All three admit their involvement in one arson and the Crown asks you to accept it is likely that all three were involved in the other; that you should reject their statement and position that they took no part in the arson of the Wentworth Building.

[38]     That is for you to decide.  You should examine it in the circumstances of the two arsons.  Is there such a degree of similarity between the circumstances of the two and their proximity in time and place that puts the lie to the position of the accused to their statements that while they participated in one they did not participate in the other?  Does their admitted involvement in the Armagh Street arson make it likely that they lit fires in the Wentworth Building?  If so, then that is a factor to be weighed in the balance when you decide whether the Crown has proven beyond reasonable doubt that one or both of the accused are guilty of the Wentworth Building arson.  You will also have to weigh in the balance their denials of involvement in that arson and the extent and genuineness of those denials was stressed by their respective counsel in closing for them.  Indeed, to convict either of them you will have to be sure that the denial is untrue.

[39]     A word of caution!  The two accused have admitted a serious offence – the Armagh Street arson.  Do not convict them out of hand of another arson just because they are self-confessed arsonists.  That would be to allow prejudice to intrude and it would be unfair.  Further, when considering the significance of the Armagh Street arson you might keep in mind that it was the second arson in time.  Had it been the first then the significance of that might have been greater.  I will expand on that.

[40]     Had all three participated in the Armagh Street arson and then within a day to twenty-six hours moved on to the Wentworth Building then you might well disbelieve any one of them who says:  “We set fires at Armagh Street but when we moved on to the Wentworth Building only one of us set fires.  I did nothing.”  Your reaction might well be one of disbelief.  You admit you joined your mates in the first arson but deny being involved in the second.  That is unlikely you might think.  However, it might seem less unlikely when it is the other way around.  When they enter the Wentworth Building there is no track record for fire setting in the central City buildings that we heard about.  The assertion that Rouse was not joined in this fire setting until the second arson might be more readily accepted by you.

[34]     That seems to us to have been entirely correct and we can see no basis for any criticism of the Judge’s approach.

[35]     We might add that the two arsons are so closely connected in time and circumstance that it would have been entirely unreal for the case against the appellant and Davis to be presented to a jury which was ignorant of the Armagh Street fire.

The Judge’s directions on parties

[36]     In the summing-up the Judge discussed the concepts of aiding and abetting in these terms:

[20]     “Aid” means help or assist.  “Abet” means encourage.  To be guilty as an aider the Crown must prove beyond reasonable doubt that an accused did something to help the other or others and that he intended to help the other or others.  To be guilty as an abettor the Crown must prove beyond reasonable doubt that the accused uttered words of encouragement to the other or others or behaved in a manner that encouraged the other or others and that he intended to encourage the other or others.  A spectator or by‑stander who just happens to be present is not an aider or abettor.  Failing to do anything to extinguish the fire does not on its own amount to aiding or abetting the arson.

Later in the summing‑up the Judge posed the issue in the case in these terms:

[41]     The issue is: “Has the Crown proved that each accused actively participated in the Wentworth Building arson by joining the others in setting fires or by helping or encouraging the others to do so?”  You heard Miss South go through five factors that the Crown relied on and I do not intend to summarise in full what counsel said.  It will be reasonably fresh in your minds but I will highlight the main points.

[37]     The criticism from Mr Green was that the trial Judge did not tell the jury that encouragement must be communicated to the principal offender and that it must precede or be contemporaneous with the principal offending.

[38]     We do not accept this criticism.  We cannot see how one can encourage someone to commit an offence without that encouragement being communicated one way or another.  Further we cannot see how one can encourage the commission of an offence after it has been committed.

[39]     Interestingly counsel did not make any complaint about this direction at the conclusion of the summing-up.  Later, when the jury asked a question addressed to party liability to which the Judge responded by, in effect, repeating what he had said in the summing-up, counsel again did not raise any complaint. 

Result of conviction appeal

[40]     The appeal is dismissed.

The sentence appeal

[41]     The appellant was 19 at the time of the offence.  He has suffered throughout his life with a serious health condition which has led to him having difficulties at school and with social interactions.

[42]     The offending occurred when he was at a low ebb.  He had recently lost his employment.  He had taken up with Davis and Rouse and he had left home living in what would appear to be a transient way.  All his convictions (which include four offences other than the two arsons in issue here) occurred between 18 October and 20 October and were in the immediate aftermath of him having left home.

[43]     The Judge in his sentencing remarks surveyed extensively the background to the offending, the backgrounds of Davis and the appellant and relevant sentencing principles and authorities.  He took into account, as he plainly had to, the six year sentence imposed on Rouse.  He concluded his sentencing remarks in this way:

[44]     In relation to Armagh Street, given the high level of culpability of both of you having regard to the decisions and all the circumstances I have mentioned, I find a starting point of 4½ to 5 years is appropriate.  Giving you a discount for your guilty pleas and a further discount for your age, but balanced against that your culpability and the significant damage, I agree with the Crown’s assessment of an end point of three years imprisonment.  Three years imprisonment is imposed on each of you in respect of the Armagh Street arson.

[45]     Mr Thomson, as I have said, you have been found guilty in relation to the Wentworth Building fire.  The jury found you had a level of active participation or encouragement.  From the evidence the jury heard, the fire accelerated quickly and it is clear from the evidence that the Court heard that but for the quick response of the New Zealand Fire Service the consequences could have been greater.  I accept Mr Green’s submission that the totality principle applies, as I also accept that there needs to be a level of consistency with respect to Rouse.  In this respect I find myself unable to fault the logic and correctness of the Crown’s submission in relation to sentence that the start point in relation to that arson, taking into account the totality principle and participation in the Armagh Street, should be the same for you as it was for Rouse.  You will receive credit in the order of two years for your lower level of participation and the other personal factors that I have been addressed on with an end point sentence of six years imprisonment to be served concurrently.

[44]     Leaving aside the appellant’s conduct in the week in which the arsons were committed, he is a person of good character.  Following his arrest on the arson charges he was on bail for approximately 11 months and has not re-offended.  The six year sentence imposed upon him is undoubtedly severe. 

[45]     On the other hand, the seriousness of the offending is plain.  The economic losses associated with the Wentworth Building arson were massive, estimated at between $4 and $5 million.  Much of this related to the substantial business disruption caused by the fire and the damage to adjoining premises.  For some of those affected, the consequences of those losses were considerable.  That there were very substantial losses (although obviously not their quantification) must have been obvious to the appellant and his co-offenders.  But their response was to destroy another building by fire.  Financial losses associated with the Armagh Street arson were far less significant than those that were caused by the Wentworth Building arson.  But the repetitive nature of the offending is, in the totality of the case, a seriously aggravating feature. 

[46]     So too is the appreciable risk to life caused by such fires.  This is a factor which the appellant has been reluctant to acknowledge.  Lighting fires of this type necessarily endanger lives – the lives of firefighters and those who are in adjoining buildings and anyone who might be squatting in the building which is destroyed.

[47]     Against that background we regard an eight year starting point as reflecting the criminality involved in the two arson offences as appropriate.  That was the approach taken by Judge Moran in relation to Rouse and essentially adopted by Judge Crosbie. 

[48]     The Judge’s approach to the structuring of his sentence was a little unorthodox.  What we would have expected is the identification of a starting point sentence for the appellant’s offending (reflecting his culpability) and an allowance for mitigating factors (primarily the plea to the Armagh St arson but also his prior good character and his medical difficulties).  The Judge’s approach seems to have treated the appellant’s culpability as being the same as that of Rouse but then to have allowed a discount for a lower level of participation and personal factors.  This is an unusual approach to what constitutes a starting point.  Not mentioned in this exercise is the plea of guilty to the Armagh Street arson. 

[49]     Given the unorthodox structure of the sentencing exercise, we think it right to check the outcome against our own assessment of what would be appropriate.

[50]     There is no doubt that Rouse was the primary offender.  In fixing a starting point for the appellant, we think it appropriate to recognise his lesser level of culpability.  In the context of the case as a whole, we would be inclined to see the appropriate starting point as being approximately six years. 

[51]     From that starting point there must be an allowance for the mitigating circumstances including the appellant’s plea of guilty to the Armagh Street arson.  We see the appropriate allowance as being one year.  That produces a net sentence of five years imprisonment.

[52]     This differs by one year from the sentence imposed by the Judge, a margin which we think is sufficient to justifying invoking the appellate jurisdiction of this Court.

[53]     Accordingly we allow the sentence appeal and reduce the sentence imposed upon the appellant in relation to the Wentworth Building arson to five years imprisonment.

Disposition

[54]     The appeal against conviction is dismissed.  The appeal against sentence is allowed.  The sentence imposed in relation to the Wentworth Building arson is reduced to five years.

Solicitors:
Cameron & Company, Christchurch for Appellant
Crown Solicitor, Christchurch