Webb v The Queen - [2013] NZCA 666

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/2013
[2013] NZCA 666

BETWEEN	KELVIN MARK WEBB Appellant
AND	THE QUEEN Respondent

Hearing:	19 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	F D Steedman for Appellant M J Lillico and S de Silva for Respondent
Judgment:	18 December 2013 at 2:30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Background

The appellant Mr Webb was convicted after a jury trial on four counts of arson committed at the Foxton Racing Club over a one month period in late 2011. He was acquitted on a further charge of arson.[1] He was later sentenced by the trial Judge, Mallon J, to six years and eight months imprisonment.[2]
[1]Count 1 in the indictment.
[2]R v Webb [2013] NZHC 746.
Mr Webb now appeals against his conviction on three grounds:
(a)The verdict was unreasonable.
(b)The acquittal on count 1 was inconsistent with the verdicts of guilty on the four remaining counts.
(c)The Crown prosecutor misconducted himself by the use of emotive language.

Background facts

Mr Webb commenced working at the Racing Club at the end of August 2011 as its caretaker. He was provided with accommodation in the caretaker’s house on land owned by the Club.
Between 18 November 2011 and 18 December 2011, five fires were deliberately lit at the Club. Substantial damage was caused. The following table summarises the dates of the offences, the timing of the 111 calls[3] made to emergency authorities and the buildings involved on each occasion:
[3]It was not suggested Mr Webb made any of these calls.

Date

Time of 111 call

Location

18/11//11

11.54 pm

Grandstand

19/11/11

10.47 pm

First stable

23/11/11

10.52 pm

Second stable

27/11/11

4.43 am

Caretaker’s shed

18/12/11

1.08 am

Third stable

Mr Webb denied he was the perpetrator and the sole issue at trial was whether the Crown had proved he was. The trial proceeded on the common basis that the same person lit all the fires.

The Crown case at trial

The Crown’s case against Mr Webb was circumstantial. There was no evidence of motive;[4] there was no forensic evidence linking Mr Webb to the fires; there was no evidence as to how the fires were ignited; and no one observed Mr Webb lighting the fires. However, in each case, he was later present at the scene with others who had gone there after the fires had started and emergency services had been called. The circumstantial evidence the Crown relied upon can be summarised as follows:

Timing

[4]There was no evidence, for example, that Mr Webb’s bore a grudge against the Racing Club. There was evidence that he was well treated by the Club.

There had been no history of arson at the Club prior to Mr Webb’s arrival. Within two and a half months of his arrival the fires began on 18 November 2011 and continued over the one month period until the last of…

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 Webb v The Queen

Details

AGLC: Webb v The Queen [2013] NZCA 666
Case: [2013] NZCA 666
Decision Date: 18 December 2013 at 2:30 pm

CaseChat Overview and Summary

Kelvin Mark Webb appeals his conviction for four counts of arson committed at the Foxton Racing Club in late 2011. The Court of Appeal dismissed the appeal on three grounds: the verdict was unreasonable, the acquittal on one count was inconsistent with the convictions on the other counts, and the prosecutor's misconduct during the closing address. The court found the evidence sufficient to support the verdict, with the jury entitled to consider the cumulative effect of the circumstances. The acquittal on one count was rational, as the evidence was less compelling compared to the other counts. Although some of the prosecutor's language was excessive and emotive, the trial judge's direction to the jury to disregard feelings of sympathy or prejudice, along with the overall strength of the prosecution's case, meant that the remarks were not capable of causing a miscarriage of justice. The appeal against conviction is dismissed.

Orders