ARUN v REGINA

Court of Criminal Appeal (NSW)|2010-08-19|Before: Hall J, Davies J, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Davies J at 99

CATCHWORDS: APPEAL against conviction - judge alone trial - principles to be applied on appeals from verdict of a judge sitting without a jury - appellant convicted of offence under s.47 Crimes Act 1900 - throwing destructive substance (petrol) over female complainant - appellant did not hold a lighter or point of ignition - whether that was an "indispensable" link in the chain of reasoning towards guilt - whether evidence established that the appellant had the required intention to burn the complainant at the time of pouring the petrol - whether the finding that he did have such intention was the only rational or reasonable inference available from the evidence - the actions and utterances of the appellant in combination established to the requisite standard an intention to burn - the fact that he did not hold a lighter not an indispensable fact or link - Crown had discharged onus of proof - only inference to be drawn beyond reasonable doubt was that the appellant had that intention

Fleming v The Queen (1998) 197 CLR 250 Keir v Regina [2007] NSWCCA 149 Knight v The Queen (1992) 175 CLR 495 CASES CITED : Regina v Dink [2010] NSWCCA 74 Regina v Moffatt (2000) 112 A Crim R 201 Regina v Niass [2005] NSWCCA 120 Sultan v Regina [2008] NSWCCA 175

PARTIES: Umut ARUN v REGINA

COUNSEL: C: V Lydiard A: P Hamill SC

SOLICITORS: C: S Kavanagh A: S E O'Connor

IN THE COURT OF CRIMINAL APPEAL 2008/7975

McCLELLAN CJ at CL HALL J DAVIES J

WEDNESDAY 22 SEPTEMBER 2010 UMUT ARUN v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: The appellant appeals against his conviction following a trial in the District Court at Wagga Wagga (Norrish DCJ). 3 He was arraigned on 21 July 2009 for an offence of throwing a destructive substance (petrol) on the complainant with intent to burn her, contrary to s.47 of the Crimes Act 1900. 4 The trial commenced on 22 July 2009, the appellant being found guilty on 23 July 2009. 5 An offence under s.47 of the Crimes Act carries a maximum penalty of 25 years imprisonment. 6 The trial in the District Court proceeded by judge alone. Evidence was taken over two days culminating in addresses on 23 July 2009. 7 On 25 September 2009, the appellant was sentenced to a term of imprisonment of 2½ years with a non-parole period of 9 months to commence on 25 December 2009 and to expire on 24 September 2010. 8 The sentence was partially accumulated upon a fixed term sentence of 12 months commencing 25 September 2009 which was a sentence in relation to a related matter, namely, the offence committed by the appellant of reckless wounding which was dealt with by way of certificate under s.166 of the Criminal Procedure Act 1999. 9 The appellant is, accordingly, eligible for parole on 24 September 2010.

Facts 10 The appellant and his female victim ("the complainant") had been friends or associates or involved in some kind of relationship. On 30 November 2007, the complainant had been at the appellant's house and stayed overnight on 30 November 2007. 11 They both went out for cigarettes the following day and parted company for a time. At approximately 7.30 am, the complainant returned to the appellant's house in order to retrieve some property. A dispute then ensued, with the appellant denying her entry to the property. 12 The pair were heard yelling at each other in the front yard of the premises and blows were exchanged. The appellant punched the complainant in the face and she fell to the ground. The appellant went back into the premises and returned with a petrol container. He then poured petrol from the container onto the complainant. He made verbal threats to kill her or to burn her and further, as discussed below, he made a gesture with his hand. He then dragged the complainant in the direction of the house but, in the course of doing so, the complainant reached for a hose and the appellant then took the hose and hosed the petrol off her. A short time later, the police arrived and the appellant was arrested. 13 The complainant's evidence was that, when she asked to look inside the house for her keys, the appellant told her to "Fuck off". She said she did not know why he was upset with her. She said the appellant said, "If you jump that fence, I'll kill you". She said that she jumped the fence and he then ran over and punched her in the eye causing it to bleed. He then ran into the house. The complainant decided she would go to the doorstep and get her handbag. Her evidence was that the appellant then "Come out with the petrol and tipped the petrol over me". She called out, "Somebody call the fucking cops, please" and then went to the hose. According to her evidence, the appellant made a number of utterances including the statement, "I'll fucking kill you" three or four times and then said, "If I get you inside, I'm going to kill you". 14 The complainant was cross-examined to the effect that, when she woke up that morning, she had started to abuse the appellant and he had asked her to leave. She denied this. It was then put to her that she was finding excuses to come back into the house and that is why she had said her keys were inside and that the appellant had her lighter. 15 Certain of the evidence given by the complainant as to the events leading up to the petrol incident were contradicted to a degree by a witness, Mr Leonard Slater, a neighbour, and also, to some extent, by Ms Stacey Francis, also a neighbour. However, as discussed below, the trial judge accepted her as a reliable witness as to the material events. 16 On the question of the appellant's state of mind or intention at the time of pouring petrol over the complainant, it is necessary to examine the complainant's evidence as to the sequence of events that occurred at that time. In chief and in cross-examination, the complainant gave evidence as to a statement by the accused at that time to the effect that he was going to kill her when he got her "inside". In chief, the complainant gave evidence as follows (transcript, 22 July 2009, pp.7-8):- "Q. When he came with the petrol did you see what it was in, or? A. Sorry? Q. You said he came with some petrol. What as the petrol in? A. It was a red container. A red petrol container. Q. Was he saying anything at that time? A. He - just, 'I'll fucking kill you …'. Q. How many times would have had said that? A. Probably three or four. And, 'if I get you inside I'm going to kill you'. HIS HONOUR: Q. Sorry, what else did you say he said, if I get you -- A. 'If I get you inside, I'm going to kill you'. Q. Was that separate to the other things that were said, was it or part of what was said? A. That was part of what was going on, yeah. Part of what he was saying. CROWN PROSECUTOR: Q. Can you say how long it was that, between him pouring the petrol on you and him starting to hose you down? A. Probably a couple of minutes. Three to five minutes. Q. During that time, did he say or do anything? A. Seems to go so quickly, you know what I mean, when you're in that situation. No. He just - that's when he was saying, when he was hosing me down, 'If I get you inside I'll kill you' and then the - we could hear the police sirens, so they were coming -- …" 17 The complainant was cross-examined, inter alia, upon the events surrounding the pouring of the petrol over the complainant. The relevant segment of the cross-examination focused upon the sequence of events involving the complainant being dragged by the appellant towards the house, her being hosed down and the appellant's statement of killing the complainant if he got her "inside" (transcript, pp.12-19). 18 I set out below certain of the extracts from the evidence at those pages. The complainant was asked about her statement to police that, after having petrol poured over her, the appellant dragged her towards the front door of the house. It was put to her that "Q. … and I take it, therefore, the hose; is that correct?", to which the complainant answered in the affirmative. 19 A little later she explained that event as follows (pp.13-14):- "Q. That's not - can I ask you this; how can you say, 'I went to the hose' at any stage when, in fact, in your statement, you said he took you towards the hose? A. No, he was dragging me towards the house and as I've gone [sic] to direction to get to the water to hose myself off, then he helped hose me. … Q. Let me finish. Either he dragged you to the hose, as you've said in your statement, or you went there by yourself. It can't be both, can it? A. Well, as he was dragging me back in. I wanted to get to the hose. I was trying to get away from him. And then, he sort of realised that, and helped, and hosed me down. That's exactly what happened …" 20 The complainant a little later was then asked in cross-examination (p.17):- "Q. Now, can you tell us, it's correct isn't it, that the petrol was poured, and the next thing that happened is you were taken towards the hose and it was hosed off? A. No, that's not correct. Q. Well, tell the Court what you say -- A. He'd gone back inside, took the petrol can back inside, then he come back out and dragged me up the cement, inside the house, 'when I get you inside I'm going to kill you'. Then I was trying to make my direction towards the hose, then he helped hose me down. He hosed me down. That's exactly what happened. …" 21 A little later in cross-examination the complainant was asked (p.19):- "Q. And even though, then, you say he poured petrol on you, you still tried to get back into the house? A. No, I didn't try to get back into the house at all. HIS HONOUR: Q. No, no, in fairness, what the witness -- WITNESS: I didn't try to get back into the house. HIS HONOUR: Q. No, just pause for a moment, ma'am. What the witness said was that after the petrol was poured on her and Mr Arun went in the house, she tried to get to the hose, and then he came back and grabbed her and was pulling her towards the house, saying 'when I get you inside, I'm going to kill you' - this is her evidence - and then he hosed her down. WELLS: Thank you, your Honour. …" 22 In the written submissions for the appellant, it was contended that the complainant did not allege that he threatened to burn her. It was emphasised that the complainant gave no evidence that she saw the appellant with a lighter in his hand at any stage. 23 In relation to the witness, Ms Francis, the trial judge expressed the opinion that she was "a very impressive witness". Ms Francis said that she knew the complainant from school but had not had any association with her since they left school. She said she was woken up on 1 December 2007 by an argument between two people. She heard a lot of swearing and the complainant was saying, "Give me my fucking lighter" and the appellant was telling her to "fuck off". There was a lot of swearing and name calling. She said that the appellant threw a rock at her and that "they were punching each other but she was more or less self-defence". After the complainant was knocked to the ground, Ms Francis said:- "… [he] went inside and [the complainant] followed him. They then met at the front door. He was holding a red can and threw it in - she was there, at the front door with him; he went up with the can … went up into her face and then over her head." 24 At this time, she indicated a pouring motion. 25 At that stage, Ms Francis said that the appellant said, "I'm going to torch you. I swear on my religion, I'm going to kill you … I'll light you up". 26 Ms Francis then called the emergency "000" number. 27 The transcript of the emergency call (Exhibit J and J-1) recorded Ms Francis, inter alia, stating "… he had a lighter in his hand. He didn't light it or anything, but he had it in his hand". In cross-examination, it was put to her:- "Q. But you didn't actually see a lighter in his hand at all? A. Couldn't see the lighter." 28 Ms Francis agreed that she had drawn a conclusion of having seen a lighter in the appellant's hand. 29 In relation to the "000" call, the trial judge limited its use pursuant to s.136 of the Evidence Act 1995 and did not take it into account for a hearsay purpose, but as evidence relevant to the witness' credibility. 30 Ms Francis gave evidence that, before the appellant and the complainant went into the house, she saw the appellant drag the complainant to the hose and thereafter hose her down. 31 The Crown called Detective Day, who gave evidence of finding a red container which contained petrol. The container was tendered as was a certificate establishing that the substance in it was petrol (Exhibits E and F).

The verdict and reasons of the trial judge 32 In his reasons given on 24 July 2009, the learned trial judge identified the issues and made relevant findings including factual findings in relation to the evidence of the complainant and the other witnesses called at trial. 33 His Honour identified the relevant elements of the offence as including:-

(1) Proof that the accused acted maliciously, that is, that he acted without lawful excuse and deliberately.

(2) That he threw upon the complainant a destructive substance, namely, petrol and that he did so with intent to burn her. The word "maliciously" was taken as requiring proof by the Crown that the appellant acted deliberately and, in relation to the intention to burn the complainant. His Honour took that to mean not that he intended by simply placing the petrol upon her to burn her skin, but that by placing the petrol upon her, he intended in some way to ignite the petrol such as to cause what would be burns to her by the petrol upon her person by that ignition. 34 The trial judge then noted that the conduct of the case turned upon "a number of critical issues" (p.2), namely:-

(1) That there was an issue as to whether the accused acted maliciously, that is, acted without lawful excuse and deliberately.

(2) Whether the accused had the relevant intent required to be proved by the Crown, that is, the intent to burn the complainant. 35 His Honour noted that the Crown case to prove the guilt of the appellant involved a mixture of direct and circumstantial evidence. Ultimately guilt was to be inferred from that combination of direct and circumstantial evidence. The direct evidence included the evidence of the complainant and eye witnesses, in particular, Ms Francis who he described as "the most critical of the independent witnesses" (p.2). His Honour noted that, where the drawing of inference of guilt from a combination of direct and circumstantial evidence arose, then an inference of guilt must be the only inference that could be reasonably drawn. 36 The direct evidence also included the exhibits including, in particular, the red container the contents of which had been tested. 37 The trial judge noted that, as the appellant was a person without prior criminal convictions, he was prepared to take into account the evidence of good character as evidence relevant to the credibility of what could be taken to be his denials, if they could be construed as such, in his brief conversations with police. 38 The trial judge noted that the appellant did not give evidence in particular in relation any defence of self-defence. His Honour noted in that respect that he was required to consider the circumstances as the accused perceived them and, in particular, any of his attributes that might be divined from the evidence that might affect his perception.

(1) Findings as to events before the pouring of petrol 39 Following an analysis of the evidence in relation to events before the petrol pouring, the trial judge made a number of findings, including the following:-

(1) That after a lengthy period of abuse and screaming, the appellant left his house and confronted the complainant at or near the fence line.

(2) The complainant was told by the accused that if she jumped the fence he would, in some way, stop her from coming onto the property. Notwithstanding that, she did jump the fence.

(3) A struggle then ensued in which there was an exchange of blows. The struggle was clearly an uneven one (as between the appellant and the female complainant). The appellant ended up "getting the better of her" (pp.12-13).

(4) The appellant struck the complainant to the face with a punch which knocked her to the ground. The blow caused significant or substantial injuries. When examined at the hospital, the complainant had a black right eye, a deep 1.5 centimetre laceration to the subcutaneous tissue over the right eyebrow, shallow laceration to the nose and a small abrasion to the left cheek. X-rays determined that there was a blow-out fracture involving the right orbital floor. 40 The trial judge observed that one could not regard the punch to the face such as to cause the injuries as being in any shape or form a proportionate or reasonable response (p.14).

(2) Findings as to the petrol pouring and related events 41 The trial judge found that, after the blow delivered to the face of the complainant, the appellant went into the house and came out shortly afterwards emerging through the front door with the red container (Exhibit E) containing petrol. His Honour stated (p.15):- "… I am satisfied beyond reasonable doubt that outside the front door, somewhere in the vicinity of the porch or the steps to the porch, the accused lifted up the red container and in the manner demonstrated by Ms Francis, deliberately poured the petrol over the complainant, over her head, over her face, and it ran into her eyes and into her ears." 42 The trial judge noted that, having poured the petrol over the head of the complainant, the complainant stumbled around trying to get the petrol out of her eyes. At this time, she was bleeding from the eye and could not see. The complainant was screaming out for assistance and was unable to defend herself. Ms Francis, as earlier noted, heard her calling for help. The trial judge stated (p.16):- "… I am satisfied that, at the time of pouring the petrol over her head, or immediately afterwards, the accused said to the complainant the words, 'I'm fucking going to kill you' or 'I'm going to kill you'. He said, 'I'm going to light you up, I'm going to torch you'." 43 The trial judge also stated (pp.16-17):- "… I accept the version of Ms Francis beyond reasonable doubt that the accused was gesticulating with his hand held up as if he held some sort of lighting device such as a cigarette lighter in his hand during the time that he was saying words such as 'I'm going to kill you', 'I'm going to torch you', 'I'm going to light you' or 'Light you up', or words to that effect. It was a measure of the honesty of Ms Francis that she conceded that she did not see a lighter. It is clear that she drew an inference that he had a lighter in his hand from the fact that he had clearly poured something over the complainant, and that she was in distress and that he was threatening to set her alight in so many words." 44 The trial judge then noted that the complainant was stumbling around and the accused followed her. He noted that, at some point in the course of these events, he had gone inside and dumped the red container and he then returned (p.17):- "… Then he grabbed her by the hair and dragged her back by the hair towards the front door. This was seen by Ms Francis as well …" 45 The trial judge then made findings in relation to the issue of "intent" stating (p.19):- "The words uttered by the accused are available in assessing the intention of the accused at the time of the pouring of the petrol. Clearly, the terms of the charge require me to be satisfied of what was the intent of the accused as pleaded by the Crown at the time that the accused maliciously did what was alleged against him, and that is throw upon [the complainant] a destructive substance, namely, petrol. If he had thrown the petrol over her with some other intention and then subsequently formed an intention to burn her, then he would be entitled to be acquitted. However, the combination of deliberately pouring the petrol over her in the manner described by Ms Francis and the various threats that he made to the complainant, and the gestures he made, including the gesture of threatening to light the petrol are, in my view, very eloquent testimony as to the deliberateness of his conduct and his intention at that time. I appreciate there is no direct evidence that the accused actually had a lighter in his hand, in the sense that Ms Francis does not say she saw a lighter and [the complainant] makes no reference to it and the police have not recovered a lighter. I have taken that matter into account. He may have had the intention even if a lighter was not in his hand." 46 The trial judge then continued (pp.19-20):- "In relation to the issue of the accused hosing the complainant down, I have noted in the course of my summary of the evidence that, having dragged her by the hair towards the house as the complainant concedes, the accused hosed her down. She described it as being a somewhat rough procedure but, be that as it may, that was done by him. I am prepared to accept as the submission was put that the hosing down of the complainant is inconsistent with an intention to burn the complainant. But, in my view, in the circumstances of this matter it is only consistent with an intention not to burn the complainant from the time that he grabbed her by the hair at the very earliest. I am unable to conclude without any other evidence to assist me whether he had an intention to hose her down when he grabbed her by the hair or whether he formed that intention as he dragged her back by the hair. In any event, by the time he hosed her down, I am satisfied that such intention I have been persuaded he had to burn her, had dissipated." 47 The trial judge then referred to the matters raised on behalf of the appellant. One submission was that the appellant's actions were not deliberate and could possibly have been in self-defence. A further submission made on behalf of the appellant was that the trial judge could not conclude that the only inference to be drawn from the evidence, beyond reasonable doubt, was that the appellant had an intention to burn. 48 The trial judge then referred to a further matter argued on behalf of the appellant (p.21):- "What was specifically put to the Court was that it was at least a reasonable possibility that the pouring of the petrol, if there be a pouring of the petrol, over the complainant, and I assume, although this was not specifically addressed, the verbal threats, if satisfied they were made by him, was the only way that the accused could act to get the complainant to come to her senses and/or to leave the premises. This aspect of the matter perhaps raised an alternative submission expressed in terms that really are included within what I have just outlined, that the accused's conduct was equally consistent with him attempting to get her away from or out the premises. I am not satisfied that it was a reasonable possibility that either of these inferences or conclusions could be drawn from the evidence available. In fact, the evidence is overwhelmingly to the contrary." 49 The conclusion reached by his Honour included the fact that the Crown had clearly negatived the proposition that the appellant's actions constituted a reasonable response on his part as he perceived them. On this aspect, his Honour referred to a number of matters by way of possible response by the appellant. These included the fact that the appellant could have rung the police, that the premises being his, it was open to him to have closed the front door and have left through the back door and sought to distance himself from both the complainant and the property. Even if he had come back out the front door with the petrol he could then have made a threat to pour it over her if she did not leave. Alternatively, the appellant could have poured the petrol over her and then told her to leave. The trial judge then noted (pp.22-23):- "But, of course, none of these hypotheses emerge from the evidence. His conduct and his statements from the time that he brought the petrol container from inside the house till the time he grabbed her by the hair were entirely consistent with both deliberate conduct on his part … and an intention to burn her as the charge requires. There was absolutely no reason for him to say the words he would 'kill her', he would 'light her' or 'light her up' or 'torch her'. There was no reason consistent with the possibilities that were put to me by his counsel in her eloquent manner, for him to make gestures as seen by Ms Francis. Of course, I suppose it could be argued that whatever his intention he was not serious about what he was doing, as distressing as this might have been for the complainant he was doing this without having formed any particular intent of any type. There is no reasonable basis for coming to that conclusion. The accused has, as I have said, not given evidence to suggest to me that he poured the petrol over her with no intent, or to suggest that he was not serious in his actions. In fact, any bystander observing what happened having regard to the accounts given would believe he was serious. The complainant clearly thought he was serious. Ms Francis clearly thought he was serious because she was prepared to make the 000 call. There is no suggestion in any out of court statements the accused made of course, that he was not serious, bearing in mind, of course, I concluded that he made no admissions in relation to the matter."

Principles concerning conviction appeals from a verdict of judge sitting without a jury 50 Before turning to the grounds of appeal, I will deal with the function of this Court on appeal from a verdict of a judge alone. 51 In the course of the hearing of this appeal, the presiding judge raised a question as to the relevant principles governing an appeal against conviction from the verdict of a judge sitting without a jury. Subsequent to the hearing and by leave of the Court, further written submissions on that question dated 17 August 2010 were provided by the Crown and written submissions were provided by Mr Hamill SC, on behalf of the appellant, dated 23 August 2010. 52 The principles governing a conviction appeal from the verdict of a judge sitting without a jury were reviewed by Keir v Regina [2007] NSWCCA 149 (Hunt AJA, Johnson and Latham JJ). Johnson J, with whom Hunt AJA and Latham J agreed, referred to the observations made as to the function of the Court of Criminal Appeal, in an appeal against conviction from a trial on indictment by judge alone in Regina v Moffatt (2000) 112 A Crim R 201 at [3]-[5]. In that case, Wood CJ at CL (Foster AJA and Adams J agreeing) stated:- "The Court of Criminal Appeal is a court of error, and does not proceed by way of re-hearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic , CCA (NSW) (26 February 1996, unreported). Where, as in the present case, the relevant ground is that the verdict, or more accurately, the finding on the question of guilt by the trial Judge (s.17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s.6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant : MM (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event, error permitting the substitution of a verdict of acquittal is established: Coombe , CCA (NSW) 24 April 1997 at p.11 and p.12. What is required in this regard is attention to the matters identified in Fleming (1998) 158 ALR 379, Giam (1999) 104 A Crim R 416 and Gipp (1998) 194 CLR 102." (emphasis added) 53 The provisions of s.6(1) of the Criminal Appeal Act 1912 are in the following terms:- "6(1) The court on any appeal under s.5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 54 Johnson J in Keir (supra) at [19] noted that Wood CJ at CL in Moffatt (supra) referred to the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250 where it was observed, at 256, [12], in the context of an appeal from a trial on indictment by judge alone, that use of the potentially confusing phrase "unsafe and unsatisfactory" to cover the several elements in s.6(1) of the Criminal Appeal Act is "liable to mislead" and there is no substitute for giving attention to the precise terms in which s.6(1) is expressed. It was also noted in Keir (supra) that, with respect to the interaction of s.6(1) of the Criminal Appeal Act and s.133 of the Criminal Procedure Act (then s.33 of that Act), the High Court said in the unanimous judgment at 262, [26]:- "Thirdly, the first limb of s.6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s.33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'?" 55 Accordingly, in the present case, the grounds of appeal raise the question as to whether the verdict is unreasonable or cannot be supported, having regard to the evidence. Attention, in particular, is to be given to the question as to whether the only rational or reasonable inference available from the evidence as to the appellant's intention was that found by the trial judge. 56 This Court is required to make its own independent assessment of the evidence. As noted in Keir (supra) at [20], in undertaking that task, the credibility findings of the trial judge with respect to the witnesses remain significant: Fleming (supra) at 266-267, [44]-[46].

Grounds of appeal 57 In the Notice of Appeal dated 10 June 2010, the appellant raised three grounds as follows:- "(1) The verdict is unreasonable and cannot be supported having regard to the evidence. (2) The learned trial judge erred in failing to make a finding in relation to a critical factual matter, namely, whether the appellant had in his possession a cigarette lighter. (3) The learned trial judge erred in failing to treat the question of whether the appellant had in his possession a cigarette lighter as an indispensable link in the chain of circumstantial reasoning leading to a conclusion that the appellant had the specific intention to burn the alleged victim." 58 Mr Hamill, Senior Counsel for the appellant, observed that the grounds of appeal were closely related and were, accordingly, argued together.

Appellant's submissions 59 Mr Hamill relied upon the appellant's outline of submissions. Reliance was also placed upon the Appellant's Submissions in Reply and, as earlier indicated, upon the Submissions on appellate function in judge alone trials dated 23 August 2010. 60 It was contended for the appellant that, on all of the evidence, it was not reasonably open to come to a conclusion that the specific intention required for an offence under s.47 of the Crimes Act, namely an intention to burn the complainant, was established beyond reasonable doubt. 61 Reference was made to the initial threat by the appellant to the complainant that he would kill her if she jumped over the fence and the subsequent threat to kill as having been "conditional upon getting her into the house" (paragraph 3.5 of the Appellant's Outline of Submissions). 62 It was submitted that the precise words used by the appellant, and the timing of the threats "were far from clear" (paragraph 3.5 of the above submissions). 63 Reliance was placed upon the fact that none of the witnesses saw the appellant with a lighter in his hand at the relevant time. 64 It was also contended that the judge made no clear finding as to whether or not the appellant was holding a lighter. 65 It was contended that, if the appellant made any gesture without a lighter in hand, the inference (or reasonable possibility) that his intention was to frighten the complainant to get her to leave was a very strong one. The possibility that his intention was to frighten - as opposed to a specific intention to burn - could not be excluded beyond reasonable doubt. 66 It was argued that, as petrol needed to be ignited to be destructive, the question of whether the appellant had the ability to ignite the petrol at the relevant moment was critical. Reference was made to the discussion of petrol as an inflammable agent and the specific act required to ignite it in the sentencing decision in Regina v Dink [2010] NSWCCA 74. 67 It was contended that, in the circumstances of the case, the issue as to whether appellant had a lighter in his hand was an indispensable link in the chain of reasoning towards guilt. In the Appellant's Submissions in Reply reference was made to the High Court's decision in Knight v The Queen (1992) 175 CLR 495, it being submitted that, if there was any other intention "consistent" with the evidence, the appellant was entitled to be acquitted in respect of the charge under s.47 of the Crimes Act. 68 The trial judge, it was submitted, did not express or adopt such a reasoning process. The failure to do so was the substance of Ground 3. 69 It was contended that the verdict of guilty should be quashed and a verdict of not guilty should be substituted.

Crown's submissions 70 In the Crown's written submissions, issue was taken with the contention made on behalf of the appellant, namely, that the possibility that the appellant's intention was to frighten - as opposed to a specific intention to burn - could not be excluded beyond reasonable doubt. 71 The Crown observed that the issue of the appellant's intention or state of mind at the relevant time was a matter to be established by process of inference. It was argued in that respect that, even if the inference was reasonably open that it was the appellant's intention to frighten (which the Crown did not concede), there was no principle in the criminal law that the inference to be drawn had to be one most favourable to the appellant. In this respect, reliance was placed upon the observations of Spigelman CJ in Sultan v Regina [2008] NSWCCA 175 at [24]. 72 The Crown responded to the submission for the appellant by contending that it was being asserted on his behalf that his Honour should have given himself a circumstantial evidence direction to the effect that he would have had to have been satisfied beyond reasonable doubt that the appellant had a lighter in his hand because "whether the appellant had a lighter in his hand was an indispensable link in the chain of reasoning towards guilt". 73 The Crown submitted that the fact of the lighter being in the hand of the appellant at the relevant time was not an indispensable link in the chain of reasoning towards guilt. It relied, inter alia, upon the evidence of the utterances of the appellant including the statement by him to the complainant "when I get you inside I'm going to kill you" and that this was said before the action of hosing her down occurred. I have earlier set out the complainant's evidence on this aspect of the matter. I note here the Crown's reliance upon the observations of Hunt AJA (as his Honour then was) in Regina v Niass [2005] NSWCCA 120 at [9]. In that case, the appellant had been charged with one count of break, enter and steal. One issue was whether or not the appellant knew that a factory was to be broken into by two others and a piece of equipment stolen. He had been asked to assist in transporting the stolen item, claiming that he was unaware of a plan by the other participants to steal the equipment. Hunt AJA stated:- "9. The appellant has characterised the Crown case as 'principally a circumstantial one', and indeed he had the benefit of a circumstantial evidence direction at the trial. It is, however, wrong to characterise the Crown case in that way. There was direct evidence as to the breaking, entering and stealing by the other men involved and of the appellant's participation in a joint enterprise of some kind by providing the transport to take the bobcat away. There was no direct evidence as to the state of mind required on his part, that he knew that the joint enterprise was a criminal one. That state of mind had to be proved by way of inference, but that did not make the case a circumstantial one. There is no need to give a circumstantial evidence direction where the only inference to be drawn relates to the accused's state of mind : La Fontaine v The Queen (1976) 136 CLR 62 at 72-72, 81, 85; Regina v Tillott (1991) 53 A Crim R 56 at [50]. 10. However, where the issue to be proved by inference is an element of the crime charged - as it was here - the required inference must nevertheless be the only rational or reasonable inference available from the evidence : Knight v The Queen at 502-503, 509-510 …" (emphasis added) 74 It was submitted for the Crown that on all the evidence it was reasonably open to this Court to come to the conclusion that the specific intention required for an offence under s.47 - an intention to burn the complainant -had been established beyond reasonable doubt.

(1) The alleged failure of the trial judge to make a finding as to whether the appellant had a lighter in his hand at the relevant time 75 As noted above, it was submitted for the appellant that the trial judge made no finding about whether the appellant had a lighter in his hand at the relevant time:- "… It is submitted that the failure to make a finding in this regard constituted a significant legal error which caused the trial to miscarry. This is the substance of Ground 2 …" : Appellant's Outline of Submissions, paragraph 3.13 76 I do not believe that there is any substance to this submission. 77 On a number of occasions, the trial judge referred to the evidence on the issue in a number of passages, in particular:-

(1) That a measure of the honesty of Ms Francis was that "… she conceded that she did not see a lighter" (p.17).

(2) The trial judge's statement, "I appreciate there is no direct evidence that the accused actually had a lighter in his hand in the sense that Ms Francis does not say she saw a lighter and [the complainant] makes no reference to it and the police have not recovered a lighter. I take that matter into account. He may have had the intention even if a lighter was not in his hand" . 78 It is clear that the trial judge proceeded upon the basis, as indicated by the evidence, that, at the material time, the appellant did not have a lighter in his hand. Accordingly, I reject the submission that, in relation to the question whether a lighter was in the appellant's hand, the trial judge did not come to a clear finding on that issue and act on that basis.

(2) The significance of the absence of a lighter 79 As also noted above, it was contended for the appellant that, in the circumstances of the case, whether the appellant had a lighter in his hand was said to be "an indispensable link in the chain of reasoning towards guilt". It was a matter to which the Court had to be satisfied beyond reasonable doubt in order to reason that the accused had an intention to burn the complainant. The contention was that the trial judge neither expressed nor adopted such a reasoning process and that the failure to do so was the substance of Ground 3. In his oral submissions, Mr Hamill relied in support upon the decision of the High Court in Knight (supra) stating:- "We attempt to suggest that that is quite analogous to the circumstances of the present case when the issue of did he or did he not have a lighter in his hand, thereby the means to ignite the petrol." 80 I do not, with respect, consider that the holding of a lighter was an indispensable link in the chain of reasoning towards guilt. The facts as found by the trial judge, for reasons elaborated upon below, in combination were compelling on the issue of the appellant's intention at the material time. 81 On this appeal, the following propositions and factual matters are to be taken into account:-

(1) The trial judge correctly stated the issues for determination and the principles by which they were to be determined (at pp.5-6). There has been no criticism in relation to those matters on the present appeal.

(2) His Honour proceeded upon the basis that, if there was a reasonable possibility that the accused did not have the intention required to be proved by the Crown, then the accused must be acquitted.

(3) The trial judge identified what he termed "the critical period of time" in which the relevant events occurred. His Honour also noted that the terms of the charge required him to be satisfied of what was the intention of the accused as pleaded by the Crown at that time, that is, when the accused maliciously did what was alleged against him (namely, pour a destructive substance upon the complainant, being petrol). 82 The complainant was the principal witness and her version of events in relation to the critical period of time was, in his Honour's opinion, "strongly supported by the independent witness, Ms Francis". Such inconsistencies as arose in her evidence as referred to by the trial judge were not in his assessment material. Ms Francis, in turn, as earlier noted, was found to be "a very impressive witness". 83 In the escalating aggression and violence by the appellant, his Honour had regard to the following matters:-

(1) The complainant, in the early stages, had engaged in a tirade of abuse towards the appellant. The appellant then confronted her at or near the fence line. Despite being told by the appellant that he would stop her from entering the property, she nonetheless jumped the fence onto his property.

(2) A struggle ensued with blows being exchanged culminating with the appellant forcibly striking the complainant with a punch to the face knocking her to the ground and causing substantial injuries, details of which have been particularised above. The trial judge understandably found that this constituted a disproportionate response by the appellant.

(3) Soon after, the appellant emerged from the house armed with the red container of petrol and somewhere in the vicinity of the porch or the steps to the porch he lifted up the container, in the manner described by Ms Francis, and deliberately poured the petrol over the complainant's head and face.

(4) At the time of pouring the petrol over the complainant's head, or immediately afterwards, the appellant made a series of threatening statements including those to the effect that he was going to kill the complainant, in particular, would kill her if he got her inside the house, and was going to "torch" her. The trial judge accepted Ms Francis' evidence that, at this time, the accused was gesticulating with his hands held up as if he held some sort of lighting device such as a cigarette lighter in his hand.

(5) Following the dousing with petrol, the complainant stumbled around and the appellant followed her. The appellant went inside the house and returned the container and then came outside the house.

(6) He then grabbed the complainant by the hair and dragged her back towards the front door of the house. This action, it is noted, is consistent with the appellant being intent on dragging the complainant to or inside the house. 84 In relation to this last-mentioned point, I do not, as was submitted on behalf of the appellant (see paragraph [61] above), consider that the subsequent threat by him to kill was "conditional" upon the applicant getting the complainant into the house. Whilst there were references in the evidence to that threat made after pouring the petrol being "when" and "if" the appellant got the complainant into the house, the action of the appellant in dragging the complainant by the hair towards the front door could not, in my opinion, be said to have been conditional action in any relevant sense. The appellant was clearly pursuing that action in earnest consistent with the threat made. 85 The trial judge concluded, as noted above, that the appellant had the requisite intention even though a lighter was not in his hand. In arriving at that conclusion, the judge had regard to "the combination" of facts and events. These included the deliberate pouring of the petrol over the complainant, the particular threats that he made to the complainant and the gestures that he made, including a gesture of threatening to light the petrol. These, his Honour concluded, were all "… very eloquent testimony as to the deliberateness of his conduct and his intention at that time". In forming his conclusion, the trial judge expressly had regard to the fact that there was no evidence that the appellant had a lighter in his hand at the time. It was the combination of the above circumstances against the background of an escalating feud and an earlier threat to kill that the trial judge arrived at the conclusion he expressed. 86 In analysing the combination of circumstances established in evidence, it was not, in my opinion, either an essential or indispensable fact that the appellant was holding a lighter in order for a conclusion to be formed, to the requisite standard, that he had formed the intention at the time of pouring the petrol over the complainant to burn or "torch" her. 87 In arriving at the conclusion expressed by the trial judge (that is, that the appellant had formed the requisite intention, as distinct, for example, from merely frightening the complainant), it was open to him to have regard, inter alia, to the fact that the appellant had, a very short time before pouring the petrol, inflicted grievous bodily harm upon the complainant, in particular, a fracture to the right orbital area of the complainant's face. 88 That level of violence took the feud to a new level, certainly beyond conduct merely designed to frighten the complainant. 89 It was, of course, important for the trial judge to have regard to the whole of the context of the feud as it had developed and escalated in reasoning to the conclusion as his Honour did on the question of intention. To have done otherwise would have omitted relevant factual matters. His Honour did not err in that regard but rather analysed the nature and sequence of events directly relevant to the appellant's state of mind including the significance of the presence or absence of a lighter, the gestures, the threats and other conduct of the appellant. 90 The trial judge additionally had regard to the series of actions by the appellant including his action after pouring the petrol, of grabbing the complainant by the hair and dragging her towards the door of the house before stopping and subsequently hosing her down. His Honour was clearly alert to the question as to whether the latter action of hosing the appellant down bore upon the appellant's earlier state of mind at the time of pouring the petrol. He determined that it was relevant as showing the later or subsequent dissipation of the intention. 91 Having considered the matters argued on behalf of the appellant, the trial judge concluded that he was not satisfied as a reasonable possibility that either of the suggested inferences or conclusions could be drawn from the evidence available. His Honour stated (p.21):- "In fact, the evidence is overwhelmingly to the contrary. " 92 After referring to the other suggested possibilities, he added:- "… But, of course, none of these hypotheses emerge from the evidence. His conduct and his statements from the time when he brought the petrol container from inside the house till the time he grabbed her by the hair were entirely consistent with both deliberate conduct on his part, voluntary conduct on his part, and an intention to burn her as the charge requires." 93 The trial judge additionally specifically evaluated, independently of the specific suggested alternative possibilities, the question as to whether the Crown had discharged its onus of proof on the basis that the only inference to be drawn from the evidence beyond reasonable doubt was that the accused had an intention to burn (pp.20-21). 94 His Honour considered whether the various statements of the appellant to the effect that he would "light" her up or "torch" her were made with any apparent reason or purpose other than that the words in the statements conveyed. His Honour concluded that there was no reasonable basis for concluding other than that the appellant's acts, words and gestures indicated that he acted with the requisite intention. 95 The independent assessment of the evidence by this Court, as earlier stated, must of course, take into account the evidence given by the complainant on the material events, she having been accepted by the trial judge as a reliable witness. It must also bring into account the evidence of Ms Francis. 96 On an assessment of the evidence, the findings made by the trial judge and the process of reasoning followed by his Honour, I do not consider that the fact that the appellant did not hold a lighter at the time he poured petrol over the complainant is a matter, when taken in conjunction with the evidence of the appellant's actions and utterances establishes that the verdict is either unreasonable or cannot be supported by the evidence. On the contrary, I consider that the finding on the question of guilt by the trial judge is one that was both reasonable and rational and was well supported by the evidence. It was, by my assessment, the only rational or reasonable conclusion available on the evidence. 97 I have concluded that the appeal must fail. 98 I, accordingly, propose that the appeal be dismissed. 99 DAVIES J: I agree with Hall J. **********

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Judgment (41 paragraphs)

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Cases Cited (11)