Duarte v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2020-10-23|Before: Hoeben CJ, Harrison J, Bellew J

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
HARRISON J: I agree with Bellew J and his proposed answers to the questions.
BELLEW J: At the request of Adelino Duarte (the applicant) a case has been stated to this Court by his Honour Judge Haesler SC, a judge of the District Court of NSW, pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). Three questions have been submitted for this Court's determination.
Section 5B(2) requires that any question of law be submitted not later than 28 days after the end of the relevant appeal proceedings, or within such longer period as this Court may allow. It is common ground between the parties that the applicant requires an extension of time. The circumstances leading to the delay in bringing the proceedings are set out in an affidavit of Dawoud Ayache, solicitor, of 28 August 2020 which was read without objection. The respondent did not submit that any prejudice had resulted from the delay, which has been fully explained in Mr Ayache's affidavit. An extension of time should be granted.

The circumstances of the offending and the charges

On 20 June 2019 [1] a break-in occurred at a metal recycling yard at Unanderra. An LPG cylinder was stolen and a site office at the yard was subsequently destroyed by fire. [2] The applicant was seen by police driving a vehicle close to the yard, and attempted to escape. He was arrested and charged with the following offences: 1. entering inclosed premises without lawful excuse, contrary to s 4(1) of the Inclosed Lands Protection Act 1901 (NSW) (the inclosed lands charge); [3] 2. stealing the LPG cylinder, being property of a value of less than $2,000.00, contrary to s 117 of the Crimes Act 1900 (NSW) (the Act) (the stealing charge); and 3. intentionally or recklessly destroying property of a value in excess of $15,000.00 by fire, contrary to s 195(1)(b) of the Act (the property charge). [4]
The terms of the property charge were as follows: At 8:56pm on 26/06/2019 at Unanderra [the applicant] did intentionally or recklessly destroy by means of fire certain property, to wit, site office containing kitchen etc the property of Gayne WILLIANSON [sic]. [5]

The procedural history

The applicant was convicted in the Local Court of all three offences. The following sentences were imposed: 1. the inclosed lands charge - a fine of $500.00; 2. the stealing charge - 18 months' imprisonment; 3. the property charge - 2 years' imprisonment. [6]
The applicant lodged an appeal to the District Court against the convictions and sentences imposed for all three offences, pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). [7] On 14 April 2020 he withdrew the appeals against the convictions for the inclosed lands charge and the stealing charge but maintained his appeals against each of the sentences imposed for those offences, as well as his appeal against the conviction for the property charge. [8]
On 23 April 2020 the appeal against the conviction for the property charge was dismissed by the primary judge. [9] On 18 June 2020 his Honour heard and determined the three sentence appeals brought by the applicant as follows: 1. in respect of the inclosed land charge, his Honour recorded a conviction but imposed no further penalty in accordance with s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW); 2. in respect of the stealing charge, his Honour gave an indicative sentence of 8 months' imprisonment; and 3. in respect of the property charge, his Honour gave an indicative sentence of 1 year and 4 months' imprisonment.
His Honour proceeded to impose an aggregate sentence of 1 year and 10 months' imprisonment with a non-parole period of 11 months' imprisonment. [10]

The reasons of the primary judge in respect of the property charge

In the face of what the primary judge described as being "fairly overwhelming evidence", the applicant denied being present at the recycling yard. The evidence to which his Honour referred included the fact that the LPG cylinder which had been taken from the yard was found in the back of the applicant's vehicle. [11]
CCTV footage taken from a camera located opposite the yard depicted the following: [12] TIME EVENT 8:33:45pm The applicant comes into view and parks his vehicle adjacent to the premises. 8:34:06pm The applicant exits his vehicle. 8:34:15pm The applicant enters the premises and walks, right to left, towards the crime scene. 8:50:47pm The applicant returns to his vehicle, performs a U-turn, and parks on the opposite side of the road. 8:52:34pm The applicant opens the boot of his vehicle causing an internal vehicle light to be seen. 8:56:42pm The first flicker of light representing the start of the fire is seen on CCTV. 8:57:40pm The applicant approaches his vehicle and drives off. 9:04:20pm Fire largely noticeable.

His Honour found that the fire must have commenced before the flickering light was seen on the CCTV footage at 8:56:42pm, and that the shed was alight, and must have been alight (or lit) whilst the applicant was still on the premises. [13]
The seat of the fire was identified as being just inside the entrance to the shed. No sources of ignition were located in that area and an analysis of surrounding debris did not indicate the presence of an accelerant. [14] There was no evidence of any electrical fault, nor anything else that could have led to spontaneous combustion at or near the entrance to the shed. [15]
His Honour acknowledged that in order to find the applicant guilty of the property charge it was necessary that he be satisfied beyond reasonable doubt that the applicant was: 1. in the shed; and 2. responsible for the fire. [16]
His Honour inferred, both from the location of the seat of the fire and from the absence of any evidence of ignition or use of an accelerant, that the fire emanated from, and then took hold at, a position just inside the entrance to the shed. His Honour considered that it was not unusual in cases of arson for there to be no available evidence as to the direct cause of the fire, for the simple reason that what was used to start the fire may have been the first item consumed or destroyed. [17]
His Honour concluded that it was unassailable that the fire had taken hold at the entrance to the unlocked shed to which the applicant had access, in circumstances where he was there (or in very close proximity) stealing property. [18]
His Honour directed himself in accordance with the decisions in Barca v The Queen, [19] The Queen v Hillier [20] and Plomp v The Queen. [21] He acknowledged that he was required to consider whether the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the applicant. [22] His Honour also acknowledged that in order for an inference to be reasonable, it must rest upon something more than mere conjecture. He concluded that the bare possibility of innocence should not prevent him from finding the applicant guilty if an inference of guilt was the only rational inference open to a reasonable person upon a consideration of all of the facts which had been proved by the evidence. [23] His Honour directed himself in accordance with Hillier, and approached the matter on the basis that it was necessary to consider and weigh the entirety of the circumstances which were established by the evidence, and not view those circumstances in a piecemeal fashion. [24]
His Honour found that the applicant had lied to the police but that this did not advance the case for the Crown. He regarded himself as being left to consider the case in circumstances where the applicant had chosen not to offer an explanation to the police, and where there was no explanation for a fire that started while he was alone at the premises. His Honour had regard to the decisions in Azzopardi v The Queen, [25] RPS v The Queen [26] and Weissensteiner v The Queen [27] in acknowledging the principle that the burden of proof should never be undermined. [28]
His Honour determined that the first matter to be established beyond reasonable doubt was the applicant's presence at the seat of the fire. Whilst a hypothesis had been advanced that a spontaneous fire had broken out because of an electrical fault, his Honour considered that he could not speculate in that respect. He concluded that there was no evidence to support a rational inference that the fire had commenced because of some incident totally unconnected with the applicant's presence at the premises. [29]
His Honour accepted that there were sometimes fires which were unexplained. However, he concluded that to infer that the fire occurred coincidentally and spontaneously whilst the applicant was in the vicinity would require something more than a suggestion that the premises were old, given the purposes for which the applicant had entered the premises and the presence of an unlocked shed close to the location from where the LPG cylinder had been taken. [30]
His Honour considered the possibility that the fire had commenced accidentally. By reference to what was said in Barca and Baden-Clay, his Honour reasoned that: 1. where an accident is asserted as constituting a reasonable hypothesis consistent with innocence, there must be some foundation in the evidence for it, either by inferential reasoning or otherwise; 2. a requirement that there be some foundational evidence does not amount to a reversal of the onus of proof, but simply requires the court to have regard to what is rational in all of the known circumstances; 3. a judge need not direct himself or herself in the same manner and format as he or she would direct a jury; and 4. a judge should direct himself or herself as to the requirement for all rational inferences, other than the guilt of the applicant, to be excluded, and not to reverse the onus of proof. [31]
His Honour found that there was no basis on which to conclude that the applicant had done something in the shed which had accidentally caused the fire, whether he was aware of it or not. His Honour reminded himself of the necessity to be cautious in relying upon coincidence as a foundation for a circumstantial case, because bizarre coincidences do occur. He also reminded himself that the focus of a circumstantial case is on rational reasoning based upon the evidence before the court. [32]
His Honour concluded that based upon the evidence before him, the only rational inference available was that the applicant was responsible for the fire and that in the absence of anything to suggest accident or intention, the applicant was reckless in causing it. [33]

THE STATUTORY FRAMEWORK

Section 5B of the Criminal Appeal Act 1912 (NSW) provides as follows: 5B Case stated from District Court (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.

GENERAL PRINCIPLES GOVERNING THE STATED CASE PROCEDURE

The Crown's written submissions helpfully set out a number of general principles which govern the stated case procedure. Those principles include the following.
Importantly, because the procedure does not confer a right of appeal, a case stated must not be converted into a general right of appeal, or even an appeal limited to an error of law. The subject matter of the proceedings in this Court is identified by the questions which are submitted for the Court's consideration. [34]
Further, a case stated pursuant to s 5B must be limited to a question of law and the jurisdiction of this Court will be limited by the terms of the stated case. Accordingly, the Court must not have regard to matters outside the stated case in answering the questions which have been submitted. The only questions to be submitted for consideration, and thus the only questions to be answered, are questions that arise in the appeal. [35]
Bearing in mind that a case stated is limited to a question of law, there is a distinction to be drawn between a question of law and an error of law. The expression "question of law" as it is used in s 5B is concerned with an issue involving a principle which is capable of general application, as opposed to a ruling which is dependent upon an assessment of particular facts, and which is therefore not readily capable of wider application to other situations. [36]

Question 1 - To find an offence against s 195(1) of the Crimes Act 1900 proved, must the Court find either intention or recklessness?

At the commencement of the proceedings before this Court, senior counsel for the applicant conceded that any answer to this question could have no effect on the outcome of the proceedings. He accepted that in these circumstances, the Court should decline to answer the question.

Question 2 - Does a finding that there was nothing to suggest accident or intention require evidence of recklessness before an offence against s 195(1) of the Crimes Act 1900 (NSW) can be proved?

Submissions of the applicant

Senior counsel for the applicant submitted that this question arose from the conclusion of the primary judge that in the absence of anything to suggest accident or intention, his Honour was satisfied beyond reasonable doubt that the applicant was reckless in causing the fire. [37] The effect of senior counsel's primary submission was that the absence of evidence of accident or intention did not create a default position, by virtue of which the applicant was reckless and must have adverted to the possibility of damage to, or destruction of, the shed.
Senior counsel submitted that for the purposes of an offence contrary to s 195, recklessness cannot be established without evidence that the offender adverted to the possibility of harm. It was submitted that the absence of evidence of accident or intention did not constitute, and was not a substitute for, evidence of recklessness, nor did the absence of such evidence provide a basis upon which recklessness could be inferred.
It was submitted that in order to establish recklessness, it was necessary for the Crown to establish foresight of the possibility of the relevant consequence and that in the context of the present case, this meant that in order to find that the applicant was reckless it was necessary that there be some evidence which established that he had foresight of the possibility that his actions would destroy or damage the premises by fire. It was submitted that if there was a reasonable possibility that the applicant did not think about the possibility that his actions would cause destruction or damage, recklessness was not proven.
In oral argument, senior counsel took issue with several aspects of the reasons of the primary judge. Senior counsel submitted that although his Honour made a finding that the applicant was responsible for the fire which destroyed the shed, [38] he made no finding as to precisely what the applicant had set on fire, made no reference to the evidence which supported any such finding, and made no finding as to the applicant's state of mind at the relevant time.
To the extent that the respondent suggested that the question was couched in terms which were unclear, senior counsel for the applicant urged this Court to take what he described as a "pragmatic approach", in circumstances where the question had been framed by reference to the content of the stated case.
It was submitted that in these circumstances, the second question should be answered "Yes".

Submissions of the Respondent

Counsel for the respondent submitted that this Court should decline to answer the question in the exercise of its discretion. It was submitted, in particular, that the question raised no issue of general principle, that its terms were unclear, and that it was incapable of being answered other than in the particular context in which relevant findings had been made by the primary judge, and by reference to the particular evidence in the case.
Counsel submitted that there was clearly no dispute in the proceedings as to the appropriate test for recklessness. Counsel further submitted that the various criticisms of the reasoning of the primary judge which had been advanced by senior counsel for the applicant were not part of any issue raised by the question.
Finally, it was submitted that this question could only constitute a question of law if it asked whether an inference of recklessness as to causing the destruction of property could be drawn from the absence of intention or accident alone. It was submitted that such a question did not arise in the present case and that the findings of the primary judge were to be understood in the context of the entirety of the evidence, including his Honour's rejection of hypotheses of spontaneous ignition and accident.
In all these circumstances, counsel for the respondents submitted that the Court should decline to answer the question.

Consideration

In my view, the Court should exercise its discretion not to answer this question for several reasons.
Firstly, although the question appears to be directed towards the issue of whether it was open to the primary judge to infer recklessness in the absence of evidence of intention or accident, that is not the question which has been asked. It is not a part of this Court's function to reformulate the question. Indeed, it is not within the power of the Court to do so. [39]
Secondly, what is required to be proved in order to establish recklessness for the purposes of an offence contrary to s 195 of the Act is well settled. [40] There is no suggestion that this was in dispute before the primary judge.
Thirdly, several of the submissions advanced on behalf of the applicant in respect of this question went well beyond the terms of the question, and well beyond the limits of the stated case procedure itself. The question does not, on any view, call for a determination as to whether his Honour erred in making, or not making, particular findings. Moreover, the stated case procedure does not confer a general right of appeal, and is not concerned with addressing asserted omissions, or an asserted lack of clarity, in the reasons provided by a primary judge. The procedure has, as its focus, addressing questions of general principle for the guidance of judges.
Finally, and whilst I accept that in some cases of this kind a pragmatic approach has been applied by the Court, [41] pragmatism necessarily has its limits. It is not open to adopt such an approach in a case where the terms of the question are unclear, and where a number of the submissions went substantially beyond what was relevant.
For these reasons, the Court should decline to answer the question.

Question 3 - Having regard to the facts found by the primary judge, was the evidence capable of establishing that, when causing the fire, the applicant acted recklessly within the meaning of that term as provided in s 195 of the Crimes Act 1900 (NSW)?

Submissions of the applicant

Senior counsel for the applicant submitted that the primary judge had found that the applicant was: 1. on the premises where the shed was located around the time at which the fire occurred for the purposes of stealing an LPG cylinder; and 2. was responsible for the fire which destroyed the amenities shed.
Senior counsel accepted that the primary judge was not required to find that the applicant specifically foresaw damage to the shed, as opposed to damage to something else. However, it was submitted that the primary judge had made no finding that in doing what he did, the applicant had adverted to the possibility of the shed being destroyed, and that his Honour had not referred to any such evidence in the stated case. It was submitted that it was not open to his Honour to find anything beyond the fact that the shed had been damaged.
In all these circumstances it was submitted that question 3 should be answered "No".

Submissions of the Respondent

Counsel for the respondent did not take issue with the fact that this question raised a question of law. However, it was submitted that the question did not raise any issue of any application beyond the circumstances of this case, and that it essentially amounted to a challenge to the ultimate determination of the primary judge. It was further submitted that it was not the function of this Court to consider whether there was an error in the reasons of the primary judge and that in all of these circumstances it would be open to the Court to decline to answer the question.
Counsel submitted that if the Court considered it appropriate to answer the question, the answer should be "Yes". It was submitted that when considering whether the evidence had the "capacity" to satisfy a particular element of the offence, it was necessary to consider the evidence at its highest, and that an error would arise only where: 1. there was no evidence to support the relevant inferences; or 2. the facts inferred by the court, and supported by the evidence, were incapable of supporting a finding that the element had been established.
Counsel further submitted that: 1. the evidence established that the fire took hold at the entrance of the unlocked shed whilst the applicant was inside, such that any possibility of spontaneous or accidental ignition could be readily excluded; 2. there was no evidence to support the hypothesis that the fire had started in the absence of the applicant's knowledge; 3. accepting that the fire did not start spontaneously or accidently, an inference could be drawn that the applicant intentionally started it, he being the only person who had been seen on the CCTV footage entering or leaving the shed at a time proximate to the fire; 4. if a person had intentionally started a fire within, or in close proximity to, a shed, there was necessarily a strong inference that the person foresaw the possibility of damage to property within the shed, or damage to the shed itself; and 5. it was not necessary for the prosecution to demonstrate that the applicant foresaw the possibility of the total destruction of the shed.
It was submitted that a combination of these factors established a strong circumstantial case that the applicant was responsible for causing the fire.

Consideration

I have already noted that a primary purpose of the stated case procedure is to resolve questions of legal principle. The procedure is not a substitute for an appeal. Moreover, it is not intended to provide a means of challenging the ultimate determination which has been made. [42]
Whilst this question raises a question of law, [43] it does not raise for consideration any principle of general application, nor does it raise for consideration any issue, the resolution of which would provide guidance in a general sense to judges of the District Court. What the question seeks to do is to agitate issues arising from a determination of the primary judge based upon his Honour's assessment of particular facts.
This Court retains a discretion not to answer a question, even if it raises a question of law. The reason that the Court is given that discretion is to ensure that the stated case procedure is reserved for its intended purpose.
In all these circumstances, the Court should decline to answer this question in the exercise of its discretion.

CONCLUSION

I propose that the three questions be answered as follows: 1. Question 1 - The Court declines to answer. 2. Question 2 - The Court declines to answer. 3. Question 3 - The Court declines to answer.

Endnotes

There is a discrepancy in the case stated as to whether the offences occurred on 20 June 2019 (at [1]; [7]) or 26 June 2019 (at [3]).
Stated case at [1].
This is incorrectly referred to in the stated case as being an offence contrary to s 33(4)(1)(b) of the Crimes Act 1900 (NSW).
Stated case at [2].
Stated case at [3].
Stated case at [2].
Stated case at [4].
Stated case at [4].
Stated case at [4].
Stated case at [4].
Stated case at [7].
Stated case at [8].
Stated case at [9].
Stated case at [10].
Stated case at [11].
Stated case at [12].
Stated case at [13].
Stated case at [14].
(1975) 133 CLR 82; [1975] HCA 42.
(2007) 228 CLR 618; [2007] HCA 13.
(1963) 110 CLR 234; [1963] HCA 44.
Stated case at [15].
Stated case at [16].
Stated case at [16].
(2001) 205 CLR 50; [2001] HCA 25.
(2000) 199 CLR 620; [2000] HCA 3.
(1993) 178 CLR 217; [1993] HCA 65.
Stated case at [18].
Stated case at [19].
Stated case at [20].
Stated case at [22].
Stated case at [24].
Stated case at [25].
Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [6] per Basten JA.
Tritton v Clarke [2018] NSWCCA 31 at [9] per White JA.
Orr v Cobar Management Pty Limited [(2020) 383 ALR 352; [2020] NSWCCA 220 at [50] citing R v Lewis; ex parte Attorney General [1991] 2 Qd R 294 at 300 per Macrossan CJ.
Stated case at [25].
Stated case at [24].
R v Porter (2004) 141 A Crim R 593; [2004] NSWCCA 32 at [26].
CB v Director of Public Prosecutions (NSW) (2014) 240 A Crim R 451; [2014] NSWCA 134 at [46] per Barrett JA.
See for example Lavorato at [66] per Schmidt J, R A Hulme J agreeing.
Talay v R [2010] NSWCCA 308 at [16] citing R v Madden (1996) 85 A Crim R 367 at 370 and Re Van der Lubbe (1949) 66 WN (NSW) 140 at 142.
Mack Fleet Pty Limited v Transport for NSW (2020) 93 MVR 242; [2020] NSWCA 149 at [29]-[30] per Basten JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020

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