McLEOD v Regina

LEGISLATION CITED: Crimes Act 1900, s 195(1)(b) Criminal Appeal Act 1912, s 6

Kaliyanda v R [2007] NSWCCA 300 Knight v R [1992] HCA 56; (1992) 175 CLR 495 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 CASES CITED : MFA v R [2002] HCA 53; 213 CLR 606 M v R [1994] HCA 63; (1994) 181 CLR 487 Plomp v R [1963] HCA 44; (1963) 110 CLR 234 R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211

PARTIES: Audrey Amazon Anne McLEOD (Appellant) Regina (Respondent)

COUNSEL: C Loukas (Appellant) G Rowling (Respondent)

SOLICITORS: Aboriginal Legal Services (Appellant) Solicitor for Public Prosecutions (Respondent)

• 15 - IN THE COURT OF CRIMINAL APPEAL CCA 2007/3052

BEAZLEY JA BARR J HOEBEN J

4 June 2008 Audrey Amazon Anne McLEOD v Regina Judgment 1 BEAZLEY JA: On 20 April 2007, the appellant was found guilty by a jury of the indictable offence of having maliciously destroyed a dwelling house by means of fire contrary to s 195(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment. The trial judge, his Honour Nield DCJ, imposed a suspended sentence of two years. 2 The appellant appeals against her conviction. 3 The Crown case was that in the early hours of 31 January 2004, outside the Post Office at Armidale Mall, Armidale, the appellant accused Sally-Ann Cutmore of "having an affair" with her husband. The appellant assaulted Ms Cutmore and threatened to kill her. Ms Cutmore escaped and hid from the appellant, who continued to search for her. Ms Cutmore complained of the incident to the police at the Armidale police station at about 2.10 am on 31 January 2004. 4 Ms Cutmore had, for some years prior to 2004, lived at 12 West Avenue, Armidale. She knew both the appellant and her partner but had not had a relationship with the appellant's partner. The premises adjoining 12 West Avenue, being 10 West Avenue, were owned by John Moore, who conducted a second-hand bargain centre in Armidale. Mr Moore had, for approximately seven years, used the premises to store furniture and other stock for his business. There was a verandah at the front of the house, on which two easy chairs were stored. The chairs were covered with a cotton frilly fabric. From the verandah, there was a window through to the front room, which, during the time that Mr Moore had owned the premises had never been opened. Immediately under the window inside this room, there was an old iron-framed desk with a wooden top. 5 Between 2.30 am and 2.40 am on 31 January 2004, the appellant hired a taxi, driven by Peter Hooper, to drive her to 12 West Avenue. Mr Hooper gave evidence that the appellant was staggering and speaking in a slurred voice and that her breath smelt of alcohol at the time. Mr Hooper drove the appellant to 12 West Avenue and when he asked for the fare, which was approximately $6, she said she didn't have any money and that she would have to go into the house to see "a lady … to get the money". 6 Mr Hooper saw the appellant approach the premises, vigorously knock and kick the door and heard her yelling. He saw that the door was opened by an occupant of the premises. He did not hear the content of any of the exchange between the appellant and the person who had opened the door. The appellant returned to the cab, said she still didn't have the money and that she would go to the premises next door, because the person she was looking for was not at 12 West Avenue. Mr Hooper said he moved his car down to 10 West Avenue and again, the appellant went to the front door and banged, kicked and yelled. He said that no one answered the door. 7 The appellant came back to the cab, stating she wanted to go further. Mr Hooper refused because he had not been paid. The appellant then paid him the $6 in change and again said she wanted to go further. Mr Hooper said he would not take her further unless she could prove that she could pay any further fare. The appellant could not do that and got out of the cab, slamming the door. Mr Hooper observed her going back into 10 West Avenue. 8 Mr Hooper left the vicinity and approximately half an hour later, he was paged in his capacity as a part-time fire officer and was informed that there was a fire at 10 West Avenue. Mr Hooper, who knew the appellant, said that she was wearing trousers and a coat and was not carrying anything that he had noticed. 9 Dennis Froome was resident at 12 West Avenue on 31 January 2004. He said that at about 2.15 am on 31 January, someone had started banging and kicking on his door and yelling "Sally-Ann, Sally-Ann get out here, I want to [fuck] you". Mr Froome said that when he opened the door, there was a woman standing there. There was a strong smell of alcohol on her breath. He told the woman that Sally-Ann did not live there. He observed the woman leave his premises and get in the cab and he saw the cab reverse down to the next door property, 10 West Avenue. 10 Mr Froome said he recognised the sound of the gate to that property squeaking. He heard banging on the windows and doors and a female voice "screaming out for Sally-Ann". He also heard the person go down the side of the house, where she continued to scream out "for Sally-Ann". At about 2.30 am, the same person returned to his property and again started banging on the door. Mr Froome informed her that Sally-Ann didn't live at 12 West Avenue and that she was to leave, otherwise he would call the police. He saw the person walk out of the gate and back down into 10 West Avenue. Mr Froome said he heard her go through the gate, heard her banging on the door again and then it was quiet, until about 2.45-2.50 am, when he heard an explosion and called the police. Mr Froome said that, having heard the explosion, he looked out the window and saw the flames and that by that time, the place was well alight. He went outside and saw "flames shooting out from the front of the verandah". He estimated that about 10 minutes elapsed between the time he heard the woman at 10 West avenue and the sound of the explosion. 11 William Supple, who lived at 9 West Avenue on the opposite side of the road, was woken at about 2.30 am on 31 January 2004 by the sound of a female voice. Mr Supple went out onto his patio and saw a person walking away from 12 West Avenue, as well as his neighbour, Mr Froome, on his verandah. Mr Supple said he saw a taxi in the street. He next heard some knocking on 13 West Avenue, and the next sound he heard was that of glass breaking. He thought this was about 5 to 10 minutes later. He went back out onto his patio and saw a female person at the front door of 10 West Avenue. 12 Later, Mr Supple saw smoke appearing from near the front door. Mr Supple said the person he saw at the front door of 10 West Avenue was the same person he had seen shortly before. He said he heard an explosion, which sounded as if the front window had blown open. Mr Supple said that he saw no persons other than his neighbour, Mr Froome, and the person who walked away from Mr Froome's premises in the street at that time. Mr Supple said that the only smoke that he saw was coming from out of the front door. He did not see any smoke in the left-hand corner of the verandah where, as the evidence established, the two easy chairs referred to above were located. 13 The Newcastle Communications Centre received a report of the fire at about 3.17 am and processed the call through to the Armidale Fire Brigade. 14 The premises at 10 West Avenue were extensively damaged, with most of the damage occurring in the front room. The north-eastern corner of the verandah also sustained heavy damage. A brick was found underneath the window between the verandah and the front room. The brick had previously been at the front fence before the fire. After the fire, the window leading from the verandah into the front room was found open. The debris of heavy sheets of fabric was also found on the floor. A can containing methylated spirits was located in the front room. However, the can had its lid on and was intact, despite the fire. 15 Detective Sergeant Carnell, the Forensic Supervisor who conducted the investigation into the fire, formed the opinion that the fire was not caused by the use of any accelerant. He also formed the opinion that the fire had commenced within the front room and travelled out from there. His opinion was based upon the extent of damage to the front room, including damage to items within that room compared to the area immediately outside on the verandah. He was not able to determine, however, what was the primary source of ignition within the front room. Detective Sergeant Carnell also expressed the opinion that the fire was not due to any electrical fault. He did not consider that the likely origin of the fire was on the front verandah. He expressed the opinion that the fire had not been caused by spontaneous combustion. 16 The senior fire officer who attended the fire was David Nixon. Mr Nixon had expressed an opinion that the fire started on the front verandah, because the lounge chairs that had been located on the verandah had burnt through the verandah floor onto the ground beneath. However, Mr Nixon recognised that Detective Sergeant Carnell was an expert and that he himself was not trained as a forensic investigator into the causes of fires. He confirmed that there was no smell of accelerant on the premises. Mr Nixon also gave evidence in cross-examination that a lit cigarette butt could cause a fire, by falling on lounge suite, if flammable material was exposed. He explained that it would depend upon the type of material, stating that "some materials … won't burn by the start of a cigarette and others … will". He also accepted that sheets or blankets might be set on fire by a burning cigarette butt.

Grounds of appeal 17 The appellant raises three grounds of appeal:

1. That the learned trial judge erred in giving the jury direction excluding accident as a reasonable possibility;

2. The learned trial judge erred in directing the jury that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt; and

3. That the verdict of the jury should be set aside on the ground that it is unreasonable or could not be supported having regard to the evidence.

Ground 1: error in the trial judge's direction excluding accident as a reasonable possibility of the cause of the fire 18 The trial judge gave the following direction to the jury in respect of the cause of the fire: "Learned counsel for the [appellant] submitted to you that the fire may have been a consequence of some accidental act. In the way this trial has been conducted, having regard to the evidence that has been presented to you, you could not find that the fire was a consequence of some accidental act. To find that the fire was a consequence of some accidental act would be mere speculation. I have told you already that the jury is not entitled to speculate about anything. So it is not a matter of deciding whether the fire was lit intentionally or recklessly, or whether the fire resulted from some accidental act. It is a matter of deciding whether the evidence satisfies you beyond reasonable doubt that the fire was lit intentionally or recklessly. If you are satisfied beyond reasonable doubt by the evidence that it was lit deliberately or recklessly, then your duty is to find the [appellant] to be guilty. If you are not satisfied by the evidence beyond reasonable doubt that it was lit deliberately or recklessly, then your duty is to find the [appellant] to be not guilty …" 19 Counsel for the appellant submitted that this direction was in error. She referred the Court to R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211. That case also involved a fire. The trial judge, in his directions to the jury, pointed out that the Crown case depended on circumstantial evidence. He then directed the jury in these terms: "Before you can find an accused person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. That is the only reasonable conclusion to draw. It follows that if there is another finding that is reasonably open, that is if there is another reasonable explanation based on evidence, ladies and gentlemen, not on speculation or guessing, based on evidence which is consistent with innocence, it is your duty to find the accused not guilty.

The accused says that there are other reasonable explanations which are consistent with him being innocent. He says that the fire may have been started with Miss West dropping a lighted cigarette onto a lounge chair and she, or the children, kicking the bean bag or doona against the radiator. The Accused says these things could have happened, either accidentally, in panic to get away or deliberately for the purpose of getting a housing transfer. That is a matter for you to judge but you cannot speculate or guess about it." (See [29] ff of McIntyre ) 20 Prior to giving this direction, the trial judge in McIntyre had earlier stated to the jury during the course of the summing-up that there was no evidence that the fire in that case had been either accidentally or deliberately lit by the accused. He said that those matters were no more than suggestions and that the jury was not allowed to speculate. 21 Hulme J, with whom Sully and Hidden JJ agreed, stated at [30]-[34]: "30 It is, of course, both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial evidence case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.

31 Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event. A couple of examples demonstrate this point.

32 A rape is committed at night in the victim's home. The Crown presents a case based on circumstantial evidence that the offender was A. There is clear evidence that the windows of the victim's home were open and other persons were around and acting suspiciously. A would be entitled to be acquitted as there would be a reasonable possibility that someone else was the offender.

33 A fire commences on a wooden bench on which the owner was, earlier in the day, ironing. He says he thinks he turned the iron off. Clearly, there remains a reasonable possibility that he did not. A suspect against whom the Crown presented a circumstantial evidence case as to his involvement would be entitled to be acquitted. Although the circumstances might not justify an inference that the fire did start accidentally from the iron, those circumstances raised that cause as a reasonable possibility.

34 It would, of course be a matter of speculation, whether in fact that rape had been committed by someone else; or the fire had occurred accidentally due to a failure to turn the iron off; but there is no speculation involved in considering whether these are reasonable possibilities." 22 Hulme J considered that notwithstanding the direction (set out at [19] above), the trial judge's comments that there was no evidence that the fire had been lit, inter alia, accidentally, may have been taken by the jury as being a direction that they could not take account of the possibility of the fire being accidental. His Honour considered that to be an error. 23 McIntyre was considered by this Court in Kaliyanda v R [2007] NSWCCA 300. In that case, a direction as to circumstantial evidence was given in unexceptionable terms. The trial judge, however, elaborated the direction in these terms: "In other words, if there is a reasonable possibility upon the whole of the circumstances proved then the accused is not guilty, then he is entitled to the benefit of that circumstance and is entitled to a verdict of not guilty at your hands. It is really just another way of saying of what I have said to you several times now that the crown must prove its case beyond reasonable doubt." (Set out at [60] of Kaliyanda ) 24 On appeal, the appellant submitted that that direction may have confused the jury, "… as they may have thought that it was necessary for them to be able to infer that a circumstance, the subject of such a rational conclusion, in fact occurred before relying on, or making allowance for, the possibility of such a circumstance." (Set out at [61] of Kaliyanda ) 25 McClellan CJ at CL, Hulme and Harrison JJ agreeing, rejected this submission. He considered, at [63]-[66], that the jury would not have been misled into believing that the hypothetical possibility must be proved. His Honour considered that the jury had been clearly directed to reject possibilities that were inconsistent with the appellant being guilty before the Crown could get "to first base" on its case. 26 The case with which this Court is presently concerned was also a circumstantial case. The appellant was seen at the house at about the time of the fire. She had expressed animus towards Ms Cutmore. There was evidence that she was a smoker and there was evidence that she was drunk. The Crown case against the appellant was that she had either deliberately or recklessly started the fire. The appellant's case was that there was a reasonable hypothesis that the fire had occurred accidentally. 27 The intentional lighting of a fire is easy to understand. In this case, the person responsible may have struck a match, or used a cigarette lighter, or used a cigarette to ignite some flammable material, of which there was a considerable quantity, inside the house. Reckless and accidental acts are not necessarily so easily described and the line between the two is not necessarily clear-cut. A reckless act might occur where a person, knowing there was flammable material in the room, flicks a cigarette butt, not caring whether the butt landed near or on the flammable material. An accidental act might be where a person, smoking a cigarette, stumbles and drops the cigarette onto some flammable material, and is either unable to retrieve it, or the flammable material ignites almost instantaneously. Another example might be where a person drops a cigarette butt and it happens to fall onto flammable material. However, that circumstance, taken in combination with other circumstances, might be considered by a jury to be reckless. 28 In this case, where the case against the appellant was based upon circumstantial evidence, a hypothesis that the fire was started accidentally was a reasonable hypothesis. Likewise, the hypothesis that the fire was ignited as a result of a reckless act was also a reasonable hypothesis in the circumstances. The rejection of the appellant's case that there was a reasonable hypothesis arising from the evidence that the fire was lit accidentally should therefore have been left to the jury. However, his Honour directed the jury on the basis that there were only two hypotheses that they were to consider. If the jury accepted either of those hypotheses, the appellant would be found guilty. There was, as I have indicated, a third reasonable hypothesis of an accidental act that was consistent with innocence and which should have been left to the jury's determination. 29 It follows, therefore, that ground 1 should be upheld.

Ground 2: that his Honour erred in directing the jury that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt 30 Having given the direction subject of ground 1 of the appeal, the trial judge returned to the meaning of circumstantial evidence and gave the jury a number of examples. No issue is taken as to the use of the examples. His Honour then said that in respect of each of the examples he had given, the jury might think that the evidence was quite strong, but that, nonetheless, "… in a circumstantial evidence case, for the jury to draw the conclusion that A had shot B with the firearm [that being the example], it must be the only reasonable and rational conclusion to draw from the proved facts ." (Emphasis added) 31 His Honour returned to the example he had been explaining and then continued his directions in respect of the jury's task when dealing with a circumstantial case. He said: "So that is why, members of the jury, in a circumstantial evidence case, the conclusion that the jury is asked to draw must be the only reasonable and rational conclusion to draw from the proved facts. If there is another reasonable and rational conclusion to be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn, simply because there are competing reasonable and rational conclusions. So, members of the jury, in a circumstantial evidence case, for a jury to find an accused person guilty on the basis of circumstantial evidence, the conclusion of guilt must be the only, and I emphasise the word only, reasonable and rational conclusion to be drawn from the proved facts . If there is another reasonable and rational conclusion that can be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn because, obviously, if there are two equally reasonable and rational conclusions to be drawn, one of guilt and one inconsistent with guilt , then it cannot be that the only reasonable and rational conclusion to be drawn is one of guilt." (Emphasis added) 32 This direction was contrary to clear High Court authority. In Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Dixon CJ stated at 375: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation."

See also Plomp v R [1963] HCA 44; (1963) 110 CLR 234 per Dixon CJ at 243. 33 In Knight v R [1992] HCA 56; (1992) 175 CLR 495, Mason CJ, Dawson and Toohey JJ in their joint judgment held that a direction given in almost identical terms in the trial of Knight was erroneous. The direction in that case was that Knight: "… could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open." 34 Their Honours stated, however, that the correct test was that: "… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence , then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance." (Emphasis added) 35 The Crown, whilst not conceding that the direction given by his Honour in this case was wrong, accepted that if the reference to there being two equally reasonable and rational conclusions to be drawn was part of the direction, then such a direction was wrong. The Crown submitted, however, that properly understood, that statement was part of an explanation. It was submitted that his Honour was not, at that point, giving a direction, as was apparent from the adequate and correct directions otherwise given in the passage that I have quoted. 36 With respect to this careful argument advanced by the Crown, I do not agree that the trial judge was merely providing an explanation of the principle upon which he was directing them. But even if was, it was an unequivocal statement to the jury from which the jury could understand that if an hypothesis consistent with innocence was open on the evidence, it was an hypothesis that had to have equal weight with a hypothesis consistent with guilt before the jury could act upon it. Such a statement is contrary to established principle as discussed in the authorities to which I have referred. 37 Ground 2 should also be upheld.

Ground 3: the verdict of guilt should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence 38 The appellant submitted that a properly directed jury, having regard to the circumstantial nature of the evidence, could not reasonably return a verdict of guilty. It was submitted that the evidence did not exclude a reasonably possible hypothesis consistent with innocence: see Knight v R. In M v R [1994] HCA 63; (1994) 181 CLR 487, the High Court said at [6]: "Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s.6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King , Isaacs J said: 'If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.'" (Citations omitted) 39 This lays down the approach to be taken to s 6 of the Criminal Appeal Act 1912 which provides: " 6 Determination of appeals in ordinary cases

(1) The court on any appeal under section 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.

(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. 40 The test in M was confirmed by the High Court in MFA v R [2002] HCA 53; 213 CLR 606, where the Court stated at [47]: "When attention is focussed on the actual language of s 6(1) of the Act, it appears to confer a very large power to be applied by reference to criteria that are not stated in restrictive or narrow terms. On the face of things "unreasonable", in particular, seems to state a very broad test." 41 In my opinion, this is not a case where the jury verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The evidence of the appellant being at the house for a period of 10 minutes to half an hour before the fire started; that she believed that Ms Cutmore resided at that house; and that she had an intention to do harm to Ms Cutmore that evening, was strong circumstantial evidence of the guilt of the appellant. As I have explained above, there was no necessary clear line in this case between an hypothesis of reckless conduct, that would result in verdict of guilty, and an hypothesis of accident, that would result in a verdict of not guilty. It was a matter for the jury whether they considered there was an inference of a reasonable hypothesis consistent with innocence. However, I do not consider that this is a case where it could be said that the jury could not reasonably return a verdict of guilty. 42 Accordingly, I would reject ground 3. 43 It follows that the appeal should be allowed and the orders I propose are as follows:

3. Order that there be a new trial. 44 BARR J: I agree with Beazley JA. 45 HOEBEN J: I agree with Beazley JA. **********

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