_R v De Silva_

Court of Appeal (Qld)|2007-09-21|Before: Jerrard and Holmes JJA and Philippides J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made.

[1] JERRARD JA: On 20 April 2007 Mr De Silva was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles, committed on or about 23 December 2004, at Beenleigh. On 2 May 2007 he was sentenced to 16 months imprisonment, with the 12 days between 20 April 2007 and 2 May 2007 declared as time already served, and the learned judge set a parole release date of 20 December 2007. Mr De Silva has appealed against his conviction, but abandoned an application for leave to appeal against his sentence.

[2] His counsel on the appeal, Mr P Nolan, was given leave to amend the grounds of appeal against conviction, which became that the verdict of the jury was unsafe and unsatisfactory, in that the learned trial judge had erred in law by directing the jury that there was no issue with respect to the question of whether or not there had been an attempt. The essence of the argument on appeal was that, although the point had not been raised by either counsel at the trial, and although the learned trial judge was not asked to give any directions on it, the learned judge ought to have directed the jury as to the difference between mere preparation to commit an offence, and an attempt to commit it.

[3] Mr Nolan readily conceded that the case against Mr De Silva was a strong one. At the time of the alleged offence Mr De Silva was the de facto partner of a Christine Piggott, who was the estranged wife of the complainant David Piggott. The Piggotts had three children from their marriage, and there was at that time an ongoing dispute between the Piggotts as to where and with whom the children should live. On 20 December 2004 an order had been made that they were to live with Mrs Piggott, provided that Mr De Silva did not also live in the same residence. Both Mr De Silva and Mr Piggott, and Mr Piggott's partner, a Ms Ford, and Mrs Piggott were in the Federal Magistrates Court when that order was made. Christine Piggott's evidence was that Mr De Silva was very angry at its terms. Mr De Silva had said on earlier occasions that he did not like Mr Piggott, including to the Crown witnesses Deanne Colby, and Justin Pfeiffer, as well as to Christine Piggott.

[4] On 23 December 2004, on Christine Piggott's evidence, Mr De Silva and a friend of his, Nick Carter, came to her residence a little after lunch that day, and both men had been drinking alcohol. They spent most of the time in a barn near the house, in which another friend now living in Western Australia, a Darryl Skjottrup, had left some jerry cans of petrol. At some unidentified time Christine Piggott saw each of Mr De Silva and Mr Carter carrying a jerry can up from the barn, and onto the driveway of the residence. Mr De Silva and Mr Carter left that night together:

"Possibly around 10-ish, half past 9, 10ish, somewhere, maybe",[1]

and Mr De Silva was dressed as if he was going out. Christine Piggott assumed that he and Nick Carter were "going out drinking." When he returned home later and came into her bedroom, she noticed that he "smelt like petrol".[2]

[5] Justin Pfeiffer gave evidence that he was a friend of Mr De Silva, and he also knew Nick Carter. Mr Pfeiffer knew from Mr De Silva that the latter "hated" David Piggott, and gave evidence that at:

"probably around about 10 o'clock at night perhaps"[3]

Mr De Silva and Nick Carter came to his residence one night in late December, and before Christmas, 2004. Mr De Silva was in high spirits. Mr Carter was not, and Mr De Silva asked Mr Pfeiffer if he could borrow a lighter, and some gloves. Mr Pfeiffer asked why Mr De Silva wanted the gloves, and Mr De Silva said:

"Don't tell anyone but we're going to burn David's house down."[4]

Mr Pfeiffer attempted to talk Mr De Silva out of that idea, and Mr Carter said that he did not want to do it, but Mr De Silva said:

The next day Mr De Silva came to Mr Pfeiffer's office, and Mr Pfeiffer asked:

"Mate, you don't want to know. We almost got caught."[6]

[6] David Piggott gave evidence that on 23 December 2004 he went to bed at 9.30 pm, and awoke to a smell of petrol. He thought someone was stealing it from his car, looked out a window, and saw fluid on the ground. He ran out and into the carport area, which housed two vehicles, and then onto the road; and when he looked back at the house he saw a person crouched down behind one of the vehicles. That person ran to an awaiting car, which drove off. Mr Piggott described that person as certainly overweight, with long hair, who ran very awkwardly. He did not recognise the person as Mr De Silva from the back. He did find fluid on the floor of the carport, and a jerry can at the place where the person was seen crouching in the carport. It was identified by Mr Skjottrup as one of the jerry cans that Mr Skjottrup had left at Mr De Silva's residence. Mr Skjottrup gave evidence that he had lived for some months in a downstairs room in that house, and left there in November 2003. There was no challenge to his evidence that he had left those cans at the residence in the barn, or to his identification of the one found at Mr Piggott's house, as one which he had left in Mr De Silva's barn. The lid of the can found by Mr Piggott had been removed, and it was about one third full of petrol. There was a strong smell of petrol in Mr Piggott's carport, and petrol had been poured on the timber work.

[7] The prosecution called a Mr Jason Colby, who gave evidence that when at a barbeque at Mr Colby's residence in August 2005, Mr De Silva had said that:

"He'd been having troubles with David and he went to David's place at night dressed in black, splashed petrol around his house and his car and tried to light the - light the place up, but was startled by David."

He repeated in evidence that Mr De Silva had said that:

"When he went to light the place up David came out, so he ran off and jumped in the car and took off."[7]

[8] Deanne Colby gave evidence that she also heard, on the same occasion (at the barbeque) a statement by Mr De Silva to the effect that he had:

"Tried burning the - had tried burning his [Mr Piggott's] residence"

"Just basically he said that he'd turned up there, he'd spread fuel around, but he obviously got disturbed and then he took off."[8]

Christine Piggott also gave evidence in cross-examination of her having asked Mr De Silva about the smell of petrol that night, and that he had said (apparently the next day) that he had worn a wig so that he would not be recognised when he went to "David's."[9] That evidence was challenged (as to the smell of petrol and admission of wearing a wig) on the ground that it was said for the first time at the trial.

[9] Mr De Silva gave evidence, denying that he had committed the offence, that he had owned or worn a wig, that he had ever seen jerry cans at his previous residence, or that he had ever admitted being involved in the offence to anyone. That evidence was given even though neither of the Colby witnesses were actually challenged in cross-examination on their account of the conversations with them; the other witnesses were challenged in cross-examination on their accuracy or honesty. Apart from his own evidence denying any involvement, Mr De Silva called evidence from a Peter Braidotti, to the effect that Christine Piggott had asked him if he would give evidence against Mr De Silva, without specifying the evidence she wanted him to give; and Deanne Colby had remarked to Mr Braidotti, about Mr De Silva, that:

(Mr De Silva had previously employed Mr Colby). Likewise, Justin Pfeiffer had also asked him to:

in exchange for some unspecified benefit that Mr Pfeiffer could give Mr Braidotti.

[10] If the jury accepted the evidence of the prosecution witnesses as truthful, there was an overwhelmingly strong case that Mr De Silva had been frustrated at the last moment when about to set fire to at least the carport and cars at Mr Piggott's residence. The defence case was that those witnesses had, for different reasons, all lied, and a number of them had revealed their hostility and duplicity to Mr Braidotti. It was certainly open to the jury to be satisfied beyond reasonable doubt that the circumstantial Crown case was a strong one, and had been made out.

(1) When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender's part for completing the commission of the offence, or whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender's intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence."

[12] Mr Nolan concentrated his submissions on the well settled distinction between an attempt to commit an offence, and mere preparation to doing so, described and discussed in R v Chellingworth [1954] QWN 35, R v Edwards [1956] QWN 16, and R v Williams ex parte The Minister for Justice and Attorney-General [1965] Qd R 86; and, of course, elsewhere. Section 4 does not make that distinction, in terms, but it has always been recognised in this State. Mr Nolan's written submission argued:

"3. The critical point is whether the uncontradicted evidence of the home owner Mr Piggott (transcript at page 92) is sufficient for a jury to draw the conclusion that there was an attempt as opposed to simply a preparation. Unfortunately the Trial Judge was not directed to this point by either Counsel in his summing up and told the jury that there was no issue as to whether or not the conduct of the person seen running away from Mr Piggott's house amounted to an attempt. It is submitted that in reality, the jury should have been directed that they needed to look at the state of the evidence to determine whether it went far enough to warrant drawing the inference of an attempt."

The submission continued elsewhere, that the verdict was unsafe because of the lack of evidence distinguishing between an attempt and preparation.

[13] The learned trial judge was not asked to rule on whether the evidence was capable of establishing an attempt, as opposed to preparation, and no attention was directed to this point at the trial. Mr Nolan did not argue that the learned judge would have been bound to rule the evidence fell short of establishing an attempt; only that the point should have been brought by the judge to the attention of the jury for their consideration. That submission makes this an appeal about an argument which counsel at the trial did not make, and which (different) counsel on the appeal submitted was available.

[14] The learned judge did not actually direct the jury (in terms) that there was no issue as to whether the conduct of the person who fled amounted to an attempt; the judge directed the jury as to the content of s 4 of the Criminal Code, and then continued:

"So the essence of an attempt then, is an intention to commit the offence and then putting intention or beginning to put that intention into execution by some means adapted to its fulfilment and manifesting that by some overt act, but falling short of actually committing the offence.

Now, here what's said is that the person who committed this offence had the jerry cans, had put the petrol all around the vehicle and the house and so provided he had requisite intention, he's begun to put that intention into execution by means adapted to his fulfilment, putting the petrol around, et cetera, and he's manifested the intention by some overt act. The putting the petrol around constitutes both of those, you may well think, and again in terms of intention, well you may well infer again, it's a matter of inference, a matter for you but you may well think that given the direct evidence that there was someone there at night, that there was petrol all around the place and this jerry can, you may well be prepared to infer that the person who was there who ran off, was the person who spread the petrol around and that the intention of doing that was plainly towards setting fire to the house and cars where it was splashed around.

Again, as I said to you before, before you draw inferences they must be logical and rational, but you may well think that's the logical and rational conclusion. Nobody here, the defence included, are suggesting that the offence did not occur; the real question here or the competition between the parties is that, as to whether it was the accused who did it but I need to inform you of all of those elements because you have a duty to be satisfied, not only about the identity, but you need to be satisfied that the offence, in fact, occurred beyond reasonable doubt."[10]

[15] Put in context, what the learned judge did was to direct the jury as to the elements of an attempt, correctly, and to the evidence demonstrating an intent. The learned judge's further comment about there being no suggestion that the offence did not occur seems more a description of the strength of the evidence in support of intent. But assuming it was understood as Mr Nolan contends, that there was no challenge to the view that the offender, whoever he or she was, had attempted to commit arson, that result did not come about simply because of the uncontradicted evidence of Mr Piggott. There was, against Mr De Silva, Mr Colby's evidence as well, that Mr De Silva had said that:

he was forced to abandon the plan. That admission was relevant to proof of intent, and of an attempt having happened. So too was the fact that Mr De Silva borrowed a lighter and gloves, and declared an intent beforehand.

[16] In R v Chellingworth [1954] QWN 35, Sheehy J ruled as a matter of law that the following circumstances amounted only to preparation to commit an offence, and not to the offence of attempted arson. Mr Chellingworth, who had previously threatened to burn a house down, was found in it at 5.30 am with a half empty tin of petrol in his possession. The walls and floor of the house were splashed with petrol, and there was an empty tin and bags soaked with petrol. Sheehy J noted that:

"No suggestion was made that the accused had tried to apply a light of any description."

His Honour read from the 31st Edition of Archbold's Criminal Pleading, Evidence and Practice at p 1423, to the effect that:

"Mere intention to commit an offence does not constitute an attempt... some act must be proved to have been done by the prisoner immediately connected with the offence.";

"The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law."

That learned judge was not satisfied Mr Chellingworth had gone far enough or beyond preparation. If a factual distinction between that case and this one was necessary, it could lie in the evidence of an admission to Mr Colby of being about to "light the place up".

[17] A Mr Bradford appeared for the accused in R v Chellingworth, and two years later, in R v Edwards [1956] QWN 16, Bradford AJ heard a charge that a Mr Edwards had attempted to have carnal knowledge of a bay mare. The Crown case was that Mr Edwards had been disturbed when he was standing naked on a 44 gallon drum, facing the back of the mare, and a further description of the facts in that case, in the report in R v Williams ex parte The Minister for Justice and Attorney-General (at 1965 Qd R p 99) included that his penis was erect and in the vicinity of the mare's genitals, when he was interrupted. Bradford AJ held in R v Edwards that while there was ample evidence that Mr Edwards intended to commit the offence of having canal knowledge with the horse, the issue, whether he had manifested that intention by means adapted to its fulfilment, required that the means must be immediately connected with the fulfilment of the purpose. His Honour thought those facts did not go far enough.

[18] The result in each of those cases was criticised by Stable J, with whom Wanstall J agreed, in Reg v Williams ex parte The Minister for Justice and Attorney-General [1965] Qd R 86. That appellant had been convicted of attempted rape, and the evidence included that the complainant, who was staying at a private hotel with a friend, had met the appellant for the first time at a nearby pool, and during the day he had attempted to kiss her. She told him to "cut it out" and went to her room, removed her swim suit, put on a brunch coat, and went to sleep. She woke to find the appellant grabbing her upper body and when struggling with him she fell on the floor, and he then sat on her. She was naked, and he told her he was going to have her whether she liked it or not, and he pinned her down with his left arm and struck her with his right fist. He grabbed at her groin and inserted his fingers into her vagina, and she managed to scratch his face. He released her and started to cry, and she fled. On appeal, it was argued he had merely prepared himself to rape her, not attempted to. Hanger J found it unnecessary to discuss the cases on the difference between what would be mere preparation and what was an attempt, being satisfied that the facts in that matter constituted an attempt.

[19] Wanstall J agreed with the reasoning of Stable J, and with the conclusion by both the other judges, that there was no substance in the argument that there had not been an attempt proved, and with Stable J's criticisms of the decisions in R v Chellingworth and R v Edwards. As to the latter case, Stable J held that it should have been left to the jury, on the facts available to the Crown. It appears Stable J was satisfied that those did establish a means immediately connected with the fulfilment of the intended purpose.

[20] Likewise Stable J noted that the decision in R v Chellingworth had drawn criticism, and Stable J adopted as accurate the view expressed by Dr Norval Morris in (1955) Crim LR at 293, that the actus reus necessary to constitute an attempt is regarded as complete if the (defendant) does an act which is a step towards the commission of the specific crime, and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime. His Honour also adopted the view expressed in R v Barker (1924) N.Z.G.L.R. 393 at p 397-8, where Salmond J wrote:

"Subsequent authorities make it clear that the [last act test] so suggested and adopted is not the true one. It is now settled law that to constitute an attempt, it is not necessary that the accused should have done his best or taken the last or proximate step towards the completed offence. The suggested rule was definitely rejected by the Court of Criminal Appeal in R v White (1910) 2KB 124. It was held that the first administration of poison in a case of intended slow poisoning by repeated doses amounted in itself to attempted murder. It is said by the court - 'The completion of one of the series of acts intended by a man to result in killing is an attempt to murder, even though the completed act would not, unless followed by other acts, result in killing. It might be the beginning of an attempt but would nonetheless be an attempt.'"

Although the test adopted by Parke B has been rejected, no definite substitute for it has been formulated. All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is determined the authorities give no clear guidance."

[21] Stable J respectfully adopted that statement. I agree with Stable J that the remarks of Salmond J in R v Barker accord with s 4 of the Criminal Code, which section describes what constitutes an attempt. There was a very, perhaps unduly, strict application of the long accepted distinction between mere preparation and a completed attempt, in each of R v Edwards and R v Chellingworth. On the other hand, there was sufficient evidence of an attempt to commit arson in this matter. The jury were entitled to conclude that Mr De Silva had travelled to the premises with the intention of setting fire to them, had taken petrol with him in a jerry can previously stored at his residence, had spread the petrol around in the carport, had been disguised, and had been about to set fire to the premises when disturbed, and forced to flee. His own remarks made later to others did not suggest any abandonment of a fixed intent, but only abandonment of the attempt because he was almost caught in the act. The learned judge could have given the further direction suggested in the Queensland Supreme and District Courts Benchbook at Direction 68.2, and giving it would have put this appeal entirely beyond argument. The suggested direction is in these terms:

"The act relied on as constituting the attempt must be an act immediately, not merely remotely, connected with the contemplated offence. What is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. But it is not necessary that the defendant should have done his best or taken the last step towards the intended offence."

[22] That suggested direction accords with the terms of the Code, with the common law as described elsewhere, and with suggested directions elsewhere. In R v Nicholson (1994) 76 A Crim R 187 Underwood J also referred to the judgment of Salmond J in Barker, and to the comments by Salmond J that:

"An act done with intent to commit to a crime is not a criminal attempt unless it is of such a nature as to be itself sufficient evidence of the criminal intent with which it is done."

Underwood J went on to describe what had come to be called the "equivocality" test for an attempt, namely that the alleged acts unequivocally show an intent to commit a crime. He had concluded that that test was not the only relevant one, to determine whether or not an act or acts could constitute an attempt. His Honour cited from the remarks of Lord Diplock in DPP v Stonehouse [1978] AC 55 at 69 that:

"In the crime of attempt the concept of proximity between the acts of the accused and the complete offence that he intended to commit involve this kind of impression; but the impression is limited in its range. At one extreme it can be that the particular acts proved are so remote from the complete offence that no reasonable person could regard them as sufficiently proximate to conform to the definition of an attempt; at the other extreme it can be said that they are so immediately connected with it that no reasonable person could regard them as not conforming to the definition of an attempt."

[23] That citation was quoted by Underwood J in R v Nicholson in support of His Honour's view that while the equivocality test might be a useful guide in evaluating the acts of a defendant, to see if those had passed from being the stage of mere preparation to acts that constituted an attempt, it was not the only relevant test. He so concluded because he considered the result in the unsuccessful appeal DPP v Stonehouse would have gone the other way if it were. (Mr Stonehouse had attempted to obtain property (life insurance money) by deception, and to that end had faked his own disappearance and death).

[24] A suggested direction which appeared in the New South Wales Supreme Court Benchbook read:

"The Crown must establish, first, that (the accused) intended to commit the particular crime (elaborate or explain) (it is not sufficient for the Crown to prove merely that the accused was reckless as to whether the intended crime would take place).

The Crown must establish, secondly, that (the accused) did some acts towards committing the intended crime which was immediately (rather than remotely) connected with committing that crime, and which cannot reasonably be regarded as having any purpose other than to commit that particular crime. (It is not sufficient for the Crown to prove only that the accused had taken steps in preparation for committing the intended crime)."[11]

[25] That resembles a suggested direction in the Criminal Jury Trials Benchbook in New Zealand, where a suggested direction read:[12]

"It is a crime to attempt to commit a crime even if, for whatever reason, that attempt is unsuccessful. To prove an attempted crime, the Crown must prove two elements.

(1) First, that the accused formed an intention to commit that crime, in this case (specify);

(2) Second, that the accused did (or omitted) some act for the purpose of actually carrying that intention into effect.

Both factors are of course important, but it is the second one that needs particularly careful consideration. You must be satisfied that what the accused did [or did not do] was for the purpose of actually beginning to commit the crime. Acts that are part of just thinking about doing it, or preparation for making the attempt to commit it, are not sufficient."

[26] Directions approved in a "Book of directions to juries for the criminal jurisdiction of the Supreme Court and the County Court of the State of Victoria" have included a direction on "attempts", which included the following:[13]

"The Crown must prove such an act or series of acts as would have constituted the completed offence if they had not been interrupted, either by the voluntary determination of the offender not to complete the offence, or by some other cause. The act or acts must be so connected to the completed offence, so close to committing, as to be clearly referable to that offence - to be part of the committing of it, as distinct from a mere preparation to commit it. They must be immediately and not remotely connected with the commission of the intended offence."

[27] The distinction between preparation to commit an offence and an attempt to commit is thus well established in the common law and criminal statutes in Australia and in New Zealand, and in suggested directions to juries. The approach taken by Stable J in R v Williams accords with that in other States. It is not necessary to establish that the last act possible was done before the completed offence would occur, to prove an attempt to commit that offence; and sufficient was established in this matter. It is usually necessary to instruct a jury to distinguish an attempt from preparation, but that is because the defence has usually advanced that there was only preparation, and no more.

[28] On the totality of the evidence Mr De Silva was not deprived of any possible chance of acquittal by the suggested direction not having been given. It is only when a direction not asked for should have been given, that the possibility of a miscarriage of justice arises. It is then for the appellant to show that the direction both should have been given, and that it is reasonably possible that the failure to so direct the jury may have affected the verdict.[14] While the jury were not given the opportunity to consider a defence of mere preparation, that was not the defence Mr De Silva relied on. Failing to direct on the distinction between preparation and an attempt did not alert the jury to a usually relevant matter, but there is no reasonable possibility that the failure to do that may have affected the outcome in this trial, given the evidence led. The evidence relevant to establishing Mr De Silva's presence at Mr Piggott's residence included the evidence relevant to proof of his intent. It follows that directing or not directing the jury on preparation versus an attempt would have had no significance in determining the verdict returned by the jury,[15] such was the strength of the prosecution case. The appellant has not established the necessary matters to succeed, and accordingly I would dismiss the appeal against conviction.

[29] HOLMES JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and am in agreement with his conclusions. I would simply add two general observations in relation to directions on attempt. The first is that the comments of Underwood J in Nicholson in relation to the "equivocality" test may have less force in this State. In Tasmania, attempt is defined by s 2(1) of the Criminal Code as -

"an act or omission done or made with intent to commit [the] crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime."

But the requirements of the s 4 definition of attempt are different, and it is difficult to see how an intention to commit a crime can be manifested by an overt act which is equivocal. To ask in terms of the test formulated by Norval Morris and adopted by Stable J in R v Williams; Ex parte Minister for Justice & Attorney-General,[16] whether the act "cannot reasonably be regarded as having any other purpose than the commission of that specific crime" may therefore be more apposite in this State. I hasten to say, however, that I do not think there was anything equivocal in the spreading of petrol about the premises in this case.

[30] Secondly, one starts from the position that the s 4 definition of attempt does not in its terms require that the relevant act or acts go beyond preparation. In some cases, however, there may be a live question on the evidence as to whether the suspected offender has put his "intention [to commit an offence] into execution by means adapted to its fulfilment" and has performed an overt act manifesting that intention; or whether, despite his intention, his actions have not yet reached that point. In such a case the jury may well be assisted by a direction as to the distinction between preparation and attempt. This was not that case. The jury was instructed as to the elements of attempt; and in the absence of any issue being raised as to whether the spreading of the petrol was an overt act manifesting the intention to commit arson and the beginning of the putting of that intention into execution by means adapted to its fulfilment, there was no reason for the learned trial Judge to direct further.

[31] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the reasons of His Honour and with the proposed order.

[11] Suggested Direction [2-250] in the Supreme Court Benchbook, published by the Judicial Commission of NSW (2002 version).

[12] Suggested Direction No 12 in Part 4 - Offences - in the work published by the NZ Institute of Judicial studies.

[13] Direction suggested at para 8.2/2, published 1995.

[14] Dhanhoa v R [2003] HCA 40; (2003-2004) 217 CLR 1, per McHugh and Gummow JJ at [38] and [49].

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