R v Mazur [2000] VSCA 111

Court of Appeal (Vic)|2000-06-08|Before: WINNEKE, P., BROOKING and CHERNOV, JJ.A.

The applicant was the sole controller of the company which owned the restaurant business, leasing the building from the owner. It is clear that at the time of the fire the business was not doing at all well. The applicant's company had been running the business for about 11 months. He had guaranteed his company's payment of rent. By July 1997 the property was found to be in a run-down state. The monthly rental was $3,750. The rent for November 1997 was paid two weeks late and on 23 January 1998 the landlord sent a fax to the applicant (which was in his pocket at the time of the fire) complaining about the late payment of rent and the failure to honour a promise to set up a direct debit arrangement for the payment of rent and requiring that the overdue rent be paid at the latest by Tuesday 27 January.

There was a good deal of evidence that the restaurant had never done well while the applicant's company was running it. It was a large establishment, but the number of patrons was always small. By the time of the fire there was virtually no stock of food or liquor, and the business was moribund if not literally defunct. The company was being pressed by numerous trade creditors. It owed the bank a considerable sum of money on overdrawn accounts. On the night of the fire - which was, as I have said, a Saturday night - the restaurant did not have a single customer. The company's accounts showed that it had been trading at a loss.

At the time of the fire the applicant's company had the contents of the building insured against fire for $60,000 and there was fire insurance cover for loss of profits to the extent of $180,000. On 8 January 1998 the applicant had arranged with an insurance broker to increase the cover on the contents from $60,000 to $100,000 and to reduce the cover for loss of profits from $180,000 to $100,000, but these changes had not been put into effect by the time of the fire. After the fire the applicant's company made a claim under the insurance policy.

I have mentioned how a number of persons saw the premises on fire at about 11 o'clock on the night of Saturday, 24 January. They gave evidence at the trial. There were both civilian and police witnesses and I can sufficiently summarise their evidence in one respect by saying that it showed that at about 11 o'clock that night and shortly thereafter the applicant was, as the witnesses themselves were, at places in the streets of Heidelberg close to the restaurant from which it should have been apparent - as it was to those witnesses - that there was a fire in the vicinity of the restaurant building. Their evidence also showed that the applicant did not seem to be at all concerned about the fire or interested in it. According to their evidence, he seemed to be under the influence of alcohol. A number of the witnesses saw dark marks on the applicant's face and some of them described the marks as looking like soot. One witness - David Christiano - described the applicant as looking very hot and sweaty and with soot running on his face. His T-shirt was described as having black, sooty smudges. Christiano saw the applicant walking down Cape Street from the direction of the restaurant very shortly after he himself had seen the restaurant building on fire. At least one witness described the applicant as smelling very strongly of smoke, such as would be produced in a house or rubbish fire. It was clear that the applicant had taken from the restaurant a briefcase of documents relating to the restaurant and a bag of implements which were important to him as a chef. The Crown said that this was to save them from the fire he had deliberately lit.

Upon his trial the applicant, after an unsuccessful no case submission, stood mute and called no evidence. His counsel, making the final address, conceded that he must have been in the building when the fire started.

The applicant was interviewed by the police twice in the small hours of Sunday, 25 January. He was interviewed again on 12 February. According to what he said in the first two interviews, the restaurant business had been very good; the restaurant had been open the previous night, but there had been no diners at all; he and his wife had been there since about 6.30 p.m. And she had later gone home, while he had remained, doing some cleaning; after doing the cleaning he had locked up at about 10.30 p.m. or a little later and walked down to the Sir Henry Barkley Hotel, where he had had two beers; he had then walked across the road and was waiting for a taxi when the police intercepted him. No one had been upstairs in the restaurant that night. When he was in the street after leaving the hotel he had not seen any signs of the fire. He did not have a clue how the fire might have started. He could not explain the presence of what looked like soot on his face or comment on the suggestion that he had earlier smelled strongly of smoke. He had definitely gone to the hotel after closing the restaurant.

In the interview on 12 February he was asked about the insurance claim form he had signed. In this he said that on closing the restaurant he had gone to a 7-Eleven store to buy cigarettes and catch a taxi: no mention was made of a visit to the hotel. He then admitted that he had not gone to the hotel that night and explained his earlier statement that he had done so by saying that he was shocked because he could not understand why he was being arrested and by adding that he had had a bit to drink.

Dr Korytsky, of the Forensic Science Centre, gave evidence occupying 123 pages of transcript. She was a full-time fire investigator with two degrees. She had ten years' experience in her work. In her opinion the fire had started in a couch or chair in an upstairs hallway as a result of the application of direct flame to it. There were no electrical appliances in that area. (As already mentioned, the applicant told the police that no one had been upstairs in the restaurant on the night of the fire.) Dr Korytsky found no traces of an accelerant, but said that a small quantity might have been used without leaving any trace. It was put to her in cross-examination that it was possible that the fire had started in the ceiling, rather than in the hallway on the first floor, but she said that this was not a possibility at all. All sorts of possibilities were explored in cross-examination of Dr Korytsky and an electrician, Dennis French, who gave evidence of the re-wiring of the premises before the fire. Although the applicant's case appeared from the cross-examination of Dr Korytsky to really be that the fire had started in the ceiling or roof, it was put to her that the fire could have started accidentally by a cigarette on a couch or chair in the first-floor hall. All sorts of suggestions were put. So the possibility of a lightning strike was raised although there was no evidence whatever that there had been any lightning in the vicinity at the time of the outbreak of the fire. An electric motor was put forward in cross-examination as a possible culprit, but the witness firmly rejected that suggestion. Vermin were another suggestion. A short- circuit as a result of insulation becoming defective was another possibility explored. A suggestion put to the electrician when he was cross-examined was that the wrong fuse might have been put in at the meter box. Various hypotheses were put to Dr Korytsky by the defence, some of them rather offensively. She dealt with them in a way which I must say I find most convincing. I do not summarise the cross-examination or even give examples: it is all there to be read. The witness said emphatically, dealing with what was put forward as the main defence hypothesis, that it was not possible that the fire had started in the ceiling, not the first-floor hallway, that the defence hypothesis was not a possibility at all, and that she was not prepared to admit that hypothesis as a reasonable possibility.

The three grounds of the application for leave to appeal against conviction are in substance:

1. That the judge wrongly allowed into evidence writing in a reservations book made by the applicant's young son.

2. That he erred in allowing evidence of Dr Korytsky to be treated as expert evidence.

As is apparent, none of the grounds complains of misdirection, and I should add that no exception was taken to the judge's charge.

The reservations books kept by the applicant were put in evidence. They contained entries bearing on the profitability of the business at the time of the fire and in the period leading up to it and supported the view that the business was doing very badly. Scrawled in childish writing on the pages in one reservation book covering 23 and 27 January 1998, and then crossed out, were the words "bankrupt today". The Crown conceded that this was the writing of the applicant's ten-year-old son, as the applicant had said to the police in his third interview. The applicant there told police that his son had done this writing as a result of listening to a conversation between the applicant and his wife in which concern was expressed that the business was a bit quiet. An attempt was made at the trial to prevent this part of the exhibit from going into evidence. It would have been physically impossible to exclude the writing and if it was not to get before the jury it would have been necessary for a copy of the pages concerned of the book to be made. I think it was legitimate for the jury to be told how the words came to be written. The state of the exhibit had to be explained. Moreover, the words "bankrupt today" were relevant, since those words led to the applicant's answer to the police that he and his wife had been discussing their concern that the business was a bit quiet. In the first interview he had told the police that the business had been very good. In any event, having regard to the great quantity of other evidence showing insolvency, I do not think there can have been the slightest prejudice to the applicant from the fact that the words went before the jury.

As regards the second ground, before the jury were empanelled the judge was told by counsel that the defence had asked the Crown for more information about the witness Korytsky's qualifications. At that stage apparently all that the defence had been told by her statement was that she had a doctorate in chemistry. The judge's report tells us that after this matter was raised a further statement was supplied setting out the witness's qualifications and experience and that no objection was taken by defence counsel to her being called as an expert witness. At the close of the Crown's opening, in the defence reply to it, the evidence of Dr Korytsky having been briefly opened by the Crown, Mr Langslow told the jury that the defence said that this witness was not properly qualified to express an opinion on where and how the fire started. It is strange to see a question of admissibility raised before the jury in this way. Dr Korytsky gave evidence of study and experience which amply qualified her as an expert and no objection was taken to the reception of her evidence at any stage. What happened was this: having allowed the witness to give the whole of her evidence-in-chief without objection, and having cross-examined her at length on the basis that she was qualified to express opinions of the kind later challenged by the ground of appeal, and having elicited a good deal of evidence that supported the Crown case, Mr Langslow was suddenly moved in the course of her cross-examination, and not even then by way of objection, to challenge her qualifications to give expert evidence. This came out of the blue, when she had been giving evidence for about 100 pages of transcript. Counsel sailed on this tack for two or three pages, and then went about and continued to question her as a witness qualified to give opinion evidence. His intervening cross-examination had served only to confirm that she was appropriately qualified.

The submission put to us by Mr Thomas on behalf of the applicant was, not that Dr Korytsky was not appropriately qualified to give opinion evidence, but that there was an insufficient factual basis for the opinions expressed by her. This was his initial submission to us. He conceded that she was well qualified to express expert opinions.

His argument initially was that her evidence did not satisfactorily exclude the possibility that the fire was an electrical one. The witness gave her emphatic opinion where the seat of the fire was and her emphatic opinion that the fire was the result of the direct application of flame. If her evidence was accepted, the fire was plainly not an electrical one. It is not suggested by counsel that in forming her opinion about the seat of the fire and the direct application of flame she had acted on any fact concerning the premises which was not a fact which she had herself observed. In the course of discussion Mr Thomas ultimately conceded this and sought to rely instead on a different matter, not covered by the ground of appeal - namely, that the judge did not sufficiently direct the jury about how they should approach expert evidence in general and the evidence of this witness in particular. I have mentioned that no exception was taken to the charge. The judge directed the jury along the usual lines that they were not bound by the opinions of the expert, Dr Korytsky, and that it was for them to assess her opinions. He gave the jury a lengthy summary of her evidence, occupying about eight pages of transcript. The judge fairly summarised the points made by the defence with regard to her evidence. Mr Thomas did not specify what further things the judge should have said in his charge. In my view there was nothing wrong with the judge's charge, quite apart from the failure to take exception and the lack of any ground of appeal covering the point.

The third ground is that the verdict was unsafe and unsatisfactory.

This ground was not argued as requiring an independent assessment by this Court of the whole of the evidence. Rather it was based on the first and second grounds of appeal, the conviction being said to be unsafe and unsatisfactory essentially because of the erroneous reception of the evidence of the "bankrupt today" writings in the book and the erroneous treatment of the evidence of Dr Korytsky concerning the seat of the fire and its cause.

I have already said that in my view the "bankrupt today" writings were properly received in evidence but that even if they were not they cannot have done the applicant any harm in view of the other overwhelming evidence of the state of the business. I have also said that Dr Korytsky's opinion evidence was rightly received and in my opinion was strong. This really disposes of ground 3, but I will add that in my view the Crown case generally was a strong one. I have already mentioned that it was ultimately conceded by Mr Langslow that his client must have been in the building when the fire started. The applicant stood mute.

I think this conviction is unassailable. Before I leave it, I should mention one aspect of the trial. The applicant at first repeatedly asserted to the police that he had gone from the restaurant to the hotel, saying that he had been at the hotel for 35 to 40 minutes and had emerged from it very shortly before he was arrested. As I have mentioned, he later admitted that he had not gone to the hotel that night. Having regard to other evidence, his original statement can be taken as a statement concerning his whereabouts at the time when the fire started. (His counsel was, as I have mentioned, later to concede that he must have been in the restaurant building when the fire started.) The Crown wanted to put to the jury the commonsense suggestion that the applicant had lied about his whereabouts because he knew he was guilty. Not so very many years ago a trial judge would without hesitation have permitted the suggestion to be made, giving the jury a short warning to make it clear that lies may be consistent with innocence. But we seem to have allowed a jurisprudence of lies and consciousness of guilt to develop and to obscure what is a very old, very simple, very sound and very important notion, as I tried to point out in R. v. Chan (unreported, Court of Appeal, 12 March 1998), and as was recognized in R. v. Bandiera & Licastro [1999] VSCA 187. In Victoria, R. v. Renzella [1997] 2 V.R. 88 is perhaps the high water mark of the rising tide of complexity. But of late the tide has turned in this State as this Court has emphasized the need for an approach which, while grounded in principle, is pragmatic and simplified. This retreat from intricacy may receive some welcome impetus from Zoneff v. R. [2000] HCA 28. I repeat the concern expressed by this Court in Chan and Bandiera & Licastro that fear of a mistrial should not deter prosecutors from relying, and judges from permitting reliance, on lies as suggesting guilt in appropriate cases. By all means let caution prevail where the matter is at all doubtful. But the present was a clear case and one in which a relatively simple direction would have sufficed to enable the jury to consider whether the applicant had lied out of consciousness of guilt.

There is no reason why the Crown should not have relied on consciousness of guilt. The judge ruled against the Crown and told the jury that any lies the applicant had told about his whereabouts went only to his credit. His ruling was based on the consideration that the applicant might have told lies out of panic, or might, because of inebriation, not even have been telling deliberate lies. But these were matters for the jury's consideration in the light of an appropriate direction.

The application for leave to appeal against sentence is on grounds which I need not summarise having regard to the course which the application took.

The maximum penalty was 15 years' imprisonment. The applicant, a man of no prior convictions and with a good work record, and indeed a good record generally, was 49 at the time of the offence. Members of his family gave evidence on the plea and testimonials and victim impact statements were put in evidence.

There was material before the judge suggesting that the damage caused by the fire was about $450,000. His Honour, rightly if I may say so, was not prepared to accept that figure, as matters stood, as reliable, but it is clear that the loss sustained was very great. Police and firemen were in danger, not to mention the danger to other properties and perhaps persons. The judge was not satisfied beyond reasonable doubt that the applicant had lit the fire with the intention of defrauding the insurer. The applicant may have been lucky to escape such a finding, although his Honour no doubt had regard to the evidence of insobriety and the application is of course to be dealt with on the basis that the finding was not made. Even so, I have no doubt that the sentence passed cannot be impeached. I regard it as moderate. The offence was a serious one. Mr Langslow referred the judge to the decision of the Court of Criminal Appeal in Perrone (1989) 43 A.Crim.R. 366, where the imposition of a fine in a bad case of arson survived a Director's appeal against the powerful dissent of Gray, J. Counsel did not refer - although the judge did in his reasons for sentence - to the decision in Haddara (1997) 95 A.Crim.R. 108, where this Court said that the actual decision in Perrone was an unfortunate one. More bluntness is necessary, or the actual decision in Perrone will be relied on again, with unfortunate results. I think we should now say distinctly that the actual decision in Perrone was wrong. To say this is, of course, not to touch the proposition, accepted in Perrone, that in cases of arson a custodial sentence is not inevitable. That proposition requires no authority to support it. Accordingly, Perrone is a decision which, in my respectful opinion, is better not cited to sentencing judges in view of the danger that it will lead them into error.

Mr Thomas sought leave to file late notice of abandonment of this application. I would grant that leave.

I agree that the application for leave to appeal against conviction should be dismissed for the reasons given by Brooking, J.A. I also agree that leave to abandon the appeal against sentence should be granted. In doing so, it should be said that the Court is not unmindful of the applicant's previous good record and the sad plight in which he now finds himself.

That having been said, I agree with Brooking, J.A. that courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate. I agree with him that the case of Perrone should not be used as citation of authority to the opposite effect.

I also agree that, for the reasons given by Brooking, J.A., the orders proposed by him should be made.

The formal order of the Court is that the application for leave to appeal against conviction should be dismissed.

Leave should also be granted to the applicant to abandon his application for leave to appeal against sentence.

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