Rossi v The Queen [2012] VSCA 228

Mr C Hyland, Solicitor for Public Prosecutions (Ms B Barby)

1 After a trial in the Supreme Court the appellant was found guilty by a jury on a charge of intentionally causing serious injury to Peter D'Amore. The appellant was acquitted on charges of attempted murder, attempted defensive homicide, recklessly causing serious injury and reckless conduct endangering life.

2 At the time when the offence was alleged to have been committed, Kim Emery had recently moved out of the victim's house to live with the appellant. There were disputes between Ms Emery and Mr D'Amore as to items of property.

3 On 16 April 2009, Mr D'Amore went to the appellant's house to discuss the collection of Ms Emery's belongings from his house. An argument developed, which led to the appellant returning a mattress and other items of property to Mr D'Amore's premises. Mr D'Amore threatened the appellant with a piece of wood and took fragile items belonging to Ms Emery to the appellant's house and smashed them on the driveway.

4 The appellant approached Mr D'Amore's house, carrying a bucket which contained diesel fuel and also carrying a blow torch. Mr D'Amore left his house to confront the appellant and threw a wooden plank towards the appellant's feet. Mr D'Amore said that the appellant threw the diesel fuel over Mr D'Amore's head and upper body and a fight ensued in which the appellant and Mr D'Amore exchanged punches and, as Mr D'Amore said, he slipped over.

5 As Mr D'Amore got up, he realised he was on fire, although he said he did not understand how that had come to occur. His hair, back, arm and some of his clothing was on fire. Mr D'Amore got into a shower to quench the flames and an ambulance arrived.

6 At the trial the appellant did not dispute that he had caused the injuries to Mr D'Amore or that the injuries were serious. The matters in issue were whether the appellant intentionally caused the injuries and whether he was acting in self defence. The principal defence advanced by the appellant was that he had merely intended to set fire to the mattress lying on the driveway and not to harm the victim.

7 In his evidence at the trial the appellant said that when he arrived at Mr D'Amore's house, he was about to throw diesel fuel on to the mattress lying on the driveway when Mr D'Amore charged at him and ran 'in the path of the fuel that was in the bucket'. The appellant said that Mr D'Amore pushed him back against the fence and hit him. He said:

I brought this arm up and I've ignited the torch and the second I did that it was just, it was scary because I remember igniting the torch and then it was just a fireball, I felt the heat on my face, I felt as if Peter's let me go and at the same time I've just pushed him off me and I've pushed him off me and I was in shock, I just got scared, I was frightened, I just couldn't comprehend what happened at that point.

The appellant said that he pressed the button on the oxy torch to 'make [Mr D'Amore] back off and leave [him] alone'. He said he was 'frozen for a few seconds, I didn't do anything, I just stood there trying to think what happened' and then he noticed that his hand was bleeding. He said he then walked home with Ms Emery.

8 The appellant has been granted leave to appeal against his conviction.

9 There are two grounds of appeal. The first ground of appeal is as follows:

A substantial miscarriage of justice resulted from the learned prosecutor, in his closing address, inviting the jury to engage in consciousness of guilt reasoning with regard to the appellant leaving the scene. In particular, a miscarriage of justice resulted from each of the following:

(i) the refusal of the learned trial judge to discharge the jury;

(ii) the learned trial judge failing to direct the jury that it must not take the matter into consideration when considering the issue of specific intent with regard to all charges; and

(iii) the learned trial judge directing the jury that the issue was relevant to the appellant's credibility.

10 In his closing address to the jury, the prosecutor said that the appellant was lying in his account of the circumstances in which the victim was set on fire. The prosecutor said:

He tells you in the course of his evidence that he ignites this torch and you have to do it in quite a deliberate way. Two aspects to it. He tells you that he was face to face, chest to chest with a man who's covered in diesel. Now, you are allowed to use your experience of life in assessing this evidence ... This is a man who's soaked in it and of course the accused man tells you he didn't really perceive that as a problem. He tells you that ... he panics after he set fire to Peter D'Amore. Really it's only at that stage that he says he realises what had happened but he runs off rather than does anything else.

See, I suggest to you that running off in that way is reflective of what exactly he was intending to do. You might have thought he would've stayed and helped once he realises what's actually happened, as he would have you believe it.

As I say, you know, the accused has said to you that he only intended to set fire to the mattress. This is an example of something where you can reject his evidence if you choose to. It's a matter for you. I urge you to say he's not telling the truth when he says that statement to you.

11 Defence counsel submitted to the trial judge that the prosecutor in his closing address was inviting the jury to engage in consciousness of guilt reasoning. The prosecutor, on the other hand, told the trial judge that his comments were not intended to suggest consciousness of guilt reasoning, but went solely to the appellant's credit. The prosecutor said:

It's an argument related to the evidence of the accused and how the jury should view it. Once it's put to him, and he accepts that he left the scene without rendering any assistance, it's put on the basis that if his intent was to go there to set fire to a mattress and he has, in a way that he described to the jury, actually set fire to the accused, he wouldn't have bolted in the way he did. That's all it goes to. It goes to an issue of credibility to do with the explanation that he's given for the sequence of events that unfolded.

12 The trial judge refused an application to discharge the jury, saying that he could give the jury an appropriate warning which would limit the use to be made of the evidence as to flight.

13 In his charge, the trial judge said to the jury:

There is some evidence which has been given during this trial that after the fuel was placed on Mr D'Amore and there was a scuffle and then the fuel was ignited the accused man left the scene with Kim Emery. There was no dispute that he left the scene, almost immediately.

Some comments were made to you by [the prosecutor] in his final address about the fact that Mr Rossi did that, and I need to give you a legal direction about it. To the extent that [the prosecutor] suggested that Mr Rossi's leaving the scene in some way reflected an intent by the accused to commit the offence of attempted murder, that is not correct, and the evidence cannot be used by you in that way. The fact that Mr Rossi left the scene, as he agreed he did, may have some relevance to the credibility of his explanation for what occurred, but I emphasise that what you must not do is reason that because he left the scene at the time he did, that that in some way demonstrates that he is guilty of attempted murder.

The evidence that he left the scene is not evidence of guilt and you may not use it as such. The only relevance of this evidence is that it may assist you in making some assessment of the credibility of his account of what occurred.

15 If the trial judge had limited his directions on this aspect of the case to an injunction against using the evidence that the appellant decamped to infer that the appellant was guilty, I doubt that the appellant could justifiably complain. Unfortunately, his Honour went on to say that the jury could use the evidence in assessing the appellant's credibility. In my opinion, an obvious way in which the evidence of flight could impact upon the appellant's credibility was that it constituted an implied admission that the appellant deliberately set fire to Mr D'Amore. This was not a case where it was alleged that the appellant told a lie, as to which the High Court observed in Edwards v R:

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore, to an implied admission of guilt.[1]

16 In my view, there was a significant risk that the jury may have reasoned that the appellant leaving the scene was relevant because it was inconsistent with the appellant's innocence, that is, the absence of intent to harm Mr D'Amore. The prosecutor invited the jury to reason that if the appellant was innocent as he claimed, in that he lit the torch by accident or in self-defence, he would have stayed and helped the victim. In other words, the appellant acted as a guilty man would have acted.

17 By reason of the prosecutor's invitation, it was incumbent upon the trial judge to instruct the jury that there might be reasons for flight apart from realisation of guilt. The appellant may have run off out of panic or to escape an unjust accusation. As the Court said in R v Cianter, speaking of flight from the scene of a crime:

Consistently with Edwards, the judge should direct the jury that there may be many reasons for post offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt or moral wrong doing falling short of criminal behaviour, or to protect some other person or to avoid a consequence extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence.[2]

In the present case I consider that the trial judge erred in failing to give such a direction.

A substantial miscarriage of justice resulted from the learned trial judge ruling Ms Sally Marie Pearce was "not available to give evidence" pursuant to s 65(1) of the Evidence Act 2008, and that therefore her previous representations could be adduced as evidence.

19 Ms Pearce, who lived in a house 50 metres away from the scene of the fire, saw the appellant set alight to Mr D'Amore. According to a statement she made to the police on 16 April 2009, she saw the appellant carrying a white bucket in one hand and a blow torch in the other. Ms Emery was yelling, 'I'm gunna fuckin' kill ya'. Something was yelled back. Ms Pearce later saw the bucket containing diesel fuel being tipped towards Mr D'Amore and then the blow torch applied to him, following which he lit 'up in flames from his chest up.'

20 Ms Pearce gave evidence at committal proceedings. She said the contents of her statement were true and she was cross-examined.

21 The trial was listed for hearing in August 2010. A subpoena addressed to Ms Pearce was issued on 2 June 2010 but attempts to serve it were not successful.

22 The prosecutor applied to lead evidence of the statement made by Ms Pearce and her evidence at the committal hearing pursuant to s 65 of the Evidence Act 2008.

23 The section provides that the hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence if the accused cross-examined the person who made the representation about it and that person is not available to give evidence at the trial. Clause 4(1) of the Dictionary in the Act provides, so far as is presently relevant, that a person is taken not to be available to give evidence if:

(e) all reasonable steps have been taken, by the parties seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the parties seeking to prove the person is not available, to compel the person to give the evidence, but without success.

24 A police officer gave evidence that several attempts were made to serve the subpoena upon Ms Pearce. A house was rented by Ms Pearce. The house was vacant, although Ms Pearce was still paying the rent. Ms Pearce's daughter told the police that her mother did not wish to give evidence because of threats made to her. Ms Pearce had told the police of the threats in December 2009. Her daughter appeared to know of Ms Pearce's whereabouts but would not co-operate with the police. Attempts to trace Ms Pearce through the records held by VicRoads and Centrelink were unsuccessful.

25 The trial judge held that all reasonable steps had been taken to find Ms Pearce and secure her attendance and accordingly admitted her statement in evidence.

26 In my opinion there was a failure to take all reasonable steps to find Ms Pearce or to secure her attendance. Ms Pearce was important to the Crown case for she observed the manner in which the appellant used the blow torch. In December 2009 the police knew that threats had been made to deter Ms Pearce from giving evidence and were in contact with her, yet they did not serve her with a subpoena. At the time of the ruling by the trial judge, phone record searches were outstanding and were anticipated to be available shortly. The police did not check Ms Pearce's uncollected mail, conduct surveillance at addresses with which the witness was associated or make enquiries of Ms Pearce's associates. No order for substituted service was sought and accordingly no warrant could be issued.[3]

27 For the foregoing reasons, I consider that there were errors made in the trial. The question becomes whether the appellant has established that as a result of the errors there has been a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.

28 A substantial miscarriage of justice will occur if errors in the trial could have reasonably made a difference to the trial outcome or if the error was of a fundamental kind depriving the appellant of a fair trial or amounting to an abuse of process. The errors in the present case were not fundamental. The question accordingly is whether the errors could have influenced the verdict. The task for this Court is not to predict what the jury may have done but to decide whether a substantial miscarriage of justice has actually occurred.[4]

29 The central issue in the case was the state of mind of the appellant. There was no dispute that the appellant doused Mr D'Amore with diesel fuel and set it alight. In his closing address to the jury, defence counsel emphasised the question of the appellant's intention and said that there was no intention on the part of the appellant to kill or seriously injure Mr D'Amore. Counsel said:

I'm only concerned with what is the heart and centrepiece of this trial ... It's the intention and state of mind of Mr John Rossi, at the point of time at which Peter D'Amore is injured. That is the centrepiece. That is what you will have to struggle with in your deliberation because that's the key to the trial.

30 The Crown case, in my view, was overwhelming. The notion that the blow torch was lit accidentally was fanciful. The appellant took the diesel fuel and the blow torch to Mr D'Amore's house. Although the appellant said that Mr D'Amore ran into the diesel fuel as he threw it, the appellant evidently did not aim at the mattress on the ground and a number of witnesses described a deliberate action on the part of the appellant in throwing the bucket towards Mr D'Amore. The

appellant conceded in cross-examination that in order to ignite the blow torch it was necessary to perform two actions, press a button and pull a trigger. It is hardly likely that the blow torch could have been ignited by accident and the appellant did not give evidence of a chance lighting of the blow torch.

31 As to self-defence, in his evidence the appellant said that he deliberately lit the blow torch 'to scare Peter off and to make him back away from me.' Unsurprisingly, his counsel did not contend in his address to the jury that deliberately turning a blow torch on a man soaked in diesel fuel was a reasonable response to an attack by an unarmed man. Defence counsel said only that the appellant had no intention to kill or seriously injure Mr D'Amore.

32 In my opinion, the appellant has not established that there has been a substantial miscarriage of justice. Accordingly, I would dismiss the appeal.

33 I agree, for the reasons given by Buchanan JA, that the appellant has not established that a substantial miscarriage of justice occurred. I too would dismiss the appeal.

34 I concur in Buchanan JA's judgment and have nothing to add.

[1] [1993] HCA 63; (1993) 178 CLR 193, 208 (Deane, Dawson and Gaudron JJ).

[2] [2006] VSCA 263; (2006) 16 VR 26, 52.

[3] Cf ZL v R (2010) 208 A Crim R 325.

[4] Weiss v R [2005] HCA 81; (2005) 224 CLR 300, [41].