R v B[1997] QCA 6

[1997] QCA 6

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 323 of 1996

Brisbane

[R v. B]

THE QUEEN

v.

B

(Appellant)

Macrossan CJ

Davies JA

Moynihan J

Judgment delivered 14/02/1997

Joint reasons for judgment of Macrossan CJ and Davies JA. Separate reasons for judgment of Moynihan J concurring in the order.

APPEAL DISMISSED

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND DAVIES JA

Judgment delivered 14/02/1997

The appellant was convicted of an offence of arson under s.461 of the Criminal Code, the charge in the indictment being that he had "set fire to a structure, namely a telephone booth".

The booth in question was one of a block of three and there was undisputed evidence that fire damage had been caused within it and also evidence, although disputed by the defence, that the appellant and a companion had been involved together in causing it.  A third young person had been seen in the company of the two offenders but it was not suggested that he played any part in the commission of the offence and no further reference need be made to him.

The argument presented on the appeal was that such fire damage as had occurred had not involved any part of the "structure" of the booth and that the judge had wrongly ruled that damage to a telephone handset and to a light installation in the ceiling of the booth constituted damage to part of a "structure".  It will be necessary to look further at the terms of the judge's ruling and his subsequent direction to the jury as well as to the relevant evidence led at the trial.

The section under which the charge was brought reads in part as follows:

"Section 461 Arson 

Any person who wilfully and unlawfully sets fire to any of the things following, that is to say-

(a)  any building or structure whatever, whether completed or not

...

is guilty of a crime, and is liable to imprisonment for life."

At the trial, evidence for the Crown was led through a Detective Senior Constable Mercer who investigated the incident and Ms Parker, who was an eye witness of events.

Mercer, on arrival at the scene, spoke of observing some sort of burning damage to the telephone, the wall and the perspex light.  He saw burnt paper on the floor and the shelf of the booth.  He said that the handpiece was "just a melted blob on the end of a cord".  Through him a number of photographs were tendered and in his evidence he assented to a description of one of them, Exhibit 3, as showing the light inside the booth and "the scorch marks obviously on the wall and so forth".  The cross-examination of Mercer did not deal with the nature or extent of the damage to the phone booth or items attached or contained within it.

Ms Parker, who lived nearby and had a view of what occurred, described seeing two boys (sufficiently identified in the trial as the appellant and a companion) within the booth where the companion tore paper from a phone book and lit it and the appellant then held the handpiece down over the flame until it caught fire.  At that point they ran away together.                 While the boys were in the booth together, Ms Parker saw a number of indications of close collaboration between the two and she provided a description of it.

When the boys left, Ms Parker went down to the booth and in her words, "had a look at the fire and noticed there was a piece on the wall (she) did not know what it was but it was just a piece of board or something, something on it, and that caught fire ... ".  She watched for a time then went to an adjoining booth and made a call to the fire brigade at which time "it was pretty well alight".

The reliability of Ms Parker's observations was challenged in cross-examination particularly in respect of the several actions she attributed to the two offenders in the phone booth, but no questioning by defence counsel was directed to the effect of the application of fire to any part of the inside of the booth.  She did, however, describe the fire as being about eighteen inches high and said that it stayed the same.  She said that "it was only that part there that was on fire, coming up the wall there.  When I came down that was on fire still, that was gone, burnt".  The imprecision in the area she may have been referring to was not further pursued.

It seems that the defence believed there may have been a deficiency in the evidence led by the Crown and perhaps a tactic was deliberately pursued of not strengthening it by wider ranging questioning.  However this may be, immediately at the close of the Crown case a submission was made that there was no proof of an element of the charge, namely a setting fire to any part of the structure of the booth itself as opposed to something inside it.  It was suggested to the trial judge that the evidence went no further than showing damage by fire to the telephone handpiece and perhaps the light attached inside the booth.  Defence counsel's submissions referred to the photographs' depiction of a black mark above the telephone cord at the point where it met the stand for the telephone.  In answer to those submissions, the judge simply ruled in terms which, although they could have been more clearly expressed, sufficiently indicated his view that there was evidence of damage caused particularly appearing in the photographic evidence and that this damage was done to the structure or part of it with the result that he would allow the case to continue.  No further elucidation of the basis of the judge's ruling was sought at that point and the defence then proceeded to call the appellant to give evidence.

The appellant's evidence was directed to the part he played in the episode, his claim being, in effect, that his companion was solely responsible for the actions causing whatever damage had occurred.   His evidence did not enter into detail of the extent of damage to the booth or any constituent feature within it.  However, in some words occurring within his evidence there appeared to be something of a concession that the "phone booth" had caught fire.

The matters now raised in the defence submissions on the appeal were touched on in the barest manner in the judge's summing-up and no request was made for redirections.  The judge directed the jury that the phone booth was a structure for the purposes of the section and no challenge is made to the correctness of that proposition.  He then suggested to the jury that on the evidence of the photographs it may be they would have little hesitation in concluding that the damage was done by fire to the booth.  He added what appeared to be a reference to a submission made by the Crown namely that it was not in dispute that damage was caused by fire to the booth.  The judge sufficiently emphasised in his summing-up that the Crown case depended on the acceptability of the evidence given by Ms Parker dealing with the parts played by the appellant and his companion and the extent to which the two had been acting in concert.

At the trial, no objection was taken by the defence to any part of the summing-up, but after the jury had retired, they were brought back for the purpose of receiving further directions on two questions they had caused to be transmitted to the judge.  When the questions are looked at, it is obvious enough that the concern the jury had was with the part beyond mere presence which it had to be shown the appellant played in events if he were to be convicted either directly or as an accessory.  Although in the course of argument in the absence of the jury when the suitability of the terms of the response to be made to the jury's questions was being debated, some reference was made to the significance of damage affecting only the light and handset, no supplementary instructions were requested on the significance of limited damage of that kind in terms of the proof necessary for setting fire to a "structure".

It is possible to put to one side the principal matter debated before the jury, namely the extent of participation by the appellant in the actions that caused damage by fire because through Ms Parker there was ample evidence to satisfy the jury on this aspect.

The way the trial was conducted perhaps left open a possible issue whether there was sufficient evidence of fire damage to "structure", but for the jury's resolution of the matter the case was not directly made to depend on discriminating between different parts of the booth and items within it as constituting or not constituting "structure".  A possible difficulty is that the judge, in effect, simply said to the jury - you have heard the evidence and you can see in the photographs enough to convince you that there has been damage to structure - but he did not tell the jury what "structure" was, leaving that matter simply, in effect, to be understood in some ordinary everyday sense just as he left them to their own understanding of what "set fire to" involved.  A question might be whether, for the purpose of the issue raised on this aspect, that was enough.  In the circumstances of this case it should be concluded that it was.  The point taken in the notice of appeal was the correctness or otherwise of the judge's "ruling" on a particular point and not the adequacy of his summing- up.  It should be decided that the ruling, in effect of sufficiency of evidence, was not shown to be incorrect at the point at which it was given. 

The Crown does not appear to have confined its case by any restricting particulars.  The photographs, when examined, show extensive damage to the handset, the ceiling light fitting and a wall panel or panels to the left of and above the main telephone installation in the booth.   Ms Parker's evidence supports a conclusion that part of the back wall was burning.  

Further, no objection to the summing-up was taken at the trial and no relevant request for redirections was made.  Having initially sought a ruling on what, for the purposes of the case was involved in "structure", counsel did not return to the point but thereafter, so far as the record indicates, fought the matter on the narrow issue of the acceptability of Ms Parker's evidence. 

The elaboration called for in a summing-up will depend upon the matters that are in contention and the way in which the defence case is conducted will affect the extent to which it will subsequently be permitted to challenge an adverse verdict.   These considerations are sufficient to result in the dismissal of the appeal and to satisfy that the verdict was sufficiently supported by the evidence.  Although certain further questions aired on the appeal hearing do not, in the circumstances, call for final determination, it is as well before leaving the case to make some further limited observations.

The reference in s.461(a) to "or structure whatever" shows that some extension beyond what might be strictly described as a "building" is intended to be included.  A comparison might be made with the approach adopted by Gibbs J. in R v. Rose  (1965) QLR 42 that led him to decide that a caravan may be a dwelling house in connection with a charge of breaking and entering since "dwelling house" is defined by s.1 of the Code to include "any building or structure".  There may be some disposition to think of "structure" under s.461 as involving something built to a certain standard of complexity because it is used in a subsection defining arson, a crime carrying a maximum term of life imprisonment, but any such impression is not justified by reference to the ordinary dictionary meanings of "structure" or by reference to authorities reasonably discoverable which might bear upon the matter.  Dictionaries, e.g. Collins English Dictionary and the Shorter Oxford Dictionary, tend to support a meaning taken as corresponding to "anything constructed".  Other items dealt with in remaining parts of s.461 do not encourage a conclusion that the built object must be a substantial construction or of any particular value in economic terms to amount to "structure": compare, for example, the reference to a stack of apparently any size of cultivated vegetable produce in s.461(c).  Also, there is no reason to think that the relevant constructed object has to be a fixture if it is to be regarded as a "structure".  For example, a demountable shed may be regarded as a "structure" and note R v. Hamilton (1888) 3 QLJ 78 which attributed a very wide scope to the category of objects which might be the subject of an offence of arson with the result that a tent could be included as a dwelling house, that being mentioned in the definition of the offence as it applied prior to the enactment of the Code.

It may be that the very difficulty of defining a crime of arson in relation only to constructed entities of a certain nature, size or value, has been persuasive in a decision to leave the terms of s.461 quite broad and to make the range of penalty extend up to life imprisonment to cover all circumstances that might arise.   If the intention behind the section is otherwise or if for the future a different policy is to be adopted, some statutory amendment introducing a distinction amongst classes of constructions could be undertaken.  The most that should be suggested for consideration on the present occasion is that the association of "structure" in the relevant phrase with "building" may introduce some limitation upon a totally unconfined sense of "thing constructed".  In the subsection, as it presently stands, there may be involved some restriction to a constructed entity which either serves a purpose of protecting from the elements in support of some human activity, or of confining or containing things to be held within it or, in terms of its size, is ordinarily expected to function with a substantial degree of contact with the ground.  Thus, it would not be expected that a simple hand-held device would be included.

A different matter in respect of which some statutory amendment to the section could be considered relates to what is involved in the concept "sets fire to".  This phrase appears to have been adopted at a time when the principal building material which would be employed for internal use was wood and grave dangers were associated with it should it become ignited, whereas some modern structures can be damaged by the application of fire or heat without their burning in the sense of oxidising or having their chemical composition altered.  Some modern materials may, however, be melted and effectively destroyed.   Other common law jurisdictions have moved away from inviting the sterile debates that can be involved in determining whether any part of a structure has been consumed by fire as opposed to being simply scorched:  note the tension that is involved between two longstanding decisions dating from an earlier time, R v. Parker (1839) 9 Car & P 45;173 ER 733 and R v. Russell (1842) Car & M 541; 174 ER 626.  Thus, the Crimes Act 1900 (NSW) s.195(b) refers to damage "caused by means of fire" and the Criminal Damage Act 1971 (UK) s.1(3)  refers to "damaging property by fire".  In this context some illustration of the manner in which judicial interpretation can deal with the problem is provided by the decision of the California Court of Appeal in People v. Mentzer 209 Cal Rptr 549 (1985).  There the offence was arson and under the Penal Code it had to be shown that structure was burned.  The defendant had set a fire in a cemetery against a mausoleum and it was shown that the marble floor was broken, buckled and cracked from the heat and that the plaster walls were chipped.   It was held that supported a conclusion that within the meaning of the Penal Code the structure was burned.   It was said that an item is "consumed" if it is destroyed or devastated in whole or in part by fire and that if an item is ravaged or ruined by fire, it is "consumed" although not reduced to ashes.

These matters need not be further pursued on this occasion.

The appeal should be dismissed.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 14/02/1997

This is an appeal against a conviction for arson in respect of a telephone booth.  The ground of appeal is that the trial judge erred in law in ruling that the damage to the interior fittings of the telephone booth constituted damage to the "structure" of the telephone booth.  The circumstances giving rise to the appeal are adequately canvassed by the reasons in the joint judgment of the Chief Justice and Davies JA which I have had the advantage of considering.  It is unnecessary for me to repeat them here.  I agree, for the reasons which they canvass, that it has not been demonstrated that the ruling which, having regard to the time and circumstances of its making was, as to the sufficiency of evidence, erroneous.  I agree that the appeal should therefore be dismissed.