R v Smith[2007] QCA 253

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA: The appellant was convicted after a trial of the offence of arson and sentenced on 21 February 2007 to 27 months imprisonment with an eligibility for parole on 1 February 2008.  It should be noted that effectively the sentence imposed was 54 months imprisonment with eligibility for parole at 25 months.  That was because the appellant had served 405 days in custody which could not be taken into account as pre-sentence custody. 

2. The appellant was represented by counsel at trial, but prepared the notice of appeal against conviction and application for leave to appeal against sentence himself, and conducted his own case when the matter was called on for hearing before this Court.

3. The grounds of appeal as stated in the notice of appeal are argumentative and somewhat incoherent, but the ground that the "conviction is unsafe and unsatisfactory and contrary to law" is included. It is also alleged that the sentence was manifestly excessive.

4. Much of the argumentative material stated in the grounds of appeal can be ignored. For example, the appellant alleges that the evidence of the security guard, Ahern, should be disregarded on the ground that he did not have any credibility because he gave false evidence that he was the holder of a current drivers licence on the night in question. However, there is no mention of a drivers licence in the course of Ahern's evidence.

5. Similar unsupported allegations were contained in the appellant's oral submissions. For example, he alleged that the evidence established that the witness R G Bishop had a gun, or at least part of a gun, in the boot of the car he was using when it stopped outside the residence in question on the evening before the fire.  However, there is no evidence of that at all.  The closest one can get to that proposition is a statement by the witness Currey that on an occasion at about the time alleged he saw a male person standing at the open boot of a motor vehicle outside the house in question. 

6. In his helpful outline of submissions, counsel for the respondent has distilled from the appellant's material the following points for consideration on the hearing of the appeal:

1. "The verdict of guilty was unreasonable";

2. "The trial judge's directions to the jury were unbalanced";

3. The scientific evidence from the witness Nash was inadmissible;

4. The evidence of Ahern was inadmissible;

5. "The prosecution failed to lead evidence in relation to the good character of the appellant";

6. "The trial judge should have upheld a no case to answer submission at the conclusion of the Crown case";

7. Adverse media publicity of the trial prejudiced the appellant's fair chance of acquittal;

8. Presentation of the appellant in prison clothes and handcuffs before the jury panel prejudiced his fair chance of acquittal;

9. There was inadequate police investigation which prejudiced the appellant's fair chance of acquittal.

7. The case against the appellant was largely a circumstantial one. The prosecution relied heavily on motive and opportunity, and the conduct of the appellant after the fire, as pointing to the conclusion that it was the appellant who lit the fire. The appellant did not give evidence.

8. A reading of the summing up does not lead to the conclusion that it was unbalanced. The trial judge presented the evidence and the arguments of counsel to the jury in a balanced way, leaving it to the jury to determine whether they could be satisfied beyond reasonable doubt that it was the appellant who lit the fire.

9. The only concern I have about the summing up was not raised by the appellant. Before the Crown prosecutor opened the case the trial judge addressed the jury outlining what would happen in the trial and giving them some directions as to their role. In the course of so doing he said that the appellant was "entitled to be presumed by you to be in fact not guilty of that charge". He went on to say that that was the right of every accused and that it would remain with the appellant "throughout this trial". However, when the judge came to sum up he did not actually use the phrase "presumption of innocence" at all. He stressed on numerous occasions in the summing up that the onus was on the prosecution to prove guilt. As he said on one occasion: "There is no onus upon Mr Smith, or indeed any other accused, to prove anything at all. And the Crown can only prove his guilt if it proves every necessary element of the offence that is charged against him." He emphasised on a number of occasions that the verdict must be "based on the evidence" and he explained to them what constituted evidence. Having regard to the summing up as a whole every juror must have recognised that a verdict of guilty could only be returned if each juror was satisfied beyond reasonable doubt that the only inference open from the evidence was that the appellant lit the fire. In those circumstances, though judges should invariably refer to the presumption of innocence in the summing up, the failure to do so in this case did not amount to a misdirection and did not prejudice the fair trial of the appellant.

10. The fire in question occurred shortly after 5.00 am on the morning of 6 July 2005. Sergeant Smith, a police officer in the Forensic Services Branch, travelled from Brisbane and inspected the fire damaged house at about lunchtime on 6 July 2005. The witness Nash, an insurance fire investigator, inspected the house on 8 July 2005 and gave evidence as to his findings. All witnesses agreed that the fire started in the bedroom in the southeast corner of the house and that appears never to have been disputed. Sergeant Smith took samples for analysis to determine the presence of any accelerant. His testing did not reveal the presence of any accelerant, and he said that was not surprising because in most instances any accelerant is totally consumed by the fire. Nash also took a number of samples for testing, and a sample taken from carpet and paper in the south-eastern bedroom revealed "residues of a medium petroleum distillate or a weathered medium petroleum distillate similar to kerosene". In his evidence in chief he went on to say that he "wasn't able to make any conclusions because I didn't know whether there was a natural explanation for that product being in that location or not because I didn't know the history of that room". He went on to say that if there was no natural explanation for the presence of distillate he would conclude from that that the fire had been deliberately set. An admission was made by counsel for the appellant that "no chemicals or flammable liquids [were] stored in the house other than the standard cleaning products that are usually kept in sinks or underneath sinks."

11. The point taken by the appellant on the appeal was that numerous persons had been, or may have been, on the site contaminating it between the time of the fire and when Nash made his investigation on 8 July. That is a matter which was obvious to the jury and the evidence of Nash was not a major factor in the evidence against the appellant. The evidence of Nash was clearly admissible; the time consideration only went to the weight, if any, which should be given to his evidence. There is nothing in that ground of appeal.

12. I have already referred to the ground on which the appellant contends the evidence of the security guard Ahern should have been held to be inadmissible. There is no substance in that ground.

13. There was material before the jury establishing that the appellant was a former police officer. The appellant made a 000 phone call to Maryborough police the evening before the fire, and also on that evening made a lengthier call to a "teleclaims" insurance office. A transcript of each of those calls was placed in evidence. In those calls the appellant made a number of self-serving statements as to his good standing as a police officer. There was also evidence led that electricity and gas had been disconnected from the house in question at the instigation of the appellant. There is, in my view, nothing in the appellant's contention that the prosecution failed to lead evidence in relation to his good character such as his conduct in disconnecting the electricity.

14. At the close of the prosecution case counsel for the applicant made a submission of no case to answer. After argument the trial judge ruled that it was reasonably open to the jury on the evidence before them to conclude that the fire was deliberately lit and that it was the applicant who lit it. The ruling by the trial judge was clearly correct.

15. During oral argument the appellant made much of what he contended was adverse media publicity which prejudiced his trial. He placed before the Court a copy of a newspaper article which appeared after the first day of trial which was headed: "Ex-cop of Tiaro in court on arson"; on the following page there was also the heading: "'I'll put a bullet in you': court hears of threat". The content of the newspaper articles accurately reflected evidence given during the first day of trial. The headlines were somewhat sensational, but they did not contain any factual material contrary to the evidence. The appellant also complained that the newspaper referred to an "emotional Mrs Smith" giving evidence and submitted that was prejudicial to him. The newspaper reference could have been to transcript p 21 where it appears the witness was a little distressed.  Whilst the trial judge did not specifically instruct the jury to ignore any newspaper reporting of the trial he did, on a number of occasions, instruct them that their verdict had to be based on evidence led in the trial only, and he gave detailed instructions as to what constituted evidence.  Specifically in his remarks at the outset of the trial he told the jury: "…if by any chance any one of you has heard anything at all about the circumstances giving rise to this matter before coming here today, you should put that knowledge out of your mind and act only on the basis of the evidence that's called during the course of the trial."  That was specifically repeated in the course of the summing up.

16. The appellant also placed before the Court a newspaper account of proceedings after he was found guilty, which included a photograph of him being led handcuffed from the court. That could not have in any way influenced the jury in the course of their earlier deliberations.

17. In the circumstances it has not been established that adverse media publicity prejudiced the fair trial of the appellant.

18. Next the appellant relies on the fact that he was brought into court before the jury panel in handcuffs, and that, he asserted, prejudiced his fair chance of acquittal. Because of the layout of the historic courthouse in Maryborough where the trial took place an accused person can only be brought into court through the public entrance. He was not dressed in "prison attire" when the trial proper commenced on 19 February 2007. His counsel made no application for the discharge of the jury based on this contention, and in the circumstances the appellant has not demonstrated that he was deprived of a fair trial because of the circumstance that he was seen by members of the jury panel to be handcuffed.

19. The appellant then contends that there was inadequate police investigation which prejudiced his trial. Under this heading he refers to the fact that police officers did not seize the clothing he was wearing on the morning of 6 July 2005 for the purposes of scientific investigation. Because of events which occurred the evening before the fire the applicant was considered a suspect once the fire was noticed. Defence counsel submitted to the jury that it was "astonishing" that the appellant was not questioned in some detail on the morning of the fire. However, on that morning only one police constable was present and he saw his primary responsibility that of maintaining the crime scene until scientific officers arrived.

20. The evidence before the jury was that there was nothing about the appellant or his clothing when first seen on the morning of 6 July 2005 pointing to him as the arsonist. Scientific examination of his clothing could only have strengthened the case against the appellant; if nothing adverse was found the position would have been exactly the same as that which was presented to the jury.

21. Again there is no substance in the appellant's contention.

22. On the evening before the fire the appellant claimed in the 000 phone call to Maryborough police, and in the call to the insurance office, that his former wife, and members of her family, had stolen property of his valued at $10,000, by removing that property from the house. The appellant made much of that contention in the course of his oral submissions and also asserted that the evidence of Sergeant Rowling should be rejected because he did not make some official report about that alleged theft.

23. Immediately before counsel addressed the jury, and in the absence of the jury, there was an exchange between counsel and the trial judge in the course of which counsel for the appellant said: "There is no evidence that she actually took anything. There's only the allegation." That was clearly a reference to the appellant's allegation with respect to his ex-wife stealing property. There was no evidence at all before the jury of the appellant's ex-wife, or members of her family, taking any of his property. To the contrary, there was evidence from a number of witnesses that the appellant had been seen driving away from the house with property in a horse trailer in the days before the fire.

24. It remains to consider whether or not the verdict of the jury was "unsafe and unsatisfactory and contrary to law".

25. The appellant was married to Margaret Smith from 1978 to 2004; they separated in 2000 and thereafter there were protracted and acrimonious custody and property settlement proceedings in the Family Court. Mrs Smith had purchased the land at Lot 3, Smith Avenue, Tiaro prior to the marriage and the appellant, together with members of his wife's family, constructed the family home there. Title to the property always remained in the name of Mrs Smith. After the separation Mrs Smith moved to Kingaroy.

26. It is sufficient to say that ultimately the Family Court directed the appellant to vacate the subject property by 1 July 2005. On Saturday 2 July 2005 Mrs Smith went to the property with her father and brother and observed, and photographed, possessions of the appellant in the house. Mrs Smith arranged for a locksmith to install new locks.

27. At about 4.30 pm on Tuesday, 5 July 2005 Mrs Smith returned to the property with her father and brother and noted that the locks placed on the garage door on 2 July 2005 had been drilled out. According to the evidence of Mrs Smith and her father the appellant then confronted them and said words to the effect of: "…get off my property, I'll put a bullet in you". Mrs Smith gave evidence that the appellant pushed her in the back with a gate as he closed it. Mrs Smith and her relatives then returned to the nearby motel where they were staying.

28. Mrs Smith had arranged for a security guard to watch over the premises during the night of 5-6 July. At about 6 pm Mrs Smith and her father drove back to the house to check if the security guard was there. They stopped their vehicle outside the house in question but drove away when they noticed the appellant in the neighbouring yard – the house owned by the witness Currey.

29. Police officers Rowling and Zarkovich gave evidence that they had occasion to interview the appellant about another matter on 29 June 2005. After the conversation with respect to that other matter had concluded, each of those police officers gave evidence that the appellant said words to the affect: "I don't care what the Family Law Court say, she won't be getting the house".

30. Late on the afternoon of 5 July there was contact between Mrs Smith and Constable Everlyn who was then stationed at Tiaro. He went to the house in question looking for the appellant but there was no one there. He then heard the appellant "yelling from the next door neighbour's house" so he went there and recorded a conversation with the appellant. The tape recording of that conversation was played to the jury.

31. In the course of that recorded conversation the appellant alleged that $10,000 worth of property had been stolen from the premises. He specifically alleged that Mrs Smith had unlawfully taken that property. He asserted that he was staying with the next door neighbour in order to "protect my property". Generally the jury could have regarded the conversation as demonstrating that the appellant was aggressive and confrontationalist with Constable Everlyn. Ultimately the Constable indicated to the appellant that he could stay at the neighbour's house overnight, but should not enter the subject house.

32. Ahern, the security guard, gave evidence that he arrived at the premises in question late in the afternoon of 5 July. He was shown the house in question by Mrs Smith. He was instructed that he could walk around the house, but he should not go inside. Shortly after he arrived he was approached by the appellant who shone a spotlight into his face. The appellant demanded to know his name and address, and then the appellant informed Ahern he should "not … go into the house – not go into the yard because locks had been smashed off the house and $10,000 worth of goods, whatever, had been taken, and if anything else was missing I'd be held responsible". The appellant also said to Ahern: "Make sure you don't go to sleep because there'll be trouble."

33. Up until about 10.30 pm the appellant confronted Ahern on "quite a few times".

34. The jury had plans and photographs of the area surrounding the house in question and the neighbouring house owned by Currey. They were apparently the only two houses in the street and there was bushland surrounding them.

35. Shortly after 5.00 am Ahern said that he "could hear noises" but was unable to identify what was making that noise. Because of that he "went for a walk down the end of the street – to the left down to the end, then I walked back up towards the other end, and when I was up towards the other end I heard a noise, like a whooshing sound, which was obviously the fire starting." He then used his mobile phone to call the fire brigade.

36. Currey gave evidence that he had not spoken to the appellant until the days preceding the fire. In the days leading up to the fire he had seen the appellant "shifting stuff" out of the house using a horse float. His first direct contact with the appellant was on 4 July when the appellant approached him about electricity. The appellant said that electricity to the house had been cut off and he wanted to run a lead from Currey's house so that he could operate a fridge. Currey initially agreed to that.

37. On 5 July Currey saw people outside the house in question in a car with a trailer attached. That was obviously Mrs Smith and members of her family. Sometime after that the appellant asked Currey could he leave his car in Currey's yard, and that was agreed to.

38. Currey then gave evidence that after the police had spoken to the appellant later that evening he agreed that the appellant could stay at his place; arrangements were made for the appellant to sleep in the downstairs laundry. The appellant and Currey drank some beer and at around about 9.00 pm Currey said to the appellant: "Well, you better go down and go to bed". Currey himself then went to bed and heard nothing until he was awoken by his wife about 6.00 am the following morning. He then ascertained that the neighbouring house had been burnt. Currey then went to the laundry and noted that the appellant "was still in the laundry … laying on the bed".

39. He noted that the appellant's shoes were near the door but he still had socks on his feet and "he was snoring"; he then went and spoke to the police. He said that he noticed his footprints on the wet grass, but there were no other observable footprints on the grass. He then went back to the appellant and said: "Wake up, your house has been on fire." To that the appellant responded: "Oh, fuck no." Currey said to him: "Well, you can't go over there because you're not allowed over there" and "I've told the police that you're here, so just wait here and someone should come over." Currey said that the appellant seemed "pretty upset about it" and replied "well, yes, you're probably right".

40. According to Constable Everlyn the appellant left the area driving a motor vehicle at about 8.35 am that morning without making any approach to police officers. The appellant was not interviewed by police before he left.

41. Mrs Smith and her father became aware of the fire when they heard sirens sometime after 5.00 am on the morning in question. Mrs Smith gave evidence she was too distressed to go to the scene that morning.

42. In evidence both Mrs Smith and her father Mr Bishop denied on oath lighting the fire or getting anyone to light the fire on their behalf.

43. I have already referred briefly to the evidence of Smith and Nash as to their investigations into the cause of the fire. It was clearly established, and not contested, that the fire started in the bedroom in the southeast corner of the house. Electricity had been disconnected to the house so electrical fault could be ruled out as a possible cause. Also gas was not connected to the house.

44. Against that background the prosecution case relied heavily on the facts that the appellant had both motive and opportunity to set the fire, and also on a comparison of his conduct between late on the afternoon of 5 July and that on the morning immediately after the fire. Motive and opportunity were clearly established by the evidence. Again there was evidence on which the jury could conclude that the appellant had been aggressive and confrontationalist to his ex-wife, the police and the security guard on the evening of 5 July, yet after the fire he departed the scene without confronting anyone. It was for the jury to determine what use they could make of that change in behaviour, if in fact they accepted that such had been established.

45. In his summing up the trial judge referred to the fact that it was not disputed at the trial that "someone has deliberately set fire to the house." He then went on to say:

"The critical question, as I am sure you are all very much aware, is the allegation that it was the accused who set fire to the house.  That, it seems to me, is the only issue that is in any significant way in dispute in this case.  So the issue becomes, as it seems to me, can you be satisfied, or are you satisfied, I should say – are you satisfied beyond a reasonable doubt that it was the accused who set fire to the house? …

…

If you are to convict the accused you must be satisfied that the only reasonable inference which is open on the evidence before you is that he was the person who set fire to the house.  If you think any other inference is reasonably open, that is that any other – I will start that again.  If you think that on the evidence a reasonable inference can be drawn that some other person lit the fire then you must find the accused not guilty.  You can only convict if you are satisfied that the only inference which is reasonably open on the evidence is that it was the accused and no one else who lit the fire.  …

As you are aware, ladies and gentleman, the Crown essentially relies on a kind of trilogy of facts to persuade you of the accused's guilt.  They suggest to you, first of all, that the accused had motive to want to destroy the house, or at least to harm his former wife's interest by setting fire to the house.  The Crown urge upon you, secondly, that he had the opportunity, that he was able, if he was so minded to set fire to the house.  And the Crown also say to you when you look at all the circumstances, when you look at all the facts, there is no other person that it could be reasonably inferred might have set fire to the house, that the only person that could have done so was the accused.

…

[Counsel for the prosecution], in addressing you, first of all, suggested you would have no doubt that the fire was deliberately lit, and that, as I say, seems to be common ground between him and [counsel for the appellant].  [Counsel for the prosecution] went on to say the only question then is who lit the fire, and he asked you, perhaps rhetorically, who else but the accused.  He urged upon you that you would find that he had the motive, which was animosity towards his former wife; that he had the opportunity because he was next door.  As I say, the third thing he urged upon you was that there was no other candidate that, on the evidence, could reasonably be supposed to be likely to have lit the fire."

46. The summing up then continued to summarise the prosecution case by referring to the evidence that the appellant had said his former wife was not going to get the house despite the Family Court order, that Mrs Smith had changed the locks but they had been interfered with, and that the appellant had made threats to her and her father. He then referred to the two telephone calls made by the appellant on the evening of 5 July.

47. It is not necessary to refer further to the summary of the prosecution evidence contained in the summing up.

48. The judge then summarised the defence contentions. In that regard it was again pointed out to the jury that it was not for the appellant to prove that someone else lit the fire; it was for the prosecution to prove beyond reasonable doubt that the appellant was the only person who could have done so. Counsel for the appellant, the jury was told, accepted that there was evidence the appellant had motive, the background of the failed marriage, but that alone was not sufficient to justify concluding that it was indeed the appellant who had set the fire. The trial judge then specifically referred the jury to the defence contention that the accused "had a lot to lose by setting fire to the property". There was a large quantity of his personal possessions still in the house at the time of the fire. The trial judge then repeated defence counsel's submissions that the jury might well find that Mrs Smith had motive to set fire to the property. She was a "very frustrated lady by the morning of 6^th of July 2005"; she was being frustrated by the accused and his actions.  Specific reference was made of the conflict in the evidence between that of Mrs Smith and her father on the one hand and Currey on the other, as to whether the vehicle stopped and a man got out on the second time Mrs Smith visited the property on the afternoon of 5 July. 

49. The trial judge then reminded the jury of the defence contention that so far as opportunity was concerned Mrs Smith had as much opportunity as did the appellant of setting fire to the house. She was at the motel about 5 minutes walk away from the house.

50. Again it is not necessary to refer further to the judge's summation of the defence case. Clearly the summing up was balanced in that it contained a very full account of the defence case.

51. Having read the evidence, and the summing up, there is no doubt in my mind that there was ample evidence upon which a jury could have been satisfied beyond reasonable doubt that the only rational inference open was that it was the appellant who set fire to the house. It cannot, in my view, be said that a verdict of guilty of arson was unsafe.

52. It follows that the appeal against conviction should be dismissed.

53. On sentence the judge referred to the fact that the appellant was not entitled to any mitigation because of remorse or cooperation with the administration of justice. He noted that the fire was deliberately lit as an act of defiance to a Family Court order. There was a significant degree of preplanning associated with the offence. The phone calls on the evening of 5 July were part of a ruse to deflect attention away from the appellant.

54. The judge noted that significant damage, of the order of $120,000, was occasioned by the fire. However, there was no immediate risk to human life and there was minimal risk of the fire spreading.

55. The sentencing judge also took into account the various medical conditions with which the appellant was afflicted. He had apparently been assaulted about a week prior to the fire and had required hospitalisation for his injuries.

56. It was in those circumstances that the sentencing judge considered that a head sentence of four and a half years was appropriate. In the course of oral submissions the appellant did not seriously challenge the sentence which had been imposed on him; he was more concerned to ensure that it was not increased.

57. This Court has recently considered the issue of sentencing for the offence of arson in R v Johnson [2007] QCA 249 and a number of relevant authorities are discussed therein.  Bearing in mind that this matter went to trial, there was no evidence of remorse, and considerable damage was occasioned, a head sentence of four and a half years is well within range. 

58. It follows that there is no basis for challenging the sentence.

59. The orders of the Court should therefore be:

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence dismissed.

60. JERRARD JA: In this appeal and application I have read the reasons for judgment of Williams JA and the orders His Honour proposes, and respectfully agree with those reasons and orders.

61. MULLINS J: I agree with Williams JA.