SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Muir JA.  I agree with the orders proposed by His Honour and with his reasons.

[2]  MUIR JA

Introduction

After a trial in the District Court in Cairns, the appellant was convicted of wilfully and unlawfully damaging a glass door and of wilfully and unlawfully setting fire to a house.  He was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence.  He appeals against his conviction for arson. 

[3] Section 461 of the Criminal Code relevantly provides:

"(1)Any person who wilfully and unlawfully sets fire to any of the things following, that is to say –

(a)a building or structure …

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

[4] The learned primary judge in his summing-up, directed the jury as follows:

"The elements … which the prosecution must prove beyond a reasonable doubt are … that the defendant did so wilfully; that is, the defendant either had an actual intention to set fire to the property or deliberately did an act aware at the time he did it that arson was a likely consequence of his act, and that he did the act regardless of the risk."

[5] No complaint is made of that aspect of the summing-up which follows the wording of the Bench Book.  Defence counsel, however, sought a direction that intoxication be taken into account in determining whether the appellant's conduct was such as to satisfy the elements of the offence.  The learned crown prosecutor also submitted that such a direction should be given.  Nevertheless, the primary judge refused to give such a direction and the appellant's central ground of appeal is that the failure to give the direction was an error of law.

The evidence

[6] The appellant's father, Mr Eustance, gave evidence to the following effect.  He owned the house at 59 Jones Street which was burnt down.  The relationship between father and son was reasonable except that when the appellant was intoxicated, as he frequently was, they would argue.  During such arguments the appellant had threatened that if his father "didn't leave part of the will to him he'd do something about it."  In evidence-in-chief Mr Eustance said that about a week before the fire, the appellant threatened to burn the house down if he was not left part of the house or the estate in his father's will.  In cross-examination he said that the threat must have been made before 26 July 2007.  Mr Eustance also conceded that the appellant did not know what was in his will.

[7]  On 26 July 2007 Mr Eustance obtained a protection order, to which the appellant consented, requiring the appellant to stay away from the house.  After the making of the order, police officers escorted the appellant from the house.  They subsequently brought him back for his clothing.  On that occasion the appellant took with him only two suitcases which Mr Eustance had packed.  He did not take with him computers which he had in the back room of the house or any other possessions. 

[8] Mr McKelvey, a local resident, gave evidence to the following effect.  He went to 57 Jones Street, next door to 59, in response to a telephone call from his sister.  He was watching the fire when something drew his attention to the presence of another person.  He called out "Is that you, Stan?" and the person responded "Yes."  He asked what he was doing there and was told, "I'm hiding from the fire".  Mr McKelvey went to assist the person, whom he identified as the appellant.  The appellant said, "No, leave me.  I've broken my ribs".  He went away for a while and came back.  He then assisted the appellant to his feet and helped him "to get out".

[9] Detective Senior Constable McBroom gave evidence of attending the fire at about 11:35 in the evening.  He travelled to the Cairns Base Hospital later that evening and spoke to the appellant shortly after the appellant's arrival there.  He said that he smelt what he believed to be kerosene on the appellant's clothing.  Asked if he recalled what the appellant said to him, he responded:

"I recall several aspects of what the defendant said to me.  I recall at one stage he said that he didn't – he didn't do anything … he said that he shouldn't have been at the house and that he went in and he did some things, or words to that effect …

The defendant said he owed – he owes $6,000.  Went back to Quigley House.  He knows that … he goes dancing and there's an old kero lantern.  He put the petrol around the house, spilt it around a bit

… he did appear intoxicated to me … he was rambling.  He was speaking, I would say, irrationally, to some extent from time to time

… I found that he would … speak of events of that night, but then he would retract and go onto a totally different tangent about something totally irrelevant."

[10]  In cross-examination he agreed that the appellant referred to getting petrol and the kerosene light "so he could get sneaky" and that the appellant said "he was pissed and he snuck around there." 

[11]  A police officer, who was at the scene of the fire, Senior Constable Tulacz, smelt alcohol on the appellant and noticed signs of intoxication.  She recorded in a statement that the appellant told her he had broken his ribs after jumping out of a window.  When she first saw the appellant, he was being assisted to walk and appeared to have an injury to one of his sides.

[12]  She said in her evidence-in-chief:

"…he had been in the house, his dad had gone dancing, and he described a woman's name who his father had gone dancing with, and he said that he was at the house and he wasn't supposed to be at the house, but he was doing computer work, and then he described orange balls – being surrounded by orange balls, and the he's jumped out of the window to get – to get away from the orange balls … he still had the plastic bag, which he's obviously taken out the window with him, which I believe contained two Coke bottles."

[13]  A local resident, Ms Babia, saw a person, who sounded and looked to be drunk, staggering down the street and swearing to himself.  She noticed that he entered the house at 59 Jones Street through an open garage door.  Ms Babia had the impression that the person was going to fall over.  Car drivers "were blowing horns at him and telling him to get off the road."  Five to ten minutes later, she observed smoke coming from the house. 

[14]  Another police officer, Constable Christensen, accompanied the appellant in the ambulance to the Cairns Base Hospital.  He said in evidence-in-chief of the appellant:

"He seemed to be intoxicated by something; his eyes were glazed, he couldn't keep a straight sentence at any stage.  I didn't actually see him walking at any stage, but I don't think he'd have been able to stand up on his own very well at that stage."

[15]  The following was recorded during the journey:

"SE:  Clear me.  Then I will UI with a smoke.  UI.  Basically it was just an accident.  I never seen a fire take over so fucking quick.  I tried the hose, fucking fireball, had to run and jump.  But, I didn't do anything wrong UI.  I shouldn't have been there and cause I have been barred not to go there.  When I took off around this morning there to get me gear, UI he ain't getting nothing so I UI get me a pen and paper.

WC:  No mate, I'm not getting a pen and paper out.

SE:  Had me a real sneaky night I even turned the electricity I even tried light up my kero light with a wick so I put petrol in it.  This is all the fucking old cunt has.  Toothpaste UI.

…

SE:  I am being honest.  I am being honest.  I really fucked up.  I know I shouldn't have put fuckin petrol in a fuckin kerosene light.  But I didn't have any kerosene so just tried a bit of petrol.

WC:  Mmm.

SE:  I was supposed to be asleep.  I didn't even turn the, I got to turn the light switches on.  I was trying, I shouldn't have been there, I'm on bail, I, aah, I'm warned off not to go there, UI.

…

SE:  Ah, bullshit.  I'm fucked.  I'm going to have 2 women tonight.  I'm joking.  One smoke and after that I will never ask again.  I'm going to jail aren't I?  I'm getting blamed for it I know it.

WC:  Don't know at this stage, they are just tyring (sic) to work out what's happened.

SE:  But they won't listen that, that's the thing that pisses, they won't listen.  I broke the law, I shouldn't have been there so I'm gonna get it.  How many bedrooms left, more, just the bottom ones?  How much is left?"

[16]  The appellant told another police officer in the course of an interview which commenced at 2.30 pm on 29 July 2007 that he was trying not to break the law and that by going to 57 Jones Street which adjoined 59 he was trying to be very close to home because he felt lonely.  He said that on the day of the fire he had consumed two bottles of spirits, half a carton of beer and some bourbon.  He said also that he had had a "couple of cones of marijuana."

[17]  The appellant did not give evidence.

Consideration of the application of the proviso

[18]  Counsel for the respondent accepted that, at least as a result of the way the prosecution case was presented, an intention to "cause a specific result" was an element of the offence and was an issue in the trial.  Accordingly, he accepted that the jury should have been directed that they could have regard to whatever state of intoxication "they found the appellant had for the purpose of ascertaining whether that intention in fact existed."  The concession was correctly made.  The prosecution's primary case was that the fire was started intentionally and the primary judge directed that "actual intention to set fire to the property" was an element of the offence.  The appellant was therefore entitled to rely on intoxication.[1]

[19] The arson verdict was thus affected by an error of law and must be set aside unless s 668E(1)(A) of the Criminal Code applies.  As Gleeson CJ, Gummow, Heydon and Crennan JJ said of the proviso in Darkan v The Queen:[2]

"An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.  The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [footnote omitted]."

[20]  The evidence against the appellant amounts to this.  He is obstreperous when intoxicated.  He was intoxicated and in the house, from which he had been excluded by a protection order, when the fire started and he admitted, at least implicitly, that he started it.  He admitted not getting along with his father and he had cause to be angry with him for obtaining the protection order.  Counsel for the respondent placed particular reliance on the threat to burn down the house, the appellant's admission in the interview with Constable Christensen that he put petrol in a kerosene lamp and the further admission that he "shouldn't have put petrol in a fuckin kerosene light."  The words just quoted, however, lose much of their probative value for the respondent’s case when it is apparent that they relate to the appellant's state of mind at the time of the interview and not to the time when the fire was started.

[21]  There are a number of matters on the other side of the ledger.  The appellant's threats to burn down the house were to the effect that he would take that action if not left the house or an interest in the house in his father's will.  It may thus be inferred that the appellant had an interest in preserving the house, at least until discovering after his father's death whether he had been left an interest in it.  He had property in the house, particularly computers, and presumably did not intend that they be destroyed.  The fire started in the vicinity of the room in which the computers were kept.  On the appellant's version of events the fire was the accidental result of his drunken attempt to use a kerosene lamp, into which he had poured petrol because he couldn't find kerosene.

[22]  His explanations were also consistent with his being in the state of alcohol and drug-induced befuddlement described by some witnesses.  There was no forensic evidence which contradicted the appellant's account of how the fire started and no witness reported any furtive conduct on his part, whether before or after the fire.  Nor did Ms Babia observe the appellant to be carrying any container which may have contained petrol or kerosene.

[23]  For the above reasons, I am unable to conclude that the inference that the fire was intentionally started by the appellant was the only inference rationally open on the evidence.  Another inference which is reasonably open is that the fire was caused by the befuddled appellant in the way he asserts.

[24]  In R v Lockwood, ex parte Attorney-General [1981] Qd R 209 it was held that for an act to be done wilfully by a person within the meaning of s 461 of the Criminal Code, it had to be done intentionally or recklessly, foreseeing that the act charged in the indictment was a likely consequence of the accused's act.[3]  For the reasons already given, I am unable to conclude beyond reasonable doubt that the appellant, in his inebriated and drug-affected state, foresaw the likely consequences of his conduct.

[25]  I would allow the appeal, order that the conviction on count 3 be set aside and order that there be a retrial on that count.

[26]  ATKINSON J:  I agree with the orders made by Muir JA and with his Honour’s reasons.