R v Joinbee[2013] QCA 246

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I have had the advantage of reading the judgments of Philippides and Boddice JJ, and am indebted to their Honours for their elucidation of the expression “sets fire to” in s 461 of the Criminal Code.  I agree with their conclusion that the expression extends beyond actual ignition to embrace conduct causing a building to burn.  It follows from that conclusion that there was no error in the trial judge’s direction, and the verdict on the arson count cannot be regarded as unreasonable.  I agree, too, that given his Honour’s instruction that the jury must find, in order to convict, that the appellant had dispersed the ignitable liquid causing, once the source of ignition came into play, the over-pressure event, there was no miscarriage of justice in his failing to direct further on causation.

[2] The learned trial judge was not asked to leave the excuse of accident under s 23(1)(b) of the Criminal Code to the jury.  He directed the jury that it must be satisfied the appellant spread the ignitable liquid with an actual intent to set fire to the property.  On that direction, there remained no field of operation for accident under s 23(1)(b) in respect of the arson count, and no miscarriage of justice was occasioned by his failure to direct in that regard.  I agree, however, with Philippides and Boddice JJ that on the evidence as to the appellant’s behaviour and the suddenness of the event, there was a question as to whether the grievous bodily harm suffered by Ms Lofts was foreseen and foreseeable as a possible consequence of his act.  Accident should have been left to the jury on that count.

[3] Accordingly, I agree that while the appeal against the conviction for arson should be dismissed, the conviction for grievous bodily harm should be set aside and a new trial ordered on that count.

[4] PHILIPPIDES J:  The appellant appeals against his conviction after trial on 19 September 2012 of arson and grievous bodily harm, the latter being an alternative to charges of attempted murder and malicious act with intent of which the appellant was acquitted.  The offence of arson concerned the destruction by fire of the appellant’s residence, which he shared with his de facto, Ms Lofts, and two sons.  The offence of grievous bodily harm concerned burns sustained by the appellant’s de facto in the fire.

[5] The complaint made by the appellant in respect of the offence of arson (count 4) was that:

(a)     the verdict of the jury was unreasonable and unsupported by the evidence;

(b)     the learned trial judge erred in directing the jury as to the element of “set fire to” of the offence;

(c)     there was error in failing to direct the jury as to causation; and

(d)     there was error in not leaving accident under s 23 Criminal Code.

[6] The last ground of appeal was raised also in respect of the conviction on the offence of grievous bodily harm.

[7] I adopt the summary of the evidence and arguments of the parties set out by Boddice J in his reasons for judgment and make only such additional references as is required to explain my reasons.

Trial judge’s directions

[8] Section 461(1)(a) of the Criminal Code relevantly provides in respect of the offence of arson that any person who wilfully and unlawfully sets fire to a building or structure is guilty of a crime.  The trial judge directed the jury that to prove the offence of arson, the prosecution was required to prove three elements, firstly that the appellant “set fire to” the property, secondly, that the appellant did so “wilfully” and thirdly, that the appellant did so “unlawfully”.

[9] As to the first two elements of the offence of arson, the directions of the trial judge were as follows:

“… The first is that the Crown must prove beyond reasonable doubt that the defendant set fire to the property.  The Crown’s case on this, as you have now heard many times, is circumstantial, and depends on you being persuaded beyond reasonable doubt that the defendant dispersed ignitable liquid in the house.

Whilst the Crown also argues that the evidence is sufficient for you to infer that the defendant lit or ignited the fluid, the necessary underlying proposition is that the defendant, by spreading the ignitable liquid in the house, created what the prosecutor described as the breeding ground for what occurred because this spreading of the ignitable liquid gave rise to the necessary fuel and air mixture which, when lit up, whether by a spark or other ignition source, was instantly converted into what the experts agreed was the overpressure event.

…in terms of understanding this element of the charge of arson, you need to understand that, on the way in which the Crown case has been presented to you, if you are not satisfied beyond reasonable doubt that the defendant dispersed the ignitable liquid in the house, then you cannot be satisfied beyond reasonable doubt that he set fire to the house and you must acquit him of arson.

If you are satisfied that the defendant set fire to the house, then you must consider whether he did so wilfully.  This is the second element, and again it is for the Crown to prove this beyond reasonable doubt.

…

Wilfully means that 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 the property’s catching fire was a likely consequence of his act and that he did the act regardless of the risk.

In this case, the prosecution argues that if you find that the defendant dispersed the ignitable fluid in the house, this act of dispersing the ignitable fluid evidenced his actual intention to set fire to the property and that you should be satisfied of this beyond reasonable doubt.

The Crown’s case, the Crown’s argument to you, is that the spreading of the ignitable fluid evidenced an actual intention to set fire to the property.  In other words, the Crown argues that you should find it proved beyond reasonable doubt that the defendant dispersed the ignitable fluid, and that if you reach that conclusion then you will find the first two elements of the offence of arson satisfied.

It follows, of course, ladies and gentlemen, that if you have not been satisfied beyond reasonable doubt that the defendant dispersed the ignitable fluid, then neither of the first two elements of the offence of arson are satisfied and it’s your duty to acquit the defendant of that charge.”

Unreasonable verdict and misdirection in respect of “sets fire to”

[10] In relation to the contention that the jury’s guilty verdict on the arson offence was unreasonable, it was not argued that findings that the appellant had spread ignitable fuel or that he did so with the intention to set fire to the house were not open on the evidence.  Rather, the argument was that, in the context of a wholly circumstantial case, and given the expert evidence that sparking from an electrical appliance could have been the ignition source for the air and fuel mixture present in the house, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant ignited the fire.

[11] That contention directs attention to the appellant’s further complaint that the trial judge erred in directing the jury that, in relation to the element that the defendant “set fire to” the house, it was sufficient that the jury was satisfied that the appellant created the breeding ground for a fire by dispersing ignitable liquid in the house.  Both grounds of appeal are premised on the same underlying contention that the words “sets fire to” in s 461 of the Criminal Code are synonymous with “ignite” and require proof of an act of ignition by the defendant.

[12] There is little pertinent authority as to the meaning of the expression “sets fire to”.  In R v Hayes [2008] QCA 371 at [57], Keane JA (with whom McMurdo P and McMeekin J agreed) rejected the argument advanced on behalf of the appellant in that case, that a person cannot be guilty of arson under s 461 of the Criminal Code unless he or she applies fire directly to the building so as to set it alight, as an “artificially narrow view of what is involved in setting fire to a building.”  However, in arguing that the phrase “sets fire to” nevertheless means ignite, the appellant sought to derive some support from Keane JA’s observation in Hayes at [59] where his Honour described as “an accurate statement of the law” the trial judge’s direction that to convict of arson the jury “had to be satisfied beyond reasonable doubt that the appellant ‘used some means of igniting the house and it caught fire as a consequence of what he did’”.

[13] Clearly, the expression “sets fire to” is not confined to the direct application of fire.  The ordinary meaning of the expression “sets fire to” is of broader connotation.  “Set fire to (or set something on fire)” is defined in the Oxford Dictionaries (online) as meaning “cause to burn; ignite”.  “Ignite” is there defined as “catch fire or cause to catch fire”.  And although the Macquarie Dictionary meaning of “ignite” is “to set on fire; kindle”, it also states in respect of the word “set”:

“2.to put into some condition or relation: to set a house on fire.

3.to apply: to set fire to a house.”

[14] I agree with Boddice J’s observation at [76] that “sets fire to” in s 461(1)(a) of the Criminal Code refers to conduct which causes a building to be set on fire.  In my view, this follows from the fact that the offence of arson is by its nature a result driven one[1] – that is, it has long been accepted that, in terms of the relevant actus reus, for conduct to amount to a “setting on fire” there must be more than a setting alight and that an actual burning of some part of the building or property in question is required (albeit that the slightest degree of burning is sufficient).[2]  The conduct must thus cause the property to burn.  It is also implicit from the fact that, in the context of the offence of arson, the term “wilfully” extends to include the situation where a defendant deliberately does an act, aware at the time it is done, that the property’s catching fire is a likely consequence of that act, and that the defendant does the act regardless of the risk.[3]

[15] Accordingly, the ground of appeal that there was a misdirection as to the element of “sets fire to” must fail.  It also follows that the complaint that the jury verdict was unreasonable is without substance.

Direction as to causation

[16] As indicated, a causative connection between the particular act in question and the requisite outcome is inherent in the expression “sets fire to”.  It is an integral part of the element that a defendant “sets fire to” property, that the defendant engages in conduct which causes a setting on fire of the property (that is, it causes some actual burning) and the offence is not complete unless and until that occurs.  It follows that in directing the jury in the present case that they were required to be satisfied of the element that the defendant “set fire to” the building, it was necessary to direct the jury that they were required to be satisfied that the alleged conduct of spreading accelerant through the house was conduct which caused the building to be set on fire.

[17] Complaint was made that the trial judge did not direct the jury that they were required to be satisfied that the dispersal of fluid was a substantial or significant cause of the fire in accordance with Royall v The Queen (1991) 172 CLR 378 at 411, 423.  However, when regard is had to the directions given to the jury, it is apparent that the trial judge did explain the necessary causative link between the alleged dispersal of ignitable fluid and the fire in terms of the Crown case and there was no further direction sought by the appellant’s counsel on the issue.  His Honour explained that the jury needed to be satisfied beyond reasonable doubt that the defendant set fire to the property and that the Crown case was a circumstantial one which depended on their being persuaded that the defendant dispersed ignitable liquid in the house.  And the learned judge specifically directed that, in terms of the Crown case, “the necessary underlying proposition” was that the appellant:

“… by spreading the ignitable liquid in the house, created what the prosecutor described as the breeding ground for what occurred because this spreading of the ignitable liquid gave rise to the necessary fuel and air mixture which, when lit up, whether by a spark or other ignition source, was instantly converted into what the experts agreed was the overpressure event.”

[18] In the circumstances, the manner in which the issue of causation was explained was sufficient in terms of the Crown case as presented at trial and there was no error here in not additionally directing the jury they were required to be satisfied that the dispersal of fluid was a substantial or significant cause of the fire.  Nor could it be said that the trial judge’s failure to do so has resulted in a miscarriage of justice.

[19] The defence case was that an “accidental” source for both the ignition and the fuel air mixture could not be excluded.  That is, it could not be excluded that the ignition source was a spark from an electrical appliance rather than an act emanating from the appellant, nor could it be excluded that the source for the fuel air mixture was, for example, leakage from a defective can, rather than any conduct attributable to the appellant.  The prosecution case was that, even if the ignition source was an electrical spark (as opposed to an act of the appellant), it nonetheless remained that the fuel air mixture present occurred as a result of the appellant’s conduct in spreading accelerant through the house and creating the requisite combustible atmosphere or breeding ground which, upon ignition, resulted in the overpressure event.

[20] There was no dispute amongst the experts that, on its own, the sparking from an electrical appliance was a benign event.  The evidence of the defence expert Dr Stern as to the occurrence of sparking was that: “… there are sparks occurring in electrical – from electrical sources in most houses most days.  It could be the spark from a fridge that Sergeant Rowan mentioned; it could be a spark from an appliance; it could be a spark from a switch or at a power point – any of those – or from the lighting.”[4]

[21] Nor was there any dispute that the presence of the fuel air mixture was a necessary prerequisite for the overpressure event.[5]  The evidence of Dr Stern in that regard was as follows:[6]

“Now, with an electrical issue, if there is no such atmosphere then you wouldn’t expect this type of damage; correct?--  We need to have both the ignition source and the vapour present together.

Yes.  All right.  But, but for the vapour, the ignition source would do nothing?--  Yes.”

[22] The real question in relation to causation therefore, given the possibility of electrical sparking acting as the source of ignition, was as to how the volatile vapour came to be present in the house – whether it was because of the appellant’s conduct in dispersing accelerant through the house or because of some other event not attributable to the appellant’s conduct.  The jury were directed they could only convict the appellant of arson if they were satisfied he dispersed the ignitable fluid within the house.  And once the jury accepted beyond reasonable doubt (as they must be taken to have) that the appellant had spread the accelerant, the inevitable conclusion, even on the evidence of the defendant’s expert, was that that act was a significant or substantial cause of the overpressure event.  In those circumstances, it cannot be said that the appellant was deprived of the opportunity of an acquittal, such that there was a miscarriage of justice, because of the failure to direct specifically that the prosecution was required to prove beyond reasonable doubt that the dispersal of fuel caused the fire in the sense that it was a significant or substantial cause of it.

Failure to direct on section 23

[23] The learned trial judge was not asked to and did not direct the jury in terms of “accident” set out in s 23(1)(b) of the Criminal Code.  The basis of the appellant’s submission that the defence of accident under s 23(1)(b) should have been left to the jury in respect of both arson and grievous bodily harm was that one rational hypothesis consistent with the evidence was the following scenario.  The appellant, having attempted to wake Ms Lofts, after taking the children outside, was returning inside to try and get her, as he told the children that he was, and he locked the door to prevent the children’s entry.  Whilst the appellant was inside, a spark was caused by an electrical item within the house, resulting in the ignition of the fuel air mixture, the overpressure event and burning of the house, Ms Lofts and himself.  There was said to be some evidence supporting that hypothesis; the children said that the appellant had tried to wake Ms Lofts before taking them outside, they also said that he had said that he was going back in to get her when he left them outside, and there was also said to be limited time for the fuel air mixture to have been created between the time he returned inside and the fire started.

[24] The appellant also contended that in not convicting the appellant of intending to cause serious harm or death to Ms Lofts, it followed that the jury must have taken the view that he did not ignite the fire, for if he had, after spreading petrol around and knowing that Ms Lofts was asleep in the house, one would expect he would have been convicted of at least intending to seriously harm her.  That submission overlooks that the verdicts of the jury did not admit only of the conclusion that they were not satisfied the appellant directly lit the fire – they may have represented no more than the inability to be persuaded, beyond reasonable doubt, that the appellant intended to kill his de facto or to cause her grievous bodily harm.  Even so, it remained that the expert evidence posited as a reasonable hypothesis that the source of the ignition was an electrical sparking rather than an act of the appellant.

[25] The question then, the appellant argued, should have been whether, if the jury were not satisfied that the appellant ignited the fire, an electrical item sparking and the resultant fire or grievous bodily harm was an accident.  To be satisfied of the appellant’s guilt in relation to the arson and the grievous bodily harm, the jury, it was submitted, needed to be satisfied that the event (whether the fire or grievous bodily harm) was not an event which was unintended and unforeseen by the appellant, and that it would not have been reasonably foreseen by an ordinary person in the appellant’s position: Kaporonovski v The Queen (1973) 133 CLR 209; Stevens v The Queen (2005) 227 CLR 319.  It was thus an error not to so direct the jury, despite the fact that that direction was not specifically sought: Pemble v The Queen (1971) 124 CLR 107.

[26] There was no dispute that in terms of s 23(1)(b), the “act” was the appellant dispersing ignitable fluid in the house and the “event” was the fire that burnt the house and injured the appellant and Ms Loft.  The respondent argued that, given the direction that the jury could only convict the appellant if satisfied he deliberately dispersed the ignitable fluid and, given that the Crown case as to the element of “wilfulness” was explicitly put on the basis that the defendant intended to create a fire, the jury must have been satisfied that the defendant did a willed act intending to create the event of the fire, in which case, there was no scope for the operation of s 23(1)(b).

[27] It may be accepted that it remains the case that a direction as to accident may be necessary, notwithstanding that proof of the alleged offence requires proof of a specific intent: see Murray v The Queen (2002) 211 CLR 193 and Stevens v The Queen (2005) 227 CLR 319.  However, the directions to the jury in respect of the offence of arson required them to be satisfied that the appellant deliberately spread ignitable fluid and that that act evidenced an actual intention to set fire to the house, and in those circumstances, accident did not arise for consideration simply because a possible source of ignition was an electrical sparking.  That did not render the event of the fire an accident and I do not consider that there was any error in failing to direct on accident.

[28] However, in respect of the offence of grievous bodily harm, where, as was the case here, the jury were not satisfied that the appellant spread the ignitable fluid intending to do serious injury to Ms Lofts, the question whether that event was one which was foreseen and foreseeable was one that ought to have been left to the jury, given the matters raised as a possible scenario by the appellant.

[29] The appeal against conviction for arson should be dismissed.  As to the conviction for grievous bodily harm, I agree that that conviction should be set aside and a new trial ordered.

[30] BODDICE J:  On 19 September 2012 a jury found the appellant guilty of offences of arson and grievous bodily harm.  He was found not guilty of offences of attempted murder and malicious act with intent.

[31] On 20 September 2012 the appellant was sentenced to imprisonment for seven years on the offence of arson, and three years on the offence of grievous bodily harm.  Both sentences were to be served concurrently.  His parole eligibility date was fixed after serving two years and four months of those sentences.

[32] The appellant appeals against his convictions.  The grounds of appeal are:

1.That the verdict of the jury in relation to count 4 (arson) is unreasonable or can not be supported on the evidence.

2.His Honour erred in directing the jury that to prove the offence of arson, in relation to the element “set fire to”, it was sufficient if the jury were satisfied that the Appellant created the breeding ground for a fire by dispersing ignitable liquid in the house.

3.His Honour erred in not leaving Accident under section 23(1) of the Criminal Code Act 1899 (Qld) as a defence.

[33] The appellant was given leave, during the hearing, to add as a further ground, that the trial judge erred “in failing to direct the jury on causation”.

Background

[34] The offences arose out of events which occurred late on the evening of 16 January 2010 when the appellant’s residence was destroyed by fire.  The appellant’s partner was inside the residence at the time of the fire.  She suffered serious burns.  Those burns satisfied the definition of grievous bodily harm.

[35] It was not in dispute at trial that the residence was engulfed by fire and that the appellant’s partner sustained serious injuries as a consequence of the fire.  What was in dispute was whether the appellant wilfully and unlawfully set fire to that residence, and whether he did so intending to kill his partner.

[36] The prosecution case was circumstantial.  The destruction of the residence by fire was so great that it was not possible to establish where the fire had commenced, and over what areas any accelerant had been distributed prior to the fire.  It was also not possible to establish the actual accelerant.

[37] The prosecution contended the appellant deliberately set fire to the residence with the intention of killing his partner.  The prosecution case was that the appellant deliberately distributed an accelerant over a wide area within the house at a time when he knew his partner was still in the residence.

[38] Evidence was led of traces of an accelerant being found in an area of carpet from the doorway of the hall into the lounge area (where the appellant’s partner was sleeping), and of traces of accelerant being found on the appellant’s boots and socks.  The traces were consistent with petrol, although other accelerants could not be excluded as the source.  Evidence was also led of a petrol can being found in the kitchen area of the house.

[39] The defence contended the jury could not be satisfied beyond reasonable doubt that the appellant had deliberately distributed an accelerant, and had ignited that accelerant.  It was contended the jury could not exclude the possibility of accidental distribution of an accelerant, and of accidental ignition of a mixture of air and vapours from that accelerant by arcing from an electrical appliance.

Evidence

[40] The prosecution’s circumstantial case chiefly relied on evidence given by the appellant’s young children, and upon scientific and expert evidence.

[41] The appellant’s children, who were aged eight and six at the time of the fire, gave evidence that they were woken by the appellant in the middle of the night.  The older child said the appellant told him they were going outside “for a camp”.[7]  This was the first time this had ever happened.  The younger child gave evidence the appellant told him to wake up as the house was about to catch on fire as he had “dropped [some] petrol on the cement”.[8]

[42] Both children gave evidence they were taken outside by the appellant to an area in the yard where the appellant had set up a “camp” with cushions, and a blanket taken from the residence.  The appellant took them outside slowly, walking, not running.  He told them to stay there while he returned to the house.  The appellant locked the back door behind him as he re-entered the house.

[43] The older child gave evidence that after the appellant re-entered the house he could see the appellant in the kitchen and heard water running in the sink.  He then heard the fire alarm and saw fire move very quickly from the lounge to the kitchen.  He had not seen any fire or smelt any smoke until that point.  He then heard his mother and the appellant yelling for help.  The appellant told him to get help from relations who lived down the street.  The younger child gave evidence that after the appellant re-entered the house he saw the kitchen on fire and there was a big explosion.

[44] The prosecution called scientific evidence to establish that traces of an accelerant, consistent with petrol, were found in the carpet in the doorway from the hallway into the lounge.  There was also found, on one of the appellant’s boots, residue consistent with petrol.  Residue was also found on another boot and sock consistent with the presence of an accelerant.  This accelerant was not identified and could have come from various sources, including cleaning products, insecticides, paint thinners or petrol products.  It was accepted the boots and sock had been stored together after the fire, and there may have been cross contamination.

[45] Expert evidence was also given by Sergeant Rowan as to the cause and circumstances of the fire.  That evidence was the subject of competing expert evidence from Dr Stern, the only witness called in the appellant’s case.

[46] Both experts agreed an accelerant was present within the residence immediately prior to the fire, and the likely cause of the fire was an overpressure event.  That event occurs as a consequence of vapour from the accelerant mixing with air and that mixture coming into contact with an ignition source.

[47] However, they disagreed as to whether the fire in the appellant’s residence was as a consequence of the accelerant being deliberately dispersed widely through the residence, or as a consequence of the accelerant being found in only one area, and it catching fire due to arcing from an electrical appliance.

[48] Sergeant Rowan gave evidence the extent of damage meant he was unable to determine the origin of the fire.  He was able to establish the fire occurred after an explosion, and was “a very, very rapid fire”.[9]  The likely cause of the explosion was a fuel air vapour explosion,[10] although he was unable to ascertain the particular fuel.

[49] Sergeant Rowan said the explosion was likely caused by the application of an accelerant throughout the residence, creating the largest surface area possible.  A distribution of the accelerant in one area alone would not have caused the damage he observed to the residence.  The most likely scenario was that the accelerant was spread throughout the majority of the rooms, particularly the lounge room, hallway and kitchen and possibly the other bedrooms.

[50] Sergeant Rowan was unable to identify the exact location of the ignition of the explosion, or the ignition source.  He accepted that apart from the direct application of a flame, the ignition source could have been a “parting arc” from an electrical appliance such as a refrigerator motor.  However, a parting arc would have no effect unless there had first been created an air fuel explosive mixture.  Sergeant Rowan accepted the point of ignition may not necessarily be the same place where the accelerant was located, as the issue is whether the air fuel mix is in the right ratios.

[51] Sergeant Rowan also accepted that a possible explanation for the presence of the air fuel vapour was that ignitable liquid in a container had escaped into the air, although he considered such a scenario would take “a long period of time”.[11]  As there was no evidence as to how long the accelerant may have been escaping into the air inside the house, it was possible the accelerant was only present within one location in the residence.

[52] Sergeant Rowan examined a fuel tin found in the kitchen area.  That examination revealed the tin had suffered a mechanical failure as a consequence of the fire causing its contents to expand, forcing open the lid and sides of the container.  Two intact fuel cans were also located in the laundry.  That area had not been affected by the fire.

[53] Sergeant Rowan considered it unlikely the fuel tin located in the kitchen would have been the source of the air fuel vapour.  An open fuel container would only discharge vapour very slowly.  A leak from the can was also very unlikely.  If that container had been the source, he would expect preferential burning would have been present in that area of the residence, although the ferocity of the fire meant evidence of preferential burning was not detectable.

[54] Dr Stern gave evidence that whilst the most likely cause of the fire was an overpressure event, caused by the mixture of an accelerant with air in the residence, it was not necessary for the accelerant to be located in more than one area.  An overpressure event could occur in one area provided there was the right proportion of vapour to air, and an ignition source.  He accepted such a scenario would result in preferential burning but said no evidence of preferential burning could be determined due to the intense destruction caused by the fire.

[55] Dr Stern disagreed with Sergeant Rowan’s evidence that the fuel tin found within the residence could not have been a source of the overpressure event.  He accepted that if there was no fault in the container, it would be unlikely to be the cause.  However, if the fuel tin did contain a crack, vapour could escape and could cause an overpressure event.

[56] Dr Stern agreed that if the fuel tin had been damaged it is likely to have caused the fuel air mixture at a much slower speed than if a liquid accelerant had been deposited throughout the house.  The ignition source would need to be in the same area as the vapour but would not have to be in the same room as the accelerant which had given up the vapour.  The ignition source could be an electrical arc, or a naked flame.

[57] Dr Stern accepted the fuel air mixture necessary to have caused the destruction within the residence was consistent with the depositing of an accelerant in the residence.  He also accepted the ignition source would do nothing unless there was an air fuel mixture present in the residence.

Trial Judge’s directions

[58] Relevantly, the jury was directed in the following terms in respect of the offence of arson:

“The prosecution must prove each of these beyond a reasonable doubt:

1.the defendant set fire to the property;

2.the defendant did so wilfully; and

3.the defendant did so unlawfully.

Let’s take a few minutes to look at each of those elements.  The first is that the Crown must prove beyond reasonable doubt that the defendant set fire to the property.  The Crown’s case on this, as you have now heard many times, is circumstantial, and depends on you being persuaded beyond reasonable doubt that the defendant disbursed ignitable liquid in the house.

Whilst the Crown also argues that the evidence is sufficient for you to infer that the defendant lit or ignited the fluid, the necessary underlying proposition is that the defendant, by spreading the ignitable liquid in the house, created what the prosecutor described as the breeding ground for what occurred because this spreading of the ignitable liquid gave rise to the necessary fuel and air mixture which, when lit up, whether by a spark or other ignition source, was instantly converted into what the experts agreed was the overpressure event.

I’ll speak later about the competing arguments on this, but in terms of understanding this element of the charge of arson, you need to understand that, on the way in which the Crown case has been presented to you, if you are not satisfied beyond reasonable doubt that the defendant disbursed the ignitable liquid in the house, then you cannot be satisfied beyond reasonable doubt that he set fire to the house and you must acquit him of arson.”

[59] Later, the trial judge directed:

“The Crown’s case, the Crown’s argument to you, is that the spreading of the ignitable fluid evidenced an actual intention to set fire to the property.  In other words, the Crown argues that you should find it proved beyond reasonable doubt that the defendant dispersed the ignitable fluid, and that if you reach that conclusion then you will find the first two elements of the offence of arson satisfied.”

[60] There were no specific directions given as to causation, or accident.

Appellant’s submissions

[61] The appellant submitted the guilty verdicts of the jury were unreasonable.  The jury had no evidence the appellant had ignited the fire, and the evidence at trial left open, as a rational hypothesis, that the house was ignited by arcing from an electrical appliance.  Such an ignition was insufficient to establish an essential element of the charge of arson, namely, that the appellant “sets fire to” the residence.

[62] The appellant submitted “sets fire to” meant “ignite” and the direction of the trial judge, that it was sufficient to establish that element of the offence if the appellant created “the breeding ground” for the explosive event by disbursing ignitable liquid in the house, was an error of law, and led to a miscarriage of justice.

[63] The appellant further submitted that even if creating the breeding ground was sufficient at law, the evidence at trial did not exclude, as a rational hypothesis consistent with innocence, that the overpressure event was accidental, being caused by a spark from a piece of electrical equipment.  In those circumstances, the trial judge erred in not leaving the defence of accident, under s 23(1)(b) of the Code, to the jury.

[64] Finally, the appellant submitted that even if accident ought not have been left to the jury, the jury should have been specifically directed that the prosecution needed to establish, beyond reasonable doubt, that the appellant’s actions “caused” the burning of the residence.  The failure of the trial judge to provide any direction as to causation was an error, and led to a miscarriage of justice.

Respondent’s submissions

[65] The respondent submitted the appellant’s contention that the verdicts were unreasonable and not supported by the evidence can only succeed if the appellant is correct that it was necessary for the jury to be satisfied the appellant physically ignited the accelerant mixture within the house.  The respondent submitted “sets fire to” is not to be interpreted so narrowly.  It simply means to “cause” the fire to occur within the residence.  Accordingly, proof the appellant deliberately dispersed the accelerant through the residence, intending to set fire to the residence, was sufficient to establish that element of the offence.

[66] The respondent submitted there was no need for the trial judge to separately direct the jury on causation.  The jury were directed they could only convict the appellant if they were satisfied he had deliberately dispersed the accelerant within the residence.  Such a direction meant there was no scope for a conclusion by the jury that the actions of the defendant were not “a substantial or significant cause” of the burning of the residence.

[67] The respondent further submitted the trial judge was not asked to direct the jury in terms of accident, and there was no requirement for such a direction in the circumstances.  In order to have convicted the appellant, the jury must have been satisfied the appellant did a willed act, namely, deliberately dispersing the accelerant through the residence, intending to burn the residence.  In those circumstances, there was no scope for the operation of s 23(1)(b) of the Code.

Discussion

Unreasonable verdicts

[68] The appellant’s contention that the verdicts of the jury were unreasonable, and not supported by the evidence depends, to a large extent, upon the correctness of his further contention that “sets fire to” in s 461(1) of the Code means “ignites”.  Similarly, the appellant’s contention that the trial judge erred, in directing the jury that it was sufficient to establish the element of the offence if the jury was satisfied the appellant created the breeding ground for a fire by dispersing the accelerant in the residence, depends on the words “sets fire to” meaning “ignites”.

[69] The expression “sets fire to” was used by Sir Samuel Griffith in his draft Code.  That expression had been used in the earlier English statutory provisions for the offence of arson referred to in the draft Code.  Common Law required a “burning”, however, the difference between “setting fire to” and “burning” was said to be a distinction without a difference since “set fire to” meant not merely placing fire against but actually “set on fire”.[12]

[70] Early consideration of the meaning of the words “sets fire to” focused on a requirement of some part of the building actually being burnt.  For example, Saunders and Cox, in their work “The Criminal Law Consolidation Acts, 1861”,[13] contained the following definition of “set fire to”:

“There must be an actual burning of some part of the building, although the fire needs not to be of any continuance.  Where the prisoner had fired a faggot, which had scorched the floor, but not burnt it, the case was held not to be within the statute:  (R v Russell, Car. & M. 541.) But where the floor had been in a red heat but had not blazed, Parke. B., held the offence to be complete:  (R v Parker, 9.C.& P. 45)

If there be doubt as to the fact of the building having been actually set on fire, under sect. 8 the prisoner may be indicted for attempting to set fire, & c.” (their emphasis)

[71] Other considerations of the expression “sets fire to” occurred in the context of recklessness.  For example, in his Outlines of Criminal Law,[14] Professor Kenny wrote:

“… For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from the evidence that he neither intended nor foresaw the possibility of the house’s catching fire.  For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognized the probability of its taking fire and have been reckless as to whether or not it did so.  The cases emphasize that this test of liability is subjective.” (citations omitted)

[72] Sir Samuel Griffith did not discuss the meaning of “sets fire to” in his draft Code.  There is also no reference to that provision in the second reading speech, or the Committee Hansard.  However, some assistance as to its meaning can be derived from a consideration of recent authority in this State, and in Tasmania, which has an equivalent provision.

[73] In R v Hayes[15] Keane JA (as his Honour then was) (with whose reasons McMurdo P and McMeekin J agreed) observed:

“[57]The appellant’s contention upon this ground of appeal is that the learned trial judge’s directions to the jury were apt to suggest to the jury that the appellant could be found guilty of arson if the jury accepted that the appellant set a fire at some distance away from the house and the house caught fire as a result.  The appellant’s argument on this point seemed to involve the proposition that, as a matter of law, a person cannot be guilty of arson under s 461 of the Criminal Code unless he or she applies ‘fire’ directly to the building in question so as to set it alight.  There is, not surprisingly, no support in authority for such an artificially narrow view of what is involved in setting fire to a building.  Whether or not a person has set fire to a structure is a question of fact, and the jury were correctly instructed to that effect.

…

[59]The appellant’s criticism of his Honour’s direction to the jury on this point fails to recognise that his Honour expressly directed the jury that, to convict of arson, they had to be satisfied beyond reasonable doubt that the appellant ‘used some means of igniting the house and it caught fire as a consequence of what he did’.  This direction was an accurate statement of the law.  The jury would have understood from his Honour’s direction that they could not convict the appellant of arson unless they were satisfied to the requisite degree that the appellant intentionally set fire to the building.”

[74] Whilst Hayes did not specifically deal with what would be a sufficient means of “igniting” the house, the observation that a requirement that a person cannot be guilty of arson unless he or she applies “fire” directly to the building so as to set it alight constitutes an artificially narrow view of what is setting fire to a building is apposite to the present case.

[75] That the expression “sets fire to” ought not to be given an artificially narrow interpretation is supported by observations made by Neasey J in Gardenal-Williams v The Queen.[16]  In considering the meaning of the word “wilfully”, Neasey J said, in respect of arson being a crime causing injury to property which consists of a physical act or conduct and its consequences:[17]

“In arson, the ‘act’ is, for example, holding a lighted match so that the flame comes in contact with combustible material, or throwing a lighted brand into such material, or any other such act which can have the effect of setting fire to something.  The consequence, of course, is that something is set on fire;

…

In the case of arson the accompanying state of mind, plainly, must be orientated in some way to the proscribed consequence of the act; namely the setting on fire.  If the actor, holding a lighted match to a bundle of dry grass set beside a wooden house, long enough to set the grass alight, desired the consequence that the house be set on fire, or foresaw that consequence as a certainty, clearly his act would have been done with required blameworthy or culpable intention, that is ‘wilfully’, in relation to that result.”

[76] In context, “sets fire to” in s 461 of the Code refers to conduct which causes the building being set on fire.  It is not limited to conduct involving physically igniting the building.  This conclusion is supported by the further requirement that the offender “wilfully” set fire to the building.  That requirement places the conduct in context:  it must be conduct with the requisite state of mind.

[77] The case presented to the jury was that the appellant “set fire to” the residence by deliberately distributing the accelerant through the residence, with the intention of setting fire to it.  In his summing up, the trial judge expressly directed the jury that the necessary underlining proposition to the Crown case was that “the defendant, by spreading the ignitable liquid in the house, created what the prosecutor described as the breeding ground for what occurred because this spreading of the ignitable liquid gave rise to the necessary fuel and air mixture which, when lit up, whether by a spark or other ignition source, was instantly converted into what the experts agreed was the overpressure event”.

[78] Whilst the trial judge gave no specific direction to the jury that they were required to be satisfied that the dispersal of accelerant by the appellant was a substantial and significant cause of the residence being set fire to, there was no requirement for the trial judge to do so in the present case having regard to the trial judge’s explicit direction that if the jury were “not satisfied beyond reasonable doubt that the defendant dispersed the ignitable liquid in the house, then you cannot be satisfied beyond reasonable doubt that he set fire to the house and you must acquit him of arson”.

[79] Once that conclusion is reached, it cannot be said the jury’s verdicts were unreasonable, and against the weight of the evidence.  The evidence of the children as to the circumstances in which they were taken from the residence, their description of observing the fire develop thereafter, and the expert evidence of Sergeant Rowan as to the likely cause of the fire, if accepted by the jury, amply supported the jury’s conclusion that they were satisfied beyond reasonable doubt that the appellant had deliberately dispersed an accelerant throughout the residence, with the intention of setting fire to the residence.

Causation

[80] At trial, the appellant’s counsel expressly raised the question of an accidental ignition of the building, not in the context of accident within the meaning of s 23 of the Code, but in the context of the fire being caused by an arc from an electrical appliance igniting vapour dispersed from a leaking fuel can.

[81] Notwithstanding that issue being raised, the trial judge did not specifically direct the jury that in order to convict the defendant of the offence of arson the jury needed to be satisfied beyond reasonable doubt that the appellant’s actions were a “substantial or significant cause”[18] of the building being set on fire.

[82] Whilst causation is a question of fact, and therefore one for the jury, the absence of a specific direction to that effect must be viewed against the directions given by the trial judge in respect of the offence of arson.  Relevantly, the jury were specifically directed that if the jury was not satisfied beyond reasonable doubt “that the defendant dispersed the ignitable liquid in the house”, the jury could not be satisfied beyond reasonable doubt that the defendant set fire to the house and must acquit the appellant of arson.

[83] Although Dr Stern opined that the fuel tin found within the kitchen area of the residence could have been a possible source of the vapour necessary for the overpressure event, if the fuel tin had contained a crack, the specific direction to the jury that they could only convict the defendant if satisfied beyond reasonable doubt that the overpressure event was caused by the appellant deliberately dispersing the accelerant through the residence meant the alternative source of the vapour, raised by the appellant, had to be excluded by the jury by their satisfaction beyond reasonable doubt of the appellant’s guilt of the offence of arson.  Accordingly, there was no necessity for the trial judge to give a separate direction on causation in the present case.

[84] In any event, a failure to give a separate direction as to causation could not result in any miscarriage of justice.  The specific directions given by the trial judge meant there was no real prospect the defendant was deprived of the opportunity of an acquittal on the offence of arson.  Once the jury was satisfied beyond reasonable doubt that the appellant had dispersed the accelerant through the residence, it was an inevitable conclusion that that act was a substantial or significant cause of the residence being “set fire to”.

Accident

[85] At trial, the Crown specifically disclaimed any reliance upon recklessness as a basis for establishing the necessary element of wilfulness in the offence of arson.  The Crown relied upon intention to satisfy the element of wilfulness.

[86] Whilst reliance upon a specific intention does not mean there cannot be scope for a direction in respect of accident in an appropriate case,[19] there was no necessity for such a direction to be given in relation to the offence of arson.  The specific direction that the jury must acquit the appellant unless satisfied beyond reasonable doubt that he deliberately spread the accelerant through the residence meant there was no practical operation for a defence of accident in respect of the offence of arson.

[87] However, the offence of grievous bodily harm is in a different category.  The appellant’s conviction of that offence arose in circumstances where the jury had returned verdicts of not guilty of offences of attempted murder and malicious act with intent to do grievous bodily harm.  The consequence of the jury’s verdicts in respect of those offences is that the jury were not satisfied beyond reasonable doubt that the appellant intended to kill his wife, or do her grievous bodily harm.  Once that verdict was reached, an issue for the jury to consider was whether the infliction of grievous bodily harm was an event which occurred by accident.

[88] Whilst the jury was satisfied beyond reasonable doubt that the appellant deliberately spread the accelerant through the residence, and thereby wilfully “set fire to” the building, it does not follow the jury, properly directed in respect of a defence of accident in relation to the offence of grievous bodily harm, had to be satisfied beyond reasonable doubt that the infliction of grievous bodily harm was intended, foreseen or reasonably foreseeable.

[89] The evidence that the appellant returned to the house after taking his children into the backyard, and that arcing of an electrical appliance could have ignited the vapour/air mixture may have caused a jury to conclude the explosive event occurred at a time not intended by the appellant, and to have a reasonable doubt as to whether the infliction of grievous bodily harm to the appellant’s wife was an event which occurred by accident.

[90] Whilst a jury, having regard to the evidence, may have been persuaded of the appellant’s guilt of the offence of grievous bodily harm beyond reasonable doubt if a direction in respect of accident had been given, it cannot be said the appellant was not deprived of the opportunity of an acquittal on the offence of grievous bodily harm by the failure to give the direction in respect of that offence.  In those circumstances, a miscarriage of justice has arisen.[20]  His conviction of the offence of grievous bodily harm ought to be set aside, and a new trial ordered.

Conclusions

[91] The appellant has established that the trial judge erred in failing to give a specific direction in respect of accident in relation to the offence of grievous bodily harm and that, as a consequence, there has been a miscarriage of justice.

[92] I would allow the appeal to the extent of setting aside the conviction on the offence of grievous bodily harm, and ordering a new trial in respect of that offence.