R v McIntyre [2000] NSWCCA 6

Reported Decision : 111 A Crim R 211

New South Wales Court of Criminal Appeal

CITATION : R v McIntyre [2000] NSWCCA 6 FILE NUMBER(S) : CCA 60546/98 HEARING DATE(S) : 21/10/99 JUDGMENT DATE : 24 February 2000

PARTIES : Regina Stuart James McINTYRE JUDGMENT OF : Sully J at 1; Hulme J at 2; Hidden J at 50

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Naughton DCJ OFFICER :

COUNSEL : Crown: P G Berman Appellant: G P Craddock SOLICITORS : Crown: S E O'Connor Appellant: T A Murphy

DECISION : Appeal allowed; Convictions and sentences consequent thereon quashed; A new trial of the Appellant

- 26 - IN THE COURT OF CRIMINAL APPEAL No: 60546/98

SULLY J HULME J HIDDEN J Thursday, 24 February 2000 REGINA -v-Stuart James McINTYRE JUDGMENT

1 SULLY J: I agree with Hulme J.

IN THE COURT OF CRIMINAL APPEAL No: 60546/98

SULLY J HULME J HIDDEN J Thursday, 24 February 2000 REGINA -v-Stuart James McINTYRE JUDGMENT

2 HULME J: On 21 July 1998 the Appellant was convicted by a jury on two counts, one to the effect that he broke and entered a dwelling house and therein maliciously damaged property by fire; and the second, that he stole a motor vehicle in that he took it and drove it without the consent of the owner. The substantive issues in the trial were whether the Crown could prove that a fire which occurred had been started by the Appellant; and in relation to the second count, whether the Crown could prove both that the Appellant was not a part owner of the vehicle, and that he had no bona fide claim of right to drive it. 3 On 15 September 1998 the Appellant was sentenced to penal servitude for a minimum term of 3 years and an additional term of 2 years in respect of the first charge; and to a fixed term of 12 months' imprisonment on the second, such term to run concurrently. 4 On 21 October last, an appeal to the Court was heard. Taking the view that the appeal should succeed, the Court then made orders that the appeal be allowed; that the convictions and sentences consequent thereon be quashed; and that there should be a new trial of the Appellant. These reasons are those which the Court said would be published later. 5 At the time of the incidents, namely 7 June 1997, the dwelling house was occupied by a Miss Mandy West and her children and, on the Crown case, she was also the owner of the motor vehicle. Commencing in about 1994 the Appellant became the de-facto partner of Miss West. They separated in November 1995, resumed cohabitation in June 1996 and separated again in April 1997. According to the evidence of Miss West, their contact thereafter was marked by threats and abuse and numerous phone calls initiated by the Appellant. However, it does not appear that all contact was of that description. 6 Be that as it may, the Crown case was that on the evening of 7 June 1997, Miss West, her two sons and one of their friends were in the lounge room of the Housing Commission home they occupied. Commencing at about 7.30pm the Appellant rang on a number of occasions. Then Miss West heard noises outside the house. After a time she saw the Appellant crouched outside the back door which he began to kick. He then went to the front door and started to kick it. By this time she and the children were quite scared. Miss West seized the opportunity to open the back door and told the children to run off. They did so and Miss West again closed the door. The Appellant then broke the bathroom window and after hearing him step on glass inside the bathroom, Miss West opened one of the doors and ran outside and over the fence. Miss West said that at different times during the course of her escape she saw the Appellant standing both close to the fence and also at the back door. Miss West and the children went to the house of a neighbour, Mrs Ford, about 5 doors down the street. 7 At a time the evidence suggests was shortly thereafter, Mrs Ford and a friend Ms Scott went to Miss West's residence where the Appellant was seen to be inside and things were heard being moved around. He was then observed to drive off in the motor vehicle past Mrs Ford's house. A little later Mrs Ford observed that the vehicle had returned to the driveway of Miss West's house. After going inside again and informing Miss West of what she inferred was the Appellant's return, Mrs Ford and Ms Scott went outside again and then saw smoke coming from Miss West's house. At some time Mrs Ford heard the Appellant call out "bitch" and move towards the car. Miss West said that after being told her house was on fire she saw her car, with the Appellant driving it, again go past Mrs Ford's. 8 The three women went to Miss West's house; the fire brigade attended; and the fire was extinguished. On examination of the premises, it became apparent that the fire had been largely confined to the lounge room. Mr Brogan, an inspector from the New South Wales Fire Brigade, and Detective Smith from the Penrith Crime Scene Unit, gave evidence to the effect that there were two distinct sources of fire. One was at the electric radiator which had been on. Mr Brogan gave evidence that over and around this a bean bag and doona had been placed. The evidence of Detective Smith was to the effect the items were on the radiator. Mr Brogan gave evidence to the effect that in his view this fire had been deliberately lit. 9 The second source of fire was a single lounge chair, the foam padding and vinyl covering of which had been burnt. Mr Brogan opined that the fire to the chair had been started by an open flame such as from a match or cigarette lighter. He said it was possible that a dropped cigarette could have been the source of ignition, although he found no evidence to lead him to deduce that it was. It should be recorded, however, that there was no evidence found after the fire of a cigarette lighter or match in the vicinity; nor was there direct evidence of such items having been used. Again, Mr Brogan expressed the view that there was a high probability that this fire also had been deliberately lit. He said that the fire had not spread from one of the areas of ignition to the other. 10 Detective Smith from the Penrith Crime Scene Unit also said it was possible that the fire in the chair could have been started by a dropped cigarette, although it would take anything from 45 to 90 minutes for such a fire to eventuate [AB365, 386]. Miss West gave evidence that the Appellant had arrived at her place at about 8 o'clock. Mrs Ford gave evidence that Miss West's children had arrived at her house, screaming, at a quarter to nine. Mr Brogan gave evidence that the call to the fire brigade had occurred at 9.08 pm. 11 Miss West also gave evidence which bears on the possibility that the fires may have occurred accidentally and I should refer to it. The radiator was on; but although her evidence suggests that the location where the children had been sitting on or under the bean bag and doona changed during the course of the evening's events, the tenor of her evidence was that the bean bag and doona were some appreciable distance from the radiator when she left the house. There was no evidence that Miss West had been sitting on the chair which was burnt, and she denied having done so. Although she acknowledged that there had been cigarettes or tobacco and a lighter or matches in the lounge room, she denied having been smoking. There was no contrary evidence. 12 Miss West denied also a suggestion put to her that she had desired to move from the house. Evidence was called from an employee of the Housing Commission to the effect that at no relevant time had Miss West made any request in that regard to the Commission. Miss West did acknowledge having heard at some party a story that some other tenant of the Commission desirous of moving had had a fortuitous fire. 13 For his part, the Appellant gave evidence that although he was alone in the house at a time shortly before which the fire was observed, Miss West and presumably the children having left shortly before or coincidentally with his entry, the house was not on fire when he was there. 14 The grounds of appeal are as follows:- 1. The trial miscarried by reason of trial counsel's conduct and his incompetence. 2. His Honour erred in criticising the Appellant for his failure to put to police that he was of the opinion that Miss West lit the fire in her premises; 3. His Honour erred in his directions upon the Appellant's case; 4. His Honour erred in directing the jury to consider whether payment by the Appellant of $400 towards the purchase of a motor vehicle may have been by way of a gift to her by the appellant;