Regina v Pearson [2000] NSWCCA 149

Reported Decision : 114 A Crim R 80

New South Wales Court of Criminal Appeal

CITATION : Regina v Pearson [2000] NSWCCA 149 FILE NUMBER(S) : CCA 60324/99 HEARING DATE(S) : 01/05/2000 JUDGMENT DATE : 13 June 2000

PARTIES : Regina v William Edward PEARSON JUDGMENT OF : Dunford J at 1-4; Foster AJA at 5-36; Smart AJ at 37-39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/0847 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : D C Frearson for the Crown S J Odgers for the Appellant SOLICITORS : S E O'Connor for the Crown John Bettens & Co for the Appellant CATCHWORDS : Appeal against conviction - did dishonestly destroy property with a view to making a gain - possibility of spontaneous combustion or electrical malfunction - failure to give directions to the jury - failure to discharge jury - inadvertent contact of solicitor with two members of the jury - failure to disclose contents of an MFI. LEGISLATION CITED : Crimes Act 1900 Chamberlain v The Queen, (1983) 72 FLR 1 CASES CITED: Elfar v Tier, unrep, NSWCCA 9 October 1995 Webb v R; Hay v R (1994) 181 CLR 41 DECISION : The appeal must be upheld, the conviction quashed and a new trial ordered.

IN THE COURT OF CRIMINAL APPEAL No 60324/99 DUNFORD J FOSTER AJA SMART AJ

Tuesday, 13 June, 2000 REGINA -V- WILLIAM EDWARD PEARSON JUDGMENT 1 DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgments of Foster AJA and Smart AJ, and for the reasons given by Foster AJA I agree that the trial miscarried and that the appeal should be upheld and a new trial ordered. 2 Initially I was inclined to the view that, having regard to the fact that it was a second trial, that it had been a long trial (21 days) with a break in the middle for the appellant's father's funeral, and that the jury had already been deliberating on the Friday for over 4½ hours, her Honour was correct in not disclosing the contents of MFI 46 and in refusing the application by defence counsel to discharge the jury on the ground that if the jury's verdict had been an acquittal, the time taken by the trial would not have been wasted, there would have been no appeal, and the only subsequent proceedings would have been the possible contempt proceedings against Ms Hirata; but on reflection I have concluded that, attractive as that approach may have seemed at the time, it was not appropriate. 3 We do not know what, if anything, was in the envelope, and we do not know whether the approach by Ms Hirata to the juror was an attempt to improperly procure a discharge of the jury, or an attempt to improperly procure an acquittal. If the approach had led to an acquittal, it would have been an acquittal to which the appellant would not have been entitled, being improperly obtained; and accordingly I agree that her Honour was faced with a situation where there was only one course to be taken, namely the discharge of the jury. 4 Like Smart AJ, I would like to reserve for further consideration in an appropriate case, whether if an accused was a party to an attempt to improperly influence a jury and was subsequently convicted, he or she would in that situation be entitled to a new trial. 5 FOSTER AJA: This is an appeal by William Edward Pearson against his conviction on 31 May 1999, on a charge pursuant to s. 197(b) of the Crimes Act 1900, that he, on 18 September 1992, at Coogee in the State of New South Wales, did dishonestly, with a view to making a gain for himself, by means of fire destroy property, namely, Coogee Bay Smash Repairs at 260 Coogee Bay Road. He had been indicted on this charge on 22 April 1999 before Latham DCJ at the Sydney District Court and was found guilty by the jury. 6 The appellant was the owner of the business, Coogee Bay Smash Repairs, and the prosecution case alleged that on 18 September 1992, in order to benefit from an insurance policy in relation to the business, he deliberately started a fire in the premises. There was no dispute that the fire commenced sometime before 7.30 pm on that day and that the appellant had left the premises shortly before the fire was noticed. He was the last to leave the premises. The Crown relied upon expert evidence pointing to the fire having been deliberately lit. Reliance was also placed upon evidence that the business was in financial difficulties, especially with regard to a need to construct, within a fairly short space of time, a spray painting booth, for use in connection with the business. There was also evidence that the appellant was in dispute with the landlord. On behalf of the appellant it was asserted that he was not responsible for the fire and that there were reasonable grounds for assuming an accidental cause. Expert evidence to this effect was called on behalf of the appellant. 7 Four grounds of appeal are relied upon. They are as follows: