Regina v Shane Patrick O'DONOHUE [2001] NSWCCA 458

New South Wales Court of Criminal Appeal

CITATION : Regina v Shane Patrick O'DONOHUE [2001] NSWCCA 458 FILE NUMBER(S) : CCA 60439/00 HEARING DATE(S) : 9/11/01 JUDGMENT DATE : 21 November 2001

PARTIES : Shane Patrick O'Donohue (Appellant) Regina JUDGMENT OF : Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0039 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : D M L Woodburne (Crown) R J Button (Appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appellant)

LEGISLATION CITED : Criminal Appeal Rules 1952 Crimes Act 1900 (NSW) CASES CITED: Plomp v The Queen (1963) 110 CLR 234 DECISION : Appeal should be allowed and the verdict and conviction set aside; No new trial ordered

- 1 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60439/00 HEYDON JA DOWD J BELL J

21 November 2001 REGINA v Shane Patrick O'DONOHUE

Judgment 1 HEYDON JA: I agree with the reasons given by Bell J for the orders which the Court made on 9 November 2001. 2 DOWD J: I agree with Bell J. 3 BELL J: On 3 May 2000 the appellant was arraigned in the Sydney District Court on an indictment charging him with (i) malicious damage by means of fire to part of premises known as the Charles Hotel with intent to cause bodily injury to persons within the Hotel contrary to s 196(b) of the Crimes Act 1900 (NSW) ("the Act"), and (ii) in the alternative, malicious damage by means of fire to part of premises known as the Charles Hotel contrary to s 195(b) of the Act. The offence charged in court one carries a maximum penalty of imprisonment for fourteen years and the offence charged in the alternative count carries a maximum penalty of imprisonment for ten years. 4 The appellant pleaded not guilty to both counts. A jury was duly empanelled to try the matter. On 9 May 2000 the jury retired to consider its verdict. The jury were unable to come to a unanimous decision with respect to count one and, in respect of that count, they were discharged. They returned a verdict of guilty in respect of count two. 5 On 7 July 2000 the appellant was sentenced to imprisonment to a term of three years to commence on that day and to conclude on 6 July 2003. The trial judge specified a non-parole period of eighteen months to conclude on 6 January 2002. She directed that the appellant be released to parole on that date conditioned upon him accepting the supervision of the Probation and Parole Service. 6 The appellant appealed against his conviction. That appeal came on for hearing on 9 November 2001. On that occasion the Court made orders allowing the appeal, quashing the appellant's conviction and substituting a verdict of acquittal. These are my reasons for joining in those orders. The facts 7 Sometime around 4.32pm on Friday 26 May 1995 a fire was discovered in room 8 in the Charles Hotel, Chatswood. Two single beds in that room had been pulled together. The bedding had been removed and placed between the beds and apparently set alight. In the opinion of one of the Fire Officers the fire had been burning for approximately ten minutes at the time it was extinguished. It had not been caused by an electrical fault. 8 The door to the room was locked. A second door giving access from the room to the roof was also locked. The housemaid said that she had tidied the room that morning. The beds were apart. She had left the window open to air the room. 9 One of the hotel's residents, Ms Niland, was talking to a friend in a lobby area outside room 8. They were there for a period in excess of ten minutes prior to the discovery of the fire. Ms Niland saw no one enter room 8 before the alarm was raised. 10 One of the proprietors of the hotel noticed that a ventilation pipe attached to the outside of the building which ran from the roof to the ground had "skid" and "slip" marks on it. These marks were obvious and recent. 11 The appellant, who was aged twenty-four years was drinking in the Public Bar of the Charles Hotel during the course of the morning of Friday 26 May 1995. Some time around 11:00 or 11:30 am a friend of his, Ghita Scott, joined him. She left after half an hour or so to attend a luncheon appointment. The appellant remained at the hotel. During the course of the afternoon Ms Scott returned to the hotel and joined the appellant in the public bar. Later they moved to the Wild Turkey Bar where they started to play a game of pool. Ms Scott recalled that the appellant said something to her about meeting a friend named Andrew. He left and was absent for a period of about half an hour. She thought this occurred between 3:00 and 4:00 pm. 12 When the appellant rejoined Ms Scott in the bar she observed that he was limping and that he showed signs of exertion. His cheeks were very red and he was breathing heavily. He had a cut or graze on one of his hands. There was a small rip in his jeans. He said that he wanted to leave the hotel. Ms Scott suggested that they should stay and finish the game of pool, but he insisted that they should go. They did so. The interval between the appellant returning and the two of them leaving the hotel was about ten minutes. 13 As they walked outside the hotel Ms Scott saw a fire engine. The appellant told her not to look over at it, to just keep walking. They got into Ms Scott's car and drove away. In the course of the journey the appellant asked Ms Scott if she wanted to know what he had done. He went on to give an account that he had lit the fire at the hotel. Ms Scott did not recollect the precise terms of the conversation. The appellant said that he had been in one of the rooms and that he had done something to the bed. He referred to the use of a match and he said that he had jumped out the window. Before getting out of the car at the Hornsby Railway Station the appellant told Ms Scott that he had only been joking. He told her that in the event that anyone was to ask her questions about the matter she should say nothing as his remarks had been made only in jest. 14 In the course of cross-examination Ms Scott agreed that the appellant was a person known to her as a practical joker. She was aware of occasions when the appellant had make hoax telephone calls to the Ambulance Service, the Police and the Fire Brigade. It was suggested to her that she had seen the appellant limping and wearing jeans with a tear in them on the day following the fire. She was confident that the appellant had been in this condition when he re-joined her at the hotel.