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. 15 The appellant gave evidence. His account was in conformity with that of Ms Scott concerning the contact between the two of them during the course of the day at the hotel. He said that when he left Ms Scott it was to meet his friend, Andrew, who was in the card machine area. He gave an account that Andrew wanted him to buy a ghetto-blaster. He was suspicious as to the origin of the ghetto-blaster. Andrew became increasingly agitated by his refusal to purchase the equipment. In a moment of anger the appellant had punched the wall next to the card machine and grazed his finger. He returned to Ms Scott and the two of them left the hotel shortly afterwards. He agreed he had made reference to the fire truck in the context of saying words to the effect "don't worry about them … I called them". He said he had been joking at the time of making that comment. 16 The appellant accepted that he had given some account to Ms Scott during the course of the car journey to the effect that he had lit the fire. He could not remember the precise terms of it but did not seek to challenge her version. He had been joking when he said these things to Ms Scott. 17 The appellant said that he had injured his leg and torn his jeans later that night. He had met up with Ms Scott the following morning at the Hornsby RSL. At that time he was wearing the torn jeans and limping. Ground of Appeal – her Honour misdirected the jury with regard to the question of motive, and those misdirections constituted a miscarriage of justice 18 This was the sole ground of appeal. 19 In the course of his closing address trial counsel made the following submission to the jury: "Motive: there's no motive put forward by the Crown as to why this accused would light this fire. In fact, the Crown case comes down to this: people who you would expect would have seen the person who lit the fire, there's no evidence of them seeing anyone. There's no evidence of the accused being in that area of the hotel" (T 14; 9/11/01). 20 At the conclusion of counsel's address, in the absence of the jury, prior to the commencement of the summing-up, the Crown Prosecutor is recorded as raising this matter: "Mr Broadhead said that there's been no motive shown by the Crown. Well, it's clear and Mr Broadhead knows this, your Honour, that the Crown does not have to prove a motive and it would, in my view, confuse the jury into thinking that the Crown does have to prove that there is a motive. That maybe a matter which your Honour should correct now. HER HONOUR: Mr Broadhead? BROADHEAD: It's not in your Honour's proposed material to the jury, as far as the central elements, that a motive must be proven. All I was addressing the jury on was that there was not motive. HER HONOUR: But by saying that, that implies, I think, Mr Broadhead, that the Crown has to prove it. BROADHEAD: No. HER HONOUR: I think to raise it leads them down the wrong track. BROADHEAD: I've got no objection to your Honour saying that the Crown doesn't have to prove a motive. That was not the way that I meant …. HER HONOUR: No, because with your experience you would know that. BROADHEAD: Yes" (p 19-20; 09/11/01). 21 Following this exchange the judge offered counsel the opportunity to deal with the matter himself by way of supplementing his address. He accepted that offer. Following the adjournment, when the jury returned to court, defence counsel made this further submission: "With your Honour's leave, there's a matter I've been thinking about during the adjournment that I think I should raise with the jury. HER HONOUR: Yes, by all means. BROADHEAD: Thank you, your Honour. Ladies and gentlemen of the jury, during the morning tea adjournment, I was having a bit of a think about what I said to you. Perhaps I may have left you in some form of a quandary about a matter, and I just want to clarify it. You may recall I was talking to you about motive, that there's no – and I agree – there's no obligation of the Crown. It's not a proof in the Crown's case that they have to prove that the accused had a motive. It can happen that things can occur where there is no motive. So I don't want you to think that I was suggesting to you that the Crown had to prove a motive by the accused in relation to this day. Thank you"(p 20; 9/07/01). 22 Counsel's submissions were made on Friday 5 May 2000. The trial judge commenced summing-up to the jury on Monday 8 May 2000. The jury retired to consider its verdict at 11:20 am on that day. 23 On Tuesday 9 May 2000 the jury continued its deliberations. During the course of the morning the jury asked a question in these terms: "Your Honour did not summarise the withdrawal of counsel of the word motive in this case at his last part of his summary." 24 Defence counsel was not present at court when the note was received. The appellant was represented by his solicitor. The trial judge informed the parties: "Subject to anything you two might want to say I would be inclined to say to them, I didn't refer to motive because it's no part of the Crown case. Doesn't have to be proved, you've got the essential elements that have to be proved" (p24; 9/07/01). 25 Both the appellant's solicitor and the Crown Prosecutor indicated that they would be content with a direction in these terms. The jury were brought back into Court and her Honour dealt with a number of matters, the last of which was the note to which I have referred. After reading out the jury's question she went on to say: "You're referring to Mr Broadhead, Ms Jenner appears today, not Mr Broadhead counsel for the accused. That's because motive plays no part in your consideration of this case. There is no obligation on the Crown to prove a motive. What the Crown must prove beyond reasonable doubt are the essential elements which are on that sheet of paper which I gave you yesterday and about which I addressed you yesterday. So motive is entirely irrelevant to your consideration as jurors" (p 26; 09/07/00). 26 In Mr Button's submission the trial judge erred both in the statement "motive plays no part in your consideration of this case" and in the statement "so motive is entirely irrelevant to your consideration as jurors". In his submission motive, and absence of motive, were admissible and relevant as circumstantial evidence of guilt or otherwise. In support of this contention he referred to Plomp v The Queen (1963) 110 CLR 234 per Menzies J at 249: "In Mutual Life Insurance of New York v Moss (1906) 4 CLR 311Griffith CJ said: - 'Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act the more important becomes the question of motive. …. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important.' The statement that 'the existence of a motive may tend to show that the person in question did the act simpliciter' is in my opinion sound law because it is sound sense." 27 Absence of motive is a circumstance which the tribunal of fact may take into account as relevantly bearing on whether it is satisfied beyond reasonable doubt of the guilt of the accused. The Crown did not submit otherwise. She did not seek to defend the terms of the trial judge's direction but rather to contend that no miscarriage of justice was occasioned thereby. 28 In the Crown's submission this was not a case in which motive, or absence of motive, played a prominent role. She pointed to the terms of defence counsel's address, noting that the statement set out in paragraph [17] above was the only occasion in which reference was made to the appellant's apparent absence of motive. 29 It was the Crown's submission that the case is not properly characterised as a circumstantial one. Rather it depended upon the jury's acceptance of the evidence of Ms Scott that the accused had made an admission to her revealing knowledge of some of the details of the offence. Absence of motive in such a case was said to assume less significance than it might in a wholly circumstantial case. This submission loses some of its force having regard to the issues upon which this case was fought. There was no challenge to Ms Scott's evidence as to the making of an admission to her in the car after the pair left the Charles Hotel. It was the appellant's case that he was a prankster, given to making tasteless jokes and that his remarks to Ms Scott were no more than that. 30 This was a case which was, to a substantial degree, one dependent upon circumstantial evidence. 31 An examination of counsel's addresses, which were before us on the hearing of this appeal, lent some support to the Crown's submission that absence of motive was not to the fore in the way defence counsel put the appellant's case at trial. Nonetheless, I was not persuaded that the appellant's apparent absence of motive was not potentially a matter of some significance. His counsel did address upon it. 32 In determining whether the Crown had proved the appellant's guilt beyond reasonable doubt it was open to the jury to have regard to the circumstance that the appellant had no apparent motive to set fire to the hotel. The trial judge's direction had the effect of withdrawing this relevant consideration from them. 33 No application for a re-direction was made to the trial judge. In the Crown's submission the Court would not grant leave to rely upon this ground; r 4 of the Criminal Appeal Rules 1952 ("the CAR"). The Crown submitted that the circumstance that trial counsel was not in court at the time the matter arose is not to the point. The appellant's solicitor was in attendance. It is apparent that counsel was present later in the course of the morning and was, no doubt, informed of the terms of the jury's question and the response thereto. At no time was any application made for a re-direction on the question of motive. 34 Counsel had an obligation to be present throughout the trial. He should have been available to assist the trial judge in dealing with the jury's question. It is unfortunate that he was not. I was not, however, of the view that the appellant should be refused leave pursuant to r 4 of the CAR to rely upon this ground. The direction given by the trial judge was wrong. It removed wholly from the jury's consideration the question of the appellant's apparent absence of motive to commit the offence. In the light of the terms of the jury's question, I was not persuaded that this was an issue of such peripheral significance that it might safely be concluded that the verdict would have been one of guilty had the jury been correctly directed. 35 For these reasons I considered that the appeal should be allowed and the verdict and conviction set aside. 36 The appellant had served sixteen months of the eighteen month non-parole period specified. We were informed that this was a second trial. The jury at the first trial were discharged they being unable to reach a unanimous verdict. Taking into account these considerations I was of the opinion that it was not appropriate to order that there be a new trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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