R .v. OLIG [2002] NSWCCA 249

New South Wales Court of Criminal Appeal

CITATION : R .v. OLIG [2002] NSWCCA 249 FILE NUMBER(S) : CCA 60016/01 HEARING DATE(S) : 16 April 2002 JUDGMENT DATE : 16 April 2002

PARTIES : Shane OLIG - Appellant Regina - Respondent JUDGMENT OF : Mason P at 1; Barr J at 2; McClellan J at 43

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70016/00 LOWER COURT JUDICIAL Adams J OFFICER :

COUNSEL : Appellant in person Mr P.E. Barrett for the Crown SOLICITORS : Appellant in person S.E. O'Connor for the Crown

Chamberlain v The Queen (1984) 153 CLR 521 CASES CITED: Shepherd v The Queen (1990) 170 CLR 573 Neal v The Queen (1982) 149 CLR 305 DECISION : See Judgment at Paragraph 41

IN THE COURT OF REVISED CRIMINAL APPEAL 60016/01

Mason P Barr J McClellan J

16 April 2002 Regina v Shane OLIG Judgment 1 Mason P: I invite Barr J to give the first judgment. 2 Barr J: The appellant, Shane Olig, appeals against a conviction for manslaughter entered in the Supreme Court and seeks leave to appeal against the resulting sentence, namely a term of twelve years with a non-parole period of eight years. 3 The Crown case was as follows. By Saturday 24 July 1999 the appellant had been in a domestic relationship with the deceased, Annette Openshaw, for a substantial number of years. At some time not long before that day they ceased to live together. On 24 July 1999 the appellant went to the deceased's house with a can of petrol and set fire to it. In the resulting fire the deceased was killed. The appellant left the house while the deceased was inside and drove quickly away. Later on the deceased's body was found in the kitchen. Medical evidence established that she died of smoke inhalation. 4 The Crown called several witnesses who were neighbours of Miss Openshaw or who lived nearby. One of them, Mr Devine, heard a banging sound and then the sound of breaking glass and a loud thud which sounded to him like the deceased's front door being closed. He looked out and saw smoke billowing out of the deceased's house and the appellant smashing one of the windows. The appellant was saying, "Annette, get out" and, "Ray, (referring to Mr Devine) call the police". Two other neighbours, Mr Skillman and Mr Kingsbury, awoke to sounds of glass smashing. Mr Skillman heard somebody call, "you bitch". Mr Kingsbury heard that the appellant angrily call out, "Annette, you bitch". Mr Kingsbury saw the house on fire and the appellant coming out of the front door, getting into his car, reversing and driving away. 5 As the Fire Brigade and the police were arriving the appellant telephoned another witness, Ms Jones, and said, "I have done it this time". He said that he was bleeding and had cuts to the arms. He sounded upset and his speech was slow. 6 Mr Devine spoke to the appellant on the telephone and the appellant said, "I've done it this time" or, "I've done it now". He went on to describe his bodily condition and continued, "I put fuel down the hallway and lit it... Tell me, is she OK? If she isn't, I'll kill myself". 7 Another witness, Ms McGregor, said that in February 1999, some five months before the fire, the appellant moved out of the deceased's house and told her, Ms McGregor, in a very distressed state that he believed that the deceased was having an affair with another neighbour. There was other evidence to suggest that that complaint was true. 8 Another neighbour, Ian Bailey, said that a few months before the fire the appellant told him that if he was considering knocking his wife off he would burn the house down and plead diminished responsibility and get out of it that way rather than do life. 9 Murder was left to the jury on the basis of the intention to kill or do really serious bodily injury or on the basis that the appellant saw the probability that the death of the deceased would result but deliberately lit the fire anyway. The alternative verdict of manslaughter was left on the basis that this was an unlawful and dangerous act of the appellant which caused the death of the deceased. The jury in due course acquitted the accused of murder and convicted him of manslaughter. 10 His defence at the trial involved a concession that he took to the deceased's house a jerry can containing petrol. He said, and repeated in this Court, that he had taken the jerry can and its contents to the house at the request of the deceased because the jerry can she had formerly used had been damaged. A conversation took place between the two of them about money and the appellant asked for the return of certain of his money and some papers. The deceased told him that she had spent the money. He did not believe her and threatened to burn down the pergola; that is to say, he did not threaten to burn down the house. He took the jerry can and went to the pergola and poured petrol over the posts. In that way some petrol splashed on him. That was an asserted answer to a piece of evidence in the Crown case against him. He took the jerry can back inside and the conversation resumed. The deceased asked him why he had done what he had done and why he did not burn the house down as well. The appellant said that he would not do such a thing, and that the deceased took the jerry can and splashed petrol on the floor at the point where the hallway joined the kitchen. He said that all he wanted was his money, his birth certificate and some motor vehicle ownership papers. She said that she would get those things for him. She dropped the can of petrol on the floor and went into another room. When she emerged she had something that was burning. She said, "Here's your precious money and piece of paper" and something just went flying over to the petrol where it caught on fire. The deceased was in the hallway at the time. The appellant ran to the front door. There was smoke in the house. The appellant went back inside the house, calling out to the deceased trying to find where she was. He went to the bathroom and tried to kick the door but the heat became unbearable and he was obliged to escape through a window. 11 In his remarks on sentence the learned sentencing judge referred to the account put forward by the appellant, who gave evidence on oath. His Honour observed that the evidence had been rejected as untrue. His Honour said that the appellant had constructed an explanation for the relevant events which was in some senses rather cunning but was so unreal as virtually to demonstrate its falsity. 12 The appellant has represented himself throughout the preparation of his appeal and during the conduct of the appeal. He has made written grounds of appeal and written submissions and has supplemented his written submissions with oral submissions. 13 The first ground of appeal is that the trial judge made errors in the summing up. The ground is left in that bald fashion and nothing has been said in written or oral submissions to explain precisely how it was that his Honour erred. 14 An examination of the summing up shows that his Honour directed the jury in an appropriate way. His Honour gave full and proper directions on the necessary and conventional matters which a trial judge must cover. His Honour dealt appropriately with his explanation of the functions of the judge and jury, the role of counsel and their arguments, unanimity of a jury verdict, and the need for the jury to confine its attention to evidence given at the trial, the assessment of witnesses' evidence, the presumption of innocence and the burden of proof. His Honour also directed the jury appropriately about the elements of the crime of murder as it applied to this case and of manslaughter as it applied to this case. 15 The applicant had the good fortune to be represented by one of the counsel most experienced in this State in the conduct of criminal trials on behalf of accused persons, a member of Senior Counsel. During the summing up, in accordance with the usual invitation to suggest or apply for further directions, counsel raised a number of matters. 16 Although some of the evidence adduced by the Crown was circumstantial in nature, it was not what may accurately be called a circumstantial case. One possible view the jury might have taken was that certain admissions the accused made to the police were true and, of themselves, were sufficient to justify a finding of guilt. The circumstantial evidence which might be said to support that evidence was as I have summarised, namely the observations of the neighbours about what they saw the accused doing at the time the fire started and about the things he said to them. 17 Notwithstanding that this was not strictly a circumstantial case counsel, with a great deal of care, asked the trial judge to identify what he described as "intermediate facts": see Chamberlain v The Queen (1984) 153 CLR 521; and Shepherd v The Queen (1990) 170 CLR 573. His Honour correctly, in my view, declined to categorise any fact as intermediate and having to be proved beyond reasonable doubt. 18 Defence counsel then raised some discussion about the directions, whether and which of the acts of the accused was unlawful so as to draw a distinction between his admitted setting fire to the pergola and what the Crown asserted was his setting fire to the house. At the end of the summing up counsel raised the question whether his Honour had instructed the jury that so far as manslaughter was concerned the jury had been informed of the need for the Crown to prove that the appellant's act was objectively dangerous. As it turned out, his Honour had given such a direction. 19 A reading of the whole of the summing up and the limited way in which experienced counsel responded to it shows, in my opinion, that the summing up contained every direction which it was necessary to give to the jury in order to produce a fair verdict according to law. 20 I may observe in addition that his Honour identified for the jury the issues which appeared to him to arise at the trial and drew their attention to the evidence bearing upon those issues and to the arguments of counsel about those issues. In my opinion, there is no substance in the first ground of appeal. 21 The second ground of appeal complained that his Honour wrongly allowed tape-recorded evidence to go to the jury. The first complaint was made about a videotape that the police made when they attended the premises. As I have said, the defence case was that the appellant took a new jerry can there containing petrol, at the request of the deceased, because her old jerry can was damaged. It was asserted in this Court that the police so arranged objects which they videoed as to conceal the presence of the old jerry can. Implicit in this assertion was a submission that if the jury had been able to see the old jerry can in the videotape they would have been more likely to regard as true the appellant's evidence about why he took the jerry can to the house. It is difficult to see what difference the rejection of the videotape would have made. The tape that the jury saw showed no old jerry can. If it had been rejected, the jury would have been in precisely the same position. I think that there is no substance in this complaint. 22 The second complaint about tape-recorded evidence was of a conversation that took place on 24 July. The appellant was injured after he left the house. He complained of cuts to his wrists that may have resulted from his smashing the window as described by the neighbours. He was taken to hospital. Whilst he was there, Det Jones visited him. After introducing himself, Det Jones made to ask the appellant questions about the fight. Early in the interview Det Jones told the appellant that Miss Openshaw had died and there followed this question and answer: "Jones: I'm sorry to have to tell you this, but obviously we are going to need to speak to you about the circumstances of what's happened this morning. Appellant: She wasn't supposed to die. Nobody was supposed to die."