R v Frangulis [2006] NSWCCA 363

New South Wales Court of Criminal Appeal

CITATION: R v Frangulis [2006] NSWCCA 363

HEARING DATE(S): Friday 23 June 2006

JUDGMENT DATE: 24 November 2006

JUDGMENT OF: Giles JA at 1; Grove J at 2; Hidden J at 3

DECISION: Appeal allowed in part, matter remitted to District Court.

CATCHWORDS: CRIMINAL LAW: - Appeal by Crown under s5F, Criminal Appeal Act - admissibility of evidence - admissions to police officer - whether s281 of the Criminal Procedure Act complied with - admissions to insurance investigator - investigator acting on behalf of police as well as insurer - whether unfair to admit that evidence.

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995

R v Taouk (2005) 154 A Crim R 69 CASES CITED: R v Em [2003] NSWCCA 374 The Queen v Swaffield, Pavic v The Queen (1998) 192 CLR 159 EM v Regina [2006] NSWCCA 336

PARTIES: Regina (Crown) Spiros Frangulis (respondent)

FILE NUMBER(S): CCA 2006/426

COUNSEL: G Smith SC with J Girdham (Crown) P Byrne SC with G Thomas (respondent)

SOLICITORS: S Kavanagh (Crown) Jordan Djundja Lawyers (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2005/11/0661

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

IN THE COURT OF CRIMINAL APPEAL 2006 / 426

GILES JA GROVE J HIDDEN J Friday 24 November 2006 REGINA v Spiros FRANGULIS Judgment 1 GILES JA: I agree with Hidden J. 2 GROVE J: I agree with Hidden J. 3 HIDDEN J: The respondent, Spiros Frangulis, is awaiting trial in the District Court upon a charge of dishonestly damaging property by means of fire with a view to making a gain: s197(b) of the Crimes Act. The charge arises from a fire which occurred at a restaurant at Hurstville, owned and operated by the respondent, on 20 May 2002. After a lengthy voir dire hearing, the learned trial judge rejected certain evidence tendered by the Crown. The Director of Public Prosecutions brings the present appeal against that ruling, pursuant to s5F(3A) of the Criminal Appeal Act. 4 In his judgment, his Honour summarised the Crown case in this way: The Crown alleges that during the course of Monday 20th May 2002, the accused went to his restaurant at Hurstville on two separate occasions during the afternoon and on each occasion on entering the premises turned off the alarm system and on leaving the premises on each occasion activated or turned on the alarm system. The Crown alleges that according to alarm records for the restaurant, on the last of those two occasions that the accused attended the premises on this day, he turned off the alarm when he entered the premises at about 3:30pm and then turned on or activated the alarm when he left the premises at about 4:25pm that afternoon. No further alarm signals were monitored according to alarm records held by the alarm monitoring security company until about 7:10pm that evening when, on the Crown case, a series of alarm activations commenced, emanating progressively from a number of sensors, including smoke sensors, within the premises. These activations continued until approximately 7:20pm according to the alarm records. It is the Crown case that these various alarm activations which were recorded from 7:10pm were caused by a fire that broke out on the ground floor of the restaurant. After the fire was extinguished by members of the fire brigade a number of time delay incendiary devices were found on each of the two floors of the restaurant. Those devices on the ground floor were in a burnt and melted condition, however the devices found on the upper floor were largely intact and consisted of 2 litre plastic milk containers filled with an accelerant, methylated spirits. In some of those containers candles had been placed in such a way that the candles extended up from the bottom of the milk container through methylated spirits with the top of the candle extending beyond the level of the liquid and through the top of the container, which candles on the Crown case enabled the ignition of the accelerant to be delayed following the lighting of the candles. In addition to the discovery of these time delay incendiary devices in the accused's restaurant, investigating fire brigade and police officers at the scene, also concluded that there were no signs of forced entry to the restaurant prior to the arrival of the fire brigade. 5 In the early hours of 21 May 2002, the day after the fire, the respondent made a statement to Detective Sergeant Thornton at Hurstville Police Station. On 27 May and 16 July 2002 he took part in recorded interviews with Mr Robert King, a private investigator engaged by the insurer of the restaurant business. In the statement of 21 May and the interview of 27 May the respondent gave an account of his movements on the afternoon of 20 May to the effect of that summarised by his Honour, that is, that he went to the restaurant twice, each time turning off the alarm when he entered and turning it on again when he left. As his Honour said, alarm records show that there was no further alarm activity until the outbreak of the fire. The Crown relies on what the respondent said in the statement and the recorded interviews as admissions, tending to prove that he was the last person to have been in the restaurant before the fire started. Of the two interviews with Mr King, argument focused upon the first of them, that of 27 May 2002. Although the later interview dealt with matters relating to the setting of the fire, it was in that first interview that the respondent recounted his movements on the day in question. 6 His Honour rejected the tender of the statement and the interviews, and it is against that ruling that the present appeal is brought. The admissions in the statement of 21 May and the interview of 27 May are crucial to the Crown case, such that it is substantially weakened, if not eliminated, by their rejection. The Crown prosecutor in this Court acknowledged that the rejection of the interview of 16 July, of itself, would not have that effect. Accordingly, this Court's jurisdiction under s5F(3A) is properly invoked. Mr Byrne SC, who appeared with Mr Thomas for the respondent, did not submit the contrary. It is necessary to consider the statement and the interview separately, as they raise different considerations.