THE QUEEN v JOLIE RENEE LEACH [1999] NZCA 277 (24 November 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 389/99

THE QUEEN

V

JOLIE RENEE LEACH

Hearing:	24 November 1999
Coram:	Richardson P Heron J Robertson J
Appearances:	P R Connell for Appellant D M Wilson QC for Respondent
Judgment:	24 November 1999

judgment of the court DELIVERED BY ROBERTSON J

[1] After trial in the District Court at Hamilton in July 1999 the appellant was found not guilty on one charge that :

[diamond] on or about the 27^th day of March 1997 at Hamilton stole $60.00 cash the property of Troy Edward McBeth Fettes from a dwelling house situated at 51 Sare Crescent;

but guilty of a second count :

[diamond]that on or about the 27^th day of March 1997 at Hamilton she wilfully set fire to a building namely the dwelling house situated at 51 Sare Crescent.

[2] The appellant was subsequently sentenced to 2 years imprisonment.

[3] The sole contention in this appeal against conviction only is that the verdict is unreasonable and could not be supported having regard to the evidence.

[4] This case depended on circumstantial evidence.This Court in R v Ramage [1985] 1 NZLR 392 at 393 noted :

The Crown case against the accused was circumstantial.In such a case the jury may infer guilt where that is the only rational conclusion on the facts proved:see the direction in R v Hodge (1838) 2 Law CC 227.The common ground advanced by the applicants - that the verdict is unreasonable or cannot be supported having regard to the evidence - is that contained in s 385(1)(a) of the Crimes Act 1961.A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.It is not enough that this Court might simply disagree with the verdict of the jury: See R v Mareo (No 3) [1946] NZLR 1660;R v Ross [1948] NZLR 167; R v Kira [1950] 420;(sic)Chamberlain v R [1984] HCA 7; (1984) 51 ALR 225.

[5] After reviewing the evidence in Ramage Somers J went on at 395 :

A decision as to whether a verdict was unreasonable or cannot be supported having regard to the evidence is not one which lends itself to any extensive elaboration of reasons.We are satisfied that it was open to the jury to find beyond reasonable doubt that the fire was deliberately lit and that it was the applicant who were responsible.

[6] This test was recently affirmed in R v H (CA 200/98, 28 October 1998) where at p 11 this Court said :

In our view R v Ramage encapsulates the view expressed in other authorities to the effect that the Court on appeal "... does not proceed on such lines as these - look at the evidence, see what conclusion the Court would have come to and set aside the verdict if it does not correspond with such conclusion."R v Hancox (1913) 8 Cr App 193, 197.Also this Court in R v Allandale & Dunnett (1905) 25 NZLR 1507 to the effect :

Briefly put, I understand that principle to be that this Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict is such as 12 reasonable men (sic), giving due weight to the presumption of law in favour of the prisoner's innocence, could not properly have found.All questions of the credibility of witnesses, and within the above limits, of the weight to be attached to their evidence, are for the determination of the jury and must be held to have been determined by their verdict:per Edwards J.

[7] Counsel for the appellant submitted that a properly instructed jury acting reasonably must have entertained a reasonable doubt as to the guilt of the appellant :

[a] In determining by inference the appellant must have been the person who entered the house at 51 Sare Crescent, Hamilton and set fire to the cartons of rubbish in the lounge of the dwelling.

[b] In accepting the surrounding factors and circumstances as sufficiently proven facts upon which such an inference could be based.

[c] By not excluding the reasonable hypotheses raised by the appellant's defence at trial, based on the evidence, that were consistent with innocence. These hypotheses being the likelihood of accidental ignition and that a person other than the appellant may have been responsible for deliberately lighting the fire.

[8] The fire in question occurred on the night of 26, 27 March 1997 at a home owned by a woman and her son, Mr Rhys Willis, in Sare Crescent in Hamilton.On the night in question Mr Willis had been living in the house for about 3 weeks and had two friends Owen Welsh and Troy Fettes flatting with him.

[9] The three men had a take-away meal together on the evening of the 26^th and later Mr Willis dropped his flatmates off at a tavern, returning home at about 10 pm.He watched television before turning out all lights checking that the house was secure and going to bed.He left a ranchslider shut but unlocked for his flatmates to gain access to the house.

[10] A little after going to bed he heard the sounds of three young women arriving.They were the girlfriend of one of his flatmates, a Ms Bruce, a Ms Jury and the appellant.The three women had been drinking and were all affected by alcohol.Mr Willis was not pleased to find them at the house.Mr Willis heard the appellant and Ms Bruce go into Owen Welsh's bedroom.He heard the women talking.Ms Bruce came into Mr Willis' room and spoke to him briefly.About 11.30 pm he heard Ms Bruce call out that two tea-towels on the oven door in the kitchen had caught fire.He went out to inspect the damage and concluded that the oven was not on and the fire from the tea-towel was out.He went back to bed.After a while he became aware that the appellant was still in the house so he called out to Ms Bruce.Mr Willis made it clear that he did not want the appellant to remain in the house.Ms Bruce reported this to the appellant who indicated she had overheard what was being said by Mr Willis, that she would go home but Mr Willis understood her to be angry about what had happened.

[11] An argument later developed between Ms Jury and Ms Bruce.They left the house and went off down the road leaving the appellant behind.They were away from the house for a period but when they were back 20 to 30 minutes later, they found that the appellant was still in the vicinity of the house at 51 Sare Crescent.

[12] About midnight Mr Willis was dozing in his bed when he heard the ranchslider open and someone walked up the hallway to Owen Welsh's room.He thought it was Ms Bruce coming back to wait for her boyfriend.He heard a light switch being turned on and then some strange noises.After a while he became anxious.He heard rumbling and crackling noises and when he opened his bedroom door found the house was on fire.He escaped from the building and gave the alarm.

[13] The Fire Service arrived and a senior station officer who subsequently inspected the scene came to the conclusion that the fire was deliberately lit, set by the introduction of fire without accelerant to a pile of cardboard boxes and papers in the lounge.Some considerable time later the two flatmates returned to the house.

[14] The Crown's case was that the fire was wilfully lit by the appellant.It led evidence to exclude reasonable alternative possibilities so that the jury would be left that the only rational conclusion on the proven facts was the guilt of the appellant.

[15] Mr Connell (who was not counsel at trial) contended that the totality of the evidence is insufficient to meet the tests enunciated in R v Puttick (1985) 1 CRNZ 644 namely, that inferences must be logical inferences from proven facts not mere speculation or guesswork.

[16] He submitted that mere presence in the vicinity and proof of opportunity even when coupled with feelings of ill well are insufficient to reach that high standard.

[17] In addition it is submitted that the Crown case does not properly exclude other available inferences or hypotheses.It is noted that the evidence of the Fire Safety Officer, Geoffrey Purcell that it was most probably a deliberately lit fire by somebody introducing an ignition source into the pile of paper and cartons near the lounge doorway, does not provide a basis for excluding as a reasonably hypothesis an accidental ignition, particularly in light of the evidence of people smoking in the house early in the evening.

[18] There was also submitted to be the possibility that some totally unrelated person might have entered into the house.Although there were suggestions that Mr Willis thought the footsteps were light, he agreed it was not like someone "trying to creep in very quietly" and therefore the possibility of a stranger entering a house imagining it was unoccupied was more likely than that of the appellant returning knowing that Mr Willis was there.As she knew she was unwelcome it was submitted that she would be anxious not to disturb the occupant.

[19] Reference was also made to the attempt a little earlier in the evening by someone (and it is not suggested the appellant) to ignite the tea-towels on the oven door which would also indicate that all other possibilities had not been excluded.

[20] Particular emphasis was placed on the comments of Hardie-Boys J in R v Laugalis (1993) 10 CRNZ 350 when he said at 359 :

The Crown was not required to disprove every possibility that the ingenuity of counsel might devise ... It had to exclude any reasonable hypothesis, based on the evidence, that was consistent with innocence but no more.

[21] We are not satisfied that on the totality of the material that it was not properly available to the jury to conclude that this fire was purposely lit by the appellant.The Puttick tests do not require that the Crown in a case of circumstantial evidence exclude every extreme possibility which the fertile ingenuity of defence counsel might be able to articulate.The law and litigation are grounded in reality, human experience and common sense. Possibilities must be rooted in an evidential basis which sensibly emerges from the particular facts of the case.

[22] In this case the jury had available to them as well as the narrative (about which there was really no dispute) additional factors which had to be considered including that :

[a] There was no electrical power in the area where the fire started and the evidence of the Fire Safety Officer established there was no indication that an electrical fault might have been the cause of the fire.

[b] There had been no cooking in the oven on the night.The three men who resided in the flat had had a take-away meal.There was unchallenged evidence that no-one had used the oven, toaster or jug in the vicinity of the electric stove that night.

[c] The gas heater in the house had been used only up until Mr Willis had left to drop the other two men off at the hotel.Further his evidence was that after securing the house after Ms Jury and Ms Bruce left he noticed that the gas heater was not on.The Fire Officer found no indication that the gas heater could have been the seat of the fire and a police officer confirmed that the fire travelled towards the heater not away from it.

[d] Although the jury may well have been somewhat perplexed by the tea-towel incident when the three young women came to the house, the evidence was that the burning tea-towel had been fully drenched with water by the time they left. The time lapse between this incident (which has all the hallmarks of sky larking) and the fire which destroyed the house was such that there could not have been a direct connection.

[e] Although there was evidence that people had been smoking in the house earlier in the evening, Mr Willis' uncontradicted evidence was that he had checked the house after the young women left.There was no smell of smoke and if there had been anything even smouldering it would necessarily have come to his attention at that stage.

[f] There was no evidence that any item of furniture could have been the seat of this fire.

[g] A matter of critical importance was that the fire coincided with the entry of the intruder into the house.The three women had been there.They had eventually left.Mr Willis had checked the house and gone back to his bedroom.He then heard someone in the house.A short time later he investigated and found the house ablaze.

[23] From all of this the Crown submitted that the only reasonably sensible possibility on the totality of the evidence was that the fire had been set by that person who had entered the house shortly beforehand.We are satisfied that conclusion was available on the evidence and that it follows that the fire was deliberately lit.

[24] It is next argued for the appellant that the evidence was nonetheless insufficient to establish beyond reasonable doubt that it was the appellant who was the intruder who became the arsonist and not some other person.She had consistently denied that she had returned to the house.She gave evidence to that effect.The jury heard and saw her.It was entitled to reject her evidence and must have done so.It was still necessary however for the jury to consider whether all other reasonable possibilities had been excluded.

[25] The Crown submitted that the possibility of a total stranger having gained entry to the house at that point is so remote that it can properly be excluded. The house was generally secure apart from the ranchslider which had been left shut but unlocked.It requires a thesis that someone, on what were described as virtually deserted streets, had just happened at that particular stage to have come upon the house, found the shut but unlocked ranchslider, entered into it and while inside lit a pile of paper and cardboard.

[26] The uncontroverted evidence was that the two flat-mates had left the property at 9.30 pm when they were driven to the tavern by Mr Willis.They were in each other's company until they returned about 3 am, long after the fire had destroyed the dwelling.They had property which was uninsured which was lost in the fire.There was no suggestion that they had any reason to commit the crime.

[27] Ms Bruce and Ms Jury had been away from the property for 20 to 30 minutes before the fire started and there was no serious suggestion that they were implicated.

[28] The part-owner of the house Mr Willis was 19 years of age.He had no contents insurance so sustained personal loss even although the house property owned by himself and his mother was insured.He had to make an escape through an upper window into a rose bush.He had not been drinking on the night. There is nothing to indicate (nor was it suggested in the course of the hearing) that he had lit the fire.

[29] Over and against all of this the Crown submitted that in respect of the appellant as well as presence, opportunity and if not motive, at least an explanation as to why she might have lit the fire after all that happened.She had been drinking excessively and said herself she was tiddly.She had been present at the property at the time of the tea-towel incident.She had been prepared to go to the house against Mr Willis' express wishes.She was not pleased and was shocked at hearing that she had to leave.She was subsequently seen near the house in the driveway, and in an interview with a police officer admitted she had gone back to the vicinity of the house although she said she had decided not to go in.She knew that entry was possible through the shut but unlocked ranchslider.The person who went into the house appears to have had some familiarity with the layout of the house which the appellant would have had.She gave inconsistent accounts as to what she was doing during the critical 20 to 30 minutes after she had left about the time the other two women left and before she was again in the vicinity of the property after the house was ablaze behaving in a way which was at least hyperactive if not more bizarre.There were extraordinary comments made to both Mr Willis and his mother as they remembered events, although the appellant had no recollection of these encounters.These were areas of conflict which the jury had to determine on the basis of all they heard and saw from the various witnesses and could provide probative material.

[30] In all these circumstances we are satisfied that on the totality of the evidence and the available inferences it was properly open to a jury to conclude that not only was the crime of arson committed but that the appellant was the arsonist.

[31] The appeal must accordingly be dismissed.

Solicitors

Crown Law Office, Wellington