CAMPBELL v R [2004] NZCA 167 (2 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA375/03THE QUEEN

v

DONALD MARTYN CAMPBELL

Hearing: 29 July 2004

Coram: Glazebrook J Gendall J Randerson J

Appearances: No appearance for Appellant
M F Laracy for Crown

Judgment: 2 August 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

[1] Mr Campbell was convicted following a jury trial in the District Court at Otahuhu of one count of arson and one further count of attempted arson. He was sentenced by Judge A M J Bouchier to two years imprisonment on 15 February 1995. His appeal against conviction and sentence was dismissed on a ex parte basis by this Court on 27 July 1995. He has been granted a rehearing of that appeal.
[2] The appeal (now only against conviction) was set down for hearing on 19 May 2004, but Mr Campbell failed to appear. The matter was then set down for 29 July 2004. As of 26 July 2004 no written submissions had been filed by Mr Campbell. A memorandum was accordingly issued advising Mr Campbell that the hearing would proceed unless he were to file a notice of abandonment before the hearing. He was informed that he would have the opportunity to make oral submissions at the hearing. Mr Campbell did not appear on 29 July 2004 when the appeal was called and had, we understand, earlier in the week, indicated to the Crown that he would not be appearing. We thus conclude that he has no further submissions to make.

Facts

[3] On 27 October 1993 there was a fire at a house jointly owned by Mr Campbell and his ex-wife. About 10 percent of the house was damaged and the firemen were unable to find any accidental reason for the fire. An investigation by an insurance fire investigator indicated that newspaper soaked in diesel had been wrapped around timber framing under the house but that this did not appear to have a connection with the seat of the fire.
[4] At the time of the fire, the property was heavily encumbered with two mortgages, one of which had fallen into arrears. On 30 September the first mortgagee had sent Mr Campbell a letter demanding that the property be handed over so that the security could be realised. A witness deposed that Mr Campbell told her that he could not pay the arrears; he did not want his former wife to have the house; and he would “put a match to it”. Mr Campbell’s ex-girlfriend, Lynn Newman, gave evidence that he told her that he had lit the fire and had used fuel spread around the house and candles to do so. She also gave evidence that he admitted trying to set fire to the house on three or four prior occasions in the week leading up to 27 October, including on the previous Saturday night when he had used the materials found by the fire investigator. A number of other witness gave evidence that Mr Campbell had told them of his intention to burn down the property.

Grounds of appeal

[5] The Notice of Rehearing filed by Mr Campbell indicates that the appeal against conviction is brought on the grounds that the verdict of the jury was unreasonable and against the weight of the evidence, in that there was no physical evidence connecting Mr Campbell to the offence, and that there has been a miscarriage of justice occasioned by one or more of the following:

• (a) failure by trial counsel to follow Mr Campbell’s instructions, particularly in his failure to locate and call alibi witnesses;
• (b) failure of summonsed defence witnesses to appear; and
• (c) alleged perjury by Ms Newman.

Further details of these complaints are contained in a letter from Mr Campbell dated 2 July 1995.

[6] We understand that no waiver of privilege has been provided to the Crown and no details of the evidence that would have been given by the summonsed witnesses has been provided. In addition, no evidence has been put forward to support the allegation of perjury.

Crown submissions

[7] On the ground that the verdict was unreasonable, the Crown submitted that there was overwhelming evidence entitling the jury to conclude that the Crown had proved its case beyond reasonable doubt. The Crown was able to provide an expressed motive, Mr Campbell had acknowledged taking diesel to the property, and he had made admissions of wanting to burn the house, trying to burn the house and finally burning the house. The lack of physical evidence connecting Mr Campbell to the fire was, it was submitted, irrelevant.
[8] In relation to the other grounds, the Crown pointed out that there is simply no evidence to support any of Mr Campbell’s assertions, either in relation to the conduct of his defence or in relation to the evidence of Ms Newman. The Crown further submitted that Mr Campbell’s claims are dubious. If a witness could not be located, the proper course was to ask for an adjournment. The Crown also questioned the relevance of any alibi evidence able to be called by Mr Campbell (if the subpoenaed witness was to provide such evidence). Ms Newman’s evidence was that Mr Campbell told her he had started the fire at 2.00 p.m. and Mr Campbell had acknowledged in his initial statement to police that he was at the property at that time.

Discussion and result

[9] We are satisfied from our perusal of the record that there was ample evidence upon which the jury was entitled to convict. We also accept the Crown submission that there is no material before us to support any of the other grounds of appeal. The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington