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GRAY v R [2005] NZCA 90 (3 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA423/04
CA489/04

THE QUEEN

v

KANE DAVID WELLINGTON
DAVID CHRISTIAN GRAY

Hearing: 20 April 2005

Court: Glazebrook, Baragwanath and Goddard JJ

Counsel: K W Burroughs for Appellant Wellington
G Matenga for Appellant Gray
M T Davies for Crown

Judgment: 3 May 2005

JUDGMENT OF THE COURT

An extension of time to appeal is granted to Mr Wellington and Mr Gray but their appeals are dismissed.

____________________________________________________________________
REASONS
(Given by Glazebrook J)

Introduction

[1] Mr Kane Wellington and Mr David Gray were convicted, following a jury trial in the Hamilton District Court, of arson under s 267(1)(b) of the Crimes Act 1961. Both were sentenced, on 6 October 2004, to two years and three months imprisonment.

The facts

[2] In the early hours of 28 November 2003, a Huntly building owned by Transit New Zealand was extensively damaged by fire. The Crown case at trial was that both Mr Wellington and Mr Gray were involved in smashing one of the building’s windows and setting the building on fire. It was alleged that the pair then left the scene and returned some time later to watch the Fire Service battling the fire.
[3] The Crown called two witnesses, Ms Bristowe and Ms Wilson, who had been in the Huntly Hotel carpark at the requisite time. They gave evidence of seeing both Mr Wellington and Mr Gray in the vicinity of the damaged building (which was within sight of the carpark) on the night in question. Identity was not challenged.
[4] Ms Wilson’s evidence was that Mr Wellington and Mr Gray were in the vicinity of the building for 10-20 minutes. She had seen Mr Wellington and Mr Gray right outside the building near some burning papers but she did not know who had lit them. Later she heard a sound like smashing bottles but did not see what was being smashed. She then saw Mr Wellington and Mr Gray jogging back to the taxi stand near the hotel. Approximately 20-30 minutes later she heard the siren, and not long after that she saw the fire engines. She described Mr Wellington as wearing a dark hoodie and dark trousers.
[5] Ms Bristowe stated that Mr Wellington and Mr Gray were at the building for half an hour "fooling around" before they ran quite fast back in her direction to the taxi stand a couple of metres away. She then heard the town siren to summon the fire brigade 5-10 minutes later. She said that Mr Wellington and Mr Gray had been at the taxi stand for about 20 minutes before the fire engines arrived. Ms Bristowe described the clothes worn by Mr Wellington as being a "dark hoodie and dark pants". She did not see anyone kick in the window and did not see any fire. She also did not see any lighted papers.
[6] Mr O’Donoghue, a Fire Safety Officer, stated that, in his opinion, the window of the building that faced onto the roadway was broken before the fire started. This was because the glass was found within the building rather than blown out onto the street. In his view, the fire started in the lunchroom and was deliberately lit. He said that the fire would have burned vigorously and would have been noticeable very quickly, probably within a minute or two. The Fire Service was alerted at 2:40am and arrived at the scene at 2:46 am. Mr O’Donoghue also stated that the alarm from the building was a silent one.
[7] Constable Sangster gave evidence that Mr Wellington and Mr Gray had run away when the police arrived. Mr Wellington was found hiding in a park behind a hedge by a police dog and Mr Gray was located at a residential address later in the morning. Constable Sangster was not asked to describe the clothing worn by the men. Another police officer, Detective Anderson, also gave evidence. He did not describe what Mr Wellington was wearing when apprehended in the park but said that the clothing of both appellants was sent to ESR for testing.
[8] The ESR report was produced. This stated that any person standing within a two-metre radius of a breaking window may have small fragments of glass showered into the outer clothing worn. Depending on the type of clothing, the fragments could be retained for a number of hours. No particles of glass from the damaged building were found in the clothing of Mr Wellington. The ESR report said in this regard:

The pants, sweatshirt and sneakers of Mr WELLINGTON were examined for glass fragments of freshly broken appearance. Two fragments of glass were found in the soles of the sneakers. This glass was different to the glass samples from the Huntly Energy Efficiency Trust. Therefore these fragments of glass cannot be from the broken windows at the Huntly Energy Efficiency Trust.
In my opinion, the finding of no fragments of glass that could be from the broken windows at the Huntly Energy Efficiency Trust, supports the proposition that the clothing from Mr WELLINGTON was not near the breaking windows.
I have chosen this term from the following scale; inconclusive, slightly supports, supports, strongly supports, very strongly supports and conclusive.

[9] As to Mr Gray, the report said:

The sweatshirt, two t-shirts, pants and shoes of Mr GRAY were examined for glass fragments of freshly broken appearance. One fragment of glass was found in the pockets of the sweatshirt, one fragment was found on one of the t-shirts and three fragments were found on the pants. All but one of these fragments of glass were different to the glass samples from the Huntly Energy Efficiency Trust. Therefore these fragments of glass cannot be from the broken windows at the Huntly Energy Efficiency Trust. One fragment of glass from the pants had the same refractive index as one of the four different sources of glass from the Huntly Energy Efficiency Trust. Therefore, this fragment of glass could have come from one of the broken windows at the Huntly Energy Efficiency Trust. However, other sources of glass are possible. New Zealand surveys show that less than 3% of building windows, less than 4% of vehicle windows and less than 4% of container glass would have the same refractive index as this fragment of glass.
In my opinion, the finding of one fragment of glass on the clothing of Mr Gray that could have come from the broken window neither supports nor refutes the suggestion that he was close to the breaking glass window. In my opinion the glass evidence relating to Mr GRAY is inconclusive.

[10] There were two video interviews conducted of Mr Gray, one on 28 November 2003 and one on 17 December 2003. In these interviews Mr Gray stated that Mr Wellington kicked in the window of the building and lit the fire. In his first interview, he acknowledged that he was about 20 metres from Mr Wellington when the fire was lit but denied taking part. In his second interview, he said he was further away when the fire was lit. Mr Gray claimed, in his first interview, that he tried to stop Mr Wellington and then attempted to put out the fire with a sweatshirt. That sweatshirt was not ever found and, in his second interview, Mr Gray said he had not gone back to the fire site but had gone straight off leaving Mr Wellington behind.
[11] In his interview, Mr Wellington denied any knowledge of the origins of the fire.

The parties’ submissions

Mr Wellington

[12] Mr Burroughs, for Mr Wellington, submitted that the jury’s verdict should be set aside on the ground that it was unreasonable or that it could not be supported having regard to the evidence. Mr Burroughs pointed out that there was no evidence before the jury from the scene witnesses of Mr Wellington breaking the window or setting fire to the building. The fire brigade arrived about five minutes after the fire was lit, but Ms Wilson and Ms Bristowe stated that Mr Wellington and Mr Gray were back up at the taxi stand hotel area for about 20 minutes before they heard the sirens. Further, the ESR report specifically excluded Mr Wellington from being within a two-metre area of the breaking glass. In Mr Burroughs’ submission, a jury acting reasonably therefore must have entertained a reasonable doubt as to Mr Wellington’s guilt.
[13] Mr Burroughs further submitted that the comments by the Crown solicitor and trial Judge that Mr Wellington may have changed his clothes between the time of offending and the time of arrest constituted a miscarriage of justice under s 385(1)(c), as there was no evidential foundation to support this proposition. The ESR report stated that no relevant glass fragments were found in the clothes surrendered by Mr Wellington upon arrest. The Crown led evidence from Ms Bristowe and Ms Wilson concerning what Mr Wellington was wearing while in the taxi stand area, but these witnesses were not asked whether he had changed his clothes when they observed his arrest across the river. Nor were the police officers questioned on what Mr Wellington was wearing at the time of arrest. Further, it was never put to Mr Wellington that he had changed his clothes before being arrested.
[14] After the jury retired, Mr Wellington’s counsel advised the Judge that there was no evidence to support the submission that Mr Wellington may have changed clothes. The Judge advised counsel that he considered that it was a proper inference to be drawn from the evidence.

Mr Gray

[15] Mr Gray applies for an extension of time as his appeal was filed 36 days out of time. Mr Matenga, for Mr Gray, accepted that Mr Gray must show substantial reasons in order to be granted an extension of time. He submitted that relevant factors are the strength of the appeal, the length of delay, the reason for the delay, and the absence of prejudice to the Crown (R v Jeffries [1949] NZLR 595 and R v Knight [1998] 1 NZLR 583).
[16] Mr Matenga submitted that the appeal is based on solid ground and that Mr Gray should be afforded an opportunity for his appeal to be heard. The reasons for the delay in filing the appeal were that Mr Gray received the Notice of Appeal at a late stage when the appeal period was almost expired. He required assistance filling in the appeal notice due to his limited literacy skills and he either did not understand or was not aware of the time period in which he was required to file the Notice of Appeal. In Mr Matenga’s submission, the Crown will not suffer prejudice if the Court grants the extension of time.
[17] We note that Mr Gray had also earlier applied for leave to call two witnesses, Mr Tane Kaha and Ms Jenna Muru, but this application was withdrawn.
[18] On the substantive appeal, Mr Matenga also submitted that the jury’s verdict should be set aside as it is unreasonable and cannot be supported having regard to the evidence. Mr Matenga submitted that the main problem with the evidence was over the timing. If the fire service arrived at 2:46am, then Mr Gray and Mr Wellington would have been back at the taxi stand as early as 2:16am. Given the evidence of the fire safety officer, the fire must have been lit when Mr Gray and Mr Wellington had returned from the building. This leaves open the possibility that someone else may have lit the fire. Ms Wilson accepted that there were other people on the street and Ms Bristowe accepted that she would not have taken notice of other people on the walk bridge. Further, the ESR report does not support the proposition that Mr Gray was near the window when it was smashed.
[19] Mr Matenga accepted that, to succeed under s 385(1)(a), Mr Gray must satisfy the Court that a jury acting reasonably must have entertained a reasonable doubt as to his guilt. In his submission, the Court must set the guilty verdict aside if the evidence displays inadequacies or lacks probative force in such a way as to lead the Court to conclude that there is a significant possibility that an innocent person has been convicted (R v H CA 440/97 25 February 1998). In Mr Matenga’s submission, given the paucity of evidence, the jury must have disregarded the appropriate lies direction given by the learned Judge. The jury must have concluded that Mr Gray lied and convicted him merely because they were suspicious. Accordingly, Mr Matenga submitted that the appropriate remedy is to allow the appeal and quash Mr Gray’s conviction.

Crown submissions

[20] Mr Davies, for the Crown, submitted that the verdicts were open to the jury having regard to the evidence. He pointed out that the submissions now advanced in support of the appeal are essentially the same matters relied upon in an earlier s 347 application made to (and rejected by) the trial Judge. Mr Davies submitted that it was for the jury to determine matters of weight and to draw such inferences that were open to it in the context of a circumstantial case. Based on the evidence, no improper reasoning was demonstrated and no miscarriage of justice occurred.
[21] In response to Mr Wellington’s and Mr Gray’s submissions that the timings given in evidence left open the possibility that someone else may have lit the fire, Mr Davies submitted that it was for the jury to determine whether that possibility was reasonable in the context of all the evidence.
[22] Mr Davies pointed out that Mr Gray admitted in interviews with the police that he was present at the scene when Mr Wellington lit the fire. This is difficult to reconcile with his submission relating to timing.
[23] Mr Davies submitted that the witnesses were giving evidence about an event that had occurred almost one year prior. Despite the timing argument, the evidence clearly put Mr Wellington and Mr Gray at the scene within the necessary time frame. Taken together with the evidence of the men being seen with lighted papers, Mr Gray’s admitted presence when the fires were lit and their reactions following the incident and upon arrest, Mr Davies submitted that there was sufficient evidence for the jury properly to infer guilt.
[24] In relation to Mr Wellington’s submission that there was a miscarriage of justice due to the Crown suggesting that he may have changed his clothes later in the evening, Mr Davies noted that this suggestion did not form a major plank of the Crown case. Rather, it was in the nature of a possible explanation for the absence of probative evidence. Mr Davies pointed out that this matter could not have been put to Mr Wellington, as he elected not to give evidence at the trial. He submitted that the Judge’s response, namely that it was an available inference to be drawn from the evidence, was entirely proper. Mr Wellington cannot object to the Crown presenting a "theory" to the jury (which was both foreseeable and entirely consistent with its case) to provide an explanation for the absence of glass on the clothing: R v Watson CA384 & 509/99 8 May 2000 at [41]-[45].
[25] Mr Davies submitted that the jury was properly directed and returned verdicts which were open on the evidence. The weight given to different aspects of the Crown case and to the various explanations put forward by the defence were entirely matters for the jury. In Mr Davies’ submission, given the evidence, there is no reasoning process visible which could be said to be manifestly illogical or unreasonable. Therefore, no grounds for a miscarriage of justice have been made out.

Discussion

[26] We turn first to Mr Gray’s application for an extension of time to file his appeal. We note too that, although Mr Wellington does not explicitly seek leave to appeal out of time, strictly this is required as his appeal was filed one day out of time. The Crown does not oppose extensions of time being granted for the filing of the appeals since Mr Wellington’s appeal was only one day late and adequate excuse for the late filing by Mr Gray has been furnished, the applications for an extension of time are granted.
[27] Turning now to the substantive appeals, we remark that the threshold for succeeding on an argument that the jury’s verdict is unreasonable or cannot be supported on the evidence is a high one. In R v Ramage [1985] 1 NZLR 392 at 393 this Court held that the statutory test will be satisfied only if the Court is of the opinion that a properly directed jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It would not be enough that this Court disagreed with the verdict of the jury.
[28] There is no complaint about the Judge’s summing up. The jury was thus properly directed. The question, therefore, is whether there was evidence upon which a jury could find the appellants guilty. In our view it is clear that there was such evidence. As the Crown pointed out, there was the evidence of the men being seen by the building beside lighted paper around the necessary time frame, there was the reaction of both at the time of their arrest and, in Mr Gray’s case, his admissions as to his presence at the time the fire was lit. Neither appellant gave evidence. The inferences to be drawn from the evidence and the weight to be attached to the various pieces of evidence were matters for the jury. In our view, on the basis of the evidence, the jury was entitled to conclude (as it obviously did) that, in the circumstances, the involvement of an (unknown and unseen) third party in lighting the fire, just after Mr Wellington and Mr Gray had been seen in front of the building beside lighted papers, was not a reasonable possibility.
[29] As to Mr Burrough’s complaint about the Crown submission that Mr Wellington may have changed his clothes, we are inclined to agree that it was an exceedingly unlikely scenario, given the short timeframe before his arrest. This unlikelihood would, however, undoubtedly have been obvious to the jury. We note, also, that the absence of glass fragments does not rule Mr Wellington out as being involved in the offending, although it made him less likely actually to have broken the window himself.
[30] More importantly, however, it appears from the summing up that the Crown submission on the change of clothes related to Mr Gray and not to Mr Wellington. There was a clear evidential foundation for the submission in Mr Gray’s case, given the longer time that elapsed before arrest, the place of his arrest and the issue of the sweatshirt he had allegedly used to try and put out the fire. The relevant portion of the summing up is as follows:

[40] Turning then to the defence case, first of all Mr Gray, the, I am sorry, I am just, one other thing I want to say, talking about Gray, not from a defence perspective and again being careful to do that analytical exercise, saying, we listen and absorb what Gray said in the first interview, relevant to him, not to Wellington. The Crown say, if Gray was not there, if he was not involved, how come he knew or seemed to know the kind of details that we now know on the scientific evidence are correct. Where the fire started, what room, by the window, that there was a computer there, that the window was broken. As Ms Clark put it, Gray seems to know too much not to have been involved either as the perpetrator or as a party and as I mentioned earlier, the fact that he apparently lied and gave shifting explanations calls into question the validity of his claim of innocence.
[41] As far as the scientific evidence is concerned of the ESR, the Crown position is, we do not rely on that, it is there to flesh the whole thing out, you are entitled to know it, you should know about it but it is of no particular probative value [in] terms of where the Crown is coming from.
[42] For example, it was pointed out, we do not know if the clothes tested were in fact the clothes worn at the time. We do not know how close either or both of them were, i.e. to fit in which the two metre parameter and harking back to what I said about you choose how much you accept of the scientific evidence, note the qualifications in the cautious scientific language, the use of the word "may", absence of glass fragments may, someone within two metres may get glass fragments in them and as to the teapot found there, that is not something the Crown seek or say has any relevance whatsoever, it is just an irrelevant aside.
[43] Defence Position. Mr Burroughs for Mr Wellington made a number of points. Reminded you and I am sorry if I keep repeating this bit but it is important. Do not use Gray’s evidence against my client.

[31] As can be seen, the discussion of the Crown submissions relating to the glass is in the context of a discussion of the Crown case against Mr Gray. It precedes the discussion of the defence cases. The Judge then went on to discuss first the case for Mr Wellington and then for Mr Gray. During the discussion of Mr Wellington’s case, the ESR evidence is mentioned as suggesting that neither man was near the breaking window but any possible change of clothes was not mentioned. In our view, Mr Wellington has no cause for complaint on this ground.

Result

[32] An extension of time to appeal is granted to both Mr Wellington and Mr Gray but, for the reasons given above, both appeals against conviction are dismissed. Mr Gray’s appeal against his sentence is not pursued and is accordingly dismissed.

Solicitors:
Kerry Burroughs, Hamilton for Appellant Wellington
Foster Matenga Milroy, Hamilton for Appellant Gray
Crown Law Office, Wellington

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[2]	In the early hours of 28 November 2003, a Huntly building owned by Transit New Zealand was extensively damaged by fire. The Crown case at trial was that both Mr Wellington and Mr Gray were involved in smashing one of the building’s windows and setting the building on fire. It was alleged that the pair then left the scene and returned some time later to watch the Fire Service battling the fire.
[3]	The Crown called two witnesses, Ms Bristowe and Ms Wilson, who had been in the Huntly Hotel carpark at the requisite time. They gave evidence of seeing both Mr Wellington and Mr Gray in the vicinity of the damaged building (which was within sight of the carpark) on the night in question. Identity was not challenged.
[4]	Ms Wilson’s evidence was that Mr Wellington and Mr Gray were in the vicinity of the building for 10-20 minutes. She had seen Mr Wellington and Mr Gray right outside the building near some burning papers but she did not know who had lit them. Later she heard a sound like smashing bottles but did not see what was being smashed. She then saw Mr Wellington and Mr Gray jogging back to the taxi stand near the hotel. Approximately 20-30 minutes later she heard the siren, and not long after that she saw the fire engines. She described Mr Wellington as wearing a dark hoodie and dark trousers.
[5]	Ms Bristowe stated that Mr Wellington and Mr Gray were at the building for half an hour "fooling around" before they ran quite fast back in her direction to the taxi stand a couple of metres away. She then heard the town siren to summon the fire brigade 5-10 minutes later. She said that Mr Wellington and Mr Gray had been at the taxi stand for about 20 minutes before the fire engines arrived. Ms Bristowe described the clothes worn by Mr Wellington as being a "dark hoodie and dark pants". She did not see anyone kick in the window and did not see any fire. She also did not see any lighted papers.
[6]	Mr O’Donoghue, a Fire Safety Officer, stated that, in his opinion, the window of the building that faced onto the roadway was broken before the fire started. This was because the glass was found within the building rather than blown out onto the street. In his view, the fire started in the lunchroom and was deliberately lit. He said that the fire would have burned vigorously and would have been noticeable very quickly, probably within a minute or two. The Fire Service was alerted at 2:40am and arrived at the scene at 2:46 am. Mr O’Donoghue also stated that the alarm from the building was a silent one.
[7]	Constable Sangster gave evidence that Mr Wellington and Mr Gray had run away when the police arrived. Mr Wellington was found hiding in a park behind a hedge by a police dog and Mr Gray was located at a residential address later in the morning. Constable Sangster was not asked to describe the clothing worn by the men. Another police officer, Detective Anderson, also gave evidence. He did not describe what Mr Wellington was wearing when apprehended in the park but said that the clothing of both appellants was sent to ESR for testing.
[8]	The ESR report was produced. This stated that any person standing within a two-metre radius of a breaking window may have small fragments of glass showered into the outer clothing worn. Depending on the type of clothing, the fragments could be retained for a number of hours. No particles of glass from the damaged building were found in the clothing of Mr Wellington. The ESR report said in this regard:

[12]	Mr Burroughs, for Mr Wellington, submitted that the jury’s verdict should be set aside on the ground that it was unreasonable or that it could not be supported having regard to the evidence. Mr Burroughs pointed out that there was no evidence before the jury from the scene witnesses of Mr Wellington breaking the window or setting fire to the building. The fire brigade arrived about five minutes after the fire was lit, but Ms Wilson and Ms Bristowe stated that Mr Wellington and Mr Gray were back up at the taxi stand hotel area for about 20 minutes before they heard the sirens. Further, the ESR report specifically excluded Mr Wellington from being within a two-metre area of the breaking glass. In Mr Burroughs’ submission, a jury acting reasonably therefore must have entertained a reasonable doubt as to Mr Wellington’s guilt.
[13]	Mr Burroughs further submitted that the comments by the Crown solicitor and trial Judge that Mr Wellington may have changed his clothes between the time of offending and the time of arrest constituted a miscarriage of justice under s 385(1)(c), as there was no evidential foundation to support this proposition. The ESR report stated that no relevant glass fragments were found in the clothes surrendered by Mr Wellington upon arrest. The Crown led evidence from Ms Bristowe and Ms Wilson concerning what Mr Wellington was wearing while in the taxi stand area, but these witnesses were not asked whether he had changed his clothes when they observed his arrest across the river. Nor were the police officers questioned on what Mr Wellington was wearing at the time of arrest. Further, it was never put to Mr Wellington that he had changed his clothes before being arrested.
[14]	After the jury retired, Mr Wellington’s counsel advised the Judge that there was no evidence to support the submission that Mr Wellington may have changed clothes. The Judge advised counsel that he considered that it was a proper inference to be drawn from the evidence.

[15]	Mr Gray applies for an extension of time as his appeal was filed 36 days out of time. Mr Matenga, for Mr Gray, accepted that Mr Gray must show substantial reasons in order to be granted an extension of time. He submitted that relevant factors are the strength of the appeal, the length of delay, the reason for the delay, and the absence of prejudice to the Crown (R v Jeffries [1949] NZLR 595 and R v Knight [1998] 1 NZLR 583).
[16]	Mr Matenga submitted that the appeal is based on solid ground and that Mr Gray should be afforded an opportunity for his appeal to be heard. The reasons for the delay in filing the appeal were that Mr Gray received the Notice of Appeal at a late stage when the appeal period was almost expired. He required assistance filling in the appeal notice due to his limited literacy skills and he either did not understand or was not aware of the time period in which he was required to file the Notice of Appeal. In Mr Matenga’s submission, the Crown will not suffer prejudice if the Court grants the extension of time.
[17]	We note that Mr Gray had also earlier applied for leave to call two witnesses, Mr Tane Kaha and Ms Jenna Muru, but this application was withdrawn.
[18]	On the substantive appeal, Mr Matenga also submitted that the jury’s verdict should be set aside as it is unreasonable and cannot be supported having regard to the evidence. Mr Matenga submitted that the main problem with the evidence was over the timing. If the fire service arrived at 2:46am, then Mr Gray and Mr Wellington would have been back at the taxi stand as early as 2:16am. Given the evidence of the fire safety officer, the fire must have been lit when Mr Gray and Mr Wellington had returned from the building. This leaves open the possibility that someone else may have lit the fire. Ms Wilson accepted that there were other people on the street and Ms Bristowe accepted that she would not have taken notice of other people on the walk bridge. Further, the ESR report does not support the proposition that Mr Gray was near the window when it was smashed.
[19]	Mr Matenga accepted that, to succeed under s 385(1)(a), Mr Gray must satisfy the Court that a jury acting reasonably must have entertained a reasonable doubt as to his guilt. In his submission, the Court must set the guilty verdict aside if the evidence displays inadequacies or lacks probative force in such a way as to lead the Court to conclude that there is a significant possibility that an innocent person has been convicted (R v H CA 440/97 25 February 1998). In Mr Matenga’s submission, given the paucity of evidence, the jury must have disregarded the appropriate lies direction given by the learned Judge. The jury must have concluded that Mr Gray lied and convicted him merely because they were suspicious. Accordingly, Mr Matenga submitted that the appropriate remedy is to allow the appeal and quash Mr Gray’s conviction.

[20]	Mr Davies, for the Crown, submitted that the verdicts were open to the jury having regard to the evidence. He pointed out that the submissions now advanced in support of the appeal are essentially the same matters relied upon in an earlier s 347 application made to (and rejected by) the trial Judge. Mr Davies submitted that it was for the jury to determine matters of weight and to draw such inferences that were open to it in the context of a circumstantial case. Based on the evidence, no improper reasoning was demonstrated and no miscarriage of justice occurred.
[21]	In response to Mr Wellington’s and Mr Gray’s submissions that the timings given in evidence left open the possibility that someone else may have lit the fire, Mr Davies submitted that it was for the jury to determine whether that possibility was reasonable in the context of all the evidence.
[22]	Mr Davies pointed out that Mr Gray admitted in interviews with the police that he was present at the scene when Mr Wellington lit the fire. This is difficult to reconcile with his submission relating to timing.
[23]	Mr Davies submitted that the witnesses were giving evidence about an event that had occurred almost one year prior. Despite the timing argument, the evidence clearly put Mr Wellington and Mr Gray at the scene within the necessary time frame. Taken together with the evidence of the men being seen with lighted papers, Mr Gray’s admitted presence when the fires were lit and their reactions following the incident and upon arrest, Mr Davies submitted that there was sufficient evidence for the jury properly to infer guilt.
[24]	In relation to Mr Wellington’s submission that there was a miscarriage of justice due to the Crown suggesting that he may have changed his clothes later in the evening, Mr Davies noted that this suggestion did not form a major plank of the Crown case. Rather, it was in the nature of a possible explanation for the absence of probative evidence. Mr Davies pointed out that this matter could not have been put to Mr Wellington, as he elected not to give evidence at the trial. He submitted that the Judge’s response, namely that it was an available inference to be drawn from the evidence, was entirely proper. Mr Wellington cannot object to the Crown presenting a "theory" to the jury (which was both foreseeable and entirely consistent with its case) to provide an explanation for the absence of glass on the clothing: R v Watson CA384 & 509/99 8 May 2000 at [41]-[45].
[25]	Mr Davies submitted that the jury was properly directed and returned verdicts which were open on the evidence. The weight given to different aspects of the Crown case and to the various explanations put forward by the defence were entirely matters for the jury. In Mr Davies’ submission, given the evidence, there is no reasoning process visible which could be said to be manifestly illogical or unreasonable. Therefore, no grounds for a miscarriage of justice have been made out.

[26]	We turn first to Mr Gray’s application for an extension of time to file his appeal. We note too that, although Mr Wellington does not explicitly seek leave to appeal out of time, strictly this is required as his appeal was filed one day out of time. The Crown does not oppose extensions of time being granted for the filing of the appeals since Mr Wellington’s appeal was only one day late and adequate excuse for the late filing by Mr Gray has been furnished, the applications for an extension of time are granted.
[27]	Turning now to the substantive appeals, we remark that the threshold for succeeding on an argument that the jury’s verdict is unreasonable or cannot be supported on the evidence is a high one. In R v Ramage [1985] 1 NZLR 392 at 393 this Court held that the statutory test will be satisfied only if the Court is of the opinion that a properly directed jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It would not be enough that this Court disagreed with the verdict of the jury.
[28]	There is no complaint about the Judge’s summing up. The jury was thus properly directed. The question, therefore, is whether there was evidence upon which a jury could find the appellants guilty. In our view it is clear that there was such evidence. As the Crown pointed out, there was the evidence of the men being seen by the building beside lighted paper around the necessary time frame, there was the reaction of both at the time of their arrest and, in Mr Gray’s case, his admissions as to his presence at the time the fire was lit. Neither appellant gave evidence. The inferences to be drawn from the evidence and the weight to be attached to the various pieces of evidence were matters for the jury. In our view, on the basis of the evidence, the jury was entitled to conclude (as it obviously did) that, in the circumstances, the involvement of an (unknown and unseen) third party in lighting the fire, just after Mr Wellington and Mr Gray had been seen in front of the building beside lighted papers, was not a reasonable possibility.
[29]	As to Mr Burrough’s complaint about the Crown submission that Mr Wellington may have changed his clothes, we are inclined to agree that it was an exceedingly unlikely scenario, given the short timeframe before his arrest. This unlikelihood would, however, undoubtedly have been obvious to the jury. We note, also, that the absence of glass fragments does not rule Mr Wellington out as being involved in the offending, although it made him less likely actually to have broken the window himself.
[30]	More importantly, however, it appears from the summing up that the Crown submission on the change of clothes related to Mr Gray and not to Mr Wellington. There was a clear evidential foundation for the submission in Mr Gray’s case, given the longer time that elapsed before arrest, the place of his arrest and the issue of the sweatshirt he had allegedly used to try and put out the fire. The relevant portion of the summing up is as follows: