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NSW Crest

Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:
CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134
Hearing dates:
20 March 2014
Decision date:
24 April 2014
Before:
Beazley P at [1], Barrett JA at [2], Emmett JA at [71]
Decision:

1. Grant leave to appeal.

2. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days.

3. Dismiss the appeal.

4. No order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CRIMINAL LAW - particular offences - property offences - wilful or reckless damage to or destruction of property by fire or explosives (Crimes Act 1900, s 195(1)(b)) - mens rea - where accused applied flame to threads on the cover of a couch in an unoccupied house and the house was destroyed by fire - conviction on charge of recklessly destroying the house by fire - content of the mental element of recklessness - whether the required foresight was of destruction of the house or of damage to or destruction of any property
Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW)
Criminal Procedure Act 1986 (NSW)
Inclosed Lands Protection Act 1901 (NSW)
Supreme Court Act 1970 (NSW)
Young Offenders Act 1997 (NSW)
Cases Cited:
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119
Chen v R [2013] NSWCCA 116
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
DPP v Adam James Lee [2006] NSWSC 270
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Johnson v Miller [1937] HCA 77; 59 CLR 467
Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531
LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016
R v Coleman (1990) 19 NSWLR 467
R v VHP (Court of Appeal (NSW), 7 July 1997, unrep)
Smith v Moody [1903] 1 KB 56
Wainohu v New South Wales [2011] HCA 24; 243 CLR 181
Category:
Principal judgment
Parties:
CB (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
I D Bourke (Applicant)
A M Mitchelmore (Respondent)
Solicitors:
Alan Robinson (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
File Number(s):
2013/201669
Decision under appeal
Citation:
[2013] NSWSC 618
Date of Decision:
2013-05-23 00:00:00
Before:
Adamson J
File Number(s):
2012/373246

Judgment

1BEAZLEY P: I agree with the reasons of Barrett JA and his Honour's proposed orders and with the additional reasons of Emmett JA.

2BARRETT JA: These proceedings arise from a decision of a judge of the Common Law Division (Adamson J) who, on 23 May 2013, dismissed an appeal from a decision of Blewitt LCM, sitting in the Children's Court of New South Wales at Nowra. The magistrate had held that the present applicant was guilty of an offence under s 195(1)(b) of the Crimes Act 1900 (NSW). Section 195(1) is in these terms:

"A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
(a) to imprisonment for 5 years, or
(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years."

3The orders made by Adamson J were made pursuant to s 55 of the Crimes (Appeal and Review) Act 2001 (NSW). Section 55 is within Part 5 of the Act. Appeals to this Court from orders of the Supreme Court made on appeal under Part 5 require leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(h).

4The applicant's application for leave to appeal and the appeal itself were heard concurrently. In addition and for reasons to be mentioned presently, an application under s 69 of the Supreme Court Act in respect of the Children's Court decision was made orally before this Court.

The facts

5The facts as found by the magistrate came very substantially from admissions made by the applicant when interviewed by police in the presence of his parents.

6At about 4.00pm on 29 March 2012, the applicant, who was then 14 years old, went with a friend to an unoccupied house at Sanctuary Point. The house was an investment property or holiday house that was in the process of being renovated by its owner at weekends. Some of the windows were boarded up but one could be opened from the outside. The applicant and his companion entered the house through that window without permission.

7Once inside, they went to an upper storey where the applicant smoked a cigarette. While sitting on a couch after his companion had gone downstairs, the applicant played with the companion's cigarette lighter and was "singeing the couch" - which, it appears, involved applying the flame of the lighter to either a fringe forming part of the couch's cover or threads where the fabric of the cover had frayed or been torn. The couch cushion contained foam which caught fire. The applicant attempted to extinguish the fire and called to his companion for help. They were unable to put the fire out and were forced to leave the premises when the smoke became overpowering. The house was destroyed.

8Police apprehended the applicant and his companion later the same day. They were interviewed separately. The applicant gave a full account of events. Police accepted that he was truthful and remorseful.

The Children's Court proceedings

9The applicant (as defendant) appeared before the Children's Court on 20 September 2012 in response to a court attendance notice charging two offences. The first was an offence under the Inclosed Lands Protection Act 1901 (NSW). The second was expressed in these terms:

"Crimes Act 1900, Section 195(1)(b)
Intentionally or recklessly damage property by fire/explosive between 4.00 pm and 4.15 pm on 29/03/2012 at Sanctuary Point. did intentionally or recklessly destroy by means of fire certain property, to wit, A house at [address] Sanctuary Point the property of [name]."

10The applicant pleaded guilty to the first charge and not guilty to the second. There were two issues: first, an issue of doli incapax (and the question whether the prosecution had proved beyond reasonable doubt that the applicant knew that what he was doing was wrong); and, second, whether the applicant recklessly destroyed the house. The magistrate found against the applicant on both issues. Only the second is of present relevance.

11The applicant's solicitor submitted before the Children's Court that the prosecution must prove beyond reasonable doubt, as a necessary element of the offence, that the accused foresaw the possibility that the house would be destroyed by fire. Reliance was placed on the decision of the Court of Criminal Appeal in Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119. That case was concerned with s 35(2) of the Crimes Act which, at the relevant time, provided that a person who recklessly caused grievous bodily harm was guilty of an offence. Beazley JA (as her Honour then was) held (at [82]), with the concurrence of James J, that a necessary element of the offence was that the accused should have foreseen that his conduct would cause grievous bodily harm and not just "some physical injury". The applicant relied on this analysis in support of the proposition that proof of a charge that encompasses a particular consequence entails proof of that very consequence and not just some general class of consequences of which the particular consequence forms part.

12The prosecution submitted that it had only to prove that the accused foresaw that the particular kind of harm that occurred may occur and not the extent to which that harm occurred. In other words, the accused only had to foresee that his actions may lead to some property being destroyed by fire but not that his actions may lead to the destruction of the house.

13No authority was given for the proposition that the reasoning in Blackwell v R applied beyond the particular provision with which that case was concerned, although the view that it did received some support from the Criminal Trial Courts Bench Book. The magistrate preferred the submissions of the prosecution and held:

"In my view there is no requirement in s 195 of the Crimes Act, nor in the definition contained in the Act, that it is necessary for the prosecution to prove beyond a reasonable doubt that the accused foresaw the possibility of the house burning down. That being the case, the test is, as it has existed since Coleman [(1990) 19 NSWLR 467], that the accused had the realisation that the particular kind of harm in fact occasioned might occur, but not necessarily the degree to which that damage occurred.

So I am satisfied having regard to the admissions contained in the record of interview that the act of setting fire to the lounge was a deliberate act, it was not an accident. In my view the act of setting fire to that lounge and its subsequent spreading was a reckless act. ACCORDINGLY I FIND THAT THE OFFENCE HAS BEEN PROVEN BEYOND REASONABLE DOUBT."

The appeal to the Supreme Court

14Upon his appeal to the Supreme Court, the applicant sought an order that the finding of guilt be set aside pursuant to s 55 of the Crimes (Appeal and Review) Act.

15There were six grounds of appeal:

"(1) The Magistrate misconceived the elements of the offence under s 195 Crimes Act 1900;
(2) The Magistrate failed to give adequate reasons for his conclusion that the offence was proved beyond reasonable doubt;
(3) The Magistrate erred in finding that the [appellant] acted deliberately in setting fire to a lounge inside the premises;
(4) The Magistrate failed to give adequate reasons for his finding that the [appellant] acted deliberately in setting fire to a lounge inside the premises;
(5) The Magistrate erred in conflating the question of prima facie case with proof beyond reasonable doubt;
(6) The Magistrate erred in finding the offence proved beyond reasonable doubt."

16Adamson J held that an appeal lay of right for grounds 1, 2, 4 and 5 under s 52 of the Crimes (Appeal and Review) Act, and granted leave to appeal in respect of grounds 3 and 6 pursuant s 53. Her Honour also stated, albeit obliquely, that s 55 of the Act governed how a court may determine an appeal against a conviction. Section 55 is relevantly as follows:

"Determination of appeals:
(1) The Supreme Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or
(c) by dismissing the appeal."

17In relation to the grounds of appeal, her Honour found that the magistrate properly formulated the elements of the offence under s 195 of the Crimes Act (Ground 1); gave adequate reasons for his conclusion that the offence was proved beyond reasonable doubt (Ground 2); gave adequate reasons for his finding that the appellant deliberately set fire to the couch (Grounds 3 and 4); and correctly found that the offence was proved beyond reasonable doubt (Grounds 5 and 6). The primary judge ordered that the appeal be dismissed.

The appeal to this Court

18The applicant seeks to appeal on the following grounds:

1. That the primary judge erred in finding that the prosecution only had to prove beyond reasonable doubt that the requisite mental element for the offence with which the applicant was charged under s 195 of the Crimes Act was that he foresaw the possibility that his actions might lead to property being destroyed, rather than that he had the foresight that his actions might lead to the house being destroyed;

2. That the primary judge erred in finding that the magistrate's reasons were adequate for his conclusion that the offence was made out; and,

3. That the primary judge erred in finding that the trial judge did not conflate the tests for whether there is a prima facie case and the test for whether the prosecution has proved its case.

The judge's decision on the mental element (Ground 1)

19The first ground of appeal concerns the mental element of the offence charged.

20The applicant submitted before the primary judge that the magistrate was in error in deciding that it was sufficient that the accused person realise that the particular kind of harm in fact occasioned might occur, but not necessarily the degree to which that damage occurred. He contended that the prosecution had to prove that the accused person foresaw the possibility that his actions might lead to the destruction alleged - in the instant case, that applying a flame to the threads on the cover of the couch might lead to the destruction of the house building. Her Honour quoted the following passage from the written submissions:

"In this case, the 'particular kind of harm' alleged in the charge was the destruction of the house. Notwithstanding this, the Magistrate found that it was not necessary for the prosecution to prove...that the accused foresaw the possibility of the house burning down. This approach, it is submitted, involved an error of law. The Magistrate applied a wrong test." [Emphasis in original]

21The submission of the respondent before the primary judge was that the magistrate was correct to conclude that there was no requirement, either in s 195 of the Crimes Act or in s 4A (which says that the element of recklessness, where required, may also be established by proof of intention or knowledge), that the prosecution prove beyond reasonable doubt that the plaintiff foresaw the possibility of the house burning down. It was sufficient for the prosecution to prove that the plaintiff foresaw the possibility of some destruction of property. This was because the prosecution had to prove the charge, but not the particulars of the charge; and it was not essential for proof of the charge that foresight of the possibility of the house burning down be proved, since the charge would be made out by proof of foresight of the possibility of damage to the couch.

22As the primary judge correctly observed, the question of the mental element required for an offence under s 195(1)(b) is a matter of statutory construction. Her Honour then turned to decided cases, noting the submission of counsel for the respondent that the magistrate's decision was consistent with Blackwell v R (above) and that R v Coleman (1990) 19 NSWLR 467 also needed to be considered. She then proceeded to "summarise the proposition for which each stands".

23Blackwell v R, her Honour said, had been decided by reference to a statutory provision concerning the meaning of "maliciously" since replaced which said that an act "done of malice, whether against an individual or any corporate body or number of individuals, . . . or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime". The trial judge had directed the jury on the mental element required for the alternative charge or malicious infliction of grievous bodily harm in the following terms:

"Now you will see I have defined maliciously at the bottom of the page for you. It means intending to cause some physical injury, that is, the Crown must satisfy you that at the time [the appellant] inflicted grievous bodily harm to [Mr Ward] he did so intending to cause some physical injury... At law in the context of this particular charge maliciously means doing an act intending to cause some physical injury and without lawful cause or excuse."

24Her Honour noted that, when the matter reached the Court of Criminal Appeal, there was a unanimous holding that, where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence; and, since the relevant consequence for the alternative offence was grievous bodily harm, the direction was erroneous since it referred only to "some physical injury". Because the offence involved "recklessly causing grievous bodily harm", the mental element required was foresight of the possibility of grievous bodily harm. This was made clear in the following parts of Beazley JA's judgment:

"[78] . . . Accordingly, in this case, the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward's face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted. . .
[82] . . . Relevantly for present purposes, the statute provides for an offence of "recklessly [causing] grievous bodily harm". There is no definitional construct within the terms of the provision which governs its meaning. There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean 'some physical injury'."

25Against that background, the primary judge said (at [27)]:

"When one applies the construction authorised by Blackwell to the proscription in s 195(1)(b) against reckless damage or destruction of property belonging to another, the foresight of the possibility caused by the recklessness must be, in my view, damage to, or destruction of property, since they are the consequences referred to in the statute."

26The primary judge then turned to R v Coleman (above), where the accused had been charged with malicious infliction of actual bodily harm with intent to have sexual intercourse. The issue for determination was whether it was sufficient that the accused recognise the possibility that injury might result, or whether it was necessary that the accused recognise the probability that actual bodily harm would result. The Court of Criminal Appeal held as follows in relation to the now superseded statutory provision concerning "maliciously" to which reference has been made:

"At the time of that decision [R v Crabbe (1985) 156 CLR 464], it was also generally accepted law in Australia that, in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted."

The offence charged

27Submissions in this Court paid attention to the construction of the description of the statutory offence charged in the court attendance notice. That description is set out at [9] above. It consists of two parts, as follows:

First part:

"Crimes Act 1900, Section 195(1)(b)

Intentionally or recklessly damage property by fire/explosive."

Second part:

"between 4.00 pm and 4.15 pm on 29/03/2012 at Sanctuary Point, did intentionally or recklessly destroy by means of fire certain property, to wit, A house at [address] Sanctuary Point the property of [name]."

28It was common ground before the primary judge that the charge was contained in the first part of the description and that the second part set out particulars of the offence charged. There was debate as to whether the element consisting of destruction of the house was an essential or an inessential fact or particular.

29There is, in my opinion, no need to determine that matter. The description in the court attendance notice was inelegantly composed. But the meaning and intention were clear. The first part, whatever its technical status, served a merely introductory purpose. It identified the statutory provision under which the charge was brought and gave a short label to it. It was the second part that served the indispensable purpose identified by Evatt J in Johnson v Miller [1937] HCA 77; 59 CLR 467 at 497-8:

"It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer."

30In this case, the accused was called upon to answer the second part of the description. He was not called upon to answer the proposition that he intentionally damaged the couch by fire or that he recklessly damaged furniture in some other room by fire. Nor had he to prepare himself to meet an allegation that he had damaged anything by explosives. All of those were possibilities comprehended by the first part of the description, read in conjunction with the section of the Act to which it referred; and that first part (which referred to damaging only) did not, in terms, comprehend what was put against the applicant in the second part, namely, that he destroyed something.

31Having regard to s 11 of the Criminal Procedure Act 1986 (NSW), the first part was "sufficient in law" as a description of the offence. That section is as follows:

"The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law."

32In Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted (at [26]) that it had been held in Smith v Moody [1903] 1 KB 56 that such a statutory provision did not dispense with the common law rule "that fair information and reasonable particularity as to the nature of the offence must be given in indictments" (per Lord Alverstone CJ at 60). The members of the High Court also noted that, in Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153, Jordan CJ doubted that earlier authorities such as Smith v Moody should be regarded as binding and was of the view that the object of the rule could be secured only by the requirement of particulars on the face of the information. The joint judgment continued (at [29]):

"Nevertheless, in Johnson v Miller, Dixon J appears to have applied the common law rule and to have held that a statutory provision like that made by s 11 of the Criminal Procedure Act 1986 'relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions'."

33The applicant, in deciding how to respond to the charge brought against him, was fully justified in regarding the first part of the description in the court attendance notice as relating "only to the nature of the offence" and the second part as stating the allegation to be met. He was therefore justified in thinking that the prosecution had discarded possibilities involving damage as distinct from destruction. With particular property identified in the second part of the description and the allegation in that part confined to destruction (as distinct from damage), the prosecution had to establish two things to the requisite standard: first, that the applicant destroyed the identified property (the house); and, second, that the destruction of that property by the applicant was accompanied by a relevant mental element (intention or recklessness). The case that the prosecution in fact pursued, as to the mental element, was a case of recklessness, not intention. There was no allegation that the applicant intentionally destroyed the house. The allegation was that he recklessly destroyed the house.

34The was discussion in the course of argument in this Court as to the meaning of:

"A house at [address] Sanctuary Point the property of [name]."

35A possibility canvassed is that this description included not only the building but also chattels within that building, so that the allegation was to be understood as involving destruction of the building and each and every thing within it. On that basis, the "house" included the couch and, arguably, the threads on the cover of the couch. I do not accept that construction. The description in the court attendance notice put the applicant on notice that he had to deal with the proposition that he had, with the relevant mental element, destroyed the particular "house", not some other item of property (potentially of trifling value) within the house or elsewhere. The reference was to the building and to destruction of the building.

Ground 1 - assessment

36The issue raised by the first ground of appeal is whether, with recklessness rather than intention identified as the relevant mental element, the prosecution had to prove that the applicant realised that, by his acting as he did, it was possible that the house would be destroyed or whether it was sufficient to prove that he realised the possibility that some property or other would be either destroyed or damaged.

37Numerous offences created by the Crimes Act have recklessness as an ingredient. In many cases, recklessness is an alternative to intention, in that an offence is committed if specified conduct is engaged in either intentionally or recklessly. This is the scheme adopted in Part 4AD (which includes s 195(1)) inserted by the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW). In such cases, recklessness is established by proof that the accused realised that the particular type of harm constituting the offence (but not necessarily harm of the severity of that in fact caused) may possibly be inflicted, yet the accused went ahead and acted. This formulation has been generally favoured in this State since R v Coleman (above).

38The primary judge's view, which corresponded with that of the magistrate, was that the necessary foresight in the case of a charge under s 195(1) involving recklessness rather than intention is that of "damage to, or destruction of, property, since they are the consequences referred to in the statute"; and that the only necessary finding in relation to the property the subject of the foresight is that, as specified in the statute, it be property "belonging to another".

39The contention of the applicant in this Court was that, leaving to one side as irrelevant any issue of intention, it was necessary for the prosecution to prove that the applicant had recklessly destroyed the house and that foresight of the possibility of destruction of the house itself comprised the element of the charged offence comprehended by the word "recklessly".

40As the primary judge recognised, the resolution of this matter involves the construction of the statute. The statutory offence is, in one sense, multi-faceted. As a matter of words, s 195(1) provides that an act capable of amounting to contravention occurs if a person destroys property or damages property. When the mental element is added, there are four proscriptions: intentionally destroying, recklessly destroying, intentionally damaging and recklessly damaging; and the number rises to eight in a s 195(1)(b) case, four involving fire and four involving explosives.

41The implicit premise is that a given course of conduct may cause either damage or destruction. The latter, obviously enough, is at the most serious point on a scale which, at its lower end, involves slight or trivial damage. Destruction and damage are not posited as distinct effects or results. Rather, each is an aspect of a single statutory specification, with destruction recognised as the absolute form of damage. The act relevant to the statutory offence is committed regardless of the point on the spectrum of seriousness occupied by the harm that that act actually causes. There is not an offence of damaging and an offence of destroying. The offence is one of causing harm to property to any degree from the slightest damage to destruction. It thus encompasses a single form of conduct of varying severity, not two forms of conduct (being, first, damage standing anywhere in the range from trivial to virtual destruction and, second, destruction as an absolute).

42That being so, the decision in Chen v R [2013] NSWCCA 116 is instructive as to the mental element of recklessness. The accused in that case was charged with an offence under s 35(3) of the Crimes Act:

"A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence."

43It was held that the reasoning in Blackwell v R was irrelevant to the issue of recklessness in relation to this offence. The offence is defined in terms of an act of wounding. A provision dealing with that act has regard to the inflicting of a wound of any degree of seriousness, from "a small cut" to "a gaping one", to quote Button J (at [51]). Grievous bodily harm, by contrast, consists of harm of a particular degree of seriousness. An act occasioning bodily harm falling short of that degree of seriousness is not comprehended by the offence of inflicting grievous bodily harm and, as was held in Blackwell v R, even when harm of that degree is inflicted, recklessness is not established if the consequence foreseen was harm of a lesser degree.

44Recklessness in relation to an offence involving a result of a particular quality requires foresight of a result of that quality, not some other result. If the result is wounding, the offence entailing recklessness is committed by a person who inflicts a gaping wound even if the person's foresight extended to a small cut only. Both the act and the foresight entail wounding. If the result is grievous bodily harm, the offence entailing recklessness is committed by a person who deprives the victim of both eyes even if the person's foresight extended to deprivation of only one. Both the act and the foresight involve grievous bodily harm, it being obvious that some instances of grievous bodily harm are more extreme and more serious than others, just as some wounds are more extreme and more serious than others.

45In the case of an offence under s 195(1) of the Crimes Act, the result that the accused's acts must produce in order to sustain conviction is harm to property at any point on the scale of seriousness from minor damage to destruction. The foresight that must be proved to establish recklessness is therefore foresight of harm to property to any degree from minor damage to destruction. If the result of the accused's acts is slight or moderate damage, recklessness will be established if the proved foresight was of destruction; and likewise if the result is destruction, recklessness will be established if the proved foresight was of slight or moderate damage.

46A charge under s 195(1) is necessarily framed in terms of particulars alleging damage to or destruction of specified property. But the necessary foresight, where recklessness is alleged, is not confined to foresight of damage to or destruction of that specific property. It is sufficient that the foresight be in relation to property more generally. Thus, someone who lights a fire foreseeing that a particular house might thereby be damaged or destroyed does not escape conviction because the wind changes and the fire destroys a motor vehicle parked in the adjacent street. A conviction in relation to the vehicle will be supported by the foresight of damage to or destruction of the house. Furthermore, the foresight need not comprehend any particular item of property. A person who, as an act of spite, throws a bomb into a factory building after all the workers have gone home has foresight of damage to or destruction of a large range of property within the building much of which may be unknown to the person. That foresight would be sufficient to support a finding of recklessness where the particulars of charge referred to destruction of, say, a particular machine in fact destroyed by the blast; and this would be so whether or not the perpetrator had foresight that that machine might be affected or even knew that such a machine was on the premises.

47The primary judge and the magistrate were correct in their conclusion that acts causing destruction of the house accompanied by foresight of harm to any property, whether damage or destruction, was sufficient; and that the prosecution was not required to prove foresight of destruction of the house alone.

The judge's decision on adequacy of reasons (Ground 2)

48As the primary judge recognised (at [50]), the giving of reasons is central to the judicial function: Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[58] per French CJ and Kiefel J. Her Honour quoted a passage in the judgment of Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (at 442):

"A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost ... One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise ..."

49Reference was also made to the need to make allowance for the pressures under which magistrates are required to make decisions and also for judgments which are given ex tempore: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15]-[18].

50The judge referred to the magistrate's opinion, based on the police interview, that the prosecution was not able to prove beyond reasonable doubt that the applicant foresaw the possibility of the house burning down. Her Honour quoted the following part of the magistrate's reasons for decision:

"In particular, reference was made to the answers contained in the record of interview at question 117 where, I am paraphrasing, that the accused said to the police that 'We just thought that the couch was going to burn out and the flyscreen.' Answer to question 128, he did not think that the whole house would catch fire. Answer to question 148, he thought that he was just going to singe the couch, as well as answers to questions 151 and 159 which demonstrate that the accused was not aware of the consequences.
If the position is that the prosecution must establish that the accused must prove beyond a reasonable doubt that the accused foresaw the possibility of the house burning down, I think the answers that I have just referred to in the record of interview would place the prosecution in some jeopardy."

51Thereafter, having said that it was sufficient for the prosecution to prove that the plaintiff realised that damage to property might occur and that the prosecution did not have to prove that the plaintiff realised that his act of singeing the couch might cause the house to burn down, the magistrate said:

"So I am satisfied having regard to the admissions contained in the record of interview that the act of setting fire to the lounge was a deliberate act, it was not an accident. In my view that act of setting fire to the lounge and its subsequent spreading to beyond the lounge was a reckless act."

52The primary judge was of the opinion that the magistrate's reasons were sufficient to address the principal arguments raised by the plaintiff and were ample to inform him why he was convicted. Her Honour observed that the reasons articulated the opposing arguments on the construction issue, gave reasons for preferring the construction for which the prosecution contended and sufficiently identified the evidence of the plaintiff's admissions which resulted in his Honour being satisfied beyond reasonable doubt of the plaintiff's guilt. Accordingly, the primary judge did not accept the submission that the magistrate had failed to give adequate reasons.

Ground 2 - assessment

53The applicant says that the primary judge failed to deal adequately with several shortcomings in the magistrate's decision, specifically, that there was no articulation of the reasoning employed in concluding that the act of setting fire to the couch was deliberate and no identification of the admissions relied on in that respect; that there was no explanation of how the magistrate had concluded that "spreading beyond the lounge was a reckless act"; and that there was no articulation of the basis for concluding that there was no reasonable doubt about the applicant's guilt.

54As submissions made on the respondent's behalf recognise, the applicant's complaint depends on some relevant distinction between "singeing the couch" (something the applicant admitted he did) and setting it on fire. There is, in reality, no relevant distinction. The applicant admitted that he deliberately applied a flame to part of the couch, being the threads or fringe that he was "singeing". That was sufficient to support a finding of deliberate setting fire to the couch, in the same way as a finding of deliberately applying a flame to the very tip if one corner of a sheet of paper supports a finding of deliberately setting fire to the sheet of paper. The primary judge was correct to describe the magistrate's reasons, in that respect, as "sufficiently clear".

55As to the basis for the conclusion that "spreading beyond the lounge was a reckless act", the magistrate's discussion of the recklessness concept made it clear that he appreciated the issue to be whether there was foresight of damage beyond that immediately inflicted by the igniting of fibres of the fringe; and the reference to the admissions as a basis for the finding entailed explicit reliance on the following part of the police interview:

"Q: So yes, I guess, is it fair to say that yes, you certainly didn't, did you have any intention of lighting the couch.
A: No. Not completely on fire. No.

Q: So what was your intention, just to ---
A: Just to singe it.

Q: O.K. I guess, even as little things like that, do you appreciate that that's not the right thing to do?
A: Yes. Definitely.

Q: O.K. Why, I guess, just to ask. You know why did you?
A: 'Cause it could have endangered people around us. Houses, people animals.

Q: But if, if, if you did know it was the wrong thing to do, why did you, you know, why would you do it?
A: 'Cause I didn't think it was gunna set the whole couch on fire."

56The applicant's foresight that his actions might have "endangered" nearby houses, people and animals was clearly acknowledged. That foresight included the possibility of damage to property, even though the applicant did not "think" that he was going to set the whole couch on fire. In addition, there was a clear acknowledgement of foresight that the couch would be burnt to some extent (and thereby at least damaged), that being the import of the applicant's statement that he did not think he was going to set "the whole couch" on fire. The applicant realised that the particular type of harm constituting the offence (damage to property, to any degree up to and including destruction) may possibly be inflicted - even would be inflicted - yet went ahead and acted. The magistrate's articulation of reasons made it clear that it was because of the admissions in the record of interview that he regarded the relevant matters, including recklessness, as proved beyond reasonable doubt.

57The magistrate was correct in this respect and the primary judge correctly held that there was no error.

The "no case to answer" issue (Ground 3)

58The applicant complained before the primary judge that the magistrate had failed to distinguish between proof of a prima facie case and proof beyond reasonable doubt. The primary judge did not accept that proposition. She referred to the course of the hearing. The police brief (including the record of interview) was admitted into evidence by consent and the hearing proceeded by way of oral submissions. No witnesses were called. The applicant's solicitor made a "no case" submission on the second charge, dealing with the doli incapax issue and the question whether the evidence was capable of establishing that the plaintiff intentionally or recklessly destroyed the house by fire.

59After referring to the core content of the magistrate's decision (set out at [13] above), the primary judge said that, while the magistrate did not expressly say that there was a case to answer, that conclusion was implicit in his finding as to the requisite mental element; and, because there was evidence on the basis of which it was open to the magistrate to find that the plaintiff foresaw at least that the couch might be damaged, the determination of the legal test of recklessness against the applicant meant that there was necessarily a case to answer.

60It was common ground before the primary judge that the applicant did not intend to call evidence if the no case submission was rejected and agreed that the magistrate could determine the matter on the papers. For that reason, her Honour said, it would have been futile for the magistrate to determine the no case submission and then ask the plaintiff whether he wished to go into evidence.

61The judge also observed that the applicant's submissions before the magistrate were directed to an interpretation and weighing of the evidence, something that would not have been germane to an assessment whether there was a case to answer but was central to the determination whether the prosecution had proved its case beyond reasonable doubt; and the applicant's case was conducted on the basis that, if the magistrate decided that there was a case to answer, he would proceed to determine whether the case had been proved beyond reasonable doubt.

62The primary judge's conclusion on this aspect (at [77]-[79]) was:

"I consider that the substance of what the Magistrate said and did was sufficient to indicate that his Honour distinguished between the requirements of a case to answer on the one hand and satisfaction beyond reasonable doubt on the other. That his Honour did so in a shorthand way is understandable in circumstances where there was no conflict in the evidence and the plaintiff had elected not to adduce evidence in his case. The only real matters in issue, apart from doli incapax, which is not the subject of appeal, were the mental element required and the effect of the plaintiff's admissions as to his thought processes.

Although the Magistrate did not, in his reasons, expressly deal with the two matters separately, his Honour did make clear in the final paragraph of the reasons that he was addressing the second question: whether the prosecution had proved its case beyond reasonable doubt. This followed a consideration of the elements of the offence together with the evidence probative of such elements. The Magistrate had earlier addressed the question of the mental element in respect of which there needed to be some evidence for there to be a case to answer.

The Magistrate did not in terms say 'I find there is no [sic; scil 'a'] case to answer'. However in light of the way the hearing was conducted and the submissions were made, the Magistrate must be taken to have found a case to answer since this was the only basis on which his Honour could have proceeded to determine the factual question whether the requisite mental element had been established beyond reasonable doubt."

Ground 3 - assessment

63The applicant maintains in this Court that the judge should have recognised that the magistrate in truth heard a "no prima facie case" submission and then, as it were, jumped to a finding of guilt beyond reasonable doubt and, in doing so, failed to distinguish between the capacity of the evidence, taken at its highest, to satisfy the court that the offence had been committed and the question whether the evidence had in truth made out the offence beyond reasonable doubt.

64It is true that the magistrate made no express finding that there was a case to answer. But, as the primary judge recognised, he implicitly embraced that proposition by dealing with the matter in the way that he did, that is, by surveying the whole of the evidence in a context where the issue of recklessness and the findings necessary for proof of that element had been exposed and then announcing the unambiguous conclusion stated at [13] above.

65There is no room to doubt that, as the primary judge found, the magistrate embarked on the process of deciding the issues relevant to the applicant's guilt, directed himself as to the legal test of recklessness and then made a determination of the pertinent factual matters beyond reasonable doubt. The course taken is clearly demonstrated by the transcript of the Children's Court hearing. There was no confusion with the process of deciding whether there was a case to answer.

Conclusion

66The applicant has not made good any of the grounds on which he seeks to appeal from the decision of the primary judge.

67Because the issue concerning recklessness involves an important question of law, leave to appeal should be granted. But the appeal should be dismissed.

68I mentioned at the outset that the applicant had made an oral application under s 69 of the Supreme Court Act in respect of the Children's Court decision. This was prompted by the circumstance that, after the adjudication of the magistrate, the applicant was referred to a youth justice conference and entered into (and performed) a youth justice agreement, following which the charge under s 195(1) of the Crimes Act was dismissed on 4 July 2013 in accordance with provisions of the Young Offenders Act 1997 (NSW). That raised an issue of utility of the proceedings in this Court. It was noted, however, that the master bench sheet forming part of the record of the Children's Court at Nowra continued to contain an entry in respect of the s 195(1) charge: "Proved following hearing (on papers)". The s 69 application was made with a view to that entry being somehow dealt with by an order of this Court if the appeal were allowed. In view of what I have said about the outcome of the appeal, that possibility does not need to be pursued and the capacity of a s 69 order to produce the desired result does not need to be explored (see, however, LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016).

69Finally, I note the parties' agreement that there should be no order as to costs in this Court.

70I propose orders as follows:

1. Grant leave to appeal.

2. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days.

3. Dismiss the appeal.

4. No order as to costs.

71EMMETT JA: The applicant, an infant (CB), seeks leave to appeal to this Court from an order made by a Judge of the Common Law Division dismissing an appeal from a decision of the Children's Court. CB was convicted of an offence under s 195(1)(b) of the Crimes Act 1900 (NSW) (the Crimes Act). He appealed to the Supreme Court under ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal Act). The primary judge ordered on 23 May 2013 that CB's appeal be dismissed. By summons dated 22 August 2013, CB has applied for leave to appeal under s 101(2)(h) of the Supreme Court Act 1970 (NSW) (the Supreme Court Act) and Rule 51.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

72Section 195(1)(b) of the Crimes Act relevantly provides that a person who intentionally or recklessly destroys or damages property belonging to another, by means of fire, is liable to imprisonment for ten years. Property, as defined in s 4, includes every description of real and personal property. Under s 4A, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.

73At 4pm on 29 March 2012, CB, who was then aged nearly 15 years, and another youth (CS), climbed through the bathroom window of an unoccupied residence in Sanctuary Point, New South Wales. The residence was being renovated at the weekends by its owners. CB and CS went up to the third floor where they smoked cigarettes, which they lit with a lighter belonging to CS. CS went downstairs and CB used the lighter to singe frayed material on a couch. The couch was made of foam and caught fire. CS returned to the third floor to help CB in trying to extinguish the fire, but their efforts were unsuccessful. When the room filled with smoke, they left the residence, which then burnt down.

74CB was subsequently charged with an offence under s 195(1)(b) in the following terms:

Intentionally or recklessly damage property by fire/explosive
between 4:00pm and 4:15pm on 29/03/2012 at Sanctuary Point,
did intentionally or recklessly destroy by means of fire certain property, to wit, A house at ... Sanctuary Point, the property of ...

75The prosecution case consisted of the police brief, which included an electronically recorded interview of CB (the Interview Record) and statements by police officers. None of the makers of statements was cross-examined and no objection was taken to the Interview Record. At the close of the prosecution case, CB, through his solicitor, submitted that there was no case to answer. The solicitor indicated that CB would not go into evidence in any event. The magistrate sitting as the Children's Court stood the matter down in the list so that he could read the police brief. Later in the day, for reasons given ex tempore, his Honour found that "the offence" had been proved beyond a reasonable doubt.

76The Children's Court magistrate indicated to the parties that he thought that it was appropriate to refer the matter to a youth justice conference since CB had no criminal record. The prosecution supported that course.

77The prosecution then indicated to the Children's Court magistrate that the owners of the house wished to attend the conference and had asked the prosecution to ask the Court for compensation. The prosecutor indicated that the total repair bill was $166,000. Later, the magistrate said that, while he had been asked to consider the question of compensation, the Children's Court had only very limited power to order compensation and certainly nowhere near the amount sought by the owners. His Honour said that he would not make any order for the payment of compensation. His Honour then adjourned the proceedings to a date in November 2012, but excused CB from attending provided that he completed any outcome plan prepared as a result of the conference.

78Following the decision of the Children's Court, CB was referred to a youth justice conference. He entered into, and subsequently performed, a youth justice agreement. The charge under s 195(1)(b) was then dismissed on 4 July 2013, in accordance with the provisions of the Young Offenders Act 1997 (NSW).

79There was no suggestion that a different outcome would have been possible had the particulars of the charge asserted that CB did intentionally or recklessly destroy by means of fire certain property, to wit, a couch situated in a house at Sanctuary Point, rather than referring to intentionally or recklessly destroying by means of fire certain property, to wit, a house at Sanctuary Point. That is to say, there can be no suggestion that the treatment of CB was based on reckless destruction of the house, rather than reckless destruction of the couch.

80In his amended summons instituting the appeal under the Appeal Act, CB sought an order setting aside "the conviction (finding of guilt)" made by the Children's Court. Alternatively, he sought an order setting aside "the conviction (finding of guilt)" made by the Children's Court and remitting the matter for redetermination in accordance with the directions of the Supreme Court.

81Before the primary judge, CB relied on six grounds. The primary judge rejected all of those grounds. The proposed grounds to be relied upon if leave to appeal to this Court is granted are as follows:

(1)The primary judge erred in finding that, in order to establish a charge that CB intentionally or recklessly destroyed a house by means of fire, it was not necessary for the prosecution to prove that CB foresaw the possibility that his actions might lead to the house being destroyed;

(2)The primary judge erred in finding that the Children's Court gave adequate reasons for the conclusion that the charge was made out;

(3)The primary judge erred in finding that the Children's Court did not err in failing to distinguish between proof of a prima facie case and proof beyond reasonable doubt.

82The respondent to these proceedings, the Director of Public Prosecutions (the DPP), opposes the grant of leave on the basis that the decision of the primary judge was the product of the application to the decision of the Children's Court of well-settled principles. A direction was given that the application for leave to appeal be heard concurrently with the appeal, assuming that leave were to be granted.

Ground 1: The Necessary Mental Element

83In his reasons, the Children's Court magistrate considered that, if the prosecution must prove beyond a reasonable doubt that CB foresaw the possibility of the house burning down, the answers contained in the Interview Record of CB would place the prosecution in some jeopardy. However, his Honour accepted the submission of the prosecution that that is not the test. His Honour held that there is no requirement in s 195, nor in the definitions contained in the Crimes Act, for the prosecution to prove beyond reasonable doubt that CB foresaw the possibility of the house burning down. Rather, his Honour said, the test is that CB had the realisation that the particular kind of harm in fact occasioned might occur, but not necessarily the degree to which that damage occurred. Accordingly, his Honour was satisfied, having regard to the admissions contained in the Interview Record, that the act of setting fire to the lounge was "a deliberate act" and that the act of setting fire to the lounge, and its subsequent spreading beyond the lounge, was "a reckless act". Therefore, his Honour found that "the offence" had been proved beyond reasonable doubt.

84CB contends that the requirements of procedural fairness did not permit the prosecution to depart from the particulars pleaded in the charge. The charge expressly alleged that CB either intentionally or recklessly destroyed the property, namely, the house, by means of fire. That was the issue on which CB contested the case in the Children's Court. It was on that basis, CB contends, the solicitor acting for CB must be taken to have made decisions as to how to run the case, for example, whether or not to go into evidence, and to have given advice to CB. Having regard to the specific way in which the charge was pleaded, and the way in which the respective cases of the prosecution and CB were run, the destruction of the house was an essential fact or particular.

85As a general rule, in order to obtain a conviction, the Crown must establish the essential facts alleged in the Indictment. If the Crown fails to establish an inessential fact, or fails to establish a particular provided before the trial, that will not necessarily be fatal. On the other hand, in some circumstances, the requirements of procedural or substantive fairness may restrict the capacity of the prosecution to depart from particulars (see R v VHP (Court of Appeal (NSW), 7 July 1997, unrep)).

86Section 175(3) of the Criminal Procedure Act 1986 (NSW) relevantly provides that a Court Attendance Notice must describe the offence and briefly state the particulars of the alleged offence. Under s 11, the description of any offence in the words of an Act creating the offence, or in similar words, is sufficient in law. Under s 12, an indictable offence that may be dealt with summarily is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. That provision applies to a statement or description of an offence in any Court Attendance Notice.

87Clearly, in the light of those provisions, there are two requirements for an effective Court Attendance Notice. The first is to describe the offence. The Court Attendance Notice in the present case did that in the following terms:

Crimes Act 1900, Section 195(1)(b)
Intentionally or recklessly damage property by fire/explosive.

88The second requirement is that the Court Attendance Notice briefly state the particulars of the alleged offence. In the present case, that was done by the following:

between 4:00pm and 4:15pm on 29/03/2012 at Sanctuary Point,
did intentionally or recklessly destroy by means of fire certain property, to wit, A house at ... Sanctuary Point, the property of ... .

89CB contends that the primary judge should have found that the charge brought against him required the prosecution to prove that he had intentionally or recklessly destroyed the house, since that is the allegation made by the prosecution. He says that the primary judge erred in concluding that it was sufficient for the prosecution to prove merely that he foresaw the possibility of some damage to any property whatsoever, no matter which property and no matter how minimal.

90Where the mental element of an offence is recklessness, satisfying that element requires the prosecution to establish foresight of the possibility of a relevant consequence. The primary judge held that the reference to the relevant consequence is a reference to the physical consequences of the acts in question contemplated by the statutory provision (see Blackwell v The Queen [2001] NSWCCA 93; 81 NSWLR 119). The primary judge considered that the foresight of the possibility caused by the recklessness must be damage to, or destruction of, property, since they are the consequences referred to in s 195(1)(b). The property to which the foresight of the possibility of damage or destruction applies is described in s 195(1)(b) as "property belonging to another". All that was necessary, on that contention, is that CB be found guilty of having damaged or destroyed property of another.

91I have had the advantage of reading in draft form the proposed reasons of Barrett JA. I agree, for the reasons given by his Honour, that the primary judge and the Children's Court made no error in concluding that acts causing destruction of the house, accompanied by foresight of harm to any property, whether damage or destruction, were sufficient and that it was not necessary to prove foresight on the part of CB on the destruction of the house alone.

Ground 2: Adequacy of Reasons

92The primary judge rejected CB's contentions that the Children's Court had given inadequate reasons for being satisfied beyond reasonable doubt of CB's guilt. Her Honour characterised the real issue in the case as being the mental element required and whether the prosecution had at least established foresight of the possibility of the couch being damaged beyond reasonable doubt. The Children's Court magistrate was satisfied that the act of setting fire to the lounge was a deliberate act and not an accident and that that act was a reckless act because CB foresaw the possibility that the couch might be damaged. Accordingly, his Honour found that the offence had been proved.

93I also agree with Barrett JA, for the reasons given by his Honour, that the articulation of reasons by the Children's Court made it clear that it was because of the admissions in the Record of Interview that the relevant matters, including recklessness, were regarded as proved beyond reasonable doubt. The primary judge correctly held that there was no error in that regard.

Ground 3: Distinction between proof of a prima facie case and proof beyond reasonable doubt

94The question whether the prosecution has established a prima facie case is a question of law, while the question of whether it has proved the commission of the offence beyond reasonable doubt is a question of fact. The two questions are separate and distinct. Keeping the two issues separate and distinct is more than a mere formality (DPP v Adam James Lee [2006] NSWSC 270 at [32]).

95The prosecution's case before the Children's Court consisted of the police brief, which was admitted by consent. No witnesses were called. CB's solicitor then made a "no case" submission on the charge under s 195(1)(b). The submissions concerned two issues. The first was whether the prosecution had established that CB knew that what he was doing was wrong. The second was whether the evidence was capable of establishing that CB intentionally or recklessly destroyed the house by fire. The Children's Court magistrate concluded that foresight of the possibility of damage to property was sufficient, rather than, as was contended on behalf of CB, that it was necessary to establish foresight of the possibility of the house burning down.

96Although the Children's Court did not expressly find that there was a case to answer, it was implicit in the magistrate's finding as to the requisite mental element that there was evidence that, if accepted, could establish that CB foresaw the possibility of damage to property. I agree with Barrett JA, for the reasons given by his Honour, that, as the primary judge found, the Children's Court embarked on a process of deciding issues relevant to CB's guilt, directed itself as to the legal test of recklessness and then made a determination of the relevant factual matters beyond reasonable doubt. CB's solicitor had indicated that he did not intend to call evidence if the "no case" submission was rejected and agreed that the Children's Court magistrate could determine the matter on the papers. It would therefore have been futile to determine the "no case" submission and then ask CB whether he wished to go into evidence.

Conclusion

97There are reasonable arguments in support of the first proposed ground of appeal. In the circumstances, I agree with Barrett JA that leave to appeal should be granted. However, the appeal should be dismissed. The DPP does not ask for any order for costs.

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Decision last updated: 24 April 2014