SUPREME COURT OF QUEENSLAND

CITATION:	R v Mason [2024] QCA 104	
PARTIES:	R
v
MASON, James Morton
(appellant)	
FILE NO/S:	CA No 1 of 2023
SC No 1449 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 12 December 2022 (Jackson J)	
DELIVERED ON:	4 June 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	1 May 2024	
JUDGES:	Mullins P and Morrison JA and Callaghan J	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty to one count of arson – where the appellant was convicted of murder – where the central question for the jury was the appellant’s intention when he lit the fire – where the appellant submitted that a miscarriage of justice arose from the summing up of the defence case – whether the trial judge adequately explained the defence relating to the question trail – whether a miscarriage of justice occurred – whether the appeal should be allowed
Criminal Code (Qld), s302(1)(b)
R v Baker [2014] QCA 5, cited
R v Dao [2005] VSCA 196, cited
R v Nguyen [2006] VSCA 158, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
Stokes v The Queen (1960) 105 CLR 279; [1960] HCA 95, cited	
COUNSEL:	S P Robb KC, with E A Lynch, for the appellant
C N Marco for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecution (Queensland) for the respondent	
[1]	MULLINS P:  I agree with Morrison JA.
[2]	MORRISON JA:  As at February 2020, the appellant and the deceased were in a relationship.  There was trouble between them, and text messages from the deceased to the appellant’s daughter suggested the deceased had been assaulted by the appellant.
[3]	They had lived in a highset weatherboard house, under which the deceased parked her car.  It usually had a cover on it when it was not being used.
[4]	The appellant was thrown out by the deceased and stayed for a while under the house, sleeping there.
[5]	In the early hours of 5 February 2020, the appellant set fire to the deceased’s car, using some petrol and candles.  The fire quickly spread to the house.  The deceased was caught inside the house and did not escape.  Four days later, she died because of multi‑organ failure due to the effects of the fire.
[6]	The appellant was charged with arson and murder.  On the first day of the trial, he pleaded guilty to the count of arson and not guilty to the count of murder.  He was convicted of murder after a three-day trial.
[7]	The central issue for the jury was the issue of the appellant’s intention when he lit the fire.  That is, whether they were satisfied that either the deceased’s death was reasonably foreseeable by an ordinary person in the appellant’s position, or that the appellant intended to kill or cause grievous bodily harm to the deceased.
[8]	Leave was granted to amend the grounds of appeal to raise only one ground; namely, that there was a miscarriage of justice because the trial judge did not adequately explain the defence case in relation to the question trail which the jury was encouraged to use in reaching their verdict.
Background
[9]	The appellant’s appeal outline set out a non-contested summary of the evidence at the trial.  What follows draws upon that summary and the formal admissions made at the trial.
[10]	The appellant and the deceased had been in a domestic relationship.
[11]	The deceased lived in a single-level weatherboard Queenslander house with concrete pillars, which lifted the house up to a height that allowed for a car to be parked underneath.
[12]	The area under the house consisted of concrete and dirt flooring with a garage-type area towards the front for a car.  Lattice fencing was used to partially enclose the ground area.
[13]	The deceased had three sets of keys to the house.  One set was held by a family friend and the other two sets remained in the deceased’s possession.  There was no evidence that the appellant possessed a set of keys to the house.
[14]	The deceased was the owner of a car (a Subaru Liberty) that was parked under her house.
[15]	Between 7.37 pm and 11.27 pm on 4 February 2020, the deceased sent a series of text messages to the appellant’s daughter.  Those messages suggested that the appellant had been physically abusive to the deceased, that the deceased was threatening to call the police, and that the appellant was in the lower level of the house.
[16]	The house was observed to be on fire on 5 February 2020.
[17]	At about 4.06 am, the Queensland Fire and Rescue Service (QFRS) dispatched four crews who arrived between about 4.12 am and 4.15 am.  An ambulance arrived at around 4.25 am.
[18]	The deceased was located by QFRS in the house, unconscious and unresponsive, with a set of keys in her hand.  When she was taken from the house, she was not breathing and was unresponsive.
[19]	When paramedics arrived, the deceased was still not breathing and was unresponsive.  She had no palpable carotid pulse.  Paramedics continued CPR and administered medical attention.  She regained a pulse and resumed breathing with assistance.  Paramedics transported her to the hospital.
[20]	The deceased received medical and surgical treatment between 5 February and 8 February before it was determined that no further medical or surgical intervention would be appropriate or beneficial to her.  She died on 9 February 2020.
[21]	An autopsy determined that the cause of death was multi-organ failure due to the effects of fire, namely profound hypoxia and burns.
[22]	The house was extensively damaged.  Most of the upholstery, plastic components, window glass, and tyres on the Subaru Liberty were consumed by the fire.  A melted red plastic container was found to contain petrol residue.
[23]	The fire was deliberately lit and the fire patterns inside the cabin of the Subaru Liberty indicated that it was the area of origin.
[24]	The two rear doors of the car were open during the initial development of the fire.  The rear door openings provided a point of egress for heat, flame and combustion gases to spread into the lower level of the house.  The flow of heat from the fire radiated heat and direct flame in all directions within the lower level of the house.  As the fire continued to develop, flames and concentrations of heated smoke particles would have been contained within the upper sections.
[25]	The front entry consisted of two doors: a security door and a wooden door.  If the security door had been locked, a key would be required to open the door.  The wooden door contained two locks: a deadbolt lock, which was in a locked state, and a Carbine key and knob entry lock, which was jammed in a locked state.
[26]	Examination of the Carbine key and knob lockset found that the main spring in the locking hub had jammed.  It was highly likely that the heat of the fire on the external handle weakened the main spring in the locking hub, preventing the lock from being unlocked from inside the house.  Neither lock had been tampered with or had any faults prior to the fire that would prevent it from being unlocked and opened.
[27]	The rear entry had two doors: a security door and wooden door.  Only one of the lock barrels was recovered and examination found no evidence of obstruction in the keyway.  However, if the security door had been locked, a key would have been required to open the door.
[28]	The wooden door was open at the time of examination.  Damage to the spring-loaded latch bolt, the locking bolt and face of the lock was consistent with being forced inwards while locked.
[29]	One of the keys was the correctly coded key for the rear wooden entry door lock.  Testing found that it operated the lock and would have unlocked the door lock when closed and locked.
Evidence of the neighbours
[30]	The accounts of the neighbours were reasonably consistent:
(a)	they were woken early in the morning by the sound of arguing, the sounds and smell of a fire, or people yelling to someone to get out of the house;
(b)	a neighbour gave evidence that he had heard an argument at 6 pm the night before, during which the deceased told someone to leave;
(c)	three neighbours gave evidence that they were woken in the early hours of the morning by arguing between a man and a woman, and a short time later they smelt smoke or saw a small fire under the house; and
(d)	those first on the scene said that the fire started as a small fire under the house but spread very quickly.
The appellant’s evidence
[31]	The appellant participated in several interviews with police: a formal interview when he was initially apprehended, an audio recording of an undercover police officer in the watchhouse, and a further formal interview with police after the deceased died.
[32]	The appellant explained his state of mind in various ways during the three recordings:
(a)	he set fire to the car but had no intention to hurt the deceased otherwise;
(b)	he did not think about the consequences of lighting the car;
(c)	setting fire to the deceased’s car was to pay her back for threatening his family;
(d)	the deceased had a key to the doors; and
(e)	he knew the house was going to burn if petrol was ignited under it.
[33]	The appellant did not give or call evidence at trial.
The defence case as put to the jury
[34]	In the final address, defence counsel put the case to the jury on a succinct basis:
(a)	in the recorded conversation with the undercover police officer, the appellant “consistently says I did not intend to hurt her”;
(b)	the jury had to focus on “what happens after the fire is set” because “him walking away … is also consistent with him walking away in the knowledge that she has every opportunity to get out of the house”;
(c)	that what the Crown “have to prove to you essentially beyond reasonable doubt is either that he intended to kill [the deceased] or to cause her grievous bodily harm or that her death was foreseeable to him in the circumstances … or would have been foreseeable to a reasonable person”;
(d)	“to his knowledge, she had the keys, she had the ability to just walk out”;
(e)	that “one of the things that he is consistent throughout is that he had no intention to hurt [the deceased]”; his “intention was to damage her car”, and he “continually says he was not thinking of the consequences and he did not think that anything bad would happen”;
(f)	“my client never foresaw what was going to happen so quickly.  And in his mind, he was simply of the view that [the deceased] had the ability to get out of the house”;
(g)	it was “an immature, petulant act of trying to damage the car, trying to burn the car and that’s what it was. We have no intentions of anything worse happening. Again, later on in that interview … the police officer who’s doing his job has said:
‘So when did you think that you might kill her?’
And my client’s response was:
‘I had no intention to kill her.’
And he maintains that to the end of that interview. So, ladies and gentlemen, it comes down to this. My client’s set fire to a car and it spread to the house and he’s accepted responsibility for that, but is it really, in all of those circumstances with what had been going on, was it foreseeable to him or to a reasonable person that Ms Parkes, with the ability that she had to just walk out the door, would die? It is befuddling to understand why she just didn’t”.
[35]	As is apparent from the extracts above, the defence case was simple: (i) he did not foresee the consequences; (ii) the deceased’s death was not reasonably foreseeable by an ordinary person in the appellant’s position because she had keys and could get out of the house; and (iii) he did not intend to kill or cause grievous bodily harm.
The question trail
[36]	In the summing up, the trial judge provided the jury with two documents.  The first was a question trail, containing five questions.  The second contained extracts of applicable provisions of the Criminal Code (‘Code’).  His Honour summed up by reference to the question trail, taking the jury through the questions one by one.
[37]	No issue is taken on this appeal as to the accuracy or utility of the question trail.  Rather, the contention is that his Honour did not adequately summarise the defence case as he summed up by reference to the question trail.
The summing up
[38]	In the course of explaining that the appellant’s failure to give or call evidence did not shift the onus of proof, the trial judge reminded the jury that:
“Here, though, there are a number of statements that are made by Mr Mason to police in interviews, and also to the covert police officer. You can take what he said into account to the extent that you see fit.”
[39]	The jury were reminded that the two alternatives relevant to intention for murder were that either the appellant intended to kill or do grievous bodily harm to the deceased, or the appellant intended to set fire to the car, and that setting fire to the car was an act of such a nature as to be likely to endanger human life.
[40]	When dealing with question 2 on the question trail, the trial judge reminded the jury that 2(a) dealt with whether the appellant intended the deceased’s death, and 2(b) dealt with whether her death was reasonably foreseeable as a possible consequence by an ordinary person in the appellant’s position.  The trial judge then explained the three alternatives built into question 2:
“So as I think already foreshadowed, there are three alternatives built into this question. First, did Mr Mason intend to cause [the deceased’s] death? Second, even if he did not intend it, did he foresee that it might happen, but he lit the fire anyway? And third, even if he neither intended it nor foresaw it, would an ordinary person in his position who knew what he knew when he lit the fire have reasonably foreseen her death as a possible consequence of lighting the fire?”
[41]	The trial judge then referred to the prosecution case that, in order to secure a conviction, it did not have to prove intention to kill:
“The prosecution submitted that despite Mr Mason’s consistent denials to police in his interviews and to the undercover police officer … his denials that he intended to kill [the deceased] when he lit the fire, … the prosecution does not have to go that far. It is enough that … Mr Mason foresaw that [the deceased’s] death might happen but still lit the fire, or if an ordinary person in his position, knowing what he knew would have foreseen it.”
[42]	The trial judge then went through questions 1 to 4 in the question trail, and s 302(1)(b) of the Code.  Explaining that, his Honour said:
“Now, in law, those acts constitute an act done in the prosecution of an unlawful purpose for the purpose of section 302(1)(b) which we looked at a moment ago which is why the facts are embedded into the question you are being asked here when dealing with [section] 302(1)(b). You will recall there was evidence in the interviews with police about what Mr Mason intended when he lit the fire. There was never any suggestion that he had Ms Parks’ consent.
It is not suggested as an available concern. And he acknowledged in the interviews in different places, and I will not take you to the detail of this, that he intended to set fire to the car. So that seems, provided you accept his statements to that effect, to be something that you may find on his own admissions. You can also take into account the physical evidence of the examination of the scene afterward in terms of what was found in reaching that conclusion one way or the other.
If you answer question 3 yes, the next question in question 4 asks whether the Prosecution has satisfied you that setting fire to the car was an act of such a nature as to be likely to endanger human life. And if I take you back to section 302(1) and paragraph (b), you will see that is the second of the requirements in that paragraph: 
...which act is of such a nature as to be likely to endanger human life.
So the legal requirement is embedded into question 4. But when you answer question 4, do not use hindsight to reason that simply because [the deceased] was killed, the lighting of the fire was likely to endanger human life. That question is to be answered at the moment of lighting the fire in the context of the actual facts at that moment.
Now, in assessing the answer to the question, the facts that you should or may take into account include how the fire was lit, what was around the car that was likely to catch fire when the fire was lit, where the car was located, whether it was likely the house would catch fire, that [the deceased] was in the house above, and whether she might or might not be able to get out of the house if it caught fire. They are all relevant consideration to ask when you are answering the question whether when Mr Mason lit the fire that was an act of such a nature as to be likely to endanger human life.”
[43]	The trial judge addressed question 4 and then turned to question 5, which, as his Honour pointed out, could only be reached if the answer to question 2 (did the appellant intend to kill or cause grievous bodily harm) was yes.  His Honour then said:
“Now, this is where I said I would come back to the question of inference. To find that Mr Mason held such an intention requires you to draw an inference as to his state of mind from the other facts that you find established by the evidence. And that intention may be inferred and deduced from the circumstances in which he acted and from his conduct before, at the time of and after the act of lighting the fire. So a simple example would be if Mr Mason said, “Yes, I intended to kill her”, or “I intended to seriously burn her”; that might be evidence that would go directly in that way.
In fact, as Mr Lewis has relied upon strongly before you, all Mr Mason’s own statements are to the opposite effect, and I will come back to that. What he said, though, about his intention must be considered for the purposes of deciding whether he held the intention to kill at the time he lit the fire or to do grievous bodily harm. And that is the relevant time again at which the Prosecution must prove beyond reasonable doubt for the purposes of question 5 that he held the intention to kill or do grievous bodily harm. It is not necessary for the Prosecution to prove that that intention was held for any particular length of time.
It is at that time when he lit the fire that is important. Now, there may be in any particular case competing potential inferences when you are going through this process I described. So one may be that the defendant intended to kill or do grievous bodily harm. Another may be, no one said this specifically, but a possible set of circumstances you could imagine would be to frighten the person who ultimately ended up dying, or to pay them back in some way, but not to kill.
A third possibility is that the defendant or potential defendant does not hold any particular intention at all … – you will remember submissions made by Mr Lewis that went to that alternative possibility.”
[44]	The trial judge then addressed the need for any inference to be the only rational inference, and continued:
“So that is the right question to answer when you are considering this alternative for the fourth element of murder. I said earlier I would return to the subject of circumstantial evidence in some greater detail as well. So the categories of relevant circumstantial evidence are, first, the physical facts that you find as to the circumstances when the defendant lit the fire and, second, the findings that you make as to his conduct that may go to his intention when he did that.
The physical facts that you may take into account include how the fire was lit, what was around the car that was likely to catch fire when it was lit, what had been removed from under the house, where the car was located, whether it was likely the house would catch fire, that Mr Mason knew that [the deceased] was in the house above, and whether and to what extent it was likely that [the deceased] might not be able to get out of the house if it caught fire.
Now, there is a variety of evidence that goes to those matters and, in particular, a variety of evidence that goes to the conduct of [the defendant] that may be considered. I am not going to in detail go through that evidence because it has been in fairly short compass overall, even though today is our third day, the evidence has pretty much been kept in a tight rein and, so, it would not be useful, I think, to go through it in any detail.”
[45]	Finally, the trial judge turned to the submissions made by defence counsel immediately prior to the summing up:
“You have heard [the] submissions that were put on behalf of the defendant by Mr Lewis only a little while ago, and I will not rehearse them. I will summarise that case as simply as I can. First, on all the questions that [were asked] as to Mr Mason’s intention in lighting the fire, Mr Lewis submits that one thing Mr Mason consistently repeated in all his interviews and including the conversation in the cell is that he did not intend to kill or hurt [the deceased].
He submits [that] because of that, and the other things as well, but because of that, in particular, you will not be satisfied beyond reasonable doubt that Mr Mason intended to kill [the deceased] or do her grievously bodily harm. Second, he submits that while Mr Mason did intend to set fire to the car and while he was aware when he lit the fire that it was likely that the house would catch fire, that is as far as it goes. He submits you would not be satisfied beyond reasonable doubt that Mr Mason also foresaw or intended that [the deceased] would die in the fire.
And third, as to the question … whether [the deceased’s] death was reasonabl[y] foreseeable, which you will recall is in question 2(b), and whether the lighting of the fire was an act of such a nature as to be likely to endanger life which is in question 4, he submits that you will not be satisfied beyond reasonable doubt that the answers to those questions are yes because [the deceased] had the keys to open the locks and to get out of the house after the fire started, and as event happened only could not do so because of some unfortunate mix-up or confusion on her part.
I am paraphrasing, but that is the effect of the submissions that have been made.”
Consideration
[46]	The central submission made by the appellant was that whilst the trial judge dealt thoroughly with the question trail itself, his Honour did not explain the defence case in relation to each question.  As developed, the submission was that the defence case was not put to the jury, in that the trial judge did not explain that:
(a)	as to question 2, while it was not in issue that the appellant lit the fire and knew it would likely spread to the house, it was in issue as to whether the death could reasonably be foreseen because the deceased could have readily left the house;
(b)	as to question 4, while it was not in issue that the fire, once lit, was likely to spread to the house, it was in issue that setting the fire was likely to endanger life because the deceased was awake, she had keys, and had the opportunity to leave; and
(c)	as to question 5, that the appellant relied on his answers in the interviews to dispel any conclusion as to his intention; namely that his intention was to damage the car, he was not thinking of the consequences at the time he lit the fire, and his statement that it was lucky that she was alive (which he gave at some point before the deceased’s death).
[47]	For a number of reasons, I am unable to accept those submissions.
[48]	First, the trial was in short compass.  The evidence lasted a day and a half.  The closing addresses followed the next morning, taking about 42 minutes for the Crown and 28 minutes for the defence.  The summing up lasted less than an hour.  The trial judge commented on the fact that, in his Honour’s assessment, he did not need to go into the evidence in detail or rehearse the defence submissions: see the first paragraph quoted in paragraph [45] above, and the last paragraph quoted in paragraph [44] above.  Defence counsel did not suggest that his Honour needed to do more, and no redirections were sought.
[49]	Secondly, on the first day of the trial, the witnesses were the neighbours who described what they saw and heard.  Cross-examination was short and relevantly confined to matters concerning whether the deceased had keys and a way of exiting the house.  The appellant’s recorded interviews were played on day two and were almost the last evidence heard by the jury.  Addresses were made the next morning.
[50]	Thirdly, the defence case was simple and clearly articulated by defence counsel in address: see paragraphs [34] to [35] above.  That address was immediately followed by the summing up.
[51]	Fourthly, in those circumstances, in my view, it would have been clear to the jury that the defence case encapsulated three essential elements to establish that the appellant did not have a relevant intention: (i) he did not foresee the consequences of lighting the fire; (ii) the deceased’s death was not reasonably foreseeable by an ordinary person in the appellant’s position, because she had keys and could get out of the house; and (iii) he did not intend to kill or cause grievous bodily harm.
[52]	Fifthly, the trial judge did identify those matters during the summing up.  Having reminded the jury (more than once) about the appellant’s interviews, the trial judge referred to: (i) the appellant’s consistent denials that he intended to kill when he lit the fire; (ii) that the ordinary person who might be said to have foreseen the result, had to be in the appellant’s position and with the appellant’s knowledge; (iii) that the appellant acknowledged an intention only to set fire to the car; (iv) in answering questions 4 and 5 (i.e. was lighting the fire likely to endanger human life, and did he intend to kill) the jury were to look at how the fire was lit, what was around the car that was likely to catch fire, whether it was likely the house would catch fire, that the deceased was in the house and whether she could get out.
[53]	The trial judge then referred to defence counsel’s strong reliance on the fact that all the appellant’s statements were to the opposite effect of “I intended to kill her”, and his submission that the appellant had no particular intention at all.  The trial judge also referred accurately to the essence of the defence submissions: (i) the appellant consistently denied any intention to kill or hurt the deceased; (ii) he did not intend to do grievous bodily harm; (iii) he could not have foreseen that the deceased would die in the fire; and (iv) the death was not foreseeable because he knew the deceased had keys and could get out.
[54]	Sixthly, the manner in which a trial judge structures the summing up is a matter for individual judgment.  Here, the trial judge provided counsel with the opportunity to comment and discuss the draft summing up, and the question trail, before it was provided to the jury.  Defence counsel did not raise objection to the use of the question trail, sequencing of questioning, or the content or words of the questions.  Likewise, defence counsel did not raise any relevant changes to the draft summing up, nor did he make any submissions as to the need for more particularity in relation to the defence case.
[55]	It is true that a summing up must identify the real issues on the respective cases of the prosecution and the defence, the facts relevant to those issues, and the applicable law.  It is also true that the defence case should be put in such a way that when retiring to consider their verdict, the jury have a clear understanding of the accused’s position.  However, in this short and clear-cut trial, the defence position was simply and clearly put, both in the closing addresses and in the immediately following summing up.  It is notable that the defence case was so clear that the trial judge commented that there was no need to go into the evidence in detail.  For this Court to go further would be to encroach upon the discretion trial judges have as to how to sum up in a particular case.
[56]	In my view, the considerations above demonstrate that the trial judge adequately summarised the defence case in the circumstances of the trial.
Conclusion
[57]	For the reasons I have expressed above, the appeal should be dismissed.  I propose the following order:
1.	Appeal dismissed.
[58]	CALLAGHAN J:  For the reasons proposed by Morrison JA I agree that the appeal should be dismissed, and join in the order he proposes.