Bench of five senior Tasmanian judges make ruling over law regarding “joint criminal enterprises”

A man who hatched a plan with his mate to torch his Tassie home to cash in on the insurance has appealed his convictions. THE OUTCOME >>

A MAN who hatched a plan with his mate to torch his Clarendon Vale home to cash in on the insurance has failed to have his convictions overturned, in what has become a precedent-setting case for Tasmania.

For the first time since 1997, the Court of Criminal Appeal convened a bench of five judges to review the law, making a determination over whether the common law doctrine of a “joint criminal enterprise” was applicable in Tasmania.

On Tuesday, the court published its judgment dismissing David Shaw’s appeal against both his convictions and his two-year jail sentence, with a one-year non-parole period.

Chief Justice Alan Blow said on June 27, 2016, Shaw’s house caught fire and was badly damaged, with a repair bill exceeding $260,000 – but Coles Insurance investigated and rejected his insurance claim.

Shaw – then 31 – and his friend, Michael Wells, were jointly charged with arson and attempting to dishonestly acquire a financial advantage, and were found guilty by a jury.

Shaw argued in his appeal that the trial judge shouldn’t have directed the jury on the basis that the doctrine of a “joint criminal enterprise” was applicable in Tasmania.

Chief Justice Blow said there was no evidence upon which the jury could find or infer that Shaw had taken any active part in starting a fire or setting fire to the building, but there was circumstantial evidence suggesting he had “both a motive and a plan” to torch it and make a fraudulent insurance claim.

“The Crown sought a conviction on the arson charge solely on the basis that the appellant and Mr Wells were parties to a joint criminal enterprise,” he said.

The trial judge directed the jury that it could find Shaw guilty of arson if it was satisfied beyond reasonable doubt that he and Wells had “reached an understanding” to commit the crime, with each responsible “for what the other one did”.

But Shaw argued on appeal this was a “misdirection”, claiming the common law concept was not the law in Tasmania, and that he had not actively participated in the crime.

Chief Justice Blow, plus Justices Helen Wood, Stephen Estcourt, Robert Pearce and Michael Brett considered examples of the crime from across Australia and overseas, reaching the conclusion that Shaw had indeed proved the jury shouldn’t have been directed to reach a conclusion on the basis of a “joint criminal enterprise”.

The torched Clarendon Vale property. Picture: Tasmania Police

However, they said the appeal still failed because “no substantial miscarriage of justice has actually occurred”.

Chief Justice Blow said irrespective of the error, the jury’s attention had been directed towards the critical issues – that there had been a “joint plan” – and the verdict of guilty on the arson charge was “inevitable”.

“ … the outcome of the case has not been affected by the legal error,” he said.

The judge also dismissed Shaw’s appeal to reduce the length of his sentence, noting it was “a reasonable one”.

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