New South Wales District Court CITATION: Amne Taha v Westpac General Insurance Limited [2007] NSWDC 270 HEARING DATE(S): 20/11/07 - 23/11/07 JUDGMENT DATE: 13 December 2007 JURISDICTION: Civil JUDGMENT OF: Rolfe DCJ DECISION: Verdict and Judgment for the Defendant. CATCHWORDS: Claim on House Insurance Policy for fire damage - Insurer Contended that Plaintiff or person acting with her consent lit the fires - Burden of Proof - Circumstantial Evidence - Unknown random arsonist scenario - Evidence revealing consciousness of guilt LEGISLATION CITED: Evidence Act 1995 MMI General Insurance Ltd v Baktoo (2001) 48 NSW LR 605 At 613 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 Rejfek v McElroy (1965) 112 CLR 517 at 521 Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 at 535-539, 570 and 599 CASES CITED: Transport Industries Insurance Co Ltd v Longmuir (1997) 1 VR 125 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Jones v Dunkel (1959) 101 CLR 298 Winstanley v Allianz Insurance Co Ltd (1984) 3A NZ INS CAS 60-567 Edwards v R (1993) 178 CLR 193 PARTIES: Amne Taha (Plaintiff) Westpac General Insurance Limited (Defendant) FILE NUMBER(S): 300/07 COUNSEL: M Tibbey (Plaintiff) D McLure (Defendant) JUDGMENT 1 In February 1999 the plaintiff, Amne Taha, and her husband, Fayez Taha, purchased the property known as 278 Clyde Street Granville (the "Property"). The plaintiff and her husband borrowed $170,000 from Westpac Banking Corporation to assist them in the purchase of the Property. 2 The plaintiff and her husband purchased the Property as joint tenants and so the plaintiff became the sole owner of the Property on 11 May 2005 when Mr Taha died. 3 The plaintiff and her husband entered into a home and contents insurance policy with the defendant. The policy included cover for loss caused by fire. 4 Two fires occurred at the Property, the first on 27 October 2002 and the second on 28 October 2002. 5 At the time of the fires, the Property was insured for $136,300 and the contents for $31,500. 6 The defendant accepts that if the plaintiff is entitled to indemnity under the policy for her claims arising under the fires, she is entitled to recover $167,800, which is the amount claimed by the plaintiff in the Statement of Claim filed on 30 January 2007. 7 The defendant refused indemnity under the policy, relying on the following term of the policy (exhibit 1 p8): "We may refuse or reduce a claim, or cancel this policy, or do both if you fail in your Duty of Disclosure as detailed in this booklet on page 4, or if you make a fraudulent claim, or if the loss, damage, injury or legal liability is intentionally caused by you or by a person acting with your consent." 8 The defendant contends in paragraph 6 of its defence that : (a) The two fires occurred at the Property within a 24 hour period. (b) The circumstances of the first fire were such that the only reasonable conclusion is that the fire was deliberately lit. (c) The police investigation (including the results of laboratory tests undertaken at the Property) indicated that the probability was that both fires were deliberately lit. (d) There was no evidence of an accidental cause for the fires or of a break-in; and (e) The plaintiff or the plaintiff's husband, or persons unknown to the plaintiff or to the plaintiff's husband were the only persons with a real opportunity to start the fires. 9 Accordingly, the defendant alleges that the damage to the Property and contents was intentionally caused by the plaintiff or the plaintiff's husband or a person acting with his or her or their consent. Therefore, the defendant is not liable under the policy. 10 Ms M Tibbey appeared for the plaintiff. Mr D McLure appeared for the defendant. Both counsel provided the Court with written submissions dated 23 November 2007. 11 Counsel for the plaintiff did not dispute the defendant's contention that if the Court found that the plaintiff or her husband or a person acting with her or his consent caused the fires to be lit that the defendant was entitled to refuse indemnity: MMI General Insurance Ltd v Baktoo (2001) 48 NSW LR 605 at 613. 12 Counsel for the defendant acknowledged that the defendant had the onus of proving the plaintiff's claim was fraudulent. Both counsel agreed that the standard of proof was that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, as explained in Rejfek v McElroy (1965) 112 CLR 517 at 521. 13 The defendant relies on circumstantial evidence in seeking to discharge its onus in this case. In particular, the defendant relies on a combination of events: Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 at 535-539, 570 and 599; see also Transport Industries Insurance Co Ltd v Longmuir (1997) 1 VR 125, and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155. It is therefore necessary to examine the circumstantial evidence relied on. 14 The report of the NSW Fire Brigade is at exhibit 1 p 41. It discloses that the Brigade arrived at the Property at 12.59 pm on 27 October 2002. Smoke was coming through a front bedroom window and there was a lady who had been passing by who was standing on the veranda using a garden hose to extinguish the fire through the window. The front door of the Property had been forced open by passers by. 15 Members of the crew entered the house, searched it and extinguished the fire. There was no one home but the back door and windows were open. Officer Castle observed the television was on and the elements on the stove were on. The report records: "The fire started in the front bedroom behind the left-hand side of a dresser. There was a single point of burning damaging the dresser, its contents and the bedroom wall, the rest of the room suffered heat and smoke damage. The remainder of the house suffered minor smoke damage." 16 The NSW Fire Brigade Fire Investigation Unit was called to the scene. Officer Walshe prepared its report (exhibit 1 p 47) and recorded in it: "When the neighbour used the garden hose to ext the fire there was no one home but the stove was on – all cooking rings (elec) with a frypan of oil on the stove and food prepared for cooking on the bench." 17 Mr Walshe gave evidence. He was a compelling witness who was unshaken in cross-examination. 18 In his affidavit of 20 August 2007 (exhibit 2 p 9), Mr Walshe said that he had been employed by the NSW Fire Brigade for 31 years and was attached to the Brigade's Fire Investigation and Research Unit. He arrived at the Property at 2.01pm on 27 October 2002. The fire scene was a small area within the front north-east bedroom. The fire damage was located behind a dressing table which was against the west wall of the bedroom. Mr Walshe said he examined the fire damage and found the following: (a) The fire damage involved the rear of the left dresser of the dressing table and the wall behind the dresser; (b) The gap between the wall and the rear of the dresser was small, and it was not possible to reach down behind the dresser. The space was approximately three to four centimetres; (c) The fire had burnt away the backing board behind the left hand set of drawers causing fire damage to the rear section of the drawers, the contents of the drawers and paper work on top of the dressing table; (d) The fire had burnt the skirting board behind the dresser and a section of the plaster wall covering. (e) The timber studs and noggins behind the wall covering had also sustained some fire damage. Examination, however, showed it was a result of the fire behind the dresser and there was no fire activity within the wall cavity prior to the fire behind the dresser; (f) There was no electrical wiring or power outlets in the fire damaged area. The only power point within the room was located behind the bed head in the north wall. The only item connected to the power outlet was a radio fitted into the bed head; and (g) A small area of flooring was burnt beside the skirting board. This area had burnt paper debris beside the skirting board. 19 Mr Walshe said he could find no accidental cause for ignition of the fire. There was no electrical wiring or power outlets or electrical appliances or light fittings close to the area of the origin of the fire. The area between the dresser and the wall was very narrow and there was no evidence of any smoking material or candles or incense within the room. The fire burn pattern was consistent with paper burning behind the drawer area of the dresser. Mr Walshe concluded, taking these matters into account and due to lack of physical proof of ignition, that the fire was probably deliberately lit. 20 Senior Constable Armgardt said in his affidavit of 15 November 2007 (exhibit 1 p 39) that he was called to the scene of the fire at 1.30pm on 27 October 2002 and entered the front bedroom where the fire had occurred. He observed there was a queen size bed, a wardrobe and dressing table. The wardrobe contained numerous clothing items and the bedroom generally appeared to be well furnished. He saw a dressing table that was pulled away from a wall, directly opposite the front bedroom window. There was fire damage across the wall and extensive charring to the timber frame behind the dressing table. In the kitchen, Senior Constable Armgardt observed a frying pan containing an oily substance and a kettle. The stove had been turned off. 21 Mr Kelly, an experienced fire investigator, gave expert evidence. He too, was a compelling witness who was unshaken in cross-examination. 22 In his affidavit of 19 November 2007 (exhibit 2 p 53), Mr Kelly said that on 1 November 2002 he took samples of debris at the Property. Sample 5 was taken from the timber floor in the location of the first fire (see photograph 11 at exhibit 2 p 163). 23 Dr Stern gave evidence that he is a Fire Investigation and Chemistry Consultant who has, for the past 25 years, carried out analyses of fire debris samples for the presence of accelerants using the analytical instrumentation of the mass spectrometry laboratory at the University of Technology Sydney. Mr Kelly sent Dr Stern nine samples of fire debris. Dr Stern found that sample 5 contained small but significant amounts of an ignitable liquid consistent with petrol or paint thinner. Annexure D to his affidavit of 29 October 2007 (exhibit 2 p 34) is a record of the result of Dr Stern's analysis. 24 In his report dated 4 November 2002 (exhibit 2 p 62) Mr Kelly said in paragraph 4.1 that when he examined the timber floor at the location of the first fire he identified a localised burn pattern at floor level. He observed burning to the floorboards with charring in the 150mm wide timber skirting board. There were no electrical connections or other means which could have caused ignition. Mr Kelly observed that the back of the set of drawers at the southern end of the dressing table was severely affected by fire with burn patterns exhibited by the clothing in the drawers indicative of the fire developing at floor level and moving up through the clothing through the back of the dressing table. Mr Kelly could not identify any cause of the fire through accidental or natural means and as a result of the examination that he conducted and the elimination of any other possible cause, he was of the opinion that the fire behind the dressing table had been deliberately lit. In coming to this conclusion he took into account what Mr Taha told him, namely, that no candle or other similar material had been left in the bedroom. Mr Kelly identified the remains of the light fittings, which had been near or on the dressing table and concluded that the plug was unplugged at the time of the fire and therefore there was no evidence of a possible electrical cause. 25 The plaintiff relied on Mr Café as her expert. Mr Café is a Chartered Chemist and Forensic Fires Examiner. Mr Café's report is annexure B to his affidavit sworn on 8 November 2007 (exhibit A tab 4). 26 In cross-examination Mr Café conceded that he prepared a draft report in March 2007 and in that report he expressed the view that the first fire was probably deliberately lit. Mr Café had recanted from that opinion when he was informed that there were smokers who lived in the Property. My assessment of Mr Café's evidence was that he merely speculated, based on the fact that there was some smokers in the family, that a cigarette butt or ember could have started the fire on top of the set of drawers or in one of the drawers. The basis of this speculation was the possibility that someone could have been in the bedroom before the fire holding a lit cigarette. However, the police statement of Mr Taha (which Mr Café had referred to in providing his expert opinion) recorded that the family did not normally smoke in the bedroom. In this respect there was no evidence whatsoever of anyone in the Taha family smoking in the bedroom before the fire occurred. Apart from that, Mr Kelly, when pressed about the matter in cross-examination, was firmly of the opinion that it was highly improbable that a cigarette could have ignited the timber floor and skirting board. Mr Walshe agreed and said that it was improbable that the fire started on the top of the dressing table or in the drawers themselves. This was because there was a single point of burning behind the dressing table. 27 The plaintiff gave evidence in her affidavit of 16 July 2007 (exhibit A tab 1) that on 27 October 2002 she and her late husband and three of their sons were visiting her daughter, Gawy, at her home at Guilford. Whilst they were there, the plaintiff's son, Mohammed, rang the plaintiff from her daughter Zoey's fruit shop at Auburn. Mohammed purportedly said: "Mum, don't you know our house is on fire. Where are you now?" The plaintiff said: "At your sisters' house. Who told you that the house is fire? (sic)" Mohammed said: "A friend of Mohammed (my daughter's boyfriend). He saw fire trucks and police cars at our place when he was driving by just a while ago." 28 The plaintiff said that, following this conversation, she and her husband were driven to their home where the fire brigade and police were already in attendance. The plaintiff said she went into the house to inspect the damage and felt a very strong heat from the ceiling and told the fire officers that she did not think the fire was extinguished properly. (There is no contemporaneous record in evidence which supports this assertion). A fire brigade officer told the plaintiff that such heat was normal and it would take about five or six hours to cool down. The plaintiff said she noticed a pervasive smell of smoke in the house. 29 For reasons which I will give later in this judgment, I do not accept the plaintiff's evidence about the matters referred to above, other than the fact that she was at her daughter's house at the time the first fire occurred. 30 The plaintiff's son, Mohammed, said in his affidavit of 17 July 2007 (exhibit A tab 2) that on 27 October 2002 he was at Auburn visiting his sister in her fruit shop, which she owned with her boyfriend Mohammed Zreika, when he received a telephone call in the afternoon from one of Mr Zreika's friends. That led him to go to the family home where the Fire Brigade was already in attendance. 31 Apart from the fact that I am satisfied that Mohammed was at his sister's fruit shop on 27 October 2002, for reasons given later, I do not otherwise accept his evidence. 32 The plaintiff's husband, Fayez Taha, said in his statement to the police on 24 November 2002 (exhibit A tab 13) that he and his wife were the last two people to leave the house on 27 October 2002 and they made sure all the doors and windows were locked before they left. They also made sure the stove in the kitchen was turned off, as well as any other electrical appliances, including the television in the lounge room. He also referred to the fact that his son Mohammed, daughter Zoey and her boyfriend Mohammed smoked cigarettes, but no one normally smoked in the bedroom. Smoking only went on in the lounge room and he and his wife made sure any cigarettes were put out before they left the house on 27 October 2002. 33 At about 4.55 am on 28 October 2002 a second fire engulfed the house and, for all intents and purposes, destroyed it. The Fire Brigade Incident Details Report (exhibit 1 p 58) discloses that when the Fire Brigade arrived at the scene the house was well and truly on fire and neighbouring properties were in danger. The Brigade found suitcases packed with clothes stacked together in the rear yard of the Property. 34 In his affidavit of 14 August 2007 (exhibit 2, p 1), Mr Ansett, an investigator employed by NSW Fire Brigade who has been employed by NSW Fire Brigade for 15 years and for the last eight years has been an investigator, said that on 28 October 2002 he went to the Property with the Fire Brigade's accelerant detection canine, referred to as an "ADC". The ADC was trained to detect minute quantities of petrol, evaporated petrol, kerosene, diesel and mineral turps. In this case the ADC detected accelerant at the tap of a 20 litre tin in the lounge room, as well as at a large hole that had burned through the floor in the lounge room. 35 As mentioned above, Mr Kelly took a number of debris samples from the house on 1 November 2002 which were given to Dr Stern for testing. Sample 3 was taken from the same location as the second point at which the ADC had detected accelerant in the lounge room. Sample 6 was taken from debris on the top of the bed in the main bedroom. Dr Stern found that four of the samples contained small but significant amounts of an ignitable liquid consistent with petrol or paint thinner. 36 Although it was suggested that the samples tested by Dr Stern may have been contaminated, this is not supported by the evidence. Furthermore, I am satisfied that Mr Kelly and Dr Stern went about their tasks in a way which was safe and avoided contamination. 37 There is a dispute between the parties' experts as to whether the second fire was a continuation of the first fire due to it not having been fully extinguished, or whether the second fire was deliberately lit. 38 The defendant's expert, Mr Café, suggested that the first fire may not have been properly extinguished because the person who had attempted to do so was not a trained fire fighter. However, I am comfortably satisfied, based on the evidence of Mr Walshe and the Fire Brigade's report (exhibit 1 p 41), that the brigade, on arrival, completed the extinguishment of the fire using their own apparatus. Mr Walshe's evidence in his affidavit (exhibit 2 p 9) was that he examined the wall cavity some hours after the first fire had been extinguished and found no fire activity. Specifically, in his report (exhibit 1 p 45), Mr Walshe recorded that the burning was only to the outside of the plaster and that there was no damage to the wall studs. 39 Mr Walshe is an experienced fire investigator and he gave his evidence in a straightforward, disinterested way. I have no reason to doubt at all any of the observations made by Mr Walshe. In that respect, Mr Café's theory that the Fire Brigade had not properly put the fire out, was premised on the incorrect assumption that neither Mr Walshe nor any other officer conducted any examination of the wall cavity beyond what can be seen in exhibit 3 (photograph 1 to Mr Café's report). In fact, Mr Walshe explained that his standard practice was to remove the plaster covering the structural timbers in the area around where a fire occurred so that he could determine whether there was any damage and also observe whether there was any electrical wiring. Mr Walshe said he believed he had followed his standard practice and removed the plaster up the wall until he could see clean timber (exhibit 2 p 53 para 9). Mr Walshe also explained that the Fire Brigade's standard practice was to douse the area of the fire once he had completed his examination. Although Mr Walshe could not recall five years after the fire whether he observed this happening, he was emphatic that this was the Fire Brigade's standard procedure and again I have no reason to doubt his evidence and the Court comfortably draws the inference that the procedure was followed. 40 In reaching the above conclusion I have also taken into account the evidence of Mr Malpass, the Fire Investigation Unit officer who examined the scene after the second fire. Mr Malpass' report is in evidence at exhibit 1 p 63. He records the following: ". Fire day before – not a re-ignition of original fire as plaster was pulled from wall and fire had not extended past roof place." 41 I was unimpressed with Mr Café as an expert witness. In terms of the way in which he gave his evidence and the evidence itself, I have concluded that he was not a truly disinterested expert, but a person who was prepared to say and do anything to support the plaintiff's claim. In that respect, his principal theory that the second fire was caused by the first fire not having been properly extinguished and was caused by smouldering in the wall cavity, continuing after the first fire and leading to it spreading into the roof, was pure speculation on his part. To support the theory he claimed that the "most reliable evidence to indicate the area of fire origin of the second fire is the eye-witness observations that the fire was first observed in the roof" (exhibit A tab 4 p 9 of report). I accept the defendant's submission that this premise was fundamentally flawed. First, it assumed the plaintiff was telling the truth and I do not accept her evidence. Secondly, it assumed, without foundation, that even if the plaintiff first saw fire in the roof space, there was no fire anywhere else in the house before then. Thirdly, it ignored the evidence of Zoey Taha, which I accept on this point, that when she opened the door to her bedroom, fire blew in her face. When she exited the house she saw the fire coming out of the windows. In cross-examination Mr Café conceded he had assumed that in between the plaintiff's observations and those of Zoey Taha, the fire had spread from the roof into the main body of the house. However, there is no evidence to support this assumption. 42 Apart from the above, when he was cross-examined, Mr Café agreed that on all the assumptions set out in exhibit 10, his theory that the first fire was not properly extinguished was improbable. In that respect, I am comfortably satisfied, based on the Court's findings set out above, that each of the assumptions in exhibit 10 have been made out. 43 In rejecting Mr Café's speculation that the second fire was caused by the first fire continuing to smoulder in the wall cavity, I have taken into account and accepted other evidence of Mr Walshe and Mr Kelly. In his affidavit of 19 November 2007 (exhibit 2 p 14 para 13) Mr Walshe said that after reviewing the photos which were in evidence, he concluded that the spread of damage throughout the house as a result of the second fire was inconsistent with Mr Café's theory that that fire started in the wall cavity at the site of the first fire. The reason was that if the fire had started at that location there would have been much more damage to the structural timbers and to the roofing timbers and that photographs relied on by Mr Café in his report did not demonstrate this. Moreover, whilst there was substantial damage above the door shown in the top left corner of photograph 2 of Mr Café's report, Mr Walshe was of the opinion that this damage was caused by fire coming from the lounge room. In addition, the vertical timber to the right hand side of the door where the first fire occurred was relatively undamaged. Had there been a fire smouldering in that timber for almost 16 hours, Mr Walshe was of the opinion that the timber would have been almost completely consumed by the fire. This would have weakened the ceiling structure at that point, most likely causing a ceiling collapse. Apart from this, if the second fire had started in the wall cavity at the site of the first fire and then spread into the roof, Mr Walshe was of the opinion that the main bedroom would have sustained significantly more damage, particularly at a lower level through the roof structure collapsing into the room. This had not occurred as the photographs in evidence demonstrated. 44 Mr Kelly, in his affidavit of 19 November 2007 (exhibit 2 p 55) said, with reference to the photographs taken by Mr Café, that if the fire had penetrated into the internal structural timbers he would have expected to see significantly more damage than appeared in photograph 1. He would have expected to see greater damage to the structural timbers, more evidence of soot development and greater damage to the dressing table. This had not occurred. Further, in Mr Kelly's opinion, photograph 2 in Mr Café's report, which had been taken by Mr Kelly after the second fire and was photograph 63 in Mr Kelly's first report, put almost beyond doubt that the second fire was not caused by smouldering in the structural timbers. The photograph showed that the structural timbers were relatively undamaged and that the rear side of the plaster wall was still relatively undamaged, especially higher up. The lack of damage was completely inconsistent with the theory that the second fire propagated from there. 45 As a demonstration that Mr Café's theory was nothing more than speculation, when he was invited in cross-examination to indicate on photograph 2 to his first report the location in the wall cavity where he believed it was probable that the fire had smouldered for the 16 hours intervening between it and the second fire, Mr Café lamely said the photograph did not enable him to do so and he conceded that his theory was at most a possibility only. 46 That Mr Café was speculating and clutching at straws is demonstrated by his suggestion that the site may have been contaminated by red paint. He arrived at this suggestion by looking at some photographs where the driveway to the house appeared to have something red on it. However, when the original photograph (exhibit 12) is looked at, it is abundantly clear that the driveway only had water on it. 47 The Court's close examination of the facts referred to above results overwhelmingly in the conclusion that the first fire was deliberately lit. There was a single point of burning behind the dressing table. There were no power points or electrical wiring near that location. There is nothing which suggests anything other than human intervention. Moreover, accelerant was detected in the sample of timber from the floor at the position of that fire. Apart from this, there was a pan of oil left on the stove and all the elements were on. These matters demonstrate that there was a deliberate plan to cause the whole house to catch on fire, although the attempt to do so in the kitchen failed. 48 Likewise, the overwhelming conclusion which the Court has reached is that the second fire was deliberately lit. There is no innocent explanation for the presence of accelerant in four different locations around the house. Although various matters were put to Mr Walshe and Mr Kelly concerning possible contamination, at their highest, they were most remote possibilities. It was an improbable coincidence that locations S3 and S4 in the lounge room could have been contaminated and locations in the kitchen and doorway, S1 and S2, were not. 49 With regard to the second fire, the plaintiff said that at about 5pm on 27 October 2002 she went to the house of her sister-in-law, Lilia, for dinner. She said she planned to stay at her sister-in-law's house with her husband and children because of the smoke in her own house. The plaintiff's evidence was that at 11.30pm that night her daughter Zoey told her that she and her boyfriend were going home to sleep. The plaintiff claimed that she could not sleep and at about 1am on 28 October 2002 she woke her husband and told him to take her home because she did not want Zoey and the boyfriend to be alone in the house. Accordingly, the plaintiff and her husband and their three sons, Mohammed, Ahmed and Abdul went back to the Property. The plaintiff said she was sleeping on a sofa in the lounge room when she was awakened by the sound of a loud explosion. She smelled smoke, could not see anything because of it, but was able to help her husband leave the house through the back door. Once outside she saw smoke and fire coming out of the roof. She banged on the window to wake the boys up and they came out. Her daughter and her daughter's boyfriend were able to get out of the house through a window. The plaintiff said she was affected by smoke and taken to hospital. 50 Mohammed Taha's evidence was that he and his brother slept in their room at home that night. He woke up because there was a big fire in their room, a couple of metres away from him. He heard his mother screaming, grabbed his brother and got out through the window. 51 Zoey Taha's evidence was that she rang her mother at 11.30pm on 27 October 2002 to tell her that she and her boyfriend, Mohammed Zreika, were going back to the Property to sleep there and that her mother said it was okay. Zoey's evidence was that there was a bad smell when she got into the house and it was still warm. She claimed that she shut the door into her bedroom because she could not endure the smoke. 52 Zoey said that she woke up because she thought somebody was knocking on her door and she could hear her parents screaming out her name. When she opened the door fire blew in her face. She shut the door and woke Mohammed and they escaped through the window. 53 I do not accept the evidence of the plaintiff, Mohammed Taha or Zoey Taha. 54 The plaintiff and her husband had a clear motive to light the fires because they were in dire financial straits. The plaintiff had not been employed for many years. The arrangement she had with her husband was a traditional one. The plaintiff looked after the home and attended to the needs of the children whilst her husband worked. Unfortunately, in this respect, Mr Taha had a severe stroke on 16 June 2001, resulting in paralysis to half his body, a speech impairment and slow physical movement. The result was that he had to stop work as a taxi driver and could not do any other work. This had disastrous financial consequences. Mr Taha went on to a disability pension. At the time of the fires, Mr Taha was receiving $172 per week in benefits. The plaintiff was receiving $169 in benefits (exhibit 1 p 88, 90). In this respect, one of the reasons I have not accepted the plaintiff's evidence is that she insisted in the witness box that the amount of benefits she was receiving was more than $169 per week. This simply does not stack up with the Centre Link records which were in evidence. 55 Thus, it will be seen that the plaintiff and her husband were endeavouring to support themselves and their six children with benefits of $341 a week ($1,478 monthly). At the same time, the plaintiff and Mr Taha owed Wespac $17,198.23 on their renovation loan with a monthly repayment of $200 (exhibit 1 p 121) and they owed Westpac $142,251.80 on their home loan with a fortnightly repayment of $460.15 (exhibit 1 p 152), a total in monthly payments to Westpac of $1,197.00. The statements for the plaintiff and her husband's savings account show they were in deep financial difficulty. As at 25 October 2001, there was a nil balance (exhibit 1 p 137). 56 Another reason I have not accepted the plaintiff's evidence is that she denied that she and her husband were in serious financial difficulties when documentary evidence overwhelming leads the Court to such a conclusion, bearing in mind the number of children who were looking upon the plaintiff and her husband to support them. In this respect, I do not accept the evidence of their son Mohammed Taha about the amount of money which he alleged he gave his parents. This is because I do not regard him as a truthful witness. 57 The plaintiff also said on her first day in the witness box that she did not recall speaking to her son Mohammed whilst he was at her daughter's fruit shop on the morning of 27 October 2002. Notwithstanding the warning given to her by the Court at the end of her evidence on that first day, the next morning the plaintiff had a remarkably clear recollection that she telephoned her son whilst he was at his sister's fruit shop on 27 October 2002. She recalled using her mobile phone, but when pressed about the mobile number, could not recall it and said she had changed it. All of this evidence was wholly unconvincing and the change in the evidence was given, in my assessment, because the plaintiff realised there may have been an inconsistency between her evidence and that of her son. In this respect, the plaintiff asserted in the second day of her evidence in the witness box that her son told her that the house was on fire and she had a clear recollection of that. It beggars belief that she had no recollection about the phone call the day before when giving evidence and then, overnight, her recollection had not only returned, but it was clear. 58 The plaintiff said that at 11.30pm on 27 October 2002, when she was staying at her sister-in-law's house, that her daughter Zoey came to that house to collect a key so she could go home. This version of what occurred was not supported by Zoey's evidence, which was merely to the effect that she telephoned the plaintiff at about that time and said that she and her boyfriend were going back to the family home. This portion of the plaintiff's evidence, to my mind, also demonstrates that she not give the Court a truthful account of what occurred on 27 and 28 October 2002. 59 I do not believe the plaintiff's evidence about going home at 1am in the morning because she was concerned about Zoey and her boyfriend being in the home. If the plaintiff had been concerned, the Court infers she would have gone back to the house with Zoey when Zoey allegedly picked up the key at 11.30pm at the plaintiff's sister-in-law's home. In any event, the evidence establishes that Zoey and her boyfriend had slept regularly together at the Property. I do not believe the plaintiff, who had an unwell husband and two of her young sons asleep, when she said she needed to go home at 1 am in the morning to attend to Zoey. The inference the Court draws is that the reason the plaintiff and her husband and their son Mohammed went home at that time was to play a part in the lighting of the second fire using some form of accelerant. 60 The plaintiff also asserted, when first asked about the suitcases in the backyard, that they were empty. She recanted this evidence and said the suitcases were not empty because, in my opinion, she was well aware that there were clothes in them. When confronted with the inconsistency in this evidence, the plaintiff then said she could not remember having told the Court, just a minute or so beforehand, that the suitcases were empty in the first place. 61 Mohammed Taha was a devious and untruthful witness. Although well aware that his father had ceased work because of the stroke which had afflicted him, he claimed he did not know his parents were in financial difficulties and in the next breath told the Court that out of an apprentice's wage of nearly $200 - $240 per week he gave his parents somewhere between $180 - $200 per week because they needed it. 62 Mohammed Taha at first could not remember details of the armed robbery offence he had committed only a few years previously. He was vague about what exactly happened but, when pressed, conceded that he had used a replica pistol, forced a woman to the ground and threatened to kill her unless she handed over her wallet and phone. These matters only emerged after strong cross-examination of Mohammed Taha, who at first denied threatening to kill his victim and could not remember whether the victim was male or female. 63 Mohammed Taha was extremely vague and deceptive in his evidence about his movements on the morning of 27 October 2002. He claimed that when he was in his sister's fruit shop on the morning of 27 October 2002 someone who was a friend of Mohammed Zreika phoned him. The person did not say who he was, although he told Mohammed Taha that the family home was on fire. Mohammed Taha was unable to explain to my satisfaction how it was that he had no idea who it was who had made the phone call, even though the person was a friend of Mohammed Zreika and one would have expected in the circumstances that he would have known who it was or made himself aware of the person's identity because of the significance of the news that he received at the time. 64 Next, Mohammed Taha said he went to the family home in the car of a mate whose name he could not recall and who simply happened to turn up at the fruit shop and just drive him to the family home. Mohammed Taha could not recall the type of car he went in. 65 While giving the above evidence, my assessment of Mohammed Taha was that he was extremely defensive and trying to protect himself. He had been given a certificate under s 128 of the Evidence Act 1995 and the only reason he was trying to protect himself, in the Court's assessment, was to cover up any role he may have had in lighting either or both of the fires in order for his mother to be able to claim on the house insurance. 66 Mohammed Taha said he could not recall speaking to his mother whilst at his sister's fruit shop. This evidence was totally inconsistent with the evidence given by his mother that she phoned him. Both witnesses were untruthful about this aspect of the matter. 67 Mohammed Taha was also evasive about his movements on the evening of 27 October 2002. First of all, after the fire earlier that day, he could not remember what he did. He remembered being at his Aunty Lila's house that night, but was evasive when he was asked whether the family had planned to stay the night there. He went back to the house with his mother and father and two brothers, Ahmed and Abdul, who were two and four years younger than he. He said that he slept in the same room as those two brothers, which was inconsistent with what he said in paragraph 8 of his affidavit of 17 July 2007 (exhibit 2 tab 2), namely, that he slept in the room with only one of his brothers. 68 I also do not accept the evidence of Zoey Taha because she said that in October 2002 she did not know her parents were in financial stress, when at that time she was an adult who owned a fruit shop at Auburn with her boyfriend, so she was aware of financial matters. 69 Zoey Taha claimed that she found out from Mohammed Zreika about the fire and that he had been told by someone else. Importantly, at first she could not remember if her brother Mohammed Taha was in the fruit shop, when it is clear that he was at the time. Then she changed her evidence and said that Mohammed Taha was in fact present in the fruit shop, but could not recall if he had spoken on the phone to the plaintiff. She said she would remember if her brother had told the plaintiff that the house was on fire. 70 Zoey Taha agreed that she loved her mother. She maintained she was not worried whether the plaintiff received any money out of the Court case. This was clearly untrue, when Zoey was aware of her mother's plight. I therefore reject her evidence. 71 The plaintiff did not call Mohammed Taha's friend who supposedly drove him from the fruit shop at Auburn. That friend could have given evidence about Mohammed Taha's movements on the morning of the fire. None of Ahmed Taha, Abdul Taha or Mohammed Zreika was called. All were present at the Property at the time the second fire occurred, according to the plaintiff. No explanation was given as to why these important witnesses were not called. The Court infers that their evidence would not have assisted the plaintiff. (Jones v Dunkel (1959) 101 CLR 298). 72 There is no evidence of the plaintiff or Mr Taha or any of their children having an enemy with a motive for burning down the house. In this respect, counsel for the plaintiff maintained it would be irrational for the plaintiff, her husband, or any member of their family to burn the house down and it was more likely that an unknown random arsonist did it. The latter is a totally improbable scenario and one which is not supported by the facts. I therefore reject it. The comments made by Winneke P. in Transport Industries Insurance Co Ltd v Longmuir (1977) 1VR 125 at 131 are apposite: "The possibility that some unknown person was able to penetrate the house behind the back of the respondent without his knowledge, and then, having spread petrol and lit the fire, quietly made his exit unseen on foot to some unidentified vehicle outside the premises only has to be stated to reveal its improbability. In this regard I share the sentiments expressed by Grey J in the case of Winstanley v Allianz Insurance Co Ltd (1984) 3A NZ INS CAS 60-567 where his Honour in a case not dissimilar to this one said: 'In considering possible innocent hypothesis, one is driven to the view than an unknown third party entered the house by a broken window after the departure of the first plaintiff. He then poured turpentine on the floor and started the fire. He then made his getaway unnoticed. This hypothesis, which found no support in the evidence, apart from the broken window, is so improbable I feel bound to reject it. In my view, one can only elevate such hypotheses to the status of relevance by adopting a process of reasoning which is inconsistent with the appropriate or evaluation of circumstantial evidence and which ignores the standard of proof in accordance with such an elevation is to be undertaken." 73 The plaintiff and her husband had the opportunity to light both fires or cause them to have been lit. They were both at the Property shortly before the first fire and they were there during the second fire. 74 Clearly, there was an attempt to start a fire on the stove because there was oil in the pan and the elements on the stove were on. It is improbable that an external, unrelated arsonist would attempt to start a fire in such a manner. Rather, the inference the Court draws in all the circumstances is that this was an attempt to start a fire and make it look like an accident. 75 The plaintiff and her husband had a clear motive to light both fires. Taking all of the evidence into account, I am comfortably satisfied that either or both the plaintiff and her husband lit both fires. The second one was clearly lit because the first attempt was a failure and the plaintiff or her husband or both of them were desperate to obtain funds to assist them in their dire financial circumstances. It is highly probable that the plaintiff or her husband or both of them were assisted in lighting both fires and in this respect I am comfortably satisfied that the person who assisted them was their son, Mohammed. He had the opportunity to assist because he was present at the house on the morning of the first fire and he was in the house at the time of the second fire. As I have found, he was an untruthful and deceptive witness, in particular about his evidence concerning getting to his sister's shop on the morning of 27 October 2002, how he found out about the existence of the fire and how he got back to the house. These inconsistencies in his evidence reveal a consciousness of guilt which support the Court's conclusion that Mohammed Taha was involved in lighting both fires (Edwards v R (1993) 178 CLR 193). 76 It follows that the defendant has made good its defence. In the result, there will be a Verdict and Judgment for the defendant. I direct that the exhibits be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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