Police v Kevin Francis Barlow (No 1) [2011] NSWLC 19

Local Court New South Wales

Medium Neutral Citation: Police v Kevin Francis Barlow (No 1) [2011] NSWLC 19 Hearing dates: 9-12/05/2011 Decision date: 13 May 2011 Jurisdiction: Criminal Before: Lerve LCM Decision: The accused is found not guilty of the charges in sequences 1 and 3 and guilty of the charges in sequences 2 and 4. Catchwords: CRIMINAL LAW - damage property by fire - whether dishonestly for gain - circumstantial prosecution case

EVIDENCE - co incidence - two fires at same property - evidence of deliberate lighting - whether such a similarity between two fires and the circumstances in which they occurred so as to be satisfied that the person who lit one fire must have lit the other Legislation Cited: Crimes Act 1900, ss 4B, 195(1)(b), 197(1)(b) Evidence Act 1995 Cases Cited: DAO v R [2011] NSWCCA 63 HML v The Queen [2008] HCA 16 R v AN (2000) 117 A Crim R 176 R v Ellis (2003) 58 NSWLR 700; 144 A Crim R 1; [2003] NSWCCA 319 R v Fletcher (2005) 156 A Crim R 308 R v Tektonopoulos [1999] 2 VR 412 R v Zhang (2005) 158 A Crim R 504 Category: Principal judgment Parties: Police Kevin Francis BARLOW Representation: Mr T Quilter (for the accused) Sgt G Rowe (Police Prosecutor) File Number(s): 2010/00350391

JUDGMENT 1On 12 May 2010 and on 14 June 2010 there were fires at a dwelling on the property 'Carinya' on Mitchell's Road, some few kilometres east of the town of Culcairn. The first fire was limited to the roof cavity and caused about $5,000 of damage. The dwelling was completely destroyed as a result of the second fire. The accused has been charged in respect of those fires. There are four charges that fall for determination. I note that at the beginning of the hearing of this matter on Monday 9 June 2011 the accused pleaded guilty to charges of Drive Unregistered Motor Vehicle, Drive Uninsured Motor Vehicle and Enter Inclosed Lands. Those matters are irrelevant to my consideration of the four outstanding and far more serious matters, and I ignore those minor summary matters for the purposes of my consideration of the remaining charges. 2The charges that remain for consideration are: (1)That (he) on 12 May 2010 at Culcairn in the State of New South Wales did dishonestly with a view to making gain for himself, the said Kevin Francis Barlow by means of fire damage property, (namely) dwelling house on the property 'Carinya' Mitchell's Road, contrary to s. 197(1)(b) Crimes Act, 1900, and (2)That (he) on 12 May 2010 at Culcairn in the State of New South Wales did intentionally or recklessly damage by means of fire, certain property, (namely) dwelling house the property of Sharon Lee Hart (nee Barlow), contrary to s. 195(1)(b) Crimes Act, 1900, and (3)That (he) on 14 June 2010 at Culcairn in the State of New South Wales, did dishonestly with a view to making gain for himself the said Kevin Francis BARLOW, by means of fire destroy property, (namely) dwelling house on the property 'Carinya', Mitchell's Road, contrary to s. 197(1)(b) Crimes Act, 1900 and (4)That (he) on 14 June 2010 at Culcairn in the State of New South Wales did intentionally or recklessly destroy by means of fire certain property, (namely) dwelling house on the property 'Carinya', Mitchell's Road, the property of the Commonwealth Bank of Australia. 3These matters are all criminal charges. Therefore before I can find the accused guilty on any one or more of the charges I would need to be satisfied of his guilt, and satisfied of that guilt beyond reasonable doubt. The words 'beyond reasonable doubt' are ordinary English words and are to be given their ordinary English meaning. No further elaboration is necessary or desirable. The onus is on the prosecution from beginning to end to prove its case and to prove it beyond reasonable doubt. There is no onus whatsoever on the accused. If I refer to the prosecution having to prove something, I am very much aware the standard is the criminal standard of beyond reasonable doubt. 4As part of the directions on the onus and burden of proof I also direct myself that suspicion, not even the gravest of suspicion can be a substitute for proof beyond reasonable doubt. 5Subject to what is contained within the paragraph immediately following this, each charge must be considered separately, and a separate verdict must be returned in respect of each charge. The evidence in respect of each charge must be considered separately. It is uncontroversial that there were two fires at the same premises, namely the residence at the property 'Carinya' some few kilometres to the east of Culcairn. Sequences 1 and 2 relate to the fire on 12 May 2010 and sequences 3 and 4 relate to the fire on 14 June 2010. 6The charges as set out above are in the order in which they appear (i.e. sequences 1 to 4 inclusive) on the court papers. It was made clear at the beginning of the case on 9 May 2011 that the prosecution relied upon sequence 2 as an alternative or a back up to sequence 1, and sequence 4 as an alternative or "back up" to sequence 3. Upon inquiry of both advocates it was agreed that I would adopt the procedure of firstly considering whether the prosecution had proved its case beyond reasonable doubt in respect of sequence 1 and sequence 3. If I were so satisfied I would not be required to give a verdict in respect of sequences 2 and 4. However, if I were not satisfied of the guilt of the accused in respect of sequence 1 I would then go to consider whether I was satisfied beyond reasonable doubt in respect of sequence 2. Further, if I were not satisfied of the guilt of the accused beyond reasonable doubt in respect of sequence 3 I would then go to consider whether the prosecution had proved its case beyond reasonable doubt in respect of sequence 4. 7As I have already directed myself, there is no onus on the accused. The accused in this matter did not give evidence. Therefore there are a number of essential directions I must give myself, and bear firmly in mind as I embark upon my task in assessing the evidence and determine whether the prosecution has proved its case. 8The accused is certainly not obliged to give evidence. As the tribunal of fact I cannot and must not draw any inference adverse to the accused by reason of the fact he did not give evidence. The onus is on the prosecution from beginning to end to prove its case and to prove its case beyond reasonable doubt. There might be many good reasons why an accused might not give evidence and I must not speculate as to what those reasons might be. The fact that the accused did not give evidence cannot be used by the prosecution, or indeed myself as the tribunal of fact, to plug or fill any gaps or holes in the prosecution case. For more abundant caution I remind and direct myself that no adverse inference can be drawn against the accused because he did not give evidence and that the onus is on the prosecution from beginning to end to prove its case beyond reasonable doubt. 9However, it is not the situation that the accused has remained completely silent in the course of the investigation. The accused submitted to being electronically interviewed by Detective Simmons. The accused maintains in the course of that interview that he was not responsible for either of the fires. The prosecution also rely on some of the answers in that interview to establish what the prosecution maintain are lies. I will return to this issue later when I come to summarise the contents of the record of interview 10It is not every syllable that is uttered in the course of evidence or every word that is written in tendered documents that the prosecution must prove beyond reasonable doubt. What the prosecution must prove beyond reasonable doubt are the essential elements or essential ingredients of the charge. Counts (or sequences) 1 and 3 are in identical terms, save as to the dates of the respective fires, and counts (or sequences) 2 and 4 are identical save as to the dates of the fire and the owner of the property. Accordingly, it seems to me that I need only direct myself as to the essential elements of a charge contrary to s 197(1)(b) of the Crimes Act 1900 and s 195(()(b) of the Crimes Act 1900. It seems that it is uncontroversial that between the two fires the Commonwealth Bank who was the mortgagee took possession of the property. This accounts for the difference in the nominated owner of the property. 11Section 197(1) of the Crimes Act 1900 provides: (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years. 12The essential elements or ingredients of the charges in sequences 1 and 3 are: (1)The accused; (2)Damaged or destroyed; (3)Property by means of fire (4)With a view to making a gain for himself; and (5)The accused was acting dishonestly. 13So far as the second element is concerned I note that the subject premises at 'Carinya' were damaged by fire in the first fire, but destroyed in the second fire that occurred on 14 June 2010. 14So far as the element of the accused acting dishonestly is concerned, I direct myself in accordance with s 4B of the Crimes Act 1900, which relevantly provides that "dishonest" means "dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people". 15I observe (at the risk of repetition) that it is not controversial there was a fire on 12 May 2010 that damaged the property at 'Carinya' and that there was a second fire on 14 June 2010 that destroyed the subject premises. The live issues in the matter that I have to determine is whether the prosecution have proved beyond reasonable doubt (1) that it was accused who set the fires causing the relevant damage or destruction, (2) the accused had a view to making a gain for himself, and (3) he was acting dishonestly. 16I now turn to the charges in counts (sequences) 2 and 4, namely the charges contrary to s 195(1) of the Crimes Act 1900. That section relevantly provides: 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. 17I raised with both advocates at the conclusion of addresses the issue of the accuracy and adequacy of these directions as to the essential ingredients of the charges. Neither advocate took apparent objection to these directions on the issue of the essential ingredients. 18The prosecution case is obviously that the accused's actions were intentional. Again, there is no issue between the parties that there was damage to the property on 12 May 2010 and the property was destroyed on 14 June 2010. The live issues in respect of the alternate or "back up" counts is whether the prosecution can prove beyond reasonable doubt it was the accused who was responsible for setting or lighting the fires and therefore responsible for the resultant damage. 19This case is one where the prosecution are relying on inferences. It is appropriate I direct myself in terms that a trial judge would direct a jury on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. As the matters that I am considering are criminal charges where the prosecution has the onus and burden of proving its case in each matter beyond reasonable doubt, as the tribunal of fact I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. As these are criminal charges that I am considering, as the tribunal of fact I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. 20The case that the prosecution brings against the accused is essentially circumstantial. In the circumstances of the case, noting that there are competing inferences as it has been presented to me the accused is entitled to a circumstantial evidence direction. The nature of the circumstantial case in the matters presently under consideration is very much in the nature of "strands of a cable" rather than "links in a chain". A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending on the nature of the circumstances relied upon when considered as a whole (not individually or in isolation) and the degree of clarity and certainty to which that evidence may lead inevitably to the conclusion that the prosecution has established its case. As the tribunal of fact I must not engage in conjecture or speculation. If I draw an inference adverse to and in favour of the Crown, it must be the only inference which, in my view, can be drawn beyond reasonable doubt. This being a circumstantial case I am unable to return a verdict of guilty in respect of any one or more of the counts that fall for my consideration unless I am of the opinion the guilt of the accused on the circumstantial evidence is not only an available conclusion but also the only rational and reasonable conclusion on the evidence. 21I turn now to the facts and circumstances surrounding the first fire, i.e. the fire that occurred on 12 May 2010. 22The accused was not the beneficial owner of the premises. His estranged wife, Sharon Lee Hart (as she now is) was the owner of the premises at least as at 12 May 2010. She and the accused were married in 1990, separated in 2007 and were formally divorced in 2008. The property at 'Carinya', Mitchell's Road, Culcairn was acquired in 2002 with finance being provided by the Commonwealth Bank, which held a mortgage over the property. Ms Hart lives in Sydney with her new husband Ronald Hart. There is obvious acrimony between the Harts and the accused. Ms Hart left 'Carinya' in about November 2007. There has been no finalisation of the matrimonial property. 23Ms Hart had difficulty in servicing the mortgage and ultimately voluntarily went into bankruptcy. The accused remained living at 'Carinya' although he did not contribute much to the repayments. According to the uncontradicted evidence of Ms Hart he contributed a total of $1,700 after separation, although initially he contributed $20,000 from a compensation payout. There were some negotiations (the accused offering to pay in the vicinity of $20,000) between the accused and Ms Hart, but it seems from the evidence of Ms Hart that she was not prepared to meet some of the conditions insisted upon by the accused. 24Further, Ms Hart gave evidence to the effect that in two different conversations in 2009 the accused threatened to burn down the premises. On the first of such occasions according to Ms Hart the accused maintained that he would set a fire using a candle which would set fire to other material after it burned down, and that it would look like and accident. On the second occasion Ms Hart sought permission from the accused for a valuer to attend the property. The accused threatened that if a "For Sale" sign was erected he would pull it down and burn the place down. Curiously, the threats included on both occasions that he would burn down the place with him inside the house. 25These threats form part of the circumstantial case put forward by the prosecution. As I observed in the course of submissions, sitting in the Local Court, particularly when dealing with applications for Apprehended Violence Orders the court often hears of threats made to burn down premises. The cross examination was to the effect that no such threat was made. Ms Hart was not shaken in her evidence. She was obviously anxious and nervous but I saw no reason to disbelieve anything she said. What removes the threats from the category of usual idle type of threat to which I have just referred is the contents of the first conversation where the accused gave or spoke of a method. The evidence of the threats are merely part of the circumstantial case. 26Both Mr and Ms Hart were cross-examined to the effect that they would like to see the accused in gaol over the fires. Both answered to the effect they would if he had done it. It was that qualification that both put on that answer that in my view added to their credit. Both gave evidence of being unable to insure the property as they were required to answer honestly a question by the insurance company as to whether there had ever been a threat made in respect of the property. This too, is one of the reasons why I accept the threats were made. 27The premises were insured by virtue of a policy taken out by the accused in 2009 with "Comminsure" through the Commonwealth Bank. Exhibits 3 and 4, the reports by the Loss Adjuster (Mr Robert Bowler) indicate that the policy number was [xxx xxxxxxx]. 28Further on the issue of insurance is the evidence of Chelsea Huggard contained within her statement, which is exhibit 52. Ms Huggard works at the Albury branch of the Commonwealth Bank and served the accused at 2.34pm on 20 April 2010. In the course of the business the accused was transacting he made an inquiry as to the date on which his home and contents insurance policy was to expire. Ms Huggard explained that it expired in July, but because of direct debits it would simply "roll over". It is significant that the accused inquired as to his insurance policy relatively close in time to the first fire. 29The Commonwealth Bank, had however commenced action in respect of the property before the first fire on 12 May 2010. Exhibit 30 is a statement by Mr Bruce Moreland, who at the relevant time was a Sheriff's Officer at Albury. On 28 April 2010 Mr Moreland attended 'Carinya' and affixed to the premises a Notice to Vacate. The Notice was to the effect that all occupants were required to vacate the premises by 8.30am on 20 May 2010. 30On 20 May 2010 Mr Moreland attended with his superior officer within the Sheriff's Office and a locksmith. The Writ of Possession had issued. Mr Moreland noticed that the Notice to Vacate that he had previously affixed had been removed. He noticed that there was paint missing from where he had affixed the notice with packing tape. 31The fact that the Commonwealth Bank had commenced the action to take possession of the property is another of the circumstances relied upon by the prosecution, essentially going to motive as to why the accused would want to destroy the property by fire. 32Ms Toni Leanne Hasler, a neighbour of the accused who lives (and lived at the relevant time) in Mitchell's Road passed the property 'Carinya' on the morning of 12 May 2010. She had known the accused for some few years. As she drove past the accused's premises she saw the accused just coming off the veranda, holding a container that he quickly dropped, and then wave to her. She was unable to further describe the container. The significance of the evidence is not the dropping of the container, but rather Ms Hasler places the accused at the house approximately half an hour before the fire was reported. Mr Quilter for the accused was at pains to point out that the time given by the witness was approximate. However, I am of the opinion that the fact that the accused was at the premises within half an hour or so of the fire is a very significant piece of circumstantial evidence, particularly so far as opportunity is concerned. 33The container, as I have indicated is of no significance. It is agreed between the parties that there was no trace of an accelerant found at the scene of the first fire. 34Indeed, it would seem that it was Mr Hasler who initially raised the alarm. He was working for Mr Scholz, who owned and operated the neighbouring farming property. Incidentally, although it is not particularly relevant to any issue that I have to decide, Mr Scholz now owns the property where the house was situated. Mr Hasler saw smoke coming from the house, telephoned his employer Mr Scholz who in turn contacted the authorities by 000 call. The Rural Fire Service of which Mr Hasler was part attended the scene and assisted in extinguishing the fire. Exhibit 27 is a Statement from Mr Mark Stewart of the Culcairn Fire Brigade, which indicates that the call was received at 11.45 am on 12 May 2010. 35Mr Hasler rang Mr Desmond Godde and told him that he could see smoke. Mr Godde went to investigate and found smoke coming from the roof of the accused's house. He turned off the power to the house. Mr Desmond Godde was aware that the accused was working for his (Godde's) brother Wayne and accordingly, Desmond Godde telephoned Wayne Godde and asked that the message then be passed on. Mr Wayne Godde telephoned the accused on the accused's mobile telephone. 36The accused had been at the property not long before the fire started. He went to the residence of Michelle King, a friend of his within the township of Culcairn. He drove his unregistered utility into town. For my present purposes the fact that the vehicle was unregistered by itself is of no consequence whatsoever. Ms King could not remember the exact date, but clearly she was giving evidence relating to 12 May 2010, the date of the first fire. The accused asked Ms King to drive him out to 'Carinya'. Ms King indicated that she had no petrol in her vehicle, the accused lent her $20 with which she purchased fuel at "Biti Motors", a local dealer at Culcairn. She then drove him out to 'Carinya'. According to Ms King the accused asked her to drive him out to 'Carinya' as the police would be there and his vehicle was unregistered. 37Further, according Ms King, on the way to the property the accused's mobile telephone rang. He announced it was Mr Des Godde, who informed him that there was a fire at his home. Ms King maintained that the accused said something about not knowing whether it was a joke or not. She was not sure whether the accused said something about the police being there before or after the accused received the phone call. 38Potentially there is some room for some confusion as to when it was that the accused became aware of the fire at his house on 12 May 2010. Ms King was recalled. It is tolerably plain so far as I am concerned that the accused attended upon the premises of Ms King and asked her to drive him out to his property. This and these general circumstances in my opinion substantially add to the prosecution's circumstantial case. Even adopting the view of the evidence most favourable to the accused it seems to me that it is truly remarkable that anyone being aware that there might be a fire at their home would concern themselves about driving an unregistered vehicle and then delay in getting out to the premises by having to purchase fuel. The usual and expected reaction of anyone would be to get to the scene as soon as humanly possible. The conduct of the accused in this regard is another "strand" in the prosecution's "cable". 39Ms Aphton King also gave evidence. She had known the accused for about 7 years. On 12 May 2010 she went shopping in Culcairn and saw the accused's vehicle. Through a phone call she found out about the fire at the accused's home at 'Carinya'. She decided to go to the scene. She recalls that there was conversation about the fire being caused by electrical fault. 40Electrical fault can be ruled out as a cause of both fires. Likewise, given the uncontradicted evidence in the form of the statement of Ross Wheeler (exhibit 36), lightning strikes can also be eliminated. There was no lightning within a 100 kilometre radius of Albury on 12 May 2010, or for that matter on 14 June 2010 (date of the second fire). Culcairn and the property 'Carinya' are well within that 100 kilometre radius of Albury. 41Inspections of the property after the fire on 12 May 2010 were carried out by Mr Robert Bowler, a Loss Assessor; Mr John Baker, an Inspector with the Rural Fire Service of New South Wales and Mr Neil Barns, a Forensic Consultant. Mr Bowler made arrangements for emergency accommodation for the accused after the fire. 42The photographs within exhibit 2 clearly show the extent of the damage as a result of the fire on 12 May 2010. The damage was limited to the roof cavity. Paragraph 12 of Mr Bowler's statement (exhibit 1) sets out a description of the damage that he observed: "The roof was in two sections with a damaged gabled roof to the south alongside an intact skillion section to the north. Both Barlow and I climbed onto the skillion roof in order to inspect the damaged gabled section. Much of the timber was still in place but had been exposed when the metal roof material was removed. I presumed the roof metal had been removed by fire brigade officers as they extinguished the fire. I observed there was charring at various points particularly the ridge beams. The ridge was split into two sections in the original construction with a shorter section at the eastern end and this was burnt out in the centre. The interesting thing was there was no obvious connection between the various charred areas. There was a quantity of roofing insulation similar to sisalation that appeared to have been installed between the roof timbers and the roof metal...I was unable to locate a definite origin for the fire damage..." 43Mr Baker whose statement was tendered and is exhibit 7 was of the opinion that the point of origin of the fire was at the western edge of the structure about 1.5 metres from the western edge. Grey and green coloured wiring was seen, but there was no evidence of arcing. The grey wire was found to be connected to nothing electrical. The process of arcing was described in the course of his evidence on 9 May 2011. It was described as electricity meeting resistance and the metal breaking down. Mr Baker was of the opinion that the fire was suspicious in origin. 44Neil Barnes is a highly qualified and very experienced Forensic Consultant who has been investigating fires and explosions for in excess of 30 years. No challenge was made to his expertise, and in my opinion no such challenge could reasonably have been made. He too was of the opinion that the fire was not electrical in origin. He too was of the opinion that there was no evidence of arcing. He described in his evidence distinctive burn patterns on the three ceiling bearers. He maintained in his evidence that for such burning to have occurred something had to have been placed on those bearers. He was of the opinion that the fire was not accidental. There were no signs of accelerant. 45In the course of the police investigation police recovered from a vehicle belonging to the accused that was removed from the property on 13 May 2010 what is described as a "Molotov cocktail". It is in fact an empty beer stubby, which contains the ends of cigarette butts. Attached to that bottle is a "Jim Beam" cap through which is threaded what is described as "wick". It is old material of some description. That item is exhibit 42. 46Had this been a jury trial, I am not certain whether I would have admitted the evidence of the finding of that Molotov cocktail by reason of the danger of unfair prejudice given the nature of the charge, taken with the fact that there is no suggestion of an explosion in respect of either fire. For the purpose of deciding the matters I have to decide I ignore that Molotov cocktail, save and except for the nature of material constituting the wick. 47Mr Barnes, the Forensic Consultant was shown exhibit 42 and asked a number of questions about the material constituting the wick. He maintained whatever was placed on the bearers would have been a little wider than the wick in exhibit 42. 48At the conclusion of his evidence, in order to ensure that I properly understood the evidence, I asked a question to the effect of whether he was saying that the burn pattern on the bearers that he observed was consistent with something being placed on them, or whether he was going further and saying that for the result that he observed something had to have been placed on the bearers. He indicated that it was the latter. I inquired of both advocates as to whether they wished to ask any questions as a result of that answer and both declined. 49Given the combined evidence of Messrs. Barnes, Baker and Bowler, but particularly the evidence of Mr Barnes, I am satisfied that the fire on 12 May 2010 at the home of the accused was deliberately lit by someone placing some type of combustible material and the bearers and setting it alight. 50I have summarised above the evidence available to the prosecution so far as the first fire is concerned. Taking all of the necessary warnings into account I am, however, satisfied beyond reasonable doubt that the accused deliberately lit that fire in the morning of 12 May 2010. There is another issue relating to the primary and alternative counts relating to each fire to which I will later return. 51I have not yet dealt with the version of the accused as contained within the record of interview. For reasons, with which I will deal when considering the second fire, I reject the version of the accused as it appears in the record of interview. I have come to my stated decision in respect of the first fire very much aware of the fact that as the tribunal of fact I do not have to accept the version of the accused in order to have a reasonable doubt. 52I have indicated my finding in respect of the first fire at this stage of my reasons as the finding beyond reasonable doubt that it was the accused lit that first fire potentially impacts on the prosecution case. The Prosecution in this matter has served a Co Incidence Notice on the accused. That Notice is exhibit 39 in the proceedings. There was no apparent objection to the tender of the Notice, nor was there any objection to me hearing the evidence in respect of both fires in the one hearing. As I understood the submissions of counsel for the accused, the issue was not so much the admissibility of the evidence, but rather, what use I might make of that evidence. 53The Notice appears to conform with the requirements of the Evidence Act 1995 and the decision of the Court of Criminal Appeal in R v AN (2000) 117 A Crim R 176 [2000] NSWCCA 372 at [61]-[62] and R v Zhang (2005) 158 A Crim R 504 at [131]. I note again that no apparent issue was taken with the Notice when it was tendered. 54As I understand the decided authorities on Co-Incidence evidence before it can be used by the tribunal of fact the various matters relied upon must be proved to the criminal standard, i.e. beyond reasonable doubt - see for e.g. HML v The Queen [2008] HCA 16. Further, as was made clear by Simpson J in DAO V R [2011] NSWCCA 63 co-incidence (and indeed tendency) evidence is much in the nature of circumstantial evidence, and accordingly, subject to the relevant directions on circumstantial evidence. 55Although I now turn to consider the fire on 14 June 2010, I have before me the evidence relating to the fire on 12 May 2010, and the decision I have made so far as that fire is concerned. So far as co-incidence evidence is concerned, juries are directed to the effect that (using the context of the matters I am considering): "That evidence is before you because sometimes there may be such a similarity between two different acts and the circumstances in which they occurred that a jury may be satisfied that the person who did one act (or set of acts) must have done the other(s). That is to say, there is such a similarity between the acts, and the circumstances in which they occurred, that because of the improbability of the events occurring coincidentally, it establishes that the accused committed the act ( or had the state of mind) that is the subject of the offence(s), because coincidence is a very unlikely explanation for the similarity(ies). In this case, the Crown says that, provided you are satisfied beyond reasonable doubt that the accused deliberately lit the fire at Carinya on 12 May 2010 then that act and the circumstances in which it was done, were so similar to the act(s) that the Crown says amounts to the offence(s) alleged, that you would conclude that the accused must have deliberately lit the fire on 14 June 2010. I repeat that the evidence of the pattern of behaviour can only be used in the way the Crown asks you to if you are firstly satisfied that the accused did the other acts beyond reasonable doubt". 56It is appropriate I direct myself accordingly. Accordingly, before I can as the tribunal of fact use the fact of the accused deliberately lighting the fire on 12 May 2010 in the determining whether the accused deliberately lit the fire on 14 June 2010 I would need to be satisfied beyond reasonable doubt not only that the accused lit the fire on 12 May 2010, but also the circumstances in which the fire of 14 June 2010 was lit there is such a similarity between the acts, and the circumstances in which they occurred the improbability of the acts occurring co incidentally it establishes that the accused deliberately lit the fire on 14 June 2010. 57Mr Quilter in his final submissions on behalf of the accused argued quite forcefully that the test should be "striking similarity". I do not accept that submission. The expression "striking similarity" is drawn from the common law authorities before the Evidence Act 1995 was enacted. As was made plain by the decision in R v Ellis (2003) 58 NSWLR 700; 144 A Crim R 1; [2003] NSWCCA 319 the provisions of the Act are to be followed in preference to the common law that developed on similar fact evidence. Special Leave to appeal to the High Court was granted but revoked - see Ellis v The Queen [2004] HCA Trans 488, with the High Court indicating that the decision in Ellis was correct. 58Mr Quilter also strongly argued that the test for admissibility of co-incidence evidence is higher where the issue is identity of the offender or perhaps more correctly, the identity of the accused as being the person responsible for the criminal act. The decision of R v Tektonopoulos [1999] 2 VR 412 was cited as authority for the proposition. I also reject this submission as I am of the opinion considering the law that has developed in New South Wales on the issue does not support that proposition. I particularly refer to R v Fletcher (2005) 156 A Crim R 308, Zhang (2005) 158 A Crim R 308 and more recently DAO [2011] NSWCCA 63. 59The fire on 14 June 2010 completely destroyed the dwelling. The extent of the destruction is obvious in the photographs within exhibit 9. 60Returning to the evidence of Mr Bowler, the Loss Assessor, he received a call from Detective Simmons on the evening of 14 June 2010 to say that the house had burnt to the ground. Mr Bowler attended the scene on 16 June 2010. It was observed that the electricity metre box was still sealed. There is evidence that that box was sealed on the date of the first fire, i.e. 12 May 2010. Accordingly, as there was no electricity connected to the premises, electrical fault can be quickly eliminated as a possible cause of the fire on 14 June 2010. Mr Bowler says (paragraph 40 exhibit 1) that when he was at the scene with the accused the accused "suddenly observed there was no trace of his large chest freezer as there should have been at the time of the fire. Barlow observed that there must have been a theft at some stage during his absence. He did not seek to make a connection between the possible theft and the fire". A close examination of the debris was not made at that point in time as there was friable asbestos and a strong wind blowing. 61Mr Bowler also maintains (paragraph 43) that the accused told him that he (the accused) had only been to the scene once since the first fire. This is in contrast to other versions the accused has given, and the evidence of Mr Scholz, to which I shall shortly return. 62Mr Barnes, the Forensic Consultant made a far more thorough examination of the scene and the debris in particular. He was of the opinion that the intensity of the second fire consumed all combustible material. There was no indication of an accelerant, but the fire was such that any accelerant would have been consumed in the fire, and accordingly he would not have found any. There were no metal tins or containers found within the debris. The glass from the windows was within a metre or so from the where the building would have been. This indicates that there was no explosion. 63Of particular significance was Mr Barnes' evidence of inspecting the debris for signs of the remains of furniture and the like. In what would have been the main bedroom Mr Barnes found the remains of metal bedside lamps, but found no evidence of the remains of any bed. He maintained that the coiling would have remained and been visible. In answer to questions 190 and continuing in his interview with Colin Brockwell (see exhibit 6) the accused maintains that his bed was valued at about $5000. Mr Brockwell was the investigator retained by Comminsure to investigate the fires on behalf of the insurance company. His statement is exhibit 5. 64The disputation between the accused and his ex-wife Ms Hart is also relevant to the second fire, as is the material relating to the Commonwealth Bank foreclosing. The bank had in fact foreclosed by the time of the second fire, and accordingly, is nominated as the owner of the property in the averment in sequence 4 of the Court Attendance Notice. 65The accused in the course of the record of interview (exhibit 41) maintained that he was making regular payments in respect of the mortgage on the property - see answers to questions 219-226. It is clear from the considerable volume of bank records in exhibit 37 that the accused was making no such payments. 66Further on this aspect the accused told Mr Brockwell, the Insurance Investigator (answers to questions 240 and continuing of exhibit 6) that he paid in $20,000. Again, the bank records indicate that this is simply not so. 67I return now to the evidence of Mr Murray Scholz. He was the immediate neighbour of the accused, and now in fact owns the land after an auction in February 2011. Mr Scholz could see the house at 'Carinya' from his own house, although as is obvious from the photograph exhibit 44 tendered by the accused, there are trees at least partially obscuring direct vision. Mr Scholz gave evidence to the effect that he owns 4,100 acres either side of Mitchell's Road, Culcairn. He was aware of the accused living at 'Carinya' by himself for about 4 years. 68Specifically relating to the fire on 14 June 2010 Mr Scholz recalls receiving a telephone call, going to his window and seeing the house alight, with the roof flat on the ground. He rang 000 and then contacted his employee Mr Hasler in order to arrange the attendance of the local Rural Fire Service equipment. He also attended the fire and observed the roof to be flat on the ground and the whole area around the blaze to be "very hot". 69Mr Scholz also gave evidence that on the night of the first fire there was a lot of activity at the property of the accused, such activity including the driving away of the gold coloured Ford sedan in which exhibit 42 was found several weeks later. That vehicle had apparently been under a carport at the accused's premises. Further between the two fires the accused, or at least someone with the same physical appearance, walk and hair came to the premises 5 or 6 times. There was no real challenge in cross-examination to Mr Scholz nominating the accused as the person who attended the premises. I note in any event that Mr Scholz had numerous opportunities to observe the accused over the years they had been neighbours. Mr Scholz also saw the Sheriff's officers attend at their second visit to the property. 70Mr Scholz I found to be a very credible and impressive witness. He was quite impassive in the witness box and indicated when he was not sure of details. He answered honestly about when asked if it was the accused who attended the premises. He said it was someone who looked like the accused, was the same size, had the same walk and hair. He was not shaken in cross-examination. I accept his evidence that the accused attended the property on about 5 or 6 occasions between 12 May 2010 and 14 June 2010. 71On this issue the answers to questions 500 and continuing of the record of interview are very relevant, and in my opinion very significant. The accused told police that he had been there except to pick up his dogs. At question 503 he was asked, "So you haven't been back since the roof's been?" to which he replied, "Nuh. I haven't been back on the place because it's too heartbreaking". At question 561 he maintained he went out to collect his mail "a couple of weeks back". The interview was conducted on 14 June 2010. See also answers to questions 247 - 249. 72It was argued on behalf of the accused that Mr Scholz could not give a great deal of detail about any of the occasions. That is indeed the case. He was hazy about the specifics. Mr Scholz's acknowledgement of such merely adds to his credibility in my opinion. 73The accused has for some time had a relationship with Ms Irene Ragitsch. He stayed at her premises the night and early morning of 13 and 14 June 2010. Ms Ragitsch was obviously a reluctant witness, who in fact was brought to court by virtue of a warrant when she failed to answer a subpoena. She was declared to be an unfavourable witness without objection. 74Part of her evidence related to the accused being aware of the Notice to Vacate posted at the property by the Sheriff's officers. On an occasion between the fires she was at the property of the accused with the accused and her daughter. The accused saw the Notice that had been posted by the Sheriff's officers, said words to the effect of, "what's this" and tore down the notice. This is in clear conflict with what he told Mr Brockwell, the Insurance Investigator, and indeed what he told investigating police in the record of interview. 75On this issue at answers to questions 172 and continuing in the interview with Mr Blockwell (exhibit 6) he maintains he was not aware of the foreclosure action by the Commonwealth Bank. Likewise he maintained to police (see for e.g. answers to questions 239 at p 21 and 303 at p 26) that he did not know of the foreclosure action by the Commonwealth Bank. 76In any event, it seems uncontroversial that the accused was with Ms Ragitsch until about 5 am on 14 June 2010. On 13 June 2010 at about 8pm Mr Wayne Godde contacted the accused to offer him work on 14 June 2010. Mr Godde requested that the accused be at a property at Walbundrie by 6am. The accused indicated that he would meet Mr Godde at Walbundrie at 7am. 77At about 5.50 am on 14 June 2010 Mr Desmond Godde heard a car coming up Mitchell's Road, but cannot be any more specific about the vehicle. The noise was from the vicinity of Murray Scholz's property. Mr Desmond Godde readied himself for work and left about 6.30am and went to the property of his brother Wayne Godde. The accused was at the property at the time that Mr Desmond Godde arrived. 78There is evidence in the statements of Detective Simmons about the travelling times - see paragraph 19 and continuing of exhibit 10. The net effect of the evidence of Desmond and Wayne Godde, taken with that of Det. Simmons on the issue of travelling times is that the accused would certainly have had the opportunity to travel from Albury to 'Carinya', set the fire and then travel to the Godde's property. 79I observe that the statements of Desmond and Wayne Godde were tendered without opposition and without those two persons being cross-examined. At paragraph 12 of Wayne Godde's statement the following appears: "We were working there till about 2.00pm when I got a call on my mobile phone. It was Kevin's girlfriend and she asked to speak to him. After he got off the phone he told me that his house had burnt down. I didn't notice any difference in K evin, he was just carrying like he normally does". 80Using common sense and experience of human affairs, as the tribunal of fact it beggars belief that anyone who had just been informed that their house had burnt down would not react at all and simply continue working. There was apparently no request to his employer that he leave early. The lack of reaction is consistent with the fact that the house had burnt down not being news to the accused. 81Detective Simmons was cross-examined on crime statistics for arson type matters in the Culcairn area. As I understand the evidence, the only other house fires reported to the authorities in the Culcairn area were accidental, and there was a grass fire in addition. This is certainly not consistent with there being an arsonist at large randomly targeting dwellings. 82On 16 June 2010 the accused spoke to Ms Any Weckert of the Commonwealth Bank relating to him lodging a claim on the insurance for the house. Ms Weckert's statement is exhibit 29. After some discussion, Ms Weckert contacted someone at Comminsure and commenced to give details. The accused reacted by sighing when told that the insurance company would rebuild the house and replace the contents. Despite the urgings of the prosecution, I am not prepared to put much weight on this. The reaction is equally consistent with someone who is frustrated with dealing with insurance companies and bank officials. 83The prosecution argued strongly that the accused told a number of lies. The prosecution went further and submitted that the lies should be dealt with as going to consciousness of guilt. That is an issue that should have been resolved before the addresses, and in that regard I am as much at fault as either of the advocates. Specifically the lies relate to the issues of the accused being aware of the foreclosure action by the bank, the number of occasions he had been to the premises, his attendance at Brocklesby, and his financial contributions to the property. 84In answer to questions 259 and continuing of the record of interview the accused maintains that he went to Brocklesby, realised he had to be at Walbundrie and went to sleep there and Trevor woke him up. 85The version of the accused so far as his contributions to the property, his knowledge of the foreclosure action by the bank and the number of occasions on which he had been to the premises are lies. As much was virtually conceded by the accused's counsel. I was urged, however, by counsel for the accused that these matters are collateral and I should "be very careful about placing too much weight on the lies". The answer to most of the issues about which the accused told lies was "so what!" as it really does not take the matter too far. 86A Mr Matthew Lawry came to the attention of police in the course of the investigation. He gave evidence on 10 May 2011, but was not cross-examined. He was at Corowa on the night of 13 June and the early hours of the morning of 14 June 2010. It seems he discovered the fire. He went to the premises, checked for signs of life and left and went to play golf. In the circumstances, there could be no reasonable suggestion that Mr Lawry was responsible for the fire on 14 June 2010. 87Given the decision in Edwards v The Queen I am not prepared to admit the evidence of the lies, or use the evidence of lies going to the consciousness of the guilt of the accused. However, there are a number of lies going to what in my opinion are relatively important matters. This is particularly so relating to the number of visits and his knowledge of the foreclosure action. Clearly, the accused told lies about those matters. 88I direct myself that I must not follow or engage in a process of reasoning to the effect that just because a person is demonstrated to have told a lie about something that is evidence of guilt. Clearly in this case, given what I have said immediately above, those lies do not go to consciousness of guilt. However, I am firmly of the opinion they reflect adversely on the credit of the accused to the extent that I am of the opinion I am entitled to reject his version of events as set out in the record of interview, exhibit 41. At the risk of repetition I remind myself that I do not have to accept the version of the accused to entertain a reasonable doubt as to the guilt of the accused. 89As will be obvious I have prepared these reasons overnight after hearing the final addresses of counsel. I do not have a transcript of the evidence, although it needs to be observed a great deal of the evidence is in written statement form, and was not subject to cross-examination. I have summarised the circumstances upon which it seems to me the prosecution rely. 90I return to the issue of the co incidence evidence. Mr Quilter argues that as there are only two events the significance of the co incidence evidence is not as great as it would be if there were more events. That submission has some appeal. However, the circumstances are that it was the same premises, the accused had motive, and opportunity, and there was the conflict with Ms Hart (the accused's ex-wife) and the bank taking foreclosure action. I am of the opinion that I should use the evidence of the deliberate lighting of the fire on 12 May 2010 as co incidence evidence, taking into account the various warnings and directions I have given myself in this regard. In particular, that it is merely another piece of circumstantial evidence, noting the directions and warnings on circumstantial evidence. I indicate, however, that my decision would have been no different had I come to the opposite conclusion on this issue. 91The prosecutions submissions were very helpfully reduced to a "dot point" summary of the evidence, supplemented by oral submissions. In particular I raised with the prosecution the elements of sequences 1 and 3 relating to the accused having a view to making a gain for himself. The prosecution strongly argued that what was important was what was in the mind of the accused as demonstrated by the objective evidence. In particular in this regard the prosecution relied upon the accused's inquiries about insurance before the fire, and his attendance on Ms Weckert on 16 June 2010, i.e. only two days after the second fire. The prosecution argued further that the accused had an insurable interest with the contents. 92The prosecution emphasised the lies. I mean no disrespect to the prosecutor in dealing with this submission so briefly. I have already dealt with the issues relating to lies in some detail above. There is no point in repeating those findings and decisions in dealing with the submissions. 93Further, the prosecution submitted in respect of the first fire, I would find the evidence of Ms Michelle King very important, and moreover very telling. I have dealt with this issue when dealing with Ms King's evidence. It is obvious that that part of the evidence is relatively important. 94It was emphasised by the prosecutor that the prosecution have eliminated accident as a cause of both fires. Certainly, electrical fault can be eliminated from both fires. Likewise, lightning strike can also be excluded. However, just because accident has been eliminated does not by that fact implicate the accused. The directions relating to circumstantial evidence need to be very clearly borne in mind. 95The prosecution then went through and highlighted the issues and detailed the circumstantial evidence upon which the prosecution relied. I have dealt with those issues when summarising the evidence. Not surprisingly, the prosecution also submitted that I would use the first fire as co incidence evidence. I have dealt at length with that issue. 96Mr Quilter must be congratulated on the structure and clarity of his address. He submitted that the strands in the cable were motive, opportunity, the attendance of the accused on the property between the fires, the threats, lies, and the unusual behaviour. 97Different people, so it was submitted, will react differently to various situations. For example, it was submitted that the fact that the house was to be repossessed might account for the accused's reaction when told of the house burning down. Further, it was submitted that not much could be read into the threats. I have dealt with that issue when summarising that part of the evidence. However, the point was well made that neither Mr nor Ms Hart saw fit to go to the police at or near the time that the accused is said to have made the threats. 98It was put that the evidence of Toni Hasler was "not a useful strand" as she was only giving approximate times. There were submissions on the issue of the container. Again, I have dealt with these issues when summarising that part of the evidence. The point is well made that Ms Hasler was giving approximate times. The significance of the evidence is however, obvious. The accused clearly had the opportunity to set that first fire. 99So far as the various observations of Mr Scholz is concerned, it was submitted that he was obviously busy attending to his farm, and the various tasks in hand. He was "oblivious" to persons coming and going. Again, I have dealt with those issues in summarising his evidence. 100In respect of motive, it was submitted that it would be a natural reaction of property owner whose property burnt down to lodge an insurance claim. This situation in the matters presently under consideration is a little different as there must be doubt as to whether the accused had an insurable interest save and except for the contents. 101According to submissions by counsel for the accused it is highly significant that Mr Scholz did not make any mention of the accused driving or having access to a maroon Mitsubishi vehicle, as this was apparently the only vehicle to which the accused had access. I do not agree. Mostly, Mr Scholz was silent on the type of vehicle. In any event, the fact that there was no evidence of the presence of such a vehicle does not assist in arriving at a decision. 102Mr Quilter then went to address the various versions given by the accused. I have said earlier in these reasons, there is room for confusion in the evidence of Michelle King. So far as the accused not being in a hurry to get to the premises, it was put that he would be of little use. It beggars belief, quite frankly, that any home owner who was informed of his house being on fire would not want to get to the scene as quickly as possible. So far as the phone call with Mr Godde, the accused was not sure as to whether or not it was a joke. 103So far as the morning of 14 June 2010 was concerned, the submission was put that it is equally consistent with the accused going to the wrong place in error and he was embarrassed. The point that it is difficult for the prosecution to prove a negative, however, has some appeal. 104It was put on behalf of the accused that the lies are consistent with the accused being in a state of panic. I reject that submission. The lies were numerous and made in respect of relatively important aspects. I note that the interview with Mr Blockwell was several months after the fire. The accused was cautioned by police. 105I have essentially dealt with the submissions relating to the co incidence evidence in dealing with that. Mr Quilter urged that there must be a striking similarity. That in my opinion, does not accord with the present state of the law on that subject. 106Although there is no onus on the accused, other hypothesis were ventilated on behalf of the accused. There appears to have been a problem with the sliding door to the premises. It was argued that the premises are relatively isolated, and any number of people could have had access to the property. Further, in this regard it was argued that the property was essentially abandoned after 12 May 2010 and vandals may well have been responsible. However, the evidence from Det. Simmons in my opinion negates the possibility of an arsonist being at work. 107However, despite those submissions, and taking into account all of the warnings set out earlier in these reasons, I am satisfied beyond reasonable doubt that the accused deliberately lit the fires on 12 May 2010 and 14 June 2010. The only matter now remaining the additional elements in sequences 1 and 3, i.e. relating to the dishonest conduct of the accused and him acting with a view to make a gain for himself. 108While I am strongly suspicious of the motives of the accused, noting in particular his inquires about the insurance only a few weeks before the first fire, there are other inferences equally available. In particular, these other inferences include revenge, noting in particular the threats I have found were made by the accused to his ex wife. 109For these reasons I entertain a reasonable doubt about the guilt of the accused in respect of fourth element of sequences 1 and 3. However, for these reasons I am satisfied beyond reasonable doubt that the accused deliberately lit both fires, and accordingly, I find sequences 2 and 4 proved. 110I will now hear counsel as to what course they wish me take in relation to sentence. Magistrate G Lerve Albury Local Court 13 May 2011 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2011