District Court New South Wales Medium Neutral Citation: R v Muir [2015] NSWDC 362 Decision date: 10 November 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: The accused is acquitted of the charge of arson. Catchwords: CRIMINAL LAW – trial – judge alone – particular offence – arson – admission of accused to break-in earlier in the evening– firm denials regarding arson – motive – efficient conduct of trial – circumstantial case – other reasonable possibilities – not satisfied beyond reasonable doubt Category: Principal judgment Parties: Regina (Crown) Kim Muir (Accused) Representation: Counsel: L Shaw (Crown) W Walsh (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) File Number(s): 2014/84149 Judgment 1. The police charged Kim Muir with arson. They say that on 14 March 2014 here in Orange she set alight a house in Orange. The police interviewed Kim Muir and she admitted during the interview that she had in fact broken into that house at about 8.30pm the previous night. The house was indeed burnt. When the fire brigade was called at about midnight, the house was well alight. 2. In the same interview where she admitted breaking into the house and stealing some items, Kim Muir firmly denied that she had anything to do with the house fire. Police maintained the charge and Kim Muir was committed for trial to the District Court. The prosecution and the defence agreed that there could be a trial without a jury, that is, a judge alone trial. It commenced this morning and has been conducted very efficiently by two very experienced counsel, Mr L Shaw, the Crown Prosecutor, and Mr W Walsh for Ms Muir. 3. Mr Shaw called a series of witnesses and tendered a series of exhibits. He called members of the fire brigade who attended the scene. He called the neighbours who had witnessed the fire and he called the police, including the officer-in-charge of the investigation. He tendered statements by some of the other witnesses. There were also photographic exhibits and plans, which were very helpful. 4. Mr Shaw's case is circumstantial. The case law is clear that just because a case is circumstantial does not mean that it is weak. It is circumstantial in this case because Ms Muir does not admit that she lit the fire, no witness saw her light the fire or indeed saw her anywhere near the fire when it occurred. Ms Muir said to the police that after she broke in and stole a couple of items she went back home. She lived nearby. 5. The law about proving a circumstantial case is this. Because the responsibility of the prosecution is to satisfy the tribunal, normally a jury but in this case me, of the guilt of the accused person beyond reasonable doubt, there cannot be any lingering reasonable possibility of innocence. That means in a circumstantial case that the prosecution has to exclude any reasonable possibility that somebody else was responsible for the crime. That is where the problem lies with Mr Shaw's case. 6. The evidence which he very fairly led included accounts by the neighbours. A number of the neighbours heard voices and saw people close to the scene of the fire and close to the time of the fire. Some of the witnesses heard voices about half an hour before the fire brigade was called. At least one witness, Ms Best, said there was only about ten minutes between her hearing of three men arguing near her house for about two or three minutes before things went "deadly quiet" and the arrival of either the police or the fire brigade. Another witness gave an account of a man who appeared in the street where the burning house was and, of all things, lit a cigarette and made an observation that anyone would be lucky to put the fire out before he left the scene. Yet another witness saw some men carrying something white in the vicinity. Some of these observations do not coincide exactly with the time, with the exception of Ms Best who places her observations close to the fire. Some of them are half an hour or more apart. But of course, they are all estimates. The estimates might be wrong. Mr Walsh cross-examined at least one or two witnesses about estimates being approximate and they acknowledged that. 7. Mr Walsh led from one of the police officers the fact that his client had no criminal record for arson or for malicious damage. Mr Shaw very fairly acknowledged that the fact that Ms Muir admitted that she broke and entered the house was to some extent to her credit but he also appropriately pointed out that the case against her would probably mean rejecting her account that the break in was at 8.30 and putting it closer to midnight. He argued that Ms Muir had a motive to set the fire because she admittedly broke into the house by climbing in through a window. She might have set the fire to destroy any evidence of the break in or of her connection with the break in. 8. As Mr Shaw very correctly and fairly acknowledges, arson is notoriously difficult to prove. I agree with him and I think it has not been proved in this case. I myself think that there remains the reasonable possibility that any of these arguing or cigarette smoking or goods carrying characters who were in the vicinity close enough to the time may have been the culprit or culprits for the arson. 9. In her favour Ms Muir has the fact that she has never committed a crime like this or even malicious damage. I can weigh that in considering whether it is likely that Ms Muir was responsible for this fire. 10. For those reasons I am not satisfied beyond reasonable doubt of the guilt of Ms Muir on the charge of arson and I acquit her. WALSH: May it please. CROWN PROSECUTOR: Court pleases. ********** 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: 10 February 2016