District Court New South Wales Medium Neutral Citation: R v Bellette [2019] NSWDC 525 Hearing dates: 22-23 July 2019 Date of orders: 23 July 2019 Decision date: 23 July 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: Pursuant to s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, the accused is not guilty of the offence charged. Catchwords: MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing Cases Cited: Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Regina (Crown) Kenneth James Bellette (Accused) Representation: Counsel: C Hurford (Solicitor advocate for Public Prosecutions, Crown) C Tawagi (Solicitor for Accused) File Number(s): 2017/00298536 Judgment INTRODUCTION 1. On 15 October 2018 Hanley SC DCJ found Kenneth James Bellette unfit to be tried on a charge of damage property by fire and referred the matter to the Mental Health Review Tribunal. Mr Bellette was ordered to be detained. On 29 November 2018 the Tribunal determined that Mr Bellette was unfit and on the balance of probabilities he would not become fit to be tried for the offence with which he has been charged within 12 months of the Court's finding of unfitness. 2. On 14 March 2019 the DPP gave notice that pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 ('the Act') that it intended to proceed with the charge against Mr Bellette. 3. Pursuant to s 19(1)(b) of the Act, as a result of that notice the Court "is to conduct a special hearing as soon as practicable unless the DPP advises that no further proceedings will be taken". 4. A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be found proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2). NATURE AND CONDUCT OF A SPECIAL HEARING 1. Mr Bellette appeared before me on Monday 22 July 2019. He was represented by Ms Tawagi, an Australian legal practitioner. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings: s 21(1). 2. Mr Bellette was arraigned and pleaded not guilty with the assistance of his counsel. At a special hearing the accused person is to be taken to have pleaded not guilty in respect of the offence charged: s 21(3)(a). The matter comes before me as a judge alone trial because no election has been made to have the special hearing determined by a jury: s 21A(1). VERDICTS AT A SPECIAL HEARING 1. The verdicts available to the Court at a special hearing are: * not guilty of the offence charged: s 22(1)(a), * not guilty on the ground of mental illness: s 22(1)(b), * that on the limited evidence available the accused person committed the offence charged: s 22(1)(c), * that on the limited evidence available the accused person committed an offence available as an alternative to the offence charged: s 22(1)(d). THE TRIAL 1. The Crown tendered the following materials. Exhibit 1, statement of Detective Senior Constable Anthony Blair dated 3 November 2017, including two photographs attached thereto. Exhibit 2, statement of Senior Constable Brian Tulk dated 24 November 2017. Exhibit 3, notebook statement of Senior Constable Brian Tulk dated 24 November 2017. Exhibit 4, statement of Lealassy Fauena dated 4 November 2017. Exhibit 5, statement of Sergeant Jane Josephs, including 23 photographs, dated 3 October 2017. SUMMARY OF THE ALLEGATION 1. The accused was a resident at Lifestyle Solutions at 9-17 First Road, Berkshire Park. It is a special accommodation unit. The accused has mental health issues. On Tuesday 3 October 2017 a smoke alarm went off at the premises. There was a fire in the accused's bedroom. A two-seater couch was on fire. The question for determination is can the Crown prove beyond reasonable doubt that the accused intentionally lit the fire or is the Crown unable to exclude beyond reasonable doubt the reasonable possibility that the fire was an accident. THE INDICTMENT 1. The accused is charged with that on 3 October 2017 at Berkshire Park in the State of New South Wales he intentionally damaged property by reason of fire, namely a two-seater couch and part of a dwelling at 17/9 First Road, the property of Lifestyle Solutions, contrary to s 195(1)(b) of the Crimes Act. THE ELEMENTS 1. There is only one element in dispute. The other elements such as date, time, place, and damage by fire are not in dispute. The element in dispute is that the accused intentionally caused the damage. THE FACTS 1. The relevant evidence is as follows: Detective Senior Constable Blair 1. He attended 17/9 First Road, Berkshire Park, in relation to a fire at that address. He was advised that the accused had been arrested and had been conveyed to the Penrith Police Station. He was shown the bedroom subject of the fire, and there he obtained two still photographs of the damage to a lounge in that room and damage to a wall above the chair. Exhibit 2, Senior Constable Tulk 1. At around 10.38pm on 3 October 2017 he acknowledged an incident was occurring at Berkshire Park. He knew the residence to be a group care facility, and the incident was listed as a unit fire. At around 10.55pm he attended the address and saw that there were numerous fire brigade trucks at the location. Whilst walking to the front door, there were numerous persons walking around the front and to the sides of the property. He entered the facility, and through what appeared to be a common area he saw that there was a closed door which had what appeared to be a Perspex window incorporated into it. He could see water cascading down the Perspex during this time. 2. Shortly after this time he proceeded to the area where he sighted a male standing inside the fence. He was standing on the outside of the fence. The male was wearing a high visibility jacket. The male identified himself as Ken and that he had hurt himself. The male pulled up the sleeve of his jacket revealing minor cuts on his arm. 3. Tulk then asked the male how he had received the cuts, and he pointed to a small pair of silver scissors which were resting on a concrete kerb on the outside of the fence. Tulk then walked back to the facility and he made his way through the door, which was initially locked, walked through a room which he saw was affected by water, and there was also damage to the lounge that he saw in the room. He conducted a standard search of the accused with nil adverse items detected. The accused was placed in handcuffs and was transported by other police to the Penrith Police Station. Police Officer Tulk spoke with a support worker from the location, Pio Misa, who provided to him a version which he recorded in his police notebook at pages 47 to 50, which reads as follows: "I arrive on shift at 9.55pm with handover with B shift staff. Ken Bellette knocked on kitchen window and asked for coffee. Staff reminded of house rules that last coffee at 1am in the morning. Not even five minutes Ken was saying something, couldn't hear exactly. Ken got upset and we heard Ken's coffee cup hit the ground. We were watching him on the cameras. He used a lot of force to throw the cup. There was a loud bang. So he stormed to his room and slammed the door. Not even five minutes the smoke alarm went off. Could hear the beeping. Followed the fire protocols and went to box meter inside the staff office and identified what room the alarm was coming from, and it was Ken Bellette's bedroom. Staff identified there was smoke coming from Ken Bellette's bedroom. Staff removed a blanket which was covering the door window and then we saw the fire. We saw the lounge on fire, a lot of smoke, and Ken standing in the middle of the room with a sharp object. Ken said, 'This is an ISIS hostage. I am going to kill' (unsure). We grabbed fire extinguishers. The water sprinklers had been set off. Ken managed to go out the back. That was the last time I saw him." 1. After speaking with Misa, Senior Constable Tulk then returned to Bellette's room and had a look at the damaged areas. A lounge seat in the room appeared to have been damaged by fire, with the wall area directly behind the lounge appearing damaged. Exhibit 4 1. Lealassy Fauena is employed by Lifestyle Solutions in the role of community support worker. The facility has a 24 hour care and supervision of clients. Mr Bellette was a resident of the facility. He has both mental health and disability issues and he requires medication for his illness. Fauena was rostered to work as a carer with Cherie Nune from 2pm until 10pm. Bellette was present for the day, but Bellette did go out during the day and returned at about 6pm. He seemed okay and normal as could be. 2. Fauena had some interaction with him. The only concern he had was that he had run out of cigarettes and was not due to be paid again until Friday to buy more. Fauena was also aware that he was suffering angst from his impending move from the residence and he did not know where he was going to live, and this was causing him grief. He was constantly asking "what was happening and all we (staff) could tell him, as soon as we found out we would let him know." "Around 10pm I was doing shift changeover with the oncoming staff member Pio Misa. Bellette came up to the office window whilst we were completing our changeover. Pio spoke with him. Soon after I heard Bellette slam his bedroom door (his room is nearby to the office and adjoins the main living/lounge area of the residence beside the front office.) I walked out of the residence to get in my car. I heard the fire alarm going off and came back inside. I walked into the office and grabbed the swipe key for Bellette's room. I called Pio to come with me to Bellette's room. I used the swipe card to try and access his room, but something was obstructing my entry. I smelt smoke. There was a covering over the window in his door that allows a view of his room. Pio pulled the covering off and inside I saw a fire. I saw that the lounge on the side of the wall was on fire. Bellette was swearing at us and telling us to fuck off and leave him alone. I could see that he was holding something in his hand but I could not see exactly what it was. We still could not get in from the door. Pio went to get the fire extinguisher. We tried to push his door open but he was holding it closed from the other side. I went around to the other side of his room where there is another access door. I saw that Bellete was already outside. That door has a swipe key access, so Bellette must have jemmied the door. I asked him what was going on. He said something about ISIS. I asked if he wanted to talk to me about anything, he said, 'I want to go back to prison.' While we were waiting there, Bellette used a small pair of scissors to cut his left arm. I told him to stop. He slashed himself in the arm and eventually handed over the scissors. I am aware that police seized those scissors. The automatic fire extinguishers came on and doused the fire. The police and fire brigade arrived soon after." Exhibit 5, Sergeant Jane Josephs "I have been a member of the New South Wales Police Force for 12 years. For the past seven and a half years I have been a member of the Forensic and Technical Service Crime Scene Services Branch. My duties include the technical investigation of crime and incident scenes where physical evidence may be present. Attendance. At 8.45am on Wednesday 4 October 2017 I attended 9/17 First Road, Berkshire Park, a property known as Lifestyle Solutions, and commenced an examination of the property. Lifestyle Solutions is a group home for clients with mental health conditions and a criminal justice centre for male and female residents. The building was purpose built in 2012 and has a number of individual lockable bedrooms, common living areas, and staff offices and facilities. The centre is able to accommodate up to five residents." Examination of the bedroom. The bedroom that sustained the fire damage was located off the common lounge area. It was approximately 3.5 x 4 metres in size and had a solid timber door with a glass window on both the internal and external doors. The internal door had secure card access on the common lounge room side. The external door opened to a small enclosed verandah area and a secure courtyard. I examined the locks on both doors and saw there was no damage to either. The room was furnished with a single bed against the southern wall, a two seat lounge against the western wall, and another under the window against the northern wall. The bedroom was untidy with clothes and personal belongings on the bed and floor. Some of the vertical blinds had been pulled down and were lying across the lounge under the window. I saw that the cover and mounting from the fire suppression sprinkler in the ceiling had been pulled down and was also on the lounge under the window. The verandah had bedding and clothing on the ground, and I saw two cigarette butts on the ground behind the internal door. The outside area had a chair, and beside the chair I saw an ashtray containing cigarette butts. Examination of the fire damage in the bedroom The fire damage in the bedroom was limited to the northern end of the lounge located against the western wall and some charring of the floor below as the fire debris from the lounge fell to the floor surface. There was also sooting behind the lounge on the paintwork of the western wall and water damage to the room generally. In my opinion from the damage to the lounge, a fire has either been deliberately or accidentally lit on the northern end seat cushion. This has burnt out and over the arm of the lounge and through the back of the seat at the northern end. I am of the opinion that it is more likely the fire started towards the front of the seat rather than the rear between the seat cushion and the back of the lounge. I was not able to determine an ignition source within the room. Activation of the sprinkler system has extinguished the fire before any greater damage was caused." CROWN SUBMISSION 1. The Crown case is a circumstantial case. They rely upon the following matters in proof of its case: 1. The accused was in a heightened state of anxiety about his removal from the facility and his future. 2. The accused was angry that he had been refused a cup of coffee. He threw his cup with force. 3. There is a close temporal connection between the refusal of the cup of coffee and the fire. 4. The accused was out of cigarettes so therefore it cannot be an accidental fire from a cigarette falling onto the couch. 5. Previous cigarette butts demonstrate that the accused had an ignition source available to him. 6. The accused placed the blanket on the pane of glass in the door so others could not see him as he deliberately lit the fire. 7. The utterances by him that this "is an ISIS hostage, I'm going to kill," is capable of an implied admission that he lit the fire. 8. That the venetian blinds had been pulled down by him as part of his intentional conduct. 9. The damage to the sprinkler system must have been done by him as part of his intentional conduct. 10. The holding of the door to prevent entry indicates that he had deliberately lit the fire. 11. The need to jemmy the external door and escape was due to him having deliberately lit the fire. 12. While outside and before his arrest he had an opportunity to dispose of the ignition source. 13. The accused said he "wanted to go back to prison." This was an implied admission as to his guilt. 1. The Crown submits that when one examines in combination those established facts, the only rational inference is that the accused intentionally lit the fire. THE ACCUSED'S SUBMISSIONS 1. It was submitted on behalf of the accused that the circumstances relied upon by the Crown are consistent with the fire being accidental as opposed to intentional. It was submitted that the Crown had not excluded beyond reasonable doubt a reasonable possibility that the fire was an accident. CONSIDERATION ONUS AND STANDARD OF PROOF 1. The test in a criminal case is not whether the accused is probably guilty. In a criminal trial the Crown must prove the accused's guilt beyond reasonable doubt. Obviously a suspicion, even a strong suspicion, that the accused may be guilty is not enough. A decision that the accused has probably committed the offence also falls short of what is required. The accused is entitled by law to the benefit of any reasonable doubt that is left in my mind at the end of my deliberations. CIRCUMSTANTIAL EVIDENCE 1. If there is any other reasonable conclusion arising from the facts that is inconsistent with the guilt of the accused, the circumstantial case fails. The Crown must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all of the established facts viewed as a whole is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown's circumstantial case has failed. 2. The Crown relied upon the heightened state of anxiety of the accused about his removal from the facility. Such anxiety is consistent with the accused suffering from treatment resistant schizophrenia, complicated by substance abuse disorder and intellectual disability, which he does suffer from. He may have been angry about the refusal of the coffee but it does not necessarily follow that he intentionally started a fire. He may have retired to his room to have a cigarette to get over the refusal of the coffee. The close temporal connection is equivocal as to deliberate or accidental. 3. The accused was absent from the facility for part of the day. The evidence does not establish that the conversation about being out of smokes took place before or after he had left the facility. Evidence of cigarette butts in the room and the outside patio are consistent with the accused enjoying a smoke inside and outside of his room. It does demonstrate that he has had access to an ignition source. 4. There is no evidence as to when the accused placed the blanket over the glass. It may have been placed there well before the coffee incident. One must understand that the accused is not a rational man. The utterances of "This is an ISIS hostage, I'm going to kill," may be the mumblings of a mentally disturbed person as opposed to an implied admission to deliberately lighting the fire. The utterances that he wanted to go back to gaol is consistent with accidental fire as his concern about punishment for allowing the accident to occur. 5. The evidence does not establish when the venetian blinds were pulled down. They may have been pulled down as he sought to escape the accidental fire in the room. The holding of the door to prevent entry is consistent with the accused having accidentally lit the fire and his concern about being punished for it. His actions need to be looked at through the prism of a mentally disturbed person, not through the application of objective logic. 6. The need to jemmy the outside door is consistent with him attempting to escape from an accidental fire as opposed to an intentionally lit fire. True it is he had an opportunity outside to dispose of the ignition source. This is consistent with him having had a cigarette falling on the couch causing an accidental fire and the need to dispose of the igniter to avoid punishment for the damage caused by reason of the accident. 7. The damage to the sprinkler system is essentially unexplained by the forensic police officer. Part of the sprinkler system was found on the floor of the apartment, which can be consistent with it having been dislodged when the sprinkler system was activated. 8. In looking at the evidence as a whole, as I am required to do, I am not satisfied that the only reasonable inference is that the fire was intentionally lit. In my view there is a reasonable conclusion open upon the facts, and that is that the fire was an accident. I do have a strong suspicion that the accused may have intentionally lit the fire, but upon the application of beyond reasonable doubt, the highest standard known to the law, strong suspicion that the accused may be guilty is not enough. ORDER 1. The accused is not guilty of the offence charged: s 22(1)(a). ********** 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: 03 October 2019