Bolger v The Queen

[2021] NSWCCA 129

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bolger v R [2021] NSWCCA 129

Hearing dates:

28 May 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Before:

Harrison J at [1];
Adamson J at [95];
Bellew J at [96]

Decision:

(1)  Grant leave to appeal.

(2)  Dismiss the appeal.

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – where appellant convicted of setting fire to his house – destroying or damaging property – attempt to dishonestly obtain financial advantage from insurance company – where there are several available reasons why appellant may have not started fire – where it was open to jury to be satisfied beyond reasonable doubt that appellant’s interpretation of evidence should not be accepted – where there are no inconsistencies in evidence that are irreconcilable with finding of appellant’s guilt – verdict not unreasonable and can be supported having regard to evidence – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Category:

Principal judgment

Parties:

Paul Anthony Bolger (Applicant)
Crown (Respondent)

Representation:

Counsel:
D Dalton SC with S Grey (Applicant)
G Newton (Respondent)

Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2013/226968

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 285

Date of Decision:

26 April 2018

Before:

Norrish QC DCJ

File Number(s):

2013/226968

Judgment

1. HARRISON J: Paul Anthony Bolger was convicted by a jury after a trial before his Honour Norrish QC DCJ between 30 January 2018 and 20 March 2018 on two counts as follows:

Count 1: That on 16 March 2013 at Tamworth in the State of New South Wales he did dishonestly damage by means of fire the house and contents at 93 Johnston Street, North Tamworth with a view to making gain, namely, payment of insurance money for himself contrary to s 197(1)(b) of the Crimes Act 1900.

Count 2: That between 15 March 2013 and 25 July 2013 at Tamworth in the State of New South Wales he did, by deception, namely, by falsely reporting a fire to be accidental and claiming advantage on an insurance policy, dishonestly attempt to obtain a financial advantage for himself, contrary to s 192E(1) of the Crimes Act 1900.

2. Mr Bolger was sentenced by his Honour on 26 April 2018 for these counts to an effective sentence of 3 years imprisonment, with a non-parole period of 18 months to date from that day. Mr Bolger’s entire sentence has now expired.

3. Mr Bolger now seeks leave to appeal out of time against his convictions on the single ground that the verdict was unreasonable or cannot be supported having regard to the evidence. The application for leave and the appeal were heard concurrently.

The Crown case

4. Mr Bolger’s appeal in this Court understandably necessitates a detailed understanding of the factual circumstances that generated the charges upon which he was found guilty and to a lesser extent the related circumstances that generated three other charges upon which the jury found him not guilty. The following summary of these facts proceeds upon the basis that it represents the version for which the Crown contended at trial, unless otherwise specifically indicated.

5. At the time of the alleged offences, Mr Bolger resided at his house at 93 Johnston Street, North Tamworth. On Saturday 16 March 2013, at approximately 10.30pm, a fire caused damage to some parts of the property. In the early hours of the morning on Tuesday 2 April 2013, a second fire destroyed it completely. There was no dispute at trial that Mr Bolger was present when the first fire started. The significant issue, however, was whether that fire was deliberately caused or was the result of an accident. Mr Bolger denied that he was present when the second fire occurred and relied upon an alibi defence. Mr Bolger was found not guilty by the jury on three counts related to the second fire.

6. In support of its case that Mr Bolger deliberately lit the first fire, the Crown tendered CCTV material taken from a series of cameras installed by him in the house. This material is referred to later in more detail. The Crown maintained that footage from these cameras showed Mr Bolger moving around in the house shortly before the fire started between the source of the fire in bedroom 1 and bedroom 2 in “a crouched position”. It was the Crown case that Mr Bolger was attempting by this means to place himself below the direct view of the cameras he had installed and that he was unaware that a reflected image of him moving about in this crouching stance was being recorded by one of the cameras pointed at the glass front door of the premises.

7. Senior Constable Kentwell attended the first fire and observed Mr Bolger going in and out of the rear of the house. When later asked by the officer what happened, Mr Bolger replied that he “had candles in there” and that “they must have caught on something”. Senior Constable Kentwell later spoke to Mr Bolger in the presence of Senior Constable Wolds when Mr Bolger told them:

“Yeah, there have been bad smells coming from that room for a bit now. It smells like a dead rat or mouse. I was burning some smelly candles and had some burning essence dishes going to cover up the smell. They were sitting pretty close to the window and curtain; one must have caught on.”

8. Senior Constable Wolds recalled Mr Bolger telling him that he had “some CCTV of the fire if you want it”. The officer agreed in cross-examination that Mr Bolger was “volunteering up his CCTV footage” during the conversation at the house on the night of the fire. He agreed that Mr Bolger said that he had the CCTV footage on a hard drive and that he suggested that Senior Constable Wolds “may wish to view it”. He also agreed that when he arrived at the scene, he saw Mr Bolger attempting to extinguish the fire with a garden hose.

9. Senior Constable Anderson gave evidence that he had been working at Tamworth Police Station on 19 March 2013 and had attended the property the previous day in relation to a break and enter report at the premises. He had spoken to Mr Bolger at the site and established that the first fire had occurred several days beforehand. Mr Bolger told him that there had been two separate break and enters, the first on Sunday 17 March 2013 in which two laptops had been stolen and a second on the following day. Mr Bolger told the officer that he had not reported these break-ins at the time because he had a lot on his mind with the recent fire at the premises which was of more concern to him.

10. Senior Constable Anderson also said that Mr Bolger told him that he had CCTV cameras situated around the property, but they were not working at the time of the break-ins due to the power being cut off following the fire.

11. Detective Todd was the officer in charge of the case. He came into possession of the CCTV footage from 93 Johnston Street dated 16 May 2013.

12. Ian Holmes was a carpenter who went to the property on 18 March 2013 after the fire to inspect the damage and do a “make safe”. He spoke to Mr Bolger who he agreed was very forthcoming with information. He confirmed that Mr Bolger volunteered to him that his brother had ripped him off for $400,000, leaving him with very little in his account. Mr Holmes said he thought it was bizarre that Mr Bolger was telling him this as they were strangers. Mr Bolger also told him that “the place is insured for $850,000” and that he “should not have worried about calling the fire brigade because the house will never [be] the same”.

13. Jamie O’Neill gave evidence that he went to the house on 19 March 2013 to perform a further make safe after a break-in was reported at the premises. While he was there, he spoke to Mr Bolger who told him how the first fire started. Mr Bolger told him that his girlfriend was complaining about a bad smell, so he burnt some (presumably) aromatic oils to get rid of it. Mr Bolger told him that he was out the back in the pergola area cooking on the barbecue when he saw smoke and proceeded to get a garden hose. Mr Bolger also told him that he had an extensive amount of cash hidden throughout the house in different places, including in the roof cavity. Mr Bolger said that he kept cash in the house as he was in the business of buying scrap metal and often dealt with “druggies” who he paid in cash.

14. Mr Bolger also told Mr O’Neill that he was then going through the courts and owed a substantial sum of money to his brother or a family member. He recalled that the figure was around $300,000. Mr Bolger asked him if the property would be a write off. Mr O’Neill told him that it was unlikely. Mr O’Neill said that Mr Bolger told him that he wanted the house to be written off.

15. Marlon Dalton was a firefighter who attended the second fire at the property. He arrived in a fire engine and at that time saw a car that sped away “at a rate of knots”. He estimated that he was about 100 metres from the car when he saw it.

16. Detective Senior Constable Wallace became aware of the fires on 2 April 2013 while he was at Tamworth Police Station. He was advised that Mr Bolger had attended the station in order to provide a statement. Mr Bolger told him with respect to the events on 16 March 2013 that on one occasion he went into bedroom 2 to retrieve some towels, heard a noise, dropped down because he was visible through the window, heard the same noise again, looked outside and heard a noise outside. Mr Bolger told the officer that his heart was racing and that he dropped down to avoid being seen again. He grabbed a baseball bat that was in a corner, went into another room and checked the window. He did not hear a noise and so he locked the window and dropped the bat. Mr Bolger later told the detective that he had removed the hard drive for the CCTV system that night, with the permission of the police and the fire brigade and put it in his car. Detective Wallace denied that on the day of his interview Mr Bolger had taken the footage and put it in a safe place.

17. Detective Wallace arrested Mr Bolger on 25 July 2013. He was interviewed by the police. In particular, he was asked about the CCTV material. Mr Bolger was asked if he wished to make a comment about a particular portion of the video, but he said "Nup". Detective Wallace explained, for the record, that there was an image that was recorded "in the glass doors", and Mr Bolger said "Yeah, I can see that." Mr Bolger agreed that this action was what he had tried to explain to detectives during their walkthrough and that "it's in my, it's in my timeline, exactly that written down." He also commented that it was interesting to view the footage. Mr Bolger was asked if this was what he referred to during the walkthrough when he indicated that he had heard noises out the front, and he said, "I haven't got your transcript in all honestly [sic], I'm not being, just, like, jumpin' around or anything I haven't got the transcript or anything else, but I resume [sic, presume] that it would be of a similar nature".

18. Mr Bolger agreed that he had "come back across at 23.04 and 58 seconds" and that he was walking normally. It was suggested that he was carrying something, and Mr Bolger asked if they were towels. He then said "Well, that's what I was in there doing." Mr Bolger agreed that he then laid a jacket down on the couch, saying that he tended to get cold. Mr Bolger agreed that he then went outside and prepared a meal.

19. The footage was taken to "23.20" and Mr Bolger was again asked if he wished to make a comment. Mr Bolger said "What was I doin'?... I walked back in there, do I? I didn't even know I did that." Mr Bolger was then shown the footage at 23.21.58. He was asked if he wanted to make a comment, and he said "Nuh. Just me dog's outside." When asked if he wanted to make a comment about his reflection in the glass door, Mr Bolger said, "No. Why would I comment about that for?".

20. It was put to Mr Bolger that, "at 46 seconds here", there was an image of him walking back into the spare bedroom in a crouched position. He said "Yeah" and "Yep". Mr Bolger declined to comment further about this when offered the opportunity to do so. When Detective Pascoe suggested that he was carrying a bag he was removing from the spare bedroom in one hand and possibly some towels in the other, Mr Bolger said that he could remember the towels. Mr Bolger said that he had no idea about what appeared to be a dark coloured bag that he was carrying.

21. In the course of the interview, the video was forwarded to "23.28" and camera three was again enlarged. Mr Bolger said, "Gone in to get more things." Mr Bolger was then asked if he wished to comment on what he said, and he replied "No, that was probably when I heard more noises again…I already said that in that other thing." It was put to him that, as he came back out of the bedroom, he looked back into it. Mr Bolger said that it did not look to him as though he had done this.

22. Mr Bolger was shown footage of him around his home. It was then put to him that, a short time later, flames could be seen emanating from the bedroom. He said first that he did not know and then said that it "could be". He then agreed that it looked as though there was smoke, or mist, captured in camera 3 and that he could have accidentally “knocked the damn thing over". The footage was played, and observations were made by those present about the lights in the home going out.

23. The Crown maintained at trial that Mr Bolger had a financial motive to destroy the property by fire. In his remarks on sentence, his Honour reviewed this material in detail. It is convenient to set out his Honour’s summary of that evidence, taken from his remarks on sentence, as follows:

“[30] An aspect of the evidence in the trial, highly relevant in a range of ways to the findings of guilt were the financial circumstances of the offender at the time of the fire and of course his related emotional state.

[31] The offender’s father died in 2009. When he died he had an estate as I understand it comprising two farming properties and other assets including, as I would understand it, a substantial sum of money. The precise relationship of the estate to what was described as a ‘partnership’ that included the offender, his three siblings and the estate of his father was not entirely made clear during the course of the trial. But it would seem as if, after the father died, before the offender’s claim upon the estate could be resolved by the Supreme Court, the family had gone about, either divvying up, if that is the correct expression, or at least making use of the assets of the estate in a range of ways.

[32] The offender had commenced legal action before 2013 in the Supreme Court, it would seem to me to get more than the roughly one quarter of the estate that he had inherited. The merits of that claim are of no concern to me. The evidence and, as I understand it, the submissions of the parties to that litigation ran to 14 March 2013. That is, as I would understand it, the Friday before the first fire started. The learned Judge hearing the matter had reserved the Court’s decision. It is clear that the case had not gone well for the prisoner. The offender obviously knew this because he is recorded saying this after the fire. At one point to one of the NRMA representatives, in a conversation that was recorded, he contemplated that he would lose the case, but in some way it would be fixed upon an appeal. These comments were made, as I would understand it on the chronology, before the judgment was actually handed down. It showed, allowing for the fact that he may have received advice to this effect, a naïve approach to the significance of fact finding at first instance in litigation in the Supreme Court and the District Court.

[33] The offender was liable potentially, although costs at that point had not been ordered, to a considerable cost for running this litigation. The costs of the respective parties were estimated to be in the hundreds of thousands of dollars. On 14 March 2013 two of the members of the partnerships withdrew $315,000 from an account, a bank account in the name of the partnership of which the offender was a member with his siblings. The rights and wrongs of this withdrawal I do not know. But it certainly greatly affected the offender because he was very concerned about it. Immediately after the fire it seemed to occupy his thoughts as much as the effect upon him of the fire.

[34] He has produced in the sentencing proceedings, a reference from a brother that seems to make it a little clearer as to the fate of the money. He claimed in his letter that was tendered in this Court that the $315,000 withdrawn by two siblings, who apparently are not on good terms with the offender even up until the present time, went into ‘an interest-bearing account on behalf of the partnership’. So the money was not lost to the offender. But he did not see it that way or at least that is what he claimed to a number of people. The amount of money that he believed that had been taken out, varied in his claims, showed, with the greatest of respect to him, the erratic character of the representations that he made from time to time about his position.

[35] It is clear to me however that on 16 March the offender was aware of the withdrawal and understood it to be potentially a threat to his financial security, as was the fate or the course of the proceedings in the Supreme Court. He had at least two corporations that conducted businesses which apparently ran their business from his home. Although one of the corporations, or both corporations, used a property particularly at Werris Creek in relation to their work. One corporation had some role in road construction and its title represented that, the other corporation was concerned with metal recycling. His home office from the photographs of it, taken before the fire show it to be quite a professional set up as I would see it. He conducted some of his business directly from the house that was damaged by fire, buying and selling scrap metal. He had, up until the time of the fire, concerns for his security and he certainly had great concerns for the security of the property after the first fire. He had at least one secure safe. The CCTV system had been augmented late in 2012 to give him a greater peace of mind in relation to his security and increased the coverage of the house and its environs which was extensive. This was obvious from the footage available to the jury in the exhibits that were tendered. But it seems to me in the period of time through 2012 up until March 2013 his business affairs were in disarray. The EPA was threatening a prosecution in respect of a clean-up on the Werris Creek property that was apparently owned by the father’s estate but to which the offender obviously had access. I do not accept, as was suggested by the Crown in its final submissions, which were very helpful I hasten to say, that any of his companies were necessarily liable for the cost of a clean-up as cited by the Crown in its submissions. In any event as I think I pointed out last Tuesday afternoon, two days ago, now without the benefit of transcript, there did not appear to be any evidence in relation to the matter identified by the Crown of any moment. What was before the jury was the potential cost of a breach notice, issued by the EPA which is expressed in the hundreds of dollars. Not in hundreds of thousands of dollars.

[36] I also do not accept that the offender had, or believed that he, had any reasonable cause of action against the Adelaide based principal contractor which had created the difficulties for him and his company by the dumping of some of the material on the Werris Creek property that was the subject of a clean-up notice from the EPA. He had written through his solicitors a letter of demand claiming compensation in the hundreds of thousands of dollars, having been involved in performing a cleaning operation on the railway sidings at Werris Creek for which his corporation charged the Adelaide company something in the order of $12-14,000. The letter of demand was sent quite a number of months before March 2013 and there was no evidence of any follow-up to the letter of demand.

[37] His filing system and company affairs appeared to be in disarray in the months leading up to March 2013. Two office workers gave evidence of their temporary employment with him over this period of time to try and sort out his ‘paperwork’. In fact, one or other of them in her evidence revealed that his insurance policy for the house, that is contents and building insurance policy, or policies, were not up to date. They would seem to me to have lapsed. Thus, in August 2012 he first contacted the NRMA. We heard the recording of his conversations with the agent. He increased the coverage for the building policy to $800,000. In October 2012 it was increased to $850,000. The discussions with the agent for the NRMA I need not dwell upon. But it seems, as was submitted to me by the offender’s counsel, that part of the settlement of the figure was done on the basis of some representations made to him by the agents and also based upon some information the offender had been given, I accept in good faith, about the fact that his property may be under insured. Or had been under insured and the more realistic cost of replacing the building, which was substantially renovated over many years, was closer to the $800,000 mark than the original insurance policy coverage which was several hundred thousand dollars less.

[38] I accept, of course, that the Crown had available to it that evidence as part of its evidence of motive in the context of the offender’s financial difficulties. But there were also a number of reasons to believe that there was not anything necessarily sinister about the increase in coverage. I go back to the matter I raised earlier. It was unclear precisely what the insurance company would be required to pay, even if the insurance company was absolutely satisfied that the building had burnt down accidentally.

[39] The offender, however, in January and February 2013, as demonstrated in recordings of his conversations with representatives of a mortgage company, tried to increase his borrowings on the property from that mortgage company, which was a non-bank lender as I would understand it, although it may have been underwritten by a bank. He did so however without success. The recordings of those conversations, showing him trying to increase those amounts, reflect the circumstances of a person, in my view, in substantial financial trouble trying to increase the borrowings on his major asset, if it could be described as that, given that he held it as a trustee of a trust owning the house in which he lived and from which he carried out his business. The building was already highly geared in my view, given even the most optimistic valuation of the property. In fact, the mortgagee was not prepared to extend to the offender any further money under mortgage, as the offender knew before 16 March.

[40] His financial affairs were assessed by the forensic accountant who gave evidence in the trial. Whilst limited in its scope, that evidence, not fully reflective of the assets of the offender, showed a considerable amount of credit card debt and other debt and very little equity. By March 2013 the road construction and metal recycling business as I said, appeared to me to have been either inactive or not particularly productive. It seems to some extent this may have been because he was distracted by litigation in the Supreme Court, which I can understand.

[41] One of the referees who worked with him in one or other of the businesses, spoke of the success of the business in earlier years before 2013. That I do not doubt. But whatever profit the offender himself made out of the success of the business could not be found very well in the financial records available of the offender.

[42] The offender claimed to various people that he held thousands of dollars in the house at the time of the first fire. There is no evidence that those sums of money existed. In fact, he gave contradictory accounts at various times of how much money he had in the house, where it was held and what happened to it. I do not understand that the contents of the safe, that was shown in one of the photographs tendered in the trial were in fact damaged. There was never any independent evidence of the existence either of the cash, said to be in the house, or of its fate. It certainly did not find its way into the offender’s bank accounts it would seem. The offender, as at 16 March 2013 was very much optimistic about his financial circumstances, as his pre fire representations stated but was in truly significant financial difficulty at that time.”

24. The Crown case was not limited to these matters.

Mr Bolger’s submissions

25. Mr Bolger submitted in this Court that the jury could not reasonably have excluded an alternative view of these facts consistent with his innocence. He reasoned as follows.

26. On 16 March 2013 there was “an accidental fire to the treasured home of a paranoid man” caused by an oil burner while he was there with his dog. The home was poorly secured, and the likely cause of the fire some two weeks later was vandals. The jury had the benefit of clear evidence of Mr Bolger’s paranoia, not simply demonstrated by his CCTV system with cameras around the house, but also by the placement of mannequins visible through the windows set up to give the appearance that the home was occupied. There was also evidence of conversations suggesting he was untrusting of people.

27. Mr Bolger contested the suggestion of his so-called financial distress, preferring a view of the evidence that did not place him in dire financial circumstances. Alternatively, any such difficulties that he may have been experiencing were not so profound at the time of the first fire as to have motivated him to burn his house down: he had owned it for 20 years and was very proud of it.

28. Mr Bolger’s business sent a letter of demand to CIMC Waste Management, asserting that he was owed in excess of $200,000. The Crown contended that the demand was unfounded. Mr Bolger maintained that he held a genuine belief that he had a valid claim, supported by the fact that he had instructed his solicitors to issue the letter.

29. In relation to the $315,000 withdrawn from the bank account by his siblings, Mr Bolger suggested that he was taking what he considered to be appropriate action to reverse the transfer, relying upon the fact of his having made an appointment with his lawyers to deal with it. In response to the Crown’s suggestion that his reaction to the transfer indicated that he was upset by it, Mr Bolger maintained that it was an emotional matter and he had a genuine sense of loss. His reaction did not more generally reflect personal concerns about his financial situation.

30. Mr Bolger insisted that his estimates of the value of his house were not inflated, having regard to improvements effected to it. Mr Bolger relied upon the evidence of his acquaintance, Justin Brookes, who said that he had many years of experience in real estate and that in his opinion people notoriously underinsured their homes. That was why he advised Mr Bolger to “bump up” his cover. Mr Bolger referred to the evidence of Scott Edwards, an NRMA employee, who valued the house at $764,000 without making any allowance for things such as a swimming pool and landscaping.

31. Mr Bolger also relied upon the evidence of recorded conversations with the NRMA in August and October 2012. He emphasised the fact that the representative told Mr Bolger that “we don’t want to underinsure your building” and that he spoke to Mr Bolger about items he inherited from his father that went to the estimate of the value of the contents. In particular, one insurance representative, Ms Travieso, told Mr Bolger that he could go as high as $960,000 but he only insured the house for $850,000. Terence Pinkerton, the NRMA claims manager, agreed in cross-examination that the lowest sum for which the house could be insured was $780,000.

32. Mr Bolger submitted that the evidence indicated that the value of the house was not over-estimated and that it was not insured for an artificially inflated sum.

33. Mr Bolger also prayed in aid of his response to the Crown case the evidence of what was revealed in the CCTV material. In particular, he emphasised what it showed shortly before 21:00 hours on the night of the first fire, with Mr Bolger lighting various candles and oil burners throughout the house. At 21:25 hours, Mr Bolger can be seen to be cleaning a coffee table, an activity that he contended was inconsistent with someone contemplating burning down his house a short time later.

34. In addition, at 22:20 hours, Mr Bolger’s full height reflection can be seen in the glass door. He submitted that this rebutted the Crown’s contention that he had been crouching to avoid the hallway camera. Mr Bolger relied on the CCTV footage, in combination with the evidence of Mr Pryor who helped him install the CCTV system, to demonstrate that it was not necessary for someone of Mr Bolger’s height to crouch in order to avoid detection by the hallway camera, and that he could walk from door to door without being seen and he knew that.

35. Mr Bolger also submitted that it was apparent from what the CCTV footage revealed, and from the plan of the house and the pictures of the front door, that it would have been necessary for him to crouch when walking between bedrooms 1 and 2 past the glass in the upper half of that door if he had wanted to do so without being seen from the outside. This submission was allied to the proposition that Mr Bolger was both security conscious and paranoid. Mr Bolger contended that this was the preferred interpretation of his crouching movements, rather than the suggestion that he was attempting to avoid being caught on camera. Additionally, there was said to be no basis for Mr Bolger to be passing between these two rooms in any event, given that on the Crown case the fire was initiated in bedroom 1.

36. Mr Bolger referred to the evidence of Senior Constable Kentwell, who recalled that when he responded to the 000-call following the first fire, he observed Mr Bolger attempting to put it out, and that he had to be treated for smoke inhalation. Mr Bolger told the officer that he had been burning candles to mask the smell and volunteered “something” about the CCTV footage. Constable Wolds was also told about the CCTV.

37. Mr Cafe, an expert, gave evidence about the importance of the distinct hole in the oil burner found near the source of the fire. It was his opinion that the flame likely went from the oil burner to the windowsill and from there to the blinds. He considered that the fire was probably accidental, although he could not rule out the possibility that it was deliberately lit. Mr Munday, another expert, offered an opinion to the opposite effect. Mr Bolger emphasised that if Mr Munday’s opinion was preferred or accepted, it would not be open to the jury in the circumstances to exclude the possibility that the fire occurred accidentally.

38. In summary, Mr Bolger drew upon some remarks offered by his Honour when sentencing Mr Bolger and submitted that “the timing of [Mr Bolger’s] apparent likelihood of losing the Supreme Court action and the $315,000 transfer very soon before the fire may have supported, at least in an equivocal sense, a momentary deluded sense of motive to deliberately light the fire; and that [Mr Bolger’s] contradictory behaviour in immediately calling 000 and putting himself in danger in trying to fight the fire with a garden hose and even assist the fire fighters to access the fire via the front door right next to the seat of the fire, at significant personal danger, was perhaps the result of momentary madness and an immediate change of heart”. Mr Bolger submitted that his Honour’s assessment in this regard “was perhaps the only intellectual analysis available of all the facts and circumstances which could possibly justify the jury’s verdict that Mr Bolger deliberately lit the fire as opposed to what is submitted is the more compelling inference that such conduct on its face was more consistent with this being an accidental fire”.

39. Mr Bolger also submitted that this conduct was more consistent with an accidental fire in light of the evidence regarding his love of the house and its contents, that he stayed at the property when the fire was alight and that he had not removed any items from the house, some of which were of great sentimental value. Moreover, the fire fighters reported no suspicious circumstances following the first fire and the police only began seriously investigating the first fire after the second fire. It is also noted by reference to the available footage that Mr Bolger left the door to the house from the barbecue area open when he left that area and “his beloved dog could have entered the house and been endangered where on the Crown case he had already lit the fire”. Also, when he discovered the fire and apparently urgently went to call 000, Mr Bolger left the door open in circumstances that could have permitted his dog to enter into the area of the seat of the fire and to have been seriously injured. Mr Bolger submitted that if he had deliberately lit the fire, it would be expected that he would have at least made certain that his dog was locked outside at all relevant times.

40. All the other evidence regarding any inconsistencies in his accounts to various people as to how the fire started was, upon close analysis, consistent with Mr Bolger’s asserted belief that this was an accident. He simply surmised, as far as he could determine, that the candle/incense burner either accidentally ignited something nearby or that he had accidentally knocked over a candle. The increase in the insurance upon closer analysis appeared to be appropriate and importantly was not increased as much as it could have been, as invited by the NRMA agent Ms Travieso in October 2012, some five months before the fire. Any inferences that Mr Bolger believed the property should be “written off” were equivocal as to whether he hoped to receive a cash pay-out as opposed to a total re-build and even that inference offered equivocal support for the suggestion that he lit the fire deliberately. In any event, Mr Bolger ultimately said he wanted the house repaired before the second fire. It was further agreed by Mr Pinkerton of NRMA that Mr Bolger, through his representative, indicated that he did not wish to have a cash settlement with respect to either the contents or the building and that he was happy for NRMA to reinstate the building to its former condition.

41. While Mr Bolger conceded that his crouching behaviour “was certainly unusual”, it was also consistent with him exhibiting paranoid behaviour about intruders. More importantly in this regard, it would appear from the CCTV footage, the plan of the house and the photos of the front door that it would have been necessary to crouch when proceeding from bedroom 1 to bedroom 2 past the glass in the upper half of the front door in order to avoid being seen by someone who was outside. Mr Bolger maintained that this interpretation was to be preferred to one that postulated his perception of the need to avoid being captured acting suspiciously by the relevant CCTV camera. Also, given on the balance of the evidence that the fire was only initiated in bedroom 1, Mr Bolger submitted that there was no basis for him to be sensitive about being seen moving between the two rooms, as opposed to being seen coming out of bedroom 1.

42. Mr Bolger submitted on balance that the jury should have at least entertained a reasonable doubt. He submitted that the evidence does not support the convictions. Mr Bolger contended that the alleged financial motive is equivocal and that the overall evidence is more supportive of the fire being an accident. Mr Bolger immediately called 000 and “bravely fought the fire and assisted the fire fighters at significant risk to his personal safety and even suffered smoke inhalation”. That is favourably to be contrasted with the circumstances in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 where the accused took flight. Mr Bolger submitted that the jury in the present case must at least have entertained a reasonable doubt.

Crown submissions in this Court

43. The Crown submissions in this Court necessarily included further detail of factual matters to which considerable reference has already been made. However, despite the prospect of some duplication, it is necessary that the following submissions are reproduced in these reasons.

44. In June 2010, Mr Bolger commenced proceedings in the Supreme Court of NSW contesting aspects of the Will of his late father seeking additional family provision under it. The respondents to those proceedings were Mr Bolger's brother and sister, the executors of their father's Will. In an affidavit sworn by Mr Bolger in those proceedings, providing details of his personal financial position, Mr Bolger estimated the value of the house to be $420,000 and the value of the contents to be $100,000.

45. On 17 August 2012, in a telephone conversation with Jeff Chen of NRMA Insurance, Mr Bolger increased the insurance on the house to $750,000 and on the contents to $350,000, comprising $250,000 for general items and $100,000 for artworks, or $1.1 million in total. The existing policy, which had lapsed earlier in the year, was a building and contents combined policy of approximately $802,000, with cover of about $590,000 for the house and $212,000 for contents. On 8 October 2012, in a telephone conversation with Georgina Travieso of NRMA Insurance, Mr Bolger increased the insurance on the house to $850,000 and the contents to $450,000, comprising $350,000 for general contents, with the artwork cover remaining unchanged at $100,000, totalling $1.3 million.

46. On 25 January 2013, in a telephone conversation with "Karen" of Bluestone Mortgages, the mortgagee with security over the property, Mr Bolger applied to increase his loan. He told Karen about the Supreme Court proceedings which he said had been "costing [him] a fortune". Mr Bolger said he was "after around fifty grand". On 9 February 2013, Kingsley Agnew (a registered property valuer) inspected the house and determined that the insurance replacement value of the house was $505,000. The market value was determined at $525,000. The valuation was carried out at the request of Bluestone Administrative Services Pty Ltd, further to Mr Bolger's application to increase his loan.

47. On 15 February 2013, Mr Bolger again spoke to Karen of Bluestone Mortgages. She advised him that his application for a loan increase had not been successful, "mainly because the property is too low in value". On the same day, Mr Bolger was able to process a redraw, allowing him to access $8,976.

48. In a later affidavit sworn by Mr Bolger in the Supreme Court proceedings, Mr Bolger affirmed his personal financial position by stating that the value of the contents of his house was $100,000.00. The affidavit deposed to credit card debts exceeding $64,000.

49. The Supreme Court hearing commenced on 25 February 2013. There were discussions about legal costs. The costs for the defence were said to be approximately $270,000 if the hearing went for four days, and approximately $350,000 for Mr Bolger. The case ended up running for five days and on 14 March 2013 the decision was reserved.

50. On the same day (14 March 2013), in consultation with their barrister and without Mr Bolger's knowledge, Nicholas Bolger and his sister Joanne transferred approximately $315,000 out of the Keera Partnership Account (of which Mr Bolger and his siblings were all partners) and into another account. Mr Bolger became aware that this money had been transferred out of the Keera Partnership account on the day of the first fire. After the first fire, Mr Bolger complained to several people about this transaction, on one occasion saying that money had been "ripped" from his account.

51. On 11 April 2013, Mr Bolger told Joseph Khalifeh (a private investigator engaged by NRMA), that he had no credit cards. However, evidence from Christopher Stavenhagen, an accountant who analysed Mr Bolger's financial position, indicated that as at 16 March 2013, Mr Bolger had credit card debts on five separate cards exceeding $113,000.

43. On 14 August 2013, Mr Bolger was recorded speaking by phone to Terry Pinkerton of NRMA Insurance. During that conversation, Mr Bolger confirmed that he was in the process of appealing against the decision in the Supreme Court proceedings. Mr Bolger said that "what happened was, we went into court … knowing full well, or part thereof, that … we would lose" and "this one in court is a tactical move". He said that "we knew the outcome was going to go - not go in our favour", but that now they were in a "position to attack it". In the same conversation, Mr Bolger discussed his efforts to list the contents that had been destroyed and said, "I'm over 500 … 600,000 already on contents and I've only done … half of it … I'm way under insured for what I had".

44. It will be apparent that the Crown relied upon the CCTV material that showed Mr Bolger crouching in some of his movements around the house on the night of the first fire. The Crown case theory with respect to what it characterised as suspicious behaviour has already been exposed and requires no further elaboration.

45. However, a significant part of the Crown case at trial, and of the Crown’s contentions in this Court, centred around what the jury might reasonably have been expected to make of Mr Bolger’s conduct and representations after the first fire. Mr Bolger did not give evidence, so the Crown relied significantly upon what Mr Bolger did and said after the fire in order to characterise his behaviour as suspicious, or as behaviour from which the jury might reasonably have inferentially concluded that the first fire was deliberately lit by him. The following analysis is taken from paragraphs 36 to 69 of the Crown’s written submissions in this Court: it provides a convenient summary in chronological order of Mr Bolger’s representations about the fire according to the recollection of various witnesses. It is not suggested that Mr Bolger accepts the truth or accuracy of the versions given by the witnesses concerned.

16 March 2013

55. After the first fire had been extinguished, Mr Bolger told Senior Constable Kentwell, “I had candles in there, they must have caught on something”. He also said “… there have been bad smells coming from that room for a bit now. It smells like a dead rat or mouse. I was burning some smelly candles and had some burning essence dishes going to cover up the smell. They were sitting pretty close to the window and curtain, one must have caught on”. Officer Wolds gave evidence that Mr Bolger also “told us he had video surveillance of his house which may show the cause of the fire”.

56. Mr Bolger told a neighbour, Thomas Mitchell, that he was at the back of his house having a barbecue and that “he’d come back inside and heard a crackling sound”. Mr Bolger did not say anything about seeing smoke, “he just said he heard crackling sounds”. He told Mr Michell that “he assumed that the curtains had caught alight, or a candle had fallen over”.

57. Bryan Hoy was a deputy captain employed by Fire and Rescue New South Wales who attended the house with his crew after receiving a notification of the fire at 10.36pm. Mr Bolger told Mr Hoy that there were several scented pots throughout the house and one was in the front bedroom on a stand under the window.

17 March 2013

58. Mr Bolger told a neighbour Andrew Hillier that there was a mouse in the house that he had caught behind the fridge and that his partner told him to get rid of the smell. He told Mr Hillier that he lit the candle with the oil and that the oil got too hot and melted through and “that’s what caused the fire”. Mr Bolger said that he lit the candle in one of the front bedrooms. Contrary to Mr Bolger’s written submissions, Mr Hillier did not give evidence that Mr Bolger told him that he was in bedroom 1 around the time that the first fire started. The Crown submitted that such a conclusion was not implicit in what Mr Bolger told Mr Hillier.

59. Mr Bolger told Ian Holmes of Daltrak that “his brother had ripped – I think ‘ripped’ was the right word – 400,000 out of his account left him with about $385”. Mr Bolger showed Mr Holmes an oil burner that “he said caused the fire”. Mr Bolger told Mr Holmes that “when the fire started, he was cooking a barbecue and he showed me the beer that he was drinking that was still sitting there”. He said he became aware of the fire when “the lights started flickering”.

60. Mr Bolger spoke to another neighbour, Geoffrey Francis, saying that he had lit a candle in the bedroom, and another one in another part of the house and that he believed that the wind blew the curtain in, which caught fire from the candle. Mr Bolger told Mr Francis that it then blew onto the bed quilt, which caught alight. He said that, before the fire, “he was out the back, cooking a barbecue for himself”.

61. After the first fire Mr Bolger asked his friend, Julie McRae, if he could store some things in her shed. He came to her house on 17 March 2013 and told her about the fire. She told him the spare key to the shed was in a ceramic frog on her back veranda. He did not go into too much detail about the fire but mentioned a barbecue, noises and a fragrant oil burner. Ms McRae was later present when police seized the CCTV hard drive on 17 April 2013.

62. On the same day, Mr Bolger also spoke to John Strudwick, Ms McRae’s ex-partner, at her house. Ms McRae was not present. Mr Bolger told Mr Strudwick that “he was cooking food on the barbecue in the backyard, he saw the lights flicker inside the house and he ran in to find the fire”. Mr Bolger said “he was out the back on the barbecue and the light flicked and he thought it had just blown a fuse in one part of the house. He then smelt smoke and ran in and he saw fire which was well alight by then and he got, got back out. He also said that there… were monitors in and around the home that had captured the fire commencing and he had for anyone who wanted to see it”.

63. On 6 April 2013, Mr Strudwick returned to Ms McRae’s property to fix the shed. Mr Strudwick was a home insurance assessor for NRMA Insurance at the time and had previously worked with Terry Johnson, the NRMA assessor in relation to the first fire. As a result of seeing various items in the shed he had a conversation with Mr Johnson, leading to police executing a search warrant on 17 April 2013 when the CCTV hard drive was seized.

64. Mr Bolger reported the fire to NRMA Insurance by telephone, speaking to Evelyn Gibbs. During that conversation, Mr Bolger said that “we presume” that an oil burner caused the fire. He told her “that was the only thing going at the time”, “three of them going in the house” and “there was no candles”. He said he was outside having tea “out the back”. He said he had a lot of cash in the house, which had been burnt. He told Ms Gibbs that he had video surveillance and that “if you want to see it, it’s all on the video of where I was, and what I was doing and what times I was doing it”. Mr Bolger referred to his brother. He said, “real little fucking pricks … I just found out late yesterday afternoon that they removed nearly $400,000 out of our account”.

18 March 2013

65. Mr Bolger had a telephone conversation with “Tracey” of NRMA Insurance at 11.30am. He gave an account of the first fire, saying that he was outside cooking a barbecue when he saw some lights go out. He heard the smoke alarms and went inside. He said that after he discovered the fire, but before the arrival of the fire brigade, he ran in and grabbed the security system. When Tracey said to Mr Bolger “you were just lucky that you weren’t inside at the time”, Mr Bolger said “I was just having a bit of time out for myself. So, one way it was good that I did make that decision and sat outside”.

66. Mr Bolger had a brief conversation with NRMA Insurance claims assessor Terry Johnson at the house and told him that “he believed the fire started below the front bedroom window with an oil burner”. During the conversation, Mr Bolger “stated that the home was in a bad area and that he had problems with people in the area” and he mentioned that he was concerned about the security of the house and “was going to get a guard dog”. However, Mr Bolger did not say anything to Mr Johnson about the house being broken into the night before or that property had been stolen.

67. “A few days” after the first fire, Mr Bolger told Allan McDermott, Mr Bolger’s partner’s sister’s husband, that “he had an oil burner beside his bed, there was a crack in the bottom of it, that the oil had leaked out and the sheets caught alight”.

19 March 2013

68. At about 2pm, Terry Johnson of NRMA Insurance returned to the house and spoke to Mr Bolger. On this occasion, Mr Bolger told Mr Johnston that there had been two break-ins on the Sunday night and the Monday night (17 and 18 March 2013). He said that two computers were stolen. He told Mr Johnson that “he had had an intruder in there and they put a fire extinguisher dust all through that area over completely everything and also stole certain items”. Mr Johnson saw fire extinguisher dust in the lounge room and undamaged bedrooms, “right through the home”. Mr Bolger told Mr Johnson that he had removed the security system from the office. In relation to the first fire, Mr Bolger said that “he was cooking meat on the barbecue, having a beer and he saw the lights in the carport which were on the opposite side to where his barbecue is. He saw them flickering. Next minute he heard the fire alarm going”. Mr Bolger showed Mr Johnson a bank statement and referred to money being removed from his account in relation to a court case about “an ongoing problem with his dad’s will through the family”.

69. Mr Bolger told Jamie O’Neill of Daltrak, who attended the house at the request of NRMA Insurance, that he owed his brother or a family member about $300,000. He told Mr O’Neill that his girlfriend was complaining about a bad smell in the bedroom where the fire started. He said, “that he mixed some oil beside their bedside table and he was out the back in that pergola area cooking a barbecue or steak or something and then he saw the smoke and proceeded to get a garden hose”. He said, “it was a normal oil but mixed with like a cooking oil or something like that”.

70. Mr Bolger spoke to Senior Constable Witchard who attended the house with Constable Anderson at about 5.15pm following a complaint by Mr Bolger to police “in relation to an alleged break and enter”. At the time, Mr O’Neill of Daltrak was also at the house. Constable Witchard saw the white powder and Mr Bolger told him that he (Mr Bolger) had discharged the white powder from his fire extinguisher over furniture in the house “so if they break in again there will be fingerprints left behind”.

20 March 2013

71. In a telephone call, Mr Bolger told Terry Pinkerton, a Claims Inquiry Co-ordinator for NRMA Insurance, that he had taken a computer from the house on the night of the first fire. He also said that “he believed an oil burner was responsible for the first fire”.

21 March 2013

72. Mr Bolger spoke to James Munday, a fire investigator who attended the house at the request of NRMA Insurance. Mr Bolger told Mr Munday that he had placed three oil burners in the house to conceal a bad odour and that one “was placed on top of a loudspeaker cabinet under the window” in bedroom 1. Mr Bolger said that he “cooked some food using the barbecue on the rear patio at about 7.30pm and sat outside with his dog to eat and drink beer and relax. There were candles and incense burning outside and music playing. Sometime later, estimated as about one and a half hours after eating, the carport lights went off and soon after that he heard the smoke alarm operate. Mr Bolger entered the house and was confronted by thick smoke entering the kitchen/dining room area from the front hallway. There was no mention of Mr Bolger being in bedroom 1 at around the time the fire started or crouching down or suspecting the presence of intruders.

27 March 2013

73. Mr Bolger told Gary Kelly, a cleaner engaged by NRMA Insurance who attended the house, about the white powder in the living/dining area, and that when the intruders “broke into the place they got a fire extinguisher and sprayed it all around the premises”. He also said that the thieves had turned on a hose and saturated two bedrooms that were not fire affected but only smoke damaged. Mr Bolger did not discuss the first fire with Mr Kelly.

2 April 2013 (date of the second fire)

74. After the second fire, Mr Bolger gave a statement to police dated 2 April 2013 in relation to both fires. Mr Bolger’s version in relation to the first fire referred to him being “at home in the pool patio area … having a barbecue by myself”, and that “at this time a fire has started in the front bedroom”. Mr Bolger said that “the first thing I noticed was the lights on the garage side of the house went out. The lights are sensors. I thought at the time the light may have blown as I had just had them replaced. I then heard a beeper sound. I then walked into the house and there was cloud of smoke in the dining room area”.

75. In none of his dealings with any of these witnesses did Mr Bolger make any reference to being in bedroom 1 at around the time the fire started or to crouching down or to suspecting the presence of intruders.

11 April 2013

76. Mr Bolger was interviewed by a private investigator, Joseph Khalifeh, acting at the request of NRMA Insurance. The interview was recorded. During the interview, Mr Bolger (falsely) told Mr Khalifeh that the CCTV hard drive had been stolen during a break-in at the house on 17 March 2013. He was asked whether he had considered removing the CCTV system after the first fire and he said he did not think of doing so because he didn’t know whether “they were going to turn the power back on … it’s all hooked up to the power”. Despite later claiming that he lied to Mr Khalifeh because he did not really know who he was, Mr Bolger was prepared to provide him with a large amount of information in the interview on a large range of topics. Mr Bolger gave a very detailed version of the first fire that referred to him being outside at the pool area immediately prior to becoming aware of it but made no mention of being in bedroom 1 at around the time it started, crouching down or suspecting the presence of intruders. However, Mr Bolger did (for the first time) suggest that the first fire may have been caused by an intruder trying to get into the house and knocking over the oil burner, although he specifically denied hearing anything that caused him to suspect that may have been the case. Mr Bolger said, “somebody could have been trying to get into the house, ‘cause I can’t hear up that end – and may have tipped it over”.

77. Based on Mr Bolger’s lies to Mr Khalifeh concerning the whereabouts of the CCTV hard drive, the Crown contended that it is reasonable to infer that by this time Mr Bolger had had the opportunity of viewing the CCTV footage. As noted above, the CCTV hard drive was seized by police during a search of Julie McRae’s shed on 17 April 2013. On his own version, from 19 April 2013, Mr Bolger was aware that the police were in possession of the CCTV footage so that police (and NRMA Insurance) would have access to it. It was from about this time that Mr Bolger gave a version of the first fire that significantly differed from earlier versions and specifically referred to being in bedroom 1 at around the time the fire started, of crouching down, and of suspecting the presence of intruders.

“Roughly a week or two after the second fire (i.e. roughly mid-April 2013)”

78. Mr Bolger had a further conversation with his neighbour Mr Michell about the first fire. Mr Mitchell said that Mr Bolger “was telling me that he thought someone was breaking into his house and grabbed the baseball bat and ran from bedroom 1 to bedroom 2 where a big safe had been held, and he thought someone was trying to getting [sic, get] into his safe. And he thinks he knocked over maybe a candle at that stage or the wind blew it over”.

May or June 2013

79. Mr Bolger told his friend Justin Brooks about how the first fire occurred, saying that “he believed it was an oil burner in his bedroom … he knocked it over accidentally by looking at something outside”. Mr Bolger said that “he thought that it may have happened when he heard somebody out the front and he’s lifted up his blind which is the … white blind with the rods in it, he heard a noise, he’s dropped that and gone to another room and come back”.

“Could have been couple of months after the first fire”

80. Mr Bolger had a further conversation with Mr McDermott about the first fire. Mr Bolger told Mr McDermott that “the fire occurred by him walking past his bedside table, bumping something with his jeans or pants and it fell to the ground, he didn’t notice it and that’s how the fire started, by him knocking something over”. Mr Bolger said that the police had a tape of him knocking something over and they were setting him up. Mr Bolger said, “They’ve got it on camera. I think the police are setting me up”.

13 June 2013

81. A report dated 11 June 2013 from M J Leigh and Associates (acting on behalf of Mr Bolger) was received by NRMA Insurance. Annexed to the report was a “Time-line of events Statement of Paul Bolger” prepared by Mr Bolger. In that document, Mr Bolger gave a detailed account of the first fire, which included reference to being in bedroom 1 at around the time the fire started, crouching down and suspecting the presence of intruders. The version also asserted that at the time of giving his police statement on 2 April 2013, Mr Bolger told Detective Wallace that he had the CCTV footage in “a safe place”. However, Detective Wallace gave evidence that he did not have any conversation with Mr Bolger about the CCTV footage on that date. Mr Bolger also said in his version of events that he had accessed Ms McRae’s shed on occasions after the fire when she was not there. He said that he became aware that police had seized the CCTV hard drive on 19 April 2013.

19 June 2013

82. Police (including Detective Wallace) conducted a videotaped “walk through” at the house with Mr Bolger present. During the walk through, Mr Bolger gave a detailed version of the first fire that included reference to being in bedroom 1 at around the time the fire started, crouching down and suspecting the presence of intruders. He told police that he heard a noise while he was walking around in the house, dropped down to look through the window and went and picked up a baseball bat. Mr Bolger said that, after the fire was out, he removed the video surveillance hard drive from his office, after getting permission from police to do so. He went on to say that he told Detective Wallace that he had taken the video surveillance hard drive. Specifically, Mr Bolger suggested to Detective Wallace that when he had given his statement, Detective Wallace asked him where the CCTV video was and he said, “I’ve got it in a safe place”. Detective Wallace replied, “No, it wasn’t me you spoke to mate”. As noted above, Detective Wallace also gave evidence that there was no such conversation. Mr Bolger agreed that on the night of the first fire he had not told the police anything about hearing noises out the front that he thought might have been intruders. He also agreed that he had not mentioned this in his statement signed on 2 April 2013, saying, “I couldn’t recall any of that”. Mr Bolger said that he could not “recall at the moment … right at … at the moment” whether he had taken the CCTV hard drive out of Ms McRae’s shed. He said that he could not recall taking anything out of the shed despite the fact that his “timeline” of events submitted to NRMA shortly before had indicated two specific occasions when he had done so.

16 July 2013

83. Mr Bolger took part in a further interview with Mr Khalifeh. He admitted that he lied in his first interview on 11 April 2013 when he told Mr Khalifeh that the CCTV hard drive had been stolen. He agreed that when he spoke to Mr Khalifeh again on 12 April 2013, he had again (falsely) told him that the CCTV hard drive had been stolen. Mr Bolger said that he lied to Mr Khalifeh because, among other things, “I didn’t really know who you were”. Mr Bolger maintained that he had told Detective Wallace on 2 April 2013 about removing the video surveillance hard drive.

27 July 2013

84. Mr Bolger was interviewed by police and charged in relation to the first fire. Portions of the CCTV footage were played to him during the interview. He declined to comment about footage showing his reflection in the rear glass door. During the interview Mr Bolger said (of the oil burner), “I could have knocked the damn thing over, I’ve always said that”. The suggestion that Mr Bolger might have accidentally started the fire by knocking over an oil burner or similar was not made until roughly mid-April 2013.

29 July 2013

85. Police lawfully intercepted a telephone call between Mr Bolger and a friend, Cathryn Byrne. During the call, Mr Bolger discussed the fact that the police had the CCTV footage of the first fire. He told Ms Byrne that he took the video and that he “didn’t want them looking straight at it”. He said, presumably referring to his timeline of events, “what I’ve written out … lines up basically with what’s on the video”.

Consideration

86. In my opinion, although I would grant Mr Bolger leave to appeal out of time, I consider that his appeal should be dismissed. This is for the following reasons.

87. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], the High Court stated the test in these now familiar terms:

“[113] … But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.”

88. To similar effect is the equally familiar formulation in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-4:

“The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’…

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

…

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (Citations omitted.)

89. The thrust of Mr Bolger’s submissions in this trial is that there were several good reasons why he might not be expected to have set fire to his house. He was house proud. He had owned the house for a long time and had spent money improving it. The house contained personal items of sentimental value that had not been removed. Mr Bolger was the one who called the fire brigade. Mr Bolger stayed at the house when it was alight and attempted to extinguish the fire. He risked his health and safety in doing so. Whereas his behaviour walking in a crouched stance between bedrooms was “certainly unusual”, it was also consistent with Mr Bolger exhibiting paranoid behaviour about intruders. Moreover, Mr Bolger gave versions to neighbours and first responders in which he clearly and voluntarily admitted that he had been in the bedroom where the fire started and around the time that it did. Mr Bolger maintained that the financial motive suggested by the Crown was “equivocal”. Fire fighters reported nothing suspicious following the fire and the police only investigated the first fire after the second fire. Finally, it is unthinkable that Mr Bolger set the fire as he left the door to the barbecue area open when he left the house, thereby potentially imperilling the safety of his “beloved” dog.

90. As true as it may be that there were several competing reasons to suggest Mr Bolger did not light the fire, they amount to no more than a series of available alternatives among which the jury were entitled to choose in coming to their ultimate conclusions. Whether to accept or reject these things as the truth was a decision entirely for the jury to make. Mr Bolger’s submissions specifically accept that the things the evidence establishes he did can be characterised as equivocal, that is to say, open to more than one interpretation. He then argues that the fact that the jury did not accept his interpretation about how they should be characterised, leads to the result that the verdict was unreasonable. However, that simply does not follow: it is in effect no more and no less than a complaint that the jury made the wrong choice and that for that reason their verdict should not be allowed to stand. Mr Bolger’s submission does not, and cannot, lead to a conclusion that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt the interpretation for which the Crown contended should be accepted and that Mr Bolger was guilty.

91. Mr Bolger inferentially asks this Court to conclude that the jury must necessarily have rejected all available hypotheses arising from the proven facts that were consistent with his innocence and that to have done so in the circumstances was unreasonable. For example, Mr Bolger contends that one such available hypothesis was that he was innocently moving between the site of ignition in bedroom 1 and another bedroom in a crouched position before the fire started and that this behaviour was explicable by reference to his avowed fear of intruders. That much can undoubtedly be accepted as a possibility. It is not, however, the only available explanation and its rejection was neither inevitable nor unreasonable. It was the jury’s task to weigh up and consider this evidence, not in a piecemeal fashion but in the context of the evidence as a whole and it was clearly open to the jury to reject what Mr Bolger would characterise as an innocuous interpretation of his behaviour.

92. When regard is had to the whole of the evidence, it is difficult not to conclude that the Crown case against Mr Bolger was strong. Among other things, the evidence relating to the way in which Mr Bolger spoke to and dealt with a large number of witnesses after the fire suggested that he was intent upon exculpating himself and that his protestations of innocence were inconsistent with what might ordinarily have been expected from a person who did not set the fire. The suggestion that Mr Bolger might accidentally have knocked or dislodged an aromatic candle or oil burner without also realising that it could start, or had started, a fire seems to me to be so inconsistent with common experience as to be untrue. Whatever the jury actually made of that evidence, it was part of the whole of the evidence that they were entitled to consider. It was not such that would lead me to conclude that the jury must, as distinct from might, together with the whole of the remaining evidence, have entertained a reasonable doubt about Mr Bolger’s guilt.

93. The circumstances in which the CCTV video came to be found in the shed, and Mr Bolger’s explanations about how it got there, are also compellingly consistent with his guilt. It was open to the jury in my view to conclude that Mr Bolger’s apparent sensitivity about the footage was coextensive with its depiction of him moving about the house in a suspicious, rather than in an innocuous, manner shortly before the fire erupted.

94. In the present case, there are no true inconsistencies in the evidence in the sense that they are irreconcilable with the finding of Mr Bolger’s guilt. At best for Mr Bolger is the fact that the evidence is capable of more than one interpretation or, in the terms of his submissions in this Court, evidence that is arguably equivocal. However, Mr Bolger has not demonstrated in this appeal that the jury should have accepted the competing interpretations for which he contends or that the interpretations apparently accepted by the jury were not reasonably open to them or that they must therefore have entertained a reasonable doubt about his guilt. Having reviewed the evidence in detail, in no sense do I consider that it would be dangerous in all the circumstances to allow the guilty verdict to stand.

95. ADAMSON J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. Having reviewed all of the evidence in the trial, I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of counts 1 and 2.

96. BELLEW J: I have undertaken my own review of the evidence and am satisfied that it was open to the jury to find the applicant guilty of counts 1 and 2. I therefore agree with the orders proposed by Harrison J.

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Decision last updated: 16 July 2021