Colquhoun v The King - [2025] NSWCCA 12

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Colquhoun v R [2025] NSWCCA 12
Hearing dates: 6 December 2024
Date of orders: 19 February 2025
Decision date: 19 February 2025
Before: Basten AJA at [1];
Dhanji J at [147];
Sweeney J at [148]
Decision:
(1)   Grant the applicant leave to appeal from his convictions on counts 1, 2, 4, 5, 6, 7, 9 and 10.
(2)   Dismiss the applicant’s notice of motion seeking to challenge the refusal by the Chief Judge at Common Law to order persons to produce documents or attend for the purposes of the appeal.
(3)   Dismiss the applicant’s motion seeking leave to rely upon further evidence on the appeal.
(4)   Dismiss the appeal.

Catchwords:
CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant
CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege
CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused

Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases Cited:
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
DW v The Queen [1991] 1 SCR 742
Johnson v Western Australia [2008] WASCA 164; 186 A Crim R 531
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
R v Birks (1990) 19 NSWLR 677

Category: Principal judgment
Parties: Darren Mark Colquhoun (Applicant) (unrepresented)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
S Lind (Respondent)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/153768
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 December 2023

Before:

Judge O’Brien

File Number(s):

2021/153768

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between December 2019 and January 2020, the Shoalhaven area on the south coast was severely affected by a major bushfire. The applicant, Darren Mark Colquhoun, owned a property at Barringella. In the early hours of 5 January 2020, the house was destroyed by fire. Immediately following the destruction of his house, the applicant made a claim on his insurer, which was paid. In the following weeks, the applicant successfully made a number of claims for financial assistance from government agencies and charities which were assisting bushfire victims.

After a police investigation, the applicant was charged with dishonestly destroying his own property by fire, eight counts of dishonestly obtaining a financial advantage, and one count of dealing with the proceeds of crime. In June 2023 a trial proceeded before O’Brien DCJ, sitting without a jury. On 4 October 2023, the trial judge delivered judgment finding the applicant guilty on nine of the ten counts, including the primary count of arson. On 15 December 2023, the applicant was sentenced to an aggregate term of imprisonment for 5 years and 6 months commencing on 3 October 2023, with a non-parole period of 3 years and 6 months.

On 7 August 2024, the applicant’s solicitor filed a notice of appeal against his conviction on 5 counts, all of which turned on the correctness of the conviction on count 1 and whether the house was destroyed by bushfire. On 27 November 2024, the applicant, no longer represented, filed an amended notice of appeal including all convictions, except one for an attempt. Further, the applicant sought leave to tender further evidence on the appeal, including by reviewing a decision of Harrison CJ at CL denying his application to issue notices to produce.

The principal issues on appeal were whether:

the trial judge disregarded the applicant’s expert evidence as to the cause of the house fire;
the trial judge erred in convicting on counts 4, 5 and 9 involving financial claims not dependent on the cause of the loss;
to review the refusal to issue notices to produce documents;
to grant leave to the applicant to tender further evidence; and
the applicant’s trial counsel was incompetent.

The Court (Basten AJA, Dhanji and Sweeney JJ agreeing) granting leave to appeal but dismissing the appeal held:

As to issue (i)

1 Although there was no active bushfire in the vicinity of the applicant’s house on the night it burnt, the applicant’s fire expert hypothesised a possible ember attack. The trial judge found, based on the observations of witnesses who had been in the area that night, and the account given by the applicant on discovering the fire, which was found not be credible, that there was no ember attack: [37]. The trial judge’s adverse findings on the applicant’s credibility were supported by his inconsistent statements made in police interviews, in evidence and under cross-examination: [73]. Further, there was no challenge to the inferences drawn by the trial judge from his findings that the applicant had made false statements to police concerning his insurance status: [74].

2 The objective evidence, including the surrounding conditions that evening, pictures taken by the applicant himself demonstrating the progress of the fire and rejection of his evidence as to an “orange glow”, formed the evidential basis for the trial judge’s conclusion beyond a reasonable doubt that the fire had been started by the applicant: [77].

3 The finding that the house had been destroyed by a fire started by the applicant resulted, as the applicant accepted, in rejection of the appeal with respect to claims for financial assistance conditioned upon loss caused by the bushfire.

As to issue (ii)

4 The conviction with respect to count 4 was based on the finding that the applicant knew of his insurance status and that his statements to St Vincent de Paul Society were false. There was ample evidence to support those findings; the challenge to conviction on count 4 was without substance: [111]-[117].

Count 5 involved claims made to the NSW Rural Assistance Authority, based on being an eligible primary producer. Part of the claim was for tyres he did not purchase: [122]. Part was for burying dead animals, the applicant’s claim being contrary to any plausible expense. The trial judge’s satisfaction that no payments had been made by the applicant for the purposes claimed led to a conclusion that he had obtained a financial advantage by deception: [126].
Count 9 concerned two claims made to Services NSW as a small business affected by bushfire. The trial judge was entitled to find beyond reasonable doubt that the applicant had not lost all his tools in the fire: [131]. The claim that the applicant’s backhoe needed replacing due to fire damage was contrary to the objective evidence of continued use for months after the fire. It was ultimately replaced because it was old and needed maintenance: [138], [144]. The challenge to the trial judge’s findings with respect to the claim for a second energiser should be upheld, but that did not affect the amount of the false claim pleaded in the count, so that the challenge to the conviction on count 9 must be rejected: [134].

As to issue (iii)

The application to issue notices to produce must be refused as they were made out of time, constituted a fishing expedition, and were not related to issues raised on the appeal: [86]-[87].

As to issue (iv)

The application to tender further evidence on appeal related to a further expert report on the possibility that the house fire was caused by embers. It will be a rare case in which evidence that was available prior to trial, but was not obtained or relied upon, will provide a basis for a finding of miscarriage: [90]. The applicant’s contention that the new evidence was based on technologies or studies not available prior to the trial was not supportable: [99]. The new evidence simply furthered another mechanism for an ember attack, which had already been rejected as a reasonable possibility by the trial judge, and there was no basis on which to conclude that failure to admit the new evidence would give rise to a miscarriage of justice: [101].

As to issue (v)

The applicant claimed that his trial counsel was unprepared and had failed to lead evidence from him in chief. The evidence led was extensive and the applicant’s prior statements made the scope of his evidence a forensic challenge: [103]. The alleged failure to challenge directly the qualifications of the prosecution expert did not demonstrate incompetence: [106]. The alleged lack of preparation based on the failure to obtain information now sought by the applicant through notices to produce, did not show any failing on the part of the applicant’s solicitor or counsel at trial: [104].

JUDGMENT

BASTEN AJA: Between late November 2019 and early February 2020 the Currowan bushfire burnt a large area of the Illawarra and the adjoining Southern Highlands. The applicant, Darren Mark Colquhoun, owned a property at Barringella, near the junction of the Shoalhaven River and Calymea Creek.
On 5 January 2020, the applicant’s house was destroyed by fire. Following a police investigation, the applicant was charged with dishonestly destroying his house by fire with a view to making a financial gain. He was also charged with eight other offences involving specific amounts of money obtained following the destruction of the house and with dealing with the proceeds of crime, in an amount of $427,200.
The applicant pleaded not guilty to all charges and a trial proceeded before Judge O’Brien sitting without a jury in the District Court at Wollongong. The trial was conducted over a period of some ten days in June 2023, followed by written submissions from the parties and a further oral hearing on 14 September 2023. On 4 October 2023, the trial judge delivered a written judgment. The applicant was convicted on nine counts, acquitted of one, and the amount of the proceeds of crime was limited to $255,000. On 15 December 2023, the applicant was given an aggregate sentence of imprisonment for 5 years 6 months with a non-parole period of 3 years 6 months, commencing on 3 October 2023.
On 7 August 2024, the applicant’s then solicitor filed a notice of appeal against his convictions on counts 1, 2, 6, 7 and 10. On 27 November 2024, the applicant, by then unrepresented, filed a document entitled “grounds of appeal” in relation to each conviction, except that on count 3, being an attempt to dishonestly obtain a financial advantage by deception from a NSW government agency, Disaster Welfare Services. A final ground of appeal relating to the incompetence of his legal representatives at trial was apparently intended to cover all counts on which he was convicted (except count 3).

Four preliminary issues

In order to deal with the various grounds of appeal, it will be necessary to address the factual background as presented in evidence at the trial. However, before undertaking that task, four preliminary issues should be addressed.
First, the applicant accepted that most of the grounds did not raise “a question of law alone” and, as a consequence, he required leave to appeal: Criminal Appeal Act 1912 (NSW), s 5(1). In fact all the grounds required leave.
Secondly, the applicant sought bail pending determination of the appeal. As the bail application had not been heard separately and before the hearing of the appeal, it was dealt with at the end of the hearing. The applicant accepted that that was an appropriate approach, on the understanding that he would need to establish the strength of his case in order to warrant a grant of bail pending determination of the appeal. At the end of the hearing, the Court refused to grant bail and published ex tempore reasons for that determination.
Thirdly, the applicant sought leave to tender further evidence on the appeal. To that end, he read two affidavits indicating the nature of the evidence he sought to proffer. In addition, he had sought orders requiring the production of documents and the attendance of witnesses. That application had been refused by the Registrar and a review of that decision rejected by Harrison CJ at CL on 20 November 2024. It will be necessary to identify the nature of the evidence sought to be tendered, but for the most part it was not fresh evidence. Accordingly, it fell to be considered in relation to the next point.
Fourthly, as noted above, a final ground of appeal alleged incompetence of his solicitor and counsel in the preparation for and conduct of the trial. In part, that ground related to the failure to call evidence, but in other respects it raised claims relating to the general conduct of the trial.

Factual circumstances revealed at trial

The applicant’s property, known as Calymea, comprised a house, sheds and cattle on 40ha on the east side of Yalwal Road, running down to the Shoalhaven River. He allowed campers to use part of the property near the river.
The earliest evidence of the fire came by way of a call by the applicant on triple-0 at 5.21am on 5 January 2020. He said that he had been woken by the smoke detector in his home and found there was a fire in the roof. A photograph taken three and a half minutes later showed that the house fire was in an advanced stage. At 5.36am he called triple-0 again, while he was fighting the fire with a hose, when he said, “Woah, my whole house has fallen down”. While the last statement was an admitted exaggeration, the fact that the house was virtually destroyed within 15 minutes of the first call contradicted the applicant’s evidence, discussed below, that at the time of his first triple-0 call he expected to be able to control it with his hose, and that it was an orange glow under the eaves.
There had been an active bushfire within 400 metres of the applicant’s property on New Year’s Eve, fanned by a strong wind, carrying it towards the property. Bruce Magin, a worker employed by the applicant, described the circumstances when he went home on New Year’s Eve as there being fire in the vicinity, but not encroaching on the property. The winds abated that evening.
On 1 January 2020, the fire was burning to the south-west and north-west of the applicant’s property but the wind direction was from the south-east and the house was not threatened. On 2 January, the Rural Fire Service (RFS) undertook a hazard reduction burn on the opposite (west) side of Yalwal Road from the applicant’s property. The low-level fire burning the undergrowth continued throughout the day, at which stage the winds were northerly, and not threatening the applicant’s property. A small strip of bushland immediately across Yalwal Road from the applicant’s house was unaffected.
There had been fires burning on the escarpment to the west of the applicant’s property. By 3 January, those fires had diminished significantly. Through the afternoon of 3 January and until approximately 4.30pm on 4 January, the wind was steady from the north-east. On 4 January there was fire burning to the north-west of the applicant’s property and not moving in the direction of the property.
Philip Burke, who lived at 130 Burrier Road, approximately 1.3 kms to the north-west of the applicant’s house along Yalwal Road, gave evidence of patrolling the area on that afternoon and putting out spot fires. Later in the afternoon the wind swung from the north-east to the south and died down around 9.30pm. Mr Burke gave evidence that he stayed on the road until 2.30am on 5 January, when he considered there was “no further threat of ember attack”. The winds remained southerly and light until 6.30am on 5 January.
On the morning of the fire, apparently in response to the applicant’s first triple-0 call, the station officer at Shoalhaven Fire Station arrived at 5.43am and the fire brigade trucks arrived at 5.56am. Both the evidence of fire officers and videos and photographs taken by the applicant, demonstrated that there was no wind at the time, there was no visible fire on the escarpment to the west of the property and there were no active fires in the area. By 6.10am, the fire in the house had burned out and the house had all but collapsed.
Shortly before 10am, the applicant called the NRMA, seeking to make a claim on his farm insurance policy which covered his house. The following day, on 6 January 2020, the applicant was interviewed by police in relation to the circumstances of the fire. He was later charged with arson (count 1 on the indictment).
Earlier on 6 January 2020, Detective Senior Constable Kristen Sheaff, who conducted the interview, had recorded a video of the area surrounding the applicant’s property whilst driving from Mr Burke’s property at 130 Burrier Road, into Yalwal Road and had passed the applicant’s cattle yards and house. At 1.50pm on 7 January 2020, the NRMA called the applicant in relation to lodging a claim. In the course of the call, the applicant sought permission to push over the remains of the house with a backhoe. At 2.23pm the applicant’s farm-hand, Mr Magin, bulldozed the remains of the house.
Over the period from 5 January 2020 to 30 June 2020, the applicant made multiple requests to the Australian Red Cross for payments as a person whose place of residence had been destroyed by a bushfire. He told them he was not insured. By 7 February 2020 NRMA Insurance had paid the applicant $376,100. On 25 February 2020, the applicant told the Red Cross that he was not insured (count 2).
In February 2020, he made an application to the New South Wales Government Office of Emergency Management, Disaster Welfare Services, for relief funds as a person who had lost his place of residence and contents in a bushfire and was not insured. He made a number of inaccurate statements in the form. The application appears to have been unsuccessful and the charge relating to it (count 3) was limited to an attempt to dishonestly obtain a financial advantage.
Between 24 January and 12 February 2020, the applicant obtained a grant of $3,000 from St Vincent de Paul on the basis that his principal place of residence had been destroyed by a bushfire and was not insured (count 4).
On 10 February 2020, the applicant sought assistance from the New South Wales Rural Assistance Authority on a written form signed on 4 February 2020 claiming that he had lost eleven items as a result of the bushfire, with a value of $72,545.26. The indictment (count 5) identified the amount obtained as $75,000. The trial judge considered each of the eleven items and was satisfied in entering a verdict of guilty that an amount of $40,699.94 had been obtained as a result of fraud.
On 17 February 2020, the applicant sought assistance from the Salvation Army on the basis of a loss of his residence which had been destroyed by a bushfire. He indicated that the residence was uninsured, although he had already been paid by the NRMA. On 16 April 2020, the application was approved and he received $3,500 (count 6). Count 7 related to a further payment made by the Salvation Army in June 2020 in an amount of $8,000.
Count 8 related to a claim for the repair of fences damaged by bushfires. The applicant originally claimed for 9 kms of fencing, but the claim was settled in an amount of $15,000, equivalent to 3 kms of fencing. The supposed entitlement was unrelated to the house fire. Although the trial judge had doubts in relation to the truthfulness of statements made in support of the claim, he was not satisfied beyond reasonable doubt as to their falsity and acquitted the applicant in respect of count 8.
Count 9 related to a claim made for the provision of grants by Service NSW to small businesses who had suffered direct damage as a result of bushfires. The applicant provided a list of losses and expenses totalling well in excess of the maximum available grant, which was $50,000. With respect to some of the items, the trial judge was not satisfied of the applicant’s dishonesty but was satisfied beyond reasonable doubt in respect of items totalling $78,800. As the amount obtained was $50,000, the applicant was found guilty with respect to that amount.

Count 10 related to the proceeds of crime, the amount $427,200, being cash located by police in a safe in the applicant’s workshop when they searched the property on 19 March 2021. As noted above, the applicant was convicted, but with respect to a lesser amount.
In relation to the principal charge of arson, and consequentially in relation to some of the other counts, the essential question posed by the prosecution was whether, as the applicant contended, the fire was caused by an ember from the bushfires or was lit by the applicant. It is convenient to deal with that issue immediately, in considering the appeal against conviction on count 1.

Count 1 - arson

The prosecution case with respect to count 1 was circumstantial. The trial judge identified the principal issue in the following terms, to which no challenge was made:

“16   The principal issue in the trial is whether I can be satisfied beyond reasonable doubt that the accused set fire to his house as the Crown alleges, or whether it is reasonably possible the fire commenced by another mechanism. As to this, the accused suggests in broad terms, the cause of the fire was either:
a.   the collapse of a pyrocumulonimbus cloud on the evening before the fire and the subsequent long-distance dispersion of embers which settled inside the roof space, smouldered and then ignited; or
b.   general ember attack most likely emanating from the escarpment to the south of his house.”

As reflected in grounds 1-4 of the notice of appeal the thrust of the applicant’s challenge was that the trial judge “unreasonably disregarded or rejected … [a]ll the evidence of Defence fire expert (Timothy Cousins)”. Complaint was also made that the judge “disregarded or rejected” the evidence of Mr Magin, as to continued fire activity in the area, but that was of peripheral relevance because it was not suggested that the house was directly in the path of the fire, but rather that it was the subject of an ember attack.
The applicant sought to bolster his claim that there had been a miscarriage of justice by seeking leave to tender a report of an expert, Adjunct Professor Rick McRae, who was not called at the trial, and, indeed, who did not prepare a report until November 2024.
Although the applicant’s case was that the trial judge should have entertained a reasonable doubt as to his guilt, based on the possibility that the house fire was ignited by an ember from the bushfires, the issue was not resolved by consideration of the prosecution expert report, prepared by Detective Senior Sergeant Moon as to the origin of the fire, and rejection of the alternative hypothesis presented by the defence expert, Mr Cousins. Rather, the findings of the trial judge were focused on the primary facts, as recounted by lay witnesses, including fire officers, police and neighbours, and the conduct of the applicant himself. While it will be necessary to identify that evidence in more detail, it should be observed as a preliminary matter that the applicant’s claim that his expert evidence was “disregarded” was without substance. The trial judge summarised Mr Cousins’ evidence over some five pages of his judgment.^[1]
1. Judgment, at [161]-[166]; pp 65-70.
The trial judge considered the qualifications of both experts. He concluded:

“161 … Mr Cousins is no less qualified than Detective Senior Sgt Moon to offer an opinion about the cause of the fire which is the subject of this trial. I am satisfied both men have sufficient expertise to offer the opinions they have.”

While the applicant contended that Mr Cousins was better qualified, because his formal qualifications were more recent, the point for present purposes is that the judge gave consideration to both experts and did not discriminate on the basis of expertise.
The judge identified Mr Cousins’ primary thesis as based upon the collapse of a pyrocumulonimbus cloud, being described as a “fire induced and smoke infused [thunderstorm]”, of which 18 were documented in south-eastern Australia during the period of the Currowan fire.^[2] The judge continued:

“He says this last collapse of a pyrocumulonimbus cloud occurred at approximately 8.30 PM on 4 January 2020 over the accused’s house in such a way as to cause the long-distance dispersion of firebrands/embers which settled in the roof of the accused’s house, causing a smouldering/low intensity fire within the roof space which subsequently escalated, causing the bedroom ceiling to collapse at about 5.25 AM on 5 January 2020. He expresses the view that the roof of the accused’s house was an effective leaf litter and ember collection system enabling a southerly wind to channel embers into the roof space. He says the collapse of the cloud was confirmed by a Japanese satellite image.”
2. Judgment at [162].

The judge noted Mr Cousins’ second or alternative hypothesis, namely that “the house fire was the result of general ember attack on 4 January 2020, emanating from the ridge line of the escarpment to the south of the accused’s property and fuelled by strong winds”.^[3] Mr Cousins stated that he “could not exclude embers being transported from the ridge line on the escarpment to the accused’s house, entering the roof cavity and igniting”.^[4]
3. Judgment at [165].
4. Ibid.
While accepting that it was “absolutely plain from the evidence … that these events are extremely dangerous”,^[5] the judge rejected Mr Cousins’ hypothesis as to the collapse of a pyrocumulonimbus cloud. He noted that while satellite images “may well indicate such an event taking place over some part of the NSW south coast, the evidence does not show any impact with the accused’s property”.^[6] The judge continued:

“I note also that when pressed in cross examination as to whether the fire was caused by such a collapse [Mr Cousins] responded, ‘I’m not – I’m not tied to that’. I further note that no other witness in the trial, and particularly those present in the area of Calymea at the relevant time, including Phillip Burke, Glenn Griffiths and the accused himself, give evidence of having observed conditions consistent with such an event, especially the showering of embers. I have also borne in mind the evidence of both experts that neither of them is aware of any other reported case of a collapsing pyrocumulonimbus cloud causing a house fire. I am simply unable, on the evidence, to accept what Mr Cousins says about the collapsing pyrocumulonimbus cloud as being a reasonably possible explanation for the house fire.”
5. Judgment at [162].
6. Judgment at [167].

As noted above, the conclusions reached by the primary judge turned not so much on the evidence of the experts as on the observations of other witnesses. One of those was the applicant himself. Mr Cousins’ evidence that the fire commenced in the ceiling depended on the applicant’s account of “observing an orange glow in the roof cavity of the house on initial inspection, following being woken by his smoke alarm”.^[7] The judge did not accept the accused was a reliable witness; indeed he found that he was “an unreliable witness who was generally lacking in credibility”.^[8] The judge continued:

“I found the accused to be an unsatisfactory and evasive witness who was prepared to embellish, exaggerate, and/or understate his evidence, seemingly at will. While giving evidence he deflected and diverted blame to other people if he believed doing so would assist him …. He was at times vague and imprecise.”
7. Judgment at [168].
8. Judgment at [169(i)].

The grounds of appeal in relation to count 1 identified what was described as “failure to comply with the Libretto [sic] approach”.^[9] The reference was clearly intended to be to the reasoning of the High Court in Liberato v The Queen^[10] which was referred to by the trial judge in the following passage:

“65 It is not a case of comparing versions and determining which one I prefer. Before I can return a verdict of guilty in respect of any count on the indictment, I must be satisfied of the guilt of the accused beyond reasonable doubt. Even if I do not positively believe his version, I cannot find against him contrary to that version if it gives rise to a reasonable doubt: Liberato v The Queen (1985) 159 CLR 507.”
9. Ground 3.3, under the heading “mistakes as to law”.
10. (1985) 159 CLR 507; [1985] HCA 66.

In written submissions, the applicant contended:^[11]

“It is inaccurate to say that the opinions offered by Timothy Cousins as to the evidence and likelihood of the fire originating in the ceiling were solely dependent on acceptance of the Appellant’s version. If, consistent with [Liberato], his Honour had disregarded that account, then all of Cousins[’] expert evidence has to the various indicia and likelihood of the fire commencing as a ceiling, rather than room/compartment, fire remain grounded in his expertise and relevant to the ultimate determination as to whether there are plausible alternatives to the Arson hypothesis.”
11. Applicant’s written submissions, 27 November 2024, par 27.

The principle stated in the dissenting judgment of Brennan J in Liberato, and long since approved (though reformulated^[12]) was as follows:^[13]

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question… if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”
12. De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ) approving Wheeler JA in Johnson v Western Australia [2008] WASCA 164; 186 A Crim R 531 at [16], preferring the formulation by Cory J in DW v The Queen [1991] 1 SCR 742 at 757-758.
13. Liberato at 515.

Relevantly for present purposes, that was the thrust of the judge’s self-direction, as set out above. The issue in the present case was somewhat different. The applicant’s proposition appears to have been that even if the judge rejected evidence that there had been an orange glow in the roof at an early stage of the fire, that did not mean that Mr Cousins’ evidence was to be rejected in whole: it still supported a reasonable possibility of an ember starting the fire.
There are two limbs to the Liberato principle, namely that even if a judge rejects material evidence presented by the defence as to a particular issue, it is still necessary to be satisfied beyond reasonable doubt of the prosecution case as to that issue. Further, it is not merely a matter of “preferring” the evidence of the prosecution over that of the defence: the question is more nuanced, namely did the defence evidence give rise to a reasonable possibility consistent with innocence. That was the way the trial judge expressed and applied the principle. The trial judge did not doubt the expert evidence that the collapse of a pyrocumulonimbus cloud could give rise to extreme danger, nor that, even without such a collapse, flying embers could cause a fire to ignite at some distance from their source. The issue was clearly stated by the trial judge in a passage which contradicts the applicant’s contention:

“170 It follows from my rejection of the accused’s version of how the fire started that I reject beyond reasonable doubt his assertion of having observed an orange/reddish glow in the roof cavity of the house. In this event not only must I put to one side what the accused said concerning the fires commencement, I must also put to one side what Mr Cousins says. This is because of his reliance on the asserted observations of the accused to ground either of his hypotheses as to causation. If I am in error in rejecting the evidence of Mr Cousins because of his reliance on the accused’s account, then, in any event, I would not have regarded either of his explanations for the fire, when considered with the totality of all the other evidence, as rising above mere conjecture or providing more than a bare possibility of innocence.”

The complaint of the trial judge’s failure to direct himself in accordance with the Liberato principle is without substance.
Before turning to the proposed tender on appeal of the evidence of Mr McRae, it is convenient to summarise the affirmative findings of the trial judge, who did not have Mr McRae’s evidence, but did have that of Mr Cousins. These findings may be dealt with chronologically.

Events on the morning of 5 January 2020

It is convenient to commence directly with the sole affirmative evidence of an ember attack, namely the “orange glow” that the applicant stated he saw immediately after the smoke detector awoke him.
In his record of interview on the following afternoon, he described waking to the alarm of the smoke detector, noticing black smoke hanging from the ceiling, racing outside and going to the side of the house where there was a fascia board missing. His description continued:

“I can see in there, that I can see at the time a glow, an orange glow, and I knew that there was something in there. And, um, so when I came back and saw that I immediately raced down and grabbed the, the fire fighting truck, and brought it up, and was turn, started the pump, ready to extinguish it. Unfortunately for me, the pump had been emptied …. I then had a quick think about what else I could use. I immediately raced to my phone, and I called Triple 0, and I let ‘em know that I needed some help urgently, and I was going to attempt to put, put out what I could see was a, it was, it was probably only a glow, a, a reddish glow, it wasn’t very big at that stage …. I couldn’t actually see the naked flame, I could only see the red glow of the flame, like a, a bit more like a candle in the darkness, um, but obviously red in colour, not white. I, I then quickly went back down with the truck with the water, and put the hose in the, in it.”

During the first triple-0 call at 5.21am the applicant said that he had been woken by a smoke detector alarm, saw “black smoke hanging from the ceiling”, and when he got up and went out of the house found there was a “fire in the roof”. He said he was about to fill his water truck, “and I may be able to get it out, I’m going to give it a good crack in a minute”. His details were taken and the operator agreed to pass the information on to RFS.
At 5.25am, that is two minutes after completing the first triple-0 call, the applicant took a photograph on his phone which showed the south-eastern side of the house well alight with flames emanating from the windows in the applicant’s bedroom and near the front door. There was also an area of burnt ground and flame in front of the house. The flames were rising over the eaves and the surrounding outer edge of the roof with peaks at least a metre above the roof line. Sergeant Moon’s report stated:^[14]

“The structural integrity of the eaves on the south-eastern side of the house are [sic] intact, with a small area towards the eastern corner displaying surface burning. The bottom section of the timber is still visible and does not show fire decay …. The fire at this point of progression would be classified as stage 4 of fire development being in the Post Flashover phase.”
14. Report, 29 October 2021, par 32.

Three terms were used in Sergeant Moon’s report to identify the phase of a fire, namely, “incipient stage” (initial stage of fire development, small flame, overall temperature in room not affected); “flashover” (transition from free burning fire to fully developed; all sources of fuel in the room reach auto ignition temperature and ignite) and “post flashover” (fire continues to burn with maximum energy; ventilation is now the key to sustaining the fire).
At 5.34am the applicant took a video of the south-western corner of the house, whilst he appeared to be directing a hose towards the flames, showing flames flaring from an open window. Sergeant Moon described the fire at that time in the following terms:

“42 … The fire had fully involved the centre bedroom and loungeroom. The internal window between the two rooms had been breached. Ceiling material in the front bedroom had fallen. Some walling within the entry hallway had collapsed. Fire had breached the fascia board below the line of the roof and some external eave lining has collapsed onto the ground below. The fire also has progressed into the main roof cavity of the house and active flame is visible through the breached roof.”

The judge described the video as depicting “a very intense fire”.^[15]
15. Judgment at [106].
Two minutes later, 14 minutes after the first was completed, the applicant made a second triple-0 call. The applicant stated that the fire had “just taken off, I’m trying to fight it, I’m hittin [it] with the hose and it’s just it’s getting worse. I’m losing my house …. Woah, my whole house has fallen down.”
The description of a “reddish glow” at the time he made the first triple-0 call was not accepted by the trial judge and was self-evidently not true. In his first police interview, the applicant described attempting unsuccessfully to fill the tank on his truck with water, said that he got a container of water and threw it on the fire, grabbed a fire extinguisher and attempted to use that but did not get close enough, saying that if he had been able to get a ladder he would have been able to put enough on the fire to put it out, at which stage he went back to check the water flow into the tank which was “slow”, came back to see that “the glow was bigger” and he could “actually see the flame coming out at the top of the tile”, which was when he rang triple-0 a second time saying he needed a fire truck, quickly. The police interview account continued:

“I went inside, I knew I had some water in the fridge. I grabbed the water out of the fridge and attempted to use that. That didn’t do any good, there was only 2 litres. Um, at that stage I, I was fairly frantic. And, um, and it was getting’ bigger, and it was getting’ quick, bigger fast, really fast. At that stage I thought, it’s time to grab whatever I can get out of the place, so I grabbed some garbage bags out of the cupboard, and I quickly threw in what I could throw. I started at the bedroom where the, where the fire was. It was pretty well over, overhead at that stage, and definitely was making noise, and, and it was pretty hairy, the smoke was thick.”

The account he had given as to his activities the previous day (4 February) referred continually to “we” putting out spot fires and checking the boundaries; when asked who “we” included, he said it was himself and his dog, Dingo. During his lengthy account of his activities after discovering his house was on fire there had been no mention of Dingo. The interviewing officer asked him where Dingo was when he got up and came out of the house and the applicant replied:

“In his kennel probably. I don’t know. Um, where was Dingo?”^[16]
16. ERISP, Q566.

After some prevarication, he then said:

“A   So I don’t recall him beforehand, but he was definitely, I don’t, to be quite honest I don’t recall him much of the night.
Q570   And, and ---
A   But I ---
Q571   And what sort of dog is he, like, will he get up and bark if there’s a noise?
A   Mmm.
Q572   Or ---
A   Yeah.
Q573   Ok.
A   Yeah, yeah, but he wasn’t, he wouldn’t bark if I’m there.
…
A   So he definitely wasn’t barking or running around. But I don’t recall him a lot.

Q580   Mmm.
A   Um, one of the things I did do was drag his kennel away from the wall. That was one of the, that took me a, you know, a couple of minutes to go and grab that.
Q581   Yeah.
A   Um, I didn’t want him goin’ back into his kennel, so I pulled it over near peach tree.
Q582   Right.
A   Mmm. But I don’t, don’t recall him vividly where he was or what he was doin’. But, um, nor do I recall him when the fire brigade was there, you know. He definitely ---
Q583   Mmm.
A   He knew there was somethin’    goin’ on, he was upset. You could tell.”

The applicant’s account of collecting garbage bags and filling them with his possessions in his bedroom after he had been out of the house was not consistent with the photos taken from outside the house a matter of minutes after he had made the first triple-0 call. His inability to recall the whereabouts of his dog, followed by an account of moving his kennel and deciding the dog was “upset”, appeared to fit the judge’s description of him in the witness box dissembling and constructing his evidence as he went.
The trial judge held that the statements made by the applicant in relation to insurance were inconsistent with his actions in relation to insurance. The judge noted that the applicant had held an insurance policy with NRMA since January 2005, covering both the business conducted at the property and his house.^[17] The judge observed that the policy was -

“… renewed annually on 22 February and the sum for which the house was insured increased over time. As a matter of everyday experience this means that each year between 2005 and 2019 the accused paid a premium or caused such a premium to be paid in respect of this policy, to NRMA.”
17. Judgment at [88].

The judge noted that, following a conversation with his daughter who had experience in the insurance industry, on 23 December 2019 he increased the coverage by $60,000 to include a shed on the property and solar panels on the house. The judge stated:^[18]

“This extension of the accused’s insurance policy occurred 13 days prior to the house fire and was not something his daughter was aware of. The extension of this policy demonstrates, in my view, that the issue of insurance generally, was operative in the mind of the accused in the period immediately before the fire at his house. The accused’s knowledge of his insurance status is a matter of importance in the trial to which I will return. As of 5 January 2020, the accused’s house was in fact insured for $341,000 although the sum he received in due course from his insurer was not limited to this amount.”
18. Judgment at [89].

On 30 December 2019, Sergeant Teneille Keith, together with Senior Constable West, had visited the applicant’s property and spoken to him. Her purpose was to check that there were no campers remaining on the property and she said “he sort of expressed his anger that he was losing money because he had to tell the campers to leave”.^[19]
19. Tcpt, 15/06/23, p 223(10).
Sergeant Keith also gave evidence that the applicant had said to her that “he hoped it would burn down”.^[20] In cross-examination she expressed it slightly differently: “he wouldn’t mind if his house burnt down”.^[21] She agreed that she could not remember the exact words, and did not have a record of the conversation. However, the trial judge accepted that the applicant spoke words to that effect.
20. Tcpt, p 223(22).
21. Tcpt, p 226(13).
Returning to the question of insurance, the applicant contacted the NRMA at 8.30am on 4 January 2020, noting that he had his building insured but had no contents insurance. He said that he was unable to get back to his house because the police had put in a roadblock. He referred to the fires as “finished” and that “I think they’re exterminated”. When told there might be an embargo on new policies he ended the call.
The judge observed that “the accused made no enquiry during this call as to the amount for which his house was insured, nor did he express any concern that his property might be under insured or partially insured as common sense would indicate he likely would, given the terms of the December conversation with his daughter. I am satisfied he made no such enquiry because he was aware at the time of the amount for which his house was insured”.^[22] The judge continued:

“103 On 4 January 2020 the accused made and narrated several videos which police later downloaded from his phone. These videos were recorded at 2pm, 2:04pm, 2:05pm and 8:19pm. In them, amongst other things, he predicted upcoming ember showers and described hostile fire conditions in close proximity to Calymea, the extent of which are not in my view borne out by the vision recorded.”
22. Judgment at [102].

Further, as the judge had earlier noted, the evidence of Mr Burke who lived about 1.3 kms north-west of the applicant’s house was also inconsistent with there being hostile fire conditions in close proximity to Calymea on that night. He had said that, although the wind had died at about 9 or 9.30pm, he had remained on the side of the road until about 2.30am, before returning home for some rest. He had noticed lights on at Calymea at about 2.30am. The judge’s summary of his evidence continued:^[23]

“He again checked the situation at about 4am and saw the small leaf litter fire he had earlier observed had burnt about 40m while he slept. In re-examination he marked on an aerial map with a red semicircular line, the area of this fire, which I note to be some distance from Calymea. He also marked the direction in which the fire was moving, being away from Calymea …. Mr Burke said that when got up at 4am on 5 January there was no wind.”
23. Judgment at [93].

At about 9.30 or 10pm, Glenn Griffiths, an RFS volunteer, drove along Yalwal Road past Calymea. He gave evidence that there was “very little fire activity in the area south of Yalwal Road”. He did not notice any fires in the immediate vicinity of the house, although he did observe a small spot fire about 100 to 200m from the road that did not require his attention. He said the wind had died down by this time and there were no embers in the area.
It was an agreed fact that by 8.30am on the morning of January 5 the house fire was extinguished. It was also agreed that at 9.55am the applicant called the NRMA to make a claim in relation to his insurance policy, and that further contact was made with the NRMA on 7, 13, 22, 23, 24 and 31 January 2020. On 4 February 2020 the applicant was paid $34,100 for temporary accommodation and, on 6 February, $341,000 for the total loss of the property (being the sum insured). The following day he was paid $1,000 for fence repairs.
The senior officer of New South Wales Fire and Rescue, Ian Walters, gave evidence that a triple-0 call at approximately 5.27am on 5 January resulted in him being on route to the applicant’s property about two minutes later and arriving at approximately 5.43am. He stated that the house was fully alight. He instructed his men not to go inside the building but to extinguish the fire from the outside. Mr Walters gave evidence of four conversations with the applicant and in at least one of those he said that he “didn’t have building insurance and he may have contents insurance”.^[24]
24. Tcpt, 14/06/23, p 104(45).
At 7.45am on 5 January the applicant had a conversation with Detective Senior Constable Sheaff. Shortly before Detective Sheaff had arrived, the applicant spoke with Senior Constable McDonald who asked him whether he had insurance and reported that, “he said he wasn’t insured”.^[25]
25. Tcpt, 14/06/23, p 120(49).
Having spoken to Senior Constable McDonald, Detective Sheaff then had a conversation with the applicant which she recounted as follows:^[26]

“A.    I recall that he told – gave me a version about what had happened with the house fire, that he had been woken by a smoke alarm that he tried to ignore at first, and then he got up and he observed some black smoke coming down from the ceiling. He then got out of bed and went outside and that’s when he saw an orange glow in the roof of the – his house, and then he has contacted triple-0 or emergency services and then he’s gone down to get his firefighting truck, but he had realised then that he hadn’t refuelled it. He then tried to put water into the truck but it didn’t have any water pressure, and then he has gone back into the house and started to remove some property.
Q.   Did you ask him about his insurance status?
…
A.   Okay, so I said, ‘So you don’t have any insurance?’ The accused said, ‘No, I don’t think so.’ I said, ‘What do you mean?’ The accused said, ‘Well, I don’t have any contents insurance. I rang up a couple of weeks ago and tried to get it, but they said I couldn’t because there was a fire embargo.’ I said, ‘Do you have the house itself insured?’ The accused said, ‘I don’t know, I have farm insurance, but I’m not sure if that covers the house.’ I said, ‘But you rang up a couple of weeks ago to try and get contents insurance. Wouldn’t you have clarified then if the house was covered?’ The accused said, ‘No I didn’t think of it.’”
26. Tcpt, 13/06/23, p 88(45).

There seems to have been no challenge to these conversations in cross-examination.
The statements made to the police immediately following the fire were inconsistent with his conduct a few hours later when he rang the NRMA to make a claim. Unsurprisingly, the judge reached an adverse conclusion in relation to his evidence to the police:

“129 He told police he knew he did not have contents insurance, but he was not sure if he had house insurance. This was untruthful. The accused was well aware he did and had acknowledged this in his conversation with the NRMA on 4 January 2020.”

After dealing with the expert evidence, the judge came back to consider whether the prosecution had proved its circumstantial case in respect of count 1. He was satisfied that it had, and that there was “no reasonable hypothesis consistent with the accused’s innocence”.^[27] The judge continued:

“In doing so I reject the submission of Mr Hughes [for the accused] that it would be illogical for the accused to have burnt down his under-insured property. I do so because given all the evidence and my assessment of the accused as a witness, I am satisfied that as of 5 January 2020 he was in fact well aware of his actual insurance status. To the extent he says he was not I do not accept of evidence.”
27. Judgment at [173].

There followed twelve findings which supported that conclusion. They included the following:^[28]

“viii I am satisfied the accused sought to increase his insurance cover to include contents less than 24 hours before the fire. That call demonstrates an awareness in him of his insurance status in the day immediately before the fire and points towards premeditation and planning.
…
xii I am satisfied the accused was untruthful in his conversations with Ian Walters, Senior Constable McDonald and Detective Senior Constable Sheaff when he spoke with them on 5 January 2020 concerning his insurance position, and that these lies also demonstrate a consciousness of guilt.”
28. Judgment at [174].

The applicant did not seek to challenge the judge’s findings as to his credibility. A reading of the two police interviews, together with his evidence and lengthy cross-examination, readily support the findings in that respect, without the benefit of observing the applicant in the witness box.
Further, the applicant did not challenge the inferences drawn from findings that he had lied to police (and others) concerning his insurance status. Nor was there any challenge to the judge’s self-directions with respect to such matters as drawing an inference of consciousness of guilt from a lie. The circumstances of the false statements readily support the inference drawn by the trial judge.

Evidence of Bruce Magin and the ember hypothesis

The applicant complained in written submissions that the trial judge disregarded or rejected the evidence of Mr Magin, a general farmhand who had been employed by the applicant at the time of the fire. Critically for present purposes, the judge summarised the relevant evidence as follows:^[29]

“He gave evidence of having driven along the top of the plateau to the south of the accused[’s] property around the escarpment, approximately one week after 4 January 2020. He saw trees continuing to smoulder following being burnt by bushfire. He gave evidence of embers being dispersed over extended areas. The effect of his evidence was that there was some continuing fire activity in the area to the immediate south of the accused’s property many days after the house fire.”
29. Judgment at [114].

The applicant submitted that the trial judge had “determined that he must disregard all the evidence that pointed to the escarpment fires as being the source of ember ignition”.^[30] However, the evidence was not disregarded, nor was there some arbitrary determination that it should not be relied upon. Rather, the trial judge’s approach involved two steps. He dealt first with the applicant’s primary contention, based on Mr Cousins’ evidence of the collapse of a pyrocumulonimbus cloud. As has been noted, he observed that “the evidence does not show any impact with the accused’s property”.^[31] He further observed that “no other witness in the trial, and particularly those present in the area of Calymea at the relevant time, including Mr Burke, Mr Griffiths and the accused himself, give evidence of having observed conditions consistent with such an event, and especially the showering of embers”. He therefore rejected Mr Cousins’ hypothesis as a reasonably possible explanation of the house fire.^[32] The judge continued:

“168 Even if I am in error as to this conclusion, the fact of such an event occurring does not mean an ember or embers found their way into the accused’s roof cavity. What Mr Cousins relies upon to conclude as he does, that the fire commenced in the ceiling, is the accused’s account of observing an orange glow in the roof cavity of the house on initial inspection, following being woken by his smoke alarm. Indeed this is fundamental to the opinion Mr Cousins offers, and was conceded by him, at least in part, towards the tail end of his cross examination. If the alternative hypothesis of the accused is to be accepted, being the fire was caused by general ember attack from the escarpment immediately to the south of his property, then it also relies on what the accused says was an observed orange glow in the roof cavity. Further, this is the only way in which the evidence given by Bruce Magin as to his observations of stags burning on the plateau approximately one week after the fire can have any importance. On either basis the roof fire hypothesis is advanced, it is foundational that an orange glow was present in the roof cavity and observed by the accused. Further, it is only if I accept what the accused says were his observations of the orange glow in the roof cavity, that the alleged failure of police to properly forensically examine that area of his house will have any relevance. In noting these matters, I am of course mindful and again direct myself, that it is not for the accused to prove anything, but rather for the Crown to disprove what he asserts beyond reasonable doubt.”
30. Written submissions, par 91.
31. Judgment at [167].
32. Ibid.

The applicant criticised the logic of the judge’s reasoning, describing it as “somewhat elaborate”. However, the logic was not flawed. There were two competing hypotheses as to the cause of the fire, namely a burning ember lodging in the roof cavity or deliberate ignition, probably in the applicant’s bedroom. The only evidence directly supporting the ember in the roof cavity hypothesis was the applicant’s descriptions of what he saw when he went outside his house having been woken by the smoke detector alarm. Rejection of that evidence did not mean that there was no ember in the roof, but other objective evidence, especially as to the surrounding conditions that evening, the pictures taken by the applicant himself demonstrating the progress of the fire and rejection of his evidence as to the “orange glow” formed an evidential basis for the trial judge’s conclusion, namely satisfaction beyond reasonable doubt that the fire had been ignited by the applicant.
The judge did not disregard the fact that there were a small number of spot fires in the area, primarily to the north-west of the applicant’s property, indicating ember activity, nor that the escarpment to the south and west of the applicant’s property had been burnt and there might be smouldering timber for some time after fire had passed through that area.
Apart from the evidence of witnesses on the ground, Sergeant Moon had provided a set of “line-scan images” including one at 3.52pm on the afternoon of 4 January 2020 and one at 6.09am on 5 January 2020. He described the line-scan imagery as produced by “aircraft using infrared imaging equipment that take a series of images that are stitched together and enabling areas of fire – so hotspots – to be marked on the map”.^[33] The images had the relevant wind direction super imposed on them. These demonstrated the absence of fire activity directly impacting the applicant’s property since 31 December 2019, having regard to the wind direction during that five-day period.
33. Tcpt, 19/06/223, p 246(15).

Conditions at the time of the fire

Whilst acknowledging the possibility of embers carried on the wind creating spot fires and that showers of embers could follow from the collapse of a pyrocumulonimbus cloud, the judge was satisfied on the basis of other evidence that no such event was the cause of the fire in the applicant’s house.
The judge placed significant weight on the evidence of Mr Burke which has been described above. Mr Burke spoke of observing “a couple of spot fires” which he extinguished on the afternoon of 4 January 2020 when there was a strong wind from the south-east. There was no suggestion that any of these spot fires threatened the applicant’s property. Mr Burke was not only present and describing the actual conditions on the ground during the day (and days) prior to 5 January 2020, but, as the judge noted, he was a member of the RFS for 50 years and was “mindful to look for smoke and for trees still alight”.^[34] He was described as a “most impressive witness”.^[35]
34. Judgment at [95].
35. Judgment at [96].
The evidence of Mr Griffiths, also an RFS volunteer of some years standing, has been noted above. He too drove along Yalwal Road at about 9.30 or 10pm on the evening of 4 January. He did not observe any fires in the immediate vicinity of the house, “although he did observe a small spot fire about 100 to 200m from the road that did not require his attention”.^[36] It may well have been the same leaf litter fire observed by Mr Burke.
36. Judgment at [97].
Detective Sheaff, who attended the applicant’s property at 7.45am on 5 January 2020 gave evidence that she did not see any injuries on the applicant, that “his breathing wasn’t laboured at all and he wasn’t coughing”.^[37] (This was relevant to his claim of having re-entered the house after making the triple-0 call.) She gave evidence that she did not see any fires around the property, that the bush directly across the road from the house had been burnt at ground level and was blackened but was not on fire, that there were areas of burnt grass in front of the house and on the south-eastern and north-western sides of the house, leading from the house.
37. Tcpt, 13/06/23, p 89(27).
The following day, 6 January 2020, at 11.54am, Detective Sheaff and Detective Herft drove along Yalwal Road past the applicant’s property up to Mr Burke’s house on Burrier Road and back, recording the bush on both sides of the road. The video evidence supported the descriptions given by Mr Burke and Mr Griffiths as to the absence of significant fire activity in the area at the relevant time.

Motion to rely on further evidence – orders sought

There were two forms of additional evidence sought to be relied on by the applicant. The first concerned the proposed issue of notices to produce documents and for the attendance of witnesses. Of five notices sought, three were relevant to particular claims he had made for expenses and will be addressed below. The fourth was a notice sought to be addressed to the Commissioner of Police, seeking a copy of any notebook, statements or entries made by Sergeant Keith in the period from 28 December 2019 to 10 January 2020 and a copy of any documents or records detailing any lost police notebooks of Sergeant Keith.
As noted above, Sergeant Keith gave evidence of a conversation she had had with the applicant when she attended the property on 30 December 2019 to speak to him about campers not remaining on the property. There was no dispute that she had not been able to locate a notebook recording the conversation of which she gave evidence. She was cross-examined as to searches she had made, unsuccessfully. Apart from the fact that the application is far too late, it is in the nature of a fishing expedition. The application to review the decision of the Chief Judge to refuse to issue the notices must be refused.
Secondly, in the same category, there was an application to issue a notice to Telstra, seeking documents to challenge Detective Sheaff’s evidence that he did not have a second mobile phone available to him in January 2020. The applicant did not submit that the second telephone had any substantive significance in the case, except that it affected his credit. That was not so: the trial judge did not identify the issue as relevant to any matter in the case, nor as relevant to the applicant’s credit. The application to review the decision of the Chief Judge not to give leave to issue the notice to Telstra must be rejected.

Motion to rely on further evidence – expert evidence

The substantive issue was whether to admit a further expert report obtained from Mr McRae. On 4 September 2024, the applicant affirmed an affidavit to which he annexed a report prepared by Mr McRae dated 9 July 2024, together with two hyperlinked documents referred to in the report.
The bases upon which this Court will intervene in an appeal against conviction under s 5(1) of the Criminal Appeal Act relevantly include where it is satisfied that “there was a miscarriage of justice”: s 6(1), third limb. The circumstances in which a miscarriage can arise are manifold and, as noted by Gleeson CJ in R v Birks,^[38] “[i]t is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”
38. (1990) 19 NSWLR 677 at 685 E-F.
It will be a rare case in which evidence that was available to an accused prior to the trial, but was not obtained or not relied upon, will provide a basis for a finding of miscarriage. (As will be noted shortly, Mr McRae’s report arguably fell within that category.) The unlikelihood that failure to obtain such evidence will give rise to a miscarriage is accentuated where the accused is represented by experienced legal representatives. No doubt appreciating that problem, the applicant, in an affidavit dated 5 September 2024, claimed that he had instructed his solicitor to get another fire expert report, continuing:

“I tried to instruct him nicely by way of email and later by phone, only to be abused by him, stood over and ignored …. My case failed largely due to this instruction being ignored and a thorough Expert report not furnished.”

The applicant further alleged that Mr McRae’s report contained “fresh evidence not available at trial due to the advancement of technologies and studies”.
The applicant was requested to waive privilege, so that the Director could obtain instructions from his former lawyers as to the truth or otherwise of his allegations against them. He declined to waive privilege. However, annexed to his affidavit was an exchange of emails with his solicitor between 28 July 2022 and 10 August 2022 and a further text exchange in April 2023. Both exchanges are incomplete, but the email exchange includes his solicitor asking, apparently in relation to Sergeant Moon’s report in reply:

“Do I get our expert to review this?”

The applicant responded:

“I would think so and if need to get a second expert as well.
I have not read it but I can imagine there [sic] expert will write what ever he is paid to do. I will read tonight.”

On 10 August 2022, the applicant sent an email to his solicitor headed, “The things I think need doing”, including:

“3 I think you should engage a second fire expert.
I do not think there is anything wrong with yours but two opinions/experts with degrees and experience maybe better than one to combat a police officer with little training or degrees/experience.
I will leave this up to you. I have paid account. Thank you.”

On 1 September 2022, the solicitor appears to have sent material to the applicant who responded:

“I believe you have done well with this expert.
Do you think you need another opinion from a second expert to put this beyond doubt?”

On 19 April 2023, a text from his solicitor asked:

“Do I order the report from Chris Courtis for 8,500?”

The applicant replied:

“I have left it up to you. If you want it get it. I can’t be clearer.
Just don’t loose [sic] the case from not having appropriate experts reports.”

These email and text exchanges with his solicitor are inconsistent with the claims that his legal representatives ignored or rejected his instructions.
Although the applicant referred to Mr McRae’s report as “fresh evidence” it differed from the report of Mr Cousins by providing a “narrative” said to be “based on the concepts of Vorticity-driven Lateral Spread [VLS] and of ember storms”. That was said to differ from opinions about the likely “ember attack” provided by Sergeant Moon and Mr Cousins, namely “a hot fire run nearby, or the collapse of the plume of a fire thunderstorm”.^[39]
39. Annexure “A” to affidavit of Rick McRae dated 21 November 2024, p 6.
The footnoted references in part 4 of the report identified (i) numerous papers published between 2005 and 2017, (ii) a text published in 2022 and (iii) one paper by Mr McRae himself published in 2023, in a footnote which included earlier papers published in 2013 and 2014. There is no basis in this material for the proposition that Mr McRae’s opinions were based on technologies or studies which were not available prior to the trial.
Mr McRae’s thesis was that a southerly wind flow could cause an eddy circulating embers from the previous hazard reduction burn along the escarpment to the south-west of the house, moving the embers laterally. Mr McRae stated:^[40]

“Evidence does not allow determination of whether the VLS generator of concern produced ember attack or an ember storm, however theory indicates unambiguously that an ember storm is expected in the conditions present on the evening of 4^th January.”
40. Report, p 21.

In short, this was simply a further mechanism for creating an ember attack. The trial judge did not reject either of the two mechanisms which had been identified by Mr Cousins as theoretically available. Rather, he was satisfied that the house had not been subject to an ember attack of a kind which raised as a reasonable possibility that it had been the cause of the fire. Accordingly, there is no basis for concluding that the failure to obtain in a timely manner a report from Mr McRae gave rise to a miscarriage of justice.

Challenge to competence of counsel

There was a further, more general, attack on the competence of counsel which included failing to allow the applicant “to give evidence in chief”, attending court “unprepared” and failing to object to “new evidence”, being the evidence from Detective Sheaff in reply in relation to the second telephone number. The last point, referring to the evidence in reply, is a matter of no substance and has been addressed above.
With respect to examination in chief, two observations are relevant. The first is that the applicant was in fact examined by his counsel: the transcript of his evidence extends for more than 30 pages. Secondly, the prosecution case contained numerous inconsistent statements by him and included three lengthy interviews with police. The transcript of the first, conducted on 6 January 2020 covered 95 pages; a second on 19 March 2021 ran to 59 pages and a third on 28 May 2021 ran to 102 pages. Those circumstances would have created forensic difficulties for counsel as to what to cover in an examination in chief. There was no complaint that the applicant was in fact called to give evidence. His complaints as to the limited nature of the evidence sought from him were without substance.
The suggestion that counsel was unprepared in the sense that a miscarriage of justice resulted, was not established on the material before this Court. The evidence for lack of preparation was apparently the failure to obtain the information now sought by notices to produce, matters which are separately dealt with and do not demonstrate any material failing on the part of the applicant’s legal representatives at trial.
One matter, which relates directly to count 1, was the assertion that Sergeant Moon was not an expert on wildfires. That complaint was based on the proposition that Sergeant Moon had not completed a course in wildfires for thirteen years and the Court was not told of the length or depth of the course he had undertaken.
This complaint misapprehended the nature of expert evidence and the necessary qualifications. Expertise can be acquired through practice and experience as much as through formal qualifications. The trial judge was satisfied as to Sergeant Moon’s qualifications to provide the report which he did and there is no challenge to that finding. The applicant’s counsel cross-examined Sergeant Moon at some length, seeking to undermine the scope of the enquiries he undertook and the soundness of his various opinions. It is apparent that counsel relied on matters derived, in all probability, from Mr Cousins’ reports. That was a sound forensic approach. The judge determining facts in place of a jury is likely to assess expert evidence by noting points of disagreement between the experts, exploring the bases upon which opinions are expressed and considering the soundness of the reasoning process revealed in each expert’s report. A separate attack on formal qualifications will not necessarily assist in achieving the substantive results sought by the applicant. There was no basis for thinking that counsel’s approach to Sergeant Moon’s evidence demonstrated any form of miscarriage of justice.

Count 1 - conclusions

This Court should be satisfied as to the following matters:

the attack on the competency of counsel should be rejected;

the application to admit further evidence relevant to count 1 should be rejected;

the evidence admitted at trial revealed a sound factual basis for the judge’s conclusion that count 1 had been established beyond reasonable doubt.

While the applicant should have leave to appeal on the ground that the conviction was unreasonable or cannot be supported having regard to the evidence, the appeal on that ground must be dismissed. I am satisfied beyond reasonable doubt that the conviction on count 1 was not unreasonable and was supported by the evidence. For reasons explained below, that satisfaction extends to the remaining convictions. Further grounds, relating to alleged mistakes as to law (ground 3) and miscarriage of justice (ground 4) must also be rejected.

Counts 2, 6, 7 and 10

A finding that the house was destroyed by the applicant’s own conduct in igniting the fire is sufficient to dispose of the appeal relating to those counts which were dependent on the applicant’s property having been destroyed by bushfire. So much was acknowledged in the applicant’s written submissions stating:^[41]

“This appeal is directed to the findings in relation to count 1. Guilt in relation to counts 2, 6, 7 and 10 are solely dependent on a finding of guilt in relation to count 1. Accordingly, determination of count 1 is decisive of counts 2, 6, 7 and 10.”
41. Applicant’s written submissions, par 13.

Accordingly, rejection of the appeal with respect to count 1 results in rejection of the appeal in relation to counts 2, 6, 7 and 10. As noted above, there was no challenge to the conviction on count 3 and the applicant was acquitted on count 8. Accordingly, the remaining challenges relate to counts 4, 5 and 9.

Count 4 – St Vincent de Paul Society assistance

On 24 January 2020, the applicant signed a “bushfire assistance application form” available from St Vincent de Paul Society. He indicated that his house had been destroyed and that he was “not insured”. A declaration on page 2 confirmed that the details provided were true and correct. The application covered two grants, of which the first, funded by the Commonwealth, was not the subject of a charge because the amount of $1,000 was available to anyone who lived or worked in an identified bushfire area. As to the second grant, par 10 of the agreed statement of facts signed by the applicant and his solicitor on 9 June 2023 stated:

“The second grant required that the applicant’s principal place of residence was destroyed or damaged as a result of the bushfires, the property was not insured, or was under insured. Applicant’s had to complete a declaration and sign the application form.”

In his notice of appeal, the applicant stated that it was “conceded that the box ticked ‘uninsured’ was ticked by the St Vincent de Paul employee”. That was not correct. There was no box to be ticked: there was an item headed “insurance situation” and in handwriting the words “not insured” had been written against the item. The applicant submitted that as neither of the two employees of St Vincent de Paul were called, his evidence that he had said “I had no farm insurance, no contents insurance, and less than half building insurance” had to be accepted. That was not so. First, there was no challenge to his signature declaring that the statements in the form were true and correct. Secondly, the trial judge did not have to accept his evidence, and did not. He gave reasons for that conclusion, namely:^[42]

“I am satisfied beyond reasonable doubt the accused was aware of the fact of his insurance in conversations with NRMA on 4 January 2020 and had made a claim in respect of the subject policy on 5 January 2020. In his interview with police on 19 March 2021 he asserted that when he completed the application with St Vincent De Paul on 24 January 2020, he was unaware as to the whether he was insured. For the reasons I have earlier indicated I do not accept this. In cross examination, the accused suggested he had told the person who assisted him in the completion of the form that he was ‘under insured’ rather than uninsured. I do not accept this evidence. The accused was well aware he was insured. It defies common sense that a person unknown to the accused, who was simply assisting him in making an application for a charitable grant, would deliberately and incorrectly record what he had been told in respect of the accused’s insurance status.”
42. Judgment at [193].

The ground of appeal noted that counsel had sought to tender at the trial a copy of an email from an employee of St Vincent de Paul stating:

“I have your application from 20.1.20. It does say that you are not insured, but that wouldn’t have affected the emergency relief you got from us.”

Contrary to the applicant’s submissions, the email was tendered, but rejected on the basis that it appeared to refer to a different application, not being that of 24 January, but 20 January. That matter was not unimportant, as the applicant had applied for two grants, the first of which was not subject to the criteria applying to the application for the second grant, which was the subject of the charge.
The same email was attached and marked as annexure “K” to the applicant’s affidavit of 4 September 2024 read on this appeal. There was no reason to conclude, however, that the rejection of the evidence was erroneous. In any event, the challenge to the conviction on count 4 suffers the same fate as the challenges to the other convictions which involved as a criterion of eligibility the destruction of the applicant’s residence by a bushfire.
In his written submissions (though not in the ground of appeal) the applicant submitted that it was “not open to the trial judge to guess the eligibility criteria”. That was true, but did not happen. The criteria were, as noted above, an agreed fact. The criteria were clearly (i) destruction by a bushfire, and (ii) uninsured or underinsured. The insurance status clearly referred to the loss of the residence; there was no suggestion otherwise.
The challenge to the conviction on count 4 was without substance. Given that the applicant is unrepresented, there should be a grant of leave to appeal (though for that reason only) but the appeal dismissed.

Count 5 – NSW Rural Assistance Authority

The grounds of appeal relating to count 5 identified error with respect to two of the six items accepted by the trial judge in respect of this count, of the 11 items claimed by him in an application in his handwriting and signed by him.^[43]
43. Judgment at [201].
Eligibility for a grant from the NSW Rural Assistance Authority was unrelated to the loss of his home and was available to him as an eligible primary producer impacted by the bushfires. The grounds of appeal challenged two components of the claim, namely a claim for future replacement of fire damaged tyres and a claim for the cost of burying dead animals. Attached to the claim had been a quotation or invoice from Premium Tyre Service Pty Ltd of South Nowra dated 7 February 2020 in relation to new tyres for a backhoe and truck in an amount of $7,656.
Trevor Skingle, the proprietor of Premium Tyre Service, gave evidence to the effect that the document was merely a quote, and that the tyres had not been purchased. Indeed, he said he had never stocked those tyres, nor had he ordered them. He was asked if he recalled an occasion in mid-2022 when the applicant had come into his business in relation to another matter and had said, “Oh, don’t forget about the cash I paid you for them tyres”. To which he had asked, “What tyres?” and the applicant had said, “You know, the - the tyres – the truck tyres and loader tyres”. Mr Skingle said he replied, “You never bought them off us, you never ordered them”. In cross-examination it was suggested to Mr Skingle that he had in fact sold tyres to the applicant on the date shown on the invoice, and had been paid cash. He disagreed.^[44]
44. Tcpt, 14/6/23, pp 138(33)-(47), 139(40)-140(18), 143(43)-144(5).
The trial judge accepted the evidence of Mr Skingle and rejected the contrary statement by the applicant in his record of interview on 28 May 2021 and his evidence at the trial. The judge accepted Mr Skingle’s evidence “without hesitation”, noting his reservations with respect to the evidence of the applicant.^[45] He added:

“His attempt to suggest to Mr Skingle in mid-2022, well after he was aware of the police investigation, that he had paid cash for the tyres when he had not, is particularly telling. It demonstrates a degree of ongoing dishonesty, along with a level of planning and an effort to distance himself from what he well knew was his criminal conduct.”
45. Judgment at [234].

The applicant’s submissions oscillated between a claim that it did not matter whether the tyres were purchased or not, to a contention that the paperwork had been lost in subsequent disasters. Neither proposition was raised in the course of the trial and neither is tenable.
Finally, the applicant sought to rely upon an affidavit of a Mr Trevor Avnell dated 9 June 2023 annexing photographs Mr Avnell had taken on 7 June 2023 (more than three years after the date of the invoice), purportedly showing that the tyres on the truck and the backhoe had been replaced. Mr Avnell’s evidence that on a visual inspection he saw four “new” truck tyres and two backhoe front tyres described as “new, in good condition” and two rear tyres in “good condition” failed to demonstrate that the applicant in fact purchased tyres from Mr Skingle in accordance with the quotation relied upon in the application to the Rural Assistance Authority. The evidence was not accepted at trial and there is no challenge to that ruling. It should not be accepted on the appeal, if only because it could not affect the outcome.

The second item in count 5 challenged in the notice of appeal was the claim for burying dead animals. The applicant submitted that it was not open to the trial judge to reject the claim because Mr Magin “gave evidence of burying dead animals, supported by an invoice from Bruce Magin, all without question”. Those submissions were factually incorrect. The claim for $1,690 for the costs associated with burying dead animals was identified by reference to an invoice from Mr Magin referred to in the applicant’s claim. The invoice itself was not in evidence; Mr Magin, the judge said, did not give evidence of receiving this amount nor was a receipt tendered during his cross-examination confirming that he had done so. The judge stated:^[46]

“I am satisfied having observed Mr Magin carefully as he gave his evidence, that if he had received this sum of money from the accused for burying dead animals, then he certainly would have told me about it.”
46. Judgment at [254].

The judge continued:

“255 Mr Magin did however give some evidence touching upon this claim. He said he buried eight or nine sheep or cattle killed in the bushfires. He said the dead animals were picked up ‘with a backhoe bucket and carried down, and the hole dug and thrown in and buried’. It was not suggested by him that this was lengthy or difficult task.
256 To be considered in the context of this claim is the evidence of Mr Magin that he was paid $150 cash per day for the work he undertook for the accused. On this basis, and if the accused’s claim is to be accepted, Mr Magin must have undertaken more than 11 days’ work in performing this task. His evidence was certainly not to that effect, and I am satisfied beyond reasonable doubt that Mr Magin was not paid the sum of $1,690 to bury dead animals.”

There was nothing unreasonable or improbable in the judge’s reasoning in respect of this matter. It relied in part on an absence of any evidence to support a possibility that the claim was honestly made. The judge’s satisfaction that no payment had been made to Mr Magin by the applicant in that amount for that purpose, led to the conclusion that the applicant had obtained a financial advantage by deception and that his conduct was dishonest according to the standards of ordinary people.^[47]
47. Judgment at [256].
Even had these two elements of the appeal been made good, the result would not have been an overturning of the conviction on count 5, but merely a reduction of the amount involved according to the particulars. However, there is no basis to overturn the two findings which were challenged. Accordingly, purely on the basis that the applicant was unrepresented, there should be a grant of leave, but the appeal with respect to the conviction for count 5 must be dismissed.

Count 9 – assistance from Service NSW

The applicant made two claims to Service NSW for a bushfire recovery grant as a small business affected by the bushfires. The first grant of $10,000 was not the subject of a charge. The second grant in an amount of $50,000 was the subject of count 9. As the judge noted at [281]:

“The eligibility criteria for this grant required that applicants had suffered direct damage as a result of the bushfires. The eligibility criteria included that the grant was not available if applicants had received funding from another government source or program or donation, and that funding had met the costs being claimed in the application.”

The original application itemised six categories of expense totalling $100,000. Further documentation was sought and, on 22 September 2020, the applicant sent further information and photographs. The amount of the claim exceeded $50,000, but the claim was paid in an amount of $50,000. The trial judge considered the various items and was satisfied beyond reasonable doubt that the total quantum of the applicant’s dishonesty was $78,800, but capped the extent of his liability in respect of count 9 at the amount obtained, namely $50,000.
Of the four items identified in relation to count 9 as the subject of challenge, item 3 (office equipment) turned on the cause of the house fire. As the trial judge accepted the applicant’s guilt on count 1, a finding not overturned in this Court, the challenge to item 3 falls away. With respect to item 4 (tools of trade) the applicant stated that he had two workshops one in the farm shed for farming equipment and a second “at the garages for the appliance business”. The judge dealt with this item in the following passage:

“286 In his interview with police on 19 March 2021 the accused asserted he had lost all his tools as a result of the fire because they were in the garage of his house at the time the fire occurred. I note that in his initial claim on 20 September 2020 the accused estimated the loss in respect of his tools to be $12,000. Two days later he estimated the loss to be in the sum of $14,800. It is not clear upon what basis the estimate increased by $2800 in a period of 48 hours. Photographs taken by Senior Constable Hulme when she attended at the house on 5 January 2020, within 75 minutes of the fire being extinguished, include some taken of the garage where the accused asserts variously that $12,000 or $14,800 worth of tools were destroyed or damaged. Those photographs numbered 3, 4, 16, and 17 in annexure 10 to Exhibit 6, do not depict a quantity of tools, or any tools at all for that matter, which are either damaged or destroyed. I have also had regard to the evidence of Ian Walters who said that on attending the house on 5 January 2020 the garage was absent flames. So far as the claim regarding tools is concerned, I am satisfied beyond reasonable doubt that the accused was not entitled to make the claim he did because firstly, his house had not been destroyed by bushfire and secondly because the evidence does not support his contention that the subject tools were ever present in the garage as he alleged. Accordingly, I am satisfied that the accused by deception obtained a financial advantage and that he did so dishonestly according to the standards of ordinary people.”

In written submissions, the applicant merely restated that equipment had been destroyed in the fire, that photos submitted to the Court showed damage to the garage but that there were no photos of the “western side of the garage where the test workshop meters and tools were kept”. He further stated that these tools were replaced, but it is not clear that there was any evidence at trial of the replacement tools. The respondent denied that the photographs were so limited, but noted that in any event the damage was not done by a bushfire and hence the challenge failed on the same basis as the challenge to count 1. That reasoning should be accepted.
Item 1 related to the purchase of an energiser for the electric fence, which was found to be deceptive by the judge on the basis that the cost of the energiser ($4,300) had already been claimed and paid by the Rural Assistance Authority. The applicant contended that the claim was for “[t]he future purchase of the second fence energiser”.
The Director noted in response that in the course of an interview with police on 19 March 2021 the applicant had been asked about this claim to Service NSW for an energiser, having claimed the cost from the Rural Assistance Authority. Detective Sheaff asked:

“Q465   What about how you’ve listed a new fence energiser?
A   Yeah, right. So, I’ve listed a new fence energiser.
Q466   I’m just saying that, haven’t you already received the funding for that, and purchased one, according to this?
A   We did purchase one, but as I said to you, we normally use two. At the moment, we’ve only got one running the whole property, but we haven’t got all our fencing up. Eventually, we’re going to have to replace that, and we haven’t done it yet.
…
Q470   But you said before that you had three there, and that you had to replace one, you repaired the other … and you’ve got the third.
A   Well, the third one’s not working, and that’s what we’ve got to replace. At the moment, I said to you, we have one fence energiser doing the whole farm because we haven’t got all our fences up to scratch.”

It is not clear from the submissions how this matter was put to the trial judge, but it is clear that his reasons did not address the possibility of there being more than one energiser and only one having been replaced. Without addressing that material, the trial judge should not have been satisfied beyond reasonable doubt that the claim was fraudulent. However, that conclusion has limited significance as the amount of the fraudulent claim accepted by the trial judge was $78,000, so that a reduction of $4,300 would leave the fraudulent claims well in excess of the $50,000 cap on liability.
Item 2 was the claim for $48,000 for a replacement backhoe to replace a fire damaged backhoe. On 10 February 2020, the applicant had submitted an application to the Rural Assistance Authority for repairs to the backhoe with an invoice dated 5 February 2020 in support.
The trial judge dealt with this item briefly stating:

“289 In respect of the sum of $48,000 claimed for the cost of the replacement backhoe, I simply note that the accused’s backhoe had not been replaced following the receipt by him of the funds to do so. I am satisfied that in claiming this amount the accused by deception obtained a financial advantage and did so dishonestly, according to the standards of ordinary people.”

The important part of this passage was the temporal element, namely that the backhoe “had not been replaced following receipt” of the funds. As the Director noted in written submissions on the appeal, the eligibility criteria for the grant, which were in evidence, stated under the heading “auditing requirements”:^[48]

“You may be audited in the future, so you will need to keep all documentary evidence related to your application, and assistance provided under the scheme, for a minimum of one year. As part of the audit, you will be required to provide evidence that you have used grant funds in accordance with the claims made in your application.”
48. Exh 7, pp 3-4.

That language was consistent with the intention of the grants being to fund assistance which was required immediately for the destruction or damage to equipment caused by the bushfires. The evidence revealed that the backhoe had not been replaced when he was interviewed by police in March 2021 and was in fact replaced only in June 2022. The applicant caused his home to be bulldozed on 7 January 2020, using the old backhoe. It was also used to bury the dead animals, as explained by Mr Magin.
Although the judge’s reasons in respect of count 9 were relatively succinct, in comparison to the manner in which other counts were dealt with, that appears to have been a direct consequence of the submissions made by the parties. Counsel for the applicant submitted in relation to count 9 that the eligibility criterion was suffering “direct damage” to premises or equipment as a result of the bushfire event. He agreed that “if the accused is convicted of count 1, a conviction on count 9 would follow”. Nothing was specifically said in relation to the replacement backhoe. Rather, the trial judge was directed to the applicant’s evidence in cross-examination at pages 830-836 of the trial transcript.
Those pages revealed that the applicant claimed that the old backhoe was “leaking oils” because the “seals in it were heat affected”.^[49] Even if that evidence of the applicant had been accepted, there were objective circumstances which supported the prosecution case. Those included the use of the backhoe to bulldoze the house on 7 January, the use of the backhoe to bury the dead animals, the use of the backhoe for three days digging ditches for the installation of irrigation lines, the fact that funds had been obtained and repairs made to the old backhoe, including the replacement of a solenoid cylinder on the 4-wheel drive.
49. Tcpt, p 832(43)-833(13).
The backhoe had been operating when the police came to the property on 19 March 2021. The applicant claimed:^[50]
50. ERISP 19 March 2021, p 49, Q459.

“A   Well, you saw it breakdown. It broke down while youse were there today.
Q460   It ran out of fuel is what Bruce said.
A   Well, it, well, it didn’t. It had a quarter of a tank in it …. I mean, we put fuel in it, but that didn’t get it going. I had to go and get Aerostart to get it going. It’s still not much chop after it’s been through the fires. There’s still hoses busting on it left, right and centre. I mean, it needs replacing, so I put in to replace the back hoe.
…
Q462   So, was that backhoe damaged in the fires?
A   Mmm.
Q463   What damage was that backhoe … occasioned in the fire?
A   Just fire damaged underneath, just the heat, just pushing, pushing in the fires.
Q464   What, from working on the land after the fires?
A   No, no. Pushing in the fires as they were happening, as they were first coming down in the paddock up at, the paddock up the creek, this one here, which you’ve got all trees in there, that’s where we were in there with the backhoe, pushing all the, all the, all the thing.”

In answer to questions from the trial judge, the applicant gave the following evidence:^[51]

“Q   How long had you had it?
A   Backhoe? We probably had it about six years, I think. The engine got rebuilt and the hydraulics got rebuilt in those six years; and the tires would have been replaced.
Q   So, did you buy it second-hand, or did–
A   I did, your Honour.
Q   Second-hand?
A   Second-hand, yes.”
51. Tcpt, p 833(15).

Apart from the extravagant language used in places, the applicant provided little reason to accept that even when the police had arrived the machine had broken down. The fact that he had to get Aerostart to “get it going” presumably meant that it operated with glow plugs which had gone cold.
The trial judge was entitled to conclude beyond reasonable doubt that the backhoe was not in need of replacing as a result of direct damage from bushfire exposure, but that it was old, needed maintenance and the replacement of some parts as a result of its exposure to the bushfires, but was otherwise able to keep working for more than a year, and was used during that period for its usual functions. The challenge to that aspect of the judge’s findings with respect to count 9 should be rejected. It follows that the conviction on count 9 must stand.

Conclusions

Subject to one minor matter in relation to the claims the subject of count 9, which should have been rejected, the appeal must be dismissed. The one part the challenge to which has been accepted had no consequence for the conviction on count 9 and requires no adjustment to the orders. It did not even affect the quantum of the dishonesty which was the subject of count 9, because of the amount of the grant.
The Court should make the following orders:

Grant the applicant leave to appeal from his convictions on counts 1, 2, 4, 5, 6, 7, 9 and 10.

Dismiss the applicant’s notice of motion seeking to challenge the refusal by the Chief Judge at Common Law to order persons to produce documents or attend for the purposes of the appeal.

Dismiss the applicant’s motion seeking leave to rely upon further evidence on the appeal.

Dismiss the appeal.

DHANJI J: I agree with Basten AJA. With respect to the unreasonable verdict ground, I have no doubt as to the guilt of the applicant.
SWEENEY J: I agree with Basten AJA. On my own review of the evidence I am satisfied that the convictions were not unreasonable and were supported by the evidence beyond reasonable doubt.

**********

Endnotes

Amendments

19 February 2025 - Update paragraph numbers in headnote.

20 February 2025 - 20/2/25 - typographical amendment at [1].

Decision last updated: 20 February 2025

Medium Neutral Citation:	Colquhoun v R [2025] NSWCCA 12
Hearing dates:	6 December 2024
Date of orders:	19 February 2025
Decision date:	19 February 2025
Before:	Basten AJA at [1]; Dhanji J at [147]; Sweeney J at [148]
Decision:	(1) Grant the applicant leave to appeal from his convictions on counts 1, 2, 4, 5, 6, 7, 9 and 10. (2) Dismiss the applicant’s notice of motion seeking to challenge the refusal by the Chief Judge at Common Law to order persons to produce documents or attend for the purposes of the appeal. (3) Dismiss the applicant’s motion seeking leave to rely upon further evidence on the appeal. (4) Dismiss the appeal.
Catchwords:	CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited:	De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 DW v The Queen [1991] 1 SCR 742 Johnson v Western Australia [2008] WASCA 164; 186 A Crim R 531 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 R v Birks (1990) 19 NSWLR 677
Category:	Principal judgment
Parties:	Darren Mark Colquhoun (Applicant) (unrepresented) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: S Lind (Respondent) Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2021/153768
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 December 2023 Before: Judge O’Brien File Number(s): 2021/153768