Coughlan v The Queen

[2020] HCATrans 8

[2020] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B60 of 2019

B e t w e e n -

EAMONN CHARLES COUGHLAN

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 2020, AT 10.01 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned juniors, MR M.N.B. THOMAS and MR D.M. WELLS, for the appellant.  (instructed by Craven Lawyers)

MR C.W. HEATON, QC:   May it please the Court, I appear with MR M.J. HYNES for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Keim.

MR KEIM:   Your Honours, although it may not be obvious from our outline of oral submissions, we will address three different aspects of the appellant’s case in this matter.  In the first section, we will look at three aspects of the matter which we say, in the absence of a strong case – for example, on matters like motive ‑ it is really essential that there is a strong forensic connection between the action for which the appellant has been convicted and the appellant.

Those three areas are the cause of the fire, the allegation that the appellant had petrol on his clothes and what we say is the failure to exclude or even attempt to exclude any innocent explanation for those alleged petrol residues which were found by Ms Maxwell in her examination of the matters.

KIEFEL CJ:   Mr Keim, does your time estimate remain as it did in the written submissions at three hours or have you reduced that a little?

MR KEIM:   Your Honour, I thought I had estimated one and a half hours.  I have certainly reduced it significantly. 

KIEFEL CJ:   Yes, thank you.

MR KEIM:   I am not just saying that to make the Court feel happier at this stage, your Honour.

KIEFEL CJ:   There is nothing wrong with feeling happy at this stage.

MR KEIM:   The second section, your Honour, looks in much less detail – in terms of taking the Court to passages in evidence – at a broad number of matters which we say are either neutral in circumstances where, for a strong circumstantial case, the Crown would usually require them to be favourable to the Crown or matters which are, in fact, favourable for the appellant.  In the third section of our submissions, we wanted to take the Court to some authorities and discuss what we understand to be our learned friend’s proposition, which is that poorly proved or unproved factual matters can nonetheless support one another and obviate that lack of proof.  So, they are the three sections that we will address.

BELL J:   Just taking the last of those ‑ ‑ ‑

MR KEIM:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ are you suggesting that the respondent’s submissions go beyond what might be thought to be uncontroversial, which is in a circumstantial case you do not examine individual circumstances in isolation but rather look to the combination of circumstances for satisfaction of proof beyond reasonable doubt?

MR KEIM:   To answer your Honour’s question, the matter probably has to be considered in the context of the facts of this case.  The authorities make general propositions with regard to circumstantial cases but, obviously, every circumstantial case differs.  For example, there is what I think Justice Brennan called in Edwards “a concatenation of probabilities”, and I think Justice McHugh referred to that in Chamberlain’s Case.

What we say is the issue here – the answer to your Honour’s question is yes, and we say that there are three separate aspects which need to be considered.  The first is that a fact, taken on its own, may give rise to a weak inference of guilt but a number of facts can combine, each of which gives a weak inference of guilt to give a strong inference of guilt.  If we take Chamberlain’s Case as an example, in that case you have ‑ ‑ ‑

BELL J:   Well, Mr Keim, I do not want to take your submissions out of order.  I just wanted to be clear.

MR KEIM:   Yes.

BELL J:   You are suggesting that the respondent in supporting the analysis of the court below is proceeding upon some misapplication of principle.

MR KEIM:   Yes, your Honour.  Perhaps I can still answer your Honour’s question, just more briefly than I might have otherwise done.  There is a passage which I will take the Court to later from Chamberlain’s Case, which I think is picked up in Shepherd’s Case, which says that certain pieces of evidence, each one of which does not prove a fact, can come together to establish a fact, but the passage refers to corroboration and it refers to supporting one another.

So the example that I would take is perhaps where you have a weak piece of identification evidence of somebody going into a house.  That could be supported by, and corroborated by the person who that was thought to be having fingerprints and DNA all over the crime scene.  So that is a case where you have one fact, one piece of evidence, the identification weak in itself, but it can be confidently relied upon in the wake of the DNA and the fingerprint evidence, or you could have a whole series of identifications on a particular day, some stronger than others but if they all point in the same direction, that can prove a fact. 

What we say our learned friends are doing here is they are taking three, what we say are independent matters, or two independent matters probably it comes down to.  One is the cause of the fire, and what the experts say with regard to the cause of the fire - there are a whole lot of things we cannot rule out, but petrol in a gaseous form could be one of the causes - and then they say, because the appellant might have had petrol, or might have been in contact with petrol recently, that affirms the other.

We say they are two independent factual situations.  They can never corroborate each other, support each other.  If both of them are separately caused, if you prove that petrol was the source of the fire, the ignition source of the fire, and you prove that the person was recently in contact with large amounts of petrol, then those two independent facts can go together to make a strong inference of guilt.  We say they confuse those two principles and they are trying to use facts to corroborate one another which are not of the nature which are capable of corroborating one another.  That is the point we make, your Honour. 

Just to be complete, there is the potential of the lay evidence with regard to having smelt petrol, to perhaps narrow down the causes.  I mean as a matter of principle that is not incapable, but what you normally find where lay evidence and expert evidence is taken together, the expert is briefed with the lay evidence, the expert takes that into account and then interprets it as part of the opinion. 

BELL J:   Mr Keim, your essential point is that no expert examined the remains of the destroyed dwelling and expressed an opinion as to the nature of the accelerant or gaseous vapour that caused the explosion. 

MR KEIM:   Yes, your Honour.  Mr Dyke and Mr Patruno do not help that situation from the Crown’s point of view.  The fundamental issue in the appeal is whether the jury verdicts were unsafe and should have been set aside.  That issue can be considered at the same time as the question as whether the Court of Appeal applied accepted authority correctly.  We have not sought to say - we have in our written submissions and certainly on the application of special leave pointed out specific areas where the Court of Appeal made errors of principle, but we do not propose to take the Court to them here because it is really the evidence which we say is central to the argument. 

It is accepted that the task of the Court of Appeal was, having considered all of the evidence, to determine whether they had a reasonable doubt – not allowed by making allowance for the juries having seen and heard the evidence.  Perhaps the signal passage with regard to this is the passage from M v The Queen which is at tab 8 in the joint book of authorities.  I do feel that this may be trespassing in the area of teaching your Honours how to suck eggs.  But the passage is at page 494 of the report.

KIEFEL CJ:   I think you could take it that we are reasonably familiar with M v The Queen.

MR KEIM:   Yes, your Honour.  I will just say that that is the passage that talks about discrepancies and inadequacies.  I will not take any more time on that, your Honour.  What we wanted to do as part of that first section which I have already outlined is to take the Court to passages of the evidence.  We say that in a very real sense this is the strongest part of the Crown case, but we say it is also clear that it falls short. 

So, in the oral outline the passages are at paragraph 2(a).  The first of these is in volume 2 of the book of further materials, which has been conveniently prepared for us by our learned friends.  It is at page 674 in the numbering that appears at the top of the page – 647 at the bottom, 674 at the top.  It is the passage, your Honour, that starts at the bottom of page 674, with the words:

in this specific instance, I couldn’t actually get inside the house.

It goes over to the end of that paragraph at the top of page 675.  So, essentially, that says that the experts did not go inside.  The next passage is on the following page, page 676, starting at line 36:

Okay.  So in your experience from attending house fires –

That is where Ms Gormon gives her evidence as to causation as far as she can.  The passage starts there and goes over to the following page, 677, and finishes in that paragraph.  That is the evidence with regard to the fuel being in gaseous form.  The very next passage is where Ms Gormon cannot rule out an electrical fire.  That is at the same page, 677, and really starts in the next paragraph and goes down to about line 18:

It depends on what fuel is in there.

BELL J:   Was there any evidence as to whether there had been a gas bottle, or bottles, in the house?

MR KEIM:   Yes.  Mr Spencer gives some evidence about a barbecue.  His evidence is – looking at that barbecue, I do not think the barbecue exploded because it is not sufficiently damaged.

BELL J:    Was the barbecue inside the house?

MR KEIM:   I am not sure, your Honour.

BELL J:    I think the evidence was that the seat of the fire was inside the house.

MR KEIM:   Yes, it was.

BELL J:   I am just wondering if there was any evidence as to whether there was a gas bottle or bottles inside the house.

MR KEIM:   No, your Honour, that was not addressed.

BELL J:   Was there any evidence about whether natural gas was connected to the house, or not?

MR KEIM:   That was not addressed either by the experts.  Going back to the barbecue, wherever it was, obviously a gas bottle attached to a barbecue can be a source of a leak, if it were in the house, but that would not mean that the explosion started where there – the house would fill up with gas and then a small electrical spark somewhere could do it.  I just wanted to say that the evidence of Mr Spencer with regard to the barbecue, no matter where it was situated, does not rule out a gas explosion, as opposed to a petrol vapour explosion.

Your Honours, at page 677 – that is at the bottom of the page we were just looking at – at line 43, the start of that paragraph “Were you able” and going over to the end of that paragraph on 678, that is where Ms Gormon said that she was not able to rule out a spontaneous fire.  Mr Spencer was a little bit stronger in his evidence in saying that, in his opinion, the fire had been deliberately lit by a human being, but Ms Gormon did not go to that extent.  In fact, her evidence there is different.

The discussion of the Molotov cocktail is probably not that definitive one way or another.  That is on page 678, starting at line 9 and going down to line 38 towards the end of the page.  That passage includes a discussion of a Molotov cocktail and of a bomb and of a gas bottle or barbecue.

EDELMAN J:   The suggestion that a Molotov cocktail might have been thrown in was ultimately recanted at trial.

MR KEIM:   By the appellant, your Honour?

EDELMAN J:   By the child who gave that evidence.

MR KEIM:   Yes, your Honour.  That was one of the children who also smelt petrol, I think, your Honour.  I do not think that the questions were ever asked on the basis of that statement necessarily.  What the cross‑examination – it is evidence‑in‑chief here – seems to be canvassing all possible causes and trying to get the experts’ opinions as to whether it is ruled in or ruled out.

Ms Gormon was able to give a little bit of evidence with regard to a bomb and said she could not make a call – that is at line 29.  Then in a discussion of a gas bottle or barbecue by Ms Gormon, she says if it were inside the house it could have been a source of the explosion or of the gas, the substance that led to the fire.  There is a short passage at ‑ ‑ ‑

BELL J:   Ms Gormon considered that firstly, the barbecue and the associated gas bottle might have been significant had it been inside the house and, secondly, she expressed the opinion that had it been the source of the vapour and had it exploded she would have expected to see some remains.

MR KEIM:   Yes, yes.  So that tends to rule it out, to some extent.

BELL J:   Yes.

MR KEIM:   Yes.  But other sources of gas were not canvassed.  The next passage I wanted to take your Honours to, I have actually given the bottom of the page reference - the top of the page reference is 683.  This is a short extract from Ms Gormon’s report on page 683, starting at line 6, down to line 14.  So that is a fairly strong statement of her negative opinions.

The next passage I wanted to take your Honours to was on the next page, page 685.  Your Honours might well think that this is extraordinary, notwithstanding how hot the remains might have been or how much asbestos dust there was around, but Ms Gorman confirms that she did not take any samples at all – that is at lines 35 to 39 on page 684.

Mr Spencer’s evidence is the next evidence, he was the next witness called, so it follows in the transcript from there.  I wanted to take your Honours to page 688, and that is the passage from line 1 to about line 14, in which he says he was not able to determine what the ignition source was.

EDELMAN J:   What page was that?

MR KEIM:   Page 688 on the top, your Honour.  On the same page at lines 25 to 38, that is Mr [Spencer]’s evidence with regard to human involvement, and he explains what he means by “incendiary”.  So his evidence seems to differ from Ms Gormon’s in that regard, or more particularly, Ms Gormon’s evidence differs from his.  He discusses questions with regard to electrical fire, natural causes, Molotov cocktail and a bomb on page 704.

KIEFEL CJ:   Both experts tend to the view that it was a vapour explosion.  Is that about as high as it gets?

MR KEIM:   That is correct, your Honour, yes.  Sorry, that passage - I have given your Honours the wrong number there.  With regard to those series of matters they are on page 696, and that whole passage down to the end of his evidence‑in‑chief at about line 25 he discusses a number of matters.  His report is cited too on that page 705 – sorry, at page 704, towards the bottom third of the page, starting at line 30.  His report also was stated in a general way, not very revealing.

Then, an important part of the evidence, in terms of Mr Coughlan’s presence at the scene and the extent to which the Crown seeks to rely upon that, remote detonation was considered by Mr Spencer and not ruled out, on page 705 at lines 10 to 20.  I think I have taken you Honours to the best of the evidence with regard to the causes of the fire in the Crown case. 

Ms Maxwell’s evidence concerning petrol residues, in our submission, was equivocal.  Her evidence appears in the same volume, and the first passage I wanted to take your Honours to was at page 429.  Now, she made a distinction in her findings between the shoes and the tracksuit pants on the one hand, and the other clothing on the other, in the sense that she said with regard to the first two she found the 12 indicators that she was looking for. 

But, without trying to put in evidence from another case, we have referred your Honours to Omid (No 2) which is a decision of the Court of Appeal in Queensland, which is at tab 15.  There was much more extensive expert evidence there and there was expert evidence from both sides.  Without trying to incorporate that evidence, we say identifying petrol is obviously a very complex science so it is not surprising that Ms Maxwell, only having looked at 12 factors, was so equivocal - she talked in terms of probabilities.  At one stage the Crown was able to get her to say “likely”.  But at no time did she firmly conclude within any reasonable time period or any fixed time period ‑ ‑ ‑

BELL J:   I think she varied somewhat in the language used to express probability, but in reply returned to a view that it was likely improbable. 

MR KEIM:   Yes, your Honour, that is fair.  We say that that falls short and that none of the other evidence in the case can strengthen those findings.  The court and the jury could not safely find that there was relevant contact - there was any fresh contact between Mr Coughlan and petrol, and particularly since there was no attempt at all to exclude innocent contact, then that is a part of the Crown case, which analogous to Omid - although I am not drawing on statements of principle, analogous to Omid ‑ ‑ ‑ 

BELL J:   Ms Maxwell’s evidence started off, did it not, with an assertion that it was not possible to date the – or to give an estimate of time with respect to the petrol residue that she believed she had found on the track pants and the shoes?  But she did go on then to refer to some study that had been done ‑ ‑ ‑

MR KEIM:   Some unpublished paper by a master’s student who I think she said did get his master’s, but it was almost anecdotal in the sense that she did not form an opinion herself with regard to it, she said she simply could not form an opinion.  She really just gave that as an anecdote to say that somebody on some occasion in some circumstances did attest and found that after four hours that person could not detect anything.

Now, that is not related back to the facts of this case.  It is not related back to the fabric of this case.  It is not related back to the time period between when the explosion occurred and when Mr Coughlan turned up at the police station and his clothes were taken and bagged.  It is does not deal - she was unable to deal, in any event, with the idea that something might have happened when the garments were not securely bagged at the police station.  But your Honour is right, she did refer to an anecdote, but our submission is that does not take the matter any further.

It does not really deal – the facts of that do not deal with somebody who has been a home handyman for the last nine months and wearing clothes that may have had petrol on them but may have also had a lot of other solvents and evaporative material.  So the grime on a handyman’s clothes, who knows what kind of substances that is going to produce or how that is going to retain various substances that are part of the contents of petrol.

If I can take your Honours to the passages at page 429, line 29 to the following page, line 5, that is where it is expressed in terms of probability and where she indicates that the full profile of 12 – which we say, looking at Omid is a very small profile is – it is as if she was doing some kind of indicative test.  Of course, there is no evidence to that because there is no ‑ ‑ ‑

BELL J:   Mr Keim, I think it is difficult to either take us to evidence given in another case ‑ ‑ ‑

MR KEIM:   Yes, your Honour, I accept that.  On page 430, which is the next page or the page at which that extract finished ‑ ‑ ‑

BELL J:   Just before you go to page 432, it is on page 430 at line 14 and following that one gets Ms Maxwell’s statement:

I can’t offer any opinion on the age of the contact.  I can only tell you that the petrol residues were found.

Then at line 19 there are not specific studies published in relation to that topic but Ms Maxwell goes on to give the account of the master’s thesis.

MR KEIM:   I thank you for that, your Honour.  On that same page, 430, there are lines 30 to 40 – that is where she talks in terms of “highly likely” ‑ ‑ ‑ 

BELL J:   Yes.

MR KEIM:   ‑ ‑ ‑ with regard to the pants and the shoes.  At page 437 – the journal article with regard to incidental – no, that is a journal article with regard to ‑ if you are actually pouring petrol, where it might bounce up to.  That is on page 431, at lines 29 to 41.  The passage I wanted to take your Honours to was at page 437.  That is the article with regard to time.  That discussion is at lines 15 to 25.  We have already talked about that.  Then at page ‑ ‑ ‑

BELL J:   Ms Maxwell did not adopt or modify the opinion that she expressed on page 430, at line 14, namely, that she was unable to offer an opinion on the age of the contact, did she?

MR KEIM:   She did not, your Honour.  She did not.  She offered it as a something.  The study that the Crown relies upon, we say wrongly, is at page 438.  It starts at line 25 and goes over to the next page to about line 8.  What we say that shows is that a single act of filling up your lawnmower with petrol – a single act – gives you something like a 12 per cent chance of having petrol residues on your clothes.  Working as a petrol person on the tarmac has a smaller percentage.  But we say that that case really is a strong indication that one has to exclude the possibility of innocent contact because it shows that doing things like filling your lawnmower, it is capable that you will get petrol on you and that will be detectable in subsequent studies – in subsequent testing. 

That is what we wanted to say with regard to Ms Maxwell’s evidence.  And just repeating what I said earlier, we say that you cannot safely make a finding that Mr Coughlan did have petrol on his clothes, and that in the absence of that, that cannot be used to combine with any other primary facts to draw the inference of guilt.  And so we say that is a key part of the Crown case which falls short.

I will not go to the passages, but in paragraph 3 we have set out reasons why, in terms of the cause of the fire, unlike the Court of Appeal’s conclusion, it is not safe to take anything from the olfactory evidence of Mr Dyke and Mr Patruno, and as I was saying to your Honour Justice Bell earlier, we say that if the Crown wanted to do that, they would provide that evidence to Ms Gormon or Mr Spencer ‑ there is lay evidence that there was a smell of petrol.

And this is actually raised with Ms Gormon, if we can go back to page 680, it was raised in cross‑examination by Mr Coughlan, she was at some pains to – her terms was it would not necessarily give rise to petrol odour.  But she was at some pains to discount the possibility that where there had been an explosion of this kind, that somebody outside the house before the explosion would smell petrol, so that really puts a sword to the heart of any suggestion that Dyke and Patruno’s evidence takes the evidence of Ms Gormon and Mr Spencer any further, in our submission. 

KIEFEL CJ:   Was there any evidence about the injuries that Mr Coughlan sustained, and any question of proximity to the source of the explosion?

MR KEIM:   There was no expert evidence on that, but Dr Black provided – and Mr Coughlan I think provided evidence with regard to the injuries he suffered.  And in our written submission we have referred to the evidence that goes to those injuries, and essentially it was more on his left‑hand side and the most serious of injuries was on his back.  And we say two things with regard to that.  It is at page – I will have to translate this to the numbers at the top of the page ‑ ‑ ‑ 

EDELMAN J:  His shoes were entirely melted, were they not?

MR KEIM:   Yes, yes.   So Dr Black’s evidence starts at page 663; at page 665 he gives evidence with regard to the actual injuries.

BELL J:   Did you say page 665?

MR KEIM:   Yes, 665, your Honour.  One short of the devil’s number. 

KIEFEL CJ:   No witness suggested anything further arose ‑ ‑ ‑

MR KEIM:   No.

KIEFEL CJ:   ‑ ‑ ‑ or could be inferred from the fact of injury or the nature of ‑ ‑ ‑

MR KEIM:   Yes.  You can see Ms Wilson sought an opinion to that extent and Dr Black did not provide it.  What we say is that they are perfectly consistent with what he said, which is he is walking towards the front, the house was on his left‑hand side and that is when the explosion occurred.  Then he says he fell to the ground, that he may have rolled over and he was seen very soon afterwards by the two people at the front of the house and Mr Dyke called out to him, which is consistent with his evidence, as we have said in the written submissions.

So we say that is consistent with his story but we say more particularly two things.  We refer to the evidence that he did not have the car keys on him.  They were not found on him.  There was no evidence but the police – he suggested that the house keys were found with his wife.  His evidence was he got there, he was going to make himself a cup of tea and he found he had forgotten the keys.  He went down the back and read the paper.  It was getting dark.  He had been there for about an hour.  He started walking towards the front of the house and it blew up.  We say the injuries are consistent with that.

We say that this sort of explosion, unless you detonated it remotely, even if you did have keys to the house, the chances that you would survive are – anyway, you would have a whole series of ‑ a different complex of injuries.  So we say the fact that remote detonation was not ruled out, the fact that he had injuries which are consistent with his story and the fact that it was such a major gaseous, vapour explosion all indicate that it was very, very unlikely that he was the person who ‑ ‑ ‑

EDELMAN J:   Where do we find the evidence that his injuries would have been very different if he had been inside the house?

MR KEIM:   We do not, your Honour.  I am really speculating on that to say that we do not have anything connecting his injuries with him being inside the house and starting it, but if you go one step further and say from a commonsense point of view, this sort of explosion, how could you ignite that from within the house and survive?  There is just no evidence on the subject but the absence of evidence points much more strongly to innocence than it points to the Crown’s case, in our submission. 

I think I got to the doctor’s evidence from Ms Gormon’s evidence with regard to whether it was likely that you would smell petrol outside the house.  There is not a lot of evidence that I can take the Court to to say that there was no attempt made to exclude innocent explanations for alleged petrol residues, but I understand that that is accepted.  The one passage of evidence I can take your Honours to is in volume 3 in one of Mr Coughlan’s interviews.  This is at page 1020, lines 28 to 50. We would point out that this was not given in answer to a question of, “Were you fiddling with petrol earlier that day?”  This was actually a question with regard to, “Why did you not tell your wife that you were going to the Bribie house?”  But, voluntarily, in answer to that question, he explains that he had been blowing:

all the leaves and stuff –

He had blown all the leaves into piles and that raises a possibility that it was – it was obviously a mechanical leaf blower, it may have been a petrol‑driven leaf blower, he may have filled that up.  So the one piece of evidence as to what he had been doing previously does raise the possibility of an innocent contact with petrol.  No other evidence was sought.  And the obvious thing was to ask him detailed questions as to the things that he had done over the preceding days but also to ask his wife and to either corroborate or contradict his story, and we find that the investigation was conducted in a very unusual way.

I wanted to take your Honours to some of those passages with regard to why there was a failure to call the wife, and why there was a failure to take a statement from the wife.  This requires that I take your Honours to page 814 ‑ ‑ ‑

GAGELER J:   What are you trying to get out of this?

MR KEIM:   Sorry, your Honour?

GAGELER J:   What are you trying to get out of the treatment of the wife?

MR KEIM:   Yes.  I am saying that rather than take a full and proper statement from the wife to see whether that provided exculpatory or inculpatory information with regard to the appellant, the chief investigator, Mr Weare, took the wife into a room, did not take notes, did not record it, bullied her, gave an indication that he did not want to hear anything from her that would help the case ‑ “I only wanted to talk to you in the hope that I would get some good lies from you”.

So it indicates – it is part of the evidence that indicates an inadequate but a partial investigation.  And so we say, coming back to the point, which is innocent contact with petrol or other solvents were not excluded, and were not sought to be excluded, in fact, there is evidence that the investigators were not even – it was not ‑ ‑ ‑

BELL J:   Mr Keim, regardless of the diligence of the investigators, the issue comes down to whether or not, on the evidence that was before the jury, an ultimate reasonable hypothesis consistent with innocence was excluded.

MR KEIM:   Yes.

BELL J:   It may not really assist you much to go into this.

MR KEIM:   I do not need to go any further on that point, your Honour, yes, yes.  Anyway, the passages are there, and the significance we give them has been stated.  I will not take the Court to them.  What we say with regard to those three factors – the cause of fire, the proof or lack of that the appellant was in contact with something that could have caused the fire and the failure to exclude innocent contact with regard to that – we say the Crown case was necessarily dependent upon establishing beyond reasonable doubt that the fire was a result of a build‑up of petrol vapour, that the appellant’s clothes bore clear proof of recent contact with petrol and all possible innocent explanations for petrol residues were excluded.  We say it failed on each of those points.  That is really the end of section 1 of these oral submissions.

With regard to those matters which essentially pointed in favour of the appellant’s right to be acquitted, we say the absence of any financial or other motive to commit insurance fraud – and that is accepted by the Court of Appeal at paragraph [389] of their reasons which is at page 114 of the core appeal book - another factor is that flight from the scene was explained. 

In fact, the Court of Appeal accepted at paragraph [319] that the appellant may have thought that he was being pursued.  I will take your Honours to the passage.  It is in the core appeal book, as I said, at page 114.  It is paragraph [319].  It is actually on an earlier page - it is at page 102 of the core appeal book.  It is rather elliptically stated by the Court of Appeal that the Court of Appeal accepts that the appellant may have “believed” that he was being pursued.

KEANE J:   That might be putting it a bit high, to say that the Court of Appeal accepted he believed he was.  Would it have been unreasonable to reject the appellant’s account as to why he fled the scene?

MR KEIM:   We rely on the way in which the Court of Appeal has expressed it.  We say – and the Court of Appeal does say this in its judgment and our learned friends say the jury may have not believed the appellant’s account of the events.

KEANE J:   If they did not believe it, do you submit that would have been unreasonable of the jury?

MR KEIM:   Yes, we do, your Honour.  We say that there was no inconsistency pointed to, no aspects of the facts apart from the fact he said at one stage that he said that his house was at - there was a clear misremembrance. 

KEANE J:   Do you submit it would be unreasonable, or was unreasonable to reject the appellant’s account as to why he was at the scene? 

MR KEIM:   Yes, your Honour, we say that would be unreasonable. 

KEANE J:   Are both those contentions important to your case? 

MR KEIM:   No, your Honour, because you get – these principles are discussed in Edwards v The Queen and if one ‑ ‑ ‑ 

KEANE J:   But just focusing, without for the moment worrying about what use can be made of the point, why would it be unreasonable to reject the appellant’s account as to why he was at the scene.  I mean it just sounds odd.  He is there to sell a motorbike that he may or not have been entitled to sell.  He leaves the motorbike a long way from the scene.  He hangs around.  The person to whom he is going to sell it does not turn up.  The explosion occurs.  He flees the scene.  Some hours later he turns up at the police station.  He gives an account as to why he does all of those things.  Why would it be unreasonable of the jury to reject that account? 

MR KEIM:   Well, firstly your Honour, the bike was advertised on two internet accounts and that was not contradicted.  That was clearly something that could be checked.  He gave the name of the person to whom he was selling the bike.  No evidence was called from that to contradict his story.  He gave a clear description of the person.  No evidence was called – no investigation was made as to whether such a person had been seen in the neighbourhood or not.  So there was no attempt to contradict that part of his story. 

The Crown – sorry, the investigators – if you read the early interviews, there are three interviews, they thought that he was making up the evidence about a car being parked in front of him.  They say no one saw a car parked in front of the house, or that a person yelled at him.  But three days later one of the four men, who were never pursued by the investigators, his mum made him go and talk to the police and that corroborated that part of the appellant’s version of events to the police because Mr Dyke said that their car was parked in the vicinity of the two houses and that when the explosion happened he went over to the person who emerged and asked him if he was all right. 

Now, somebody who has just experienced close up an explosion may well have misinterpreted “Are you all right?” as somebody yelling at them.  But all of those parts of the story either check out or are not contradicted.  So at what point does the Crown point to something and say this is not just an unusual story but say the evidence shows that you were telling lies?  Going back to the question of what use can be made of it, the situation of the Crown is that they really have to prove the falsehood of the version of events – you get into a circular situation ‑ ‑ ‑ 

KEANE J:   Well, not necessarily.  If his account is rejected as being objectively unlikely, one is left with a situation where, without drawing any inference from the lies, if they be - without drawing any inference from a rejection of the evidence given if it is not rejected as lies, you have a situation where he is present at the scene for no reason that – no acceptable reason, and he flees the scene for no acceptable reason.

Now, you might say that is not enough to find a case of fraudulent arson.  But just in terms of those aspects of the case, what I am concerned with is the notion that it is unreasonable of the jury, necessarily unreasonable of the jury, not to accept his account as to why he was there and why he fled.

MR KEIM:   Well, I have explained ‑ ‑ ‑

KEANE J:   Yes.

MR KEIM:   I have explained the factors which check out and are consistent.  He was seen to be injured.  The fact that he did come back to a police station in about two and a half hours, the fact that he answered all the questions that the police had for him, there is no suggestion that he went and changed his clothes or cleaned his wounds or did anything that was overtly ‑ he was a person whose house had just exploded next to his left ear and he fled the scene, your Honour.

BELL J:   Complaining to the police when he did turn up to the Caboolture station that it was his belief that someone was trying to kill him, I think.

MR KEIM:   Yes, and that was less unreasonable because he had experienced the car arson, for which no one has ever been charged and which he had complained before this happened to the police about a failure to thoroughly or energetically investigate that.  So it was a story that one might have heard and thought was unlikely, but the police had every opportunity to negative it in some way.  All of the key facts ended up being uncontested.  So we say it would have been unreasonable of the jury to reject it.  We say that even if they did it does not take the case any further.  They are our submissions on that.

BELL J:   Does it get higher than this, Mr Keim?  On your case, as I would understand it, you would say that the evidence of leaving the scene was not available as consciousness of guilt.  Is that your contention?

MR KEIM:   Yes, your Honour. 

BELL J:   Yes.  Did the judge leave it as evidence of consciousness of guilt?

MR KEIM:   No, your Honour, definitely not.  Yes.

BELL J:   So where does this take us?

MR KEIM:   We say that leaving the scene is neutral.  We say presence at the scene is probably worse than neutral for the Crown.  So we say that the Crown returns to those three points that I have gone to.  We say – and there is the technical authority about absence of motive is not the same thing of absence of proved motive, but we are talking about arson here.

I mean, all of the cases about a lack of motive are cases like Plomp, where you do not seem to necessarily – I am talking generally in terms of human nature here.  You find that somebody has killed somebody without an overt motive, not every day, but it does happen.  There are lots of famous cases where that has happened.  But you do not find people burning down their own house to claim the insurance ‑ ‑ ‑

BELL J:   When the house is underinsured, as the trial judge put it.

MR KEIM:   Yes.  That is our point with regard to motive.  So it does not really matter whether you categorise motive as unproved or proved not to exist, the lack of a clear motive in an arson case.  As her Honour the trial judge said, the whole core of arson is the fraud within it – that is, you can burn down your own house if you want to, as long as you do not make ‑ ‑ ‑

BELL J:   Well, it was an element of proof of the first count, charging arson, that the jury were satisfied that the act was done with the intention of defrauding the insurer.

MR KEIM:   Yes.

BELL J:   To establish its unlawfulness.

MR KEIM:   Yes, and that is why I say a lack of an obvious motive is very, very cogent in terms of pointing towards a not guilty verdict in an arson case, whereas difficulty in proving a motive might well not be the case where somebody has either killed a stranger or somebody has killed a family member.

Your Honours, we have set out those matters which are of the kind and we have set out the – we have been a lot less exhaustive in giving references because all of those references are in our outline of written submissions, they are in our reply and particularly with regard to the possibility of a second person fleeing the locality, that was set out in some detail in our special leave submissions.  So we have just been a little bit selective in some of those.

We say that the absence of the house keys and therefore the unlikelihood that lack of any proof as to Mr Coughlan being inside the house is an important factor because not only do you not have a cause, you do not have a mechanism and there was no evidence to suggest that Mr Coughlan engaged in a remote detonation.

Your Honours, there was an abundance of evidence that the police focused from a very early stage on just investigating Mr Coughlan and not looking to evidence that might be inculpatory or might point to other people and we set this out in our written submissions.  But at the top of page 3 of our written outline ‑ ‑ ‑

GAGELER J:   This is in the same category as the treatment of the appellant’s wife, is it not?

MR KEIM:   It is, your Honour, but we make this submission, that if the investigation is an unenergetic investigation we get into the realm of Donald Rumsfeld’s “unknown unknowns” in the sense that we do not know what a more thorough and more open investigation might have found.  It might have found further inculpatory evidence of the accused but it also means that he has lost the opportunity of having a trial, whatever inculpatory ‑ ‑ ‑

KEANE J:   Is it not a bit more specific than that?  Do you not say that there is the failure on the Crown to exclude the possibility of other candidates?

MR KEIM:   Yes, your Honour, we do.

KEANE J:   I mean, ordinarily, in a case like this, one would seek to establish that there was really only one candidate and that is the problem with a deficient investigation, is it not?

MR KEIM:   Yes, your Honour.

KEANE J:   That, really, there is not the exclusion of other possible candidates?

MR KEIM:   Yes, your Honour.  We adopt what your Honour has said but we say there are also small bits of exculpatory information that might have been available.  There might have been the obligation of the Crown to put before the Court.  Your Honours, just on this point, we say that the law has a real concern with the fairness of an investigation.  That is clear – that is being referred to and discussed in the context of a permanent stay.  I am talking about Jago v The Queen, which is at tab 7.  It has not, as far as I know, been applied that a prosecution has been stayed because of deficiencies in the investigation.  But, there are two passages in the reasons of ‑ ‑ ‑

BELL J:   Mr Keim, where is this going?  There was no application for a stay.

MR KEIM:   No, no.

KEANE J:   There has been a trial.

MR KEIM:   Yes, yes.

KEANE J:   And your complaint about the trial is that the conclusion was an unreasonable one.

MR KEIM:   Yes, your Honour.

BELL J:   Because the evidence was insufficient to support a finding beyond reasonable doubt.

MR KEIM:   Yes.  One of the factors in that regard was the inadequacy of the investigation.  The passages – we have referred to them, your Honour – it is at tab 7.  One is in the middle of page 29 and the other is in the bottom half of page 30.  The sort of reference is:

But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.

In answer to the question of your Honour Justice Bell, it is simply cited to say that not only does the question arise as to whether there is a sufficiency of proof, we say the law – and this Court is also interested in investigations being conducted properly – and this is not an application for a stay.  But that is one of the reasons why insufficiency of investigation is a matter that one should treat seriously when one is considering a sufficiency of proof.  I am not seeking to take it any further than that, your Honour. 

BELL J:   Indeed, you do not have a ground that takes it anywhere.  Your ground is one of insufficiency of evidence to support the verdict, is it not?

MR KEIM:   Yes, I accept that, your Honour.  I accept that. 

BELL J:   In this circumstance in what might be characterised as an impeccably fair summing‑up, the trial judge drew to the jury’s attention some of your client’s complaints respecting the adequacy and, indeed, the fairness of the investigation.  And the jury, having the benefit of the reminder of those submissions, indeed supported to some degree by the authority of her Honour’s office, nonetheless, concluded that the prosecution had been established to the requisite standard and the question with which this Court is concerned is the M question.

MR KEIM:   Yes, your Honour, yes.  We put it forward no more than as a contextual matter to the sufficiency of the proof.  If I can turn to the – one thing before I turn to the third section.  We set out some passages from the evidence of Ms Freeman and Ms Trindall in the outline of his oral submissions.  We would just mention to the Court that some of their key evidence is in their statement to the police which was part of the evidence in‑chief, Ms Freeman’s at page 189 and Ms Trindall’s at ‑ ‑ ‑ 

BELL J:   Is this with respect to the man with the beard leaving the scene? 

MR KEIM:   Yes, your Honour.

BELL J:   Mr Keim, in the way the matter was conducted before the Court of Appeal, it would seem that considerable emphasis was placed on the second ground which contended in terms of failure to exclude that particular hypothesis.  Am I right?

MR KEIM:   Yes, your Honour. 

BELL J:   In a very careful review of the evidence, much of the concentration of their Honours was on addressing the complaint raised by ground 2.  Their Honours were satisfied that the Crown had excluded that particular hypothesis.  The exclusion of that hypothesis is really neither here nor there to the essence of your contention that in circumstances in which, amongst other things, there were other people with opportunity to have committed this fire, where there was no obvious motive for the appellant to have set fire to the house and your complaints concerning the sufficiency of the scientific evidence.  Those are the matters at the heart of our complaint, are they not?

MR KEIM:   They are, your Honour. 

BELL J:   So that when one then turns to the ultimate analysis in the Court of Appeal, if one goes to appeal book 115, [391] and [392], one see the Court of Appeal concluding that:

there was very powerful evidence from the scientific experts that the appellant’s shoes and tracksuit pants had been in contact with liquid petrol within hours before the items were tested.

Do I understand that you challenge the basis of that conclusion?

MR KEIM:   I do, your Honour.

BELL J:   The court goes on to conclude that the obvious response was that the appellant had distributed petrol, which led to the explosion.

MR KEIM:   Yes, your Honour.

BELL J:   That was the essence of the court’s conclusion.  And you contend, in circumstances where there is no evidence as to what constituted the vapours that gave rise to the explosion, and given the difficulties in relation to Ms Maxwell’s evidence, there just was an insufficient basis to support the court’s conclusion at [391] and [392]?

MR KEIM:   Yes, your Honour.  That is the heart of the case.

BELL J:   Yes.

MR KEIM:   Can I just say something with regard to the second man hypothesis, which we say was not excluded.  I just want to say, in terms of the adequacy of the court’s examination, we have pointed out in our written submissions that there were six factors across which this person, as seen by the two young women, differed from the appellant.  And the other thing is that their Honours did make an error, and this is conceded by the Crown, with regard to the existence of the two car parks.

So I accept absolutely your Honours’ observations with regard to the heart of our case.  But we are reluctant, in case one of your sibling Justices is interested in the other argument, the second man hypothesis, and we have tried to point out in our written submissions why we make the submission that the Court of Appeal’s – and we say it was a careful analysis, and they came to a particular view, but we say it was in error because they did not look sufficiently closely at those factors.

GAGELER J:   The second man hypothesis was a different ground of appeal, was it not?

MR KEIM:   Sorry, your Honour?

GAGELER J:   The second man hypothesis was a different ground of appeal.

MR KEIM:   Well, we say it was not, because we say that that is an independent hypothesis of innocence, quite separate from the lack of key proof which was not sufficiently excluded.

BELL J:   I think that is why the Court of Appeal indicated, in the way the matter was conducted, the two were, as it were, run together.

MR KEIM:   Yes, yes.

BELL J:   Yes.

MR KEIM:   Thank you, your Honour.  I am about to start my third section, Chief Justice.  Do you think that is a convenient time?

KIEFEL CJ:   That is a convenient time, thank you.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Keim.  Where are we in relation to your outline?

MR KEIM:   Your Honour, we are at the start of paragraph 7, and we are commencing at ‑ ‑ ‑

KIEFEL CJ:   I see there are a few references to Shepherd v The Queen.  I think I speak on behalf of the Court when I see we do not need to be taken to Shepherd and its principles.

MR KEIM:   Which leaves me with very little to say, your Honour.  The four passages there illustrate the two separate propositions.  The first one at page 580 is the classic statement about one piece of evidence may corroborate another.

KIEFEL CJ:   Yes.

MR KEIM:   But the point I made earlier in answer to your Honour Justice Bell’s question is that they have to be evidence that can corroborate each other.  In terms of this discussion between us and our learned friends, we feel that the end of that passage from The Queen v Van Beelen illustrates very strongly the distinction between proved facts which ‑ ‑ ‑

KIEFEL CJ:   That is what you say the Court of Appeal has done here with a weak prosecution case.

MR KEIM:   Yes.  They have combined insufficiently proved facts for the purpose of drawing an overall inference.  So, with your indication, your Honour, those are our submissions.

KIEFEL CJ:   Thank you, Mr Keim.  Yes, Mr Heaton.

MR HEATON:   The key difference really between the appellant’s contentions and the response lies in the fact that, in our respectful submission, this was a circumstantial case that in fact had some strength to it.  The starting point, to perhaps adopt the structure of my learned friend’s submissions, might be helpfully to look at the scientific evidence and in fact there was very much that was not in dispute about the scientific evidence that is important in terms of ultimately the question to be decided by a jury and then the Court of Appeal in their analysis of the case.

EDELMAN J:   Do you accept that, whatever the strength of the scientific evidence, it did not explain either the how or the why of the case – how the explosion occurred or, obviously, why, motive?

MR HEATON:   No.  Why remains essentially an issue that is not answered in the trial but the fact of that was very much top of mind throughout the trial.  So the fact that there was no motive was very much promoted as a reason to undermine the conclusion of guilt.

EDELMAN J:   The “how” was not answered either. 

MR HEATON:   The “how” was a bit more nuanced in that the scientific evidence did go to support a conclusion as to how the house came to be on fire.  In my submission, there was no dispute about the key features of that evidence, that is, it was as a result of a build‑up of a gaseous fuel inside the house which was ignited in some way and, to some extent, that is a “how” that was unanswered.  But the fact that it was as a result of a gaseous build‑up of a fuel inside the house was not challenged.  That then limits the circumstances in which the fire could have been caused.  Indeed, coupled with the fact that for the hour leading up to the explosion the appellant was at the house ‑ ‑ ‑

EDELMAN J:   Outside the house.

MR HEATON:   He was outside – he was outside the house on his account but, perhaps helpfully, he excludes the possibility that anyone else was at the house during that hour so as to be able to cause a gaseous build‑up of an ignitable fuel to be inside the house.

KIEFEL CJ:   Assuming that that all happens within the space of an hour – that is the assumption.

MR HEATON:   It is the assumption.  But there is ‑ ‑ ‑

KIEFEL CJ:   He is not inside the house at any point because he ‑ ‑ ‑

MR HEATON:   He says that. 

KIEFEL CJ:   There is nothing against it, is there?

MR HEATON:   There is, we say, in that this was a circumstantial case.  So whether or not he was inside the house might depend on what the jury make of the other evidence.

EDELMAN J:   There was no evidence called or expert evidence by the prosecution to suggest that the burns that he suffered could have been consistent with being inside a house where the explosion is such that it is heard blocks away.

MR HEATON:   No, no.  In fact, perhaps common sense might dictate otherwise.  But it was not addressed with any specific evidence.  Or, at least, Dr Black when asked if he could offer an opinion about that declined to do so – or was unable to do so. 

BELL J:   To the extent that you say that it was unchallenged that the cause of the fire was a build‑up of gaseous vapour that was then ignited in some fashion, that might, on one view, be rather inconsistent with what, as I understand, the Court of Appeal reasoned, namely, that the cause of the fire was splashing some petrol inside the premises and lighting the petrol.  There was no expert evidence to assist in understanding either what the accelerant was or what the substance was that gave off the vapours – no consideration, for example, of whether the house had gas installed or some other accelerant.  So, there is an issue about linking any evidence about the petrol to the explosion.  As you invite consideration of common sense, if one spills some petrol around and lights it, in the ordinary course of events it might not actually cause an explosion – as distinct from a fire that quickly gains hold and destroys a house.

MR HEATON:   Yes.

BELL J:   And if it did, if there were sufficient petrol vapour to explode, then there is the difficulty from the Crown’s point of view that the appellant does not appear to have suffered the sort of injury one might expect. 

MR HEATON:   There are a couple of things I guess that flow from that analysis of that case.  The scientific evidence went so far as to say that the explosion – the ignition of the gaseous fuel – was consistent with a substance such as petrol.  They certainly acknowledged that other gaseous fuels might also cause an explosion, but the effect of their evidence was, when considered as a whole, that petrol was the one that loomed more large.  The notion of gas being responsible ‑ whilst gas being connected to the house was not specifically explored in the evidence ‑ there are other, perhaps, nuances to the evidence such as the corner of the house which was described as being the wet area with asbestos or fibre sheeting around it, which explained why that area of the house was more intact than other areas of the house, which supported the conclusion that the fire originated elsewhere than in the wet area, that is, the kitchen or the bathroom of the house. 

Again, this was not touched upon directly in the evidence, but were it that gas was connected to the house, it is more likely that it would be to the kitchen than to the other areas of the house where the apparent seat of the explosion was. 

BELL J:   But if there was a build‑up of vapour that, one would expect, would flow around the house.  The point of ignition would be the significant point, would it not?

MR HEATON:   Perhaps, yes. 

BELL J:   Does one not come back to this difficulty that the two experts called of which, as I understand it, Sergeant Gormon was the more qualified, neither of them actually went into the premises.  No tests were conducted with a view to either establishing the seat of the fire, or the nature of the accelerant. 

MR HEATON:   That is correct, but that does not then exclude inferences being drawn as to the “how”.  Whilst they certainly did not conduct further testing they still offered opinions that touched upon the “how”, such as the build‑up of gas to cause an explosion, the types of substances that might be suitable in that environment being somewhat limited.

So let us put that in the basket, for example, and then turn, as we say it is essential to do at every step of the consideration of a circumstantial case, to the other pieces of the evidence which might then go to support a conclusion of guilt such as the fact that his clothing had petrol residue on it.  At that point, can I pause to point out that in relation to this evidence there are really two aspects to it.  The first is that Maxwell’s opinion was that there was petrol on his shoes and clothing, on pants, track pants.  It was how that petrol came to be on his shoes and track pants that she expressed herself initially as “probably”, and then “highly likely, direct contact with liquid petrol”.  So there were really two issues there that in submissions my learned friend has somewhat conflated.  So if there was no doubt ‑ ‑ ‑

BELL J:   Can I just take you, in relation to that, if one does go to the re‑examination of Ms Maxwell at 447, at line 15:

So previously I mentioned that I think that the shoes and the tracksuit pants probably had liquid petrol on them.  So they’ve probably been ‑ they’ve come into contact with a liquid petrol source ‑ ‑ ‑

MR HEATON:   Yes.

BELL J:   Now, that is ‑ ‑ ‑

MR HEATON:   That is perhaps an adjunct to the evidence she gave earlier at 429, line 29:

And what were those results?---So the tracksuit pants and the shoes were found to contain petrol residues.

BELL J:   I thought we were coming to the point of the contact with liquid petrol.

MR HEATON:   Well, what I am seeking to do at this point in the discussion of the sufficiency of the scientific evidence is explain that it was actually not in doubt, according to the scientific evidence, that there was petrol residue on the shoes and track pants of the appellant.  The 10 out of 12 components of petrol that led Maxwell to give the opinion that it was probably petrol related to the vapours that were found on the upper garments.  So on the lower garments petrol residue was found.

EDELMAN J:   The quantity of that was the equivalent of a drop in an Olympic swimming pool.  Is that right?

MR HEATON:   I do not know that she ever quantified that.  I might be wrong, and my junior will seek that out.

EDELMAN J:   There was evidence given somewhere about it being ‑ something being the equivalent of a single drop in an Olympic swimming pool.

MR HEATON:   That might have been in the discussion about the period of time over which it might be detected, in relation to the study about the members of the public getting about with petrol on their clothes.  I will have my junior perhaps turn that up.  But I do not – my recollection of the evidence of Maxwell is that she never quantified, was unable to quantify how much petrol was on it.

BELL J:   What I think she was able to indicate was that the testing was sufficiently accurate to be able to detect one millilitre of ‑ ‑ ‑

MR HEATON:   It might have been in that context.

EDELMAN J:   It is page 442 and it was an answer to a statement that it was:

one drop of petrol in an Olympic‑sized swimming pool ‑

and her answer was that her analogy changed to:

one part in a million in a litre –

is enough to detect petrol.

MR HEATON:   I see, and I note in the big paragraph above that commencing at line 16, towards the end of that:

that the quantities of petrol identified on the shoes and the tracksuit pants was significant compared to the other three items which was petrol vapours.

BELL J:   I think in relation to the other items am I right in thinking that she concluded that, if they had been stored with the track pants and the shoes, that might be one explanation for the presence of the vapours?

MR HEATON:   Yes, but not the other way.

BELL J:   No, but they had been stored together on the evidence.

MR HEATON:   That is right.

BELL J:   So one comes back to the significance of the finding of petrol residue on the track pants and the shoes and to her opinion that one could not determine the age of the contact, only that residues were found.

MR HEATON:   That is right.  Yes, that was her principal opinion.

BELL J:   Yes.

MR HEATON:   Which was, in my submission, qualified to some extent by the explanation she gave by reference to the study that she was aware of.

BELL J:   This was the unpublished master’s thesis.

MR HEATON:   That is right.

BELL J:   She did not in terms qualify her opinion.

MR HEATON:   No.

BELL J:   And was not invited to.  What do we make of the unpublished master’s thesis?

MR HEATON:   Well, it was a factor that was before the jury and it was a matter that they could take into account.  The effect of it was, if nothing more precise, that over time petrol evaporates and would become undetectable.  As to how long that period of time was, she remained perhaps steadfast in that it depends and in explanation to give perhaps some assistance in determining the sort of period of time we are talking about, she referred to the study that she was aware of.

It can be said that there was no point to a reference to that study if it was not intended to assist in terms of giving some general idea as to the period of time she had in mind when she was talking about petrol evaporating and then becoming undetectable.  So it was something that was there.  It may, in the scheme of things, have been of reduced weight because of the nature of it, but it was still a factor that the jury could take into account when assessing all of the evidence.

Indeed, if I was to turn then to the conclusions that were made by the Court of Appeal in paragraph [391], to which your Honour Justice Bell made some reference during my learned friend’s submissions, can I say this as a general proposition.  The structure of this judgment was such that it was clear that throughout the main body of the judgment there was a very detailed summary of the evidence of each of the witnesses.  In that detailed summary, it also included factors which were raised in cross‑examination which may have undermined conclusions to be drawn from it. 

So, it certainly cannot be said that the Court of Appeal was not alive to both the strengths and weaknesses of the individual pieces of the evidence.  So, when one is looking for the court’s analysis – consistent with the principles in M – we say that we find it there.  But then in the next section, following on a recitation of legal principles about which there is no contest, in using the structure of the arguments that were advanced, the court then analysed each of those arguments by reference to the evidence which had preceded it in the judgment – in the summary of the evidence in the judgment – and analysed, again weighing up the evidence – analysed the merits of the submissions that were advanced in challenge to the verdict and came to conclusions about that.

Again, when looking for the application of the principles in M, we say this is where you find it.  What appears then, commencing at paragraph [389] through to [398], is a statement of conclusions which cannot be read in isolation from the detailed analysis which had preceded it.  Essentially, the paragraph at [391] is, perhaps, an articulation of the conclusion that Justice Morrison – with whom the other members of the Court agreed – reached as a result of his analysis of the evidence.  So, his characterisation of it being very powerful evidence, from the scientific experts, that the shoes and tracksuit pants had been in contact with liquid petrol within the hours before the items were tested must surely find its foundation on a consideration of the whole of the evidence. 

BELL J:   And an acceptance of the unpublished master’s thesis as distinct from the opinion of the only expert that was called.

MR HEATON:   We would say bringing into account all of that.  The opinion of the expert was more nuanced, if I can respectfully submit that, than to simply say I am unable to say how long a period of time over which you might not be able to find something.  There was more to it than that that might give some insight.  The effect of it was to leave very much open a period of time which was relevant to the events that we are talking about over which the petrol may not have then been detected.

BELL J:   Can I just take you then to [392]?  The court reasons that the presence of the petrol residue on the shoes and track pants established that those items had been in contact with liquid petrol that afternoon.  That compelled rejection of the appellant’s account.  One takes from that that the presence of the petrol on the clothing permitted the inference, beyond reasonable doubt, that the cause of the explosion was the ignition of petrol vapour inside the house notwithstanding the absence of any evidence of a scientific character as to the nature of the accelerant.

MR HEATON:   Again, can I say that there is more to it than that.  It required an assessment of the whole of the evidence, which included - the scientific evidence, whilst leaving open the possibility of an accelerant other than petrol, petrol was the one that, as I said earlier, loomed large.  That in combination with the evidence from Patruno and Dyke – that they said that they each could smell petrol in the lead up to the explosion when they arrived at the neighbouring house ‑ that in combination with the fact that petrol residue was found on the tracksuit pants and shoes worn by the appellant at the time, paints a compelling picture, in my respectful submission, that petrol was the “how” to the exclusion of what other theoretical possibilities may have been left open based on a purely scientific assessment of the scene. 

I detect your Honour is keen to jump in, but can I say this.  It is important to understand that the scientific evidence was necessarily limited to being scientific expert evidence, that is, they arrive at a scene, they assess that scene, they look at an outcome and then conduct what tests are able to be conducted. 

BELL J:   Mr Heaton, it is not unheard of for an arson investigator to inspect the scene of the fire himself and to test for material which indicates the nature of the accelerant.  Is that fair?

MR HEATON:   Absolutely. 

BELL J:   That was not done. 

MR HEATON:   It was not done in this case but ‑ ‑ ‑ 

BELL J:   If one looks at the petrol on the shoes and the pants, and one goes to the published studies to which Ms Maxwell referred, one sees out of the 17 people who had been using a lawnmower, two had petrol on their shoes.

MR HEATON:   Yes, all of these features of the evidence were there for the jury to consider.  But it does not detract – the fact that there were hypothetical possibilities does not detract from the combined force of the evidence that was presented.  The experts explained that the limit on their capacity to examine further was as a result of the state of the scene that they came upon.  So that left the evidence in a state where they could offer what opinions they could offer, which were still weighty, in my respectful submission, and still went very much to the heart of understanding what had happened to cause this house to be on fire. 

KIEFEL CJ:   But the state of the evidence was it such that one – the jury ‑ could only really reason to a conclusion that the accelerant was petrol, that it was likely, or more than likely that that was the case, by reference to the petrol on his trousers?

MR HEATON:   And the smelling of petrol by Dyke and Patruno.

KIEFEL CJ:   Those two factors - that really would be the only basis for elevating the accelerant as being petrol, would it not?

EDELMAN J:   You also have Ms Gormon’s evidence that one would not necessarily be able to smell petrol if the house was shut.

MR HEATON:   Can I just comment on that, in terms of my learned friend’s submissions.  Yes, that was her evidence.  The key word is “necessarily”.  It was put to her as a proposition that seemed to have its foundation based on Mr Coughlan’s account that he was there and did not smell petrol and finding some scientific support for why that might not be so, or that might be so, that he did not smell petrol and her account was not necessarily – if the house was all locked up, you may not smell petrol outside. 

But the evidence in this case was that two people who were outside did smell petrol, and two people who were some distance away, that is, at the neighbouring property, or at the car which was parked in front of the neighbouring property.  So there was some evidence that petrol was smelled, and that too adds to the weight, the combined force of all of the evidence which goes to identify the accelerant, bearing in mind that at the end of the day, in our submission, it is the guilt of the accused which needs to be proved beyond reasonable doubt – not that it was petrol.

Of course, the fact that it was petrol is a significant feature of the circumstantial case that was presented.  But even this focus on the scientific evidence is not intended to distract from the need to consider the other evidence.  The fact that he did run away, the fact that he gave an account which in many respects has elements of implausibility about it, the circumstances by which he came to be at the house that day, meeting somebody that – I do not need to go through all the details of it.

But the jury need not have accepted that he was giving a truthful account of why he was there that day and in fact, the circumstances of his story were such as to suggest that it was an implausible account.  That, too, goes into the mix, in terms of understanding the how of what happened with this fire.

So whilst there are certainly matters in the evidence that were unable to be categorically proved, there were, in our submission, sufficient elements, sufficient features of the circumstantial case so as to paint a compelling picture of his involvement and his responsibility for being the person who did in fact, somehow, cause the vapours inside his house to ignite.

BELL J:   Mr Heaton, just taking up a further matter in the section of the court’s reasoning to the ultimate conclusion, their Honours at paragraph [394] observe that the:

lack of motive is not fatal to the conclusion of guilt.

The case was conducted, as I understand it, upon acceptance that there was no financial motive for making an insurance claim by burning the house down, and that because it was slightly underinsured, and I suppose also there was the presence of the uninsured boat in the shed which might have been endangered and the like.  Add to that the unchallenged evidence that the appellant had substantial financial resources of the order of $300,000 in cash available to him.

MR HEATON:   Yes.

BELL J:   So true it is that motive is not essential.  Nonetheless, it was essential to establish that the lighting of the fire was done with the intention of defrauding the NRMA.  So in that respect, when one looks at the whole of the evidence, it was necessary to have some regard to the capacity of the evidence to prove each element. 

MR HEATON:   Yes.

BELL J:   In that respect one might see the absence of motive and the appellant’s overall financial situation as having some significance that it might not in a case of another kind.

MR HEATON:   I accept that without question and it was certainly the case that the Crown was not in a position to identify any reasonable motive, but as to that element of dishonesty, the intention to defraud, it was stated very soon afterwards, indeed during the first conversation with the police, that that was his intention. 

When the body of other evidence that points compellingly to his being involved is properly analysed and we get to a position accepting that he was the one who did it, then it begs perhaps the rhetorical question:  why else would he do it than to make a claim on his insurance company for whatever purpose?  It may not have necessarily led to an augmentation of his financial position but it might have provided an opportunity of some other kind in relation to the property.  We do not know and I do not want to get into the realm of speculation.

BELL J:   There were circumstances of suspicion plainly attaching to the appellant.  There was the oddity of the arson of the car some weeks earlier.  In this context, the appellant’s account was that he understood that some person had set fire to his car and then he maintains he is outside the house when it explodes.  On that view, the implausibility of his conduct in the immediate aftermath perhaps fades to some extent in the sense that whether he was paranoid or not, he feared that he was being victimised.

MR HEATON:   That requires a bit more analysis as well, and indeed an analysis that was undertaken by the Court of Appeal, because the issue of flight was very much attacked as being neutral.

BELL J:   Yes.

MR HEATON:   And, indeed, the Court of Appeal’s analysis found it to be otherwise.

BELL J:   Was flight left as consciousness of guilt?

MR HEATON:   It was, and I do have that page reference.

BELL J:   It was.  Thank you.

MR HEATON:   Page 26 of the core appeal book in the summing‑up, at the top of the page where her Honour starts talking about that, but then in the paragraph beginning at line 13.

BELL J:   Yes, I see.

MR HEATON:   So his account about his departure was analysed and reasonably rejected as being a plausible one, it seems both by the jury and by the Court of Appeal.  Perhaps the throwaway line by the court at [319], which is the conclusion of the court’s analysis of the evidence relating to what I will call “flight”:

there was no foundation for a conclusion that the appellant was actually being pursued, even if he believed for a time that he was.

That properly understood in the context of the analysis which precedes it is perhaps an offhand comment that by the time he got to the highway, which is when he said he turned right, that is heading north, and then did a series of lefts and rights in order to ensure that he was not being pursued, by that stage it is impossible – that is my word – to conclude that he reasonably thought he was being pursued.

BELL J:   The point the Court of Appeal was making was there was no – the evidence did not support a conclusion that he was being pursued, and that was regardless, as it were, of his belief, and that does not shed light on his belief necessarily. 

MR HEATON:   The analysis by the Court of Appeal of this evidence goes further than just simply saying there was no evidence that he was not being pursued even if he believed he did.  The key words there, which are intended to perhaps demonstrate the implausibility of his account, are “even if he believed for a time that he was”, and that brings into consideration that by that stage – that is why I say by the stage that he got to the highway, bearing in mind from Bribie Island to the highway is one road ‑ so there is every opportunity, if he actually felt that he was being pursued, for him to have confirmed that during that journey.

And the evidence fell short of anything that confirmed that he was, and beyond any doubt, perhaps, again, my phraseology, by the time he got to the highway, there is no way he could have honestly believed that he was being pursued, even if – and this is perhaps an unnecessary but offhand account – when one considers the whole of the analysis it is clear that the court rejects that as being an explanation for why he fled. 

BELL J:   I understood the court in much of its reasoning leading up to that paragraph to be disposing of a contention that the Crown had failed to exclude the reasonable possibility of a second man wearing a hoodie, having a beard and motorcycle with no numberplate being in the vicinity at the time and that is a distinct issue which was prominent in the way the appeal was conducted. 

MR HEATON:   It was, and it perhaps plays into a consideration of all of these circumstances and the circumstances by which he came to leave the scene.  It was certainly very much the focus of the cross‑examination of the two children, Freeman and Trindall, that their description differed from others and from him, and the court dealt with that and we would say reasonably so.

That plays into this notion that there was a second person that could have been responsible or, indeed, a second person that was pursuing him.  So this evidence I guess touches on all of that and the analysis is relevant to those two perhaps distinct issues in the way the case was litigated.  But at the end of the day it was an account by him that need not have been accepted and the Court of Appeal analysed that.  We, of course, do not have insight into the jury’s thinking.  The Court of Appeal analysed it in a way that is, in my submission, reasonable, and discounted it.

BELL J:   Yes.

MR HEATON:   We have probably got off track in terms of the scientific evidence, but in the course of the discussion I do not know that there is perhaps much more that I can go to.  Perhaps if we bring into play Spencer’s account, which was unchallenged, that there was direct human involvement in the cause of this, in the “how” of this fire.  He added strength, whether it was needed or not who knows, but he added strength to the evidence given by Gormon that this was an explosive fire caused as a result of a build‑up of the gaseous vapour inside the house.

Whilst both Gormon and Spencer did not categorically exclude the possibility of some other triggering event like an electrical fire – and certainly by the time we get to Spencer’s evidence, whilst he accepted that as a theoretical possibility, he went further in his evidence and said that the damage that was caused was not consistent with an electrical fire, bearing in mind that the key feature of the commencement of this is that build‑up of gas inside the house.

So in order to understand what might have been the ignition, which we perhaps will never know with certainty, what we do know with certainty is that there had to have been a build‑up of gas inside the house, and the causes for that are limited.  So whether or not Molotov cocktail or detonation, remote detonation or electrical fire were reasonable hypotheses consistent with innocence was a matter properly for a jury to decide, at the end of the day – and in light of the whole of the evidence, need not have troubled them.

Again, at the risk of repeating myself, when we bring into play the fact that petrol was found on his clothes, the high likelihood of it having been as a result of contact with liquid petrol, the fact that petrol was smelled by Dyke and Patruno, who were there shortly before the explosion, adds – or paints a compelling picture as to the circumstances of how this fire occurred.

But the case is not limited to that.  The case then includes circumstances about his conduct before and after.  The fact that he left his car parked at the Narangba Valley Tavern in view of CCTV cameras, and the explanation he gave for that having elements of implausibility about it.  The fact that he told his wife he was going somewhere other than where he went. 

The fact that he went to the house at Bribie Island on a motorcycle which is not registered in his name, parked it away from the house, out of sight of the house, in circumstances where he said he was there to meet somebody who was going to buy it.  He gave an explanation, sure, but he thought it might be “dodgy”, his word, and that is why he parked it away.

That is a story which, in the context of all of the evidence, a jury might reasonably reject as being implausible, particularly in light of the fact that he says he did not know any contact details for this person, he was just expecting him to show up.  The fact that then, in light of that reason for being at the house, he sat around the back for an hour.  The fact that he was there to the exclusion of anyone else in the vicinity of the house, during the period of time leading up to the explosion, limits the opportunity of other people or other causes ‑ ‑ ‑

BELL J:   There were other people in the vicinity.  There were the young people in – was it the house next door?

MR HEATON:   It was the house next door.

BELL J:   Indeed, two of those young people happened to have been in the vicinity at the time of the car arson.  Without having any basis for making any allegation about them, the idea that there was no one else with opportunity is a hard one to make good, is it not?

MR HEATON:   With respect, can I say, no – in that what was necessary for somebody else to be responsible is to be able to get inside the house and cause a gaseous ignitable fuel to be there – to build‑up.  True, it is that Patruno and Dyke and their friends, Long and Drayton, were in the vicinity.  Their evidence was – and not challenged – that they had arrived shortly before for the purpose of obtaining camping gear.  Indeed, there was other evidence from, I think, Trindall, that supported that in that Mr Patruno was seen by Ms Trindall to be getting into the car with pillows.  So, all of that was explored.

Other people, sure, were in the vicinity and, indeed, once the explosion happened, people seemed to come from around the neighbourhood.  But in terms of people having access to the house and the capacity to cause a gaseous build‑up inside, the account given by Mr Coughlan to the police limited that opportunity significantly.  Indeed, during the hour leading up to that, the only reasonable conclusion on the evidence is that that was limited to him as having the opportunity.

BELL J:   Does the prosecution support the Court of Appeal’s ultimate conclusion that the compelling inference was that the appellant was depositing petrol inside the house and that he, while inside the house, ignited the petrol?

MR HEATON:   It is the “while inside the house” that, I guess, causes me to pause.

BELL J:   Yes, because of the unlikelihood that were that the case – given that sufficient petrol had been distributed to permit a build‑up of vapours such as to cause an explosion as distinct from a fire burning – albeit quite rapidly.  If one goes back to the Court of Appeal’s analysis then, it is that the evidence established, on this view, that petrol was the accelerant, that it had been distributed by the appellant and then he had ignited the fire from some position outside the house.  Is that the ‑ ‑ ‑

MR HEATON:   I do not remember it being expressly stated in that way but that is the effect, I guess.  If we turn to paragraph [391] ‑ ‑ ‑

BELL J:   Yes.

MR HEATON:   ‑ ‑ ‑ what his Honour Justice Morrison said there was that:

In my view, the obvious response is that the appellant was involved in distributing petrol which led to that explosion.

How it came to be ignited was not specifically articulated.  Indeed, this is, perhaps, an expression of his Honour’s – or, indeed, the court with their agreements – personal view of the evidence which is not strictly what was asked of them in terms of satisfying the test, or the principles, in M v The Queen which is why I say the answer to that analysis lies in the other parts of the judgment. 

This is an articulation of the conclusions that the court itself had come to.  But how it was ignited and where Mr Coughlan was at the time remains, to some extent, a mystery.  But it is not fatal to a case which otherwise points compellingly to his involvement ‑ however he managed to do it points compellingly to his involvement.

BELL J:   Does that mean it is not essential in the prosecution’s submission that the gaseous vapour was in fact petrol?

MR HEATON:   I guess it is difficult for me to make that submission because it was an important part of the case.  But whether it was petrol and something else or not perhaps is irrelevant.  The fact that petrol was found on his clothes and that petrol was smelled by neighbouring people points to that being the accelerant.  And the scientific evidence was, “What we are seeing here is consistent with something like petrol”.  So it would be difficult to then advance some other case other than that it was petrol.  But even still ‑ ‑ ‑

KIEFEL CJ:   If it were not for the factor of the petrol on his clothes, the Crown would not have a compelling case, would it, on the prosecution’s own argument?  It is the connection between that and the vapour – that is it, really.

MR HEATON:   It would be a weaker case.  But can I perhaps not concede no case because, in my submission, there are still circumstances in relation to his story which might properly be rejected by a jury, which might ‑ ‑ ‑

KIEFEL CJ:   But you do not have any objective evidence, really, without ‑ ‑ ‑

MR HEATON:   Well, then, we have got a house that exploded with him nearby ‑ ‑ ‑

KIEFEL CJ:   That is it.

MR HEATON:   ‑ ‑ ‑ and his fleeing the scene in circumstances ‑ ‑ ‑

KIEFEL CJ:   With a story about why.

MR HEATON:   Well, a story about why he was there, which includes the bike not being parked nearby.  Let us perhaps look at it in another way.  Were it not for the fact that this house exploded it might never have been known that he was even there.

KIEFEL CJ:   I do not know where that takes us.

MR HEATON:   The other aspects of the evidence, the fact that he had parked his car nearby, he had told his wife that he was somewhere other than where he was, the fact that his bike was parked away, and so anything that might link to him was away and not necessarily then available to be seen are aspects of a circumstantial case which suggests some premeditation in terms of his planning.

Sure it is the fact that the petrol that was found on his clothing links him to it, but it is not an indispensable link.  It is one piece of a circumstantial case which certainly adds some strength, but the other factors as well all have a part to play.

We have probably reached the end of what I can say about the nature of the case.  I guess the fundamental proposition upon which we respond to this appeal really comes back to what we say is a misapprehension of the proper nature of what this case was.  That it was a circumstantial case, that all of the evidence both by the jury and indeed by the Court of Appeal needed to be analysed as a collective and it was the combined force of all of the evidence which gave it its strength.

The process of reasoning that has been promoted by my learned friend in challenge to these verdicts invites this Court to essentially analyse each piece of the evidence in a piecemeal fashion, and we say contrary to principle.  So when the case is analysed as a whole, we say it was, come back to where I started, this was a circumstantial case of some strength.

The Court of Appeal’s analysis identified that strength, and analysed the strengths and weaknesses that were advanced in challenge to the verdicts during the body of the judgment, faithfully adhering to the principles in M v The Queen.  Those are our submissions.

KIEFEL CJ:   Thank you, Mr Heaton.  Do you have anything in reply, Mr Keim?

MR KEIM:   No matters of law, your Honour.

KIEFEL CJ:   The Court will adjourn to consider the course that it might take.

AT 12.25 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

KIEFEL CJ:   The Court is unanimously of the view that the appeal be allowed and that the decision of the Court of Appeal given on 16 April 2019 be set aside and in its place the following orders be made:

1.        The appeal be allowed.

2.The appellant’s convictions for arson and attempted fraud be quashed.

3.        A verdict of acquittal be entered.

Reasons will be published at a later date.

The Court will now adjourn to 9.30 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 12.31 PM THE MATTER WAS CONCLUDED