Director of Public Prosecutions v Gauci (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0050

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
MICHAEL GAUCI	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	2 December 2024
DATE OF RULING:	5 December 2024
CASE MAY BE CITED AS:	DPP v Gauci (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2024] VSC 742

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CRIMINAL LAW – Trial - Attempted murder – Evidence – Victim allegedly set fire by the accused after flammable liquid thrown on her and blowtorch lit - Findings by forensic officer of flammable substances in crime scene samples – Flammable liquids found in shed of accused – Opinion expressed by forensic officer as to cause of fire – CCTV footage showing accused picking up and walking away with blowtorch in kitchen of his house shortly before the fire – Similar looking blowtorch found in tray of his utility vehicle shortly after fire – Whether items of evidence relevant – Whether should be excluded pursuant to ss 135 or 137 – Evidence clearly relevant, and of substantial probative value – No danger of unfair prejudice – No basis for exclusion under ss 135 or 137 – Evidence admissible – Evidence Act 2008 ss 55, 56, 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Moran	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J Korn with Dr E Kelly	Lewenberg & Lewenberg

HIS HONOUR:
Introduction

The accused, who faces charges of attempted murder and other offences arising from an incident in which he allegedly set his neighbour, Shari Grey (‘Grey’), on fire, seeks the exclusion of a number of items of evidence proposed to be led in the prosecution case.
Facts
Background and lead-up to alleged offending
The accused lived with his partner, Blane Sarah (‘Sarah’) and two children at 11 Rivercoast Road, Werribee South. Grey, the primary alleged victim, a 32-year-old woman, lived in a unit adjoining the accused’s home, with three friends, Eta Pirangi, Steve Pirangi,[1] and Liam Dixon.
[1]Eta and Steve refer to Grey as their sister/sister-in-law, as her sister had been engaged to their brother, per Summary of Prosecution Opening, 23 May 2024, 1 [2] (‘SPO’).
The accused’s home address was fitted with a comprehensive CCTV system comprising 12 operational cameras situated around and inside the house and shed. The cameras were motion activated and recorded on a hard drive located in a cupboard at the top of the stairs within the house.
On the night of 27 December 2022, Eta Pirangi and Grey invited friends over to their unit for a gathering. A number of people gathered in the rear yard of the unit, making sufficient noise to cause concern to Sarah, who was at home with her children, while the accused attended a social function. At 11.42pm, Sarah sent a text message to the accused telling him the neighbours were being noisy. He replied that she should hang over the fence and tell them that she had small kids trying to sleep. Sarah then had a conversation over the fence with the group in the backyard of the unit, asking them to turn the music down. They did so, but Sarah remained unhappy. She called the accused at 11.51pm, and then appeared at the first-floor window of her home and yelled at the group to be quiet. Sarah and Grey exchanged words. At 11.55pm, Sarah again called the accused. She made further calls to him at 12.12am and 12.17am on 28 December 2022.
At 12.36am, the accused called Sarah while he was on his way home. Shortly after, the power to the CCTV system was switched off. At 12.44am, the accused’s car arrived home. Shortly afterwards, he left his home in a different vehicle, a Toyota Hilux dual cab utility.
Just after 1.00am, the power to the CCTV was turned back on, and at 1.21am, a CCTV camera in the kitchen of the house showed a carving knife and a yellow blowtorch laid out on the corner of the kitchen bench. At 1.26am, cameras showed the Hilux return to the address and park in the driveway. The accused returned inside the house. At 1.27am, a camera showed the accused use his phone torch to check the location of the knife and blowtorch on the kitchen bench before walking towards the master bedroom.
During this time, Grey, Eta Pirangi and two friends went for a swim at the beach, and then returned to the property at about 1.30am. They went into the backyard to have a drink and a cigarette. The group started playing music again, and singing along.
At 1.48am, a camera detected the accused emerging from the hall and approaching the kitchen bench. He picked up the knife, before putting it back down and picking up the blowtorch. He then walked towards the rear door of the house and out of view. Sarah emerged from the hall and walked in the direction in which the accused had disappeared, appearing to gesture and talk in his direction.
At 1.49.25am, Sarah went upstairs to where the CCTV hard drive was located. At 1.49.31am, the power to the CCTV system was turned off for a second time that night.
The incident
At 1.50am, the accused appeared over the boundary fence and aggressively initiated a verbal altercation with Grey, who identified herself as the person who had spoken earlier with Sarah. During the exchange, the accused repeatedly told Grey to come out the front to sort it out. Grey agreed and went inside to get changed.
Eta and Steve Pirangi and a friend, Stacey Morgan (‘Morgan’), went out the front into the street. The accused and Sarah also moved out the front of their property and stood in their driveway next to the gate, which was open. Steve Pirangi stepped forward and asked what was going on. The accused said, ‘Come closer’, and beckoned him forward. Steve Pirangi did not comply.
Grey came outside and walked past her friends. The accused said to Grey, ‘Come here’. She walked up to Sarah and stood in front of her. At this point, there was a physical altercation between Grey and Sarah.
The Crown allege that the accused then moved behind his front fence and came back carrying a bucket which he held with one hand. He moved towards Grey and threw the liquid from the bucket in an upwards motion, causing the liquid to come into contact with Grey’s upper body and face. Eta Pirangi estimated approximately a litre of liquid came into contact with Grey, and that it smelt something like petrol. Sarah pushed back away from Grey, who turned and started walking back towards her friends.
The accused, who was standing a short distance away, is then alleged to have ignited an item, described by Steve Pirangi as a blowtorch, which the accused was holding in his hand and pointing towards Grey, causing the item to emit a flame. Grey immediately caught fire. Her head and upper body were engulfed, with the flames reaching down to her thighs. She screamed and moved across the grass nature strip, falling to the ground. Her friends came to her assistance. Eta Pirangi stood between the accused and Grey to protect her from further attack. The accused pointed and waved the blowtorch towards him. The accused and Sarah then went back inside their property.
At about this time, the sound of a gunshot or firecracker (per the statement of Steve Pirangi) or loud bang (per the statements of Joe Ferlazzo, John Hebden, Leslie Hebden and Marigold Bartlett) was heard by several witnesses.[2]
[2]SPO (n 1), 6 [33].
Sarah made a call to 000 at 1.56am, providing her address, before being told by the accused to hang up. The accused, Sarah and the children then left the property in the Hilux.
Police investigation
Police attended the scene within minutes, and found Grey on the nature strip with serious burns. An ambulance arrived and Grey was transported to the Alfred Hospital, via helicopter, where she was treated for her injuries, which were described as acute and life-threatening. She sustained full-thickness burns from her face down to her upper thighs to 80 per cent of her body surface, as well as other serious injuries and complications. She was admitted to the Intensive Care Unit and later to the Burns Unit, where she remained for many months, undergoing extensive and repeated surgical and medical interventions. An update on Grey’s current condition will be provided prior to the start of the trial.
As a result of their efforts to assist Grey, Steve Pirangi and Morgan also sustained burns, which required treatment by way of a week-long hospital admission, and though a General Practitioner, respectively.
The accused drove his Hilux to the car park of the Werribee Police Station where he was arrested at 2.11am. In the rear of the utility the police found items including a yellow blowtorch and a blue bucket. In the front cabin, a sawn-off, loaded .22 calibre rifle was also found.
DNA was found on the rifle, blowtorch and bucket, consistent with being the DNA of the accused, with a high degree of statistical support.
Scene examination by John Kelleher
John Kelleher, a forensic officer from the Victoria Police Forensic Services Unit, Fire and Explosion Unit, with expertise in the examination of fire and explosion scenes and relevant exhibits, attended the Werribee Police Station on 22 December 2022 and swabbed the hands of the accused and Sarah for flammable liquids. None were detected. He then examined the scene at Rivercoast Road and collected various items and samples from the nature strip. These included partly burned clothing, soil and grass samples.
A Victoria Police Crime Scene Examiner, Leading Senior Constable Hai-Teng Lim (‘Lim’), also examined the nature strip on 28 December 2022. She collected various items including burnt fabric fragments and a larger piece of burnt fabric, all of which were handed to Kelleher later that day.
Also on 28 December 2022, police conducted a search of a large shed at the rear of 11 Rivercoast Road. A number of containers of petrol and other possible accelerants were observed in the shed, including a sealed ‘Prepwash’ container.[3]
[3]Prepwash is a solvent used to clean surfaces of grease, wax, oil, tar and other substances.
On his return to the scene at Rivercoast Road on 30 December 2022, Kelleher’s attention was drawn, by some apparently dead and dying areas of grass on the nature strip close to the gate into number 11, to two areas of the nature strip not previously closely examined. He collected further samples of soil and grass.

In his examination of the various samples collected, Kelleher observed a number of examples of flammable material. In extracts of the partly burned clothing collected by him and Lim, he found trimethyl benzene, decane and undecane (medium petroleum distillate). In one of the soil samples, he found low level hydrocarbons, trimethyl benzene and tetramethylbenzene. In one of the grass extracts, his analysis revealed the presence of the possible fuel component trimethylbenzene. His analysis of a sample of the fluid in a container labelled ‘Prepwash’ found in the shed revealed the presence of substances including trimethylbenzene, nonane, decane and undecane. Testing on the fluid found in the blue bucket revealed the presence of low level hydrocarbon residues and possible medium petroleum distillate, with the bulk of the fluid comprising oleic acid with some palmitic acid.

In setting out his conclusions, Kelleher stated:

The cause of the fire was the ignition of the victim’s clothing, assisted by the presence of a flammable liquid identified as ‘Prepwash’. Residues of moderately evaporated Prepwash were detected on the clothing. Prepwash is a combination of a light petroleum distillate and a medium petroleum distillate. A sample of Prepwash was obtained from a container in the garage of 11 Rivercoast Road.
Residues of a medium petroleum distillate were detected on soil from the nature strip and were tentatively identified in a blue bucket recovered from the scene. The blue bucket was found to contain traces of both oleic acid and palmitic acid, in high and low proportions respectively. Such a combination of acids might be found in olive oil or similar products. Oleic acid and palmitic acids are both found in sweat, but in the hand swabs examined, palmitic acid was present in larger amounts. Oleic acid was detected on the grass from the nature strip, the (sic) partly burnt clothing from the nature strip.
The source of ignition was not determined. There were no obvious sources of accidental ignition on the nature strip. A blowtorch was recovered from the scene. This was not examined, but a blowtorch is capable of igniting Prepwash or any other flammable liquid.[4]

[4]Depositions Version 1, 2 May 2024, 268-269 (Statement of John Kelleher, 9 January 2023) (‘Depositions’).

Background to this ruling

In the defence response, it was indicated that the defence would challenge the admissibility of the CCTV footage showing the accused holding a blowtorch, the finding of flammable liquids in the shed, and much of the evidence of Kelleher.

Consistent with that, in the lead-up to the hearing of pre-trial issues in this case, the defence filed written submissions disputing the admissibility of a number of items of evidence. These were:

a)the flammable liquids described in paragraphs 53(b)-(c) and 64(a)-(e)[5] of the Opening;
b)the blowtorch seen in CCTV, cited in paragraphs 21, 23 and 25 of the Opening; and
c)the cartridges referred to in paragraph 53(e) of the Opening.[6]

[5]The written submissions indicated 64(a)-(d) in a number of locations. This was amended to show (a)–(e) during the hearing, at Transcript of Proceedings, 2 December 2024, 5-6 (‘Transcript 2 December 2024’).

[6]Defence Submissions on Evidence Admissibility, 22 September 2024, 2 [6] (‘Defence Written Submissions’).

The written submission then advanced, in detail to which I will shortly turn, the reasons why all of the challenged evidence was either not relevant, or if relevant, should nevertheless be excluded pursuant to s 135 or s 137 of the Evidence Act 2008 (‘the Act’).

In keeping with the scope of the written submissions, two days were set aside for the pre-trial hearing. When this matter was mentioned before me on 22 November 2024, it was indicated on behalf of the prosecution that Kelleher would be called during the hearing, in light of the fact he had made a further statement since the committal hearing.[7] Defence counsel confirmed that the matter may occupy the two days allocated.
[7]Dated 15 October 2024, and attached to a Notice of Additional Evidence of the same date.

On 29 November 2024, the defence indicated by email that they no longer required Kelleher to be called in the pre-trial hearing. Upon the commencement of the hearing on 2 December 2024, Mr Korn, who appeared with Dr Kelly for the accused, confirmed that position, and further indicated that, although he still sought the exclusion of the evidence outlined in [28], he would rely on the written submissions, and make no oral submissions before me. In seeming contradiction of the ongoing endeavour to have the evidence excluded, Mr Korn, having been confronted with some evidence which would counter one aspect of the written submission on admissibility, stated:

We take the view, having considered the matter, that…because of the evidence, these are matters to be dealt with at trial. And without in any way conceding the question that’s before your Honour, we understand that the matters are more likely to be dealt with in a trial.[8]

[8]Transcript 2 December 2024 (n 5) 7.

When reminded of the evidence that Steve Pirangi observed the accused with a blowtorch at the time of the attack, and asked whether in those circumstances the observation on the CCTV footage of the accused picking up a blowtorch shortly before the attack, and the finding of a blowtorch in the tray of his utility shortly after the attack, could be seen as anything other than highly significant items of circumstantial evidence, Mr Korn stated:

There’s thought in what your Honour says, and our position is we don’t concede the matter because we start from the premise that we say we never had a blowtorch at all and that’s a matter to be dealt with at trial in terms of cross-examining particularly Mr Steve Pirangi. So we understand you Honour might understand our position, I don’t propose to speak further and make further submissions other than what we’ve said. We don’t concede the matter, but if I can be blunt, we probably take a realistic view as to your Honour’s approach to the matter.[9]

[9]Transcript 2 December 2024 (n 5) 8.

I point out in respect of the last matter that, to that point in the hearing, I had given no indication whatsoever of any preliminary view I might hold on the matter of the admissibility of the evidence in question.

Mr Korn indicated, in response to a question from me, that the expertise of Kelleher was not challenged at the committal hearing, and would not be challenged at trial.

Defence written submissions

Early on in the written submissions, it was argued:

The expert evidence of Forensic Officer John Kelleher is critical to the Crown’s case, in respect of the use of an accelerant in the manner alleged and to the ignition of the accelerant. No other prosecution witness can establish these facts to the requisite standard. [10]

[10]Defence Written Submissions (n 6) 1 [4].

The written submission dealt in some detail with the matter of relevance, the operation of sections 135 and 137 of the Act, and the principles underlying the admissibility of expert opinion evidence.

In respect of the evidence of Kelleher concerning the fluid remnants found in the blue bucket, the fact of Kelleher having conceded that the mix of chemicals detected in the bucket was not flammable was emphasised. As for the finding of accelerant on the clothing remnants found at the scene, it was submitted that the scientist had found ‘medium petroleum distillate’, not Prepwash.

Thus, it was submitted, neither Kelleher’s tentative identification of hydrocarbon residue in the bucket as ‘possibly medium petroleum distillate’, nor the evidence of the finding of a can of Prepwash in the shed, could:

a)rationally affect the assessment of the probability of whether the accused threw Prepwash, accelerant, or any flammable liquid towards the complainant; or
b)reliably ground any expert opinion that Prepwash was the source of any medium petroleum distillate located on the complainant’s clothes or in a soil sample taken from the nature strip area where the complainant was located by first responders.[11]

[11]Defence Written Submissions (n 6) 6 [25] (emphasis in original).

Further, it was submitted that were the jury to be presented with an ‘expert’ opinion that Prepwash contributed to the fire, the finding of a container of Prepwash in the shed would necessarily occasion significant prejudice, which I took to mean, ‘unfair prejudice’, to the accused. Illogical though it might be, so it was submitted, that liquid which could not have been thrown from a bucket in a flammable form somehow became flammable upon impact, lay jurors would be sorely tempted to ignore science and work on the unsafe supposition that because the accelerant on Grey’s clothing matched a product found in the shed, the accused must have thrown that substance at the victim.

As such, it was submitted that the evidence of Kelleher as to his opinion concerning the cause of the fire and the identification of the substances found on the burnt clothing, in the garage, in the soil from the nature strip, and in the bucket, should be excluded, as the evidence is irrelevant, is not expert evidence, and if admitted, would create a real risk of unfair prejudice to the accused.

In respect of the blowtorch evidence, the written submissions asserted that in seeking to advance the allegation that the accused used a blowtorch to ignite the accelerant on the complainant, the prosecution relied upon the CCTV footage showing the accused picking up the blowtorch on the kitchen bench (‘the kitchen blowtorch’), and the blowtorch subsequently found in the rear tray of the accused’s vehicle (‘the vehicle blowtorch’).

It was submitted that there is no evidence that the kitchen blowtorch and the vehicle blowtorch are the same item. It was further submitted that there are substantial difficulties with the allegation that any blowtorch was used to ignite an accelerant on Grey and her clothing. In that regard, it was pointed out that:

· there is no evidence that the vehicle blowtorch was ever operable;

· Kelleher did not examine any blowtorch and did not determine the vehicle blowtorch, or any other item, to be the source of ignition, and identified a host of other potential ignition sources at the committal; and

· eyewitness evidence as to the description of the flame source was inconsistent.

In those circumstances, it was submitted that the CCTV evidence of the kitchen blowtorch cannot rationally affect the probability of the existence of the fact in issue whether the accused used that item, or any other blowtorch, to ignite accelerant on the complainant and her clothes.

In the alternative, it was submitted that even if relevant, the blowtorch evidence should be excluded because the danger of unfair prejudice it would engender would outweigh the probative value it may command, because there would be a:

serious and incurable risk that a jury would improperly assume that the kitchen blowtorch… is the same as the vehicle blowtorch which is alleged by the prosecution (without basis) to be the ‘blowtorch’ used by the accused as the source of ignition.[12]
[12]Defence Written Submissions (n 6) [33] (emphasis in original).

Prosecution written submissions

Ms Moran, who appears for the prosecution, relied principally on the written Prosecution Pre-trial Submissions, dated 25 October 2024.[13]
[13]Originally entitled ‘Summary of Prosecution Opening for Trial’, but amended at the hearing, per Transcript 2 December 2024 (n 5) 12.

In the written submissions, it was contended that the defence written submissions contain material errors of fact brought about by selective reliance upon some answers of Kelleher at the committal, without due regard to his expert opinion evidence, or other relevant evidence in the case.

The content of Kelleher’s first statement was summarised, and it was pointed out that Kelleher did not resile from any of his opinions or other evidence during the committal.

In respect of the defence analysis of the question of relevance, it was submitted that a key aspect of the test, represented by the words, ‘if it were accepted’ in s 55(1), had been entirely overlooked in the defence submissions. The relevance of evidence must be assessed on the assumption that the jury will accept it, that is, by taking the Crown case at its highest. All of the challenged evidence is clearly relevant in a case where it is alleged by the prosecution, and disputed by the accused, that he threw accelerant over the victim and intentionally ignited a flame with a blowtorch in order to set her on fire, it was submitted.

The purported defence challenge to the expert evidence of Kelleher has no bearing on the relevance of his evidence, but rather, is a matter for cross-examination, it was submitted.

As for any risk of unfair prejudice, the Crown submitted that there is no risk that a jury would misuse the evidence in an unfair way. Rather, the evidence simply commands legitimate probative value. The evidence of Kelleher and the blowtorch evidence from the CCTV footage, as well as the subsequent search of the utility, would strongly advance the prosecution case that the accused deliberately threw an accelerant over Grey and set her alight with a blowtorch. The CCTV footage, in particular, goes to intent, planning, and the mechanism by which the alleged offence was committed.

The prosecution submitted that the defence submissions at [4][14] misstated the relevant evidence to which the jury could have regard in assessing whether the accused threw accelerant over the victim and intentionally set her alight. Entirely ignored in the defence submissions on this point were the observations of the eye witnesses, the fact that the complainant did, in fact, catch fire, the kitchen CCTV footage, the presence of Prepwash in the accused’s shed, and the recovery of a blowtorch in his vehicle shortly after the events in question.
[14]Outlined at [35] of this ruling.

In her brief oral submissions before me, Ms Moran noted the significance of the decision in IMM v The Queen[15] in the assessment of the relevance and extent of the probative value of evidence, and otherwise relied on her written submissions.
[15](2016) 257 CLR 300 (‘IMM’).

Law

Section 55(1) of the Act provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 56 of the Act provides:
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
Section 135 of the Act relevantly provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a)       be unfairly prejudicial to a party; or
(b)       be misleading or confusing; or
(c)       cause or result in undue waste of time;
…
Section 137 of the Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Probative value is defined in Schedule 2, Part 1 of the Dictionary to the Act as meaning:
the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Analysis
I commence by noting that detailed arguments were not advance before me on the question of the admissibility of the firing of the gun by the accused, and the finding of the spent cartridge case and live rounds in the accused’s premises. Ms Moran suggested that this issue would be best resolved closer to the trial when the position of the accused is better understood. In my view, in light of the opaque nature of the defence of the accused considering the contents of the Defence Response, I agree with Ms Moran.
The definition of relevance in section 55 is very wide.[16] The Australian Law Reform Commission (‘ALRC’) explained the rationale for the proposal on which the provision was based as follows:
The definition requires a minimal logical connection between the evidence and the ‘fact in issue’. In terms of probability, relevant evidence need not render a ‘fact in issue’ probable, or ‘sufficiently probable’ – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence – ie- it ‘affects the probability’. The definition requires the judge to ask ‘could’ the evidence, if accepted, affect the probabilities. Thus, when a judge is in doubt whether a logical connection exists between a fact asserted by the evidence and a ‘fact in issue’, he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. An indirect connection with a matter in issue is sufficient…[17]
[16]R v Le [2000] NSWCCA 49 [19] (Sully J).
[17]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, [641].
There has been conjecture whether the test of relevance in s 55 lowered the common law requirement for relevance. This is seemingly not the case. As the High Court indicated in footnote 4 of the decision of Washer v The State of Western Australia,[18] the definition contained in the provision ‘reflects the common law’.[19] Having said that, it is, on any view, a broad definition, which has been given a broad interpretation by the courts. As has been recognised, the use of the word ‘could’ rather than ‘would’, and the recognition of indirect connection with a fact in issue, should be noted.
[18](2007) 234 CLR 492; [2007] HCA 48.
[19]The report of the decision in the Commonwealth Law Reports does not have the same footnotes. The decision as reported in the High Court version and in the Australian Law Journal Reports is as I have stated at (n 18).
It is clear that the bar of relevance is not a high one. And once it is surpassed, the evidence is admissible, subject to the application of an exclusionary rule, exclusion under s 137, or exclusion pursuant to a discretion provided under the Act. Evidence does not need to possess probative value to any particular extent to be relevant. As stated by the Court in IMM:
Neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.[20]
[20]IMM (n 15) [40].

Considering the breadth of the definition of relevance, and the relatively low bar therefore constituted by the terms of s 55 of the Act, it is unsurprising that Mr Korn did not seek to support, in oral submissions before me, the contentions advanced somewhat optimistically in the written submissions. That he did not concede the admissibility of the challenged evidence before me may be a result of the confusion the written submissions suggest between the status of the instructions counsel have received, on the one hand, and the objective quality of the evidence, on the other.

Before dealing further with the defence written submissions, I will make some mention of the contention advance in [4] of the submissions, set out above at [35].

Whilst I do not seek to minimise the importance of the evidence of Kelleher, the prosecution case relies upon much more than simply his evidence in seeking to prove that the accused threw an accelerant onto Grey and then set her alight, as the submissions of Ms Moran reveal. Several eyewitnesses saw and heard the accused, who had only minutes earlier repeatedly asked Grey to come out the front of the residences to sort out the matter, deliberately throw some liquid from a bucket or other container over Grey, saw him light a flame source, identified by one witness as a blowtorch, and then observed Grey immediately become engulfed in fire. Only minutes earlier, the CCTV footage showed the accused picking up a blowtorch from the kitchen bench and walking away with it. A similar blowtorch was found in the rear of the accused’s utility minutes after the events in question. Even without the evidence of Kelleher, there is ample evidence, depending on a jury’s view of the evidence, to warrant a conclusion that the accused must have thrown an accelerant of some sort, and must have ignited it.

All of the challenged evidence of Kelleher is relevant to facts in issue in this case. The Crown alleges that the accused threw an accelerant over Grey before setting her alight. The findings in respect of the various samples taken from the fire scene and from inside the shed led an appropriately qualified, and indeed, very experienced scientific expert, to express an important central opinion that, ‘The cause of the fire was the ignition of the victim’s clothing, assisted by the presence of a flammable liquid identified as ‘Prepwash’’. That opinion, and the contributory findings of Kelleher set out on pages 6 and 7 of his first statement, have so far gone entirely unchallenged, as has his expertise to provide the evidence.

Insofar as the defence submissions place great reliance on the contention that Kelleher’s evidence at the committal was that ‘the mix of chemicals detected in the blue bucket was not flammable’, that, respectfully, is to take a couple of answers of the witness out of the context of the entirety of his evidence.

In his evidence, Kelleher made it clear that the low level hydrocarbon residues and possible medium petroleum distillate were in small quantities relative to the overall mix, which was mainly oleic acid. Several aspects of the Annexure attached to Kelleher’s first statement indicate the prospect of evaporation or other dissipation of volatile or flammable substances.

In the portion of transcript of the evidence of Kelleher upon which such great reliance was placed by the defence, the following exchange occurred in relation to the substances found in the bucket:

More likely that they are mixed together in some manner?---Well with things like that they are essentially mixable because they’re all hydrocarbon based. They mix together very well, and it would be difficult for them to stay apart in the bucket.
Looking at that mix, is that a good accelerant mix?---Well it’s not really an accelerant mix.
No?---Because as it was, as it was at the time I examined it, it’s oleic acid and palmitic acid.
Yes?---And while that’s combustible it’s not exactly a flammable liquid. What would make it a flammable liquid is the medium petroleum distillate. But there wasn’t enough of that there at the time that I examined it to say that it was a flammable liquid.[21]

[21]Depositions (n 4) 851 (Transcript of Committal Hearing, 7 March 2024) (emphasis added).

The defence contentions about the findings in respect of the liquid residue found in the bucket seem to presuppose that those findings are illustrative of what was contained in the bucket before its contents were allegedly thrown over the complainant. On the available evidence, there is no reason why that proposition would be accepted.

Turning to the CCTV evidence showing the accused picking up and walking away with a yellow blowtorch only minutes before Grey was allegedly set alight by him using a blowtorch, and the finding of a similar looking blowtorch in the tray of his utility only minutes after the fire was started, it is, I feel I must say, very difficult to see how it could seriously be argued that these items of evidence are not relevant, and indeed, of very substantial probative value.

In respect of the defence contention that there is no evidence that the kitchen blowtorch and the vehicle blowtorch are the same item, that contention completely ignores the place of those items of evidence in the overall direct and circumstantial case against the accused, and pays no regard at all to the process of inferential reasoning in which a jury, faced with this evidence, would be perfectly entitled to engage.

There is no doubt at all that the two aspects of the blowtorch evidence are relevant, and indeed, of very substantial probative value.

As for the suggestion that, if relevant, the evidence should be excluded because there would be a serious and incurable risk that the jury would improperly assume the kitchen blowtorch and the vehicle blowtorch were one and the same, I reject that contention. First, I do not consider there is any such risk. A jury will well understand that they are not entitled to speculate or assume. For a jury to conclude that the two blowtorches were one and the same could not properly be described as an ‘assumption’. Rather, depending on the view the jury took of the evidence, it would amount to no more than the reaching of a perfectly valid conclusion based on proven facts, in the context of the entirety of the evidence in the case.

In my view, there could be no call to exclude this evidence.

Conclusion

All of the challenged evidence comfortably passes the test of relevance. I am not satisfied that it would be appropriate for any of the evidence to be excluded in the exercise of my discretion pursuant to s 135 of the Act. Nor am I satisfied that any of the evidence should be excluded as a matter of law pursuant to s 137 of the Act.

[2024] VSC 742

5 December 2024