Director of Public Prosecutions v Manson
[2022] VCC 1058
•11 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01362
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| JASON MANSON | Defence |
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JUDGE: | His Honour Judge Mullaly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2022; 6 June 2022 and 7 June 2022 | |
DATE OF JUDGMENT: | 11 July 2022 | |
CASE MAY BE CITED AS: | DPP v Manson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1058 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW – Special Hearing by Judge Alone
Catchwords: Arson – Finding of Unfitness – Defence of Mental Impairment – Expert Evidence – Accidental Cause – Fires Deliberately Lit – Intent.
Legislation Cited: Crimes Act 1958 (Vic) ss 197(1) and 197(6); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 14F and 94(1); Juries Act 2000 (Vic); Jury Directions Act 2015 (Vic); Mental Health Act 2014 (Vic).
Cases Cited: Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182; R v Stiles (1990) 50 A Crim R 13; R v Munze (No 2) [2020] VSC 48; Douglass v R (2012) 290 ALR 699; R v Smith [1999] NSWCCA 126.
Judgment: Finding set out in s 17(1)(c) of the Act – the accused committed the offence charged.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Gray | Office of Public Prosecutions |
| For the Defence | Mr S. Collins | Victorian Legal Aid |
HIS HONOUR:
PART A: PRELIMINARY AND PROCEDURAL MATTERS INCLUDING PRINCIPLES OF LAW
Introduction
1The accused, Jason Manson was charged on Indictment L11668234 with one charge of arson contrary to ss 197(1) and 197(6) of the Crimes Act 1958 (Vic) (‘Crimes Act’).
2The single charge arises from events said to have taken place at a motel room in Golden Square, a suburb of Bendigo, on the 13 of July 2020.
3I will elaborate on all the evidence, but in order to establish the broad context, I will very briefly outline the history of the case and what the case is about.
4The structure of this judgment will be:
Part A: Preliminary and Procedural Matters Including Principles of Law
Part B: Analysis of the Evidence
Part C: The Arguments of Counsel
Part D: Findings of Fact
Part E: Verdict
Finding of Unfitness by the Court
5The accused was arrested on 13 July 2020. However those involved in his arrest considered his mental state was such that he needed to be taken to the local hospital pursuant to the provisions of the Mental Health Act 2014 (Vic). During his remand, while awaiting trial, he was under psychiatric care in a prison or of late at Thomas Embling Hospital. The accused has a lengthy psychiatric history.
6All this led to consideration of whether there was a was a real and substantial question as to the fitness of the accused to stand trial pursuant to s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’). On 11 February 2022, after an investigation into the fitness of the accused to stand trial, I found that the accused was not fit to stand trial and determined that the accused was not likely to become fit within the next 12 months.[1] The matter was adjourned for the Special Hearing, pursuant to Part 3 ss 15-19 the Act to commence on 2 May 2022. Throughout this time and for a number of directions hearings, the accused man represented himself. In the days leading up to the 2 May 2022, before the special hearing was to commence, the accused sought legal representation which was ably provided by Victoria Legal Aid.
[1] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 14C, 14D and 14F(5)
Application for Special Hearing by Judge Alone without a Jury
7On the 28 April 2022, the prosecution made an application for the special hearing to be conducted by judge alone, without a jury, pursuant to section 94(1) of the Act. The necessary criteria under s 94 were met: the alleged offence is an offence under the law of Victoria; it is in the interests of justice to make the order; and the pandemic declaration is in force.[2] The application was heard “on the papers”. The application was supported by the legal representative of the accused.[3] I granted the prosecution’s application on 29 April 2022. Thus the matter proceeded as a Judge Alone hearing with the accused represented by Mr Collins. The prosecutor was Mr Gray.
[2] Ibid, ss 94(1) and 94(2).
[3] Ibid, s 94(3).
Preliminary Matters
8The three findings that are available to a jury at a special hearing pursuant to section 17(1) are available to a judge at a special hearing by judge alone.[4] They are:
(a) not guilty of the offence charged;[5]
(b) not guilty of the offence because of mental impairment;[6]
(c) the accused committed the offence charged or an offence available as an alternative.[7]
[4] Ibid, s 96(1).
[5] Ibid, s 17(1)(a)
[6] Ibid, s 17(1)(b).
[7] Ibid, s 17(1)(c).
9A finding under section 17(1), made by a judge at a special hearing by judge alone has, for all purposes, the same effect as if it had been made by a jury.[8]
[8] Ibid, s 96(3).
10Different standards of proof apply to the finding that the accused is not guilty of the offence because of mental impairment,[9] and to the finding the accused committed the offence charged or an offence available as an alternative.[10]
[9] Ibid, s 17(1)(b).
[10] Ibid, s 17(1)(c).
11The question whether a person was suffering from a mental impairment is to be determined by the judge on the balance of probabilities.[11] To make a finding, pursuant to section 17(1)(c), that the accused committed the offence charged or an offence available as an alternative, the judge must be satisfied beyond reasonable doubt.[12] In the event of either finding, the judge must either declare that the person is liable to supervision under Part 5 of the Act or order the person to be released unconditionally.[13]
[11] Ibid, s 99.
[12] Ibid, s 96(2).
[13] Ibid, ss 23 and 98.
Defence of Mental Impairment
12I must briefly raise the issue of mental impairment as that is a finding available pursuant to s 17(1)(b) and as noted the evidence was that the accused man was upon arrest, taken to a hospital as an involuntary patient pursuant to the Mental Health Act 2014 (Vic). Pursuant to s 20 of the Act, the defence of mental impairment is established if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that he did not know the nature and quality of the conduct; or he did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.[14]
[14] Ibid, s 20(2)
13A person is presumed not to have been suffering from a mental impairment until the contrary is proved.[15] Whether a person was suffering from a mental impairment is a question of fact.[16] The party raising the defence of mental impairment bears the onus of rebutting the presumption of sanity.[17]
[15] Ibid, s 21(1).
[16] Ibid, s 21(2)(a).
[17] Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(3).
14The defence of mental impairment was not raised by the prosecution or defence in this particular case. Notwithstanding that the accused was taken from the scene to hospital as an involuntary patient pursuant to the Mental Health Act 2014 (Vic), it seems for tactical reasons neither party put forward any evidence that the accused was, or probably was, mentally impaired at the time of the fire. This approach operated as a constraint on the findings available. There is some assistance provided in other Supreme Court cases as to the implications of proceeding in the way this case proceeded.
15In R v Stiles,[18] the Court of Appeal stated that when deciding whether the prosecution has proved its case, the jury must assume that the accused was of sound mind. This approach was adopted in R v Munze (No 2),[19] a recently decided case like this one, where a Special Hearing was heard by a judge alone.
[18] R v Stiles (1990) 50 A Crim R 13.
[19] [2020] VSC 48 [164] per Taylor J.
16Accordingly, I should not consider any evidence of mental illness when determining whether the elements of the offence have been proven. Consequently, if evidence of mental illness provides the only reason for doubting that the accused had the requisite mental state, he or she should either be convicted or found not guilty because of mental impairment, depending on whether the requirements of the defence are established on the balance of probabilities.
17The absence of any probative evidence going to the issue of Mr Manson’s mental state, in terms of a mental impairment, means that the finding on the balance of probabilities that Mr Manson is not guilty of arson by reason of mental impairment is not a finding that is open, and I put such a finding to one side.
Special Hearing by Judge Alone
(a) The Issues in Dispute
18In this case the special hearing by judge alone commenced before me on 2 May 2022. Mr Manson was, pursuant to s 16(2)(a) of the Act, taken to have pleaded not guilty to the charge of arson.
19The crime of arson as set out in s 197(1) and (6) of the Crimes Act is made up of four elements each of which the prosecution must prove beyond reasonable doubt. They are:
(a) The accused damaged or destroyed property by fire; and
(b) The property belonged to another person; and
(c) The accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of his or her actions; and
(d) The accused had no lawful excuse for damaging or destroying the property.20Following the opening of the case by the prosecution, and in particular the defence response to the opening, it became clear that there was no issue in this hearing that there was a fire in room 2 of the Golden Hills Motel on Marong Road Golden Square on 13 July 2020, and that Mr Manson was the occupant of that room, and in the room at the time of the fire. It was not in dispute that the fire caused damage. Likewise, there was no issue that the property that was damaged by the fire, belonged to another being the owner of the motel, Mark Henderson.
21What was made clear by the parties was that the issue in the trial or the question to be answered was whether the prosecution had proved beyond reasonable doubt that the accused lit the fire. In meeting this onus the prosecution had to eliminate, as not reasonable, any inference that the fire was possibly accidental.
22A second issue was whether the prosecution had proved beyond reasonable doubt that if the accused caused the fire that he did so with the requisite intent.
23Finally, it was made clear that if the accused did in fact light the fire that he did not have some lawful excuse.
24Thus, with respect to the elements of the offence of arson, the prosecution was only required to prove beyond reasonable doubt 2 of the elements, being those set out above in paragraph [18] subparagraphs (a) and (c). I will refer to these as elements 1 and 3.
25The prosecution case in establishing the elements 1 and 3 to the criminal standard was that from the expert evidence, the CCTV footage and to a degree the civilian evidence, there was more than one fire in the room over the course of the night. This made the inference that the fires were deliberately lit irresistible as opposed to an ongoing accidental fire that simmered and reignited or a series of coincidental accidental ignitions and fires. Further the prosecution contended that the number of fires and the ultimate barricading of the door makes the inference that the accused deliberately lit the fires the only reasonable inference to be drawn from all the evidence.
26The defence contentions were that the prosecution had not proved beyond reasonable doubt elements 1 and 3. It was submitted there was an inadequate expert investigation that flowed from prejudgment that, as there was a fire and Mr Manson was the suspect and had been placed under a Mental Health Act order, the fire must have been deliberately lit by him. Indeed, the presumption of a deliberately lit fire meant unsurprisingly that the inadequate investigation did not find any obvious accidental cause. In short it was suggested this was because the investigation did not look hard enough or with an open mind. It was further contended that the civilian observations and the CCTV footage and the analysis of the particular fire sites in the room did not lead inevitably to a conclusion of separate fires lit at separate times, but it was reasonable to infer there was one accidental fire that died down and kept reigniting and then spreading to other parts of the room until there was the significant fire.
27It was further contended that a criminal state of mind could not be inferred from all the evidence.
28I intend to deal with the evidence and the inferences to be drawn from the evidence in the context of the way the parties approached the issues in the hearing.
29However before dealing with the evidence, I will turn first to some of the directions that I must give and follow in the determination of the central questions in this case.
(b) General Directions
30In a special hearing by judge alone the judgment must include the principles of law applied by the judge and the facts on which the judge relied.[20]
[20] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 97.
31Section 4A of the Jury Directions Act 2015 (Vic) (‘the JDA’) applies to a special hearing by judge alone.[21] This means that the court's reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 of the JDA makes provision — must be consistent with how a jury would be directed in accordance with the JDA and must not accept, rely on or adopt — a statement or suggestion that the JDA prohibits a trial judge from making or a direction that the JDA prohibits a trial judge from giving.
[21] Ibid, s 101.
32In other words, in so far as directions are concerned, a special hearing by judge alone must operate as a special hearing or trial would operate before a jury.
33In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.[22]
[22] Criminal Procedure Act 2009 (Vic), s 420E.
34As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must then deliver a verdict according to the evidence and nothing but the evidence.
35In accordance with Part 7 of the JDA I am required to direct myself, and I have so directed myself, in accordance with the fundamental, general directions that apply in all criminal trials.
36Accordingly, first and foremost, I have applied the principle that the accused comes before this Court presumed to be innocent. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
37Next, I have kept well in mind that the prosecution bears the onus at all times of proving that the accused committed the offence. The accused does not have to prove that he did not commit the offence.
38I have directed myself that the standard of proof is proof beyond reasonable doubt. This is the highest standard of proof known to the law. It is, as the High Court said, an “exacting standard”.[23] Anything short of proof beyond reasonable doubt must lead to the accused being found not guilty. The prosecution do not have to prove every fact to this standard. All that must be proved beyond reasonable doubt is the elements that go to make up the charges.
[23] Douglass v R (2012) 290 ALR 699, 711.
39I must decide the case solely on the evidence I have seen and heard in this special hearing; that is, what the witnesses have said under oath or affirmation in answer to questions, the exhibits that have been produced and the agreed evidence. This ordinarily straight forward direction has added importance in this case given that Mr Manson made some unexpected statements or outbursts from the dock during the course of the hearing. I am grateful to counsel for Mr Manson for helpfully referring me to the NSW decision of R v Smith,[24] that provides guidance in such situations. The key point to be understood from the decision in Smith is that I need to direct myself and ensure that I ignore what Mr Manson said from the dock. What he said is not evidence and does not assume that categorisation at any point. I have simply put the whole episode regarding what Mr Manson said out of my mind and ensured it played no part in my consideration of the issues or in my determination of those issues in dispute.
[24] [1999] NSWCCA 126.
40I might add in here a direction sought by Counsel, that is not a general direction but arises from s 41 JDA, and that is a direction that it remains the prosecutor’s obligation to prove that the accused committed the offence and the accused is not required to give evidence or call witnesses. The fact the accused does not give evidence cannot be used against him. The fact that the accused does not give evidence plays no role whatsoever in my deliberations and considerations of all the evidence.
41I must decide the case by the application of a rigorous, intellectual, open-minded analysis of all the evidence. There is no place for sympathy or bias or prejudice. That is important in this case. I have been vigilant to ensure there has been no emotional reaction or prejudice against the accused, in particular as I was presiding judge in the judge alone proceedings that determined that Mr Manson was unfit to be tried and I have managed Mr Manson’s case for some time while he has been unrepresented.
42I must assess the witnesses who gave the evidence and determine whether a witness was honest and credible, accurate and reliable. I may accept all, some or none of the evidence of any witness.
43There is a further general direction that is particularly important in this case given it is a circumstantial case. The direction relates to how I am to deal with drawing inferences from all the circumstances.
44As the prosecution case is a circumstantial one I direct myself and apply the directions governing circumstantial evidence and the drawing of inferences. I will consider all the evidence and only draw inferences that are reasonable on all the evidence. I will not guess or speculate or jump to conclusions or ignore an inconvenient fact if it does not fit with the conclusion. I will keep an open mind and consider all the evidence.
45Further and importantly, I must not draw an inference as to the existence of an element of the crime charged unless I am satisfied beyond reasonable doubt of any facts necessary to the process of reasoning involved, and am satisfied also that the inference is the only reasonable inference to be drawn from those facts.
46I must not draw an inference adverse to the accused if there is a reasonable alternative hypothesis consistent with innocence. It is not for the accused to establish a reasonable alternative hypothesis; it remains for the prosecution to exclude the alternative by establishing on all the evidence that the alternative is not reasonable.
47As this hearing centres on expert evidence, I have directed myself and applied that the experts are able to express opinions. Like any evidence I can accept all, some, or none of the expert witnesses’ evidence. Of importance is considering whether to accept the expert evidence and the weight to give to it.
48I have considered the witnesses’ qualifications, the way they expressed their opinions, and how they responded to cross-examination. I have considered whether the witnesses appeared objective, or whether he seemed biased and overstated the evidence.
49I have examined the quality of the reasons offered for the opinions, and the facts that support the opinions. I have kept well in mind that if I cannot resolve a dispute in the opinions, I will give the benefit of any doubt to the accused. Likewise, I will ensure that I have good reasons before I would reject the opinion of an expert.
PART B: EVIDENCE
(a) Introduction
50The oral evidence called in the hearing was from:
· two civilians, Mark Henderson, the owner of the motel, and James Rice a guest on 13 July 2020;
· two fire experts, Mr John Kelleher called by the prosecution and Mr Phillip Glover called by the defence;
· the police informant Mr Ashley Sutton.
51Given the issues in dispute the focus of the parties was on the evidence of the experts. That said, aspects of the evidence of the two civilians was highly probative of the key issues.
52Also tendered during the hearing were photographs and CCTV footage as well as the written reports of the experts. Again aspects or selections of photographs and the CCTV footage gave insight into how the key issues could be resolved.
(b) Civilian Evidence: James Rice
53Though he was called second in the hearing, it was Mr James Rice who was first alerted or woken by a concern about a fire in the motel room occupied by Mr Manson. Mr Rice was in another room in the motel with his partner. His relevant evidence related to how many times he went out of his room because of concerns about what was happening outside or nearby. His recollection was understandably not clear given the passage of time and perhaps his level of sophistication. In the end I considered he was a witness who was trying his best, was honest but struggled with some details due to his own issues or that of his partner. His evidence in chief had to be first aided by a ruling allowing him to refresh his memory from a statement and then leave to the prosecutor to cross-examine. He was also carefully and respectfully cross-examined by Mr Collins.
54What I took from his evidence was some insight that could be inferred on the issue in dispute, which was whether there were a number of separate fires in Mr Manson’s room at different times.
55Mr Rice first went outside his room as a response to his partner’s concern that their car was being broken into. On this occasion he saw nothing with respect to room 2.
56On a second occasion he went outside because he heard a smoke alarm. He then saw the door of room 2 being moved in a fanning motion and he saw white smoke coming out. It was not much smoke or not enough for him to be unduly alarmed. He thought it was like burnt toast and he went back to bed.
57While his evidence to this point was not crystal clear it added to an overall picture that there was smoke and likely fire at a point separate from and earlier to the later more dramatic fire events in the room.
58Mr Rice went on in his evidence, that at a later point, which he said was 3:20am, he heard a male yelling out, “Fire, I can’t get out”. Mr Rice went outside and saw smoke coming from the bathroom window of room 2. He went to get help and rang the motel night bell to alert the manager who then came to room 2. The manager and another guest were seen by Mr Rice forcing open the door of room 2.
59Mr Rice gave evidence of seeing a woman dressed in black in the carpark area on the 3rd occasion he went outside. Having reviewed this evidence and the approach of the parties to the central issues I have concluded that this evidence of a woman, though curious, is nothing but a distraction and I have put it to one side.
60What comes of the evidence of Mr Rice is that there were events involving smoke and thus fire, on two separate occasions.
(c) Civilian Evidence: Mark Henderson
61Mark Henderson, gave evidence that he was the owner of the motel. He was awoken by the night bell pushed by Mr Rice. He went to room 2 and recognised Mr Manson’s voice calling for help from the bathroom . He knew Mr Manson from other times he had stayed at the hotel.
62He tried to open the door but found it was barricaded from the inside. Another guest, Peter Jackson helped him to force open the door a little. He found a chair had been deliberately used to barricade the door shut. He or Mr Jackson was able to move it in order to get the door open. There were other items such as a towel and cutlery used to aid in the barricading of the door from the inside. These items can be seen in the photographs taken later by the investigators.
63Mr Henderson could see flames and the air conditioner unit alight and melting. There was thick black smoke. Ultimately the fire brigade and other emergency workers came and rescued Mr Manson and extinguished the fire.
64As to the layout and items in the room, he confirmed there were 3 beds in room 2 all with electric blankets. He did not know how old the electric blankets were. They were annually tested and tagged by him following a course he had done arranged by the local hotels association. He was not an electrician but said that you do not need to be an electrician to tag and test electric blankets as he had done. He also said the rooms were non-smoking rooms but he did not know if Mr Manson smoked. The evidence that Mr Henderson gave of Mr Mason’s concerns and a desire for an ambulance some days earlier came to nothing and as such I have not given this evidence any consideration at all. It was put to one side completely.
(d) Police evidence: Informant, Ashely Sutton
65Informant, Ashely Sutton, gave evidence that he became involved later on the morning of 13 July after the fire. He arranged for photographs to be taken, the CCTV footage to be secured and then met with Mr Kelleher the expert forensic fire scene examiner. He did not interview Mr Manson as Mr Manson was deemed to be unfit for interview. He was aware that Mr Manson was taken as an involuntary admission to the local hospital pursuant to s 351of the Mental Health Act. In cross-examination he said he told Mr Kelleher that there was a suspect and that he probably told him that the suspect was in hospital “under a s 351 process”.
66The various photos taken by the police or the forensic investigators and the CCTV footage were gathered up by Mr Sutton and tendered in the proceedings.
(e) Expert Evidence: John Kelleher
67John Kelleher was called as the prosecution’s forensic expert. Although for some reason the prosecutor moved over Mr Kelleher’s qualifications and experience, saying it was “agreed”, ultimately his written report was tendered, making it clear Mr Kelleher was a chemist and had decades of experience in the forensic examination of fires and giving opinion evidence in arson trials in all courts. I took it that the defence did not dispute that Mr Kelleher had the relevant expertise to express the opinions that he did in his oral evidence and in his written report. That said, the defence did raise in cross-examination with Mr Kelleher, that he had no experience as a hands on fire fighter, unlike the defence expert, Mr Glover.
68Mr Kelleher gave evidence that he examined room 2 at the motel in the later part of the morning of 13 July 2020. He had an assistant who took photographs under his direction.
69With respect to the central issues in dispute, and by way of overview, Mr Kelleher gave relevant evidence that the main area of fire damage was the north eastern bed. He noted that the north western bed was also damaged but less so. Of importance was that he noted that the damage to the north western bed was to the underside of the bed rather than the bedding on the upper side of the mattress. This finding caused Mr Kelleher to consider whether the fire from the north eastern bed had spread to the north western bed. He concluded that the physical evidence of the burning on the underside of the north western bed was such that it was unusual in his opinion. Further the fact that the bedding as opposed to the lower mattress area on the north western bed was undamaged suggested to him that there was in fact two separate fires each ignited separately and not one fire that spread from the north eastern bed to the north western bed.
70He went on to consider that the fire damaged debris in the bathroom and shower area made it likely that there was a separate fire ignited and commenced in the shower. He considered that it was not likely that the debris in the shower came into the bathroom from a single fire in the area of the beds. He was of the view that it was a wad of toilet paper that was already there and burnt to some degree where it was in situ. Mr Kelleher was taken to various photographs, though this process was not straightforward and caused a need for an adjournment of over a month. Ultimately he made clear his opinion that there were a number of separate fires lit or ignited in the room on the 13 July. His physical examination on the day and the photographs that he explained in his evidence led him to that firm opinion.
71By way of example, Mr Kelleher considered photograph 44 which showed extensive damage to the north eastern bed and also revealed limited damage to the north western bed. He pointed out the damage to the north western bed was on the underside and not the upper bedding making it unlikely the damage to the north western bed was by reason of the spread of the fire from the north eastern bed. He added that the fact that the double bed shown in the photographs was undamaged by fire, but was, in terms of distance, in similar proximity to the north eastern bed as the north western bed, fortified his opinion that there was not spread from the north eastern bed fire, rather a separate fire ignited on the underside of the north western bed.
72Likewise, he said, by reference to photographs 30-32, that the debris in the shower was likely from a separately ignited fire in the bathroom and not debris that had blown into the shower by convection current from a fire in the main area where the beds were situated. He considered that given the size of the debris such an occurrence would require a remarkable type of convection current.
73Mr Kelleher prepared his report before seeing the CCTV footage tendered in the hearing. Having seen the footage before giving evidence and again as it was played in court, Mr Kelleher’s firm view that there were multiple fires separately ignited was further fortified. He described that the first segment of the CCTV footage between 1:54-2:08 showed a fire igniting the blinds. It went out and then 20 seconds or so later a second fire was shown. He excluded the possibility that this was one fire that died down, smouldered and then re-ignited.
74He again made clear that the second segment of the CCTV showed a separate fire in the period between 2:56-3:18.
75Both in evidence in chief then again forcefully in cross-examination, it was put to Mr Kelleher that an accidental cause for the fire was not properly considered and therefore could not be excluded. He firmly rejected those suggestions making clear he came to this site, as he does all sites, with an open mind as to causation. He examined and considered all the physical evidence as to an accidental and in particular electrical fault as the cause of the fire and eliminated that possibility. He said in his evidence the following:
When you examined the room, what are you able to say about your conclusion that an accidental source, such as an electrical fault or fire, could've been responsible for what happened on the night in question?---Well, an – an electrical fault is something that – that is kept in mind. When – when we start the investigation it's – it's commenced with a – an open mind and we do consider the possibility of electrical faults. Um, but the – the air conditioner isn't actually – isn't actually badly burnt. I mean it does – it does – it does look in fairly poor condition, but that – that is actually melting, rather than burning. Um, and the wall around the air conditioner isn't as – is sooted, but – but it's not burnt. So, I think we're really able to exclude the air conditioner as a possible source of ignition. The – the damage to the bed below is – is actually better. I mean the – the – the bedding is – partially remains on the bed directly underneath the air conditioner. So, that was actually where that bed was in the best possible shape.
Yes?---Um, the only possibility was an electric blanket, and
um – ah, the um, the pattern of damage to the bed suggested that it started at the end – at the foot of the – towards the foot of the bed, rather than all over the bed, as we expect to be the case with an electric blanket fire.[25][25] Transcript of Proceedings, Monday 6 June 2022, DPP v Jason Manson, Special Hearing by Judge Alone, pages 9-10.
76He went on later to say:
….I mean, I didn't think it was an electric blanket fire. Um, having examined the bed and having examined the controls, I still didn't think it was an electric blanket fire.
HIS HONOUR: What is it about the controls that, when you examined them, fortified your view that it's not an electric blanket fire?---Well, Your Honour, that he – that the controls are burnt from the outside rather than from the inside. So that that suggests that there's not actually a fault with the controller, which um, which would have resulted in damage to the interior of the controls.[26]
[26] Ibid, page 10.
77Mr Kelleher explicitly stated that in relation to the fire shown in the CCTV of the blind, he “couldn’t think of an accidental explanation for it”.
78He went on to say there was no evidence as you would expect of something heavy being placed on the bed and causing the electric blanket to in turn cause a fire. There were no remnants of the heavy object as you would expect to find. Further, he said from his consideration of the physical evidence, that there was no evidence of damage to a power point or socket, or any wall cavity at or near a power plug, of the kind that would be expected if the fire started due to an electrical fault.
79The cross-examination of Mr Kelleher commenced with ascertaining if he knew from the informant that there was a suspect and that person had been subject to a “s 351 of the Mental Health Act process”. In the end, and with reference to the notes he took at the time he was at the scene, Mr Kelleher conceded he did know of those matters but it did not influence him in coming to a conclusion that the fire was probably deliberately lit. He maintained he kept an open mind and left those matters of suspects and custody to the police. He denied in effect that he did an inadequate investigation and omitted to do things, such as to look at the motel switch board or not bring back other electrical blankets for analysis because he was influenced to find a deliberate cause by reason of there being a suspect who had mental health problems.
80Mr Kelleher maintained that his description of the debris in the bathroom shower cubicle area as toilet paper was accurate, as he had seen it in three dimensions as it were, rather than the photo tendered in evidence in the hearing. He did not accept that the debris was from a doona cover that was found in the main area.
81As to the key issue of whether the fire on the north eastern bed spread to the north western bed, Mr Kelleher maintained that it was unlikely there was spread from one to the other as opposed to two separately lit fires on each bed. So as his evidence under cross-examination is understood, I quote again at length:
You cannot point to any particular points of ignition on either of those mattresses, can you?---Ah, no, I can't.
So it is possible then that the flames could have travelled over? Or the heat could have caused that damage, from the bed – the fire on the north-eastern bed?---Well, these flames, the flames tend – as was the heat, the flames tend to go up. It's not – it's not impossible – well, it probably is impossible. Well, no. There might be an exceptional air current which may make the flames turn over and – and down and ignite the bed. But, I – I can't really think what it would be. I think that's really - - -
Mr Kelleher – I beg your pardon?---unlikely.
I beg your pardon. Mr Kelleher, your evidence is that there's no possibility that the damage that's caused to those two mattresses in Photograph 55 could have been caused by proximity to a fire on a bed that was hot enough to melt an air conditioner, because flames travel upwards. Is that your evidence? Heat travels upwards?---Well – well, my evidence was that I thought that was unlikely to be the case. That it probably wasn't. The fact that the air conditioner has melted is really – really, um, of little significance, because – because that – it only takes moderate temperatures for that. It is possible that a fire on the north-eastern bed could produce enough radiant heat to ignite a fire on the north-western bed. But the way radiant heat works is that it goes in a straight line, and it would ignite those parts of the bed closest to – to the – to the fire on the north-eastern bed. So again, I think that's unlikely.[27]
[27] Ibid, page 59.
82A key criticism of Mr Kelleher taken up by Mr Collins in his cross-examination and in his final arguments, was that in effect Mr Kelleher’s conclusions reversed the onus, or was a form of jumping to conclusions when he wrote in his report: “In the absence of any source of accidental ignition I concluded that the fires were probably ignited directly by a match or cigarette lighter”. Mr Kelleher stood by that conclusion and explained that it was not a process of eliminating accidental causes and then immediately concluding a fire must be deliberately lit. Or, as he said, “One doesn’t necessarily follow from the other”, but “in this case I thought it did”.[28] He came to that view as he explained because: “it was a fairly small room and there were a limited number of possible accidental sources which I thought I could reasonably eliminate”.[29]
[28] Ibid, page 70.
[29] Ibid.
83It seemed to me that Mr Kelleher’s reasoning was orthodox and legitimate. Mr Kelleher’s view that although there was the absence of a precise source of ignition, it did not mean that any further conclusions he drew were mere supposition. Rather, as I understood it, Mr Kelleher was saying that he eliminated electrical fault, in particular an electric blanket fault, by reason of, or based on, his examination of the scene and the way that the multiple sites of the damage and the nature of the damage presented. Because of the way these critical features were seen or presented, it was not necessary, or it would not have advanced the understanding of the fire to examine other things outside the room such as the motel’s switchboard, or to do an offsite analysis of another of the undamaged electric blankets that may have been in the room. In this sense Mr Kelleher did not accept his investigation was inadequate or lacking.
84In the end I found Mr Kelleher’s evidence to be logical and his opinions reliable. I did not find the criticisms of his investigation as being inadequate or lacking in any material way to be made out. I do not accept that he approached the investigation with a closed mind or with any prejudgment because he knew that the police had a suspect who was someone with mental health problems. These matters did not diminish his credit.
(f) Defence expert evidence: Mr Phillip Glover
85The defence went into evidence and called a fire expert Mr Phillip Glover. Before dealing with his evidence I make clear that merely because the defence went into evidence does not effect the onus of proof which remains firmly on the prosecution. Mr Glover’s evidence was adduced to make it not possible for the prosecution to satisfy its onus to the high standard of beyond reasonable doubt. It was evidence that was adduced for the purpose of showing that a reasonable doubt existed by reason of an alternative hypothesis, consistent with innocence being reasonable. The defence did not have to prove that Mr Glover’s evidence was true, or even that it was to be preferred to that of the prosecution’s evidence, but rather the prosecution had to ensure that the alternative hypothesis was not reasonable.
86Mr Glover’s expertise was derived from his long experience as a fire services officer and forensic fire scene investigator in New Zealand and Australia. There was no issue that he was qualified to express the opinions he did.
87Mr Glover of course did not go to the scene but came to his conclusions and opinions based on the statements, in particular that of Mr Kelleher, photographs and the CCTV footage. He also observed Mr Kelleher’s evidence in the hearing.
88I should say at the outset that I found Mr Glover a genuine and helpful witness.
89As to the central question which he was asked in examination in chief early on, of whether it was possible there was one fire in room 2 that night, I was not entirely sure he gave a definitive answer, though the answer he gave was lengthy.[30] He certainly spoke in general terms of how radiant heat from one seat of a fire can ignite nearby combustible materials. He also made clear that in general terms sometime a fire appears to be put out but it later reignites due to a supply of oxygen or more material. He made clear mattresses, for example, are notorious for being difficult to completely extinguish.
[30] See Transcript of Proceedings, Monday 6 June 2022, DPP v Jason Manson, Special Hearing by Judge Alone, pages 103-105.
90I note though, that in cross-examination he made clear that the significant fire that consumed the north eastern mattress could have spread to the north western bed and left the pattern that can be seen. He added that as fires are generally unpredictable that it could be that this one fire spread to the north western bed but left the nearby double bed unscathed.
91However, I took from Mr Glover’s evidence at the end of his testimony that given the size of the debris in the bathroom, it was not likely that convection air current could have moved the wad, of what Mr Kelleher said was toilet paper, from the bedroom fire scene to where it was found by the basin in the bathroom. His view was, that it had to have been deposited where it was, by human intervention. In other words, a separate fire occurred in the bathroom at some point. This would have been a separate fire to those seen on the CCTV footage.
92Mr Glover was taken to the CCTV footage and made clear that there was fires at around 1:55am, 2:56am and later around 3:04am that continued as a significant blaze until the fire fighters can be seen. His view was, that had there been one fire that continued to burn then over the time of one and a half hours, it would have likely engulfed other parts of the motel building. This is an important point that goes to the likelihood of separate fires consuming the available material or being put out and then a separate fire being lit later on. This has to be seen in the context of the evidence of Mr Rice, seeing what had to be Mr Manson fanning the door, likely to get rid of smoke, making it furthermore likely that at that point, at least early on in the episode, Mr Manson was endeavouring to put out or mitigate a fire. Later of course Mr Manson decided, for whatever reason, to barricade the door.
93Ultimately, Mr Glover was of the opinion that a fire started by an electric blanket with some weight on it, was a cause that could not be excluded. Mr Glover suggested a more thorough investigation should have been done in terms of bagging and later with the assistance of electrical engineers examining the remnants of the electric blanket and any other electric blankets in the room.
94Mr Glover also thought a more thorough examination of the electrical features in the room and the motel switchboard would have been how he would have undertaken the investigation. In that regard Mr Glover assumed that there was likely few power points in the room and therefore the need for a power board for all the electric blankets. That was speculation, and I accept that Mr Kelleher did examine the power points, and having done so came to the reasonable conclusion there was no causal involvement of any electrical device or power point in the room meaning an examination of the switchboard would have been superfluous.
95Mr Glover considered that the conclusion by Mr Kelleher, that in the absence of any accidental source of ignition there was deliberate fire lighting, was supposition. He considered that in general if there was not obvious source of ignition the cause of the fire should remain undetermined. Mr Glover more than once said that as we were not in the room we would never know what caused the fire. This later proposition is true enough as a matter of pure logic, but it undervalues the capacity of pulling together the array of evidence both forensic, and otherwise, and then drawing a reasonable inference as to the cause.
PART C: ARGUMENTS OF COUNSEL
96Following all the evidence and the discussion pursuant to the JDA, counsel gave helpful final addresses. I have, at the beginning and during the analysis of the evidence, touched on key aspects of the way the parties approached the key issues in this case. I will here be concise and not do full justice to the comprehensive arguments of Counsel. I have taken into account all the submissions.
97The prosecutor Mr Gray identified that the two elements in dispute, being causation and intent, were answered by the examination of all the circumstances. He relied on the evidence of Mr Kelleher and the CCTV footage which he said was a “cornerstone”. What I deduced from the argument was that there were multiple fires in the main room involving the single mattresses evidenced by: the pattern of damage and debris on the two single mattresses and yet none on the double mattress, the debris in the bathroom, and the timeframes (made clear by the CCTV footage and to some extent the civilian evidence, in particular that of Mr Rice). The submission was, that the conclusion there were multiple fires was irresistible. Further, all those factors, and importantly the expert evidence of Mr Kelleher who examined the site, leads to a conclusion that some accidental cause such as electrical fault, in particular an issue (whether fault or otherwise) with an electric blanket, can be comfortably excluded. The fires were separate and not a reigniting of a single fire. The only reasonable conclusion was they were caused by human intervention and, as Mr Manson was the only one in the room, he was the one who caused or lit the fires.
98As to the third element, the prosecution said the fact of multiple fires over the course of the night, the places, including in the bathroom, and the fact of Mr Manson opening the door at one point then barricading it later, leads inevitably to the only reasonable conclusion that Mr Manson intended to light the fires or, to use the language of the statute, he purposely damaged the property.
99Thus the only conclusion was a finding beyond reasonable doubt that Mr Manson committed the offence of arson.
100The defence submissions put by Mr Collins were in writing and made orally. They were carefully constructed and said all that could be said regarding the evidence and the principles of determining a circumstantial case.
101Mr Collins endeavoured to expose the prosecution case as being no more than an argument that, given Mr Manson was in the room, he must have deliberately lit the fire or fires. The argument was developed that the prosecution case falls short of proof beyond reasonable doubt because it was entirely based on a flawed expert report, which was in turn based on assumptions and unconscious prejudgment because of what was learnt by the expert of Mr Manson’s circumstances.
102The submission went on that, in circumstances where there are in essence competing experts opinions, the prosecution cannot exclude the opinions of Mr Glover as to causation – that is accidental cause – as being unreasonable. Therefore, there must remain a reasonable doubt.
103Mr Collins, further pressed the point I have mentioned already in the analysis of the evidence, that Mr Kelleher applied a binary reasoning process, that if accidental cause cannot be found then a fire must be deliberately lit. His argument based on Mr Glover’s evidence that, in those circumstances, the cause ought be categorised as undetermined and thus a doubt existed as to element 1.
104Mr Collins acknowledged that if it were established that there were multiple separate fires in the main bedroom and the bathroom over the early hours of 13 July it would be difficult to maintain that there was not human intervention. His point, firmly made, was that there was enough in the evidence regarding a single accidental fire breaking out and then simmering and reignited throughout the timeframe. He argued that the inadequate investigation by Mr Kelleher meant that an accidental cause, such as from the electric blanket, could not be excluded and from there the fire kept re-emerging and igniting other material in the room.
105There were other aspects of the careful submissions made and I have read and re-read them all.
PART D: FINDINGS OF FACT
106As is clear from s 61 of the JDA, in any jury trial or hearing, and thus in this judge alone special hearing, all that the prosecution must prove to the standard of beyond reasonable doubt is the elements of the offence. Accordingly, the findings of fact that I will now articulate are not all said to be findings beyond reasonable doubt. However, I have in my considerations reached a high level of persuasion in accepting the following as the facts. Indeed for many of the key facts I am left with no reasonable doubt on the matter.
107I have at all times kept focussed on the central issues in this case being the issue of causation and intent.
108The first important but uncontroversial finding is that Mr Manson was the only person in room 2 throughout the early hours of 13 July 2020.
109Second, I find there were multiple fire events over the time broadly of 1:54-3:20 as evidenced by the CCTV footage and the evidence of Mr Rice.
110Third, there were separate fire sites within the whole of the room, meaning separate fire sites in the main bedroom area and a separate fire in the bathroom. As to the fire in the bathroom, I reject any suggestion that Mr Kelleher was mistaken as to the material he saw in the bathroom and described as toilet paper. The suggestion that it was material with the same pattern as a doona laid out by Mr. Kelleher is not at all made out on the evidence of Mr Kelleher and in the photographic evidence available to me. It was a large wad of toilet paper which was of course available in the bathroom and it was set on fire there and extinguished likely in the sink where it was found. The absence of scorch marks is not a matter of such moment as to cause me to doubt that there was a fire involving toilet paper in the bathroom. That finding is important in the resolution of the question of whether there was multiple separate fires lit independently as opposed to a single accidental fire that simmered and reignited in the main bedroom area as seen on the CCTV footage. In my view there is no possibility at all, that the material in the bathroom, whatever it was, got there on some convection air current. It was there because of human intervention. Specifically, as toilet paper it was always there in the bathroom. It was set on fire there in a separate fire lit independently from any other fire in the main room.
111Fourth, given my finding that there were separate fire events over a considerable time frame and my finding that there were fires in different places and, given the evidence about and appearance of the two single mattresses on the northern wall, I find that there were also at least two separate fires ignited in the main bedroom at each of the mattresses. The CCTV footage also makes it likely there was a brief fire at the window/curtains area at some early point.
112Fifth, and as a consequence of all the matters raised above, I am firmly of the view, indeed I have no reasonable doubt that there were a number of separate fires in the whole of the room, both bedroom and bathroom, and given the time sequences from the CCTV footage and the civilian evidence, the fires were ignited separately from each other and were not, and could not, have been a single fire that simmered as it were and reignited over the one and half hour time frame.
113Sixth, given the above matters, but most particularly my view of the reliability and accuracy of the observations of Mr Kelleher and his opinions based on those observations, I have no doubt that these fires did not arise from some accidental cause, such as an electrical fault or an electric blanket with significant weight on it or an accidentally dropped cigarette butt. I reject the possibility of separate accidental causes for the separate fires in location and time. That proposition is not reasonable at all.
114Seventh, I have thoroughly considered the alternative hypothesis of a single fire commenced by an electric blanket or the like or any other accidental cause. I have come to the conclusion based on all the evidence including the actions of Mr Manson at the door when Mr Rice first heard a smoke alarm, and then in barricading the door, that the accidental caused single fire simmering and reigniting and then leaving debris somehow in the bedroom and the bathroom and burning the two single mattresses in the way they are seen to be burnt, is as a hypothesis one that is simply not reasonable. Indeed, to use the terms sometimes used in inferential reasoning, I find that the evidence renders that alternative hypothesis fanciful.
115Eighth, having considered and reconsidered all the evidence and by keeping firmly in mind that Mr Manson is presumed to be innocent, I have reached the position where I have no doubt the fires were caused by human intervention or to put it simply they were deliberately lit. I have not fallen into the fallacy identified by Mr Collins that because there is no obvious or any accidental cause it must be a deliberately lit fire as opposed to causation being unable to be determine. Rather, I have considered carefully all the evidence and find beyond reasonable doubt that, taken as a whole, what occurred here were fires separately and independently lit, not fires accidentally caused. Accordingly, it means that if they were deliberately lit, it was Mr Manson who lit them.
116Thus with these findings I turn to the question; am I satisfied beyond reasonable doubt that the first element of the crime of arson is made out. The answer to that is yes, I am satisfied beyond reasonable doubt that Mr Manson caused the damage by lighting the fire.
117As to the third element of the accused state of mind, here the findings of separate fires in different places over the extensive period of time all lead to the conclusion that Mr Manson lit the fires deliberately or with the intention of causing damage.
118I add to this that the accused conduct in barricading the doors adds a significant fact to the consideration and conclusion that he had the requisite criminal intent.
119Thus, in answering the question am I satisfied beyond reasonable doubt that Mr Manson intended to cause the damage by fire, the answer is yes, I am so satisfied to the criminal standard.
PART E: VERDICT
120For all the reasons stated above, the verdict I have come to, beyond reasonable doubt, is that Mr Manson committed the offence of arson. The verdict is that set out in s 17(1)(c) of the Act.
121What follows is that I must order that Mr Manson is liable for supervision under Part 5 of the Act or he is to be released unconditionally, but any order, and most particularly an order as to supervision, must await provision of materials pursuant to ss 40 and 47 of the Act.
122I will hear Counsel on those matters at an appropriate date in the future.
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