Director of Public Prosecutions v Williams
[2024] ACTSC 160
•24 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Williams |
Citation: | [2024] ACTSC 160 |
Hearing Dates: | 4 – 8 December 2023 |
Last Submissions: | 14 March 2024 |
Decision Date: | 24 May 2024 |
Before: | Taylor J |
Decision: | See [236]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge-alone verdict – arson – possess knife – resist territory official – trespass – consideration of verdict of not guilty by way of mental impairment – circumstantial case – reasonable hypothesis consistent with innocence not excluded by the prosecution – not guilty on arson, obstruct and possess knife offences – trespass offence admitted – agreement between experts that the accused suffered from schizophrenia – satisfied on the balance of probabilities that the accused had a mental impairment – special verdict of not guilty because of mental impairment on trespass offence – accused discharged absolutely pursuant to s 20BJ(4) of the Crimes Act 1914 (Cth) |
Legislation Cited: | Crimes Act 1900 (ACT), ss 321, 382(1) Crimes Act 1914 (Cth), s 20BJ Criminal Code 2002 (ACT), ss 18(2), 22, 20(4), 27, 28, 29, 404(1) Criminal Code Act 1995 (Cth), s 7.3, ch 2 Criminal Procedure Act 1986 (NSW), s 133(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 68 Evidence Act 1995 (NSW), ss 165B Evidence Act 2011 (ACT), ss 165, 191 Magistrates Court Act 1930 (ACT), ss 88B Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 5A, 11 Supreme Court Act 1933 (ACT), ss 68B, 68C(2), 68D, 68E |
Cases Cited: | Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 DPP v Kakar [2023] ACTSC 236 R v Doolan [2001] ACTSC 69 R v Falconer [1990] HCA 49; 171 CLR 30 R v Islam [2011] ACTSC 32 R v Jackson [2021] ACTSC 120 R v Mason [2019] ACTSC 161 R v Smith [2012] ACTSC 146; 269 FLR 233 R v Steurer [2009] ACTSC 150; 3 ACTLR 272 Reeves v R; R v Reeves [2013] NSWCCA 34; 227 A Crim R 444 Ward v Richardson [2021] ACTSC 130 Wilson v State of New South Wales [2010] NSWCA 333; 278 ALR 74 |
Parties: | Director of Public Prosecutions ( Crown) Jesse Dean Williams ( Accused) |
Representation: | Counsel M Dyason ( DPP) K Lee ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 348 of 2022 SCC 349 of 2022 |
TAYLOR J:
Introduction
1․This is a trial by judge alone after the accused, Jesse Dean Williams signed an election on 18 July 2023 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
2․The accused has been charged with the following offence on an indictment dated 1 March 2023:
(a)Count 1 (CC2022/6811): Arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (the ACT Criminal Code) which carries a maximum penalty of 1500 penalty units, imprisonment for 15 years or both.
3․In addition, three offences have been transferred to this Court pursuant to s 88B of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act):
(a)CC2022/6812: Possess knife in a public place without reasonable excuse contrary to s 382(1) of the Crimes Act 1900 (ACT) (the ACTCrimes Act) which carries a maximum penalty of 10 penalty units, imprisonment for 6 months or both; and
(b)CC2022/6813: Resist a territory public official contrary to s 361(1) of the ACT Criminal Code which carries a maximum penalty of 200 penalty units, imprisonment for 2 years or both; and
(c)CC2022/8328: Trespass on premises without reasonable excuse contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Public Order Act) which carries a maximum penalty of a fine of not more than 10 penalty units.
4․Section 68D of the Supreme Court Act requires that the Court deal with any backup or related offences with which the accused has been charged if it is in the interests of justice. Section 68E of the Supreme Court Act requires that a related charge be dealt with by the trial judge on the basis only of the evidence given at the trial on the indictable offence in the same proceeding. I consider it to be in the interests of justice to deal with the related charges as part of the trial in relation to the arson and the parties did not submit to the contrary.
5․The prosecution invited me at the end of all the evidence to dismiss the charge of possessing a knife, conceding the evidence did not establish beyond reasonable doubt that the accused possessed a knife. I agree with that submission. Accordingly, CC2022/6812 will be dismissed.
6․As will become clear, after carefully considering the evidence, I am not satisfied beyond reasonable doubt that the offence of arson has been made out. The accused is entitled to an acquittal on Count 1 on the indictment. Further, I am not satisfied beyond reasonable doubt that a lawful arrest of the accused had been effected when he engaged in conduct constituting the offence of resist territory public official. Accordingly, CC2022/6813 will be dismissed. The elements of the remaining trespass charge have been established beyond reasonable doubt, the consequence of which is the entry of a special verdict and an order releasing the accused absolutely in relation to the fine only offence.
The proceedings
7․On 5 December 2023 the trial commenced after the accused was arraigned. The accused pleaded not guilty to the arson offence. Mr Lee, for the accused, indicated that if I am satisfied beyond reasonable doubt that the arson offence is proved, the accused relied on s 28 of the ACT Criminal Code to establish that he is not criminally responsible for the offence.
8․This is not the pathway available to an accused who relies upon mental impairment pursuant to s 321 of the ACTCrimes Act. In matters where mental impairment is relied upon to deny criminal responsibility a plea of not guilty because of mental impairment can be entered pursuant to s 321 of the ACTCrimes Act at the outset of the proceedings. In those circumstances there is commonly substantial agreement as to the facts and circumstances that establish the elements of the offence and the Court “must enter a special verdict that the person is not guilty of the offence because of mental impairment if the court considers the verdict appropriate and the prosecution agrees to the entering of the verdict”: s 321(2) of the ACTCrimes Act.
9․Here the accused enters a plea of not guilty, requiring the prosecution to establish each element of the offences beyond reasonable doubt. There is no prohibition on the accused approaching the matter in this way, nor any inconsistency in the position adopted by the accused. His plea of not guilty requires the prosecution to prove each element of the offence to the requisite standard. If the prosecution is successful in doing so, the accused raises mental impairment to deny criminal responsibility for the offence the prosecution has otherwise successfully established.
10․The ability to test the prosecution case is clearly not lost to an accused person who also seeks to rely on the existence of mental impairment at the time of the alleged offending to deny criminal responsibility. The establishment of a mental impairment that may provide a basis to deny criminal responsibility does not, in the face of a plea of not guilty, relieve the prosecution of the requirement to prove each element of an offence beyond reasonable doubt. Where the prosecution cannot discharge that burden, an accused, including one who may have sought to rely on mental impairment, is entitled to an acquittal.
11․Section 28(1) of the ACT Criminal Code provides:
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
…
12․I note here that Chapter 2 of the Criminal Code Act1995 (Cth) (the Commonwealth Criminal Code), which sets out the general principles of criminal responsibility, applies to the Public Order Act offence (the trespass offence): s 5A of the Public Order Act. The provisions in the Commonwealth Criminal Code in relation to mental impairment and criminal responsibility are in almost exactly the same terms insofar as the test for determining criminal responsibility where mental impairment is raised, the assessment of the existence of a fault element, and the requirement to return a special verdict if satisfied an accused is not criminally responsible for the offence only because of a mental impairment: see sub-ss 7.3(1), (6) and (5) of the Commonwealth Criminal Code.
13․At the outset of the trial, the prosecution accepted that if I am satisfied that the offence of arson is proved, the “appropriate” outcome is the entry of a “special verdict” of not guilty by reason of mental impairment. Indeed s 28(7) appears to dictate as much, providing:
…
(7)If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b)for any other offence—find the person not guilty of the offence because of mental impairment.
14․Implicit in the position adopted by the prosecution is an acceptance that the accused was mentally impaired at the time of the offending as defined by s 27 of the ACT Criminal Code and s 7.3 of the Commonwealth Criminal Code and further, that the mental impairment had an effect contemplated by sub-ss 28(1)(a), (b) or (c) of the ACT Criminal Code and sub-ss 7.3(1)(a), (b) or (c) of the Commonwealth Criminal Code. The prosecution did not challenge any of the material relied upon to establish that the accused was mentally impaired at the time of the offending.
15․On 7 December 2023 I retired to consider my verdicts. The parties were directed to file and serve submissions. A final set of supplementary submissions was filed and served on 14 March 2024. I received further clarification from the parties as to the elements of the offences on 2 May 2024.
16․As I have already observed, this is not a matter where the accused has entered his plea of not guilty pursuant to s 321 of the ACTCrimes Act and so, it has no application. In R v Jackson [2021] ACTSC 120 (Jackson) Mossop J took the same approach where an accused similarly required the prosecution to establish the elements of the offence, observing at [3]-[4]:
3. At the commencement of the trial there was an issue as to whether or not it was open to the accused to contest whether or not elements of the charge were made out in circumstances where s 321 of the Crimes Act applied. Section 321 applies “if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court”. Section 322 of the Crimes Act relates to the explanation that needs to be given to a jury if “evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment”. When read in the context of s 322, it is clear that s 321 only covers the limited circumstances in which the entry of a special verdict with the agreement of the prosecution will resolve the issues that need to be determined in the proceedings. In such a case, the need for a trial is avoided. As the subsequent section, s 322, makes clear, the operation of s 28 of the Criminal Code may be raised in a trial so that if the jury is satisfied that the offence is otherwise proven, it may still return the special verdict of not guilty because of mental impairment. That must also be the case in a trial by judge alone. Even though trial by judge alone is not mentioned in s 321 or s 322, that is only because it must have been assumed that a judge sitting alone could work out the legal and practical consequences of a verdict of not guilty by reason of mental impairment, as distinct from a verdict of guilty or not guilty. There was therefore no need to include a provision such as s 322 about the directions that must be given.
4. In a case in which an accused person wished to contend that the Crown cannot prove one or more elements of the offence but, if the elements were proven beyond reasonable doubt, then wished to contend that a verdict of not guilty by reason of mental impairment should be entered, the appropriate course was to enter a plea of not guilty, rather than attempt to deal with the matter within the scope of s 321 of the Crimes Act. Because of the position adopted by the accused, s 321 had no application in this case.
17․Accordingly, I approach this matter on the basis that I am required to direct myself as I would in any other criminal trial.
Criminal trial directions
18․I am required pursuant to s 68C(2) of the Supreme Court Act to set out:
(a)the principles of law applied; and
(b)the findings of fact which I make.
19․I must also take into account any warning or direction to be given, or comment to be made, that would have been made to a jury in the proceedings had the matter proceeded before a jury: s 68C(3).
20․Annexed to these reasons at “A” are the directions I have given myself in this trial.
21․The accused sought a warning pursuant to s 165 of the Evidence Act2011 (ACT) (the Evidence Act) regarding a comment allegedly made by the accused to a witness, Mr Coric, at a point close in time to the alleged offending. The remark to Mr Coric was characterised by the prosecution as “premeditory (sic) admissions or an insight into the intention of the accused”. There was an issue raised by the prosecution as to whether a direction under s 165 of the Evidence Act was appropriate with respect to admissions said to have been made by the accused. Section 165 relevantly provides:
165 Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(c)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
…
(2)If there is a jury and a party requests, the judge must—
(a)warn the jury that the evidence may be unreliable; and
(b)tell the jury about matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)It is not necessary that a particular form of words be used in giving the warning or information.
…
22․The accused submitted that a s 165 warning is applicable to judge-alone trials, relying on s 68C(3) of the Supreme Court Act:
…
(3)In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
23․While not strictly opposing the warning sought, the prosecution submitted that s 165 did not apply because these were not proceedings being conducted before a jury citing sub-s (2): “if there is a jury”. In a proceeding without a jury, the prosecution contended that the content of any warning required to be given is a matter for the common law, citing Odgers’ Uniform Evidence Law (Odgers’), 15th ed at [EA.165.150], where it is recorded that s 165(2) of the Evidence Act only applies in a proceeding with a jury, and that it would “generally follow” that if there is no jury, then the warning required is a matter for the common law, citing Reeves v R; R v Reeves [2013] NSWCCA 34; 227 A Crim R 444 at [418] (Reeves).
24․Reeves was concerned with s 165B of the Evidence Act 1995 (NSW) (the NSW Evidence Act) which deals with “Delay in prosecution”. The Court of Criminal Appeal observed at [418]: “The Crown accepted that s 165B of the Evidence Act 1995 does not apply in a trial without a jury and so the common law principles apply: s 165B(1)”. Section 165B(1) of the NSW Evidence Act expressly provides that the section applies in a criminal proceeding in which there is a jury.
25․Odgers’ goes on to identify that some jurisdictions have statutory provisions operating to “apply this provision [s 165 of the Evidence Act] to a judicial officer sitting without a jury”, citing s 133(3) of the Criminal Procedure Act 1986 (NSW) as an example. This provision is in equivalent terms to s 68B(3) of the Supreme Court Act upon which the accused relied as the basis for the necessity of a s 165 warning in a judge-alone trial. The prosecution submissions did not account for the terms of s 68B(3) of the Supreme Court Act, the effect of which in my view, is plain. The direction having been sought by the accused, must be given to a jury, unless there are “good reasons” for not doing so: s 165(3). I do not consider there are any good reasons not to give the direction and none were identified by the prosecution.
26․In those circumstances the direction sought pursuant to s 165 is required by Territory law and according to the terms of s 68B(3) of the Supreme Court Act, I must take it into account in considering my verdict and include it in my judgment. I have included the warning pursuant to s 165 of the Evidence Act as part of the directions annexed to this decision at “A”.
The role of mental impairment in determining whether the prosecution has established the elements of the offence
27․Section 29(1) of the ACT Criminal Code and s 7.3 of the Commonwealth Criminal Code provide:
(1)A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.
28․As Baker J observed in DPP v Kakar [2023] ACTSC 236 (Kakar) at [136] “the relationship between mental impairment, fault elements and voluntariness is complex: see Jackson at [113]-[122]”. Jackson similarly captures the complexity involved when assessing a fault element which necessarily involves an “enquiry into the state of mind of the accused”: at [121]. In Jackson, having determined that the prosecution had established beyond reasonable doubt that the accused had “intentionally” lit a fire and the fire had caused damage, his Honour was required to determine whether the accused was reckless about causing the damage. Justice Mossop carefully articulated the difficulty involved in assessing recklessness, being the state of mind of the accused, without reference to the accused’s mental impairment observing at [121], “it will be an unusual case in which there are circumstances which do not involve a consideration of the mental impairment” before concluding “the matters pointed to in the present case were so intimately related to the accused’s state of mind that, for the purposes of s 29, they cannot be disentangled from her mental impairment”. Ultimately, being satisfied on the balance of probabilities that the accused was suffering a mental impairment that had one of the effects contemplated by s 28, the consequence of which was the entry of a special verdict, Mossop J did not definitively determine the question of recklessness.
29․The complexities involved can be seen in the nuanced variations in the approach this Court has taken to an assessment of whether a fault element has been established in circumstances where mental impairment has been raised: see R v Steurer [2009] ACTSC 150; 3 ACTLR 272, R v Smith [2012] ACTSC 146; 269 FLR 233, and R v Mason [2019] ACTSC 161.
30․In R v Islam [2011] ACTSC 32 Matthews AJ approached mental impairment on the basis that both the physical and fault elements of the offence must be proved beyond reasonable doubt before the requirement to consider mental impairment, and whether it had one of the effects in s 28(1) of the ACT Criminal Code, arises. Her Honour was not satisfied the accused had the requisite intention to kill and so acquitted the accused of attempted murder. While the accused’s conduct was carefully assessed as part of the assessment of the prosecution case on attempted murder, there was no consideration of the influence of any “mental impairment” on the accused’s capacity to have formed the relevant intention. On the charge of intentionally inflicting grievous bodily harm the accused was found not to be mentally impaired at the time of the offending and was convicted of that offence. The parties in this matter agreed that the approach in Islam is the approach that should be taken in this matter.
31․A careful reading of Jackson demonstrates that Mossop J adopted this approach and reasoned that the state of the evidence was such that he could not consider recklessness without taking some account of the accused’s mental impairment because of the inability to “disentangle” one from the other, though accepted there might be instances where a doubt about a fault element existed for reasons “unconnected with a person’s mental impairment”. His Honour noted that the purpose of s 29, which gives effect to the approach in R v Falconer [1990] HCA 49; 171 CLR 30, is to deny an acquittal where it is only based on the establishment of mental impairment. If mental impairment is not established then the fact finder should convict if all other elements are satisfied beyond reasonable doubt.
32․The prosecution submitted that while the Court should have regard to the manner in which the accused was behaving and his conduct around the time of the offending, the existence of any mental impairment cannot be used to reason that a fault element has not been established. Put another way, the Court can have regard to any evidence about the specific conduct and behaviour of an accused (whether a consequence of mental impairment or not) but cannot rely on a mental impairment to find a fault element has not been established. This is consistent with the terms of s 29 of ACT Criminal Code and s 7.3 of the Commonwealth Criminal Code,
33․In this case, an assessment of whether the accused lit the fire intentionally and was reckless about causing damage to the premises, cannot take into account any mental impairment relied upon by an accused, even where the mental impairment is accepted to exist by the prosecution. To do so would infringe the terms of s 29 and s 7.3. Where the prosecution establishes beyond reasonable doubt the elements of an offence, mental impairment of the kind and with an effect contemplated by ss 27 and 28 of the ACT Criminal Code (and the equivalent Commonwealth Criminal Code provisions) operates to see an accused not to be criminally responsible for the offence. The burden of establishing a mental impairment, is on an accused who seeks to rely on it to deny criminal responsibility, on the balance of probabilities.
34․The prosecution conceded that there is a fundamental question in this matter as to whether they have proved beyond reasonable doubt that the accused engaged in the physical element, namely the conduct of lighting the fire. The prosecution further submitted that given the case against the accused is a circumstantial one, the question should be whether, on the evidence I accept, all reasonable hypotheses consistent with innocence with respect to how the fire commenced have been ruled out.
35․The accused agreed with the position submitted by the prosecution with respect to the approach to be taken to mental impairment and to a circumstantial case. Further the accused submitted that the prosecution has not excluded all reasonable hypotheses consistent with innocence and accordingly has not established that the accused engaged in the conduct by lighting the fire (the physical element) or that he did so deliberately (the fault element). Both parties agree that if I am not satisfied beyond reasonable doubt as to the physical and fault elements, being the conduct of intentionally lighting the fire, then the accused is entitled to an acquittal.
Elements of the offence of arson and the related offences
36․Arson is an offence contrary to s 404(1) of the ACT Criminal Code which provides:
404 Arson
(1)A person commits an offence if the person—
(a) causes damage to a building or vehicle by fire or explosive; and
(b)intends to cause, or is reckless about causing, damage to that or any other building or vehicle.
37․Relevantly for these proceedings, a building is defined to include part of a building and any structure whether or not moveable that is used, designed or adapted for residential purposes: s 404(4).
38․The elements of the offence of arson are:
(a)The accused engaged in conduct (physical element: conduct engaged in voluntarily, being a product of the will of the person whose conduct it is).
(b)The accused intended to engage in that conduct (fault element: intention).
(c)The accused’s conduct caused damage to a building by fire (physical element: the result of conduct).
(d)The accused intended or was reckless about causing damage to the building (fault element: intention, proof of which satisfies recklessness).
39․At the outset the prosecution identified “intention” as the fault element upon which they relied for element (d). Proof of intention will prove recklessness: s 20(4) ACT Criminal Code. A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events: s 18(2) of the ACT Criminal Code.
40․The elements for the offence of obstructing a territory public official contrary to s 361(1) of the ACT Criminal Code are:
(a)The accused obstructs, hinders, intimidates or resists a public official (physical element: conduct).
(b)The accused intends to obstruct, hinder, intimidate or resist the public official (default fault element: intention – s 22(1)).
(c)The accused knows the public official is a public official (fault element: knowledge).
(d)The public official is a territory public official (physical element of circumstance: absolute liability applies: ACT Criminal Code, s 361(2)).
(e)At the time of the obstruction, hindering, intimidation or resistance, the public official is exercising his or her functions as a public official (physical element: circumstance: strict liability applies: ACT Criminal Code, s 361(2));
(f)The functions are functions as a territory public official (physical element: circumstance).
(g)The accused was reckless that the functions are functions as a territory public official (default fault element: recklessness, s 22(2)).
41․The elements for the offence of trespassing on premises without reasonable excuse contrary to s 11(1) of the Public Order Act are:
(a)The accused trespassed on premises (physical element: conduct (engaged in voluntarily) fault element: intention (the accused means to engage in the conduct).
(b)The accused had (referring to Ward v Richardson [2021] ACTSC 130 at [40]):
(i)knowledge that he did not have the permission of the occupier to be on the property on the occasion in question; or
(ii)knowledge or belief that he may not have the permission of the occupier to be on the property on the occasion in question; or
(iii)complete indifference as to whether he had the permission of the occupier to be on the property on the occasion in question.
(c)The premises are in a Territory (and are not Commonwealth premises: s 11(4) of offence provision; absolute liability: s 11(2A))
(d)The accused did not have a reasonable excuse for trespassing on the premises: s 11(2B) (the accused bears an evidential burden: s 11(2B)(Note)).
42․Arising from the position adopted by the prosecution in relation to the possess knife offence, with which I agree, it is unnecessary to consider the elements of that offence.
Summary of the prosecution case
43․The parties agreed a number of facts at the outset of the trial pursuant to s 191 of the Evidence Act, which are as follows:
(a)On 6 July 2022, Jesse Dean Williams (the ‘accused’) resided at 16 Dowling Street, Watson which is a single storey, three-bedroom brick veneer house owned by the ACT Government and managed by CatholicCare Canberra and Goulburn (the ‘premises’).
(b)On that date, a fire started in the premises, causing extensive damage to the property.
(c)The premises is part of the Justice Housing Program (JHP) which is subcontracted through CatholicCare.
(d)As of 6 July 2022, the premises were leased to the accused, Mr Massey and Mr Incezdi.
(e)The accused had been residing at the premises for approximately one month prior to the incident occurring.
(f)At or about 11:37AM, Mr Coric arrived at the premises in a blue flat-bed tow truck. He exited the vehicle and walked up the driveway of the premises.
(g)At or about 11:43AM, Mr Coric walks back down the driveway with a large red fuel cannister and takes it to his truck.
(h)At about 11:44AM, a silver-coloured Holden station wagon reverses down the driveway of the premises. [Redacted], the accused’s partner, was in the car at the time.
(i)Shortly after, the accused walked down the driveway on foot wearing sunglasses on his head, a navy hooded jumper, navy jacket and dark pants.
(j)The accused then walked over to Mr Coric and had a conversation with him.
(k)The accused then walked along the driveway back toward the premises before entering the house.
(l)Mr Coric then drove away in the flatbed tow truck and left the scene.
(m)The accused then left the premises via the driveway with a hood pulled over his head and continued westbound down Dowling Street.
(n)The accused then walks around the corner, northbound, and passes [redacted]’s Australia Post bike, wearing the same clothes and no shoes.
(o)The accused then turns to walk eastbound along Dowling Street in the direction of [redacted] Dowling Street, Watson.
(p)The accused then entered the back yard of [redacted] Dowling Street and entered a shed in the back yard, where he deposited his jacket, grey pants and clear framed sunglasses inside a brick pizza oven.
(q)These were the clothes being worn by the accused during his conversation with Mr Coric and those he was wearing when leaving the premises.
(r)The accused was observed by Ms Johnson walking between the house and the garage of [redacted] Dowling Street and then continuing westbound, away from the vicinity of [redacted] Dowling Street, toward the greenbelt where the accused was ultimately discovered by police.
(s)The accused made his way down the road to a nearby green belt where he began rummaging around a raised patch of dirt with his bare hands.
(t)Acting Sergeant Christopher Higgins drove down Dowling Street with Constable Paige Grant. Constable Grant observed the accused across the greenbelt between Dowling Street and Jordan Place, Watson.
(u)Acting Sergeant Higgins drove onto the greenbelt and stopped behind the accused, alighted from his police vehicle and approached the accused who was wearing a blue hooded sweater, green pants cut-off at the knees and no shoes.
(v)The accused was told to put his hands behind his back. The accused then questioned why he had to do this. Acting Sergeant Higgins started to explain that the accused was being placed under arrest, as he did this the accused turned and started to run away. Acting Sergeant Higgins reached out and grabbed the clothing of the accused, catching his ring finger in the clothing and ultimately fracturing his finger.
(w)Acting Sergeant Higgins and Constable Grant gave chase and were joined by Constables Mickelson and Wright. Constable Mickelson yelled for the accused to stop and get on the ground. The accused stopped and laid face-down on the road and was arrested on suspicion of arson and he was cautioned.
(x)The accused was then placed under arrest where evidence bags were secured around his hands and wrists, and he was placed in handcuffs to the back.
(y)The following items were seized by the informant at the Watch House and recorded in Property Seizure Record (PSR) 529608:
(i)Paper bags from the left and right hands; and
(ii)Black hooded jumper; and
(iii)Green shorts.
(z)The accused had, in his possession, the following items at the time of arrest which were seized by Constable Robert Wright and were recorded in PSR 522670:
(i) A blue Bic branded cigarette lighter; and
(ii)A blue, white and green camouflage printed cigarette lighter; and
(iii)A red bottle cap.
(aa)Constable Grant went back to the location where police first observed the accused near [redacted] Jordan Place, Watson. She observed a patch of disturbed earth and a piece of blue cloth protruding from the ground.
(bb)Constable Grant observed a cigarette lighter on the ground and found a large silver knife in the ground.
(cc)The following items were ultimately recovered and seized by Constable Andrew Bishop and recorded in PSR 522671:
(i)a large silver knife; and
(ii)a blue rag; and
(iii)a black sheath for a knife; and
(iv)a packet of matches; and
(v)a yellow cigarette lighter.
(dd)Ms Murdoch resides at [redacted] Dowling Street, Watson. On the morning of Thursday, 7 July 2022 at approximately 7:20AM, Ms Murdoch looked through her back window and noticed that the door to the shed in the backyard was open. The door to the shed is usually closed and secured with a bolt but no lock.
(ee)At approximately 8:30AM, Ms Murdoch went to the shed to close the door and looked inside the shed which is usually “pretty empty”. Upon looking in the shed, Ms Murdoch discovered clothing, which is now recorded in PSR M523151, in a pizza oven located inside the shed.
(ff)This clothing matches the clothes worn by the accused above when leaving the premises, walking along Dowling Street, Watson and then in the direction of [redacted] Dowling Street, Watson.
(gg)Constable Jessica Cox attended [redacted] Dowling Street, Watson after a report was made to police by Ms Murdoch.
(hh)Constable Cox catalogued and seized the above items and recorded these in PSR 523151.
(ii)Upon arrest, the accused was wearing a navy hooded jumper, dark pants which were cut-off at the knees and had discolouration consistent with bleach splatter.
(jj)Police, fire and ambulance services were called to the scene at the premises.
(kk)Forensic members and Crime Scene Investigators from the AFP attended the scene at the premises. These members were, Crime Scene Investigator Merrilyn Hurst and Search Precinct Examiner Rhiannon Collins.
(ll)Significant internal and external damage to the premises was occasioned by the fire. This was observed by investigators and is noted in the report provided by Ms Hurst.
(mm)A sketch diagram of the premises was drafted by Ms Hurst (not to scale) depicting room name designations and location of evidentiary markers.
(nn)The accused occupied Bedroom One of the premises.
(oo)An inspection was conducted by Neil Davis who attended the premises on 7 July 2022 at 3:00PM in the company of the informant. Upon inspection, Mr Davis concluded that there were electrical appliances in the premises.
44․The prosecution case at trial was that the accused deliberately lit the fire that occurred at 16 Dowling Street. The accused maintained that the prosecution had not excluded reasonable alternate hypotheses consistent with the accused’s innocence as to how the fire started.
Summary of evidence
45․I observe here that the evidence in this matter was not contested in significant respects. I have indicated the evidence I have accepted and relied upon as necessary to the determination of factual findings for example, in relation to the evidence of Mr Massey, Mr Coric, [redacted] and Mr Simson. The accused did not challenge the expertise of any of the witnesses called by the prosecution in relation to the nature and extent of the fire. Similarly, evidence from police officers was not the subject of direct challenge as to the truth of the evidence adduced from individual officers. Rather, counsel for the accused carefully approached cross-examination of expert and police witnesses on the basis that it would reveal shortcomings in the investigation, gaps in the prosecution case and limitations on what inferences could be drawn and what facts could be found, from the expert evidence. Unless otherwise stated, I have accepted the evidence from the expert and police witnesses. The real question in relation to much of the evidence adduced in this case was the extent to which it enabled the prosecution to exclude a reasonable hypothesis consistent with innocence, as distinct from whether the evidence was truthful or accurate.
46․I note here that the prosecution did not seek to rely on the conduct of the accused in placing his clothes into the pizza oven or fleeing police as evidence of consciousness of guilt, and I have approached my task in assessing the evidence consistent with that position.
Mr Massey
47․Mr Massey gave evidence that in July 2022 he was living at 16 Dowling Street, Watson, having been placed there by JHP. Living there with Mr Massey was Mr Incezdi and the accused. Mr Massey was in the ‘main bedroom’ of the house. Using the diagram drawn by expert Ms Hurst in her report, included in Exhibit P1, Mr Massey identified his bedroom as ‘Bedroom Three’. The accused, Mr Massey said, was in ‘Bedroom One’. Mr Massey recalled that he learnt of the fire at the premises through a text message he was sent from one of the JHP workers who he identified as “[Mr Simson]”, telling him there had been a fire. Mr Massey specifically recalled that he was in the kitchen of his partner’s residence in Moncrieff when he received the text message. He did not recall the date but he knew the day he learnt of the fire was the same day the fire occurred.
48․Mr Massey said he was at the house the night before and as he was subject to a curfew, he had to be there from 8:00PM to 6:00AM. He said he was “madly in love” with his partner at the time and everyday as soon as 6:00AM came he was out of the house. He could not recall whether anyone else was in the house the night before, frankly admitting that he was using ice at the time. He did not recall how he left the house that morning saying it could have been a lift with a friend or an ‘Uber’. He could not say from what door he left the house.
49․Mr Massey said his room was neat and tidy and that his bed would have been made. He had a basic room with a television, a double bed, a bar fridge and a chest of drawers. He described the bed as being on a low frame.
50․Mr Massey could not recall the lounge room furniture but thought it might have had a lounge. He said he was using the house for parole, and he was not there very much. He said, “it was all pretty basic”.
51․The front door and all the bedroom doors had an electronic keypad. He said he always made sure his room was locked as he did not want anyone else going in there. His partner had previously come to the house on occasion and he recalled her being there one time when he had to collect parole papers. He said she was never there without him, and she had never stayed the night there with him.
52․Mr Massey agreed that he knew the accused and that he had been into the accused’s room. He said the room was very messy with clothes everywhere.
53․Mr Massey said the heater in his own room was electric with a “bar” or a “rod” that would glow red when it was turned on. He considered that the heater was “dangerous”. He thought the accused had the same heater and perhaps he had even borrowed it from the accused. He was not sure if he had returned the heater to the accused. He did not think the heater had a protective grate on it. He said he tried to remember not to leave the heater on. He described thinking to himself, “did I leave the heater on?”, when he received the message that there had been a fire at the house.
54․Ms Massey frankly described that he was using ice heavily at this point. He said he knew that the accused was also using ice regularly. He described the accused as “not in a good state”. He was not sure if the accused was using ice intravenously or smoking it. He had heard that some users use a “metho” lighter because it does not leave soot.
55․Mr Massey identified photograph 156 of Exhibit P1 (Tab 9) as depicting his room and he thought the item on top of the bar fridge in the image might have been the heater he had described in his evidence.
56․There was no real challenge to the evidence of Mr Massey. I assessed him to be doing his best to assist the Court. He gave frank, candid evidence that did not appear to be rehearsed or contrived. He did not appear to be exaggerating in any way or interested in the position of the accused or the outcome of these proceedings. I accept his evidence.
Mr Coric
57․Mr Coric gave evidence that on 6 July 2022 he was working as a tow-truck driver. On that morning he described receiving a call from [redacted] who had he known for some years. [redacted] told him she was having an argument with her boyfriend, the accused, and asked him to come over.
58․Mr Coric said he had met the accused some weeks earlier and that the accused had helped him do a roofing job. He described going to an address in Watson, going to the backyard and seeing [redacted].
59․He said [redacted] said something to him about the accused and her having an argument and she wanted to get out of there. Mr Coric said the accused was inside. [Redacted] gave him a petrol tank or a “fuel cell” from her car that he had paid for at an earlier time and he put it in his truck which was parked at the front of the house. [Redacted] left the house. Mr Coric said while he was there, [redacted] did not go into the house. She told him that it was “just Jesse” inside the house.
60․Mr Coric recalled a conversation with the accused outside the premises. He said they started talking about work because the accused was to continue helping him with a roofing job. He observed the accused to be “a bit heated” and “a bit angry”. Mr Coric said he told him to calm down. He said the accused said he was “really angry” but did not say why he was angry. He described the accused as “frustrated”.
61․Mr Coric described the accused telling him that “he was going to burn the house down” and that he was “over [redacted]” which he understood to be a reference to [redacted]. Mr Coric said he tried to calm him down and they then moved to talk about other things. He thought the conversation lasted about 5 or 10 minutes. He said the comment about burning the house down came before he was able to calm the accused down. Mr Coric said the accused only made the comment once.
62․Mr Coric said that by the end of the conversation the accused’s responses were normal and he could follow what he was saying. Mr Coric said he shook hands with the accused and said, “I’ll see you on Saturday”, then got in his truck and left.
63․Mr Coric agreed he spoke to First Constable Powyer a couple of days after the incident on 8 July 2022. Mr Coric said his recollection as at the time of giving evidence was “alright” but that when he spoke to police after the incident, he remembered everything except the fuel cell.
64․Mr Coric said he now did not recall the accused saying that “he was going to kill himself” before he said he was going to burn the house down but accepted that is what he told police on 8 July 2022.
65․In cross-examination, he agreed that when he spoke to police, he did not tell them he had asked [redacted] who was inside, because he only knew that the accused was inside and did not know who else was inside. He agreed he did not go inside the house and would not have known who was there. He agreed [redacted] left in a station wagon and that she was by herself in that vehicle.
66․Mr Coric said his conversation with the accused went for about 5 or 10 minutes. He disagreed that it went for 40 seconds, saying it would have been longer, and that he would put it at about 5 minutes. He said the accused was upset and cranky. He agreed the accused appeared stressed out, though could not say if the accused appeared pale or tired.
67․Upon being shown a transcript of his interview with police Mr Coric agreed he told police the accused looked “pale” and appeared “tired and confused” and that he described the accused as “rambling shit”. He agreed he had told prosecutors in a meeting prior to the trial that the accused looked like a “mental case”. He also agreed [redacted] told him that the accused had “lost his shit”. He agreed that the accused was agitated, in a heightened emotional state and that the accused said, “this is all deja vu and I’ve been here before and it’s all happening again”. He agreed he told police that the accused was not making sense and said something to him about being “reincarnated”.
68․Mr Coric agreed that during his interaction with the accused he went quiet and put his head down and that is when he said something about wanting to kill himself. Mr Coric said he did not remember if what the accused said to him was “I feel like I’m burning. It would be easy to kill myself, but I don’t want to take the weak way out” but agreed that it was possible he could have said something like that.
69․Mr Coric agreed that he found out about the house fire for the first time when he attended the interview he participated in with police. He agreed that when he attributed the comment “I am going to burn the house down” to the accused, he knew there had been a fire at the house and that police were investigating the circumstances of the fire. He agreed that when he told police the accused had said he was going to “burn the house down” he could have been mistaken about the accused using those exact words, and it was possible that what the accused actually said was “I’m burning” as a reflection of how he was feeling.
70․Mr Coric agreed that at the end of the conversation, the accused had “calmed down” and seem more “normal” and “positive”. Mr Coric said “no way” would he have left the accused that day if he actually thought the accused was going to kill himself and/or burn the house down. The accused, he said, walked up the driveway and Mr Coric drove off.
71․In re-examination Mr Coric said, that as he gave evidence he did not in fact have a “100 per cent” positive recollection of the accused saying that he was going to burn the house down.
72․I accept the evidence of Mr Coric in relation to his attendance at the premises and his general description of what occurred. For reasons articulated later in this decision, I am not satisfied that I can rely on Mr Coric’s version insofar as the comment he attributed to the accused about him wanting to burn the house down.
[Redacted]
73․The accused is [redacted]’s current partner and was her partner at the time the offending is alleged to have occurred. The relationship began around 1 June 2022 and in July 2022 they were living together at 16 Dowling Street, Watson.
74․[Redacted] said she and the accused were living at the premises as well as “[redacted]” and another man who she did not know the name of. [Redacted] said she knows Mr Coric and had sold him a fuel cell. She said Mr Coric came to pick up the fuel cell from the Watson house. She did not recall who was at the house when he came to pick up the fuel cell.
75․She volunteered that she has memory issues due to a car accident she was in, issues with drug addiction (being with ecstasy, methamphetamine, and heroin), and a diagnosis of both bipolar disorder and attention deficit hyperactivity disorder (ADHD). [Redacted] said she was using methamphetamine at the time of the incident and that she would use it both intravenously and by smoking it. She described using methamphetamine with the accused but could not recall if they used methamphetamine together on the day of the fire. [Redacted] said she would have been “high” when Mr Coric came to pick up the fuel cell, as she was “always high”. [Redacted] stopped living at the Watson address on the day of the fire. She said she read about the fire on the ACT Policing website.
76․She recalled the accused contacting her after the fire and that he told her there had been a fire and that he was in the “psych ward”. The accused told her that the police had “beaten the shit out of him”. She agreed the accused told her about the fire and told her that “he didn’t do it”. It was her observation that the accused was not making a great deal of sense at the time of the conversation. She said at the time the fire occurred she was accessing a “day program” which was for methamphetamine use.
77․[Redacted] said she and the accused shared the bedroom at the Watson address and it had a bed, a heater and a fridge. She described the house as “pretty trashed” and that their bedroom was messy. She said the bar heater had nearly caused a fire previously when someone had left a jacket on it. She described the heater smoking and that the jacket had been pulled off the heater.
78․She said on the day of the fire she could not recall what the accused was doing at the house or the nature of their interactions. Prior to moving in with the accused and sharing the bedroom with him she was homeless, and she understood the Watson home to be the only accommodation available for the accused. She said had been living at the house for about one month before the fire occurred.
79․She said there were two or three heaters in the residence. She described a bar or element heater, a column heater and perhaps a fan heater. She said the column heater had bars across it that heated up to be red hot. She could not recall if that heater had a protective bar over it.
80․[Redacted] thought there were one or two power points in the room, and her and the accused used power boards to plug in their electrical items. She said the boards were “overloaded” describing this as “too many watts being drawn”. She described experiencing a lot of “brown outs” at the premises during which the lights would get brighter and dimmer. She said the fan heater used to “short-circuit” the system from time to time.
81․[Redacted] described the bedroom as having lots of clothes and items the accused had found “binning” – that is, things he had found in bins. She was also somewhat responsible for mess, she said. She described the bedroom as having a double bed and that it was a little bigger than a prison cell.
82․[Redacted] agreed that the accused was smoking methamphetamine and that he was not in a good state. She said he would talk about “vibrations”. She thought him to be unwell. He had accused her of tapping his phone and he appeared paranoid.
83․[Redacted] described using a glass pipe to smoke methamphetamine. The pipe is heated up and a “jetty” is used to light it. A “jetty” is a jet lighter and a metho lighter is a home-made lighter that is a small bottle with methylated spirits and a wick. She agreed that it does not create soot and burns at a lower temperature, which is beneficial for methamphetamine use. [Redacted] described the lighters as easy to forget about and dangerous because they can remain lit. [Redacted] said the “metho lighters” can blow up if they are left unattended or if a “block” develops. She said she had seen “metho lighters” blow up and items around the lighter catch on fire. She said she thought there would have been a metho lighter in their bedroom on the day of the fire. At the time the fire occurred she said both she and the accused were addicted to methamphetamine and that it was possible they used methamphetamine on the day and possible they used a “metho lighter” to do so. [Redacted] agreed her memory when she spoke to police was likely to be more accurate than her evidence at trial as it was closer in time to the event.
84․[Redacted] agreed that she left the house after she gave Mr Coric the fuel cell.
85․[Redacted] agreed she told police that someone had left a jumper on the heater the day before the fire occurred and that the sleeve had started smoking. She agreed she told police the power boards were overloaded and that she described the room as “cluttered”. She agreed that she told police the whole house was trashed including the accused’s bedroom. She described the accused as not being able to find things in his room and throwing things around to try and locate items in his bedroom. She described this as an almost “daily occurrence”.
86․[Redacted] could not recall the name of the other man in addition to “[Mr Massey]” who was living at the house. She could not recall who was in the house when she left it on the day of the fire. She said it was possible that the other man was in the house. Indeed, she offered that it was possible they were all in the house as the bedroom doors were shut and she would not have known who was there. She said quite often the bedroom doors would be closed and residents would have other people in their room with them.
87․When describing the accused as being “unwell” at the time the fire occurred [Redacted] said the accused thought that the “house was evil”. She said he talked about “patterns and vibrations”, that he thought he was being followed and thought that she had tapped his phone and rigged the lotto.
88․Despite some limitations to the reliability of her evidence due to her poor memory, in general [redacted]’s evidence about the way the room was set up was consistent with other observations made by other witnesses as to the state of the bedroom occupied by the accused. [Redacted] was matter of fact and completely candid, in my view, as to their use of methamphetamine; both in terms of volume and mechanism. Her evidence did not appear to me to be rehearsed or contrived. [Redacted], despite her connection to the accused did not appear to be deliberately tailoring her evidence to assist him. Her evidence about the use of heaters was consistent with Mr Massey. I accept her evidence in relation to the state of the accused’s bedroom, their use of methamphetamine, her observations of the accused, her description of previous issues with the electricity and the heater in the accused’s bedroom, and her interaction with Mr Coric.
Mr Simson
89․Mr Simson was employed by CatholicCare as a case worker for the JHP for people coming out of prison who needed to access accommodation. He said those accessing the JHP did not have any other accommodation and were often on parole or otherwise released from custody. As part of his role he managed four JHP properties, one of which was 16 Dowling Street, Watson. He interacted with the residents at that property who were the accused, Mr Incezdi and Mr Massey. His role included the development of case plans and support for the residents. He would attend the property often; if not every day, then every second day and would go inside almost every time he attended the property. He said this was balanced with a degree of privacy and the views of the residents.
90․He agreed that the accused’s bedroom was messy, with clothes strewn everywhere. He said there was one occasion where he looked into the accused’s bedroom and observed that a heater had been left turned on. The heater had a nylon jacket on it. He said he considered this to be a fire risk and that he turned the heater off. He agreed he told police it was hot. He agreed he told police he raised this with the accused and that the accused was not receptive to the interaction. He agreed his impression was that he didn’t know if the accused was taking on board what he was saying. While he could not specifically remember the interaction, he agreed that it was what he told police, and he had some memory of it occurring. Mr Simson agreed it was possible there was more than one heater in the accused’s bedroom.
91․On the day of the fire, he learnt of it when he attended the property and saw that police were at the premises. He agreed that he contacted Mr Massey and gave him news of the fire.
92․He described Mr Massey as “dropping off a bit” prior to 6 July 2022 and Mr Incezdi as having “really dropped off” in terms of accessing support through the program. He said this had reached the point where there was consideration of Mr Incezdi being exited from the program. He agreed he told police that prior to 6 July he had not seen Mr Incezdi for “weeks and weeks”. Mr Simson described the accused as accessing some supports and that he had taken the accused to some appointments. He could not recall describing the accused as being at the house all the time. He agreed at the time he gave his statement to police on 7 July his memory of events in the lead up to 6 July was more accurate than his memory while giving evidence. Mr Simson was aware that all three residents had been released from custody to the accommodation. He agreed he told police that the accused had been at the residence for about a month when the fire occurred.
93․He accepted that while he had not seen Mr Incezdi for many weeks as of 7 July, this did not mean that Mr Incezdi was not ever at the premises, because there were days he himself did not attend the premises. He said he was not aware of the accused having any other accommodation available to him. The accused’s bedroom contained his belongings. Mr Simson was aware that the accused had what he described as “drug issues”.
94․Mr Simson was taken to the transcript of his interview with police and agreed it contained a description of a visit he made to the house on 5 July 2022. He said the screen door on the premises could only be locked from the inside and it was unlocked which made him think that someone was home. There was a keypad to open the main door. He tried to push the door open, and the door was being prevented from being opened by the accused. He said the accused said he had COVID and that Mr Simson could not come in. Mr Simson agreed that the accused looked unwell and had lost weight when he was already “pretty thin”. Mr Simson agreed the backyard of the property was fenced and that the back fence was approximately 1.7 to 1.8 meters high, with the side fence shorter than the main back fence.
95․There was no basis to reject any of Mr Simson’s evidence. He was not challenged on any substantive aspect of his version of events. I accept his evidence and am satisfied that I can rely on it as truthful and accurate.
Ms Hurst – Crime Scene Investigator
96․In July 2022 Ms Hurst was a Crime Scene Investigator with ACT Policing. On 7 July 2022 she attended the fire at 16 Dowling Street, Watson and prepared a report that formed part of the prosecution tender bundle (Exhibit P1). Ms Hurst clarified that the numerous photos included in her report were not taken by her but by another Crime Scene Investigator at her direction. The report also included summaries of notes she made at the scene.
97․Ms Hurst observed that the least amount of fire damage was occasioned to the external front and western walls of the premises, that there was moderate fire damage to the northern wall and the most damage to the eastern wall. The windowpane to the toilet window was damaged, with thermal ‘crazing’ consistent with heat damage observed. Smoke staining was observed around the upper frame. She considered that the staining was consistent with the windows being closed at the time of the fire.
98․Damage was observed on the front entrance doors, which were open at the time of examination and which Ms Hurst considered was consistent with forced entry. There was minimal smoke staining, consistent with the doors being closed at the time of the fire. The windows in the kitchen were thermally crazed but still intact, with minimal smoke staining indicating the windows were closed at the time of the fire. There were holes observed in the roof tiles near the kitchen. Fire patterns found in the laundry were also consistent with the windows being closed at the time of the fire. A paint can and a bottle of methylated spirits were found in the recycling bin at the property.
99․Smoke staining was observed around the entry door to the laundry, consistent with the internal door being open at the time of the fire. There was also smoke staining around the living area windows consistent with them being closed and intact at the time of the fire. The window into the bedroom at the rear of the premises had some damage and thermal crazing and there was smoke damage to the surrounding timber, consistent with the window being open at the time of the fire. There was glass on the ground which was smoke stained and thermally damaged. There was no indication the window had been broken prior to the fire. A fingerprint examination was conducted on the windows.
100․Minimal smoke staining and thermal crazing was observed around the windows in the eastern bedroom, consistent with them being closed at the time of the fire. The greatest external fire damage was observed in this window. The timber frame was charred, and melted glass fragments remained in the pane. Some glass had fallen onto the ground underneath the window and was thermally damaged. The eaves and adjacent fence also had fire damage. The external metal flyscreen had come off and had some minimal smoke damage. There was no evidence to indicate the window has been damaged prior to the fire.
101․The least damage was to the western end of the premises, with moderate damage to the rear centre and the greatest internal damage to the bedroom in the southeastern corner. There was some smoke and other heat damage in the rest of the house, including the kitchen. There was smoke damage in the laundry (in the north-western corner), and smoke and heat damage in the living room.
102․A bleach bottle with a missing lid was located in the living room and there was bleach damage to the surrounding area, including on the floor, couches, and clothing. Smoke damage was consistent with the bleach-stained items being present at the time of the fire.
103․There was fire damage to the hallway, with the least at the western end and the most at the eastern end. There was damage to the ceiling, with panels missing and charring to the beams within the roof cavity. There was smoke damage in the bathroom and heat damage to the ceiling. There was a smoke alarm on the floor. There was smoke and heat damage in the adjacent toilet.
104․In Bedroom Two, there were fire patterns consistent with the door to the bedroom being open at the time of the fire. There was smoke staining on the walls and heat damage to upper areas of the room. There were remains of a fire damaged mattress in the room. The ceiling was damaged. There was charring to the beams within the ceiling cavity. The most damage was on the western wall and the least on the eastern wall. The lowest area of burning was towards the base of the mattress. Ms Hurst determined that the fire damage to the floor underneath the hole in the ceiling was consistent with the fire coming from below the ceiling beams as opposed to spreading through the cavity. The greatest damage was under this cavity. The mattress was severely damaged. The smoke “horizon” on the walls was at the level of the top of the mattress. Other areas on top of the dresser at this height were fire damaged. Due to various items on the floor being disturbed, likely during the extinguishment of the fire, Ms Hurst said it was difficult to ascertain the exact origin and spread of the fire. No ignition sources were observed.
105․There was smoke and heat damage in Bedroom Three and the entrance door was consumed by fire with some remains attached to the frame. This was consistent with it being closed during the fire. The ceiling immediately inside the room was damaged but no damage was observed to the ceiling cavity.
106․Bedroom One had the greatest fire damage and Ms Hurst considered it was an area of origin for the fire. The entrance door was mostly consumed by fire, but the remaining hinges indicated it had been open at the time of the fire. There was significant fire damage from floor to ceiling, with the walls and ceiling consumed by fire and insulation exposed. There was a chest of drawers, a heater, and a bed. There were personal items strewn throughout the room, all extensively fire damaged. The damage indicated the room had reached “flashover” meaning all combustible fuels had ignited. Debris was removed to examine the damage. Due to the extent of the damage, no clear burn patterns were observed to indicate a point of origin, meaning the location where the fire starts.
107․No odours of ignitable liquids were detected. Some electrical items in the room were examined. They included a power board, with a lamp and extension cord plugged in. There was a heater, but it could not be determined if it was plugged in or not due to the damage. There was no obvious damage to the heater that might suggest items on top of it had caught fire. No point of origin could be determined. There were no burn patterns in the hallway connecting the areas of fire damage.
108․Ms Hurst concluded that Bedroom One was an area of origin for the fire. She considered that the fire damage in Bedroom Two was consistent with the fire coming from below, rather than spreading through the ceiling cavity from Bedroom One. She could not determine if the mattress in Bedroom Two had ignited due to radiant heat from Bedroom One or due to a second point of ignition within Bedroom Two. She could not rule out a second area of origin.
109․Ms Hurst gave evidence at trial that as fire burns it can leave certain patterns behind. The longer a fire burns, the patterns can become obscured by further burning on top of them. In this case, due to the extent of the burning, investigators were not able to identify the point where the fire was first ignited. If the fire is put out or stops burning you can see a ‘V’ pattern. Fire can travel up and out due to other radiant heat, so a ‘V’ pattern may also be present due to the spreading of the fire. The point of origin of a fire may be the lowest point of burning within a room. Fuel load and ventilation can also affect the patterns created by the burning of the fire.
110․Ms Hurst agreed in cross examination that there was no way to identify when the fire started. She agreed that non-flaming smouldering can be the beginning of a fire that can develop into a larger fire, and there are different stages of a fire. She agreed it is not possible to say how long a particular state goes for and there are a number of factors that can influence this. The two main variants are ventilation and fuel load.
111․Ms Hurst agreed that the appearance of smoke outside a house is not necessarily an indicator of the time a fire started. When smoke appears can be influenced by the size of the room in which the fire started, whether rooms are open or closed, the type of ventilation and the weather, such as the direction the wind is blowing.
112․Ms Hurst described that indicators of items igniting that were in close proximity to a heater would be debris around the heater and burn patterns but in this instance, because of the extent of damage in the room, she could not say whether those kinds of indicators were present.
David Bremers – ACT Fire and Rescue Incident Commander
113․Mr Bremers attended the fire with ACT Fire and Rescue and later prepared an incident report and handover form, with the investigation subsequently handed over to the AFP after the fire was treated as undetermined. While he identified a point of origin, the cause and nature could not be determined.
114․In his report, Mr Bremers detailed that as he was arriving on the scene, he observed smoke of a darker colour, indicating a house fire. At the house, fire crews observed a working fire on one corner of the house. There was an increasing amount of smoke coming from the house and roof. The fire was contained and put out by fire crews.
115․There was an “obvious” burn mark observed on the wall of the corner bedroom, which was initially identified as the point of origin of the fire. The bed was observed to be proximate to the point of origin. The report included photographs of the damaged interior of the house and the identified point of origin.
116․He gave evidence that there was a “well involved fire” at the time he attended. The indicators of this were large flames from the right-hand side of the premises and smoke coming through the roof tiles.
117․Mr Bremers gave evidence that his skills as a Level One fire investigator were limited to investigating fires that are contained within the room of origin. He identified the room of the origin of the fire as Bedroom One, with the place of origin being near the mattress.
118․Mr Bremers clarified that the time of 12:01:12PM in this form is a reference to the time the call about the fire was made, not a reference to the time the fire started. He stated that only a Level Two fire investigator has the skills to identify the time of a fire. Further, identifying the actual source of the fire is outside of his scope of a Level One investigator, but he considered it to be proximate to the mattress in Bedroom One.
119․Mr Bremers agreed that generally, overloaded power boards and items left too close to a heater can cause a fire risk. He agreed that mattresses generally have a high “fuel load”.
120․Mr Bremers gave evidence that different stages of a fire include first ignition through to the developing fire, flashover, a fully developed fire and then a period of decay. Based on his level of investigation, he could not make a determination on how long each stage went for in this fire.
121․Mr Bremers agreed that different factors can impact the capacity for smoke to become apparent outside a structure. These factors could include ventilation, the weather, the size of the room and the location of the room inside a structure. He agreed that the appearance of smoke outside a structure is not always a reliable indicator of the time of the ignition of the fire.
122․Mr Bremers explained that there are fire control and smoke segregation items such as a door seal that might impact the movement of smoke. There was no evidence that this structure did or did not have those kinds of items fitted.
Mr Davis – Electrical inspector for Access Canberra
123․Mr Davis attended 16 Dowling Street, Watson on 7 July 2022. Part of his role is to attend after a fire and assist the AFP forensic investigation with anything of an electrical technical nature. He has expertise in relation to determining electrical faults. His role includes making observations and examining electrical items at the scene. He explained that he examines wiring that may have shorted out or overheated which would then cause abnormal heating in the vicinity if that was the point of origin for the fire.
124․Mr Davis observed in Bedroom One that there was a fridge, a jug, a heater, and a double socket outlet. It could not be determined if the outlets were switched on. The double socket outlet had a lamp and power board plugged into it. Mr Davis found no evidence of overheating or shorting at the socket outlet. The lamp and power board were too badly damaged to make any determination. From the power board, there was an extension lead to another power board on the same wall in the opposite corner of the bedroom. This second power board had the fridge and jug plugged into it. There was also a heater near the second power board, however the lead was too badly damaged to ascertain if it was originally plugged into the power board. These appliances were badly damaged by the fire, and accordingly could not yield evidence of an electrical fault.
125․Mr Davis described that Bedroom Two had fire pattern damage to the underside of the roof trusses and batons in the centre of the room. There was a light fitting near this area, which was badly damaged by the fire, and accordingly, no evidence of electrical fault could be found.
126․The internal switchboard had been upgraded to residual current device protection of the sub circuits. Three of the sub circuits were tripped, however due to smoke damage, Mr Davis was unable to determine what circuits they controlled.
127․Mr Davis stated that a fire might ignite from a bar heater due to items making contact with the heater if it was on. He provided examples of that kind of heater tipping over and touching something flammable that ignited, or a flammable item being placed on it and igniting. He said he was not an expert on bar heaters, but that he understands they sometimes have a safety feature where if they reach a certain point in temperature or tip over, they automatically switch off. He agreed he did not have the expertise to speak to an item’s capacity to ignite where it was not physically touching the heater.
128․He confirmed his report identifies that there was no evidence of an electrical fault. He agreed this opinion does not rule out an electrical fault as the source of the fire. Mr Davis explained that incidents where electrical fault could be entirely ruled out are very rare because of the impact of fire damage on the capacity to collect evidence and make determinations. He agreed that his sketch site layout may not list every single electrical item in the room and that it is entirely possible there were electrical items in the room not included in his report.
Constable Robert Wright
129․On July 2022 Constable Wright was working with Constable Samuel Mickelson. He heard a radio transmission and went to 16 Dowling Street, Watson around midday. When he arrived, he observed flames and smoke from the right-hand side of the house. He attended the rear of the residence and knocked on the windows. There was no response to those efforts. Shortly after, ACT Ambulance attended. People had begun to mill about, and he had a conversation with an Australia Post worker. The worker said he was delivering mail when he saw a tow truck and a vehicle leave the house and he saw a male walking away from the house and moments later saw smoke coming from the right side of the house.
130․Constable Wright described hearing another police radio about the man who had left the house and that he was now in a foot pursuit on the green belt on Dowling Street. He then observed a man running away from two AFP members about 50 meters away. Constable Wright gave chase and eventually approached the man who he later learned was the accused. Constable Wright observed black ash on the accused’s hands and that he smelt of smoke. He said the smoke smelt like a bonfire rather than a cigarette. Constable Mikelson arrested the accused, and a search was conducted of him. He was placed in a caged vehicle and transported to the ACT Watch House.
131․He recalled that the accused stopped voluntarily when he was pursued and laid face down on the ground and was then arrested. He agreed he could be wrong about the observation of “ash” on the accused’s hands. He made notes in his AFP notebook on the day describing it as a “black ash-like” substance. He did not recall seeing an ash-like substance on the accused’s face but agreed if he had observed as much, he would have recorded it in his notebook and statement. Constable Wright was not aware that prior to his arrest the accused was observed rummaging around in a dirt patch. He agreed he could not say that the substance he observed on the accused’s hands was not dirt.
132․The next day Constables Wright and Cox attended [redacted] Dowling Street after a resident reported finding clothing in their pizza oven in the back shed of their residence. The clothing consisted of a blue coat, green pants, Oakley sunglasses, a grey jumper, blue jeans and a grey-white scarf. The clothing was photographed where it was found in the pizza oven and then seized. Constable Wright did not have his body-worn camera turned on when he did this.
133․Constable Wright agreed that the pizza oven at [redacted] Dowling Street was a used pizza oven and was not clean. He identified the pizza oven in the photos forming part of Exhibit P1. He agreed that the pizza oven did have a black ash-like substance in it when the clothing was found and that the smell of smoke on the accused could have come from having his hands being in the pizza oven when he put his clothes there. He could not recall if he smelt smoke when he went into the shed where the pizza oven was located.
134․No one was home at [redacted] Dowling Street, which was the neighbouring property on the side where the fire appeared to be coming out of 16 Dowling Street.
Constable Samuel Mickelson
135․Constable Mikelson was working with Constable Robert Wright on 6 July 2022. He attended the fire with Constable Wright at 16 Dowling Street, Watson and saw fire coming from the house. He got out of the police vehicle and activated his body-worn camera. Neighbours who were out on the street told him no one was home at 16 Dowling Street and that a man had left via the back door a short time before police arrived.
136․A resident, Mr Young, approached Constable Mickelson and told him that he had recently called police to report a suspicious person walking around on Dowling Street. Mr Young told him he had observed the suspicious person come out of 16 Dowling Street after the fire had started. Constable Mickelson heard a radio transmission that a man was running south on Dowling Street, and he saw a man running about 50 meters away with two other police officers in pursuit. Mr Young yelled out, “that’s him”. Constables Wright and Mickelson gave chase and Constable Mickelson yelled out to the accused to stop and he did and laid down on the street.
137․The accused was wearing green three-quarter length pants, a hooded jumper and he had no shoes on his feet. He described the accused as having dirty, grubby hands and soot-like residue around his face. The accused smelt heavily of smoke. He described the smell of smoke as similar to when a person stands near a campfire and the smell of smoke gets into their clothing. Constable Mickelson arrested the accused for arson and cautioned him. Plastic bags were put on the accused’s hands and sealed with evidence tape. The accused was put in a caged police vehicle and transported to the ACT Watch House.
138․The body-worn camera footage from Constable Mickelson was played. The evidence of Constables Wright and Mickelson in terms of what they did and the sequence of their actions upon arrival is consistent with what can be observed on the footage. Constable Mickelson agreed the accused said that he had been kidnapped after he was arrested.
210․For the reasons that follow I am satisfied on the balance of probabilities that at the time the accused engaged in the conduct establishing the offence that he was suffering from a mental impairment that had the effect that 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): s 7.3(1) Commonwealth Criminal Code. I am satisfied that the accused is not criminally responsible for the offence of trespass only because of a mental impairment. Accordingly, a special verdict must be entered: s 7.3(5), Commonwealth Criminal Code.
211․The Commonwealth Criminal Code defines mental impairment in the following way:
7.3 Mental impairment
…
(8)In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9)The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
212․I note this definition is in almost identical terms to s 27 of the ACT Criminal Code where mental impairment is defined.
The medical evidence
213․The prosecution tendered expert reports in relation to the accused’s mental impairment from Dr Olav Nielssen and Dr Adam Martin. Neither doctor was required for cross-examination.
Report of Dr Nielssen
214․Dr Nielssen provided a report dated 20 June 2023 on instruction of the accused’s solicitor. Dr Nielssen had access to the case statement, the accused’s criminal history, police statements of Officers Grabt, Wright and Higgins, a transcript of the record of conversation with Mr Coric, a letter from a Ms Smith from ‘Wellways’ dated 6 February 2023 and various clinical and medical records of the accused. He viewed body-worn camera footage of the accused’s interactions with police and his arrest. He also undertook two remote interviews with the accused.
215․During his interviews with the accused, Dr Nielssen noted that the accused had marked motor restlessness which he noted is a side effect of antipsychotic medication. He considered the accused’s emotional responses were restricted in range, and that his answers were brief and concrete, consistent with “the poverty of thinking of a chronic form of schizophrenia”. The accused reported persistent auditory hallucinations and described what seemed to Dr Nielssen to be a persistent delusional belief that he had been followed when out of prison. He appeared restless and easily distracted but maintained attention for the length of the interview.
216․Dr Nielssen took a personal history from the accused, as well as a psychiatric, medical and addiction history. This history revealed that the accused had struggled with mental health problems for significant periods. The accused reported that he believed that some of his family members also suffered from schizophrenia. He told Dr Nielssen that he had been admitted to mental health wards three times, that he had been on a Psychiatric Treatment Order requiring medication by injection, that he had previously contemplated suicide and that he experienced hallucinations of voices and “shadow people”, as well as persecutory fears.
217․Dr Nielssen also reviewed the accused’s clinical mental health records, dating from when the accused was 15 years old and engaged with child and youth mental health services for conduct and aggression problems. He commenced treatment for schizophrenia in 2020 and was admitted to the Adult Mental Health Unit in July 2022 for an acute episode of schizophrenia, after the alleged offending occurred. He was transferred to the AMC from the mental health unit and was receiving medication. Prior substance abuse was noted, and the accused had resumed buprenorphine treatment in the AMC. The accused reported auditory hallucinations and at other times that these hallucinations had ceased with treatment and that he felt “calmer” in prison. In January 2023, Dr Wareing noted diagnoses of schizophrenia and attention deficit hyperactivity disorder (ADHD).
218․Dr Nielssen’s diagnosis of the accused is that he has schizophrenia and polysubstance use disorder based on the symptoms and treatment described by the accused, his clinical records and his presentation during the interviews. He noted in particular the accused’s acute episodes and the prescription of anti-psychotic medication, and the accused’s abnormal emotional responses and communication. The diagnosis of the substance use disorder was based on the accused’s account of abuse of illegal drugs throughout his life. The complications of this abuse include the earlier onset and less favourable course of his chronic mental illness. He considered the behaviour leading to the diagnosis of ADHD by Dr Wareing was better explained by the neurological effects of schizophrenia.
219․Dr Nielssen interviewed the accused about the offending. The accused denied responsibility and reported that at the time his paranoia was preventing him from attending appointments and he was self-medicating with methamphetamine instead. He stated he “thought [he] had been reincarnated and that [he] had been there seven years earlier…with the voice and the shadow people [he] was seeing” and said he was “delirious…not in control”. Once he was again transferred, this time to a secure hospital ward from the AMC, and medicated, his symptoms abated but he still experienced auditory hallucinations.
220․In terms of the defence of mental impairment, Dr Nielssen offered the following opinions:
(a)That at the time of the alleged offence, the accused was affected by an acute exacerbation of his severe and chronic mental illness, due to his abstention from his medication and use of methamphetamine which would have aggravated his underlying mental illness.
(b)That although the accused denied deliberately starting the fire, if he had done so, he would likely be considered as being aware of the physical nature and quality of his conduct in doing so. Dr Nielssen noted the high threshold for loss of awareness in this limb of the mental impairment defence.
(c)That he was unable to reason with a moderate degree of sense or composure about the wrongfulness of his actions due to the effect of his schizophrenia on his ability to reason.
(d)That the accused was deprived of the ability to control his behaviour due to the persecutory beliefs arising out of his mental illness.
(e)In terms of intention and recklessness, he considered that the accused’s actions were difficult to explain rationally and were likely because of his mental illness which produced hallucinations and frightening delusional beliefs. Similarly, that any recklessness would be due to the impairment in the accused’s capacity to think logically and consequentially which also arises from his mental illness.
Report of Dr Martin
221․Dr Martin provided a report dated 6 November 2023 on instruction of the Office of the Director of Public Prosecutions (ODPP). Dr Martin had access to documents provided by the ODPP. Dr Martin conducted a remote interview with the accused. He also had access to the report of Dr Nielssen.
222․During the interview, the accused told Dr Martin that his mental state was “up and down”, that he is medicated for schizophrenia and frequently hears and sees things and is often paranoid and anxious. Dr Martin observed that the accused was thought disordered, lacked coherence and it was challenging to obtain a reliable narrative from him. The accused reported that his sleep was often impaired and that he hears whispering voices outside his head of a paranoid nature, and this has occurred for many years. He occasionally experiences thought interference. He reported a “patchy memory”. Dr Martin observed the accused to be significantly restless, with fast, mildly pressured speech, which was sometimes difficult to follow. The accused provided a rambling and somewhat “scattered” narrative, and his affect was “blunt”. The accused described ongoing persecutory ideation, auditory hallucinations and delusional beliefs regarding a syndicate which he believed was persecuting him.
223․The accused is currently on anti-psychotic medication, medication for ADHD, and buprenorphine injections.
224․Dr Martin outlined the accused’s psychiatric history, drug and alcohol history, medical history and personal history including his time spent in custody, which was similar to Dr Nielssen’s account. He spoke of a previous suicide attempt and provided a similar history of frequent and prolonged substance abuse.
225․When questioned about the offending, the accused denied lighting the fire and provided details of his mental health at the time. He was not taking his anti-psychotic medication. He described beliefs about bugs and cameras in the house, that he had been reincarnated, that shadow people were out to get him, that there was a syndicate following and recording him, and that he thought his partner was involved in a scheme against him. He said that he believed the police arresting him were involved in the syndicate and described feeling paranoid and experiencing hallucinations in the lead up to the alleged offending.
226․Dr Martin considered that the accused had a diagnosis of chronic schizophrenia complicated by his substance use disorder. Dr Martin detailed the various psychotic phenomena reported by the accused and described these beliefs as typical of chronic paranoid schizophrenia. He also considered the accused’s long history of mental health unit admissions, treatment orders and prescription of anti-psychotic medication as markers of a severe mental illness. Dr Martin also considered his observations of the accused during the interview as consistent with chronic mental illness.
227․Dr Martin was of the view that the accused suffered from a mental impairment within the meaning of s 27 of the ACT Criminal Code at the time of the alleged offending, exhibiting behaviours such as paranoia, disorganised thought processes and emotional dysregulation against a background of mental illness complicated by substance use. Dr Martin considered that it was highly likely that the accused was psychotic at the time of the offending.
228․Dr Martin thought it likely he understood the nature and quality of the conduct in which he engaged. However, Dr Martin considered that the offending was directly linked to his mental illness. As such, he was of the view that the accused would not have known that the conduct was wrong. Dr Martin thought it more likely than not that he was labouring under extreme mental disturbance manifesting in persecutory delusions, thought disorder and hallucinations which impacted on his ability to think reasonably, calmly or consequentially. Dr Martin considered that the accused would have had highly disturbed judgment and considered that his mental impairment would have had an extremely detrimental effect on his capacity to form an intention to engage in conduct. He agreed with the findings in relation to mental impairment and the diagnoses of Dr Nielssen.
Conclusion on mental impairment
229․Both experts unequivocally concluded that the accused suffers from schizophrenia, which is a mental impairment as defined in the Commonwealth Criminal Code: s 7.3(8).
230․Both experts concluded that at the time he engaged in the conduct the accused could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong due to the effect of his schizophrenia on his ability to reason. Dr Nielssen specifically considered that the accused was deprived of his capacity to control his conduct due to the persecutory beliefs he experienced because of his mental illness.
231․The accused’s use of illicit substances, while referenced by both experts, does not cast any doubt on the certainty of their view with respect to his diagnosis of schizophrenia. It is, of course, not an uncommon circumstance to see those who suffer with serious and chronic mental illness use illicit substances, the consequence of which can be difficulty separating the cause of specific behaviour. That is not the case here, in that both experts were unequivocal that the accused suffers from schizophrenia, the symptoms of which were operating at the time he engaged in the conduct.
232․I am satisfied on the balance of probabilities, based on the unchallenged and entirely consistent opinions of the experts that the accused’s schizophrenia had the effect that he did not know that his conduct was wrong. Accordingly, he is not criminally responsible for his conduct in respect of the offence of trespass: s 7.3 Commonwealth Criminal Code.
Consequential orders
The trespass charge
233․The prosecution submitted that this charge should be dealt with pursuant to s 20BJ of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) which relevantly provides:
20BJAcquittal where person mentally ill
(1)Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(2)The Attorney‑General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1).
(3)Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation.
(4)Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5)The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b)a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.
(6)Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
234․While this provision purports to apply to offences on indictment and this offence is one transferred from the Magistrates Court pursuant to s 88B of the Magistrates Court Act 1933 (ACT), the accused correctly identifies that “indictment” is defined in the Commonwealth Crimes Act at s 4A to include an “information”. As the charge commenced by way of information in the ACT Magistrates Court, the accused submitted s 20BJ is applicable to the trespass charge and that the accused should be discharged absolutely. The prosecution similarly submitted that absolute discharge pursuant to s 20BJ(4), noting the maximum penalty for the offence is 10 penalty units, is the appropriate outcome.
235․Noting the applicable maximum penalty of the offence, the circumstances within which it was committed and the time that has elapsed since the conduct was engaged in, it is my opinion that it is more appropriate to deal with the offence in a way that does not require the accused to be subject to any conditions on his liberty arising from these proceedings.
Verdicts
236․For the above reasons I return the following verdicts:
(1)The accused is not guilty on the count of arson (Count 1).
(2)The accused is not guilty on the charge of possess knife in a public place without reasonable excuse (CC2022/6812).
(3)The accused is not guilty on the charge of resist a territory public official (CC2022/6813).
(4)The accused is not guilty by way of mental impairment on the charge of trespass on premises without reasonable excuse (CC2022/8328). Pursuant to s 20BJ(4) of the CommonwealthCrimes Act I order the accused’s release from custody absolutely.
| I certify that the preceding two-hundred and thirty-six [236] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 24 May 2024 |
Annexure “A”
Onus and standard of proof
The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt then I must find him not guilty.
Fact finding
The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the facts according to the evidence, considering it logically and rationally. I may use my common sense, my individual experience and wisdom in assessing the evidence. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
Evidence by audio-visual link
A witness at trial gave evidence from a location remote from the courtroom connected to the proceedings by audio-visual link. This is usual practice. I must not draw any inference adverse to the accused and I must not attach any greater or lesser weight to the evidence of that witness because this practice was followed: s 68 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
Expert evidence
In this case, Ms Hurst, Mr Bremers and Mr Davis were called as expert witnesses. Reports containing the expert opinions of Mr Cho, Mr Simpson and Ms Maroney were tendered at trial by consent.
The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.
In the present case, expert evidence was admitted to provide me with information in the areas of DNA testing and analysis, fire analysis, identification of ignitable liquids, textile examination, electrical investigation and an opinion on these topics. These topics are within each witness’ expertise but are likely to be outside the experience and knowledge of the average lay person.
The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.
I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.
The accused did not give evidence
The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.
Circumstantial evidence
The prosecution case against the accused is circumstantial. There is no direct evidence of the accused deliberately lighting the fire at the premises.
The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused deliberately lit the fire can be drawn from the whole of the circumstances established to my satisfaction, by evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence.
In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative.
As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 sometimes a circumstantial case is described as a "link in the chain" case or as a "strand in the cable" case. Where the case falls into the former category, it may be necessary for the prosecution to prove some of the circumstances relied upon beyond reasonable doubt, because they are indispensable intermediate facts. In the latter category, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. It is not necessary for the various factual "strands" to be proved to that high standard. This is because of capacity of a body of evidence to have a cumulative effect. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts. The case against the accused is in my view, a “strands in the cable” case.
I remind myself that this case, reliant as it is upon indirect, circumstantial evidence does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case, has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused was responsible for deliberately lighting the fire has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.
‘Mahmood’ (Mahmood v Western Australia [2008] HCA 1; 232 CLR 397) direction
Mr Incezdi, a housemate of the accused at the time of the incident, was not called by the prosecution to give evidence at trial. I may take the fact that there was no evidence from that witness into account when I determine whether the prosecution has proved the guilt of the accused beyond reasonable doubt. I must not speculate about what Mr Incezdi would have said if he had been called. However I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.
Unreliable evidence direction - s 165 (Evidence Act) direction
I warn myself that the evidence as to the remark made by the accused to Mr Coric outside the premises on the day when the arson is said to have occurred, to the effect that he wanted to kill himself and burn the house down, is evidence of a kind that may be unreliable. The accused challenged the making of the remark. It is hearsay evidence, evidence of an admission against his interest, and evidence the reliability of which may be affected by the accused’s mental ill health. I inform myself that the accused was exhibiting signs and symptoms of mental and emotional instability at the time (including rapid speech, erratic and confused conduct) such that the comment attributed to him may not be a reliable reflection of his thoughts and feelings and could be a circumstance that adversely effected the truth of the admission. Further to this I warn myself that the evidence of Mr Coric suggested some, what I considered to be genuine, uncertainty as to the specific content of the comment. While Mr Coric initially reported to police that the accused said to him that he was going to burn the house down, he agreed in cross-examination that the accused could have said “I feel like I’m burning”.
Mr Coric confirmed in re-examination that he did not have a positive recollection at the time of giving evidence of the accused saying the words he initially attributed to him. I warn myself that when Mr Coric initially spoke to police and attributed the admission to the accused, he already knew that there had been a fire at premises after his discussion with the accused. I also note that Mr Coric described the conversation with the accused as going for 5 to 10 minutes when the CCTV footage reveals it was actually closer to 40 seconds. Further, Mr Coric did not initially mention the fuel cell to police, which was a feature of his purpose in attending the property. These are all factors that could influence the reliability of his hearsay evidence about the admission. I warn myself of the need for caution in deciding whether to accept the evidence and the weight that should be afforded to the evidence.
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