Elchaar & Anor v NRMA Insurance Limited

[1993] HCATrans 361

~

~ ·.;-~--·)I"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S53 of 1993

B e t w e e n -

YOUSSIF ANTONIOS ELCHAAR and

SAMIRA ELCHAAR

Applicants

and

NRMA INSURANCE LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Elchaar 1 19/11/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 10.51 AM

Copyright in ·the High Court of Australia
MR D.F. JACKSON, OC: If the Court pleases, I appear with my

learned friend, MR G.C. LINDSAY, for the

applicants. (instructed by Thomas & Eisley)

MR J.P. HAMILTON, OC: If the Court pleases, I appear with

my learned friend, MR I.D. ROCHE, for the

respondent. (instructed by Abbott Tout Russell

Kennedy)

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, copies of an outline of

submissions were placed with some papers while

Your Honours were outside.

Your Honours, as is apparent from the outline

of submissions, the case is one in which what is
sought is special leave on the basis of a
miscarriage of justice in the manner in which the

case was dealt with by the Court of Appeal and the

particular matters to which I would seek to address

some submissions are those which relate to the

issue referred to in paragraph 6 of our outline of

submissions that I have just handed to the Court,

namely, the approach taken by the members of the

Court of Appeal.

Now, Your Honours, the case was one, of

course, in which the primary judge had declined to
make a finding that the fire had been started by

the applicants. When the matter came to the Court

of Appeal that court set aside the finding on the

basis that there was no detailed explanation by the

judge of his reasons for that decision, and then

proceeded to make its own findings and found that

the fire had been caused by the applicants. That, of course, was a matter on which the onus of proof

lay on the other side.

Your Honours, the particular matters to which

we seek to address some submissions are those set

out in paragraph S(a), (b) and (c), and may I

proceed to do that, Your Honours, with a view to

demonstrating that it was not correct for the Court

of Appeal to take the views which it did about the

undisputed facts. If I could, first, Your Honours,

indicate the passage in the Court of Appeal's

reasoning to which I seek to direct those

submissions. Your Honours will see that in the

application book and, in particular, at page 26.

May I indicate to Your Honours where the whole of

the passage is. It is at page 26, commencing at

about line 22, and going through then to the bottom

of page 27 and through to page 28, about line 15.

Elchaar 2 19/11/93

Your Honours, may I indicate now the

particular matters in relation to that to which r intend to go? The first is that which appears at

page 26, lines 22 to 25, the reference to "vague

and internally inconsistent evidence".

Your Honours, the second matter is that if
Your Honours look at page 27, between lines 5 to

10, in discussing the fact that the fire was

deliberately lit, what was referred to was:

Some neighbours reported smelling something

like burning candles.

And the third matter, Your Honours, is the matter

which appears on page 27 again. At about line 21,

Your Honours will see His Honour said:

To summarise: the fire was deliberately lit -

and that takes us back to the preceding paragraph.

And then at the bottom of the page, reference to

there being:

no-one who gave evidence was able to give any detailed account of Mr Elchaar's whereabouts -

and then, Your Honours, that leading on to page 28,

about line 7:

The case is not one in which there is any

material conflict of evidence.

Now, Your Honours, the first matter to which I

seek to go is this: that Your Honours will see

that there is, for example, at the bottom of

page 27, the expression "over the hours during

which the fire started". That obviously conveys

the impression that there was some length of time
between the commencement of the activities to start

the fire and the fire itself, the expression, "over

the hours".

DAWSON J:  What does it mean, that it could have started at

any time during a period of time?

MR JACKSON:  Your Honour, that is a possible view of it, I

accept that immediately, but one does have to tie

that in, and I am sorry, tediously, in relation to

the evidence about the candles because that has no
relevance unless one adopts the view that the
candles may have been something started there to

delay ignition.

McHUGH J:  The phrase "delayed ignition", does that appear

in the judgment?

Elchaar	19/11/93
MR JACKSON:	No, Your Honour, but it is an expression I have

picked up from some evidence because the point

about it is that there was no evidence of delayed

ignition and what I would seek to demonstrate from

that is that what the evidence was was that in

various parts of the house there had obviously been

placed material to start a fire. The material

which would start a fire was material which caused

burning at the particular places where it occurred.

The evidence to which I am just about to go is

evidence that that burning could not have occurred

if that material had been in place for more than 10

to 15 minutes. What would have happened would have

been that it would have evaporated. Whilst there

might have been a fire, the fire would not have

been one that left the physical evidence that had

occurred. Thus, that leading to the view that the
start of the fire must have been a relatively short
time, 10 to 15 minutes before, as the evidence was,

the fire was extinguished.

BRENNAN J:  Is this designed to show that the Full Court

drew a wrong inference from the evidence? Is that

right?

MR JACKSON:  It is designed to show two things, Your Honour.

First, in relation to the particular point, it is

designed to show that the inference that was drawn

by the Full Court could not have been drawn and

that the view taken by the Full Court on this
aspect of it is simply to put together a number of

matters which the evidence just could not support.

BRENNAN J: That makes it a fact case, does it not,

Mr Jackson?

MR JACKSON: It is, Your Honour, in that respect.

BRENNAN J:  What makes it therefore a case which should

attract the grant of special leave?

MR JACKSON:  Your Honour, two things: the first is that the

approach taken by the Court of Appeal to these

facts was one where the court was itself acting as

the fact finding tribunal and, in our submission,

it simply got the basic facts wrong on which it was

acting. That is the first point.

The second point is - I have not come to this

yet - that what the Full Court did was to treat the

case as one which involved no conflict of evidence.

In fact, there were conflicts of evidence, and if

there were conflicts of evidence which were germane

to the ultimate conclusion which had to be arrived

at, then it was not proper, in our submission, for

the Court of Appeal to resolve those conflicts in

Elchaar 19/11/93

circumstances where the onus of proof lay on the

other side. If the conflicts had to be resolved by

the Court of Appeal, then the only way,

consistently with the burden of proof, was for them

to be decided in our favour. That is the second

point I want to make and that arises more

particularly in relation to the question whether

there was any evidence of forced entry.

Your Honours, if I could return for just a

moment to the point which I was seeking to make

first. Your Honours will see that the respondent

called as a witness a Dr Barrett who is an expert

in relation to, to put it shortly, the causes of

fire.	He had given a short report which is
exhibit 4.	I have to take Your Honours to the

material in the Court of Appeal but, Your Honours,

to volume 2 of it and to page 240.

DAWSON J:  Which exhibit is this, Mr Jackson? What are we

looking at?

MR JACKSON:	Your Honours should have been provided with the copies of the record books in the Court of Appeal.
It is exhibit 6, in fact, to the - - -
DAWSON J:	I see, yes.
BRENNAN J:	And page 240, you said?
MR JACKSON:	Page 240, Your Honour, yes.

BRENNAN J: Exhibit 4, is that right?

MR JACKSON: Yes, that is right. It consists of three

pages:  two pages of text and a diagram.

DAWSON J: Yes, I follow.

MR JACKSON:  Now, Your Honours will see, after the

introduction, that Dr Barrett said:

The outstanding feature of the fire is its

widespread nature and low level of charring.

He expressed his view:

the fire was extinguished within a very few

minutes and did not produce a well seated fire

anywhere.

You will see, Your Honours, going through the

remainder of the text of the report that he refers to the burning that had occurred in various places

and to "low level burning", and he says at the

conclusion of his report that he was:

Elchaar 19/11/93

of the opinion that the fire was deliberately

lit using a volatile solvent at various places

in the building.

At page 242, you will see that he has

indicated, I think, eight spots where he has got

the notation "LLB" meaning low level burning and

that was where the accelerant he said was placed

and the burning that occurred there was burning of

that.

Now, Your Honours, if I could just pause at that point then to say that in his oral evidence he

repeated his view that the fire was extinguished

shortly after it started. That appears in volume 1

of the same material at page 126G. At page 127,

his evidence made it clear that he thought the fire

must have started some 10 to 15 minutes after the

volatile material was placed at the several seats

of the fire. Could I invite Your Honours to look

at the question commencing at page 127E where the

proposition was put to him that it might "have been

spilled accidentally", and Your Honours will see in

the next answer that he refers to the evaporation
time of it.

Now, Your Honours, what that makes apparent is that, if one accepts that evidence, the material

was put on the floor some 10 to 15 minutes before

the fire started.

Your Honours, he was then re-examined in an

endeavour to show that there might have been the

use of some system allowing delayed ignition. Tha~

appears at page 131 letter O through to the top of

page 132. Your Honours will note in particular two

things: the first is that there would be an

expectation that there would be some remnants of

the material used to cause delayed ignition. That

is the first thing.	The second thing is that there
was nothing to demonstrate that the proposition
about evaporation would have changed.	Your Honours

will recall the burning to the wood suggested the
contrary.

Your Honours, when one went to Detective Sergeant Passmore's evidence which was the other

technical evidence about causation of the fire,

there was no evidence of delayed ignition. Could I

take Your Honours to page 107 of the same volume

and the last two questions and answers on the page.

Now, the "certain things" missing from the scene to

which he refers - Your Honours, perhaps I should

say the only evidence to identify the certain

things missing was that of Constable Dawson at

page 147R through to page 148D.

Elchaar 6 19/11/93

Now, Your Honours, Constable Dawson had been on the scene at about 2.30 am, the fire starting

shortly before that and Sergeant Passmore had not

been there till 11 am the next day.

BRENNAN J:  Does that mean that the things that

Constable Dawson saw were the things that Canosa

said were missing?

MR JACKSON: That Passmore said were missing.

BRENNAN J: Passmore said were missing, yes.

MR JACKSON:  Yes, but, Your Honour, could I just say that

Detective Sergeant Passmore was unable to say what caused the fire. That appears at page 95U through

to page 96J. That is where he gave evidence about

the start of the fire.	And then page 97 letter I
through to 97K.

Your Honours, could I just say that if the

evidence of Dr Barrett was accepted about the

evaporative effect of the material, then that would

make irrelevant the evidence about the smell of

candles. What I mean by that, Your Honours, is

this: if the fire was one that was caused by the

ignition of the evaporated gases, then there would

not have been, according to Dr Barrett's evidence,

the burning on the places where the material had

been placed.

Your Honours, the evidence about the smell of the candles was evidence which related to events

hours before and that that is so appears, clearly,

from the evidence of the two person who had the

smell of candles. The evidence on that point was that persons who lived across the road - a little

offset but across the road - had come home from

dinner at their club at about 11.30; the fire

starting two and a half hours later, at the

earliest. They smelt candles somewhere. That that

is so appears from the husband's evidence,

Mr Pruen, page 132. His evidence commences at P.

At the top of the next page there is the location

of their house. That is page 133. At letter 0,

they arrived home at about 11.30. Now,

Your Honours, in the passage that goes from there

through to letter I on the next page, there is the

strong smell of candles.

Now, Your Honours, at page 138P, it is

apparent that they were about 75 feet away from the

house which caught fire. And at page 139A to D,

the smell of candles might have come from anywhere.

BRENNAN J: Mr Jackson, where is this leading us? So, the

smell of candles had nothing to do with it?

Elchaar	19/11/93
MR JACKSON:	Yes, Your Honour.
BRENNAN J:	Where does that lead us?

MR JACKSON: It leads us, Your Honour, to this, that it is

entirely apparent, if I may say so with respect, if

one looks at the approach taken by the Court of

Appeal, that they treated the smell of candles as a

factor leading to the conclusion that the fire was

one which was deliberately lit. Your Honours, what

I am seeking to demonstrate, first of all, is that

in relation to that, the presence of candles was

quite irrelevant and the material did not suggest,

if one looked at the evidence, that it had anything

to do with it.

In looking at that aspect of it, they are

speaking of a kind of delayed ignition where at

some stage during the hours when the male

applicant is, in relation to which there is no evidence apart from the fact that he is at the

place where he is going to bed early and then when

the fire warning comes - - -

BRENNAN J:  The proposition on which the Full Court based

itself, as I understand it, is that the fire was

deliberately lit; that the accused was the last

known to leave the premises; that there was no

break-in; that the accused had the key and that the

centre of the fire was inside. Now, candles or no

candles, what touches that set out facts?

MR JACKSON: Just this, Your Honour, that if it be the case

that the fire was one and which must have started

10 to 15 minutes before the fire was extinguished,

which is a very short time and if it be also, as

the evidence was, that the male applicant came to

the scene with his son from the house where he was

staying, which was some distance away, and was

there at about 2.30, and that was quite shortly

after the fire brigade had arrived, then the

probability that he was the person who started the

fire and had somehow got back to where he was

sleeping is one that was significantly reduced.

BRENNAN J:	Reduced?
MR JACKSON:	Reduced, Your Honour, yes.

BRENNAN J: Then one would say, what are the inferences to

be taken from all of that?

MR JACKSON:  Indeed. One could draw inferences from it but

one should not draw inferences on the basis, as appears from the references at page 26 and 27 I

gave, that the Court of Appeal is adopting the view

Elchaar 19/11/93

that the fire in some way is likely to have been

started by the candles.

BRENNAN J:  Be it so. As I read the summary which is at the

bottom of 27 and 28, the question of the candles

does not appear there.

MR JACKSON:  With respect, Your Honour, if Your Honour looks

at page 27, line 21, it says:

To summarise: the fire was deliberately

lit.

What is being summarized is what is in the

preceding paragraph which includes all the matters

leading to that conclusion, one of them being:

Some neighbours reported smelling something

like burning candles.

Then, something was "melted down'' in the next paragraph.

DAWSON J: But all the expert evidence was that it was

deliberately lit, was it not?

MR JACKSON:  Yes.

DAWSON J: That did not entail reliance on candles at all.

MR JACKSON: No, no. Your Honour, there is no doubt about

the deliberate lighting and it was not something

that really was contested at the end of the trial.

But having said that, the manner of ignition - I do

not mean to make something unduly technical, but
the way in which the fire started was something
that was germane to the resolution of the question

whether the applicant had or had not said it. It

was easier to the draw the inference that it had

been set by him if there was something to support

the proposition that the fire was set by him

some time before the fire started, namely, for

example, by leaving a candle there and then that

taking its course.

What I am seeking to say is that the Court of

Appeal should not have adopted that approach in circumstances where the evidence demonstrated that

there would not have been a fire of the kind in

question causing the damage in question if it had

been started in that way.

McHUGH J:  Is there any evidence as to whether the low level

burning areas were still alight when the fire was

discovered as opposed to them having being burnt at

some earlier point of time?

Elchaar	9	19/11/93
MR JACKSON:	Your Honour, I think the answer is no.	I am

going to take Your Honours in just a moment to the

very short evidence of Mr Thurston who was the fire

brigade officer first on the scene. His evidence

was that the seat of the fire at that point seemed

to be at the front of the house but the evidence

seemed to be, Your Honour, that once the fire got

going it would not take very long for it to go to

various points.

Your Honour, I do not think the evidence

conveyed that someone, in effect, went along sort

of lighting it here, there and everywhere.

McHUGH J:	I just have not got in my mind a clear impression as to the extent of the damage of the house.
MR JACKSON:	Your Honour, the fire was got pretty quickly.

There was significant damage to the premises but

the fire brigade were on the premise - the house

was not destroyed and it was secured by the next

morning.

McHUGH J: But was the fire throughout the internal - - -?

MR JACKSON: Yes, Your Honour. You can see in the diagram

to which I referred at page 242 the indications of
the place where the low level burning had occurred.

I think one description of it in that report was

"as if a blow torch had been applied to paint" and

so on.

Your Honours, I am sorry to take so long about

the candles. Could I just conclude by saying this,

that if one looks at the evidence about them - I

have referred to Mr Pruen's evidence at page 139.

His wife gave evidence at page 142Q through to

143E and, again, she could not say where it was.

Now, Your Honours, that is the first thing.

The second thing is this: Your Honours will

have seen that the members of the Court of Appeal

said, in relation to the evidence given by Mr T.

Elchaar, a son of the applicants - this is at page

26 - that he:

gave some vague and internally inconsistent

evidence as to his father's movements but the

matter was left in an unsatisfactory state.

Your Honours, it is true to say that he was not

able to say what his father was doing the whole of

the evening but what he did say, in two passages to

which I will take Your Honours in just a moment,

was that his father was there at the house they
were staying at at the time he went to bed and at

the time when they were told of the fire, his

Elchaar 10 19/11/93

father was there and came with them to the fire.

Your Honours, that that is so appears at page 49H,

in the first place, in a passage which goes through

to the next page, again at H. Your Honours, at

page 78K to T - there must have been at K some

appreciation by the judge that there may have been

a misapprehension by the witness of the question

because Your Honours will see when one gets down to

Q, the judge says:

Just let me clarify some thing, when you say your father was at home, you mean in the house

you were sleeping in on that night or that

morning?

He says:

Yes your Honour, at the time I went to bed.

Q. Not your normal home? Q. That's right.

I am sorry to have taken a moment on this but what one does have, Your Honours, is a situation where,

at the time where the evidence showed clearly, if

that evidence were accepted, that the father was at

that place when the son went to bed and the father

was there when they heard about the fire -

DAWSON J: That would all be very impressive if the father

had given evidence, would it not?

MR JACKSON:  Your Honour, it was not the case where the onus

of proof was on him, and Your Honours will recall

it was a case - - -

DAWSON J:  No, no, but Jones v Dunkel is of some assistance,

and that was what was relied upon by the court.

MR JACKSON:  Your Honour, could I just say this, however:

the male applicant was a man who had a previous

conviction which was the subject of much

of the respondent, in relation to drugs some years	discussion, much enthusiasm at the trial on behalf
before and that was relied on as part of a very
large claim for non-disclosure. He was also a
person for whom ?nglish was not his native language and one could ur.-erstand, in circumstances like
that, bearing in mind what, in our submission, little evidence there was in fact, the decision be
made not to call him.

DAWSON J: Perhaps, but -

BRENNAN J: That is a decision with which, no doubt, he has

to live.

Elchaar 11 19/11/93

MR JACKSON:  Your Honour, has to live but could I just say

two things about that. The first thing is that

what one has to live with is that the absence from

the witness-box does not supplement evidence and

one has to live with circumstances where, in the

end, the onus of proof lay on the other side. But,

Your Honours, what one does have, of course, in the

particular case is that one accepts having to live

with whatever one's course of action has been but

in the particular case one only has to do so, we

would submit with respect, if the course taken by

the court in which the issue is being dealt with is

one which is appropriate. What I mean by that, in

particular, is the court should not get the

evidence wrong.

DAWSON J: But, really, when you boil it down, it is a

question of whether the fire was lit as a result of

some act of vandalism which is unexplained in all

the circumstances or whether, having regard to the

other evidence, the fire was deliberately - because

it was deliberately lit anyway - whether it was lit

by the father directly or indirectly, and that was

something which the Full Court recognized as being

the issue.

MR JACKSON: Yes, Your Honour.

DAWSON J: There was a lot of evidence about why the father

should have directly or indirectly lit the fire

which pointed in one direction and not much that

pointed in the direction of an indiscriminate act

of vandalism.

MR JACKSON:  Your Honour, could I just say two things. The

first is in relation to vandalism, and one does not

see the culprit - does not find them. But the

second thing is that in relation to the question

whether there was evidence of forced entry, which
was a critical matter, one might have thought, what

the evidence did disclose, on one view of it, was

that there had been forced entry; on the other

view, it disclosed there had not. Now, what we

would submit in relation to that is that that was a

matter of great significance which should not have

been decided by the Full Court adversely to us in

circumstances where it was not possible for it to

form a view one way or the other. Your Honours,

that is the point I would seek now to -

DAWSON J: But that would not be crucial, would it,

Mr Jackson? You say it would, I suppose.

MR JACKSON: Well, it would, Your Honour, if one is talking

about - could I put it this way, Your Honour: the

Court of Appeal regarded it as a matter of

Elchaar 12 19/11/93

importance.	You will see that from page 27, about
line 22.	They say:
To summarise: the fire was deliberately

lit;	there was no evidence of forced entry
into	the premises; the premises had apparently
been	securely closed -

and then you will see the whole of that page deals

with matters that relate to that.

Now, Your Honours, could I just come to the

forced entry question? What I wanted to say was

this: there was evidence which was consistent with

there having been a forced entry by some third

party to the premises. Could I go first to the

evidence of Mr Thurston who was the first fire

officer on the scene. That evidence commences at

page 113. You will see at page 114 he was

specifically asked about the condition of the doors

and, commencing at E:

Q. When you arrived at the premises what did

you see? A. The fire was, the premises was

weatherboard and the fire was at the front,

near the front door and on the roof.

Q. At the time of your arrival can you tell

us whether the front door was open or shut, or

what was happening? A. The front door was

opened, there was another person with a hose

at the front door, with a small hose.

Now, Your Honours, if one looked at that in the

abstract, perhaps one could say he is saying, "I

opened the front door" but, Your Honours, what he

was asked was whether the door was opened or shut.

He said, it was opened, there was someone there

with a hose. The other evidence suggested that was

a neighbour with a hose but there was no evidence

to say that neighbour had opened it.

Now, Your Honours, the passage goes through to

Q on the same page and he says, "the back door was

open we just walked through." Your Honours, if one

goes then to the next page, page 115, you will see

at letters T to V: there was no one else there

"apart from the gentleman with the hose" and the

owner arrived while he was there.

Your Honours, the next officer who arrived was

his superior, Mr Manning. His evidence is at

page 117.	He, at page 118G, felt he came in
"through the front door".	The son gave some

evidence of damage to the front door at the time

when he arrived. That was at page 78U and going

through to 79Q. His evidence about it may have

Elchaar 13 19/11/93

been caused by the firemen was necessarily hearsay,

of course.

Detective Sergeant Passmore, who got there the next day, at page lOOF to L, said that the damage

was consistent with there having been the breaking

of the door to gain access. Now, Your Honours, for

some reason which is absolutely unclear, with

respect, the judge allowed in some evidence

objected to where he said he had been told

something about how it was damaged. Mr Pruen

thought a fire officer had broken open the door.

That was at page 139L to P and 141J to P.

Could I pause to say, Your Honours,

undoubtedly there was a conflict of evidence on the

point but how could the Court of Appeal resolve

that conflict, with respect, against us? It was

just not correct to say, as the Court of Appeal did

at page 28, about line 7:

The case is not one in which there is any

material conflict of evidence.

Because, Your Honours, the question whether there

was a forced entry was a matter that was treated by

the Court of Appeal as of very considerable

significance.

DAWSON J: But that is really a question of the inference

you draw from the evidence, is it not?

MR JACKSON:  Yes, Your Honour, I accept that but to do that

it is a question of what is the primary fact,

really, from which the inference is to be drawn.

Now, if one accepts the evidence of Mr Thurston

that when he got there the front and back doors

were open, and if one accepts that there was damage

so there was no need for the fireman to break them

down, and if one accepts the evidence that there

was damage to the door which was consistent with it

having been broken to get access then, in those

circumstances, one has a situation that when the fire brigade arrived and they are relevantly the

first people on the scene, there is no suggestion

that anyone else damaged it, that - - -

BRENNAN J: Well, not the first on the scene. The man with

the hose is the first on the scene.

MR JACKSON:  No, no, Your Honour, he was the man next door

but there was no evidence at all to suggest he had

done it.

DAWSON J: Except he was playing his hose into the - am I

right? He was hosing down in that area when the

firemen arrived.

Elchaar	14	19/11/93
MR JACKSON:	Yes, he was, Your Honour.	He did not give

evidence and in relation to his evidence or in

relation to his hosing, Mr Pruen said that he had

got him up and said, "Hose down your own place", in

effect. But Mr Pruen did not say that the man with

the hose made the damage to the door.	He
thought - - -

DAWSON J: But, really, would it not be easy to conclude

that you could draw no inference that the door had

been forced by some intruder? Would that not be a

reasonable inference to draw?

MR JACKSON: With respect, Your Honour, no. What one would have to do first would be to find whether the door had been damaged. Whether one accepted - - -

DAWSON J:  Assume that and then say - would not the court

have said, "Well look, we don't know who, on that

evidence, actually damaged the door but we are not

prepared to come to the conclusion that it was an

intruder who did it."

MR JACKSON:	Your Honour, if that was so, if one drew the conclusion that it was an intruder, there is
absolutely nothing at all to connect up the
intruder with the applicants, nothing at all.
McHUGH J:	I may not have followed the evidence properly

when you read it but I thought that the only two

people who gave evidence about damage both said

that it was either caused by the firemen, in the

case of the son, or, in the case of Passmore,

caused by reason of access to extinguish the fire.

MR JACKSON:	Your Honour, the point I seek to make about both those was that the son had no - it had been
done by the time the son got there and he has just offered an observation, "Maybe it was done by the
fire brigade", and so far as Passmore was
concerned, he did not get there until 11 the next day and the part of his evidence that was plainly inadmissible was that he said someone had told him
it had been caused by the - - -

DAWSON J: But the point is there was no conflict, really, of evidence. It was a question of what inference

you drew from the evidence.

MR JACKSON:  With respect, Your Honour, there was because

the evidence of Pruen was that it was the fire

brigade officers who broke the front door to get

in - broke a panel in the front door to get in.

The evidence of the fire brigade officer on the

scene said that, "The front door was open and the
back door was open and so we got in." They were

open.

Elchaar 15 19/11/93

DAWSON J:	No material conflict of evidence.
MR JACKSON:	Your Honour, with respect.

DAWSON J:  Not really. You are left in a position where you

have to draw an inference from what evidence there
is and obviously the Full Court drew a particular

inference which I would suggest to you was open.

MR JACKSON:  Your Honour, could I say that the inference may

have been open. It was one of the two possible

results in the case, but the way in which the Court of Appeal went about arriving at that result was to

deal at the considerable length - one sees at the

bottom of page 27 - with the question of entry.

Now, it is impossible to say, looking at that, that

that was not something that was a very significant

matter for the Court of Appeal and they thought it

was a matter on which there was not any material

conflict of evidence. Your Honours, in that

respect there were, with respect, wrong.

Your Honour, if that is the case, then one has

circumstances where the primary judge's judgment,

in our favour, based on seeing the witnesses - and

Your Honour will say, "The witnesses who gave

evidence?", and I would say, "Yes" - all that is

wrong with that is that the judge did not

sufficiently set out the reasons why he arrived at

that conclusion.

McHUGH J: That is an understatement.

MR JACKSON:  Your Honour, we do not seek to defend that.

The judge should not have done that. He should

have given his reasons. But, whatever they were,

they were in our favour and, in those

circumstances, what one should have had was a Court

of Appeal very reluctant, indeed, to proceed to

make findings which involved rejecting some	evidence of witnesses which would support a	conclusion arrived at by the primary judge.
Your Honours, the last thing I would wish to say, and I will just take one moment to say it, is
that if one looks at page 24 of the Court of
Appeal's reasons, they say at line 9:

The relevant events leading up to the

date of the fire may be summarised as follows.

And Your Honours will recall, looking at the top of

the page, they are dealing only with the allegation
of arson. They then proceed to take into account

through the remainder of that page the conviction

which the applicant had. Now, they treat that as

Elchaar 16 19/11/93

being a relevant event leading up to the date of

the fire.

McHUGH J:  It may have had some relevance, may it not? I

mean, just as an ordinary process of reasoning, the

reason why, in criminal trials, that sort of

evidence is excluded, it is simply because, human

nature being what it is, people think, "If he was

involved in that sort of activity a decade or so

before, well, he may have been involved in this."

MR JACKSON:  Your Honour, that seems to be on, if I may say

with respect, the "give a dog a bad name" theory.

McHUGH J:  I know. But you have, on what has got to be your

case, this striking coincidence of events: the

fire is on the early morning of the 29th, I think,

is it not?

MR JACKSON:	Yes.
McHUGH J:	The wife goes into the hospital on the 27th; the

house is vacated the day before; they start
painting on the 28th; they leave solvents and paint
and other materials inside the house; they leave

about 6 pm; the house is apparently secure; they

have been planning to sell the house or demolish it

since 1984; they have got it up for sale; they have

bought another place; they have got bridging

finance which is repayable in the following

January; they have got very little cash; the male

applicant is injured in late October; he is out of

work; and then you have a deliberately lit fire.

Your case is that notwithstanding all these

incidents, some vandal got in there that night and

torched the place.

MR JACKSON:  If you add to what Your Honour has said two

things: the first is that the technical evidence

would seem to demonstrate that the fire must have

been started about 10 to 15 minutes before it was,

in effect, put out; and one has circumstances

where, if one accepts the evidence of the son of
where the father was at the time they heard about

the fire, that makes is relatively unlikely that he

did it, and if one adds to the equation that he did

it personally, one adds to that equation two

things. The first is that there is no evidence to

suggest any other particular person had anything to
do with it, and the second thing is that if one

accepts the evidence that the doors were open and

there was damage to the front door, perhaps, then,

Your Honours, that leaves one in the situation

where one really cannot be satisfied, in our

submission, that the inference against him should

be drawn and, if that was the case, we had to win.

Elchaar 17 19/11/93

McHUGH J:  Minds might differ on it but the Court of Appeal

took one view of the evidence and drew a certain

conclusion adverse to you.

MR JACKSON:  Your Honour, if the Court of Appeal, in doing

that, had applied what we would submit is the

correct test in relation to the evidence, then

there is nothing we could say about it from the

point of view of getting special leave. But it is

a case where the error, we would submit, occurred

relevantly in the Court of Appeal.

BRENNAN J:  We need not trouble you, Mr Hamilton.

MR HAMILTON: If the Court pleases.

BRENNAN J: This case gives rise to a question of the

correctness of the inference drawn by the Court of
Appeal from the facts of the case. That question

is not one which justifies a grant of special leave

to appeal.

In any event, the challenges made to

particular findings of fact are not so telling as

to demonstrate that a challenge to the Court's

conclusion would enjoy a substantial prospect of
success on appeal. For these reasons, special

leave is refused.

MR HAMILTON: Costs, Your Honour.

MR JACKSON:  I have nothing to say.

BRENNAN J: Special leave is refused with costs.

AT 11.38 AM THE MATTER WAS ADJOURNED SINE DIE

Elchaar 18 19/11/93