Hussain v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0013

BASHIR HUSSAIN	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF JUDGMENT:	27 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 288
JUDGMENT APPEALED FROM:	DPP v Hussain (County Court of Victoria, Judge Riddell, 10 May 2023)

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CRIMINAL LAW – Appeal – Conviction – Arson – Circumstantial case – Prosecutor asserted defence hypotheses had no evidentiary foundation and were speculative – Whether prosecutor reversed burden of proof, caused unfairness and distracted jury – No substantial miscarriage of justice – Whether trial judge erred in granting prosecutor leave to cross-examine prosecution witness on prior inconsistent statement – No error.

CRIMINAL LAW – Appeal – Conviction – Prosecutor invited jury to use evidence of applicant’s post-offence conduct in delaying calling 000 as implied admission that he lit fire – No incriminating conduct notice served – No mandatory direction on incriminating conduct given – Substantial miscarriage of justice – Appeal allowed.

Evidence Act 2008, s 38; Jury Directions Act 2015, ss 18, 19, 20, 21, 22.

Di Giorgio v The Queen [2016] VSCA 335; DPP v Lynn [2024] VSCA 62; Mocenigo v The Queen [2013] VSCA 231; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; Paulson v The King [2024] VSCA 188; Pompei v The King [2023] VSCA 71; R v Baden-Clay (2016) 258 CLR 308.

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Counsel
Applicant:		Ms CA Boston SC with Ms S Jayasekara
Respondent:		Ms S Clancy
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

MCLEISH JA
ORR JA:

The applicant was the proprietor of the Star Entertainment Centre, a pool hall with a bar, restaurant and shisha lounge. The Star Entertainment Centre was located on the second storey of a two-storey building in Dandenong South, of which the applicant was a tenant.
On the night of Sunday 31 March 2019, the Star Entertainment Centre was open for business. The applicant was at the premises with three of his employees. When the last of the three employees left the premises between midnight and 1:00 am, the applicant remained at the premises, playing snooker with friends.
At around 3:40 am, three construction workers who were on their way home from work pulled up at the building in which the Star Entertainment Centre was located, having seen that it was on fire. One estimated that he saw the fire from about a kilometre away. The other two said they saw the fire when they were at an intersection a short distance from the building.
At 3:41 am, one of the construction workers called 000 to report the fire. While the construction worker was talking to the 000 operator, the applicant emerged from the building. The construction workers called out to the applicant that the building was on fire.
At 3:44 am, the applicant called 000. He told the 000 operator that one side of the building was on fire and that there was no one inside the building.
Firefighters arrived a short time later. By the time the fire was extinguished, the second storey of the building was effectively destroyed. The damage was subsequently valued at $1,377,900.
The applicant told police at the scene that he was not sure how the fire started. He said that a heater had been used at the premises that night because a customer was cold.
The applicant subsequently made an insurance claim in the amount of approximately $1.3 million. The fire was deemed suspicious, and the claim was never paid.
The applicant participated in two interviews with police. He denied lighting the fire and said that he was unaware of the fire at the time he left the building.
The applicant was subsequently charged with a single charge of arson.[1]
[1]Contrary to s 197(1) and (6) of the Crimes Act 1958.
At trial, the prosecution case was that at the time of the fire, the applicant’s business was in decline. The applicant had been in a dispute with the landlord of the building, and the landlord’s son, who had opened a competing pool hall and shisha lounge on the ground floor of the building. The prosecution alleged that the financial performance of the applicant’s business had suffered as a result, and he had lit the fire for the purpose of an insurance claim.
The defence case was that the fire had been accidentally ignited, either by an electric bar heater or faulty downlights in the premises.
Competing expert evidence was adduced about how and where the fire had started within the premises. The prosecution called Mr John Kelleher, a forensic scientist with experience in investigating fires. The defence called Mr Phillip Glover, who ran a forensic fire investigation company. Neither could identify what had started the fire. Mr Kelleher thought it was more likely that the fire had been lit by a match or cigarette lighter, rather than started by an accidental cause. In his opinion, the fire had started on the south-eastern side of the building, burnt across the ceiling and out the window on the western side. Mr Glover said that any appliance that generates heat, such as a heater, could cause a fire if the appliance was too close to a combustible surface or had tipped over. He said downlights could also cause a fire if there was an electrical failure or they overheated. In his opinion, the fire had started on the north-western side of the building, before spreading to the ceiling and the south-eastern part of the building.
The prosecution also called evidence from Mr Gregory Chapman, who was the incident controller of the firefighting operation at the premises, and the three construction workers who had observed the fire, who included Mr Brian Birrell.
The three employees who were working at the Star Entertainment Centre that evening were also called by the prosecution. Two of the employees referred to heaters being used from time to time at the premises. Mr Mohamad Muntaziri said that there were two or three air conditioning systems, but one of them would be turned off when there were not many customers. It would then get cold, and there were small radiator-type heaters that were provided to customers if they felt cold. Sometimes the applicant would use one of the heaters when he played snooker in his favourite area near the bar. Mr Muntaziri could not remember seeing the applicant’s heater on that night, but said it was a cold night. Ms Gavindi Senevirathne recalled the applicant sometimes using a small electric heater when in the ‘small tables’ area near the bar where he liked to play snooker with his friends. She said the customers did not usually ask for heaters. There was air conditioning in the premises that could heat and cool and the need for any small electric heater was therefore limited.
Based on the expert evidence, the evidence of the construction workers about their observations of the fire, the timing of closed-circuit television (‘CCTV’) footage showing the applicant emerging from the building and the timing of the initial 000 call, the prosecutor closed the case to the jury on the basis that the applicant must have been inside the building for approximately seven minutes while the fire was burning. He said that it would have been impossible for the applicant not to have seen the fire during this period, which must have been ‘really significant’ by the time he left the building. He submitted that the only reason that the applicant would not have called 000 during this period was ‘because he lit the fire, and he wanted it to continue’.
At the end of the 10-day trial, the jury convicted the applicant. He was subsequently sentenced to 3 years and 8 months’ imprisonment, with a non-parole period of 2 years.
The applicant wishes to appeal his conviction. He seeks an extension of time within which to file an application for leave to appeal.[2] The proposed application for leave to appeal contains the following four grounds:
Ground 1:
The learned prosecutor’s objections, cross-examination and closing address tended to reverse the burden of proof, interrupt the flow of the defence ‘case’ and distract the jury from the true issues in the trial, thus resulting in a substantial miscarriage of justice.
Ground 2:
The conduct of the prosecution gave rise to a real risk of the jury impermissibly engaging in post-offence incriminating conduct reasoning, thus resulting in a substantial miscarriage of justice.
Ground 3:
The learned trial judge erred in permitting the learned prosecutor to cross-examine Mr Birrell pursuant to s 38 of the Evidence Act 2008.
Ground 4:
A substantial miscarriage of justice has been occasioned by a combination or aggregation of defects.
[2]The applicant was sentenced on 7 September 2023. The application for leave to appeal was filed on 25 January 2024, about three and a half months out of time: see ss 275(1) and 313 of the Criminal Procedure Act 2009.
The proposed grounds of appeal require us to examine two main issues. The first is whether the prosecutor’s conduct during the trial resulted in a substantial miscarriage of justice, including because he impermissibly invited the jury to engage in post-offence incriminating conduct reasoning. The second is whether the judge erred in permitting the prosecutor to cross-examine Mr Birrell.
Before addressing those issues, we commence with an overview of the relevant evidence at trial.

The evidence

Matthew Micallef

Matthew Micallef was the first of the three construction workers to give evidence. He said that on his drive home from work in the early hours of 1 April 2019, he stopped at an intersection directly opposite the building. His co-worker, Michael Jackson, was in the car next to him, also stopped at the intersection. Mr Micallef saw flames coming from the top of the building, on the left-hand side. He and Mr Jackson both drove to the front of the building. He got out of his car and called 000. The audio recording of the 000 call was tendered, in which a timestamp can be heard indicating that the call was made at 3:41 am.
Mr Micallef told the 000 operator that he could see flames coming out of the window of the building. While he was talking to the operator, he saw someone walk out of the building. Mr Micallef called out to him, ‘hey, the place is on fire, mate’. The person did not respond. Mr Micallef told the 000 operator that the person ‘didn’t even know what was going on’. Shortly after making the call, Mr Micallef left the scene. Mr Micallef was shown CCTV footage of the carpark outside the building, which showed the applicant emerging from the building at 3:43 am.

Brian Birrell

Brian Birrell was the second construction worker to give evidence. He said that he began his shift on 31 March 2019 at 8:00 pm and finished at about 3:30 am. On his drive home, he stopped at the same intersection, where he saw that the building straight ahead of him was on fire. He saw that Mr Micallef and Mr Jackson were out the front of the building. Mr Birrell pulled over. He saw fire coming out of a window on the top floor of the building.
Mr Birrell said:
[T]he two windows on — at the front — one was broken with flames coming out of that, and the other one had — ah, the glass was all blackened, but you could see around the edge that the flames were inside.
The prosecutor then asked Mr Birrell:
And the flames that you saw — which way were they heading, or which way were they moving?---They were going up.
Right. And, again, can you make any observation as to how far up they were going?---Oh, probably — maybe a metre.
Could you see inside the building at all?---No.
Right. Was the fire causing any noise?---Ah, the only noise I could hear was the glass breaking on top of the — looks like the veranda, just bits of glass dropping.
And do you know what was causing that?---Probably because the glass — the window was broken. Probably the heat.
Did you observe smoke at all?---Yes. A small amount of smoke. Yes.
In terms of the smoke and the flames, which was greater?---The fire.
And could you tell whether there was any fire inside the building?---No, only from what you could see through the glass.
And what could you see through the glass?---Just flames.
And how would you describe the fire that you observed?---No, it, ah — it was burning well.
After a few minutes out the front of the building, Mr Birrell saw a person come out of the building and walk towards a car. Mr Micallef said to him, ‘Your building’s on fire. I’ve rang the fire brigade’. Mr Birrell did not hear the person respond.
The prosecutor played CCTV footage of the carpark at the front of the building to Mr Birrell. The footage showed Mr Birrell and the two other construction workers standing side by side, watching the fire, which was not directly visible in the footage.
At this point, Mr Birrell was again asked to describe the fire. Again he said it had been ‘burning well’.
After the CCTV footage had concluded, the following exchange occurred between the prosecutor and Mr Birrell:
[H]ow many windows did you observe, Mr Birrell?---Two.
Pardon?---Two.
Right. And what state were they in when you observed them?---Ah, the ones — there were — the fire’s comin’ out of one, and the other one was black as, and it’s just — you could see around the edge of it where the fire was.
Now, I just clarify with you: were you able to see into the building at all?---No.
These answers prompted the prosecutor to apply, in the absence of the jury, to cross-examine Mr Birrell,[3] in order to take him to a statement he had made to police in which he had said:
I could also see through a gap in the window that had not blackened up that the inside of the building was well alight and burning fiercely inside.[4]
[3]Evidence Act 2008 s 38(1).
[4]Emphasis added.
The judge refused the application on the basis that Mr Birrell had said twice (see [25] and [29] above) that he could see fire through a window. That evidence was not inconsistent with his police statement,[5] nor was it unfavourable to the prosecution.[6]
[5]Evidence Act s 38(1)(c).
[6]Evidence Act s 38(1)(a).
When the jury returned, the prosecutor asked:
Mr Birrell, could you see the fire inside the building?---No.
The prosecutor promptly renewed his application to cross-examine Mr Birrell. This time, the judge granted the application on the basis that Mr Birrell’s evidence was inconsistent with his police statement.
The excerpt from Mr Birrell’s police statement that we have set out above was then read to him. He confirmed that what he had said in his statement was true. He again said that one of the windows was broken and the other was ‘blackened’.
In cross-examination by defence counsel, Mr Birrell agreed that in his statement he had said that flames were coming out of the broken window. He then said that the blackened window was ‘glowing’. He agreed that he could see flames coming out of the broken window and flames behind the blackened window.
Finally, Mr Birrell agreed that a police officer had written his statement, which he then signed. He agreed that it was possible that not every word in his statement was a word he would choose. And he agreed that there was little difference between the words ‘burning well’ and ‘burning fiercely’.

Michael Jackson

The final construction worker to give evidence was Michael Jackson. He said that on 30 March 2019, he worked from 8:30 pm and finished sometime in the morning.
On his drive home, when he was about a kilometre away from the intersection near the building, he saw an orange glow. When he got closer to the building, he realised it was on fire. He pulled up into the driveway of the building and got out.
Mr Jackson said the fire was ‘pretty hot’. It was over six feet in height. There was also a little bit of smoke. One of the windows on the building was broken. He could hear glass coming out of the window and breaking on the tin roof below. Through a second window, he could see fire inside the building.
Mr Jackson saw a guy walk out of the building. Mr Jackson said that he yelled out ‘hey mate, the building’s on fire’. The guy ‘sort of looked’. Mr Micallef told him that he had already dialled 000. The guy then picked up his phone and walked away. Mr Jackson left the scene shortly after.

Acting Detective Sergeant Matthew Folvig

Acting Detective Sergeant Matthew Folvig was the informant. At the time of the fire, he was stationed at the Greater Dandenong Crime Investigation Unit of Victoria Police.
ADS Folvig said the applicant had made a statement on the morning of 1 April 2019. The applicant had stated that everyone had left the building when he closed up at around 3:40 am. The applicant had also stated, ‘I’m not sure how the fire could have started. We did use a heater, because a customer was cold, but I don’t know’.
Relevantly, three exhibits were tendered through ADS Folvig.
The first was CCTV footage showing the applicant descending a flight of stairs in the building and exiting through a set of doors on the north-western side of the building at 3:43 am.
The second was an audio recording of the call made by the applicant to 000. A timestamp is heard in the call indicating that it was made at 3:44 am.
The third was a video depicting fire coming out of two north-western windows on the building. ADS Folvig confirmed that the video was from the applicant’s phone, and that it was recorded at approximately 3:50 am.
ADS Folvig was asked whether he had checked that the timestamps in the applicant’s 000 call aligned with the timestamps in the CCTV footage. ADS Folvig said he had not, but that the timestamps were consistent.

The 2 April 2019 record of interview

The applicant participated in a recorded interview with ADS Folvig on 2 April 2019, parts of which were tendered in evidence.
The applicant said he had run the Star Entertainment Centre since March 2015. Although he had invested significant capital, much of it borrowed, after a few months the business was generating a monthly income of $42,000 to $45,000.
In the period from December 2015 to January 2016, a new landlord and his son had taken over the building and disputes subsequently arose. They had opened their own shisha lounge on the ground floor, followed by their own pool hall. This had an adverse effect on the Star Entertainment Centre, the monthly income of which reduced to roughly $25,000 to $30,000.
The applicant drew and annotated a map of the Star Entertainment Centre. The premises had a circular shape. The applicant indicated the location of a staircase that led to the main entrance, a bar with two points of sale (one of which he referred to as the ‘counter’), a kitchen and cold room that were behind the bar and a nearby dining area. He indicated the location of an emergency door on the opposite side of the premises and another flight of stairs to the ground floor. There was a small office near the emergency door, as well as a storeroom, toilets, and a smoking area. The applicant also indicated the location of various snooker and pool tables, including three snooker tables which lined the wall of the premises between the bar and the smoking area (the north-western wall).
The applicant said that on 31 March 2019, he arrived at the Star Entertainment Centre at about 11:15 pm. He played snooker with his friends at a snooker table in the north-western part of the premises until about 2:30 am or 2:45 am.
The applicant said that at about 3:00 am to 3:15 am, after everyone had left, he did a routine check, which involved traversing the northern and south-western parts of the premises. At about 3:35 am, he turned off the lights and armed the security alarm. He went down the staircase and left the building. He saw three people, about 40 metres away, who said to him ‘there is smoke’. The applicant said ‘OK. Where is it?’. They replied ‘there is smoke from that end’. The applicant went in the direction they referred to and saw smoke. He immediately called 000.

The applicant said he then moved his car, which was parked nearby. Shortly after, the fire brigade arrived. The applicant alternated between sitting inside his car and standing outside, because he was cold. He went home and got a jumper before returning.
The applicant said he did not store any chemicals or flammable materials at the premises, apart from cleaning products. He was asked what sort of appliances he had in the vicinity of the pool tables located near the centre of the premises. He said there was a pillar there with power points for customers as well as a jukebox.
Towards the end of the interview, the applicant was shown two stills of CCTV footage: the first was of the applicant in the stairwell at 3:43 am. The second was of the applicant in the carpark. The applicant confirmed that it was him in both stills.
At the end of the interview, ADS Folvig told the applicant that the arson chemist said the fire started in the middle of the premises and in the office. The applicant responded that because he was at the counter, his view of those areas would have been blocked by the cold room.

The 12 December 2019 record of interview

The applicant participated in a second recorded interview with ADS Folvig on 12 December 2019, parts of which were also tendered in evidence.
The applicant again recounted what happened when he exited the building. He said there were a few guys watching the building. He walked towards them and asked ‘What is really happening?’. They said, ‘There is smoke there, just coming from the window’. The applicant said, ‘My God, yes, there is a fire’, and called 000 immediately.
Towards the end of the interview, ADS Folvig informed the applicant that the arson chemist had determined that the fire was ignited by a match or cigarette lighter in the south-eastern part of the Star Entertainment Centre. The spread of the fire, ADS Folvig said, was possibly assisted by a flammable liquid. Although the source of the ignition was not determined, there were no appliances in the area of ignition, and no obvious signs of accidental ignition. The applicant replied ‘I got no idea about that’.

Gregory Chapman

Gregory Chapman, the incident controller of the firefighting operation, gave evidence on a voir dire[7] and before the jury. The judge directed the two expert witnesses, Mr Kelleher and Mr Glover, to be present during Mr Chapman’s evidence before the jury, and during each other’s evidence.
[7]Criminal Procedure Act s 198B.
On the voir dire, Mr Chapman opined that the fire was propelled by an accelerant. That opinion was based on various observations, including a flash, an explosive sound, sounds of timber, windows and aluminium failing, as well as the speed and persistence of the fire. Mr Chapman accepted that he had no training in forensic fire investigation.
Following the voir dire, the prosecutor said that he would not lead evidence before the jury of Mr Chapman’s opinion that an accelerant was involved.
Before the jury, Mr Chapman said he was called out at 3:42 am. He arrived at the scene at about 3:50 am, and remained there until 7:00 am. He saw a person filming the fire and asked him to remain until police arrived.
Upon arrival, Mr Chapman saw that windows on the north-western side of the building were on fire. The flames were bright yellow, with some areas of crimson. Mr Chapman said this indicated the fire was being ‘“driven by something”. So I suspected---’, leading the prosecutor to cut Mr Chapman off and direct him to give evidence only of his observations, and not of his suspicions.
Mr Chapman said he directed his crew to go upstairs to contain the fire. Within four minutes of arriving at the scene, a hose was being used to apply water to the fire. After his crew diminished the fire, he directed them to retreat. The fire again grew, so Mr Chapman again directed his crew to attack the fire from the inside. The attack was unsuccessful. Mr Chapman directed his crew to retreat from the building.
While his crew were retreating, Mr Chapman was standing at the south-western side of the building. He saw smoke and fire licking out from underneath the roof. Then, he saw a flashover — an event that occurs where a fire heats everything in a room to the point of ignition. The flashover ignited 60–70 per cent of the first floor. Mr Chapman said once the crew had retreated from the building, they fought the fire from the outside. Thirty to 35 minutes later, aerial firefighting appliances arrived to extinguish the fire.

John Kelleher

John Kelleher, the prosecution’s expert witness, gave evidence that he attended the premises on 1 April 2019. He observed that almost everything in the premises was burnt. Although the bar area was not too badly damaged, the eastern part of the premises had sustained severe damage. There, steel girders supporting the roof had started to sag. Mr Kelleher opined that the most damaged area of the premises, namely the south-eastern area, was likely where the fire had started.
While at the scene, Mr Kelleher made a drawing depicting the layout of the premises. The drawing indicated spots by the south-eastern wall of the premises where he had taken samples of carpet. The south-eastern quadrant of the premises was shaded with horizontal lines, to indicate that that this area was more severely burnt. A subset of that quadrant, near the centre of the premises, where some pool tables were located, was also shaded with vertical lines, to indicate that that area was most severely burnt. Another area near the emergency door at the easternmost point of the premises showed vertical shading as well.
Mr Kelleher was shown a book of photographs of the scene taken by a police officer. Mr Kelleher said that various of the photographs corroborated his opinion. For example, carpet near the emergency door, on the eastern side of the premises, was burnt through to reveal the concrete floor beneath, whereas chairs near the bar, on the western side of the premises, had retained their varnish, which suggested that the fire had started in the east and moved westwards.
Mr Kelleher had sought to ascertain potential sources of ignition. When asked whether he had found anything to assist in that task, he said ‘not really’. More generally, Mr Kelleher accepted that appliances, such as heaters, can be a potential source of ignition — although he said it was unusual these days for a heater to start a fire.
Although Mr Kelleher could not determine precisely how the fire started, he thought it was more likely that the fire was lit by a match or cigarette lighter, rather than by an accidental cause. He could not find any accidental source of ignition. The fire appeared to have developed quickly[8] and covered all of the floor, which was unusual. In addition, the extent of the damage in the area shaded with horizontal and vertical lines suggested there may have been a flammable liquid present — although the carpet samples did not confirm this, and no flammable liquid had been found in the applicant’s car or on his clothes.
[8]Mr Kelleher said this was evidenced by the fact that the fire started on the eastern side of the premises, yet came through a window on the western side of the premises (where Mr Jackson, Mr Micallef, Mr Birrell and later, the applicant, were standing). He opined that the fire burned across the room along the ceiling, without igniting the chairs and tables near the bar, which suggested that it had developed quickly.
Mr Kelleher did not find any heater in the premises, although he acknowledged that the scene was difficult to examine. He said that it was not impossible for the fire to have been started by a heater, but he regarded it as less likely.
Pressed on this, Mr Kelleher said that a fire that started in a single small area like that would develop slowly, and be noticed fairly early. He also did not think it would cause the widespread damage observed in the area of origin of this fire.
In cross-examination, defence counsel suggested to Mr Kelleher that the fire could have been started by an electric bar heater igniting the carpet, then a synthetic couch, then synthetic blinds. Mr Kelleher disagreed, because the billiard tables, pillars and chairs near the bar in that area, and the bar itself, were unburnt. He said ‘I won’t say it’s impossible, but I think it unlikely’.
When defence counsel again suggested that small electric bar heaters could be tipped over and ignite a fire on carpet, the prosecutor objected, on the basis that there needed to be some sort of evidentiary basis for the question. The judge overruled the objection and Mr Kelleher agreed that heaters placed too close to flammable sources could cause fires.
The prosecutor objected to a further question designed to explore the hypothesis that a heater had caused the fire, on the ground that there was no evidentiary basis for the question, nor the hypothesis. In response, defence counsel pointed out that that two of the three employees of the Star Entertainment Centre had referred in their evidence to the presence and use of heaters at the premises. The judge overruled the objection. In the course of answering further questions on this topic, Mr Kelleher accepted that ‘in some circumstances’, a fire tended to double in size every minute. Thus, a small fire could become a large fire quite quickly.
Defence counsel also suggested to Mr Kelleher that the fire may have been started by a downlight in the western area of the premises igniting, causing burning material to drop onto a couch beneath. Mr Kelleher accepted that downlights ‘have been known’ to cause fires. He accepted that when a downlight catches fire, it can ignite material in the roof. However, he excluded the possibility that the fire had been caused by a downlight in the western area of the premises, because he would expect there to be a great deal more damage in the western area if this had occurred.
At the end of his cross-examination, defence counsel put two propositions to Mr Kelleher:
You can’t exclude, Mr Kelleher, can you, that this fire could have been started by an electric heater in the area near those windows on the west; do you agree with that or you disagree?--- … I can’t exclude it. I think it most unlikely, but I can’t exclude it.
Yes. You can’t exclude, Mr Kelleher, that the fire started in this area by means of a faulty downlight, can you?---Well, I could — same as the heater. I could exclude it to my satisfaction. I can’t exclude it, ah, absolutely with — you know, I’m not infallible, but, um — but I thought it most unlikely.
In his re-examination, Mr Kelleher summarised his opinion of where the fire started and developed as follows:
I think it most likely that the fire started on the eastern side, um, built up into a quite large fire, um, burnt across the ceiling and out the window on the western side. Well, once it — once that window had cracked, then — then the fire would — would head in that direction. Ah, the fire would tend to continue to go out the window.
Finally, it was put to Mr Kelleher that evidence had been given that around the time 000 was called, at 3:41 am, the fire was visible from a kilometre away. Mr Kelleher said for the fire to be seen outside the window very quickly, it must have got hot enough to break the window. To get hot enough to break the window, it must have been burning for some time — for how long he could not say, although he thought it would have been in the order of 5–10 minutes.

Phillip Glover

Phillip Glover was the defence expert witness. With the consent of the parties, the judge directed that Mr Glover give evidence after Mr Kelleher, rather than during the defence case.[9]
[9]Criminal Procedure Act 2009 s 232A(2).
Mr Glover commenced by explaining his methodology when investigating a fire. The prosecutor interrupted, saying that this was ‘all very interesting’ but was ‘of no value whatsoever to this jury’, in circumstances where Mr Glover had not attended the scene of the fire and ‘we need to know about this fire, how things went about in this fire’.
The judge permitted Mr Glover to continue explaining his methodology.
Mr Glover accepted that he had not attended the Star Entertainment Centre. His opinions were based on statements and photographs he had received, as well as video footage, such as that recorded by the applicant and the CCTV footage of the firefighting activity.
Mr Glover said that given the large size of the premises, he doubted very much that there was a ‘flashover’ (as Mr Chapman had described). He opined that the fire began near the north-western windows, before spreading to the ceiling, and then towards the south-eastern part of the ceiling. This, in turn, caused the ceiling to collapse, raining down debris which ignited combustible material at floor level. The fire then burned for 30–35 minutes unabated. This was why the south-eastern area appeared significantly burned, even though it was not the area of origin.
As to the source of the fire, Mr Glover said that any appliance that generates heat can cause a fire. This could happen if the appliance was faulty or, in the case of a heater, if it was too close to a combustible surface or tipped over.
Mr Glover was shown photographs of the premises prior to the fire. He said that the plastic carpet and vinyl couch (and, it appears, the blinds) depicted in a photograph were items that an electric bar heater could ignite. However, the filament or metal body of such a heater should still have been discoverable after a fire, unless it was displaced or destroyed during firefighting activities, or covered by debris. That said, small components of a heater would have been difficult to find.
As to the downlight hypothesis, Mr Glover said downlights could also cause a fire due to an electrical failure or if they overheated. He said quartz-halogen downlights were more likely to start a fire than LED downlights. However, given that all the downlights in an area would generally have fallen at some point during a fire, it would be difficult to find evidence that the fire had been caused by a downlight.
Mr Glover said if a downlight caught fire and ignited the ceiling, burning debris might fall onto a couch, which would be highly likely to ignite, as would the carpet, window dressings, and even the billiard tables. There was ‘a lot of fuel’ in the premises.
Mr Glover was asked, based on the video recorded by the applicant, which was said to show the fire at 3:50 am to 3:51 am, to extrapolate the size of the fire 8–10 minutes prior. Mr Glover said based on a rule of thumb that a fire doubles in size every minute, the fire could have been very small.
Mr Glover was also asked about the time a heater might take to start a fire. The prosecutor interrupted Mr Glover’s response, on the basis that it was ‘really speculative’, there was ‘no evidentiary basis’, given that there was nothing to indicate that there was a heater in close proximity to any combustible material, and it was all ‘pure speculation’. The judge overruled the objection.
Mr Glover then said that materials would have to be quite close to a heater for it to start a fire. It would probably take up to several hours, although synthetic material might ignite more quickly than natural fibre. A quartz-halogen downlight could, upon electrical failure or explosion, cause a fire immediately.
In cross-examination, Mr Glover said a quartz-halogen downlight was more likely to cause a fire because they generated more heat, but he had also attended scenes where LED lights had caused a fire. He accepted that he did not know whether the downlights in the premises were quartz-halogen or LED, nor did he know how long the downlights had been operating without problem, or whether there was any combustible material in or around the downlights.
As for the heater hypothesis, Mr Glover accepted that he did not know the location of any heater in the premises and that he was unaware of whether anyone had knocked over any heater. He said he had never been in the building.
At this point, the prosecutor put to Mr Glover that the National Fire Protection Association of America Guide to Fire and Explosion Investigations (‘NFPA 921’), which the prosecutor referred to as ‘the Bible’, indicated that the ‘number one’ aspect of investigating a fire is that the investigator attend the scene. In response, Mr Glover said that ‘you can’t investigate a fire unless you’re there’. However, he rejected a proposition put by the prosecutor that his opinion was based on no more than guesswork, pointing to his experience developed over 40 years of attending fires.
The prosecutor referred Mr Glover to the evidence of Mr Jackson that he saw the fire from a kilometre away. Mr Glover said that Mr Kelleher’s evidence that this meant the fire had been burning 5–10 minutes prior was a reasonable estimation. The prosecutor asked Mr Glover to accept that given that Mr Micallef called 000 at 3:41 am, that the CCTV footage depicted the applicant exiting the building at 3:43 am, and that the applicant called 000 at 3:44 am, the applicant had potentially been inside the building for seven minutes or longer.[10] The prosecutor then asked Mr Glover to agree that it was therefore unlikely that the applicant would not have seen the fire. Mr Glover did not agree. He said the building was large and it would have depended on where the applicant was at the time of the fire.
[10]It appears this figure was arrived at by subtracting five minutes from 3:41 am, calculating the difference between that time (3:36 am) and the applicant’s exit from the building and call to 000 (3:43 am to 3:44 am), and taking the minimum amount of time in that range (seven minutes).
The prosecutor then put to Mr Glover that the applicant had said he was at the bar, ‘right next to where you say the fire started’. The defence objected, and clarified that the applicant had told the police that he had been working at the counter. The prosecutor then showed, using a photograph of the premises, that regardless of whether the applicant was working at the bar or the counter, the area near the north-western windows — where Mr Glover believed the fire had started — was visible. Mr Glover agreed, and said it would have been unlikely that someone working there would not see the fire.
Towards the end of Mr Glover’s cross-examination, the prosecutor put to him Mr Chapman’s opinion that the fire had been ‘driven by something’ and asked whether Mr Glover’s observations could indicate that an accelerant had been used. Mr Glover gave a non-responsive answer. The prosecutor then asked whether the fire could have been driven by an accelerant, a proposition which Mr Glover accepted. He also accepted that there might be no evidence of an accelerant if one had been used, because of the water that was used to extinguish the fire. When the prosecutor returned to suggest that Mr Chapman’s opinion might therefore be an accurate one, the judge intervened, stating that what Mr Chapman had meant was ‘not to the point’.
At the end of the cross-examination, the prosecutor suggested to Mr Glover that although he had written in one of his reports that ‘I do not have a personal or professional association with the parties to this matter and to my knowledge no conflict of interest exists’, that statement was false. The prosecutor pointed out that the applicant’s solicitors remunerated Mr Glover for his work. Defence counsel objected, at which point the judge pointed out that experts are bound by the expert witness code of conduct. The judge allowed Mr Glover to answer the question. He said that he had declared that he did not have a personal or professional association with the parties because he had never met the applicant or any of the parties involved in the matter. He said he was frequently instructed by lawyers and insurance companies to conduct these types of investigations.
In re-examination, Mr Glover was given an opportunity to clarify that he was not influenced by any party, merely because he was being paid, and that he was paid for his work regardless of the conclusions he reached.

Proposed ground 2: Risk of jury engaging in incriminating conduct reasoning

We commence our consideration of the issues raised by this application with proposed ground 2. By this proposed ground, the applicant contends that the conduct of the prosecution gave rise to a real risk of the jury impermissibly engaging in post-offence incriminating conduct reasoning, thus resulting in a substantial miscarriage of justice.

The parties’ submissions

The applicant relied on the following passages from the prosecutor’s closing address:
Mr Kelleher stated and you might think somewhat reluctantly, Mr Glover actually agree[d], that for that fire to have been observable at that distance, [it] must’ve been going for at least five or ten minutes, but think about the logistics or the physical aspects of this.
The fire is in the first floor. They’re somewhere up the road. For the fire to be visible outside, the curtains at the very least must’ve been burnt. … [F]ire is visible outside at a distance of approximately a kilometre and Mr Kelleher ultimately agree[s] — Mr Glover as I said, somewhat agrees, that fire must’ve been going somewhere in the region of five to ten minutes.
The other — and I think this is part of the CCTV footage that you’ll see, is that you see [the applicant] leaving the building at something like 3.43 … . So it’s about two minutes after the call that’s been made to Triple 0 [by Mr Micallef]. If you take the minimum time, namely five minutes, that puts [the applicant] inside the pool hall for approximately seven minutes, whilst the fire is on. That’s, in my submission, the logical progression of the evidence that’s before you.
…
In his record of interview, [the applicant] denies emphatically any knowledge of any fire inside the building while he says he’s there. Now, think about that for a moment. What he tells you he’s doing, he’s checking, he’s looking, he’s moving from the bar to the kitchen to the (indistinct) machine, lockers; he’s moving around that area where Mr Glover has told you that fire started … . It’s that area at the back beyond the bar where Mr Glover says this fire has started, which has been seen outside.
Now, even Mr Glover conceded that if somebody was moving around in that way, it was unlikely — unlikely — that they would not have seen that fire. It will be the prosecution’s suggestion to you, it would be impossible not to see that fire, given that it must have grown at that stage to a really significant fire.
Now if this was an accidental fire and you’re in the pool hall, [the applicant] is in the pool hall, and he sees that fire and this is his livelihood, this is what he’s invested significant amounts of money [in], what’s the first thing he would do? Wouldn’t he call Triple 0 while he’s in there and say, ‘There’s a fire here, quick, get here, put it out.’ No, he doesn’t do that. You know that it’s not till 3.44 and some seconds, when he’s outside and he’s been told by the people outside that there’s a fire or smoke, flames, whatever, and that’s when he calls Triple 0. Is that a likely scenario? Is that plausible, is that reasonable? I suggest to you that it’s a most unlikely description of what occurred. [The applicant], we know, is the last person out of that building. It is significantly on fire at that time, and the only reason that he would not call Triple 0 is because he lit the fire, and he wanted it to continue.[11]
[11]Emphasis added.
The applicant submitted that in these passages (and particularly the last sentence), the prosecutor invited the jury to use his conduct after the commission of the alleged offence as an implied admission that he committed the offence, or an element of the offence. This was an impermissible invitation, given that:
(a)contrary to s 20(1)(a) of the Jury Directions Act 2015, no notice of evidence to be relied on as incriminating conduct had been given to the defence pursuant to s 19(1);
(b)no determination had been made by the judge under s 20(1)(b) that, on the basis of the evidence as a whole, the evidence was reasonably capable of being viewed by the jury as evidence of incriminating conduct; and
(c)the mandatory direction on the use of evidence of incriminating conduct was not given by the judge pursuant to s 21(1).
The prosecutor’s conduct was said to be particularly prejudicial in circumstances where there was evidence of other post-offence conduct that could wrongly be relied on by the jury as incriminating conduct, namely the applicant’s failure to respond to the construction workers, the fact that he had left the scene temporarily despite being asked to wait by Mr Chapman, and that he had changed his clothes while away from the scene. The invitation to the jury to rely on the applicant’s delay in calling 000 was said to heighten the risk that the jury would engage in impermissible reasoning in respect of all post-offence conduct in the case.
The applicant accepted that trial counsel did not raise any objection to this aspect of the prosecutor’s address. However, this was relevant not to whether there had been an error, but rather to whether the error occasioned a substantial miscarriage of justice.[12] The applicant referred to Pompei v The King, where this Court allowed an appeal on the basis that the jury had been impermissibly invited to engage in incriminating conduct reasoning — even though trial counsel had not made any complaint about the invitation.[13] The Court was ‘unable to be satisfied that the prosecutor’s invitation was either rejected or not processed by the jury’.[14]
[12]Criminal Procedure Act s 276(1)(b).
[13][2023] VSCA 71, [40]–[44] (Beach, T Forrest and Kaye JJA) (‘Pompei’).
[14]Pompei [2023] VSCA 71, [44] (Beach, T Forrest and Kaye JJA).
In response, the respondent conceded that if the passages of the prosecutor’s closing address set out above constituted an invitation to the jury to engage in incriminating conduct reasoning, that would amount to an irregularity in the trial which had resulted in a substantial miscarriage of justice.
However, the respondent submitted that the passages did not constitute such an invitation. While the prosecutor’s statement to the jury that ‘the only reason that he would not call Triple 0 is because he lit the fire, and he wanted it to continue’, was ‘clumsily phrased’, it did not invite incriminating conduct reasoning. Instead, the evidence of the applicant’s delay in calling 000 was relied on to invite the jury to infer that he wanted the fire to continue. That inference would then ‘lend weight’ to an inference that the applicant lit the fire. Such a path of reasoning, the respondent said, differed from incriminating conduct reasoning. As counsel for the respondent put it:
That is different to inviting the jury to infer that the applicant didn’t call Triple 0 because at that time, when he’s making that decision not to call Triple 0, it’s because he wants to distance himself from having lit the fire, or he’s not calling Triple 0 because he knows he’s lit the fire and he’s going to get in trouble.
The respondent submitted that it was relevant that the prosecutor’s remarks about the applicant’s delay in calling 000 followed a lengthy discussion between counsel and the judge the previous day, as a result of which the prosecutor had ‘refined his course’ overnight. Further, it could be inferred that defence counsel did not perceive any real risk that the jury would engage in incriminating conduct reasoning. Immersed in the atmosphere of the trial, and being aware of the specific issue concerning incriminating conduct reasoning as a result of the discussion the previous day, defence counsel elected not to object to these passages in the prosecutor’s address.

Consideration

Part 4 div 1 of the Jury Directions Act deals with evidence of post-offence conduct, a category of evidence that may be easily misused.[15] This Court has summarised the scheme created by the relevant provisions of the Jury Directions Act as follows:[16]
(a)Incriminating conduct means conduct (being an act or omission of the accused that occurs after the event(s) alleged to constitute the offence charged) that amounts to an implied admission by the accused of having committed the offence charged or an element thereof.[17]
(b)The prosecution must give a notice of intention to rely on evidence of incriminating conduct at least 28 days before the trial is listed to commence.[18]
(c)The judge may dispense with notice requirements if the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct and it is in the interests of justice to dispense with those requirements.[19]
(d)The prosecution must not rely on evidence of conduct as incriminating conduct unless the s 19 notice has been given, and the trial judge determines on the basis of all the evidence, that the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.[20]
(e)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury on the way in which they may use that evidence.[21]
(f)An additional optional direction on incriminating conduct is available upon request by defence counsel.[22]
[15]Mocenigo v The Queen [2013] VSCA 231, [73] (Priest JA, Buchanan JA agreeing at [1], Neave JA agreeing at [2]), quoted in Mulligan (a pseudonym) v The Queen [2017] VSCA 94, [102] (Redlich, Weinberg and Priest JJA); Pompei [2023] VSCA 71, [42]–[43] (Beach, T Forrest and Kaye JJA). See also DPP v Lynn [2024] VSCA 62, [114]–[122] (Emerton P, Taylor and T Forrest JJA).
[16]Pompei [2023] VSCA 71, [35] (Beach, T Forrest and Kaye JJA).
[17]Jury Directions Act s 18.
[18]Jury Directions Act s 19.
[19]Jury Directions Act s 19(3)(b)–(c).
[20]Jury Directions Act s 20(1)(a)–(b).
[21]Jury Directions Act s 21(1)(a)–(b).
[22]Jury Directions Act s 22.
The directions for which the Jury Directions Act provides in ss 21 and 22 are a rationalisation and simplification of directions which are the subject of a number of appellate authorities. They are required because of the risk that, without proper instruction, the jury might engage in reasoning which is both invalid and unfair to the accused.[23]
[23]Pompei [2023] VSCA 71, [43] (Beach, T Forrest and Kaye JJA).
Of course, it is permissible to invite the jury to engage in incriminating conduct reasoning where the requirements imposed by the Jury Directions Act have been complied with. Such reasoning has long been recognised as a legitimate mode of reasoning in the common law,[24] and is now recognised as such by statute. However, in the present case, where the notice requirement in the Act had not been complied with,[25] no determination had been made as required by the Act,[26] and the mandatory direction required by the Act had not been given,[27] if the prosecutor relied on evidence of the applicant’s post-offence conduct as evidence of incriminating conduct, that would constitute an error or irregularity in the trial resulting in a substantial miscarriage of justice. So much was accepted by the respondent. The sole question in this proposed ground of appeal is whether the prosecutor in fact relied on evidence of the applicant’s post-offence conduct as evidence of incriminating conduct.
[24]See, eg, Edwards v The Queen (1993) 178 CLR 193, 208–11 (Deane, Dawson and Gaudron JJ); [1993] HCA 63.
[25]Jury Directions Act ss 19, 20(1)(a).
[26]Jury Directions Act s 20(1)(b).
[27]Jury Directions Act s 21.
There is no dispute that the evidence of the applicant’s conduct on which the prosecutor relied was evidence of post-offence conduct. The prosecutor submitted to the jury that the evidence established that the applicant did not call 000 during a period of at least seven minutes when he was aware of the fire. This period commenced after the event said to constitute the offence charged, the alleged lighting of the fire.[28] The applicant’s conduct in this period (including his omissions) therefore constituted ‘conduct’ for the purpose of s 18. The question is therefore whether the prosecutor relied on evidence of that conduct as evidence of ‘incriminating conduct’, ie, as evidence of an ‘implied admission’ that the applicant had committed the offence charged or an element of the offence charged.
[28]The respondent initially sought to characterise the conduct as conduct that occurred ‘in the midst of the offence’ while the fire was still damaging the building, but ultimately conceded that the trial had not been run on the basis that the offence was a continuing offence.
Where an accused person has previously made a representation that is adverse to that person’s interest in the outcome of their criminal proceeding, that representation is an admission.[29] An ‘implied’ admission is an admission which is inferred from conduct. Thus, various authorities of this Court on pt 4 div 1 of the Jury Directions Act state that to engage in incriminating conduct reasoning is to infer an admission of guilt from certain conduct of the accused.[30]
[29]See the definition of ‘admission’ in the Dictionary to the Evidence Act 2008, which provides a useful reference point in circumstances where ‘admission’ is not defined in the Jury Directions Act.
[30]See, eg, Di Giorgio v The Queen [2016] VSCA 335, [26] (Redlich, Tate JJA and Beale AJA); Pompei [2023] VSCA 71, [39]–[40] (Beach, T Forrest and Kaye JJA).
Here, the respondent says the inference that the jury were invited to draw from the conduct of the applicant in failing to call 000 for the seven minutes or more when the building was on fire, was not that he had lit the fire, but that he wanted the fire to continue. That inference, together with the balance of the evidence in the trial, would then make it more likely that the applicant lit the fire. That submission, however, is contrary to the language used by the prosecutor — who told the jury that ‘the only reason’ the applicant would not call 000 was ‘because he lit the fire, and he wanted it to continue’. By inviting the jury to reason that the applicant delayed calling 000 because he lit the fire, the prosecutor invited the jury to treat the fact of that delay as amounting to an implied admission by the applicant that he committed the offence of arson.
Nor was it an answer for the respondent to point to the lengthy discussion with the judge prior to the prosecutor’s closing address, which led the prosecutor to ‘refine his course’ overnight. What matters is how the jury were ultimately invited to use the evidence. For the reasons we have given, they were invited to use it as evidence of incriminating conduct.
Further, and for completeness, having read the transcript of that discussion, it appears that the prosecutor, defence counsel and the judge may have at times been labouring under the misapprehension that reliance on the applicant’s conduct inside the building (as opposed to outside the building) could not constitute reliance on incriminating conduct reasoning. Of course, because the event said to constitute the offence charged was the alleged lighting of the fire, any conduct the applicant engaged in after the fire commenced fell within the term ‘conduct’, and therefore ‘incriminating conduct’ for the purpose of s 18 of the Jury Directions Act, regardless of whether it occurred inside or outside the building. This misapprehension may go some way to explaining why defence counsel did not complain about the prosecutor’s reliance on the applicant’s conduct as evidence of incriminating conduct.
Error having been established, the respondent concedes that there has been a substantial miscarriage of justice.[31] We proceed on the basis of that concession. We are fortified in our position by the extensive protections provided by pt 4 div 1 of the Jury Directions Act, which evince a recognition of the dangers of misuse to which this kind of evidence gives rise. Without a direction, for example, that the jury could only use the evidence of the applicant’s delay in calling 000 as an admission of belief in his guilt if ‘the only reasonable explanation’ for his conduct was such a belief,[32] there was a real risk that the jury would misuse the evidence. If the evidence was to be used as the prosecutor invited the jury to use it, the statutory directions needed to be given. We say nothing as to whether, had notice been given as required by the Jury Directions Act, it would have been open to the prosecutor to advance the argument he did. That matter was not raised in this application.
[31]Criminal Procedure Act s 276(1)(b).
[32]Jury Directions Act s 21(1)(a)(ii).
We will grant leave to appeal on proposed ground 2 and allow the appeal.

Proposed ground 1: Prosecutor’s objections, cross-examination and closing address

In light of our decision in relation to proposed ground 2, it is strictly unnecessary to address the remaining proposed grounds. However, given the parties directed submissions to each proposed ground, we will deal with them relatively briefly.
By proposed ground 1, the applicant contends that the prosecutor’s conduct of the trial tended to reverse the burden of proof, interrupt the flow of the defence case, and distract the jury.

The parties’ submissions

The applicant submitted that notwithstanding a substantial body of evidence supporting the hypothesis that the fire had been started by a heater or by a faulty downlight, the prosecutor repeatedly asserted (by making various objections, and by statements made in his closing address) that the hypothesis lacked an evidentiary foundation and was speculative, and that the applicant had no explanation as to how the fire started. This was said to reverse the burden of proof.
The applicant also referred to propositions put to Mr Glover in cross-examination which were said to reverse the burden of proof, including that Mr Glover had not inquired as to whether the downlights at the premises were quartz-halogen or LED, that he did not know where any heater would have been located, and that there was no evidence a heater was tipped over.
The applicant referred to other aspects of the prosecutor’s cross-examination of Mr Glover which were said to have caused unfairness, including:
(a)putting to Mr Glover that NFPA 921, which the prosecutor referred to as ‘the Bible’, required that he attend the scene to investigate the fire, which was said to be both contrary to the evidence and inflammatory;
(b)putting to Mr Glover the inadmissible opinion of Mr Chapman that the fire had been ‘driven by something’;
(c)‘bizarrely and unfairly’ attacking Mr Glover’s statement in his report that he did not have a personal or professional association with the parties;
(d)putting an incorrect account to Mr Glover of what the applicant had told police about where he had been in the premises prior to leaving; and
(e)‘objecting’ to defence counsel’s objection to the prosecutor putting to Mr Glover times according to the CCTV footage, which had not yet been established as accurate.
The applicant also referred to passages from the prosecutor’s closing address that were said to involve repeated reversals of the burden of proof, including the following:
(a)‘there are over a thousand questions in that first record of interview, and … I don’t think the word, “heater” he actually mentions once. In other words, the next day when he’s being interviewed, he does not proffer the explanation that the fire might have started by the heater’;
(b)‘despite being there in the room, his explanation is really: “I’ve got no explanation as to how this fire started, I didn’t hear it, see it, smell it”, this fire that must have been going for at least seven minutes whilst he was in there’;
(c)‘even if there was nothing left of the heater, you still need to have some evidence … that tells you how this heater might have started a fire, and there is just no such evidence … you’d be just guessing that the heater was the cause of it’; and
(d)‘this man who’s last out of the building, is there at the scene, sees nothing, hears nothing, smells nothing and really gives you no explanation as to how this fire might’ve started’.

The applicant submitted that although the prosecutor agreed, following an objection by defence counsel, to correct any misapprehension he may have caused about the burden of proof in his closing address, his correction was inadequate.
In response, the respondent submitted that the prosecution case was that the only reasonable inference available on the evidence was that the fire was deliberately lit by the applicant. Thus, the prosecutor was entitled to argue that the defence hypotheses were unreasonable. He was entitled to highlight the deficiencies in Mr Glover’s evidence, including his failure to inquire about the type of downlights installed; and gaps in the evidence, such as the location of any heater, and whether it had been tipped over.
The respondent accepted that the prosecutor raised objections asserting that the defence hypotheses lacked an evidentiary foundation or were speculative. However, of the five objections raised, only one was upheld. The judge also counteracted any suggestion by the prosecutor that defence counsel’s questioning on those hypotheses was improper.
As to the applicant’s complaints about the prosecutor’s use of the NFPA 921, the respondent submitted that Mr Glover agreed that a fire could not be investigated without attending the scene, and submitted further that describing the NFPA 921 as ‘the Bible’ was not inflammatory. It was no more than a reference to Mr Glover’s evidence in chief that the NFPA 921 enabled fire investigators to ‘all sing off the same hymn book’.
As to the applicant’s complaint that defence counsel put Mr Chapman’s opinion that the fire had been ‘driven by something’ to Mr Glover, the respondent submitted that defence counsel did not object. And the judge clarified that Mr Chapman’s opinion was not to the point.
As to the applicant’s complaint that the prosecutor attacked Mr Glover’s independence, the respondent submitted that the flaws in the prosecutor’s attack were quickly pointed out by the judge.
As to the applicant’s complaint that the prosecutor put to Mr Glover an inaccurate account of what the applicant had said about his location in the premises at the time the fire was allegedly burning, the respondent submitted that defence counsel pointed out the inaccuracy before Mr Glover answered, which led to the prosecutor reading (accurately) from the applicant’s record of interview.
And as to the applicant’s complaint about the prosecutor ‘objecting’ to defence counsel’s objection to the use of unverified times based on the CCTV footage, the respondent submitted that the prosecution had conducted its case on the basis that the times noted on the CCTV footage were not the subject of challenge. Defence counsel had not flagged the issue in the defence response, had told the judge that all issues concerning the CCTV were ‘resolved’, had permitted the tender of CCTV footage without objection, had tendered his own clip from the CCTV footage, and had cross-examined witnesses on the implicit basis that the times in the CCTV footage were correct. In any event, the accuracy of the timestamps on the CCTV footage became inconsequential as the trial proceeded. Defence counsel elicited evidence from ADS Folvig that the timestamps on the 000 calls and the CCTV footage were ‘relatively consistent’ and quoted the timestamps during his closing address.
Finally, the respondent submitted that the prosecutor’s correction to his closing address, after defence counsel took exception, addressed any concern that the prosecutor had reversed the burden of proof:
I may have given you the impression that for some reason or another, [the applicant] bears some burden of making an explanation. Well that’s — he doesn’t have to do that. He’s not under any obligation to make any explanation. What I was putting to you was and argued with you that there were two hypothesises [scil, hypotheses] which defence would put forward as being reasonable explanations. Now I’ve asked you and argued before you that you can put those aside.
The respondent said that this was reinforced by the judge’s charge, in which she directed the jury that the burden lay upon the prosecution to prove the charge beyond reasonable doubt, and to exclude other reasonable hypotheses consistent with innocence.

Consideration

In a case that turns upon circumstantial evidence, a jury cannot return a verdict of guilty unless the accused’s guilt is the only reasonable inference that can be drawn from all of the evidence in the trial.[33] This was such a case, given that the applicant was the only person at the scene of the fire at the time of its ignition. Thus, the jury needed to exclude all reasonable hypotheses advanced by the defence before it could convict. For a hypothesis to be reasonable, it ‘must rest upon something more than mere conjecture’.[34] It must have a sufficient foundation in the evidence.[35]
[33]R v Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
[34]R v Baden-Clay (2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (emphasis omitted). See also R v Boyle (2009) 26 VR 219, 230–5 [41]–[59] (Weinberg JA, Williams and Coghlan AJJA); [2009] VSCA 289.
[35]Paulson v The King [2024] VSCA 188, [51]–[52] (Priest, Niall and Orr JJA).
There was evidence capable of providing some support for the defence’s hypotheses that the fire had been ignited by a heater or by a faulty downlight. For example, two of the three employees gave evidence that there was at least one heater that was sometimes used at the premises.[36] The evidence was also that it was a cold night. The evidential foundation for the downlight hypothesis was less substantial. There was, however, evidence of downlights in the north-western part of the premises, which were depicted in photographs of the premises taken before the fire.
[36]Ms Senevirathne’s evidence was that the applicant had a heater which he sometimes used in his favourite area to play snooker. Mr Muntaziri’s evidence was that there were multiple heaters, which were provided to customers if they felt cold: see [15] above.
As the respondent submitted, in his task of excluding the hypotheses advanced by the defence, the prosecutor was entitled to elicit evidence which made those hypotheses less likely to be true, and to advance arguments as to why they could be excluded. To the extent the prosecutor asserted that there was no evidentiary foundation for the defence hypotheses, it would have been more desirable had he directed his argument to showing the insufficiency of the evidentiary foundation (rather than asserting its absence), and the strength of the prosecution case.
However, having reviewed the transcript of the trial, including the prosecutor’s closing address (and his subsequent correction) and the judge’s charge, in our view, the jury would not have been under a misapprehension that the burden of proof lay anywhere but upon the prosecution.
As for the applicant’s various other complaints about the prosecutor’s conduct of the trial, we accept that the prosecutor’s conduct was in some respects wanting.[37] It was inappropriate, for example, to put before the jury Mr Chapman’s opinion that an accelerant was involved in the fire. It was not in dispute that the opinion was inadmissible, and the issue of whether an accelerant was involved had significant potential to affect the jury’s assessment of the applicant’s guilt. Nor was it appropriate to attack Mr Glover’s independence without foundation, as occurred. However, in both instances, the prosecutor’s conduct was swiftly addressed by the judge.
[37]See Subramaniam v The Queen (2004) 79 ALJR 116, 127–8 [54] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); [2004] HCA 51.
The applicant’s other complaints are of less substance. The prosecutor’s reference to the NFPA 921 as ‘the Bible’ can be understood as a reference to Mr Glover’s description of the NFPA 921 as the ‘hymn book’ from which ‘we all sing’. More importantly, Mr Glover readily accepted that it was necessary to attend the scene to investigate a fire. As for the applicant’s complaint that it was ‘wrongly’ put to Mr Glover that he had been at the bar instead of the counter at the time the fire was allegedly burning, the evidence was that either way, the north-western windows would have been in the applicant’s line of sight (see [98] above). As for the CCTV timestamps, for the reasons given by the respondent, any debate about the prosecutor’s ‘objection’ to the defence objection to reliance on the CCTV timestamps is arid.
Ultimately, the prosecutor’s conduct must be considered in the context of a 10-day trial, in which a substantial amount of evidence was adduced. Having reviewed the transcript, we are not persuaded that the conduct of the prosecutor caused a substantial miscarriage of justice.
Proposed ground 1 is without merit.

Proposed ground 3: Permitting the prosecutor to cross-examine Mr Birrell

As we have set out above, Mr Birrell was questioned at trial about what he could see inside the building on the night of the fire. At certain points he said that he could not see inside the building at all. At other points he said that he could see around the edge of a blackened window that the flames were inside, and the fire was ‘burning well’.
In his statement to the police before the trial, Mr Birrell had said that he could see ‘through a gap in the window that had not blackened up that the inside of the building was well alight and burning fiercely inside’.
The prosecutor was granted leave to cross-examine Mr Birrell on that part of his police statement, on the basis that the it was inconsistent with his evidence.[38] By proposed ground 3, the applicant contends that the judge erred in granting that leave.

The parties’ submissions

[38]Evidence Act s 38(1)(c).

The applicant submitted that Mr Birrell’s evidence that the fire was ‘burning well’ was not inconsistent with his earlier statement that it was ‘burning fiercely’. Further, when Mr Birrell’s evidence prior to the application to cross-examine was considered as a whole, it was clear that he had somewhat of a view into the building through the window, just as he said in his statement.
The applicant submitted that the prosecution’s cross-examination of Mr Birrell ultimately demonstrated that his evidence was not inconsistent with his police statement. This showed that the judge had been wrong to grant the prosecutor’s application to cross-examine Mr Birrell on the basis of a prior inconsistent statement.
The applicant further submitted that Mr Birrell’s description of the fire was important, as the extent of the fire in its early stages was relevant to the plausibility of the applicant being unaware of the fire while he was inside the building.
The respondent submitted that Mr Birrell repeatedly denied in his evidence that he could see inside the building or tell whether there was fire inside it. That was inconsistent with his police statement. So much was conceded by defence counsel, who had said:
In relation to the specific question of whether there’s fire inside the building or not, I agree there’s, on the surface, on the face of it, an inconsistency … .
So in relation to that issue, I don’t object to some leading questions to establish that he saw fire inside the building … .
On the basis of this concession alone, the respondent submitted, the judge was not in error in granting the prosecutor leave to cross-examine Mr Birrell.

Consideration

As the respondent submitted, defence counsel readily conceded that Mr Birrell’s evidence that he could not see inside the building was inconsistent with his police statement.
Further, in the context of this case, Mr Birrell’s evidence that he could see flames inside ‘around the edge’ of the window, and that the fire was ‘burning well’, was different to his more evocative statement to police that ‘the inside of the building was well alight and burning fiercely inside’. That is because this was a case in which even a small variation in the intensity of the fire could have made a difference to the possibility that the applicant was aware of the fire while in the building.
In these circumstances, the judge did not err in granting the prosecutor leave to cross-examine Mr Birrell. At the time that leave was granted, the evidence Mr Birrell had given was materially inconsistent with his police statement.
Proposed ground 3 is without merit.

Proposed ground 4: A combination or aggregation of defects

By proposed ground 4, the applicant contends that a combination or aggregation of defects identified in proposed grounds 1 to 3 gave rise to a substantial miscarriage of justice. Because we will allow the appeal on ground 2, it is unnecessary for us to say anything further about proposed ground 4.

Conclusion

For the reasons set out above, we will grant the application for an extension of time within which to file an application for leave to appeal, grant the application for leave to appeal against conviction on proposed ground 2, allow the appeal, and order a retrial. We will refuse leave to appeal on proposed grounds 1, 3 and 4.

[2024] VSCA 288

27 November 2024