R v Adair
[2019] ACTSC 97
•15 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Adair |
Citation: | [2019] ACTSC 97 |
Hearing Dates: | 17, 18 March, 8 May 2015 |
DecisionDate: | 15 April 2019 |
Before: | Penfold J |
Decision: | The accused is not guilty of the charge of arson. |
Catchwords: | CRIMINAL LAW – GENERAL MATTERS - Criminal Liability and Capacity – Trial by judge alone – arson – analysis of physical and fault elements – physical element proved – fault element not established beyond reasonable doubt – accused found not guilty. |
Legislation Cited: | Crimes Act 1900 (ACT) s 309 Criminal Code 2002 (ACT) ss 12(1), 13, 14(b), 15, 17, 18(2), 20(1), 56, 57(1), 404 Supreme Court Act 1933 (ACT) s 68C |
Cases Cited: | Fleming v The Queen [1998] HCA 68; 197 CLR 250 |
Parties: | The Queen (Crown) Jennifer Pauline Adair (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 179 of 2014 |
Introduction
Jennifer Adair has been charged with one count of arson in contravention of s 404(1) of the Criminal Code 2002 (ACT). The indictment alleges that on 7 March 2014 Ms Adair caused damage by fire to a building, namely the ACT Housing property in Ngunnawal (the house) in which she had been living, and that she intended to cause, or was reckless about causing, damage to that building.
Background
Ms Adair pleaded not guilty to the charge in the Magistrates Court on 7 August 2014 and was committed to this Court to stand trial.
On 31 October 2014 Ms Adair filed an election to be tried by a judge alone.
Trial by judge alone
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:
(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law she applied and the findings of fact she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict: Fleming v The Queen [1998] HCA 68; 197 CLR 250); and
(c)the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have to have been made, to a jury, in the proceedings.
Directions that would be given to a jury
In a judge-alone trial the judge must give herself certain general directions equivalent to those that would be given to a jury.
General directions
First are directions that relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with.
Accordingly, I direct myself that the prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish her innocence. She is entitled to be presumed innocent of any charge until her guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.
To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that she is very likely guilty.
If the accused offers or suggests an explanation which is consistent with her innocence, she is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence, but may accept part and reject part of the same witness’s evidence.
Directions about circumstantial evidence
In this case, the Crown relies on what is called “circumstantial evidence” in relation to the basic fact in issue in this trial, namely whether Ms Adair set fire to her house intending to cause damage to it, or being reckless about causing such damage. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of further facts. Accordingly, I give myself various directions about circumstantial evidence and how it may be used.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is directly capable of proving the guilt of the accused.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence.
In a circumstantial case no individual fact can prove the guilt of the accused. Because the Crown’s case depends on circumstantial evidence, I am asked to reason in a staged approach.
First, I am asked to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Each fact taken by itself cannot prove the guilt of the accused.
I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find in reliance upon those basic facts is that Ms Adair is guilty of the offence charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence, but it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular fact in isolation and ask whether that fact proves Ms Adair’s guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with her guilt.
The correct approach is, first, to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt.
I must then consider all of the established facts together as a whole and ask myself whether I can conclude from those facts that Ms Adair is guilty of the offence charged.
In order to satisfy me beyond reasonable doubt of Ms Adair’s guilt of an offence:
(a)the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence.
(b)It must then prove to me that the only reasonable or rational inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that Ms Adair is guilty of the offence.
If there is any other reasonable or rational conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case has failed.
In this case, the conclusion that the Crown says I should reach from the circumstantial evidence is that Ms Adair caused her house to be damaged by fire, intending to cause that damage or being reckless about causing it. The alternative hypothesis emerging from the evidence is that the fire began accidentally as a result of her conduct, but that at the time of her conduct she had no intention to cause damage to the house (or to any other building).
In considering whether Ms Adair’s guilt is a reasonable or rational inference from the evidence, and if so, whether there is any other reasonable or rational inference from that evidence, I must take account not only of the material presented by the prosecution but also the evidence presented in the defence case, and the submissions of both counsel.
Agreed facts
On 3 December 2014, the parties filed a statement of agreed facts, as follows:
The building
[The house] is a single level, brick veneer dual occupancy dwelling with a tiled roof. It is owned by the Australian Capital Territory.
Occupancy of the building
The accused signed a tenancy agreement with the ACT Government’s Housing and Community Services Directorate for the property on 16 December 2008. The accused lived there alone since her two teenage children moved out around December 2011.
The accused was at her premises alone at the time the fire started. The accused was seen by neighbours and attending police outside of the building during the fire and it was established that no one was inside the building.
The fire
Around 9:50am on Friday 7 March 2014, several neighbours observed smoke coming from [the house] and called 000. About 9.55am police and fire fighters arrived to observe the building to be well alight with smoke and flames through the windows and [a] partially collapsed roof. Fire fighters immediately commenced extinguishing the fire.
Upon full extinguishment, the ACT Fire and Rescue Station Officer conducted a preliminary inspection, declared the fire as suspicious, and handed the scene over to police. At approximately 3:20pm AFP Crime Scene Investigators commenced an investigation.
The damage
The estimated cost for reinstatement of the fire damaged premises is $162,613.
The accused
A neighbour, several police and the Fire and Rescue Station Officer attempted to check the welfare of the accused and engage with her. Those attempts were unsuccessful. The accused became increasingly defensive and aggressive, swearing, yelling incoherently, and wandering away. The accused appeared pale in the face, dishevelled and had ash marks on her arms and face. The accused stated that there was gas and then an explosion when questioned whether she knew how the fire started. Around 10:35am, the accused was apprehended and taken to the Canberra Hospital.
The accused later stated that she was surprised as to how rapidly the fire took hold and escaped through a window.
The investigation
Conclusions of the investigation include:
· There were no obvious signs of forced entry or criminal activity.
· A point of origin could not be found at the stove and oven.
· The kitchen, dining and lounge area sustained the greatest damage.
· A sample of liquid obtained from a 5L red container found in the shed was identified as petrol.
· Pieces of carpet from four separate sites had evaporated petrol identified on them.
· On the door of bedroom 2 there was an inverted “V” pattern with burn through into the bedroom door and carpet under it.
· A seat of the fire was in the hallway outside bedroom 2.
· At least one other seat of fire was at the living room, dining room and kitchen end.
· Petrol was introduced to the living room, dining room and hallway as an accelerant to initiate and/or increase the intensity or speed of the spread of the fire.
· The fire in the hallway and the fire in the northern end of the house were the result of direct human intervention and deliberately lit.
Ms Adair was arraigned before me and adhered to her initial plea of not guilty on 17 March 2015.
The trial took place over three days in March and May 2015, and at the conclusion of the trial I reserved my judgment.
The evidence
Witnesses
The prosecutor called seven witnesses, as follows:
(a)Ms Janelle Walshe, who at the time of the alleged offence was a neighbour and acquaintance of Ms Adair.
(b)Senior Constable Paul Stewart, one of the first police officers to arrive at the scene of the fire.
(c)Station Officer Andrew Cahill, a member of ACT Fire and Rescue, who attended the scene of the fire.
(d)Mr Evan Robinson, a crime scene investigator with the Australian Federal Police.
(e)Dr Rhonda Dotson, a psychiatrist who had assessed Ms Adair for the purposes of s 309 of the Crimes Act 1900 (ACT).
(f)Ms Naomi Spears, a forensic chemist in the Chemical Criminalistics Team and the supervisor of Ms Laura Bowen, who had prepared a report about certain items seized from the scene of the fire.
(g)Detective Constable Joshua Kirkland, the informant in the matter, who visited the house at about midday on the day of the fire.
As well, a statement made on 10 May 2014 by Constable Conrad Mortimer, another of the first police officers to arrive at the scene of the fire, was tendered and received by consent.
For the defence, evidence was given by Ms Adair and by her former husband, Alistair Adair.
Other evidence
The following material was in evidence:
(a)Exhibit A: Constable Mortimer’s statement.
(b)Exhibit B: ACT Fire and Rescue Fire Investigation Report prepared by Station Officer Andrew Cahill.
(c)Exhibit C: two bundles of photographs (totalling 234 photographs) taken by Crime Scene Investigator Evan Robinson.
(d)Exhibit D: statement made by Mr Robinson on 2 June 2014 and attaching a report of his examinations conducted at the house on 7 and 8 March 2014.
(e)Exhibit E: extract (third paragraph on page 2) from Dr Dotson’s report dated 26 March 2014 of her s 309 assessment of Ms Adair.
(f)Exhibit F: statement made by Ms Bowen on 9 May 2014 and attaching a report of her examination of items taken from the house.
(g)Exhibit G: email dated 2 March 2015 to Detective Constable Kirkland from Ms Jenny Whichelo of ACT Housing & Community Services.
(h)Exhibit H: extract (sixth paragraph on page 1) from letter dated 16 May 2014 to Detective Constable Kirkland from Ms Louise Griffiths of Housing and Community Services.
(i)Exhibit 1: floorplan of living area of the house, marked by Ms Adair to show position of furniture before the fire.
(j)Exhibit 2: ACTEW AGL document including two photographs of the gas meter after the fire at the house.
Prosecution witnesses
Janelle Walshe
Evidence in chief
Ms Walshe said that at about 9.50am on 7 March 2014 her son told her that smoke was coming out of Ms Adair’s house. She went outside and saw smoke coming from the roof of Ms Adair’s house; she said “it looked like it was [coming from] above the kitchen.”
There were two or three people outside at that time, and Ms Walshe asked one of them if anybody had seen Ms Adair. That man pointed Ms Adair out to her, walking down the footpath off Gungahlin Drive; Ms Walshe approached Ms Adair and “just sort of held her”. Ms Adair was very pale and appeared to be in shock, and she did not respond when asked whether she was okay. Ms Walshe recalled that she did not think Ms Adair had been wearing shoes.
Cross-examination
Ms Walshe said that Ms Adair was wearing a brown dress. She did not notice anything unusual about Ms Adair’s hair or notice the smell of petrol or smoke on Ms Adair; nor did she observe any ash or soot on Ms Adair’s arms or face.
Senior Constable Paul Stewart
Evidence in chief
Senior Constable Stewart said that he had driven to the house after noticing smoke while he was driving through the Gungahlin Marketplace.
When Constable Stewart arrived at the scene, a bystander pointed out Ms Adair to him as the occupant of the burning house. Ms Adair appeared to him to be “slightly dishevelled, slightly manic and she had ash marks on her face and arms”. He explained that her facial expression gave her the appearance of being dishevelled, that her hair was “messed up” and that she wasn’t wearing shoes. He could not recall the size of the ash marks he observed on Ms Adair.
Constable Stewart had approached Ms Adair but, he said, she had responded aggressively, saying “I don’t want anything to fucking do with you. I don’t want to fucking talk to you”. Constable Stewart kept trying to engage with Ms Adair, but she continued to respond in the same way, and began retreating from the scene along a cycle path running west away from the scene of the fire. Constable Stewart had asked Ms Adair if she knew how the fire had started, and she had responded with words to the effect that “there was gas and then there was an explosion”.
Around this time, the fire brigade arrived. By then, the house was well engulfed by flames, with smoke and flame visible through the roof and windows of the building.
Cross-examination
Constable Stewart said that Ms Adair was standing no more than about 20 metres from her house when he saw her. He could not recall whether he observed ash marks on her hands. He agreed that she had offered an explanation for how the fire started, by referring to gas and an explosion; this was in response to a specific question that he had posed, after she had made it clear that she did not wish to speak to him and told him to “fuck off”.
After he spoke with Ms Adair, Constable Stewart said, he believed she continued moving away from the fire, until she was spoken to by other police officers about 50 metres away. He did not recall smelling anything, including smoke, on Ms Adair.
Constable Conrad Mortimer
Constable Mortimer’s statement (Exhibit A) recorded that he had arrived at the house immediately after the fire brigade, having followed a fire truck to the scene. On arrival he observed a crowd of people gathering on a grassy area at the end of the street, and he approached this group to speak to potential witnesses and manage traffic.
While Constable Mortimer was with the crowd he observed Ms Adair, walking back and forth on a footpath. He approached Ms Adair and tried to speak to her, but she ignored him and continued pacing. As he got closer to Ms Adair he noticed “a strong smell of smoke and observed soot on her face”.
Constable Mortimer observed that Ms Adair ignored ambulance officers who attempted to speak to her, and continued pacing, moving further from the scene of the fire. He and two of his colleagues approached her, intending to check on her welfare, but she screamed incoherently, at one point screaming “I’m so confused”.
At around this point Constable Mortimer formed a belief that Ms Adair might have been involved in starting the fire. Due to concerns for her welfare he and one of his colleagues took her into emergency protective custody and transported her to Canberra Hospital. He and his colleague arrived with Ms Adair at the hospital at about 11.08am, and at that time she was continuing to resist police. While at the hospital he observed Ms Adair “to have black under her fingernails, soot on her toes, shoulders and around her nose”.
Station Officer Andrew Cahill
Evidence in chief
Andrew Cahill had been a member of ACT Fire and Rescue for about 17 years. He was the Station Officer who attended the fire on 7 March 2014. Mr Cahill held a national competency in the conduct of fire investigation and analysis activities; he explained that this qualification included components on the identification of the causes and locations of fires.
Mr Cahill prepared a report about his investigation of the fire (Exhibit B).
Mr Cahill was notified of the fire at about 9.50am, and that he arrived at the house at about 9.56am. On arrival he observed the house to be well alight, with smoke and flames visible through the roof and windows, and the roof partially collapsed. He directed his crew to attend to the fire, and he entered the duplex house attached to the burning house in order to remove an elderly woman and her cats. Mr Cahill did not notice any smoke in the attached dwelling.
At some point Mr Cahill noticed that a gas pipe at the gas meter was alight, and he directed his crew to shut off the gas. While his crew were doing this, he said, the fire was put out.
Mr Cahill had been told that Ms Adair, the occupant of the house, was on a nearby footpath. He approached her and asked if she was okay, but she did not answer that question. She had confirmed that it was her house that had burned down, but when he asked her how the fire had started, she had responded by “throwing up her hands and walking off”.
After the fire was put out, Mr Cahill entered the house to try to find the cause of the fire. He began his inspection with the rooms that had sustained the most damage, namely the kitchen and dining area and the lounge room, which were all in the front part of the house. In this judgment I shall refer to this area as the living area, except where it is necessary to identify a particular room.
Mr Cahill said that there was a considerable amount of debris on the floor in the kitchen and dining room area due to the collapse of the roof. He had inspected the stove and oven, but could not find any sign that the fire had originated there.
Mr Cahill identified “bedroom two” (identified on an exhibited plan of the house as BR2) as the point of origin of a fire. There were two distinct “burn-through patterns” on the door to bedroom two:
(a)a burn on the top of the door; and
(b)an “inverted V” burn-through pattern lower down on the door, and on the carpet beneath the door.
Mr Cahill said that the burn at the top of the door was attributable to “overhead radiated heat coming from the lounge room area”.
In contrast, he said, an inverted V pattern was a “clear indicator” of a flammable liquid being poured and ignited in the area; it indicated that the fire which caused it had begun from the floor and made its way up the door before burning itself out due to depletion of its fuel supply.
Mr Cahill ruled out the gas meter attached to the house as a source of fire, saying that he had seen no indicia of the fire having been caused by gas. Although he had observed a burning gas pipe, the pipe was burning “upward and outward and the damage around that area of the house was less severe than inside the house”. He said that the side of the meter facing the house was damaged, while the other side was untouched, and that this provided a “directional indicator”, suggesting that the meter had been burned by heat radiating from within the house. He said that if the meter itself, or the connections to the meter, had been the source of the fire, he would have expected to see burn indicators on top of the meter and where the gas connections attached to it, and more substantial burn indicators in the guttering above the meter and on the downpipe alongside it.
Mr Cahill said that he had been able to determine the direction of the fire within the house by observing relative damage to different areas. He opined that the fire started in the northern end of the house, which included the living area, where the damage was most significant, and then began to travel south down the hallway towards bedroom three and the laundry, where the damage was least significant. He said that apart from the door to bedroom two, there were no other points of origin of the fire that he was able to identify “positively 100 per cent”.
He did, however, say that he observed some burn patterns on the floor of the lounge and dining room areas where stains or “scorch marks” had been left on the concrete flooring underneath the carpet. Mr Cahill opined that such a burn pattern, involving “small isolated spots”, was also consistent with the use of a flammable liquid on the floor, as distinct from the more even burn pattern that might be expected if the entire room had been engulfed in fire. He said that these burn patterns were what had made him decide to refer the fire to the police.
While assisting Australian Federal Police (AFP) Forensics officers, Mr Cahill had found a container of flammable liquid in the shed attached to the house. The shed was at the back (southern end) of the house, opposite the laundry door.
Figure 7 in the report included in Exhibit B is a photograph of the north end of the house (the living area); it showed the gas meter, and that the lounge room wall facing the side courtyard, which had a large window, had all gone. Mr Cahill marked on Figure 7 the burn patterns in the living area (mentioned at [56] above).
Cross-examination
Mr Cahill said that the gas pipe itself, which was copper, was not burning but that gas was burning as it came out of the pipe alongside the meter, creating “a big fireball ... coming from that area”. It seems that between the copper pipe that brings the gas to the house, and the copper pipe that carries the gas inside the house, there is a length of flexible hose that could burn, but Mr Cahill was nevertheless confident that the gas meter was not the source of the fire, noting that in such a case he would have expected to see more burning in the soffit underneath where the guttering attaches to the house.
Mr Cahill said that he had examined the gas heater within the house and that he had excluded it as a cause of the fire due to the level of damage he had observed.
Mr Cahill said that the burn patterns he had identified on the concrete floor in the lounge room were indicative of scorching, saying that they would have been caused when the fire burned through the carpet and underlay. He said that heat and burning are more intense at a point where accelerant has been applied, and that the “outer layers will burn until it burns itself all the way in and then uses all its fuel up”.
Mr Cahill agreed that in the lounge room, a large part of the roof had collapsed, and that during the fire, pieces of burning timber, Gyprock[1] and tile would have fallen from the partially collapsed roof to the floor of the lounge room. He said, however, that when Gyprock is exposed to fire it “doesn’t really burn”; rather, the cardboard in which the gypsum is encased burns, and the gypsum itself calcifies, or “goes powdery”. Mr Cahill agreed that there were magazines and other items, including furniture, on the floor of the lounge room, but said he was not surprised that the magazines didn’t burn, because when paper is packed together very tightly it is very difficult to ignite.
Counsel put to Mr Cahill that, if samples of carpet (the ones said to have had accelerant applied to them) were able to be removed for testing by the forensic investigators, that suggested that the heat was not so intense as to burn away the carpet and underlay and scorch the concrete. Mr Cahill explained that even where flammable liquid is exhausted it will still leave a residue, and that this residue is what the forensic investigators are looking for when they take samples. He did not directly address what seemed to me to be the import of the question, namely whether the parts of the carpet that had survived the fire sufficiently to be removed for analysis would have caused scorch marks on the concrete.
Mr Cahill agreed that while irregular burn patterns can be a sign that flammable liquid has been used, they can also be caused by drop-down, where items such as clothes or material from burning furniture drop down onto a floor or other surface. However, he held to his view that the irregular burn patterns in the living area were caused by fire burning from the floor up, rather than debris falling on the floor, saying:
For it to continue to burn with intensity to burn down through the carpet instead of heat rising up is more characteristic from burning from the floor up, not from debris falling on it.
Mr Cahill said that irregular burn patterns were also visible in other rooms, where there was furniture such as a table shielding the floor.
Mr Cahill agreed that there was fibreglass insulation in the roof space of the house. He said that such insulation would generally remain fairly intact, although melting in a very intense fire, but that it would not sustain combustion, and even in the form of ash it would not cause anything adjacent to it to catch fire. On the other hand, he said that “everything eventually gets destroyed by fire, no matter what”.
Mr Cahill said that he couldn’t comment on the combustibility of the carpet or underlay, because he did not deal with or test samples of it.
As to the marks on the door of bedroom two, Mr Cahill repeated his evidence that the inverted V pattern on the door was consistent with ignitable liquid being poured at the base of the door then being ignited, followed by fire travelling up the door and then self-extinguishing.
He noted that although the fire had progressed to some extent from the living area along the hall, it hadn’t burned significantly down the hallway because most of the pressure and heat had escaped through the roof and through the lounge room windows (which had been burned out in the fire).
Although the hallway ceiling and roof had suffered significant damage, Mr Cahill said, some of this damage was caused by firefighters pulling the roof down. The timbers in the hallway roof were intact, and the fire was travelling under the Gyprock ceiling, not above. Although there was burnt timber at the top of the doorway to bedroom two, the fire had not penetrated into the roof at that point.
Mr Cahill said that no “overhead debris from the roof” had been found at the base of the door to bedroom two, but in giving his evidence he seemed to be distinguishing between debris from the “roof area” as such (where, he said, there was no burning material) and other debris, for instance from the ceiling or the top of the door itself. He agreed that it had been hot enough in the hallway to damage the ceiling above the door to bedroom two (photograph 72 in Exhibit C shows that damage), but instead of considering the implication of this ceiling damage, he simply returned to rejecting the proposition that burning material falling from the damaged roof area above the door to bedroom two (which appeared in some of the photographs) could have created an inverted V burn pattern, explaining again that a normal fire burns outwards and displays “a normal V pattern”, while an inverted V pattern “is a sign of a flammable liquid being ignited and burnt”.
Mr Cahill pointed out that there were two scorch marks on the door concerned, one being “a tiny little insignificant one” and the other a larger one (similar but less dramatic scorch marks were found at matching points on the other side of the door). He gave evidence to the effect that if a piece of debris had fallen through on the outside of the door, “it would only burn the outside of the door. It wouldn’t travel underneath and go to the other side of the door and burn up as well”. This evidence seemed to require that the ignitable liquid on each side of the door was ignited separately, which in turn seemed to suggest the fairly unlikely scenario that the person who ignited the liquid had first ignited the liquid inside the bedroom and then closed the bedroom door and ignited the liquid in the hallway. He said that the scorch marks were both caused by accelerant, and that the smaller one must have resulted from a smaller amount of accelerant. Mr Cahill conceded that in the hallway, the fire below the larger scorch mark, appeared to have burned through both the carpet and the underlay and exposed the concrete.
Mr Cahill said that he had not found any flammable liquid inside the house, but repeated that he had found some in the shed (a red plastic drum or jerry can, sitting immediately above a lawn-mower, is shown in photograph 216 of Exhibit C). The shed was against a fence, and around three metres from the laundry door. Mr Cahill said that he had not picked up the jerry can, opened it, looked inside it or smelled it.
Mr Cahill had found “a tap running fully in the kitchen sink”, and that the drain under the sink had been disconnected (shown in photograph 213 of Exhibit C). The tap was running cold water. He had not been able to turn it off, because it was “fused open”, that is, the washer had failed, and the water was coming through. He had no explanation for the state of the tap, and any connection between the fire and the tap being on was unknown to him.
Mr Cahill had not seen any candles, but he did find the remains of some furniture, including what appeared to have been a sofa near the lounge room window. He conceded that one of the irregular burn patterns on the floor was in the vicinity of the sofa (see [58] above), and that there would have been drop-down from the sofa, but said that some areas of that burn pattern were “not really consistent with drop-down off it”.
Re-examination
Mr Cahill explained that in examining burn patterns, fire investigators take a “holistic approach”, by trying to determine what materials were present before the fire and searching for remains of those materials. He went on:
Normally synthetic clothing and cotton as well will leave traces on there because it’s fallen on the floor and it can’t all burn because it smothers part of itself. So you look to find leftover bits of clothing, furniture and damage to the concrete or timber floor underneath and the severity of the damage of the floor.
Mr Cahill said that, in seeking to explain the burn patterns in the living area, he had discounted scenarios to explain them that involved:
(a)Gyprock;
(b)pieces of burning beams from the roof;
(c)concrete roof tiles; and
(d)ceiling insulation.
He conceded that some of the burn patterns might have resulted from drop-down from furniture, but that “the damage underneath the floor suggests it’s more than a burn pattern from drop-down”. He emphasised that there were “ignition points throughout the house”, and that was what had created the suspicion that led him to refer the fire to the AFP.
Evan Robinson
Evidence in chief
Mr Robinson was a crime scene investigator with the AFP. He had attended the fire scene on the afternoon of 7 March 2014 following the initial determination that the fire was suspicious.
Mr Robinson had completed a NSW Fire Cause and Origin Course as well as a Graduate Certificate in Fire Investigation from Charles Sturt University. He had been investigating fires since 2008. He provided a series of photographs that he had taken at the house after the fire (Exhibit C) and a report of his investigations attached to a police statement (Exhibit D).
At the house, Mr Robinson did not see any signs of forced entry into the house or property, but he noted that his ability to look for such signs was quite limited due to the fire damage at the entry points. He saw that the electrical box and gas outlet were fire damaged.
Mr Robinson had identified two areas where the fire had started, one being at the northern end of the house (the living area) and one being outside the door to bedroom two. Outside that bedroom he had seen two areas of intense burning on the base of the door and on the carpet below. There was an inverted V pattern on the right side of the door and a smaller area of damage on the left side.
Mr Robinson explained that an inverted V pattern results when a fire begins burning down low, at floor level, and then, as it builds up in intensity, it combusts the fuel that is available around it and burns in a campfire shape.
Mr Robinson believed that the seats of fire at the northern end of the house and outside the door of bedroom two were unrelated, because of the distance between the two points, and because the damage to the bedroom door was inconsistent with natural fire spread from the lounge room. He believed there was at least one seat of fire in the living area, but was not sure of the specific location of this seat of fire.
Mr Robinson had found a number of pieces of carpet with an ignitable liquid odour in the living room, dining room, and hallway, and he said that there was possibly a connection between those points, or they might have related to different areas of fire (see photographs 88-108 in Exhibit C).
He had detected the “ignitable liquid odour” simply by using his nose, and, after the larger top layer of debris had been cleared away, he had recorded and photographed the relevant areas, and then taken samples of carpet and underlay from those areas. Figure 3 in his report shows the areas where he detected the odour. The samples he took were in better condition than other remnants, and a lot of the carpet had been consumed by the fire.
Mr Robinson then identified three areas as “potential ignition sources”, which are shown at Figure 3 in his report (Exhibit D); photographs 109-112, 113-116, and 124-125 (Exhibit C) are also relevant. At two of those areas he had found the remains of small candles, and at the third he had found the remains of a bracket or candelabra of the sort that holds candles such as small tea light candles (he could not say how many tea lights would have been held by the candelabra). As well, Mr Robinson had found “numerous tea light candles” in the debris on the kitchen countertop behind the sink.
The diagram at Figure 3 also shows 12 points (numbered 1 to 12) from which Mr Robinson took carpet samples because he could smell an ignitable liquid; the point numbered 13, in the main bedroom, was the place from which he took a reference sample.
Mr Robinson said that the samples he had collected were sent to AFP Forensic Services, where they were analysed by Laura Bowen. She had prepared a report identifying four of the carpet samples (including the reference sample) as having evaporated petrol detected on them.
The bottles in the kitchen and laundry labelled as containing mineral turpentine were confirmed as containing that liquid, but there was no evidence of turpentine in other samples. The five-litre container in the shed was found to contain petro (Exhibit F).
After the excavation of the interior of the house, the floors were washed and examined, and the furniture in the house, and its locations, were “reconstructed”.
Mr Robinson observed areas of burning and scorching on parts of the concrete in the living room, and there were also undamaged areas of the concrete. That didn’t tell him much about the fire, he said, because damage to the concrete can result from various different causes, including radiant heat produced by the fire, and burn patterns may result from different levels of protection from radiant heat in different areas.
Mr Robinson saw nothing to indicate that either the electrical box or the gas meter had anything to do with the ignition of the fire. I note that counsel’s question referred to “the electrical box or the gas meter or the gas”, but it was clear that Mr Robinson was only responding in relation to the box and the meter, given that his answer was based on “the damage to those items”; he considered that the damage to those items appeared to result from the fire escaping from inside the house via the window, rather than starting outside the house.
Asked about the direction in which the fire moved inside the house, Mr Robinson gave confusing evidence which needed to be explained at length and by careful and close examination of a number of his photographs. Provision of this explanation was not helped by the facts that the folders of Mr Robinson’s photographs provided to me and the various other participants in this part of the trial were not consistently numbered (or oriented) within the folders, and that the paragraphs of his report were not numbered at all. I express no view about whether un-numbered or inconsistently numbered items are more difficult to deal with for the various parties in court proceedings, but it is clear that each approach to documenting evidence is significantly unhelpful, as is a failure to number paragraphs in material that is to be referred to in evidence, submissions or other discussions.
For reasons explained below, it is unnecessary to describe in detail the confusing process by which Mr Robinson’s conclusions were drawn out, but his conclusions were, in effect, summarised as that Mr Robinson believed:
(a)that the larger fire had started in the living area and had progressed towards the hallway (burning north to south), rather than vice-versa;
(b)that the larger fire and the fire outside bedroom two had started separately;
(c)that petrol had been introduced to the living room, dining room and hallway as an accelerant to start, or increase the speed or intensity of, the fire; and
(d)that the two fires “were the result of direct human intervention and deliberately lit”.
My reasons for concluding that there is no need to go into further detail about these aspects of Mr Robinson’s evidence are as follows:
(a)his conclusions about the actual characteristics and the progress of the fire (at [95(a) and (b)] above) are consistent with those of Mr Cahill and were not challenged by the defence; and
(b)his conclusions at [95(c)] above began with a conclusion that petrol had burned during the fire (which is based on unchallenged forensic evidence), and go on to two further conclusions, being:
(i)that the petrol had been deliberately introduced; and
(ii)that it had been deliberately introduced with a view to causing or enlarging the fire.
The conclusions set out at [96(b)] above (although available inferences from the previous conclusions) are based only on those earlier conclusions, and are not the only inferences available from those conclusions.
The conclusion about deliberate human intervention in the start of the fire is a further inference that may well be available from the previous conclusions and inferences, but is also only one of the available inferences, and in any case is an inference that goes beyond Mr Robinson’s area of expertise.
Cross-examination
Mr Robinson’s qualifications include a degree of Bachelor of Applied Science (Forensic Investigation) from the Canberra Institute of Technology, which involved incidental study of fire investigation, and a Graduate Certificate in Fire Investigation from Charles Sturt University conferred in 2012, for which he studied over two years. In his work he attends a number of fires in the ACT each year.
Mr Robinson explained his report as indicating that, in the hallway, the structural beams were intact, but the ceiling (consisting of Gyprock sheets) was missing for most of the length of the hallway, and that at the northern end of the hallway it was possible to see daylight through the remaining beams and batons. This, he said, indicates that the hot layer of the fire (smoke and hot gases) had moved from the north to the south end of the house, igniting things along the way. He said that the fire had broken into the roof cavity, and ignited the insulation there.
Mr Robinson agreed that once the Gyprock ceiling had collapsed, he would have expected hot material to fall down through the cavities onto the floor, and noted that there were several pieces of Gyprock on the hallway carpet.
The hot gas layer moving from the north to the south end of the house would have caused the charring at the top of the doors in the hallway. Mr Robinson agreed that the top part of the door to bedroom two was missing, and that if it had not disintegrated by burning, it would have fallen onto the floor. He said that there had been “quite a bit” of debris inside the bedroom and some debris on the floor of the hallway outside the bedroom door.
One of the photographs taken by Mr Robinson showed a red bottle on the carpet near the door to bedroom two that appeared to him to contain some kind of detergent or laundry product, which was thick, like a liquid soap. In his report, he noted that it had “a cleaning product odour which was consistent with the description on the label”, that it appeared to have “thermal heat damage”, and that it could have been present before the fire.
Mr Robinson had looked at the electrical box and the gas outlet, but did not think there was any basis for a theory that the fire had been caused by a gas leak. There was no evidence of an explosion, which would have been consistent with a gas fire, and the fire damage near the electrical box and gas outlet appeared to have been secondary to the fire inside the house.
Mr Robinson had also examined the gas heater in the lounge room, and rejected the possibility that there had been a gas explosion inside the house, based on the facts that there was no displacement of the vertical surfaces in the room and there had been no reports of a loud bang from people in the vicinity of the house. Mr Robinson did accept, however, that it was possible there had been a small explosion not causing any structural damage.
Mr Robinson had looked in the garbage bin, where he found a lot of water bottles on top of an empty bottle of bourbon. He had assumed that the water bottles were left by the fire-fighters, but that they had not discarded the bourbon bottle. He had smelled the bourbon bottle, which smelled sweet, and like alcohol. Nothing in the bin smelled like petrol, kerosene or any other flammable substance.
The extensive damage to the main bedroom was in Mr Robinson’s opinion consistent with fire and heat passing through the wall (burning the first sheet of Gyprock and then moving through the wall cavity and burning through the second sheet of Gyprock), rather than with an explosion.
Mr Robinson agreed that the top part of the door to bedroom two had been severely damaged, and that this had resulted from the architrave being ignited by the heat generated by the layer of hot gases that had risen to the ceiling. That is, the burning of the top of the door was not caused by any flame from the bottom of the door but from heat coming along the hallway under the ceiling, and it was unrelated to the burning at the bottom of the door.
Mr Robinson believed that the burning at the bottom of the door was caused by the application and ignition of an accelerant, which had been placed somewhere in the doorway, either by being applied to the door so that it flowed down to the floor, or by being applied directly to the floor. He noted that there was burning on both sides of the door, but could not say whether accelerant had been applied to both sides of the door or had seeped through from one side to the other.
Despite his evidence at [102] above, Mr Robinson said that he didn’t think the fire at the bottom of the door to bedroom two could have been caused by drop-down, because there was no large debris outside or inside the door. Mr Robinson was not asked whether drop-down debris could have ignited ignitable liquid at the base of the door, or whether ignitable liquid would need to have been ignited separately on each side of the door.
Mr Robinson considered that the smaller area of damage at the base of the door to bedroom two (visible to the left of the main area of damage in photograph 75) could have been attributable to some kind of “secondary pool” of flammable liquid; this could have been caused if liquid poured at one point had pooled in two separate areas because the carpet surface was uneven or, if I have correctly understood his evidence, if liquid had being poured separately onto two different parts of the carpet. This smaller fire did not burn right through the door, which might have been due to the relative lack of oxygen in the small space under the door and a resulting slower development of the fire.
Mr Robinson was unable to identify any particular place as being the seat of the fire in the lounge room. He had detected an odour of ignitable liquid in 10 places in the living room, dining room and hallway, but he could not pinpoint which particular ignitable liquid odour he was smelling (for instance, whether it was petrol, turpentine or methylated spirits). However, he was sure that it was an ignitable liquid, rather than bourbon, beer or candle wax.
In the vicinity of the doorway to bedroom two, Mr Robinson said, he had been on his hands and knees crawling in the dirt and soot, but had only detected an ignitable liquid odour just at the base of the door, from the edge of one of the burn marks to the edge of the other. He had removed the entire area of the carpet that had been damaged. There was a hole burned in the carpet on both sides of the doorway. It looked like a ring, and the edges were “crispy, like melted plastic”.
Mr Robinson confirmed that there were nine places in the living area where he had detected the odour of ignitable liquid, and he had removed carpet from each of these areas. He explained that carpet preserves ignitable liquid quite well during fire, because the carpet absorbs and insulates the liquid and also because it may be protected by being covered by other items during the fire. As well, although the vapours from the liquid burn, the liquid itself has a cooling effect. These factors could contribute to the preservation of the carpet and the liquid. Mr Robinson said that he was not suggesting that each of the nine points at which he had detected ignitable liquid odours was ignited as a primary fire.
As to the remains of the tea light candles, Mr Robinson could not say when they had been burned, only that there was no wax left in the metal bases, which showed they had been alight at some point. The tea light candle remains were only significant, he said, as “potential ignition sources”, and he agreed that they could have been moved from their original locations during firefighting or as a result of the destruction of whatever they had been standing on. He could not point to any particular point in the north end of the house where the fire had started, and he did not attach any significance to the marks that he found on the concrete once all the debris had been moved.
Photos 213-215 of Exhibit C showed the bottle of mineral turpentine that Mr Robinson had previously referred to. It seemed that, during the fire, it had been under the kitchen sink in the position in which it was photographed by Mr Robinson.
Photo 216 showed the inside of the garden shed, where Mr Robinson found the red plastic jerry can containing petrol. He had taken a sample from the can, after moving it from its original position, but could not recall the exact amount of the sample he had taken (he believed that he had taken a photograph of the quantity removed, but was not able to identify it while giving evidence). His recollection was that the jerry can was about half-full at that point. He believed that the jerry can of petrol, as well as a bottle of mineral turpentine found in the shed (photographs 223-224), had been in the shed during the fire.
Apart from the mineral turpentine found under the sink, Mr Robinson had found nothing else “consistent with ignitable liquid”, despite looking in “all the usual places”.
Mr Robinson was aware that on the day of the fire, Ms Adair’s hands had been swabbed and her clothes taken for analysis, but he did not know the results of that analysis. He did not know whether the gas meter had been examined for any defects.
Re-examination
Mr Robinson said that a small gas explosion in the house could have been possible if there had been a build-up of gas that was then exposed to an ignition source like a direct flame. A number of factors would have needed to align for this to happen; first, it takes “quite a bit of time” for gas to build up, and then the gas would need to “find an ignition source on its own”. Mr Robinson had not observed anything suggesting that those factors had aligned in this case.
Dr Rhonda Dotson
Evidence in chief
Dr Dotson was a practising psychiatrist. After assessing Ms Adair for the purposes of s 309 of the Crimes Act, she had prepared a report on 24 March 2014. Exhibit E was an extract from that report.
Dr Dotson referred to the history given by Ms Adair of the events leading up to the fire. That history was as follows:
There are no details available regarding how she caused the fire – eg whether accelerant was used. Jennifer was unable to give an account of what had happened until later in her admission when she was recovering. Jennifer reported that she had been able to smell gas and that this was a problem known to Housing ACT. On the day of the incident, Jennifer had lit a candle and believes that this somehow burnt out of control. She denied purposefully lighting the fire or using an accelerant and was surprised as to how rapidly the fire took hold. She had not dressed for bed and escaped through a window whilst still dressed in her day clothes of jeans and a blouse.
Cross-examination
Dr Dotson explained that the first line in the history set out at [122] above was taken by the admitting doctor at the hospital, and that she had taken the rest of the history. She had also looked at Ms Adair’s patient progress notes from the hospital for “the period she was at the hospital in recent times”, except for some documents which she was not able to open.
Dr Dotson understood (apparently from the patient progress notes) that Ms Adair had made earlier references to a gas leak, and believed Ms Adair had said something in the nature of a denial of burning down the house. However, Dr Dotson could not recall reading the exact 20 March 2014 entry in the patient progress notes that Ms Adair “denies absolutely that she burnt down her house”. She said that when she spoke to Ms Adair for the purposes of the s 309 assessment, she was not interviewing her specifically to find out how the fire might have started.
Re-examination
Dr Dotson explained that the patient progress notes are “clinical notes which are taken on a daily basis in the process of caring for the patient”, and are intended to alert other medical practitioners in relation to the patient’s treatment and care.
Naomi Spears
Evidence in chief
Ms Spears was a forensic chemist, and Laura Bowen’s supervisor. She was aware of, and had reviewed, a report Ms Bowen had prepared in relation to items seized from the scene of the fire (Exhibit F), but had not herself been involved in analysis of the items. She explained the analysis processes used by Ms Bowen, and said that she had reviewed Ms Bowen’s work, that she could confirm that standard procedures were followed, and that she agreed with Ms Bowen’s results.
The relevant results of Ms Bowen’s testing as set out in Exhibit F can be summarised as follows:
(a)The three samples of liquid taken from containers in the house or the shed (identified as items 20, 23 and 25 in the report) contained liquids consistent with the labelling of the containers, that is, petrol (in one sample) and mineral turpentine (two samples).
(b)Ms Adair’s brown dress (item 1) had no ignitable liquid odour, and testing did not indicate the presence of any common ignitable liquid.
(c)Four carpet samples (items 10, 13, 14 and 18) taken from the house had no ignitable liquid odour, but testing detected evaporated petrol:
(iii)Item 10 had been taken from the area in the living room at the location of Marker 1 placed by Mr Robinson (shown in Exhibit D).
(iv)Item 13 had been taken from the area of the door to bedroom two, at Marker 6.
(v)Item 17 came from the dining room, at Marker 7.
(vi)Item 18 came from the main bedroom, at Marker 13.
Cross-examination
Ms Spears agreed that where, in relation to an item, Ms Bowen recorded “none” under the heading “Ignitable liquid odour”, it could be assumed that, in a controlled laboratory environment without other vapours or smells around, Ms Bowen had not been able to smell an ignitable liquid odour on the item. Such items included the brown dress (item 1), and several pieces of carpet or underlay (items 10, 13, 14 and 18).
Ms Spears explained that determining what is in a sample involves using a machine to separate the sample into individual chemicals. The operator then manually identifies the sample liquid by comparing the chemicals detected and the ratios in which they are present in the sample with similar properties in a sample that is known to be a particular material (eg petrol). Petrol and turpentine each contain about a hundred different chemicals.
Ms Spears agreed that some of the chemicals in petrol are also present in many other materials, but said that if the sample material were not petrol, there would not be the full suite of chemicals indicative of petrol present in the ratios indicative of petrol. She said that where Ms Bowen’s report said “no common ignitable liquid identified”, it meant that none of the common liquids tested for, including petrol, turpentine and diesel, was detected, but it did not rule out some other very rare ignitable liquids that are not tested for.
Detective Constable Joshua Kirkland
Evidence in chief
On the day of the fire, Detective Constable Kirkland, the informant in the prosecution, heard from other police about the fire, and that Ms Adair had been detained and taken to Canberra Hospital. That afternoon he was at the City Police Station, where police were preparing to conduct an interim forensic procedure on Ms Adair; this was to be done pursuant to authorisation granted by a Magistrate, because Ms Adair was believed to be suffering from a mental illness and, accordingly, to be incapable of consenting to the procedure. The procedure involved swabbing Ms Adair’s hands and feet.
Detective Constable Kirkland had observed that Ms Adair had black marks on her hands and feet, and marks on her face, but he was unable to determine whether the marks were dirt, grime or something else. He recalled that she had been wearing a brown dress, and this was seized for forensic analysis. He was later informed that no accelerant, or anything else of interest to the investigation, was found from the swabs.
Detective Constable Kirkland had made inquiries with ACT Housing and established that the house was an ACT Government property, that Ms Adair was the sole tenant, and that she had signed a tenancy agreement on 16 December 2008 (Exhibit H). He also learned that, during the tenancy, Ms Adair had made two complaints about leaks in the bathroom, and one about the removal of carpet, but no complaints about other residents, and there was nothing in the report that he received (Exhibit G) about any gas leaks.
Cross-examination
Detective Constable Kirkland did not enter the house on the day of the fire, and did not know whether any tests were carried out on the gas meter. In his statement, he had referred to Ms Adair having “black ash” on her hands, but he had formed the opinion that the marks were ash because of the fire. He only saw marks on her hands, not on her arms or face. He confirmed that the scrapings and swabs of Ms Adair’s feet and hands taken in the forensic procedure were negative for evidence of any accelerant, and the analysis of the brown dress detected no combustible or inflammable liquid.
Defence evidence
Jennifer Adair
Evidence in chief
Ms Adair said she had moved into the house around the end of 2008 and had lived there for five or six years. Her two children had lived with her in 2008, but had moved out when she had her first psychotic episode around 2011. Since then she had lived alone.
She had rented the house from ACT Housing and had never taken out any insurance, even on her own contents. Her own property included the furnishings in the lounge room such as a three-seater lounge, coffee table, filing drawers and side tables, all of which she owned outright.
Ms Adair believed the carpet in the house was a polyester blend and that the sofa was covered in a wool blend fabric. The side tables at each side of the sofa were made of pine. On the table to the left of the sofa were a number of items including a box of tissues, a few books, a candle and a container with nail care utensils in it. There was a small cabinet under the side table on the left, in which she kept her documents, such as tax records, certificates, and some of her children’s schoolwork. Under the coffee table Ms Adair had kept a collection of old National Geographic magazines that she had been given. She liked nature and science, and sometimes bought a National Geographic magazine for herself.
Ms Adair said that she had bought the bottle of mineral turpentine that was under the sink, although she couldn’t remember when, and that she did keep mineral turpentine and methylated spirits, usually in the shed, because she had done some painting. She had brought the methylated spirits into the house after she had accidently drawn on the whiteboard on her fridge in permanent marker; she had tried to use both mineral turpentine and methylated spirits to get the writing off the board.
Later in her evidence, Ms Adair explained that she had used the mineral turpentine when she had stained a small dining room table, while it was in the middle of the dining room, but that she was pretty sure she had put newspaper underneath in case she dropped any stain, and had used a cloth with mineral turpentine on it to clean up any drops. She could not recall when she stained the table, but “it was definitely before I was – became psychotic. Some months before”. Later, she gave evidence indicating that this would have been a reference to the 2011 psychotic episode (at [183] below).
Ms Adair had also painted the toilet “after the last time I was psychotic when I was well”, but could not remember exactly when that was.
Ms Adair said that she had “quite a few tea light candles”, and that she used them, and other candles, “for atmosphere in the night time”. She said that she didn’t always light them, but that she was “quite religious in putting them out every night”. The candle on the side table, however, was not a tea light candle but a different sort of candle, probably about three inches high. She recalled that she had had candles on both side tables, on the coffee table near the window, and on the television table, and in the kitchen, the bedroom and the bathroom. She also had a set of candelabra which she hadn’t used for a while. These candles were mostly tea light candles, but some were other kinds of candles.
Ms Adair confirmed that the red jerry can in the back shed (visible in photograph 216 in Exhibit C) contained petrol for the lawnmower. She could not recall exactly when she got the jerry can, but she had bought it around the same time she bought the mower, which was before her 2011 psychotic episode. She kept the jerry can in the shed, but she recalled bringing it into the house once, perhaps about eight months before the fire, when she was going to mow the back courtyard; she had not needed to take it into the house, but she had taken a short cut through the house rather than going a longer way around the back of the house to that courtyard. She was quite sure that the lid was on, and didn’t think that any petrol could have spilled at that time.
Ms Adair said that as well as the carpet, there was a large mat on the floor between the sofa and the TV. It was a hand-woven Persian-type mat that she had bought second-hand. She thought it might have been five or six feet long, and wide enough to cover the space between the sofa and the TV cabinet.
Ms Adair described the morning of the fire. She had been up all night and was tired. She had been mostly sitting on the sofa, and was playing with a candle on the side table to her left. The candle was lit and she had a pen in her hand, but she couldn’t remember exactly what she was doing. She thought she must have fallen asleep, as there was a gap in her memory between playing with the candle and waking up and seeing the whole side table on fire.
Ms Adair remembered lighting the candle; she thought she had lit it in memory of someone but she couldn’t remember who that was. The next thing she could remember was the whole table being alight; she demonstrated the flame being about eight inches high. She then gave this evidence:
… I already felt that the fire was out of control.
So you think you had been asleep before that?---I think so.
When you saw the flames that high, what did you do?---I panicked. I felt that it was out of control.
What did you do?---I went and got a saucepan of water and threw it over the fire and it didn't seem to have any effect.
Where did you get the saucepan of water from?---From the kitchen tap.
You say it didn't have any effect?---No.
What made you think that?---Because it kind of spat and it just disintegrated. It just didn't seem to do anything.
No?---I know that I was in a panicked kind of - I was feeling quite panicked.
What was the next thing you did?---Then I think I threw a tea towel over it, thinking that I needed to smother the fire, and then I threw a throw from the lounge over it. This wasn't actually helping either. Then I decided that I needed to throw something bigger over it, so I went into the bedroom and I yanked the doona off the bed, come back into the lounge room and threw that over the fire, and then at that point the whole fire just exploded; it just went, you know, whoosh, and I had to get out of the room straightaway.
Just going back, where did you get the tea towel from?---I think it was just lying around. The place wasn't very tidy. I was psychotic and I wasn't bothered about cleaning up.
So what did you do to throw the tea towel over the fire?---What did I do?
How did you throw it over the fire?---Just like that.
And that didn't work?---No.
Did the tea towel catch on fire?---Yeah.
The next thing you threw over was a throwover?---Yeah.
And that was on the sofa, was it?---Yes.
What sort of material was that made of?---That's - I think it's a polyester. It's a soft, you see them in the shops everywhere, they are soft throws.
What happened to the throwover?---Well, the fire just got bigger.
The next thing you say you did was you went into the bedroom. You grabbed a doona?---That's right.
Off the bed?---Yeah.
Is that bedroom number 1 on the left?---That's right.
You brought that back into the lounge room?---Yeah.
You said you threw that over the fire?---Yes, I did.
What happened then?---Well, the fire just exploded, it just went whoosh. I mean, to say the fire flared up doesn't really do it; it just took off straightaway, and immediately the heat in the room became so intense that I had to leave it.
Was throwing the doona over the fire the last thing you did to try and extinguish the fire?---It was the last thing I did, yeah.
So it got very hot ‑ ‑ ‑?---I remember feeling very confused about how I should go about trying to put the fire out, but I was trying to make an attempt to put it out.
When you decided it was time to leave, what did you do?---Well, when the heat in the room became so intense, and that happened - everything happened very fast, but when the heat in the room became so intense that I had to leave the room, I went into the hallway and I shut the door behind me and I went into the bedroom. I still wasn't thinking of leaving the house, because I had been holed up in the house, I'm not sure how long for, but for days, I wouldn’t leave it. I just went into the bedroom, just to get away from the fire, but I found that once I got there, I was coughing and spluttering and I couldn't breathe. I knew I had to get some air, otherwise I would collapse, so I went out through the nearest exit, which was the bedroom window.
After she got out the bedroom window, Ms Adair said, she went out into the street, and stood on the path for a few minutes, after which her neighbour, Janelle Walshe came out. She remembered Ms Walshe asking her if she was alright, but couldn’t remember what else Ms Walshe had said. Ms Adair described what happened when, later on, a fireman and a policeman had approached her:
Do you recall any of them talking to you?---I do. I recall police coming up to me or asking me to go to the ambulance van to be checked out but I wouldn’t do that because I didn’t trust anyone, I didn’t trust - I thought if I went into the ambulance van, they were going to kill me.
Why did you think that?---Well, because I was psychotic. I had been holed up in the house and I wouldn’t leave the house. I had no - I’m a smoker and I had no cigarettes. I wouldn’t go out and buy them. I had cats to feed. I wouldn’t go out and buy them food. I had no food. I wouldn’t go out and buy me food. I wouldn’t leave the house. I felt that if I left the house, I was going to be killed.
Ms Adair denied having deliberately started the fire:
All right. We’ve heard evidence that the fire officer and the fire investigator from the police believed that the fire was deliberately lit. What do you say about that?---Well, I say I did not deliberately light the fire. As I’ve just said, I didn’t want to leave the house. I had nothing in my mind about burning the house down. I felt as though I was safe inside the house and that’s why I wanted to stay. When I was playing with the candle, it was not a deliberate intention to start a fire. I was playing with it. I was playing with the flame. It wasn’t - you know, I really had nothing in my mind when I was doing that. It was quite thoughtless, you know, there was nothing going on in my mind. I was just doing it.
Okay. Well, you’ve heard people give evidence last time that they found traces of petrol in the carpet in the lounge/dining area and also in the hallway?---Well - - -
What do you say about that?---I say that the petrol can stayed in the shed the whole time. I never thought anything about petrol. I never thought - I wouldn’t - as far as I’m concerned, even though I was psychotic, I wouldn’t go near petrol.
She was shown the photographs of the door to bedroom two, and said that she did not at any time set a fire at or under the door to bedroom two.
Ms Adair said that the brown dress she was wearing when she left the house had been taken from her by police at the police station, and that police had also taken swabs of her hands and feet, which had charcoal on them. She could not explain the presence of the charcoal except by reference to the evidence she had already given about the fire and how she had responded.
She said that when she left her house she had no shoes on and had none of her possessions, explaining that she would not have had time to gather any possessions. She had not taken her wallet with her. She had waited outside her house for five to ten minutes before Ms Walshe came out to see her. She had walked up and down the path, but had not left the area and had not intended to leave the area. She had stayed in the area until police took her away.
Ms Adair couldn’t remember whether she turned the tap off after filling the saucepan at the kitchen sink, but didn’t think she would have, “because everything happened very fast … I wasn’t really thinking”. She had not disconnected the pipe under the sink. She also denied spraying or spilling petrol on the morning of the fire.
She gave evidence of having lit a fire the night before the house fire. Ms Adair explained that she had had burning tea light candles on the floor, and that she had “extended” the fire, and made it bigger, by putting “burning bits of paper” on the candles.. She said that the burning bits of paper were possibly on the floor, around the candles, which were just standing on the Persian mat. She had kept that fire burning for a couple of hours, and when she stopped adding paper, it went out. She could not remember whether that fire had done any damage to the mat. She described the process of keeping the fire going:
I was sitting on the left of the sofa and the fire was just below just where I was sitting, just below where I was sitting, because I was lying on the lounge and I'd lean over and put more bits of paper on, or I'd lean down; so I was sitting on the left‑hand side on the lounge and the fire was on the left‑hand side of the floor in front of the lounge.
In the morning, Ms Adair said, she had lit a candle on the table beside the sofa, but the fire on the mat had been out for hours. She then explained that she had been up all night “doing a percussion performance”, which she said involved tapping with a pen on different surfaces. She said that when she was doing the percussion performance, she went into the kitchen and tapped on different surfaces then went into the lounge room and lay back on the sofa. She had spent most of her time in the lounge, and occasionally went into the kitchen.
Ms Adair said that she had not lit any fires or candles in the hallway.
When asked about her comment at the hospital that she had smelled gas, Ms Adair said that she didn’t think it was the night she lit the fire on the lounge room floor. She explained:
So I think it was the night before that that I could smell the gas, and I remember that I was sitting on the lounge and my voice said to me - no, I said, "I can smell gas" and my voice said to me, "Don't worry, it's not really gas, it just smells like gas. It won't do you any harm."
So on the morning of 7 March when the fire actually happened, did you smell any gas ‑ ‑ ‑? ---I don't think I did.
You don't think you did?---No.
Asked about her intentions in lighting the fire on the night before the house fire, she said:
So did you want to set fire to your house that night?---No. No, I didn't. I was playing with fire, but I had no intention of burning the house down.
Just by way of explanation, why did you put these candles on the rug, on the floor ‑ ‑ ‑?---I really don't think there was much thought to it. It was a fire that I kept burning for quite a while, it was only a small fire, and during it I imagined that I was an incarnation of an American Indian, and the fire was quite smoky in the area where it was. There was smoke rising, and I would move, bring the smoke towards myself and then push it away again, in this kind of a motion.
What did the smoke smell like?
HER HONOUR: Sorry, can you just describe that movement from there, or I can ‑ ‑ ‑
MR DAVIES: You were making the smoke come towards you?---I was bringing the smoke towards me.
HER HONOUR: Two hands cupped to bring the smoke towards your?---Two hands cupped, and then pushing it away.
Okay, with the two hands again?---Yes.
Ms Adair marked, on a floor plan of her house, the location of furniture in the living area (Exhibit 1).
Cross-examination
Ms Adair believed that her 2011 psychotic episode had been around winter that year.
Ms Adair said that after the 2011 episode she went out from time to time, including to the shops, to the gym when she wasn’t working, for long walks twice a day, and for lunch every fortnight with her neighbour Ms Walshe, but she only occasionally went out socially. She did not have many visitors.
Asked specifically about the period before the house fire, Ms Adair said that she had not had any visitors whom she had allowed into the house. Some people had knocked on the door, but she had not answered the door to them; she understood that they were work colleagues who had come to see how she was going, because she had not been at work. As far as she was aware, during March 2014 (but, by implication, before the fire), nobody had come into her house except her.
Ms Adair said that by the time of the fire, the lawnmower had been broken for about four months, she had been getting someone to come around and do the lawns, and she did not have her whipper snipper.
Ms Adair agreed that there had been nobody in her house on the morning of the fire.
After she brought the methylated spirits into the house to clean the message board on the fridge, she had not returned it to the shed because it had not been cleaning the writing off very well. She thought she had put the methylated spirits under the sink, but it might have been sitting on the bench. She agreed that she also had mineral turpentine under the sink after her work on the small table, which she had done “a good period before” the fire.
She agreed that “with [her] interest in science”, which counsel suggested was demonstrated by the possession of old copies of National Geographic magazines (at [137] above), she knew that methylated spirits and mineral turpentine could be used as accelerants, but said “I certainly never thought of that. It didn’t cross my mind”.
Ms Adair agreed that she used candles to create “an ambience” in her house, that she had them all over the house on every table surface, and that, at the time of the fire, they were mainly tea light candles, but said that in her normal frame of mind, she always made sure she put the candles out so that she would not inadvertently cause a fire.
Asked about her use of candles on the evening before and the morning of the fire, she gave extensive evidence. First, she described her actions on the night before the fire:
In relation to 7 March 2014, where had you put the candles, if any, through the house?---Well, I can't remember exactly. There were some tea light candles on the cabinet where the TV was.
Right?---There was most likely, and I'm not a hundred per cent certain, on the coffee table. I mean, generally I had candles all over the place.
On that night you made sure that they were out by morning time?---I don't remember lighting candles ‑ ‑ ‑
I see?---‑ - - on that previous night.
All right, so you have no recollection ‑ ‑ ‑?---Except for the ones that I lit and put on the floor.
This candle that you said that you were playing with, you also ‑ ‑ ‑?---On the morning of the fire?
On the morning of the fire?---Yeah, well, I was also playing with candlelight on the night before this fire.
But they weren't alight that morning?---No.
The only candle that was alight on the morning of the fire was the candle that you say you were playing with?---That's right.
You were enjoying during the course of the night playing with ‑ ‑ ‑?
---Percussion. I was beating on different surfaces with a pen.
All right, so ‑ ‑ ‑?---I was beating out a beat.
How long did that go on for?---All night.
All night? You said something about your - about the reincarnation of an Indian, or something of that sort?---Yes.
Was that a ceremony that you performed?---It wasn't - well, I just did it. I guess you could call it a ceremony, but it was just something that I just did.
All right?---I was, I've had the thought that I was an incarnation of an American Indian and I was - I think, in hindsight I think I got the whole notion from the movie Dances with Wolves.
I see?---Where they were bringing the smoke towards them and then pushing it away, and I was doing the same thing. I mean, I didn't do that all night, I only did that on one occasion.
I see?---Yeah.
When you say you did that on one occasion, you were, as I understand it, correct me if I'm wrong, you were seated on your lounge?---Yes, I was.
And this ceremony, if I could put it that way, was performed directly in front of you?---Yes, well to the left.
To the left?---The fire was a little bit to the left.
You said that you were making smoke?---Well, I wasn't making smoke, the fire was making - the fire was smoky, but it was only smoky around the fire.
All right?---I didn't notice that the smoke was in the atmosphere.
All right?---If it was, I didn't notice, but it was quite smoky around where the fire was.
This was done by, what, placing bits of paper on a tea candle?---Yeah.
And then, in terms of the smoke, you are speaking about the smoke that the burning of that paper generated?---Yeah.
Do I gather from your evidence that that was very carefully controlled by you? ---Well, yeah. I certainly didn't let it go out of hand.
No, and you were aware that, you certainly wouldn't want it to go out of hand because it might have had some catastrophic consequences?---Yeah, exactly.
And you were - - -?---Well, I didn’t think of that but I mean I think I know when a fire is under control or it’s not under control in the - - -
Yes and so at this point in time, it was a - what I can infer from your evidence a pretty small fire?---Yes.
A fire generated by a tea light candle or something of that sort?---Yes, it started out that way.
And didn’t get much bigger, is that right?---No, I had a few tea light candles - - -
Yes?--- - - - around on the floor so when I was using the candle light to light this paper, then I would put the paper to the side. Eventually the fire grew, yes, so, I mean, it didn’t grow to an enormously big fire, it was just a small fire but it was bigger than the circumference of the candles that I had put in a circle on the floor.
All right. Now, this fire that you created, was it an intermittent fire, that is if a sheet of paper burnt?---I had to keep feeding the fire.
All right?---To keep it alight.
But at no time did it become a fire that was out of control?---No.
It was a small fire at best?---Yes.
Mr Cahill was not inclined to consider alternative scenarios, even in order to discount them. For instance, while repeating his evidence that an inverted V burn pattern indicated the burning of an ignitable liquid, he did not seem willing to address the related, but separate and in this case significant, question of how an ignitable liquid might be ignited in a particular case. Instead, he avoided the issue of whether an ignitable liquid could be ignited by drop-down debris by asserting that there was no drop-down debris found beside the door to bedroom two (at [71] above).
This evidence was inconsistent with the evidence of Mr Robinson at [102] above, and may also have been irrelevant: given that the carpet below the inverted V pattern had burned through to the concrete below, the absence of debris beside the inverted V pattern after the fire was extinguished would not seem to establish that there had not been any such debris at any point earlier in the course of the fire.
One of Mr Cahill’s closing comments, that there were “ignition points throughout the house” provided another example of his approach to challenges to his evidence and his conclusions. What had in fact emerged from his evidence and that of Mr Robinson was that, rather than numerous identified ignition points throughout the house, there was an ignition point at the door of bedroom two, and at least one ignition point somewhere in the living area the location (or locations) of which could not be more specifically identified. The evidence of two ignition points in the house (and the possibility of more) did not in my view justify Mr Cahill’s claim of “ignition points throughout the house”.
Mr Cahill’s refusal to consider the possibility that the bedroom door fire had been ignited by drop-down debris, and his exaggerated claim about the ignition points, detracted from the weight of his evidence more generally.
I do not doubt Mr Cahill’s technical expertise or his evidence about what he found in his investigation of the fire. However, his evidence about what he believed those findings to signify might have been more persuasive if he had been less defensive, and more willing to engage with counsel in a measured way, about the basis for his conclusions and about whether the evidence allowed for any alternative conclusions.
Jennifer Adair
Ms Adair appeared to be an intelligent and thoughtful woman with considerable self-awareness, including an understanding of her own mental health challenges. It was notable that, despite her obvious grasp of the nature of the charges and the evidence against her, she did not take advantage of various opportunities to give evidence that would have helped her defence. The most obvious example of this related to the presence of petrol in her house (at [142] above) – it would have been easy for Ms Adair to give vague evidence of having spilled petrol in the house at some time before the fire, perhaps in the course of an abortive attempt to mow her lawn, and such evidence would have been almost impossible to controvert.
There was nothing in the way Ms Adair gave evidence that caused me to suspect her honesty, although the content of her evidence raised some questions about the accuracy of some of her perceptions about the progress of the fire.
Physical element – consideration
In this case, there are two distinct scenarios for the start of the fire that eventually destroyed Ms Adair’s house.
The Crown case is that Ms Adair deliberately distributed petrol around various parts of her house and then set fire to the petrol. It depends almost entirely on the evidence of multiple seats of fire and the presence of petrol in various parts of the carpet.
I note for completeness that the dispute about how much petrol was in the jerry can after the fire did not in my view go anywhere. It was clear that the jerry can was not full, and was not empty. However, neither the evidence of petrol odour being smelled by Mr Robinson and evaporated petrol being detected by Ms Bowen, nor any other aspect of the evidence about the fire, its cause, and its progress, seemed to raise any question to which a useful answer would have been provided by a finding about how much petrol had been in the jerry can after the fire.
Ms Adair described lighting several fires during the night before the fire broke out, both by lighting candles and by setting fire to small pieces of paper which she put on the floor near the sofa, creating a fire on the floor that was “bigger than the circumference of the candles that [she] had put in a circle on the floor” (at [166] above) and has given evidence of the presence of petrol in her house from time to time. She has, however, denied deliberately setting fire to her house.
Each party’s proposition, however, can be expressed as that Ms Adair originally (and deliberately) lit the fire or fires that eventually caused the destruction of her house. I am satisfied beyond reasonable doubt that it was a fire or fires lit by Ms Adair that caused the fire that destroyed her house (that is, that Ms Adair caused the damage to the house that resulted from the fire).
Physical element – conclusion
This is sufficient to make out the first, physical, element of the offence charged. I do not at this point need to identify whether I am satisfied that the acts of igniting the relevant fires were those reported by Ms Adair in her evidence or those alleged by the Crown.
Fault element – consideration
The prosecutor has submitted, and defence counsel has conceded, that if I find that the fire was started as a deliberate act by Ms Adair, I may infer that she intended to cause the damage resulting from the fire.
This proposition, despite being agreed between the parties, is in my view potentially misleading, and requires some teasing out. That is because in this case the reference to starting the fire as a deliberate act conflates the physical and fault elements of the offence concerned. It is also because a fire is not an easy thing to define: a burning match or candle involves a fire (albeit small and generally short-lived), but whether a burning curtain that has been ignited using the match or candle is a separate fire, or whether a fire ignited not by contact with a flame but by radiant heat from a fire some distance away is a separate fire, seems to be a matter for philosophers (and perhaps firefighters) rather than for lawyers.
Section 404 carefully avoids any reference to a particular fire, and refers instead to the result of the accused’s conduct, namely that property damage is caused “by fire”. It is therefore unhelpful, in considering whether the physical element of this offence is made out, to focus on the state of mind of the accused at any point instead of the factors relevant to causation.
Arson, like many other offences, involves an event and the intent with which the event was brought about, for the obvious reason that many events may be brought about either deliberately (with or without a lawful excuse) or by accident. Whether bringing about a particular event is a criminal offence depends not only on how the event occurred but on the state of mind of a person responsible for the event occurring.
Both the Crown and the defence cases involve Ms Adair starting a fire or fires by a “deliberate act”, not by an accident: the Crown case is that she deliberately ignited petrol that had been poured on the carpet (presumably also by her), while Ms Adair’s explanation involves deliberately lighting candles and pieces of paper in the course of her ceremonies. There is no suggestion of a fire starting, or being started, by accident, although Ms Adair’s evidence suggests that a deliberately-started fire later expanded through no fault of her own.
However, this means that:
(a)contrary to the Crown submission and the defence concession; and
(b)because the first (physical) element of the offence does not involve a consideration of the fault element of the offence;
a bare finding that the first element is satisfied (that is, that Ms Adair was responsible for the house fire and therefore “caused” the fire damage) does not lead automatically to a finding about the second element, Ms Adair’s state of mind at the time of the fire.
Rather, the finding required for the physical element of the offence, that Ms Adair’s conduct caused property damage by fire, leaves the fault element still open for consideration. My consideration of Ms Adair’s state of mind at the time of the fire does, however, require a consideration of how Ms Adair was responsible for the fire (that is, did she deliberately start the house fire, as alleged by the Crown, or did she deliberately start a fire or fires that, without any intention on her part and despite her efforts, developed into the fire that effectively destroyed the house?).
First, I am satisfied by the expert evidence that there was some kind of accelerant in the area of the door between bedroom two and the hallway, and that when that accelerant was ignited, it caused the fire that produced the inverted V burn patterns on the door. I am also satisfied that there was petrol at various places on the carpet in the living area, and that the petrol burned when it was ignited.
I am further satisfied that the accelerant in the hall, and the petrol in the various parts of the living area, got there as a result of human intervention; accelerants of any kind do not transport themselves into people’s homes and spill themselves onto carpets.
I am also satisfied that Ms Adair was responsible for igniting at least the fire in the living area, in that her actions resulted in that ignition. How she did this is a more complicated question.
Ms Adair’s evidence about her actions overnight before the fire provide at least two possible explanations for the start of the living room fire: either:
(a)the candle with which she had been “playing” when she drifted off to sleep (at [167] above) set fire to some part of her soft furnishings or other items in the area; or
(b)the fire which she had been burning on the carpet over an extended period earlier that night (at [166] above) had continued to smoulder after she abandoned it, and burst into flames some time later.
The Crown case requires me to reject Ms Adair’s evidence about how she spent the hours before the fire as an explanation for the fire and to accept a third explanation, being that Ms Adair ignited both the fire in the living area, and the fires at the bedroom door, deliberately after having spread petrol on the carpet.
The Crown case is, in effect, that the presence of accelerants on several parts of the carpet speaks for itself in pointing to Ms Adair’s intention to set fire to the house. However, there is also an alternative hypothesis for the presence of accelerants, being that petrol had been spilt on the hallway and living room floors at some point before the morning of the fire, either by Ms Adair or someone else, and had not been cleaned off or entirely dissipated before the time of the fire. This scenario is consistent with:
(a)the presence in the shed, after the fire, of a jerry can containing, although not full of, petrol; and
(b)the absence of any trace of petrol on either Ms Adair’s clothes or her body when she was taken into custody after the fire.
The evidence that, before the fire, a bottle of some kind of cleaning product had been lying in the hall near bedroom two may also be consistent with this scenario.
Ms Adair’s evidence that on one occasion she took the jerry can through the hallway to the shed (at [143] above), and that on another occasion she had a petrol-driven whipper snipper in the house and she was waving it around (at [175] above), would provide one possible explanation for the presence of petrol in the carpet, although I note that:
(a)she did not suggest in her evidence that either of those incidents had been particularly recent; and
(b)there was no evidence before me of how long petrol or other ignitable liquids remain ignitable after being exposed to the air.
There is also an alternative hypothesis for the ignition of the accelerant at the site of the hallway fire. This involves the hypothesised spilt petrol and the evidence, particularly from Mr Robinson, about the possibility of drop-down of burning debris in the hall. Photos 74 and 75 of Exhibit C show how much of the top of the bedroom door, and the wall and ceiling above it, were destroyed by the fire burning beneath the hallway ceiling. If there was an ignitable liquid on the floor at the doorway, it could easily have been ignited by burning debris falling from above. I note also that the small size of the burn patterns on the bedroom door suggests that the ignitable liquid fires at the bedroom door burnt out fairly quickly, which in turn suggests that there was not very much ignitable liquid at that location.
Mr Cahill’s evidence was that the inverted V burn pattern could not have been caused directly by drop-down of burning debris, but he did not address the possibility of such debris igniting an accelerant which then burned so as to create the inverted V pattern. He also said that there was no debris found at the bottom of the door (at [71] above), but as far as I can see this does not exclude the possibility of a small but still burning piece of debris landing on the floor, igniting the petrol and then burning away, in the same way that the carpet beside the larger inverted V pattern had burned away (at [71] above).
Mr Robinson also observed the inverted V burn patterns, and attributed them to burning ignitable liquid (at [83] above). He agreed in cross-examination that the top part of the door to bedroom two was missing, and that there had been debris inside the bedroom and on the hallway floor outside (at [102] above). In discussing the missing part of the bedroom door, Mr Robinson referred to the possibility that it had “disintegrated by burning”, a comment that, as far as I can see, could equally well have explained the absence of any significant debris outside the bedroom door by the time the fire was put out, even if there had been a drop-down of debris sufficient to ignite the petrol at the base of the door.
A further possible explanation for the development of the main fire from the small fire or fires begun by candles is raised by Ms Adair’s reference to her previous concerns about a gas leak (albeit concerns that do not appear to have been reported to the Commissioner for Housing), and by her evidence that she had smelled gas on the night of the fire (albeit evidence of a concern that she subsequently accepted might have related to a night before the night of the fire) (at [155], [168], [169] and [181] above).
I accept the evidence of Mr Cahill at [54]-[55] above and Mr Robinson at [104] above that the damage to the gas meter, and the gas connection, outside the house, suggested that they were affected by the fire burning in the house rather than having been the source of the fire.
However, that evidence does not seem to exclude a slow gas leak from the line bringing the gas inside the house, which, having built up an expanding body of gas over some minutes or hours, might have caused a small explosion at some point in the progress of the original fire, perhaps when Ms Adair tried to smother the fire by throwing first a “throw” and then a doona over it; either of those actions might have spread burning material around the room, or set up unusual air movements in the room, such as could have ignited a body of gas building up some distance from Ms Adair’s original fire or fires.
An hypothesis involving a gas leak inside the house was initially rejected by Mr Robinson in cross-examination, but he later conceded that a small explosion could not be excluded by the evidence he relied on to reject the gas leak hypothesis (at [105] above). In re-examination he described the circumstances in which such a small explosion might happen, while noting that he had not observed anything suggesting such circumstances (at [120] above).
It may be that the hypotheses proposed above, involving a smouldering carpet fire, spilt petrol or a slow leak from a gas line inside the house, could have been excluded by further evidence, such as evidence of how long petrol spilled onto a carpet would remain ignitable, or specific evidence of the scope for a leak from an internal gas line to cause a fire. However, in the absence of such evidence, I do not feel obliged to reject such possibilities.
As far as the cause of the fire is concerned, the state of the evidence leaves two problems for the Crown. In short, the evidence neither establishes the Crown hypothesis adequately, nor excludes alternative hypotheses consistent with innocence.
The evidence is that the fire started in the living area, and that at several points in that living area there had been petrol on the carpet. However, the forensic evidence of itself does not establish that the presence of petrol was causative rather than coincidental in the start of the fire. The evidence that the burn patterns on the door of bedroom two can be explained by the presence of the petrol detected on the nearby carpet does not positively establish that the petrol was deliberately ignited by human intervention rather than ignited by drop-down debris from the main fire. Thus, the evidence of the presence of petrol and of two seats of fire, while appropriately leading to further investigation of the circumstances of the fire, does not of itself establish intervention by a person intending to cause damage or reckless about causing it.
Furthermore, there is no support in the forensic evidence for the proposition that, if the fire was caused by human intervention that involved spreading and igniting petrol in various parts of Ms Adair’s house, it was Ms Adair herself who had intervened.
As well as the weakness of the evidence for the Crown hypothesis for the start of the fire, and the existence of apparently rational alternative hypotheses for the start of the fire which have not been excluded by any kind of expert evidence, there are other aspects of the evidence which raise doubts about the Crown case.
Most significant is the complete absence of evidence that Ms Adair had any kind of motive for setting the fire. Of course, the Crown is not required to establish a motive, but the existence of an obvious, or even possible, motive is certainly helpful when, as here, the forensic evidence about how a fire started is far from determinative.
In this case, there is no evidence that Ms Adair had any difficulties with her government house, or with her tenancy agreement, or that she was unhappy with the house she was living in and wanted the housing authority to move her to a different area or into a different kind of house. She had no insurance on her personal possessions, and nothing to gain from their destruction.
Furthermore, there was no evidence that Ms Adair had any personal, emotional or financial difficulties that might have inspired a “cry for help”. On her own evidence, Ms Adair was suffering a psychotic episode at the time of the fire, but there is evidence that, far from wanting help at that point, she had evaded her work colleagues who had called to check on her welfare shortly before the fire, and that the last thing she wanted at that stage was to be forced to leave her house. In the absence of relevant expert evidence, I cannot make a positive finding that Ms Adair did not set fire to her house as some kind of a “cry for help” – but nor can I conclude that Ms Adair had any kind of motive, or condition, that would explain a deliberate attempt to burn down her house.
Another minor difficulty for the Crown is the evidence of Mr Cahill that the kitchen tap was running when he entered the house after the fire. This is consistent with Ms Adair’s claim of having fetched water in an early attempt to put out the fire on the small table, and not consistent with a determined attempt to burn the house down.
I reject the prosecutor’s submission that Ms Adair’s limited description of her attempts to put out the fire should not be accepted (at [207] above). I accept the proposition that a fire needs oxygen to keep burning, but do not accept as reliable for current purposes the further propositions relating to doonas. First, I am not persuaded that the word “doona” means exactly the same thing to everyone who uses it, or that it reliably describes an item of bed linen made with a particular kind of fabric and contents such that all doonas can be assumed to have exactly the same effect when used in fire-fighting. The proposition that “if one smothers a fire with a doona, it will go out”, seems to be correct, since one of the meanings of “smother” is to put out a fire by covering it.[2] However the tautological accuracy of counsel’s proposition does not establish that any attempt, however desperate, to cover a fire with a doona will necessarily be effective to put it out.
Defence counsel submitted that remaining in the vicinity of the fire after Ms Adair had escaped through the bedroom window was not the action of a person who had deliberately caused the fire. However, I place little weight on the fact that Ms Adair remained near her house, noting that a thoughtful arsonist might realise that fleeing the scene of a fire could suggest a consciousness of guilt in the case of a person who was expected to be at that location.
I also place little weight on defence counsel’s suggestion that if Ms Adair had used petrol to accelerate the fire, it would have been more rational to use the whole contents of the jerry can and leave the jerry can to be destroyed by the fire. This might be a rational approach to setting fire to a building from outside where there are easy escape routes, but I am not sure that using up to 5 litres of petrol to start a fire inside a small house, and in such a way as to block the usual escape routes, would be particularly rational.
Fault element – conclusion
I have found that the forensic evidence before me, while certainly consistent with Ms Adair having deliberately caused the fire, has not excluded alternative and apparently rational hypotheses for the start of the fire that are consistent with Ms Adair’s innocence. Nor are the implications of the forensic evidence sufficiently clear to overcome the absence of other forensic evidence that might have been expected, and the absence of any evidence suggesting a motive for Ms Adair to act as alleged. Accordingly, and paying full regard to the forensic evidence as it is, I am not satisfied that Ms Adair deliberately spread petrol in various parts of her house and deliberately ignited it, and therefore, I am not satisfied beyond reasonable doubt that, whatever the exact details of her conduct, she engaged in that conduct either intending to cause, or being reckless about causing, damage to the house.
Verdict
Accordingly, the fault element of the offence has not been proved beyond reasonable doubt, and I therefore find Ms Adair not guilty of the offence charged.
| I certify that the preceding two hundred and seventy three [273] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 15 April 2019 |
[1] The word “Gyprock” was used many times in evidence and submissions, and was generally recorded in the transcript with an uppercase G. I have followed this approach in this judgment, although on the one hand I understand Gyprock to be a brand name and on the other hand I understood most if not all of the witnesses to be using the word as a generic term for plasterboard rather than as a reference to plasterboard of a particular brand.
[2] The Macquarie Dictionary defines “smother” to include “to extinguish or deaden (fire, etc.) by covering so as to exclude air” ( viewed 16 March 2019).
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