R v Adamson - [2018] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ADAMSON
[2018] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Lovell and The Honourable Justice Doyle)
1 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
An appeal against conviction.
The appellant was found guilty of arson following a trial by jury. The prosecution alleged that shortly prior to 8.25pm on 30 July 2016, the appellant deliberately lit a fire inside a townhouse in West Beach. This townhouse had been the residence of the appellant and his partner until their separation three weeks prior to the fire.
The appellant claimed to have been at the Glenelg Lacrosse Club at the time of the fire, which was located 800 to 850 metres from the townhouse. The appellant’s presence at the lacrosse club was supported by witnesses and objective evidence. However, the prosecution case was that there was a period of time between 8.08pm and 8.26pm within which the appellant had a sufficient opportunity to ride his pushbike to the townhouse and light the fire. The prosecution also relied upon a number of items of circumstantial evidence which it contended cumulatively established the appellant’s guilt beyond a reasonable doubt.
The appellant appeals his conviction on the sole ground of appeal that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence, and in particular his alibi.
Held per Doyle J (Vanstone and Lovell JJ agreeing) dismissing the appeal:
1. The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.
2. There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.
M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; The Queen v Nguyen (2010) 242 CLR 491; R v Wildy (2011) 111 SASR 189; Dodd v Western Australia [2014] WASCA 13, considered.

R v ADAMSON
[2018] SASCFC 114
Court of Criminal Appeal: Vanstone, Lovell and Doyle JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons written by Doyle J.
LOVELL J: I agree with the reasons of Doyle J and the orders he proposes.
DOYLE J: This is an appeal against conviction.
Following a trial by jury, the appellant was found guilty of arson. The prosecution case was that at some time shortly prior to 8.25 pm on 30 July 2016, the appellant deliberately lit a fire inside a townhouse on Military Road, West Beach. The appellant had been living in that townhouse with his partner (and their children) until their separation about three weeks prior to the fire.
The appellant’s evidence and case at trial was that he was at the Glenelg Lacrosse Club at the time of the fire and so had an alibi. There was some other evidence, including from prosecution witnesses, that placed the appellant at the lacrosse club both before and after the fire was lit. This included objective evidence (in the form of receipts and a photograph) placing him at the lacrosse club at 8.08 pm and 8.26 pm.
However, the lacrosse club was only about 800 to 850 metres from the townhouse, and the prosecution case was that the appellant had a sufficient opportunity to light the fire. He had a bicycle with him, and it would only have taken him a few minutes to ride the distance between the lacrosse club and the townhouse.
In addition to the evidence as to opportunity, the prosecution relied upon a number of items of circumstantial evidence which it contended, when considered together, established the guilt of the appellant beyond reasonable doubt.
On this appeal, the appellant’s sole ground of appeal is that the verdict of guilty was unreasonable and cannot be supported having regard to the evidence. In particular, the appellant contends that no reasonable jury could have rejected as a reasonable possibility that he was at the lacrosse club when the fire was lit.
The evidence at trial
In addition to a number of exhibits and witnesses of a relatively formal nature, the prosecution case consisted of evidence from the accused’s former partner (Ms Delarama), two police officers who had some relevant dealings with the appellant earlier in the day and also happened to be tasked to the fire at the townhouse (Officers Usher and Cliff), and some people who had been at the lacrosse club during the evening of 30 July 2016. The witnesses from the lacrosse club included two men who saw the appellant, namely a Mr Moore (who was the barman and sold the appellant at least two drinks) and a Mr Smith (who spent some time talking and drinking with the appellant). They also included Mr Haines and Mr Johnston, who came across the fire on their way home from the lacrosse club and notified the police of its existence.
The accused gave evidence to the effect that he did not light the fire, and indeed remained at the lacrosse club until after he heard and saw the fire engines that were responding to the fire travel past the lacrosse club. His mother also gave some limited evidence.
Some of the more significant objective evidence included receipts from the bar at the lacrosse club suggesting that the appellant bought drinks at 7.49 pm and 8.08 pm, and a ‘selfie’ photograph taken by the appellant at the lacrosse club using his mobile phone camera at 8.26 pm.
It is appropriate to summarise the evidence in some greater detail before returning to a more direct consideration of the matters in issue on appeal.
The appellant’s former partner and residence
The appellant had been in a relationship with Ms Delarama for about 16 years. They had four children together, although one died as an infant.
In the period leading up to their separation, the appellant lived with Ms Delarama and their three children in the townhouse. They did so as tenants under a lease. The townhouse was a semi-detached cream brick unit.
On 6 July 2016, following the breakdown of their relationship, Ms Delarama and the children moved out of the townhouse, taking only a bag of belongings each. The appellant also moved out, taking up temporary accommodation in a tent at the West Beach Caravan Park. Some jointly-owned furniture, including a bed, mattress and some whitegoods remained at the townhouse as at 30 July 2016.
The afternoon of 30 July 2016
During the afternoon of 30 July 2016, Ms Delarama requested that the police attend with her at the townhouse while she collected some property.
Uniformed police officers Usher and Cliff met Ms Delarama at a nearby location. They followed her to the townhouse, arriving between about 4.20 pm and 4.30 pm. Ms Delarama was also accompanied by her eldest daughter, a friend of her daughter, and an adult friend of her own with a van. They were intending to, and did, use the van to retrieve some of Ms Delarama’s belongings from the townhouse.
When they arrived, the appellant was present at the townhouse. He was upstairs taking apart a bed. There was no conversation between the appellant and Ms Delarama.
The police officers’ evidence was to the effect that they explained the reason for their presence to the appellant, and requested that he return in about an hour. The appellant’s demeanour was understanding and compliant, and he departed on a bike. The appellant was drinking when Ms Delarama and the police arrived. One of the police officers described him as appearing slightly intoxicated, and smelling of alcohol. He had a can of some alcoholic drink in his hand as he spoke to the police.
After about 20 minutes, the appellant returned on his bike. By this time his demeanour was agitated. One of the police officers recalled him having a bottle of beer in his hand. The police officers had a conversation with the appellant in which they asked him why he had returned early, and the appellant queried why Ms Delarama was permitted to remove certain items of property. The evidence of the police officers was that during this conversation with the police officers, the appellant uttered words to the effect of “fuck this, I might as well burn the house down” or “burn the house to the ground”. At the time the appellant said these words, Ms Delarama was no longer present at the townhouse. The appellant then left on his bike.
At the time of the police attendance at the townhouse, the interior of the townhouse had the appearance of a house which was in the process of being vacated. There was furniture in the front lounge room, including a mattress or mattresses leaning up against the front window.
The appellant’s presence at the lacrosse club
The lacrosse club was also on Military Road, about 800 to 850 metres from the townhouse where the fire occurred. It was an agreed fact that it would take about three minutes to ride a bike between the two (travelling at 17 kph). The lacrosse club was directly over the road from the caravan park where the appellant was staying. The lacrosse club consisted of playing fields as well as licensed clubrooms.
On Saturday, 30 July 2016, the lacrosse club was hosting its annual Alumni Day. This involved a number of lacrosse matches during the afternoon, followed by a “busier than usual” post-match event at the clubrooms which continued into the evening. The bar in the clubrooms was open, and there was a fire pit with a lamb spit on the patio out the front of the clubrooms. Beer was also being served from a keg near the fire pit. Attendees were eating, drinking and socialising both in the clubrooms and out near the fire pit.
The appellant attended the lacrosse club in the evening of 30 July 2016. Also present that evening were the prosecution witnesses Mr Haines, Mr Johnston, Mr Moore and Mr Smith.
Mr Haines was the club chairman. He played a competition match which concluded at about 2.45 pm. Mr Smith played in the same match. Mr Haines (together with his wife and daughter) stayed on at the lacrosse club following the conclusion of his match. They took a lift home with Mr Johnston (and his wife and daughter). Mr Haines estimated that they left the club at about 8.00 pm. As explained later in these reasons, they came across the fire in the townhouse on their way home, and telephoned emergency services.
Neither Mr Haines nor Mr Johnston recalled seeing or interacting with the appellant that night, either at the lacrosse club or as they approached the fire.
Mr Moore’s evidence
Mr Moore had managed the lacrosse club for a number of years and was generally familiar with the regular attendees at the club. He was the bartender on the afternoon and evening of 30 July 2016.
Mr Moore’s evidence was that it was the busiest night of the year at the lacrosse club, but that he remembered seeing a man who was not a regular in the clubrooms. There was no dispute that this man was the appellant. Mr Moore said that he first observed the appellant when he ordered a drink from Mr Moore at the bar.
Mr Moore recalled serving the appellant two mixed drinks. When spoken to by the police later that night he retrieved EFTPOS receipts for these two purchases. As mentioned, these receipts were in evidence and showed that the two mixed drinks were purchased at 7.49 pm and 8.08 pm. Mr Moore had a general recollection that the appellant might have used cash to purchase a third drink from him, but he could not be sure about that.
Mr Moore said that he recalled the appellant purchasing a drink, and then staying near the bar and talking with Mr Smith. Mr Smith was a regular at the clubrooms and was well known to Mr Moore. He saw the two of them speaking “say on and off for probably an hour or something like that”. He added that one of them might have “gone to the toilet or something like that” occasionally, but that they seemed to be in a fairly intense conversation. However, his attention was focussed on serving people at the bar, and there was a steady stream of customers during the evening.
Mr Moore’s recollection was that Mr Smith and the appellant were speaking in the bar area, and so within the clubrooms. He did not see them speaking outside the clubrooms. He did not recall them moving out to the fire pit, but said that if they had he would not have been able to see them through all the people.
When asked whether he was able to say when he last saw the appellant, Mr Moore said that “it would have been probably within 20 minutes” of the purchase of the second drink (8.08 pm), although he could not “specifically recollect a time”. He explained that his reference to 20 minutes was based on the fact that the average person takes up to 20 minutes to finish a drink. He was not able to say when the appellant left the lacrosse club. He acknowledged that it was very possible that the appellant went outside to the fire pit and keg after he left Mr Moore’s sight.
Mr Smith’s evidence
Mr Smith gave evidence that he was consuming beer from the conclusion of his lacrosse match at about 2.15 pm until the arrival of the police at around 11.00 pm. He said that by the time the police arrived he was intoxicated to the extent of about “seven or eight” out of 10.
Mr Smith said that some time after the conclusion of his lacrosse match, and after having drunk at least two to four beers, he became engaged in conversation with a man he had not met before. Again, there is no dispute that this man was the appellant.
Mr Smith said that they spoke beside the fire pit that had been set up on the patio out the front of the clubrooms. He denied talking to the appellant at or near the bar. He said they spoke for about 45 to 50 minutes. When asked whether there were periods during their conversation when they left each other’s company, he said “yes, for sure – either to get up to go to the toilet or to go and get another drink from the bar”. He said it was very busy at the club, and that there were line-ups to get drinks from the bar during the evening.
Mr Smith assessed his own level of intoxication at the time he commenced speaking to the appellant to be three or four out of 10. He said that he consumed about two more beers while speaking with the appellant. By the end of the conversation his level of intoxication was about five out of 10. He observed the appellant drinking alcohol, but said that he did not appear to be affected by it.
According to Mr Smith, his conversation with the appellant included discussion of a plan to set fire to a house. In particular, the appellant spoke of setting fire to a house remotely. He said it would require gaining access to the house, making sure no-one was there, planting a remote device and having an alibi. This topic occupied about three-quarters of their conversation. As to how the topic came up, Mr Smith said “it may have just flowed from things we were discussing previously”. Mr Smith said that he contributed to the discussion, adding “it was quite an interesting topic actually, especially when you’ve been having a few drinks”.
Mr Smith said that the appellant also disclosed some personal information to him during their conversation, including that he had two daughters (including a daughter who was playing lacrosse at the club that day); and that he was estranged from his partner. When talking about his former partner, Mr Smith said the appellant’s demeanour “wasn’t cheerful about it at all”; and that he displayed the range of emotions one might expect, including disappointment and unhappiness. The conversation came to an end when two fire engines drove past and the appellant said “that’s my cue to leave”. He saw the appellant head towards the carpark of the lacrosse club.
As to the timing of his conversation with the appellant, Mr Smith estimated that it commenced at possibly 2.45 pm to 3.00 pm, during daylight and while the senior league match was underway and before the final scores were presented. On Mr Smith’s evidence, the conversation would have concluded before 5.33 pm (being the time of sunset on 30 July 2016).
During cross-examination, Mr Smith acknowledged that he had not mentioned the aspect of his conversation with the appellant that related to setting fire to a house remotely when he gave a statement to the police on the night of the fire. He said that he did not know at the time what the police were investigating, and at that stage had not made any connection between the appellant and the fire to which he now knew the fire engines he had heard were headed. While he had mentioned to the police the appellant’s statement to the effect that the fire engines were his “cue to leave”, he had not otherwise regarded the conversation as unusual given his intoxicated state. It was only after he had heard about the involvement of Mr Haines in coming across the fire that his memory had been jogged in this respect.
The appellant’s ‘selfie’ photograph
When the police later examined a mobile phone which was in the appellant’s possession at the time of his arrest, they discovered a single image of the appellant, in the nature of a ‘selfie’ photograph, taken at the lacrosse club at 8.26 pm. It showed the appellant holding a mixed drink, with lacrosse club signage in the background.
The fire
As mentioned, Mr Haines, Mr Johnston and their families came across the fire in the townhouse on their way home from the lacrosse club. It was Mr Johnson’s daughter who first spotted it, and pointed it out to the others. The fire was sufficiently underway for flames to be visible through the front window of the townhouse.
Mr Johnston, who was driving, parked the car outside the townhouse. He and Mr Haines headed towards the townhouse, while Mr Johnston’s wife telephoned emergency services. Her phone call was made at 8.25 pm.
Mr Haines gained entry by forcing the front door. He did not find anyone inside the townhouse. The fire was in the front room. In particular, the mattress leaning against the window in that room, and some of the things around it, were on fire. Mr Johnston attempted to put the fire out with a fire extinguisher from his car, but was unsuccessful. He detected a “chemical smell” in the room; he described it as a “keroseny sort of smell” that he associated with lighting a fire.
The first fire engine arrived at 8.33 pm. A second fire engine arrived two minutes later.
The scene of the fire was forensically examined by Sergeant Wynne, a police crime scene examiner trained in fire cause investigation. He concluded that the fire had been commenced by a deliberate act, ruling out accidental ignition sources. He determined that the fire had started in the front lounge room of the townhouse, in the area of a double recliner couch positioned in the vicinity of the front window. The area also contained the remnants of a mattress.
Sergeant Wynne found no obvious indication of the use of any accelerant; at the time of his examination he detected no odour of accelerant and a sample taken from the area of the fire revealed no ignitable liquid residue or accelerant. However, he explained that the absence of any evidence of accelerant did not exclude the use of accelerant, as it may have been consumed by the fire.
Sergeant Wynne did not proffer any opinion as to the particular mechanism by which the fire was started. He accepted that it could have been as simple as a lighter and some papers on top of the mattress.
The arrest of the appellant at the fire

Officers Usher and Cliff, who had attended the townhouse earlier in the afternoon, were also tasked to the fire. They arrived at about 8.30pm.
At approximately 10.15pm, the appellant returned to the townhouse on his bike. Upon ascertaining his identity, another police officer, Detective Butler, arrested the appellant for arson. The appellant was upset and agitated about the fact of his arrest. He claimed that he had been at the lacrosse club, and said that he had been set up by his wife.
As part of the process of arrest, the appellant was handcuffed with his hands to the front of his body. Paper bags were placed over his hands to preserve any evidence that might have been obtained from his hands. The appellant was not told what type of testing might be conducted on his hands. He was seated in the rear of a police vehicle.
While standing alongside the police vehicle, Detective Butler saw the appellant remove the unsecured paper bags from his hands, and then manoeuvre his handcuffed hands from the front of his body to a position behind his back by placing one leg, followed by the other, through the arc created by his cuffed hands. Detective Butler instructed the appellant to stop, as he was concerned that the appellant’s hands were up against the seat and that any evidence on them might be lost. He removed the appellant from the police vehicle, and the appellant ended up in a seated position on the road, with his hands behind his back. Detective Butler observed that as soon as the appellant sat down, he arched his back and began to rub the palms of his hands on the wet road surface. After seeing the appellant rub his hands once in this way, he and another police officer picked the appellant up, and put fresh paper bags on his hands.
Swabs subsequently taken from the appellant’s hands revealed no evidence of ignitable liquid residue or accelerant. Nor was any ignitable liquid or accelerant found in the appellant’s tent in the caravan park where he was staying.
At the time of his arrest, the appellant was in possession of a cigarette lighter, tobacco and cigarette papers.
The appellant’s evidence at trial
In his evidence, the appellant denied lighting the fire at the townhouse. He said he was at the lacrosse club throughout the evening, and denied leaving and returning to the lacrosse club at any point.
The appellant agreed that he and Ms Delarama had separated on 6 July 2016, but said that he had been hoping for a reconciliation. He recalled Ms Delarama arriving at the townhouse with police during the afternoon of 30 July 2016. He had not been expecting her to arrive, as his arrangement with her was that he would be taking apart furniture that day, and that she would come and collect things the following day.
While he recalled speaking with the police on the afternoon of 30 July 2016, he could not recall saying the words attributed to him about burning the place down. However, he accepted that he probably did say this because he was upset and frustrated. His evidence in this respect was as follows:
A.I don’t remember saying this but I probably did. I was pretty upset at the time obviously and it – yeah, some of it I don’t remember, but I must have said it, they said I said it.
Q.    So you don’t dispute what the police say.
A.    No, not at all.
Q.    You don’t remember it though.
A.    Yep.
Q.    Were you expressing an intention to the police –
A.    No.
Q.      – if you said it.
A.It was just frustration, I was pretty upset when she started taking the fridge and washing machines, she wasn’t just taking the beds.
Q.    Why.
A.I’d hoped she’d go back there and we’d still be together, that is sort of she was leaving for good then when she took that stuff.
The appellant agreed that by the time the whitegoods were taken out, he realised that the relationship was over. During cross-examination he agreed that he was also upset that Ms Delarama was taking furniture and belongings that he believed they owned together, and was leaving him with nothing.
The appellant said that he left after speaking with the police, and went back to the caravan park. He spoke with his psychiatrist for half an hour to an hour. He had dinner between about 6.00 pm and 6.30 pm, and then sat around for half an hour or so feeling sorry for himself. He knew there was a function at the lacrosse club, and so decided to go over there. While none of his children were playing lacrosse that day, each of them had played lacrosse at the club, and his oldest daughter was in her third year as a player at the club. He used to take his children to games at the club, but had not previously stayed for the evening functions that occurred after the games.
The appellant thought he stayed at the lacrosse club for about two or three hours. He recalled buying one drink for cash, and two using EFTPOS through his mobile phone. He recalled speaking with Mr Smith. He said that he might have initially spoken to him at the bar, but that they mainly spoke outside at the fire pit. Mr Smith poured him two beers from the keg that was outside, and he recalled pouring himself one as well.
As for the content of his conversation with Mr Smith, the appellant denied that they spoke about “burning down houses and stuff like that”. He said that it “would have just been general chitchat about the kids, lacrosse club, normal stuff you talk about with lacrosse people.” He did not think he would have said that he and his wife were estranged, because he had not accepted that fact by that time.
The appellant was cross-examined about Mr Smith’s evidence to the effect that he said that the fire engines were his “cue to leave”:
Q.Did you mention to him when some fire trucks went past that that was your cue to leave.
A.That probably broke the conversation that I was having with him. Yes, I probably did because I had to go home because I had to start work again at 6 o’ clock.
Q.So you accept, do you, that you may well have said to Mr Smith as some fire trucks went past “That’s my cue to leave” and left.
A.It was only one fire truck. I would have left because there was a break in the conversation.
Q.    Was it dark when the fire truck went past.
A.    Yes.
Q.    Then you went to leave at that point, did you.
A.    Yes, that’s right not long after that.
Q.    How long after that, do you think.
A.    I’m not entirely sure, to tell you the truth.
Q.    An hour, five minutes, 10 minutes; can you assist at all.
A.    No, not at all.
Q.So you say, do you, that you see a fire truck go past, you accept you may well have said to Mr Smith “That’s my cue to leave”.
A.    Yes, I definitely would have said something along those lines.
Q.    What do you mean by saying that.
A.“I have to go now”, because I go to work early in the morning. I get up at 5 o’ clock to get to work at 6.
Q.Why would a fire truck be your cue to leave.
A.I would use it as a reference, not the intention of anything by it.
Q.You can’t say whether you left five minutes after the fire truck or an hour.
A.No.
Q.If you wanted to get home early to bed so you could go to work, wouldn’t you have left straight after you said that.
A.No, not necessarily.
Q.Do you suggest you said “That’s my cue to leave” but hung around for one or two hours.
A.I am suggesting I said that half an hour after the truck went past, not exactly as it goes past.
Q.A fire truck goes past, half an hour passes, no fire trucks and you say “That’s my cue to leave”.
A.I can’t remember saying it. Could have been five minutes, it could have been an hour.
Q.You arrived at the scene of the house fire after 10 o’clock, didn’t you.
A.    Yes.
Q.You’ve heard some evidence or there has been some agreed facts that the first fire truck went past at about 8.33, I think it was, and another one at 8.35 in the evening.
A.    If that what the facts say, then that’s what the facts say; yes.
The appellant said that he left the lacrosse club through the carpark. He said that when he left the lacrosse club and was crossing the road to head home, he looked down and saw a fire engine and police cars with their lights on, and “so being nosey I thought I’d go down and have a look and see what they were doing.”
He had his bike with him, and as he rode to within about 200 to 300 metres, he realised that the fire engine and police were at his townhouse. When he arrived at the townhouse he went up to the police to see what was going on, and they arrested him without listening to him. He told them that he had been set up by his wife, and that he had been at the lacrosse club.
In relation to his manoeuvre with the handcuffs, the appellant said that he was “really just trying to get out of the handcuffs … I wasn’t supposed to be in them.” He agreed that he was in an agitated state, and “was pretty much a dickhead looking back on it.” He denied that he was trying to wipe his hands. He said that he did not even think about something like that, let alone do it; that he did not even know why the bags were on his hands.
In relation to the ‘selfie’ on his mobile phone, the appellant said that he took it to send to his children because he was at the lacrosse club where they played. He later said that he probably sent it to his daughter who was 14 at the time. He agreed that he tried to capture not only himself, but also the signage from the lacrosse club; he wanted it to be clear that he was at the lacrosse club.
As for the lighter found in his pocket, the appellant said that he was a regular smoker at the time.
Ms Delarama and her earlier attendance at the townhouse
The appellant gave evidence that he first met Ms Delarama when she was 15 years of age. She was homeless and had come to live with his mother. According the accused, Ms Delarama had said to him that she was homeless because she had tried to burn her parents’ house down; that she had started a fire under the house, and poured petrol on it.
The appellant also gave evidence of an incident that he said occurred about a week prior to 30 July 2016. He was living at the caravan park, but called through the townhouse early in the morning on his way to work. He found a wheelie bin in the lounge room, with a small tealight, or tea candle, alight inside the bin. He said that Ms Delarama had been using methamphetamines at the time of their break-up, and so he assumed she had been at the townhouse using drugs or perhaps cleaning up. As the electricity to the house had been cut off, he assumed she must have been using the candle for lighting. He rang Ms Delarama, but she denied even having been to the townhouse.
The appellant denied that he had been the one to leave a candle in a bin in the front room of the townhouse, or ever being confronted by Ms Delarama with an allegation to this effect.
The appellant’s mother, Mrs Peter, gave evidence in the defence case. She said that Ms Delarama had been a school friend of her daughter and had come to live with them because she had been kicked out of her home and was homeless. Mrs Peter said that some time later Ms Delarama told her that she had been kicked out of her home because she tried to start a fire underneath their home with the lawnmower petrol from the back shed; and that she had done so because she was angry with her mother.
Ms Delarama denied ever setting fire to her parents’ home, or ever saying that this was the reason she was homeless.
Ms Delarama acknowledged that at the time of the breakdown of their relationship, she had been a methamphetamine user and had been experiencing apparently related mental health issues. However, she denied ever leaving a candle in a bin in the front lounge of the house. To the contrary, she that while she had visited the townhouse once between 6 July and 30 July 2016, she did so with one of her daughters, and they found a candle alight and on a plate in a wheelie bin in the front lounge room. The candle was bigger than a tea candle, and indeed was one of three candles that she and the appellant had to commemorate the death of their second child. Ms Delarama denied finding two additional candles on a table next to the bin. However, there was evidence that Ms Delarama had said in a previous police statement not only that she attended on this occasion with her son rather than daughter, but also that she found two additional candles on a table next to the bin.
Ms Delarama denied going back to the townhouse on 30 July 2016 after she had been there with the police. She denied having started the fire.
The appeal
As mentioned, the appellant’s sole ground of appeal is that the verdict of guilty was unreasonable and could not be supported having regard to the evidence. In particular, the appellant contends that no reasonable jury could have rejected his alibi (that he was at the lacrosse club at the time the fire was lit) as a reasonable possibility.
There is no dispute as to the principles applicable in considering this ground of appeal. The task of this Court is as stated by the High Court in M v The Queen.[1] The question is one of fact which the Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand. The Court must ask itself whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[2]
[1] M v The Queen (1994) 181 CLR 487 at 492-495, as applied, for example, in Libke v The Queen (2007) 230 CLR 559, at [113] and The Queen v Nguyen (2010) 242 CLR 491 at [33].
[2] Libke v The Queen (2007) 230 CLR 559 at [113].
The plurality in M v The Queen added:[3]
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[3] M v The Queen (1994) 181 CLR 487 at 493-495 (citations omitted).
Consideration
The prosecution case at trial was a circumstantial one. Its case was that it had established the guilt of the accused beyond reasonable doubt through a combination of inferences arising from various pieces of circumstantial evidence. In the prosecutor’s closing address, and the trial judge’s summing up, the circumstantial evidence was grouped under the following six topics:
·    Opportunity by reason of the appellant’s physical proximity to the scene of the fire.
·    Means by reason of the appellant’s possession of a cigarette lighter being a means to have ignited the fire.
·    Motive by reason of the breakdown of the appellant’s relationship.
·    Comments made by the appellant on the day of the fire indicating an interest in, or preoccupation with, fire – being his comments to the police officers during the afternoon, and to Mr Smith during the evening while at the lacrosse club.
·    Conduct of the appellant in attempting to create the impression of an alibi in the form of the ‘selfie’ taken with his mobile phone camera.
·    Conduct of the appellant upon his arrest indicating an effort to expunge material from the surface of his hands.
The issue on this appeal is whether the above evidence, taken in combination, was sufficient to establish the guilt of the appellant beyond reasonable doubt, and in particular to eliminate as a reasonable possibility that he was at the lacrosse club at the time the fire was lit.
In analysing this issue, it is convenient to commence by considering the evidence in support of the appellant’s alibi, before then turning to consider the circumstantial evidence in support of the prosecution case.
The evidence in support of the appellant’s alibi
The appellant gave evidence that he was at the lacrosse club throughout the relevant period; that he did not leave the lacrosse club until some time after the fire engines on their way to the fire had travelled past the lacrosse club. While the jury was required, of course, to take into account this evidence, it fell to be assessed in light of the evidence as a whole.
In addition to his own evidence, the appellant relied upon the objective evidence placing him at the lacrosse club shortly before and after the fire was likely lit; and the evidence of Mr Moore and Mr Smith as to their sightings of the appellant at the lacrosse club.
Based upon the timing of the phone call to emergency services by Mr Johnston’s wife (8.25 pm), and the state of the fire when Mr Johnston and Mr Haines entered the townhouse, it was likely to have been lit some time shortly prior to 8.25 pm. However, there was uncontested evidence that the appellant was at the lacrosse club at both 7.49 pm and 8.08 pm (in the form of EFTPOS receipts for drinks purchased by the appellant from Mr Moore at the bar in the clubrooms) and 8.26 pm (in the form of the ‘selfie’ taken by the accused in the clubrooms). The appellant contended that this left only a short period of time (namely the 18 minute window of time between 8.08 pm and 8.26 pm) for him to have committed the offence. Given that he had just purchased a drink at 8.08 pm, this left the appellant very little time to somehow deal with that drink (by either placing it somewhere or taking it with him), make his way to the townhouse, light the fire and then make his way back to the lacrosse club in time for the 8.26 pm ‘selfie’ in which he was holding the drink. In addition to this short period of time, the appellant points to the absence of any evidence of anyone seeing him leaving or returning to the lacrosse club, or making his way along Military Road to or from the townhouse. He points to the evidence of Mr Haines and Mr Johnston that they did not see him when they attended the fire.
However, as the respondent contended, this evidence did not go as far as eliminating an opportunity for the appellant to have lit the fire. He had his bike with him, and the evidence was that it would have taken only three minutes to travel the distance from the lacrosse club to the townhouse if travelling at 17 kph. He may well have ridden more quickly than this. Further, given the evidence to the effect that a mattress was already in the lounge room up against the front window, it would not have taken long to start a fire in that location. The evidence of Sergeant Wynne was that it could have been started with as little as a lighter and a few sheets of paper on top of the mattress. The appellant had a lighter on him that evening.

While accepting that this evidence left him a (limited) opportunity to have lit the fire, the appellant also emphasised the evidence of Mr Moore and Mr Smith.
Mr Moore’s evidence was that he not only sold the appellant the drinks that he purchased at 7.49 pm and 8.08 pm, but also that he saw the appellant talking to Mr Smith in the area near the bar when he purchased these drinks. When asked when he last saw the appellant, Mr Moore said that it was “probably within 20 minutes” of the purchase of his second drink. The appellant relied upon this as evidence to the effect that he remained talking with Mr Smith in the area of the bar for about 20 minutes after 8.08 pm, which covered the period of time when – on the prosecution case – he was said to have lit the fire.
However, properly analysed, Mr Moore’s evidence did not go quite that far. His evidence that he last saw the appellant “probably within 20 minutes” of the purchase of his drink was based upon his view that the average person takes up to 20 minutes to finish a drink. The jury were entitled to view Mr Moore’s evidence as based not upon any actual or precise recollection of his observations of the appellant following the purchase of the drink at 8.08 pm, but rather an assumption or reconstruction based upon how long it would take to consume a drink.
The jury was also entitled to take into account in assessing the significance of Mr Moore’s evidence that he was very busy that evening with a constant stream of customers, and that he acknowledged that even during the period he saw the appellant and Mr Smith speaking one or other of them might have gone to the toilet or something like that occasionally. In assessing the significance of Mr Moore’s evidence, the jury was also entitled to take into account that while Mr Moore said he saw the appellant and Mr Smith conversing near the bar area, both the appellant and Mr Smith said that, other than perhaps their initial meeting, their conversation occurred outside near the fire pit. Mr Moore said that he would not have been able to see them out by the fire pit through all the people in the clubrooms.
Mr Smith’s evidence was that he was speaking with the appellant for about 45 to 50 minutes up to the time when the fire engines went past the lacrosse clubs. As the fire engines arrived at the townhouse at 8.33 pm and 8.35 pm, this suggests that they were speaking throughout the period when the fire was lit.
However, in considering what weight and significance to attach to Mr Smith’s evidence, there were various matters the jury were entitled to take into account. The first was that even on Mr Smith’s own evidence, he allowed for gaps in the time they were together when one or other of them went to the toilet or to purchase another drink. Further, given Mr Smith’s intoxicated state, it would be open to the jury to not attach much weight to his perception of time. The evidence suggests that Mr Smith was confused about the timing of the conversation in the sense that he placed it during the afternoon, and certainly before sunset. It was open to the jury to accept Mr Smith’s evidence that he and the appellant had a relatively lengthy conversation that evening which concluded when the fire engines went past, but in light of the totality of the evidence to nevertheless accept that the appellant had an opportunity to leave the lacrosse club for a long enough period of time to light the fire.
In summary, while there was some evidence that supported an alibi on the part of the appellant, the strength of that evidence was a matter for the jury. It was a matter for the jury to determine whether they believed the evidence of the appellant, and the weight and significance they were prepared to attach to the evidence of Mr Moore and Mr Smith. On a proper analysis, neither Mr Moore nor Mr Smith had the appellant under constant supervision during the relevant period. Their evidence was both inherently, and in its terms, relatively general as the appellant’s whereabouts at the critical time. Further, in considering these matters, the jury was entitled to take into account the items of circumstantial evidence relied upon by the prosecution. It is to this evidence that I now turn.
The circumstantial evidence relied upon by the prosecution
While the strands of circumstantial evidence relied upon by the prosecution fell to be considered by reference to their cumulative significance, it is convenient to commence by addressing them each individually.
Opportunity and means
The evidence in relation to the opportunity that the appellant had to start the fire, and the means that he had of doing so, has already been outlined. While the timing would have been relatively tight, it was open to the jury to be satisfied that the appellant had the opportunity and means to start the fire.
Motive
The events that occurred on the afternoon of 30 July 2016, in the context of the breakdown of the appellant’s relationship with Ms Delarama more generally, provided a motive – or at least a potential emotional trigger – for the appellant to have decided to set fire to the townhouse. The appellant and Ms Delarama had been in a long-term relationship. They had only broken up a few weeks earlier. He hoped they would reconcile, and thought it was possible that they might do so. However, on the appellant’s own evidence, when he saw Ms Delarama removing furniture from the townhouse, he realised that she was leaving for good. Although he left the townhouse when asked by the police to do so, he returned earlier than requested and in an agitated state. On the evidence of the police officers he expressed his dismay that Ms Delarama was being permitted to remove what he regarded as jointly-owned furniture.
Further, if Mr Smith’s account of their conversation later that evening was accepted by the jury, then this was some further evidence that the breakdown in his relationship was playing on his mind, and affecting his emotional state.
The jury would also have been entitled to take into account the effect of the alcohol that the appellant was drinking that afternoon and evening, and the impact that this might have had upon his emotions and decision-making.
Comments in relation to fire
On the prosecution case, the appellant made comments indicating that the appellant had an interest in, if not preoccupation with, lighting a fire on 30 July 2016. At the very least, it was something that was on his mind.
Turning first to the comments made to Officers Usher and Cliff, the appellant did not contest their evidence that, upon his return to the townhouse during the afternoon, and after expressing his dismay that Ms Delarama was being permitted to remove what he regarded as jointly-owned furniture, he said words to the effect that he may as well burn the place down. He sought merely to diminish the significance of his words by characterising them as mere “sounding off”; an expression of his frustration and upset following the breakdown of his relationship, and in particular his realisation upon seeing Ms Delarama taking furniture from their townhouse that it was over for good. He denied that his words were an expression of any intention on his part.
However, given that the townhouse did catch fire later that same day, the jury was entitled to attach significant weight to this evidence. It would have been a quite extraordinary coincidence for the townhouse to be the subject of a deliberately lit fire on the very day that the appellant expressly spoke of doing so without any involvement on his part.[4]
[4] Particularly given that Ms Delarama was not present when he made this statement (see below).
The same can be said of the evidence from Mr Smith as to his conversation with the appellant about setting a house on fire, including the need to ensure you have an alibi. There was a threshold issue as to the reliability of this evidence. Not only was Mr Smith intoxicated at the time of the conversation, but he did not initially inform police of this aspect of his conversation with the appellant. There was a risk that this aspect of Mr Smith’s evidence may have been influenced by subsequent conversations with people about the events of that evening, or have otherwise been the result of reconstruction or confabulation on his part. Certainly there were some aspects of Mr Smith’s account of his conversation with the appellant that were unreliable (namely, that the conversation occurred during the afternoon, and that the fire engines passed and the conversation finished whilst it was still light). Against this, there were aspects of Mr Smith’s evidence as to the content of the conversation that were accurate (such as that the appellant’s daughters were lacrosse players, that his relationship had recently broken down, and that the appellant said it was his cue to leave when the fire engines passed).
Whether in fact Mr Smith and the appellant discussed lighting a fire when they were speaking that evening was ultimately a matter for the jury. However, it was open to the jury to accept Mr Smith’s evidence in this regard. And if they did, then the jury was again entitled to attach significant weight to this evidence.
Related to the above was Mr Smith’s evidence that the appellant’s departure from the lacrosse club coincided with the fire engines passing by, and the appellant saying that this was his “cue to leave”. The appellant accepted that he said something along these lines, and to that extent provided some limited support for the reliability of Mr Smith’s memory of their conversation. He sought to explain this evidence,[5] saying that he decided to leave when he heard the sirens merely because there was a break in the conversation and he needed to get up early to go to work the next day. However, he then equivocated about how long after the fire engines he left the lacrosse club; and the evidence was that he did not arrive at the townhouse until around 10.15 pm, despite the appellant’s evidence that he saw the fire engines and police as he was leaving the lacrosse club and so went to have a look.
[5] In the passage of transcript extracted earlier in these reasons.
Again, what to make of this evidence was a matter for the jury. The jury was entitled to accept that the appellant made the statement attributed to him by Mr Smith as the fire engines went past, and to treat this as potentially connecting the appellant with the fire in some way. The jury was also entitled to take into account the apparent lack of explanation for the appellant’s whereabouts for the period of over one and a half hours between the fire engines passing and his arrival at the townhouse.
The ‘selfie’ photograph
The ‘selfie’ of the appellant taken at 8.26 pm on 30 July 2016 at the lacrosse club was located on his phone by the police. The only person in the photograph was the appellant. He was not obviously smiling, and was prominently holding a drink. Relying primarily upon the obvious signage of the lacrosse club in the photograph, the prosecution case was that the photograph was an attempt by the appellant to create an alibi for himself.
On the other hand, the appellant gave an innocent explanation for the photograph, namely that he took it with a view to sending it to one of his daughters to show that he was at her lacrosse club. In refuting the suggestion the photograph was an attempt to create an alibi, the appellant emphasised his failure to deploy the photograph at the time of his arrest. The prosecution response to this last submission was that the appellant may have appreciated how obvious or transparent this would have been, and hence that it may simply have fuelled rather than quelled the police suspicion of his involvement.
Both of these competing explanations were put before the jury, and it was a matter for the jury to assess the significance of the ‘selfie’ as an aspect of their consideration of the totality of the circumstantial evidence. However, in the context of the evidence as a whole, it was open to the jury to consider that the image was more consistent with a staged image designed to assist in establishing an alibi than a genuine ‘selfie’ taken for the reason given by the appellant.
The appellant’s post-arrest conduct
I have earlier set out the evidence in relation to the appellant’s actions upon arrest when his hands were cuffed and bagged. It was undoubtedly unusual behaviour, and attracted the attention of Detective Butler. Again, there were competing explanations that were laid out before the jury.
On the prosecution case, it was evidence probative of a concern by the appellant that his hands might contain some evidence linking him to the fire in some way, and an attempt to remove or destroy any such evidence that might have been revealed by the testing of his hands. In this respect, the prosecution emphasised the relatively extreme and deliberate movements required to move from a position of being handcuffed at the front to handcuffed at the rear, and the resulting ability to wipe his hands against the car seat without being seen once his hands were behind him. The prosecution also emphasised the appellant’s conduct in persisting in an apparent endeavour to wipe his hands on the bitumen even after he had been told to stop and had been removed from the police vehicle.
On the defence case, the appellant’s actions were merely an attempt by him to remove the handcuffs, and him behaving like a “dickhead” because he did not think he should have been under arrest. He said that he did not even know why the bags had been put on his hands, and pointed out that if he had wanted to wipe his hands he could easily have done so while his hands were cuffed in front of him – for example, by wiping his hands on his trousers.
Again, it was for the jury to consider these competing explanations, and the evidence in support of each. But it was open to the jury, in the light of the evidence as a whole, to characterise this evidence in the manner contended for by the prosecution.
I observe in passing that to characterise this post-offence conduct in the manner contended for by the prosecution involved a form of what is sometimes referred to as ‘consciousness of guilt’ reasoning, or a form of implied admission. However, it does not follow that any special direction or warning was required about the use to be made of the evidence, or otherwise singling this evidence out from the other circumstantial evidence in the case. As this Court made plain in R v Wildy,[6] such a warning may not be necessary, and indeed may be problematic, in circumstances, such as the present, where the prosecution merely presented the evidence as an item of circumstantial evidence which was more consistent with the actions of a guilty man than that of an innocent one; and where the evidence was easily understood, did not contain any of the hidden dangers that might sometimes be associated with other post-offence conduct (such as lies), was not inherently discreditable and was not part of a prosecution case that was wholly or substantially reliant upon post-offence conduct. In any event, any such direction or warning was expressly eschewed by the parties below, and no complaint has been made upon appeal as to the absence of such direction or warning.
[6] R v Wildy (2011) 111 SASR 189 at [33]-[37]; see also Dodd v Western Australia [2014] WASCA 13 at [104], [119]-[140].
Similar observations might be made in relation to the evidence relating to the ‘selfie’ photograph, and the appellant’s statement that the fire engines were his “cue to leave”.
Conclusion
The evidence established that the fire in the townhouse in which the appellant had lived with Ms Delarama prior to the recent breakdown of their relationship was deliberately lit.
It also established that just a handful of hours prior to the fire being lit, the appellant had spoken of burning it down. He did so in the presence of two police officers, and after he had seen Ms Delarama removing property from the townhouse and the reality of the breakdown of his 16 year relationship with the mother of his children had dawned upon him.
Further, there was evidence to the effect that after this, but prior to the first fire engine arriving on the scene, the appellant also spoke to Mr Smith at the lacrosse club about setting a house on fire. It was open to the jury to accept this evidence, and hence that the idea of lighting a fire continued to occupy the appellant’s mind, including as he consumed alcohol.
The appellant was close to the scene of the fire during the evening of 30 July 2016. He had a bike to transport him to the townhouse, access to the townhouse, and a cigarette lighter with which to light the fire. No significant preparatory movement of furniture or ignitable items was required. The fire could have been lit quickly.
It was open to the jury to conclude that the evidence as to the fact and timing of the appellant’s presence at the lacrosse club allowed for his absence for a period of time sufficient to light the fire.
In considering the circumstantial case against the appellant as a whole, the jury was entitled to regard the appellant’s conduct in taking the ‘selfie’ at 8.26 pm, and in manoeuvring his hands following his arrest, as conduct designed to distance himself from the offence.
The jury was entitled to reject as so remote or fanciful as to be unreasonable the possibility that Ms Delarama or an unidentified third party lit the fire, particularly given the coincidence in timing with the appellant’s statements earlier in the day. In particular, while there were some potential difficulties with the reliability of aspects of Ms Delarama’s evidence, the jury was entitled to consider that the notion of Ms Delarama having ‘set up’ the appellant was fanciful given that she was not present when the appellant made those statements to police, and did not have any further contact with the police until after the fire had been discovered.
In summary, there was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.
For these reasons, I would dismiss the appeal.