R v Andrews - [2022] NSWDC 743

District Court

New South Wales

Medium Neutral Citation: R v Andrews [2022] NSWDC 743
Hearing dates: 4 – 7 October 2022, 10 – 11 October 2022, 13 - 17 October 2022
Decision date: 27 October 2022
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant is found to have committed the offences charged in all 5 counts on the indictment

Catchwords:
CRIME – Principal judgment - Intentionally cause fire and be reckless as to its spread – Judge alone trial - Special hearing pursuant to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Circumstantial Crown case

Legislation Cited:
Crimes Act 1900 (NSW), ss 4A, 203E, 203D
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 97
Rural Fires Act 1997 (NSW), s 100(1)(a)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 54

Cases Cited:
De Silva v The Queen [2019] HCA 48
Elomar v The Queen (2014) 316 ALR 206
Liberato v The Queen (1995) 159 CLR 507
R v Baden-Clay (2016) 258 CLR 308
R v Kinsela [2003] NSWCCA 92
Shepherd v The Queen (1990) 170 CLR 573
Townsend v The King [2022] VSCA 201
Wiggins v R [2020] NSWCCA 256

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Shane Andrews (Defendant)
Representation: Counsel:
Ms C Dobraszczyk (Crown)
Mr B Pierce (Defendant)

File Number(s): 2020/00304121
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the assumed identity of the undercover operative, or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness.

JUDGMENT

For those who lived in New South Wales and south-eastern Australia in 2019/2020, the so called “Black Summer” will be remembered as one as the worst for bushfires in the history of the state. This case concerns allegations that the defendant, Shane Andrews, intentionally lit five fires on 3 December 2019 at Castlereagh and Clarendon in Western Sydney. He stands indicted with five counts of intentionally cause fire and being reckless as to its spread on public land, contrary to s 203E of the Crimes Act 1900 (NSW) (‘Crimes Act’).
As an alternative to each of those charges, the Crown says that if the defendant is found not guilty of any of those counts, he should be convicted of offences under s 100(1)(a) of the Rural Fires Act 1997 (NSW) (‘Rural Fires Act’): see s 203E(4) of the Crimes Act.
On 20 October 2021, the defendant was found unfit to plead by Herbert DCJ by reason of a cognitive impairment. Her Honour found that the defendant’s cognitive impairment was permanent and that he would not become fit to plead within 12 months.
The DPP advised that further proceedings would be undertaken against the defendant, pursuant to s 54 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the Act’). The trial of the defendant before me was therefore a special hearing conducted without a jury pursuant to s 56(9) of that Act.

Judge alone trial and the nature of a special hearing

A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. The fact that the defendant has been found unfit to plead for an offence is presumed not to be an impediment to the person’s representation and he was represented by Mr B Pierce of Counsel.
A special hearing must not prejudice the defendant any more than his unfitness may already do. He must have legal representation. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include:

To ensure that justice is done as best as it can be in the circumstances to the defendant and to the prosecution, and

To give the defendant an opportunity of being found not guilty and, if he requires further treatment, such treatment may be given to him outside the criminal justice system.

At the commencement of the special hearing, the five counts on the indictment were read to the defendant but he was not asked to enter a plea by reason of the finding he was unfit to plead. At a special hearing, the defendant is taken to have entered a plea of not guilty to the charges against him, unlike in a normal trial in which the defendant may enter a plea of either guilty or not guilty.
Section 59(1) of the Act provides that the verdicts available at a special hearing include:

(a) not guilty of the offence charged,
(b) a special verdict of act proven but not criminally responsible,
(c) that on the limited evidence available, the defendant committed the offence charged,
(d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.

In the present context, counsel for the defendant has indicated that the available defence under s 28 of the Act is not relied upon. That defence, if relied upon and found to be proven on the balance of probabilities, would give rise to a verdict in s 59(1)(b). Thus, in this case, the available verdicts include those in s 59(1)(a),(c) or (d) of the Act.
If the defendant is found not guilty in the special hearing, he is to be dealt with as if he had been found not guilty of the offence at an ordinary trial in criminal proceedings. That is, he is entitled to an acquittal on the charges.
Section 52 of the Act provides that a verdict on the limited evidence available that the defendant committed the offence charged, or an alternative to the offence charged:

(a) constitutes a qualified finding of guilt but does not operate as a conviction for the offence, and
(b) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and
(c) is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation.

A finding that on the limited evidence available the defendant committed any of the offences for which he is charged, or an alternative offence to the offence charged, would require me to determine whether, had the matter been an ordinary trial, I would have imposed a sentence of imprisonment. I am then required to nominate a limiting term, that being the best estimate of the sentence I would have imposed on the defendant if it had been an ordinary trial.
The defendant would then be referred to the Mental Health Review Tribunal (‘MHRT’) who would be responsible for his management as a forensic patient. The purpose of the limiting term is to ensure that the defendant is not detained in custody longer than would have been the case had he actually been found guilty of the offence or offences.

Elements of the Offences

The five counts in the indictment allege that the defendant committed an offence contrary to s 203E of the Crimes Act. That section provides:

s 203E Offence
A person-
who intentionally causes a fire, and
who is reckless as to the spread of the fire to vegetation on any public land or on land belonging to another,
is guilty of an offence.

To prove these offences, the Crown must prove beyond reasonable doubt that

The defendant;

Intentionally caused the fire; and

Was reckless as to the spread of the fire to vegetation on any public land or land belonging to another.

There was some debate during the hearing as to whether it was an element of the offences as particularised on the indictment that having been intentionally caused, the fires spread to ‘public land’. If, as each party submitted, this was an element of the offences, then the offences would not capture fire intentionally caused where the accused was reckless as to its spread to ‘land belonging to another’ as set out in the legislation which was not ‘public land’.
I do not think this is an element of the offence. The elements are the intentionally causing of a fire and being reckless as to its spread (to vegetation on any public land or any land belonging to another). As such, the origin point of the fire, save and except for relevance (if any) to their cause, is not important.
Pursuant to s 4A of the Crimes Act, where an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. The definitions relevant to the offence are otherwise set out in s 203D of the Crimes Act:

s 203D Definitions
causing a fire includes -
lighting a fire, or
maintaining a fire, or
failing to contain a fire, except where the fire was lit by another person or the fire is beyond the control of the person who lit the fire.
spread of a fire means spread of a fire beyond the capacity of the person who causes the fire to extinguish it.

Pursuant to s 203E(4) of the Crimes Act, the defendant may, in the alternative to an offence pursuant to s 203E, be found guilty of an offence pursuant to s 100(1) of the Rural Fires Act. To prove this offence, the Crown must prove beyond reasonable doubt that:

The defendant, without lawful authority; and

Set fire or caused fire to be set to land or property of another person, the Crown or any public authority.

The accidental starting of a fire does not constitute setting a fire within the meaning of s 100(1)(a) of the Rural Fires Act: see R v Kinsela [2003] NSWCCA 92 at [16]. Thus, there is a mens rea to the offence under that section.

General Directions

A Special Hearing

Where, as here, the defendant is tried without a jury, s 133 of the Criminal Procedure Act 1986 (NSW) (‘the CPA’) imposed obligations on the judge in reaching a verdict. That section provides:

A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

Onus

I remind myself that the prosecution must prove each element of each of the offences charged beyond reasonable doubt. There is no onus on the defendant to prove anything.
I remind myself the Crown does not have to prove every fact in the case beyond reasonable doubt, just the elements of the offences beyond reasonable doubt.
I warn myself that I must not act on suspicion or what I believe might probably be the case. I can only return a verdict of guilty to a particular count if the prosecution has proved beyond reasonable doubt each element of the offence charged. If the prosecution fails to discharge that burden on a count, then the defendant must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Multiple Counts

I direct myself that I must give separate consideration to the individual counts on the indictment and assess whether the prosecution has discharged its burden to prove each element of that count.
Giving separate consideration to individual counts means that I am entitled to bring verdicts of guilty on some counts and not guilty on other counts if there is a logical reason on the evidence of that outcome.

Right to Silence

All people in this country have a right to silence - that is, to choose not to answer questions put to them by police. That is what the arresting police told the defendant when he was asked if he wanted to answer their questions.
In this case, it would be quite wrong if Mr Andrews, having listened to what the police said, and having decided to exercise his right to silence, later found that a judge was using that fact against him. I must not do that.

Failure of Defendant to Give Evidence

The defendant has not given any evidence in response to the Crown case.
The Crown bears the onus of satisfying me beyond reasonable doubt that the defendant is guilty of the offences charged.
The defendant bears no onus of proof in respect of any fact that is in dispute. Although a defendant is entitled to call or give evidence in the criminal trial, including in a special hearing such as this, there is no obligation on him to do so. I remind myself that he is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the defendant is entitled to say nothing and make the Crown prove his guilt to the high standard required.
I direct myself, as a matter of law, that the defendant’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by myself as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the defendant decided not to give evidence.
I cannot use that fact to fill any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in the evidence if the defendant had given evidence.

Inferences

I may, in my role as judge of the facts, draw inferences from the direct evidence. There is nothing extraordinary about that. We all do that, consciously or otherwise, in our everyday lives. Inferences are conclusions of fact rationally drawn from a combination of true facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
In a criminal trial, I must be satisfied of the guilt of the defendant beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference.
In the context of a criminal trial, I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

Circumstantial Evidence

As I have said, the onus of proving the defendant’s guilt in respect of the charges which it brings against the defendant is on the Crown. It must establish his guilt beyond reasonable doubt. This means that in respect of each of the essential legal ingredients or elements of the charges, I must be satisfied beyond reasonable doubt that the Crown has established its case before I would be entitled to bring in a verdict of “guilty” to those charges.
My function as the judge of the facts in this case extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established. As I have said, “inference” and “conclusion” mean the same thing. I will use the word “conclusion” to refer to the line of reasoning that the Crown intends to prove by its circumstantial case.
In this case, the Crown relies wholly on what is called “circumstantial evidence”. In relying on circumstantial evidence, the Crown asks that I find certain basic facts and then from those facts draw a conclusion as to the existence of a further fact. Circumstantial evidence can be contrasted with direct evidence.
Direct evidence is what a witness says or what he or she saw or heard or did. It may be a witness saying that he saw or she saw a defendant person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing a defendant person committing an act that the Crown relies upon as part of its case, or it can be evidence from the witness that he or she heard a defendant person admitting to the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the defendant.
In a circumstantial case, the Crown lacks direct evidence of that kind. That does not mean that a circumstantial case is for that reason weaker than a case based on direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying a defendant as being the offender can be very unreliable because identification evidence can be honest but mistake. But in a circumstantial case no individual fact can prove the guilt of the defendant.
Where the Crown’s case depends wholly or in part on circumstantial evidence, then I must reason in a staged approach. The Crown first asks that I find certain facts established by the evidence. Not all of those facts have to be proved beyond reasonable doubt. However, in this case, some of the facts the Crown asks me to find are essential ingredients of the charges the defendant faces.
The Crown asks me to draw an inference or conclusion of guilt of the defendant that he deliberately caused each of the fires and was reckless as to their spread beyond reasonable doubt. It would not be open to me to come to a conclusion favourable to the Crown unless I was first to find as a fact that it was the defendant who lit the fires, and that the fires were intentionally caused.
Critical to finding that it was the defendant who lit the fires is a finding that it was the defendant’s car seen on the CCTV footage I will describe and by witnesses who were in the vicinity of the fires on the days they were lit. As those facts are essential to me coming to a conclusion in favour of the Crown, because the Crown must prove its case beyond reasonable doubt, then I must first have to be satisfied as to the existence of those particular facts beyond reasonable doubt. Those particular facts must be proved beyond reasonable doubt not because they alone prove the guilt of the defendant but because they are an essential step in the reasoning that the Crown asks me to follow in order to establish its case. Unless they are proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail.
As I have already said, in relation to facts which are not essential to my process of reasoning, I would not consider those facts I find established by the evidence in isolation, but I regard them as a whole.
If I was satisfied beyond reasonable doubt as to the existence of the essential facts, then I can take those facts, together with all of the other facts I find established, and ask whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asked me to find is not available then the Crown’s circumstantial case fails, but it is for me to determine what conclusion, if any, can reasonably be drawn from the established facts and then consider whether there is any other reasonable explanation for those facts other than that of the defendant’s guilt. If there is no other explanation consistent with all of the established facts considered together, then it would be open to me to find on the limited evidence available that the defendant committed the offences charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation, and it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the defendant. It is important that I approach a circumstantial case by considering and weighing as a whole all of the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the defendant, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the defendant’s guilt.

The correct approach is first to determine what facts I find established by the evidence. As I have said, any non-essential facts to be taken into account do not need to be proved beyond reasonable doubt. I then consider all of those facts, and the essential facts if I find them beyond reasonable doubt, together as a whole and ask myself whether I can conclude from those facts that the defendant is guilty of the offences charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of the guilt of the defendant beyond reasonable doubt. Of course, it follows in that circumstance I must find the defendant not guilty.
But, if I find that such a conclusion is a reasonable one to draw based upon a combination of the established facts, then before I can find the defendant guilty, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the defendant, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the defendant’s guilt.
I should understand that drawing a conclusion from one set of established facts to find another fact as proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture, or supposition.
The nature of the Crown circumstantial case is that it was the defendant’s car with the defendant driving that was observed by certain witnesses or captured by CCTV footage near the origin points of each of the fires, in some instances speeding away from the vicinity of the fires. There is evidence that the defendant admits that he was driving his car in the day and was captured by certain CCTV evidence near the scene of some of the fires, very close in time to when the fires were reported to the authorities. The defendant accepts that his car was pictured in a police flyer distributed when the police were investigating the fires in May 2020. There is also evidence that the Crown submits shows that the defendant was lying about the reason his car was shown in the flyer and why he was in the vicinity of the fires. The Crown asks me to infer that all of these matters show that the defendant deliberately caused the fires the subject of each of the counts.
In order to satisfy me beyond reasonable doubt of the defendant’s guilt of the offences, the Crown must first persuade me that the inferences or conclusions it relies upon are reasonable ones to draw from the facts that I find established by the evidence. It must then prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all of the established facts, viewed as a whole, is that the defendant is guilty of the offences charged. As I have said, if there is any other reasonable 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.

Facts

It is necessary to recite the basic facts which give rise to the five counts in the indictment. There were no agreed facts in this case. Where there is a dispute about a particular fact, I will identify that and deal with it as appropriate in these reasons. Where necessary, I will assess the evidence of the witnesses relevant to any disputed fact. I say “necessary” because it seems to me that there were some witnesses called where there was really no dispute with respect to their evidence. The prime example of this was Mr Stuart Lester. He sold the RAV4 vehicle to the defendant. Everything he said was uncontroversial and a statement could have been tendered or matters such as the sale of the car (if relevant) could have been proven by documents agreed. I accept that the defendant has a cognitive impairment which means he is in effect functionally illiterate, but simple matters such as this could have been discussed with him and instructions taken.

Evidence of Defendant’s Mobile Phone Location

There was evidence given of records of Optus by reference to records of data use or reception from various mobile phone towers in the Castlereagh Londonderry area: see Exhibit 7. Evidence was also given by Mr Raymond Chang, a senior technical specialist with Optus, as to the interpretation of the documents tendered. Effectively, those records show that a mobile device with the number assigned to the defendant interacted with, and was in the vicinity of, the respective mobile towers at the times indicated.
It was not clear whether or not a phone call was being made at the time as the records also indicated that data was being used when the mobile device interacted with that tower. Nevertheless, the records indicate some sort of interaction between the device and the tower. The Crown submits, and I accept on the evidence of Mr Chang, that this means that the device was, at the time indicated in the relevant records, within the range of the mobile tower as depicted on the map exhibited for that tower.
The various maps of the respective towers (Exhibits 8 to 11) indicate the direction of the antennae of the tower for each map is pointing. They do not indicate the precise location of the defendant’s mobile device within that map. Mr Chang said that it is likely that the device was somewhere within the area identified in the map and in the direction of the antenna (T 78.43- 49). I accept that evidence.
The Optus records recorded the mobile device and the various mobile towers in universal time but these have been corrected to Australian Eastern summertime in Exhibit 39.

CCTV Evidence

There was, before the Court, various clips of CCTV footage taken from areas of interest relevant to each of the fires the subject of the five counts in the indictment. That footage has been gathered from those locations by the Officer in Charge, Detective Senior Constable Christopher Hannon. Footage had also been provided to DSC Hannon relevant to the fires the subject of counts 4 and 5, which were in the area of the RAAF base at Richmond, by Sergeant Kris Chegwyn of the military police of the Australian Defence Force. Sergeant Chegwyn is based at RAAF Richmond. A compilation of the various CCTV footage clips was made (Exhibit 36) and a synopsis of the CCTV footage was also prepared (Exhibit 37).
The CCTV footage focuses on a small-to-medium sized maroon/red SUV, with silver or grey trims and panels, a sunroof and yellow licence plates. At certain times in the CCTV footage (and in stills taken from that footage in Exhibit 37) a car can be seen with P plates.
The defendant accepts that the still shots at pages 3-6 of Exhibit 37 are photographs of his car (see T 529.5-13). As I describe in more detail below, in response to a demand served on him pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), he admitted to police that between the hours of 2.38pm and 3.10pm on 3 December 2019 (so at the time the CCTV footage was taken in the daylight hours), he was driving the car and he was the only person driving the car that day.
There is no direct admission by the defendant that the vehicle shown in the remainder of the CCTV footage (taken in the night-time hours) as extracted in the synopsis in Exhibit 37, is his vehicle. Counsel for the defendant accepted his client’s car was in the vicinity of the fires the subject of counts 1 and 2 in the day, the evidence was strong that it was in the vicinity of the fire the subject of count 5, and “it was more inferential” in respect to counts 3 and 4 (see T 516.49).
I find that the footage of the vehicle shown in the remainder of the CCTV footage and in the Exhibit 37 synopsis at night-time (see pages 9, 11, 18, 19 and 20 of Exhibit 37 for the still shots) is the defendant’s car. This finding is based on the mobile phone tower interactions with the mobile device bearing the defendant’s number at or around the times and in the locales of the relevant CCTV footage, the similarity of the vehicle depicted where it can be seen, and the evidence of Sergeant Chegwyn.
Sergeant Chegwyn went through all the CCTV footage from the RAAF base for the relevant time in December 3, 2019 and eliminated all vehicles seen either as being owned or registered to identified persons by reference to the number plates of those vehicles captured on the footage (see his evidence at T 134.39 to 137.20). There was one vehicle that could not be identified by him and that is a maroon-grey small SUV (see page 19 of Exhibit 37). He tracked that car by reason of using Ms Howard’s car, another RAAF employee, following a car that she saw near the Percival Street fire. Sergeant Chegwyn was able to trace that vehicle, as he described at T 137.49 to 138.26, until it was caught on the CCTV footage at the roundabout heading back to Richmond on Dight Street (at page 19 of Exhibit 37). That vehicle is the defendant’s car.
I find that the vehicle in all of the CCTV footage is the defendant’s vehicle, a maroon-red Toyota RAV 4, NSW registration CT70WF with green P plates, and that at the time of the footage it was being driven by him. This finding does not of itself mean the defendant is guilty of the charges on the indictment, but it does place him in the vicinity of each of the fires very near to the times when they were first reported.
I will refer to the CCTV footage and other events below using the 24-hour clock.

Exhibit 43

The Crown tendered, without objection, a large laminated map of the Castlereagh/Londonderry/Richmond area. This map identifies each of the fires the subject of the five counts on the indictment, the various mobile phone towers which recorded interactions with the mobile device with the defendant’s number, and the location of the various CCTV cameras which recorded the footage I have described above. This map became Exhibit 43 and is a useful tool to follow the alleged path of the defendant in his car and the Crown case as to the timing of him lighting the fires.

The Fires

The Smeeton Road Fire – Count 1

The first fire reported was a fire at Smeeton Road, Castlereagh (the Smeeton Road Fire – Count 1). Chronologically, the evidence was that at 14:33:49 a maroon/silver small/medium SUV (which I find was the defendant’s car being driven by him) was recorded by CCTV footage passing 148 Tadmore Road, Castlereagh (see Exhibit 37 p 1). The OIC said this was about one kilometre from the Smeeton Road fire.
Mr Joseph Fenech and a companion were driving towards Tadmore Road in Castlereagh. He was travelling down Jolly Street towards Smeeton Road. Jolly Street turns into Smeeton Road after the intersection with Church Street. He said that before he hit that intersection (so whilst he was still on Jolly Street) a car passed him going the other way. He confirmed that when he saw the car which went past him, he was on Jolly Street, before the Church Street bend where it became Smeeton Road (see T166). He confirmed in cross-examination that he saw the car going past him in the opposite direction before it got to Fire Trail Road where it intercepted with Jolly Street. He said the car was driving pretty quickly. He did not notice anything else about the car, nor give a description of it.
After he saw the car, he noticed a fire on the edge of the road to his right-hand side. He said that when he saw it, the fire was “going higher” and was “sort of a square metre…. round” (T165). He said the fire was in the grass. His companion said that there was no way they were going to be able to put the fire out. They called 000. The records indicate that the 000 call was made by Mr Fenech at 14:34:34 hours (see Exhibit 22). This call was made 45 seconds after the defendant’s car passed 148 Tadmore Road as recorded by the CCTV footage in Exhibit 37, page 1.

The Fire Trail Road Fire – Count 2

A 000 call was made at 14:37:35 reporting a fire at Jolly Street, Castlereagh, near Sheridan Road. It is accepted that this is the first report of the fire at Fire Trail Road, Castlereagh (the Fire Trail Road Fire – Count 2). This fire was a little over one kilometre from the Smeeton Road fire.
At 14:37:32 the defendant’s car was recorded on CCTV footage travelling past Hinxman Road Castlereagh, in a westerly direction away from the Smeeton Road Fire and Fire Trail Road Fire. The location of the CCTV camera was approximately 3.6 kilometres from the Smeeton Road Fire and 3.3 kilometres from the Fire Trail Road Fire.
I note that in the blown up still photo at page 4 of Exhibit 37 (taken from the CCTV footage) a green P plate can be seen at the front of the car. It was submitted by counsel for the defendant that the colour of the P plate was not clear and that it could be red, but I reject this submission. From viewing the footage and the photo in Exhibit 37, the P plate is, I find, a green P plate.
The OIC gave evidence that he had undertaken calculations based upon him watching the CCTV footage and on having done certain measurements of the distance between two poles in Hinxman Road (shown on page 5 of Exhibit 37) that the defendant’s vehicle was travelling at 95.5 kilometres per hour (see T 308.29-35 and page 5 of Exhibit 37). I do not accept these calculations as being an accurate calculation of the vehicle’s speed. The OIC said he measured the time the vehicle took to travel between the two poles by watching the CCTV footage and using a stopwatch to start when it passed the first pole and stop when he thought it passed the second pole. However, the angle of the footage makes it difficult, if not impossible, to accurately mark when the vehicle passes the second pole so as to calculate the exact speed, as the OIC has done. I do accept that the OIC’s evidence can be accepted as an estimate and his observation of the vehicle in the CCTV footage and the measurements he made can estimate that the car was travelling quickly and above the speed limit.
The defendant’s car then is seen on CCTV footage turning left on to Sheridan Road from Hinxman Road (see page 6 on Exhibit 37).
At about 14:38 on Tuesday 3 December 2019, the New South Wales police helicopter POLAIR was on a routine patrol. Senior Constable Katrina Hetherington was one of the officers in the helicopter. They noticed smoke from an area near Smeeton Road at Castlereagh and this was the Smeeton Road Fire. They then sighted certain smoke from a second fire further north. This smoke turned out to be the fire from the Fire Trail Road Fire. From its size and the amount of smoke, she formed the view that the Fire Trail Road Fire had just started.

The Wingara Glen Fire – Count 3

At 14:50, the defendant’s mobile device was recorded interacting with the mobile phone tower at Lot 20, Studley Street, Londonderry, being item 16 on Exhibit 43. This phone tower was approximately 1 kilometre from the camera at the Caltex Londonderry service station and 3 kilometres from the fire at Wingara Glen.
At 14:56:13 to 14:56:17, the defendant’s car was recorded by CCTV footage travelling past the Caltex service station on Londonderry Road at Londonderry, travelling in a northerly direction towards Wilshire Avenue (see pages 7 to 8 of Exhibit 37). The OIC estimated that this was 12.6 kilometres from the footage of the defendant’s vehicle captured at 245 Hinxman Road.
Malcolm Kaczorowski gave evidence that on the afternoon of 3 December 2019, he was travelling from the Yarramundi reserve near Castlereagh where he had been fishing to pick up his children. He was heading towards the Northern Road. He was travelling east on Wilshire Road and he stopped near the quarry to put his fishing gear in the back of the car to make room for the kids. When he was parked on the side of the road and got out of the car to put rods in the boot, a car travelled past him in a westerly direction (that is, going the opposite direction to him). That car went past him for a couple of hundred metres, then turned around and came back and passed him in a westerly direction (that is, passed him in a direction that was the same direction he was travelling).
He said the car was a little four-wheel drive, maroon and silver or grey. He said it was two-toned in colour - the bottom half of the car was one colour and the top half of the car was another colour. He said the top half of the car was grey (T 82). He remembered the car had green P plates on it.
The colour of the P plates is relevant because photos taken by the police of the defendant’s car at the wrecker’s yard on 10 December 2019 show it with a red P plate (see Exhibit 31). As I stated above, counsel for the defendant submitted that the photos in Exhibit 37 showing the defendant’s car and the P-plate are unclear and that the P plate could be red. This would make sense, he submitted, having regard to the red P plate shown on the car in Exhibit 31. If the P plate on the defendant’s car as shown in Exhibit 37 were red, then together with the differences in description of the colour and make of the car, this would mean that there is a reasonable doubt as to whether the car observed by Mr Kaczorowski near the Wingara Glen fire was the defendant’s car. As I have said, however, in my opinion, the P plate in the footage of the defendant’s car on page 4 of Exhibit 37 is green.
Mr Kaczorowski got back into his car and continued east on Wilshire Road. As he was coming up that road, the same car that had passed him turned left on to Wilshire Road out of a side street to his right and headed towards him on the wrong side of the road. The driver of that car corrected the path and continued travelling west on Wilshire Road at speed. Mr Kaczorowski drove toward the side street from where the car came. That was Wingara Glen. Mr Kaczorowski noticed a fire approximately 100 metres down that street (the Wingara Glen Fire – Count 3). He thought the flames were probably half a metre high at the time he saw it with the width area burning of about a metre or so.
He turned his car around to try and follow the other car he had seen, thinking that it had been involved in lighting of the fire. He called 000 to report the fire and the actions of the car. The 000 call was received at 15:01:06. On listening to the 000 call, it was apparent that in that call Mr Kaczorowski identified the make and type of the car. This was stated in the transcript as ”...”, that is not transcribable. This is a good example of why the evidence in such situations is the actual recording, rather than the transcript (which is only an aide memoire), because on listening to the recording, he told the triple-0 operator that it was a Daihatsu Feroza. When asked about this (T 91), he said that he made this identification because of the colour styling of the car and that there were not many cars in a small four-wheel drive of that type at the time and it stood out to him. He also said he had a friend that had one so that always stood out. He accepted that he did not see the car enough to recognise it as a Daihatsu Feroza but just estimated that it was.
The location of this fire at Wingara Road was estimated to be three kilometres from where the defendant’s vehicle was recorded travelling past the Caltex service station on Londonderry Road as noted above. Mr Kaczorowski marked the locations of what he had seen on Exhibit 12. Mr Kaczorowski observed the other car turned right from Wilshire Road into Jockbet Street. He tried to follow it but it was accelerating away from him and he lost sight of it. He turned around and then went back to where the fire was, with the intent of trying to extinguish it, but others were already there. He then continued on to pick up his children from school. He saw that there was a police officer where he had parked to pick up his children and he informed the police officer of what he had seen.

The defendant argues that the description of the car by Mr Kaczorowski, being silver/grey top half and maroon bottom half, and him referring to it as a Daihatsu Feroza with green P plates, raised doubts as to whether it was the defendant’s car that he saw. That is because the defendant’s car is a Toyota RAV 4, maroon in colour with some grey silver trim and (at least as at 10 November 2019) with red P plates.
The Crown says Mr Kaczorowski may be mistaken about the colour scheme of this car and its make. The Crown noted that he said that his description of the car was just his best estimate of it, as he said he did not see it well enough to identify the make and model of the car. The Crown says taken with all of the other evidence, including the distance between the CCTV footage of the defendant’s car at the Caltex Londonderry and the time between the footage and when the events involving and observed by Mr Kaczorowski occurred, it cannot be a coincidence that another small maroon/silver-grey four- wheel drive SUV with green P plates so similar to the defendant’s car of maroon silver colouring was in the area where the Wingara Glen Fire and the other fires were lit. It submits it must have been the defendant’s car that Mr Kaczorowski saw.
I will return to the issue of coincidence reasoning below, but I will note at this stage that I accept the Crown’s submissions. Mr Kaczorowski said that he did not observe enough of the car to properly identify its make and model but only estimated it to be a Feroza. The defendant’s car is clearly maroon with silver-grey trim on the doors and around the wheels. It could be said to be two-toned particularly from a quick observation when the car passes the observer who was not focused on it. The description of the colour scheme of the car being different to the defendant’s car can be put down to a mistake in detail and the time elapsed since the events. Mr Kaczorowski said on a couple of occasions whilst giving his evidence that “it was a couple of years ago” and similar qualifying phrases.
Further, in my opinion, the defendant’s Toyota RAV 4 could be described as a small four-wheel drive/SUV. Whilst there is no evidence before the Court as to what a Daihatsu Feroza looks like and whether it is in similar looks to the RAV 4, the Feroza is (according to Mr Kaczorowski) also a small four-wheel drive.
Additionally, Mr Kaczorowski said the car he saw had green P plates. As can be seen in the photos in Exhibit 37, and as I found above, the defendant’s car then had green P plates. I do not know, nor do I need to find, why the defendant’s car had a red P plate on it when it was photographed by the police on 10 December 2019, a week later. Relevantly, it had green P plates on it the day of 3 December 2019 when it was recorded on the CCTV footage just over four minutes before Mr Kaczorowski saw the car a few kilometres away.
The scene of the Wingara Glen Fire and the streets where Mr Kaczorowski saw the car are only about 3 kilometres from where the defendant’s car was recorded by the CCTV footage at Caltex at 14:56:17. At that time, the defendant’s car was travelling north towards Wilshire Road. I infer the defendant turned left onto Wilshire Road from Londonderry Road and then drove passed Mr Kaczorowski and turned around, as Mr Kaczorowski observed the car do. The defendant then drove past Mr Kaczorowski travelling east on Wilshire Road. The defendant must then have turned right in Wingara Glen from where he exited turning back left onto Wilshire Road, travelling west briefly on the wrong side of the road towards Mr Kaczorowski.
As I have said, the Crown case is a circumstantial one. There is no direct evidence that the defendant lit any of the fires. The Crown relies on a whole raft of circumstances in the evidence by which it submits that the only rational inference is that the defendant deliberately caused each of the fires. Generally, as I have said, in a circumstantial case no particular fact needs to be proved by the Crown beyond reasonable doubt. In my opinion, the fact as to whether it was the defendant’s car that Mr Kaczorowski observed (or indeed that it was the defendant’s car in all of the CCTV footage as contained in the synopsis on Exhibit 37) is so fundamental to the Crown’s chain of reasoning of the guilt of the defendant that it must be proved beyond reasonable doubt.
There is no other evidence which could put the defendant in the immediate vicinity of the Wingara Glen Fire (or any of the other fires) so that the Crown would ask me to infer that it was the defendant who intentionally lit the fires. As such, in my opinion, this fact is an indispensable link in the chain of reasoning towards an inference of guilt of the defendant with respect to the Wingara Glen Fire. It must be proved beyond reasonable doubt: see Shepherd v The Queen (1990) 170 CLR 573.
I must consider all of the evidence in the circumstantial case. Having accepted that it is his car passing Hinxman Road a short time earlier, the prospect of another small four-wheel drive of maroon/silver colouring with green P plates being in the area described by Mr Kaczorowski at the time he saw it is not, in my opinion, coincidental. I find that it is improbable that those two events could occur within that small geographic area and in the time frame so as to be a coincidence.
Again, the finding that the car that Mr Kaczorowski saw was the defendant’s car does not, of itself, mean the defendant is guilty of count 3 (or any other count) but it does place him at the area where the Wingara Glen Fire started very near to the time when it was first reported.
At 15:02 the defendant’s mobile device interacted with the mobile tower at 99 Grose Vale Road, North Richmond (item 17 on Exhibit 43).
DSC Hetherington said she observed smoke from another fire at about 15:06 and this was the Wingara Glen Fire.

The Racecourse Road Fire – Count 4

At 23:09, the defendant’s mobile device interacted with the mobile tower at 314 Windsor Street, Richmond (see item 18 on Exhibit 43). This tower is less than a kilometre from where the defendant was living.
At 23:28, the defendant’s mobile device interacted with a mobile tower at Blacktown Road, Richmond (Item 19 on Exhibit 43). This tower is approximately 1.5 to 2 kilometres southeast of the defendant’s home and towards the location of the fire the subject of count 4. At 23:37:47, the defendant’s car was recorded passing the BP service station travelling east on the Hawkesbury Valley Way at Clarendon (Item 11 on Exhibit 43).
Mr Robert Duffy is a volunteer retained firefighter with the NSW Rural Fire Service. He has volunteered with the Rural Fire Service for about 30 years. He works for Cleanaway. On the evening of 3 December 2019, he had just finished a shift at Cleanaway and he was heading home. He turned into Racecourse Road, Clarendon, heading north towards the Hawkesbury Valley Way. He saw a fire on the right-hand side of Racecourse Road (the Racecourse Road Fire – Count 4), just past the quarry. He said that at the time he observed the fire the flames were about a metre to half a metre high. It was about a metre wide, and he thought it had not long taken hold. He did not see any vehicles in the area where he observed the fire.
Mr Duffy rang 000 at 23:41:49 and reported the Racecourse Road Fire (see Exhibit 4). The Racecourse Road Fire was approximately 1.2 kilometres from where the defendant’s car was seen passing the BP service station on the Hawkesbury Valley Way at 23:37:47.

The Percival Street Fire – Count 5

At 23:42:25, the defendant’s car was recorded on the CCTV camera passing one of the pedestrian entry gates to the RAAF base at Richmond. The camera is on Percival Street, Clarendon. Another camera at the RAAF base captured the defendant’s vehicle travelling along Dight Street.
At 23:46:15, a 000 call was made by Mr Michael Willis reporting a fire at Percival Street, Richmond (the Percival Street Fire – Count 5). A second call reporting the fire was made by Leigh Thompson at 23:46:57 (see Exhibit 16). The Percival Street Fire is approximately 1 kilometre from the BP service station on Hawkesbury Valley Way, Clarendon. It is very close to the RAAF base at Richmond.
Helen Howard works at the RAAF base on Dight Street, Richmond. She was working on the night of 3 December 2019. She was travelling down Hawkesbury Valley Way to turn into Percival Street. She saw a grass fire in Percival Street. When she saw the grass fire, she observed the car in front of her about 70 or 80 metres further on (T 48). The car was travelling away from her. She dimmed her headlights because of the car and saw the fire, which she estimated at being about one square metre in size. She said she sped up a little to try and get a clear vision of the number plates of the car in front of her. She said she reached about 80 kilometres per hour when she lost sight of the car, which she estimated was travelling faster away from her than she was travelling. She lost sight of the car on an incline. She continued along Percival Street to the entrance to the RAAF base and entered the base. She went to work and rang the pass office to report the fire.
Sergeant Chegwyn in his analysis of the CCTV footage from the base traced Ms Howard’s car behind the other vehicle which I am satisfied, as I have said, is the defendant’s car. He gives evidence that the defendant’s vehicle turned right into Dight Street at 23:43:04. Sergeant Chegwyn says, and I accept, that this is the driveway to the turf business where the defendant was then working. After a short time, the defendant then came back out of the driveway onto Dight Street and was observed in the CCTV footage at the roundabout near the entrance to the base travelling towards Richmond at 23:50.46 (see pages 19, 20 and 21 of Exhibit 37).

The Police Investigation

Police commenced an investigation into the fires, codename “Strike Force Myler”. Clearly the defendant was a suspect, if not the prime suspect, once his car had been identified as being on the CCTV footage near one of the fires at or about the time it was first reported. The OIC gave some evidence that there were other persons of interest who were discounted as suspects.
Police spoke to the defendant’s employer to see if he was working on the particular day. They obtained warrants to intercept his phone and track his vehicle. There were numerous phone intercepts between the defendant and his then partner, Carly Ferguson, in evidence. In those phone intercepts they discussed the police investigation into the fires and the fact that the defendant was a suspect. He maintains in all of those intercepts that he was working that day and he went to sticky beak at the fires. He maintained a denial of lighting of the fires.
There were other phone intercepts between the defendant and one of his workmates, Corey Carpenter, in evidence. Again, the defendant maintained his denial of involvement in lighting the fires. I will return to some details of the calls between the defendant and Corey Carpenter in a moment.
An undercover operative, or UCO, from the NSW police force was engaged to approach the defendant to see if he would admit lighting the fires and give him information as to how he did so. The offer made by the UCO was that this information was to be passed on to a person said to be in prison who would then say he lit the fires. The UCO, the defendant, the prisoner and a supposedly corrupt policeman would then share the reward that had been put up for information leading to the arrest and conviction of anyone involved in lighting the fires. The UCO visited the defendant’s flat on 22 May 2020 and contacted the defendant by a text message on 28 May 2020 and 7 July 2020. The meeting at the defendant’s flat was secretly recorded. The defendant maintained his denial of involvement in the lighting of the fires to the UCO. He did not take up the offer made by the UCO.
Police distributed a flyer to the letterboxes in and around Richmond showing a small maroon/grey SUV. The defendant accepts this was his vehicle in the flyer. The police were asking for information in respect to it. The flyer (Exhibit 32) said the police had information that the vehicle was seen travelling in areas surrounding the fires during the times the fires were lit. There is evidence, which I will refer to in more detail below, that the defendant’s then partner called the defendant when she discovered the flyer. Knowing it was his car on the flyer, he told her to take all of the flyers out of the mailbox in the unit complex in which they lived, so they would not be collected by their neighbours. Clearly, this was because the defendant feared that they would know it was his car. She recovered some but not all of the flyers.
Police eventually arrested the defendant on 23 October 2020 and charged him with the matters presently before the Court.

Assessment of Witnesses

I observed each of the witnesses who gave evidence before me. All of them were, in my opinion, doing their best to give honest and reliable evidence. I did not form the view that any of them were embellishing their evidence or doing anything other than trying to answer the questions asked of them and give their best recollection of events which occurred almost three years ago.

Tendency

The Crown has served a notice under s 97 of the Evidence Act 1995 (NSW) (‘the Tendency Notice’) alleging that the defendant had a tendency to act in a particular way, namely to light fires in rural or semi-rural areas and allow them to spread. The Tendency Notice also alleged that the defendant had a particular state of mind, namely a fascination and obsession with fires in rural or semi-rural areas. When the hearing commenced before me, this pre-trial issue had not been determined. I was told that the evidence to be relied on as tendency and coincidence evidence was, in effect, the whole of the evidence in the Crown case. In those circumstances, it was submitted by both counsel that, rather than leave the bench and spend a day or so reading that evidence and then determine the pre-trial issue and then return to the bench and hear the same evidence again, I should hear all the evidence. There could then be submissions on whether the evidence could be used as tendency and coincidence evidence. As this was a judge alone hearing, I acceded to those submissions.
As I have said, the Crown seeks to use all of the evidence in its case as tendency evidence. It says this evidence goes to prove the tendency and state of mind alleged in the Tendency Notice. It submits it is significantly probative of the facts in issue and that the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant (see ss 97 and 101(2) of the Evidence Act 1995 (NSW)). As the Court of Criminal Appeal said in Elomar v The Queen (2014) 316 ALR 206 at [359] said:

Tendency evidence is evidence that provides the foundation for an inference. That inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.

The Crown case here is wholly circumstantial and deals with events that took place on one day. There is no direct evidence as to who lit the fires, or how they were lit. There is no prior history of the defendant having lit fires, or engaged in discussion about, or shown any interest in, fires prior to the events of 3 December 2019. It might therefore be asked: how does the evidence which does not (directly) show that the defendant has (or did) light any fires, prove he has a tendency to light fires in rural or semi‑rural areas, or has a state of mind that he has a fascination or obsession with them?
The Crown seeks to use the evidence in respect to each of the counts as tendency evidence in respect of the other charges. As I have directed myself, I must consider the evidence with respect to each count separately. However, the question in my mind is how can evidence in respect to one count be used as tendency evidence in respect to others unless the evidence for that count establishes beyond reasonable doubt that the defendant did light the fire for that count? Absent such a finding, I am left without any evidence on which to find the evidence relied upon that supports the tendency alleged. Put another way, there is no direct evidence that the defendant lit the fires or has lit fires in similar or any other circumstances before. It seems to me that I cannot find that the supposed tendency evidence proves the asserted tendency (which the Crown wants to use to show that the defendant acted in a particular way with respect to all counts in the indictment) unless I find that the evidence proves beyond reasonable doubt that the defendant lit the fires: that is, that he had the tendency asserted (see Townsend v The King [2022] VSCA 201 at [118]-[148]).
Other questions remain in my mind with respect to the tendency issue. Even if I find that the defendant is guilty of, say, the first count, is this enough to establish the tendency alleged? If the tendency is proved, is it of significant probative value to the remainder of the counts? It is a very general tendency alleged in the Tendency Notice, namely to light fires in rural or semi-rural areas. The specificity of the tendency asserted may impact on the probative value of the tendency if it is proved: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at (for example) [64] per Gageler J.
I accept that in an appropriate case, proof of one previous incident may be sufficient to establish a tendency to act in a particular way. This happens sometimes in sex offence cases. However, in this case, would the proof of guilt of the defendant in respect to one count be enough? Would I have to decide his guilt on more than one count before I was satisfied that the conduct proved the asserted tendency?
The Crown says that I must consider all of the evidence together, including the specific similarities and the circumstances of the fires being lit on the same day and the defendant’s car being seen at or near the site of each of the fires. If, in doing so for (say) count 1 I was satisfied the defendant committed the offence charged and thus had a tendency to light the fires, is that significantly probative of some or all of the remaining counts which also requires me to take into account all of the circumstantial case, including the similarity of evidence surrounding the lighting of the fires? In my opinion, to reason this way is more akin to coincidence reasoning than tendency reasoning.
I do not think this is a case where the evidence said to be tendency evidence goes to prove the tendency asserted. That is because absent of the finding of guilty of at least one count, no tendency exists. I reject the evidence as being tendency evidence.
I should mention the Tendency Notice also asserts the defendant had a particular state of mind, namely a fascination and obsession with fires in rural or semi‑rural areas. It was submitted originally that the evidence to support this state of mind was:

Texts between the defendant and his then-partner Carly Ferguson on 3 December 2019 (Exhibit 26); and

A telephone call made by the defendant to his uncle on 18 January 2022.

Neither support the state of mind asserted. As to the first, they were simply texts from the defendant to his girlfriend when she was away from home notifying her of the fires in the area. It was said by the Crown that they were animated. I do not know how that conclusion can reasonably be drawn. I read them as nothing more than texts which include the defendant telling her of the fires in the local area.

As to the telephone call with the uncle, the call was, on its terms, to see if the uncle and his wife were safe as they lived in an area of the New South Wales coast that was being significantly impacted by the bushfires then raging all over the state. The call did not discuss fires generally, or the fires the subject of these proceedings, but was focussed on the fires and smoke impacting the defendant’s uncle and aunt. It stretches credulity to say that a call by a nephew to his uncle and auntie enquiring that they were okay during a bushfire emergency, when they live in an effected area, shows a fascination or obsession with fires in rural or semi‑rural areas.
It was said (for the first time) in closing that the whole of the evidence otherwise supports the state of mind asserted. I reject that submission. To find this is so would face the same circularity problems as the tendency argument.
The state of mind argument has no merit and I reject it.

Coincidence

The Crown is on stronger ground with respect to coincidence. There was also a coincidence notice served by the Crown under s 98 of the Evidence Act 1995 (NSW). The coincidence notice states that the Crown relies on the coincidence evidence to prove that, because of the improbability of the events occurring coincidentally, the defendant deliberately lit the fires.
The notice sets out the similar circumstances of the fires occurring, namely:

All fires occurred within approximately nine hours;

Each fire occurred in a semi‑rural location;

The five locations are within a confined geographical area;

Each fire initiated at the side of the road or trail;

Each fire was not the result of natural causes;

Each fire was not accidentally caused, e.g. by powerlines or work taking place in the area;

Sequence 1 to 3 all ignited within 30 minutes of each other;

Sequences 2 and 3 ignited within about 10 minutes of each other;

A vehicle sped away from sequence 3 being followed by a witness;

The vehicle was a small red four-wheel drive which, from the description, was similar to a Toyota RAV4;

The vehicle sped away from sequence 5 being followed by a witness; and

In the vicinity of the chase at an approximate time a vehicle, a small red four-wheel drive, consistent with the RAV4 was captured on CCTV.

The Crown submits that the evidence relevant to each of the five fires is admissible to prove that the defendant deliberately lit those fires having regard to the similarities in the events and circumstances in which they occurred, as it is improbable that such events happened coincidentally. It submits that a consideration of the listed similarities of the events/circumstances shows that they are capable of establishing the five fires were deliberately lit and that one person was responsible. Further, it was submitted that the evidence is capable of establishing that the person responsible for lighting each of the fires drove a small red car with silver trim being a four-wheel drive consistent with the Toyota RAV4.
The Crown referred to a passage from Tamara Hunt v The Queen [2017] VSCA 196 where the Court was considering coincidence reasoning for a case involving 36 bushfires and where the actual cause of the fires had not been determined. At [29], the Court said:

In this case the applicant has somewhat underplayed the combined weight of all of the circumstances. The fact that there is no outstanding distinctive feature about the fires does not diminish the other connecting features of the case. His Honour had to consider 36 fires. Most of the fires occurred in about three months, and nearly all of them in the early hours of the morning in a relatively confined geographical area. None of the fires were found to be accidental and experts, without being able to establish cause, were of the opinion that the fires had been deliberately lit. All of the fires had been at the side of the road by igniting available materials. His Honour did not give great weight to the location of the fires which were in an area which was easily accessed along a path between the applicant’s home and that of her boyfriend’s house. His Honour placed reliance upon the applicant’s false denials. His Honour might have added that most of the fires occurred in the early hours of the morning and that the applicant admitted she was often out driving to her boyfriend’s house in the early hours.

I accept that the evidence in the Crown case can be relied upon as coincidence evidence. I accept that the evidence, having regard to all of the evidence adduced by the Crown, has significant probative value. I accept that the probative value of the evidence outweighs any danger of unfair prejudice to the defendant. I note in this regard that the hearing is before me sitting as a judge alone and that I will give myself appropriate directions and the usual dangers associated with juries misusing evidence do not apply.
The Crown says that the evidence is before me because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that I would be satisfied that the person who did one act (or set of acts) must have done the others. That is to say, there is such a significant similarity between the acts and the circumstances in which they occurred that it is highly improbable that the events occurred simply by chance, that is, by coincidence. The improbability of two or more events occurring by chance, or coincidently, may lead to a conclusion that the person committed the act (or had the state of mind) the subject of the charges.
In this case, the Crown says that, provided I am satisfied that the car described by the witnesses and shown in the CCTV footage was the defendant’s RAV4 and that the defendant was the driver of that car and having regard to the matters it listed as similarities in circumstances of the five fires, then those acts and the circumstances in which they were done were so similar to the acts alleged in the indictment, that I would conclude beyond reasonable doubt that the defendant must have committed the offences with which he has been charged.
The evidence of the pattern of behaviour can only be used in the way the Crown asked me if I find two matters: first, that the defendant did the other acts; and second, that they are so similar to the other acts giving rise to the charge that I find it is highly improbable that both acts were committed by a different person. If I accept those two matters, then I can use the evidence, together with the other evidence in the Crown case, to be satisfied beyond reasonable doubt that the defendant committed the acts giving rise to the offences charged in the indictment.
However, this is the only way I can use the evidence of other acts. I cannot reason that because the defendant may have committed the other acts, he is the type of person who will commit criminal activity generally or he is a person who was likely to have committed all of the offences charged. The evidence is not placed before me for that type of general reasoning. I cannot punish the defendant for other conduct attributed to him by finding him guilty of the charge/s in the indictment.

Liberato direction in respect of the defendant’s version of events

The defendant gave an account of events as to why his car, at or about the time of the fires on 3 December 2019, was in the area of the fires. This was in the context of the police flyer placed in the mailboxes around the Richmond/Londonderry area on 27 May 2020.
After showing Mr Grima the flyer, the defendant told Mr Grima that the car pictured in the flyer was his car and that the police had footage of his car (T 95.40-46). When asked by Mr Grima how the police had footage of his car, the defendant told him that:

The properties in Castlereagh, in that area, they’ve all got electric gates and they’ve all got cameras at the front for security, and they’ve got footage of my car driving, driving through there.” (T 96.1-3).

Mr Grima asked the defendant what he was doing there. The defendant told him that he had just recently got a job as a landscaper at that time and was doing a job in Castlereagh when he saw the smoke and thought he would go over and have a look, as you do when you stickybeak, and see what was going on in the area. When questioned by Mr Grima as to whether he had lit the fires, the defendant denied that he had.
The defendant gave a similar, although slightly different, version of events to Kylie Hogbin. The day after she had spoken to the police in September 2020, the defendant and Carly Ferguson went to see Ms Hogbin. The defendant said that he “needed to explain what was going on” (T 109.44). Ms Ferguson reached into her bag and pulled out a piece of paper on which was a photo of the maroon car. Undoubtedly, this was the police flyer.
Ms Hogbin asked the defendant whether the photo showed his car. The defendant said that it did. She asked him what he was doing there and whether he “did it”. The defendant denied that he had lit the fires and said that he was at work that day and his boss could vouch for him. He said he and the boys were outside the shed at his workplace, the boys pointed out the smoke they could see in the distance, and it looked like it was coming from Richmond way. The defendant said he was just about to finish work and drive home and, as Carly was not home, he was on his own and he was bored. He thought he would jump in his car and go look at the fire. Ms Hogbin asked the defendant if he stopped anywhere before he got to the fires, like at a service station or a bottle shop where he could prove that he was there by using his card. She said the defendant told her that he did. He said that he had stopped at the bottle shop at Londonderry and bought a six pack of Jack Daniels (T 113.38-49). Once again, when asked, the defendant denied that he had had any involvement in the lighting of the fires.
On 14 August 2020, police attended the defendant’s premises in Richmond. They served him with a demand pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) with respect to his Toyota RAV4 vehicle registration CT70WF. That demand requires an owner of the vehicle to disclose the name and residential address of the driver of, and any passengers in, that vehicle on or about a particular time. The time the subject of the demand was between 2.30pm and 3.10pm on 3 December 2019, being the date and time of the first three fires.
Plainclothes Senior Constable Travers provided a statement which was read into evidence. In that statement, she said that when she arrived at the defendant’s premises with plainclothes Senior Constable O’Neill, they met the defendant and Carly Ferguson. She informed the defendant she was investigating a number of bushfires that happened in Londonderry on 3 December 2019. She said that the defendant said to her, “I didn’t light the fires.” She informed the defendant of the nature of the demand with respect to the vehicle. She said the defendant said to her:

Cause I remember that day. I was with Alex and Corey. We had turned off the M7 and were driving on Blacktown Road and we saw the fires. Then we got back off to the yard and Alex told me to knock off, but I got in my car and went for a drive to the fires, cause, like, to have a stickybeak.

Travers then further explained the nature of the demand to the defendant. She said that the defendant said to her that he was the owner of the car and that he would have been driving that day. He said he was on his own and he was the only person who drove the car. She wrote his answers down and the answers were read to the defendant who agreed that they were accurate. He was told that he was a suspect for the fire offences. She told him she would like to interview him and he agreed to arrange that. He was told he was entitled to get legal advice.
As I have mentioned, there were also a number of intercepted phone calls in evidence. Those intercepted phone calls were played in court and the media on which they were recorded became exhibits in the proceedings. There were transcripts of the calls prepared which were marked for identification. I remind myself that the transcripts are aide memoirs and not the evidence. I remind myself that sometimes, although the best efforts are made to ensure the transcripts are accurate, there may be errors in them and the recordings themselves are the evidence.
Several calls between Corey Carpenter, who also worked at the turf business with the defendant, and the defendant made on 20 August 2020 were intercepted and in evidence. In the first of those calls, commencing at 8:54pm, Corey tells the defendant that the police had visited him. He asked the defendant what was going on. The defendant told him that he had been accused of lighting the fires. He asked Corey if he remembered that he, Corey, Joel and Alex were with him and coming home from doing a job at Londonderry. They were coming down the M7 onto Blacktown Road to go back to the shed and they saw the smoke at Londonderry. The defendant said he asked Alex (being Alex Bruni, the boss of the business) if he wanted him to stay or go home and Alex told him to go home. The defendant said that being a stickybeak and a fuckwit, he went around looking at all the fires. He said this was why his car was the one seen in the area.
Later in the same call, the defendant again repeated that on the day they had come home on the M7, it was like 30 or 40 degrees and they came off the M7 near Ikea and “all you could see was smoke”. He said they got closer to where Bligh Park McDonald’s was and Joel said of the smoke “that’s Londonderry, that’s Londonderry”. He repeated that, as he was a stickybeak, he went and looked at the fires and that is why his car was where the fires were.
Later on the same evening of 20 August 2020, at 9:35pm, another call between the defendant and Corey Carpenter was intercepted and recorded. The defendant had just got home and his girlfriend, Carly Ferguson, had told him that the police had been around again to their place that night. Carly was on the phone on loudspeaker as well during this call. After discussing what she had told the police, the defendant again said that he, Corey and Joel were in the truck together and Alex was in his ute that day. He said they had done a job and they were coming down the M7 onto Richmond/Blacktown Road past Ikea and they had seen the smoke. When they got back to the shed of the business, the defendant said he asked Alex if he could go home and was told that he could. He was given $150 to $200 cash by Alex and he went to Dan Murphy’s, got a six pack of Jack Daniels and drove around where the fires were because he was a stickybeak.
A third and final call between Corey Carpenter and the defendant on 20 August 2020 took place at 10:10pm and was intercepted and recorded. The defendant was clearly stressed and nervous about the continuing police investigation. Again, in more emphatic terms, the defendant denied any involvement in lighting the fires.
Whilst the defendant, as was his right, did not participate in an interview with the police nor give evidence in the proceedings, he does rely on his version of events as set out in the phone calls in defending the matter. He submitted that he was mistaken as to whether or not he was at work on that day and he went to look at the fires in the car as he was a stickybeak.
I regard the evidence that I have just referred to as effectively a version of events relied upon by the defendant, such that I should give myself a Liberato direction (see Liberato v The Queen (1995) 159 CLR 507 and De Silva v The Queen [2019] HCA 48). As such, I direct myself that it is important that I understand the defendant must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations.
If follows from this:

First, if I believe the defendant’s version, obviously I must acquit him.

Second, if I have some difficulty in accepting that version but think it might be true, then I must acquit him.

Third, if I do not believe the defendant’s version, then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of the evidence that I do accept, proved the defendant’s guilt beyond reasonable doubt?

As I previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charges which it brings against the defendant and there is no onus on the defendant to prove that he is not guilty.

Lies and Post-Offence Conduct used as Evidence of Consciousness of Guilt Direction

I, therefore, need to assess the evidence to decide whether I believe the defendant’s version of events that he was at work that day, saw the smoke and decided to go and look at the fires.
There is an added issue in this case because the Crown alleges that the evidence to which I have just referred, which I have described as the defendant’s version, is a lie which is evidence of a consciousness of guilt. The Crown also submits that the conduct of the defendant in having his girlfriend remove all of the police flyers from the mailbox in the building in which they live also shows a consciousness of guilt.
Accordingly, the next direction I must give myself concerns that evidence that I have referred to as the defendant’s version.
As I have said, the Crown says the defendant lied because the evidence establishes that he was not at work the day of the fires. The Crown says the evidence of Rebecca Bruni and the defendant’s co-workers at Naturelink Turf Supplies show that the defendant was not working on that day. Ms Bruni, together with her husband Alex Bruni, operate Naturelink Turf Supplies. Their business operates from an address in Silverdale and has a shed where it keeps its truck and equipment at 246A Dight Street, Richmond. That was the address where the workers would gather and collect the truck and whatever equipment was required before going to whatever job they had been allocated.
The evidence is that the defendant started working at the business as a casual employee around October or November 2019. Ms Bruni gave evidence about the system by which the workers entered details on a whiteboard at the Dight Street premises indicating the day they worked and the number of hours they worked on that day. The whiteboard had a vertical line of letters “M, T, W, T, F” indicating the days of the week. A worker would then write the number of hours he worked next to the relevant initial. For example, if the defendant worked on a Monday for nine hours, he would write nine next to the M in the chain column. The business pay cycle was Friday to Thursday, so each Thursday the worker would take a photo of his column and text it to Ms Bruni. She would then prepare the payslip. Exhibit 23 is a copy of the defendant’s payslip for the period 29 November to 5 December 2019. Also included is photo of the whiteboard column for the defendant for that period and a screenshot of the text from him to Ms Bruni sending that whiteboard column. Those documents do not show him working on 3 December 2019.
Two of the defendant’s workmates from the period, Corey Carpenter and Joel Stewart, also gave evidence. Both said the defendant did not work with them on 3 December 2019. I formed the view that they had refreshed their memories about this from work records and discussions with their boss, Alex Bruni. I accept their evidence as truthful. It is corroborated by the documents in Exhibit 23 I have referred to.
Exhibit 23 also is a screenshot of Corey Carpenter’s whiteboard column showing he worked 10.5 hours on Tuesday 3 December 2019. He said he did not work with the defendant on that day. He said he knew this because he was listed on the whiteboard but the defendant was not. He said he knew he had been paid for that day and he had been told that by his boss Alex (T 98.1-43).

I find on the preponderance of the evidence the defendant did not work on 3 December 2019. I accept that the records of the turf business show that he was not working that day.
It is to be noted that in the various versions given by the defendant trying to explain why his car was in the CCTV footage in the police flyer, there were subtle differences. There were subtle differences as to when the defendant said they saw the smoke. In two of them, he said he went to get some alcohol before going to look at the fires, either at a bottle shop in Londonderry or to Dan Murphy’s. The Crown led evidence from each of those stores which make it improbable that the defendant went to either store on 3 December in the afternoon and bought Jack Daniels (see Exhibits 34 and 35). I find that he did not do so.
Thus, I reject the defendant’s version that he has given to the witnesses or on intercepted calls that he was at work on the day and went to the fires because he was a stickybeak. I do not accept it happened. In so far as the defendant’s counsel said that there was evidence the defendant sometimes went to the shed of the turf business when he was not working, this does not assist as the defendant was adamant in each of the versions he gave about the events of 3 December, or the day of the fires, that he had been with the other workers when they saw the smoke after they had come off the M7. Thus, if his version was to be accepted, he would have had to have been in the truck with the other workers returning from a job - being at the shed but not working does not fit the narrative.
Having rejected the defendant’s version, I must now decide whether it is a lie. The defendant’s counsel said the defendant may have been mistaken about that day. If that is right, then it would not be a lie.
First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue but does not realise at the time that it is untrue, then that is not a lie, the person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, it is untrue.
If I find, in giving the version of events I have referred to, the defendant told a lie, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has. I may take the lie into account as evidence of the defendant’s guilt, but I can only do that if I find two further things which I will refer to shortly. When I say I can take it into account as evidence of the defendant’s guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the defendant told a lie that this finding can prove the guilt of the defendant by itself.
Apart from the fact that the defendant made the statement and that it amounted to a deliberate lie, before I can use the lie as some evidence of the defendant’s guilt, I must find two further mattes proved. First, I must find that what the defendant said that amounts to a lie relates to an issue that is relevant to the offences the Crown alleges the defendant committed. It must relate to some significant circumstance or events connected with the alleged offences. The Crown says it is relevant because it supports the Crown case that the defendant intentionally lit the fires. It supports the Crown case that it was the defendant’s car at the scene of each of the fires. The Crown says if the defendant is lying about going to look at the fires because he was a stickybeak, the reason he was in the area of the fires and caught on the CCTV was because he lit the fires. The Crown says he knew his car was seen in the area of the fires on the day and he needed to come up with a reason why that was so.
Secondly, I must find that the reason the defendant told this lie was because he feared that telling the truth might reveal his guilt in respect of the charges he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
I must remember, however, that people do not always act rationally, and conduct of this sort, that is telling lies, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic or to escape an unjust accusation, or to protect some other person or to avoid a consequence unrelated to the offence. If I think that the lies may have been told for some reason other than to avoid being implicated in the commission of the offences for which the defendant is now on trial, then they cannot be used as evidence of the defendant’s guilt. If that is the case, I should put them to one side and focus my deliberations on the other evidence in the case.
Let me summarise what I have just said. Before I can use what the defendant said as something which points to his guilt, I must be satisfied that he lied deliberately. I must find that the lies relate to some significant circumstance or events connected with the alleged offences. I must find that the reason the defendant lied was because he feared that the truth would implicate him in relation to the commission of the offences for which he is now on trial.
The defence case in relation to this issue is that if I reject, as I have, the defendant’s version that he was at work on the day of the fires, he did not lie. Mr Pierce submitted that I should find that the defendant panicked when he found out that his car was on the flyer and he was being investigated by the police. He said that it was open to find the defendant did not want to face unjust accusations of having lit the fires.

Good Character Direction

A factor that the defendant submits should weigh heavily in my consideration of this matter, particularly as to whether the defendant committed the offences or was lying in respect to his version, is evidence of his character in a particular respect. The defendant relies on evidence from police to establish that he is a person of good character in the respect that he has never been charged with lighting fires.
The law provides that a judge is entitled to take evidence of the defendant’s good character into account in his or her favour on the question of whether the Crown has proved his or her guilt beyond reasonable doubt. The fact that Mr Andrews is a person of good character in the respect I have mentioned is relevant to the likelihood of him having committed the offences alleged. I can take into account Mr Andrews’ good character in that respect by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for myself.
Further, a judge can use the fact the defendant is a person of good character in a particular respect to support his credibility. I may reason that a person of good character is less likely to lie or give a false account. Whether I reason that way is a matter for me.
None of this means, of course, that good character in the respect mentioned provides Mr Andrews with some kind of defence. It is only one of the many matters that I have to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of Mr Andrews. What weight I give to the fact that the defendant is a person of good character in that respect is completely a matter for me, but I should take that fact into account in the way that I have indicated to myself. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time.

Did the Defendant Lie?

In my opinion, despite the evidence of good character of the defendant in the respect that I have mentioned, the defendant did lie in giving his version of events of 3 December 2019. As I have set out above, I find that he did not work on that day. It was a fabrication by him that he had worked and that he had been with the other workers when they came off the M7 and noticed smoke. He made up the conversation with Alex Bruni about being able to go home and being given cash. He lied about going to a Londonderry bottle shop or Dan Murphy’s and buying a six pack of Jack Daniel’s before going to stickybeak at the fires. The evidence of purchases from those two bottle shops shows that this did not happen on that day.
The defendant concocted this version of events when he discovered that he was a person of interest in the investigation into the fires. He found out that the police had put a flyer into the letterboxes at his unit complex. That flyer had a picture of his car. He knew and admitted that this was his car. He somehow knew the properties in the area had CCTV cameras which had captured his car. He knew the police were talking to his workmates to see whether he had been at work that day. He needed to come up with a reason as to why his car was seen in the vicinity of the fires that day. He came up with the false narrative I have described above. I find that he deliberated lied to those whom he told this version of events to.
The next question is whether the lies are evidence of the consciousness of guilt. In my opinion they are. I am satisfied the defendant lied deliberately. I find that the lies related to the significant circumstances or events connected with the lighting of the fires, namely, the presence of the defendant in his car in the vicinity of the fires that were lit that day, at or around the time they were first reported. He knew that the presence of his car would potentially implicate him in some involvement in the fires. He had to come up with an excuse for his car being caught on the CCTV footage from where the still photo in the flyer was taken. He must have feared that his car would have been captured by other CCTV cameras as well. I find that the reason the defendant lied was because he feared that the truth would implicate him in relation to the commission of the offences for which he is now on trial.
I do not accept the defence submissions that he was doing so to avoid false accusations. He could not have seen the smoke from the shed and gone to look at the fires as he said. The timing of his car being recorded on the various CCTV footage in the daylight hours of 3 December 2019, and the reporting of the fires, means that he would have been in the area at or about the time of the Smeeton Road, Fire Trail Road and Wingara Glen fires started. This smoke could not have been visible in the manner he described in his version at the time he said he had seen it, then left the shed, went to the bottle shop to get drinks before going to look at the fires. He was desperate to come up with a story that (he thought) would explain his car being in the area of the fires captured on the CCTV footage. However, it was just that - a story.
Further, if it is right that he was going to look at all the fires having seen the smoke, why was his car in the vicinity of the fires lit at night (being the Racecourse Road and Percival Street fires) when it is unlikely he could have seen the smoke at night so as to be able to know where the fires were to be able go and look at them?
I do not accept that he was lying simply to avoid what he perceived were false accusations. I have taken into account that he continuously denied involvement in the lighting of the fires in all of the recorded calls and when discussing them with other witnesses and the UCO. However, that does not alter my view that his lies were not simply to avoid false accusations or made at the time out of panic. He was persistent in his lying about the matters.

Cause of the Fires

It is necessary now to assess the evidence with respect to the cause of each of the fires. It is necessary for the Crown to prove beyond reasonable doubt that the defendant intentionally lit each of the fires.
As I have said on several occasions, there is no direct evidence that the defendant or anyone else lit the fires. There is expert evidence with respect to the cause of two of the fires and then lay opinion evidence of a witness as to the cause of one of the other fires, or at least a view expressed that it had been deliberately lit.
I propose first to examine the expert evidence and make findings with respect to the fires the subject of that evidence. I will then examine the evidence with respect to the other fires and assess whether findings can be made, and if so, what those findings are with respect to the cause of the fires.

The Expert Evidence – Smeeton Road and Fire Trail Road Fires

Detective Sergeant Sarah Southall prepared a statement dated 17 September 2020 that became Exhibit 42. She was unavailable to attend and give evidence and be cross‑examined, and there were some objections to parts of the report which, by consent, were removed from the version tendered.
Detective Sergeant Southall did not give any evidence of the cause of any of the fires, only the points of origin. She is, amongst other things, an expert in crime scene examination and investigation of fires. She acknowledged the Expert Witness Code of Conduct and agreed to be bound by it.
On 4 December 2019, as the NSW Police Force Senior Fire Investigator, she attended the fires at Smeeton Road, Fire Trail Road and Wingara Glen. She attended with NSW Rural Fire Service investigator Shane Bryant. Officer Bryant is also an expert in fire investigation. He has over 35 years of service in the Rural Fire Service. He holds a Certificate in Fire Investigation from Charles Sturt University. He has completed 368 investigations into fires, the majority of them being with respect to wildfires. He is a certified fire investigator, having completed the course by the International Association of Arson Investigators.
Detective Sergeant Southall opined that the cause of wildfires can be grouped into two categories: naturally caused fires and human caused fires. Naturally caused fires often result from lightning strikes, or less likely from spontaneous combustion of stored haystacks, for example. She said that human caused fires can be deliberate, negligent or accidentally lit, and would involve mechanisms such as:

Failure of manmade infrastructure;

Activity of machinery or work;

Human activity such as campfires or escaped controlled burns;

Negligent acts such as discarding cigarettes; and

Deliberate acts such as incendiary devices.

Officer Bryant said that exclusionary factors he looks for in terms of cause of fires are:

Powerlines: if powerlines are present, he looks for appropriately fitted spacing bars so that the powerlines cannot touch in the wind and cause sparks.

Proximity to railway lines: railway locomotives emit carbon particles which will be hot and, if they land on the grass, cause fires. Additionally, railway workers use detonators on the railway lines to warn them of oncoming trains and when these detonate, sparks can cause fires.

Human activity such as camping: campfires can spread, causing fires. Other indications may be cigarette butts or matches found at fire scenes.

Natural causes, such as lightning.

Juvenile fire playing: juveniles often use matches and lighters and, if found in the area, this can be evidence of human cause.

Equipment use: for example, use of machinery such as angle grinders, motorcycle exhausts may cause fires.

Fire Trail Road Fire

The first area Detective Sergeant Southall attended was the area of the Fire Trail Road Fire. She described an area east of the roadway which sustained significant fire damage for an area of about 200 square metres. She observed, on the eastern side of Fire Trail Road near the corner of Hinxman Road, a large pile of mulch which had been illegally dumped at the site. The pile of mulch was still smouldering at the time she examined it. She also observed around the area numerous piles of rubbish and general household refuse. There were other exposed car parts and stacks of paper which were also still smouldering.
After examining the area for indications of wildfire, she formed a view as to the lateral and flanking movements of the fire. She marked the advancing movement of the fire with red flags and observed that it formed a V‑pattern from the general area of origin. She attached numerous photos to a report depicting the scene. Detective Sergeant Southall was of the opinion that the origin of the Fire Trail Road Fire was the dumped mulch at the side of the road. The fire then travelled, driven by westerly wind and fuel, in a north-easterly direction from the area of the dumped mulch.
Officer Bryant also attended the Fire Trail Road site on 4 December with Detective Southall to provide an opinion as to the cause and origin of the fire. He agreed that the origin of the Smeeton Road fire was the pile of dumped mulch. He said that he attended the site on 3 December 2019 and he had observed the pile of mulch. He said that on that day he had a look at the mulch and formed the view that it had been lit on top as the fire did not have any depth in the pile of mulch. He formed the view that the fire started on the surface of the mulch. The view was confirmed when he went back on 4 December 2019 and saw that the mulch had been disturbed, namely, overturned presumably by some of the firefighters. He said that they had been turned over to assess whether or not there had been spontaneous combustion in the mulch.
He gave evidence that material such as the mulch at the Fire Trail site can spontaneously combust by way of decomposition to the vegetation in the pile becoming hot. Usually, although there can be exceptions, because the top of the pile will be cooler as it is exposed to the elements, such spontaneous combustion will occur within the pile of mulch (or grass clippings et cetera), as the inside of the pile will be protected and become very hot causing a fire. He said in such a case, he would not see anything on the outside of the pile in such circumstances unless it emits some smoke. He said when he saw the pile of mulch on 3 December, it was smooth on top and did not have a crack in it where the fire would have come up from within. That is why he discarded spontaneous combustion of the pile of mulch in this circumstance.
Officer Bryant formed the view that the Fire Trail Road Fire was “suspicious”. He formed that view by eliminating as a cause the other causes of fire that I have described above. By “suspicious” he said that he meant that there was no direct evidence that the fire was caused by other means (T 140.1-17). In this case, he excluded powerlines, railway lines, lightning (as he checked the data for lightning and there had not been any in the area for at least a week), campfires or any of the other exclusionary indicators as the cause of the fire. He said in those circumstances, “it was a suspicious fire which usually means to me that it’s had some sort of human intervention” (emphasis added).
When pressed on his use of the qualifying word “usually”, and asked if he was of the view that absent any of the other causes he had described this meant the fire was the subject of human intervention, he said (T 401-402.12) that it “could have been…It was an elimination of other causes, so it becomes suspicious. I don’t know, sorry…I suppose you know I’m going out to a lot of fires and they just don’t start from spontaneous combustion always”.
Officer Bryant said that he has looked at many fires and if the fire did not start by natural causes, in his opinion that usually means that someone had lit it. I note, and the defendant relies on the fact, that Officer Bryant was not definitive in saying that such a fire must have been deliberately lit (see T 401.31-402.5). Indeed, on one view he was careful not to commit himself to such a position. In cross-examination, the following occurred at T420.48-421.14 in respect of each of the fire sites that Officer Bryant saw on 4 December 2020 (including the Fire Trail Road site):

Q: In relation to your opinion you have indicated that the fires could have been deliberately lit, is that correct?
A: I just said they were suspicious.
HIS HONOUR: That they were suspicious?
PIERCE
Q: That they were suspicious?
A: That’s correct.
Q: You don’t know how they were lit, correct?
A: Not at all.
Q: You don’t know whether they were deliberately lit, do you?
A. Not at all.

Officer Bryant gave evidence of the spread of the Fire Trail Road Fire which corresponds with the evidence of Detective Sergeant Southall in that regard.
It can thus be seen that there is no expert evidence that the Fire Trail Road Fire (or the Smeeton Road Fire, as this passage of evidence related to both) were deliberately lit. The highest the expert Officer Bryant was prepared to put it, having eliminated the other exclusionary causes, is that the fires were “suspicious” and that this usually means that they were the result of “human intervention”. However, human intervention can be accidental, negligent or intentional.
The Crown must prove that the fire was intentionally lit (and intentionally lit by the defendant). I consider proof of the fact that the fire was deliberately lit (separate from whether it was lit by the defendant) to be such a fundamental link in the Crown’s theory of the guilt of the defendant that it must be proved beyond reasonable doubt.
In this case, each of the experts have discussed possible causes of wildfires. It is clear on the evidence of Officer Bryant that he had excluded from the Fire Trail Road Fire and the Smeeton Road Fire the other causes of fires he listed. Some of those included what could be regarded as negligent or accidental causes. He expressly said, however, that he did not know how the fire was lit and did not know whether it was deliberately lit. Detective Sergeant Southall did not give an opinion on the cause of the fire, but she also listed factors which can cause fires. There is no evidence before me that any of those factors, which generally correspond with the factors listed by Officer Bryant, were present.
I accept Officer Bryant’s evidence that the mulch at the side of road did not spontaneously combust. This finding, together with the absence of any of the other factors which may cause wildfires listed by the experts, leads me to conclude beyond reasonable doubt that the Fire Trail Road Fire was caused by human intervention. However, that does not mean that it was deliberately lit. It may have been caused, as is clear from Officer Bryant’s evidence, by accidental or negligent human intervention.
The evidence of Officer Bryant referred to above, together with this evidence excluding other factors, is that he does not know how the fire was lit and he cannot say it was deliberately lit, but he excluded spontaneous combustion of the mulch and the other exclusionary causes. Despite the elimination of the other possible causes, however, he was quick to answer that all he could say was that the fire was suspicious. Thus, it is possible the fire could have been accidently or negligently lit.
In a circumstantial case such as this, a hypothesis consistent with the innocence of the defendant must be consistent with the evidence and not based on mere conjecture. This does not entail an obligation on an accused person to adduce evidence to prove or support such a hypothesis. It is sufficient if such a hypothesis can be derived reasonably from the evidence in the Crown case (see the discussion in Wiggins v R [2020] NSWCCA 256 at [89]).
As I have said above, it is possible on the evidence of Officer Bryant that the fire was accidentally or negligently lit. In a circumstantial case, I must look at all of the evidence and not consider the evidence in a piecemeal fashion (see the discussion in R v Baden-Clay (2016) 258 CLR 308 at [47]). This means I must consider all of the circumstances relied upon by the Crown, including the coincidence evidence, whether the defendant lied about the reason his car was recorded in the CCTV footage near the fires on the day and whether, if he lied, he displayed a consciousness of guilt. I have dealt with those matters above. It will be seen from that analysis that, in my opinion, the defendant’s car was in the vicinity of each of the fires lit that day and that he lied about why his car was recorded in the CCTV footage. I have found in so lying this showed a consciousness of guilt.
Having rejected as a lie his version that he was just going to look at the fires, I consider that the evidence of all of the similar circumstances of each of the fires lit that day, and the similar circumstances I have identified above, is such that it is improbable that it could be a coincidence that the defendant’s car was at or near the scene of those fires, or driving away from them at or about the time that they were reported to 000. That is, I find he must have lit the fires. It is not necessary for me to find exactly how he lit them, but I do need to find that he did so intentionally.
The evidence of Officer Bryant, as I have said, excluded from the possible cause of the Fire Trail Road Fire and the Smeeton Road Fire the other factors he listed, including human factors such as machinery, rail lines, campfires, cigarettes or juvenile activity. As I have observed, he still did not know if the fires were deliberately lit. However, the circumstances I have referred to above lead me to the conclusion that they were intentionally lit.
In closing address, Mr Pierce submitted (T 535.46 - 537.1) that if I found the defendant lit the fires, there was evidence that he smoked in his RAV4 (but not in his new car which replaced it). He submitted in this case it was a possible inference that the defendant had visited the areas and threw a cigarette out of the window of his car, thus accidently lighting each of the fires. That last matter is important. The submission was not made that he might have accidently or negligently lit the daylight fires in this manner, but all of the fires (T 536.44) and thus did not intentionally do so. I reject this submission. I find that it is so glaringly improbable that the defendant was at the scene of each of the fires, in the very short time between the lighting of the first three fires and then again of the fourth and fifth fires, and that he accidently on each occasion threw a cigarette out of his car window which lit the fires. I do not regard that inference as a reasonable or rational one from the evidence.
In my opinion, the only rational inference to draw from all of the circumstances is that the defendant intentionally lit the Fire Trail Road Fire. There is no other rational or reasonable hypothesis consistent with the evidence in the Crown case that the Fire Trail Road Fire was accidently or negligently lit, being an hypothesis consistent with the innocence of the defendant.
Therefore, the Crown has proven beyond reasonable doubt that the Fire Trail Road Fire was deliberately lit by the defendant.

Smeeton Road Fire

As to the Smeeton Road Fire, Detective Sergeant Southall attended the area of this fire on 4 December 2019 with Officer Bryant and others. She described the nature of the terrain where the fire had been located. Again, she and Officer Bryant distributed coloured flags indicating their views as to the origin and direction of the fire. She opined that the probable area of origin of this fire was on the side of the road, just west of a speed sign, on the southern side of Smeeton Road. There was no evidence of any incendiary device to initiate the fire, however, she said that in dry grass, household refuse and leaf matter there was evidence throughout as to the likely fuel source. The fire then travelled up the raised bank and turned towards grass tussocks. The fire travelled in a south-easterly direction.
Officer Bryant effectively agreed with Sergeant Southall’s opinion as to the origin of the fire. In terms of the cause of the fire, Officer Bryant formed the view that it was suspicious. He formed the view by reason of the elimination of other causes and also that the two fires ignited close to the same time and near to each other. He excluded the Smeeton Road Fire as being a spot fire from the Fire Trail Road Fire (T 409.10).
His evidence about whether the fire was deliberately lit, that I have referred to above with respect to the Fire Trail Road Fire, also applies to the Smeeton Road Fire. For the same reasons I have given above in respect of the Fire Trail Road Fire, I conclude beyond reasonable doubt on the evidence before me that the Smeeton Road Fire was deliberately lit by the defendant.
I should say that I make those findings despite the evidence as to the timing of the CCTV footage and the reports to 000 by Mr Fenech of the Smeeton Road Fire being so close in time. There is a 45 second gap between the CCTV footage of the defendant’s car at 148 Tadmore Road at 14:33:49 and the reporting of the Smeeton Road Fire by Mr Fenech at 14:34:34. The fire was approximately one kilometre away from the CCTV location.
I have also had regard to the evidence of Mr Fenech with respect to his observations of the car that he saw which passed him on Jolly Street before Fire Trail Road. Whilst the time was short for the defendant to have passed the CCTV at Tadmore Road, driven to Smeeton Road and lit the fire and then driven away past Mr Fenech before he saw and reported the fire, I note that Mr Fenech said the car he observed, which must have been the defendant’s car, was travelling “pretty quickly”.
Having regard to all the evidence and the circumstances I have referred to, and my conclusion with respect to the defendant’s lies about his car being in the area, these matters do not raise reasonable doubt in my mind as to whether it was the defendant who lit the Smeeton Road or Fire Trail Road fires or that he did so intentionally.

Wingara Glen Fire

Detective Sergeant Southall attended the Wingara Glen Fire on 4 December 2019. She described the terrain at which the fire had burnt. She noted that the Castlereagh quarry sat behind bushland affected by the fire. The fire was in general bushland along the western side of the road about 100 metres south from the intersection with Wilshire Road. There had been some spot fires which crossed the road from the eastern side. The main fire on the western side was approximately 15 metres by 10-15 metres but did not pass through the fence and affect the quarry land. She opined that the likely area of origin of the fire was a recessed area between the roadway and the boundary to Castlereagh Quarry.
Officer Bryant did not give any evidence of the origin or cause of the Wingara Glen Fire. There is thus no evidence of the cause of this fire. The Crown asked the Court to infer that it was deliberately lit by the defendant. It relies on the whole of the evidence placing the defendant at or about the scene of the Wingara Glen Fire that I have referred to above, and the coincidence reasoning I have referred to. That is, the similarity in the circumstances identified between the Wingara Glen Fire and the Smeeton Road Fire and the Fire Trail Road Fires (the last two of which I have now found were deliberately lit by the defendant) mean that it is improbable that it was a coincidence that the Wingara Glen Fire was caused by natural causes or lit by anyone else other than the defendant.
I conclude that the fire was deliberately lit. In making this finding I rely on the coincidence evidence and the fact that it was highly improbable that this fire, close in time and location to the Smeeton Road Fire and the Fire Trail Road fires, which had been deliberately lit by the defendant, was accidently lit or lit by anyone else. I also include in my reasoning the fact the defendant was in his car in the area of the fire proximate to when it was reported and his lies in explaining why his car was in the area on the day, which as I have said, display a consciousness of guilt. I find that the defendant intentionally caused this fire.

Racecourse Road Fire

There is no expert evidence as to whether the Racecourse Road Fire was deliberately lit. Indeed, there is no expert evidence as to how it was lit at all.
There is evidence from Mr Robert Duffy, who has been an RFS firefighter for many years, and who reported the fire to 000, that he thought it was deliberately lit. That opinion was based on his view that “there was nothing to cause it to start at that time of night”, for example, no powerlines. He said the powerlines were on the left side of the road (T 38.35). In cross-examination he accepted that he did not know whether the fire was lit by someone in a car or on foot (T 39.27). He discarded the possibility that it could have been caused by a cigarette being thrown from a car as he said the cigarette would not have “got that far in” to where the fire was from the road (T 39.35 – 40.14). His evidence was not objected to and although it’s not relied upon by the Crown as expert evidence, I am entitled to take it into account. I do so and give it weight, having regard to Mr Duffy’s experience as a firefighter. His evidence was that it must have been deliberately lit, as there was nothing else to cause it to light that night, and I accept that evidence.
The Crown does not point to any other evidence as to how this fire started. It asks me to infer from all of the circumstances it relies upon, including the coincidence reasoning and the defendant’s lies as to why his car was captured on the CCTV footage, that the fire was deliberately lit and lit by the defendant. I remind myself of the onus of proof on the Crown. It is an element of the offence that the fire was intentionally lit by the defendant.
There is evidence of the defendant in his car being in the vicinity of the fire and recorded on the CCTV footage I have described above. He is in the immediate vicinity of the fire relatively proximate to it being reported. In my opinion, having regard to all of the other evidence including the coincidence evidence and the defendant’s lies, I conclude beyond reasonable doubt that the fire was deliberately lit and lit by the defendant.

Percival Street Fire

Again, there is no evidence as to how this fire started. There is the evidence of Ms Howard that she saw a car (which I have found is the defendant’s car) going away from the area where the fire was, but that is the extent of the evidence.
Using the same reasoning as with the Racecourse Road Fire, I find it highly improbable that this fire was accidentally lit. It was close in time and location to the Racecourse Road Fire. The defendant was seen in the area and leaving that area quickly. He had, on my other findings, deliberately lit the other fires. It is, in my view, highly improbable that these events - multiple fires on the same day in a relatively confined geographical area with no evidence of any other cause and with the defendant near to all of them in his car - were coincidental. I am left with no doubt that the fire was deliberately lit by the defendant.
I note that the evidence does not reveal how or why the defendant lit the fires. As I have said, the case against him is entirely circumstantial. It was therefore necessary for the Crown to have persuaded me beyond reasonable doubt that the only rational inference I can draw from all of the circumstances is that the defendant intentionally lit each of the fires. As I have sought to set out, no one circumstance considered alone would establish that the defendant lit the fires and intentionally did so. However, when I have regard to all of the circumstances and their combined force, I am left in no doubt that he did.

Recklessness

Having found the defendant deliberately lit each of the fires, I also find that the defendant was reckless as to their spread.
Whilst I do not know the mechanism used by the defendant to start the fires, whatever that mechanism was, after he had lit each fire, he drove away from the fires. He must have known that, or did not care whether, the fires would spread, having regard to them being started in mulch or in grass or near bush at a time when the east coast of New South Wales had already suffered significant fires. Having started each of the fires, he did nothing to contain or prevent them from spreading as they did, and he drove away, often at speed.
The Crown has satisfied me beyond reasonable doubt of this element of the offence.

Decision and Orders

Mr Andrews, please stand:

In respect of Count 1, that you on 3 December 2019 at Castlereagh in the State of New South Wales, did intentionally cause a fire and was then reckless as to the spread of that fire to vegetation on public land, namely Smeeton Road and Church Road, Castlereagh, on the limited evidence available, I find you have committed the offence charged.

In respect to Count 2, that you on 3 December 2019 at Castlereagh in the State of New South Wales, did intentionally cause a fire and was then reckless as to the spread of that fire to vegetation on public land, namely Hinxman Road and Fire Trail Road, Castlereagh, on the limited evidence available, I find you have committed the offence charged.

In respect to Count 3, that you on 3 December 2019 at Londonderry in the State of New South Wales, did intentionally cause a fire and was then reckless as to the spread of that fire to vegetation on public land, namely Wingara Glen, Londonderry, on the limited evidence available, I find you have committed the offence charged.

In respect to Count 4, that you between 2 December 2019 and 5 December 2019 at Clarendon in the State of New South Wales, did intentionally cause a fire and was then reckless as to the spread of that fire to vegetation on public land, namely Racecourse Road, Clarendon, on the limited evidence available, I find you have committed the offence charged.

In respect to Count 5, that you between 2 December 2019 and 5 December 2019 at Clarendon in the State of New South Wales, did intentionally cause a fire and was then reckless as to the spread of that fire to vegetation on public land, namely Percival Street, Clarendon, on the limited evidence available, I find you have committed the offence charged.

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Decision last updated: 15 June 2023

Medium Neutral Citation:	R v Andrews [2022] NSWDC 743
Hearing dates:	4 – 7 October 2022, 10 – 11 October 2022, 13 - 17 October 2022
Decision date:	27 October 2022
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant is found to have committed the offences charged in all 5 counts on the indictment
Catchwords:	CRIME – Principal judgment - Intentionally cause fire and be reckless as to its spread – Judge alone trial - Special hearing pursuant to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Circumstantial Crown case
Legislation Cited:	Crimes Act 1900 (NSW), ss 4A, 203E, 203D Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW), s 97 Rural Fires Act 1997 (NSW), s 100(1)(a) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 54
Cases Cited:	De Silva v The Queen [2019] HCA 48 Elomar v The Queen (2014) 316 ALR 206 Liberato v The Queen (1995) 159 CLR 507 R v Baden-Clay (2016) 258 CLR 308 R v Kinsela [2003] NSWCCA 92 Shepherd v The Queen (1990) 170 CLR 573 Townsend v The King [2022] VSCA 201 Wiggins v R [2020] NSWCCA 256
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Shane Andrews (Defendant)
Representation:	Counsel: Ms C Dobraszczyk (Crown) Mr B Pierce (Defendant)
File Number(s):	2020/00304121
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the assumed identity of the undercover operative, or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness.