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R v Colquhoun

R v Colquhoun

Case [2023] NSWDC 664 4 October 2023

Admissibility of Evidence

Expert Evidence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Colquhoun [2023] NSWDC 664
Hearing dates: 13, 14, 15, 16, 19, 20, 21, 22 & 23 June 2023
Date of orders: 4 October 2023
Decision date: 04 October 2023
Jurisdiction: Criminal
Before: O’Brien AM DCJ
Decision:
See paragraph 307

Catchwords:
Judge alone trial – one count of dishonestly destroyed by means of fire to make a financial gain – one count of attempt to obtain a financial advantage by deception – seven counts of obtaining a financial advantage by deception – one count of dealing with the proceeds of crime
2019/2020 Black summer bush fires – accused deliberately set fire to his house and claimed insurance which was paid – subsequent multiple dishonest claims upon charities and government agencies.
Elements of offences – circumstantial evidence – competing expert opinion as to the cause of the house fire – competing expert evidence as to the accused’s state of mind at the time of the offending – evidence of the accused and adverse findings as to his credit – lies as consciousness of guilt – lies going only to credit.
Failure of the Crown to establish the full quantum of the proceeds of crime count.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act1995 (NSW)

Cases Cited:
Chamberlain v R [No.2] [1984] HCA 7; (1984) 153 CLR 521
De Silva v The Queen (2019) 268 CLR 57
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Fox v Percy (2003) 214 CLR 118
Jones v Hyde (1989) HCA 20; 63 ALJR 349
Liberato v The Queen (1985) 159 CLR 507
R v Baden Clay (2016) 258 CLR 308
R v Dawson [2022] NSWSC 1131
R v Glenister [1980] 2 NSWLR 597
R v Lazarus [2017] NSWCCA 279
R v Micallef (2002) 136 A Crim R 127
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588.

Category: Principal judgment
Parties: Office of the Director of Public Prosecutions (NSW) Darren Mark Colquhoun (accused)
Representation: Counsel:
Ms N Keay and Mr A Tonks (Crown)
Mr T Hughes (accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Mr D Leamey (accused)

File Number(s): 2021/00153768

Judgment

Introduction

Darren Mark Colquhoun (the accused) was arraigned before me on 13 June 2023 in the District Court at Wollongong. At that time, he entered pleas of not guilty to 10 counts on an indictment in the following terms:

Count 1 - that on 5 January 2020 at Barringella in the state of New South Wales he dishonestly destroyed by means of fire his house situated at 1012 Yalwal Rd, Barringella with a view to making a financial gain.

Count 2 - that between 5 January 2020 and 30 June 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $60,000 from the Australian Red Cross.

Count 3

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Colquhoun

Details

AGLC: R v Colquhoun [2023] NSWDC 664
Case: [2023] NSWDC 664
Decision Date: 04 October 2023

CaseChat Overview and Summary

In the case of R v Colquhoun, the accused was found guilty by a judge alone of one count of dishonestly destroying property by means of fire to make a financial gain, one count of attempting to obtain a financial advantage by deception, and seven counts of obtaining a financial advantage by deception. The facts of the case involve the accused deliberately setting fire to his house during the 2019/2020 Black Summer bushfires and subsequently making multiple dishonest claims upon charities and government agencies. The court had to determine whether the accused had committed these offences and whether the Crown had established the full quantum of the proceeds of crime.

The legal issues in this case included the elements of the offences, the use of circumstantial evidence, and the interpretation of competing expert opinions. The court had to consider the evidence of the accused and the findings of fact made by the trial judge. The accused claimed that the fire was not started by him but was a result of the bushfires, and there were competing expert opinions on both the cause of the fire and the accused's state of mind at the time of the offending. The court had to weigh the evidence and expert opinions and determine whether the Crown had established the accused's guilt beyond reasonable doubt.

The court found that the Crown had established the accused's guilt beyond reasonable doubt on all counts except for the proceeds of crime count. The trial judge found that the Crown had failed to establish the full quantum of the proceeds of crime, which was an essential element of that offence. The court held that the evidence and expert opinions supported the trial judge's findings, and the accused's lies went only to credit and not to consciousness of guilt. The court also found that the evidence of the accused and adverse findings as to his credit supported the trial judge's findings of fact.

The court ordered that the accused be convicted of one count of dishonestly destroying property by means of fire to make a financial gain, one count of attempting to obtain a financial advantage by deception, and seven counts of obtaining a financial advantage by deception. The court did not convict the accused of the proceeds of crime count due to the failure of the Crown to establish the full quantum of the proceeds of crime. The court ordered that the accused be sentenced on the counts on which he was convicted.

Orders

Orders of the court

See paragraph 307

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Colquhoun [2023] NSWDC 664

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Dawson [2022] NSWSC 1131
Citation 1

…es v Hyde (1989) HCA 20; 63 ALJR 349 Liberato v The Queen (1985) 159 CLR 507 R v Baden Clay (2016) 258 CLR 308 R v Dawson [2022] NSWSC 1131 R v Glenister [1980] 2 NSWLR 597 R v Lazarus [2017] NSWCCA 279 R v Micallef (2002) 136 A Crim R 127 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (19…
De Silva v The Queen [2019] HCA 48
Citation 2 (Para 67)

…on will remain; has the Crown, upon the basis of the evidence I do accept, proved the accused’s guilt beyond reasonable doubt: De Silva v The Queen (2019) 268 CLR 57 at [12].…
Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8
Citation 3 (Para 36)

…other hand means an alteration to the physical integrity of the item damaged, in this case, the accused’s house: Grajewski v DPP(NSW) (2019) 264 CLR 470 at [53]. The alteration to the physical integrity of the item damaged may be relatively minor and temporary. There is no issue in this trial that the accused’s house…
R v Lazarus [2017] NSWCCA 279
Citation 4 (Para 6)

…In R v Lazarus [2017] NSWCCA 279 at [141] the Court of Criminal Appeal observed (with citations omitted): “ A Judge who tries criminal proceedings without a jury is not required to express all of the matters which would necessarily have to be stated to a jury unfamiliar with basic principles of law. However, s.133 (…
R v Baden-Clay [2016] HCA 35
Citation 5 (Para 55)

…As observed by the High Court in R v Baden Clay (2016) 258 CLR 308 at [46],…
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Citation 6

…ilva v The Queen (2019) 268 CLR 57 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Fox v Percy (2003) 214 CLR 118 Jones v Hyde (1989) HCA 20; 63 ALJR 349 Liberato v The Queen (1985) 159 CLR 507 R v Baden Clay (2016) 258 CLR 308 R v Dawson [2022] NSWSC 1131 R v…
Fox v Percy [2003] HCA 22
Citation 7 (Para 20)

…also keep in mind the danger of “drawing conclusions about truthfulness and reliability solely or mainly” from how a witness appears: Fox v Percy (2003) 214 CLR 118 at [30]- [31].…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3
Citation 8

…NSWCCA 279 R v Micallef (2002) 136 A Crim R 127 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588. Category: Principal judgment Parties: Office of the Director of Public Prosecutions (NSW) Darren Mark Colquhoun (accused) Representation: Counsel: Ms N Keay and Mr A Tonks (Cro…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1996] NSWCA 494
Citation 9

…son [2022] NSWSC 1131 R v Glenister [1980] 2 NSWLR 597 R v Lazarus [2017] NSWCCA 279 R v Micallef (2002) 136 A Crim R 127 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588. Category: Principal judgment Parties: Office of the Director of Public Prosecutions (NSW) Darren Mark Colquhoun (accused) Representation: Counsel: Ms N Keay and Mr…
Jones v Hyde [1989] HCA 20
Citation 10

…n and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Fox v Percy (2003) 214 CLR 118 Jones v Hyde (1989) HCA 20; 63 ALJR 349 Liberato v The Queen (1985) 159 CLR 507 R v Baden Clay (2016) 258 CLR 308 R v Dawson [2022] NSWSC 1131 R v Glenister [1980] 2 NSWLR 597 R v Lazarus [2017] NSWCCA 279 R v Micalle…
Liberato v The Queen [1985] HCA 66
Citation 11 (Para 65)

…o not positively believe his version, I cannot find against him contrary to that version if it gives rise to a reasonable doubt: Liberato v The Queen (1985) 159 CLR 507.…
Chamberlain v The Queen (No 2) [1984] HCA 7
Citation 12 (Para 62)

…the facts that I find established by the evidence and must exclude all reasonable hypotheses consistent with his innocence: Chamberlain v R [No.2] [1984] HCA 7; (1984) 153 CLR 521 at 536 per Gibbs CJ and Mason J; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at 323-325.…
Barca v the Queen [1975] HCA 42
Citation 13

…“The principles concerning cases that turn upon circumstantial evidence are well-settled. In Barca v The Queen(1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said: If the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circum…
Plomp v The Queen [1963] HCA 44
Citation 14

…hould be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v The Queen (1963) 110 CLR 234 at 252”.…
Peacock v The King [1911] HCA 66
Citation 15

…ilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a ration…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 2)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 5)
Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Colquhoun [2023] NSWDC 664
Hearing dates:	13, 14, 15, 16, 19, 20, 21, 22 & 23 June 2023
Date of orders:	4 October 2023
Decision date:	04 October 2023
Jurisdiction:	Criminal
Before:	O’Brien AM DCJ
Decision:	See paragraph 307
Catchwords:	Judge alone trial – one count of dishonestly destroyed by means of fire to make a financial gain – one count of attempt to obtain a financial advantage by deception – seven counts of obtaining a financial advantage by deception – one count of dealing with the proceeds of crime 2019/2020 Black summer bush fires – accused deliberately set fire to his house and claimed insurance which was paid – subsequent multiple dishonest claims upon charities and government agencies. Elements of offences – circumstantial evidence – competing expert opinion as to the cause of the house fire – competing expert evidence as to the accused’s state of mind at the time of the offending – evidence of the accused and adverse findings as to his credit – lies as consciousness of guilt – lies going only to credit. Failure of the Crown to establish the full quantum of the proceeds of crime count.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act1995 (NSW)
Cases Cited:	Chamberlain v R [No.2] [1984] HCA 7; (1984) 153 CLR 521 De Silva v The Queen (2019) 268 CLR 57 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Fox v Percy (2003) 214 CLR 118 Jones v Hyde (1989) HCA 20; 63 ALJR 349 Liberato v The Queen (1985) 159 CLR 507 R v Baden Clay (2016) 258 CLR 308 R v Dawson [2022] NSWSC 1131 R v Glenister [1980] 2 NSWLR 597 R v Lazarus [2017] NSWCCA 279 R v Micallef (2002) 136 A Crim R 127 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588.
Category:	Principal judgment
Parties:	Office of the Director of Public Prosecutions (NSW) Darren Mark Colquhoun (accused)
Representation:	Counsel: Ms N Keay and Mr A Tonks (Crown) Mr T Hughes (accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Mr D Leamey (accused)
File Number(s):	2021/00153768