R v Colquhoun

Case •

[2023] NSWDC 664

•

04 October 2023

No judgment structure available for this case.

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

  1. 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 - that between 6 February 2020 and 28 February 2020 at Barringella in the state of New South Wales he did attempt by deception to dishonestly obtain a financial advantage from NSW Government Disaster Welfare Services.

Count 4 - that between 24 January 2020 and 12 February 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $3,000 from St Vincent De Paul.

Count 5 - that between 10 February 2020 and 27 February 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $75,000 from the Rural Assistance Authority.

Count 6 - that between 25 February 2020 and 16 June 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $3,500 from the Salvation Army.

Count 7- that between 4 June 2020 and 16 June 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $8,000 from the Salvation Army.

Count 8 - that between 21 April 2020 and 13 August 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $15,000 from Local Land Services.

Count 9 - that between 20 September 2020 and 2 October 2020 at Barringella in the state of New South Wales he did by deception dishonestly obtain a financial advantage, namely $50,000 from Services NSW.

Count 10 - that between 3 February 2020 and 19 March 2021 at Barringella in the state of New South Wales he did deal with the proceeds of crime namely $427,200, knowing it was the proceeds of crime.

  1. Count 1 is an offence contrary to s 197 (1)(b) of the Crimes Act 1900. Counts 2, 4, 5, 6, 7, 8 and 9 are contrary to s 192E (1)(b) of the Crimes Act 1900. Count 3 is contrary to ss 192E (1)(b) and 344A (1) of the Crimes Act 1900. Count 10 is contrary to s 193B (2) of the Crimes Act 1900.

  2. The trial proceeded before me without a jury between 13 and 28 June 2023. Throughout Ms Keay and Mr Tonks appeared for the Crown and Mr Hughes for the accused. Following the completion of the evidence it was necessary for me to immediately commence an historic child sexual assault trial, after which I went on leave. As a result I adjourned the trial for oral submissions in Sydney on 1 August 2023 and directed the parties to provide written submissions and fixed a timetable. The Crown’s submissions were provided in accordance with my timetable however the accused’s were not. Following the receipt of an email from Mr Hughes outlining some personal difficulties he was experiencing, I provided him an extension for his written submissions. That extension was with the consent of the Crown. Shortly before doing so I was advised that 1 August 2023 was no longer a date suitable to the Crown, and it was necessary for the taking of oral submissions to be delayed until 14 September 2023. The written submissions for the accused were received on 8 September 2023. Following the taking of oral submissions I invited the parties to provide me with further written submissions in respect of count 10 and they did so. All the submissions of the parties have been considered.

  3. I accept that the delay experienced in the finalisation of this trial is less than ideal, particularly where a judge alone trial ought to mirror as far as possible, the procedure adopted in a trial by jury. That having been noted, I wish to make clear to the parties, that much of this judgment was written during and immediately after the trial, when the evidence was still very fresh in my memory. Obviously, no conclusion in respect of any issue in the trial was reached until I heard the parties’ oral submissions on 14 September 2023 following which I reserved my decision until today.

  4. Section 133 of the Criminal Procedure Act 1986 is in the following terms:

133. Verdict of single Judge

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.

(2) 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.

(3) 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.

  1. 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 (2) requires that the trial judge expose his or her reasoning process by linking the relevant principles of law to the facts as he or she finds them to be.”

  2. While each of the counts on the indictment have been tried together as a matter of convenience and because they have some common features and an underlying factual matrix, it is necessary for me to consider each count separately and to return a separate verdict for each. I must not and will not be prejudiced against the accused because he is facing more than one charge.

What the trial is about

  1. From the end of November 2019 until January 2020 south-eastern Australia and particularly the south coast of New South Wales experienced devastating bushfires which became known as the black summer bushfires. The main bushfire impacting the south coast of New South Wales was the Currowan fire. It commenced on 26 November 2019 between Batemans Bay and Braidwood and effected many areas including the Shoalhaven region. Barringella is located approximately 11 km to the south-west of Nowra. There the accused owns a 110-acre rural property backing onto the southern side of the Shoalhaven River called “Calymea”. At the relevant time it consisted of a three-bedroom house, two large sheds approximately 50 -100 m north-west of the house, livestock paddocks, cattle yards, and several cabins located on the shore of the river which were apparently rented by members of the public.

  2. To the south of the property, that is, on the opposite side of the road, is a steep escarpment and bushland. It is the Crown case that in the days before 5 January 2020 the New South Wales Rural Fire Service (RFS) conducted hazard reduction burns in this area. It alleges these controlled burns did not threaten the accused’s property, and that by 4 January the majority of this bushland had been burnt out.

  3. It is not in dispute that at shortly after 5:21 AM on 5 January the accused made a 000 call from his house. In that call he said he had woken in his bedroom, observed black smoke and discovered his house was alight. At 5:36 AM the accused made a second call for assistance. I will later set out in detail what the accused said during these calls and what he said occurred during the 15-minute period between them. At 5:43 AM New South Wales Fire and Rescue arrived at the property and found the house fully engulfed in fire. The fire was eventually extinguished at approximately 8:30 AM, however the house was destroyed. It is not a matter of dispute that at the time of the fire the accused was the only person present in the house.

  4. Police commenced investigations. These included forensic officers attending the scene on 5 January and photographing the damage to the house. It is not a matter of dispute that there was no subsequent forensic examination of any of the material remaining after the fire which inculpated the accused. Police enquiries included an interview between them and the accused on 6 January, during which he provided a detailed statement concerning the fire, and the events preceding and following it. I will come to the contents of this statement shortly. Amongst other things, the accused told police he believed the fire was started by an ember from the bushfires penetrating the roof space of the house.

  5. Shortly after the fire the accused made an insurance claim with NRMA. He said his house had been destroyed by bushfire. Within a short period the claim was accepted by his insurer, and he was paid the sum of $376,100. Thereafter over a period of some months, the accused made a series of claims for various payments/grants from both government instrumentalities/agencies and charitable organisations. These were mostly but not all, made upon the basis that his house had been destroyed by bushfire. Some grants had other criteria which the accused said he met. In total the accused received $215,500 pursuant to these claims.

  6. The Crown asserts the fire at the accused’s house was deliberately lit by him, and that in doing so he dishonestly sought to make a financial gain by his subsequent insurance claim with the NRMA. This allegation forms the basis of count 1.

  7. The Crown also asserts that his conduct in thereafter obtaining funds via grants from government agencies and charitable organisations was dishonest. It says those payments were made upon the basis he satisfied prescribed criteria, including but not being limited to his house having been destroyed or damaged because of the bushfires. It is the Crown case that the accused did not satisfy the various prescribed criteria for a variety of reasons, including that his property had not been destroyed by bushfire, but by his own conduct. The allegations in relation to this subsequent conduct form the basis of counts 2 to 9.

  8. The accused denies what the Crown asserts. As I have earlier noted, he says the house fire was caused by an ember or embers entering the roof space of the house. He says further that he did not act dishonestly in making claims for grants and that he was entitled to each amount of money he received.

  9. The principal issue in the trial is whether I can be satisfied beyond reasonable doubt that the accused set fire to his house as the Crown alleges, or whether it is reasonably possible the fire commenced by another mechanism. As to this, the accused suggests in broad terms, the cause of the fire was either:

  1. the collapse of a pryrocumulonimbus cloud on the evening before the fire and the subsequent long-distance dispersion of embers which settled inside the roof space, smouldered and then ignited; or

  2. general ember attack most likely emanating from the escarpment to the south of his house.

  1. If I am satisfied beyond reasonable doubt of what the Crown asserts to be the cause of the fire, then criminal liability would attach to the accused in respect of counts 1, 2, 3, 4, 6, 7 and potentially 9. I say that liability would potentially attach to him for count 9, because the criteria for the grant it relates to is only partly dependent on the house fire. Counts 5 and 8 are in a different category, as the criteria for the grants to which they relate are based upon affectation by bushfires more generally, rather than damage to the accused’s house. The count 9 grant is also partly referrable to this more general affectation.

  2. If I am not so satisfied beyond reasonable doubt as to what the Crown says was the cause of the fire, then the accused would be not guilty of count 1. I would then be left to consider separately, whether the Crown has proved beyond reasonable doubt its case against him in respect of counts 2 to 9. In that event it will be necessary for me to determine whether, absent a finding the accused deliberately burnt down his house, the Crown has proved beyond reasonable doubt that he is nonetheless criminally liable. In broad terms, the question for me will be, “Am I satisfied beyond reasonable doubt that the accused, dishonestly by deception obtained funds to which he was not entitled, because he did not meet the criteria attaching to the grants the subject of counts 2 to 9?”

  3. Count 10, is an allegation of dealing with the proceeds of crime and concerns the possession by the accused of cash in an agreed amount of $427,200. This sum was located at his property by police on 19 March 2021, more than 14 months after the fire, and following the execution of a search warrant. The Crown alleges this sum represents part of the money he fraudulently received from his insurer and various government agencies and charities. The accused denies this.

General directions/onus and standard of proof

  1. Before I undertake a review and assessment of the evidence in the trial and the elements of the offences, it is important I remind myself of several general directions. These are directions I would have provided to a jury if this matter had proceeded to trial in that way.

  2. The first and most important direction in any criminal trial concerns the onus and standard of proof. The burden of proof of the guilt of the accused is placed squarely on the Crown. It rests upon it in respect of each element that makes up each count the accused faces from the commencement of the trial until its conclusion. The burden never shifts to him. It is not for him to prove or do anything. It is not for him to prove his innocence, but rather for the Crown to establish his guilt and to do so beyond reasonable doubt. I remind myself that the accused retains the presumption of innocence unless and until I am satisfied the Crown has proved beyond reasonable doubt all the elements that make up the count on the indictment I am considering. It is not for the Crown to prove beyond reasonable doubt every single fact arising from the evidence, but rather to prove beyond reasonable doubt the elements of each charge. Proof beyond reasonable doubt is the very high standard of proof the Crown must achieve before I can convict the accused of any count on the indictment.

  3. I remind myself that the expression “proof beyond reasonable doubt” is one that has been deeply ingrained in the criminal law of this state for a very long time. The words carry their ordinary English meaning. There is no mystery to them. It is the highest standard of proof known to the law and can be compared with the lower standard of proof required in civil cases where matters need only be proved on the balance of probabilities. The test in a criminal case is not whether an accused is probably guilty. In a criminal trial the Crown must prove the accused’s guilt beyond reasonable doubt. Obviously, suspicion or even grave suspicion falls a long way below that standard, as does a conclusion the accused may have committed the offence or offences charged, or even that it is more likely than not that he did. Should I finally reach such a conclusion in respect of any count on the indictment, then it would not amount to proof beyond reasonable doubt and the accused would be acquitted of that count.

  4. In a criminal trial, there is only one ultimate issue in respect of each count on the indictment. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “Yes” the appropriate verdict is “Guilty”. If the answer is “No” the appropriate verdict must be “Not Guilty”.

  5. I remind myself that I must not be prejudiced against the accused because he is facing more than one charge. He is to be treated as being not guilty of any offence, unless and until he is proved guilty by my evaluation of the evidence and application of the law. I must consider each count separately and return a separate verdict for each. Considering the individual counts on the indictment means I am entitled to bring in a verdict of guilty on one count and a verdict of not guilty on another if there is a logical reason for that outcome.

  6. Speculation must play no part in my deliberations. My task is to determine whether I am satisfied beyond reasonable doubt that the Crown has proved the guilt of the accused based solely upon the evidence given in this court, the documents tendered, and the submissions made to me. As is the case for any tribunal of fact, I am expected to use my life experience, my capacity to reason and my common sense in determining whether the Crown has discharged the heavy onus which rests upon it.

  7. As the tribunal of fact, it is necessary for me to assess each of the witnesses who have given evidence in the trial. In doing so, I will consider what each witness said and the way in which he or she said it. I will also bear in mind the general impression the witnesses made upon me at the time they gave evidence. I note that I am not obliged to accept the whole of the evidence of any one witness and I may, if I think fit, accept part and reject part of the same witness’s evidence. The fact I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’s evidence.

  8. In undertaking my assessment of the witnesses, the ultimate issue I must decide is whether I consider their evidence to be sufficiently reliable to act upon it.

  9. Reliability depends upon two quite different but overlapping factors. One is the witness’s honesty and the other is the witness’s accuracy. In determining whether I consider a witness to be reliable I will consider the demeanour of the witness and the impression he or she made upon me. Did the witness impress me as someone doing their best to be truthful or did the witness impress me as someone seeking to deceive me? Was the witness evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked, particularly in cross-examination? Did the witness strike me as impartial, or did I form the view that the witness had an axe to grind that was colouring the evidence given? How important were the surrounding details of an incident or event such that the witness focused on committing to memory all aspects of the event as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident?

  1. I remind myself that making decisions about the facts is not a complicated technical process; it is a matter of applying my common sense and considering both what the witness said and the way in which he or she said it. In assessing the evidence of witnesses I will 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].

  2. The task I must engage in is a rational and logical one, rather than an emotional one and I will not let sympathy or emotion sway my judgment. I must and will be fair and objective. I acknowledge that I have very important matters to decide in this case – important not only to the accused but also to the whole community. I am required to and will act impartially and dispassionately.

Inferences

  1. I may, in my role as the judge of the facts in this trial, draw inferences from both the direct evidence and the circumstantial evidence. I will direct myself more fully concerning circumstantial evidence shortly. I note there is nothing extraordinary about drawing inferences. We all do it whether consciously or otherwise in our everyday lives. However, as I must be satisfied of the guilt of the accused beyond reasonable doubt before I can return a verdict of guilty on any count, I must be extremely careful about drawing inferences. I should examine any possible inference to ensure that it is a justifiable inference. I may only draw an inference from the direct or circumstantial evidence if it is the only rational inference available in the circumstances.

The elements of the offences

  1. In any criminal trial it is for the Crown to prove beyond reasonable doubt each element of each count it brings against an accused person. If it fails to do so, then the accused is not guilty of that count. I will now identify the elements of each of the counts on the indictment and direct myself as to the legal meaning of them.

  2. The elements of count 1 which the Crown must prove beyond reasonable doubt are that at the time and place alleged, the accused:

  1. dishonestly,

  2. with a view to making a gain for himself or another,

  3. destroyed or damaged property by means of fire.

  1. I direct myself in respect of element 1, that to have acted dishonestly, the accused must have known what he was doing was dishonest, according to the standards of ordinary people (s 4B Crimes Act 1900). To act dishonestly, a person must have an intention to act fraudulently (R v Glenister [1980] 2 NSWLR 597). Intention is an ordinary English word and should be given its ordinary English meaning. Intention may be inferred or deduced from the circumstances in which an act occurs and from the conduct of an accused person before, at the time of or after a specific act. Whatever a person says about his or her intention may be considered for the purpose of finding out what that intention was at the relevant time. In some cases a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act and where he or she deliberately does that act, a tribunal of fact may readily conclude that he or she did that act with the intention of achieving that specific result. A person intends to act fraudulently if they mean to do so. In the absence of such an intention an accused person cannot be said to have acted dishonestly.

  2. In respect of element 2, I direct myself that the word “gain” is to be given a wide interpretation and extends beyond mere profit. It would include setting fire to a property to obtain money by a fraudulent insurance claim.

  3. In respect of element 3, I direct myself that the words “destroy or damage by fire” should be given their ordinary English meaning. The Macquarie Dictionary defines “destroy” to mean: “1. To reduce to pieces or to useless form; ruin; spoil; demolish. 2. To put an end to; extinguish. 3. To kill; slay. 4. To render ineffective; nullify; invalidate.” The term carries with it the implication, in the circumstances of this trial, that the accused’s house was completely obliterated and rendered incapable of repair. Damage on the 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 was rendered incapable of repair as a result of the fire which occurred on 5 January 2020.

  4. The elements of counts 2 ,4, 5, 6, 7, 8 and 9 are identical. In each of these counts the Crown must prove beyond reasonable doubt that at the time and place alleged, the accused:

  1. by any deception,

  2. dishonestly,

  3. obtained a financial advantage.

  1. A deception involves an intentional act of deceiving. That is, engaging in words or conduct which mislead someone. It includes a deception as to the intention of the person deceiving and it does not matter that the person deceived is not person from whom the money is obtained. It is essential that the cause of the financial advantage obtained by the accused is the deception used by him, and there must be sufficient connection between the deception and the obtaining. The deception must be an operative cause of the obtaining. The deceptions the Crown alleges the accused perpetrated were that he represented his house had been destroyed or damaged by bushfire and that he was otherwise eligible for payments and grants he applied for and obtained. Different counts on the indictment have different payment eligibility criteria and the Crown says the accused did not satisfy those criteria. It must prove beyond reasonable doubt that the financial advantage was obtained because of his deception, and that the accused perpetrated that deception intentionally to obtain the financial advantage or acted recklessly in that regard. Here reckless means foreseeing the possibility that because of the deception he would obtain a financial advantage and carrying on with the deception notwithstanding that possibility.

  2. Dishonesty has the same meaning in respect of these counts as I directed myself in respect of count 1. That is, the Crown must prove beyond reasonable doubt that the accused intentionally acted dishonestly according to the standards of ordinary people. It is for me to determine what are those standards in our community. I must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving the various alleged victims but also that he knew his conduct was dishonest according to those standards.

  3. The words “obtaining a financial advantage” should be given their ordinary English meaning and ought not be narrowly construed. There must be a causal connection between the financial advantage obtained and the deception practised by the accused. In this trial the Crown contends that the financial advantage is the various sums of money particularised in each count on the indictment. As to this, I note counts 5 and 9 involve allegations that the accused’s fraud was not confined to a single sum of money but included various sums which in total comprise the amount averred to in the indictment. Relevantly, the offence can involve all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money obtained over a period of time, provided of course those particular sums of money are proved beyond reasonable doubt.

  4. Count 3 alleges that the accused attempted by deception to dishonestly obtain a financial advantage. The elements of this count which the Crown must prove beyond reasonable doubt are that at the time and place alleged, the accused:

  1. attempted,

  2. by deception,

  3. to dishonestly,

  4. obtain a financial advantage.

  1. The directions I have given myself in respect of the elements of “deception”, “dishonesty” and “obtaining a financial advantage” have equal application to my consideration of count 3.

  2. It is necessary for me to direct myself concerning the element of “attempt” in considering this count. To prove that the accused is guilty of an attempt to commit the offence of by deception dishonestly obtaining a financial advantage, the Crown must first prove beyond reasonable doubt that the accused intended to commit the crime the Crown alleges he attempted. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted, in circumstances which make those acts criminal.

  3. Next, the Crown must prove beyond reasonable doubt that the accused, with that intention, did some act or acts toward committing the intended crime which was or were immediately connected with the commission of the crime, and which cannot have any other reasonable purpose other than the commission of the crime.

  4. Accordingly, if I am satisfied beyond reasonable doubt the accused intended to commit the crime alleged, he is not guilty of the crime of attempt unless he did with that intention commit an act or acts that are more than mere preparation to commit the crime. He must have actually embarked upon the commission of the crime he intends to commit. If I find beyond reasonable doubt that the accused had the required intention and committed acts with that intention, I must then determine whether the acts I find the accused committed were merely preparatory acts toward committing the crime. If I form the view that they were preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, then I may find him guilty of the charge of attempt.

  5. The elements of count 10 the Crown must prove beyond reasonable doubt are that at the time and place alleged, the accused:

  1. dealt with property,

  2. which was the proceeds of crime,

  3. knowing it was the proceeds of crime.

  1. Relevantly for the purpose of this trial, an accused person deals with property if they possess it. The essence of the concept of possession in law is that, at the relevant time, the accused intentionally had control over the property in question. He may have this control alone or jointly with some other person or persons and must have the right to exclude other people from it. If these conditions are fulfilled, then the accused may be said to have possession of that object, whether it is in his sole possession or whether it is a joint possession with somebody else. Here, there is no issue that the accused was in sole possession of the subject property.

  2. I direct myself that the term “proceeds of crime” means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. A “serious offence” means, for the purpose of this trial, an offence against the laws of New South Wales that may be prosecuted on indictment.

  3. The final element the Crown must prove is that the accused actually knew at the time he possessed the property that it was the proceeds of crime. It is the accused’s actual knowledge or belief which must be proved by the Crown, and not simply what some person in the accused’s position may have known or believed. However, I may infer or conclude what the accused knew or believed from considering all the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on speculation or suspicion. Any inference or conclusion I draw about the accused’s knowledge or belief must be the only rational inference or conclusion open on the evidence. However, I stress what I am concerned with is whether I am satisfied beyond reasonable doubt the accused had this knowledge or belief at the relevant time.

Directions specific to this trial

Circumstantial evidence regarding count 1

  1. As the Crown has fairly conceded, its case in respect of count 1 is entirely circumstantial. There are no admissions by the accused, nor is there any direct evidence of his involvement in the crime he allegedly committed. That being so it is necessary I give myself a circumstantial evidence direction. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts, draw a conclusion as to the existence of further facts. The ultimate fact the Crown asks me to find is that the accused dishonestly and with a view to defrauding his insurer set fire to his house at Barringella.

  2. I remind myself that circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw, heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing a crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it can prove the guilt of the accused.

  3. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.

  4. In a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown’s case depends on circumstantial evidence, the trier of fact is asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed.

  5. 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 will depend upon whether all the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.

  6. As observed by the High Court in R v Baden Clay (2016) 258 CLR 308 at [46],

“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 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 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”.

  1. In Baden Clay the High Court further observed at [47]:

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The King at 661 (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’: R v Hillier (2007) 228 CLR 618 at 637 (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal: R v Hillier at 638, see also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.”

  1. It is critical I approach the circumstantial case in count 1 by considering and weighing as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask myself whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt, and I will not do so. It is not the individual circumstances that need to be considered but the totality of the circumstances taken together in determining whether I can draw an inference of the accused’s guilt, where none of those circumstances viewed alone would support such an inference.

  2. The correct approach, and the one I will adopt, is firstly to determine what facts I find established by the evidence. Once I have determined those facts, I will then consider all of them together and ask whether I can conclude from them that the accused is guilty of count 1. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I will not be satisfied of the accused’s guilt beyond reasonable doubt.

  3. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then before I can convict the accused, 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. I must be satisfied beyond reasonable doubt that “in the ordinary course of human experience and affairs” (R v Micallef (2002) 136 A Crim R 127 at [44]) the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed together, is that the accused is guilty of the offence charged. 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 will again fail.

  4. I remind myself that drawing a conclusion from one set of established facts to find another fact proved, involves a logical and rational process of reasoning. I must not base my conclusion upon speculation, conjecture or supposition.

  5. As indicated in the Crown’s opening address there are seven items of circumstantial evidence it relies upon. They are:

  1. That the accused’s house was destroyed by fire at around dawn on 5 January 2020. This is not a matter of dispute.

  2. That at the time of the fire the accused was the only person present in the house. This is not a matter of dispute.

  3. That the accused had a financial interest in the destruction of the house.

  4. That the surrounding bushfires did not threaten the house on the evening of 4 January or in the early hours of the morning of 5 January 2020, and there was no possibility of an ember igniting the fire in the accused’s house.

  5. That a Pyrocumulonimbus cloud did not collapse on the accused’s house or cause embers to travel into it, on the evening of 4 January, or in the early hours of 5 January 2020.

  6. That the accused lied in his call to emergency services at 5:21 AM on 5 January 2020 about the state of the house fire.

  7. That the accused lied to police on 5 and 6 January 2020 in his description of the fire, his removal of personal property from the house and his insurance status.

  8. That these lies demonstrate in the accused a consciousness of guilt.

  1. To be satisfied beyond reasonable doubt of the accused’s guilt, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence 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.

The accused’s ERISP and his evidence

  1. The accused gave evidence in this trial. He also participated in three lengthy and extensive interviews with police which were recorded. I have viewed all those interviews in the course of the trial. I remind myself that the accused had no obligation to do any of those things. I have observed that he emphatically denied all allegations against him. The accused is entitled to rely upon the accounts he gave in his interviews with police and in his evidence, and to have me take them into consideration along with all the other evidence in the trial and I will do so. Most importantly, the accused is not required to prove his account is true. The Crown in discharging its obligation to prove his guilt must satisfy me that what he says could not reasonably be true. The fact the accused gave evidence does not alter the burden of proof. It always remains for the Crown to establish beyond reasonable doubt the charges it brings against the accused, and it is never for him to prove that he is not guilty.

  2. I direct myself that where an accused offers a version, I do not have to accept that version to have a reasonable doubt about his guilt. In other words, it is not the position that I must believe the accused is telling the truth before he is entitled to be acquitted. If at the end of my deliberations I find the Crown has failed to eliminate a reasonable possibility that the version he presents is true, then the Crown has failed in its obligation to persuade me of his guilt beyond reasonable doubt.

  3. It is not a case of comparing versions and determining which one I prefer. Before I can return a verdict of guilty in respect of any count on the indictment, I must be satisfied of the guilt of the accused beyond reasonable doubt. Even if I do 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.

  4. Even if I reject the version given by the accused either in his interviews with police or in his evidence or both, I still need to be satisfied of his guilt on the evidence in the Crown case, before returning a verdict or verdicts of guilty.

  5. To summarise what I have just said, firstly, if I believe what the accused said in his interviews with police and his evidence then obviously, I must acquit him. Secondly, if I have difficulty in accepting what the accused said but think it might be true, then I must acquit him. Thirdly, if I do not believe the accused, then I must put the content of his interviews and evidence to one side. The question 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].

  6. I will return later in this judgment to my assessment of the truthfulness and reliability of the accused’s evidence.

Expert evidence

  1. Expert evidence was given in the trial concerning two areas of contention. Firstly, how the house fire commenced, and secondly, the state of mind of the accused in the period following the fire. I will deal with each of these areas of expert evidence in more detail later in this judgment however it is important that I direct myself generally as to how expert evidence is to be treated.

  2. I direct myself that an expert witness is a person who has specialised knowledge based on their training, study, or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

  3. I remind myself that the value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.

  4. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of any one or more of the experts then I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be.

  5. In this case and going to the question of the cause of the fire, there is a conflict between the expert evidence of Detective Senior Sgt Gregory Moon called on behalf of the Crown and Timothy Cousins who was called on behalf of the accused. There is also conflict between the expert psychiatric evidence of Dr Yvonne Skinner for the Crown, and Dr Antonio Simonelli for the accused, going to the accused’s state of mind in the period after the fire, and especially various inconsistencies in the version of events he provided to police in the immediately aftermath of the fire.

  6. I direct myself that it is not a case of simply choosing between the expert’s evidence as a matter of simple preference. I may accept an expert witness in whole or in part, or I may reject the witness’s evidence. In resolving any conflict in the expert evidence, I am entitled to and will consider it in the context of all the evidence that is before me, and as with any witness, by applying my life experience and common sense.

  7. All the expert evidence appears to be based on facts which the experts have been told, or on assumptions which they have been asked to make. I must analyse the evidence of each expert and determine the extent to which his or her opinion depends upon those facts or assumptions being correct.

  8. If the opinion of one or other of the experts is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then I must consider whether the opinion based upon those facts or assumptions is correct. On the other hand, if I decide the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation.

Lies as consciousness of guilt or as going to credit

  1. The next direction I must give myself concerns the evidence of the accused which the Crown alleges amount to lies. So far as they concern count 1, the Crown asserts these lies go to his consciousness of guilt. So far as concerns counts 2-10, the Crown says lies told by the accused go to my assessment of his credit as a witness.

  2. Dealing initially with lies as consciousness of guilt. Firstly, I remind myself 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 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 what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something the person knows, at the time of making the statement, is untrue.

  3. If I find the accused lied in the way the Crown suggests, 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 this lie into account as evidence of the accused’s guilt but only if I find two further things to which I will shortly refer. When I say I can take it into account as evidence of the accused’s guilt, I am not suggesting it could prove his guilt on its own. What I mean is it can be considered by me along with all the other facts the Crown relies upon and which I find established on the evidence, in considering whether the Crown has proved its case beyond reasonable doubt.

  4. Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before I can use the lie as some evidence of his guilt, I must find two further matters proved.

  5. First, I must find what he said relates to an issue relevant to the offence the Crown alleges he committed. It must relate to some significant circumstance or event connected with the alleged offence. Second, I must find that the reason the accused told this lie is because he feared that telling the truth might reveal his guilt in respect of the charge he faces in count 1. In other words, he feared that telling the truth would implicate him in the commission of count 1.

  6. I remind myself however, that people do not always act rationally, and telling lies may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic or confusion; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.

  7. If I determine a lie or lies may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of his guilt. If that is the case, I must and will put it to one side and focus my deliberations upon the other evidence in the case.

  8. If I decide in considering counts 2-10 that the accused told a lie or lies, then the only way I can take those lies into account is in my assessment of his credibility. That is whether I accept other things he told either the police in his interviews, or me in his evidence, about those particular counts on the indictment.

The evidence in the trial

  1. At the commencement of the trial I was provided by the parties with two bundles of material which contained Agreed Facts pursuant to s 191 of the Evidence Act, and various documents in respect of count 1 and counts 2 to 10 respectively. The effort involved in the parties reaching this agreement undoubtedly meant the trial was able to proceed more efficiently than might have otherwise been the case, and I thank them for doing so.

  2. The material concerning count 1 became Exhibit 6, and the material concerning counts 2 to 10, Exhibit 7. For the sake of convenience and because it is logical to do so, I will deal with the house fire count and the fraud counts, and the proceeds of crime count separately, although there is plainly some overlap between them. Both sets of Agreed Facts dated 9 June 2023, were signed by the accused, his solicitor, and the Crown. Despite the accused seeking to distance himself from the Agreed Facts at various times during his cross examination they are, for my purposes, to be accepted and relied upon in full.

COUNT 1 – THE HOUSE FIRE

Background

  1. The accused has owned the property “Calymea” since 2002. It is registered in the name Mark Colquhon, one apparently used by him from time to time. His actual full name is Darren Mark Colquhoun. His first name is different, and his surname is spelt differently on the title deed to the property. He says this is because of an error made by his solicitor/conveyancer at the time the property was purchased.

  2. From January 2005 the accused held an “Easyfarm” insurance policy with NRMA. That policy covered the business he conducted at the property described as “Hobby farm/agistment/camping” and his house. The policy was renewed annually on 22 February and the sum for which the house was insured increased over time. As a matter of everyday experience this means that each year between 2005 and 2019 the accused paid a premium or caused such a premium to be paid in respect of this policy, to NRMA.

  3. The accused’s daughter gave evidence which I accept, that on a date in December 2019 which she was unable to identify, the accused spoke with her and said he did not know whether his house was insured, but if it was then it was for about $150,000. She had a background of 13 years working in the insurance industry and expressed concern to her father as to what he told her. On 23 December 2019 the accused’s insurance policy was adjusted at his request. He extended his insurance coverage by $60,0000 to include a shed on the property and solar panels. This extension of the accused’s insurance policy occurred 13 days prior to the house fire and was not something his daughter was aware of. The extension of this policy demonstrates, in my view, that the issue of insurance generally, was operative in the mind of the accused in the period immediately before the fire at his house. The accused’s knowledge of his insurance status is a matter of importance in the trial to which I will return. As of 5 January 2020, the accused’s house was in fact insured for $341,000 although the sum he received in due course from his insurer was not limited to this amount.

  4. The evidence reveals that police attended at the accused’s property on 30 December 2019 to speak with him about the approaching bushfires and to ensure that any campers on his property had left. The evidence of Sergeant Keith was that in a conversation with the accused he was angry and upset as he was losing money because of the fires. During this conversation, Sergeant Keith gave evidence the accused said words to the effect that he either “wouldn’t mind” or “hoped” his house burnt down. Her evidence was given from her memory, and she had not been able to refresh it from a notebook entry or the like. She agreed she could not recall the exact words spoken, the context of the conversation, or what immediately preceded the words she remembered. Whatever the context, and whatever was spoken by the accused before he spoke the words the officer gave evidence of, I am satisfied those words or words to that effect were spoken by him, and at the time he was angry and upset. It is at the very least curious that the accused would have said these words, particularly when one considers what occurred in the following days.

Evidence concerning 4 January 2020 from independent witnesses

  1. Phillip Burke is the accused’s neighbour. He lives at Barringella, about 1.3 km to the north-west of the accused’s house. The accused’s property is therefore to his south-east. He gave important evidence concerning the prevailing weather conditions in the area on 4 and 5 January 2020. He said that at around new year, there was strong fire activity in the area particularly to the west and south of his property. He said there was not much fire activity to the east and south-east of his property, and after new year there was not a great deal of fire activity in the area.

  2. He gave evidence that on about 2 January 2020 he observed the RFS near his home using drip torches to start a fire in the area on the opposite side of the road to the accused’s property near his cattle yards. He said that the bushland in that area burnt as a result. I have inferred from this evidence that what Mr Burke saw was the commencement of a controlled burn.

  3. He said that at about 5:30 PM on 4 January 2020 a strong wind came up from the southeast. He was concerned about a fire starting on his side of Burrier Road and he drove towards the accused’s cattle yards. He observed a couple of spot fires which he extinguished, and a small leaf litter fire burning on the southern side of the road near his house. These were on the north-western side of the accused’s cattle yards. Mr Burke remained in the area putting out spot fires until the wind died at about 9 or 9:30 PM. He said the wind did not pick up for the rest of the evening or the next morning. He said he remained on the side of the road until about 2:30 AM, before returning home for some rest. It was then he noticed lights on at Calymea. He again checked the situation at about 4 AM and saw the small leaf litter fire he had earlier observed had burnt about 40 m while he slept. In re-examination he marked on an aerial map with a red semicircular line, the area of this fire, which I note to be some distance from Calymea. He also marked the direction in which the fire was moving, being away from Calymea. This marked aerial map became Exhibit 4. Mr Burke said that when he got up at 4 AM on 5 January there was no wind.

  4. He gave also gave evidence of observing a tree fallen both across the road and the accused’s fencing on 3 January, and that this was about 50 m north-west of the cattle yards. He observed the tree had been pushed off the road down through the accused’s fence, damaging about 30 m of fencing.

  5. In cross examination he said the majority of the bushland across the road from the accused’s house (that is, on the southern escarpment) had not been burnt by the morning of 4 January. He went on to explain he was referring to a thin strip of 50 m of trees and scrub opposite the accused’s house. He said that by 4 January the bushland across the road from Calymea had been blackened and there was no fire activity. He agreed he did not get out his vehicle to have a close look. He also said he did not notice anything smouldering, and as a member of the RFS for 50 years he was mindful to look for smoke, and for trees still alight. He agreed from his long experience that fires can be unpredictable and when weather/wind changes occur they can be catastrophic. He also agreed that embers can be a source of fire ignition. He said that in the period 2.30 AM to 4 AM on 5 January, when he was resting, he was unable to say what the wind conditions were in the area. He also agreed he did not venture to the part of the road adjacent to Calymea and was unable to say if there was any burn activity on the escarpment immediately opposite it.

  6. I found Mr Burke a most impressive witness. He gave his evidence carefully, was an experienced RFS member, and made appropriate concessions in cross examination. I was left with the clear impression he was doing his best to give truthful and accurate evidence to assist the court.

  7. Glenn Griffiths has been an RFS volunteer since 2009. During the black summer bushfires he was volunteering in the Shoalhaven area. On 4 January 2020 he commenced a shift in the Tomerong area which is generally south of the accused’s property. He gave evidence that the forecast on the day was for catastrophic bushfire conditions. At about 5 PM he was reassigned to patrol the Longreach Road area in Barringella for active fire. While doing so he observed there was very little fire activity in the area south of Yalwal Road. He drove along Yalwal Road past the accused’s house at about 9.30 or 10 PM. He did not notice any fires in the immediate vicinity of the house, although he did observe a small spot fire about 100 to 200 m from the road that did not require his attention. He said the wind had died down by this time and there were no embers in the area.

  8. In cross examination he agreed it was his expectation that wind and weather conditions would have a major impact on 4 January. He distinguished between an ember, being something moving, and an item that is merely burning. He agreed that one of the tasks he was undertaking on 4 January was to put water on already burnt areas to ensure there were no embers left that could start further fires. He agreed that fire conditions can change unpredictably dependent on the weather. He also agreed that an area which might be burnt can still have smouldering logs which may give rise to the creation of embers in certain weather conditions. He agreed that he did not explore the area across the road from the accused’s house for the presence of smouldering logs.

  9. Like Phillip Burke, Glenn Griffiths was a forthright and direct witness who I regard as reliable.

The accused’s conduct on 4 January 2020

  1. Shortly after 8:30 AM on 4 January 2020 the accused contacted the NRMA and enquired about the status of his insurance policies. That call was recorded and a transcript of it formed part of the Agreed Facts concerning count 1 (Annexure 5). During this conversation the accused said the following:

  1. As for the remaining items claimed pursuant to this grant, I am unable on the basis of the evidence, and notwithstanding my concerns about the accused’s evidence generally, to be satisfied beyond reasonable doubt that he did not suffer the loss he claims. Accordingly, in respect of this count, the total quantum of the accused’s dishonesty of which I am satisfied beyond reasonable doubt is in the sum of $78,800. Given the grant he obtained was limited to $50,000 his liability in respect of count 9 must be capped in that sum.

  2. A verdict of guilty will be entered for count 9.

Count 10 – the proceeds of crime count

  1. This count alleges that between 3 February 2020 and 19 March 2021 at Barringella the accused dealt with the proceeds of crime namely $427,200 in cash, knowing it to be the proceeds of crime. I have earlier directed myself as to the elements of this count. This count concerns the actual property possessed by the accused at the relevant time, being the cash discovered by police in his safe.

  2. It is not a matter of dispute that when police executed a search warrant on the accused’s property on 19 March 2021, they located cash in a total amount of $427,200 in a safe in his workshop. The cash was seized. As I have noted much earlier in this judgment there is no issue the accused had exclusive and sole possession of the cash. His evidence was that he generally dealt in cash and had a mistrust of banks. The thrust of the Crown case is that this cash represents the proceeds of the various frauds in which the accused engaged both in respect of the house fire and otherwise in the period following 5 January 2020. A video recording of the search warrant was played during the trial, and I have reviewed it again on a number of occasions in the course of preparing this judgment.

  3. The total amount I am satisfied beyond reasonable doubt the accused received fraudulently is in the sum of $541,299.94. All this money was initially paid into various of the accused’s bank accounts. He then withdrew substantial cash amounts from those bank accounts totalling $460,000 as follows:

  1. 12 February 2020 - $350,000

  2. 17 February 2020 - $15,000

  3. 4 June 2020 - $30,000

  4. 1 July 2020 - $10,000

  5. 18 August 2020 - $10,000

  6. 8 October 2020 - $45,000

  1. While the cash was seized by police more than 14 months after the fire, the various amounts indicated above were withdrawn by the accused from his bank accounts between thirteen months and five months prior to seizure of the cash by police.

  2. At the time the cash was seized it was found in bank slips and plastic bags. The search warrant footage indicates that not all the plastic bags contained the same quantity of cash. Photographs of those slips and bags were contained within annexure 23 to Exhibit 7. The cash within the bank slips was in a white/cream coloured calico bag.

  3. The evidence does not fully establish the quantities of cash located in all the various bank slips and bags. What the evidence does demonstrate is:

  1. The accused was in possession of one plastic bag of bank notes dated 4 February 2020, endorsed “Armaguard Wollongong” and said to contain five hundred, $100 bills, making a total of $50,000.

  2. The accused was in possession of three plastic bags of bank notes dated 6 February 2020, endorsed “Armaguard Wollongong” and said to contain five hundred, $100 bills, making a total of $150,000.

  3. The accused was in possession of one plastic bag of bank notes dated 7 February 2020, endorsed “Armaguard Wollongong” and said to contain five hundred, $100 bills, making a total of $50,000.

  4. The accused was in possession of one plastic bag of bank notes which was undated, and said to contain five hundred, $100 bills, making a total of $50,000. This plastic bag was identical to the other five plastic bags located in the accused’s safe, save that a date and “Armaguard Wollongong” endorsement were missing.

  5. The accused was in possession of one bank slip containing cash dated 3 February 2020, endorsed with the stamp of the National Australia Bank, Campbelltown.

  6. The accused was in possession of four bank slips containing cash dated 4 February 2020, endorsed with the stamp of the National Australia Bank, Campbelltown.

  7. The accused was in possession of seven bank slips containing cash dated 5 February 2020 and endorsed with the words “Armaguard Wollongong.”

  8. The accused was in possession of eleven bank slips containing cash dated 6 February 2020, ten of which were endorsed with the words “Armaguard Wollongong.”

  9. The accused was in possession of three bank slips containing cash dated 8 July 2013 endorsed with the stamp of the Westpac Banking Corporation, Wollongong.

  1. I am satisfied, having viewed the search warrant video and given the concession in paragraph 18 of the accused’s submissions dated 8 September 2023, that no less than a total of $200,000 cash was contained within several of the plastic bags found in the accused’s safe, and that the packaging of these individual amounts of $50,000 was identical. These packages were all dated in early February 2020, in the days before the accused withdrew the sum of $350,000 from his bank on 12 February 2020. That being so, I am satisfied beyond reasonable doubt that this sum of $200,000 represents part of the cash withdrawn by him from the payments made by the NRMA pursuant to his house insurance policy. I have reached this conclusion based upon the dates upon which the bundles of cash were packaged by Armaguard, and the close proximity of those dates to the date the accused withdrew the sum of $350,000 from his bank. Given my earlier conclusion that this amount of money from his insurance claim with the NRMA was obtained fraudulently, it follows that this sum of $200,000 was substantially derived from the commission of a serious offence and accordingly a verdict of guilty will be entered for count 10.

  2. The more vexing question arising in respect of this count concerns the quantum of cash located within the accused’s safe of which I can be satisfied beyond reasonable doubt he knew was the proceeds of crime. The evidence reveals that an undetermined amount of the cash was held in other bank slips including some dating from 2013, and according to the accused, represented money remaining from the sale of a former matrimonial home at Fairy Meadow. The evidence in Exhibit 52 establishes settlement of the sale took place on 28 May 2012 and that the accused received a total amount (including his share of the balance of the deposit) of $235,742.36.

  3. The effect of the accused’s evidence was that he thought this amount was paid into a Westpac account in his late mother’s name and later transferred to the City Coast, which I have inferred to be the then operating City Coast Credit Union. His evidence as to this was perhaps, not surprisingly given then effluxion of time, somewhat unclear. He said “I can’t remember where it went, whether it went from Westpac to City Coast and then out, or whether it went- whether some of it went to City Coast, but eventually it was all drawn out in cash by my mother”. After the cash was withdrawn by his mother it was given to him and he put it in his safe.

  4. The Crown says I would not accept what the accused says as to this, because Westpac records do not record any transactions taking place in the nominated account of the accused’s mother (where he said the sale proceeds were paid) in the period 1 May 2012 to 31 December 2013. Given the time which has elapsed and the fact the accused raises in his evidence the possibility that the funds were initially paid not into a Westpac account but rather a City Coast Credit Union account, the evidence does not allow me to draw the conclusion the Crown urges to the requisite standard.

  5. Additionally, there is no evidence which establishes beyond reasonable doubt the quantum of cash held by the accused prior to the commission of his crimes, nor does the evidence establish the exact amount of money held in various bank slips date stamped 2020. In the absence of this evidence which would otherwise enable me to draw an inference as to the age and source of the money, and despite my misgivings concerning the accused’s evidence generally, these two factors raise at least the possibility that some part of the money, the exact quantum of which cannot be determined, was held by the accused in his safe and had been so held for a period in advance of his course of fraudulent conduct the subject of this trial.

  6. Other than for this amount of $200,000, and an exception to which I will now come, I am unable to identify the exact amounts of cash held within the remaining bank slips (identified above as e, f, g, h and i) including those contained within the calico bag. As a result of the absence of this evidence touching upon the breakup of the money within the various bank slips, I cannot be satisfied beyond reasonable doubt as to what portion of the balance of the funds in the accused’s possession derives from his crimes. Obviously, I must not guess, speculate, or seek to estimate such further amount.

  7. The exception to this concerns money the accused received from the Red Cross. These payments were made on 17 February 2020 in the sum of $15,000, on 4 June 2020 in the sum of $30,000, and on 1 July 2020 in the sum of $10,000, making a total of $55,000. In his interview with police on 19 March 2021 when answering questions from the officer in charge at Q 235 to 239, the following exchange took place:

Q 235 How much money did you from the Red Cross?

A Again, I’m not a hundred percent, but you know, I’d say, guessing, fifty thousand at a guess.

Q 236 O.K. But so, you agreed that you applied for a number of grants---

A Yeah, From---

Q 237 --- the Red Cross, yeah.

A ---- the Red Cross, yeah.

Q 238 And you received money from them?

A Yeah, definitely.

Q 239 Yeah. And where is that money now?

A It would be in my safe. Or was. You’ve got it.

  1. I am satisfied these answers are an admission by the accused to having possession in his safe of this further sum of $55,000 on 19 March 2021, and that this amount was derived by him substantially by the commission of a serious offence, being the fraud he committed against the Red Cross. His answers to the questions posed by Detective Senior Constable Sheaff could not have been clearer.

  2. There will be a verdict of guilty for count 10. When sentencing I will have regard to an amount of $255,000.

VERDICTS

  1. My verdicts in this trial are accordingly as follows:

Count 1 – that on 5 January 2020 at Barringella in the state of New South Wales you dishonestly destroyed by means of fire your house situated at Barringella with a view to making a financial gain – I find you guilty.

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

Count 3 - that between 6 February 2020 and 28 February 2020 at Barringella in the state of New South Wales you did attempt by deception to dishonestly obtain a financial advantage from NSW Government Disaster Welfare Services – I find you guilty.

Count 4 - that between 24 January 2020 and 12 February 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $3,000 from St Vincent De Paul – I find you guilty.

Count 5 - that between 10 February 2020 and 27 February 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $75,000 from the Rural Assistance Authority – I find you guilty in an amount of $40,699.94.

Count 6 - that between 25 February 2020 and 16 June 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $3,500 from the Salvation Army – I find you guilty.

Count 7- that between 4 June 2020 and 16 June 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $8,000 from the Salvation Army – I find you guilty.

Count 8 - that between 21 April 2020 and 13 August 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $15,000 from Local Land Services – I find you not guilty.

Count 9 - that between 20 September 2020 and 2 October 2020 at Barringella in the state of New South Wales you did by deception dishonestly obtain a financial advantage, namely $50,000 from Services NSW – I find you guilty.

Count 10 - that between 3 February 2020 and 19 March 2021 at Barringella in the state of New South Wales you did deal with the proceeds of crime namely $427,200, knowing it was the proceeds of crime – I find you guilty in an amount of $255,000.

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Decision last updated: 10 March 2025

Cases Citing This Decision

0

Cases Cited

20

Statutory Material Cited

3

Chamberlain v The Queen (No 2) [1984] HCA 7
Kirkland v The Queen [2021] SASCA 14
Kane (a pseudonym) v The King [2024] SASCA 70