R v Coughlan - [2019] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION: R v Coughlan [2019] QCA 65
PARTIES: R v COUGHLAN, Eamonn Charles
(appellant)
FILE NO/S: CA No 152 of 2018
DC No 1125 of 2017
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING District Court at Brisbane – Date of Conviction: 6 June 2018
COURT: (Clare SC DCJ)
DELIVERED ON: 16 April 2019
DELIVERED AT: Brisbane
HEARING DATE: 12 November 2018
JUDGES: Fraser and Morrison JJA and Mullins J
ORDER: The appeal is dismissed.
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ARSON AND LIKE OFFENCES – GENERALLY – where the appellant has been convicted of arson and attempted fraud arising out of the destruction of his house and a resultant claim on his insurance policy – where the appellant contends he was not the person that set the fire – where the appellant claims that someone outside his house was screaming at him at the time of the fire – whether or not there is a reasonable hypothesis consistent with innocence
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant contends that there was evidence of another man running from the house, who could have been the arsonist – where the appellant contends that there was evidence that the appellant was being chased, which explained why he ran away from the scene – where there were others at the scene who could not be excluded as having set the fire – where it is contended the scientific evidence did not exclude sources of ignition inconsistent with the appellant setting the fire – where it is submitted that the scientific evidence could not exclude that the presence of petrol residue on the appellant’s shoes and tracksuit pants was the result of cross-contamination – where the presence of a redhead match suggested corruption of the
investigation process – whether there is an inference consistent
with innocence reasonably open on the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant contends that he was denied a fair trial because of the failure by the prosecution to disclose two reports of an investigation police officer until such time as that officer had completed his evidence and departed for overseas – where the appellant submits that the prosecutor failed to disclose the identity of a number of youths who were at the scene of the car arson that occurred prior to the arson of the appellant’s house – whether the undisclosed material might have influenced the result of the trial
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contends that the failure to give a direction pursuant to s 21A(8) of the Evidence Act 1977 (Qld), in respect the evidence of a child witness, constituted a substantial miscarriage of justice – where failure to give the appropriate direction constitutes an error of law which renders the trial irregular – where that failure does not necessarily give rise to a miscarriage of justice – whether or not the failure is capable of giving rise to an inference adverse to the appellant
Evidence Act 1977 (Qld), s 21A(2), s 21A(8)

followed
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35,
followed
R v PBA [2018] QCA 213, cited

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42, cited

COUNSEL: D O’Gorman SC, with D Wells, for the appellant
M Hynes for the respondent
SOLICITORS: Moreton Bay Regional Community Legal Service for the
appellant
Director of Public Prosecutions (Queensland) for the
respondent
[1]      FRASER JA: I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.
[2]      MORRISON JA: Between about 5.00 pm and 6.00 pm on Saturday, 18 July 2015, the appellant was waiting outside his house at Bribie Island. He was renovating that house, which was not where he lived. He said he had been waiting to see a man he had met only once three days before, who had expressed an interest in buying a motorbike the appellant was selling for someone else. The motorbike was parked some distance away, around the corner and out of sight.
[3]      The buyer did not show up. As the appellant walked to the front of the house it exploded and burned. The explosion was so strong it blew out aluminium panels, which landed about 20 metres away. The house was destroyed.
[4]      The appellant was close enough to be burned on his left hand, back and face. He immediately ran off down the road, past a number of people. Two of those people were at or near the front gate of the next-door neighbour. He then rode the motorbike away, off Bribie Island.
[5]      At 7.45 pm police spoke to the appellant’s wife. The appellant was not home and his wife could not contact him. Shortly after 9.00 pm that same night, the appellant arrived on the motorbike at the Caboolture Police Station. No-one had seen him in the interim. He was distressed, injured with burns, and had burnt clothing and shoes. Later that night he was interviewed by police.
[6]      He was charged with arson and attempted fraud arising out of the destruction of his house and a resultant claim on his insurance policy. After a trial (at which the appellant represented himself) he was convicted on both counts. He challenges those convictions on this appeal.
[7]      The amended notice of appeal lists that grounds sought to be agitated:

(a) Ground 1: the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence;
(b) Ground 2: an hypothesis advanced by the appellant was not excluded, namely someone other than the appellant caused the appellant’s home to explode;
(c) Ground 3: the appellant was denied a fair trial by the failure of the prosecution to disclose:
i.        a report of Officer Bioletti dated 19 August 2017 and a related report until after Officer Bioletti had completed his evidence and departed for overseas;
ii.        the identity of a number of youths who were at the scene of the car arson in the vicinity of 62 First Avenue, Bongaree on 12 April 2015; and

(d) Ground 4: the trial judge failed to properly direct the jury in accordance with ss 21A(2) and (8) and s 39PC of the Evidence Act 1977 (Qld).
[8] At the hearing of the appeal the ground relying on s 39PC of the Evidence Act was abandoned.
[9] In the way in which the appeal was conducted Grounds 1 and 2 became a combined ground, namely that the basis upon which it was said that the verdicts were unreasonable and cannot be supported having regard to the evidence, was because an hypothesis advanced by the appellant was not excluded.

The car arson referred to in Ground 3 is the shorthand description of the incident on 12 April 2015 outside the appellant’s house at Bongaree in which his car was destroyed by fire and for which he received a payout from NRMA Insurance of $85,000. The appellant caused the evidence relating to the car arson to be adduced at the trial in the course of his cross-examination of witnesses.
Factual matters
Because of the various issues raised on appeal by the appellant it is necessary to examine the whole of the evidence at the trial,[1] not just that concerning the alternative hypothesis. That may have been required in any event,[2] but some matters raised were peripheral to the contentions concerning the alternative hypothesis.[3] The schedule attached to these reasons will facilitate a better appreciation of the evidence.
[1]            For ease of reference, and without intending any disrespect to any witness, to the extent possible I intend to refer to witnesses by their surnames.
[2]            SKA v The Queen (2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; M v The Queen (1994) 181 CLR 487 at 493-494; R v Baden-Clay (2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35.
[3]            For example, some of the criticism of the disclosure by the prosecution.
Many matters that I shall deal with were the product of the appellant’s representing himself at the trial, and the issues he pursued, especially as to what he repeatedly described[4] as corrupt practices or persecution by the investigating police officers and other police.
[4] Both in front of the jury and in his interviews which were played to the jury.
Witnesses who were near the house
There were a number of witnesses who happened to be near the appellant’s house and saw him run away after the explosion.
The first set was two friends who drove to the house next door and were there when the house exploded and burned. They were Kye Patruno and Jack Dyke. They drove there with Jessie Drayton[5] and Jake Long. Long and Drayton did not provide statements to police, because they had moved interstate, though Long was willing to do so.
[5] Who also used the surname “McDougall”. He was referred to in the evidence by both surnames; I intend to use “Drayton” unless the circumstances require otherwise.
Then there were two friends, Amy Freeman and Jasmine Trindall who were on the street and saw a man running away. Then the neighbours, Azure Blakers, Dayna Spann and Liam Harwood.
There were 24 police witnesses, many of them called to testify about the investigation. Of those 24, three were scientific officers, and another eight were made available for cross-examination.
Finally, there was a witness from the insurer (NRMA), a doctor and a witness from the Queensland Fire Service as to the cause and origin of the fire.
Evidence of Patruno
Patruno said that in July 2015 he was living with his mother, next door to the appellant’s house. On the day of the explosion he and some mates[6] had been planning to go camping. They gathered camping equipment from Dyke’s house then went to Patruno’s house to gather some more. At that house Patruno got out with Drayton, but Dyke and Long waited in the car as they were not needed to gather the camping things.[7]
[6] Drayton, Long and Dyke.
[7] Appeal Book (AB) 62.
The car was a silver Subaru station wagon.[8]
[8] AB 68 line 2.
As they walked to the gate Patruno noticed there was a strong smell of petrol.[9] As he walked inside the smell got less. While in his room he heard a “smash of glass which was followed by … almost instantaneously an explosion that was followed by a shockwave that actually … had a bit of force behind us … pushing us away from the house that was on fire”.[10] Within a matter of 20-30 seconds they ran outside, saw the fire and ran out onto the nature strip, just in front of the fence, to ask if anyone was in there. He walked as close as he could to the fire and called out something like “Is anybody OK? Is anyone in there?” He waited for a few minutes. He could not hear or see anyone from the front of the property so he joined his friends who were still in the car, Dyke in the front and Long in the back.
[9] AB 62 lines 32-37, AB 65 line 35.
[10] AB 62 line 46 to AB 63 line 2; AB 72 line 33.
After those in the car said something to him he looked around and saw a dark shadowy figure running away.[11] He could not give a description of the person running.[12] Later in cross-examination Patruno rejected the suggestion that he was wrong about seeing the person run off.[13] Some other people started to turn up.
[11]           AB 64 lines 19-26; AB 114 lines 5-9.
[12]           AB 68 line 12.
[13]           AB 114 line 32 to 115 line 8.
He could not recall any other cars parked in the street. He did not hear anyone yelling out.[14] He made sure emergency services had been called before leaving to go camping, and thought that the fire services had arrived before he left.[15]
[14] AB 69 line 27.
[15] AB 69 lines 38-45.
In cross-examination Patruno said he was close enough to the house that it “was almost burning me”;[16] he accepted that was about eight metres away.[17] He described his position:[18]
[16]           AB 73 line 34.
[17]           AB 78 line 18.
[18]           AB 76 lines 5-9.
“I saw a house on fire so I ran up as quickly as I could to whatever position was safe for me … until I felt the flames were too hot for me.”
When Patruno and his friends left they went to see if they could find the person they saw running off, but they did not see him.[19] He said they saw no-one, and “…we went around the blocks in Bongaree before we realised that we don’t really know what we’re going to do if we do find him and we need to get on with organising the rest of the night because we have other people we had to contact and other things to pick up and whatnot”.[20]
[19]           AB 113 lines 21-29.
[20]           AB 117 lines 22-27.
[25]      Cross-examination touched upon the contact Patruno had with Officer Weare.[21] He said he did not like Bribie Police.[22] Patruno accepted that his statement to police was given about two years and four months after the fire.[23] He then explained why it took so long:[24]
[21]           AB 79-81. Weare was the investigating officer.
[22]           AB 82 line 12.
[23]           AB 81 line 33.
[24]           AB 82 lines 27-33.
“Because I was … under the impression that Detective Ben Weare was a part of the Bribie Island police. And, because of my personal issues with the Bribie Island police, I did not want to be, really, a part of it. Also, the fact that if somebody is capable of setting somebody’s house on fire, I was scared for my own life at the same time and did not want to get involved. And I didn’t want to bring my mum into it, because she has very high stress levels when it comes to danger like that.”
Patruno then accepted that it was when he realised that Weare was not part of Bribie Police that he decided to give a statement, and also “when [Weare] stated that it was a very important thing for him … to gather witnesses”.[25] It was Patruno’s mother who convinced him to give a statement.[26]
[25] AB 83 line 11.
[26] AB 85 lines 28-36; AB 108 line 30 to AB 109 line 14.
He said that Weare had told him that the appellant was accusing him of the arson.[27] The cross-examination was then directed to what Patruno had been told before he gave his statement. Patruno said “that statement was all me”,[28] and “I was just worried about my mum”.[29]
[27]           AB 83 line 46 to AB 84 line 9.
[28]           AB 84 line 46.
[29]           AB 85 line 2.
Although Patruno accepted that Weare had told him he “could be possibly accused as a suspect”, he could not recall when that was, but it was after he gave his statement.[30] He said Weare made no promises to him about not being charged.[31]
[30] AB 85 lines 5-13.
[31] AB 85 line 23, AB 87 line 32.
Patruno rejected the appellant’s suggestions that he was a liar in his evidence.[32] He agreed that at a previous trial he had answered a question as to whether Weare was protecting Patruno: “I’m not sure about protecting, but he’s just trying to make sure that we are safe and nothing happens to us.” He explained he was referring to himself and his mother.[33]
[32] AB 86 lines 1-5.
[33] AB 86 line 40 to AB 87 line 8.
Patruno agreed that he had previously spoken to Channel 7 TV and suggested that the explosion may have been triggered by a Molotov cocktail. However, he explained, as he had done at the previous trial, that his comments were because of a game he had played, called Grand Theft Auto, in which part of the game is to start explosions with a Molotov cocktail, explosives, a sticky bomb or a grenade.[34] He later explained that he was asked for a theory about what happened and he gave that answer, but it was not something that he actually knew.[35] He mentioned a Molotov cocktail because, as he understood it, they were made out of glass and he had heard glass smashing.[36]
[34]           AB 88 line 37 to AB 89 line 22.
[35]           AB 132 lines 35-46.
[36]           AB 133 line 28.
Patruno rejected the proposition that he said to other people “Don’t say I was here”.[37] He said that the three[38] who accompanied him to his house were the only ones with him, until people from up the street began arriving.[39] He could recall recognising some of those who arrived, such as Trindall, and the neighbours from two doors down, the Blakers.
[37]           AB 92 lines 1-6.
[38]           Drayton, Long and Dyke.
[39]           AB 92 lines 28-36.
Patruno said he first spoke to uniformed Police Officers the next day after the fire, or the day after that. He could not recall what they asked, but simply answered their questions.[40] He said he was not questioned as a suspect, and was not surprised that that was the case.[41]
[40] AB 93 lines 25-41.
[41] AB 94 lines 6-26.
Patruno was cross-examined about his being able to smell petrol and it was suggested (but not accepted) that the wind was in the direction away from his mother’s house. He answered that it “Must have been a shitload of petrol”.[42] He later rejected the suggestion that he was lying about smelling petrol.[43]
[42] AB 95 lines 1-14.
[43] AB 100 lines 21-38.
A number of questions were put to Patruno about his house being known as a drug house, all of which were denied.[44] He was cross-examined about his criminal history and said he had only ever been to court once,[45] for offences of possession and supply of dangerous drugs.[46] No conviction was recorded and he was fined $1,000.[47]
[44]           AB 95 line 38 to AB 97 line 7.
[45]           AB 97 line 35.
[46]           AB 98 line 8 to AB 99 line 46.
[47]           AB 100 lines 1-5.
Patruno said he was sure he and his friends left before the police arrived.[48] He said he knew they were coming, he did not have to wait and he had other things to do.[49]
[48] AB 101 lines 6-7.
[49] AB 101 line 21.
Cross-examination turned to the arson on the appellant’s car, three months before the house fire.[50] Patruno said that night he was with Drayton and a girl called Janaya Lauren. They had been down at the waterfront. He denied various suggestions put to him including that he went to get petrol and set fire to the car.[51] He also said that there had not been violent attacks or break-ins at or close to his home.[52]
[50]           AB 102-103.
[51]           AB 128 line 37.
[52]           AB 128 lines 42-46.
Cross-examination turned to whom Patruno had spoken prior to the trial. He said he had spoken to Long via the internet prior to the previous trial,[53] but not to Drayton because he could not get in contact with him.[54] He said part of the reason for that was because Drayton was a bad alcoholic who was a violent drunk and had anxiety attacks. Drayton had been drinking the night of the fire.[55]
[53]           The previous trial was in November 2017.
[54]           AB 107 lines 25-45.
[55]           AB 107 line 45 to AB 108 line 11.
Patruno said that he assumed, but did not know as a fact, that people went into the bush opposite the houses owned by the appellant and Patruno’s mother, to drink alcohol and smoke drugs.[56]
[56] AB 111 line 28 to AB 113 line 42.
As to the events on the night of the fire Patruno said that Drayton stayed with him the whole time, and Dyke and Long stayed in the car.[57] He could not recall seeing anyone around the house.[58] He did not notice any other cars outside, but accepted it was possible that he did not see one.[59]
[57]           AB 115 lines 13-21.
[58]           AB 115 lines 23-34.
[59]           AB 115 line 45 to AB 116 line 8.
Evidence of Dyke

Dyke said that he, Patruno, Drayton and Long drove to Patruno’s house in a silver Subaru Liberty wagon. He and Long remained in the car while Patruno and Drayton went inside to grab some things. The car windows were down. Dyke asked Long if he could smell petrol, and Long agreed. A little bit later he “just felt … or heard this big bang”. He looked around and the house was on fire. They got out and had a look around. He told Long to call the fire brigade.[60]
[60] AB 138-139.
Dyke started walking to the front gate. Someone came running out. Dyke “stopped to see if he was all right, asked if he was okay”. He ran straight past him and “then he just kept running, so I just left him”.[61] He described the man, what he saw, and what happened:[62]
[61] AB 139 lines 25-42.
[62] AB 140 lines 7-37.
“And what were your observations of that person?---Grey stubble. Like, short – like, a unshaved beard sort of thing. He looked older – a bit older, and he had a grey hoodie on with jeans, I think, and a backpack. Okay. Did you say anything to that person?---I just asked, “Are you okay” and, like [indistinct] “Are you okay? What’s happened?” And then he just kept walking. He didn’t look up at me or anything.
Okay. So you said he was walking?---Yeah, quick paced walking out. Okay. Did you see anyone else at the property at that time?---Not at the property.
Okay. So after you saw that person, where did he go?---He walked went?---Nah, once he went past me and ignored me I just kept looking at the house.”
past me towards this way, like, towards the corner.
Yep?---And then once he got a bit further past, he started to speed up,
and I stopped looking. I didn’t chase him or anything …
…
Dyke said they returned to the car. He was not aware of other cars parked in front of the houses, nor driving along. He did not hear any yelling. People were gathering in front of the house.[63]
[63] AB 141.
Dyke said they were there about 15 minutes. They left before the fire brigade arrived but he knew they were on their way. They then went camping.[64]
[64] AB 142.
In cross-examination he was taken to his statement which said that it was Long who first commented on the petrol smell, but that Dyke smelt petrol. Dyke said that could not now recall who made the comment first as it was three years ago.[65]
[65]           AB 142 lines 31-45.
[45]      He said that when they left they drove to the waterfront and then on to the camping area. They did not go anywhere else and did not look for the person who was running.[66]
[66]           AB 143 lines 17-26.
[46]      Dyke agreed that he described in his statement what he felt after smelling the petrol: “It felt like a big gust of wind going by. It was so strong that it actually pushed my head forward, and I didn’t – but didn’t throw my head forward violently or hurt.”[67] He tried to explain that it “wasn’t force or anything like that … It was more of a push”.[68]
[67]           AB 143 lines 45-47.
[68]           AB 144 lines 1-7.
Dyke said that after they returned from camping his mother said he should speak to police, so he did of his own accord, about two or three days later.[69] He gave his statement to Weare.
[69] AB 144 lines 11-22.
Dyke said he was still in the car when he turned around and saw the house on fire. There were flames coming out of the house and bits of the house falling onto the ground.[70] He saw a man coming out of the front gate and he walked right past Dyke.[71]
[70] AB 145 lines 11-16.
[71] AB 145 line 27 to AB 146 line 2.
Dyke said that before arriving at Patruno’s house the four friends had been at a skate park.[72] He was asked about the route taken when they drove away, which he said was to the end of the jetty road then towards Red Beach. He said they were not looking for anyone in particular, and not looking for the person seen to be running away.[73]
[72] AB 215.
[73] AB 215 line 35 to AB 216 line 2.
Dyke accepted that there were “little details” that differed between his statement and the two occasions he gave evidence.[74] He did not agree that the differences were significant, for example precisely how far away from the boundary line he was, and precisely where he was when he saw the running man; also just who it was who smelt petrol first.[75] He reiterated that he saw the running man come out from the property, and as he walked over the man passed him close by, and Dyke asked him if he was okay. Dyke rejected the suggestion that whatever version of his evidence he gave, he was a liar.[76]
[74]           AB 216 lines 4-7.
[75]           AB 217-222.
[76]           AB 222 line 23.
Dyke rejected the suggestion that Weare had told him what the questions would be.[77] He then confirmed that it was his mother who prompted his going to be interviewed by the police, not some thought that his car registration number might be traced, or that he had been involved in criminal behaviour.[78]
[77] AB 223 lines 1-9.
[78] AB 225-226.
Dyke agreed that his relations with Patruno had since collapsed and they now hated one another.[79]
[79] AB 226 lines 7-14.
He confirmed that he saw Patruno and Drayton enter Patruno’s house, and saw them come out the front gate.[80] After they went inside to get camping gear the next time Dyke saw them was when they were outside standing next to him.[81]
[80] AB 226 lines 30-35.
[81] AB 228 line 3.
Dyke accepted that it was possible there were other cars driving past as he was not looking out for them.[82]
[82] AB 229.
Dyke was cross-examined about his criminal history which, he said, was all for drugs.[83] All of it post-dated the fire.[84]
[83] AB 231 line 27.
[84] AB 231 line 22 to AB 232 line 2.
In re-examination Dyke said that Weare had not told him what to say at all, nor did he suggest that Dyke change any content. The statement was given by Dyke telling him what happened, and Weare writing it down.[85]
[85] AB 232 lines 26-41.
Evidence of Trindall
Trindall’s evidence was in three forms: a recorded police interview,[86] a pre-recorded session on 30 November 2017 at the previous trial, and an appearance via closed circuit television during the present trial. All three were played for the jury.
[86] Transcript at AB 965.
In her police interview Trindall (then 12 and a-half years old) said that she and Freeman had been at her grandmother’s house and they left and were heading down to the jetty. They then heard “this big bang”. She looked up and saw smoke and “heard little pops”. They went to see what it was. She described seeing a “person that was running, he was wearing … everything black even the motorbike and he went and turned towards the jetty”. She was “not sure if he turned in any streets ‘cause we didn’t look back after that … and we saw no number plates either”. She said they stayed between 10 and 20 minutes and then headed down to the jetty.[87]
[87] AB 967-968.
She described the man: “I could only see like under his nose and down … he could’ve been wearing a black hoodie or a black hoodie and cap or just a cap” … But he definitely had long clothes on”.[88] He “just kept running … he quickly got his motorbike and then he took off ...”.[89] They were only about three metres from him.[90] She subsequently recalled that he also had a black bag, half on his arm.[91]
[88]           AB 969.
[89]           AB 969 line 56.
[90]           AB 970 lines 20-36. In her interview she demonstrated her estimate of a metre by using her outspread hands.
[91]           AB 974 lines 1-18.
She said that when they heard the bang they were at the kindergarten, which was about four minutes from where the fire was.[92]
[92] AB 969 line 23.
Asked to describe him further, she said he “had like a big jaw thing like his jaw was pretty bulgy … Amy saw that he had like an orangey-red beard”. However, she did not see the beard.[93] She said that “all I pretty much remember ‘cause it happened in a flash” was that “he was wearing black and him running”.[94] She described the motorbike as not like a Harley. She said it had no numberplate.[95] Asked to describe it she said:[96]
[93]           AB 970 lines 44-55.
[94]           AB 971 lines 9-11.
[95]           AB 974 line 45.
[96]           AB 974 lines 50-55.
“It was just plain black. He hopped on it. We like looked behind to see if we could get the number plate number and … we saw the red light on it but there was no number plate at all like you know how it reflects? Yeah we saw nothing …”.
At the present trial Trindall confirmed the truth of what she had said on both previous occasions. In cross-examination she said she did not actually see the person getting on the bike.[97] At the scene of the fire her cousin (Ethan Spinks) and uncle (Mick Spinks) walked past going back to Trindall’s grandmother’s house.[98]
[97] AB 164 line 34.
[98] AB 166 lines 1-6, AB 167 lines 3-4.
Trindall was asked how long it took to get to the house on fire, and said:[99]
[99] AB 169 lines 4-6.
“I was at my nan’s and I heard this big bang. And I was, like, “Fireworks” and I ran down the street and I seen a person run towards the bike and then I seen this huge flame and big pile of smoke just, like, rising up.”
Asked in cross-examination to describe the man running away, Trindall said he had a darkish beard and “we thought he was wearing a beanie”.[100] She was then asked to describe the beard:[101]
[100]         AB 169 lines 16-22.
[101]         AB 169 lines 23-44.
“Yeah. What was the beard like? Describe the beard for me?---I don’t know how to explain. It’s probably – I don’t know. Like, a goatee practically. Yeah. That’s what we thought [indistinct]
You’re indicating – you’re moving your hand – because obviously the – the video can’t [indistinct] you’re moving your hand to indicate a long – longer beard; is that fair? How many - - -?---Probably, like, to here.[102]
[102]         At this point she held her hand under her chin, about one hand width down.
Okay. So you’re – I don’t know, your Honour, if your Honour just watched. Can you just indicate that again.[103] Down to – no. Just a moment ago, you put your hand down – yeah. Okay?---Yeah.
[103]         At this point she did so, using her thumb and index finger, about 75 mm apart, and from her chin.
HER HONOUR: So down to about - - -
MR COUGHLAN: So, okay, you’re probably indicating about six
inches.
HER HONOUR: Maybe longer. Down to about the chest.[104]
MR COUGHLAN: Down to the chest. So maybe - - -?---Yeah.”
[104]         At this point she was holding her hand and indicating mid chest.
Trindall said she was pretty confident the bike had no numberplate,[105] and confirmed what she had said previously that she could not see the reflection of a numberplate and thought it had probably been removed.[106]
[105] AB 170 lines 40-42.
[106] AB 172 line 33 to AB 173 line 20.
She was asked about the carpark next to the day care centre or kindergarten, and said she only saw “hardly any”, “about four”, cars there and only one motorbike.[107]
[107] AB 174 lines 16-26.
She said she saw Patruno at the scene of the fire. He was carrying some pillows and getting into a white car which was parked on the grass at the front of the Patruno’s house. The car then left. That was about 10 to 20 minutes after she arrived there.[108]
[108] AB 174 lines 32-36, AB 176 lines 7-30.
The appellant cross-examined Trindall on her criminal history, which consisted of a number of Children’s Court appearances in relation to drug offences, wilful damage, burglary, stealing, receiving tainted property and other offences of dishonesty. All the offences post-dated the house fire, and occurred when she was 14 to 14 and a-half years old.[109]
[109] AB 178-179.
Trindall’s recorded evidence from the previous trial was played for the jury.[110] It was substantially the same as in the present trial. She also said: (i) she saw Patruno leaving in a car which had been parked at the front of his house, about 10 minutes after she got there; (ii) the carpark at the day care centre only had a couple of cars in it; (iii) the area around that car park was less visible than the area outside the houses at 60 and 62 First Avenue; and (iv) she had spoken to uniformed police at the fire.
[110] Exhibit C. It was given on 30 November 2017.
Evidence of Freeman
Freeman’s evidence took the form of a pre-recorded police interview when she was 16, and oral evidence by video link at the trial.
In the police interview Freeman said that she and Trindall were walking along a street when “we seen someone running and so we were confused … So we looked down right away and it was a house on fire. Thought it was fireworks at the start … and then we looked up and it was smoke”. The man “jumped on a motorbike and … drove off down to the jetty way”.[111] He was dressed in black.[112] He also had a black bag on his shoulder, which she described as like a Nike shoulder bag.[113]
[111]         AB 957 lines 45-60.
[112]         AB 958 line 32.
[113]         AB 960 line 23; AB 963 lines 36-45.
Freeman said she thought the man had a beard and the bike, which was black, did not have a numberplate.[114] Freeman described the bike as being like one that her family owned, and which her mother called a “Ninja Bike”.[115] Shortly after that she said she thought the man “looked like he had a beard”, and was wearing a hoodie or a hat, and no gloves.[116]
[114]         AB 960 lines 27-34.
[115]         AB 961 lines 13-28.
[116]         AB 964 lines 16-23.
In her oral evidence at the trial Freeman confirmed the truth of what she had said in the interview.
In cross-examination she was asked about the beard and said that “it wasn’t a long beard, but it was a medium kind of just scruffy beard”, a little less than 15 centimetres in length.[117] She said it wasn’t stubble and she did not see its colour.[118] She confirmed that she looked at where the numberplate would be and did not see one.[119]
[117]         AB 187 lines 32-43.
[118]         AB 187 line 47 to AB 188 line 3.
[119]         AB 188 lines 5-12.
She said that at the scene of the fire there were others around including some who were friends of Trindall.
Evidence of Spann
Spann lived on the same street. She was just about to sit down for dinner with her parents and partner[120] when they were interrupted:[121]
[120] Harwood.
[121] AB 197 lines 13-24.
“I arrived home after work, just about to sit down for dinner, and I heard an explosion. So my first instance was to run outside, and to the right I seen the blaze of the fire up in the right, and then straight ahead of me I seen someone running in the distance in the dark.
Okay. Could you describe that person?---It was really hard. It was really dark. All I could remember is just a tall guy, maybe in like a black leather, but my whole instance was to run, so I just did what I did, call out asking if everyone – if it was okay and, yeah, just straight away I ran straight to the house.
When you called out, was there a response?---No.
And did you see anyone else running at that time?---No, no.”
She got out of her house within about 10 seconds.[122] She saw the running man straight away, and watched him for about 15 or 20 seconds.[123] Then she ran to the house which was “pretty much incinerated”. She saw two leather gloves on the ground, out at the front.[124] People gathered at the fire. She noticed only one car parked nearby and that was one which had some kids getting into it.[125] She stayed until the fire brigade arrived, but left before the police got there.
[122]         AB 199 line 5.
[123]         AB 198 line 12, AB 199 line 8.
[124]         AB 198 lines 21-26.
[125]         AB 198 line 44.
In cross-examination she was asked about the car outside, which she described:[126]
[126] AB 200 lines 31-34.
“All I could notice was kids – they were all getting into a car, but all I could notice was a kid was complaining about – something about being – he couldn’t believe this has happened, and he was still a little bit aggressive about it and got in the car with his friends and drove off.”
She said that the kids were about 18, and stayed about 10 to 20 minutes.[127]
[127] AB 200 lines 39-46.
Spann said her house was about 200 metres away and she felt the explosion as a vibration through the timber floors.[128] She confirmed she called out the running man and he did not respond.
[128] AB 202 lines 1-6.
Evidence of Harwood
Harwood was Spann’s partner. His gave evidence as to what he experienced the night of the fire:[129]
[129] AB 206 lines 10-32.
“Can you tell me what you were doing that evening?---I think it was about 6 o’clock that evening. We were just sitting around getting ready for dinner. I think we heard a loud explosion that pretty much shook the house. Dayna’s father thought it may have been a gas bottle, so he quickly ran out back. Me and Dayna went out the front, and in the distance we could see, like, glowing from a fire. We then started to walk out towards the house. We saw someone running in the opposite direction of the house.
Can you describe that person that you saw?---It was just a male figure. He looked like he had a jacket and pants like jeans and that on, but it was dark, so I couldn’t really tell what colour or anything like that it was. I’m pretty sure Dayna yelled out something on the words of, “Are you okay? What’s going on?” There was no reply. And then I proceeded – well, we both proceeded towards the direction of the house and, as I was walking that way, I was calling the – triple 0.
When you saw the male person, did you see whether he was carrying anything?---Yeah, I think he had a backpack over his shoulder.
And how far away would you have been from him when you first saw him?---I think it was probably about 20 to 30 metres away.
And how long did you watch him for?---It would have been 30,
40 seconds, something like that.”
He could recall someone pointing out some gloves on the ground. He thought they stood at the fire for about 10 or 15 minutes.[130]
[130] AB 208 lines 3 and 25.
Nothing of consequence arose out of his cross-examination.
Evidence of Blakers
Blakers lived on an adjoining property. At the time of the fire she was in high school. That night she described what occurred:[131]
[131] AB 579 lines 1-23.
“Okay. Can you explain what happened that evening?---That evening, from what I recall, I was outside hanging washing out and I’ve walked back inside to go sit back down at the TV, and I’ve heard a massive loud bang and it felt like a – a tree had fallen on our house. I’d walked back out the back to see what it was, seeing the massive orange flame coming from up behind my yard and I’ve walked straight back out the front to my front yard to leave to see if it was Bee’s[132] house, which was a friend of mine on the corner. And as I’ve run out my gate and up the street, I’ve seen a man jog across the top of our street, which is First Avenue, I believe.
[132] A reference to Patruno’s mother, Bianca Patruno.
Yeah?---And he’s run along. I assume it was a man because it was a man figure. He’s run along the top of it and into a cul-de-sac that links up with Bonham Street. And I’ve seen a taillight and I’ve heard a motorbike or what I thought was a motorbike start up and drive off.
Okay. Is that man you saw, are you able to describe what it is you saw?---Black beanie or black hat, black long sleeve shirt, black pants and it was like a glisten underneath his jawline, what I assumed to be stubble or a beard.
Yeah. Were there any – was there any lighting in the area at that time?--- There’s an orange streetlight, I’m not too sure if it’s still orange, but there’s a streetlight at the end of the street that he’s run or ducked underneath before going into the cul-de-sac.
And how long did you see that person for?---Ten seconds, 10 to
15 seconds.”

By the time the fire brigade and ambulance arrived there were other people watching.[133] As she ran up her own street the First Avenue she spoke briefly to Patruno’s mother.[134]
[133] AB 581.
[134] AB 581 lines 10-34.
In cross-examination Blakers said that she reached the house of Patruno’s mother no more than about two minutes after the explosion.[135] She did not see Patruno or speak to him.
[135] AB 582 line 29.
She was asked why it was that her statement came two years and ten months after the fire. She said she had moved away from Bribie Island and had only just returned when Mrs Patruno prompted her to speak to the police.[136]
[136] AB 584 lines 4-9.
Evidence of the first responders
[88] Senior Constable Bird and Constable Golinski (attached to Bribie Island police station) were the first police officers on the scene. The fire brigade were already there.
Bird said they received a call to attend the fire at about 6.19 pm and they were there at 6.32 pm. CCTV dash-cam from inside their vehicle recorded their journey to the fire. It captured images of a motorbike passing them at 6.25 pm on the Bribie Island Bridge.[137]
[137] Exhibit 14.
When they arrived there was a crowd of people. Bird was directed to a pair of gloves on the ground. The gloves were separately bagged in clip seal bags and put into the police vehicle. Both officers took photos at the scene. They remained there until 8.30 pm. At about 7.10 pm other officers arrived,[138] and Weare at about 7.30 pm.
[138] Scenes of Crime Officer Pankhurst, Senior Constable Hand and Senior Constable Seddon.
Bird ascertained who owned the property. From that he got the appellant’s address for his home, and rang the number linked to that address. He spoke to the appellant’s wife, but was unable to speak to the appellant.[139]
[139] AB 243.
When Bird reviewed the dash-cam footage he captured the image of the motorbike crossing Bribie Island Bridge, but he could not identify it and so could not determine if it had anything to do with the fire.[140] The Moreton Bay Regional Council had CCTV on the bridge but he did not enquire of them as to obtaining that.[141] The motorbike on the police dash-cam was the only bike Bird saw when reviewing the footage.[142]
[140]         AB 248 lines 24-29.
[141]         AB 248 lines 33-45.
[142]         AB 249 lines 1-8.
Bird was cross-examined about whether he was told certain things by Weare at the previous trial.[143] He said that while he waited to give evidence on the previous occasion other officers were there. He could recall Weare, Harris and Driver being there from time to time.[144] He could not recall any conversation with Weare.[145]
[143]         AB 250-251, 257.
[144]         AB 257.
[145]         AB 251 lines 14-22; AB 252 lines 5-10; AB 257 lines 44 to AB 258 line 1.
Golinski gave similar evidence as to arriving at the scene of the fire and being directed to some gloves on the ground. He spoke to Trindall and Freeman, a man called Houseman, Spann, Harwood and Mrs Patruno, noting their details and a brief version of events. At about 8.15 pm a line was formed and a search conducted from 60 First Avenue down to the child-care centre.
In cross-examination Golinski said he did not know Patruno and had no dealings with him. On the way to the scene they passed a number of cars, but saw nothing suspicious. When he reviewed the dashcam footage he noted the motorbike and said he believed there was a car behind it. He agreed it was possible that the Council CCTV might have shown who was following the motorbike.[146]
[146] AB 263.
Evidence of Officers Cole and Slater
On the night of the fire Cole was stationed at Burpengary, and working with Senior Constable Slater. They were asked to attend the appellant’s address at Narangba and inform them that their house at Bribie Island had burned down.[147] They went there about 7.30 pm and spoke to the appellant’s wife for about 10 minutes. The appellant was not home. During the conversation Mrs Coughlan unsuccessfully attempted to contact the appellant. When they told her what had happened she seemed surprised and was shaking.[148] After that Cole had no further involvement. Slater’s evidence was to the same effect.
[147] AB 275.
[148] AB 276 line 16.
In cross-examination Cole said that when they told her she was distraught.[149] Slater had the conversation with Mrs Coughlan and asked if she owned the property at Bribie and whether she knew where the appellant was. Mrs Coughlan said the appellant was out with friends and that the house had just been renovated. She was surprised when the police arrived, then upset when told about the fire.[150]
[149] AB 277 line 9.
[150] AB 278 line 24.
Cole was asked whether he had discussed his evidence with Weare, either last time or this time, and he said no.[151] He agreed that at the previous trial he described Mrs Coughlan as being upset and hard to understand in her answers.[152]
[151] AB 280.
[152] AB 282 lines 6-21.
In cross-examination Slater confirmed that he had been told about the appellant having made a complaint against Weare. He had been told that by Weare, after the previous trial. Slater was unsure where he was when he was told that, or who else was present. However, he said it “wasn’t much of a conversation”, but more of a “passing comment”.[153]
[153] AB 401 line 16.
Evidence of Caboolture police officers
Several police officers from Caboolture police station were called as to the events on the night of the fire.
Evidence of Constable Pilgrim
Pilgrim was stationed at Caboolture on the night of the fire. At about 9 pm the appellant arrived. He was agitated and his clothing was burnt. There was strong smell of burnt clothing.[154] Pilgrim spoke to Constable Burgess, and an ambulance was called. Acting Sergeant Harris and Burgess spoke to the appellant while Pilgrim was there.
[154] AB 283.
In cross-examination Pilgrim accepted that his statement was made nine months later.[155] He had not made any notebook entries and was not asked to make a statement until close to when it was done.
[155] AB 285 line 14.
Pilgrim accepted that the appellant was extremely scared and possibly in shock when at the station counter.[156] He agreed it was possible that the appellant arrived before 9 pm.[157] The appellant was taken to a room where his clothing was taken and placed in a bag, and the Queensland Ambulance Service officers attended.[158] Pilgrim came and went from that room during that process. Harris placed the clothing into a bag.[159] Pilgrim did not place anything in that bag or another paper bag.[160]
[156]         AB 285 lines 39-44.
[157]         AB 286 line 42.
[158]         AB 288 lines 15-31.
[159]         AB 288 lines 42-47.
[160]         AB 289 line 1, AB 291.
Pilgrim said he had not discussed his evidence with others at the previous trial or this one.[161]
[161] AB 290.
Evidence of Senior Constable Burgess
On the night of the fire Burgess was stationed at Caboolture. At about 9.11 pm Pilgrim made her aware that the appellant had presented himself. She looked at the time and made a note immediately after the ambulance took the appellant.[162] The appellant looked distressed, his clothing was torn in places and had ash on it, and he was burnt on the hand. The appellant showed that his back was burnt.[163]
[162] AB 292-293, AB 299.
[163] AB 293.
Burgess spoke to Harris and also by phone to Detective Eaton. The appellant was taken into a room by Harris and the ambulance officers. Burgess remained outside.
In cross-examination Burgess was asked what the appellant said when she asked what had happened. She answered:[164]
[164] AB 295 line 24.
“You explained it to me that your house had been set alight and that
you had been burnt after trying to sell a motor bike.”
Burgess accepted that the appellant may have said that someone tried to kill him.[165] She remained outside while the appellant’s clothing was taken and she did not see what was in the bag.[166] She accepted that when exhibits are taken it is the normal practice to tape or staple the bag.[167] She said there was a property store at Caboolture police station where the bag of clothing could have been lodged.[168] She did not add anything to the bag,[169] and did not see anyone other than Harris deal with it.[170]
[165]         AB 295 line 37.
[166]         AB 296.
[167]         AB 297 lines 29-32.
[168]         AB 298.
[169]         AB 299 lines 36-46.
[170]         AB 300 line 1.
Evidence of Senior Constable Harris
Harris was the shift supervisor at Caboolture on the night of the fire. He first saw the appellant when the appellant was with Burgess, and he had a bag and some clothes with him.[171] He was somewhat dishevelled and had a burn on his left hand. The appellant had a black backpack with him.[172] He seized the appellant’s clothes and possessions.[173]
[171]         AB 302 lines 31-34.
[172]         AB 304 lines 42-46.
[173]         AB 303-304.
Harris described what he did when he got the clothes:[174]
[174] AB 304 lines 20-31.
“Okay. So can you just explain what you saw and what you did when the clothing was removed from the defendant?---Certainly. So I had a fresh brown exhibit bag that I obtained from the station. I opened that up. I asked the defendant to remove – to the best of my recollection – to remove the property, and I had him place it into the bag. I didn’t want to have too much – it’s – generally my procedure, personal procedure is not to have too much contact with the property, and I was aware that it was going to be tested or it was required for testing, so I didn’t want to contaminate anything. If I just hold the bag open, I’ll get the defendant to place the items in.
Okay?---And then I sealed the bag, so - - -
Did you have any gloves on or anything at the time?---I don’t believe
I did, no.”
Harris said he did not search the backpack thoroughly but would have had the appellant open the backpack so that Harris could visually inspect the contents.[175] Everything was put in the paper bag, which had a property receipt that would have been stapled to the top.[176] The top of the bag was “scrunched up” … or folded”, and then stapled.[177] The bag was then placed next to Harris’ desk, and stayed with him until passed to detectives.[178] The bag remained in Harris’ possession the whole time,[179] and remained in his sight.[180]
[175]         AB 305 lines 1-3.
[176]         AB 305 lines 8-21.
[177]         AB 306 line 21, AB 313 lines 10-15.
[178]         AB 306 lines 24-40.
[179]         AB 307 line 9.
[180]         AB 308 line 11.
Harris was asked if there was a reason why the bag was not lodged. He answered:[181]
[181] AB 307 lines 11-21.
“Okay. Is there a reason why you didn’t lodge it at the property point?--- I wasn’t the lodging officer. If it was my property and I was to lodge the property, there’s different sealing procedures. But I was simply just sealing the property and maintaining – or holding the continuity of that until I handed it over to the investigator. And then they would do with it as they see fit and eventually lodge it. So - - -
Okay. And all of that clothing was placed in the brown – that paper bag together?---That’s correct.
Yeah?---Yeah. Everything was. Yeah.”
The bag was handed to Detectives Harbers and Sowden in the form in which Harris had kept it.[182] Harris said it was not his job to lodge the property in the bag, but to hand it to the detectives when they arrived.[183]
[182] AB 307 line 41, AB 321 lines 17-23.
[183] AB 323 lines 1-5.
In cross-examination Harris said he did not believe he was wearing gloves.[184] The appellant put to Harris that he lied in giving his account that it was not Harris but rather the appellant who put the items in the paper bag. Harris responded:[185]
[184] AB 310 lines 16-19.
[185] AB 310 lines 34-40.
“What do you say about that?---Well, look, all I can say is – give my evidence to the best of my recollection. And my recollection is I held that bag open. I had no reason to touch your property. My – the reason for seizing that property was for forensic analysis. And – but the last thing I want to do is contaminate it by handling it. If I’m seizing the property, I’ll hold that bag open. And my recollection is that’s exactly what I did, and I asked you to place those items – or you simply placed those items into the bag for me.”
Harris agreed that best practice would have been to seal the exhibit bag, and it could have been sealed better. However, his intention was that whatever was in the bag was not lost or misplaced. He said that “Nothing could’ve been taken from the bag. Look, I didn’t have my eyes on it 100 per cent. It was next to me. … It was in my periphery. I certainly didn’t leave the room. … The bag was always with me.”[186] Harris said that the bag was “sealed fairly tight with staples”. However, responding to a hypothetical scenario put by the appellant, namely that there was a corrupt police officer there, Harris accepted that in such a case it small item could be inserted between the staples:[187]
[186] AB 319, AB 321 lines 32-37.
[187] AB 321 lines 4-15.
“Yep?---The assertion that – well, the suggestion you put to me before that there is, hypothetically, out there, one bad apple, one corrupt police officer; if they wanted to place a match in that bag, if I was momentarily distracted by looking away, of course that’s a possibility. That’s something that could occur.
Yep?---There is a gap there.
And can I just – well, I say to you, officer, I’m not suggesting someone did put petrol in the bag?---Yep.
I’m just saying they could put something small, something of a small nature?---That’s correct, yep.”
Harris denied that he had not dealt with the appellant’s property in the best way possible:[188]
[188] AB 334 lines 13-27.
“… Do you accept that you never dealt with the property in the best way possible?---No, I reject that. I’ll just clarify, that room that we referred to, the key, is a room where property that is lodged is stored for safekeeping. I wasn’t lodging the property. The property that goes in that room must be lodged against our system with a barcode. The key I refer to is not a key that I retain on my person. It goes into a drawer which everyone has access to. The property in that room would be accessible by any police officer in the entire Moreton district. If they come to the station, they get access to that key. The extra work I refer to would be walking down a set of stairs to put the property in that room, putting the key back in the property – in the property drawer. And then, when detectives turn up a short time later, having to get that key back out, walk back down the stairs and get the property. I knew police were coming. I knew they weren’t far off and I knew they were coming to see me. It made no sense to put that property or lodge it – I retained that with me. And, shortly after, when they arrived at the station, I handed that property over.”
The appellant sought to put to Harris that his injuries meant he was physically incapable of putting his clothes into the bag, to which Harris responded:[189]
[189] AB 311 line 37 to AB 312 line 16.
“HER HONOUR: All right. What do you say about that? --- Look … all I can recall, sir, is that I was in that doorway and then I had you present your property and hand it to me. Now, … I don’t recall if there was some extraordinary way that you had to contort your body to get that property off, but, to the best of my recollection, sir, is there was nothing that stood out. You had ridden to the station on a motorcycle. So, obviously, there was some ability to contort your body and move and lean, for that process. And, to the best of my recollection at the time of seizing that property, you were able to remove that property without any help or hindrance. But, again … that’s my recollection, sir.
Sorry. When you say it’s the best of your recollection, does - - -?---
Yes, your Honour.
- - - mean that you couldn’t rule – you wouldn’t rule out the possibility that you helped Mr Coughlan?---No. I certainly didn’t help Mr Coughlan. But, whether he had to move into that room to sit down onto a chair, that may have been the case. But I didn’t help the defendant, no.
So – all right. So … you say definitively that you did not touch the clothing or assist him in any way. Is that your evidence?---That’s correct, yes, your Honour.
All right. It’s not the best of your recollection; it is your certain evidence. Is that what you’re saying?---Look, I can’t recall, your Honour.
All right. So you’re not certain?---Not certain, no.”
Harris denied that he had emptied the rucksack onto the table then written down the items before putting them back into the bag.[190] The appellant put to Harris that he was a liar for denying that he had emptied the items onto the table,[191] and Harris disagreed. Harris agreed that the appellant voluntarily handed over his clothes, and that he was very helpful.[192] He also agreed that there were CCTV cameras at the station and had the appellant’s arrival time been disputed early enough they could have been checked to verify the time; but he had not been asked to do that.[193]
[190]         AB 314 line 30 to AB 315 line 19; AB 351 lines 1-8.
[191]         AB 315 line 18.
[192]         AB 317 lines 30-40.
[193]         AB 318 lines 31-44.
Harris agreed that there was no mention of a red-head match in his notes, the field property receipt or the audio recording.[194] He denied that he put the match in there.[195] He was cross-examined as to evidence he had previously given on the topic of the match:[196]
[194]         AB 313 line 39 to AB 314 line 2.
[195]         AB 349 line 28.
[196]         AB 326 lines 34-46.

“And then you go on to say unless – no, I’ll read it so that:

No, look, unless that was in a pocket or some concealed space within the clothing and it’s fallen out. Look, I don’t know. What I will say, however, is that no other person had access to the bag. It was under my constant observation, next to my right leg, for the entire of the period of time from when it was seized – to you – to when I handed it to the detectives. I can assure you with 100 degree – per cent certainty that no one opened that bag and no one had access to it after I seized it from you.
Did you say that?---Yes.
And you accept today that you may have been distracted and someone, if there was a bad apple, could have gone past that bag?---Well, it’s a possibility.”

The cross-examination continued with Harris’ evidence at the previous trial, to the point when the previous trial adjourned for the day, at which point Harris agreed that the then trial judge had told him not to discuss his evidence with anyone.[197] The warning was repeated several times the next morning.[198] Later Harris was reminded of the evidence he gave at the previous trial, that when he and Weare were walking out of the courthouse after Harris’ evidence was concluded, but when Weare’s evidence had not commenced, Harris said something about the presence of the match:[199]
[197]         AB 332 lines 6-14.
[198]         AB 332 lines 30-44.
[199]         AB 342 lines 6-23.
“You said:
I just shook my head and I said, “I can’t believe”, obviously – I don’t entirely remember. I remember saying words to the effect, “I can’t believe there’s a match.”
Is that correct?---Yes.
Okay. Officer, do you accept that you’ve been given four warnings not to discuss evidence?---Well, I was [indistinct] to discuss my evidence, yes.
And do you accept that you did discuss your evidence?---No, I do not accept that. I – there was no discussion. I – the comment that I made was off the cuff. It was directly relating to a meeting that myself and two detectives were in with the prosecutor. As soon as I left that meeting, I walked out the front of the courtroom and I made a comment that related to the conversations in that meeting. Ben made no comment or reply. It was off the cuff. If that was wrong, I apologise, but at no time, as I said, have I discussed my evidence.”

The appellant then went into the previous evidence further, at the insistence of the prosecutor:[200]
[200] AB 343 lines 12-42.
“[APPELLANT]: Okay. Sorry:
I can’t believe there’s a match or something like that. I shook my head. I don’t even know whether I said –
Indistinct – “I said” – and then it’s got “indistinct”, because the typist can’t pick it up. Said:
[indistinct] in his presence, but as I’m walking, but that – that was it. It was literally about two or three words. So, those two or three words, officer, were given and discussed during evidence, while you were giving evidence yesterday, weren’t they [indistinct] That subject was discussed while you were giving evidence?---Yeah.
Yes. I’m asking you?---Yes.
Was the subject of the match discussed while you were giving evidence yesterday?---I don’t recall if the actual match was discussed yesterday, specifically.
Do you recall now that it was discussed specifically and you were advised not to discuss the evidence?---Yeah, I was advised not to discuss the evidence, yes.
All right. Okay. You went on to say afterwards:
I merely – it was kind of an accident.
Is that correct?---Yes.
So you’re saying it wasn’t intentional, but it just happened?--- Certainly not. It was just an off the cuff comment of surprise as I left the meeting. That’s right.”
Harris agreed that he took responsibility for the fact that he mentioned the match, and said that Weare had not prompted it: “Certainly not, no.” Harris rejected the proposition that there was any impropriety in his comment, explaining that it was an “off the cuff comment” and not discussing his evidence:[201]
[201] AB 344.
“Okay. I then asked you – and I’ll just summarise it, if you want me
to. I then say:

Do you think that’s in appropriate what you did?

And you said no, you didn’t think it was inappropriate; is that correct?--- Yes, like I said, my interpretation was I was – it was an off the cuff comment directly relating to the conversation that he had been part of in the office. I didn’t believe I was discussing my evidence, but, like I said, if I was misguided, I apologise. That certainly wasn’t my intention, so - - -
Okay. Did you discuss any other evidence with Officer Weare?---No, certainly not.
Okay. And, up to coming into court today, was there any other inappropriate, or what someone else might consider inappropriate, conversations between you and Officer Weare?---No, certainly not.
Or other witnesses in this case?---No, certainly not.”

Harris was then cross-examined about a conversation during the previous trial, at the conclusion of day 4 in a room in the courthouse prior to his leaving. He said that the then prosecutor’s female instructing clerk was present, as was Weare, Detective Bioletti and himself, but not the prosecutor, Mr Green.[202] He related what was said:[203]
[202] AB 344-345.
[203] AB 346 lines 4-11.
“… So, the court was finished for the day. The three of us – sorry, four of us were in that room. And I believe Detective Weare was speaking with her in relation to the general progress of the trial – where we’re at, what’s happening. We finished those sort of conversations, and then the female made comment that – to Weare that there’s been an allegation of – that you were alleging that a match has been placed into the bag. I didn’t contribute to that conversation, but I was within earshot, in that room when it was made, the comment was made, so it shocked me.”
Harris also agreed that the female clerk had said something along the lines of wanting to know:[204]
[204] AB 347 lines 25-40.
“… the witnesses that needed to be recalled, namely Harris, Pankhurst and Sowden. This included the reason why, which was the allegation put forward by the defendant that evidence was not sealed properly and that, somehow, an officer placed a single match inside, and this was to explain why the certain witnesses were needed. We, as in [the prosecutor] and I, both accepted that the story was ridiculous and that we understood the inconvenience that this was causing to all the officers.”
Harris maintained that Green was not present during that conversation.
In re-examination Harris said that the seizing of the appellant’s property had been electronically recorded, starting halfway through that process. That recording was then played to the jury, and made Exhibit 19. On it the voices of Harris, Pilgrim and Burgess could be heard from time to time, describing the property.
I have listened carefully to Exhibit 19. It records Harris saying that the clothing and motorbike would be seized, and then saying to the appellant: “So what I’ll do is I’ll get you to place … your black t-shirt into the paper bag we’ve got there.”[205] Then, shortly after, it records Harris asking the appellant to hold onto the backpack, and the appellant then explaining to Harris what was in the backpack: “It’s got car keys in it, mate. … Yep, they’re my car keys, house keys, glasses.” It seems plain from the recording that the appellant had the backpack open at that point.
[205] Emphasis added.
Evidence of Senior Constable Harbers
Harbers was the police officer who collected the bag containing the appellant’s property from the Caboolture Police Station. He arrived at about 9.55 pm. Harris gave him the bag “which was sealed”.[206] He went into another room and opened the bag with Senior Constable Pankhurst, so that Pankhurst could examine each item. Harbers removed each item,[207] and each one was repackaged in individual bags.[208] The clothing was taken by the Scenes of Crime Officer (Pankhurst).[209]
[206]         AB 354 line 13, AB 355 line 7.
[207]         AB 357 line 31.
[208]         AB 358 lines 10-13.
[209]         AB 358 lines 42-45.
In cross-examination Harbers said that it was he who removed the backpack; he said he had put in his statement that it was he who removed the backpack, but that “if there’s a photo, that should show who’s removed the backpack”.[210] When he eventually looked in it he saw a match was inside.[211] He said he did not put the match there and was not aware of anyone else who did.[212] He was shown a photograph which revealed he was wearing gloves when the items in the bag were removed.[213]
[210]         AB 358 line 16.
[211]         AB 358 lines 15-22.
[212]         AB 358 lines 38-40, AB 360 lines 9-16.
[213]         AB 361.
Harbers said that the order in which things were removed was: (i) first, the helmet; (ii) then the backpack; (iii) then, the clothing, which was underneath the backpack.[214]
[214] AB 361 lines 34-41.
Evidence of Senior Constable Sowden
Sowden accompanied Harbers to Caboolture police station. He said he and Harbers removed the items from the bag, while wearing gloves, and Pankhurst photographed them.[215]
[215] AB 365-366.
In cross-examination he said that details of what was done was later entered in the QPS running log by either Weare or Detective Sergeant Eaton. Sowden said that he did not see anything inappropriate done with the appellant’s property.[216] He said that he did not add a match to the property.[217]
[216] AB 368 line 27.
[217] AB 370 line 19.
He said he had been in a room outside the court during the previous trial, with Weare and Harris, but he could not recall anything that was said.[218] When shown a photograph of the bag, he said that it was a standard bag and that sometimes they were stapled or folded as well, but that depended on the individual officer.[219]
[218] AB 368-369.
[219] AB 370-371.
Evidence of Sergeant Pankhurst
Pankhurst was a Scenes of Crime Officer with 18 years in that division and about 13 years of general policing experience. He attended at the scene of the fire. He was responsible for receiving the black gloves which Bird had found on the ground, sealing them up and signing on the seals. He kept them in his possession until lodging them in the property room at Burpengary Police Station. He spent close to two and a-half hours at the scene of the fire. He arrived at Caboolture Police Station at 9.55 pm, having been told that someone had presented there with burns.
He took possession of the paper bag from Harris and proceeded to individually package the items that were in the bag.[220] As each item was removed it was photographed and packed into a cryovac bag. At the same time photographs were taken of the various items.
[220] AB 375.
Pankhurst identified photographs of the various items, including a backpack and its contents. Those photographs included a photograph of a redhead match. He identified a jacket, and the fact that the left pocket on the inside had some damage consistent with having been burnt.[221] He also identified the photographs of the shoes that the appellant had worn describing their appearance as being “like, a melting sort of scenario had occurred on the shoes”, caused (he thought) by heat.[222]
[221] AB 376-377.
[222] AB 378 lines 1-10.
Pankhurst said he kept the individual bags in his custody and transported them to Burpengary Police Station whether they were lodged. The only items he did not take were the helmet and backpack which were placed in a bag and left with the detectives.
On the following day he went back to the scene of the fire. One item found was a small torch.[223] Pankhurst identified various photographs showing damage to the house. He also identified the various locations where he took swabs for the purpose of forensic testing.
[223] The appellant had admitted at the trial that the torch was his: AB Vol 1 p 25.
In cross-examination Pankhurst was asked questions about whether the house might have contained asbestos and, if so, how much. He said it was likely that there was some asbestos in the house given its age, but he could not say how much.[224]
[224] AB 388.
Pankhurst denied that either he or anyone else had done anything inappropriate in the nature of putting the matchstick in the bag.[225] He was cross-examined about best practice in terms of folding, stapling or sealing the bag in which the individual items had been put. He agreed it was not best practice to have it folded and stapled as it was, and he would have preferred to have sticky tape seals with signatures. However, Pankhurst said you had to take into consideration that the bag was full and it was “a little bit impossible” to have achieved best practice.[226]
[225] AB 389 lines 32-36.
[226] AB 390-391.
Pankhurst agreed that if the items had been put together there was a possibility of transference of material from one item to another,[227] but he could not comment upon whether that would contaminate all the contents, as that was a matter for an expert.[228] He also agreed that the forensic officer who tested the items would not have necessarily been aware that the items had been re-bagged by him, but his evidence was that “it’s not going to change how she analyses those particular items, as far as I’m aware”.[229]
[227]         AB 392.
[228]         AB 392 line 29.
[229]         AB 392 line 17.
Evidence of Maxwell
Maxwell was an officer employed in the Analytical Services Unit of the Queensland Police Service. She analysed various items which were given to her, being five items of clothing, namely a pair of tracksuit pants, a pair of sports shoes, a grey and black jumper, a black t-shirt and a blue jumper. She conducted tests on them for ignitable liquid residues. Having described the process she followed, Maxwell identified the results:[230]
[230] AB 411-413.

(a) the tracksuit pants and shoes were found to contain petrol residue;
(b) both jumpers and the t-shirt were found to contain light to medium aromatic- product-class ignitable-liquid residues, consistent with trace-petrol residues;
(c) the tracksuit pants and shoes were probably in contact with liquid petrol, and the other three items were probably in contact with petrol vapours;
(d) she could not offer an opinion on the age of the contact, only that petrol residues were found;
(e) because an item such as the track pants was sampled as one whole item there was no way of telling on which part of the item the petrol was;
(f) it was highly likely that the shoes and the track pants were in contact with liquid petrol; the shoes had a higher level of reading than the tracksuit pants;
(g) if the items had been in the one bag it was possible that some of the petrol vapours had transferred from one item to another, but highly unlikely that the petrol residue on the track pants and shoes was from cross-contamination; whilst highly unlikely, Maxwell could not exclude it as a possibility; and
(h) there was an explanation for why the shoes and track pants might have petrol residue, whereas the other items only had vapour residue; by reference to a particular journal she identified that when petrol was poured from different heights it would cause a positive result on lower garments; this particular case was consistent with what was published in that article.

In cross-examination the appellant attacked Maxwell’s expertise on the basis that she was an employee of the Queensland Police Service. Maxwell maintained that she was “here today as an independent expert”.[231] On the topic of cross-contamination she was questioned about whether it could occur if she was given only five out of 10 items from the original bag. Her response was that whilst it was a possibility that there was cross-contamination in that way the only item she would probably be concerned about “would be an open jerry can full of petrol”.[232] She identified the other items[233] and said that she would not expect to have petrol residues on them or have them cause a cross-contamination event.[234]
[231]         AB 414 line 8.
[232]         AB 417 line 8.
[233]         The motorcycle helmet, backpack and a pair of keys.
[234]         AB 417 line 19.
Maxwell explained that she could only report on the items that she was given. In respect of possible consequences in relation to cross-contamination, she reiterated that the shoes and tracksuit pants “were consistent with being in contact with a liquid petrol source”.[235]
[235] AB 418 line 28.
Cross-examination continued as to whether fumes or vapours would be left on clothes from events such as mowing the lawn, filling petrol cans or filling a car with petrol. By reference to a journal article Maxwell said that “members of the public aren’t walking around with petrol on their clothing, even if you’re filling up your car or even if you work in a profession where you’re dealing with petrol”.[236] She also discounted that what was found on the clothing could have been the product of the clothing being stored in a shed which had fuel containers in it. Referring to the fuel containers she said if they were airtight they might release a small amount of fumes, “but not enough to give the profiles that I’m seeing”.[237]
[236] AB 421 line 4.
[237] AB 421 line 31.
Maxwell also said the profiles she obtained were not consistent with other sources such as paint, varnish, methylated spirits or oil.[238]
[238] AB 422.
Maxwell also discounted the prospect that the residues she found might have been caused by contact with police officers who had been at the scene of the fire, saying it was “highly unlikely”, and that “the quantities of petrol identified on the shoes and the tracksuit pants was significant compared to the other three items which was petrol vapours … so in my opinion there was … liquid petrol in contact with the shoes and/or the tracksuit pants”.[239]
[239] AB 424 lines 14-23 and 34-44.
Maxwell was also cross-examined about the fact that the items had been put all together in one bag before being separated. She said it would not have affected the results:[240]
[240] AB 426 lines 6-13.
“Because I found petrol residues I’m not concerned about loss of evidence. If the clothing had been … not packaged correctly for a period of time and nothing was found … they’re potentially unreliable because something has been lost. But you could also consider them potentially unreliable because something could have been introduced in that time. But anything that’s happened to that clothing prior to it being submitted to me, I cannot comment on that. I can only comment on what’s been submitted to me and what I analysed.”
Maxwell was referred to evidence she gave at the first trial concerning potential unreliability of results, but said that the potential unreliability she had referred to was because she had five individual results as opposed to a single result, and it was not because of how the items had been packaged.[241]
[241] AB 426 line 26 to AB 427 line 3.
In re-examination Maxwell reiterated that the shoes and the tracksuit pants probably had liquid petrol on them, as a result of coming into contact with a liquid petrol source, whereas the other three items had been in contact with petrol vapours as opposed to liquid.[242] She also ruled out contamination from the matchstick, unless the matchstick was soaked in petrol residue. Finally, Maxwell said that she was less concerned about cross-contamination from the items being put together in one bag, than she would have been if the clothing had been in contact with an outside source like an open jerry can of petrol.[243]
[242] AB 429 line 14.
[243] AB 429-430.
In terms of her expertise Maxwell said that she had prepared about 100 statements of evidence for cases, and been involved in about 500 cases as a case officer. Of all those, she had only been called to give evidence three times because in the other cases her evidence had been accepted.[244]
[244] AB 423 line 1, AB 430 lines 17-24.
Evidence of Detective Senior Constable Bioletti
Detective Senior Constable Bioletti was the first of eight police witnesses called simply to make them available for cross-examination by the appellant.[245] Bioletti was the officer investigating the vehicle fire that occurred on 12 April 2015. He gave evidence that he had conducted the investigation independently and in conjunction with other sources, and professionally.[246] Points arising from his cross-examination included the following:
[245] Four of those (Bioletti, Robson, Montero and Driver) were involved in the investigation of the arson on the appellant’s car. One (Beddoes) had contact with the NRMA, and the final one (Murray) was involved in the disclosure of document by the QPS.
[246] AB 448.

(a)

the investigation into the car arson was an ongoing one, in which the appellant was a suspect;[247]

(b)

he contacted the appellant about that arson on 2 July 2015; the delay on his part was that whilst the file was with him in May 2015, the office was inundated with other investigations which had priority;
(c) the earlier part of the investigation was being conducted by Bribie Island police;

(d)

in relation to CCTV footage, he asked Sergeant Driver to ensure that he obtained it from the Caltex service station, Driver did so, and Bioletti believed that it had been reviewed but found to have no evidentiary value;[248]

(e)

in terms of information requested by the appellant, the appellant was advised that he had to be specific in what he required, and the police were given guidelines as to what was required, and it was provided;[249]

(f)

in the conversation on 2 July 2015 Bioletti advised the appellant that he (Bioletti) had two suspects or persons of interest that he was coming to Bribie Island to see;[250]

(g)

the two suspects referred to in the conversation on 2 July 2015 had been provided by the appellant;[251]

(h)

Bioletti accepted that it was his responsibility to look into the CCTV footage of possible leads; he followed up a particular witness with a surname Kelly and took a statement from him;[252]

(i)

Bioletti interviewed a local resident of the area who identified that five youths were seen, shortly before the car arson, heading towards the service station;[253] no names were mentioned by the witness, but simply the fact that some youths had approached him and given him a cigarette;

(j)

as to the CCTV footage and the youths that had been identified, at the time the Bribie Island police were conducting the investigation they mentioned to Bioletti that they had made contact with some persons and a lot of those persons were cleared of having any contact in relation to the incident;[254]

(k)

Bioletti agreed that at some stage he formed the opinion that the appellant had been responsible for the arson of his car;[255]

(l)

in relation to the house arson, Bioletti said that he provided some information to the officers involved in that investigation, made enquiries and talked to witnesses, and tried to have both arsons connected; he recommended that the appellant be charged with the car arson; the result of the recommendation was a direction not to proceed with any charges;[256]

(m)

Bioletti had suspicions in relation to the house arson that led him to contact Dixon Homes and investigate their involvement;[257] and

(n)

the Dixon Homes aspect[258] was investigated and found not to provide any support, and therefore discounted.[259]
[247]         AB 449 lines 31-45.
[248]         AB 451.
[249]         AB 451.
[250]         AB 453.
[251]         AB 454.
[252]         AB 457.
[253]         AB 459.
[254]         AB 460.
[255]         AB 463.
[256]         AB 467.
[257]         AB 467-468.
[258]         This was a lead that suggested that the appellant was intending to put a Dixon Homes house on the land which would have required the existing house to be moved or demolished.
[259]         AB 469.

(a)

he and Eaton were at the scene of the fire at about 7.30 pm, at which time other police and the fire brigade were already there;[560]

(b)

that night they interviewed Trindall and Freeman, and other witnesses were being interviewed by other officers at the Bribie Island Police Station;[561]

(c)

that night they saw the appellant at the Caboolture Hospital; by then his clothing and the motorbike had already been seized;

(d)

he obtained CCTV footage from the council, relating to the Bribie Island bridge, eliminating other cameras as being irrelevant because they were not focussed on the roadway;[562]

(e)

he checked the local High School and the Childcare Centre for relevant CCTV footage, but they had none;

(f)

he spoke to people at the scene of the fire, though not Patruno or Dyke who had left by then;
(g) by 22 July he had Dyke’s statement, taken at the police station;[563]

(h)

he obtained the CCTV footage from the Narangba pub, showing the appellant’s utility parked there on the afternoon of the fire;
(i) he spoke to the appellant’s wife on 22 July;[564]
(j) by 22 July he had taken five statements;[565]

(k)

having obtained the photograph of the motorbike going over the bridge he looked to establish the time of sunset for that day;[566]

(l)

he did a Telstra search in relation to the appellant’s mobile phone and a “lantern analysis”;[567] he then examined the texts on that phone;
(m) he seized the appellant’s phone and computers;

(n)

he followed up the suggestion that the appellant had been interested in moving the existing house in order to put a new one on the block, saying he did not ever believe that suggestion;[568]

(o)

he attempted to take statements from Long and Drayton; he went to McDougall’s house, only to find that Drayton had moved to New South Wales at a unknown location; Long had also moved to New South Wales but when he returned to Queensland Weare spoke to him and Long agreed to do a statement; before it could be taken Long went back to New South Wales.[569]
[560]         AB 750.
[561]         AB 750 line 22.
[562]         AB 751.
[563]         AB 866.
[564]         AB 792-793 and AB 804-808.
[565]         AB 806 lines 16-20.
[566]         AB 839 line 31.
[567]         AB 876 line 44 and AB 891 line 1.
[568]         AB 874 line 26.
[569]         AB 898.

There were things put to Weare and which he agreed that he did not investigate. They included the following:

(a) he did not enquire at the local church, of its priests or parishioners;[570]
(b) he did not investigate the possibility of identifying other cars following over the bridge;[571]
(c) he did not obtain CCTV footage apart from that relating to the bridge;[572]
(d) he made no enquiries in respect to the tow truck driver;[573]
(e) he did not speak to Channel 7, but explained that was because he had spoken to the relevant witnesses directly;[574] and
(f) he did not interview the neighbours who had looked after the appellant’s house (called Brooks), even though it seems they could only have spoken about the state of renovation.[575]
[570]         AB 840 line 37 and AB 842 line 43.
[571]         AB 844 line 22.
[572]         AB 844 line 36.
[573]         AB 856 line 27.
[574]         AB 857 line 18.
[575]         AB 868 line 30.

In my view, the so-called deficiencies do not impugn the quality of the investigation. True it is that Weare always considered that the appellant was the prime or only suspect, and did not investigate the possibility that someone else might be a suspect.[576] However, when asked about that he did say that there were a couple of lines of enquiry raised but he was in the process of answering “they seemed sort of …” when the appellant interrupted his answer.[577] Looking at the things not done, there are good reasons to see why there were not done, and why the absence of doing them had no material impact:
[576] AB 856 lines 3-6.
[577] AB 856 lines 3-6.

(a)

the review of the evidence concerning where the appellant parked the motorcycle and the descriptions given by all those who saw a man running on the night (see paragraphs [305] to [319] above) makes it clear, in my view, that there was no other bike and there was no other man, either there or running; therefore enquiries at the church, or of its priests or parishioners would have been pointless;

(b)

similarly, that that same review of the evidence establishes, in my view, that there was no pursuit of the appellant; therefore attempting to investigate other cars supposedly following him over the bridge was pointless;

(c)

for the same reason, CCTV footage apart from that concerning the bridge would add nothing;

(d)

there was no credible evidence at the trial that the dispute between the tow truck driver and NRMA over his fees for towing the burned out car could have translated into anything concerning the house arson; that driver’s anger was directed at the NRMA not the appellant;

(e)

there was no point interviewing the neighbours called Brooks, as the only source of information that was suggested they might give was as to the state of renovations of the appellant’s hours, a matter not in issue at the trial;

(f)

the failure to obtain statements from Drayton or Long was explained; Drayton had moved to an unknown location; as for Long, Weare spoke to him and he was agreeable to providing a statement but went back to New South Wales before that could happen; the appellant only ever identified that there was one person shouting or screaming at him, while standing beside a car; that was plainly Dyke, who said that Long had remained in the car; the statements of Patruno and Dyke, given in circumstances where there was no possible collusion about their contents, and in circumstances where there was enmity between Patruno and Drayton and Drayton and Dyke, suggests that the absence of statements from the other two did not fatally compromise the investigation; that is particularly so, given that Patruno’s statement was supported in a material particular by the evidence obtained from Trindall on the night of the fire, namely that she had seen Patruno there about 20 minutes after she arrived, which time he was getting into a car with pillows in his possession “grabbing his pillows and stuff”; and

(g)

the handling of the appellant’s item of clothing was not something Weare was involved in; the review of the evidence as to that matter (see paragraphs [100] to [141] above) shows that it did not materially impact upon the quality of the investigation; in that respect Maxwell’s evidence that the cross-contamination could only go one way,[578] and (inferentially) not from the match (see paragraphs [337] to [370] above), was important.
[578] From the shoes and track pants to the other clothes, and not vice versa.

The appellant also complained that the NRMA was not even handed in its treatment of the appellant. Even assuming that to be so, it is not something in control of the police investigation.
It is also true that Weare and others expressed a dislike of the appellant, even to the point of Weare using the word “hate” in respect of him. However, the appellant was evidently a difficult person to deal with, belligerent and threatening in terms of complaints about police conduct. His first interview with Weare and Eaton contained a number of instances where he proclaimed the success and frequency of his complaints about police behaviour in the past, and having had a police officer sacked. His reaction over the issue of who spoke to his wife first, on the night of the fire, could not endeared him to the investigating police. The real question here is whether the police officers personal views somehow impeded the quality of the investigation. For the reasons set out above I do not accept that to be so.
Conclusion
The jury were confronted with a dilemma which they had to resolve in terms of the assessment of the evidence overall. On the one hand they had the interviews with the appellant, in which he steadfastly denied any involvement and said that he was never in the house on that afternoon. And there was no obvious financial motive to carry out the arson.
On the other hand, the expert evidence established that the explosion was as a result of vapour, it originated inside the house, and at some point the appellant’s tracksuit pants and shoes came into contact with liquid petrol. That contact with petrol could not have been as a result of the casual activities of filling a car at a service station or mowing the lawn or storing the clothes in a shed. Because the appellant did not give evidence, there was no basis upon which the jury could have concluded that any such thing was possible.
Therefore, as against the appellant’s denials of involvement, and as well the lack of obvious motive, there was very powerful evidence from the scientific experts that the appellant’s shoes and tracksuit pants had been in contact with liquid petrol within hours before the items were tested.[579] What, then, is the explanation for the appellant’s having come into contact with liquid petrol on his tracksuit pants and shoes on the afternoon that his house burned down as a result of a vapour explosion. In my view, the obvious response is that the appellant was involved in distributing petrol which led to that explosion.
[579] Maxwell’s evidence, based on studies by a colleague, was that the petrol residue degraded after about four hours: AB 412 lines 16-24.
Further, the mere fact that the appellant’s shoes and tracksuit pants were in contact with liquid petrol that afternoon was a powerful piece of evidence compelling rejection of the appellant’s version that he was not in the house at any time that afternoon. On the appellant’s account given in the interviews there was no occasion that day when his shoes or tracksuit pants could have come into contact with liquid petrol. The two versions are simply irreconcilable, but there was compelling support for the presence of the petrol from Maxwell.
The scientific evidence that the appellant’s shoes and tracksuit pants exhibited contact with liquid petrol then brings into significance the evidence of Patruno and Dykes, that they could smell petrol. The appellant was the only person seen near the house that afternoon. He was not chased by another man, nor followed on the motorbike. The dash-cam footage gives no support at all to that notion. His account of riding many kilometres to the Bruce Highway before doing his suggested series of left and right turns in order to avoid the pursuit could rightly be seen by the jury as fanciful. Likewise the unaccounted period of several hours until he presented at the Caboolture Police Station.
The lack of an obvious financial motive was but one factor which the jury had to weigh. They were told to bear in mind that the appellant had lost personal items in the fire, which added to the lack of financial motive. However, lack of motive is not fatal to the conclusion of guilt.[580]
[580] De Gruchy v The Queen (2002) 211 CLR 85, [2002] HCA 33 at [57].
Further, the jury had a body of evidence that might have suggested that the appellant had a volatile character, and the explosion and fire were the result of a black mood on his part.
On a number of occasions the appellant described his mental state to the police:

(a) when he described the argument he had with his wife that morning as “a little bit of a blue” over her refusal to pick up some leaves, he said he “got the shits with her” and told her he was “going to see the guys from the club”;[581]
(b) he took Citalopram for stress and anxiety, or mixed mood;[582]
(c) he stayed over quite often at the Bribie Island house if he was “having a shit time … with moods up and down”; in that context he said he was seeing a clinical psychologist every month, and as well he was seeing a psychiatrist;[583]
(d) he described getting involved in things “to stop me going completely mad and my psychiatrist has said it’s a good idea”;[584]
(e) he said “I just forget things and I can remember some things and I don’t remember other things and I just don’t know what it is, why it is, and it’s not Alzheimer’s or anything like that I don’t think but as they say … I’ve become a bit of a hypochondriac. I’ve had every mental check done that you could have done. I’m fucked mentally alright”;[585]
(f) when referring to the argument with his wife he said “… have you ever lived with anyone with a medical disorder? … like are they unpredictable sometimes? … I get into a rage for no reason sometimes … and what I do is get in the car and fuck off. I go for a drive and I just say leave me alone, don’t talk to me … what I was feeling guilty about was psychological abuse by me having rages in the house”;[586]
(g) describing the period after he had argued with his wife on the day of the fire, he said that he had gone over to Caboolture to pick up some strawberries, then left his ute at the Narangba pub; he sat there “trying to calm myself down”;[587] and
(h) later in the second interview he referred to himself when he said “I’ve got a mental illness”.[588]
[581]         AB 988.
[582]         AB 994 line 56 to AB 995 line 2.
[583]         AB 1000 lines 1-11.
[584]         AB 1027 line 43.
[585]         AB 1028 line 46.
[586]         AB 1031 lines 10-30.
[587]         AB 1086.
[588]         AB 1165-1166.

It is not necessary to reach a conclusion as to the impact of this part of evidence.
In my view, it was open to the jury to conclude that the appellant was guilty, notwithstanding the absence of an obvious financial motive. More particularly, it was open to them to do so, having excluded all reasonable hypotheses. Those proffered by the appellant at the trial and before this court, when assessed on all of the circumstances established by the evidence,[589] do not rise above mere conjecture or speculation.
[589] R v Baden-Clay (2016) 258 CLR 308 at 324 [47].
These grounds fail.
Ground 4 – failure to properly direct the jury
The appellant contended that the failure to give a direction pursuant to s 21A(8) of the Evidence Act 1977 (Qld), in respect of Trindall’s evidence, constituted a substantial miscarriage of justice. Trindall was a child witness and an order was made for her trial evidence to be pre-recorded under s 21AK of the Evidence Act, and then played to the jury.
For reasons which will appear, it was wrongly conceded by the Crown that the learned trial judge did not give a direction in accordance with the terms of s 21A(8) of the Act.
The failure to give the appropriate direction constitutes an error of law which renders the trial irregular.[590] However, that failure does not necessarily give rise to a miscarriage of justice. Where the failure is not capable of giving rise to an inference adverse to the accused person, no miscarriage of justice arises.[591]
[590] R v Michael (2008) 181 A Crim 490 at [36].
[591] R v AJH [2018] QCA 86 at [27]-[32].
Trindall’s evidence was pre-recorded between 9.23 am and 10.05 am on day 2 of the trial. It was pre-recorded but not played to the jury until later. The next witness was Freeman, whose evidence commenced at 10.17 am. Just before her evidence was taken the trial judge gave a direction in these terms:[592]
“… Now, just before her evidence is taken, I’ll just give you a further direction about the way in which the evidence of children is taken. As I said, it is the law in Queensland that the evidence of children needs to be taken in this way. So … – by the recording of the interview with the police and then the recording in advance of the trial from a remote room, that is routinely done because it is the law and you must not draw any inference about [the appellant’s] guilt from the way in which … the evidence of the children is taken in this case.
Their evidence … – will be taken or has been taken in accordance with the law and, as it is done in all such cases. The probative value of the children’s evidence is not increased or decreased because of the way in which the evidence is taken because it’s taken in that way and not the usual way that adult witnesses give their evidence. The evidence is not to be given any greater or lesser weight because of the way in which it’s taken. In other words, you assess the evidence of the child as if he or she was giving evidence in the courtroom before you during the trial, but taking into account that that evidence is fractured – taken in two stages. So back in 2015 and more recently.”
[592] AB 184 line 44 to AB 185 line 14; emphasis added.
As is evident from the first paragraph of that direction, the learned trial judge made the direction in respect of both Trindall and Freeman, by using the phrase “the evidence of the children is taken in this case”. Then, in the second paragraph, the references to “their evidence” and “the child’s evidence” encompassed both Trindall and Freeman.
Trindall’s evidence was described, in the presence of the jury, as “the evidence of the second child witness”.[593] Both the s 93A interview and her pre-recorded evidence were played, commencing at 11.56 am, and therefore after the direction referred to in paragraph [403] above had been given.
[593] AB 212 line 7.
This ground of appeal fails.
Ground 3 – non-disclosure
The appellant contends that he was denied a fair trial because of the failure by the prosecution to disclose two reports of Bioletti until such time as Bioletti had completed his evidence and departed for overseas.[594] It is also contended that the prosecutor failed to disclose the identity of a number of youths who were at the scene of the car arson.
[594] Reliance was placed on Grey v The Queen (2001) 75 ALJR 1708 and R v HAU [2009] QCA 165.
The question to be answered on this issue is whether the undisclosed material might have influenced the result of the trial. As was said in R v Colagrande:[595]
“In R v HAU, Keane JA, with whom Cullinane and Jones JJ agreed, said that where documents were not disclosed in breach of the prosecution’s obligation, then the Court of Appeal cannot ignore “even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure”. His Honour said that non- compliance by the prosecution with its obligations of disclosure was such a serious breach of the pre-suppositions of a fair trial as to deny the application of the proviso, at least when the undisclosed material might have influenced the result of the trial. The hurdle for the defence raised by non-disclosure is, therefore, a low one.”
[595] [2018] QCA 108 at [22]; internal citations omitted.
It is not the case that every non-disclosure will result in a miscarriage of justice, as it depends upon whether the outcome of the trial would have been adversely impacted:[596]
“The question is whether this non-disclosure has resulted in a miscarriage of justice. In R v Cox, McMurdo P said that the test to determine whether there has been a miscarriage of justice in this context is an undemanding one, namely it is whether the material which was withheld could have made a difference to the verdicts. Similarly, in R v HAU, Keane JA said that “even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure” cannot be ignored.”
[596] R v Grimley [2017] QCA 291 at [36].
Bioletti was one of the police officers made available for cross-examination. His evidence was given on day 5 of the trial[597] and concerned only the investigation of the car arson, and whether he was present at the first trial when Weare disclosed that the appellant had made a complaint against him.
[597] Commencing at AB 447.

The sequence of events concerning the reports is as follows:

(a)

the appellant requested disclosure of the reports over the weekend of 26 and 27 May 2018, after Bioletti had completed his evidence but before the close of the Crown case;[598]

(b)

upon the request being made the prosecutor obtained the documents and provided them to the appellant on Monday, 28 May, day 6 of the trial;[599]

(c)

the appellant, knowing that Bioletti had left the country, expressly stated that he was “not seeking to have [Bioletti] recalled, but … seeking to be able to comment on that in my closing speech”;[600]

(d)

in the course of submissions to the learned trial judge once the report had been provided, it became apparent that the newly disclosed report contained, in substance, no more than Bioletti had said in evidence namely, identifying the evidence he had in respect of the car arson;[601]

(e)

the appellant twice told the learned trial judge that it was an issue “that will be dealt with in another jurisdiction” or was “for another jurisdiction”;[602] and

(f)

the appellant did not seek to have Bioletti recalled, even by a method which would not require his return to Australia, such as by telephone.
[598]         AB 576 line 22.
[599]         AB 576 line 2 and lines 20-27.
[600]         AB 576 lines 7-9.
[601]         AB 577 lines 7-25.
[602]         AB 576 line 30 and AB 577 line 39.

The first report by Bioletti, dated 19 August 2016,[603] set out the case as Bioletti saw it in respect of the car arson, and sought a direction to prosecute. It referred to the various steps taken in respect of contacting the appellant, interviewing witnesses, reviewing other fires in the area and reviewing the state of the evidence. All of those matters could have been made the subject of cross-examination by way of telephone link, if the appellant so chose.
[603] Exhibit LMcM-1 to the affidavit of McMahon.
The second report, dated 12 February 2017 was concerned with the rejection of a direction to prosecute. As with the first report, if anything could have been made of its contents that could have been done by cross-examination by telephone link.
In my view, the inference is clear, namely that the appellant appreciated that the evidence that could be established from the reports was already before the court, as the review of Bioletti’s evidence (see paragraphs [152] to [162] above) demonstrates. The appellant had already cross-examined Bioletti (and others) with a view to establishing that the investigation of the car arson was done poorly and that he may have been the target of that arsonist. As the reasons above reveal, the appellant was the only person at his house on the afternoon leading up to the explosion,[604] he was the only person seen to run away from the fire, he was the only person to ride away on a motorbike, and whatever he thought at the time it was the case that he was not pursued.
[604] Leaving aside the four teenagers.
The second aspect of complaint is that the prosecutor did not disclose the identity of a number of youths who were at the scene of the car arson. This point does not carry much weight. By the time of Bioletti’s evidence Patruno had already given his own evidence in which he was cross-examined about the night of the car arson, and revealed that he was with Drayton and a female (Janaya Lauren), and gave evidence as to what they had done.[605] It had been put to Patruno, and denied, that he had set fire to the appellant’s car.[606] Further, there was other evidence from Driver that Patruno had been spoken to at the time of the car arson.[607]
[605]         AB 102.
[606]         AB 128.
[607]         AB 539.
The critical difficulty confronting this ground is that in this case, unlike Colagrande or Grimley, the disclosure occurred prior to the close of the Crown case and at a time when the witness could have been recalled, even if only by phone. The appellant expressly disavowed any desire to have Bioletti recalled.
In those circumstances it is difficult to conclude that the failure to disclose the reports or identity of the youths at the scene of the car arson could have impacted upon the trial in relation to the house arson. I do not reach that conclusion.
This ground fails.
Disposition of the appeal
All grounds have failed. I propose the following order:

1. The appeal is dismissed.

MULLINS J: I agree with Morrison JA.

JETTY PATRUNO’S HOUSE APPELLANT’S HOUSE

DAY CARE CAR PARK

BLAKER’S HOUSE
SPANN’S HOUSE

Schedule

CITATION:	R v Coughlan [2019] QCA 65
PARTIES:	R v COUGHLAN, Eamonn Charles
(appellant)
FILE NO/S:	CA No 152 of 2018 DC No 1125 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING	District Court at Brisbane – Date of Conviction: 6 June 2018
COURT:	(Clare SC DCJ)
DELIVERED ON:	16 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2018
JUDGES:	Fraser and Morrison JJA and Mullins J
ORDER:	The appeal is dismissed.

COUNSEL:	D O’Gorman SC, with D Wells, for the appellant M Hynes for the respondent
SOLICITORS:	Moreton Bay Regional Community Legal Service for the appellant Director of Public Prosecutions (Queensland) for the respondent