R v Crawford

[1992] QCA 52

IN THE COURT OF APPEAL	[1992] QCA 052
SUPREME COURT OF QUEENSLAND

C.A. No. 340 of 1991

T H E Q U E E N

v.

ANTHONY WAYNE CRAWFORD

(Appellant)

JUDGMENT OF THE COURT

Delivered the 2nd day of April, 1992

The appellant was convicted of arson in the District

Court at Ipswich on 29 November 1991. He has appealed to this court on the ground that his conviction is unsafe and unsatisfactory.

The offence of which the appellant was convicted arose

out of a fire on 5 October 1989 at a furniture shop at Ipswich
conducted by the appellant and his father. Each was charged
with wilfully and unlawfully setting fire to the building in
which their furniture shop was located and with having
attempted to obtain money from their insurer by false
pretences with intent thereby to defraud. The jury found
both not guilty of the latter charge and the appellant's
father not guilty of the former charge upon which the

appellant was convicted.

It is unnecessary to discuss the background of the fire

in any detail. There was ample evidence that the business had
been unprofitable for a significant period, that there were
substantial borrowings associated with the business and that
the stock was over-insured although the claim subsequently
made to the insurer seems to have related to the actual value
of what was lost. The fire was first observed shortly after
the appellant and his father left the premises at
approximately 8.30 p.m. Shortly beforehand, the appellant had
been in a part of the building adjacent to where the fire
began.

Both the prosecution and the defence called expert

witnesses and their opinions conflicted in a number of
respects. The jury must have accepted the evidence of a
prosecution witness, Nystrom. The resolution of the

differences between his views and those of other experts on
critical issues is complicated by interwoven disagreements
with respect to less important matters, by some imprecision in
the methods adopted to express the opinions which the various
experts held and by other aspects of the trial, including
aspersions which were cast on the motives and credibility of
some of the experts.

The critical issue was whether the fire had been started

doubt that that was the case, the jury could be satisfied
beyond reasonable doubt that the appellant was guilty.

by human intervention. If it was proved beyond reasonable the prosecution failed to prove beyond reasonable doubt that the fire might not have been the result of some other cause.

Nystrom gave evidence that there were separate fires,

both started near the base of furniture at two points in an
area of the premises where furniture was stored, and that
there was no explanation for either fire other than that it
was deliberately started. His evidence was complicated by
unnecessary speculation that the two fires might have been
connected by a paper trail, a proposition which was patently
unproven but which led to extensive testimony to contradict it
from other experts whose own evidence was in consequence also

complicated unnecessarily.

The alternative explanation put forward, which the

appellant contends must have left a reasonable jury with at the second point identified by Nystrom.

least a reasonable doubt, was that the fire was initially
caused by an electrical fault and that the separate fire
identified by Nystrom was merely a further point of ignition
which resulted from the original fire. According to the
proponents of this approach, the electrical fault occurred in
a fluorescent fitting and the original fire was started by hot
material which dropped from the fitting. Hot gasses which
formed above that fire then spread across the ceiling and the
heat caused another fire near the top of stacked furniture.

Nystrom, the first expert to give evidence for the

prosecution, inspected the scene and took photographs on the
day following the fire. He identified the area of most
intense burning as a "seat" of the fire, and gave evidence of
damage to the ceiling, including fire penetration through the
ceiling, above that area. He also identified a "shadow mark"
on the ceiling about a metre away where a fluorescent light
fitting had been situated midway between and parallel to two
joists, and pointed out a light fitting attached to electrical
supply cables hanging down from a point in the ceiling in the
vicinity of the "shadow mark". Less severe damage, including
less extensive penetration through the ceiling, was also
indicated in conjunction with the "shadow mark". Nystrom also
identified another fluorescent light fitting between the same
joists but above what he described as "the second seat of
fire", and gave evidence that the ceiling above that point
was also charred, but less heavily than above the "seat" of
the most intense burning.
Nystrom asserted that the fire was not caused by an
electrical malfunction for two reasons, namely, that the
fittings "showed no signs of initiation" and, in any event,
"the closest fittings were nowhere near the seats of fire".
According to Nystrom, if the fire had started from a fault in
one of the electrical fittings, he would have expected to see
"evidence of overheating in the area of the ballast or the
starter". Nystrom was later recalled after the conclusion of
the defence case to say that he noticed discolouration of the
entire fitting and that the condition of the metal case
containing the ballast resulted from the "general effect
rather than from an initial prolonged effect" as, in his view,
would have indicated that the ballast had ignited from a
defect in the fitting.

Further, while Nystrom accepted that hot gasses would

have formed above the most intense burning and spread across
under the ceiling between the joists, he rejected the
possibility that burning material which resulted had caused
the other ignition because "the seats of fire are not directly
across from each other, they are removed by at least half a
metre to the side. It is unlikely that the second seat of
fire was directly the result of the first." Later, he appeared
to add another reason, namely that the furniture near the
"second seat" had burnt "from the bottom", not "from the top",
contrary to what was to be expected if the fire at that point

had been caused by hot gasses under the ceiling.

Although Nystrom accepted the site of the more intense

burning as the original fire and the other point of ignition
as the "second seat", he expressed the opinion that "they were
lit" no more than a "minute apart". Once again, however, this
assertion, like the "paper trail", seems to depend on
supposition, namely, that the difference in the degree of
burning which occurred is not significantly related to the
different times for which the fires at the two points burned
or other innocent factors but to differences in "loading" at
the two sites; that is, in the different quantities of
combustible material and thus in the "bulk of energy
available". The example taken by Nystrom of possible
combustible material was "shredded paper", an obvious
reference back to his speculative "paper-trail" theory.

The quality of Nystrom's evidence was not improved by his

practice of relating his conclusions to a combination of
features of variable reliability, or by his expression of
opinion in terms more appropriate to probabilities than proof
beyond reasonable doubt. Thus, for example, his final
conclusion was expressed as follows:
"Finally, what opinion did you come to as a result of your

investigation ? ... I remained very concerned that we had
two seats of fire and we had the apparent trail. There
is no reasonable explanation that I can come up with
which would say that that was a fortuitous fire. I
believe there are reasonable grounds to believe that the
fire was deliberately lit."

In cross-examination, he elaborated a little to say:

"I believe there is reasonable grounds to say it was deliberately lit in the absence of a reasonable explanation."

That was the high point of the case against the

appellant. The other expert called by the prosecutor at the insistence of the defence was unable to disassociate the two points of ignition or to form any opinion as to what had

caused the fire.
The defence evidence was less than impressive, but since

consequence. None of the defence experts saw the scene as it
was after the fire. Two, Gore and Stubbington relied only
upon photographs, while the other, Casey, only went to the
premises months later after the burnt contents had been
removed. Further, some elements of Casey's contradictions of
Nystrom's opinion seen based on a misunderstanding of

there was no burden on the appellant that is of less intermingle his disagreement with irrelevant aspects of Nystrom's evidence, such as the conjectural paper trail, with more substantive issues.

However, a better qualified expert (Stubbington) whose

qualifications included that of electrical engineer, disagreed
with Nystrom's reliance upon his observations of the light
fittings as a satisfactory basis for his opinion that an
electrical malfunction had not caused the fire. Nystrom, who
did not profess expertise in electrical functions, had only
visually examined the relevant electrical fitting, which was
thereafter destroyed. The external charring was in his view
explicit by burning from the outside. Stubbington however
said that such a conclusion was not open on visual
examination; and that the fitting would have to be opened in
order to determine whether there had been a malfunction. It
is difficult to dismiss this observation, particularly when
the external charring would seem to be consistent with being
caused by external source, internal source or both. Nystrom
gave no criterion to justify his opinion excluding electrical
malfunction, and on examination it seems to be more assertion
than sound opinion.

At the end of the day, Nystrom's thesis in relation to

each point of ignition was substantially tied to the
circumstance that the points of ignition were not directly

It is not for the Court to decide merely whether there is

been convicted on the one hand or, on the other hand, whether
the jury's verdict is against the weight of the evidence, or
different from the conclusion which the Court itself would
reach. Rather, the Court must decide whether a jury, acting
reasonably, must have entertained a reasonable doubt as to the
appellant's guilt having regard to the probative value of
evidence which, if accepted, would support a conclusion of
guilt.

below, but up to a metre distant, from the possible fire
sources suggested by others, that is, the defective light
fitting in the one instance and, in the other, the top of the
stack of furniture which it was postulated might have been
ignited by hot gasses. None of the other expert witnesses,
including Baker, adopted such a basis for a similar
conclusion.

Even if Casey and Gore be entirely disregarded, Nystrom's

evidence falls for consideration against the following
background:
(a)His "paper- trail" theory was speculative and in the end

irrelevant;

(b)An element of doubt, at the least, was cast upon the

reliability of his inspection of the electrical
fitting as a foundation for a conclusion that there

was not an electrical fault;

(c)No other expert, including the prosecution's other expert,

was convinced that there were separate fires; and

(d)Nystrom's own opinion appears to have been substantially

expressed by reference to probabilities rather than
satisfaction beyond reasonable doubt.

While none of the matters, except perhaps the last, could

of itself be sufficient to deny efficacy to the jury's
verdict, it is necessary to consider their cumulative effect
upon a reasonable jury.

evidence upon which the appellant could theoretically have on his inspection of the fitting and an expectation that the exterior of the ballast case would have appeared different if a fire had started there and had not merely been subjected to external fire, is less than compelling even without the disagreement of other experts, including one better qualified than Nystrom. His conclusion that there were two fires is largely, if not wholly, dependent on his unexplained opinion that the "seat" of a fire started by material dropping from above must be directly (or almost directly) under the point from which the material dropped. Finally, there is his formulation of his conclusion in terms of likelihood and reasonable grounds for belief, a degree of satisfaction considerably removed from the absence of reasonable doubt needed to sustain a criminal conviction.

Nystrom's opinions are so tenuous and conjectural that in

the absence of any other evidence that the fire was
deliberately lit and a body of evidence to the contrary, they
provide no sufficiently safe foundation for a conclusion of
guilt.

The appeal should be allowed the conviction quashed and a verdict of acquittal entered. There should be no new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 340 of 1991

T H E Q U E E N

v.

ANTHONY WAYNE CRAWFORD

(Appellant)

The President
Mr Justice Davies

Mr Justice Thomas

Judgment of the Court delivered the 2nd day of

April 1992.

APPEAL ALLOWED. CONVICTION QUASHED

VERDICT OF ACQUITAL ENTERED
ORDER THAT THERE BE NO NEW TRIAL

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 340 of 1991

The President
Mr Justice Davies

Mr Justice Thomas

T H E Q U E E N

v.

ANTHONY WAYNE CRAWFORD

(Appellant)

JUDGMENT OF THE COURT

Delivered the 2nd day of April, 1992

MINUTE OF ORDER:Appeal allowed. Conviction quashed.

Verdict of acquittal entered.

Order that there be no new trial

CATCHWORDS:

Counsel:	Mr Costanzo for the Crown Mr P. Nase for the Appellant
Solicitors:	Director of Prosecutions for the Crown
Messrs. Dale and Fallu for the Appellant

Hearing Date: 2nd March, 1992