R v DM
[2016] ACTSC 179
•26 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v DM | |||
| Citation: | [2016] ACTSC 179 | |||
| Hearing Dates: | 11, 12, 13, 14, 17, 18, 19 March, 2, 8 April, 8, 22 May and 22 August 2014 | |||
| Decision Date: | 26 July 2016 | |||
| Before: | Penfold J | |||
| Decision: | The accused is guilty on the charges of: (a) arson (Count 1); | |||
| ||||
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – verdict – trial by judge alone – offences of arson, attempt to dishonestly | |||
| obtain property by deception and dishonestly obtain property by | ||||
| deception – circumstantial case – whether a rational hypothesis consistent with innocence exists – whether proposition that cause of fire is undetermined is a rational hypothesis – whether asserted lies by the accused are “Edwards lies” constituting evidence of consciousness of guilt – accused guilty of all counts. CRIMINAL LAW – Evidence – expert evidence – need for | ||||
| expert opinion to be reached by reference wholly or substantially | ||||
| to specialised knowledge – exclusion of portions of reports | ||||
| containing reasoning and conclusions not reached through reference to specialised knowledge. | ||||
| Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 1202, 4000, schedule 1 Criminal Code 2002 (ACT), ss 44, 300, 301, 325, 326, 404(1) Evidence Act 2011 (ACT), ss 18, 76, 79(1), 102 Supreme Court Act 1933 (ACT), s 68C | |||
| Cases Cited: | Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Edwards v The Queen (1993) 178 CLR 193 Fleming v The Queen (1998) 197 CLR 250 The Queen v Hillier (2007) 228 CLR 618 In re London and Globe Finance Corporation, Limited (1903) 1 Ch 728 R v DM [2014] ACTSC 377 R v Renzella [1997] 2 VR 88; (1996) 88 A Crim R 65 Sayed v The Queen [2012] 220 A Crim R 236 | |||
| Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd | ||||
| (2002) 234 FCR 549 Zoneff v The Queen (2000) 200 CLR 234 | ||||
| Texts Cited: | Macquarie Dictionary Online, < viewed 10 July 2015> | |||
| Parties: | The Queen (Crown) DM (Accused) | |||
| Representation: | Counsel | |||
| Ms A Knibbs/Ms K Marson (Crown) | ||||
| Ms A Tonkin (Accused) | ||||
| Solicitors | ||||
| ACT Director of Public Prosecutions (Crown) | ||||
| Legal Aid ACT (Accused) | ||||
| File Number: | SCC 53 of 2013 | |||
| Introduction |
1. The accused was arraigned before me on three counts. The indictment was amended twice before the end of the hearing, and finally contained the following charges:
(a) Count 1: That on 16 July 2012, [DM] caused damage to a building, namely 36 Mackay Crescent Kambah, by fire and intended to cause, or was reckless about causing damage to that building. (b) Count 2: That between 15 July 2012 and 9 October 2012, [DM] attempted to commit the offence of dishonestly obtain property by deception, namely $51,200 belonging to A & G Insurance Pty Ltd trading as Budget Insurance, with the intention of depriving A & G Insurance Pty Ltd trading as Budget Insurance of that property. (c) Count 3: That on 19 July 2012, [DM] by deception dishonestly obtained property, namely $2,000 belonging to A & G Insurance Pty Ltd trading as Budget Insurance, with the intention of depriving A & G Insurance Pty Ltd trading as Budget Insurance of that property. 2. The accused pleaded not guilty to all charges.
Organisation of judgment
3. This judgment is organised as follows:
Topic Paragraphs Introduction [1] and [2] Organisation of judgment [3] Trial by judge alone [4] to [28] Background to the charges [29] The evidence [30] to [62] The issues [63] to [65] The circumstances of the fire [66] to [115] Investigation of the fire [116] to [121] Matters raising suspicions [122] to [192] Insurance policies, claims and payments [193] to [205] Information provided by DM [206] to [210] Evidence of the cause of the fire [211] to [234] Fire Brigade witnesses [235] to [361] Forensic investigators [362] to [393] Electrical inspector [394] to [448] Intermediate findings of fact – the circumstances of [449] to [473] the fire
Intermediate findings of fact – the fire itself [474] to [591] Conclusions about cause of fire [592] Who started the fire? [593] to [686] Defence submissions [687] to [721] Assessment of circumstantial case [722] Conclusions [723] to [726] Elements of the offences [727] to [739] Consideration of offences [740] to [747] Orders [748] Attachment A – Exhibits Attachment B – Witnesses Attachment C – Plans and photographs
Trial by judge alone
Election
4. The accused elected to be tried by judge alone.
Procedures for trial
5. Section 68C of the Supreme Court Act 1933 of the ACT specifies the procedures to be followed for a trial by judge alone. In summary:
(a)
the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)
the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250); and
(c)
the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have to have been made, to a jury, in the proceedings.
Directions that would be given to a jury
6. In a judge-alone trial the judge must give herself certain general directions equivalent to those that would be given to a jury.
General directions
7. First are directions that relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with.
8. Accordingly, I direct myself that the prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish her innocence. She is entitled to be presumed innocent of any charge until her guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.
9. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that she is very likely guilty.
10. If the accused offers or suggests an explanation which is consistent with her innocence, she is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
11. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving
evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think
fit, accept part and reject part of the same witness’s evidence.
12. There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count
separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is
guilty of this offence?”
Directions about circumstantial evidence
In this case, the Crown relies wholly on what is called “circumstantial evidence” in
relation to the basic fact in issue in this trial, namely whether the accused deliberately or recklessly set fire to her house. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of further facts. I must give myself various directions about circumstantial evidence and how it may be used.
14. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is directly capable of proving the guilt of the accused.
15. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence.
16. In a circumstantial case no individual fact can prove the guilt of the accused. Because
the Crown’s case depends on circumstantial evidence, I am asked to reason in a staged
approach.
17. First, I am asked to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Each fact taken by itself cannot prove the guilt of the accused.
18. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon those basic facts is that the accused person, DM, is guilty of the offences charged.
19. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence, but it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular
fact in isolation and ask whether that fact proves DM’s guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with DM’s guilt.
20. The correct approach is, first, to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt.
21. I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that DM is guilty of the offences charged. Having regard to submissions made in this case, it is appropriate to expand on this point.
22. A circumstantial case is to be considered by the fact-finder “holistically, not piecemeal”.
In The Queen v Hillier (2007) 228 CLR 618 (Hillier) at 637; [46] to [49], Gummow,
Hayne and Crennan JJ, with whom Gleeson CJ at [1] agreed, said:46. ... It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
47. The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
48. Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think,
however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore
not to be weighed as part of the proofs of what was done. (emphasis added)
23. In order to satisfy me beyond reasonable doubt of DM’s guilt of an offence:
(a) the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. (b) It must then prove to me that the only reasonable or rational inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that DM is guilty of that offence. 24. If there is any other reasonable or rational conclusion open on those facts that is
inconsistent with the conclusion the Crown asks me to find, then the Crown’s
circumstantial case has failed.
25. In this case, the conclusion that the Crown says I should reach from the circumstantial evidence is that DM, deliberately or recklessly, set fire to her house. The alternative hypothesis put by the defence is that the fire began accidentally (but see [480] to [482] below).
26. In considering whether DM’s guilt is a reasonable or rational inference from the
evidence, and if so, whether there is any other reasonable or rational inference from that evidence, I must take account not only of the material presented by the prosecution but also the evidence presented in the defence case, and the submissions of both counsel.
Consciousness of guilt and Edwards lies
The Crown has made submissions asserting that a “consciousness of guilt” on DM’s part
is shown, among other things, by what the Crown says are “Edwards lies”. Directions about “Edwards lies” are set out at [632] to [635] below, before the asserted “lies” are
considered.
Recklessness
28. In these reasons, I refer generally to whether DM lit the fire “deliberately” or whether it
started accidentally. The charge of arson (Count 1) includes the possibility that DM was reckless about whether the fire would cause damage. However, as to how the fire started, the Crown case was put on the basis that the fire was started intentionally, and I see no need to refer to any other possible state of mind in relation to that issue.
Background to the charges
29. At around lunchtime on Monday 16 July 2012, shortly after DM and her daughters had
left the house, a fire broke out in DM’s house in Kambah. Officers of the ACT Fire
Brigade arrived within a few minutes, and quickly extinguished the fire, but the house, especially the living area, was seriously damaged. Within a few hours, the fire had been identified as suspicious, especially as a result of the discovery of a large number of personal items that had been removed from the house and several empty methylated spirits bottles in the recycling bin. Police began an investigation. On the day of the fire, DM initiated a claim on her contents insurance, and several days later she received an emergency payment of $2,000 from the insurance company.
The evidence
General comments
30. Many of the facts relevant to these charges are not in dispute, including several facts that were the subject of admissions by DM, and many others that emerged from written material tendered at the trial. The only evidence seriously in dispute is the expert evidence, although there are competing submissions about how some of the other evidence is to be interpreted. It is, however, necessary to describe much of the undisputed evidence in detail, because that undisputed evidence provides a large part of the basis for the circumstantial case.
Admissions
31. DM made formal admissions:
(a) that her house was damaged by fire on 16 July 2012; (b) that she made an insurance claim by telephone for contents insurance; and (c) that she received $2,000 as an emergency payment from the insurer.
Other evidence
32. The Crown exhibits are listed at Attachment A.1, and Attachment A.2 lists the defence exhibits.
33. Attachment B identifies the witnesses called in the trial.
34. DM did not give evidence, but the taped record of the search warrant executed at the house on the day after the fire (mainly in her presence), and the taped record of her
police interview (the police interview), were in evidence. I rejected the Crown’s
suggestion that only selected extracts from the audio recordings needed to be played in court. The Crown conceded that the extracts that had been chosen were those seen as
most damaging to DM’s credibility. The complete recordings were accordingly played.
Assessment of witnesses
35. I saw no reason to doubt the credibility or reliability of most of the witnesses who gave oral evidence, and in most cases there was no challenge to their credibility or reliability in cross-examination. However, some comment must be made about some witnesses and some of the evidence.
36. It was clear that some of the people who investigated the fire, in particular Officer Cahill of the Fire Brigade and Constable Yeo, had strong views about the cause of the fire.
Andrew Cahill
37. Officer Cahill had no doubts about his interpretation of the burn patterns and other evidence he observed at the scene of the fire, and became quite defensive when his expertise was challenged. His attitude was not improved by the fact that, under challenge, it emerged that he did not have the formal qualification as a fire investigator that had been identified in the Crown case (at [272] and [273] below).
38. On the other hand, I note that Officer Cahill did adopt the Expert Witness Code of Conduct in relation to his oral evidence (at [277] and [278]) below), although this does not appear to have been necessary (at [213] below).
39. I do not suggest that Officer Cahill gave anything other than truthful evidence, only that he gave the impression that his opinions were strongly held and were unlikely to be revised in the light of other evidence or other possible interpretations of evidence. For
that reason, I would have hesitated to rely on Officer Cahill’s opinions alone.
40. However, much of his evidence was purely factual, and was supported by exhibits, including many photographs taken by several different investigators, and the reports of
forensic testing. As well, much of Officer Cahill’s evidence, not only evidence of specific
facts but also some of his opinion evidence about fire investigation, was consistent with the opinions of other Fire Brigade officers and other investigators, and even to some extent consistent with the evidence of the defence expert witness Mr Cafe.
41. The main area of disagreement among the relevant witnesses was about how particular items of evidence in this case should be interpreted in the light of the generally undisputed propositions said to emerge from the science or discipline of fire investigation.
42. Defence counsel submitted that I should give Officer Cahill’s evidence little or no weight, because the Crown had failed to establish “any special discipline of ‘fire science’ or any specialised field of study into burn patterns”. This submission is addressed at [214] and
[215] below.
43. In summary, I accept Officer Cahill’s evidence, including evidence of his opinions about
this case, as truthful, but have assessed his expressed opinions about what the evidence could or did establish as the cause of the fire in the context of his defensive approach.
Constable Yeo
44. Constable Yeo, in the police interview with DM, explicitly accused DM of having set fire to her house. It was clear that she also held strong views about the cause of the fire.
45. The evidence given at trial by Constable Yeo was largely uncontroversial. It included tenders of a variety of unchallenged photographs and other documents, as well as the recordings of both the execution of the search warrant and the police interview, and
there was little cross-examination. Constable Yeo’s evidence and its reliability were not in my view affected by her obvious views about DM’s involvement in the fire. However, I have not given weight to Constable Yeo’s questions and comments during the police interview, although obviously DM’s responses have been relevant in my consideration.
The accused
46. The Crown submitted that, during the execution of the search warrant and during the police interview, DM was evasive and often non-responsive (in the legal sense of responding to questions with information that was not an answer to the question concerned).
47. As to whether DM could be described as “evasive”, I note first that the direct questions
put to her by Constable Yeo about whether she had set fire to the house were answered firmly in the negative. On the other hand, she did respond at considerable length to some of the questions put to her, providing a lot of what might be seen as irrelevant or distracting detail, including about matters not necessarily raised by the questions. Furthermore, some of the irrelevant or distracting detail struck me as either:
(a) intended to paint her in a good light (for instance, DM’s comment that when she barbecued, she fed the neighbours – at [210] below – and her story about a woman whom she had helped, after the woman’s husband left her, with things like getting Centrelink benefits, but who then “started spreading ... all bad things about me”, and whom DM had nevertheless helped again a year later); or (b) intended to engage the sympathy of her listeners (for instance, the difficulties caused by the volatile relationship between her father and her son, the fact that she was medicated for diabetes and depression, and the impact of the medication she took for panic attacks and anxiety attacks which, she said, kept her “very much unemotional”).
48. It is possible that DM deliberately adopted this approach in her discussions with police in the hope of deflecting suspicion from herself, but it is equally possible that this vague
and discursive conversational style was simply her normal presentation – there was
nothing before me that enabled me to assess the authenticity of her behaviour. For that reason, I have not in reaching my conclusions relied on a general assessment of DM as
evasive, or on a specifically negative view of DM’s general presentation during either the
execution of the search warrant or the police interview.
49. On the other hand, I have taken account of a number of DM’s specific remarks in assessing aspects of the circumstantial case. As well, DM’s inconsistent answers to
questions about when she had last driven her unregistered car (a month ago or two weeks ago), combined with video footage which, DM conceded, showed she had driven the car five days before the police interview, did raise questions about the reliability of any of her claims, exculpatory or otherwise.
50. Defence counsel made extended submissions in support of DM’s credibility.
51. She said:
(a) correctly, that the reactions of DM on returning to her house after the fire were consistent with innocence; (b) that DM had willingly participated in two police interviews, in what counsel described as “a forthright manner”, despite having no obligation to participate in
either of those interviews;
(c)
that if DM had been guilty she would not have volunteered that her older daughter O said she saw flames shortly after they left the house; and
(d)
that there was corroborated evidence of DM’s distress about the fate of the family’s dog.
52. These are all matters to be considered in the assessment of a circumstantial case. None
of them, however, is determinative as to whether or not DM’s guilt has been established.
53. Defence counsel also pointed to evidence to the effect that DM was unsure whether she did in fact have a current insurance policy, including the recording of her initial call to the insurance company. Again, this is evidence to be considered but, as the Crown pointed
out, it is susceptible of more than one characterisation – that is, DM’s actions and words in this context may have been genuine or they may have been disingenuous. If DM’s words and manner are not taken at face value, then the proposition that she wouldn’t
have burnt down her house without checking whether she had a current insurance policy
is irrelevant.54. Defence counsel referred to DM’s discussion with Constable Yeo about her use of the
gas heater, and submitted:
Had the accused an intention to deceive this was a perfect opportunity for the accused to claim that the heater had been left on and argue that she may have left clothes too close to the fire.
I assume counsel’s reference to “the fire” is intended as a reference to a heater. Apart
from that, counsel is correct that DM could have further emphasised the possibility that clothes too near the heater were the source of the fire, but her failure to do so, simply leaving that as a possibility, does not establish that everything she did say was truthful. Indeed, such an assertion might of itself have aroused suspicion, given the evidence that emerged to the effect that it was very unlikely, even inconceivable, that the gas heater had started the fire by igniting the clothes on the nearby rack (at [261], [342], [343] and [555] below).
56. Defence counsel further submitted that DM had made admissions against interest in saying that she had difficulty accepting casual child-care work because her car was off
the road, saying that “If her intention was to deceive presumably she would not have volunteered this information”. This may be an admission against interest to the extent
that it supported the other evidence about DM’s financial difficulties, but the fact that DM
need not have said it does not of itself establish the truth of other things she said to police. Nor is it clear what particular deception would have been intended or furthered by DM remaining silent about this particular aspect of her financial difficulties.
57. Defence counsel pointed out that DM gave similar evidence in her police interview about the events of the day of the fire as she had given during the execution of the search
warrant on that day, and submitted that this led to the conclusion “that on both occasions
the accused gave a truthful account of events”. Clearly it leads to the conclusion that on
the two occasions the accused gave similar accounts of events, but it is equally clear that the fact that a proposition is repeated does not make it any more true (or of course any more false) than it originally was.
58. Counsel further said:
[t]here is nothing in the record of interview that would lead the Court to conclude that the
accused did not give an honest and reliable account of her involvement.59. I accept that internal consistency in DM’s answers in her police interview is relevant to
her credibility, but I also note that internal consistency does not of itself establish the truth of a particular version of events. Furthermore, as noted at [49] above, there were
also inconsistencies in DM’s answers, and these too must be considered. I reject counsel’s proposition that there is nothing in the record of interview to raise doubts about
the truth of DM’s answers.
60. Counsel submitted that Constable Yeo questioned DM with a view to extracting an admission from her, and that the questioning suggested that Constable Yeo was
personally convinced that DM had started the fire. I do not disagree with counsel’s interpretation of Constable Yeo’s questioning, but I cannot see that the constable’s approach has any particular significance – DM voluntarily took part in the interview, was
appropriately cautioned, and could have terminated the interview at any point. Nor can I identify any point in the interview at which DM could be said to have made any admission or concession as a result of the nature of the questioning.
61. Counsel made the remarkable submission that “[DM] had no motive to lie about [whether she recalled the heater being left on] as her conduct was innocent.” DM’s guilt (or, in counsel’s terms, her innocence) is the question in issue; relying on an assertion of
innocence to exclude a motive to lie, which is in turn relied on in support of innocence, is
a classic example of begging the question. The proposition that DM’s innocence can be
established by assuming her innocence cannot be accepted. In saying that, I recognise
of course that it is not up to DM to establish her innocence – however, to the extent that defence counsel has dealt with this issue in terms of DM’s innocence, it requires a
response in those terms.
Tony Cafe
62. I have commented at length on the expertise of the defence expert witness Tony Cafe at [415] to [422] below.
The issues
63. The main fact in dispute was whether DM started the fire that damaged her house. The Crown case in respect of that disputed fact is described as a circumstantial case, and depends on a variety of evidence, much of which is unchallenged, and from which the Crown says I should infer that DM did deliberately start the fire.
64. The defence case is:
(a) that the Crown case is not a true circumstantial case; (b) that certain inferred aspects of the case could and should have been the subject of questions to witnesses; and (c) finally, that there is a rational alternative hypothesis about the cause of the fire that would be consistent with DM’s innocence, although the nature of the
particular rational alternative hypothesis developed in the course of the trial (see [478] to [482] and [570] to [574] below as well as comments on defence submissions at [477] to [483] below).
65. A finding that DM deliberately lit the fire is in the circumstances of this case a pre- requisite to a finding that she was also guilty of the second and third charges arising out of the insurance claim, but the defence does not concede that a finding of guilt in relation to the arson charge necessarily implies guilty verdicts in relation to those other charges.
The circumstances of the fire
The house
66. DM rented the ACT Housing house at 36 Mackay Crescent, Kambah, where she had lived since 1997, initially with her husband and son and by the time of the fire (her marriage having ended some years previously) with her two daughters, at the time of the fire aged respectively 14 and 6 years. Her son also stayed there on and off, sufficiently frequently that, according to DM, he used the main bedroom and she slept in the lounge
room; DM said that she hadn’t slept well in a bed since breaking her ribs a couple of
years previously, and often slept in the lounge room by choice.
67. During the execution of the search warrant at DM’s home on the day after the fire, DM
told police that she had recently extended the kitchen and put in a new bench, had only just finished re-tiling the kitchen and lounge room floor, and was half-way through tiling the laundry floor. She said that the re-tiling had taken her a long time, and that she had found it very hard to cut the tiles. She had also removed the carpet from the hall
“because it stained so much” and had polished the floorboards.
68. Detective Senior Constable Melanie Yeo was the police officer responsible for
investigations in this matter. She provided floor plans for DM’s house.[1]
[1]
69. The Crown also tendered through Constable Yeo a bundle of documents obtained from the then Department of Disability, Housing and Community Services relating to the lease
of DM’s house. These were admitted not as evidence of the matters recorded in them
but as evidence of what DM had been aware of before the fire, being, significantly:
(a) that in 2011 she had been given a notice to vacate the house on grounds including a failure to pay rent (stated to be in arrears by $364.94) and a failure to remedy a breach (notice to remedy which had been served on 2 June 2010); (b) that on at least two occasions, most recently on 29 August 2011, she had been required in writing to rectify “Tenant Responsible Maintenance”; that most
recent notice referred to the need to clean all floors, walls and doors, to patch
the hall wall and bedroom and bathroom doors, and to “remove the
broken/unfinished tiles at the front entry and hall way” (the notice pointed out
that this tiling work was “unapproved and ... dangerous”, and referred to a
previously-lodged application to modify “the already tiled areas”).[2]
[2]
70. A statement made by Constable Matthew Challenger described a phone conversation on 17 July 2012 with Bernadette Maher from the Department of Housing and Community Services to the effect that:
(a) DM had not applied to be transferred from her house; (b) in 2011 there were “property concerns with crayons on the wall and grass overgrown”; and
(c) those issues had not been rectified on inspection.[3] [3]
71. This statement was tendered by consent, and was summarised by defence counsel in her closing submissions.
72. During the execution of the search warrant on the day after the fire, DM said that she
had bought methylated spirits on the weekend because “I was getting ready for a house
inspection this morning”.73. In her police interview, DM referred twice to the house inspection, which she said was to take place on the day after the fire.
74. Defence counsel correctly noted that there was no evidence that DM wanted to move away from Mackay Crescent, but sought to infer that therefore she had no motive for
setting fire to the house (described by defence counsel at one point as “her newly renovated house”). This submission overlooks both the fact that the house would simply
have been “collateral damage” if DM’s aim was to claim on her contents insurance, and
also the fact that, while DM might have been happy with the location of her house, the information at [69(b)] above raises the possibility that the state of the house had become a problem for DM and that she did not necessarily have the positive attitude to it implicit
in the description “newly renovated house”.
DM and her daughters leave the house
75. On the day of the fire, DM and her two daughters left the house, to go to the library at Woden, shortly before the fire was reported to the ACT Fire Brigade. She said that they all went out the front door together and she had just pulled the door behind her.[4]
[4]
76. When DM returned to the house after the fire she spoke to Station Officer Paul Grech,
and told him she had left the house at “twenty to one I suppose”. Officer Grech gave
evidence that at the time he had thought that “twenty to one” couldn’t be right, given his
impression (noted in his report) that the house had been alight for more than six minutes when he arrived just before 12.45 pm. However, he had apparently put this matter to
one side at the time, telling himself that DM “must be in shock”.
77. During the execution of the search warrant DM told police that the family left the house at around 12.15 pm or 12.20 pm to catch a 12.30 pm bus.
78. In her police interview DM said that they had left the house at about 12.20 pm as the bus was due at half past twelve.
79. DM’s older daughter O told police that the family was planning to catch a bus to Woden
to go to the library. She described waiting at the door for her mother, who was still pressing buttons on the VCR near the TV. She said that her mother joined her first and then her sister came running. [5]
[5]
80. Proofing notes recorded O saying that the back door of the house was usually unlocked and opened a little bit for the neighbours to come in if they needed to (she explained that they were close to their neighbours).
81. The younger girl, E, said that before they left the house, she saw her mother in the lounge room watching TV and getting dressed.[6]
[6]
O sees something in the house
82. O said that when they left the house, they walked out to the front yard. From near the mailbox she heard her dog bark and looked back to see if he was there, but she did not see him. The barking “sounded normal”.[7] She had not smelled either smoke or any
[7]
chemical smell. [8]
[8]
83. O said:
And when we were about to leave the house I looked back and I thought I saw some like
lighting in like the house and I told my mum like I think there’s like something wrong inside.
And she looked back and she saw nothing, so she thought I was seeing things. So then we just kept on walking ...
84. Later O said:
Like I saw, I thought it was like I thought I saw like some flames, you know.... Like in the
lounge room ‘cause like the window near the big, there’s like a big window and there’s like –
‘cause the curtains were like open or they were down, but like through the sheer curtain I
9
saw, I thought I saw like flames. But then when my mum looked she didn’t see anything.
85. O described seeing light around the TV area in the lounge room, which was close to the front door. It was when she looked back after hearing her dog bark that she saw the
flames (“just normal flames”, “reddish orange-ish flames”, in the area near the TV and
heater) and mentioned them to her mother. When she looked back again she saw nothing. O demonstrated with her hand that the flame she saw might have been about 1.5 m high.[10]
[10]
86. O, prompted by her father who was present at her recorded conversation with police, said that DM had told her that she (DM) had left the TV on to record a show on the VCR.[11]
[11]
87. DM said that as they walked away from the house, O:
said she, you know, thought she saw something and I looked back because the curtains
were down and I didn’t see anything and we just kept on going. If I had listened to her, then
12
maybe this wouldn’t have happened.
88. DM said that after O had said that she thought she saw flames, she had looked again and:
13
she didn’t say she could still see them so, you know, I just didn’t think anything of it.
89. Officer Grech gave evidence that DM told him that “the heater’s sort of on all the time”, and “that her daughter mentioned that she could smell something burning as they left the
house and that she just ignored her and continued walking to the bus”. In cross-
examination, Officer Grech agreed that DM might not have used those exact words, and that he could have been mistaken, but he believed that DM had definitely mentioned the daughter saying she could smell something.
The walk to the bus stop
90. O said that the bus stop was two or three minutes away from their home. She said that from their street they go into another street and then down a path coming out near the old school.[14] On the day of the fire they waited for about five minutes for the bus.[15]
[14]
[15]
91. DM in her police interview said that the family had left “probably about twenty past twelve because the bus was due at half past”; this suggests that 10 minutes would have been
more than adequate to walk from home to the bus stop.
92. From their house in Mackay Crescent, the family walked south towards the bus stop on Summerland Circuit. By road this would have involved walking to the south end of Mackay Crescent, turning left into Mannheim Street and walking south to Summerland Circuit. A quicker way to Summerland Circuit involves turning left into Lacey Place before reaching Mannheim Street, then almost immediately turning right into a footpath running between houses straight down to the bus stop on Summerland Circuit.[16]
[16]
93. Instead, the family took a third route, which involved turning left into Lacey Place, a cul de sac, and then walking to the end of the cul de sac, from where a second footpath also ran down to Summerland Circuit. They were seen by Veronica Lovell turning from the Lacey Place cul-de-sac into the second footpath, possibly as long as 10 minutes after Ms Lovell first noticed smoke from the direction of Mackay Crescent.[17]
[17]
94. Constable Yeo produced an annotated Google map showing the route taken by DM and her daughters to the bus stop.18 Constable Yeo said that the route shown was not the
most direct route between DM’s house and that bus stop, and pointed out a more direct
route.
95. Since the bus stop was on Summerland Circuit at the end of the first footpath, it is clear that the route via the end of Lacey Place was a longer route. On the other hand, relevant exhibits show that the second footpath has more open space around it, and it is possible that a person who was not in a particular hurry might for that reason consider it a more pleasant walk.
96. Constable Emma Mills said that on 25 August 2012 she had walked from DM’s house at
36 Mackay Crescent to the bus stop on Summerland Circuit via Lacey Place and the path running from the Lacey Place cul-de-sac (the second footpath); this had taken her 5:08 minutes and involved a distance of 0.42 km.19
At the bus stop
97. From the bus stop, O had seen smoke. When her mother looked, she said it looked as if it was coming from a blue house in the street. O asked permission to go back and see
whose house it was, but her mother wouldn’t let her because the bus was coming soon.
While still at the bus stop O had seen a fire engine turning into the street, and had seen
“a lot of white-ish grey-ish smoke coming into the sky”. She had kept thinking that it
might be their house, because of the flame she had seen earlier.
98. E described walking to the bus stop and from there, seeing smoke. Her sister had said
“it’s maybe our house”, but her mother said “it’s maybe someone else’s house”. O had
suggested that they go and check it out, and her mother had said “no, maybe it’s not our
house”.20
99. DM said that from the bus-stop they had seen smoke that looked as if it was coming from a chimney.21
The bus trip
100. CCTV footage from the bus produced by Constable Yeo showed DM and the two girls getting on the bus at Summerland Circuit at 12.51.39 pm.
101. While they were on the bus, E said, her father had called her sister to say that the house was on fire, so they took a taxi home from the interchange. When they got home, her mother had been crying a lot. E had seen a lot of smoke.22
Using the heater to dry clothes
102. O said that the gas heater in the lounge room was usually on, set low during the night (on 2, the highest setting being 7) and sometimes turned up at other times.23 The only problem they had ever had with the heater was that it turned on and off by itself.
103. O described turning on the heater by turning the dial to “pilot” then pressing a button three or four times. She said that pressing the button “sparks the inside to make it light”,
but she could not see the spark when doing this. 24
104. O said that on the day of the fire there were clothes on the clothes rack, quite close to
the heater but not touching the heater. She said that they didn’t normally dry clothes in
front of the heater, using a dryer instead, but “my mum just felt like using that”. 25
105. In proofing notes, O was recorded as saying that:
They normally dry clothes on the line outside or in the dryer if it’s raining. But the dryer may
have been broken then, or maybe that day they just decided to dry them on the internal rack.
26106. DM said that she was not sure if the heater was on when she left the house but she
generally left it on “medium”.27
The progress of the fire
107. The first 000 call made in relation to the fire was recorded at 12.38.53 pm and a second call was recorded at 12.39.09 pm.28 The Fire Brigade incident log records that the fire was notified to the Fire Brigade at 12.39 pm.29 The fire had been noticed by a number of witnesses around that time, and it appears that very shortly thereafter the house was well alight.
108. Two residents of nearby houses saw signs of the fire at around the same time as DM and her children were walking to the bus stop. Kathleen Harman had been driving along Mackay Crescent in Kambah around the time the fire started. Ms Harman said that, at about 12.30-12.40 pm, she saw a woman and two children walking south along Mackay Crescent towards Mannheim Street. She recognised them as the occupants of a house in Mackay Crescent, and described the three people in terms that made it likely that they were in fact DM and her two daughters. She said that they did not appear to be in any panic or rush and looked as if they were just walking down to the shop. At that stage she did not see any fire, smoke, fire engines or police, nor could she smell anything burning. When she arrived at her house, she went upstairs and walked out onto the balcony, at which point she could see flames from the direction of Mackay Crescent. She said that it would have been no more than 10 minutes between when she saw the three people walking on Mackay Crescent and when she saw the flames.30
109. Veronica Lovell lived not far from Mackay Crescent, and returned to her home just after 12:30 pm on 16 July 2012 (incorrectly described as a Thursday in her statement). Ms Lovell said that when she got out of her car at home she could smell smoke, and then saw smoke in the direction of Mackay Crescent. She walked up the laneway between Summerland Circuit and Lacey Place and then to the corner of Lacey Place and Mackay Crescent. From there she could not tell which house the smoke was coming from. She then returned to her home and set out again with her son to walk up a second laneway, between Summerland Circuit and Lacey Place. As she left the path and entered the cul- de-sac at the end of Lacey Place, she saw a woman and a young girl walking nearby. She described the woman and girl in terms that made it likely that they were DM and O. She said that it would have been about 10 minutes between when she first saw the smoke and when she saw the woman and girl near the end of Lacey Place. 31
110. The bus stop where DM and her daughters caught the bus is in fact at the end of the first footpath leading down to Summerland Circuit, which they would have passed walking along Lacey Place on their way to Summerland Circuit.32
111. Constable Kris Thomson of the Australian Federal Police (AFP) had been off duty on
16 July 2012 but had been near DM’s house in Kambah. At about 12:42 pm he observed “a large plume of black or dark coloured smoke rising up in the sky in the direction of
Mackay Crescent”. He drove towards Mackay Crescent and saw that the residence at 36
Mackay Crescent appeared to be on fire. In his statement he said:
The right end of the house (as you look from Mackay Crescent) was well alight, the large
double window appeared to be smashed and the room on the front right side of the house
was engulfed in flames, which were pouring out of the window area. There was a large
amount of black or dark coloured smoke also emanating from the house. The smoke was
33
visible 50 - 100 m above the house.
112. Constable Thomson described arranging the evacuation of the occupants of 34 and 38 Mackay Crescent and three houses behind 36 Mackay Crescent, and returning to the front of 36 Mackay Crescent to see the ACT Fire Brigade arriving.34
113. Constable Scott Vandervalk was with Constable Thomson when he noticed smoke. He reported driving towards Mackay Crescent with Constable Thomson and observing flames coming from the living room of 36 Mackay Crescent.35
114. Timothy Graham was a gas appliance worker who had been working on the roof of a house in Kambah on 16 July 2012. At about 12:30 pm he had heard the sound of glass breaking. He turned towards the sound and saw smoke coming from a house about 150 metres to the north-east. The smoke was white and was coming out the front window. He and his colleague climbed off the roof and walked towards the house. When they arrived they saw the house was well alight and the smoke was a grey colour.36
115. Sergeant Peter Murphy of the AFP was travelling north along Drakeford Drive in Tuggeranong at about 12:40 pm on 16 July 2012 when he saw a plume of smoke apparently coming from a residential area to the north-east. He and his partner Constable Lawn drove into Kambah and arrived in Mackay Crescent to find Fire Brigade personnel dealing with the fire.37
Investigation of the fire
116. Constable Mark Treloar was on duty at Tuggeranong Police Station when word of the fire came through at about 12.45 pm. He and another constable arrived at the house at 12.55 pm, and observed that the house was well alight. At about 1.20 pm, DM and her children arrived at the house. DM told Constable Treloar that they had left the house at about 12.40 pm. He observed that she was crying, and her two daughters were also upset.38
117. At about 2.00 pm, Constable Treloar spoke to Commander Talbot. His statement referred to Commander Talbot advising him:
that he was “99% sure” that the fire was not suspicious, and that he was confident it had
been caused by clothes too close to the heater or something of this nature.
118. Constable Paul Edwards spoke to Fire Brigade officers at the house, and made notes in his police notebook of a conversation with Commander Talbot as follows:39
– not suspicious
– Fire investigator en route
mech fault in heater
– point of origin
119. On the basis that it was a non-suspicious fire, the investigation was begun by Fire Brigade members, accompanied by AFP Crime Scene Investigators who attended as part of an arrangement with the Fire Brigade aimed at giving forensics officers broader experience.40 Those investigators arrived shortly after 4.00 pm, and in due course drew
Constable Treloar’s attention to a number of matters that raised questions about the
cause of the fire. At 4.56 pm Constable Treloar determined that the fire was suspicious, and ACT Police would take over the investigation. At 5.00 pm he commenced a crime scene log.
120. On the afternoon of the fire, Constable Travis Lutz organised fencing of the premises at
36 Mackay Crescent, and a “static guard” for overnight, because a proper examination of
the house would not be able to be carried out until the next morning.41
121. Investigations continued the next day. These various investigations produced several reports; only one drew any substantive conclusions about the cause of the fire, that being the report prepared by Station Officer Andrew Cahill, who investigated the fire assisted by Adam Scott and Crime Scene Investigators Evan Robinson and Ro-Anna Trebilcock.
Matters raising suspicions
Removal of items from the house
122. One thing that raised early suspicions among fire fighters and AFP investigators about the cause of the fire was the observation that a substantial amount of personal household property seemed to have been removed from the house before the fire. In the back yard near the side fence to the north of the house was a structure with a roof but not properly sealed walls (variously referred to in evidence as the lean-to or the half- shed, which I shall refer to simply as the shed).
123. The shed was inspected by Ms Trebilcock on the day of the fire, and by Constable Yeo on the following day. In it were a large number of household items, packed up in various bags and boxes, and partly covered by a new-looking blue tarpaulin. Ms Trebilcock said that the tarpaulin was in good condition, and she found a leaflet that seemed to belong with the tarpaulin on the ground in the shed.
124. A large number of photographs were taken of the items found in the shed, and many of them were exhibited at trial.42
125. Items found in the shed included:
(a) electrical equipment (Constable Yeo said that she had not tested whether any of the electrical items worked); (b) a box containing family photographs (including a photo frame with several photographs of young children in it which Ms Trebilcock said appeared to be in good condition), and three grey cassettes;43 (c) a plastic box containing books including a copy of the Qu’ran in Arabic, and sealed containers of photographs and documents;
(d) a container (referred to by different witnesses as an overnight bag, a box or DM’s sewing box) containing medications and personal sanitary items such as a
hairbrush and deodorant;44
(e) a photograph of what DM agreed in her police interview was a piece of Islamic art described by the informant as “a large framed piece of glass that appeared
to have Arabic writing on it .... It looked like an art piece that you would place on
the wall”;45
(f)
a bag containing a black hammer and a bag of scarves or cloth items (Constable Yeo did not open the bag and so could not say how old or new the items were).
126. Constable Yeo produced copies of bills and other documents she had found in the shed.46 These included:
(a) a letter from a debt recovery agency engaged by the ATO dated 26 June 2012 and advising DM’s ex-husband of a tax debt of over $16,000, payable within
seven days; and
(b) a letter from Budget Direct insurers dated 7 February 2012 enclosing an insurance certificate for contents insurance for DM’s Mackay Crescent address
(the policy certificate itself was not included in the documents produced by
Constable Yeo).
127. During the execution of the search warrant DM said that what was under the tarpaulin in the shed was:
just stuff. Some stuff I was keeping. Some stuff that had to be gotten rid of ... more books, clothes, utensils, you know, electronics that need to be gotten rid of ... old photos ... my tools.
128. DM told police in her police interview that:
So there was papers, there was old photos, bags to go to charity, there’s old utensils. I don’t think there was any dishes but I know there was a couple of knives, some skewers. I can’t
remember what else in there but, you know, what else? What else? What else? There was a
tin with some make-up in it because I didn’t want [O] getting into her – and she has enough make-up and I’m trying to slow her down. Yeah, bits and pieces of everything. There’s a – there was maybe two VCRs, yeah, but one plays and doesn’t record and the other records but doesn’t play. DVD player that was fifty per cent functioning, printer that – same thing.
You know, I recently bought a – was trying to find the receipt to take it back but I couldn’t
find the receipt. And probably eighty per cent of it was going to go to charity and the other stuff I had to go through and decide. You know, there was books in there that could have
gone to the bin, paperwork that I probably don’t need any more but I sort of – I hang on, you
know, like, there’s probably bills in there from two thousand and five, maybe. You know?129. She also said that “a lot of stuff got shoved in these bags to get out of the house and be
sorted out”. It was “stuff that I didn’t want in the house anymore”.47
130. In her police interview, DM said that the books in the shed included Qur’ans, but that she “just didn’t want them in the house any more”. She said that there were two or three
Qur’ans, all stored in the shed except an Arabic-English version, stored in the house.
131. During the execution of the search warrant, DM had said that some of the stuff under the tarpaulin had been put out in the last three or four months, but two bags of clothes had been put there as recently as the weekend before the fire. In her police interview, she said that the various items had been taken out to the shed over the previous eight or nine months, that the last box had been taken out probably three or four months ago, that the tools were put out there probably a week ago, and that a green plastic bag with scarves and other clothing was probably put out there two or three weeks ago.
132. DM said that she had bought the tarpaulin the year before last for summer because she
also bought a swimming pool, but it never got set up because she couldn’t work out
where to set it up.48 The tarpaulin was intended to go under the pool, so that “grass and stuff” wouldn’t puncture it. Although she had bought the tarpaulin a couple of years ago,
it had not been opened at that point.
133. In her police interview, DM said that she could not explain why her sewing box, which also contained her medicines, deodorant and hair brushes, had been taken out to the shed, saying:
I keep my medicines because as I mainly sleep in the living room and I keep them all in the
box with me. The only thing I could think is, you know, when I’ve taken other bags out and
I’ve lugged it out with me and – yeah, but I – I – I – you know, honestly I don’t know why I
took that out.”
134. O said that in the shed there were things like books from the bookshelf including a
“Muslim version of the Bible”, some of her brother’s old DVDs, and “some stuff that we
don’t really use”. O had helped her mother carry some of the stuff out to the shed “ages
ago”, and had taken out family photos and other items “probably a couple of months
ago”. Her mother had taken some of the photos off the walls, but there were still some
on the walls and possibly a book full of photos on the bookshelf. The stuff had been
taken outside because “there wasn’t enough room”. 49
135. One of the fire investigators, Adam Scott, having noticed the items in the shed in the backyard, went back into the house and had another look at the rooms. He gave the following evidence in cross-examination:
And were they normal children's rooms? I think television in one room and other bits and pieces in another?---I recall them being normal looking rooms. I recall a TV. I do also recall them being quite bare.
The children's rooms?---Yes.
In terms of "quite bare", what are you saying?---Less stuff in them. Less personal belongings in them than I would expect.
136. He did not resile from this assessment despite defence counsel’s reminder that the house was a “Housing Commission” house (which I assume was intended to imply that
the occupants were unlikely to be well-off).
137. Defence counsel submitted that the photographs do not show that the rooms were
sparsely furnished but “quite the contrary”.
138. I accept that the photographs do not show the rooms as “sparsely furnished”, but that is
not what Mr Scott said: he referred to them being “quite bare”, and having “less stuff ...
less personal belongings ... than I would expect”.139. Photographs at C.9 and C.10 below, taken in one of the bedrooms, are relevant. Photograph C.9 shows a chest of drawers with a few items on top, and several drawers which appear to have little in them, as well as an empty space where one drawer belongs. Photograph C.10 appears to show an empty wardrobe.
140. In the same paragraph of her submissions, defence counsel also noted that:
Fireman Scott asserted that flashover had occurred and the entire contents of the house had been consumed by fire.
141. It is apparent from photographs C.9 and C.10 that the entire contents of the house had not been consumed by fire. In fact Mr Scott said that the lounge room had suffered flashover, and did not as far as I can see refer to the house or its contents being
“consumed by fire” (although he did mention certain doors and an armchair having been
partly or wholly consumed). I am not sure of the significance of counsel’s claim, but if it
was meant to raise a doubt about Mr Scott’s credibility it was not effective.142. The heavy curtains from the lounge room, which DM had made, were hanging on the clothes line in the back yard. DM said that she had washed them and hung them out (apparently along with other curtains) before leaving the house that morning.50 She explained:
I finished the last of the washing and put it outside ... all the curtains got a bit sticky in the
washing machine so they got all stuck together and that’s why they were outside. Otherwise
I would’ve just hung them straight back up at the window...143. In his police statement, DM’s son B said that when he got home on Sunday night, the
curtains from the lounge room, which his mother had washed on Saturday, were still on
the line.51144. Station Officer Paul Grech was in charge of the first fire truck to arrive at the scene of the fire. When he went into the backyard, he noticed that there were no clothes hanging on
the clothesline, but that it was “loaded fully with what appeared to be curtains and/or lounge coverings”. On a trampoline under the clothesline, and on the ground next to the
trampoline, were laundry baskets, each full of clothes. Officer Grech noted in his report
that “the clothes in both baskets were dry and appeared to separate easily”. In oral
evidence, he explained this observation:
My assumption, and it was only an assumption, seeing two baskets of clothes, was that they would be ready to hang out. However, what was already on the clothesline may not have been dry. So I thought why would you leave two baskets outside. And my assumption was that they would have been washed, ready to hang out, and in my experience, if you leave clothes that are washed, ready to hang out, in a clothes basket, once they dry - because this has happened to me once before when I've forgotten it - they clag together and they stick together and they're difficult to pull apart. I hadn't really inspected them prior to this, but I did go around with [DM]'s son and said, "There are some clothes there. Maybe you can get some clothes for the children out of those baskets." So I accompanied him and there was nothing else besides clothes in the baskets but I was then surprised to see that they just were like clean, dry clothes that separated and were fluffy. So (a) they either hadn't been washed - I mean, being outside I couldn't tell whether they were pristine clean - or (b) they had been washed, retrieved from the line and left outside, which again I thought if you'd take clothes off the line I would be at least getting them out of the weather if they'd been washed. So I was surprised that they didn't cling together, because that's what I was expecting. That was just something that I noted and I thought, "Why would we have two full washing baskets of clothes outside?"
145. In cross-examination, Officer Grech said:
I was expecting them to be wet clothes dried in a bunch in a basket, yes. And my – in my
experience, I would have assumed that they had been dried and put into a basket and just
not taken inside.146. A printout from the Bureau of Meteorology website of daily weather observations for Tuggeranong for July 2012, produced by Constable Yeo, was in evidence.52 It showed rainfall as follows:
(a) Wednesday 11 July: 27 mm of rain (b) Friday 13 July: 10.2 mm of rain (c) Sunday 15 July: 1.2 mm of rain. 147. That is a total of 38.4 mm in the five days before the fire (most of it early in that period).
148. The maximum temperatures in the week before 16 July had ranged from 9.9°C to 16.2°C.
149. The weather in the five days before the fire would seem to be generally unlikely weather in which to choose to wash curtains; however, DM may have been induced to do so by the imminent house inspection that she mentioned during her police interview.
Methylated spirits bottles and other possible accelerants
150. Another matter that engendered suspicion was the discovery of several methylated spirits bottles on the premises.
151. Four methylated spirits bottles were seized from DM’s premises after the fire. Three of them, two branded “Fabulous” and one branded “Digger’s”, were found in the recycling bin outside DM’s house, 53 and a fourth bottle was found, about two-thirds full, in DM’s
laundry tub; no brand was discernible on that bottle, and its contents were not tested.
152. The bottles in the recycling bin were found on the day of the fire by Crime Scene Investigator Ro-Anna Trebilcock, who said that looking in the recycling bin was a standard part of the procedure for fire investigations. In the bin she saw various plastic containers including three bottles with labels marking them as methylated spirits bottles. Two of the bottles were near or at the top of the bin and the third one was underneath some other items. She collected the three bottles, packaged them, and took them for further examination. Two of the bottles had some liquid in them, which was decanted into glass vials for examination.
153. Photographs in evidence showed the recycling bin on the north boundary of the block, on the far side of the driveway from the house.54 Other evidence (signs of heat damage to the bin and some contents, and polystyrene on the ground similar to polystyrene found in the bin) suggested that the bin might at some point have been on the other side of the driveway and closer to the house (near the north-east corner of the lounge room), but neither Ms Trebilcock nor Constable Yeo had seen the bin in that location.
154. DM’s fingerprints were found on three of the methylated spirits bottles that were seized.
Two fingerprints found on one of the bottles remained unidentified, despite being suitable for comparison and despite a search (presumably of records available to the police) having been made.55
155. DM’s DNA was found on two of the three bottles seized from the recycling bin.
156. DM said in her police interview that there had been a bottle of methylated spirits on the top of the TV unit in the lounge room that was half or three-quarters full.
157. Also seized from the laundry was a partly-used packet of Jiffy firelighters; a fire blanket was also seen, but was not seized.
158. Constable Yeo was shown a photograph of the shed showing a tin;56 she could not recall noticing the tin, did not agree that it was a petrol tin, and said that, if it had been a petrol tin for a mower, whether she would have seized it would have depended on whether it had anything in it or not, but that she had not investigated it further.
DM’s approach to cleaning
159. There was evidence from DM and her children about her approach to house cleaning.
160. B said that for normal household cleaning, they used liquid soap and “spray and wipe”.
Sometimes bleach was used in the toilet and in the bathroom. He had seen his mother use methylated spirits when cleaning if there was chewing gum or dirty marks that would
not come off with “spray and wipe”. He had never seen her mop the floor with methylated
spirits, but noted that he was not always at home when the cleaning was done.57
161. B went home to DM’s house at about 6:30 pm on the Sunday evening before the fire. His
mother and both sisters were home. While he and his sisters watched television in his
room, his mother was watching television in the lounge room. B’s statement said:
when I got home, they [sic] house was looked normal, it was mainly tidy, with some dishes to
be washed and washing to be folded. I could not smell any cleaning products. Usually when
cleaning has been done I can smell it straight away. My dad has a cleaning business and the
58
smells sometimes upset my asthma, causing me to cough.
162. O said that on the day before the fire, her mother had been home on Sunday by herself.
Her mother had cleaned the house a little bit on Sunday; she “normally” cleaned using “normal cleaning supplies”; O mentioned Bam, sugar soap and Windex, and a clear
liquid that was usually just used to get fingerprints off computer screens and TV screens.
When O returned home at about 7.30 pm on Sunday, her mother was “just sitting there watching TV”, the house looked normal, and it smelled of cigarette smoke but not like
any cleaning products.59
163. E said that for cleaning at their house they used two soaps, one yellowish and one purple, that could be poured.60
164. DM told police during her police interview that she used a lot of methylated spirits for
cleaning, and that “I got the idea from my ex-husband ... using it on floors and stuff ... we
used it at some of his work”.165. She also said that on Sunday 15 July 2012 (the day before the fire) she had cleaned the house in anticipation of an imminent house inspection, specifically that she had:
cleaned some of the walls ... washed the floors, the benches, the stove ... scrubbed out the bathroom and toilet ... basic stuff, just a bit stronger than usual ... Vacuumed a lot harder to try and get all the fluff and stuff off the rug
166. During the execution of the search warrant DM said that she had used two bottles of
methylated spirits in her cleaning on Sunday, which was “about average what I’d use”.
She would use a whole bottle in a bucket of water; she often washed the walls with methylated spirits because her younger daughter drew on the walls using crayons, textas and permanent markers. In discussing of her purchases of methylated spirits, DM
referred to a bottle of methylated spirits that she used for cleaning the TV, saying “On Saturday – Saturday evening, I think it was. Sorry, Sunday.” I do not interpret this as a
claim that she had cleaned the TV on the Sunday evening in particular rather than on
Sunday.167. DM said in her police interview that she normally used “[b]leach, Ajax Bathroom, Ajax Cream, window cleaner, metho, washing powder”, but on the Sunday before the fire she
mainly used:
bleach and metho ... I probably used a couple of litres of the heavy duty Power gel [a form of
bleach].168. She thought she’d only used two bottles in her weekend cleaning, but if police had found
three bottles she must have used three. She explained the quantity by saying:
I’m not a regular cleaner. That’s the thing. And when I do clean I use extra.
169. DM also said that she always used too much of cleaning products, including dishwashing liquid and washing powder for washing machines.
170. A fact sheet produced by Diggers (producers of methylated spirits), stating that methylated spirits is a common cleaning product typically used to clean mirrors, showers, tiles, fridges and ovens, was identified by Constable Yeo and put into evidence by the defence.61
DM’s acquisition of methylated spirits
171. There was evidence that DM had bought several bottles of methylated spirits in the few days before the fire:
(a) At around 3:30 pm on the Saturday (14 July), DM had bought a bottle of methylated spirits, "Fabulous" brand, from the small supermarket in Mannheim Street, near her home. In her police interview, DM conceded this purchase after being shown video footage of the transaction.62 (b) At about 7:30 pm on the Sunday (15 July), DM had bought two bottles of methylated spirits, "Fabulous" brand, from the Wanniassa Supabarn.63 172. In her police interview, DM said that she had bought two bottles of methylated spirits from Supabarn at Wanniassa on the Saturday or Sunday before the fire, to use in mopping the floors and other cleaning; she said that she was preparing for a house inspection scheduled for the morning after the fire.
173. As well, on 14 or 15 July (the Saturday or Sunday), Woolworths in Marconi Cres, Kambah had sold two bottles of “Digger’s” brand methylated spirits.64 There is no
evidence directly linking DM with that sale, or either of those sales, but one of the bottles
found in the recycling bin was a “Digger’s” brand bottle.
174. As indicated at [151] above, four methylated spirits bottles were found after the fire,
being two “Fabulous” brand, one “Digger’s” brand and one with no brand discernible.
That leaves one bottle of “Fabulous” methylated spirits possibly unaccounted for, and
establishes that DM also had “Digger’s” methylated spirits in the house (whether or not
she was the person who had bought the two bottles of that brand from Woolworths on
the weekend before the fire).
The family’s financial position
DM’s financial position
175. DM's financial position in July 2012 was not healthy.
176. During the execution of the search warrant, DM said she was living on a parenting benefit of about $1,000 per fortnight in total, and that her husband paid some child
support. She said during her police interview that for her “household insurance” she paid
about $40 per month.
177. There was evidence65 that:
(a) DM had had a substantial debt to ActewAGL: in January 2012 she had received an electricity bill of $1,951, payable by 3 February 2016, $1,797.10 of which represented arrears as at 13 January 2012 which appeared to have accrued over several months; (b) DM had a substantial debt to TransACT: in June 2012 she had received a telephone bill of $820.96, payable by 3 July 2016, $600.73 of which represented arrears as at 7 June 2012 which also appeared to have accrued over several months; (c) DM had been in arrears with payments under an agreement that apparently related to the rent of various household items (from a firm called “inRent” with the slogan “Lets you have it now!”): in June 2012 she had received a bill for $127.80 payable by 12 July 2012, $69.00 of which was described as “Arrears
Fee”.
178. Bank statements showed that DM’s accounts routinely were either in debit, or in credit
for very small amounts (often no more than $100):
(a) A Bendigo Bank account was on 4 July 2012 in debit to an amount of $1.75, although a deposit of $400 was made by DM into that account on 16 July 2012.66 (b) A Commonwealth Bank statement for an account which had been in debit for the entire period from 1 April 2012 until 30 September 2012 except for a couple of days in June 2012, when it was briefly in credit as a result of two deposits from the Smith Family (totalling $245); significantly, most of the debits in the account were described as “Scheduled Payment Dishonour Fee” or “Debit
Excess Interest”, and there were also two debits for “Unpaid Payment Fee” and
one “Overdrawing Approval Fee” – although individually small, those costs of
being in debit made up over $80 of the total debits of $338.78 during the relevant period; on 12 July 2012 that account was in debit to the amount of $184.05.67
(c) A second Commonwealth Bank statement for the period 1 May 2012 until 31 July 2012 related to the account into which DM’s Centrelink and other benefits, as well as several amounts shown as “Salary” were paid; it showed
healthier balances, and was mostly in credit during the relevant period, but even
that account showed regular entries for “Overdrawing Approval Fee”; on 14 July
2012 that account was in credit in an amount of $0.96, although after $400 had
been transferred from that account into what appears to be another of DM’s
bank accounts on that day, and $108 had been paid to ACT Housing.68
(d) Over the period from December 2011 to October 2012, DM paid off an outstanding loan amount of about $960 (including around $55 interest charged during that period); the loan seemed to have been for $5,000 initially, to be paid off over seven years. In July 2012 the debt had stood at roughly $160; this was presumably the personal loan that DM said, during the execution of the search warrant, had only $130 left to pay off.69 179. DM’s car was unregistered and she was disqualified from driving, which among other
things inhibited her ability to accept casual childcare work. These problems seem to have resulted almost entirely from her failure to pay fines and other charges. She said in her police interview:
Last year my car got a default on it and I didn’t know the registration was cancelled and I got
pulled over. I got the unregistered car thing, sort of, put off paying the fine and then my
licence got cancelled.180. The licence cancellation had happened around November the previous year (2011). She had been pulled over only a couple of months earlier, driving on a day when she
had been offered some work in Kingston and couldn’t turn it down. She told police that
she had last driven her car about two weeks previously, around the block, to avoid it
“seizing up”.
181. Defence counsel submitted that DM’s comment about the difficulties caused by her car
being off the road was an admission against interest that went to her credibility, since it
was a comment that “she would not have volunteered” if her intention was to deceive. It is true that DM’s non-payment of traffic fines was one of many matters relied on for the Crown’s claim that her financial difficulties provided a motive for setting the fire.
However, her non-payment of traffic fines was a fact that would in any case have been available to police, and the comment that having her car off the road was a source of inconvenience would not have told police anything they would not have assumed anyway. I cannot see that the comment deserves the description of an admission against
interest that establishes DM’s honesty (see also [56] above).
182. Despite her precarious financial position, and her recognition that not being able to use her car inhibited her capacity to accept casual childcare work when it was offered, DM seems to have chosen to spend her money elsewhere. Her family apparently had an impressive collection of electronic goods (at [208(h)] below), and DM told police during the interview that she had recently begun paying for funeral plans for both her parents, despite her claims that she did not speak to either of them (at [210(h)] below). DM had also indicated that she was counting on her tax refund to support various other plans,
vehicle means motor vehicle, motorised vessel or aircraft.
Count 1 – Arson
728. Establishing the offence of arson in this case requires that the following matters are proved beyond reasonable doubt:
(a) that DM engaged in conduct; (b) that she intended to engage in the conduct; (c) that her conduct caused damage to a building by fire; and (d) that she intended to cause, or was reckless about causing, such damage.
Counts 2 and 3 – Obtaining, or attempting to obtain, property by deception
729. The elements of the offence of obtaining property by deception in this case are:
(a) that DM, by deception consisting of words or conduct, obtained property (which includes money) from someone else to whom the property belonged: the property identified is the $2,000 emergency payment; (b) that the deception was intentionally or recklessly engaged in (Criminal Code, s 325, and Sayed v The Queen [2012] 220 A Crim R 236 at [41] and [42]); (c) that she intended to permanently deprive the other person of the property; (d) that she obtained the property dishonestly – that is, she acted dishonestly according to the standards of ordinary people and she knew that she was acting
dishonestly according to the standards of ordinary people; and(e) that there was a causal link between DM’s deception and her obtaining of the property.
730. The offence of attempting to obtain property by deception would be constituted by DM carrying out conduct that was more than merely preparatory to the commission of an offence of obtaining property by deception as described at [729] above.
731. The conduct by DM that is said to constitute the attempt offence is in general terms the same conduct relied on in relation to the offence of obtaining property, except that the
latter offence would be completed by DM’s receipt of the $2,000 emergency payment.
An offence of obtaining property by deception could not be made out in relation to the full insurance payout, because DM has never received that money. That is, her conduct could only have amounted to an attempt to obtain the larger amount of money.
732. The key to these two offences is identifying the deception alleged against DM. That of course depends first on a finding that DM was responsible for the fire.
733. The Crown relied on the explanation of deception given by Buckley J in In re London and Globe Finance Corporation, Limited (1903) 1 Ch 728 at 732-733, as follows:
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
734. There is no allegation that DM’s deception consisted of any explicitly untrue assertion
made to the insurance company. Her notification of the house fire and of a claim under the insurance policy were truthful as far as they went. For that notification to have been deceptive, it is necessary to treat it as including:
(a) an implied representation that her claim was not excluded by the provision in the Product Disclosure Statement that excluded cover for loss or damage “caused by any criminal or illegal act or omission, any attempted criminal or
illegal act or omission, or any act or omission occurring during the course of any
criminal or illegal act or omission”; or
(b)
more specifically, an implied representation that she had not been criminally responsible for the house fire.
735. No submissions were made to the effect that the “falsehood” referred to by Buckley J
had to be an explicit statement made by the accused or, alternatively, that it did not have
to be explicit and could be implicit in an accused’s other statements or conduct.
736. There may be cases in which a deception must be explicitly conveyed to another person, but failing any authority for the proposition that such is always a requirement of the
offence concerned, and noting that the definition of “deception” includes a deception “by
words or other conduct” (s 325 of the Criminal Code, quoted at [727] above), I am
satisfied that the falsehood that induces a particular state of mind in another person may
in appropriate circumstances be conveyed by implication rather than by express words.737. If it is found that DM was criminally responsible for the fire and that her contact with the insurance company included those implied assertions, then, in my view, it could be concluded:
(a) that at least the representation that she was not criminally responsible for the fire was implied in her relevant dealings with the insurance company, and that that representation was at least reckless but probably intentional; (b) that her conduct was dishonest according to the standards of ordinary people; and (c) that she knew it was dishonest according to those standards. 738. I note at this point that although there was evidence of the relevant contents of the insurance policy (at [195] above), and evidence suggesting that DM had received a copy of that policy (at [126(b)] above), there was no direct evidence that she was aware of the clause excluding cover for loss or damage caused by criminal activity. However, it is in my view reasonable to conclude that DM was aware that it was dishonest according to the standards of ordinary people to intentionally destroy property covered by an insurance policy and then seek to claim under the policy in respect of that destruction.
739. I reject defence counsel’s submissions that DM’s offer to withdraw her insurance claim is
inconsistent with an intention to permanently deprive. As long as the intention to permanently deprive (that is, to retain the money for her own use and without any intention of repaying it) was present when the claim was made, the offence cannot in my view be avoided by a subsequent offer by an accused to repay, or in this case to withdraw the claim after she became aware that she was suspected of conduct that would exclude her claim (and see [743] below).
Consideration of offences
Count 1 – Arson
740. I have concluded (at [726] above) that DM started the fire that damaged the house at 36 Mackay Crescent, and that she did so intentionally by starting at least two fires in the house. I am further satisfied beyond reasonable doubt, having regard to the evidence, that the effect of the fires was to cause substantial damage to the house and its contents, and that DM intended to cause damage to the house contents, and either intended to damage the house or was reckless about causing such damage.
741. I find DM guilty of the offence of arson.
Count 2 – Attempting to obtain property by deception
742. I am satisfied beyond reasonable doubt:
(a)
that DM had a current home contents insurance policy with Budget Insurance at the time of the fire;
(b)
that she was aware both of the existence of the policy and the value of the policy, given:
(i)
the presence in the shed of the letter from Budget Direct notifying DM of the renewal of the policy in February 2012 (at [126(b)] above);
(ii) her comment to Constable Yeo that she paid about $40 per month for her “household insurance” (at [176] above); and
(iii) her comment during the execution of the search warrant that the insurance policy had originally provided cover of $50,000 (at [208(d)] above (I do not consider that it matters whether DM knew exactly the amount of cover provided after the policy was renewed, or only the original amount);
(c) that under the policy she was not entitled to have a claim paid out in respect of a fire for which she was criminally responsible (at [195] above); having regard to my conclusion in relation to the arson charge (at [740] above), I see no need to consider whether an act could be identified as criminal or illegal even if no person could be found criminally responsible for it; (d) that on the day of the fire and therefore within the period specified in the indictment (at [196] above), DM, by her call to “Trish”, initiated a claim on
Budget Insurance in respect of the damage caused by that fire, that she intended the claim to be paid, and that she intended to retain the money paid by the insurance company for her own use and not to repay it;
(e) that, having regard to my conclusions about the arson offence, at (c) and [738] above, this involved an intentional deception by DM, in that she sought to induce the insurance company to believe that she was entitled to receive a payment under her insurance policy, despite her disentitling conduct; and (f) that in initiating that claim, DM was acting dishonestly according to the standards of ordinary people and knew that she was acting dishonestly accordingly to those standards. 743. The offence of obtaining property by deception could not be made out in relation to the total claim on the policy, because DM received only the emergency payment amounting to an advance on the payment determined under the policy. However, I am satisfied
beyond reasonable doubt that the action outlined at [742(d)] above was “more than merely preparatory to” committing the offence of obtaining property by deception.
Defence counsel conceded that if the offence was committed it was committed before
DM tried to withdraw her claim during police questioning.744. Accordingly, I find DM guilty of attempting to obtain property dishonesty and by deception from A&G, trading as Budget, with the intention of permanently depriving the company of that property.
Count 3 – Obtaining property by deception
745. Count 3 relates to DM’s receipt, on 19 July 2012, of $2,000 from Budget Insurance by
way of an advance that was payable under her insurance policy and described as an
emergency payment.746. It is undisputed that DM obtained money (the $2,000 emergency payment) from someone else (the insurance company). I am satisfied beyond reasonable doubt, in reliance on her acceptance of that payment (although there was no direct evidence to this effect):
(a) of the matters already found at [742] above; (b) that the advance, although offered by Joel Brown rather than sought by DM, was offered, paid, and accepted, in connection with the insurance claim that she had made (at [742(d)] above) which I have found involved a deception (at [742(e)] above); and (c) that DM intended to permanently deprive the insurance company of that money (that is, at the time she received it, she did not intend to return or repay the money); and (d) that having deliberately started the fire, DM’s acceptance (or “obtainment”) of that payment was dishonest according to the standards of ordinary people and
DM knew that it was dishonest by those standards.747. I find DM guilty of obtaining property (the $2,000 advance) dishonesty and by deception from A&G, trading as Budget, with the intention of permanently depriving the company of that property.
Orders
748. Accordingly, I enter the following verdicts against DM:
(a) Count 1 – Arson: Guilty (b) Count 2 – Attempting to obtain property by deception: Guilty (c) Count 3 – Obtaining property by deception: Guilty. I certify that the preceding seven hundred and forty- eight [748] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Associate: David Hoitink Date: 26 July 2016
Attachment A – Exhibits
A.1 – Crown exhibits
| Exhibit | Description |
| A | Report of Laura Bowen |
| B.1 | Admissions of matters of fact by the accused. |
| B.2 | A police statement made on 18 January 2013 by Satnam Singh. |
| B.3 | Bendigo Bank statement for DM |
| B.4 | ING Direct Interim Statement for DM |
| B.5 | Commonwealth Bank statements for DM |
| B.6 | A police statement made on 18 July 2012 by Kamaljeet Kaur. |
| B.7 | Eleven CCTV stills of ‘5 Star Supermarket’ on 14 July 2012. |
| B.8 | Journal reprint and EFTPOS receipt from Sunshine Supermarket dated 14 July 2012. |
| B.9 | A police statement made on 20 October 2012 by Fotis Sgouros, an employee of Supabarn in Wanniassa. |
| B.10 | Seven CCTV stills of Supabarn Wanniassa on 15 July 2012. |
| B.11 | Receipt printout from Supabarn Wanniassa dated 15 July 2012. |
| B.12 | Transcript of a taped record of conversation between Constable Yeo and O |
| (then aged 14) conducted on 17 July 2012 in the presence of O’s father. | |
| B.13 | Crown proofing notes in relation to O. |
| B.14 | Transcript of a taped record of conversation between Constable Kate Bamford |
| and E (then aged six) conducted on 18 July 2012 in the presence of E’s father. | |
| B.15 | A police statement made by B, DM’s son, on 25 July 2012. |
| B.16 | A police statement made by Kathleen Harman on 17 July 2012. |
| B.17 | A police statement made by Veronica Lovell on 25 August 2012. |
| B.18 | A police statement made on 8 January 2013 by Constable Emma Mills. |
| B.19 | A police statement made on 28 January 2013 by Constable Kris Thomson. |
| B.20 | A police statement made on 14 December 2012 by Constable Scott Vandervalk. |
| B.21 | A police statement made on 30 August 2012 by Timothy Graham, a gas appliance worker who had been working on the roof of a house in Kambah on 16 July 2012. |
| B.22 | A police statement made on 31 December 2012 by Sergeant Peter Murphy of the AFP. |
| B.23 | Fire Brigade incident log for the fire. It records the fire being notified to the Fire Brigade at 12:39 on 16 July 2012. |
| B.24 | A police statement made by Senior Constable Travis Lutz on 16 January 2013. |
| B.25 | A police statement made by Constable Paul Edwards on 9 January 2013. |
| Exhibit | Description |
| B.26 | A police statement made by Detective Senior Constable Tristan Thexton on 23 January 2013. |
| B.27 | A police statement made by Evan Roeterdink, an AFP Crime Scene Investigator on 1 January 2013. |
| B.28 | A police statement made on 14 December 2012 by Lee Sloan, an AFP Crime Scene Investigator. |
| B.29 | A police statement made on 18 December 2012 by Ashley Freeman, an AFP Crime Scene Investigator. |
| B.30 | Property seizure records relating to items seized from 36 Mackay Crescent. |
| B.31 | A police statement made on 7 January 2013 by Andrew Cross, an AFP fingerprint expert, attaching a report of his examination of fingerprints found on the methylated spirits bottles seized from 36 Mackay Crescent. |
| B.32 | A police statement made on 18 January 2013 by Jennifer Stone, an AFP forensic biologist, who attaches a report on her examination of DNA found on the three methylated spirits bottles seized from 36 Mackay Crescent. |
| B.33 | A police statement made on 31 December 2012 by Detective Senior Constable Matthew Challenger. |
| B.34 | An undated transcript of a record of conversation between DM and a person identified as Trish from the insurance company Budget. |
| C | A police statement made on 10 January 2013 by Constable Mark Andrew Treloar. |
| D, E, F | Documents relating to DM’s insurance policy. |
| G, H | CDs containing recordings of a total of six phone calls between DM and Joel Brown of the insurance company Budget. |
| I | A statement in relation to her insurance claim received by Bruce Bunyan from DM. |
| J | Fire Brigade incident report dated 16 July 2012. |
| K | Two photographs of the outside of DM’s house after the fire. |
| L | Two photographs of the gas heater and the ironing board, one taken inside the lounge room and one taken from outside the house. |
| M | Two photographs of the electrical parts inside the gas heater after the fire. |
| N | Andrew Cahill’s ACT Fire and Rescue Investigation report. |
| O | Various photographs. |
| P | Andrew Cahill’s Diploma of Public Safety dated 17 June 2010. |
| Q | Adam Scott’s Certificate IV in Public Safety (Firefighting Supervision) dated 30 |
| November 2010. | |
| R | Various photographs. |
| S | Ro-Anna Trebilcock’s report of examination. |
| T, U, V | Three empty methylated spirits bottles. |
| W, X | AFP internal chain of custody reports. |
| Y | Evan Robinson’s report of examination. |
| Exhibit | Description |
| Z | Various photographs. |
| AA | Photograph of the masonite board. |
| BB | ACTPLA map. |
| CC | One Google map annotated by Constable Melanie Yeo and one Google satellite photo. |
| DD | Two Google photographs of Lacey Place Kambah. |
| EE | Weather report from the Bureau of Meteorology (dated 17 October 2012, presumably relating to 16 July 2012). |
| FF | Search warrant issued in the course of the investigations. |
| GG | Photographs of items in the shed. |
| HH | A bundle of documents relating to the insurance claim and to DM’s financial |
| situation more generally. | |
| II | Transcripts of two phone calls made to ACT Fire and Rescue on 16 July 2012. |
| JJ | A bundle of documents relating to DM’s tenancy with ACT Housing. |
| KK | ACTION bus timetable. |
| LL | CCTV footage showing DM and her children on an ACTION bus. |
| MM | ACTION bus record. |
| NN | An audio recording and transcript of the execution of the search warrant on 17 July 1012. |
| OO | A map drawn by DM during the execution of the search warrant on 17 July 2012. |
| PP | Search warrant issued in the course of the investigations. |
| An audio recording and transcript of DM’s police interview on 19 July 2012. | |
| RR | An article by Tony Cafe originally published in Firepoint, September 1996. |
A.2 – Defence exhibits
| Exhibit | Description |
| 1, 3, 4 | Various photographs of the property at 36 Mackay Crescent (including of the front door, the house on the block and of the bins, side fence and driveway). |
| 2 | A “fact sheet” published in relation to Digger’s brand methylated spirits. |
| 5 | A Fire Brigade incident log detailing the response to the fire on 16 July 2012. |
| 6 | A crime scene log detailing the attendance of AFP investigators in the aftermath of the fire. |
| 7 | Report dated 9 December 2013 provided by Mr Cafe (admitted only in part). |
| 8 | Report dated 22 April 2014 provided by Mr Cafe (admitted only in part). |
| 9 | Agreed facts about explosive limits of methylated spirits. |
Attachment B – Witnesses
B.1 – Crown witnesses
1. Laura Bowen, Forensic Chemist
2. Joel Brown, claims consultant in the Home and Contents Department for Auto and General Insurance
3. Mark Murphy, area manager of Cerno Loss Adjusting (in July 2012)
4. Bruce Bunyan, insurance investigator who investigated the factual circumstances
surrounding DM’s insurance claim (but not the cause or origin of the fire)
5. Paul Grech, Station Officer, ACT Fire and Rescue Service
6. Brian Talbot, Commander, ACT Fire and Rescue Service
Peter O’Neill, Senior Electrical Inspector, Environmental and Sustainability Development
8. Andrew Cahill, Station Officer, ACT Fire and Rescue Service
9. Adam Scott, Senior Firefighter, ACT Fire and Rescue Service
10. Ro-Anna Trebilcock, AFP Crime Scene Investigator
11. Evan Robinson, AFP Crime Scene Investigator
12. First Constable Melanie Yeo (AFP)
B.2 – Defence witness
1. Anthony Cafe, forensic fire investigator.
Attachment C – Plans and photographs
| C.1: | Plan of house prepared by Fire Brigade officers (not to scale). |
The lounge room is in the north-east corner of the house.
C.2: The lounge room, viewed from the north-east (Exhibit O, photograph 18)
The photograph shows the south-west corner of the room, and the gas heater (beside the remains of the ironing board). Marker 2 (partly obscured) is located between markers 1 and 3.
| C.3: The gas heater in the lounge room [Exhibit O, photograph 14] C.4: The lounge room, viewed from the south-east (Exhibit O, photograph 38) |
The gas heater was attached to the wall at the black area beyond the Gyprock sheet and the white panel. The curved red pipe rising from floor-level on the far side of the black area is the mains gas connection.
| C.5: The front screen door [Exhibit Z, photograph 19] C.6: The front hall, looking in from the front door |
The grey areas on the floor are water from the fire hoses. To the right is the rectangular orange area on the floor apparently protected from the fire by a shelving unit located on that area.
At the top right is the board, or door, that was found on the floor of the hallway, and that had been burned on both sides along two-thirds of its length.
| C.6 (View 1) (Exhibit O, photograph 1) C.6 (View 2) (Exhibit 1) |
C.7: The front hall, looking towards the front door (Exhibit 1)
The orange area on the floor seen on the bottom left of photograph C.6 is in this photograph covered by what Mr Robinson identified as the masonite board.
C.8: Officer Cahill holding up the masonite board (Exhibit AA)
C.9: A chest of drawers in one of the bedrooms (Exhibit Z, photograph 60)
C.10: A wardrobe and other furniture in one of the bedrooms (Exhibit Z, photograph 54)
Exhibit CC
19
Exhibits B.18 and CC
20
Exhibit B.14
21
Exhibit NN
22
Exhibit B.14
23
Exhibit B.12
24
Exhibit B.12
25
Exhibit B.12
26
Exhibit B.13
27
Exhibit NN
28
Exhibit II
29
Exhibit B.23
30
Exhibit B.16
31
Exhibit B.17
32
Exhibit CC
33
Exhibit B.19
34
Exhibit B.19
35
Exhibit B.20
36
Exhibit B.21
37
Exhibit B.22
38
Exhibit C
39
Exhibit B.25
40
Exhibits B.27 and B.29
41
Exhibit B.24
42
Exhibit GG
43
Exhibit GG, photographs 12 and 13
44
Exhibit GG, photograph 17
45
Exhibit GG, photograph 28
46
Exhibit HH
47
Exhibit QQ
48
Exhibit NN
49
Exhibit B.12
50
Exhibits NN and QQ
51
Exhibit B.15
52
Exhibit EE
53
Exhibits T, U and V
54
Exhibit 4
55
Exhibit B.31
56
Exhibit R
57
Exhibit B.15
58
Exhibit B.15
59
Exhibit B.12
60
Exhibit B.14
61
Exhibit 2
62
Exhibits B.6, B.7 and B.8
63
Exhibits B.9, B.10 and B.11
64
Exhibit B.33
65
Exhibit GG
66
Exhibit B.3
67
Exhibit B.5
68
Exhibit B.5
69
Exhibit B.5
70
Exhibit B.15
71
Exhibit D
72
Exhibit E
73
Exhibit B.34
74
Exhibits G and H
75
Exhibit FF
76
Exhibit J
77
Exhibit J
Exhibit B.23
79
Exhibit B.23
80
Exhibit N
81
Exhibit P
82
Exhibit O, photograph 33
83
Exhibit N
84
Exhibit N
85
Exhibit Q
86
Exhibit S
87
Exhibit A
88
Exhibit Y
89
Exhibit Y
90
Exhibit Z, photographs 13 and 14
91
Exhibit 9
92
Exhibit J
93
Exhibit GG
94
Exhibit B.13
95
Exhibit B.12
96
Exhibits B.12 and B.14
97
Exhibit QQ
98
Exhibit A
99
Exhibits NN and QQ
100
Exhibit B.12
101
Exhibits B.12 and B.14
102
Exhibit 5
Endnotes
Exhibit BB
Exhibit JJ
Exhibit B.33
Exhibit QQ
Exhibit B.12
Exhibit B.14
Exhibit B.12
Exhibit B.14
9
Exhibit B.12
Exhibit B.12
Exhibit B.12
12
Exhibit NN
13
Exhibit QQ
Exhibit B.12
Exhibit B.13
Exhibit CC
Exhibit B.18
3
0
4