R v Mumbulla

[2020] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	R v Mumbulla [2020] NSWDC 207
Hearing dates:	20-24 April 2020
Date of orders:	19 May 2020
Decision date:	19 May 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	I find the accused not guilty of all 3 Counts.
Catchwords:	Judge alone trial- assault occasioning actual bodily harm – break and enter and commit a serious indictable offence namely set fire to a house – witness with Multiple Personality Disorder, Bipolar Disorder and Schizophrenia- witnesses under the influence of methamphetamine – unreliable witnesses – hearsay- recognition and identification evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Fleming v The Queen [1998] HCA 68
Category:	Principal judgment
Parties:	Regina (Crown) Mr William Mumbulla (Defence)
Representation:	Mr B Page (Crown) Mr I Todd (Defence)
File Number(s):	2018/272995
Publication restriction:	N/A

Judgment

1. The accused is charged with one count of assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900 (alleged to have occurred on 1 August 2018) (Count 1), one count of break and enter a dwelling house and commit a serious indictable offence contrary to section 112(1)(a) of the Crimes Act 1900 (alleged to have occurred on 3 August 2018) (Count 2), and in the alternative to Count 2, a count of intentionally destroying property by fire contrary to section 195(1)(b) of the Crimes Act 1900 (alleged to have occurred on 3 August 2018) (Count 3).

2. The allegations relate to a time when the accused had just ended a short relationship with the complainant Ms Ashley Ellington.

3. For the purpose of considering the elements which the Crown must prove in the context of this case, the elements have been agreed between Mr Page on behalf of the Crown and Mr Todd on behalf of the accused. The elements of each offence are found at Annexure “A” of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt.

4. The Crown case is that the accused and Ms Ellington were in a relationship during the months leading up to 3 August 2018. On 1 August 2018 after leaving hospital, it is alleged that the complainant returned home, and got into an altercation with the accused. On the stairs it turned physical, and Ms Ellington was struck by the accused two to three times with a curtain rod to her arm. It caused her pain. It subsequently caused her swelling and a large bruise. That is the allegation that forms Count 1 on the indictment.

5. The Crown case in relation to Counts 2 and 3 is that in the days leading up to 3 August 2018, the accused spoke to the complainant over the phone and threatened to burn her house down. That threat was repeated in the early hours of the morning on 3 August 2018. Later the accused presented at Ms Ellington’s back door. The accused managed to open that door, and as a result Ms Ellington and Ms Brennan ran out of the house. Some short time later Ms Ellington’s home was ablaze. The accused called Ms Ellington to inform her, to look at her house which was on fire, and was laughing as he did so. Fire fighters and police attended the house a short time later, the fire was extinguished, but not before the house was totally destroyed. Those allegations form Count 2 and Count 3 on the indictment.

6. Upon his arraignment the accused pleaded not guilty. An order for trial by judge alone was made on 26 March 2020 by his Honour Judge Colefax SC with the consent of the accused and the Crown. On 20 April 2020, the accused consented to appear by audio visual link (AVL). The entirety of the trial was conducted by AVL due to the Covid-19 pandemic.

7. Pursuant to section 133 of the Criminal Procedure Act 1986, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings on fact on which I rely.

8. In Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached.

9. I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law.

10. Having brought the charges, it is the Crown who bears the onus of proving the charges. The accused is presumed by law to be innocent of the charges brought against him unless, and until the evidence satisfies the tribunal of fact that each and every element of the relevant offence has been proved beyond reasonable doubt. If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements of a particular offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally without acting capriciously. It is necessary to bring into account when assessing the evidence, the common sense of the court and to deliver any verdict according to the evidence. The abovementioned principles of law must be applied to the facts as I find them to be.

11. The accused did not give evidence in this case. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. He does not have to disprove the Crown case. I direct myself that as a matter of law, his decision not to give evidence cannot be used against him in any way. That decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that he decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what the accused might have said, had he given evidence.

12. In this case, the Crown case in relation to each charge is based largely on the evidence of the complainant Ms Ashley Ellington. Her evidence is said to be supported in part by the evidence of Ms Skye Brennan, Ms Gillian Wright, Mr Bernard Daly and various documents including text messages. There is direct evidence from the complainant as to Count 1. The case with respect to Counts 2 and 3 is entirely circumstantial.

13. I remind myself that if a conclusion is reached on one of the charges that the Crown has not proven its case, and the reason is due to a doubt as to the honesty or accuracy of the complainant’s evidence, then I must consider whether that doubt affects a consideration of her honesty or accuracy with respect to the other charges. These common sense factors may impact on what someone might be able to remember about an event or how clearly they might remember it. What I have to decide in relation to the evidence of a particular witness is whether I consider their evidence to be sufficiently reliable such that I can act upon it.

14. My function in deciding what evidence I accept as proved and what is not, involves making an assessment of the witnesses. In making an assessment of whether I accept evidence is established by a particular witness’s account, I need to bear in mind that what I am concerned with is not just the honesty of the witness, but the reliability of the witness. Of course, I may well decide not to rely on the evidence of a particular witness if it appeared to me that the witness was not giving evidence honestly. However, I must also bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation, errors in the witness’s recall of events or a witness’s inability to accurately describe what it is he or she saw or heard. I bear in mind that I do not have to accept everything that a witness said or reject everything that that witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said to me, but equally, it is open to accept certain parts of what the witness said as reliable evidence that I can act on, but I am not prepared to accept that witness about other parts of the evidence that he or she gave.

15. In making my assessment of witnesses I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.

16. I acknowledge that reliability depends upon two quite different but overlapping factors. One factor is the witness’s honesty and the other is the witness’s accuracy. There are many factors which can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness strike me as being objective and impartial or did the witness strike me as appearing to be colouring his or her evidence in some way?

17. Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that witnesses can be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. Demeanour and impression alone do not determine the honesty or accuracy of the witness’s evidence.

18. If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness’s accuracy. A witness can be perfectly honest and accurate or perfectly honest, but completely or partly inaccurate. To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic or fear that might have impacted their powers of observation and/or the laying down of an accurate memory? Are there issues relating to drug dependency or mental illness? How important to the witness were surrounding details of an incident or event such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event?

19. Judges do not have the ability to discern if a witness is telling the truth by only observing their demeanour. It is for that reason that the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above.

Inferences/Circumstantial Case

20. I come now to the question of inferences. If inferences are to drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference, and I should not draw such an inference unless it is the only rational inference in the circumstances.

21. Part of my role involves drawing inferences from direct evidence. They are conclusions rationally drawn from a combination of proved facts. It is possible to draw inferences too quickly and to speculate. It is important that I do not rush to an inference too quickly and I must not speculate about matters. I must approach the evidence calmly, rationally and logically, applying my reasoning to it and considering the various possibilities as to the inferences that may properly be drawn from the evidence that I am satisfied has been established. I need to look carefully at the facts that I find established, and to consider cautiously the inference or inferences that I might draw from the particular facts with which I am concerned.

22. In some cases, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.

23. In this case, the Crown relies on circumstantial evidence with respect to Counts 2 and 3. 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 a further fact or facts.

24. 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 capable of proving the guilt of the accused. However, that is not to say that all direct evidence is accepted.

25. In a circumstantial case, the Crown lacks direct evidence of that kind. A case that relies, either wholly or in part upon the drawing of inferences, may be just as convincing and reliable as a case based upon direct evidence. In a circumstantial case, no individual fact can prove the guilt of the accused. Instead the Crown will attempt to establish basic facts from the evidence. 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 the basic facts, is that an accused person is guilty of the offence charged.

26. The correct approach is first to determine what facts I find established by the evidence. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must then find the accused not guilty.

27. However, if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.

Undisputed Facts

28. The following facts are not in dispute.

29. First, it is not in dispute that a bruise is sufficient to constitute actual bodily harm with respect to count 1. Second, it is not in dispute that the intentional destruction of property is a serious indictable offence for the purposes of count 2. Third, it is not in dispute that when Ms Ellington spoke to 000 at 6.16 am on 3 August 2018, her house was on fire.

Evidence of Ms Ellington

30. Ms Ellington told the court that she had been dating the accused for about four months at the time of the fire on 3 August 2018. She said that the relationship ended a couple of days before the house burnt down and that she and the accused had been fighting in the lead-up. She said that on Wednesday 1 August 2018, the accused had threatened to burn her house down. She told the court that Ms Brennan owed the accused $50 for heroin and that he was hounding her over the money. She said that she put the money in the letterbox but then took it out and decided to keep it. Ms Ellington stated that the “threats” had been continuing from Wednesday 1 August 2018. On the morning of Friday 3 August 2018 the accused called her and apparently said “you’re a dead dog” and told her that he was going to burn her house down. She then sent him a message in response to his threats to burn the house down saying “fucking do whatever the fuck you want to the house” but asking to remove all of Jonah’s (her son’s) things first. Her responses are contained in messages numbered 29, 30 and 31 in exhibit 12.

31. Ms Ellington said that she was taken to hospital for a drug overdose at night-time on 1 August 2018. She checked herself out of hospital in the morning and was picked up by her neighbour Shontelle. When she got home, she said that Mr Mumbulla and Tyson were in her front yard. Ms Ellington and the accused started to argue as she didn’t want him in her house or near her. The accused came into her house and they had a fight upstairs. She said that he grabbed a curtain rod and struck her two or three times on the left forearm and it then snapped. She said that she believed that he was going to stab her. She stated that he was looking for drugs he thought that he had left there, but she said that he had smoked them earlier. She then apparently tried to leave the house, but the accused was standing in the door and pushed her into the lounge room. He came through the door with a knife he had found on the coffee table. She then left then house. Ms Ellington said that she told Ms Brennan what happened as she was trying to go out the door, and that Ms Brennan was in the house when this all occurred.

32. The day before the fire (2 August 2018), Ms Ellington said that she was coming back from Newcastle. On the night of the fire, Ms Ellington said that someone came up the back steps and that there was someone creeping around her house all night. She did not call the police. At about 6 am, she was sitting with Ms Brennan in the lounge room in the dark and could hear footsteps. She said that she could see an outline of someone coming towards the door. She believed that it was the accused because of all the threats he had made, so she and Ms Brennan ran away towards her sister’s home which was not far away. She stated that it was not even five minutes later that her house was on fire. She then called 000. Just after the fire occurred, Ms Ellington said that the accused rang her laughing and said “I told you it was going to happen” and “your house is on fire, have a look.” She said that she replied with abuse. Ms Ellington told the court how much the house meant to her and how hard she had worked to secure it.

33. In cross-examination, Ms Ellington revealed that a week after her house burnt down, she contacted the accused. She said that she did so because she wanted to find out why the accused had burnt her house down. She also said that the accused later bought her a pair of shoes because her brother (who was a friend of the accused) was in gaol.

34. Ms Ellington admitted that there was a text of the accused breaking up with her and that after he broke up with her, she continued to text him things such as “luv you”. However, she stated that they both knew the breakup was going to happen as they were arguing so much, but that he “didn’t like that I was agreeing with him”.

35. Ms Ellington confirmed that she consumed a “point” of methamphetamine (by injection) every second day. She also smoked marijuana and consumed Valium. She stated that Ms Brennan smoked cigarettes, but that no one was allowed to smoke inside the house. She also stated that she had been taken to hospital due to a drug overdose. Issues were also raised about her ability to afford her drug habit on her unemployment benefits and limited work as an event cleaner.

30. When describing the assault, Ms Ellington said that the accused slammed the front door and pushed her into the lounge. He went to the kitchen, slammed a steak knife on the coffee table and threatened her. She stated that Ms Brennan was there during this incident, laying back on the recliner.

31. The evidence of when she returned from the hospital, on what day that occurred, at what time of day that occurred, the timing of the assault, and when she went to Newcastle (if at all), varied throughout her evidence in chief and cross-examination. She conceded at several points that she was not sure on what dates those events occurred. She said that she lied to Mr Mumbulla when she texted him saying she was on the way to Newcastle as she had organised a lift for the next day. She conceded too that her memory of events between 1 and 3 August 2018 was affected in part by her drug taking. It is fair to say that the date of particular incidents and their timelines remain unclear with respect to 1, 2 and 3 August 2018.

32. On the day of the fire she sent the accused a text message at 5:27am saying she was going to babysit at her sister’s house and had left money for the accused in the mailbox. Ms Ellington was unable to explain why she did not go to babysit at that time.

Evidence of Ms Brennan

39. Ms Brennan lived with the complainant, and she resided in the lounge room of the house. She said that she did not know the accused but had talked to him once or twice. She had met him a few years back through Ms Ellington. She told the court that she believed that the relationship between Ms Ellington and the accused was unhealthy and abusive. She said that they would often fight, and on occasion these fights were physical. She never saw these fights, but she could hear what was going on upstairs. On one occasion, she said that she saw the accused push Ms Ellington out of the way so that he could leave the house. On a date leading up to 3 August 2018, Ms Brennan remembered that the accused hit Ms Ellington with a curtain rod. She stated that she did not see it occur, but she could “hear all the commotion upstairs” and she could hear arguing and an aggressive tone. The accused then came down the stairs and left. Ms Ellington then came down holding her arm in pain and said the accused had hit her with a curtain rod. Ms Brennan said that Ms Ellington was crying and said “he was a fucking dog. He just hit me with a curtain rod”.

40. Ms Brennan said that she owed the accused $50 for methamphetamine purchased on 2 August 2018 (not heroin), and that she gave the money to Ms Ellington to give to the accused because they were in a relationship. Ms Ellington told Ms Brennan that she wasn’t going to give him the money. Ms Brennan told the court that she smokes but was not allowed to smoke inside. She said that Ms Ellington smokes sometimes.

41. Sometime before the fire (in the early hours of 3 August 2018), and after Ms Brennan believed that Ms Ellington had a phone conversation with the accused, they both caught a taxi because Ms Ellington told Ms Brennan she was scared of the accused. They sat in the dark whilst the taxi was called. I note that exhibit 12 records a taxi arriving at 5.39 am. They drove up the road in the taxi, and then apparently returned back to the house.

42. Ms Brennan was then sitting in the lounge. She said that she saw a man standing outside in a hooded jumper trying to open the back door. She said that she assumed that it was the accused, but she could not see his face. She assumed it was the accused because he had apparently telephoned Ms Ellington and said he was coming. Ms Ellington told her to run, so they grabbed a bag and ran out the front door as the person was coming in the back door. After they ran 7-8 houses away, or for 3-5 minutes, they saw an orange light and Ms Ellington said it was her house. She then called the fire brigade who came approximately 15 minutes later. While they were watching the house, Ms Ellington was screaming, “Bill you dog”.

43. Ms Brennan said that the accused kept ringing her phone, asking her to put Ms Ellington on. She said that at one point he was on speaker, and Ms Brennan said that a male police officer was there who could hear the conversation. The accused apparently told Ms Ellington and Ms Brennan to tell the police that it was a cigarette that caused the house to alight.

44. In cross-examination Ms Brennan said that she had never spoken to the accused on the phone before 3 August 2018, but she knew what his voice sounded like. She then said she did not know what his voice sounded like on that day (3 August 2018).

45. Ms Brennan stated that she was an ice user (not a heroin user), that she injected ice and that she was unemployed on job seeker benefits. She bought ice on her pay days. She bought half a gram every fortnight which she rationed until her next pay day, but on 2 August 2018 she bought $50 worth of ice “on tick” from the accused. She and Ms Ellington were looking to purchase ice in the early morning hours of 3 August 2018. They were awake all night because they were “stimulated” from the ice they had consumed the previous day.

46. When the taxi arrived (at about 5.40am on 3 August 2018), she believed that Ms Ellington wanted to go to the early opening of the pub to gamble.

47. Ms Brennan stated that when Ms Ellington was holding her arm it was in the morning or midday - definitely day time - but she never saw the accused strike her. She said that she was unaware of Ms Ellington’s overdose, her being taken to hospital or her going to Newcastle between 31 July 2018 – 3 August 2018.

48. Ms Brennan said that she had a disability. She said that she has a very bad memory as her Multiple Personality Disorder leads to a loss of concentration. Ms Brennan stated that she has Schizophrenia, Multiple Personality Disorder and Bipolar Disorder. She said that she is on medication and is currently taking Zyprexa, anti-psychotic medications by depot injection and anti-depressant medications. Her symptoms include delusional thoughts, hallucinations, hearing voices, bad concentration, bad memory and poor energy. She said that some of her memories and perceptions could be affected by her mental health, and that sometimes she does not know what is happening because another personality comes out.

49. When asked about the hooded figure, Ms Brennan said that to be “totally honest” she may have been hallucinating. She could not say whether the figure was male or female but said the person was tall like the accused. She conceded that she assumed that it was the accused because of what Ms Ellington had said to her.

50. Ms Brennan insisted that a police officer had overheard a telephone conversation with the accused on the phone after the fire. She agreed that there was no like comment in her statement to police. There were other inconsistencies in her police statement, which she frankly admitted.

51. Ms Brennan said that she took methamphetamine to counter the effect of drowsiness caused by her other medications, and that she loses track of what she is doing and of time. She conceded that she did not have a clear and uncluttered memory of the events of 3 August 2018.

Evidence of Ms Wright

52. Ms Wright, age 46, is the cousin of the accused, and a long-time friend of the complainant, Ms Ellington. She also knows Ms Brennan as they live in the same area. Ms Wright stated that at the material time she had a couple of phones and phone numbers. From about May 2018, one of her numbers ended in 796. She stated that she lost that phone, but she could not remember when. She was asked by the Crown whether she sent a text on 22 July 2018 at 12.31 am, containing the words, “it’s Mumbulla, call me”. She denied sending it, stating that she would have been asleep at the time because she has sciatic nerve damage. She denied ever sending anyone a message pretending to be the accused.

53. In cross-examination by Mr Todd, Ms Wright accepted that when speaking to the police, she told them that she lost the phone in mid-September 2018. She confirmed that it may have been around this time, but could not remember precisely when. She further confirmed that she had previously spoken to Ms Ellington on that number.

54. Ms Wright told the court that she would loan her phone out to others and was “generous with allowing people to use that phone.” She clarified that they would use the phone in the house, but would not leave the house with it, and she agreed that it was possible for someone to take the SIM card out and use it with other devices.

55. I am satisfied that from about 22 July 2018 to 3 August 2018, the accused had the use, if not exclusive use of the phone number ending in 796. It is clear from the documents containing the text messages, being exhibits 8 and 12, that he used that number to contact Ms Ellington and Ms Brennan (and others) during that period.

Expert evidence of Mr Daly

56. Mr Daly was called as an expert witness. The expert evidence of Mr Daly was only challenged in limited ways by Mr Todd, and not with respect to his expertise. An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on relevant matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

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

58. Expert evidence was admitted to provide me, in the case of Mr Daly, with information and an opinion within his expertise as a Fire Investigator with the rank of Senior Firefighter. The evidence was admitted to provide me with an understanding of the possible causes of the fires, how it might have been lit, and the origin and direction of the fire. Accordingly, if it is not unbelievable, I would need to have a good reason to reject it – for example, that it does not fit with other facts which I have found proved.

59. Mr Daly gave evidence to the court about the fire at Trinervis Place, Macquarie Fields. He stated that by the time he arrived, the house was not on fire, but there was extant smoke and some areas were still smouldering. He conducted an external examination of the house but was unable to enter due to the structural instability of the building. An accelerant detection canine was deployed around all the external extremities and no accelerant was found. The canine was trained to detect 5 accelerants: petrol, thinners, kerosene, turpentine and methylated spirits. Mr Daly said that although no accelerant was found, it was possible that it had all been burned.

60. Mr Daly stated that the rear timber deck of the house was an area of low intense burning. He stated that there was no evidence of any electrical event, and all the switches were found in the off position. Accidental fires tend to have a slow, steady ignition. Here, there was an immediate flame observable from several houses away.

61. Mr Daly was presented with a number of situations and asked to comment on the likelihood that they could explain the fire. Mr Daly confirmed that it was very unlikely that a cigarette on the back deck would have caused this fire, as the deck is a fuel load that does not readily ignite. He was asked whether it would be different had there been a lot of detritus in the vicinity of the balcony, for example cans and papers. Mr Daly confirmed that it was still very unlikely as it would be insufficient to sustain the burning. He was then asked whether the existence of paper blinds on the back deck could have ultimately led to a fire that engulfed the house. Mr Daly said that if the blinds were paper, they would ignite but that it was still very unlikely that would spread to the house. He concluded that the cases where fires are attributed to cigarettes are “very specific circumstances and they’re quite rare”.

62. In his report dated 4 November 2018 (Exhibit 6), Mr Daly concludes that the cause of the fire was undetermined, meaning that the cause could not be proved to an acceptable level of certainty. This was because, inter alia, a thorough investigation of the area of origin was not able to be conducted. Therefore neither an accidental, nor an incendiary fire cause classification could be ruled out given the limited data collected at the scene. An incendiary fire is a fire that is deliberately set.

63. In his supplementary report, dated 6 April 2020 (Exhibit 7), Mr Daly stated that an incendiary fire cause classification was merely a possibility. At this level of certainty, the hypothesis was feasible but could not rise to the level of probable.

Evidence of Detective Senior Constable Cavan

64. Detective Senior Constable Cavan confirmed that he is the officer-in-charge of the investigation. He stated that he spoke to Ms Ellington and Ms Brennan about attempting to call the accused to try to obtain admissions after the fire. It was established that Ms Ellington used the phone number ending in 674 and that Ms Brennan used the number ending in 124. He was informed that the number the accused was using ended in 796. After receiving this information, Detective Cavan applied for a stored communications search warrant for those three numbers. He then received a stored communications document containing the text messages sent and received by the number ending in 796, which is exhibit 8.

65. Detective Cavan told that court that all attempts to contact the accused on the number provided were unsuccessful and that Ms Ellington never spoke to him. However between 19.42 to 19.49 on 3 August 2018 there were text messages from the number ending in 796 received by Ms Ellington’s phone.

66. Detective Cavan was the officer who placed the accused under arrest for the fire and advised him that he didn’t have to say or do anything unless he wanted to, and that anything he did or said would be recorded and may be used in court. In response to that, the accused said “What fire? This is bullshit.” He declined to be interviewed.

67. Detective Cavan also gave evidence about Ms Ellington’s admission to hospital due to a drug overdose. The time of the admission was almost midnight on 31 July 2018. He confirmed that Ms Ellington advised police that she broke up with Mr Mumbulla and that he was upset about it. Detective Cavan was asked whether he believed that Ms Ellington overdosed on drugs after a recent relationship breakdown, to which he said that he had not made that connection. He stated that he did not know about Ms Brennan’s mental health issues, but did know that both Ms Brennan and Ms Ellington were drug users.

Objective Evidence

68. Several items of evidence are objective and relevant. Exhibit 4 consists of 3 photographs taken on 3 August 2018 showing bruising to Ms Ellington’s left arm.

69. Exhibit 8 details all the text messages to and from the telephone number ending in 796. Of particular note are the following:

1. On 1 August 2018 there is a text message from Ms Ellington's number to the number ending in 796 at about 16.44 pm, the content of which includes, "Thanks for the fractured arm";

2. On 3 August 2018 the number ending in 796 sent a message to Ms Brennan’s phone at about 6.25 am saying “U are a dog u call the police cunt”;

3. On 3 August 2018 the number ending in 796 sent numerous messages between 6.25 am and 6.38 am to an unidentified number saying, inter alia, “say it was a smoke”;

4. On 3 August 2018 the number ending in 796 at about 6.42 am, sent a message to Ms Brennan’s phone saying “say it was a smoke fuck”;

5. On 3 August 2018, there are 16 messages from an unidentified number, between 8.03am to 10.33am, to the number ending in 796 saying “niggs ash house on fire”; and

6. On 3 August 2018 at about 23.55, there are messages from the number ending in 796 to Ms Ellington’s phone saying, “Are you OK Ware are you” and “Do you need anything”.

70. Exhibit 10 contains the records of Liverpool Hospital where Ms Ellington was admitted, brought in by ambulance with an overdose at 12.08 am on 1 August 2018. She had apparently taken an unknown quantity of alcohol, ice and Valium after a recent break-up with her partner. The notes record that a syringe was found at Ms Ellington’s home. On assessment, she was found to be unable to open her eyes wide enough for an assessment. At about 2am, Ms Ellington absconded form the hospital taking her belonging with her.

The Crown’s submissions

71. The Crown submitted that if I accept the evidence of Ms Ellington, in relation to the assault on 1 August 2018, that each essential element related to Count 1 on the indictment is made out. Ms Ellington described an assault, and injuries that resulted from it.

72. The Crown says that there was a large degree of consistency to the account she provided in relation to Count 1 and that her description remained consistent through cross-examination. Ms Brennan gave evidence that after the fight on the stairs, Ms Ellington came downstairs holding her arm as if she was in pain. Ms Brennan asked her what had happened, and Ms Ellington told her that the accused hit her with a curtain rod. It was submitted that the evidence matches the description in Ms Ellington’s version of events. Furthermore, the Crown submits that the photos of the bruises are evidence independent of the oral evidence given by Ms Ellington. No other explanation of the injury as photographed by police was provided. As previously stated, in Exhibit 12 there is a text message containing the message "thanks for the fractured arm". There was no response from that number.

73. The Crown submitted that if I accepted the evidence of Ms Ellington and Ms Brennan with respect to events that occurred in the early hours of the morning on 3 August 2018, each essential element in relation to count 2 has been made out. There is a break, being the opening of the glass sliding door, there is an entry on to the property, being on the rear porch or patio, and a brief entry into the home. The indictable offence is destroying the property by means of fire, and if I accepted that the accused caused that fire, then a serious indictable offence has been established.

74. The Crown noted that Ms Ellington described seeing a person at the rear glass door of her house, in circumstances where she said she had received threats from the accused to burn her house down on this night. Ms Ellington said she had seen the accused fleetingly, and recognised him instantly. She knew the accused intimately, and she knew what he looked like.

75. The Crown pointed to the overall tenor of Ms Ellington’s evidence. He said that she presented as someone with a steadfast and unwavering belief that the accused burnt her house down. She received calls from the accused moments after her house was on fire, when the accused laughed, and told her to have a look. She also saw the message saying “say it was a smoke.” Further, there is evidence of the complainant sending messages which related to threats to burn her house down.

76. The Crown submitted that Mr Daly was able to rule out an accidental fire, and that the uncontested evidence was that there were no open flames going in the house immediately before the fire, and there were no known electrical problems with the house. Ms Brennan was adamant she only ever smoked at the front of the house, and the evidence was that no one smoked inside. Mr Daly described the possibility of the fire being caused by dropping a cigarette butt onto a wooden deck as highly unlikely.

71. The Crown submitted that there are three conclusions to draw in relation to the speed of the fire. First, that an accidental fire went unnoticed for a substantial period of time by Ms Ellington and Ms Brennan who were inside the house. Second, Ms Ellington and Ms Brennan noted the fire, but deliberately delayed calling 000. The third possibility is the speed of the fire was assisted by accelerant. The Crown says that I would have no difficulty excluding the first two. Further, for the accused to know that the house was on fire before the call was made to 000, the Crown says discloses intimate knowledge that could only arise from someone who was there at the scene of the fire.

72. The accused sent a message to Ms Ellington at 6.42am, which read, “Say it was a smoke, fuck”. The Crown says that Ms Ellington immediately understood what the accused was trying to tell her- tell the police a cigarette caused the fire. He was upset that she called the police. He was concerned about what she would tell them, and he asked her to lie for him. At 6.38 am, two text messages were sent (to another number), “Say it was a smoke” and “Pick up”. Four minutes later that message, “Say it was a smoke, fuck” was sent to Ms Ellington. The Crown says that I would draw an inference that those first two messages were inadvertently sent to that number, before it was sent to the correct recipient, which was Ms Brennan’s phone.

73. In relation to Counts 2 and 3, the Crown says that I have consistent and believable evidence of the two witnesses who were in the house on the morning of the fire, and the phone evidence proving there was contact between the accused and the complainant before and after the fire. There was a fire moving at speed through the house which is inconsistent with one accidentally lit. There was a fire originating from the spot that two witnesses saw a person in the early hours of the morning before they ran out of the house. Further, I have text messages disclosing knowledge of things that the Crown submits could only be known if the accused was in the area.

74. The Crown submits that I would not accept all of the evidence given by Ms Ellington and Ms Brennan beyond a reasonable doubt. The Crown concedes that Ms Ellington had difficulty with certain dates and times with respect to her hospital admission. Nevertheless, the Crown said that there were aspects of her evidence, and the way in which she gave her evidence, which would enable me to accept most of what she said, and, in particular, that I would accept what she said to me with respect to the elements of the offences on the indictment. On many occasions she was unable to remember the dates, or times, some things happened. The Crown also pointed to concessions Ms Ellington made about things which did not portray her in a particularly favourable light. These included her longstanding issues with drugs, and making threats to the accused. She also conceded that she met up with the accused because she was stupid enough to still love him, after the incident.

75. Ms Brennan freely disclosed a constellation of mental health issues, including issues with her memory. However, the Crown submitted that there is objective evidence which corroborates Ms Brennan. In particular, the Crown points to the attendance of the taxi. The Crown says that combined with the other corroborating evidence, I should find that Ms Brennan was ultimately a reliable witness.

76. The Crown also submitted that Ms Brennan presented as a remarkably frank witness. He said that there were really only two inconsistencies between her statement and her evidence-in-chief upon which she was cross-examined. Those were in relation to the phone call, which she said took place in the presence of the police, and the phone contact with the accused.

The Accused’s submissions

83. Mr Todd submits that the Crown does not go far enough in conceding the lack of reliability and accuracy of Ms Ellington and Ms Brennan. He cavils with the suggestion that there can be some value placed upon the concessions that those witnesses made. Mr Todd submits that they did not volunteer those concessions about their lack of memory, their reliability, or their drug or mental health issues, but rather they had to be extracted in cross-examination.

84. With respect to Ms Ellington and Ms Brennan, he says that the lack of cogency and coherence about their versions of events are significant. It is not in respect to forgetting minor details. Rather, Ms Brennan did not observe Ms Ellington being taken to hospital, and Ms Ellington completely omitted to tell the police that she went to Newcastle, if in fact she did. The state of evidence from Ms Ellington, he says, is such that it is unclear whether she actually did in fact go to Newcastle.

85. The position of the accused is that there is a fundamental basis why I would reject the Crown case, and that is because if one looks at Ms Ellington and Ms Brennan, and if I undertake a critical analysis of their evidence, it is quite clear that the hallmarks of a good witness are lacking. The hallmarks of a good witness are ones where their accuracy, reliability and honesty are established.

86. With respect to Count 1, the assertion is that on 1 August 2018 the accused struck Ms Ellington with a curtain rod in an upstairs area of her home at Macquarie Fields. That Ms Ellington had bruises on her left arm is accepted. How and when they were caused is disputed. Mr Todd noted that there is no evidence of the age of the bruises.

87. Ms Brennan did not see the incident. When Ms Ellington informed Ms Brennan of the incident, Ms Brennan says this occurred “midday or morning”, “definitely daytime”, contrary to Ms Ellington’s various versions. For the court to accept Ms Ellington’s version, there would need to be an established basis for concluding Ms Ellington’s evidence had the hallmarks of accuracy, reliability and honesty. In Mr Todd’s submission, her evidence had none of those qualities.

88. Mr Todd submitted that each version of Ms Ellington’s story is markedly different. The first version Ms Ellington gave was to police on 3 August 2018, 2 days after the alleged incident in Count 1. In her evidence –in-chief, she told the court she was taken to hospital on the night of 1 August 2018 or the early hours but that she could not recall other than it was night time. When she allegedly returned home, she was attacked by the accused. Ms Ellington alleges that after this fight the accused threatened her with a knife in the lounge area. Ms Brennan gave no corroborative evidence that she saw the accused present with a knife in the lounge room and threaten Ms Ellington despite being present in the lounge at that time. The next sequential issue was Ms Ellington travelling to Newcastle, apparently on the day before the fire when she was allegedly receiving threatening calls from the accused including in relation to the house. In Mr Todd’s submission, it is clear that even from 3 August 2018 when she gave her first version to police, there were glaring errors and oversights in her version and patent falsehoods.

89. The medical records and the Ambulance Service documents clearly show that late on 31 July 2018/ early 1 August 2018 Ms Ellington was taken to hospital having overdosed on methamphetamine, alcohol and Valium. The notes record that she had “had a recent break-up with her partner” and that she absconded from her bed at around 2.09am. This is directly contradictory to her version to police and in chief. Mr Todd says that the evidence of when she returned from the hospital, what day that occurred, what time of day that occurred, when she went to Newcastle (if at all) are left in such a state of confusion that it is unclear what final version the witness wished to state.

90. Mr Todd submitted that Ms Ellington had a significant drug habit at the time of the alleged incident. Even when she spoke to police she believed she was “probably” affected by drugs. She conceded she consumed a “point” of methamphetamine (by injection) every second day. She also smoked marijuana and consumed Valium. The drug injection habit was long-standing, at about 10 years.

91. In Mr Todd’s submission, the purported motive does not bear up to scrutiny. It appears from a reading of the initial complaint to police, that Ms Ellington allegedly broke off the relationship and that caused the accused to be angered. Mr Todd submitted that is a lie, given the nature and extent of the text messages in Exhibit 12. The other purported basis for anger leading to a motivation to destroy the property by fire is a drug debt. At its height this appears to have been $50 owed by Ms Brennan that the accused was allegedly “hounding” Ms Ellington to repay. However, the evidence from the text messages in Exhibit 12 is that Ms Ellington initiated contact with the accused in an attempt to buy further drugs off him, offered him the $50 debt by placing it in a letterbox and otherwise was seeking drugs from the accused and others in the early hours of 3 August 2018.

92. Mr Todd says that it was open to the Crown, if they wished to do so, or the police in their investigations if they wished to do so, given the wealth of cell tower and other information they could have obtained from telephones, to find where the operator of each and every one of those phones was using it by reference to cell towers. There is no such evidence. There is nothing that would establish that the accused, or the operator of the phone ending 796, was in the Macquarie Fields area as at 3 August 2018. There is also an absence of evidence that would show forensic material to link the accused being present at the time of the fire at that house. There are no fingerprints on anything that shows a link to the property. There is no DNA showing a link to the property. There is nothing found on the accused or in any dwelling that shows clothing that was fire affected, or that was soaked in some accelerant. There are no accelerants found in or around his property. There are no forensic pieces of evidence that link the accused to that place at that time, such that he could have been said to have set the fire.

93. Mr Todd submits that there is difficulty in accepting Ms Ellington’s version that she was somehow continually being threatened that her house was going to be burned down. In his submission, it is illogical that she would continue to invite the accused back to her home, entice him to her home, keep contact with him, including offering money for drugs, while remaining in her home. It is illogical, he says, that Ms Ellington would be initiating contact and meeting with a man who had physically beaten her, burnt down her family home, laughing as he did so, and left her in a parlous state. She stated that she still then and apparently now loves the accused. Mr Todd says that this is inconsistent with her evidence that she sought to end the relationship days before the fire.

94. With respect to Counts 2 and 3, Mr Todd submitted that there is no evidence that identifies the accused as being present when the fire commenced or shortly before. The evidence of Ms Brennan on this point was clarified after an initial version that she saw the accused, to an acknowledgement that she assumed it was the accused because of what Ms Ellington had told her, not because of what she saw. Mr Todd says that Ms Brennan’s evidence must be approached with significant circumspection. She suffers from serious, multiple mental health issues which clearly affect her capacity to reason, recall and differentiate truth from fiction. Some of her evidence, including that a police officer overheard the accused speak on a telephone was patently wrong.

95. The Crown placed significant weight on a text message said to be sent from the number ending in 796 at 6.42 am on 3 August 2018. Mr Todd said that while there is no doubt the accused had access to that phone, that access was not exclusive. Exhibit 8 also shows that the communication “Say it was a smoke” was sent to a number ending in 185. This was not Ms Ellington’s number. The Crown cannot explain whether this communication was meant for the initial recipient or Ms Ellington. In any event, if the text was from the accused, it is not an admission that he had set the fire. There are in fact no admissions in any text used by the accused. It is noted that when arrested for setting the fire the accused told Detective Cavan “What fire? This is bullshit”.

96. The Crown must prove beyond reasonable doubt that the accused was not only present but set the fire and intended to burn down the property. In Mr Todd’s submission, there is no compelling evidence that an intentional fire was set when one considers the evidence of Mr Daly. At its highest he raises this as a possibility in his second report. Furthermore, Mr Daly’s second opinion proceeded on assumptions not borne out by evidence from Ms Ellington of three loud bangs or Ms Brennan seeing “a bright flash”. He submitted that the absence of this evidence in the trial from the witnesses further significantly undermines the reliability of those witnesses, and also undermines the opinion of Mr Daly in his second report.

97. Despite Mr Daly’s uncertainty over the possibility of a cause of the fire being accidental from other circumstances as arose from the evidence, Mr Todd submitted that there is evidence that a fire could have started from another source. Smoking was conducted outside, near the table on the back porch on which there were blinds. Given the lack of detection by the trained dog of any accelerant, the absence of any vessel remains that carried an accelerant, or identification by any witness of such an accelerant, Mr Todd submitted that the Crown case fails to establish there was an intentional act of destruction by the accused of the house by fire.

98. As there is no definitive identification of the accused as being present at the house at the time, and no definitive proof of how the fire was set or started, Mr Todd submits that the Crown case fails on these counts.

Identification

99. I direct myself with respect to the evidence of the identification of the accused given by Ms Brennan pursuant to section 116 of the Evidence Act, and pursuant to section 165 (1) of the Evidence Act with respect to Ms Ellington’s evidence of the recognition of the accused. These are important directions.

100. Evidence that the accused has been identified by a witness must be approached with special caution before I accept it is reliable. This direction relates only to the reliability of the identification, rather than to the honesty of Ms Brennan. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that her evidence is correct, even if I thought that Ms Brennan was entirely honest in the evidence that she gave, I must still approach the task of assessing her reliability with special caution.

101. Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.

102. I must carefully consider the circumstances in which Ms Brennan made her observation of the accused. The circumstances in which the witness made her observation of the person can affect the reliability of identification evidence, there are number of matters that have been specifically raised in this case that require consideration. First, Ms Brennan hardly knew the accused. It is obviously harder to identify strangers than it is to identify the people who are well known to us. Ms Brennan gave evidence that she relied on the description of the accused made by Ms Ellington. Second, Ms Brennan had a very limited opportunity to make her observation of the accused. It was fleeting, it was dark outside and she and Ms Ellington were sitting in the dark in the lounge room of their house. Third, both Ms Brennan and Ms Ellington had been up all night and were likely drug affected by methamphetamine at the time the alleged identification was made. Fourth, Ms Brennan has significant mental illnesses, and she conceded in cross-examination that she may well have hallucinated the event of the identification. Fifth, Ms Brennan may not have made the identification at all, but rather it could have been suggested to her by Ms Ellington.

103. In the case of the evidence of Ms Ellington, whilst she knew the accused, her evidence of recognition occurred in the same circumstances, that is it was dark outside and she and Ms Brennan were sitting in the dark in the lounge room. She too had been up all night and was likely drug affected by methamphetamine at the time of the alleged recognition. Further, she could only describe an outline or a shadow of someone whom she believed was the accused.

104. It is perhaps easier to understand the possibility of error when the evidence is given by someone who does not previously know the accused, but errors may also occur even when the witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought it was their friend or relative they had seen. Just because the witness claims to have known the person, there remains a possibility of mistake.

105. In my opinion, given the concession by Ms Brennan that she may have hallucinated the identification of the accused, her evidence is entirely unreliable on this point. As to the evidence of Ms Ellington, it is so vague as to have virtually no probative value whatsoever. I do not place any weight at all on their identification of the accused on 3 August 2018.

Section 165 warning – Ms Ellington

106. With respect to the evidence of Ms Ellington, Mr Todd requested a direction pursuant to section 165 (1)(c) of the Evidence Act on the basis that her evidence is of a kind that may be unreliable because of her use of drugs, and in particular her use of methamphetamines. Her evidence was that she was drug affected throughout the period 31 July 2018 to 3 August 2018. Furthermore she was an intravenous user of methamphetamine. I agree with Mr Todd that such a direction ought to be given. I direct myself that her use of methamphetamine during the time period in question (and over a period of about 10 years), may indicate that the entirety of her evidence was unreliable and I warn myself of the need for caution in determining whether to accept her evidence and the weight to be given to it. There are many examples in this case of Ms Ellington being unable to recall events with any precision, including the timing and content of telephone calls, that may be attributable to her significant drug use, notwithstanding the fact that the events the subject of the proceedings took place less than two years ago. I note too that she was constantly drug seeking during the relevant period. I note also that contrary to her evidence and apparently her statement to police, it was not Ms Ellington who ended the relationship with the accused. The texts in exhibit 12 demonstrate that it was the accused who had ended the relationship with Ms Ellington, and that she was angry.

107. In addition, there were at least three items of evidence that cause me concern. First there is the unexplained evidence that at about 5.30am on 3 August 2018, Ms Ellington was going to go babysit her sister’s children. Then there is evidence that a taxi was called a short while later to either go to the pub, or to escape the house because she was in fear, but that she returned home. This evidence is irreconcilable with the fear she was apparently feeling through the early hours of 3 August 2018. Finally, there is evidence that after the assault, the accused threatened Ms Ellington with a knife in front of Ms Brennan. Ms Brennan denies seeing such an incident and there is no evidence of this in their reports to police. In my opinion, the entirety of Ms Ellington’s evidence is unreliable.

Section 165 warning – Ms Brennan

108. The same can be said for the evidence of Ms Brennan, who also was an intravenous user of methamphetamine at the relevant time and was likely affected by methamphetamine in the early hours of 3 August 2018. Likewise her evidence is unreliable for the same reasons.

109. In addition, Mr Todd asked for a direction pursuant to section 165(1)(c) of the Evidence Act, because of Ms Brennan’s significant mental illnesses which include Multiple Personality Disorder, Bipolar Disorder and Schizophrenia. She was on antipsychotic and antidepressant medication (as well as methamphetamine) at the time of these events. Her symptoms include hallucinations, hearing voices, lack of energy and poor concentration. She gave evidence that her other personalities took over without notice, and as noted above, she may have hallucinated critical events. I note that it is conceded by the Crown that a police officer did not overhear a conversation she allegedly had with the accused on speakerphone, which is a matter that may be tied directly to her mental health. I direct myself that the reliability of Ms Brennan’s evidence may have been affected by her mental health and I warn myself of the need for caution in determining whether to accept her evidence and the weight to be given to it.

110. Mr Todd also asked for a direction pursuant to section 165(1)(a) of the Evidence Act with respect to the hearsay evidence given by Ms Brennan in the proceedings. The most significant piece of hearsay evidence given in the proceedings by Ms Brennan, was her statement that Ms Ellington told her that the accused had assaulted her with a curtain rod, although she attributed many other statements to Ms Ellington. These are reports of what another person said. For the reasons already given, I direct myself that the reliability of Ms Brennan’s evidence, both generally and for hearsay purposes requires me to exercise caution in determining whether to accept her evidence and the weight to be given to it. I find Ms Brennan’s evidence to be unreliable.

111. There were several other oddities about the evidence of both Ms Ellington and Ms Brennan that deserve mention and are matters that I take into account when considering their reliability.

112. There is no doubt that Ms Ellington was admitted to hospital early in the hours of 1 August 2018 (brought in by ambulance), having overdosed on methamphetamine, Valium and alcohol. She discharged herself against advice and returned home. Ms Brennan had absolutely no knowledge of these events – either that Ms Ellington was taken away or that she came home. I consider Ms Brennan’s and Ms Ellington’s evidence at or about the time of these events to be unreliable.

113. At the time of the events, Ms Brennan was living in the lounge room of Ms Ellington’s home. Soon after she arrived home, Ms Ellington says that she was assaulted by the accused (and after which Ms Brennan says Ms Ellington told her that he accused hit her with a curtain rod). Ms Ellington said that the accused then attacked her with a knife in the lounge room. Ms Brennan said that she knew nothing about this, at a time when she must have been present, and if it occurred would have been extremely alarming. I am unable to accept this evidence.

114. Ms Ellington gave conflicting evidence about soon thereafter travelling to Newcastle to see her father. Such is the state of the evidence that I cannot be sure on what day she travelled to Newcastle, or indeed if Ms Ellington travelled to Newcastle at all. Ms Brennan had no knowledge or memory of Ms Ellington travelling to Newcastle. She gave evidence that it was at that time that the accused threatened to burn her house down, and after which she texted him love heart emojis. This is inconsistent with the threats.

115. As I have said, I find both Ms Ellington’s and Ms Brennan’s evidence to be unreliable. The objective evidence alone does not discharge the onus which the Crown bears.

Consideration – Count 1

116. The evidence of Ms Ellington and Ms Brennan is entirely unreliable, and given that the objective evidence alone leaves me with reasonable doubt, I am not satisfied that the accused assaulted Ms Ellington on 1 August 2018. I therefore find the accused not guilty of Count 1.

Consideration – Count 2

117. For reasons already expressed that the evidence of Ms Ellington and Ms Brennan is unreliable and the lack of evidence linking the accused to the house, I am not satisfied beyond reasonable doubt that the accused broke and entered the premises on 3 August 2018. I therefore find the accused not guilty of Count 2.

Consideration – Count 3

118. For reasons already expressed about the evidence of both Ms Ellington and Ms Brennan, the lack of identification evidence, and the conclusion of Mr Daly which states that an incendiary fire could not even rise to the level of being probable, I am not satisfied beyond reasonable doubt that the accused intentionally destroyed the property by means of fire on 3 August 2018. I therefore find the accused not guilty of Count 3.

Conclusion

119. Whilst I remain circumspect about what in fact transpired between 1 August and 3 August 2018, I entertain a reasonable doubt about the essential elements of each offence in dispute. I find the accused not guilty of all 3 Counts.

ANNEXURE “A”

ELEMENTS

Count 1 – Assault occasioning Actual Bodily Harm

There are two elements for this charge, which the prosecution needs to be prove beyond a reasonable doubt.

They are:

1. On 1 August 2018 the accused assaulted Ashley Ellington, and

2. The assault caused Ashley Ellington to sustain actual bodily harm.

An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

The term ‘bodily harm’ is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent but must be more than merely transient or trifling.

It is not necessary for the prosecution to prove a specific intent to cause actual bodily harm. It is sufficient if the accused intentionally or recklessly assaults the victim and actual bodily harm results.

Count 2 – Break, enter and commit serious indictable offence

There are three elements for this charge which the prosecution needs to be prove beyond a reasonable doubt.

They are:

1. On 3 August 2018 the accused broke and entered the premise described;

2. That the premises was a dwelling house located at 3 Trinervis Way, Macquarie Fields; and

3. That inside the dwelling the accused committed a serious indictable offence, namely intentionally destroying property by means of fire.

‘Broke’ is not defined in the Crimes Act 1900 but means forcibly gained access. It includes opening an unlocked but secured door and opening a closed but unlocked window.

‘Entered’ means went inside.

‘Dwelling house’ is defined in S4(1) of the Crimes Act 1900 and means:

1. any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,

2. a boat or vehicle in or on which any person resides, and

3. any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

Serious Indictable Offence is defined in S4(1) of the Crimes Act 1900 and means:

an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more

There are 3 elements for the serious indictable offence of intentionally destroying property by means of fire which the prosecution needs to prove beyond a reasonable doubt.

They are:

(1)   On 3 August 2018 the accused intentionally destroyed property;

(2)   That the property belonged to another; and

(3)   That the destruction or damage was caused by means of fire or explosive

Count 3 in the Alternative to Count 2 – Intentionally destroying property by means of fire

There are three elements for this charge which the prosecution needs to be prove beyond a reasonable doubt.

They are:

1. On 3 August 2018 the accused intentionally destroyed property;

2. That the property belonged to another; and

3. That the destruction or damage was caused by means of fire or explosive.

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Decision last updated: 19 May 2020