R v Stirling

[2022] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stirling [2022] QCA 44

PARTIES:

R
v
STIRLING, Scott Gregory
(appellant)

FILE NO/S:

CA No 276 of 2020
DC No 2405 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 27 November 2020 (Rinaudo DCJ)

DELIVERED ON:

1 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2021

JUDGES:

Fraser and McMurdo JJA and Applegarth J

ORDER:

Dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where after a trial in the District Court over five days the appellant was found guilty by a jury, by majority verdicts, of one count of arson (count 1) and four counts of endangering property by fire (counts 2-5) – where the appellant appeals against his convictions upon the ground that on each count the verdict was unreasonable and cannot be supported having regard to the whole of the evidence – whether upon the whole of the evidence it was open to the jury to find that the prosecution proved beyond reasonable doubt that the appellant was guilty of each count

Criminal Code (Qld), s 461, s 462

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Webb; Ex parte Attorney-General (Qld) [1990] 2 Qd R 275, cited

COUNSEL:

J R Hunter QC for the appellant
D Nardone for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  A building at 9 Pritchard Road, Virginia was destroyed by a fire which started in the afternoon of Sunday 24 September 2017.  Four adjacent buildings were damaged by the fire.

2. After a trial in the District Court over five days the appellant was found guilty by a jury, by majority verdicts, of one count of arson (count 1) and four counts of endangering property by fire (counts 2-5).  The appellant appeals against his convictions upon the ground that on each count the verdict was unreasonable and cannot be supported having regard to the whole of the evidence.

3. It was formally admitted at the trial that the business Automotive Repair Parts Pty Ltd trading as All Bumpers and Headlights (ABH) leased business premises at 9 Pritchard Road, Virginia, the appellant’s wife “bought the business…[ABH] on the 1^st of  October 2015”, the appellant’s wife was the director and secretary of ABH, and the appellant was the general manager of ABH.  The business of ABH involved the acquisition of second-hand bumper bars and headlights, the repair and improvement of those products in a building at the premises, and the sale of the refurbished products.  The appellant focussed upon the production and sale of the refurbished bumper bars and headlights and he managed the employees.  The appellant’s wife was primarily responsible for administration and accounts.

   Count 1

4. The Crown gave particulars of the charge of arson in count 1 that the appellant wilfully and unlawfully set a fire within and/or set fire to the premises at 9 Pritchard Road. The onus lay upon the prosecution to prove beyond reasonable doubt that the appellant set fire to the building, he did so wilfully, and he did so unlawfully. The word “wilfully” in s 461 of the Criminal Code, which creates the offence of arson, refers to “an intended consequence or a consequence which is in mind as likely but is recklessly ignored”.[1]  In respect of this element of the offence, the Crown narrowed its case to an allegation that the appellant intentionally set fire to the building.  Upon the evidence there was no reason to think that if the appellant did deliberately start the fire he might have done so lawfully.  When defence counsel addressed the jury, he disclaimed any suggestion to that effect.  The only real issue upon count 1 at the trial was whether the evidence proved beyond reasonable doubt that the appellant had deliberately set fire to the building.  That was the only issue upon which defence counsel addressed the jury.

   [1]R v Webb; Ex parte Attorney-General (Qld) [1990] 2 Qd R 275 at 278 per Macrossan CJ, Lee J agreeing (see also at 286 per Thomas J), citing R v Lockwood;Ex parte Attorney-General (Qld) [1981] Qd R 209.

5. On the Crown case, proof that the appellant deliberately lit the fire was established beyond reasonable doubt by various circumstances proved in evidence.  The appellant gave evidence at the trial in which he denied that he started the fire.  It is submitted for the appellant that the Crown case did not rise above evidence justifying a suspicion that the appellant set the fire.

6. The ground of appeal that the verdict was unreasonable and cannot be supported having regard to the whole of the evidence requires the Court to weigh all the circumstances in deciding whether it was open to the jury to infer that guilt had been proved to the criminal standard, and that inference will not be open if the prosecution has failed to exclude any inference consistent with innocence that is reasonably open on the evidence.[2]  Although it is convenient first to discuss the evidence relating to count 1 that is significant for this appeal under five headings, I bear in mind that in a circumstantial case it is necessary to consider all of the circumstances together, rather than in a piecemeal way.[3]

   [2]Coughlan v The Queen (2020) 267 CLR 654 at [55].

   [3]R v Baden-Clay (2016) 258 CLR 308 at [47].

   1.   Opportunity

7. An expert in the determination of the origin and causes of fires, Mr Lundy, gave evidence.  He had been a career fire fighter for more than 30 years, had 14 years experience in the investigation of fires, had obtained diplomas and other relevant qualifications, and participated in the delivery of State and regional fire investigator training.  Mr Lundy was in a nearby suburb when he heard a radio call for a fire station to attend to an industrial fire at Pritchard Road.  He drove to the fire and observed it.  During the day there were about 107 fire fighters with 24 fire trucks fighting the fire.  After the fire was extinguished and it was safe to enter the site, Mr Lundy examined what remained.  He was unable to determine the cause of the fire.

8. A diagram in evidence shows the layout of the building and describes places and items within it.  Ms Stirling’s office, the sales area, and a bathroom were within a relatively small area of the building near the front door.  The diagram notionally divides the remaining length of the building into seven parallel sections designated “C1” through to “C7”.  C1 is depicted as being adjacent to and separated by doors from the area at the front of the building.  The identifying numbers of the notional sections increase in accordance with increases in the distance from the front of the building.

9. In the course of evidence-in-chief, Mr Lundy identified numerous features of the building and its contents shown on various photographs, videos and diagrams produced after the fire.  Mr Lundy explained his opinions, and the bases for them, about what those exhibits revealed about many facts, including the nature and extent of damage to the building and items within it at different places, degrees of heat required to cause the different kinds of fire damage (including melted steel and glass), whether damage depicted on the exhibits was a direct consequence of heat or of structural collapse and, in the latter event, the chronological order of the collapse.  Time stamps on the CCTV footage of the fire taken from premises across the road from the building showed that smoke was first released from the building at 15.24.42, the fire progressively developed, and between 15.29.07 and 15.30.06 two people came out the front door of the building.[4]  With reference to the CCTV footage Mr Lundy identified a vent within the fascia of C4/C5 where visible smoke was first released from the roof after the commencement of the fire.[5]

   [4]Transcript 23 November 2020 at 1 - 46 to 1 - 48, referring to the recording exhibit 8.

   [5]Transcript 23 November 2020 at 1 - 27.

10. Mr Lundy explained how his observations and what was depicted on the exhibits he discussed led to his opinion that the fire originated within C4/C5 and spread out from there to other parts of the building.[6]  In cross-examination defence counsel did not make any substantial challenge to that opinion or the main factual bases for it.  It was open to the jury to accept that evidence.

    [6]See, in particular, transcript 23 November 2020 at1 - 27 to 1 - 28, 1 - 32 to 1 - 42.

11. Mr Lundy agreed in cross-examination that he was not able to form an opinion as to the point of origin of the fire or the source of ignition.  Consistently with Mr Lundy’s evidence-in-chief, in re-examination Mr Lundy gave evidence that his reference in cross-examination to the point of origin of the fire was to the precise location at which the ignition sequence commenced.[7]  As another answer Mr Lundy gave in re‑examination also indicates,[8] his agreement in cross-examination that he could not determine the point of origin is not inconsistent with the opinion he expressed in evidence-in-chief that the fire started within the area of C4 and C5.

    [7]Transcript 23 November 2020 at 1 - 57.

    [8]Transcript 23 November 2020 at 1 - 58.

12. The appellant’s wife gave evidence in the Crown case.  She and the appellant often worked at the building seven days a week.  On the day of the fire, they drove to the premises, stopping to buy take-away lunch.  They arrived at about 1.30 pm or 1.40 pm.  After they had finished lunch, Ms Stirling stayed in her office and the appellant went to the production area to work on the repair of bumper bars and other tasks.  From her office Ms Stirling saw the appellant walk into the sales area and through a sliding door into the workshop.  Shortly afterwards Ms Stirling heard a compressor starting up.  Later, perhaps after an hour, she saw the appellant return, walk past her office, and go into the bathroom.  He stayed in the bathroom for what Ms Stirling thought was ten to 20 minutes, after which he walked back into the production area.  Within a couple of seconds, the appellant ran back into the sales area, yelling to Ms Stirling “get out, there’s a fire” or something to that effect.

13. Ms Stirling ran into the sales area adjacent to her office.  She saw black smoke coming through the sliding door between the sales area and the production area.  She and the appellant ran out through the front door of the building and out of the premises through the front gate.  Ms Stirling unlocked the front door and the front gate on the way. (She had locked them after she and the appellant had entered earlier that day because they were the only people at the premises.)  As they ran towards the front gate, the appellant yelled at her to call 000.  Ms Stirling replied she needed to open the gate.  The appellant called 000 himself.  When Ms Stirling looked back, the fire was very bad.  She ran further away to safety.  The appellant was a little bit behind her.  She called to him to get away from the fire.  The appellant said something about his car or his wallet being in a car or something.  She showed him that she had the keys.  He asked whether he should go back and get the car.  She said to do so only if it was safe.  The appellant ran back, flung the gate right open, quickly jumped in the car, and drove to neighbouring premises.

14. The appellant gave very similar evidence.  After he left Ms Stirling’s office and went into the workshop, he powered up a spray booth, preparation booth, heat room and compressor.  According to the diagram of the building in evidence and Mr Lundy’s evidence, those booths were in the area of C4 and C5.  The appellant gave evidence that he opened two rear roller doors and turned on the lighting, which activated the overhead air system (for the control of dust).  He then began preparing bumper bars for painting.  He agreed he was in the production area for an hour or a bit longer before he went back through the office and into the bathroom.  In cross-examination the appellant agreed that in his statement to police on 24 September 2017 he stated he stopped for a toilet break at about 3.30 pm.[9]  He estimated that he was in bathroom for about ten minutes.

    [9]Transcript 26 November 2020 at 4 - 20.

15. Upon the evidence described up to this point, the jury could find the appellant had ample opportunity to set fire to the building during the period when he was alone in the area of the building where the fire started.

    2.   Motive

16. The parties formally admitted that for the relevant period ABH held a policy of business insurance which included contents cover for $1,200,000, business interruption cover for $502,000 (which included $462,000 for gross profit) and glass at replacement value.  ABH also held a vehicle insurance policy for the relevant period which covered three motor vehicles it owned.  On the morning after the day of the fire Ms Stirling lodged claims with the insurers.  The insurance companies assessed the claims at $1,875,000 (excluding GST and minus a $400 excess) and $23,950 respectively.  The appellant acknowledged in his evidence that he had been involved in obtaining the insurance and had remained aware of it.[10]

    [10]Transcript 26 November 2020 at 4 - 3.

17. The unsurprising fact that ABH held insurance covering risks of fire supports the Crown case when it is considered in combination with evidence that, as the appellant knew, ABH was under substantial financial pressure in the months leading up to the fire.

18. The appellant submits that the financial position of the business is perhaps best explained by the tax returns for the periods ended 30 June 2016 (exhibit 12) and 30 June 2017 (exhibit 32).  For the earlier period, the return records about $632,000 in total assets (with opening stock at zero and closing stock at $145,198), income from sales of $1,165,448 (and a small amount for interest), and total expenses in a larger amount so that the business incurred a net loss of $275,145.  For the later period, the return recorded total assets of about $922,000, closing stock at about $626,000, income from sales of $1,276,284 (and a small amount for interest), and, after the deduction of total expenses, a net profit of $203,301.  Ms Stirling gave evidence that she and the appellant commenced to operate the business in October 2015, so the return for the period ended 30 June 2016 reflected only about nine months or so of trading.[11]

    [11]Transcript 2 - 70.

19. Upon that evidence the appellant submits that the position of the business had improved in the 12 months to 30 June 2017 by an increase in profitability of $475,000.  I note that the later return allowed a credit for the cost of sales of $119,169 whereas the earlier return allowed cost of sales of $193,778, and the later return included no amount for rent expenses but the earlier return allowed $178,948 on that account.  Putting that aside, it was in any event open to the jury to regard uncontroversial evidence of ABH’s failure to pay its employees’ wages and other overdue debts, and of all of the full time employees having ceased to work for ABH shortly before the date of the fire, as a much more reliable guide to ABH’s financial position.

20. Mr Spall had worked for the previous owners of the business and continued to work when it was taken over by Mr and Mrs Stirling on 1 October 2015.  His role was to drive a truck to pick up damaged parts from panel shops, bring them back to the business premises, sort out the good parts and the bad parts, and make any emergency deliveries or give any help around the workshop where required by the appellant.  Mr Spall estimated that before Christmas in 2016 there were at least 10 people employed in the business, including three people repairing bumper bars, people employed to sand, prime and sand bumper bars, a painter, and delivery drivers.  Mr Spall gave evidence that all the staff left in August 2017.  He also gave evidence about defaults in the payment of his wages in late 2016 and in 2017.  When he raised that with the appellant, the appellant told him there was a problem with panel shops paying their accounts on time and gave other excuses.  No staff was left at ABH by the time Mr Spall went on holidays in September 2017.  In cross-examination, Mr Spall agreed he was not paid for a fortnight’s work during the Christmas holidays until that pay was included in a catch-up payment in January 2017, he was then paid as normal until 21 July 2017, he was not paid the fortnightly pay due on 21 July 2017, he received one fortnightly payment on 18 August 2017, and he was asked to take leave on 1 September 2017.  It was suggested to Mr Spall that he did not return to work on Monday 18 September 2017 despite the appellant having told him he could come back in that week.  Mr Spall responded that he did not return to work because he was told not to.

21. Mr Lay worked for the business as a “parts interpreter”.  He gave evidence that in the period around Christmas 2016 his pay was inconsistent; he would get only half of a fortnight’s pay and a week or so later the other half would be paid.  When he spoke to the appellant, he referred him to Ms Stirling.  When he spoke to her about it, she referred him back to the appellant.  He ceased to work for ABH on 18 August 2017, by which time he had not been paid for six weeks’ work.  Mr Goodenough worked for the business between 25 July and 4 August 2017.  When he asked the appellant about payment the appellant said it was going to be about six to eight weeks.  Mr Parker gave evidence he had worked for the previous owner of the business and he worked for another six months in 2017 as a repairer and painter.  At the conclusion of that work he was owed $4,000, which he was not paid.

22. The appellant agreed in cross-examination that the evidence given by other witnesses about unpaid wages was accurate.  The appellant also gave evidence that as at 20 September 2017 he was not able to keep working because he had a sore back, by 24 September his back was still sore but he was able to do some light duties at work on that day, and in the intervening days “the shop was shut because no one else was going over there.”[12]

    [12]Transcript 26 November 2020 at 4 - 26 to 4 - 27.

23. I will refer only to some of the more significant overdue debts outstanding at the date of the fire:

    (a)An Australian Tax Office running balance account statement dated 23 September 2017 required payment immediately of $204,234.17, comprising an opening balance as at 27 August 2017 of $160,630.72 together with additional PAYG tax, GST, and general interest charges.[13]  Ms Stirling’s explanation for this was that a monthly payment plan with the Australian Taxation Office had lapsed around 11 September 2017, “I just hadn’t contacted them again yet to get another one in place”, and if a plan was not completed or a payment was missed and a letter of this kind was received there was a process for re-negotiating a fresh plan.[14]

    (b)An Australian Tax Office superannuation guarantee employer statement of account dated 6 October 2017 required immediate payment of an overdue amount as at 3 October 2017 of $60,613.65, of which $60,416.17 represented the opening balance as at 18 September 2017.[15]  Ms Stirling adopted as her explanation for this the explanation she had given in relation to the preceding document issued by the Australian Taxation Office.  She said that both debts were overlooked because of cashflow difficulties and her and the appellant’s minds were focussed upon compliance issues with Queensland Fire and Brisbane City Council.[16]  Ms Stirling also gave evidence that directions issued by the Brisbane City Council and Queensland Fire and Emergency Services in about July 2017 required ABH to reduce the volume of stock stored at the premises, and that represented an additional cost with no net return.[17]

    (c)A letter of 25 September 2017 from Origin Energy Electricity Ltd to ABH referred to previous correspondence and threatened disconnection of the electrical supply to 9 Pritchard Road unless full payment was made of a total amount due of $17,279.89, being the sum of outstanding amounts for invoices issued between 8 June and 4 September 2017 with due dates between 22 June and 18 September 2017.[18]  Ms Stirling described the letter of 25 September 2017 as “just their notification, because we didn’t have an arrangement in place at that time”, a previous payment arrangement having expired.[19]

    (d)On 13 September 2017, Telstra issued a notice (“Suspension notice – pay now to stay connected”) threatening to suspend services if ABH did not pay the full overdue amount of $2,641.50 before 23 September 2017.  A subsequent cancellation notice dated 27 September 2017 states that Telstra had suspended the account because it hadn’t received payment despite its repeated request.  A statement of the same date records that the account was for six different mobile numbers, four different fixed line numbers, and two internet and data services.[20]  In cross-examination Ms Stirling gave as her explanation for the non-payment of this debt that she became frustrated with Telstra about a credit she said Telstra owed ABH in the amount of $765.[21]

    (e)A letter from Concept Paints to Ms Stirling of 4 October 2017 recorded that it had not received any payment, or any communication from Ms Stirling or ABH, in relation to the letter from Concept Paints of 22 September 2017 which demanded an outstanding amount of $7,755.84, being the total of amounts claimed in invoices dated between 7 June and 4 August 2017.  The letter of 22 September 2017 recorded that despite reassurances from Ms Stirling the account remained significantly overdue, Concept Paints had made several attempts to contact her, and if payment was not received within 21 days Concept Paints reserved the right to commence legal action.[22]  Ms Stirling said that Concept Paints was the primary paint supplier for ABH.  She said no amount had been outstanding for more than 60 days and “we had, I guess, a verbal arrangement with them, with their salesperson, that they knew we would pay that off across a number of months.”[23]

    (f)A letter from Auto Parts Group to the business (copied to Ms Stirling and to the appellant) referred to its letter of demand dated 29 August 2017 requiring payment of outstanding vendor finance invoices by 6 September 2017.  The total amount owing as at 22 October 2017 was said to be $255,374.65 (plus interest), comprising a series of amounts including $35,033.34 (outstanding principal and interest pursuant to vendor finance invoices dated between 18 January and 28 August 2017), $138,284.46 (outstanding balance of the vendor finance), and $14,604.85 for goods and services provided by Auto Parts Group pursuant to a trading account and the vendor finance agreement.[24]

    [13]Exhibit 13.

    [14]Transcript 24 November 2020 at 2 - 79.

    [15]Exhibit 14.

    [16]Transcript 24 November 2020 at 2 - 80.

    [17]Transcript 24 November 2020 at 2 - 76 to 2 - 77.

    [18]Exhibit 17.

    [19]Transcript 24 November 2020 at 2 - 78.

    [20]Exhibit 21.

    [21]Transcript 24 November 2020 at 2 - 78.

    [22]Exhibit 27.

    [23]Transcript 24 November 2020 at 2 - 81.

    [24]Exhibit 31.

1. The jury could consider that the explanations given by Ms Stirling for the failure to pay amounts outstanding tended to confirm that in the months leading up to the fire ABH was very substantially impacted by a severe cashflow shortage.

2. Ms Stirling gave evidence that she owned another business for which there was an outstanding loan of $100,000.  The loan was in the name of Evoke Enterprises Pty Ltd and a bank statement showed the full amount of the loan remained owing before and after the date of the fire.[25]  The appellant assisted her from time to time in the Evoke Enterprises business and he was aware of the loan.[26]  Bank statements for eight other accounts, variously held by the business, the appellant and Ms Stirling, the Stirling Family Trust, and Evoke Enterprises Pty Ltd, record small balances in August and September 2017, extending from a debt of about $10,000 up to a credit of less than $3,400.[27]  The highest available credit recorded in these statements is about $16,000, in a business account in the name of the appellant.[28]  In addition, the appellant and Ms Stirling were indebted to a bank under a home loan of approximately $600,000.  The balance outstanding as at 6 August 2017 was about $460,000, with monthly interest payments exceeding $1,600 during the period of six months up to that date.[29]

   [25]Transcript 24 November 2 - 60 (evidence of Ms Stirling) and exhibit 42 (the bank statement).

   [26]Transcript 24 November 2 - 60.

   [27]Exhibits 37, 39 - 41, and 43 - 44.

   [28]Exhibit 36.

   [29]Exhibit 38 (bank statement).

3. Mrs Stirling gave evidence in cross-examination that “there were some short-term cashflow problems, but outside of that, again, we had full confidence that we would be able to trade out of those, and pay all of the liabilities.”[30]  After giving evidence that the prospect of insolvency did not cross her mind she was asked what did cross her mind.  Ms Stirling answered, “Just whether we would be able to keep, and eventually pay those liabilities.”  The jury could regard this answer as tending to confirm that ABH was in a parlous financial position.

   [30]Transcript 24 November 2020 at 2 - 73.

4. Ms Stirling gave evidence that she did not ever tell the appellant that the business was in dire financial straits,[31] but she did not give evidence that she communicated to the appellant that she believed that ABH could trade out of the cashflow difficulty it was facing.  She gave evidence that the appellant was at some point in time aware of the $205,000 owed to the Australian Taxation Office, in a general sense she had discussed with him the $60,000 owed to the Australian Taxation Office, she discussed with him the “big-ticket numbers in the business”, and they discussed “short-term cash problems”.[32]  The appellant had worked for the previous owner of the business, Auto Parts Group.  He had negotiated the price for the purchase of the business with Auto Parts Group, which entered into a vendor finance arrangement with ABH.  M Stirling and the appellant managed the relationship with Auto Parts Group.  She discussed with the appellant the revenue and expenses of the business on a general basis.

   [31]Transcript 24 November 2020 at 2 - 82.

   [32]Transcript 24 November 2020 at 2 - 84.

5. The appellant gave evidence that at 24 September 2017, “We certainly had some cashflow issues”, they had reduced their trading somewhat to comply with the requirements of fire safety and the Council, and their trading was “suffering immensely” from that.[33]  The appellant added that they had “made the decision to just sort of close the front door somewhat ... restructure the workshop and then re-employ fresh staff … to move forward again”; and he referred to having access to support from family and other financial ways of moving forward.  The appellant acknowledged in cross-examination that he was aware of the large outstanding debt owed to Auto Parts Group,[34] he was aware of a “big ticket item” owing to the Australian Taxation Office for business tax and more than $60,000 for a superannuation guarantee debt, he was aware that ABH was unable to pay its employees and this was a part of its cashflow problems.[35]  Upon the evidence of the appellant and Ms Stirling and consistently with the admitted fact that the appellant was the general manager of ABH, the jury could safely conclude that the appellant fully appreciated that ABH then suffered a severe cashflow shortage which substantially impacted the business.

   [33]Transcript 25 November 2020 at 3 - 107 to 3 - 108.

   [34]Transcript 26 November 2020 at 4 - 3.

   [35]Transcript 26 November 2020 at 4 - 4 to 4 - 9.

6. The appellant referred to a drawback facility on a home loan, so that “there was cash there if required at a given time”.  In re-examination the appellant confirmed his evidence that about $464,000 was outstanding on that loan in September 2017 and he said that the value of the home was about $850,000 or $880,000.[36]  Neither Ms Stirling nor the appellant explained how that evidence was to be reconciled with ABH’s failure to pay overdue debts for wages, other services and goods it required to conduct its business.  The jury could consider that the appellant and Ms Stirling had not been prepared to draw down on any drawback facility they had, or to otherwise borrow against any equity they had in their home, for the purpose of paying ABH’s debts.

   [36]Transcript 26 November 2020 at 4 - 30.

7. The appellant confirmed the truth of the statement he made in a message to an employee, Mr Parker, on 4 August 2017 that it was gut-wrenching to be unable to pay his wages; Mr Stirling said “it was a sick feeling not being able to pay the staff that you work beside every day and they’ve worked for you for a long time”.  Despite that evidence, Mr Stirling did not agree he was under financial pressure and stress because of how the business was travelling.  He said the pressure at that point “wasn’t financial” but concerned compliance with City Council and Fire Department requirements,[37]  but the appellant also agreed that addressing the requirements of the fire authorities and the Council required ABH to dump potentially valuable stock (very large numbers of bumper bars stored outside the building that had not yet been refurbished).  The situation was dire enough for ABH to call in family and friends to help for free and to engage “random casuals or people who would take $200, $300 a night to move bumpers”.  The focus upon those compliance issues, having to remove bumpers and headlights, obviously reduced sales of the company.[38]

   [37]Transcript 26 November 2020.

   [38]Transcript 26 November 2020 at 4 - 11, 4 - 13.

8. That body of evidence, and particularly the evidence that ABH had ceased to pay its full time employees all of whom had left their employment with ABH by some weeks before the fire, and the appellant’s statements in text messages that he found it “gut-wrenching” to be unable to pay Mr Parker’s wages and he had “a sick feeling” about not being able to pay staff, amply justified the jury in concluding that by the time of the fire the appellant was under very substantial pressure as a result of ABH’s inability to pay or retain any of its full time employees or to pay overdue debts for goods and services that were essential for the conduct of its business.

   3.   Attempts to engage others to set fire to the building

9. A transcript of text messages between the appellant and Mr Parker between June and October 2017 was admitted in evidence.  In the period up to 21 August 2017 many of the messages from Mr Parker to the appellant contained requests to be paid outstanding wages and references to him having no money and needing money to pay bills.  On 20 September 2017 the appellant sent a message asking Mr Parker to call him, noting it was “Not work related”.  Nearly immediately afterwards, Mr Parker’s phone connected with the appellant’s phone for about 11 minutes.  Thirty minutes after that call ended, Mr Parker sent a message to the appellant “Can’t do it sorry”.

10. The exhibit records the following communications between the appellant and Mr Parker on 20 September 2007 within a period of about an hour and a quarter after Mr Parker had communicated to the appellant that he could not do it:[39]

    [39]Exhibit 54.  The misspellings are in the transcript.

Sender

Text

Appellant

Tomorrow

Mr Parker

No sorry

Appellant

Oh

At all

Mr Parker

Can you do some cash up front??

Appellant

How much

Mr Parker

How much can you do

Appellant

I dont know i will borrow from my old man

What ever u need

Appellant

Can u collect from me to night  an do tonight

Mr Parker

Thats what my plan was

Appellant

500

Mr Parker

If that’s all you can get

Appellant

I know he will have that is that cool

Mr Parker

Na I don’t think I should do it too  much heat I took a sqise today im sorry you know I would but not this

Appellant

You are my only chance please

I wouldn’t ask

No one else I know that would

Appellant

I can try for more $$

Possibly 1000 or close to just wAiting for a call

Back

Mr Parker

I can get someone but they would need

atleast 2000 first

Appellant

Cant do

And if not you not keen as need to know shop

Mr Parker

They do know the shop

Appellant

I can do 1k up front dad just confirm

Feel better if u handle

Appellant

Need asap tho

Mr Parker

No cant sorry i just can’t

Appellant

Why

Mr Parker

I just told you too much heat for me

Mr Parker

Ask jade for Phil[40]

Appellant

Its walk in mate walk out no chance of anything

Mr Parker

(A call to the appellant occupied three seconds)

Appellant

Call back in few minutes

Appellant

He has already fucked me fella and disappeared phone iff for a week now

Already paid as well

Mr Parker

Let me know when your free

[40]The appellant gave evidence that “Phil” was Mr Campbell, and he (the appellant) knew Jade (or “J”), and at this point Mr Campbell had worked for the appellant for about five or six days.

1. After the last message, the appellant’s telephone connected with Mr Parker’s telephone for about ten minutes on the same day, Wednesday 20 September 2017.  On Thursday 21 September the appellant made 14 unsuccessful attempts to contact Mr Parker, by telephone calls or messages.  On Friday 22 September the appellant sent a text to Mr Parker very early in the morning asking Mr Parker to call him, he unsuccessfully attempted to call him twice about an hour later, and he then sent a text to Mr Parker asking, “Why wont you return a call fella?”.  The exhibit does not record any further communications between the appellant and Mr Parker until after the building had been destroyed by fire on Sunday 24 September.

2. Mr Parker gave evidence that in the 11-minute phone call mentioned in [32] of these reasons the appellant asked if Mr Parker could burn the factory down or help the appellant with it.  The appellant said that that was the only way he could get money out of it “and all of us get our money”.[41]  Mr Parker gave evidence that he responded that he would think about it and he then spoke to his partner.  He was not sure if they discussed how he would burn the factory down in the first conversation with the appellant or another one, but he thought it was in a further conversation.  He was not too sure what they discussed in the further conversation, he couldn’t remember, the appellant just asked him to do it.  Mr Parker’s statement to the appellant that he “took a squiz today” was not true.  He did not know “Phil’s” surname.

   [41]Transcript 25 November 2020 at 3 - 52.

3. In cross-examination Mr Parker agreed his partner had become so angry about him not listening to her when she told him that he should stop work for the appellant that he thought that he was going to lose her.[42]  Mr Parker rejected defence counsel’s suggestion that the 11-minute telephone call was about moving bumpers out of the workshop to comply with the directions of the Queensland Fire and Emergency Services.[43]  The appellant gave evidence that in the 11-minute phone call he and Mr Parker discussed the wages, the appellant explained the work required by the Fire Department and the Council, and the appellant asked Mr Parker to give the appellant a hand to do some of that work.  The appellant’s explanation for his messages that he would try to find more money to pay Mr Parker was that Mr Parker could identify whether a bumper bar was a good or bad unit and decide if it should be relocated through the shop.

   [42]Transcript 25 November 2020 at 3 - 57 - 59.

   [43]Transcript 20 November 2020 at 3 - 60 to 3 - 61.

4. The appellant’s evidence is not consistent with his statement to Mr Parker in the message immediately preceding the 11-minute conversation that the appellant wished to speak to Mr Parker about something that was “Not work related”.  The difficulty of reconciling the appellant’s evidence with his text messages is increased by the appellant’s evidence in cross-examination that his offer to pay Mr Parker $1,000 was for two nights work, in circumstances in which Mr Parker’s usual wages were $1,000 a week.[44]

   [44]Transcript 26 November 2020 at 4 - 25 to 4 - 26.

5. The appellant said in evidence-in-chief that he did not understand the meaning of the message from Mr Parker to the appellant that Mr Parker could get someone but that person would need at least $2,000 first.  That message is not readily reconcilable with the appellant’s explanation for offering to pay Mr Parker $1,000 for two nights work.

6. The appellant’s explanation for the message, “Its walk in mate walk out no chance of anything” was that Mr Parker would get paid for the work, the appellant was not going to hold any money back for him, and the appellant was going to pay Mr Parker up front to do the work.[45]  The message instead suggests that some risk associated with Mr Parker being at the premises would be obviated by the shortness of time required to perform the task.

   [45]Transcript 25 November 2020 at 3 - 199.

7. Cross-examination of Mr Parker established that he had a criminal record.  On at least two occasions he had driven off without paying for petrol, he had stolen kitesurfing equipment, and he had stolen a wallet containing cash and a driver’s licence, and a mobile phone, from a sex worker.  Mr Parker agreed that he had regular contact with Mr Campbell since 2011, when he had been with him in Mr Campbell’s utility at a park, ignoring a sign notifying that there was curfew at the park at that time.  Mr Parker denied he had been in regular contact with Mr Campbell at the time the fire occurred and said that they had previously had an argument and they moved in different circles.

8. The exchange of messages between the appellant and Mr Parker, especially the appellant’s message to Mr Parker noting that the subject matter was “Not work related”, the appellant’s offer to pay Mr Parker $1,000 for two nights’ work (the nature of which is nowhere mentioned in the messages), Mr Parker’s previous messages refusing to do “it” because it was “too much heat for me”, and the appellant’s message that “Its walk in mate walk out no chance of anything”, supplies strong support for the conclusion that it was open to the jury to reject the appellant’s explanations in evidence for the messages and to accept Mr Parker’s evidence that on 20 September 2017 the appellant asked him if he could burn the building down or help the appellant to do so, payment for that task to be made by cash in advance as recorded in the text messages.

9. Mr Phillip Campbell gave evidence that on 8 September 2017 the appellant asked him if he wanted to do some work.  Mr Campbell’s mate, “Jade”, had informed Mr Campbell that work was available.  Mr Campbell worked moving bumper bars from the building to Wacol for an agreed payment of about $200 or $300 a day.  After a couple of days, three friends of his joined him in doing the same work.  He did not get paid for any of the work.  Mr Campbell said he could not remember having any conversation with the appellant during the course of moving bumpers that stood out and the appellant did not ask him to do anything other than move bumpers.[46]  An application to have Mr Campbell declared to be a hostile witness did not succeed.  When he returned to the witness box in the presence of the jury, Mr Campbell gave evidence that the appellant “asked me a couple of questions”.  The prosecutor asked if there was any conversation with the appellant that he could recall.[47] Mr Campbell said that on one of the nights he was working, the appellant asked if he “knew anyone who wanted to burn the shed”,[48] and Mr Campbell replied, “No I come up here to work, not to go to jail”.

   [46]Transcript 25 November 2020 at 3 - 13 to 3 - 14.

   [47]Transcript 25 November 2020 at 3 - 30.

   [48]Transcript 25 November 2020 at 3 - 30.

10. The appellant relies upon the following passage at the conclusion of the cross-examination of Mr Campbell:

    “Mr Stirling never paid you to burn the building; did he? No. Never heard – never heard boo out of him.

    And this is also the truth. If you were asked to burn that building down and for some money, your only answer would’ve been how much do I get out? I’d say so.

    Yeah. And that’s not what the conversation was; was it? No.

    No, because it just never happened? No, not that I know of.

    All right? It did on the news.

    The building burnt down on the news? Yeah.

    All right. That’s the first you knew about any burning of the building? Yeah, well…

    … or any – any conversation about burning the building? For – yep, at – at the moment. Yep.”[49]

    [49]Transcript 25 November 2020 at 3 - 48.

11. The appellant argues that in that passage Mr Campbell appeared to agree that the conversation Mr Campbell described in evidence-in-chief had not occurred.  The cross-examiner’s first four suggestions did not directly challenge Mr Campbell’s evidence-in-chief that the appellant asked him if he knew anyone who wanted to burn the shed; Mr Campbell did not say in evidence-in-chief that the appellant had paid him to burn the building or asked him to burn the building for money.  The last two question in the passages appear to relate to Mr Campbell’s knowledge after the fire had occurred.  Additional confusion was created by the circumstances that the last question was asked whilst Mr Campbell was in the midst of answering the second last question.  Having regard to the jury’s advantage in seeing and hearing Mr Campbell give evidence, it could not be said to have been unreasonable for the jury to conclude that Mr Campbell did not intend by any of his answers to resile from his evidence-in-chief.

12. Cross-examination revealed that Mr Campbell had previous convictions.  He had pleaded guilty to assaulting a former partner on 1 December 2014 and to stealing and wilful damage on 23 May 2009.  Mr Campbell agreed that police had impressed upon him it was important to say when he asked that he recalled that conversation.  He only recalled the conversation vaguely.  He denied the appellant did not ask him if he knew anyone who could burn down the shed.  Mr Campbell said he knew Mr Parker vaguely and not that well.  He knew him through Jade and had spoken to him a few times.  Mr Campbell had known him for a long time but had never spoken to him or had not spoken to him for the last nine years.

13. He agreed that in March 2011, he was talking to Mr Parker whilst they were sitting in a car in a car park near a road.  They spoke for about 20 minutes.  Mr Parker wanted to see if Mr Campbell could do some painting on weekends.  Mr Campbell had seen Mr Parker probably once or twice through the years.  Mr Campbell agreed police conducting patrols of that park had knocked on the window and asked what they were doing there at 10.20 pm at night.  Mr Campbell wanted to know whether Mr Parker would do some paintwork on Mr Campbell’s cars they were only talking for about 2 minutes before the police arrived.  Police gave him a ticket for parking at a place where there was a curfew.  Mr Campbell agreed they talked about matters other than to do with painting.  That was the last time he had spoken to Mr Parker in the last nine and half years.  Mr Campbell denied that in that conversation they found out that each had a grudge against the appellant (for not having been paid for their work) and agreed to lie about conversations with the appellant.[50]

    [50]Transcript 25 November 2020 at 3 - 39 to 3 - 40.

1. There were differences between answers given by Mr Parker and answers given by Mr Campbell, most notably in their answers in cross-examination concerning the extent and timing of contact between them, and each of them appeared reluctant to give responsive answers to questions about why they were together at a park in March 2011 and the topic of their discussion at that time.  Other aspects of their evidence and their criminal records were also to be taken into account by the jury when assessing their credibility and the reliability of their evidence about the conversations each of them had with the appellant.

2. Even so, bearing in mind the jury’s advantage in seeing and hearing the evidence unfold at the trial, the evidence allowed the jury to find that on 20 September 2017 the appellant asked Mr Parker to set fire or to help the appellant set fire to the building and that, after Mr Parker refused to do so, the appellant asked Mr Campbell if he knew anyone who wanted to burn the building.

   4.   Removal of property from the building

3. Upon searches of the appellant’s residence and the appellant’s father’s property police found bumpers, headlights and equipment.  Mr Spall gave evidence that whilst he was on leave in September 2017 he saw the appellant near a large vehicle being loaded with equipment.  Mr Spall identified from photographs taken during the search of the appellant’s residence numerous items or equipment that had been at ABH’s premises before Mr Spall went on leave.

4. The broad effect of detailed evidence given by the appellant is that he relocated the relevant items either because that was necessary in order to comply with the requirements of Queensland Fire and Emergency Services or the Brisbane City Council or because the equipment at the business premises had become redundant.  The appellant agreed in cross-examination that in a statement the appellant made to police on 24 September 2017, which was reduced to writing and signed by the appellant knowing that if it were admitted as evidence the appellant might be liable to prosecution for stating in it anything he knew to be false,[51] the appellant answered, “No, definitely not.  Yeah” to the question whether he had removed any equipment from inside the premises, such as compressors or ovens.[52]  The appellant’s explanation in his evidence for that answer was that the police officer was asking about equipment that were assets of the business and the compressor (one item that was removed) was personally owned.  The police officer’s question was not limited in that way.  Also bearing in mind the jury’s advantage in forming a view about the appellant’s credibility, it was open to the jury to attribute no weight to the appellant’s explanations for moving the relevant equipment from the site.

   [51]Transcript 26 November 2020 at 4 - 19.

   [52]Transcript 26 November 2020 at 4 - 22.

5. This circumstance could be regarded as supplying some support for the Crown case when it is considered together with the other circumstances upon which the Crown relied.

   5.   Internet searches before the fire of an earlier factory fire

6. The appellant accepted in cross-examination that on 4 February 2017 he searched the internet with the query “plastic fire Zillmere factory”, “fire Geebung”, and “plastic fire Zillmere”.[53]  Those searches were conducted within about two months after a period when ABH had delayed paying wages due to Mr Spall and Mr Lay: see [20] – [21] of these reasons.  The appellant gave evidence he made those searches after he smelled smoke in the air over the business on a weekend.  He also drove out to look for the fire and located it on the far side of Geebung.  In cross-examination the appellant said he chose to go in his car to find the fire because any industrial business would be nervous if there was a fire in the general area, especially on the weekend.[54]

   [53]Transcript 25 November 2020 at 3 - 115 to 3 - 116.

   [54]Transcript 26 November 2020 at 4 - 29.

7. The jury did not have to accept the appellant’s explanations for his internet searches.  In that respect, the jury could take into account its view about the appellant’s credibility formed during the lengthy period in which he gave evidence and was cross-examined and inconsistencies between his evidence and other evidence, including the inconsistencies between the appellant’s evidence of his conversations with Mr Parker and both the content of text messages exchanged between them and Mr Parker’s testimony.

8. The respondent submits that when this evidence is considered in the context of the evidence already discussed, the jury could consider that the appellant’s internet inquiries in February 2017 reflected his having then contemplated setting fire to the building.  In light of the fact the appellant undertook these searches about seven months before the date of the fire and the indication in the searches that there was in fact a fire in one of the nearby suburbs, relatively little weight should be attributed to this aspect of the circumstantial case against the appellant.

   Count 1: Conclusion

9. The appellant argues it is improbable that he would start a fire in the building when he and his wife were in the building and other business premises were in very close proximity.  It is relevant in this respect to record that it was uncontroversial at trial that there was “a massive load of combustible material” inside the building; when that was put to the appellant, he answered, “Of course.”[55]  In addition, the evidence reveals that there was also a large amount of combustible material (racks of bumpers) between the building and adjacent buildings.  In these circumstances, if the appellant set fire to the building he created significant risks of serious injury to himself and his wife, to anyone who happened to be near the building or near or in any of the adjacent buildings when the fire took hold, and also to the firefighters who would be called to the scene.  It could readily be inferred that the appellant knew of those risks, given that he was intimately familiar with the building, its contents, and the closeness of the adjacent buildings, and was in the process of responding to notices issued by the relevant fire authorities to remove great volumes of the combustible material.

   [55]Transcript 26 November 2020 at 4 - 29.

10. For reasons already given, however, the jury could attribute no weight to the appellant’s denials on oath and find that on 20 September 2017 the appellant asked Mr Parker to set fire or to help the appellant set fire to the building and that, after Mr Parker refused to do so, the appellant asked Mr Campbell if he knew anyone who wanted to burn the building.  Upon that footing, any hypothesis consistent with the appellant’s innocence would involve the remarkable coincidence that the building was accidentally destroyed by fire shortly after the rejection of the appellant’s attempts to enlist someone to set fire to the building.  The apparent weakness of any hypothesis consistent with the appellant’s innocence is stretched beyond breaking point when regard is also had to the circumstances that the fire started at or about the time when the appellant was alone in the section of the building where the fire started, the appellant was then under substantial pressure as a result of ABH’s financial inability to pay outstanding wages to its full time staff and other overdue debts, and the appellant then knew ABH held substantial insurance covering the risk of fire at its business premises.

11. The jury could regard the circumstances described under the fourth and fifth headings in the preceding section of these reasons as supplying some additional support for the Crown case.  Even if both circumstances are put aside, however, the combined effect of the first three circumstances allowed the jury safely to find that, notwithstanding the appellant’s denials on oath, the prosecution had proved beyond reasonable doubt that the appellant deliberately started the fire.

12. I conclude that upon the whole of the evidence it was open to jury to find that the prosecution proved beyond reasonable doubt that the appellant was guilty of count 1.

    Counts 2 – 5

13. By s 462 of the Criminal Code, a person who “wilfully and unlawfully sets fire to anything situated so that a thing mentioned in section 461(1)(a) to (d) is likely to catch fire from it commits a crime”. The relevant “anything” in this case is the building at 9 Pritchard Rd. The relevant “thing mentioned in section 461(1)(a) – (d)” is the adjacent building identified in each of counts 2 - 5.

14. The particulars of counts 2 – 5 were identical except for the identification of the adjacent building alleged to have been likely to catch fire from a fire at 9 Pritchard Road:

    “[The appellant] deliberately and unlawfully set a fire within and/or set fire to the premises at 9 Pritchard Road, Virginia which was so situated that the premises at … was likely to catch fire from it, and did so knowing it was likely that it would catch fire and acted in reckless disregard of that risk.”

15. There is again no issue about unlawfulness. In relation to each of counts 2 – 5, the word “wilfully” (like the word “unlawfully”) does not relate only to “sets fire to anything”. It relates to the whole of the text, “anything situated so that a thing mentioned in section 461(1)(a) to (d) is likely to catch fire from it”.[56]  My reasons relating to count 1 explain why I would hold that it was reasonable for the jury to conclude that it was proved beyond reasonable doubt that the appellant deliberately set fire to the building at 9 Pritchard Road.  As the trial judge directed the jury, it was also necessary upon the Crown case for the prosecution to persuade the jury beyond reasonable doubt that the appellant deliberately set fire to the building at 9 Pritchard Road “realising that it was likely … that the building [described in each of counts 2, 3, 4 and 5] would catch fire and he acted in reckless disregard of that risk.”[57]

    [56]R v Webb; Ex parte Attorney-General (Qld) [1990] 2 Qd R 275 at 282 – 283 (Macrossan CJ, Lee J agreeing) and at 286 (Thomas J).

    [57]Transcript 26 November 2020 at 4 - 29.

16. Mr Scott, a senior fire station officer with the Queensland Fire Service, gave evidence that he attended the fire.  As he got closer to Pritchard Road he saw that the flames were probably 20 metres high.  Shortly after arriving at 9 Pritchard Road he assessed the scene and instructed the fire fighters to go into “defensive mode”, meaning that they were to surround ABH’s building (rather than to enter it) with a view to attempting to keep the fire within that building.  The main priority was to attempt to contain the fire within the footprint of that building.

17. Consistently with that evidence, other evidence demonstrates that the four adjacent buildings closely surround on three sides the building at 9 Pritchard Road.  It was formally admitted that each of the adjacent buildings was damaged by fire.  An aerial photograph[58] includes labels identifying the business names of the four premises adjacent to ABH:

    [58]Exhibit 4.

    (a)The “Sonoco” building (count 2) to the west.

    The photograph shows that the Sonoco building is less than the length of a car[59] from the ABH building.  A consultant for Sonoco, Mr Dennison, described Sonoco’s business as “a paper converter” making paper products, cartons, paper tubes and similar things.  He gave evidence that the eastern side of the Sonoco building was “completely scorched and burnt” and there was a fire inside the paper factory from the fire at 9 Pritchard Road.[60]

    [59]Cars of many different kinds are depicted on the aerial photograph.

    [60]Transcript 24 November 2020 at 2 - 57.

    Mr Scott gave evidence that when he saw that “one of the exposures was the large Sonoco cardboard factory” he “knew that if the fire got into that particular building that this would be a very difficult fire to contain, and it could spread through the entire block”.  In consequence, he organised for as many appliances and fire fighters as he could secure to attend to protect that exposure.  Mr Scott went on to describe the way in which fire fighters entered the Sonoco factory and effectively pushed the flames back out through the louvres of that building for about an hour.  The effect of his evidence was that the Sonoco building was saved from destruction by the firefighting.

    (b)The “Pet Friendly” building (count 3) to the east at the northern end of ABH’s premises.

    The photograph shows that part of the pet friendly building is also less than the length of a car apart from the ABH building.

    (c)The “Office Works” building (count 4) to the north.

    The Pet Friendly building shares much of its northern wall with the eastern end of the southern wall of the Office Works building.

    Mr Scott referred to a “great fuel load” at the back of the Office Works building.  That was a reference to ABH stock on racks in an area to the north of the ABH building which butted up against part of the southern wall of the Office Works’ building and the western wall of the Pet Friendly building.

    Mr Lundy also gave evidence that is relevant to the risk of fire spreading to both the Pet Friendly building and the Office Works building.  Mr Lundy referred to the area to the north of ABH containing “hundreds if not thousands of bumper bars”; what was seen on the ground after the fire was “a sea of polymer that in areas was around 300 millimetres thick” and what looked like a pile of gravel or mulch, being “piles of shredded bumper bars” which contributed to that “sea of molten burning polymer until it was through fire fighting efforts, cool enough for it to be extinguished.”[61]

    (d)The “Bolts and Industrial Supplies” building (count 5) to the east at the southern end of ABH’s premises.

    The photograph shows that the Bolts and Industrial Supplies building is also less than the length of a car apart from the ABH building.  The director of Bolts and Industrial Supplies, Mr Rogers, gave evidence that along the inside wall closest to ABH there were perishable products and some general sprays and lubricants, some of those items being “definitely flammable”.

    Mr Lundy gave evidence that there were louvred windows on the ABH building in a wall between it and the Bolts and Industrial Supplies building.[62]  He referred also to bumper bars stored in the laneway on the eastern side of ABH which had degraded in the fire.  Mr Scott referred to the Bolts and Industrial Supplies building as having been (before his initial “size-up”) his first priority to save; he described that building as the fire fighters’ “first exposure”.  In effect, the fire fighters provided a “water curtain” over a long period of time to protect the building against the radiated heat from the ABH building.

    [61]Transcript 23 November 2020 at 1 - 40.

    [62]Transcript 23 November 2020 at 1 - 41.

18. Upon that body of evidence, the jury could readily conclude that it was proved beyond reasonable doubt that the situation of the ABH building was such that a fire designed to destroy that building would be objectively likely to spread to the surrounding buildings.  Of particular significance in this respect is that the likelihood of a substantial fire at the ABH building spreading to Sonoco’s closely adjacent paper factory appears to have been obvious and there was no challenge to Mr Scott’s evidence that “if the fire got into that particular building that this would be a very difficult fire to contain, and it could spread through the entire block”.

19. As to the appellant's state of mind, the jury could take into account his familiarity over a long period with the ABH building, its contents, and the local area, his acknowledgment in evidence that there was “a massive load of combustible material” inside the ABH building, the evidence that he knew that combustible material was stored in areas between the ABH building and the adjacent buildings, and that the appellant was responsible for compliance with notices issued by the relevant fire authority requiring ABH to remove some of that material.

20. Upon the whole of the evidence, the jury could infer that the appellant must have known and recklessly disregarded the likelihood that a fire calculated to substantially damage or destroy the ABH building would be likely to spread to the surrounding buildings.

    Counts 2 – 5: conclusion

21. I conclude that upon the whole of the evidence it was open to the jury to find that the prosecution proved beyond reasonable doubt the appellant’s guilt of counts 2 – 5.

    Proposed Order

22. I would dismiss the appeal.

23. McMURDO JA:  I agree with Fraser JA.

24. APPLEGARTH J:  I agree with the reasons of Fraser JA and with the proposed order.