R v Taylor - [2017] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v TAYLOR
Criminal Trial by Judge Alone
[2017] SASC 167
Judgment of The Honourable Justice Doyle
16 November 2017
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
Trial by Judge alone.
The defendant pleaded not guilty to one count of arson. It was alleged that he intentionally started a fire, using a petrol accelerant, within a vacant and derelict house on a property abutting his residential premises.
The prosecution case relied on the combination of various strands of circumstantial evidence including expert evidence from a crime scene investigator specialising in fire investigation, numerous police officers who attended the scene and a forensic scientist, in addition to three lay eye witnesses and various exhibits including a recording of a police interview with the accused.
The defence challenged the reliability and weight of various aspects of the circumstantial case, contending that the prosecution failed to establish beyond reasonable doubt that the fire was intentionally lit, and if so, that it was the accused who lit the fire.
Held: Accused found guilty of arson.
Criminal Law Consolidation Act 1935 (SA) s 85(1), referred to.
Festa v R (2001) 208 CLR 593; R v Quist (2017) 127 SASR 471 ; R v Gassy (No 3) (2005) 93 SASR 454; Edwards v The Queen (1993) 178 CLR 193; R v Ford [2016] SASC 112; Harris v The Queen (1990) 55 SASR 321, discussed.

R v TAYLOR
[2017] SASC 167
Criminal

DOYLE J: The accused, Jeffrey Adrian Taylor, is charged with arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the charge are that on 15 February 2015 at Penfield, knowing that he had no lawful authority to do so, the accused intentionally or with reckless indifference damaged by fire a house, the property of Ryan John Fretter.
Background and overview
As at 15 February 2015, the accused lived at 241 Stebonheath Road, Penfield (the accused’s property). Stebonheath Road runs in a north/south direction, with the accused’s property on the western side of the road and hence facing east.
Next door to the south of the accused’s property, at 2 Stebonheath Road, was a property owned by Ryan Fretter (the Fretter property). While Mr Fretter was the registered proprietor of that property, he had defaulted on his mortgage resulting in ANZ bank obtaining an order for possession a few weeks earlier. The house on that property had been vacant and derelict for some time. It was a single storey brick veneer house with a tiled roof.
The accused’s property and the Fretter property were separated by a cream colorbond fence that extended for some metres from the front of the houses on those properties. They were surrounded by essentially vacant land[1] on either side, through to the intersection with Womma Road (to the south) and Pioneer Road (to the north). To the rear of the properties was a newly constructed road and then further vacant land. To the front of the properties, on the other side of Stebonheath Road, was a reserve.
[1] The block to the immediate south appears from an aerial photograph in evidence to have a shed or some similar structure on it.
Late in the afternoon of 15 February 2015, the accused was at his property with his partner and their three children. Following an argument with his partner, he went to the rear of his property and did some ‘burnouts’ in his Tarago van.
Not long after this, some time after about 7.00 pm, a fire commenced in the house on the Fretter property. The fire was a significant one. It spread through most of the roof of the house, with flames extending above the roofline.
Within a relatively short period of time, the Police and Metropolitan Fire Service personnel arrived at the Fretter property. A number of onlookers gathered on the opposite side of Stebonheath Road.
One of the police officers approached the accused’s house and instructed him to evacuate, which he and his partner and children then did. Two other police officers took up positions behind the properties on or near the newly constructed road.
Four MFS units attended the fire. Within about 20 to 30 minutes of arriving they had brought the fire under control.
As well as the uniformed police that initially attended, officers from the Elizabeth CIB also attended the scene. After the fire had been extinguished, the police interviewed three witnesses. One claimed to have seen a person walking onto the Fretter property from the accused’s property shortly before the fire commenced and returning shortly after it had commenced; the second claimed to have seen a person walking onto the Fretter property; and the third claimed to have seen a person leaving the Fretter property. Later in the evening the police interviewed the accused, who denied any involvement in the fire. He was arrested that evening.
The charge and prosecution case
The elements of the charge of arson are that:
·    the accused damaged the house on the Fretter property by fire;
·    he did so intentionally or with reckless indifference; and
·    he did so knowing he had no lawful authority to do so.
Each element must of course be established by the prosecution beyond reasonable doubt.
There is no evidence or basis to suggest that the accused had, or thought he had, any authority to set fire to the house on the Fretter property. The dispute in the present case revolves around the first two elements, and in particular whether the prosecution has established beyond reasonable doubt that the fire was intentionally lit, and, if so, that it was the accused who lit the fire.
The prosecution had initially charged the offence as a major indictable offence on the basis that the fire caused more than $30,000 damage. The accused was committed for trial on this basis. The accused not having elected for a trial by judge alone, the matter was to proceed by way of jury trial.
In the lead up to the scheduled commencement of the trial, the prosecution acknowledged it was not in a position to prove that the fire caused $30,000 damage, and on the day the trial was scheduled to commence, laid a fresh Information in which it alleged damage of unspecified value. As this rendered the alleged offence a minor indictable offence, the accused sought an order remitting the matter to the Magistrates Court or granting a stay of the Information. I declined to make either order, on the basis that I did not have the power to do the former and did not consider that the circumstances warranted me exercising my discretion to do the latter.
In contending that I ought to grant a stay, the accused relied in part upon the prejudice associated with his ability to proceed by way of a more efficient trial without a jury if the matter proceeded as a minor indictable matter in the Magistrates Court. In order to address this asserted prejudice, I indicated a preparedness to dispense with the usual time prescribed for electing to proceed by way of a trial by judge alone. After I had dismissed the accused’s applications to remit or stay the matter, the accused then made an application that he be permitted to elect to proceed by way of trial by judge alone. Given the circumstances I have outlined, I made an order that the trial proceed in that way.
The trial commenced the following day and proceeded over the course of four days. The prosecution called evidence from:
·    a crime scene investigator (Officer Pickburn) as to the circumstances of the fire;
·    various of the uniformed police officers who attended the scene of the fire (Officers Doyle, Thomas, Sykes and Sargent);
·    the Elizabeth CIB officers who attended (Officers Putsey, Binyon and An);
·    a crime scene investigator who took some photographs of a jerry can located in the shed at the rear of the accused’s property (Officer Flitton);
·    the station officer of the MFS unit that first responded to the incident, and acted as incident controller (Commander Fraser);
·    a forensic scientist (Ms Hayley Brown); and
·    three lay witnesses who variously claimed to have observed a person entering and leaving the Fretter property around the time of the fire (Ms Patricia Pobke, her husband Mr Steven Pobke and their now daughter-in-law Ms Melanie Pobke).
The prosecution also relied on a number of exhibits, including some photographs and an audio-visual recording of the police interview of the accused.
The defence called some brief evidence from the accused’s mother, Ms Lynn Taylor. Counsel for the accused also tendered some documentary evidence.
The prosecution case is a circumstantial one.
In support of its contention that the fire was deliberately lit, the prosecution relies upon the expert opinion evidence of Officer Pickburn as to the cause of the fire, and in particular his evidence to the effect that the fire started in the dining room of the house on the Fretter property, as a result of human involvement and with the use of an accelerant. The defence case on this issue is that the evidence of Officer Pickburn does not establish beyond reasonable doubt that the fire was intentionally lit; that it does not exclude as a reasonable possibility that it commenced as a result of some electrical fault or other accidental cause.
In support of its contention that it was the accused who deliberately lit the fire, the prosecution relies upon various strands of circumstantial evidence, including:
·    the evidence of the lay witnesses to the effect that a person with a similar appearance and clothing to the accused was seen both entering the Fretter property from the front yard of the accused’s property shortly before the fire was first observed, and then leaving the Fretter property and returning to the accused’s property shortly after the fire was first observed;
·    the evidence of the lay witnesses to the effect that the person seen entering and leaving the Fretter property was carrying an object;
·    the location of a jerry can with traces of petrol in the shed at the rear of the accused’s property;
·    the evidence of Ms Brown that the accused’s singlet top and shorts tested positive for the presence of petrol;
·    the accused had a motive to light the fire, namely his irritation over the derelict nature of the house on the Fretter property, and the nature of the people and activities it was attracting; and
·    two alleged lies told by the accused, which the prosecution contend reflected a consciousness of guilt – namely that he had not used the jerry can for weeks and that it was now covered in dust (when the evidence was to the effect that it was found by the police to be out of alignment with the dust markings), and that he had not been onto the Fretter property for some days (when the evidence of the lay witnesses suggested that he had been seen there that day).
The defence case on the issue of the identity of the arsonist is that the prosecution case, and in particular the cumulative effect of the circumstantial strands relied upon, falls short of establishing beyond reasonable doubt that it was the accused who lit the fire. The defence case challenges the reliability and weight of the above strands of evidence. It contends that the circumstantial evidence relied upon by the prosecution is not sufficient to establish that the accused lit the fire; and that it leaves open as a reasonable possibility that some other person lit the fire. In this respect, the defence also points to the evidence that it contends supports a possibility that Mr Fretter lit the fire.
Preliminary matters
Presumption of innocence
The defendant is entitled to the presumption of innocence. He can only be found guilty if I am satisfied that the prosecution has proved beyond reasonable doubt each of the elements of the relevant offence. The defendant does not have to prove anything. He is not required to put forward a positive defence, to give an explanation or to prove his defence.
The accused elected not to give evidence. He was not required to give evidence. He had the right to decline to do so. I do not draw any adverse inference about him, or the case he put forward, as a result of the exercise of that right. There may have been many reasons why he did not give evidence and I do not speculate about them.
Circumstantial evidence
The prosecution case against the defendant is circumstantial. In approaching a circumstantial case, I must first consider the evidence upon which the prosecution relies as circumstantial evidence, and decide which facts I accept as established by the evidence. I must then consider what inferences I am prepared to draw from those facts. In so doing, I must consider the totality of the evidence and circumstances, and the combined force of all of the evidence and circumstances put together, regardless of the direction in which each individual circumstance may point.
The accused is not to be found guilty unless there is no reasonable explanation for all the accepted evidence other than that the particular accused is guilty of the offence in question. To put that another way, if there remains any reasonable hypothesis consistent with the innocence of the accused, then he must be acquitted.
Assessment of witnesses
I have considered the credibility and reliability of each of the witnesses called to give evidence. I have done so based upon a consideration of their evidence in the context of the case as a whole, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.
As it happens, I am in this case satisfied that no credibility issue arose in relation to the witnesses called to give evidence. I consider that each gave honest evidence.
I found both of the expert witnesses (Officer Pickburn and Ms Brown) to be impressive and reliable witnesses. I have addressed later in my reasons the findings that I have made in light of their evidence.
I also consider that each of the police witnesses and the MFS witness gave generally reliable evidence. I have identified the aspects of that evidence upon which I have relied later in these reasons.
That leaves the evidence of the lay witnesses: the three members of the Pobke family called by the prosecution, and the accused’s mother called in the defence case. Counsel for the accused challenged the reliability of significant aspects of the Pobkes’ evidence. I have considered these challenges, and the findings I have made based upon the evidence from these lay witnesses, later in my reasons.
While the accused did not give evidence, portions of the recording of his police interview is in evidence. I have summarised the relevant aspects of that interview later in these reasons. I have also set out the use I have made of that evidence. In so doing I have addressed the prosecution submission to the effect not only that critical aspects of the accused’s version should be rejected, but also that I should find that the accused told two lies reflecting a consciousness of guilt.
There was evidence that the accused had been drinking alcohol in the hours leading up to his police interview. As mentioned later, I have taken this into account in considering the answers he gave in that interview. I have also taken into account the effect that his consumption of alcohol might have had on his perceptions, beliefs, intentions and memory more generally during the afternoon and evening of 15 February 2015. There was no suggestion, however, that his level of intoxication was particularly significant, let alone that it provided a basis for suggesting that he did not intend his actions or their consequences that day.
Cause and circumstances of the fire
I commence by considering the evidence, and the findings I consider it appropriate to make, in relation to the cause and circumstances of the fire.
Evidence of Officer Pickburn
Officer Pickburn is a crime scene investigator employed by the SA Police. His training and experience extend to the investigation of structural fires. I accept he is qualified to express the opinions he expressed in this matter.
Officer Pickburn attended and examined the scene of the fire at around 9.00 pm on 15 February 2015. He took a number of photographs that evening, and then returned to take more photographs on 24 March 2015.
He described the premises as derelict, with obvious signs of vandalism and graffiti, and the yard as strewn with rubbish. It was obvious to him that the premises had not been occupied for some time. The house itself was a brick veneer house; that is, a timber framed house with external bricks.
Officer Pickburn commenced with an examination of the doors and windows. The front door had been forced off its hinges and was inside the house on top of the debris in the house. The back laundry door was missing. A number of windows had sustained impact damage. While he understood from information he had received from the MFS that some of the windows (particularly those at the front, and on the eastern side), and the front door, had been forced during the firefighting process, he believed that the other damage had occurred prior to the fire. His opinion was that the house was insecure prior to the fire, with broken windows and a missing back laundry door.
Officer Pickburn explained that his external examination revealed that the part of the house most damaged by fire was the roof. The majority of the roof had collapsed, with only a small section of the roof remaining above one of the bedrooms on the northern side of the house. The exterior of the northern, eastern and southern sides of the house was undamaged. The meter box was undamaged, as was the air conditioning unit. The debris and rubbish throughout the rear yard did not appear related to the fire. He found nothing in the nature of fuel containers or accelerants.
Officer Pickburn then undertook an internal examination of the house. In most of the rooms the damage was confined, or largely confined, to the roof area, leading him to conclude that the fire had travelled to those rooms through the roof. He excluded those rooms as the origin of the fire.
There was significant damage in the kitchen area, but not to the extent that led him to believe it was the source of the fire.
In Officer Pickburn’s opinion, the origin of the fire was in the adjacent dining room. He explained that the plaster on the northern wall in this room had collapsed and come away from the wall. This was a phenomenon known as spalling, and indicated that the area had reached a significant temperature, and indeed a greater temperature than had been reached in other areas of the house. He also observed that the extent of the damage to the roof was greater in this area of the house than elsewhere. The timber beams had been consumed or collapsed, whereas in the other areas of the house this was only partially so. The tiling on the floor was also damaged.
Officer Pickburn explained that the greater damage, and hence greater temperature, in the dining room than any other room in the house led him to form the opinion that the fire had originated in that room. He relied upon the general phenomenon that examination of a fire scene will reveal higher temperatures at the point of origin than the areas to where the fire has subsequently spread. Essentially this is because a fire generally burns longer and stronger, and hence causes greater damage, in its area of origin.
In the circumstances of this case, the nature and extent of the damage to the walls, roof and floor in the dining room, led Officer Pickburn to conclude that the origin of the fire was in that room.

Officer Pickburn accepted that this observation depended upon the course of the fire being interrupted, for example, by the MFS. During cross-examination he also accepted that the intensity of the fire may also depend upon the fuel load. An area of particular heat and damage might sometimes be a product of a greater fuel load in the area in question rather than an indicator that it was the point of origin.
Officer Pickburn gave some evidence about an area of the floor in the dining room near the damaged tiling. He observed what he described as a pour pattern; an irregular shaped pattern that was sometimes seen when a flammable liquid, such as an accelerant, was poured or spilt on a particular surface. He explained that if the liquid ignited, it may leave a scorch mark on the surface. The presence of these marks on the tiles in the dining room led Officer Pickburn to form the opinion that an accelerant had been poured onto that area and ignited. While there were no traces of any accelerant itself found in this location, he said that even when an accelerant has been used to promote fire, he did not always expect to find traces of it upon examination of the fire scene after the fire had been extinguished. It would depend upon the nature of the surface. Where, as here, the surface was non-porous, the liquid would not have penetrated the surface and would have been consumed by the fire.
There were no power points or electrical items near this area. This led Officer Pickburn to be satisfied that there were no electrical issues that led to the fire.
In summary, Officer Pickburn’s opinion was that the fire started in the centre of the dining room; that there was no accidental ignition source; and that some form of human involvement was required for the fire to have commenced.
In cross-examination, Officer Pickburn acknowledged a number of fairly obvious propositions. He accepted that there are many ways a house fire might start; it might start from a fallen cigarette or candle; it might start from a faulty electrical appliance, such as an electrical stove. Further, he agreed that a fire might, depending on where it started, move fairly rapidly to the roof. It might then be drawn in certain directions by the plaster or other wall coverings acting as something of a conduit.
So far as the tile damage and apparently localised intensity of the fire in the dining room were concerned, Officer Pickburn acknowledged that it was possible that these might have resulted from the roof collapsing in that location, and causing damage to the floor tiles and creating a significant fuel load in that area. He also accepted that it was possible that some of the damage he observed in that area was the product of some earlier event. So far as the pour mark was concerned, he agreed that it was not accompanied by any pour pattern in the nature of a trail away from that point.[2]
[2] He agreed that the types of accelerant that might leave the type of pour pattern that he did observe was not confined to petrol, but might include a range of other substances such as paint thinner, insecticides, cleaning solvents, and various types of fuels and industrial solvents.
However, despite acknowledging these possibilities, there was no suggestion in the evidence of Officer Pickburn under cross-examination that they were matters he had overlooked, or that in any way undermined his belief in the opinion he expressed as to the origin and cause of the fire in this case.
Officer Pickburn acknowledged that he had been told, and assumed when carrying out his investigation, that electricity to the house had been disconnected from the mains power at the time of the fire, and that a person had been seen entering and leaving the property shortly before and after the fire and holding an object or container of some description.
I am satisfied, on the basis of evidence received from SA Power Networks that mains power to the house was connected at the time of the fire. It is not clear, however, whether the power had been turned off at the meter box. Commander Fraser’s evidence was that the MFS checked to ensure it was off once they had arrived, but he was not able to say whether it was already off.
As to the presence of a person on the Fretter property at about the time the fire started, and their possession of some form of container, for the reasons explained later, I am satisfied that this was an accurate assumption.
But even if, and to the extent that, Officer Pickburn’s information or assumptions as to these matters were not accurate (for example, if the power had not been turned off at the meter box at the time the fire started), I do not consider that this significantly undermines the opinions he expressed. As Officer Pickburn said, and as was apparent from the reasons he gave for his opinions, he did receive the information mentioned, but he also formed his opinions on the basis of the observations he made.
Consideration
I accept Officer Pickburn’s evidence as to the origin and cause of the fire. I was impressed by the clear and matter of fact, but fair, manner in which he gave evidence. He acknowledged the limitations upon his observations and the range of alternative possibilities, but was ultimately unswayed from his opinion that the fire started in the centre of the dining room as a result of human involvement and the use of accelerant. More importantly, he supported his opinion to this effect with logical and persuasive reasoning, based upon observations that he made at the scene of the fire.
Based on Officer Pickburn’s evidence I am satisfied beyond reasonable doubt that the fire commenced in the dining room as a result of the use of an accelerant and human involvement. I am satisfied that the prosecution has excluded any other reasonable possibility. In the face of Officer Pickburn’s observations and opinions I do not consider it to be reasonably possible that the fire started as a result of some electrical fault, or some other accidental cause. I am of this view despite the damaged and derelict nature of the house (including with some power points removed and wiring exposed), and the increased risk of electrical fire that this may have created.
I do not consider that the fact that mains power was not disconnected until after the fire commenced stands in the way of this conclusion. Even if the power to the house was still on at the meter box, there was nothing in the observations made at the scene of the fire that suggested that a fire as a result of an electrical fault was a reasonable possibility. Similarly, there was nothing to suggest any other accidental cause. In those circumstances, the positive indications of the fire having started in the circumstances described by Officer Pickburn are sufficient to satisfy me beyond reasonable doubt that that is what occurred.
Further, I am reinforced in this conclusion by the evidence of the lay witnesses as to their observations of a person entering and leaving the Fretter property, and doing so while holding an object of some description, shortly before and after the fire was first observed. While the reliability of some of the detail they observed is a matter considered later, it is sufficient for the present purposes to note that I find on the basis of their evidence that a person did enter and leave the Fretter property shortly before and after the fire was observed, and did so holding an object of some description. As mentioned, I consider that this finding reinforces my conclusion beyond reasonable doubt that the fire started as a result of human involvement and the use of an accelerant. I am also satisfied beyond reasonable doubt that this human involvement involved conduct that was intended to damage the house on the Fretter property by fire.
Identity of the arsonist
Having established that the fire was intentionally lit, it remains for the prosecution to establish beyond reasonable doubt that it was the accused who lit the fire. In this respect, the prosecution relies upon the various strands of circumstantial evidence that I have earlier summarised. It is appropriate that I address each of these strands and make the findings of fact that I consider appropriate, before then turning to consider the overall effect of that evidence, in the context of the case as a whole, and in particular to consider whether the prosecution has established beyond reasonable doubt that it was the accused who intentionally lit the fire. I commence with a summary of the evidence.
Summary of the evidence relevant to identify the arsonist
The Pobkes
In the evening of 15 February 2015, Patricia Pobke and her husband Steven Pobke were at their home in Penfield. They lived in a house fronting onto Tonkin Terrace. The rear of their property faced to the south. Immediately behind their property, and hence to the south, was some vacant land. Continuing further south there was a road (Pioneer Way), some further vacant land and then the northern side of the accused’s east facing property. The vacant land between the two properties was part of a subdivision that was in the process of being developed. The distance from the accused’s property to the rear of the Pobke’s property is a matter I address below.
Also present at the Pobke’s property that afternoon were the Pobke’s son, Jonathon Pobke and his then fiancée, now wife, Melanie Pobke. At the time their relevant observations commenced, Patricia Pobke was in the kitchen and Steven Pobke was gardening in the front yard. Jonathon and Melanie Pobke were in a bedroom watching a movie.
Patricia Pobke
Patricia Pobke said she became aware of a burnt rubber smell wafting through the house. Her immediate reaction was to try and find out where the smell was coming from. To that end she initially went out the front of their house to speak to her husband. He queried with her whether she had heard the revving and squealing of tyres, which she had not. Patricia Pobke then came back through the house to the rear of the backyard, closing the windows and sliding doors as she went. The back yard was enclosed by a fence which she said was 1800 mm in height, or a bit taller than a normal fence. She stood on a chair to look over the fence, and saw some whitish blue smoke coming from a property down towards Stebonheath and Womma Roads. She could still smell burnt rubber.
When asked to indicate the location of the smoke on a map, she indicated an area immediately adjacent to the accused’s property. When asked the distance to this location from her rear fence, Patricia Pobke said “it’s just an estimate but it would be over 100 metres I would say.” She later said the distance was 100 to 120 metres. She said her view was unobstructed.
Patricia Pobke said her son and his fiancée had joined her in the backyard by this stage, but that her husband was still in the front yard. She said she continued to watch for “a minute more or less”, until the smoke cleared. She said that as the smoke dissipated she saw a male person on the property that she was watching (which, from the map by reference to which she gave evidence, I am satisfied was the accused’s property). She saw the man walk across the front yard, in a diagonal direction from the house and her vantage point, and hence towards Stebonheath Road and Womma Road. She saw him leave the front yard and walk around the fence that separated the accused’s property from the neighbouring property (which she described as the derelict house next door, and which I am satisfied from the map was the Fretter property). He had his back to her as he walked away from her.
Patricia Pobke was asked to describe the man’s appearance. She said he was caucasian with a medium build. As to his height, she said it was “only a guess” but that she would say that he was maybe 167 or 168 cm tall. She could not recall whether he had hair or anything else on his head. She described him as wearing a dark singlet, with about knee length light khaki shorts, and with what looked like work socks and work boots. She said that as he walked across the yard and away from her, he had one arm bent and appeared to be carrying something in one of his hands. But she could not describe what he was carrying. She maintained watch of him until she saw him disappear around the other side of the fence between the properties.
Patricia Pobke said that she then rang the police. She explained that she had earlier that week been into the police station to find out what the situation was with the derelict house because it seemed to be “getting more and more vandalised”. The police told her to ring if she saw anybody who should not be on the property, and so that is what she did.
At around the same time she also asked her son and his fiancée to hop on their bikes and ride into the back street behind the properties to see if they could see what was going on with the man who had gone into the Fretter property. She later said that she may have asked them to go and find out the address of the man whom she believed had done the burnouts so that she could give it to the police.
She went around to the front yard and told her husband that she had rung the police. While in the front yard she heard a couple of explosions. The first was just a loud thud; the second was a very big explosion. She did not think that they were very far apart in time; the first one was “maybe five minutes or less” after she had been in the backyard.
Having heard the explosions, she returned to the back yard and her vantage point on the chair. She saw a man come back around the fence into the property near where she had seen the smoke (i.e. the accused’s property). She said it was the same person. She saw him walk back across the front lawn and then disappear. She ducked down in case he looked over. She said the man again appeared to be carrying something in one of his hands. She estimated that this was about seven to 10 minutes after she first saw him.
As she maintained her position at the rear fence of her own backyard, Patricia Pobke noticed that the derelict house (the house on the Fretter property) was on fire. It was on fire as the man returned from the Fretter property to the accused’s property. Indeed, she had seen that the roof was on fire as she was returning to her position at the back fence after speaking to her husband in the front yard. She observed flames coming from the roof and smoke. The smoke was darker than the smoke she had seen earlier.
Once the man had returned to the property from where he had come, she saw that a crowd of people were gathering in the street. She remained standing on a seat looking over her fence, but at some point rang the police to let them know the derelict house was on fire. She remained standing on the chair for a few minutes. She saw police and a fire truck arriving, and then saw her son and his fiancée on the street behind the accused’s property talking with a policeman. She left the chair and made her way to her son and his fiancée.
During cross-examination Patricia Pobke accepted that when she smelt the first lot of smoke, and had been out to speak to her husband, she immediately formed a view as to who was responsible. She thought it was the man from down the road who had previously been responsible for doing burnouts, although she said she “couldn’t say that for sure.” The previous burnouts had created a bad smell, and indeed a dust storm that had showered the back of the Pobke’s home. She agreed that she was frustrated and angry, and that she referred to the man she thought was responsible as “that idiot” as she walked back through the house. That said, in cross-examination she did not agree that she was “ropeable” at this time. She described the man’s behaviour in doing burnouts as quite funny in the sense of it being a ridiculous or absurd thing to do.
Patricia Pobke agreed that she usually wore glasses to see distances, but could not recall whether she was wearing them on this occasion. She agreed that she, her husband and her son’s fiancée had subsequently discussed the events of that day, and had probably seen parts of each other’s witness statements.
Patricia Pobke acknowledged that when she was walking to meet her son and his fiancée behind the accused’s property, she again saw the man she had earlier seen. She passed within “maybe 10 metres” of him. She denied, however, that the description she gave of the clothing of the man she saw earlier was based on what she saw at that subsequent time. She said that at that subsequent point in time she did not pay much attention to the man; that her “mission” was to get to her son and his fiancée. She maintained that she had described his clothing from the time when she saw him walk across the front lawn.
Melanie Pobke
Melanie Pobke’s evidence was that in the evening of 15 February 2015 she was watching a movie with her then boyfriend (now husband) Jonathon Pobke at his parents’ home, when she smelt burnt rubber. She heard Patricia Pobke say “that idiot”, which she understood to be a reference to a man who had previously done burnouts nearby, and who lived in the accused’s property.
They went into the backyard, and she stood on a chair to look over the rear fence. At that stage all she could see was some light smoke or haze, which she later depicted on a map as coming from near the rear yard of the accused’s property.
She said they while standing on the chair she saw a man exit the property (the accused’s property) and walk around the cream fence that divided that property and the neighbouring property (the Fretter property). She described him as walking diagonally across the first property, and towards the second property, but passing around the fence between them.
Melanie Pobke said she had a full view of the man, and that he was about 250 metres away, perhaps 300 metres. She said he was of a slim to medium build and was tall. He was wearing a black singlet top and knee length cargo pants. She initially said he was wearing black lace up boots, but then retracted this under cross-examination, confining her evidence to him wearing black boots. She said he was carrying “a red object” in his left hand.
Melanie Pobke said that Patricia Pobke then asked her and Jonathon Pobke to get on their bikes, apparently because the police wanted to know the number of the house from which the smell and haze was emanating. They rode away from Stebonheath Road before turning south and approaching the rear of the accused’s property and the Fretter property. They approached through a park and then the area of the development and newly constructed road to the rear of those properties. They ended up at a position about 20 metres, perhaps 30 metres, from the rear fences of the two properties, and about in line with the boundary between them. She was on the opposite side of the roadway at the rear of these properties. It had taken them about a minute or a minute and a half to get to this position. By this time she saw that there was fire and smoke coming from the house on the Fretter property. They stood and watched thick black smoke. She could see flames coming from the centre of the house and extending beyond the roof line.
Melanie Pobke said that she then observed a man standing with a lady and child in the back yard of the property next to the burning one. She suspected it was the same man she had seen earlier walking around the fence between the properties. There was a fence that partially obstructed her view. She explained:
I could only see him from the shoulder up as the road behind the premises sits a bit higher than – it gives quite a view into the property.
In cross-examination Melanie Pobke said she thought the fence to the rear of the accused’s property was “maybe a little bit lower” than 1.8 metres, but agreed it was possible it was 1.8 metres, adding that the road was higher, or much higher. She said she is about 165 cm in height.

She described the man as being in his late twenties and having hair that was short, and brown or dark in colour. He was caucasian, but she wasn’t able to recall if he had facial hair. As mentioned, he was with a woman, who was in turn holding a young child over her shoulder.
The man was holding in his right hand “a small object … I believe it was red.” She could not describe its shape.
When cross-examined about her ability to see an object in the man’s hand given the fence that to some extent obstructed her view, Melanie Pobke answered by asking rhetorically “can you not lift up a hand to his face?” As she gave this answer, Melanie Pobke lifted a cup of water to her mouth. There was then the following exchange:
Q     Did you intend to use that gesture as answering the question.
A     Yes.
HIS HONOUR
QAs you were being asked that question you were, in fact, taking a drink yourself, were you intending to indicate that you saw the person in the rear of that yard taking a drink, or were you intending to indicate something different to that.
A     That he was holding a can.
Q     You are holding your left hand at about shoulder height.
A     Yes, correct.
XXN
Q     And you are holding your hand in a fashion that you would to hold a can, correct
A     I'm holding something - yes, correct.
QYou have alleged that he was holding something that looked like a can or a bottle, is that correct.
A     Yes.
QAnd you recognised that bottle or can that he held in his hand, as you held your cup, as being red in colour.
A     Correct.
QYou just described to us that he might have actually raised that towards the area of his mouth, is that what you are describing, I want to be clear on this.
A     He may have, yes.
Melanie Pobke said that the police arrived when she and Jonathon Pobke were in this position behind the properties. They spoke to one of the police officers who approached them.
Steven Pobke
Steven Pobke was in his front garden when he smelt tyre smoke. He looked towards Stebonheath Road and saw a cloud of smoke being blown down that road. He continued gardening for a few moments before his wife came out complaining about the smoke. He then heard an explosion, which resulted in them going to their backyard.
Having stood on a chair and looked from the rear of their property, he saw flames coming from the house on the Fretter property. He then saw a man come around the front of the Fretter property and onto the front lawn of the neighbouring property (i.e. the accused’s property).
He said the man was around 150 metres away. He described the man as about five and a half feet tall, with white skin and a slim or slight build. He had short hair, “dark to black” in colour. He also had “just a bit of a scruffy three–day [growth]”. He was wearing a black singlet and shorts that came down to just below his knees. He could not recall what the man had on his feet.
Steven Pobke said that it “looked like the man was carrying something in his left hand … it was small, approximately like a stubbie holder, a can of coke or a beer, something of that dimension, just in his hand”. As to its colour, he said “it was dark, I couldn’t see – it didn’t have a specific colour.”
He said that three or four cars pulled up, and people had stopped across from the front of the houses. He remained in his back yard watching the fire for maybe 15 minutes.
In cross-examination, Steven Pobke agreed that when he smelt the smoke that day he immediately concluded that the person responsible was the man who lived in the accused’s property, and who had previously done burnouts. He agreed he was irritated by this man’s conduct.
He also agreed that he had discussed the day’s events with his family since they occurred.
Photographic identification procedures
In late May 2015, Patricia Pobke attended the Elizabeth police station and participated in a photographic identification procedure. She was not able to identify the man she saw in any of the photographs shown to her. Steven Pobke did likewise, and was also not able to identify the man he saw in any of the photographs shown to him.
The accused’s record of interview
The accused was interviewed by Officer An, commencing at about 9.00 pm on the evening of the fire. The prosecution tendered the audio visual recording of the interview. A transcript of the interview was made available, but it is the audio visual record of the interview that was received into evidence.
The accused can be seen wearing a black singlet with a white logo, and long shorts khaki in colour. He was, and is, of a slim build and of caucasian appearance, with short dark hair. He had short facial hair.
He was holding a drink at the commencement of the interview. It appeared to be an alcoholic drink.
The accused identified himself, gave his address and was cautioned. He said he had “had a few of these”, holding up the drink in his hand, and asked that his mother be present. His mother was contacted and, after a delay while she made her way to the accused’s property, the interview resumed with her present.
The accused made a few references during the course of the interview that followed to having been drinking, and to this affecting him. However, he did not appear significantly affected by alcohol. While at times appearing frustrated and annoyed, he was generally composed during the interview. He spoke in a clear and coherent manner that was responsive to the questions asked. In assessing the accused’s responses in his interview, I have taken into account the likelihood that he was to some extent, although apparently not significantly, affected by alcohol.
When asked what had occurred earlier in the day, the accused said that at some point before sunset he had had an argument with his partner (Stacey) and so had taken his van out the back and “revved the hell out of it”, and “did some burnouts”.
The accused was asked what he could say about the fire next door. He answered that “it’s been waiting to happen, I guess”. He went on to explain that there was a lot of smoke, and so he had told the kids and his partner to get out, and next thing they knew the police and fire brigade were knocking on the door telling them to get out. He later said that the smoke developed really quickly; that they had their doors and windows open; and that he had telephoned triple zero straight away. He said he had used his phone to do so.[3] He explained that having noticed the smoke he had gone out the back, seen that the neighbouring house was engulfed in flames and rung triple zero. The flames were coming from the centre of the house.
[3] It was an agreed fact that the accused made a call to the MFS, using his partner’s phone.
When asked to explain his reference to it having been “waiting to happen”, the accused explained:
I’ve been in that house. There’s holes in the roof; there’s rubbish spread from here to there … there’s bongs; there’s junky needles; there’s membranes for growing crops.
He later added that he had taken footage on his phone showing that the air conditioner was ready to be harvested, and that the hot water system was hanging through the roof. He said there were blankets over the back windows. He said the house was not normally secured; there was no front door; the roller door was up; and the shed was open. He said it was “something Today Tonight should see”.
The accused’s mother made reference to the situation having been reported to the Council; that the Council had looked at it but said there was nothing they could do; and that the property had been recently repossessed by the bank. The accused said this had occurred on 5 February 2015.
There was then the following exchange about the accused’s presence in the neighbouring house:
Q     Jeffrey, you’ve said that you’ve been there, been in the house before, is that right?
A     Recently, yes.
Q     Yep, tell me when that was?
AI went for a look through day before last. We heard some banging and crashing going on in the middle of the night.
…
QOk. So you’re telling me you’ve been there the last couple of weeks, last couple of days?
ALast couple of days, yes.
QOk. Were you at any point there today?
ANo.
The accused was later asked whether he was saying he had not been into that property since two days ago and he said “two days ago, that’s correct”. He repeated this later in the interview.
The accused said that since the house had been repossessed it was no longer Ryan Fretter’s house and so it would be trespass to go over there. His only relationship with Mr Fretter had been as neighbours; and he had not spoken to him since a letter (which he said turned out to be a repossession notice) had been taped to the front door of the house a fortnight prior to it being repossessed.
In terms of his movements earlier in the day, the accused made reference to his mother coming over to play with the kids. He also said they had been playing with the kids in the pool. His mother had stayed until about 5.00 pm. He had then put the sprinkler on the back lawn.
Then, all of a sudden, they were engulfed in smoke. Next door was ablaze and he rang triple zero. He stood out the back watching the flames getting bigger and bigger. His partner Stacey then told him that somebody was knocking at the door, and it turned out to be the police, saying they needed to get out. So they had grabbed the three kids and headed over to the vacant block next door.
He denied mowing the lawn that day. When asked whether he had a jerry can on the premises, he said that he did. He said he had a five litre one that was about half full with two stroke fuel (which he used for the mower and whipper snipper), and a 10 litre one that was empty. They were both red plastic jerry cans. He added that he also had a 20 litre metal one that was army green in colour and was empty. He said he had not been in possession of those containers that day.
The accused was informed that he had been seen on the Fretter property around the time of the fire, with the interviewing officer (incorrectly[4]) adding that he had been observed in the rear yard of that property. The accused queried how he could have been observed in that yard given the raised fencing, but also added:
I haven’t even come out the front, I was gonna put my sprinkler on out the front, I haven’t even come out the front. But I don’t know how I was observed.
[4] It was an agreed fact that on several occasions the questioning of, and propositions put by, the interviewing officer did not accurately reflect, or went beyond, the information provided by the witnesses to whom the police had spoken (i.e. the Pobkes). This is an illustration of that in that all the witnesses said was that the man appeared to have something, or a container, in his hand. See earlier summary of the Pobkes’ evidence.
The accused was also (again incorrectly) told that he had been seen in possession of what appeared to be a red jerry can (later referred to as a “small red can”) in the neighbouring backyard. The accused responded:
Somebody’s trying to stitch me up. You can check my red jerry cans, I’ve not touched them today.
The accused was then informed that the information the police had came from three witnesses. The accused maintained that he had not touched his jerry cans that day.
After some further discussion about the observations purportedly made of him, the accused said that he would not answer any more questions. He was then arrested for arson, informed of his rights and cautioned.
The accused was soon after this informed that the police intended to search his premises pursuant to a general search warrant. The accused said that he wished to be present, but did not offer any opposition. Indeed, he offered to, and did in due course, show the officers to the rear shed where they could find the red jerry cans.
Despite saying he did not want to answer any more questions, and despite being appropriately cautioned about doing so, the accused continued to engage in some intermittent conversation while the audio visual recording continued. The discussion included repetition of the police information that the accused had been seen on the Fretter property with a small red can or jerry can,[5] and repetition by the accused of his denials that he had touched his jerry can that day, and references to his belief that someone was “stitching [him] up”. At one stage his mother queried whether the relevant jerry can was dusty. The accused answered:
Probably. Can’t remember the last time I used it. It would be a good three weeks ago at least so there should be some good dust on it.
[5] This reference to a jerry can, as opposed to simply a small red can or container, is another illustration of the questioning of the accused not reflecting, or going beyond, the information provided by witnesses to whom the police had spoken.
When his mother further queried or suggested the presence of cobwebs on the jerry cans, he added:
I don’t or maybe, don’t know, haven’t looked that closely at them. It’s not something you scrutinise every day. Yeah it would have been a good three weeks ago that I would have snipped out the front around the hedges and shed.
The audio visual recording shows the accused taking the police officers to the shed and indicating the location of the jerry cans to them. The accused is then seen waiting while the jerry can of interest was inspected, photographed and its contents sampled. While the police were attending to the jerry can in the shed, the accused made further reference to him not having touched or moved it in three weeks; and that there should be a dust ring around it.
At one point, while the accused was waiting near the shed, he was shown sitting on a surface (the steps of a cubby house), and apparently annoyed because he had sat on or in something that made the seat of his pants wet. He referred to getting a “wet arse”, and could be seen wiping the seat of his pants as though attempting to pat himself dry.
I will refer later to the prosecution evidence about the jerry can and its contents, and some of the other contents of the shed.
The police witnesses
The first police on the scene were Officers Thomas and Doyle. They were on uniformed patrol in the vicinity and saw smoke coming from a property on Stebonheath Road which they both knew as Mr Fretter’s property. It was a property well known to police; it had a reputation for its connection with drug use. Mr Fetter was also known to have a criminal history.
By the time Officers Thomas and Doyle pulled up in their car out the front of the Fretter property, there were already some members of the public gathered across the road watching the fire. Their recollection was that the MFS arrived soon after them, and had brought the fire under control within about 20 to 30 minutes. This is consistent with the evidence of Commander Fraser of the MFS.
Officer Thomas said that when they arrived, and had ascertained from the people watching that they had not checked whether there was anyone in the neighbouring property (the accused’s property), she went and banged on the front door of the house on that property. After what seemed like a long time, given the urgency, a man answered the door. Officer Thomas said he was wearing a black singlet and some shorts. She identified him in Court as the accused, and there is no dispute it was the accused.
Officer Thomas told the accused the house next door was on fire and that he needed to get out. In response he said that did not know that the next door house was on fire. She said that eventually he left the house with a female and (according to her recollection) two children.
Officer Doyle said that when they arrived out the front of the Fretter premises he went through the open roller door garage into the backyard. He could see through the windows that the ceiling was collapsing due to the fire. Flames were coming from throughout the house. He could not see any occupants through the windows, and it was getting too hot, so he returned to the front of the house. He recalled seeing Officer Thomas speaking to a male at the front of the neighbouring property (the accused’s property).
Officers Thomas and Doyle left the scene at around 8.00 pm in order to take statements from Patricia Pobke and Steven Pobke respectively.
Officer Sykes was also on uniformed patrol that evening. He was on solo patrol. He received a radio communication that led him to the fire. Another patrol (Officers Thomas and Doyle) was already there when he arrived; and the MFS arrived around the same time as he did. He saw flames coming through the centre of the roof. There were members of the public standing across the road from the front of the property.
Officer Sykes said that after checking that the other officers were ensuring the neighbouring house was vacated, he positioned himself to the rear of the property on fire. He was standing in a vacant lot some distance back from the rear fence to that property. He could not remember how high the fence was. He recalled being approached by a couple of people (whom the other evidence reveals would have been Melanie and Jonathon Pobke), whose details he recorded and gave to the CIB investigators. Officer Sykes remained in that position until the MFS had brought the fire under control.
Officer Sargent was also on solo patrol that evening and attended the fire. Like Officer Sykes, he took up a position to the rear of the Fretter property. He was directly behind the Fretter property, and so to the south of Officer Sykes who was more behind the accused’s property. Officer Sargent thought he was about 10 to 15 metres behind the property that was on fire. He agreed the fence was about 1.8 metres high across the back of both properties; and that from where he was positioned he could not see into the backyards.
After the fire had been brought under control, Officer Sargent went to the front of the properties and spoke with the accused. He had noticed a couple of CCTV cameras on the accused’s premises and asked to look at the tapes. He went inside with the accused who produced a couple of tapes. He left the tapes for the CIB to seize. (Those tapes were subsequently seized, but there is no suggestion they contained any vision of relevance.)
There was no evidence to suggest that any of the above–mentioned uniformed police officers went into the rear yard of the accused’s premises, or participated in the search of the shed.
Officer Flitton is a crime scene investigator. He arrived to take some photos in the shed at the rear of the accused’s property at about 10.20 pm. He had been requested to attend by members of the Elizabeth CIB, who were present when he arrived. He took photographs of a red jerry can located in the accused’s shed – both with the item in its original location under a shelf, and on the floor of the shed. The photographs suggest that the jerry can was about 30 cm high by 20 cm wide.
Officer Flitton agreed that he could not say whether the jerry can had been touched by any of the CIB officers (Officers Putsey, Binyon or An), or indeed the accused, prior to his arrival to take photographs.
Officer Flitton explained that after the photographs were taken, a sample of liquid was taken from the jerry can. Usually an accelerant would be sampled by decanting it with a pipette into a glass vial. But in this instance, because there was only a small quantity of liquid in the jerry can, he could not get the pipette into the container and so the contents were poured into a plastic bag and then a pipette used to transfer it into the glass vial.
He was assisted by a CIB officer in this process. He agreed that when handling the jerry can gloves should have been worn so as to prevent contamination. While he maintained that he wore gloves, he was shown a picture of an ungloved hand holding the jerry can. He could not recall which of the CIB officers was holding the can, although it was the one who had assisted him in the process of photographing and decanting the jerry can. (Subsequent evidence revealed that it was Officer Putsey’s hand.)

Officer Flitton said he did not make any assessment or observations of any dust markings when the jerry can was moved. It was not a matter to which his attention was directed. He did note that there was some moisture down the throat or nozzle of the jerry can. However, he said he was not qualified to make any determination of whether that was due to the can having been used a day earlier, a week earlier or some longer period. He was not qualified to answer questions about the residue of flammable liquids.
Three members of the Elizabeth CIB also gave evidence: Officers Putsey, Binyon and An. They arrived together at the accused’s premises, along with an Officer Taylor, at about 8.40 pm. Uniformed police were present, and they received a briefing from Officer Sykes.
Officer Putsey said that he had received information about a red jerry can and so when he arrived he searched the shed at the rear of the accused’s property pursuant to a general search warrant. He was accompanied by Officer Flitton and the accused. The accused took a step or two into the shed and pointed out the jerry can, and then left the shed. He and Officer Flitton then entered the shed. He said that he believed no one had entered the shed prior to this because he had explained his general search warrant to the accused before entering the shed, and no other officer had had the authority to go into the shed; this was why his search warrant had been required.
Officer Putsey observed that there was liquid near or under the front cap of the jerry can. He then assisted Officer Flitton to decant some of the contents of the jerry can into glass vials, which he then booked into the police property management system. He agreed that the photographs showed him not using a glove, but added that it did appear that he was holding a plastic bag in his hand, or under his fingers.
Officer Putsey was asked whether he made any observations about the area immediately around the jerry can. He answered:
AYeah, there was, from memory, somewhat like a dust ring where it should have been. Prior to going in there there was a conversation had where I was told that the it should be covered in dust and be exactly where it should be and it was obvious that it wasn’t in that position, it looked as if it had been put back, but not to that exact spot.
QWas there dust in the area at all.
AYeah, I could see that it wasn’t where it should be because of the dust that was there.
QJust to get this right, there was dust there but the position of the jerry can suggested it had been put into a position which was –
AInconsistent with it having sat there for a long period of time.
Officer Putsey suggested that the dust mark could “vaguely” be seen in one of the photographs in evidence. But he added that they had tried to get photos of both the dust mark and the liquid near the opening of the can, but had experienced issues with the lighting “and things like that”. In cross-examination he said that he certainly recalled discussing the liquid around the fuel cap with Officer Flitton, but acknowledged that the dust might simply have been something he noted because he had been told to look for it.
Officer Binyon gave evidence that he arrived with the other officers from the CIB. He accompanied the accused to the shed to identify the jerry can. He noticed that the nozzle appeared damp. But having identified the can, and having made that observation, he left the shed. In cross-examination he agreed he was not qualified to express any opinion about the persistence of residue from fuel or similar liquids.
Officer An described the accused as wearing a dark or black coloured singlet with charcoal three quarter length shorts and black boots. At around 9.00 pm he arranged for an audio visual recording to commence, and he then conducted the interview of the accused that I have earlier summarised. The accused was arrested for arson, and then, at about 10.55 pm and after the shed had been searched, he was taken to the Elizabeth Police Station. A DNA sample was taken from the accused, and his singlet top and shorts were seized and stored in tins. His boots were also seized; they were placed in a paper bag because there was no tin big enough. Officer An used gloves when handling the clothing, and arranged for these items to be sent to the Forensic Science Centre for testing.
In cross-examination, Officer An accepted that the accused’s hands were not bagged; nor was he given overalls to protect his clothing from contamination. Nor did he take any step to test what the accused had sat in – although Officer An said that he knew that the accused had said in his interview that he had watered the garden that afternoon, the inference being that he assumed it was water.
Officer An also agreed that the shed contained several petrol fuelled items, and in particular two motorcycles, a lawn mower and a whipper snipper. He also agreed that a number of drink containers, both bottles and cans, were found in the rear yard of the accused’s property.
Officer An was asked about the photographic identification procedures undertaken by Patricia and Steven Pobke. He had made enquiries; his understanding was that the procedures were undertaken and included a photograph of the accused amongst the 12 photographs used for each procedure. However, the results were negative and there were no longer any notes or recording from the procedure.
Officer An said he knew of Mr Fretter. He was aware he had a fairly extensive criminal history; that he was a caucasian male, about 176 cm tall, with a medium build, dark brown hair and (when he dealt with him) a goatee beard. He identified Mr Fretter in some photographs tendered by counsel for the accused. In cross-examination he clarified that while he knew of Mr Fretter, he had only met him in the weeks leading up to the trial and that there were some differences in his appearance relative to the photographs.
Ms Brown
Ms Brown is a senior forensic scientist from the Forensic Science Centre. She is the science leader of the trace evidence section, and at the time of giving evidence in this matter was the acting manager of the chemistry department. Her expertise as a chemist includes the examination and testing of materials to determine traces of volatile and flammable liquids, known as ignitable liquids.
There was no challenge to Ms Brown’s qualifications and expertise to give the evidence she gave.
Ms Brown explained that the process for testing for ignitable liquids differs depending upon the nature of the sample. In the case of clothing, it is usually delivered to the Forensic Science Centre in an airtight container. They would then open the container and use a syringe to extract some of the air from that container into a tube containing some absorbent material. This material would then be tested using a scientific instrument that utilised gas chromatography mass spectrometry to separate out the various chemicals that were present and allow detection of the various chemical compounds. Thus it was the air around the clothing, rather than the clothing itself, that would be tested. The reason for this is that the residues being tested for are so volatile that they readily evaporate into the surrounding air.
In the case of liquids, a small sample would be taken from the liquid itself, but the testing would then be of the air around that sample in a similar manner to that described above.
When testing for the presence of petrol, the process involves testing for the presence of 10 different compounds or markers. If those 10 compounds or markers are identified, then Dr Brown would be “scientifically comfortable” that petrol was present. She later described such a result as a “conclusive finding”.
Turning to the tests conducted in the present case, on 18 March 2015, the Forensic Science Centre received from SA Police two fuel samples, a tin containing a singlet, a tin container some shorts, and a paper bag containing some shoes.
Ms Brown did not test the shoes because the bag was not airtight, and so the shoes had not been appropriately stored. She could not be confident about the integrity of the sample, and even if petrol had been present she would have expected a negative result on account of evaporation.
However, the liquid, singlet and shorts – or more accurately, the air immediately around them – were tested. Each tested positive for the presence of petrol in what Ms Brown described as conclusive findings.
While these results indicate that the two items of clothing contained residue of petrol, and that the liquid in the jerry can was petrol, it was not possible (from the test results) to say that they came from the same batch or source of petrol, or even that precisely the same substance was present in each case. All that could be said was that they each tested positive for the range of compounds known as petrol. It was only in rare cases – for example, where a common impurity was detected in each sample – that it could be said the petrol came from the same batch or source. Otherwise, and in the usual course, one batch or source of petrol cannot be distinguished from another by this testing.
In assisting to interpret the positive results in respect of the items of clothing, Ms Brown explained that their test only generated a negative or positive result, rather than indicating the quantity or extent of the particular compound that was present. However, the Forensic Science Centre did impose its own limits of detection, and the results in this case were “well above” those limits.
Ms Brown’s experience was that positive results were more commonly the result of direct contact between the item of clothing and petrol than, for example, either transfer through the presence of fumes, or transfer via someone’s hand. The reason for the unlikelihood of the latter was the volatile nature of petrol, and the speed within which it evaporated.
However, Ms Brown did not rule out the possibility of a positive result as a result of clothing merely being exposed to fumes rather than touching the liquid itself, or as a result of transfer via someone’s hand. She explained:
AIt depends on the scenario and how long they were exposed to those fumes and how close and in what sort of environment. I would suggest it would be fairly unlikely, but, if they were in a real enclosed space and they were exposed to fumes for a large amount of time, then that could be possible.
QBut nonetheless unlikely.
AWell certainly unlikely if it was out in the atmosphere or outdoors and just briefly.
QSo is it the case that it’s more common in your experience for the return of petrol on an item of clothing to have been caused by direct contact between the petrol and the clothing.
AYes, that’s correct. It would also depend on how soon after that exposure took place that they were then placed inside that airtight container. Petrols and other volatile liquids don’t persist very long, they readily evaporate. So in your previous example if someone was just exposed to some fumes, if that clothing was seized quite quickly and packaged correctly there may be residues detected on that, but if some time had elapsed then any residues that may have been generated could well have evaporated.
QBecause of the volatility of petrol does it evaporate relatively quickly from hands.
AYes, that’s correct.
QHow likely, or how common is it for petrol residue to be found on an item of clothing as a result of a person say touching some petrol and then touching the item of clothing. That’s probably a very difficult question to answer, I appreciate that.
AI’d say it’s fairly unlikely that there would be much opportunity for transfer to occur in that fashion. Again, if someone had petrol on their hand and then they touched some clothing and then that clothing was immediately bagged up or placed inside a tin, there could potentially be some residues detected on that clothing but, yes, if some time – a decent amount of time had elapsed I would say it’s relatively unlikely.
…
QIf petrol were to be transferred to an item of clothing from a person’s hands, how much petrol are you talking about on the person’s hands.
AIf – that’s a hard one to answer. You know, if you’ve ever had petrol spilt on your hands yourself you would know that it doesn’t stay wet for very long, it immediately starts to dry up and absorb into the skin or evaporate into the air, so I’s say there would definitely need to be more than just a drop or two on the hands for a significant amount to be then transferred to clothing and then subsequently collect and detected after that.
Ms Brown was later asked whether she could say anything from the outcome of the positive tests as to the likely timing of the contact with petrol for the two items of clothing in this case. She answered:
AAs I said before, petrol evaporates quite readily and doesn’t persist for very long, so you might be looking at 24, 48 hours max, depending on what has happened to that clothing in the time. If it’s continued to be worn and exposed to the environment it it’s going to readily lose residues. If it’s been washed it’s definitely going to have lost residues. If it’s been thrown up in a ball and placed in a bag in the corner of a cupboard it may persist longer than that sort of time frame in that type of scenario, so it just depends on the circumstances, I guess.
Ms Brown said that she later, on 23 March 2015, received a liquid sample from Officer Pickburn. She tested this, but no ignitable liquid residue was detected. She considered the sample was most likely water.
Ms Brown was cross-examined about potential explanations for the positive results, including by reason of any failure to ensure the integrity of the samples provided to the Forensic Science Centre.
Ms Brown agreed that if the person wearing the shorts had sat in a liquid, and then perhaps touched both his wet shorts and singlet top, then this might have affected the result. She said that she would in that circumstance want to know what the liquid was that he sat in, or to have a sample of it. She also agreed that she was aware of a procedure whereby a suspect’s hands could be bagged to reduce the risk of contamination, and accepted the person might also wear some protective clothing to reduce the risk of contamination. But she did not know what the police protocols were in that regard. She acknowledged the risk of cross contamination, for example, if a plastic bag with fuel came into contact with clothing. She acknowledged a similar risk of contamination if a person handling a fuel sample did not change gloves or wash their hands before or between handling the clothing that was tested. But she again emphasised that she was not a crime scene investigator and did not know what their procedures were, or what had happened in this case.
Ms Brown was asked whether it would be a matter of concern to her if the person wearing the clothing had walked through a shed containing a couple of motorcycles, a whipper snipper and other fuel powered tools and equipment, and brushed passed one of those items. Ms Brown answered that this would be so only if there was a legitimate thought that the clothing came into contact with a liquid on one of those items; and if the clothing was collected very shortly after that time.
Ms Brown was asked to comment on the significance of a person being employed as a mechanic or tyre fitter. She said that if a person’s occupation exposed them to petrol on a regular or frequent basis, with that petrol coming into contact with their clothing, then it would be reasonable to assume that there would be an elevated risk of the presence of residue on those items of clothing.
Ms Taylor
The defence tendered a photograph taken from behind the rear of the accused’s property looking towards the rear of that property. It was tendered through the accused’s mother, Lynn Taylor, who said she took the photograph in June 2015, apparently because she did not think it would have been possible for her son, the accused, to have been seen in his rear yard as she understood a witness had purported to do.
Ms Taylor confirmed that she was the owner of the accused’s property. She said that she took the photo with her phone while standing on the kerb on the opposite side of the road at the rear of the accused’s premises, and while holding her phone at full length above her head. She did not agree that she was on higher ground than the back yard of the accused’s premises.
The photograph itself did not show much of the rear yard of the accused’s premises. The rear fence largely blocked the view, with the rear of the house only visible from about the base of the windows upwards. The accused, who was standing in the yard at the time his mother took the photograph, could only be seen from about his mouth upwards. That said, if the accused had been standing closer to the house than where he was when this photograph was taken, it is apparent that more of his body would have been visible. Put another way, the position from which the photograph was taken, and hence the line of sight that it depicted, was such that the accused’s upper body would not have been visible when standing towards the back of the yard and near the fence, but would have been visible when he were standing close to the house.
Other evidence
It was an agreed fact that the accused is 175 cm in height. There was also some evidence, which was not disputed, to the effect that the accused was employed as a mechanic or tyre fitter.
In addition to the above, there were some documentary exhibits tendered in the defence case. These included documents confirming that the ANZ bank had repossessed the Fretter property only a few weeks prior to the fire. They suggested that Mr Fretter had defaulted on his mortgage, resulting in an order for possession being made on 14 January 2015. The order was to take effect 14 days after service. Presumptive service occurred on 22 January 2015, meaning that the order took effect on 5 February 2015.
The defence also tendered Mr Fretter’s offender history. It showed an extensive criminal history on the part of Mr Fretter, including some drug offending, an offence of serious criminal trespass, and offences of dishonestly taking, receiving and dealing with property.
The police offender history gave a profile of Mr Fretter which included the following details – born in 1977; weight of 77 kilograms; height of 176 cm; slim build; caucasian; short brown hair; clean shaven.
The defence also tendered some photographs of Mr Fretter taken from Facebook. Some of them bore a date of October 2016, although this was not necessarily the date they were taken. They showed Mr Fretter to be of about average height and build, with short dark hair and some facial hair.
Consideration of circumstantial case in relation to identity of arsonist
I have set out earlier in these reasons the strands of circumstantial evidence relied upon by the prosecution in support of its case that the accused was the arsonist. I have also summarised the defence response to that case, which both challenged the strength of the prosecution evidence and pointed to the existence of other possibilities that it was contended had not been excluded by the prosecution.
A number of issues arise in my consideration of the evidence relevant to these matters. I propose to address these issues, before then summarising the findings that I have made and assessing the overall effect of the prosecution’s circumstantial case in the context of those findings.
Observations of person entering and leaving the Fretter property
The prosecution relies upon the evidence of the Pobkes as supporting findings that the accused was seen entering the Fretter property shortly before the fire was observed and then leaving that property shortly after the fire had taken hold, and that on both occasions he was carrying an object that the prosecution contended was a container that might have contained an accelerant (and, in particular, petrol).

However, the difficulty for the prosecution case is that I do not consider that I can draw any inference about how long that area of dampness might have existed or persisted, and hence when the jerry can was used, given that the liquid in the jerry can was petrol. Because of the nature of the liquid, I consider that I would need assistance from an expert before I drew any conclusions about these matters. While there was some evidence from Ms Brown that the chemical compound relied upon in testing for petrol evaporates rapidly, that is not quite the issue in the present context.
No witness purported to have relevant expertise to assist me with this issue. Officer Pickburn agreed that he was aware that an accelerant might evaporate but nevertheless leave a wet or “oily” mark. He acknowledged that it was “quite possible” that this damp appearance and residue might persist for a period of time, but said that he did not have expertise in relation to such matters. Officer Flitton, the crime scene investigator, and Officer Binyon both eschewed any relevant expertise, and did not express any opinion on the issue.
Officer Putsey gave evidence that the positioning of the jerry can was out of alignment with a dust mark that he observed. He thus formed the view that the jerry can’s location was inconsistent with it having been in that location for a long period of time. I have earlier summarised, and extracted portions of, his evidence on this issue. This included evidence that the dust marking to which he referred could “vaguely” be seen in one of the photographs in evidence. Officer Flitton did not make any observation or assessment of dust marking around the jerry can. While Officer Putsey originally suggested that he discussed the dust marking and damp residue with Officer Flitton, he subsequently acknowledged that their discussion might have been confined to the damp residue.
The photograph in question is, in my view, equivocal. I do not consider it a safe basis from which to drawn any conclusion about any dust marking or its significance. Further, and while I accept the honesty of Officer Putsey’s evidence, and the reliability of his observation that there was a discernible dust marking, I am not persuaded that this is of itself a sufficient basis for me to make any finding about how recently the jerry can was last handled or moved. While it does suggest that the jerry can was at some point in time in a slightly different location, and had been moved more recently than when dust started to gather around the jerry can in its original location, I do not consider that I can have any confidence from the dust marking about when the jerry can might most recently have been shifted. I do not know how quickly dust gathers in that shed, and hence whether the relatively dust free area (or less dusty area) that Officer Putsey observed is indicative of the jerry can having been moved within the last day, the last week or indeed some longer period.
Counsel for the accused suggested that there was also a risk that the jerry can might have been moved by a police officer prior to it being seen by Officer Putsey, with this providing the explanation for the jerry can being out of alignment with the dust marking. While this risk cannot be entirely excluded, I do not consider this to be a likely scenario on the evidence. There is no positive evidence to suggest that any police officer had accessed the shed ahead of Officer Putsey’s observations, and on the evidence of Officer An to the effect that they were awaiting his general search warrant before doing so, there is some basis for inferring that this did not occur.
In summary, while I am satisfied that the jerry can which the police inspected and photographed did contain petrol, I am not satisfied that the evidence as to the appearance and location of the jerry can is sufficient of itself to warrant a finding that the jerry can had been recently handled. However, my findings that the jerry can had some damp residue near its nozzle, and was sitting out of alignment with a dust marking when inspected by the police, are nevertheless findings that fall to be considered as part of the overall circumstantial case against the accused.
The petrol residue on the accused’s clothing
Ms Brown gave evidence that both the accused’s singlet and shorts tested positive for petrol. I have earlier summarised her evidence on this issue, and have said that I accept her evidence and opinions. However, the issue remains what conclusions might be drawn from her evidence and opinions.
The prosecution case is that the explanation for the petrol residue on the accused’s clothing lies in him having handled the jerry can of petrol on the day of the fire. The defence case challenges the sufficiency of the evidence to support such a conclusion. On the defence case there are other potential explanations for the results obtained by Ms Brown’s testing – including, for example, the possibility that the accused’s clothing came into contact with petrol or petrol fumes in the context of his work, by touching against one of the fuel powered pieces of equipment in the shed, by the accused sitting in petrol and then using his hands to transfer the petrol from his shorts to his singlet, or by contamination as a result of inadequate precautions being taken by the police to prevent this occurring.
In my view, each of the above potential explanations is unlikely, if not fanciful, when considered in light of the entirety of the evidence, including Ms Brown’s evidence to the effect that the volatile nature of petrol means that positive results are more commonly the result of direct contact between the clothing and petrol (rather than contact with fumes or transfer via a hand), with that contact generally occurring within the 24 to 48 hour period prior to the items of clothing being placed in appropriate air-tight storage.
There was some evidence to the effect that the accused worked as a tyre fitter or mechanic. While it may be inferred that in this line of work he and his clothing might from time to time come in contact with petrol, there is no evidence to suggest that this was the explanation for the presence of petrol on the clothes he was wearing when he was arrested. There was no evidence as to when the accused was last at work. Given that the day of the fire was a Sunday, and that he did not mention going to work when describing his activities that day in his police interview, there is no reason to think that he went to work that day. While it is possible that he worked the previous day, there was no evidence to suggest that he worked on Saturdays. In any event, even if he had been to work the day before, there is no evidence to suggest he wore the same singlet and shorts the preceding day. While a possibility, it is not a natural or obvious inference.
I regard the remaining possible explanations for the positive result to be equally speculative. They are theoretical possibilities that do not in my view have any foundation in the evidence. I do not accept that they are reasonably possible, let alone likely, explanations for the positive tests for petrol on the accused’s clothing. There is no evidence to suggest, or reason to think, that the accused had brushed his clothing against any of his fuel powered tools that day – either when pointing out the jerry can to the police, or earlier in the day. While the audio visual record of the police interview does show the accused sitting in some liquid, there is no reason to think that this was other than water from his earlier watering of the lawn. As for the procedures employed by the police giving rise to a risk of contamination, while it may be said that they could have done more to reduce this risk, I am nevertheless not persuaded that their actions did give rise to any material risk of contamination that would explain the positive results. It is true that there is a photograph which shows Officer Putsey holding the jerry can with an un-gloved hand. But it does appear that he at least used a plastic bag to avoid his hand coming in contact with the jerry can. Similarly, while the evidence suggests that the accused’s hands were not bagged, and that he was not given protective clothing, and leaves unclear precisely how the fuel sample was handled after it was taken from the jerry can, it remains speculative to suggest that this somehow resulted in the positive test results given Ms Brown’s evidence as to what a positive test result signifies.
In summary, I am satisfied that the accused’s clothing came into contact with petrol sometime during the day of his arrest. The prosecution has excluded any reasonable possibility that the positive test results were the result of any of the potential explanations suggested by counsel for the accused. While this leaves as the most likely explanation for the test results that the accused handled the jerry can in the shed, I do not make that finding on the basis of the test results alone. The appropriateness of a positive finding to that effect is best considered in light of the circumstantial evidence as a whole.
The accused’s motive
I deal more generally with the accused’s police interview in the next section of my reasons. However, one matter that emerges from that interview and forms a strand in the prosecution circumstantial case,[9] is the evidence of a motive on the part of the accused to set fire to the house on the Fretter property.
[9] It is not an indispensable link in a chain of reasoning such as to require proof beyond reasonable doubt: see the recent discussion in R v Quist (2017) 127 SASR 471 at [75]-[80] of the relevant authorities, including R v Gassy(No 3) (2005) 93 SASR 454 at [345]-[364].
While the accused knew Mr Fretter, and acknowledged having some conversations and contact with him, it was not suggested, and could not sensibly be suggested, that his connection with Mr Fretter provided any relevant motive.
However, in his police interview, the accused made it plain that he was not at all happy about the derelict state of the house on the Fretter property. As set out in my earlier summary of his interview, in explaining his reference to the fire being something that was “waiting to happen”, the accused described the derelict state of the premises in quite some detail. It is plain from watching and listening to him talking that he thought the house had been attracting drug and other criminal related activities, and that this was something that was a source of annoyance and concern to him.
While the accused denied any involvement in the fire, the above is evidence that the accused might have had at least some motivation to light a fire. Of course, the existence of a potential motive does not mean that the accused did light the fire. Indeed, the accused’s counsel points to the ready proffering of his unhappiness and concerns about the state of the neighbouring property as something that it was unlikely the accused would have done if he were the arsonist. But the existence of this potential motive does nevertheless form a strand in the prosecution’s circumstantial case against the accused.
The accused’s police interview
Evidence of the accused’s police interview was tendered by consent. The entirety of that interview was received in evidence. It follows that I can and should take account of both the inculpatory and exculpatory aspects of the interview. However, I am not required to treat equally all aspects of the interview. I might more readily accept statements made by the accused that are contrary to his interests, than those that are apparently self-serving.
Based upon the statements made by the accused during his interview, I accept his description of the derelict state of the premises. I accept that he was responsible for the burnouts that attracted the attention of the Pobkes that Sunday evening, and that he did them because he had had an argument with his partner. I accept that he was home during the afternoon in question and that he watered his lawn. I accept that he was home (or at least in the vicinity of his home) during the period the fire was lit and took hold. I accept that he used his partner’s phone to telephone the MFS and report the fire. I accept that he watched the fire in the neighbouring premises from his rear yard. I accept that he had been drinking alcohol during the afternoon or evening.
However, there are some other things that he said that I need to assess in light of the balance of the evidence in the case. In particular, I need to assess the truthfulness of his statements that he had no involvement in lighting the fire; that he had not been into the Fretter property that day, and indeed had not been into that property since two days earlier; that he had not even been out the front of his premises that day; and that he had not touched the jerry cans that day, or indeed for “a good three weeks”.
The prosecution contends that I should reject each of the statements of the accused in the preceding paragraph as lies, with each reflecting at the very least upon the accused’s general credibility. However, the prosecution goes further and contends that the accused’s statements (i) that he had not been into the Fretter property for two days, and (ii) that he had not touched the jerry cans for three weeks, were both lies reflecting a consciousness (or implied admission) of guilt on the part of the accused, and hence as probative of his guilt. As such, the prosecution contends that these two lies each form strands in the prosecution’s circumstantial case. It is to these two alleged lies that I now turn.
Lies reflecting consciousness of guilt
Ordinarily, the telling of a lie will only affect the credit of the witness or accused who tells it. As a corollary of this, the rejection of a witness’ or accused’s account denying a particular matter does not ordinarily prove that the matter is true; rather, the witness’ or accused’s evidence is simply ignored.[10]
[10] See Edwards v The Queen (1993) 178 CLR 193 at 208; R v Quist (2017) 127 SASR 471 at [167]-[168].
However, in certain limited circumstances, a lie told by an accused may go further and amount to conduct which constitutes an implied admission of guilt and hence evidence probative of the accused’s guilt.
The Court must be satisfied of the following matters before evidence of an alleged lie told by an accused can be used as evidence of a consciousness (or implied admission) of guilt: [11]
1.   that the accused made a false statement about a material issue;
2.   that the false statement was a lie (that is, a deliberate untruth as opposed to a statement made out of confusion or incorrect recollection);
3.   that satisfaction of 2 is independent of a finding as to an element of the offence in respect of which the prosecution seek to use the alleged lie as probative of guilt (that is, the reasoning cannot be circular);
4.   that the accused told the lie out of a consciousness of guilt (that is, because he knew that the truth of the matter about which he lied would implicate him in the offence); and
5.   by way of corollary of 4, that the accused did not tell the lie for some reason other than a consciousness of guilt of the relevant offence (such as out of panic, to escape an unjustified allegation, to protect some other person, out of a consciousness of guilt of some other offence, or to avoid some other consequence extraneous to the relevant offence).
[11] R v Ford [2016] SASC 112 at [33] per Blue J, as adapted by me in some minor respects. See also the similar list set out in his Honour’s reasons in R v Quist (2017) 127 SASR 471 at [169] (and the authorities referred to in the footnotes to that passage), and in Lovell J’s reasons at [289].
Each of these propositions is reflected, and elaborated upon, in the well-known passage from the reasons of Deane, Dawson and Gaudron JJ in Edwards v The Queen.[12]
[12] Edwards v The Queen (1993) 178 CLR 193 at 208-211.
As their Honours also pointed out in that passage, while the accused’s guilt must ultimately be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with other evidence as part of a circumstantial case, and for that purpose does not have to be proved to any particular standard of proof. The lie, and its character as an admission against interest, need only be proved beyond reasonable doubt where it reflects an indispensable link in a chain of evidence necessary to prove guilt, or where it is the only evidence against the accused.
As the following passage from the reasons of King CJ in Harris v The Queen[13] makes plain, the circumstances in which it is appropriate to use a lie as probative of guilt are relatively rare:
The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime.
The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can flow from a readiness to treat lies of an accused person as positive evidence of guilt.
[13] Harris v The Queen (1990) 55 SASR 321 at 323, as recently extracted and applied in R v Quist (2017) 127 SASR 471 at [104], [309].
In this case, the prosecution contends that the accused told two lies that reflected a consciousness of guilt on his part, namely:
· that he had not been into the Fretter property for two days; and
· that he had not touched the jerry cans for three weeks.
As to the first of these, I am satisfied that the accused’s statement was false. It is contradicted by my finding, based largely on the evidence of the Pobkes, that the accused walked onto the Fretter property shortly before the fire was first observed. I am also satisfied it was a lie. It was a deliberate untruth. There was no room for confusion or mistake about this matter. And given the recent timing of his entry onto the Fretter property relative to when he made the statement in his police interview, there is no reason to think that the accused’s memory had let him down.
While a finding that the accused lied about his presence on the Fretter property at the time of the fire goes close to relying upon a finding that the accused was the arsonist, and hence impermissible circular reasoning, it does not quite do so. A finding that the accused was present on the Fretter property at about the time the fire started, while a significant piece of circumstantial evidence on the facts of this case, nevertheless stops just short of establishing that the accused was the arsonist.
However, the difficulty with the prosecution reliance upon this lie as probative of guilt is that I am not satisfied the lie was told out of a consciousness of guilt. Unlike the lies as to the accused’s presence at the scene of the crime posited by King CJ in that passage extracted above from his reasons in Harris v The Queen, the lie in this case was not told at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing on the Fretter property. In this case, the accused told a lie about being on the Fretter property at a time when it was obvious that there had been a fire in the house on that property, and indeed that he was under suspicion of having been involved. In those circumstances, while it may be inferred that the accused told the lie so as to distance himself from involvement in the fire, it is possible the lie was told simply because he knew it would look bad for him if he had been on the Fretter property, and only serve to fuel the police suspicions. For example, if the accused had smelt smoke from the earlier stages of a fire and had gone to investigate, he might have lied about this not out of a consciousness of guilt but out of an apprehension that it would look bad and that he may not be believed as to his reason for going onto the property.

Ultimately I am not satisfied that the lie told by the accused in relation to his presence on the Fretter property at about the time of the fire reflects a consciousness of guilt on his part. I thus do not include his telling of this lie as circumstantial evidence probative of the accused’s guilt. I confine my use of this lie to my assessment of the credibility of the accused’s version of events in his police interview.
Turning to the second alleged lie, I do not consider that I can be satisfied that this was a lie without engaging in the proscribed circular reasoning, or something so close to this as to render it unfair to the accused to rely upon this alleged lie as an item of circumstantial evidence probative of his guilt.
By way of explanation for this conclusion, the evidence of the Pobkes falls short of establishing that the accused handled the jerry can on the day in question. It goes no further than establishing that a person (whom I am satisfied was the accused) was seen carrying an object which was consistent in appearance with a container such as a drinking can or bottle as he entered and left the Fretter property. The evidence of Officer Putsey as to the dust marking is consistent with the jerry can having been moved in recent times, but for the reasons I have explained, falls short of establishing this. Finally, the evidence of Ms Brown, while establishing that the accused’s clothing came into contact with petrol at some time during the day of the fire, nevertheless falls short of establishing that the accused handled the jerry can in that period. In summary, I do think these strands of evidence considered either individually or in combination go quiet as far as to establish that the accused lied about when he last handled the jerry can.
It will be apparent from the balance of my reasons that I have ultimately concluded that the appellant did handle the jerry can that day, and so did lie, but this is a conclusion I have drawn from a consideration of the circumstantial case against the accused as a whole. As such I consider it would involve circular reasoning, or at least would be unfair to the accused, to rely upon the accused having told a lie about this matter as an item or strand of circumstantial evidence probative of the accused’s guilt. I therefore do not do so.
Possibility that Mr Fretter or someone else was the arsonist
I have already mentioned the defence submission that it is a reasonable possibility that Mr Fretter or someone else was the arsonist. In this context, it is of course important to keep in mind that it is not for the defence to prove that someone else lit the fire. The onus at all times remains on the prosecution to establish beyond reasonable doubt that the accused lit the fire. In a circumstantial case such as the present, this includes satisfaction on my part that the prosecution has excluded as a reasonable possibility that someone other than the accused lit the fire.
Here there is some evidence relevant to the potential involvement of Mr Fretter. He was the registered proprietor of the house that was set on fire, and had recently had the property taken from him by the ANZ bank. There was thus not only a connection between Mr Fretter and the property, but also the possibility of resentment on his part towards the bank such that he may have had a motive to set fire to the property.
There was also the evidence that I have mentioned as to Mr Fretter’s criminal history, suggesting that he is a person who might have been capable of, and prepared to, commit arson. Finally, there was also the evidence that Mr Fretter’s height, build and hair are likely to have been consistent with the description of the person seen by the Pobkes.
On the other hand, there was no evidence placing Mr Fretter at, or in the vicinity of, his property at the time of the fire. The accused claimed not to have seen Mr Fretter for some time, and the evidence was that the Fretter property had been derelict and unoccupied for some time. While there were a number of people who stopped over the road to observe the fire from the front of the Fretter property once it had commenced, there is no evidence to suggest that Mr Fretter was one of these people. There was no suggestion from Melanie Pobke or the uniformed police at the rear of the properties that they saw anyone else in the vicinity of the Fretter property.
In closing addresses, mention was made of the possibility that the accused’s partner, Stacey, was the arsonist. While the evidence suggests she was home at the relevant time, and hence within the vicinity of the Fretter property, there is nothing in the evidence that in my view elevates the possibility of her involvement beyond fanciful speculation.
Reference was also made to the derelict nature of the property, and its connection with drug related and other criminal activity. While I have had regard to this submission, and the evidence in support of it, there was ultimately nothing more than a speculative basis for suggesting that some unknown person might have been responsible for the fire.
Summary and conclusions
I conclude by considering the overall effect of the circumstantial case advanced by the prosecution as to the identity of the arsonist. For the reasons set out above, I am satisfied of the following facts and circumstances:
·    The fire was deliberately lit by a human, and with the use of an accelerant.
·    A person was seen entering the Fretter property shortly before the fire was first observed, and leaving the Fretter property shortly after it had been observed.
·    That person had physical characteristics similar to those possessed by the accused, albeit this evidence was very general in nature and was also likely to be consistent with the appearance of Mr Fretter and indeed a significant proportion of the male population.
·    That person was wearing a black singlet, long shorts of khaki colour and dark boots. The accused was wearing clothing matching this description when interviewed by the police.
·    That person was seen coming from, and returning to, the accused’s property.
·    That person was carrying an object consistent in appearance with a drinking can or bottle, and hence a container that might have been used to transport petrol.
·    The accused was within the vicinity of the Fretter property when the fire started and hence had the opportunity to light the fire.
·    The shed at the rear of the accused’s premises contained some fuel powered equipment as well as jerry cans.
·    One jerry can was positioned slightly out of alignment with a dust marking and had an area of dampness near its nozzle.
·    The contents of that jerry can tested positive for petrol.
·    The accused’s singlet and shorts tested positive for petrol, and had come in contact with petrol on the day of the fire.
·    The accused had a motive to set fire to the house on the Fretter property, namely his annoyance that it had become an attraction for drug and other criminal related activity.
For the reasons set out earlier, I am satisfied that it was the accused who was seen entering and leaving the Fretter property. Further, on the basis of the overall effect of the circumstantial evidence I am satisfied that the prosecution has proved beyond reasonable doubt that the accused intentionally set fire to the house on the Fretter property, and that he did so using petrol from the jerry can in his shed. While it is implicit in what I have already found, I reject as a reasonable possibility that the accused accidentally lit the fire, or was merely present on the Fretter property at the relevant time but not responsible for deliberately lighting the fire.
It is not necessary for me to make any finding as to the precise mechanism by which the accused lit the fire, but I consider it is likely that he did so by pouring some of the petrol from the jerry can in his shed into a drink can or bottle, which he then used to transport the petrol onto the Fretter property for use as an accelerant in setting fire to the house on that property. It is likely that his clothing came into contact with the petrol while pouring it, transporting it or using it as accelerant in lighting the fire.
While I have had regard to the evidence and submissions as to the possibility that Mr Fretter or some other person lit the fire, I am ultimately satisfied that this has been excluded by the prosecution as a reasonable possibility. I reject as untruthful the exculpatory statements made by the accused in his police interview, and in particular his denials that he had been on the Fretter property at the time of the fire, that he had handled the jerry can on the day of the fire, or that he had otherwise had any involvement in lighting the fire.
Verdict
I am satisfied that each of the elements of the crime of arson has been established beyond reasonable doubt.
I find the accused guilty of arson.