R v Zeng

[2020] NSWDC 761

District Court

New South Wales

Medium Neutral Citation:

R v Zeng [2020] NSWDC 761

Hearing dates:

18 November – 7 December 2020

Decision date:

16 December 2020

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Verdict of guilty on one count of arson

Catchwords:

Judge alone trial

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
Rui Zeng (Accused)

Representation:

Counsel:
S Hughes (Crown)
G Hoare (Accused)

Solicitors:
J Menzies (Crown)
D Cleverley (Accused)

File Number(s):

19/254631

Publication restriction:

Nil

Judgment ON VERDICT

1. On 18 November 2020 the accused pleaded not guilty to one count on the Indictment:

“Count 1 - On 22 April 2019 at Auburn in the State of New South Wales, dishonestly, with a view to making a gain for himself, did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire.”

2. This is an offence pursuant to s 197(1)(b) of the Crimes Act 1900. Both the Crown and the accused person agreed that the accused be tried by a judge alone, and an order was made pursuant to s 132(2) of the Criminal Procedure Act 1986 for the trial to proceed by way of judge alone. Upon arraignment, the accused pleaded not guilty to the charge, and this judgment records my verdict and my reasons for reaching that verdict.

3. The elements of the offence are as follows:

1. On 22 April 2019 at Auburn New South Wales,

2. The accused dishonestly,

3. With a view to making a gain for himself,

4. Did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents,

5. By means of fire.

4. The Crown bears the onus of proving each of the elements beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.

The evidence in the Crown case

5. After opening the Crown case, the officer in charge, Detective Senior Constable Muscat, gave evidence of some of the investigations he carried out in relation to this matter. They included various segments of CCTV footage obtained by him of the accused in the days leading up to 22 April 2019. The CCTV footage was obtained from Sydney Trains, Star City Casino, Burwood Woolworths and a business known as Transom Scaffolding, which operated on Adderley Street West at Auburn. A compilation of the CCTV footage became Ex A and was played in court.

6. There was no dispute that the accused was identified in each of the segments of video referred to above.

7. On 17 April 2019 the accused was shown at the Star City Casino cashing in $59,700 for gambling chips. On 18 April 2019, he was shown at the first floor office of Rainbow Sydney Pty Limited (“Rainbow Sydney”), a business operated by him at 6/164 Adderley Street West, Auburn at 6.33pm. Also shown in the video was footage of the ground floor of those premises at 6.36pm when the hard drive of the CCTV system in those premises was turned off. That hard drive was located in an office on the first floor of the premises, near where the accused was depicted walking.

8. On 22 April 2019, the accused was shown at 1.21pm to be at Woolworths Burwood purchasing one packet of Redhead firelighters containing 24 firelighters, together with a Woolworths reusable bag. He was later shown at Burwood station on the same afternoon carrying that bag, together with other bags onto the platform, where he caught a train. He was then shown exiting the Auburn railway station. At 2.09pm the accused was depicted walking along Newton Street South in Auburn approximately 250 metres away from his business premises. It was Easter Monday and he arrived at the premises at 164 Adderley Street West at 2.13pm. At 6.13pm he was shown walking out of the premises and then re-entering them. At 6.22pm he was shown leaving the premises carrying a bag with what appeared to be a cardboard box inside it. At 6.23pm he walked past the premises at 15 Newton Street carrying that bag.

9. Finally, the video footage showed a dashcam video taken from a vehicle travelling on the M4 on 22 April 2019 at 6.25pm, when the occupants of the vehicle detected a fire in the premises adjacent to the motorway at 6.26pm. They dialled 000 to notify the fire brigade. At 6.43pm the accused was shown at Auburn railway station.

Evidence of Jonathan Mealor

10. Mr Mealor was a fire officer with the NSW fire brigade and arrived at the scene of the fire at 164 Adderley Street West Auburn at 6.47pm. He observed large volumes of smoke in the area. Fire officers from Silverwater were already on the site trying to open the premises which were locked. Mr Mealor looked through an office window and gained entry to the premises, onto a walkway on the ground floor, raised approximately one to two metres above the floor. From that walkway he and another fire officer were able to fight the fire with the use of a fire hose.

11. Mr Mealor gave evidence that he observed, upon entry to the building, six different seats of fire, two of which were located on the western side of the building and were larger than the other four. When asked what made him think there were five or six different fires, he said:

“A: There was just large areas in between the seats of fire that, that weren’t burning, so I would just presume that whatever was in the – whatever was in between wasn’t on fire.”

12. Because of the smoke, Mr Mealor was wearing a mask and using a thermal imaging camera to identify the seats of fire so as to distribute water to them. He gave evidence that he did not see any firefighters touching any electricity box within the warehouse. The fires had flames rising to three to four metres and the two larger fires had flames higher than that.

13. Mr Mealor also observed bricks on the floor of the premises which had fallen from the walls. He prepared a report the following day.

14. A diagram drawn by Mr Mealor of the premises became Ex B.

15. In cross-examination, Mr Mealor gave evidence that once inside the premises, he was tasked with what was called “fire attack”. He was unable to say whether the bricks falling onto the floor was caused by the heat of the fire, but by the time he arrived, there were bricks on the floor. There was a great deal of smoke in the warehouse but visibility was “not so bad”. He was asked about the six seats of fire as follows:

“Q: Could I equally describe them as simply six points within the warehouse where you saw flames?

A: Well we describe them as seats of fire and the reason we use that term seats, is because it’s six separate fires that we have to put out. If the whole warehouse was on fire, then it would be different. So because there’s a gap between each of the fires, and if I was to be on the radio, then I would say, ‘we have six separate seats of fire’.

Q: But it could equally be described as there being six locations where flammable material was on fire?

A: Six locations where flammable material was on fire. I guess you could describe it that way, you could.”

16. Mr Mealor was asked about the two larger fires which were marked “F3” and “F4” on Ex B. He could not see what material or items were burning but did observe a forklift within the building in the areas of the fires marked “F1” and “F2”.

17. He gave evidence that standard practice was to isolate the power source at a fire scene, but that was not his role here. He did not, in fact, observe a power box within the warehouse.

18. Mr Mealor agreed that in his statement he had said that he could not see if there was any fuel between the six separate fires and gave evidence that it was entirely possible the warehouse was full of material but he could not see it. He could not offer an opinion as to whether the fires at “F3” and “F4” started before the four other fires, but agreed that a larger floor load could make a larger fire. He gave further evidence that he did not notice any damage to the roof structure of the warehouse whilst he was in the building.

19. There was no re-examination.

Evidence of Mr Wayne Schweickle

20. Mr Schweickle was a fire investigating officer with Fire and Rescue NSW and he prepared a report dated 8 November 2019, which became Ex C. There was no issue as to his qualifications as a fire investigator. His report concluded:

“On the balance of probabilities, using my experience as fire fighter and fire investigator, I have formed a hypothesis that the most probable circumstances of this fire are that there were multiple points of ignition.”

21. Annexed to his report were 38 photographs of the premises, together with an overlay map with 10 locations within the premises numerically marked.

22. Mr Schweickle gave evidence concerning various parts of the premises including the roof, which prior to the fire, had affixed a number of “whirlybird” vents which he opined had the effect of slowing down the spread of smoke and hot gases, thereby inhibiting the natural spread of the fire.

23. The following hypothetical was put to Mr Schweickle:

“Q. Can I put this hypothetical to you, I ask you to comment on its plausibility or otherwise, the - if there was a single point of ignition in this fire, what are the chances of that happening between having a regard to its 6.27pm the foot - it was where the footage you observed was taking place and the flames and the smoke are burning out of the place. And a single point fire having been ignited about four or five minutes earlier in that factory?

A. The, the, the size of the fire that I saw on the footage would not be consistent with a single point of origin. But I have to - I - I’d also have to consider the type and arrangement of fuel in that area. Were there any accelerants used in that area but on a normal or a, a - just a, a small incipient flame or some heat source applied to something, at, at one point to have a fire of that significance, I’d find that quite unusual.

Q. Unusual, how would you describe it apart from usual?

A. Well we have - a fire starts small and it goes through various stages of growth. So it takes time for that to grow and to, to build up. It’s, it’s - and when I use the word “previously accelerated” that’s use of maybe an accelerant like - something like petrol or, or gas or something that’s going to accelerate the speed of the fire. The growth of that - that fire. As I say, it would have to depend on the fuel load but the - it just seems to have - for my understanding, that’s quite a significant fire quite quick.

Q. If it were the case that there’d been a fire which the fire had originated as a result of and from a defect in a forklift charging system, you know where the forklift was in the fire?

A. Yes, I knew where the fire - forklift was and the charger, yes.

Q. If it had started that way, what would you expect of the timeframe?

A. I’d expect a slow progressive fire to build up. It would take some time for - if the fire was in the forklift or the charger it would then have to ignite some other combustible material nearby it or around it then that item would have to then grow into a larger fire and then ignite another compressive - combustible material and that would take time. It’s not - doesn’t become a, a raging inferno within the failure of one item unless of course it was accelerated by some means but I have no information as to that.

Q. If there was no - assume there was no accelerant, petrol or otherwise, what do you say about--

A. It would take time.

Q. When - you say “time”--

A. Yes.

Q. What about four minutes?

A. No, I wouldn’t expect that. That - the fire of that significance to be there within four minutes, no.”

24. Mr Schweickle was also asked to assume, accepting Mr Mealor’s evidence, that there were six separate seats of fire. He gave the following evidence:

“Q. I want you to assume there’s evidence from a firefighter of the name of Mr Mealor, that there appeared to be, from his observation, six separate fires burning or six different seats of a fire. Accepting his observations as accurate, and he says also, because of the poor visibility, he can’t see what’s on the ground but he sees what appears to be separate structures, six separate discrete fires. What bearing does that have, if any, on your assessment, in your opinions in the report?

A. Considering that the greatest area of damage was in that far corner which I’ve identified near location 5, that, that large burning there wouldn’t have been able to vent and the only form of heat transfer from that point is radiant heat.

Because of the six separate seats of fire that Mr Mealor saw and from my observations to have separate areas of burning, that the time frame wouldn’t allow for that fire to ignite those other parcels of fuel. So I didn’t see a connection from one point of origin to those other points of origin. In my opinion, they were all separate seats of fire. And to my earlier part that I couldn’t identify any evidence of drop down from above within the roof area--

Q. Which would start - so individual--

A. That could easily start individual seats of fire, yes.”

25. In cross-examination, Mr Schweickle conceded that he had visited the premises a number of times following the fire, but for safety reasons, had not been able to go deeply into the premises. He was shown a plan of the premises which became Ex 1 for the purpose of comparison with his overlay plan of the premises (Ex C, p 32). He was asked:

“Q: Is it not possible that the fire started in the area hatched in red on Ex 1, that’s where there is most damage and through some form of convection, conduction, radiation, it moved to other areas?

A: In my opinion, no.”

26. Mr Schweickle then clarified that whereas in Ex 1 the greatest area of damage was in virtually half of the premises, in his opinion, the greatest area of damage was in the south-western corner, identified by the number 5 on his overlay plan.

27. Mr Schweickle was asked about the dashcam footage in Ex A and the observations made by the occupants of the vehicle travelling past the premises. He gave evidence that the skylights on the roof failed first, allowing the fire, comprised of smoke, hot gases and flames, to vent and thereafter the roof would crack and fail under its own weight. He identified the skylights on the roof by reference to a photo on page 32 of his report. He was asked:

“Q: So it is indeed possible if there was a, let’s call a decent fire, at the area of the forklift/charger/No. 5 in the overlay where there’s a, say, a big pile of cardboard packaging, if there was a fairly intense fire there, it’s quite possible that before any of the fire collapsed, all of the 12, if we make it 12, skylights may indeed have perished?

A: It depends. It depends on the fuel load in that area. It depends on the arrangement of that fuel load. It depends on how long it’s been burning for. But, but there are so many variables that you, your guessing, basically, yes.”

28. Mr Schweickle agreed that it was difficult to be exact as to the drop-down material that fell into this fire from the roof. He was unable to estimate the maximum heat inside the warehouse at the point it was most on fire, but it was not thousands of degrees.

29. Mr Schweickle was shown CCTV footage of the premises on 18 April 2019, several days before the fire. In it he was able to identify pallet racking, some machinery, and various pallets which appeared to have cardboard boxes stacked on them. He was able to identify on the pallet racking a fairly decent fire load comprised of stacked cardboard boxes.

30. Mr Schweickle was also cross-examined on the prospect of failure in the connector between the forklift and its charger as a cause for the fire. For that to happen, he gave the following evidence:

“A. Sparking would have to be continuous. That sparking would then have to ignite a combustible and that combustible would have to burn and we’d start that process.

Q. Do you say there is no possibility that that may have been an initial way in which this fire started?

A. What I think from my evidence earlier is that the timeline for that didn’t work in with what the Crown had put to me.

Q. The Crown put to you that the fire started about four minutes before flames were seen?

A. Yes.

Q. Let’s assume that an electrical fire may have started before that time at the back of the warehouse, right, igniting some cardboard packaging. Would it not be possible then for that back part of the factory to quickly get itself a decent fire going and flames coming through the whirligigs or the skylights?

A. For your scenario or your hypothesis, you’d have an ignition point. The fire would grow and spread and spread into the fuel load. If there was sufficient heat to ignite a nearby fuel load that would grow but the gases, as I said earlier, and smoke that come off would go up, hit the highest point, vent out through the whirlybirds, that would be drawing the other air and the smoke out of those whirlybirds.

Q. Right.

A. Those skylights, which have a significant play, would fail and then the fire is able to vent and go outwards and the fire is the products of combustion being the smoke and hot gases and the flames themselves.

Q. Are you able to give us your best estimate as to how long that would take, in other words from the point when there is spark, an electrical sparking within the warehouse, to a point where an observer on the outside could see flames?

A. I’m sorry, not without knowing the exact layout of the - as I said earlier, I don't know what’s behind that because I can’t clearly tell you - that doesn’t clearly tell me what the fuel load is in that area.

Q. Understood.

A. That’s why I can’t tell you.

Q. Could it have been minutes from sparking to visible flames?

A. Through the roof?

Q. Yes.

A. That was seen on the dashcam footage?

Q. Yes.

A. In my opinion, no.

Q. Can you give me any idea of time?

A. Again, it’s--

Q. All you can say is it would take more than a few minutes?

A. Yes.”

31. Mr Schweickle was asked about damage he observed being burnt debris on the floor below electrical boards situated at point 8 on his overlay map. He gave evidence that it was quite possibly a seat of a fire, given the burnt materials on the floor.

32. In respect of the hardwood pallets within the premises, Mr Schweickle gave evidence that they had a high ignition temperature and that a sustained heat source would be required to ignite the pallets.

33. Mr Schweickle was also asked about whether a hardwood pallet could be ignited by a firelighter, and he gave evidence that there would be a slow rate of spread of fire, but it would burn itself out, leaving a burn mark. He was also asked about the accelerant detection canine used by police investigators which had not identified any accelerant. He was unaware whether the dog was trained on firelighters and gave evidence that what was looked for was any accelerant which had not been consumed by the fire. He was asked:

“Q: So it’s unlikely that that type of behaviour took place if this fire had been deliberately lit?

A: Well it – if, if it had been deliberately lit using accelerant, the accelerant has been consumed.”

34. Mr Schweickle was asked whether he was aware, prior to authorising his report, that it was the police’s view that the fire had been deliberately lit. He conceded that he was aware that the police were looking at that as a possibility.

35. Mr Schweickle was also cross-examined on the brick walls which had collapsed into the premises during the fire. He identified that they were structurally unsound, in that they had not been properly supported with metal ties. He did not agree that when the bricks fell into the premises they were hot enough to ignite the cardboard material, but was not qualified to give a further opinion.

36. Mr Schweickle acknowledged damage to the north-eastern part of the roof structure where girders were bent in a number of places. Whilst he had no indication whether the skylights were comprised of polycarbonate or plastic, he agreed there was a possibility that when the material melted it had been dropped down onto the warehouse floor. He disagreed, however, that drop‑down from the skylights occurred onto the pile of pallets shown in photograph No. 17, nor could the bricks that fell from the wall have been hot enough to ignite a pile of pallets.

34. Mr Schweickle conceded there was a possibility that radiant heat from the intense fire may have ignited cardboard placed on the metal racking.

35. Mr Schweickle was also asked about the charring of the two wooden railings on the balustrade on the walkway situated on the ground floor of the premises. He did not concede that the charring was caused by radiant heat from the fire. Had cardboard boxes been on adjacent pallets and had they been set alight, they would have given off sufficient heat to cause the railing to catch alight on its own.

36. Mr Schweickle was asked about damage, shown in photographs on page 22 of his report, to the electrical box in the factory as follows:

“Q. What’s your opinion as to how that damage occurred?

A. Well, there was obviously, because of the burnt pattern on the wall above the shelf to the right, and also because of the debris that’s been burnt on the floor just in front of it, and you’ve got the heat from the other points of origin, it’s, the electrical box is caught alight.”

40. He conceded that there were remnants of a fire underneath or near the electrical box on the floor, but could not say whether that debris was caused by cardboard boxes burning or not.

41. In relation to the forklift and charger, Mr Schweickle was asked as follows:

“Q. Ipso facto you don't think there was a fire or a major fire inside the charger, is that what you’re saying?

A. Yes. Basically if there was a fire inside the charger you’d expect that the paint being at the top of the flames would be burnt away.

Q. But if you look at the photograph above it you can see that the internal componentry of the charger is essentially destroyed totally, is it not?

A. Yes, sir, that’s correct.

Q. The photographs you took of the forklift although there’s one at page 26 they start largely at page 28 and go onwards and you make some reference to a mat being removed?

A. A rubber mat, yes.

Q. Tell us about the mat if you could.

A. It was just charred or had been destroyed or consumed on one side which is to me just a directional indicator that a heat source had come from that side.

Q. Are you able to say whether that was the same side as the charger or not?

A. From my recollection, yes.

Q. I think you indicated that the charger although it’s a free-standing unit was standing against the wall, was it not?

A. Yes. I couldn’t say it was hard against the wall, I didn’t get close enough but it was up near the wall, yes.

Q. And therefore the forklift would have been between the charger and the steel shelving?

A. Sir, I think there was a photo earlier that showed the charger just in front of the forklift.

Q. Go back to page 21 if you would. The top photo there, RPAS photo 4. that’s the charger?

A. Yes, sorry, I've got it now, yes. That’s the charger and you can see that it’s parallel with the tines of the forklift.

Q. So the greater heat source would have been between the charger and the forklift?

A. Not necessarily, no.

Q. Well, why would the mat on that side be destroyed rather than the mat on the opposite side?

A. My apologies, sir, you’re referring to the damage to the mat?

Q. Yes.

A. Yes, the heat source would have come from that but when you said between the charger and the forklift the heat could have come from the front of the forklift down between the forklift and the charger and then headed in that way.

Q. It could have?

A. That's correct, sorry.

Q. But the greater degree of heat was at some point between the charger and the forklift rather than on the other side of the charger--

A. That's correct.”

42. Finally, Mr Schweickle gave the following evidence:

“Q. Looking at the overview, the aerial if I can call it that, the heat that caused the damage to the mat of the forklift came from the charger side as opposed to the other side of the forklift?

A. Yes, that’s correct.

Q. You say it might have come towards the forklift from perhaps your number 5?

A. That’s correct, yes.

Q. Am I clear in saying perhaps that principal source of this major fire was in the area of the charger to about number 5 in that diagram?

A. No.

Q. Well it was certainly - that was the heat that caused the damage to the mat of the forklift true?

A. The fire in that area has in my opinion caused the damage to the mat, yes.”

43. In re-examination Mr Schweickle was asked:

“Q. You were asked whether you agreed that a drop down might have led to that fire, a drop down from the whirlybirds might have led to that fire and you said you disagreed with that proposition.

A. The drop down from the skylight?

Q. Yes.

A. And I disagree with it, yes.

Q. Why is that?

A. The - the location of the skylight was not directly above that point and I recall looking up specifically and I inspected that area and noticed that there was the silver underlying of a roof that’s, that’s insulation and there was no great damage in that area and there were - I could see nothing that could have dropped down onto the bin to start a fire in that area.”

Evidence of Mr Mario Conti

44. Mr Conti is a qualified auto electrician and owner of Mars Forklifts. He gave evidence that his business sold a Nichiyu forklift to a company called Rainbow Sydney on 22 January 2019. The forklift was a 2004 model with 4,980 hours usage. It had been purchased by Mr Conti’s business on 30 June 2018 and refurbished prior to its sale to Rainbow Sydney. Prior to its sale, it had a second hand battery installed. Pre-sale checks included checking the battery and charger and safety switches. Testing demonstrated there were no problems with either the forklift, the battery or the charger.

45. Mr Conti gave evidence that following the sale, a representative of Rainbow Sydney contacted his business about a fault with the bonnet latch. A technician attended the premises of Rainbow Sydney on 25 January 2019 and tested the unit. A further complaint was received on 17 April 2019 about the forklift making a loud noise. A technician went to the warehouse at Adderley Street West, Auburn, and established that the steer tyres were to blame for the noise.

46. Three photos of the burnt out forklift and charger became Ex D. Mr Conti gave evidence that it was unlikely the forklift was being charged, it appeared to be “about 2 metres, two and half metres away” from the charger, and the leads from the charger to the forklift battery were probably about “a metre, a metre and a half”. In his opinion it was unlikely that they were connected at the time.

47. Mr Conti gave further evidence that when an electric forklift is charging, the battery on the forklift itself may get hot, but not the outside of the charger. The DC cables between the charger and battery may get slightly warm after 10 to 12 hours of charging. In his experience, he had never heard of or seen a battery catching fire. Mr Conti gave further evidence that a bad connection between the charging points between the battery may cause the connecting plug to overheat and melt together. That would be caused by a bad connection and would take hours of high amperage and bad connections.

48. Mr Conti gave evidence that a bad connection will cause a spark to arc and jump between points. He was asked:

“Q. What would you say if someone was to say this? What’s the possibility of a fire resulting from a forklift or charger or the points of charging in the first 10 minutes of charging?

A. Virtually impossible.”

Q. What about if there’s fuel around it?

A. If there’s fuel, you’d have to have a major fault with the charger, more on the AC side, because the DC side wouldn’t have a chance to, to have any current or charge into it. So you’d have to have a major failure in the charger through the AC circuits, but to do that, you’d actually see the charger erupt into a ball of flames, but you, you got AC fuses on the charger and DC fuses on the charger internally.

Q. The fuses, the purpose of those is, what, to trip the –

A. If there’s an AC fault, those fuses are designed to blow. If it’s a DC fault, those fuses are designed to blow.”

49. Mr Conti was cross-examined on the three photographs in Ex D. He confirmed that it was unlikely the charger and forklift were connected because they were too far apart. He did not know if the cables on the forklift had been cut or had just melted away in the fire. He agreed he did not know whether either the charger or the forklift had been moved after the fire, prior to the photographs being taken.

50. Mr Conti gave evidence that if being charged, the Anderson plug would be sitting on the floor of the forklift. In the event of a short circuit, the two plugs would stick together and create a hot spot.

51. Mr Conti was also cross-examined about a major electrical fault in the actual charging cycle, causing a ball of flames. He gave the following evidence:

“A. For, for you’d have a ball of flames, you’d have to have something that’s fallen or dropped and a, and a dead short circuit internally. I’ve never seen it. It’s probably the wrong terminology for me to use. The – all the faults I’ve seen on, on chargers, AC charges, have just blown the fuses.”

…

Q. But if there is an electrical malfunction in the charger or from the AC current from the wall to the charger, that it may indeed result in flames in the charger, true?

A. You have to talk to a charger expert. The old chargers with the transformers had a lot more electrical components exposed. This particular charger has a lot – is electronically controlled, so no transformer.”

Evidence of Mr Gary Hodge

52. Mr Hodge had been employed in the forklift industry for 20 years and had worked in technical sales, product management and sales management. He gave evidence that Nichiyu forklifts were manufactured by a Japanese company and were imported without the battery or charger. Mr Hodge gave evidence that it would be unlikely a fire would start from an electric forklift if it was switched off, and in his experience he had never heard of or seen a fire starting from an electric forklift which was not operating at the time. When a forklift is turned off, it is completely isolated from the power source. When asked why he gave the following evidence:

“A. There a battery disconnect button. When the forklift is turned off, the battery is isolated from the machine, it’s no different to, say a power tool with a battery. If the battery is removed from it, it’s completely inert.”

53. In cross-examination, Mr Hodge was asked:

“Q. When the battery is being charged, there is activity in the battery, is there not?

A. The battery, yes, not the forklift.

Q. No connection between the battery and forklift, but there is an electrical connection between battery and the charger and wall?

A. Correct.”

54. There was no re-examination.

Evidence of Mr Greg Lualhati

55. Mr Lualhati was employed by Stanbury and Company Pty Limited, and qualified in the trade of electronic services for a period of over 30 years. His employer manufactured forklift battery chargers and he gave evidence that the Anderson connection plugs used in charging forklift batteries may become damaged due to the cables being run over. A damaged plug may arc if the positive and negative wires come into contact, causing sparks.

56. Mr Lualhati gave evidence that the charger could also be damaged by a power surge, however, the charger was protected from damage by a fuse which would blow out and cut the circuit.

57. A circuit diagram drawn by Mr Lualhati became Ex E. He gave evidence that a bad connection between two Anderson plugs in the charging process would cause the plugs to get warm, but not so hot that it could cause a burn to a hand. He gave the following evidence about the charger itself:

“Q. The charger itself, is there any mechanism or is there any part of the manufacture of the charger apart from the fuses which is designed to stop it burning?

A. Okay. Inside the charger, we have this thing called a thermal‑protection circuit. What it does with the charger, if the temperature inside the charger gets warm or hot, it will go on open circuit and it will stop the charger from working. That’s one of the main features of this..(not transcribable)..'cause there’s no, it’s not a fan system. It means there’s no moving parts inside so it caused itself on its own. So if the temperature inside the charger gets hot beyond that point, it will just go on open circuit and it stop the charger from working.

Q. Are there any other safety features in this charger apart from the fuses and that this system takes it into an open circuit?

A. Okay. There’s electronic bolts inside the, the charger that does most of the calculations if it’s getting, if the charger has to stop or has to keep on charging. But there’s a safety feature on this that if the charger is sitting for, say, 16 hours without doing anything, it will just stop on its own. And that’s - sorry, can I add, there’s an override alarm on it so that means, so that when you come in the next morning, “Hey, I had an override alarm”.

Q. On the AC side of the charger, because it’s three phase electricity, you’ve told us you’ve got three fuses. What would happen if one of those fuses malfunctioned?

A. Okay. One of them fuses malfunction means that there’s an, for an example, there’s an over current on it. It will go to the other two and one of those and it will go on open circuit and will stop the charger from working. You’re going to have two out of circuit.

Q. So they have to all fail?

A. No, at least, it will fail, two of them will fail, it will stop working.

Q. From the records of Stanbury & Co, do you say that there’s no recorded complaint received from Rainbow Sydney about this charger?

A. Yeah, there’s nothing on the record.

Q. Are you aware of any factory recalls on any of your chargers?

A. No. There’s no factory recalls on our chargers.”

58. In cross-examination, Mr Lualhati was shown a number of photographs of wiring which he recognised as connectors to the forklift. He agreed that it was a uniform style of wiring but it could come from either the charger or the battery on the forklift itself.

59. There was no re-examination.

Evidence of Mr Nicola Sutarov

60. Mr Sutarov is a forensic scientific investigator. There was no challenge to his qualifications and he prepared a report into the fire at 6/164 Adderley Street West, Auburn, dated 8 October 2019, which became Ex F in the proceedings. Following his investigations, Mr Sutarov concluded as follows:

1. “The area of most fire damage was inside the south-western quadrant of the warehouse.

2. Due to structural instability, all of the areas inside of the warehouse were not examined. However, most of the areas were visible and were documented from a distance.

3. The attending fire brigade officers observed multiple seats of fire, with no fuel load between them.

4. The samples collected from the scene were negative for the presence of ILR (“Ignitable liquid residues”). At this stage, there was insufficient physical evidence to determine the ignition source.

5. According to the scientific method, without determining the ignition source, the cause of the fire had to be classified as undetermined. However, if I take into account that Mr Zeng had left the premises four minutes before the fire was discovered, and that the attending fire brigade noted multiple seats of fire inside the warehouse when they first entered, as a result, a deliberate act could not be ruled out.”

61. In his evidence in chief, Mr Sutarov gave evidence that electrical fires or fires started by way of electrical ignition, are known to be slow developing fires.

62. Mr Sutarov was shown the photograph of the inside of the top of the battery charger (Ex C, pg 27 of 32) and he identified paint on the inside of the lid. He gave the following evidence:

“Q. Is there any significance to that paint being on there? How does that fit or does it not fit with the fire starting in the battery charger, the fact the paint's still there?

A. If the fire started in the battery charger, I would expect most of the paint to be consumed.

Q. So most of the paint from the inside of the charger?

A. Yes.

Q. Do you say that some of the paint might remain?

A. It depends on how long it was burning for.

Q. If the fire started in the battery charger, would that be the hottest part of the fire in the whole building, or not?

A. Initially.”

63. At [10.10] of his report, Mr Sutarov had referred to two copper conductors at the left edge of the footwell of the forklift. He was asked if the conductors were connected to power and power was flowing, was it possible to determine whether the conductor was connected at the time of the fire. He answered:

“A. Given that the conductor had shorted on the metal body, I could, I could see that there was an indicator that it was live, as in connected, and it had enough energy to short. However, it could have also melted, which I was, I can’t weigh one way or the other without conducting further examination.”

64. Mr Sutarov was cross-examined on his report. He had visited the premises three times. It was put to him that he was looking for factors that may have led to a conclusion that the fire was deliberately lit. He answered:

“A. No, I was gathering data.”

65. He was asked about fire damage in various parts of the premises by reference to the photographs annexed to his report. Mr Sutarov conceded that heat damage to the railing on the ground floor of the premises could have been caused by radiant heat coming from the major fire. He also conceded that in respect of three pallets shown in photographs in front of the railing, there was no evidence of any fuel on top of them. Mr Sutarov agreed that the predominant fire damage was to the western half of the warehouse where the packing machines, pallet racking and forklift and charger were located.

66. Mr Sutarov agreed that in respect of the spread of the fire, each fire had its own characteristics.

67. Mr Sutarov agreed that when the skylights in the building burnt, they could melt causing droplets of hot material to hit the ground. He also agreed that it was quite possible that such drop down material would ignite cardboard, and possibly timber, depending on its properties.

68. It was put to the witness that the pallet at the north-eastern quadrant could have been ignited as a result of drop down material, to which he answered:

“There was no skylight installed above those pallets.”

69. Mr Sutarov agreed that he had collected samples for analysis to check for the presence of an accelerant in the warehouse. No accelerant had been detected in any of the samples collected. He gave evidence that firelighters are predominantly made of kerosene, and with testing, kerosene could be detected as an accelerant if it was not consumed totally by the fire.

70. Mr Sutarov agreed that the plastic garbage bin at the north-eastern corner of the premises could have been burnt by radiant heat from the fire. He did not know how the pile of pallets next to it caught fire, however, he gave evidence that the pallets burnt as a result of radiant heat from the fire. He was challenged as follows:

“Q. Yes, and given the degree of fire within that warehouse is it not also possible in that warehouse that that pile of pallets could have ignited as a result of radiant heat?

A. Based on the physical evidence that I saw on the roof above, where I saw that, I observed there was still remains of insulation on the roof, it was inconsistent with radiant heat igniting those pallets.

Q. Did you see any evidence of anything that may have been placed on the pallets and set alight so as to burn the pallets?

A. No I did not.

Q. In fact, there does not appear to be, if we look at photograph 91, fire refuse, if I can use that term, anywhere near the pallets, other than the garbage bin, of course. If someone had stacked a pile of flammable material, combustible material, on or near the pallets and set it alight, there would be remnants of it visible, would there not?

A. Correct.

Q. Indeed, looking at the pallets, it would appear as though the pallets were burnt largely from the top to the bottom. The greater fire damage is on the top pallets rather than the bottom pallets, true?

A. Correct.

Q. For someone to have set them alight, you would have had to, I suggest, put material on top of the pallets and lit it, would you not?

A. It's possible to do it that way.

Q. But you didn't see any remnants of anything burnt on top of the pallets, true?

A. No they were severely fire damaged on top, no.

Q. Fire damage of the pallets themselves, yes? Not remnants of boxes or any other combustible material on top of the pallets, true?

A. I didn't observe any, no.

Q. So you're agreeing with me?

A. I do.”

71. In respect of the forklift charger, Mr Sutarov had conceded that even if there had been a fire inside the charger, there may still have been paint visible inside the top lid. He gave evidence that there was some flammable or combustible material inside the charger and that had the material inside it burnt, then the metal box would have got quite hot. He adhered to his previous opinion that there was insufficient physical evidence to make a conclusive determination to eliminate the charger as a potential cause of the fire.

72. Mr Sutarov gave evidence that by the time he inspected the premises, the forklift had been moved. He was not aware that the cables had been cut to move it. Further, the cable from the charger was missing and he was not aware of how long the missing cable was.

73. Mr Sutarov conceded that a short in the Anderson plug pin, attaching the charger to the forklift battery, could have caused the fire.

74. Mr Sutarov was of the opinion that the electrical box at the south-eastern corner of the premises was not an ignition point for the fire because the fire damage to the internal cables was not consistent with a fire developing there. The damage to the box came from outside it.

75. At [12.3] his report referred to possible electrical ignition sources for the fire. He was asked:

“Q. Potential accidental electrical ignition sources that were considered and could not be eliminated based on physical evidence inside the warehouse were”. We’ve already discussed the forklift and the forklift charger. I want to talk about these two packing machines. Now, there were two electrically driven machines within the warehouse, were there not?

A. Correct.

Q. Did you have the confidence to examine those items to form a view as to whether they played some part in the fire?

A. It was really fire damaged and no, I did not examine them in detail.

Q. So you still hold to your view that it could have been potential, accidental electrical ignition coming from those two packing machines that caused the first fire? True?

A. It is a possibility.

…

Q. I’m not being critical. I mean, you just couldn’t right? Had there been an accidental, electrical ignition source between that part of the warehouse, that’s the power socket part of the warehouse, and had there been under that area stored cardboard boxes, that could have been the cause of the fire, could it not?

A. It could.

Q. Paragraph [12.8] on page 17. “It was reported”, you start that paragraph with, “multiple isolated seats of fire”. I won’t read all of that out. “Unexplained, multiple seats of fire are an indicator of a deliberately set fire”, yes?

A. They are an indicator.

Q. An indicator. Assuming this witness information was correct, then I would form the opinion that the fire was probably, and you use that term, fairly and correctly, the result of deliberate. Yes?

A. Correct.

Q. But throughout your report, you do not discount the possibility of a number of other ways in which this warehouse fire could have started. True?

A. There was other possibilities, yes.”

76. Mr Sutarov was asked again about the damage to pallets situated at the north‑eastern corner of the building as follows:

“Q. I understood your answer to be as the radiant heat could not cause that fire because there was no damage to the insulation in that area?

A. What I meant by that was, if the fire travelled from west to east before it got to that north eastern corner of the warehouse, I would’ve expected more fire damage to the insulation beforehand and around the skylights, which is closer to the area of most damage.

Q. I’ve asked you questions about the pallets so I won’t go any further than that. You do accept that photograph 63, firstly, shows damage to the skylight, yes?

A. Yes.

Q. Which I suggest to you is quite near, in terms of the overall makeup of the warehouse, to the pallets underneath it? You don’t accept that, do you?

A. Not, it’s near but not directly above it.

Q. But need it be directly above it for there to be fall down?

A. To ignite the pallets?

Q. Yes.

A. If it’s, if it’s dripping on the concrete floor, then I kind of see how that would ignite the pallets from the top down.

Q. No, accept that the skylight is not directly above the pallets, is it possible that drops may have been moved in the overall circulation of air or wind within the warehouse to cause and to drop onto the pallets?

A. I haven’t had that experience.”

77. Finally, Mr Sutarov was cross-examined about the conductor cables and he agreed that the cables shown in photographs 128 had clearly been manually cut, as opposed to being destroyed by fire.

78. In re-examination, Mr Sutarov was again asked about the blue-coloured paint on the inside top lid of the battery charger. He was asked:

“Q. Assuming now that the lid throughout the fire remained on the battery charger, what are the chances of that paint or residue remaining like that had the fire originated in the battery charger?

A. I would tend to think that it all depends on the duration of the fire, but considering the majority of the combustible material inside the charger was consumed by fire, I would expect that most of the paint internally should have been consumed.”

79. A close-up photograph of the inside of the battery charger lid became Ex G.

Evidence of Mr Robert McKay

80. Mr Robert McKay is a forensic examiner in the area of suspected arson, with particular experience in relation to vehicle fires. There was no dispute as to his qualifications and expertise. A report prepared by him dated 3 September 2019 became Ex H. In his report, Mr McKay concluded that the battery charger was not the cause of the fire. Whilst there was evidence suggestive that the forklift may have been connected to the battery charger, the fact that one of the conductors had welded itself to the metal body of the forklift, was not in Mr McKay’s opinion due to a failure in the conductors from the battery charger to the forklift.

81. Mr McKay was also of the opinion that having regard to the timeline where the owner left the premises at 18:22:01 hours, and smoke was recorded coming from the premises at 18:25:51 hours, flames were recorded at 18:26:22 hours, and at 18:26:34 hours, flames were seen billowing out of the roof, a total of four minutes and 33 seconds after the owner had left the building, did not fit with the hypothesis that either the subject forklift or the battery charger it was allegedly connected to, had caused the fire.

82. Mr McKay was shown Ex G, which was a close-up of the photograph being figure 20 on p 15 of his report. He gave evidence that assuming the fire had originated in the battery charger, he would have expected no paint to have remained on that lid. He was asked to explain and gave the following evidence:

“A. Certainly. If the fire initiated or ignited within the battery charger, this is the part of the fire that’s going to be exposed to heat for the longest period of time. That exposure would cause the paint to be totally consumed during the fire and not leave, as can be seen in exhibit G, remains of wrinkled paint, because the paint goes through a situation where it will heat, char and then go to total consumption, leaving bare metal which is indicated by the rust seen in exhibit G.

Q. Is the fact that paint remains indicative to you that the fire so far as it concerned the charger lid was put out rather than burnt out - rather than allowed to burn out?

A. Could you rephrase that?

Q. Does the fact that the paint remains on the inside of the lid indicate to you that the fire was extinguished - that is, put out by the fire officers or otherwise - rather than allowed to simply burn out?

A. I don't know that I could actually draw a conclusion either way on that extinguishment of the fire. It could well be that what’s caused the external damage to the battery charger, that fuel has now ceased to exist and therefore there’s nothing compromising the remaining paint within the battery charger.

Q. Had the fire started inside the charger, the paint would have been gone?

A. I would expect to be looking at a complete clean burn on the interior of that surface as I've seen on many occasions with vehicle fires where the fire has initiated within the engine compartment. You may get paint on the upper or outside surface of the bonnet or the hood of the vehicle but the interior surface is completely devoid of any paint or trace of paint.”

83. In his report, Mr McKay had referred to an exemplar of the battery charger (p 8, fig 8 of Ex H). He gave evidence that the fuel load within the charger was as follows:

“A. Virtually none. The only fuel load in this would be small amounts of insulating material on the electrical conductors. Beyond that you’ve got metal components either aluminium or copper, electrical components, so there’s nothing in this charger save the small amount of insulation on the electrical conductors which would provide any fuel load.”

He gave further evidence to explain how the vents on the charger provided natural convection of air that flows into the charger from the bottom and flows out through the top.

84. Mr McKay was asked to expand on his opinion that the timeline did not fit with the hypothesis that the forklift or the battery charger had caused the fire. He gave the following evidence:

“A. Yes, certainly. Electrical fires are normally slow to propagate. First you have a short-circuit or some failure of an electrical component leading to the short-circuit and that will then cause ignitable material such as insulation on conductors to ignite and that acts as a catalyst or a wick to other ignitable items in the near area. That process can take anywhere from minutes to hours. What we’re talking here on the time line referred to in paragraphs 6 through 9, we’re talking four minutes and we've got a battery charger with no ignitable items in it save the small amount of insulation on conductors. For four minutes for this to occur it’s highly, highly improbable if not impossible.”

85. In cross-examination, Mr McKay was asked whether prior to completing his report he had been made familiar with the contents of the reports of other experts, to which he replied:

“No, I have not.”

86. He had not seen the reports of Mr Sutarov or Mr Schweickle. He agreed that inside the warehouse there was a lot of fuel, being cardboard boxes on shelving. He had not seen fires in the type of charger here. He did accept that there was some combustible or flammable material within the charger, being a small amount. He was asked:

“Q. So you don’t deny the possibility that some sort of electrical problem within the charger would cause a fire?

A. I believe that the charger – had there been an electrical fault, there would be insufficient fuel within the charger to ignite and propagate a fire.”

87. Mr McKay was cross-examined on the exemplar charger referred to in his report. He agreed that the length of cable from the battery lid to the Anderson plug was approximately 30 to 40 cms, whereas the extended length of cable came from the charger to the battery on the forklift. He was asked as follows:

“Q. Had there been a fire on that particular day in that charger, given the area of the warehouse, given the height of the ceiling of the warehouse, given the fact, I think, as you may have noticed, there were in the roof of the warehouse, exhaust vents, a number of these circular whirligig..(not transcribable)..?

A. Yes.

Q. Would it be the case, if there was this fire, that the first thing that anyone standing near it would notice is smoke?

A. Yes.

Q. If one was not standing near it, was in perhaps another part of the factory, that smoke could be emanating for some time, could it not?

A. No.

Q. No, why not?

A. Simply because with an electrical fire, whether that fire be caused by a short circuit or other mechanism, the insulation is consumed almost instantaneously, by the conductor, or the wire, heating up rapidly and it virtually lasts for, if not instantaneously, seconds before that insulation material is completely consumed and certainly, would not issue large volumes of flame.

…

Q. Is it possible, if a fire had started in that charger, that the contents within it would indeed have dropped to the floor quite quickly?

A. Yes.

Q. Therefore, the principal heat generated from that fire would come out of that front vent would it not?

A. No, airflow. There would be very little heat dissipation through that lower vent featured in figure 17, again, because of the thermal dynamics of fire and it would rise to the upper vent on the other side and dissipate that way.

Q. What if the upper vent was faced against a brick wall?

A. Bricks aren't combustible.

Q. I'm not suggesting the fire was that..(not transcribable).. But the heat, effectively if it was restricted from going through that top vent, may go through the bottom one mightn't it?

A. It would be doubtful and if it, if it was the case, hypothetically, then we would have a retention of heat within the battery charger and that would propagate further destruction of the paint on the inside of the lid. So--

Q. Let's assume that the fire starts that way, that the contents of the chargers fall to the bottom of the container, there is some flame or heat coming out of the front part of it, and as you say, very shortly thereafter the contents simply have no further fuel from which to burn?

A. Correct.

Q. There would, however, possibly have been heat and/or flames emanating from the front of the charger whilst it was still burning, true?

A. No, I don't believe so. And the reason I don't is that by the time the material was sufficiently degraded to fall to the bottom of the charger, I will put it to you that most of the ignitable items or the - in that material would have been totally consumed, as would the aluminium on the fins and so on. So, the, any heat generated by the remains of the inside of that charger would have been done, dissipated and no longer producing.

Q. That was a clumsy question, I'll put it to you another way. A fire starts within the charger and it smoulders, if that's the right way of putting, for some little while. Then, it engulfs the contents and the contents fall to the bottom of the charger whilst there is still a fire within it. All right?

A. Mm.

Q. Now, (a), assuming that the charger is sitting against a brick wall, if there were flames at the bottom whilst there was still fuel within the charger to burn, those flames may have emanated from the front bottom vent.

A. If we're talking hypothetically and working on that, that we may have flame in the bottom, which I doubt, in fact I'd say not, then we need a way of transferring that flame from the inside of the charger to an ignitable item on the outside of the charger. And the only way that would happen is for that charger to have cardboard boxes piled around it, I mean, in contact and close proximity. If it is not, the extent of the hypothetical fire would not travel across a concrete floor without the aid of some form of material to burn.”

88. Mr McKay was further cross-examined as follows:

“Q. Assuming that it had been, it is possible that there may have been an ignition point within the charger and a fire of those items adjacent to it?

A. I don't believe so because, again, once we've got the contents of the charger in the bottom, it is spent, there is nothing, the charger has nothing to burn other than the insulating materials, which would be totally gone by the time the contents of that charger reaches the bottom of the charger.

Q. One of the reasons you're suggesting, or correct me if I'm wrong, that the fire didn't start within the charger, is the paint on the inside roof cover?

A. Yes.

Q. But if a fire smouldered for some time and the contents effectively dropped to the bottom of the container, any flames would not, really, be touching upon, or impacting upon the cover?

A. You still have the heat plume of whatever's burning and I go back to the fact that there is nothing within that charger, save a very small amount of insulating materials, which would ignite. And heat will rise, and regardless of whether there's visible flame or smouldering, you still have a generation of heat energy and that heat energy will, if, if a smouldering situation continues, you will get an increase of heat energy, even though you've got vents, and that paint will burn. If I might go back to it, if we had that and we, we had a total, a fire in the bottom of the charger, we would have seen, or had, a very clear demarcation line within the paint on the inside. And I'm not seeing this.”

89. Mr McKay conceded that some paint was more fire retardant than others. He gave this evidence:

“Q. Would one not, perhaps, assume that the type of paint that would be used internally for this electrical component would have within it some form of fire retardation?

A. That assumption might be drawn, but if that was the case, then we should have far more paint on the inside of that charger lid, because there are areas where we've had total consumption featured by the visible rust, and that, I will put it to you, is from a heat source external to the charger, rather than within that charger.

Q. What are you saying, that there would be a uniform pattern if the fire was inside?

A. If the fire was inside I should not be seeing any paint at all. And if, if--

Q. Fire retardant or otherwise?

A. --if, if it was a fire retardant material, then I shouldn't be seeing - I'm, I'm seeing parts and if we, if we could refer back to the previous exhibit, which shows a close up of this lid, if you look at that exhibit you can actually see clear wrinkling of the paint. Now that, that's a normal process that I've seen on numerous occasions within motor vehicle fires. If we had fire retardant paint, the areas of rust shouldn't be rust, we should still have some evidence of paint left there.”

90. Mr McKay denied that there could be an ignition point within the charger for this fire, nor could there be an electrical fault within the forklift which caused the fire. He conceded that there was some evidence of some electrical failure activity on the cables to the forklift battery, but denied they could be responsible for a conflagration unless cardboard boxes were piled all over the forklift.

91. Mr McKay conceded that there may have been a short in the Anderson plug, but qualified his answer that it would need something to ignite and would not continue to burn beyond “milliseconds to seconds”. He agreed that in the ordinary course, a degree of cabling from the charger to the forklift would be on the floor. He was then asked:

“Q. If on that floor and underneath that cabling there were cardboard boxes or some other sort of flammable material, and those cables failed, or the insulation on them failed, that could cause an ignition point, could it not?

A. It could.”

92. There was no re-examination.

The evidence of Yuanqi Hong

93. Ms Hong was employed as the property manager of real estate by a company known as Yoogalu Pty Limited. It was the owner of Unit 6/164 Adderley Street West, at Auburn. She gave evidence that a three year lease of the premises to Rainbow Sydney commenced on 1 November 2018 and was to terminate on 31 October 2021. The total annual payment due by the tenant was $115,420.00 plus GST.

94. Following an adjustment to the lease start date, the monthly rent payable was $9,618.38, following an initial deposit paid by Rainbow Sydney of $10,222.44, paid on 30 November 2018. Thereafter, rent was due on the first day of each month from 1 December 2018.

95. Ms Hong gave evidence that a bank guarantee from Rainbow Sydney was provided by the Commonwealth Bank of Australia in the sum of $30,667.32 on 18 December 2018.

93. No rent was paid by Rainbow Sydney and on 28 March 2019, an email was sent seeking arrears of rent in the sum of $21,518.33. Apart from the guarantee monies, the only sum paid by Rainbow Sydney was the deposit of $10,222.44. Ms Hong gave evidence that on checking the records, there had been no complaint made with respect to that property about electricity issues, either from Rainbow Sydney or any other tenant.

94. In cross-examination, Ms Hong gave evidence that it was standard procedure for her company to follow up non-payment of rent on the 15th of every month. Emails were sent in the English language. Following payment of the bank guarantee, the outstanding balance due to the landlord was $2,537.13.

95. There was no re-examination.

Evidence of Mr Yong Yang

99. Mr Yang gave evidence that he was interviewed by the accused and thereafter started work for Rainbow Sydney in November 2018. He started in IT, and then got his forklift licence and started forklift driving. He commenced on $15 per hour, but that was increased to $18 per hour when he obtained his forklift licence. When asked who were the people he knew to be involved in Rainbow Sydney, he identified the accused, a Mr Lin, a person called Arthur from Hong Kong, and another man by the name of Chao Li.

100. Mr Yang gave evidence that he did not ever charge the forklift battery, but had not heard of any problem with charging the forklift. Nor had he heard of any problem with the electrical circuitry or of electrical problems at the warehouse. He worked 25-30 hours per week, and had notified the forklift company when there was a problem with the tyres.

101. Mr Yang gave a description of the warehouse as shown in photographs. He gave evidence that rubbish would be put into a bin and cardboard boxes would be folded and put in the corner of the warehouse. No rubbish was left around the packing machine or the pallet shelving.

102. Two photographs of the interior of the warehouse became Ex J.

103. Exhibit A, the CCTV footage of the premises at 6.36pm on 18 April 2019 was played and Mr Yang identified the two persons on the warehouse floor as himself and Chao Li.

104. Mr Yang was asked about the CCTV and stated that the hard drive was in the upstairs office of Mr Lin. He denied turning off the CCTV on 18 April, or at any other time. He left the premises after 7pm on 18 April 2019. He was due to return on Tuesday 23 April 2019, but received a phone call from Chao Li the night before asking him not to attend work. Earlier in the night he heard from the accused, who rang him to tell him to clean the premises the next day and welcome the new team. He was later asked to meet the accused at the premises on 29 April, and met him at the Auburn railway station and walked with him to the warehouse. The accused told him there had been a fire accident, and that there will be someone from the insurer to come and ask questions. The accused said the following to him:

“I don’t know what the company looks like now and if the machines are still fine.

The fire was quite big.

I went to the office that day to do some paperwork.

Before I left I put the forklift on charge because we will use it the next day.

Later that day I got a phone call from the property to say there was a fire.

I went back to the office with Chao and Mr Lin.

And we couldn’t get any closer.

This will be the first time I’ve gone back since the fire.

I hope the machines are still good.

I hope it has not been damaged by the water.

So we can still use it.

We can find a new warehouse.

There were a lot of cardboard boxes, so once they get touched with fire, the fire will be very big.

There were no cardboard around the machines, so there is a good chance the machines are still good.

It might be the forklift that caused the fire.

And the warehouse was pretty old, so there might be some issues with the wires.”

105. Mr Yang gave evidence that when they arrived at the warehouse, they met a man from the insurance company. The accused told him that he was looking for a new warehouse. He gave evidence that he never heard any mention of Rainbow Sydney looking for a new warehouse before the fire. In the lead-up to the fire, he gave evidence that there was no particular change in the stock levels in the factory, and there was no change in the amount of work being performed at the warehouse in the days and weeks leading up to the fire.

106. Mr Yang gave evidence that he was not paid for the last month of work he did for Rainbow Sydney. He was paid by the month, but there had been a delay of one and half months until he was paid on 15 March 2019. When he asked the accused why he wasn’t paid, the accused told him:

“The last payment was not so long ago and I’ll pay you together next month.”

He was now owed $2,844.00.

107. Mr Yang gave evidence that before he spoke to the insurance company representative about the fire, the accused,

“asked me not to say too much to the insurance company and to tell them that I had arrangements later on so as to reduce the length of the meeting from 3 hours to 1 and half hours and to remember what I would tell them and to tell him what I said. He also asked me to tell them that I commenced work in February 2019.”

108. Mr Yang also gave evidence that the accused told him to tell the insurance company that they had always been very busy. Before the meeting on 22 May 2019 with the insurance company, he met the accused at Central railway station.

109. Mr Yang gave evidence that he told Ms Russell, the insurance investigator, the truth. During his interview with Ms Russell, he received text messages from the accused asking him to come out quickly and asking why it was taking so long.

110. After the meeting, he met with the accused, who asked him to tell him what was said during the meeting and to send messages to him so he could know. The accused then gave him $100 for lunch money.

111. Mr Yang also gave evidence that he had a text conversation with the accused about the fact that he wasn’t required to give a police statement. He told the accused that he hoped the accused would pay him the wages as soon as possible and then he will be going to do the police statement. The accused had replied:

“Don’t tell them too much. It’s been so long. There’s a lot of things that you do not remember. There are many things that only the owner would know and the more you say, the more trouble you get yourself in. Many documents, insurance related documents were done by you, so you would get yourself into trouble too.”

112. Mr Yang gave his statement to the police on 4 July 2019. He was contacted by the accused as he was giving that statement. The accused said:

“Don’t tell them too much. Say as little as possible and remember what you said and tell me what you said to them.”

113. In cross-examination, Mr Yang gave evidence that he understood the company would receive goods, for example, baby formula, and do re-packaging and return the products to the companies. There were roughly 40 or 50 boxes on each pallet and six tins of formula in each box. He was asked, when he started and was doing some Excel work or IT work, that the company was operating and making a profit. He answered, “I don’t think so”.

114. Mr Yang was asked what Mr Lin’s role was in the company and answered:

“He didn’t do any particular work but I believe him to be an owner of the business.”

He gave evidence that he saw the accused making reports to Mr Lin. That involved the accused telling Mr Lin about the business.

115. Before the forklift arrived, the work in the warehouse was done manually by hand. However, they had not done any packaging prior to the arrival of the machines. Mr Yang gave evidence that the packaging machine arrived soon after he commenced work. He played no part in ordering or doing the paperwork for the pallets. Before the forklift arrived, they had borrowed a forklift from the warehouse next door.

116. Mr Yang gave evidence that he last spoke to Chao Li about two months after the fire. He did not know what Mr Li was doing then or whether he had a job.

117. Mr Yang gave evidence that he did not notice any significant growth in the business. It was suggested to him that business was improving in March and April and a lot more stock was coming in regularly. He answered, “Same as before”. A truck would arrive generally once a day but sometimes didn’t come. He agreed that sometimes they would have to do overtime because a lot of product would come in. That would be once a week or once a fortnight. It would take between half an hour and one hour to take a pallet from the truck, do all the work needed and put it back on the truck. Once they were emptied, the labelled boxes would be flattened and left in the corners of the premises. They would be there for months and months. He agreed that there may be hundreds or thousands of empty cardboard boxes stacked in the corners. He was asked:

“Q. Were they stacked so much that they may have been touching the charger?

A. We did pay attention to avoiding them from touching, prevent them from touching the charger.

Q. Did you ever ask Mr Zeng what he intended to do with all these boxes?

A. He said he would get other companies to recycle them. He would sell them to the recycling companies.

Q. Did that ever happen that you saw?

A. I don’t remember seeing that.”

118. Mr Yang gave evidence that the accused had mentioned to him that he was hoping to get an export licence for milk products to China. He had a hope to develop the business so he could sell directly into China. He had told Mr Yang that a month or two before the fire.

119. Mr Yang gave evidence that he had nothing to do with people paying Rainbow or Rainbow paying people, and did none of the bookkeeping work on the computer.

120. Mr Yang gave evidence that he did not remember where the forklift was when he left the warehouse on the evening of 18 April 2019. He gave evidence that at 7.15pm on 22 April 2019 he received a WeChat message from the accused which said:

“10.30 tomorrow, clean everywhere to welcome the new team.”

121. When asked what was meant by “to welcome the new team”, Mr Yang gave evidence that the accused mentioned that people from another company will be joining us in the office. He believed they were partners and that they would work together with Rainbow Sydney. He gave further evidence that he did not know where Chao Li lives at the moment.

122. On 29 April 2019, Mr Yang gave evidence that the accused asked him to set up an Excel spreadsheet for him. He entered that onto his computer at home and sent it to the accused.

123. In respect of the evidence Mr Yang gave about his conversation with the accused prior to speaking to the insurance company, he gave the following evidence:

“Q. He didn’t tell you then to tell any lies to the insurance company, did he?

A. He did.

Q. He told you to tell lies when he WeChatted you on 9 May, did he?

A. He told me that when we met in the morning.

Q. On 22 May you’re talking about?

A. The day where we met the lady.

Q. Before that, he’d never said to you that you had to make up any stories or tell any lies to the insurance company, true?

A. He did ask me to tell them that I’d commenced work in February.

Q. Did you ask him why he wanted to tell them that?

A. I don’t remember.

Q. See by the time you went to the insurance company, Mr Zeng owed you nearly $3,000 in unpaid wages, didn’t he?

A. Yes.

Q. You were not happy about that were you?

A. I was not happy indeed.

Q. Did you tell the insurance company that you only started working in February?

A. I told the insurance company that I had commenced work in November and that Rui Zeng had told me to tell them that I commenced work in February.”

124. Mr Yang gave the following evidence:

“Q. You knew that you were not paying tax on the money you were making at Rainbow, true?

A. He promised me to pay the taxes for me.

Q. That is untrue. He never said that to you at all?

A. I did send him my tax file number and the other relevant documents on his request.”

125. Mr Yang gave evidence that on the day he spoke to the insurance company, the accused had handed him $100 for lunch. He gave the following evidence:

“Q. You said to him that you wanted $50 an hour for every hour you were there, didn’t you?

A. I didn’t ask him for money. He just gave it to me.”

126. In respect of the WeChat messages sent by the accused whilst Mr Yang was speaking to the police, he was asked about [14] of his second statement, where he stated:

“He’s asking me not to say too much and that I’ve forgotten things and that I don’t know much about the company.”

127. When asked whether the accused said those things, Mr Yang agreed. He gave the following evidence:

“Q. At that time, you knew very little about the company didn’t you?

A. I did know quite a lot about the company but he didn’t want me to tell them too much.

Q. Did you know anything about the insurance with the company?

A. No.

Q. Did you know anything about the bookkeeping of the company?

A. No.

Q. Did you know anything about how much the company made?

A. I have a rough estimation but I don’t know the exact figure.

Q. How did you calculate a rough estimation?

A. I knew at the time how many boxes were coming in each day and I knew the unit for each box. With those two, I could do a calculation.”

128. Mr Yang gave evidence that he had met one of the customers of Rainbow once, and another customer on several occasions. He did not discuss finances with them, nor did he discuss finances with Mr Lin. He denied making up any of his evidence because the accused still owed him money. Finally, Mr Yang gave evidence that he had nothing to do with the exporting of any of the material from Australia to China.

129. In re-examination, Mr Yang was asked about the cardboard boxes in the corner of the warehouse premises. They could not be seen in Ex A on 18 April 2019 at 18:36:35 hours, because they were blocked from view by the pallets stacked on the racking.

130. Mr Yang gave further evidence that he was told by the accused that there were new partners coming into the business, several days before the fire accident.

Evidence of Ms Rong Cai

131. Ms Cai was employed by Eternity Insurance and Financial Services in May 2019. That was a business of an insurance broker. She had examined the records of the business and gave evidence that Rainbow Sydney had two separate insurance policies for its business. The first was public liability insurance through AIG, with effect from 22 November 2018, with a cover of $20,000,000. There was also third party property cover for $250,000.

132. Ms Cai gave evidence that on 16 April 2019 a policy was issued by CGU, covering $250,000 for contents and $100,000 for stock. On 17 April 2019, business interruption cover was added to the policy for 12 months, gross profit of $180,000. Two emails sent from the salesman on 16 and 17 April 2019 became Ex K.

133. Ms Cai received a phone call on 23 April 2019 from the accused. He said:

“We had a fire accident last week, I want to make a claim.

The damage is quite serious, what should we do at this moment.”

134. Ms Cai told him:

“For the fire damage lodgement, we need to get the information and the documents from the client first.”

She sent the accused an email and told him he needed a profit and loss statement from his tax return or accountant.

135. On 24 April 2019 she received an email back from Rainbow Sydney attaching a profit and loss statement, listing a quarterly net profit of $25,720.83.

136. Ms Cai gave evidence that she did not think it was an extensive profit and loss statement, as it was only for one quarter. On 25 April she sent emails to AIG and CGU making claims on behalf of Rainbow Sydney. The following documents were tendered:

Ex L – Certificate of Currency of AIG policy

Ex M – Certificate of Currency of CGU policy

Ex N – Email from Emma Cai to Rainbow Sydney dated 23 April 2019

Ex O – Email from Emma Cai to CGU

Ex P – Email from Emma Cai to Rainbow Sydney, together with attached documents dated 26 April 2019

Ex Q – Email from accused to Emma Cai, together with attached documents dated 1 May 2019

137. In cross-examination, Ms Cai gave evidence that she was unaware of any advice that the sales person may have given to the accused about either of the policies issued. Her first involvement came on 23 April 2019.

138. Ms Cai was asked about the claim for stock of $146,000. She was asked whether she sought documents to substantiate that figure, and gave evidence that it was supplied by the client for the purpose of lodging the claim.

139. Ms Cai gave further evidence that she arranged for an interview between the accused and the loss adjuster, NKG Management Services’ representative. That interview took place at her office, however, she did not participate.

140. There was no re-examination.

Evidence of Huang Zhang

141. Ms Zhang gave evidence that she had first met the accused, who she knew by the name of Rain, in October 2018. She had responded to an advertisement with respect to a business opportunity on a Chinese app called “Sydney today”. She contacted the accused by mobile phone and then transitioned their dialogue to WeChat. They then had a meeting in Eastwood where they discussed the nature of the accused’s business. The accused told her he was selling 10%, maximum 20% of the shares in the business and she told him that she wanted 40%. The accused had told her that the company was worth $200,000 and had said:

“If you want 40%, I want $120,000.”

142. Ms Zhang gave evidence that he said that because he thought the business was worth a lot more. She agreed to put in $120,000 and they met at an accountant’s office in Ashfield, AC Professional Accounting. She agreed to become a director of the business and on 18 October 2018 she transferred $20,000 into the accused’s ANZ bank account.

143. Ms Zhang gave evidence that the accused asked her to transfer money to Harvey Norman to secure the warehouse rent and on 19 October 2018 she paid $10,222.44 into Harvey Norman’s account. On 22 October 2018 she transferred a further $20,000 into the accused’s ANZ bank account, and on 7 November 2018 she transferred $20,000 again into the accused’s personal bank account. Exhibit R was a bundle of receipts in respect of those four payments. Exhibit S was the ANZ bank statements of Ms Zhang.

144. Ms Zhang gave evidence that the accused set up a CBA account in the name of Rainbow Sydney. By that time, she had transferred $70,222.44 in total to him. At that time, she decided she no longer wanted to be a shareholder and director, and gave evidence that she wanted to “withdraw”. When asked why, she said:

“Because I found out that it was not like what he had described. His experiences in such and such were different as what he had told me.”

145. Ms Zhang gave evidence that she met the accused at Caringbah in November 2018 and asked him to transfer to her the $70,222.44. He asked her why she wanted to give up, and she said:

“Sorry because my money cannot arrive.”

146. Ms Zhang was asked whether there was a problem with her getting money, and she answered:

“No there was no problem. I just felt something was not quite right so I wanted to stop the investment. I also tried to find out what he was like.”

147. On 15 November 2018, Ms Zhang gave evidence that she went with the accused back to AC Professional Accounting at Ashfield. On that day, she transferred 30 shares to the accused and retained 10% of the shareholding. She also resigned as director and secretary of Rainbow Sydney. Exhibit T was a bundle of documents comprising the transfer of shares and letter of resignation dated 15 November 2018, together with documents filed with ASIC.

148. In cross-examination, Ms Zhang denied that she was a successful business woman in October 2018, but conceded that she did have experience in business. She owned a massage parlour and a brothel, and employed about five full-time employees and some part-timers. She was asked about deposits of substantial sums of money into her own bank account and described them “as a big sum of money or a small sum, depending on your perspective.”

149. Ms Zhang gave evidence that when she read the advertisement she was attracted to it as a new business opportunity. It was the only business she knew that would use machines to repackage milk products. She had visited quite a few gift shops to purchase milk products to send back to China and was familiar with the way they packaged the products. She was aware that a lot of people in Australia were buying and packaging milk products and sending it to China at the time. She did that, but denied doing it professionally. She just bought it for friends. She received no commission for doing so, but did receive the cost of the purchases.

6. I find that on 23 April 2019 the accused’s mobile phone was seized by the police.

7. I find that on the same day, namely 23 April 2019, the contents of that phone were wiped by the accused accessing his Apple account. As police, following protocol, placed the phone on aeroplane mode upon its seizure, the phone was wiped when police subsequently connected it to the internet upon examination on 22 October 2019. In those circumstances a clear inference arises that it was the accused who wiped the phone so as to deprive police of the opportunity to obtain further evidence against him in their investigation. It is the only rational inference to be drawn from the evidence.

8. I find that on 25 April 2019 the accused submitted an insurance claim in the sum of $146,000 for stock lost in the fire, and the sum of $263,000 for equipment (Ex Q).

Findings based on the expert and other evidence

351. I accept the evidence of Mr Wayne Schweickle that the most probable circumstances of this fire were that there were multiple points of ignition.

352. I further accept the opinions of Mr Sutarov, that the area of most fire damage was inside the south-western quadrant of the warehouse. I further accept his opinion that there was insufficient physical evidence to determine the ignition source, however, given the attending fire brigade noted multiple seats of fire within the warehouse, and given the timeline involved, a deliberate act could not be ruled out.

353. I accept the evidence of Mr Mario Conti that the Nichiyu forklift was sold to Rainbow Sydney on 22 January 2019. At the time of that sale, it had a low usage for a 2004 model and was refurbished prior to the sale. Testing prior to sale included checking the battery and charger and safety switches, which demonstrated there were no problems with either the forklift, the battery or the charger.

354. I accept the evidence of Mr Conti that the forklift was tested on 25 January 2019 when a fault was found with the bonnet latch. A further complaint was received on 17 April 2019 about the forklift making a loud noise. A technician attended the premises and established that the rear tyres of the forklift were to blame for that noise.

355. I accept the evidence of Mr Conti that the possibility of a fire resulting from a forklift or charger shorting in the first 10 minutes of charging was virtually impossible. I further accept that the charger was designed with fuses which were designed to blow in the event of an electrical failure, together with the thermal protection circuit referred to by Mr Lualhati.

356. I further accept the evidence of Mr Gary Hodge who had lengthy experience in the forklift industry. I accept his evidence that when a forklift was not operating, it was completely isolated from its power source.

357. I also accept the evidence of Mr Greg Lualhati who was experienced in the trade of electronic services for over 30 years. I accept his evidence that a damaged Anderson plug may arc, causing sparks, however, I further accept his evidence that the charger was protected from damage by a fuse which would blow out and cut the circuit, as well as a thermal protection circuit. He provided a circuit diagram which became Ex E. I accept that his employer had no recorded complaint from Rainbow Sydney about this charger and there were no factory recalls on chargers.

358. Mr Robert McKay was a forensic examiner in the area of suspected arson, with particular experience in relation to vehicle fires. I accept his evidence, having regard to the timeline where the accused left the premises at 6.22pm, and smoke was seen coming out of the premises at 6.25pm, together with flames recorded at 6.26pm. That timeline did not fit the hypothesis that the subject forklift or battery charger that it was connected to allegedly had caused the fire. I accept his evidence, which was not challenged, that electrical fires are normally slow to propagate.

The accused’s police interviews

359. The accused was interviewed by police the day after the fire on 23 April 2019. The transcript of that interview became Ex AC. When asked about the fire insurance policy taken out on 16 April, the accused said:

“’Cause I’ve signed a contract with the overseas company to purchasing and selling formula. They suggest me to take more, more coverage of the, of the stock, because the formula that they’re going to buy will be kept in my warehouse, so they, they suggest me to increase the value of the, the, the, the goods that will be purchased. That’s why I, I, I went talked to the broker and the broker suggest me to buy this.”

360. The accused was asked about the CCTV in the warehouse as follows:

“Q. When was the last time you actually checked it was working?

A. Should be before the holiday.

Q. Have you checked it was working?

A. I didn’t check that.

Q. Okay. Who has access to the actual CCTV system?

A. Me, and there’s a tv in the office area and you can see from the tv.

Q. Okay. So would anyone switch that CCTV system off?

A. Not sure. I don’t think it, it was switched off.”

361. When told that the CCTV hard drive had been switched off at 6.30pm on 18 April 2019, the accused said:

“A. I don’t know, I don’t know the reason why, why they would switch it off, but we were still, but we were still working on the 19th.”

362. The accused was asked about repairs required to the forklift on 17 April 2019 because of a loud noise coming from the machine when driving. He told police that when the forklift was checked, there was something wrong with the tyres. However, there had been no electrical fault with charging the forklift in the past.

363. When asked by police whether he owed any money to any person or business, the accused answered:

“At, at this point in time, no.”

364. When asked whether he had any outstanding rent, he said:

“A. I’m about to pay this month’s rent.”

However, when asked how much that was the accused said:

“A. I haven’t received the bill yet.”

365. The accused did tell the police that he had cash flow problems with the business. When asked whether he had any problems affording things for his business, the accused answered:

“A. My business problem in running short of money. My, my clients are just coming in endlessly. Before the holiday, we have customers or clients coming from Newcastle who wants to join us, and we have clients from overseas wanting to join us, ‘cause packaging is a new industry. It’s emerging industry, it can save a lot of stuff. My equipment are, are very advanced and imported from China, and this is the paperwork of purchasing the equipment, the machines.”

366. The accused told police that Rui Lin had 30% of the business, Huong Zhang owned 10% and he owned 60%.

367. When asked how much stock was in the warehouse, the accused answered:

“A. I’m no idea at all, ‘cause I haven’t done the, I haven’t … that’s why I, I always hope that I could go inside last night to have, have a, have a look, how much that, like, how big the damage was. The value is between $50,000 and $200,000.”

368. When asked whether it was normal practice to turn the CCTV off for holidays, the accused answered:

“A. No. It shouldn’t be switched off, unless, well, there’s no way. Not possible to switch it off. And we didn’t switch it off in New Year and Lunar New Year and the 1st of January, the New Year, we didn’t switch off. But we do the thorough cleaning up before and after the holiday. May, maybe it was switched off during the cleaning up by accident, but I’m not sure, maybe. And we clean up everything before and after the break.”

369. Finally, when asked by police:

“Q. Can you tell me how the fire started?

A. I didn’t know about the fire. If I take a guess, well, maybe it’s something to do with the old cable or the, the, forklift, because nothing was unusual before I left.”

370. The accused denied lighting the fire, and when asked whether he knew who may have lit the fire, he answered:

“A. Don’t know. Shouldn’t be anyone. There was no source of fire before I left.”

371. The accused underwent a further ERISP interview on 15 August 2019. The recording of that interview became Ex AJ and the transcript was marked as MFI#4. When told by police that they were going to ask him questions about the allegation of an arson on 22 April 2019 at the warehouse, and that it was done by him with the intention of gaining an advantage, the accused said, “I don’t agree.”

372. The accused told the police that two businesses had invested in Rainbow Sydney more than $100,000 combined. He could not name those businesses, but told police that a person named Jennifer had invested between $70,000 and $80,000 for 10% of the business. The accused told police that the second company had invested greater than $50,000, but less than $150,000. The representative of that business was Mr Lin. The accused denied that Mr Lin had an office at the warehouse premises.

373. The accused told police that as at 22 April 2019, Rainbow Sydney had around $100 in its ANZ bank account. He denied having any offshore account, but could not remember the balance of Rainbow Sydney’s CBA account as at the date of the fire.

374. The accused told police that since the start of its operation, Rainbow Sydney had received about $200,000. At the time of the interview, he had no cash because in the past four months he had spent all of that money and had ordered new machines, waiting for the factory to be resumed. The accused told police there was no cash in his premises on the 1st of May 2019 when police executed a search warrant there because he took the money with him that day. It was more than $100,000 which he had taken from the company. He told police he needed “cash transaction” and when asked whether the money would not have been safer in the bank, he answered:

“A. But we needed cash to do the transactions because the bank only allowed maximum of, uh, $10,000 withdrawal. When we purchase 60 cartons of formula that would need $10,000. Because the, because the bank does not allow me to withdraw big amount of cash, therefore I had to have um big amount of cash with me when we, when we do, um, uh, the purchase.”

375. When asked what he did in his free time, the accused answered:

“A. Um, free time, uh, sometimes just had a walk around. I usually stayed at home and sometimes, uh, go, went out to walk, to have a walk.”

The accused made no mention to police of going to the Star Casino.

376. The accused was asked further questions about the two insurance policies taken out by him. He was asked:

“Q. At what point did you realise you needed a second policy?

A. Because in May I was going to, uh, increase my business and to add express delivery into my business. As I, as I said in the morning, it was still, uh, under application, uh, so that I could expressly send directly to China. Um, um, and also as I said in the morning, when the goods were collected, um, the warehouse was, uh, usually left, uh, no goods, only the machines. So in May the business, uh, the express delivery business will be added, will be add, would be added. Therefore the goods would be stored in the warehouse. Those goods are very expensive, therefore I need insurance to ensure these goods were safe. Therefore I also consulted a consultant as to how to ensure or how to make sure the safety, uh, of the goods. Uh, in April my clients or customers already know that I was going to do the express delivery, uh, business. That, that, that was the reason why I took up the second insurance because, uh, in warehouse I would, uh, store, uh, expensive goods and then, then the insurance was taken out, uh, my, uh, express delivery business started in May, would, would start in May. But now everything is, um, is, um, ruined.”

377. The accused told police that prior to the fire he had informed the forklift company to come over and check the machine and that an inspection was to take place on 23 April 2019. He told police that Daniel Yang had spoken to the forklift company about the machine making an unusual noise when it was charging. He told police he had heard the noise himself.

378. When asked whether he had a reason why the CCTV hard drive was turned off, the accused answered:

“A. So I explained that on the previous occasion, if that was switched off it might have been, um, switched off when, um, the cleaning was in progress. But it usually, usually its, it, its, it, it, it was impossible. We never, uh, switch it off.”

379. The accused was asked about the office work he did at the premises on 22 April 2019. He was asked:

Q: And how do you get the data, how do you gather the data?

A. And from handwriting and also from mobile phone as well as from the computer.

Q. Did you use the computer?

A. Yes.

Q. And did you use the computer in number 1?

A. Yeah. I think so.

Q. Did you use the computer in number 2?

A. Yes.”

380. The accused was asked whether he had paid any rent to date. He answered “yes”, and when asked how much he had paid, said:

“A. So, so, so far the receipt, um, receipts have shown $40,000 paid.”

381. The accused was asked about the firelighters found at his premises on 1 May 2019. When asked what was the purpose of having firelighters, he said, “For barbecue”. He told police he had forgotten how many times he had purchased firelighters, but that he had barbecues “occasionally, when I had time”. He had barbecues with friends, who he could not name.

382. When asked whether he ever took firelighters to the warehouse, the accused answered:

“A. Yeah. I, I’m not sure whether I have or not. Um, I, I, I’m not sure. ‘Cause it was, uh, rarely used, other than gathering, um, there was not other use.”

383. The accused was asked about the withdrawal of $50,000 on 17 April 2019 from Rainbow Sydney’s CBA account. He told police he took the money out of the account and it was for “cash flow cash”. He gave the following evidence:

“Q. Why do you need to keep the cash for business?

A. I explain that in the morning. Um, in the morning if I withdraw the money I could only withdraw, uh, $10,000. Uh, because at the end of, uh, April … I, I, I, at the end of April I would need a big amount of cash to pay for the devi, the, machines to pay … pay for the express um, delivery business.”

384. The accused denied using the $50,000 he withdrew that day for personal reasons. The police then asked about the deposit of $68,000 from HBW on 16 April. When asked who were HBW, the accused answered, “I dunno”. He was then asked:

“Q. You don’t know who HBW are? They’ve given you $68,000.

A. So there’s a lot of business transactions, um, I, I don’t, or I can’t remember which transaction is through which company. And also I don’t know each companies, I don’t know each company’s English name. Um, we usually communicate in Chinese.”

385. From a still photograph taken from the CCTV footage on 18 April 2019, the accused identified Mr Lin. The accused was asked:

Q. Does Lin have any operation of the business?

A. No, he doesn’t operate, he doesn’t have operation.

Q. Does he use any of the computers?

A. Occasionally. Uh, he doesn’t know how to use the computer but occasionally he asked me, uh, to help.

Q. Why was he there on that day? That’s the 18th the last day of operation?

A. He occasionally … he occasionally came over to have a chat and have a tea.

Q. Did he do any of the cleaning that day?

A. I don’t know.”

386. The police asked the accused about the download of his mobile phone that was seized on 23 April, and the google translation concerning Essential brand firelighters. At first, the accused stated that that translation should have been done on the 24th. When asked why he required the translation, he gave the following evidence:

“A. Because, because I, I was going to do a barbecue at home so I did not know what that was.

Q. But you told us you do barbecues in general?

A. But I did not know what was included. I, so I did not know what was contained in this box, so therefore I need to google to see what it was, uh, uh, enclosed inside … I, I was planning to do barbecue, therefore I purchased that on the 24th.”

387. The accused told the police he had bought firelighters on the 24th because he couldn’t find the firelighters he had purchased on the 22nd of April. He was asked:

“Q. Did you take the firelighters you purchased on the 22nd into your warehouse?

A. I took it home, at home. So is not in the warehouse.”

388. The accused told police there was something he remembered about the firelighters. He stated:

“A. We had a holiday, uh, from the 19th, uh, there was nothing in between so I, I was prepared to go out with friends to have a barbecue on the 23rd or the 24th of, uh, so when I had nothing to do I would usually go to the supermarket. So when I, when I wander around, uh, in the supermarket I was looking at a barbecue stoves and also the related, uh, related equipments so when I saw that I saw that I did not know what that was. I was quite curious about, uh, each of these things, so, therefore I, I, I, I used my mobile phone to scan, um, the contents of that. I don’t remember whether I bought that or not. Uh, I, yeah. Between the 20th and 21st I, I, I did search on the internet that could be used to, uh, barbecue, uh, uh beef. The officers that came to my home, uh, he, or, he, he would have seen a, a small, um, small stove that, uh, was used for barbecue and there’s also, there was also a lot of, um, meat for barbecue in the fridge. I remember on the first, um, uh, in my, in, in my garbage bin I still had some, uh, you know, the, the, the, the, uh, the beef and also the bones, et cetera, all this rubbish, food scraps … there was still, uh, uh, beef and meat in the fridge. Um, yeah. I did use that to, um, do the barbecue at home.

Q. Okay.

A. Yeah. I now remember I did buy this but also I bought this home.

Q. You, you’re pointing at the receipt dated the date of the 22nd of the firelighters?

A. Yeah. I, I brought it home. One hundred per cent. I, I took it home, one hundred per cent sure. I took it home. Uh, between the 23rd and the 28th I used that at home. No, it was between the 23rd and the 1st of May I used it. So, uh, so I’m, I’m sure on the 1st of May, uh, there was, uh, food scraps of this, um, beef in my garbage bin.”

389. The accused went on to say that he took firelighters out for a picnic on the 1st of May and then provided the following explanation:

“Okay. So the reason why, um, I now remember the reason why you only found one was because I used one and also, I only, I bought two boxes of, uh, the lighters and, and I could not find the first one at home. So on the 24th I bought another box.”

390. The accused proceeded to tell police that he used the firelighters to cook beef directly without a grill. He told police that on the day they executed the search warrant he was out with a group of people together in a park near the sea and he took firelighters and meat with him. He could not identify who his friends were, saying it was organised through the internet. He was asked:

“Q. If they’re your friends, you would know where they are and who they are and what they’re contact numbers are?

A. So they’re not my friends. Because that was, that was organised, uh, initiated from the internet to pick persimmons. So, I, I knew there wasn’t lunch that day at the sea therefore I bought this out.”

391. The accused could not identify the location near the ocean.

392. The accused stated to police that he had no motive to turn off the CCTV. When police told him he did have a financial motive because he had made a claim against his insurance, the accused said:

“So the, the claim amount is lower that what I’ve lost.”

393. When asked how he explained flames coming out of the roof of the warehouse four minutes after he had left, the accused said:

“I don’t know. I only know that, um, uh, before I left the last thing I did was to, uh, charging the forklift. I need, I did not light any fire, uh, or even …(incense).”

394. The accused was asked:

“Q. Did you hear any explosions?

A. I remember yes.

Q. Yeah …

A. Yes, now I remember, I heard on that day there was a bam, bam. Because in Auburn there are often people who fire off, uh, uh, uh, uh, you know, fireworks.”

395. The accused told police he was very sure that the fire was caused by a short circuit during the charging of the forklift. He told police the premises were full of paper cartons which would burn very quickly.

395. The police asked the accused to tell them about his gambling history. He said:

“I occasionally went there but I, I don’t gamble.”

He went on to say:

“I don’t very like it.”

He was then asked a question:

“Q. How much have you gambled there at the casino?

A. I don’t remember. I, I don’t remember but, uh, very rarely lose.”

…

Q. And how much do you win?

A. Uh, uh, uh, I, I don’t know but sometimes feel, uh, tens of thousand, sometimes few thousand, varies.

Q. But you don’t lose?

A. Very rarely because I, I did not, I did not stay there for very long, uh, leave, left very quickly.

When it was pointed out that he had spent 91 hours at the casino from October 2018 to May 2019, a period of seven months, and that it was a lot of time, the accused said:

“Occasionally I would have company friends to go there.”

397. When police pointed out to the accused that on 16 May he had taken $19,800 to the casino and left with $5,000, and that he had lost about $15,000 in one day, the accused told police that he sometimes went there and exchanged the cash into chips and that he often did that. He went on to say:

“So often time I do not, I did not exchange these chips back to cash, my friends can prove that. And also often-time I, um, I bought some small notes like $20 and, uh, $50 to change for that chip because the, uh, the casino usually gave back that brand new cash notes, um, with very, uh, serial, you know, the, the good serial numbers … serious numbers. In that way that, might, made … my life, uh, daily life, very, very easier. You can see the photos from my photos, uh, the photos in my mobile phone, there are a lot of photos about my chips. So for example on that day, I probably will only need six chips, six chips instead of a whole stack.”

398. When police informed the accused that in executing the search warrant at his premises they did not find any chips, he told them that he took the casino chips to the beach with him.

399. The accused denied having an addiction to gambling. It was put to him that he had cashed $59,700 at the casino on 17 April 2019, the same day as he had withdrawn $50,000 from Rainbow Sydney’s account. He was asked:

“Q. Did you use the company’s money to gamble?

A. No. But I would exchange the cash into chips for easy carrying.

Q. Do you know what’s easier? Put it in a bank. It was already in a bank.

A. No.”

The accused went on to say that he may have been at the casino with a friend and provided his card number to him. When asked:

“Q. Who was the friend?

He said:

“A. I don’t remember.”

400. The accused denied lighting the fire at his warehouse and denied doing that with the intention of defrauding CGU, his insurance company. He told police he did not know who lit the fire and said:

“A. But my company was in, uh, profit and also … the single company and the profit was growing. There was no, not necessary for me to, to, to lit the fire. And, and the, the claim amount is lower than …”

Assessment of the Crown case

401. Having regard to the whole of the evidence as summarised above, the factual findings that I have made based on the evidence and the concessions made by the accused as to both motive and opportunity, the Crown case constitutes a very strong circumstantial case, giving rise to an unavoidable conclusion that the accused Rui Zeng deliberately lit the fire at the warehouse premises and did so with a view to making a financial gain for himself.

402. Notwithstanding the concessions made on behalf of the accused, the strength of the evidence upon which the Crown relies cannot be understated. The evidence establishes that the business of Rainbow Sydney was not doing well as stated by the accused. He had not paid rent on the leased premises since 1 December 2018 prior to the fire on 22 April 2019, and he lied to the police by saying that rent in the sum of $40,000 had been paid. Nor had he paid his employee, Daniel, $2,800 in wages. The accused had also refused to re-pay Jennifer Zhang the money she invested, an amount exceeding $70,000, and the accused’s evidence that that sum represented a 10% valuation of the business was just implausible. The accused also refused to pay Boyu Zeng the $40,000 he was owed, again by implausibly stating that he had lost his identification and the bank had frozen his account. Moreover, when the business did receive money, for example, the sum of $68,000 from HBW received on 16 April 2019, the accused merely withdrew that money from Rainbow Sydney’s account and cashed it at the Star Casino.

403. The accused clearly had a gambling problem, as evidenced by his losses prior to April 2019 and his continued attendances at Star Casino following the fire, and the use of further monies received by Rainbow Sydney from HBW for goods which the accused never intended to supply. The accused lied to the police about his gambling, and the substantial losses he incurred as evidenced in Ex AO.

404. That evidence must be viewed against the evidence that the accused took out fire insurance with CGU on 16 April 2019, and added business loss insurance in the sum of $180,000 on 17 April 2019. Notwithstanding that such action might be characterised as amateurish, it provided a clear motive for the accused to set fire to the premises and make a claim on that policy.

405. The Crown also relies on lies told by the accused, both to the police and in his evidence, as showing a consciousness of guilt. I find that those lies were manifold. Whilst Counsel for the accused accepted that there would ultimately be adverse findings as to the accused’s credit, a concession properly made, the extent of the accused’s mendacity should not be understated. I find that the accused lied in respect of the following:

1. His evidence about the purchase of firelighters, his loss of one packet of firelighters and his subsequent evidence that he took firelighters to the ocean on 1 May 2019, when the police executed their search warrant at his home, and his purchase of firelighters on 24 April was internally inconsistent, implausible and incapable of acceptance.

2. His evidence that he used firelighters to cook beef directly was untruthful. I accept Ms Qi’s evidence that she had never seen the accused cooking with firelighters at home.

3. His failure to tell police, when questioned by them on 24 April 2019, that he spent time at the casino. This was deliberately misleading.

4. His subsequent description of his gambling, and particularly his evidence that he made losses “very rarely” was untruthful.

5. His evidence that he cashed large sums of money for chips was implausible and was an example of tailoring his evidence to meet the facts against him.

6. His evidence that he took casino chips to the beach on 1 May 2019 was another example of tailoring his evidence, to explain why police had found no chips at his home that day.

7. His evidence as to the valuation of the business was hyperbole, again tailored to meet the evidence against him.

8. The two receipts sent to Mr Ren, being Ex W, were both documents falsified by the accused in an attempt to satisfy Mr Ren that he had placed orders with two suppliers for milk powder products, when in fact no order had been placed.

9. His evidence that Mr Ren created the receipts in Ex W was entirely untruthful.

10. His evidence that the process of charging the forklift involved some noise which the supplier had made an arrangement to investigate on 23 April 2019 was untruthful.

11. His denial that he told Mr Ren that “a small thing had happened”, that he was covered by five insurance policies and would be well compensated.

12. He lied when he told the police that the business had paid the bank guarantee and in fact it was paid by Ms Zhang.

13. He lied about the business having a valuation of $700,000.

14. He lied about having no customer payments in April because the payments were to be collected at the end of April.

15. He lied when he told police he did not like gambling at all.

16. His evidence that he had two suppliers of milk products, one in Sydney and one in Adelaide, when he was unable to name the Adelaide supplier was untruthful.

17. His evidence that it was not possible for him to erase his mobile phone contents was untruthful.

18. His evidence that Rainbow Sydney paid him a salary “whenever he needed the money” was untruthful and unsupported by the bank documents.

19. His evidence that he withdrew $50,000 on 17 April “for the operation of the company” was untruthful, in light of the fact that he cashed that money, together with another $9,000, at the casino that evening.

20. His evidence that he would pay for milk products with gambling chips was untruthful.

21. The evidence that he was unable to pay Boyu Zeng because he lost his banking identification was untruthful.

22. He lied to the police about the rent, and not owing money to any person or business prior to the fire.

23. He lied to the police about the maximum allowable withdrawal being $10,000.

24. He lied to the police about the reason for him requiring a second insurance policy was because he was in the course of developing an “express delivery business”.

25. He lied to the police about the CCTV hard drive being switched off during cleaning.

26. He lied to the police about using two of the computers at the premises on 22 April, when none of the three computers had been logged onto that day.

27. He lied about the withdrawal of $50,000 on 17 April 2019, being for “cash flow cash”.

28. He lied when he told the police that he did not know who HBW was.

29. He lied to police about providing his casino card to a friend, whose name he could not remember.

30. The accused also lied when he told police that the profit for Rainbow Sydney was growing.

406. There were numerous other examples of matters where findings inevitably would be made adverse to the accused’s credit, for example, the evidence of Daniel Yang being told by the accused to lie to the insurance investigator, Ms Russell, and to cut any meetings short, and numerous answers he gave to the police about his dealings with Ms Zhang, Mr Zeng and Mr Ren. The Crown properly conceded that such matters go to credit rather than consciousness of guilt. When viewed together with the above matters, however, I find that the accused could not be accepted as a witness of truth. In accordance with the direction I have given myself, as I do not believe the accused’s evidence, nor do I think it might be true, I therefore put the accused’s evidence to one side. The question then arises, has the Crown proved the accused’s guilt beyond reasonable doubt, and in considering that question, is there any other reasonable conclusion arising from the facts as I found them which is inconsistent with the conclusion the Crown asked me to find.

Assessment of the accused’s case

407. The accused’s case is that the Crown has not proved beyond reasonable doubt that the fire was deliberately lit by the accused. The accused relied on the concessions made by Mr Mealor in cross-examination that what he referred to as six seats of fire, were in fact six locations where flammable material was observed by him to be burning. The most intense fire was located in the south-western corner of the warehouse, near the location of the forklift and charger. It was submitted that when viewed as a whole, the evidence regarding the fire left room for a finding that in each location the fire was caused by either radiant heat or very hot material dropping down from the roof, and in particular, the skylights, which were found to be missing from the roof, having been consumed by the intensity of the fire.

408. It was submitted that in his evidence, Mr Schweickle had not dismissed the prospect that drop-down could cause areas of fire and could have ignited other small fires within the premises. Further, the accelerant detection canine had not found any evidence of accelerant still in the premises. A most unusual aspect of the fire was the burnt pallets closest to the roller door.

409. Further, it was submitted that whilst the investigator had found no single point of ignition of the fire, he had not had the opportunity to inspect the whole of the premises because they were unsafe. It was submitted the heating of bricks could have caused small fires and the damaged floor mat on the forklift was significant. That damage demonstrated that substantial heat had come from the left-hand side of the forklift, namely, from the direction of the charger, and the damage it caused gave rise to an inference that that could possibly be where the fire started. That gave rise to an inference that it was the potential point of ignition of the whole fire, particularly having regard to the evidence of Mr Conti in respect of the possibility of the Anderson plug causing a short. The Anderson plug of course was missing and had never been identified or located.

410. The accused relied on some differences of opinion between the experts Mr Sutarov and Mr Schweickle to submit that it was unclear whether there were in fact six separate seats of fire. Concessions were made by the experts as to the possibility of ignition of fires by way of radiant heat. Whilst it was conceded that the predominance of the expert opinion was that the fire was deliberately lit, a number of other possibilities could be accepted as arising by inference from all the evidence.

411. The accused submitted that there may have been a small conflagration at the back of the premises at the time when the accused left and therefore a question arose as to whether there was in fact a timeline in place for the fire. Given that a fire may have been simmering for some time whilst the accused was in the premises and there was a large pile of cardboard on the metal racking adjacent to the location of the forklift, the timeline leading to a major conflagration of fire, viewed through the roof of the premises within four minutes of the accused leaving, became an unlikely scenario. Further, at 7.15pm, the accused had sent a message to his employee Yang about commencing work at 10.30am tomorrow, and doing cleaning work to welcome the new team. This was consistent with the accused not being aware at that time that there was a fire in the premises. Also relevant was the description of Mimi Qi as to the changes she observed in the personality of the accused immediately after the fire, to the effect that he had become very emotional. The evidence established that he had not taken any personal effects from the premises which was not consistent with deliberately lighting the fire for financial gain.

Determination

412. In considering the totality of the evidence, I am satisfied that each of the elements of the offence are made out, namely, that on 22 April 2019 at Auburn, New South Wales, the accused dishonestly, with a view to making a gain for himself, did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire. I am satisfied that the accused used the firelighters he purchased on the afternoon of 22 April 2019 to light six separate fires within the warehouse, and that between each of those seats of fire, there was no fuel load. I am satisfied the most intense area of the fire was in the south-western corner of the premises, as a result of that part of the premises being where used boxes were stored and flattened cardboard boxes to be used in the packing process were also stored on the metal racking. I am not satisfied that the fires were lit by either radiant heat or drop-down from the skylights. For example, the timber pallets stored near the roller door at the front of the premises, which were found to be extensively burnt, were not underneath any skylight.

413. Nor is the absence of any accelerant being found in the premises post the fire determinative. Given the use of firelighters and the intensity of this particular conflagration of fire, it is understandable that all of the accelerant used, namely, the firelighters, would have been consumed in that conflagration.

414. Nor does the evidence as to the burnt mat on the forklift, and the cables from the charger to the forklift, support a finding that the single point of ignition of the whole fire was at the location of the forklift. This could only be entirely speculative, and is contra-indicated by the evidence of the expert witnesses, that a fire caused by the charger was virtually impossible, given the safety protocols in place in that item, the lack of combustible material contained within it and the presence of unburnt paint on the inside lid of the charger.

415. There is no evidence to support the submission put on behalf of the accused that there may have been a small conflagration at the back of the premises at the time when the accused left. That submission was not supported by the evidence of the accused himself, to the effect that he inspected the premises before he left and placed the forklift battery on the charger. That submission could therefore only be regarded as being entirely speculative. It also means that the submissions made on behalf of the accused that the timeline relied on by the Crown was flawed, should be rejected. My finding that the premises were well under fire, as viewed through the dashcam footage in Ex A, within four to five minutes of the accused leaving the premises, inevitably excludes a finding that the fire commenced as a result of a short in the charger or the connecting cable which ignited flammable material nearby.

416. Further, the message the accused sent to his employee, Daniel Yang, at 7.15pm, is equally capable of being evidence of the accused deliberately covering his criminal conduct, as it is exculpatory. Nor could any weight be placed on the evidence of Ms Qi as to the changes she observed in the personality of the accused following the fire, given all of the circumstances. Nor can any weight be given to the submission that the accused did not remove personal effects from the premises, as there was no evidence as to what was contained in the box he was seen to be carrying when he left the premises on 22 April 2019.

417. Having regard to all of those matters, I am not satisfied that there is any reasonable conclusion open on the whole of the facts that is inconsistent with the conclusion that the fire was deliberately lit by the accused for the purpose of him making a financial gain for himself. Having considered and weighed all of the circumstances established by the evidence, I find there is no inference consistent with innocence of the accused reasonably open to be drawn on that evidence. I therefore find that the Crown has proved its case against the accused beyond reasonable doubt.

Order

418. Having found the Crown has established its case beyond reasonable doubt, I find the accused guilty of Count 1 on the Indictment, that on 22 April 2019 at Auburn in the State of New South Wales, he did dishonestly, with a view to making a gain for himself, damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire.

**********

Decision last updated: 17 December 2020