Sever v R - [2010] NSWCCA 135

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Sever v R [2010] NSWCCA 135

HEARING DATE(S): 16 March 2010

JUDGMENT DATE:
25 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Latham J at 142; Schmidt J at 151

DECISION: The appellant’s conviction quashed and a verdict of acquittal entered.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - whether trial judge fell into error in permitting the jury to consider alternative case of joint criminal enterprise - whether trial judge erred in his directions as to joint criminal enterprise - jury likely to have convicted appellant on the basis of joint criminal enterprise - absence of evidence to hypothesise that another person involved in the offence - trial judge not in error by allowing the issue to go to the jury - CRIMINAL LAW - appeal against conviction - whether verdict unreasonable and incapable of being supported by the evidence - verdict not open on the evidence

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Barca v R (1975) 133 CLR 82
Beatson v R [2009] NSWCCA 288
Burrell v R [2007] NSWCCA 65
Carney v R [2008] NSWCCA 140
Chow v R (2007) 172 A Crim R 582; [2007] NSWCCA 225
Cittadini v R [2009] NSWCCA 302)
Dodds v R [2009] NSWCCA 78
Doney v R (1990) 171 CLR 207; (1990) 96 ALR 539
Fernando v R [2008] NSWCCA 97
Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
Jones v R (1997) 191 CLR 439
Knight v R (1992) 175 CLR 495
M v R (1994) 181 CLR 487
McLeod v R [2008] NSWCCA 127
MFA v R (2002) 213 CLR 606.
Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235
Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316
Peacock v R (1911) 13 CLR 619
Penney v R (1998) 155 ALR 605; [1998] HCA 51
Plomp v R (1963) 110 CLR 234
R v Docker [2005] NSWCCA 425
R v Habib [2005] NSWCCA 223
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v JMR (1991) 57 A Crim R 39
R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256
R v PL [2009] NSWCCA 256; (2009) 261 ALR 365
R v Prochilo [2003] NSWCCA 265
R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404
R v Tangye (1997) 92 A Crim R 545
Sgardelis v R [2006] NSWCCA 338
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
Tekely v R; Nagle v R [2007] NSWCCA 75
Thomas v R (1960) 102 CLR 584
Thornton v R [2007] NSWCCA 164
TK v R [2009] NSWCCA 151

PARTIES: Zoran Sever (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/16269

COUNSEL: W C Terracini SC/M P Tanevski (Appellant)
P Miller (Crown)

SOLICITORS: Goodhands Lawyers (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/16269

LOWER COURT JUDICIAL OFFICER: Walmsley DCJ

LOWER COURT DATE OF DECISION: 11 March 2009

2007/16269

McCLELLAN CJ at CL
LATHAM J
SCHMIDT J
FRIDAY, 25 JUNE 2010

SEVER v R

Judgment

: The appellant was convicted following a trial with a jury of dishonestly destroying property by fire with a view to making a gain contrary to s 197(1)(b) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment. The appellant was sentenced to a term of imprisonment for 3 years with a non-parole period of 2 years. He appeals against his conviction and seeks leave to appeal against his sentence.

The appellant’s factory burns

2 The appellant was the sole director of Picasso Builders Pty Ltd (“Picasso”). Picasso carried on a business of commercial joinery, shop fitting, construction and building maintenance. It operated out of factory premises at 3A Stornaway Road, Queanbeyan. This property and the adjoining residential premises at 5 Stornaway Road were owned by the appellant through Picasso. The factory premises were destroyed by a fire which started in the early hours of 1 June 2004.

3 The appellant’s business was successful. The evidence from Mr Storm, a business banker, was that in the 2002-03 financial year it generated a gross revenue of $1.3m and a net profit of approximately $1m. Although perhaps surprising, this evidence was not contradicted. It suggests that the business was both efficient and obviously profitable. It had a number of significant contracts including one to perform work on the Old Parliament House.

4 The factory premises had a frontage to Stornaway Road. There was a reception area and office facility located in the north-eastern corner of the building on the ground floor and another office at the level immediately above the ground floor office. To the south of the office area there was the entrance to a loading dock. From the loading dock there was access to the main body of the premises including a metal store, timber store, paint store and spray booths. These facilities, including the office, occupied half of the floor area. The remainder was given over to a general workshop.

5 The northern wall of the building did not sit on the boundary and there was a gap, sufficient to allow a person to pass, between that wall and the adjacent fence. There was a hole in the northern wall between the timber store and metal store which I will refer to as the “hole in the wall”. There was a corresponding hole in the fence adjacent to the hole in the wall which allowed long pieces of metal to be passed into the factory’s metal store from outside. The Crown case was that a taper or other object impregnated with thinners was thrown through the hole in the wall where it dropped on to the floor of the metal store where accelerant had been placed. It was alleged that the fire started at this location and then followed the path of the accelerant to the office section of the building.

The appellant leaves and goes to dinner

6 The appellant left the property at about 6.39 pm on 31 May. Before leaving he set the alarm which was an integrated fire and burglary facility. Although designed as a burglar alarm, the system was activated by any moving source of heat, whether human or otherwise. There was no sensor adjacent to the hole in the wall. However, there were sensors in other parts of the premises including at the rear of the enclosed office facility and adjacent to the front loading dock.

7 After securing the premises, the appellant attended a dinner at a restaurant with business colleagues in Dixon in the Australian Capital Territory, and some 18 kilometres from Queanbeyan. It was agreed between the Crown and the appellant that the appellant left the restaurant at about 1.00am. On his journey home he used his mobile phone at about the junction of Northbourne Avenue and London Circuit at 1.08.07 am. That junction is in the centre of Canberra, some 17 kilometres from Queanbeyan. The appellant said that after coming home he kissed his sleeping child and then watched television before going to bed at approximately 2.00am. It is of significance that the Crown agreed that he reached his home after 1.30am and went to bed at approximately 2.00am. The appellant’s residence is approximately 600 metres from the factory.

Matters of timing

8 The alarm system produces a record of its activities. At 2.23am on 1 June 2004 a test signal was sent to the alarm monitoring station indicating that the alarm was operational. There was no indication that it had been triggered between 6.39pm the previous evening and when the first alarm was registered at 2.52am the following morning. On that occasion the sensor in zone 6 responded at 2.52.13 but restored itself at 2.52.58. Zone 6 is the upstairs part of the office facility. At 2.53.19 the sensor in zone 6 was again activated followed almost immediately by the sensor in zone 2 which is at the rear of the loading dock. The sensor in zone 2 was apparently restored after about 30 seconds but responded again three seconds later simultaneously with the sensors in zone 1 (loading dock front) and zone 7 (workshop rear). At 2:54:31 the company responsible for monitoring the alarms attempted to contact the appellant but was unsuccessful. It was not long before other sensors were activated, and at 2.54.32 the system registered a power failure. At 2.54.59 an attempt was made to contact the appellant’s wife, however this attempt was unsuccessful. At 2.55.59 the activation of multiple sensors led to the ACT police being alerted. At 3.00.53, the NSW police were alerted.

Observations of the premises

9 Constables Ronald Craig Lupton and Constable Seale were the first to arrive at the scene at approximately 3.00am. Constable Lupton remained there until approximately 6.00am at which time the fire was still burning.

10 Captain Christopher Dew, Captain of the Queanbeyan City Fire Brigade, arrived at 3.06am on 1 June. He formed the impression that the fire was very intense and had been burning for some time. He observed that the power lines running to the premises were “arcing”. Arcing occurs when power lines affected by radiant heat begin to melt and merge. Fallen power lines present a particularly hazardous situation for fire and emergency crews. The presence of arcing indicates that power is still flowing through the lines to the premises. Captain Dew said that he pulled the service fuses. He then called for backup assistance. In due course the fire was contained through the use of high-pressure hoses. Water was initially projected directly over the roof area of the workshop. To enable the fire crews to access the fire with their hoses, holes were cut in the roller doors to the workshop and loading dock areas. In order to minimise water damage to the administration part of the building, a 38mm hose was used in the downstairs reception and upstairs office areas. A more powerful 70mm hose was used to project copious amounts of water through the workshop area. For reasons that will emerge, shortly after he arrived at the scene, Captain Dew notified Wollongong Communications that the fire was suspicious. After it was contained, the fire continued to burn intermittently in various locations for approximately two days.

11 Mr Michael Godden, a fire officer, arrived at the scene at 3.15am on 1 June. He remained there until 9.30pm on 1 June. He returned on 2 June at approximately 6.20pm to order to ensure that the scene was secured for police investigation. Mr Godden’s evidence was that the appellant arrived at the scene at approximately 9.00pm on 1 June. He approached Mr Godden and said he was “just going to have a look”. Mr Godden denied him access to the site for the reason that it was a crime scene. The appellant sounded agitated and said words to the effect, “I am the owner of the property”. Mr Godden said words to the effect, “I don’t care. You are not allowed at the site.” The appellant then offered to open the house next door and turn on the heaters, an offer that Mr Godden declined. Mr Godden observed the appellant returning to his white Ford Falcon utility, where he sat for about five minutes before driving away. The appellant had been woken by police officers on the morning of 1 June and taken directly to Queanbeyan Police Station where he was interviewed. Although he had been taken past the fire scene en route to the police station, he was not able to properly visit it until late that evening.

12 A number of people were involved in the investigation of the fire. Mr Christopher Sedgwick (a Fire Brigade Officer and Investigator) attended the fire scene at 11.14am on 1 June. He spoke with Captain Dew about the extent and course of the fire. He took a number of photographs which were in evidence. He commenced an external examination of the factory premises following which he conducted an internal investigation from the area of least damage to the worst. His method of investigation was designed to reveal the course the fire took through the building.

13 Ms Melissa Cashman, a crime scene police officer with expertise in fire investigation, visited the site on 1, 2 and 3 June. She took photographs, which were in evidence, and samples, which were the subject of forensic analysis.

14 Mr Phillip Etienne, a canine handler within the Fire Investigation Research Unit, brought “Ellie” (a dog trained to detect the presence of accelerants at fire scenes) to the scene of the fire on 2 June.

15 Mr Gary Nash, a Consulting Forensic Scientist, was instructed by GIO to investigate the fire. He attended the scene on 2 and 3 June 2004 and took photographs and samples. Mr Michael Mosslar (electrical inspector for a company contracted to ADT Security) was engaged by Mr Nash to investigate the factory’s ADT alarm system to determine whether it had been tampered with prior to the fire. The evidence of Mr Nash and Mr Mosslar was critical at the trial.

The appellant had no explanation for the fire

16 The appellant was interviewed on more than one occasion by the police after the fire. He did not give evidence at the trial. When he was asked whether he had any idea how the fire may have started the appellant frankly admitted that he had no explanation. He said that he did not understand how the fire could have started spontaneously. He indicated that as far as he was aware he had no personal enemies who may have wished to damage his premises. His business was successful and he had ongoing contracts which ensured work for his employees. The interviews do not suggest that the appellant was trying to divert suspicion away from himself.

The evidence of Mr O’Brien

17 The Crown called evidence from a neighbour, Mr Michael O’Brien. Mr O’Brien lives in a home unit located opposite the factory on Stornaway Road. He said that on the evening of 31 May he was preparing for bed and when he was adjusting his window, at about 10.50pm, he observed a motor vehicle in the street which he “took to be a Ford Falcon utility” with the word “Picasso” written on the side. He said that he saw the vehicle go past his window after which it passed out of sight. He then saw the lights of a vehicle, which must have been the utility, travel up the driveway of the factory.

18 When cross-examined, Mr O’Brien accepted that he could possibly have been mistaken in relation to the make and model of the vehicle. He accepted that he observed the car out of the corner of his eye while he was busy adjusting the blinds. He did not observe the driver. At one point, his view was obstructed by bushes. He accepted that it was not unusual for a vehicle to be approaching his window late at night, and that this vehicle was not doing anything unusual. He also accepted that he regularly saw trade vehicles entering and exiting the driveway to the factory premises.

19 Mr O’Brien said that he had no recollection of this vehicle leaving the premises. He gave evidence that he went to bed but had trouble sleeping. He said that after a period which might have been some hours later, and at a time when he did not know whether he had been asleep, he heard a vehicle which, he inferred, was leaving the factory premises. He could not say whether this was the same vehicle which he had earlier observed. He said that it came down the driveway and braked hard, skidding in the loose gravel which was at the foot of the driveway onto Stornaway Road. He said that the vehicle took off at high speed down Stornaway Road in the direction of the appellant’s residence. Mr O’Brien said that after approximately 15 minutes he heard an alarm and thought to himself, “Oh well.” He said that a short time later he heard the sound of sirens and then heard vehicles including trucks stopping outside his unit. He said that although he did not get out of bed and look out of the window the top half of the blinds in his room did not close well and he could see the lights of the emergency vehicles flickering across the ceiling of his bedroom. A short time later, he observed fire “leaping from the top of Picasso Constructions, that area, that high glassed area of the reception and office area.”

The evidence of Mr Freeman

20 Mr Timothy James Freeman was called by the Crown. His evidence was not given particular prominence at the trial or on the appeal. Mr Freeman lived in a second floor unit in Velacia Place the balcony of which overlooked the west side (rear) of the factory premises. He said that around 1.00am on 1 June he was playing his PlayStation. At some stage (the time was not precisely identified) he looked outside and saw an orange glow. He saw a fire burning on the western side of the factory, being the wall of the factory closest to his block of units. The flames were not initially very high. He alerted the fire brigade and was told that the fire had already been reported. He then watched the fire burn for approximately 20 minutes.

The evidence of Mr Brown

21 Mr Brown rented a unit behind the main residence at 5 Stornaway Road. Both the unit and the main residence were owned by the appellant. Mr Brown accessed his unit through a break in the fence that ran between 3A and 5 Stornaway Road. The width of the break was approximately 3 metres. The break is not to be confused with the hole in the fence and corresponding “hole in the wall” located on the northern side of the factory premises. Mr Brown said he was aware that the unit in which he was living was planned to be demolished “eventually”, although he did not know when. Mr Brown owned a plain white Ford Falcon utility vehicle which he normally parked in the Picasso car park (adjacent to the break in the fence) at the end of each day. Mr Brown did not have keys to the factory premises, however he would frequently collect materials from the factory during business hours. Between 1pm and 6pm on 31 May 2004 Mr Brown entered the factory via the door located between the workshop front and loading dock front. He collected some supplies from the paint store. He did not recall seeing or speaking to anyone at this time, however he did recall seeing the appellant’s car which was parked outside the reception and office area. For this reason he assumed that the appellant was at the factory. He placed the supplies in his utility and walked to his unit. He did not recall hearing the appellant’s car leaving the premises, nor did he recall hearing any vehicle moving around on the driveway between the time he collected his materials and the time he went to bed at approximately 10.30pm. He was awakened by the sound of alarms at approximately 3.00am on 1 June. He got out of bed and opened his door to look outside. He said the sensor lights positioned in the “yard” were not on and for this reason he “assumed it was just another false alarm”. He then went back to bed but about 15 minutes later heard a crackling sound as well as the sound of alarms. He again went outside and noticed a “glow emanating from the windows of the workshop.” He then immediately called 000 but was told the fire had already been reported. He phoned the appellant but the call was not answered.

Re matter of insurance

22 From 22 December 2001 to 31 March 2004 the factory premises were insured with Allianz. Mr Todd Blunt, Investigations Manager for Allianz, gave evidence that in February 2004 Mr Vince Squadrito (an Allianz employee) conducted a survey of the company. Mr Squadrito’s observations and recommendations were communicated to the appellant. The evidence was that the survey records contained a note to the effect that the factory building was “grossly underinsured for present replacement conditions.” Renewal of the policy was not offered by Allianz. There was then a short period during which the premises were uninsured. A new policy with GIO came into effect on 21 May 2004. The factory premises were insured for a total sum of $1.75 million. This sum was broken down into $600,000.00 for the building, $150,000.00 for stock, $500,000.00 for the business, and a maximum of $500,000.00 for interruption of business payable on a pro rata basis. Ms Marion Joli, a GIO Business Insurance Representative, arranged the policy after visiting the factory premises on 3 May 2004. The appellant made a claim against the policy on 3 June 2004.

A development application

23 The factory was constructed on land which was zoned for residential purposes. There had previously been some problems with the neighbours. There was evidence that Picasso had received a penalty for a noise pollution offence. The appellant had taken some preliminary steps toward relocating the factory and developing the site with home units. He had engaged the services of an architect, Mr Hugh Gordon, and had lodged plans for the proposed demolition of the factory and subdivision of the land. These applications were approved by the Queanbeyan Council (“the Council”) on 16 January 2003. In June 2003 the appellant lodged a further development application seeking consent to construct a multi-storey block of residential units (“the Kinkora development”) on the subdivided land. This application was accompanied by plans showing the proposed development. At some stage these plans were marked “superseded”, indicating that they had been updated by the appellant. In February 2004 the Council issued requisitions to the appellant seeking further details of the proposed development. At the date of the fire, these requisitions remained outstanding. There was no evidence that at the time of the fire, the appellant had found an alternate site for his business nor that he had made any definite plans to relocate his operations.

24 In addition to the appellant, the business employed a full-time foreman (Mr Craig McGale), three joiners (Mr Mason Martin, Mr Dean High and Mr Ryan High) and the appellant’s wife (Debbie Sever), who was in charge of the bookkeeping. The business also engaged independent contractors from time to time including Mr Christopher Brown, a subcontractor painter. Mr McGale, Mr Martin, Mr Dean High, Mr Ryan High and Mr Brown all gave evidence at the trial. The number of persons employed by the business varied according to the nature of the work undertaken. In the appellant’s first ERISP (conducted on 1 June 2004) the appellant said that the business had recently employed 58 individuals.

25 The following people had a set of keys to the factory premises: the appellant, his wife, Mr McGale, Mr Martin, Mr Dean High and/or Mr Ryan High. All told there were five or six sets of keys each of which included a master key and possibly the key to the front glass doors.

26 Approximately a fortnight after the fire, Mr Gordon met with Ms Lorena Blacklock (then Town Planner for the Council), Ms Penny Day (then a planning consultant for the Council) and Mr Phil Gibbins (whose position was not specified). A file note of the meeting was prepared by Ms Blacklock. The file note contained a statement that the previous plans submitted by the appellant were not marketable and would be withdrawn. According to the file note, updated plans for the Kinkora development were presented at the meeting. The file note recorded an extensive list of matters that were still outstanding as at 15 June 2004, and which had to be addressed before the development application could be progressed. In around August 2005 the Council finally approved the development application.

The Prosecutor’s opening

27 The Crown case at trial was opened by the Prosecutor on the basis that the appellant laid accelerant in the premises before activating the alarm system at 6.39pm and leaving. He then went home after which he attended the dinner in Dixon. The Crown asserted that after the dinner he either went directly to the factory premises or went home for a short while before returning to the factory premises. It was the Crown case that the appellant “either by his own hand or by the use of another set alight the fire that burned down the building.” The Crown accepted that there was no witness who saw the appellant laying accelerant in the factory or lighting the fire. The appellant’s motivation was said to be because he perceived a need to demolish the building and relocate his factory and that by burning it down and obtaining the insurance he would be better placed financially to make that move.

28 The Crown Prosecutor said during his opening address “so therefore if you are satisfied that this gentleman either set fire to the premises with his own hand or had the premises set on fire, then the Crown says you would not have a difficulty in accepting the rest of the elements that are contained in the allegation.”

29 The Crown Prosecutor did not suggest how it was that another person may have become involved in lighting the fire. The alleged “other” person has never been identified and his or her relationship to the appellant never explained.

30 The Crown case was that the point of ignition of the fire was adjacent to the hole in the wall. The fire then progressed down the path of the accelerant allegedly disbursed by the appellant until it reached the office area. The fact that the first sensor which detected the fire was at the upper level and not the lower level of the office facilities was explained by the tendency for fire to rise and having progressed across the floor and come into contact with the wall of the office would have moved up the wall. It was suggested that the most intense fire would immediately have been at the upper level of the office area causing the sensor at that level to be the first to be triggered.

The essential elements in the Crown case

31 When summing-up to the jury the trial judge identified the matters in the Crown case which he said must be proved beyond reasonable doubt in order for the Crown to prove the guilt of the appellant. The first was that the premises were destroyed by a fire, which was lit either by the appellant or by someone with whom he was in a joint criminal enterprise. The next element which his Honour identified was that the appellant deliberately lit the fire with a view to making a gain. Finally his Honour instructed the jury that before they could convict the appellant they must find that he was acting dishonestly.

32 In his summing-up to the jury his Honour described the first element as “the real issue” in the case. His Honour said that:

“The Crown case is that either the accused lit the fire and thereby destroyed the premises by means of fire or was a party to some arrangement with someone else to light the fire thereby causing that destruction. Now it is open to the Crown to put its case in these alternative ways. Sometimes it just is not possible for the Crown to be specific in alleging that a person was the actual perpetrator of a crime or was somebody who assisted the perpetrator or set up the perpetrator to commit a crime.”

33 Later in the summing-up his Honour referred to the fact that the Crown was alleging “that either the accused did it himself or he was party to what is called a joint criminal enterprise with another person who lit the fire.” His Honour gave the jury the standard direction in relation to the existence of a joint criminal enterprise.

34 The trial judge summarised for the jury the facts which the Crown relied upon as proving either that the appellant lit the fire himself or “was a participant in a plan with someone else to have this done even though that other person cannot be identified”. The circumstances were:

“First, what the Crown says is the motive available, that is to make a claim under the policy;

Secondly, the fact that there is evidence that the fire was deliberately lit;

Thirdly, there was what the Crown says was the opportunity for the accused to spread the accelerant in the building;

Fourthly, there is the fact that the accused put on the alarm and locked the premises at about 6.30/7pm;

Fifthly, there was an apparent lack of opportunity for others to spread the accelerant;

Sixthly, there was what was said to be the lack of any evidence of forced entry into the premises;

Grounds of appeal

35 There are three grounds of appeal.

Ground 1 The trial judge fell into error in permitting the prosecution to present an alternative case (joint criminal enterprise) to the jury. The trial judge should not have allowed the jury to consider and deliver a verdict based on joint criminal enterprise.

Ground 2 The trial judge fell into error in his directions to the jury as to joint criminal enterprise and in answering the jury’s questions after they were considering their verdicts as to joint criminal enterprise.

Ground 3 The verdict was unreasonable and incapable of being supported by the evidence.

Grounds 1 and 2

36 Because I have come to the view that the appellant must succeed in relation to ground 3, I shall deal more briefly with grounds 1 and 2.

37 The appellant submitted that there was no evidence capable of supporting a case of joint criminal enterprise. His counsel drew attention to the fact that the trial judge apparently accepted that this was so in his discussions as to the manner in which the Crown case could be left with the jury. At one point his Honour said:

“I agree there is no evidence on it specifically, but I think I need a lot of persuading before I said to the Crown ‘you are not allowed to put that to the jury.’”

38 The appellant emphasised that there was no evidence of telephone calls between the appellant and any other person, no evidence of suspicious meetings, suspicious banking transactions or identification of another person at the property on the night in question. It was submitted that at its highest the Crown’s assertion was simply speculation which may have resulted in unfair prejudice in the minds of the jurors. It was submitted that there was no evidence from which it could be inferred that the appellant had an arrangement with another person to start the fire.

39 In the course of its deliberations the jury asked a question of the trial judge. It was in the following terms:

“In the judge’s directions to the jury he made statements about collusion and the requirement of the Crown to prove joint criminal enterprise. Can this be further explained and clarified.”

40 When the jury returned, his Honour said to the jury that if they were not satisfied beyond reasonable doubt that the accused himself set fire to the building:

“then you should consider the alternative case put by the Crown, and that is that he was party to an agreement which I called this morning a joint criminal enterprise with someone else to set fire – to get that other person to set fire to it.

But before you can find the accused guilty on that alternative case you the jury must be satisfied beyond reasonable doubt that there was a joint criminal enterprise with someone else and the participation in it by the accused.”

41 His Honour then proceeded to repeat directions which he had earlier given about the legal elements of a joint criminal enterprise. However, he did not, either in response to the jury’s question or otherwise in the course of his summing-up, identify any evidence from which the jury could infer that the appellant joined with another in committing the alleged crime.

42 After the jury were given these further directions by the trial judge they retired, returning after 21 minutes with a verdict of guilty. The appellant submitted that it would be reasonable to infer that their verdict was founded upon a finding that there was a joint criminal enterprise.

43 Defence counsel at the trial did not formally ask that the trial judge rule that the alternative case of joint criminal enterprise could not be put before the jury. However, during the course of a discussion with his Honour the issue was adverted to and defence counsel submitted that the alternate case was no better than speculation. There is no doubt from this exchange that counsel was submitting to the trial judge that because of the absence of any evidence the alternative case should not be allowed to be advanced by the Crown.

44 To my mind, although there was only the slightest suggestion that someone else may have been involved in the fire, I am not persuaded that his Honour was in error by allowing the issue to go to the jury. The only support for it is the evidence of Mr O’Brien who said that he saw a vehicle with the name of the appellant’s company on it going towards the factory at 10.50 pm. However, Mr O’Brien could not identify the driver of the vehicle.

45 It is possible that this person, whoever they were, was responsible for the fire and ignited it after having entered the premises avoiding triggering the alarm system. It is also possible that if the appellant spread accelerant the unknown person was aware that it was spread and came to the premises during the night to initiate the fire.

46 The fundamental difficulty is that given the absence of evidence, to hypothesise that another person was involved is little more than speculation. However, it seems likely, given the sequence of events at the trial, that the jury convicted on the basis of a joint criminal enterprise. As will become apparent, I am satisfied that the verdict was unreasonable. Of course that question is a matter for this Court and not the trial judge. See R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404; Doney v R (1990) 171 CLR 207; (1990) 96 ALR 539; R v JMR (1991) 57 A Crim R 39; R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256; R v PL [2009] NSWCCA 256; (2009) 261 ALR 365.

Ground 3: The verdict was unreasonable and incapable of being supported by the evidence.

General principles

47 The appellant submitted that the verdict of the jury was unreasonable and could not be supported having regard to the evidence (Criminal Appeal Act 1912 s 6(1)). The approach that this Court is bound to adopt, when considering this issue, was discussed by Mason CJ, Deane, Dawson and Toohey JJ in M v R (1994) 181 CLR 487 at 493 where their Honours said:

“Where, not withstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

Jones v R

Penney v R

MFA v R

48 This approach has been applied consistently by this Court (see, eg, R v Habib [2005] NSWCCA 223; R v Docker [2005] NSWCCA 425; Sgardelis v R [2006] NSWCCA 338; Tekely v R; Nagle v R [2007] NSWCCA 75; Thornton v R [2007] NSWCCA 164; Chow v R (2007) 172 A Crim R 582; [2007] NSWCCA 225; Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235; McLeod v R [2008] NSWCCA 127; Carney v R [2008] NSWCCA 140; Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209; Fernando v R [2008] NSWCCA 97; Beatson v R [2009] NSWCCA 288; TK v R [2009] NSWCCA 151; Dodds v R [2009] NSWCCA 78; Cittadini v R [2009] NSWCCA 302).

49 The jury is entrusted with primary responsibility for determining the guilt of a person accused of committing a crime. It has the opportunity to see and hear the evidence, which is an opportunity not available to an appellate court (M at 493). Although jury deliberations take place in private, it is likely that doubts held by this Court are the same doubts that were raised, considered and reconciled by the jury in its deliberations (M per Mason CJ, Deane, Dawson and Toohey JJ at 494). For these reasons, appellate courts are reluctant to interfere with jury verdicts. However, where assessment of the evidence by this Court leads to the conclusion that there is a “significant possibility that an innocent person has been convicted” this Court must intervene (M at 494-5).

50 Where the Crown case is entirely circumstantial, as in the present case, if there is an inference or hypothesis which is reasonably open on the evidence which is compatible with the appellant’s innocence he or she must be acquitted: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579 per Dawson J; Knight v R (1992) 175 CLR 495 at 503; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]. Only if the evidence proves the guilt of the accused beyond reasonable doubt may the accused be convicted: Peacock v R (1911) 13 CLR 619 at 634; Plomp v R (1963) 110 CLR 234 at 252; Thomas v R (1960) 102 CLR 584 at 605-606; Barca v R (1975) 133 CLR 82 at 104. Whether there is a hypotheses consistent with innocence is a matter determined having regard to the evidence as a whole: Hiller at [46] – [48]; Burrell v R [2007] NSWCCA 65 at [162].

51 In his summing-up to the jury the trial judge noted, as the Crown Prosecutor had conceded, that the Crown case depended on the jury being satisfied of two fundamental elements. The first was that the appellant spread accelerant around the factory premises on the evening of 31 May 2004 before leaving work. The second was that either the appellant or somebody at his request lit the fire through the hole in the wall. It is convenient to consider the evidence in the same manner as it was approached at the trial.

Element 1 - Spreading the paint thinners

52 A number of witnesses gave evidence that accelerant could be identified in various locations in the premises subsequent to the fire.

53 Ms Cashman gave evidence that during her site visits she observed that the entire premises and particularly the downstairs office area smelled of accelerant. On 1 June the odour was “quite faint” and in her opinion was emanating from the building’s wood and metal stores. It was raining on that day. Ms Cashman said that on 2 June she detected a much stronger scent of flammable liquid particularly in the downstairs office area. Her opinion that flammable liquid was present was based on her knowledge of fires, her observations made at the scene, and the sample analysis conducted Mr Roger Lutze (Senior Analyst, Physical Evidence Laboratory of the Division of Analytical Laboratories). Ms Cashman concluded that paint thinners were used in the downstairs and upstairs office areas. Her evidence was that flammable liquid was “probably” found in the metal store. That liquid, although not identified, was likely to have been paint thinner as this was found on the ground outside the metal store at the hole in the wall. Ms Cashman said that she had taken only two soil samples outside the hole in the wall. She collected these samples on the third day after the fire, when the soil was still moist due to the fire fighting efforts and some rain that had fallen on 1 June. She accepted that the site from which she took the samples, being a gully and the lowest point in the area, was likely to contain water and other contaminants.

54 Mr Etienne, the police dog handler, gave evidence that Ellie was trained to go to the strongest odour present at a scene. Her failure to respond in one area of the premises would not mean that there was no flammable liquid in that area. Ellie was first taken to the downstairs reception area. She did not react. She was not led through the ground floor office because the scent of flammable liquid was, according to Mr Etienne, detectable to humans and would have been overpowering to a dog. Ellie then led Mr Etienne to the stairwell and searched the upper level office but she did not react. She searched the front part of the premises, passing through the workshop area to the middle of the factory and then across to the timber store. Again she did not react. Due to the collapse of the roof Ellie had to be carried over the debris into the metal store. Around the metal storage racks Ellie stopped and waited but did not sit. She was required to sit if she wished to “alert”. Mr Etienne said that she may have been unable to sit due to the presence of damaged steel debris. As Ellie progressed through the storage racks she attempted to sit. She refused to leave the area on command, indicating that she had detected the scent of flammable liquid. She searched the perimeter of the building clockwise without reacting before attempting to return to the timber store area. Ellie searched around the outside of the premises near the hole in the wall and adopted the seated position directly outside the hole in the wall. She then attempted to dig into the soil bank on which she was sitting. Mr Etienne said Ellie detected the strongest sense of flammable liquid directly outside the hole in the wall. In this respect, the evidence of Mr Etienne is consistent with that of Ms Cashman.

55 Mr Sedgwick attended the fire scene at approximately 11.00am on 1 June. He detected a strong odour, which he said was similar to acetone, in the carpet tiles lining the downstairs office and in the soil outside the hole in the wall. His opinion was that flammable liquid had pooled between joins of the carpet tiles lining the downstairs office but there was minimal accelerant on top of the tiles. His evidence was that “a heat source excessive to the standard fire heat within the factory” was present along the burn trail located in the metal store (which I discuss further below).

56 Mr Nash attended the scene on 2 and 3 June 2004. He detected the scent of flammable liquid in the downstairs office. He also detected the strong scent of flammable liquid in the south-western section of the upper level office. He said that in his opinion, the burn patterns detected along the joins of the downstairs office carpet tiles were unusual and suggested “low level short term combustion consistent with the ignition of flammable liquid in the region”. He concluded that a petroleum-based thinner had been spread in the downstairs and upstairs office areas before the alarm was set on the evening of 31 May.

Results of sample analysis

57 Ms Cashman and Mr Nash gave evidence concerning the analysis of samples taken from the premises. Ms Cashman’s evidence was based on the report of the government analyst Mr Lutze (who did not himself give evidence). The methodologies utilised by Mr Lutze and Mr Nash were not the same.

58 The results of Mr Lutze’s analysis were as follows:

No	Description of item	Results of examination
1	Carpet sample – downstairs office	Volatile hydrocarbon fraction composed principally of toluene but including cyclohexane and C9-14 paraffins
3	Tin of “Recochem Paint Thinners” – from tray of Mr Brown’s utility vehicle	1 litre of clear, colourless, non-aqueous, flammable liquid. The liquid contained oxygenated solvents, including ethanol, acetone and butoxy-ethanol in a complex hydrocarbon base, which included toluene (principal component), cyclohexane, methyl-cyclohexane, octane and xylene isomers. Traces of C9-C14 paraffins were also present. This liquid composition is consistent with a “thinners” identification.
6	Carpet sample – reception	No flammable liquid detected
7	Carpet sample – upstairs office rear	Volatile hydrocarbon fraction composed principally of toluene but including methyl & dimethyl-cyclohexane, ethyl-benzene, xylene isomers and C7-9 paraffins
8	Soil sample – hole in wall	As per Item no 7
9	Soil sample (comparative) – hole in wall	No flammable liquid detected

59 The liquid detected in the upstairs office rear sample was identical to that in the hole in the wall sample.

60 It is significant that the results for Sample No 1 and Sample No 7 were not identical. Whether this was because the samples contained different liquids was not established.

61 Mr Nash’s analysis results were as follows:

No	Description of item	Results of examination
A	Cardboard sample – downstairs office	Petroleum-based thinner (toluene base)
B	Carpet sample – downstairs office	Petroleum-based thinner (toluene base)
C	Tin of “Recochem Paint Thinners” – from tray of Mr Brown’s utility vehicle	Different thinner product to samples A and B
D	Chipboard in contact with floor – metal store	No flammable liquid detected
E	Soil sample – hole in wall	Weathered thinner product based on toluene ziolenes
F	Cardboard sample – upstairs office	Petroleum-based thinner
G	Carpet sample – upstairs office	Petroleum-based thinner
H	Comparison sample – reception	Toluene and low levels of ziolenes and trimethylbenzines partially masked by components natural to the sample matrix
I	Base of chipboard stand – metal store	No flammable liquid detected
J	Entrance – timber store	No flammable liquid detected
K	Comparison soil sample – timber store exterior	Toluene and very low levels of ziolenes and trimethylbenzines partially masked by components natural to the sample matrix

62 Mr Nash said that his findings indicated “[d]ifferent levels of the same substance” in relation to samples E and K.

63 It is significant that no flammable liquid was detected in sample D, which was taken from the floor of the metal store, the area upon which the Crown says a trail of liquid accelerant was laid. Mr Nash agreed in cross-examination that there were “absolutely no signs of ignitable liquid anywhere in the metal store area” or outside the hole in the wall at ground level.

64 In his written report, Mr Nash recommended “that samples of all thinners products possibly in use or stored within the factor[y] [sic] be provided for comparison purposes to identify whether or not the material may have originated from a source within the factory.” As far as Mr Nash was aware, that recommendation was not put into effect.

Natural accumulation or deliberate spreading of accelerant?

65 The Crown’s submission was that because accelerant had been identified in locations where one would not normally expect to find it, such as the ground floor reception area, it could be concluded that thinners were spread deliberately about the premises. The Crown drew attention to the inherent unlikelihood of paint thinners being spread by fire hoses into the office areas, particularly upstairs, as in its submission there would have been no need to store paint thinners in either office. There was no evidence of any split or broken containers of paint thinner having been recovered from the debris. The Crown case was that a taper or other object impregnated with thinners was passed through the hole in the wall. The accelerant found outside the hole in the wall was alleged to be unburnt accelerant which had dripped off the taper (or other object) onto the ground before the taper was lit.

66 In Ms Cashman’s opinion, a “person or persons unknown (had) spread paint thinners in the downstairs and upstairs office of the premises” together with flammable liquid in the metal store and possibly outside the hole in the wall. The metal store contained large racks for storing rods of aluminium. Her evidence was that the middle of the storage racks sustained greater damage than the ends. Ms Cashman regarded this as unusual and concluded that the fire had burned long and hot in the middle of the metal store. One possible reason for this was that accelerant had been spread through the metal store in a line passing from the rear wall of the metal store directly through the storage racks to the rear wall of the office/reception area.

67 Mr Sedgwick’s opinion was that accelerant had been deliberately dispersed from the alleged point of ignition to the office and that further accelerant was dispersed in the office premises. This conclusion was based in part on his observation that a substance with an odour similar to acetone was detected in the ground floor office carpet tiles. Mr Sedgwick also gave evidence about the damage he observed to the centre of the metal storage racks, which he regarded as “odd” when he encountered it. He noted that the ends of the metal rods were undamaged but the centres were melted through. Various items of machinery including aluminium saws and casing components were also melted on one side. Mr Sedgwick said that in his opinion it was unlikely that accelerant would have been washed outside to the point at which it was found near the hole in the wall as a consequence of fire fighting activities. This was because the fire hoses were directed inwards towards the seat of the fire.

68 In contrast to the position taken by the prosecution, the appellant argued that thinners could have been present in relevant parts of the premises without being deliberately spread. He emphasised particular aspects of the evidence including the fact that Ms Cashman said that the factory contained “abundant” supplies of flammable fuel including wooden support beams, wood off-cuts, glues and paint thinners. Mr Brown gave similar evidence in which he said that large stockpiles of timber were kept on-site and used in the course of the appellant’s business. Flammable materials including paint thinners, primers and similar products were scattered about the factory and not stored in any methodical fashion. The premises were a “mess” and there was no area in the premises free of flammable materials. Because the premises were a commercial joinery, he said that they would always smell of paint thinner. The appellant also emphasised that when cross-examined, Mr Sedgwick conceded that accelerants could have occurred both inside and outside the factory premises in the normal course of business and/or could have been washed outside during the fire fighting efforts. Mr Nash made a similar concession. He accepted that the presence of thinners in the appellant’s factory was not surprising. He was unable to exclude the possibility that the accelerant found in the upstairs office originated in a sample tin of paint thinner stored in a cupboard which was destroyed in the fire. He agreed that he had no way of knowing whether the accelerant found in the gully outside the wall had any connection with the fire and whether “it had been there for some time before the fire started”.

69 The factory premises were built in the early 20^th century. From 1927 they were used as the premises of Les Robbins, a shop-fitting business which the appellant’s company purchased in 2000. The possibility cannot be excluded and furthermore it would seem likely that highly flammable materials and their residues had accumulated at the site over the course of many decades. This is consistent with the evidence of Mr Godden who said that the fire burnt for a long time due to the materials used in the factory itself. It would seem inevitable that the use of the premises for the manufacture of timber products over a lengthy period of time would have resulted in a residue of paint thinners and similar flammable liquids accumulating throughout the building. I also accept that once the fire had taken hold, the efforts to extinguish it with water from high-powered hoses would have been likely to disperse flammable liquids throughout the building.

70 There is one aspect of this evidence which is difficult to resolve. If accelerant was spread in a line passing through the centre of the metal store, as the evidence of Ms Cashman and Mr Sedgwick indicates, then bearing in mind the nature of the damage to the metal storage racks there would have had to have been enough accelerant to sustain an exceptionally hot fire for a prolonged period of time. Yet the evidence of Mr Nash was that not a trace of flammable liquid was detected in the metal store.

Conclusion: Did the appellant spread paint thinners?

71 If it is accepted that there was a deliberate trail of accelerant spread in the manner contended, the question is, was it the appellant who laid the trail. In his first ERISP, which was tendered at the trial, the appellant said that he was the last to leave the factory premises on 31 May and had secured the premises and set the alarm before leaving. The Crown submitted that it must follow that the appellant was the only person who had a realistic opportunity to spread the accelerant. Because of their concentration the Crown submitted that if thinners had been accidentally spilt on the evening of 31 May, the appellant or someone else would have been alerted because of the powerful smell. Mr Sedgwick’s evidence was that accelerant could have been spread around the premises some time before the fire was lit and that the evaporation would have slowed due to low overnight temperatures. The evidence of Mr Nash confirmed this.

72 Counsel for the appellant submitted at trial and on appeal that, just as thinners could have accumulated over time at the position where they were detected near the hole in the wall, they could also have been spread by arsonists. Similarly, just as a sample can of paint thinner might have been stored in a cupboard in the upstairs office, paint thinner might also have been spread in that area by an arsonist. Mr Sedgwick accepted that the liquid found outside the hole in the wall could have been splashed (by intruders inside the premises) and found its way to the location at which it was found outside. He accepted that his conclusion (that it was unlikely that intruders scattered accelerant around the premises before igniting it) was based solely on the evidence of the triggering of the alarm system, in relation to which he was not an expert.

73 The appellant submitted that it was illogical to suggest that the appellant spread accelerant around the premises up to 8 hours before the fire was lit. In addition to the absence of any direct evidence that the appellant spread the thinners, he emphasised that there was evidence that the appellant activated the alarm at 6.39pm using his own code – a fact said to be inconsistent with a plan to set fire to the premises. Furthermore, Mr Brown gave evidence that paint thinners evaporate reasonably quickly and faster than turpentine. In addition, Mr Sedgwick conceded that because he did not know, firstly, when the accelerant was spread, or secondly, the rate at which paint thinners evaporate, he could not reliably conclude that the accelerant was spread at an earlier time and if so, whether it had evaporated by the time of the fire.

74 It emerged from the account of the events given by the appellant in his second ERISP that Mr Michael Jovanovich, a business associate of the appellant, could have been with him before or at the time the appellant left the factory at about 6.39pm on 31 May. Mr Jovanovich did not give evidence. However, it was agreed that he was 15 minutes away from the factory at 6.05pm. If Mr Jovanovich was present at the factory shortly after this time he would presumably have noticed the smell of accelerant. Mr Brown also said that he may have been at the factory as late as 6.00pm. In the appellant’s submission if this was the case and if the accelerant had already been spread he too would have noticed the scent of accelerant.

75 Because the appellant accepts that he was the last to leave the premises, that he set the alarm using the relevant security code, and that the alarm was not triggered until the fire had taken hold, it would seem likely that, if accelerant was deliberately dispersed, this must have been done by the appellant or by someone who was with him at the time. If it was the appellant or someone with him who spread the accelerant, he took risks, possibly significant, that he may have been detected.

76 Ultimately I have found myself unable to conclude that accelerants were deliberately dispersed or that the appellant was responsible for dispersing them. The factory had been used as a joinery for a long time and paint thinner and similar materials must have accumulated throughout the premises over a lengthy period. It would also seem improbable that the appellant would spread accelerant and then leave the premises returning in the middle of the night to light a fire. Leaving the premises with accelerant spread for many hours risked the possibility of someone with a key returning and discovering the state of the premises. The sequence of events suggested by the Crown would be a crude and to my mind unlikely sequence for someone intent upon deliberately destroying the building.

Element 2 - Lighting the fire

77 The second element identified in the Crown case was that the appellant, or someone at his instigation, lit the fire through the hole in the wall in the early hours of 1 June. I have already considered the appellant’s submission that the issue of a joint criminal enterprise should not have been left with the jury. The relevant question is whether the fire was lit in the manner contended by the Crown. However, even if it was lit at the point of the hole in the wall, this does not lead inevitably to the conclusion that it was the appellant or an accomplice who lit it.

The course of the fire

78 The Crown case was that the fire was lit by passing ignited accelerant through the hole in the wall from where it spread to other parts of the premises.

79 It is apparent from a careful review of the map drawn by Mr Hood that Mr Hood first saw the fire burning at or very near to the hole in the wall.

80 Ms Cashman’s evidence was that the fire started in the ground floor metal store, possibly through the hole in the wall. She expressed no view as to the means by which the fire was lit. Due to the relatively low level of damage sustained to the front garage area, Ms Cashman eliminated that area as the origin of the fire. She also eliminated the reception area because if the fire was lit there, it would have spread further into that room. Ms Cashman also would have expected far more damage to the upstairs office if the fire originated there. In her opinion the burn patterns indicated that the fire started in the metal store. In her evidence Ms Cashman recorded the remarks of the fire officers said to have been first on the scene. The transcript of her evidence reads:

“The first fire brigade officers at the scene told me that when they arrived at the building they saw a plume of smoke emanating from the roof of the building at that northern third, just behind the two story [sic] office section. They also told me that they had opened the pedestrian door to the workshop third of the building and did not see any fire activity. They then cut a hole in the garage door of the middle third of the building. They saw a lot of smoke but did not see any fire activity. When they moved around to the north side of the building, they saw fire activity in that third of the building. These observations are consistent with the fire starting in that aluminium storeroom.”

81 Mr Sedgwick’s evidence was that the fire was lit at the hole in the wall. He said that the hole in the wall and corresponding hole in the external fence allowed a person to approach the premises without being seen and to introduce an ignited accelerant through the wall, “possibly into the timber store via a hole in the internal partition wall.” Mr Sedgwick accepted a proposition put to him in cross-examination that he could not precisely identify where the fire started and therefore could not definitely state how it was lit. In particular he accepted that he could not express a concluded view as to whether the fire was ignited from within or outside the factory premises.

82 Mr Nash said in chief that in his opinion the fire was ignited from outside the building at the location of the hole in the wall and started in the general region of the middle store area. However he conceded in cross-examination that he could not be conclusive on the issue of where or how the fire was lit.

83 A number of witnesses gave evidence as to their opinion as to the course the fire took as it progressed through the premises. Ms Cashman’s evidence was that the fire travelled from the metal store towards the rear wall of the ground floor office before rising through the wall to the office upstairs. She formed this view having regard to a number of matters. She said that the damage to the timber store was so extreme due to the large quantities of flammable materials located in that area that it was difficult to determine in which direction the fire was heading when it coursed through the timber store. The burn pattern on the wall frame between the wood and metal stores indicated that the fire had burned for a longer period of time on the metal store side of the room than on the timber store side. This led Ms Cashman to conclude that the fire had moved from the metal store to the timber store. The downstairs reception area sustained smoke and water damage but comparatively little fire damage. The only area that was directly affected by fire was the rear wall of the office which was almost completely burnt away. There were also some scorch marks along the carpet tiles. Her view was that the fire impacted the rear office wall from the metal store side of the premises. The downstairs office sustained damage to the rear wall (which adjoined the metal store) and scorch marks along the carpet tiles but otherwise was only affected by smoke and water damage. The stairway leading to the upstairs office was affected by soot and water damage only. The upper office was more heavily damaged than the downstairs office. The tin sheeting lining the back wall was “almost completely missing” with the frame and lining having burnt away. While much of the room was burnt, the items closest to the rear wall were most heavily affected and the damage decreased progressively from the back wall, indicating that the fire burnt the back wall and then passed to other parts of the building. Ms Cashman’s view was that the greater degree of damage experienced in the upstairs office was due to the fact that fire spreads upwards and outwards.

84 Based on the char depth and burn patterns in the workshop area, Ms Cashman’s opinion was that the fire had travelled into the workshop from the side of the building. Her evidence was that the “fire indicators” suggested that the fire had entered the front garage area from the northern third of the building (which contained the spray booths, timber store and metal store).

85 Mr Sedgwick was of the opinion that the fire followed a path from the hole in the wall to the ground floor office. He emphasised that there was a dust hopper located at the rear of the factory. The burn patterns affecting a metal inlet duct adjacent to the hopper indicated that the fire entered the hopper via the building, not the reverse. Mr Sedgwick found, as did Ms Cashman, that there was a “clear burn trail from the centre of the timber store through the middle of the storage racks to the back wall of the ground floor office.” In his opinion, the fire trail was along the floor of the metal store in a near-straight line from the back of the store to the rear wall of the reception and office area.

86 Mr Sedgwick’s interpretation of the burn patterns affecting the rear wall of the ground floor office led to him conclude that the fire had not started in the downstairs office but had spread to the office from the metal store. This observation is consistent with the evidence of Ms Cashman. Mr Sedgwick believed that the downstairs office and reception areas experienced only moderate smoke and heat damage apart from the rear wall which was entirely burnt out. This evidence was also consistent with that of Ms Cashman. The carpet tiles lining the downstairs office were not burnt but merely singed, which he suggested indicated that the fire “flashed across from one side to the other” before self-extinguishing. The upstairs office furnishing, walls and ceiling were completely destroyed by fire. There were four timber studs on the southern side of the building. Those directly opposite the timber store were severely burnt at the tops. Those at either end were charred but not burnt away and on the basis of this Mr Sedgwick formed the view that the fire burnt longer in the “centre north” of the factory.

87 A Mazda truck parked immediately inside the building’s loading dock and facing the rear was only lightly affected by fire. A Toyota truck which was parked in front of the Mazda experienced severe damage to its cabin but its tray was far less affected. This suggested that the cabin was facing the source of the heat. Burn patterns found on a wooden toolbox taken from inside the Toyoto also suggested that the heat was coming from the rear of the factory towards the front of the factory.

88 In Mr Sedgwick’s opinion, the burn patterns affecting the interior walls of the front loading dock indicated that the fire spread from the rear towards the front of the building. All of the wood in the timber store was severely damaged. However a small timber stack located on the northeastern corner of the timber store was burnt in a peculiar fashion. Three corners of the stack were “in perfect profile” however the corner closest to the external wall of the timber store was burnt away. This suggested that the fire had travelled around the corner of the timber stack. Mr Sedgwick concluded that this “indicated that the seat of the fire was fairly close to that point” although he was unable to “pinpoint it within an inch or so.” It should be remembered that Ms Cashman’s evidence was that the damage to the timber store was so great that it was difficult to determine the direction of the fire in that room. When cross-examined, Mr Sedgwick agreed that he had described what he saw at the factory premises as an “apparent” fire trail because he could not be completely certain that there was in fact a fire trail.

89 Mr Nash’s evidence on this issue was more limited. His analysis of the burn patterns on the downstairs office carpet tiles indicated, as I have related, that the tiles experienced “low level short term combustion” which involved the fire flashing across the tiles without igniting them. This evidence was consistent with that of Mr Sedgwick and was not contradicted by the evidence of Ms Cashman. Mr Nash’s explanation for the upstairs office sensor being the first to activate was that the fire in the metal store generated heat the vapours of which permeated the upstairs office, causing the sensor to alarm. Counsel for the appellant submitted that this opinion did not take into account (a). the fact that the passage from the metal store to the upstairs office was obstructed by metal sheeting and a gyprock wall and (b). the evidence of Mr Mosslar that the sensor could not be activated by vapours. Mr Nash had assumed that vapour had the capacity to upset the sensor in the upstairs office. He agreed that there was “[c]ertainly no clear path” enabling vapours to travel from downstairs to the upstairs office. When counsel for the appellant suggested that he was merely speculating about a sensor of which he had no personal knowledge, he agreed. Significantly, Mr Nash accepted the proposition that “the opinion [he had] expressed is one that [he] certainly could not entertain beyond reasonable doubt” because it depended “firstly, upon the capacity of the vapour to upset the particular sensor”, secondly “upon the source of ignition being in the metal store area near the hole in the wall” and thirdly “upon the progression of the fire in the manner in which (he had) expressed an opinion”. Counsel for the appellant drew to the attention of Mr Nash the video recording taken by Mr Hood, and the relevant evidence of Mr Freeman, both of which Mr Nash was unaware.

90 Constable Lupton said in cross-examination that most of the smoke and flames he saw when he arrived at the scene were coming from the right hand rear side of the property.

91 Mr Godden said that when he arrived the full length of the workshop was fully alight and the roof had already collapsed. However, fire had not taken hold in the office section.

92 Captain Dew observed black smoke billowing around the inside of the downstairs and upstairs office areas. His evidence at trial was that the fire seemed to be most active in the centre of the building. Counsel for the appellant reminded Captain Dew of the evidence that he had given in earlier coronial proceedings that the fire was at its most intense in the “paint store loading dock rear”. He agreed, firstly, that his view of the property was obstructed by the fire, and secondly, that his prior evidence may have been more accurate.

93 Mr Sedgwick did not arrive in time to see the blaze, but when he first arrived at the scene he took note of the observations of the fire crew, which included a report that upon arrival “the fire was through the roof in the middle of the northern side of the factory building”.

94 Mr Freeman had an elevated view of the fire scene. He saw the fire burning on the western side of the factory, at the wall closest to his block of units. The flames, although not initially very high, soon seized the aluminium fence running between the factory and Velacia Place. His evidence was that the fire appeared to commence at the rear of the factory (in the area closest to his block of units) and then spread down both sides of the building.

95 The evidence given by the various witnesses as to the commencement and course of the fire is in parts difficult to reconcile. This is unsurprising given that no two witnesses saw the fire at the same time from the same vantage point. In summary Ms Cashman, Mr Sedgwick and Mr Nash all believed the fire took hold in the metal store. However, none of those witnesses were present at the scene of the fire at the time the fire was lit or shortly thereafter. Mr Hood, who was awoken by the fire and who videotaped parts of the fire, said he first saw flames at a location approximate to the hole in the wall. Mr Freeman said he first noticed the fire taking hold at the rear of the complex. Constable Lupton said that “most” of the smoke and flames he saw when he arrived were emanating from the right-hand rear side of the factory and to this extent his evidence is consistent with that of Mr Freeman.

96 Ms Cashman’s view was that the fire travelled towards the front of the building before progressing upwards. Mr Sedgwick also believed that the fire spread from the metal store area towards the front of the building. Mr Freeman said that the fire travelled from the rear of the complex to the front, although as he recalled it, the fire spread down both sides of the factory.

97 Counsel for the appellant submitted that consideration of all the evidence led to the conclusion that the fire commenced at the rear of the factory premises and gradually progressed towards the front. Counsel submitted that the evidence of Mr Freeman was to be preferred over the relevant evidence of Ms Cashman, Mr Sedgwick and Mr Nash. Mr Freeman was awake and alert at all relevant times and from his balcony enjoyed an unobstructed view of the factory premises and the fire. He witnessed the fire in its early stages and because he was elevated, was in a position to view the course of the fire. Counsel also suggested that nothing said by Mr Hood in his evidence was inconsistent with Mr Freeman’s evidence. In particular Mr Hood’s tape recording was taken when the fire was “well and truly alight”.

The possibility of forced entry

98 There is some confusion as to the state in which the glass sliding doors at the front reception area (“the front doors”) were found when the authorities first arrived at the scene. The matter requires resolution. Constables Lupton and Seale were the first to arrive at the fire scene at approximately 3.00am on 1 June. Fire officers did not begin to arrive until 3.06am. Constable Lupton said that when he arrived he saw the front section of the building and as far as he could see, no front doors were open. He said that some 10 to 15 minutes later someone, possibly Captain Dew, informed him that the front doors were open. However in cross-examination he stated that the door that was said to be open was a door at the rear of the premises. Constable Lupton did not observe the position of that door.

99 The evidence of Captain Dew was that “early in the piece” he was informed by one of the fire fighters under his command that the front doors were open. He proceeded to the reception area and observed this. He also saw smoke escaping through the front doors. However at this stage he said neither the downstairs nor upstairs offices contained any fire. The open front doors, together with Captain Dew’s observation of a utility truck parked on the front driveway, caused him to record the fire as suspicious. When cross-examined he said it was unusual to see an open door at a fire scene. In re-examination he said that he saw no signs of forced entry at the front of the building.

100 Ms Cashman’s evidence was that the front doors had soot on the inside but were entirely clean on the outside. According to the Crown this indicated that they had remained closed for most of the fire and sprung open as it was subsiding.

101 Mr Brendan Moore, Managing Director of Bright Light Electrical Pty Ltd, gave evidence that his company had installed VWN Automatic Doors at the factory premises (i.e. the front doors). VWN doors are connected to the mains power supply but also contain a 12-volt backup battery which is charged automatically. If mains power to the front doors was lost shortly before or during the fire, his evidence was that they would remain shut unless for some reason the backup battery failed. If that occurred, the doors would open. In cross-examination Mr Moore admitted that he did not examine the doors personally after the fire and it may have been up to 5 years since anyone from his company had inspected them.

102 The Crown contended that the doors sprung open as the fire was subsiding and the factory’s service fuses were pulled and the backup battery failed. This explanation seems to be reasonable.

The alarm system

103 Mr Mosslar’s evidence was that the alarm system was made active at 6.39pm on 31 May; that it sent a routine test signal to the monitoring centre at 2.23am; that it commenced sounding alarms at 2.52.13am; and that nothing had set it off between 6.39pm and 2.52.13am. The Crown asserted that the alarm system was working properly at the relevant time.

104 The evidence of Mr O’Brien and Mr Brown was that in the months preceding the fire, a number of apparently false alarms had occurred in the middle of the night. The appellant appeared to confirm this in his first record of interview, where he said that he had been advised to spray insect spray around the sensors to prevent spiders crawling across them. The alarm system was not installed in compliance with relevant Australian Standards. A careful reading of the transcript of Mr Mosslar’s evidence indicates that he did not confirm that the entire alarm system was operational at 2.23.21am; only that the phone line to which the system was connected was working. This leaves open the possibility that the alarm system was malfunctioning at the time of the fire, which the appellant says explains the fact that the upstairs sensor was the first to activate.

105 The sensor in the upstairs office activated 2.52.13am. It restored itself but reactivated at 2.53.19. At 2.53.20, one second after the upstairs office sensor reactivated, the sensor in the rear loading dock downstairs activated. This sensor restored itself by 2.53.49. Three seconds later, at 2.53.52, three sensors activated at the same time: one in the rear loading dock (which had just restored itself), one in the front loading dock, and one in the rear workshop.

106 Mr Mosslar’s evidence was that after the initial activation of the zone 6 sensor, the system was “affected by some phenomenon that prevented [it] from working properly.” His opinion was that this response would be expected if the fire had commenced in an area not covered by a sensor (the metal store is one possibility) and then melted the wiring to the alarm system before the heat reached the sensors. He said the system was set up in such a manner that a person aware of the locations of the sensors could have used a sheet of asbestos (or other material that did not conduct heat) to obscure him- or herself from the view of the sensors. The Crown Prosecutor submitted in his closing address that the simultaneous activation of multiple alarms in different zones was consistent with the melting of electrical wires and consequent failure of the alarm system.

107 Counsel for the appellant submitted that the recorded occurrences of the alarm system did not support the Crown’s case that the fire was lit adjacent to the hole in the wall. This was for various reasons. The sensor which activated first was in the upstairs office, a “fair distance away” from the metal store, although the precise distance was not specified. There were other sensors closer to the hole in the wall which were not initially activated. Second, the responses of the first sensor (activation, restoration and reactivation only seconds later) as Mr Mosslar conceded were more consistent with human movement than the presence of fire (or heat generated from fire). If fire or heat activated the sensor, the sensor would not be expected to restore itself (because that would mean the movement had ceased or passed by) but would keep activating. This point was revisited in Mr Mosslar’s re-examination. The relevant exchange reads as follows:

“CROWN PROSECUTOR

Q. The next question is if it was a human being that human being at what stage had he activated sensor number 6 for the second time?
A. So at 2:53:19 was the second alarm for the upstairs detector.

Q. That human being if it was a human being at what stage had he activated alarm number 2?
A. One second later, 53 and 20 seconds.

Q. So the movement between point 6 and point 2 was one second?
A. Close to or very quick.

Q. Secondly, the activation at 52, that is at 2:53:52 in word the activation of three zones, 2, 1 and 7 on the same second?
A. Yeah, all vents came through at exactly the same time.

108 The evidence of Mr Nash given in cross-examination is similar. He accepted that fire activity would be expected to produce a continuous response from the relevant sensor.

The point of ignition

109 After considering all of this evidence I believe it is likely that the fire started in the metal store area and progressed towards the front of the factory before spreading upwards. I accept that Mr Freeman was in a good position to observe the course of the fire as it was taking hold. However at the time Mr Freeman first caught sight of the flames the roof of the complex was still intact and would have obstructed his view. There is reason to accept that the fire started at the hole in the wall but I could not be certain that this occurred.

Did the appellant light the fire?

110 The factory was severely damaged by the fire and no obvious signs of break in by an intruder could be found. Although the front doors were open, as I have indicated, this could have been caused when the electricity to the building was lost.

111 The Crown submitted that by the time the first alarm sounded at 2.52am, “the building must have been blazing intensely” and that it is unlikely that an intruder “who had somehow reached the upstairs office without setting off any other alarms” would remain inside the premises. This submission was based on the evidence of Mr Nash, who said that a person could not enter the front doors and walk to the bottom of the internal stairs without activating the detector located in the reception area. Nor could that person, having entered the premises through the upper level office, proceed to the rear loading dock without activating the detectors in the reception and front loading dock.

112 Mr Sedgwick conceded that unknown intruders often do start fires. However, his evidence was that he did not believe that an intruder(s) could have started the fire because the alarm system event report indicated that alarms were activated in different areas of the premises almost simultaneously. In his view an intruder(s) “would have had to have been very quick to spread a flammable liquid in the area stated as indicated by the event log of the security log, ADT, activating the upstairs office first, then the loading dock rear and the loading dock front.”

113 Counsel for the appellant drew attention to the fact that there were a number of “blank spots” in the factory which were not covered by alarm sensors. These included the spray booths, timber store and metal store. It was submitted that if the alarm system was functioning properly at the relevant time then it was more likely that the initial activation of the alarm at 2.52am was caused by an intruder (who had accessed the premises through a blank spot) and not by fire. Mr Mosslar was unable to conclusively reject the suggestion that an intruder entered the premises shortly before 2.52.13 and ignited the fire at or about 2.53.52.

114 Mr Freeman’s evidence was that roughly 15-20 minutes before he saw the fire from his unit window, he heard some banging noises coming from outside the western side (rear) of the factory. Suspecting someone may have been attempting to break into a parked car, he looked outside but did not notice anything of significance. Mr O’Brien’s evidence was that he heard a vehicle leaving at speed 15 minutes before he first heard the alarm. These observations are consistent with the theory that an intruder gained access to the premises and set the fire before departing in a hurry.

115 Counsel for the appellant submitted that evidence of forced entry could have been lost as a consequence of the extensive damage caused by the fire, including the collapse of the roof area. Mr Nash conceded this possibility in cross-examination, agreeing that he could not be definitive as to whether there had been forced entry.

116 There were a number of steel-framed windows on the southern wall of the factory premises which the evidence indicated were originally covered with wire mesh. Mr Nash conceded in cross-examination that none of these windows were in situ after the fire. He accepted the proposition put to him by the appellant’s counsel that “there could easily have been some forced entry through one or more of those windows”.

117 The Crown emphasised the opportunities that the appellant had to set the fire. As I have related, it was agreed that the appellant was in Dixon until roughly 1.00am on 1 June and that he had returned home and was in bed by 2.00am. The evidence was that the drive from the restaurant to the factory premises took just under 18.5 minutes. The appellant’s home was approximately 600 metres from the factory, a journey of 1 minute 8 seconds by car. On the basis of this evidence the Crown submitted that the appellant had two windows of opportunity in which to light the fire. He could have driven directly from the restaurant to the factory and set the fire between approximately 1.20 and 1.30am before returning home. The alternative possibility was that he drove home from the restaurant, where he remained until at least 1.30am, and then, some time between 1.30 and 2.00am, drove or walked to the factory to light the fire.

118 As I have related at [19] Mr O’Brien’s evidence was that at approximately 1am he heard his neighbour returning home from work. He remained awake for about half an hour. Some time later (Mr O’Brien could not say whether he had been asleep or not) he heard a vehicle which he inferred to be leaving the factory at speed. He heard the vehicle brake hard and slide in the gravel at the foot of the driveway before taking off at speed down Stornaway Road towards Canberra Avenue (in the direction of the appellant’s residence). His evidence was that he heard the first alarm 15 minutes after hearing that vehicle. This would mean that Mr O’Brien would have heard the vehicle leaving the factory at approximately 2:37am. In this event the agreement by the Crown that the appellant went to bed at approximately 2.00am on 1 June 2004 has particular significance. The Crown never suggested that having gone to bed he got up again to set the factory on fire.

119 Counsel for the appellant submitted that if the appellant was intent upon burning the factory, it made no sense for him to go home at 1.30am, kiss his child (who was sleeping in the appellant’s bed with the appellant’s wife) and possibly wake his wife, only to sneak out again. Furthermore, the evidence of Mr McGale was that the electric gate through which the appellant would have had to pass to exit his premises was extremely noisy. However, there was no evidence that anyone heard noise created by the gate’s electric motor between 1.30 and 2.00am.

120 Because of the concession that the appellant was in bed by 2.00am, the Crown case was that the fire was ignited either between 1.20 and 1.30am or between 1.30 and 2.00am. Yet the upstairs office sensor was only activated at 2.52.13am. Accordingly, if the appellant lit the fire there must have been a delay of at least 52 and at most 90 minutes between the time of ignition and the time of the fire’s initial detection. There is force in the appellant’s submission that in a factory premises replete with flammable materials it is almost inconceivable that a fire would smoulder quietly for up to an hour without being detected before erupting into the inferno described by Captain Dew when he arrived on the scene.

121 In my view, it is not possible to find beyond reasonable doubt that the appellant lit the fire. I am satisfied that the alarm system at the premises was working at the relevant time although it was not installed in compliance with the relevant Standards and left areas of the premises unmonitored. I cannot exclude the possibility that an intruder may have accessed the premises without at least being initially detected. This is consistent with the evidence of Mr Freeman.

122 Although it is possible that the appellant planned the fire and another person lit it I am satisfied that it would be unreasonable to conclude that this is what happened. The Crown has been unable to identify any other person and beyond the fact that a vehicle (which could not have been that of the appellant) apparently came to the premises before 11 pm, there is nothing to indicate who may have been at the premises or their reason for lighting the fire.

Motive

123 The appellant had plans to demolish the factory, relocate the Picasso business to more modern premises and redevelop the factory site. The quote for the demolition placed the cost at between $17,000.00 and $37,000.00. The Crown case was that by destroying his factory by fire and receiving up to $1.75m from the proceeds of the business insurance policy the appellant would be spared the demolition costs. As I have related, the development project was in its infancy. At the time of the fire the appellant had neither located new premises for Picasso nor received the Council’s approval for the Kinkora development.

124 Although at trial there was some suggestion that the appellant was in financial difficulty, the Crown subsequently conceded that he was not. The evidence of the appellant’s personal affairs did not indicate financial difficulty. There was no evidence of any default on outgoings such as bills, mortgages or private school fees. The evidence (including that of Ms Joli who arranged the relevant insurance policy for the appellant) was that the appellant’s business was profitable. It had many existing and upcoming contracts, including lucrative work for the ACT Government.

125 Mr Martin and Mr High, both Picasso employees, gave evidence that May 2004 was a particularly busy time at Picasso. In the months preceding the fire they were frequently required to work overtime and on some weekends. Their evidence was that they were paid far more at Picasso than they were at their subsequent places of work.

126 The insurance cover issued under the GIO policy was less comprehensive than that which was available under the appellant’s previous Allianz policy. In particular, stock was insured for market (not replacement) value. Mr McGale’s evidence was that the factory contained a vast amount of expensive and irreplaceable machinery and equipment upon which the future viability of the Picasso business depended, including two large table saws, a large edge bender, a planer and sander. Some of the tools and equipment stored at the premises was said to date back to 1927. These items were all destroyed in the fire along with personal effects, computers and some office records.

127 Counsel for the appellant submitted that there was evidence of a motive in others to light the fire. In his first ERISP the appellant said he received a threat from a plumber and drainer by the name of Mr James Allan. Mr Allan performed some work for the appellant between August 2001 and 2002. There was a dispute in relation to that work which caused Mr Allan to bring legal proceedings against Picasso. Those proceedings were well underway at the time of the fire. The appellant and Mr Allan had not spoken for approximately two years prior to the fire. The evidence was that in early 2002 the appellant had a telephone conversation with Mr Allan during which Mr Allan threatened to set fire to the appellant’s factory. The relevant portion of the ERISP reads:

“A: … He said, if I’m not gunna get your cheque I’m gunna pour the petrol in drainage and burn it. I said, Jummy, I think you’re a bit smarter than that, you’d better calm down and just finish the job …

DETECTIVE SERGEANT BARCLAY

DETECTIVE SERGEANT WALPOLE

Q555: OK.”

128 Police interviewed Mr Allan on 21 June 2004 and put to him the allegation that he threatened the appellant (which he denied). Mr Allan gave evidence at the trial. He denied having threatened the appellant or his factory. His evidence was that in May 2002 one of his employees, Mr Gavin Sheppard, made a tongue-in-cheek remark to the effect that if the appellant was tardy with payment “we can pour petrol down his drains and set fire to [the factory].” At the trial he said he informed Detective Sergeant Walpole before the interview commenced that the remark was a tongue-in-cheek remark made by one of his employees. However this was not in his statement. His evidence was that on the night of 31 May 2004 he was at home with his wife some 30 kilometres from Queanbeyan, and went to bed at approximately 10.30pm.

Credit

129 In the appellant’s first ERISP he stated that he was certain he was the last person to leave the factory premises on the evening of 31 May. In his second police interview held on 4 November 2004 the matter was revisited and the appellant said Mr Jovanovich may have been with him when he left the factory. It was agreed that at 6.05pm on 31 May 2004 Mr Jovanovich was in Phillip, which is 15 minutes away from the factory. The Crown Prosecutor treated this inconsistency as raising a question in relation to the appellant’s credit but agreed that it was open to the jury to find that the appellant was innocently mistaken at the time of the November interview. Counsel for the appellant submitted that this inconsistency was to be expected. When the appellant was originally asked about his movements the previous night, the events were fresh in his mind. By the time of the second police interview some six months later the appellant had answered hundreds of questions by police and insurance investigators and was also undergoing psychiatric treatment.

130 In my view, nothing turns on the inconsistency between the contents of the two interview transcripts. I certainly could not conclude that the reference to Mr Jovanovich in the second interview was a deliberate fabrication. Legitimate misrecollections are always possible in these circumstances and there is nothing to suggest that the appellant deliberately lied. Indeed I have concluded that in his interviews the appellant was frank and open. I can discern no attempt to answer in a manner which avoided a possibly damaging admission or created a false account which was to his advantage.

131 There was significant evidence of the appellant’s good character. Detective Sergeant Kay took over conduct of the police investigation in 2004. His evidence was that he had been a Detective Sergeant in Queanbeyan for many years and had never encountered the appellant in adverse circumstances. The appellant had not previously been in trouble with the police.

132 Mr John Storm who had dealt with the appellant over a number of years, gave evidence that the appellant was a man of honesty and integrity, someone whose business he actively pursued when he commenced employment at Bendigo Bank.

133 Mr McGale was a “senior entrusted employee” of Picasso. The fire caused Mr McGale significant financial loss. His expensive tools were destroyed and, in addition, because there was no work available for him at Picasso after the fire he was forced to pursue a new career. He spent three years studying information technology during which time he was unemployed. Mr McGale was a close friend of the appellant and his family. He described the appellant as a good father, a good friend and a good employer. It was the appellant who arranged the “perfect job” for Mr McGale at Picasso (whose mobility had been restricted due to spinal injury). Mr McGale’s evidence was that the appellant was proud of his business and worked very long hours in an attempt to restore it after the fire. He regarded the suggestion that the appellant was involved in the fire as “absurd”.

134 The appellant cooperated with the police and insurance authorities at every stage of the investigation. In his first police interview the appellant volunteered significant information about Picasso and other business ventures, his finances (both personal and business) and investments, insurance policies, employees and family. Anything that he could not immediately recall he was more than happy to supply. When he was asked in the course of the interview whether he would allow the fire brigade and police to examine the fire scene, he was quick to consent, remarking:

“Yeah, of course, it has to be done. It’s just, it’s in my interest to be investigated.”

135 The appellant attended a second interview 9 days later on 10 June 2004 with Mr Ian Dransfield of PricewaterhouseCoopers at which he was equally forthcoming. At that time, the appellant could not identify any enemies and appeared to have a wide circle of friends and acquaintances.

136 Various witnesses gave evidence about the appellant’s demeanour in the days and months after the fire. Mr Brown said that he saw the appellant crying on 1 or 2 June 2004. Mr McGale described the appellant as “devastated”, “quiet” and “very withdrawn” when he saw him on 1 June 2004, behaviour which he said worsened in the days and weeks that followed to the point that he believed the appellant became “almost suicidal”. Mr Martin’s evidence was that “a couple of days after the fire” he saw the appellant walking around the fire scene rubbing his face in apparent disbelief. Mr Storm, who continued to see the appellant in the weeks after the fire, said that he “let his appearance go”. Mr Godden said that when the appellant arrived on scene at approximately 9.00pm that night, he appeared distressed and agitated.

137 There is another matter which is inconsistent with the appellant having dishonestly set fire to the factory. It relates to the appellant’s mobile phone message log. The evidence, which was not refuted, was that the appellant placed his mobile telephone on the charger when he returned home from the restaurant in Dixon in the early hours of 1 June 2004 because the battery was low. The charger was situated near the appellant’s kitchen bench, which was downstairs relative to his bedroom. During the appellant’s first ERISP, the appellant assisted Detective Sergeant Barclay to access the phone’s SMS inbox, which contained a number of SMS messages received between the hours of 3.12am and 7.03am on 1 June. The messages related to attempts by ADT Security and by Mr Brown to contact the appellant. At the time of the interview, shortly before 10.00am on 1 June, the appellant had not read any of these messages.

138 I believe that it is most unlikely that if the appellant lit the fire, he then returned home, went to bed and completely ignored his mobile phone for many hours. A more likely scenario would be that he would expect to be disturbed and when telephoned would have hastened to the phone and at least retrieved the message. Even if he did not respond by going to the premises it would be extraordinary that he would not at least monitor the messages as they came in.

139 Mr McGale gave evidence that the appellant worked long hours in an attempt to salvage his business after the fire. This is inconsistent with a dishonest intention to claim under an insurance policy under which pro-rata business interruption costs were payable.

The appellant should be acquitted

140 After giving careful consideration to all of the evidence, I have a sense of real disquiet about the appellant’s conviction. I am not persuaded to the relevant standard that the appellant lit the fire. The suggested motive seems improbable. Although insured, the business was profitable and could have been relocated without the enormous disruption which the fire must inevitably cause. There is the real and not fanciful possibility that another person, with or without intent to harm the appellant, or out of a random act of vandalism, could have set the fire. I am satisfied that the doubts I have are doubts which the jury should have had.

141 In my judgment the appellant’s conviction should be quashed and a verdict of acquittal should be entered.

142 LATHAM J: I agree with the orders proposed by the Chief Judge at Common Law and with the reasons for those orders.

143 In particular, I am of the view that the basis of the jury's verdict is significant for the purposes of the third ground of the appeal. I accept the appellant's submission that it is reasonable to infer that the jury's verdict was founded upon the existence of a joint criminal enterprise.

144 Invariably, a Crown case based on joint criminal enterprise arises in circumstances where the accused and another, or other persons, are present together at the commission of an offence, and the accused does not perform the act constituting the offence. Such a case attracts the standard directions set out by Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 :-

145 In such a straightforward case of joint criminal enterprise, as the direction makes clear, the existence of the agreement and the participation in that agreement by the accused are matters of inference established by the circumstances in which two or more persons are participating together in the commission of the offence, and the presence of the accused at the time the offence is committed, coupled with intentional assistance to, or encouragement of, the other participant(s).

146 It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused is not present at the commission of the offence ; Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316 at 329-330, 350 ; R v Prochilo [2003] NSWCCA 265. However, the existence of the agreement or enterprise, and the participation in it by the accused in such a case cannot be inferred from the circumstances in which the offence is committed, because (to state the obvious) there is no evidence of what the accused said and/or did during the commission of the offence. The jury must look to evidence of events, other than those pertaining to the offence itself, for proof beyond reasonable doubt of the existence and scope of the agreement, and the accused’s participation in it.

147 In the instant case, there was a complete absence of evidence of that character. There was no evidence of the identity of a potential co-offender. There was no evidence of conversations between the accused and others that were capable of amounting to an agreement to commit an offence. There was no evidence of acts on the part of the accused, such as the transfer of a large amount of money to another or the purchase of material linked to the fire, that suggested an intention to carry out such an agreement.

148 In my view, the Crown was well aware of the difficulty it faced in satisfying the jury beyond reasonable doubt that the accused himself lit the fire. That difficulty is well illustrated by the matters outlined at [118] to [120] of the judgment of the Chief Judge at Common Law.

149 Faced with these irreconcilable aspects of the evidence, the Crown sought to sustain a secondary basis for a conviction, which was so tenuous that a no case submission was more than arguable, for the reasons I have given above.

150 The jury was obviously loath to convict the appellant on the Crown's primary case. The appellant's conviction on the secondary basis in the absence of any supporting evidence was unreasonable.

I agree with McClellan CJ at CL and with the reasons of Latham J.

**********

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Citations

Sever v R [2010] NSWCCA 135

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CITATION:	Sever v R [2010] NSWCCA 135
HEARING DATE(S):	16 March 2010
JUDGMENT DATE:	25 June 2010
JUDGMENT OF:	McClellan CJatCL at 1; Latham J at 142; Schmidt J at 151
DECISION:	The appellant’s conviction quashed and a verdict of acquittal entered.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - whether trial judge fell into error in permitting the jury to consider alternative case of joint criminal enterprise - whether trial judge erred in his directions as to joint criminal enterprise - jury likely to have convicted appellant on the basis of joint criminal enterprise - absence of evidence to hypothesise that another person involved in the offence - trial judge not in error by allowing the issue to go to the jury - CRIMINAL LAW - appeal against conviction - whether verdict unreasonable and incapable of being supported by the evidence - verdict not open on the evidence
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Barca v R (1975) 133 CLR 82 Beatson v R [2009] NSWCCA 288 Burrell v R [2007] NSWCCA 65 Carney v R [2008] NSWCCA 140 Chow v R (2007) 172 A Crim R 582; [2007] NSWCCA 225 Cittadini v R [2009] NSWCCA 302) Dodds v R [2009] NSWCCA 78 Doney v R (1990) 171 CLR 207; (1990) 96 ALR 539 Fernando v R [2008] NSWCCA 97 Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 Jones v R (1997) 191 CLR 439 Knight v R (1992) 175 CLR 495 M v R (1994) 181 CLR 487 McLeod v R [2008] NSWCCA 127 MFA v R (2002) 213 CLR 606. Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235 Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316 Peacock v R (1911) 13 CLR 619 Penney v R (1998) 155 ALR 605; [1998] HCA 51 Plomp v R (1963) 110 CLR 234 R v Docker [2005] NSWCCA 425 R v Habib [2005] NSWCCA 223 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v JMR (1991) 57 A Crim R 39 R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256 R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 R v Prochilo [2003] NSWCCA 265 R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404 R v Tangye (1997) 92 A Crim R 545 Sgardelis v R [2006] NSWCCA 338 Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 Tekely v R; Nagle v R [2007] NSWCCA 75 Thomas v R (1960) 102 CLR 584 Thornton v R [2007] NSWCCA 164 TK v R [2009] NSWCCA 151
PARTIES:	Zoran Sever (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/16269
COUNSEL:	W C Terracini SC/M P Tanevski (Appellant) P Miller (Crown)
SOLICITORS:	Goodhands Lawyers (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/16269
LOWER COURT JUDICIAL OFFICER:	Walmsley DCJ
LOWER COURT DATE OF DECISION:	11 March 2009