The State of Western Australia v Johnston
[2020] WASC 445
•4 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JOHNSTON [2020] WASC 445
CORAM: MCGRATH J
HEARD: 24 AUGUST 2020 - 11 SEPTEMBER 2020
DELIVERED : 4 DECEMBER 2020
FILE NO/S: INS 134 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
GREGORY PAUL JOHNSTON
Accused
Catchwords:
Criminal law – Trial by judge alone – Murder – Circumstantial evidence
Legislation:
Criminal Code (WA), s 279
Criminal Procedure Act 2004 (WA), s 118, s 120(2)
Result:
Verdict of not guilty on the count on the indictment
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Prosecution | : | Mr J C Whalley SC |
| Accused | : | Ms L B Black |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Hammond Legal |
Table of Contents
Introduction
Legal principles and general directions
Presumption of innocence, onus of proof and standard of proof
Verdict based on the evidence
Circumstantial evidence
Right to silence
Accused's records of interview
Assessing witnesses
Expert evidence
Character evidence
Transcript of testimony and witness statements received in evidence
Direction in respect of statements made by the deceased
Agreed facts
Elements of the offence
First and second elements – the accused killed the deceased
Third element – unlawful killing
Fourth element – intention
Alternative verdict
State's case
Indispensable links in the State's case
Circumstances relied upon – the State's case
Circumstance motive – relationship and financial
Motive – applicable principles
Evidence relevant to motive
Findings regarding motive
Circumstances of vehicle collision
First responders – crash scene and the appearance and nature of any injuries to the accused
Findings regarding the appearance of the accused and the nature of any injuries
Circumstance – the vehicle was deliberately driven into the tree
Explanations given by the accused regarding the collision
Police investigation
Investigation by expert crash investigators
Findings regarding expert evidence concerning the crash scene and the vehicle
Suicide – the deceased deliberately steering the vehicle towards the tree
Finding as to circumstance that the accused deliberately drove the vehicle into the tree
Did the green vehicle breakdown on 6 December 2008
Circumstance – incapacitation of the deceased
Position of the deceased's body in vehicle
Findings regarding incapacitation of the deceased and being unable to exit vehicle
Circumstance – the unlikelihood that the fire started accidentally
Cause of the vehicle fire
Findings regarding expert evidence concerning cause of fire
Circumstance – lies
Other lies – credibility
Consideration of the entirety of the evidence: has the State proven its case against the accused
Conclusion and verdict
MCGRATH J:
Introduction
Gregory Paul Johnston stands charged with one count that on 6 December 2008 at Borden he murdered Susi Elizabeth Johnston contrary to s 279 of the Criminal Code (WA).[1]
[1] Indictment dated 3 July 2018.
The accused pleaded not guilty to the count and proceeded to a trial before a judge and jury between 11 March 2019 and 5 April 2019. The jury were unable to determine a unanimous verdict and therefore were discharged. On 30 June 2020, the accused was granted a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA).[2] The matter proceeded to a trial before me between 24 August 2020 and 11 September 2020.
[2] Orders made by Corboy J on 30 June 2020.
The State's case against the accused is wholly circumstantial. The accused and the deceased, who were married with three adult children, lived together on a farming property in Borden. On 6 December 2008 the accused was driving a vehicle along a track on his farm property with the deceased seated in the passenger seat. The State's case is that the accused intentionally drove the vehicle into a tree and that prior to the collision, or immediately afterwards, the accused incapacitated the deceased by unknown means. The accused then did an act, which act is unknown, either immediately before colliding with the tree or upon colliding with the tree that caused the vehicle to be set alight with fire. The vehicle and the deceased were incinerated. The act of the accused that caused the fire is the act that killed the deceased.
The State's case is that the vehicle colliding with the tree was a staged incident. The State disavowed any reliance upon a pathway to guilt that the fire was merely a consequence of the vehicle being driven into the tree. The State does not contend that the act which killed the deceased was the act of negligent driving on the part of the accused.
The accused denies the allegation. The defence case at trial was that the accused did not incapacitate the deceased and did not drive the vehicle intentionally into the tree. Rather, the fire was an accidental consequence of the collision with the tree and not caused by an act of the accused (other than merely driving the vehicle when it collided with the tree).
For the following reasons I have determined that the State has not proven its case beyond a reasonable doubt and therefore the accused must be acquitted of the count on the indictment and of the statutory alternative offence of manslaughter.
Legal principles and general directions
Given that this is a trial by judge alone I must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.[3] If any written law or other law either requires information, warning or direction to be given to the jury in certain circumstances, or prohibits a warning from being given to the jury in certain circumstances, I must take that requirement or prohibition into account if those circumstances arise in the course of the trial.[4] I am required to state the principles of law that I have applied and the findings of fact on which I have relied upon in coming to the verdict.[5] I will at this juncture state general directions that I will apply. In the course of this judgment, I will state other principles of law and the directions that I must follow. I will not expressly state the words 'I so direct myself'. I will state the principles and directions at law that must be applied and I will apply those principles and directions in the reasoning process that I will disclose in these reasons for the verdict.
Presumption of innocence, onus of proof and standard of proof
[3] Criminal Procedure Act, s 119(1).
[4] Criminal Procedure Act, s 119(3).
[5] Criminal Procedure Act, s 120(2).
The accused is presumed innocent. The accused cannot be convicted of the count on the indictment unless the State has proved the accused's guilt beyond a reasonable doubt. The State bears the onus of removing the presumption of innocence by establishing guilt beyond a reasonable doubt. That burden of proof never shifts. The standard of proof of beyond a reasonable doubt is the highest standard known to the law. Before I could find the accused guilty of the count on the indictment I must be satisfied beyond a reasonable doubt of each element of the offence. If I am not satisfied to that standard then the verdict must be not guilty.
Verdict based on the evidence
I must consider this case based upon the evidence which has been produced in the trial. That is, the verdict must be based on the evidence that the State and accused have adduced at trial. I must assess the credibility and reliability of each witness. I must assess the evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. The accused has attracted media attention. To the extent that I have observed media reporting, I have put it out of my mind. I have not speculated about matters that are not in evidence.
I received oral submissions from counsel during the respective opening and closing addresses. I have considered the submissions from counsel but I am mindful that the submissions are not evidence and therefore the inferences and conclusions that may be drawn from the evidence are matters for my assessment and determination.
Having considered all the evidence, I may find the accused guilty or not guilty.
Circumstantial evidence
In a criminal trial facts in issue may be proven by direct evidence alone, by a combination of direct evidence and circumstantial evidence or by circumstantial evidence alone. The State seeks to prove its case against the accused by circumstantial evidence alone.
Circumstantial evidence is evidence of a fact or combination of facts from which another fact or facts may be inferred. Circumstantial evidence does not prove a fact directly, rather it increases the probability or likelihood that the fact in issue existed.
In a circumstantial case there may be components, being steps in a course of reasoning, which lead to a conclusion of guilt that are essential in proving guilt. Alternatively, a component may not be essential but rather contributes to the State's circumstantial case. If a component is essential to the proof of guilt then it must be proven beyond a reasonable doubt. If there are no essential links then the standard of beyond a reasonable doubt applies to the proof of the elements of the offence. This case has elements of both. I will particularise the components of the State's case that are indispensable to the proof of guilt when outlining the State's case.
Inferential reasoning is not speculative. The inference must be rational. That is, there must be a logical and rational connection between the facts that I find and the inference that I draw or the determination I make. There must be positive proved facts from which the inference could be made.
The inference or determination must be reasonable, which means that the inference or determination must not be based upon conjecture or speculation. Inferences can only be drawn if facts proven by the evidence properly support the drawing of the inferences.
The facts are not to be looked at in a piecemeal basis or in isolation. I am required to consider all the facts and circumstances as a whole to determine whether the particular inference adverse to the accused is the only rational and reasonable inference that the facts permit me to draw and that there is no inference consistent with innocence reasonably open on the evidence.
Before I make a finding by inference of any fact which constitutes an indispensable link in a chain of reasoning towards guilt, I must be satisfied that the inference is the only rational and reasonable inference, or conclusion, that can be drawn from all the facts established by the evidence. That requirement is no more than amplification of the rule that the prosecution must prove its case beyond a reasonable doubt.
When a case against an accused person rests substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, it must be the only rational inference that the proven facts enable me to draw.
Right to silence
An accused person has the right to silence. Therefore, an accused is not obliged to speak to the police or to give evidence at trial but may do so if they so choose. The accused elected not to give evidence at his trial. It is his right to not do so. No adverse inference can or should be drawn against the accused by him exercising his right to not give evidence. The election not to give evidence at trial is not an admission and must not be used in any way to strengthen the State's case. Therefore, in assessing whether the State has proven its case beyond a reasonable doubt I have not taken into account the fact that the accused did not give evidence at trial.
Accused's records of interview
The accused participated in five electronic records of interview (EROIs) on 5 January 2009, 25 May 2010, 20 February 2013, 12 September 2017 and 14 February 2018 respectively. The EROIs were edited by consent which is a normal procedure. No adverse inference against the accused may be inferred from the agreed edits to the EROIs.
The accused did not have to speak to the police. Insofar as in parts of the EROIs the accused stated that he did not have anything else to say, he exercised his right to silence. No adverse inference may be drawn against the accused for exercising that right.
In addition, the accused provided a written signed statement to the police dated 7 December 2008.[6]
[6] Exhibit 4, witness statement of the accused signed on 7 December 2008.
Whilst the accused's statements to the police in the EROIs and in his written signed statement were not made on oath they form part of the evidence that I will consider in determining whether the State has proved its case beyond a reasonable doubt.
If I accept the accused's answers to the police questions or his statement, I can take the answers or statement into account in determining my verdict. If I accept one or more of the accused's accounts as to the circumstances of the incident which are consistent with his innocence I will find the accused not guilty. If the answers or statement result in me having a reasonable doubt as to what the true position is then the accused is entitled to the benefit of that doubt and therefore is not guilty. That is, even if I do not believe the accused's answers or statement, I cannot find an issue against the accused contrary to his answers if his answers or any other evidence have given rise to a reasonable doubt on that issue. Even if I do not believe the accused's answers or statement it does not necessarily follow that the accused is guilty. The accused does not have to prove anything. The question will remain as being has the State, on the basis of the evidence that I accept, proved the allegation beyond a reasonable doubt.
Assessing witnesses
It is necessary for me to assess the credibility and reliability of the evidence of each witness and thereby determine the weight to be given to the respective witnesses' evidence. In determining credibility I am assessing the honesty of the witness. In determining reliability I am assessing whether the witness has given an accurate account of what happened. A witness may be honest but not reliable due to factors such as circumstances affecting memory. I will take into account any relevant factors in assessing the reliability of a witness.
I must consider the consistency of a witness's utterances on different occasions. I must consider whether the witness's testimony is consistent and if there are inconsistencies I must assess whether the inconsistencies are in respect of significant matters and determine if there is any reasonable explanation for the inconsistencies. I will consider whether the evidence of a witness is consistent with the evidence of other witnesses whose evidence I have accepted. If a witness's evidence is inconsistent that is a factor that I can take into account in assessing whether to accept the evidence of that witness. If the evidence given by a witness has been consistent on significant matters that may be a factor that supports the determination that the witness is telling the truth.
I have had regard to the demeanour of each of the witnesses in assessing the witnesses. I must be mindful that some witnesses, understandably, may feel apprehensive when giving evidence in a courtroom and this may affect the witnesses' demeanour and therefore should not necessarily reflect on their credibility.
I am able to accept all or part of the evidence of a witness or disregard all or part of the evidence of that witness. I am mindful that the evidence of a witness is the answers that are given in response to a question and not the question itself.
During the trial some witnesses were examined in respect of prior statements. The purpose was to demonstrate to the witness an inconsistency between the testimony being given in court and what had been said previously. If a witness accepts that on a previous occasion they said something different then that is a matter that may be taken into account when assessing the witness's credibility. I must take into account any explanation that the witness may give for the identified inconsistency. However, what is stated in the earlier statement is not in itself evidence of the truth of what was stated unless the witness accepts the statement on oath.
Expert evidence
An expert in an area of specialised knowledge can give evidence of their opinion if they are qualified by training or experience to give an expert opinion and the facts upon which they give that opinion are proved.
I received expert evidence from eight State witnesses namely Dr Jodie White, forensic pathologist; Ms Bianca Douglas, manager of forensic toxicology at ChemCentre; Ms Melissa Davies, chemist at ChemCentre; Detective Sergeant Matthew Long, arson investigator; Senior Constable Adrian Callaghan, vehicle crash investigator; Sergeant David Magorian, crash investigator; Mr Robert Davey, vehicle collision analyst; and Mr Aaron Bourne, engineer and vehicle collision analyst. The accused relied upon expert evidence from Mr Guy Tomlinson, specialist electrical consultant and arson investigator.
The fact that a witness possesses specialised knowledge concerning a subject does not mean that their evidence must be accepted. With expert evidence, as with other evidence received at trial, it is open for the trier of fact to accept or reject any part of the evidence, including opinions expressed by the expert.
The defence objected to two of the State's expert witnesses, namely Mr Bourne and Dr Baker, on the basis of expertise. It was agreed by both parties that I would receive the testimony of both Mr Bourne and Dr Baker provisionally and then determine the issue of admissibility. Prior to the closing addresses counsel for the State confirmed that the State no longer relied upon the testimony of Dr Baker. Therefore, I will have no regard to the testimony of Dr Baker. That testimony no longer forms part of the evidence that I will consider in this trial. I disregard the testimony of Dr Baker.
I will determine the objection to parts of the proposed testimony of Mr Bourne when considering the cause of the fire.
Character evidence
The defence case relied upon character evidence from two witnesses namely Ms Felicity Johnston and Ms Elise Devine. Each witness addressed their assessment of the accused's positive qualities. In addition, a criminal history document was received that confirmed that the accused has never been convicted of any offence.[7]
[7] Exhibit 64, criminal history of the accused.
I find that the accused is a person of good character. Good character is relevant to the issues of the accused's credibility and guilt. As to credibility a person of good character is more likely to be an honest witness or person and therefore more believable. As to guilt, a person of good character is less likely to commit an offence and therefore less likely to have committed the offence alleged on the indictment.
I must be conscious that evidence of good character is not a defence in itself and cannot prevail against evidence of guilt which, notwithstanding the accused's previous good character, I find to be proved.
Transcript of testimony and witness statements received in evidence
Between 11 March 2019 and 5 April 2019, the accused was tried on the same count before a judge and jury. The jury were unable to determine a unanimous verdict and therefore were discharged. The State tendered at the trial, by consent, the transcript of three witnesses who gave evidence at the first trial namely Ms Bianca Douglas, manager of forensic toxicology at ChemCentre;[8] Ms Melissa Davies, chemist at ChemCentre;[9] and Ms Stephanie Stacey, nurse;[10] and exhibits tendered by the respective witnesses at the first trial. The transcript of the witnesses and the exhibits tendered during the respective witnesses' testimony become part of the evidence that I will consider. I will do so in light of all other evidence. When a transcript of a witness's evidence is received into evidence, there is no opportunity to assess the witness give the evidence. In the context of this trial that causes no difficulty for the reason that the factual matters outlined in the respective testimony of the witnesses were not in dispute. Both counsel stated that the respective witnesses' testimony at the first trial comprehensively comprises all matters that each party required to be put to the witnesses. Further, both counsel stated that no credibility issues arise in respect of the three witnesses.[11] I agree that no issues of credibility arise in respect of the three witnesses.
[8] Exhibit 82, transcript of testimony of Ms Douglas given at the first trial being ts 479 ‑ 489 (14/03/2019).
[9] Exhibit 78, transcript of testimony of Ms Davies given at the first trial being ts 892 ‑ 905 (20/03/2019).
[10] Exhibit 84, transcript of testimony of Ms Stacey given at the first trial being ts 190 ‑ 201 (12/03/2019).
[11] ts 2444 ‑ 2445.
By consent the State relied upon a statement by Dr Toby Leace, a medical practitioner.[12] The statement of Dr Leace was read into evidence during the course of the trial and therefore becomes part of the evidence that I will consider in determining my verdict. In respect of Dr Leace no issue of credibility arises.
Direction in respect of statements made by the deceased
[12] ts 2447.
I received a number of statements made by the deceased prior to her death. The statements were made in emails that the deceased sent to two persons prior to her death[13] and the deceased's journal diary which was received in evidence.[14] The statements made by the deceased in respect of the occurrence of events are not evidence that the particularised events did in fact occur. The statements of the deceased may be used in two ways. The first way is as evidence of the deceased's state of mind when she made the statement. That is, I may draw an inference as to the deceased's state of mind from the fact that she made that particular statement. Whether I draw that inference in respect of the particularised statement of the deceased I must assess whether the statement reflected her true state of mind. I do so by taking into account not only the statement made by the deceased but the context in which it was said, including to whom it was said.
[13] Exhibit 1, email to Ms Gare from deceased sent 4 December 2008; Exhibit 2, email to Nancy Dowling from deceased sent 4 December 2008.
[14] Exhibit 48, journal diary of deceased referred to in the EROI conducted 20 February 2013.
An issue in this trial is the true state of the mind of the deceased, particularly on 6 December 2008. If I am able to draw an inference as to the deceased's state of mind, I may take her state of mind into account when considering whether the deceased may have reached over and veered the vehicle into the tree in the manner described by the accused in his EROI. That is because the accused stated in an EROI that the deceased reached over and grabbed the wheel and the vehicle collided with the tree. The question that arises in respect of her state of mind is whether the deceased had a suicidal intent at that time.
The second way that I may use the statements made by the deceased is as evidence of the relationship between the accused and the deceased. I may use the statements as evidence indicating the nature of the relationship and whether, in particular, there were any difficulties in the relationship.
Agreed facts
The parties agreed upon the following facts:[15]
1.On 6 December 2008 the deceased's life was extinguished.
2.The Ford EF Falcon station wagon, with registration number GN557, engine was replaced by the accused with an EL Engine prior to 6 December 2008.
3.The 2008 journal of the deceased tendered as exhibit 48 contains no references to the following:
(a)the accused engaging in physical violence or threatening physical violence to the deceased or to any other person;
(b)separation or divorce being discussed or contemplated by either the accused or the deceased; and
(c)the accused experiencing loss of consciousness or fainting aside from normal sleep patterns.
[15] Exhibit 37, agreed statement of facts between the State and the accused.
Given those facts have been agreed by the parties I will take those facts as proven.
Elements of the offence
I will now turn to the elements of the offence and in so doing I will outline the State's case at trial.
Section 279 of the Criminal Code provides:
(1)If a person unlawfully kills another person and –
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
(2)For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.
(3)For the purposes of subsection (1)(c), it is immaterial that the person did not intend to hurt any person.
Section 270 of the Criminal Code provides that any person who causes the death of another person, directly or indirectly, by any means whatever, is deemed to have killed that other person. Section 268 of the Criminal Code provides that it is unlawful to kill any person unless the killing is authorised, justified or excused by law. Accordingly, s 279(1) of the Criminal Code creates the offence of murder and s 268 and s 270 define what is meant by unlawfully killing another person for the purpose of the offence created by s 279.
In order to prove that the accused committed the offence of murder, the State must prove each of the following four elements:
1.That the accused did the relevant act (the identity question).
2.That the accused did the act that killed the deceased (the accused killed the deceased).
3.That the accused killed the deceased unlawfully.
4.That at the time that the accused killed the deceased, he intended to kill her.
The State contends that the accused is guilty of murder by unlawfully and intentionally killing the deceased.
First and second elements – the accused killed the deceased
The first and second elements require the State to prove beyond a reasonable doubt that the deceased was killed and that the person who killed the deceased was the accused. That is, the accused caused the death of the deceased, either directly or indirectly, by some means. The State must prove that the accused did an act which substantially contributed to the deceased's death. This is not a philosophical or a scientific question. I must determine this issue by applying my common sense to the facts as I find them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
There was no issue at trial concerning identification. The issue at trial was whether the accused killed the deceased.
Third element – unlawful killing
The third element is that the killing was unlawful. A killing is unlawful unless it is authorised, justified or excused by law. There was no issue at trial concerning whether the killing, on the State's case, was lawful. I will consider this element when discussing the particularised State case.
Fourth element – intention
The fourth element requires the State to prove that the accused had the intention to kill the deceased or had the intention to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life at the time that he did the act which caused the deceased's death. The State conducted its case on the basis that the intention held by the accused was only the intention to kill. A person's intention can only be inferred from other facts that are proved. I must be satisfied that that is the only inference that is reasonably open, from the facts as I find them, from the whole of the evidence. The State's case was that the accused had the intention to kill when he did the act that caused the death of the deceased.
Alternative verdict
If the State proves the first three elements but I am not satisfied that the accused killed the deceased with either of the two requisite intentions then the accused is not guilty of murder but guilty of manslaughter. In the context of this case that requires me to be satisfied that the accused unlawfully killed the deceased by causing the vehicle to catch on fire, otherwise than by merely driving the vehicle into the tree, while the deceased was in the vehicle, but to not be satisfied that the accused intended to kill the deceased.
State's case
The State particularised during the opening and closing addresses the case that the State brings against the accused to prove the count on the indictment.
The State's case against the accused is that on 6 December 2008 he killed the deceased, with the intention to kill, by incinerating her by fire whilst she was inside a vehicle. The State's case has three primary components. First, the State contends that the accused incapacitated the deceased by unknown means prior to incinerating her. The State's case is that the accused incapacitated the deceased prior to deliberately driving the vehicle into a tree or immediately after he deliberately drove the vehicle into a tree. Second, the State contends that the accused deliberately drove the vehicle, with the deceased in the front passenger seat, into a tree. Third, the State contends that prior to colliding with the tree or immediately after colliding with the tree the accused did an act that caused the vehicle to be set alight with fire. The act that caused the fire is the act that killed the deceased.
The State's case is thus that the accused killed the deceased by causing the vehicle to catch on fire while the deceased was in the vehicle. The State does not contend other hypothetical cases as a pathway to conviction. The State does not contend that the act which killed the deceased was the act of negligent driving on the part of the accused. The State does not contend that the fire was merely a consequence of the vehicle being driven into the tree. Therefore the act of the accused that caused the deceased's death must, in order to give rise to criminal responsibility, be something other than the mere driving of the vehicle into the tree. If I was to find that the only act which caused the deceased's death was the accused driving the vehicle deliberately into the tree then the verdict must be not guilty.[16] Accordingly, before I can find the accused guilty of murder I must be satisfied that the accused caused the deceased's death by an act (other than merely driving the vehicle into the tree) which caused the vehicle to catch on fire while the deceased was in the vehicle.
[16] ts 2658 (counsel for the State).
The State's case, therefore, is that the vehicle colliding with the tree was a staged incident. That is, the accused incapacitated the deceased by unknown means prior to placing her in the vehicle or immediately after the vehicle was driven into the tree. The accused then deliberately caused the vehicle to catch on fire. The State disavowed any reliance upon a pathway to guilt that the incapacitation of the deceased occurred by the mere collision with the tree. The State left open the possibility that the accused may have set the fire before the collision by some unknown means. However, the State's case is that the deceased was incapacitated prior to the fire commencing and that the fire was started by an act of the accused other than the accused merely driving the vehicle into the tree.
Given the narrow way in which the State's case is confined there is no basis on the evidence that the defences of unwilled act or accident pursuant to s 23A and s 23B of the Criminal Code arise. Had the State's case been that the accused killed the deceased solely on the basis that the accused deliberately drove the vehicle into the tree then those defences might arise. For example, in circumstances where one of the accounts of the accused was accepted, namely that the deceased grabbed the steering wheel, that the accused blacked out or that he was distracted, and that caused the collision with the tree, then it may be that the act of driving the vehicle into the tree was an act which occurred independently of the accused's will.
Further, if the deceased's death was a consequence of negligent driving or unintended driving of the vehicle into the tree, then it may be contended that the death occurred by accident.
However s 23A and s 23B of the Criminal Code have no application in the context of this trial given that the State confined its case to an act, other than driving the vehicle into a tree, which caused the vehicle to catch fire. There is no evidentiary foundation to support a contention that causing the vehicle to catch fire, in the context of the confined State's case, was an unwilled act or that death was not a foreseen or foreseeable result of causing a vehicle to catch fire whilst a person is inside the vehicle (and incapacitated).
There is no evidence that raises the proposition that if the accused caused the vehicle to catch on fire by means other than merely driving the vehicle into the tree, the resulting killing of the deceased was authorised, justified or excused by law. Accordingly, if the State proves that the accused caused the vehicle to catch fire by means other than merely driving the vehicle into the tree, it will also have proven that the killing was unlawful.
Indispensable links in the State's case
The State submitted that in proving its case three circumstance findings must be proven beyond a reasonable doubt. The State accepted that each circumstance constitutes an indispensable link in the chain of reasoning towards guilt. First, that the accused deliberately rendered the deceased unconscious by means other than by driving the vehicle into the tree. The State referred to that incapacitation as the stupefaction of the deceased. The State's case is that the means by which the accused incapacitated the deceased is unknown and that the State is unable to prove the means. Second, that the accused deliberately caused the vehicle to collide with the tree by driving the vehicle towards the tree whilst the deceased was seated in the passenger seat. The State contends that the collision was 'staged' by the accused. Third, that the accused caused the vehicle to catch fire by an unknown act either after the vehicle collided with the tree or immediately before the vehicle collided with the tree. The State's case is that the act by which the accused caused the fire is unknown. The State's case is that it is not necessary to prove how or by what actual means the accused caused the vehicle to catch fire. The case is, therefore, that the accused deliberately caused the vehicle to catch fire by unknown means but that the fire was not merely a consequence of the vehicle colliding with the tree.
These three indispensable links are the foundations of the entire State's case. Counsel for the State made it clear that whilst the circumstances that are indispensable links in the State's case are distinct considerations, there is a significant interconnection between them and, consistent with the principles applicable to proving guilt by circumstantial evidence, the State does not have to establish each factual conclusion by evidence directly relevant to that conclusion. The three indispensable links are not to be considered in isolation and evidence in the case is relevant to all three issues.[17] In submissions, though, the State did identify specific evidence that was relied upon in respect of the specific circumstances.
[17] ts 2660.
Circumstances relied upon – the State's case
I now turn to outline and consider each of the circumstances relied upon by the State to prove that the accused killed the deceased by deliberately causing the vehicle to catch fire.
The State particularised in its closing address the following circumstances in proving its case:[18]
1.The accused had a motive to kill the deceased being a combination of financial difficulties and the nature of his relationship with the deceased.
2.The accused deliberately drove the vehicle into the tree.
3.The speed at which the vehicle impacted with the tree being an estimated upper limit of 55 km per hour could not have resulted in the consequence of fire.
4.The absence of any evidence of fire exposure to the accused gives rise to the inference that the fire was started in a controlled manner. That is, the accused did not present to the first responders and medical staff with injuries consistent with burns or with any soot or the smell of smoke on his person or clothing.
5.The fact that the accused was able to remove himself from the vehicle but was unable to remove the deceased. The State contends that the accused incapacitated the deceased before driving the vehicle into the tree or immediately after having done so.
6.The unlikelihood that the fire started accidentally. The State's case is that the accused did an unknown act that caused the vehicle to catch on fire and thereby incinerate the deceased.
7.A lie told by the accused to the police in an EROI in respect of when he met Ms Jenny Yu, who he married in September 2009, which lie evidences a consciousness of guilt.
[18] ts 2661.
I propose to consider the State's case by reference to the particularised circumstances. In so doing I will consider the testimony and exhibits tendered at trial.
I will commence by considering the contention that the accused had a motive to kill the deceased. By considering motive I will necessarily consider the relationship between the accused and the deceased.
I will then turn to the other circumstances relied upon by the State in proving its case. First, how and why did the vehicle collide with the tree? That involves assessing a number of issues including the examination of the physical crash scene by the first responders, the investigating officers and the experts who subsequently assessed the available evidence. The assessment of the vehicle crash scene involves the ventilation of a number of issues including the speed of the vehicle. The only witness to the circumstances of the vehicle collision is the accused. I will outline his utterances to various witnesses and to the police concerning the vehicle incident and other issues.
Second, the circumstance relied upon by the State being the appearance and nature of injuries, if any, to the accused after the vehicle collision.
Third, the circumstance relied upon by the State being why the deceased was unable to exit the vehicle yet the accused was able to do so. That necessarily requires a consideration of the State's contention that the accused incapacitated the deceased prior to doing the act that caused the fire.
Fourth, the circumstances surrounding how the accused and the deceased both came to be in the vehicle and with the accused driving the vehicle. The accused maintains that his own vehicle (the green vehicle) broke down and therefore it was necessary for him to ask the deceased to take him in the vehicle that collided with the tree (the red vehicle) to his brother's property.
Fifth, a lie told by the accused to the police in an EROI in respect of when he met Ms Yu, who he married in September 2009, which lie evidences a consciousness of guilt.
Sixth, an assessment of the likelihood of the vehicle catching fire as a consequence merely of the collision into the tree; that is, whether the vehicle ignited due to the collision rather than an act of the accused causing the fire.
As I have observed, the State accepted that there are three indispensable links in the State's case, being that the accused deliberately caused the vehicle to collide with the tree, that he incapacitated the deceased, and that he did an act that caused the vehicle to catch on fire thereby incinerating the deceased.
Circumstance motive – relationship and financial
The State relies upon motive to prove its case against the accused. In support of the contention that the accused had a motive to kill the deceased the State's case has two components. First, that there were financial issues arising from the accused's farming business and his personal circumstances, and second that the relationship between the accused and the deceased had significantly deteriorated. The State contends that the accused had formed a relationship with another woman, Ms Yu, prior to the death of the deceased and that the consequence of any divorce was that the accused would be required to transfer part of the farming property to the deceased. The State accepted that the two components of the contention of motive overlapped.
The consideration of motive will illuminate the nature of the relationship between the accused and the deceased.
Motive – applicable principles
It is not necessary for the State to prove that the accused had a motive to kill the deceased. Motive is not an element of the offence. The reason why a person may have committed an offence may be unknown and a person is guilty of an offence if it is proved beyond a reasonable doubt that they committed the offence, notwithstanding that no motive was established by the State.
Motive may be relevant, if proven, for the reason that it may make it more likely that the accused committed the alleged offence. A motive or interest in committing an offence can be a piece of circumstantial evidence which, when added to all the other evidence, may persuade the trier of fact that an accused is guilty of the offence.
I must look at all the circumstances of the case and not be unduly affected by evidence that the accused had a motive to commit the crime because of the fact that many who have motives to offend never do so, and therefore allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime.
I must also consider whether the motive is disproportionate to the crime alleged, namely murder. A motive that is not strong or merely weak will be disproportionate to the crime alleged in this case. That is, a weak motive is less likely to support the commission of a very serious offence.
If I decide that the evidence relied upon by the State is not evidence of motive then that does not necessarily mean that the State has failed to prove guilt because of the lack of motive. In that event, I would determine my verdict based upon the evidence that is accepted.
Evidence relevant to motive
The accused and the deceased, who were married in 1983, lived together at a residence on a farming property in Borden. The accused and the deceased have two adult daughters and one adult son. In December 2008, the deceased was 56 years of age and the accused was 52 years of age, having been born on 12 November 1956.
I will now outline the relevant evidence in respect of motive, being evidence that assists in determining the nature of the relationship between the accused and the deceased and the financial circumstances of the accused. I accept the following witnesses' testimony at trial.
Mr Phillip Johnston
Mr Phillip Johnston, the accused's brother and business partner, gave evidence that, in part, addressed the financial position of the farming business.[19] Mr Phillip Johnston stated that the farm comprises three separate farming properties with one being owned by the accused and the two other properties being held by both brothers as joint tenants. Within each farm property the land is divided into multiple lots of land each with their own registered title.[20] The three properties have an estimated value of $5 million and are not encumbered with any mortgage.[21] The value of the other farming assets in 2008 was approximately $500,000. Mr Phillip Johnston and the accused receive income by taking drawings from the farming business.
[19] ts 2498 ‑ 2523.
[20] ts 2505.
[21] ts 2499.
Mr Phillip Johnston gave evidence that in the event of financial problems parts of the farming property may be sold, which did occur 'in the early 2000s' to satisfy debt.[22]
[22] ts 2505 ‑ 2506.
In 2007 and 2008 the farm harvests were both good. Mr Phillip Johnston stated that in 2008 there was some speculation that the rain may detrimentally affect the harvest but that the harvest ultimately was successful.[23] Mr Phillip Johnston stated that a possible financial loss of $250,000 in 2008 from harvest failure would have been absorbed by the farming business without the need to dispose of assets.[24]
[23] ts 2508.
[24] ts 2509.
Mr Phillip Johnston gave evidence that he considered that the accused was not materialistic and was generous.[25]
Mr Anthony Rogers
[25] ts 2506.
Mr Rogers, the deceased's brother, gave evidence that he was the executor of the deceased's estate and that the estate had assets of $168,867.[26] Mr Rogers recalls that 2 ‑ 3 weeks after the death of the deceased he received a telephone call from the accused stating that he was desperate for money and asked that arrangements be made for GESB Superannuation to release the deceased's funds.[27] GESB released $22,000 as a compassionate payment and the balance of $130,000 was subsequently released to the accused.[28]
Ms Maureen Muir
[26] ts 1875 ‑ 1876; Exhibit 3, statement of assets and liabilities of the deceased.
[27] ts 1874.
[28] ts 1875.
Ms Muir, a friend of the deceased since 1981, gave evidence that months after the death of the deceased the accused asked if he could borrow money from her.[29] Ms Muir gave no further details concerning this request from the accused, which she declined.[30]
Westpac Life Insurance
[29] ts 1862.
[30] ts 1863.
The State's case relied upon evidence that the accused believed that the deceased had taken out life insurance with Westpac Insurance. The accused informed the police during his first EROI that the deceased told him in the period prior to her death that she had taken out life insurance.[31] The accused stated that he told the deceased that life insurance was unnecessary.
[31] Exhibit 26, EROI conducted with the accused on 5 January 2009, ts 53 ‑ 56.
The accused sent a letter to Westpac Insurance seeking payment of the life insurance policy that he believed the deceased held.[32] In a letter from Westpac Insurance to the accused dated 2 February 2009, Westpac confirmed that there was no life insurance policy held by the deceased.[33]
Ms Judith Summers
[32] Exhibit 56, handwritten letter from the accused to Westpac Insurance Limited (undated).
[33] Exhibit 57, letter from Gail Shaw, Life Insurance Operations, Westpac Insurance, to the accused dated 2 February 2009.
Ms Summers, a neighbour on an adjoining farming property, gave evidence that she found that the deceased always spoke respectfully of the accused and in turn that the accused was always respectful and loving towards the deceased.[34] Ms Summers stated that she had known the accused since February 2005.[35]
Ms Virginia Gare
[34] ts 1773.
[35] ts 1772.
Ms Gare, sister of the deceased, gave evidence that the farm always seemed to be in financial trouble and that there never appeared to be any money.[36] Ms Gare stated that the accused was 'hardworking, very intelligent, seemed dedicated to his family.'[37] Ms Gare stated that the deceased told her in 2008 that the accused had an affair with another woman 'many years before'.[38]
Ms Catherine Holt
[36] ts 1831 ‑ 1843.
[37] ts 1834.
[38] ts 1833.
Ms Holt gave evidence that she formed a friendship with the accused which resulted in her having sexual intercourse with him on one occasion in 2004.[39]
Ms Galina Rozanova
[39] ts 1994.
Ms Rozanova, sister‑in‑law of the deceased, gave evidence that in 2001 the deceased told her that the accused ceased having sexual intercourse with her since she turned 38 years of age.[40]
Mr Benjamin Devine
[40] ts 1867.
Mr Devine is married to Ms Elise Devine, the daughter of the deceased and the accused. His relationship with Ms Devine commenced in 2005. Mr Devine gave evidence that he considered that the marriage between the deceased and the accused was a 'normal marriage' and that it appeared to be a 'caring relationship.'[41] Mr Devine confirmed that in September 2017, the accused stated that during his marriage he had engaged in affairs with other women.[42]
[41] ts 1846.
[42] ts 1853.
Mr Devine stated that during the one year period prior to the deceased's death he recalled the deceased expressing concern about financial issues. Mr Devine recalled that approximately one year prior to the deceased's death the deceased telephoned him to discuss obtaining life insurance.[43] Mr Devine has a background in personal finance issues. The deceased told Mr Devine that whilst she wished to obtain life insurance the accused 'did not see the point or need to take out life insurance.'[44]
Ms Elise Devine
[43] ts 1856.
[44] ts 1856.
Ms Devine, daughter of the deceased and the accused, stated that her father was a very kind and gentle person and that she had never observed her father being violent towards her mother. Ms Devine said that she believed that her mother and father were very happy. Ms Devine stated that the accused 'is not a materialistic sort of person' and that money was not a priority. He was a person who did not buy clothes or luxury cars or travel overseas on holiday.[45]
Ms Felicity Johnston
[45] ts 2467.
Ms Johnston, daughter of the deceased and the accused, stated that the relationship between her mother and father was 'very loving, they had a very happy and loving relationship'.[46] Ms Johnston observed that she was aware that they had their troubles and had attended counselling.
[46] ts 2482.
Ms Johnston stated that the accused was a person with no interest in material possessions and that he was a selfless person.[47] She stated that the accused was generous with his possessions. Ms Johnston stated that the deceased was concerned about money. Ms Johnston also stated that her father was not a violent person.[48]
Ms Jenny Yu
[47] ts 2483.
[48] ts 2484.
Ms Yu gave evidence that she first met the accused on a social media application, called QQ, in the latter half of 2008.[49] Ms Yu met the accused in person sometime during that period. The accused visited Ms Yu at a house in Thornlie and during the visit he was given a massage. Ms Yu stated that she was given $1,000 by the accused at that time but denied that there was any sexual activity with the accused at the time of the massage.[50]
[49] ts 1962.
[50] ts 1963; Exhibit 12, ANZ Everyday Visa Debit statement for period 24 November 2008 to 22 December 2008 in Ms Yu's name; Exhibit 13, ANZ Everyday Visa Debit statement for the period 23 December 2008 to 22 January 2009 in Ms Yu's name.
The State produced banking records that established that on 3 November 2008 the accused transferred $500 to Ms Yu.[51] That was the only transfer of money from the accused to Ms Yu prior to the deceased's death.
[51] Exhibit 53, ANZ Bank statement in account named Gregory Paul Johnston; ts 2400.
The banking records also established that after the death of the deceased the accused made further payments to Ms Yu comprising a payment of $15,000 on 19 December 2008.[52] Ms Yu could not recall from whom she received that money. Further, on multiple dates in 2009 the accused transferred $1,000 to Ms Yu, being 18 February 2009, 2 April 2009, 29 April 2009, 14 May 2009, 25 May 2009, 3 August 2009 and 1 September 2009.[53]
[52] Exhibit 12, ANZ Everyday Visa Debit statement for period 24 November 2008 to 22 December 2008 in Ms Yu's name; Exhibit 13, ANZ Everyday Visa Debit statement for the period 23 December 2008 to 22 January 2009 in Ms Yu's name.
[53] Exhibit 53, ANZ Bank statements in account named Gregory Paul Johnston; ts 2400.
On 10 September 2009, the accused and Ms Yu married. Members of the accused's family did not attend the wedding. Ms Yu stated that during the period commencing when she first met the accused until their marriage the accused did give her money. Ms Yu stated that in the month before the marriage the accused gave her $20,000.[54] Ms Yu stated that she was given that money because 'we're getting married.'[55]
[54] ts 1965.
[55] ts 1965.
Ms Yu was not asked by counsel for the State whether she was in a sexual relationship with the accused prior to the marriage.
Diary entries
The State relied upon entries in the deceased's diary which was produced to the police in 2013 by the accused.[56] The diary had been seized by the police on 9 December 2008 during a search of the property but was subsequently returned to the accused by the police. The entries relied upon by the State comprise the following:
G constantly critical of me (6 January 2008); I went through my diary from Bali. G not interested. Just kept on about the sewage and tried to find fault in the place (6 July 2008); G angry I was making a noise when I was putting the dishes away … Refused to have dinner (28 July 2008); G said he wasn't going to stay overnight despite saying he would before and I specially booked a double room. I felt so upset and disappointed. He didn't want to see me off. He just wanted to spray or something. So angry w him too … What has happened to the lovely man I married? He just thinks only of himself! (6 August 2008); He's negative, critical and cynical and doesn't care about others (16 August 2008).
[56] Exhibit 48, journal diary of deceased referred to in the EROI conducted on 20 February 2013.
The agreed facts between the parties include that the diary of the deceased made no references to the accused engaging in physical violence or threatening physical violence to the deceased or to any other person. Further, in the diary there are no references to separation or divorce being discussed or contemplated by either the accused or the deceased.
Ms Pamela Rumble
Ms Rumble, social worker and counsellor, gave evidence that the accused received counselling between 2005 and August 2008.[57]
[57] ts 1947.
By reference to her consultation records Ms Rumble stated that the accused made the following utterances concerning the nature of his relationship with the deceased:[58]
[58] ts 1951 ‑ 1955.
17 December 2007
Still difficulties relating. Patterning from the past present affecting his responses. Susi depressed because it rained and has ruined the crop. Doesn't feel empowered in the relationship. Fears that he will lose the farm if they separate. Continues to be civil and do some things with her. We talked about Greg's ability to start anew with Susi and to offer something for Susi, to be generous and caring to others. Greg said he finds this difficult given their history.
23 January 2008
Greg is discontent in his relationship with his wife and thinks this is underpinning his feelings of sadness today. He says he feels trapped but takes responsibility for setting it up that way.
Is not able to get what he needs from his wife. Feels she analyses and counsels him rather than listens and acknowledges.
11 March 2008
Internet connecting with others. Enjoying conversations online with five women. Opportunity to discover himself.
Not being such a victim to her attacks. Susi still not hearing his needs and allowing him to be himself, always fixing. We explored what it meant to create the relationship just the way he wants and not to depend on the other for making it work.
25 March 2008
Greg feels that Susi never listens to him. Identified the feeling and the need and then suggested he put his needs into a request. Greg says Susi can't listen to him going on about their relationship. Suggest it would be difficult and that he could possibly discuss these with someone else and stick to subjects that Susi could listen more easily to.
15 April 2008
Has decided to ask Susi for a separation in July after her holiday to Indonesia. Is concerned about her reaction. Feels it is only fair and can't live with his dishonesty. He does not have negotiation skills, can't communicate in new ways and old patterns running their lives.
15 July 2008
Still strained. Doesn't like the way his wife speaks to him. Always criticising and analysing. Looked at ways of listening to intentions behind words and different ways to respond.
Greg has a goal to get some money ($250,000) from this crop so he can purchase a house in Perth for Susi. Greg says Susi was happy working in Perth. She is teaching yoga in the town nearby and home a lot. Greg would like to be more honest with Susi but he's worried about the consequences.
12 August 2008
He has reconciled and accepted his relationship as much as possible with his wife.
Findings regarding motive
From the evidence received I make the following findings. First, that the accused at all times was a loving and respectful father to his two daughters and son. That finding is entirely consistent with the evidence of the two daughters.
Second, the accused has never been violent towards the deceased or any other person. Further, the accused has never threatened violence towards the deceased or any other person. The evidence is to the contrary. The accused is a person of good character who has never been convicted of a criminal offence and is most genteel in nature.
Third, I find that the accused is not a materialistic person. The accused has led a productive life on the farm bringing up his daughters and son with the deceased whilst never taking holidays or engaging in conspicuous spending. The accused is a hard working person who is well liked by the community of which he is a part.
Fourth, I find that the marriage had ongoing difficulties for a significant period. In 2004 the accused had an affair with another woman. The sexual aspect of that relationship was limited to one occasion. There was, though, ongoing emotional attachment between the accused and the person. I accept the evidence of Mr Devine that the accused did state that he had other affairs during his marriage to the deceased. The accused sought counselling and expressed the difficulties that he was experiencing in his marriage. In 2008 he told Ms Rumble, his counsellor, that he was going to separate from the deceased. In July 2008 the accused expressed his desire to purchase a house for the deceased in Perth. In August 2008 the accused told Ms Rumble that he had 'reconciled and accepted his relationship'. Moreover, the deceased's diary made no reference to the contemplation of separation or divorce.
I find that the issues in the marriage that existed in 2008 were of the same type as the ongoing difficulties that characterised the marriage for an extended time period, most likely for a decade or more. The marriage had a level of stability that permitted the accused and the deceased to live and work together on the farm and for both to be very good parents to their children. The marriage had a level of stability despite the issues that existed between husband and wife.
I find that the accused did form a relationship with Ms Yu prior to the death of the deceased. Both the accused and Ms Yu denied that a sexual relationship commenced prior to the death of the deceased. The State did not put that proposition to Ms Yu except in making the enquiry regarding the first $1,000 payment. I find that the relationship between the accused and Ms Yu was a strong emotional relationship prior to the death of the deceased. After the death of the deceased the relationship then further developed to the point that the accused married Ms Yu in September 2009.
I do not accept the State's contention that the accused had financial issues that grounded a motive to kill. The accused has a substantial interest in the corporate bodies that own the farming property that is valued at approximately $5 million and with farm assets worth $500,000. The farming property comprised three properties with one owned by the accused and two jointly with Mr Phillip Johnston. I accept the evidence of Mr Phillip Johnston concerning the ownership of the property and that the land was subdivided which permitted part disposal if there were financial difficulties. In the event of a separation the State submits that there may have been the need for part of the property to be disposed of in a property settlement. Apart from one reference during a consultation with Ms Rumble in December 2007 this was not an issue contemplated by the deceased and the accused. I do not accept that this necessarily would have occurred.
The accused and the deceased had sufficient income to fund their lifestyle and to provide a very good education and family home to their two daughters and son.
I do not accept the State's contention that part of the motive was to obtain life insurance. There is no evidence to suggest that, prior to the death of the deceased, the accused took steps to secure life insurance in respect of the life of the deceased. To the contrary the evidence supports the finding, which I make, that the deceased herself expressed the wish to obtain life insurance. That wish was expressed to Mr Devine, her son‑in‑law, who has experience in personal finance. However, the deceased told Mr Devine that the accused did not see the point in obtaining life insurance. As I have observed, I accept Mr Devine's evidence.
The State contends that the fact that the accused took steps after the deceased's death to obtain funds from the deceased's GESB superannuation fund is also supportive of motive. I do not accept that contention. I find that the steps taken by the accused to access the GESB funds were consistent with an action that any lawful beneficiary may take.
For these reasons therefore, I find that the motive relied upon by the State is weak and tenuous.
There is no proportionality between a motive that has as its bedrock the fact that the accused had commenced an emotional relationship with another woman, Ms Yu, and the financial circumstances of the accused, and the crime of murder, which on the State's case was the act of incinerating the deceased whilst she was alive in a vehicle.
Circumstances of vehicle collision
I now turn to the circumstances in which the vehicle collided with the tree. A number of the circumstances upon which the State rely must be assessed under the rubric of this topic.
First, how and why did the vehicle collide with the tree? This question involves assessing a number of issues including the examination of the physical crash scene by the first responders, the investigating officers and the experts who subsequently assessed the available evidence. The only witness to the circumstances of the vehicle collision is the accused. The assessment of the vehicle crash scene involves the ventilation of a number of issues including the speed of the vehicle.
Second, the circumstance relied upon by the State being the appearance and nature of injuries, if any, to the accused after the vehicle collision.
Third, an assessment of the likelihood of the vehicle catching fire as a consequence merely of the collision into the tree.
Fourth, the circumstance relied upon by the State being why the deceased was unable to exit the vehicle while the accused was able to do so. That necessarily requires a consideration of the State's contention that the accused incapacitated the deceased prior to doing the act that caused the fire.
Lastly, the contention that the accused's own vehicle broke down and therefore, he asked the deceased to take him in the red vehicle to his brother's property.
As I have observed the State accepted that there are three indispensable links in the State's case being that the accused deliberately caused the vehicle to collide with the tree, the accused deliberately caused the deceased to be incapacitated and the accused did an unknown act that caused the vehicle to catch fire.
I will commence by outlining the evidence of the first responders. The first responders were the neighbours who travelled to the property upon observing smoke and the emergency service officers. In considering the first responders I will outline the recollections of the respective witnesses regarding the appearance of the accused and the nature of any injuries.
First responders – crash scene and the appearance and nature of any injuries to the accused
Evidence was received from a number of persons who may be characterised as the first responders to the vehicle collision with the tree. The first responders comprised members of the Summers family who live at a farming property adjacent to the Johnston property, volunteer emergency services officers and police officers.
A number of the witnesses gave evidence concerning the appearance of the accused immediately after the collision and in particular, whether he presented with any injuries. I accept the testimony of each of the following witnesses.
Mr Ashley Summers
Mr Ashley Summers is a farmer who recalled that at approximately 9.00 am on 6 December 2008 he observed black smoke rising from the accused's property. He retrieved the farm's fire unit, being a water tank and pump, which had a capacity of 1,000 litres, and travelled with his father, Mr Michael Summers, to the Johnston property.[59] After arriving some 15 minutes later Mr Ashley Summers observed the vehicle 'fully alight'. He directed the water from the fire unit for approximately two minutes towards the vehicle, directed mainly to the driver's side of the vehicle.[60] At that point the fire was not completely extinguished but had been reduced.[61]
[59] ts 1758.
[60] ts 1758 ‑ 1759, 1764.
[61] ts 1759.
Mr Ashley Summers gave evidence that when he arrived at the accused's house he observed the accused lying on the kitchen floor appearing emotional and that his words were incoherent.[62]
Mr Michael Summers
[62] ts 1765.
Mr Michael Summers gave evidence that at 9.00 am on 6 December 2008 he observed black smoke rising from the Johnston property.[63] He stated that he travelled from his property to the Johnston property with his son, Mr Ashley Summers, taking a 900 litre water tank. Upon arrival the water was directed to the driver's door area of the vehicle with a focus on the tree.[64] The water supply was exhausted after approximately two minutes.[65]
[63] ts 1794.
[64] ts 1797, 1799.
[65] ts 1799.
When he arrived at the accused's house Mr Michael Summers observed the accused lying on the kitchen floor sobbing and stated that the accused was visibly upset.[66] Mr Michael Summers recalls the accused complaining of a sore neck but that he had no visible injuries.[67] He did not smell any smoke on the accused.
Ms Judith Summers
[66] ts 1803 ‑ 1804.
[67] ts 1801.
Ms Summers gave evidence that she observed smoke from the accused's property and soon after received a telephone call requesting that she attend the property in her capacity as a volunteer ambulance officer.[68] Ms Summers gave first aid to the accused observing that he was in shock based upon her experience as a registered nurse,[69] and that he appeared to be very stressed. Ms Summers did not observe any injuries on the accused.[70]
Ms Bronwyn Dewar‑O'Neill
[68] ts 1774 ‑ 1775.
[69] ts 1784.
[70] ts 1779.
Ms Dewar‑O'Neill, nurse and volunteer ambulance officer, gave evidence that she received a call at approximately 9.00 am on 6 December 2008 to attend the Johnston property. Ms Dewar‑O'Neill travelled in an ambulance driven by Mr Barry Savage to the Johnston property.[71]
[71] ts 1809.
Ms Dewar‑O'Neill travelled in another ambulance with Ms Sharyn Pither, transporting the accused to Gnowangerup Hospital.[72] The accused was sobbing and upset. She did not observe any visible injuries on the accused.[73] Ms Dewar‑O'Neill did not smell any smoke on the clothing of the accused.[74]
[72] ts 1810 ‑ 1811.
[73] ts 1812.
[74] ts 1812.
At Gnowangerup Hospital the accused was transported to Katanning Hospital by ambulance.
Ms Sharyn Pither
Ms Pither, volunteer ambulance officer, gave evidence that she attended at the Johnston property in response to an emergency call received at 9.15 am on 6 December 2008. Ms Pither observed the accused lying on the floor distressed and in pain.[75] In the ambulance travelling to the hospital Ms Pither observed that the accused was 'crying, sobbing' which Ms Pither stated she has 'seen that with many patients who are severely shocked.'[76] Ms Pither stated that the accused complained of neck and back pain and pain to his left ribs and a laceration to his left hand.[77] Ms Pither stated that the only visible injury was the minor laceration to the accused's hand.[78]
[75] ts 1819.
[76] ts 1824.
[77] ts 1824.
[78] ts 1825.
Ms Pither recalled the utterances of the accused in the ambulance concerning his recollection of the vehicle incident. Ms Pither recalled that the accused stated that the vehicle hit the tree at 70 ‑ 80 km per hour and that he thought that he blacked out but that he was not certain.[79]
Officer Michael Cartwright
[79] ts 1824.
On the morning of 6 December 2008, Officer Cartwright received a telephone call to attend a fire at the Johnston property. Upon arrival Officer Cartwright observed a burnt vehicle still smouldering.[80] The scene was visually recorded by Officer Cartwright.[81] Officer Cartwright accompanied the accused in the ambulance to Gnowangerup Hospital. Officer Cartwright did not observe any injuries on the accused. He stated that the accused was wearing blue jeans, a blue T‑shirt, blue socks and no shoes.[82]
[80] ts 1907.
[81] Exhibit 8, DVD video footage of vehicle taken by Officer Cartwright on 6 December 2008.
[82] ts 1912.
The clothing worn by the accused, being a pair of jeans and a T‑shirt, was photographed upon his admission to Gnowangerup Hospital.[83] Further, photographs of the accused were taken upon his admission to Katanning Hospital.[84]
Ms Stephanie Stacey
[83] Exhibit 65, bundle of 10 photographs showing clothing worn by the accused upon entry into hospital.
[84] Exhibit 66, disc containing 13 photographs of the accused at Katanning Hospital on 6 December 2008 and a bundle of the same 13 photographs.
Ms Stacey, a registered nurse, gave evidence at the first trial. As I have observed, by agreement between the parties the transcript of her testimony was received in evidence.[85] On 6 December 2008, Ms Stacey was on duty as a nurse at Gnowangerup Hospital. Ms Stacey stated that the accused presented crying and incoherent.[86] The accused had no visible injuries, including no signs of burns, but he did have some swelling and tenderness in the mid sternum and the base of his skull and the back of his neck was tender.[87] There was also a small abrasion on his index finger.[88] Ms Stacey stated that the accused's vital signs were normal and that there was no requirement that oxygen be given.[89] The accused's score on the Glasgow Coma Scale was 15, which is the highest level of consciousness.[90] The accused was given pain killers and then transported to Katanning Hospital.
Dr Jodie White
[85] Exhibit 84, transcript of the testimony of Ms Stacey given at the first trial being ts 190 ‑ 201 (12/03/2019).
[86] ts 195, 199 (12/03/2019).
[87] ts 194 (12/03/2019).
[88] ts 194 (12/03/2019).
[89] ts 194 (12/03/2019).
[90] ts 195 (12/03/2019).
Dr White is a forensic pathologist. During her testimony she was shown 12 photographs of the accused taken in Katanning Hospital by police officers on 6 December 2008 and asked whether thermal‑type injuries such as burns, blistering or singeing caused by exposure to heat were identifiable.[91] Dr White was unable to identify any thermal‑type injuries on the body of the accused. Dr White identified a red spot near his ankle but she was unable to determine whether it was a thermal‑type injury.[92] Further, Dr White identified skin defects on the accused's left hand where there was some superficial skin loss on the finger and stated that that could be the result of a thermal injury or alternatively a skin tear.[93]
[91] ts 2056 ‑ 2064; Exhibit 23, disc containing bundle of 12 photographs of the accused taken on 6 December 2008.
[92] Exhibit 23, photograph DSC 0907.
[93] ts 2062; Exhibit 23, photograph DSC 0909.
Dr White stated that, generally, if there is a large amount of smoke or ash produced by fire, the body of a person tends to be covered in a fine black powder referred to as soot.[94] In the experience of Dr White, soot tends to stick to skin and clothing and requires washing to remove it.[95] Dr White gave testimony that she was unable to identify any soot on the accused in the photographs.[96]
Sergeant Luke Fowler
[94] ts 2064.
[95] ts 2065.
[96] ts 2065.
Sergeant Fowler gave evidence that the police had retained the clothing worn by the accused. Sergeant Fowler stated that upon inspection the clothing showed no evidence of being burnt or singed or having been exposed to soot. One piece of clothing not seized by the police was a brown jumper that was inside the farm house on 6 December 2008. In the EROI conducted by the police in 2017 the accused stated that he was wearing that jumper at the time of the vehicle collision but took the jumper off when he returned to the house immediately after the vehicle collision.[97]
[97] ts 2431.
In closing submissions, the State submitted that even if the accused was wearing the brown jumper it would not provide sufficient protection from thermal injury to his legs and head region.[98]
Findings regarding the appearance of the accused and the nature of any injuries
[98] ts 2681.
The State contends that the accused did not suffer any thermal injuries and that his physical appearance, including his scent, was not consistent with a person who had been exposed to black smoke.
The State contends that the fact that the accused was not injured and did not present with any effects of being in close proximity to the fire supports a finding of guilt for the reason that it supports a finding that the accused deliberately lit the fire in a manner that did not put his own safety at risk.
I have outlined the testimony of witnesses who attended the property immediately after the smoke was observed rising from the property. The witnesses addressed the appearance of the accused immediately after the vehicle incident and further medical practitioners and nurses gave evidence concerning the nature of any injuries sustained by the accused.
Based upon the evidence of Ms Stacey I find that the accused suffered injury in the vehicle incident namely swelling and tenderness in the mid sternum and tenderness to the base of his skull and back of his neck.
I find that there was no evidence that the accused presented with soot on his person or clothing. Further, the evidence supports a finding that the accused did not suffer any thermal injuries as a consequence of the fire. The direct evidence of the health officers who treated the accused and the appearance of the accused in the photographs taken of his person on 6 December 2008 provide the evidentiary basis for that finding. The only injuries suffered by the accused were bruising to the sternum and tenderness to the skull and back of his neck.
The foundation of the State's contention that the fact that the accused was not injured, and did not present with any effects of being in close proximity to the fire, supports a finding of guilt, are the utterances of the accused in his accounts to the police which, on the State's case, 'paints a picture of significant involvement in a major fire with black smoke billowing out from doors as he opened them.'[99] The State's contention therefore is that the utterances support that finding. There is no evidence other than the utterances of the accused that the State can rely upon to show that the accused was in such close proximity to the flames that he would, necessarily, have sustained thermal injuries and have soot on his person.
[99] ts 2679.
The State therefore contends that the evidence that the accused did not have thermal injuries and did not appear to have been affected by fire is supportive of the finding that he deliberately lit the fire in a way which did not endanger his own safety. Accordingly, it is necessary that I consider the accused's utterances regarding his proximity to the fire and whether the utterances support a finding that he would have sustained thermal injuries and have soot on his person.
Accused's statements to the police relevant to his injuries after the collision
The accused gave a written statement to the police on 7 December 2008. I outline the accused's statement below at [188]. At this juncture I need only refer to the salient aspects of the statement that bear on this issue.
In his written statement of 7 December 2008, the accused stated that after the collision with the tree he 'came to' and was outside the car in the dirt with his face down and observed thick dark black smoke coming out of the front left‑hand passenger window. The accused could not see the deceased inside the vehicle and therefore opened the driver's door where he was 'met with a rush of flame' causing him to let go of the door. The accused observed flames and black smoke but could not see the deceased and that he then 'rolled around on the ground crying'. The accused stated that because the fire was so intense he could not do anything about the situation.[100]
[100] Exhibit 4, witness statement of the accused signed on 7 December 2008 [36] ‑ [45].
During his EROI conducted by the police on 5 January 2009, the accused stated that after the collision he could not breathe and he could not see his hand in front of him. The accused stated that he exited the vehicle and then remembered being face down outside the vehicle and observed black smoke inside the vehicle. The accused stated that he opened the door on the driver's side and was met with flames.[101]
[101] Exhibit 26, EROI of the accused conducted on 5 January 2009, ts 10 ‑ 12.
During his EROI conducted by the police on 20 February 2013, the accused stated that he could not recall whether he had lost consciousness or not but that there was darkness being 'like a grey white smoke or mist in the car'.[102] The accused recalled scrambling to get out of his seatbelt and that he could not breathe. At that time he exited the vehicle and then recalled opening the driver's door to see inside but there were flames and black smoke.[103] The accused recalled the windows shattering one by one.
[102] Exhibit 44, EROI of the accused (part 1) conducted on 20 February 2013, ts 10 ‑ 11.
[103] Exhibit 44, EROI of the accused (part 1) conducted on 20 February 2013, ts 10 ‑ 11.
The accused also stated that he opened the door and that there were flames when the air entered the vehicle but the flames were blowing away from him due to the wind blowing from right to left.[104]
[104] Exhibit 46, EROI of the accused (part 3) conducted on 20 February 2013, ts 35 ‑ 36.
During his EROI conducted by police on 12 September 2017, the accused was asked why he was not singed, to which he replied 'because there was no fire that came out except for the, when I opened the door' and that smoke billowed out but no fire came out. The accused stated that the fire erupted out of the rear windows and the side windows and that when the door was opened and the smoke billowed out, no fire came out.[105]
[105] Exhibit 50, EROI of the accused conducted on 12 September 2017, ts 215 ‑ 216.
During his EROI conducted on 14 February 2018, the accused stated that he was wearing a brown jumper at the time of the vehicle collision and that he removed the jumper when he ran back to the residence.[106] The jumper was observed in a video recording taken of the inside of the residence on 7 December 2008.
[106] Exhibit 51, EROI of the accused conducted on 14 February 2018, ts 33.
The State contends that the accused should have presented with thermal injuries given his account of being in the vehicle upon collision and a fire commencing immediately after the collision. That the accused was driving the vehicle at the time of the collision is not a fact in dispute. As I have observed, underlying the contention of the State that the accused would, necessarily, have presented with thermal‑type injuries is the utterances of the accused to the police in the EROIs and in his written statement to the police.
During the State's closing address counsel acknowledged that the State did not seek to rely upon the testimony of Dr Baker whose testimony would have addressed heat release rates and the effect of such heat levels on humans. The State submitted that I should apply my common sense and personal experience in determining whether the accused should have presented with thermal injuries and soot on his person.
The State's contention amounts to this: that the accused's versions of events in which the fire started accidentally after the collision, and that he was in close proximity to the fire, cannot be accepted because his versions are inconsistent with the surrounding evidence namely the absence of thermal injuries and soot on his person. The State's contention is that if the accused's version of events concerning the collision is true, then he must have been in such close proximity to the fire that he would necessarily have suffered thermal injuries or have soot on his person, and yet there were no such thermal injuries or soot evident.
Mr Tomlinson was cross‑examined by counsel for the State in a very detailed and methodical manner. Mr Tomlinson stated that he was unable to confirm the depth within the engine bay that the point of ignition occurred.[360] Mr Tomlinson accepted that brake fluid and air‑conditioning accelerant could not be the ignition sources but would act as a fuel once a fire commenced.[361] He stated that the ignition was associated with an arc event with the petrol being a fuel after that arc event.[362] The fire would then develop 'somewhere between zero and five minutes.'[363]
[360] ts 2599.
[361] ts 2599.
[362] ts 2600.
[363] ts 2601.
In cross‑examination Mr Tomlinson was asked about his opinion in his report that the condition of the vehicle was questionable. Mr Tomlinson stated that the vehicle was 14 years old and therefore the lines and hoses associated with the fuel lines and air‑conditioning and the metal pipework would be of questionable condition and this is a relevant factor to be considered.[364]
[364] ts 2606.
Mr Tomlinson stated that if an accelerant was introduced there would be rapid combustion which would have caused different combustion patters on the bonnet than the patterns evident.[365] Mr Tomlinson agreed that he did not refer to the combustion patterns in his report in support of that proposition. Mr Tomlinson maintained that the combustion patterns were inconsistent with a person introducing a fire through an accelerant from underneath the vehicle.[366]
[365] ts 2625.
[366] ts 2641.
The cross‑examination concluded with the following propositions and questions being put to Mr Tomlinson.[367]
[367] ts 2636 ‑ 2638.
Right. Because it's fair to say, isn't it, that you can't exclude, based on the evidence that you've seen, deliberate ignition in this case? – I cannot categorically exclude any ignition source. That's not what the evidence suggests, though.
So if you cannot exclude deliberate ignition, how is it that you have concluded that this fire started accidentally? – So based on the evidence that I've seen and the combustion patterns that I've examined with the videos and the photographs including the oxidisation to the under side of the bonnet including and probably leaning a little heavier on the damage to the windscreen and the progression of fire by the patterns on the roof and the patterns on the left‑hand side, the destruction of the tyres on the left‑hand side or passenger side, the virtual non‑damage to the right‑hand side, et cetera, I – what I have to do is find a probable ignition source that all of the combustion patterns on the vehicle point to. And once I've excluded, in my mind, the potential hypothesis of any other cause, I then concentrate on one that I – I can prove. And I believe I can prove that the area of origin was associated with the battery supply cable and/or the starter motor terminal as being the most likely. I didn't see any evidence that indicated to me that this was a purpose‑lit fire so I could not call it a purpose‑lit fire. I determined in my opinion, based on my experience, that it was accidental.
But there are no arc burns? – Correct. You don't always find exactly what – what commenced the fire but you do, by a process of elimination, approach the fire scene from the least amount of damage to the greatest amount of damage and then try and identify a most likely hypothesis associated with an ignition source in that point or in that area, I should correct myself.
So you've got a – a fire starting in that area? – Yes.
And you've got a hypothesis as to how that fire may have started? – Correct.
You can't exclude the hypothesis that it was deliberately lit? – Categorically can't exclude it, no. That might have happened but there is no evidence that I've seen that suggests that.
But as a matter of common sense what evidence would you expect to see? – I would expect to see different combustion patterns on the underside of the bonnet, for instance, because if we do have a – a rapid commencement of – by an accelerant, I'd expect to see a difference in combustion patterns on the underside of that – that area.
But if you have not excluded deliberate ignition, how then do you reach a conclusion that it was accidental? That – that's what I'm, seeking to explore? – And so I – if I could rephrase that for you, it's not a matter of excluding categorically that it wasn't an introduced ignition, it's the fact that there was no evidence, of all the evidence that I've seen, that supports that. So it's a process of elimination. I have to approach each one of the potential ignition sources one by one and see what I can obtain to support that as an ignition source. The most likely ignition source in my considered and professional opinion is that it was an electrical arc spark that ignited this fire.
But if you say that's the most likely ignition source then, clearly, that leaves open the alternative? – There's always a potential for anything to have happened. I wasn't there. I've said that many times. If I'm not standing there watching it I cannot say categorically that's what happened. Anything could have happened but the evidence, in my opinion, based on my experience, supports that this was an arc fault induced fire as a result of the impact of the car hitting the tree.
That's a hypothesis? – We might be – yeah, let's call it hypothesis. But it's based on a considerable amount of evidence that I've seen and a considerable amount of experience that I have.
Well, the considerable amount of evidence that you've seen tells you that the fire started in the rear left of the engine? – That's correct.
That's the evidence on which your hypothesis is based? – Yes, but we have – to have – if I'm asked to consider what an ignition source is, I have to consider what the – all of the potential ignition sources in that area, and I have considered them. And to me the most likely is that it was an arc fault induced.
Right, that's the most likely so there, presumably, is a less likely alternative which is the introduction of a deliberate – an ignition source deliberately? – I – I concur. That is a potential. I – I cannot categorically exclude that but none of the evidence that I've seen suggests that. There's a considerable amount of different damage of fire patterns and radial fire marks relative to an introduced element like that.
So you conclude that this fire is accidental ‑ ‑ ‑? – Correct.
‑ ‑ ‑ But you can't exclude the possibility that it was deliberately lit? – Okay. So for me, from a fire investigator's point of view, I work on a balance of probabilities. I'm talking about – I don't have to involve myself with whatever the circumstances are associated, whether it be a car fire or a structural fire or – or someone became electrocuted, it's about the fact that on a balance of probabilities on all the information that I've considered it is most likely or most probable that this is what occurred. I cannot guarantee that that is exactly what occurred.
Findings regarding expert evidence concerning cause of fire
The opinion of Detective Sergeant Long, who attended at the fire scene, was that the area of origin of the fire was indeterminate and that therefore, the cause of the fire was indeterminate. There was no evidence that an accelerant had been introduced by a person to cause or accelerate the fire. I find that Detective Sergeant Long presented reliable and credible evidence. I accept his evidence.
I now turn to the evidence of Mr Bourne. The defence objected to the testimony of Mr Bourne on the following basis:[368]
The defence objects to the expert testimony of Mr Bourne to the extent that he purports to give expert evidence about the origin and cause of the fire in the relevant motor vehicle, the subject of the charge.
This objection is based upon our submission that:
1.Mr Bourne does not have the requisite expertise by either qualification or by experience or by a combination of both to given such evidence; and/or
2.Mr Bourne's evidence arose from a mistaken understanding by him of relevant aspects of the evidence and a failure to have proper regard to all relevant materials such that his expert opinion arose from a flawed understanding and incomplete understanding of the evidence led at trial upon which his evidence as to the origin and cause of the fire ought to have been founded.
[368] Email from defence counsel received 9 September 2020.
The defence confirmed that a previous objection to other parts of the evidence of Mr Bourne was withdrawn. The defence submitted that even if Mr Bourne's evidence was admitted it should be given limited weight.
The State responded to the objection contending that by his educational qualifications and his experience, Mr Bourne was qualified to give evidence concerning fire behaviour and in particular the cause and origin of fires in a vehicle. The State contended that the objection concerning the extent of the experience of Mr Bourne and the materials upon which he based his opinion, properly understood, was a submission in respect of the weight of the evidence.
The State also submitted that the State did not rely upon the evidence of Mr Bourne that the area of origin of the fire was at the rear passenger side of the vehicle. Counsel for the State submitted that the finding of Mr Bourne that the origin of the fire was not in the engine compartment was contrary to the State's case.[369] The State contended that given that the fire was, on the State's case, deliberately lit by the accused 'it's highly improbable that he would start a fire anywhere other than in the engine bay of the vehicle.'[370] The State's submission was that a finding should be made that the origin of the fire was in the engine compartment.[371] Therefore the State did not rely upon that part of the evidence of Mr Bourne. The evidence concerning the area of origin of the fire was led at trial for the reason that Mr Bourne's finding was relevant to his credibility.
[369] ts 2701.
[370] ts 2702.
[371] ts 2702.
I have outlined the nature and extent of Mr Bourne's experience in respect of fire investigation and vehicles. I accept that Mr Bourne has not observed a fire in a vehicle after a collision and that his primary background is in automotive engineering. However, Mr Bourne has in his capacity as an automotive engineer been involved in relevant professional training regarding the origin and causes of fires in vehicles and observed vehicles that have been incinerated. I accept the State's submission that Mr Bourne's expertise in automotive engineering does make him qualified to give evidence concerning vehicle componentry and the nature, construction and design of vehicle systems including fuel systems, brake systems and electrical systems in the vehicle the subject of the trial.[372] After reviewing Mr Bourne's qualifications and experience, I find that he is qualified to give the evidence presented at trial in respect of the origin and cause of the fire. I accept the State's submission that the matters raised by the defence in objection to Mr Bourne's evidence properly form part of my reasoning in assessing the weight to be given to that evidence.
[372] ts 2702.
The evidence from Mr Bourne in respect of the area of origin of the fire was unsatisfactory. A substantial part of the testimony of Mr Bourne addressed the area of the origin of the fire. Mr Bourne stated that he was highly confident that the area of origin of the fire was at the rear of the vehicle on the passenger side. That finding was disavowed by the State. That is understandable. The reasoning was flawed. Mr Bourne relied upon the scorched earth on the passenger side unaware that the firefighting concentrated on the driver's side. Mr Bourne relied upon the beach marks that showed the movement of the fire from the rear to the front. I find that he was mistaken in respect of that matter. Mr Bourne also relied upon his observation that the fuel‑filler pipe was missing. In cross‑examination, Mr Bourne accepted that it was possible that the fuel‑filler pipe assembly was still present but had moved.
In respect of Mr Bourne's testimony regarding the hypothesis that the collision caused an arcing event that ignited fuel vapour, his testimony was somewhat more satisfactory. In respect of that issue Mr Bourne relied upon his experience and training in automotive engineering.
Underlying Mr Bourne's erroneous conclusion regarding the origin and cause of the fire was his limited experience in assessing the cause and origin of fires. Mr Bourne is an engineer with some experience in assessing the effect of fire on vehicles. Mr Bourne has never given evidence as an expert in any proceedings. The manner in which Mr Bourne gave answers to questions reflected his lack of experience. His answers were often prolix, and on occasion he failed to precisely provide an answer to the question or proposition being put to him by counsel.
A significant issue arises as to what extent Mr Bourne's confidently held, yet erroneous, view that the area of origin of the fire was at the rear of the passenger side of the vehicle affects his testimony that assessed the hypothesis of the defence expert as to the origin of the fire. Mr Bourne was asked a series of questions by counsel for the State in an attempt to clarify that issue.[373] The proposition underlying those questions was clear, namely that if the origin of the fire was in fact (as Mr Tomlinson stated) in the engine compartment, did Mr Bourne still maintain that the fire did not start by the means postulated by the defence expert.
[373] ts 2361 ‑ 2366.
Ultimately, Mr Bourne stated that even if the fire did start in the engine bay then in his opinion it was improbable that the fire was caused by the suspension turret moving backwards, damaging fuel lines and with an arcing event causing a fire.[374]
[374] ts 2364.
I turn next to Mr Tomlinson. I find that Mr Tomlinson gave cogent and reliable evidence. Mr Tomlinson gave direct answers to the questions he was asked. His reasoning was clear. The State contended that Mr Tomlinson's hypothesis that an arcing event caused the fire is not based on evidence of identified compromised ruptured electrical cables. That is, there is no actual evidence that positively supports that conclusion.[375] Equally there is no actual evidence that supports the State's contention that the fire was deliberately lit, most likely with an accelerant.
[375] ts 2716.
The State contends that Mr Tomlinson concluded that the fire started accidently upon collision but that he was unable to exclude the possibility that it was intentional. The State submitted that was self‑evidently tautological. I disagree. Mr Tomlinson gave careful testimony that appropriately accepted that he could not state with certainty that the fire was a consequence of the arcing event after the collision. However, Mr Tomlinson stated that on the balance of probabilities he was satisfied of his conclusion. Mr Tomlinson's testimony in that regard reflected an experienced expert who understood that it was not possible to express a finding with certainty.
Based upon the expert opinion I find, contrary to the evidence of the State expert Mr Bourne, that the area of origin of the fire was in the engine compartment.
Having regard to Mr Bourne's limited experience, his erroneous view as to the primary area of origin of the fire and to his confusing evidence, I am left in doubt as to the correctness of his reasoning. I find that Mr Bourne's conclusion as to the area of origin of the fire is wrong. However, I give greater weight to his expert evidence regarding his opinion as to the likelihood of an arcing event occurring that led to the ignition of fire.
Based upon the expert opinion, I find that there is no evidence that an accelerant was introduced to the engine compartment to assist in starting the fire or accelerating the fire.
After careful reflection, based upon the expert opinions of Detective Sergeant Long, Mr Bourne and Mr Tomlinson, I find that there is a reasonable possibility that the fire started in the way described by Mr Tomlinson, namely that the effect of the collision was to cause an arcing event that ignited fuel vapours. As I have observed I accept Mr Bourne's expertise and have given weight to his opinion regarding the likelihood that the fire started in the way described by Mr Tomlinson. Having done so, I am unable to exclude as a reasonable possibility that the fire started in the way described by Mr Tomlinson.
I therefore find that there is a reasonable possibility that the fire was caused after the collision by an arcing event that ignited a fuel source. That is, the fire was an accident and not deliberately lit by the accused. I will revisit this finding and the evidence on which it is based when I consider all the circumstantial evidence as a whole.
Circumstance – lies
The State relied upon one lie as evidencing consciousness of guilt on the part of the accused. The State opened particularising four such lies but at the conclusion of the trial relied upon one lie as evidencing guilt. The four lies were particularised by the State in the following terms:[376]
1.The accused stated that prior to the vehicle hitting the tree he had felt himself blacking out.
2.The accused stated that he had first met Ms Yu in person after his wife's death.
3.The accused stated that the deceased grabbed the steering wheel and deliberately caused the vehicle to crash into the tree.
4.The accused's proximity to the burning vehicle as told to police in his various versions of events.
[376] Table prepared by the State particularising lies.
The State now only relies upon one lie as evidence of consciousness of guilt, namely that the accused had first met Ms Yu after his wife's death. The State relies upon the other lies in relation to assessing the credibility of the accused.
In respect of the contention that the accused told a lie that is evidence of a consciousness of guilt, I must be satisfied that the accused did in fact tell the lie particularised and if so, whether the lie was deliberate. I must then determine the significance of the lie in relation to the issues in this trial. That is, I must be satisfied that the lie is material to a fact in issue and determine whether the lie reveals knowledge of the offence or some aspect of the offence. I must determine whether the lie was told out of a consciousness of guilt.
I must not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. There are many reasons for post‑offence lies apart from a consciousness of guilt. For example, an accused may lie as a result of panic or fear, to escape an unfair accusation, guilt of some other offence or moral wrongdoing, or discreditable behaviour which while not being criminal behaviour, causes a person personal or public shame or admonishment. I must not take the contended lie as amounting to a consciousness of guilt for the purposes of an issue unless satisfied that there is no explanation of the conduct in relation to that issue other than a consciousness of guilt.
I am satisfied that the accused's statement to the police that he only met Ms Yu after his wife's death was a deliberate lie. However, that lie is clearly explicable on the basis that the accused feared personal and public shame for having commenced a relationship with another woman whilst married. The accused has previously engaged in a sexual affair with another woman while married to the deceased. During the period when the other affair occurred the accused did not inform the deceased nor any other member of his family. That is most understandable. His standing as a member of a rural farming community and his standing in his family as a committed husband and father would be jeopardised by that information.
The accused failed to inform his daughters that he had married Ms Yu. The accused's concern in that respect was not misplaced. The accused's daughter, Ms Felicity Johnston, later expressed her displeasure to the accused regarding his relationship with Ms Yu.
I am satisfied that the accused did lie to the police about the commencement of his relationship with Ms Yu. However, I am not satisfied that the lie in respect of Ms Yu is evidence of a consciousness of guilt. The lie, however, forms part of the lies upon which the State relies as evidence relevant to the assessment of the accused's credibility.
Other lies – credibility
The State relied upon the lies, which I have outlined at [409], for assessing the credibility of the accused insofar as his statements had exculpatory statements. I must decide whether the accused did lie as alleged by the State. If I find that the accused did so lie then I am permitted to take into account the fact that he lied in assessing the credibility of the accounts that the accused provided to the police regarding the allegations which are the subject of the count on the indictment. I must consider each lie in light of all the circumstances.
However, I must not follow a process of reasoning to the effect that because the accused has lied that is evidence of guilt. The lie can only be used for the purpose of assessing his credibility.
I now consider the lies particularised by the State, being that:[377]
1.the accused stated that prior to the vehicle hitting the tree he had felt himself blacking out;
2.the accused stated that the deceased grabbed the steering wheel and deliberately caused the vehicle to crash into the tree; and
3.the accused's proximity to the burning vehicle as told to police in his various versions of events.
[377] ts 2722 ‑ 2725.
First, in respect of the utterance made by the accused in his written statement and in his EROI of 5 January 2009 that he 'blacked out' prior to the collision, I have rejected the truth of this statement having regard to the expert evidence concerning the circumstances of the vehicle collision. Consequently, I find that the accused lied about losing consciousness prior to the vehicle colliding with the tree.
Second, the State further relied upon the contention that the accused's utterances concerning his belief that the deceased grabbed the steering wheel were a lie. I have considered this issue. I am unable to find that the accused lied. There is insufficient evidence to support that this utterance by the accused is a deliberate lie. I have already found that it is a reasonable possibility that the deceased did grab the steering wheel but only to correct the steering due to the inattention of the accused. I have outlined the utterances of the accused in which he expressed his belief that the deceased grabbed the wheel to commit suicide. However, I found at [280] that if the deceased did grab the steering wheel, she did not do so with a suicidal intent. That I have found that the deceased was not suicidal at that time does not necessarily mean that the accused was telling a deliberate lie. It is a reasonable possibility that the accused was expressing his belief as to why the deceased grabbed the steering wheel. His belief was, in my view, erroneous.
Third, the State further particularised as a lie the accused's utterances to the police concerning his proximity to the vehicle when it caught fire. I have outlined the relevant utterances of the accused when considering the State's contention that the accused should have presented with thermal injuries and soot. Relevant to establishing that the accused lied is the State's contention regarding the likelihood of thermal injuries and soot. I made findings in respect of this issue at [169]. In light of those findings, I am unable to find that the accused told a deliberate untruth concerning his proximity to the vehicle when it was on fire.
The State also referred to other utterances said to constitute lies, which were not outlined in the table of lies prepared by the State. During the State's closing address the State referred to the utterances of the accused in respect of the speed that the vehicle was travelling.[378] The lie, as I understand the State's contention, is that the accused stated that the vehicle was travelling at between 70 and 90 km per hour. The State contends that this is a lie given the expert evidence that the vehicle, at the time of collision with the tree, was travelling at an estimated speed of between 50 and 55 km per hour.
[378] ts 2724 ‑ 2726.
I am unable to accept that the accused's statement can be properly characterised as a lie. Clearly the accused was giving an estimate of his speed. He did not purport to suggest that he had looked at the speedometer at the time. In fact, during his EROI of 14 February 2018 the accused was asked how fast he was driving at the time of the crash. To that question the accused stated 'Look, I really don't know. I never, ever look at the speedo'.[379] The officer then referred the accused to his statement 'in previous recorded interviews' that he was travelling at a speed between 70 and 90 km per hour. To that question, the accused answered 'Yeah, so it would have been in that range.'[380]
[379] Exhibit 51, EROI conducted on 14 February 2018, ts 30.
[380] ts 2724; Exhibit 51, EROI conducted on 14 February 2018, ts 30.
The State also relied upon utterances of the accused in respect of whether he braked before the collision. During his EROI conducted in 2017 the accused stated that he could not recall whether he was braking.[381] In his EROI conducted in 2017 the accused stated that his 'left foot might have slipped under or sideways under the pedal, I think, I'm not sure.'[382] The accused stated that there was some resistance under the pedal. The State contends that the accused lied about this attempt to brake. However, I am unable to find that the utterance constitutes a deliberate lie. This utterance by the accused was vague and speculative.
[381] Exhibit 50, EROI conducted on 12 September 2017, ts 157.
[382] Exhibit 50, EROI conducted on 12 September 2017, ts 157.
Moreover, Sergeant Magorian stated that while he was unable to identify significant braking he could not exclude some level of braking taking place.
I therefore find that the accused has made utterances giving differing accounts regarding the circumstances of the collision. In particular, I reject the utterances of the accused that he lost consciousness. I must take the lies uttered by the accused into account in assessing his overall credibility. The lies can only be used in assessing whether the accused is to be believed when he says other, exculpatory, statements.
Consideration of the entirety of the evidence: has the State proven its case against the accused
I now consider whether the State has proved that the accused killed the deceased. I do so in light of the entirety of the evidence received at trial. I made findings when considering discrete aspects of the State's case. I now must evaluate those findings in light of the entirety of the evidence. Having done so, I am not satisfied that the State has proven its case beyond a reasonable doubt. Given my findings it necessarily also follows that the accused is not guilty of the statutory alternative offence of manslaughter.
The State relied upon motive. I find that the motive relied upon by the State is weak and tenuous. Further, there is no proportionality between the very weak and tenuous motive and the State's case being that the accused deliberately incinerated the deceased.
I am satisfied that the accused is a person of good character with a sound reputation in the community.
I find that the accused did tell lies to the police concerning the circumstances of the vehicle colliding with the tree. In particular, the accused told the police a lie contending that he blacked out (or lost consciousness) prior to the collision. However, the lies as to credibility do not overcome the deficiencies in the evidence relied upon by the State in its case.
The State's case required that three circumstance findings, which I have referred to as indispensable links, be proven beyond a reasonable doubt. First, the State contended that the accused deliberately rendered the deceased unconscious by means other than by driving the vehicle into the tree. The State referred to that as the stupefaction of the deceased. At [322] I made the finding that having regard to the evidence to which I referred, the State has not established that the accused incapacitated the deceased prior to, or immediately after, the collision. Upon revisiting that finding in the context of considering the entirety of the evidence, I find that the State has not proven beyond a reasonable doubt that the accused deliberately rendered the deceased unconscious by means other than by driving the vehicle into the tree.
Second, the State contended that the accused deliberately caused the vehicle to collide with the tree by driving the vehicle towards the tree whilst the deceased was seated in the passenger seat. At [290] I made the finding that having regard to the evidence to which I referred, the State has not established that the accused did so. Upon revisiting that finding in the context of considering the entirety of the evidence, I find that the State has not proven beyond a reasonable doubt that the accused deliberately caused the vehicle to collide with the tree by driving the vehicle towards the tree whilst the deceased was seated in the passenger seat.
Third, the State contended that the accused caused the vehicle to catch fire, by an unknown act either after the vehicle collided with the tree or immediately before the vehicle collided with the tree. At [408] I made the finding that having regard to the evidence to which I referred the State has not established that circumstance. Upon revisiting that finding in the context of considering the entirety of the evidence, I find that the State has not proven beyond a reasonable doubt that the accused caused the vehicle to catch fire by an unknown act either after the vehicle collided with the tree or immediately before the vehicle collided with the tree.
Conclusion and verdict
The State has not proven the count on the indictment beyond a reasonable doubt. Accordingly, I find that the accused is not guilty of the count. Further, I find that the accused is not guilty of the statutory alternative offence of manslaughter. Therefore, I enter a judgment of acquittal.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath4 DECEMBER 2020
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