The State of Western Australia v Mule
[2017] WASC 287
•6 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MULE [2017] WASC 287
CORAM: MCGRATH J
HEARD: 11 - 14 SEPTEMBER 2017
DELIVERED : 6 OCTOBER 2017
FILE NO/S: INS 261 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
VINCENZO MULE
Defence
Catchwords:
Criminal law - Trial by judge alone - Arson - Issue of identity - Circumstantial evidence
Legislation:
Criminal Code (WA), s 444(1)(a)
Criminal Procedure Act 2004 (WA), s 118, s 120(2)
Evidence Act 1906 (WA), s 106R
Result:
Verdicts of guilty on each count on the indictment
Category: B
Representation:
Counsel:
Prosecution : Mr E P Fitzpatrick
Defence: Mr M R Gunning
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Gunning Young Barristers & Solicitors
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Shepherd v The Queen (1990) 170 CLR 573
MCGRATH J: Vincenzo Mule stands charged with two counts of arson contrary to s 444(1)(a) of the Criminal Code (WA). The indictment dated 7 December 2016 pleads the two counts as follows:
(1)On 16 April 2016 at North Beach Vincenzo Mule wilfully and unlawfully destroyed a Mitsubishi Magna motor vehicle, registration number 1BPG 048, the property of Toni Cassandra Rossow.
And that motor vehicle was destroyed by fire.
(2)Further on the same date and at the same place Vincenzo Mule wilfully and unlawfully damaged a house at 21 Ellingham Street North Beach, being the property of the Department of Housing and Works.
And that house was damaged by fire.
The accused pleads not guilty to each of the two counts. He sought and was granted trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). The matter proceeded to a trial before me between 11 and 14 September 2017.
In these reasons for decision, I will consider the following:
1.Applicable principles of law and general directions.
2.An outline of the State case at trial.
3.An outline of the defence case at trial.
4.The elements of each offence and the issue at trial.
5.A consideration of count 2 on the indictment.
6.A consideration of count 1 on the indictment.
7.The verdict.
1. The legal principles and general directions
Given that this is a trial by judge alone I am required to state the principles of law that have been applied in coming to the verdict.[1] The accused may not be convicted of the counts on the indictment unless the State has proved the accused's guilt beyond a reasonable doubt. The accused is presumed innocent. The State bears the onus of removing that presumption of innocence by establishing guilt beyond a reasonable doubt. That burden of proof never shifts.
[1] Criminal Procedure Act 2004 (WA), s 120(2).
I must consider this case based upon the evidence which has been produced in the 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. That was the reason why a judge alone trial was ordered. To the extent that I have observed that media reporting, I have put it out of my mind. I do not speculate about matters that are not in evidence.
The State has preferred two counts on the indictment. I must consider each count separately and determine whether the State has satisfied me beyond a reasonable doubt that the accused is guilty of that count. If I find the accused guilty on one count it does not follow that the accused is guilty of the other count. I must not draw an inference against the accused or make any conclusion or be prejudiced for the reason that there is more than one count.
Having considered all the evidence, I may find the accused guilty of both counts, I may find him not guilty of both counts or I may find him guilty of one and not guilty of the other count. I will determine each count based on the evidence that is relevant to that count.
Special witness direction
The State called two witnesses, Toni Cassandra Rossow and Vyan Kader, who were both declared special witnesses pursuant to s 106R of the Evidence Act1906 (WA). No adverse inference may be drawn against the accused for the reason that Ms Rossow and Ms Kader were declared special witnesses and consequently their evidence was transmitted to the courtroom by means of a video link. I direct myself that is a normal procedure in court proceedings in Western Australia.
Statements read into evidence
The State read into evidence, by consent, a number of witness statements, namely, Kieran Cooper,[2] an officer of the Department of Fire and Emergency Services, John Pynes,[3] Building Manager at the Housing Authority (previously Department of Housing) and Abdul R Abdulla,[4] manager at the BP Service Station, Karrinyup. The statements of the respective witnesses become part of the evidence that I will consider. I will do so, in light of all other evidence. When a witness statement is read into evidence, I have not had an opportunity to assess the witness give the evidence. In the context of this trial that is not a difficulty for the reason that the factual matters outlined in the respective statements were not in dispute.
[2] ts 204 - 205.
[3] ts 213.
[4] ts 203.
2. The elements of the offence
Section 444(1) of the Criminal Code provides:
Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable -
(a)if the property is destroyed or damaged by fire, to life imprisonment; or
(b)if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of racial aggravation, to imprisonment for 14 years.
To prove that count 1 was committed by the accused, at the time and place pleaded, the State must prove each of the following elements beyond a reasonable doubt:
1.That the accused (identity);
2.Wilfully; and
3.Unlawfully;
4.Destroyed a motor vehicle being the property of Ms Rossow, namely a Mitsubishi Magna motor vehicle, registration number 1BPG 048.
The circumstance of aggravation was that the motor vehicle was destroyed by fire. I must be satisfied beyond reasonable doubt that that circumstance of aggravation is proven, should I find that the elements of the offence have been proved.
To prove that count 2 was committed by the accused, at the time and place pleaded, the State must prove each of the following elements beyond a reasonable doubt:
1.That the accused (identity);
2.Wilfully; and
3.Unlawfully;
4.Damaged a house at 21 Ellingham Street, North Beach, being the property of the Department of Housing and Works.
The circumstance of aggravation was that the house was damaged by fire. I must be satisfied beyond reasonable doubt that that circumstance of aggravation is proven, should I find that the elements of the offence have been proved.
3. State case
The State case was that on 16 April 2016 the motor vehicle owned by Ms Rossow, being the Mitsubishi Magna, registration number 1BPG 048 was wilfully and unlawfully destroyed by fire and at about the same time Ms Rossow's residence, being the property at 21 Ellingham Street, North Beach, was wilfully and unlawfully damaged by fire.
There was no issue at trial between the parties whether or not the motor vehicle was wilfully and unlawfully destroyed by fire on 16 April 2016. Further, there was no issue at trial between the parties as to whether or not part of the residence of Ms Rossow was wilfully and unlawfully damaged by fire on 16 April 2016. Rather, the issue was whether or not it was the accused who was the person who committed the two acts of arson.
The State's case in proving the identity of the perpetrator of the two acts of arson was circumstantial. Whilst the State relied upon recognition evidence, if accepted, to establish that the accused was at the front of Ms Rossow's residence at a time shortly before the reporting of the fire, there was no direct identification of the accused at the rear of the property actually committing the act of arson the subject of count 2. The circumstances relied upon by the State were substantially the same circumstances for each count. That is understandable, given that the two acts of arson were committed at two locations in close proximity and within minutes of each other.
4. Defence case
The defence case was that, whilst not disputing that there were two deliberately lit fires that damaged the property and destroyed the motor vehicle, the two acts of arson were not committed by the accused.[5] During opening address counsel for the accused particularised the issue at trial as 'who did it'.[6] A Notice of Alibi was given by the accused in the following terms:
Mr. Vincenzo Mule was not present when the offence is alleged to have occurred, and that:
The defence maintains that he was at 161 Grosvenor Road North Perth, from approximately 12.00 pm on the 15th April 2016, through to the time of his arrest on suspicion on the 16th April 2016.
[5] ts 381.
[6] ts 62.
At trial the Notice of Alibi was understood and agreed by the parties as meaning 12.00 midnight (12.00 am) or 0000/2400 on a 24 hour clock. Police Officer Robert Bruce Walker confirmed, that the police attended the accused's residence at 161 Grosvenor Road, North Perth at 2.55 pm on 16 April 2016 and that the accused was then arrested.[7] Therefore, the alibi defence was that the accused was at his Grosvenor Road, North Perth residence from 12.00 am on 15 April 2016 until 2.55 pm on 16 April 2016.
[7] ts 209.
In respect to the alibi, there is no onus on the accused to prove the alibi. The State must negative the alibi beyond a reasonable doubt. If the alibi is accepted then the accused must be acquitted. Further, even if I do not accept the alibi, but do not reject it, in that I regard the alibi as something that could be reasonably true, the accused must be acquitted. If the alibi is rejected, I must still go on and consider all the evidence and determine if I am satisfied beyond a reasonable doubt that the State has proven the two counts.
Accused did not give evidence
The accused did not give evidence. It is his right not to do so. No adverse inference can or should be drawn against the accused by him exercising that right.
Accused's record of interview
The accused participated in two records of interviews on 16 April 2016[8] and 20 April 2016[9] respectively. The accused was also present when the police conducted a search at his premises and at that time he did speak to the police.[10] The two records of interviews were edited by consent which is a normal procedure. No adverse inference against the accused may be inferred from the agreed edits to both interviews.
[8] Exhibit 14.
[9] Exhibit 17.
[10] Exhibit 13.
The accused did not have to speak to the police. Insofar that in parts of the interview he stated that he did not have anything else to say, he exercised his right. No adverse inference may be drawn against the accused for exercising that right.
Admissions by accused
At the commencement of the trial the accused made the following admissions:[11]
[11] Exhibit 1.
1. On 3rd February 2016, an Interim Violence Restraining Order was made and on 23rd March 2016 it was served on Vincenzo Mule.
2. The Mitsubishi Magna motor vehicle (registration) 1BPG 048 is the property of Toni Cassandra Rossow.
3. That vehicle was destroyed by fire.
4. The house at 21 Ellingham Street North Beach is the property of the Department of Housing and Works.
5. That house was damaged by fire.
6. The phone number 04[redacted] is allocated to Vincenzo Mule of 166 Grosvenor Road North Perth WA, start date being 21st March 2016.
7. The phone number 04[redacted] is allocated to Deborah Lamb of Unit 10, 1 Daly Street Larrakeyah NT, start date being 24th December 2014.
8. The phone number 04[redacted] is allocated to Toni Rossow of 21 Ellingham Street North Beach WA, start date being 27th March 2009.
9. The phone number 04[redacted] is allocated to Roger (Roy) Scheltens of 46 Kinsella Street Joondanna WA, start date being 3rd September 2012.
10. The phone number 04[redacted] is allocated to Stephen Sokol of 951 Great Northern Highway, Millendon WA, start date being 13th January 2016.
11. On the 15th April 2016, Vincenzo Mule was at the Karrinyup BP Service station with Jesse Lamb, where he obtained fuel and he confirms that the CCTV photograph stills depict him and the Nissan X‑trail.
I will turn and consider count 2 before considering count 1 on the indictment. As will become evident, the circumstances that the State relies upon are applicable to both counts. However, it is necessary that I consider both counts separately and determine the counts in light of the admissible evidence relevant to each respective count.
5. Count 2
Wilfully/Unlawfully
The issue at trial was identity. I will, though, prior to considering the issue of identity in count 2, consider the other elements of that count. I must be satisfied that the property was damaged wilfully. If an act results in damage to the property, a person wilfully damages the property if they do the act intending to damage the property, or knowing or believing that the act is likely to result in damage to the property. 'Likely' in that context means probable, being a better than 50% chance.
The evidence of the State's arson expert, Officer Walters, was that the fire at the property was an incendiary fire with the possible cause of a mobile heat source introduced to combustible items towards the rear pergola area.[12] A mobile heat source included a lighter, a blowtorch or something similar.[13] Officer Walters excluded any 'accidental causes' of the fire at the property.[14]
[12] ts 226.
[13] ts 226.
[14] ts 226.
I must also be satisfied beyond a reasonable doubt that the house was damaged unlawfully. An act that causes damage to the property of another person and which is done without the consent of that other person is unlawful unless it is authorised or justified or excused by law. The property which was tenanted to Ms Rossow is owned by the Housing Authority of Western Australia.[15] Mr Pynes' statement confirmed that the Housing Authority did not give consent for any person to damage the property at 21 Ellingham Street, North Beach.[16]
[15] ts 213.
[16] ts 213.
I now turn to the issue at trial being that of the identity of the perpetrator.
Identity - the issue at the trial
The State seeks to prove the element of identity by circumstantial evidence.
Circumstantial evidence is evidence of circumstances that may be relied upon, not for proving a fact directly but instead as pointing to the existence of a fact. There are rules in law that apply in circumstantial evidence cases and drawing inferences.
Inferences are the drawing of conclusions, logical conclusions that can be drawn from the evidence. I can only draw an inference that is an inference against the accused if I find that it is the only reasonable inference available. If I believe that there is another reasonable explanation open, then I cannot draw the inference against the accused.[17]
[17] Shepherd v The Queen (1990) 170 CLR 573.
When I am undertaking that exercise of drawing inferences from the evidence, the evidence is not just considered in a piecemeal approach. I must consider all the evidence and determine what inference is available from looking at all that evidence together.
I now turn to outline and consider each of the circumstances relied upon by the State to prove that the accused was the person who unlawfully and wilfully lit the fire that damaged the property. The State case relies upon the following circumstances:
1.The violent relationship between the accused and Ms Rossow.
2.The previous threat by the accused made to Ms Rossow that he would set fire to her property.
3.The accused attended Ms Rossow's residence on the afternoon of 15 April 2016, moving furniture in the backyard and piling that furniture near the back door in preparation for the planned act of arson.
4.The accused attended Ms Rossow's residence on the afternoon of 15 April 2016, removing the light bulb front the front porch of the premises in preparation of the planned act of arson.
5.The accused used a mobile telephone, belonging to another person namely Jesse Mark Lamb, to contact Ms Rossow on 15 and 16 April 2016 via text messages in order to monitor her location and movements in preparation for the planned act of arson.
6.The accused used a mobile telephone, belonging to another person namely Mr Lamb, to contact Ms Rossow on 15 and 16 April 2016 via telephone in order to monitor her location and movements in preparation for the planned act of arson. The mobile telephone calls that were made by the accused were made at times when the mobile telephone was in close proximity to the relevant Optus mobile towers in North Beach which places the accused in close proximity to Ms Rossow's residence and not at his North Perth residence.
7.The accused used his own mobile telephone on 16 April 2016 at 4.02.35 am at which time his mobile telephone was in proximity to the Optus Waterman mobile tower, North Beach. That telephone call places the accused in close proximity to Ms Rossow's residence and not at his North Perth residence. Further, the accused used his own mobile phone during the night of 15 April 2016 to make telephone calls which calls were made at times when his mobile phone was in close proximity to the relevant Optus mobile tower in North Beach.
8.The accused was not at his residence after midnight on 15 April 2016 which is proven by mobile telephone records.
9.The accused was recognised by Ms Rossow at the front of her property at approximately 4.25 am on 16 April 2016.
10.Ms Rossow telephoned 000 at 4.25 am on 16 April 2016 and subsequently the police attended at her residence at 4.40 am. The fire at the motor vehicle was reported to the Fire and Emergency Services at 4.58 am and the fire at Ms Rossow's residence was reported at 5.18 am.[18]
[18] ts 204.
The State case also relies upon utterances made by the accused during his record of interview that are said to be deliberate lies that are relied upon to prove his guilt.[19] I will consider that aspect of the State case after considering the evidence of the circumstances relied upon by the State to prove identity.
The violent relationship between the accused and Ms Rossow
[19] Edwards v The Queen (1993) 178 CLR 193.
The relationship between the accused and Ms Rossow commenced in August/September 2015 and was marked by violence. The accused would physically assault Ms Rossow. Ms Rossow recalled that she was physically assaulted whilst in her car in Innaloo.[20] On one occasion, Ms Rossow recalled that she was struck in the head by the accused resulting in hospitalisation and staples being used to treat the wound.[21]
[20] ts 70.
[21] ts 125.
Ms Kader, a neighbour whose house shares a common wall with Ms Rossow[22], recalled observing the relationship and described 'fighting, violence, screaming, shouting'.[23] Ms Kader referred to one occasion when she observed fighting and screaming which resulted in Ms Rossow bleeding and needing to go to hospital.[24]
[22] ts 190.
[23] ts 184.
[24] ts 185.
During both records of interview the accused displayed his capricious and acrimonious attitude towards Ms Rossow. The accused referred to Ms Rossow as a 'crack whore'[25], and made extraordinary disparaging comments about her character.[26] The accused expressed anger that he felt used by Ms Rossow as 'he acted as her handyman' and was then discarded.[27]
[25] ts 8,10, 14 (record of interview 16/4/16); ts 17 (record of interview 20/4/16).
[26] ts 8, 9, 10, 12, 13, 14 (record of interview 16/4/16); ts 16, 17 (record of interview 20/4/16).
[27] ts 16 (record of interview 20/4/16).
On 2 February 2016, as a consequence of the violence, an interim violence restraining order (VRO) was made against the accused. On 23 March 2016, that interim VRO was served on the accused.
Ms Rossow gave evidence that the day after the VRO was served on the accused her car was full of rocks and dirt.[28] On two occasions her tyres were slashed, and on other occasions pot plants were smashed at her residence, and the flywire screen had been damaged. Ms Rossow also recalled the front light bulb being removed on other occasions. Whilst those incidents occurred during the period when the accused and Ms Rossow were in a relationship, or immediately after that relationship ended, I am unable to make a finding that the accused was the perpetrator who slashed the tyres, removed the light bulbs, and damaged the car or property at the residence on those various occasions. There was no direct observation of who caused that damage.
[28] ts 71.
However, I am able to make the finding that the accused has a deep and abiding hatred towards Ms Rossow that clearly, based upon the utterances during the records of interview, was held at the time of the allegations in the indictment. I accept Ms Rossow's evidence that the accused physically assaulted her and inflicted injuries upon her. In particular, there was one assault that resulted in Ms Rossow being hospitalised. That assault, as I have referred, was observed by Ms Kader.
Threat made by the accused to Ms Rossow to burn her property
Ms Rossow gave evidence, under cross‑examination, that the accused had previously threatened to burn her property.[29] Whilst Ms Rossow was being cross‑examined concerning her evidence that she recognised the accused at her property on 16 April 2016 she answered that 'he'd previously threatened he was going to burn my house down'.[30] During cross‑examination, Ms Rossow again reiterated that 'he had threatened to burn my house down'.[31] Counsel for the accused asked Ms Rossow whether she told the police about the threat to burn her property which stated 'yeah, I did at Scarborough Police Station I told them that'.[32] Counsel then asked:[33]
You would agree with me that in the two statements that you gave to the police on 16 April '16 and again on 28 or 29 April 2016 in neither of those statements did you make any mention of that threat?---No, but I had verbally at Scarborough Police Station and I'm sure they'd have that in their, you know---
No further cross-examination.
[29] ts 102, 105.
[30] ts 102.
[31] ts 105.
[32] ts 125.
[33] ts 125.
In re‑examination, Ms Rossow stated that the threat to burn her house down occurred at the time that she was assaulted by the accused resulting in her hospitalisation, which was before the VRO was served on the accused.[34] Ms Rossow recalls that the accused held a serrated knife telling Ms Rossow that she could be hurt and then stated that he will burn the house down.[35] Ms Rossow was asked why he had made that threat to which she answered that the accused did not want her to 'see other men'.[36] In re‑examination, Ms Rossow was asked about the threat and stated:[37]
[34] ts 126.
[35] ts 126.
[36] ts 126.
[37] ts 125 - 126.
Ms Rossow, just dealing with the threat to burn your house down---Yes.
When was that? When did that occur?---I can't tell you the exact date, but it was after he'd put me in hospital and I had staples put in the back of my skull.
Right?---When I - Scarborough Police Station would know that I actually did say that verbally to them, you know.
When, when did you have staples, I mean if you can give us the month? We're dealing now with April 2016. In relation to that when were you in hospital?---I do have it in my diary and I've got the papers at home, but I can't exactly tell you when. It would have been - no, the date's eluded me, but Sir Charles Gairdner would have - know when I went in there to get the staples in my head because I got a head injury.
And how did the - the threat, when was the threat uttered and how was it said? On the same day you were injured, you had to have the staples in?---Around that time because I remember when I was in Scarborough Police Station in the room being filmed that, you know, I had actually told them that he had been threatening to burn my house down.
Right. And in what circumstances? When was it? Were you at your house or where were you when he said those words? How was it---?---It would have been at my place because he's also got a serrated kitchen knife out of the drawer and waved it around, telling me, you know, it's possible I could get hurt.
So are you able to give us any - so in your house, it was said in your house?---Yes, yeah, he told me that he'd burn the house down.
Right. Did he give any reason why?---Because I'm not allowed to leave him and I'm not allowed to have - see other men, even though he was seeing three other girls at the same time as when I was seeing him.
Was this before or after the VRO had been served?---Before
It was clear that by the end of the examination of Ms Rossow that her evidence was that the threat to burn her property was made at around the time when she was subject to the assault by the accused that resulted in her being taken to hospital. Ms Rossow's evidence was that she did tell the police at the time that she was assaulted. Ms Rossow's evidence was that she told the police, who were investigating the assault, about the threat to burn her property. Ms Rossow's evidence does not support any contention that she told the police investigating the two counts on the indictment about any threat. No questions were asked by either the defence or State counsel of any officer as to whether Ms Rossow did or did not mention the threat at the time she gave her statements concerning the events of 16 April 2016.
I accept Ms Rossow's evidence concerning the threat. Ms Rossow was subject to examination and gave credible and reliable evidence. I find that the accused did threaten to burn Ms Rossow's property and that threat was made at or about the time of the assault when Ms Rossow was hospitalised.
Furniture and light bulb on the afternoon of 15 April 2016
Ms Kader, a neighbour of Ms Rossow, gave evidence that during the afternoon of 15 April 2016 she observed the accused in the front of the property at Mr Rossow's residence. Ms Kader was unsure of the time during examination‑in‑chief, but estimated that she made the observation of the accused at between 2.00 pm to 3.00 pm.[38] In cross‑examination, Ms Kader agreed that she told the police that the time was about 3.00 pm and that was accepted as truthful.[39] She then clarified by saying 'maybe I said around 3 pm'.[40]
[38] ts 188.
[39] ts 193.
[40] ts 193.
Ms Kader stated that she was hearing 'lots of sounds' at the front of her house and saw the accused in Ms Rossow's front yard.[41] Ms Kader said the noise continued for some 10 to 15 minutes but that she watched him for five to six minutes and recalled that he was wearing dark clothes.[42] Further, Ms Kader observed that there was something heavy in his hand.[43] The accused was observed leaving by walking towards the park.[44] In re‑examination, Ms Kader clarified that she observed the accused 'for a few minutes' being 'like around 5 to 10 minutes'.[45]
[41] ts 186.
[42] ts 187.
[43] ts 186.
[44] ts 187.
[45] ts 201.
Ms Rossow recalled returning to her residence on 15 April 2016 and noticed that the light bulb on the front porch had been taken.[46] On 16 April 2016, after the fire at the residence, Officer Walters inspected the property. The evidence of Officer Walters was that the light bulb on the front porch was missing.[47] The State's case is that the accused removed the light bulb at the time that he visited the residence on the afternoon of 15 April 2016 and that he did so for the purpose of preparing for the planned arson.
[46] ts 73.
[47] ts 226.
Ms Rossow also observed that on the afternoon of 15 April 2016, in the backyard of her residence, furniture items had been piled up against the back door.[48] The furniture items included a couple of couches and coffee table.[49] Ms Rossow also observed a number of broken pot plants.[50] The State's case is that the accused moved the furniture in the backyard and placed it near the back door, at the time he visited the house on the afternoon of 15 April 2016, and that he did so for the purpose of preparing for the planned arson being to set in place the fuel for the fire.
[48] ts 73.
[49] ts 72, 73, 75, 76.
[50] ts 72.
The evidence of Officer Walters was that the cause of the fire was a heat source to combustible items at the rear towards the rear pergola area.[51] The maximum fuel load was at the back to the right hand side of the rear door.[52] Photographs were received in evidence that showed the damage to the right hand side of the back door of the property including a mattress destroyed by the fire.[53]
[51] ts 226.
[52] ts 216.
[53] Exhibit 15; ts 218 - 219.
Consequently, after observing the damage, Ms Rossow contacted the police regarding the broken pots and the piling of the furniture.[54]
[54] ts 76.
In respect to this circumstance the defence contends that the accused was not at the property on the afternoon of 15 April 2016. The contention of the defence was that the recognition of the accused by Ms Kader was not reliable.
One aspect of the defence case that her recognition was unreliable was the suggestion that Ms Rossow, upon observing the damage at the property, told Ms Kader that it must be 'Vince'. Ms Kader recalled being asked by Ms Rossow whether she had seen anyone there to which she said it was the accused.[55] Ms Kader rejected the proposition that she was mistaken.[56]
[55] ts 196.
[56] ts 196.
Reliance is also placed by the defence on the telephone records of the accused's telephone calls on 15 April 2015. I outline the nature of the evidence below at [64] ‑ [95]. The consequence of the mobile telephone records is that the accused's mobile telephone was in the North Perth area for most of the afternoon of 15 April 2015. Further, the travel time by car between the accused's residence in North Perth to Ms Rossow's residence in North Beach was estimated at a minimum to be 20 minutes.[57] It could be asserted that the accused did not have possession of his mobile telephone and that the telephone was being used by another at that time. There was no evidence regarding that possibility.
[57] Exhibit 28.
However, there was a time, consistent with the location of the mobile telephone, between 14.19.13 and 15.07.19, when the accused may have travelled to North Beach.[58] During closing submissions, counsel for the accused accepted that it 'was possible' for the accused to have travelled from North Perth to North Beach, having time to enter Ms Rossow's property and to return.[59] I agree. Whilst the timeframe is very tight it is certainly open for the accused to have done so. The defence relied upon the fact that the accused does not own a car and that was the only possible means to travel between the two locations given the time period available. There was no suggestion that the accused is other than an able bodied adult male who is capable of driving. I am able to find that he had the time to attend the property if he travelled by vehicle.
[58] ts 342; exhibit 19.
[59] ts 386.
In respect to this issue, I also consider the testimony of a defence witness, the accused's sister Margarita Antonia Gibson, who gave evidence that she met up with the accused to go shopping on the afternoon of 15 April 2016. Further, that Ms Gibson was endeavouring to contact the accused during the afternoon. The CCTV footage from the North Perth shopping centre was produced which showed both within the shopping centre at around 4.49 pm on 15 April 2016.[60] Ms Gibson considered that it was likely that she would have picked up her brother prior to that time. The telephone records indicate that there was a connected telephone call between Ms Gibson's telephone number and the accused at 14.05.46 and then at 15.44.11.[61] There are other telephone calls but no connection is recorded.
[60] Exhibit 29.
[61] Exhibit 19.
I find that the evidence of Ms Gibson was not inconsistent with the State case that the accused attended at Ms Rossow's property during the afternoon of 15 April 2016.
I therefore, turn to assess the reliability of Ms Kader's recognition evidence.
Ms Kader had met the accused on four to five occasions with the longest conversation being about 10 minutes.[62] However, when asked how many times she had seen the accused Ms Kader said that he was there most of the time over a six month period.[63] I find that Ms Kader was a reliable witness who had a sound basis for her recognition of the accused. The accused was a person known to her who she had met on a number of occasions and had observed the accused often over a reasonably significant period being six months.
[62] ts 200.
[63] ts 200.
Ms Kader had very good conditions to observe the accused on the afternoon of 15 April 2016. There is no basis to find other than her view was unimpeded, lasted for a few minutes and with good light and clear visibility.
Ms Kader gave cogent and reliable evidence. I find that Ms Kader did observe the accused at the residence and I accept her evidence concerning the hearing of breaking noise when the accused was present at the property.
I also accept the evidence of Ms Rossow concerning the furniture that had been piled up towards the back door and that an outside light bulb had been taken from the property on 15 April 2016.
The only inference reasonably open is that the accused attended at Ms Rossow's property during the afternoon of 15 April 2016 and whilst at the property, moved the furniture and placed that furniture at the back door. Further, at that time the accused took the outside light bulb from the front porch.
Mobile telephone records
The State relied upon evidence from an expert who produced records of Optus that establishes the mobile tower that was utilised for respective telephone calls made from the relevant mobile telephones. An officer of Optus, Ms Jasmin Watson, in turn produced the relevant mobile telephone records for the relevant subscriber accounts.
There was no dispute at trial that the accused was the subscriber of Optus mobile telephone service 04[redacted], that Ms Rossow was the subscriber of Optus mobile service 04[redacted] and that Mr Lamb used Optus mobile telephone number 04[redacted] which was the subscriber number of his mother Deborah Lamb.
I will first consider the evidence of Mr Lamb concerning how his mobile telephone came to be in the possession of the accused and used by the accused. I will then outline the mobile telephone evidence.
Mr Lamb's evidence - mobile telephone 04[redacted]
Mr Lamb gave evidence that on the afternoon of 15 April 2016 he met up with the accused, who he had known for about a month, and another friend Steve.[64] On 15 April 2016, Mr Lamb was living in his car which was a Nissan X‑Trail registration number 1CMQ 625.
[64] ts 157.
Mr Lamb confirmed that he uses mobile telephone number 04[redacted] which is subscribed to by his mother, Ms Deborah Lamb. On 15 April 2016, Mr Lamb recalled letting the accused use his mobile telephone 'on and off all night' and that the accused had the telephone for quite a while that night.[65]
[65] ts 166.
Mr Lamb gave evidence that on the night of 15 April 2016 at about 9.30 pm he drove to North Beach with the accused who wished to visit Roy Scheltens.[66] After that visit Mr Lamb recalls being asked to drive around the corner to another house. The accused left the car and Mr Lamb remained in the car. Upon returning the accused said no one was home and asked to be driven around the back alley. After that detour Mr Lamb drove to the BP Service Station in Karrinyup. The attendance at the BP Service Station is verified by the CCTV footage of the accused entering the service station at 11.02 pm on 15 April 2016.[67]
[66] ts 159.
[67] Exhibit 11.
Mr Lamb gave evidence that after attending the BP Service Station in Karrinyup he was tired and that he wanted to retire for the night. Consequently, both Mr Lamb and the accused returned to the accused's residence at Grosvenor Road, North Perth. After having a meal Mr Lamb went to sleep on a couch. At that time, the accused was on the couch next to him. Mr Lamb gave evidence that he left his car keys and mobile telephone next to the couch near his head.[68]
[68] ts 166.
Therefore, Mr Lamb was asleep around midnight. He recalls waking during the night to go to the toilet. At that time, the accused was not on the couch next to the couch where Mr Lamb was sleeping. Mr Lamb went through the only other room, which is the bedroom, to go to the toilet. Mr Lamb was unable to confirm whether the accused was or was not present in the bedroom. Therefore, the last time that Mr Lamb saw the accused at the residence was around midnight. He was unable to positively say that the accused was present after that time. The defence case is that the accused did remain at the residence.
Accordingly, the State case is that the accused had possession of and used Mr Lamb's mobile telephone on 15 and 16 April 2016. Prior to 12.00 midnight on 15 April 2016 Mr Lamb gave his mobile telephone to the accused. After Mr Lamb retired, sometime after 12.00 midnight on 15 April 2016, his mobile telephone was readily available to the accused if the accused chose to take it whilst Mr Lamb was asleep.
During the cross‑examination of Mr Lamb the proposition was put to Mr Lamb that he left the accused's house in the early hours of 16 April 2016 to buy drugs. Consequently, Mr Lamb must have taken his mobile telephone and that explains the location of the mobile telephone in the North Beach area. Further, the proposition was put to Mr Lamb that he was contacting Ms Rossow. Mr Lamb's answer was that he did not leave the accused's residence after midnight on 15 April 2016.[69] Further, that he does not know Ms Rossow and therefore, did not and would not make contact with a person who he does not know.[70] I accept the evidence of Mr Lamb as both cogent and reliable. I do not accept that Mr Lamb left the premises, travelled to the North Beach area, and used his mobile telephone. I accept Mr Lamb's evidence that the accused did use his mobile telephone on the night of 15 April 2015. I accept Mr Lamb's evidence that he went to sleep and left his mobile and car keys next to the couch he slept on.
[69] ts 177 - 178.
[70] ts 176.
Mr Lamb's mobile telephone was used to send both text messages and telephone calls. I will first consider the State case regarding the text messages.
Text messages
Ms Rossow gave evidence that she commenced receiving text messages during the night of 15 April 2016 and into the early hours of 16 April 2016 from a number she did not recognise. The police downloaded the texts from Ms Rossow's mobile telephone which was received as a State exhibit.[71]
[71] Exhibit 26.
The mobile telephone number of the sender was 614[redacted] (admitted that the subscriber is Deborah Lamb) and the receiver was 04[redacted] (admitted as being Ms Rossow's number).
The State case is that the text messages were sent by the accused using Mr Lamb's mobile telephone.
The text messages were described by Ms Rossow as saying 'would you like a cuddle?', 'come to my place' and 'I've got something for you'.[72] Ms Rossow asked a friend Mr Scheltens to attend her property. He did so.
[72] ts 81.
Both Ms Rossow and Mr Scheltens gave evidence that they were both at Ms Rossow's residence when the text messages were received. I find that was the case. Mr Scheltens decided to answer the texts, with the approval of Ms Rossow, in order to find out who was sending the messages. Mr Scheltens gave evidence that after exchanging texts with the sender he formed the view that the texts 'were not as friendly as they initially started to be' and that they appeared to be from someone that knew her.[73] Ms Rossow recalled that Mr Scheltens left her residence at about 3.30 am on 16 April 2016.[74]
[73] ts 148.
[74] ts 81.
The exchanged text messages were produced to the court.[75] The content of the messages received accords with the recollection of both Ms Rossow and Mr Scheltens. The messages sent on 16 April 2016 include one sent at 2.52.33 asking what Ms Rossow was doing and whether she was 'gonna come or what'. The reply at 2.55.01 am was that Ms Rossow was going to bed. The messages in response are persistent, further inquiring as to whether Ms Rossow will reply. At 2.59.43 and 3.01.57 Ms Rossow's number sends a text stating that she intends to go to bed. At 3.02.32 the text from Ms Rossow's number says that the telephone is being turned off.
[75] Exhibit 26.
At 4.26.36 a text is sent from Mr Lamb's mobile telephone saying 'are you still awake'. This text is of some significance. The State case is that the mobile telephone is in the possession of the accused and that the accused is at or near Ms Rossow's residence. The inquiry at that time in respect to whether Ms Rossow is asleep is to determine the location of Ms Rossow, whether she is at the property and if so, asleep. On the State case, the fire is lit shortly after that text. Further, the State case is that the accused was recognised by Ms Rossow at her residence at 4.25 am. I will consider that evidence below.
The relevance of the text messages on the State case is that they are the means for the accused to endeavour to find out whether Ms Rossow is at her residence and also serves to show the ongoing animosity that the accused holds in respect to Ms Rossow.
Mobile telephone calls
I will now consider the mobile telephone evidence adduced by the State in respect to actual telephone calls. I heard evidence from two experts being Officer Walters, the police arson examiner,[76] and Siriam Kanakagiri, the Optus technical specialist.[77] I am not bound to accept and act upon any witness, including an expert witness. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert opinion is unreliable.
[76] ts 214 - 229; 285 - 310.
[77] ts 266 - 285.
I will first outline the evidence of the mobile tower network.
Tower information
The State relied upon evidence from Mr Kanakagiri, Optus technical specialist, to give expert opinion regarding the operation of the mobile network in Western Australia. That testimony confirmed that mobile network towers provide signal coverage to Optus subscribers. Each of the mobile network towers covers a specific geographic area in order that subscribers may place telephone calls or access data.[78] If a telephone call is made, the subscriber is directed to camp on a particular tower and if there are sufficient resources the call is placed and travels through the switching network. The mobile network tower that is contacted when a telephone call is placed is determined by the tower providing the best strength. If there is an obstacle between the subscriber and the closest tower then the mobile may chose the second closest tower if there is a stronger signal.[79] Similarly, if the tower's resources are occupied due to a large number of callers then another tower or a different carrier on the same tower would be used. Mr Kanakagiri confirmed that 4.00 am is one of the quieter times on the network.
[78] ts 266.
[79] ts 282.
The handset or system is expected to camp on the best server in terms of signal strength. A subscriber may, in the case of one telephone call, be switched from one base station to another including switching between four channels of the 2100 megahertz band, switching to another band, and also between the 3G and 4G network.[80] Mr Kanakagiri illustrated this process by reference to the Waterman tower. A mobile handset camps off the tower with the strongest signal. Therefore, if a person was in Waterman there is no expectation that the Hyde Park tower would be utilised. In between the two areas are a number of other towers which would be selected if the Waterman tower was not the strongest signal.[81]
[80] ts 269.
[81] ts 274, 284.
Mr Kanakagiri produced maps as exhibits showing the coverage provided by specified mobile network towers, namely the Hyde Park, Hyde Park in an easterly direction, North Perth, Karrinyup and Waterman towers.[82] Each of the exhibits identify the location of the respective towers on a map, the cell ID for each tower and delineates the predicted probable cell coverage for each tower and the predicted possible cell coverage for each tower. The probable cell coverage area plot indicates the predicted areas in which each cell is likely to serve. The possible cell coverage area indicates the total predicted area in which the cell has sufficient level to be able to support a call.
[82] Exhibits 21, 22, 23, 24, 25.
The cell ID, which is the code allocated to each of the towers, were confirmed for each tower being Hyde Park (Cell ID 53187), North Perth (Cell ID 60311), Karrinyup (Cell ID 50676), Hyde Park East (Cell ID 29580) and Waterman (Cell ID 53504). The evidence was that the Waterman mobile tower was the tower utilised with telephone calls from Ms Rossow's residence and the immediate area.[83]
Optus evidence
[83] Exhibit 25.
Ms Watson, Optus Officer, produced the telephone records of mobile number 04[redacted] which is subscribed to by the accused.[84] In addition, Ms Watson produced the telephone records of mobile number 04[redacted] which is subscribed to by Ms Rossow.[85]
[84] Exhibit 19.
[85] Exhibit 20.
The integrity and veracity of the Optus telephone records produced were accepted by both parties. Ms Watson clarified during her testimony the meaning of each column in exhibits 19 and 20 respectively. That evidence was not challenged. For each call details are given of the Switch (either a mobile or landline switch), Date, Connect (time connected), Conv (conversation time), Ans (whether answered – y for yes and f for fail), A Number (who made the call), B number (who received the call), the IMEI (serial number of the handset), First Cell ID/SAC (first cell to have carried the call) and Dialled Digits (which accords with the B number being the receiver). Ms Watson gave clarifying evidence regarding the occasions on the records when there were apparently telephone calls at the same time in a row. Ms Watson stated that the three lines represent each leg of the telephone call with the first leg being the A party calling the B party, the second leg is the B party receiving the telephone call, and the third leg being the forwarding of the call to the Optus voicemail service (being number 04[redacted]).[86]
[86] ts 239 - 240.
Ms Watson confirmed that where the numbers 61 is the prefix of either the A number or B number that indicates that the IMEI and First CellID/SAC is related to that one specified number.[87] That prefix 61, therefore, shows the mobile tower which the call was routed through from that specified number. If there is a hash symbol in the IMEI column that indicates that the telephone is either turned off or does not connect with the tower.[88]
The telephone calls by the accused
[87] ts 241.
[88] ts 263.
The accused's mobile telephone (04[redacted]) was used at various times, relevantly:[89]
1.At 22.15.20 on 15 April 2016 the accused's mobile telephone was used to make a telephone call to an unrelated number using the Waterman mobile telephone tower.
2.At 22.46.56 on 15 April 2016 the accused's mobile telephone was used to make a telephone call to an unrelated number using the Karrinyup mobile telephone tower.
3.At 22.54.23 on 15 April 2016 the accused's mobile telephone was used to make a telephone call to an unrelated number using the Waterman mobile telephone tower.
4.At 22.54.51 on 15 April 2016 the accused's mobile telephone was used to make a telephone call to an unrelated number using the Waterman mobile telephone tower.
5.At 23.01.28 on 15 April 2016 the accused's mobile telephone was used to make a telephone call to an unrelated number using the Karrinyup mobile telephone tower.
6.At 0.09.07 on 16 April 2016 the accused's mobile telephone was used to make a telephone call to Ms Rossow's mobile telephone using the Hyde Park tower. There was a connection but the call was only three seconds in duration.[90]
7.At 4.02.35 on 16 April 2016 the accused's mobile telephone was used to make a telephone call to Ms Rossow's mobile telephone using the Waterman mobile tower.[91] The call was not connected but the making of the call was recorded.
[89] Exhibit 19.
[90] Exhibit 19; ts 243.
[91] Exhibit 19; ts 244.
Mr Lamb's mobile telephone (04[redacted]) was used at various times on the night of 15 April 2016 and into the early hours of 16 April 2016:[92]
[92] Exhibit 20.
1.At 0.16.42 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.[93] The call was connected.
[93] Exhibit 20; ts 251.
2.At 0.21.47 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.[94]
[94] Exhibit 20; ts 251.
3.At 0.25.40 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.
4.At 1.44.46 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.
5.At 1.47.03 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.
6.At 1.47.55 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.
7.At 1.48.37 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Hyde Park mobile tower.
8.At 2.51.58 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Balcatta South mobile tower.
9.At 2.53.45 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Balcatta South mobile tower.
10.At 3.11.03 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Karrinyup mobile tower.
11.At 4.03.28 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Waterman mobile tower. Ms Rossow was also using the Waterman tower to receive that call.
12.At 4.04.14 on 16 April 2016 Mr Lamb's mobile telephone made a call to Ms Rossow's mobile telephone using the Waterman mobile tower. Ms Rossow was also using the Waterman tower to receive that call.
The mobile telephone calls, although failing to be answered or only having seconds recorded when answered, demonstrates the accused's ongoing interest in Ms Rossow and in particular, on the relevant dates. Moreover, the calls are supportive of the State's contention that the accused was endeavouring to determine the location of Ms Rossow during the period prior to the acts of arson. Significantly, the mobile telephone call records place the accused in the North Beach area in close proximity to the residence of Ms Rossow. In particular, the accused's mobile telephone was used to make a call to Ms Rossow's mobile telephone at 4.02.35 and Mr Lamb's mobile telephone was used to make calls to Ms Rossow's mobile telephone at 4.03.28 and 4.04.14 respectively. The mobile telephone tower used by the two telephones was the Waterman mobile tower. That places the accused in the vicinity of Ms Rossow's residence at a time in close proximity to the act of arson and contrary to the assertion of the accused in his alibi.
I find that the telephone records were reliable. I also find that the evidence of Mr Lamb was credible and reliable. I do not accept the suggestion that he was involved in the offending. There is no evidentiary basis for such an assertion. I find that the accused had possession of Mr Lamb's mobile telephone and that he was the person who made the relevant telephone calls as recorded in the Optus records.
Identification/Recognition evidence of Ms Rossow
Ms Rossow recalled that Mr Scheltens left her residence at approximately 3.30 am on 16 April 2016. Ms Rossow recalls that after Mr Scheltens left she went to the toilet and looked out of her son's bedroom window and saw someone 'come down my driveway in a hoodie and some dark pants'.[95] Ms Rossow, in evidence‑in‑chief, stated that the person was the accused. Ms Rossow gave evidence that she recognised the accused by his physical appearance and in particular, his gait. Ms Rossow said that 'I could spot Vince a mile away by the way he walks. He's perfected that walk. It's his style'.[96]
[95] ts 82.
[96] ts 82.
Ms Rossow confirmed that her son's bedroom is on the second floor from where she observed the accused. The opportunity to observe the accused was four to five seconds and the light was fairly good due to a street light.[97] Ms Rossow, during her evidence‑in‑chief, referred to the accused holding something in his hands. Ms Rossow recalled calling the police and telling the 000 operator that she had 'a VRO on a particular person and he was now in my front yard'.[98] That 000 call was made at 4.25 am on 16 April 2016.[99]
[97] ts 84 - 85.
[98] ts 85.
[99] Exhibit 8.
The police arrived and Ms Rossow recalled that the police stayed less than 10 minutes and searched the front of the premises but did not check the backyard.[100] The fire was reported to Mr Cooper of the Department of Fire and Emergency Services at 4.58 am and the fire at Ms Rossow's residence was reported to him at 5.18 am.[101]
[100] ts 86.
[101] ts 204.
During cross‑examination Ms Rossow was asked about her recognition of the accused. Ms Rossow gave this evidence:[102]
[102] ts 95 - 96.
Yes, that's okay. Now, when - when you got up in the morning - and I'm talking - you - you've said you got up, what, around 4-ish---?---Yeah.
- - - am?---Yeah.
On 16 April?---Yes.
And you say that you saw Vince at that stage. Is that right?---Yes, walking down my driveway.
Well, how close - what sort of view did you have of him?---A good view, like a metre, two metres, from looking down to see him, you know. I've got a street lamp straight out - right outside my - my house at number 21 Ellingham Street in North Beach.
Yes?---Nobody looks like Vince or walks like Vince. I know Vince well enough to know---
Well, you - you---?---To know Vince from a mile away.
You'd - you'd know Vince from a mile away?---Yes, because he walks in a particular way.
But - but in this - at this particular time you say that---?---I---
- - - you - you weren't a mile away, you were only one or two metres?---That's right, yeah, and I saw Vince coming down my driveway.
And you had a good view?---Yes.
Was it dark or---?---No. It was morning.
It was light?---It was getting light.
Okay. And when - I think you - you said in your evidence you saw him for several seconds. Is that correct?---Yes, well - yes. Yeah, until he ended up under the eaves of the house.
Yes. So a long enough period to know exactly who he was?---Definitely.
Definitely?---Without a doubt.
Now, it's the case that - that in fact you did not recognise this man---?---That - no, that not the case.
- - - as Vince---The case is I did recognise that man as - as being Vince Mule.
During the cross‑examination, Ms Rossow was referred to two statements that she provided to the police dated 16 April 2016 and 28 April 2016 respectively. Those statements are not in evidence before me unless parts of the statements were adopted by or agreed to by Ms Rossow. To the extent that any prior statement or testimony is inconsistent with evidence given during the trial, it is relevant in my evaluation of Ms Rossow. The fact that a witness has stated something previously that contradicts what he or she has said in this trial will be used by me in deciding whether or not Ms Rossow's evidence can be safely accepted as being truthful and reliable.
During cross‑examination, Ms Rossow was asked about her evidence that the accused was holding something in his hand. In cross‑examination it was put to Ms Rossow that in her first police statement she stated that she could not see the intruder's hands.[103] Ms Rossow appeared to accept that proposition but answered that in her second statement she said that he was holding something.[104] It appears that Ms Rossow accepts that the intruder was not holding anything. However, the questioning concerning this issue appeared to be difficult for Ms Rossow to follow.[105]
[103] ts 101.
[104] ts 101.
[105] ts 101 - 102.
In cross‑examination it was put to Ms Rossow that in her first statement she did not expressly state that the person that she observed was the accused, rather she stated 'I saw a man walking up the driveway towards the house'[106] and 'I did not see where the man had gone'[107] and that 'I was afraid it was Vince downstairs'.[108] A description was given of the person being 'approximately 165 cm tall with a big gut'.[109] Ms Rossow maintained that she would have said to the police that it was Vince coming down the driveway because of what he was wearing, the way he walked and his body type.[110]
[106] ts 99.
[107] ts 102.
[108] ts 101.
[109] ts 101.
[110] ts 100.
In cross‑examination, Ms Rossow was asked about the 000 telephone call. Ms Rossow did not remember with clarity what she stated but that she did recall telling the operator that she had a restraining order against Vincenzo Mule.[111] The 000 call, which was received in evidence, proves that Ms Rossow did not say that the person was the accused.[112] Rather, the recording discloses that Ms Rossow referred to the fact that she had a VRO against her ex‑partner but that she did not know whether it was him or not at the property. Ms Rossow stated 'it could be my ex'.[113]
[111] ts 103.
[112] Exhibit 8.
[113] Exhibit 8.
During cross‑examination Ms Rossow's statement of 28 April 2016 was the subject of examination. Ms Rossow accepted that in her statement of 28 April 2016 she stated that she did recognise the accused immediately at the property.[114] When asked to reconcile that statement with the statement of 16 April 2016 Ms Rossow said:[115]
Well, I suppose my first statement, I just had my house set fire to, so I suppose, you know, I was distressed. I was in that police station crying my eyes out.
[114] ts 105, 107.
[115] ts 105.
Ms Rossow rejected the contention that she had subsequently, after reflection, convinced herself that the person was the accused[116] or that she was guessing. Ms Rossow stated:[117]
It is the case that I was not guessing that it was Vince, I knew it was Vince as to the prior stuff that he had been doing to terrorise me. Nobody walks like him. Nobody looks like him. Nobody has his body type like him. I know Vince intimately to know that was Vince.
[116] ts 107.
[117] ts 104.
I must assess the recognition evidence of Ms Rossow. The accused was very well known to Ms Rossow having been in an intimate relationship commencing in August/September 2015. There was a high degree of familiarity. The circumstances in which Ms Rossow had previously observed the accused were highly frequent over an extended period.
The circumstances that permitted the recognition on the night were that it was a clear view, within metres and for a duration of four to five seconds. The face of the person was not seen given a hoodie was worn. The recognition of the accused relies upon the assessment of the gait and physical appearance of the person. Ms Rossow did not state with clarity to the 000 operator that the person at her property was the accused. Rather, she stated that it could be the accused. The first statement made to the police dated 16 April 2016 did not state that it was the accused.
The explanation given by Ms Rossow was that she just had her house set fire to and she was crying and distressed.[118]
[118] ts 105.
In her second statement of 28 April 2016, Ms Rossow was adamant that she recognised the accused. Her evidence at trial was that it was definitely the accused.
In respect to this identification/recognition, the issue is the reliability of Ms Rossow. There is a special need for me to be cautious regarding the recognition evidence and whether Ms Rossow was correct in her recognition. It is the experience of judges and lawyers that honest mistakes in recognition may occur. Honest mistakes occur not infrequently and may occur in cases where the eyewitness was apparently honest, careful and convincing. A witness may honestly believe that their identification of an accused is correct and be convincing though mistaken.
I have carefully considered this evidence. I consider that Ms Rossow is honest. I do find that Ms Rossow did observe an intruder at her residence at approximately 4.25 am on 16 April 2016. That there was an intruder is not in dispute. Ms Rossow was awake and there is no reliable evidence that she was under the influence of any substance that night. Ms Rossow gave forthright evidence that explained her omission in her first statement and in the 000 telephone call to positively state that it was the accused that she observed. Ms Rossow was distressed at the time of making her first statement which is understandable given the damage to her residence and destruction of her car. The consequence was that Ms Rossow had to move to a shelter. I accept the recognition evidence. Ms Rossow's recognition of the accused at her premises is accepted as being truthful and reliable.
Lies
The State case relies upon statements made by the accused during his two records of interviews that, on the State case, are lies and that these lies support the State case.[119] The State did not particularise any lies in the State opening address. The State referred to a number of lies during the closing address.[120] I consider that two lies, which appear relied upon by the State, should be considered as to whether they support the State case:
1.That from 8.00 pm on 15 April 2016 until 2.00 pm on 16 April 2016 the accused was at his residence and did not leave that residence.
2.That he does not know whether Mr Lamb owns a car or know the person who owns a silver Nissan X‑Trail registration 1CMQ 625.
[119] Edwards v The Queen.
[120] ts 369 - 377.
In respect to the first statement during the first record of interview conducted on 16 April 2016 the accused stated that from 8.00 pm on 15 April 2016 until the police arrived on 16 April 2016 the accused remained at his property. The accused stated that he was at his property watching videos with Mr Lamb from 8.00 pm on 15 April 2016 and that Mr Lamb remained until the morning. The accused stated that he went to bed and that he did not awake until police arrived. The accused reiterated that from 8.00 pm until police arrived he did not leave his property. During the second record of interview conducted on 20 April 2016, the accused stated that he did not leave his property from Friday evening to Saturday morning other than having a smoke outside the door. The night was spent watching movies.
In respect to the second statement the accused, during his record of interview conducted on 16 April 2016, is asked whether 'Jess' (Mr Lamb) has a vehicle to which the accused answered no.[121] During the second interview conducted on 20 April 2016 the accused was asked whether Mr Lamb drives around or rides around to which the accused said that he did not know. The accused stated that he did not know how Jesse got around. The accused was asked again whether he knew whether Mr Lamb owned a car to which the accused expressed surprise saying 'fucking prick. All that taxi money. Hhhmm. Fucking dog'.[122]
[121] ts 13 (record of interview 16/4/16).
[122] ts 30 - 31 (record of interview 20/4/16).
I must be satisfied that what the accused stated was a lie. To be satisfied that the alleged lie was a lie I must be satisfied by evidence that it was a lie, either because the accused has admitted that he lied or by other evidence that what the accused said was a lie. I am satisfied that what the accused stated were lies. Mr Lamb did own a car and that was known to the accused. Mr Lamb gave evidence that he drove the accused in his car. I find that the car was the means of transport for the accused on 15 and 16 April 2016.
I am satisfied that the accused did leave his property for extended periods between 8.00 pm on 15 April 2016 and when the police arrived on 16 April 2016. The most important time period is the night of 15 April 2016 and early hours of 16 April 2016. I accept the evidence of Mr Lamb regarding the travel. There is also the mobile telephone evidence and the evidence of the accused being present at the BP Service Station in Karrinyup at 11.00 pm.[123]
[123] Exhibit 18.
Even if it were a lie not every lie told by an accused person is evidence of guilt. The accused should not be convicted merely because he told a lie. It is a matter of common experience that there may be many reasons for telling a lie.
Most people have told lies at times out of embarrassment or to protect someone's feelings. A lie may also be told out of panic, to bolster up a just cause, to escape an unjust accusation, to protect some other person or for matters unrelated to the offence such as to hide things from family or friends.
To be capable of supporting the State case first of all the lie must have been deliberate. Saying something that is not true by mistake or inadvertence can never be evidence of guilt. Secondly, the alleged lie must relate to a circumstance or event connected with the offence. The telling of the lie must be explicable only on the basis that the truth would implicate the accused with the offence with which he/she has been charged. Thirdly, the motive for the lie must have been a realisation of guilt and a fear of the truth. It is only if I am satisfied of these three things beyond reasonable doubt that I may use a lie told by the accused to support the State case.[124]
[124] Edwards v The Queen.
If I am so satisfied of the three matters then I may take into account the statements that I have determined to be a lie in deciding whether the State has satisfied me beyond a reasonable doubt that the accused was the person who committed the two acts of arson.
During closing addresses I specifically asked counsel for the accused about the two lies that I have particularised. Counsel accepted that each were lies and offered no real alternative explanation for the lies.
I am satisfied that each of the two lies were deliberate lies. Neither was made by mistake or inadvertence. Counsel for the accused did not assert that was the case. Each of the two lies relate to a circumstance or event connected with the offence. The lie regarding the staying at his residence deliberately seeks to mislead the investigators regarding the presence of the accused in the locality of Ms Rossow's residence on the night of 15 April 2016 and the early hours of the morning of 16 April 2016. The telling of the truth would implicate him in the offences. The lie regarding whether Mr Lamb has a car seeks to mislead the investigators as to whether the accused had a means of transport on the night of 15 April 2016 and the early hours of 16 April 2016. The telling of the truth would implicate him in the offences. The motive for both lies was a fear of the truth.
In respect to the other lies to which the State referred during closing address, I direct myself that these lies cannot be relied upon to prove the State case.
Conclusion - count 2
I have considered the entire evidence produced at trial. The defence case is that the accused did not leave his North Perth residence. Further reliance was placed on the evidence of Officer Walters that the search of the accused's residence did not disclose a hoodie, any accelerant or any clothing that smelt of fuel or smoke.[125]
[125] ts 304 - 305.
I find that the accused held a hatred for Ms Rossow at the time of the offending. The accused considered that he was used by Ms Rossow who then ended the relationship. That was clearly manifested in the two records of interview. The relationship was marked by violence resulting in an interim VRO being served upon the accused. I accept the evidence of Ms Rossow that she was subjected to violence. Ms Kader observed the violent relationship. This relationship evidence supports the State's contention that the accused held a motive to do harm to Ms Rossow and to her property. I accept that the accused did have a motive.
I find that the accused did make an express threat to burn Ms Rossow's property. Further, that threat was made at about the time when the accused assaulted Ms Rossow that resulted in her hospitalisation.
I find that the accused did attend at Ms Rossow's property during the afternoon of 15 April 2016. I accept that Ms Kader's recognition evidence was both honest and reliable. At that time the accused moved furniture in the backyard and piled that furniture towards the back door. I find that the accused did so as part of the preparation for the act of arson. That is, to set the necessary fuel for the fire that he planned to ignite at the back door of the residence. As I have observed, the expert arson evidence showed that a seat of the fire was at the back door of the property.
I also find that the accused did remove the light bulb and that the accused did so as part of the preparation for the act of arson. That is, to remove a possible source of light that may assist in disclosing his subsequent attendance at the property.
I find that the accused did use both his own mobile telephone and the mobile telephone belonging to Mr Lamb on the night of 15 April 2016 and in the early hours of 16 April 2016. I reject the defence case that Mr Lamb left the accused's premises and was using his mobile telephone. To the contrary, I find that the accused had access to Mr Lamb's mobile telephone and used that telephone after Mr Lamb retired for the night. I find that the purpose of the telephone calls and the text messages was to assist the accused in knowing the location of Ms Rossow. The communications also show the ongoing interest that the accused holds in respect to Ms Rossow.
I find that the evidence of Mr Lamb was both honest and reliable. I accept that Mr Lamb gave his mobile telephone to the accused and that consequently, the accused having access to that telephone, sent text messages and made telephone calls to Ms Rossow.
I find that the evidence of both Mr Kanakagiri and Ms Watson was reliable. The mobile tower evidence is significant. I find that the accused was not at his residence as he claimed. Rather, the accused was in close proximity to the residence of Ms Rossow. I have outlined this evidence. In particular, the accused made calls from both his mobile telephone and Mr Lamb's mobile telephone which calls utilised the Waterman mobile tower. Three calls were made after 4.00 am on 16 April 2016 which places the accused in close proximity to Ms Rossow's residence at the relevant time.
I find that the accused told two deliberate lies which are relied upon by the State to prove its case. The first lie being that the accused was at his residence, 161 Grosvenor Road North Perth, from approximately 8.00 pm on 15 April 2016, through to the time of his arrest on 16 April 2016. The mobile telephone records prove that the statement of accused was a lie. The second lie was that the accused did not know whether Mr Lamb possessed a motor vehicle. I have considered that lie above at [112] ‑ [123].
I reject the alibi given by the accused. I find that the accused was not at his residence, 161 Grosvenor Road North Perth, from approximately 12.00 pm on 15 April 2016, through to the time of his arrest on 16 April 2016. To the contrary, the accused was present at sometime between 4.30 am to 5.00 am on 16 April 2016 at the residence of Ms Rossow in North Beach. At that time, the accused unlawfully and wilfully damaged the residence of Ms Rossow.
After careful examination of the recognition evidence I find that Ms Rossow did recognise the accused at her residence. I have outlined this evidence above at [96] ‑ [111]. In the event that I had found that the recognition evidence was unreliable I would still find that the State had proven beyond a reasonable doubt that the identity of the perpetrator who committed the act of arson was the accused. That is because I consider that the circumstances, absent the recognition evidence, together form a strong State case that is proven to the requisite level. The circumstances would include the fact that there was an intruder at Ms Rossow's residence at 4.25 am. That was not in dispute. The mobile telephone evidence establishes that the accused was in the vicinity of the residence after 4.00 am on 16 April 2016.
I am satisfied that a fire was wilfully and unlawfully lit and damaged Ms Rossow's residence. I am satisfied beyond a reasonable doubt that the circumstances prove that the only reasonable inference open is that the accused was the person who did that act of arson. In respect to the circumstance of aggravation I am satisfied beyond a reasonable doubt that the State has proven that the damage was caused by fire.
6. Count 1
Prior to considering the issue of identity in count 1, I will consider the other elements. First, the motor vehicle, which was owned by Ms Rossow, was destroyed by fire and Ms Rossow did not give any permission to damage her motor vehicle.
The evidence of Mr Cooper was that at approximately 4.58 am hours on 16 April 2016 Duncraig Fire Station was requested to attend a car fire at Drayton Way, North Beach. Mr Cooper then attended and observed at 5.06 am the car on the verge of Drayton Way and that it was engulfed with fire. [126]
[126] ts 204.
Ms Rossow placed the car at Drayton Way, North Beach on the evening of 15 April 2016 because of her concern arising from the damage to the pot plants, removal of the light bulb and the piling of the furniture near the back door of her property.[127] Ms Rossow did not specify the time in the evening that she parked her car in Drayton Way. Mr Scheltens gave evidence that he went with Ms Rossow, in her car, at approximately 11.00 pm to buy cigarettes at the deli. Mr Scheltens recalls that upon returning, the car was parked at Ms Rossow's property.[128] Ms Rossow gave evidence that she did go to the deli but parked the car in Drayton Way.[129] Mr Scheltens went home but was asked back by Ms Rossow. Whether they did or not is of no moment. That the car was parked at Drayton Way and was destroyed by fire has been proved.
[127] ts 74.
[128] ts 140, 147.
[129] ts 116.
The State led evidence that established that the walking distance from Ms Rossow's property to the verge in Drayton Way was approximately three minutes by foot given that an alleyway may be taken as a short cut.[130] The distance if taken by motor vehicle is 750 metres. Ms Rossow's motor vehicle was therefore, in close proximity to her residence in the early hours of 16 April 2016.
[130] Exhibit 5; ts 74 - 75.
I find that a person lit the fire and did so wilfully and unlawfully. Evidence given by the arson expert, Officer Walters, was that the cause of the fire to the motor vehicle was an incendiary fire with a mobile heat source to combustible items within the passenger compartment.[131] The fire was lit in the passenger area of the car. During closing submissions counsel for the accused accepted that the fire was deliberately lit but not by the accused.
[131] ts 227.
The issue in respect to count 1 was who wilfully and unlawfully destroyed the motor vehicle by fire.
I have already observed that each count must be considered separately. However, what is clear is that the circumstances relied upon in respect to count 2 are relevant and therefore, form the circumstances that the State must rely in proving count 1 on the indictment. I have delineated the circumstances above at [34]. I outlined and assessed those circumstances in detail when determining count 2. That assessment is applicable in my determination of count 1. There are two circumstances, being the moving of the furniture and the removal of the light bulb that may properly be understood as circumstances bearing only in respect to count 2. That is, those acts formed part of the preparation for the arson planned for the residence. However, the attendance at the property to undertake those acts is evidence of the fact that on 15 April 2016 the accused damaged the property of Ms Rossow. That is evidence of his ongoing anger towards Ms Rossow.
A further relevant circumstance is the distance between Ms Rossow's residence and the motor vehicle. The distance between Ms Rossow's residence and the location of her car in Drayton Way was 250 metres by foot with an estimated travel time of three minutes.[132] The distance between the two locations by car is 750 metres with an estimated travel time of two minutes.[133] The recognition of the accused at the residence by Ms Rossow at 4.25 am is therefore relevant. The accused was observed in very close proximity to the motor vehicle a short time prior to the act of arson that destroyed the motor vehicle.
[132] Exhibit 27.
[133] Exhibit 27.
The lies of the accused must form part of the State case that I must consider when determining count 1 on the indictment.
I must be satisfied that the only reasonable inference from the circumstances is that it was the accused who committed the act of arson the subject of count 1. Counsel for the accused, during cross‑examination of Mr Scheltens, asked him whether he lit the fire that destroyed the motor vehicle.[134] I did not understand that the questioning suggested that Mr Scheltens lit the fire at the property. The suggestion was that Mr Scheltens, who lived approximately 800 metres from Ms Rossow, left her residence at 3.45 am and subsequently committed an act of arson on the motor vehicle. That was denied by Mr Scheltens.[135] Mr Scheltens was cross‑examined as to whether he supplies drugs to the community. Mr Scheltens denied that accusation. A number of text messages were extracted from Mr Scheltens' mobile telephone, which counsel stated supported the contention that Mr Scheltens supplies drugs. Mr Scheltens stated that other persons had access to his mobile telephone. Further, Mr Scheltens denied supplying drugs to the accused and that he had any ill feeling or had threatened the accused. I do not consider that there was any evidentiary basis to the accusation that Mr Scheltens did the act of arson on the motor vehicle.
[134] ts 152.
[135] ts 152.
Ms Rossow was cross‑examined concerning her accessing a news story reported by a media group online that a motor vehicle had been destroyed in her area prior to 15 April 2016.[136] Ms Rossow stated that she was interested in a local news story. Officer Walters confirmed that there was an act of arson that involved an offender not related to any person or aspect of this case.[137] I do not consider that this evidence has any bearing on the facts in issue in this trial.
[136] ts 122 - 123; exhibit 9.
[137] ts 296.
I reject the alibi given by the accused. I find that the accused was not at his residence, 161 Grosvenor Road North Perth, from approximately 12.00 am midnight on 15 April 2016, through to the time of his arrest on 16 April 2016. To the contrary, the accused was present at sometime between 4.30 am to 5.00 am on 16 April 2016, at Drayton Way, North Beach. At that time, the accused unlawfully and wilfully destroyed the Mitsubishi Magna motor vehicle, registration number 1BPG 048, being the property of Ms Rossow.
I find the State case proven beyond a reasonable doubt. The circumstances establish that the only reasonable inference open is that the accused was the person who committed the act of arson that destroyed the motor vehicle. I find that the State has proven all elements of count 1 and the circumstance of aggravation beyond a reasonable doubt.
7. Conclusion and verdict
I am satisfied that the State has proven counts 1 and 2 on indictment 261 of 2016 beyond a reasonable doubt and accordingly, I find that the accused is guilty of both counts 1 and 2. Therefore, I enter a judgment of conviction on counts 1 and 2.
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