R v Bitossi
[2014] NZHC 3149
•11 December 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-085-004184 [2014] NZHC 3149
THE QUEEN
v
ANGELO DOMINIC BITOSSI
Hearing: 1-5 December 2014 Counsel:
S C Carter and H K Goodhew for Crown
D A Ewen for DefendantJudgment:
11 December 2014
JUDGMENT OF SIMON FRANCE J (Reasons for verdict)
[1] These are the reasons for a verdict of guilty I gave in relation to a charge of arson brought against Mr Bitossi. The charge related to a large fire which destroyed part of a storage facility in Kilbirnie, Wellington. The loss caused was in the millions of dollars, and hundreds of people lost their possessions.
[2] The trial issue was identity. There was no doubt that whoever lit the fire did so deliberately and in circumstances that met the requirements of the charge of arson. The onus was of course on the prosecution to prove its case beyond reasonable doubt. Mr Bitossi did not testify or call evidence on his behalf. That did not alter anything and no adverse inference could be taken from it. Mr Bitossi was interviewed by the police shortly before his arrest, and the contents of that interview
formed part of the evidence.
R v BITOSSI [2014] NZHC 3149 [11 December 2014]
[3] The storage facility that was the subject of the arson is protected by a perimeter fence. There is only one point of entry and one separate point of exit. On arrival at the facility, to go through the gate, the storage unit lessee must enter a unique pin code. This both opens the gate, and deactivates an alarm on the door of the lessee’s unit. When the lessee leaves, he or she must enter the same pin to open the exit gate and that will reset the alarm on the storage unit door. The use of the pin creates an electronic record.
[4] The fire was first noticed around 12.40 am on 4 April 2014. An explosion was heard and flames seen from the upper level of Block B (there being five blocks in all). Subsequent investigation has established that the fire started in unit 1001. There is no possibility it was accidental. The circumstances show that the arsonist had access to the inside of unit 1001 in order to set the fire. The uncontested expert evidence establishes the door to the unit was open and petrol was used for ignition.
[5] The electronic record created by the use of pin codes shows that the code for unit 1001 was entered at 12.30 am on the morning of 4 April 2014.1 There is a camera at the entrance gate and a person can be seen walking to the gate. This person enters the correct code for unit 1001 and walks in, carrying a red petrol container.2 The cameras then show the person walking to Block B. He goes past the lift and appears headed for the stairs that take someone to the top floor on which unit 1001 is located.
[6] Three minutes later the person reappears. He has changed his clothing, and is not carrying anything.3 Shortly after the person disappears from sight, there is an attempt to enter the code for unit 1001 at the exit gate. An incorrect number is entered twice. It is apparent it is meant to be the unit 1001 code as the first four numbers are correct, but the last one is out by one. There is then a third attempt with
the entry of three numbers which are totally wrong, and the person gives up. It is not
1 There was some lack of clarity in the records but nothing which caused me to have any doubts about the basic issues – namely, what units were being accessed at the time, and the link of the offender’s actions to unit 1001.
2 The colour is apparent in photo 14.
3 The face of the person is not seen in any way that allows for identification. There is no doubt this is the same person on each occasion. The timings are consistent with this, and the electronic records establish what other units were active at the time. These people gave evidence, which I accept, as to their movements.
known how he then left the premises but the assumption is that he scaled the gate. Unfortunately the exit gate camera for some reason did not record these events.
[7] It is known from other evidence that unit 1001 had two padlocks on it. So it can be said that whoever lit the fire knew the correct pin number for the unit, and either had keys to the unit or cut the two padlocks. Given the short time the whole exercise took, and the apparent lack of any bolt cutters being carried by the person, it is probable that the former is correct but the latter cannot be ruled out.
[8] The owner of unit 1001 is a Mr Darren McKinley. He gave an interview to the police shortly after the fire and indicated he had disclosed his pin to “maybe 10 people”. However, he would not say who they were. He also confirmed there were two padlocks. Later, when he was brought to court to testify, he declined to become a witness and refused to testify. So the most obvious source of information about the relatively small pool of people who could have committed this offence was unavailable.
[9] It is, however, known that Mr Bitossi knew the pin, and had the keys to the unit. He admitted as much to the police when interviewed:
… I’ve got the keys to that storage unit mate. I’ve got the keys to his
[Mr McKinley’s] BMW … to his house … to his bank accounts …
Q: So you’ve said to me that you’ve got the keys to the lock up. You
know all of his pin codes and everything?
A: yeah.
Q: Tell me about that.
A: I was a regular mate [inaudible] storage and … regular, I’d go there
by myself every other day.
[10] The admission is significant. When Mr McKinley was interviewed he was asked about the padlocks on his unit and he gave the police two keys. When Mr Bitossi’s house was searched, a copy of one of the two keys was found but not the other. I do not see this as mattering because Mr Bitossi’s admission is unequivocal.
[11] Mr Bitossi’s counsel cautioned about accepting the reference to “keys” at face value. It was submitted it could mean just one key and be loose language. However, the context of the statement belies this. It is clear from the interview that Mr Bitossi and Mr McKinley had a long term working relationship. Mr Bitossi did a lot of running around for Mr McKinley, but around the time of the fire he had come to the view that Mr McKinley had just been using him. He was plainly very disenchanted with Mr McKinley who apparently had stopped providing Mr Bitossi with money. This was causing Mr Bitossi both difficulty and annoyance.
[12] It was in the context of talking about his relationship with Mr McKinley that Mr Bitossi said he knew everything about him. It was not just a claim to being able to access the storage unit, but extended to access to Mr McKinley’s home, his car and his bank accounts. This was not bragging or exaggeration. I have no doubt at all that Mr Bitossi had the code to unit 1001, that he had the keys to the padlocks securing unit 1001, and that he knew his way straight to it. In his own words, he was there at the storage unit “by himself every other day”.
[13] The manner in which this arson was committed, starting from the direct confident approach by the offender to the keypad and to entering the correct code, through to the direct route the offender took to Block B and the short time it then took the person to open the specific unit, set fire to it, and finally know to go to the exit gate to leave, all speak strongly of a person very familiar with the facility and its layout, with the whereabouts of unit 1001 and with how to get into it. There may be others with this knowledge but Mr Bitossi is certainly one who has it. Further, at the time of the fire he was plainly unhappy with Mr McKinley. There is no evidence of any particular triggering event on 3 April 2014, but the general relationship between them at the time was plainly not good.
[14] In terms of capacity to commit this offence, it was therefore established that Mr Bitossi had the necessary knowledge about the storage unit, and had the ability to get into it. It can also then be observed that he had access to the type of petrol container in which the petrol was carried. There was quite a bit of evidence and dispute about this, but the purpose of this judgment is not to provide a record but to set out my reasoning. So I cover it only briefly.
[15] The evidence shows that a friend of Mr Bitossi’s (James Brodie) bought a red petrol tote on 21 March 2014. He owned a small dinghy with an outboard, and needed the petrol container for when he and Mr Bitossi went out fishing. The motor was not working and it is clear he and Mr Bitossi made efforts to get it going. There was a dispute as to whether this happened at Mr Bitossi’s house or at another friend’s house nearby. What is known is that petrol was bought for it on 30 March 2014, so four days before the fire.
[16] The dispute was as to whether the now filled petrol container was left at the friend’s house (Mr Ryder) or at Mr Bitossi’s. The evidence was inconsistent at times but I am satisfied it ended up at Mr Bitossi’s. Mr Ryder, who was in my view an honest witness, was almost certain about the point, and his reason for this was convincing to me. He knew it was not at his house.
[17] The proposition that the red petrol container was at Mr Bitossi’s house gets some support from other evidence. When it was purchased, Mr Brodie also bought a hose connector and a fuel line. The packaging for these items was found in Mr Bitossi’s rubbish which was being carried around in the boot of his car. Second, Mr Brodie testified that it was stored at Mr Bitossi’s, and third, the motor and dinghy certainly ended up there. That being so, why the fuel tank and connectors would have been left elsewhere is not obvious.
[18] To summarise this point, it is clear that the petrol used to ignite the fire was taken to the facility in a red petrol container. This is apparent from the footage of the person arriving, and from later forensic analysis of the debris in unit 1001. It must be immediately acknowledged they are common enough containers, but it is of significance that Mr Bitossi, one of the few people with the necessary knowledge to be able to commit this offence, had one at his premises immediately preceding the fire. It is also the case that no petrol container was subsequently found at his house. I accept Mr Ewen’s point that the police search of the outside of Mr Bitossi’s house was not thorough, but nor despite its obvious significance, has the petrol container been produced by anyone if it were still there. Mr Bitossi’s position is that it was not at his place at all, a proposition I have rejected.
[19] The circumstances outlined to date obviously raise a very strong suspicion that Mr Bitossi is the offender. There is a very small pool of people who could have done this offence; he is one of those, and admits to being at the facility often. He has the type of familiarity with the premises which the offender displayed on the night. He has a general grievance with Mr McKinley, and what emerges from his lengthy interview is that it was a current, very raw grievance. It was a grievance very much in his thoughts at the time of the interview and no doubt the preceding weeks. Finally, he had in his possession, and now does not, a filled red fuel container which is the same as the one used by the offender.
[20] I turn next to the CCTV footage and evidence obtained at the scene.
[21] On the way into the facility, the offender is clearly wearing many layers of clothing. The clothing is largely non-descript but a cap being worn is distinctive. It is white with a yellow brim and is a “Vodka Cruiser” cap. Mr Bitossi accepts he had one of these, but it must be noted so would many others. They are given away as a promotion at various liquor stores. Mr Bitossi’s friend, James Brodie, also had one. In his interview Mr Bitossi said he thought he had given his to Mr Brodie, although it was unclear why he would have done that since Mr Brodie had one. Mr Bitossi’s ownership of the type of cap being worn by the offender as he arrives is relevant. It is, however, a small factor and one that should not be over stated given the prevalence of the cap.
[22] I turn next to one of the more important items of evidence. Shortly after the fire was brought under control, the police were pointed to a black cap with a purple brim which was resting against a pillar between two lockups on the side of the driveway that runs between Blocks A and B. The significance is that it is known that the offender came back out onto the driveway and the cap was on the route the offender most likely took to get to the exit gate.
[23] The evidence links the cap to the events of the night. The facility manager did not see it when doing his rounds at 6 pm on the evening of 3 April 2014. It was late twilight so it is not certain he would have seen it, but part of the purpose of the round is to look for rubbish and other things lying around. By contrast a
Mr David Mangos saw a dark cap in the middle of the road between Blocks A and B
around the time of the fire.
[24] Mr Mangos is also a lessee of a unit. He and a friend were in Block C around the time of the fire. He heard a bang and went to investigate. Mr Mangos saw flames coming from Block B. He walked past it to where people were at the entry gate, and then walked back to see his friend. In a statement made on the night Mr Mangos said he walked back between Blocks A and B. While doing so he saw the cap in the middle of the road, but left it. Two days later in a further statement, and then initially at trial, he said his route was between Blocks B and C. However, when recalled as a witness, and shown his initial statement, Mr Mangos confirmed he had in fact seen it between Blocks A and B. He explained why he had become confused, and confirmed he was now sure in his mind where he had seen it.
[25] I accept the final version as accurate. Mr Mangos was sure in his explanation, and his current belief matches what he said on the night. That means, therefore, that a cap that was probably not there at 6 pm was there at about the time of the fire. When one then looks at the CCTV footage of the offender coming back after setting the fire, the person appears to be wearing that exact type of hat.
[26] Some caution is needed here. The photo is not totally clear, especially as to the colour of the cap. It is plainly a dark cap and there is apparent a contrast between the brim and the rest. Knowing that a black and purple cap has been found, it is necessary to guard against reading more into the photo than is legitimately there. That said, on reviewing the photo, I am satisfied that the cap the offender is wearing indeed has a purple brim. The earlier circumstances suggest it is the same cap that is then found in the roadway between Blocks A and B. For some reason the offender has dropped it while leaving. I agree with Mr Ewen it is surprising the offender did this, but the facts are that the cap was definitely there.
[27] As for whose cap, it is Mr Bitossi’s. There is realistically no doubt about
this:
(a) the only DNA found on it is his. Further, the DNA comes from inside the cap, and particularly from the band where the cap sits on the wearer’s forehead;
(b)Mr Bitossi regularly wears such a cap and was wearing it only a few days before the date of the fire;
(c) there is no innocent explanation for its presence there. As noted, Mr Bitossi by his own admission visited the premises regularly, but when asked about the cap he lied and said he did not have such a cap. Accordingly, he does not provide any alternative explanation for why his cap, which the offender appears to be wearing after setting the fire, is found lying on the exit route taken by the offender.
This is obviously crucial evidence so it is necessary to discuss the trial issues that arose in relation to it.
[28] Taking first the DNA point, it is notable that no other trace DNA was found, only Mr Bitossi’s. When asked about the significance of that, the expert said it suggested either Mr Bitossi was the habitual wearer, or that the last occasion on which he wore it had overwhelmed all previous DNA deposits. This could happen, for example, as a result of heavy sweating. Either option reinforces the link of Mr Bitossi to the cap.
[29] The expert was questioned as to the possibility of other trace DNA having been missed. One possibility was that something such as a hair might have come off it and been left in the bag in which the cap was transported. The context of this is that when the cap was bagged, it seems probable it was liberally covered in ash, but that quite a bit of the ash was shaken loose into the bag during movement. It is clear that the cap, when photographed by ESR, had less ash on it than when photographed at the scene, although it is not easy to be sure how much less. The bag contents were
not checked. The possible relevance of this will emerge later. It does not for the moment undermine the present reality, which is that the only DNA located on the cap is that of Mr Bitossi.
[30] Next, and again related to the idea of someone else wearing the cap, the prosecution witness James Brodie was asked whether he had worn it. Mr Brodie was a close friend of Mr Bitossi and seemingly clothes sharing was not uncommon. Mr Brodie accepted he had been given the cap for a period but said he had given it back when Mr Bitossi had asked for it.
[31] No timeframe was put on when this sharing occurred. However, it is clear that Mr Bitossi was in possession of the cap four days before the fire. There are photos of him wearing it both at a store on 29 March 2014, and a petrol station on
30 March 2014. If Mr Brodie had worn it for a period, it was plainly at a time earlier than the current events. It was never suggested that the cap swapping was a recent event. Accordingly, I have no doubt the cap was still in Mr Bitossi’s possession around the time of the fire.
Preliminary assessment of prosecution case
[32] The person who committed this offence needed to know the code to Mr McKinley’s lock up. The person probably also held the keys to the two padlocks securing the unit, although bolt cutters cannot totally be dismissed as an option. The offender was familiar with the facility and its security system, and with the whereabouts of the particular unit. These factors greatly reduce the pool of possible offenders, and Mr Bitossi meets each of them.
[33] It is also the case that a red fuel tank was used to carry the petrol to the scene of the crime. Mr Bitossi had access at his house to that very type of tank, and that tank had been filled with fuel four days earlier. It is now not at his house, and its whereabouts is unknown. Melted red plastic found in the fire debris matches the material used to manufacture these tanks.
[34] It is overstating it to say Mr Bitossi had a clear motive, but he was plainly very disgruntled at the time with Mr McKinley. He considered Mr McKinley had been using him, and was annoyed he had stopped paying him money. He also considered Mr McKinley had been disrespecting him in his house, and may have mistreated Mr Bitossi’s dog. So there was plainly a significant level of angst.
[35] Then against the background of all this circumstantial material which points the finger of suspicion heavily at Mr Bitossi, there is the evidence of the cap. For the reasons given, I am satisfied it is Mr Bitossi’s cap. Further, the timing suggests it is unlikely to have been there before the late evening on the night of the fire, and the photograph of the offender leaving Block B appears to show the offender is wearing the same cap. The evidence concerning the cap is significant evidence and, when added to the matters already discussed, leaves no room for doubt.
[36] Subject to one issue yet to be discussed, this collection of evidence is sufficient to meet the prosecution onus. It should be noted, however, that it is not the only available evidence. Other small matters reinforce the conclusion just expressed.4 One example is the Vodka Cruiser cap which the offender was wearing on arrival at the facility. Mr Bitossi owns such a cap. It was one of the specific items targeted by the subsequent search of Mr Bitossi’s property, but none was
located.
[37] Then there is his interview with the police and comments made afterwards. Reference has already been made to Mr Bitossi’s discussion of his disintegrating relationship with Mr McKinley, and his acknowledgement that he knew the pin code to the unit, and had keys to the padlocks. In the interview Mr Bitossi tells lies which can be put down to him realising the finger of suspicion is pointing at him, and trying to divert it. The lies are therefore not necessarily indicative of guilt, but they do not encourage one generally to believe what he says. This impression is somewhat strengthened by events after the interview when Mr Bitossi is overhead saying to his partner “they have got me on this” and “I’ve got to give it up to them.
Tell them”. Earlier he had said to the police, after the conclusion of the interview,
4 I do not address all matters. However, I note for the record I did not consider the prosecution submissions on posture and the make/model of the car seen in the vicinity of the facility advanced its case. Accordingly, they are deliberately not addressed.
that if he was allowed to see his partner and once he had spoken to his lawyer, he would then “give them the truth”. For these reasons, but primarily because the evidence says otherwise, I do not accept Mr Bitossi’s denials of responsibility.
The possibility someone else did it?
[38] The remaining issue to consider emerged as the primary defence. It is whether there is a reasonable possibility that a prosecution witness, Mr James Brodie, was actually the person who lit the fire. Mr Brodie was a close friend of Mr Bitossi at the time, and a regular visitor to his house. They would spend time together, and the fuel was purchased, for example, so they could go out together fishing on Mr Brodie’s boat.
[39] Several matters are advanced as implicating Mr Brodie, or at least as applying equally to him as to Mr Bitossi. First, concerning the fuel tank, it was actually Mr Brodie who bought it. Further, he accepts he may have been at Mr Bitossi’s on the evening of 3 April 2014, so if the fuel container was there, Mr Brodie could have taken it. Likewise, the black and purple cap. He had previously had possession of it, and if he had given it back, was nevertheless in a position to uplift it from Mr Bitossi’s on the evening of the fire and take it to the storage facility. Mr Brodie also accepts he has a Vodka Cruiser cap.
[40] Next, it is suggested that the shoes the offender is seen wearing on arrival at the facility are shoes Mr Brodie owns. This is a reference to a pair of black Nike shoes with a white swoosh. Mr Ewen submits that is what the offender appears to be wearing and emphasises there is no evidence of Mr Bitossi ever having such shoes. Finally, it is submitted there is a long history of animosity between Mr Brodie’s family, and Mr McKinley, and evidence shows Mr Brodie would “bad mouth” Mr McKinley behind his back.
[41] In my view none of these matters individually or collectively created a reasonable possibility Mr Brodie committed this arson. There are difficulties with some of the propositions advanced, and there are significant gaps in the theory in terms of how Mr Brodie could have committed the arson.
[42] Concerning the fuel tank and the black and purple cap, I accept the possibility Mr Brodie could have taken them from Mr Bitossi’s house on the night.5 That requires acceptance, however, that not only did Mr Brodie decide to burn Mr McKinley’s unit, but he also decided he would lay a false trail and implicate his close friend. There is no reason at all to think he would do that.
[43] Next, I do not accept that the shoes the offender is wearing are the same as those owned by Mr Brodie. The most that can be said of the offender is that the shoes he is wearing are black with heavy white blocking on both sides of the shoe in the middle. The blocking is at least as consistent with vertical lines as it is with the Nike swoosh. The reality is the picture is far too indistinct to go beyond the generalised description I have given.
[44] Next, I do not accept any motive emerged. The propositions were put to Mr Brodie that he and his family had a long standing grudge against Mr McKinley dating back to an event 10 years ago. It was also suggested Mr McKinley similarly held a strong grudge over those events. Mr Brodie considered the matter was being overstated, and denied there was any recent animosity.
[45] There was a second prosecution witness, Mr Ryder, who knew all the people involved. He was questioned after Mr Brodie gave evidence, and asked about the relationship between Mr Brodie and Mr McKinley. My assessment of the outcome of this evidence is that a great deal of what Mr Brodie had said stood up. It may be that Mr Brodie downplayed his general dislike of Mr McKinley, but as Mr Ryder said, that sentiment is one shared by many. It transpires Mr Brodie was accurate in his evidence about when he last saw Mr McKinley, and generally I accept his evidence about this. Nothing emerged to suggest Mr Brodie had any kind of present relationship or dealings with Mr McKinley, and there is no reason he would have
sought to burn his unit.
5 It is to be recalled that no trace of Mr Brodie was found on the black and purple cap. It is here that Mr Ewen relies on the failure to check the contents of the bag in which the cap was transported. It is a proposition that cannot be discounted simply because the bag was not checked, but in light of the other evidence it does not advance the “case” against Mr Brodie.
[46] Nor did Mr Brodie have the capacity. It is doubtful he even knew of the storage unit’s existence. Mr Ryder thought he may have mentioned it once, but there was nothing about the circumstances of that which would have caused Mr Brodie to remember. There is certainly no evidence at all that he knew of the pin code or had the keys. Nor does he appear to have the familiarity with the facility and the whereabouts of the unit in question that the offender plainly had.
[47] For all these reasons I reject that a reasonable possibility emerged that Mr Brodie was the offender. I accept the denials of responsibility which Mr Brodie made when testifying, and consider the evidence supports the truth of those denials.6
The evidence and submissions directed to Mr Brodie’s involvement do not cause me
to have a reasonable doubt about Mr Bitossi’s guilt.
Conclusion
[48] I do not accept there was a reasonable possibility that Mr Brodie committed the offence, nor do I accept Mr Bitossi’s denials. Looking at the evidence as a whole, I consider the case against Mr Bitossi was overwhelming and accordingly convict him of the offence charged, namely arson of the Kiwi Storage facility on
4 April 2014 contrary to s 267(1)(b) of the Crimes Act 1961.
Solicitors:
Luke Cunningham & Clere, Crown Solicitors, Wellington
D A Ewen, Barrister, Wellington
Simon France J
6 Mr Ewen requested that pursuant to s 122(c) of the Evidence Act 2006, I caution myself that Mr Brodie might have a motive to give false evidence. There is a degree of circularity here, as it depends on it being a reasonable possibility that Mr Brodie committed the offence. However, I have of course assessed both his evidence, and other evidence, with an awareness that Mr Brodie’s alleged responsibility was the primary defence.
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