Citation: Police v Kevin Francis Barlow (No 1) [2011] NSWLC 19
Court: Local Court of New South Wales
Date: 13 May 2011
Judge: Lerve LCM
Background
Two fires occurred at a rural dwelling on the property known as "Carinya" near Culcairn in regional New South Wales. The first fire, on 12 May 2010, was confined to the roof cavity and caused approximately $5,000 in damage. The second fire, on 14 June 2010, completely destroyed the dwelling. The accused was the former husband of the property's owner, and between the two fires the Commonwealth Bank, as mortgagee, took possession of the property.
The accused faced four charges arising from the two fires. The primary charges under s 197(1)(b) of the Crimes Act 1900 alleged deliberate damage and destruction of property by fire, dishonestly and with a view to making a gain. The alternative charges under s 195(1)(b) alleged intentional or reckless damage and destruction by fire. The prosecution's case was entirely circumstantial.
The accused did not give evidence at the hearing but had participated in a recorded police interview in which he denied responsibility for both fires. The prosecution relied on, among other things, coincidence evidence linking the two fires, expert evidence of deliberate lighting, and a number of statements the prosecution characterised as lies told by the accused to investigators.
Legal Issues
- Whether the prosecution proved beyond reasonable doubt that the accused deliberately lit the fires on 12 May 2010 and 14 June 2010
- Whether coincidence evidence from two fires at the same property could be used to establish that the same person lit both fires, and what the correct legal test for such evidence is
- Whether the prosecution proved that the accused acted dishonestly and with a view to making a gain for himself, as required by s 197(1)(b)
- Whether identified lies told by the accused to investigators could be used as evidence of guilt
- What inferences could properly be drawn from the circumstantial evidence taken as a whole
Decision
The Magistrate found, beyond reasonable doubt, that the accused deliberately lit both fires. This finding rested on a combination of expert fire investigation evidence pointing to deliberate lighting in each instance, the striking similarities between the two fires at the same property within weeks of each other, and a series of lies the accused had told to investigators. The court rejected the defence submissions that an alternative hypothesis, such as vandals or other persons having access to the isolated property, could raise a reasonable doubt.
On the coincidence evidence, the Magistrate noted that the correct legal test does not require "striking similarity" between the two events. Rather, the question is whether the circumstances surrounding both fires are sufficiently similar that the tribunal of fact can be satisfied the person who lit one fire must have lit the other. The Magistrate found that test was met on the evidence.
Despite finding deliberate lighting proved, the Magistrate was not satisfied beyond reasonable doubt that the accused had acted dishonestly with a view to making a gain for himself. Although the accused had made inquiries about the insurance on the property only weeks before the first fire, the Magistrate found that inference of financial gain was not the only available inference. Revenge was equally available as a motive, given that the accused had made threats to his former wife who owned the property. Suspicion of financial motive, even strong suspicion, could not substitute for proof beyond reasonable doubt.
Accordingly, the Magistrate was not satisfied that the additional elements of the s 197(1)(b) charges (sequences 1 and 3) were established. The alternative charges under s 195(1)(b) (sequences 2 and 4), which required only intentional or reckless destruction by fire without any dishonesty or gain element, were found proved beyond reasonable doubt.
Orders Made
• Sequences 2 and 4 proved (deliberately lighting fires on 12 May 2010 and 14 June 2010)
• Matter adjourned for sentencing hearing
Key Takeaways
- The Local Court confirmed that coincidence evidence arising from two fires at the same premises does not require proof of "striking similarity" between them. The applicable test is whether the fires and their surrounding circumstances are so similar that the tribunal of fact can be satisfied the person who lit one must have lit the other.
- A purely circumstantial prosecution case can satisfy the criminal standard of proof where the totality of the evidence, including expert opinion on deliberate lighting, identified lies, and coincidence evidence, excludes reasonable alternative hypotheses.
- Where multiple inferences are equally available from the circumstantial evidence, the prosecution cannot satisfy the "dishonest gain" element under s 197(1)(b) of the Crimes Act 1900 simply by establishing that one of those inferences points to financial motive. Suspicion, even strong suspicion, is not a substitute for proof beyond reasonable doubt.
- Lies told by an accused to investigators can form part of the prosecution's circumstantial case, but their weight depends on context. The court rejected the suggestion that numerous lies made across significant aspects of the investigation were merely consistent with panic.
- Under the alternative charge structure in s 195(1)(b), intentional or reckless destruction by fire can be established without proof of dishonesty or a view to gain, making it an important fallback charge where motive evidence is equivocal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 4B, 195(1)(b), 197(1)(b)
- Evidence Act 1995 (NSW)
Cases
- DAO v R [2011] NSWCCA 63
- HML v The Queen [2008] HCA 16
- R v AN (2000) 117 A Crim R 176
- R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319
- R v Fletcher (2005) 156 A Crim R 308
- R v Tektonopoulos [1999] 2 VR 412
- R v Zhang (2005) 158 A Crim R 504