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District Court 16 December 2020

R v Zeng

[2020] NSWDC 761

Fraud & dishonesty
JUDGE ALONE TRIAL

Citation: R v Zeng [2020] NSWDC 761
Court: District Court of New South Wales
Date: 16 December 2020
Judge(s): Mahony SC DCJ

Background

The accused was the operator of Rainbow Sydney Pty Limited, a business that repackaged milk products at a warehouse in Auburn. The business was in significant financial difficulty: rent had not been paid since December 2018, wages were outstanding, investor funds had not been repaid, and the company bank account held barely a few dollars at various points in early April 2019.

On 22 April 2019, fire was detected at the Auburn warehouse approximately four minutes after the accused left the premises. Fire officers observed six separate seats of fire inside the building. The accused had purchased fire insurance on 16 April 2019 and added business interruption cover the following day, less than a week before the blaze.

The accused was charged with one count of dishonestly damaging property by fire with a view to making a financial gain, contrary to s 197(1)(b) of the Crimes Act 1900. He pleaded not guilty and elected to be tried by judge alone under s 132(2) of the Criminal Procedure Act 1986.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that the accused deliberately lit the fire at the warehouse on 22 April 2019.
  • Whether the circumstantial evidence excluded all reasonable hypotheses consistent with innocence, including accidental ignition by the forklift charger, radiant heat spread, or skylight drop-down.
  • Whether the accused's lies to police and conduct after the fire could support a finding of consciousness of guilt or affect his credibility as a witness.

Decision

Issue 1: Whether the fire was deliberately lit

The court accepted the expert evidence of fire investigators Mr Schweickle and Mr Sutarov that the most probable cause of the fire involved multiple points of ignition (at [351]-[352]). Forensic examiner Mr McKay gave uncontested evidence that flames visible through the roof within four to five minutes of the accused leaving the premises were inconsistent with an electrical fire originating from the forklift or battery charger, describing such a cause as "highly improbable, if not impossible" (at [358], [415]). The court found that the presence of unburnt paint inside the charger lid, the fuse and thermal protection systems built into the charger, and the minimal combustible material within it all made the charger hypothesis untenable (at [414]).

Issue 2: Exclusion of innocent hypotheses

The court rejected the defence submission that radiant heat or drop-down from skylights could explain the six seats of fire (at [412]). Timber pallets near the roller door were extensively burnt but were not located beneath any skylight, undermining that theory (at [412]). The defence suggestion that a smouldering fire had begun before the accused left the premises was characterised as entirely speculative and unsupported by any evidence, including the accused's own account (at [415]). The court found no reasonable hypothesis consistent with innocence open on the totality of the evidence (at [417]).

Issue 3: Circumstantial evidence and the accused's credit

The court found the accused could not be accepted as a witness of truth and placed his evidence to one side (at [406]). The court identified numerous lies told to police and in evidence, including about paying rent, gambling losses, the purpose of the firelighters, and the forklift making noise during charging (at [405]). The court also drew the clear inference that the accused had remotely wiped his seized phone on 23 April 2019 to destroy its contents (at [255]). Other significant circumstances included: the CCTV hard drive being turned off four days before the fire while the accused was on the premises (at [7]); fire insurance taken out six days before the fire (at [404]); firelighters purchased on the afternoon of the fire; and the accused cashing $59,700 at the casino on 17 April 2019, the same day he withdrew $50,000 from his company's account (at [310], [402]).

Verdict

The court was satisfied beyond reasonable doubt that the accused used the firelighters he purchased on 22 April 2019 to light six separate fires within the warehouse, with no fuel load between the seats of fire, and that he did so dishonestly with a view to making a financial gain through insurance claims (at [412], [418]).

Orders Made

  • The accused was found guilty of Count 1 on the Indictment: on 22 April 2019 at Auburn, New South Wales, he dishonestly, with a view to making a gain for himself, damaged property (the warehouse at 6/164 Adderley Street West, Auburn, and its contents) by means of fire, contrary to s 197(1)(b) of the Crimes Act 1900.

Key Takeaways

  • In a judge alone arson trial, a strong circumstantial case built from financial motive, CCTV evidence, expert fire investigation, and post-fire conduct can support a guilty verdict beyond reasonable doubt even where no eyewitness observed the fire being lit (at [401], [417]).

  • The District Court confirmed that the remote wiping of a phone seized by police, traced through Apple Corporation records to a command issued by the device's owner, is capable of supporting an adverse inference against the accused (at [255]).

  • Where an accused is found to have lied extensively to police and in evidence on matters directly related to the charge, a judge sitting alone may put that evidence to one side entirely and assess whether the Crown case independently establishes guilt beyond reasonable doubt (at [406]).

  • Expert evidence that an electrical fire caused by a forklift charger would be slow to propagate, combined with a four-minute timeline from the accused's departure to visible flames through the roof, was sufficient to exclude accidental electrical ignition as a reasonable hypothesis (at [358], [415]).

  • Under s 197(1)(b) of the Crimes Act 1900, the Crown must prove the accused acted dishonestly and with a view to making a gain; the taking out of fire and business interruption insurance in the days immediately preceding the fire was treated as direct evidence of that mental element (at [404], [412]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986

Cases
- Not stated