Citation: Bolger v R [2021] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 16 July 2021
Judges: Harrison J (primary reasons); Adamson J and Bellew J (agreeing)
Background
The appellant was convicted by a jury in the District Court of two offences arising from a house fire on 16 March 2013 at a residential property in North Tamworth. The first count was dishonestly damaging property by fire with a view to obtaining insurance money, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). The second count was dishonestly attempting to obtain a financial advantage by deception, namely by falsely reporting the fire as accidental and making an insurance claim, contrary to s 192E(1) of the Crimes Act 1900 (NSW).
The Crown's case rested on several strands of evidence. CCTV footage installed by the appellant at his own property appeared to show him moving in a crouched position between rooms shortly before the fire started, with a reflected image captured in a glass front door suggesting he was attempting to stay below the camera's direct line of sight. The appellant had told attending officers the fire was caused by aromatic candles or oil burners, but had separately told tradespeople that he wanted the house written off, that it was insured for $850,000, and that he owed a substantial sum to a family member.
The appellant was sentenced to three years imprisonment with an 18-month non-parole period. His full sentence expired before the appeal was heard. He sought leave to appeal out of time against his convictions on the single ground that the jury's verdict was unreasonable or could not be supported by the evidence.
Legal Issues
- Whether the jury's verdicts on counts 1 and 2 were unreasonable or could not be supported having regard to the whole of the evidence, within the meaning of that ground under the Crimes Act 1900 (NSW) and applicable High Court authority.
- Whether the available innocent explanations for the appellant's conduct were sufficiently compelling that the jury must have entertained a reasonable doubt about his guilt.
- Whether inconsistencies or equivocal features in the prosecution evidence were irreconcilable with a finding of guilt.
Decision
Harrison J conducted a detailed review of the trial evidence. His Honour noted that while several innocent explanations were theoretically available for the appellant's behaviour, the question was not whether an innocent interpretation was possible, but whether it was reasonably open to the jury to reject those explanations and be satisfied beyond reasonable doubt of the appellant's guilt. The applicable test, drawn from High Court authority, asks whether the jury must have had a reasonable doubt, not merely whether they might have had one.
On the CCTV evidence, Harrison J found that the jury was entitled to conclude the appellant's crouching movements before the fire were suspicious rather than innocuous. The appellant's apparent sensitivity about the footage, combined with the circumstances in which the hard drive was subsequently found in a shed and his shifting explanations about it, were described as compellingly consistent with guilt.
His Honour also found that the appellant's statements to tradespeople about wanting the house written off and the level of insurance cover, made to strangers in circumstances that were described as bizarre, formed part of a body of evidence the jury was entitled to weigh. The suggestion that the appellant could have accidentally dislodged a candle or oil burner without realising it had started a fire was found to be so inconsistent with common experience as to be untrue.
Harrison J concluded there were no true inconsistencies in the evidence irreconcilable with a finding of guilt. At best for the appellant, the evidence was capable of more than one interpretation, but the appellant had not demonstrated that the jury's preferred interpretations were not reasonably open to them. Adamson J and Bellew J each conducted independent reviews of the evidence and agreed that it was open to the jury to be satisfied beyond reasonable doubt on both counts.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellant to show the jury must have entertained a reasonable doubt, not merely that an innocent interpretation of the evidence was available.
- Equivocal evidence does not automatically support a successful unreasonable verdict appeal; where the evidence is capable of more than one interpretation, it remains open to the jury to accept the Crown's interpretation if that was reasonably available on the material.
- No irreconcilable inconsistency existed in this case. The Court found that the competing explanations advanced by the appellant went to the weight and credibility of the evidence, matters squarely within the jury's province.
- Circumstantial evidence, including statements made voluntarily to strangers and conduct both before and after an offence, can form part of a coherent body of evidence sufficient to support a finding of guilt beyond reasonable doubt.
- Each member of the Court of Criminal Appeal undertook an independent review of the trial evidence before reaching their conclusions, consistent with the appellate court's obligation when the unreasonable verdict ground is raised.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 197(1)(b) (dishonestly damaging property by fire)
- Crimes Act 1900 (NSW), s 192E(1) (dishonestly obtaining financial advantage by deception)
Cases
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63