Citation: Papanikolaou v R; Tomaras v R [2021] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 30 June 2021
Judges: Hoeben CJ at CL, Hamill J, Hidden AJ
Background
Commercial premises in Mascot were observed ablaze on 29 December 2015. Two men (described here as the first and second applicants) had been inside the building shortly before the fire was noticed, but had left by the time it was detected. They returned, spoke with police, and gave witness statements. About a year later, each was charged with arson under s 197(1)(b) of the Crimes Act 1900 (NSW), which concerns dishonestly damaging property by fire with a view to financial gain.
The prosecution case was circumstantial. It included evidence of the applicants' presence at the building before the fire, their association with the building owner, a $1.8 million insurance policy on the premises, lies told to police about where the men met that morning, intercepted telephone calls containing oblique references to "a certain job" and "s honky things," a $30,000 invoice from the first applicant to the building owner's company for "project management," and a direct admission by the first applicant to a third party.
A jury found both men guilty after approximately two weeks of deliberations. They were each sentenced to terms of imprisonment and subsequently sought leave to appeal against their convictions. Neither sought leave to appeal against sentence.
Legal Issues
- Whether the jury's verdicts were unreasonable or could not be supported on the evidence, given that expert evidence acknowledged a possibility the fire was caused by an electrical fault or arcing rather than deliberate ignition
- Whether the prosecution was required to call a witness known as "Mr Hu" (the building owner), and whether his absence warranted a direction to the jury under the principles from Mahmood v Western Australia (2008) 232 CLR 397
- Whether the trial judge was required to specifically identify, in her directions to the jury, each innocent inference relied upon by the defence in a circumstantial evidence case
Decision
Unreasonable verdict ground: The Court of Criminal Appeal independently examined the evidence and concluded the verdicts were not unreasonable. While some expert evidence acknowledged a "possibility" of accidental causes such as electrical arcing or a left-on toaster, the preponderance of expert opinion favoured deliberate ignition. More significantly, the court held that the expert evidence could not be viewed in isolation. The cumulative weight of the circumstantial evidence, including intercepted calls with coy references to the job, the invoice for "project management," evidence of debt-chasing, and the first applicant's direct admission to a third party, gave rise to what the court described as an irresistible inference of guilt. The court found no reasonable doubt remained after examining the whole of the evidence.
Failure to call Mr Hu: The prosecution did not call the building owner as a witness. The applicants argued this omission required a direction to the jury that his absence could or should give rise to a reasonable doubt. The court rejected this argument. The prosecutor had formed the view that Mr Hu was not a reliable witness, and had offered to assist the defence to call him if they wished. The court found that no Mahmood direction was required in the circumstances, and that no forensic disadvantage to the applicants arose from his absence.
Circumstantial evidence directions: The applicants contended the trial judge was required to identify each specific innocent inference they relied upon in her summing-up directions on circumstantial evidence. The court dismissed this ground. No such direction had been sought at trial, and the court found that requiring the judge to enumerate each innocent inference would not, in any event, have assisted the applicants. In some respects, identifying those inferences individually could have worked against them by highlighting the number and extent of such hypotheses the jury was being asked to accept simultaneously.
The Court of Criminal Appeal granted leave to appeal but dismissed both appeals against conviction.
Orders Made
- Leave to appeal against conviction granted for both applicants
- Appeals against conviction dismissed for both applicants
Key Takeaways
- In a circumstantial arson case, expert evidence conceding a mere "possibility" of accidental cause does not automatically generate a reasonable doubt where a substantial body of other circumstantial evidence points overwhelmingly to deliberate ignition.
- A Mahmood direction (inviting the jury to draw an inference from a prosecution witness's absence) is not automatically required simply because the prosecution declines to call a witness. Where the prosecution has formed a genuine view that the witness is unreliable and has offered to facilitate the defence calling that witness, no direction will ordinarily be warranted.
- Circumstantial evidence must be evaluated as a whole rather than each item in isolation. The Court of Criminal Appeal confirmed that a jury is entitled to treat the accumulated weight of multiple strands of circumstantial evidence as establishing guilt beyond reasonable doubt, even where individual strands leave room for innocent explanation.
- No error arose from a trial judge's failure to identify specific innocent inferences in circumstantial evidence directions where no such direction was sought at trial. Itemising individual innocent hypotheses in a summing-up is not a universal requirement and may, in some cases, operate against an accused's interests.
- Recorded communications using indirect or coded language, combined with financial arrangements and direct admissions to third parties, can form a powerful body of evidence capable of supporting a conviction for dishonest property damage by fire.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 195(1)(b), 197(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Coughlan v The Queen (2020) 267 CLR 654
- Dickson v R (2017) 94 NSWLR 47
- Dyers v The Queen (2002) 210 CLR 285
- Jones v Dunkel (1959) 101 CLR 298
- Knight v The Queen (1992) 175 CLR 495
- M v The Queen (1994) 181 CLR 487
- Mahmood v Western Australia (2008) 232 CLR 397
- Pell v The Queen (2020) 268 CLR 123
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Apostilides (1984) 154 CLR 563
- The Queen v Baden-Clay (2016) 258 CLR 308
- Whitehorn v The Queen (1983) 152 CLR 657
- Hawi v R [2014] NSWCCA 83
- Koloamatangi v R [2020] NSWCCA 52
- Popovic v R [2016] NSWCCA 202
- R v Gibson [2002] NSWCCA 401
- R v Kneebone (1999) 47 NSWLR 450
- RPS v The Queen (2000) 199 CLR 620