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District Court 27 October 2022

R v Andrews

[2022] NSWDC 743

Other
CRIME PRINCIPAL JUDGMENT JUDGE ALONE TRIAL CIRCUMSTANTIAL CROWN CASE

Citation: R v Andrews [2022] NSWDC 743
Court: District Court of New South Wales
Date: 27 October 2022
Judge(s): Coleman SC DCJ

Background

During the 2019 "Black Summer" bushfire season, five fires broke out on 3 December 2019 at Castlereagh and Clarendon in Western Sydney. The defendant faced five counts of intentionally causing a fire and being reckless as to its spread on public land, contrary to s 203E of the Crimes Act 1900 (NSW), with Rural Fires Act 1997 (NSW) offences available as alternatives.

The defendant had been found permanently unfit to plead by reason of cognitive impairment in October 2021. Proceedings therefore continued as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), conducted without a jury before a judge alone. The defendant was legally represented and was taken to have entered a plea of not guilty to all charges.

The Crown's case was entirely circumstantial. No witness saw the defendant light any fire. The Crown relied on CCTV footage, mobile phone tower records, eyewitness accounts of a maroon SUV near each fire, fire investigation expert evidence, and evidence that the defendant had fabricated an account to explain his car's presence in the area.

Legal Issues

  • Whether the CCTV footage and phone records established, beyond reasonable doubt, that the defendant was present near each fire at the relevant times.
  • Whether the expert and lay evidence established that each fire was intentionally lit rather than accidentally or negligently caused.
  • Whether the tendency evidence served under s 97 of the Evidence Act 1995 (NSW) was admissible and probative.
  • Whether the coincidence evidence served under s 98 of the Evidence Act 1995 (NSW) was admissible and could support findings of guilt across multiple counts.
  • Whether the defendant's false account of his whereabouts constituted a deliberate lie and evidence of consciousness of guilt.
  • What verdicts were available at a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

Decision

Issue 1: The defendant's presence near each fire

The court found that the maroon-red Toyota RAV4 shown in CCTV footage throughout 3 December 2019, including at night, was the defendant's vehicle and that he was driving it (at [62]-[64]). That finding rested on the defendant's own admissions about the daytime footage, mobile phone tower data placing his device in the relevant areas, the visual similarity of the vehicle, and the systematic elimination of other vehicles by military police Sergeant Chegwyn at the RAAF Richmond base (at [62]-[63]). The court acknowledged this finding did not alone establish guilt, but it placed the defendant in the vicinity of each fire at or about the time each was reported (at [64]).

Issue 2: Intentional causation of each fire

For the Fire Trail Road and Smeeton Road fires, expert fire investigators eliminated natural and mechanical causes, concluding the fires were "suspicious" and likely involved "human intervention," though neither expert could confirm deliberate ignition (at [190]-[194]). The court found the coincidence evidence, the defendant's proximity to all five fires in a confined geographic area over a short period, and the consciousness of guilt findings collectively led to the only rational inference that he intentionally lit each fire (at [200]-[205], [208]). For the Wingara Glen, Racecourse Road, and Percival Street fires, the court applied the same combined circumstantial reasoning, finding it highly improbable that those fires were accidently lit or lit by anyone else (at [214], [218], [220]). The submission that the defendant may have accidentally thrown lit cigarettes from his car was rejected as not a rational inference on the facts (at [203]).

Issue 3: Tendency evidence

The court rejected the Crown's tendency evidence. Because there was no prior history of fire-lighting and no direct evidence the defendant had lit any fire before 3 December 2019, any finding of tendency was circular: the tendency could only be established by first finding guilt on individual counts (at [113]-[118]). The court also rejected the asserted tendency state of mind, finding that texts about local fires and a phone call checking on relatives during the bushfire emergency did not support an inference of fascination or obsession with fires (at [120]-[123]).

Issue 4: Coincidence evidence

The coincidence evidence was admitted and given significant weight (at [128]). The court accepted that the improbability of multiple fires occurring on the same day, in a confined area, each with the defendant's car observed nearby at or about the time of ignition, and with no other identified cause, supported the inference that one person was responsible and that person was the defendant (at [129]-[131]).

Issue 5: Consciousness of guilt

The court found the defendant did not work on 3 December 2019, rejecting his account that he was at work before driving to observe the fires (at [157]). Business records, payslips, and workmate evidence confirmed he was not rostered or paid that day (at [154]-[155]). The court further found he fabricated the story about going to buy alcohol and stickybeak at fires, as records from the bottle shops he named showed no relevant purchase (at [158]). The court found he told deliberate lies to explain his car's appearance in a police flyer, that those lies related to significant circumstances connected with the charged offences, and that he lied because he feared the truth would implicate him (at [172]-[174]). Those lies were treated as evidence of consciousness of guilt and weighed alongside the other circumstances (at [174]).

Issue 6: Recklessness as to spread

Having found each fire was intentionally lit, the court found the defendant was also reckless as to its spread. He drove away from each fire without any attempt to contain it, in conditions of extreme fire risk during the Black Summer, and often departed at speed (at [222]-[224]).

Orders Made

  • Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant was found to have committed the offences charged in all five counts on the indictment.

Key Takeaways

  • At a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is taken to have pleaded not guilty, must have legal representation, and may raise any defence a fit person could raise; the hearing is conducted as nearly as possible to an ordinary criminal trial (at [5]-[7]).

  • Tendency evidence under s 97 of the Evidence Act 1995 (NSW) cannot be established from the same conduct alleged in the charges where no prior history of the relevant conduct exists: doing so creates an impermissible circularity, as the tendency can only be proved by first finding guilt on the very counts the tendency evidence is meant to assist (at [113]-[118]).

  • A wholly circumstantial Crown case requires the court to consider all established facts together rather than in isolation; an essential intermediate fact, such as whether it was the defendant's vehicle at the scene, must be proved beyond reasonable doubt before it can form an indispensable link in the reasoning chain toward guilt (at [44], [91]).

  • Where a defendant's account is rejected as a deliberate lie, the court may treat it as consciousness of guilt evidence, but only after finding: the lie was deliberate; it related to a significant circumstance connected with the alleged offence; and it was told because the defendant feared the truth would implicate him in that offence (at [162]-[166]).

  • Coincidence evidence under s 98 of the Evidence Act 1995 (NSW) may carry significant probative weight in a bushfire arson case where multiple fires occur on the same day in a confined area, the defendant's vehicle is observed near each, no other cause is identified, and the probability of innocent coincidence is low; in a judge-alone hearing, the ordinary dangers of jury misuse of such evidence carry reduced weight (at [128]-[131]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4A, 203E, 203D
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 97
- Rural Fires Act 1997 (NSW), s 100(1)(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) , s 14
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 54

Cases
- De Silva v The Queen [2019] HCA 48
- Elomar v The Queen (2014) 316 ALR 206
- Liberato v The Queen (1995) 159 CLR 507
- R v Baden-Clay (2016) 258 CLR 308
- R v Kinsela [2003] NSWCCA 92
- Shepherd v The Queen (1990) 170 CLR 573
- Townsend v The King [2022] VSCA 201
- Wiggins v R [2020] NSWCCA 256