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Court of Criminal Appeal 19 February 2025

Colquhoun v R

[2025] NSWCCA 12

Fraud & dishonestyTheft & property
CRIME APPEAL AGAINST CONVICTIONS JUDGE ONLY TRIAL DISHONESTLY DESTROY PROPERTY BY FIRE DEALING WITH PROCEEDS OF CRIME APPEAL AGAINST CONVICTIONS

Citation: Colquhoun v R [2025] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 19 February 2025
Judges: Basten AJA (principal judgment); Dhanji J and Sweeney J (agreeing)

Background

During the catastrophic Currowan bushfire of late 2019 and early 2020, a property owner near the Shoalhaven River had his house destroyed by fire in the early hours of 5 January 2020. He promptly made an insurance claim and then obtained financial assistance from multiple government agencies and charities established to assist bushfire victims.

Following a police investigation, the property owner was charged with dishonestly destroying his own house by fire for financial gain, eight counts of dishonestly obtaining a financial advantage by deception, and one count of dealing with proceeds of crime totalling $427,200. He pleaded not guilty to all charges.

A judge-alone trial was conducted before O'Brien DCJ in the District Court at Wollongong over ten days in June 2023. On 4 October 2023, the trial judge delivered a written judgment convicting the applicant on nine of the ten counts. He was sentenced on 15 December 2023 to an aggregate term of five years and six months imprisonment, with a non-parole period of three years and six months. He appealed his convictions.

The Court of Criminal Appeal was asked to consider whether:

  • The trial judge improperly disregarded the applicant's expert evidence about the cause of the fire (specifically, whether an ember attack from the nearby bushfire started the blaze)
  • The convictions on counts 4, 5 and 9 (involving financial claims not directly dependent on the cause of the fire) were sound
  • The applicant should be permitted to issue notices to produce documents for the appeal
  • Leave should be granted to tender further expert evidence on appeal
  • The applicant's trial counsel was incompetent, including by failing to adequately prepare and lead evidence

Decision

The arson finding (count 1). The trial judge had rejected the applicant's fire expert's hypothesis of an ember attack, a conclusion supported by witness observations, photographic evidence taken by the applicant himself, and adverse credibility findings arising from the applicant's inconsistent statements across police interviews, his evidence in chief, and cross-examination. The Court of Criminal Appeal found no error in that reasoning. The objective evidence, taken together with the rejection of the applicant's account of seeing an "orange glow," provided a sound evidential basis for the conclusion, beyond reasonable doubt, that the applicant had started the fire himself.

The financial advantage counts. The court addressed counts 4, 5 and 9 individually. On count 4 (a claim to St Vincent de Paul Society), there was ample evidence that the applicant knew his insurance status and made false statements. On count 5 (claims to the NSW Rural Assistance Authority), the applicant had claimed for tyres not purchased and for burying dead animals in amounts contrary to any plausible expense. On count 9 (claims to Services NSW as a small business affected by bushfire), the evidence did not support the claim that all tools were lost in the fire, and the backhoe said to require replacement due to fire damage had been in continued use for months afterwards before being replaced for unrelated maintenance reasons. Although the Court upheld a narrow challenge to one energiser claim within count 9, that finding did not affect the amount of the false claim pleaded and so the conviction was not disturbed.

Notices to produce and further evidence. The application to issue notices to produce was refused: it was made out of time, amounted to a fishing expedition, and the documents sought were not related to the issues on appeal. The application to tender a further expert report on ember attack mechanisms was also refused. The Court noted it will be rare for evidence available before trial but not obtained to justify a finding of miscarriage of justice. The applicant's contention that the new evidence relied on technologies or studies not available at trial was not supportable, and the new report simply advanced another variant of the ember attack theory already rejected by the trial judge.

Incompetence of counsel. The Court rejected this ground entirely. The evidence led at trial was extensive, and the scope of the applicant's evidence in chief presented genuine forensic challenges given his prior inconsistent statements. The alleged failure to directly challenge the prosecution expert's qualifications did not demonstrate incompetence, and the failure to obtain documents now sought through notices to produce did not reveal any relevant failing by trial counsel or the solicitor.

Orders Made

  • Application to issue notices to produce for the purposes of the appeal: refused
  • Motion seeking leave to rely upon further evidence on the appeal: dismissed
  • Appeal against conviction: dismissed

Key Takeaways

  • A conviction for arson can be upheld even where a major bushfire was burning nearby, provided the trial judge's rejection of an ember attack hypothesis is grounded in witness evidence, objective conditions, and well-founded credibility findings against the accused.
  • Adverse credibility findings supported by multiple inconsistent statements across police interviews and trial evidence provided a secure foundation for the trial judge's conclusions, and the Court of Criminal Appeal found no basis to disturb them.
  • Leave to tender fresh expert evidence on appeal will rarely be granted where the evidence was available before trial but was not obtained; a further report that merely advances another mechanism for a theory already rejected at trial does not satisfy the threshold.
  • In dismissing the incompetence ground, the Court confirmed that tactical and forensic choices made by experienced counsel, including the scope of evidence in chief and decisions about challenging expert qualifications, do not readily constitute incompetence absent clear failing.
  • Challenges to convictions on financial advantage counts that are not directly dependent on the cause of a fire will fail where the trial judge's findings are adequately supported by independent evidence of false representations, regardless of the primary arson finding.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- DW v The Queen [1991] 1 SCR 742
- Johnson v Western Australia [2008] WASCA 164; 186 A Crim R 531
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Birks (1990) 19 NSWLR 677