R v Kerfoot

Citation: R v Kerfoot [2026] NSWDC 332
Court: District Court of New South Wales
Date: 21 August 2026
Judge(s): Newlinds SC DCJ

Background

On the night of 10 January 2024, a residential property at 69 Bligh Street, South Grafton was destroyed by fire while unoccupied. The property was jointly owned by a couple who had separated but continued living there together with the accused, who was in an on-again, off-again relationship with the female owner. CCTV footage captured a person entering the property shortly before the fire, and a person leaving from the backyard at 10:47 PM.

The accused was indicted for recklessly destroying property by fire. The Crown's case was entirely circumstantial: it relied on CCTV footage, evidence of the accused's distinctive walking gait, a Metallica beanie found with his DNA near the property after the fire, a volatile relationship providing motive, and alleged threats made on the night of the fire.

The accused pleaded not guilty and, in a police interview, denied being anywhere near Bligh Street that evening. With the consent of both parties, the trial proceeded before a judge alone, heard over approximately seven days in Grafton in August 2026.

Legal Issues

• Whether the Crown proved beyond reasonable doubt, as an intermediate fact, that the accused was the person depicted entering and leaving the property in the CCTV footage on the night of the fire.
• Whether identification evidence based on walking gait, including lay opinion evidence from witnesses familiar with the accused, was capable of supporting that finding.
• Whether the Crown proved beyond reasonable doubt that the accused acted recklessly, in the legal sense, in starting the fire.
• Whether the accused's account in his electronically recorded interview with police could be accepted, or might possibly be true, so as to require an acquittal.
• Whether a lie told by the accused in his police interview could be used as evidence of consciousness of guilt.

Decision

Issue 1: Intermediate fact — identity of the person in the CCTV footage

The court identified the accused's identity as the person shown entering and leaving the property as an indispensable "link in the chain" of reasoning, making it an intermediate fact requiring proof beyond reasonable doubt (at [38]). The Crown's evidence on this point was circumstantial, built from multiple strands: the accused was clearly depicted wearing dark clothing and a Metallica beanie leaving the Australian Hotel at approximately 9:23 PM (at [15]); subsequent CCTV footage showed a person of similar appearance moving through South Grafton toward the property (at [91]–[95]); multiple witnesses who knew the accused described his gait as distinctive and unusual, and gave lay opinion evidence that the person in the footage walked like him (at [70], [92]); a Metallica beanie bearing the accused's DNA was found in a tree near the property the morning after the fire (at [219]); and the accused returned home at 11:49 PM without the beanie (at [98]).

The court applied careful warnings about the unreliability of identification evidence generally, and gait-based identification in particular, noting the real risk of confirmation bias given that several witnesses had already formed a view about who was responsible before viewing the footage (at [71]–[73]). Nonetheless, the court viewed the footage itself and concluded, having made its own comparison between the accused's distinctive gait as seen in the hotel footage and the later footage near the property, that the gait was so unusual and so similar as to constitute the same person (at [355]). Taken together, the court found all the strands formed what it described as an unbreakable cable, and was satisfied beyond reasonable doubt that the accused was at all times the person in the compiled footage (at [354]).

Issue 2: The accused's police interview account and the lie direction

The accused told police he had walked home via Rushforth Road and had not been near Bligh Street that night. The court found this account was contradicted by CCTV footage showing the accused walking past the Toyota dealership in precisely the opposite direction to the route he described (at [349]). The court applied the relevant legal directions: a lie can only be used as evidence of consciousness of guilt where it is knowingly false and told to conceal involvement in the offence, and not where it may have been told for some other reason (at [65]–[67]). The court was satisfied the lie was told because the accused feared the truth would expose his guilt, and took it into account alongside all other evidence (at [349]–[350]). The court rejected the accused's account and did not consider it might be true (at [349]).

Issue 3: Recklessness

The defence submitted that even if the accused started a fire, it could have been a small, deliberate fire with no intent to destroy the property, which then accidentally ignited accelerants and got out of control. The fire investigation expert conceded this was a theoretical possibility (at [312]). The court acknowledged the concession but found that possibility so remote as not to be reasonably and rationally open on the evidence (at [356]). Accepting the accused was in a heightened emotional state, had a motive to harm the property owner, and that expert evidence indicated accelerant had been deliberately deployed, the court concluded the accused intended to cause at least some property damage and was reckless as to the risk of greater destruction (at [356]–[357]).

Issue 4: Verdict

The court was satisfied beyond reasonable doubt as to each element of the offence: the accused deliberately started the fire, was reckless as to its consequences in that he intended to cause some damage knowing there was a risk of greater damage, and the fire destroyed the house (at [357]). The court returned a verdict of guilty (at [358]).

Orders Made

• On the single count on the indictment, the accused is guilty.

Key Takeaways

• Where a single fact is so fundamental to the inferential chain leading to guilt that guilt could not rationally be inferred without it, a court should identify that fact as an intermediate fact requiring proof beyond reasonable doubt, even in a case where the overall approach treats guilt as provable by accumulation of strands in a cable (at [37]–[38]).

• A conviction for arson-related recklessness does not require proof that the accused intended full destruction of the property; it is sufficient that the accused intended to cause some property damage and was aware of the risk of greater harm yet proceeded regardless (at [314], [357]).

• Lay opinion evidence from witnesses familiar with an accused's gait is an admissible, if limited, form of identification evidence. The District Court emphasised that significant caution is required, particularly where witnesses may have formed prior views as to guilt, creating a real risk of confirmation bias (at [71]–[73]).

• A knowingly false denial in a police interview, where the lie relates directly to the accused's presence at the scene and is found to have been told to conceal guilt, may be taken into account alongside other circumstantial evidence. However, a lie cannot on its own, or in direct combination with other evidence, establish guilt (at [60]–[67]).

• In a judge-alone criminal trial, the judge is required by ss 133(2) and (3) of the Criminal Procedure Act 1986 (NSW) to direct themselves on the relevant principles of law, including the onus and standard of proof, the treatment of circumstantial evidence, intermediate facts, identification evidence, lies, and the significance of an accused's silence at trial (at [24]–[78]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW); ss 133(2); 133(3) Evidence Act 1995 (NSW) ss 38; 128

Cases
- Nil