Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

R v TAJ[2021] QCHC 41

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v TAJ [2021] QChC 41

PARTIES:

THE QUEEN (prosecution)

v

TAJ (defendant)

FILE NO/S:

48/2020

DIVISION:

Criminal

PROCEEDING:

Trial – Judge Only

ORIGINATING COURT:

Childrens Court of Queensland, Maroochydore

DELIVERED ON:

26 November 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

27-29 July 2021

JUDGES:

Long SC, DCJ

ORDER:

The defendant is found guilty.

CATCHWORDS:

TRIAL – JUDGE ALONE – where the defendant is charged with one count of setting fire to standing trees, saplings or shrubs pursuant to s 463(c) of the Criminal Code – where it is not in contention that fire was set to standing trees, saplings or shrubs – whether it was an act by the defendant that resulted in the standing trees, saplings or shrubs being unlawfully set on fire – whether the act was wilful

LEGISLATION:

Criminal Code Act 1899 (Qld), ss 23, 461, 462, 463

Evidence Act 1977 (Qld), ss 21A, 93A

Fire and Emergency Services Act 1990 (Qld), s 62

Youth Justice Act 1992 (Qld), Division 6 of Part 2

CASES:

De Silva v The Queen (2019) 94 ALJR 100

Edwards v The Queen (1993) 178 CLR 193

Liberato v The Queen (1985) 159 CLR 507

Pemble v The Queen (1971) 124 CLR 107

R v Bayden Clay (2016) 258 CLR 308

R v Burnell [1966] Qd R 348

R v Collins [2018] 1 Qd R 364

R v Cormack [2013] QCA 342

R v Dolley [2003] QCA 108

R v Eustance [2009] QCA 28

R v Joinbee [2014] 2 Qd R 69

R v Lockwood; ex parte Attorney-General [1981] Qd R 209

R v Mitchell [2008] 2 Qd R 142

R v Oliver [2016] 2 Qd R 586

R v Perera [1986] 1 Qd R 211

R v SDE [2018] QCA 286

R v Webb; ex parte Attorney-General [1990] 2 Qd R 275

R v Wehlow (2001) 122 A Crim R 63

Shepherd v The Queen (1990) 170 CLR 573

Zoneff v The Queen (2000) 200 CLR 234

COUNSEL:

AQ Stark for the prosecution

KB Juhasz for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions

Legal Aid Queensland for the defendant

INDEX

Page

Introduction

4

The allegation

6

Applicable principles

7

The evidence

8

Did the defendant A set fire to the standing vegetation

40

Did the defendant act wilfully

47

Verdict

56

Introduction[1]

  1. [1]
    The ninth day of September 2019 was a typically fine spring day at Peregian Springs. That afternoon and after school had finished for the day at the Coolum State High School, two male grade nine students, J and B, determined to go to an area in the bushland adjacent to Koel Circuit, Peregian Springs, to smoke some cannabis. They invited two female schoolmates from the same grade, I and the defendant A, to join them. They were waiting for the commencement of Oztag games, later in the evening, at Peregian Springs. The girls agreed to meet with the boys.
  2. [2]
    The four youths went into the bushland.
  3. [3]
    By 4.21pm, calls were made to emergency services in respect of a bushfire which was spreading through the bushland bounded by Koel Circuit to the north, Sunshine Motorway to the east, Brushbox Way to the south and Ridgeview Drive to the west. Within 20 minutes of the first 000 call, the fire had spread at a rate of 10m per minute and was observed to have progressed to the east, adjacent to David Low Way. It progressed to be a significant bushfire and a major incident in the surrounding locality.
  4. [4]
    Investigation into the matter disclosed that the origin of the bushfire could be sourced to the area to which the four youths had gone and more particularly that:
  1. (a)
    the area of origin of the fire was described as being 45 to 51 metres south of 25 Koel Circuit, Peregian Springs, which location revealed the indicia of use of small campfires and evidence of human attendance there (chairs and debris); and
  1. (b)
    “a plastic milk crate was placed upon the developing fire and then removed, ignited and cast aside to the south several metres” and “the point of ignition is the initial small campfire and a southern line of burning plastic to the cast burning plastic milk crate aside south over a distance of several metres”.[2]
  1. [5]
    At an early stage and in the first instance, through information coming to police attention as to some “Snapchat” communications indicative of the youth J having some knowledge as to the commencement of the fire, the four youths who had been in attendance at this location, were identified and each of them was interviewed by police on 10 September 2019. Each of the girls were interviewed a second time on 11 September 2019. As a result of police investigations, two of those youths became prosecution witnesses and the boy J and the girl A, were charged with offences.
  2. [6]
    By indictment presented in this Court on 17 December 2020, the boy J and the defendant A were each charged with an offence of endangering residential and commercial buildings by fire, pursuant to s 462 of the Criminal Code and alternatively, with an offence of setting fire to standing trees, saplings or shrubs pursuant to s 463(c) of the Criminal Code.[3]
  3. [7]
    Subsequently to the determination of a pre-trial application made by the defendant J, the trial of those accusations commenced, against both defendants, in accordance with the election of each of them pursuant to Division 6 of Part 2 of the Youth Justice Act 1992, before a Judge sitting without a jury, on 27 July 2021. Notably, the matter then proceeded as follows:
  1. (a)
    When the Court resumed on 28 July 2021, the prosecution entered a nolle prosequi on the indictment in respect of the male defendant J. That is, by requesting the return of the indictment and endorsing it that it would not further proceed in respect of that defendant;[4]
  1. (b)
    Later on the same day, the prosecution indicated a similar position in respect of the remaining female defendant A, in respect of the primary allegation and also obtained leave to amend the alternative allegation made pursuant to s 463(c) of the Criminal Code, as it then remained as the allegation against that defendant;
  1. (c)
    Further evidence was then received in the prosecution case, as to that allegation, on 28 and 29 July 2021;
  1. (d)
    The defendant elected not to adduce any evidence and the parties were then provided opportunity to address the legal issues to be considered in this matter, with directions given as to the filing and serving of written submissions, to further address those issues and as the closing address of each party. Such written submissions were filed, accordingly, with some enlargement of time allowed, respectively for the prosecution on 20 August 2021 and for the defendant, on 6 September 2021.

The allegation

  1. [8]
    Accordingly the allegation which remains for the consideration of this Court, is indicted as follows:

“That on the ninth day of September, 2019 at Peregian Springs in the State of Queensland, [A] wilfully and unlawfully set fire to standing trees, saplings, or shrubs.”

That allegation is further particularised as follows:

“The defendant juvenile [A] threw or kicked a crate, which was on fire or burning to some extent, to “bush” or standing vegetation in an area of bushland.

This conduct set that “bush” or standing vegetation on fire.

The defendant juvenile [A] either intended this result through that conduct, or this result was a likely consequence of that conduct but that she recklessly did or persisted in doing that despite or regardless of the risk.”[5]

  1. [9]
    There is no direct authoritative guidance in respect of an offence charged pursuant to s 463(c) of the Criminal Code. However, it may be noted that the charge involves elements which are also found in ss 461 and 462 of the Code, and which sections have been the subject of authoritative discussion. As is alleged, it is necessary that the prosecution prove that the defendant:
  1. Set fire to standing trees, saplings or shrubs;
  2. Did so wilfully; and
  3. Did so unlawfully.

Here there is no doubt that at the time and place alleged, fire was set to vegetation within the description of “standing trees, saplings or shrubs”. It is admitted that the vegetation in the initial fire area bounded as described by Koel Circuit, Sunshine Motorway, Brushbox Way and Ridgeview Drive, consisted of a variety of “centre damp heath, wallum scrub, blade grasses, scribbly gum trees and paperbark gum trees”.[6] And there is no doubt on the evidence, that surrounding the small campfire site identified as part of the source of the fire, were standing trees and shrubs of the type identified, which were set alight.

  1. [10]
    Further, and in the event that as the prosecution alleged, it was an act of the defendant A, which caused that “standing vegetation” to be set alight, there was nothing raised in the evidence, nor any suggestion on behalf of the defendant that such conduct was otherwise than unlawful, in the sense of there being any authorisation, justification or excuse at law for it.
  2. [11]
    The critical questions are therefore as to whether it was by an act of the defendant that this standing vegetation was set alight and, if so, whether she did so wilfully.

Applicable principles

  1. [12]
    Before turning to those questions, it is convenient to note the general principles which are to be applied to the resolution of them:
    1. (a)
      The onus of proof of each of the elements of an alleged offence remains upon the prosecution, to the standard of proof beyond reasonable doubt. And this remains so, notwithstanding that the defendant elected, as she was entitled to do, not to give or call any evidence in the trial. The defendant remains presumed to be innocent until the prosecution proves otherwise and no adverse inference may be drawn from her election not to give evidence.
    2. (b)
      The evidence of the witnesses B and I included their adoption of the recorded interviews with them (admitted pursuant to s 93A of the Evidence Act 1977), with measures adopted pursuant to s 21A of that act,[7] whereby each gave evidence by audio-visual link from a remote room, with a support person present in that remote room and the defendant not visible, from the courtroom, by the visual link. It is necessary that no significance is placed upon the adoption of such routine practices and such as would be explained to a jury pursuant to s 21A(8) of the Evidence Act 1977.
    3. (c)
      Although it will be necessary to return to the prosecution reliance upon the first recorded interview with the defendant, as containing lies, demonstrative of her consciousness of guilt of the offence, there is also prosecution reliance upon admissions against interest in each of the interviews. It is, therefore, necessary to discern from the recording, with the aid or assistance of the transcripts provided, what was relevantly said.[8]  Further and whilst it remains a matter for assessment as to what weight is to be given to the answers or statements of the defendant which are indicative of her innocence, it is necessary to bear in mind that even if not considered credible and reliable and therefore entitling a not guilty verdict, such result may follow from even unconvincing assertions, which leave the Court in a state of reasonable doubt as to where the truth lies. And that any decision to not accept the defendant’s statements as to her innocence, does not determine any allegation, all of which remain dependent upon the assessment of the remaining evidence.
  2. [13]
    A further matter to be noted in this instance, is that prior to the development in this trial, whereby the indicted allegations against the defendant J were the subject of nolle prosequi, the recorded interview conducted with him on 10 September 2019 was tendered and played to the Court. That evidence was only admissible in respect of that defendant and is to be noted as inadmissible against the defendant A. Accordingly, no regard will be had to it and the contents of that interview are to be ignored in respect of the questions to be determined in respect of the defendant A.

The evidence

  1. [14]
    Although the particularly relevant evidence in this trial comes from relatively few sources, it is both convenient and necessary to note some of it in some detail, particularly having regard to the nuance involved in it.
  2. [15]
    For the prosecution, some particular reliance is placed on the evidence of the boy B, as being the most consistent and complete account of the relevant events.[9] At the outset of his interview on 10 September 2019, he provided the following overview:

“Okay so I was with [J] at school when it finished and we decided to go um, to watch a Oz tag game and he wanted to stop at his house first and get changed so I, we went to his house and I waited outside and then we went to a spot in the bush which is where the fire happened um, we were smoking and um, so when we got there, we started smoking and eating and then two girls [I] and [A], [I], [I] and [A] messaged [J] and said we should come to, so they came down and while they were there [J] said it was getting a bit boring and they should light a fire and there was already logs there with a, with like, all he had to do was put some paper bark on it and he used a, his lighter, the yellow one to um, light the fire, threw a crate which has one, which had one side, side missing and while that was burning the crate lit on fire as well and [A] threw the crate into the bush which was around us in a circle, while the fire was in the middle of the circle um, so she had threw the burning crate into the f-, trees and I immediately said, what are you doing? That’s a horrible decision I live right next to here that’s going to start a bush fire and I went over and I stomped it out and it didn’t get too big so I put it out pretty, fairly easily and I moved the crate because it wasn’t fully burning yet too the dirt patch so that it wouldn’t light on anything else and then I went and sat down and I went back on my phone and I look up ‘cause I heard laughing and I saw the crate was back on the trees and this time it was fairly big already so I went over, tried to stomp it out and that wasn’t working to well so I went and grabbed my water bottle from my bag and tried to put it out but it wasn’t doing too, too well because it was fairly big and the wind was taking it so um, I was yelling at everyone and then it got really big so we had to leave and we got to the top of the hill where the street, where the bush was and the two girls [I] and [A] left and me and [J] went to Coles and then it got really big and I saw people calling triple 0 and then mum told me to come home and we got to Coles it was 4:22, that was the only time I checked the time.”[10]

  1. [16]
    He then elaborates, including by drawing a diagram (which was admitted and marked as Exhibit 8) as follows:
  1. (a)
    He and J went to an area in the bush, as they had on prior occasions[11] to smoke cannabis;[12]
  1. (b)
    they went to an area where there was a “circle of no trees just like a dirt floor and there was a crate and um some logs, some already burnt logs and just some rubbish and stuff”[13] and a “bong” and chairs;[14]
  1. (c)
    J had a “yellow … Bic lighter” to light the bong;[15]
  1. (d)
    After the boys smoked cannabis and ate some chips they went out and met the girls and brought them to this location;[16]
  1. (e)
    J decided to light a fire, saying that it was getting a bit boring and that a fire would be good, which included the plastic crate;[17]
  1. (f)
    They “chucked” some paperbark on top and he described that:

“so it just burning and then the crate lit and I, and I said maybe this isn’t a good idea. It probably is going to get a bit bigger … and then [A] grabbed it and threw it into the over here in this, where the trees where … and then I quickly got up and put it out.”;[18]

He marked a location on Exhibit 8, where he put “tree wall”,[19] which was about two metres from where A was[20];

  1. (g)
    He got up and stomped out what was alight and moved “the crate back onto the dirt” and returned to his seat;[21]
  1. (h)
    He then described:

“I went on my phone and then she got back up and threw the crate back in maybe like a bit more over here somewhere.”[22]

And he indicated a location on his diagram, where he said there was not any fire before that happened.[23] However, when then asked “did you see her do it that second time?”, he responded:

“I didn’t see it a second time, no but that’s just everyone was saying wow [A] why’d you put it on the second time?  So I just [indistinct].”[24]

He said that he could not remember who said that, “[he] just heard it”;[25]

  1. (i)
    He got up and ran over as a fire was getting big but was unable to put it out by stomping on it or using his drink bottle, “it was just growing way too quickly”.[26]  The girls were just standing there and J was stomping out the campfire.[27]  He described that they watched it for about 30 seconds and “it got massive” and “[they] had to leave”.[28]  He said “we were all just panicking and just left and it was all really quick”,[29] and that within 30 second of reaching some seats near Coles at Peregian Springs, his mother called him and told him he needed to go home.[30] 
  1. (j)
    He spoke of later conversing with both J and A, by Snapchat messaging:

“Um, yeah I spoke to I think it was [J] first and I was saying that how messed up it is and how I angry I’m at [A] and how I’m gonna get into trouble for this even though I did nothing.”[31]

His recall of messages with A, is recorded as follows:

“SCON UNSWORTH:Okay and again what do you recall about the messages to [A]?

[B]:Basically I was just saying, just telling her how big it was getting and

how stupid it was.

SCON UNSWORTH:Yep and what was her response?

[B]:She was just saying that, yeah it was pretty bad and shouldn’t have

done it.

SCON UNSWORTH:That she shouldn’t have done it?

[B]:Yeah.”[32]

However, and in his evidence to the Court on 29 July 2021, B confirmed that he had no recollection that A ever said “I shouldn’t have done it”,[33] as he had agreed in response to the leading question asked of him in the interview. 

(k)There is then this passage in the interview:

“SCON UNSWORTH:Okay. You were there at the bush spot, I wasn’t and there was three

other people with you. From what you recall, your memory, your

experience um, what was the cause of that bushfire in the trees?

[B]:From the, it was the crate that was on fire getting thrown into the

bush -, bushes.

SCON UNSWORTH:Okay did anyone else other than [A] throw that crate into the

bushes?

[B]:No.

SCON UNSWORTH:Okay.

[B]:I touched the crate but that was to bring it out.

SCON UNSWORTH:Okay.

[B]:Yep.

SCON UNSWORTH:Alright, um, the fire that [J] lit, in your opinion, you were there –

[B]:Yep.

SCON UNSWORTH:Um, did that cause the fire?

[B]:No.

SCON UNSWORTH:To get bigger and bigger?

[B]:No. That would have, that, no that would, it couldn’t go anywhere it

was just dirt surrounding it.

SCON UNSWORTH:Okay and you mentioned that he, he put it out.

[B]:Yeah he put it out while I was putting out the big one.”[34]

  1. [17]
    In his evidence to this Court, B clarified that:
  1. (a)
    When he saw A pick up the crate and throw it into the bush, he saw her stand from her seat and that she threw it from near to where I was sitting (as marked on Exhibit 8), a half a metre or less into the vegetation;[35]
  1. (b)
    He got up, grabbed the crate and stomped out some burning leaves and placed the crate back around or near the fire “in the middle”;[36]
  1. (c)
    He then sat back down to play a game on his phone and when he looked back up, the crate was back in the bush, in the same area but further in this time;[37]
  1. (d)
    It was near where I had been seated and he could see A standing there and I standing a little behind her;[38] and
  1. (e)
    He had heard a female voice saying something about filming it or doing it for like a video or something and he saw A holding up her phone, pointed towards where the fire was just catching, where the crate was in the tree wall.[39]
  1. [18]
    Some less satisfactory aspects of B’s evidence emerged in cross-examination:
    1. (a)
      He said he wouldn’t know if either of the girls smoked any cannabis because he “wasn’t looking up much” and “was on his phone a lot”;[40]
    2. (b)
      When asked if he recalled when the fire was lit in the fire pit and before the crate was lit, whether A said something to the effect of “good one [J].  Light the bush on fire why don’t you”, he said that “[he didn’t] really remember much of what was said that day” or how the crate came to be put on the campfire;[41]
    3. (c)
      Having later conceded the possibility that he put it there and being asked about his assertion to the police as to having said something to the effect that “maybe this isn’t a good idea, it’s probably going to get bigger”, he said that he remembered saying that it was probably not a good idea to have a fire “while its windy and stuff” but otherwise sought to assert that “it’s not hard to control a fire” and that the crate catching the fire did not make the campfire “that much bigger”;[42]
    4. (d)
      After B confirmed his recollection of moving the crate back to “near the firepit”, there is the following exchange:

“If I was to suggest to you that it was actually [A] who moved that crate back to the dirt area near the firepit, what would you say to that?Well, I remember it was [indistinct]  I had, like, burnt hairs on my arms and on my leg and stuff.  Not actual burns but, like, hair got singed.

Okay.  Because you were the one that placed the crate back on the fire that second time, weren’t you?Yeah.

All right.  So you placed the crate next to the fire pit in the dirt;  yep?  That’s your recollection?Yeah, yeah, yeah.

And then, what, you placed the crate back in the firepit?Well, no, just like around the fire where the flame was.  I don’t know if it was directly on top or around it, but it was where the flame was.

So when you say where the flame was   ?In the middle of the dirt patch.

Yep.  So do you place it on top of the logs that are on fire?Yeah, yeah.  The flame, yeah.

So why do you do that?So it can just burn and go down, because it was melting and putting the fire back out.

All right.  So initially what you told police is you just put it next to the fire, in that interview.  But that wasn’t the whole truth, was it?Well, yeah, that doesn’t – I’ve thought about it, and that doesn’t really make sense, because it kept alight, so – yeah.

Did you just tell them you put it next to the fire pit because you were worried you might be blamed for the fire?No, no, no.  That’s just generally what I remembered, but yeah.

But after that time, it came to you that what actually happened is you then moved the crate on   ?Yeah.  Yeah.

   top of the burning fire?Yeah.

Now, you also tell police – excuse me – you never see who removes the crate from the fire that second time?No, I don’t.

You do say you hear everyone saying, “Wow, [A].  Why did you put it on the second time”?Well, yeah, not those exact words but something along those lines.”[43]

Further and after some more particular reference to what he had told the police:

“MS JUHASZ:   Do you have any recollection of the words that you heard at this time for you to infer that [A] had thrown the crate back into the bush?I don’t – no, I don’t remember exact words.  No.

And obviously, when you were speaking to the police, that was the 10th of September 2019?Yeah.

So that was pretty close in time to when this event occurred?Yeah.

But do you have no recollection of those words being said now or what they meant?No, I don’t.

You did tell police that you thought – you told the prosecutor as well, that you thought those words were said by – is it [I] and [J]?Yeah, well they were the only other people there, so   [44]

And after B agreed that in giving evidence about this matter in September 2020, he had said “I’m pretty sure that was [I]”:

“So now I’ve reminded you of that, is your recollection when you think of that conversation that it was Isobel who said those words?I guess it must have been, yeah.

Okay.  And if I was to suggest to you that those words were never said, no one ever said them, and you’ve just created that?Well, they might not have said those exact words, but I do – I did hear something.

I suggest that no words, anything like that, were ever said on this particular occasion?Well, I – I – that’s what I heard, so.”[45];

  1. (e)
    Although he maintained that he had seen A holding up her phone, he could not be sure that it was her that said anything about “wanting it for content”;[46]
  2. (f)
    B said that in his later snapchat conversation with J, J indicated his concern about rumours that it was him who lit the fire and that A was blaming him and J said “make sure you tell them it was [A], because I didn’t do it”. There is then this exchange:

“And did you ever see [J] throw the crate off that firepit?No.  Or – no, no. 

Sorry, what were you going to say?I was thinking about when he was – stomped out that original fire in the middle.  He was, like, kicking logs and stuff, and I thought maybe he kicked the crate off too, but then I remembered it was in the bush.  So   

But you don’t see him throw the crate off at all?No, he doesn’t.  Yeah, no.

And once you put out that fire on the leaves which is connected to the crate and then you place the crate back on the fire pit, you sit down, do you, on the chair again and look at your phone?Yep.

And the next thing you see is the crate in the bushes?Yep.

How far in?  Would you have a memory of that?Well, it was – I said half a metre the first time, and it was probably another half a metre more than that. So I’d say a metre or so in.”[47]

  1. [19]
    Finally, it may be noted that B said that after the fire, he heard that there was a video of the fire but that he “didn’t actually get to see a video or anything”.[48]
  2. [20]
    To the extent that there are indications of a guarded approach in the evidence of B, such is markedly more evident in the evidence of I. Apart from her references to matters which have been noted as being uncontroversial, including the description as to how she and A came to be at the location of the fire and the general seating arrangements noted by B in his evidence and in Exhibit 8, it may be noted that by way of summary of events, in her first interview with police on 10 September 2019, she said:

‘Um, went home after school and I had an Oz tag game and [A]’s mum dropped us off early um, we were two hours early so we texted [J] and [B] and we just said like, do youse wanna hang out?  Where are youse?  And they told us to meet them there so we left the rec club and went down a street near Coles where they were waiting for us on the road and then they said, come with us like down here and we went through a bit of bush, across some rocks and then into the thicker bush and then there was a fire pit like a circle pit with coals in the middle and chairs all around it and um, they had been smoking before we got there um, when we got there um, I had one and [A] didn’t have any um, and we were just sitting around for a while when [J] picked up a piece of bark or ripped it off a tree I’m not sure and he held it and lit it from the bottom and caught really quickly and he freaked out and like threw it onto the ground next to him and the grass caught alight so I jumped up and I started stomping it out and [A] and [B] like stood up out of their chair ready to come over if they needed and [J] was just in shock like looking at it and then um, he started a small, controlled fire in the fire pit area and then he had this big, thick like long stick and then he put it like in the fire um, to get the end burnt and then when he went to move the stick other sticks like flew out onto the grass again and heaps of the grass … heaps of the grass caught on fire so me, [A] and [B] jumped up and started stomping out the grass and the stick um, and then I can’t remember what [J] was doing while this was happening but he wasn’t stomping it out and then um, [J] picked the stick back up … and then um, [J] picked up the crate um, out of the bush behind his chair. And he chucked it in the fire and we were s-, s-, back sitting by then and then one of them, [J] or [B] said like um, jump back so we stood up and like moved back and [A] was like, why? And one of them said … so we got up and stepped back and then [A] said, why? And then [B] said, ‘cause it’s about to get really big um, and then it was like it started dripping and it was big so [J] like flipped it onto the like off the fire so we could try and put it out but then the grass caught so then we started stomping out what we could and what we couldn’t [B] was putting it out with his water bottle and then we put it back on the fire pit and not sure like what happened from there … like too many different stories but um, it caught the bush. Me and [A] were getting mad at [J] like saying like, stop doing that, stop lighting fires like it’s going to catch. So we left we started walking out and then [J], um, [B] ran and caught up to us and then we were walking with [B] and [J] came out a different way from us um, on his scooter and then he rode up to us and grabbed [B] and they went home um, me and [A] walked up the hill towards Coles and when we got to the top of the hill we saw the smoke and realised it got bigger and we couldn’t do anything and so I said, should we call um, the fire brigade and [A] said um, no that’s so suss um, like someone else will lets just keep walking like it’ll be fine um, and I kept getting worried and then we got to the roundabout we saw [H] and I said let’s go over to [H]. So we crossed we went over to [H]… and a guy either [H] or his dad. Um, and um, I said, should we call the fire brigade? to [H] and then [H] said, no um, he just got off the phone with them, he told them, and dad came over and said that he had gotten heaps of calls about it um, so we thought it was gonna be okay and then we walked back to the rec club and saw it was only getting worse and started freaking out so yeah.[49]

Later in that interview, there is the following:

“So there was already like a circular fire pit where someone had had a fire before with coals and stuff on it. Um, and like there was no grass around it like it was yeah so he grabbed a couple of sticks I’m assuming, I didn’t see him grab ‘em um, and lit like a small little um, fire and then he had like his biggest stick and he was trying to like get it to light um, and then when he pulled it out like a stick like flew and then like some grass caught um, again so that’s when me, [A] and [B] jumped up and were stomping it out … we were just saying [J] stop, [J] stop like just trying to like get it under control um, freaking out kind of … I think we sat back down and um, the small fire was still going, we thought it was fine um, and then [J] like leaned back over his chair and grabbed a crate from um, in the bush it was like a half snapped black milk crate and it was empty and he chucked it on the fire um, and then they said, one of [J] or [B] said, jump back um, so we got up and we liked stepped back and [A] said, why? And then [B] said, um ‘cause it’s about to get real big and then it kind of got bigger and we were like f -, kinda freaking out so [J] got the stick and flicked it off the fire like away from it not realising the-, there’s grass and bush um, so then it started lighting the grass and bush ... and we were stomping out bits and then we told [B] to get his water bottle and he sprayed out like most of the big flame and um, flicked it back onto the fire pit.”[50]

There is then the following passage:

“SCON MAHER:Mmhmm, okay and what happened next?

[I]:Um, that’s all I can really.

SON MAHER:Mmhmm.

[I]:Put together.

SCON MAHER:Okay, tell me about the fire, you said it was a controlled fire.

[I]:Yeah.

SCON MAHER:Tell me about the fire next.

[I]:Um, the fire that came after that?  Um, it was still like little and people are

saying [A] flicked um, picked it up and threw it in the bush um, but I didn’t see

[A] do any of that so I’m really confused on what happened after that but

when me and [A] left it was small…”[51]

  1. [21]
    In her second interview on 11 September 2019, I said she had come back to talk about “some extra stuff I remembered”.[52]  There is then the following exchange:

“SCON MAHER:And tell me about what you’ve come here to talk to me about today.

[I]:Um, last night while I was trying to sleep I remembered um, [A] at one point

said um, let’s start, lets light the bush on fire or something like that and it was

in a joking way but I thought it would be useful um, and at one point she did

kick the crate like across the grassed area.

SCON MAHER:Okay so start at the beginning and tell me everything about um, what you were

doing last night when you remembered.

[I]:Um, we were, ate dinner and then watched a movie and when I was trying to

fall asleep I couldn’t sleep and I kept thinking about it and I remembered um,

at one point when it, we didn’t, we still didn’t realise how serious it was, [A]

saying let’s light the bush on fire and everyone kind of just like brushed it off

like it was a joke and then at one point she did kick the crate –

SCON MAHER:Yep.

[I]:Across the grass.

SCON MAHER:So tell me about when it was that she said, let’s light the bush on fire.

[I]:It was when the crate had been lit and it was, it wasn’t on fire with anything

else and it was just the crate on the fire.

SCON MAHER:Yep. Tell me about how she said it.

[I]:Um, she kinda just stood there and she was like, let’s light the bush on fire and

then everyone kind of just went, [INDISTINCT] and just brushed it off.

SCON MAHER:Ok and then what happened?

[I]:Um, it just she kicked the crate and it went across the grass. It um, it still wasn’t

in the bush but that’s kind of all I remembered from last night I still didn’t,

can’t remember how it got into the bush on fire.

SCON MAHER:Okay so tell me about how she kicked the crate, w–, tell me about where the

crate was and how she kicked it.

[I]:Um, it was next to the fire pit on the grassed area and it had just been flung

out of the fire pit I believe and then she pretty sure she just kicked it and it

kind of just slid across the grass and this is when it wasn’t on fire a lot it was

just like a little bit lit.

SCON MAHER:And what happened then when it slid onto the grass.

[I]:Um, it, it was just the crate was still on fire and a bit of grass was on fire and

then we stomped it out.”[53]

Subsequently and after clarification that it was she, B and A stomping out the burning grass, there is the following:

“SCON MAHER:So um, e –, you’re stomping it out, tell me about what happened next.

[I]:Um, that’s about as all I can remember.

SCON MAHER:Okay and tell me about how then the fire got out of control from there.

[I]:I’m not sure, I can’t remember exactly how it ended up in the bush or catching

light to the bush.

SCON MAHER:And tell me about um, tell me about um, after you say [A] kicked it can you

describe how she kicked it?

[I]:Mm, I’m not sure. I was just remembering this last night she just kinda kicked it

across the grass.

SCON MAHER:Okay.

[I]:Can’t remember like how she kicked it.

SCON MAHER:Do you remember how she kicked it, which foot?

[I]:It would have been her right I think.”[54]

  1. [22]
    Her evidence to the Court is largely characterised by her affirmative and negative answers to leading questions (including, without objection in her evidence-in-chief).  Although, in her evidence-in-chief, she clarified:

“Now, so what was it that you saw [A] do with the crate?Kick it. 

And can you tell us where the crate was, and where she kicked it?The crate was on the grass, and she kicked it towards – back onto the fire.  Yeah.

All right.  So the firepit, what was around the firepit?Dirt and sand, and then grass.

All right.  And so, beyond the dirt and sand there was grass?Yeah.

So when she kicked the crate the crate was on the grass next to the dirt and sand area?Yeah. 

Was the crate in contact with or any other vegetation other than grass?No, just the grass.

And as you said, she kicked it back to the firepit?Yes.

To the dirt and sand area?Yes.

Can you say – can you say how far that was?  In terms – from where she kicked it, to where it ended up?About maybe a metre?

All right.  Did you see any vegetation – not grass – other vegetation on fire at any point?No.”[55]

  1. [23]
    In cross-examination she confirmed that she had told police that when J moved a bigger stick in the fire-pit “it flipped one of the smaller sticks that were already alight onto the grass” and “that fire stopped by [B] spraying it with water, I believe”.[56]  Her recollection was that when this occurred, A said in “mocking tone” of voice, something to the effect of “let’s light the bush on fire” and told J to stop.[57]  She said that when J put the crate on the fire and it got bigger, she and A told him to stop it,[58] and that she did not recall how the crate came to be off the fire.[59]  She thought that she “took a video of the fire when it was in the firepit … before any grass caught alight” but could not remember making any other recording.[60]  Neither did she see B filming any fires in the area.[61]  Although she did confirm that “the crate came off a second time”, she added “I’m not sure how or who by”,[62] and there is then this exchange:

“Do you ever see [B] put that crate back on the fire the second time?No, I don’t remember that happening.

Okay.  Now, you don’t see [J] throw it off that second time?No.

So you see, then, the fire getting bigger?In the firepit?

No, so where – what happens then after – I suppose, after you see [A] kick the crate towards the fire pit?  What happens from there?The crate went back on the fire pit.

And what happens from there?  What’s your memory?I don’t have a lot of memory of what happened after that.  It was just a very panic, and adrenaline, stressful – like, I just remember at one point seeing the crate off the fire pit again   

Yes?    and that’s pretty much all I remember after that.”[63]

She also confirmed that she had not said any words to the effect of “Wow, [A] why did you put it on?” or “do that”.[64]

  1. [24]
    The prosecution also places substantial reliance upon what are contended to be admissions made by the defendant against her own interest.  However and particularly because there is also reliance upon other statements made by the defendant, as lies indicative of her guilty mind or consciousness of guilt, by application of the principles discussed in Edwards v The Queen,[65] it is necessary to outline the relevant responses of the defendant in each of the interviews conducted with her.
  2. [25]
    In the first interview conducted on 10 September 2019, she confirmed that she was then 15 years of age and that she had been dropped at the area of the “rec club”, at Peregian Springs at about 3.40 pm on 9 September 2019, in anticipation of an Oztag game at 6.05 pm that evening. She further confirmed that she and I made arrangements and made contact with and went with J and B into the bushland, where the others smoked cannabis and she was just on her phone.
  3. [26]
    The defendant then described that J used a Bic lighter to make a fire “in the middle with all the sticks on top of each other”.[66] When asked “what happened with that fire” she responded that:

“… it kept getting bigger ‘cause they kept putting more sticks on it. And then they put the crate on it which got even more big and then, but like the crate was just like, it was a li-, on the bottom, like it didn’t, it hadn’t reached the top of the crate, so I just picked up the crate and moved it. And then so, me and [I] just started stomping on the sticks … trying to put it out and … [B] and all us were putting on it from his water bottle.”[67] 

There is then the following passage:

“SCON DUFF:Alright. So, [J] puts it on. What happens to the crate when it gets put on the fire?

[DEFENDANT]:It starts burning all the bottom and me and [I] were so mad by then because it would’ve, it’s getting bigger and obviously, like there’s more orange flames and stuff and then, so I just, I’m like, [J] stop, and put the crate over there it just, we all just started smacking the leaves, well not [J] because he, he found it so funny.

SCON DUFF:Okay. Was anyone taking photos or videoing this at the time?

[DEFENDANT]:Um I’m not sure if [I] was, I’m not sure if she was but.

SCON DUFF:That’s okay. So, what happens when you move the crate?

[DEFENDANT]:I put it on the ground and start um stomping on the sticks and then [B] like, the crate’s getting bigger and bigger, like the flames on the crate’s getting, reaching the top of the crate.

SCON DUFF:Mmhmm.

[DEFENDANT]:And then [B] was like all spraying water and stuff and then um and then by then we were just like, we needed to go and then we went back to Oztag.

SCON DUFF:Okay. So, the fir-, the crate was still on fire when you took it off the, the fire?

[DEFENDANT]:Pardon?

SCON DUFF:The crate itself, you said when it was put on the fire the bottom was burning, the crate - -

[DEFENDANT]:Yep.

SCON DUFF:Was it still burning when you took it off the fire?

[DEFENDANT]:Yeah.

SCON DUFF:Okay, so where did you put the crate?

[DEFENDANT]:I put it like right next to the sticks that were underneath the crate.

SCON DUFF:Okay, and it was still on fire?

[DEFENDANT]:Yep.

SCON DUFF:All right. So whose got the bottle of water?

[DEFENDANT]:AH [B] - -

SCON DUFF:Okay.

[DEFENDANT]:In a blue Nike bottle.

SCON DUFF:Okay, so what was he trying to do?

[DEFENDANT]:Um tryna’ put out the crate.

SCON DUFF:Okay, and was that successful?

[DEFENDANT]:No, it wasn’t real-, Like it was a squirty cap so, not much water was coming out but he just kept trying and trying and trying and nothing was working.

SCON DUFF:Okay. What happened next?

[DEFENDANT]:Um me and [I] we’re ju-, we were just in shock and we just left.

SCON DUFF:Okay so did - -

[DEFENDANT]:I, and I didn’t look back.  I don’t know where the boys went.

SCON DUFF:Alright, did you walk out, did you run out, how did you girls get out of there?

[DEFENDANT]:We ran out.[68]

  1. [27]
    The defendant said that she did have some later contact with B on snapchat. She said:

“I was like, [B] are you okay?  Where are you?  But um he was like, yeah I’m fine.  He was obviously um under the influence so I don’t think he was, like of Cannabis so, I don’t think he was um, it was really processing this.”[69]

She was asked if she spoke to J through social media. There is then the following exchange:

“SCON DUFF:Okay. Um [J], do you speak to him through social media?

[DEFENDANT]:No.

SCON DUFF:Okay, has he contacted you through social media?

[DEFENDANT]:N-, um he has and he was blaming me for it, saying that I lit it … [J] was just saying that I was the one that lit it, I started the fire, but I didn’t even touch the lighter, I didn’t know what was going on, when I put my head up from my phone it was just on fire and I just started yelling.”[70]

Later she said that J said to her through Snapchat:

“That it was my fault and that I lit it, but I didn’t even touch the lighter, I didn’t do anything, I didn’t have any part in it.”[71]

  1. [28]
    She was asked some further questions about her movement of the crate, as follows:

“SCON GILBERT:Okay. Um, so you mentioned before that you’d taken the crate off the fire, is that right?

[DEFENDANT]:Yeah.

SCON GILBERT:Why did you put it right next to the fire?

[DEFENDANT]:Um I, it was just out of reaction I just put it, I just needed, like the sticks were just on the, the floor and I just like it was creating the most fire in my - -

SCON GILBERT:Yep.

[DEFENDANT]:Head, so.

SCON GILBERT:So, tell me how, like what your actions were when you’ve touched the crate?

[DEFENDANT]:Just to put it out of my, my thoughts were to just put it out and stop it.

SCON GILBERT:Yep, so tell me how you’ve grabbed it.

[DEFENDANT]:Grabbed it from the top and p-, put it over there and then we all started stomping.

SCON GILBERT:Yep. Um so the action that you just showed then, was that the extent of what you’d done with the crate?  So, if it was on fire, why was it that easy just to pick it up and - -

[DEFENDANT]:It was on fire on the bottom, like it wasn’t, it didn’t catch fire that quickly, ‘cause [J] put it on, and I was like, [J] stop and um chucked it on the floor next to the fire.

SCON GILBERT:Yep, so the action, the words you just used then sorry was chucked rather than put on the ground, is that right?

[DEFENDANT]:Put, put on the ground yeah.

SCON GILBERT:So when you said chucked, like what does that mean?

[DEFENDANT]:Like just fastly put it on the ground?

SCON GILBERT:So, what happened to the crate when you like chucked it or fastly put it on the ground?

[DEFENDANT]:Um it was just going, it was just getting worse and worse the crate was catching on more fire, yeah.”[72]

Later she was asked why she told J to stop when he started the fire and the defendant responded:

“Because I didn’t want a fire to start and when I was, when I was like a part of it.”[73]

The defendant confirmed that when she and I returned to the Oztag area that they saw H and that it was indicated to them that the fire brigade had been called.  At a later point the defendant, after indicating that no one had told her not to call for help and pausing, then said, “Well J said, don’t tell anyone”[74] as they were running out of the bush. It is then to be noted that in response to a suggestion made by a police officer that J had told them that the defendant had “picked up the milk crate that was still on fire and threw it into the bushland in a different spot”[75], the defendant’s response was “no, that’s not true”.[76]  There is then this passage:

“SCON DUFF:Okay, so the, the milk crate, at any time did you throw the milk crate which was on fire into the bush?

[DEFENDANT]:No.

SCON DUFF:Okay, did you see anyone else do that?

[DEFENDANT]:No, but I put it, put it down on the ground and it, it might’ve rolled or something when I left.

SCON DUFF:Okay, so was the milk crate still on fire when you left?

[DEFENDANT]:Yes.

SCON DUFF:&Alright. Do you have any questions around that?

SCON GILBERT:Um just that you said before that you’ve picked the crate up and that you’ve placed it quickly on the ground and that it didn’t make any other movements - - .

[DEFENDANT]:Yeah and - -.

SCON GILBERT:Why then would it have rolled after you left?

[DEFENDANT]:It might’ve rolled like if it was on fire more and like, or caught some, caught fire on a leaf on the ground, on the ground or on the grass on the ground.”[77]

Again, in response to a suggestion raised with her from the interview conducted with B, in terms that she had replied to him on Snapchat “… saying, I know it was stupid, I shouldn’t have done it, referring to throwing the milk crate on fire into the bush”, the defendant responded, “I didn’t throw it into the bush”.[78]

  1. [29]
    The lies which the prosecution contends are to be found in that last and related assertions and to be used against the defendant to establish her consciousness of guilt of the charged offence, would require that the Court is satisfied of a number of matters.
    1. (a)
      First, that the defendant has told a deliberate untruth. There is a difference between the mere rejection of a person’s account of events and a finding that the person has lied.  In many cases, where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told. The defendant may have been confused, or there may be other reasons which would prevent any finding that she has deliberately told an untruth.
    2. (b)
      Secondly, that the lie is concerned with some circumstance or event connected with the offence. Such use of a lie against the defendant may only occur if there is satisfaction, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it.
    3. (c)
      Thirdly, that the lie was told because the defendant knew that the truth of the matter would implicate her in the commission of the offence and not of some lesser offence or some other wrongful or discreditable conduct. The defendant must be lying because she is conscious that the truth could convict her of the offence in issue. There may be reasons for the lie apart from a realisation of guilt. People sometimes have an innocent explanation for lying.[79] 
  2. [30]
    Clearly, the concern of the prosecution is with a material issue in that it is concerned with a circumstance or event connected with the offence and in revealing some aspect of knowledge of the commencement of the fire, which is the gravamen of that offence.  The deliberate nature of the lies attributed to the defendant are said to be established by the defendant’s own concessions or admissions in her later interview.
  3. [31]
    In her second interview on 11 September 2019, the defendant was interviewed by different police officers.  At an early stage she is confronted with some things said by I. The defendant denied as untrue the suggestion that she had said “lets light the bush on fire”, even in a “joking way … while the crate was on fire”.[80]  There is then the following exchange:

“SCON ANDREJIC:Okay.  All right. Um and she’s stated that when the crate was on fire that um you had kicked the crate onto the grass.

[DEFENDANT]:I chucked it.

SCON ANDREJIC:Okay.

[DEFENDANT]:I did not kick it.

SCON ANDREJIC:So tell me about you chucking the crate.

[DEFENDANT]:Um well I was in shock that the crate was lighting on fire so I chucked it and I missn’t um anticipated how far it would go and then um it landed in the bush.

SCON ANDREJIC:Okay.  And then what happened after that?

[DEFENDANT]:Um the bush caught alight and then we were all pu-, um [B] used his water bottle to try and put it out and it wasn’t working so we realised how serious it was and we ran off to Oztag, me and [I] left to Oztag.

SCON ANDREJIC:Okay. And did you tell that information to police when you spoke to them yesterday?

[DEFENDANT]:Ah no.  I said I um placed it near the fire.”[81]

Then, when she was asked to go back to the very beginning, she said:

“[DEFENDANT]:Okay. So we all went into the bush and they started smoking and sitting around in these four chairs in a circle and they were all. I wasn’t smoking but um the rest of them were and they were all stoned and [J] started lighting, lighting sticks and um bark on fire.  And then um he was making a stick for like making a fire and putting sticks diagonal on top of each other and they caught alight and they were all laughing and saying ah yeah, let’s put the crate on it. So [B] went and got the crate that was in the bush next to us and it was a black milk crate.

SCON ANDREJIC:Mmhmm.

[DEFENDANT]:And he put that over the fire and then that caught alight. And in, in that moment I was so scared and so afraid so I ne-, I kicked off the milk crate. I chucked off the milk crate and um tried to put out the sticks by stomping on ‘em.  And then um I look over and the milk crate is on fire with and the bush is on fire and then we all see that and then [B] just starts putting water on it.

SCON ANDREJIC:Okay.  Al-, alright.  And then what happened right after that?

[DEFENDANT]:Um we were like oh we need to go, we need to go and we can’t put it out and then we all ran.”[82]

She said that she did not recall telling I “It’ll look really sus”[83] to call the fire brigade.  She added:

“I was. I think I was just in shock and I didn’t, I didn’t want to get blamed on ah us because I knew I would, I’m not that close to [J]- - .”[84]

  1. [32]
    After that the defendant described that after J started the fire “it was just a normal fire”[85] and further that after B got the crate out of the bush behind I and it was put on the fire:

“[DEFENDANT]:It caught alight and kept getting bigger and bigger so my first reaction was to get the milk crate off and ah stop the main fire on the bottom.

SCON ANDREJIC:Okay. So tell me why, why did you think you needed to stop that fire there?

[DEFENDANT]:Because I knew that if the um the milk crate was gonna catch alight and it was going to get bigger and bigger and, and um so I just needed to move the milk crate and started stomping on the sticks.”[86]

There is then the following:

“SCON ANDREJIC:Okay. Alright. And what was around the small circle where the fire was?

[DEFENDANT]:Ah all ash and just like a, a flat spot where people had already had, been having previous fires ‘cause it’s a like well-known area to smoke in there.

SCON ANDREJIC:Okay. And do you think that um where the fire was initially, was that a safe place for a fire?

[DEFENDANT]:Um no, well there was all bush around and it would have ended badly if there was a fire in there anywhere.

SCON ANDREJIC:Okay.  So even any, even where this spot was with the dirt, you think that wasn’t a good spot to have a fire?

[DEFENDANT]:No ‘cause the chairs could have caught, caught on fire or all the rubbish and all the rubbish was over, like all the plastic was all over the ground- -.

SCON ANDREJIC:Okay.

[DEFENDANT]:Surrounding it.

SCON ANDREJIC:And tell me, whose idea was it to start a fire in the first place?

[DEFENDANT]:[J].

SCON ANDREJIC:Alright. And tell me, was there any conversation about it?

[DEFENDANT]:Mm I don’t know, I wasn’t really listening, I was just on my phone and I’m guessing that the boys were having conversation to start the fire.

SCON ANDREJIC:Okay.  Alright. And so tell me um why’d you kicked the crate?

[DEFENDANT]:I chucked the crate over there ‘cause I.

SCON ANDREJIC:Oh sorry, throw it.

[DEFENDANT]:Yeah, I threw it over there ‘cause that was, only the bottom was on fire and then the, the sticks were kind of raging, like - -

SCON ANDREJIC:Mmhmm.

[DEFENDANT]:The fire was raging from the bottom. So I needed, I felt like I needed to take part and try and stop it and chuck it outa the way.

SCON ANDREJIC:Okay.  And um so you said there was bush all around.

[DEFENDANT]:Yeah.

SCON ANDREJIC:Okay. so what did you think would happen when you threw the crate?

[DEFENDANT]:I wasn’t really thinking. It didn’t process through my head at the time, I was kind of in shock.

SCON ANDREJIC:Mmhmm.

[DEFENDANT]:Ah yeah.

SCON ANDREJIC:Okay.  So um but what, what in, in at all, what was your, what was your thought process?  Yeah, okay if I throw this crate, what did you think might happen?

[DEFENDANT]:I ju-, I, I just thought move the crate, stomp on the main part of the fire, so try and put that out.

SCON ANDREJIC:Okay. Alright. And um was there, was anything catching alight when the initial fire started?  Anything outside of what was in that kind of area where the fi-, you and, where [J] had made the fire?

[DEFENDANT]:No, just the um milk crate was on fire.

SCON ANDREJIC:Okay.  Alright. So if you had left it there, what would have happened?

[DEFENDANT]:Um I don’t, I don’t know what would have happened.  Um maybe the bush coulda caught on fire or the chair or the rubbish and that would have caught the bush on fire.

SCON ANDREJIC:Okay.  And um do you th-, do you think that from that fire that that could have, that would have likely happened from the initial fire if the crate wasn’t moved?

[DEFENDANT]:Yeah.

SCON ANDREJIC:And um is, is it, so that area, so you said, you’ve described it and there was kind of like an old fire there, do you think the other fires had caused anything like this to happen?

[DEFENDANT]:No.

SCON ANDREJIC:No?  Alright. So why do you think this fire would have been different?

[DEFENDANT]:‘Cause there was a milk crate on there and that could have caused um more flames and could have been worse ‘cause I, the milk crate that was there would have been used as a seat.

SCON ANDREJIC:Oh okay.

[DEFENDANT]:Instead of like to put over a fire.

SCON ANDREJIC:Alight.

[DEFENDANT]:Yeah.

SCON ANDREJIC:Fair enough.  And um now if you didn’t throw the, the crate, would the bush near there have set on fire?

[DEFENDANT]:Possibly, yeah.

SCON ANDREJIC:Possibly but um if you didn’t throw the crate at that stage would it have caught on fire right then and there?

[DEFENDANT]:Um no I don’t think so.

SCON ANDREJIC:Okay.  Alright.  Um how many times did you throw the crate?

[DEFENDANT]:Just once.”[87]

Subsequently, there is the following:

“SCON GRANT:Okay. And then did you move at all or did you just throw it from where you were standing?

[DEFENDANT]:I threw it from where I was standing and then I started stomping on the sticks.

SCON GRANT:Okay. And how far do you think the crate travelled when you threw it?

[DEFENDANT]:Ah I’m, I’m not really sure. I think it just, I just chucked it and I didn’t um anticipate how far it would go.

SCON GRANT:Okay. So do you remember say you know if you could sort of, a metre or was it sort of a fair throw or?

[DEFENDANT]:Um maybe like a m-, yeah, a metre or something, yeah.

SCON GRANT:Okay. Alright.

SCON ANDREJIC:Alright. And um when the, when, so when you’ve moved the crate, okay, and then you try and put this fire out, - -

[DEFENDANT]:Yeah.

SCON ANDREJIC:Did anyone else do anything with the crate after that?

[DEFENDANT]:Um mm no, not.  They just, ah [B] tried to put water on it but it - -

SCON ANDREJIC:Mm.

[DEFENDANT]:Wouldn’t work, yeah.

SCON ANDREJIC:Okay. And did anyone try and take the crate out of the kind of bush area where it was?

[DEFENDANT]:Um yeah, I um, when it was in the bush I picked it back up and put it on the dirt.

SCON ANDREJIC:Mmhmm.

[DEFENDANT]:And then the bush was on, the, the bush was on fire and then we were all stomping on the bush.

SCON ANDREJIC:Okay. Alright. So where would that crate be now?

[DEFENDANT]:Um like where the old fire was.”[88]

  1. [33]
    Finally, it may be noted that the defendant then disagreed with the suggestion that she had thrown the crate “the first time” and that there was initially a fire that was “stomped out” or that there was a second occasion that she had thrown the crate into the bush area[89] and the following exchange is then to be noted:

“SCON ANDREJIC:In relation to it? And just the other thing is um I, I think I’ve kinda already asked you but what, what’s the reason you didn’t tell, you didn’t say that you threw the crate in the first place?

[DEFENDANT]:Um I was, I was kinda of in shock. I didn’t, I’ve never been in trouble by the police before and - -

SCON ANDREJIC:Mmhmm.

[DEFENDANT]:Yeah, it, I kinda didn’t know what really happened, like it didn’t process through my head.”[90]

  1. [34]
    Although ultimately the subject of submission as to the contended unreliability of his evidence,[91] the prosecution also properly called the witness R, who in 2019 was attending the Coolum State High School, in Grade 10. On the other hand, for the defendant, some substantial reliance is placed upon what is established by this witness’s concessions in cross-examination as to what he said in a statement he gave to police on 12 September 2019, as at least providing for reasonable doubt as to her guilt.
  2. [35]
    When R gave evidence on 29 July 2021, he was aged 17 and in employment.  He described that through school, he knew A, B and J and that he was “friends with [J] on Snapchat”.[92]
  3. [36]
    The point of R’s evidence was to address his recollections of viewing a video-recording, made available to him, in the afternoon of 9 September 2019,[93] on the “Snapchat” application, which he accessed when he was at his girlfriend’s place.[94]  As far as he could remember, it was posted as a “story” rather than a message sent to him. This meant that he was alerted to it and it was made available to him by a posting of it, for that purpose, by one of some “couple of hundred” persons he followed on Snapchat, as a “friend”. He did not recall which “friend” had done so.[95] He thought that of the three youths he knew, it was only J that he followed, at the time.[96] He said that he had only viewed the video once and that when he went back, about 20 minutes later, it was deleted.[97]
  4. [37]
    Accordingly, the point of his evidence, given without objection, was as to secondary identification of the contents of that recording.  Initially, the relevance of the evidence was disclosed in his description as to what he had seen:

“It was, like, in the bush, and then I just seen, like, a video of [J] lighting fires.”[98]

And subsequently:

“All right.  Now, well, what did you see in the video?Pretty much just [J] lighting a fire, and then spreading and them stomping it out.

All right.  So where was he – well, firstly, where – could you see where he was lighting the fire?Just in the bush somewhere.

All right, and what he was lighting on fire?Just like a crate or something like that from what I can remember.”[99]

He said that it was apparent that it was someone else recording what J was doing and later also described the filming of some actions of B.[100] When asked as to the length of the recording he viewed, he just said that he “wouldn’t have a clue” but then indicated it “like under a minute or something maybe” and he was not sure and could not remember whether it was continuous or stopped and started.[101]

  1. [38]
    It is to be noted that the attempts of the prosecutor to elicit any more precise detail from R, as to what he had observed, was met by repeated indications of lack of recall and it must be said of demeanour of reluctance to be drawn or commit to elaboration, except as is summarised in the following exchange:

“All right.  How many videos did you see?Just one.

And in that video, you saw – you said you saw [J] lighting the bottom of long grass up to your knee?Yeah.

And then he and [B] stomping it out?Yeah.

So where did you see the crate in the video?Like – I don’t know.  I don’t remember.  It’s been a while.

And when did you see the crate in the video?  Was it before stomping on the grass or after or – or can you recall?I’m – I don’t know, sorry.

Well, while they were stomping – where you could see [J] and [B] stomping on the grass, could you see the crate at that point?I’m not too sure.

All right.  Right.  You said that the video cut out while they were stomping   ?Yeah.

   [J] and [B] were stomping on the grass?Yeah.

Do you recall any fire at the point when the video cut out at anywhere or   ?Yeah, it was just like little bits that they were stomping   

Right?    and that was it.

And when you say little bits, can you say any indication as to what size they were when you say little bits or what you mean by little bits? [indistinct] little patches.  I don’t know.

Did you see anything beyond the gra – did you see anything to indicate where they were?Yeah, just like trees and crap. So I just knew it was in the bush.  That’s it.

Well, where were the trees in relation to the grass? Can you say?Just like all around.”[102]

  1. [39]
    However and for the defendant, it is his evidence given as follows, in cross-examination, which is particularly relied upon.

“MS JUHASZ:  When you provided the statement to police, you prefaced that with, “I am with friends with [J] on Snapchat”?Yep.

And you went on to say, that around 5 pm, you were going through your Snapchat   ?Yep.

   and viewing stories on there?Yeah.

All right.  And you saw a video of [J]?Yep.

This is 5 pm on Monday the 9th of September 2019?Yeah.

And this is the video you’ve described to the prosecutor – so correct me if I’m wrong.  You see [J] lighting long grass on fire?Yeah.

He has a lighter. He goes up to the grass and he lights that grass?Yeah.

Do you see a fire pit in that picture?No.

Then you see there were some dead leaves around there, as well; is that right?Yeah. From what I can remember, yeah.

Do you see them catch fire, as well?Yeah, everything is caught up, because it’s dry.

And you then say you see [J] and another boy stomp that out?Yeah.

Now, at the time you knew [J]?Yeah.

And you knew him from school?Yeah.

So could recognise, definitely, that was [J] you were seeing on this story?Yeah.

And, at the time, he was the only person you were following, out of those four people that I mentioned to you, on Snapchat?Yeah.  From what I can remember. 

It’s, also, possible isn’t, that if you have your phone, you can hand it to somebody else, and that person can take a video on a Snapchat account that belongs to you?Yeah.

Is that right?Yeah.

Okay. Now, you see another boy stomping out the fire with him?Yep.

But at that time you don’t know who that person is.  Do you remember?I don’t know.  I think it might’ve been [B], or someone.

Yes. But   

HIS HONOUR:   The proposition that’s being put to you is that you didn’t recognise him at the time, or did you?I wouldn’t – I don’t know.  I don’t remember.

MS JUHASZ:   So if could just remind you of what you said your statement back on the 12th of September 2019?Yep.

What you said there was:

The other boy stomping the fire out in the video, I later found out was a boy named [B], from my girlfriend [M]?Yep. 

Yes?Yep.

So does that mean that you were watching the video with [M], and she tells you, “Well that – that’s [B]”?I mean – I don’t – I don’t remember, sorry.  I’ve had heaps going on these past few years but   

That’s fine?Yeah.

It’s a long time ago   ?Yeah.

   but I’ll remind you what you said in your statement back on the 12th of September 2019.

HIS HONOUR:   Sorry, did your girlfriend, [M], see the video?Well, I don’t know.  She was, like, next to me at the time, but I don’t know if she’s seen it or not.

Did she, at any point, identify the other boy in the video as being [B]? [indistinct]  I don’t know, sorry.  I’m not well.

You don’t remember?No.

MS JUHASZ:   So if I could remind you   ?Yeah.

   what you told police at that time was:

I was with [M] when I was watching the video.  We were in bed at her house –?Yeah.

and when I saw the other boy in the video, I asked [M] who it was.  [M] told me it was [B]?All right.  Well.  Yeah. 

Does that assist your memory?Yeah.  Well – yeah.

So at that time, you could recognise [J] because you knew him?Yep.

You followed him on Snapchat?Yep.

But you didn’t know who [B] was?No [indistinct]

And [M] had to tell you?Yeah.

Or told you?Yeah.

Okay.  Then you go on to say:

[B] was stomping it out with [J], and that put the fire out from that video?Yeah.

Does that accord with what your memory might be?Yeah. 

Now, you just told the prosecutor, now, you just had a memory of seeing one Snapchat video?Yeah.  That’s all there was.  Just one video.

But the video that’s described – I just described to you, of course, doesn’t involve a crate, does it?I don’t know.

So   ?I don’t – I don’t know.

But you said you, also, had another memory of seeing footage of a crate being on fire?Yeah, from what   

So if I was to suggest to you there was another video in that story, what would you say to that?I’m not so sure.

Okay?I think they were.

Okay. So if I could remind you of what you said back in your statement of the 12th of September 2019.  You went on to say:

I then saw another video on the story.

?Yeah.  Well, then it [indistinct], yeah.

Yes.  Because that, of course, is a statement provided just a couple of days after you saw   ?Yeah.

   this, wasn’t it?  And that’s more likely to be correct?Yeah.  From what I can remember, yeah.

You say there was a bunch of dead leaves and sticks and rubbish around the black milk crate.  Yes?Yeah, that sounds slightly familiar, yeah.

And that you saw [J] light all the leaves and rubbish   ? [indistinct]

   and saw the crate catches fire?Yeah, that sounds familiar.

Now, you go on to say:

I then saw [J] pick up the crate and throw it into dead grass.

Do you remember that?Yeah.  I remember saying that, yeah.

So with watching that video, is it possible you might have tapped on it to move to different video clips within that story?Could’ve, yeah.

Right.  You go on to say:

The fire spread pretty quickly because of the crate.

Do you remember seeing that?Yeah, that sounds, like, familiar.

Continuing:

And I could hear a chick saying something like, “Put it out.  Put it out”.

?Yeah.

But you couldn’t see a girl in that video?Nope.

Then [B] again tried stomping it out;  is that right?Yeah.

And you knew now it was [B] because [M] had told you who that was?Yep.

Continuing:

[J] was also trying to stomp it out in the video, but it got too big, and they run off.

Yes?Yeah.

All right.  With that last bit of that video, was that continuous where you saw the crate being thrown by [J] into dead grass and then the bush catching fire and it getting out of control; do you remember?No, I don’t really remember, no.”[103]

Did the defendant A set fire to the standing vegetation?

  1. [40]
    To prove that the defendant A set fire to the relevant standing vegetation, the prosecution must prove, beyond reasonable doubt, that she caused such vegetation to be set on fire.[104] As the allegation is particularised, it is that she “threw or kicked a crate, which was on fire or burning to some extent, to ‘bush’ or standing vegetation in an area of bushland” and that “[t]his conduct set that ‘bush’ or standing vegetation on fire”.[105]
  2. [41]
    Accordingly and primarily, the prosecution reliance is upon the assertions of the defendant in her second interview on 11 September 2019, that she “chucked the milk crate” and that it “landed in the bush” to set it “on fire” and that this was not able to be put out and then “we all ran”.[106]
  3. [42]
    This, of course, is in the context of the contradiction, thereby, of her account given in the first interview and therefore the potential effect of her deliberately untruthful account of her involvement in movement of the lit crate in the earlier interview, upon the general credibility of her assertions or the weight to be attributed to them.[107] However and except to the extent that it might be appropriate to reason by the application of the principles noted in Edwards,[108] it is not appropriate to reason to the guilt of the defendant merely because she is demonstrated to have so lied.
  4. [43]
    As is so often the case, the prosecution resort to the Edwards principles, is in this instance, an unnecessary distraction. First there is the difficulty of the need to prove the element of wilfulness, in addition to that in respect of it being an act of the defendant which set fire to the standing vegetation. That requires the consideration of a particular legal test as to the state of mind of the defendant at the time of her act. Whilst it is recognised that in some instances the relevant circumstances might allow a conclusion as to a consciousness or realisation of a particular accompanying state of mind, as well as of the act constituting an offence,[109] often that is not possible or, at least, difficult.[110]
  5. [44]
    In this case and whilst it may be concluded that by the assertions of the defendant in the later interview, her deliberate lies in the earlier interview are established, as to an obviously material issue, it is the reliance upon the later admission of the particularised conduct of the defendant which is the relevant consideration. There is nothing to be gained or added, except as necessary context to the consideration of those later assertions, by any reasoning based upon what may then be disclosed as to any earlier consciousness or realisation that she had been responsible for setting the standing vegetation on fire.
  6. [45]
    There may also be difficulty, in recognition of the need to consider any potential innocent explanation for such lying, such as her purported explanation that she was earlier in shock and “kinda didn’t know what really happened, like it didn’t process through my head.”[111] However, it is unnecessary to dwell on this because the critical question in terms of the prosecution reliance on her subsequent assertions as to her act of “chucking” the crate being the direct cause of the surrounding standing vegetation being set alight and getting out of control, is as to whether such assertion is to be accepted as true and therefore to be relied upon in finding that it was this act of the defendant which set fire to that standing vegetation.
  7. [46]
    In the first instance and in contrast to what may be made of the more self-serving assertions by the defendant in her interviews, the extent to which there is in these assertions, effectively such substantial admissions against the defendant’s interests, may be telling as to the truthfulness of what is asserted. This is particularly because of the context of the departure from her earlier non-incriminatory assertions as to her handling of the crate and the inherent understanding of the importance of this issue to the matter under police investigation.
  8. [47]
    The same may not necessarily be said in respect of the defendant’s assertion that she only threw the crate once, which is an important consideration in the submissions made for the defendant as to whether it should be found that it was the defendant’s act which set fire to the standing vegetation, in the context of the weight sought to be attributed to the concessions made by R, in cross-examination. The essence of those submissions is in the following contentions:

“24.The Crown rely on the second throwing of the crate as the act that set fire to vegetation. There are significant difficulties in accepting a version of events whereby [A] threw the crate into the bush a second time which set the bush or standing vegetation on fire consistent with the Crown particulars. Firstly, she denied having done so and no person saw the act occurring so the Court must proceed on circumstantial evidence in order to draw an inference that she was the person who removed the crate the second time. The Crown urge the court to accept that because she removed the crate on the first occasion (albeit in her view, to prevent the increase of the fire within the pit) and the crate ended up in a similar position, the only possible inference open is that she threw a second time and as a consequence, committed the offence. [B]’s recollection of hearing a female voice stating, “wow [A], why did you put it back on” is inconsistent with a person removing something from the fire rather than placing it “back on” and is problematic because [A] denies that she ever said those words.

  1. However, it is submitted that once the evidence of [R] is considered the Crown cannot prove their case beyond reasonable doubt. [R] had no connection to the incidents and at the relevant time he provided his statement he was not aware of what had taken place, or been privy to any information involving the burning of the black milk crate or understood its significance. He provides direct evidence of having seen footage of [J] throwing a lit milk crate into the bush, the fire setting fire to the vegetation and [J] and [B] failing in their efforts to put it out and running away. This chronology of events only occurs at the conclusion of the group being in the bushland. This is supported by circumstances where [A] herself makes an admission to chucking the crate on one occasion but denies she did so a second time and no witness saw who throw it twice. To draw the inference that [A] threw the crate the second time cannot be done when there is direct evidence from [R] of having viewed footage consistent with [A]’s innocence.”
  1. On that basis alone, the Court, acting as the tribunal of fact, cannot find beyond reasonable doubt, that it was [A] who “threw or kicked a crate which was on fire or burning to some extent into bush or standing vegetation in an area of bushland which set the bush or standing vegetation on fire”. The evidence of [B] was only leaves caught fire by the initial throwing of the crate, and it was stomped out in full. [I]’s evidence supports this.
  1. It is true that [A] makes admissions to throwing the crate and believes that although she returned the crate to the fire pit, the next thing that happened was “the bush was on fire”. It is submitted that [A] did not see a person throwing the crate a second time and, as a result, believed the bush caught fire from her act. However, looking at the evidence of [R], in the context of both [B] and [I] stating that they stomped out that initial fire, a continuation of the fire from the first throwing of the crate cannot be sustained.”[112]

And by way of conclusion, it is contended:

“30.The Crown have significant problems with respect to proving their case beyond reasonable doubt when one is presented with the evidence of [R], that [A] only admits to removing the crate once from the fire and that neither [B] nor [I] see who removes the crate “the second time”. [B] and [I] state they did not remove it. [J] did not give evidence but the Snapchat video seen by [R] clearly depicted [J] removing the crate by throwing it causing the bushland to catch alight. Factually, that should be the end of the matter and [A] be acquitted.”[113]

  1. [48]
    In short, the contention is that the defendant’s assertions prove no more than that she, as the other witnesses at the scene say she did, threw the burning crate into the standing vegetation the first time and with any fire in the standing vegetation then extinguished, before it was then relevantly set on fire when the crate was thrown into that vegetation on a second occasion, with an inability of the prosecution to prove, circumstantially, that it was the defendant who secondly did that, particularly in excluding the hypothesis that it was J, who did so.
  2. [49]
    There are a number of difficulties in these submissions and the contended conclusion:
  1. (a)
    First, the determination of this element does not, upon the prosecution case, depend upon the drawing of any inference from circumstantial evidence. Rather and as already noted, the critical question is as to whether what is relied upon as the defendant’s admission as to the act which set the standing vegetation on fire, is to be accepted and relied upon as true. In that regard, it is necessary to understand that the prosecution reliance is upon the defendant’s assertions not just that she “chucked” the crate so that it “landed in the bush” but also that the “bush caught alight” and that they could not “put it out and then we all ran”.
  2. (b)
    Secondly and in the context of the direct evidence of B and I, the prosecution case is that what the defendant admits to doing must be the second such act of removal of the lit or burning crate from the firepit and therefore, that the defendant’s assertion that she only did so once, is to be rejected, as should any reliance upon the defendant’s more self-serving assertion that “she returned the crate to the fire pit” (so that it would be expected to be later found there), as not consistent with the admissions made in Exhibit 9;[114]
  3. (c)
    Thirdly, it is necessary to evaluate the evidence of R, having regard to all of the evidence and what is made as to the prosecution contention as to the defendant’s critical admission; and
  4. (d)
    Fourthly, and bearing in mind that there is no onus on the defendant to prove anything and that ultimately the question will be as to whether the evidence leaves any reasonable doubt as to her guilt, the rationalisation of the evidence contended in paragraph [27] of the extracted submissions is problematic, in that the contentions in both the first and particularly the second sentences, are lacking in any direct evidential support.
  1. [50]
    Contrary to the defence thesis, the critical assertions of the defendant are not expressed in any sense of equivocation as to what occurred or, more particularly, as to the direct temporal and causative relationship to the lighting of the standing vegetation, which then got out of control. Further and not only is it embraced in the contentions which are made, but and despite the noted limitations of the evidence of each of B and particularly I, the common ground in their evidence, which should be accepted, is that there were two instances when the burning crate was cast into the standing vegetation, the first time observed to be by the defendant, with any burning vegetation being extinguished, before the crate again found its way into the standing vegetation, with the consequence that the vegetation was set alight and was not able to be extinguished or controlled.
  2. [51]
    The resolution of the question as to who caused that crate to be again in that vegetation, with the noted consequences, is not to be determined by any inference drawn from the circumstances. And it may be noted that given the degree of imprecision as to who said anything and when and what was said in reference to the defendant’s name, it would be inappropriate to place any weight upon any such assertion, or to further examine any legal basis for doing so. 
  3. [52]
    It is necessarily the case that the admitted untruthfulness of the defendant in her first interview, as to the obviously critical aspect of the matter under investigation, casts a substantial pall over the credibility of her later assertions in the second interview and particularly where there is a self-serving aspect to them. However and as has been noted, the significance of what the prosecution contend to be the critical assertions against interest, logically tends to indicate that they should be regarded as truthful admission of the relevantly particularised conduct of setting fire to the standing vegetation. Such a conclusion would also lead inexorably to the rejection of the defendant’s assertions that she had only done so once and that she had then put the crate back near or on the firepit. However, such conclusions may not be reached, to the requisite standard, without consideration of the evidence of R.
  4. [53]
    It is accepted, as contended for the prosecution, that R did not present, in this Court, as an inherently reliable witness, neither as to his demeanour, nor in his often reluctant responses to questioning.
  5. [54]
    However, it must be born in mind that the critical issue here, in respect of the evidence of R, is not as to any preparedness to accept and act upon it, in any positive way in proof of the allegation against the defendant, but is rather, whether there is any aspect of his evidence which would, in the context of all of the evidence, leave any reasonable doubt as to that allegation.[115]  Some inherent problems with his evidence which influence that assessment, are:
    1. (a)
      his apparent unwillingness to be drawn upon the matter, when questioned by the prosecutor, but which did include him asserting inconsistently to any other evidence, observing J using a lighter to set knee-high dead grass alight, which was then stomped out;[116]
    2. (b)
      his inability to describe the length of the recording and whether it was in a continuous format or not;[117]
    3. (c)
      that in his evidence-in-chief, he did say that there “was a crate that got lit on fire, but I’m not too sure who did it”[118] but when pressed for detail as to what he saw in respect of the crate, he maintained that he saw the grass “be lit on fire”,[119] but also added “I only just seen it get lit on fire, but then when I was texting [J], he said that he threw it into a bush”;[120] and
    4. (d)
      the consequent degree of vagueness or lack of certainty in his evidence, as to what R saw in recorded form on 9 September 2019.
  6. [55]
    In respect of what is then elicited from him in cross-examination, as to the contents of his statement given on 12 September 2019, it is pointed out for the prosecution that R was not specifically asked if that account was true, which although not referenced to it, might be taken to seek to engage the discussion in R v Collins.[121]  However, in Collins,[122] it was not considered necessary that there be direct confirmation that the earlier inconsistent statement was true, in circumstances where the witness effectively agreed that when the earlier statement was made her “memory was better” and then confirmed that “when [she made that statement], that was the best recollection [she] could give to the court”. Here, R did confirm that his statement was provided just a couple of days after what he saw and there was the following exchange:

“Yes. Because that, of course, is a statement provided just a couple of days after you saw   ?Yeah.

   this, wasn’t it?  And that’s more likely to be correct?Yeah.  From what I can remember, yeah.”[123]

Arguably that may fall short of what was considered sufficient in Collins, but even if this might be taken as some implicit acknowledgement of the truth of those assertions in his statement, the uncertainty about whatever it was that he saw, in recorded form on 9 September 2019, remained in his ultimate inability to confirm the connection of what he saw in terms of J’s actions with the crate, to “the bush catching fire and it getting out of control”.

  1. [56]
    In the circumstances, not only would there be particular difficulty in seeking to accept and act upon R’s evidence, neither may it be seen as sufficiently detracting from what should be accepted as the truthful admission of the defendant that it was her act of throwing the crate into the bush which set it alight, such that attempts to then put it out failed. That conclusion may be seen as being entirely consistent with all of the other evidence and in the circumstances, the uncertainties about what R may have seen in recorded form on 9 September 2019 do not create any reasonable doubt about the acceptance of the truthfulness of what is so explicitly admitted by the defendant.
  2. [57]
    Accordingly, it is to be concluded that the prosecution has proven beyond reasonable doubt that it was the defendant, by her act of throwing the lit crate into the standing vegetation, who set fire to it, on the second occasion when she so threw that crate from the firepit into the surrounding standing vegetation.

Did the defendant act wilfully?

  1. [58]
    As has been noted, the allegation made here, pursuant to s 463(c) of the Criminal Code, replicates the elements of s 461, except that it must be a thing in the nature of “standing trees, saplings, or shrubs” or “standing vegetation” rather than any of the things described in s 461(1)(a) to (d), to which fire must be wilfully and unlawfully set.
  2. [59]
    Accordingly and adapting the draft to be found in the Supreme and District Courts Criminal Directions Benchbook at No 104.1, in respect of s 461, to prove such wilfulness, the prosecution must prove, beyond reasonable doubt, that the defendant either had an actual intention to set fire to the standing vegetation or, as is more particularly in issue here, “deliberately did an act aware at the time she did it that the [standing vegetation] catching fire was a likely consequence of her act and that she did the act regardless of the risk”.
  3. [60]
    That direction is derived from the decisions in R v Lockwood; ex parte Attorney-General[124] and T v R.[125]  It differs in form to the draft dealing with the same element of wilfulness in s 462 of the Criminal Code.  However, that direction is to be given in the context of a different element as to the act causative of the relevant fire. That is because s 462 is not directed at proof of directly setting fire to the relevant property but rather setting fire to some other “thing situated so that a building or other thing was likely to catch fire from it.”  As influenced by the decision in R v Webb, ex-parte Attorney-General,[126] in determination that the element of wilfulness applied to the prospect of such building or other relevant thing catching fire and rather than being applicable to the act of setting fire to the original object, that draft direction is in terms that:

“When [he or she] set fire to the thing [he or she] intended that the [building or other thing] would catch fire; or, alternatively [he or she] deliberately lit the thing, realising that it was likely that the [building or other thing] would catch fire and acting in reckless disregard of that risk”.[127]

  1. [61]
    In each instance, the element of wilfulness is concerned with the subjective state of mind of the defendant, as to the relevant likely consequence of his or her act.  In the first instance that element may be proven as the intention of the defendant. Here, the prosecution does not pursue such a contention, on the available evidence, including in recognition of the difficulties in temporal connection of any statement of the defendant incorporating words such as “let’s light the bush on fire” and the apparent context and sardonic nature of any such comment in response to some act of J in lighting the campfire.
  2. [62]
    As to the reliance upon the alternative of reckless action and whether expressed in terms of awareness or realisation of outcome, the concern is with mental consciousness of the potential outcome of the relevant act at the time of that act.
  3. [63]
    The basis of the identified direction or requirement for proof of the wilfulness element, may be traced to the decision in Lockwood.[128] At issue in that reference to the Court of Criminal Appeal, was the meaning of the word “wilfully” in s 469 of the Criminal Code. More particularly, the question was whether, upon the authority of an earlier decision in R v Burnell,[129] proof of intention as to result and nothing less, was required. This proposition was rejected as incorrect by all five judges constituting the Court. For present purposes it is only necessary to note the following aspects of the judgment of Lucas ACJ;[130]
  1. (a)
    Notwithstanding that Burnell was a decision in respect of an offence of arson pursuant to s 461, it proceeded upon the premise that the word “wilfully” had the same meaning where it appears in the same chapter of the Criminal Code;[131]
  2. (b)
    That meaning must be more than “voluntarily” or being “of one’s own free will; of one’s own accord” and therefore beyond what may be required to exclude the operation of what is now s 23(1)(a) of the Criminal Code;[132] and
  3. (c)
    To invoke intention in an extended sense: “to include a result not positively desired but foreseen as a likely consequence of the relevant act”.[133] And therefore the conclusion was, in respect of the factual circumstances in that case:

“ … that it was enough under this section for the Crown to prove that the accused when he kicked at the door, was then aware that damage to the door was likely to result and yet reckless of the risk, he kicked the door.”[134]

  1. [64]
    In R v T,[135] a case concerned with s 461 of the Criminal Code, Fitzgerald P, noted the endorsement of the Court, in R v Webb, ex parte Attorney- General,[136] for a consistent approach to the word wilfully where it appears in the chapter of the Criminal Code which includes the offences proscribed in ss 461, 462, 463 and 469. And as described by Macrossan CJ (with whom Lee J agreed) to be:

“… understood as meaning to refer to either an intended consequence or a consequence which is in mind as likely but is recklessly ignored.”[137]

Or as noted to be expressed by Thomas J in Webb;[138]

“The court [in Lockwood] authoritatively defined the meaning of the word ‘wilfully’ as applying not only to an act causing intended consequences but also to a deliberate (willed) act by an accused aware at the time he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of the risk (at 212, 217, 218, 222).”[139]

  1. [65]
    The decision in R v T, then proceeds to more particularly consider some aspects of the intersection of this element with the provisions of s 23 of the Criminal Code and the concept of intent or intention,[140] and upon the adoption of the meaning determined in the earlier decisions, of the requirement in proof of recklessness in reference to the likelihood of the foreseen consequence of action and the extent of such likelihood:
  1. (a)
    Fitzgerald P concluded:

Despite the suggestion by Gibbs C.J. in Boughey that Crabbe might appropriately be reconsidered in the light of Hancock, Australian authority does not presently support a conclusion that, for the purposes of Chapter 46 of the Code, an unlawful act is done wilfully only if “… the probability of the [damage or fire] taken to have been foreseen must be little short of overwhelming …”: cf. Marshall. On the other hand, neither a ‘bare” nor a “real and substantial” possibility of damage or fire is sufficient: cf. Boughey. Crabbe and Royall, taken together, indicate in my opinion that the conjunction of likelihood and recklessness in the test of wilfulness stated by the Court of Criminal Appeal in Lockwood is only satisfied if the damage or fire which results from an act is foreseen as more probable than not, and indeed as so probable (or likely) that the act is properly described as reckless in circumstances in which recklessness must be such as to attract criminal responsibility for a serious offence. The requirement of criminal recklessness in connection with the act influences the degree of probability of the resulting damage or fire which must be foreseen.”[141]

  1. (b)
    Pincus JA concluded;

“A question arises as to the meaning of the word “likely” in the Lockwood rule; it is capable of meaning “more probable than not”, but I doubt if it was used in that sense by the judges who decided Lockwood. The problem was only briefly touched on in argument, and I am inclined to the view that it is unnecessary to reach a conclusion about it in this case. I will confine myself to some tentative observations.

The ordinary use of the word “likely” in such context conveys “the notion of a substantial — a ‘real and not remote’ — chance regardless of whether it is more or less than 50 per cent”: Boughey (1986) 161 C.L.R. 10 at 21. It is true that the word “wilfully” in the expression with which we are concerned, “wilfully … sets fire to …”, ordinarily has a meaning which excludes mere negligence and includes only acts positively intended to set fire to one of the things mentioned in s. 461. But since Lockwood, it must be accepted that in Ch. XLVI of the Code the word “wilfully” has a wider scope and covers, as I have said, acts done recklessly by a person who foresees that setting fire to, e.g., a building is likely to be the result.”[142]

  1. (c)
    Mackenzie J first noted the effect of the decision in Lockwood in application to the case at hand, as follows:

“… to prove an offence under s. 469 of wilfully and unlawfully destroying or damaging property, it is not necessary to prove a specific intent to destroy or damage the property. While the element “wilfully” could be proved by the existence of such a intent, it is sufficient to establish that there was a willed act (in the sense contemplated by s. 23) on the part of the offender and that at the time of doing the act the offender was aware that it was a likely consequence of doing the act that the property named in the indictment would be destroyed or damaged, but nevertheless did the act recklessly taking the risk of the destruction or damage occurring. Lockwood overruled an earlier decision in R. v. Burnell [1966] Qd.R. 348. An underlying premise in the judgments in Lockwood is that the word “wilfully” will bear the same meaning in other sections in the same chapter (Ch. 46) of the Criminal Code in which the arson section, s. 461, is included.

The proposition stated above is derived from the judgment of Lucas A.C.J. with whom Matthews and W.B. Campbell JJ. agreed. Douglas J. who had been a member of the Court in Burnell pointed out that because of the terms of the trial judge’s direction in Burnell, the argument proceeded from “quite different premises” from that in Lockwood. Because of the form of the trial judge’s challenged direction and way in which Burnell was therefore argued, discussion of any further meaning than “intentionally” was not germane to the issue in that case. Douglas J. was of the view that had the Court in Burnell been referred to the conceptual discussion of the word “intentional” in Vallance v. The Queen (1961) 108 C.L.R. 56 it would have affected what had been said, especially by Gibbs J. at 355–356. Douglas J. accepted as correct the Crown’s submission that the word “wilfully” required of the Crown “no more proof than that the accused person deliberately did an act aware at the time he did it that the result charged in the indictment was a likely consequence of his act and that he wantonly and recklessly did the act regardless of that risk”. D.M. Campbell J. said that the meaning of “wilfully” was “wide enough to include a brand of recklessness, viz. acting with indifference to the likelihood of a foreseen result occurring”. None of the judgments in Lockwood discussed the meaning of “likely” or “likelihood”. In his decision, the learned trial judge simply repeated the test in Lockwood without further elaboration.”[143]

His Honour concluded:

“There was in my view ample basis to interpret the passages quoted above in the record of interview as a basis for a finding that the disposal of the cigarette into the papers behind the counter was deliberate. Once that finding was made, even allowing for the immature age of the offender, it was almost inevitable that there would be a finding that such disposal occurred recklessly in disregard of the risk of fire that he must have foreseen as a highly probable consequence of flicking the cigarette into the papers. That would be sufficient to dispose of the present appeal because there was an ample basis for finding that the appellant had deliberately and recklessly discarded the cigarette knowing that he had done so in a place where a fire was likely to occur and burn the building. Because the evidence supports a high degree of probability that a fire would occur it is unnecessary for me to discuss the meaning of the word “likely” which was left unresolved in Lockwood and the subsequent Court of Appeal decisions referred to by the President. That issue was not fully argued before us, having been raised in a cursory fashion only in an interchange between counsel for the applicant and the Court early in the submissions.

In the circumstances, I would have preferred to reserve my opinion on the question until an occasion when it arises directly and is fully argued. However, because each of the other members of the Court have referred to the question, I feel obliged to give an indication of what I consider to be the focal issue, as to which I would need to be persuaded. That is that where criminal responsibility depends on the conjunction of foresight that a consequence is likely to occur and the doing of an act deliberately and recklessly after having foreseen the likelihood of the consequence occurring, proof that it was foreseen that the consequence is more probable than not is necessary rather than a lower threshold.”[144]

  1. [66]
    Apart from the unresolved issue as to the precise meaning of incorporation of likelihood in the formulation of the concept of recklessness, it may be seen that the reference to there being a deliberate act is to effect exclusion of the operation of what is now s 23(1)(a) of the Criminal Code and that even if the meaning of “likely” was to be determined as the lower threshold of “a substantial – a ‘real and not remote’ – chance regardless of whether it is more or less than 50 per cent”, such a finding would be sufficient to exclude the operation of what is now s 23(1)(b).
  2. [67]
    Subsequently, in R v Dolley,[145] and where, like this case (for reasons set out below), the necessary state of mind was to be proven inferentially, the Court was concerned with circumstances where an offence of arson of a building was premised upon the use of oxyacetylene equipment to open a safe, in attempting to steal money, after breaking and entering the building and stealing other property. First the following was observed, as to proof of the element of wilfulness.

“In the first part of his summing-up, which was delivered on a Friday afternoon, the Judge rightly drew the attention of the jury to the two aspects of "wilfully", explained in Lockwood [1981] Queensland Reports 209 and 215, that is in the sense that the result following from an act being, as it is put, "positively desired", or where the "doer of an act foresees that the act may lead to damage of the type which actually ensues, but nevertheless recklessly persists in doing the act".

The two aspects comprehend, therefore, a result positively desired, or a result foreseen as a likely consequence. Each possibility involves "a direction of the mind to the consequences of an action" - page 217.

There has not been any subsequent departure from Lockwood. In The Queen v. Webb [1990] 2 Queensland Reports 275, as to the alleged offender's state of mind, Macrossan CJ, with whom Lee J agreed, spoke at page 278 of the consequence, "in mind, as likely, but...recklessly ignored".

Justice Thomas spoke at page 286 of the offender's being "aware at the time" of the doing of the act, of the relevant consequence. Nothing said in the later case of The Queen v. T [1997] 1 Queensland Reports 623, involved departure from that position. Plainly, the relevant awareness must be contemporaneous with the doing of the act, which is wilful in the Lockwood sense.”[146]

Later, it was emphasised that:

“It was indeed necessary for the Crown to establish an actual awareness in the appellant at the time of the cutting, of the relevant likely consequence of his act.

Such an awareness might properly be inferred from relevant circumstances. Counsel for the respondent, before us, rightly submitted that the Crown did not have to establish that the appellant was "thinking" of the relevant risk throughout his use of the equipment. It would, as was submitted, have been sufficient if at some stage when the appellant was preparing to use the equipment, or using it, he became aware of or foresaw the likelihood of a fire, even if he thereafter thought no more about it.”[147]

  1. [68]
    Like the position reached in R v T, it is ultimately not necessary to dwell upon what was left undecided there, as to whether or not the awareness or contemplation of risk in terms of likelihood of consequence requires more than a “real and not remote possibility” (as contended here for the prosecution).[148]
  2. [69]
    It is necessary to note that what is required is proof that the defendant had, at the time of her relevant act, the necessary awareness of the likelihood of the consequence of setting fire to the standing vegetation if the crate was thrown into that standing vegetation. In light of the finding that the relevant act of the defendant was not, as she contended in her second interview. the only time when she threw the crate into the bush and what has been noted as to the credibility of her more self-serving assertions to the police, to the extent that she seeks to explain an unthinking and reactive intervention to the perceived danger of the burning crate on the campfire, those assertions should not be given any particular weight.
  3. [70]
    Whilst the issue should be approached, as contended for the defendant,[149] in reference to observations in Pemble v The Queen,[150] that consideration of the issue demands attention to the circumstances of the defendant including her age and emotional state at the time, there remains evident difficult in logically rationalising her contentions that concerns as to the risk of the campfire, as fuelled by the addition of the crate, spreading to the surrounding vegetation, was the motivation and catalyst for her thoughtlessly throwing the crate so that it ended up in the very standing vegetation which was so put at risk. In short that explanation, in conjunction with the maintenance that she only threw the crate once, has all the hallmarks of an unconvincing attempt to explain away the full implications of her admission that it was indeed her act which uncontrollably set fire to the standing vegetation. But what is notably inherent in that attempt is some sense of acknowledgment of at least the objectively evident risk of just such an eventuality. Neither is there any suggestion or evidence of any intoxication of the defendant at the relevant time.[151]
  4. [71]
    In the circumstances, the proof of the awareness of the defendant of the likely consequence of setting fire to the nearby standing vegetation by throwing the crate into that vegetation and her reckless disregard of that risk, is to be determined by drawing an inference from the relevant circumstances. It is therefore necessary that this inference be the only rational inference that could be drawn from those circumstances[152] and that there is no reasonable hypothesis consistent with innocence.[153]
  5. [72]
    Relevantly and as a starting point, there is the objectively apparent level of risk, at a level of obviousness such to make it a likely, if not clear, prospect of the act of the defendant, on any view as to the meaning of “likely”. As demonstrated in her interviews with the police and the evidence as to her sardonic comment in respect of J’s actions in building the campfire, that realisation was not beyond the capacity of the defendant at the time of her act of throwing the lit or burning crate into or amongst the standing trees, saplings, or shrubs.
  6. [73]
    Moreover and once, as has been found, it is understood that the defendant’s act occurred after an earlier similar act by her, which demonstrably had the effect of setting fire to some of the surrounding vegetation, with immediate reaction  on the part of others to remove the crate and prevent further spread of the fire, and the only distinction being that on the second occasion the fire was not able to be controlled and extinguished, this must have served to reinforce, or make obvious, the clear risk involved in repetition of such conduct. The only rational inference to be drawn is that the defendant must have been aware of the clear or likely risk of the doing so and that she acted regardless of that risk or it may be said, in reckless disregard of that risk.

Verdict

  1. [74]
    Accordingly, the defendant is found guilty of the offence:

That on the ninth day of September 2019 at Peregian Springs in the State of Queensland, she wilfully and unlawfully set fire to standing trees, saplings, or shrubs.

Footnotes

[1] This introduction is in reference to the uncontentious facts in this proceeding, including those admitted in Exhibit 9.

[2] As extracted, verbatim, from Exhibit 9, at [21] and [19] and the image attached per [25].

[3] See heading to s 463, as at the time of the indicted charge.

[4] It may be noted that it was then stated, in open Court, that this occurred upon an understanding that the boy J would be dealt with, subsequently in the Childrens Court constituted by a Magistrate, upon his indicated intended guilty plea to an offence pursuant to s 62 of the Fire and Emergency Services Act 1990, of lighting an unauthorised fire.

[5] MFI F.

[6] Exhibit 9, at [5]-[6].

[7] Without opposition, in each instance, the witness was found to be a special witness pursuant to s 21A(1)(b) of the Evidence Act 1977.

[8] For convenience, in these reasons, reference is made to the transcripts of the recorded interviews with the defendant and the witnesses B and I, but with any necessary correction made as to what is discernible from the relevant recording.

[9] Prosecution written submissions, at [6.3].

[10] MFI I, at p 4.5-41.

[11] MFI I, at pp 8.30-50 and 10.40-11.10.

[12] Ibid, at p 9.45.

[13] Ibid, at p 8.20-30.

[14] Ibid, at p 9.1-30.

[15] Ibid, at p10.30.

[16] Ibid, at pp 11.25 – 12.38.

[17] Ibid, at pp 12.40 – 16.50.

[18] Ibid, at p 17.1-11. See also T 2-45.1-31 for confirmation of what can be discerned from the recording.

[19] Ibid, at p 17.25.

[20] Ibid, at p 17.45.

[21] Ibid, at p 18.10-40.

[22] Ibid, at p 18.47-49.

[23] MFI I, at p 18.50 – 19.17.

[24] Ibid, at p 19.27-28.

[25] Ibid, at p 19.30-40.

[26] Ibid, at p 19.58 – 20.8.

[27] Ibid, at p 20.20-40.

[28] Ibid, at p 23.35-40.

[29] Ibid, at p 24.14-15.

[30] Ibid, at p 24.50-55.

[31] Ibid, at p 27.11-14.

[32] MFI I, at p 27.55 – 28.10.

[33] T 3-24.23-24.

[34] MFI I, at p 28.16-54.

[35] T 3-7.5 – 3-8.16.

[36] T 3-8.15-30.

[37] T 3-9.9-33.

[38] T 3-9.35 – 3.10.1.

[39] T 3-10.3-36.

[40] T 3-14.35-40.

[41] T 3-15.15-35.

[42] T 3-16.37 – 3-17.35.

[43] T 3-17.40 – 3-18.33.

[44] T 3-19.29-43.

[45] T 3-21.1-10.

[46] T 3-21.15 – 3-22.13.

[47] T 3-23.1-18.

[48] T 3-24.37-41.

[49] MFI G, at pp 2.42 – 4.18.

[50] MFI G, at pp 7.33 – 8.8.

[51] Ibid, at p 8.22-41.

[52] MFI H, at p 2.22.

[53] MFI H, at pp 2.41 – 3.40.

[54] MFI H, at p 4.32-55.

[55] T 2-34.23-46.

[56] T 2-36.36-40.

[57] T 2-37.9-46.

[58] T 2-38.34-43.

[59] T 2-39.16.

[60] T 2-36.42 – 2-37.4

[61] T 2-42.46-47.

[62] T 2-39.45-46.

[63] T 2-40.43 – 2-41.11.

[64] T 2-42.38-41.

[65] (1993) 178 CLR 193.                                       

[66] MFI C, at p 18.10-40.

[67] Ibid, at p 18.43 – 19.1.

[68] MFI C, at pp 19.19 – 20.45.

[69] Ibid, at p 21.35-38.

[70] Ibid, at p 23.18-34.

[71] Ibid, at p 24.1-10.

[72] MFI C, at p 26.50 – 27.41.

[73] MFI C, at p 28.41-42.

[74] Ibid, at p 30.17.

[75] Ibid, at p 47-48.

[76] Ibid at p 30.10-50.

[77] Ibid, at p 31.25-52.

[78] MFI C, at p 32.7-11.

[79] Edwards v The Queen (1993) 178 CLR 193, at 211; Zoneff v The Queen (2000) 200 CLR 234, at [17].

[80] MFI D, at p 8.15-30.

[81] Ibid, at pp 8.42 – 9.9.

[82] MFI D, at pp 9.57 – 10.24.

[83] Ibid, at p 10.52.

[84] Ibid, at p 10.56-58.

[85] Ibid, at p 12.15.

[86] Ibid, at p 12.49-59.

[87] MFI D, at p 13.10 – 15.24.

[88] MFI D, at pp 16.16 – 17.6.

[89] Ibid, at pp 17.30 – 18.5.

[90] MFI D, at p 18.43-54.

[91] Prosecution written submissions, at [5.27].

[92] T3-38.10-38.

[93] T3-26.40- 46.

[94] T3-27.5-16.

[95] T3-27.15-27 and T3-28.14 – 3-29.2.

[96] T3-28.14-16 and T3-29.4-20.

[97] T3-36.5-14 and T3-42.44 – 3-43.2.

[98] T3-27.2-3.

[99] T3-29.41 – 3-30.2.

[100] T3-30.4-36 and T3-32.42-44.

[101] T3-33.10-20.

[102] T3-35.6-40.

[103] T3-38.41 – 3-42.37.

[104] See: R v Joinbee [2014] 2 Qd R 69, at [75]-[76] and R v Cormack [2013] QCA 342.

[105] MFI F.

[106] See: paras [31]-[32] above and MFI D, at pp 8.42 – 10.42.

[107] Zoneff v The Queen (2000) 200 CLR 234, at [23].

[108] See para [29] above.

[109] R v Bayden Clay (2016) 258 CLR 308, at [72].

[110] See: R v Wehlow (2001) 122 A Crim R 63, at [5] and [33], R v Mitchell [2008] 2 Qd R 142 and R v Oliver [2016] 2 Qd R 586.

[111] See para [33] above.

[112] Defendant’s written submissions, filed 7/9/21, at [24]-[27].

[113] Ibid, at [30].

[114] Noted above in paragraph [4].

[115] See: R v SDE [2018] QCA 286, at [23]-[34], in reference to principles derived from decisions such as Liberato v The Queen (1985) 159 CLR 507 and De Silva v The Queen (2019) 94 ALJR 100.

[116] T3-32.4-35.

[117] T3-33.10-20. He was later cross-examined, by suggestion that there was more than one video in the story, and he said: “I’m not too sure” (at T3-41.23 – 24).

[118] T3-34.3- 4.

[119] T3-34.5-47.

[120] T3-34.27-28.

[121] [2018] 1 Qd R 364, at [49]-[53].

[122] Ibid, at [59] and [20].

[123] T3-41.35-39.

[124] [1981] Qd R 209, at [216].

[125][1997] 1 Qd R 623, at 665.

[126] [1990] 2 Qd R 275.

[127] Supreme and District Courts Criminal Directions Benchbook, at No 105.1.

[128] [1981] Qd R 209.

[129] [1966] Qd R 348.

[130] With whose reasons both Matthews and WB Campbell JJ expressed agreement.

[131] [1981] Qd R 209, at 208.

[132] Ibid, at 213 and 216.

[133] Ibid, at 216.

[134] Ibid, at 217. Earlier reference was made to a passage drawn from Kenny’s Outlines of Criminal Law in respect of the requirements for proof of “malice” at common law in terms of proof of:

“(1) an actual intention to do the particular kind of harm that in fact was done; or

  1. (2)
    recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of
    harm might be done and yet has gone on to take the risk of it).” per Ibid, at pp 213-214.

[135] [1997] 1 Qd R 623.

[136] [1990] 2 Qd R 275.

[137] [1997] 1 Qd R 623, at 628-629.

[138] [1990] 2 Qd R 275, at 285-286.

[139] [1997] 1 Qd R 623, at 629.

[140] Ibid, at 633-660 and 665.

[141] Ibid, at 660.

[142] [1997] 1 Qd R 623, at 664.

[143] [1997] 1 Qd R 623, at 665.

[144] Ibid, at 667.

[145] [2003] QCA 108.

[146] Ibid, at pp 3-4

[147] [2003] QCA 108, at p 5.

[148] See Prosecution written submissions, at [2.7]; and cf Defendant’s written submissions, at [8].

[149] Defendant’s written submissions, at [7] and [11].

[150] (1971) 124 CLR 107, at 119-120.

[151] Cf: R v Eustance [2009] QCA 28.

[152] Shepherd v The Queen (1990) 170 CLR 573, at 578.

[153] R v Perera [1986] 1 Qd R 211, at 217.

Close

Editorial Notes

  • Published Case Name:

    R v TAJ

  • Shortened Case Name:

    R v TAJ

  • MNC:

    [2021] QCHC 41

  • Court:

    QChC

  • Judge(s):

    Long SC DCJ

  • Date:

    26 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.