R v Williams[2023] QDC 103

DISTRICT COURT OF QUEENSLAND

1. [1]
   At the conclusion of the Crown case, the defence made a no case submission.  The question is whether, on the evidence as it stands, the defendant could lawfully be convicted.  The Prosecution case depends on circumstantial evidence.  To establish the guilt of the defendant beyond reasonable doubt it must exclude any reasonable possibility or hypothesis consistent with innocence.  That does not mean, however, that it must exclude theoretical but entirely unrealistic hypotheses that are merely the product of conjecture or fanciful supposition. 
2. [2]
   Accordingly, I must consider whether, even if all of the evidence for the Prosecution were accepted and all inferences most favourable to its case which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or, to put it another way, could not exclude all hypotheses consistent with innocence as not reasonably open on the evidence. 
3. [3]
   The defendant is charged with wilfully and unlawfully setting fire to a building; namely, a dwelling house at 24 Nudgee Road, Hamilton.  To establish the guilt of the defendant, the Prosecution must prove that the defendant set fire to the house, that the defendant did so wilfully and that the defendant did so unlawfully.  It is admitted that, on the relevant date, there was a fire at the house, and that the owner of the property had not given permission for anyone to set fire to it.  There was no evidence from anyone who saw how the fire started.  As I have already noted, the Prosecution case relies upon circumstantial evidence. 
4. [4]
   The cause of the fire was investigated by a qualified fire investigator.  His unchallenged expert opinions are the subject of admissions.  He was able to determine the area of origin of the fire, being the bathroom that adjoined the hallway on the upper level of the house, but not the ignited material.  As to the cause of the fire, his opinion is that the most plausible cause is human involvement, but he cannot eliminate other possible ignition sources.  Further, since the house, which was approved for demolition and left unoccupied, was not secure and was frequented by squatters, it is probable that the fire was ignited intentionally or accidently by a person or persons who had entered the structure. 
5. [5]
   This unchallenged expert opinion evidence, based upon an investigation of the matter, expressly leaves open, as something which cannot be excluded, a reasonable hypothesis that the fire was not caused by human intervention at all.  That is the Crown’s first difficulty.  It is a hypothesis which is consistent with the innocence of the defendant, and it has a basis in the evidence, being the unchallenged evidence of the fire investigator. 
6. [6]
   Even if that is put to one side and it is assumed that the likely cause of the fire; that is, human intervention, is, in fact, what caused the fire in this case, it does not follow that the defendant is necessarily guilty.  Whilst there is evidence, to which I will turn shortly, that places the defendant at the property on the day in question, at a time proximate to when the fire started, the fire investigator’s report notes that the house was unsecure and was frequented by squatters.  That is consistent with the evidence of the investigating police officer about the state of the premises when he had, at an earlier time, installed a surveillance camera.  In the circumstances, there is a reasonable hypothesis, based on the evidence, and consistent with the defendant’s innocence, that the fire, if started by human intervention, was started by someone else or started accidently rather than wilfully. 
7. [7]
   The circumstantial case which the Crown relies upon, as being one which could lawfully lead a jury to a conclusion of guilt beyond reasonable doubt, excluding the other hypotheses to which I have already referred, essentially relies on two things.  The first is video evidence from a surveillance camera, installed by police at an earlier time, that the defendant was on the grounds of the property proximate to the time the fire was started.  The video, however, only shows him beginning to approach the front stairs and then retreat.  It does not show him, at any time, entering the dwelling either upstairs or below, or otherwise being in any position to have started the fire. 
8. [8]
   The Prosecution’s case is that the mere presence, on the property, of the defendant is sufficient to draw an inference adverse to him, because it says that it gave him an opportunity to commit the offence.  Of course, he would not have had an opportunity unless he could be placed inside the residence in the area identified by the fire expert as the area in which the fire commenced.  However, the Prosecution says that once one is at the property, it is possible to enter the house in a way which avoids detection by the video camera.  This was said to be so via walking around the rear of the house to an adjoining house with which there is some connecting walkway. 
9. [9]
   Of course, there is no evidence which shows the defendant gaining access in that way or taking that journey.  All the evidence does is, as I have recounted; that is, show the defendant beginning to approach the front of the stairs before then retreating.  Since the Prosecution’s case relies upon people being able to access the house and to enter or leave it without detection by the camera, it necessarily follows that if that case is accepted then it must also be accepted that other people could have entered or departed the premises or may have been already inside the premises and later departed, at the time that the defendant was out the front proximate to the time the fire started. 
10. [10]
    And of course, even if the defendant is assumed to have been in the house, that does not necessarily mean that he was alone in the house, given the evidence that the house was unsecure and used by squatters, nor that he was the one who set fire to the house, nor that it is a wilfully rather than accidently lit fire, all of those hypotheses being hypotheses which are consistent with the evidence of the fire investigator. 
11. [11]
    In truth, a reasonable mind could not reach the conclusion, from the video of the defendant approaching the front stairs before retreating, that he was responsible for wilfully setting the house on fire.  The Crown does not rely on that evidence alone, however.  It also relies upon the observations made by police when they apprehended him when he was riding his bicycle some distance remote from the site of the fire.  At that time, he made no admissions, and when informed that he was suspected of being involved in a fire denied that he did such things. 
12. [12]
    The police found him to have a lighter, but that is unsurprising since he was smoker, and he was also found with a pack of cigarettes.  They found him to have some black substance on his hands, but it is admitted that that substance was dirt rather than ash, or anything that would implicate him in the fire. 
13. [13]
    Finally, a search of his backpack located a juice extractor in a box.  The police officer gave evidence that he thought the extractor smelt like smoke.  The Crown seeks to rely upon that evidence as circumstantial evidence that the defendant was at the property at the time of the fire.  There are, of course, a number of difficulties with that proposition.  The first and most obvious is that if the extractor did indeed smell of smoke, and if the smell of smoke was smoke relating to the house fire, it is difficult to see why the officer would only have detected the smell of smoke on an extractor within a box within the defendant’s backpack, and did not smell smoke on the defendant himself, his clothes, his backpack or, indeed, anything else. 
14. [14]
    Further, the officer did not describe the smoke:  whether it was, perhaps, cigarette smoke as opposed to any other type of smoke.  And as counsel for the defendant pointed out, it would seem odd that any smell of smoke would be attributed to the house given the timeline, which suggests that significant smoke was not seen coming from the house until a point in time after the defendant had been seen riding his bicycle away from the scene of the fire. 
15. [15]
    Putting all of those obvious difficulties to one side, however, since, for the purposes of this application, I must take the Crown’s case at its highest and draw all inferences that are reasonably open in its favour, at most, the juice extractor smelling of smoke goes towards, again, placing the defendant at the property at the time in question.  For the reasons I have already given, that is, in the circumstances of this case, a fact which, in itself, could not support a conclusion of guilt beyond reasonable doubt in the mind of a reasonable person, because it could not permit that person to exclude all hypotheses consistent with innocence as not reasonably open on the evidence, even on the basis of accepting all of the Crown’s evidence and drawing all inferences most favourable to the Prosecution. 
16. [16]
    I should have noted, when I was dealing with the video evidence and the hypothesis of other people being in the house, that the evidence from the video shows, as counsel for the defendant pointed out, that whilst the front door is shown as being open in the video, the extent to which is was open at the time that the defendant is shown in the video is different to the extent it was open at another part of the video where the defendant is not shown. 
17. [17]
    For the reasons given, I do not consider that the evidence is such that the jury could lawfully convict.  The no case application is successful.