R v Cooper (No 2)[2020] QDCPR 57

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to section 590AA of the Criminal Code 1899 (Qld) to exclude the following evidence:

   1. (a)
      The evidence of Jennifer Rees.
   2. (b)
      The evidence of reconstruction by Mark Ashford.
   3. (c)
      The evidence of Aiden Di-Ruggiero.
   4. (d)
      Any evidence of the financial state of the Walkerston NewsXpress newsagency.
   5. (e)
      The evidence of Ms Maxwell.
   6. (f)
      The evidence of Mr Splawinski.  
2. [2]
   The defence further applied for a ruling that the crown could not rely on the evidence of Ms Payne and Ms Elkins.

Charge

3. [3]
   The accused is charged with the following count:

“That on 30 July 2018, at Walkerston in the state of Queensland, [the defendant] wilfully and unlawfully set fire to a building.”

4. [4]
   It is alleged by the crown that the defendant set fire to her newsagency as she was in financial distress at the time.

Summary of the crown case

5. [5]
   The crown case against the defendant is said to be a circumstantial one. It relies on three particular circumstances:

   1. (a)
      The fire was deliberately lit.
   2. (b)
      The defendant had the opportunity to light the fire.
   3. (c)
      There was a financial motive to light the fire, namely the defendant’s grim financial situation.    

Evidence

6. [6]
   The depositions have been tendered as exhibit 5.
7. [7]
   The fire occurred on 30 July 2018.

Evidence of the fire

8. [8]
   Brenda Stockden worked at the newsagency. The owners of the newsagency were the defendant and her husband, Bradley Cooper. When she closes up the shop, she counts the float and then puts money into a money bag. Once the final customer has left, the front door is closed; the air conditioner is turned off and she then calculates the point of sale. The money is then placed into a safe which is locked. She then later unlocks the roller door, puts in her passcode for the security alarm, turns off the light, goes out of the roller door and locks it.
9. [9]
   On Monday 30 July 2018, at about 5:50pm, she was home and had been home all day. She heard sirens coming from the main street of Walkerston. She was told there was smoke coming from the newsagency. She went with a friend to the newsagency and saw smoke coming out of it. She rang the defendant and told her what was happening. The defendant was on her way to the newsagency. The newsagency had been on the market for years. She had talked with the defendant about a year prior as to whether there had been any offers and the defendant said she was not going to give the business away and she would stay for another 10 years if she had to.
10. [10]
    Bradley Cooper, the defendant’s husband, states that he and the defendant purchased the NewsXpress newsagency at Walkerston Shopping Village in 2007. They purchased the shop for about $400,000 plus stock. The business is in the name of the Cooper Family Trust. The business is always insured for a sum of about $700,000. He describes the pen racks in the shop. Behind the pen racks are two rubbish bins which were emptied at about 8:30am on 30 July 2018.  There are CCTV  cameras in the shop and to his knowledge they were working but he was informed by the defendant that morning that she had turned the system off about a month prior  because of a beeping noise coming from them which annoyed her. The shop has a security system which is activated by using a keypad at the roller door. The defendant, Brenda Stockden and he all have pins to activate this system. Only the defendant, Brenda and he have access to the shop. On 30 July 2018, Mr Cooper worked at the shop from 7am to 2pm. He then went home. The defendant was working at the shop all day and she closed the shop. Ms Stockden did not work there that day. He recalled the defendant coming home at about 6pm. He heard her scream out and she said that Brenda had just called and said the shopping centre was on fire. The defendant and their son Travis drove to the shop. Mr Cooper later arrived and saw fire engines everywhere. Overall, he said that the business was holding its own financially and they make a profit each month but he did not know how much exactly because the defendant handles all the finances.
11. [11]
    Timothy Doolan, in a statement dated 5 September 2018, says that he works at the Walkerston Country Meats located in the shopping centre. He was aware that three people work at the newsagency. He recalls speaking with Brenda Stockden when the newsagency first went onto the market many years prior and she said the shop was doing pretty poorly. On 30 July 2018, he was in the process of closing the shop and he recalled a flash from the newsagency caught his attention. He looked over and saw a flame which went away. He called 000. The time was 5:50pm. While he was on the phone more flames developed in the newsagency. The owner of the pizza shop, Pete, pulled on the doors of the front entrance but they were locked. One of the firefighters forced entry to the shop by smashing the glass with a crowbar.
12. [12]
    Darren Boswell, in a statement dated 8 October 2018, states that he worked at the Duke Hotel located on the Peak Downs Highway, Walkerston. At about 5:30pm, he heard an alarm coming from the Walkerston Shopping Centre. He approached the newsagency and saw the back door was down. He saw black smoke inside the newsagency. He called 000. He didn’t recall seeing anyone acting suspiciously.
13. [13]
    James McWhinney, in a statement dated 3 October 2018, states that he worked at the Walkerston Bottle Shop. At about 5:30pm, the manager of the Duke Hotel ran to his shop and told him there was smoke coming from the newsagency. Later, he saw the defendant of the newsagency who didn’t seem too upset and seemed very calm. He didn’t recall seeing anyone acting suspiciously around the shopping centre before the fire.
14. [14]
    Natasha James has provided a statement dated 2 October 2018. She was employed by the Social Café located at the Walkerston Shopping Centre. She walked out of the shop at about 4:30pm and walked home. At 6:02pm, her aunty Brenda Stockden called her and told her there was a fire at the newsagency. She drove back to Walkerston arriving there at 6:30pm.
15. [15]
    Alison Smith, a scenes of crime officer, has provided a statement dated 25 October 2018. She conducted a forensic examination of the fire damaged business in order to determine the origin and cause of the fire. During her examination, she was advised that the double glass doors which allowed access to the business were closed upon the Fire Officers’ arrival. A personal access roller door was closed on her arrival. She was also advised that was locked upon the arrival of the fire service. She says that direct fire damage within the newsagency was predominately contained to the northern end of the service counter. There were two metal racks which she was advised contained pens. The metal pen rack closest to the counter had buckled near the base causing the metal pen rack to bend forward and land on the magazine display shelf. She located several butane canisters on the floor.^[1] A further canister was located near the bin area behind the metal pen rack. Based on her examination, she has eliminated all reasonable natural causes and an electrical cause of the fire was unlikely. She was of the opinion the fire was caused by either accidental or deliberate human involvement.
16. [16]
    I have seen the photographs which show:

    1. (a)
       A butane canister located under a paper rack to the north of the metal pen racks.^[2]
    2. (b)
       Butane canisters located on the eastern wall shelving.^[3]
    3. (c)
       Butane canister lid inside the front doors.^[4]
17. [17]
    Fire officer, Darryl Dhu, in a statement dated 25 July 2019, says that on 30 July 2018 he was on route to the fire station in his vehicle at about 5:50pm. His pager went off. He drove past the Walkerston Newsagency and saw light grey smoke coming from the eaves of the building and a few people milling about the quadrangle in the front of the shop area. He dropped off his son with his wife and proceeded to the fire station. A crew was already dressed. He dressed and they arrived at the newsagency just prior to 6pm. There was no broken glass or immediate signs of forced entry to the newsagency. Ultimately, glass was broken to gain entry. During the investigation, when he returned the next day at 10am, he met Mark Ashford, a fire investigator. He observed a butane canister scattered throughout the newsagency.
18. [18]
    Robert Dumma, a fire officer, says that on 30 July 2018 just before 6pm, phones and pagers started going off. They went to the shopping centre and saw black smoke coming out of the newsagency. The front door was smashed and they entered the newsagency. The heat was very intense.
19. [19]
    Kari Galea, in a statement dated 29 July 2019, another fellow officer, was part of the first attendance crew. He confirms he could see no signs of forced entry when he arrived.

Expert evidence

20. [20]
    Zenon Splawinski has provided a statement dated 30 April 2020. He is employed as an inspector scientific officer with the Queensland Fire Service. He was asked by Inspector Mark Ashford as regards  the details of butane canisters. He gives details of their properties.
21. [21]
    Mark Ashford, the fire investigator with the Queensland Fire Services, provided a statement dated 3 October 2018. He conducted a fire investigation of the newsagency. He attended the newsagency on 31 July 2018. He opines that the area of origin of the fire was towards the north east corner of the newsagency where there were two metal display racks. His information was that the defendant was the last to leave the store at 17:40 hours. She put rubbish into a waste bin with an extinguished tea light candle. The 000 call was received 17:49 hours.  Queensland Fire Service arrived at 17:56 hours and contained the fire to the area of origin. The location and intensity of the fire indicated that the fire developed within the structure towards the north west corner of the shopping centre where the newsagency is located.  At paragraph 5.1 he opines that the fire initially developed in the newsagency at the bottom shelf of a metal pen display cabinet located at the northern end of the main counter. A mobile heat source was used by a person to ignite the contents of  butane gas containers that were sprayed out on to the area where the paint pens were located. The fire patterns displayed in and around the rental pen display cabinet are consistent with this location as the area of origin. Three x lite select butane canisters were found behind the main counter. They were possibly used as an accelerant to increase fire development.  The person did not make forcible entry into the premises. Mr Ashford was able to rule out any electrical fault or the involvement of the candle and the waste bin.
22. [22]
    At paragraph 3 of his statement, Mr Ashford says that on 17 August 2018 he attended the QFRS live fire campus and conducted a number of live fire burns which were videoed. In para 12 of his report he states that:

    1. (a)
       The first test simulated the 12 butane canisters on the shelf at or about 1600mm from the floor and about 200mm apart from shelf to shelf in an open shed. A lounge chair was about 1m from the shelves. Heat release from the chair increased the internal pressure in the canisters where they vented through a hole. Two caps were displaced and two remained in position. The heat release rate from the chair was greater than would have been in the newsagency and yet none of them projected out of the shelf. A full canister of butane when exposed to heat would not become a projected object and would not come to rest 3m away from the original location.
    2. (b)
       The second test simulated the 12 canisters on a shelf about 1600mm from the floor about 200mm apart in a shipping container about 2.1m high. Again this showed the canisters did not become projectiles.
    3. (c)
       The third test was an attempt to remove the blue caps off the canisters by multi grips and a shifter etc. When the top was removed an explosion occurred with the liquid vaporising immediately.
    4. (d)
       The fourth test showed how human involvement could remove the contents of a canister. The top metal spike was depressed with a finger nail and the contents sprayed onto newspaper. The liquid could then be ignited with a blow torch. The canisters found on the western side of the main counter were sprayed like this.
    5. (e)
       The fifth test simulated direct heat exposure to a full butane canister after sprayed with a finger nail. The canister vented through a hole in the top. It did not project from its original location.
23. [23]
    In Mr Ashford’s opinion these tests indicated the canisters displayed on the magazine rack on the western side of the metal pen display case and the single canister found on the floor near the area of origin were used to spray liquid onto the pen display cabinet to accelerate fire development. The empty canisters did not project from the shelf behind the main counter.
24. [24]
    In an addendum statement dated 29 April 2020, Mr Ashford stated that the purpose of the tests was to try to understand how the butane canisters were located away from their original location. The tests revealed the canister did not move when exposed to heat and could not possibly move from the shelf and project 1.5m from their original location. 
25. [25]
    I viewed the test videos, marked exhibit 8.
26. [26]
    Mr Ashford gave evidence that he was concerned with whether or not the fire was an accidental one or deliberate.^[5] He was concerned with finding the area of origin.^[6] He concluded the point of origin was in front of the pen display adjacent to the counter.^[7] He referred to exhibit 7 (a photograph of the pen counter) which he said showed a V shaped mark which supported his conclusions.^[8] The seat of the fire was at the bottom of the rack itself.^[9] He agreed he is not a scientific officer and does not have any particular expertise with butane.^[10] He agreed the form of the ignition (heat source) was unidentified.^[11] He agreed it was his opinion that a mobile heat source was used by someone to ignite the contents of the butane canisters which were sprayed onto the bottom of the shelf.^[12] This was determined after testing was conducted and his observations.^[13] He concluded that no forcible entry was made and someone may possibly have used the three x lite butane canisters located behind the counter to spray onto the area to accelerate the fire.^[14] This was based substantially on the presence of the butane canisters.^[15]
27. [27]
    He ruled out the involvement of the candle described by the defendant. This is because it was placed in the bin at about 5pm and was cold to touch.^[16]
28. [28]
    From his observations, he believed the butane canisters were used.^[17] The light at the top of the rack was not connected at the time. The fire was not caused by an electrical fault.^[18]
29. [29]
    As to the tests conducted on 17 August 2018, the purpose was to explain how the butane canisters got to where they were in the newsagency.^[19] He agreed that he didn’t attempt to replicate the rack in an enclosed space.^[20]  In essence he exposed them to heat to see if they “flew” in a different direction.^[21] He rejected the possibility that fire hoses moved at the canisters after he spoke to the fire officers who told him they did not use the fire hoses in that area.^[22] The canisters were located about 1 ½ metres away from the display racks.^[23]       
30. [30]
    Lucile Maxwell, a forensic scientist employed by the Queensland Police Service, has analysed three items.^[24] Items 790612811 was found to contain light petroleum distillate class ignitable liquid residues. Two other items did not contain residues but she gives five possible explanations for this.
31. [31]
    In evidence, Ms Maxwell confirmed that she examined three samples. 790612811 contained a substance consistent with butane.^[25] She found residues of butane in the sample. It was most likely butane gas from the canisters.^[26] The witness conceded she did not go to the scene herself.^[27] She was asked to explain why there was no butane in the other two samples - this was usual.^[28] She agreed it was merely her opinion of what might have occurred not based on her scientific examination.^[29] She agreed she could not prove in the relevant sample where no butane was detected that it was below detection limits.^[30]  

Evidence of Finances

32. [32]
    Jennifer Rees works for Qsure Insurance Brokers. As part of her employment she had dealings with the defendant. She had never met her. Qsure acted as insurance broker for the Walkerston Newsagency. On 30 July 2018 at 10:30am, she sent an email to the newsagency with the insurance renewal terms. On 30 July 2018 at 10:41am, she sent a further email to the newsagency requesting updated figures on the business in respect of industrial special risks. On 31 July 2018, she received a phone call from the defendant who said there was a fire at the shop and she would be making an insurance claim. Ms Rees asked for photos of any damage to be sent.
33. [33]
    Wayne James, an accountant for the newsagency, has provided a statement dated 2 October 2018. On 2 October 2018, he checked the Next accounting computer system which revealed the Cooper Family Trust owed his business $5,846.50. The last invoice mailed to the Cooper Family Trust was on 29 September 2017 to a value of $3,465.
34. [34]
    Aiden Di-Ruggiero, in a statement dated 17 August 2018, says that about two weeks before the fire he attended the newsagency. He was asked whether he was going to buy lotto tickets. He said he was not because he did his online. The woman said:

“That pisses me off. It’s stupid people like you that are putting me out of business and I can’t afford to employ the young girls that have left school because everything’s going online and I’m losing business…”

35. [35]
    Charles Bennett, employed by the Australian Taxation Office, has given a statement dated 19 November 2018. He produces various taxation records for the defendant, Bradley Cooper and the trustee for the Cooper Family Trust.
36. [36]
    Shannon Hedrick, the director of Queensland Collection Investigation Services (“QCIS”), has provided a statement dated 12 January 2019. He knows the defendant and is aware that she owns the Walkerston NewsXpress. On 18 July 2017, Carte Blanche Australia Pty Ltd used QCIS to serve a statement of claim to the value of $1,148.14 on the defendant. The defendant was served. On 18 July 2017, Fairfax Media Publications enlisted QCIS to conduct an enforcement hearing on its behalf. The defendant was Narelle Cooper. The defendant failed to attend the court hearing. On 7 March 2018, Westpac Banking Corporation enlisted QCIS to serve a claim and statement of claim on the defendant with respect to non-payment of two loans. These were served on the defendant on 26 April 2018.
37. [37]
    On 8 September 2017, Evergreen Finance enlisted QCIS to speak to the defendant in relation to paying her account to a value of $19,801.74. On 15 March 2018, Evergreen Finance enlisted QCIS to provide it a quote to repossess a number of items within the newsagency. The outstanding debt was $19,801.74.
38. [38]
    On 2 May 2018, Queensland Newspapers enlisted QCIS to conduct a field call to take up with the defendant to ascertain what her intentions were with respect to a debt of $7,763.86.
39. [39]
    On 7 August 2018, she received instructions from Complete Acquisitions to repossess a Toyota Landcruiser which the defendant had purchased through a loan to the Commonwealth Bank. The debt totalled $82,677.61.
40. [40]
    On 14 August 2018, Queensland Newspapers enlisted QCIS to serve legal documents in respect of a debt of $8,530.06.
41. [41]
    On 21 November 2018, she received instructions from the Westpac Bank to recover the defendant’s property.
42. [42]
    Amanda Payne, employed by Westpac Bank, has provided a statement dated 1 May 2020. In that statement she says that on or about 22 April 2004, Westpac provided a loan to the defendant and Bradley Cooper for $404,000 to purchase land. On 22 March 2007, Westpac further advanced to the defendant and Bradley Cooper, $232,000. The defendant and Mr Cooper defaulted on payment on 29 April 2017 and 3 May 2017. Notices of default were issued on 2 August 2017 and 3 January 2018. The defendant and Mr Cooper failed to comply with the default notices. On 6 March 2018, a statement of claim was filed by Westpac Bank in the District Court claiming recovery of the parts of land. On 7 March 2018, Westpac Bank engaged QCIS to serve the documents on the defendant. On 1 May 2019, Westpac Bank obtained judgment to a possession of the land. The current amount owing to Westpac by the defendant and Mr Cooper is $810,012.48.
43. [43]
    Brent Trannore, employed by Next Accounting, has provided a statement dated 24 April 2020. He knows the defendant. She was a client of his. She has an outstanding debt with the Australian Taxation Office and was on a payment plan to pay back outstanding tax. The total amount outstanding was $43,460.53.

Defendant’s interview

44. [44]
    The defendant was interviewed on 31 July 2018 at the Mackay CIB interview room. She said that in the afternoon she tidied up, emptied the bins, ending the shift on the computers, counted the money and put them in the safe in the draws about 5:30pm.^[31] She went home and then Brenda called her to say there was a fire at the shop just after 6pm. She and her son went back to the shop and saw a heap of “firies”.^[32] She put the roller door down about 5:30pm.^[33] When she arrived home her son and her husband were there.^[34] She confirmed the closing procedures take about 10 minutes.^[35] At about 5:40pm she exited through the roller door, shut it with a key and then drove home.^[36] There were only three people that have a key for the roller door – she, her husband and Brenda.^[37] She said that the business had been acquired 11 years prior in 2007. They paid $520,000 for it.^[38] The original loan was taken from Westpac and they owed about $324,000.^[39] They bought their house in 2005 and owed $195,000.^[40] She denied having any finance on vehicles.^[41] There was finance on the shop fitout.^[42] The shop fitout cost $19,000. Rent for the shop was $3,300 per month.^[43] The business had been on the market for about three years.^[44] She said that the business paid its bills.^[45] The business was insured for $700,000.^[46] She said that the last time she spoke to Qsure before 30 July was 12 months prior.^[47] She said she had no idea how the fire started but she did throw an empty tea light candle in the bin at about 5pm but it was out.^[48] It was not hot to touch. It was put to her that canisters had been placed around the shop and she said that they’ve never been moved off that shelf.^[49] She said the canisters had been in the same spot for a long time.^[50] She said the store was secured.^[51] She accepted she’d been late with her rent.^[52] She was $20,000 behind in her rent at that time.^[53]

Evidence of Rees, di Ruggiero and alleged financial distress

Defence submissions

45. [45]
    In the first outline of submissions, the defence submits that the evidence of Ms Rees is irrelevant and highly prejudicial. It is further submitted that evidence of Mr Di-Ruggiero is irrelevant.
46. [46]
    As to the alleged financial evidence, it is submitted that in its present state it is incomprehensible without an expert financial witness.
47. [47]
    In further submissions, the defence relies on its earlier submissions. Further, it submits the evidence of the witness Payne should be excluded as it was sent to the defence at a time after the time limited for the provision of statements.
48. [48]
    In oral submissions the defence submitted that:

    1. (a)
       Ms Payne’s statement should not be received as it was after the time limited for the provision of statements.
    2. (b)
       There was no section 95 Evidence Act certificate accompanying the attached bank statements.
    3. (c)
       Ms Elkins’s statement should not be received as the signed statement was also provided after the time limited for the provision of statements.    
    4. (d)
       As to the evidence of financial distress, the defence repeated its submission there was no financial analysis in this case. It was also submitted that there was no evidence linking any financial distress with the crime charged.
    5. (e)
       As to Mr Di-Ruggiero, it was submitted there was no temporal link between his evidence and the alleged crime.

Crown submissions

49. [49]
    The crown submits that the case against the defendant is a circumstantial one. It particularly relies on evidence of financial pressure on the defendant as evidence of motive to light the fire.  
50. [50]
    It is submitted that a financial analysis is unnecessary as there is direct evidence of motive in this case.
51. [51]
    As to Ms Payne, it is accepted the statement was provided outside the deadline set by the court and leave is sought to rely on this evidence.
52. [52]
    As to Ms Rees, it is submitted that it is relevant that the fire occurred the very day the defendant received the insurance renewal notice.
53. [53]
    As to Mr Di-Ruggiero, this is admissible as a statement against interest and is another piece of circumstantial evidence.
54. [54]
    In oral submissions the crown submitted:

    1. (a)
       As to Ms Payne, the statement is dated 1 May 2020 (only a day after the time limited for the provision of material), it was provided within a week and there was no prejudice occasioned to the defence.
    2. (b)
       There is no issue concerning the reliability of the statement.
    3. (c)
       A section 95 certificate was not necessary.
    4. (d)
       As to Ms Elkins, the unsigned statement and photographs were provided before the time limited. There is no prejudice to the defence.
    5. (e)
       As to Mr Di-Ruggiero, there is a temporal connection between the crime charged and the statements made - they were only about two weeks before the fire.                                                            

Discussion

Ms Payne and Ms Elkins

55. [55]
    I first turn to the evidence of Ms Payne and Ms Elkins. The crown seeks leave to rely on this evidence.
56. [56]
    It is true the crown was ordered to provide the material on which it was to rely by 30 April 2020.
57. [57]
    However the court does have a discretion to extend that time.
58. [58]
    Section 590AV of the Criminal Code empowers the court to make a disclosure direction, as occurred here. Section 590AU empowers the court to waive the requirement if it is satisfied there is good reason for waiving the requirement and the waiving will not result in a miscarriage of justice.  
59. [59]
    The interests of justice extend to ensuring the defence and the crown receive a fair trial. In this case, I have decided to waive the requirement concerning both Ms Payne and Ms Elkins for the following reasons.
60. [60]
    There is no suggestion that the evidence of Ms Payne or Ms Elkins is unreliable.
61. [61]
    The Payne statement was provided not long after 30 April 2020 and the Elkins statement (in an unsigned form) before 30 April 2020.
62. [62]
    The evidence of Ms Payne proves debts owing to Westpac. There is no prejudice asserted by the defendant nor can there be as it will be some time before the trial is heard. I do not consider a miscarriage of justice arises from the admission of the evidence.
63. [63]
    On the issue of the section 95 certificate, this can be easily rectified and again would cause no prejudice. I would give leave to the crown to produce such a certificate.
64. [64]
    One issue which arose was as to the admissibility of the Claim and Statement of Claim issued by Westpac in March 2018. I originally excluded this evidence on the basis this was not served until after the fire. This was incorrect, it was served on the defendant in April 2018. I find there is special reason to reopen that ruling, I reopen it and permit the crown to rely on it.        
65. [65]
    In all of the circumstances in the exercise of my discretion, I permit the crown to rely on the evidence of Payne and Elkins.

Evidence of motive

66. [66]
    It has been held previously that though not an element of the offence, motive to commit a crime is capable of being relevant to the facts in issue particularly where the case is a circumstantial one.^[54] As Cooper J said at page 201.5 evidence of motive or absence of motive is always admissible and relevant on whether a crime was committed and if so whether it was committed by the accused.   
67. [67]
    Of course this is subject to the discretion of the court to exclude evidence of slight probative value which is far outweighed by its prejudicial effect.^[55]
68. [68]
    It is my view there is no need for a financial analyst to give expert evidence in this case. Indeed there might be arguments why it would not be admissible as a jury can assess outstanding liabilities for themselves.^[56]
69. [69]
    The defence relied on Western Australia v Edwards (No 4).^[57] It submits there is insufficient evidence to prove an impelling emotional state.
70. [70]
    However having considered all of the evidence, I am of the view there is sufficient evidence here of financial motive to go to the jury. It may be inferred the defendant set fire to her shop with a view to claim on insurance because of her debts.    
71. [71]
    In this matter there is the following evidence which tends to prove motive:

    1. (a)
       The evidence of Ms Rees that the insurance renewal was sent to the defendant the day of the fire. As regards her evidence, I accept the crown submissions that the evidence supports an inference that the defendant decided upon burning the newsagency with the intention of claiming on the insurance policy. The fact she did not do so can be considered in light of the fact the police advised her she would be committing an offence if she claimed the money. I consider the evidence is of reasonable probative value and it not far outweighed by any prejudicial effect. I do not exclude the evidence;
    2. (b)
       The statement to Mr Di-Ruggiero approximately two weeks before the fire that she was losing business and she could not afford to employ more employees. As regards to his evidence, I accept the crown submissions. This evidence is relevant to the financial pressure suffered by the defendant. It may be inferred it was the defendant who spoke to the witness. I consider the evidence is of reasonable probative value and it not far outweighed by any prejudicial effect. I consider that two weeks is not too remote from the fire. I do not exclude the evidence;
    3. (c)
       The evidence that she owed a considerable debt to the Australian Tax Office and was on a payment plan;^[58]
    4. (d)
       The evidence that by the time of the fire Westpac Banking Corporation had commenced an action against the defendant for recovery of possession of a property on 6 March 2018 and she was served.^[59] This was because the defendant (with her husband) had defaulted on two loans.^[60] 
    5. (e)
       The evidence from Mr Hedrick (from QCIS) that the defendant owed significant amounts of money and she had knowledge of this.
    6. (f)
       The evidence of Mr Cooper that the defendant handled the finances and he knew nothing of any financial distress.
    7. (g)
       The evidence of the debt owing to Next accounting.
    8. (h)
       Statements made by the defendant in her interview that the business was for sale; that she had missed paying rent in the past and she had not drawn wages for a while.
72. [72]
    In my view, the evidence of financial distress is admissible and is of reasonable probative value and should not be excluded.
73. [73]
    I would not admit evidence of debts of which the defendant was unaware at the time of the fire. For example, it seems to me the current amount outstanding to Westpac is not admissible - the amount outstanding at the time of the fire would be. Also evidence of the repossession of her car after the fire is not admissible.

Evidence of reconstruction

Defence submissions

74. [74]
    In its first submissions, the defence submitted that the absence of traces of butane in the charcoal sampled did not support Mr Ashford’s hypothesis as to how the fire started. Further the various tests do not replicate the same conditions within the business on the evening of the fire. Based on the decision of R v Dyke,^[61] it is submitted that the reconstruction evidence should be excluded.
75. [75]
    In its final submissions, the defence submits that the evidence of Ms Maxwell is speculative and does not provide a basis for inferring guilt.
76. [76]
    Also objection is taken to opinion evidence of Mr Splawinski.
77. [77]
    In oral submissions the defence submitted:

    1. (a)
       The evidence of Mr Ashford regarding the butane canisters is based on the tests. The tests should be excluded as they do not replicate sufficiently the conditions in the shop.
    2. (b)
       The evidence of Ms Maxwell is pure speculation and the evidence is not admissible.      

Crown submissions

78. [78]
    The crown does not press the admission of Mr Splawinski’s evidence.
79. [79]
    As to Ms Maxwell, the crown submits she is entitled to give evidence as an expert and the evidence she gives is within the field of her expertise. Her evidence is not speculative.
80. [80]
    As to Mr Ashford, it is submitted that the weight to be given to the reconstruction is a matter for the jury. Mr Ashford is entitled to give the expert evidence.
81. [81]
    The crown in oral submissions submits:

    1. (a)
       The purpose of the test evidence is to explain that the butane canisters did not end up in the positions where they were found because of the fire but because of human involvement.
    2. (b)
       There is sufficient similarity between the tests and the conditions in the newsagency.
    3. (c)
       The tests show the full canisters did not become projectiles as compared to empty ones.
    4. (d)
       Ms Maxwell was entitled to give her evidence in chief or at worst in re-examination. It was not speculative.

Discussion

82. [82]
    In order for expert evidence to be admitted, it must be given by a duly qualified expert, within the area of his or her expertise. The evidence is not admissible where the nature of the evidence is not such as to require peculiar habits or study in order to understand it.^[62]
83. [83]
    In Makita (Australia) Pty Ltd v Sprowles,^[63] Heydon JA said:

“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.”

84. [84]
    Also, it must be borne in mind there must be a basis for the expert of opinion. If the opinion is mere speculation then it is not admissible.^[64] 
85. [85]
    As to demonstrations, they may be admissible but of course subject to the discretion of the court to exclude evidence. For example in R v Dyke,^[65] the court was concerned with a case where the expert witness gave evidence the fire could not have started in the way described by the appellant. The appellant who had been renovating the house told somebody in an out of court statement that he was painting in the house using drop sheets and he was smoking. He said he kicked a tray of thinners (white spirits) and dropped the cigarette and went downstairs to answer the phone. One crown witness (a fire officer with 38 years’ experience) said the accused’s version was a plausible explanation for the fire. However Mr Smith, an expert witness called by the crown, gave evidence that the fire could not have started that way and produced a number of videos of men putting lit cigarettes onto material wet by thinners and some onto a dry floor with no fire resulting as compared to a lit match. Fraser JA said that this evidence was arguably inadmissible on the grounds the demonstration could not conceivably replicate what occurred.
86. [86]
    In Birks v Western Australia,^[66] it was held that a video of an experiment showing that a burning cigarette was unlikely to start a fire was admissible. It was said by Buss JA at [48] following R v Ireland (No 2),^[67] that provided the conditions for the experiment are sufficiently similar and the experiment is properly recorded and performed, the evidence may frequently be of great assistance to the jury. The conditions need not be identical but need to be a reasonable or substantial similarity.
87. [87]
    Similarly in Thompson v R,^[68] the Full Court of the Federal Court held concerning crash and fire experiments that the circumstances of the two collisions were sufficiently similar to make the evidence of the test results relevant and the weight to be placed on the evidence was a matter for the jury.
88. [88]
    I consider in this case Dyke may be distinguished in part.
89. [89]
    In this case, it is important evidence that the butane canisters were found behind the counter. Some of the tests reveal that this was not caused by fire. Some of the tests were conducted under which represented reasonably similar conditions.^[69] They were recorded. I consider they will be of great assistance to the jury. It is a matter for them of the weight to be attached to that evidence.
90. [90]
    I would admit the following tests:

    1. (a)
       Test numbers 6 and 7 - the tests where the couch was burned in a container near the canisters.
    2. (b)
       Test numbers 10 - the test which shows how one can press the top of the butane container to spray fuel and then light it. This evidence more rather relates to how a butane canister may be used.
    3. (c)
       Test numbers 12, 13 and 14 - the tests which show how the full canister does not project, but empty ones can.  
91. [91]
    I consider these tests are relevant and admissible on the question on how the canisters came to be where they were at the scene of the fire.
92. [92]
    I exclude the other tests as either irrelevant and/or not in the same conditions.
93. [93]
    I also make it clear that Mr Ashford should only be permitted to give evidence that his opinion is that the cause of the fire is consistent with the butane canisters being used. He should not swear to the ultimate issue.^[70] 
94. [94]
    As to Ms Maxwell, I am satisfied she is appropriately qualified. She holds a Bachelor of Applied Science and a Master of Scientific Studies. She has eight years field experience. The explanations for the absence of ignitable liquid is something within her field of expertise. It is not something the jury would ordinarily know of within their own knowledge (perhaps aside from points (c) and (d)).
95. [95]
    I do not consider her explanations to be speculative. She states that there are five explanations why there may not have been the presence of ignitable liquid residue in the two samples 790612771 and 790612794 namely:

    1. (a)
       Loss because of exposure to the elements or fire-fighting activities.
    2. (b)
       The residue was completely consumed by the fire.
    3. (c)
       The residue was below laboratory detection limits.
    4. (d)
       No residues were present in those areas.
    5. (e)
       No ignitable liquids were used to accelerate the fire.  
96. [96]
    The evidence is admissible and relevant and I do not exclude it.

Conclusion

97. [97]
    For the reasons given, I make the following orders:

1. I exclude evidence of test numbers 1, 2, 3, 4, 5, 8, 9, 11, 14, 15, 16 and 17 contained in exhibit 8.
2. I exclude evidence of debts of which the defendant was unaware at the date of the fire.
3. I give leave to the crown to rely on the evidence of Amanda Payne and Kim Elkins.
4. I reopen the ruling concerning the claim and statement of claim filed on behalf of Westpac banking Corporation and permit the crown to rely on this evidence.
5. I dismiss the defence application to exclude the evidence of Jennifer Rees, Aiden Di-Ruggiero, test numbers 6, 7, 10, 12 and 13 contained in exhibit 8, the evidence of Lucille Maxwell and the financial distress evidence.