R v Skillington[2024] QDCPR 21

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with one count of doing grievous bodily harm with intent to cause grievous bodily harm contrary to section 317 of the Criminal Code 1899 (Qld). 

2. [2]
   The Crown case is set out in a statement of allegations on pages 69 to 71 of the exhibits to the affidavit of Ms Tame.

3. [3]
   It does not seem to be in dispute that there was a confrontation between the defendant and the complainant at about 1.15 pm on 17 September 2021 on the footpath in front of 81 Maryborough Street, Bundaberg. The complainant says that he had observed the defendant and approached him to confront him about a pre-existing dispute regarding a puppy. It also does not seem to be in dispute that, in the 15 minutes or so leading up to the confrontation, the defendant had filled a plastic jerry can with about five litres of unleaded petrol at a nearby BP petrol station. It does not seem to be seriously in dispute that at least some of the contents of that container of petrol were ignited and caused burns to the complainant, constituting grievous bodily harm. Those burns included burns to the face, inside of the nose, almost the whole front chest, back chest on the left, left forearm, upper arm and right arm. The burns were so severe that the complainant required intubation and sedation for airway protection and air management and was placed in an induced coma for three weeks and required multiple surgeries and skin grafts.

4. [4]
   How the contents of the jerry can came to be ignited and cause burns to the complainant is the substantial factual matter in dispute in the trial, in addition to proof of the requisite intent of the defendant.

5. [5]
   The complainant will give evidence that the defendant drew back the petrol container to his right side with both hands and deliberately threw petrol on the complainant. The complainant will give evidence that a large amount of petrol landed on his upper torso. He will give evidence that the defendant again threw petrol on him, splashing on his chest and left arm, which he had raised to cover his eyes. The complainant will give evidence that the defendant then pulled a lighter from his pocket and held it towards the complainant before lighting it, which caused the combustion.

6. [6]
   The defendant was interviewed on the same date and participated in a walkthrough with police on 22 September 2022. He denied intentionally causing any injury to the complainant. He said he was confronted by the complainant, who raised fists towards him. He stated he had the jerry can in his right hand and had, shortly beforehand, put a cigarette in his mouth. He said that as he went to light the cigarette, the complainant took a punch at him. He blocked the punch with his right arm at about head height whilst holding the jerry can, and there was a big fireball. He told police that he dropped the fuel can on the ground, which splashed upwards when he dropped it. He told police that the lid to the fuel can would not screw onto the container but could only be placed over the opening to the can.

7. [7]
   Police located a burnt petrol can at the scene and a yellow spout was located nearby. A plastic yellow stopper was located at the scene. Police were unable to locate any black screw lid or a cigarette as described by the defendant. The defendant was able to produce a BIC lighter to the police, which he said was the one he had used at the relevant time.

8. [8]
   The defendant objects to certain evidence sought to be led by the Crown.

Evidence of PCSC Gordon of demonstrations, experiments and reconstructions

9. [9]
   The first category of evidence to which objection is taken is evidence of Plain Clothes Senior Constable Gordon regarding steps he took by way of an experiment or demonstration designed to show that the version of events given by the defendant was not one which could explain the injuries caused to the complainant.

10. [10]
    I refer to the statement of Ryan Kendall Gordon dated the 16th of October 2021.

11. [11]
    The Crown concedes that the second sentence in paragraph 13 is not admissible and will not be led. As I understand the submissions on behalf of the defendant, an objection is not maintained to the second sentence in paragraph 30 of the witness statement insofar as it will be led only as evidence of the fact of observations by the witness rather than any comment adverse to the defendant. The Crown concedes that paragraph 36 of the statement is inadmissible and such evidence will not be led. The Crown does not seek to lead the contents of paragraph 40 of the witness statement insofar as it comprises inadmissible, non-expert opinion.

12. [12]
    What remains to be resolved is the objection to the contents of paragraphs 38 and 39 of the witness statement and the video evidence of the experiments referred to therein, which are found in annexures R and S to the affidavit of Ms Tame. I have viewed both of those videos. Paragraphs 38 and 39 read as follows:

38. At my direction, PCSC JOHNSON activated his body-worn camera (BWC) and filmed me whilst I conducted experiments to support or negate SKILLINGTON’s version of events.

39. The tests were conducted to test a variety of scenarios and were conducted using the yellow stopper from SKILLINGTON’s fuel can test his theory that the stopper didn’t fit correctly.  During the tests using SKILLINGTON’s stopper, a minimal amount of fuel came out of the fuel can which would not have caused the extensive burns suffered by HOWARD.  The only way to replicate the amount of fuel poured on HOWARD was to throw petrol.  On my first attempt, the fuel stopper flew off and landed next to the water I threw.  On the subsequent throws, the fuel spout came out and landed near me.  I observed that the fuel stopper and fuel spout in the experiment were about the same distance apart as the fuel stopper and spout located at the crime scene.

13. [13]
    As noted earlier, the fuel can that was involved in the alleged offence was consumed by fire shortly after the alleged offence. The fuel can was used by the officer during the experiment was a fuel can which he understood to be of the same type as the fuel can involved in the incident. For reasons of safety, the experiment involved water rather than petrol in the fuel can. The yellow stopper from the actual fuel can was used in at least one of the experiments. It seems that a different yellow funnel was used in the can used in the experiments. There is a factual dispute as to what, if any, fuel cap was on the can involved in the incident, so it is not possible to say whether there was any replication of that item during the course of the experiments. The experiments essentially involved the police officer holding the fuel can up at around his head level and then dropping the fuel can to the ground and demonstrating that very little, if any, of the water contained in the fuel can was released.

14. [14]
    The Crown seeks to rely upon the result of those experiments as showing that the combustion and injuries suffered by the complainant could not have occurred by the mechanism described by the defendant. Essentially, the Crown seeks to rely upon the results of such experiments as establishing an Edwards lie by the defendant during his interviews as to the circumstances in which the complainant came to be injured.

15. [15]
    In R v Dyke [2009] QCA 339, Justice Fraser, at [31], quoted from the decision of the Western Australian Supreme Court of Appeal in Birks v Western Australia (2007) 168 A Crim R 350, where the Court concluded that a video recording of an experiment designed to show that a burning cigarette was unlikely to start a fire was admissible in the appellant’s trial for arson:

[48] In R v Ireland (No 2) [1971] SASR 6, upon the trial of the appellant for murder, the prosecution tendered evidence of tests conducted by a police officer which involved the rolling of a body over the floor of a room, and the walking of a specified distance to ascertain the time taken in the walk.  The Full Court of the Supreme Court of South Australia held that evidence of the results of the tests was admissible. Bray CJ, Hogarth and Wells JJ said, at 14–15:

“In practice, evidence of experiments, more often than not, is offered by experts and its purpose is frequently to confirm the opinions of those experts arrived at by an examination of real evidence that has been found and collected at the scene of the trial.  But, of course, the use of experiments for the purpose of enlightening a jury is not limited to those so conducted.  It seems to us that, given conditions for the experiment sufficiently similar to the conditions in which the act or event under consideration must have been done or occurred, an experiment carefully performed and conscientiously recorded and reported may frequently be of great assistance to the jury in its deliberations.  Some experiments can be carried out only by experts, occasionally by experts with high qualifications and advanced skills, but others can be carried out by ordinary laymen by the application of common sense and the employment of such tools, materials and devices that are readily at hand.  As with opinion evidence, much will depend on the degree of knowledge and skill required and the degree of precision claimed for the results of the experiment.”

…

[50] In R v Neilan [1992] 1 VR 57, … Young CJ, Brooking and Marks JJ approved, at 74–75, the following observations…:

“One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof.  It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions.  Minor variations in the essential conditions go to the weight, rather than to the admissibility, of the evidence.

There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied.  This depends largely upon the purpose for which such evidence is to be introduced.  Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury.  When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances.”

16. [16]
    In my view, it cannot be concluded that there is substantial similarity between the conditions in which the events of the alleged offence must have been done or occurred with the circumstances of the experiments. The substantial dissimilarity between those circumstances is such as to render the evidence sought to be led as having no relevance so as to be inadmissible. Alternatively, any slight probative value of the evidence is substantially outweighed by the possible prejudice of the jury placing undue weight upon such evidence. The contents of paragraphs 38 and 39 of the witness statement of PSC Gordon and the videos in annexures R and S of the affidavit of Ms Tame are inadmissible and excluded from evidence at trial. 

Opinion evidence of Daren Mallouk

17. [17]
    The other body of evidence to which objection is taken is the expert opinion of Mr Daren Mallouk.

18. [18]
    I refer to a report of Mr Mallouk, which is exhibit H to the affidavit of Ms Tame.

19. [19]
    There is no real dispute as to the relevant expertise of Mr Mallouk in the fire investigation: see the contents of his resume. Issue is, however, taken with whether some of the opinions expressed by Mr Mallouk are based on the specialised knowledge or experience of the expert that is beyond the common knowledge and experience attributable to a jury. The defendant contends that it is not demonstrated from the report of Mr Mallouk that the opinions sought to be led are wholly or substantially based on the witness’s expert knowledge and that the witness’s evidence does not explain how the field of specialised knowledge in which Mr Malouf is an expert applies to the facts assumed or observed in order to reach the opinion proffered as expert evidence.

20. [20]
    The particular parts of the evidence objected to are as follows:

4  Ignitability of Unleaded Petrol

4.1  Liquids that produce vapours that possess the ability to undergo combustion are considered an ignitable liquid.  When an ignitable liquid such as unleaded petrol is poured onto a surface only its vapours, not the liquid itself, that actually combust.

4.2  A contributing factor to the evaporation rate (volatility) is the surface material.  Porous or semi-porous surfaces, such as fabrics, will have a considerably faster pre-fire evaporation rate than if the same amount of liquid was poured onto a non-porous surface.  This is due to the wick effect.

4.3  Unleaded petrol is easy to ignite having high vapour pressure, which makes it highly volatile and a very low flashpoint (-40 C).

4.4  Flammable vapours can only be ignited within specific ranges of vapour concentration.  These limits are normally expressed as the Lower Flammable Limit (LFL), the lowest concentration by volume of flammable gas in air that will support flame propagation, and the Upper Flammable Limit (UFL), the highest concentration of flammable gas in air that will support flame propagation.

4.5  The LFL for unleaded petrol is 1.4% in air and the UFL is 7.6 % in air.  It is accepted that sparks created by a lighter’s spark wheel and/or subsequent flame … are deemed as a competent ignition source and can ignite petrol vapours.

4.6 It has been scientifically documented that hot surface ignition of petrol gases/vapours can occur. However, this concept does not include the ignition of gases/vapours ignited by a lit/smouldering cigarette (Holleyhead, 1996; Jewell et al, 2011).

…

6  Source of ignition

6.1  The following is a list of ignition sources I considered and cognitively tested.

6.1.1 Lit/smouldering cigarette- ignition from a lit/smouldering cigarette was eliminated as there is no reported scientific research that supports the ignition of petrol vapours from a lit/smouldering cigarette.

6.1.2  Static electricity- ignition from a spark generated by static electricity has been eliminated.  Static electricity is an electric charge produced by an actual transfer of electrons from some atoms onto others.  It is possible to generate charges when filling a portable fuel container; however, as in this case, if the fuel container is placed on the ground while filling, those potentially fuelled charges are earthed and no appreciable build up can occur.  In addition, the fuel dispensing pumps found at service stations are non-high flow and are earthed to minimise and control the static electricity produced during refuelling.

6.1.3 Portable heat/flame producing device (e.g., cigarette lighter)- the lighting mechanism on the cigarette lighter consists of flint that is wrapped around the serrated spark wheel.  The sparks generated from actuating the spark wheel has the ability to ignite the flammable vapours even before the production and evidence of the piloted flame the lighter is designed to produce.

7  Fire cause determination

7.1  On consideration of the evidence I reviewed, and based on my knowledge, skills and experience, I am of the opinion that the area of origin for this fire was in front of 81 Maryborough St between the road and property boundary for the following reasons:

7.1.1  The photo taken by QPS labelled QP2101750690 (Figure 2) shows four potential seats of fire (designated by A, B, C and D).  Fire pattern ‘D’ exhibits a circular pattern of more intense/prolonged combustion indicative of a burning container of flammable liquid.  The fire patterns (A, B & C) vary in dimensions but predominantly exhibit directional indicators being the length of the pattern between the road and the property boundary.  In addition, the patterns are defined and display clear separation indicative of three individual actions rather than as a result of one isolated action.

…

7.2 On consideration of the evidence I reviewed, and based on my knowledge, skills and experience, I am of the opinion that the probable cause of the fire was the ignition of petrol vapours by an introduced ignition source, such as a cigarette lighter.

21. [21]
    I note that the prosecution does not press admission of the contents of paragraph 8.1, which is, in my view, inadmissible as outside the expertise of the witness. Some of the contents of the quoted paragraphs are not specifically objected to but are included to provide relevant context to the contentious opinion evidence and would unlikely be admissible if not led for that purpose.

22. [22]
    As to the opinion expressed that the probable cause of the fire was the ignition of petrol vapours by an introduced ignition source such as a cigarette lighter rather than a lit or smouldering cigarette. The defendant submits as follows:

32. Mr Mallouk’s ultimate opinion is that the cause of the fire was ignition of petrol vapours by an ignition source.  This is not in dispute. It has no relevance.

33. Paragraph 6.1.3 of a portable heat/flame producing device is not an opinion per say [sic] but simply a statement as to how a lighter works. Something which is within the jury’s common knowledge and not an area of expertise.

34. His opinion as to what the ignition source could be is the height of his evidence relevant to a fact in issue.  At paragraph 7.2 his evidence is that the probable cause of the fire was petrol ignition by introduction of some type of ignition source, such as a cigarette lighter.  Mr Mallouk’s comment, such as a cigarette lighter is not qualified.  There is no opinion at that point expressed as to how he has formed this basis.  What can be extrapolated is that he has come to this conclusion simply by reading and considering an unknown amount of literature review articles on the subject. That is, he eliminates the ‘hypotheses of a lit/smouldering cigarette’ because he could not find any scientific literature to support that this could be possible.  It is submitted that this is not an application of his expertise to the current matter at hand.  The fact that a lighter could ignite petrol is unlikely to be a matter which a jury requires any assistance to draw. This is a matter within common knowledge.

23. [23]
    It is unfortunate that Mr Mallouk’s opinions could not have been set out more clearly; however, on a fair reading of the report, the ultimate opinion sought to be led is as earlier expressed in these reasons, that is, the opinion that the probable cause of the fire was the ignition of petrol vapours by an introduced ignition source such as a cigarette lighter and rather than a lit or smouldering cigarette.

24. [24]
    Furthermore, it could have been made more clear by Mr Mallouk in his report the basis upon which he expresses the opinion that it is unlikely that the ignition could have been caused by a lit or smouldering cigarette. As identified by the defendant, the expression of opinion in paragraph 4.6 of the report is somewhat opaque on such a matter. The basis of the opinion expressed, however, becomes more clear when one has reference to those cited sources in the relevant paragraph.

25. [25]
    In Jewell R.S., Thomas J.D., and Dodds R.A. (2011), Attempted ignition of petrol vapour by lit cigarettes and lit cannabis resin joints, Science and Justice 51 (2), 72–76, the abstract of that article provides a useful summary of its contents. 

“A recent murder enquiry prompted experimentation to confirm and visually demonstrate that lit cigarettes are not a viable source of ignition of petrol vapour.  In addition, tests comprising the attempted ignition of petrol vapour using hot and smouldering cannabis resin were also undertaken.  A series of experiments was also designed to recreate circumstances specific to the crime under investigation by undertaking cigarette/joint ignition tests involving a mannequin clothed in a cotton garment onto which petrol was applied.  The ultimate aim of the experiments was to produce a visual aid for use during court proceedings. 

Thirty nine (39) ignition attempts that involved exposing lit commercial cigarettes, hand-rolled cigarettes and cannabis resin joints to petrol vapour were undertaken; ignition was not achieved in any of the scenarios.  In addition, a single attempt to ignite petrol vapour emanating from a pool of liquid fuel was effected with a smouldering piece of cannabis resin; no ignition occurred.  In all cases the petrol was clearly present within the limits of flammability since ignition was subsequently effected using a naked flame.”

26. [26]
    The article goes on to detail such experiments and concludes, inter alia:

“All of the experiments performed, with the pool of petrol and the liquid petrol applied to a mannequin clothed in a cotton jumper, corroborated the widespread accepted view within the scientific community that a lit cigarette is not a viable ignition source of petrol vapour.

…

It is anticipated that this article will assist in countering the above-mentioned commonly held belief, and will illustrate that the likelihood of igniting petrol vapour with lit cigarettes/joints is so unlikely that it can be dismissed as a viable mechanism of ignition.  It is also hoped that the results of this research will assist investigators when presented with alternate propositions by a defendant regarding how a petrol-facilitated fire was ignited.”

27. [27]
    The authors cite Holleyhead, Ignition of flammable gasses and liquids by cigarettes: a review, Science and Justice 36 (4) (1996) 257–266, which is also cited in the report of Mr Mallouk.  That article by Holleyhead goes into some detail in discussing the physics of why mixtures in the air of petrol vapour are not ignited by lighted cigarettes.

28. [28]
    So although it required some additional investigation of the cited sources by Mr Mallouk, it does become apparent that, in fact, Mr Mallouk has identified the body of knowledge upon which he expresses an opinion within his expertise. It cannot be said that such subject matter is one of common knowledge for which expert opinion is not admissible. Indeed, such expert opinion may well dispel commonly held lay misperceptions to the contrary, sourced, perhaps, from numerous Hollywood movie or TV productions.

29. [29]
    As to the other subject of his opinion, which is found in paragraph 7.1.1 as to the mechanism by which petrol may have been deposited so as to result in the photographed charring of grass, I consider that such opinions are within the expertise of Mr Mallouk and properly the subject of expert opinion. In reaching that conclusion, I have considered whether the opinions expressed are really matters of common sense and common knowledge within a jury’s province such that expert opinion would not properly be admitted; however, I note the comments of Kiefel CJ and Gageler J in Lang v R [2023] HCA 29 at [9].  I have concluded that, whilst a jury themselves might, unassisted by an expert witness, conclude that the charring described is as a result of multiple actions of depositing of petrol, that should not preclude a relevantly qualified expert in the field expressing an opinion of the type contained in paragraph 7.1.1 of the report.

30. [30]
    So I rule that the opinion evidence of Mr Mallouk is admissible, and I refuse the application to exclude that evidence.