Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against arson and murder convictions - Evidence - Admissibility of experiments and tests - Admissibility of video showing "demonstration burn" - Whether miscarriage of justice occurred - Disputed admissions on video records of interview - Whether trial Judge failed properly to direct the jury or give a "McKinney" direction - Whether trial Judge erred in failing to direct the jury as to the availability of s 24 Criminal Code (WA) defence - New evidence - Whether, having regard to the new evidence, a miscarriage of justice occurred - Where new evidence was inconsistent with the appellant's case at trial

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)

Criminal Code (WA), s 24, s 266, s 279(2), s 282, s 444, s 570D

Sentencing Act 1995 (WA), s 90(1)

Aubertin v The State of Western Australia [2006] WASCA 229

Chamberlain v The Queen [No 2] [1983] HCA 13; (1984) 153 CLR 514

G J Coles & Co Ltd v Goldsworthy [1985] WAR 183

Georgiadis [2002] TASSC 58; (2002) 133 A Crim R 152

In Re Van Beelen (1974) 9 SASR 163

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468

Pacino (1998) 105 A Crim R 309

R v Baker [1989] NZHC 751; [1989] 3 NZLR 635

R v Ireland (No 2) [1971] SASR 6

R v Kypri [2002] VSCA 196; (2002) 5 VR 610

R v Neilan [1992] VicRp 5; [1992] 1 VR 57

R v Soma [2003] HCA 13; (2003) 212 CLR 299

Shepherd v State (1931) 51 Okl Cr 209; 300 Pac 421

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

Thompson v The Queen (1986) 13 FCR 165

2 PULLIN JA: I agree with Buss JA. The following additional observations relate to ground 2.

3 Detective Senior Constable Tilley was called to express expert opinion about the likelihood of a lighted cigarette having caused the fire. He formed an opinion, on his review of literature on the subject, that it was difficult, but not impossible, for a burning cigarette to start a fire in a bed. The "demonstration burn" or experiment which he conducted led him to express the opinion in evidence-in-chief that "as you would have seen from the tests it is quite impossible to create a fire with a cigarette butt". The relevant passages in cross-examination which are set out in Buss JA's reasons reveal Detective Tilley confirming his opinion that, in his experience and "from the available literature", and before he carried out the "demonstration burn", starting a fire with a cigarette was "very difficult", "highly unlikely" but "not impossible".

4 As the Full Court of the Federal Court remarked in Thompson v The Queen (1986) 13 FCR 165 at 347, there was at the time of that case "surprisingly little authority directly in point" concerning the admissibility of experiments, apart from the decision of the Full Court of the Supreme Court of South Australia in R v Ireland (No 2) [1971] SASR 6. The Federal Court in Thompson (supra), quoted part of the passage from Ireland (No 2) (supra) which is set out by Buss JA in his reasons. The Court then remarked that it was content to follow Ireland's case. The reference in Thompson's case to the surprising lack of authority is a reference to Australian authority. The court in R v Neilan [1992] VicRp 5; [1992] 1 VR 57 at 75, also referred to the "dearth" of Australian authority, but noted that the subject had received a good deal of attention in the United States of America. Buss JA has referred to what was said in 29 Am. Jur. 2d, SS 823 and 824. In England, it seems long to have been accepted that evidence of experiments may be given in evidence in corroboration illustration or rebuttal of expert opinion. See "Phipson on Evidence", 15th ed, 37 - 17 and "Halsbury's Laws of England" (1st ed) page 481. In Chamberlain v The Queen [No 2] [1983] HCA 13; (1984) 153 CLR 514 at 548, it may be observed that experiments were carried out by a police officer to support an opinion that a jumpsuit was cut by scissors rather than torn by a dingo. This evidence was referred to without any suggestion that the result of the experiment was not admissible in support of the policeman's opinion.

5 The evidence of the demonstration burn corroborated and strengthened Detective Tilley's opinion, based on previous experience and

the literature, that the fire was unlikely to have been started by a lighted cigarette.

6 The appellant did not contend that evidence of out of court experiments is always inadmissible. The appellant's submission was that the location, type of building, time of day, date of test and the number of unknown variables as to the type of bedding and the flooring were so different from the actual fire scene that the video footage of the "demonstration burn" ought to have been "excluded" as it was of "no probative value and was highly prejudicial". As Buss JA has explained, there were differences between the circumstances prevailing at the time of the "demonstration burn" and the fire which occurred in the early morning of 7 November 2003, but the circumstances were sufficiently similar to make evidence about the "demonstration burn" admissible.

7 BUSS JA: After a trial before Simmonds J and a jury between 17 - 23 March 2005, the appellant was convicted of arson, contrary to s 444 of the Criminal Code (WA) and murder, contrary to s 282 and s 279(2) of the Code. He was sentenced to life imprisonment on the murder charge with a minimum term of 8 years, and 2 years' imprisonment on the arson charge, to be served concurrently. The sentences were backdated to 20 November 2003. The appellant appeals against his conviction on each count.

Background facts and the occurrence of the fire

8 In late October and early November 2003, the appellant, and a group of other men, were working on the Goomalling-Toodyay road. The appellant was a water-truck driver. During this period they resided at the Victoria Hotel in Toodyay. Directly behind the main hotel building was a passageway, with a row of accommodation units on each side. Several of the workmen resided in those units. Behind the units were rows of dongas (that is, portable prefabricated structures used for accommodation). Looking from the hotel, there were two rows of dongas to the left of the passageway, and one row to the right. Each of them contained one or two beds, a bedside table and lamp, a wardrobe, and a ceiling light. The dongas were in close proximity to each other and to the units.

9 During the night of 6 November 2003, and the early morning of 7 November 2003, the appellant was staying in the B-block dongas, which were on the left of the passageway, in room B4. In the early morning of 7 November 2003, there was a fire in the C-block dongas, which were on the right of the passageway. The fire originated in donga C25.

10 On the evening of 6 November 2003, the deceased, Patrick John Moore, rode his bicycle to the hotel. Ordinarily, he resided at a house nearby. Around 10.30 pm, the deceased approached the manager of the hotel, Clayton Tempra, and asked for a room, as he was tired and did not want to ride home. The deceased was given donga C23.

11 A man named Darran Higgins, who was staying in a unit on the night in question, noticed the fire and raised the alarm. Mr Higgins awoke at around 1.20 am, and saw a bright glow through his window. He went outside and walked down the central passageway. As he approached the dongas, he saw flames coming from the window of donga C25. At that stage, C25 appeared to be the only donga on fire. The door of C25 was ajar, and Mr Higgins saw that the bed and back wall were alight. He yelled "Fire!", and looked for a fire extinguisher or a hose. Mr Higgins then saw the appellant standing in the doorway of his (the appellant's) donga. Mr Higgins shouted to the appellant that there was a fire, and they both commenced yelling and banging on the doors and windows of the units and dongas. Mr Higgins, the appellant and another man attempted to put water on the fire. Mr Higgins gave his mobile telephone to a fellow workman to call the emergency number "000". This call was recorded at 1.37 am.

12 Around this time, some of the men, including the appellant, heard someone yelling "Help!", at least twice. The sound was coming from another donga, in the same row as donga C25, which by then was also alight. Mr Higgins and the appellant attempted to approach the burning dongas, but the heat drove them back. At one stage, the appellant wrapped a blanket around himself and attempted to move towards the fire, but the other men restrained him.

13 The fire brigade and police then arrived. It was later realised that the deceased was trapped in donga C23. The cause of death was inhalation of fumes.

14 On the morning of 7 November 2003, at 8.25 am, the appellant gave a statement to the police.

15 The appellant said he was 43 years of age. He had drinks at the hotel on the evening of 6 November 2003, and returned to his room before closing time. He said:

"I went straight to bed and reckon I would have slept straightaway. I was drunk, but not paralytic."

16 The appellant said that, sometime during the night, he was woken by a loud bang (which sounded like a door being slammed), and when he went outside to investigate, he heard Mr Higgins yelling "Fire, fire!". The appellant ran down the passageway between the dongas and could see smoke and a red glow coming from another row of dongas. The appellant and Mr Higgins awoke people, and attempted to extinguish the fire with a fire extinguisher and a hose. The appellant then heard a voice coming from one of the dongas. He was in "a bit of a panic", and the fire was very hot. The appellant wrapped himself in a blanket and went to help the trapped man, but was held back by the other men. After the fire brigade arrived, he realised a man had died. The appellant did not know the deceased well, but had met him a couple of times at the hotel. He saw the deceased in the hotel on the night in question.

17 On 20 November 2003, the appellant was interviewed twice by Detectives Rakich and Bethell, of the Major Crime Investigation Unit. He was interviewed first at police premises in Curtin House, and then at the scene of the fire in Toodyay. The interviews were recorded on videotape.

18 At both interviews, the appellant told the detectives, in substance, that, after leaving the hotel, he went to his room, changed his clothes, telephoned his girlfriend, and went outside for a cigarette and to check his truck and the other vehicles. He then went to a row of dongas, saw the door of donga C25 ajar, and, a little later, threw his cigarette into the donga. He said the fire started about 10 or 15 minutes later, but he was unable to locate a fire extinguisher, and panicked. He returned to his donga, stood outside, and lit another cigarette. Mr Higgins then appeared. (AB 15 - 20, 35 - 39)

19 During the first interview, at police premises, the appellant admitted, a number of times, that he thought he started the fire, or that he did start the fire. He said, relevantly:

(b) "I was drunk. I had a big night in the hotel that night, and then - - I think I did. I'm owning up to it, so I must have started it." (AB 11)

(c) "I think I started it with a cigarette. I'm not 100 per cent sure. It's all pretty well mucked up in my head. I'm confused ... " (AB 11)

(d) " ... Everything's confusing in my head. I just don't know what happened. Why I done it and - - it just won't come back to me." (AB 12)

(f) "I think I threw a cigarette in there and I don't know why." (AB 18)

(g) He threw the cigarette towards the bed but did not see where it landed. He added "I just threw it and walked away. I don't know why I done it, though ... " (AB 18-19)

(h) There was about a quarter of a cigarette left when he threw it, and he could not say why he didn't just throw it on the ground and step on it. (AB 19)

(i) "I just - - I thought it had gone out at first. I didn't think anything would really happen, until it started burning. Then I panicked. Oh, shit." (AB 19)

(j) "I panicked like shit when I heard someone was yelling and I wanted to go back in there and help them, because I didn't want to hurt no one. I didn't mean to do this." (AB 20)

(k) He said, in relation to throwing the cigarette into the donga, that he was "drunk and stupid". He had had "a fair bit to drink; not paralytic. I could walk, but I was pretty pissed". He knew what was going on around him and wasn't "blacked-out or anything". (AB 20 - 21)

(l) " ... I don't know why I done it. I've been trying to work it out for the last 2 weeks, and I can't". (AB 21)

(m) The detectives questioned him about whether he realised that throwing the cigarette had the potential to start a fire. The appellant only said, "I don't know. As I said, I was drunk" and "I was drunk, and I don't know why I done it. But I panicked and it got out of control. I couldn't stop it." (AB 22, 30)

(n) He asked hotel staff and management about the fire "probably because I felt guilty". (AB 24)

(o) "I didn't mean to hurt anyone. I didn't. You know, I feel that big. I should be dead. I feel I want to die now. Can't you just take me out and shoot me, and get it over with?" (AB 24)

(p) " ... I don't know why I done it. I don't understand why I done it. It's in here and it won't come out." (AB 24)

(q) "I'm that sorry I done it. I don't know why I done it. I just think I'm going mental maybe. I don't know." (AB 25)

(r) "I'm so sorry. I wish I could turn the clock back and bring it all back, so it didn't happen." (AB 25)

(s) When he gave his statement to the police on the morning of 7 November 2003 he did not tell the police he threw the cigarette into the donga because of "panic, because somebody got hurt and died". He also said that it was "because I was scared shitless. I should have just owned up to it. But I don't know why I done it, though. I still - I can't work it out. What can I say? I'm trying to tell you everything." (AB 26)

(t) He needed help "to see why I started the fire." (AB 31)

20 In the course of the first interview, the detectives suggested to the appellant that the fire could not have occurred in the manner he described; that is, by throwing the cigarette butt into the donga, and that he had entered the dwelling and deliberately started the fire by holding his cigarette lighter or cigarette to the bedding. The appellant denied that suggestion. He said:

(a) "No. I definitely threw the cigarette in there - definitely. I can remember that. I don't know why. I don't know. I just wish I could work out why." (AB 27)

(b) "I don't think I done it intentionally. That's the thing. It's something - - I don't know why now. This is the thing that's getting me, and why I can't answer this." (AB 28)

(c) "I don't think I went in there intentionally to do it. I don't know why I went in there to do it. I don't know why I done it." (AB 28)

21 During the second interview, at the scene of the fire, the appellant said, relevantly:

(a) "I stood here smoking at the time. Then I remember seeing a door open on this unit. For some unknown reason, I threw a cigarette in there." (AB 37)

(b) "Threw the cigarette in there, and went back to my room. I don't know why, though." (AB 38)

(c) He did not see where the cigarette landed after it was thrown. (AB 38)

(d) There was about a quarter of the cigarette remaining and he did not know why he threw it in the room when he could have extinguished it outside. He said, "I don't know. I do not know, I was drunk. I don't know what my actions were, though." (AB 38, 49)

(e) He should have raised the alarm about the fire when it started, but he could not find a fire extinguisher, he panicked, and he did not know what to do until Mr Higgins arrived at the scene. (AB 38-39, 49)

(f) As he was assisting Mr Higgins to attempt to extinguish the fire, he was "panicking, thinking what have I done? Why have I done it?" (AB 42)

(g) "I got a small bit of glass in my foot, which I pulled out. It was only a bit of glass; but no injuries. No, I wish I did." (AB 43)

(h) " ... I don't know what I was doing. I can't recall why I done it, what made me do it, and why I done it." (AB 46)

(i) He did not know if he was intending to start a fire, but he thought that the consequence of his actions was a fire. He then said, "I didn't mean to do it. I don't know why I done it." (AB 46)

(j) " ... I'm just sorry. I didn't mean to do it." (AB 49)

(k) "I didn't mean to hurt anyone. I didn't mean to cause a fire. I just don't know why I done it. It must have been the alcohol. I had no drugs. I don't do drugs." (AB 49)

22 The appellant objected to the admissibility of the video records of interview. After taking evidence from the interviewing police officers and the appellant, the learned Judge ruled that the video records were admissible.

23 At trial, the appellant disputed the confessions he made in the interviews. He said he had not been involved in starting the fire, and the admissions he had made were untrue.

24 The appellant said he made the confessions for these reasons:

(a) he did not have a choice about going with the police (T289);

(b) he believed he was obliged to participate in a video record of interview (T292);

(c) his girlfriend suggested to him, when they were discussing the fire, that the fire could have been caused by someone accidentally throwing a cigarette into the room (T284);

(d) the detectives said that Mr Higgins saw him standing outside his (the appellant's) room at the time of the fire, smoking a cigarette (T291, 292);

(e) the detectives said all the evidence pointed to him, and he may as well confess (T292);

(f) the detectives said they wanted to tell the deceased's family they had found someone, to put their minds at ease (T293);

(g) the detectives said he had a 10-tonne load bearing down on his shoulders and that "this has been eating you up all week and you are not yourself" (T294);

(h) when he said he wanted to telephone for legal assistance, the detectives told him the matter would be "easiest sorted out without a lawyer" (T294);

(i) he was prevented from making any further telephone calls, after talking to his girlfriend on the telephone (T293);

(j) one of the detectives slammed his (the detective's) hand on the desk, and they were pushing him for answers, saying that everything pointed to him (T294);

(k) he had been "pushed and traumatised by the whole event" (T296);

(l) he was "just saying things because I was so upset and being pushed into saying I threw it, so I just said things" (T296); and

(m) all of this conduct by the detectives made him feel very upset and very scared (T293, 294, 296).

25 The appellant asserted (at T296) that, during the second interview, at the scene of the fire, he explained to the detectives where he was when he threw the cigarette because "I just made it up as I went along because I was so stressed, upset and - of the things the police said to me ... ".

26 The appellant contended that the detectives made the statements which induced him to confess during the 1 - 2 hours he was at the police premises in Curtin House, before being interviewed on video. But the detectives, in their evidence, disputed all of the appellant's allegations of misconduct against them (T249, 251 - 253, 256, 262 - 264).

(a) admitted he accompanied the detectives willingly to be interviewed (T307);

(b) admitted he knew he had the right to remain silent and could stop the interview at any time (T307);

(c) agreed (on his version) that being told Mr Higgins saw him standing outside his room smoking did not cause him to believe he had started the fire (T303 - 304, 313);

(d) agreed (on his version) that being told the deceased's family was grieving did not cause him to confess (T305, 313);

(e) agreed that the detectives did not give him a script or tell him what to say on the video or suggest he should admit to throwing the cigarette into the donga (T307 - 308);

(f) agreed (on his version) that the detectives discouraging him to contact a lawyer did not cause him to believe he had started the fire (T313);

(g) agreed (on his version) that the detectives thinking he had started the fire did not cause him to believe he had started it (T313);

(h) agreed he defended himself against allegations from the detectives that the fire could not have been caused by a cigarette butt, and that the appellant had deliberately set the donga alight (T317);

(i) denied that his admissions were true, and said he confessed for these reasons:

(i) he was confused and upset (T302, 313, 317, 318, 320);

(ii) because of "the way they pushed me and the way I was so upset with everything they said in the first room without a video, that I just confessed for it" (T313);

(iii) "Because someone had died ... and I wanted to know how it started" (T316);

(iv) "I just made it up as I went along" (T316); and

(v) he was upset because of what the detectives allegedly said to him and he was "very traumatised about the whole event" (T317); and

(j) agreed he did not complain on the video about the detectives' conduct, when he had the opportunity to do so, but claimed his comment at the end of the second interview that he had been treated "like a person" referred only to their conduct on video (T322 - 323).

28 During examination-in-chief, the appellant said (at T273 - 278), in substance, that after he left the hotel, he went back to his donga, got a cigarette, and went to check his truck and the other vehicles. He then returned to his donga, called his girlfriend, and fell asleep. He was woken by a loud "bang", following which he went outside, lit a cigarette, and heard Mr Higgins shouting about a fire.

29 It was pointed out, in cross-examination (at T311 - 312), that the appellant's evidence-in-chief as to the sequence of events after leaving the hotel on the night in question conflicted with the sequence he described in the police interviews. In the interviews, he had said that, after leaving the hotel, he went to his room, changed his clothes, telephoned his girlfriend, and then went outside to smoke a cigarette and check his truck and the other vehicles. When questioned as to the discrepancy, the appellant said he got "mixed-up" as a result of being emotional and upset. Further, he mentioned in his statement and evidence-in-chief a loud "bang" which had woken him, but did not mention the "bang" during the police interviews. (T312)

30 On 17 February 2004, the Arson Investigation Unit within the Major Crime Investigation Unit carried out a "demonstration burn", at a Fire and Emergency Services Authority training ground. The "demonstration burn" was videotaped and tendered in evidence at trial, as Exhibit 10.

31 The video, which depicts a bed, made with bedding and a doona, in a tin shed, shows three different scenarios:

(a) a full cigarette and a half cigarette, both alight, were placed on top of the doona and allowed to burn until extinguished;

(b) three full cigarettes and a quarter cigarette, all alight, were placed (one was casually thrown) into the doona, which had folds, and allowed to burn until extinguished; and

(c) a corner of the doona was set alight, using a cigarette lighter, and allowed to burn for a while, and the fire was then extinguished with water.

32 The purpose of the "demonstration burn" was to test the likelihood of a fire being started by a lit cigarette thrown into a donga, assuming the cigarette had come into contact with the bedding. In other words, the purpose was to test the plausibility of the appellant's assertions, in the interviews, as to the cause of the fire.

33 Counsel for the appellant did not object to the tender of Exhibit 10.

34 Evidence concerning the "demonstration burn" was given by an expert witness, Detective Senior Constable Tilley, of the Arson Investigation Unit. He explained, in evidence-in-chief, the differences between donga C25 and the room used in the "demonstration burn":

(a) "You try to replicate - we can't replicate it 100 per cent but we make every endeavour to replicate the situation with items, flammable items et cetera. This was a training ground. The day was different. It was during February so unfortunately we can't replicate the temperature et cetera like that because the fire was reported at night-time, but every endeavour is tried to replicate it." (T202)

(b) The bed used in the demonstration had a steel frame with a "timber headboard, like plywood, laminate sort of timber". The beds in the C-block dongas had steel frames with no plywood headboard. (T215)

(c) The room used for the demonstration had simple metal sheets for walls whereas the C-block dongas had timber panelling. (T215)

(d) The demonstration room was a three-walled room with no front wall, but donga C25 was an enclosed room with the door partly open. (T216)

35 The relevant differences were also explored in cross-examination:

(a) The demonstration room did not contain any electrical items, whereas the donga in question had a wall heater, a light fitting from the ceiling and a wall-mounted bed lamp. Detective Tilley said he did not include those items in the demonstration because they were not near the area of origin of the fire, which was located on or about the area of the bed. (T219)

(b) The room was replicated "[t]o the best we could. We are not going to get it exact. To my understanding the material we got - the bed linen et cetera - was from the hotel but unfortunately we weren't - had at our disposal dongas et cetera to do that." (T221)

(c) The amount of oxygen in the donga in question could not be replicated, as the demonstration room was missing a front wall. The demonstration room received a larger amount of oxygen. (T221 - 222)

(d) The demonstration could not replicate the state of the bedding; that is, for example, whether it was on the bed in a "messed-up condition" or on the floor. (T223)

36 At the material time, Leisa Tempra was the licensee of the hotel. She said in evidence that a man named Andrew Sarich occupied donga C25 (where the fire originated) of the night of 5 November 2003 (the night before the fire) and departed on the morning of 6 November 2003. Ms Tempra was questioned at trial as to whether donga C25 was cleaned, and the bed remade, on 6 November 2003, after Mr Sarich's departure. She said:

(a) if the bed had not been remade, it would still have had a pillow, "[a] bed cover, a doona and a cover over the doona" on it (T58 - 59);

(b) if the bed had been remade, it would have had sheets, a blanket, a doona and two pillows, together with a towel and soap (T68 - 69); and

(c) she did not have an actual recollection whether or not the bed in donga C25 had been remade after Mr Sarich departed and before the fire started (T69 - 70).

Ms Tempra confirmed (at T69) that she had given, to the police, bedding of the kind normally used in the C-block dongas. Detective Senior Constable Tilley said (at T221) that bedding was obtained from the hotel to replicate the kind of bedding used in donga C25.

37 Mr John Watson was called by the respondent and gave expert evidence as to the cause of the fire. He had previously been employed as a senior electrical inspector with the electrical inspection branch of the Department of Consumer and Employment Protection, but was now retired. On 7 November 2003, Mr Watson inspected the scene of the fire (that is, his inspection occurred one day after the fire). The purpose of his inspection was to determine whether the fire had been caused by an electrical fault. Mr Watson gave evidence (at T162 - 163) that the extensive damage caused by the fire constrained his ability to ascertain whether an electrical fault had occurred. He described a report he prepared in relation to the fire as "inconclusive". Mr Watson was unable to find any evidence which suggested that an electrical fault caused or contributed to the fire. On the other hand, he was unable to find any evidence which suggested that an electrical fault was not involved. In short, he was unable to say whether or not an electrical fault was responsible for the fire.

38 Detective Senior Constable Tilley had a diploma in fire investigation and was a fire scene examiner. On 7 November 2003, he examined the scene of the fire. Detective Tilley concluded that the origin of the fire was in donga C25. He said, more precisely (at T191):

" ... my conclusion was that it was somewhere on the bed of C25, more the end of the bed - not the head of the bed - where your feet lie which is more towards the door; a radius of probably one to two metres around that bed, on or around that bed area."

In other words, the radius of origin of the fire was closer to the bottom of the bed. Detective Tilley sought to exclude accidental causes. As regards electrical faults, he said (at T192):

"I look at the electrical in a sense. I don't do electrical examinations because I am not a qualified electrician, but I am aware of those causes and they can cause fires. So I do an examination in the [sense] of looking at the light switch, the light in the ceiling and the heater on the wall. They were all examined and I am examining them for signs of fire and damage. I am looking, as I said, for the greatest amount of damage and in this instance there was no fire damage that originated from the electrical items."

39 Detective Senior Constable Tilley concluded that an electrical fault did not cause the fire (T192), but because he did not have expertise as an electrician, Mr Watson was engaged to investigate that issue. Detective Tilley did not find any evidence of petrol, kerosene or any other accelerant having been used to start the fire (T193). The appellant's counsel cross-examined him (T221 - 223) as to the possibility of a fire being started by a lit cigarette in bedding, generally and in the context of the "demonstration burn":

"Is it your evidence that that method of starting a fire is very difficult?---It is very difficult, yes.

But not impossible?---No, it's not impossible but in this circumstance it is highly unlikely.

So very difficult, highly unlikely in this circumstance?---That's correct.

And not impossible?---No, not impossible.

That, for a fire to start with a burning cigarette on a bed, depends upon a coming together of those three things: oxygen, heat and material, fuel, in an optimum way. Is that right?---That's correct. For a fire you need those three elements and as I said, we call it the fire triangle.

So before you did this test burn in February 04 in your experience as a fire investigator it always was highly unlikely, difficult but not impossible. Before you even did this test burn?---That's correct from my experience, yes.

And from all the available literature and that sort of thing?---That's correct, yes.

In order to have that test burn relate to this particular case one of the things you did was try to replicate the scene. Is that right?---To the best we could. We are not going to get it exact. To my understanding the material we got - the bed linen et cetera - was from the hotel but unfortunately we weren't - had at our disposal dongas et cetera to do that.

So might I put to you some of the things that might have been different. For example, you weren't able to replicate the amount of oxygen in the room, for example?---No, that's correct, because in the test burn the front wall was missing. So it is going to get a larger amount of oxygen.

What about the effect of wind? Does wind make it more likely that ignition can occur?---Yes, wind would help and that's just simply oxygen being blown across the fire. As you can probably see from fires and that the wind does have some effect and pushes it to the direction where the wind is blowing to.

In trying to relate it to what might come up in this case, wind blowing across a lighted cigarette butt increases likelihood?---It's a possibility again, yes.

Wind from an open door or a draft in an old room, for example. Would that be right?---That's correct, but in the test you saw the cigarettes on the bed there and the wall was completely missing so that had a large amount of wind blowing across it and we still couldn't get the cigarette to light, or to ignite.

Would a cigarette butt lying on a surface - one of the other more precise optimum factors would be the exact nature of the flammable material. I suppose I ought try and make that more clear. A frayed edge would be more likely to ignite than a flat surface. Would that be right?---It depends on your combustibles. If the item is smaller then it is probably easier to burn than a bigger piece of item. The simply [sic] scenario that I can give you, or the example, would be a small twig to a large piece of wood. A small twig will burn quicker, or ignite, than a large piece of jarrah wood or something like that. So, yes.

A frayed edge of bedding might be more likely to ignite than a flat surface. Would that be right?---A frayed yes, but it has got to sustain combustion.

In fact, an edge of an item itself might be more likely to hit ignition than a flat surface. In this case an edge of a sheet rather than a flat surface. Would that be right?---That's correct. It would be easier to ignite if you put a naked flame to it.

We see on the video that you appear to have to some extent tried to replicate different possibilities. Is that why you made folds in the bedding?---That's correct, yes. I made folds in the bed for the possibilities of a cigarette being thrown in and landing into a fold et cetera, along those lines, so I just set up different scenarios to see what the outcome would be.

But of course you weren't able to replicate C25 in terms of whether the bed was made or not. You simply made the bed?--We simply made the bed. That's correct.

And you weren't able to replicate whether the bedding was on the floor or on the bed in a messed up condition or anything like that?---That's correct. We were unable to determine that."

40 Significantly, Detective Senior Constable Tilley's evidence was therefore to the effect, and the "demonstration burn" also indicated, that it was highly unlikely that the fire in question was started as a result of a lit cigarette having been thrown into donga C25.

41 At the material time, s 444 of the Code provided, relevantly:

"(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if no other punishment is provided, to imprisonment for 10 years.

(2) If the property is destroyed or damaged by fire, the offender is liable to imprisonment for 14 years."

42 At the material time, s 279(2) of the Code provided, relevantly:

"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -

...

(2) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

...

is guilty of murder.

...

In the second case it is immaterial that the offender did not intend to hurt any person."

A person, other than a child, who commits the crime of murder is liable to a mandatory punishment of life imprisonment: s 282 of the Code. By s 90(1) of the Sentencing Act 1995 (WA), a court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years which the offender must serve before being eligible for release on parole.

43 On 30 November 2005, Wheeler JA granted leave to appeal on grounds 2, 4 and 5. At the hearing of the appeal, this Court granted the appellant leave to amend ground 2 by adding the words "alternatively, the admission of the evidence led to a miscarriage of justice" at the end of the original ground. The grounds, as amended, read, relevantly:

"The Learned Trial Judge erred in law and in fact in:

...

2. admitting into evidence video footage taken by [the] police department arson investigation unit of a fire purported [sic] to be a 're-enactment' where the location, type of building and time of the fire were completely different from that of the fire the subject of the arson count on the indictment, such evidence having no probative value and being highly prejudicial, alternatively, the admission of the evidence led to a miscarriage of justice.

4. failing to direct the jury, where there was a dispute as to how the admissions contained in the appellant's video records of interviews with investigating police came into existence, the jury would need to scrutinise the evidence of the police witnesses with care as:

(a) it is difficult for the Appellant to have evidence to support his version as he was in police custody at the time and

(b) as police are practiced [sic] witnesses and it is not an easy matter to determine whether a practised witness is telling the truth (a 'McKinney' direction).

5. failing to direct the jury as to the availability of a defence under section 24 of the Criminal Code in relation to the State's reliance, in the alternative, on section 266 of the Criminal Code."

44 Section 30 of the Criminal Appeals Act 2004 (WA) applies to an offender's appeal against conviction. By s 30(3):

"The Court of Appeal must allow the appeal if in its opinion -

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice."

Section 30(4) provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

45 Where evidence is received at a criminal trial without objection and the trial Judge makes no ruling on its admission, there is no wrong decision by the Judge on a question of law, within s 30(3)(b) of the Criminal Appeals Act. See R v Soma [2003] HCA 13; (2003) 212 CLR 299 at 303 - 304 [11], 324 [79].

46 In the present case, the appellant did not object to the tender of the videotape of the "demonstration burn" (Exhibit 10), and the learned Judge therefore did not make a ruling on its admission. Accordingly, the first limb of ground 2, which alleges that his Honour erred in law and in fact in admitting the videotape into evidence, is misconceived and must fail.

47 I turn now to consider the second limb of ground 2, namely, whether the admission of the videotape constituted a "miscarriage of justice", within s 30(3)(c) of the Criminal Appeals Act. Also see Soma at 324 [79]. Two issues arise. First, whether the videotape was technically admissible. Secondly, if the videotape was technically inadmissible, whether the appellant's counsel failed to object for rational forensic reasons so that, in the circumstances, no miscarriage of justice occurred.

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. If a layman witness is seen by a trial judge to have blundered into arcane fields of science or learning with inadequate training, or to be claiming that his experiment produced results whose accuracy is plainly exaggerated, he will, no doubt, either recommend to the jury that they disregard the evidence or, in his discretion, exclude it. But there is a wide range of experiments whose purposes and execution are so easy to follow and to assess, and whose results are so plainly useful, that a jury can legitimately make reference to them to assist in ascertaining the truth, even though they are conscious that their results are only approximate."

Their Honours approved the following statement in the judgment of Edwards J in Shepherd v State (1931) 51 Okl Cr 209; 300 Pac 421:

"The general rule as to the admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several Courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury."

49 Ireland (No 2) was followed in Thompson v The Queen (1986) 13 FCR 165. In that case, the appellant had been convicted after a trial by jury in the Supreme Court of the Australian Capital Territory of murdering two sisters whose remains had been found in a burnt-out motor vehicle that had crashed against a tree and caught fire near the Monaro Highway in the Australian Capital Territory. The prosecution's case was that the appellant had murdered the sisters and feigned an accident resulting in the fire. The appellant gave an explanation to the police to the effect that he was driving on the Monaro Highway when he was dazzled by the lights of an oncoming vehicle. He said he drove his vehicle from the highway, without braking, and collided with the tree at a speed of 40 - 45 miles per hour. He also said his vehicle then burst into flames, the fire beginning in the engine compartment and spreading to the inside of the vehicle. According to the appellant, the flames engulfed the vehicle so rapidly that although he was able to extricate himself, it was impossible for him to assist the two sisters, who were his passengers. The police conducted experiments, which were referred to as the crash experiment and the fire experiments, to test the appellant's account of the events in question. The Full Court of the Federal Court held that the trial Judge had been correct to admit evidence of the experiments, and that the divergences between the circumstances of the experiments, on the one hand, and the circumstances of the appellant's version of the facts, on the other, went to weight rather than to admissibility. Forster, Everett and Miles JJ said, relevantly, at 173, in relation to the crash experiment:

"It seems to us that the difference in the loads carried by the two vehicles must have worked in the appellant's favour so that we may safely ignore that difference whatever it may have been.

In the event, it seems to us that the circumstances of the two collisions were sufficiently similar to make the evidence of the test results relevant. The weight to be put on that evidence was, of course, a matter for the jury."

Also see R v Baker [1989] NZHC 751; [1989] 3 NZLR 635, especially in relation to the distinction between an experiment and a reconstruction.

50 In R v Neilan [1992] VicRp 5; [1992] 1 VR 57, the applicant was charged with the murder of his wife. His defence was that unknown intruders had committed the murder. The intruders had broken into the family home, assaulted him, placed him in the boot of a motor vehicle and shot his wife. During the trial, evidence was received of tests conducted by the police to determine whether the applicant could have seen the intruders approaching his home, as he claimed. The applicant was convicted. The Court of Criminal Appeal of Victoria considered the principles governing the admissibility of evidence of experiments and tests. Young CJ, Brooking and Marks JJ approved, at 74 - 75, the following observations in 29 Am. Jur. 2d, SS 824:

"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."

Their Honours held, at 75, that in the case before them it had not been shown that there was such a similarity of relevant conditions on the night in question and at the time of the tests to render evidence of those tests admissible. They then said:

"The evidence of the tests was wrongly admitted. But after careful consideration we are satisfied that no substantial miscarriage of justice has occurred in consequence of the reception of this inadmissible evidence. It should at the outset be noted that the case is not one of the erroneous reception in evidence of material that is intrinsically highly prejudicial, such as evidence of bad character or evidence of the kind considered in Maric v. R (1978) 52 ALJR 631. The evidence in question was no more than evidence of tests conducted with a view to ascertaining what could be seen in and from the house having regard to the state of the lighting, although it is true, as Mr Winneke submitted, that the evidence was led for the purpose of helping to persuade the jury that the accounts which the accused had given about the killing were not to be believed. The evidence was not given by experts of experiments carried out by them in a field within their expertise: it was evidence of lay persons about what they could see in or from a dark room and looking from the doorway of a dark house. The evidence had about it none of the possibly deceptive persuasiveness which might be thought to attach to the use of scientific instruments under conditions which did not reproduce those of the night in question. Moreover, because the admissibility of evidence of this kind is governed by a principle based on common sense as opposed to depending upon some rule of law that a jury might have difficulty in understanding, and because, similarity being a matter of degree, there is no hard and fast line between dissimilarity which merely affects (and may affect very seriously) weight, and on the other hand dissimilarity which leads to irrelevancy, the jury were in a position themselves to perceive the weakness of the tests. This weakness was well and truly exposed in cross-examination of the Crown witnesses concerned and was made much of by counsel for the defence in his final address. The Crown, without formally abandoning reliance on the tests, appeared in its final address to set no store by them. The unsatisfactory nature of the tests being an obvious matter which had been thoroughly exposed the jury, we do not think that the jury would have placed any weight on them. Moreover, the Crown case against the applicant was a very strong one."

The Court therefore held that in the circumstances there was no miscarriage of justice. The application for leave to appeal was dismissed.

51 In the present case, there were differences between the "demonstration burn" and the fire which occurred in the early morning of 7 November 2003, relevantly, as follows:

(a) the materials from which the demonstration room was constructed were different from donga C25 in that the demonstration room comprised metal sheets for walls, whereas the donga had timber panelling;

(b) the demonstration room was a three-walled room with no front wall, whereas donga C25 was an enclosed room with its door partly open at the relevant time;

(c) the bed in the demonstration room had a steel frame with a timber headboard, whereas the bed in donga C25 had a steel frame and no wooden headboard;

(d) although the bedding used in the "demonstration burn" was obtained from Ms Tempra and was the kind of bedding which had been used in donga C25, the arrangement of the bedding in donga C25 at the relevant time was unknown, and the arrangement of the bedding therefore could not be replicated; and

(e) the weather conditions were different.

52 The evidence of the "demonstration burn" was led by the respondent to establish that the appellant had lied in the interviews in relation to his having thrown a lit cigarette into donga C25. The respondent's case was that although the appellant's admissions in the interviews of his involvement with the fire were true, his admissions as to the means by which he started or thought he started the fire were false. According to the respondent, the appellant had entered donga C25, had deliberately set fire to the bedding (most likely with a cigarette lighter) and had then returned to his own donga and smoked a cigarette until the fire was discovered by Mr Higgins and the alarm raised.

53 In my opinion, the circumstances of the "demonstration burn" were sufficiently similar to those of the fire in the early morning of 7 November 2003 to make the "demonstration burn" relevant to and probative of the facts which the respondent sought to prove by its tender.

54 The differences between the circumstances of the "demonstration burn" and those of the fire in the early morning of 7 November 2003 did not have a tendency to confuse or mislead the jury. The dissimilarities in question affected the weight to be given to the evidence of the "demonstration burn", but did not render that evidence irrelevant or without any probative force, and therefore did not make it inadmissible. The differences between the fire in the early morning of 7 November 2003 and the subsequent experiment were explored in detail at the trial. Some of those differences made the creation of a fire in the course of the "demonstration burn" slightly more likely, and others made it slightly less likely. Significantly, however, the kind of bedding used in the experiment was identical to the kind of bedding in donga C25 in the early morning of 7 November 2003. The jury were in a position adequately to assess the differences and to determine the weight to be given to the evidence of the "demonstration burn", in the context of the purpose for which it was led.

55 I am therefore of the opinion that the videotape in question (Exhibit 10) was admissible. It was relevant and probative, and there was no proper basis for excluding it on the ground of prejudice to the appellant or otherwise.

56 I turn now to consider whether the appellant's counsel failed to object to the tender of the videotape for rational forensic reasons so that, in any event, no miscarriage of justice occurred.

57 I have already explained the respondent's case at trial, and its purpose in leading evidence of the "demonstration burn".

58 I have also mentioned that the appellant's case at trial was that his admissions in the interviews were untrue, and he did not cause the fire. In particular, the appellant denied at trial that:

(a) he had thrown a lit cigarette into donga C25 (or any other donga);

(b) the fire was started by a lit cigarette; and

(c) he had started the fire (either deliberately or accidentally).

59 In my opinion, it suited the appellant's case at trial to have evidence which tended to establish that the fire could not have been started by a lit cigarette thrown into donga C25. The videotape of the "demonstration burn" supported the appellant's case in that it indicated that his admissions in the interviews in relation to his having thrown a lit cigarette were untrue. It is apparent that the appellant's counsel did not object to the respondent's tender for rational forensic reasons. The admission of the videotape did not occasion a miscarriage of justice merely because the course of action adopted by the appellant's counsel at trial failed to secure an acquittal. See Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 at 773 - 774 [23], 779 - 780 [54], 781 [65].

61 In McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468, the applicants were convicted after trial on charges arising out of the breaking and entering of premises, assault with intent to rob and assault occasioning bodily harm. The prosecution's case was based substantially on signed police records of interview. Apart from their signatures, there was no independent evidence corroborating the making of the records of interview or confirming their contents. At trial, the applicants asserted that the records of interview had been fabricated by the police and that they had signed the documents only because their will was overborne. The trial Judge gave no warning to the jury as to the need to exercise care in regard to the confessional evidence. The High Court held, by a majority, that whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated, the trial Judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone. Mason CJ, Deane, Gaudron and McHugh JJ said, at 478:

" ... the basis of a prima facie requirement that a warning be given in future cases involving an uncorroborated confessional statement allegedly made by an accused while involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account is not a suggestion that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses. The basis lies, as we have explained, in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement. That basis is obviously a fortiori in a case such as the present where it is common ground that the involuntary detention of the applicants in police custody was unlawful."

62 In R v Kypri [2002] VSCA 196; (2002) 5 VR 610, the Court of Appeal of Victoria distinguished McKinney. The applicant in Kypri had been convicted, after a trial before a judge and jury, of one count of attempting to obtain property by deception. The applicant denied at trial that he intended to obtain any property by deception and alleged that he had been forced to make a confession as a result of the police having persuaded his brother to put unfair pressure on him to make the necessary admissions as to his intent. The Court of Appeal held that the applicant's confession had been recorded in accordance with statutory requirements and that the surrounding circumstances were significantly different from those which formed the assumed basis of the decision in McKinney, namely, those of isolation and powerlessness leading to a feeling of vulnerability. Callaway JA said, at 625 [43] - [44]:

"This was not a case of 'an accused person held in police custody without access to legal advice or other means of corroboration' (McKinney [1991] HCA 6; (1991) 171 CLR 468 at 476). The interview itself was recorded and, although the alleged threats were made in another room and 'off tape', the applicant did have access to his brother. Far from having no means of corroboration, the applicant's brother gave evidence confirming his account. So, too, this was not a case where the applicant's vulnerability derived from 'the isolation and powerlessness of a suspect held in police custody' (McKinney [1991] HCA 6; (1991) 171 CLR 468 at 474). It derived, if his account was accepted, from the danger to his brother. His vulnerability would have been the same if the alleged threats had been made to him in his own home.

It was correctly conceded, both at trial and on the hearing of the application for leave to appeal, that McKinney v R did not apply directly. The issue is therefore whether directions of the kind for which counsel contended were 'necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice' (R v Miletic [1997] 1 VR 593 at 605; reasons of Ormiston JA at [30]). I am not persuaded that they were. The factors calling for a direction in a case to which McKinney v R applies were absent, thereby breaking down the analogy, and a direction is not required simply because it is the word of the accused against the word of police witnesses."

Also see the observations of Ormiston JA, at 621 - 622 [28] - [29].

63 In the present case, the appellant's trial commenced on 17 March 2005. On the previous day, the learned Judge heard and determined an objection by the appellant's counsel to the admissibility of the videotaped records of interview. The ground of objection was that the interviews were involuntary. After hearing evidence from the appellant and the interviewing police officers, Detectives Rakich and Bethell, his Honour held that the records of interview were admissible. That ruling was not challenged before this Court.

64 The appellant's allegations in relation to the confessions, namely, that his admissions were untrue and had been made in consequence of his being confused and upset because of improper or unfair pressure from the police officers, were explored in detail in his evidence at trial. See [24] - [27] above. The learned Judge, in his summing up, reminded the jury of the appellant's allegations of improper or unfair pressure. His Honour said (at T351 - 352):

"The defence pointed to obvious signs of the accused's distress on the 20 November videos and of the accused's explanation of this in terms of a continuing emotional state brought on by the traumatic event and particularly of having been unable to save the deceased, couple [sic] with the stress, he said, the police put him under in the forms of the references by the police before the video - the first of the two 20 November videos - to evidence of the accused standing smoking by the end of the units in which the accused was staying, evidence of Higgins, of the accused asking questions of staff at the hotel about the investigations, of the weight the accused was under and of all the evidence pointing to him, of the deceased's family wanting the guilty person to be charged and of discouragement of the use of the mobile that the accused had brought with him, as well as discouragement of his access to a lawyer. All of these things, to repeat, were matters which were denied by the police when they were put to them.

There was also a further matter the accused said had placed stress on him of one of the officers slamming a hand into the desk in apparent impatience in the period leading up to the first interview, again a matter denied by the police officer.

The prosecution, of course, referred you to the video itself to assist you in evaluating whether the accused was placed under stress and, if so, whether the stress was enough to cause the accused to behave as he did in those videos and I will return to that in a moment.

There were references in the video to being treated like a person and to the accused not having any complaints and of not having been threatened or having had promises made to him. However the accused said that this was a reference to events in the videos themselves, not to the events that led up to the first video.

The defence pointed you to other evidence of distress at the time of the event at least, not unlike that being shown at that time of others, as testified to by Ms Tempra and Mr Higgins and of considering his account of his subsequent behaviour in light of your observations of him on the stand as he is, against what might be expected of someone so close and to the extent of trying to save someone in the fire involved in a significant and traumatic event.

The defence also pointed to evidence from the accused's girlfriend - that he appeared to fall asleep during the short telephone call on the night of the fire in the period immediately before it. The prosecution replied, of course, that he could have woken up; that he might not have stayed asleep.

The defence pointed to lack of other evidence linking the accused to the starting of the fire after a fairly thorough police investigation. The prosecution referred to the difficulty in fires of this sort in arriving at better evidence than the prosecution said would be put before you.

In all of this, again, let me remind you you must carefully evaluate all of the evidence you have before you, including demeanour, and apply to it your commonsense, as I have indicated, remembering the burden on the prosecution. It always remains on the prosecution to prove the matters beyond a reasonable doubt."

65 In my opinion, the circumstances of the present case did not require a McKinney warning or a direction in the terms alleged in ground 4. I am of that opinion for these reasons. First, the appellant's confessions were recorded on videotape. See s 570D of the Code. They were not uncorroborated confessional statements of the kind under consideration in McKinney. Secondly, the rationale for a McKinney warning lies in the special position of vulnerability of an accused to fabrication when he is involuntarily held in police custody without access to a lawyer or another independent person who might confirm his account. There is no suggestion, in the present case, that the appellant's confessions were fabricated. Thirdly, unlike in McKinney, the appellant's detention in police custody was not unlawful. Fourthly, the learned Judge held a voir dire and found that the appellant's confessions were voluntary and that ruling was not challenged before this Court. Fifthly, his Honour, in his summing up, referred to the appellant's allegations of misconduct by the police officers before he made the confessions, in the context of the appellant's case that the police officers' behaviour caused him to make admissions which were untrue. His Honour emphasised that the jury should evaluate carefully all of the evidence and that the burden was on the respondent to prove the matters in issue beyond reasonable doubt.

66 I am satisfied that a McKinney warning or a direction in the terms alleged in ground 4 was not necessary, in the circumstances, to avoid a perceptible risk of miscarriage of justice.

68 Section 24 of the Code provides:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

..."

"It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty."

70 In G J Coles & Co Ltd v Goldsworthy [1985] WAR 183, Burt CJ said, at 187 - 188, in relation to s 24 of the Code:

"Expressed without reference to the onus of proof, what s 24 of the Code requires, in my opinion, is simply what it says, namely that 'a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist'. The belief 'under' which the act is done must be honest, which is to say no more than it be held in fact; it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief ..."

Recently, in Aubertin v The State of Western Australia [2006] WASCA 229, McLure JA considered the nature of the test to be applied under s 24. Her Honour said, at [43] - [44]:

"For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.

However, I am persuaded by the line of authorities that exclude intoxication, whether by reason of alcohol or drugs, as a relevant factor in supporting (rather than negativing) reasonableness under s 24 of the Code. ... "

71 In Pacino (1998) 105 A Crim R 309, Kennedy J (with whom Wallwork and Steytler JJ agreed) held, at 319 - 320, that the operation of s 24 of the Code had not been impliedly excluded by s 266 of the Code and, in consequence, a defence under s 24 may be relied upon where a person has been charged with an offence contrary to s 266.

72 In the present case, the learned Judge directed the jury in relation to arson and murder, and also in relation to manslaughter. Counsel for the appellant raised with his Honour the issue of accident, but did not seek a direction in relation to mistake of fact. No such direction was given.

73 The appellant's written submissions in relation to ground 5, were these:

"34. The State's alternative case was that, if the jury were not satisfied as to the arson, then the Appellant's conduct in throwing a cigarette butt into the donga amounted to a s 266 Criminal Code case which would reduce the matter to manslaughter but not exculpate him completely.

35. Section 24 mistake of fact defence applies to section 266 of the Criminal Code: Pacino v R Unrep Sup Court, Lib No 980722 delivered 14 December 1998.

36. The jury ought to have been directed that, in the event the jury was not satisfied as to the arson but were satisfied as to the admissions in the video records of interview then they should consider whether or not the Appellant was acting under an honest and reasonable mistaken belief that the cigarette butt was not dangerous.

37. No such direction was given at all."

74 During the first interview the appellant said, relevantly:

"A. ... I just threw it and walked away. I don't know why I done it, though. I'm just - - -

Q. How much of the cigarette was left when you did that?

A. Probably a quarter.

Q. Why didn't you just throw it on the ground and step on it?

A. I don't know.

Q. Once you threw the cigarette in there, you're saying you didn't see where it went?

A. No. I just threw it in there and went back to my room, I think. I just - - -

Q. So you went back to your room?

A. Yes.

Q. If you didn't go back to your room then, where else would you have gone?

A. There was nowhere else to go.

Q. Do you have any knowledge in relation to what time it would have been when you threw the cigarette in?

A. No.

Q. What did you think was going to happen as a result of throwing the cigarette in?

A. I just - - I thought it had gone out at first. I didn't think anything would really happen, until it started burning. Then I panicked. Oh, shit (head in hands briefly)

Q. When did you see it start burning?

A. I don't know; probably 10 or 15 minutes later, I think. ...

...

Q. Your actions in regard to throwing the cigarette into that room: what do you have to say about that?

A. I don't know. I was drunk and stupid, I think.

...

Q. I'm saying that surely you must have realised that by throwing a cigarette into that environment, it had the potential to do some damage?

A. (No response)

Q. Would that be correct?

A. I don't know. As I said, I was drunk.

...

Q. ... One of the things we want to go over with you is: you say you've gone to the door.

A. Yeah.

Q. And that you've thrown a cigarette in.

A. Mm hm.

Q. I think you said it landed on the bed.

A. I'm not sure. I don't know why I done it.

Q. ... I put it to you that your story about throwing the cigarette in - - basically I'm saying the fire could not have occurred in that way; that you either actually did enter the room and that you've actually held either your lighter or the cigarette to the bedding to start the fire.

A. No, I definitely ...

Q. That's how you started it.

A. No. I definitely threw the cigarette in there - definitely. I can remember that. I don't know why. I don't know. I just wish I could work out why. This is the hard thing. No, it's not the hard thing.

Q. Did you believe the fire could have started from the cigarette going in there?

A. I don't know.

...

Q. And you threw the cigarette in the room?

A. In the room; yes.

Q. I think I asked you before - - yes; in relation to that.

A. Yes.

Q. Okay. And that by doing so, surely you realised the consequences that could have occurred as a result of that, and which have occurred as a result of that.

A. I was drunk, and I don't know why I done it. But I panicked and it got out of control. I couldn't stop it."

75 During the second interview the appellant said, relevantly:

"Q. Okay; and you were smoking at the time?

A. Yes.

Q. And what did you do?

A. Threw the cigarette in there, and went back into my room. I don't know why, though.

...

Q. Why throw it in there when you could have extinguished it here?

A. I don't know. ... I do not know. I was drunk. I don't know what my actions were, though.

...

Q. Okay. You've thrown a cigarette in there, and then you've walked back here?

A. And back to my room.

...

Q. You mentioned that you'd thrown a three-quarters, um, a quarter of a cigarette, and basically straight after that you've gone and got yourself another cigarette. So throwing the cigarette: it wasn't as if you were about to go to bed or something. You still wanted to smoke, so this is not a matter of just throwing your cigarette on the ground.

A. No.

Q. This was a deliberate throw into the room.

A. Yes.

Q. Am I correct?

A. Yes.

...

Q. ... when you threw the cigarette in there, you were intending to start a fire.

A. I don't know if I was or not.

Q. You don't know?

A. No.

Q. Well, what did you think was going to happen by those actions?

A. Fire.

Q. Fire?

A. Mm; but I didn't mean to do it. I don't know why I done it."

76 It is apparent that in the first interview there was one very brief statement by the appellant that he "thought [the cigarette] had gone out at first". He did not make any other statement to that effect during either of the interviews. (Indeed, as I have mentioned, the appellant's evidence at trial was that the admissions in the interviews were untrue and that he did not start or cause the fire.) In my opinion, even though there was some (very slight) evidence that the appellant believed that the cigarette in question had been extinguished, there was no basis in the evidence for the existence on his part of a reasonable belief to that effect. In the circumstances, it was unnecessary for the learned Judge to give a direction in relation to s 24 of the Code, and unnecessary for the respondent to exclude, beyond reasonable doubt, the operation of an honest and reasonable but mistaken belief by the appellant that the cigarette had been extinguished.

77 In any event, the jury found the appellant guilty of both arson and murder. It necessarily follows that they must have rejected the appellant's evidence at trial that he had nothing to do with the starting of the fire, and must have been satisfied beyond reasonable doubt that he deliberately caused it.

Application to add a further ground of appeal and adduce new evidence

79 At the hearing of the appeal, the appellant sought leave to add a further ground of appeal. The proposed further ground was:

"1. There was a miscarriage of justice in that the verdict of the jury in respect of the conviction was unsafe and unsatisfactory having regard to the new evidence that has emerged since the hearing of the trial, which evidence was not known, disclosed or available at the time of the trial or could [sic] reasonably have been discovered.

Evidence of John Marshall set out in his report dated 31 August 2006 annexed to the affidavit of Andree Marie Horrigan sworn 5 September 2006 in relation to the possible causes of the fire, the reliability of the 're-enactment' performed by police on 17 February 2004 and the probability of a lit cigarette butt igniting bedding material."

80 The appellant also applied for leave to adduce new evidence. The application, which is dated 5 September 2006, provides:

• leave to adduce new evidence either by affidavit or orally in support of grounds 2 and 5 of the appeal pursuant to section 40 of Criminal Appeals Act 2004; the summary of evidence contained in the report of Mr John Marshall dated 31 August 2006 annexed to the affidavit of Andree Marie Horrigan filed herewith."

81 The solicitor for the appellant swore an affidavit in support of the application for leave to adduce new evidence. The affidavit states, relevantly, that:

"2. Mr Patrick Hogan was briefed as counsel for the appellant at the trial.

3. I have spoken to Mr Hogan of counsel and confirm on the basis of my discussion with him that it was not for tactical reasons that an expert was not engaged to assess the State's evidence in relation to the cause of the fire prior to the trial."

82 After hearing the parties' submissions in relation to these issues, leave to add the further ground of appeal, and leave to adduce new evidence, were refused, with reasons to be published later. My reasons are set out below.

83 Mr Marshall has tertiary qualifications in engineering and business administration. He has professional experience in the forensic investigation of fires and explosions, metallurgical failures, motor vehicle accidents and thefts, and materials related matters. In his report dated 31 August 2006, relevantly:

(a) After referring to Mr Watson's evidence in relation to a possible electrical fault, Mr Marshall said:

"It would be the writer's view that in this instance there may well have been no physical evidence of an electrical ignition mechanism, however, the possibility that an electrical fault did cause the fire could not be ruled out due to the inability to fully examine the electrical installation given the severity of the fire."

(b) After referring to the evidence of Detective Senior Constable Tilley, Mr Marshall said:

" ... there is no objective basis for determining from the physical evidence the location of the fire seat given the very severe and extensive damage in the compartment. It is noted typically, steel bed frames in compartment fires that develop to the free burning stage (as was the case in room twenty five) will bow or sag mid-span. Such sagging is simply the unavoidable response of the softened steel members to the influence of gravity. That is to say, if the fire in a compartment is severe enough, any bed frame present will inevitably sag irrespective of where the fire started.

It is the writer's view that the extent of the damage in room twenty five precludes any reliable determination of the origin of the fire. To assign the proximate fire seat to one end of the bed or the other is in the writer's view guesswork or at best, a somewhat arbitrary estimate.

Detective Tilley went on to conclude his written report by stating (at 18.3) that he determined the fire to be deliberately lit due to his inability to 'locate any accidental causes'. Detective Tilley also concluded (at 18.2) that he could not 'determine the exact ignition mechanism'. Implicit in this conclusion is an absence of any evidence of a deliberate ignition mechanism although this is not stated by Detective Tilley.

It is [the] writer[']s view that in terms of the forensic or physical evidence, the absence of evidence of any accidental causes is not a proper basis for concluding a fire has been deliberately lit. In the absence of physical evidence of the fire cause it would not be unreasonable in the writer's opinion to classify the fire as 'cause undetermined'."

(c) As to the "demonstration burn", Mr Marshall said:

" ... the test arrangement depicted in the video fails to in any sense closely duplicate the actual conditions present at the time of the subject fire. ...

...

The writer notes with concern Detective Tilley's evidence in relation to the reconstruction where at page 218 he states, 'as you have seen from the tests, it is quite impossible to create a fire with a cigarette butt'. The writer strongly rejects the proposition. It is widely acknowledged that smoking in bed is ... very dangerous because of the possibility of falling asleep and the risk of the cigarette igniting the bedding. ..."

Mr Marshall then refers to various publications (including statistical data) in relation to fires caused by smoking materials igniting bedding or mattresses. He says that the conclusions drawn by Detective Tilley as to the possibility of a "cigarette butt ignition" were plainly incorrect.

84 In Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, Mason J said, at 675 - 676:

" ... it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial."

85 The evidence sought to be adduced from Mr Marshall was new evidence as distinct from fresh evidence. It would have been available to the appellant at trial if he had exercised reasonable diligence.

86 In the circumstances, Mr Marshall's evidence should not be admitted in the appeal unless his evidence persuades this Court that there has been a miscarriage of justice in the sense that the new evidence establishes the appellant's innocence of either or both of the charges of which he was convicted, or the new evidence raises such a doubt about his guilt that the verdict or verdicts in question should not be allowed to stand. See Lawless at 674 - 675; Georgiadis [2002] TASSC 58; (2002) 133 A Crim R 152 at 174 - 175 [72] - [73]. In considering whether, having regard to the new evidence, a miscarriage of justice has occurred, great weight should, in general, be attached to:

(a) whether or not a deliberate choice was made by the appellant's counsel at trial not to call evidence of the kind in question, particularly where a significant forensic or tactical advantage was obtained or sought to be obtained from the decision not to call the evidence; and

(b) the nature and probative force of the evidence called at trial.

See In Re Van Beelen (1974) 9 SASR 163 at 183 - 184.

87 In my opinion, the evidence sought to be adduced from Mr Marshall in relation to:

(a) the possibility of an "electrical ignition mechanism";

(b) the determination of the origin of the fire;

(c) the relevance of the "demonstration burn"; and

(d) the possibility of a "cigarette butt ignition",

does not demonstrate that the appellant should not have been convicted of arson and murder or that he should have been convicted of manslaughter rather than murder (assuming, favourably to the appellant, that the substance of Mr Marshall's evidence to that effect is otherwise admissible). The evidence does not raise such a doubt about the appellant's guilt that the verdicts should not be allowed to stand.

88 Further, the statement in par 3 of the affidavit sworn by the appellant's solicitor, to the effect that she has spoken to the appellant's counsel at trial and confirms, on the basis of that discussion, that "it was not for tactical reasons that an expert was not engaged to assess [the respondent's] evidence in relation to the cause of the fire prior to trial" is hearsay, and therefore inadmissible. In any event, the statement in par 3 is remarkable for its generality: the absence of any detail makes the statement uninformative, and it therefore carries little weight. Even if par 3 were admissible, that statement, combined with the evidence sought to be adduced from Mr Marshall, does not establish that the absence of Mr Marshall's evidence at trial gave rise to a miscarriage of justice in the sense I have described.

89 Finally, in this context, I should mention that, had the appellant's application to lead new evidence from Mr Marshall in relation to the possibility of a "cigarette butt ignition" been successful, his case would, on the face of it, have been extraordinary. As I have mentioned, the appellant denied at trial that:

(a) he had thrown a lit cigarette into donga C25 (or any other donga);

(b) the fire was started by a lit cigarette; and

(c) he had started the fire (either deliberately or accidentally).

The effect of Mr Marshall's evidence is, relevantly, that there is a real prospect that a fire may be ignited by a lit cigarette which has contact with bedding. Presumably, if Mr Marshall's evidence had been admitted, then the appellant's case would have been to this effect: he was not involved in starting the fire, and the admissions he made were untrue; if, however, his evidence of non-involvement were to be rejected, then he started the fire by throwing a lit cigarette.

90 For the reasons I have given, I joined with the other members of this Court in refusing leave to add the further ground of appeal and refusing leave to adduce new evidence.

• Background facts and the occurrence of the fire
• The appellant's statement
• The appellant's interviews
• The appellant's evidence at trial
• Demonstration burn
• Statutory framework
• Grounds of appeal
• Ground 2
• Ground 4
• Ground 5
• Application to add a further ground of appeal and adduce new evidence
• Conclusion