Davies v The Queen [2019] VSCA 66

EVIDENCE - Admissibility - Hearsay - Admission under business records exception without exhibiting document - Witness not having seen document - Evidence Act 2008 ss 48, 69 - Evidence inadmissible without tender of document - No substantial miscarriage of justice.

EVIDENCE - Admissibility - Coincidence evidence - Whether striking similarity in modus operandi required - Evidence Act 2008 s 98 - Tognolini v The Queen (2011) 216 A Crim R 188, distinguished; IMM v The Queen (2016) 257 CLR 300, R v Bauer [2018] HCA 40; (2018) 92 ALJR 846, applied.

EVIDENCE - Admissibility - Opinion evidence as to burn pattern - Witness experienced detective with three days' formal arson training - Evidence Act s 79 - Honeysett v The Queen (2014) 253 CLR 122, applied.

EVIDENCE - Admissibility - DNA evidence - No evidence of innocent transference - Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779, distinguished - Whether DNA evidence inadmissible due to failure to call every member of forensics team - R v Sing [2002] NSWCCA 20; (2002) 54 NSWLR 31, distinguished.

JUDGE'S DIRECTIONS TO JURY - Whether judge adequately related evidence to charges - Whether judge adequately warned jury against tendency reasoning - Whether adequate warning of identification evidence - Jury Directions Act 2015 ss 36, 37 - Agkul v R [2002] VSCA 222; (2002) 5 VR 537 distinguished - Whether charge to jury unbalanced against applicant - Whether charge unfair - Whether judge erred in not giving hearsay directions relating to police logs - R v Vincent [2002] NSWCCA 369; (2002) 133 A Crim R 206, R v Flood [1999] NSWCCA 198, Allen v R (2013) 39 VR 329, Walker v R [2014] VSCA 177 considered - Whether directions on inferences reversed the onus of proof - Knight v R [1992] HCA 56; (1992) 175 CLR 495, Peacock v R [1911] HCA 66; (1911) 13 CLR 619, Barca v R [1975] HCA 42; (1975) 133 CLR 82, R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, Mannella v R [2010] VSCA 357 considered.

VERDICTS - Whether judge erred in taking majority verdicts - Whether judge allowed sufficient time for deliberations - Whether judge pressured jury to hasten its verdicts.

TRIAL - Whether trial miscarried due to applicant being unwell and unrepresented - Whether trial miscarried due to comments suggesting applicant was in custody.

BIAS - Whether judge biased - Actual bias - Apprehended bias - Protracted pre-trial proceedings - Unrepresented litigant - Witness examination - Interactions with jury - Whether miscarriage of justice - No evidence of actual bias - Fair minded lay observer would not reasonably apprehend judge might not bring an impartial mind to case - Ground not made out - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 applied - Sloan (a pseudonym) v The Queen [2015] VSCA 64 applied - Sloan (a pseudonym) v The Queen [2015] VSCA 240 applied.

SENTENCE - Total effective sentence of 14 years 6 months' imprisonment - Non-parole period 12 years 3 months' imprisonment - Whether sentence manifestly excessive - Whether judge erred in not finding that applicant's autism spectrum disorder reduced his culpability - R v Verdins [2007] VSCA 102; (2007) 16 VR 269, DPP v O'Neill (2015) 47 VR 397 considered -Whether delay in prosecution a mitigating fact - Applicant resentenced to 12 years 3 months' imprisonment with non-parole period of 10 years 3 months - Incorrect presentence detention figure provided to judge by prosecution - Correct figure substituted.

Solicitor for the Victorian Director of Public Prosecutions

1 The applicant was charged on indictment with five counts of arson contrary to s 197(1) of the Crimes Act 1958 ('Crimes Act'). Specifically, it was alleged that the applicant intentionally set fire to and damaged: Mount Waverley Police Station on 20 January 2011 (charge 1); St Mary's Catholic Church Presbytery ('St Mary's') in St Kilda East between 20 and 21 January 2011 (charge 2); St Oswald's Anglican Church ('St Oswald's') in Ashburton on 27 January 2011 (charge 3); Tanner's Swiss Patisserie ('Tanner's') in Syndal on 31 January 2011 (charge 4); and Croxley Child Care Centre in Syndal on 3 February 2011 (charge 5).

2 Following a three month trial in the County Court, the applicant was convicted of each charge. He was sentenced to a total effective sentence of 14 years and 6 months' imprisonment, with a non-parole period of 12 years and 3 months. The applicant seeks leave to appeal both the conviction and sentence.

3 The applicant relies on the following grounds in support of his application for leave to appeal against conviction:

1. GROUND ONE ― The aggregate of all errors and prejudices (including individual particulars and submissions) did result in a miscarriage of justice (or a perceptible risk of same).
2. GROUND 2 ― The trial miscarried due to admission of Internet Exhibits (Youtube, FTM website).
3. GROUND 3 ― The trial miscarried due to further evidence being wrongly admitted.
4. GROUND 4 ― The convictions were unsafe and unsatisfactory, especially Charges #1, #2.
5. GROUND 5 ― The trial miscarried by a failure of trial Judge to give sufficient directions as to carefully explain which evidence related to which counts (and erred in identification directions).
6. GROUND 6 ― The trial miscarried due to inadequate Identification evidence warnings.
7. GROUND 7 ― The trial miscarried due to the unbalanced charge of the Judge.
8. GROUND 8 ― The trial miscarried due to (one or more) Davies being unrepresented, unwell and exhausted, autism, no equality of arms and facilities, communications delays/limits.
9. GROUND 9 ― The trial miscarried due to prejudicial evidence and comments such that it was likely apparent to the Jury that Mr Davies was in, or had been in, custody.
10. GROUND 10 ― Trial miscarried as Judge erred in the circumstantial evidence directions.
11. GROUND 11 ― The trial miscarried as the Judge was biased against accused. In the alternative, the particulars reveal an improper conduct of the trial that did combine to cause a miscarriage of justice.
12. GROUND 12 ― The trial miscarried due to the unlawful or unreasonable taking of majority verdicts, and/or due to the trial judge not accepting that the jury was at an impasse in its deliberations and/or due to the trial judge's comments regarding delays and the time taken by the applicant during cross-examination and/or due to comments by the trial judge seemingly hinting with judicial authority at the preferred verdict.

4 The applicant's sentence was constituted as follows:

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Other relevant orders: Sentenced as a serious arson offender.

5 The applicant relies on the following two grounds in support of his application for leave to appeal against sentence:

1. GROUND ONE ― the sentence imposed is manifestly excessive.

1. GROUND TWO ― the sentencing judge erred to apply incorrect pre-sentence detention.

6 The applicant represented himself at the trial and also on the application for leave to appeal. In support of the application for leave to appeal against conviction, and the application for leave to appeal against sentence, the applicant filed substantial written cases that contained detailed references to the evidence in the trial and to legal authority. In addition, he provided a lengthy supplementary written case in respect of his application for leave to appeal against conviction, and he also provided detailed written responses to the written cases of the respondent in respect of the applications for leave to appeal against conviction and sentence. Those documents contained a multiplicity of points on which the applicant relied in support of each of the grounds of the application for leave to appeal against conviction and the two grounds in support of the application for leave to appeal against sentence. In oral submissions, the applicant expanded quite eloquently in relation to his written submissions, and additionally raised further issues. In his written documents, and in oral argument, the applicant demonstrated an admirable grasp of the evidence at the trial and a commendable understanding of legal principle.

7 In these reasons, we endeavour to deal with each of the points that were raised by the applicant. However, that was a difficult task, given the very significant (if not vast) number of points raised by the applicant in his written and oral submissions, and the variegated nature of those points.

8 The applicant was born in July 1978. At the time of the offences he was unemployed, and he lived at 1 Yvette Drive, Rowville. Those premises were located on the north-east corner of the intersection of Yvette Drive and Clauscen Drive. The applicant was the registered owner of a white Mitsubishi Magna registered number WOT 962 ('the white Magna'), which, the prosecution alleged, was implicated in each of the offences.

9 The fire, that was the subject of the first charge, occurred between 11pm on Wednesday 19 January and 6.40am on Thursday 20 January 2011 at Mount Waverley Police Station at 338 Stephensons Road, Mount Waverley. As a result of the fire, damage was caused to the outside ventilation grille and to the surrounding surface on the southern side of the police station. The fire damage spread inside the office area to the south east corner of the police station, resulting in sooting to the walls and inside the wall cavity. There was also sooting on the back of the wall data panel and inside the wall panel. The wiring inside the wall cavity was burnt.

10 On the following morning, a forensic chemist, Rachel Noble, attended the scene. She noted the pattern of burning on the vent, and the surrounding concrete strip and grass, that was consistent with the presence of burning flammable liquid. Moderately evaporated petrol was detected on the grass and in the soil adjacent to the ventilation grille. There was no direct burning or fire to the inside of the building or the offices in the police station. There was no sign of forced entry to the premises. Ms Noble expressed the view that petrol had been poured or squirted onto the grass and into the air vent and the brickwork, and then ignited. She considered the probable source of ignition to be a match or a lighter.

11 The fire, that was the subject of charge 2, was alleged to have been committed between 10.30 pm on Thursday 20 January and 7.00 am on Friday 21 January 2011 at St Mary's at 208 Dandenong Road, St Kilda East. On the evening of 20 January 2011, Father Barry Moran, who resided at the presbytery, went to bed at 10 pm. He gave evidence that he was not aware of any fire damage to the exterior of the premises at that time. On the next morning, at 7.00 am, he noticed that the windows in the French double doors at the rear of the premises on the south side of the presbytery looked smoky. When he went outside to investigate, he observed signs of a fire. Detective Senior Constable Woodcock, who attended, observed that an accelerant had been poured at the base of the double timber doors on the ground level at the balcony area at the rear of the premises. He observed significant charring and burn marks on the double doors.

12 The fire, that was the subject of the third charge, occurred at about 1.30 am on Thursday 27 January 2011, when St Oswald's at 100-108 High Street, Ashburton sustained fire damage to the downstairs lower outside rear doorway on the western side of the premises. The doorway was at the foot of a set of stairs that led to a covered walkway between the church and the hall. The doorway provided access to a room under the main level of the church hall. When police attended at 3.30 am, they observed the fire damage, and also observed a plastic bottle with coloured liquid standing in the doorway. The bottle was next to the fire damage on the door. The contents of the bottle were subsequently tested and found to contain petrol. Later on the same morning, a forensic chemist, Mr George Xydias, attended the scene. He noted that it did not appear that any flammable or combustible liquid had been poured onto the bottle or the doorstep. He also noted that the remnants of an intensely heat affected firelighter cube/block with a whitish interior were present on the step beside the bottle.

13 Subsequently, the bottle, that was found at the point of ignition, was tested for DNA. That testing produced a partial profile that matched the DNA profile of a reference sample taken from the applicant. Accordingly, he was not excluded from being a contributor to the DNA that was located on the bottle. A statistical analysis established that the applicant was at least 46,000 times more likely to be the source of the DNA that was found on the bottle than if the DNA had originated from another person chosen at random from the Australian Caucasian population.

14 Tanner's, which was damaged by the fire that was the subject of charge 4, was located on 232 Blackburn Road, Syndal. At about 1.30 am on 31 January 2011, the premises sustained severe fire damage. The forensic chemist, Mr Xydias, who attended the scene, observed that the point of origin of the fire was at the rear of the premises in the vicinity of the doorway at the store room of the premises. Extensive burning had occurred throughout the eastern store room. Based on the pattern and extent of burning at the floor level in the vicinity of that doorway, Mr Xydias expressed the view that it was probable that a flammable or combustible material had been used to ignite the fire. He took a sample from immediately outside the step of the door, and later testing proved it to be kerosene. He considered that the fire was likely to have been ignited directly by a match or by a cigarette lighter.

15 The fire, that was the subject of the fifth charge, occurred shortly after 2.00 am at Croxley Child Care Centre that was located in Hunter Street, Syndal. The fire commenced against the southern exterior wall of the main pre-school building at the southern end of the property. There was severe damage caused to two central rooms along the southern side of the structure. Mr Xydias, who subsequently attended the scene, concluded that the point of origin of the fire was at the base of the wall beneath the windows on the southern side of the building. A sample of soil was taken from that area and found upon analysis to contain petrol.

16 At the time of the fire the police had, for some time, had the applicant under observation. At 2.14 am, smoke was observed by police to be coming from the end of Hunter Street. At 2.16 am, the applicant was observed running out of the laneway at the southern end of Shirley Avenue along the footpath and to his vehicle. Shirley Avenue is a short distance west of Hunter Street. The applicant's vehicle then sped off. He was followed by police. A short time later, at 2.20 am, the applicant was intercepted on the Monash Freeway near the Blackburn Road entry ramp. He was arrested and taken to Glen Waverley Police Station.

17 After the applicant's arrest, the police searched his home at 1 Yvette Drive, Rowville. Police located a number of items, including a blue cigarette lighter (in the applicant's vehicle), vehicle documentation showing the applicant to be the registered owner of the white Magna, and a Fujitsu laptop computer. The computer was analysed and found to contain material on which the prosecution relied to establish a motive by the applicant to light each of the fires. In particular, it was alleged that the material demonstrated that the applicant harboured a deep seated hatred of society, and that he was motivated to commit each of the arson attacks as an act of vengeance against society.

18 The proceedings before the County Court judge were the subject of very lengthy pre-trial argument, in the course of which the judge delivered 19 written rulings. On two occasions, the applicant unsuccessfully sought to challenge rulings of the judge by way of interlocutory appeal to this Court.[1] The trial itself was punctuated by numerous arguments and objections raised by the applicant in the course of evidence.

19 At trial, the prosecution relied, principally, on seven pieces of evidence to establish the guilt of the applicant.

20 First, the prosecution relied on recordings by a CCTV camera that had been fixed outside the home of the applicant. Those recordings depicted the times at which the applicant departed from his premises, and returned to those premises, relative to the time at which each fire was lit. The recordings also demonstrated that, on each relevant occasion, the applicant was by himself when he left his home and returned to it.

21 Secondly, the prosecution relied on data from a tracking device that had been fitted to the applicant's white Magna from 19 November 2010. The product of the tracking device was tendered in evidence, and the jury was provided with a spreadsheet containing a chronology and narrative of that information. The device particularly established the time at which the applicant's vehicle was in a static position proximate to the location of each of the five premises which were the subject of arson, at times which (the prosecution alleged) were close to the probable times at which the fires were ignited. The prosecution relied on the tracking device to demonstrate that each fire was lit during the early hours of the morning, that the applicant's vehicle at that time was usually parked in a side street close to the place of the fire, and that the vehicle was usually stationary only for a short period of time at that location. In addition, the prosecution relied on the tracking data to establish the route taken by the applicant leading to the location of the fire and departing from that location to return home. In particular, the data demonstrated that on most occasions the applicant took a direct route from his home to the location of the fire, and from the location of the fire to his home.

22 Thirdly, after the second fire (St Mary's on 20 to 21 January 2011), the State Surveillance Unit ('SSU') was engaged to undertake visual observation of the movements of the applicant. The surveillance was part of an ongoing police investigation that was referred to as 'Operation Navarre'. The prosecution relied on evidence of observations of police members, who participated in the SSU operation, to support the tracking device evidence that the applicant was at or near the location of the fires, that were the subject of charges 3, 4 and 5, at the probable time at which they were lit.

23 Fourthly, the prosecution relied on forensic evidence that the applicant could not be excluded as a contributor to the DNA found on the bottle that was located close to the point of ignition of the fire that was the subject of charge 3 (the fire at St Oswald's on 27 January 2011).

24 Fifthly, the prosecution relied on the generally similar way in which each fire was commenced, in order to support the inference that the same person had been responsible for each such fire. In particular, the prosecution relied on the fact that each fire was initially ignited in a relatively secluded part of the premises outside the access point, that the source of ignition of each fire was external to the premises, that each of the fires was lit in the early hours of the morning, and that accelerant was present at or near the point of ignition of each fire.

25 Sixthly, the prosecution relied on the evidence of motive, demonstrated by the content of three YouTube videos, that were downloaded from a YouTube address 'http://www.youtube.com/user/SeerTravisTruman'. The prosecution case was that the applicant operated or was materially connected with an internet website called 'Seer Travis Truman: the Forbidden Truth' at 'Seer Travis Truth TV'. The site contained messages which the prosecution alleged were delivered by the applicant under the pseudonym Travis Truman. In the three YouTube videos, his face was covered by a balaclava, and he wore sunglasses. In the videos, he provided instructions on committing arson, and explained that the commission of arson was legitimate because an arsonist is a tortured victim of society, who has been subjected to abuse and victimisation by society, so that society brings arson attacks on itself and deserves them. The prosecution particularly relied on the fact that, in the videos, the speaker (who the prosecution alleged was the applicant) made statements to the following effect:

• the arsonist should use either a box of matches or a cigarette lighter, and should use accelerant such as petrol, fuel or kerosene;
• the 'smart arsonist' does not have anything on his person or in his vehicle that could link him to the arson;
• the arsonist needs to have his own vehicle and to ensure that he is not being followed;
• the arsonist should use a timing device, meaning a cigarette or dry rag on which a small amount of accelerant is poured;
• the arsonist should leave the scene immediately because arsonists who are caught are those who remain around to watch their handiwork.

26 Seventhly, the prosecution relied on coincidence reasoning under s 98 of the Evidence Act 2008 ('Evidence Act'), to establish, first, the improbability that each of the five fires were not lit by the same person, and, secondly, the improbability that the accused could be present at or near the scene of each fire but not be the cause of each of them. In respect of the first proposition, the prosecution relied on the similarities in the way each of the fires was said to have started, the close geographical proximity of the fires that were the subject of charges 2, 3, 4 and 5, and the close temporal connection between each of the five fires, occurring as they did in a 14 day period between 20 January and 3 February 2011.

27 Before turning to each of the grounds relied on in support of the application for leave to appeal against conviction, it is convenient to summarise the evidence relied on by the prosecution in relation to each of the five charges.

Prosecution case ― charge 1 (Mount Waverley Police Station Fire, 20 January 2011)

28 In January 2011, Sergeant Bernard Postma was stationed at Mount Waverley Police Station. The police station was located on the intersection of Stephensons Road and William Street, Mount Waverley. William Street intersects with Mummery Street, which is approximately 50 metres from the police station.

29 On 19 January 2011, Sergeant Postma was rostered for the afternoon shift from 3.00 pm to 11.00 pm. Before leaving the premises in the evening, he activated the alarm, secured the front door and checked the premises to ensure that no damage had been done. On returning to work at 6.40 am on the next morning (20 January), he noted that the police station smelt strongly of fire. He checked under a desk where the watch house keeper worked and found a large amount of burnt smoke material along the wall. He noted that the station had lost telephone, fax and internet server connections.

30 On 20 January 2011, Leading Senior Constable Shane O'Sullivan was rostered to commence work at Mount Waverley Police Station at 7.00 am. When he entered the station at 6.40 am, he noted a faint odour of burning which seemed to be coming from the area of the watch house. He had a look around but could not detect anything. Subsequently, he ascertained that the telephone lines at the station were not working. Accordingly, he inspected the telecommunication junction box that was located behind the desk on the wall of the watch house. He saw that there was a black sooty substance coming out of the right hand side of the box, and he could smell that that was where the odour was coming from. Subsequently, when tradesmen arrived, the lid of the box was removed, and Constable O'Sullivan noted that the wires at the base of the box were charred and blackened. He looked through the access hole to the wires, and could see the external brick wall of the station. Constable O'Sullivan then went outside. He noted that the grille on a vent on the east side of the station was blackened and charred, and that the area of grass directly in front of it was also blackened and charred.

31 On 20 January 2011, Robert Epifano, a senior technical officer with Prime Electrical and Data, attended at the police station. Sergeant Postma directed him to where the fire had occurred. Mr Epifano examined the telephone system and noted that the mainframe was charred and blackened. Upon opening the mainframe, he observed that the copper wire was fused together. At that stage he suspected that there had been an electrical fire, so he called an electrician who worked for the company. In the meantime, Mr Epifano went outside the police station to a point directly opposite where the Telecom mainframe was located. He noted that there was an air vent in that position. It looked as if the fire had commenced at that point, and that it had possibly been caused by an accelerant. The fire had extended about half a metre up the wall. He considered that, in order for the fire to have such intensity, it would have required a trigger which would not have been electrical.

32 Mr Troy Morgan, an electrician and data technician, attended at the police station at the request of Mr Epifano. He determined that there had not been any electrical fault. He examined the vent on the side of the wall outside the premises and noted the burn marks around it. He also noted that the fire had burnt quite quickly, and he concluded that some accelerant must have been used in order for the fire to burn in such a way.

33 Mr Adam Gelfe, a team manager at the Law Enforcement Liaison section of Telstra Corporation, gave evidence that was directed to the time at which there was an interruption to services to Mount Waverley Police Station on the morning of 20 January 2011. He stated that as part of its business records, Telstra keeps records as to when data services are interfered with or stop working. He stated that he was informed that the business records of Telstra, showed that on 20 January 2011 there was an interruption to services to Mount Waverley Police Station at 1.35.03 in the morning. As we will later explain, under ground 3, the evidence of Mr Gelfe was inadmissible and should have been excluded.

34 Ms Rachel Noble, a forensic officer at Victoria Police Forensic Services Centre ('VPFSC'), attended the police station at 12.30 pm on 20 January 2011. She observed a patch of burnt grass on the outside of the building. She noted that the damage went inside the building, and that there was sooting and heat effects in the wall cavity directly behind where the burnt area was on the outside. She collected samples to determine whether there was the presence of flammable fluid. As a result of subsequent analysis, petrol was detected on the sample. Ms Noble stated that the burn patterns, and the soot around the vent and on the wall, were consistent with the burning of flammable liquid vapours. She noted direct burning or fire damage in the wall cavity but not inside the building. Ms Noble considered that the burn patterns, and the pattern of fire damage, were consistent with the fire starting outside the premises, and the heat and soot spreading into the wall cavity through the vent and the backs of the bricks. She considered that the fire had started in the outside area, assisted by the presence and use of petrol.

35 CCTV footage from the camera fixed outside the applicant's home in 1 Yvette Drive, Rowville was tendered in evidence. It demonstrated that, on 19 January 2011 at 10.54 pm, the white Magna arrived at the applicant's home and parked in a parking bay on the east side of Clauscen Street, which intersected with Yvette Street. A man, who was wearing white runners, alighted from the vehicle. Two hours later, at 12.49 am, a man who was alleged to be the applicant, was depicted coming out of his residence, standing next to the driver's door of the car and then going back inside the house. He was wearing a dark long sleeved top, blue jeans and white runners. Ten minutes later, at 12.59 am, a man with short hair and solid build, who was alleged to be the applicant, wearing the same clothing, got into the driver's seat of the vehicle and drove off. Subsequently, at 1.39 am, the footage depicted a man walking alone from the garage in the Yvette Drive home around the bush in the direction of the gateway to the main entrance to the residence.

36 The tracking device, that was attached to the white Magna, recorded the vehicle travelling southbound in Clauscen Drive, Rowville at 12.59 am. The vehicle then drove northbound along Westminster Drive, westbound along Wellington Road, westbound along the Monash Freeway, and then exited the Monash Freeway off ramp at Forster Road, Mount Waverley at 1.09 am. The vehicle then travelled along Forster Road and Waverley Road to Stephensons Road. It entered Mummery Street at 1.14 am, and was stationary in that street between 1.15 am and 1.24 am. It then drove along a direct route to the applicant's home in Yvette Drive, becoming stationary there from 1.39 am.

Prosecution case ― charge 2 (St Mary's Fire, 20-21 January 2011)

37 Father Barry Moran was the parish priest at St Mary's at 208 Dandenong Road, St Kilda between 2000 and 2016. The church was located at the intersection of Dandenong Road and Westbury Street. It was possible for a pedestrian to enter the premises from Dandenong Road, Westbury Street or Alma Park.

38 As we have mentioned, on the evening of Thursday 20 January 2011, Father Moran went to bed at about 10.00 pm. He got up at about 6.30 am to 7.00 am on the next day. When he went downstairs, he noticed that the windows in the French doors looked smoky. He went outside, and he observed that there was charring, scorching and blistering to the bottom of the French doors to the presbytery on the ground level. The doors were approximately 50 to 60 metres from Dandenong Road.

39 Father Moran contacted St Kilda Police Station. Detective David Woodcock, a detective senior constable at St Kilda CIU, attended the premises at 10.00 am. He observed significant charring and burn marks on the double doors to a foyer area, and the concrete on the ground adjacent to the doors. He considered that they appeared to be the result of an accelerant having been poured on or near the doorway. There was a slight slope in the concrete, which was consistent with an accelerant having been poured, and pooling a short distance from the French doors, thus resulting in charring on the concrete.

40 An extract from the recording by the CCTV camera outside the Yvette Drive premises was tendered in evidence. It depicted the white Magna leaving the applicant's premises at 9.23 pm on 20 January 2011. The prosecution produced evidence to establish that, at 10.03 pm, the applicant purchased approximately 14 litres of fuel from the BP Service Station on Marine Parade, Elwood, the purchase price of which was $20.16. Sergeant Woodcock obtained a copy of the receipt for the purchase of the fuel, which was tendered in evidence as exhibit E. He also obtained a disc containing footage from the CCTV of the store taken on 20 January. The disc was tendered in evidence, depicting the applicant wearing a black long sleeved top, blue jeans and white runners. It depicted a white vehicle at the premises at 10.11 pm. Mr Preyas Patel, the trainee manager of the service station, gave evidence. He identified exhibit E as a receipt produced by the service station. He confirmed providing to Sergeant Woodcock a copy of the disc taken from the CCTV cameras on 20 January for the period between 9.30 pm and 10.45 pm.

41 Subsequent analysis of the tracking device placed the applicant's vehicle in the area of St Mary's on eight occasions in a three hour period on the evening in question, between 9.52 pm and 12.16 am. On the last occasion, the vehicle was stationary in Dandenong Road outside St Mary's for 10 minutes from 12.16 am until 12.27 am. The vehicle then drove off, travelling directly to the Yvette Drive premises, arriving there 24 minutes later at 12.51 am. The CCTV footage at the applicant's premises then depicted the applicant walking into the house alone, wearing the same clothing as that depicted in the Elwood BP CCTV footage.

Prosecution case ― charge 3 (St Oswald's Fire, 27 January 2011)

42 St Oswald's was located at 100 High Street, Glen Iris. It is situated on the corner of High Street and Seaton Street. High Street runs in an east-west direction, and Seaton Street runs south from High Street. Mont Iris Avenue is parallel to Seaton Street and is one street further to the east of it.

43 In January 2011, Reverend Kenneth Hewlett was the vicar of the church. He did not attend at the church premises on 26 January. He was last at the premises between 5.00 pm and 6.00 pm on 25 January.

44 On the evening of 26 January 2011, Sergeant Bradley Guy and the informant, Detective Senior Constable Steven Wallace, were in an unmarked police vehicle in conjunction with surveillance that was being conducted that evening. At 2.40 am on 27 January, they attended at St Oswald's and conducted an external search of it. At the rear of the church was a large door. They each noticed a bottle, at the base of the door, and that the bottle had fluid in it. There was also evidence of charring or burning at the top of the bottle and against the door close to the top of the bottle.

45 On the morning of 27 January, at the request of police, Reverend Hewlett attended the premises. He noted that there was some burnt rubbish on the concrete floor. He also observed the bottle with brown coloured liquid in it, and a fire mark on the door that led to a room in which gardening equipment was stored. Reverend Hewlett stated that he was in the habit of walking around the premises each evening to make sure that everything was in order. When he had walked around them on the evening of 25 January, the bottle and the rubbish were not there, and there was no sign of any burning to the door. A few days before that event, there had been a storm, and some water had flooded under the croft of the church. As a consequence, windows had been left open in the premises to air them out. Accordingly, if a person wished to effect entry into the building from the outside, that person could easily have done so by entering through the open windows. He also said that in order to access the doorway that was burnt, it was necessary to walk down a driveway, and then down some stairs which were beyond some archways. It was not possible to see the doorway, that was the subject of the fire, from the driveway. At the relevant time, Reverend Hewlett was living in premises that were near the church. He then had two dogs. He said that during the night in question, he heard the dogs barking between 1.00 am and 3.00 am, and he got up and let them into his house.

46 As we have noted, Mr Xydias attended the premises on 27 January. He observed fire damage against the exterior base of the door. There was a small amount of burning to the timber and the paintwork at the base. He noted the presence of the bottle and also partly burnt remains of a firelighter. On subsequent examination, the firelighter was shown to be a white spirit-based material that was commonly used. The contents of the bottle were found to be petrol. Mr Xydias concluded that the point of origin of the fire was at the base of the door from the exterior. There was nothing accidental about the fire. It was due to deliberate ignition by a match or cigarette lighter. He did not consider that there was any accelerant poured around the area. Mr Xydias examined the building and there did not appear to be any evidence of a break-in.

47 Ms Irene Jelic, a forensic officer within the biological sciences group at VPFSC, conducted an analysis of DNA on the bottle that was found at the scene. A sample was taken from the outer surface of the bottle and compared with a biological reference sample taken from the applicant. On testing of the sample taken from the bottle, there was found to be a partial DNA profile that matched the applicant's DNA profile. On application of the statistical likelihood ratio, the applicant was 46,000 times more likely to be the source of DNA within the biological sample taken from the bottle than if that DNA originated from another person chosen at random from the Australian Caucasian population.

48 The CCTV footage at the Yvette Drive premises at 10.56 pm on 26 January 2011 depicted a person walking along the pavement towards the house, disappearing briefly, but then re-appearing to cross the street before disappearing again. The person then came out of the house, got into the vehicle and drove off. Mr John Thompson, who was then a surveillance operative with Victoria Police, was conducting surveillance on that evening. He identified the person depicted in the CCTV footage as the applicant. At 11.00 pm, Leading Senior Constable Thomas Prpic, who was also performing surveillance duties, observed the white Magna park on the east side of Clauscen Street outside Yvette Drive. He observed the applicant get out of the driver's seat wearing blue jeans and a white tee-shirt. He walked out of view, but then reappeared at 11.04 pm. The applicant at that time stood briefly beside the vehicle and bent over. He then disappeared from view. Leading Senior Constable Jackson, who was also conducting surveillance, saw the applicant 'doing squats' at the rear of the vehicle. The CCTV footage, at 12.39 am on 27 January, depicted a man outside the premises with short hair, and wearing a dark long sleeved top, blue jeans and white runners.

49 Senior Constable Jackson next saw the applicant's vehicle at 1.00 am in High Street near Stephensons Road, Mount Waverley. It was then travelling in a westerly direction. Senior Constable Jackson followed the vehicle to Huntingdale Road and pulled alongside it at the red lights. When he did so, he recognised the applicant as the driver of the vehicle.

50 Senior Constable Jackson next saw the vehicle in High Street at 1.05 am, and he subsequently saw it again at 1.20 am parked in Mont Iris Avenue approximately ten metres north of Dent Street. He saw the applicant get out of the vehicle and start to walk north down the centre of the roadway, a couple of paces from the vehicle. Senior Constable Jackson, who was then travelling west along Dent Street, did a U-turn, and returned to travel east. As he did so, he saw the applicant standing on the corner of Dent Street in the shadows. The applicant then walked away from that position and started to walk back towards his vehicle. By the time Senior Constable Jackson had returned again down Dent Street, the applicant's vehicle had moved off.

51 At 1.25 am, Senior Constable Ray Cook, who was also conducting surveillance duties, observed the unoccupied white Magna parked on the kerbside facing north in Seaton Street, Ashburton. At 1.27 am, Leading Senior Constable Prpic was on the north side of High Street Road walking east towards Seaton Street. He saw the white Magna turn right from Seaton Street into High Street Road and drive off. Senior Constable Prpic was unable to see who the driver was, but he confirmed that there was one person only in the vehicle.

52 The evidence from the tracking device demonstrated that the white Magna had been stopped in Seaton Street for about six minutes from 1.17 am until 1.23 am. It then showed that the vehicle travelled directly from Seaton Street to Yvette Drive arriving home at 1.40 am. The CCTV footage fixed outside Yvette Drive showed the vehicle arrive at 1.41 am and drive straight into the garage.

Prosecution case ― charge 4 (Tanner's Fire, 31 January 2011)

53 Tanner's was situated at 232 Blackburn Road, Syndal, a short distance south of the intersection of Blackburn Road and High Street Road. It was located between Matthew Street and Tricks Court, which each ran from the west to east from the east side of Blackburn Road. Pimm Court is a short street that ran in a northerly direction from Matthew Street. Shirley Avenue and Hunter Street each ran south from Matthew Street and were respectively about 50 metres and 100 metres from Tanner's. There was a laneway behind the shops that fronted Blackburn Road and which ran between Tricks Court and Matthew Street.

54 In January 2011, Mr Peter Schache was a baker and pastry chef and the owner of Tanner's. On Sunday 30 January, he worked at the store until it closed at 1.30 pm. At about 2.10 am on 31 January, Mr Schache received a telephone call from his father, as a result of which he attended the store at 2.30 am. He observed fire trucks attending and a lot of smoke. He identified photographs which depicted the fire damage at the rear of the premises.

55 In January 2011, Daniel Tanner lived about 300 metres from Tanner's 'as the crow flies'. At 1.45 am on 31 January 2011 he was awake. He smelt an unusual smoke odour. Having checked his own home, he walked down Matthew Street, and noticed that, as he did so, the odour became stronger. He saw plumes of smoke when he got to the car park that was near the rear of Tanner's. Accordingly, he telephoned triple zero at 1.54 am, but was told that a fire brigade was already on the way.

56 Ms Effie Portelli visited the home of her sister-in-law at Mount Waverley on the evening of 30 January 2011. When she and her daughter departed from there at 1.40 am, they noticed smoke in the sky. When they were opposite the Syndal shops on Blackburn Road, she passed Matthew Street, and turned right into Tricks Court. At that time, the flames were 'as high as the building', and she could hear a lot of sounds like explosions. She telephoned the emergency number triple zero at 1.50 am, and was told that she was the second person who had called. A short time later the fire brigade attended.

57 As we have mentioned, Mr Xydias attended the premises on 31 January and conducted an examination. He noted damage in the vicinity of the rear storeroom and door. He considered that the point of origin, or the seat, of the fire was next to the doorway in the south east corner at the rear of the bakery. The ignition point was at the right hand corner of the door. He noted spalling of the concrete ― that is, cracking or breaking and flaking of the concrete due to heat. On examining the premises internally, he noticed that the fire had progressed in the doorway. He also detected what he believed to be flammable or combustible material in the doorway. He took a sample from the soil and the charred debris from outside the rear door. On testing, it proved to contain kerosene. Mr Xydias said that there was no indication that the fire had resulted from an electrical fault or that it was accidental in origin. He considered that the fire was likely to have been ignited directly by a match or a cigarette lighter.

58 An extract from the CCTV footage outside the Yvette Drive premises depicted the white Magna reversing out of the driveway at 9.45 pm on 30 January. At 10.05 pm, the applicant was observed by Leading Senior Constable Rodney Heinan (a member of the SSU) to park the vehicle in Rosstown Road, Carnegie and to walk into an internet café.

59 At 11.28 pm, Detective Sergeant McGibbony, the team leader of the SSU operation on that night, observed the applicant enter the driver's seat of the vehicle. Subsequently, McGibbony followed the applicant's vehicle to Highbury Park. There the applicant parked his vehicle, and walked into the vicinity of the playground equipment. At 12.26 am, Leading Senior Constable Heinan observed the applicant return to his vehicle, open and close the boot, and then enter the driver's seat and drive off. About ten minutes later, the vehicle returned to Highbury Park and parked again in Gareth Drive. The applicant exited the driver's seat and entered the park. He then returned, opened his boot and closed it, entered the driver's seat, and drove away at 12.52 am. The vehicle was then followed, but contact was lost at about 1.11 am while the applicant's vehicle was travelling south in Stephensons Road, Mount Waverley.

60 At 1.19 am, Detective Sergeant McGibbony observed the applicant's vehicle exit Pimm Court, Glen Waverley and travel west in Matthew Street, with the applicant driving. Sergeant McGibbony followed the applicant, and at 1.34 am observed his vehicle to park in the garage of 1 Yvette Drive, Rowville. CCTV footage that was tendered at the trial denoted that at 1.31 am (CCTV footage time) the applicant had returned to his home address. The CCTV footage depicted the applicant holding what appeared to be a large (two litre) plastic soft drink bottle.

61 The product of the tracker device noted that at 1.12 am the applicant's vehicle had driven eastbound in Matthew Street crossing the intersection of Shirley Avenue. At 1.13 am it was stationary in Pimm Court. It remained stationary until 1.17.22 am. It was next detected at 1.17.53 am travelling south in Blackburn Road. From there it traversed a direct route to the applicant's premises at Yvette Drive, Rowville.

Prosecution case ― charge 5 (Croxley Child Care Centre Syndal Fire, 3 February 2011)

62 Croxley Child Care Centre was located at 37-39 Hunter Street, Syndal. The child care centre was next to the railway line. Adjacent to the railway line was a walkway. It provided access to Shirley Avenue and to Hunter Street, each of which ran in a northern direction from the walkway.

63 The fire, that was the subject of charge 5, occurred a short time before 2.15 am on 3 February 2011. Mr Xydias, who attended the premises later that morning, observed that the fire had originated outside the southern end of the building against the southern exterior wall that was adjacent to the driveway. The fire had caused significant damage to several of the rooms that were on the southern side of the building, and on that side the windows had either melted or burnt away. There was no indication that anyone had broken into the premises. Mr Xydias was of the view that the point of ignition was a couple of metres from a unit attached to the building. He observed that there was severe burning down to the ground level. Mr Xydias considered that the fire was likely to have been ignited directly by a match or cigarette lighter. A sample of soil was taken from the area which Mr Xydias considered to be the point of ignition. On analysis it was found to contain petrol.

64 Sergeant Paul Stevens was the team leader of the group performing surveillance duties in relation to the applicant on the evening of 2 and 3 February 2011. At 9.47 pm on 2 February, Sergeant Stevens observed the applicant to park his vehicle in Edinburgh Street, and walk to Doherty's Gymnasium. The applicant was then wearing a black singlet and black shorts, and he was carrying a red Eco shopping bag. At 10.33 pm, he was observed to exit the gymnasium, enter his vehicle and move off. The applicant was the driver and sole visible occupant of the vehicle. At 10.48 pm, Sergeant Stevens observed the applicant's vehicle parked outside the Yvette Drive house. He saw the applicant exit the vehicle and move inside the house.

65 At 12.50 am on 3 February, the CCTV showed the applicant walking from his residence to the car that was parked on the street. He was then wearing a dark long sleeved top, blue jeans and white runners. He entered the vehicle and drove off. Between 1.31 am and 1.34 am, the tracker device detected the vehicle to be stationary in a car park behind a shopping centre in Holmesglen. At 1.34 am, Sergeant Stevens followed the vehicle to Myorra Court, Chadstone. The vehicle drove to the end of the court with its lights on. It then drove out of the court and turned right into the car parking area between Warrigal Road and Myorra Court. He observed the applicant get out of the vehicle and walk east on the footpath that ran along the south side of the railway line. The applicant was wearing a black long sleeved top, blue jeans and white runners. At 1.39 am, the applicant returned to his vehicle and drove off. At 1.42 am, Detective Senior Constable Myers, who was also attached to the SSU, observed the applicant exit his vehicle that was parked in Batesford Road near the intersection of Power Street. The applicant walked into a laneway leading to the rear of a strip of shops. At 1.42 am, the applicant exited the laneway, returned to the vehicle and drove off. The tracking device detected the applicant's vehicle to be stationary at Ashwood Reserve Carpark between 1.48 am and 1.55 am. He then left the reserve and drove directly to Shirley Avenue.

66 At 2.10 am, Sergeant Stevens observed that the applicant's vehicle had turned into Shirley Avenue which was a dead-end court. He saw the applicant get out of the vehicle and continue to walk into the bowl of the court. At the end of the court there is a laneway that leads to a further path that runs east-west along the railway line. At 2.16 am, Sergeant Stevens observed the applicant running out of the laneway into the bowl of Shirley Avenue, and get into his vehicle and drive away at a fast speed.

67 Leading Senior Constable Adam Kane was also attached to the SSU team on the evening of 2 February to 3 February. At 2.16 am, he made his first observation of the applicant. He was informed that the applicant had parked his vehicle at the southern end of Shirley Avenue, Glen Waverley and exited the vehicle, to walk towards Syndal Train Station. Leading Senior Constable Kane parked his vehicle on the west side of Blackburn Road and immediately walked towards the Syndal Train Station along the walkway that led immediately north of the railway line in a western direction. On his left were the rear of the addresses backing onto the railway line, and on the right was the retaining wall next to the railway line. Leading Senior Constable Kane walked in an easterly direction along the footpath. When he was about 40 metres from Hunter Street, he observed a male run from the north end of the street into the walkway. The male ran directly towards him in a westerly direction. He was wearing a black long sleeved top, blue jeans and white runners. As the male ran towards Senior Constable Kane, he looked up, slowed and then baulked, and reduced his speed to a shuffle to continue in a westbound direction. From the time that the man looked at Senior Constable Kane, he maintained eye contact with him until they passed shoulder to shoulder. Senior Constable Kane positively identified the man as the applicant from the photograph that had been shown to his team at the commencement of the shift. The photograph was tendered in evidence.

68 After they passed each other, Senior Constable Kane kept the applicant under observation and saw him make a right hand turn to be northbound at the end of Shirley Avenue. Senior Constable Kane relayed that information over his radio. He could hear Sergeant Stevens saying that he could observe the applicant go back to his vehicle, and the vehicle move off immediately. As Senior Constable Kane continued to walk to Hunter Street, he could see and smell a small amount of smoke over a timber fence. He noticed that the smoke was coming from under a weatherboard building that appeared to be a house. He could hear crackling of debris catching alight. Accordingly, Senior Constable Kane ran to the front door, believing that it was a house. He banged and kicked on the front door.

69 Senior Constable Kane then realised that the building was in fact a child care centre. He telephoned triple zero on his mobile telephone. By that time, the building was completely alight. A short time later the fire brigade arrived.

70 In his evidence, Senior Constable Kane stated that he positively identified the applicant before the applicant had passed him, about ten metres east of his position on the walkway. He said he could clearly tell that the person, who he saw, was the applicant, because the photograph of him was a very good likeness.

71 At approximately 2.15 am on 3 February 2011, Detective Sergeant Stormonth, of the Arson and Explosives Squad, received notification of the fire that occurred at the child care centre in Syndal. He was then in company with Detective Sergeant Scott Barnes. They monitored the radio, and intercepted the applicant driving the white Magna on the Monash Freeway just past the Blackburn entry ramp. At that point, the applicant was arrested and cautioned. He was subsequently conveyed to Glen Waverley Police Station. Detective Sergeant Barnes took possession of the applicant's clothing, which included a dark long sleeved upper garment and a pair of white runners.

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

72 As noted earlier, the applicant relies on 12 grounds in support of his application for leave to appeal against conviction. For obvious reasons, we will defer considering and determining ground 1 (aggregation of errors), until we have analysed each of the other grounds.

Ground 2 ― admissibility of Internet exhibits

73 By his second ground, the applicant contends that the trial miscarried due to the admission of certain internet exhibits. The exhibits consisted of three YouTube videos, a short excerpt from a further video and extracts from a website entitled 'Forbidden Truth Media'.

74 As we have mentioned, the YouTube videos show a man wearing a balaclava and sunglasses. The man calls himself 'Travis Truman' or 'Seer Travis Truman'. His voice may have been disguised by the use of technology. The prosecution relied on an array of evidence in support of its case that the person appearing in the videos was the applicant. That evidence included a blue cigarette lighter found in the applicant's car, a balaclava and a pair of sunglasses found in his bedroom and a silver cigarette lighter found in his bathroom. Each of these items was said to be worn or depicted in one or more of the videos or another short video excerpt featuring 'Travis Truman'. In addition, evidence was given of PayPal, banking and telephone records which it was said showed that the applicant was responsible for a website which the speaker in the three YouTube videos described as 'my website'. Those links were made through a Fujitsu laptop computer and a Toshiba hard drive found in the applicant's bedroom.[2]

75 It will be necessary to set out the above 'linking' evidence at greater length when considering ground 4 (unsafe and unsatisfactory conviction). For present purposes, it suffices to say that the trial judge ruled that the YouTube videos were relevant because it was arguable that the applicant was the author of those videos and the man appearing in them. That ruling is not sought to be challenged. Instead, under ground 2, the applicant contends that the YouTube videos ought to have been excluded from evidence on a number of different grounds. In that context, the applicant contends that the trial judge overstated the probative value of the videos. It will be necessary for that purpose to have regard to some of the supporting evidence upon which the judge relied in finding that the videos were relevant.

76 The applicant makes more limited submissions in relation to the website extracts. It will be convenient to defer consideration of that aspect of ground 2 until after the arguments concerning the videos have been addressed.

77 The YouTube videos constituted three of a total of 44 videos uploaded to the internet, copies of which were discovered on the Fujitsu laptop. The shorter excerpt video, which was relied on only to show the sunglasses worn by the speaker, was part of another of those 44 videos.

78 The videos had been uploaded to YouTube. The titles of the three videos were 'Expert Arson Insight', 'Arson Insight Part I' and 'Arson Insight Part II'. Each of the videos shows the disguised man in close-up, addressing the camera. 'Expert Arson Insight' commences with a title page containing the words in capitals 'Seer Travis' Truth T.V. Series 2', surrounded by images including pictures of Carl Williams, Ted Bundy (an American serial killer) and a man with a gun to his head. In the video which follows, the speaker describes the 'tools' of 'the arsonist', including leather gloves (which he is wearing and shows to the camera), matches or a 'more reliable' cigarette lighter. He refers also to accelerants such as petrol or kerosene, which he says are not necessary (giving the lighting of bushfires as an example).

79 The speaker goes on to say that 'all arsonists are just simply the victims of society ... of extreme child abuse, bullying, subjugation and victimisations by their society'. He continues:

In actual fact, he is using arson to strike and hit his society back, as a form of justice, of vengeance, his own personal justice against his society that has wronged him. And this actually is justice, folks, it is a form of justice and vengeance, that the individual arsonist often savours.

80 The speaker then refers to two 'psychological types' of arsonist. Both are 'trying to get back' at society, but the first is only trying to damage property without trying to harm anybody, whereas the second, being 'much more victimised and abused', lights fires in the hope that they will kill people. The second type of arsonist is said to lack the initiative or courage to kill people face to face but 'really is, in his mind, a serial killer'. The video concludes with an expression of hope that it has been found 'informative', and with a reference to the speaker's website for 'more information'.

81 In 'Arson Insight Part I', the speaker states that 'the arsonist' is a 'tortured victim creation of society' and is 'like a serial killer' because he 'is attacking his enemy, society, and trying to do it harm and damage'. The speaker says that arsonists 'have every right' to take such action. He repeats the statements about two 'types' of arsonist and says, as to the second type:

Now, this type of arsonist, well ... he is motivated by much deeper rage, but even so if he was to burn hundreds of human beings to death with no remorse, and he would go out and do it again ... he has still every right to do this ... he's just reflecting his life experiences as shown by his lie based society. ... Society is guilty ... of heinous genocides, and is in no moral position to pass any legitimate judgment, let alone punishment, even on this class ... of arsonist.

82 In this video, the speaker goes on to mention the 'equipment' an arsonist needs to attack society 'and possibly murder human beings via arson attacks'. He says that the person cannot take taxis or public transport because they often have cameras and are traceable. Instead, he should use his own car, ensuring that it is not followed and that no police tracking device is installed on it. He should also make 'timing devices'. He then describes the construction and use of such a device.

83 'Arson Insight Part II' continues from the previous video, repeating the last part of the material before describing how the timer described earlier will work in practice. The speaker advises 'you should never stand around and watch because this is how most arsonists are apprehended by their society'. Later, he says:

You should also never ever return to the scene of the crime or ... have anything in your home or connected with you, that could ever be identified, not only with the making of the timing device but with the actual crime scene. Doing things this way will ensure optimum revenge on society experience for ... many people.

84 The speaker suggests 'maximum caution' in returning to the scene of a fire, and says that a nearby train line might be a good way of observing 'your handiwork'. The video concludes:

I hope that that has been instructive. Whether or not you are an arsonist or perhaps you are a student studying criminology, or ... for just your personal informational needs, I hope that this video has been quite informative on the subject of arsons. However, at the same time, I really couldn't care less what you - whether or not you do these things or ... whether or not you find any value in this video. I am making this video for my benefit, for my reasons and I am going to post this video, okay, as I see fit. Okay. Now, my final word is, is that society brings these attacks on itself and it absolutely deserves them. The individuals who undertake these actions have got every right to do so and society is ... a rotten, vile, disgusting system of ... arsehole citizen slaves who absolutely deserve whatever criminals thrust their way.

The speaker again concludes with a reference to 'my website' for 'more information'.

85 The judge identified three purposes for which the prosecution sought to adduce the evidence of the videos. First, it was submitted that the videos gave instructions as to modus operandi, especially about how not to get caught when committing arson. Secondly, the prosecution sought to establish that the motive for the speaker on the videos was to exact retribution or revenge upon society for what it was said to have done to the speaker, in particular that the speaker had been a victim of the evils of society. Finally, the evidence was said to show that the speaker had an interest in and support for the crime of arson.

86 The judge determined that the evidence was circumstantial evidence rather than tendency or coincidence evidence, as the applicant had argued. In that regard, he relied on a number of cases involving Commonwealth terrorism offences, namely Benbrika v The Queen,[3] Elomar v The Queen,[4] Fattal v The Queen[5] and Higgins (a pseudonym) v The Queen.[6] The judge noted that the applicant had argued that these cases were of little relevance because in each of them an element of the offences involved a particular state of mind, whereas in the present case the issue in dispute was identity rather than any state of mind or intent. The judge accepted that the distinction was correctly drawn but held that the cases nonetheless established general principles that had application in the present case. The judge held, relying on the above cases, that evidence of motive may involve a general animosity towards a particular country or society. The judge held that 'the expressions of the man in the balaclava when he speaks [of] revenge and retribution and why arson is justified are words that give significant insight into the accused's motive to commit the crimes'. The judge held that it was well open for the jury to consider that the man in the balaclava was the applicant and that he was someone who says that he has been hurt and damaged by society and society must therefore pay the price. The judge stated that the fact that it was open to the jury to conclude that the accused was the man in the balaclava speaking on the YouTube videos elevated the probative value of the evidence to a very high level indeed.

87 The judge then turned to the question whether the evidence was tendency evidence within the meaning of the Evidence Act 2008. He held that the prosecution was not seeking to prove that the applicant 'had a particular tendency ... to act in a particular way' within the meaning of s 97(1). Rather, the prosecution was seeking to prove that the accused made three videos about arson and uploaded them to YouTube. The purpose of proving that the accused made the videos was so that when the prosecution presented other evidence, it could inform the jury that the probability that he in fact lit the fires was increased by reason of the fact that he had a motive of revenge against society. In addition, if the jury were satisfied that the applicant was the speaker on the videos, the features of some of the fires that aligned with the video instructions or modus operandi added to the probabilities that the applicant was the arsonist. The YouTube evidence was a piece of circumstantial evidence, not being led for tendency purposes. The judge stated that the evidence allowed the jury to pull together a range of pieces of evidence so as to draw the conclusion beyond reasonable doubt that the applicant was the arsonist in one, some or all of the fires, rather than calling on tendency reasoning. As such, the requirements of s 97 of the Evidence Act did not arise for consideration.

88 The applicant had sought to have the evidence excluded, in the alternative, by operation of s 137. He had argued that the probative value of the evidence was low and insufficient to outweigh the unfair prejudice of the overall look, tone and words of the videos. He argued that the videos merely discussed arson and the motivation of arsonists as 'amateur criminology'. He also argued that the speaker referred to other persons and was not speaking of himself and his own interests. Further, the applicant submitted that the three videos had been 'cherry picked' from many others that did not have any aspect of motive for arson in them at all. He submitted that the same applied to the whole website which was said to cover many topics unconnected with criminal motives or activity.

89 The judge considered these arguments to be of little moment and to amount only to points about the weight of the evidence which should be put to the jury. He also considered that the submissions significantly underplayed the words and intent of the videos. The judge pointed out that, at the end of the 'Arson Insight Part II' video, the speaker states: 'I hope that that has been instructive ... I hope that this video has been quite informative on the subject of arson'. The speaker then went on to say that he could not care less if it was of any value because he was making the video 'for my benefit, for my reasons'.

90 The judge also considered that the time gap between the present offences and the uploading of the videos did not diminish the probative weight of the videos, as the applicant had contended. The times involved were months if not weeks, whereas in Elomar, the gap was one of many years.

91 The judge concluded that, by reason of the purposes of motive, interest in arson and to a lesser extent modus operandi, the YouTube videos had significant or very high probative value in proving that the applicant was the arsonist in one, some or all of the fires. He then turned to consider the question of unfair prejudice. The applicant submitted that unfair prejudice attached because the speaker was in a balaclava and the content was at times extreme. The judge held that, in his view, the jury would quickly come to see that the fact that the speaker was wearing a balaclava was to avoid identification, rather than because he was a person who committed all manner of violent crimes. He held that any prejudice that flowed from the disconcerting appearance of the man in the video could be ameliorated to a large degree by direction. Further, any remaining prejudice was not of a kind or dimension that meant that the very significant probative value of the evidence did not outweigh the danger of unfair prejudice.

92 The judge then considered whether unfair prejudice arose as a result of the content of the videos. He noted that there were individual lines used that were 'problematic' and which could be said to give rise to a degree of unfair prejudice, but held that none were sufficient for the evidence of that particular line to be excluded. He described the high point of this as being when the speaker referred to two types of arsonists, and made it clear that the 'serial killer' type of arsonist was well justified because the evils of society were such that society had in effect brought the calamity upon itself.

93 The judge held, taken in context, these references were not so prejudicial as to require the evidence to be excluded. He held that the jury would well understand that the speaker was making the point that the evils of society are such that arson that takes lives, or the arsonist who intends to take life, are still justified. The jury would not conclude that the speaker intends to take lives or has characteristics of a serial killer, rather that the speaker was endeavouring to give an informative overview of the types of arsonists. The judge noted that the speaker said at the end of one video 'I hope you found this video informative'.

94 The judge declined to exclude the evidence by operation of s 137. He held that for the same reasons, the discretion in s 135 was not engaged.

95 Finally, the judge noted that, if he was asked to do so, he would give the jury a firm direction not to engage in tendency reasoning in relation to the videos. He would further direct the jury not to be disconcerted or distracted because the speaker wore a mask and referred to serial killers, and that the sole purpose of the evidence was to establish that the accused had a motive, an interest in arson and support for it, and to establish aspects of the modus operandi spoken about in the videos.

96 Out of an 'abundance of caution' the judge also ruled that, if the evidence was properly characterised as tendency evidence, he would have ruled that it was of very significant probative value and that this value substantially outweighed the prejudicial effect on the applicant, such that the evidence would not be excluded by operation of ss 97 and 101 of the Evidence Act.

97 There were several aspects to the applicant's submissions under this ground. It is convenient to set them out briefly at the outset. In short, the applicant submitted that:

(a) the YouTube evidence ought to have been characterised as tendency or coincidence or context evidence and the terrorism cases relied upon by the judge were distinguishable in that regard;

(b) the videos did not establish that the speaker was referring to his own motive, rather than that of others;

(c) the probative value of the videos was low because:

(i) there was insufficient evidence to link the videos to the applicant through material on the Fujitsu laptop found in the applicant's bedroom;

(ii) there was a 'temporal gap' between the creation of the videos and the offences;

(iii) the motive articulated in the videos was too generalised and vague to connect it with the offences; and

(iv) the modus operandi material could describe almost any fire and should not have been admissible in relation to all charges in any event;

(d) the videos were unfairly prejudicial; and

(e) the videos ought to have been admitted, if at all, only in edited form.

98 It is convenient to consider these arguments in turn.

99 The applicant submitted that the videos amounted to tendency evidence. He pointed to the alleged similarity between the offences and the modus operandi in respect of both the actions and state of mind of an arsonist as described in the videos. In addition, he submitted that an interest in arson was itself a tendency or propensity, and that a motive of lighting fires as a result of perceived injustices of society was effectively the same as a tendency or propensity to light fires.

100 The applicant submitted that the cases relied on by the judge were distinguishable because they involved offences where the relevant state of mind or motive of the accused was an element of the offence. In particular, the cases required the Crown to show that the accused was a member of a terrorist organisation or had engaged in conduct relating to a terrorist act, which involves proof of the accused's state of mind with respect to the terrorist element of the relevant offence. In addition, the speaker in the videos addresses the motives of other persons, rather than his own.

101 Section 97 of the Evidence Act, which contains the 'tendency rule', applies to evidence adduced 'to prove that a person has or had a tendency ... to act in a particular way, or to have a particular state of mind'. In respect of the prosecution's reliance on the video evidence for the purpose of establishing motive or an interest in arson, the tendency asserted by the applicant is a tendency to have a particular state of mind. In respect of the use of the evidence to show elements of modus operandi_,_ the tendency is to act in a particular way. The cases relied on by the judge, which the applicant seeks to distinguish, concern the 'state of mind' limb of tendency evidence.

102 Benbrika concerned charges of membership of a terrorist organisation and related offences. It was argued that the trial judge ought to have warned the jury not to reason that, because the applicant had possession of videos in which people were beheaded, he was likely to be the kind of person who would commit acts of that kind.[7] Reliance was placed on s 398A of the Crimes Act, which formerly provided for the admissibility of propensity evidence. This Court rejected the argument that the evidence of the videos was led as evidence of a propensity to commit offences of the nature charged. Instead, the evidence was tendered 'as direct proof of the actual offences charged'.[8] The whole point of the evidence was that possession of the videos was a mark of membership of a terrorist organisation. Such possession could be used, along with other evidence, 'to infer a willingness to engage in just such conduct'.[9]

103 The distinction drawn in Benbrika between evidence being led by way of propensity and evidence led by way of direct proof of an element of the actual offence is illustrated by subsequent cases. In Fattal, which concerned an alleged conspiracy to do acts in preparation for or planning of a terrorist act, evidence was admitted of two recorded conversations in which the accused had expressed 'thanks to Allah' for the fact that factories were closing, the Black Saturday bushfires had occurred and Melbourne's water storage was 'empty', commenting 'these filthy people they are coming down ... hard, by Allah'.[10] The Court did not address the possibility of tendency reasoning. It held instead that motive was an integral part of the Crown's circumstantial case of intent, and the remarks were powerfully relevant to that issue.[11] The Crown had advanced the importance of motive on the basis that, without evidence of motive, a rational jury might well not be persuaded that an Australian citizen would engage with others to undertake acts preparatory to a suicide attack on an army barracks. Knowledge that the accused despised Australian non-Muslims as 'filthy people' and exalted in the perceived decline of Australian society, was a powerful reason for thinking that his actions and intention were as alleged.[12] The Court accepted this reasoning.

104 In Elomar, the question was whether evidence that an accused had attended a camp whose purpose was to train militant Islamists to fight was admissible on a charge of conspiracy to do acts in preparation for a terrorist act. For that offence, the Crown was required to prove, among other things, that the accused intentionally entered into an agreement with at least one other person and did so intending that a terrorist act would be committed.

105 The New South Wales Court of Criminal Appeal explained tendency evidence as a 'stepping stone' providing the foundation for an inference that, because a person had a tendency to act in a particular way or to have a particular state of mind, the person acted in conformity with that tendency or their state of mind conformed with the tendency, respectively.[13] The Court accepted that the evidence in issue was capable of being seen as tendency evidence, by providing the foundation for an inference that the accused had a particular state of mind at a time after he attended the training camp.[14] However, the preferable use of the evidence did not involve tendency reasoning at all. The Court explained:

A state of mind, unlike conduct, is not necessarily a series of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a 'tendency' to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning.

Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference).[15]

106 On this basis, the evidence was direct proof that the accused 'had a state of mind that supported violent Islamic Jihad' in 2001-02, and there was no reason to think that he did not continue to have that state of mind until the time of the alleged conspiracy in 2004.[16] This involved no tendency reasoning.

107 In Higgins, the accused was charged with possessing a thing in connection with assistance in a terrorist act. The 'thing' was a particular magazine. The evidence in question consisted largely of recorded conversations in which the accused was said to speak in various ways of his support for 'radical Islam', 'jihad' or 'violent jihad'.[17] The applicant in Higgins contended that the evidence could only be admitted if it satisfied the test for tendency evidence.

proof of a connected series of events, not necessarily closely contemporaneous in a temporal sense to the act charged, but which evince a particular continuing state of mind may be admissible for purposes other than for tendency reasoning. The applicant's argument is not assisted by the possibility that some of the evidence may also support tendency reasoning.

... If the state of mind to be proved by the series of events, even if the events have no nexus to the charged act, is relevant to one or more of the elements of the charge to be proved, such evidence may be admissible as circumstantial evidence in the conventional way in which such evidence is frequently admitted. It may be evidence of a continuing state of mind, motive, purpose, intention, or may be relevant for contextual purposes. It is not admissible only as tendency evidence.[18]

109 The trial judge in the present matter was correct to apply the reasoning in these cases to the question of admissibility of the YouTube videos. The evidence was sought to be led, not because it showed that the applicant had a tendency to have a particular state of mind, but because it was direct evidence that he had that state of mind, namely a belief that arson was justified because those that committed it were victims of society and had every right to seek vengeance on that account.

110 The above cases are not to be distinguished on the basis that they concerned proof of elements of the offences charged. That formed no part of their reasoning. The question in each case, as here, was one of relevance as part of a circumstantial case. In that context, the evidence was admitted as direct evidence relevant to a fact in issue in that case, rather than as tendency evidence. The same applies to the present case.

111 We observe that in Parachoniak v The Queen,[19] which was a culpable driving case, Priest JA expressed dissatisfaction with the reasoning in Elomar and suggested that direct proof of a continuous state of mind would ordinarily depend upon tendency reasoning. Priest JA stated that, if the reasoning in Elomar was to be applied in other cases, it should be confined to those 'where states of mind in the nature of religious or political (or similar) kinds of belief are important'.[20] Maxwell P disagreed, holding that the question in each case was whether it was open to draw the inference that a state of mind was held continuously.[21] The third member of the Court, Kyrou JA, expressed no opinion on the point.[22]

112 It is not necessary for us to resolve this difference of opinion, or to decide whether this Court should decline to apply the reasoning in Elomar beyond the class of cases described by Priest JA. That is because the state of mind of the applicant as alleged by the prosecution in this case falls squarely within the category of political or similar beliefs. The belief that persons wishing to commit arson are entitled to do so in order to revenge societal mistreatment of them cannot properly be distinguished for these purposes from the belief in 'violent Islamic Jihad' in Elomar.

113 The applicant also contended that the alleged motive, being one to harm society in general, was not specific to the offences in question. However, that did not mean that the prosecution case relied on tendency reasoning. We will return to this issue in the context of considering the probative value of the video evidence.[23]

114 The above analysis applies also to the 'interest in arson' purpose of adducing the videos, to the extent that this adds anything to the 'motive' purpose. Both descriptions are aspects of the state of mind or belief of the speaker in the videos, which were relevant in the manner we have described.

115 The modus operandi purpose of the evidence is in a slightly different position. As discussed below, we consider the probative value of the evidence for that purpose to be more limited. It was not, however, tendency evidence. The prosecution did not seek to show by reliance on the video evidence that the applicant tended to act in a particular way in respect to the lighting of fires. It sought only to show that, to some extent, he had taken his own advice in committing some of the offences.

116 For these reasons, the YouTube evidence was properly treated as direct evidence rather than tendency evidence. It is not necessary to say more about a further submission made by the applicant characterising the evidence as coincidence or 'context' evidence. For the reasons already given, the evidence was direct evidence of motive.

117 Next, the applicant also submitted that the YouTube speaker was referring to the views or motives of other persons, not himself. This submission misses the point that the speaker expresses his own view that arsonists have every right to commit arson in revenge for the wrongs of society. This point of view, if the jury accepted that the speaker was the applicant, provided strong evidence of a motive on his part for committing arson.

118 The applicant also sought to challenge the attribution of motive to the speaker on the basis that the prosecution had 'cherry picked' from among the videos, 41 of which were not concerned with arson at all. It was submitted that the videos were criminological or philosophical in nature and made 'for information purposes'. The applicant tendered extracts and images from some of these other videos. There is no substance in these submissions. The fact that the applicant (if the jury were satisfied he was the speaker) addressed other topics on other occasions, using similar language while not referring to arson or arsonists, does not deny that he made the statements about arson in the videos on which the prosecution relied. If those statements were to be understood in the light of other material advanced by the defence, that was a matter for the jury. It did not affect the relevance or admissibility of the videos in issue.

119 The applicant next challenged the trial judge's conclusion under s 137 of the Evidence Act that the probative value of the video evidence outweighed the danger of unfair prejudice. The applicant contested the probative value of the videos on several grounds.

120 First, it was submitted that the judge had exaggerated the strength of the evidence linking the applicant to the videos. It was submitted that evidence of files on the Fujitsu laptop in various states of development and corresponding to material in the videos was not evidence that the laptop files were the origin of that material. It was submitted that there was no evidence that the applicant owned, possessed, used or had exclusive access to the laptop, and that there was evidence of the laptop being used at times when the tracking evidence showed the applicant's vehicle to be in use. This included during a trip to a petrol station, recorded on CCTV, and another trip to a gym; these occasions were said to be inconsistent with the argument that the applicant had exclusive use of the laptop. The applicant also submitted that the gloves, balaclava, cigarette lighters and sunglasses were not proven to be the same items as shown in the relevant videos. It was submitted that there was no evidence that the applicant ever viewed the videos or the other materials on the laptop. Various other points were made along similar lines.

121 These submissions cannot be accepted. The YouTube videos were relied on for the purpose of establishing motive, an interest in arson and aspects of modus operandi. They had no probative value in relation to those matters at all unless the jury were first satisfied that the speaker was the applicant. The matters relied on by the applicant in this context go only to that anterior, independent question. The assessment of probative value of the videos required that it be open to the jury to be satisfied that the speaker was the applicant, but assuming that connection to have been made, the focus is then on the probative value of the videos as statements made by the applicant. None of the points made by the applicant go to that latter question. Instead, they were all matters for the jury in the course of deciding whether or not the speaker in the videos was the applicant. That issue is dealt with under ground 4. It suffices to say for present purposes that it was well open to the jury to conclude that the applicant was the person appearing in the videos.

122 Secondly, the applicant submitted that there was a temporal gap between the making of the videos and the offences. He referred to a gap of nearly 3 months between the uploading of the videos and his arrest and submitted that there was no 'gap' at all in Elomar where the alleged conspiracy lasted until only days before arrest. These submissions misconceive the significance of the evidence in the two cases. Proof of continuity of a state of mind depends, among other things, on the time that elapses between the two events in question. The time of arrest is irrelevant to that inquiry. In Elomar, there was a gap of years between the accused's attendance at the training camp and the conspiracy. The judge in the present case was correct to identify the gap in this case as being considerably shorter. The inference of continuity of the applicant's state of mind was well open.

123 Thirdly, the applicant contended that the motive identified in the videos was too general in character and too vague to stand as proof of a motive to carry out the specific offences. It was pointed out that the videos say nothing about attacks on bakeries (for example). Nor does the speaker say that all arsonists are victims of child abuse. These submissions must also be rejected. In the first place, the targets of the present offences can readily be seen as places of symbolic or practical value to society (a police station, a church, a church presbytery, a commercial retail premises and a child care centre). But in any event, the speaker articulates a justification for arson in general. The fact that the speaker believes that arson is fully justified as an act of revenge against society is highly probative of itself. The applicant's arguments only posit things that were not said on the videos which, had they been said, would have elevated the probative value even higher. These arguments do not deny the significant probative value of the evidence.

124 Finally, the applicant submitted that the modus operandi evidence was so general that it could have described almost any fire and that, in any event, it should have been admissible only in relation to fires where the same modus operandi was alleged. There is force in the argument that the videos were of quite limited value in terms of modus operandi. The judge acknowledged that their probative value in this respect was reduced. This was also reflected in his charge, in which he directed the jury that the only purpose for which the videos were relied upon was as evidence of motive or an interest in arson. Although the judge had earlier told the jury that part of the prosecution case was that there were similarities in the way the fires were lit, spoken of by the man in the YouTube videos, overall the modus operandi use of the videos did not add very much to their probative value.

125 But s 137 addresses the probative value of the evidence as a single issue. It does not call for a weighing of probative value against prejudicial effect by reference to each of several purposes for which the evidence is sought to be led. In other words, it would be wrong to isolate the probative value of the videos as evidence of modus operandi (or by reference to any other specific purpose for which the evidence is sought to be led) and then to weigh the probative value of the evidence for that specific purpose, taken by itself, against the danger of unfair prejudice. That would fail to apply the single balancing test for which s 137 provides.

126 It is a separate question whether the videos were admissible as evidence of modus operandi in respect of all charges. In our view, they were. To the extent that aspects of the modus operandi articulated in the videos were present at one fire, that evidence was relevant to that fire. The fact that the same aspect of the modus operandi was absent elsewhere was part of the context for considering the evidence as a whole. If anything, it was favourable to the applicant that the modus operandi was not uniformly revealed in the offences. It would have been entirely artificial, and unfair to the applicant, to direct the jury that the conduct described in the videos could be considered only in respect of the charges where that conduct actually occurred.

127 No error has been shown in the judge's treatment of the probative value of the videos.

128 The applicant next contended that the trial judge had failed to take proper account of various aspects of the videos which it was said gave rise to unfair prejudice. He relied in particular on the photographic montage that commences the 'Expert Arson Insight' video, which he said depicted serial killers Robert Wagner, Ted Bundy and Carl Williams, as well as a man with a pistol to his head. In addition, as the applicant pointed out, the videos contain abusive statements directed at society and its institutions. There are statements firmly endorsing the murder of members of the public by arson. The applicant also emphasised the dark imagery of the videos, including the menacing tone of the speaker and the use of the balaclava and sunglasses.

129 There was a risk of unfair prejudice arising from this material, but it should not be overstated. Even if the jury recognised the faces in the opening graphic and discerned a link to serial killers, the relevance of that depiction seems to go no further than the statements in the video that some arsonists are like serial killers. The pictures are otherwise unexplained and are shown for no more than five seconds. To the extent that the videos contain statements directed against society, they were undoubtedly prejudicial, but the prejudice arose from the probative value of the statements (as explained above) and cannot be characterised as unfair.

130 A greater risk of unfair prejudice arises from the speaker's endorsement of murder by arson and the employment of the disguise. These features give the videos a particularly sinister character. In particular, the applicant was not charged with having caused death or endangered any person and the speaker's articulation of a justification for such conduct was capable of giving rise to unfair prejudice.

131 In our opinion, however, the risk of such unfair prejudice as we have identified was outweighed by the significant probative value of the videos, and the risk could further be ameliorated by direction. In the event, the judge directed the jury as to the use of the videos to establish a motive by way of a belief in the use of arson as a justified means of revenge or retribution against society, and warned the jury against reasoning that the applicant was the kind of person who commits crimes or any particular crime. The jury was directed not to let the confronting nature of the videos overwhelm their consideration of the issues in the case or to allow prejudice or bias to influence their deliberations. While this direction could have been more specific as to the risk of unfair prejudice, this would also have served to highlight the potential prejudice, and so could have been counterproductive. No more specific direction was sought and, in the circumstances, we consider that the direction was adequate to guard further against that risk.

132 For these reasons, the probative value of the videos outweighed the risk of unfair prejudice and the judge was correct not to exclude them from evidence under s 137.

133 Finally, the applicant submitted that the videos ought to have been tendered in edited form so as to omit those parts giving rise to unfair prejudice. He criticised the trial judge for not having addressed this possibility.

134 This submission is without foundation, for two reasons. First, in his written submissions as to admissibility at trial, the applicant submitted that 'the videos cannot be fairly edited' and that the 'prejudice and the parts the Crown wish to lead are intertwined'. He further submitted that editing would give rise to a danger that the jury would speculate that what was removed was prejudicial. He subsequently raised the possibility of editing, but only after the judge had delivered his ruling. Secondly, and in any event, the judge did consider in his ruling whether particular lines should be excluded and decided that no line was sufficiently prejudicial to justify that course.

135 In our view, the judge was correct not to admit the videos in edited form. As the applicant submitted at trial, the prejudicial material was heavily intertwined with the probative evidence and there would have been a greater risk of unfairness in editing it out.

136 The applicant submits that the trial judge failed to give reasons for ruling that the 'Forbidden Truth Media' website extracts were admissible. He further submitted that the evidence should have been excluded under s 137.

137 The website material included a page containing a link to a PayPal account which the prosecution submitted was set up by the applicant. It contained a pictorial headline 'banner' of which a copy was found on the Fujitsu laptop, along with other variations of the design, apparently indicating the development of the banner used in the website. Along with other evidence on the computer linking it to the applicant, this evidence was adduced to show that the applicant was the creator of the website which the speaker in the videos referred to as 'my website'.

138 The judge referred to the website material in his ruling regarding the YouTube videos. He did not give reasons why the website material was admissible. However, he expressly ruled that 'the portions of the website identified by the Crown that they wish to put before the jury that links to the YouTube or interlinks with the YouTube, is admissible'. It is obvious from the judge's reasons for admitting the YouTube videos that the same reasoning applied to the website material. It was highly probative in linking the applicant to the videos and the risk of unfair prejudice was the same in each case. The website material was rightly admitted into evidence.

139 It was not reasonably arguable that the evidence that is the subject of ground 2 was inadmissible. Leave to raise this ground should be refused.

Ground 3 ― Admissibility of other evidence

140 Ground 3 challenges the admissibility of four pieces of evidence. First, a Telstra employee (Mr Adam Gelfe) gave inadmissible hearsay evidence that telecommunications services ceased at the police station the subject of charge 1 at 1.35 am on the relevant date. Secondly, the evidence regarding each of the five fires was not admissible as coincidence evidence in respect of the other fires. Thirdly, a police officer (Detective Woodcock) gave inadmissible opinion evidence regarding the likely use of an accelerant in the case of the fire at St Mary's presbytery (charge 2); and fourthly, DNA evidence in respect of the bottle found at the scene of the fire at St Oswald's (charge 3) was inadmissible.

141 Before the jury was empanelled, the judge made a ruling permitting Mr Gelfe, a Telstra employee, to give evidence that he had perused records and documents maintained by Telstra and as a result was able to state that Telstra records showed that the managed data and voice services for Mount Waverley police station ceased at 1:35:03 am on 20 January 2011.

142 The evidence of Mr Gelfe in a Basha hearing relating to this matter was adduced in an unconventional way. The prosecutor relied only on a written statement of Mr Gelfe which relevantly contained a statement to the above effect but did not exhibit any business record of Telstra. This presented an immediate difficulty, because the evidence of Mr Gelfe was sought to be admitted as a business record under the exception to the hearsay rule in s 69 of the Evidence Act. That provision, where it applies, provides that the hearsay rule does not apply to the document in question. Section 48 of the Evidence Act then provides for ways in which evidence of the contents of a document may be adduced. Those ways do not include an oral recitation by a witness of the contents of the document.

143 Leaving that issue to one side, cross-examination of Mr Gelfe at the Basha hearing elicited further information about the source of Mr Gelfe's knowledge of the business records of Telstra. It transpired that he had emailed another person within Telstra to find out when the service to the police station had ceased and had received an email in response.

144 The trial judge ruled the evidence of Mr Gelfe admissible under s 69 of the Evidence Act. He referred to Lancaster v The Queen,[24] in which documents were held to be business records notwithstanding that they contained first or second hand hearsay. He also referred to the Telecommunications Act 1997 (Cth) ('Telecommunications Act') as governing the provision of information to law enforcement agencies.

145 At trial, neither the statement of Mr Gelfe nor the email which he had received were tendered. Mr Gelfe gave evidence in chief that he was the Telstra officer responsible for providing police with information they requested of Telstra. He confirmed that, when asked to provide information he had somebody look it up on his behalf. Evidence was led that he had been provided with information that 'formed part of Telstra's business records'. He was then asked what the business records showed and he stated that there was an interruption to services at the police station at 1:35:03 in the morning. It may be noted in passing that this evidence was unsatisfactory, not only because the witness was led as to the status of the records as 'business records' but also because it was not made clear what records were being referred to. In any event, despite the witness having been asked what those records showed, it was apparent that the witness relied for his answer on information from a third party as to the time of the interruption, rather than on his own perusal of the records.

146 In cross-examination, it emerged that Mr Gelfe had received an email from an unidentified person at a Telstra helpdesk which stated that the sender had spoken to yet another person, within Telstra's IP solutions centre, who had specified the time when the services to the police station were interrupted. Mr Gelfe confirmed that he had not checked the original records to see what time they mentioned and could not give evidence beyond what was contained in the email. The evidence of Mr Gelfe was therefore revealed as second-hand hearsay as to the contents of Telstra's records.

147 On the hearing of the appeal, senior counsel for the Crown conceded that the evidence of Mr Gelfe was inadmissible. The concession was rightly made. Section 69 of the Evidence Act relevantly provides:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made -

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation -

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

148 Even if the records to which Mr Gelfe referred in his evidence had been tendered, they would not have been admissible under this provision because Mr Gelfe was not able to give evidence that the document disclosing the loss of services at 1.35 am formed part of the records of Telstra. His only basis for that statement was that he had been told that another person had examined such records. He had not seen the document himself. Without having done so, he could not give evidence satisfying the requirements of s 69(1). Had he been able to give such evidence, s 69(2) would then have been satisfied if it could then be shown that the representation as to the time of interruption of services contained in the relevant document was made by a person with personal knowledge of that fact. However, the foundation for that inquiry was not established by Mr Gelfe's evidence.

149 Nor could the email received by Mr Gelfe have satisfied s 69. Assuming that document formed part of the records kept by Telstra for the purposes of its business, and that it contained a representation supplied by a person with personal knowledge, within sub-s (2)(b), the email was, as the Crown properly conceded before us, made in connection with an investigation relating to a criminal proceeding within the meaning of s 69(3). It was therefore outside the scope of s 69.

150 The Crown did not seek to rely on any provision of the Telecommunications Act which would have justified admission of the evidence. Having reviewed that legislation, in our view it contains no provision governing the present issue.

151 Error having been shown in the admission of this evidence, the question becomes whether there was a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009 ('Criminal Procedure Act'). It is convenient to defer consideration of that issue until all other grounds relied on by the applicant have been considered.

152 The applicant submitted that the judge had erred by ruling that the prosecution could rely on evidence of each of the fires as coincidence evidence supporting the conclusion that the applicant was responsible for all of the fires. The prosecution contended that the similarities in each fire and the circumstances in which they occurred made it improbable that the fires occurred coincidentally and made it improbable that the fires were the work of any person other than the applicant.

153 The Evidence Act contains three hurdles to the admissibility of evidence for the purpose of coincidence reasoning. First, the party seeking to adduce the evidence must give written notice under s 98(1)(a). Such notice was given in the present case. Secondly, the court must find that the evidence will, either by itself, or having regard to other evidence, have 'significant probative value': s 98(1)(b). Thirdly, in a criminal proceeding, coincidence evidence cannot be used against the accused 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused': s 101(2).

154 The trial judge applied these provisions. He noted that the High Court had held that 'significant probative value' in s 97 (and therefore in s 98) was to be taken to mean evidence 'of importance' or 'of consequence'.[25] He identified the purpose of the coincidence evidence as being to make it more probable that there was one arsonist for all the fires and that this person was the applicant. He then summarised the competing submissions of the parties, which he described as 'ships passing in the night'. Whereas the applicant had concentrated largely on differences in the modus operandi of the fires, the prosecution had relied substantially on evidence connecting the applicant to the scene of each fire.

155 The judge noted that the applicant had submitted that the linkages between himself and the fires were weak and that the prosecution had to establish that there was a striking similarity in the modus operandi revealed in respect of each fire (relying on Tognolini v The Queen[26]). The judge observed that Tognolini was not decided under ss 98 or 101 of the Evidence Act, and that this Court had revisited the matters dealt with in that case in CV v The Queen[27] and Velkoski v The Queen[28]. However, he accepted that a higher level of similarity would be required in cases where the fact in issue is the identity of the perpetrator and there are few or weak links between the accused and the crime scenes or the victims or any other feature that establishes a relationship.

156 The judge held that the central similarity between the fires was that the accused was in the vicinity at the relevant times. This rendered it improbable that his presence was an innocent coincidence. He found that the evidence was of significant probative value on this basis, but that its probative value was enhanced by the fact that the fires occurred over a period of only 14 days, together with the evidence of motive. He also held that there were similarities in the modus operandi of the fires that added 'something' to the probative weight.

157 In respect of s 101, the judge held that the very high probative value of the evidence substantially outweighed any unfair prejudice or prejudicial effect on the applicant. He considered that the jury would understand the need for separate consideration of the offences and the legitimate coincidence reasoning that they could use.[29]

158 The applicant challenged this ruling on several grounds. He submitted that there were considerable differences between the various fires. At best they were no more than different instances of the crime of arson. He submitted that Tognolini established that mere proximity to several fires was insufficient to establish a basis for coincidence reasoning and that evidence of striking similarity between the offences was required in order to link the applicant to the offences. Further, it was submitted that the possibility of collusion among the surveillance witnesses, whether innocent or not, undermined the probative value of the evidence so as to deny its use for coincidence reasoning. In relation to charges 1 and 2, for which there was no surveillance evidence, there was evidence alone of the vehicle, and not the applicant, being in the relevant area. Finally, the applicant argued that the coincidence notice under s 98(1)(a) was too general to satisfy the section. In the alternative, evidence of the 'loop driving pattern' adopted by the applicant's vehicle was not admissible for these purposes as it was not specified in the notice.

159 There is no substance in any of these submissions. The argument that there were insufficient similarities between the fires fails to take account of the use which the prosecution sought to make of the evidence. It was principally the presence of the applicant, on the prosecution's case, in the vicinity of each of the fires which gave rise to coincidence reasoning. It was not the similarity between the fires themselves or the pattern of driving which was shown by the tracking evidence. The evidence of the applicant's presence included evidence that his vehicle was stationary in the vicinity of each of the premises in question at relevant times of the night. The fires took place over a period of only two weeks and most of the fires were within a relatively small geographic area. To the extent that there were similarities in the modus operandi between some fires, this added 'something' to the probative value of the evidence, as the judge held, but the primary basis for admissibility was the coincidence of the applicant's presence in the five relevant locations. The notice served under s 98(a) made these matters abundantly clear.

160 Tognolini did not require that the prosecution in this case establish any 'striking similarity' between the five fires. Each case must depend on its particular facts, and it must be borne in mind that Tognolini did not concern ss 98 or 101 of the Evidence Act. However, it is useful briefly to refer to that decision.

161 In Tognolini it was alleged that the accused was responsible for five fires at business premises which took place after he had threatened to set fire to the business concerned. The question was whether there should be separate trials.[30] That question was treated as turning on whether the evidence of the fires was admissible as evidence of a propensity on the part of the accused, which in turn depended under s 398A of the Crimes Act on whether it was just to admit the evidence because its probative value outweighed any prejudicial effect.

162 Nettle JA addressed a contention that, in cases where identity was in issue, the only permissible basis for admission of similar fact evidence was striking similarity or a signature satisfying what was sometimes called the 'hallmark principle'.[31] He rejected the contention, in reliance on authorities including Pfennig v The Queen,[32] holding that the question was not whether the means of commission of the crime in each case was the same or strikingly similar, but whether the evidence was sufficiently cogent to be admitted as proof of identification of the offender, a question depending on all the evidence in the case.[33] Nettle JA went on to say:

So, too, if there is evidence which in some way connects an accused with a series of offences, as well as with the offence which is charged, then, even though it may fall short of striking similarity or signature, the combined effect of the evidence can render it so improbable that any person other than the accused committed each of the offences as to make evidence of all admissible.[34]

The disputed evidence was admissible under s 398A on this basis.

163 The reasoning in the paragraph just quoted is directly counter to the applicant's submission that, in a case where proximity of the accused to the offending is relied upon, striking similarity must be shown in the manner of offending.

164 Judd AJA reached the same conclusion as Nettle JA, and Neave JA agreed with both of the other members of the Court. Judd AJA also rejected the contention that 'striking similarity' or some kind of 'signature' needed to be shown in the manner of the offending. The applicant relies on the following passage in the judgment of Judd AJA:

There can be no doubt that the facts of a particular case may dictate a need for a 'signature' where, for example, there were a number of fires that were started in a distinctive way and it was established that the accused lit a particular fire in the same way. In such a case, it may be necessary to establish a 'striking similarity' in the modus operandi in order to connect the accused with the other fires. Such a degree of connection might logically be required if the proximity of the accused to the other fires, and the manner in which they were lit, was the only connecting factor to identify the accused as the perpetrator. That is not this case.[35]

165 Three things may be said about this passage. In the first place, it acknowledges, consistently with the reasons of Nettle JA, that each case depends on its facts. Secondly, it posits, by way of example only, a hypothetical case in which proximity to other fires, and the manner in which they were lit, was the only connecting factor to identify the accused. In such a case, reliance on proximity and the manner in which fires were lit might require a 'striking similarity' in the modus operandi. This observation says nothing about a case in which modus operandi does not form the basis of the coincidence reasoning sought to be relied on. Moreover, it goes no further than saying that striking similarity 'might' be required. Finally, the decision predates ss 98 and 101 of the Evidence Act and pronouncements of the High Court deprecating reliance on common law concepts such as 'underlying unity' in the context of tendency evidence under the Act,[36] and the same reasoning must apply to 'striking similarity'. The passage therefore does not sustain the applicant's contention that 'striking similarity' must be identified in the present case.

166 The last point noted above draws attention to a fundamental difference between Tognolini and the present case, namely that the prosecution here sought to rely on the evidence as coincidence evidence, whereas Tognolini was concerned with propensity or tendency evidence. This is a further reason for caution in applying what was said in that case to the present matter.

167 Reliance on the surveillance evidence was not to be excluded for coincidence purposes as a result of any possibility that collusion (or any other factor) might weaken its probative value. It was not for the judge to assess the credibility of the surveillance witnesses; that was a question for the jury and it was to be assumed for these purposes that the evidence would be accepted (it being rationally capable of such acceptance).[37] The High Court in R v Bauer held that the common law approach to the possibility of collusion and contamination had been overruled by the introduction of the Evidence Act and further held that:

unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.[38]

The surveillance evidence was part of the material relied on to establish the applicant's presence in the vicinity of the fires the subject of charges 3, 4 and 5. If the jury accepted that evidence, it was capable of supporting coincidence reasoning.

168 The fact that there was no surveillance evidence in relation to charges 1 and 2 did not mean that evidence in relation to those charges could not be used by way of coincidence reasoning. Evidence of the presence of the accused's stationary vehicle in the vicinity of the scenes of those fires at relevant times was capable of founding an inference that the applicant himself was present, without the surveillance evidence. Such an inference, if drawn, was an ample foundation for coincidence reasoning.

169 In our view, the judge was correct to hold that the evidence sought to be relied on for coincidence reasoning had significant probative value which substantially outweighed any prejudicial effect on the applicant. Leave to advance this aspect of ground 3 should be refused.

170 Next, the judge permitted evidence to be given by Detective Woodcock as to an accelerant having been poured at the base of the timber doors which were burned in the fire at St Mary's presbytery (charge 2). The judge held that the evidence was opinion evidence but that the witness was qualified to give it by reason of his training and experience as a detective.

171 At committal, Detective Woodcock based his opinion on his observation of the burn pattern, which he said was consistent with liquid running across a concrete surface. He stated that 'concrete doesn't burn unless it has an accelerant on it'. In his ruling on admissibility, the judge noted that the jury would see photographs revealing burn patterns 'that appear clearly to show a liquid ran along the concrete outside the French doors of the presbytery and settled in the gap' between the two concrete paving stones. The judge ruled the evidence admissible under s 79 of the Evidence Act and held that it was not excluded under ss 135 or 137.

172 At trial, the evidence of Detective Woodcock, too, was led in an unconventional way.[39] Without the prosecutor having asked any questions as to his experience or training with respect to arson investigation, the witness was asked what he observed at the scene of the fire. He stated that he observed 'burn marks on the concrete and ... significant charring of the timber frame'. Asked whether there was anything particular about the burn marks he said 'it appeared to be ... as a result of an accelerant being poured ... on or near the doorway and it had run due to the slope of the concrete'. The prosecutor asked what it was about the markings on the concrete that led the witness to that conclusion, and he said that it was 'due to the fact that there was a slight slope on the ... concrete, and that's consistent with ... an accelerant being poured, and it pooled in those areas, and that caused the charring on the concrete'. He referred further to a cross pattern in the burning 'where it's gone along the concrete seam' being the joins in the pavers.

173 It was only in cross-examination that evidence of the training, study or experience of the witness was elicited, notwithstanding that under s 79 of the Evidence Act such evidence was essential to establish that the witness had specialised knowledge upon which to base opinion evidence. At all events, the evidence was, consistently with that given at the committal and upon which the trial judge's ruling was based, that Detective Woodcock had completed a three day arson training course as part of his detective training in about 2008, together with 'on-job training' from his superior officers (one of whom was a former head of the arson squad). However, he eschewed being a forensic expert and expressed himself unable to give evidence about the 'spalling pattern' of certain marks shown in the photographs.

174 Further in cross-examination, Detective Woodcock stated that he was 'not an expert but concrete just doesn't burn unless it's got an accelerant on it'. He then gave evidence that, from his experience, there was an accelerant at the scene based on the way the burn pattern had gone 'along the grooves and downhill'.

175 The applicant submitted that Detective Woodcock lacked the requisite specialised knowledge and had only a belief, which was contradicted by the later evidence of Mr Xydias, a qualified forensic chemist, who stated that concrete spalling can occur as a result of fire without the presence of an accelerant. Mr Xydias stated that 'spalling' is a cracking or breaking and flaking of the concrete.

176 There is no merit in these arguments. Section 79(1) of the Evidence Act states two conditions of admissibility: first, that the witness has 'specialised knowledge based on the person's training, study or experience' and secondly that the opinion is 'wholly or substantially based on that knowledge'. The High Court in Honeysett v The Queen[40] explained that:

The first condition directs attention to the existence of an area of 'specialised knowledge'. 'Specialised knowledge' is to be distinguished from matters of 'common knowledge'. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines 'knowledge' as 'acquaintance with facts, truths, or principles, as from study or investigation' (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: 'the word "knowledge" connotes more than subjective belief or unsupported speculation ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.'

The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends 'observations and knowledge of everyday affairs and events'. It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.[41]

177 It is apparent that in this case Detective Woodcock had training and experience, albeit falling short of formal qualifications (as he readily acknowledged). The question is whether that training and experience gave him specialised knowledge outside of the common knowledge of persons who did not have such training and experience. In our opinion, it did. Albeit that the evidence that was given was not of an elaborate kind, being based on the observations of the witness as to the slope of the concrete and the areas damaged by fire, the training and experience of Detective Woodcock placed him in a position of having knowledge as to the effects on concrete of burning accelerants beyond that of a person lacking that training and experience. His evidence was based upon that knowledge.

178 There are at least three reasons why the evidence of Mr Xydias is irrelevant to the question of admissibility of the evidence of Detective Woodcock. The first is that it is not a criterion of admissibility that the opinion in question be correct or unchallenged. That is a matter for the jury faced with inconsistent evidence. Secondly, Mr Xydias was not shown a photograph of the fire damage at St Mary's presbytery with respect to which Detective Woodcock gave his evidence. Thirdly, in any event, the evidence of Mr Xydias, that spalling or marking could be caused on concrete by a fire without the presence of an accelerant, did not contradict the evidence of Detective Woodcock at all. His evidence was not based on 'spalling', as to which he disclaimed expertise, but on the slope of the concrete and the spread of the burn marks. Mr Xydias gave no evidence as to such matters. It is true that he also said that there could be 'marking' of concrete caused by fire without the presence of an accelerant, but that is a general statement of the obvious. It is plain that the evidence of Detective Woodcock about the burning of concrete was given in a specific context and that any contradiction between the witnesses is explicable on that account.

179 For the above reasons, the evidence of Detective Woodcock was admissible. We add for completeness that there is no substance in the submission that its probative value was outweighed by any prejudicial effect so as to call for its exclusion under ss 135 or 137.

180 The fourth and final set of challenges to the admissibility of evidence under ground 3 concerns DNA evidence in respect of a plastic bottle containing accelerant found at the scene of the fire at St Oswald's (charge 3). The bottle was found on the step to the burnt door of the church. Remains of burnt firelighters near the door suggested that the offender had set them on fire with the intention that the bottle would melt, releasing the accelerant and causing a much larger fire.

181 The bottle was forensically examined and biological material was found on its outside. Evidence was led that, when DNA was extracted from that sample and compared to a sample of the applicant's DNA, the conclusion was drawn that the applicant could not be excluded as a source of the DNA found on the bottle, and that it was 46,000 times more likely that the applicant rather than some other person chosen from the Australian Caucasian population at random was the source of the sample on the bottle.

182 The witness who interpreted the comparisons of the two samples, Ms Jelic, oversaw the work of other scientists at the Victoria Police Forensic Services Centre. Several of those scientists also gave evidence. In brief summary, Ms Widjaja gave evidence of swabbing the whole of the outside of the bottle with a wet swab and then a dry swab and putting the swabs in a vessel in the refrigerator. Ms Labas took that vessel and utilised a robotic extraction process to extract genomic DNA from the swabs before returning the vessel to the refrigerator. Ms Nguyen took the extracted DNA from the refrigerator and performed three further steps: she quantitated the DNA using robotic machinery; she amplified the DNA using a product known as 'Profiler Plus' and robotic machinery; and she classified the result after another person, who did not give evidence, had caused the raw data to be transformed into a graphical representation. Only Ms Jelic gave opinion evidence, relying on the accuracy of the work of the above scientists as the basis for her opinion.

183 In his ruling as to the admissibility of the above evidence, the judge rejected arguments challenging the expertise of the witnesses, and found that Ms Jelic came to her opinion on the basis of her specialised knowledge which was in turn based on her training, study and experience so as to satisfy s 79 of the Evidence Act. Those conclusions are not sought to be challenged on appeal.

184 Before the trial judge, the applicant contended that the probative value of the DNA evidence was low and that there was a danger of the jury being unduly impressed by it, which gave rise to unfair prejudice which outweighed its probative value. In this context, he argued that the prosecution case was consistent with innocent transfer of the relevant DNA onto the bottle, which was an ordinary commercially produced beverage container. He further argued that the small quantity of DNA made the evidence insufficiently probative.

185 The judge rejected these arguments. He considered that the possibility of innocent transference had to be considered in the light of the evidence of the applicant and his car both having been in the vicinity of the church at the relevant time. In contrast, there was no evidence that gave rise to a real risk of transference. In that regard, the judge distinguished Fitzgerald v The Queen,[42] in which the possibility of transference by shaking hands was raised on the evidence and held not to have been excluded by the prosecution. The judge also accepted that the low amount of DNA found on the bottle (between one and three human cells) did not mean that it could not yield a profile or partial profile. This was recognised by this Court in Tuite v The Queen,[43] which also upheld the admission into evidence of likelihood ratios calculated in accordance with the STRmix analytical method which was also used in the present case. The judge concluded that the probative value of the DNA evidence, if accepted, was very significant and outweighed the risk of unfair prejudice, which could be ameliorated by directions.

186 The applicant renewed these arguments in this Court. He submitted that Ms Widjaja had failed to swab the bottle under the cap or inside, which could have revealed exculpatory DNA traces. It was not known how the DNA got onto the bottle or whether it was the DNA of the offender. It was submitted that the bottle could have been placed at the scene by a person known to the applicant, who had previously (or subsequently) touched the bottle. Further, the applicant submitted that the likelihood ratio was very low and meant that 236 persons in Australia, including his two brothers, were not excluded. Finally, it was said that the DNA evidence was not corroborative of the surveillance evidence (or vice versa) as to charge 3 and was not cross-admissible on the other charges.

187 These submissions are without substance. Taken with other evidence, the DNA evidence was capable of supporting an inference that the applicant placed the bottle on the church step in the course of committing the offence the subject of charge 3. It was probative of the fact that a person 46,000 times more likely to be the applicant than a random member of the Australian Caucasian population had touched the bottle. In that context, Ms Jelic gave evidence that it was highly unlikely that two siblings, unless they were identical twins, would have the same DNA profile. There was nothing in the evidence to suggest that the applicant had touched the bottle in any other context, or that his DNA could have been placed on the bottle by means of transference from a third party. The strength of the relevant evidence, and the significance of the matters relied on by the applicant, fell for consideration by the jury, but if the DNA evidence were to be accepted, it carried significant probative weight, as the judge held.

188 That is so, notwithstanding that the evidence relied on the use of low template DNA. As recognised in Tuite, this did not prevent the evidence from having probative value. If accepted, the evidence plainly supported the prosecution case on charge 3 and linked the applicant to one of the five fires said to have been lit by the same person. It therefore supported the inference that, if the fires were lit by one person, that person was the applicant. In that way, the evidence was admissible in respect of all the fires.

189 The risk of unfair prejudice in our view amounted to no more than that the jury would give too much weight to the evidence. The judge addressed this possibility by directing the jury in his charge to be mindful of the so-called 'CSI effect', by which undue or conclusive weight is attributed to DNA or other technical scientific evidence at the expense of a proper evaluation of all the evidence in the case. In our view, this ameliorated against the risk of unfair prejudice and the evidence was not inadmissible under s 137.

190 At trial, the applicant also unsuccessfully contested the continuity evidence relating to the bottle and the DNA sample. He maintains part of that challenge on appeal, on the basis that evidence was not given by the person who performed a process called electrophoresis as part of the analysis of the DNA. That process produces an electropherogram for each DNA sample, being a graphical representation of the DNA profile which is then compared for the purpose of identifying a match and calculating a likelihood ratio.

191 Ms Jelic gave evidence that she conducted the evaluation of the graphical representation of the DNA profiles in the present case but was not involved in the earlier steps, including the generation of the graphical representation of the profiles. She stated that the correctness of her result relied on the previous stages of the process being performed correctly and that there was no reason to think that those stages were not performed correctly because of the controls, checks and balances that were in place. She acknowledged, however, that she had not followed the controls, checks and balances herself as this was done by whoever did the previous test.

192 Ms Nguyen gave evidence that she received raw data produced by 'genetic analyser' software on a computer and compared it to controls to ensure that the analyser had produced a true and correct result. The genetic analysis was performed by a third person. Its purpose was to separate the DNA fragments by size so that it could be visualised. The data was viewed in the form of an electropherogram. She referred to the existence of controls during this process. When asked in cross-examination whether she could detect, looking at the output of the software's operation, whether something had gone wrong in the process, Ms Nguyen said that, if the controls did not 'produce the expected profile then you would question the process along the way'. In the present case, she said in re-examination, all controls passed.

193 The applicant contended that the evidence of Ms Jelic was hearsay in so far as it relied on the creation of the electropherogram upon which her evidence depended. It was submitted that neither Ms Jelic, nor any other witness, had given evidence that electropherosis had been undertaken in respect of the relevant DNA samples. Ms Jelic had examined an electropherogram which had not been shown to relate to the DNA sample from the bottle, or to have been properly conducted at all.

194 The applicant relied on the decision of the New South Wales Court of Criminal Appeal in R v Sing.[44] In that case, expert evidence as to DNA testing was excluded on the basis of unfair prejudice under ss 135 and 137 of the Evidence Act 1995 (NSW), without deciding whether the evidence was hearsay or based on hearsay. The evidence in question was that of two forensic biologists, one of whom interpreted the results of tests done under his supervision and the other of whom conducted analysis of the results of those tests.

195 The Court held that it was not clear whether the evidence involved hearsay or was based on hearsay.[45] There was evidence that one of the witnesses had supervised established procedures for conducting DNA samples, resulting in the production of results able to be examined by the two witnesses.[46] The witness had checked the intermediate print-outs to ensure that there were no errors. Nonetheless, the Court held that it was probable that the results examined by the witnesses either stated that they concerned the relevant samples, or a person providing those results to them must have reported that fact.[47] In either case, that hearsay assertion would have been essential to afford a basis for the expert opinion evidence.

196 Without deciding that point, however, the Court held that the 'correct carrying out of testing procedures' should not normally be proved, over objection, 'merely by evidence of the existence of the procedures and the giving of instructions, and otherwise left to inference'.[48] There were relevant questions which could have been put had the persons who performed the testing been called as witnesses, and there was no apparent reason for not having done so. As such, the evidence ought to have been excluded under ss 135 and 137.[49]

197 Unlike Sing, the present case does not involve the possibility of hearsay. While it is true that Ms Jelic, who gave the evidence as to likelihood ratios, was not able to say of her own knowledge that the electropherosis had been properly conducted, the evidence of Ms Nguyen, upon which Ms Jelic's analysis rested, made it clear that the process had been undertaken and that it had been performed properly. This was not based on direct observation of the process, but on Ms Nguyen's evidence that, had the process not been performed correctly, that would have been revealed by the controls. Taken with Ms Jelic's evidence that she reviewed an electropherogram, the irresistible inference was that this had been produced as a result of a properly conducted electropherosis. Moreover, Ms Nguyen's evidence as to the sequence of processes left no room for doubt that the samples involved were the same throughout.

198 The present case was also different to Sing, in that three witnesses were called as to the preliminary stages of the DNA testing. There was no unfair prejudice to the applicant as a result of the Crown not calling the person who conducted the electrophoresis, which was performed using a machine. Ms Nguyen's evidence established that, if the machine malfunctioned, this would be revealed by the controls.

199 For these reasons, the DNA evidence was properly admitted.

200 Because of our conclusion as to the evidence of Mr Gelfe, leave to appeal should be granted in respect of ground 3.

Ground 4 ― The convictions were unsafe and unsatisfactory

201 Ground 4 contends that the convictions of the applicant, on each charge, were unsafe and unsatisfactory, especially on charges 1 and 2. In support of that ground, the applicant relied on the submissions that he made to the jury in his lengthy final address, supplemented by further propositions advanced by him in his written case and in oral argument.

202 The applicant commenced by submitting that there was no direct evidence linking him to any of the five fires. The applicant was not known to any of the occupants of the premises, he had not been known or seen to visit or set foot on any of those premises, and he was not found to carry, or be in possession of, any fire lighting equipment or materials at the time of his arrest.

203 In addition, he submitted that the prosecution was not able to establish, with sufficient particularity, the time at which each of the five fires occurred. In particular, he submitted that: the fire at Mount Waverley Police Station (charge 1) could have occurred any time overnight and possibly during the daytime; the fire that was the subject of charge 2 could have occurred between 10.30 pm and 7.30 am on the night in question; and the fire that was the subject of charge 3 could have occurred over a period of three days and two nights. The applicant further noted that the signs of the fire at Tanner's (charge 4) were first noted at 1.45 am, some twenty six minutes after the white Magna was observed to depart from Pimm Court. Further, he submitted that it was not possible to specify the time at which the Croxley Child Care Centre fire (charge 5) took place.

204 Next, the applicant noted that the prosecution case was based on the allegation that he personally was responsible for lighting each of the five fires that were the subject of the charges, and that the prosecution did not seek to make a case against him on the basis of joint concert or joint criminal enterprise. He submitted that the prosecution case could not exclude a reasonable hypothesis, consistent with his innocence on that basis, that a second person other than himself had lit one or more of the fires. That is, the applicant contended, the fact that he may have been proven to have been present at or near the site of each of the fires did not mean that it was he who had lit the fires. Such evidence was consistent, for example, with the applicant driving another person to the point of the fires, or with the applicant later visiting the scene of each of the fires to observe and report to another person whether that other person had successfully managed to light the fire at the particular location. The applicant contended that that proposition carried particular weight in respect of charge 3, as, in that case, the period of time in which the fire could have been lit was between the evening of 25 January and the morning of 27 January 2011. Thus, the applicant contended, the prosecution could not exclude the reasonable possibility that in the case of that fire, the applicant had been present near St Oswald's either to conduct surveillance before the fire, or to observe the outcome of the fire, in circumstances in which someone other than himself had been responsible for lighting the fire.

205 In addition, it was contended that there were aspects of the evidence that exculpated, rather than inculpated, the applicant. For example, in the case of the fire at Tanner's (charge 4), the SSU witnesses did not detect smoke or a fire, or observe security lights on, at the time of the alleged fire. In the case of the fire at St Oswald's (charge 3), Senior Constables Cook and Prpic did not see any security lights on at the time at which it was alleged the applicant was at the premises. In addition, there was evidence that after the arrest of the applicant, the St Mary's (charge 2) had been the subject of a number of further fires in respect of which the applicant had been excluded as the potential offender. Further, it was submitted that the evidence relating to charge 5 pointed away from the applicant being the offender. He was not found to possess any cutting tool, despite the fact that (the applicant contended) there had been a break-in and the fly screen had been cut. The man, observed by Senior Constable Kane in the laneway, was not carrying any tools, fuel container or fire igniter. When the applicant was arrested, the police did not detect any signs of accelerant on him.

206 The applicant further submitted that the stronger prosecution case on charges 3 to 5 unfairly 'coloured' the evidence which was weaker in respect of charges 1 and 2, and on which the jury returned majority verdicts. In the case of those two charges, there was no manual surveillance. Thus, it was submitted, the prosecution could not exclude the fact that, when the white Magna had stopped at traffic lights, there had been a change in the occupant of the vehicle. It was submitted that the CCTV footage relating to charge 2 was unclear as to the vehicle that was used.

207 The applicant further contended that the prosecution case was 'a boot strap one'. He contended that if the hypothesis of coincidence were rejected, that did not mean that the applicant was guilty 'by default'. In particular, he submitted the prosecution had not eliminated the possibility that a different arsonist lit one or more of the fires. The prosecution case was based on the assumption that the same offender lit each of the fires. However, there were differences in the modus operandi in respect of a number of the fires. For example, a timing device was only used at one fire, and a 'vent' was only set fire to in the case of two of the fires. Further, it was contended, the prosecution could not eliminate the possibility that there was more than one offender, taking into account that the lighting of those fires involved what might be regarded as a normal methodology, and the fact that knowledge might have been gained by other offenders of the method by which the earlier fires had been lit.

208 As mentioned, the applicant, in support of ground 4, relied principally on propositions that he advanced to the jury in his lengthy final address. Those propositions (as supplemented by further arguments made to this Court) may be summarised as follows.

209 In respect of charge 1, the applicant noted that there were a lot of people who might be disaffected with the police, and thus motivated to set fire to a police station. Constable O'Sullivan was the first policeman to attend the station on the day after the fire at 6.40 am, and it could not be excluded that the fire was lit in daylight, and not in the early hours of the morning. The applicant further contended that Ms Noble was unable to exclude that there was another fire seat, and no officer gave evidence that they inspected and counted the number of fire seats or checked for signs of break-in. The applicant submitted that the fact that the communication lines failed at 1.35 am did not mean that the fire had occurred at that time. In particular, he submitted, Mr Gelfe did not have direct knowledge as to the time that the equipment failed; he could only recite the time that was recorded in the email document which purported to rely on the records of Telstra. Mr Gelfe was unable to say whether it was not normal for Telstra services to drop out at night.

210 In respect of charge 2, the applicant submitted that the evidence could not establish that the fire had occurred overnight. Father Moran agreed that it was possible that, on the previous evening, he had not checked the door that was found burnt on the morning of 21 January 2011. In addition, Father Moran said in cross-examination that there had been other bin fires and similar incidents at the premises, and there was a lot of foot traffic through the church grounds. The applicant submitted that the evidence of the CCTV recording of the BP Elwood station did not detect the number plate of the vehicle, or the number of passengers in that vehicle, that is depicted in the recording. Even if the vehicle, depicted in that footage, was used in the fire, there was sufficient time for the occupants of the vehicle to have changed before the fire occurred. There was no forensic evidence linking the receipt from the petrol station with the applicant.

211 The applicant further submitted that the modus operandi in relation to the fire was different. No vents were used in the fire. There was no evidence that petrol or kerosene was used. The applicant submitted that the jury should have rejected the evidence of Sergeant Woodcock because he was not qualified as a chemist, and no formal test was conducted to establish the use of any liquid accelerant in the fire. Further, Sergeant Woodcock could not discount the possibility that there was more than one seat of fire.

212 The applicant contended that the tracking device evidence in respect of charge 2 was inconclusive. First, with the other four fires, there was no 'loop driving' of the type that occurred on the evening of the fire that was the subject of charge 2. Secondly, the white Magna had been detected engaging in the same kind of 'loop driving' on a number of days and nights where no fire had occurred. Thirdly, the area in which the fire was said to have occurred could not be detected or observed from Dandenong Road, so that loop driving would have been irrelevant. Fourthly, the type of 'loop driving' performed by the white Magna on the evening in question was explicable by a number of alternative innocent hypotheses, such as looking or waiting for an unpaid parking spot, or charging a defective battery.

213 In respect of charge 3, the applicant submitted that the fire could have been lit at any time between the evening of 25 January and the morning of 27 January. Reverend Hewlett was awoken by his dogs in the early hours of 27 January, but he did not see or smell any sign of fire. In addition, it was submitted, the fire involved a different modus operandi to the Mount Waverley fire, in that the fire was not lit near or next to any vents.

214 The applicant made detailed submissions (to the jury and on this application) concerning the evidence of DNA that was detected on the bottle that was found at the scene of the fire. The applicant submitted that the DNA evidence was fallible, and that in any event it was not direct evidence. Even if the DNA of the applicant was on the bottle, it did not mean that he was the person who was at the scene or who lit the fire. In particular, the applicant submitted, he might have touched or handled the bottle on an occasion previous to the date of the fire, but someone else had taken it to the scene of the fire. He further submitted that the DNA testing was subject to error both by those who were physically involved in the testing, and also error by the technology. He further contended that it was more likely that the DNA trace was not from the offender, because such a person would have been careful and worn gloves. The applicant contended that the statistical probability analysis had the effect that a number of persons, other than himself, could have been the source of the DNA. In addition, the DNA that was detected was only a partial result. Only seven loci were compared, of which one was the sex indicator. The applicant further submitted that, because the bottle had been placed by Mr Xydias in the same bag as the firelighters, Ms Jelic, in cross-examination, could not exclude that the DNA might become degraded or damaged by chemicals such as those that might have been present in the firelighter.

215 The applicant also challenged the accuracy of the identification evidence of the SSU operatives, and, in particular, the evidence of Leading Senior Constable Jackson. He submitted that the evidence assumed, rather than established, that it was the applicant who was seen driving the white Magna. Senior Constable Jackson's observation of him at 1.00 am was only fleeting and could have been erroneous. Similarly, he submitted, Senior Constable Prpic only saw a silhouette, and he assumed it was the applicant.

216 In respect of charge 4, the applicant submitted to the jury (and on this application) that the jury did not have to accept anything that Mr Xydias said about how the fire had started, where it started, or whether or not accelerants were used. He also submitted that Mr Xydias was unable to state when the fire had commenced. He submitted that the evidence of Sergeant McGibbony and the evidence of Senior Constable Heinan was unreliable and inconsistent. He noted that the prosecution had contended that the CCTV footage outside the premises of Yvette Drive depicted the applicant holding a bottle, but (he submitted) the SSU witnesses did not say that they saw him carrying any bottle at any time. Finally, the applicant contended that although the tracker device recorded the white Magna to be stationary in Pimm Court between 1.13 am and 1.17 am, nevertheless there was no direct evidence that anyone got out of the vehicle at that time.

217 In respect of the fifth charge, the applicant, first, noted that Ms Cockinaris had stated that there had been a lot of vandalism around the time of the fire in the area in which Croxley Child Care Centre was located. He further submitted that the photographs depicted three intersecting cut lines on the fly screen to the premises, and he noted that the intruder alarm had gone off before the fire alarm. The applicant noted the evidence that the windows on the south side of the building were broken. There was no evidence that any of the firemen had broken those windows. He submitted that in the circumstances the jury could not exclude the possibility that the fire had been commenced by someone who had broken into the premises. In that way, he submitted, the modus operandi in respect of the fire was different to that employed in the other four fires.

218 The applicant further contended that the evidence of Senior Constable Kane was unreliable. His evidence, as to the person who was described as the target of the briefing before he commenced his shift, was different to that provided by other witnesses. He noted that the person observed by Senior Constable Kane was not carrying any equipment or materials that were consistent with those that would have been used in the fire. The applicant repeated the submission that when he was arrested, he was not found to be in possession of any cutting tool (despite the fact that the fly screen at the premises had been cut), and he was not in possession of any other item such as matches or a lighter that could have been used in the fire. In that way, he contended, the evidence pointed away from him being the person who had committed the offence that was the subject of charge 5.

219 The applicant submitted that the YouTube videos could not be relied on by the jury to establish the motive claimed by the prosecution. He submitted that the person in the videos could not be identified because he was wearing a balaclava. Further, the website and the YouTube videos had no demonstrable link to any of the five premises that were the subject of the fires. He noted that the YouTube videos did not mention any particular building or type of building, and did not say anything about the date or times at which a fire should be lit. The applicant contended that the YouTube material did not constitute evidence of motive in any event. The fact that the website material was critical of society did not mean that the maker of the videos was an arsonist.

220 In response, it was submitted on behalf of the respondent that the combined weight of the evidence presented an overwhelmingly powerful prosecution case against the applicant on each of the five charges. Accordingly, it was submitted, it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of each of the charges.

221 In support of that submission, the respondent relied on the seven pieces of evidence discussed earlier. It relied on the evidence of the recordings by the CCTV camera outside the applicant's home, which depicted the applicant leaving and returning to his address on the occasion of each of the five fires at a time relative to the occurrence of those fires. Secondly, the tracking data on the applicant's vehicle established that the vehicle was in a stationary position relative to the timing and location of each fire. Thirdly, the respondent relied on the surveillance evidence relating to charges 3, 4 and 5 to reinforce the evidence of the tracking device. Fourthly, the prosecution relied on the evidence of DNA extracted from the bottle that was located at the site of the fire that was the subject of charge 3. Fifthly, the respondent relied on the generally similar way in which each fire started, to support the proposition that the same person had been responsible for each of the five fires. Sixthly, the respondent relied on coincidence reasoning that, as a matter of logic, it was so improbable that the applicant was present at the scene of each of the five fires without being the cause of them. Finally, the prosecution relied on the evidence of motive contained in the three YouTube videos.

222 In respect of each of the charges, the respondent referred to and relied on the evidence that we have summarised earlier. In particular, in respect of charge 1, the respondent referred to the CCTV footage, and the evidence of the tracking device, that demonstrated that the applicant departed from his home in Yvette Drive at

12.59 am on 20 January 2011, and that he drove directly to Mummery Street, Mount Waverley, arriving there 14 minutes later. The vehicle remained stationary in that position for a period of nine minutes. The tracking device material, and the CCTV footage, demonstrated that the applicant made a direct return trip to his home, arriving there at 1.39 am, on his own.

223 The respondent further submitted that the evidence of Ms Noble, Mr Epifano and Mr Morgan, demonstrated that the fire commenced, with the use of accelerant, outside the ventilation grille on the southern side of the police station. The evidence demonstrated that the fire then progressed into the wall cavity, burning and damaging the wiring to the telecommunications equipment. Accordingly, it was submitted that the jury was entitled to conclude that the Telstra services stopped at 1.35 am, because they had been damaged by the fire. Thus, the prosecution submitted that the evidence demonstrated that the fire had been lit at or about the time at which the applicant's vehicle was parked, close to the police station, between 1.15 am and 1.24 am on the morning of 20 January 2011, and that the applicant had, for no evident reason, driven to the police station 14 minutes earlier from his own home, and, having parked there for a period of nine minutes, had returned directly to his own home. These submissions were later qualified by the respondent's acceptance before us that the evidence of Mr Gelfe was inadmissible.

224 In respect of the second charge, the respondent relied on the CCTV camera, and the tracking device, that demonstrated that on the evening of 20 January 2011, the applicant travelled a direct route from his home to Westbury Street in twenty nine minutes. During the next three hours, he traversed the area of Alma Park, Westbury Street, Alma Road and Dandenong Road, driving past St Mary's on eight occasions. The tracking device evidence then established that, from 12.16 am to 12.27 am, the applicant's vehicle was stationary outside the church for no apparent reason, a short distance from the point at which the fire was lit. The evidence of the tracking device, and the CCTV footage, demonstrated that the applicant then drove directly back to his home in Yvette Drive. In addition, the prosecution relied on the evidence of Detective Woodcock as to the use of accelerant in the fire, and to the fact that, as with each of the other fires, it had been lit in a secluded part of the exterior of the premises.

225 In respect of the third charge, the respondent relied on the recording of the CCTV camera, the tracking device evidence and the surveillance evidence, to demonstrate that the applicant drove directly from his home in Yvette Drive to Seaton Street, Ashburton, arriving there at 1.17 am. The tracking device demonstrated that the vehicle was then stationary in that position for a period of six minutes, after which it again drove directly home to Yvette Drive. In addition, the respondent relied on the evidence of DNA from the sample taken from the bottle, and the evidence that it was 46,000 times more likely that the applicant was the donor of the biological material than any other Australian Caucasian person.

226 In respect of the fourth charge, the respondent relied on the evidence of the CCTV footage, the tracking device and surveillance operatives, to demonstrate that, on three occasions in a 40 minute period, the applicant was in the vicinity of the Syndal shops surveilling the area around Tanner's. It also relied on that evidence to demonstrate that the applicant's vehicle was stationary in Pimm Court, behind Tanner's, for at least four minutes between 1.13 am and 1.17 am. That evidence was consistent with the observation of Ms Portelli, who first noticed smoke in the sky at 1.40 am when she was departing from her sister-in-law's home in Mount Waverley. The CCTV footage and the tracking device demonstrated that the applicant then directly returned home, having departed from Pimm Court at 1.17 am. The CCTV footage of his home depicted him carrying a two litre plastic soft drink bottle in his right hand. Mr Xydias gave evidence that accelerant had been poured onto the ground at the right hand side of the back door to the premises of Tanner's.

227 Finally, in respect of the fifth charge, the respondent relied on the CCTV footage, the tracking device and the surveillance evidence, to demonstrate that the applicant had driven directly from the Ashwood Reserve car park at 1.55 am to arrive at the bowl of Shirley Avenue at 2.09 am. The respondent relied on the evidence of Sergeant Stevens that the applicant then alighted from his vehicle and walked in a southerly direction into the lane that led to the railway station, and the evidence of Senior Constable Kane as to his observations of the applicant's movements along the walkway adjacent to the railway line at 2.16 am. The tracking data then demonstrated that, at that time, the applicant's vehicle departed from the scene. The applicant was arrested some four minutes later on the freeway. It was submitted that that evidence demonstrated the unexplained presence of the applicant, and suspicious movements of the applicant, in the vicinity of Croxley Child Care Centre at about the time at which the fire occurred at those premises. The respondent also referred to the evidence of Mr Xydias that, as with the other fires, accelerant had been used to ignite a fire close to the exterior of the premises.

228 Counsel for the respondent submitted that considering the evidence in relation to each of the five charges, together with the coincidence evidence, the connection between each of the fires, and the evidence of motive, the prosecution had a very strong case in respect of the applicant's guilt of each of the five charges. Accordingly, it was submitted that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on each of those charges.

229 The ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act, which provides that the Court must allow an appeal if it is satisfied that the particular verdict of the jury 'is unreasonable or cannot be supported having regard to the evidence'.

230 The principles, that are applicable to that ground of appeal, have been restated by the High Court on a number of occasions during the last two decades since its decision in M v The Queen.[50] In Libke v The Queen,[51] Hayne J (with whom Gleeson CJ and Heydon J agreed) stated the test in the following terms:

But the question for an appellate court is whether it was 'open' to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury 'must', as distinct from might have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[52]

231 In R v Klamo,[53] this Court summarised the relevant principles in the following terms:

The approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[54]

232 In R v Baden-Clay,[55] the High Court emphasised the stringent nature of the test which is applicable to the ground relied on by the applicant. The Court stated:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[56]

233 In analysing ground 4, the starting point is that the jury would have been well justified in being satisfied, beyond reasonable doubt, that each of the five fires, that were the subject of the charges against the applicant, had been deliberately lit. Indeed, on the basis of the evidence adduced at the trial, no other conclusion was open to the jury. The fires, that were the subject of charges 2, 3, 4 and 5, could not have been caused by any other process than deliberate ignition. The evidence of the electrician, Troy Morgan, excluded the possibility that the fire, that was the subject of the first charge, might have been the result of an electrical fault. At the site of each fire, a form of accelerant was detected. The expert evidence of Ms Noble in respect of the fire that was the subject of charge 1, and the expert evidence of Mr Xydias in respect of the fires that were the subject of charges 3, 4 and 5, added further support to the prosecution case that those fires had been deliberately lit. The observations by Detective Woodcock, and the conclusions that he drew from them, in respect of the fire that was the subject of charge 2, similarly added weight to the prosecution case that that fire had also been deliberately lit.

234 In addition, there were a number of features of the fires that were common to each of them. In particular, each of the fires was lit outside the particular building. The prosecution case eliminated the possibility that the person who lit the fire had broken into the premises. While the applicant submitted that some of the damage to the windows on the southern side of Croxley Child Care Centre (that was the subject of charge 5) might have been caused by a break-in, the jury was entitled to reject that proposition based on the evidence of Mr Xydias. As mentioned, a form of accelerant was used in the ignition of each of the five fires. In particular, Ms Noble gave evidence that petrol had been used in respect of the fire that was the subject of the first charge. Detective Woodcock had detected signs that accelerant had been used in the fire that was the subject of the second charge. Mr Xydias noted the use of a firelighter in the ignition of the fire that was the subject of the third charge. He detected the presence of kerosene at the site of ignition of the fire that was the subject of charge 4, and petrol at the site of ignition of the fire that was the subject of charge 5.

235 Associated with that, it is clear that the site of ignition of each of the five fires had been carefully selected, and was quite secluded. The fire at Mount Waverley Police Station was ignited on the east side of the station, next to a ventilation point. The fire at St Mary's was lit in front of the door at the foot of a set of stairs that was shielded from view by a wall on each side. Similarly, the doorway that was the site of the fire at St Oswald's was accessed by walking down a driveway, and down some stairs beyond an archway. It was not possible to see the doorway from the driveway. The fire at Tanner's was lit next to a door at the rear of the bakery. Finally, the fire at Croxley Child Care Centre was lit down the southern side of the building, towards the back of the driveway. Based on those features, and the use of accelerant, it was open to the jury to conclude that each of the fires had been the subject of some premeditation and pre-planning, and that none of them had been the result of some random or spontaneous act.

236 Further, the evidence demonstrated that the fires that were the subject of charge 4 and 5 had been lit in the early hours of the morning. The evidence of Effie Portelli and Daniel Tanner established that the fire to Tanner's (charge 4) had progressed to such an extent that smoke was visible and could be smelt at some distance by 1.40 am. The evidence of Senior Constable Kane established that Croxley Child Care Centre (charge 5) was well alight at 2.15 am.

237 The evidence in relation to charges 1, 2 and 3 was less specific. Based on the evidence of Sergeant Postma and Leading Senior Constable O'Sullivan, the fire at the police station (charge 1) occurred between 11.00 pm on 19 January and 6.40 am on 20 January. Based on the evidence of Father Moran, the jury would have been entitled to conclude that the fire to St Mary's (charge 2) took place between 10.30 pm and 6.30 am. The evidence of Reverend Hewlett, that he heard his dogs barking at some time between 1.00 am and 3.00 am on 27 January 2011, provided some support to the proposition that the fire at St Oswald's (charge 3) occurred at or about that time.

238 Further, it was particularly relevant that each of the five fires occurred during the two week period between 19 January and 3 February 2011. Four of those fires ― that were the subject of charges 1, 3, 4 and 5 ― occurred in relatively close proximity to each other, in the Ashburton, Mount Waverley and Syndal areas. The common features of each of the fires, the close connection of them in time, and the close connection of four of them in terms of location, gave weighty support to the proposition that each fire had been deliberately lit by the same person.

239 It is in that context that the evidence, as to the applicant's unexplained presence at a location and at a time relatively proximate to the location and time of each fire, was of particular significance in the trial. That evidence consisted, principally, of the recordings by the fixed CCTV camera that had been placed near the applicant's home in Yvette Drive, Rowville, the product of the tracking device that was affixed to the white Magna, and observations made by SSU operatives on the evenings on which the fires, that were the subject of charges 3, 4 and 5, occurred.

240 In order to connect that evidence with the applicant, it was necessary for the prosecution to link the applicant with the residence at 1 Yvette Drive, Rowville and with the white Magna. Based on the evidence, that was adduced at trial, the jury was entitled to conclude that each of those connections was established.

241 In particular, the following evidence established the connection between the applicant and the premises at 1 Yvette Drive. The vehicle registration certificate in relation to the white Magna nominated the owner of the vehicle as the applicant, and gave his residential address at 1 Yvette Drive, Rowville. The recordings of the CCTV camera, that were tendered in evidence, depicted the applicant entering, exiting, and being about, the premises at 1 Yvette Drive on or about the dates on which each fire occurred. In addition, a number of the SSU operatives gave evidence as to having identified the applicant entering, or departing from, those premises. For example, Mr Thompson gave evidence that at 10.55 pm on 26 January 2011 (the evening of the fire at St Oswald's) he observed the applicant departing the premises. Sergeant McGibbony observed the applicant returning home to those premises at 1.34 am on 31 January (the date of the fire at Tanner's). Sergeant Stevens observed the applicant entering the premises at 10.48 pm on 2 February 2011 (the evening of the fire at Croxley Child Care Centre).

242 Similarly, there was a significant body of evidence that connected the applicant with the white Magna. Again, the certificate of registration in relation to that vehicle specified that the applicant was the registered owner of the vehicle. Former Detective Senior Constable Fletcher ('DLSC Fletcher') gave evidence that during the search of the premises at 1 Yvette Drive, he located two Repco service documents in relation to the vehicle in the name of the applicant. Further, there were a number of sightings by the SSU operatives identifying the applicant as the driver and sole user of the vehicle. For example, Mr Thompson, Senior Constable Prpic, and Senior Constable Jackson, each observed the applicant driving the vehicle on the evening of 26 January to 27 January 2011 (relevant to charge 3), Detective Sergeant McGibbony observed the applicant driving the vehicle on the evening of 30 January to 31 January (relevant to charge 4), and Sergeant Stevens observed the applicant on multiple occasions driving the vehicle on the evening of 2 February to 3 February 2011 (relevant to charge 5). Sergeant Stormonth gave evidence as to the arrest of the applicant while he was driving the vehicle at about 2.20 am on 3 February 2011.

243 On this application, the applicant submitted that the footage recorded by the CCTV camera, that was located near the premises at 1 Yvette Drive, was not sufficiently clear to enable him to be accurately identified as the person depicted on the film. He submitted that on a number of occasions the prosecution witness relied on no more than the similarities between the clothing worn by the person depicted in the film and the clothing which he had been observed wearing.

244 That submission fails to take into account the totality of the evidence that linked the applicant with the premises at 1 Yvette Drive and with the white Magna. In particular, as we have noted, the surveillance operatives gave evidence in relation to charges 3, 4 and 5 observing the applicant either departing from or returning to the premises at 1 Yvette Drive at times that were relevant to the occurrence of the particular fires in question. There was a substantial amount of evidence connecting the applicant with the white Magna. In those circumstances, the jury was entitled to draw an inference that the person depicted in the CCTV footage near the premises at 1 Yvette Drive was the applicant, notwithstanding a lack of clarity of the footage itself.

245 The combined effect of the CCTV footage, the product of the tracking device connected to the white Magna, and evidence of observations of the applicant and the vehicle by SSU operatives (in respect of charges 3, 4 and 5) enabled the prosecution to prove that the applicant and his vehicle were present at or near the location of each fire at a time relevant to the ignition of that fire in the early hours of the morning on which each fire occurred. Significantly, at a time relevant to the ignition of each fire, the applicant's vehicle, for no apparent reason, was stationary for a period of time close to the site of that fire. In addition, on the occasion of the fires that were the subject of charges 1, 2, 3 and 4, the applicant's vehicle, having been stationary at that location, then travelled a direct route from the site of the fire to the applicant's home at 1 Yvette Drive, Rowville. In the case of the fire that was the subject of charge 5, the applicant's vehicle was travelling in the direction of his home, when he was intercepted by police and arrested.

246 The evidence, establishing those propositions, has been summarised in some detail earlier in these reasons. However, in essence it establishes the following.

247 In respect of the fire that was the subject of charge 1, the applicant's vehicle was stationary in Mummery Street, Mount Waverley (a short distance from Mount Waverley Police Station) from 1.15 am to 1.24 am on 20 January 2011. Having departed from Mummery Street at 1.24 am, the applicant's vehicle drove directly to the premises at 1 Yvette Drive, arriving there at 1.39 am. The evidence (excluding that of Mr Gelfe) demonstrated that the fire occurred between 11.00 pm on 19 January and 6.40 am on 20 January 2011.

248 In respect of the fire that was the subject of charge 2, the white Magna was stationary on Dandenong Road outside St Mary's between 12.16 am and 12.27 am on 21 January 2011. It then drove directly to the applicant's home in Yvette Drive arriving there at 12.51 am. It will be recalled that the fire must have occurred between 10.30 pm on 20 January and 6.30 am on 21 January.

249 In respect of the fire the subject of charge 3, the white Magna was stationary in Seaton Street, Ashburton between 1.17 am and 1.23 am on 27 January 2011. At that time Senior Constable Cook observed the white Magna parked unoccupied in Seaton Street directly opposite St Oswald's. The fire occurred between the evening of 25 January and the morning of 27 January. It will be recalled that Reverend Hewlett's dogs barked at some time between 1.00 am and 3.00 am on the morning of 27 January. Having departed Seaton Street at 1.23 am, the applicant's vehicle then drove directly to Yvette Drive, arriving there at 1.40 am.

250 In respect of the fire that was the subject of charge 4, the white Magna was stationary in Pimm Court, Syndal between 1.13 am and 1.17 am on 31 January 2011. It will be recalled that Ms Portelli and Mr Tanner each noticed smoke from the direction of Tanner's at 1.40 am. The vehicle departed Pimm Court at 1.17 am, and drove directly to Yvette Drive, arriving there at 1.31 am.

251 In respect of the fire that was the subject of charge 5, the white Magna was stationary in Shirley Avenue, Syndal between 2.10 am and 2.15 am. Sergeant Stevens saw the applicant get out of the vehicle at 2.10 am and walk into the lane leading to the railway line. Senior Constable Kane saw him close to the rear of Croxley Child Care Centre five minutes later. The applicant was then seen hurriedly departing that location at 2.15 am by Sergeant Stevens. It was at that time that Senior Constable Kane noticed that Croxley Child Care Centre was well alight. The applicant was intercepted and detained on the Monash Freeway driving in a direction towards his home.

252 In that way, the applicant's vehicle was proven to be in close proximity to the location of each of the fires in the early hours of the morning on which the fire occurred (or, in the case of the fire that was the subject of charge 3, probably occurred). In the case of the fires that were the subject of charges 4 and 5, the vehicle was stationary at that location at a time that was proximate to the time at which the jury could be satisfied that the fire occurred. As already mentioned, in the case of the fire that was the subject of charge 3, the applicant's vehicle was stationary and in close proximity to St Oswald's at about the time at which Reverend Hewlett heard his dogs barking. In the case of the fires that occurred at St Mary's (charge 2), and in the case of the fire at Tanner's (charge 4), the premises were on or close to a major road, and the tracking device depicted the white Magna circling the area for some time before being stationary close to the site of each fire.

253 On each occasion, the applicant was absent from his home late at night and in the early hours of the morning, driving to, and then stationary at, a location away from his home, for no apparent reason. In addition, on three of those occasions, the applicant engaged in some conduct that the jury was entitled to regard as suspicious, and connected with the fires. In the case of charge 2, the applicant's vehicle drove around the location of St Mary's on eight occasions during a three hour period before taking up a stationary position in Dandenong Road close to the church. In the case of the fire that was the subject of charge 4, the applicant twice visited Highbury Park in the period leading to the time at which the fire was lit. In the case of the fire that was the subject of charge 5, the applicant engaged in suspicious movements between 1.31 am and 1.55 am, particularly remaining stationary in Ashwood Reserve carpark between 1.48 am and 1.55 am.

254 Based on that evidence, the jury was entitled to engage in 'coincidence' reasoning, namely, that the applicant's presence ― denoted by his vehicle being stationary for a short time ― at or very close to the location of each fire on the date at which those fires occurred, and on two occasions at a time very close to the time at which the fire was lit, for no apparent reason, could not be accounted for by being a mere coincidence. Rather, the jury was entitled to exclude such an hypothesis as being entirely fanciful. Put another way, the chance of the applicant over a two week period innocently attending at or close to the location of each fire at a time in the early morning when each of the fires was, or could have been, lit is fanciful.

255 Further, in that connection, the jury was entitled to exclude the hypothesis, postulated by the applicant, that although his vehicle may have been near the scene of the fires, he was then in the company of someone else who actually lit the fires, or, alternatively, during the evening someone other than himself had entered the vehicle, and he had exited it, before the fire in question was lit. On each occasion on which the CCTV footage, in respect of the applicant's premises in Yvette Drive, Rowville, captured a person either entering or exiting the white Magna, that person was the applicant, and he was alone. The CCTV footage at the BP petrol station in Elwood depicted the applicant alone re-entering his vehicle on the evening on which the fire that was the subject of charge 2 occurred. On each occasion on which the surveillance operatives observed the applicant, on the evenings on which the fires that were the subject of charges 3, 4 and 5 occurred, the applicant was alone. The surveillance operatives did not observe anyone else with him. Further, there was no evidence adduced at the trial that on the evenings on which any of the fires occurred, the applicant was in the company of someone else, or that someone else had the use of the white Magna. In those circumstances, the jury was entitled to exclude the hypothesis, relied on by the applicant, that he was either acting in combination with someone else who lit the fires, or that, on the evenings in question, someone else had replaced him in the white Magna, between the time he left the Yvette Drive premises, and the time at which the fire occurred. On the state of the evidence, any such hypothesis was no more than fanciful, and could not be characterised as a reasonable possibility consistent with innocence.

256 In addition to the foregoing, the prosecution case was also strengthened by four other pieces of evidence.

257 First, there was the evidence of DNA, consistent with the DNA of the applicant, being found on the bottle that was left immediately next to the site of the fire at St Oswald's that was the subject of charge 3. The fact that the applicant's vehicle had been stationary near the church at a time relative to the fire, together with the evidence of Ms Jelic, entitled the jury to conclude that the applicant was the source of the DNA on the bottle. That being so, the jury was also entitled to regard it as a fanciful coincidence that someone else might have placed the bottle next to the site of the fire, in circumstances in which the applicant's vehicle had been stationary, for no apparent reason, close to the scene of the fire on the morning on which the fire was discovered.

258 Secondly, on the evening of the fires that were the subject of charges 1, 2, 3 and 5, the applicant was depicted by the CCTV footage and, in the case of the fires that were the subject of charges 3 and 5, observed to be wearing the same 'uniform', namely jeans, a dark long sleeved top and white runners. Significantly, at 11.00 pm on 30 January 2011 (the evening of the fire that was the subject of charge 3), the applicant had been observed wearing blue jeans and a white tee-shirt, but subsequently at 12.39 am he was depicted wearing a dark long-sleeved top, jeans and white runners. Similarly, on the evening of 2 February 2011 (relevant to charge 5), the applicant was observed wearing gymnasium gear between 9.47 pm and

10.49 pm. Subsequently, at 12.50 am on 3 February, he was observed wearing jeans, a dark long-sleeved top and white runners. The fact that on each of those occasions the applicant was wearing the same clothing ― and that on two evenings he had changed into that clothing in the course of the evening ― renders even more fanciful the hypothesis that it was a matter of mere coincidence that he was sighted at or near the location of each fire relative to the time at which the fires occurred.

259 Thirdly, the applicant's conduct shortly after the ignition of the fire at Croxley Child Care Centre, that was the subject of charge 5, reinforced the inferences that were to be drawn from the evidence to which we have just referred. The evidence of Senior Constable Kane that, when he first sighted the applicant on the walkway behind the child care centre, the applicant was running, but that he immediately slowed to a walk when he saw Senior Constable Kane, and the evidence of Sergeant Stevens, that he then saw the applicant come running out of the laneway into Shirley Avenue, enter his vehicle, and take off at a fast speed, had the effect of rendering even more suspicious the presence of the applicant close to the scene of Croxley Child Care Centre fire at about the time at which it occurred.

260 Fourthly, the three YouTube videos provided cogent evidence of a relevant motive for the applicant to have committed the five arson offences.

261 At the trial, and on this application, two principal issues arose concerning those videos. The first issue concerned the proof of any relevant connection between the applicant and the videos. This 'linking evidence', to which we have already referred, is set out below in greater detail. The second issue concerned whether the content of the videos were probative of a material motive of the applicant to commit the offences. In our view, the evidence adduced at the trial provided powerful support to the prosecution in relation to each of those two issues.

262 Detective Sergeant Barnes participated in the search that was conducted at the premises at Yvette Drive on 3 February 2011. In the bedroom of the premises, he located (inter alia) a Fujitsu laptop computer and a cardboard box which contained computer equipment, including a Toshiba hard drive. In the first drawer of the chest of drawers in the bedroom, he located a balaclava and a distinctive set of sunglasses that had an orange tint on the frame. The balaclava and sunglasses were tendered, and the jury was invited to conclude that they were worn by the speaker in one or more of the YouTube videos or in other videos featuring 'Travis Truman'. In addition, in the centre console of the white Magna, Sergeant Barnes located a blue cigarette lighter which, the prosecution contended, was identical to a blue cigarette lighter depicted in one of the videos, and which had a distinctive tear in the label affixed to it.

263 DLSC Fletcher made inquiries in relation to a YouTube account with the username 'SeerTravisTruman'. He downloaded and saved 44 videos that were on the YouTube account. Three of those videos related to arson, namely 'Arson Insight 1', 'Arson Insight 2' and 'Expert Arson Insight'. Those three videos were tendered in evidence. DLSC Fletcher sent a request to YouTube for all information in relation to the YouTube account. YouTube responded, stating that the user had registered the account using the email address truthmediamail@hushmail.com, the account had been generated on 22 April 2010, and that the country of origin was Australia. YouTube also provided an IP address.

264 DLSC Fletcher noted that there was a link on the YouTube account for SeerTravisTruman to a website with the URL http://www.truthmedia.8k.com/. This internet address displayed a page called 'Forbidden Truth Media', with a number of written entries purported to be by a person called 'Seer Travis Truman'. The webpage contained a tab entitled 'Donations'. When the tab was clicked, it took DLSC Fletcher to a section of the webpage that called for donations to support the cost of the webpage. Those donations were accepted via PayPal, with the email account for the recipient of the donations being truthmediamail@hushmail.com. DLSC Fletcher requested that PayPal provide all account details for the PayPal account linked to the email address truthmediamail@hushmail.com. In response, PayPal returned information that the account was in the name of the applicant, with the address, telephone number and date of birth of the applicant, and the same email address as the applicant. A payment via PayPal had been made using the applicant's credit card.

265 Detective Senior Constable Wallace obtained the registration document for the Facebook account 'Seer Travis Truman'. The account was registered to the applicant at his former address. The Visa card number was the same number as that of the applicant. Senior Constable Wallace also gave evidence that he found on the Toshiba hard drive, that was seized from the applicant's premises, a two page document entitled 'A True Reality by a Tortured Victim Creation of Society' (which was tendered). In the video entitled 'Expert Arson Insight', the speaker stated that an arsonist is a created torture victim of his society.

266 Alexander Robertson was a forensic analyst attached to the Victorian Police E-Crime Unit. In 2013, he examined the Fujitsu laptop and the Toshiba hard drive. He expressed the view that the Fujitsu computer had video editing tools necessary to make the three arson videos and to create and design a website. He also noted that the three arson videos were stored on the computer.

267 Based on that evidence, the jury was entitled to conclude that there was a relevant connection between the three arson videos and the applicant. In particular, there was sufficient evidence for the jury to accept that the applicant was either the person who spoke in the videos, or was closely connected with the production of them. First, the videos were connected with the user name 'Seer Travis Truman' which was registered to the applicant on Facebook. Secondly, the videos linked to the Forbidden Truth website which linked to the PayPal account registered to the applicant. Thirdly, in two of the videos the speaker wore a distinctive balaclava, and in another video (not concerning arson) he wore a distinctive set of sunglasses, the frames of which were tinted orange, those items being identical to the balaclava and sunglasses found in the applicant's bedroom. In addition, in one of the videos, there was depicted a blue cigarette lighter, which closely resembled the cigarette lighter located in the white Magna. Fourthly, Detective Senior Constable Wallace located a 'disclaimer' document on the Toshiba hard drive which mirrored that which appeared on the website linked to the YouTube videos. Fifthly, Detective Senior Constable Wallace located on the Toshiba hard drive the essay entitled 'A True Reality by a Tortured Victim Creation of Society', which was the same phrase that appears in one of the videos.

268 The applicant sought to counter this evidence by pointing to evidence which, he said, showed that, on the prosecution case, a person other than the applicant had access to the Fujitsu laptop. There was evidence that, according to the clock in that computer and making adjustments for daylight saving, it was in use at various times when the data from the tracking device attached to the white Magna showed the vehicle to be away from 1 Yvette Drive, Rowville. The applicant submitted that this included times when there was access to the 'cgi-bin' in connection with the Truth Media website and that this indicated that a person with administration entitlements in respect of that website had been using the laptop to access the website at times when, on the prosecution case, the applicant was not at home.

269 In support of this 'alibi' argument, the applicant relied at trial on a table comparing the laptop's internet data and the tracking device data from 12 January to 2 February 2011. Several instances were identified but it suffices to mention two. It was said that the tracking device placed the white Magna at a BP service station in Mulgrave on the night of 18 January 2011 and at a gym in Dandenong on the night of 2 February 2011, while the laptop was in use. There was CCTV footage at the petrol station and surveillance evidence at the gym identifying the applicant, which contained no suggestion that the applicant had the laptop with him. This evidence was not true alibi evidence because it did not concern the times at which the fires were alleged to have been lit. Instead, the applicant suggested that the evidence was inconsistent with him having exclusive access to the laptop, and exclusive administrative access to the Truth Media website.

270 In our opinion, the jury was amply entitled to conclude that the applicant was the person who spoke in the YouTube videos, or was closely connected with their production, on the basis of the evidence we have previously set out, despite the matters just mentioned. It was not a necessary part of the prosecution case that the applicant was the only person with access to the Fujitsu laptop or the only person with administrative access to the Truth Media website. But in any event, the prosecution led evidence questioning the accuracy of the clock on the laptop computer. The expert witnesses, Mr Robertson and Mr Hewitt, who gave evidence about the computer, also gave answers in cross-examination which would have justified the jury in finding that access to the 'cgi-bin' part of the website occurred automatically when the website was open on the computer. In the circumstances, it was open to the jury to put the 'alibi' argument to one side.

271 The content of the videos was particularly relevant for two reasons. First, in it, the speaker articulated a deep seated hatred of society, justified the taking of revenge on society, and advocated that that vengeance should be exacted by acts of arson. In that way, the applicant, by being connected with the videos, was proven to have a cogent motive to commit the offences with which he was charged. Secondly, and relevantly, in the videos the speaker advised the use of a particular methodology that was similar to the manner in which the five fires were lit in the present case. In particular, he advocated the use of matches or a cigarette lighter combined with an accelerant such as petrol or kerosene. He stated that the arsonist should use his own vehicle to ensure that his movements cannot be monitored. He advocated the use of a simple timing device, albeit not the same kind of device which was apparently used in the fire that was the subject of charge 3. The speaker also advised that the arsonist should not have anything on his person or in his vehicle that could link him to the arson, and that the arsonist should not wait around and watch the fire because that is how many arsonists are apprehended.

272 Based on the foregoing, it is clear that the prosecution presented a strong circumstantial case implicating the applicant in the commission of each of the five fires that were the subject of the charges against him. In summary, the evidence established, beyond doubt, that each of the fires had been deliberately lit. There were common features pertaining to each of the fires that supported the proposition that they were all lit by the same person. The evidence established that, on the occasion of each fire, the applicant had been present close to the point of ignition of each fire. Importantly, the evidence established that the applicant's white Magna had been stationary for a short period of time at a location close to the point of the fire. In the case of two of the fires ― that were the subject of charges 4 and 5 ― the applicant's vehicle was stationary in those positions at a time that was closely associated with the time of ignition of the relevant fire. In respect of the other three fires ― that were the subject of charges 1, 2 and 3 ― the applicant's vehicle was stationary close to the point at which the fire was lit, at a time that was consistent with the time of ignition of the fires. After attending at the scene of each fire, the applicant's vehicle travelled directly back to (in the case of the fires that were the subject of charges 1, 2, 3 and 4) or towards (in the case of the fire that was the subject of charge 5) the applicant's home in Yvette Drive, Rowville.

273 The evidence of the DNA, detected on the bottle that was located at the point of ignition of the fire that was the subject of charge 3, added further weight to the connection of the applicant with the ignition of that fire. On the occasion of four of the fires, the applicant was demonstrated to be wearing a particular 'uniform', namely, a dark long-sleeved top, jeans and white runners. The applicant's hurried departure from the scene of the fire, that was the subject of charge 5, was consistent with what might be expected to be the conduct of a person who had deliberately lit that fire. Finally, the evidence of motive, comprising the three YouTube videos associated with the applicant, was of significance. The fires that were lit were consistent with the conduct of a person who had a grievance against society as a whole, being directed to a police station, two church buildings, a commercial enterprise, and a child care centre. The methodology of the person responsible for each of the fires reflected, to some extent, the advice that was given by the person who spoke on the YouTube videos.

274 Taking all those matters together, the combined weight of the circumstantial case presented by the prosecution was such that it was clearly open to the jury to find the applicant guilty of each of the five charges. Accordingly, we are not persuaded that the verdicts on those charges were unsafe and unsatisfactory, or that they were unreasonable or could not be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act. The applicant has not established that a jury, if it acted properly, must have entertained a reasonable doubt. Ground 4 is not made out.

275 Accordingly, leave to appeal on this ground is refused.

Ground 5 - The judge failed to direct sufficiently as to which evidence related to which charges

276 In support of ground 5, the applicant submitted that the judge failed to give adequate directions as to the particular evidence related to each charge. He submitted that the judge only directed the jury to consider each charge separately, but his Honour did not detail which evidence related to each count. Rather, the applicant submitted, the judge only gave one example of a witness's evidence - the evidence of Sergeant Postma - that was admissible solely in relation to one charge (charge 1). Further, it was submitted that the judge failed to expressly direct the jury that it should disregard any decision it made on a particular charge when considering the other charges.

277 The applicant contended that that (alleged) omission by the judge was particularly prominent in relation to the evidence of the surveillance witnesses. In support of ground 5, the applicant relied on a number of different extracts from the charge given by the judge to the jury.

278 In a case in which the indictment contains multiple charges, the judge is required to direct the jury that it must consider each of the charges separately, and that it should reach its verdict in relation to each such charge only by reference to the evidence that is relevant and admissible in respect of that charge.[57] Ordinarily, in such a case, it is necessary that the judge relate the evidence to each of the charges, so that the jury is instructed as to which evidence relates to each particular charge.[58]

279 In the present case, it is clear that the judge amply complied with each of those two requirements. In particular, early in his charge, the judge gave the standard direction to the jury that each of the charges must be considered separately. His Honour directed the jury that it would be wrong for it to conclude that just because it found the applicant guilty or not guilty of one charge, he must therefore be guilty or not guilty, as the case may be, of another charge or all the charges. The judge stated that that reasoning was not permitted. He again emphasised to the jury that it must consider each charge separately. He told the jury that in doing that, it must consider the evidence that related to that particular charge, so that if a piece of evidence is only relevant to one charge, the jury may only use it when considering whether the applicant was guilty of that charge.

280 In giving that direction, the judge also noted that some of the evidence adduced in the trial related only to one charge. He said that there were a number of instances of that, but, taking one example, the evidence of Sergeant Postma was only relevant to charge 1. Pausing there, that direction was amply sufficient to make clear to the jury that it must consider each charge separately, by reference to the evidence that was admissible in respect of that charge. It was not necessary for the judge, at that stage, to give a series of examples of that proposition. The instance that he gave ― the evidence of Sergeant Postma ― was sufficient to make clear to the jury how it must apply the direction so given by the judge.

281 The judge then ― correctly ― told the jury that some evidence was admissible in respect of all the charges. In particular, he directed the jury that the evidence of the YouTube videos was relevant to the issue of motive, which in turn was relevant to each of the charges. Further, and by way of example, he noted that the prosecution had contended that the evidence of the presence of the applicant's vehicle in the vicinity of each fire was evidence that could not be discounted as mere coincidence.

282 Further, contrary to the submissions made by the applicant, the judge directed the jury, in detail, as to the evidence that was admissible in relation to each particular charge. Those directions occupied a large section of the judge's charge to the jury. In particular, in that section of his directions, the judge reminded the jury of each piece of evidence that was relevant to each particular charge, and, where material, he gave or reinforced directions to the jury about aspects of that evidence.

283 For example, in directing the jury in relation to the evidence relevant to charge 1, the judge gave a direction about how it might use the evidence of business records given by Mr Gelfe of Telstra. In outlining the evidence relevant to charge 2, the judge reminded the jury that it must apply the directions, that he had earlier given concerning opinion evidence, when considering the evidence given by Detective Woodcock that he detected the presence of accelerant at the fire. Before outlining the evidence relevant to charges 3, 4 and 5, the judge gave detailed directions to the jury as to the potential unreliability of the identification/recognition evidence given by the nine SSU officers who gave evidence on those charges, and as to the caution that the jury must exercise in assessing that evidence.

284 Further, in directing the jury about the evidence that was admissible and relevant to each charge, the judge outlined the main aspects of the submissions that had been made by the prosecution, and the main aspects of the response made by the applicant, in respect of that particular evidence. The judge's charge in total was contained in more than 200 pages of the transcript. His Honour's outline of the evidence relating to each charge comprised almost 70 of those pages.

285 Specifically, on charge 1, the judge reminded the jury of the evidence of Sergeant Postma, and of the evidence of Mr Morgan and Ms Noble, as to the cause of the fire. The judge then reminded the jury of the evidence of the tracking device and the CCTV footage, and the evidence of Mr Gelfe as to the time at which there was a break in the telecommunication services as recorded by Telstra. The judge reminded the jury that, as with each charge, the prosecution case on charge 1 also included the evidence of motive consisting of the YouTube videos.

286 In respect of charge 2, the judge reminded the jury of the evidence of Father Moran. He referred to the evidence of the tracking device attached to the white Magna that demonstrated that the vehicle passed by the church and Alma Park on eight separate occasions in the three hour period. He referred to the evidence relied on by the prosecution to establish that the applicant attended at the BP service station in Elwood shortly after 10.00 pm, that evidence consisting of the receipt found in the applicant's vehicle, the original receipt obtained by police in the service station, and the CCTV footage of the station. The judge then referred to the evidence of the tracking device that recorded the vehicle being stationary outside St Mary's between 12.16 am and 12.27 am. The judge also referred to the observations made by Detective Woodcock, including his opinion that some type of accelerant had been used in the fire.

287 In respect of charge 3, the judge referred to the evidence of the vicar, Reverend Hewlett, and to the evidence of Mr Xydias, regarding the damage to the door to St Oswald's. The judge also referred to the evidence as to the location of the bottle adjacent to the door. It was at that point that the judge gave the directions to the jury about identification and recognition evidence to which we have referred. Having done so, the judge referred to the evidence of the surveillance witnesses who are relevant to charge 3, namely Messrs Thompson, Jackson, Cook and Prpic, in some detail. His Honour also drew the jury's attention to the CCTV footage that recorded the applicant's vehicle returning to the Yvette Drive premises at 1.41 am. The judge outlined to the jury the evidence relating to DNA that was extracted from the sample taken from the surface of the bottle that had been left outside St Oswald's on the night of the fire. The judge reminded the jury of the detailed evidence that was given by the various witnesses who are relevant to that aspect of the case, including the scientists Ms Widjaja, Ms Labas and Ms Nguyen, and the evidence given by Ms Jelic. In doing so the judge gave a direction to the jury as to the limitations of DNA evidence, and his Honour also correctly outlined to the jury the significance of the likelihood ratio referred to by Ms Jelic.

288 In relation to charge 4, the judge referred to the evidence of Mr Schache (the owner of Tanner's), and the evidence of Ms Portelli and Daniel Tanner as to the time at which they first smelt or saw smoke from the direction of the bakery. The judge reminded the jury of the evidence of Mr Xydias relating to the cause of the fire. The judge then outlined to the jury the evidence of Sergeant McGibbony and Sergeant Heinan as to the surveillance that was conducted on that night, and, in particular, the evidence of Sergeant McGibbony that at 1.19 am he saw the white Magna exit the southern end of Pimm Court turning right into Matthew Street. The judge also outlined to the jury the evidence given by Mr Heinan, the tracking device evidence, and the evidence of the CCTV footage, relating to charge 4.

289 Finally, in relation to charge 5, the judge reminded the jury of the evidence of Ms Cockinaris (who operated the child care centre), and the evidence of Mr Xydias as to the cause of the fire. The judge outlined to the jury the evidence of the three surveillance witnesses, Mr Myers, Sergeant Stevens and Senior Constable Kane. The judge referred to the footage taken from the CCTV camera at the Syndal Railway Station.

290 In that way, the judge, with commendable detail, outlined to the jury the evidence that it should consider in relation to each charge in a manner that made it clear to the jury that it must consider each such charge separately, and by reference to that evidence alone (in addition to the coincidence evidence and the motive evidence that the judge referred to).

291 As mentioned, the applicant referred to a number of individual aspects of the judge's charge which, he contended, erroneously suggested to the jury that it might consider evidence, admissible on one charge, in relation to the other charges. For the reasons that follow, the applicant has failed to establish any relevant error by the judge in that respect.

292 The applicant submitted that in directing the jury in relation to charge 3, the judge incorrectly suggested that the CCTV footage and the tracking device evidence, in respect of a particular charge, could bolster the observations made by the SSU operatives. In essence, the judge, in directing the jury in respect of the evidence admissible on each particular charge, referred (in respect of charges 3, 4 and 5) to the evidence of the SSU witnesses, and to the product of the CCTV footage and the tracking device evidence. It was permissible for the jury to consider the observations made by the SSU witnesses in respect of a particular charge in the light of the CCTV evidence and the tracking device evidence that was relevant to that charge. The judge did not, at all, suggest, for example, that the CCTV footage or tracking device evidence in relation to one particular charge could, in some way, bolster or support the evidence of observations made by SSU witnesses relevant to a different charge. Accordingly, the error complained of by the applicant is not established.

293 The applicant next contended that the judge erred when referring to 'common evidence' in respect of charges 3, 4 and 5. Again, no error is demonstrated. The judge used the phrase 'common evidence' when referring to the evidence as to the manner in which the SSU teams were briefed at the commencement of each shift by the relevant supervisor. In that respect, the evidence given by the supervisors of the shifts, that were relevant to charges 3, 4 and 5, was, in effect, very similar, no doubt as the particular supervisor was complying with standard police practice in that respect.

294 The applicant further submitted that the judge erroneously suggested to the jury that the evidence of Senior Constable Cook, as to his observation of the white Magna in Seaton Street on the evening of the fire that was the subject of charge 3, was bolstered by the CCTV footage of the vehicle leaving Yvette Drive.

295 Senior Constable Cook, in his evidence, said that when he turned into Seaton Street at 1.25 am, he observed the white Magna parked over the road from the church and that the vehicle was unoccupied. The judge noted that, in cross-examination, it had been suggested to the witness that he could not eliminate the possibility that someone was lying down in the back of the vehicle or was under the dashboard level or was bending out of sight. It was in that context that the judge suggested to the jury that it consider that proposition (advanced in cross-examination) by reference to the other evidence, including the CCTV footage of the vehicle departing from and later returning to the premises at 1 Yvette Drive, and the jury's perception of whether at those times it was occupied by more than one person. In that respect, the judge's direction to the jury was entirely orthodox, namely, that it should consider such possibilities as those raised by the applicant, in the context of all the relevant evidence relating to the particular charge in question.

296 Finally, the applicant contended that the judge failed to give a specific direction to the jury that certain items of evidence could only be used in respect of a specific charge, and that that evidence could not be taken into account in considering any other charge. In particular, the applicant referred to the following items of evidence: the alleged driving pattern ('loop driving') undertaken by the applicant on the evening of 20 January to 21 January 2011, that was relevant to charge 2; the evidence of flight from the scene of Croxley Child Care Centre fire (charge 5); the CCTV evidence from the Elwood BP service station (charge 2); the clothing worn by the applicant on the evening of 2 February 2011 (charge 5); the visits by the applicant to the parks that were the subject of the evidence adduced (charge 4); the evidence that the applicant was carrying a bottle when he returned to the Yvette Drive premises on the evening of 31 January 2011 (charge 4); and the evidence of the visit by the applicant to Safeway Carnegie premises (charge 4). The applicant submitted that the coincidence notices did not permit the prosecution to rely on any evidence, other than the alleged presence of the applicant near two or more fires, as being cross-admissible between the charges.

297 The submission made by the applicant is without substance. As already noted, the judge, at an early stage in his charge, correctly instructed the jury that it should consider each of the charges separately, and that it must consider the evidence related to the particular charge only in respect of that charge. The judge then set out, in substantial detail, the evidence that was admissible in respect of each particular charge. Having done so, his Honour gave correct directions to the jury as to the coincidence reasoning relied on by the prosecution. In particular, he told the jury that the prosecution submitted that the similarities between each of the five fires were such that it could find that the only rational explanation was that the same person was responsible for each fire. Secondly, the judge explained that the prosecution also contended that the jury should be satisfied that coincidence could not explain why the applicant was at or near the scene of each of the five fires, in a two week period. In that way the judge made clear to the jury that it must first consider each fire separately, by reference to the evidence that was only admissible in relation to that fire. Having completed that task, the jury was then entitled to engage in the coincidence reasoning relied on by the prosecution. In that context, it was clear to the jury that the items of evidence, relied on by the applicant in this submission, could only be relevant to determining the guilt of the accused on the particular charge in respect of which the evidence was relevant.

298 In that context, the applicant further contended that the judge failed to give a direction to the jury that it should not engage in tendency reasoning in the form of the direction discussed by Charles JA in R v FJB.[59] He submitted that the jury ought to have been directed that proof of guilt on one count was not relevant to the question of guilt on another count, that the evidence led in support of a count did not go in proof of any other count, and that the evidence led in support of one count must not be treated as tending to prove an inclination in the applicant to the relevant conduct.

299 In our view, the directions given by the judge were sufficient to ensure that the jury did not engage in impermissible tendency reasoning. As discussed, at an early point in the charge, the judge directed the jury that it must consider each charge separately. His Honour told the jury that it was impermissible to reason that, because the applicant might be guilty or not guilty of one charge, he would therefore be guilty or not guilty of any other charge. Further, when discussing the coincidence reasoning relied on by the prosecution, the judge cautioned the jury against deciding the case on the basis of feelings of sympathy or prejudice about the applicant. He again reiterated that if the jury decided that the applicant was guilty of one charge, it must not reason that he was therefore guilty of the other charges. His Honour told the jury that it must not use the evidence relating to each charge for any prejudicial purpose, or for any other purpose than that relied on by the prosecution, namely, coincidence reasoning.

300 In the circumstances of the case, those directions were adequate to allay any risk that the jury might otherwise engage in tendency reasoning. As such, they fulfilled each of the purposes discussed by Charles JA in FJB.

301 It follows from the foregoing that the applicant has failed to establish the error alleged in ground 5.

Ground 6 - The judge gave inadequate identification evidence warnings

302 Ground 6 is primarily concerned with the directions by the judge concerning evidence given by surveillance operatives of observations made by them of the applicant, and of the white Magna, on the evenings on which the fires, that were the subject of charges 3, 4 and 5, occurred. In addition, the applicant has contended that the judge erred by failing to give 'identification directions' in respect of a number of objects, including the balaclava, gloves, sunglasses and lighters that were found in the applicant's vehicle or in the Yvette Drive premises, the white Magna, and the bottle that was found next to the site of the fire that was the subject of charge 3.

303 In particular, the applicant advanced the following arguments in respect of the directions given by the judge concerning the observations of the surveillance operatives:

(1) The applicant submitted that the judge erred in directing the jury that the identification evidence, given by those operatives, was a 'two-step' process and not a 'three step' process. In particular, the applicant submitted that the judge failed to instruct the jury that the process of identification, undertaken by the operatives, involved a necessary first step of correctly retaining a memory of the photograph of the applicant which had been shown to the operative during the briefing that took place before each surveillance shift. The applicant also contended that the judge erred in directing the jury that the surveillance evidence was recognition evidence, by presuming (erroneously) that familiarity with a person's photograph is equivalent to being familiar with that particular person.

(2) The applicant submitted that the judge erred by inferring to the jury that whereas, in other cases, caution might be required in respect of an identification witness because that witness was stressed or fatigued, in the opinion of the judge the surveillance operatives were less prone to such error due to their training. It was submitted that the judge's directions in that regard were unbalanced. In particular, (it was submitted) the judge failed to direct the jury that the operatives had not received any 'anti displacement' training or any 'external proficiency training'.

(3) The applicant submitted that the judge erred in failing to direct the jury to be 'especially cautious' of convicting an accused in an identification case even if there is other evidence implicating the accused in the offence. It was submitted that the judge ought to have directed the jury that corroborative evidence cannot validate identification evidence which might be unsatisfactory or deficient. In support of that proposition, the applicant placed particular reliance on R v Akgul.[60]

(4) Finally, the applicant submitted that the directions given by the judge concerning the 'displacement effect' were erroneous, and inadequate.

304 In response, counsel for the respondent submitted that the judge gave adequate warnings to the jury concerning the identification evidence given by the surveillance operatives. In particular, the judge was correct to direct the jury that the identification evidence was recognition evidence, involving a two-step process. Further, counsel contended that the judge did not err in directing the jury about particular factors concerning the particular witnesses who gave identification evidence. The directions, complained of, were given in the context of an outline by the judge of a number of factors which might affect the reliability of the particular witness's evidence. In giving those directions the judge did not express his opinion that the surveillance witnesses were less prone to error, but, rather, he listed factors that were relevant for the jury to consider when assessing the reliability of the evidence. Finally, counsel submitted that the directions given by the judge as to the potential for the displacement effect were adequate and appropriate in the circumstances.

305 The law has long recognised that it is important that a trial judge should give adequate directions to a jury concerning the need for caution in assessing the evidence given by identification witnesses, and in determining whether to accept that evidence and, if so, the weight to be given to it. Those directions, established by a series of decisions of higher courts, are now enshrined in the Jury Directions Act 2015 ('Jury Directions Act'). They are the product of the experience of the law that evidence as to identification (or recognition) given by a witness may be flawed, notwithstanding that the particular witness might be honest and confident in his or her evidence. The law recognises that there is a risk that a jury may not be sufficiently conscious of the need to take into account the potential for error that is inherent in the processes of identification and recognition by witnesses.[61]

306 Division 4 of the Jury Directions Act specifies the directions that a judge is required to give to a jury in relation to identification evidence. Section 35 defines 'identification' evidence to include (inter alia) recognition evidence. Section 36 specifies the particular directions that a judge must give to the jury concerning such evidence. Section 37 provides that, except as provided in Division 4, a trial judge is not required to give the jury any directions regarding the unreliability of identification evidence, and that any rule of common law to the contrary is abolished.

307 Specifically, s 36 of the Jury Directions Act provides as follows:

36 Direction on identification evidence

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on identification evidence.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify the significant matters that may make the evidence unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must -

(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and

(b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and

(c) inform the jury that -

(i) a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and

(ii) the mistaken evidence of a witness may be convincing; and

(d) if relevant, inform the jury that a number of witnesses may all be mistaken; and

(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

308 Before turning to each of the issues raised by the applicant concerning the directions given by the judge as to the identification evidence given by the surveillance operatives, it is convenient, first, to outline the directions which the judge gave to the jury concerning that evidence.

309 As discussed under ground 5, in his charge to the jury, the judge outlined, in some detail, the evidence that it should consider in respect of each charge. After summarising the evidence that was relevant to charges 1 and 2, the judge noted that the evidence relating to charges 3, 4 and 5 included the observations made by the surveillance operatives. His Honour noted that that identification evidence was important to the case on each of those charges, which depended 'to a significant extent' on the evidence of the surveillance operatives. The judge told the jury that it was necessary to give to it directions concerning the identification evidence given by those witnesses.

310 His Honour then noted that in the case of each operative, the witness was familiar with the applicant's appearance by being shown photographs and given descriptions of the applicant as part of the briefings that were held before each shift. Thus, the judge stated that the form of identification evidence, given by such a witness, was 'recognition' evidence. His Honour told the jury that that evidence involved two stages. First, the witness must have made an accurate observation of the person or vehicle in question. Secondly, the witness must have accurately recognised that person or vehicle as 'the target or the target car'. The judge then stated:

In this case the prior knowledge comes from photographs of Mr Davies provided to the surveillance crews and the intelligence and the photograph of the car with him next to it. In some instances some of the surveillance witnesses had done more than one night of surveillance work on Operation Navarre and as such they were recognising the man as Mr Davies from other nights of surveillance as well as the photographs shown on the particular night of the fire and they were recognising his car also from previous shifts.

311 The judge then instructed the jury that identification evidence is potentially unreliable, so that the jury must exercise caution in determining whether to accept it, and, if it did accept it, in determining the weight to be accorded to that evidence. The judge told the jury that one of the reasons that such evidence is potentially unreliable is that while a witness may honestly believe the evidence to be accurate, the witness might be mistaken, and that the witness' evidence might be convincing. The judge also told the jury that '... a number of different witnesses may all be mistaken in their identification'.

312 Having given, and elaborated on, that direction, the judge instructed the jury that there were two 'broad matters' that might be relevant to its assessment of the reliability of the identification evidence. The first matter concerned the circumstances in which it was said that the applicant had been observed, or his vehicle observed. The second matter concerned the characteristics of the particular witness who gave the evidence.

313 The judge then elaborated on each of those two matters. He directed the jury that it must take into account the circumstances in which the particular observation was made, and, in particular, it should consider the duration of the observation, the lighting, or whether the witness saw the person's face or profile or only his back, and whether there was any object or person who obstructed the view of the witness. The judge then gave instructions to the jury concerning matters that it should take into account in considering the characteristics of the witness who gave the identification evidence. We shall return to that aspect of the direction shortly when considering the second point raised by the applicant in support of ground 6. The judge then gave to the jury directions concerning the potential 'displacement effect' which can occur when a person is shown a photograph of a suspect before identifying that suspect. We shall also return to those directions shortly when considering the fourth matter raised by the applicant under ground 6.

314 Having given those directions to the jury, the judge outlined the evidence that was relevant to each of charges 3, 4 and 5. In doing so his Honour summarised in some detail the evidence given by each surveillance witness, and his Honour summarised relevant aspects of the cross-examination of those witnesses by the applicant. In respect of those witnesses, and, in particular, in respect of the principal witnesses (such as Leading Senior Constable Jackson (charge 3), Sergeant McGibbony and Leading Senior Constable Heinan (charge 4) and Sergeant Stevens and Leading Senior Constable Kane (charge 5)), the judge reminded the jury that it must take into account the directions that he had previously given about identification evidence, and his Honour outlined, in respect of those witnesses, some of the matters which the jury should consider in assessing that witness's evidence.

315 Thus, for example, in respect of the evidence given by Leading Senior Constable Jackson in respect of charge 3, the judge told the jury:

Now keep in mind with this witness all those matters that I've raised as to the difficulties and circumstances of making observations; the time of night, the lighting, seeing who he said was Mr Davies in the shadows at one point, the short timeframes as he passes Mont Iris Avenue twice in a moving car ... So the matters to be cautious about and analyse carefully are the brief timeframes, the lighting, the images, the moving car as well as Mr Jackson's experience in his task that night to make observations.

316 In respect of the evidence of Senior Constable Kane (concerning charge 5) the judge directed the jury as follows:

So consider the matters or questions that I spoke about as to the quality of the lighting, the duration of the observation Mr Kane had, the information that was passed onto the log keeper, the sequence of Mr Stevens' observations of Mr Davies getting out of the car heading to the lane, going in the direction of Hunter Street, Mr Kane seeing him running back, walking, then back to Shirley Avenue and Mr Stevens taking it up again and finally the arrest where Mr Davies ... was in his car on his own and in the clothes described by Mr Kane. ... Consider all the dangers and the matters that require you to be cautious. Consider all the arguments put by the prosecutor and Mr Davies about the identification of Mr Kane and generally about surveillance evidence. As I said earlier, in dealing with the warnings about identification evidence, it is important that you take care in determining whether you accept the evidence and if you do accept it, what weight you give to it.

317 It is in that context that we turn to the particular matters raised by the applicant under ground 6.

318 In our view, the directions given by the judge to the jury, concerning the identification processes involved in the evidence of each of the surveillance witnesses, were correct and balanced. As his Honour noted in the course of his charge, some of the witnesses had not previously had any involvement in Operation Navarre before the particular shift in which the witness made the relevant observation. Before the commencement of each shift, the operatives had been briefed by being shown photographs of the applicant. In each such case, the particular witness equated the image of the applicant depicted on the photographs with the person who he or she observed in the course of the shift. In addition, some other surveillance operatives had participated in previous shifts, in which they had made similar observations. In the case of those witnesses, the evidence given by them, in respect of their observations on the shift in question, was that the person, who the witness observed on the occasion in question, was the same as the person who that witness had previously seen, both during an earlier shift, and as depicted on the photograph. In the case of each witness, the evidence given by that witness, as to the observation of the applicant at the critical time, was essentially evidence equating the person, who the witness observed, with the prior mental image held by that witness of the applicant, whether (in the case of some witnesses) that image was derived solely from being briefed with a photograph of the applicant, or (in the case of other witnesses) the image was a composite of the memory of the photograph of the applicant and also the witness' memory of previous sightings by him or her of the applicant.

319 In this application, the applicant takes issue with the judge's characterisation of such evidence as recognition evidence, rather than identification evidence. However, the particular label that should be given to the evidence in question is not critical. Rather, what is relevant is the process by which the witness has sought to equate the prior mental image held by the witness of the applicant with the person observed by the witness on the date in question. Nevertheless, such a process is more apt to be described as one of recognition rather than one of identification. It is a process that is quite common in everyday life. For example, it is not uncommon to recognise a public figure from previous depictions of that person in the media. It is that process that was involved in the evidence of each of the surveillance witnesses in question.

320 As the judge correctly instructed the jury, such a process involves the witness equating the person, observed by the witness, with the image held by the witness of that person (whether from a photograph or from a previous acquaintance). Accordingly, the judge correctly directed the jury that the process involved two steps, in each of which there was a potential for error. The first step involved the issue of the accuracy of the observation made by the witness of the person on the night in question, in this case, the evening on which the fires, that were the subject of charges 3, 4 and 5, occurred. The second step involved the capacity of the witness to equate that observation with the witness' previous memory of the applicant, which, as we have stated, was derived either wholly, or in part, from a photograph or photographs of the applicant previously shown to the witness. In that respect, it was relevant for the judge to direct the jury that it should take into account the characteristics of the particular witness, including the fact that the witnesses were each trained surveillance officers. In giving that instruction, the judge reminded the jury of the argument made by the applicant that the witnesses 'were on a mission', so that they were more likely to make assumptions and claim to identify the applicant because that was the job that they had.

321 In that way, the judge appropriately juxtaposed the competing propositions that were advanced by the parties in respect of that aspect of the recognition process involved in the evidence of the particular witnesses. The judge also told the jury that, in considering the characteristics of the witnesses in question, the jury was not concerned with a witness who was making observations in a stressful or fearful circumstance, such as when witnessing the commission of a crime. Contrary to the submissions of the applicant, the judge did not, thereby, express an opinion that the operatives were less prone to error and not under stress or fatigue. Rather, he correctly identified to the jury a specific feature of the observations made by the witnesses which was relevant to the assessment by the jury of the accuracy of the second stage of recognition involved in the evidence of each of the witnesses.

322 It is in that context that the judge gave to the jury directions concerning the risk of a displacement effect that is involved in the process of recognising a person from a previous photograph. His Honour stated:

I just want to mention a particular matter raised by Mr Davies in cross-examination and in his address. As you know, the surveillance witnesses saw the photographs of Mr Davies and committed the images to their memory and/or they carry copies of the images with them in the cars, on their phones or computers or in hard copy. So when they saw someone doing something, did they simply displace the image of the actual person in effect, see Mr Davies from the photographs doing the particular thing; driving the car or walking somewhere. So I warn you about what is known as the displacement effect. This effect can occur when a person is shown a photograph of a suspect before identifying them. The witness' memory of the person observed can be effectively replaced by a memory of that photograph. In any later identification there is a risk that the witness might unintentionally identify the accused because that is who is depicted in the photograph instead of a person actually doing the various acts on the night in question. So keep this in mind.

323 The judge then pointed out to the jury that, in addition, the applicant was critical of the evidence given by the surveillance witnesses of the photographs that had been shown to them and of what they remembered of the photographs.

324 In Alexander v The Queen,[62] the High Court discussed the potential for the involvement of a displacement effect where a witness has been shown a photograph of an accused person for the purposes of identifying a person observed by the witnesses. Stephen J (dissenting) described the displacement effect that might be involved in that process in the following manner:

Lastly, there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.[63]

325 In Alexander, the Court was concerned with the process of identification of a person earlier observed by the witness, from photographs subsequently shown to the witness by the police. In the present case, the process was the reverse. The surveillance witnesses purported to recognise the person, whom they observed, as the accused from their recollections of photographs earlier shown to them at the commencement of the shift in question. It may be doubted whether that process involves the risk of a displacement effect, rather than errors of recognition. Nevertheless, the judge correctly identified the different nature of the potential effect that was involved in that process; that is, the risk of the witness displacing the image of the person, who the witness saw, with the retained image of the applicant in the photographs shown to them at the commencement of the relevant shift.

326 In that way, the judge adequately directed the jury as to the risks involved in the second step in the recognition evidence of the surveillance operatives, namely, the risks involved in the witness equating the image of the applicant that they had committed to their memory, or of which they had a copy, with the person observed on the night in question. The direction by the judge was clear and sufficient. It adequately explained to the jury the particular risk of error involved in the evidence of each witness. Contrary to the submissions of the applicant, it was not necessary for the judge to specify particular examples, or to elaborate any further on it. The judge gave appropriate emphasis to the direction by expressing it as a warning, and by emphasising that the jury must keep in mind the 'displacement' effect.

327 The applicant further contended that the judge erred in failing to direct the jury that it should be 'especially cautious' of convicting an accused person in an identification case even if there were other evidence against the accused. In support of that proposition, the applicant referred to the decision of the Court of Appeal in R v Turnbull.[64] However, the judgment of the Court in that case did not specify any such requirement. Further, and in any event, as already mentioned, the directions that the judge was required to give to the jury are contained in Division 4 of the Jury Directions Act. Section 37 specifically provides that a trial judge is not required to direct the jury concerning the unreliability of identification evidence other than in accordance with that division.

328 The applicant further contended that the judge incorrectly instructed the jury by suggesting that one identification by a witness could bolster another. We reject that submission. The judge gave no such direction or instruction to the jury. Rather, and as required by s 36(3)(d), the judge correctly told the jury that it should take into account that 'a number of different witnesses may all be mistaken in their identification'.[65] The judge did not, in any way, suggest to the jury that it might bolster one identification by a surveillance operative with the identification evidence of another surveillance operative. It is true that the judge did summarise the identification evidence of each of the surveillance operatives when summarising the evidence relevant to each charge. As already explained, that process was important in order to identify to the jury all of the evidence that was relevant to each of the charges. However, in doing so, the judge did not, in any way, suggest that the identification evidence given by a particular surveillance operative might in any way be bolstered by the identification evidence given by another surveillance operative.

329 In that way, the directions given by the judge may be clearly distinguished from the impugned directions given by the judge in Akgul, on which the applicant placed significant reliance.

330 In that case, the applicant was convicted of a number of charges which included false imprisonment. He was alleged to have committed those offences by kidnapping the complainant and forcing her into the boot of a vehicle. The prosecution adduced evidence from a witness, Mr West, that he saw a woman climb out of the boot of a particular vehicle when it stopped at traffic lights. Mr West did not identify the applicant, as the driver of the vehicle, in a video line up conducted by the police, or subsequently at the committal proceeding. However, at the trial, he identified the applicant subsequently sitting outside the court on the first day of the trial. In directing the jury as to the caution which it must take in relation to the identification evidence given by Mr West, the judge suggested to the jury that it could take into account the evidence of the complainant who also identified the applicant as the offender. However, the ability of the complainant to identify the applicant was not in issue in the trial; rather, what was challenged was whether she was telling the truth about what had happened to her and as to who had perpetrated the offences against her. Accordingly, on appeal, the court held that the judge had erred in incorrectly suggesting to the jury that the identification evidence of Mr West could derive strength from the identification of the offender by the victim.[66]

331 In the present case, the position was quite different. As we have stated, the judge did not suggest that the identification evidence of a particular surveillance operative might in any way corroborate or support the identification evidence given by another surveillance operative. Rather, as we have explained, the process undertaken by the judge was to set out, in some detail, all of the evidence related to each of the charges. In doing so, the judge summarised the evidence given by particular surveillance operatives in relation to each particular charge. However, at the risk of repetition, in doing so the judge did not in any way suggest that those witnesses could in any way strengthen each other's evidence.

332 The other basis upon which the applicant relies on ground 6, is that the judge failed to give identification directions in respect of a number of objects which were the subject of the evidence. In particular, he submitted that the judge should have given identification directions in relation to the balaclava and the pair of sunglasses located by Detective Sergeant Barnes in the chest of drawers in the bedroom in the Yvette Drive premises, the blue cigarette lighter located by Detective Sergeant Barnes in the centre console of the white Magna, the bottle that was located at the site of the fire that was the subject of charge 3, and the white Magna itself.

333 There is no substance in that submission. The prosecution case in respect of the balaclava, sunglasses and cigarette lighter was that those items were similar or identical to the balaclava and sunglasses worn by the person depicted in the relevant videos, and the cigarette lighter was similar or identical to the lighter depicted in one of the videos. That evidence was not evidence of identification by any particular witness, but, rather, was part of the circumstantial evidence connecting the applicant with the YouTube videos.

334 In the directions that the judge gave to the jury relating to identification evidence, and to which we have just referred, the judge did include directions relating to the identification, not only of the applicant, but also the white Magna. The directions that were given related to the capacity of the particular witness to properly identify the vehicle as a white Magna, and, in some cases, as to the capacity of the witness to be able to see and accurately record the number plate on the vehicle.

335 Thus, the judge commenced his directions, relating to identification evidence, by identifying and stating to the jury that the directions related to observations made by the surveillance operatives of the applicant 'and/or his vehicle' in the vicinity of the fires that were the subject of charges 3, 4 and 5. In describing to the jury the two stages involved in the recognition evidence, the judge noted that the first stage involved the observation by the witness of someone 'or in this case from time to time an observation of a car', and, secondly, that the witness must have accurately recognised the person as someone the witness knew 'or recognised as the target or the target car'. In respect of the first aspect, the judge noted that the jury must take into account the circumstances in which it was said that 'Mr Davies was observed or his car'. He told the jury that it should examine 'the circumstances in which Mr Davies or his car was observed'. In the course of summarising the evidence given by surveillance operatives, the judge, where appropriate, referred to issues relating to the identification by the operative of the vehicle. For example, in summarising the cross-examination of Senior Constable Jackson (in respect of charge 3) he noted that the applicant pointed out that the witness could not specify the colour of the number plate of the vehicle or the writing on it.

336 For those reasons, the applicant has not made out any of the propositions advanced in support of ground 6. Accordingly, that ground must fail.

Ground 7 - The judge's charge was unbalanced

337 In support of ground 7, the applicant referred to a number of different aspects of the judge's charge, in which, he submitted, the judge failed to direct the jury on particular issues in a manner which was balanced and fair. We shall consider each of those aspects seriatim. Before doing so, it is convenient to discuss, briefly, the obligations of the judge in summing up to the jury. Those obligations are now contained in Part 8 of the Jury Directions Act.

338 Section 65(b) of the Jury Directions Act provides that the judge must refer the jury to the manner in which each party has put its case in relation to the issues in the trial, but the judge need not summarise the closing addresses of either party. Section 65(c) states that the judge need not give a summary of the evidence, but the judge must, in accordance with s 66, identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial. Section 66(1) provides that the judge is required to identify only so much of the evidence as is necessary to assist the jury to determine the issues. Subsection (b) specifies the matters that the judge must have regard to in determining how much of the evidence is to be identified.

339 The submissions made by the applicant in support of ground 7 do not, in terms, contend that the judge failed to comply with the obligations specified in those provisions of the Jury Directions Act. Rather, the complaint that is made under ground 7 is that the summing up by the judge was unbalanced in a manner that was unfair to the applicant.

340 The first complaint by the applicant is that the judge failed to refer the jury to the differences in the modus operandi of the person who committed each of the five fires.

341 In his charge, the judge did not refer to that point. However, he did refer to the submission made by the applicant, based on statistics, as to the number of arsons in Victoria, and that many of them involve the use of accelerants. His Honour also referred to the point made by the applicant that there had been other fires at the St Mary's, subsequent to the arrest of the applicant, for which the applicant could not have been responsible. Each of those points, referred to by the judge, was relied on by the applicant as militating against the proposition that the same person must have been responsible for each of the five fires that were the subject of the charges. In that way, although the judge did not specifically refer to the differences in the modus operandi in relation to each of the fires, the points that he referred to in his final directions did provide adequate balance.

342 The second point relied on by the applicant, in respect of ground 7, is that the judge did not give a balanced direction to the jury concerning fires that occurred at St Mary's in 2014 and 2015, subsequent to the arrest of the applicant.

343 In cross-examination, Sergeant Wallace gave evidence that there had been two or three fires at St Mary's in St Kilda in 2014 and 2015 and that the applicant had been positively eliminated from being the person who lit the fires. In summarising the evidence in respect of charge 2, the judge told the jury that an 'important aspect' of the charge was the evidence that the church and the presbytery had been the subject of other arson attacks in recent times in 2014 and 2015, which the applicant could not have committed. The judge referred to the arguments made by the prosecution that the applicant was motivated to punish society, and that arson was a legitimate tool of revenge. The judge then said the following to the jury:

Essentially, when considering these arguments in respect of charge 2, keep in mind that this church has been targeted by others, and possibly for reasons to do with sexually criminal conduct of particular Catholic clergy who worked there in the 1960s.

344 Subsequently, in the charge, when referring to the argument made by the applicant as to the statistical number of arsons in Victoria, the judge again referred to the point made by the applicant that St Mary's had been subjected to fires in 2014 and 2015 for which other persons had been found to be responsible.

345 In that way, it is clear that the judge adequately drew to the attention of the jury the point made by the applicant in relation to the subsequent fires at St Mary's, and the relevance of that point. Contrary to the submissions of the applicant, we do not consider that the judge's charge in any way diluted the point sought to be made on behalf of the applicant.

346 The third point relied on in support of ground 7 was that the directions, given by the judge, concerning the 'alibi' issue in respect of the YouTube videos, were inadequate, unbalanced and inverted the onus of proof. We do not consider that there is any substance in that point.

347 As we mentioned in connection with ground 4, in the course of the trial, the applicant tendered, and in final address relied on, material that indicated that he could not have been using the computer at particular times noted in it because, on the prosecution case, he was engaged in other activities. The judge referred to that evidence, and that point, in the following terms:

Mr Davies ... tendered and relied on aspects of the computer material to establish that the times on the various files or websites mean that he could not be the one using the computer as he was, for example, filling his car with petrol at a particular time shown on a BP Service Station CCTV footage. It is a matter for you as to what you make of the reliability of the times on the computer. Mr Davies contends that the overlaps mean someone else has used or is using the computer, as best I can understand it.

348 That summation, by the judge, of the point relied on by the applicant, was in our view sufficient to bring to the attention of the jury one of the issues that was raised by the applicant in relation to the prosecution contention that he was the author of, or connected with, the YouTube videos. The judge did not invert or undermine the onus of proof in outlining to the jury the point that was sought to be relied on by the applicant. On the contrary, at a slightly earlier point in his charge, the judge had reminded the jury that the YouTube evidence was one aspect of the circumstantial evidence, that the jury should only draw rational conclusions in relation to it, and that the onus of proof was on the prosecution to exclude any other rational alternative hypothesis. The judge told the jury:

If you do not consider the evidence establishes that Mr Davies is the person on the YouTube videos, or the author of the YouTube videos, then you might put that evidence to one side.

349 The fourth substantive point, relied on by the applicant in support of ground 7, was that the judge's directions on identification issues were unbalanced, in that his Honour identified support for the surveillance operatives' evidence, but failed to highlight 'weaknesses' in that evidence.

350 The applicant relied on a series of matters in relation to that point, that include the following:

(i) In general, the judge failed to remind the jury of the following matters: the surveillance operatives did not take photographs of the person or vehicle that they purported to identify; the surveillance operatives had to control their own vehicles while making observations, which were often fleeting, and through dark tinted windows; the surveillance operatives did not notice that one of the headlights on the white Magna was not working, and that there was a large dent in the rear of it; and the surveillance operatives, while claiming to first give their evidence from memory, had reviewed the surveillance log while outside the court room before they commenced their evidence.

(ii) In respect of charge 2, the judge failed to direct the jury concerning the issue of 'loop driving'.

(iii) In respect of charge 3: the judge failed to remind the jury that Senior Constable Prpic had relied on the surveillance log, and the judge did not point out that both Senior Constable Prpic and Senior Constable Jackson had presumed that the person referred to in the log was the applicant.

(iv) In respect of charge 4: the judge failed to draw the attention of the jury to the fact that the observation that Sergeant McGibbony first made of the applicant in Rosstown Road was at a distance of 200 metres; the judge failed to inform the jury that while Sergeant McGibbony had said that the natural light was good, the content of exhibit 15 (the download for the moon phases at the time) indicated that it was not; the judge failed to draw to the attention of the jury the fact that Sergeant McGibbony's evidence of seeing a 'stoop' was inconsistent with the CCTV; the judge omitted reference to criticism made by the applicant of the evidence given by Sergeant McGibbony that he observed the white Magna at the garage at Yvette Court at 1.33 am; and the judge failed to direct the jury that the prosecution speculated that the bottle carried by the man depicted in the CCTV footage contained fuel.

351 In considering the various issues raised under ground 7, and in particular the aspect presently under consideration, it is important to bear in mind that the trial was particularly lengthy. A significant portion of the evidence of each witness was occupied by the lengthy and detailed cross-examination by the applicant of those witnesses. The final addresses of each side were also detailed, thorough and lengthy. The prosecution address occupied some 100 pages of transcript and was delivered over a period of two days. The applicant addressed the jury for three days, and the transcript of his address was contained in almost 300 pages of transcript. The applicant's final address was particularly detailed and comprehensive.

352 In that context, the judge could not summarise or refer to each and every point made by each side in favour of its case. If the judge had done so, his charge to the jury would have become overburdened with detail, and would have deflected the jury from the critical and central issues that it must determine.

353 At the commencement of his charge, the judge cautioned the jury that if he referred to a piece of evidence, that did not make that evidence important; similarly, if he did not mention a piece of evidence, that did not make it unimportant. The judge stated that it was for the jury to decide what was important in the evidence. The judge also gave the standard direction to the jury that if he made a comment on the evidence, it could put such a comment to one side if it did not assist the jury, but could take it into account if it did assist it. The judge further stated that he would refer the jury to the manner in which the prosecution and the applicant have put their respective cases, but that he would not repeat or attempt to summarise the addresses, because of the length of them. He told the jury that his summary would be a 'broad brush', but that the jury should consider all the arguments and use those arguments it thought were helpful and put aside any argument that did not assist it.

354 As noted when discussing grounds 5 and 6, the judge gave detailed directions to the jury on the important issue of the identification evidence given by the surveillance operatives. In particular, he gave specific instructions to the jury as to matters that it should take into account in determining the accuracy of the observations made by a surveillance officer. As already mentioned, the judge told the jury it must take into account the circumstances in which the observation was made. He told the jury it should consider what opportunity there was for an accurate observation, and, in particular, the jury was to take into account factors including the length of the observation, whether at the time both the applicant and the witness were driving or passing each other in the vehicle, whether the witness could see the person's face or his profile or his back, the quality of the lighting, and whether the view of the witness might have been obstructed by other people or traffic.

355 As already noted, the judge proceeded to outline the evidence in respect of charges 3, 4 and 5. In doing so, his Honour summarised the evidence of the principal witnesses in respect of those charges. In summarising the evidence of Senior Constable Thompson under charge 3, the judge referred to the evidence of the witness in cross-examination in which he was shown video footage depicting the person who Mr Thompson said was the applicant's brother. The judge told the jury that it was a matter for them as to whether they could see and appreciate the differences in appearance between the applicant and his brother.

356 Having summarised the evidence of Senior Constable Jackson, the judge noted that, in cross-examination, the applicant had elicited from Senior Constable Jackson that the observation that he made of the applicant at 1.00 am in High Street was while the vehicles were moving slowly, and that the observation was over a period of one second or one and a half seconds, and part of the observation was side on. The judge then set out, at some length, the cross-examination of Senior Constable Jackson by the applicant in respect of Jackson's observation of him at 1.20 am near St Oswald's. That summary of the cross-examination occupied two pages of the transcript. The judge then gave the jury the caution, concerning Senior Constable Jackson's evidence, that we have earlier referred to.[67]

357 The judge then summarised the evidence of Senior Constable Cook. In doing so, he set out again a number of matters raised by the applicant in cross-examination, including that the witness could not recall the colour of the vehicle's number plate or the writing on the number plate. His Honour then summarised the evidence of Senior Constable Prpic, setting out, in some detail, the cross-examination of him by the applicant. In particular, he noted that the applicant had elicited that the witness could only see the silhouette of the driver of the vehicle that he observed, and that his observation of the vehicle doing a turn out of Seaton Avenue into High Street was for a couple of seconds.

358 The judge then set out the cross-examination of Senior Constable Prpic by the applicant that was directed to impugning the content of the log that recorded that Senior Constable Prpic had observed the applicant in the vehicle. Having done so, the judge reminded the jury that the applicant put that that evidence was an example of the surveillance team assuming that the observations that they made were of him, when they were only an observation of a driver of a vehicle.

359 In that way, the judge adequately and fairly put to the jury issues that were raised by the applicant in relation to the identification evidence relevant to charge 3, including the salient points made by the applicant in relation to the evidence of Senior Constable Prpic and Senior Constable Cook. He also adequately put to the jury the issue relating to the identification of the applicant's brother that was relied on by the applicant.

360 In respect of charge 4, the judge reminded the jury of the evidence given by Sergeant McGibbony as to the observations that he made at the park in Highbury Road. His Honour then told the jury that the critical observation by Sergeant McGibbony was at Pimm Court at 1.19 am. The judge set out a number of matters raised by the applicant in cross-examination concerning that evidence, noting that the point made by the applicant was that Sergeant McGibbony was mistaken, and that he assumed that the driver of the vehicle that he observed was the applicant. The judge set out the evidence of Sergeant McGibbony, in cross-examination, as to the distance that Sergeant McGibbony was from the vehicle when he made the observation of the occupant of it. The judge's summary of the cross-examination of Sergeant McGibbony, and the points raised in respect of it in final address by the applicant, occupied some three pages of the transcript.

361 Having done so, his Honour reminded the jury that it must take into account the warnings that he had given about identification evidence, including the opportunity to make the observation, and the circumstances of the observation. He told the jury to consider whether the two vehicles were moving at the time, the angle of the observation, the lighting, and the experience of Sergeant McGibbony. In doing so, the judge did not set out each of the points raised by the applicant in respect of this aspect of ground 7. Nevertheless, the summation by the judge of the points made by the applicant in final address and cross-examination, was fair and balanced. As we have stated, and repeat, it is not necessary, nor is it possible or desirable, for a trial judge to recite each and every point made by a party in cross-examination or final address. The judge reminded the jury that in his charge he would not be referring to each point, and that it should not disregard any point to which he did not refer but which the jury considered to be relevant.

362 The next matter raised by the applicant under ground 7 was the contention that the judge's summary of the evidence given by Leading Senior Constable Kane, in respect of charge 5, was unbalanced. The applicant submitted that the charge did not set out a number of inconsistencies and transcript quotations concerning Kane's evidence to which he referred in his final address.

363 In his written case, the applicant set out those matters in substantial detail. They included issues relating to whether Kane's evidence was consistent with the CCTV footage; Kane's evidence concerning identifying the applicant from photographs, and in particular whether he had a photograph of the applicant in the vehicle; the fact that the evening in question was the first night on which Kane had participated in Operation Navarre; inconsistencies in Kane's evidence concerning the facial hair of the person who Kane identified as the applicant; inconsistencies in relation to whether the man, who was observed by Kane, was running, kept running, or slowed down; and differences in the evidence of Senior Constable Kane after being shown the CCTV footage in his evidence.

364 The judge's summary of the evidence of Senior Constable Kane, including the cross-examination of it, was contained in almost six pages of transcript. In the course of summarising that evidence, the judge cautioned the jury as to the matters that it was to take into account when considering Kane's identification evidence, in the passage that we have quoted above.[68] In summarising the cross-examination of the witness by the applicant, the judge referred to the point made by the applicant, in cross-examination and final address, as to the differences in the facial hair of the person depicted in the photograph to which Kane had referenced. The judge reminded the jury that in Senior Constable Kane's radio message at 2.16 am when he initially saw the applicant, he said 'I think I might have him'. The judge referred to the point made by the applicant that when Kane reached the child care centre, he could not establish how long the fire had been alight, and that he did not see the applicant carrying a jerry can or anything which might have contained accelerant. The judge reminded the jury that no such container was found near the fire scene. The judge reminded the jury of the proposition, put by the applicant to Senior Constable Kane in cross-examination, that his evidence was embellished and had changed in order to incriminate the applicant. He referred to the proposition advanced by the applicant that Kane had failed to photograph the applicant, and that he had failed to use the radio at the time. The judge referred to the point made by the applicant about the quality of the lighting, and that the Syndal station CCTV did not depict Senior Constable Kane looking over the fence or running. Having summarised those points, the judge gave to the jury the caution that we have set out earlier in these reasons.

365 It is correct that the judge did not, in summarising Senior Constable Kane's evidence, set out all of the points raised by the applicant in cross-examination and in final address, and, in particular, each of the points on which he now relies in support of ground 7. However, again, it was not incumbent on the judge to set out the detail of each point raised in cross-examination and in final address. Rather, in his summary, the judge helpfully reminded the jury of some of the main points raised by the applicant in cross-examination and in final address concerning the reliability of Kane's evidence. The applicant's detailed submissions to the jury concerning the evidence of Senior Constable Kane occupied approximately 15 pages of the transcript. It was not necessary, nor indeed would it have been desirable, for the judge to have repeated each of those points. Rather, in the manner which we have summarised, the judge helpfully identified some of the principal issues relating to the evidence of Kane which the jury was required to consider. We do not consider that the judge's charge to the jury, in that respect, was unbalanced or unfair.

366 The next point, relied on by the applicant in support of ground 7, concerned the summary by the judge of the evidence of Mr Xydias relating to charge 5. In particular, he submitted that the directions given by the judge were unbalanced and did not raise a number of points relied on by the applicant, including the following: that unidentified gloves and a container were found at the scene of the fire; that (the applicant contended) photographs depicted parts of the flyscreen to have been carefully cut; that Mr Xydias relied on an assumption that the fire brigade would have informed him if there was evidence that a break-in had occurred at the premises; and that Mr Xydias had no specific memory of the broken glass. In addition, the applicant submitted that the judge expressed his own view, which was detrimental to that of the applicant, that Mr Xydias's evidence was 'plain' that there had not been a break-in.

367 In his final address to the jury, the applicant made detailed submissions concerning the evidence of Mr Xydias, in support of the proposition that there had been, or might have been, a forced entry into the child care centre before it was set alight. In accordance with the principles that we have discussed, it was not requisite for the judge to recite those submissions, and, in particular, the fine details relied on by the applicant, in the course of his charge to the jury. The judge referred to the evidence given by Mr Xydias as to where the fire had started, and that the fire had one single seat. The judge then referred to the submissions made by the applicant, including that the applicant relied substantially on the broken window and flyscreen on the building, and the gloves that were found in the laundry of the building. The judge reminded the jury that the applicant submitted that there was evidence that there had been a break-in at the premises. He then told the jury that Mr Xydias dismissed that possibility, by pointing to the glass that was found on the washing machine inside the premises and to the effects of the fire underneath the broken glass. The judge then said the following:

The argument was put at length by Mr Davies in relation to this. He examined Mr Xydias's evidence; the evidence is what you act on, of course. Mr Xydias was plain that there is an external single seat and the broken window was an artefact; nothing to do with how the fire started, more likely how it ― what operated during the course of putting it out. It is all a matter for you.

368 In our view, that brief summation of the points made by each side in relation to the issue, whether there was a break-in to the child care centre, was balanced, fair and sufficient. The judge reminded the jury of the principal points made by the applicant, and of the points made by Mr Xydias in response, without descending to detail. His summation of the points was sufficient to alert the jury to the issue raised by the applicant, and to the principal matters that were relied on by each side in relation to it. The fact that the judge said that Mr Xydias was 'plain' that there was one external single seat, and that the broken window was an artefact, was not an expression by the judge of his own view. Rather, it was a description of the manner in which Mr Xydias had addressed each of those two matters.

369 The next point made by the applicant under ground 7 was that the directions by the judge in relation to the evidence given by Detective Woodcock, as to his observations of the fire at St Mary's (charge 2), was unbalanced.

370 In his final address, the applicant reminded the jury that Detective Woodcock was not qualified as a chemist. He drew the jury's attention to the photographs, and contended that they did not support the opinion expressed by Detective Woodcock. He contended that concrete can be marked in the absence of an accelerant. He also submitted that Detective Woodcock did not adequately address the issue of whether there was more than one fire seat.

371 In his charge, the judge summarised the evidence of Detective Woodcock quite briefly. In doing so, his Honour referred to the cross-examination by the applicant as to the limited amount of training that Detective Woodcock had received in relation to arson. The judge then reminded the jury that it must apply the directions that he had previously given to it about opinion evidence, taking into account the training and experience of Detective Woodcock. The judge said:

It is a matter for you whether you accept the opinion that what he saw led him to conclude that an accelerant had been used. Consider what he said about his training as a detective, his experience, and what he saw, as you can see, in the photographs. It is a matter for you whether you accept the opinion he spoke about, and what weight you give to it.

372 We are not persuaded that that summation, of Detective Woodcock's evidence, was unbalanced or unfair. The judge's summation was brief, but the evidence given by Detective Woodcock in relation to that aspect was quite straightforward. The applicant had advanced a number of submissions to the jury relating to it in his address. It was not necessary for the judge to remind the jury of each of those points. The judge correctly ― and fairly ― reminded the jury that it should consider the training and experience of Detective Woodcock, and that it should assess his evidence in relation to what the jury itself could observe in the photographs.

373 The applicant also submitted that the judge failed to direct the jury that the expert evidence given by Mr Xydias and Detective Woodcock was only as 'valuable' as the facts supporting it. However, as we have just noted, the judge instructed the jury that in assessing Detective Woodcock's evidence, it should consider what the jury itself could see in the photographs. It was those observations that were the basis of Detective Woodcock's opinion. In that way, the judge did direct the jury that it should consider for itself the factual basis of the opinion advanced by Detective Woodcock.

374 Finally, under the general rubric of ground 7, the applicant submitted that the judge ought to have, but did not, provide to the jury a transcript of the final addresses made by himself and by the prosecutor. He contended that the prosecution case was relatively simple, but, by contrast, the response made by him to that case was quite complex and detailed. He submitted that, given the length and complexity of his address, it was unlikely that the jury would have been able to assimilate the point without the assistance of the transcript.

375 Section 223(1) of the Criminal Procedure Act provides that the trial judge may order that copies of a number of documents, including the opening and closing addresses of the prosecution and the accused, and the transcript of the evidence in the trial, be provided to the jury in any form that the judge considers appropriate. In this state, most, but not all, trial judges provide to the jury a copy of the transcript of the evidence. However, in our experience, it is less common for trial judges to provide to the jury transcripts of the final addresses.

376 In the present case, as we have already mentioned, the final addresses made by each side were lengthy. In particular, as noted, the applicant delivered his final address over three sitting days, and it was contained in almost 300 pages of transcript. In those circumstances, it is most unlikely that the jury, during its deliberations, would have had resort to the transcript of that address, if it had been provided with that transcript. Indeed, if the transcripts of the addresses had been provided to the jury, there is a risk that the jury might have had some reference to the prosecution address (which, as the applicant has noted, was relatively simple in form) and not to the address made by the applicant. In our view, it was preferable that the trial judge adopt the course that he did, namely, not providing the transcript of either address to the jury, but, rather, briefly summarising the principal points relied on by each side in their addresses. Contrary to the submissions made by the applicant, we do not consider that that process created an imbalance in the trial that was unfair to the applicant.

377 Under the general rubric of ground 7, the applicant included what appears to be a 'sub-ground', which he nominated, in his written case, as 'ground 7.2'. By that ground the applicant contended that the judge's charge erred by putting 'facts' to the jury that were not in evidence and which were unfavourable to the applicant.

378 The applicant commenced those submissions by contending that, in his charge, the judge omitted to inform the jury that comments made by him were not binding in law and were not evidence. That criticism of the charge is ill-founded. At an early stage in the charge, the judge said the following:

It is for you to decide what is important in the evidence, not me. Further, if I make a comment on the evidence, on the facts, you can put such comments to one side if my comment does not help you. You can take it on board if it does help you. It is a matter for you. I will point out if I make a comment so that it is clear that you can take it on board or put it to one side because that contrasts to my direction of law which you must follow. I do not think I will be making any comment on the facts but if I do, I will point it out.

379 In that respect, the applicant further submitted that, although the judge told the jury he would identify any comments that he would make in the charge, he did not at any stage in the charge identify the comments that he did make during his charge. However, in making that submission, the applicant did not identify any aspect of the charge in which the judge made a particular comment. Rather, the applicant pointed to various aspects of the charge in which the judge referred to or summarised some of the evidence. As discussed, the judge was obliged to identify to the jury the evidence that was relevant to each charge. In doing so, he did not thereby comment on the evidence. Further, at an early stage in the trial, he gave the following cautionary direction to the jury:

So now what I wish to point out is that if I do mention a piece of evidence ... then just because I mentioned it, does not make it important. Likewise if I do not mention a piece of evidence that does not make it unimportant.

380 The next substantive point, made by the applicant in respect of ground 7.2, relied on matters that the applicant alleged were misstatements of the facts by the judge. In fact any such misstatement was minor and inconsequential. The judge told the jury that the witness Daniel Tanner first smelt smoke from the direction of the bakery at 1.45 am; in fact in his evidence he said it was about 1.40 am. The judge told the jury that Mr Wallace said that he followed the fire truck to the scene of the fire and, when he arrived there, the local police were already present. In fact, Sergeant Wallace said that the fire trucks narrowly beat him to the point of the fire, and then the uniformed police turned up. The applicant also alleges that the judge misdescribed the route taken by Sergeant McGibbony after he sighted the applicant's vehicle exit Pimm Court and travel west in Matthew Street. Thus described, none of the matters, raised by the applicant in support of this point, were of any consequence.

381 In respect of charge 5, the applicant maintained that the judge misstated the evidence given by Senior Constable Kane. The applicant made three points on this topic, none of which are of consequence.

382 First, the applicant referred to the part of the judge's charge in which his Honour was giving instructions to the jury concerning the drawing of inferences. By way of example, he referred to a question put by the applicant to Senior Detective Wallace that 'save for perhaps Mr Kane and the child care centre' there was no direct (eye-witness) evidence that anyone saw the applicant put a foot on any of the premises. In cross-examination, the applicant had put to Senior Detective Wallace that there was no direct evidence that the applicant had set foot on any of the premises in question. He put to Wallace that he was relying on the evidence of Mr Kane '... regarding the alleged position of the accused and whether or not he stepped foot onto the premises there at the Croxley Hall in terms of your surveillance?'. Wallace responded 'Yeah it's Kane's evidence not mine ...'. In our view, the very brief reference to that passage, by the judge in his charge, was sufficiently accurate for the purposes contended.

383 Secondly, the applicant referred to the mention made by the judge in his charge that Senior Constable Kane gave evidence that 'shortly after' he passed the applicant in the walkway, he saw the fire catching hold of the child care centre. That description of the evidence of Senior Constable Kane was sufficiently accurate. In his evidence, he said that after he passed the applicant, he could see and smell a small amount of smoke. He looked over the fence and could see smoke coming from under the weatherboard building of what appeared to be a house. He said that he could hear the crackling of debris catching alight. He then said 'the small fire soon caught onto ― to a large fire'.

384 Thirdly, the applicant took issue with the judge stating in his charge that Senior Constable Kane said '... it seemed Mr Davies had spotted him and that is why he stopped to a shuffle'. There was no error in that summation of Senior Constable Kane's evidence. Senior Constable Kane told the jury that when he first saw the applicant, the latter was running directly towards him in a westerly direction. Senior Constable Kane then said:

... when he looked up and spotted me coming the other way, he slowed, baulked ... slowed to a shuffle and continued westbound.

385 Fourthly, the applicant submitted that the judge unfairly undermined a point made by the defence in respect of charge 3, namely, that the fact that the surveillance operatives did not see the offender or sensor lights on, at the time at which the prosecution allege the applicant lit the fire, was inconsistent with the prosecution case. In that respect, the applicant submitted that the judge inappropriately provided an explanation to the jury for the reason why the sensor lights might not have come on by referring to the evidence of Sergeant Wallace that when he searched the premises it was dark at night and he needed to use his torch.

386 In our view, there is nothing in this point. The judge noted that the applicant had raised the issue of the sensor lights, and, in particular, that Senior Constable Cook did not see them. He reminded the jury of the evidence of Sergeant Wallace that when he first retraced the steps it was dark and he needed to use his torch. That reference to Sergeant Wallace's evidence was accurate, balanced and relevant.

387 Finally, under ground 7, the applicant contended that the judge suggested to the jury that certain items of evidence, that were relied on by the prosecution, were 'corroborative' of the prosecution case. The applicant submitted that the judge failed to direct the jury on 'corroboration' at all, and that he referred to items of evidence relied on by the prosecution in a manner in which he conveyed to the jury his support for the proposition advanced by the prosecution. In particular, the applicant referred to references by the judge to evidence relied on by the prosecution to link the applicant with the YouTube videos, references by the judge to the relevance of the CCTV footage, the tracking device and manual surveillance evidence, references by the judge to the DNA evidence, and the outline by the judge of the seven principal points upon which the prosecution relied.

388 The applicant's submissions, on this point, and indeed on other aspects of the points that he made in support of ground 7, focused on questions as to whether the judge had properly directed the jury as to the concept of 'corroboration'. Those submissions were based on a misconception of the present state of the law. It will be recalled that, at common law, there were a number of categories of evidence in respect of which the judge was required to direct the jury that it would be dangerous to convict an accused person on the basis of such evidence in the absence of corroboration. Section 164(3) of the Evidence Act provides that it is not necessary for the judge to give such a direction to the jury. That position has been subsequently reflected in s 34 of the Jury Directions Act.

389 Further, and contrary to the submissions made by the applicant, the judge did not suggest to the jury that particular evidence could be considered to be 'corroborative' of the prosecution case. Nor did his Honour convey to the jury his agreement with, or support for, a prosecution argument that was based on the proposition that its case was supported by particular pieces of evidence. Rather, as he was required to do, the judge outlined to the jury the evidence on which the prosecution relied in support of its case against the applicant on each of the charges.

390 Thus, the judge correctly outlined the seven categories of evidence relied on by the prosecution. In that way, he assisted the jury by identifying the issues that it must consider in respect of each of the charges against the applicant. In outlining to the jury the evidence on which the prosecution relied to connect the applicant to the YouTube videos, the judge did not 'put (that) evidence as if it was corroborative' as suggested by the applicant. Rather, the judge did no more than summarise, in brief terms, the evidence relied on by the prosecution for that purpose.

391 Similarly, and contrary to the submissions made by the applicant, the judge did not suggest that the DNA found on the bottle, that was left at the site of the fire that was the subject of charge 3, could be combined with the surveillance evidence in respect of that charge. Rather, again, the judge, in the passage relied on by the applicant, did no more than summarise the prosecution case. The passage, impugned by the applicant, immediately preceded the reference by the judge to the arguments made by the applicant in respect of the DNA that was found on the bottle.

392 The applicant further contended that the judge suggested to the jury that the evidence of the DNA found on the bottle, that was relevant to charge 3, could also be used by the jury in determining the guilt of the applicant on the other charges. In our view, the judge made no such suggestion in his charge. In the course of outlining to the jury the evidence that was relevant to charge 3, the judge summarised the evidence relating to the DNA that was detected on the bottle that was left at the scene of the fire, and his Honour gave detailed directions to the jury concerning that aspect of the case. The reference by the judge to that evidence, and the directions that he gave about it, were part of the summary given by the judge to the jury of the evidence relevant to charge 3. His Honour did not state or imply that that evidence could, in some way, be used by the jury in relation to the determination of the guilt of the applicant on any of the other charges.

393 Finally, the applicant submitted that the judge failed to bring to the attention of the jury the fact that the applicant only received a copy of the internal Telstra email, relevant to charge 1, shortly before Mr Gelfe gave evidence in respect of that charge. We do not consider that that complaint is made out. In the course of the charge, the judge noted that that email was only provided to the prosecution and the applicant 'in the days before Mr Gelfe gave evidence', and his Honour noted that it seemed that the applicant therefore received the email when the prosecution had received it from Telstra. The judge also noted that the complaint that was made by the applicant, in that respect, was directed to a submission that there was 'something nefarious ... at play in respect of the Telstra documents'. In that way, the judge adequately outlined to the jury a point which, we consider, was somewhat peripheral to the issues in the case.

394 Finally, the applicant has contended that, in summarising the submissions made by the prosecution as to the links between the applicant and the Fujitsu laptop computer that was found at the Yvette Drive premises, the judge put to the jury an argument which in fact the prosecution did not make.

395 In summarising those submissions, the judge stated:

... there was documents saved, financial records paid from Mr Davies' Visa account for parking ― parking fines ― and the question, essentially, the prosecution ask is why would these sorts of documents be on anyone else's computer?

396 In fact, contrary to the submission made by the applicant, the prosecutor did advance such a proposition to the jury in his final address. In particular the prosecutor told the jury that the pieces of evidence linked the applicant to the YouTube videos and the Fujitsu computer. He reminded the jury of the evidence of Mr Fletcher and Mr Robertson in relation to that topic. Although the prosecutor did not, expressly, ask the question why the documents would be on anyone else's computer, the submission that was made by the prosecutor was directed to the proposition that the only reasonable inference that was available on that evidence was that the applicant owned and operated the Fujitsu computer.

397 For those reasons, we do not accept the submissions made by the applicant that the charge of the jury was unfairly and unbalanced against him. Accordingly the applicant has not made out ground 7.

Ground 8 - The applicant suffered from being unrepresented, unwell and exhausted, and having autism, no equality of arms and facilities, communication delays/limits

398 In his written case, the applicant, in addition to the above ground, added without leave two new sub-grounds and referred also without leave to a 114 page affidavit headed 'Affidavit to Support Appeal - Health and Custody Conditions'. Those new sub-grounds are:

8.2 The trial miscarried due to the trial Judge dismissing Mr Davies' requests for representation, and not handling the application pursuant to s 197 CPA properly or lawfully.

8.3 Trial was flawed by Judge failing to rectify the non-equality of arms.

399 As these sub-grounds were, in effect, particulars of the original ground, we permitted the applicant to address them in submissions. The grounds raise three substantive complaints:

(a) The fact that the applicant was unrepresented led to an inequality of arms such as to result in a substantial miscarriage of justice.

(b) His Honour erred in dismissing Mr Davies' requests for representation and failing to make an order under s 197 of the Criminal Procedure Act, causing a substantial miscarriage of justice.

(c) The applicant's ill health throughout the pre-trial and trial process caused a substantial miscarriage of justice.

400 We shall consider (a) and (b) together, and (c) separately.

Inequality of arms/unrepresented accused/****Criminal Procedure Act s 197

Such was the complexity of this case, the Crown had two barristers and up to five solicitors...often four in court...(else it was an over-resourced witch hunt).

402 The respondent contended that the case was neither particularly complex nor likely to be lengthy, but it was made both complex and lengthy as a result of the applicant challenging the admission of much of the evidence and virtually every factual issue.

403 The respondent emphasised that there is no absolute right to 'equality of arms' and that having two junior barristers to prosecute in this type of case is unremarkable. The respondent submitted that the applicant chose to be unrepresented, was encouraged to be represented and given many opportunities to adopt that course, but he elected to proceed unrepresented.

404 In our view, a careful reading of the transcript demonstrates both that the applicant freely eschewed representation and that he was adequately capable of representing himself. The pre-trial arguments commenced in October 2015 and concluded in August 2016. A jury was empanelled on 15 August 2016. The jury returned verdicts on 25 November 2016.

405 Throughout the pre-trial period of argument, the applicant represented himself. While he appeared, on a number of occasions, not to respect the judge's directions and rulings, in our view, his arguments were, by and large, well-structured, researched and argued. Our impression of the applicant's intelligence and capacity to represent his own interests was reinforced by the quality of his submissions over three days in this Court. During the lengthy pre-trial, the applicant was frequently invited by the trial judge to reconsider his position on representation. We have prepared a table which demonstrates that on numerous occasions, his Honour suggested that the applicant be represented:

Trial judge suggested that representation would be a sound course.

Trial judge suggested that representation would be a sound course.

Trial judge organised for a duty barrister to attend court.

Trial judge suggested that representation would be a sound course.

Trial judge suggested that representation would be a sound course.

Trial judge suggested that representation would be a sound course.

Trial judge suggested that representation would be a sound course.

Trial judge offered to facilitate obtaining legal representation.

Trial judge suggested that representation would be a sound course.

Trial judge clarified whether the applicant had been granted legal aid.

Trial judge clarified whether the applicant had been granted legal aid.

Trial judge clarified whether the applicant had been granted legal aid.

Trial judge clarified whether the applicant had been granted legal aid.

Trial judge suggested that representation would be a sound course.

Trial judge clarified whether the applicant had been granted legal aid.

Trial judge informed the applicant of the need to provide Counsel at the time with written instructions.

Trial judge informed the applicant of the need to provide Counsel at the time with written instructions.

Trial judge informed the applicant of the need to provide Counsel at the time with written instructions.

Trial judge informed the applicant of the need to provide Counsel at the time with written instructions.

Trial judge confirmed that VLA will be contacted to confirm what options the applicant had for representation.

Trial judge suggested that representation would be a sound course.

406 On the day appointed for jury empanelment, the applicant advised his Honour that he had spoken to solicitors with a view to being represented. The judge arranged for a representative from Victoria Legal Aid ('VLA') to attend court to advise on funding. The VLA representative indicated funding was in place and the next step was to allocate that funding to a firm. The applicant objected to his Honour speaking to the VLA representative but his Honour was undeterred. The following exchange occurred:

His Honour: He did make application in the past and it seems from what you say is that they've sort of come to an end by reason of him not taking it up.

VLA Representative: I can confirm that funding for this matter has been in place before and it's my understanding that Mr Davies then chose to perhaps represent himself. We did, he had offered to transfer the matter to other solicitors - - -

Accused: Well that's not true.

His Honour: Don't talk.

Accused: Well I'm gonna say, Your Honour's trying to - - -

His Honour: You're not to talk. If you do, you'll be taken downstairs. Thank you.

VLA Representative: That's my understanding, it may be incorrect. There's no issue with means or anything like that, the trial can be funded, it's now a case of finding someone to take it on which - - -

His Honour: What if no one does? What if you because there's been many, many solicitors involved in this matter, and all of them come to a position where they are not prepare to do it.

VLA Representative: Yes.

His Honour: So what no solicitor can be found, can Victoria Legal Aid in-house do this?

VLA Representative: It's possible that it could be allocated in-house, yes, I'd have to find who, which team may take that on. But yes, it is, it's not impossible. But I mean, going on what you're saying, Sir, I was going to flag with the court that if we were to find someone to take the matter on, Legal Aid wouldn't be in a position to continually transfer it to solicitor to solicitor if Mr Davies doesn't take reasonable advice from whoever is appointed.

407 The VLA representative assured the court that processing a new grant of aid could be done expeditiously, and she was supplied with the prosecution opening, the defence response and a witness list. The VLA representative made it clear that as this was to be a 'major trial',[69] any barrister briefed to appear for the applicant would have to be on their 'preferred barrister list'.

VLA Representative: Of course the other thing is, I was just having a brief conversation with Mr Davies, I want to be sure that he does want Legal Aid to put funding in place.

His Honour: Did you have that confirmed?

VLA Representative: Not entirely, no.

His Honour: No, you would like that though.

VLA Representative: Well yes, I mean the court would I'm sure.

His Honour: Yes, absolutely, I understand that. All right, Mr Davies, are you prepared to tell the representative for Victoria Legal Aid that you would like a grant of legal aid for a solicitor and barrister to appear at your trial.

Accused: Um Your Honour I don't like the way the question is. But I already told them that and I have it here in writing going past several months the request - - -

His Honour: Thank you, Mr Davies. Mr Davies if you're not prepared to answer a simple question - - -

Accused: I am answering it, but just not in the words that Your Honour wants me to.

His Honour: Well if you're going to carry on, I'm not going to delay, I'm not going to have you run this show, Mr Davies.

Accused: You - you keep putting questions in the way that are unfair to me. I'm not trying to run the show, I'm just trying to answer in my own words - - -

His Honour: All right, assume that he does want it - - -

Accused: It's not an assumption, I just said - - -

His Honour: - - - and that he wants Legal Aid, we'll assume that's the case and it's not a ploy to delay the case further - - -

Accused: It's not an assumption, excuse me.

His Honour: - - - but we will - if he won't answer simple questions, you're not going to get any better out of it.

Accused: I did answer the question, you're being rude to me.

His Honour: But if you want to take some time, I'll give you five minutes now to talk to him.

Accused: Excuse me.

VLA Representative: Yes.

His Honour: Without him interrupting me. We'll do that now.

VLA Representative: Yes.

His Honour: Thank you. We'll stand down.

409 After a short adjournment, the VLA representative advised his Honour that the applicant had been successful in acquiring a grant of legal aid, and 'it's now a question of allocating that funding to a firm'.

410 The applicant requested that he be seen by a solicitor immediately and that he had 'a lot of things to say about the VLA funding'. Shortly thereafter, his Honour said, 'All I ask, as I have for months and months, is for you to get in touch with legal aid and to get some solicitors'. The applicant replied that the observation was not fair, as he had done that.

411 The trial was adjourned and the jury empanelment postponed.

412 On 26 July 2016, a senior solicitor, appeared before his Honour. It seems from the transcript that the applicant was present by video link. The solicitor, amongst other things, advised his Honour that if the case did not resolve, he would brief a barrister to appear. His Honour indicated that if a barrister were briefed, then he would entertain submissions about how much time was needed to read the material. His Honour adjourned the further hearing for two days.

413 On 28 July 2016, the solicitor appeared again before his Honour. He advised the court that he had briefed counsel. The case was further adjourned until 2 August 2016. Counsel, on that occasion, advised his Honour that the 'very first thing' he needed was 'clear instructions from [his] client'. He wanted to get to a point 'very quickly' where he had instructions in place and thereafter he would be able to proceed 'quite quickly' to trial. Counsel advised that his client was 'saying he's not feeling well, and that he doesn't want to proceed as quickly as that'. The case was further adjourned until 5 August 2016.

414 On that day, Counsel stated he wished to bring various matters to the court's attention:

(a) Neither he, nor his instructing solicitors, 'will empanel in this matter until [they] had fulsome written, signed instructions from Mr Davies'.

(b) His client wished to bring 'health matters' to the attention of the Court from Mr Watson-Munro (a psychologist) and his client also needed to see a 'medical doctor'.

(c) Counsel needed time to prepare an advice to VLA on the merits of various interlocutory appeals so that they could consider funding of same.

415 His Honour clarified with Counsel that neither Counsel nor the solicitor would participate in the jury trial without full written instructions from the applicant, and that the applicant was aware of that. His Honour remarked that over a year earlier, the Court of Appeal[70] had prophesied that this case could imitate Jarndyce v Jarndyce[71] without careful management. His Honour set down a further date for jury empanelment for Thursday 11 August 2016. Openings were scheduled for that day with the first witnesses to be called on Monday 15 August 2016.

416 On Thursday 11 August 2016, Counsel advised his Honour that the applicant had not supplied written instructions, his instructor had withdrawn and he regarded himself as uninstructed. He sought leave to withdraw under the Criminal Procedure Act. The applicant stated he had not withdrawn instructions and there may be an application for a further solicitor to be engaged. He asserted that Corrections forcibly blocked him from both a visit with Counsel and telephone calls to him, so communication was hard, as was photocopying documents.

417 Counsel was questioned by his Honour about whether he had tried to visit the applicant. Counsel stated that he and his solicitor had attended at Melbourne Assessment Prison 'yesterday' (Wednesday 10 August 2016) and after waiting some time, they were informed by a prison officer that the applicant was 'refusing to come down and see [them]'. He was told that was because the applicant was not allowed to bring all of his documents and other things he wished to bring to the meeting.

418 In our view, his Honour showed extraordinary patience - more than could reasonably be expected in the circumstances we have described. Once more, he stated to the applicant that if written instructions were provided, 'we will start a jury trial with [counsel]...and I'll listen to anything he says about where he is in his preparation'. His Honour wished to explore whether VLA would consider engaging another solicitor who could then brief the same Counsel in the trial. The VLA representative described as 'Madam VLA' came to court expeditiously. She said:

...as Mr Davies has had multiple solicitors appointed under his grant over the years since the commencement of the matter and he's been given a new opportunity to engage with [the solicitor] and his firm, as our assessment is that there are no compelling reasons as to why we should transfer it again, Legal Aid will not be appointing another solicitor in this matter.

419 The applicant stated that he did not think VLA's position was lawful, his barrister attended too late for a meaningful conference in any event and obviously had no intention to 'go through all the instructions for...a major trial'. Madam VLA submitted that s 197 of the Criminal Procedure Act (referred to by the applicant) would not apply because the applicant already had a grant of aid and had been granted aid multiple times. The applicant then suggested that VLA were 'going out of their way to prevent [him] from having a solicitor' and accused his Honour of trying to 'con' him.

420 This narrative is sufficient to demonstrate that the applicant's complaints about being unrepresented have no substance. In our view, it is clear that by his conduct, the applicant denied himself representation. The transcript, particularly during the pre-trial state, is replete with suggestions, hints and recommendations from his Honour that representation would be a sound course. As the trial approached, his Honour became generous in allowing time for representation to become a reality, only to see the applicant, by his intransigence, render futile the efforts of his Honour, VLA and his erstwhile legal team.

421 The applicant's s 197 complaints also are devoid of any merit. Section 197 of the Criminal Procedure Act provides that subject to certain preconditions being met, a court has the power to order VLA to 'provide legal representation'.[72] Aid had been granted to the applicant, as we have set out above. The court does not have the power to specify the identity of persons to represent an accused.[73] Its power is confined to ordering that VLA provide legal representation to the accused pursuant to s 197(3). VLA had already done that. An order made under s 197(3) to provide legal representation would have been to no effect. It would have simply provided the applicant with what he already had.

422 The inequality of arms complaint, in our view, has little merit. As we have attempted to demonstrate, the applicant's conduct caused him to be unrepresented. While it is correct that the applicant was an unrepresented accused opposed to two barristers and several solicitors apparently alternating the instructing duties, an examination of the transcript demonstrates that the applicant was far from overwhelmed. He is obviously an intelligent person who had prepared every aspect of his defence. That his case failed was, in our view, the product of a formidable prosecution case and not the result of any forensic failure on the applicant's behalf. This is illustrated powerfully in the applicant's final address. It was structured, reasonably balanced, articulate, replete with detail, and, insofar as the facts allowed, persuasive.

423 Further, there is no legal right in this state for precise 'equality of arms', or indeed, any equality of arms. If a forensic mismatch results in a substantial miscarriage of justice, then that inequality will result in a successful appeal,[74] but there is no prima facie right to forensic equality. The success or otherwise of an appeal will be determined by the product of that inequality, not the fact of it. In this case, as we have said, we are positively satisfied there was no forensic mismatch and there was no substantial miscarriage of justice, or any miscarriage of justice arising from the fact that the applicant was unrepresented.

424 On occasions, when it appeared to his Honour that the applicant may have been disadvantaged by his lack of representation, his Honour conscientiously endeavoured to assist the applicant.

425 The parties did not raise with us the question whether the Charter of Human Rights and Responsibilities 2006 ('the Charter') had any bearing on the 'equality of arms' argument. We have, however, given the matter brief consideration. Section 24(1) of the Charter provides for a person charged with a criminal offence to have a fair and public hearing. Section 25 contains rights in criminal proceedings, including 'minimum guarantees' including to have adequate time and facilities to prepare a defence and to communicate with a lawyer chosen by the person (s 25(2)(b)), to be defended through legal assistance or, if eligible, legal aid (s 25(2)(d)), to have legal aid provided if the interests of justice require it, without costs if the eligibility criteria in the Legal Aid Act 1978 are met (s 25(2)(f)) and to obtain the attendance and examination of witnesses on the person's behalf under the same conditions as witnesses for the prosecution (s 25(2)(h)).

426 The term 'equality of arms', relied upon by the applicant, is an international human rights principle that explains some aspects of the right to a fair trial.[75] As such, international human rights jurisprudence employing that concept may inform the rights contained in ss 24(1) and 25 of the Charter and referred to above.

427 However, it is not necessary to pursue this avenue in the present case. First, it has been held by this Court that s 24(1) creates a right to legal representation but is only reflective of the position at common law.[76] As such, an accused has a right to a fair trial. But a criminal trial is not unfair if the defendant is unrepresented because he or she persistently neglects or refuses to take advantage of legal representation which is available.[77] Section 24(1) therefore does not alter the position at common law in this case.

428 Secondly, the rights under s 25(2)(d) and (f) are conditional on eligibility under the Legal Aid Act 1978 and do not confer an entitlement to legal assistance independent of that Act.[78] Finally, in our view, the rights in s 25(2)(b) and (h) referred to above also do not confer on an accused in a criminal trial rights having a content extending beyond the common law right to a fair trial. Rather, they are specific aspects, and explications, of that larger right. They do not assist in addressing the particular arguments relied on by the applicant in the present case, which did not depend upon those specific rights.

429 The applicant founds his arguments on his right to a fair trial. Those arguments can be determined without consideration of the Charter, or the notion of 'equality of arms'. Because the applicant's arguments are all subsumed within his complaint that he was denied a fair trial, it is unnecessary to consider the Charter further.

Did the applicant's ill health throughout the pre-trial and trial cause a substantial miscarriage of justice?

430 The applicant submitted that he was unwell at times during the pre-trial and jury trial phases. He stated that he was often exhausted, dizzy, unwell, sleep deprived or some combination of these conditions. We have extracted from the transcript some of the more prominent complaints. They are set out in summary form within the table below:

Trial judge asked whether or not the applicant had received medical attention for concussion

Trial judge adjourned hearing for a short break until the applicant felt better

Trial judge confirmed that the applicant had received medical attention

Trial judge excused witness during examination due to the applicant feeling tired and requiring a break

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge adjourned hearing for 10 minutes due to the applicant feeling tired and dizzy

Tiredness and dizziness, trouble following questions

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge advised the applicant to make application for adjournment by reason of being unwell - applicant refused

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge offered postpone the hearing for applicant to receive medical attention

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge offered for the applicant to have 30 minutes break due to the applicant feeling unwell and to arrange medical treatment - applicant refused

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge adjourned the hearing for applicant to receive medical attention

Trial judge arranged for the applicant to receive medical attention from Corrections

Trial judge adjourned the hearing due to applicant not feeling 'crash hot'

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge requested an officer from Corrections to medically assess the applicant and adjourned the hearing

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge adjourned the hearing so the applicant could compose himself

Trial judge requested the applicant to present medical evidence to support application for adjournment

Trial judge deferred cross-examination by reason of the applicant feeling unwell

431 It will be immediately apparent that no medical evidence was ever called to support the applicant's contentions. On numerous occasions, his Honour suggested that the applicant present such evidence in support of various applications for adjournments, but none was forthcoming and, on occasions, the applicant actually refused medical treatment.

432 In support of this appeal, the applicant swore a 114 page affidavit on 10 February 2017, entitled 'Health and Custody Conditions'. This affidavit was filed with the Court but was not the subject of an application for leave to adduce fresh evidence. Notwithstanding this, we have reviewed the affidavit. Amongst other things, it contains a 95 page diary of events during the pre-trial and trial process from 9 June 2015 to 25 November 2016. In our view, the transcript of proceedings is a more reliable record of the applicant's capacity to represent himself than his post-conviction affidavit. As we have observed, the transcript speaks eloquently of the applicant's capacities and limitations.

433 On his plea, the applicant tendered a psychological report from Mr Watson-Munro dated 23 February 2017. We shall refer to this report in more detail later in these reasons. There is nothing in the report or in Mr Watson-Munro's subsequent evidence that assists the applicant in this aspect of his application.

434 We consider the applicant has failed to establish ground 8. Leave to appeal on this ground will be refused.

Ground 9 - Prejudicial evidence and comments such that it was likely apparent to the jury that the applicant was in or had been in custody

435 Under this ground, the applicant contends that a combination of evidence in the trial would lead the jury to conclude that:

(a) he was currently in custody; and/or

(b) he had been in custody on some previous occasion.

436 The substantive evidence relied upon by the applicant that was said to demonstrate these conclusions was:

(a) During the cross-examination of Leading Senior Constable Jackson of the SSU, the witness described that he saw Mr Davies 'doing squats'. When asked to clarify this observation, he said, 'I was being kind calling it a 'weightlifting movement'. In layman's terms, it's called a prison squat'. The applicant pressed on: 'Why's it called that?' The witness replied, 'I don't know. It's a layman's term.'

(b) In evidence-in-chief, Senior Constable Jackson was asked about photographs provided to a SSU briefing and styled as 'surveillance profiles':

Before I show them to you do you recall, firstly, how many? - - - Ah - - -

Or what they were? - - - There was certainly a photograph of the target who - it was a headshot and there was also a full body shot showing the right hand side, a surveillance photo. There were photographs of family members, photographs of other known associates.

The applicant submitted that the emphasised phrase conveyed to the jury that the applicant kept criminal company.

(c) During the evidence-in-chief of Detective Senior Constable Myers, he was asked about a 'profile photo' of the applicant. The transcript reads:

You remember anything else about - apart from getting into a target vehicle, anything else that you recall about it?

- - - Um, only that he was standing next to the vehicle.

Anything about the profile photo, that first one you mentioned? - - - Um, that was just a head pictured, possibly from a licence or - - -

On this application, Madam Prosecutor advised us that without headphones, nothing could be heard by her beyond what is recorded in the transcript. With headphones, the word 'custody' could be heard.

(d) In the prosecution opening, the prosecutor described the arrest of the applicant. He then said:

The Crown would say it brought to an end a spate of arson attacks that had taken place over the previous two weeks at premises in Mount Waverley, Charge 1; St Kilda East, Charge 2; Ashburton, Charge 3; and Syndal, Charges 4 and 5.

The applicant submitted that this remark implied that he was remanded in custody and that he was guilty.

(e) In addition to these specific complaints, the applicant contends that the extensive surveillance of the applicant, the fact that an historic photograph of him was held by police in 'intelligence holdings' and the trial judge's failure to direct the jury on this 'caused the trial to miscarry'. The applicant also contends that heightened security during the jury deliberations suggested it was a 'security event'.

(f) The applicant asserts that the witness, DLSC Fletcher, used the word 'custody' in evidence-in-chief in the following context:

All right, if I just stop you there. Were you also with Mr Brendan Davies? - - - Yes, the defendant was in - - -

I'll just stop you there. What's the answer to my question? - - - Yes, he was.

The applicant asserts that the witness, in fact, said, 'the defendant was in custody'. Madam Prosecutor advised us that the word 'custody' cannot be heard when the relevant portion of the audio tape is reviewed using headphones.

437 There is little substance to any of these contentions. Taken individually or in combination, they do not demonstrate anything even approaching a substantial miscarriage of justice. In the 'prison squat' complaint, his Honour, obviously concerned when the applicant proposed to examine the meaning of that term, sent the jury to its room. After some discussion, the applicant applied for the jury to be discharged. His Honour correctly ruled that the 'high degree of necessity' test had not been satisfied, but in an exercise of 'extreme caution', directed the jury not to speculate and to put out of their mind what the witness said in relation to 'prison squats'. His Honour also advised the witness, in the absence of the jury, to avoid giving answers that may suggest the applicant was guilty of prior offending, or was or had been imprisoned.

438 In our view, his Honour's directions on this 'prison squats' evidence was impeccable. We agree with the respondent's contention that this direction was an exercise in caution, but the applicant was representing himself and the transcript demonstrates the extent to which his Honour repeatedly endeavoured to assist the applicant present his case. There is nothing in this complaint.

439 The use of the phrase 'other known associates' by Mr Jackson was, viewed in isolation, trivial enough, and in the entire context of a three-month jury trial, of no significance whatsoever. It does not suggest that the applicant had prior convictions or has previously been incarcerated. In our view, at its highest, it might suggest that the applicant has mixed with people known to the police.

440 In his opening, the prosecutor stated that the arrest of the applicant 'brought an end to a spate of arson attacks'. It does not of itself suggest that the applicant was remanded in custody, however it could be construed as suggesting that by inductive reasoning, the fact that the spate of fires concluded with the arrest of the applicant, he was, therefore, responsible for those fires. Whilst this statement may invoke some type of reverse coincidence reasoning - it was no coincidence that the fires stopped when he was arrested - it is really no more than a statement about part of the coincidence argument put by the Crown: five fires occurred over a short period of time when the accused was detected to be driving his vehicle in the vicinity of the location of the fire and at a time when the fire could have been ignited. Additionally, the prosecutor made it clear that the charged acts were the 'spate of arson attacks' to which he referred, rather than any uncharged acts.

441 Accepting that the jury heard the word 'custody' at the conclusion of Senior Constable Myers' evidence, in our view, this would not lead to any real prejudice to the applicant, let alone prejudice sufficient to cause a substantial miscarriage of justice. The witness was doing no more than speculating as to the origin of a 'profile photo'. Little, if any, prejudice could have arisen.

442 Similarly, the applicant asserts that DLSC Fletcher said, 'the defendant was in custody' in answer to a question from the prosecutor. The word 'custody' cannot be heard on the audio recording of this evidence[79] and no complaint was made of the answer at the time. Even if such a word were audible, viewed in its context, the answer would indicate no more than that the applicant was in police custody after his arrest and in their presence at a search of 1 Yvette Drive, Rowville - his home address. This is completely unremarkable and could not possibly lead to any impermissible prejudice against the applicant. This argument is without merit.

443 In the present case, although there were, from time to time, fleeting and usually indirect mentions to some type of 'custody', we consider that not only would the jury conclude that 'custody' may well be a routine feature of the modern criminal justice system, these mentions were sufficiently oblique and intermittent as to have no perceptible impact on the fairness of the trial.

444 In a different context, Hollingworth AJA (with whom Maxwell P and Buchanan JA agreed) stated:

In Victoria, accused persons routinely sit in the dock, surrounded by uniformed corrections officers, in the presence of the jury. And since those two decisions were handed down in 2000, it has become even more commonplace for television and newspaper coverage of criminal trials to show accused persons being brought into court by corrections officers, often from a prison van. In this day and age, and given the vast amount of media coverage of criminal trials, I think it probably that many, if not most, jurors would assume that a person facing a jury trial ordinarily would be in custody during the trial. The fact of being in custody would not be perceived to be a feature of the modern criminal justice system, not a reflection of the accused's bad character.[80]

445 These words, written in 2012, remain apposite in 2019.

Ground 10 - The judge erred in the circumstantial evidence direction

446 The applicant advanced a number of separate arguments in support of ground 10. In his submissions, he grouped them into five separate categories or sub-grounds which, for convenience, we will adopt.

447 The applicant commenced by making a series of disparate points concerning the judge's charge.

448 First, the applicant submitted that the judge failed to direct the jury that the final addresses and his charge were not evidence. That submission is without foundation. The judge expressly directed the jury that addresses or arguments by the prosecution and the defence were not evidence. As already mentioned, the judge also directed the jury that if he made a comment, the jury was free to accept or reject it as it saw fit.

449 The applicant next submitted that the judge failed to give the jury a direction on hearsay evidence in relation to evidence given by Jackson, McGibbony and Stevens.

450 In the passages of the transcript relied on by the applicant, the particular witnesses recited to the jury the contents of the surveillance logs that were kept during the particular shift in respect of which the witness gave evidence. In each case, the logs themselves were admissible, and were tendered in evidence, as business records pursuant to s 69 of the Evidence Act.[81] It was appropriate that the particular witness refer to the logs, in order to enable the jury to follow the sequence of the evidence that was given in the trial.

451 The evidence contained in the logs constituted hearsay evidence. The issue raised by the applicant's submission, on this aspect of the case, is whether the judge was obliged to give a direction to the jury in respect of that evidence.

452 Section 32(1) of the Jury Directions Act provides that:

The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.

453 Subparagraphs (a) to (e) of s 31 of the Jury Directions Act enumerate the categories of 'evidence of a kind that may be unreliable', including (in subparagraph (a)) hearsay evidence. Section 32(3) prescribes the direction which must be given by the judge to the jury, in relation to such evidence, if a party so requests. Section 14 of the Jury Directions Act requires a judge to give a direction, requested by either side, 'unless there are good reasons for not doing so'. Section 13(1) provides that if an accused is not represented by a legal practitioner, the judge must comply with the provisions of Part 4 of the Act (which includes s 32) as if the accused had requested every direction that it was open to the accused to request. Section 13(2) provides:

(2) The trial judge need not give the jury a direction if the trial judge considers that -

(a) there are good reasons for not giving the direction; or

(b) it is otherwise not in the interests of justice to give the direction.

454 Those provisions, in the Jury Directions Act, replaced s 165 of the Evidence Act in criminal proceedings. Section 165 enumerated evidence of a kind that might be unreliable, including (in subparagraph (a)) hearsay evidence. Section 165(2) required the judge, if a party so requested, to warn the jury that the evidence may be unreliable, and of the need for caution in determining whether to accept the evidence and the weight to be given to it. Section 165(3) provided that the judge need not comply with subsection (2) 'if there are good reasons for not doing so'. In that way the provisions in the Jury Directions Act, now under consideration, are relevantly similar to the salient provisions of the Evidence Act concerning the requirement that a judge give a jury directions concerning hearsay evidence adduced in a criminal trial.

455 In a series of decisions, the New South Wales Court of Criminal Appeal has considered the question whether, subject to subsection (3), a judge is obliged to give the specified direction to the jury concerning evidence which falls within one of the seven specified categories in subparagraph (1), regardless of whether that evidence might, in the circumstances of the case, be potentially unreliable. The prevailing view, expressed in those cases, is that the judge is not obliged to give such a direction if, in the circumstances of the case, evidence, falling into any of those categories, could not be characterised as being potentially unreliable.[82]

456 In R v Vincent,[83] the appellant was charged with the robbery of a chemist shop. Immediately after the robbery occurred, the proprietor of the shop spoke to a young woman at the front door who said 'I've got the car number, rego it's RRB 373'. She described the vehicle as a red car. The proprietor wrote the number down. The young woman departed and was never identified. At the trial, the evidence of the proprietor, as to what he was told by the young woman, was admitted in evidence pursuant to s 65 of the Evidence Act. The judge did not give the jury a warning as to the potential unreliability of that evidence. On appeal, the New South Wales Court of Criminal Appeal held that it was open to the judge to conclude that it was not necessary in the circumstances to give such a direction. Hodgson JA (with whom Simpson J and Smart AJ agreed) stated:

In my opinion, it was open to the trial judge to conclude that the representation was made in circumstances that made it unlikely that it was a fabrication and also highly probable that it was reliable; and it was open to the trial judge to conclude that, for those reasons, a s 165 warning was unnecessary. Accordingly, I am not satisfied that the trial judge was in error in failing to give a s 165 warning ... .[84]

457 Further, as mentioned, s 165(3) of the Evidence Act states that the judge need not comply with subsection (2) 'if there are good reasons for not doing so'. In an appropriate case, there may be 'good reasons' for not giving such a direction, if the judge considers that the potential unreliability of the evidence in question has been sufficiently exposed to the attention of the jury in such a way as to render a judicial direction to that effect ineffectual or otiose.[85]

458 In the present case, each of the critical entries in the logs incorporated the observations made by a surveillance operative who gave evidence in the case. In respect of charge 3, the critical observations, recorded in the log, were made by Leading Senior Constable Jackson, Senior Constable Cook and Leading Senior Constable Prpic. Each of those witnesses gave evidence in the trial and was cross-examined. In respect of charge 4, the critical entries in the log reflected observations made by Sergeant McGibbony and Leading Senior Constable Heinan. Both of those personnel gave evidence in the trial and were cross-examined. In respect of charge 5, the critical entries in the log recorded the observations made by Sergeant Stevens, Detective Senior Constable Myers and Leading Senior Constable Kane. Again, each of those three surveillance operatives gave evidence and was cross-examined. As discussed, the judge identified the principal issues raised by the applicant in respect of the credibility and reliability of the observations of each of those witnesses (which observations were noted in the surveillance logs).

459 The particular features that ordinarily render hearsay evidence to be unreliable, and which are the subject of directions, include the risk that the second hand repetition of the out of court statement might be inaccurate, and also the risk that, because the maker of the hearsay statement is not available to give evidence, the accuracy and truthfulness of the statement cannot be tested in court. In the present case, as the maker of each of the statements in question (as recorded in the logs) gave evidence, and was cross-examined, neither of those factors applied. The potential unreliability of the observations made by the witnesses was open to be exposed and questioned in cross-examination in the trial. In the case of charges 3 and 5, the log keeper (Mr Thompson in respect of charge 3, and Senior Constable Myers in respect of charge 5) also gave evidence and was available for cross-examination. In those circumstances, in our view, it was open to the judge to act on the basis that it was not necessary to give an 'unreliable evidence' direction to the jury in respect of the entries contained in each of the logs, and that there was good reason not to do so.

460 The applicant next contended that the judge ought to have given the jury directions as to other unreliable evidence in a number of different respects, including the evidence of Senior Constables Jackson and Prpic, and the evidence (in respect of charge 1) relating to the Telstra memorandum as to when communications with the police station failed. The applicant has not been able to identify any sufficient reason why such a direction ought to have been given.

461 Next, the applicant submitted that the judge should have given the jury directions as to the 'legal elements' of 'possession of items', and in particular in respect of the laptop computer. That point is misconceived. The applicant was not charged with possession of that item. Rather, the prosecution, as part of its case, sought to link the applicant with the laptop, as part of the proof by it of motive. It was not necessary ― and indeed it would have been irrelevant ― for the judge to direct the jury on the legal elements of possession.

462 The applicant further contended that the judge failed to give an appropriate warning to the jury that it should not misuse the evidence relating to the blue cigarette lighter that was located in his vehicle. In that respect, the judge specifically told the jury that the blue lighter was only relevant to provide a link between the applicant and the YouTube videos. He directed the jury that the lighter was not to be used for any other purpose. He told the jury that the prosecution did not allege that the fire at the child care centre was lit or started by use of the lighter and he repeated '... you are not to use the evidence of the lighter in the car for any other purpose than as a connector ... between Mr Davies and the YouTube'. In our view, that direction was ample to allay any potential misuse by the jury of the evidence relating to the blue lighter.

463 The applicant next submitted that the judge should have given the jury a warning against 'working backwards' to infer the time of a fire. In respect of the fire at Tanner's, that was the subject of charge 4, the prosecutor reminded the jury of the time at which McGibbony and Heinan observed the applicant exiting from Pimm Court (1.19 am) and the evidence of Ms Portelli that she first observed some smoke in the sky at 1.40 am. The prosecutor said to the jury that 'by working backwards' the Crown contended that the time at which McGibbony and Heinan saw the vehicle exit Pimm Court was consistent with the fire having started at that time, but having become more substantial by 1.40 am. There was nothing erroneous or misleading about that form of reasoning. It was not necessary for the judge to give any caution or direction to the jury relating to it.

464 The next point, relied on by the applicant under ground 10.1, is that the judge did not adequately or correctly direct the jury concerning the burden and standard of proof. In particular, the applicant contended that by directing the jury that only the elements of a charge need to be proven beyond reasonable doubt, the judge inferred to the jury that any evidence that is not an element did not have to be proven at all. Further, it was contended, the judge referred to rhetorical questions put by the prosecution in final address ― such as 'why were the seemingly unconnected buildings targeted and burnt?' ― as if the onus fell on the applicant to provide an explanation. Likewise, it was submitted, the judge erred in failing to adequately direct the jury concerning the question as to why the applicant was in the vicinity of the five locations at which the fires occurred. Accordingly, it was submitted, the judge failed to warn the jury on comments made by the prosecution in final address that tended to reverse the onus of proof.

465 Section 61 of the Jury Directions Act provides that unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proven beyond reasonable doubt are the elements of the offence charged, or an alternative offence, and the absence of any relevant defence. Section 62 provides that any rule of common law, under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in s 61, must be proved beyond reasonable doubt, is abolished.

466 In his charge to the jury, the judge, on a number of occasions, correctly directed the jury as to the onus of proof in such a way as to ensure that the jury understood that it remained at all times on the prosecution. At the commencement of his charge, the judge reminded the jury that the applicant was presumed innocent of the charges against him, and that the prosecution was required to prove his guilt of those charges beyond reasonable doubt. A short time later, the judge told the jury that he would be summarising the arguments of the prosecutor and the applicant 'in their respective endeavours to persuade you one way or the other'. His Honour then stated:

In saying that I emphasise again it is not for Mr Davies to persuade you of anything. It is for the prosecution and the prosecution alone to prove the case beyond reasonable doubt.

467 Having outlined the constituent elements of the offence alleged against the applicant in each charge, the judge stated:

Now I remind you that you have to be satisfied of all four elements of the crime of arson before you could find Mr Davies guilty of the charge that you are considering. So you must be satisfied of all four, but the last three will not trouble you. If you have a reasonable doubt about any one of the elements, then you must find Mr Davies not guilty of the particular charge you are considering. If you are satisfied beyond reasonable doubt of all four elements, then you find Mr Davies guilty of the charge that you are considering.

468 The judge then directed the jury on the drawing of inferences. He instructed the jury that in order to find the applicant guilty, that he was the arsonist, the jury must be satisfied that that is the only reasonable inference that could be drawn from the circumstances established by all the evidence. His Honour stated:

If there is any reasonable explanation of the circumstances which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt. To take up that point in an alternative view of the facts, it must be a reasonable inference. I need to emphasise that so you understand it is not just any alternative explanation that is put forward, one that is truly theoretical or fanciful and it just does not fit the facts.

469 In that context, the judge reminded the jury that the applicant, in cross-examination, had asked a number of questions of witnesses which were based on an alternative view, asking the witness 'Well is it possible?' or asking the witness if he or she could eliminate a particular possibility. The judge then directed the jury in relation to those questions as follows:

Now with that type of question, you should consider all the evidence and the answers that were given in response which included from time to time, it is possible, everything is possible, that sort of thing. Consider those questions and answers and assess whether what really is being put forward and responded to is a theoretical possibility, one that when considered in light of all the practicalities of all the evidence, is the possibility one that is unreasonable or a fanciful theory and not a reasonable alternative, or is a reasonable alternative.

470 In that passage, the judge correctly directed the jury as to the drawing of inferences. As we shall discuss when considering ground 10.3, it was appropriate, and correct, for the judge to tell the jury that any competing inference, inconsistent with the prosecution case, must be a reasonable inference, and not just one that is 'theoretical or fanciful'.

471 In directing the jury in relation to that aspect of the case, the judge took care to ensure that the directions did not any way reverse the onus of proof. Thus, in summarising the directions on inferences, and having reminded the jury that any inference drawn by it must be rational and not involve speculation or guesswork, the judge stated:

... if there is any alternative rational conclusion or inference which is consistent with the accused's innocence, then you must give the benefit of the doubt to the accused. The accused does not have to prove any alternative conclusion or inference. It is for the prosecution to prove any alternative is unreasonable.

472 In his submissions the applicant then took issue with the passage which immediately followed that which we have just cited, in which the judge told the jury that the prosecution did not have to prove every fact put forward in the evidence. That direction was correct, and complied with s 61 of the Jury Directions Act. Contrary to the submissions made by the applicant, it did not involve, or imply, the proposition that any evidence that did not constitute an element of the charge did not have to be proven at all. Rather, in his directions on inferences, the judge emphasised that any inference to be drawn by the jury against the accused must be based on the evidence in the case.

473 The judge returned to the topic of inferences when giving the jury directions concerning the prosecution contention that the YouTube material proved that the applicant had a motive to commit the offences charged. The judge reminded the jury of the directions he had given in relation to inferential reasoning, and in particular reminded them as follows:

Mr Davies does not have to prove that these are rational alternative hypotheses, but rather the prosecution has to, via the evidence established, that they are not rational alternative explanations.

474 Finally, during its deliberations, the jury asked the following question:

Can we please have directions on how to proceed in making a final decision? We cannot come to a unanimous decision. Including ― circumstantial evidence and rationale (sic) and reasonable conclusions.

475 In the course of providing further directions to the jury in response to that question, the judge correctly stated:

... you consider all the evidence when assessing any alternative hypothesis. So the prosecution have to prove that the only rational and reasonable conclusion ... that Davies was the arsonist. They have to prove that to your satisfaction beyond reasonable doubt. ... Again, as I emphasised to you, if there's an alternative rational conclusion ― it's got to be a rational conclusion or inference that's consistent with Mr Davies' innocence, then you give him the benefit of the doubt. Mr Davies doesn't have to prove any alternative conclusion or inference. It's for the prosecution to prove any alternative is unreasonable but calling on all the evidence and saying well if you look at it you could reject that as not being reasonable. So Mr Davies doesn't have to prove that himself, he doesn't have to prove anything, it's for the prosecution to eliminate alternative explanations, and it does that by asking you to examine all the evidence, by the weight of the evidence exposing that the alternative explanation really is just not a reasonable one when you analyse it.

476 In that way the judge again ensured that the jury understood that the onus of excluding any rational competing hypothesis, consistent with innocence, lay and remained on the prosecution. The directions that we have set out in this section, individually and as a whole, did not in any way involve or suggest an inversion of the onus of proof.[86] Rather, the judge took care to ensure that the jury understood that at all times the onus of proof lay and remained on the prosecution. Accordingly, the points made by the applicant under ground 10.1 do not succeed.

Ground 10.2 (Directions concerning YouTube videos)

477 Ground 10.2 concerns the directions given by the judge to the jury in relation to the YouTube videos, upon which the prosecution relied to establish a motive by the applicant to commit each of the offences charged. In essence, the applicant made two points in relation to those directions.

478 First, the applicant submitted that the judge failed to give an adequate direction to the jury that it should not use the YouTube evidence in a manner which was prejudicial to him. He submitted that the judge should have given specific directions to the jury that it should not engage in tendency or propensity reasoning. Secondly, the applicant submitted that the directions, given by the judge on the issue of motive, were insufficient and unfavourable to him. In particular, he submitted that the judge should have directed the jury that if it rejected the prosecution evidence concerning motive, then that matter would weigh (as distinct from might weigh) in favour of the applicant.

479 It is trite law that motive is not an element of the offences charged, so that the prosecution was not required to prove the existence of a motive. The jury was entitled to take into account the existence of a proven motive, or the absence of such a proven motive, in considering the charges against the applicant. In the present case, it was important that the judge, in giving directions concerning motive evidence, ensure that the jury not misuse such evidence for any impermissible purpose. In particular, it was necessary for the judge to give sufficient directions to ensure that the jury did not engage in any impermissible propensity reasoning by concluding that, because the applicant was connected with, or was the author of, the YouTube videos, he was the kind of person who might or would engage in the conduct that was charged.[87]

480 In our view, the directions given by the judge, on the issue of motive, complied with those principles, and were sufficient to make sure that the jury did not engage in the impermissible propensity reasoning that we have mentioned.

481 In the section of the charge relating to the YouTube videos, the judge said the following to the jury:

Now the purpose of this evidence was to reveal that Mr Davies was motivated to use arson against society. This evidence of a particular and unusual motive may have the effect of answering the otherwise perplexing question of, why were these seemingly unconnected buildings targeted and burned? So that is the question the prosecutor posed and said this evidence endeavoured to resolve that for you.

So the YouTube evidence is led to establish motive and to show Mr Davies' interest in arson as a tool of revenge on society. That is the only purpose of the evidence.

It is important to appreciate that the prosecution do not have to prove Mr Davies had a motive or a particular one or this one in order to prove that he is guilty. A person's motive for committing a crime may never be known or fully known. However evidence of a motive may add to the case making the finding of guilt beyond reasonable doubt, easier to reach.

The absence of evidence of a motive may make reaching a conclusion to the level of beyond reasonable doubt more difficult. The absence of a motive may weigh in favour of the accused. Remember Mr Davies does not have to prove the absence of a motive. He does not have to prove anything.

So it may be that you are not persuaded as to a motive. Put it to one side and concentrate on whether the prosecution has proved by other evidence that Mr Davies is guilty or not guilty ― whether you are satisfied beyond reasonable doubt that Mr Davies is guilty of these five charges and if you are not satisfied, then he is not guilty.

Now in this case, importance or otherwise of the YouTube evidence and the weight that you attribute to it of course is a matter for you. What is important in respect of this evidence is that the prosecution contention that Mr Davies was the man in the mask on the YouTube videos and is the author of what is said in the YouTube videos.

The relevance of the evidence is based on the argument that the YouTube videos are the work of Mr Davies. If you are not satisfied of this, then you might put the YouTube evidence and the motive to one side.

482 In that passage, the judge correctly and accurately gave directions to the jury concerning the relevance of the YouTube evidence, and in particular, his Honour correctly directed the jury on the topic of motive.

483 In context it is clear that, when the judge told the jury that, if it was not satisfied that the YouTube videos were the work of the applicant, it 'might' put that evidence to one side, he was directing the jury that they should do so. His Honour then proceeded to give a specific direction to the jury as to how it must not misuse the evidence. His Honour stated:

... one matter you must keep in mind is that the confronting nature of the videos and the website pages should not overwhelm your considerations. You cannot let the material, whether it be the three videos tendered by the prosecution to establish a motive or the much larger and varied amount of material put by Mr Davies to close your mind to Mr Davies in respect of the central question before you as to whether the prosecution has proved he is the arsonist for any of the five fires. So, do not let prejudice or bias come into it.

Thus, do not allow the material to lead you to a prejudicial conclusion that Mr Davies is the kind of person who commits crimes or any particular crime. The purpose of the evidence is to establish that Mr Davies had a particular unusual motive.

484 In that passage, the judge correctly told the jury that it must not permit the YouTube evidence to prejudice their minds against the applicant, and, in particular, the judge cautioned the jury against prejudicial reasoning along the lines that the applicant was the kind of person who committed criminal acts or any particular crime. That direction was unimpeachable and appropriate. It would have been inappropriate for the judge to have dwelt further on that matter, for, to do so, might well have been counterproductive. Accordingly, we do not consider that either of the matters, raised by the applicant, in respect of that aspect of the judge's charge, are substantiated.

485 Under ground 10.3, the applicant submitted that the judge erred in his directions to the jury on the drawing of inferences, and, in particular that the judge misdirected the jury in his directions as to the nature of the hypothesis, consistent with innocence, which must be excluded in order that the charge be proven beyond reasonable doubt.

486 In particular, the applicant contended that the judge erred by directing the jury that, in order that such an alternative hypothesis be reasonable, it must be 'based on evidence'. The applicant contended that such a direction tended to reverse the onus of proof, and that it had the effect that the jury could not acquit him without there being positive proof of the alternative hypothesis. Further, the applicant contended that the judge misdirected the jury by stating that it should disregard any competing hypothesis that was fanciful or 'theoretical'; in particular, it was submitted that the use of the adjective 'theoretical' was incorrect.

487 In addition, the applicant submitted that the examples given by the judge, to illustrate a fanciful or theoretical alternative hypothesis, or a hypothesis not based on the evidence, created the risk that the jury might consider that it should only take into account a competing hypothesis if it exceeded the level of a 'mere possibility'.

488 The principles, relating to the drawing of an inference in a criminal trial, are well established. In order to convict an accused person, the jury must be satisfied that the inference of guilt is the only reasonable inference available on the proven facts of the case.[88] If the jury is unable to exclude a reasonable explanation of the facts which is consistent with the innocence of the accused, then it must find the accused not guilty. Such a competing hypothesis must be open on and consistent with the evidence in the case.[89] Such a competing hypothesis must be reasonably open, and not fanciful.[90]

489 In Barca, Gibbs, Stephen and Mason JJ, in their joint judgment, stated:

... although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.[91]

490 The principles were conveniently outlined by Warren CJ in Mannella v The Queen[92] in the following terms:

The manner in which a jury should be directed with regard to circumstantial evidence and the drawing of inferences is well set out in Part 3.5 of the Victorian Criminal Charge Book. In deciding upon the guilt or innocence of an accused person, a jury may rely on inferences drawn from circumstantial evidence. Proof of guilt by circumstantial evidence is not unacceptable or suspect of itself. However, where the prosecution case relies in large part on inferences drawn from circumstantial evidence, it is usually necessary for the trial judge to direct the jury that, first, to find the accused guilty, his or her guilt must not only be a reasonable inference, it must be the only reasonable inference which can be drawn from the circumstances established by the evidence, and, secondly, that if the jury considers that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, they must find him or her not guilty. These two requirements do not describe a separate standard of proof, they simply convey the meaning of 'beyond reasonable doubt' in cases involved circumstantial evidence.

...

An alternative hypothesis does not have to be 'equally open' or 'equally compelling' in order to give rise to a reasonable doubt as to guilt, such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence, and the accused is entitled to the benefit of the doubt necessarily created by that competing inference. By using phrases such as 'equally open', the trial judge was clearly trying to impress upon the jury the requirement that any competing inferences consistent with innocence sought to be drawn had to be reasonable, and that they could not properly rely upon a tenuous conjecture or fanciful supposition to find the accused innocent.[93]

491 In his charge, the judge gave detailed directions to the jury on the drawing of inferences in a case which is based on circumstantial evidence. The judge commenced by explaining to the jury the difference between direct evidence, and conclusions of fact based on an inference. In particular, the judge explained to the jury the distinction between the drawing of an inference, and engaging in speculation or guesswork. The judge then gave the following directions to the jury:

Now to find the accused guilty, that is, in this case, that Mr Davies was the arsonist, you must be satisfied that he is the arsonist and be satisfied that that is the only reasonable inference that can be drawn from the circumstances established by all the evidence.

If there is any reasonable explanation of the circumstances which is consistent with the accused's innocence, then the prosecution will have not proved his guilt beyond reasonable doubt.

To take up that point in an alternative view of the facts, it must be a reasonable alternative. I need to emphasise that so you understand it is not just any alternative explanation that is put forward, one that is truly theoretical or fanciful and it just does not fit the facts.

492 The applicant takes issue with the use by the judge of the adjective 'theoretical'. In our view, there was no vice in the judge using that epithet. It explained the distinction, that the judge correctly drew, between the drawing of a reasonable alternative inference, and engaging in an explanation which might be fanciful. The use of the adjective 'theoretical' reflected the principle that any competing alternative explanation of the facts must be open on, and consistent with, the facts established by the evidence.

493 The judge then reminded the jury that the applicant, in cross-examination, had asked a number of questions based on an alternative hypothesis, by posing the question 'is it possible?' or 'you cannot eliminate that possibility'. The judge directed the jury that it must consider all the evidence and the answers given to assess whether what was being put forward, and was responded to, was a theoretical possibility that was unreasonable or fanciful, or whether it was a reasonable alternative. Contrary to the submissions of the applicant, such a direction by the judge was appropriate. The type of questions asked by the applicant, in cross-examination, had the capacity to distract the jury from the correct approach to the drawing of inferences, and the consideration of competing inferences, in the trial. The judge was correct to direct the jury that, when considering such questions, it must differentiate between, on the one hand, a question which might involve a theoretical or fanciful alternative, and, on the other hand, a question which may postulate a reasonable alternative hypothesis.

494 As mentioned, the applicant has submitted that the judge erred in directing the jury that for an alternative hypothesis to be reasonable it must be 'based on evidence', and as such, the judge reversed the onus of proof. In support of that submission, the applicant placed substantial reliance on the decision of the New South Wales Court of Criminal Appeal in McIntyre.

495 Having directed the jury, in the manner just described, as to the distinction between a reasonable alternative hypothesis and a fanciful hypothesis, the judge reminded the jury as to the onus of proof, stating:

Remember of course that Mr Davies does not have to prove anything. He does not have to prove any alternative explanation of the facts. It is for the prosecution to eliminate the alternative explanation and it does so by all the evidence, by the weight of the evidence, exposing that the alternative explanation is unreasonable.

496 Having thus emphasised the onus of proof, the judge then summarised the reasoning process involved in a circumstantial case as follows:

So the reasoning process in a criminal trial when you are asked to act on circumstantial evidence as you are in this case, to draw a conclusion from all the facts, is as I have set out in this document; (1) from all the facts and circumstances, only draw rational and reasonable conclusions; (2) no speculation or guesswork. The conclusion or inference must be based on evidence; (3) if there is any alternative, rational conclusion or inference which is consistent with the accused's innocence, then you must give the benefit of the doubt to the accused. The accused does not have to prove any alternative conclusion or inference. It is for the prosecution to prove any alternative is unreasonable.

497 In that passage, the judge appropriately emphasised the incidence of the burden of proof, and stressed that the applicant did not have the onus to prove any alternative conclusion or inference. His Honour's reference to the fact that a conclusion or inference must be based on the evidence was directed to differentiating between the process of drawing an inference and that of engaging in speculation or guesswork. Thus, in directing the jury, the judge did not reverse the onus of proof. Rather, as noted, his Honour gave correct emphasis to the proposition that at all times the onus of proof lay and remained on the prosecution.

498 Later, in the course of his charge, the judge referred to the use that the prosecution sought to make of CCTV footage from service stations showing the white Magna, and the CCTV footage from outside his house. He referred to the prosecution contention that, taking all the evidence together, the only conclusion was that the white Magna was the applicant's vehicle and that he drove it, and no-one else was seen driving it or in it except him. His Honour then stated as follows:

And Mr Davies argues that the evidence relied on by the prosecution does not necessarily connect him and him alone to the car or mean if the car is somewhere that he is there. He raises the other scenarios. He raised the other scenarios, not based on any evidence that he pointed to in the case but on the basis 'can the scenario be excluded such as other people may use it or be in it or picked up or dropped off'. Mr Davies reiterated in this regard, the onus of proof is not (on) him. However, as I have said you can only act on evidence, is there any evidence that you can accept that might lead you to the conclusion or scenario raised by Mr Davies. It's a matter for you as to whether you consider the other alternatives such as those suggested by Mr Davies are reasonable ones on all the evidence or not.

499 Standing alone, the statement by the judge, that the jury should enquire whether there was evidence which it might accept that could lead to the scenario raised by the applicant, may be considered to contravene the principle that the applicant did not bear any onus to adduce evidence in support of the hypotheses relied on by him. However, the judge's direction must be read as a whole, and in the context of the directions that he had already given to the jury about the drawing of inferences. As noted, the judge, correctly, took care to ensure that the jury differentiate between, on the one hand, reasonable possibilities or inferences consistent with innocence, and, on the other hand, fanciful or unreasonable hypotheses. That aspect was again reiterated by the judge, after he had told the jury that it could only act on evidence, stating that the jury should consider whether, or not, the alternatives, such as those suggested by the applicant, were reasonable on all the evidence. Further, as we have earlier mentioned, in directing the jury concerning the YouTube material, and in providing further directions to the jury in response to the question asked by it during deliberations, the judge, correctly, reminded the jury that the applicant did not have to prove that the alternative inferences, relied on by him, were rational alternative hypotheses, but, rather, that the onus was on the prosecution to establish that they were not rational alternative explanations of the evidence.

500 As mentioned, the applicant relied significantly on the decision of the Court of Criminal Appeal of New South Wales in McIntyre in support of his submission that the judge had reversed the onus of proof in the directions to which we have referred.

501 In McIntyre, the appellant was convicted of malicious damage to property by fire. That fire occurred in the flat of the appellant's former de facto partner. The arson expert, who gave evidence at the trial, stated that there were two sources of the fire. One source was the electric radiator which had been on. The second source was a single lounge chair. The expert stated that it was possible a dropped cigarette could have been the source of ignition, but he found no evidence to lead him to deduce that that was the case. The owner of the premises, Ms West, gave evidence that the radiator was on, but she stated that the doona and bean bag, which were ignited by it, had been some distance from the radiator when she left the house. There was no evidence that Ms West had been sitting on the chair which was burnt, and she denied having done so. She did acknowledge that there were cigarettes or tobacco and a lighter or matches in the lounge room. One of the issues in the trial was whether the fire was caused accidentally or deliberately. In summing up to the jury, the judge stated:

There was no evidence that the fire was either accidentally or deliberately lit by Ms West. Those matters were no more than suggestions. You are not allowed to speculate or guess. You can draw inferences but only from evidence.

502 On appeal, Hulme J (with whom Sully J and Hidden J agreed) held that on the evidence it was open to the jury to consider that the hypothesis, that the fire had been commenced accidentally, was reasonably open on the evidence. Hulme J noted that while it would be a matter of speculation whether in fact the fire had commenced accidentally, nevertheless there was no speculation involved in considering whether that was a reasonable possibility. In those circumstances, he concluded that the instruction given by the judge to the jury, and which we have quoted above, was tantamount to an instruction that the jury could not take into account the possibility that the fire was accidental, and as such was a misdirection.[94]

503 Plainly, the judge, in the present case, gave no such direction to the jury. Rather, as we have discussed, the judge correctly instructed the jury that the applicant did not have to prove any alternative explanation of the facts, but that it was for the prosecution to eliminate any such alternative explanation. In that respect, in answer to a question by the jury (to which we will further refer under ground 12), the judge reminded the jury of that concept in the following terms:

If there is any reasonable explanation of the circumstances which is consistent with the accused's innocence then the prosecution will not have proved his guilt beyond reasonable doubt but it has to be, of course, an alternative view of the facts, it must be a reasonable alternative and I need to emphasise that so you understand it's not just an alternative explanation that's put forward, merely mere theory or just fanciful, something that just doesn't fit the facts. ... If there's an alternative rational conclusion ... that's consistent with Mr Davies' innocence, then you give him the benefit of the doubt. Mr Davies doesn't have to prove any alternative conclusion or inference. It's for the prosecution to prove any alternative is unreasonable ... .

504 The applicant next contended that the judge gave examples, of questions that the applicant asked in cross-examination, which were unfavourable to him. We do not agree. Shortly after the passage to which we have just referred, the judge, by way of an example, referred to a question that the applicant asked. Senior Constable Cook, in respect of the fire at St Oswald's, that was the subject of charge 3. The judge reminded the jury that the applicant had asked Senior Constable Cook if he could eliminate that someone was lying in the back of the vehicle or underneath the dashboard, or was bending over out of sight, when Senior Constable Cook said that he turned into Seaton Street and saw the white Magna parked and that it was empty. Having referred to that question, the judge told the jury that it could consider such a proposition by reference to the other evidence in the case, including the CCTV footage of the vehicle leaving and returning to the premises at Yvette Drive and as to how many people got into or out of the vehicle. In our view, that was a perfectly appropriate example, providing a simple illustration of the direction given by the judge to the jury.

505 For those reasons, the directions that we have discussed, and to which we have earlier referred, in relation to inferences, complied with the principles stated by the authorities to which we have referred. Accordingly, the arguments made by the applicant in support of ground 10.3 should be rejected.

Ground 10.4 (Whether directions on inferences unbalanced)

506 Under ground 10.4, the applicant contended that the judge's charge on inferences was unbalanced, because it directed the jury to a line of reasoning that the applicant was guilty of the offence as charged.

507 In support of that submission, the applicant has pointed to two examples of inferential reasoning given by the judge to the jury in the course of explaining the difference between direct evidence and indirect evidence.

508 In the first instance, the judge gave an example of seeing someone inside a court house wearing a raincoat and carrying an umbrella, both of which were dripping wet. He told the jury that in those circumstances the inference could be drawn that it was raining outside and that the person with the raincoat and umbrella had 'set foot' outside in the rain. Pausing there, that example was unimpeachable. The use of the phrase 'set foot' was not unfair, but, rather, it illustrated to the jury the fact that an inference can be drawn as to where a person has been from observations made about that person's appearance or movements.

509 As a second example, the judge postulated the instance of a parent, early in the morning, noting that a cake that had been baked at night had a piece missing, and the adult's six year old child has icing all over his face. Such an example was appropriate. It did not in any way suggest to the jury a line of reasoning 'directed ... towards guilt' as contended by the applicant.

510 The third example of inferential reasoning given by the judge to the jury was one commonly used in criminal trials. The judge instanced the case of a person being seen in Melbourne at 4.00 pm, and subsequently on the same day in Sydney at 9.00 pm. The judge told the jury that in such a case it would be appropriate to draw the conclusion that that person must have flown to Sydney even though he was not seen to 'put one foot onto any plane'. Again, the use of the phrase 'put one foot' was innocuous. It illustrated relevantly the difference between direct evidence, and indirect evidence, of a person being in a particular place at a particular time.

511 The applicant next took issue with the judge (according to the applicant) referring to the tracker device evidence as 'unassailable objective evidence that puts Mr Davies at the scene'. In fact, in using that phrase, the judge summarised part of the prosecution case. His Honour did not endorse that proposition.

512 Finally, the applicant has submitted that the judge made repeated use of the phrase that coincidence was a 'fanciful' explanation in respect of the evidence as to the presence of the applicant at or near the scene of each of the five fires. In our view, the point is without merit. In the passages referred to by the applicant, the judge did no more than outline to the jury the line of coincidence reasoning relied on by the prosecution.

Ground 10.5 (Directions on coincidence evidence)

513 Under ground 10.5, the applicant submitted that the judge erred in directing the jury on coincidence evidence. In particular, the applicant submitted that the address by the prosecutor implied that it could convict the applicant 'by default' if the jury rejected coincidence as an explanation for the presence of the applicant at or near the location of each of the five fires. It was submitted that the judge failed to direct the jury that it could not convict the applicant 'by default' if the jury rejected coincidence as an explanation.

514 We do not accept that submission. The final address by the prosecutor did not suggest that the jury could convict the applicant 'by default' if it rejected coincidence as an explanation of his presence at or near the location of each of the five fires. In his address, the prosecutor outlined each of the seven categories of evidence relied on by the prosecution as part of its circumstantial case. The seventh such category was coincidence evidence. In addressing the jury on that aspect of the case, the prosecutor, on three separate occasions, referred to coincidence reasoning as 'a piece of circumstantial evidence'. In doing so, the prosecutor made it plain that the coincidence evidence was but one aspect of the prosecution case. The prosecutor did not suggest to the jury that it could convict the applicant on the basis of the coincidence reasoning relied on by the prosecution alone.

515 In summarising the prosecutor's line of reasoning to the jury, the judge, similarly, made it plain that the coincidence evidence (or reasoning) was one of the seven aspects of circumstantial evidence relied on by the prosecutor. The judge did not suggest that the jury could convict the applicant 'by default' by rejecting coincidence as an explanation of his presence at or near the fires. Specifically, the judge told the jury that coincidence reasoning was 'only one part of the prosecution case'. His Honour said to the jury:

The evidence has been led for the limited purpose of showing that coincidence cannot explain these arsons. They are linked, and the link is that there was one arsonist, and ... that is Mr Davies, but you should consider each charge separately, and by reference to the evidence relating to that charge, but you add, if you want to, the evidence of the other charges that establishes ― if you think it does ― that coincidence cannot explain the events.

516 In that way, the judge sufficiently explained to the jury that coincidence evidence was but one part of the prosecution case, and he cautioned the jury against inappropriate misuse of that evidence. Accordingly, we do not accept the submissions made by the applicant in support of ground 10.5.

517 It follows from the foregoing discussion that ground 10 of the application for leave to appeal against conviction is not made out.

Ground 11 - The judge was biased against the applicant

(a) the trial judge was not biased against the applicant; and

(b) the fair minded lay observer, having sat through many months of pre-trial argument and over three months of jury trial, would not reasonably apprehend that the judge might not bring an impartial mind to the case.

519 These conclusions are essentially ones of impression, informed by reading relevant pre-trial transcripts and all of the trial transcript.[95] It cannot be gainsaid that this was a fraught trial with many clashes between the trial judge and the applicant. In part, this was due to the applicant's unrepresented status. On occasions, he did not appear to respect the court's authority or understand that rulings were final. It also seemed that the trial judge was, at times, perhaps a little oversensitive to criticism from the applicant, and perhaps too ready to intervene when the applicant was cross-examining, although this impression must be tempered by the other duties required of his Honour, including to run the trial efficiently and in accordance with the rules of evidence.

520 These observations are made in the cold light of the appellate court and, even with the advantage of listening to various excerpts of the audio recording of the trial, it is impossible to capture the full flavour of the interchange between the applicant and bench.

521 What can be said with certainty is that there was a long lead up to the jury trial itself. The trial was allocated to his Honour in March 2014. Between March 2014 and April 2016, there were various interlocutory proceedings including subpoena arguments, a five day bail application, two applications for his Honour to recuse himself for apprehended bias (both of which were the subject of unsuccessful interlocutory appeals)[96] and other less substantial matters. By April 2016, two years had gone by, the applicant remained unrepresented and substantial pre-trial argument had commenced. It is unnecessary to recite the areas covered by those arguments. It is sufficient to observe that very few areas of potential submissions were left unexplored. The applicant vacillated between self-representation and engaging the assistance of a VLA appointed barrister and solicitor.[97] It will be recalled that the commencement of the trial was delayed by this.[98]

522 We shall set out the relevant legal principles that apply to actual and apprehended bias applications and appeals. We shall then set in broad compass some of the applicant's more prominent arguments, the respondent's response to those arguments and our analysis. It is impractical to refer to every submission made by the applicant in his hundreds of pages of written submissions, however, we have read and considered each individual submission and have also considered them globally. We have also listened to relevant portions of the audio tape of the trial.

523 The principles concerning bias applications are well established and have received recent consideration by this Court, other intermediate appellate courts and the High Court.[99] It is sufficient to set these principles out in summary form:

• A judge must not sit on a case where he or she is biased (actual bias) or might reasonably be perceived to be biased (apprehended bias).[100]

• The test for apprehended bias is whether a hypothetical fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.[101]

• A judge will only be disqualified for actual bias if a party establishes that a judge is so committed to an outcome that he or she will not alter that outcome, regardless of the evidence and/or arguments presented.[102]

• The principles for actual and apprehended bias still apply to a judge in a criminal jury trial. Even though a judge in a criminal jury trial is not responsible for determining questions of fact, he or she is still required to make evidentiary decisions, may subtly influence the jury and must determine sentence in the event of a guilty verdict or verdicts.[103]

• A party making a recusal application must identify the cause of an appearance of bias and demonstrate the logical connection between the cause and the appearance of partiality. A bare assertion that a judge has an interest in the outcome of a case is not sufficient.[104]

• The apprehension of bias must be reasonable and not fanciful or unreasonable.[105]

• While a hypothetical lay observer does not have a detailed understanding of the law, he or she has basic knowledge of the judicial process and the issues to be determined.[106]

• The hypothetical lay observer does not know the personality of the judge, but knows that the person is a judge who has been trained to discount irrelevant, prejudicial or immaterial matters.[107]

• The hypothetical lay observer has a broad knowledge of the material facts of the case and the circumstances that led to the trial. The lay observer also knows that the judge does not rely on inaccurate or incomplete information, or rely solely on the facts known to one of the parties.[108]

• A judge's bad temper or mere lack of niceties is not sufficient to establish apprehended bias.[109]

• A short and emotional exchange will not necessarily demonstrate that a judge is incapable of behaving impartially. However, prolonged or intense animosity towards a party, even if the animosity is not always apparent, may amount to actual or apprehended bias.[110]

• A judge may express a tentative view about an issue without creating an apprehension of bias.[111]

524 The applicant contends the matters below demonstrate actual and apprehended bias, both individually and in combination. The applicant has divided his submission into 10 parts. The headings are in the applicant's words. It is impractical to set out and analyse every one of the applicant's factual assertions and contentions. We have paraphrased the applicant's submissions as we apprehend them.

(a) Part 1 - General incidents and matters from recent mention hearings:

• Audio was refused to the applicant, thus 'stymying' him from presenting a full and proper recusal application.

• The 'unrepresented litigant' was not assisted by his Honour.

• Rulings were withheld.

• The judge was 'systematically unbalanced' on all issues.

• The judge has a religious school education.

• When issues of bias were raised with the trial judge, his Honour did not pause the trial on 19 May 2016, 16 June 2016, 10 October 2016, 7 November 2016, 9 November 2016 and 21 November 2016.

• The refusal of the plea hearing adjournment application bespoke of prejudgment, as did the statement by his Honour that the trial would proceed from start to finish without adjournment.

• The anonymising of the names of court staff and the prosecutors, together with the refusal of copies of audio and video to the defence, is an example of bias.

• Discussion about a previous Children's Court matter on 17 June 2014 demonstrates bias.

• His Honour's treatment of O'Neill[112] and Verdins[113] demonstrates bias.

• His Honour ignored the inequality of arms.

• On 7 December 2016, his Honour interrupted the applicant repeatedly.

• His Honour ordered a Forensicare report against the applicant's wishes.

(b) Part 2 - Expressions of frustration, emotion and loss of patience by the judge that indicate decisions may be influenced by emotion and/or animosity towards the accused:

• There were many expressions of anger/frustration by the trial judge.

• There were occasions when his Honour left the court 'in a huff' or stormed out.

(c) Part 3 - Comments that seemed to attack the accused personally (and/or making of false accusations) and damaging credit of the unrepresented accused:

• His Honour made comments that amounted to personal attacks upon the applicant, including remarks that commenced with 'you know full well'; the applicant was also accused of 'not following the rules' and 'you've always got to have the last word'.

• During discussion about the location of a piece of evidence (a receipt), the judge implied that the applicant had lied to him.

• On 7 November 2016, there was a discussion in front of the jury over the applicant's alleged breach of the rule in Browne v Dunn[114] in which his Honour accused the applicant of lying in front of the jury.

• His Honour expressed hostility at the applicant raising a matter just before the jury were to be brought in.

• On 8 November 2016, his Honour criticised the applicant's cross-examination in front of the jury.

• On 28 August 2016, his Honour criticised the applicant for technical and logistical problems that were not the applicant's fault. This occurred again on 25 October 2016 and 7 November 2016.

• On 24 October 2016, an exchange between the applicant and his Honour resulted in his Honour accusing the applicant of being 'completely out of line'.

• On 25 October 2016, his Honour unfairly disparaged the applicant about how he referred to portions of the record of interview relating to the times of questions. His Honour also unfairly disparaged the applicant for not following rules.

• His Honour regularly interrupted the applicant's cross-examination.

• His Honour incorrectly sought to prohibit the applicant from requiring a 'yes' or 'no' answer to a question in cross-examination, which led to an animated discussion.

• His Honour disparaged the applicant and insinuated that he was dishonest on 7 November 2016.

• His Honour wrongly intervened in the applicant's cross-examination of Mr Moran.

• His Honour made a short disparaging remark on 7 November 2016.

(d) Part 4 - Adverse findings and allegations against the accused (including the health issue):

• His Honour made incorrect and adverse comments about the applicant's 'choice' to be unrepresented.

• His Honour made adverse comments about the applicant's complaints of ill health on 23 August 2016.

• On 11 October 2016, his Honour made adverse comments about the applicant's failure to find a document in a timely way.

• On 5 October 2016, his Honour implied that the applicant unnecessarily and ostentatiously yawned in court.

• On 25 October 2016, his Honour prejudged an adjournment application for a health complaint.

• His Honour gave immediate acceptance to any application the prosecution made for time.

• His Honour unfairly dismissed the applicant's health complaints and Mr Watson-Munro's medical report.

• On 12 October 2016, his Honour ignored the applicant's obvious confusion and unfitness to continue.

• His Honour wrongly refuted or brushed off an adjournment application based on health grounds on 9 November 2016.

(e) Part 5 - Disparage a defence to the jury or withdraw a defence and some further general disparaging comments:

• On 3 November 2016, his Honour stated to the jury that he and the applicant were on an 'even keel' again after an incident in which his Honour wrongly concluded that the applicant had directed a remark at him and said that he felt 'incandescent rage'.

• On 8 September 2016, his Honour wrongly laid the blame with the applicant for an earlier issue.

• On 22 September 2016, his Honour commented adversely about evidence under challenge relating to the property log.

• When his Honour exhorted the applicant to use common sense, he implied that the applicant lacked common sense.

• On 12 October 2016, his Honour spoke to the applicant in a disparaging manner immediately prior to the witness Hewitt giving evidence.

• On 25 August 2016, his Honour told a witness he did not want crime scene photos of the witness's shop to come as a shock, thus demonstrating bias.

(f) Part 6 - Threats to lay charges for contempt against the unrepresented accused for exercising right to bring complaints, raise concerns and criticise the judge:

• On 23 August 2016, his Honour threatened the applicant with contempt, showing bias in doing so.

• On 11 October 2016, the applicant complained about unfairness and his Honour's misunderstanding of various issues. His Honour hinted and threatened the accused not to criticise his rulings.

• His Honour suggested that he would send a witness home following the applicant wanting a break to put legal applications to the judge.

• On 7 September 2016, his Honour became very angry, threatened to send a witness home, told the applicant he should not speak and refused to hear him further.

• On 29 September 2016, his Honour told the jury that the defence had forfeited its right to cross-examine the witness Jelic due to the applicant's behaviour. This demonstrated bias.

• On 23 June 2016, his Honour demonstrated bias by sending home the witness Labas before cross-examination had concluded.

• On 7 November 2016, his Honour threatened to send home another witness, the informant, if the applicant was not in a position to continue his cross-examination.

• On several occasions, his Honour stated that the trial would proceed in the applicant's absence for various reasons.

• On 27 June 2016, his Honour demonstrated bias by intervening in the applicant's cross-examination and threatening to send the witness away.

(g) Part 7 - Frequent interruptions and over-speaking the unrepresented accused at all stages of the trial and refusing to hear the defence on some issues:

• His Honour's ruling on the first recusal application contains a concession by the trial judge that his style is irritating the applicant.

• The interruptions from the bench were an attempt to derail the unrepresented accused and fragment and impede his defence - they were indicative of animosity.

• On 10 October 2016, his Honour demonstrated bias by telling the applicant not to endeavour to have the last word.

• On 27 September 2016, his Honour demonstrated bias by cutting off the defence mid-sentence, interrupting angrily and falsely accusing the applicant of going behind a ruling.

• On 24 October 2016, his Honour asked a question during the applicant's cross-examination of the witness Barnes that was detrimental to the applicant's case, thus demonstrating bias.

• On 25 October 2016, his Honour demonstrated bias by cross-examining the applicant in front of the jury about a record of interview matter.

• Later on 25 October 2016, his Honour interrupted the applicant's cross-examination of Mr Barnes and in doing so, demonstrated bias, and suggested the applicant was not following the rules.

• The judge exhibited a negative view of the accused on 25 October 2016 and accused him of 'conspiratorial nonsense'.

• His Honour misunderstood the rule in Browne v Dunn and applied it incorrectly, thus leading to several exchanges that demonstrated bias.

• The prosecution was permitted to ask leading question during evidence-in-chief.

(h) Part 8 - Failure to assist:

• The circumstances surrounding the applicant's aborted attempt to engage solicitors immediately before the trial demonstrated a denial of procedural fairness and thus bias.

• Granting the applicant's VLA appointed barrister leave to withdraw demonstrated bias.

• The judge demonstrated bias when an exchange occurred concerning a subpoena directed to the applicant's brother.

• The judge failed to give the applicant adequate assistance: (a) in his dealings with Corrections in order to ensure that he had adequate resources to represent himself at trial; and (b) regarding inadequate computer facilities.

• His Honour prejudged the facilities issue.

• His Honour applied a double standard, allowing the prosecution time to deal with technology problems but not allowing the applicant the same latitude.

• His Honour refused to provide transcript of rulings in electronic form.

• The judge would put multiple propositions and explanations to the applicant despite the applicant, in the opinion of Mr Watson-Munro, being unfit to cope with a trial.

• The judge refused the defence application to have the 'rest day' on Wednesdays and not Fridays, thus demonstrating bias.

(i) Part 9 - The judge created an atmosphere in the jury trial that the trial had an approximate expected length and that the accused was causing delays and making the jury stay longer to create animosity and dislike of the accused and dash his standing:

• The judge's direction to the jury about the time they were taking to consider their verdict demonstrated bias because his Honour was effectively saying that 'you would have to be stupid to dissent and not find the accused guilty'.

• In giving the jury updated timelines, his Honour effectively blamed a blowout in estimates on the applicant.

• By repeatedly thanking the jury for their patience, his Honour was directly and indirectly criticising the applicant for wasting time.

(j) Part 10 - Remaining issues:

• His Honour made comments to media personnel who were in court, feeding them information for the purpose of eliciting a strong media backlash against the accused.

• The transcript may be doctored.

• The judge called a witness himself at the first bail application, Mr Brendan Money, in order to counter the applicant's assertions of maltreatment.

• The judge used exaggerated body language in front of the jury, giving the appearance that he was deliberately trying to undermine cross-examination. Amongst other instances, his Honour and his associate appeared 'festive' when the jury belatedly received the 'briefing photo'.

• The judge appeared to assist the Crown case from a very early stage.

525 The applicant then provided to the court a document entitled 'Written case extension - Recusal/bias ground - Tone and tenor and general updates and changes due to last-minute provision of trial audio'.

526 On 26 November 2018, we ordered that the applicant be supplied with a disc of the audio recording of the pre-trial and trial hearings. The applicant, despite this, resubmitted:

[He is] a long suffering litigant who was denied his right not to be tried unfairly, denied a trial according to law, and is being prevented from preparing and presenting his true appeal and recusal issues due to issue of systematic withholding and late provision of evidential materials that forced Mr Davies to make rushed preparations at the las minute and overload him with work and stress...

527 The applicant then reviewed the audio of the trial. He contended that it 'did not match the extent how it was at the time of the trial' and that the volume of the judge's voice seemed lower, and proposed that the prosecution had '[t]ime...to review or edit volume (etc.) to gain advantage, even re-record fragments of the audio'.

528 The upshot of the applicant's perception of the audio provided to him is that many of the assertions made about 'shouting', 'yelling' and the like as 'tone and tenor' examples are no longer relied upon.

529 Of the remaining passages relied upon by the applicant to demonstrate bias through hostile 'tone and tenor', because of the aforementioned perception of the application as a different and milder tone than he remembered, the applicant did not press this aspect as firmly as others he has pressed on this appeal. We have listened to various impugned portions of the audio and are prepared to act on the basis that on many occasions, his Honour's voice was perceptibly louder and sharper than his normal measured volume and tone.

530 Having been given the opportunity to provide these further written submissions on 'tone and tenor', the applicant provided 11 further pages of submissions on this ground. He largely repeated submissions made in his previous 187 page recusal document, adding detail such as that prison staff had told him to appeal, and that a solicitor had told him (in effect) that the Court of Appeal was incorrect in describing his Honour as 'patient' in a previous recusal application and that his Honour 'made it his business to ensure [the applicant] was convicted'. The applicant did not name this solicitor.

531 The applicant complained of judicial interference, prejudgment on the plea and sentence, and 'unreasonable and bigoted' findings on the plea. He criticised his Honour for failing to conclude that he (the applicant) was the victim in his sentence and refusing to provide the jury with a transcript of final addresses when asked.

532 The respondent took a broader approach to this issue of bias. It submitted that the applicant had already made and lost two recusal applications to his Honour, and two related interlocutory appeals to this Court. The respondent emphasised that this Court had described the first appeal as 'utterly groundless' and in the next appeal, stated that his Honour had not been unreasonable or unduly confrontational but had simply endeavoured to keep a torturous piece of litigation on track. The Court commented that the trial judge had given the applicant considerably greater latitude than would ordinarily be accorded to counsel.

533 The respondent submitted that the trial judge continued to act in that way throughout the pre-trial hearings and trial hearings. There was nothing that would cause the notional observer to 'perceive the judge did not bring an unprejudiced mind to the trial'.

534 The respondent submitted that the trial judge was willing to hear a recusal or bias application, and disputed the applicant's assertion that he endeavoured to avoid same. This willingness, it was submitted, did not extend to the trial being stopped or delayed for days.

535 The respondent submitted that a consideration of the whole of the trial proceedings does not bear out that the judge was difficult, combative or that he went out of his way to place the applicant at a disadvantage. His Honour, so it was contended, took pains to ensure that the unrepresented applicant was provided with assistance and received a fair trial.

536 The respondent acknowledged that the trial judge frequently interrupted the applicant and cut him off, however, this was necessary for his Honour to maintain effective control over the court. Further, the respondent submitted that when his Honour did speak with a raised voice, it was often in response to the applicant talking over him.

537 After a contested committal, the applicant was committed for trial on 25 July 2013 - that is, over five and a half years ago. The matter was allocated to the trial judge in March 2014 for the completion of pre-trial argument[115] and trial. Over the next 11 months, his Honour conducted many mentions and other hearings.[116] The applicant was unrepresented during this time. A bail application occupied five days; there were subpoena arguments in which public interest immunity was claimed; the applicant contended disclosure was slow and incomplete; there were discussions during which the applicant was encouraged to acquire representation. By

3 September 2014, there had been some 20 days of hearings.

538 On 3 September 2014, the applicant foreshadowed to his Honour that the applicant wished to make an application that his Honour recuse himself for apprehended bias. This application proceeded over seven full or partial court days and concluded on 6 February 2015. His Honour refused the application on 18 February 2015.

539 At the interlocutory appeal against this refusal, the applicant relied upon the cumulative impact of various impugned judicial behaviours, a number of which were described in 'extravagant language'.[117] Whilst the applicant contended that the trial judge interjected repeatedly into defence's submissions, this Court, having perused the transcript, considered the complaint to be unmeritorious.[118] The applicant criticised his Honour for not addressing every point he made in the recusal application. This Court noted, however, that the written outline of submissions to the judge raised over 50 points of complaint, the applicant expanded on those points orally for a number of days and that the judge sensibly sought to group the complains into categories or groups, so as to make his reasons 'relatively compact and intelligible'.[119]

540 This Court observed that his Honour had stated correctly that instances of conduct that might arguably give the appearance of bias should be considered by the observer against the context of the proceeding considered as a whole. On an occasion where his Honour left the bench, having been spoken over by the applicant, the court considered the judge to be wise 'when matters were getting out of hand'.[120]

541 In all, the applicant argued 29 contentions. As we have said, this Court found his application, on analysis, to be 'utterly groundless'.[121] The few areas of contention identified, and conceded by his Honour in his ruling, considered discretely and in combination could not, the Court stated, by any stretch of the imagination, cause the notional observer to perceive that the judge might not bring an unprejudiced mind to the then forthcoming trial.

This matter has proceeded, without getting to trial, for a very long time. The transcript shows the applicant to be, in our opinion, an intelligent and mentally agile man. Accepting that he has had some cause for complaint about disclosure issues, his ability to string the matter out would do credit to the lawyers in Jarndyce v Jarndyce. The trial is fixed for hearing, as we earlier noted, in May this year. Barring some unexpected and compelling development, that is when it should be held.[122]

543 That decision by this Court was an important milestone in the protracted pre-trial history of this case; that history, including the Court's postscript, was clearly increasingly relevant to the conduct of the trial as the months went by.

544 Pre-trial hearings continued intermittently throughout early 2015. On 9 June 2015, the applicant made a further recusal application. The learned trial judge rejected this application. On this occasion, the application ventilated a variety of complaints ranging from being denied a belt to being refused permission to sit at the bar table. The applicant sought to institute an interlocutory appeal, which was heard by this Court on 28 August 2015. In a judgment delivered on 8 September 2015,[123] the Court remarked upon the 'torturous complexity' of the pre-trial process, which 'strongly favour[ed] its speedy progress and resolution'.[124] The Court also observed that the trial judge had been confronted with a number of instances 'in which the applicant has simply refused to accept the judge's ruling'.[125]

545 The Court went on to cite as an example of this approach a passage from pre-trial argument. The Court said the following passage exemplifies the applicant's approach:

We also note that the judge has been confronted with a number of instances in which the applicant has simply refused to accept the judge's ruling. The following exchange exemplifies the applicant's approach:

HIS HONOUR: You can object in the course of a witness being asked questions if it's a legitimate objection, but when people are making submissions, the usual practice is that they do so uninterrupted.

ACCUSED: You might be right, Your Honour, but the point being is that

HIS HONOUR: Do you think I'm not?

ACCUSED: I'm not saying you are or you aren't. I'm not a lawyer.

HIS HONOUR: I am right. That's what happens. That's the practice. So, we'll apply that.

ACCUSED: I'm not willing to say it is or is not right, but.

HIS HONOUR: Why not?

ACCUSED: Because I haven't looked it up.

HIS HONOUR: You won't accept it from me that the usual practice in criminal trials is that submissions made by one party are not interrupted by the other?[126]

ACCUSED: I wouldn't accept it unless I looked it up, that's all. It's not relevant so

Self-evidently, on occasion, the applicant simply does not accept that the judge has the capacity to determine procedural matters against him. A trial can only proceed satisfactorily if the judge's power to control proceedings is accepted. It cannot go around in circles in the way that the applicant contemplates.[127]

547 By April 2016, full time pre-trial argument had commenced. On 9 May 2016, the applicant applied that a further foreshadowed recusal application be adjourned or temporarily stayed until materials were provided and time allowed for the proper preparation of same. This application was refused. In short, his Honour concluded:

• The applicant has ample familiarity with recusal authorities, however he (his Honour) will 'continue to provide relevant authorities to Mr Davies' as he had done in relation to important evidentiary matters.

• The applicant's claims of illness and exhaustion are unsupported by any medical evidence.

• Great flexibility and indulgences have been shown to the applicant so as to manage his time and workload. He was allowed 11 days to prepare this application.

• The applicant was not prepared to allow the court to assist in his communications with VLA.

• That he (his Honour) needed to be firm with the applicant otherwise this case 'will circle endlessly'.

548 The applicant submitted that the ruling was outrageous, oppressive, unsatisfactory and unfair.

549 This background provides only a snapshot of the atmosphere revealed by a full examination of the transcript. It is sufficient to observe that the trial judge was confronted by an unrepresented litigant who was determined, as was his right, to contest almost every issue, every argument, every fact and every proposal - no matter how trivial or uncontentious. Compounding this approach, the applicant seems to have had little respect for his Honour generally, and none for his authority.

550 The full transcript reveals, in our view, that his Honour was, by and large, patient with the applicant. True it is that on many occasions, viewed in isolation, his Honour may have appeared impatient, brusque, irritated and occasionally, simply angry. When considering these passages, it must be borne steadily in mind that his Honour had many other functions in this difficult trial, apart from the mere exercise of patience. It was also critical that his Honour keep control of the proceedings. We consider that had his Honour not sought to exercise a significant measure of control in the trial, it is likely that the trial would have miscarried - either as a result of the introduction of inadmissible material that was prejudicial to the applicant, or because the jury would have become increasingly distracted by the agitation by the applicant of issues that were, at best, of marginal relevance only.

551 We have listened to various of the audio passages identified by the applicant. As we indicated earlier in these reasons, on certain occasions, his Honour's voice was raised and his tone sharper than usual. This was often when the applicant talked over his Honour or made a disrespectful remark.[128]

552 We have set out, as we understand them, the applicant's many contentions of bias manifested in various ways. It seemed to us that the complaint is of actual bias with apprehended bias as a fall back complaint. Some complaints can be dismissed readily, as simply not capable of evidencing bias - for instance, the judge's alleged religious education, the anonymising of names of court staff and prosecutors, and post-verdict calling for a Forensicare report. Other complaints require more consideration and as we have indicated, an appreciation of the entire context of the proceedings. These complaints can only be considered in their proper context.

553 In our view, neither actual nor apprehended bias can be inferred from any of the matters raised in Part 1 ('General incidents and matters from recent mention hearings'). The applicant was assisted by his Honour on many occasions. For further detail of this assistance, see paragraph 576 of these reasons, together with its footnotes.

554 We consider the complaint that the judge was 'systematically unbalanced' to be totally unfounded. His Honour, when confronted with regular accusations of bias, would offer the applicant a convenient but not immediate time to air his application. The last four occasions (10 October 2016, 7 November 2016, 9 November 2016 and 21 November 2016) were during the jury trial itself and it was simply impractical to immediately pause the trial, give the applicant the time he wanted to prepare a recusal application, hear it and rule on it. For example, on 10 October 2016, the following exchange between the judge and the applicant occurred:

HIS HONOUR: Just bring in Mr Xydias and the jury.

ACCUSED: Um, Your Honour, I'd like to say just quickly on the record a few things. Um, firstly - - -

HIS HONOUR: I want the jury. You can do it after court, Mr Davies. Bring in the jury and bring in - - -

ACCUSED: Well I think Your Honour's biased against me, and I'm getting shutdowns and Your Honour - - -

HIS HONOUR: Bring in the jury and bring in the witness. And Mr Davies's complaints - - -

ACCUSED: It's inappropriate that you continue to hear this case.

HIS HONOUR: - - - will occur, if he wishes to make them, at the end of the day.

ACCUSED: You're just trying to talk - you keep talking over me and trying to shut me down.

HIS HONOUR: Thank you.[129]

555 It is apparent from the transcript that this exchange commenced with his Honour, in the jury's absence, directing the applicant not to make comments within questions. The applicant's refusal to accept the authority of the court resulted in the exchange above, which occurred at around 3.30 pm. The only sensible course was to continue with evidence until just before the appointed time for closure of the court and then to hear to the application in the jury's absence. At that time, the applicant sought and was granted leave to put the application at a convenient time. As we have said, the judge's duty was to hear the trial and plea as fairly and efficiently as practicable. His Honour's commitment to that task is not evidence of actual or apprehended bias, nor of any form of prejudgment.

556 As to Part 2 ('Expressions of frustration, emotion and loss of patience by the Judge that indicate decisions may be influenced by emotion and/or animosity towards the accused'), in our view, all of the expressions of anger, emotion or frustration were responsive to significant provocation from the applicant. We consider that in the context of the proceeding, none of these expressions are evidence of actual bias or apprehended bias. A fair minded lay observer, having observed the entire proceedings, would not reasonably apprehend from these expressions that his Honour might not bring an impartial mind to the case. We also note, as would the fair minded lay observer, that the large majority of these utterances were either before the jury were empanelled or in its absence. Of the 163 passages quoted by the applicant in his 187 page submission, 111 were not in the presence of the jury.

557 Further, on occasions when his Honour left the court abruptly (characterised by the applicant as 'storming out' or leaving the court 'in a huff'), as this Court observed in Sloan, his Honour was wise to do so if he perceived that the applicant was getting out of hand.[130]

558 Our conclusions on Part 3 ('Comments that seemed to attack the accused personally, including making of false accusations and damaging credit of the unrepresented accused') are similar. As we have said, his Honour was obliged to control the proceeding and to keep the trial moving forward. Criticisms of the applicant's cross-examination, or his failure to put propositions to certain witnesses, usually commenced civilly, and if the atmosphere degenerated, again, it was responsive to remarks made by the applicant. His Honour did regularly interrupt the applicant's cross-examination. This was usually in response to some defect in the questioning, either relevance or accuracy based, and the exchange on a number of occasions regressed into acrimony. The applicant rarely accepted correction. As an example, we reproduce a portion of the transcript during the cross-examination of Mr Xydias:

ACCUSED: Ah, Mr Xydias, I'm just going to ask you one last time about this, this, ah, shedding in photograph 25 in terms - I'm not talking about what you think a fireman would do or anything like that. In terms of the objective, physical inherent characteristics of that fire scene and given that you have attended that fire scene the next day after it's been disturbed, I'm going to suggest to you that you couldn't possibly determine yourself whether or not somebody say, bent back one of the panels of the sheeting and gained access and bent back - or whether or not there was already one of the small panels bent. You've got no way, yourself, of determining that.

HIS HONOUR: Just before that's answered, when you say 'one of the panels is bent back' do you mean pre-existing the fire, that is, how it was when Mr Tanner was - or - I've just forgotten his name. Mr Schache was running the business that there was a hole in the back of the - what are you saying, or are you just saying that - - -

ACCUSED: It doesn't matter.

HIS HONOUR: - - - whoever - well it does matter. You didn't ask Mr Schache if there was a hole in his back wall.

ACCUSED: Your Honour, well I wouldn't have thought that Mr Xydias would - but it really doesn't - - -

HIS HONOUR: So you're really just saying - - -

ACCUSED: - - - matter because part of the question - - -

HIS HONOUR: - - - to Mr Xydias that in terms of the fire scene that's there he can't say, except for what he's told us about the fire people would have told him if there was a forced entry, he can't say from his own observations that the person didn't pull back some of the sheeting in the course of the - - -

ACCUSED: Your Honour - - -

HIS HONOUR: - - - fire lighting?

ACCUSED: I think the question was clear. I will repeat the question but in terms of Your Honour whether or not, you know, there's a gamp in the sheeting or whether or not somebody can come along and just pull the sheeting back and stick something through and it bends back or something, how exactly really isn't the point. The fact - and I'll talk about this clear in the question, so - - -

HIS HONOUR: Well there was some problems with it that I've endeavoured to sort out.

ACCUSED: No I don't think there are problems.

HIS HONOUR: So now that we've done that what you're asking is - - -

ACCUSED: I can put the question again if I need to.

HIS HONOUR: Well I think you've put it a number of times. So subject to the - - -

ACCUSED: Well no that was a different question.

HIS HONOUR: - - - what's being suggested to you that it's the person who lit the fire came along and pulled back some of those sheets. That's what you're really asking.

ACCUSED: Your Honour, I - - -

HIS HONOUR: He can't say that didn't happen.

ACCUSED: Your Honour, yeah but - I mean I - the way I see it, I'll ask the question again the same way. I, I don't see the point of arguing of, um, whether or not it was there or bent back or whatever. It really isn't the point. The point is that there can be access but I'll ask the question again if I may.

HIS HONOUR: Mr Davies, sometimes you raise and say Browne v Dunn and I say it's got nothing to do with it. But you didn't - if you're suggesting that there was some gap in this before the fire was lit then that's a proposition that should be put to the man who owned the building. 'Did you have a hole in your wall?'

ACCUSED: Well it's not a hole.

HIS HONOUR: But if you are limiting it to 'Look, you can't say that the person who lit the fire didn't come along and pull back one of the sheets' that's fine.

ACCUSED: Well it really - Your Honour, can I explain, I'm not talking about a big hole that's cut in - - -

HIS HONOUR: I know that.

ACCUSED: It, it, it's here nor there because whether or not there's gaps in the sheeting or whether or not Mr Schache would notice or whether or not that might have happened after Mr Schache left the business and prior to the fire or whether the person pulled back one of the sheetings - - -

HIS HONOUR: Or someone else came and did it before the person came - - -

ACCUSED: Your Honour, I don't appreciate or - - -

HIS HONOUR: - - - and lit the fire or fire - - -

ACCUSED: - - - that, the tone of that comment. All I'm saying it doesn't matter - - -

HIS HONOUR: Don't - Mr Davies, you just have to be clear about it.

ACCUSED: - - - to the question. It obviously doesn't matter and this is just a time wasting, pointless argument about something that doesn't matter at all to the question, to try and make some difficulty that really ought not to exist with it, Your Honour.

HIS HONOUR: Mr Davies, you can only ask questions that are legitimately constructed and when they're not, there'll be times that you'll be asked, with reason to you that you're representing yourself. So I'm just clearing it up so - - -

ACCUSED: Well there's nothing wrong with the question.

HIS HONOUR: - - - if you're talking about this. So if you want to waste time by arguing, then do so but if you want to put the question in terms that this witness doesn't know whether - can't say that there wasn't pulling back of some of that metal other than what he says about the firefighters doing that they did.

ACCUSED: Your Honour, can I just - - -

HIS HONOUR: Is that - that's essentially it, as I understand it.

ACCUSED: Your Honour, I'll put the question in my words but it's not even a Browne v Dunn matter. I'm not asking Mr Xydias whether there was a hole.

HIS HONOUR: Well the funny thing is that I know that and you don't, because that's my job.

ACCUSED: Your Honour - Your Honour - - -

HIS HONOUR: So just ask the question.

559 In these circumstances, a judge's obligation to accord fairness to both prosecution and defence, while maintaining efficient control of the proceedings, requires extraordinary deftness and commitment. In our view, his Honour could have intervened somewhat less often and trusted the applicant to stay on target more. On the other hand, we doubt whether the outcome of that approach in the circumstances would have been conducive to the proper conduct of the trial. That is not evidence of actual bias, however, and further, the fair minded lay observer would not reasonably apprehend from this interventionist approach, having viewed the entire proceedings, that his Honour might not bring an impartial mind to the case. In the exchange set out above, we consider that it was reasonable for his Honour to attempt to clarify the question put by the applicant in order to determine whether it should properly have been put to an earlier witness. If the applicant had been prepared to listen to the judge's concerns and answer them responsively, the matter could have been resolved very quickly.

560 In our view, the judge was acutely aware of the need to maintain momentum in the jury trial. This was not simply for the sake of expediency. Unnecessary or prolonged interruptions to the evidence can lead to jurors losing the threads of evidence being presented to them or worse, becoming disillusioned with the trial process and the vital role they play in it.

561 Whilst we have tentatively concluded that his Honour could have intervened a little less, in our view, the level of his Honour's intervention was nowhere near the level required to constitute a 'departure from the due and orderly processes of trial as to involve a miscarriage of justice'.[131] As it is, the applicant does not rely on this level of intervention as a separate ground, but as evidence of bias, either actual or apprehended. In our view, it is no more than evidence of his Honour wishing to deal with the trial as efficiently as practicable.

562 As to the discussions which have resulted in the applicant contending that his Honour accused him of lying in front of the jury, in our view, his Honour was entitled to question the applicant in the manner that he did.

563 Regarding Part 4 ('Adverse findings and allegations against the accused - including the health issue'), we have dealt with the applicant's unrepresented status under ground 8 of these reasons. His Honour was entitled to find that the applicant, by his conduct, chose to be unrepresented. The applicant's asserted ill health has also been considered under ground 8. At no stage in the two years and eight months of pre-verdict litigation did the applicant call any medical witness to provide evidence as to his complaints. His Honour was entitled to be critical of the applicant's continued applications for adjournment and assertions of illness in the absence of such evidence.

564 In Part 5 ('Disparage a defence to the jury or withdraw a defence and some further disparaging comments'), the applicant gathered together a disparate collection of comments by the trial judge which, he submitted, disparaged him before the jury. An examination of the relevant portions of transcript demonstrates that most of these remarks were in the absence of the jury and in any event, were, in the overall context of the trial, relatively innocuous. The judge's remark that he felt 'incandescent rage' was made in the absence of the jury and in response to a perception by the judge that the applicant had accused him of 'dirty tactics'. We shall set out the transcript of most of this exchange. It commenced in the presence of the jury:

HIS HONOUR: Mr Davies, that was just a repeated - it's déjà vu. The prosecutor is not intervening but I will in respect of ensuring that you don't ask the police officer whether he reckons he's got a good case.

ACCUSED: That's not what I'm asking him, Your Honour. What I - in that case, I want to make a legal application about that, Your Honour, because I, I just want to clarify - - -

HIS HONOUR: We'll do that in the gap that we're coming towards when we have a break.

ACCUSED: Well that - - -

HIS HONOUR: So move on to the next proposition, Mr Davies.

ACCUSED: Well, Your Honour, I think that this really is, is very, very unfair.

HIS HONOUR: All right. Mr Davies - - -

ACCUSED: Um, and - - -

HIS HONOUR: - - - I can't make it any stronger to you, that it's an illegitimate question to ask the police officer their opinion about the case.

ACCUSED: I'm not asking his opinion - - -

HIS HONOUR: It's ultimately for the jury. Don't interrupt.

ACCUSED: No, no - - -

HIS HONOUR: The gist of what you're saying is that all you've got is this and this, and that's it, that's all you've got. That's not - it's for the jury to see whether there's any more than that and you can address them.

ACCUSED: No, no - - -

HIS HONOUR: That question is really simply that.

ACCUSED: No, no, I - - -

HIS HONOUR: You don't put your final address to the police officer and say, there, gotcha. Now come on.

ACCUSED: Excuse - what was that? I didn't - - -

HIS HONOUR: I said 'Come on'.

ACCUSED: No, no that other comment.

HIS HONOUR: Please, Mr Davies, just move on.

ACCUSED: It just seems to me - - -

HIS HONOUR: You don't say - you don't put your final address to the police officer and say 'Gotcha'. That's not done and now move on please.

ACCUSED: Well, Your Honour, it's just that the - Your Honour has said that about the, ah, the phrasing of it to suggest I'm asking him his opinion or - that's exactly not what - I may have to rephrase it or change the question. It's a question of fact.

HIS HONOUR: Well do that. If you think that want to - I mean I'm not going to dwell on this any further, Mr Davies. The protection is for you.

ACCUSED: No, no, it's not. Your Honour, I, I can see what's happening here and, um, it's, it's just to me, it's pretty much a dirty tactic that's being put on me about this matter.

HIS HONOUR: I'm not going to tolerate that.

ACCUSED: Not by you, Your Honour, I'm not saying by you.

HIS HONOUR: I'm not going to tolerate 'dirty tactic', Mr Davies.

ACCUSED: Well I think it is and I, I'm going to have make a legal application - - -

HIS HONOUR: So Mr Davies - - -

ACCUSED: - - - about this.

HIS HONOUR: - - - ask your question, which I tell you is not only not a legitimate question but unwise. But if you think there's some advantage to you from it and you sense 'dirty tactic' ask the questions. See what the policeman's answer is.

ACCUSED: Well no Your Honour - - -

HIS HONOUR: But the proposition that you put in your question the implication's disrespectful and we'll move on.

ACCUSED: It's not - no it's not disrespectful for me to raise something.

HIS HONOUR: Just put the question. Mr Davies, I can't protect you anymore.

ACCUSED: You're not protecting me at all.

HIS HONOUR: Just ask the witness the question that you want him to answer.

ACCUSED: No Your Honour, I'm just - - -

HIS HONOUR: Please do it.

ACCUSED: - - - asking to make a legal application on this matter because I'm being done over here by an unfairness - - -

HIS HONOUR: Mr Davies, ask the question you wish to ask and we'll have a break in a short while. Just ask the question.

ACCUSED: But the problem is, Your Honour, I need to put the legal application first.

HIS HONOUR: Ladies and gentlemen, Mr Davies is going to get a fair trial, come what may. So we'll have a break now and we'll ensure that he has time for his legal application.

565 The jury left the court at 3.03 pm and the exchange continued:

HIS HONOUR: Mr Davies, I'll give you a moment. Just consider your position. I expect an apology in respect of 'dirty tactic' and if you don't do that, if you say 'No I'll persist with that' then matters relating to contempt of court have to be considered. The implication within that was beyond the pale. Now, Mr Davies, take a break.

ACCUSED: No it isn't. Your Honour - - -

566 After a short adjournment, there was further discussion about the wisdom of asking a policeman whether he thinks he has a good case. The exchange about 'dirty tactics' continued in the absence of the jury:

HIS HONOUR: Then I went beyond that and said I'm going to stop it until the point that you told me I was embarking upon dirty tactics.

ACCUSED: I didn't - wasn't talking about you, I was talking about Mr Wallace and what was happening.

HIS HONOUR: It was so plainly - it so plainly was directed at me, Mr Davies.

ACCUSED: It is not directed at you. You might just feel it.

HIS HONOUR: If you want to apologise for the - the effect of it and say that 'I didn't mean it to be directed at' - at me, then that might alleviate the incandescent rage that I have at your behaviour in saying that in front of the jury.

ACCUSED: Your Honour - - -

HIS HONOUR: It might.

ACCUSED: Your Honour, no, I'm sorry, I can't - - -

HIS HONOUR: Is that what you're saying?

ACCUSED: What I'm saying is - - -

HIS HONOUR: That when you use 'dirty tactics' when I was talking, you in fact didn't mean that to be directed to me?

ACCUSED: Of course I didn't mean it to be directed against you, Your Honour.

HIS HONOUR: Mr Davies, I'm not - - -

ACCUSED: Because you're not even the person - - -

HIS HONOUR: I'm not going to dwell on it. I'll put it to one side now that you've said that. I'll tell the jury that you've clarified things and it's sorted out and we're on an even keel, like I've protected you on other occasions.

ACCUSED: No, I - I - Your Honour, no.

HIS HONOUR: And I'll continue to do that.

ACCUSED: Excuse me.

HIS HONOUR: Let's just keep going with the witness.

ACCUSED: You're trying to talk over me, it seems, Your Honour. I haven't even put the second - but, Your Honour - and to say to the jury you - you're always commenting, though, to the jury about what the legal discussions are, 'Oh, we're back on an even keel'. Again, Your Honour, it's - - -

HIS HONOUR: It's necessary. They're just to settle things down, Mr Davies.

ACCUSED: No, it's not necessary at all, 'cause, Your Honour, it makes a - what is essentially an untrue statement as well as if to say, well, the comment - - -

HIS HONOUR: Mr Davies - - -

ACCUSED: That they should think about the comment and that it was directed at Your Honour clearly.

HIS HONOUR: Mr Davies, the jury have - I've got no doubt, a firm view which I want to disabuse them of, that you had alleged that I have embarked on dirty tactics. I want that to be disabused.

ACCUSED: Well - - -

HIS HONOUR: Even if you think it's not wise, I'm going to do it. Now Mr Davies - - -

ACCUSED: No, well hang on, but you're doing the opposite.

HIS HONOUR: I'm not listening to any - - -

ACCUSED: You never listen to anything.

HIS HONOUR: I do and they are repetitive - - -

ACCUSED: I'm not repeating anything.

HIS HONOUR: Mr Davies, what's your legal submission that you had the jury put outside? We've sorted out the question. What else could it be?

ACCUSED: It, it hasn't been sorted out and it seems to me, Your Honour, that you're being combative again with me again this afternoon. It's just slowing things down.

HIS HONOUR: I'm not going to put up with - - -

ACCUSED: The Crown - - -

HIS HONOUR: Mr Davies, I'm not putting up with commentary about things.

ACCUSED: I've got the right - excuse me, hang on - - -

HIS HONOUR: Now Mr Davies - - -

ACCUSED: I've got the right in law to raise these concerns.

HIS HONOUR: I've said that you can ask the question that you want to and if you do it, it'll be on your head, but if you put it in a more considered way, the way that's been discussed here, the matter will move on which it should, right now.

ACCUSED: Your Honour, the second part of the concern - all, all I'm explaining - the second part of the concern though, is when the Crown has objected to the question, um and there's a third thing I need to clarify as well. Ah, they have used and I don't know if I'm quoting exactly, I'm quoting from memory of course. They've said well, ah, he's asking him about, when I said Mr Heinen, Mr McGibbony, and then he said, and there are other witnesses and that compounds it, Your Honour - - -

HIS HONOUR: That gave evidence about - - -

ACCUSED: - - - because in my view - well hang on. Well he didn't say that all.

HIS HONOUR: Mr Davies.

ACCUSED: Because there are other surveillance operatives.

HIS HONOUR: This is now asking me to go behind the law that I made that the prosecutor's approach to the objection was cautious and appropriate, I'm not going to revisit it.

ACCUSED: I'm not asking that at all - - -

HIS HONOUR: Mr Davies, please don't - - -

ACCUSED: You keep trying to paraphrase me all the time and then deal with that.

HIS HONOUR: Mr Davies, the third point that you have is?

ACCUSED: No, hang on, Your Honour. Hang on, Your Honour, because you're, you're - you keep trying to paraphrase me. So what you're saying or doing is this.

HIS HONOUR: All right.

ACCUSED: When I'm not. What I'm saying is, I'm explaining the point - - -

HIS HONOUR: Mr Davies - - -

ACCUSED: Will you stop trying to talk over me?

HIS HONOUR: No, I'm just putting to an end to this - - -

ACCUSED: Well you're not - - -

HIS HONOUR: - - - right now.

ACCUSED: Well you haven't heard me - - -

HIS HONOUR: Mr Davies, I am putting an end. We're going to have the jury back for another half an hour of evidence. You can ask questions and then, Mr Davies, we'll re-raise this but I think it's necessary, regrettable, but we need to iron things out tomorrow. Is the prosecution available tomorrow?

ACCUSED: No, no, Your Honour - - -

MR PROSECUTOR: Yes.

HIS HONOUR: All right, thank you.

ACCUSED: No, I'm sorry, that's not fair. You're - it seems to be you're trying to victimise me because you're not listening - - -

HIS HONOUR: We're not holding things up while you have these - we're going on to the next thing.

ACCUSED: It's not a question of holding things up. I'm sorry - - -

HIS HONOUR: Mr Davies, don't do this.

ACCUSED: You're being completely unreasonable.

HIS HONOUR: Please, Mr Davies.

ACCUSED: This is a tactic it seems, Your Honour.

HIS HONOUR: Mr Davies - - -

ACCUSED: Because every time I raise something, you cut me off - - -

HIS HONOUR: - - - you said before that you weren't addressing me about tactics.

ACCUSED: I haven't finished. Not on that occasion, but on this occasion I'm being cut off and shut down, Your Honour and I've got a right to raise these concerns without being - having this, this argument put back at me. Every time I speak I'm cut off and there's an argument put back on me. It just seems to me all these things are just - they're just making the case slower and they're making my job more difficult. I haven't finished as well, Your Honour, because it just seems to me that the - my view is and my interpretation as well, is that when the Crown say and I'm not talking about the objection to the question, but when the Crown have said, well there's other surveillance people, um, surveillance being mentioned, it's created this view, Your Honour, as if that somehow, Your Honour, by, by saying in conjunction with Mr Wallace, that somehow I am I alleged to be closer to the bakery than the evidence is either by Mr Wallace saying that or there's something they're not being told and somehow I am allegedly closer to the bakery than the evidence is. And that's what, that's what I need to address. In terms of this question, Your Honour, I have to get this question formulated and properly down pat and that, that - it just seems to me...

567 We have read the transcript closely. The applicant's assertion that he was accusing the Crown of 'dirty tactics' in relation to the witness Wallace is, we consider, highly unlikely. The remark was made by the applicant in the presence of the jury, directed, on the face of it, towards his Honour and was offensive. In trying to protect the applicant from receiving an answer which may well have been inimical to the defence case, his Honour reasonably believed he had been accused, in the presence of the jury, of indulging in 'dirty tactics'. After having expressed frustration at the applicant, the applicant's response was to assert that he was being 'done over by an unfairness', again expressed in the presence of the jury. In our view, this exchange demonstrates the difficulties confronted by the judge and his expressions of frustration at the applicant. We consider that nothing in this exchange evidences either actual or apprehended bias.

568 In Part 6, the applicant contended that in threatening 'to lay charges for contempt against the unrepresented accused for exercising right to bring complaints, raise concerns and criticise the Judge', his Honour demonstrated bias. The full relevant passage of transcript reads:

ACCUSED: Yeah, Your Honour, I need to raise something else as well, because I need some assistance, which unfortunately um is in no way coming, but in terms of what I've said before - - -

HIS HONOUR: Well it takes me aback that you're not well enough to deal with a matter that you bring on and - - -

ACCUSED: No, that's no fair, Your Honour.

HIS HONOUR: - - - as soon as we're heading away at quarter past four - - -

ACCUSED: These comments aren't helpful or fair.

HIS HONOUR: - - - spark up and start to raise other matters. Now, what are they, Mr Davies? Of course I'll try and help you but you don't help yourself by this process.

ACCUSED: I just want to - well no, Your Honour, I think a lot of - these - these comments are very unfair. The - the - - -

HIS HONOUR: Mr Davies, I'm not going to have you suggest that I'm making comments anything other than completely justified. Your behaviour today was outrageous.

ACCUSED: No, it wasn't. It was your behaviour that was outrageous.

HIS HONOUR: Now, Mr Davies, what do you want help with?

ACCUSED: It was deceitful. Um Your Honour, in terms of the first thing - - -

HIS HONOUR: Mr Davies.

ACCUSED: Well you just keep trying to start arguments and blame me about things and - - -

HIS HONOUR: Just pause. Did you suggest then that I was deceitful?

ACCUSED: Yeah, I think so, to the jury and to me about that receipt matter, that was unfair.

HIS HONOUR: Mr Davies, that sort of disrespect is just simply intolerable.

ACCUSED: Well don't accuse me of something then.

HIS HONOUR: If you wish to apologise, we'll just move on.

ACCUSED: I think you need to apologise.

HIS HONOUR: If you don't, then I have to contemplate the contempt proceedings. I'll have to get to that.

ACCUSED: Your Honour - - -

HIS HONOUR: Do you understand that?

ACCUSED: I do, Your Honour.

HIS HONOUR: You can expunge it straightforwardly by simply apologising and saying at late in the day, in the heat of the moment, maybe you went too far in saying deceitful.

ACCUSED: Um Your Honour, I'd - I'd need to take legal advice.

HIS HONOUR: You're not getting any legal advice, Mr Davies on this topic.

ACCUSED: Your Honour, the problem is you keep accusing me of these things.

HIS HONOUR: But you have delayed this case in respect of that.

ACCUSED: No, Your Honour.

HIS HONOUR: Think about it overnight. I'll let you have overnight.

ACCUSED: Your Honour, I - - -

HIS HONOUR: All right, so what do you want help with?

569 There was nothing unfair in what his Honour said or did in these passage. It is not evidence of bias, actual or apprehended.

570 In Part 6.2 ('Threats to send witnesses home as punishment'), the applicant identified various occasions where, when the applicant wished to either pursue a legal issue or respond to one that had arisen, the judge had indicated that if he did not proceed with cross-examination, the witness would be 'sent home'. It is clear that on these occasions during the trial, the judge threatened to conclude the witnesses' cross-examination. These witnesses were Sergeant McGibbony (7 September 2016) and Sergeant Barnes (25 October 2016). An examination of the transcripts surrounding these statements by his Honour demonstrates that they were precipitated by the repeated refusal by the applicant to refrain from making comments during cross-examination (McGibbony) and the applicant's persistent argumentative commentary (Barnes). In the lead up to Sergeant Barnes' statement, contained in over two pages of transcript, the applicant was directed to 'move on' with his questioning twice, 'just next question, I'm insisting you ask the next question', 'if you don't have any more questions, that's a matter for you,' 'have you for a question of Mr Barnes?' and finally, 'just put another question or Mr Barnes' evidence will conclude'. Sergeant Barnes' cross-examination continued for another 50 pages of transcript.

571 In the case of witnesses Jelic and Wallace, the judge circumscribed the applicant's cross-examination, in effect placing time limits on it. Ms Jelic was a scientist/forensic officer providing opinion evidence of DNA analysis and interpretation. Detective Senior Constable Wallace was a police witness and the informant. Jelic was cross-examined over two and a half days.[132] Wallace was cross-examined over three days.[133] There were frequent interruptions for various types of legal argument. In our view, given the prolix nature of the cross-examination, and its circular and argumentative nature, it was reasonable for his Honour to place time limits upon it. This does not evidence actual or apprehended bias. It demonstrates no more than that his Honour was committed to conducting an efficient and fair trial.

572 In a pre-trial Basha inquiry, his Honour did withdraw the applicant's leave to cross-examine the witness Labas. This was just after the applicant had required a copy of the transcript 'to get himself back on track'. His Honour advised him that 'we don't have it'. The applicant replied:

And why is that associate so smiling and smug about it? Because I just feel I'm being victimised.

573 In our view, his Honour was justified in withdrawing the applicant's entitlement to cross-examine Ms Labas at this pre-trial stage, given the circumstances. His Honour presumably exercised his power under s 26 of the Evidence Act to make an order 'as considered just' in relation to the 'behaviour of any person in connection with the questioning of witnesses'. An examination of the applicant's subsequent trial cross-examination of Ms Labas demonstrates that the applicant was not disadvantaged in any way in his tight, neat cross-examination.

574 We consider that there is no evidence of bias, either actual or apprehended, to be found in Part 6 of the applicant's submissions.

575 We have dealt with Part 7 ('Frequent interruptions and over speaking the unrepresented accused at all stages of the trial and refusing to hear the defence on some issues') above.

576 In Part 8 ('Failure to assist'), the applicant contends that the circumstances surrounding the aborted attempt to engage solicitors immediately before the trial, together with his Honour's grant of leave to the VLA appointed barrister, demonstrated bias. We have dealt with the circumstances that attended the applicant's failure to secure representation under ground 8 of these reasons. The suggestion that it demonstrates bias, actual or apprehended, is unfounded. In our view, his Honour did all he reasonably could to ensure that the applicant had reasonable resources and equipment in order to facilitate his defence. Further, the judge, on many occasions, endeavoured to assist the applicant in fashioning cross-examination or researching legal questions. For example, his Honour:

(a) offered to provide or provided legal authorities, including copies of legislation, cases and legal texts, to the applicant at various points of the proceedings;[134]

(b) explained the operation of relevant legislative provisions and common law legal principles to the applicant;[135]

(c) explained trial process and procedure;[136] and

(d) assisted the applicant in cross-examining witnesses.[137]

577 In Part 9, the applicant contended that 'the Judge created an atmosphere in the Jury trial that the trial had an approximate expected length and that the accused was causing delays and making the Jury stay longer - and thus painting the accused as acting as the Jury's keeper - to create animosity and dislike of the accused and dash his standing'.

578 In our view, the cause of delay and the extended duration of the jury trial would have been abundantly clear to the jury without anything said by the trial judge. His Honour was entitled to keep the jury informed as to how the timing of the jury trial was unfolding. We have seen nothing in any of his remarks on this issue that could possibly give rise to an apprehension of bias or to be evidence of actual bias.

579 In Part 10 ('Remaining issues'), the applicant has suggested that the transcript may be doctored, the judge had disclosed information adverse to the applicant to the media, used exaggerated body language to undermine cross-examination and appeared 'festive' on one occasion. These assertions have not been made out.

580 In relation to the 'Tone and Tenor' submissions, we have considered all transcript relating to these submissions, and as we have stated, have listened to various impugned portions of the audio. As we have said, we are prepared to accept that on many occasions, his Honour's voice was perceptibly louder and sharper than his normal measured volume and tone. In our view, this was often when the applicant was talking over his Honour, or when the applicant had made some kind of insulting or offensive remark. In our view, the audio 'tone and tenor' that we have listened to does not advance this ground.

581 For the foregoing reasons, the applicant has not established that the trial judge was motivated by actual bias. Further, a fair minded lay observer, having sat through the pre-trial and trial phases of the applicant's hearing, would not reasonably apprehend that the judge might not bring an impartial mind to the discharge of his duties in the case.

Ground 12 - Unlawful or unreasonable taking of a majority verdict

582 Under ground 12, the applicant has contended that the trial miscarried due to the unlawful taking of a majority verdict by the judge (in respect of charges 1 and 2) for four reasons:

(a) The judge took that verdict after there had been insufficient time for the jury to deliberate.

(b) The judge did not accept that there had been an 'impasse' as a majority verdict and he then sent the jury out to deliberate again.

(c) The judge made comments during the trial and during deliberations concerning the time taken, and delays, which placed pressure on the jury to hasten its deliberations.

(d) The judge made comments 'seemingly hinting to the jury', with judicial authority, at the preferred verdict (of guilty).

583 The first two of those matters, relied on by the applicant, are concerned with directions given by the judge to the jury during its deliberations, and the circumstances in which the judge accepted a majority verdict in respect of each of charges 1 and 2.

584 The judge concluded his charge to the jury on 22 November, and the jury retired to consider its verdict at 11.57 am. It completed its deliberations for that day at 3.57 pm. On the following day, 23 November, the jury deliberated until 4.02 pm. It resumed its deliberations on the following day, 24 November. At 12.40 pm, the judge convened court with the prosecutor and the applicant, as he had received a note from the jury, that contained the following question:

Can we please have directions on how to proceed in making a final decision? We cannot come to a unanimous decision. Including circumstantial evidence and rationale [sic] and reasonable conclusions.

585 After the judge discussed with the prosecutor and the applicant the appropriate response to that question, the jury entered the court at 12.54 pm. The judge gave to the jury the perseverance direction specified by the High Court in R v Black,[138] and the judge reiterated to the jury the principles that apply to the drawing of inferences in a criminal trial. The jury then resumed its deliberations, which it completed for that day at 4.12 pm.

586 On the following day 25 November, the judge convened court with the prosecutor and the applicant at 12.50 pm. His Honour discussed with the parties what course he should adopt with the jury, and, in particular, whether he should inquire of the jury as to whether it was making progress towards a unanimous decision. The judge decided that if the jury responded to that question in the negative, he would then direct the jury that he would accept a majority verdict on any of the charges.

587 The jury then entered the court at 2.25 pm. His Honour asked the jury whether it was making progress to a unanimous decision or whether it needed further time. The jury retired for five minutes, and then returned and the following exchange occurred:

His Honour: Thank you ladies and gentlemen. Mr Foreman, do you need more time to just persevere or do you wish to say impasse and ...

Foreperson: Yes your Honour we've decided it's an impasse.

His Honour: Alright.

Foreperson: As majority.

588 The judge then told the jury that he was satisfied that it should be allowed to give a majority verdict if it could not reach a unanimous verdict. The judge gave further directions to the jury in the form prescribed by this Court in R v Muto & Eastey,[139] following which the jury retired to further consider its verdict at 2.39 pm. At 3.04 pm on the same day, the judge returned to the bench, and stated that he understood from the jury that it had reached its verdicts. The jury entered the court three minutes later. The jury returned majority verdicts of guilty to charges 1 and 2, and unanimous verdicts of guilty to charges 3, 4 and 5.

589 The first point, made by the applicant under ground 12, is that the judge erred in failing to tell the jury that 'a jury can be dismissed if it cannot reach a majority verdict' and/or that 'a jury can be dismissed after failing to reach a unanimous verdict'. The applicant submitted that in the absence of such a direction, the jury might have been led to believe that it may never be dismissed unless it came to a verdict one way or another.

590 That submission is based on an incorrect premise. In delivering the 'Black' direction on 24 November 2016, the judge said the following to the jury:

... although I do have the power to dismiss you without a verdict having been reached, I should only do it if I am satisfied that you will not be able to agree on a verdict even if given more time for discussion, and I am not satisfied that that is the case yet, that I would dismiss you without verdict.

591 In accordance with the direction prescribed by the High Court in Black, the judge then urged the jury to endeavour to resolve their differences by listening carefully to each other and keeping an open mind to the views of each other juror. His Honour then concluded:

That said, you must always reach your own decision according to your own view of the evidence. If, after calmly considering the evidence and listening to the opinions of other jurors you cannot honestly agree with their conclusions, then you should not change your mind simply to reach a unanimous verdict. Indeed you must not agree to a verdict if you do not honestly and genuinely think that it is the correct one. To do that would be a breach of your duty to the court.

592 When, on the following day (25 November) the jury informed the judge that it had reached an impasse, the judge gave a similar direction to the jury in permitting it to give a majority verdict. The judge commenced his directions, in that respect, by stating to the jury the following:

Now, what I propose to do in light of that is to make it clear to you of course, you having told me that you are unable to reach a unanimous verdict, that although I have the power to dismiss you without a verdict having been reached, I should only do this if I am satisfied you will not be able to reach or agree on a verdict if you're given more time for discussion. So I can dismiss you without verdict. But I am not yet satisfied that that's the course to take. However I am satisfied you should be allowed to give a majority verdict if you cannot reach a unanimous verdict.

593 Again, after urging the jury to return to try to resolve their differences by listening carefully to each other, the judge repeated that a juror must not change his or her mind simply to reach a unanimous verdict or a majority verdict of 11 out of 12. His Honour stated:

Indeed you must not agree to a verdict if it's not one you honestly and genuinely think is the correct one. To do that would be a breach of your duty.

594 In that way, the judge, in giving the Black direction on 24 November, and in permitting the jury to return a majority verdict if it could not reach a unanimous verdict on a particular charge, on 25 November, specifically and clearly told the jury, first, that he had power to dismiss the jury without verdict if it was unable to reach a verdict, and, secondly, that no juror should alter his or her opinion simply in order to be able to achieve a unanimous verdict or (on 25 November) a verdict of a majority of 11 out of the 12 jurors. Thus, we do not accept the first point made by the applicant under ground 12.

595 The second point, relied on by the applicant under ground 12, concerns the exchange between the judge and the foreperson at 2.33 pm on 25 November when the foreperson told the jury that 'we've decided it's an impasse ... as majority'. The applicant submitted that, by that interchange, the foreperson told his Honour that the jury had reached an impasse and that it could not reach a majority verdict. The applicant submitted that, subsequently, after the judge gave further directions to the jury, and sent it to the jury room to resume its deliberations at 2.39 pm, the jury returned its verdict at 3.04pm when it had not taken sufficient time for deliberation pursuant to s 46(3) of the Juries Act 2000 ('Juries Act'). The applicant submitted that, in the overall circumstances, the jury did not take a reasonable time to 'go from a majority impasse or deadlock to verdict in the minutes available'. He submitted that it could not be excluded that a juror simply 'caved in' in order to bring the deliberation process of the jury to a conclusion.

596 We do not accept that submission. First, in the circumstances of the case, it is not clear that at 2.33 pm on 25 November, when the foreperson told the judge 'we've decided it's an impasse ... as majority', the foreperson intended then to convey that the jury was unable to reach a verdict as a majority as defined by the Juries Act. At that stage, the judge had not told the jury that it could deliver a majority verdict on any of the charges. Rather, when the judge spoke to the jury eight minutes earlier, at 2.25 pm, he commenced by stating:

... the question really is following my directions to you and in light of your question, we cannot come to a unanimous decision, the proposition is: are you making progress? Do you need further time? Is there progress that's being made and you think can be made towards a unanimous decision if you're just given more time? Or is it an impasse and no progress is being made and it's become clear that you're never going to reach a unanimous verdict.

597 The judge then asked the jury to discuss that issue between themselves and, when they returned to court, to advise whether 'we're making progress or it's an impasse'.

598 It is significant that in the passage just quoted, the judge three times directed the jury's mind as to whether it was making progress toward 'a unanimous decision' or whether it had reached an impasse in that respect. The judge did not mention the prospect that the jury might be able to reach a majority verdict. It was in that context that, just eight minutes later, the jury returned to court and the exchange occurred between the judge and the foreperson, in which the foreperson stated that the jury had decided 'it's an impasse ... as majority'. Thus, in that context, we do not accept that the foreperson, and the jury, intended to convey to the judge that there was an impasse in reaching a majority decision.

599 Further, the submission made by the applicant involves a misinterpretation of s 46 of the Juries Act. At the time of the trial, s 46 provided that if a jury had been deliberating for at least six hours and was unable to reach a verdict or had not reached a unanimous verdict, the court may discharge the jury or take a majority verdict. Section 46(3) provided:

A court must refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial.

600 As mentioned, the applicant has submitted that the jury did not deliberate for a sufficient further period, after being permitted to reach a majority verdict, before reaching its verdicts. However, s 46(3) is not directed to that period of time. Rather, it is directed to the period of time that must elapse before a judge permits a jury to return a majority verdict, instead of a unanimous verdict. At the time at which the judge so permitted the jury to do so, the jury had deliberated for some 14 hours without reaching a unanimous verdict. In those circumstances, the time taken for deliberation by the jury ― up until 2.33 pm on 25 November 2016 ― was more than reasonable, having regard to the nature and complexity of the trial.

601 The third and fourth points, relied on by the applicant under ground 12, are that the trial miscarried due to the judge's comments during the trial and during deliberations concerning the time that was taken and due to comments apparently hinting to the jury with judicial authority that the preferred verdict was one of guilty.

602 In support of those two points, the applicant referred to a number of matters relating to the directions given by the judge to the jury during their deliberation.

603 The first point made by the applicant was that the judge's directions appeared to convey an instruction that was 'weighted towards the jury reaching a verdict unless otherwise directed'. The two passages, relied on by the applicant, were extracts from the two 'Black' directions given by the judge to the jury. Those directions replicated the form of direction recommended by the High Court in Black. They did not, and do not, convey an instruction to the jury that it should reach a verdict. Rather, as already discussed, the judge, in accordance with the direction prescribed in Black, made it plain to the jury that no juror should compromise his or her honest conclusion as to the correct verdict, in order to achieve either a unanimous verdict or a majority verdict (as the case may be).

604 In that context, the applicant has also taken issue with the instruction given by the judge that the jury should further examine the evidence when he directed it to continue its deliberations. That instruction was unimpeachable. It is fundamental that a jury's verdict must be based on all the evidence. The passages, relied on by the applicant, in this respect, are a direct replication of the standard Black direction.

605 The next point, relied on by the applicant, is that the judge should not have permitted the jury to return a majority verdict, but, rather, he should have discharged the jury when it was unable to reach a unanimous verdict.

606 We do not consider that there was any error in the judge permitting the jury to reach a majority verdict. As discussed, at the time at which the judge permitted the jury to return a majority verdict (if it could not reach a unanimous verdict), the jury had been deliberating for a period of 14 hours. There was no reason why the jury should not, at that time, be permitted to return a majority verdict, if it was unable to reach a unanimous verdict, on any particular charge. The judge had power, under s 46(3) of the Juries Act to permit the jury to return such a verdict. The applicant has not pointed to any basis upon which the judge's discretion was erroneous.

607 The fourth point, relied on by the applicant in support of ground 12, concerns a number of comments made by the judge in the course of the trial, which, the applicant has contended, tended to blame him for the loss of time and delay in the trial.

608 In support of that proposition, the applicant has pointed to a number of passages in the transcript. The first such excerpt was on 29 September 2016. On that date, the applicant resumed cross-examination of Ms Jelic. However, the cross-examination was stalled, first, by an interchange between the applicant and the judge, and then objection by the prosecutor. As a consequence, the witness's evidence was put over until the following Monday. The judge directed the jury to ignore any unpleasantness that might have occurred in the exchanges, and he told the jury that the applicant was entitled to have the evidence assessed. His Honour then noted that the jury had asked 'how we are tracking in respect of the timing of the trial'. The judge told the jury that 'we're a bit behind'. He said that the jury would have to consider that there was a chance that the case would go longer than the estimated completion date. His Honour then stated:

One thing I can't help you with in terms of time is how much time you take to consider the evidence and come to your conclusion. That's entirely a matter for you. So that's a variable I can't factor in.

609 Contrary to the submission made by the applicant, that comment by the judge was not designed, nor did it have the capacity, to put pressure on the jury to expedite its deliberations. Rather, the judge was endeavouring to provide to the jury some estimate as to when the trial might complete. Further, at the completion of his charge, the judge gave directions to the jury concerning the manner in which verdicts would be taken. In doing so, his Honour gave the usual direction that '... how long or short you take in your deliberations is a matter entirely for you'.

610 The applicant, next, has submitted that, throughout the trial, the judge kept apologising to the jury for delay and his Honour thanked the jury for its patience. In our view, there is nothing in the point. It is common, and indeed appropriate, that, as a matter of courtesy, a judge apologise to a jury, and express gratitude for the jury's patience, where the trial is delayed by reason of discussion between the bench and the parties in the absence of the jury, or by other factors, including the illness or unavailability of witnesses or a party. In the instances relied on by the applicant, the judge did no more than express such apology or gratitude to the jury in short and simple terms.

611 The applicant further contended, in this context, that the judge interrupted his cross-examination on a number of occasions in order 'to effectively say hurry up'.

612 In a number of the instances relied on by the applicant in this respect, the judge endeavoured to ensure that the applicant did not entangle the evidence in unnecessary technicalities, and thus lose sight of the point that the applicant was seeking to make in cross-examination. The judge also, on other occasions, endeavoured to ensure that the applicant asked questions, rather than making comments. We have already considered matters such as these in the context of ground 11. However, the matters raised by the applicant, in this respect, do not, in our view, provide any support for the proposition that the trial was conducted in an atmosphere in which the jury felt some pressure to hasten towards its verdicts. Indeed, the lengthy period of time taken by the jury to consider its verdicts demonstrates that the jury itself felt under no such pressure. The fact that the jury continued to deliberate for almost one day, after receiving the Black direction, without achieving a unanimous verdict on all the charges, is further testimony to the fact that any interventions by the judge during the trial did not convey to the jury, in any way, that it should abbreviate its deliberations and hasten to a verdict. We add, for completeness, that none of the above remarks by the judge could reasonably be taken to convey to the jury that it should hasten its verdict, or that it should reach a verdict of guilt.

613 For those reasons, ground 12 of the application does not succeed.

Ground 1 - Substantial miscarriage of justice

614 Having considered and determined each of grounds 2 to 12 of the application for leave to appeal against conviction, it is now convenient to return to ground 1, by which the applicant contends that 'the aggregate of all errors and prejudices ... did result in a miscarriage of justice'.

615 As a consequence of our conclusion, under ground 3, that the evidence of Mr Gelfe, as to the time at which the communication services to Mount Waverley Police Station were interrupted on 20 January 2011, was inadmissible in support of charge 1 on the indictment, it is necessary to decide whether the erroneous admission of Mr Gelfe's evidence has resulted in a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act.

616 The principles, relating to the correct application of s 276(1)(b) of the Criminal Procedure Act, were considered by the High Court in Baini v The Queen,[140] and have since been summarised in this Court.[141] The principles, discussed in Baini, that are applicable in this appeal, include the following:

(1) A miscarriage may occur where the Court of Appeal cannot be satisfied that the error or irregularity, in the trial, did not make a difference to the outcome of the trial.[142]

(2) A Court of Appeal's satisfaction that a finding of guilt, against an appellant, was inevitable, notwithstanding the error or defect in the trial, may lead to the conclusion that there has not been a substantial miscarriage of justice.[143]

(3) In such a case, the question is not whether a guilty verdict was open to the jury. Rather, the essential enquiry is whether such a verdict was inevitable.[144]

(4) Thus, where a respondent to an appeal seeks to establish that the verdict was inevitable, an appellant may successfully meet that point, by demonstrating no more than that, had there been no error, the jury 'may' have entertained a doubt as to his or her guilt.[145]

(5) In considering whether a guilty verdict was inevitable, notwithstanding an error or defect in the trial, the court must act on the written record of the trial, but taking into account the natural limitations that may exist in undertaking such an analysis.[146]

617 The evidence of Mr Gelfe was relevant to the proof by the prosecution of the time at which the fire, that resulted in the interruption of the communication services, occurred. That time coincided, closely, with the time at which, according to the tracking device evidence, the applicant's vehicle was stationary in close proximity to Mount Waverley Police Station in the early hours of 20 January 2011. In those circumstances, the evidence of Mr Gelfe was of some significance in the proof of charge 1, in that it strengthened the prosecution case in a relevant respect.

618 In his charge, the judge told the jury that Mr Gelfe was authorised to speak on behalf of Telstra, and he had access to its business records. He also directed the jury, as a matter of law, that business records can be, and very often are, admitted into evidence although the particular individual, who produces them, has no real knowledge as to their content. He told the jury that it was therefore irrelevant that Mr Gelfe had no personal knowledge when the communication system at Mount Waverley Police Station failed, because that was contained in the Telstra business records. In that way, as the applicant has contended, the jury was (incorrectly) directed that the Telstra records, as referred to in Mr Gelfe's evidence, proved that the communication system with Mount Waverley Police Station failed at 1.35 am.

619 Nevertheless, in the absence of that evidence, the prosecution case against the applicant, in respect of charge 1, was particularly strong. We have already discussed that evidence in our consideration of ground 4. In short, the evidence of Sergeant Postma and Leading Senior Constable O'Sullivan established that the fire was lit between 11.00 am on 19 January and 6.40 am on 20 January 2011. The evidence of the CCTV footage, and the evidence of the tracking device, established that at 12.59 am on 19 January the applicant drove the white Magna from his premises at Yvette Drive, Rowville to Mount Waverley Police Station. The tracking device evidence proved that the applicant had taken a direct route from his home to the police station. That evidence supported the inference that the applicant had driven from his home to the police station, at that early hour in the morning, for a specific purpose. The tracking device evidence further established that the applicant's vehicle remained stationary in close proximity to Mount Waverley Police Station for a period of nine minutes from 1.15 am to 1.24 am, for no apparent reason. The tracking device evidence, and the CCTV footage, established that the applicant departed from that stationary position at 1.24 am, and drove directly to the applicant's home at 1.39 am. That evidence reinforced the inference that the applicant's journey from his home to the police station had been made for a specific purpose, which was completed when he returned to his home.

620 The prosecution case, on charge 1, was further supported by two other pieces of evidence. First, the motive evidence, contained in the YouTube videos, was particularly pertinent to charge 1. The videos demonstrated that the applicant was motivated to wreak revenge on a society that he considered had wronged him. A suburban police station may be considered to be symbolic of society, given its function of upholding its laws. Secondly, and in addition, the coincidence reasoning, relied on by the prosecution, reinforced the circumstantial case on charge 1. The circumstance that, on five separate occasions in a 14 day period, the applicant's vehicle had been demonstrated to be stationary, for a short period of time, at or near the location of five separate fires, and at times consistent with the occurrence of those fires, made it most improbable that his presence, in close proximity to Mount Waverley Police Station, for a period of nine minutes in the early hours of 20 January 2011, at a time during the period in which the fire at the police station occurred, was an innocent coincidence.

621 In those circumstances, in the absence of the evidence of Mr Gelfe, the prosecution case against the applicant on charge 1 was nevertheless particularly strong. We do not consider that the jury, on the state of the evidence, could reasonably have considered that there was a reasonable doubt about the guilt of the applicant on that charge. Accordingly, the erroneous admission of the evidence of Mr Gelfe, in respect of charge 1, did not result in a substantial miscarriage of justice in respect of that charge, or any of the other charges.

Conclusion on application for leave to appeal against conviction

622 On ground 3 we grant leave but dismiss the appeal. We refuse the application for leave to appeal against conviction on all other grounds.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

623 We turn, then, to the application for leave to appeal against sentence. As earlier mentioned, that application is based on two grounds. Before addressing those grounds, it is convenient, first, to set out the applicant's previous convictions, and to summarise, briefly, the evidence and submissions put before the trial judge on the plea, and the judge's reasons for sentence.

624 The applicant had a number of previous convictions for various offences, including being unlawfully on premises, unlawful assault, theft, being a prohibited person possessing a firearm, and driving offences. He first came before the Melbourne Magistrates' Court in January 1997 (when he was 18 years of age) on charges of unlawfully being on premises, unlawful assault, stalking, and criminal damage. Those charges were adjourned without conviction for a period of six months.

625 Of particular relevance to the present application is that, in November 2005, the applicant pleaded guilty, and was convicted, in the County Court, on one charge of arson. That offence was committed in March 2004. In the early hours of 13 March, the applicant purchased $10 worth of petrol from a service station in Glen Waverley, and then walked 1.5 kilometres to his mother's home. There he poured the petrol around the alcove surrounding the front door. He left the petrol container on the front door step, ignited the petrol and left the scene. At the time, the applicant's mother, and two brothers, were asleep in the house. The fire burnt the front door and the wooden electricity box located in the alcove, and spread to the eaves and rafters inside the roof of the house. The fire woke the occupants who, fortunately, escaped. The fire brigade attended and extinguished the fire before it significantly penetrated the house. The applicant was sentenced to a term of three years' imprisonment, with a non-parole period of 15 months.

626 The applicant was released from prison in 2006. The next offences that he committed occurred on 1 February 2009. On that evening, the police, on intercepting and searching the applicant's vehicle outside a brothel in Blackburn, discovered a large kitchen knife with its blade in a sheath, and a notebook. The prosecution case was that the applicant was armed with a knife with the intention of kidnapping and harming a female sex worker. On 28 July 2011, the applicant was found guilty by a jury verdict of the offence of being armed with a controlled weapon with criminal intent and a further charge of handling stolen property. He was sentenced, by Judge Howie, to a total effective sentence of three years' imprisonment, with a non-parole period of 18 months. His application for leave to appeal against sentence on the charge of handling stolen goods was allowed, and he was re-sentenced to a total effective sentence of two years and 10 months' imprisonment, with a non-parole period of 18 months.[147] As the trial judge, in this case, noted, the convictions of the applicant, for those offences, were not previous convictions for the purposes of sentencing in this case, because the applicant was not convicted or sentenced on them until after his arrest on the arson charges.

627 As earlier mentioned, the applicant was born in 1978. He has two older brothers. He attended Glendale Primary School and Burwood East Primary School, and then Syndal High School and Mount Waverley High School. It appears that he was expelled from high school during the early part of Year 8, and he did not receive any further education. The applicant was diagnosed with autism spectrum disorder, and he has been on a disability support pension since he was 16 years old. His parents separated when he was 17 years old, and for some time the applicant continued to reside in the family home.

628 In March 2012, Ms Pamela Matthews, a forensic psychologist, examined the applicant at Port Philip Prison and provided a report for the purposes of the plea in the matter that was before Judge Howie. A copy of Ms Matthews' report, dated 19 March 2012, was tendered on the plea in the present case.

629 In that report, Ms Matthews noted that the applicant had told her that he had been subjected to abuse during his childhood by his father who had a drinking problem and who was 'a bully and violent' towards him. The applicant also said that he had been bullied by his older brothers, and sexually molested by one of them when he was three or four years of age. He apparently provided a document to Ms Matthews entitled 'Background of Brendan Davies' that recited the applicant's memories of the abuse. He told Ms Matthews that he was physically bullied at school, where he experienced social difficulties.

630 Ms Matthews assessed the applicant to meet the full diagnostic criteria for Asperger's disorder as defined by DSM-IV. Ms Matthews was of the view that the applicant had a history of Asperger's disorder, which was a life-long condition, that impacted on his 'thought stream, focus of interest and interpersonal relatedness'. She considered that it was highly unlikely that the condition would change, and that it was difficult (but not impossible) to ameliorate it through pharmacological or counselling treatments. Ms Matthews also considered that, given the applicant's history of physical, sexual and emotional abuse and victimisation, he at least partially met the diagnostic criteria of post-traumatic stress disorder as defined by DSM-IV. She observed that the applicant did not appear to be coping in the challenging intimate environment in prison, and she expressed the view that his time in prison would be more onerous than for most prisoners. She also considered that prison, and treatment within the prison, was unlikely to prepare the applicant with the coping skills necessary for him when he would be released.

631 On the plea, the applicant also tendered a report by the consultant forensic psychologist Timothy Watson-Munro dated 23 February 2017. In addition, Mr Watson-Munro gave extensive evidence on the plea.

632 Mr Watson-Munro had provided treatment to the applicant on ten occasions between 2 July 2016 and 23 February 2017. He noted that the applicant described numerous incidents during his formative years, in which his father would become verbally, and on occasions physically, abusive to him. In addition, the applicant had medical issues. As a consequence of his physical and psychological problems, he had suffered considerable ostracism at school, where he experienced protracted bullying. Mr Watson-Munro stated that it was clear from his history, and the episodes described by the applicant, that he was raised in a 'highly dysfunctional home', and that his daily experiences were characterised by physical and emotional abuse, which were more impacting on him as a consequence of his autism spectrum disorder. Mr Watson-Munro considered that the applicant presented with a highly complex developmental and clinical history with a diagnosis of Asperger's syndrome (now described as autism spectrum disorder) together with a range of physical problems, post-traumatic stress disorder and high levels of depression and anxiety. He considered the applicant to be highly intelligent.

633 In his report, Mr Watson-Munro stated that the applicant's psychological condition was relevant to the principles described by this Court in Verdins. In particular, Mr Watson-Munro said the following:

Certainly his psychological condition in my view is relevant to his offending behaviour. It is arguable that his Autism Spectrum Disorder has led to an impairment of his judgment, which in turn impacts upon his culpability. In saying this I am not for a moment suggesting that he is unaware of his criminality.

There is no indication from my protracted involvement with him of a Personality Disorder but rather clear signs of autism spectrum disorder, in addition to his high levels of anxiety. Autism spectrum disorder is not a personality disorder. It is a life-long condition and likely has genetic causes ... .

634 As noted, Mr Watson-Munro gave quite extensive evidence on the plea. In evidence in chief (led by the applicant), Mr Watson-Munro noted that the applicant had described numerous episodes of hardship while in prison. He stated that given the applicant's poor capacity to cope with change, which is part of the autism spectrum disorder, inevitably his time in custody would be harmful to him. Mr Watson-Munro stated that people with autism spectrum disorder have difficulty with interpersonal space issues and so they can misinterpret cues. In terms of prognosis, Mr Watson-Munro stated that one very positive aspect of the applicant's history was that there was no indication of drug use or alcoholism.

635 In cross-examination, Mr Watson-Munro noted that the applicant's Asperger's condition was a life-long condition. He considered that treatment, in the form of cognitive behaviour therapy, might ameliorate the risk of re-offending.

636 The prosecutor cross-examined Mr Watson-Munro concerning the application of the principles discussed by this Court in Verdins to the applicant. The prosecutor put to Mr Watson-Munro that the offending in this case involved a degree of planning, and also premeditation as evidenced by the YouTube videos. Based on that evidence, the prosecutor suggested that the principles in Verdins were not 'enlivened'. Mr Watson-Munro responded as follows:

Well it's enlivened in my view in the sense that he has a life-long mental disorder, autism spectrum disorder. ... What I hear you saying is there's a degree of planning, he knew what he was doing, he was aware of the consequences of his behaviour, correct? So he's not suffering from a disease of the mind, ... but ... his judgment, in my view, his impulse control, those sorts of issues are certainly relevant to the diagnosis of autism spectrum disorder.

637 The prosecutor then put to the witness that the Court of Appeal said (presumably in Verdins) that 'the touchstone of moral culpability is to do with comprehension of illegality'. The prosecutor put to the witness that despite the applicant's condition he knew the nature and quality of his acts. The applicant (in our view correctly) then interjected and objected to the questioning. Mr Watson-Munro stated that there was 'clear moral culpability', but added that, notwithstanding that there was (according to the prosecutor) planning and awareness, '... he's not functioning as a normal person. His level of functioning is reduced by virtue of his condition'.

638 The prosecutor then put the following questions and received the following answers:

Do you say that it's lessened or enlivened that first limb of Verdins or do you still have some doubt as to whether it is enlivened? ... Given the comments that you've read to me, I think I would concur with what you're saying.

So from your expert opinion the only limbs of Verdins that are engaged would be number 5? ... Correct.

639 In cross-examination concerning the diagnosis of post-traumatic stress disorder, Mr Watson-Munro stated that he had not been permitted by the applicant to speak to his mother. Mr Watson-Munro also reiterated the view that the applicant is highly intelligent, placing him in the 'higher reach to superior' intelligence bracket. He also considered that because the applicant had a previous conviction for arson, and that he had been convicted on the current offences, the risk of re-offending was 'high ... higher than most'.

640 In re-examination (by the applicant) Mr Watson-Munro stated the following:

• If the applicant actively and willingly cooperated with long-term treatment with a specialist, that would improve his prognosis.
• As an experienced psychologist, Mr Watson-Munro did not feel that the applicant had obfuscated in relation to the history of domestic abuse recounted by him. Mr Watson-Munro considered that the applicant's symptoms of post-traumatic stress disorder pre-dated the traumas that he had experienced in prison, and in all likelihood went back to his domestic experiences.
• Mr Watson-Munro was provided with a transcript of an essay found by the police on the Toshiba hard drive entitled 'The True Reality by Tortured Victim Creation of Society'. He confirmed that in that document the applicant had described abuse by his parents.
• In relation to the question whether the applicant's autism spectrum disorder was relevant to the principle stated in Verdins, Mr Watson-Munro said '... I think the defendant's clinical profile is relevant to issues such as judgment impulse control ... those things I believe are relevant to the offending behaviour'.
• At a later stage in the re-examination, when asked about the connection between the psychological condition and the motive for the offence, Mr Watson-Munro said the following:

... Well I think I said that the defendant's mental state is relevant to the offender's ... behaviour. ... As I've said on a number of occasions, because of the ... its ... what you would call ... subjective circumstances.

• Mr Watson-Munro also confirmed that there was a link between the applicant's history of abuse, his post-traumatic stress disorder, and his offending.

641 The prosecutor commenced his submissions on the plea by contending how the judge should assess the gravity of each of the five offences. In particular, he submitted that the judge should make the following assessment of the offending: in respect of each of charges 1 and 2 ― mid-range of seriousness; charge 3 ― low to mid-range of seriousness; and on each of charges 4 and 5, mid to upper range of seriousness.

642 In oral submissions, the prosecutor noted that the applicant had made an offer to plead guilty in respect of charges 2, 3 and 4, but on the condition that the material contained in the YouTube videos not be used as evidence of motive against him. The prosecution had rejected that offer. In submissions, before the trial judge, the prosecutor accepted that the previous offers, so made by the applicant, demonstrated a 'degree of responsibility' by him.

643 The prosecutor noted that the provisions of Part 2A of the Sentencing Act 1991 ('Sentencing Act') did apply to the applicant, and he submitted that the applicant remained and would remain, at the end of a 'proportionate sentence', a danger to the community. In support of that submission, the prosecutor pointed to the applicant's prior conviction, together with the objective gravity of the offending, and the view expressed by Mr Watson-Munro that the risk of re-offending remained high unless the applicant received intensive specific treatment. Counsel, however, accepted that the judge should order a degree of concurrency in respect of the sentences imposed on each of the charges.

644 The prosecutor further contended that in light of the answers given by Mr Watson-Munro in cross-examination, the principles, summarised in Verdins, did not apply, except that the judge should accept the evidence of Mr Watson-Munro that, because of the applicant's disorder, he would find a term of imprisonment more burdensome. Finally, the prosecutor, in written submissions, provided to the judge a summary of a number of sentences in cases that the prosecutor contended were comparable to this case.[148]

645 On the plea, the applicant filed a detailed 54 page written case, and he also made quite lengthy submissions to the judge. We have read the transcript of those submissions, and the written case. For the purposes of this application, it is sufficient to summarise them in reasonably brief form.

646 The applicant submitted that based on the evidence of Mr Watson-Munro, each of the six mitigatory factors, outlined by the Court in Verdins, applied in respect of the sentence to be imposed on him. In particular, he submitted that, because of the effect of his autism spectrum disorder, the sentencing purposes of general and specific deterrence and denunciation should be modified. In addition, he submitted that his disorder affected, and diminished, his culpability for the offending, and that, as a result of his disorder, the time that he would spend in custody would be more onerous on him. He submitted that the concession made by Mr Watson-Munro in cross-examination ― that only the fifth factor specified in Verdins applied ― was in response to questions put in cross-examination that were based on an erroneous restatement of the principles stated by the Court in Verdins.

647 On the objective gravity of the offending, the applicant submitted that there was no evidence that any of the fires were planned. He contended that the use of an accelerant did not aggravate the severity of the offending, since the use of accelerant is 'stock in trade' in arson offences. He also contended that there was no evidence that any 'timers' were used at the fires. The applicant further contended that it was relevant that each of the buildings, that were the subject of the fires, were non-residential buildings. There was no evidence that the offender knew that anyone was inside the premises. Further, the applicant submitted, the offences were committed within a very limited frame of time, and they essentially comprised one episode over a short period.

648 The applicant further contended that, although he was categorised as a 'serious offender' for the purposes of Part 2 of the Sentencing Act, the judge should not impose a disproportionate sentence, and further the judge should allow substantial concurrency between each of the individual sentences. In particular, he contended that the offending was not so egregious that it should attract the operation of s 6D or the strict application of s 6E of the Act. No person was injured or received medical treatment, and the properties that were the subject of the offences were commercial, not residential. Except for the damage to Croxley Child Care Centre (charge 5), the other fires involved a lesser degree of damage which, he contended, meant that those offences could have been the subject of summary charges.

649 In respect of his previous convictions, the applicant noted that there was no prior conviction for injuring any person. Further, there had been substantial periods of non-offending between a number of the convictions. Apart from the previous arson conviction, a number of the other offences were summary offences or preparatory offences. He further contended that the previous arson offence, for which he was sentenced in 2004, was unplanned, and unsophisticated. The applicant had used a credit card to purchase the fuel, which he used to light the fire. That circumstance, he submitted, indicated a lack of premeditation or careful planning for the offence.

650 The applicant further submitted (on the plea) that, while his prospects of rehabilitation might 'raise considerable concern', nevertheless they were 'far from hopeless'. In particular, while in custody, the applicant had organised a series of psychological assessments and sessions since July 2016. He had completed a number of courses in prison, and certificates in relation to those courses were tendered during the plea. Further the applicant submitted that his family were prepared to take him in on release, so that he would have a home to live in and he would be financially stable. He noted that despite the difficulties that he had suffered while in custody, he had not been charged with any offences while in custody during the previous six years. He further noted that there was no evidence of any alcohol or drug abuse, and he noted, in that respect, that Mr Watson-Munro had expressed the view that a person, who did not have those issues, had a more optimistic outlook than otherwise.

651 In cross-examination of Mr Watson-Munro, the prosecution had noted that the applicant had failed to engage with a Forensicare psychiatrist for assessment for his plea. The applicant submitted that that circumstance should not be used against him in assessing his prospect of rehabilitation. In particular, he had already engaged with Mr Watson-Munro. The applicant was not comfortable with engaging with Forensicare, and he had concerns about the lack of confidentiality and privacy.

652 In the course of the plea, the prosecution had also put before the judge, and tendered, a report from the Parole Board. The letter was unsigned, and purported to have been sent from the General Manager Operations of the Parole Board and dated 22 February 2017. The letter noted that the applicant had been denied parole on 28 February 2007. The letter then stated:

The basis for the Board denying parole was in relation to Mr Davies' attitude towards a period of parole and the conditions the Board may impose.

According to the Board's file Mr Davies indicated in an interview with the Board that he would not comply with the conditions of parole including any psychological/psychiatric intervention.

653 In the course of the plea, the applicant objected, on a number of occasions, to the admission of that evidence before the judge. He pointed out that the document was unsigned, and that he wished to have the opportunity to cross-examine the author of it. Notwithstanding those objections, the judge received the document (as exhibit D on the plea). In his submissions before the judge on sentence, the applicant repeated that the document was hearsay and that its origins were 'unknown'. He noted that the Parole Board had changed personnel since the time at which he was declined parole. He further submitted that on the occasion of his previous incarceration, the Parole Board had accepted allegations made against him which were not only false but which had been positively disproven.

654 The applicant also addressed the judge on the issue of the abuse to which he had been subjected when he was a child. He contended that it was unfair for the prosecution and the judge to insist on viva voce evidence to prove that abuse. He submitted that it is ordinary practice for such matters to be established either by assertion from the bar table or from psychological reports tendered in evidence. He further contended that, in the present case, there was independent support for the existence of that abuse, including the 'dream log' that was contained on the hard drive, and the essay entitled 'A True Reality ― by a Tortured Victim Creation of Society' that was on the Toshiba hard drive seized from his premises. In each of those documents the author (who the prosecution had alleged to be the applicant) had described abuse to which he had been subjected as a child.

655 The applicant further put, as a matter in mitigation, that he had offered to plead guilty on several occasions, but that offer was not accepted by the prosecution. He also relied on the lengthy period of delay between his arrest, in February 2011, and the plea, in March 2017.

656 Finally, the applicant put before the judge, and, in the course of his oral submissions, outlined in some detail, a number of sentences in other cases involving arson on which he relied as comparable cases demonstrating the current sentencing practices that should be considered to be applicable to the present case.[149]

657 On the plea, the judge received victim impact statements in respect of each of the premises that were the subject of the charges. In addition, he heard evidence as to the calculation of the losses suffered by the proprietors of Tanner's and Croxley Child Care Centre. At an early stage in the plea, the applicant put in issue the quantification by the prosecution of the financial loss suffered by the owners of the Tanner's business, and of the proprietor of those premises. In particular, he wished to cross-examine the proprietor of Tanner's, Mr Schache, concerning the claim by the prosecution that Tanner's had suffered business interruption losses of in excess of $200,000. The applicant contended that there was evidence that Mr Schache could have continued to run that business from the front part of the premises which were undamaged, or from the premises next door, which were available to him. He contended that, rather, Mr Schache chose to close the business, and go on a holiday. The judge refused the application by the applicant to cross-examine Mr Schache, or any other witness, who gave evidence in relation to the quantum of those losses. That refusal by the judge was the subject of submission before this Court, and was the subject of one of the matters raised in the applicant's written case for leave to appeal on sentence.

658 The trial judge commenced his sentence by assessing the gravity of each of the offences.

659 The judge considered that Mount Waverley Police Station fire (charge 1) manifested the applicant's disdain for the justice system and deep seated hatred for the police. His Honour noted that the law has considered attacks on the police in the police force to be very serious matters. In respect of the second charge (the St Mary's fire), the judge considered that the gravity of the offence was significant, notwithstanding that 'by good fortune' the intent to cause significant damage was not realised. He accepted the submission of the prosecution that that offence was in the 'mid-range' of seriousness. In respect of the third charge (the St Oswald's fire), the judge noted the use of a timing device, which, he considered, revealed sophisticated planning. However, he considered that as a consequence of the minimal damage, the fire was at the 'lowest end of the seriousness' of all of the five fires.

660 In respect of the fourth charge (Tanner's), the judge noted that the fire had caused extensive damage to the rear of the bakery and significant business loss to the owners. The judge considered that the gravity of the charge was 'significant', because it involved the destruction of a significant part of a building causing a small family business to close. The fire was in a strip of shops, involving an obvious risk to other parties. The judge characterised the fire as a 'brazen and random attack'. Although the applicant took issue with the value of the losses that resulted, the judge accepted that the evidence of the representatives of the insurance companies made it 'unassailably clear' that the losses were extensive, being in excess of $400,000. Accordingly, the judge accepted the prosecution submission that the arson should be characterised as being in the 'mid to upper range' of seriousness.

661 In respect of the fifth charge (Croxley Child Care Centre), the judge considered that the fire was of real seriousness. It occurred in a suburban street, destroying a building and a viable and necessary small business. Notwithstanding the prosecution submission that the fire fell in the 'mid to upper range', the judge considered that it came within the 'upper range' of seriousness. His Honour noted that the impact on the victims, as described in the victim impact statements, was a significant factor that added to the gravity of the offending.

662 The judge then turned to the personal circumstances relating to the applicant. Having summarised the circumstances of the previous arson offence, and the matters that were before Judge Howie, the judge considered that the applicant's previous offending '... gives rise to a heightened need for deterrence to you and a real need for protection of the community from your criminality'.

663 Having discussed the applicant's personal circumstances, and the evidence of Mr Watson-Munro and the report of Ms Matthews, the judge referred to the submission made by the applicant that the abuse, to which he had been subjected during his upbringing, was a mitigatory factor. The judge considered that there was 'no question' that the applicant had come to the firm view that he had suffered as a child, and that he believed that the family as an institution is inherently abusive. However, his Honour noted that the applicant had 'stringently prevented' any analysis or investigation of his claims. He considered that the applicant's report of abuse to Mr Watson-Munro had 'the air of an exaggerated hindsight justification'. His Honour then said:

I am unable to accept on the evidence that I have the full extent of what you say is your experience as a child and adolescent. It is troubling that you prevented Mr Watson-Munro from simply talking with your very supportive mother as he normally would do in these circumstances. But what I can accept and act on is that with your Asperger's or autism spectrum disorder, things were not easy at school or at home. The family relationships with others were from your perspective with your autism, not ideal.

However you probably did have a sense of being bullied but it seems your parents, and particularly your mother, has been unstinting in her support despite everything.

664 The judge then stated that, accordingly, he was unable to accept that any post-traumatic stress disorder that the applicant might have, was attributable to his early years. His Honour considered that any such disorder arose mostly, if not entirely, from the difficulties that he experienced since he had been in custody, because his autism spectrum disorder had made prison more difficult for him. Thus, the judge concluded that 'little if any' mitigation arose from the nature of the applicant's upbringing.

665 The judge then turned to the question whether the principles in Verdins applied in mitigation of sentence. In that respect, his Honour stated:

I do not intend to cover each and every aspect of his evidence. What stands out is that Mr Watson-Munro, having considered all the matters put to him by you, the prosecution and by me, in the end, was firmly of the view that none of the Verdins matters were engaged except the one being that jail would be harder for you because of your impaired mental functioning than it would be if you did not have that impaired mental functioning.

666 The judge noted that in cross-examination Mr Watson-Munro had said that the applicant's 'moral culpability was not less or lowered by reason of any impaired mental functioning'. His Honour recited the cross-examination of Mr Watson-Munro by the prosecutor, which we have set out above. Having done so, he concluded that he was 'firmly of the view' that the only conclusion is that none of the mitigatory factors, specified in Verdins, were operative except that a term of imprisonment would be harder for the applicant due to his impaired mental functioning. The judge stated:

So to be clear, your moral culpability remains very high and is not, in my view, to be seen as diminished by reason of any aspect of your impaired mental functioning of anxiety, post-traumatic stress disorder or autism taken separately or in combination. You knew precisely what you were doing by committing each of the arsons and that it amounted to what you intended which is a deliberate attack on our community. It was a considered, deliberate campaign all planned and executed by you. There was, and is, no causal connection or link between your post-traumatic stress disorder, anxiety or your autism and these five fires.

667 Thus, the judge concluded that there should not be any moderation of general deterrence or specific deterrence by reason of the applicant's impaired mental functioning, and that his moral culpability for the offences was 'very high'.

668 The judge then considered the applicant's prospects for reform and risks of re-offending. He noted that the applicant had refused to be examined by expert psychiatrists or psychologists from Forensicare. The judge considered that the applicant was an ongoing danger to the community, and that the likelihood of his re-offending in the future was very high. He further considered that his prospects for reform and rehabilitation were 'very slim at best and most likely non-existent'. He considered that nothing in the evidence of Mr Watson-Munro revealed that the applicant had any insight into his criminality.

669 The judge noted that the applicant had been in custody since his arrest on 3 February 2011. He stated that some of that time would be declared as pre-sentence detention pursuant to s 18 of the Sentencing Act. For the remainder of that time, he was in custody pursuant to the sentence imposed by Judge Howie in 2013. Because the applicant was in custody awaiting trial for the arson offences, he was not considered for parole when the minimum term imposed by Judge Howie expired. Accordingly, the judge stated that he would take into account in the applicant's favour that he had served the whole of the head sentence imposed by Judge Howie (as varied by the Court of Appeal).

670 The judge then considered the question of delay between the arrest of the applicant and trial. He noted that the applicant had been self-represented, and that he had made three interlocutory appeals to the Court of Appeal during pre-trial argument. The judge stated:

The length of the trial, the pre-trial argument and the many hearings from March 2014 onwards exposed the vulnerability of our system of justice.