DPP v Ayuel

1. This is a trial by judge alone after the accused, Mary John Ayuel, signed an election on 16 October 2025 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT).

2. The accused has been charged with two counts of arson contrary to s 404(1) of the Criminal Code 2002 (ACT).

3. As the accused elected to be tried by judge alone, I must include the principles of law which have been applied by me, and the findings of fact on which I rely, in this judgement. I am also required to consider any direction or warning that might be given to a jury when considering a verdict on the charges.

Elements of the charge of arson

4. The elements of arson in respect of both counts on the indictment are: (a) The accused engaged in conduct. (b) The accused intended to engage in the conduct. (c) The accused’s conduct caused damage to a building or vehicle by fire or explosive. (d) The accused intended to cause, or was reckless about causing, damage to the building or vehicle or any other building or vehicle.

The prosecution case

5. The indictment alleges: (a) Count 1: On 10 September 2023, Mary John Ayuel caused damage to a garage building at 48 Dulcie Holland Crescent, Moncrieff, and a Holden Calais. (b) Count 2: On 11 September 2023, Mary John Ayuel caused damage at Unit 8/29 Gussey Street, Moncrieff.

6. The accused lived at Unit 6/29 Gussey Street at the time of the alleged offences. This residence is within a two-storey apartment building. The accused’s unit was positioned directly opposite Unit 8, with the front doors facing each other. The resident of Unit 8 was Ms Lynsay Vincent, whose daughter, Claire Minnis, was staying with her on the night in question.

7. The resident of the house where the first fire occurred on 10 September 2023 was Ms Kock-Kedhia Makoi, whose friend, Oliver Farrugia, was staying with her on the night in question. His Holden Calais was stored in the garage. This house is a two-storey townhouse attached to 50 Dulcie Holland Crescent by a shared wall.

8. The prosecution alleged that the accused entered via a rear gate at the house at 50 Dulcie Holland Crescent and accessed the garage at the rear of the residence. The accused then allegedly lit a fire inside the garage which engulfed and caused damage to the property and the Holden Calais parked inside the garage.

9. The prosecution alleged that, later that night, in the early hours of 11 September 2023, the accused lit a fire in the communal stairwell of the apartment complex at 29 Gussey Street, which caused damage to the front door of Unit 8 and the ground area surrounding it.

Directions

10. I have taken the following applicable directions into account in reaching my verdicts in this matter.

Onus and standard of proof

11. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. That burden does not ever shift to the accused. The accused is presumed to be innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. I must find her not guilty if the evidence which I accept fails to satisfy me beyond reasonable doubt of her guilt. Each element of the offence of arson must be proved beyond reasonable doubt.

Fact-finding and inferences

12. I must find the facts of the case based on the evidence presented. In assessing the evidence, I must bring an unbiased mind. I must consider the evidence clinically and dispassionately, without letting emotion into the decision-making process. However, I may use my common sense and individual life experience and wisdom in assessing the evidence.

13. I must determine whether each witness called is reliable, that is, whether the witness has an accurate and reliable memory of the events about which the witness has given evidence. I am not required to accept a witness’ evidence wholly or to reject it wholly. I can accept everything said by a witness if I consider it worthy of acceptance, or reject it if I consider it entirely unworthy of acceptance. I can accept part of what a witness said and reject other parts of what they have said. A witness can be truthful but wholly unreliable. On the other hand, a witness can be truthful but partially unreliable. Or, indeed, a witness may be wholly untruthful and wholly unreliable.

Accused did not give evidence

14. The accused did not give evidence in these proceedings. She had no obligation to give evidence, and I must draw no adverse inference from her decision not to give evidence. The accused is entitled to say nothing. It is for the prosecution to prove her guilt beyond reasonable doubt. I cannot use the absence of evidence from the accused to fill in any gaps in the prosecution case, nor can the absence of such evidence be used to strengthen the prosecution case. I cannot speculate about what might have been said by the accused had she been called to give evidence. In short, I cannot take the accused’s decision not to give evidence into account in any way in deciding this case.

Evidence given by audiovisual link

15. At least one witness gave evidence by audiovisual link. That was Mr Chang. I remind myself that this is a usual practice and I must not draw any inference adverse to the accused or attach any greater or lesser weight to the evidence of that witness because of the means by which he gave his evidence.

The Mahmood direction

16. Counsel for the accused cross-examined First Constable Oliver Bill about his attempts to locate the person referred to by a number of witnesses as “Briony”. Briony lived two doors away from Ms Makoi. There were also other neighbours of Ms Makoi referred to in evidence, including one immediate next-door neighbour, who were not called by the prosecution. Given the evidence that there was some acrimony between the occupants of 50 Dulcie Holland Crescent and Briony, I can take into account the absence of any evidence from Briony or any other neighbour present in the street that night when deciding whether I am satisfied beyond reasonable doubt of the guilt of the accused or whether I entertain a reasonable doubt about her guilt.

17. Where the prosecution has failed or been unable to obtain evidence, such as is the case here, which might have assisted me in assessing whether the accused is guilty of these offences, I must, and do, bear in mind that it is harder to be satisfied of the accused’s guilt beyond reasonable doubt. I cannot, and do not, speculate about what, if any, relevant evidence a witness might have given. The critical issue for me is whether I am satisfied beyond reasonable doubt, on the basis of the evidence which the prosecution has called, of the accused’s guilt on either of these charges. Circumstantial evidence

18. The evidence in this case is comprised almost wholly of circumstantial evidence. No one saw who lit either of the two fires on the night in question. The prosecution relies on a number of circumstances in support of the allegations, including CCTV footage, evidence about the relationship of the accused with each of the occupants of the damaged premises, and on other items seized by the police. The prosecution submits that the combined effect of the circumstantial evidence is sufficient to establish the accused’s guilt beyond reasonable doubt.

19. The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused committed the offence in question is the only rational inference that can be drawn from the whole of the circumstances which are established to my satisfaction by the evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt of the accused’s guilt on the basis of circumstantial evidence unless no other conclusion is rationally open on the basis of that evidence.

20. Whilst I accept that I must consider and weigh together all of the circumstances established by the evidence not in a piecemeal fashion or individually, I nevertheless accept the accused’s submission that, given the nature of the evidence in this case, particularly with respect to Count 1, I must be satisfied beyond reasonable doubt either that the CCTV footage tendered depicts the accused or that the telephone evidence unequivocally places the accused at the scene of the first fire (the fire the subject of Count 1) before I could use either of those facts to contribute to the cumulative weight of the other circumstantial evidence in the case which I accept.

Expert evidence

21. Mr Raymond Chang was called as an expert witness in this case. An expert witness has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.

22. I direct myself that the value of any expert opinion will depend upon the reliability and accuracy of the material which the expert used to reach the expert’s opinion. It will also depend upon the degree to which the expert analyses the material based on the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their training, study and experience, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

23. In this case, the expertise of Mr Chang was not disputed. Nevertheless, the effect of his evidence was in dispute and I must consider carefully what conclusion, if any, I can draw about the precise whereabouts of the accused at the relevant time in respect of Count 1 on the basis of the evidence he gave.

Identification evidence

24. In this case, the prosecution submits that I should draw the conclusion that the person captured in the CCTV footage tendered at the trial is the accused. I must exercise special caution before I draw the conclusion that it is the accused in the footage.

25. Special attention or care is necessary because of the possibility that I might be mistaken. The experience of the courts over many years, both in Australia and overseas, has demonstrated that conclusions drawn about identification may turn out to be unreliable. There have been some notorious cases over the years in which identifications have been found to be wrong after innocent people have been convicted. I must examine the evidence very carefully, conscious that there have been many occasions where conclusions about identification reached by judicial officers have been shown to be wrong.

26. In circumstances such as the present case where I am asked to make an assessment of the accused’s physical appearance in court to compare it with the physical appearance of the person in the footage tendered, I bear in mind the particular risks of in-court identification referred to in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [18]. I will return to this issue when discussing the evidence.

Challenge to the admissibility of the accused’s record of interview

27. After the commencement of the trial, the accused sought to have her record of interview with the police on 17 October 2023 excluded on the basis that the police failed to comply with s 23G of the Crimes Act 1914 (Cth), specifically, that police failed to heed her repeated statements that she did not wish to answer any questions and failed to give her a reasonable time within which to make contact with her lawyer.

28. To some extent, the record of interview speaks for itself. Within the first few minutes of the interview — which commenced at 10:24am on Tuesday, 17 October 2023 at the Alexander Maconochie Centre (AMC), where the accused was then in custody — the accused stated that she did not want to answer any questions until her lawyer was present. Set out below are the answers she gave at that early stage of the interview: Q23. Okay. Mary, can you tell me what you were doing on the 10th of September 2023. Can you run me through your day on that day. A Don’t want to. Q24. Don’t want to. Okay. So the 10th of September 2023, do you recall what day of the week that was? A (No audible reply) Q25. Nah. Okay. So how long have you been here for [redacted] A A month. Q26. A month. Okay. Can you tell me what led up to you being here. A I don’t want to speak till my lawyer’s here. Q27. Sorry. A I don’t wanna speak till my lawyer’s here. Q28. You don’t want to speak till your lawyer’s here? A Mm-hmm. Q29. So when I gave you your rights before, I mentioned that you may communicate or attempt to communicate with a lawyer. You may arrange or attempt to arrange for a lawyer of your choice to come out here. You mentioned that you didn’t want that to happen and you now - - - A I didn’t hear that properly. Q30. Okay. I’ll say it to you again. Okay. So, Mary, you may communicate with or attempt to communicate with a legal practitioner of your choice and arrange or attempt to arrange for a legal practitioner of your choice to be present during the questioning. Do you understand that? A Yes, now I do. I didn’t hear it properly. Q31. No. It’s okay. Do you wish to communicate with a legal practitioner? A Yes. Q32. Okay. Do you agree that prior to this record of interview commencing, you did speak to a legal practitioner? A Yeah, I did before. Q33. Yep. Okay. Would you like to speak to a legal practitioner again? A Face-to-face, yes. Q34. Okay. So that’s up to you to make those arrangements. So I can put you back on the phone to Legal Aid and you can request they come out here, but it’s up to them whether they come out here and not [sic] and that’s totally on them . Does that make sense? A Mm-hmm. Q35. Yeah. Would you like to make those arrangements? So it’s mainly - - - A I have my lawyer on my phone so I can talk to him myself.

29. At 10:29am, the interview was suspended and the police officer, First Constable Bill, made three attempts to contact the accused’s lawyer by telephone. Nine minutes later, at 10:38am, the interview recommenced: Q39. Mary, do you agree that during that suspension, I made attempts to contact your lawyer from Fortify Legal that you nominated to us. A Mm. Q40. Mary, do you agree that we weren’t able to contact her, but we’ve left a message for her to call back? A Yeah. Q41. Okay. Mary, I’ll caution you that you don’t have to say or do anything, but anything you do say or do may be used in evidence. Okay. A Mm-hmm. Q42. And those rights I read to you before still apply. Okay. A Mm-hmm.

30. The officer then continued to question the accused, in response to which she made admissions to being near the address of the fire at 48 Dulcie Holland Crescent for the purpose of attempting to obtain some marijuana from a dealer whom she knew, who lived next door to Ms Makoi. She then said: A Anyways, why do I have to answer all these questions? Q126. You don’t have to answer any of these questions. I’m just trying to find out - - - A That’s what I did with my day. Q127. Did with your day. Okay. And you said the last time that you were on Dulcie Holland Crecent at about – between 7.00 or 8 pm. A Mm-hmm. Q128. And you went to Briony’s house to by [sic] cannabis, but you found out she wasn’t there. A Mm-hmm.

31. The police continued to question her and she made further admissions.

32. She was shown CCTV footage taken outside the units at 29 Gussey Street and 48 Dulcie Holland Crecent. At that point, she stated that she did not want to answer any more questions: Q180. Okay. So you knocked on a – what kind of door? A big roller or what? A I don’t want to answer any more questions. Q181. Okay. Okay. So this footage is taken form [sic] the back of 48 Dulcie Holland Crecent. So this is Schneider Lane and this is taken at 8.46 pm. Can you tell me what I’m looking at in the footage there? A Nn-nn. Q182. Sorry? A No comment.

33. The police officer continued to question the accused about the person on the CCTV footage until she said: Q190. Can you tell me if you remember this person to be you in the footage. A I guess it look[s] like me. I don’t know. Q191. Sorry? A Yeah, I guess so. I want my lawyer. Q192. Yeah. That’s fine. Do you want to stop the interview where we are now or would you like to continue watching the footage? A I want to stop. Q193. Sorry? A Until I see my lawyer.

34. The interview was again suspended at 10:58am and resumed again at 11:05am.

35. When the interview resumed, the officer again cautioned the accused that she did not have to say anything: Q197. I’m just reminding you that the caution I gave to you still applies. You do not have to say or do anything, but anything that you do say or do may be used in evidence. Do you understand that? A Mm. Q198. For the purpose of the tape, are you able to – can you just verbalise your answer? A Can you do it again because - - - Q199. Yeah. A - - - my head is somewhere. Q200. Mary, you do not have to say or do anything. Anything you do say or do may be used in evidence. Okay. That’s the caution - - - A Mm. Q201. - - - that I gave you at the commencement of this interview. Okay. A Mm. Q202. Do you clearly understand that caution? A Mm-hmm. Q203. Can you just verbalise your answer for me, Mary? A That whatever answer I say, you guys can use it against me in court. Q204. Yep. And you understand that caution. A Mm. Q205. Do you agree that during the suspension, you spoke to your lawyer? A Yes. Q206. Okay. I intend to play you some CCTV footage from here. Would you like to view that footage? A Mm. Q207. Can you verbalise your answer for me, Mary. A Yeah, I’ll watch it but no question [sic].

36. After the accused had spoken to her lawyer during the second break in the interview, she made no further admissions. At the end of the interview, the following questions and answers were recorded: Q230. Okay. Would you like to look at anymore [sic] footage in relation to this incident? A No (Indistinct) Q231. I think we’re done. Mary, would you like to continue with this interview? A (No audible reply) Q232. Is there anything further that you wish to tell me about this matter? A No. Q233. Have the answers you’ve given during this interview been made of your own free will? A Maybe. Q234. Have the answers you’ve given during this interview been made of your own free will? Has any threat, promise, or inducement been held out to you to make these answers that you provided during this interview? A You guys pressure me. Q235. How did I pressure you? A Saying I don’t have to answer questions and you keep asking questions. Q236. Yeah. But do you remember when I asked you – when I cautioned you at the start you don’t have to answer any of my questions and you said that you understood that. A Well, half of my head is here. Half of my head is somewhere else. Q237. Yeah. I understand that. So you’re saying I pressured you. Can you elaborate on that for me. A I just spoke about my sexual assault before. So my head is somewhere else, you know. Q238. Sorry? Can you say that again? You - - - A I said speaking about my sexual assault. Q239. Okay. A My head is somewhere else. Half of my head is here. Q240. Yeah. A Half of my head is somewhere else. Q241. No. I understand that. And I did think at the start of the interview, we gave you an opportunity and you did speak with a lawyer. And then I provided you with your caution that you didn’t have to say or do anything and you told me that you understood that, and you said that back to me. A Mm. Q242. And then we had you speak to your lawyer again. So can you elaborate on how I pressured you. A No comment. I just wanna go back. Q243. It’s okay. Did I threaten you to provide the answers you’ve given? A I want to go back to my cell.

37. First Constable Bill was questioned on the voir dire. It transpired that he was fully aware of the parallel investigation into the second fire on the night of 23 September 2023. (If he had not been aware, he ought to have been as, by 17 October 2023, when he attended at the AMC to interview the accused, he knew that she had already been to court in respect of the second fire and knew that she was represented by a lawyer.)

38. In the intervening period between 23 September and 17 October, First Constable Bill had conducted enquiries to obtain CCTV footage from one of the occupants of one of the residences at the back of 48 Dulcie Holland Crescent. After the bystander, Ms Regan, initially refused to provide the CCTV footage, the police officer then contacted her lawyer and arrange for a meeting between the three of them the next day. After that meeting, Ms Regan decided to hand over the footage.

39. In order to interview the accused at the AMC, it was necessary for First Constable Bill to book an appointment. The appointment was for 10:30am at the AMC, which he duly attended at 10:30am on 17 October.

40. First Constable Bill ought to have been aware that, after the accused’s arrest in respect of the second fire on the morning of 11 September, she had declined to speak with the police. By 17 October 2023, the accused had already been in custody for a period of five weeks. Even if he was not aware, it is apparent — from the evidence he gave about the arrangements he made with the witness to attend with that witness’ lawyer — that the constable could just as easily have arranged for the accused’s lawyer to be present for the interview of the accused. He made no attempt to do so and only phoned the lawyer at the accused’s request after the interview had commenced and at a time when he knew that most lawyers would be busy at work on a Tuesday morning.

41. I consider the police officer’s answers in cross-examination on the voir dire to be somewhat disingenuous. To my mind, the timing of the interview, followed by the persistent questioning of the accused even after she had made it perfectly clear she did not want to answer any further questions until she had spoken to her lawyer, was unduly oppressive. The accused is a Sudanese woman who, at the relevant time, was in custody at the AMC. English is her second language and there is no doubt he knew she had a lawyer. Indeed, he knew the name of that lawyer.

42. To my mind, given all of the circumstances, the police officer did not accord the accused a reasonable time to allow the accused to make contact with her own lawyer and to allow the legal practitioner thereafter to attend the questioning. Of particular significance to my conclusion is the fact that, after she was able to speak with her lawyer, she made no further admissions.

43. For these reasons, I ruled at the conclusion of the voir dire hearing that the record of interview would not be admitted at the trial.

The evidence at trial

Agreed facts pursuant to s 191 of the Evidence Act 2001 (ACT)

44. Agreed facts were tendered at trial. It is appropriate to reproduce them in full: 1. On 27 August 2023, Kock-Kedhia Makoi received a threatening text message from someone using the email account: samadoskiio@gmail.com. 2. On 10 September 2023, a fire was lit within the garage of 48 Dulcie Holland Crescent Moncrieff, ACT, which engulfed and caused damage to the property and a vehicle, namely a black Holden Calais sedan (ACT registration YNJ 86K) belonging to Oliver Farrugia. 3. The residence, a two story [sic] townhouse divided by a wooden fence to number 46 and attached to the neighbouring property at number 50 by a common wall, was owned by the ACT Government and least through ACT Housing to Ms Makoi. Also living at the property at that relevant time, was Mr Farrugia and Miss Makoi’s (then) six-year-old son. 4. At approximately 8:46pm, a person is captured on closed circuit television (CCTV) walking along Schneider Lane, a street which runs between the houses which face Dulcie Holland Crescent and Jimmy Little Street, with the garages for each property from those subsequent streets opening onto Schneider Lane as their vehicular entry/exit points. This CCTV is captured from the home and connecting garage of Erin Regan, also an ACT Housing leased property. 5. The CCTV shows this person approaching the back gate of 48 Dulcie Holland Crescent, which is immediately adjacent to the garage of that property and the wooden side fence to number 46. The person then disappears from the view of the CCTV. 6. At approximately 8:50pm, the CCTV captures this person walking away in the opposite direction to 48 Dulcie Holland Crescent, towards Jimmy Little Street. 7. At about 8:55pm, a glow, ostensibly from the fire, is seen to be reflecting onto the garage door of Ms Regan’s property. Within a matter of minutes, the glow increases with smoke also becoming visible. 8. At approximately 9:00pm, a smoke alarm within 48 Dulcie Holland Crescent sounds and Ms Makoi discovers the fire within the garage of the home. Telephone calls are made to 000 by resident Mr Farrugia, a neighbour Christopher Weeks – the partner of Ms Regan – and a passer-by driving past Bharat Bhatia, for emergency services to attend, all within a matter of minutes of each other. 9. ACT Police arrived at about 9:20pm and ACT Fire and Rescue at about 9:21pm. 10. Constable Tom Richardson arrived at the premises at approximately 9:15pm and located ACT Fire Station Commander Tony Wiggan. Commander Wiggan informed Constable Richardson that the fire had, at about 11:15pm, been extinguished, and formally handed the property over to the ACT Policing at approximately 1:45am on 11 September 2023, advising that no persons were to enter because of the issues with the integrity of the property. 11. AFP forensic expert, Nick Spelwinde, attended the property on 11 September 2023 and, after a comprehensive assessment of the home, opined that with fire indicators visible in the rear of the premises, the garage was suggested to be the origin as the starting point of the fire. Mr Spelwinde took a number of photographs during his assessment. 12. The property was additionally assessed by Lindon Coot and Harris McLaughin, structural engineers for Coot Consulting Engineers Pty Ltd, contracted by the ACT Government. 13. Claire Cumming, also an AFP forensics expert, on 12 September 2023, took a number of photographic images during an assessment of the structural integrity of the property. … 15. At the time of the offence, the accused lived at Unit 6/29 Gussey Street Moncrieff. The walk, according to Google Maps as at 1 November 2025, between this property and 48 Dulcie Holland Crescent, on the most direct route utilising foot paths, was approximately 1.1km, or about 14 minutes. 16. At about 11:45pm on 10 September 2023, Constable Damien Appleby attended a reported disturbance at 29 Gussey Street Moncrieff between Linsay Vincent and the accused. Constable Appleby spoke to both women; he observed the accused to be incoherent and under the influence of alcohol. He additionally observed a large pile of clothes located just inside the entry on the floor of the accused’s apartment. 17. Alongside Constables Seth Mollenido and Damien Appleby, Sergeant Heather Donnellan also spoke with the accused. She observed that she was wearing a black t-shirt with gold writing and short black bike shorts. Sergeant Donnellan further observed that the accused was not making sense when speaking, affected by the alcohol that the accused self-disclosed she had consumed. 18. Sometime shortly after 12:39am on 11 September 2023, Ms Vincent was inside her apartment at Unit 8/29 Gussey Street, when a smoke alarm activated. She observed smoke to be coming into her home from under the front door. 19. At this time, she requested that her daughter Claire to [sic] call the police and emergency services. 20. Police and ACT Fire and Rescue attended, with the latter extinguishing the fire, which was lit at the base of the front door to Unit 8. That fire caused damage to the door and the surrounding floor. Also found in the immediate vicinity was a melted green plastic bottle and burnt clothes. 21. Shortly after 12:40am, Sergeant Donnellan with Constables Mollenido, Appleby and Sharna Curren, knocked on the door of the accused and entered with her permission. She was subsequently arrested and provided her Part 1C caution and rights. 22. AFP forensics chemist Lauran Bowen tested the items as well as seized clothing worn by the accused, and found medium to heavy petroleum distillates on the various items of clothing located outside of Unit 8 and the melted green plastic bottle. The results opined that the burnt clothing and the bottle were likely to have come from the same source. No ignitable liquids were identified on the accused’s clothing. 23. Sergeant Sharon O’Keefe, AFP forensics crime scene investigator, observed that the front door to apartment 8 was of solid core construction with a painted external exterior. The floor below the door was tiled. The external surface of the door contained fire damage in the shape of an inverted “V” pattern, located at the bottom of the door on the right-hand side. Sergeant O’Keefe observed that this damage measured approximately 40cm high from the floor and 20cm wide at its base. Located at the right hand side of the door entry was an amount of burnt fabric. Sergeant O’Keefe also observed that located on the tiled floor surface below the front door was a yellow/brown substance. A blue/green coloured substance was located splattered across the lower portion of the door surface and door entry. … 25. When the accused was arrested, she was wearing black and white coloured shoes. These shoes remained in the custody of the Alexander Maconochie Centre (AMC) until surrendered to First Constable Oliver Bill pursuant to a search warrant, executed on the 19 September 2023. 26. A search warrant was applied for and obtained for Unit 6/29 Gussey Street Moncrieff. Police conducted a search of the home, on 22 September 2023 at approximately 4:09pm, with the accused’s brother David Ayuel present, and found several items of black/dark clothing belonging to the accused, including a navy blue jacket, as well as other dark jackets and dark coloured pants. … 28. The decision of DPP v Ayuel [2024] ACTSC 404, a judgement of her Honour Acting Justice Christensen, ordered that the evidence set out in the Notice of Intention to Adduce Coincidence Evidence, dated 25 September 2024, is admissible for coincidence purposes at the trial of the accused.

45. Photographs depicting the damage to the property at 48 Dulcie Holland Crescent and photographs depicting the damage at the premises at 29 Gussey Street were also tendered by way of agreed facts.

The evidence

46. Ms Makoi — together with her partner at the time, Oliver Farrugia, and her son — were residing at 48 Dulcie Holland Crescent on the evening of 10 September 2023. Ms Makoi and the accused had known each other for 12 years and were friends. Their friendship was volatile and, in the days leading up to 10 September 2023, Ms Makoi and the accused had exchanged acrimonious text messages.

47. At trial, Ms Makoi was taken through a number of text messages between herself and the accused in the period leading up to 10 September 2023.

48. [Redacted].

49. Ms Makoi said that the accused damaged her bicycle and sent her a picture of the damaged bicycle by text, prior to Ms Makoi picking up her bike from the accused’s residence at 29 Gussey Street.

50. Ms Makoi said she received a text message on 27 August 2023 which upset her. She showed this text message to the accused and to her partner, Mr Farrugia.

51. When they were on friendly terms, the accused used to visit Ms Makoi almost every other day. If Ms Makoi was not home at the time when the accused arrived, the accused would enter through the back gate and wait in the garage.

52. She knew that Mr Farrugia had been friendly with the neighbour named Briony and that, at some point, he had decided not to go to Briony’s house anymore.

53. Neither Ms Makoi nor Mr Farrugia saw who lit the fire on 10 September 2023. Mr Farrugia said that, at some point prior to the fire, his tyres had been slashed. He did not know by whom but he thought it might have been by Briony because he had a falling out with her at about that time.

54. Mr Farrugia said that Ms Makoi had a lot of friends coming and going from her residence at 48 Dulcie Holland Crescent during the time he stayed there. On one occasion before the fire, he had told the accused to leave the home because she was too drunk and boisterous.

55. When he was asked to describe the appearance of Briony, he said she was short, petite and had brown hair. Mr Farrugia also said that, at some point prior to the fire, he was threatened by Briony’s partner whose name was either Dan or Don.

56. David Ayuel, the accused’s brother, was called by the prosecution. His evidence was not helpful, except that he did confirm that his sister was a smoker. At the time of the accused’s arrest, she had a lighter in her possession.

57. Mr Ivan Mihalic was called by the prosecution. He presented as a tall man, approximately 2 m tall. I observe, in passing, that he is plainly not the person seen on the CCTV footage from the night of 10 September 2023. However, Mr Mihalic did confirm that Briony lived next door to him at 54 Dulcie Holland Crescent. She was residing at number 52 and “another dude with two kids” lived at number 50 (directly next door to Ms Makoi).

58. Raymond Chang is a senior technical specialist at Optus. His expertise was not challenged by the defence. His evidence is principally relevant to Count 1.

59. Mr Chang said that, based on the strength of the tower signals to which the accused’s mobile phone was connecting during the critical time period when the fire at 48 Dulcie Holland Crescent was lit, it was highly likely that the accused’s mobile phone was further north than 29 Gussey Street Moncrieff during the critical period.

60. However, he did qualify that evidence in cross-examination by saying that the cell tower evidence he had been given is also consistent with the accused’s mobile phone being in one place during the critical time period and connecting to different antennae on the relevant cell towers depending on the conditions on the night and other extraneous factors.

61. Given that the accused lived at 29 Gussey Street, an address which is equidistant from the two relevant cell towers nearest the accused’s residence (Moncrieff and Ford), he said it was also possible that the phone could have been connecting to one or other of these towers depending on where exactly in the home of the accused the phone was at any time

62. From Mr Chang’s evidence, the prosecution invited me to draw the inference that the accused’s phone was in the vicinity of the fire at 48 Dulcie Holland Crescent between 8:39pm and 8:50pm on 10 September.

63. CCTV evidence was played. The prosecution submitted that, from the CCTV evidence, it can be established that: (a) the accused left her residence at 29 Gussey Street at approximately 8:30pm; (b) she was wearing black and white shoes and other dark clothing; (c) it is the accused on the CCTV footage captured from a camera at the residence of the neighbour, Ms Regan, approaching the back gate of 48 Dulcie Holland Crescent between 8:46pm and 8:47pm; and (d) it is the accused who is seen walking back towards Jimmy Little Street at approximately 8:49pm.

64. The difficulty with that submission is that the CCTV footage is not clear. Whilst the general appearance of the person seen walking on the CCTV footage is not dissimilar from the appearance of the accused as I observed it in court, I cannot be satisfied beyond reasonable doubt that the person in those images is in fact the accused. That is because the clothing worn by the person seen in the CCTV footage is not distinctive. It is not possible to even say whether the person on the CCTV footage is male or female or of any particular ethnic background. In addition to this, some footage is missing during the critical moments during the very period the fire must have been lit.

65. The prosecution argued that, from the whole of the evidence, I can infer that the person captured on the CCTV footage in Schneider Lane at the relevant time was the accused and she entered through the back gate of 48 Dulcie Holland Crescent, lit the fire before leaving and walking back towards Jimmy Little Street.

66. There was no forensic examination carried out to identify the cause of the fire at 48 Dulcie Crescent. The highest the expert put it was that the seat of the fire was likely to have been in the garage.

67. There is no evidence which places the accused at or near the scene of the first fire.

68. The highest that can be said of the CCTV footage in Schneider Lane is that a person of similar description to the accused was seen in the area at the back of 48 Dulcie Holland Crescent during and after the time the fire was lit.

69. No one saw or heard who lit the fire at 48 Dulcie Holland Crescent.

70. The evidence satisfies me that there were other people living nearby to the accused who had an acrimonious relationship with the occupants of 48 Dulcie Holland Crescent in the period leading up to the fires, including, in particular, the neighbour Briony

71. Numerous people came and went to the residence of Ms Makoi.

72. At least one other unidentified person had threatened Ms Makoi by text in the two weeks preceding the fire.

73. In this respect, I note that the prosecution relied on the existence of an email on 27 August 2023 to suggest that it was the accused who had sent the email to Ms Makoi. As it transpired from the material extracted from the accused’s phone after her arrest, the accused herself was searching on 27 August 2023 as to the identity of the sender of that email. That evidence is consistent with Ms Makoi’s evidence that she showed the accused that email on 27 August at a time when the accused had been staying with her. To my mind, it is highly unlikely that, if the accused was in fact the sender, she would have been searching to identify who sent the email.

74. For that reason, I reject the submission that I should find the accused sent that email to Ms Makoi (however, it remains relevant as it is evidence of ill will towards Ms Makoi by at least one other person besides the neighbours at the relevant time).

75. The most that can be said against the accused in respect of the first fire is that she had the opportunity, the motive and the means to attend at 48 Dulcie Holland Crescent as she had done so many times before. However, in the absence of any evidence to place the accused at or near the scene, or any evidence as to the source of ignition of the fire, I cannot be satisfied beyond reasonable doubt that it was the accused who is seen on the CCTV images. I am satisfied that whoever it was is likely to have been the person who lit the fire.

Coincidence evidence

76. The prosecution invited me to use coincidence reasoning to find that it was the accused who lit both fires, namely: (a) A common motive, which was said to be retaliation by the accused for perceived wrongs committed against her by Ms Makoi and Ms Vincent. (b) Both fires occurred within four hours of each other. (c) Both fires were lit at private residences in Moncrieff. (d) Both fires were lit at the entry or exit points of each residence. (e) Both fires were lit at the residences of people with whom the accused had recently had disagreements.

77. I accept, pursuant to the ruling made on 16 December 2024 by Christensen AJ (see DPP v Ayuel [2024] ACTSC 404), that I can so reason. However, I am mindful of the fact that coincidence reasoning is only one component in the overall circumstantial case against the accused.

78. Although, by applying coincidence reasoning in my analysis of the evidence, I have concluded that it is highly likely that one person lit both fires, and that that person was the accused, nevertheless in the end I have been left with a reasonable doubt about whether it was the accused who lit the first fire.

79. First, there is no evidence to place the accused at or near the scene of the first fire during the relevant time.

80. Second, there is no forensic evidence to say how the first fire was lit or whether an accelerant was used.

81. Third, there are a number of other possibilities about the cause of the first fire, which I cannot exclude. Numerous people were coming and going at all hours of the day and night at the residence at 48 Dulcie Crescent. At least one nearby neighbour had recently fallen out with the occupants of 48 Dulcie Crescent and at least one unknown person had texted threateningly to Ms Makoi in the two weeks prior to the fire.

82. It is apparent that there was no shortage of other people nearby with whom Ms Makoi and/or her partner at had disagreements.

83. It is for that reason that I cannot exclude the possibility that it was an unknown person who lit the first fire (Count 1).

84. The evidence in respect of Count 2 is much stronger.

85. Jessica Dillon lived in Unit 3 on the ground floor of the units at 29 Gussey Street. At about 11:30pm on the night of 10 September 2023, she heard a commotion outside. Two people were arguing in a different language. One person came out to ask them to be quiet. That person spoke English.

86. The disturbance went on for about 20 minutes. A little later, Ms Dillon heard the building’s fire alarm go off and went outside. The hallway was thick with smoke.

87. Claire Minnis was staying with her mother, Linsay, Vincent at Unit 8/29 Gussey Street on the night of 10 September 2023. That unit is directly opposite the accused’s unit on the upper floor of the building. Shortly after 12:39am on the morning of 11 September 2023, after the smoke alarm had been activated in the building, Ms Minnis phoned the police.

88. Less than one hour before that, Constable Mollenido had been tasked to attend the disturbance outside Units 6 and 8 at 29 Gussey Street. At that time, he had spoken to Ms Vincent and the accused. When he had spoken with the accused, he had observed that she appeared to be under the influence of alcohol or some other substance. He also observed a pile of clothes just inside the entry to Unit 6. The accused told him that she was doing laundry. He told her to keep the noise down and left the units at 11:58pm.

89. Constable Mollenido was again tasked to return to Unit 8 after the fire was reported approximately an hour later. At this time, he observed the accused. He noticed that the floor outside the unit was covered with a white powdery substance and that the substance also appeared to be on her hands. He asked her what it was, to which the accused responded “I opened the door and it’s the stuff that’s been put there”. The accused was asked to participate in a record of interview later on 11 September 2023 and declined.

90. The evidence contained in the agreed facts set out earlier herein, together with photographs of the damage to the door in Unit 6, are also relevant to my findings in respect of this count.

91. Notwithstanding the accused’s submissions that there was no evidence of the distance between Unit 6 and Unit 8, the photographs tended show the relative proximity of both units to each other. It is plain that they were only metres apart, and I so find.

92. I am satisfied beyond reasonable doubt, on the basis of the whole of the evidence, that it was the accused who lit the fire outside Unit 6 on 11 September 2023 (Count 2).

93. The accused was highly intoxicated that evening and, in that state, she had had an altercation with Ms Vincent less than one hour before the fire. She had the opportunity, the means and the motive, and she was arrested at the unit shortly after the fire. At that time, she had a white powdery substance on her hands similar to the white powdery substance which Constable Mollenido saw on the ground outside Units 6 and 8 immediately after the fire.

94. Common sense dictates that it was the accused who lit that second fire. I am satisfied beyond reasonable doubt that she did so.

Verdicts

95. In the light of these reasons, I record the following verdicts: (1) Count 1 (CAN 11044/2023): Not guilty. (2) Count 2 (SC CAN 150/2024): Guilty.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: