• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Williams Citation: [2024] ACTSC 160 Hearing Dates: 4 – 8 December 2023 Last Submissions: 14 March 2024 Decision Date: 24 May 2024 Before: Taylor J Decision: See [236]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge-alone verdict – arson – possess knife – resist territory official – trespass – consideration of verdict of not guilty by way of mental impairment – circumstantial case – reasonable hypothesis consistent with innocence not excluded by the prosecution – not guilty on arson, obstruct and possess knife offences – trespass offence admitted – agreement between experts that the accused suffered from schizophrenia – satisfied on the balance of probabilities that the accused had a mental impairment – special verdict of not guilty because of mental impairment on trespass offence – accused discharged absolutely pursuant to s 20BJ(4) of the Crimes Act 1914 (Cth) Legislation Cited: Crimes Act 1900 (ACT), ss 321, 382(1) Crimes Act 1914 (Cth), s 20BJ Criminal Code 2002 (ACT), ss 18(2), 22, 20(4), 27, 28, 29, 404(1) Criminal Code Act 1995 (Cth), s 7.3, ch 2 Criminal Procedure Act 1986 (NSW), s 133(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 68 Evidence Act 1995 (NSW), ss 165B Evidence Act 2011 (ACT), ss 165, 191 Magistrates Court Act 1930 (ACT), ss 88B Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 5A, 11 Supreme Court Act 1933 (ACT), ss 68B, 68C(2), 68D, 68E Cases Cited: Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 DPP v Kakar [2023] ACTSC 236 R v Doolan [2001] ACTSC 69 R v Falconer [1990] HCA 49; 171 CLR 30 R v Islam [2011] ACTSC 32 R v Jackson [2021] ACTSC 120 R v Mason [2019] ACTSC 161 R v Smith [2012] ACTSC 146; 269 FLR 233 R v Steurer [2009] ACTSC 150; 3 ACTLR 272 Reeves v R; R v Reeves [2013] NSWCCA 34; 227 A Crim R 444 Ward v Richardson [2021] ACTSC 130 Wilson v State of New South Wales [2010] NSWCA 333; 278 ALR 74 Parties: Director of Public Prosecutions (Crown) Jesse Dean Williams (Accused) Representation: Counsel M Dyason (DPP) K Lee (Accused) Solicitors ACT Director of Public Prosecutions Hugo Law Group (Accused) File Numbers: SCC 348 of 2022 SCC 349 of 2022 TAYLOR J: Introduction

1. This is a trial by judge alone after the accused, Jesse Dean Williams signed an election on 18 July 2023 to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).

2. The accused has been charged with the following offence on an indictment dated 1 March 2023: (a) Count 1 (CC2022/6811): Arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (the ACT Criminal Code) which carries a maximum penalty of 1500 penalty units, imprisonment for 15 years or both.

3. In addition, three offences have been transferred to this Court pursuant to s 88B of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act): (a) CC2022/6812: Possess knife in a public place without reasonable excuse contrary to s 382(1) of the Crimes Act 1900 (ACT) (the ACT Crimes Act) which carries a maximum penalty of 10 penalty units, imprisonment for 6 months or both; and (b) CC2022/6813: Resist a territory public official contrary to s 361(1) of the ACT Criminal Code which carries a maximum penalty of 200 penalty units, imprisonment for 2 years or both; and (c) CC2022/8328: Trespass on premises without reasonable excuse contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Public Order Act) which carries a maximum penalty of a fine of not more than 10 penalty units.

4. Section 68D of the Supreme Court Act requires that the Court deal with any backup or related offences with which the accused has been charged if it is in the interests of justice. Section 68E of the Supreme Court Act requires that a related charge be dealt with by the trial judge on the basis only of the evidence given at the trial on the indictable offence in the same proceeding. I consider it to be in the interests of justice to deal with the related charges as part of the trial in relation to the arson and the parties did not submit to the contrary.

5. The prosecution invited me at the end of all the evidence to dismiss the charge of possessing a knife, conceding the evidence did not establish beyond reasonable doubt that the accused possessed a knife. I agree with that submission. Accordingly, CC2022/6812 will be dismissed.

6. As will become clear, after carefully considering the evidence, I am not satisfied beyond reasonable doubt that the offence of arson has been made out. The accused is entitled to an acquittal on Count 1 on the indictment. Further, I am not satisfied beyond reasonable doubt that a lawful arrest of the accused had been effected when he engaged in conduct constituting the offence of resist territory public official. Accordingly, CC2022/6813 will be dismissed. The elements of the remaining trespass charge have been established beyond reasonable doubt, the consequence of which is the entry of a special verdict and an order releasing the accused absolutely in relation to the fine only offence. The proceedings

7. On 5 December 2023 the trial commenced after the accused was arraigned. The accused pleaded not guilty to the arson offence. Mr Lee, for the accused, indicated that if I am satisfied beyond reasonable doubt that the arson offence is proved, the accused relied on s 28 of the ACT Criminal Code to establish that he is not criminally responsible for the offence.

8. This is not the pathway available to an accused who relies upon mental impairment pursuant to s 321 of the ACT Crimes Act. In matters where mental impairment is relied upon to deny criminal responsibility a plea of not guilty because of mental impairment can be entered pursuant to s 321 of the ACT Crimes Act at the outset of the proceedings. In those circumstances there is commonly substantial agreement as to the facts and circumstances that establish the elements of the offence and the Court “must enter a special verdict that the person is not guilty of the offence because of mental impairment if the court considers the verdict appropriate and the prosecution agrees to the entering of the verdict”: s 321(2) of the ACT Crimes Act.

9. Here the accused enters a plea of not guilty, requiring the prosecution to establish each element of the offences beyond reasonable doubt. There is no prohibition on the accused approaching the matter in this way, nor any inconsistency in the position adopted by the accused. His plea of not guilty requires the prosecution to prove each element of the offence to the requisite standard. If the prosecution is successful in doing so, the accused raises mental impairment to deny criminal responsibility for the offence the prosecution has otherwise successfully established.

10. The ability to test the prosecution case is clearly not lost to an accused person who also seeks to rely on the existence of mental impairment at the time of the alleged offending to deny criminal responsibility. The establishment of a mental impairment that may provide a basis to deny criminal responsibility does not, in the face of a plea of not guilty, relieve the prosecution of the requirement to prove each element of an offence beyond reasonable doubt. Where the prosecution cannot discharge that burden, an accused, including one who may have sought to rely on mental impairment, is entitled to an acquittal.

11. Section 28(1) of the ACT Criminal Code provides: (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that— (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct. …

12. I note here that Chapter 2 of the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code), which sets out the general principles of criminal responsibility, applies to the Public Order Act offence (the trespass offence): s 5A of the Public Order Act. The provisions in the Commonwealth Criminal Code in relation to mental impairment and criminal responsibility are in almost exactly the same terms insofar as the test for determining criminal responsibility where mental impairment is raised, the assessment of the existence of a fault element, and the requirement to return a special verdict if satisfied an accused is not criminally responsible for the offence only because of a mental impairment: see sub-ss 7.3(1), (6) and (5) of the Commonwealth Criminal Code.

13. At the outset of the trial, the prosecution accepted that if I am satisfied that the offence of arson is proved, the “appropriate” outcome is the entry of a “special verdict” of not guilty by reason of mental impairment. Indeed s 28(7) appears to dictate as much, providing: … (7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must— (a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or (b) for any other offence—find the person not guilty of the offence because of mental impairment.

14. Implicit in the position adopted by the prosecution is an acceptance that the accused was mentally impaired at the time of the offending as defined by s 27 of the ACT Criminal Code and s 7.3 of the Commonwealth Criminal Code and further, that the mental impairment had an effect contemplated by sub-ss 28(1)(a), (b) or (c) of the ACT Criminal Code and sub-ss 7.3(1)(a), (b) or (c) of the Commonwealth Criminal Code. The prosecution did not challenge any of the material relied upon to establish that the accused was mentally impaired at the time of the offending.

15. On 7 December 2023 I retired to consider my verdicts. The parties were directed to file and serve submissions. A final set of supplementary submissions was filed and served on 14 March 2024. I received further clarification from the parties as to the elements of the offences on 2 May 2024.

16. As I have already observed, this is not a matter where the accused has entered his plea of not guilty pursuant to s 321 of the ACT Crimes Act and so, it has no application. In R v Jackson [2021] ACTSC 120 (Jackson) Mossop J took the same approach where an accused similarly required the prosecution to establish the elements of the offence, observing at [3]-[4]: 3. At the commencement of the trial there was an issue as to whether or not it was open to the accused to contest whether or not elements of the charge were made out in circumstances where s 321 of the Crimes Act applied. Section 321 applies “if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court”. Section 322 of the Crimes Act relates to the explanation that needs to be given to a jury if “evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment”. When read in the context of s 322, it is clear that s 321 only covers the limited circumstances in which the entry of a special verdict with the agreement of the prosecution will resolve the issues that need to be determined in the proceedings. In such a case, the need for a trial is avoided. As the subsequent section, s 322, makes clear, the operation of s 28 of the Criminal Code may be raised in a trial so that if the jury is satisfied that the offence is otherwise proven, it may still return the special verdict of not guilty because of mental impairment. That must also be the case in a trial by judge alone. Even though trial by judge alone is not mentioned in s 321 or s 322, that is only because it must have been assumed that a judge sitting alone could work out the legal and practical consequences of a verdict of not guilty by reason of mental impairment, as distinct from a verdict of guilty or not guilty. There was therefore no need to include a provision such as s 322 about the directions that must be given. 4. In a case in which an accused person wished to contend that the Crown cannot prove one or more elements of the offence but, if the elements were proven beyond reasonable doubt, then wished to contend that a verdict of not guilty by reason of mental impairment should be entered, the appropriate course was to enter a plea of not guilty, rather than attempt to deal with the matter within the scope of s 321 of the Crimes Act. Because of the position adopted by the accused, s 321 had no application in this case.

17. Accordingly, I approach this matter on the basis that I am required to direct myself as I would in any other criminal trial.

Criminal trial directions

18. I am required pursuant to s 68C(2) of the Supreme Court Act to set out: (a) the principles of law applied; and (b) the findings of fact which I make.

19. I must also take into account any warning or direction to be given, or comment to be made, that would have been made to a jury in the proceedings had the matter proceeded before a jury: s 68C(3).

20. Annexed to these reasons at “A” are the directions I have given myself in this trial.

21. The accused sought a warning pursuant to s 165 of the Evidence Act 2011 (ACT) (the Evidence Act) regarding a comment allegedly made by the accused to a witness, Mr Coric, at a point close in time to the alleged offending. The remark to Mr Coric was characterised by the prosecution as “premeditory (sic) admissions or an insight into the intention of the accused”. There was an issue raised by the prosecution as to whether a direction under s 165 of the Evidence Act was appropriate with respect to admissions said to have been made by the accused. Section 165 relevantly provides: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: … (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; … (2) If there is a jury and a party requests, the judge must— (a) warn the jury that the evidence may be unreliable; and (b) tell the jury about matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. …

22. The accused submitted that a s 165 warning is applicable to judge-alone trials, relying on s 68C(3) of the Supreme Court Act: … (3) In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.

23. While not strictly opposing the warning sought, the prosecution submitted that s 165 did not apply because these were not proceedings being conducted before a jury citing sub-s (2): “if there is a jury”. In a proceeding without a jury, the prosecution contended that the content of any warning required to be given is a matter for the common law, citing th Odgers’ Uniform Evidence Law (Odgers’), 15 ed at [EA.165.150], where it is recorded that s 165(2) of the Evidence Act only applies in a proceeding with a jury, and that it would “generally follow” that if there is no jury, then the warning required is a matter for the common law, citing Reeves v R; R v Reeves [2013] NSWCCA 34; 227 A Crim R 444 at [418] (Reeves).

The role of mental impairment in determining whether the prosecution has established the elements of the offence

27. Section 29(1) of the ACT Criminal Code and s 7.3 of the Commonwealth Criminal Code provide: (1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

28. As Baker J observed in DPP v Kakar [2023] ACTSC 236 (Kakar) at [136] “the relationship between mental impairment, fault elements and voluntariness is complex: see Jackson at [113]-[122]”. Jackson similarly captures the complexity involved when assessing a fault element which necessarily involves an “enquiry into the state of mind of the accused”: at [121]. In Jackson, having determined that the prosecution had established beyond reasonable doubt that the accused had “intentionally” lit a fire and the fire had caused damage, his Honour was required to determine whether the accused was reckless about causing the damage. Justice Mossop carefully articulated the difficulty involved in assessing recklessness, being the state of mind of the accused, without reference to the accused’s mental impairment observing at [121], “it will be an unusual case in which there are circumstances which do not involve a consideration of the mental impairment” before concluding “the matters pointed to in the present case were so intimately related to the accused’s state of mind that, for the purposes of s 29, they cannot be disentangled from her mental impairment”. Ultimately, being satisfied on the balance of probabilities that the accused was suffering a mental impairment that had one of the effects contemplated by s 28, the consequence of which was the entry of a special verdict, Mossop J did not definitively determine the question of recklessness.

29. The complexities involved can be seen in the nuanced variations in the approach this Court has taken to an assessment of whether a fault element has been established in circumstances where mental impairment has been raised: see R v Steurer [2009] ACTSC 150; 3 ACTLR 272, R v Smith [2012] ACTSC 146; 269 FLR 233, and R v Mason [2019] ACTSC 161.

30. In R v Islam [2011] ACTSC 32 Matthews AJ approached mental impairment on the basis that both the physical and fault elements of the offence must be proved beyond reasonable doubt before the requirement to consider mental impairment, and whether it had one of the effects in s 28(1) of the ACT Criminal Code, arises. Her Honour was not satisfied the accused had the requisite intention to kill and so acquitted the accused of attempted murder. While the accused’s conduct was carefully assessed as part of the assessment of the prosecution case on attempted murder, there was no consideration of the influence of any “mental impairment” on the accused’s capacity to have formed the relevant intention. On the charge of intentionally inflicting grievous bodily harm the accused was found not to be mentally impaired at the time of the offending and was convicted of that offence. The parties in this matter agreed that the approach in Islam is the approach that should be taken in this matter.

Summary of the prosecution case

43. The parties agreed a number of facts at the outset of the trial pursuant to s 191 of the Evidence Act, which are as follows: (a) On 6 July 2022, Jesse Dean Williams (the ‘accused’) resided at 16 Dowling Street, Watson which is a single storey, three-bedroom brick veneer house owned by the ACT Government and managed by CatholicCare Canberra and Goulburn (the ‘premises’). (b) On that date, a fire started in the premises, causing extensive damage to the property. (c) The premises is part of the Justice Housing Program (JHP) which is subcontracted through CatholicCare. (d) As of 6 July 2022, the premises were leased to the accused, Mr Massey and Mr Incezdi. (e) The accused had been residing at the premises for approximately one month prior to the incident occurring. (f) At or about 11:37AM, Mr Coric arrived at the premises in a blue flat-bed tow truck. He exited the vehicle and walked up the driveway of the premises. (g) At or about 11:43AM, Mr Coric walks back down the driveway with a large red fuel cannister and takes it to his truck. (h) At about 11:44AM, a silver-coloured Holden station wagon reverses down the driveway of the premises. [Redacted], the accused’s partner, was in the car at the time. (i) Shortly after, the accused walked down the driveway on foot wearing sunglasses on his head, a navy hooded jumper, navy jacket and dark pants. (j) The accused then walked over to Mr Coric and had a conversation with him. (k) The accused then walked along the driveway back toward the premises before entering the house. (l) Mr Coric then drove away in the flatbed tow truck and left the scene. (m) The accused then left the premises via the driveway with a hood pulled over his head and continued westbound down Dowling Street. (n) The accused then walks around the corner, northbound, and passes [redacted]’s Australia Post bike, wearing the same clothes and no shoes. (o) The accused then turns to walk eastbound along Dowling Street in the direction of [redacted] Dowling Street, Watson. (p) The accused then entered the back yard of [redacted] Dowling Street and entered a shed in the back yard, where he deposited his jacket, grey pants and clear framed sunglasses inside a brick pizza oven. (q) These were the clothes being worn by the accused during his conversation with Mr Coric and those he was wearing when leaving the premises. (r) The accused was observed by Ms Johnson walking between the house and the garage of [redacted] Dowling Street and then continuing westbound, away from the vicinity of [redacted] Dowling Street, toward the greenbelt where the accused was ultimately discovered by police. (s) The accused made his way down the road to a nearby green belt where he began rummaging around a raised patch of dirt with his bare hands. (t) Acting Sergeant Christopher Higgins drove down Dowling Street with Constable Paige Grant. Constable Grant observed the accused across the greenbelt between Dowling Street and Jordan Place, Watson. (u) Acting Sergeant Higgins drove onto the greenbelt and stopped behind the accused, alighted from his police vehicle and approached the accused who was wearing a blue hooded sweater, green pants cut-off at the knees and no shoes. (v) The accused was told to put his hands behind his back. The accused then questioned why he had to do this. Acting Sergeant Higgins started to explain that the accused was being placed under arrest, as he did this the accused turned and started to run away. Acting Sergeant Higgins reached out and grabbed the clothing of the accused, catching his ring finger in the clothing and ultimately fracturing his finger. (w) Acting Sergeant Higgins and Constable Grant gave chase and were joined by Constables Mickelson and Wright. Constable Mickelson yelled for the accused to stop and get on the ground. The accused stopped and laid face-down on the road and was arrested on suspicion of arson and he was cautioned. (x) The accused was then placed under arrest where evidence bags were secured around his hands and wrists, and he was placed in handcuffs to the back. (y) The following items were seized by the informant at the Watch House and recorded in Property Seizure Record (PSR) 529608: (i) Paper bags from the left and right hands; and (ii) Black hooded jumper; and (iii) Green shorts. (z) The accused had, in his possession, the following items at the time of arrest which were seized by Constable Robert Wright and were recorded in PSR 522670: (i) A blue Bic branded cigarette lighter; and (ii) A blue, white and green camouflage printed cigarette lighter; and (iii) A red bottle cap. (aa) Constable Grant went back to the location where police first observed the accused near [redacted] Jordan Place, Watson. She observed a patch of disturbed earth and a piece of blue cloth protruding from the ground. (bb) Constable Grant observed a cigarette lighter on the ground and found a large silver knife in the ground. (cc) The following items were ultimately recovered and seized by Constable Andrew Bishop and recorded in PSR 522671: (i) a large silver knife; and (ii) a blue rag; and (iii) a black sheath for a knife; and (iv) a packet of matches; and (v) a yellow cigarette lighter. (dd) Ms Murdoch resides at [redacted] Dowling Street, Watson. On the morning of Thursday, 7 July 2022 at approximately 7:20AM, Ms Murdoch looked through her back window and noticed that the door to the shed in the backyard was open. The door to the shed is usually closed and secured with a bolt but no lock. (ee) At approximately 8:30AM, Ms Murdoch went to the shed to close the door and looked inside the shed which is usually “pretty empty”. Upon looking in the shed, Ms Murdoch discovered clothing, which is now recorded in PSR M523151, in a pizza oven located inside the shed. (ff) This clothing matches the clothes worn by the accused above when leaving the premises, walking along Dowling Street, Watson and then in the direction of [redacted] Dowling Street, Watson. (gg) Constable Jessica Cox attended [redacted] Dowling Street, Watson after a report was made to police by Ms Murdoch. (hh) Constable Cox catalogued and seized the above items and recorded these in PSR 523151. (ii) Upon arrest, the accused was wearing a navy hooded jumper, dark pants which were cut-off at the knees and had discolouration consistent with bleach splatter. (jj) Police, fire and ambulance services were called to the scene at the premises. (kk) Forensic members and Crime Scene Investigators from the AFP attended the scene at the premises. These members were, Crime Scene Investigator Merrilyn Hurst and Search Precinct Examiner Rhiannon Collins. (ll) Significant internal and external damage to the premises was occasioned by the fire. This was observed by investigators and is noted in the report provided by Ms Hurst. (mm) A sketch diagram of the premises was drafted by Ms Hurst (not to scale) depicting room name designations and location of evidentiary markers. (nn) The accused occupied Bedroom One of the premises. (oo) An inspection was conducted by Neil Davis who attended the premises on 7 July 2022 at 3:00PM in the company of the informant. Upon inspection, Mr Davis concluded that there were electrical appliances in the premises.

Summary of evidence

45. I observe here that the evidence in this matter was not contested in significant respects. I have indicated the evidence I have accepted and relied upon as necessary to the determination of factual findings for example, in relation to the evidence of Mr Massey, Mr Coric, [redacted] and Mr Simson. The accused did not challenge the expertise of any of the witnesses called by the prosecution in relation to the nature and extent of the fire. Similarly, evidence from police officers was not the subject of direct challenge as to the truth of the evidence adduced from individual officers. Rather, counsel for the accused carefully approached cross-examination of expert and police witnesses on the basis that it would reveal shortcomings in the investigation, gaps in the prosecution case and limitations on what inferences could be drawn and what facts could be found, from the expert evidence. Unless otherwise stated, I have accepted the evidence from the expert and police witnesses. The real question in relation to much of the evidence adduced in this case was the extent to which it enabled the prosecution to exclude a reasonable hypothesis consistent with innocence, as distinct from whether the evidence was truthful or accurate.

46. I note here that the prosecution did not seek to rely on the conduct of the accused in placing his clothes into the pizza oven or fleeing police as evidence of consciousness of guilt, and I have approached my task in assessing the evidence consistent with that position.

Mr Massey

47. Mr Massey gave evidence that in July 2022 he was living at 16 Dowling Street, Watson, having been placed there by JHP. Living there with Mr Massey was Mr Incezdi and the accused. Mr Massey was in the ‘main bedroom’ of the house. Using the diagram drawn by expert Ms Hurst in her report, included in Exhibit P1, Mr Massey identified his bedroom as ‘Bedroom Three’. The accused, Mr Massey said, was in ‘Bedroom One’. Mr Massey recalled that he learnt of the fire at the premises through a text message he was sent from one of the JHP workers who he identified as “[Mr Simson]”, telling him there had been a fire. Mr Massey specifically recalled that he was in the kitchen of his partner’s residence in Moncrieff when he received the text message. He did not recall the date but he knew the day he learnt of the fire was the same day the fire occurred.

48. Mr Massey said he was at the house the night before and as he was subject to a curfew, he had to be there from 8:00PM to 6:00AM. He said he was “madly in love” with his partner at the time and everyday as soon as 6:00AM came he was out of the house. He could not recall whether anyone else was in the house the night before, frankly admitting that he was using ice at the time. He did not recall how he left the house that morning saying it could have been a lift with a friend or an ‘Uber’. He could not say from what door he left the house.

49. Mr Massey said his room was neat and tidy and that his bed would have been made. He had a basic room with a television, a double bed, a bar fridge and a chest of drawers. He described the bed as being on a low frame.

50. Mr Massey could not recall the lounge room furniture but thought it might have had a lounge. He said he was using the house for parole, and he was not there very much. He said, “it was all pretty basic”.

51. The front door and all the bedroom doors had an electronic keypad. He said he always made sure his room was locked as he did not want anyone else going in there. His partner had previously come to the house on occasion and he recalled her being there one time when he had to collect parole papers. He said she was never there without him, and she had never stayed the night there with him.

52. Mr Massey agreed that he knew the accused and that he had been into the accused’s room. He said the room was very messy with clothes everywhere.

53. Mr Massey said the heater in his own room was electric with a “bar” or a “rod” that would glow red when it was turned on. He considered that the heater was “dangerous”. He thought the accused had the same heater and perhaps he had even borrowed it from the accused. He was not sure if he had returned the heater to the accused. He did not think the heater had a protective grate on it. He said he tried to remember not to leave the heater on. He described thinking to himself, “did I leave the heater on?”, when he received the message that there had been a fire at the house.

Mr Coric

57. Mr Coric gave evidence that on 6 July 2022 he was working as a tow-truck driver. On that morning he described receiving a call from [redacted] who had he known for some years. [redacted] told him she was having an argument with her boyfriend, the accused, and asked him to come over.

58. Mr Coric said he had met the accused some weeks earlier and that the accused had helped him do a roofing job. He described going to an address in Watson, going to the backyard and seeing [redacted].

59. He said [redacted] said something to him about the accused and her having an argument and she wanted to get out of there. Mr Coric said the accused was inside. [Redacted] gave him a petrol tank or a “fuel cell” from her car that he had paid for at an earlier time and he put it in his truck which was parked at the front of the house. [Redacted] left the house. Mr Coric said while he was there, [redacted] did not go into the house. She told him that it was “just Jesse” inside the house.

60. Mr Coric recalled a conversation with the accused outside the premises. He said they started talking about work because the accused was to continue helping him with a roofing job. He observed the accused to be “a bit heated” and “a bit angry”. Mr Coric said he told him to calm down. He said the accused said he was “really angry” but did not say why he was angry. He described the accused as “frustrated”.

61. Mr Coric described the accused telling him that “he was going to burn the house down” and that he was “over [redacted]” which he understood to be a reference to [redacted]. Mr Coric said he tried to calm him down and they then moved to talk about other things. He thought the conversation lasted about 5 or 10 minutes. He said the comment about burning the house down came before he was able to calm the accused down. Mr Coric said the accused only made the comment once.

62. Mr Coric said that by the end of the conversation the accused’s responses were normal and he could follow what he was saying. Mr Coric said he shook hands with the accused and said, “I’ll see you on Saturday”, then got in his truck and left.

63. Mr Coric agreed he spoke to First Constable Powyer a couple of days after the incident on 8 July 2022. Mr Coric said his recollection as at the time of giving evidence was “alright” but that when he spoke to police after the incident, he remembered everything except the fuel cell.

64. Mr Coric said he now did not recall the accused saying that “he was going to kill himself” before he said he was going to burn the house down but accepted that is what he told police on 8 July 2022.

65. In cross-examination, he agreed that when he spoke to police, he did not tell them he had asked [redacted] who was inside, because he only knew that the accused was inside and did not know who else was inside. He agreed he did not go inside the house and would not have known who was there. He agreed [redacted] left in a station wagon and that she was by herself in that vehicle.

Mr Simson

89. Mr Simson was employed by CatholicCare as a case worker for the JHP for people coming out of prison who needed to access accommodation. He said those accessing the JHP did not have any other accommodation and were often on parole or otherwise released from custody. As part of his role he managed four JHP properties, one of which was 16 Dowling Street, Watson. He interacted with the residents at that property who were the accused, Mr Incezdi and Mr Massey. His role included the development of case plans and support for the residents. He would attend the property often; if not every day, then every second day and would go inside almost every time he attended the property. He said this was balanced with a degree of privacy and the views of the residents.

90. He agreed that the accused’s bedroom was messy, with clothes strewn everywhere. He said there was one occasion where he looked into the accused’s bedroom and observed that a heater had been left turned on. The heater had a nylon jacket on it. He said he considered this to be a fire risk and that he turned the heater off. He agreed he told police it was hot. He agreed he told police he raised this with the accused and that the accused was not receptive to the interaction. He agreed his impression was that he didn’t know if the accused was taking on board what he was saying. While he could not specifically remember the interaction, he agreed that it was what he told police, and he had some memory of it occurring. Mr Simson agreed it was possible there was more than one heater in the accused’s bedroom.

91. On the day of the fire, he learnt of it when he attended the property and saw that police were at the premises. He agreed that he contacted Mr Massey and gave him news of the fire.

92. He described Mr Massey as “dropping off a bit” prior to 6 July 2022 and Mr Incezdi as having “really dropped off” in terms of accessing support through the program. He said this had reached the point where there was consideration of Mr Incezdi being exited from the program. He agreed he told police that prior to 6 July he had not seen Mr Incezdi for “weeks and weeks”. Mr Simson described the accused as accessing some supports and that he had taken the accused to some appointments. He could not recall describing the accused as being at the house all the time. He agreed at the time he gave his statement to police on 7 July his memory of events in the lead up to 6 July was more accurate than his memory while giving evidence. Mr Simson was aware that all three residents had been released from custody to the accommodation. He agreed he told police that the accused had been at the residence for about a month when the fire occurred.

93. He accepted that while he had not seen Mr Incezdi for many weeks as of 7 July, this did not mean that Mr Incezdi was not ever at the premises, because there were days he himself did not attend the premises. He said he was not aware of the accused having any other accommodation available to him. The accused’s bedroom contained his belongings. Mr Simson was aware that the accused had what he described as “drug issues”.

Ms Hurst – Crime Scene Investigator

96. In July 2022 Ms Hurst was a Crime Scene Investigator with ACT Policing. On 7 July 2022 she attended the fire at 16 Dowling Street, Watson and prepared a report that formed part of the prosecution tender bundle (Exhibit P1). Ms Hurst clarified that the numerous photos included in her report were not taken by her but by another Crime Scene Investigator at her direction. The report also included summaries of notes she made at the scene.

97. Ms Hurst observed that the least amount of fire damage was occasioned to the external front and western walls of the premises, that there was moderate fire damage to the northern wall and the most damage to the eastern wall. The windowpane to the toilet window was damaged, with thermal ‘crazing’ consistent with heat damage observed. Smoke staining was observed around the upper frame. She considered that the staining was consistent with the windows being closed at the time of the fire.

98. Damage was observed on the front entrance doors, which were open at the time of examination and which Ms Hurst considered was consistent with forced entry. There was minimal smoke staining, consistent with the doors being closed at the time of the fire. The windows in the kitchen were thermally crazed but still intact, with minimal smoke staining indicating the windows were closed at the time of the fire. There were holes observed in the roof tiles near the kitchen. Fire patterns found in the laundry were also consistent with the windows being closed at the time of the fire. A paint can and a bottle of methylated spirits were found in the recycling bin at the property.

99. Smoke staining was observed around the entry door to the laundry, consistent with the internal door being open at the time of the fire. There was also smoke staining around the living area windows consistent with them being closed and intact at the time of the fire. The window into the bedroom at the rear of the premises had some damage and thermal crazing and there was smoke damage to the surrounding timber, consistent with the window being open at the time of the fire. There was glass on the ground which was smoke stained and thermally damaged. There was no indication the window had been broken prior to the fire. A fingerprint examination was conducted on the windows.

100. Minimal smoke staining and thermal crazing was observed around the windows in the eastern bedroom, consistent with them being closed at the time of the fire. The greatest external fire damage was observed in this window. The timber frame was charred, and melted glass fragments remained in the pane. Some glass had fallen onto the ground underneath the window and was thermally damaged. The eaves and adjacent fence also had fire damage. The external metal flyscreen had come off and had some minimal smoke damage. There was no evidence to indicate the window has been damaged prior to the fire.

101. The least damage was to the western end of the premises, with moderate damage to the rear centre and the greatest internal damage to the bedroom in the southeastern corner. There was some smoke and other heat damage in the rest of the house, including the kitchen. There was smoke damage in the laundry (in the north-western corner), and smoke and heat damage in the living room.

David Bremers – ACT Fire and Rescue Incident Commander

113. Mr Bremers attended the fire with ACT Fire and Rescue and later prepared an incident report and handover form, with the investigation subsequently handed over to the AFP after the fire was treated as undetermined. While he identified a point of origin, the cause and nature could not be determined.

114. In his report, Mr Bremers detailed that as he was arriving on the scene, he observed smoke of a darker colour, indicating a house fire. At the house, fire crews observed a working fire on one corner of the house. There was an increasing amount of smoke coming from the house and roof. The fire was contained and put out by fire crews.

115. There was an “obvious” burn mark observed on the wall of the corner bedroom, which was initially identified as the point of origin of the fire. The bed was observed to be proximate to the point of origin. The report included photographs of the damaged interior of the house and the identified point of origin.

116. He gave evidence that there was a “well involved fire” at the time he attended. The indicators of this were large flames from the right-hand side of the premises and smoke coming through the roof tiles.

117. Mr Bremers gave evidence that his skills as a Level One fire investigator were limited to investigating fires that are contained within the room of origin. He identified the room of the origin of the fire as Bedroom One, with the place of origin being near the mattress.

118. Mr Bremers clarified that the time of 12:01:12PM in this form is a reference to the time the call about the fire was made, not a reference to the time the fire started. He stated that only a Level Two fire investigator has the skills to identify the time of a fire. Further, identifying the actual source of the fire is outside of his scope of a Level One investigator, but he considered it to be proximate to the mattress in Bedroom One.

119. Mr Bremers agreed that generally, overloaded power boards and items left too close to a heater can cause a fire risk. He agreed that mattresses generally have a high “fuel load”.

120. Mr Bremers gave evidence that different stages of a fire include first ignition through to the developing fire, flashover, a fully developed fire and then a period of decay. Based on his level of investigation, he could not make a determination on how long each stage went for in this fire.

121. Mr Bremers agreed that different factors can impact the capacity for smoke to become apparent outside a structure. These factors could include ventilation, the weather, the size of the room and the location of the room inside a structure. He agreed that the appearance of smoke outside a structure is not always a reliable indicator of the time of the ignition of the fire.

122. Mr Bremers explained that there are fire control and smoke segregation items such as a door seal that might impact the movement of smoke. There was no evidence that this structure did or did not have those kinds of items fitted.

Mr Davis – Electrical inspector for Access Canberra

123. Mr Davis attended 16 Dowling Street, Watson on 7 July 2022. Part of his role is to attend after a fire and assist the AFP forensic investigation with anything of an electrical technical nature. He has expertise in relation to determining electrical faults. His role includes making observations and examining electrical items at the scene. He explained that he examines wiring that may have shorted out or overheated which would then cause abnormal heating in the vicinity if that was the point of origin for the fire.

124. Mr Davis observed in Bedroom One that there was a fridge, a jug, a heater, and a double socket outlet. It could not be determined if the outlets were switched on. The double socket outlet had a lamp and power board plugged into it. Mr Davis found no evidence of overheating or shorting at the socket outlet. The lamp and power board were too badly damaged to make any determination. From the power board, there was an extension lead to another power board on the same wall in the opposite corner of the bedroom. This second power board had the fridge and jug plugged into it. There was also a heater near the second power board, however the lead was too badly damaged to ascertain if it was originally plugged into the power board. These appliances were badly damaged by the fire, and accordingly could not yield evidence of an electrical fault.

125. Mr Davis described that Bedroom Two had fire pattern damage to the underside of the roof trusses and batons in the centre of the room. There was a light fitting near this area, which was badly damaged by the fire, and accordingly, no evidence of electrical fault could be found.

126. The internal switchboard had been upgraded to residual current device protection of the sub circuits. Three of the sub circuits were tripped, however due to smoke damage, Mr Davis was unable to determine what circuits they controlled.

127. Mr Davis stated that a fire might ignite from a bar heater due to items making contact with the heater if it was on. He provided examples of that kind of heater tipping over and touching something flammable that ignited, or a flammable item being placed on it and igniting. He said he was not an expert on bar heaters, but that he understands they sometimes have a safety feature where if they reach a certain point in temperature or tip over, they automatically switch off. He agreed he did not have the expertise to speak to an item’s capacity to ignite where it was not physically touching the heater.

128. He confirmed his report identifies that there was no evidence of an electrical fault. He agreed this opinion does not rule out an electrical fault as the source of the fire. Mr Davis explained that incidents where electrical fault could be entirely ruled out are very rare because of the impact of fire damage on the capacity to collect evidence and make determinations. He agreed that his sketch site layout may not list every single electrical item in the room and that it is entirely possible there were electrical items in the room not included in his report.

Constable Robert Wright

129. On July 2022 Constable Wright was working with Constable Samuel Mickelson. He heard a radio transmission and went to 16 Dowling Street, Watson around midday. When he arrived, he observed flames and smoke from the right-hand side of the house. He attended the rear of the residence and knocked on the windows. There was no response to those efforts. Shortly after, ACT Ambulance attended. People had begun to mill about, and he had a conversation with an Australia Post worker. The worker said he was delivering mail when he saw a tow truck and a vehicle leave the house and he saw a male walking away from the house and moments later saw smoke coming from the right side of the house.

130. Constable Wright described hearing another police radio about the man who had left the house and that he was now in a foot pursuit on the green belt on Dowling Street. He then observed a man running away from two AFP members about 50 meters away. Constable Wright gave chase and eventually approached the man who he later learned was the accused. Constable Wright observed black ash on the accused’s hands and that he smelt of smoke. He said the smoke smelt like a bonfire rather than a cigarette. Constable Mikelson arrested the accused, and a search was conducted of him. He was placed in a caged vehicle and transported to the ACT Watch House.

131. He recalled that the accused stopped voluntarily when he was pursued and laid face down on the ground and was then arrested. He agreed he could be wrong about the observation of “ash” on the accused’s hands. He made notes in his AFP notebook on the day describing it as a “black ash-like” substance. He did not recall seeing an ash-like substance on the accused’s face but agreed if he had observed as much, he would have recorded it in his notebook and statement. Constable Wright was not aware that prior to his arrest the accused was observed rummaging around in a dirt patch. He agreed he could not say that the substance he observed on the accused’s hands was not dirt.

132. The next day Constables Wright and Cox attended [redacted] Dowling Street after a resident reported finding clothing in their pizza oven in the back shed of their residence. The clothing consisted of a blue coat, green pants, Oakley sunglasses, a grey jumper, blue jeans and a grey-white scarf. The clothing was photographed where it was found in the pizza oven and then seized. Constable Wright did not have his body-worn camera turned on when he did this.

133. Constable Wright agreed that the pizza oven at [redacted] Dowling Street was a used pizza oven and was not clean. He identified the pizza oven in the photos forming part of Exhibit P1. He agreed that the pizza oven did have a black ash-like substance in it when the clothing was found and that the smell of smoke on the accused could have come from having his hands being in the pizza oven when he put his clothes there. He could not recall if he smelt smoke when he went into the shed where the pizza oven was located.

Constable Samuel Mickelson

135. Constable Mikelson was working with Constable Robert Wright on 6 July 2022. He attended the fire with Constable Wright at 16 Dowling Street, Watson and saw fire coming from the house. He got out of the police vehicle and activated his body-worn camera. Neighbours who were out on the street told him no one was home at 16 Dowling Street and that a man had left via the back door a short time before police arrived.

136. A resident, Mr Young, approached Constable Mickelson and told him that he had recently called police to report a suspicious person walking around on Dowling Street. Mr Young told him he had observed the suspicious person come out of 16 Dowling Street after the fire had started. Constable Mickelson heard a radio transmission that a man was running south on Dowling Street, and he saw a man running about 50 meters away with two other police officers in pursuit. Mr Young yelled out, “that’s him”. Constables Wright and Mickelson gave chase and Constable Mickelson yelled out to the accused to stop and he did and laid down on the street.

137. The accused was wearing green three-quarter length pants, a hooded jumper and he had no shoes on his feet. He described the accused as having dirty, grubby hands and soot-like residue around his face. The accused smelt heavily of smoke. He described the smell of smoke as similar to when a person stands near a campfire and the smell of smoke gets into their clothing. Constable Mickelson arrested the accused for arson and cautioned him. Plastic bags were put on the accused’s hands and sealed with evidence tape. The accused was put in a caged police vehicle and transported to the ACT Watch House.

138. The body-worn camera footage from Constable Mickelson was played. The evidence of Constables Wright and Mickelson in terms of what they did and the sequence of their actions upon arrival is consistent with what can be observed on the footage. Constable Mickelson agreed the accused said that he had been kidnapped after he was arrested.

139. He described the substance observed on the accused as “soot like” because he could not say it was in fact, soot. He agreed he made notes of his role and observations on the day. He accepted his notes did not include the observation he says he made about the soot like substance on the accused’s face. He agreed that his description of the accused as smelling like campfire smoke was an analogy that had wood as the fuel for the fire.

First Constable Shelly Powyer

140. First Constable Powyer was the informant in the matter. She was provided a briefing about a house fire at 16 Dowling Street, Watson including that the accused had been arrested for arson. FC Powyer was informed that the accused had been seen 150 meters away from the scene of the fire, digging. She arrived at the ACT Watch House with Constable Polosak to speak with the accused.

141. FC Power said she made a decision to release the accused from custody and informed Acting Sergeant Slocombe that there was not enough evidence to charge him at that stage. The accused was released, and she was provided with items seized during the course of the investigation from the accused. This included a lighter, a red bottle cap and multiple pieces of plastic that had previously been in the accused’s hands.

142. FC Powyer said at 2:41PM on 6 July 2022 she offered the accused an opportunity to participate in a record of interview. He agreed to return the next day to participate in an interview. The accused told her he did not have a mobile phone and that his address was the Watson address. She was informed by another AFP member that certain items were found on the green belt including a knife, sheath, rag, matches, yellow lighter, and tobacco filters and the accused had been observed digging in a garden bed prior to his arrest. The items were seized and provided to her. On 7 July 2022 she spoke to a resident from a neighbouring property, Mr Wong. He provided CCTV footage taken from [redacted] Dowling Street. She obtained dash cam footage from the Australia Post worker who was working in the area on the day.

143. FC Powyer was advised by Acting Sgt Slocombe that the accused had been admitted to hospital on a three-day mental health order after his arrest.

144. She agreed she spoke to Mr Coric and he told her the accused said to him that he wanted to kill himself and that he was going to “burn the house on fire”. Mr Coric told her that he talked to the accused after that and he seemed okay. She did not recall Mr Coric telling her that the accused said something like “he felt like he was burning and he wanted to kill himself but it was the easy way out”.

145. On 11 July 2022 she went to an address in Griffith to speak to [redacted] and she told FC Powyer that she was there with the accused. FC Powyer decided not to have a conversation with [redacted] that day. She did speak to Ms Murdoch, a resident of Dowling Street who owned the pizza oven, and recorded a conversation with her. Ms Murdoch told FC Powyer that she had owned the property for a year and in that time had not used the pizza oven.

146. FC Powyer spoke with [redacted] on 10 August 2022. [redacted] told her that there had been problems with the accused’s heater turning on and off and that the power boards were overloaded all the time. She also told FC Powyer that the day before the fire an item of clothing had been left on the heater and had begun smoking. FC Powyer agreed that [redacted] told her the whole house had been trashed.

CCTV footage

162. Mr Coric can be observed arriving at 16 Dowling Street in a blue tow truck and parking at the front of the property on the street. Mr Coric walks around the side of the house in the direction of the back yard. He can then be seen carrying a red item to his truck. He has a brief interaction at the passenger side door of his truck with a man who walks there from the left side of the house facing it from the street. The man returns around the left side of the house in the direction of the backyard and the blue tow truck is seen to drive away.

163. The person, who I am satisfied is the same man seen interacting with Mr Coric on the CCTV footage, can be seen leaving 16 Dowling Street, Watson around the 11:50 time stamp on the footage. A short time after smoke can be seen coming from the right hand side of the property looking at it from the street.

Statement of Constable Higgins

164. The statement of Constable Higgins attests to the following matters: (a) Constable Higgins attended the scene after hearing a radio transmission about a fire at 16 Dowling Street, Watson. He turned onto Dowling Street off Knox Street and saw a male hunched over a large green bush who appeared to be “rummaging or digging” at the base of the bush. This male was the accused. He made the following observations: that he was Caucasian, wearing a dark blue hooded jumper and dark green knee length shorts, that he was unshaven with black stubble and was barefoot. He parked, turned on his body-worn camera and approached the male. He observed the accused appeared erratic and his speech was rapid. Constable Higgins asked him about some items on the ground and the accused appeared confused. The constable heard a radio transmission about a “suspicious male” who had been seen near the fire and he considered the description of this male matched that of the person he was talking to. He decided to place him under arrest. He asked the accused to take his hands out of his pockets and place them behind his back. When the accused asked, “what for” Constable Higgins said, “because I’m not sure who you are--” and he reached towards him. (b) Constable Higgins’ statement records that he “reached towards the male as I spoke and before I could finish telling him he was under arrest for the suspicion of arson, he started to run”. The constable reached out and grabbed the accused’s left arm and the accused turned, causing Constable Higgins’ finger to twist and fracture. The constable ran after the accused while he informed other officers that he was in a foot chase over radio transmissions. The accused dropped several items as he chased him including cigarettes and what appeared to be a “black sheathed knife”. He was joined by Constables Mickelson and Wright. Constable Mickelson yelled at the male to get on the ground and he complied. He placed him under arrest on suspicion of arson. Constable Higgins asked what his name was. The accused gave several different names. He located the items dropped by the male and pointed them out to other attending police officers. He left the scene a short time later to have his fractured finger attended to at a hospital.

165. I observe here that the version recorded by Constable Higgins in his statement of his interaction with the accused does not entirely fit with what can be observed and heard in the body-worn camera footage of the purported arrest the accused is said to have resisted. I accept it may well be that Constable Higgins determined in his own mind to arrest the accused but he does not begin to tell the accused that he is under arrest for anything. The footage captures Constable Higgins asking the accused to take his hands out of pockets and place them behind his back. The accused complies with the request to take his hands out of his pockets to which Constable Higgins says “cool, just put your hands behind your back”. The accused asks “what for?” and Constable Higgins responds, “cause I’m not sure who you are --”. As the constable begins to say “cause” he can be seen slowly raising what appears to be his right arm toward the accused who is looking somewhat over his left shoulder at Constable Higgins. At the moment the constable says the word “who” the accused immediately begins to run. Constable Higgins is initially successful in grabbing onto the accused who manages to pull free and continue to run from Constable Higgins. Constable Higgins gives chase, determinedly and appropriately so, and the accused is eventually restrained by another police member.

Forensic Report of Kaymann Cho

166. Mr Cho provided a biology court report regarding DNA testing done on various items found within the house and the clothing found in the pizza oven. From the interior of the green pants found in the pizza oven, trace DNA was detected with a mixed DNA profile from a minimum of two individuals obtained. The accused could not be excluded as a contributor. The likelihood ratio was at least 100 billion times more likely if the accused was one of two contributors to the mixed DNA profile than if the profile originated from unknown individuals selected at random from the Australian Caucasian sub-population. The same results and likelihood ratio were obtained from the DNA testing of a blue jacket found inside the pizza oven, and a methylated spirits bottle and cap found at the property.

Textile Damage Report of Forensic Chemist Timothy Simpson

167. Mr Simpson undertook a textile examination of the navy-blue jumper and green shorts in relation to the fire incident at 16 Dowling Street. He was asked to identify any textile damage and if identified, to undertake subsequent comparison to any possible mechanisms. The jumper had minor surface debris and multiple sites of fresh tear damage, which Mr Simpson considered could have been caused by the fabric being caught on or dragged along a sharp pointed object. He hypothesised that the object could have been barbed wire or something similar. There was also some seam separation which he thought might be due to the fabric being pulled.

168. The shorts had multiple areas of colour fade or whitening observed on the front. The photograph depicts a splattered pattern of white spots.

Forensic Chemist Report of Kerrie-Anne Maroney

169. Ms Maroney examined the following items: (a) a pair of green, ‘ANKO’ branded, size L pants; and (b) a navy, ‘TAROCASH’ branded, size XL jacket; and (c) a red plastic bottle cap; and (d) an empty 1L ‘Diggers’ methylated spirits bottle with lid; and (e) an apparently empty 4mL glass vial with lid. This exhibits’ labelling indicated it had once contained a sample of the liquid found in the Methylated Spirits bottle, but had evaporated whilst in storage; and (f) an empty 2L ‘Woolworths Essentials’ bleach (lemon) bottle, without a lid; and (g) a piece of fire-affected carpet with foam underlay; and (h) a quantity of heavily charred, unidentifiable debris; and (i) a 4mL glass vial holding approximately 1mL of pale yellow, transparent liquid; and (j) a bag, appearing empty, categorised as ‘Blank Control’; and (k) a 2L glass bottle holding approximately 600mL of a two-phase liquid, the top layer of which was a pale yellow, cloudy liquid, the bottom layer of which was a dark yellow, cloudy liquid. This was determined to be decanted from the methylated spirit’s bottle.

170. No ignitable liquids were identified on any of the clothing items, the red bottle cap, the fire debris samples or the bleach bottle. It was noted in the report that at the time of receipt, the bag in which the bleach bottle was packaged had a split approximately 10cm long in the bottom commercial seal. It cannot be excluded that the finding of nil ignitable liquids is due to this packaging issue. No ignitable liquids were identified in the control “Cryovac” bag or the reference carpet sample. The liquid collected from the red fuel container was identified as weathered petrol.

171. Ms Maroney believed that the results obtained for the empty ‘Diggers’ methylated spirits bottle, the empty vial once containing a sample of methylated spirits, and the two-phase yellow liquid indicated that the liquid decanted from the methylated spirits bottle was a mixture of an oxygenated product containing ethanol and a miscellaneous ignitable liquid similar to paraffin oil.

Consideration

Has the prosecution established beyond reasonable doubt that the accused lit the fire?

172. For the reasons that follow, the prosecution has not established beyond reasonable doubt that the accused lit the fire or if he did have some part in the fire igniting, that he did so deliberately. Accordingly, the accused is entitled to an acquittal on the offence of arson.

173. The prosecution accepted that the key question was whether other reasonable hypotheses consistent with innocence could be excluded. While the prosecution accepted that multiple innocent hypotheses were open, they argued that there remained a question as to whether they were reasonable.

174. Dealing first with the alternative hypothesis that the fire was deliberately lit by another person with access to the premises, being Mr Massey or Mr Incezdi. I am satisfied, having accepted the evidence of Mr Massey that the prosecution has excluded him as a person with access to the premises who could have lit the fire. Turning to Mr Incezdi, the prosecution submitted that the evidence of Mr Simson excluded him as a reasonable alternative. Mr Simson had not seen Mr Incezdi for around three weeks, in circumstances where Mr Simson was at the house at least every other day, entering the house on almost every occasion he attended.

175. Mr Incezdi was not captured on the CCTV footage obtained from [redacted] Dowling Street, either in the half an hour before, during, or in the half an hour after the fire. I accept the theoretical possibility that Mr Incezdi, as someone with access to the property, was somehow responsible for the fire and then jumped the back fence of the property so that he was not captured on CCTV or seen by [redacted] or anyone else. I consider this possibility unlikely given the height of the fence as estimated by Mr Simson and the absence of Mr Incezdi from the property on the regular occasions Mr Simson was visiting. In my view the alternative proposition that Mr Incezdi lit the fire has been excluded by the prosecution.

176. I now turn to the second alternative hypothesis consistent with innocence, that being the fire igniting accidentally or unintentionally. As will become clear, it is this hypothesis consistent with innocence that the prosecution has not excluded.

177. The possibility that the fire was unintentionally or accidentally lit by an electrical fault, or by some item of clothing being left on or near a heater is left open on the evidence as a reasonable hypothesis consistent with innocence. The prosecution conceded that the exclusion, beyond reasonable doubt, of this alternative was largely dependent on the evidence of the accused’s admission. The admission is said to be contained in the evidence of Mr Coric when he reported to police that the accused said to him that he was going to burn the house down. The prosecution characterised this remark, if I find that it was said, as “premeditory (sic) admissions” made to Mr Coric by the accused.

178. There are a number of factors that influence the reliability of Mr Coric’s evidence. First, he accepted he could be wrong about the content of the remark, conceding the accused could have said instead “I’m burning” or “I feel like I’m burning”. As at the time he gave evidence in the proceedings Mr Coric had no recollection of the accused saying he was going to “burn the house down” but agreed that he had reported to the police that the accused had told him that. Further, Mr Coric did not remember the accused telling him he was going to kill himself, but said if that is what he told police on 8 July 2022 then “it must have been said”.

The resist territory official and the trespass offences

196. The prosecution submitted the resist offence had been established on the basis of the conduct the accused engaged in by running away from police and “shrugging” off Constable Higgins. The prosecution pointed to the effort required to pursue and restrain the accused, his shrugging off of the constable resulting in a fractured finger, and that the police officers involved were in full police attire and accoutrement and in a police vehicle, in support of the proof of this charge. I would have no difficulty determining that the conduct particularised as that relied upon to make out the charge, is conduct that constitutes resisting. The real question is whether, at time he engaged in that conduct the accused had been lawfully arrested.

197. I refer back to the description I have already recorded of the interaction between the accused and Constable Higgins captured almost entirely on a body-worn camera at [165]. The accused did not contest that he engaged in the conduct captured in the footage.

198. Relying on Wilson v State of New South Wales [2010] NSWCA 333; 278 ALR 74 (Wilson) the accused submitted that an arrest was not properly effected upon him at the point he engaged in the conduct said to constitute the resist offence. In Wilson the court observed at [59]-[61]: 59. In my opinion, there was not a completed arrest of Mr Wilson on the verandah. The requirements for an arrest are (1) communication of intention to make an arrest, and (2) a sufficient act of arrest or submission. 60. As regards (1), if the arrest is to be lawful, this should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] AC 573 at 587–93 ; [1947] 1 All ER 567 at 572–5 (Christie). However, this is not necessary if the circumstances make these things obvious, or if the person arrested prevents it: Christie at AC 587–593; All ER 572–5, R v Hoar [1965] NSWR 1167; Woodley v Boyd [2001] NSWCA 35 at [38] (Woodley). 61. As regards (2), a touching on the shoulder can be a sufficient act of arrest, and even this is not necessary if the arrested person submits: Alderson v Booth [1969] 2 QB 216 at 220, Hatzinikolaou, Woodley at [38].

199. As was observed by Madgwick J in R v Doolan [2001] ACTSC 69 at [13]-[15]: 13. The position of an arresting police officer and that of an arrested citizen is often one of some difficulty. One must start from the rights of the citizen. People are not to be deprived of their liberty except according to law. 14. In order that a citizen may assess his or her own right to resist an attempted arrest, or to escape from custody on the basis that it is not lawful, the citizen needs to have some knowledge of the basis of the arrest. So, in normal circumstances a citizen needs to be informed, not as a matter of nicety but as a matter of broad substance, of the reason for the arrest. 15. If an offender is caught red-handed in the commission of a crime, or in such circumstances that it can be inferred that it must have been perfectly plain to the person concerned why he or she is being arrested, then the requirement of proof of his or her knowledge of his or her position may be regarded as satisfied. Any such circumstance was absent in this case.

Determination

206. I find the accused not guilty on the count of arson. I do not need to go on to consider the defence of mental impairment.

207. I find the accused not guilty on the related charge of possess knife in public place. I do not need to go on to consider the defence of mental impairment.

208. I find the accused not guilty on the related charge of resist territory public official. I do not need to go on to consider the defence of mental impairment.

209. I find the accused guilty on the remaining charge of trespass. I now move to consider the question of mental impairment raised by the accused to deny criminal responsibility.

Was the accused suffering a mental impairment that had an effect contemplated by s 7.3(1) under the Commonwealth Criminal Code) at the time he carried out the conduct constituting the trespass offence?

210. For the reasons that follow I am satisfied on the balance of probabilities that at the time the accused engaged in the conduct establishing the offence that he was suffering from a mental impairment that had the effect that he did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong): s 7.3(1) Commonwealth Criminal Code. I am satisfied that the accused is not criminally responsible for the offence of trespass only because of a mental impairment. Accordingly, a special verdict must be entered: s 7.3(5), Commonwealth Criminal Code.

211. The Commonwealth Criminal Code defines mental impairment in the following way: 7.3 Mental impairment … (8) In this Code: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. (9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

212. I note this definition is in almost identical terms to s 27 of the ACT Criminal Code where mental impairment is defined.

The medical evidence

213. The prosecution tendered expert reports in relation to the accused’s mental impairment from Dr Olav Nielssen and Dr Adam Martin. Neither doctor was required for cross-examination.

Report of Dr Nielssen

214. Dr Nielssen provided a report dated 20 June 2023 on instruction of the accused’s solicitor. Dr Nielssen had access to the case statement, the accused’s criminal history, police statements of Officers Grabt, Wright and Higgins, a transcript of the record of conversation with Mr Coric, a letter from a Ms Smith from ‘Wellways’ dated 6 February 2023 and various clinical and medical records of the accused. He viewed body-worn camera footage of the accused’s interactions with police and his arrest. He also undertook two remote interviews with the accused.

215. During his interviews with the accused, Dr Nielssen noted that the accused had marked motor restlessness which he noted is a side effect of antipsychotic medication. He considered the accused’s emotional responses were restricted in range, and that his answers were brief and concrete, consistent with “the poverty of thinking of a chronic form of schizophrenia”. The accused reported persistent auditory hallucinations and described what seemed to Dr Nielssen to be a persistent delusional belief that he had been followed when out of prison. He appeared restless and easily distracted but maintained attention for the length of the interview.

216. Dr Nielssen took a personal history from the accused, as well as a psychiatric, medical and addiction history. This history revealed that the accused had struggled with mental health problems for significant periods. The accused reported that he believed that some of his family members also suffered from schizophrenia. He told Dr Nielssen that he had been admitted to mental health wards three times, that he had been on a Psychiatric Treatment Order requiring medication by injection, that he had previously contemplated suicide and that he experienced hallucinations of voices and “shadow people”, as well as persecutory fears.

217. Dr Nielssen also reviewed the accused’s clinical mental health records, dating from when the accused was 15 years old and engaged with child and youth mental health services for conduct and aggression problems. He commenced treatment for schizophrenia in 2020 and was admitted to the Adult Mental Health Unit in July 2022 for an acute episode of schizophrenia, after the alleged offending occurred. He was transferred to the AMC from the mental health unit and was receiving medication. Prior substance abuse was noted, and the accused had resumed buprenorphine treatment in the AMC. The accused reported auditory hallucinations and at other times that these hallucinations had ceased with treatment and that he felt “calmer” in prison. In January 2023, Dr Wareing noted diagnoses of schizophrenia and attention deficit hyperactivity disorder (ADHD).

218. Dr Nielssen’s diagnosis of the accused is that he has schizophrenia and polysubstance use disorder based on the symptoms and treatment described by the accused, his clinical records and his presentation during the interviews. He noted in particular the accused’s acute episodes and the prescription of anti-psychotic medication, and the accused’s abnormal emotional responses and communication. The diagnosis of the substance use disorder was based on the accused’s account of abuse of illegal drugs throughout his life. The complications of this abuse include the earlier onset and less favourable course of his chronic mental illness. He considered the behaviour leading to the diagnosis of ADHD by Dr Wareing was better explained by the neurological effects of schizophrenia.

Conclusion on mental impairment

229. Both experts unequivocally concluded that the accused suffers from schizophrenia, which is a mental impairment as defined in the Commonwealth Criminal Code: s 7.3(8).

230. Both experts concluded that at the time he engaged in the conduct the accused could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong due to the effect of his schizophrenia on his ability to reason. Dr Nielssen specifically considered that the accused was deprived of his capacity to control his conduct due to the persecutory beliefs he experienced because of his mental illness.

231. The accused’s use of illicit substances, while referenced by both experts, does not cast any doubt on the certainty of their view with respect to his diagnosis of schizophrenia. It is, of course, not an uncommon circumstance to see those who suffer with serious and chronic mental illness use illicit substances, the consequence of which can be difficulty separating the cause of specific behaviour. That is not the case here, in that both experts were unequivocal that the accused suffers from schizophrenia, the symptoms of which were operating at the time he engaged in the conduct.

232. I am satisfied on the balance of probabilities, based on the unchallenged and entirely consistent opinions of the experts that the accused’s schizophrenia had the effect that he did not know that his conduct was wrong. Accordingly, he is not criminally responsible for his conduct in respect of the offence of trespass: s 7.3 Commonwealth Criminal Code.

Consequential orders

The trespass charge

233. The prosecution submitted that this charge should be dealt with pursuant to s 20BJ of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) which relevantly provides: 20BJ Acquittal where person mentally ill (1) Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (2) The Attorney‑General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1). (3) Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation. (4) Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. (5) The conditions may include: (a) a condition that the person remain in the care of a responsible person nominated in the order; and (b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment. (6) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.

234. While this provision purports to apply to offences on indictment and this offence is one transferred from the Magistrates Court pursuant to s 88B of the Magistrates Court Act 1933 (ACT), the accused correctly identifies that “indictment” is defined in the Commonwealth Crimes Act at s 4A to include an “information”. As the charge commenced by way of information in the ACT Magistrates Court, the accused submitted s 20BJ is applicable to the trespass charge and that the accused should be discharged absolutely. The prosecution similarly submitted that absolute discharge pursuant to s 20BJ(4), noting the maximum penalty for the offence is 10 penalty units, is the appropriate outcome.

235. Noting the applicable maximum penalty of the offence, the circumstances within which it was committed and the time that has elapsed since the conduct was engaged in, it is my opinion that it is more appropriate to deal with the offence in a way that does not require the accused to be subject to any conditions on his liberty arising from these proceedings.

Verdicts

236. For the above reasons I return the following verdicts: (1) The accused is not guilty on the count of arson (Count 1). (2) The accused is not guilty on the charge of possess knife in a public place without reasonable excuse (CC2022/6812). (3) The accused is not guilty on the charge of resist a territory public official (CC2022/6813). (4) The accused is not guilty by way of mental impairment on the charge of trespass on premises without reasonable excuse (CC2022/8328). Pursuant to s 20BJ(4) of the Commonwealth Crimes Act I order the accused’s release from custody absolutely. I certify that the preceding two-hundred and thirty-six [236] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: 24 May 2024 Annexure “A”

Onus and standard of proof The prosecution bears the onus to prove the guilt of the accused. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. If the evidence which I accept fails to satisfy me beyond reasonable doubt of the accused’s guilt then I must find him not guilty.

Fact finding The facts I find must be based on the evidence. I must bring an open and unbiased mind to that evidence. I must view the evidence clinically and dispassionately and I must not let emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the facts according to the evidence, considering it logically and rationally. I may use my common sense, my individual experience and wisdom in assessing the evidence. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance. I may draw inferences from the facts that I find have been established by the evidence. I must examine any possible inference to ensure that it is a justifiable inference and I must not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

Evidence by audio-visual link A witness at trial gave evidence from a location remote from the courtroom connected to the proceedings by audio-visual link. This is usual practice. I must not draw any inference adverse to the accused and I must not attach any greater or lesser weight to the evidence of that witness because this practice was followed: s 68 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Expert evidence In this case, Ms Hurst, Mr Bremers and Mr Davis were called as expert witnesses. Reports containing the expert opinions of Mr Cho, Mr Simpson and Ms Maroney were tendered at trial by consent. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge. In the present case, expert evidence was admitted to provide me with information in the areas of DNA testing and analysis, fire analysis, identification of ignitable liquids, textile examination, electrical investigation and an opinion on these topics. These topics are within each witness’ expertise but are likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue to which the expert evidence relates.

The accused did not give evidence The accused did not give evidence in the proceedings. There is no obligation on him to give or call evidence in a criminal trial. I must draw no adverse inference from his decision not to give evidence. The accused is entitled to say nothing and make the prosecution prove his guilt according to the onus they bear, to the standard required. I cannot take into account the accused’s decision not to give evidence in any way. I cannot use the absence of any evidence from him to fill any gaps in the prosecution case nor can I use it as strengthening the prosecution case. I must not speculate about what might have been said in evidence if the accused had given evidence.

Circumstantial evidence The prosecution case against the accused is circumstantial. There is no direct evidence of the accused deliberately lighting the fire at the premises. The prosecution will have failed to prove its case beyond reasonable doubt unless the conclusion that the accused deliberately lit the fire can be drawn from the whole of the circumstances established to my satisfaction, by evidence I accept. Put another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other conclusion is reasonably compatible with the circumstances established by the evidence. In a circumstantial case, all of the circumstances established by the evidence must be considered and weighed together, not individually or in a piecemeal fashion. The probative force of a body of evidence may be cumulative. As Baker J observed in Director of Public Prosecutions v Cristy Lee Holder [2022] ACTSC 336; 103 MVR 30 sometimes a circumstantial case is described as a "link in the chain" case or as a "strand in the cable" case. Where the case falls into the former category, it may be necessary for the prosecution to prove some of the circumstances relied upon beyond reasonable doubt, because they are indispensable intermediate facts. In the latter category, it is only the elements of the offence itself which need to be proved beyond reasonable doubt. It is not necessary for the various factual "strands" to be proved to that high standard. This is because of capacity of a body of evidence to have a cumulative effect. While each individual strand may be of insufficient strength to support the weight of the prosecution case, when bound together the whole may be of greater probative force than the sum of its parts. The case against the accused is in my view, a “strands in the cable” case. I remind myself that this case, reliant as it is upon indirect, circumstantial evidence does not result in a case weaker than one that relies upon direct evidence or eyewitness accounts. The question remains in either case, has the prosecution proved its case beyond reasonable doubt? Before I can determine that the prosecution has proved the elements of the offence to the requisite standard, I must be satisfied that the inference that the accused was responsible for deliberately lighting the fire has been proved beyond reasonable doubt. If I am not satisfied of this inference beyond reasonable doubt, I must acquit.

‘Mahmood’ (Mahmood v Western Australia [2008] HCA 1; 232 CLR 397) direction Mr Incezdi, a housemate of the accused at the time of the incident, was not called by the prosecution to give evidence at trial. I may take the fact that there was no evidence from that witness into account when I determine whether the prosecution has proved the guilt of the accused beyond reasonable doubt. I must not speculate about what Mr Incezdi would have said if he had been called. However I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.

Unreliable evidence direction - s 165 (Evidence Act) direction I warn myself that the evidence as to the remark made by the accused to Mr Coric outside the premises on the day when the arson is said to have occurred, to the effect that he wanted to kill himself and burn the house down, is evidence of a kind that may be unreliable. The accused challenged the making of the remark. It is hearsay evidence, evidence of an admission against his interest, and evidence the reliability of which may be affected by the accused’s mental ill health. I inform myself that the accused was exhibiting signs and symptoms of mental and emotional instability at the time (including rapid speech, erratic and confused conduct) such that the comment attributed to him may not be a reliable reflection of his thoughts and feelings and could be a circumstance that adversely effected the truth of the admission. Further to this I warn myself that the evidence of Mr Coric suggested some, what I considered to be genuine, uncertainty as to the specific content of the comment. While Mr Coric initially reported to police that the accused said to him that he was going to burn the house down, he agreed in cross-examination that the accused could have said “I feel like I’m burning”. Mr Coric confirmed in re-examination that he did not have a positive recollection at the time of giving evidence of the accused saying the words he initially attributed to him. I warn myself that when Mr Coric initially spoke to police and attributed the admission to the accused, he already knew that there had been a fire at premises after his discussion with the accused. I also note that Mr Coric described the conversation with the accused as going for 5 to 10 minutes when the CCTV footage reveals it was actually closer to 40 seconds. Further, Mr Coric did not initially mention the fuel cell to police, which was a feature of his purpose in attending the property. These are all factors that could influence the reliability of his hearsay evidence about the admission. I warn myself of the need for caution in deciding whether to accept the evidence and the weight that should be afforded to the evidence.

Reeves was concerned with s 165B of the Evidence Act 1995 (NSW) (the NSW Evidence Act) which deals with “Delay in prosecution”. The Court of Criminal Appeal observed at [418]: “The Crown accepted that s 165B of the Evidence Act 1995 does not apply in a trial without a jury and so the common law principles apply: s 165B(1)”. Section 165B(1) of the NSW Evidence Act expressly provides that the section applies in a criminal proceeding in which there is a jury.