DPP v Zhijang Cheng and Shu Shirley Xuan

Charges

1. The First Defendant was charged with the following offences: - 1. Seq 1 - Dishonestly, for gain, damage property by fire ("the arson offence") [s.197(1)(b) Crimes Act 1900 (NSW)] 2. Seq 3 - Dishonestly obtain financial advantage by deception (attempt) ("the fraud charge") [s.192E(1)(b) Crimes Act 1900 (NSW)]
2. The Second Defendant was charged with the following offence: - 1. Seq 2 - Dishonestly obtain financial advantage by deception (attempt) [s.192E(1)(b) Crimes Act 1900 (NSW)]
3. The principal charge of dishonestly, for gain, damage property by fire, formerly laid against the Second Defendant, was withdrawn by the Crown prior to the commencement of the hearing. The Crown's case as against the Second Defendant was wholly founded on the doctrine of joint criminal enterprise.

The Legislation

1. The relevant legislative provision for the arson offence provides as follows: - 197 Dishonestly destroying or damaging property (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
2. The relevant legislative provision for the dishonestly obtain financial advantage by deception charges provides as follows: - 192E Fraud (1) A person who, by any deception, dishonestly: (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years.
3. The elements of the arson offence are as follows: - 1. that the Defendant, dishonestly, with a view to making a gain for himself (or another); 2. did destroy or damage property; 3. by means of fire.
4. The elements of the fraud charge (consistent with R v Licardy (Unreported, NSWCCA, 26 May 1995)) are as follows: - 1. that the Defendant, by deception; 2. dishonestly obtained for himself or another person; 3. any financial advantage.
5. The proceedings have a lengthy history in this Court, having been mentioned on some 18 prior occasions during the case management phase, with a view to the matters proceeding on indictment via a committal. On or about 10 June 2016, the Crown indicated that the matters would proceed to a summary hearing instead. No election was made by either party that the proceedings be dealt with on indictment: Schedule 1, Table 1, Part 2, Criminal Procedure Act 1986 (NSW).

Criminal Trial Directions

1. The Crown case was based partly on direct evidence but predominantly on circumstantial evidence and, because this was so, various cautionary criminal trial directions are called into play, as if I were directing a jury on the application of the law to the facts, as they found them to be, on matters prosecuted on indictment.
2. It is well established that criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v R (1998) 197 CLR 250. Lest there be any doubt, I have directed myself in accordance with the cautionary criminal trial directions referred to herein.
3. I repeat the rather oft-cited trial direction regarding the standard and burden of proof. The Crown must prove each of the elements of the offences beyond reasonable doubt. It is not for the Defendants to prove their innocence, but rather for the Crown to prove their guilt. In the event that the Crown has failed to discharge its burden to the requisite criminal standard, in relation to each of the Defendants, a verdict of not guilty must be returned and the Defendants acquitted.
4. There are other criminal trial directions which I ought give myself. Neither the First nor the Second Defendant gave evidence in this matter and no adverse inference is to be drawn from their decision not to do so. Neither Defendant provided a Record of Interview.
5. The customary direction where the Crown relies on circumstantial evidence is that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: Shepherd v R (1990) 170 CLR 573 (at 578).
6. It is necessary for the tribunal of fact to decide whether it accepts the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence. It can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. It cannot view an intermediate fact as an indispensable basis for an inference of guilt unless at the end of the day it is satisfied of the existence of that fact beyond reasonable doubt: Chamberlain v R (No 2) (1984) 153 CLR 521 (at 535); Shepherd v R (1990) 170 CLR 573 (at 576).
7. When the evidence is circumstantial, the tribunal of fact may draw an inference of guilt from the circumstances of the case. It must, however, exclude any reasonable hypothesis consistent with innocence: Chamberlain v R (No 2) (1984) 153 CLR 521 (at 535).
8. It is to be stressed that the Court, as the trier of fact, cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence: Peacock v R (1911) 13 CLR 619 (at 634); Plomp v R (1963) 110 CLR 234 (at 234). If there is, then in such circumstances, it ought give the accused the benefit of the doubt necessarily created by that circumstance: Pitkin v R (1995) 130 ALR 35 (as 39).
9. The guilt of the accused must be established beyond reasonable doubt. A doubt must be entertained where any other inference consistent with innocence is reasonably open on the evidence: Shepherd v R (1990) 170 CLR 573 (at 579).
10. Additionally, the good character of both Defendants was raised and it was conceded by the Crown that neither had any prior criminal convictions. This impacts upon the fact finding exercise by requiring that I direct myself along the lines referred to in R v Murphy (1985) 4 NSWLR 42. There are two limbs to the traditional direction.
11. First, I take into account the fact that as the Defendants have an unblemished reputation, this leads to the presumption that they are not capable of committing the crimes which are the subject of the charges. Authority for this proposition is found in Attwood v R (1960) 102 CLR 353 at 359. Character cannot alter proven facts, but when I am considering whether the Crown has proved its case beyond reasonable doubt, I must take into account the presumption that the Defendants would not commit a crime. This is the propensity limb of the direction.
12. There is another aspect to good character, the credibility limb of the direction - that a person of good character is presumed to tell the truth. This is academic, though, because neither of the Defendants gave evidence and there was no cause to take good character into account in assessing their credibility. Of course, a person of good character can commit a first crime and can tell a lie, but both are unlikely.

Case law as to the fraud charge

1. I should add, for completeness, that the three ingredients of the fraud charge are evident from the statutory provision itself. However, there is an additional subset to the elements inherent in that charge. In Flack v R [2011] NSWCCA 167, Johnson J (with whom McClellan CJ at CL and Hidden J agreed) held (at [37] - [38]): "[37] What must be established, however, is a causal connection between the deception used and the financial advantage obtained. The deception must have been the means whereby the financial advantage was obtained, or the effective cause of the financial advantage being obtained. It is an essential ingredient of an offence under s.178BA that the cause of the giving of the financial advantage was the deception used by the accused person: R v Stanhope (NSWCCA, unreported, 10 September 1987, pages 6-8); R v Clarkson [1987] VR 962 at 980; R v Ho; R v Szeto at 147. [38] The question whether the deception was an operative cause of the obtaining of financial advantage, falls to be answered as a question of fact by the members of the jury applying their commonsense: R v King [1987] 1 QB 547 at 553."

Evidence

1. By consent, the Crown tendered the following statements, photos and other evidentiary documents on which it sought to rely to prove its case against the Defendants: - 1. Statement of S/C Rosemarie Wilton (Scene of Crime Officer) ("SOCO") dated 24/10/2014 (together with Photos 1 - 44), marked Exhibit 1, whose evidence was that: - 1. At 12.30 a.m. on Sunday 13 April 2014, a fire occurred at the Whammy Burger Takeaway food shop at 28 Garfield Road East, Riverstone; 2. A crime scene was established and the officer examined, photographed and recorded the scene in relation to the collection of exhibits and liquid accelerant samples; 3. The officer again attended the site at 4.25 p.m. on Monday 14 April 2014, examined the scene, took a number of colour photographs and prepared notes and a sketch plan; 4. Of relevance was the ignitable liquid residue sample at the front of the serving area on the tiled floor at Marker 1 (depicted at photographs 28 and 29 of her SOCO Report); two small liquid petroleum gas (LPG) cylinders (depicted at photograph 32); a fire damaged paint tin at Marker 2 (depicted at photographs 36, 37 and 38); and a security camera affixed to the ceiling on the south-eastern corner of the kitchen, which was partially covered with grey paint (depicted at photographs 37, 42, 43 and 44). 1. Statement of Mr Gian-Luca Bertoldi (Fire Investigation Officer) dated 3/6/2014, marked Exhibit 2, whose evidence was that: - 1. He had been employed by NSW Fire and Rescue for nine years; 2. At 8.30 a.m. on 13 Aril 2014, he arrived at the site as the Fire Investigation Officer following a 000 call at 12.42 a.m.; 3. Amongst other things, he had been informed by D/S/C Emily Pietruszka that CCTV footage captured in the security camera belonging to Shop 28A ("the tattoo parlour") showed a man in a white hooded shirt entering the rear door of shop 28B (the takeaway food shop) and that the man had been inside the shop for approximately six minutes; 4. He conducted an external and internal scene examination and noted, amongst other things, that there were two CCTV cameras situated at the front and rear of the takeaway food shop; the rear screen door was open, damaged and separated from two of its three hinges; the rear metal door lock was missing and had a homemade metal bar/security system; there were no signs of damage from forced entry; a CCTV camera was positioned in the far right-hand corner of the rear room of the shop, attached to the ceiling; the front of the shop was severely damaged by fire; there were small areas of separate fire damage and that due to competent ignition sources, he ruled out accidental and natural ignition; after he left the scene at 11.45 p.m., fire dog "Sheba" and its handler had attended the premises and ascertained that an accelerant was present at the scene and that the remains of a vessel containing accelerant were uncovered; 5. He recorded the cause of the fire as deliberate due to evidence of a person entering through the rear door; the presence of four separate points of origin; the presence of accelerant; and the remains of a plastic vessel containing accelerant (depicted in the photo attached to his statement). 1. Statement of S/C Melanie Sumerta (Fingerprint Technician) dated 9/4/2015, marked Exhibit 3, whose evidence was that: - 1. She attended the premises at 5.30 p.m. on 14 April 2014; 2. After conducting an inspection and fingerprint examination at the rear yard of the property, she was unable to develop any fingerprints and, therefore, none were connected to any suspect. 1. Statement/DAL Certificate of Ms Katarina Burda (Forensic Scientist) pursuant to s.177 of the Evidence Act 1995 (NSW) dated 16/5/2014, marked Exhibit 4, whose evidence was that: - 1. Petrol was detected in the contents of a piece of damp and heavily soiled white absorbent material in a plastic sachet and within a small metal can at the front of the serving area on the tiled floor at Marker 1 (depicted at photographs 28 and 29 of the SOCO Report). 1. Statement of D/S/C Emily Pietruszka (Investigative Officer) dated 17/4/2014, marked Exhibit 5, whose evidence was that: - 1. On 14 April 2014, she observed D/S/C Peter Wilson review footage from the CCTV hard drive seized from the takeaway food shop and observed a white container seen to slide along the floor from the rear of the shop to the front of the shop and, shortly thereafter, a fire run along the floor towards the white container and then the front of the shop becoming engulfed in flames; 2. On Tuesday 15 April 2014, she attended Riverstone Schofield Memorial Club where she collected a USB stick containing CCTV footage; 3. On Wednesday 16 April 2014, she attended a briefing in relation to, and then the execution of, a search warrant over the Defendants' home at 480 Windsor Road, Baulkham Hills; 4. She saw D/S/C Peter Wilson have a conversation with the First Defendant with the assistance of a Mandarin interpreter, which conversation was recorded by D/S/C Penelope Allan; 5. She observed, and was involved in, the search being conducted at the home, the Lexus motor vehicle and the Toyota Rav 4 motor vehicle; 6. She observed D/S/C Paul Rosano locate a pair of gloves in a container at the rear of the garage area; 7. She observed a BBQ sitting on the rear balcony at the house and noted that there was no gas bottle attached to the BBQ. 1. Statement of D/S/C Rebecca Jackson (Investigative Officer) dated 9/9/2014, marked Exhibit 6, whose evidence was that: - 1. She attended the premises at 3.20 a.m. on 14 April 2014; 2. The adjacent premises were the "Skin Mason Tattoo Studio"; 3. She became aware that the First Defendant had been contacted and would be attending shortly; 4. She spoke to an employee of the tattoo parlour, Mr Shane Sparks; 5. The front of the premises of the tattoo parlour had been damaged by the fire brigade when entering through its roller doors and that there was smoke damage within those premises; 6. The rear of those premises had not been broken into; 7. The CCTV system from the tattoo parlour was taken to the Riverstone Police Station in order to access the footage; 8. The time on the tattoo parlour's CCTV system was one hour ahead of the correct time; 9. Close to the time of the fire, a person, who appeared to be a male wearing a white hooded jumper and white shoes, ran through the back yard of the tattoo parlour; 10. At 5.00 a.m. on 14 April 2014, the First Defendant arrived and was informed that the shop had burnt down; 11. Initially, the First Defendant "did not show much emotion" and asked police "what happened?"; 12. She observed that the First Defendant was not wearing the same clothing as worn by the man depicted in the tattoo parlour's CCTV footage prior to the fire; 13. The First Defendant stated that his wife ran the business while he worked behind the counter cooking the food, but that his wife was overseas with his daughter's dance school from Carlingford, having left only a week earlier; 14. When asked about insurance, the First Defendant advised that his wife took care of all the paperwork for the business; 15. At the rear of the takeaway food shop, she observed a panel from the inside of the Colorbond fence had been removed; 16. She observed what appeared to be numerous "seats of fire" within the rear section of the shop; 17. On 15 April 2014, she viewed the takeaway food shop's CCTV footage; 18. On 16 April 2014, she attended upon the execution of the search warrant of the Defendants' home and was assigned the task of Exhibits Officer; 19. During the execution of the search warrant, the two items of relevance which were presented to her were a black funnel pipe found in the boot of the Toyota Rav 4 motor vehicle and a pair of green fabric gloves found in the rear of the laundry. 1. Statement of S/C Penelope Allan (Investigative Officer) dated 17/4/2014, marked Exhibit 7, whose evidence was that: - 1. At 9.30 a.m. on Wednesday 16 April 2014, she attended a briefing in relation to, and then the execution of, a search warrant over 480 Windsor Road, Baulkham Hills with an interpreter; 2. She observed a detector dog at the location; 3. She recorded the search warrant using two different hand-held video recorders; 4. She took three photographs of a pair of white shoes, identified by the First Defendant as belonging to him, and which were located on the front doorstep. 1. Statement of D/S/C Scott Whale (Investigative Officer) 30/9/2014, marked Exhibit 8, whose evidence was that: - 1. On Wednesday 16 April 2014, he attended a briefing in relation to, and then the execution of, a search warrant over 480 Windsor Road, Baulkham Hills; 2. He seized a black funnel, which he handed to the Exhibits Officer; 3. He became aware that a pair of gloves was seized by D/S/C Paul Rosano. 1. Statement D/S/C Glen Mitchell (Arson Unit) dated 12/8/2014, marked Exhibit 9, whose evidence was that: - 1. On 30 May 2014, he completed and submitted a Surveillance Device Affidavit to the NSW Police Force Covert Applications Unit; 2. As a result of the application, Surveillance Device Warrant 14/0348 was granted by Justice Fullerton. It is noted that the warrant authorises the use of four listening devices and four optical devices at 480 Windsor Road, Baulkham Hills but that the warrant "authorises entry by force if necessary onto or into 482 Windsor Road, Baulkham Hills on which this warrant authorises the use of a surveillance device for any of the purposes referred to in sections 21(2)(a)(i) or 21(3) of the Act", an irregularity to which the First Defendant's counsel adverted in his opening submissions, but in relation to which a challenge was abandoned. 1. Statement of Mr Michael Fernandez (Owner of Z - Tronics Computer Services) dated 21/10/2014, marked Exhibit 10, whose evidence was that:- 1. His computer shop is located at 7/15 Pitt Street, Riverstone and has a CCTV camera which records the front area of his shop, including the intersection of Pitt and Market Streets, Riverstone; 2. Having become aware of the fire at the takeaway food shop, and at the request of Police, provided a copy of the footage from his CCTV camera for 13 and 14 April 2014 and 2 July 2014 by burning a copy onto two DVDs; 3. The time displayed on the footage was the correct local time. 1. Statement of Mr Brendan Doyle (Firefighter) dated 14/6/2014, to which a further statement dated 5 August 2014 was attached, marked Exhibit 11, whose evidence was that: - 1. He had been employed by NSW Fire and Rescue for 13 months; 2. At 12.44 a.m. on 13 April 2014, he arrived at the site following a 000 call log; 3. He observed flames coming from inside the front of the building as well as exiting from the roof; 4. He forced entry and entered the shop via the front door; 5. The inside of the shop was extremely hot and smoke logged; 6. He commenced a right hand search noticing that there were three "seats of fire"; 7. He and Firefighter McGrath, with assistance from another firefighting crew, extinguished the fire; 8. Whilst undertaking a primary search of the building and initial force attack, he observed a 9kg LPG cylinder turned on at the doorway (depicted at photograph 32 of the SOCO Report) in the middle of the room which was venting gas and which he turned off at the bottle, leaving it in situ; 9. The LPG bottle did not appear to be connected to the BBQ or a regulator; 10. After reviewing a photograph of the fire scene, he clarified in his further statement dated 5 August 2014, that the gas bottle referred to as being in the on position and venting gas was the gas bottle closest to the door frame as depicted in the photograph; 11. The position of the gas bottle during the fire was the same as it appears in the photograph; 12. He did not see the second gas bottle to the right of the first gas bottle at the time of the fire due to the smoke filled environment and its position out of view under the BBQ. 1. Statement of S/C Bronwyn Lansley (Forensic Services Group - SOCO) dated 8/2/2015, marked Exhibit 12, whose evidence was generally corroborative of the first SOCO Report writer, S/C Rosemarie Wilton, dated 24/10/2014 (Exhibit 1) and was that: - 1. At 8.00 a.m. on Sunday 13 April 2014, she attended the site in relation to a structural fire; 2. She conducted an external and internal examination, taking photographs 1 - 41 and arriving at the conclusion that the fire was deliberately lit, not due to an electrical fault, and that there were four "seats of fire", the first at the front of the store around the serving area (depicted at photograph 20 of her SOCO Report), the second at the timber bench (depicted at photographs 29, 30 and 31 of her SOCO Report), the third at the timber table with metal frame (depicted at photographs 34, 35, 36 and 37 of her SOCO Report), and the fourth at the paper rolls, bucket, plastic bin and paddle pop sticks (depicted at photographs 40 and 41 of her SOCO Report). (It appears though, from my analysis of photographs 34, 35, 36 and 37, that the LPG cylinder No.1, whilst in the on position when Firefighter Doyle noticed it, had a rubber hose which was connected to the two-burner stove immediately above it, rather than this being indicative of nefarious intent by the person responsible for the fire). 1. Statement of Cst Stuart Davenport (Motor Mechanic - Engineering Investigation Unit) pursuant to s.177 of the Evidence Act 1995 (NSW) dated 22/8/2014, marked Exhibit 13, whose evidence was that: - 1. On 23 June 2014, he examined files which had been taken from CCTV footage of the same date; 2. He examined each file in an effort to ascertain the make, model and identity of the motor vehicles depicted in the images; 3. He was also asked to physically examine the Defendants' motor vehicle and conduct a comparative examination between the motor vehicle itself and the motor vehicles appearing in the files supplied to him; 4. On 15 July 2014, he examined the Defendants' Toyota Rav 4 which displayed exterior features including a rear tailgate, spare tyre and cover on the driver's side tailgate, registration plate located in the rear passenger side bumper recess, and a large protruding wrap around the headlight assembly; 5. He compared the Toyota Rav 4 (Rego No. VWJ 168) with the vehicle depicted in the CCTV images and concluded that the motor vehicle in the CCTV images was "consistent in appearance" with the Defendants' motor vehicle he physically examined at the NSW Police holding yard. 1. Statement of Mr Timothy Garrett (NSW Fire and Rescue Dog Handler) pursuant to s.177 of the Evidence Act 1995 (NSW) dated 18/3/2015, marked Exhibit 14, whose evidence was that: - 1. He was a dog handler attached to the Fire Investigation and Research Unit of NSW Fire and Rescue; 2. His role was to assist the investigation of the fire with the aid of an Accelerant Detection Canine trained in relation to the use of ignitable liquids ("Sheba"); 3. Sheba was able to indicate on five different ignitable liquids through various levels of evaporation and was also trained to be able to detect 0.5 microlitres of each substance; 4. At 10.00 a.m. on 16 April 2014, he attended with Sheba at 480 Windsor Road, Baulkham Hills; 5. Together with Sheba he conducted an internal and external search through the premises and the Defendants' vehicles; 6. Sheba located a plastic nozzle from a fuel container in the rear boot area of the Defendants' Toyota Rav 4, which was parked in the rear yard; 7. Sheba located a yellow fuel container inside the garage front door on the right; 8. A number of items which were seized by police that day, including various items of black clothing in black plastic bags and a pair of gloves, were taken to a nearby park and were laid out on the ground. Sheba searched the area including the items in the bags and did not indicate the presence of any accelerants. 1. Statement of Ms Lorraine Young (Real Estate Agent - Raine & Horne Blacktown) dated 16/7/2014, marked Exhibit 15, whose evidence was that:- 1. She was the Principal of Raine and Horne Real Estate Blacktown since 2008; 2. She had been managing the lease over the property at 28 Garfield Road East, Riverstone on behalf of the owner, Mr Angelo Cauchi, since 2012; 3. The property was leased to ChengXuan Pty Limited and that the lease, attached to her statement, disclosed a five year lease from 20 January 2006 to 19 January 2011, with an option to renew for a further five years from 20 January 2011 to 19 January 2016, the option of which had been exercised by the lessee; 4. Her records disclosed that the lessee was, for the most time, consistent with its rental payments. However, her records revealed that on 6 January 2014, a letter of demand was forwarded to the lessee as it had fallen behind in its rental payment for the period 19 December 2013 and which was paid on 7 January 2014, following receipt of the letter of demand; 5. Her records revealed that on 9 January 2014, Blacktown Council conducted an inspection of the premises and issued a Non-Compliance Food Standards Code Notice to the owner, Mr Cauchi; 6. She attached to her statement copies of the Lease (LPI Registration No. AC276563), the insurance policy evidencing cover for fire and specified perils ($130,000.00), plate glass ($7,500.00), public liability ($5,000,000.00), letter from Blacktown Council dated 9 January 2014 advising of non-compliance with the Food Standards Code and the Australian Standard 4674-2004 (Design, Construction and Fit-out of food premises), a copy of which was forwarded by the managing agent to the lessee under a covering letter dated 22 January 2014, letter from Whammy Burger Takeaway and Café dated 24 January 2014, letter from the managing agent to the lessee dated 25 January 2014, letter from Whammy Burger Takeaway and Café to the managing agent dated 1 February 2014 (in which the lessee appears to have taken issue with what was required of it under the non-compliance letter issued by the Council to the lessor), letter from the managing agent to the lessee dated 8 February 2014, requiring certain rectification works set out in the Council's letter to be carried out by 1 March 2014, and finally a letter from Whammy Burger Takeaway and Café to the managing agent dated 18 February 2014, in which the lessee complained about the water meter having been faulty and a garden hose placed into the drainage pipe with "very loud noise of gushing water" coming from the "vacant premises adjacent to ours". (It is noted that this letter is dated one day after the Defendants obtained additional insurance cover for business interruption (for which an endorsement was issued by the insurer, Lumley Insurance)). 1. Statement of Mr Robert Martinez (Environmental Health Officer - Blacktown Council) dated 29/7/2014, marked Exhibit 16, whose evidence was that: - 1. On 13 November 2013, he conducted an inspection of the Defendants' takeaway food shop in response to a complaint of possible food poisoning and as the business was due for its routine inspection; 2. He identified a number of deficiencies, took 18 colour photographs, and issued the proprietor, ChengXuan Pty Limited, a Penalty Notice for $880.00 for failing to comply with the Food Standards Code; 3. There were numerous pieces of correspondence between the Second Defendant and Blacktown Council in which she complained of the inspection itself, racism, unfair treatment and other issues; 4. In early 2014 (paragraph 8 of his statement incorrectly reads "2013"), the Second Defendant was afforded a three-month period within which to complete the necessary improvements described in the assessment report conducted in November 2013, at which time a reinspection would occur; 5. The reinspection did not occur and the Second Defendant elected to have the Penalty Notice heard in Court, and which was fixed for hearing on 11 July 2014; 6. Upon learning of the fire at the takeaway food shop, Blacktown Council made a decision to withdraw the Penalty Notice as the Defendants were no longer trading; 7. The documents attached to his statement included numerous photos evidencing non-compliance with the Food Standards Code, the Council file of the relevant inspection and previous inspection correspondence, the $880.00 Penalty Notice, some (but not all) of the pages evidencing an ASIC company extract, a detailed memo of the inspection carried out on 13 November 2013 dated 4 December 2013 in which, at paragraph 4(vii) it refers to "ceilings were not able to be effectively cleaned" and that ceilings were required to be "non-perforated and finished free of open joints, cracks, crevices in order to prevent the contamination of food and to allow for effective cleaning and pest proof the ceiling." 1. Statement of Ms Stephanie Lee (Litigation Consultant - IAG Insurance) dated 29/7/2016, marked Exhibit 17, whose evidence was that: - 1. She was a Claims Manager with IAG Insurance since 2015 but had been employed with IAG since 2008; 2. The insurance policy was incepted on 16 October 2013 and was due to expire on 16 October 2014; 3. The policy was taken out by a brokerage firm on behalf of the lessee corporation; 4. The policy covered fire and perils (contents and stock - $130,000.00); glass ($7,500.00); public liability ($5,000,000.00) and business interruption ($100,000.00), the latter of which was included by way of an endorsement on the policy on or about 17 February 2014; 5. There had never been any previous claims made by the insured prior to the fire on 12 April 2014; 6. On 14 April 2014, the loss and damage caused by the fire on 13 April 2014 was reported to IAG (Lumley Insurance) by the Second Defendant's broker, Mr Spencer Hon, and an insurance claim was subsequently lodged seeking indemnity for the damage to the insured contents and for business interruption; 7. At no stage following the lodgement of the claim did the Second Defendant or her broker advise the insurer of a withdrawal or cessation of the claim; 8. At no stage following the lodgement of the claim did the Second Defendant or her broker advise that the First Defendant and/or the Second Defendant were suspected of lighting the fire or had been charged with arson and insurance fraud related offences. 1. Statement of Mr Spencer Hon (Insurance Broker) dated 7/10/2014, marked Exhibit 18, whose evidence was that: - 1. He was the Defendants' insurance broker and the principal of Eternity Insurance and Financial Services; 2. The policy commenced on 16 October 2013 and was due to expire on 16 October 2014; 3. On 17 February 2014, a variation was made to the policy to include "Business Interruption" for $100,000.00 and "damage to documents and electronic data files" to the value of $20,000.00; 4. In February 2014, the Second Defendant telephoned him wanting to include business interruption cover because there was a "tattoo parlour neighbouring her shop and she was worried that something may happen to the tattoo parlour which would affect their business"; 5. On 14 April 2014, the First Defendant telephoned him to obtain assistance in reporting the fire damage to the insurer, which resulted in him calling the Lumley Insurance Claims Department and lodging a claim on the First Defendant's behalf; 6. He attached to his statement copies of the amended insurance policy (inclusive of the business interruption cover) and a hand-written File Note with entries spanning the period 14 October 2013 to 26 September 2014. 1. Statement of Mr Angelo Cauchi (Owner/Lessor of the property) dated 16/2/2015, marked Exhibit 19, whose evidence was that: - 1. He was the owner of the commercial building situated at 28 Garfield Road East, Riverstone, having owned the building since 1994 or 1995; 2. The building was damaged by fire in April 2014; 3. On 12 September 2014, he obtained a quote from Belcastro Building to repair the damage caused by the fire, after having obtained three quotes; 4. The final quote was $43,000.00 to repair the building; 5. The repairs were completed on or about 26 October 2014 and the total amount of $43,000.00, as quoted, was paid to Belcastro Building; 6. Apart from the cost of repairs, he suffered a loss of approximately $30,000.00 in rental income; 7. The lease was terminated on 5 September 2014; 8. As at the date of his statement on 16 February 2015, the building remained unoccupied; 9. Attached to his statement were copies of the quotation dated 12 September 2014 and invoice dated 26 October 2014 for the $43,000.00 repair cost paid to rectify the damage to the building.
2. Oral evidence was given by the Officer-in-Charge, D/S/C Paul Rosano. His evidence was that: - 1. He was the officer-in-charge; 2. He was instrumental in the application, on 30 May 2014, for the surveillance devices which were fitted at the Defendants' residential premises in early June 2014; 3. A Surveillance Device Warrant in relation to the Defendants' home at 480 Windsor Road, Baulkham Hills, the Defendants' Toyota Rav 4 motor vehicle and the Defendants' Lexus motor vehicle was obtained; 4. On or about 26 June 2014, he was instrumental in obtaining from Justice Garling, an extension of the Surveillance Device authorisation; 5. On or about 27 June 2014, he attended the Defendants' home; 6. He showed the Second Defendant four still image photographs taken from the tattoo shop CCTV camera depicting a male person at the rear of the takeaway food shop premises in the early hours of 13 April 2014; 7. The Second Defendant did not recognise the person in the images (Exhibit 20). (I note that the identity of the person within the CCTV still images is not determinative, although the first two stills depict a person whose head is covered either by a white coloured hoodie or a white hat moving from the left of the screen from the tattoo parlour towards the right of the screen to the takeaway food shop at 1.16 a.m. footage time (12.16 a.m. real time) on 13 April 2014. The second two stills depict the person without a white hoodie or white hat moving from the right of the screen from the takeaway food shop to the left of the screen in the rear yard of the tattoo parlour at 1.21 a.m. footage time (12.21 a.m. real time) on 13 April 2014. In one of the stills, because it is frozen in time, it appears as if the person is crouching); 8. He was the officer involved in the arrest and cautioning of both Defendants; 9. In cross-examination, he gave evidence that the First Defendant had been at the shop two days earlier; 10. He had made enquiries that the shop was closed for renovations and, indeed, closed from 10 April 2014 to 24 April 2014; 11. He was not aware of a sign on the shop front which indicated that the shop would be closed for renovations during that period; 12. He was aware that the First Defendant had carried out some painting work within the premises and that one of the domes encasing the CCTV camera within the premises, in the kitchen area at the rear, had fresh paint on it and around it; 13. Although he saw the footage from the hard drive attached to that CCTV camera, it was difficult to see because the lens were dirty, apart from there being paint thereon and cockroaches within the dome; 14. In cross-examination, he gave evidence that there was someone listening to the voices captured on the surveillance device within the premises from early June 2014 to 26 June 2014 and after the extension was obtained on 26 June 2014; 15. He readily conceded that he attended the premises and showed the Second Defendant four CCTV stills on 27 June 2014 and that there was "a purpose in doing that" because police "hadn't been able to obtain anything over the first period" and agreed that this was a "strategy" to "stir the pot" and to "generate conversation"; 16. He agreed that whilst he had conducted phone record examinations in respect of the Defendants, there were no phone calls or anything else (presumably more directly linking the Defendants to the arson); 17. He was shown the four CCTV still images in Exhibit 20 depicting a person wearing a white hooded garment and agreed, in cross-examination, that the clothing shown therein was not located at the Defendants' premises during the execution of the search warrant; 18. He was not cross-examined by counsel for the Second Defendant and there was no re-examination by the Crown.
3. Oral evidence was given by the Second Officer-in-Charge, D/S/C Peter Wilson. His evidence was that: - 1. At 3.20 a.m. on 13 April 2014, he attended the shop fire with Detective Jackson; 2. Tendered into evidence as Exhibit 21 was an aerial map on which he indicated the Whammy Burger Takeaway Food Shop on Garfield Road East; The Z - Tronics Computer Store on Market Street (Cnr Pitt Street); and the direction of view from the CCTV camera affixed to the front of the Z - Tronics Computer Store looking along Market Street towards the cross-intersection of Pitt Street in a northerly direction; 3. Tendered into evidence as Exhibit 22 was the CCTV footage disc from the Skin Masons Tattoo Parlour on 13 April 2014 which depicted the following:- 1. 1.14 a.m. 34 secs 13 April 2014 footage time (12.14 a.m. 34 secs real time) - front camera - a person running from the top of the screen across the street towards the side of the road on which the tattoo parlour was located; 2. 1.16 a.m. 37 secs 13 April 2014 footage time (12.16 a.m. 37 secs real time) - rear yard camera - a person walking from left to right of the screen from the tattoo parlour towards the takeaway food shop. (It is noted that the person depicted was wearing a white hoodie or white hat but otherwise no identifying features inculpating the First Defendant); 3. 1.21 a.m. 21 secs 13 April 2014 footage time (12.21 a.m. 21 secs real time) - rear yard camera - a person running from right to left of the screen from the takeaway food shop towards the tattoo parlour. (It is noted that the person depicted on the return trip was not wearing a hoodie or a hat. Although the shoes he is wearing are white in colour, I was unable as the tribunal of fact to conclude that they were the same shoes located at the Defendants' home when the search warrant was executed and shown in the photos attached to Exhibit 7, the statement of S/C Penelope Allan. I do note, however, that they both bear a similar grey stripe on the left shoe); 4. 1.23 a.m. 52 secs 13 April 2014 footage time (12.23 a.m. 52 secs real time) - rear yard camera - faint smoke is seen coming from the direction of the takeaway food shop. 1. At 5.10 a.m. on 13 April 2014, the First Defendant attended the scene at which time a conversation ensued and in which the First Defendant informed him that he was last at the premises on Friday 11 April 2014 between 10.00 a.m. and 3.00 p.m., painting the interior of the shop; that he had locked the doors when he left; that there had not been any trouble or problems with anyone at the shop; that his wife was overseas; that he had been at home all night; that they had insurance but that his wife owned the business and he only worked there; 2. The Officer's evidence was that upon inspecting the premises, he noticed that the flyscreen at the rear had come off the top hinge; that the locking mechanism was not working properly and that the metal door which did not have a locking mechanism but was secured manually using a metal bar was not engaged in the locked position; 3. He noticed that the CCTV camera dome at the rear kitchen area of the shop was covered with a white creamy substance, like paint, coinciding with the First Defendant's disclosure to him that he had been painting in that area; 4. On 14 April 2014, he seized the CCTV hard drive from the takeaway food shop; 5. After speaking with the owner of the building, he became aware that Blacktown Council had recently inspected the premises and identified a number of issues which resulted in a dispute as to who was responsible for the cost of repairs; 6. Tendered into evidence as Exhibit 23 was the CCTV footage disc from the takeaway food shop on 11 and 13 April 2014 which depicted the following: - 1. 12.20 a.m. 45 secs 13 April 2014 footage time (approximately 13 mins behind real time) - internal camera facing the front of the shop showing the front serving area to the left side of the screen - a white container is seen sliding across the floor from the rear to the front of the serving floor area where it comes to rest; 2. 12.23 a.m. 06 secs 13 April 2014 footage time (approximately 13 mins behind real time) - internal camera facing front of shop showing the front serving area to the left side of the screen - a fuel/ fire trail is seen running from the rear of the shop to the container, igniting the accelerant along the way and engulfing the shop in flames; 3. 2.22 p.m. 35 secs 11 April 2014 footage time (approximately 13 mins behind real time) - internal camera in the rear kitchen area - three to four live cockroaches appear to have become caught in the dome of the camera obscuring vision of the room. The camera footage appears blurry and out of focus in any event. It is common ground that the First Defendant is the person depicted, albeit blurry, in the background and later, using a roller, painting near, around and over the camera dome at 2.25 p.m. 58 secs; 1. Tendered into evidence as Exhibit 24 was the CCTV footage disc from the Z - Tronics Computer Store on 13 April 2014 which depicted the following: - 1. 12.23 a.m. 35 secs 13 April 2014 footage time (close to real time according to the tattoo shop employee, Mr Shane Sparks) - external camera at the front of the computer store showing what is alleged to be the Defendants' Toyota Rav 4 proceeding along Market Street, slowing at the give way sign on Market Street, then crossing over Pitt Street to continue onto Market Street in a northerly direction away from the Z - Tronics Computer Store; 1. Tendered into evidence as Exhibit 25 was a still from the CCTV footage disc from the Z - Tronics Computer Store on 13 April 2014, which is said to depict the Defendants' Toyota Rav 4 proceeding along Market Street, slowing at the give way sign on Market Street, then crossing over Pitt Street to continue onto Market Street in a northerly direction; 2. On 2 July 2014, police conducted a re-enactment of the drive-by of the Frist Defendant's vehicle appearing in Exhibit 25, using the Defendant's vehicle which was at that stage in police custody following its seizure; 3. Tendered into evidence as Exhibit 26 was the CCTV footage disc from the Z - Tronics Computer Store on 2 July 2014, which depicted the First Defendant's vehicle in the re-enactment at 8.06 p.m. 06 secs 2 July 2014; 4. Tendered into evidence as Exhibit 27 was a still from the CCTV footage disc from the Z - Tronics Computer Store on 2 July 2014, which is said to depict the Defendants' Toyota Rav 4 motor vehicle in its re-enactment phase, proceeding along Market Street, slowing at the give way sign on Market Street, then crossing over Pitt Street to continue onto Market Street in a northerly direction; 5. At 1.00 p.m. on 30 July 2014, at Castle Hill Police Station with an interpreter present, both Defendants were charged; 6. On 30 July 2014, the Officer conducted a forensic procedure consisting of eight photographs being taken of the top, face and side of the First Defendant's head, which were admitted into evidence and marked Exhibit 28; 7. In cross-examination, the Officer conceded that he did not make enquiries as to whether there were any employees nor whether the Defendants had had any problems with the tattoo parlour. He did, however, ascertain that police had been called to the tattoo parlour in the past, some time ago; 8. As to the CCTV footage of the rear kitchen area, there was a fair amount of paint covering the dome but could not recall precisely how much; 9. The takeaway food shop's CCTV cameras were 13 minutes behind real time and he agreed with the propositions put to him that the container seen sliding along the floor at 12.20 a.m. 45 secs 13 April 2014 footage time was more likely 12.33 a.m. 45 secs 13 April 2014 real time and that the accelerant igniting at 12.23 a.m. 13 April 2014 footage time was more likely 12.36 a.m. 13 April 2014 real time; 10. Originally, he wanted to obtain a statement from the First Defendant but after reviewing the CCTV footage from the takeaway food shop decided that the Defendants were to be charged; 11. He afforded the First Defendant an opportunity to obtain legal advice and, upon calling him the next day, the First Defendant indicated that he did not wish to speak to him; 12. When the First Defendant attended the takeaway shop at 5.00 a.m. on 13 April 2014, after being informed of the fire, he attended in the Lexus motor vehicle, not the Toyota Rav 4 motor vehicle; 13. He conceded in cross-examination that the Toyota Rav 4 motor vehicle appeared twice rather than once in the CCTV footage from the Z - Tronics Computer Store on 13 April 2014. It was first seen at 12.23 a.m. on 13 April 2014 travelling in a southerly direction along Pitt Street and turning right onto Market Street (towards the CCTV camera). It was next seen about 40 secs later travelling in a northerly direction along Market Street, crossing Pitt Street and continuing along Market Street (away from the CCTV camera); 14. On or about 30 July 2014, he conducted a forensic procedure which consisted of the taking of eight photographs of the Defendant (Exhibit 28). (It is to be noted that two of the four CCTV stills of the suspect shown in Exhibit 20 in the rear yard of the tattoo parlour on 13 April 2014 show a shiny spot in the scalp to the right side of the suspect's head. The photos of the First Defendant's head from the forensic procedure carried out on 30 July 2014, in Exhibit 28, show a marked shiny spot in the scalp to the left side of the First Defendant's head, but also to a lesser extent, the right side. From my observations of the First Defendant during the hearing, over two years after the fire the subject of these proceedings, there appears to be a slight part to the right side of the First Defendant's hair); 15. Much like the evidence of D/S/C Paul Rosano, the Officer readily conceded that the reason behind attending the Defendants' home on 27 June 2014 was to generate conversation between the First and Second Defendants which would be captured by the listening device covertly situated within the home; 16. The Officer revealed in cross-examination that he had attended the takeaway food shop previously as a customer, having been served by both Defendants and not by anyone else. On those occasions, he spoke with the First Defendant in English.
4. Oral evidence was given by Fire Officer Brendan Doyle. After affirming the version provided in his written statements dated 14 June 2014 and 5 August 2014 (Exhibit 11), he identified the two LPG cylinders in paragraph five of his first statement as being those shown in photograph 34 of the second Scene of Crime Officer's Report (Exhibit 12). He was unable to ascertain the fuel of the fire because he was in breathing apparatus but had identified three seats of fire, each on the right side of the premises when looking from the street and each about five metres apart from one another.
5. Oral evidence was given by Cst Stuart Davenport. After affirming the version provided in his written statement dated 22 August 2014 (Exhibit 13), his evidence was that: - 1. He believed that the Defendants' motor vehicle, which he physically inspected in the police holding yard on 15 July 2014 (Exhibit 13) was a 2009 model Toyota Rav 4; 2. He believed that there were thousands of 2009 model Toyota Rav 4 motor vehicles manufactured; 3. He believed that there were hundreds, maybe thousands, of dark blue 2009 model Toyota Rav 4 motor vehicles manufactured; 4. He did not make any enquiries as to how many 2009 model Toyota Rav 4 motor vehicles were in the Riverstone area; 5. In relation to his observations, the Toyota Rav 4 motor vehicle appearing in the CCTV footage from the Z - Tronics Computer Store (Exhibits 24 and 25) on 13 April 2014 was "similar to" the Defendants' Toyota Rav 4 motor vehicle, which he physically inspected in the police holding yard (Exhibit 13); 6. He was unable to say for sure what the year model was of the Toyota Rav 4 which he physically inspected in the police holding yard but that it was a "3rd generation" Toyota Rav 4 which was manufactured between 2006 and 2012.
6. On its own, this uncertainty, or perhaps better put, mathematical likelihood, was problematic. The High Court, albeit in a different context, namely that of identification of a person, considered the question of evidence led in the trial of an accused being "consistent" with either guilt or innocence via the purported identification of the accused from photographs, along the lines of "this looks like the person that I seen": Pitkin v R (1995) 130 ALR 35. The Court (per Deane, Toohey and McHugh JJ) (at 39), noted: "… If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. That point was made by Mason CJ, Dawson and Toohey JJ in Knight v R (1992) 175 CLR 495."
7. However, it is to be remembered that this evidence was not in isolation. It was just another strand in the cable of circumstantial reasoning.
8. Oral evidence was given by D/S/C Jun Tong. His evidence was that: - 1. He was assigned the task of listening to legally recorded conversations derived from the listening device covertly installed in the home of the Defendants; 2. Between 16 June 2014 and 30 July 2014, he listened to conversations in the Chinese language between the First and Second Defendants, some of which were in the Shanghainese dialect and some of which were in the Mandarin dialect, both with which he was familiar, having been born in Shanghai and having spoken the language with his parents for 18 years; 3. He agreed, in cross-examination, with the proposition that the majority of his tasks was to listen to audio files derived from the listening device within the home and that on 2 July 2014, he notified the Officer-in-Charge that he had identified a relevant conversation from the 27 June 2014 audio file; 4. He agreed with the proposition put to him in cross-examination that he listened to "hours and hours and hours" of recordings derived from the listening device within the home; 5. He agreed with the proposition put to him in cross-examination that he listened to "hours and hours" of recordings derived from the listening devices secreted within the motor vehicles, but much less than those derived from the house;
9. Oral evidence was given by Ms Cathy Xie (Interpreter). Her evidence was that: - 1. She was a NAATI Accredited Interpreter employed by Multicultural NSW with over 25 years' experience; 2. She specialised in interpreting the Chinese, Mandarin and Shanghainese dialect; 3. On 16 April 2014, she listened to a disc containing an audio file of a conversation between the First and Second Defendants on 27 June 2014, which was captured by the covert listening device installed by police within the home; 4. She prepared a typed transcript of the recording (which was tendered into evidence by consent and without objection of counsel for both Defendants and marked Exhibit 29); 5. She accepted, in cross-examination, consistent with her transcript, that at various times, there were a number of inaudible comments; 6. She accepted, in cross-examination, that there were gaps in the conversation which did not appear in her transcript; 7. She did not have a specific recollection of what was on the disc which she heard some two years ago; 8. (After adjourning her evidence so that she could hear the recording again and be better placed to answer the questions asked of her in cross-examination, and to enable her to undertake a comparison with an interpretation prepared by Mr Sean Cheng (an accredited interpreter commissioned by the Defendants), she returned to the witness box and continued giving her evidence); 9. Upon further cross-examination, she sought to amend her interpretation of the word "crouching" to "squatting". Further, she sought to amend line 41 of her transcript, being words attributed to the First Defendant, by adding the words "that I got someone else did it" in line 2, before further words were heard which were inaudible; 10. Wherever there was mumbling, it was in the order of one to two seconds; 11. She was not briefed with the CCTV stills in relation to the Crown case; 12. She was able to hear the tone of the voices but did not say that anger was expressed by either party; 13. Her insertion of question marks was based on the tone of the voice and the words used in the sentence; 14. In line 80, she listened to the phrase "what about my clothes" repeatedly and, when asked whether that phrase could have been "the clothes" she believed that her interpretation of "my clothes" was correct, the literal translation being "my piece of clothes, what about?". She again affirmed that the word "my" was specifically said by the First Defendant in that sentence; 15. In re-examination she confirmed that she had been speaking Shanghainese since she was born, that it was her mother tongue and that, as far as she knew, there was no NAATI accreditation for Shanghainese.
10. To better understand the Crown case, to the extent that it was reliant, in part, on the interpretation of the conversations between the Defendants, it is appropriate to set out in full the interpretation, in English, of the conversation transcribed by Ms Xie: - Legend (Voices) V.1: Mrs Shu Xuan (Second Defendant) V.2: Mr Zhijiang Cheng (First Defendant) V: Unidentified (the video playback recording heard in the background) 1. V.1: This is one. This is another one. This one is not important. 2. V.1: He said, first one, you painted over the kitchen camera. Did you do it? 3. V.2: No, just touched it. I was painting there and accidentally touched it. Doesn't matter, it couldn't be seen anyway. 4. V.1: This was the first one. The second one, I didn't get to record this part, maybe it was too short, not recorded. (started to play the recording) 5. V.2: You shouldn't have answered any question. 6. V.1: He said, the person went into the door, went into the room. The door was opened, he went inside. 7. V.2: I say I can't see that. They never told me that… 8. V.1: They showed me four black and white photos. Two of them were with a hat. 9. V.2: Two without the hat? 10. V.1: Yeah. 11. V.2: I didn't wear a hat? 12. V.1 Yeah. 13. V.2 What? That's impossible. Could you see me? 14. V.1: The hair was black, crouching on the ground looking at things. 15. V.2 It's impossible. I crouched… 16. V.1: Did you crouch? 17. V.2: Didn't, (I) did not crouch down at all. could you see if it was the same clothes? 18. V.1: Had a hat on. 19. V.2:Did you say two with a hat and two without a hat? 20. V.1 Yeah. 21. V.2 Not wearing a hat? 22. V.1: All crouching on the ground, crouching on the ground….. 23. V.2: I was like this…ran over there like this. (I) wouldn't crouch on the ground. Because… 24. V.1: Did you ever take your hat off? 25. V.2: No. 26. V.1: Never took it off? 27. V.2: My hat wasn't… 28. V.1: so their evidence was fake. 29. V.2 You didn't need to answer any questions, answer no questions at all. If….(non-audible)… 30. V.1: I recorded. I recorded everything I said. 31. V.2: …(Non-audible)… doesn't matter, none of these evidence are evidence. 32. V.1: …(Non-audible)… He said you entered like this. 33. V.2: They could only try to trick you, just ignore them. 34. V.1: Why were you painting? 35. V.2: I said painting, I saw the paint was not right so I stopped painting. I only needed a little bit. Doesn't matter, doesn't matter… 36. V.1: …(Non-audible)…I saw it, I saw it in the photo. 37. V.2: Could you see the person was me? 38. V.1: No! 39. V.2: That's fine then. 40. V.1: There was one later on, but he's got black hair. 41. V.2: Black hair (laugh). I am not the only one with black hair. Now they are suspecting, should not be suspecting me, they should suspect … Additional words: that I got someone else to do it…They should …otherwise there's no way…(Non-audible)… 42. V.1: ….This part did not get recorded. 43. V.1: I did not get to record the last bit. 44. V.2: …(Non-audible)… 45. V.1: I the last part, I asked him to repeat it one more time, said that this person this, this person this person, door, the door was open. This person went in…like this…and this…. This was not recorded, the most important part was not recorded. 46. V.2: Doesn't matter, this does not matter. They don't have direct evidence, so they need to put these together. ….(Non-audible)… first……(Non-audible)…the paint. It's such an easy thing to touch that accidentally when I was painting. 47. V.1: About the photos……(Non-audible)… 48. V.2: Front or back? 49. V.1: Back. 50. V.2: ..(Non-audible).. They brought out 4 photos…(Non-audible)… 51. V.1: But, why …(Non-audible)…crouching, all crouching there….(Non-audible) 52. V.2: Really? I did not crouch down… ran over ……(Non-audible)… 53. V.1: Why were there two photos showing you crouching? 54. V.2: …(Non-audible)… 55. V.1: …(Non-audible)… 56. V.2: …didn't say….(Non-audible) 57. V.1: He gave it to Ann, Ann did not reply, so he came over today. …(Non-audible)… 58. V.2: ……(Non-audible)… 59. V.1: I said, why there was no photo of Jason painting? He said …(Non-audible).… I said … need to photograph it, need to show me. 60. V.2: This needs to be seen. (Whispering) …(Non-audible)…watching from the day before, he knew, he happened to see me painting … excuse… 61. V.1: I told him, I told him "you should go and have a look at it carefully, see who did what".… It can't be seen. 62. V.2: …(Non-audible)… 63. V.1: This has to be taken, have to get it. 64. V.2: before that, inside the shop, the premises we leased, taking it down… 65. V.1: …(Non-audible)… 66. V.2: …That proved what we did was right, right? 67. V.1: I am telling you, you should… 68. V.2: …yes. I went there on Friday, stayed in the shop…things…you also need…(Non-audible)… 69. V.1: Yes, he couldn't produce, he was unable to produce. 70. V.2: I really… 71. V.1: I said to him, I said, why don't you go and see who closed door on Thursday night. We have always been doing this in the past. 72. V.2: …(Non-audible)… 73. V.1: Right? You can see that too. That means if Jason opened it, it should be seen. You show it to us. It should be able to tell. 74. V.2: …(Non-audible)…Can you see him …(Non-audible)…? 75. V.1: … went to the back…He was like that… 76. V.2; Crouched down?! That's impossible. I dashed towards there… like this. How was it possible for me to crouch under there? 77. V.1: Crouching. 78. V.2: I ran past there. 79. V.1: Crouching. 80. V.2: What about my clothes? 81. V.1: White with a hat. 82. V.2: …(Non-audible)… 83. V.1: …(Non-audible)… 84. V.2: They ask me "Was that you?" I say I don't know. I wouldn't say yes or no. 85. V.1: You say you were asleep. 86. V.2: I was asleep, how would I know. 87. V.1: sleeping 88. V.2: This was… 89. V.1; Crouching, crouching. 90. V.2: Impossible, it was impossible to stop. …(Non-audible)… 91. V.1: …(Non-audible)… 92. V.2: …(Non-audible)… 93. V.1: …correct. On that day, you definitely went inside, opened the door and went in. I asked him to produce evidence, the evidence of Jason opening the door… 94. V.2: Did they show you? 95. V.1: No. ( Transcription ended at 9:54 ) [My emphasis added]
11. Oral evidence was given by Ms Lorraine Young (Principal, Raine and Horne Real Estate Agency, Blacktown). After affirming the version provided in her written statement dated 16 July 2014 (Exhibit 15), her evidence was that all communications between her office and the Defendants (as lessees) were with the Second Defendant. Ms Young was not cross-examined by counsel for either Defendant.
12. Oral evidence was given by Mr Robert Martinez (Environmental Health Officer - Blacktown Council). The Crown contended that the purpose for which it adduced evidence from Mr Martinez was related to motive. After affirming the version provided in his written statement dated 29 July 2014 (Exhibit 16), his evidence was that: - 1. He commenced employment with Blacktown Council in June 2012; 2. All communications between with the takeaway food shop owners were with the Second Defendant; 3. He did not know the First Defendant; 4. He conducted three inspections, namely, 26 September 2012, 10 May 2013 and 13 November 2013; 5. The only other person he had seen at the takeaway food shop was the Second Defendant, who he assumed was the husband of the First Defendant; 6. On the second inspection, he noticed two children, who he assumed were the Defendants' children, playing video games; 7. As a consequence of the last inspection on 13 November 2013, an infringement notice was issued only in relation to a food temperature control issue regarding the chickens on display not being hot enough, although there were a number of other issues, for which an infringement could have been issued, including cleanliness within the walk-in cool room; a lack of pest control records being kept; dead cockroaches in egg shells in the food preparation area; food stored on the floor of the cool room; the ceiling consisting of ceiling panels and there being missing drop ceiling panels over open food areas; the basin in the toilet not having a single hot/cold mixer, soap and towels; the lack of another hand wash basin closer to the front food preparation area; the rear basin being used for storage; and general personal items, including children's toys, being stored in the kitchen area, some of which were breaches of the Food Standards Code and the Australian Standards; 8. Some of the issues identified had been mentioned at previous inspections; 9. The fact that it was an old shop was a consideration as part of the inspection but that because the Food Standards Code had not been complied with, leeway was not appropriate.
13. Oral evidence was given by Mr Spencer Hon (Insurance Broker). A Cantonese speaking interpreter was available but not utilised. After affirming the version provided in his written statement dated 7 October 2014 (Exhibit 18), his evidence was that: - 1. He was the principal of Eternity Insurance and Financial Services, the broker for the Defendants' business; 2. All communications between him and the Defendants were with the Second Defendant; 3. He understood that the Second Defendant owned the business; 4. The one communication with the First Defendant was when he lodged the insurance claim for the fire damage; 5. In cross-examination by counsel for the Second Defendant, he confirmed that he had been involved with insuring the takeaway food shop since 2010; 6. That prior to 16 October 2013, when insurance was taken out with Lumley Insurance, the insurer was Resilium; 7. In or about September or October 2013, he visited the takeaway food shop and spoke with the Second Defendant who had apparently indicated a concern about the tattoo parlour which had "opened up next door". (It is to be noted that he did not give any evidence as to when the tattoo parlour opened up next door. This was later confirmed by Ms Sharon Page, the owner of the tattoo parlour, as being December 2012); 8. He agreed that he had suggested business interruption insurance, in respect of which he obtained quotes and effected in February 2014; 9. He agreed that his job was to ensure adequate insurance cover and that in his opinion, if a tattoo shop was next door to the takeaway food shop, business interruption insurance should be added; 10. He was taken through each of the 16 hand-written entries on his File Note spanning 14 October 2013 to 26 September 2014 in cross-examination. (It became clear that all of the entries which pre-dated the fire on 13 April 2014 involved interactions between him and the Second Defendant with a view to increasing insurance cover for the takeaway food shop and/or adding a business interruption component to the policy. On and from 14 April 2014, the day after the arson attack, his interactions were with the First Defendant who was responsible for the lodgement of the claim through Mr Hon and who had followed up, periodically, the progress of the assessment of the insurance claim on the part of the insurer. It seemed, however, somewhat incredulous that the First Defendant featured nowhere in the various interactions (as either insured, lessees or even proprietors), these being tasks always carried out by the Second Defendant, and yet on and from the lodgement of the insurance claim on 14 April 2014, the interactions between the insurer and the Defendants occurred through the First Defendant. The other difficulty I had was accepting the portion of Mr Hon's oral evidence that the reason for the Second Defendant's telephone call to him in February 2014 was to outline that "there was a tattoo parlour neighbouring her shop and she was worried that something may happen to the tattoo parlour which would affect their business." Whilst a reference to the neighbouring tattoo parlour appears in paragraph 9 of Mr Hon's statement dated 7 October 2014, no reference whatsoever is made in his copious hand-written File Note, consisting of 16 detailed entries between 14 October 2013 and 26 September 2014. The detail of the entries is such that Mr Hon recorded precise dates and times, down to the minute, including the concerns identified and questions asked by the insured and advice given by him. Yet, there was no record referencing the words "tattoo parlour" or "neighbouring shop' in the File Note, in relation to a tattoo parlour which, by October 2013, had been operating for about 10 months, and by February 2014, when the conversation with the Second Defendant outlined in paragraph 9 of his statement was said to have taken place, had been operating for some 14 months).
14. Mr Hon was not cross-examined by counsel for the First Defendant.
15. Oral evidence was given by Mr Angelo Cauchi (Property Owner). After affirming the version provided in his written statement dated 16 February 2015 (Exhibit 19), his evidence was that: - 1. He was the owner of the property known as 28 - 30 Garfield Road East, Riverstone, which consisted of both the takeaway food shop and the tattoo parlour as one property; 2. The property was purchased in June 1996; 3. He was aware that the rear door had no actual lock but was secured by placing a metal rod across the door; 4. He did not have keys to the premises at 13 April 2014; 5. He had no reason to destroy his own property by fire; 6. In cross-examination, he gave evidence that the last time he had been at the back of the shop before 13 April 2014 was about four to five years ago but that he went to Riverstone every day and had been inside the shop in the front counter area more recently; 7. He recalled seeing a sign a few days before the fire had broken out that the takeaway food shop was closed for renovations, although he did not know anything about the dates during which the shop would be closed for such renovations; 8. As at April 2014, he did not have building insurance; 9. The property had been insured for about 14 years but after part of the property was leased to the tattoo shop, the insurer declined to insure the building; 10. In cross-examination, he agreed that Blacktown Council required certain works to be carried out to the takeaway food shop; 11. There was no dispute, on his part, as to who was responsible for those repairs (the lessee) and that there may have been an exchange as to who should pay for such repairs.
16. Oral evidence was given by Ms Sharon Page (Owner of Skin Masons Tattoo Parlour). Her statement dated 13 June 2014 was tendered into evidence, and marked Exhibit 30. Collectively, her statement and oral evidence was that: - 1. She took over the tattoo parlour business at that particular location in December 2012; 2. Before that time, she was working with the previous owner of the Skin Masons Tattoo Parlour when the shop was located at a different address, namely, 71 Garfield Road East, Riverstone, where she had worked for about six years; 3. Her assistant, Mr Shane Sparks, looked after the shop and had authority to view and operate the security cameras, and possessed a set of keys to the premises; 4. She came to know of the fire at about 1.00 a .m. on 13 April 2014 and commenced making her way back to Sydney from Coffs Harbour, where she had travelled on a pre-planned holiday; 5. The cost of the repairs to her shop were in the vicinity of $1,100.00, which she paid as she did not have business or other insurance; 6. She was aware that the time displayed on the CCTV footage was one hour ahead because it had not been changed to allow for daylight saving; 7. In cross-examination, she confirmed that her business had seven CCTV cameras installed, two affixed to the front wall outside, one affixed to the rear wall in the yard, and five internal cameras; 8. As to the question of whether police had been called out to the premises previously, her evidence was that she liaised with police regularly if there was any criminal activity whatsoever, that she had no biker affiliations, despite some people having come to her shop seeking to become partners, and that, to her knowledge, there was no other tattoo shop operating in the area, other than an advertisement she recalled seeing in relation to someone who operated from a backyard; 9. Further, in cross-examination, she categorically confirmed the date on which the tattoo parlour opened, and had her opening party, as being 17 December 2012.
17. At this juncture, the Crown case closed. The First Defendant conceded that there was a prima facie case in relation to both the arson charge and the fraud charge. The Second Defendant did not concede that there was a prima facie case in relation to the one and only charge, that of attempted fraud, preferred against her. After hearing submissions from the Crown and the Second Defendant's counsel (supported by written submissions), I was satisfied that there was, in relation to the Second Defendant, at least a prima facie case. Detailed ex tempore reasons for decision were given and need not be repeated here.
18. In a defence case for both the First and Second Defendants, Mr Sean Cheng (Interpreter) was called. His expert certificate, pursuant to s.177 of the Evidence Act 1995 (NSW) together with his own interpretation of the conversation captured by the covert listening device on 27 June 2014 between the two Defendants, were tendered into evidence as Exhibits 31 and 32. Indeed, a synchronisation (audio CD) of the words spoken in Shanghainese, their English equivalent and the timing at which the words were spoken was also prepared by him and tendered into evidence as Exhibit 33. It was his evidence that: - 1. He had been a NAATI Accredited Interpreter since 2009 specialising in English and Mandarin but he also spoke the Shanghainese and Cantonese dialects; 2. He was born in Shanghai and the Shanghainese dialect was his native language. He lived in Shanghai from age 12 through to 26; 3. He was briefed with the listening device audio file, Detective Tong's translation of the listening device audio file into Chinese, Detective Tong's translation of the listening device audio file into English, a transcription of the listening device audio file by Ms Cathy Xie (NAATI Accredited Interpreter), and a transcription of the listening device audio file by the Second Defendant herself. Apart from those five items, he prepared his own transcription of the audio recording and synchronisation (Exhibits 32 and 33) without looking at any of the previous transcriptions completed by others so as not to be influenced by the words or phrases used by anyone else; 4. After completing his transcription and synchronisation disc, he then viewed the other transcriptions but did not change any of his interpretations as a result; 5. Any inaudible components of his interpretation were referred to as "recording only" or "recording playback only" and he did not pay attention to those segments. (What was clear from his evidence was that those portions were a reference to a multimedia file being played by the Second Defendant on her telephone whilst engaged in the relevant discussion with the First Defendant). 6. In order to assist in understanding the context and weight to be ultimately placed on the evidence, he took into account the tone, gaps in conversation and inaudible parts of the recording. He conceded that, to some extent, he needed to use words appearing before and after certain sentences and to gain a better understanding, given that he had a limited context; 7. Because Chinese was a topic dominant language, there were numerous methods by which to translate, including word level, phrase level, sentence level and pragmatic level. When the topic was lacking or had a limited context, he would try to refrain from inferring or guessing and preferred to stick to the words so as to make the sentence, word and grammar correct. (It is important to note that whatever level of interpretation methodology was used, the interpretation was provided by accredited interpreters. The context, however, was provided by the strands of the Crown's cable of circumstantial reasoning, which, as the tribunal of fact, ought not be overlooked. In my view, where context was lacking, the surrounding evidence from other witnesses, circumstantial or otherwise, could permissibly be utilised to gain a greater understanding of the conversation in which the First and Second Defendant were engaged, including to draw inferences). 8. He was unable to hear the additional words attributed to the First Defendant by the interpreter Ms Cathy Xie, along the lines of, "that I got someone else did it". If it was marked as not audible, it meant that it was not audible to him. 9. The dichotomy between the words "my" and "the" was one purely of word choice. The Chinese language did not have the definite article. Therefore, based on the audible parts of his transcription, he noted that the word "my" was not used. 10. As to the dichotomy between "must" and "definitely", both were viable options in the interpretation, but it was difficult because he did not have the full context. 11. As to the phrase "we did it right", he was asked whether "we" could also mean "I". It was his evidence that in this particular instance, his choice was for the most common equivalent to be used based on his translation decision, namely, "we"; 12. In cross-examination, he confirmed that there was no available NAATI accreditation in the Shanghainese dialect; 13. He also stated that he did not do a very detailed comparison of, and could not recall, the non-audible parts in his interpretation as opposed to Ms Cathy Xie's.
19. For completeness, the interpretation prepared by Mr Sean Cheng was as follows: - Legend (Voices) X: Mrs Shu Xuan (Second Defendant) C: Mr Zhijiang Cheng (First Defendant) n-a: Non-audible 1 X: This is one, and another one 2 (recording only) 3 X: This one is not important 4 (recording only) 5 X: Eh, he said the first point 6 X: That camera in the Kitchen, eh, you painted it. 7 X: Did you paint it? 8 C: No, I (happened to) stain it. I was doing some painting around there, and stained it. 9 C: It doesn't matter, things can't be seen clearly anyway. 10 X: This is one point, the second point 11 X: I recorded this part for you. 12 X: Eh, …(n-a)…too short…the recording 13 (recording playback only) 14 C: ...(n-a)… 15 (recording playback only) 16 C: You shouldn't have answered any questions. 17 (recording playback only) 18 X: This is what he said about entering through the door. 19 C: Uh-huh 20 (recording playback only) 21 X: Entered the room, the door, the door was opened, he went in 22 C: ...(n-a)… 23 C: He has never told me about it, ……(n-a) 24 X: Also, he showed me a few…(n- a)…photos, two of them with a hat 25 C: Then two of them with no hats? X: Uh-huh 26 C: I did not wear hat, ah? Not possible, could you see me? 27 X: The hairs are black, squatting down…(n-a)…something 28 C: Not possible 29 C:……(n-a) 30 X: Did you squat down over there? C: No I did not, I did not. 31 C: ……(n-a) 32 X: ...Wearing hat 33 C: You said two with a hat, and two with no hats? 34 X: yea 35 C: No hats? 36 X: Just squatting down, squatting down 37 C: ……(n-a) 38 C: ……(n-a)……wouldn't have squatted down……(n-a)…… 39 X: You did not take off your hat? 40 C: No, I did not. 41 X: Never ever 42 C: I…(n-a)…no 43 X: Then their evidence is false. 44 C: Uh-huh 45 C: …(n-a)… X: …(n-a)… 46 C: You could have not answered any questions…(n-a)…saying too much, he would…(n-a)… 47 X: I'm not afraid, I've recorded everything I said 48 C: ……(n-a) 49 C: ……(n-a) 50 C: ……(n-a) 51 C: ……(n-a) 52 C: ……(n-a) 53 C: ……(n-a) 55 C: He was trying to trick you, pay no attention to him. 56 X: Why did you want to do the painting? 57 C: That's right, I wanted to paint, but as soon as I see the paint is wrong, I stopped painting. 58 C: ……(n-a)……It's okay, it's okay, this doesn't matter…(n-a)… 59 X: ...(n-a)... 60 C: ...(n-a)... 61 X: I saw, I saw (it/him?) in the photo. 62 C: Was it me you saw? 63 X: No! 64 C: Then it's alright! 65 X: ...(n-a) ... This man has black hairs 66 C: Black hairs, I'm not the only one with black hairs… 67 C: They are now suspecting...(n-a)... 68 C: ...(n-a)…He is now telling you...(n- a)... 69 X: ...(n-a)... 70 C: He could not be certain, probably tomorrow he would, he would...(n- a)..., that's why he wanted to...(n- a)..., that's why he ...(n-a)…this...(n- a)…time...(n-a)... 71 C: Isn't it, making you...(n-a)... 72 C: ...(n-a)... 73 X: ...(n-a)…This part, I failed to record this part... 74 X: I failed to record the last bit 75 C: ...(n-a)... 76 X: Didn't manage to record this part, this...(n-a)... 77 X: I asked him to repeat the last part, like, this man went in, this man did this , this man did that, well, this man, the door, the door was opened, this man went in, and this man was like this, so much talk but didn't managed to record it. 78 X: Didn't manage to record the most important bits 79 C: It's alright ....(n-a)... 80 C: He wants to take this evidence...(n-a)…the first thing...(n-a)…needed to do the painting, in the end, when ...(n- a)…(I started) I found the paint was wrong, so I did not continue the painting...(n-a)... so the paint, it's easy for things to get stained, isn't it? 81 X: ...(n-a)…photos... 82 C: Front or back 83 X: Back 84 C: ...(n-a)…He showed four photos. 85 X: ...(noise)... 86 X: squatting down, all squatting down ....(n-a)... 87 X: …photos…(n-a)…two of them with black hairs...(n-a)... 88 C: It's okay ...(n-a)... 89 C: No need to be nervous ...(n-a)... 90 X: ...(n-a)... 91 C: Didn't say (anything)...(n-a)... 92 X: ...(n-a)…He gave (it) to ANN,ANN hasn't replied, so he came here today...(n-a)... 93 C: …(n-a)… 94 X: I said why there are no footages of Jason painting…(n-a)…, I said have to get it! if taken, must watch! 95 C: This must be watched. 96 C: …(n-a)…he just need to see this evidence…(n-a)… 97 X: yea, I told him… 98 C: …(n-a)…excuses 99 X: I told him, I said you need to take a close look at that…(n-a) who did it, who…(n-a)…, just can't be seen clearly 100 C: …(n-a)… 101 X: …(n-a)… 102 C: You previously…we were at the shop…(n-a)… 103 X& C:…(n-a)… 104 C: …that means we did it right, doesn't it! 105 X: I said, you need to... 106 C: Right, on Friday I will go…(n- a)…have a look…(n-a)… 107 X: …(n-a)…, isn't it! 108 C: …(n-a)… 109 X: He just wasn't able to show; he just wasn't able to show; C: …(n-a)… 110 X: I said to him, you go…(n-a)… look on the night of …(n-a)… who closed the door, who…(n-a)…we were always like this, weren't we! 111 X: You can also tell, which means if it was Jason who opened…(n-a)… it can be seen... 112 C: …(n-a)…could see him…(n-a)… 113 X: always…(n-a)…down below…(n- a)…like this... 114 C: …(n-a)… 115 X: like this 116 C: squatting down? 117 X: yea 118 C: you can't see! 119 C: …(n-a)… 120 C: …(n-a)… 121 X: squatting down 122 C: I was running towards there 123 X: squatting down 124 C: …(n-a)… what about the clothes? 125 X: white, whit a hat 126 X& C: …(n-a)… 127 C: Did he ask you …(n-a)…don't know…(n-a)… 128 X: You just say 'I was sleeping'. 129 C: I was sleeping what did I know? 130 X: You were sleeping 131 C: You, about this, you…(n-a)… 132 X: squatting down, squatting down 133 C: Impossible, stopping is not possible…(n-a)… 134 X & C: …(n-a)…(voice too low + noise) 135 X: Right, you must have entered through this door, opened it and entered, I asked him for evidence, about the evidence of Jason opening this door …(n-a)… 136 Irrelevant content and noise [My emphasis added]
20. No further evidence was called by either the First or the Second Defendant and their cases, respectively, closed.
21. Both counsel for the Defendants submitted that the Court could not, on the whole of the evidence before it, be satisfied, beyond reasonable doubt, that the Defendants were guilty of the offences with which they had been charged: May v O'Sullivan [1955] HCA 38 (at [7]).
22. It was contended by the First Defendant's counsel that the evidence in relation to the identification of the First Defendant as the person suspected of having lit the fire was equivocal and that insofar as the interpretation was concerned, there were numerous discrepancies and other inferences available. It was conceded, however, that if the arson charge was made out to the requisite criminal standard, then, so too, would the insurance fraud charge be found proved.
23. Counsel for the Second Defendant relied on much the same grounds. However, there was an additional challenge to the prosecution as against the Second Defendant, given the lack of evidence regarding the crystallisation of the understanding or agreement between the Defendants, so as to properly ground the insurance fraud charge as against her, on the basis of joint criminal enterprise.

Consideration

1. The Crown case in relation to the Second Defendant was problematic, particularly because the Court Attendance Notice on which the Crown relied to found the charge of attempting to dishonestly obtain financial advantage by deception was unable to be supported by any evidence, given that the case against the Second Defendant was based wholly on the doctrine of joint criminal enterprise.
2. On this issue, it is instructive to set out the principals identified by Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 at 556- 557 which have been accepted in more recent decisions, including R v Chishimba [2010] NSWCCA 228 (at [29]): - "(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission" (at 556 - 557)."
3. The Court Attendance Notice in relation to the Second Defendant was convoluted and particularised the sequence 2 fraud offence as follows: - Crimes Act 1900 192E(1)(b) Dishonestly obtain financial advantage etc by deception-T1 between 0:01 am 14/04/2014 and 11:59 pm 30/07/2014 at RIVERSTONE did, by deception, that is, by lodging an insurance claim with Lumley Insurance in relation to a fire at the Whammy Burger Takeaway & Cafe, and in doing so knew that her husband had deliberately lit the fire, dishonestly attempt to obtain a financial advantage, to wit, received an insurance payout of $257,500.00. . attempt to commit a serious indictable offence.
4. On any view, there was very little, if any, evidence on which the Crown could rely to prove the understanding or arrangement (which, of course, could be express or inferred from all the circumstances) between the First and Second Defendants, referable solely to the one and only fraud charge preferred against the Second Defendant. Nor was the Crown able to articulate, with any precision, when the understanding or arrangement was reached between the First and Second Defendants referable, again, solely to the fraud charge. It is important to ensure that there not be a conflation of the alleged arson and the alleged attempt to dishonestly obtain financial advantage by deception in circumstances where only one of those charges, the latter, was preferred as against the Second Defendant.
5. It could not be said that the Second Defendant participated in the joint criminal enterprise by committing the crime of attempting to obtain a financial advantage by deception or by simply being present at the time when it was committed when, there was a geographical disconnect, given that the Second Defendant was in the United States at the time when the crime crystallised upon the lodgement of the insurance claim by the First Defendant the day after the arson attack, and especially when there was no evidence that the Second Defendant was materially connected with the claim's lodgement. There were a number of possible alternative categorisations of the Second Defendant's conduct, none of which were averred by the Crown and all of which, to my mind, were unavailable as statutory or other alternatives to the principal offence preferred against the Second Defendant. These possibilities included: - 1. Conspiracy to commit the offence of attempting to dishonestly obtain financial advantage by deception; 2. Accessory before the fact to an offence of attempting to dishonestly obtain financial advantage by deception; 3. Accessory after the fact to an offence of attempting to dishonestly obtain financial advantage by deception; 4. Concealing a serious indictable offence, namely, the attempt by another to dishonestly obtain a financial advantage by deception.
6. It follows, therefore, that the Crown has failed to discharge its onus of proving the sequence 2 charge as against the Second Defendant.
7. This was not a case in respect of which witnesses were sought to be impugned as to credit. There were many questions asked in cross-examination by counsel for the Defendants which raised a number of defence theories, including the possibility someone else, such as an employee at the business, may have been responsible for carrying out the arson attack at the premises. There was no evidence that the Defendants commissioned anyone else to carry out the arson attack. The questions asked of the Officer-in-Charge, to the effect that enquiries were not made of employees, were, in my view, without merit. This was a family run business which, although there was no direct evidence adduced as to takings, finances and accounting, had come up against some problems viz-a-viz the works suddenly required to be carried out at the premises, amongst other things.
8. The evidence given by the Officer-in-Charge and Second-in-Charge, was compelling, resolute and reliable. The investigation was carried out in a thorough manner and, to the extent that questions were asked of them with a view to impugning either their credibility or police methodology, did not have the desired effect. It was readily conceded that there was a purpose in attending the residential premises of the Defendants, as a strategy to generate conversation between the two Defendants which would then be captured on the covert listening device, lawfully installed within the home.
9. Whilst there was no inculpatory conversation captured on the listening device either in the weeks before or the weeks after police attended the premises and showed the Second Defendant four CCTV stills of the suspect, there was relevant inculpatory evidence captured almost immediately thereafter.
10. Although there was an irregularity which the First Defendant's counsel indicated in his opening would need to be the subject of a voir dire (to determine the admissibility of the conversations captured by the listening device within the Defendants' home), this challenge was abandoned mid-way through the hearing. There was, therefore, no issue as to the admissibility of the conversations adduced by the Crown and derived from the covert device.
11. This case was a classic circumstantial case reliant upon strands in a cable rather than indispensable links in a chain. This, of course, does not mean that the Crown's circumstantial case is weaker than a case based on direct evidence. It became clear that as each individual fact was adduced by the Crown in support of the guilt of the Defendants, on their own, they were unable to establish guilt to the requisite criminal standard. However, when considering the evidence in a staged approach, it became clear, and therefore I was able with greater ability to infer and conclude from a combination of pieces of evidence, what the true position was regarding, particularly, the First Defendant.
12. Insofar as the interpretations and translations provided by the accredited interpreters were concerned, it was at the juncture when their interpretations were adduced into evidence that the Court was able to take a more definitive path regarding the inferences available. The interpreters' evidence, whether one accepts the Crown's interpretation or the Defendants' interpretation, noting some minor discrepancies, was compelling, persuasive and resounding. It removed, in the Court's mind as the trier of fact, any ambiguity under which it might otherwise have laboured when presented with the individual pieces of evidence without more. It was damaging to the Defendants' case. Any equivocality from the disjunctive, individual pieces of evidence adduced to that point, was, in my view, eliminated. The recording and translations consisted of outright inculpatory statements; the First Defendant placating, on several occasions, the Second Defendant, in an attempt to ease her mind about the police's inability to prove the allegations levelled against them; instances of tailoring any version which may later be proffered by them; whispering, at the point where the Defendant speaks of an inability to be seen on the footage; instances of placing himself at the location at the time in question; an instance of tailoring any evidence that might later be provided by virtue of suggesting that he was sleeping; and instances of demonstration, squatting and crouching "like this". The attempted challenge by the First and Second Defendants to this evidence was, in my opinion, an after-the-fact rationalisation of their conduct and an attempt to downplay and deflect the true meaning conveyed through the recorded conversation.
13. There were 14 strands in the circumstantial line of reasoning which progressively strengthened the Crown case against the First Defendant, bringing it, in my opinion, within the bounds of proof beyond reasonable doubt. These were as follows: - 1. The Defendants' enquiries made in October 2013 to check what the additional premium would be if a decision was made to increase insurance cover, first, for the base fire and perils component of the policy, then, to later add business interruption cover. 2. The Blacktown Council inspection and infringement issued for non-compliance with both the Food Standards Code and the Australian Standards. 3. The active dispute with the lessor as to the liability for rectification works required to be carried out to the premises by virtue of Blacktown Council's non-compliance infringement. 4. Although consistent with their rental payments for the most part, the occasion on which the rental payments fell behind was most proximate in time to the increased insurance cover, the Council inspection, the non-compliance notice and the fire. 5. The First Defendant being at the premises two days earlier, conducting painting and other work in the rear kitchen area; being the only one there; and being the last to leave. 6. The First Defendant painting over the CCTV footage camera in the rear kitchen area, where the preparatory acts for the fire were later carried out. 7. The rear metal door of the shop (which did not have a key-related entry lock) being left unsecured (without the steel rod in place from the inside), to enable entry to later be made from the rear of the premises. 8. Neither the lessor, nor anyone else (including the managing agents), having keys to the takeaway food shop. 9. The motor vehicle being seen in the CCTV footage and stills from the Z - Tronics Computer Store, in the short period of time immediately before the fire, and being consistent with the First Defendant's Toyota Rav 4 (also replicated with great consistency in the re-enactment). 10. The person who appeared to be "crouching" (to which there was a joinder of issue in the recorded listening device conversation) but seen "running" at the rear of the two premises, to and from the takeaway food shop, being the First Defendant. 11. The shiny spot in the First Defendant's scalp being more marked to the left side in the forensic procedure photos, but appearing also to the right side in the forensic procedure photos and in person during the hearing. 12. When asked by the investigating officer (upon attending the takeaway food shop in the hours after the fire) about insurance, the First Defendant advised that his wife took care of all the paperwork for the business, his wife ran the business, and he just worked there. 13. The search and location of the petrol nozzle in the rear boot of the First Defendant's Toyota Rav 4 motor vehicle (the same vehicle seen in the CCTV footage and stills from the Z - Tronics Computer Store, in the short period of time immediately before the fire) upon execution of the search warrant at the Defendants' home. 14. The inculpatory conversation captured by the covert listening device in the home of the Defendants.
14. The conclusions reached, as the tribunal of fact, and in respect of which findings of fact are made beyond reasonable doubt are that: - 1. The First Defendant entered the takeaway food shop from the rear yard of the tattoo shop. 2. The First Defendant was responsible for lighting the fire at, and which damaged, the takeaway food shop. 3. The First Defendant did so with a view to obtaining, dishonestly, insurance moneys for which the Defendants were covered. 4. The First Defendant was in the vicinity of the takeaway food shop within less than one hour immediately preceding the fire. 5. This was not an isolated arson attack carried out by either an employee or someone disgruntled with the neighbouring business.
15. In my view, the emphasised words appearing in the interpreted conversations referred to above, in context, speak volumes.
16. I am satisfied that when the established facts are viewed as a whole, the only rational inference to be drawn, to the exclusion of any other, is the guilt of the First Defendant beyond reasonable doubt.
17. I am satisfied, beyond reasonable doubt, that the First Defendant, by deception, knowing that the fire had been deliberately lit by him, dishonestly attempted to obtain an insurance payout for which the business was insured. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2017