Papanikolaou v R; Tomaras v R

Con Tomaras (Applicant) Regina (Respondent) Representation: Counsel: T Tzovaras - Solicitor Advocate (Applicant Papanikolaou) T Woods (Applicant Tomaras) E Balodis (Respondent)

Solicitors: Tzovaras Legal (Australia Pty Ltd) (Applicant Papanikolaou) Citilawyers Pty Ltd (Applicant Tomaras) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2016/00390727; 2017/00025266 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 August 2020 Before: Hock DCJ File Number(s): 2016/00390727; 2017/00025266

Judgment

1. HOEBEN CJ AT CL: I agree with Hamill J and the orders which he proposes.
2. HAMILL J: A little after 11.00am on Tuesday 29 December 2015 commercial premises at 10-12 Sarah Street, Mascot were observed to be ablaze. Con Tomaras and Angelos Papanikolaou were inside the building a short time earlier but they had left at the time the fire was noticed by a number of locals. They returned to the scene and spoke with police and then provided witness statements. About a year later each was charged with arson. A jury found them guilty of an offence under s 197(1)(b) of the Crimes Act 1900 (NSW) and they were sentenced to terms of imprisonment. They have appealed against the conviction. More correctly, because the grounds of appeal involve a question of fact alone or, perhaps, a question of mixed law and fact, they seek leave to appeal against the conviction. [1] Because of the amount of evidence to be considered and the importance of the issues to each of the applicants, leave to appeal should be granted. However, on close examination, the appeal against conviction has little merit. It was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that each of the applicants was guilty of the offence charged against them. An examination of the record of the trial leaves no reasonable doubt about the guilt of each of the applicants. There are some differences in the case presented against each man and each appeal must be considered on the evidence presented in the individual cases. My conclusion in each appeal is the same. The appeal against conviction must be dismissed. These are my reasons for those conclusions.
3. The applicants contend that the expert evidence at the trial allowed for the possibility that the fire was not deliberately lit. From this contention, the applicants submit that the jury ought to have held a reasonable doubt about their guilt. Whether the fire was deliberately lit was one of the core issues at the trial. It is true that parts of the expert evidence contemplated that the fire may have resulted from an electrical fault or "arcing" and/or as a result of a toaster being left on. However, the preponderance of the expert evidence favoured the hypothesis that the fire was caused by intentional human conduct, that is - somebody deliberately set fire to the building. More importantly, the prosecution did not rely on the expert evidence alone and the jury was not required to consider that body of evidence in a vacuum. The prosecution also adduced a body of circumstantial evidence which, when considered as a whole, gave rise to an irresistible inference that the fire was deliberately lit and that one of the applicants lit it while the other was present. That evidence included:

• The presence of the two men at the building shortly before it caught on fire.
• The association between the men and the owner of the company that owned the building, Lee Min "John" Hu.
• The fact that the building was insured by Mr Hu's companies for $1.8 million, $600,000 for lost rent and $1 million (in total) for stock and contents.
• A lie told separately by each of the applicants in their statements to police about where they met on the morning of the fire.
• Other parts of the accounts given to police that the prosecution alleged were false.
• Established contact, direct or indirect, between the applicants and Mr Hu at around the time of, and in the months after, the fire.
• Recorded communications between the applicants, Mr Hu and others after the fire.
• An invoice in the sum of $30,000 from Mr Papanikolaou to Mr Hu's Company for "project management" and discussions about this debt.
• In Mr Papanikolaou's case, a direct admission made to a man called George Karris.

A very brief overview of the chronology of the litigation: charges, trial, sentence and appeal

Investigation, trial and sentence

1. The fire occurred on 29 December 2015. Over the following months there were police and insurance investigations into the cause of the fire. The investigations included interviewing or attempting to interview witnesses, including the applicants and owner of the building, and electronic surveillance by means of intercepting telephone calls between the applicants and others. The telephone intercepts became an integral part of the prosecution case at trial.
2. The applicants were arrested and charged on 30 December 2016. They were released on bail the following day.
3. Their trial was listed in June 2019. Pre-trial proceedings commenced on 4 June 2019 before her Honour Judge Hock. Mr Papanikolaou was represented by Mr Tzovaras, who also appeared throughout the trial and on the appeal. Mr Tomaras was represented by Mr Brezniak, who appeared at the trial but not the appeal. The matters ventilated at the pre-trial hearing, except for the failure of the prosecution to call Mr Hu, did not form any part of the grounds ultimately pursued on the appeal.
4. On 17 June 2019 the applicants were jointly arraigned on an indictment containing one charge pursuant to s 197(1)(b) of the Crimes Act alleging that they: "On 29 December 2015, at Mascot in the State of New South Wales, dishonestly damaged by means of fire namely, the building and contents of 10 - 12 Sarah Street, Mascot NSW 2020, with the view of making financial gain for himself and others."
5. Each of the applicants pleaded not guilty. The trial proceeded until 8 August 2019 when Judge Hock commenced her summing up. In addition to the one count on the indictment, the jury was instructed that it could consider an alternative verdict of intentionally destroying property by means of fire, an offence under s 195(1)(b) of the Crimes Act.
6. The jury retired to consider its verdicts at 12.40pm on Friday 9 August 2019 but sent a note very soon thereafter asking if it could go home early and re-commence its deliberations the following week. The deliberations continued over the next two weeks. The jury returned with a verdict of guilty (to the charge on the indictment) in respect of both applicants at 12.49pm on Thursday 22 August 2019.
7. On 10 July 2019, Judge Hock imposed the following sentences: 1. Mr Papanikolaou - a sentence of three years with a non-parole period of one year and nine months. 2. Mr Tomaras - a sentence of three years and six months with a non-parole period of two years.

The appeal

1. There is no application by either applicant for leave to appeal against the sentences imposed.
2. Notices of appeal and applications for leave to appeal against the convictions were filed on 27 August 2020. The grounds of appeal raised in the notices were in identical terms and, in each case, signed by Mr Tzovaras: "1. The verdict of the jury was unreasonable and could not be supported on the evidence. 2. The Crown failed to prove the cause of the fire. 3. The hypothesis advanced by the appellant, namely that the fire may have been caused by an electrical fault such as arc tracking, was not excluded, and that therefore that was a reasonable doubt that the fire was accidental. 4. The failure of the fire investigators to investigate and, therefore, to exclude the possibility that the fire may have been caused by an electrical fault such as arc tracking gave rise to a reasonable doubt as to whether the fire had been lit deliberately or whether the cause of the fire was accidental. 5. There was no direct evidence, or evidence from which it could be inferred the existence, of an agreement between Mr Hu and the Accused, or either of them, pursuant to which they agreed to burn down the warehouse for $30,000. 6. It was implausible that the Accused or either of them lit the fire for an arson fee of $30,000 to be shared between them, in circumstances where at the time of the fire Mr Tomaras was a successful licensed real estate agent as evidenced by the following: (a) he had assisted Mr Hu to project manage and obtain for him or companies under his control, approvals to Development Applications for properties that the accused then on-sold for Mr Hu or Mr Hu's companies for millions of dollars more than they had been purchased for; (b) he had acted as an agent for companies under the control of Mr Hu, for the sale and purchase of properties for prices in amount of several million dollars, in respect of which he derived significant fees; (c) he had been engaged in other business activities with Mr Hu from which he derived significant gains; and (d) he was owed by Mr Hu $180,000 of outstanding fees. 7. It was improbable that the Accused or either of them deliberately lit the fire for a financial gain on the basis of the following facts and circumstances: (a) the accused, who was 48 years of age as at the date of the fire, did not have any criminal record in Australia where he lived all his life; (b) both Accused had left the warehouse 20 to 30 minutes prior to the fire starting; (c) the inspection of the fire scene by a fire investigator with dog (sic) trained in the detection of accelerants, did not reveal the existence of any accelerant; (d) none of the 5 fire investigators determined the Point of Origin or cause of the fire, concluding therefore that the cause of the cause (sic) of the fire was undetermined; (e) the electrical system of the warehouse was not examined by any of the fire investigators, with the result that the Crown did not exclude the possibility that the cause of the fire was accidental; (f) the fire occurred in broad daylight at around 11:22 am, with evidence adduced by a Crown witness with 30 years in the insurance industry that most fires occur at night, and that he had never heard of a proven deliberate fire having occurred during the day; (g) the warehouse was located near the Sydney airport where at the time of the fire there was a high level of motor traffic; (h) the warehouse was located at a site that was in full view of occupants of multistorey residential buildings, commercial buildings and various businesses, including shipping agents, airport staff carparks, a large car wash and hotels. 8. The primary judge erred in failing to direct the jury that if they were satisfied that the evidence adduced by the Crown did not exclude the hypothesis advanced by the Appellant, namely that the fire may have been caused by an electrical fault such as arc tracking, they should find the Accused not guilty. 9. The primary judge erred in failing to direct the jury that the failure of the Crown to call Mr Hu to give evidence gave rise to an inference adverse to the Crown's case, namely an inference that if Mr Hu had been called to give evidence, his evidence would have been adverse to the Crown's case."

Ground 8 (Mr Papanikolaou only): The primary judge erred in failing to direct the jury that if they were satisfied that the evidence adduced by the Crown did not exclude the hypothesis advanced by the Appellant, namely that the fire may have been caused by an electrical fault such as arc tracking, they should find the Accused not guilty.

1. No complaint was made at the trial that the directions on circumstantial evidence were inadequate or should specify a precise "hypothesis" along the lines of that contemplated by this ground of appeal. Leave is required pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
2. I would not grant leave because there is no substance to the complaint underlying this ground of appeal. One of the central issues at the trial was whether the prosecution had proved beyond reasonable doubt that the fire was deliberately lit. One alternative inference was that the fire was the result of an accident caused by electrical arcing or otherwise. Mr Tomaras also called evidence from a Mr Chan who said that there was a broken window, giving rise to the possibility of foul play by somebody who, unlike the applicants, did not have access to the premises.
3. The trial Judge directed the jury correctly as to the process of circumstantial reasoning in a criminal case. She told the jury that it could only convict the particular accused man if "the only conclusion that can be drawn from [the] facts is that he is guilty". Later in the summing up, this direction was reiterated in the following terms: "I repeat before you can convict either accused you must be satisfied beyond reasonable doubt not only that the conclusion that he intentionally damaged the property by fire as part of a joint criminal enterprise, part of an agreement, can reasonably be drawn from the facts, but that it is the only reasonable conclusion that can be drawn." [5]
4. Her Honour then said: "… if there is another reasonable explanation or conclusion available on the facts, which is inconsistent with the accused's guilt, it is your duty to find him not guilty. Both accused's legal representatives argued there is another reasonable conclusion which is inconsistent with their clients guilt, that is, that he did not have any involvement in respect of starting the fire and did not agree to damage the property by fire; that as we know the cause of the fire remains undetermined, and that the other circumstances on which the Crown relies would not satisfy you beyond reasonable doubt of either accused's guilt." [6] (Emphasis added.)

Ground 9: The primary judge erred in failing to direct the jury that the failure of the Crown to call Mr Hu to give evidence gave rise to an inference adverse to the Crown's case, namely an inference that if Mr Hu had been called to give evidence, his evidence would have been adverse to the Crown's case

1. The written submissions concerning this ground of appeal were pithy and in the following terms: "52. In Mahmood v Western Australia (2008) 232 CLR 397 at [27] the High Court (Gleeson CJ, Gummow, Kirby and Kiefel JJ) held that in a criminal trial: ' ... where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused.' 53. The Crown failed to call Mr Hu, who clearly was a material witness, being the controller of the company that owned the warehouse, and held a policy of insurance over the warehouse. The Crown's decision not to call Mr Hu was stated to be on the basis of an assertion that Mr Hu would be an unreliable witness, which was not supported by any evidence. 54. In the circumstances, the primary Judge ought to have given an appropriate direction to the jury about the Prosecutor having not called Mr Hu, who was a material witness. The primary judge ought to have reminded the jury that the Crown bears the onus of proving the guilt of the Accused beyond reasonable doubt. Then, the primary Judge ought to have directed the jury that they were entitled to take into account the fact that there the Crown did not adduce evidence from Mr Hu when they decide whether or not there is any doubt about the Accused's guilt, and that it would be open to the jury to entertain a reasonable doubt about the guilt of the Accused. 55. It is submitted that the primary Judge's failure to give the jury such an appropriate direction in respect of the Crown not calling Mr Hu was erroneous, and constituted a miscarriage of justice. 56. Further, the Crown's failure to call Mr Hu itself constituted a miscarriage of justice."
2. The ground as formulated suggested that a Jones v Dunkel [7] direction should have been provided. It seemed that this submission was not pressed and, if it was, it would be contrary to authority: see, for example, RPS v The Queen (2000) 1999 CLR 620; [2000] HCA 3 at [29] ('RPS'). In RPS, the High Court contrasted the situation that may arise in a civil case with the position of an accused person and the prosecutor in a criminal trial: "26. In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that: 'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.' 27. By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' (Emphasis added [by the High Court].) 28. In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations. 29. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused." (Footnotes and citations omitted; emphasis added.)

Unreasonable verdict grounds

1. The remaining grounds of appeal amount to a contention that the verdict is unreasonable or unable to be supported having regard to the evidence. The first ground is cast in those general terms and approximate the terms of s 6 of the Criminal Appeal Act 1912 (NSW). The remaining grounds, in various ways, contend that the prosecution failed to prove particular aspects of its case, that the evidence was deficient in certain respects, or that the jury ought to have entertained a reasonable doubt as to particular issues such as the financial motive of the accused or whether an accidental fire was excluded on the evidence. As it was put in the applicants' written submission: "[G]rounds of appeal 2 to 7 are in effect particulars to ground of appeal 1, that the verdict of the jury was unreasonable and could not be supported on the evidence."

Legal principles

1. The principles to be applied in determining this ground of appeal are well established: see, for example, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Hawi v R [2014] NSWCCA 83 at [307]-[304]; (2014) 244 A Crim R 169, Dickson v R (2017) 94 NSWLR 47; [2017] NSWCCA 78 at [84] - [86], Koloamatangi v R [2020] NSWCCA 52 at [346]-[347]; (2020) 282 A Crim R 160; Popovic v R [2016] NSWCCA 202 at [274]-[280].
2. The Court must conduct an independent review of the whole of the evidence in each case to determine whether the jury ought to have entertained a reasonable doubt as to the guilt of the applicant. Generally, a doubt experienced by an appellate Court is a doubt that the jury should have experienced, unless the jury's advantage in seeing the witnesses give evidence is capable of resolving that doubt. This is less likely to be the situation in a circumstantial case. The enquiry proceeds on the basis that it is the jury, not the appellate court, that is the constitutional arbiter of whether the prosecution has established the accused person's guilt beyond reasonable doubt. The advantages enjoyed by a jury go beyond the fact that it was present at the trial and includes the requirement for unanimity and availability of collective and robust debate within the jury room. However, if on the whole of the evidence the appellate court has a doubt about the guilt of an accused, or is left with a sense that an innocent person may have been convicted, it must intervene to quash the conviction. These principles are well known and explained in greater detail in a number of cases resolved in the High Court, some of which are referred to in the preceding paragraph.
3. Because the case against the applicants was largely a circumstantial one, the correct process of reasoning on appeal is the one described in Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 at 503 by Mason CJ, Dawson and Toohey JJ: "With respect, Young C.J. was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon C.J. observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance. The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses: See Chidiac v. The Queen (1991) 171 CLR, at pp 443-444, 453, 462; Carr v. The Queen [1988] HCA 47; (1988) 165 CLR 314, at p 331. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses: See Chidiac v. The Queen (1991) 171 CLR, at p 452."

Expert evidence

1. The applicants are correct in their submission that the scientific and expert evidence was unable, by itself, to exclude the possibility of an accidental fire at the premises.
2. Several expert witnesses were called in the prosecution case. The witnesses were of varying degrees of expertise and experience but each was qualified to provide an expert opinion concerning various aspects of the fire and its cause. Some of the experts relied on photographs of the scene, rather than a physical inspection and each had slightly different sources of information. The experts provided a generally consistent body of opinion evidence but there were conflicting opinions on several topics. These included the origin of the fire, the source of ignition and whether the fire may have been caused by an electrical fault of some kind or another.
3. The first expert witness was Wayne Schweickle. He was a fire investigator employed by the NSW Fire and Rescue Service. He attended the premises when the fire was yet to be extinguished. He took a number of photographs that were tendered in evidence and provided various opinions as to the possible and likely areas and points of origin of the fire. This was based on the appearance of the areas burned and where the appearance suggested the fire was at its hottest. In cross-examination he refused to accept the possibility that the fire was caused by "arcing" (which counsel said was the same as "sparking" or "a short") whereby sparks emanate from a power source and cause surrounding items to catch fire. [22] Mr Schweickle said he had never seen that occur. [23] He was taken to an image of a power point and surrounding electrical items (a fridge and a microwave) and agreed the power point appeared to have melted. However, he maintained that this was not the point of origin of the fire because he would "expect to see a very different burn pattern on the wall" and "greater damage to timber shelf above it". [24] Mr Schweickle's experience was relatively limited and his evidence on the arcing issue was undermined to a significant degree by the evidence of the next two witnesses called by the prosecution.
4. Paul Radford was a senior constable of police who had various qualifications as a forensic investigator and provided similar opinions and hypotheses as to the origin of the fire and its cause. One possibility was that the fire was deliberately lit. In cross-examination, he explained the process of electrical arcing and agreed it was a possible cause of the fire: "Q. Without going through a textbook that I have read and considered, arc tracking occurs in this way; it's a situation where - and of course I will ask you to verify what I'm saying step by step and correct me if what I'm putting is incorrect. A. Certainly. Q. From your understanding. It occurs in this way; that you have the same kind of conductors that we were addressing a moment ago, carrying electricity currents? A. Yes. Q. There may be a cable connecting an appliance to a GPO? A. Yes. Q. Or it may be simply the cabling within a building? A. Can be. Q. It comes from the main distributor of electricity and distributes it throughout the building? A. Yes. Q. Which cables of course are invariably, not always but invariably hidden behind the wall? A. Yes. Q. Some of them might be exposed? A. True. Q. Those conductors of electricity are again travelling in pairs, typically but not always. In the olden days there were even aluminium conductors but - A. There were. Q. --typically, they are copper conductors because they are better conductors? A. Yes. Q. They are also covered by insulators? A. Yes. Q. Typically made of a durable plastic material? A. Yes. Q. In that situation, in the situation where we have those conductors of electricity throughout the electrical system in a building, there might also be situations where, occurrences where the current that is being conducted by the conductors is not even, is not equal. A. Yes. Q. There might be a difference. When that occurs, there is a chemical process. There is heat that is generated? A. Yes. Q. And assume that that heat is not to the level where the two wires join and melt and cause arcs. I'm asking to make the assumption. A. Okay. Q. But there is heat nonetheless that is generated. That heat causes carbon to develop. A. Yes. Q. That carbon develops from the plastic substance? A. Correct. Q. That's an ongoing process? A. Yes. Q. If the degree of that heat and the generation of carbon is intense, there may be a fire that ignites? A. Could be, yes. Q. It might ignite within an hour of that heat generation, within half an hour of that heat generation even, correct? A. True. Q. But in your experience and is this your experience; that you've come across, you witness in your professional investigations, that process occurring and not in such an intense way that fire is caused after half an hour but it took years for that accumulation of carbon - A. Yes, there's a number of studies - Q. --to be generated? A. --that suggest that. Q. In fact, even in some cases decades? A. Yes. Q. But at some point of time, the cumulative generation of heat and carbon generation at some point of time results in an ignition of fire? A. Yes. Q. That can be at any time of the day? A. Yes. Q. Any time of the year, at any time of any period? A. Yes. Q. This is particularly common is it not, where the electrical system is an old one? A. Yes. Q. By that I mean that is an electrical system of a building that was erected and the electrical system was installed decades ago? A. Yes. Q. Such as the building, the subject of these proceedings, the warehouse? A. Yes. Q. This is another hypothesis is it not, that that process might have occurred somewhere within the electrical system in this building, in this warehouse? A. Yes. Q. Which got to the stage where the heat level, the carbon level reached an ignition point, ignited and caused the fire? A. Yes. Q. To occur. A. Of course, it is. Q. And which then caused the fire to destroy the entire property? A. Correct. Q. This is not a hypothesis or was this a hypothesis - TZOVARAS: I withdraw the question your Honour. Q. Was this a hypothesis that you considered during your investigation? A. Yes, it's always a hypothesis that electrical fire could have occurred. Q. This hypothesis of the cause of a fire was plausible wasn't it? A. It's possible yes. Plausible, unable to test. Q. Given the age of the building, given the devastating destruction of property and by that I mean the whole property, right through - A. Yes. Q. --it is plausible is it not that an arc tracking occurred at one spot within the building, within the electrical system? A. Yes. It can't be discounted. Q. And it is plausible is it not, that that occurrence caused other arc tracking within the system? A. Yes. Q. In fact, multiple arc trackings? A. It's unusual but it can happen. Q. That would explain would it not the devastation of the building right through, throughout? A. It is another option. Q. You have not collected any samples, and maybe there were no samples to collect. A. There were no samples. Q. In order for you to brief an electrical engineer in this case, Mr Gardner? A. No. Q. This was a sixth hypothesis I think, is it not? A. Yes. Q. Without going through each of these hypotheses - TZOVARAS: I withdraw that your Honour. Q. You gave evidence earlier you did not identify this hypothesis that we've identified in the course of you giving evidence. You did not identify this hypothesis in your statement did you? A. No. Q. But in fairness to you, you did say you made a mental notion of these hypotheses? A. Yes. Q. But in order to properly go through the scientific method of negating each potential each hypothesis that you develop and in order to do that systematically you really need to write it down and go, all right, what is it that doesn't add up with this hypothesis? A. Not necessarily. A lot of the time you can do it simply by visual clues. Q. So in some cases you can do it through a visual assessment? A. Yes. Q. But in the case of the last hypothesis that we've considered together, that is the electrical fire cause hypothesis and in particular through arc tracking, you really needed to sit down and make a note of that, tick off things and in fact pass it onto an expert in the field of electrical fires to address it? A. Yes. Q. But you didn't do that? A. No." [25]

Conclusion as to expert evidence

1. The foregoing analysis represents no more than a scant overview of the expert and forensic evidence called at the trial. I have not summarised the physical and photographic evidence that formed an important part of the material considered by the jury. Nor have I described the information upon which each expert based their opinions or the source of that information. I have considered all of that evidence.
2. This brief review of the expert evidence is enough to show that the applicants' submission concerning the expert evidence is fundamentally sound, as far as it goes. That is, the expert and forensic evidence was not sufficient, considered in isolation, to establish beyond reasonable doubt that the fire was deliberately lit. Put another way, this part of the prosecution brief could not exclude the possibility that the fire resulted from an electrical fault or accident.
3. The only witness who was prepared to rule out the possibility that an electrical fault (whether it be arcing or otherwise) caused the fire was Mr Schweikle. The other experts tended to accept that it was possible that arcing occurred although not all of them accepted the possibility that arcing was the cause of the fire. There was no rational basis upon which the jury could have accepted Mr Schweikle's evidence over the evidence of Mr Radford, Mr Etienne, Mr Gardner and Ms Jones: cf R v Manley (Court of Criminal Appeal (NSW), 15 December 1994, unrep) and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 558 - 559; [1984] HCA 7.
4. The expert witnesses, considered as a whole, favoured the hypothesis that the fire was deliberately lit. The jury may have formed the view, as I have, that the evidence suggested that it was much more likely than not that the fire was deliberately lit and not the result of an accident or electrical fault. However, the question was not whether one or other inference was preferable, or whether the inferences were "equally open": see Knight extracted at [47] above. The question was whether the jury could rationally reject the inference that the fire was caused by an accident or by an electrical fault or arcing. On the expert evidence alone, it could not rationally have done so.
5. However, the prosecution case was not solely reliant on the expert evidence to establish that the fire was deliberately lit. On the contrary, it relied on a substantial body of evidence that implicated each of the applicants in the deliberate setting of the fire. It is only once that body of evidence, and all of the evidence admissible against the individual applicants, is considered as a whole, that the ultimate question, discussed and explained in cases such as Knight, Baden-Clay and Coughlan, can be addressed.

Opportunity, the toaster, movements around the time of the fire, interviews with investigators and a lie

1. There was no dispute that the applicants were present at the premises shortly before it was seen to be on fire. Mr Tomaras had keys to the premises and worked there. There was evidence (from a neighbour, Mr Barkho) that suggested Mr Panikolaou may have lived there or slept there at times. [34]
2. The applicants' case, speaking generally and based on what they told investigators, was that they were at the premises on the morning of the fire to collect a pallet that was being cleared through customs. They told Ms Jones (and others) that Mr Papanikolaou was cooking toast with cheese in a toaster in the kitchen area but that Mr Tomaras decided they should go and get food elsewhere. The suggestion was that the toaster was left on and this may have caused the fire. The applicants left the premises at around 10.30am or 11.00 am. They received a 'phone call from a neighbour telling them the premises were on fire a short time later. The first emergency call was logged at around 11.21am. [35] The applicants returned to the premises where they spoke to fire fighters and a police officer.
3. The two men spoke to a number of people in the hours, days and months after the fire and before they were charged. This included conversations with police and insurance investigators which were recorded by one means or another. A deal of this material was tendered before the jury.
4. On the day of the fire the applicants approached police at the scene and told them they were in the warehouse shortly before the fire. [36] They said that "he placed a piece of cheese on the bread and put it in the toaster" and the toaster was left on when they left the premises. [37] The applicants were co-operative with the police and voluntarily attended Mascot Police Station. [38]
5. Thereafter, the applicants spoke to a number of insurance investigators and police officers. For example:

• Mr Papanikolaou made a signed statement to police on 29 December 2015 with the aid of an interpreter (Ex 16).
• Mr Tomaras made a signed statement to police on the same date (Ex 76).
• Mr Tomaras offered or consented to undergoing a forensic procedure to test his hands for the presence of accelerants. [39]

Association with Mr Hu, the insurance claim and a $30,000 invoice for project management

1. There was no dispute that Mr Tomaras worked for Mr Hu in some capacity. His precise role was described in various ways but there was no doubt that he had some kind of subordinate role in Mr Hu's property business. It was also agreed that Mr Papanikolaou provided services, labouring and the like, to the business being conducted out of the premises at Sarah Street. Mr Tomaras had keys to the premises. He was known by some of the locals who gave evidence at the trial or provided information to the police, at least by sight or by his first name (Con).
2. Mr Hu's company had insurance over the building and its contents with a company called Resilium Insurance Broking Pty Ltd ('Resilium'). A representative of Resilium gave evidence and the insurance policies were tendered. [47] A claim for the damage caused by the fire was lodged in January 2016 and the contact name for the claim was Con Tomaras. [48]
3. Keith Goss worked in the insurance industry and, at the time of the fire, was the CEO of RSL Cabs Mutual ('RSL'), a taxi company that occupied the premises at 14 Sarah Street, Mascot. He said when he commenced work at RSL "it was very obvious that the building next door had been substantially damaged by fire". [49] He wanted to meet the occupants and owners of the building. It was in that context that he met Con Tomaras in January 2016. He asked for an introduction to the owner of the building. He met Mr Hu in around March 2016 and discussed the possibility of Mr Hu putting in a bid for the building at 14 Sarah Street. Mr Hu expressed some interest.
4. Mr Goss asked Mr Hu about the progress of the insurance claim and offered to assist Mr Hu in expediting the claim. Mr Hu appointed Mr Goss as his agent to liaise with the insurer. Having made contact with the insurance investigators, Mr Goss contacted Mr Tomaras. A number of telephone calls on 10, 14, 15 and 18 June 2016 were intercepted by police and tendered at the trial in the case of both applicants. [50] There was discussion about the need for the applicants to speak to the insurers. Mr Tomaras said that they had co-operated with both police and the insurers and had spent many hours doing so. Mr Tomaras said he had fallen out with Mr Hu over various matters, mostly to do with money. He said Mr Hu owed him and Mr Papanikolaou money for jobs they had done for him.

Calling in the debt and some of the relevant telephone intercepts

1. Within days of the invoice being provided, on 17 June 2016, a man called George Karris called Mr Hu and said he was speaking on behalf of "Angelo". [56] He said "Angelo [is] asking for some money". Mr Karris then said that "Angelo" had just had a call from the insurance company ("John Coot") and he is: "[J]ust calling because he cannot speak to you. Now either you co-operate with him or he co-operates with the insurance."
2. Mr Karris suggested Mr Hu meet with Angelo.
3. On 18 June 2016 there was a conversation between Mr Hu, Mr Tomaras and Mr Papanikolaou. [57] Mr Tomaras translated for Mr Papanikolaou. There was discussion about Mr Hu and Mr Papanikolaou having a face to face meeting or speaking with each other in person.
4. Around half an hour later Mr Tomaras spoke with a Paul Ekes about a visit to Mr Hu's home in an attempt to meet face to face with Mr Hu. [58] After a further hour, Mr Ekes spoke with Mr Hu with Mr Papanikolaou present. [59] The recording device picked up Mr Papanikolaou giving Mr Ekes instructions. Mr Hu asked "What for I owe him money?" and Mr Ekes replied, "He said he did some work for you at Mascot and um he didn't get paid for it." Mr Hu denied making a payment of $5,000 and said that "he all work to Con and… Con give the money".
5. Towards the end of the call, Mr Ekes said: "Better to see you face to face, I don't want to talk on the phone John. I don't think it's a good idea to talk on the phone 'cause it could jeopardise your problem."
6. A little later on 18 June 2016, Mr Tomaras called Mr Hu and discussed the issue of the money said to be owed by Mr Hu to Mr Papanikolaou. Part of the conversation was as follows: "CT: … Yeah. John, John. I'm just letting you know, all right. JH: Yeah. CT: Just, just very simple. JH: Yeah. CT: There is a certain job, yeah. The job's … JH: Yeah. CT: … done yes or no? Done? JH: Yeah, yeah. CT: Yeah, all right then how, how's the job, how's the job was going to be paid. Remember the job was going to be paid after Christmas when you come back. [60] Now you come back, you said 'I have problem'. Okay, you had problems. You gave five thousand dollars to Angeols, okay? Now …" [61]
7. Mr Hu said he didn't understand and denied paying the five thousand dollars. There was talk of what was "fair" and mention of "twenty thousand dollars". Mr Tomaras was insisting on a face to face meeting but Mr Hu was resisting this. Mr Tomaras said: "…when you want to do a job, you want to speak face to face, but when you don't want to pay, you don't want to see face to face huh? Is that correct? Just tell me? … You know what I'm, John, you know what I'm talking about. You know what I'm talking about. Don't, don't when, when you want to do a job, you sit face to face, yes or no? Yes. … Oh you don't. Okay. Okay. You want to play like this, okay, bye, bye." [62]

An alleged admission to George Karris

1. George Karris gave evidence of his association with Mr Papanikolaou. He explained the context in which he made the telephone calls to Mr Hu in June 2016. He then gave the following evidence, admitted only in the case of Mr Papanikolaou: [71] "Q. Now the call that we just heard, why did you make that call? A. I made that call because Angelo asked me to do that call. He does not know how to read or speak English so he made me do that call and I was in a position to do that call because I was frustrated. I didn't know what to do. Q. What did he tell you before you made that call? A. That Angelo, that this person I made the call owed Angelo some money. […] Q. So owed Mr Papanikolaou money? A. He said that he, he started a fire at his warehouse. Q. Did Mr Papanikolaou tell you anything else about that fire at the warehouse? A. If he tell me anything else? Q. Yes? A. He told me about the procedures and how the fire was done. Q. What did he tell you? A. That he'd put in a toaster a bread, cheese and diesel and he walked out of the factory."
2. This evidence, if accepted, was devastating. It constituted a direct admission of the offence with which Mr Papanikolaou was charged.
3. Mr Karris was cross-examined. He was asked whether he was a "law abiding citizen" and he said that he was. [72] He was then confronted with the fact that he had a criminal record for drink driving (high range PCA) and a common assault. [73] It was then suggested that he had lied to the jury about being a law abiding citizen. It was put that the assault involved throwing a chair at Mr Papanikolaou but the chair hit a woman standing nearby. [74] He said he had not lied and considered himself to be law abiding. It was put to him that he understated the length of time Mr Papanikolaou stayed at his house but he maintained that it was only for a "couple of months". [75]
4. As to the critical evidence of the admission, Mr Karris agreed that the applicant told him that he had done a variety of jobs for Mr Hu. It was put to the witness that he made up the evidence about Mr Papanikolaou telling him that he set fire to the warehouse and the procedure involving the lighting of the fire. Mr Karris said the evidence was true, not fabricated, and "No, Your Honour. I did not make it up." [76]
5. It was then put to him that he suspected the applicant was "having a relationship with your wife" to which he replied initially, "Oh my God" and then denied the proposition. [77] It was suggested he wanted his statement to police to be confidential because he knew it contained lies and the witness denied that suggestion. Mr Karris denied that he was motivated by a desire to "retaliate further against Mr Papanikolaou". [78]

Was the verdict unreasonable or unable to be supported?

1. Having considered the whole of the evidence adduced at the trial, I am unable to accept the applicants' submission that the jury ought to have entertained a reasonable doubt or that there was an unresolved doubt that the fire was deliberately lit. The prosecution case against Mr Tomaras was a very strong one. Even taking into account the dangers of evidence of unrecorded oral admissions, the evidence of Mr Karris meant that the case against Mr Papanikolaou was bordering on overwhelming.
2. The applicants placed considerable reliance on the High Court's decision in Coughlan v The Queen, [80] another case involving a suspicious fire where a jury convicted on the basis of circumstantial evidence. The High Court held that the Queensland Court of Appeal erred in failing to quash the conviction. There are some similarities between the cases. In both cases, the expert evidence was inconclusive, and the explanations provided by the accused, who clearly had the opportunity to commit the offence, was not convincing. However, appeals based on the contention that a verdict is unreasonable or unable to be supported are, by their nature, fact specific. They are to be resolved based on their individual facts and circumstances and on the particular evidence adduced at the trial.
3. In Coughlan v The Queen, [81] the High Court was troubled by the absence of any clear financial motive of the appellant to commit the offence. In the present case, the prosecution called a body of evidence to establish the connection between the applicant and the owner of the building (Mr Hu) who had insurance over the building and made a claim shortly after the fire. The evidence demonstrated that the applicants, between them and together and using intermediaries, made repeated attempts to obtain money from Mr Hu. A very strong inference was that the debt they were chasing concerned the promised payment for their role in setting the fire. The tone and content of the conversations, the reference to a "certain job", the alleged promise of payment after Christmas, the desire not to talk on the telephone, Mr Hu's expressed lack of understanding of what anybody was talking about; all of these matters, and more, were to be considered in the context of the whole of the evidence and the surrounding events.
4. The jury was entitled to take into account the lie that each of the accused told as to meeting in Panania that morning. For the purpose of making an independent assessment of the evidence, I am satisfied that this was a lie and one told out of a consciousness of guilt.

Conclusion and orders

1. I would make the following orders in each case: 1. Leave to appeal on ground 8 is refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). 2. Otherwise, and where necessary, leave to appeal against conviction is granted. 3. The appeal is dismissed.
2. HIDDEN AJ: I agree with Hamill J.

Endnotes

1. Criminal Appeal Act 1912 (NSW), s 5(1)(b).
2. Tcpt, 23 April 2021, p 3.
3. Tcpt, 23 April 2021, p 3.
4. Tcpt, 23 April 2021, p 3.
5. Tcpt, 9 August 2019, p 62.
6. Tcpt, 9 August 2019 pp 62-63.
7. 101 CLR 298; [1959] HCA 8.
8. Jones v Dunkel at [29].
9. Mahmood at [27].
10. Tcpt, 8 August 2019 p 1799.44.
11. Tcpt, 7 June 2019, pp 142-144.
12. Tcpt, 23 April 2021, p 22.
13. Tcpt, 7 June 2019, p 142.
14. Tcpt, 23 July 2019, p 1380.
15. Tcpt, 6 August 2019, p 1706.
16. Tcpt, 6 August 2019, p 1688.
17. Tcpt, 23 April 2021, p 22.11.
18. Referred to above at [34]; Tcpt, 23 July 2019, p 1380.
19. Tcpt, 8 August 2019, p 1799.41.
20. Tcpt, 8 August 2019, pp 1798-1800.
21. Summing Up, 8 August 2018, p 11.
22. Tcpt, 19 June 2019, pp 399 - 400.
23. Tcpt, 19 June 2019, p 400.
24. Tcpt, 19 June 2019, p 399.
25. Tcpt, 24 June 2019, pp 628 - 631.
26. Tcpt, 1 June 2019, p 796.
27. Tcpt, 1 June 2019, p 792.
28. Tcpt, 1 June 2019, p 793.
29. Tcpt, 1 June 2019, p 801.
30. Tcpt, 1 June 2019, p 802.
31. Tcpt, 2 July 2019, p 818.
32. Tcpt, 2 July 2019, p 819.
33. Tcpt, 24 June 2019, p 592; Tcpt, 1 July 2019, p 782.
34. Tcpt, 17 June 2019, p 251.
35. Ex 77.
36. Tcpt, 11 July 2019, p 1113.
37. Tcpt, 18 June 2019, p 330; Tcpt, 17 June 2019, p 254.
38. Tcpt, 18 June 2019, p 331.
39. Tcpt, 22 July 2019, p 1358.
40. Summing up, pp 32-39.
41. See, for example, Tcpt, 23 July 2019, pp 1399-1400.
42. Tcpt, 25 July 2019, p 1534.
43. Ex 76, para 10.
44. Ex 16, para 8 - 9.
45. Ex 70, 71 and 72.
46. Tcpt, 17 June 2019, pp 251-253.
47. Ex 50, 51.
48. Ex 60, 61, 62 and 63.

Amendments 30 June 2021 - Date of decision below amended. 16 August 2021 - At [4] - Typographical error amended. The year changed from "2016" to "2015". At [7] - Typographical error amended. The year changed from "2016" to "2015". 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: 16 August 2021