R v DM [2014] ACTSC 377

CRIMINAL LAW - Evidence - discretion to exclude evidence obtained improperly - forensic officer collected evidence from scene of fire not considered suspicious - no search warrant sought before suspicions arose - police investigation subsequently begun - powers of fire investigator to remove items from scene - no impropriety established - evidence admitted.

Emergencies Act 2004 (ACT), ss 101(e), 101(g), 112(1)(a), 112(1)(c)

Evidence Act 2011 (ACT), ss 138, 138(1)

Legal Aid ACT (Accused)

1. DM has been charged with one count of arson and two related counts of, in general terms, insurance fraud. Those charges arise out of a fire at the ACT Housing property rented by DM, which I will refer to as "the house", and a subsequent claim made by her under a contents insurance policy.

2. Central to the case against DM are the following pieces of evidence (referred to as the seized items):

(a) three bottles that had contained methylated spirits, which were found effectively empty in her recycling bin on the afternoon of the fire; and

(b) an apparently new tarpaulin also found on the afternoon of the fire in a shed in the backyard of the house (the tarpaulin was covering a pile of items said to be of personal or sentimental value).

3. Those items were seized by an Australian Federal Police (AFP) Forensics Officer who went to the premises on the afternoon of the fire. The bottles and a small amount of liquid found in two of them were subjected to forensic testing, which produced results linking DM with those items.

(a) the seized items;

(b) forensic evidence obtained from those items; and

(c) evidence of those parts of the taped record of interview with DM, and the taped record of the execution of the search warrant, that related to those items or to the forensic evidence.

5. The application is based on s 138 of the Evidence Act 2011 (ACT). Counsel for DM says that the evidence was obtained improperly and should be excluded in the exercise of the discretion provided for under s 138(1).

6. The claim that the evidence was obtained improperly is based on events at the house after the fire was reported. It is necessary to outline those events, to the extent that they can be extracted from the evidence put before me on the application. That evidence indicates the following chronology for events at DM's house:

(a) A fire at the house was notified to the ACT Fire Brigade at 12.39 pm on 16 July 2012 and to ACT Police Operations at some point before 12.45 pm that day. At about 12.55 pm First Constable Treloar arrived at the house. Several ACT Fire Brigade vehicles and personnel were already present.

(b) At 1.39 pm the Fire Brigade incident log recorded a fire investigation activated by Commander Talbot. Commander Talbot gave evidence that the effect of this was to appoint Anthony Walker, who was the on-call investigator for that day, as the fire investigator.

(c) At about 1.50 pm Maria Amaro from ACT Housing arrived at the house.

(d) At about 3.10 pm the ACT Fire Brigade handed the scene of the fire over to ACT Housing, and Ms Amaro said that she would organise temporary fencing around the house. Commander Talbot put the time of this handover at about 4 pm.

(e) At about 4 pm fencing contractors arrived at the house and erected temporary fencing.

(f) Ms Ro-Anna Trebilcock gave evidence that at around 4 pm she and other AFP Forensics members arrived at the house. Constable Treloar put their arrival at about 4.10 pm.

(g) ACT Fire Brigade fire investigators arrived at about the same time. Ms Trebilcock had a conversation with Fire Investigator Anthony Walker and as a result of this conversation, examinations were conducted and a series of photographs were taken, after a decision was made to postpone the full examination of the scene, particularly indoors, until the following day, when the light would be better.

7. In the next period of less than an hour there were several relevant events:

(a) Fire investigators advised Constable Treloar that in the backyard, in a makeshift shed, there were various containers of household goods covered by a blue tarpaulin which appeared brand new.

(b) Ms Trebilcock, one of the AFP forensic members, opened the recycling bin near the front of the house. Constable Treloar puts this event at about 4.30 pm. Items of interest identified in the bin were three methylated spirits bottles, two containing a small amount of liquid.

(c) Ms Trebilcock removed the three methylated spirits bottles from the recycling bin. The liquid was decanted and collected.

(d) Property seizure records were created for the methylated spirits bottles and for the tarpaulin which had also been seized.

(e) At about 4.56 pm Constable Treloar decided the fire was suspicious and that ACT Police would take over the investigation. Constable Treloar left a voice-mail message for Ms Amaro from ACT Housing that ACT Police were taking over the matter.

(f) At about 5 pm Constable Treloar commenced a crime scene log.

8. At 5.08 pm the ACT Fire Brigade incident log recorded "incident closed". At 5.30 pm the ACT Fire Brigade incident log recorded "incident reopened". At 5.31 pm the ACT Fire Brigade incident log again recorded "incident closed" and at 6.20 pm the ACT Fire Brigade incident log again recorded "incident reopened".

9. Commander Talbot gave evidence that these records involved "a keystroke on a computer". I interpret this as intended to suggest that they do not necessarily reflect deliberate decisions by either him or other officers at the scene.

10. At 6.28 pm the Fire Brigade incident log recorded an email from Station Officer Paul Grech as follows:

At 1730 Julian Woods (after-hours contact for Spotless) was contacted. He was informed that the "Release of Premises" for 36 Mackay Crescent, Kambah, to Spotless was revoked. Findings of the fire investigator have raised some degree of suspicion. As per legislation, the scene is now under the control of their investigations. Julian gave an undertaking to pass the same on to Steve Lewis who signed the "Release of Premises" form.

11. The crime scene log (Ex 6) identified a number of people as present from 5 pm until specified later times. I interpret these entries to indicate not that those people arrived at 5 pm but that at 5 pm, when the log was begun, they were already present. Those people were:

(a) Constable Treloar and his partner, Constable McCarren; and

(b) three forensic officers, being Ms Trebilcock and Messrs Freeman and Roeterdink.

12. The next day, 17 July 2012, a search warrant was obtained for DM's premises. Although the supporting affidavit is not in evidence, it is apparent from the warrant issued that the seizure of the methylated spirits bottles was a factor in the exercise of obtaining the search warrant.

13. Commander Talbot gave evidence that on 16 July, in accordance with his powers under the Emergencies Act 2004 (ACT), he had appointed Anthony Walker, who was a duty investigator, or perhaps an on-call investigator, for that day as the fire investigator. On the following day, two other investigators were appointed.

14. Counsel for DM submitted that the relevant evidence was improperly obtained because it involved a trespass, and possibly a theft, by a forensics officer who had no authority to enter the premises or to remove bottles out of the recycling bin, or, presumably, to remove the tarpaulin. The submission appears to rest on the proposition that in the absence of formal authority, a forensics officer has no scope for conducting any investigative work and that accordingly any evidence becoming available as a result of the forensic officer's work is liable to be rejected.

15. Ms Trebilcock gave evidence that she had been initially invited to attend the fire by Fire Brigade officers in accordance with a collaborative agreement with the Fire Brigade under which forensics officers would be invited to attend non-suspicious fires for educative purposes. This agreement had been made in the context of circumstances in which forensics officers otherwise "only go to suspicious fires". Ms Trebilcock had received the invitation to the house, although it is not clear from whom, at a time when the fire was still regarded as non-suspicious, but by the time she arrived at around 4 pm, after finishing other jobs, the fire was beginning to be regarded as suspicious.

16. Ms Trebilcock could not recall whether it was a Fire Brigade member or an AFP officer who told her that the fire was now regarded as suspicious. After her arrival, Ms Trebilcock said, she had had several conversations with Anthony Walker. Ms Trebilcock was not able to give evidence of being directed by Anthony Walker to examine any part of the fire scene or to seize any items. However, she noted that although she was not a sworn AFP officer, the practice was for forensics officers to operate in conjunction with sworn AFP officers.

17. Ms Trebilcock did not claim to know what particular authority she had for removing the bottles or the tarpaulin. On the other hand, although she was not able to identify the specific authority under which she was acting, Ms Trebilcock said that she understood that forensics investigators had permission to search the premises and to remove relevant items.

18. Commander Talbot gave evidence that once the cause and point of origin of a fire are clear to Fire Brigade officers, there is no further investigation. However, Fire Brigade officers will keep investigating until they have an idea of how and where the fire started.

19. As already indicated at [7] to [9] above, there was no clear evidence before me about who had finally determined that the fire was "deemed" suspicious. Commander Talbot indicated that the normal practice in handing over suspicious fires to the AFP was that information would be collated from all involved and that all parties would discuss and agree whether there needed to be a handover. If a handover was decided on, a Release of Premises form would be completed.

20. Counsel for DM called for the Release of Premises documents relating to the original release of the premises to ACT Housing and the subsequent release to the AFP, but neither of those documents was produced.

21. In summary, then, the chain of events seems to have been as follows.

22. Some time after noon on 16 July 2012 a fire at DM's house was notified to the ACT Fire Brigade and shortly afterwards to the AFP. Some time after those notifications, but before about 4 pm, AFP forensics officers, including Ms Trebilcock, were invited to the scene of what was at that point regarded as a non-suspicious fire, the invitation being issued under an agreement between the Fire Brigade and the AFP aimed at expanding the experience of AFP forensics officers.

23. By the time Ms Trebilcock and her colleagues arrived at the scene of the fire at around 4 pm, suspicions about the fire were developing, although it seems that no formal determination that this was a suspicious fire was made until closer to 5 pm. Ms Trebilcock could not recall any specific directions from Mr Walker, the fire investigator, nor from Constable Treloar of the AFP, to investigate the premises generally, or the recycling bin or the property under the new tarpaulin in particular.

24. In general, then, the fire was initially under the control of the Fire Brigade, with a police presence from an early stage. AFP forensics officers were invited on to the scene of a non-suspicious fire, but arrived after suspicions had developed about the fire's cause. The discovery by the forensics officers of the methylated spirits bottles seems to have preceded the formal decision by AFP officers, and particularly Constable Treloar, to take over the investigation and to treat the premises as a crime scene.

25. Under the Emergencies Act, a fire investigator, in this case Mr Walker, has power to take onto premises any people, equipment or material the investigator reasonably needs (s 101(e)), and to require anyone at the premises to give the investigator reasonable assistance (s 101(g)). The investigator also has power to search land or premises where the fire happened (s 112(1)(a)), and to remove anything from the land or premises (s 112(1)(c)).

26. Accepting that no evidence has been given of any explicit directions being given to the forensics officers by Mr Walker (the fire investigator), the position was that during the period when a fire investigator had control of premises where there had been a fire, a forensics officer:

(a) whose normal role in relation to the fire brigade was to go to suspicious fires to conduct forensic investigations; and

(b) who had initially arrived at the fire scene in response to a Fire Brigade invitation that noone has suggested was improper; and

(c) after discussion with the fire investigator, who clearly had power to both authorise and require such work to be done;

discovered items possibly relevant to the cause of the fire, photographed them in situ and then seized them, apparently in accordance with usual AFP property seizure procedures.

27. It is true that the boundaries between Fire Brigade and police investigations of fires appear to be somewhat unclear, in practice if not in theory (as to which there was very little evidence). It must also be true that the shift from an assessment of a fire as non-suspicious to an assessment of it as suspicious will commonly result from very much the kind of forensic work done in this case, and that it would be a nonsense to say that forensics officers cannot be involved in fire investigations until the fire has been "deemed" suspicious and handed over to police. Nor, I suspect, would it make practical sense to require Fire Brigade or police investigators to give detailed express directions to forensics officers about how to do their work, as to which the forensics officers, not the investigators, are the experts.

28. I cannot see that the possibly inevitable fuzziness of those boundaries in the course of a real incident means that in the circumstances I have just described, a forensic officer's discovery and seizure of relevant evidence in the course of a Fire Brigade investigation can be said to be an impropriety.

29. Since I am not satisfied that any impropriety has been established, I do not need to consider whether the evidence should nevertheless be admitted in the exercise of the discretion conferred by s 138(1) of the Evidence Act. However, it is worth noting that, given the probative value of the evidence concerned, its importance in this case, and the seriousness of the offences charged, the desirability of admitting that evidence would have weighed heavily in the balancing act required by s 138(1) if an impropriety had been found.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.