R v DM [2016] ACTSC 179

452. Defence counsel says that O's evidence about moving items out of the house, and her explanation as described at [134] above for that process, "is significant as it explains why some newer items may have been in the shed ...". The claim that the items were moved outside because there wasn't enough room inside is also to be considered, along with DM's several explanations for the removal of the items, in assessing the significance of the presence of the items in the shed - but it does not eliminate the location of the items as an element in the circumstantial case.

453. Defence counsel said that no evidence was led to contradict DM's assertions that she had bought methylated spirits on Saturday or Sunday, that she used it for mopping the floors, and that she was cleaning to get ready for a house inspection. This is correct as far as it goes, but:

(a) there was also evidence that DM had bought two bottles of methylated spirits on the Sunday evening, around or after the time her children had returned home (see [468] below); and

(b) there was no evidence of any cleaning having been done after that, unless her comment quoted at [166] above meant that she had cleaned the TV on Sunday evening (see [469] and [470] below).

454. Defence counsel said that if she were guilty, DM would not have volunteered the report that when they left the house, O had thought she saw flames through the lounge room window. Instead, counsel said, she would have responded to any report given by O of this conversation by saying that O was mistaken. Certainly that would have been an available approach, but it might have carried more risks of raising suspicions than a truthful volunteering of information that was consistent with both a deliberate starting of the fire and an accidental but unexplained one.

455. Defence counsel also submitted, in relation to DM's behaviour after leaving the house, that "the unequivocal evidence is that she did not know her house was on fire". In my view, the evidence does not go beyond establishing that DM gave no indication that she did know her house was on fire. In particular, her deflections of her children's concerns about whether their house was on fire (at [97] to [99] above) might show a complete absence of knowledge that the house was on fire, coupled with a complete lack of curiosity about that possibility, but might equally show a wish not to discuss the possibility that the house was on fire.

456. Defence counsel submitted that DM's claim to have been unsure about whether her insurance policy had been renewed was corroborated by her friend Debbie's comment, reported by Mr Grech in his report,[92] that DM "was not sure if her insurance was paid up, but 'that's what she needs to find out'". Debbie's comment seems to be inadmissible hearsay, although counsel's reliance on it was not specifically objected to. Furthermore, since the information given by Debbie to Mr Grech in the immediate aftermath of the fire could only have come from DM, it does not provide any particular corroboration of DM's own claim to be uncertain about her insurance cover.

457. I am satisfied that DM and her daughters (the family):

(a) left the house before 12:39 pm when the fire was first reported; and

(b) left the house no more than about 10 minutes before 12.39 pm.

(a) O's evidence of how long the family waited at the bus stop;

(b) DM's initial report to Paul Grech that she had left at about "twenty to one";

(c) the evidence that the family boarded the bus at 12:51 pm, which is consistent with O's evidence that from the bus stop she could see a lot of smoke in the sky, and that she saw a fire engine go past;

(d) the fact that even a departure at 12.38 pm would have allowed 13 minutes before the family boarded the bus at 12.51 pm, which would have permitted a leisurely walk (even by the less direct route chosen) and up to 7 or 8 minutes to wait at the bus stop, discuss the possibility that the fire was at their house, and see either the fire engine that arrived at 12.44 pm or a slightly later one; a departure at 12:30 pm leaves 21 minutes to be accounted for by the walk to the bus stop and the wait at the bus stop (O's estimates of spending 5 minutes at the bus stop after a walk of 2 or 3 minutes were probably underestimates, but it seems unlikely given those estimates that either the walk or the wait struck her as unusually drawn out on the day of the fire).

459. Despite Mr Grech's second-hand hearsay evidence of O telling her mother she could smell something burning, I am satisfied that what O noticed, and commented on when she looked back at the house as they left, was flames in the lounge room. [see [82] to [89] above].

460. I am satisfied that both when O first looked back at the house and thought she saw flames, and later when she saw smoke from the direction of their house and then the fire engine, DM initially ignored O's concerns and then refused her requests to return to the house (at [83] to [89], [97] and [98]).

461. I am satisfied that when the family left the house, there were clothes drying on a rack in front of the gas heater, and that this was unusual, given the evidence that clothes were normally dried on the line or in the clothes dryer.

462. I am satisfied that in the days or weeks before the fire, DM moved a variety of goods of personal, spiritual or sentimental value out of her house and into the backyard, storing them either in the shed or on or near the clothesline.

463. The most significant item moved out of the house was in my view the container, described variously as DM's sewing box or an overnight bag, which contained her current medication and personal hygiene items such as a hairbrush and deodorant (at [122] above), and I note that DM had no sensible explanation for that item's presence in the shed (at [133] above).

464. Also significant in my mind were the fact that the curtains made by DM, and other soft furnishings, had been washed and hung out shortly before the fire in weather not apparently conducive to drying heavy furnishings ([146] to [148]) and the fact that dry laundry had been left outside despite DM's decision that day to dry further clothes inside in front of the heater.

465. As to when the items had been moved, I note that among the items in the shed were bills dated as recently as 29 June 2012 or with due dates in July 2012.[93] That is, at least some items (including items that were then current) must have been moved out as recently as two weeks before the fire. Furthermore, although there had been several days of rain shortly before the fire (at [147] above), and despite the open sides of the shed, the items and containers in the shed were dry.

466. As well, some of the significant items in the shed were covered by a tarpaulin that appeared to have been very recently unpacked (when found in the shed it retained the fold lines from its original packaged state: at [132] above). The location of the items concerned in front of other items in the shed suggested that they had been the items most recently put into the shed.

467. I note that O's statement that she had helped her mother move things into the shed because "there wasn't enough room" (at [134] above) does not explain:

(a) the asserted shortage of space (which is itself inconsistent with both Mr Scott's assessment of the house as "quite bare" and the photographs at C.9 and C.10); or

(b) the significance of some of the items that had been moved out, especially items that seemed likely to be in current use (eg DM's medication) or to require action in the short term (eg DM's recent bills).

468. I am satisfied that, on the weekend immediately before the fire:

(a) DM had bought at least three one-litre bottles of methylated spirits, and may have bought two others (at [171] and [173] above); and

(b) two of those bottles were bought on the Sunday evening (around 7.30 pm) (at [171] above).

(a) DM's children had not previously observed their mother using significant quantities of methylated spirits in cleaning (although she did use it for such things as cleaning computer and TV screens) (at [160] to [163] above);

(b) DM's son went to the house at about 6.30 pm on the Sunday, and was not aware of methylated spirits having been used, despite normally being sensitive to its use (at [161] above); and

(c) DM's daughter O arrived home about 7.30 pm on Sunday and noticed only the smell of cigarette smoke, but no smell of cleaning products.

470. That is, contrary to DM's claims during the execution of the search warrant and in her police interview, there was evidence suggesting that she had not used any significant quantity of methylated spirits during her weekend cleaning and, except for the comment mentioned at [166] above, there was no evidence from anyone (including DM) that DM had done any cleaning after buying the two bottles of methylated spirits on the Sunday evening.

471. I am satisfied that immediately before the fire, DM's financial position was not healthy, and that she had no realistic expectation of it improving (at [175] - [182] above). I am also satisfied that her financial management approach was not necessarily always sound, as indicated by the choices she made in dealing with the income that did come in; notably, she chose various kinds of apparently discretionary spending over dealing with the fines and other charges that had left her unlicensed and with an unregistered car, which in turn made it difficult (without breaking the law by driving her car) to undertake casual work that would have improved her financial position (at [210(b) and (p)] above).

472. I am satisfied that DM's son and husband both had significant debts, and that DM was aware of at least some of those.

473. I am also satisfied that DM had as recently as the previous year had difficulties with retaining her tenancy (at [69] above), that her house was about to be inspected on the day after the fire (at [72] above), and that there had previously been difficulties arising from the tiling she had undertaken in the house (at [69] above).

Intermediate findings of fact - the fire itself

474. The Crown's hypothesis was that the fire was started deliberately.

475. The claim that the fire was deliberately lit relied on several specific propositions. The Crown says that there is:

(a) evidence of the use of accelerants, being:

• (i) evidence that several Crown witnesses had detected the smell of methylated spirits in the fire debris, and testing results not inconsistent with the presence of petrol in one of the methylated spirits bottles found in the recycling bin and in three samples taken from the house after the fire (at [366] to [369]);
• (ii) the speed with which the fire took hold; and
• (iii) certain burn patterns seen in the house after the fire; and

(b) evidence of multiple seats of fire in the house, that evidence largely but not entirely consisting of burn patterns suggesting multiple floor-level fires.

476. Evidence of multiple seats of fire in itself would suggest human involvement in the start of the fire and, coupled with more specific evidence of the presence of accelerants, would provide strong support for the Crown hypothesis that the fire was started deliberately.

477. The defence pointed to various aspects of the expert evidence about the causes of fires, and the nature of this fire, to suggest that an hypothesis consistent with innocence was reasonably open on the evidence. Two versions of the hypothesis were raised.

478. As a rational alternative hypothesis consistent with DM's innocence, the defence advanced the proposition that the fire started accidentally. The mechanism for the accidental starting of the fire was posited as the ignition, by the pilot light of the gas heater (or possibly by a spark from the electrical equipment in the area), of methylated spirits from an opened bottle that had been left in the area of the television set when the family left the house; the defence further put that this fire then spread throughout the house, and that this fire was the direct source of all fire damage to the house.

479. I note at this point, although without entirely understanding what to make of it, defence counsel's statement, in response to the Crown's comment that the defence case seemed to be that methylated spirits was innocently stored in the lounge room, that:

there's an explanation ... on the evidence that a bottle of methylated spirits innocently stored could have had some role to play but there are no admissions at all.

480. The defence also relied on what was said to be another hypothesis that was consistent with DM's innocence, namely that, as Mr Robinson had concluded, "The cause of the fire is undetermined" (at [389] above).

481. I do not regard this as a "rational alternative hypothesis consistent with innocence". The Crown's hypothesis is about the cause of the fire; in essence, it is that DM deliberately started the fire. Apart from the hypothesis of an accidental start to the fire, a variety of other more or less rational alternative hypotheses about the cause of the fire could be suggested (an unidentified arsonist, spontaneous combustion, a lightning strike, even black magic) but all of those hypotheses would purport to explain the fire. The statement that the cause of the fire is unknown, let alone that Mr Robinson does not know the cause of the fire, is a statement that the fire cannot currently be explained, or cannot be explained by Mr Robinson.

482. The rational alternative hypothesis consistent with the accused's innocence must be an alternative hypothesis for the fire that accounts for the evidence. Evidence that one or more of the witnesses (Mr Robinson in particular) did not claim to know what caused the fire is not an alternative hypothesis about the cause of the fire, it is an entirely separate (and possibly irrelevant) proposition about the state of mind of the witnesses.

483. Of course, the absence of an explanation for a fire does not of itself mean that the occupant of the property must have started it, or permit a finding of guilt against that occupant. On the other hand, the proposition that the fire cannot be explained is not a useful alternative hypothesis where there is a strong circumstantial case that does point to an explanation for the fire.

484. Presumably for this reason, the defence focussed on undermining both the evidence of multiple seats of fire and the evidence of the presence of accelerants elsewhere than in the corner of the lounge room, while incorporating into its own hypothesis the evidence of the presence of methylated spirits in the fire debris in that corner. Thus, there was no challenge to the evidence of several Crown witnesses involved in investigating the house fire that they had smelled methylated spirits when they were sifting through the fire debris in the corner of the lounge room where the TV had been.

485. The key question in this trial is the physical origins of the house fire.

486. It seemed to be undisputed that as a fire in a room burns its initial fuel, volatile gases rise towards the ceiling and spread horizontally within the room or larger open area. Eventually, the room may heat up to the point where those gases also ignite (flashover) and the fire then burns also, and perhaps mainly, in the top portion of the room. In those circumstances, in parts of the room where there was initially no fire at low levels (eg on the floor or in the furniture or furnishings), the fire damage will be more severe in the higher parts of the room and less severe in the lower parts of the room (unless there has been drop-down of, for instance, a burning light fitting or curtains).

487. The photos exhibited in this trial show [more easily than it can be described] that in parts of the house with no floor-level fire, the fire seems to have spread by way of the spread of the gases building up under the ceiling and has burned downwards, causing far less damage at floor level than to the middle and higher parts of the room (see, for instance, photographs C.9 and C.10).

488. This suggests that, except where the entire height of a room has been damaged by fire, an area with significant fire damage at floor level is likely to have suffered a fire burning at floor level rather than simply fire damage caused by heat radiating from the ceiling fire. In this case, the Crown pointed to evidence of direct fire damage at floor level in both:

(a) the corner of the lounge room; and

(b) the area of the front door.

489. As already noted, there was much evidence given about burn patterns, and what could be learned from them. In the end, there was general agreement on several propositions:

(a) burn patterns may provide useful information about the cause and progress of a fire;

(b) as a fire progresses, burn patterns caused by the early stages of a fire may be burnt over so that the final patterns give no useful information about the origins of the fire;

(c) chemical analysis of fire debris is likely to give a more reliable indication of the presence of an accelerant than an inspection of burn patterns left after a fire has been burning either very intensely or for an extended period;

(d) chemical analysis will not necessarily give a definitive answer about the presence of an accelerant because, for instance:

• (i) chemicals found in certain accelerants may also be found in other substances that were innocently present in the premises (eg crayons and petrol have some common components: at paragraph 8.2 of Mr Cafe's second report, quoted at [435] above); or
• (ii) certain accelerants may be removed by firefighting processes (eg methylated spirits is readily dispersed in water: at paragraph 7.8 of Mr Cafe's second report, quoted at [435] above);

(e) care is needed in the interpretation of burn patterns, because there may be multiple possible explanations for a particular burn pattern: for instance, a burn pattern on a floor might reflect the pouring of accelerant onto the floor and the ignition of that accelerant, or it might have been caused by drop-down of burning materials (eg a light fitting) from overhead.

490. That generally consistent approach to the significance of burn patterns did not mean that individual witnesses did not hold, and express, strong views about the conclusions that should be drawn from the burn patterns observed in DM's house after the fire.

491. Burn patterns were relied on to indicate the involvement of accelerants in the fire, and also to establish that there had been multiple seats of fire.

492. I note at this point that at its highest, Mr Cafe's evidence was to the effect that chemical testing showing the presence of accelerants would have provided better evidence of the use of accelerants than did analysis of burn patterns. His evidence of the volatility of methylated spirits confirmed the feasibility of both the Crown hypothesis and the defence hypothesis that methylated spirits had been an accelerant in starting the fire despite not having been detected in chemical analysis of fire debris. However, it did not help in determining whether the fire had been started deliberately or accidentally. In particular it did not provide any extra support for the defence hypothesis of an accidental start to the fire; the fact that methylated spirits is highly flammable in the right circumstances does not answer the question whether any of the circumstances necessary for an accidental ignition were present when the fire started.

493. As noted at [484] above, there was no challenge to the evidence that an odour of methylated spirits had been detected by fire investigators in the fire debris found in the corner of the lounge room.

494. The first 000 call was recorded only seconds before 12.39 pm. There was evidence from several witnesses that by 12.40 pm the fire was producing a large amount of smoke that was visible from quite some distance and that it had significantly taken hold by around that time (at [107] - [115] above).

495. Evidence that I accept from various Crown witnesses (Officer Grech, Officer Cahill and Mr Scott) was that if the fire had not involved the use of accelerants, it would have had to start quite some time before 12.30 pm for it to have reached the stage it had by 12.44 pm when the first fire truck arrived (above at [242] to [247]; [287] to [289]; [335] to [340]). That is, the fire would have been noticeable to anyone who had been in the house until 12.30 pm or later, and probably to anyone who left the house even as early as 12.20 pm (see [457] above for findings about when the family left the house).

496. There was also evidence from Commander Talbot that the fire, being intense but localised, had probably burned for a shorter period than if it had been less intense but spread over a wider area (at [264] to [266]).

497. Defence counsel challenged the evidence of the various firefighters about the likely timing of the fire by saying that the Crown had not established "that the opinion advanced by members of the fire brigade was based wholly or substantially on the person's training, study or experience", and said that the evidence was "speculative at best". She noted that neither Officer Grech nor Officer Cahill was a qualified fire investigator at the time of the fire, and that Mr Scott had not conducted the investigation into the fire at DM's house.

498. I reject defence counsel's submission. An on-the-spot assessment by an experienced firefighter of how long it would have taken a "live" fire to reach the stage then observed by the firefighter is not the same as conclusions reached in an after-the-fact investigation of the fire. I consider that the experience of firefighters, even without any formal training or study, is likely to provide them with specialised knowledge of the progress of fires and a capacity to assess, from their observations of a particular fire at a particular stage, how long that fire is likely to have been burning.

499. It emerged in the evidence of several witnesses that only a relatively small proportion of fires are regarded as suspicious, which suggests that in a relatively large proportion of fires, there will be witnesses who are both able and willing to tell firefighters roughly (or even exactly) when the fire started, and possibly quite a lot about its causes or at least its circumstances. That is, an experienced firefighter is likely to have observed a number of fires with knowledge of how long they have been burning, and is therefore likely to be able to assess from observations of a new fire how long it is likely to have been burning.

500. I see no reason to reject the opinion of Commander Talbot (at [264] above) to the effect that an intense but localised fire is likely to have burned for a shorter time than an otherwise comparable fire that is either less intense or more wide-spread, or the descriptions of the fire as intense given by Officer Grech and Commander Talbot (at [238] and [264] above).

(a) that the fire started very shortly before it was first noticed and reported by a member of the public, and in particular that it had not been burning, undetected by the family, before they left the house; and

(b) that this suggests that accelerants were involved in the start of the fire.

502. The Crown submission that burn patterns indicated the use of accelerant in areas of the lounge room and especially in the front hallway relied heavily on the evidence of several Crown witnesses. Those witnesses pointed to aspects of the condition of the house after the fire and said that they had identified burn patterns in several areas of the house that, they believed, indicated that an accelerant had been poured on the floor and ignited. The defence challenged this submission, first by calling evidence to the effect that burn patterns were an unreliable indicator of the presence of an accelerant (see [489] above) and, in relation to burn patterns identified in the front hall, by suggesting that the patterns relied on by the Crown could be explained not by reference to the presence of accelerants but by reference to a piece of masonite found on the floor of the front hallway after the fire and removed by fire investigators.

503. It was accepted by both parties that a fire had started in the south-western corner of the lounge room, in an area occupied by a lounge chair, a TV stand and assorted electrical equipment.

504. However, there was also evidence from Officer Cahill and Mr Scott of short-lived floor-level fires in three other parts of the lounge room (at [306] to [308] and [347] above). Officer Cahill's evidence about this matter was challenged but maintained in cross-examination (at [325] above), while Mr Scott was not cross-examined about this evidence.

505. Crown witnesses gave evidence about "burn patterns" in the front hall that were said to indicate the presence of accelerants. These burn patterns were:

(a) a roughly circular patch of charring in the middle of the hallway floor not far from the front door (which I shall refer to for convenience as the round burn pattern); it is visible in the middle of photographs C.6, Views 1 and 2;

(b) a roughly triangular patch of charring on the hallway floor (on the lounge room/north side of the hallway and near the front door); it is visible, although largely covered in water, at the bottom right corner of photographs C.6, Views 1 and 2; and

(c) several aspects of the state of the front doorway and the front door and front screen door (visible in photographs C.5 and C.7).

506. It seems that no photographs were taken of the hallway floor after the removal of debris and of the water being used to clean the surface. The burn pattern photographs put in evidence were taken in conjunction with the use of a high pressure fire hose to clear the water from parts of the floor but also to show that the "pooling" of the water in the hallway near the front door matched the burn patterns on that part of the floor.

507. This was very unsatisfactory. While the pooling of the water was certainly relevant to the Crown case, the actual burn patterns along the length of the front hallway, but certainly at least to the far end of the doorway into the lounge, would also have been useful to an assessment of the validity of the propositions put by each party about the burn patterns.

508. Officer Cahill, in his report and in oral evidence, described the round burn pattern in the front hall (at [309] and [322] above), and said that it could not have been created by overhead radiated heat. The "feathery" edges of the round burn pattern suggested the use of an accelerant, because, he said, an ignitable liquid burns from the outside of the patch or pool of liquid (leaving a "fluffy" or "feathery" edge around the outside) into the centre, where the charring will be heaviest.

509. Mr Scott also referred to the round burn pattern in the hallway, saying that he could not explain it otherwise than as representing a pool of liquid accelerant. He accepted that it could have been caused by drop down of a burning item such as a light fitting onto the floor, but said they had not found anything on the floor that might have "dropped down" (at [351]).

510. In cross-examination Mr Robinson agreed with defence counsel that the round burn pattern could be explained simply by "radiated heat, something burning on top of it".

511. I cannot see how the round burn pattern on the hallway floor (surrounded by relatively unburnt floorboards that are visible on the bottom left-hand corner of each of photographs C.6, Views 1 and 2), could have been caused by overhead radiated heat unless the surrounding floorboards had been somehow shielded from that heat, or the overhead heat source had been shielded from all but the area of the burn pattern (as a suitably shaped lampshade will allow light from the lamp to define a clearly lit area on the surface beneath rather than illuminating a broader area).

512. As to the latter possibility, it is hard to imagine a structure shielding a source of radiant heat from above so as to produce the burn pattern but then disappearing without trace, after the burn pattern was created but at a point when there was no more burning, or heat, to obscure the pattern.

513. However, under cross-examination of Crown witnesses Mr Scott and Mr Robinson, it emerged that an irregularly-shaped piece of masonite had been discovered on the hallway floor after the fire.

514. Photograph C.8 shows the masonite board being held up by a person identified by Mr Robinson as Officer Cahill, and photograph C.7 shows the masonite board in situ. For reasons that did not become clear (but may have been related to the strong belief of investigators, held from an early point, that the fire had been deliberately lit), the masonite does not appear to have been kept or examined, although it was photographed after being picked up from the floor. It was not mentioned in Officer Cahill's report about the fire.

515. It is apparent from the photographs at C.6 that both the round burn pattern in the middle of the hall, and the charred area on the right hand-side of the photographs running up to the edge of the unburnt area representing the shelving unit, have edges that could be described as ragged (contrasting with the clean lines marking out the shelving unit area) or as "feathery".

516. Mr Scott's evidence about the masonite board (at [352] and [353] above) was that the presence of the masonite board could have explained the relatively unburnt part of the hall floor near the front door, but not the feathery pattern further along the hall floor or the round burn pattern.

517. Mr Robinson's evidence was to similar effect in relation to the masonite board and the unburnt floorboards in the corner of the hall board (at [384] and [385] above).

518. I have no doubt that photograph C.8 shows the board that in photograph C.7 occupies the area starting in the top right-hand corner of the hall (as one looks at the photograph) and extends about half-way across the threshold and along into that part of the hall opposite which the shelving unit was positioned.

519. I accept that the presence of the masonite could have, indeed probably did, explain the relatively undamaged floorboards in the front left hand corner of the hall. Defence counsel said that the masonite board "had offered some protection to the floor underneath", and I am not aware of any challenge to this submission.

520. However, the presence of the masonite board does not seem to explain the ragged ("feathered") edges of that unburnt area by comparison with the very clean edges of the unburnt floor area that was apparently protected by a piece of furniture (described by Mr Scott as a "shelving unit") that stood in the hall. The board shown in photograph C.8 is an irregular shape, but does not seem to have ragged edges matching the edges of the charred area on the lounge-room side of the hall.

521. It seems possible that the damage sustained by parts of the floor around the edges of the masonite board might have been caused by accelerant leaking in under the masonite and then igniting, and indeed it is not clear how else that damage would have been caused if the floor was protected from radiant heat by the masonite as suggested by the defence. That possibility is not inconsistent with the evidence of the Crown witnesses to the effect that the feathering pattern around the charred areas not protected by the masonite is indicative of accelerant burn.

522. Nor would the presence of the masonite explain the relatively undamaged floor boards further along the left side of the hall that could not have been covered by the masonite. If the significant charring in the round burn pattern in the middle of the hallway was simply caused by overhead radiated heat from ceiling fire, then other parts of the floor beyond the reach of the masonite must also have been protected by unidentified objects spread so as to leave only the very irregular and patchy burnt areas exposed.

523. The other possible cause of the round burn pattern, "drop down", was ruled out by investigators because they had found no evidence of anything dropping down, and I heard no suggestion from anyone familiar with the house before it caught fire that there had been, say, a large light fitting above the area of the round burn pattern.

524. That is, the evidence about the masonite board addresses an interesting aspect of the state of the front hall floor, being the relatively undamaged part of the floor near the left side of the front doorway, but does not appear to address the significance of the round burn pattern that is relied on by the Crown, and does not appear to exclude the presence of accelerant on the hall floor.

525. Defence counsel submitted that the masonite board also raised questions about the investigator's approach. She submitted that "in a significant respect Fireman Cahill's evidence was deliberately misleading", and accused him of advancing "an hypothesis to implicate the accused". Her argument was that clearly Officer Cahill was aware of the board and its location, and that:

it would have been obvious to him, that the unusual pattern underneath where the Masonite board had been lying had been created by the fire not reaching those floor boards (or this was at least a possibility if not a probability) the floor boards having been partially protected or covered by the Masonite board at the time of the fire. Notwithstanding this, Mr Cahill attempted to convince the Court that flammable liquid had apparently been poured on the floor boards in the hallway by the accused and that the accelerant had caused a "feathery edge" pattern. ... It would have been known to him, as he himself removed the Masonite board, that the burning around the edge of the Masonite board had created the unusual pattern seen of [sic] the floor boards in the hallway.

526. Counsel's submission suffers from the fact that she did not cross-examine Officer Cahill about her propositions, or indeed about the masonite board at all. To that extent at least, her accusation that Officer Cahill's evidence was "deliberately misleading" must be rejected. Nor did she advance any basis for suggesting that Officer Cahill sought to implicate DM, as distinct from giving evidence that he clearly believed did implicate her.

527. Furthermore, my conclusion that the presence of the masonite board on the hall floor addresses the relatively unburnt section of the hall floor close to the front door, but does not explain the feathery edges of the round burn pattern (unless, and to the extent that, they were caused by accelerant leaking under the edge of the masonite board) is based not on Officer Cahill's interpretation of the various burn patterns but on evidence such as that given by Mr Robinson about the part of the hall floor on which the masonite board was lying, and a comparison of the shape of the masonite board with the shapes of the relatively unburnt section of floor at the front of the hall and of the round burn pattern (photographs C.6, C.7, C.8 and C.9).

528. The prosecutor submitted that Mr Robinson's evidence (at [510] above) about the round burn pattern, and other evidence given by Mr Robinson about his observations in the front hall, should be discounted as "at best neutral", having regard to the fact that Mr Robinson's experience with fire investigation was more limited than that of the various Fire Brigade members who gave evidence, and because his evidence about the location of the masonite board was inconsistent with that of Mr Scott.

529. I have already expressed a view discounting Mr Robinson's opinion about the round burn pattern (at [511] and [512] above). However, I do not consider that the evidence given by Mr Robinson and Mr Scott about the location of the masonite board was necessarily inconsistent, except to the extent that it suggested an inconsistent view about the limits of what was described as the feathery edge. I note in passing that the process of extracting evidence from witnesses by reference to photographs could have been handled far more effectively, by both counsel in this trial, by the simple and commonly-used expedient of inviting witnesses to mark copies of photographs to clarify what they had described orally.

530. There was also a roughly triangular patch of heavy charring in the lounge room (north) side of the hall, bounded by:

(a) the north edge of the front doorway;

(b) the wall between the hall and the lounge room; and

(c) the roughly diagonal "feathered" line between the edge of the front doorway and the shelving unit; the "feathered line" was described by Mr Robinson as showing the edge of the masonite board.

531. The photographs put in evidence (eg photographs C.6 (Views 1 and 2)) showed the relevant area covered by water from the fire hoses, but the evidence was that the floorboards underneath the water were heavily charred. Officer Cahill said (at [317] above) that this area of deep charring could not be explained by its proximity to the lounge room entrance, since the charring was heavier than that found immediately beside that entrance to the lounge room.

532. Mr Scott said that the round burn pattern did not extend along the hall beyond what could be seen in the photographs at C.6. As the hall was hosed, Mr Scott had observed that the water ran back towards the front door and seemed to be pooling on the right side of the front door (that is, in the roughly triangular area I have already described). This, he said, was consistent with there already having been a depression in the floor where the water pooled.

533. The pooling of the water from the firefighters' hoses was said to be important because the line of pooling aligns with the heaviest charring of the bottom of the front door and doorway. The Crown witnesses were firmly of the view that the burn patterns in the front hall suggested that accelerant had been poured onto parts of the front hallway. The proposition that a liquid accelerant would have pooled at that point in the front hallway was said to explain the particular burn patterns near the front door. On the other hand, defence counsel suggested that the pooling of water from the fire hoses might have shown only that the heavy charring of the triangular section had, in effect, lowered the floor level at that point (especially after burn residue had been washed away by the fire hoses), resulting in pooling; that is, the charring could have been a cause of the pooling of the water that was applied subsequently rather than being caused by the pooling of an accelerant applied previously.

534. The Crown witnesses also relied on the condition of the two front doors to indicate the use of accelerant.

535. There was considerable damage caused to the ceiling and upper parts of the hall walls, and to the two front doors (see photograph C.5).

537. The front screen door suffered major damage to, roughly, its top third; most of that part of the door was completely destroyed. Officer Cahill, Mr Scott and Mr Robinson all pointed to burn patterns on the inside bottom of the screen door. Officer Cahill and Mr Scott referred to a scorch mark in that location, which is visible, although looking more like a shadow, in photographs C.5 and C.7. Mr Robinson referred to the lighter area around the scorch mark as "clean burn".

538. Officer Cahill, at [315] to [320] above, said that the scorch marks aligned with the area of the deepest charring on the floor boards closest to the door, but that this charring could not be explained by proximity to the lounge room fire and therefore suggested the pouring of an ignitable liquid in the area of the door.

539. Mr Scott, at [350] above, also said that the marks on the bottom of the screen door suggested fire at the base of the door as well as at the top, and such a fire would have needed fuel, which could have been a liquid on the floor.

540. Mr Robinson, at [387] above, said that the apparent "clean burn" at the bottom of the screen door suggested "more heat" in that area.

541. The damage near the ceiling, and to the tops of the doors, was consistent with radiated heat from ceiling fire in the hall (see [230] above) that had spread from the lounge room fire.

542. It is apparent from a comparison of photographs showing fire damage in the bedrooms (C.9 and C.10) with the photograph of the lounge room (C.2) that the intensity of fire burning at ceiling level was less in parts of the house more distant from the lounge room. However, having regard to the evidence I heard about how a fire spreads (in particular, at [228] and [229] above), I have assumed that the gases burning under the ceiling in the hall would have been burning at a fairly consistent density and heat in the areas roughly equidistant from the doorway between the hall and the lounge room (that is, that the heat generated by the overhead burning, say, one metre from that doorway towards the front door would have been roughly the same as the heat generated by the burning one metre from that doorway towards the back of the house). The ceiling fire burning closer to the front door might have had more ventilation, but the ceiling fire burning towards the back of the hall might have been more intense because, as indicated in Plan C.1, ceiling fire spreading out from the lounge room door in that direction would have met ceiling fire spreading from the lounge room via the dining area and kitchen.

543. Accepting the presence of ceiling fire in the hall, it appears that there was also a significant burn at floor level around the front door (photograph C.7 shows deep charring at the threshold and up the sides of the doorframe). This would explain the total destruction of the solid front door, which is to be compared with the deep charring of part only of the board found in the hallway (at [311] above, and photographs C.6 ((Views 1 and 2)). That partial charring of the board, however, suggests one of two possibilities (see also at [558] to [563] below):

(a) that the board was burnt from the top down, but that the overhead radiant heat in that part of the hall was not sufficient to char the board down to floor level - this conclusion would make it hard to explain the total destruction of the solid front door by radiant heat from the overhead fire; or

(b) that the board was burnt from the bottom up, and that the charring was caused by a floor level fire rather than an overhead fire.

544. I am satisfied that the charring and other burn patterns at floor level in the hall cannot be explained simply as caused by radiant heat from ceiling fire that originated in the lounge room but had spread from the lounge room and was burning in the hall. Nor, having regard to the evidence about how fire spreads, does it seem likely that the lounge room fire had spread to the front door at floor level (unless there was, for instance, a trail of accelerant at floor level, which is a scenario not suggested in this case by anyone and which I accordingly disregard).

545. As already noted at [518] to [525], the relatively undamaged part of the hall floor very close to the front door could be explained by the presence of the masonite board protecting it from radiated heat from ceiling fire, but this does not explain the other relatively undamaged parts of the floor further into the hall that would also have been affected by the same radiated heat from overhead.

546. If the uneven burn patterns at floor level in the hallway, and particularly the significant charring on the floor immediately inside the front door (at [530] and [531] above) cannot be explained by overhead radiant heat from ceiling fire, then it seems that they must have been caused by a separate fire burning in the front part of the hall.

547. The burn patterns on the lounge room floor that are said to indicate the application of accelerant to rugs and the underside of a sofa do suggest to me the use of an accelerant. The use of an accelerant in those locations does not, however, seem to have contributed in any significant way to the lounge room fire.

548. I am satisfied that some (possibly a significant part) of the fire damage to the front doors, as well as the damage to the hall floor in the front part of the hall and especially the damage to the front doors, the door frame and the threshold, was not caused by ceiling fire spread from the lounge room fire, but by fire burning at floor level in that area of the hall.

549. My conclusion that there was fire burning at floor level in the front hall relies on the burn patterns seen on the hallway floor, on the front door frame, and on the inside of the front screen door, as well as on the total destruction of the front door and the burning on both sides of the other "door" found in the front hall after the fire (at [309] to [312] above). None of these patterns seems to be explained by the progress of the lounge room fire.

550. The conclusion that there was fire burning at floor level in the front hall does not depend on, or imply, a finding that the fire concerned was caused by a liquid accelerant poured directly onto the hallway floor at the points said to show a pooling or burning accelerant; that is only one of the ways in which a fire could have started just inside the front door. Nor is that conclusion excluded by, for instance, the evidence of Mr Scott (at [353] above) and Mr Robinson (at [387] above) about the absence of any sign of accelerant seeping through the hall floorboards.

551. In summary, I consider that some of the burn patterns in the hallway probably do indicate the use of an accelerant (eg the round burn pattern), although not necessarily applied directly to the floorboards, whereas others (eg the triangular area of charring near the front door) might simply reflect the heat of the fire at the front door and the shielding of other parts of the floor by the masonite board.

552. There did not seem to be any challenge to the Crown case that a fire had originated in the south-west corner of the lounge room. The Crown asserted that a separate fire had originated at the front door of the house.

553. Significant factors in the conclusion that a fire had originated in the south-west corner of the lounge room, near the bottom left corner of the gas heater, were:

(a) burn patterns on the front panel of the gas heater suggesting flames rising from the bottom left corner at an angle of about 45° across the front of the heater, and leaving the paintwork on the bottom right corner "generally intact" (at photographs C.2 and C.3 below); and

(b) that the fire seemed to have burned most intensely in the area between the left side of the heater and the corner of the lounge room, an area in which there were a single seater lounge chair and a stand on which were a TV set and other electrical equipment; this was the area where the walls and ceiling had been most severely damaged by the fire.

554. As to the cause of that fire, investigations had ruled out an electrical fault in the gas heater, and a gas leak or gas line rupture; the gas pipe feeding the heater (as distinct from the vent out of which warm air was blown into the room) was at the bottom right of the heater, and no damage to or failure of the gas line had been found.

555. Although there had been initial suggestions that the fire might have resulted from clothes on a clothes rack near the gas heater having caught fire, I heard no serious suggestion that the clothes on the rack could have been ignited by the warm air being blown out of the gas heater, and the evidence of Crown witnesses that this was not a feasible explanation for the fire (eg at [261] above) went unchallenged.

556. There was also evidence of short-lived fires in a rug or mat on the lounge room floor and under the sofa bed (at [305] to [308] above).

557. Apart from the evidence specifically said to suggest a use of accelerant in the hallway (at [505] to [550] above), there was evidence that a fire had been burning at floor level at or close to the front door. Much of that evidence has already been canvassed in relation to the possible use of accelerants.

558. The partial burning of the large board found on the floor of the hall has already been contrasted with the total destruction of the solid front door (at [543] above), but it also has independent significance. The board was identified by the fire investigators (at [311]) as a door, or at least as having been in use as a door. The board was burned along about two-thirds of its length, and on both sides.

559. Neither the partial burn along the length of the board, nor the burning on both sides, would have been explicable if the board had been lying on the floor at the start of the fire.

560. The partial burn along the length of the board would have been explicable if the board had been upright at the start of the fire, whether in the doorway between the hall and the lounge room (functioning as a door) or leaning against a wall in the hall.

561. However, if the board had been leaning against a wall in the hall, then the burning on both sides would suggest a fire on the hall floor; this is because if the source of heat was gases burning near the ceiling, then the side of the board facing into the wall would have been relatively protected from that heat, whereas a floor fire could have been burning on both sides of the board.

562. Alternatively, if the board, although not apparently hung as a door, had been functioning as a door between the lounge room and the hall, and was in a closed position during the fire, it would have slowed down the movement of hot gases from the lounge room into the hallway, and the consequent burning at the hallway ceiling. In that case, the burning on both sides of the board could not adequately be explained by radiant heat from hot gases moving from the lounge room fire into the hall, but would suggest fires on both sides of the door.

563. The presence of that barrier across the doorway between the lounge room and the hall would have reduced the damage caused in the hall by burning gases dispersing from the lounge room ceiling. This however makes it difficult to account for the actual damage done to both the hall side of the door (whichever side that was), and to the hall floor, unless there was a separate fire on the hall side of that door as well as the fire on the lounge room side.

564. I note also in this context the evidence of Officer Cahill at [310] above that the heavy charring in the front hall diminished further away from the front door, and Mr Scott's explanation at [229] of how a fire spreads, specifically his explanation that:

[the gases generated by the fire's fuel as it burns] move up to the ceiling because they're hot and they start to build up in that area. The more ventilation and the more area in the room, the more that can spread out before it starts to move down from the ceiling, lower.

565. That evidence suggests to me that gases that had been given off by the lounge room fire and had spread into the hall ceiling were likely to be burning at roughly the same height throughout the length of the hall, rather than burning closer to the floor near the front door and further from the floor towards the back of the house. That in turn suggests that the difference in the level of charring between the front part of the hall and that part of the hall towards the back of the house was not entirely attributable to ceiling fire in the hall, but suggested an extra source of fire damage in the front part of the hall.

(a) the damage to the front and front screen doors (at [534] to [546] above), and the burn patterns at the bottom of the screen door;

(b) the burn patterns on the hall floor in the front part of the hall;

(c) the heavier charring of the hall floor near the front door compared with that part of the hall floor closer to the back of the house; and

(d) the burn patterns on the board found in the front hall and identified as a door;

I conclude that not all the burning at the front door and in the front part of the hall can be attributed to the spread, into the area near the hall ceiling, of hot or burning gases generated by the fire in the lounge room.

567. I further conclude that the hallway burn patterns, separately from the relatively indirect evidence they provide of the use of an accelerant in the hall (at [551] above), provide strong evidence of a separate seat of fire at floor level in the hallway near the front door.

568. In summary, I am satisfied that there was a separate fire that started in the front hall at or near the front door.

569. Finally I mention for the sake of completeness the evidence that, at its highest, is consistent with the presence of petrol in one of the methylated spirits bottles in the recycling bin and in the fire debris, without providing any substantial positive evidence of the presence of petrol (at [366] to [373] above). The prosecutor in final submissions said that it was not part of the Crown case that DM had mixed petrol with methylated spirits, and I have accordingly disregarded that evidence.

570. As already noted, the Crown's hypothesis was that the fire had been deliberately lit in the corner of the lounge room after accelerant had been deliberately distributed, and that a separate fire had been started in the front hall, also involving accelerants.

571. The serious defence hypothesis (as distinct from the claim that the cause of the fire was unknown or undetermined, which is discussed and dismissed at [480] to [482] above) was that the single fire responsible for all the damage had been started accidentally when methylated spirits left in an open bottle on the TV unit after it was used to clean the TV screen was ignited, either by the pilot light from the gas heater or by a spark from one of the various electrical items in the area of the TV.

572. The defence did not challenge the general proposition that the fire could have been deliberately started in the corner of the lounge room by the distribution and then ignition of methylated spirits, although certain parts of the evidence for that proposition were challenged. Instead, the defence relied on suggesting, as a "rational alternative hypothesis", the proposition that the fire could equally have started in the corner of the lounge room as a result of the accidental distribution and accidental ignition of methylated spirits left on the TV unit.

573. The hypothesis of an accidental start to the fire, advanced on behalf of DM, was articulated by Mr Cafe in Part 7 of his first report (at [433] above). In subsequent submissions, the following suggestions emerged:

(a) The vapour from an opened bottle of methylated spirits that had been left in the lounge room in the vicinity of the TV had evaporated and risen to the level of the heater's pilot light.

(b) This might have been facilitated by the bottle being knocked over (possibly by the family dog which O had let into the house just before the family went out, or the methylated spirits might simply have evaporated from the bottle.

(c) Either:

• (i) the vapour had reached the pilot light at an appropriate temperature and an appropriate concentration to ignite; or
• (ii) the vapour around the TV area had reached an appropriate temperature and an appropriate concentration to ignite at the same point at which one of the electrical items in that area had sparked.

574. The possibility that the methylated spirits vapour was ignited by a spark from the electrical equipment was alluded to by defence counsel at several points but, unlike the pilot light version of the hypothesis, it was not put to most of the expert witnesses in cross-examination.

575. The hypothesis also required a proposition along the lines that this ignition would then have been capable of igniting combustibles in the room, most likely the clothes hanging on a rack near the heater or the lounge chair sitting beside the heater, and that those combustibles would then have burned with sufficient intensity to produce the fire observed by Fire Brigade officers who arrived shortly after DM and her children reached the bus stop.

576. The scientific evidence available to me was presented in a remarkably disorganised and unscientific way. However, the following information was in evidence:

(a) the flashpoint of methylated spirits is 13°-16°, and the flash-point of ethanol (the principal component of methylated spirits) is 15°;

(b) the boiling point of methylated spirits is around 70°;

(c) at the flashpoint, a flame passed over methylated spirits will cause a flash but burning will not continue;

(d) only when it reaches its boiling point will methylated spirits give off vapours such that it will continue to burn;

(e) the lower explosive limit of methylated spirits is a concentration of 3.3% in air; and

(f) the upper explosive limit of methylated spirits is 19%.

577. There was also evidence from Mr Scott that if the heater had a pilot light, it would have been positioned at least 30cm above floor level.

578. Although neither counsel attempted to summarise the consequences of that evidence, it seems to mean that the conditions required for methylated spirits (whether spilt from the bottle or simply escaping from the bottle by evaporation) to be ignited by a pilot light in circumstances in which it would burn sufficiently to ignite other fuel in the room were:

(a) that the methylated spirits had reached a temperature of at least 13°C;

(b) that it had, by evaporation (directly from the bottle or from whatever surface it was spilt on), spread in the room horizontally to a point of contact with a pilot light involving a naked flame (or to a point of access into the part of the heater housing such a pilot light) and vertically to a height of at least 30 cm;

(c) that when it reached the naked flame of the pilot light, the concentration of the methylated spirits in the air around the pilot light was between 3.3% and 19%;

(d) that at the point of contact with the naked flame, either the methylated spirits had already reached 70°C, or the flash at that point was sufficient to heat the methylated spirits to 70°C, thus enabling the methylated spirits to continue to burn;

(e) that there was enough methylated spirits ignited by the pilot light to continue to burn (presumably inside the heater) until it had ignited other fuel in the room (being some kind of combustible that would continue to burn) rather than either burning off immediately or, possibly, continuing to spread to a point where its concentration was too low for it to burn.

579. The conditions required for the methylated spirits to be ignited by a spark from electrical equipment seem to have been:

(a) that the methylated spirits had reached a temperature of at least 13°C;

(b) that it had, by evaporation (directly from the bottle or from whatever surface it was spilt on), spread in the area of the TV set to a concentration of methylated spirits in the air between 3.3% and 19% at the point when an electrical item sparked;

(c) that at the point when the electrical item sparked, either the methylated spirits had already reached 70°C, or the flash at that point was sufficient to heat the methylated spirits to 70°C, thus enabling the methylated spirits to continue to burn;

(d) that there was enough methylated spirits ignited by the spark to continue to burn until it had ignited other fuel in the room (being some kind of combustible that would continue to burn) rather than either burning off immediately or, possibly, continuing to spread to a point where its concentration was too low for it to burn.

580. Neither counsel sought to lead any other evidence, or to make other than general submissions, about the impact of the scientific evidence that had been given, whether by way of identifying the necessary conditions in the way I have sought to do at [578] or [579] above, or otherwise, or about whether there was any chance of the conditions implicit in that scientific evidence being satisfied in the circumstances of this fire.

581. There is no evidence that the heater had a pilot light with a naked flame, or indeed any other kind of pilot light; O's evidence at [103] above suggests to me that the heater had some kind of electronic ignition that might have sparked when a button was pressed on the outside of the heater, but was not active otherwise.

582. There is no evidence that any pilot light inside the heater was located somewhere into which air could flow from the lounge room, otherwise than via the warm air outlet or at all.

583. Peter O'Neill's evidence at [396] above, that the heater had not been damaged by "internal heat", suggests that it was not the inside of the heater that provided the fuel needed for a fire started by the ignition of evaporating methylated spirits to take hold in the house.

584. There does not seem to be any basis for the proposition that methylated spirits evaporating from either the floor of the lounge room or from within an uncapped bottle on the TV unit could have entered the heater and reached any pilot light. In particular, if the heater was operating (as the evidence indicated), it seems highly unlikely that evaporating methylated spirits from the lounge room could, via the warm air outlet but against the flow of warm air being blown out of the heater, have reached any pilot light at a concentration of at least 3.3% (and no more than 19%), and could have remained at that concentration in sufficient volume and for sufficient time for it to burn sufficiently to ignite fuel inside the room but outside the heater.

585. As to the version of the hypothesis relying on a spark from an electrical item, defence counsel relied on Mr Cafe's evidence that "if there's a naked flame or a spark" it could ignite the vapour cloud created by evaporating methylated spirits, and on the evidence of Mr Robinson that he couldn't exclude an electrical fault as an ignition source.

586. On the other hand, Officer Cahill's unchallenged evidence was that examination of the electrical connections and devices behind the television set indicated that they were not an ignition source (at [304] above).

587. I consider that it is highly unlikely that all the necessary conditions would have been satisfied to enable the fire to have started as hypothesised by the defence.

588. However, in the absence of any submissions about the impact of the scientific evidence as such, I rely for my conclusion about the pilot light hypothesis only on the following matters:

(a) the absence of evidence that the gas heater had any kind of pilot light with a naked flame anywhere in the gas heater that was accessible from inside the lounge room, or at all;

(b) the evidence that there was no internal damage to the heater;

(c) the unlikelihood that methylated spirits evaporating from within the lounge room would have moved at any significant pace, or perhaps at all, into the heater through the warm air outlet but against the flow of air into the room;

(d) the unlikelihood that any such methylated spirits would have reached any such naked flame in such quantities as to continue burning until it was expelled back into the room via the warm air outlet and was able to ignite suitable fuel within the room.

589. As for the spark hypothesis, I rely on the absence of evidence that any of the electrical equipment in the area of the TV had been an ignition source, the positive evidence from Officer Cahill that the electrical equipment had been ruled out as an ignition source, and the unlikelihood that a spark from an electrical item would have ignited a sufficient quantity of evaporating methylated spirits for it to have burned long enough to ignite suitable fuel in the TV area.

590. As well, neither version of the defence hypothesis explains the evidence of a separate fire in the front hall.

1. For those reasons, I do not consider the defence hypothesis to be a rational alternative hypothesis for the start of the fire.

(a) the speed with which the fire developed after DM's family left the house;

(b) the absence of any rational alternative hypothesis to explain the start of the lounge room fire;

(c) the apparent use of accelerants in other parts of the lounge room; and

(d) the separate seat of fire near the front door;

I am satisfied that the fire that engulfed DM's house was deliberately started using methylated spirits and possibly other accelerants.

593. As to who had started the fire, there was no evidence to support the proposition that the fire was started deliberately by someone other than DM or her daughters, and there was unchallenged evidence making it very unlikely that it was started by either of DM's daughters.

594. There was no direct evidence of DM starting the fire. However, for reasons set out at [688] to [708] below, I reject the defence submission that there was direct evidence from DM's daughters that their mother had not started the fire.

595. The Crown identified evidence of the following matters as circumstantial evidence supporting its case that it was DM who deliberately lit the fire that destroyed her house:

(a) motive;

(b) premeditation;

(c) DM's proximity to the seat(s) of the fire;

(d) the development of the fire after DM left the house;

(e) a consciousness of guilt on DM's part, shown by:

• (i) her refusal to return to the house;
• (ii) her claim that she wasn't sure she had a policy with Budget; and
• (iii) what the Crown says are Edwards lies**;**

(f) DM's possession of accelerants and what she said she used them for;

(g) the intensity and timeline of the fire.

596. The Crown said that DM's financial difficulties provided a motive for her to start a fire, with a view to receiving a substantial insurance payout. In support of this submission, the prosecutor pointed to:

(a) the documents identified at [177] and [178] above showing arrears in regular payments and bank accounts frequently in debit;

(b) DM's inability to pay traffic fines, which had led to cancellation of her car registration and a licence disqualification for DM herself (at [179] and [180] above);

(c) the substantial debts carried by her husband and son (at [183] to [186] above).

597. I have found (at [471] above) that DM's financial position before the fire was not healthy.

598. During DM's police interview, she told Constable Yeo that debt was not a concern for her. The following exchange took place:

Q424: And it's you or one of your daughters. And so what did you want to say to that?

A424 ... I love where we were. I was happy where we were. That was my home and now I've been uprooted and I've been put somewhere for, you know, three months and then I could be moved again, I don't know. It screwed my life up. ... what's [the insurance] gunna do for me?

Q425 Get you fifty thousand dollars.

A425 If I needed money I'd go and get another personal loan. I don't need the money, you know?

Q426 You're already in debt enough as it is, though.

A426 ... I've always been in debt.

Q427 So maybe this is your first chance to get out of debt.

A427 ... it's never bothered me ... if it comes to the crunch, I can borrow from my ex-husband. ... there are other options. ... I borrowed some money off my husband's cousin.

599. DM may have been telling the truth when she said that she had always been in debt but that it had never bothered her. Defence counsel mentioned DM's near-completion of the repayment of a personal loan (at [178(d)] above), and other evidence that she had, for instance, caught up with her rent arrears, in support of the proposition that DM's debts did not bother her, that she was used to living frugally, and accordingly that she had "no current financial motive". Nevertheless, DM's implication that a $50,000 insurance payout would not be of any benefit to her is unconvincing.

600. As to the significance of the debts owed by DM's ex-husband and son (at [472] above), DM told police that her son's debts were between him and his father, and that he had begun to make arrangements to sell one of his cars. There is no suggestion that DM had any legal liability for, or involvement in, her son's financial arrangements.

601. The evidence of DM's ex-husband's possibly substantial debt is in my view irrelevant in terms of establishing any direct motive for DM. There is no evidence before me that establishes or even suggests that DM would have been inclined to take a serious risk to help her ex-husband pay off his debts, or that any of the insurance payout was likely to go to him for any purpose.

602. The evidence that DM's son had borrowed money to fund his ownership of one or more expensive cars does not establish that such a debt was a problem for him, and I see no reason not to accept DM's comments to the police indicating that her son's financial position was not a concern for her; I accept that DM's more cordial relationship with her son might have made her more inclined to take a risk if he had been genuinely in need of help, but there was no evidence to that effect.

603. I disregard the evidence of debts owed by DM's ex-husband and her son to the extent that the Crown submitted that those debts could have contributed to DM's motive directly.

604. On the other hand, the existence of such debts might have affected the extent to which either DM's ex-husband or her son could have provided any financial help to her. However, there is no evidence suggesting that, but for his own financial problems, DM's ex-husband might have been inclined to help her with her financial problems, except for her claim that if necessary she could have borrowed money from him.

605. Although I do not need to find a motive for DM to have started the fire, motive may be a significant issue in assessing a circumstantial case. I note that DM's financially precarious position (notwithstanding her claims to police that she was not worried about money), coupled with her contents insurance policy, would have made setting the fire a rational (albeit criminal) thing to do.

606. I do not, however, rely on DM's very quick approach to the insurance company in considering motive, because it may be that early contact with the insurance company was required under her policy, irrespective of whether a claim was to be made.

607. I accept that DM's ongoing financial insecurity (which might have been indirectly but was not directly affected by the debts carried by her ex-husband and son), would have been alleviated by a substantial insurance payout, and accordingly gave her a motive for starting the fire.

608. In written submissions, the prosecutor did not mention the forthcoming house inspection and issues relating to the condition of the house that are discussed at [66] to [74] above. However, in discussion of the admissibility of some of the documents mentioned in those paragraphs, the prosecutor said that the documents indicated:

that the accused would have known that if she had not rectified those things that she was in danger of receiving another notice to vacate and that, if one were to choose a date on which to burn one's house down, one might very well choose in advance of another property inspection, if one felt that one was not going to pass that property inspection.

609. The Crown pointed to evidence suggesting that DM had planned for the fire at least some days before it happened, and had taken steps to minimise the negative consequences of a fire in her home. In general terms, this planning involved the removal of items of value from the house into either the shed or the area of the clothesline (see findings at [462] above).

610. The Crown noted DM's claim in her police interview and during the execution of the search warrant that the items in the shed were, in general terms, things she did not want in the house (at [127] and [130] above) and contrasted this with Mr Scott's evidence that the shelves in the children's rooms looked quite bare (at [135] above). The Crown submitted:

If the accused had intended to throw these items away, she would not have bothered to protect them so well from the elements, or indeed would have actually thrown them away. It defies common sense that items would be stored with care if they were intended to be disposed of.

611. I do not accept this submission. First, to the extent that the items were to be "sorted", it is possible that some of them were to be retained, and there is no affront to common sense in protecting them pending that sorting. Even the items to be disposed of might have been destined for somewhere other than landfill, which would also have made sense of protecting them in the meantime.

612. On the other hand, DM's claim to Constable Yeo in her police interview (at [210] above) that she liked "untidy clutter" raises a query about her motivation for clearing shelves to a point where they were noticeably bare.

613. I accept the Crown's submission that the death of the family dog does not detract from the proposition that the fire was premeditated.

614. Accepting that DM would not deliberately have let her dog die in the fire, the Crown noted that there is evidence that O let the dog into the house shortly before they left the house and says that this could have happened without her mother's knowledge.[94] Evidence that DM did not know the dog was inside is also found in her statement in the police interview, and Officer Grech's evidence of DM's attempts to find the dog outside the house when she returned home after the fire (at [190] above).

615. If DM did not realise that the dog was inside when the family left the house, then the presence of the dog inside the house is irrelevant in assessing DM's role in the start of the fire.

616. The Crown says that there is evidence that DM was close to where the fire started shortly before she and her daughters left the house.

(a) It is accepted that a fire began in the corner of the lounge room where television and other electrical equipment was located.

(b) O said that the flames or lights she believed she saw as they left the house were in the area of the TV.[95]

(c) Both DM's daughters told police that DM was in the lounge room near the television immediately before they left the house.[96]

(d) DM said that they left the house together but that she was probably the last one out and the one who pulled the door closed.[97]

1. I am satisfied that DM was in the lounge room near the TV very shortly before leaving the house, that she was the last one to leave the house, and that she left by the front door. The fact that DM was the last person to come out the front door takes on added significance given that I have found that there was a separate seat of fire at or near the front door (at [566] - [568] above).

The time between the family's departure and the reporting of the fire

618. The Crown pointed to the evidence about when DM and her daughters left the house that I have canvassed at [458] above, and submitted that the clear inference from that evidence is that DM lit the fire immediately before leaving the house.

1. The Crown identified various matters as indicating what is referred to as a "consciousness of guilt" on DM's part, being:
   • (a) DM's refusal to return to the house when asked to do so by her daughters;
   • (b) DM's dealings with the insurance company;
   • (c) a number of things said by DM that the Crown says are Edwards lies (these are dealt with separately at [631] to [656] below).

620. The Crown says that DM's refusal to return to the house despite her daughters' concerns (at [460] above) demonstrates a consciousness of guilt in that it was motivated by:

(a) her knowledge that the house was on fire but that she needed to ensure a total loss in order to be able to claim on the contents insurance, which meant that she did not want to find herself in the position of needing to call the Fire Brigade; and

(b) her wish to place herself at a distance from the scene of the fire.

1. Mr Brown gave evidence that DM's case seemed likely to involve a "total loss situation" (at [197] above); however, he did not suggest, and nor did any of his evidence imply, that this was the only situation in which an insurance payment would have been made under the policy.

622. The Crown also says that it was not reasonable for DM to refuse to return to the house, because there was no particular urgency to catch the bus to get to the library, that O had already mentioned seeing flames, that they could all see smoke coming from the direction of their house, and that even if the fire was not at DM's house, it was possible that the fire was at the house of her next-door neighbour to whom she was close.

623. However, DM told police in her police interview that when they left the house, her neighbour's son was at home, but that he did not like her. In those circumstances it may not have been unreasonable for DM to conclude that she did not need to return to address any possible fire at her neighbour's house.

624. I do not find that it was necessarily unreasonable for DM to refuse to return home, but I accept that the evidence before me about that refusal permits an inference that DM had reasons for not wanting to return home, which could have included the reasons proposed by the Crown.

625. The Crown further says that the family took an indirect route to the bus stop, noting "common sense dictates that the actual route taken on the day of the fire was both indirect and atypical for the family".

626. I have found that the actual route taken was not the most direct route to the bus stop (at [458] above). However, I am not aware of evidence that it was atypical. Neither of the girls suggested that they had walked to the bus stop by a different route from the one they usually used, and each of them described their route as if describing their usual route: for instance, O said:

we go down and then we go into this other street and then there's like this path ... And then we just make our way down the path and then in front of the school ... there's ... the dome-shaped bus-stop.

627. I do not see that a wish to distance herself from the fire can be drawn from the route taken by the family as such. Indeed, DM's alleged wish to distance herself from the fire would not necessarily have been served by risking that they might miss the bus as a result of taking the longer route.

628. The Crown says that DM's comment to "Trish" when she first contacted the insurance company that "I think I have a contents insurance policy with you" (at [196] above) was deliberate disingenuousness because "the accused knew very well that she had a contents insurance policy with Budget Insurance". This is far too subtle an argument; there are other possible reasons (for instance natural diffidence or an uncertainty about the exact title of the policy) for DM to have spoken in a way that suggested uncertainty about the state of her insurance policy even if she were fully aware that the policy existed and was in force.

629. The Crown also suggests that DM's offer to withdraw the insurance claim during her taped record of interview if that would prove that she had not deliberately lit the fire, and her subsequent withdrawal of the claim, are also evidence of guilt. I accept that a person in DM's financial position who had just lost most of her possessions might have been reluctant to withdraw her insurance claim if she had a well-based belief in her own innocence, but it is also possible that such reluctance might have been outweighed by a fear of being charged with a serious offence.

1. All of the various matters identified by the Crown as showing a consciousness of guilt are relevant in assessing the circumstantial case. For the reasons given above, however, none of them is a particularly strong indicator of a consciousness of guilt as such, and I have given relatively little weight to any of them individually.

631. The Crown relies on a number of statements made by DM as "Edwards lies", that is, as amounting to admissions against her interests.

632. In the case of Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, a majority of the High Court (Deane, Dawson, and Gaudron JJ) said at 208-209:

There is a difference between the mere rejection of a person's account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition.

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him". (citations omitted)

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realization of guilt and a fear of the truth".

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. (citations omitted) (emphasis added)

634. See also Zoneff v The Queen (2000) 200 CLR 234 at [54] to [63], Kirby J, in particular for the proposition that the expression "consciousness of guilt" is better avoided in this context.

635. Thus, the basic questions that must be considered in determining whether a statement is an Edwards lie are these:

(a) Did the accused lie?

(b) Did the accused lie because the truth would implicate her in the offence?

(c) Might there have been some other reason for lying?

636. The Crown submissions are made under the heading "Edwards lies - consciousness of guilt". They slide between references to Edwards lies and references to consciousness of guilt, and possibly for that reason do not properly address the elements of establishing an Edwards lie that I have identified above.

637. In the submissions, the Crown referred to R v Renzella [1997] 2 VR 88; (1996) 88 A Crim R 65, and suggested that I direct myself in accordance with the emphasised words in the material quoted at [633] above. However, the Crown did not refer to their Honours' earlier reminder of the need to establish that the material relied on was a lie before considering whether the truth might have implicated the accused. This may explain the inadequacy of the Crown submissions asserting Edwards lies.

638. The submissions refer to the following matters as evincing a consciousness of guilt, but without identifying any specific lies:

(a) DM's explanation for her possession of the bottles of methylated spirits.

(b) The provision of multiple apparently inconsistent explanations for the location of the various personal items in her shed.

(c) DM's inconsistent statements about the presence of the medications found in her bag or box in the shed (the Crown says that her statement that she kept her medicine with her in the lounge room where she slept suggested that she needed it close at hand, but that her claim that the last time she had put anything in the shed was two or three weeks ago suggested either that she had lied about needing her medicines close by, or that she had lied about how recently she had put something in the shed).

(d) DM's multiple inconsistent statements about when she had last put items in the shed.

(e) The inconsistency between DM's statement that she probably had bills in the shed from 2005 (at [128] above) and the fact that there were very recent bills found in the shed (at [126] above).

(f) DM's change of mind about whether the TV had been on or off when the family left the house.

(g) The various discrepancies in statements about when the family left the house.

(h) What the Crown says were far-fetched and fanciful explanations for DM's refusal to return to the house when her daughters asked; this was identified by the Crown as showing a consciousness of guilt, and is dealt with at [620] to [624] above, but there was no attempt to identify any Edwards lie as such.

639. The Crown also said that DM was often evasive or non-responsive in answering questions during her police interview, but accepts that this would go only to her credit in general. I have commented on this submission at [46] and [48] above.

640. The Crown does not identify any particular statement about the presence of the empty and nearly empty methylated spirits bottles at DM's home as a relevant lie, saying only that "the explanation the accused proffers to explain the presence of three empty and one near-empty bottles of methylated spirits at her residence ... was done so by the accused in order to deflect suspicion".

641. The purchase of multiple bottles of methylated spirits in the days before the fire is a significant piece of circumstantial evidence (at [468] above). However, absent any useful submissions from the Crown, I cannot identify any particular part of DM's claims about her purchase and use of methylated spirits as an Edwards lie.

Location of medication and personal items in the shed

642. As for DM's statements about the box of medication and other personal items found in the shed after the fire, it is true that there is an apparent inconsistency between her statements during her police interview that:

(a) she kept the box of medication with her in the lounge room where she slept; and

(b) the last time she had put anything in the shed was two or three weeks ago;

and that DM attempted to address this inconsistency by suggesting that she might have taken the box out when she took other items out to the shed.

643. However, the apparent inconsistency depends on an assumption that DM took, or needed, her medication on a daily or otherwise frequent basis, and I am not aware of any such evidence. DM said during her police interview that she took medication, including for diabetes, cholesterol, and her liver, and also antidepressants. I do not consider I can take judicial notice of the frequency with which any such medication would be used. DM might have been expected to point out that she used her medication irregularly or infrequently when she was trying to explain how the medication could have been in the shed if she hadn't put anything in the shed for days or weeks, and her failure to do so could imply that irregular use was not the case. However, I do not see that such an implication, of regular and frequent use, is enough to establish that one of her apparently inconsistent statements must be a lie.

644. The further difficulty for the Crown is that even if an inconsistency between the two statements could be established, this would not establish that either one of the statements is a lie. Unless the claimed lie can be identified, and its falsity demonstrated, it is impossible to take the next step and determine whether the truth would have implicated DM.

645. Furthermore, as far as I can see, only one of the inconsistent statements could, if false, have been identified as an Edwards lie. That is, evidence that in fact DM had moved her medication to the shed on the morning of the fire, or perhaps the night before, might well have implicated her in starting the fire. However, if the false statement was that she kept the medication with her where she slept, then the converse proposition (that she didn't keep it close at hand) does not seem to implicate her at all; to the contrary, it would weaken the challenge to her claim that she had not put anything in the shed for two or three weeks without, as far as I can see, affecting anything except her credibility in general.

646. At least in this case, it does not seem that merely pointing to an apparent inconsistency between two statements is sufficient to suggest an Edwards lie, especially where there is no evidence establishing the particular falsity of either one of the statements (as distinct from asserting an inconsistency between the two).

1. During the execution of the search warrant, DM said that she had put items in the shed over the last three or four months, most recently on the Friday or Saturday before the fire; in the police interview, DM told Constable Yeo that the last time she had put anything in the shed was when she put her tools there, "probably a week ago". DM had, however, maintained the position that items had been put in the shed over a period of several months, and that different items had been put there at different times.
2. I reject the proposition that her mentions of different time frames for different items, although in some cases inconsistent if construed strictly, can be identified as lies. Furthermore, no particular claim could be identified as a lie except by contrasting it with an inconsistent statement which is assumed (rather than proven) to be true.
3. Finally, the moving of goods into the shed at any time is not inconsistent with guilt; it is capable of implicating DM in setting fire to her house, and contributes to the circumstantial case against her. It is true that some of DM's statements, if true, would provide stronger circumstantial evidence against her than others, but I do not see that there is a basis for concluding that any particular statement was a lie told because its inculpatory effect was less than that of other statements.

1. I cannot see any inconsistency between DM's claim that she probably had bills in the shed from 2005 and the fact that there were also very recent or current bills there. DM said:

probably eighty per cent of it was going to go to charity and the other stuff I had to go through and decide. You know, there was books in there that could have gone to the bin, paperwork that I probably don't need any more but I sort of - I hang on, you know, like, there's probably bills in there from two thousand and five, maybe. You. know?

1. While this may have been intended to convey the impression that the items in the shed were generally old and of no current significance, it could equally have been an example of how much "stuff" she had accumulated and why she needed to use the shed. I do not see that it could be understood as a claim that the only bills in the shed dated from 2005. There is no inconsistency, and certainly no identifiable lie.

652. In the police interview, there was the following exchange between DM and Constable Yeo:

Q395. Now, you're telling me that methylated spirits was left somewhere around the TV unit. I can tell you that the seat of fire, where the fire started, is near the TV unit. I can also tell you, given the time frame, there are only three people that could have started that fire. You, [O] and [E]. Right?

Q396. I want you to have a really good, hard think.

Q397. Just have a think. I'm going to give you a moment because right here, right now is the time to [sic] which you can tell me the truth. This is your opportunity to tell me the truth if you want to.

1. No, I'm being straight with you. Okay, yeah, I would have been at the TV unit turning the TV off. You know, but - - -

Q398. You told your daughter and you told me just before that you had left the TV on and that you told your daughter that the flicker that she saw through the curtains could have been the TV.

1. Well, you know, in case we hadn't turned it off. You know, that's the thing. I don't know. Some - that's - it's another thing. You know, there have been times where I've left the TV on.

653. I accept the Crown submission that DM appears to be being evasive in this exchange. I do not accept that either of DM's statements has been shown to be a lie, or that if either one of them could be shown to be a lie, the truth would have implicated DM in the fire. None of the hypotheses for how the fire started require the TV to have been on or to have been off; the issue is relevant only to the significance of her comment to O that what O saw was just the TV. The only thing that can be taken from DM's arguably inconsistent statements is that her credibility, or at least her reliability, may be suspect.

654. As already noted at [76] to [78] above, DM at different points, and in talking to different people, suggested various different times as the time at which she and her daughters left the house. The Crown does not identify any of those statements as a lie, but says only that her "inconsistent answers regarding the time she left are evidence that she was attempting to avoid implication in the knowledge of her guilt".

655. In my view, the different answers establish only that DM's comments about when she left the house may be generally unreliable. I note in this context that there is no reason to believe that expert evidence about the likely duration of the fire to the effect given during the trial was available to DM on the day of the fire or in the few days thereafter when she was giving the various accounts of when the family left the house. Without having established when DM actually left the house, and that she left at a time that, she realised, would have implicated her in the fire, I cannot find that this unreliability reflects an attempt to avoid implicating herself so as to constitute the false claims (if any, and whichever they were) as Edwards lies.

656. None of DM's claims mentioned by the Crown have been shown to be Edwards lies.

657. The Crown submitted that DM had accelerants in her possession at the time of the fire, and that the circumstances of the possession are suspicious. The relevant accelerants were "Jiffy" brand firelighters, and multiple bottles of methylated spirits.

658. There was evidence of a packet of Jiffy firelighters being found in the laundry sink after the fire, approximately one-third used, as well as a bottle of methylated spirits described as about two-thirds full, and an open fire blanket with two scorch marks in the middle (at [151], [157] and [376] above).

659. The Crown says "[c]ommon sense dictates that this is an unusual place to store firelighters." I am not convinced that common sense has anything to say about whether this is an unusual or even inappropriate place to store firelighters; it may be that, if firelighters are to be stored inside the house at all, the laundry tub is as sensible a place as any other, given the ready availability of water in the event of any accidental ignition of the firelighters and the relative absence of "soft furnishings" (except perhaps for fabric items awaiting washing).

(a) that the presence of these several items rendered the sink unusable for its intended purpose; and

(b) that it can be inferred:

• (i) that DM had been experimenting with lighting fires; or
• (ii) at the very least, that DM had no legitimate purpose for using these items together (although without identifying what might have been a legitimate purpose).

661. I do not see that there is anything suspicious as such about having items in a laundry sink that render the sink unusable for its intended purpose, especially in the absence of any evidence about how long the items had been in the sink. First, it is by no means clear to me what are the limits of the "intended purposes" of a laundry sink these days; I suspect that, in many homes, they are unlikely to be regularly used for hand-washing, or for storage of water for recycling in the washing machine, although they may still come in handy as a place in which to empty a bucket of liquid that has been used for mopping. Secondly, it is easy to imagine circumstances in which, especially in a small house, a laundry sink not immediately required for other purposes might be used as a temporary receptacle for other items. Thirdly, I am not convinced that the co-location of the three items in the laundry tub as such established that they had been used together rather than simply stored together.

1. On the other hand, I accept that one available inference from the presence of the three items together was that DM had been experimenting with lighting fires. DM told police that she used the firelighters when she barbecued, but did not explain the bottle of methylated spirits and the fire blanket. I accept that there is no evidence that DM did have a legitimate purpose for using the items together, but I reject the implicit submission (which might suggest an attempt to reverse the onus of proof) that this of itself permits an inference that she had no such legitimate purpose.
2. Nevertheless, the presence of the two kinds of accelerants and the fire blanket in DM's house is directly relevant evidence in the Crown's circumstantial case.

1. The evidence is that there was a lot of methylated spirits in DM's house in the period leading up to the fire (at [151] to [156] and [171] to [173] above).
2. One of the bottles found in the recycling bin (the Digger's brand bottle) contained liquid which, when analysed, could have indicated the presence of petrol (at [[366 (a) first, that the possible presence of petrol in one of the methylated spirits bottles from the bin may be irrelevant; and

(b) secondly, that the apparent absence of any opportunity for DM to put the methylated spirits bottles in the bin after leaving the house with her daughters may be irrelevant.

678. The Crown also says that DM's explanation for the presence of all the empty bottles of methylated spirits, being that she used the methylated spirits for cleaning, was "far-fetched and fanciful". It is true that there is little evidence that any significant quantity of methylated spirits was used for cleaning during the weekend before the fire, but there is evidence that methylated spirits evaporates rapidly and any methylated spirits that was used in weekend cleaning could have evaporated before DM's children came home. In any case, the prosecutor's opinions about methylated spirits' use as a cleaning agent and the quantities in which it would be so used, dressed up as dictated by "common sense", do not establish that the methylated spirits from the empty bottles found in the bin could only have been used as an accelerant and could only have been used on the day of the fire.

679. Defence counsel submitted that the Crown also identified the purchase of methylated spirits in the few days before the fire as evidence of premeditation, and that:

This is not possible if two bottles were disposed of the night before. If the bottles had been used as accelerant it is more likely than not that the accused would have attempted to conceal the bottles not place them in the recycling bin to be found by the fire brigade.

680. As I understand it, counsel was suggesting that methylated spirits bottles that had been put into the recycling bin the night before the fire could not have been used to start the fire, while any bottles that were used to start the fire would have been concealed rather than put into the recycling bin. The first part of this submission is probably correct (certainly there was no suggestion that methylated spirits had been decanted from the bottles found in the bin into another container). However, it does not address the possibility that bottles that had been put into the bin the night before the fire were bottles that had been used during weekend cleaning rather than used to start the fire, and it overlooks the possibility, as noted above, that any bottles that had been used to start the fire could have been abandoned at that point and consumed by the fire.

681. I do not consider that the evidence taken as a whole establishes more than the proposition that DM had a significant quantity of methylated spirits in the house in the days before the fire, that she had obtained at least three litres of methylated spirits in the two days before the fire, including two litres after she seemed to have finished her weekend cleaning, and that most of that methylated spirits had been used or otherwise disposed of by the time the fire investigators began their work.

682. I note in this context defence counsel's further submission that there was some evidence of a drum of petrol in the shed (at [158]), and that:

Presumably this would have been a far superior accelerant to use to start a fire. Constable Yeo would not say whether she saw a drum of petrol in the shed.

683. This submission suffers from the same logical weakness as that discussed at [712] below.

Forensic evidence about the cause of the fire

684. The Crown makes submissions about the contents of the shed under the headings:

8. Causation of the fire: forensic evidence

A. ACT Fire & Rescue Report and oral evidence given by Officers Cahill and Scott

(v) Contents of shed

685. The submissions are that the discovery of items in the shed, in particular the apparently new tarpaulin, and the evidence given by Officer Cahill and Mr Scott about their interpretation of that discovery, support the proposition that DM had planned the fire.

686. The location of items in the shed is significant as circumstantial evidence in relation to DM's involvement in the fire. However, I cannot see that evidence about those items carries any more weight by being repeated in relation to the causes of the fire and identified as forensic evidence; whether or not it is properly described as forensic evidence of the causes of the fire at all, that evidence does not in my view become any more significant by reason of the interpretation placed on it by Officer Cahill and Mr Scott. Indeed, for reasons set out at [216] to [218] above, it may reduce the weight to be given to the evidence given by Officer Cahill and Mr Scott about what can be learned from the fire scene itself.

1. Many of defence counsel's closing submissions have already been canvassed in discussion of relevant evidence. The remainder are dealt with below.

688. DM's children were not called to give evidence, but the police statement made by her adult son, and the police records of conversations with her two daughters, O and E, then aged fourteen and six respectively, as well as proofing notes made by the Crown in conversations with the two girls shortly before the trial, were admitted by consent.

689. Defence counsel submitted that DM's two daughters were "eye-witnesses" to the events leading up to the fire, that they were eye-witnesses who had deliberately not been called by the Crown, and that they had not been called by the Crown because the Crown knew that their evidence would not support its case.

690. There are several problems with these submissions.

691. For obvious reasons, counsel does not suggest that the two girls were "eye-witnesses" in the sense that they did see DM either start a fire in the house or put the empty methylated spirits bottles in the recycling bin after she came out the front door and before the family walked towards the bus stop.

1. The Crown case was not wholly circumstantial. The Crown tendered the records of conversation of two eye witnesses [O] and [E]. That evidence was not challenged. The evidence of both [O] and [E] was largely corroborative of the evidence of the accused. The fatal flaw in the Crown case is the failure by the Crown to properly investigate and prove through the two eye witnesses the Crown's contention that the accused purchased litres and litres of "methylated spirits which she mixed with petrol which she used as an accelerant and these bottles were the source of the fire."
2. There were two eye witnesses present when the accused apparently engaged in conduct asserted by the Crown i.e. using methylated spirits as an accelerant. Both witnesses were present in the house in the evening and on the morning immediately before the fire started. Both were interviewed by police. Neither witness was asked whether either of them saw the accused distributing (or pouring) methylated spirits throughout the house at any time prior to leaving for the bus including whether the accused was seen distributing (or pouring) methylated spirits over furniture in the lounge room, in front of the heater, near the TV and in the entrance hallway immediately in front of the front door as alleged by Firemen Andrew Cahill. Neither witness said she smelt any methylated spirits (or chemicals or smoke). No evidence was led by the Crown that the accused mixed petrol with methylated spirits. Ms Bowen was unable to explain the petrol peaks she found when she analysed samples provided to her (see below). The inescapable inference to be drawn from the failure of the Crown to ask key eye witnesses specifically whether either of them saw the accused distribute methylated spirits around the house shortly before leaving the house for the bus is that neither witness would have assisted the Crown case (i.e. each would have denied seeing the accused engage in that conduct).
3. Further neither witness was asked whether either of them saw the accused place empty methylated spirit bottles (or indeed any methylated spirits bottle recently used to distribute methylated spirits throughout the house) into the green recycling bin with the yellow lid situated at the front of the house where those bottles were apparently found later that day on 16th July 2012 by Forensic Investigator Trebilcock. No questions were asked of either witness whether either of them had seen the accused place the empty bottles in the bin at the front of the house prior to all three of them making their way to the bus stop. [O] observed the accused's conduct immediately before she exited the premises on 16th July 2012. [O] gave evidence that she saw the accused set the VCR in the TV area of the lounge room.
4. [O] was standing at the door when the accused left the house. No mention was made of any methylated spirits bottles being in the possession of the accused. [O] was clearly in a position to see the accused pour methylated spirits in the entrance hallway immediately in front of the front door (as alleged by Andrew Cahill) light the accelerant on the hallway floor and then place the three empty methylated spirit [sic] bottles (or indeed any methylated spirits bottle) into the green recycling bin with the yellow lid which was situated at the front of the house. [O] saw no such conduct. [E] left the premises with [O] and the accused. [E] did not report that she saw her mother pour accelerant in the hallway, light the accelerant on the hallway and then dispose of the three empty methylated spirits bottles into the green recycling bin with the yellow lid at the front of the house immediately prior to them leaving for the bus stop. Significantly the Crown's theory regarding the accused's conduct was never put to [O], [E] or the accused. (emphasis in original.)

693. Counsel in oral submissions also pointed to O's comments in her recorded conversation with police that after she had told her mother she'd seen something like flames through the front window, she and her mother both looked back, but she saw nothing.[100]

694. I accept counsel's submission that the evidence of O and E was "largely corroborative of" DM's evidence (at [692] above): that is, the information given by the girls is largely consistent with assertions about particular topics made by DM.

695. However, counsel seeks to extract more from the evidence of the girls than it can sustain. Specifically, counsel says, because neither of the two girls volunteered evidence of DM distributing methylated spirits in the lounge room or the hallway, and neither of them was asked about those matters, the "inescapable inference" is that the Crown can be assumed to have known that each of them "would have denied seeing [DM] engage in that conduct".

696. Counsel seems to be giving a very particular significance to the concept of an "eye-witness", to the effect that anyone who was present at and observing a particular event (and therefore legitimately referred to as an eye-witness) must necessarily have seen all that there was to see. It needs only a moment's consideration to realise that this proposition is unsustainable. It is the routine experience of the courts that multiple eye-witnesses to an event will report having seen different aspects of the event or different versions of the same aspect.

697. Certainly, the failure of either girl to mention anything directly probative of the Crown case (such as seeing their mother pouring methylated spirits in the lounge room or hallway) is a factor to be taken into account in considering the circumstantial case, but it is not determinative.

698. Furthermore, defence counsel's reliance on the failure of the Crown to call the two girls to give evidence as establishing a fatal flaw in the Crown case is misplaced.

699. First, contrary to the implication of counsel's submission, the Crown's failure to call the two girls did not reflect a forensic decision by the Crown. Rather, the Crown's original intention was apparently to call DM's two older children, B and O, whose names were on the witness list provided to me; O was in fact waiting in the remote witness room on the first day of the trial.

700. In the previous week, however, questions had been raised about whether either of the children should, under s 18 of the Evidence Act, be advised of their right to object to giving evidence against their mother; the Legal Aid Office had been asked to arrange separate representation for the two children to advise them in relation to s 18, and I understand that such arrangements had been made.

701. Before O was called, however, defence counsel indicated that she wished to take further instructions from DM about whether the children needed to give evidence. Shortly afterwards, she advised that:

MS TONKIN: Your Honour, thank you for the time. [B's] statement will be tendered by consent and there's a short proof of evidence from [O] that also will be tendered by consent and the children won't be required.

702. That is, the Crown's failure to call DM's children, and O in particular, appears to have resulted from DM's instructions that the Crown's tender of B's police statement and O's proofing notes would not be opposed, and that they would not be required for cross-examination.

703. Secondly, both girls were asked, in their conversations with police the records of which were also tendered, what their mother was doing before they left the house. O said that her mother had been at the TV, "pressing buttons on the VCR". E said that her mother was watching TV and getting dressed. Asked whether her mother was doing anything else, she said "no".[101]

704. However, neither the records of conversation with the two girls, nor the Crown's proofing notes, addressed the question that defence counsel now says should have been asked of the two girls, in effect, whether they had seen their mother start a fire in the house before leaving it.

705. Defence counsel in closing submissions said that it would have been proper for police or prosecutors to have asked DM's daughters, in so many words: "Did you see Mum pour methylated spirits? Did you see Mum put the methylated spirits in the bin, the empty bottles in the bin?".

706. It seems to me that there were very good reasons for neither the police nor the prosecutors to have asked any such questions. The relative suggestibility of children means that any evidence obtained through such leading questions would have been susceptible to serious challenge. I have no doubt that the defence would have pursued such a challenge, and properly so. Furthermore, such an approach by the Crown would have risked the exclusion not merely of the evidence obtained thereby but possibly of all the children's evidence, especially since that approach might also have been seen to be contrary to, at least, the spirit of s 18 of the Evidence Act.

707. In discussion of this submission, the prosecutor said that she understood it was police policy not to ask "closed" or leading questions of child witnesses; she offered to call evidence to this effect but that proposal was objected to and was not pursued.

708. The failure of police and the prosecutors (as indicated by the contents of the records of police conversations with the children and the proofing notes) to ask DM's children whether they had seen their mother start a fire in the house does not therefore establish that the Crown knew that their answers would be unhelpful. If anything, it establishes that neither the police nor the prosecutors knew what answers they would have got to such questions. In contrast, if the children had given evidence, they could have been cross-examined, on behalf of DM, about what exactly they had or had not seen. DM, unlike the police or prosecutors, presumably did know what they could or could not have seen (although not necessarily how they would answer any particular question).

709. Defence counsel also contrasted the police questioning of O about the items in the shed with the Crown's failure to ask her, in effect, whether she had seen her mother in the process of setting the fire. I cannot see how the questions about the shed and its contents could establish that police deliberately refrained from asking O whether she saw her mother setting the fire because they knew they would get an answer unhelpful to a prosecution of DM.

1. Counsel's criticism that the Crown's theory was never put to DM also has no substance. Constable Yeo put to DM several times in robust terms that she had been responsible for starting the fire, specifying most although not all the significant elements of the Crown case as put at trial. She put to DM:
   • (a) that the speed of the fire indicated an accelerant was used, and she believed it was methylated spirits;
   • (b) that DM's daughters had said that DM was at the TV unit before leaving the house and was the last person to leave;
   • (c) that the fire started near the TV unit;
   • (d) that the only three people who could have started the fire were DM and her two daughters;
   • (e) that DM had insurance cover for $50,000 and had removed personal items of value from the house;
   • (f) that DM had bought methylated spirits, the suspected accelerant;
   • (g) that despite DM's daughter telling her there was a fire in the house, and despite the smoke, she had neither called 000 nor appeared concerned about her house;
   • (h) that she (Constable Yeo) believed DM had started the fire.
2. Since DM did not give evidence, she was not able to be cross-examined about the specifics of the Crown theory.

Presence of Jiffy firelighters and methylated spirits in laundry sink

1. Having quoted DM's suggestion that she might have had more methylated spirits than she had bought in the course of the weekend, defence counsel submitted that the presence of Jiffy firelighters and methylated spirits in the laundry sink, which could have, but had apparently not, been used to start the fire, suggested that DM had not started the fire. This submission is devoid of logic (compare "X wasn't the murderer, because one of his guns wasn't used in the murder").

713. Defence counsel relied heavily on the number of people who initially considered the fire not to be suspicious, mentioning in support of this claim:

(a) the Fire Brigade incident log,[102] which showed that the incident had been closed at various points throughout the afternoon (at [258] above);

(b) the initial release of the premises to ACT Housing during the afternoon of the fire (at [259] above);

(c) the invitation issued to Ms Trebilcock, while the fire was not considered suspicious, to attend the scene as an opportunity to broaden her experience (this evidence was given in a voir dire to deal with an objection to certain evidence, and is set out at [15] of my reasons for that decision (R v DM [2014] ACTSC 377));

(d) the view of Commander Talbot as apparently recorded by Constable Edwards (at [118] above);

(e) the insurance investigator's report indicating that he did not believe DM deliberately set the fire (at [200] above);

(f) the view of the loss adjuster engaged by the insurance company, who in conversation with DM had concluded that since she denied any wrong-doing, the claim could remain on foot (at [203] above).

714. Many of defence counsel's closing submissions are useful reminders of the need to assess all the evidence carefully, but this is not one of them. Little or nothing can be taken from the fact that the fire was not initially considered suspicious. The fact that a person forms a preliminary view based on incomplete information does not support the accuracy of that preliminary view irrespective of the impact of information that becomes available subsequently.

715. Nor is it a significant proposition that after suspicion developed about the cause of the fire, police and members of the Fire Bridge "engaged in evidence gathering to support the hypothesis that the accused had deliberately lit the fire". This was surely part of their job.

716. It is true that investigators are regularly criticised for, or counselled against, concentrating too early on one hypothesis and abandoning other lines of inquiry, and I have commented elsewhere (at [514] above) on aspects of the evidence that may hint at something of the sort in this case. On the other hand, given the alternative hypothesis relied on by the defence (that the fire began by accident), it is not clear that there was anything in the investigators' approach that amounted to closing off inquiries that might have produced evidence supportive of that alternative hypothesis, or what different evidence might have been gathered if the investigators had actively pursued that alternative hypothesis as well. Even less clear is how the investigators could have pursued evidence for the other "alternative hypothesis", that the cause of the fire was undetermined.

717. Defence counsel submitted that DM's behaviour, as described by her children and by witnesses to the aftermath of the fire, was consistent with innocence and, as to her behaviour after the fire, consistent with the behaviour of a person who had suddenly lost all her belongings and her home.

718. Counsel also submitted that DM's initial distress was "not the reaction of a person who had started a fire", but I reject the proposition that distress is reserved to people who have not been involved in starting a fire. Distress might well be the genuine reaction of a person who has started a fire accidentally, but it might also be the ostensible reaction of a person who has started a fire deliberately but seeks to conceal that fact.

719. I accept counsel's submission that DM was genuinely distressed over her missing dog (at [190] and [192] above), but not that this has any particular significance (at [613] to [615] above).

720. Defence counsel submitted that Officer Grech gave evidence that "he formed the view that the accused was in shock when she first attended the scene". Officer Grech's evidence (at [76] above) was that he had explained what to his mind was an unlikely assessment of when the family had left the house by assuming that DM "must be in shock". I do not interpret Officer Grech's evidence, or the contents of his report, as an assessment of DM's distress or of her physical condition.

721. It is true that, as submitted by defence counsel, DM was not required to participate in either of the two police interviews, during the execution of the search warrant and later on. The fact that she did so is a relevant factor in the circumstantial case, but no more than that. Counsel submitted that DM was "open and forthcoming" in providing information to police - I have commented on her presentation during the interviews at [46] to [48] above.

722. Finally, I remind myself that, as pointed out in Hillier (cited at [22] above), it is not appropriate to assess a circumstantial case by considering each aspect of the case separately to determine whether there might be an explanation for that aspect that is consistent with the accused's innocence - rather, it is necessary to consider the whole case.

723. I am satisfied that it is a rational inference from the evidence that I have accepted, and the conclusions I have drawn from that evidence, that the fire that caused substantial damage to the house at 36 Mackay Crescent on 16 July 2012 was started by DM, that it was intentionally started by her, and that in starting it she intended to cause damage to the house and its contents.

724. For the reasons summarised at [587] above, I reject the defence hypothesis, as explained at [571] above, that the fire could have started by accident. As explained at [482] above, I have also rejected as an alternative hypothesis the proposition that the cause of the fire is undetermined.

725. No other rational hypothesis to explain the fire was suggested, and none has suggested itself to me.

726. Accordingly, I am satisfied beyond reasonable doubt that DM intentionally started the fire that damaged her house and that she did so intending to damage at least the contents of the house.

727. The offence of arson arises under s 404(1) of the Criminal Code 2002 (ACT). The offence of dishonestly obtaining property by deception arises under s 326 of the Criminal Code, and s 44 of the Criminal Code, in conjunction with s 326, creates the attempt offence. Some terms used in those provisions are defined elsewhere in the Criminal Code. The provisions concerned are relevantly as follows:

(1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.

(2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.

(3) The question whether conduct is more than merely preparatory is a question of fact.

(4) A person may be found guilty of attempting to commit an offence even though -

(a) it was impossible to commit the offence attempted; or

(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

belongs, in relation to property - see section 301.

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

...

Note 2 In a prosecution, dishonesty is a matter for the trier of fact (see s 302).

(1) Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it ....

deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or law, and includes -

(a) a deception about the intention of the person using the deception or anyone else; and

A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note For alternative verdict provisions applying to obtaining property by deception, see s 371 and s 372.

(a) causes damage to a building or vehicle by fire or explosive; and

(b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.

(b) any structure (whether or not moveable) that is used, designed or adapted for residential purposes.

vehicle means motor vehicle, motorised vessel or aircraft.

728. Establishing the offence of arson in this case requires that the following matters are proved beyond reasonable doubt:

(a) that DM engaged in conduct;

(b) that she intended to engage in the conduct;

(c) that her conduct caused damage to a building by fire; and

(d) that she intended to cause, or was reckless about causing, such damage.

Counts 2 and 3 - Obtaining, or attempting to obtain, property by deception

729. The elements of the offence of obtaining property by deception in this case are:

(a) that DM, by deception consisting of words or conduct, obtained property (which includes money) from someone else to whom the property belonged: the property identified is the $2,000 emergency payment;

(b) that the deception was intentionally or recklessly engaged in (Criminal Code, s 325, and Sayed v The Queen [2012] 220 A Crim R 236 at [41] and [42]);

(c) that she intended to permanently deprive the other person of the property;

(d) that she obtained the property dishonestly - that is, she acted dishonestly according to the standards of ordinary people and she knew that she was acting dishonestly according to the standards of ordinary people; and

(e) that there was a causal link between DM's deception and her obtaining of the property.

730. The offence of attempting to obtain property by deception would be constituted by DM carrying out conduct that was more than merely preparatory to the commission of an offence of obtaining property by deception as described at [729] above.

731. The conduct by DM that is said to constitute the attempt offence is in general terms the same conduct relied on in relation to the offence of obtaining property, except that the latter offence would be completed by DM's receipt of the $2,000 emergency payment. An offence of obtaining property by deception could not be made out in relation to the full insurance payout, because DM has never received that money. That is, her conduct could only have amounted to an attempt to obtain the larger amount of money.

732. The key to these two offences is identifying the deception alleged against DM. That of course depends first on a finding that DM was responsible for the fire.

733. The Crown relied on the explanation of deception given by Buckley J in In re London and Globe Finance Corporation, Limited (1903) 1 Ch 728 at 732-733, as follows:

To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.

734. There is no allegation that DM's deception consisted of any explicitly untrue assertion made to the insurance company. Her notification of the house fire and of a claim under the insurance policy were truthful as far as they went. For that notification to have been deceptive, it is necessary to treat it as including:

(a) an implied representation that her claim was not excluded by the provision in the Product Disclosure Statement that excluded cover for loss or damage "caused by any criminal or illegal act or omission, any attempted criminal or illegal act or omission, or any act or omission occurring during the course of any criminal or illegal act or omission"; or

(b) more specifically, an implied representation that she had not been criminally responsible for the house fire.

735. No submissions were made to the effect that the "falsehood" referred to by Buckley J had to be an explicit statement made by the accused or, alternatively, that it did not have to be explicit and could be implicit in an accused's other statements or conduct.

736. There may be cases in which a deception must be explicitly conveyed to another person, but failing any authority for the proposition that such is always a requirement of the offence concerned, and noting that the definition of "deception" includes a deception "by words or other conduct" (s 325 of the Criminal Code, quoted at [727] above), I am satisfied that the falsehood that induces a particular state of mind in another person may in appropriate circumstances be conveyed by implication rather than by express words.

737. If it is found that DM was criminally responsible for the fire and that her contact with the insurance company included those implied assertions, then, in my view, it could be concluded:

(a) that at least the representation that she was not criminally responsible for the fire was implied in her relevant dealings with the insurance company, and that that representation was at least reckless but probably intentional;

(b) that her conduct was dishonest according to the standards of ordinary people; and

(c) that she knew it was dishonest according to those standards.

738. I note at this point that although there was evidence of the relevant contents of the insurance policy (at [195] above), and evidence suggesting that DM had received a copy of that policy (at [126(b)] above), there was no direct evidence that she was aware of the clause excluding cover for loss or damage caused by criminal activity. However, it is in my view reasonable to conclude that DM was aware that it was dishonest according to the standards of ordinary people to intentionally destroy property covered by an insurance policy and then seek to claim under the policy in respect of that destruction.

739. I reject defence counsel's submissions that DM's offer to withdraw her insurance claim is inconsistent with an intention to permanently deprive. As long as the intention to permanently deprive (that is, to retain the money for her own use and without any intention of repaying it) was present when the claim was made, the offence cannot in my view be avoided by a subsequent offer by an accused to repay, or in this case to withdraw the claim after she became aware that she was suspected of conduct that would exclude her claim (and see [743] below).

740. I have concluded (at [726] above) that DM started the fire that damaged the house at 36 Mackay Crescent, and that she did so intentionally by starting at least two fires in the house. I am further satisfied beyond reasonable doubt, having regard to the evidence, that the effect of the fires was to cause substantial damage to the house and its contents, and that DM intended to cause damage to the house contents, and either intended to damage the house or was reckless about causing such damage.

Count 2 - Attempting to obtain property by deception

(a) that DM had a current home contents insurance policy with Budget Insurance at the time of the fire;

(b) that she was aware both of the existence of the policy and the value of the policy, given:

• (i) the presence in the shed of the letter from Budget Direct notifying DM of the renewal of the policy in February 2012 (at [126(b)] above);
• (ii) her comment to Constable Yeo that she paid about $40 per month for her "household insurance" (at [176] above); and
• (iii) her comment during the execution of the search warrant that the insurance policy had originally provided cover of $50,000 (at [208(d)] above (I do not consider that it matters whether DM knew exactly the amount of cover provided after the policy was renewed, or only the original amount);

(c) that under the policy she was not entitled to have a claim paid out in respect of a fire for which she was criminally responsible (at [195] above); having regard to my conclusion in relation to the arson charge (at [740] above), I see no need to consider whether an act could be identified as criminal or illegal even if no person could be found criminally responsible for it;

(d) that on the day of the fire and therefore within the period specified in the indictment (at [196] above), DM, by her call to "Trish", initiated a claim on Budget Insurance in respect of the damage caused by that fire, that she intended the claim to be paid, and that she intended to retain the money paid by the insurance company for her own use and not to repay it;

(e) that, having regard to my conclusions about the arson offence, at (c) and [738] above, this involved an intentional deception by DM, in that she sought to induce the insurance company to believe that she was entitled to receive a payment under her insurance policy, despite her disentitling conduct; and

(f) that in initiating that claim, DM was acting dishonestly according to the standards of ordinary people and knew that she was acting dishonestly accordingly to those standards.

743. The offence of obtaining property by deception could not be made out in relation to the total claim on the policy, because DM received only the emergency payment amounting to an advance on the payment determined under the policy. However, I am satisfied beyond reasonable doubt that the action outlined at [742(d)] above was "more than merely preparatory to" committing the offence of obtaining property by deception. Defence counsel conceded that if the offence was committed it was committed before DM tried to withdraw her claim during police questioning.

744. Accordingly, I find DM guilty of attempting to obtain property dishonesty and by deception from A&G, trading as Budget, with the intention of permanently depriving the company of that property.

745. Count 3 relates to DM's receipt, on 19 July 2012, of $2,000 from Budget Insurance by way of an advance that was payable under her insurance policy and described as an emergency payment.

746. It is undisputed that DM obtained money (the $2,000 emergency payment) from someone else (the insurance company). I am satisfied beyond reasonable doubt, in reliance on her acceptance of that payment (although there was no direct evidence to this effect):

(a) of the matters already found at [742] above;

(b) that the advance, although offered by Joel Brown rather than sought by DM, was offered, paid, and accepted, in connection with the insurance claim that she had made (at [742(d)] above) which I have found involved a deception (at [742(e)] above); and

(c) that DM intended to permanently deprive the insurance company of that money (that is, at the time she received it, she did not intend to return or repay the money); and

(d) that having deliberately started the fire, DM's acceptance (or "obtainment") of that payment was dishonest according to the standards of ordinary people and DM knew that it was dishonest by those standards.

747. I find DM guilty of obtaining property (the $2,000 advance) dishonesty and by deception from A&G, trading as Budget, with the intention of permanently depriving the company of that property.

748. Accordingly, I enter the following verdicts against DM:

(a) Count 1 - Arson: Guilty

(b) Count 2 - Attempting to obtain property by deception: Guilty

(c) Count 3 - Obtaining property by deception: Guilty.

I certify that the preceding seven hundred and forty-eight [748] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

A police statement made on 18 January 2013 by Satnam Singh.

A police statement made on 18 July 2012 by Kamaljeet Kaur.

Eleven CCTV stills of '5 Star Supermarket' on 14 July 2012.

Journal reprint and EFTPOS receipt from Sunshine Supermarket dated 14 July 2012.

A police statement made on 20 October 2012 by Fotis Sgouros, an employee of Supabarn in Wanniassa.

Seven CCTV stills of Supabarn Wanniassa on 15 July 2012.

Receipt printout from Supabarn Wanniassa dated 15 July 2012.

Transcript of a taped record of conversation between Constable Yeo and O (then aged 14) conducted on 17 July 2012 in the presence of O's father.

Transcript of a taped record of conversation between Constable Kate Bamford and E (then aged six) conducted on 18 July 2012 in the presence of E's father.

A police statement made by B, DM's son, on 25 July 2012.

A police statement made by Kathleen Harman on 17 July 2012.

A police statement made by Veronica Lovell on 25 August 2012.

A police statement made on 8 January 2013 by Constable Emma Mills.

A police statement made on 28 January 2013 by Constable Kris Thomson.

A police statement made on 14 December 2012 by Constable Scott Vandervalk.

A police statement made on 30 August 2012 by Timothy Graham, a gas appliance worker who had been working on the roof of a house in Kambah on 16 July 2012.

A police statement made on 31 December 2012 by Sergeant Peter Murphy of the AFP.

Fire Brigade incident log for the fire. It records the fire being notified to the Fire Brigade at 12:39 on 16 July 2012.

A police statement made by Senior Constable Travis Lutz on 16 January 2013.

A police statement made by Constable Paul Edwards on 9 January 2013.

A police statement made by Detective Senior Constable Tristan Thexton on 23 January 2013.

A police statement made by Evan Roeterdink, an AFP Crime Scene Investigator on 1 January 2013.

A police statement made on 14 December 2012 by Lee Sloan, an AFP Crime Scene Investigator_._

A police statement made on 18 December 2012 by Ashley Freeman, an AFP Crime Scene Investigator_._

Property seizure records relating to items seized from 36 Mackay Crescent.

A police statement made on 7 January 2013 by Andrew Cross, an AFP fingerprint expert, attaching a report of his examination of fingerprints found on the methylated spirits bottles seized from 36 Mackay Crescent.

A police statement made on 18 January 2013 by Jennifer Stone, an AFP forensic biologist, who attaches a report on her examination of DNA found on the three methylated spirits bottles seized from 36 Mackay Crescent.

A police statement made on 31 December 2012 by Detective Senior Constable Matthew Challenger.

An undated transcript of a record of conversation between DM and a person identified as Trish from the insurance company Budget.

A police statement made on 10 January 2013 by Constable Mark Andrew Treloar.

CDs containing recordings of a total of six phone calls between DM and Joel Brown of the insurance company Budget.

A statement in relation to her insurance claim received by Bruce Bunyan from DM.

Two photographs of the outside of DM's house after the fire.

Two photographs of the gas heater and the ironing board, one taken inside the lounge room and one taken from outside the house.

Two photographs of the electrical parts inside the gas heater after the fire.

Andrew Cahill's ACT Fire and Rescue Investigation report.

Andrew Cahill's Diploma of Public Safety dated 17 June 2010.

Adam Scott's Certificate IV in Public Safety (Firefighting Supervision) dated 30 November 2010.

One Google map annotated by Constable Melanie Yeo and one Google satellite photo.

Weather report from the Bureau of Meteorology (dated 17 October 2012, presumably relating to 16 July 2012).

Search warrant issued in the course of the investigations.

A bundle of documents relating to the insurance claim and to DM's financial situation more generally.

Transcripts of two phone calls made to ACT Fire and Rescue on 16 July 2012.

A bundle of documents relating to DM's tenancy with ACT Housing.

CCTV footage showing DM and her children on an ACTION bus.

An audio recording and transcript of the execution of the search warrant on 17 July 1012.

A map drawn by DM during the execution of the search warrant on 17 July 2012.

Search warrant issued in the course of the investigations.

An audio recording and transcript of DM's police interview on 19 July 2012.

An article by Tony Cafe originally published in Firepoint, September 1996.

Various photographs of the property at 36 Mackay Crescent (including of the front door, the house on the block and of the bins, side fence and driveway).

A "fact sheet" published in relation to Digger's brand methylated spirits.

A Fire Brigade incident log detailing the response to the fire on 16 July 2012.

A crime scene log detailing the attendance of AFP investigators in the aftermath of the fire.

Report dated 9 December 2013 provided by Mr Cafe (admitted only in part).

Report dated 22 April 2014 provided by Mr Cafe (admitted only in part).

Agreed facts about explosive limits of methylated spirits.

2. Joel Brown, claims consultant in the Home and Contents Department for Auto and General Insurance

3. Mark Murphy, area manager of Cerno Loss Adjusting (in July 2012)

4. Bruce Bunyan, insurance investigator who investigated the factual circumstances surrounding DM's insurance claim (but not the cause or origin of the fire)

5. Paul Grech, Station Officer, ACT Fire and Rescue Service

6. Brian Talbot, Commander, ACT Fire and Rescue Service

7. Peter O'Neill, Senior Electrical Inspector, Environmental and Sustainability Development

8. Andrew Cahill, Station Officer, ACT Fire and Rescue Service

9. Adam Scott, Senior Firefighter, ACT Fire and Rescue Service

10. Ro-Anna Trebilcock, AFP Crime Scene Investigator

C.1: Plan of house prepared by Fire Brigade officers (not to scale).

The lounge room is in the north-east corner of the house.

C.2: The lounge room, viewed from the north-east (Exhibit O, photograph 18)

The photograph shows the south-west corner of the room, and the gas heater (beside the remains of the ironing board). Marker 2 (partly obscured) is located between markers 1 and 3.

C.3: The gas heater in the lounge room [Exhibit O, photograph 14]

C.4: The lounge room, viewed from the south-east (Exhibit O, photograph 38)

The gas heater was attached to the wall at the black area beyond the Gyprock sheet and the white panel. The curved red pipe rising from floor-level on the far side of the black area is the mains gas connection.

C.5: The front screen door [Exhibit Z, photograph 19]

C.6: The front hall, looking in from the front door

The grey areas on the floor are water from the fire hoses. To the right is the rectangular orange area on the floor apparently protected from the fire by a shelving unit located on that area.

At the top right is the board, or door, that was found on the floor of the hallway, and that had been burned on both sides along two-thirds of its length.

C.7: The front hall, looking towards the front door (Exhibit 1)

The orange area on the floor seen on the bottom left of photograph C.6 is in this photograph covered by what Mr Robinson identified as the masonite board.

C.8: Officer Cahill holding up the masonite board (Exhibit AA)

C.9: A chest of drawers in one of the bedrooms (Exhibit Z, photograph 60)

C.10: A wardrobe and other furniture in one of the bedrooms (Exhibit Z, photograph 54)