R v Karlsson [2026] NSWDC 75 | Case summary

R v Karlsson [2026] NSWDC 75 | Case summary | Zoe

The accused Trevor Karlsson was originally charged on 17 July 2022 with various offences relating to a housefire and a vehicle fire in the early hours of that morning in Wallagoot, an area of the New South Wales Sapphire Coast close to Bega, predominantly comprising National Park but including an area containing a comparatively small number of houses.
Count 1 alleged that the accused intentionally destroyed a Subaru Outback belonging to Kelly Shiels by fire on 17 July 2022, contrary to the provisions of s 195(1)(b) of the Crimes Act 1900 (NSW).
Count 2 alleged that the accused, on the same date, intentionally destroyed a dwelling house at Ferntree Lane in Wallagoot with the intention of endangering the life of Kelly Shiels, contrary to s 198 of the Crimes Act 1900 (NSW).
There is a further related offence pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) alleging an assault occasioning actual bodily harm to Kelly Shiels on the same occasion. A plea of Not Guilty had been entered to that charge on 3 May 2023 and evidence in support of that allegation was tendered in the judge-alone trial.
After the accused was initially charged on 17 July 2022, Charge Certification was completed by December 2022, and the accused was committed for trial to the District Court in February 2023. The not insubstantial delay since that time has been occasioned by trial dates having been vacated on three occasions, variously in Bega, Sydney, and Queanbeyan, before the matter proceeded before me in Queanbeyan in September 2025.
The accused then stood trial in the judge-alone trial from 1-3 September 2025 in Queanbeyan when the Crown case closed. The accused had pleaded Not Guilty upon his arraignment with respect to the two counts on the indictment. He was represented in the trial during the presentation of the Crown case by Senior Counsel and an instructing solicitor.
The trial followed a somewhat tortuous and unusual course following the closing of the Crown case on 3 September 2025.
At the close of the Crown case Mr Purnell SC, then acting for the accused, made an application for a directed verdict in relation to Count 2 on the indictment but also raised an issue regarding the accused’s continuing fitness to stand trial.
Once the issue of fitness was raised, pursuant to s 42(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), an inquiry was required to be held to determine whether the accused was fit to stand trial as soon as practicable after the question had been raised.
By agreement with the parties, the issue of fitness had to be determined before any other application, including the application for a directed verdict, could be addressed or the trial continued. On 4 September 2025 the matter was adjourned for one week to 10 September 2025 to allow the parties to make enquiries as to the availability of a psychiatrist who could provide a report on the question of fitness.
On 10 September 2025 the accused filed a Notice of Motion, without the knowledge of his solicitor, seeking a variation of bail and that I recuse myself. The accused in open court also stated an intention to dismiss his representatives. However, given that his representatives had not sought leave to withdraw and the issue of fitness had been raised, I declined to hear directly from him at that time pending a determination of his fitness.
The matter was adjourned to 20 October 2025 to allow the parties to obtain a report as to the accused’s fitness to stand trial from Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist.
On 20 October 2025 there was a further adjournment of one week to 27 October 2025 pending receipt of the report. On the evening of 21 October 2025, the Court received a copy of Dr Allnutt’s report dated 20 October 2025. It is not necessary to go into the detail of that report. It suffices to note that Dr Allnutt concluded that the accused was fit and that as a result of that finding the Crown indicated that it did not intend to obtain any additional report.
On 27 October 2025 a fitness inquiry proceeded and I delivered judgment. I came to a finding, consistent with the psychiatric evidence, that the accused was fit to stand trial.
Upon the determination that the accused was fit to stand trial, the accused’s then legal representatives, Mr Bevan solicitor and Mr Purnell SC, sought leave to withdraw from the proceedings. I granted that leave.
The accused expressed an intention to represent himself for the remainder of the proceedings and the matter was adjourned for one week to allow the accused to consider his position in relation to the recusal application and what was said to be further disclosure by the Crown. In the interim, a flurry of further notices of motion were filed by the accused, the detail of which I do not presently need to go into. The accused filed material in support of those various notices of motion which were also relied on in support of the recusal application.
At the mention on 4 November 2025 the accused indicated that he was proceeding with the recusal application on the papers, being on the Notice of Motion and a supporting affidavit. The Crown indicated their position that the recusal application was opposed and that, in their submission there was no basis for any apprehension of bias. The accused also sought, and was granted, a bail variation relaxing certain conditions.
My decision on the recusal application was reserved, and the matter was adjourned to Tuesday 25 November 2025 for judgment. Subject to my determination of the recusal application, the other outstanding motions were tentatively listed for hearing on 1-2 December 2025.
On 6 November 2025 my Associate received an email from the accused, copying in the Crown’s instructing solicitor, which attached a document entitled “Submission to His Honour Judge R Sutherland”**. That document listed a number of proposed directions, the first of which was that the Notice of Motion for recusal be withdrawn and rescinded. The document stated that:

The document’s second direction proposed that the trial continue before me, subject to resolution of the outstanding Notices of Motion. A third proposed direction appeared to suggest that the proposals were contingent on the Court granting leave to the accused to re-open the Crown case for the purposes of allowing him to further cross-examine the Crown witnesses.
At the listing on 25 November 2025 the application for recusal was noted as withdrawn and not proceeding.
An application for a permanent or temporary stay of proceedings was heard and refused. A request relating to the use of generative AI in the proceedings was discussed. Ultimately the December hearing dates were vacated and the outstanding application for the recall of all Crown witnesses was adjourned to 9 February 2026 in the Queanbeyan sittings, with a timetable for the filing of material.
The February listing was pushed back to accommodate jury trials during the first part of the Queanbeyan sittings. The trial ultimately resumed on 19 February 2026.
Arguments concerning various subpoenas filed by the accused were heard and determined. The application for the recall of all Crown witnesses was then heard. I will not go into the details of those submissions, which effectively alleged intentional sabotage of his case by his former legal representatives, including senior counsel. The accused declined to waive legal professional privilege and in those circumstances, no affidavit or other statement from either senior counsel or his solicitor was provided.
In relation to the application to recall all witnesses, that application was refused with respect to the civilian witnesses and the expert witnesses. Ultimately, however, I allowed the accused to recall the Officer in Charge in order to put a particular proposition to him concerning an allegation of contamination or potential deliberate police sabotage of the crime scene. I note in passing that in the event, those allegations were not put to the recalled Officer in Charge.
The Crown case then again closed, and I made a determination on the directed verdict application, refusing it. The accused did not give evidence. The trial then proceeded to the Crown and Defence closing addresses.
Having set out the necessary context and history of this matter, I now proceed to a summary of the principles on which my decision is based, the evidence at trial, my factual findings, and my ultimate determination of the proceedings.

The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt.
The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before I can convict the accused of any of the separate counts in the indictment. It is vitally important to remind myself that the accused must not be found Guilty if any one of the essential ingredients or elements of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such element or ingredient, even though I might suspect the accused of that matter, the accused is entitled to the benefit of that doubt and I must in such circumstance find him Not Guilty.
The accused is being tried jointly with respect to two separate offences in the indictment. The joinder of these two counts is a matter of convenience. There are two identified circumstances of alleged misconduct in respect of which the trials are being held jointly. The evidence with respect to an individual count must be considered separately notwithstanding that there is a substantial amount of commonality required to be considered with respect to the evidence.
In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused with respect to an individual count beyond reasonable doubt? If the answer is “Yes” the appropriate verdict is Guilty; if the answer is “No” the verdict must be Not Guilty.
Although an accused person is entitled to give or to call evidence in a criminal trial there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute.
The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged. Therefore it follows that the accused is entitled to say nothing and to make the Crown prove his guilt to the high standard which is required.
In the present trial the accused did not give evidence. The decision of the accused not to give evidence cannot be used against him in any way at all in my determination of the verdict. The decision not to give evidence cannot be used as amounting to an admission of guilt. I cannot draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. That fact cannot be used to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way to strengthen the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
In the course of his closing submissions the accused presented a number of arguments and made a number of assertions not necessarily supported by any evidence. I will come to the detail of those comments and assertions later in these Remarks, but note that the accused’s right to make an unsworn statement or give unsworn evidence was abolished pursuant to s 31 of the Criminal Procedure Act 1986 (NSW). However, as I will indicate shortly, the accused did make, and intended to make, a number of admissions. The Crown did not seek to make a supplementary address pursuant to s 160(2).

From the time the accused was interviewed by police to his attendance at hospital, he gave a number of differing explanations as to the presence of burns on his forehead. Before I can use that conduct as indicating a consciousness of guilt, I must be satisfied that he was deliberately misleading police. I direct myself that I must take care with how I approach the task of deciding what significance, if any, this action has. I am entitled to take it into account as evidence of the accused’s guilt, but only if I find two further things. Being able to take it into account as evidence of the accused’s guilt does not, however, suggest that it could prove guilt on its own. It can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.
The first of the further things that must be considered is whether the action relates to some significant circumstance or event connected with the offences charged.
Second, I must find that the reason the accused gave these differing explanations was because the truth, that the burns were caused by proximity to the fire or explosion, would implicate him in the commission of the offences for which he is now on trial.
I must remember, however, that people do not always act rationally and that conduct of this sort, that is giving differing explanations for an injury, may sometimes be explained in other ways. For example, he may simply have been mistaken over the cause of the injury between the two proposed versions; he might have been trying to escape an unjust accusation; he might have been endeavouring to protect some other person; or seeking to avoid a consequence unrelated to the offence.
If I think that the giving of these differing and false explanations for the burns may have been done for some reason other than to avoid being implicated in the commission of the offences for which he is now on trial, then they cannot be used as evidence of his guilt. In that event, I should put the lies to one side and focus my deliberations upon the other evidence in the case.

The first witness was the complainant, Kelly Shiels. She gave evidence that on the property at Ferntree Lane, she resided alone in a standalone cabin towards the top and back of the property. Her husband, Barry Shiels, resided in the main house towards the front of the property, and her brother-in-law, Benjamin Kirby, lived in a granny flat behind the main house.
The cabin was comprised of a small living room including a kitchenette and a small bedroom. The cabin was on a steep slope. The eastern bedroom end of the cabin rested on a rock foundation and concrete slab abutting the higher end of the slope. The western living room end of the cabin opened out via sliding doors onto a veranda overlooking the lower end of the slope. These sliding doors were the only access to the cabin. Wrapping around the northern side of the cabin was a narrow balcony connecting the veranda to a small, paved area outside the bedroom window. From the paved area, up three stone steps, was a woodshed. Ms Shiels was in the practice of parking her Subaru Outback beside that shed. She would then enter the cabin by walking down the steps, along the balcony and around the corner onto the veranda, and in through the sliding doors. On the other side of the cabin was an outdoor shower and a standalone outhouse and water tank. Dense National Park bushland surrounds the block of land.
Photographs of the cabin before and after the fire, and diagrams indicating the layout of the property were tendered at trial.
The accused resided some 200 metres from the main property at Ferntree Lane, on Shumack Place. Ms Shiels recalled having met and spoken with the accused 4-6 times over the years that they had lived in the same area, one of which related to an Apprehended Violence Order between the accused and another neighbour. She also regularly saw him working in the carport of his driveway which she had to pass to exit the cul-de-sac on which they lived.
Ms Shiels also recalled that she often fell asleep watching television in an armchair beside the sliding doors in the main part of the cabin. There were three large windows over the kitchenette through which she could see over the narrow balcony towards her vehicle and the woodshed.
On the evening of 16 July 2022 Ms Shiels described having fallen asleep in the armchair watching television. At some stage in the early hours of 17 July 2022 she awoke. The lights in the cabin were off and the television had gone off, but a full moon provided some visibility. She stood up to go to bed and through the windows saw a figure standing at her car. She described this person, who she initially thought was her husband, engaging in a waving motion around the bonnet of the vehicle. She then saw flames emerging from the front windscreen area of the vehicle. She shouted “Oi” at the person from inside the house and then ran out onto the veranda and around the corner onto the balcony, where she shouted: “You fucking pig”.
She described the person coming towards where she was standing very quickly. She then described the person grabbing her, wrestling her backwards and around the corner. She described getting her right arm free, and grabbing a biscuit lid tin from a trunk by the sliding door, which she then used to hit the person several times on the side of the head. The person knocked her down just in front of the open glass sliding doors. Ms Shiels lay on the ground and the person stood over her.
Ms Shiels described the person, extremely close to her throughout the wrestling phase, as wearing a black balaclava, a black jumper, and black track pants. She described seeing the person’s eyes, which were steely blue, and the person’s lips and nose. She recognised these features, as well as the build and stance of the person, as belonging to Trevor Karlsson, the accused.
Very shortly after being knocked to the ground, Ms Shiels described what she called an “explosion”. The “explosion” immediately shattered the glass and caused the assailant’s balaclava to melt on his forehead. She also described it as a “whoosh”. Her assailant then took off and ran around the veranda. Ms Shiels described getting up, and then realised that she was holding a Bic-style lighter in her hand which had a length of green string attached to it and held in place with red electrical tape. Photographs of that item were tendered. She immediately ran out of the house and followed the assailant who went up the three steps and to the right towards the neighbouring vacant block. Ms Shiels chased him but stopped to attempt to put the fire out and ring police.
Ms Shiels’ triple-0 call was played in Court. During that call she reported that she had been attacked by the accused, who she named, and that he had set her house and car on fire. She described the accused wearing black clothes and a black mask and having pushed her to the ground. She described that his beanie was burnt and that she had hit him with whatever she had. She stated, “my front door exploded, all the glass exploded, my house is on fire, he set a timer bomb or something.” She said she had the lighter in her hand. She repeatedly said, “I*’*m alive.”
Police attended and interviewed Ms Shiels as the fires continued to burn. Body- worn footage of that interview was played in Court. During that interview she said that she had seen the accused, that he had attacked her and pushed her to the ground. She described that they wrestled and that “he*’d set a bomb, he must’**ve, because I came out… because the bomb went off when we were wrestling at the front door.” She stated that she’d “whacked him” with what he had and that he’d run off into the gulley nearby. She further said, “I had the cord from the, I’*ve got like blinds, I had the cord, I was trying to strangle him”. She described that he was wearing all black and a balaclava which burned.
Photographs of her injuries, being scratches, bruises, burns, and singed hair were also tendered. These bruises constitute the actual bodily harm alleged by the Crown for the purposes of the related offence.
On 21 July 2022 police conducted a walkthrough of the immediate area of the fire with Ms Shiels. Body worn footage of that walkthrough was played in Court. During that walkthrough Ms Shiels described seeing a person she initially thought was her husband at the car, shouting “oi” and coming around the corner where they effectively ran to meet her halfway along the balcony. She then described that:

Detective Senior Constable Daniel Morgan gave evidence that at 2:15am he was recalled to duty to attend a fire at 2 Ferntree Lane. He arrived at about 2:45am and a number of police cars, fire trucks, and an ambulance were already in attendance. Detective Morgan described speaking to Kelly Shiels. During that conversation he recalled her telling him that “Trevor Karlsson had set fire to a car and a house and that, yeah, she*’**d had an altercation or a wrestle with him on - something like that.” He further recalled her saying that “she’d know him anywhere by his size - his build. She was close. I think she described how far away she was and she’*d looked into his blue eyes she said.”
After speaking with Ms Shiels Detective Morgan attended 15 Shumack Place to arrest the accused. He described that property as being perhaps 170 metres from 2 Ferntree Lane and estimated that he arrived there around 3am. Body-worn footage of police attending 15 Shumack Place and arresting the accused was played to the Court. The footage depicts police first knocking on the door. The accused does not initially open the door but calls out that they have got COVID. The police insist on the door being opened and the accused is observed in a beanie and dressing gown. Police cautioned the accused. They then asked him about the strong smell of either kerosene or petrol in his home. He explained that he had spilt some while refilling his generator, and showed police the items of clothing from the laundry floor which he said he had spilt the fuel on.
The accused was asked to remove his beanie, which then revealed “blistery burns” across his forehead. Photographs of these burns taken on 17 July 2022, and further photos of the burns on 22 July 2022, were tendered as evidence.
When asked where the burns came from, the answer given by the accused was “oh, acid burn, when I*’*m out by the generator … I got some acid out there, and I kicked it.” When asked about that acid, the accused showed police his generator and a white bottle, described by Detective Morgan as a white vinegar bottle. In the footage the accused picks up the bottle, appears to pour or spill some of it near the generator and over his hand, then places it back on the ground at police’s instruction before washing his hands.
Detective Morgan did not notice the smell of petrol or kerosene out near the generator, only inside the house. He did not notice any spilt petrol or fuel.
Later on 17 July 2022 Detective Morgan obtained a search warrant for the premises at 15 Shumack Place which was executed in the early afternoon. Camera footage of the search was played to the Court. During that footage police located an item of clothing variously described as a black jumper or a black jacket just underneath the corner of the property’s veranda. The jumper or jacket which had a zip up the front had several holes burned into the back and right sleeve. Further items in a plastic bag had been wrapped up in the jumper. Inside the bag was red electrical tape of the same kind found on the lighter which had ended up in the possession of Ms Shiels with what appeared to be ash on it, green string matching the green string on the same lighter retained by Ms Shiels, a burnt leaf, and a balaclava with several holes burned into the area which would cover the forehead of the wearer. Inside the home police also seized a shirt and a pair of gloves described in the footage as smelling strongly of petrol. Forensic examination subsequently confirmed the presence of petrol on the shirt, the gloves, and the balaclava.
On 17 July 2022 police performed an aerial examination of the burnt-out cabin and vehicle with a drone fitted with a camera. That footage was also played to the Court.
Further evidence tendered through Detective Morgan included the NSW ambulance records and NSW Health records relating to the accused’s burn treatment on 17 July 2022; as well as an expert certificate from the doctor who attended on him. In the NSW Ambulance records the ambulance officer’s notes indicate that “Patient stated he was starting a generator tonight when he tripped and fell.”
As I have already indicated, Detective Morgan was re-called for further cross-examination on 20 February 2026 on the issue of contamination of the crime scene. In cross-examination the officer explained inconsistencies in the crime scene log, noting that it is not an evidentiary document and that “continuity is supplied in the statements and expert statements.”

In the course of having made earlier submissions in support of the application for Crown witnesses, the accused at one point on 19 February 2026 told the Court that he was not questioning the evidence of identification. The Court gave Mr Karlsson the opportunity of seeking some legal advice with respect to whether he wished to in fact make such an admission. Following an adjournment, he indicated that he had taken counsel, albeit “from non-legal persons” and, as a consequence, he would say “no more on the identification issue”. In those circumstances and over the following days the Court indicated an intention to ignore what otherwise might have been construed as an admission against interest, particularly in circumstances where one of the identified issues by senior counsel originally appearing for the accused was the question of identification.
When the proceedings progressed to the actual point of submissions on behalf of the accused, and after he had elected to not give evidence, he commenced, effectively, with a series of submissions from the Bar table with respect to factual matters in respect of which there was no evidence.
The Court gave the accused considerable licence to make submissions which advanced alternative hypotheses for the cause of the fire. I do not propose to go into the considerable detail which was outlined from the Bar table by Mr Karlsson. It suffices to note that he described the necessity for the relevant factors giving rise to a legal installation of electricity in support of his submission that the electrical installation in the cabin was substandard. He similarly made factual assertions with respect to the gas installation, the nature of the split roof on the cabin, and a further submission that the fireplace installation was similarly illegal. The submission extended to factual assertions regarding the nature of the fireplace and the installation of the chimney.
The submissions then devolved into a dissertation with respect to the classification of different levels and purities of hydrocarbons and different types of accelerants from ethanol, butane, kerosene, petrol, and up to diesel. The submission included assertions with respect to Prime Minister Muldoon in New Zealand during the 1970s petrol crisis as having put all of New Zealand’s superannuation into a conversion plant to convert gas to petrol.
The submissions dealt in some detail with a proposition that the detection dog had reacted to hydrocarbon which could not be specifically identified and was consistent with a firelighter having been expelled from inside the building.
At TT113 on 24 February 2026 the accused in his submissions dealt with some aspects of the Crown’s circumstantial case. With respect to the subsequent finding by police of gloves on which petrol was detected, the accused said:

The unusual circumstance of the concessions and admissions ultimately made by the accused in the course of his submissions whilst self-represented require careful consideration. The Crown’s objection on the basis that there is no entitlement to make a dock statement is, as a matter of strict construction, correct. However, an accused person is entitled to make admissions as to factual aspects regarding a case presented against them whilst maintaining a plea of Not Guilty. When it first appeared to have been conceded that Identification was not in fact an issue in the trial so far as Mr Karlsson was concerned, the Court gave him the opportunity of taking legal advice. When he subsequently indicated that he did not propose to say anything further on that issue, the Court at that time indicated clearly that the effective admission would be ignored. However, in the course of the final submissions, it was abundantly clear that the accused wished to advance an exculpatory account which also sought to explain aspects of the Crown’s circumstantial case. The accused was repeatedly advised regarding the right to silence and given the opportunity to obtain further legal advice. His detailed submissions on 25 February 2026 were advanced after having given consideration overnight as to whether or not he wished to advance an explanation, as described by him, as to why he was there.
While the right to make an unsworn statement by way of a dock statement ceased to be an entitlement after 10 June 1994, the present situation, in my view, had similarities with the making of an unsworn statement. I remind myself of the proper direction which used to be given to juries in such circumstances. A jury should take such an unsworn statement as prima facie a possible version of the facts and should consider it together with the sworn evidence giving it such weight as it appears to be entitled to in comparison with such facts as are clearly established by the sworn evidence: see Peacock v R (1911) 13 CLR 619; [1911] HCA 66.
A jury would also be told that the unsworn statement was something which the law required them to take into consideration together with the evidence, but that it was not in itself evidence in the same sense as a statement of a witness given on oath and that it was not subject in any way to test by cross-examination.
Whilst the Court is entitled to take into account some aspects of the version effectively advanced from the Bar table by the accused, in particular the admission that he was present at the scene, that there was some degree of physical interaction between him and the “combative” complainant, and the circumstance whereby his balaclava melted on his forehead at the scene causing the injuries later seen by police and doctors, the balance of his explanation requires me to give myself a Liberato direction.
Accordingly, if I accept the unsworn and untested explanation that the fire had already commenced before the accused went to the vicinity of the cabin, then I must acquit him of causing the housefire. If I accept his description of the car catching fire as a consequence of embers spreading from the house fire, then I similarly must acquit him on that count.
If I do not accept one or other of those explanations, but consider either of them to be a reasonable possibility, I must similarly acquit him of the respective count or both of them.
If, however, I reject his explanations I should put his evidence, other than his admissions consistent with the Crown case, to one side and focus on whether or not the evidence in the Crown case establishes the elements of either of the principal offences beyond reasonable doubt.
I should say at this stage that the evidence given by the complainant, Ms Kelly Shiels, was persuasive and compelling. I reach that conclusion on the basis of having observed her give evidence, her immediate complaint both in the triple-0 phone call and subsequently to police, and an evaluation of the surrounding circumstantial evidence which was subsequently obtained.
Her description of the perpetrator and the nature of the clothing worn by him was subsequently strongly corroborated by the discovery of the items of clothing at the home of the accused by police following the execution of the search warrant on the afternoon of 17 July 2022.
The description of what transpired to be a balaclava having melted in the forehead area, given by her shortly after the actual incident, was totally corroborated by the discovery of the very item she described, with damage in the area she had described, and the blister injuries on the actual forehead of the accused.
She had, in the course of the physical interaction, ended up with a Bic-style lighter in her hand which had a piece of green string attached to it held in place by red electrical tape. This physical item which had come from the accused during the physical altercation, was similarly comprehensively corroborated by the finding of green string and red electrical tape identical to the items attached to the lighter which was subsequently located in the pocket of the windcheater or jacket recovered from his premises. I should note in passing that that item of apparel similarly had burn marks on it.
Notwithstanding identification having been indicated as a relevant issue in the Crown case by senior counsel then appearing for the accused, the subsequent concessions by the accused in the course of his submissions acknowledged what would otherwise have been an inevitable conclusion by the Court. Whilst I would have been satisfied beyond reasonable doubt that the accused had been correctly identified by Ms Shiels on the basis of the evidence in the Crown case alone, I am contented and reaffirmed in that conclusion by the belated concessions and admissions by the accused. I should note that in these circumstances it is not necessary for me to make any observation or determination with respect to the untested assertion by the accused that he does not have blue eyes.
I do not propose to go line by line through the explanation advanced from the Bar table by the accused as to the circumstance in which he had gone off into the bush in order to smoke a cannabis joint as a consequence of not being able to smoke at home. Despite having consistently referred to the item of headwear as a beanie, in the course of discussion in Court regarding a request that exhibits be returned, there was reference to the balaclava (see TT139-40). In the course of a discussion regarding the return of exhibits, the accused said: “Your Honour, beanie, mask, balaclava – the intention was it was a sleeping hood whilst camping to exclude vermin and rats and mosquitoes.”
I reject totally the account given by the accused by way of explanation as to what he was doing, effectively camping in the bush, prior to the fire at the cabin in Ferntree Lane. He was dressed in black and wearing a balaclava which was pulled down so that the forehead portion of the balaclava was exposed and able to be burned in the circumstances which he has subsequently accepted. He was in possession of a cigarette lighter which ended up in the hand of the complainant following the physical interaction between the two protagonists. He was correctly identified by the complainant as he now admits.
I accept without reservation her description of first seeing the perpetrator, correctly identified as the accused, in the vicinity of her motor vehicle which she saw erupt in flames immediately thereafter.
The unchallenged evidence of the fire investigator, consistent with the observations of the complainant and also of her husband when he came up from the main house, were that the patterns observed by the investigator of the burned motor vehicle and the progression patterns of the fire on the vehicle were consistent with their accounts and observations. He found no evidence to support a different source of ignition and concluded that the area of origin of the fire was on the right-hand side of the vehicle between the bonnet and front windscreen within the vent. After elimination of common causes of vehicle fire, he believed that the cause of the fire was “hot-set using a portable form of heat ignition.” In the course of his evidence he explained that a hot-set device was any item which could give a spark or a flame such as a match, cigarette lighter, or barbeque-type lighter.
I reject completely the account by the accused of him approaching the premises as a consequence of seeing embers rising into the night sky while he was camping. I similarly reject the sequential narrative outlined by the accused regarding what he says occurred when he arrived at the location. In his account, the house was on fire and having thrown a rock to awaken any occupant, he then came into the presence of the complainant who he described as “combative”.
He variously described an acceptance of being burned on the forehead portion of his balaclava whilst assisting her up from the ground before going to the vicinity of the long grass and observing for a time to ensure that she was effectively safe. His description of the car catching fire after the house as a consequence of embers formed part of his account as to the sequence of events.
As I have already indicated, I accept the evidence of the complainant that the house was not on fire after she had awoken and had seen a person at her car. I accept her evidence regarding her leaving the inside of the premises and coming into a physical confrontation with the accused. I accept her account that he was effectively standing over her whilst she was on the ground in the vicinity of the sliding doors into the cabin, which I note now coincides with part of his account, and I accept that she observed the effect of the explosion or fire, as she described it, on his forehead area.
I totally reject his account as to the circumstances leading up to his presence on the veranda.
I am satisfied beyond reasonable doubt of the complainant’s account of the physical interaction between them and of the fact that she was pushed to the ground by the accused in the vicinity of the sliding door entrance into the cabin. Two important considerations, however, remain.
The first is a consideration of the intent of the accused in pushing the complainant to the ground and the second is a consideration of the causation of the fire.
The evidence with respect to the ignition of the conflagration is somewhat contradictory.
Rein Peet, was a retired rural fire investigator who had been a staff member of the Rural Fire Service. He had 15 years of experience in conducting fire investigations. When called in the Crown case, experienced senior counsel then appearing for the accused brought no challenge to the expertise of the fire investigator. There was no cross-examination with respect to his qualifications or experience.
A detailed fire investigation report was tendered as Exhibit 26 and a copy of the same report but with markings put on various photographs in the course of Mr Peet’s evidence was Exhibit 26A. His evidence identified what in his opinion was the area of origin of the fire on the western veranda adjacent to the sliding doors providing entrance into the cabin. This, in broad terms, was the location identified by the complainant as to where she had been pushed to the ground and the accused was standing after the physical interaction had progressed to that point. The fire investigator described the fire having progressed inwards from the veranda area.
The evidence given by the complainant was to the opposite effect. She described an explosion coming from behind her, that is, from within the building. It was consequential upon what she described as an explosion that she saw the forehead area of the balaclava effectively melt. The fire investigator gave evidence in terms that there was no evidence of any explosion. He did, however, agree that the “whoosh” as described by the complainant, could be something which may be mistaken for an explosion. While it would depend upon the quantity of, for example, petrol that ignited, it would be consistent with a misdescription of somebody as an explosion.
The fire investigator expressed an opinion that there were no ignition sources or likely causes of structural fire. He excluded elements to do with the gas bottle, electrical faults, and the direction of the fire being inconsistent with the internal fireplace having contributed to ignition. His ultimate opinion was that the fire had been hot-set using a portable form of ignition commencing in the vicinity of the doorway entrance into the cabin. Subsequent utilisation of a detector dog who was trained to react to and indicate a particular site at which accelerant was detected gave rise to the dog identifying two particular locations in the vicinity of the cabin.
In addition to the reaction of the detector dog at the scene, police noticed the strong smell of petrol or kerosene inside the premises of the accused when they attended for the purpose of arresting him within hours of the fire. Subsequent detection of the presence of petrol or another accelerant on the clothing which had been worn by the accused prior to the execution of the search warrant are additional circumstances which require to be considered in a determination as to whether or not the ignition of the fire is attributed, beyond reasonable doubt, to the accused.
At a point in time immediately before the commencement of the fire, the accused had ignited the complainant’s motor vehicle and was in a physical interaction with her on the veranda at the entry doors to her cabin. He was in possession of what the investigator described as a portable form of heat ignition, namely the Bic-style lighter.
With respect to the apparent contradictory descriptions and conclusions regarding the ignition of the fire, I prefer the reasoned expertise based on experience of the fire investigator rather than the impression of Ms Shiels when she was on the ground in the course of a physical altercation with the accused. The location identified as the commencement of ignition by the fire investigator is consistent with the physical location of the accused at the very time that Ms Shiels says the fire commenced. While she may have had the impression that there was an explosion, I accept the evidence of the fire investigator that there was no evidence to support such a conclusion. However, the impression of an explosion was consistent with her description of a “whoosh”.
Notwithstanding the variability between the account given by the complainant when she was on the ground and the conclusions by the experienced fire investigator as to the source and direction of the ensuing fire, I am satisfied beyond reasonable doubt that the person who caused the fire was the accused.
In reaching that conclusion, I have given careful consideration to the possibility of a reasonable hypothesis leading to a different conclusion. Unlike the position in Baden-Clay*,* where the High Court ultimately held that the evidence given by Baden-Clay at his trial and which was clearly rejected by the jury had the effect of excluding the hypothesis upon which the Queensland Court of Appeal had rested their decision, I have viewed the alternative hypotheses advanced by the accused in the course of his submissions as potential hypotheses worthy of consideration despite the absence of any evidence in support of any of them.
Pursuant to my acceptance of the evidence of the fire investigator, I reject those hypotheses as fanciful attempts by the accused to conjure an alternative explanation for his acts on the night. There is no reasonable hypothesis other than he had attended the scene equipped with a means of disguise, the portable means of ignition, and the circumstances are consistent with him having had close interaction with an accelerant as revealed by the presence of accelerant on items of his clothing.
The remaining question for careful consideration is the intent of the accused when he started the fire. Having been confronted whilst at the car by the awakened complainant who yelled abuse at him from the northern portion of her veranda, rather than run away, he immediately went towards her. I accept her account of the accused grappling with her and pushing her around to the vicinity of the sliding doors. I accept that there was no fire in the house at that point in time. There is no doubt, and I accept, that he pushed her to the ground. He was in possession of the lighter and I am satisfied that in the circumstances attending the physical interaction, he caused the fire to start. I am satisfied, and accept the submission by the Crown, that objectively viewed, lighting a fire in proximity of a person on the ground was an act endangering life.
In circumstances where I am satisfied that the fire was deliberately lit in those circumstances, I am similarly satisfied that the lighting of the fire was with the intention of endangering the life of the complainant.
In those circumstances, I am satisfied that each of the principal substantive offences are established. There will be a verdict of Guilty on both counts.
With respect to the s 166 summary offence, I am satisfied that there was an assault of the complainant by the accused. I am similarly satisfied that in the course of that physical assault, a degree of actual bodily harm was occasioned to her in the form of bruises and there will accordingly be a verdict of Guilty with respect to the summary offence.

R v Karlsson

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

PROCEDURAL HISTORY

PRINCIPLES

FUNCTION

BURDEN AND STANDARD OF PROOF

GOOD CHARACTER

INFERENCES AND CIRCUMSTANTIAL EVIDENCE

WITNESSES

Identification

Evidence given by alternative arrangements

MARKULESKI DIRECTION

CONSCIOUSNESS OF GUILT

ELEMENTS OF CHARGES

Alternative Verdicts

Issues at Trial

EVIDENCE AT TRIAL

Kelly Shiels (Complainant)

Barry Shiels

Detective Senior Constable Daniel Morgan (Officer in Charge)

Raymond Irving (NSW Fire & Rescue)

Alexander Kotevski (FASS)

Rein Peet (NSW Rural Fire Service)

CROWN SUBMISSIONS

DEFENCE SUBMISSIONS

CONSIDERATION

Parties

Legislation Cited (2)

Cases Cited (8)

Cited By (1)