R v Mason [2019] ACTSC 161

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2019] ACTSC 161

7, 8, 9 and 22 July, 28 October, 5 and 23 November 2015

Light unauthorised fire (5 January 2014): Not guilty

Light unauthorised fire (16 January 2014): Not guilty

CRIMINAL LAW - GENERAL MATTERS - Trial by judge alone - two charges of causing bushfires - analysis of physical and fault elements - offences of specific intent - mental impairment defence - nature of burden imposed on defence by form of ACT Criminal Code.

CRIMINAL LAW - GENERAL MATTERS - Trial by judge alone - two charges of causing bushfires - physical element of offences not made out beyond reasonable doubt - verdicts of not guilty.

CRIMINAL LAW - GENERAL MATTERS - Trial by judge alone - five charges transferred from Magistrates Court - two backup charges of lighting fires - physical element of offences not made out beyond reasonable doubt - charge of possessing knife in public - reasonable excuse for possession found - verdicts of not guilty on three charges - one charge each of trespass and theft - physical elements made out - mental impairment defence not established - verdicts of guilty on charges of trespass and theft.

Crimes Act 1900 (ACT) ss 309, 382

Criminal Code 2002 (ACT) ss 13, 14, 15, 18, 20, 27, 28, 29, 56, 57, 58, 59, 60, 301, 304, 321, 405, dictionary

Emergencies Act 2004 (ACT) s 125

Evidence Act 2011 (ACT) ss 55, 98, 101(2)

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11

Supreme Court Act 1933 (ACT) ss 68C, 68CA, 68E, 68D(2)

DPP v Scheele [2016] ACTCA 23

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Fleming v The Queen [1998] HCA 68; 197 CLR 250

Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500

R v Barker [2014] ACTSC 153

R v Gale [2012] NSWCCA 174; 217 A Crim R 487

R v Stables [2014] NSWSC 967

Shepard v The Queen [1990] HCA 56; (1990) 170 CLR 573

Ian Freckelton QC and Hugh Selby, Expert Evidence (Thomson Reuters, 5th ed, 2013)

1. The accused, Shane Mason, was arraigned before me on 7 July 2015 on the following charges (the bushfire charges):

(a) Count 1: that on 5 January 2014 he recklessly caused a fire and was reckless about the spread of the fire to vegetation on property belonging to someone else.

(b) Count 2: that on 16 January 2014 he recklessly caused a fire and was reckless about the spread of the fire to vegetation on property belonging to someone else.

2. The accused pleaded not guilty to both the bushfire charges.

3. Mr Mason had also been charged in the Magistrates Court with several other offences (the transferred charges), being:

(a) two back-up charges of lighting a fire without authorisation, relating to the same fires dealt with in the bushfire charges;

(b) one charge each of unauthorised possession of a knife and possession of cannabis, relating to items found in Mr Mason's possession after the fire that is the subject of the first bushfire charge (the 5 January fire); and

(c) one charge each of trespass and theft, relating to the removal of a dog from RSPCA premises shortly before the fire that is the subject of the second bushfire charge (the 16 January fire).

4. Mr Mason had pleaded guilty to the cannabis possession charge in the Magistrates Court, but not guilty to the other five charges.

5. All six charges were transferred to the Supreme Court, under s 68E of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), as back-up or related charges (as defined in s 68CA of that Act) in respect of the bushfire charges. Under s 68D(2) of that Act, at the conclusion of this trial or in the course of any resulting sentencing proceeding, I must deal with those back-up or related charges if I consider that it is in the interests of justice to do so.

6. Some of the evidence relevant to the transferred charges would in any case have been given in the course of the trial of the indictable offences, but some was not relevant to that trial and could only be given by leave, which was granted on the first day of the trial.

7. The accused elected to be tried by judge alone.

8. Section 68C of the Supreme Court Act specifies the procedures to be followed for a trial by judge alone. In summary:

(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;

(b) the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen [1998] HCA 68; 197 CLR 250); and

(c) the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have had to be made, to a jury, in the proceedings.

9. In a judge-alone trial the judge must give herself certain general directions equivalent to those that would be given to a jury. As well as the general directions that are always required, the Crown identified certain other directions required in this case, relating to:

(a) dealing with a circumstantial case;

(b) consciousness of guilt;

(c) coincidence evidence; and

(d) expert evidence.

10. The general directions, including those relating to dealing with a circumstantial case, are set out immediately below. The proper treatment of evidence said to suggest a consciousness of guilt, coincidence evidence, and expert evidence is dealt with at the relevant parts of this judgment, although not in the form of directions suitable for a jury (respectively at [424]-[447], [465], and [517]-[577] below).

11. General directions relate to the presumption of innocence, the burden of proof generally, and the way evidence should be dealt with.

12. Accordingly, I direct myself that the prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely, beyond reasonable doubt.

13. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt. It is not enough for the prosecution to persuade me that the accused is probably guilty, or even that he is very likely guilty.

14. If the accused offers or suggests an explanation that is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

15. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness's evidence. I may, if I think fit, accept part and reject part of the same witness's evidence.

16. There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, "Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?"

17. Even in a circumstantial case, the onus of proving Mr Mason's guilt in respect of the charges is on the Crown. It must establish his guilt beyond reasonable doubt. Each of the elements of the offence concerned must be established beyond reasonable doubt before I may find Mr Mason guilty of that offence.

18. In determining whether any particular fact has been established by the evidence, I may draw reasonable inferences or conclusions from the facts I find established.

19. In this case, the Crown relies largely if not entirely on "circumstantial evidence"; it asks me to find certain basic facts and then, from those facts, to draw a conclusion as to the existence of further facts.

20. Circumstantial evidence can be contrasted with direct evidence, being what a witness says that he or she saw, heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.

21. In a circumstantial case, the Crown lacks direct evidence of that kind, and no individual fact can prove the guilt of the accused. I am accordingly asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence which do not, however, need to be proved beyond reasonable doubt. Taken by themselves they cannot prove Mr Mason's guilt. I am then asked to infer from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that Mr Mason is guilty of the offences charged.

22. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, and upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach the circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular fact in isolation and ask whether that fact proves Mr Mason's guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with Mr Mason's guilt.

23. The correct approach is, first, to determine what facts I find established by the evidence (which facts do not need to be proved beyond reasonable doubt). I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Mr Mason is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails, and I must find Mr Mason not guilty.

24. If I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can find Mr Mason guilty, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with Mr Mason's guilt, the circumstantial case also fails, because I cannot be satisfied beyond reasonable doubt of Mr Mason's guilt.

25. In drawing a conclusion from one set of established facts to find that another fact is proved I must apply a logical and rational process of reasoning, and must not rely on mere speculation, conjecture or supposition.

26. In short, in order to satisfy me beyond reasonable doubt of Mr Mason's guilt of an offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence, and must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that Mr Mason is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown's circumstantial case has failed.

27. Although Mr Mason had initially entered simple pleas of not guilty, the defence had notified the prosecution very shortly before the start of the trial that a mental impairment defence would be relied on if Mr Mason were found to have started either of the fires.

28. The defence consented to the two bushfire charges being tried together, but reserved, until the evidence had been given, its position on whether any of the evidence could be used for coincidence reasoning. The prosecutor suggested that, in fairness to the accused, the coincidence application should be determined at the end of the Crown case, but defence counsel did not pursue this suggestion, and in the end the application was left to be determined on written submissions after all the evidence had been given (at [517] to [576] below).

29. The trial was originally estimated to run for three or four days, but for some reason was listed, for two days only, in the middle of a period when jury trials were also being listed before me.

30. However, despite the agreement to defer discussion of matters such as the coincidence application, the first three days were not sufficient even for all the prosecution evidence to be heard before I had to adjourn Mr Mason's trial and preside over a jury trial; in fairness to the Crown, I note that some defence evidence, specifically from psychiatrist Dr Stephen Allnutt, was interposed, to suit Dr Allnutt's availability, before the prosecution evidence had been completed.

31. Mr Mason's trial then resumed for one day later in the same month (day 4), at which point Dr Allnutt completed his evidence. The trial was then adjourned again, this time for three months. On day 5, Dr Barker (called by the Crown) gave further evidence, the Crown closed its case, and Mr Mason began giving his evidence. Mr Mason continued to give evidence on day 6, just over a week later, and his ex-wife gave her evidence. On day 7, a further two weeks later, Dr Barker was recalled for further cross-examination, and Mr Mason was also recalled. Four more witnesses gave evidence for the defence.

32. Those last four defence witnesses had been called long after the trial began, at the point when it became apparent to defence counsel that the Crown did not simply dispute the availability of a mental impairment defence on the grounds that there was insufficient evidence to suggest (or prove) that Mr Mason's mental impairment had meant that he was not criminally responsible (at [59] below), but also disputed that, at the time of the offences, Mr Mason had been suffering from a mental impairment at all.

33. In short, this trial was disorganised and disjointed from start to finish; it has not been easy to make sense of it in this judgment.

34. The fires that are the subject of the two bushfire charges started in two separate locations in a rural area in Canberra (near the Molonglo River below Scrivener Dam), on 5 and 16 January 2014 respectively. Before the first of the fires mentioned in the indictment, there had been a fire in the same general location on 20 December 2013 in which Mr Mason's car was destroyed. For this reason, I shall refer in this judgment to the car fire, the 5 January fire and the 16 January fire.

35. Some time after 7am on 5 January 2014, two people observed smoke rising from a rural area in Weston Creek near the Molonglo River, not far from a small concrete bridge. Both of them made emergency calls to report their observations to ACT Fire and Rescue. At approximately 7.45am fire-fighters attended the block and observed a fire, roughly 4 m x 4 m (16 m2) in area, burning in long grass near the river.

36. Fire and Rescue staff initially saw Mr Mason standing next to the fire. As they approached, he left the area of the fire, and he was subsequently found nearby lying face-down in long grass.

37. Around 5am on 16 January 2014, a woman walking her dog along the Molonglo River in the Molonglo Valley District observed a fire in an area between the river and a nearby pine plantation. She saw Mr Mason standing next to the fire, and called out to him, but he disappeared. The woman then left the area and returned home to make an emergency call.

38. Constable Sean Evans responded to the emergency call shortly after 5.30am. When he reached the area, he observed a fire roughly 10 m x 10 m in area, burning to a height of 12 m to 15 m in a tree. Shortly after arriving, Constable Evans observed Mr Mason lying face-down under a causeway over the river near the scene of the fire. He was partially submerged in water. Mr Mason had suffered burns to his right arm and was subsequently taken to hospital for treatment. Fire-fighters extinguished the fire, which by then had spread to cover an area of around 20 m x 20 m.

39. The causeway referred to at [38] above appeared to consist of several large pipes (through which such water as was released from the Scrivener Dam continued to flow as the Molonglo River), set into concrete which held the pipes in place and provided a surface that, most of the time, would have permitted pedestrians and cyclists to cross the river. It is referred to variously in the evidence as a "causeway", a "bridge" and a "concrete bridge" (not to be confused with the small concrete bridge, also referred to as a "footbridge" and serving pedestrians and cyclists, that crosses a creek that flows into the Molonglo River near the site of the 5 January fire, and is referred to in some of the evidence relating to that fire).

40. The connections between the transferred charges and the two fires giving rise to the bushfire charges are explained at [3] above.

41. Apart from outlining the evidence to be given, the prosecutor indicated an intention to rely on flight, and lies, as showing a consciousness of guilt in relation to the 5 January fire. The asserted flight is Mr Mason's attempt to hide in long grass from fire-fighters and police officers attending the fire, and the lies are said to be constituted by claims made by Mr Mason to Dr Allnutt and to Dr Barker to the effect that he had put out that fire.

42. The prosecutor indicated that the Crown sought to rely on coincidence evidence in relation to both bushfire charges, and identified a number of similarities between the two events.

43. Defence counsel explained that Mr Mason denies lighting either of the fires. However, counsel said, if the evidence establishes that he lit either or both of the fires, and was reckless about the spread of the fire when he did so, then a mental impairment defence would be relied on. Counsel noted that, since Mr Mason maintained his denial of having lit either of the fires, and claimed to have no memory of relevant events, he had been unable to give Dr Allnutt any information about his mental functioning at the time that the fires were started. Accordingly, he said, Dr Allnutt has been unable to provide any direct assessment of Mr Mason's condition at the time of the relevant events, but in his report he had suggested conclusions that he believes can reasonably be drawn from the evidence that has been available to him, including:

(a) that at the time of the fires Mr Mason had relapsed into mania and psychosis, which is known to contribute to reduced concern about the consequences of one's behaviour, as well as to disinhibition; and

(b) that if he did light a fire then, because of some kind of delusion, Mr Mason might not have known that his action was wrong.

44. Counsel noted that it was unlikely that Mr Mason's mental impairment had impaired his understanding of the nature or quality of his conduct or his ability to control his conduct.

45. Because of the way in which the case was conducted and the issues that were raised, it is useful to outline first the legal issues arising and the approach that will be required in addressing those issues.

46. The offence of causing a bushfire is created by s 405 of the Criminal Code 2002 (ACT):

(b) is reckless about the spread of the fire to vegetation on property belonging to someone else.

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

Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).

causes a fire - a person causes a fire if the person does any of the following:

(c) fails to contain or extinguish a fire that was lit by the person if it is not beyond the person's capacity to contain or extinguish it.

spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it.

47. Other relevant provisions of the Criminal Code are as follows:

1. Definitions - conduct and engage in conduct

conduct means an act, an omission to do an act or a state of affairs.

(c) a circumstance in which conduct, or a result of conduct, happens.

(1) Conduct can only be a physical element if it is voluntary.

(2) Conduct is voluntary only if it is a product of the will of the person whose conduct it is.

1. a spasm, convulsion or other unwilled bodily movement
2. an act done during sleep or unconsciousness
3. an act done during impaired consciousness depriving the person of the will to act

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) An omission to do an act is voluntary only if the act omitted is an act that the person can do.

(1) A person has intention in relation to conduct if the person means to engage in the conduct.

(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.

(1) A person is reckless in relation to a result if -

(a) the person is aware of a substantial risk that the result will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is a question of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

48. The Crown submissions provided the following analysis of the elements of the offence:

• The accused engaged in conduct (physical element of conduct)
• The accused intended to engage in conduct (default element of intention - s22)
• The accused's conduct causes a fire (s405(2): a person causes a fire if the person does any of the following:
  • lights a fire;
  • maintains a fire;
  • fails to contain or extinguish a fire that was lit by the person if it is not beyond the person's capacity to contain or extinguish it. - physical element of result)
• The accused is reckless about whether his conduct causes a fire (fault element provided by section)
• The accused is reckless about the spread of the fire to vegetation on property belonging to someone else (s 405(2): spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it. - ulterior fault element provided by section) [p 4, para 10 of revised submissions]

49. I am not entirely convinced by this analysis, because although the use of the word "causes" suggests a reference to a "result of conduct" rather than to conduct as such, the word "causes" is in fact only used as a marker (that is, a defined term) to provide a shorthand reference to the several items of conduct any of which could provide the physical element of the offence (being lighting a fire; maintaining a fire; or failing to contain or extinguish a fire that was lit by the person if it is not beyond the person's capacity to contain or extinguish it).

50. For this reason, the Crown's attempt to separate the accused's conduct from the "causing" of the resulting fire, and to give each aspect of the physical element its own (different) fault element, may produce confusion rather than clarity.

51. An alternative analysis would require the following matters to be established:

(a) to satisfy s 405(1)(a), that:

• (i) A engaged in conduct consisting of lighting a fire; maintaining a fire; or failing to contain or extinguish a fire that was lit by A if it was not beyond A's capacity to contain or extinguish it;
• (ii) A's conduct was intentional and voluntary (as distinct from accidental or involuntary: ss 15 and 18 of the Criminal Code);
• (iii) A engaged in that conduct intending to "cause" or produce a fire, or reckless about whether his conduct would "cause" or produce a fire (fault element provided by s 405);

(b) to satisfy s 405(1)(b), that when A engaged in that conduct, he was also reckless about whether the resulting fire would spread to vegetation on property belonging to someone other than himself.

52. I note, however, that both approaches are complicated by the fact that "fire" is a difficult concept in this context. For instance, a fire that starts with a single burning match may develop (directly or via a careless campfire) into a fire that destroys a whole forest. Whether the burning match, the campfire and the forest fire are the same fire, and if not, when does the first fire end and each subsequent fire begin, are difficult philosophical questions that may cause real difficulties in applying the offence provision concerned. It is implicit in each of the analyses set out above (but not necessarily correct) that the initial fire (for instance, the burning match or flaming cigarette lighter) can meaningfully be separated from the resulting fire that might, in turn, spread to vegetation and develop into a bushfire.

53. There are also several uncertainties in the concept of a fire "spreading" to "vegetation" on "property belonging to someone else". In this case, the question might arise whether "property belonging to someone else" means "property belonging to someone other than the accused" or "property belonging to a person other than the person on whose property the fire is caused". If the former, this element of the offence is unlikely to present any problems for the Crown; if the latter, the Crown might, given the location of the fires concerned, struggle to establish an intent on Mr Mason's part relating to the spread of a fire to property not held by the Territory.

54. For present purposes, I accept the essence of the Crown's analysis, which seems to require the Crown to establish, for a bushfire charge, that:

(a) Mr Mason voluntarily and intentionally did an act;

(b) the act caused a fire;

(c) Mr Mason intended the act to cause a fire, or was reckless about whether it would cause a fire; and

(d) when he did the act, Mr Mason was reckless about the fire spreading to vegetation on someone else's property.

55. Mr Mason would have been reckless about causing a fire if he was aware of a substantial risk that a fire would be caused and, having regard to the circumstances known to him, it was unjustifiable to take the risk. He would have been reckless about the spread of the fire if he intended such a spread (Criminal Code, s 20(4)) or was aware of a substantial risk that the fire would spread and, having regard to the circumstances known to him, it was unjustifiable to take the risk.

56. Even where the Crown relies on a circumstantial case of the kind in which there is no need to prove each item of circumstantial evidence to any particular standard (a "strands in a cable" case), each element of the offence must be proved beyond reasonable doubt before the accused can be found guilty (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579-580).

Mental impairment - burden and standard of proof

57. Mr Mason's defence is first, that he did not start either of the fires. He also says, however, that if he did start either of them, he is not criminally responsible because of the effect of a mental impairment that he was suffering at the time.

58. Several provisions of the Criminal Code are applicable in dealing with the issue of mental impairment in this trial. They are relevantly as follows:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

1. Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -

(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

(b) for any other offence - find the person not guilty of the offence because of mental impairment.

(1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

(2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.

(1) The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.

Note See s 11 (Elements) on what elements are relevant to a person's guilt.

(2) The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.

legal burden, in relation to a matter, means the burden of proving the existence of the matter.

(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

(1) Subject to section 59 (Legal burden of proof - defence), a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.

(5) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.

(6) The question whether an evidential burden has been discharged is a question of law.

evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly -

(a) provides that the burden of proof in relation to the matter in question is a legal burden; or

(c) creates a presumption that the matter exists unless the contrary is proved.

A legal burden of proof on the defendant must be discharged on the balance of probabilities.

59. Section 28 is the core provision for present purposes. It provides (at s 28(1)) that a person is not criminally responsible for an offence constituted by conduct if, at the time of the conduct, the person was suffering from a mental impairment (defined at s 27) that, in general terms, had the effect that the person did not have a proper understanding of his conduct (ss 28(1)(a) and (c)) or could not control it (s 28(1)(b)). I shall refer to each of these effects as a relevant effect.

60. There is a presumption against a person being mentally impaired (s 28(4)), but that presumption can be displaced by proof of mental impairment on the balance of probabilities (s 28(5)). That proof may come from the prosecution or the defence, but for present purposes, the effect of ss 28(4) and (5) and s 59(c) is that the defence has the legal burden of proving mental impairment on the balance of probabilities (s 60).

61. A mental impairment, however, is not a condition that necessarily excludes criminal responsibility. Section 28 makes it clear that criminal responsibility is only excluded if the mental impairment is shown to have had a relevant effect in relation to the conduct constituting the offence.

62. The Crown submission was that the defence also bore the legal burden of proving that the mental impairment had a relevant effect. However, the statutory presumption that a person is not mentally impaired is not the same as a statutory presumption that a mental impairment that is suffered by a person does not cause any relevant effect, and there is no other applicable statutory presumption. Nor is there an express provision of the kind referred to in s 59(a) or (b) about the impact of mental impairment on a person's functioning.

63. As far as I can see, this means that proof of a relevant effect is subject to s 58(2), such that, if and when the defence has discharged the legal burden of establishing mental impairment on the balance of probabilities, the defence then bears only an evidential burden of establishing a relevant effect.

64. The Crown submission, that the defence carried a legal rather than evidential burden of establishing a relevant effect, relied on the proposition that in enacting s 28 of the Criminal Code, the ACT was adopting a provision equivalent to s 7.3 of the Commonwealth Criminal Code (the Commonwealth Code), set out in the Schedule to the Criminal Code Act 1995 (Cth). The intention of the ACT Legislative Assembly to enact a provision equivalent to s 7.3 is said to be indicated in the Explanatory Statement for the ACT Criminal Code, which was relevantly as follows:

Clause 28 Mental impairment and criminal responsibility

This clause provides that a person is not criminally responsible for an offence if, at the time of the relevant conduct, the person was suffering from a mental impairment that had the effect that (a) the person did not know the nature and quality of the conduct; or (b) that the person did not know that the conduct was wrong; or (c) that the person was unable to control the conduct. A mentally impaired person is not criminally responsible if any one of these effects is present at the time of his or her conduct.

The Commonwealth Explanatory Memorandum explained:

The provision is based on the McNaghten test. The McNaghten test proceeds in two stages. First, it must be established that the defendant has a "disease of the mind". Then it must be shown that the "disease of the mind" caused the defendant not to "know" the nature and quality of his or her act, or that it was wrong.

The first arm of the test in [subclause 28(1)] follows McNaghten closely. The second arm of the test also follows McNaghten but incorporates the famous formulation, often used by trial courts to this day, formulated by Mr Justice Dixon in Porter [1933] HCA 1; (1933) 55 CLR 182.

...

[Paragraph 28(1)(c)] adds a third head to the McNaghten rules: inability to control conduct. ...

...

Under [Subclause 28(4)] there is a presumption that a person is not suffering from a mental impairment. This can be displaced by either the prosecution or defence on the balance of probabilities.

In all jurisdictions, if the defendant wishes to rely on the insanity defence, he or she bears the burden of proving the defence on the balance of probabilities.

65. The last sentence quoted from the Commonwealth Explanatory Memorandum, in context, seems to refer to the jurisdictions consulted about the new Code, rather than to jurisdictions which might subsequently adopt similar provisions to those set out in the Commonwealth Code. Given that the Commonwealth Code preceded the ACT Criminal Code by some seven years, it is unlikely that the commentary prepared before the enactment of the Commonwealth Code was, as such, intended to apply to any generally equivalent legislation the ACT subsequently chose to enact.

66. Section 7.3 of the Commonwealth Code, the model for s 28, was as follows:

7.3(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or

(2) The question whether the person was suffering from a mental impairment is one of fact.

(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.

(4) The prosecution can only rely on this section if the court gives leave.

(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.

(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.

(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.

"mental impairment" includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

67. The Commonwealth Explanatory Memorandum indicates that the mental impairment "defence" is a two-stage test, requiring first that there was a mental impairment and then that the mental impairment had one of the specified effects on the accused's mental state at the time of the relevant events.

68. Section 7.3 of the Commonwealth Code makes it clear that the burden imposed on the defence applies to both stage of the mental impairment "defence", because s 7.3(3) refers (twice) to "such a mental impairment"; this can only sensibly refer to a mental impairment that has one of the effects described in s 7.3(1).

69. The problem for the Crown, however, is that s 28 of the ACT Criminal Code does not exactly repeat s 7.3 of the Commonwealth Code. In particular, the relevant provisions (ss 28(3) and (4)) do not refer to "such a mental impairment", but only to "a mental impairment", an expression which is a defined term under s 27 and is not limited by any requirement that relevant conditions have a an effect as described in s 28(1). It may be true that "such" is sometimes used in formal writing for no good reason, and this may be why the word has been dropped from the ACT provision. However, in this case the word does seem to have had a purpose. The "defining such", that is, "such" used to mean "as defined above", has been recognised as:

A useful device in drafting legal documents, where precision is all-important ... so as to avoid ambiguity without having to repeat the defining words[1]

70. That is, in creating the presumption about mental impairment (s 28(4)) that then determines where the burden of proof falls (s 28(5)) and the nature of that burden (relevantly, ss 59 and 60), s 28 has been deprived of the "defining such" which would have identified the reference in s 28(4) as a reference to the particular form of mental impairment described in s 28(1) rather than the wider form of mental impairment defined in s 27.

71. Given the difference in the grammatical effect of the two provisions, it is also an available conclusion that the ACT provision is relevantly different from the Commonwealth provision because it was intended to mean something different.

72. In short, the Commonwealth legislation clearly applies the presumption in s 7.3(3) to both parts of the mental impairment test, and accordingly s 13.4 of the Commonwealth Code imposes a legal burden on the defence in respect of both aspects of the mental impairment defence.

73. The ACT version of the provision, on the other hand, says nothing to indicate that the s 28(4) presumption applies not just to mental impairment as defined in s 27 but also to the effects of mental impairment described in s 28(1).

74. In DPP v Scheele [2016] ACTCA 23 (Scheele), the Court of Appeal said:

62. Finally, the construction urged by the Director would extend the operation of the offence provisions in the Firearms Act, including s 42, beyond the scope otherwise suggested by the clear words used. The effect would be that, despite the clear words used in s 7, a person could be charged and convicted of using or possessing a prohibited firearm that was not a firearm. That would be contrary to the well established principle of statutory construction that the court will not disregard the clear words of a legislative provision so as to extend the scope of criminal liability, even if it thinks that, by inadvertence or error, the legislature has failed to deal with that matter: Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at 223 [62]- [63] (McHugh J). In Ex parte Fitzgerald, Re Gordon [1945] NSWStRp 2; (1945) 45 SR (NSW) 182 at 186, Jordan CJ put the principle in the following terms:

If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.

75. In this case the relevant provisions of the Criminal Code relate to burdens of proof rather than to criminal liability directly. However, the imposition of a burden of proof on the defendant in a criminal matter may have a significant impact. Accordingly, it seems to me that the principle identified by the Court of Appeal in Scheele would also be offended in this case by reading a provision that has been deliberately altered by the legislature in a grammatically significant way as if, despite that alteration, it imposed the same, heavier, burden of proof on a defendant in a criminal case as was effectively imposed by the original version of the provision.

76. For these reasons, I am inclined to the view that s 59 of the Criminal Code should not be read as imposing a legal burden (rather than merely an evidential burden) on the defence in respect of the second part of the mental impairment test, that is, whether a mental impairment had a relevant effect.

Consideration of evidence - offences of specific intent

77. The Crown submissions drew attention to the approach adopted in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 (Hawkins) and followed in NSW in R v Stables [2014] NSWSC 967, which requires the issues in a case involving an offence of specific intent to be determined in the following order:

(a) Did the accused do the act necessary to constitute the offence?

(b) If so, was he criminally responsible for doing the act (that is, does he have a mental impairment defence)?

(c) If not, was the act done with the necessary fault element?

78. The application of this approach to the current case relies on the proposition that the bushfire offence is an offence of specific intent because:

(a) it is an element of the offence that the accused was reckless about the spread of the fire (s 405(1)(b)); and

(b) "recklessness" includes intention and knowledge (s 20(4)).

79. That is, making out the offence requires, in general terms, proof not only that the accused intentionally or recklessly caused the fire but also that when he engaged in that conduct he had the necessary state of mind about the particular result of the conduct specified (in this case, that he intended, or was reckless about, the spread of the fire).

80. The significance of the application of this approach is that, if I conclude that Mr Mason engaged in the relevant conduct (causing the fire), I will then be required to consider whether a mental impairment defence is available to Mr Mason before I consider whether he had the specific intent (related to the spread of the fire) required to make out the offence.

81. The Crown called 20 witnesses, and the defence 7 witnesses.

82. On 5 January 2014, at around 7.15am, Kerry Tanner was walking in the Yarralumla horse paddocks with two family members. Another woman, Kaye, who also owned a horse, approached Ms Tanner and told her that she thought she could see smoke coming from down near the river. Ms Tanner looked and saw smoke, which she described as "just sort of a small, like a campfire smoke going straight up in the air".

83. Ms Tanner telephoned 000 and said that she could see smoke and that she was concerned that, if the wind picked up, the fire might come straight up through the horse paddocks. It had been a warm morning.

84. She believed that the fire was about a kilometre away from her; she could not see the fire itself but only the smoke going straight up in the air. She could see a person walking around the far side of the fire. Shortly after making the 000 phone call, which was received at 7.39am, she left the area.

85. On 5 January 2014, at around 6.15am, Lisa Studdart began a walk around Lake Burley Griffin. Shortly before 7.00am, she had walked past the Yarralumla Yacht Club and through "that forest area". As she approached Scrivener Dam, she observed in the direction of the dam a single plume of smoke rising; she thought this was unusual, particularly for that time of year.

86. When she got closer to Scrivener Dam, she could see that the smoke came from a gully near a concrete foot bridge. When she was only 10 to 20 metres away from the source of the smoke, she decided she should call the fire brigade, and took out her mobile phone.

87. She continued walking towards the smoke, and saw a man come out of the gully from the direction of the fire. She described him as middle-aged, "a bit scruffy-looking", and unshaven, as if he had been camping. He was wearing a heavy dark-coloured overcoat.

88. Ms Studdart asked the man, "Is everything alright there? Should I call it in?" He answered, in what she described as an aggressive and intimidating tone, "Why would you want to do that? Fucking do-gooder. Why would you waste the police time? Mind you own business."

89. Ms Studdart felt uncomfortable. She said "Don't worry, I'm putting my phone away" and walked on. When she was some distance away from where she had encountered the man, she called 000. Her call was received at 7.52am, and the operator told her that there was already "a truck on the way to that".

90. In her 000 call Ms Studdart mentioned to the Fire Brigade operator that she had seen a burnt-out car next to the fire, and described the man she had met as "quite abusive" to her.

91. Pressed to describe the man's behaviour, Ms Studdart repeated that he was aggressive and intimidating, that he clearly didn't want her to make a phone call, and that she felt uncomfortable.

93. In January 2014, a week or two before 16 January, Brett Keary was walking his dog on a fire trail in Stromlo Pine Forest, heading towards Scrivener Dam. It was around 7:00am or 8:00am when he heard radio chatter from a CB in a vehicle. As he got closer, he saw that the fire brigade was present and he believed that they had just put out a fire in an abandoned car on the other side of the river.

94. From a distance of about 150 or 200 metres, he noticed that a couple of the fire brigade officers were walking around as if they were looking for something, and then he noticed, around 100 to 150 metres away from the abandoned car, a person hiding in the bushes and watching the two officers. He said the man was wearing something like a Drizabone coat and an Akubra-style hat; he was staring at the two fire brigade officers, and as they came closer he "ducked and disappeared into some scrub".

95. Mr Keary called out to the officers that there was someone hiding in the bushes. As they approached the area where he had seen the man duck into the bushes he called out "That's where I saw him". He then heard one of the officers asking a person to stand up. The man in the Drizabone and Akubra stood up out of the bushes. Mr Keary then moved on.

96. On 16 January 2014, around 5:30am or 6:00am, Mr Keary was again walking his dog in the same area. He was walking towards Scrivener Dam, with the river on his right and the pine forest on his left. When he reached a concrete river crossing, he could see smoke in the distance. He kept walking, and noticed a fire truck parked on the Tuggeranong Parkway. He took several photographs (one of the smoke rising, one of the fire itself, and one of the area after the fire-fighters had put out the fire). He said that as he approached the fire, the flames seemed to be at least a few metres high and starting to go up into the pine trees. The fire was burning leaves, pine needles and other bush material on the ground.

97. As Mr Keary passed the fire truck, he noticed a police officer with a motorbike parked on the causeway and a person sitting in the river "crying out in pain that they had been burnt and they thought their throat was burnt". There was also a small white dog with black markings "hanging around" with the person sitting in the river.

98. Mr Keary was not cross-examined. However, I note that Mr Keary's evidence about his role in pointing out a person in the vicinity of a fire at some point before 16 January clearly related to the 5 January fire; Mr Keary was apparently the man referred to by Station Officer Samuel Evans as a "jogger" who had called out to fire-fighters about the man hiding in the bushes (at [105] below). It is not disputed that Mr Mason's car was burned in late December 2013 (at [111]-[113] below), and that the 5 January fire occurred near Mr Mason's burnt-out car but did not involve the car burning.

99. Samuel Evans was a Station Officer at ACT Fire and Rescue Service at Philip Fire Station. He had been a fire-fighter in the ACT for nine years before being promoted to a Station Officer position. He had undertaken courses in fire investigation, which included training in identifying points of origin and causes of fires.

100. At 7.45am on 5 January 2014 Mr Evans, accompanied by two other fire-fighters, responded to a report of a fire in the Yarralumla vicinity. Mr Evans parked the fire truck off Lady Denman Drive and radioed to the communication centre to say they had arrived. They could see a small plume of smoke from where they parked.

101. Mr Evans and the two other officers then took a portable fire extinguisher and walked down a fire trail to where the fire was. He could see that there had been a previous fire in the area, and there was a burnt-out car, and there was a very small active fire issuing smoke. He could see a man standing near the burnt-out car, no more than 20 metres away from the active fire, wearing a dark coat and an Akubra-style hat.

102. The other fire-fighters extinguished the active fire, and after Mr Evans had looked at both fire sites the man in the coat and hat had disappeared.

103. Mr Evans said that the active fire had covered an area of about 16m2, the flames were less than 30cm in height, and the rate of flame spread was low. There was negligible wind. Between the burnt-out car and the fire there was unburned grass.

104. Mr Evans saw a number of personal possessions in the area around the car, including clothes and some tins of food.

105. Shortly after that ACT police arrived. One of the other fire-fighters, Mr Orwin, radioed to Mr Evans that he had seen a person standing upstream from where Mr Evans was talking to police officers, and so Mr Evans and the police officers began to walk upstream. Then Mr Orwin radioed to Mr Evans that he had seen a person stand up and then duck back down out of sight. As well, a jogger using the fire trail on the other side of the river told them that he had seen a person lying in the grass.

106. Mr Evans and the police officers walked towards the area which the jogger had pointed out. Mr Evans then saw one of the police officers talking to someone who was lying in the grass. The man stood up and Mr Evans saw him taken into custody. The man was wearing a dark broad-brimmed hat and a dark coat. Mr Evans had a brief conversation with the man, saying to him: "Mate, I'm from the fire brigade. Do you know anything about this fire?" The man said, "I don't know about a fire", and that he did not know that the fire brigade had attended.

107. Mr Evans returned to the scene of the fire, where he saw a small amount of "active flame" that was spreading away from the Molonglo River towards the bike path.

108. In the area around the fire, Mr Evans saw no cooking appliances, and no formed fireplace. He did see some broken glass in the area of the active fire and also in the area of the earlier fire. However, he did not see any buckets or other vessels that could have been used to fight the fires. Nor did he see any cigarette butts.

109. Daniel Orwin was a fire-fighter with ACT Fire and Rescue. Around 7.45am on 5 January 2014, he had responded, with three other fire crew members, to a report about a possible fire near Yarralumla Creek. He had stayed with the truck, which he parked at the top of the hill, while the other crew members went down towards the fire.

110. He then heard a report from one of his crew members that someone who might have been involved in lighting the fire had been seen leaving the area. He climbed on top of the truck and used binoculars and a thermal imaging camera to look for anyone still around the area. Then he saw a male "pop up in the grass" for 15 to 25 seconds, which he immediately reported via radio to Mr Evans. Mr Orwin then guided the fire crew in the direction of the place where he had spotted the man. The next thing he saw was the police and fire crew walking through the long grass, and then he saw them escorting a man up the hill and sitting him down next to a tree. Mr Orwin said that while he was with the police the man looked relaxed and there was no tension.

111. In cross-examination, Mr Orwin gave evidence that on 20 December 2013 around 8:00pm he had attended a fire, in the same area, in which a car was engulfed in flames.

112. On that occasion, Mr Orwin said, he saw a man, of the same general description as the man he saw on 5 January 2014, lying on the ground some way up the hill between the burnt out vehicle and a fire truck parked on Lady Denman Drive. The man was wearing tight fitting jeans and boots and no shirt, and was rolling around on the ground, repeating over and over, "I'm such an idiot", and that he couldn't believe what he'd done.

113. Mr Orwin said that two of his colleagues had administered first aid to the man, while Mr Orwin tried to reassure him. He was transported to hospital by ambulance. Mr Orwin agreed that in his police statement he had described the man as "very erratic".

114. Benjamin Claughton was an ACT Ambulance Service paramedic who had been qualified for two years when he gave evidence. He had had three months experience working in the Mental Health Unit (which he undertook while training to be a nurse).

115. Around mid-morning on 5 January 2014, Mr Claughton was called to the regional watch house in the City Police Station. Mr Claughton and the nurse he was paired with arrived at the watch house shortly afterwards. Mr Claughton was introduced to Shane Mason, and examined him. He said that during the examination Mr Mason seemed anxious but otherwise relatively normal.

116. Mr Mason was complaining of chest pain, so Mr Claughton "went down [the] basic ... acute coronary syndrome pathway for anyone with ischemic chest pain", and decided to take him to Canberra Hospital for assessment.

117. He also examined Mr Mason to determine his Glasgow Coma Score (GCS), which is an assessment of a patient's level of consciousness or alertness. Mr Mason had achieved the maximum score of 15, which Mr Claughton explained meant that he was alert and oriented to day and time, had his eyes open and was willing and able to obey commands. . He explained that in assessing verbal responses, possible descriptions were "oriented, confused, ... using inappropriate words, ... making inappropriate sounds or ... no verbal at all".

118. Mr Claughton said that Mr Mason was "a little bit anxious", but was basically complaining of chest pain. He had asked Mr Mason whether he had been drinking, and Mr Mason said he had been drinking the night before, but Mr Claughton could not recall whether Mr Mason said how much he had drunk.

119. Mr Claughton said that when they transported a patient from the watch house to hospital, they would be accompanied by a police officer if the person was in custody or if the ambulance officer feared for his own safety; in this case, Mr Mason had been granted bail and Mr Claughton had no concerns for his own safety, so only Mr Mason, Mr Claughton and the other nurse were in the car.

120. He transported Mr Mason to hospital in the car. All told, he was probably with Mr Mason for about 20 minutes.

121. In January 2014 Tegan King was an Animal Care Assistant at the RSPCA in Weston Creek. Shortly before 4:30pm on 14 January 2014, she fed a black and white puppy which was being held in kennel 2. The kennel was "completely fenced over", and secured by a lock with a big padlock on it. After cleaning the kennel, she locked it, with the puppy inside. At the end of the day she placed the key in a secure box to be locked by her supervisor.

122. Frances Simpson (formerly Marsh) was employed as a senior behavioural trainer at the RSPCA. Shortly after she started work on 15 January 2014 she noticed that there was a hole in the fence of kennel 2 and that the dog was missing from the kennel. She made a note for the next staff member to come in.

123. At 7:30am the next day (16 January 2014) she was working at the RSPCA when police arrived with a black and white puppy. She believed it was the puppy that had been missing the day before. She checked the dog's microchip and confirmed that it was the dog which had previously gone missing. Ms Simpson said that the cost of buying a puppy less than six months old from the RSPCA was around $495.

124. Ms Simpson confirmed that photographs put to her showed the cage from which the dog had been removed and the damage to the cage.

125. Exhibit H includes a photograph of a dog; Ms Simpson identified the dog as the one that had gone missing and had been returned.

126. Christine Allen was employed as an animal care attendant at the RSPCA in January 2014. At 8:30am on 15 January 2014 she was cleaning kennel 2, where she found two pieces of metal (shown in several of the photographs in Exhibit H). She gave the metal pieces to her supervisor, Julie Sobey.

127. In January 2014 Julie Sobey was employed by the RSPCA as a kennel supervisor. She gave evidence that the RSPCA is surrounded by a 6-foot-high cyclone fence secured with padlocks. She said that the front gate is padlocked at night time and each of the kennels is also secured with padlocks.

128. On the morning of 15 January, Ms Marsh (Simpson) had given Ms Sobey a note saying that a dog was missing. Ms Sobey checked the kennel and had a close look at the hole, and confirmed that the dog was missing. Later that day, Ms Allen gave Ms Sobey two shards of metal that looked as if they fitted together; they had been found in the kennel. After that, Ms Sobey had contacted the police.

129. To Ms Sobey's knowledge, no-one from the RSPCA had given permission for the dog to be taken. She confirmed that it would have cost $495 to adopt the dog.

130. In cross-examination counsel established that the dog had been named "Rocky", and that after Rocky was returned to the RSPCA he had been adopted.

131. Constable Adrian Janssen was an Australian Federal Police (AFP) officer, and on 5 January 2014 he was partnered with Constable Shaun Timmiss. At 8:15am that day he and Constable Timmiss responded to a radio transmission seeking assistance in Yarralumla near the Scrivener Dam. They arrived at the scene at 8:25am, parked near the fire trucks on Lady Denman Drive and walked down to the scene of the fire.

132. Constable Janssen saw a burnt-out vehicle and a small burnt-out area to the side. Station Officer Evans told him that when the fire-fighters arrived they had seen a man leaving the area, and that one of the fire-fighters had seen him going along the riverbank.

133. He and Constable Timmiss, with Mr Evans, walked along the riverbank towards Scrivener Dam. Mr Evans received a radio transmission from Mr Orwin, who had seen a male in that area. As well, a jogger on the other side of the river had yelled out "The person is in front of you".

134. Constable Janssen went through the scrub towards the riverbank, and saw a man lying face down in the grass. The man was wearing a jacket and dark jeans and possibly had an Akubra hat on the ground next to him. He also had a leather knife sheath attached to his belt.

135. Constable Janssen asked the man to stand up, which he did, and Constable Janssen then asked him "Where's the knife? Do you have the knife or any weapons?". The man replied "No, I left the knife at the camp. I've only got the knife sheath".

136. Constable Janssen asked the man his name; he said he was Shane Mason, and his identify was able to be established using photographic identification.

137. Constable Janssen then checked the grass area where Mr Mason had been lying, and found various items, including sunglasses, a brown and silver case, and a knife. Mr Mason said the items belonged to him. In the case Constable Janssen found green vegetable matter that he suspected was cannabis (this was later confirmed by analysis).

138. At this point Constable Janssen cautioned Mr Mason to the effect that he didn't have to say or do anything; he said he had intended to, but subsequently didn't, ask Mr Mason any more questions. After that there was only "general chit chat" which he said they had when they were standing near the police vehicles up the hill.

139. Constable Janssen described Mr Mason's demeanour while they were together. He said Mr Mason was "quiet, ... well-spoken, ... able to have a general conversation quite smoothly", and that there was nothing in his behaviour that was erratic or that suggested a lack of sleep or any mental health problem. In re-examination he was asked about Mr Mason's demeanour again, and said that he was "slightly anxious, however, very calm and in terms of his talking [he] was able to hold a lucid conversation".

140. Constable Janssen identified the items shown in photographs 1-3 in Exhibit I as items found at the scene of the fire and seized, and those in photograph 4 as items taken from Mr Mason's pockets at the watch house (being keys, a lighter, money, pens, and possibly a smoking implement).

141. Constable Janssen confirmed that the area in which Mr Mason was arrested was land owned by the ACT Government).

142. He also identified another bundle of photographs as photographs of the scene of the fire, including photograph 3 which showed, on the roof of the burnt-out car, items found at the scene of the fire (the evidence is not clear whether the items were found on the car roof by fire-fighters or police or put there to be photographed). The items included a box of matches, an open packets of Vitaweats, some sliced bread and several containers of spreads that might be used on bread (or Vitaweats).

143. Shortly after 8.15am on 5 January 2014, Constable Shaun Timmiss, with Constable Janssen, responded to a report of a fire off Lady Denman Drive in Yarralumla. When they arrived at the scene, he saw fire trucks parked, and a fire fighter standing on top of one of the fire trucks pointing down towards the river, where Station Officer Evans was standing near a burnt-out car. Mr Evans told Constable Timmiss that a man wearing a hat and trench coat was still somewhere in the vicinity. The two police officers and Mr Evans then walked along the river, through long grass, looking for the man. Then a man who was walking a dog along the cycle path called out that there was a man lying in the grass about 10m from them. Constable Janssen found the man and asked him to stand up. When the man stood up, Constable Timmiss heard the man say words to the effect that "he didn't think we would find him". Constable Timmiss said that "it was apparent that he'd been hiding from us".

144. Constable Timmiss said that he saw Constable Janssen pick up a large knife from the grass. After cautioning the man, Constable Janssen asked the man what he could tell him about the knife, and the man said it was his and he had been using it for fishing. Constable Timmiss then asked the man if he knew how the fire had started, and the man said "I don't know. Maybe I threw a cigarette."

145. Constable Timmiss said that the man was "calm and polite", was talking at a normal pace, and answered all the questions. Asked about the man's body language, Constable Timmiss said:

he's 'sturdy' on his feet as he stood up. He obviously was a bit dishevelled, he looked like he'd been living down by the river for a while; but, yeah, he was stable and was quite conversant in having a conversation, understood what we were saying.

146. Constable Timmiss said he had no concerns for the man's mental health at the time.

147. After the man was taken away, Constable Timmiss went back to the scene of the fire and took a number of photographs.

148. Around 5am on 16 January 2014, Debra Rollings was walking her dogs from the area of the Yarralumla woolshed towards the pine forest across the Molonglo River. It was still dark as she neared the river, and she saw a fire on the other side of the river.

149. As she approached the footbridge over the river, Ms Rollings could see a tree, and some of the undergrowth, well alight. From a distance of about 10 metres, she could see a person on her side of the tree, and the person (who she thought was a man) appeared to be fanning the fire. The person was moving his outstretched arms, bent at the elbows, up and down, not very fast. He did this for a few seconds. She could not see if he was holding anything in his hands. Ms Rollings said that the fire appeared to be going up the tree fairly rapidly.

there was just lots of crackling and spitting of the fire. There were pine cones ... so it was just really taking off.

151. Asked about other sounds, she gave the following evidence:

Did you hear any other sounds apart from the crackling of the fire?---Not really, no it was really just the fire.

Did you hear any sound of any explosion?---Well, the pine cones go off so that was that sort of spitting and you know the pine cones explode when they get in the fire so there was sort of those little explosion sounds when the pine cones were alight so it was that kind of crackling and bang and you know.

So crackling and banging?---Yes, just of the dry timber and - - -

152. Ms Rollings yelled at the person, "What are you doing? Are you lighting a fire?" When she yelled out, the person stopped doing the fanning motion and disappeared from view. He did not re-appear. She ran up the hill closer to the fire to try to spot the person, but she could not see him and she assumed he was hiding. Ms Rollings could see the undergrowth was also alight, and she also saw a small white dog, "a bit scruffy but just as cool as a cucumber standing in front of the fire".

153. After receiving no response to her yelling, Ms Rollings said "I'm going to go call the cops", but there was still no response. She then ran home and telephoned the fire brigade.

154. Ms Rollings recalled that the day of the fire was going to be very hot, and there was no rain. When she saw the fire and the person, it was still dark, and the fire provided the main source of light. The person was silhouetted against the flames. Her head torch was no real help in seeing what was happening, because it didn't light a great distance, just what was immediately in front of her.

155. Constable Sean Evans was a police motorcyclist attached to ACT police traffic operations. He was on duty on the morning of 16 January 2014, and around 5.30am he heard a patrol being dispatched to deal with a report of "a suspicious male possibly lighting fires" in the pine forest near Cotter Road. He rode his bike north along a footpath near the river until he could see a fire around 500m away. He spoke to a cyclist on the footpath, who said that he had seen a white dog in the area.

156. Constable Evans said that when he first saw the fire it appeared to be about 10m by 10m in area and it was "climbing the canopy of that small clump of trees", and was also "still involved in the grassland immediately around it". He then rode his bike down a gully towards the concrete footbridge, and stopped on the footbridge. Exhibit O is a map of the area on which Constable Evans has marked his route from the footpath down to the footbridge.

157. Constable Evans parked his bike on the footbridge with the lights flashing, and walked closer to the fire, but when he got to within 15 or 20 metres of the fire it became too hot, so he went back to his motor bike and contacted ACT Police Operations to say that the fire brigade was needed.

158. Constable Evans then started looking in the area of the bridge for the white dog. In the shallow muddy water he saw a bicycle, a backpack, and a Drizabone or windbreaker-style jacket with singe marks on it. He got down on the river bank to look at the items, and then looked under the bridge.

159. In one of the drainage channels under the bridge he saw a man lying on his stomach. The man was half submerged, with his torso above the water on a mound of dirt, and his arms under the water. He appeared to be "[trying] to stay as flat as possible". Constable Evans said that he told the man, "I see you. This is the police. Do not move unless I tell you to do so."

160. Constable Evans was shown a photograph of the bridge, and gave the following evidence

And the drainage channels, are they depicted in that photograph?---They are. They're the holes through the bridge that you can see there.

Are you able to identify which one it was that you saw the person underneath the bridge?---I can. There's actually three although I refer to it as the second one because the first one isn't actually able to drain, the water level doesn't get that high. So the beginning of the one that you can see on the left is not what I count as number 1. The second one from the left is what I count as number 1 and the one where his bicycle was was the one that I believe he was - which is what I referred to as drainage channel number 2.

And it was that channel that he was in?---I believe so, yes.

Can you tell the court what it is you observed when you looked into that drainage hole?---Sure. I saw a male lying on his stomach or prone. His feet were facing north and his body was facing south. I was on the northern side of the bridge at the time. I saw he was lying down flat with his lower half of his body and his torso suspended above the water on a mound of dirt that was in the drainage channel. The upper half including his arms and I don't know if his face was submerged or not but his head were in the water and he was lying out prone as in to try and stay - what looked to me to try and stay as flat as possible, with his heels touching or closer together and his toes splayed outwards.

Were you able to see anything of the person from either end of the bridge?---No. He would have had to have crawled at least 30 to 60 centimetres to actually get that far into the bridge. There was still another 30 to 60 centimetres of him crawling forwards before he would have then been visible from the southern end of the bridge.

Is there anything else that you saw under the bridge there?---There is. I also saw the little white dog that the cyclists had referred to earlier, and it resembled the one that I saw from when I was speaking with the cyclist.

Did you say something at this stage?---I can't remember the words exactly, however I'll get them as close as possible. I said, "I see you. This is the police. Do not move unless I tell you to do so."

Is there anything else that you said?---Later on I told him to exit the - or to crawl forwards out of the tunnel or out of the bridge, and then further to not do anything unless I told him to do so.

161. In cross-examination Constable Evans agreed that in his written statement he had recorded that in response to his initial direction to the man, the man said "Fuck, it just exploded as I was trying to put it out." He had also recorded that the man had continued to yell words to the effect of "I was trying to put it out", and had claimed to have been asleep until woken up by a woman, after which he "tried to put it out". Constable Evans' statement was not in evidence, and the course of cross-examination was not straightforward. In the end, it appeared that the written statement recorded both of the following claims as having been made by Mr Mason:

(a) "I was asleep until that woman woke me up and then I tried to put it out".

(b) "I was sleeping and some woman woke me up. I tried to put it out and it fucking blew up".

162. Constable Evans said he then told the man to crawl forwards out of the tunnel and not to do anything else, and that the man had complied. Constable Evans then cautioned him; on request, the man identified himself as Shane Mason and gave his birth date.

163. Constable Evans said that Mr Mason was wearing boots, pants and a t-shirt, all dark-coloured, and he could see "skin that was visibly peeling and hanging off his arms from what appeared to be burns". His behaviour was erratic "as if he was in a high degree of pain". Constable Evans said that every time he spoke, Mr Mason interrupted him with grunts of pain.

164. Constable Evans had a brief conversation with Mr Mason about the dog; Mr Mason told him the dog was named Woof or Wolf (Constable Evans was not sure which name the man was saying), that it was his dog, and that he had had it for a few weeks.

165. Constable Evans called for an ambulance, and went closer to the fire. He was confident that Mr Mason "wasn't going anywhere, he was in too much pain".

166. The fire had started to spread, licking up into another set of trees. Constable Evans became concerned that it was going to spread. The heat was more intense than before, and he realised there was nothing he could do about the fire, so he returned to Mr Mason intending to try to calm him down, while he kept his burns in the river water, until medical assistance arrived. Shortly afterwards the fire brigade arrived, then more police officers and then the ambulance officers.

167. Constable Matthew Yeend also attended the scene of the 16 January fire, where he found Constable Evans standing on the bridge over the Molonglo River speaking to a man. The man was lying in the river, and was calling out in what Constable Yeend believed to be pain. The man gave his name as Shane Mason, and said that he "was in a fair amount of pain because he had attempted to put out a fire and he'd been subsequently burnt".

168. Constable Yeend asked if he could help with the burns, and Mr Mason said that the items he had in his pockets were causing him pain. Constable Yeend took several items out of Mr Mason's pockets, being a wallet, a notepad, a Bic lighter, something he described as "a Swiss Army knife in pieces", and some loose change. Constable Yeend later gave those items to Constable Rebecca Graham.

169. Mr Mason told Constable Yeend that he had been camping in the area for approximately three weeks, and that the white dog that Constable Yeend saw running around belonged to him.

170. Deborah Kruger was an ACT Ambulance paramedic. She had been working as an ambulance officer since March 2008, and had qualified as a paramedic in March 2011. As an ambulance officer, she had some experience working with people with mental health issues, having dealt with patients with schizophrenia, bipolar and other acute mental health issues.

171. At 6:25am on 16 January 2015, Ms Kruger attended the scene of the fire, where she treated Mr Mason for burns to his right arm and right buttock. In accordance with usual practice, she assessed Mr Mason over time using the GCS. She explained that the purpose of the GCS was "to identify a patient's mental capabilities, stability and also in relation to the decline or increase of GCS with head injuries", and then gave the following description of how the score is assessed, and of her assessment of Mr Mason:

So what are the kinds of things that you are assessing, taking into account the Glasgow Coma score?---So we assess the function of the eyes, whether they open spontaneously to voice the pain [sic] or they are not open at all. We also assess the verbal functioning of the patient, whether he is oriented or whether his speech is confused, inappropriate, incomprehensible or it also says "No speech" and also the motor function, as to whether the patient will obey your commands, whether he - whether they localise the pain, withdraw from pain, whether they are decorticate, decerebrate or whether there's no motor function at all.

You assess a score to each of those criteria. Is that correct?---Yes, each criteria [sic] has a number totalling to a maximum of 15. It's a minimum of three and a maximum of 15.

And what did Mr Mason score while you were treating him?---Throughout my care, it was GCS 15.

How do you make your assessment?---Again, on the patient's eye function, verbal function and motor function.

So what interactions do you have with the patient in order to be able to establish these things?---Just whether they follow our commands when [they] do what we ask and whether they agree to give us permission to perform a skill which tells me that they understand what we're going to do and also, yeah, whether they're just looking at us and interacting with us in a normal way.

When you were treating and assessing Mr Mason, can you describe what you observed about the way he was speaking to you?---Initially, Mr Mason was in a lot of pain, so he was yelling and screaming, but after I controlled the pain that he was in, he seemed to be functioning and conversing with me normally.

What about the speed which he was speaking to you? Can you give any evidence of that?---As far as [I] recall, Mr Mason and I were just having a normal conversation. It didn't appear to be, from what I can remember, of any particular increased speed.

What, if any, concerns did you have for his mental health at that time?---From what I portrayed [sic] at the time, Mr Mason appeared to be fine with his mental capacity. Patients that can be in a manic state can also be in a GCS 15.

172. Ms Kruger said in relation to Mr Mason's mental health that "he appeared fine with me".

173. In cross-examination she said that she had been with Mr Mason from her arrival at 6.25am until he was "clear[ed] off a stretcher at the hospital" at about 7.10am. That included about 15 minutes of travel in the ambulance, but Ms Kruger noted that during the travel she was "sitting right next to Mr Mason in the ambulance".

174. Constable Rebecca Graham attended the scene of the fire on 16 January 2014, arriving about 6.29am, by which time the fire had been extinguished. She took possession of the items taken from Mr Mason earlier: these were mostly as described by Constable Yeend (although what he referred to as a "Swiss Army knife in two parts" was described by Constable Graham as a "multi tool in two parts") and included a pair of brown boots which she understood had also been taken from Mr Mason.

175. Constable Graham arranged for the small white dog to be taken to the RSPCA.

176. She later obtained a copy of the declaration of 16 January 2014 as a total fire ban day and a letter from the Environment and Sustainable Development Directorate relating to ownership of the land where the fire took place, and arranged for the production of a map of the area.

177. Constable Graham understood that Mr Mason had been taken to Canberra Hospital and then transferred to Concord Hospital in Sydney, and that he had been discharged from that hospital on 18 January 2014.

178. Richard Woods was a superintendent at the ACT Rural Fire Service with 38 years' experience in the ACT and NSW as a firefighter. He had had, and delivered, training in wildfire investigation (including in Europe and the United States) and also had experience in that area, including being in charge of wildfire investigation for the NSW Rural Fire Service for nine years until 2009.

179. Early on 16 January 2014 Mr Woods was informed about the fire, and around 9.00am he reached the scene, to find that the fire had already been extinguished, using a lot of water as well as foam. The burnt-out area was "very small", being around 20m by 20m (400m2). A map showing the perimeter of the fire area was produced by his department.

180. A senior constable and a forensic services police camera officer were also at the fire scene. A short video of the fire being extinguished was in evidence.

181. Mr Woods said that the fire was of low intensity, and that this was because the temperature at that time of day would have been fairly low and the humidity would have been fairly high. Although the fire had not been burning at a high intensity, he believed from the fact that it had not spread very far that the fire had not been burning for very long. He noted that the application of water and foam to ensure the fire was properly extinguished had disturbed a lot of the "micro indicators", which provide evidence of the effects of fire and heat on vegetation and other items in the area.

182. However, from char makings on the trees he could tell that the fire had burned up to the roadway rather than down from the roadway, and therefore that the lower section of the burnt area was where the fire would have been ignited.

183. Mr Woods said he had examined the scene of the fire and could not find anything relating to any of the common identified causes of fire (explained at [186] and [198] below). He said:

Apart from the immediate fire area, there was no other evidence relating to, for instance, an accidental cause, being caused by things such as machinery use. There was no evidence of debris burning, which is, again, a common cause of wildfire, which is where there's been prescribed fire that might have been lit to reduce fuel levels and it's escaped. There was no evidence of that. There was no evidence of juvenile activity in the area; again, a common and a recognised cause of fire. And given the day of the fire and the time of the fire, I wouldn't expect to have found that. Certainly in relation to lightning strikes, no evidence in the immediate fire area of a lightning strike, and, again, another cause being cigarette cause. Often cigarettes are mistakenly identified as fire cause in wildfires, but the conditions that have to exist for a cigarette to cause a fire are very specific and they certainly relate to weather, so the temperature must be at least 26 degrees Celsius or greater, humidity has to be less than 22 per cent, and the fine dead fuel moisture content, and that's the very fine fuels where a fire will actually initially ignite, has to be less than 14 per cent. Now, when I look at the conditions that were there at the time, knowing the weather conditions would have been very benign, as in mild conditions and high humidity, those sort of conditions wouldn't have been present for a cigarette to ignite a fire.

184. Asked specifically about evidence of a campfire, Mr Woods said:

What evidence of, for example, a camp fire did you find?---Again, I would have expected to see if someone was camping in that area, there would be something more formal with perhaps a defined area of a campfire that was separated from the surrounding fuels to prohibit it from escaping, perhaps some camping equipment in the immediate vicinity and the like. In viewing the fire area itself, you know, it certainly had some large tree heads and some downed heavy timber. It wouldn't be the sort of area that I would assume someone would go and light a campfire in, given the fuel conditions that would have been there at the time.

Was there any evidence you found of campfire activity in the vicinity of that fire?---I'm aware that there was some items that were recovered by police prior to my arrival in relation to clothing and the like, but there was nothing in the immediate vicinity of the fire.

185. Accordingly, he said, he had ruled out a campfire as the cause of the fire "based on the lack of immediate indicators there".

186. Mr Woods explained that his investigation involved trying to exclude common causes of wildfire. He repeated his evidence that the fire had not been caused by:

(a) lightning strike;

(b) a campfire;

(c) smoking or cigarette butts;

(d) burning debris;

(e) equipment use;

(f) juvenile activity;

(g) rail or power lines.

187. Mr Woods said that another possible cause is described as "miscellaneous", which includes power lines and glass refraction of sunlight. He regarded glass refraction as unlikely in the circumstances, including because he saw no glass present at the scene of the fire.

188. Mr Woods then said that the only category of cause not yet referred to was "deliberate", which in his opinion was the cause of the fire concerned.

189. Mr Woods said that fires don't start in grasslands without "a competent ignition source", and briefly explained the process of spontaneous combustion in haystacks. Asked about glass refraction, he gave the following evidence:

... for the circumstances to all line up it needs to be very specific, that is, the bottle or the glass item needs to be at a certain angle, the sunlight therefore needs to be at a certain angle to then have a magnification effect through the glass, then the glass itself needs to be a distance from the fuel obviously to have that magnification to be successful. For all those conditions then to line up, particularly in relation to the fuel itself, the fuel itself needs to obviously have a very low fuel moisture content in those circumstances.

190. Mr Woods was shown photograph 4 from Exhibit K (relating to the 5 January fire) which showed part of the burnt area beside the river and the unburnt area between the burnt area and the burnt-out car. He said that the extensive area of unburnt grass vegetation suggested to him:

that the fuel moisture content in that vicinity was fairly high, so the curing of the grass ... particularly given the location close to the riverbank, would have been fairly low.

191. Having regard to his view about the moisture content of the grass, and the time around which the fire had started, Mr Woods did not think that glass refraction would have been the cause of the first fire.

192. Mr Woods said that there was no category of wildfire cause identified as "accidental".

193. Mr Woods explained the factors considered in deciding whether to declare a total fire ban (which had been declared for the day of the second fire), and said that in the conditions generating a total fire ban:

the ability to control or extinguish a fire is very limited, and essentially those weather conditions can produce a significant fire if it's not extinguished quickly.

194. Mr Woods said that he didn't believe that, on the day of the second fire, and in the area concerned, an accelerant would have been needed to start the fire. There was nothing he saw that suggested there had been an explosion. For instance, there was no "modification of the vegetation", no fractured limbs from trees, and no displaced ground. He believed that if there had been an explosion, "some of those items would have been expelled out of the fire area".

195. Mr Woods said that in his experience pine tree sap is not an accelerant, and is not a flammable item, although he said it would burn under high temperature conditions. He did not believe that the intensity of the fire would have ignited sap from any tree.

196. In cross-examination Mr Woods was asked about his evidence of "the absence of campfire activity". He explained that he would have expected to see a cleared area around the campfire site, as well as "a campfire ring made of rocks or something similar". Pressed about how he would be able to identify a cleared area after the fire, he eventually referred to expecting to see:

areas of soil that had been moved or removed from that area, and there may well have been shrubs and other things that had been removed from that area and placed elsewhere outside the area of the campfire.

197. Mr Woods agreed that his expectation that a person building a campfire would clear the area around the fire assumed a person sensible enough to take appropriate precautions. He also agreed that his assumption that a campfire would be indicated by a ring of rocks required a presumption that the person lighting the campfire would be sensible enough to take the precaution of setting up a ring of rocks to separate the fire from other fuel in the area. He said that in the absence of a cleared area or a ring of rocks, another indication of a campfire might be evidence of nearby vegetation that had been "modified" (for instance with a chainsaw or an axe) to provide fuel. He had seen no evidence of any such modifications of the vegetation.

198. Mr Woods explained that the categories of fire causes that he had applied had been based on the work of a wildfire investigation working group and included in training modules used in Australia, New Zealand, Canada and the United States. He gave the following evidence about the use of the "deliberate" category:

If I was walking through this area with some sort of ignition source in my hand and I accidentally dropped it, I don't know, a match or a torch, if I was doing an Olympic leg, and I dropped the torch accidentally and a fire started, if you're working back from the scene, what category would you place that fire in?---Under those circumstances, I would have to take into account the intent and obviously, from my perspective, I look at the fire scene and I would identify at the origin any evidence and, therefore, if you're suggesting if a match was dropped, I could then find the match. Now, the motive behind the dropping of that match is obviously dependent on other investigations.

But it would go in the deliberate file, presumably, if you couldn't find the match or even if you could?---My opinion at that point would be deliberate, and then the investigation of the circumstances of the fire would then provide some more information to me.

199. Mr Woods said he had not been able to narrow down the point of ignition of the 16 January fire. He said that in a low intensity fire as this one was, he would not have expected any significant noise, and explained that in a high intensity fire the ignition of volatile gases would sound like explosions; in this case, however, the "remnant vegetation" in the outer edges of the fire had not been totally consumed, which suggested that the "scorch height" had been low and therefore that the fire intensity had been low.

200. Roanna Trebilcock was a Crime Scene Investigator with the AFP. She had a variety of relevant qualifications including a Certificate IV in forensic investigation from the Canberra Institute of Technology. She had also attended some courses in fire investigation. At the time of the trial she had attended more than 20 crime scenes involving fires, but only two involving bushfires.

201. On 16 January 2014 Ms Trebilcock arrived at the scene of the fire around 8am, and took some photographs, which she explained.

202. The photographs showed possessions of Mr Mason's which had been found on or near the concrete bridge (referred to in some evidence as a causeway) under which Mr Mason was found lying in the water on 16 January. Photograph 16 shows a bicycle in the river with a jacket over it. Photograph 21 is the jacket, which had what seemed to be fire damage to the lining. Photograph 29 shows a swag which was found on a rock in the middle of the river. Photographs 30 to 34 and 39 to 44 show the swag, including after it was unrolled, and photographs 35 to 38 show particular contents of the swag. The location of those possessions is consistent with Mr Mason having been camping close to the scene of the 16 January fire at the time of that fire.

203. As well as taking photographs, Ms Trebilcock searched the vicinity of the burnt area looking for "anything that looked like it didn't belong". She also took note of anything that might have been used to start the fire, and any "odours of accelerant". She found nothing, apart from the items that had been found on the bridge and photographed as described.

204. Ms Trebilcock explained that the area of the fire had been disturbed by the action taken to suppress the fire, so that the particular area where the fire might have started "was not overly evident", and the ground around the fire had already been dug up during the process of suppressing the fire.

205. Ms Trebilcock was asked about the various possible causes of fire that had been mentioned by Mr Woods: she said she had found no evidence that the fire had been caused by lightning; no sign of a cigarette (although conceding that she could not exclude the fire having been caused by a cigarette); no sign of a campfire; and no evidence of an electrical cause for the fire (there were no overhead power lines, no electrical appliances, and no source of electricity). Eliminating all those other causes left two possible categories of causes, described as "incendiary" (referring to a deliberate fire) and "accidental". Both of those possibilities would have involved "an introduction of an ignition source to the scene".

206. In cross-examination, Ms Trebilcock explained that some trees were cut by fire-fighters, using chainsaws, in order to suppress the fire. Evidence of this is shown in photographs 49 and 50 of Exhibit V. As well, she said, the fire-fighters had moved the layer of pine needles in the area of the fire to ensure that they were not smouldering.

207. Ms Trebilcock had conducted a "fracture fit examination" of a multi-tool found at the scene of the 16 January fire and two other flat pieces of metal obtained from another location by another person involved in the investigation. All these items are shown in photographs taken by Ms Trebilcock. Ms Trebilcock opined that the two items from the other location had been part of the multi-tool. The ninth photograph in Exhibit W shows the three different items lined up to show how they would have fitted together: in short, the two items found separately from the multi-tool appear to be parts of a blade of the multi-tool that has broken off the tool near the base of the blade. Other photographs show in more detail the exact alignment of the designs on both sides of the three separate pieces of metal.

208. Dr Barker was a consultant psychiatrist employed in the Forensic Mental Health Service. In March 2014 he was asked to prepare a report about Mr Mason, and interviewed him on 4 March 2014 about the fires. Dr Barker was called both as an ordinary witness to give evidence of what Mr Mason had said to him about the two incidents (which he did on day 3 of the trial), and also as an expert witness to give evidence about Mr Mason's mental condition (this was done on day 5, after his expert evidence had been deferred to allow Dr Allnutt to be interposed).

209. Asked about the events of 5 January, Mr Mason made comments recorded by Dr Barker as follows:

I woke from daylight, as I do ... I didn't want to eat the frozen steaks my mate had given me from the night before ... I grabbed my fishing rod ... I thought, "Fuck it, I've been watching these fish for two weeks off and on" ... I thought, "I'll go and have a cigarette."

So I've lent over the bridge, I've caught this guy out of the corner of my eye. I couldn't even identify him ... and then I'm on the bridge and this jogger came from Woden way ... and she goes "What's that fire?" ... and I go, "That's not a bloody fire" ... and I went down there as fast as I could and I put it out.

But then I thought, "Fuck it, it's out."

And then I saw the fire brigade, and due to living on the street ... I thought, "Fuck this, I've had enough of police" ... I thought, "Fuck this, I'm out of here" ... and I had my big hunting knife because I was on my way to Lake Eucumbene.

210. Mr Mason's comments about the incident on 16 January 2014 were recorded by Dr Barker as follows:

I woke up at approximately 4-4.30am and I heard a shout "Fire!". And I stood up and I saw a fire burning, so I thought, "Do the right thing, put it out".

It was 100 to 120 metres away on the other side of the river.

It's gotten bigger and bigger and so I'm trying to put it out ... and I'm using the branches to try and put it out.

So I've taken my duster off and I'll use the old theory of put the blanket on the fire, and I thought, "I can't put it out," and then I thought, "Oh no, my coat is in fire".

Next minute, I didn't know what's happened ... I thought a jerry can or something was under the leaf litter ... it's burnt me from the armpit to the wrist ... it blew me up in the air ... an old guy in Concord, he told me it was the sap.

Mr Mason stated that he then ran into the water "[T]o put the fire out. I've tripped on the rocks, fell down, and I thought, 'Fuck off. Oh well, the cops are here and I need medical attention'".

Mr Mason stated that he then waited in the water for a police officer that had attended the scene "To come down, I waited where I was", and that he had been expecting that he would "get medical attention, and the fire brigade would put the fire out".

211. Dr Barker said that Mr Mason had also indicated that he thought the charges against him were unfair and unreasonable.

212. Dr Barker's curriculum vitae was exhibited without objection. He had prepared two reports about Mr Mason, dated 18 March 2014 and 6 July 2015. Mr Mason had not been a patient of his.

213. In his 2015 report, Dr Barker had expressed a view about Mr Mason's mental state at 16 January 2014, but had said nothing about his mental state any earlier. It seems that, after writing his 2014 report, he had received the clinical notes from Concord Hospital, which had enabled him to provide a supplementary report (by implication, about the period shortly before Mr Mason's admission to Concord Hospital but not about the period around the 5 January fire). He maintained the opinions he had previously expressed about that earlier period.

214. Dr Barker described making a clinical judgment about a person's mental state after:

(a) examining the person;

(b) determining their symptomatology;

(c) obtaining information from a range of collateral sources; and

(d) looking at a person's clinical history over a number of years and trying to understand "where in that trajectory of their illness they may be at any given time".

Bipolar disorder which used to be known many years ago as manic depressive disorder is an illness usually characterised by episodes of depressed mood so people feeling very low and depressed and miserable and then other periods where they have what we call manic or hypomanic episodes where they are elevated where they are essentially in a mood state that is above the normal. Usually they are feeling quite happy although occasionally some people can experience states where instead of feeling happy and elated, they can actually become quite irritable and people that have bipolar disorder may experience either of those two states. More frequently they will tend to experience periods of depression rather than periods of elevated mood and then at other periods of time, they may have normal periods of mood so it's not necessary that they have to be in one of the two states so that is essentially a broad background to what bipolar disorder is. A mixed state which is less common than either being depressed or manic or hypomanic is essentially a state where a person is experiencing features of both a depressed mood and elevated mood simultaneously which can occur at times, particularly if the person is receiving some sort of treatment which is not optimal or if their condition may be clouded by other issues, such as substance use, but there are other times when a person can experienced a mixed state without any of these factors being present.

216. Asked about the significance of the GCS, Dr Barker said:

In and of itself it doesn't provide a great deal of information as to someone's mental state. It can provide some clues, particularly, some of the individual elements of the Glasgow Coma Scale. Say, for example, if a person was described as being incomprehensible, one of the items looks at the person's speech. That may refer to somebody being in an elevated state and being able to - you know - speaking quite quickly to the point where they are incomprehensible. On the other hand there may be a whole range of reasons the person may be incomprehensible that may have nothing to do with them at that stage. So it may give a clue but it's not determinative one way or the other.

217. Dr Barker said that in the Concord Hospital notes he found references to a number of symptoms mentioned by hospital staff that raised the likelihood that Mr Mason was experiencing "a degree of mood disturbance during his hospital admission"; Dr Barker saw those symptoms as indicating a "mixed episode"; these were listed at pages 1 and 2 of his 2015 report, as follows:

16 January 2014 - Nursing entry:

Very talkative (wouldn't stop speaking).

Alert, conversant, bouts of mood swings, tearful then jolly then upset.

17 January 2014 - Nursing entry:

When awake [patient's] emotions very labile. One minute singing & laughing next minute crying.

17 January 2014 - Dietitian entry:

[Patient] very talkative.

17 January 2014 - Physiotherapist entry:

Talkative, emotionally labile, crying and laughing at times.

218. Dr Barker agreed that some of Mr Mason's symptoms could have been caused by things other than bipolar disorder. He mentioned the two anaesthetic drugs (Propofol and Fentanyl) that had been administered to Mr Mason, and said that sometimes people show "rather unusual behaviour and unusual mood states" after anaesthesia, which usually wears off after a number of hours. He suggested that the anaesthetics might have explained some of Mr Mason's behaviour on the first day at the hospital, but probably were not sufficient to explain his behaviour throughout his admission to Concord Hospital. He said that it was also possible that Mr Mason was intoxicated when he arrived at Concord Hospital, or that he could have been experiencing symptoms of alcohol withdrawal or cannabis use.

219. Dr Barker said that in concluding that Mr Mason was suffering a "mixed episode", he had taken account of the notes made by the Concord Hospital psychiatric registrar, Dr Lee, as well as the notes from other clinicians who had seen him during his stay and had recorded contemporaneous observations of his progress. He noted that:

... the nurses that saw him [, the] dietician, the physio and so on had all recorded features that were consistent with the mixed episode which certainly must have been prominent enough for them to actually ... make note of it. They're not generally consistent with the sorts of records that they would ordinarily make. So there must have been something out of the ordinary for them to record these features.

220. Dr Barker explained that the material available to him, including the observations from Dr Lee, "doesn't exclude [Mr Mason experiencing] an episode of mild to moderate severity".

221. Dr Barker's first report recorded that Mr Mason had been assessed at the request of the Chief Magistrate, but he said that the relevant documentation did not show why the Forensic Mental Health Services assessment had been sought. However, he said, the usual reason would have been that someone (whether police, the staff in the cells, or even a Magistrate) was concerned about Mr Mason while he was in custody. The recommendations of that assessment were that Mr Mason did not require immediate treatment or care in hospital (a direct reference to the criteria set out in s 309 of the Crimes Act 1900 (ACT) which sets out a magistrate's power to refer a person for assessment), but the assessment also suggested that Mr Mason could be followed up by the crisis assessment and triage team, continue to work with Directions ACT (a drug and alcohol service), and follow up with his general practitioner to continue prescribed medication.

222. Dr Barker noted that whether Mr Mason had engaged in the conduct charged was a matter for the court, but said that in case the conclusion was that Mr Mason had done so, he had provided in his report opinions relevant to s 28 of the Criminal Code. He opined that Mr Mason would have known the nature and quality of his conduct (which was commonly the case for mentally impaired people), but the issue would come down to whether or not Mr Mason had known that his conduct was wrongful.

223. He noted that the exculpatory account of the fires that Mr Mason provided to him was consistent with accounts given to several of the first responders, to Concord Hospital staff, and to Dr Allnutt. He said that if this account had been a lie, then it would suggest that at some level, and from around the time of the fires, Mr Mason was aware that what he was doing was wrong.

224. In cross-examination, Dr Barker said that a person who suffered bipolar disorder would have periods without any symptoms of mania, hypomania or depression, which explained its description as a "relapsing and remitting" illness. "Relapse", he said, referred to a relapse into any one of the three states, or into a "mixed state" episode. There were "a whole range of triggers" for relapse, among them stressful life events, sleep deprivation, substance use, and non-compliance with medication. Dr Barker could not rule out "seasonal change" as a trigger.

225. Dr Barker said that a manic episode would usually involve a change in the behaviour of the sufferer, and often, but not necessarily, a change in energy levels as well as reduced sleep. It would not be surprising for a sufferer to be "staying up very late or wandering around at 3 or 4 o'clock in the morning". Irritability might be a feature of a manic state. However, he did not agree that people suffering mania are necessarily "insightless", saying that they usually have some awareness that they are in a manic phase but may not have a full appreciation of it. Dr Barker said that such persons would generally be very much aware of their immediate physical circumstances, although their judgments about why things were happening might be less clear.

226. Dr Barker said that a person with extensive experience of manic episodes and their consequences, including medical treatment and hospitalisation, might come to understand the kind of treatment that is necessary, but that some sufferers can be "highly refractory" to treatment. When a person is manic (as distinct from hypomanic), this would usually be evident to persons around them but, Dr Barker said, some sufferers are aware that they are not presenting in a normal way and are able to contain their behaviour for some hours, and present as if they are in a normal mood state; this is often motivated by a desire to leave hospital rather than being detained. Dr Barker agreed that people accustomed to losing their liberty as a result of the authorities knowing of their condition might be motivated to hide their condition as far as possible; he said that "an astute clinician" would usually be aware of that possibility and would arrange for a person to be kept in hospital for an extended period of observation, after which "a degree of irritability would often start to surface and ... other features would become more evident".

227. Dr Barker was aware that Mr Mason had been treated several times with Epilim, and said that for most people with bipolar disorder it was desirable to continue with their medication during periods of remission. In an acute mood episode, a sufferer would usually require increased medication. If a person's usual medication was suddenly withdrawn, that could precipitate, or contribute to, an acute episode. Without medication, a manic episode could last for months.

228. Dr Barker had seen the ACT Health Service records relating to Mr Mason's hospitalisation in December 2013. He understood that Dr Allnutt had interpreted the notes as indicating that the practitioners who assessed him in that period had attributed Mr Mason's issues to alcoholism rather than to his bipolar condition. Dr Barker did not entirely agree with Dr Allnutt's opinion, saying that some of the junior clinicians might have made such an error but he thought that the more experienced clinicians considered that there might have been features of a mild mood disturbance but that alcohol was a more prominent issue. He agreed that some of the notes suggested that Mr Mason was a problematic patient to manage, that he was offensive on occasions, and that on one occasion he ran away and was caught outside.

229. Dr Barker agreed that the notes indicated that there had been attempts at follow-up contact after Mr Mason was discharged from hospital, and that several people had reported to the hospital authorities their concerns that Mr Mason was "mentally unwell", including a "Sharon" (an ex-partner), and Mr Mason's son. Dr Barker agreed that the documentation suggested the possibility that Mr Mason was moving into a manic phase, but said that it didn't clarify, at least for him, whether that was due to alcohol abuse or a bipolar episode, or both (a combination of which, he said, was not uncommon).

(a) with the diagnosis of Mr Mason as suffering from bipolar disorder;

(b) that it would be appropriate for him to take medication to control it; and

(c) that Epilim (a trade name for sodium valproate), which he had been prescribed, could have been an appropriate medication.

231. Dr Barker was reminded that Dr Allnutt had criticised Dr Lee's notes of his assessment of Mr Mason at Concord Hospital: Dr Allnutt had suggested that Dr Lee had not conducted a full psychiatric assessment. Dr Barker said that the notes suggested that there had been some degree of assessment, but agreed that they were "less than ideal". He said that in a hospital system, staff were usually under considerable pressure, and tended to focus on addressing specific issues, so Dr Lee might have been called in to give an opinion about particular issues Mr Mason was demonstrating on the ward. Dr Barker said that Mr Mason did have some behavioural difficulties, and that staff may have attributed these to alcohol. Ideally, he said, the notes would have started with the reason for referral to Dr Lee. However, Dr Barker said, as they stand, the contents of the notes neither rule in nor rule out bipolar disorder, although they do rule out "any sort of gross disturbance in mental state", which would have been observed and recorded even if the assessment had been focussed on alcohol-related issues.

232. After Mr Mason returned from Concord Hospital, he was remanded in custody and was seen by Dr Kasinathan, who recommended treatment with Epilim. Dr Barker suspected that Mr Mason should probably have been on that medication earlier, although he could not say exactly when it should have been commenced, and concluded that Mr Mason should ideally have been continued on the medication throughout the entire period, "even if just for prophylaxis of a mood state". Dr Barker said when Mr Mason was seen in custody after his return from Concord hospital, "it was quite clear ... that he was experiencing a manic episode and needed treatment".

233. According to the hospital notes, while Mr Mason was in hospital at some time before 6 January, he had asked to be put onto Olanzapine; there were some difficulties with this, and apparently discussion about whether his dose of Epilim should be increased. Dr Barker said that it might be appropriate to vary doses depending on a person's state, with a lower dose required when the person is stable and a higher dose when he or she is more unwell.

234. Dr Barker agreed that it was difficult to assess Mr Mason's mental state in the absence of any assistance from Mr Mason about his motivation for his actions.

235. Dr Barker considered that, if he had in fact set the second fire, Mr Mason would meet the criteria for suffering a mental impairment at the time of that fire, but did not at that point feel able to say on the balance of probabilities that Mr Mason was suffering a mental impairment at the time of the first fire.

236. Dr Barker was asked about the grounds identified by Dr Allnutt (at p 10 of his report at Exhibit 1) for his conclusion that Mr Mason was suffering a mental impairment at the time of the alleged offences.

(a) Documented psychiatric history of bipolar affective disorder and schizoaffective disorder: Dr Barker did not dispute that Mr Mason had a documented diagnosis of bipolar disorder, but said that his understanding of the legal test was that it did not relate to a diagnosis as such but to whether, at any given time, the person was unwell, and if so, how unwell. The absence of any useful documentation of Mr Mason's dealings with the hospital after the 6 January fire meant that his condition at that point was much less clear. Dr Barker said that he disagreed to some extent with Dr Allnutt's diagnosis of bipolar affective disorder or schizoaffective disorder, in that he favoured the bipolar affective disorder diagnosis, but did not think that difference of opinion was significant.

(b) Evidence of deterioration in mental state leading up to alleged offending: Dr Barker said that a deterioration in social functioning would not be an indicator of a deterioration in mental state but a possible consequence of it, and a bipolar or manic episode is simply one of the many reasons for such a deterioration. However, such a deterioration would be consistent with a bipolar episode.

(c) Persistence of alcohol consumption likely in significant amounts; at times using cannabis: Dr Barker said that many of the features of the first alleged offence could have been related to significant alcohol consumption or cannabis use, or to bipolar disorder.

(d) Admission to psychiatric hospital with disturbed thought processes at period close to alleged offending: Dr Barker was not sure whether this reference in Dr Allnutt's report was to Mr Mason's admissions before the 5 January fire or after the 16 January fire.

(e) Mr Mason's subjective report of symptoms: Before he saw Dr Allnutt's report, Dr Barker had not had access to Mr Mason's report of his symptoms, and when Dr Barker had spoken to Mr Mason, his account was that he had not set the fires, which left little scope for exploring his mental state in greater detail.

237. Dr Barker said that if he assumed that what Mr Mason had told Dr Allnutt about his experiences at the relevant times was true and correct, he would probably change his opinion about whether Mr Mason had a mental impairment at the time of the first alleged offence and accept that it was likely that he did have a mental impairment at that time. In re-examination, Dr Barker said that this opinion also assumed that Mr Mason's symptoms were not caused by alcohol consumption (which was in any case not likely, because he thought that alcohol of itself would not produce psychotic symptoms) or by cannabis use.

238. Dr Barker agreed with Dr Allnutt that at the relevant times, Mr Mason would have known the nature and quality of his conduct, and would also have had the ability to control his conduct.

the currently available information does not indicate a link between Mr Mason's mental illness and the alleged offending conduct. However, the decision as to whether Mr Mason actually did engage in the alleged offending conduct is ultimately a matter to [be] determined by the trier of fact. Should the Court determine that Mr Mason did engage in the alleged offending conduct, then it is possible such conduct would have been related to his mental illness. If such a determination is made then I consider that it would be likely that Mr Mason would have known the nature and quality of the offending conduct. I also consider that it is likely that he would have known whether his conduct was wrong in that he would have been able to reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong. With regard to the meaning of the term "moderate" in this context I am informed by Refshauge J in R v Barker [2014] ACTSC 153 at [85] who stated:

In my view, a moderate degree of sense and composure means something more than a basic degree and something less than a perfect degree.

I consider that whilst Mr Mason's ability to reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong, would have been less than perfect, it would have nonetheless been more than basic. I also consider that his ability to control his conduct would have been impaired to some extent, although I do not consider that his ability to control his conduct would have been so substantially impaired that he had no ability to control his conduct.

240. Dr Barker said that people with bipolar disorder:

do retain a degree of reasoning and judgment and awareness of what is going on around them and what is right and what is wrong, but the difficulty is more in the sense of how they are being influenced by their mental state to act in a certain way and they can certainly be influenced very strongly but ... they can still make a determination between what is right and what is wrong although that is then much more difficult than say for a person in normal health.

241. He noted that if Mr Mason's account of the second fire was determined to be untrue, that suggested that he:

had the presence of mind to devise a rather exculpatory account within a short period of time after what must have been an extraordinarily emotional experience, particularly given that he suffered significant burns which then necessitated his transport to a specialist burns unit.

242. Dr Barker noted that it would at least make him consider that Mr Mason had a "more than basic understanding of what was happening" if Mr Mason had managed to devise the exculpatory account, provide it to the ambulance officer, and then sustain the account for an extended period during his transfer to and treatment at Concord Hospital.

243. Dr Barker was later recalled for further cross-examination. He said that he interviewed Mr Mason in the Alexander Maconochie Centre (AMC) to prepare the report ordered by the Chief Magistrate, and at the time he was generally aware of how long Mr Mason had been there. He was also aware that Mr Mason had seen consultant psychiatrist Dr Kasinathan, who had begun treating him. Although he had not been given any specific indication of the purpose of the report, he said that such reports "tend to cover any mental health issues that would be of assistance to the court".

244. In summary, Dr Barker agreed with Dr Allnutt that Mr Mason suffered from a mental impairment (while favouring the bipolar disorder diagnosis), and also agreed that, if what Mr Mason had told Dr Allnutt was true, Mr Mason was probably affected by that mental impairment at the time of each of the January fires.

245. Mr Mason is by trade a carpenter and handyman specialising in office fitout, but he was not working at the time of the trial. In late 2013 he had been doing maintenance work, and was living in his ex-wife's garage. He and his ex-wife had three children, and they had separated some years previously.

246. Mr Mason claimed to have had an undiagnosed manic attack in 1997, but said that he had been first diagnosed with a bipolar disorder in 1999, and in 2000 had what he described as "a massive manic attack [which] basically destroyed [his] life". He estimated that he had spent time in ACT mental health facilities on at least 10 occasions, including one involving a stay of "up to three months off and on", and others involving stays of a month or less.

247. In November 2013 Mr Mason had been hospitalised in a mental health facility. At that time he had been working for a firm that did general maintenance on rental properties, and living in his ex-wife's garage. His employment had been terminated on 19 December after he "became unwell at the Kaleen shops and cost [his] boss a big contract". Mr Mason said that his boss:

said I was not functioning properly and he hated to dismiss me because he liked my work, but he could no longer take the risk that this may re-occur.

248. After losing his job, Mr Mason had returned the company van he had been driving, and only had access to his own car. However, when he was clearing out the van, he had "apparently [been] making too much noise", and his ex-wife had evicted him and had called police. Then, he said:

I put a lot of things in the car and shoved the rest in the garage and decided I'd go camping.

(a) that, among other things, he had been taking Epilim for his bipolar disorder;

(b) that he hadn't taken it regularly before being hospitalised in November; but

(c) that after he left hospital he was taking it as he should.

250. After leaving his ex-wife's home (apparently on 20 December), he had got some groceries and gone to Scrivener Dam, where it was "nice and peaceful". His plan was to "Do a bit of fishing and then after Christmas to head up to Lake Eucumbene". He had a swag in his car, and proposed to sleep in that, beside his car. As well, he had a variety of equipment including a tool bag, along with camping gear, a compound bow and fishing gear. He also had all his medication.

251. Mr Mason explained that he had moved his car to get it closer to the river, but the back wheel slipped off an embankment and the car was then bogged. It was too hot to work on getting it out, so he had a couple of beers and a small bourbon and listened to music from the car stereo. After some time he realised that this risked flattening the car battery, so he turned on the engine and ran the engine for around 15 minutes, at 1500 to 2000 revs. When he switched off the engine, he noticed a stream of black smoke coming from the front of the car. He believed that the grass had been ignited by the exhaust manifold. Mr Mason made ineffective attempts to extinguish the fire (including by throwing beer onto it), but quickly realised that the fire had spread and the car "was going to blow up", so he ran. He did not have time to get anything out of his car, including his medication.

252. The fire brigade arrived but, in Mr Mason's words, "They seemed to just sit there and watch it". An ambulance came and took him to Canberra Hospital. He did not stay there long: he said:

When I realised they were taking me to the psychiatric ward I took a quick left and it took five of them to hold me off the ground. And then I just lay on the bed in the psychiatric ward and they let me out at about 10.00 o'clock that night.

253. Mr Mason said that he was angry when he was at the hospital because he had wanted to go back to the car to see if there was anything left. After he was released, he went to the Southern Cross Club. He had "probably two beers" and then caught a taxi back to Scrivener Dam, arriving about 11.30pm.

254. Back near the dam, he managed to find a small survival kit and a sleeping bag, which had been thrown out of his car some time before the fire. He had also retrieved a mobile phone, although it broke shortly afterwards, and he did have his wallet. Two or three days later a friend lent him a swag containing two sleeping bags.

255. Over the next few days he slept in various locations, including under what he described as the Hindmarsh Drive bridge, and spent much of each day walking, and some time "in the mall", but was getting "kicked out of the shops". At some point he obtained a bicycle from "someone from the city". He remembered that at least once during that period police took him to the Canberra Hospital. Very early in January he moved back to the footbridge area near Scrivener Dam where his car had been burned.

256. Mr Mason agreed that after 20 December, he had been drinking probably each day, and "looking back now", thought he was drinking quite a lot, although, he said, he was "drinking pretty much most of the day a little bit but not getting so much drunk". After his car was burnt he had no alcohol left, but he bought more.

257. After he went back to camp near his burnt car, Mr Mason went into the city from time to time during the day. On 4 January, he dropped in on a friend, Mick Brasser, in Lyons. There he had "quite a few drinks", and then Mr Brasser took him to Joe Lopez's place, where he had more to drink and some marijuana. Later, Mr Brasser dropped him back to the location of his car. Asked about his state of intoxication, Mr Mason said "I wasn't very good at all, from what I recollect".

258. On the morning of 5 January, Mr Mason said, he woke up under the footbridge, at a spot which he said was about 100 m from his burnt-out car. He went onto the footbridge and looked out over the water. About an hour after he woke up, he could see a bit of smoke coming from down near his burnt-out car. A jogger came along yelling out something about smoke and fire, and Mr Mason said "That's not a bloody fire" and something about "Don't be a do-gooder. I'll run down and I'll put it out". He said he ran down and started stomping it out, and then noticed the fire brigade pull up.

259. Mr Mason said that due to his frequent contacts with police, he hid from police. He said that although he didn't think he was in trouble, he didn't want to be in trouble, and he didn't want to go into the "mental health place", so he hid. He remembered a fire-fighter hopping up over the tall grass, he heard someone shout out from across the river, then a couple of policemen were on top of him.

260. Mr Mason said the area where he had stomped on the fire was less than 20 metres away from his burnt-out car. He had no recollection of doing anything in the area that might have resulted in grass or something else catching fire.

261. Mr Mason said he was then taken to the police station, where he spent the rest of the day and part of the night. At the police station he had something to eat and suffered severe heartburn, but he thought it was chest pain and was taken to hospital in an ambulance. He thought he only spent a night there, and could not remember getting any medication. He believed that before this he had last taken his medication on either 19 or 20 December.

262. When he was released from hospital, Mr Mason went back to where his swag was under the bridge. His fishing rod was gone. At some point after that he headed down the river to where there was more shelter from the sun, and slept "near the causeway on the eastern side in a sink hole that was dry at the time".

263. Somewhere between then and the night of 15 January, Mr Mason bought beer and a two-litre cask of a mixer drink. He had gone to the Weston Creek shops on his pushbike for that shopping. On that night, he went back to the causeway, and cooled off in the water, and he was pretty sure he had drunk too much. He was feeling pretty intoxicated.

264. At some stage before 16 January, Mr Mason said, he had come across a little dog. He said:

One night I was out walking and it was near the morning. I saw a dog chasing kangaroos so I called it to me and after a while, it come to me.

265. When he woke up on 16 January, he thought he heard voices but it might just have been a "clatter", and after a while he saw a small fire burning across the river in a pine tree. He went over to try to put it out, crossing the river and running up the hill, and then starting stomping on it. He gave evidence about his efforts as follows:

And how did that work? Were you successful in putting it out?---No, I wasn't. I was stomping - I remember stomping and it just kept going out that way and then I'd stomp there and it would go there and then it got to the base of the tree and I took my Driza-Bone off and I was hitting it trying to smother it because the Driza-Bone won't burn until it's actually sat on a flame for some time - a short period of time.

And what happened?---It got too hot for me. It started to go to the base of the tree and I turned to step out and it was like a huge explosion.

Okay and do you know - or where did the explosion come from?---I didn't know at the time but after I'd got out of the Concord Hospital, an elderly gentleman told me that it's similar to a turpentine in the pine needles and it ignites once it gets heat the same as eucalyptus oil.

266. Mr Mason sustained burns to his right arm. He gave evidence:

It was actually alight, was it?---It was alight, the whole arm, and a little bit on my back and my face and I've rolled - I've actually got knocked down, rolled and then I've run to the river.

Okay and why did you do that?---I tripped on some rocks and fell in the river and put it out.

Okay and what happened then?---I saw a police bike pull up on the cycle path and I was sitting just in the edge of the pipe there and I knew I needed medical attention so, you know, I had to - I would have had to seek help but - - -

267. Mr Mason said that he had been treated for bipolar disorder for some years before 16 January 2014. He had been admitted to hospital on occasions, and on at least some of those occasions he was told that he was experiencing mania. He had come to recognise the symptoms of a manic episode, but seemed unable to describe them. Instead, he talked about the process of recognising, in the course of treatment, that he had been unwell but that he was getting better and needed to get out of hospital, and said that he had quickly learned how to get "an early release".

268. Mr Mason had seen Dr Allnutt in September 2014, and since then had been seeing a psychiatrist every two months. He had seen Dr Allnutt's report, which summarises a number of things that Mr Mason had said to him. Mr Mason said he had told Dr Allnutt the truth.

269. Asked about his belief that he could change the weather, Mr Mason said that he had told Dr Allnutt that, but that he "generally kept these things" to himself because "it's extremely embarrassing". He said that in other worse episodes, he had believed he could, among other things, create or stop earthquakes. He could not remember any windy days in January 2014, and he had definitely believed he was controlling the weather to make his life easier because he was homeless. He had started to believe this shortly after his car caught fire.

270. Mr Mason at first said he had no recollection of setting a fire near his car on 5 January, or in the area where he was burned on 16 January, but then said he had now remembered having had "one tiny little campfire in the sinkhole" one night, "nowhere near that other fire".

271. Mr Mason agreed with the prosecutor's description of how a cigarette lighter works, but denied that while he was camping near the Scrivener Dam he was cooking on a campfire; rather, he said, he was using a gas cooker which was "self-igniting like a barbecue".

272. Mr Mason agreed that on 5 January he had been sleeping under a footbridge not far from the gully where his car had been burnt, which was also the gully in which there was a fire that day. He was camping by himself, and there was no-one living or camping in the same area. After he had stomped on the fire, it was still smouldering, and the fire brigade had come to put it out. He had no memory of speaking to a firefighter after police had found him in the grass, but only recalled speaking to a sergeant and a constable. He saw a person pushing a bike on the bike path close to the top of the hill, then went up onto the footbridge to the east to look at the view, but his view of the burnt car was blocked by gumtrees. He had only seen smoke after he spoke to the "lady jogger", because he had moved more to the north. He described his conversation with the jogger as follows:

she said, "Is that a fire?" or smoke? And then she said, "Fire." And I've looked. I've already looked and saw it because I'd already approached because she yelled out - from what I - yes, I remember that. And then she said, "I'll ring the fire brigade." I said, "That's not a fire. Don't waste the tax payer's money and you're a do-gooder." or something and "I'll put it out."

273. Mr Mason had said that what he saw wasn't a fire because he didn't consider it to be a dangerous fire. He had stomped it out, and thought he had it all out, but when he saw the fire-brigade he decided to hide. He repeated that he had no memory of speaking to a fire-fighter, or of telling a fire-fighter that he didn't know anything about the fire, and said that, because he couldn't remember it, it was not possible that this had happened. Mr Mason did remember a police officer (Constable Timmiss) who asked him how the fire started; he said that he might have suggested having thrown a cigarette butt down, although he was not sure about this, or that he might have said "Maybe someone threw a cigarette butt down".

274. Mr Mason remembered speaking to Constable Janssen, who, he thought, asked him if he had a knife. He recalled telling Constable Janssen that he had left it back at his camp, but agreed that the knife was found lying beside him in the grass, and that what he had told the constable was a lie. He agreed that he had told this lie because he didn't want to be caught with the knife, because "they kept taking them off me".

275. Mr Mason remembered speaking to Dr Barker in March 2014 about the incident. He agreed that what he had told Dr Barker (at [209] above) was very different from what he had told Constable Timmiss at the time. In particular, Mr Mason agreed that there was a lot more detail in what he told Dr Barker, but that his memory would have been better at the time of the fire. He agreed that if Dr Barker's report didn't mention him suggesting he might have thrown down a cigarette, then he hadn't made that suggestion, but said:

I remember very little what I said to Dr Barker. I could have told him anything because of the state of mind I was in at the time.

276. Counsel agreed, after discussions about evidence Dr Barker had given about his report, that the record of the conversation with Mr Mason did not purport to include everything that was said to Dr Barker.

277. Mr Mason agreed that after speaking to Dr Barker, he had spoken to a Legal Aid lawyer and said that he had been in the area of the fire, and "Maybe I did, I don't know". He confirmed that his evidence was that he did not light the fire on 5 January, and gave further evidence as follows:

Okay. So when you said that you accept that you may have lit the fires - - -?---That was conversation due to evidence after reading all of the police reports, everything saying what they've said.

Mm'hm?---It's part of what I consider to be a state of confusion and self-brainwashing at the time due to still not being fully well. It took me quite a long time to become well after I was released from the [AMC].

278. Even in the light of the evidence he had now heard, Mr Mason said, he did not accept that he lit the fire. He:

(a) denied having a good recollection of the day of the 5 January fire;

(b) denied "selectively not remembering portions of the day";

(c) denied that he wasn't being truthful about his memory;

(d) denied that he lit the fire;

(e) denied that he was "just standing there as the fire burned when the fire brigade arrived";

(f) denied that he hadn't stomped the fire out;

(g) said that if there were flames visible when the fire-fighters arrived, he must have been too far away to see;

(h) denied he was standing right next to the fire, saying that after he stomped on it he had escaped;

(i) denied that he lied about putting out the fire;

(j) denied that he had lied about it to Dr Barker because he had lit the fire;

(k) denied that he had hidden because he had lit the fire; and

(l) denied that he was coming up out of the gully when he came across Ms Studdart (the "lady jogger").

279. Mr Mason agreed that he had told Dr Allnutt about the fire, but couldn't remember everything that he'd said. He agreed that he had said he didn't believe he had lit the fire and had told Dr Allnutt that he had put the fire out, but agreed that he had not mentioned stomping on it, while suggesting, in effect, that this was just a difference in terminology. He agreed that he had told the Legal Aid officer (Matthew Kamarul) that he might have lit the fires, but had told Dr Allnutt that he hadn't lit the 5 January fire.

280. He did not recall telling Dr Allnutt about symptoms including increased energy, irritability, being short-tempered, and having broken sleep and reduced appetite, but remembered that "that's what it was like".

281. Mr Mason agreed having remembered the symptoms described "in retrospect", and couldn't recall mentioning any of them to Dr Barker, saying "Why would I? He wanted a story". He denied having made up his symptoms for Dr Allnutt, and denied that the reason he hadn't mentioned them to Dr Barker was because he wasn't actually suffering those symptoms in January. Pressed about his failure to mention symptoms to Dr Barker, he said:

Why would I? I spoke to so many psychiatrists while I was locked in the Alexander Maconachie Centre. To me he was just another psychiatrist. It was almost every week.

282. Mr Mason also denied knowing that Dr Barker was preparing a report for the court, and said that he didn't remember Dr Barker explaining the nature of his report. He pointed out that at the time he was in the psychiatric ward of the AMC, where he had seen many psychiatrists, and "couldn't possibly" have understood anything in early March. He said that he had agreed to do an interview with Dr Barker, but was "totally unaware" that it would become part of the prosecution evidence, and that if he had known he would have wanted his "proper solicitor and [his] proper psychiatrist" at the time. He was concerned that it was used to prosecute him, and said:

if I'm mentally unwell it should not be used to prosecute me while I was in that state of mind.

283. Mr Mason agreed that he had a longstanding problem with alcohol consumption, for which he had sought help from Directions ACT, and that throughout January 2014 he was possibly drinking every day, and had drunk quite a lot of alcohol. He had believed he had cut his alcohol consumption, because he was no longer getting drunk, but later realised that he was still drinking the same amount. That was why he had got himself to Directions for help. He agreed that in November and December 2013 he had drunk quite heavily on occasions, and had lost his job, but pointed out that he had also ended up in a psychiatric ward. He had been in and out of Canberra Hospital in December 2013; sometimes, but not all the time, he had been heavily intoxicated, but he did not remember much about it.

284. Mr Mason said that drinking alcohol had very little effect on him unless he drank "extremely fast", although he agreed that when he was manic, alcohol made him "go faster". When he was not manic, alcohol settled him down.

285. Asked about the dog, Mr Mason said that when he saw the dog in January 2014, it was chasing several kangaroos, and it took quite some time for him to get the dog to come to him. He had no idea of the day or date on which this had happened. The dog had looked very young, and it had a black patch over its eye. Mr Mason said he liked both dogs and cats, but he would not have pets anymore.

286. Mr Mason agreed that the dog was with him on 16 January when police found him on the bridge near the fire, and said he now knew that it had come from the RSPCA, and had been stolen between 14 and 15 January.

287. He agreed that on 16 January, he had been found with a "multi-tool device" that was broken into two bits, that there were also two bits of a multi-tool found inside the dog's cage, and that he accepted that those bits matched the multi-tool found in his possession. However, he said:

I used to pick a lot of different things up also. There's still things out there. All along that riverbank that I've scabbed up in that state of mind.

288. He said he honestly did not know whether he had gone into the RSPCA, broken into the dog's cage, and taken the dog, but he could have done that. He did recall seeing the dog chasing kangaroos, recalled spending time with the dog, and recalled it being there on 16 January, but said that he seemed "to have a blank period in there somewhere". Mr Mason said that he told police he had had the dog for three weeks, or perhaps three months, because he wanted to keep the dog.

289. Mr Mason agreed (after some slightly confusing questioning) that putting a bushfire out was the right thing to do; at the time of the 16 January fire he knew that, and also knew that it would be the wrong thing to light a fire.

290. Next in the evidence came a lengthy session in which the prosecutor showed Mr Mason two photographs of a causeway over the river, and then asked numerous questions relying on identifiers such as upstream, downstream, north and other compass points, sides of the river and sides of the causeway; this was generally confusing because nothing in the photographs identified either compass points or the direction of the flow of the river, and was particularly confusing because neither the prosecutor nor Mr Mason seemed to be clear whether the "sides" of the causeway were the edges that ran in the same direction as the river banks (that is, the points where the causeway met the riverbank) or the edges that ran between the two sides of the river). There was also reference to a "watermark" (a word generally referring to an image embedded in paper) in questions to Mr Mason about a floodwater depth indicator shown in several photographs, although in fairness this particular issue did not seem to cause Mr Mason any confusion.

291. In the course of this questioning, however, Mr Mason did use one of the photographs to identify the point where he fell into the river, and gave the following evidence about what happened after that:

Can you just point in the photo to her Honour where it is that you fell into the water?---I come through on the side of the marker which is upstream, it's that side that I come through here, fell in the water here, like I fell in here, and come along a bit further because one pipe hole was blocked and there was one full of slime, and I ended up at the one full of slime on this side right against the causeway.

HER HONOUR: So you fell in on the side, in fact, by the look of it, the diagonally opposite side from that marker?---Well, it's the same side as the marker because the trap goes through there, your Honour.

Is it the same side?---So I have come in the same - the opposite side of the river, sorry, your Honour.

So it's the opposite side of the river, but if you look at where the path goes up ?---Yes. This way.

- - - from that side of the river, were you on the same side of the concrete thing that goes across, were you on the same side as the marker on the other side, or ?---That's correct, your Honour, the opposite side to the marker but the same - I mean the opposite side of the river to the marker, but the same side as the marker.

So what we can see under the causeway, the sort of dark bit with the poles ?---Yes.

You were on the far side of that as well?---Yes, the opposite side of the causeway.

Then you came back through that?---The constable said, "I can see you," while I was approximately here on the same side as the marker, and he said, "Go through the pipe and put your hands where I can see them, out in front of you."

Right. So you then came through?---Through, and ended up on the lower side which is downriver.

I see. Thank you?---That's how I remember it, your Honour.

MS JAMIESON-WILLIAMS: Okay. Now, I am suggesting to you that when Constable Evans found you, you were, in fact, on the far side of the causeway to where you say you fell in. What would you say to that?---You're wrong. It's wrong. It can't be right. I was told - ordered to go through by ... Constable Evans.

To be clear, Mr Mason, you can see that there is a side of the causeway that's closest to the fire where the police van is?---Yes.

There's a side that's further away from the fire on the other side of the river? ---Yes.

292. Asked again about the 5 January fire, Mr Mason confirmed that he'd gone up to a footbridge which overlooked the area near his burnt-out car. From there he could not see any smoke until it was pointed out to him by the "lady jogger", at which point he said he would go down and put out the fire.

293. Mr Mason said that, even though he had been standing on the footbridge, he didn't know whether the fire had been burning for at least 13 minutes, but he estimated that it had been burning for at least five minutes. It took at least a minute for him to get down to the fire, and he spent at least a couple of minutes, maybe a bit more, stomping. He had tried to put the fire out, but it had still been smouldering and must have picked up again. He agreed that he had said to the lady "You're a do-gooder, why would you want to waste police time? Mind your own business"; this was because he didn't see that it was necessary to call the fire brigade. It was not because he had lit the fire and wanted it to burn.

294. Mr Mason confirmed that he had told Dr Allnutt the truth, although he had not remembered to tell him everything. He hadn't told Dr Allnutt that he used the phrase "do-gooder", but accepted what he had seen in the brief of evidence about it. He explained that he had struggled with the brief of evidence as it came to him in dribs and drabs, and only comprehended it after he had obtained a copy of the whole brief, which from his memory was after he saw Dr Allnutt.

295. Counsel put to Mr Mason that he had not mentioned stomping on the fires until he gave evidence, and he conceded that he could not recall having heard it mentioned in court before that. He denied that he was making up his evidence as he went along. Mr Mason explained his attempt to hide from fire-fighters after the 5 January fire by saying that, although he understood that the fire brigade was different from the police, and had no power to arrest him, he knew that police were likely to arrive and he didn't want any involvement with police, even though he had nothing to hide.

296. Mr Mason repeated that he had stomped on the 5 January fire, while conceding that he had not succeeded in putting it out. He agreed he was wearing an Akubra hat and a coat that day.

297. On the morning of 16 January, Mr Mason said, he had been camping on the opposite side of the river from where the fire started. Some of his belongings were near where he was camping, and some of them were in the river. He had to cross the causeway to get to the fire. When he reached the fire, he said, he began stomping on it, and after it started to go up the tree, he took his coat off and tried to smother the fire, but it was too big. He thought he hit the fire with one hand, but wasn't sure. He couldn't remember using two hands, but he said he was definitely not fanning the fire, and agreed that since he wasn't succeeding in putting out the fire, it was getting bigger.

298. Mr Mason disputed the prosecutor's suggestion that it would be difficult to use a coat to fight a fire using both hands, saying that "it would make more sense to use two hands to get more power". He demonstrated this, by clasping his hands together over his right shoulder and moving them down, across his body, to show that he was hitting from shoulder height to about waist height. The prosecutor put to Mr Mason, incorrectly, that a witness had said that "you had an object in both of your hands and you were making a fanning motion", although Ms Rollings (the only witness who saw Mr Mason standing near the 16 January fire) in fact said that she couldn't recall seeing anything in his hands (at [149] above). Mr Mason said that he couldn't remember if he had his coat in both hands, but he was certainly not fanning the fire. He said that as he was "hitting the fire to put it out, it was getting bigger".

299. The prosecutor put to Mr Mason that in fact he had both hands out in front of him holding the coat, and that he was lifting his arms from shoulder height to about waist height in a fanning motion. He said this was wrong, and that he did not fan the fire, and asked "Why would I try and make something bigger that was getting bigger already?" He remembered not fanning the fire, but denied hearing a lady yelling out to him, saying that he heard nothing, and that there "was a lot of noise from the cracking of the fire". He said that the explosion he had referred to was not noisy, but was "more like a hiss", but noted that he was getting burned at the same time so he didn't really know. As he stepped away, he turned, "then it's exploded", and his side and jacket started to catch fire. That knocked him off his feet, and he rolled quickly and then ran as fast as he could down to the water, where he tripped on the rocks and fell into the river.

300. Mr Mason explained that what he meant by an "explosion" was the ignition of the fuel within the pine needles, and said that there was quite a build-up of pine needles. Counsel reminded him that Mr Woods had said that there was no evidence of an explosion, but he maintained that there was a "sudden ignition", and "it just went woof". Mr Mason agreed that he had initially thought there might have been a jerry can of fuel hidden under the leaf litter, but that in Concord Hospital someone had told him about "it" (apparently the ignition of fuel within the pine needles). He agreed that the forensic report showed there had been no jerry can.

301. Mr Mason agreed that, although he was in excruciating pain while he lay in the river and knew he would need medical help, when the first police officer arrived he had not alerted the officer to his location. Mr Mason claimed that he had been moaning and that the officer might not have been able to hear the moaning because he had left his motorcycle running, but agreed that he had not made his presence known to the officer. Mr Mason said counsel was wrong to say:

(a) that he hadn't been trying to put out the fire;

(b) that in fact he had lit the fire;

(c) that he was fanning the fire to make it bigger; and

(d) that he wasn't being truthful about either lighting the fire or trying to put it out.

302. Mr Mason said that before the January 2014 fires he had last had contact with his family on 30 December, but he had only seen his son that day.

303. Mr Mason agreed that before seeing Dr Allnutt, he had been aware that a defence of mental impairment might have been available. When he saw Dr Allnutt in September, he had told him that, looking back, he believed he had been mentally impaired at the time. He agreed that he knew the symptoms of mania, and had given Dr Allnutt detailed information about his symptoms. He denied exaggerating his symptoms, saying that if anything, he had "under-emphasised" his condition, because he was "embarrassed and not proud of being unwell". He said:

In general, even with my family and my friends, I prefer not to talk about being unwell, because it's very upsetting, to get on with my life, due to the crazy stupid things that I have done being unwell.

304. Mr Mason denied wanting to appear mentally impaired in order to have a defence, saying that since he was unwell at the relevant times, "of course" he wanted it as part of his defence. He agreed he had been a bit unhappy that Dr Allnutt's first report was not conclusively in favour of a mental impairment defence. However, he said, what he had sought was not that Dr Allnutt "reconsider" his report but that information from other people, clarifying how unwell he had been, would be added to it.

305. Mr Mason said that he was familiar with the symptoms of mania, "but not at the time of having an episode". He identified symptoms including "sleeplessness, and moving at pretty fast speeds with confusion, trying to do five things at once, thinking things that aren't real". As to the symptoms he was experiencing while he was living rough in January 2014, he said:

Sleeplessness, confusion, anxiety, and totally lost, unnecessarily walking long distances and riding long distances, basically getting nothing done, and I was unaware at the time that I was unwell, and it took me six months to talk to friends and family to clarify that I was unwell. That's the only way I could actually believe it to this day.

306. Mr Mason was recalled to give evidence about the transferred charge relating to his possession of a knife. He said that on 5 January 2014 he had been in possession of a hunting knife, which he had had for about a week. He had bought it initially as a camping knife, to cut up meat, and if he had caught a fish he would have used it to gut the fish.

307. In cross-examination, he agreed that when Constable Janssen had asked him whether he had a knife, he had lied and said that he'd left it back at his camp. He also agreed that he had not told Constable Janssen that he used it for cutting up meat, but nor had Constable Janssen asked. Counsel put to him that if he had provided a reason for having the knife, such as preparing his food, he wouldn't have been concerned about police taking his knife away, but he said "they took a couple of knives off me earlier".

308. Mr Mason clarified that he had not claimed to have used the knife to cut up meat, but that cutting up meat, and fish if he'd caught any, was the purpose of possessing it. He said it was the only utensil he had at the time, and that he had meat at the camp and he had intended to use the knife to eat it. He agreed that he had not, at any earlier point in the trial, raised this as the purpose of possessing the knife, but said he hadn't needed to think about this explanation "because that is what I had it for".

309. Ms Mason was Mr Mason's ex-wife. They have three children, the youngest being 17 years old. She and Mr Mason had separated around 2000, but she had continued to provide accommodation for him on and off since the divorce.

310. Over time Ms Mason had become aware that Mr Mason had health issues requiring periods of hospitalisation, and that there was a diagnosis of manic depression or bipolar.

311. In late 2013, Mr Mason was living in a room in the garage at Ms Mason's home, and had been there for about eight months. In November and December 2013, she saw Mr Mason every day, and she was aware that he was working and was using his boss's big van. When he moved out of the garage, the family had let him have a car belonging to her son, which was the car that had been burnt.

312. Asked about the circumstances in which he had left, Ms Mason said:

For many weeks and days he was really unwell, like roaming around the yard at night, singing, talking out loud, just disturbing our space, [mine] and the kids. I remember calling the police on this day that he - he seemed to get quite aggressive and

313. She described what happened the day she called the police:

we just couldn't take any more of his comings and goings and the chaos that was happening all around when he was around with the manic side, the high. I called the police. My mum and dad just happened to arrive at that same time just after the police were there and he was becoming verbally abusive and that's rare, that's the first that he was swearing at me in front of all the people that were there. He was throwing things out of the van because he was asked to leave the property, just throwing things out of the van, big noises, everything was just chucked on the concrete and on the red scoria, nuts and screws and all sorts - just everything was everywhere, it was a shemozzle.

You said that he was walking around the property at night?---Yes, 4.00 in the morning, 3.00 in the morning, singing, speaking out loud, swearing at me. I was asleep, you know, in my room. Just causing a lot of mayhem.

Was that something that happened once or more than once?---It went on for a few days and then, yes, we just couldn't take any more so called the police.

Do you have any recollection as to whether he was drinking significant amounts of alcohol during the period that you are talking about now?---I think he was. He drinks pretty much every day, you know, he has beers every day.

315. In cross-examination, Ms Mason agreed that when he was asked to leave her property, he was angry, and he was also probably angry about losing his job. She said he mainly drank beer, very occasionally whisky, and gave the following evidence:

During this period of time was he often drunk?---He would have, you know, a few beers every day. It's hard to tell with that height of mania that he was in, whether he was drunk or not.

So you couldn't tell if he was drunk or not?---No.

But he was certainly drinking a lot?---Yes.

316. Mr Brasser had been a friend of Mr Mason for a number of years. He had seen him in January 2014, when Mr Mason came to his house one afternoon. It had been some time since he had seen Mr Mason. Mr Mason had been in a "very agitated state ... up and down with his moods". Mr Mason had stayed for a couple of hours, and then Mr Brasser had taken him to the home of a mutual friend, Joe Lopez, in the hope that he and Joe could help with Mr Mason's state of mind, reassure him that things were okay, and try to help him out. Mr Brasser had been distressed that Mr Mason was homeless, but he wasn't in a position to offer Mr Mason accommodation himself.

317. At Mr Lopez's house, Mr Mason got worse and worse as the night went on, and Mr Brasser realised that he wasn't going to be able to stay at Mr Lopez's house either. Mr Mason went through "happiness and then sadness, almost crying, mood swings that were very irrational". When they left Mr Lopez's place, Mr Brasser realised he could not take Mr Mason back to his place, so he took Mr Mason back to his campsite to sleep for the night. When he left with Mr Mason, Mr Brasser's partner had grabbed a plastic bag of food from the fridge, and Mr Brasser had given it to Mr Mason to take with him.

318. Before Mr Mason's visit, Mr Brasser had not seen him for at least a couple of months. Mr Mason's personality was "totally different". He might have been upset about being homeless, but Mr Mason had not mentioned that; rather, it was Mr Brasser who had attributed Mr Mason's distress to his homelessness. Mr Brasser said they were not drinking during Mr Mason's visit, except that he had offered Mr Mason one beer, which he had accepted.

319. After Mr Mason's visit, Mr Brasser had not seen him for a long time, until "way after" the fires. He had been to the camp area looking for Mr Mason but had not found him, and at some point Mr Lopez had mentioned that Mr Mason had been in the police station.

320. At Mr Lopez's place, Mr Brasser did not see Mr Mason drink any alcohol, nor did he see Mr Mason smoke.

321. Mr Brasser had only made one attempt to find Mr Mason after the visit. He had gone to see if he could get Mr Mason some help in getting accommodation, and try to find someone to help him, because he was worried about why Mr Mason wasn't being looked after.

322. Mr Brasser's evidence was to the same effect as the written statement he made that had been relied on by Dr Allnutt.

323. Joe Lopez had been friendly with Mr Mason for 25 or 30 years. He had seen Mr Mason when he came to Mr Lopez's house with Mr Brasser, who was also a friend of Mr Lopez. He said:

On that night, look, he wasn't well, he wasn't in the head. He kept repeating everything. He kept taking things out of his bag all the time and stacking them up next to his bag really neatly, packing them up again, doing it again. You would be having a conversation with him and he would all of a sudden break down and cry, then all of a sudden he would be happy again. What else was he doing? He thought he was a ninja, he thought he was being watched, just things like that.

How did you come to know that?Well, I know from previous times that he's manic, and he's lost it a few times in the past. I've seen him like that, and I've seen him when he's fine like he is at the moment. You know?

324. Dr Allnutt had telephoned Mr Lopez, and he had told Dr Allnutt what he could recall, which was pretty much what he had said in court. He mentioned also that Mr Mason had been "pretty paranoid, he thought people were watching him, following him". Mr Lopez said, however, that he would not have been able to provide a specific date to Dr Allnutt.

325. In cross-examination Mr Lopez agreed that he didn't want to see Mr Mason in any trouble, because he didn't deserve it. He could not recall when he had last seen Mr Mason before the evening he had referred to in his evidence. He believed that Mr Mason had been drinking alcohol, but couldn't recall seeing him do so. He said that there were a lot of other times when he had seen Mr Mason drinking but on this occasion he believed Mr Mason had been drinking, because he was intoxicated, and he believed this because he "could smell it on his breath, his clothes". He had known few details of the case before he spoke to Dr Allnutt.

326. Liam Mason is Mr Mason's son. He had been aware of his father's mental health issues since he was a young child, and had on occasions since then had to call police asking them to take Mr Mason to Canberra Hospital. Over the years, he had observed that his father is a very kind man, but that when he's "in a high", he becomes aggressive; for instance, Mr Mason would swear at Liam's mother, even though she helped him every day. Mr Mason had also shown such behaviour towards Liam's grandparents and siblings, and to Liam himself.

327. In the weeks leading up to 20 December 2013, Liam had become concerned about his father's health. This was because his father wouldn't sleep. On 30 December, Mr Mason had come to the house to mark Liam's sister's birthday, but he was being very aggressive, and Liam had told Mr Mason that if he didn't leave they would have to call the police.

328. In cross-examination, Liam said that on 30 December when Mr Mason came round, his sister was in the house but she didn't want to see her father. In December his parents had not been getting along very well. He agreed that he didn't know for sure that his father had stopped taking his medication, but given his past experience, "it was apparent that he had". He did not see his father with any alcohol on 30 December. Liam said that when his father was drunk, he was not aggressive or disrespectful, but was quiet and "stays to himself".

329. Liam explained that when he said in his letter to Dr Allnutt, "This is the first time that this ever happened", he was referring to Mr Mason swearing at, and disrespecting, his mother and grandparents in front of other people such as himself. He was not sure of the date, but said it was just after Mr Mason had been asked to leave the house. Liam had not seen much of his father after Mr Mason started living on the streets.

330. Claire Mason was Mr Mason's daughter. Over the years she had become accustomed to her father suffering apparent mental illness on occasions. In the period leading up to 20 December 2013 she had not seen much of her father. She had seen her father at a family gathering in Commonwealth Park on 15 December to celebrate her birthday early, and said:

He was definitely manic. Like, what I've come to know from dealing with that in the past with him. We were there quite early in the morning. So it was, yes, an all day thing, and then we had to end up sending him home because he was just a mess. So just talking nonsense and things like that.

331. Claire had written a letter to Dr Allnutt about her father.

332. In cross-examination she said that she had a good relationship with her father, and agreed that she didn't want to see him in trouble with the law. She had not seen him after the party on 15 December until she saw him in hospital in Sydney.

333. In November and December 2013, Claire had been working full-time, and spending a couple of nights a week at her boyfriend's place, so she was rarely at home during the day. She did not know whether Mr Mason had been drinking a lot of alcohol at that time. She had been aware that he was up most of the night and then would sleep during the day, and he seemed to have a poor appetite when she saw him in the evenings (which was a few nights a week). The reason she had said in her letter to Dr Allnutt that Mr Mason couldn't be held responsible for his actions was that, having dealt with him in the past when he was manic, "it's like he's there physically but he's not mentally there".

334. Dr Stephen Allnutt is a specialist forensic psychiatrist with many years' experience. He had seen Mr Mason on 16 September 2014, and had been asked to provide an opinion about his mental state at the time of the alleged offending. Dr Allnutt's first report indicates that in the referral he was asked about all the current charges.

335. In his first report, Dr Allnutt said that Mr Mason "presents with symptoms consistent with schizoaffective disorder or bipolar affective disorder with associated psychotic symptoms". He provided the following conclusions:

I believe that based on the information provided, on balance he suffered symptoms of a mental impairment at the material time of the alleged offences based on the following:

• A documented psychiatric history of bipolar affective disorder, and schizoaffective disorder.
• Possibly a change in medication more proximal to the alleged offending (when he saw his GP)
• Evidence for deterioration in his mental state at the time leading up to the alleged offending (his loss of employment, being asked to leave his ex-wife's home, the observations of his ex-wife in conversation with me, living an itinerant lifestyle).
• Persistence of alcohol consumption likely in significant amounts.
• At times using cannabis.
• Admission to a psychiatric hospital for a period relatively proximal to the alleged offences, when he was noted to have disturbed thought processes.
• His subjective report of symptoms around that time.

Based on this, it would be reasonable to draw a clinical conclusion that he was experiencing a relapse of his mental illness in the form of mania and psychosis. Mania and psychosis is a mental state that is known to contribute to reduced concern about the consequences of one's behaviour as well as to disinhibition, and thus in my view it would be reasonable to consider that his mental state at the time made a contribution to the alleged offending. Whether or not this contribution was of a level that it would meet the legal test of a defence of mental impairment is a difficult determination to make.

I believe your client was probably able to control his actions, and this is evident in his decisions to put the fire out at the material time of the alleged offending. I also believe he was able to [know] the nature of his conduct at the material time.

An area that is difficult to provide an opinion on is the underlying motivation, that is, because he is saying he cannot recall the alleged offending, it is not possible for me to get at what might be an underlying motivation. His underlying motives could have been driven by grandiose delusional beliefs or irrational thought processes and if this was the case, then he might have a defence of mental impairment available to him as this might have provided him with a delusional justification.

His behaviour on 5 January 2014, while suggestive of knowledge of wrongfulness (he was hiding when police arrived) is made ambiguous on the issue of wrongfulness when considering the comments made to the witness earlier which suggests he felt justified in lighting the fire; and if psychotic, his justification could have been derived from a delusion and thus [an] irrational reasoning process. However due to his lack of recall and limited information about his thought processes and reasoning at the time, inference would need to be drawn based on an evaluation of all the evidence and is a matter for the court.

In regard to the alleged offence of [16] January 2014 the evidence suggests that he was aware that lighting the fire was wrong at least in a legal sense. This however does not automatically rule out impairment in reasoning of wrongfulness in a moral sense and again inference would need to be drawn by the court.

At this stage based on the information available to me, I would conclude that given the evidence of mental illness symptoms at the time, and the apparent lack of motive on face, it would be reasonable to infer that his offending was driven by symptoms of a mental illness and a mental impairment defence can be inferred.

336. In oral evidence, Dr Allnutt said that, having interviewed Mr Mason and reviewed the medical documentation, he concluded:

that he suffers from a recurring mental condition which was characterised by mood disturbances and probably episodes of depression at times, episodes of mania at times and probably at times a mixture of those symptoms, as well as episodes of psychosis. The kinds of diagnostic conditions that tend to manifest in that way would be either bipolar affective disorder with episodic psychosis or schizoaffective disorder.

337. The documentation available to Dr Allnutt recorded previous diagnoses of bipolar affective disorder with episodic psychosis or schizoaffective disorder.

338. Dr Allnutt explained bipolar affective disorder as follows:

Bipolar affective disorder is a chronic mental illness. It usually onsets in mid-late adolescence to late-early adulthood. It's characterised by recurrent episodes of mood fluctuation, periods of major depression or significant depression, alternating with periods of hypomania or mania, that is mood elevation, so basically, the person's mood fluctuates significantly and to a greater degree than the average person might experience mood fluctuation. Sometimes the fluctuations in the mood can be of a severity that a person can lose touch with reality and become psychotic and therefore manifest associated psychotic symptoms. A person with bipolar affective disorder doesn't necessarily have to either be in a depressive phase or in a manic phase. They can also have periods of normal moods as well.

339. He said that this was a condition amenable to treatment, usually involving forms of medication categorised as mood stabilisers. Such treatment could control but not cure the disorder. Different people with this condition respond differently to treatment: some are treatment resistant, some respond partially and some go into long-term remission as long as they stay on medication.

340. Dr Allnutt described the different kinds of symptoms that might be seen at different stages of the disorder:

the kinds of symptoms that you would see in a depressive situation, say, would be poor sleep, loss of appetite, reduced energy, amotivation, loss of interest in usual activities, an inability to find pleasure in activities, poor self-esteem, indecision and loss of confidence in decision making, poor concentration and often they complain of a depressed mood, suicidal ideation, feelings of hopelessness and helplessness. Those are the kinds - that's the constellation of symptoms you would see in depression. In hypomania, which is not quite mania and so when the person goes into a manic stage, they go through what you call a hypomanic phase. That's h-y-p-o-m-a-n and that means "under mania," a person who experiences increased irritability, short temperedness, again a reduced need for a sleep, an increase or decrease in appetite. It's not - it varies from person to person; increase in energy levels, difficulty in staying on one task, with distractability and concentration problems, grandiose thoughts, a sense of invincibility at times, just in addition, euphoria. Sometimes they would describe rapid thoughts. Sometimes they may present with rapid speech. They might jump from topic to topic when they speak about things. When a person moves into a manic phase, that's when the symptoms are causing either significant impairment in their functioning, so it's gone beyond something that's containable, or they are experiencing delusional beliefs or psychotic symptoms associated and the most common psychotic symptoms are grandiose beliefs, so they believe they have special powers or special abilities to do things in - to a delusional extent. Sometimes you can also get paranoid thoughts associated with that.

341. Phases may last as little as a few days for the manic phase and a few weeks for the depressive phase.

342. Dr Allnutt explained schizoaffective disorder as follows:

it's generally manifesting psychotic symptoms in the absence of mood disturbance and mood disturbance in the absence of psychotic symptoms and the kinds of psychotic symptoms are generally the kinds of symptoms one finds in people with schizophrenia but the mood symptoms can also overlap with the psychosis as well which can make the diagnosis difficult.

343. He noted that while clarifying the diagnosis can be difficult, what he considered important from the court's perspective is that Mr Mason's condition is one which manifests with "a combination of mood and psychotic symptoms".

344. In oral evidence Dr Allnutt gave the following summary of his conclusions:

MR LIVINGSTON: Doctor, could I ask you are you in a position to provide a diagnosis in relation to Mr Mason in terms of any mental health condition that he has or had?---He has a chronic recurrent - chronic means long term, recurrent mental illness which is characterised by mood disturbance, either mania or depression with a socio psychosis that occurs intermittently. So he presents with either schizoaffective disorder or bipolar affected disorder. Both conditions manifest periodically with symptoms of mania and/or psychosis. So the mania and/or the psychosis that I'm referring to in my report emerges from an underlying diagnosis of schizoaffective disorder or bipolar affective disorder.

Now - - - ?---So when - can I just clarify? So when I say that at the material time of the alleged offending he was experiencing mania and manic and psychotic symptoms, what I mean is that those were - that was a constellation of symptoms that he was manifesting derived from his underlying schizoaffective disorder or bipolar affective disorder. The mania and psychosis are derived from mental impairment.

Is it appropriate to describe those states as symptoms of those conditions?---A constellation of symptoms, so at base level one might have the diagnosis of schizoaffective or bipolar affective disorder, at another level one can say that his bipolar affective disorder or schizoaffective disorder was manifesting itself with psychotic symptoms and mood symptoms and psychiatrists would say that's psychosis and mania or overall mania because you can lump psychosis into mania. It's more an issue of terminology than anything else and how we may speak about things. But his mania and psychotic symptoms derive from his mental illness which we would categorise as bipolar or schizoaffective disorder.

345. Dr Allnutt was asked about the matters he had relied on in his first report to conclude that Mr Mason was suffering from a mental impairment at the time of the alleged offences (at [335] above), and clarified the following matters:

(a) His reference to a "change in medication" was a reference to the evidence found in Mr Mason's medical records that on 19 Dec 2013 Mr Mason had seen a doctor at Chisholm who said Mr Mason didn't need Olanzepine (an antipsychotic) but recommended that he increase his dose of Epilim (a mood stabiliser), and to the fact that although Epilim had been prescribed after Mr Mason's "late November 2013 hospital admission", Mr Mason had been unsure whether he had taken the medication at all, or if so, for how long. In cross-examination Dr Allnutt agreed that Mr Mason's unsuccessful request to his GP for Olanzapine was not necessarily a "change" in his medication.

(b) His identification of Mr Mason's loss of employment, Mr Mason being asked to leave his wife's home and Mr Mason's itinerant lifestyle as indicating a deterioration in Mr Mason's mental state reflected the fact that mental illness and an itinerant lifestyle often go together

(a) Mr Mason's alcohol and cannabis consumption were relevant because alcohol and other drugs can aggravate or trigger psychosis in vulnerable people. Also, chronic alcohol or substance users don't respond as well to treatment and are more vulnerable to relapses. Dr Allnutt agreed that alcohol and other drugs can also themselves impair judgment.

(b) Dr Allnutt's reference to an admission to a psychiatric hospital at a time close to the fires was to Mr Mason's admission in November 2013 after he was taken to hospital with thoughts of self-harm; Dr Allnutt had summarised the medical records as indicating "disturbed thought processes".

(c) The "subjective report of symptoms around that time" referred to the symptoms that Mr Mason had described to Dr Allnutt at interview.

346. On balance, Dr Allnutt believed that Mr Mason was suffering a mental impairment on 5 January. He considered that Mr Mason understood the nature and quality of his conduct at the time. However, he explained, a mental impairment does not guarantee a mental illness defence, and it is generally necessary to hear the patient's account of their thought processes and decision-making processes at the time of the relevant behaviour. This account is not available in this case, Dr Allnutt said, because Mr Mason's claim is that he didn't cause the fires, and that if he did, he can't recall doing so.

347. Dr Allnutt said, on the assumption that Mr Mason did start the 5 January fire, his view was that Mr Mason had the capacity to know the nature and quality of his conduct (that is, starting the fire) (Criminal Code s 28(1)(a)).

348. However, Dr Allnutt was not willing (because of the absence of relevant evidence) to express a conclusion, on the balance of probabilities, about Mr Mason's capacity to reason with a moderate degree of sense and composure about whether the assumed conduct as seen by a reasonable person was wrong (ie whether Mr Mason knew his conduct was wrong: Criminal Code s 28(1)(b)). He did however think that there was a reasonable possibility that he did not have that capacity, having regard to:

(a) his pre-existing condition;

(b) his symptoms, described as involving grandiose delusions;

(c) the absence of any clear motive for starting the fire; and

(d) his questions to Ms Studdart about reporting the fire, which might have indicated a possibly delusional sense of justification.

349. Dr Allnutt did not express a view about Mr Mason's ability to control his conduct (Criminal Code s 28(1)(c)).

350. As to 16 January fire, Dr Allnutt's view was that the mental impairment defence was less clearly available. He noted that there was still evidence of grandiose delusions held by Mr Mason, and an apparent absence of motive, but there was no evidence of "odd comments" about feeling justified. Dr Allnutt conceded that there were comments from Mr Mason suggesting an appreciation of the legal wrongfulness of lighting the fire, but said that this was irrelevant because the issue was an appreciation of moral wrongfulness.

351. In summary, Dr Allnutt's view was that, on the balance of probabilities, Mr Mason was suffering a mental impairment at the relevant times. However, he could not say, on the balance of probabilities, that if Mr Mason had caused the fires, he did not know his conduct was wrong or he could not control his conduct.

352. Dr Allnutt was asked about Dr Barker's second report (dated 6 July 2015), in which Dr Barker referred to clinical notes from both the Canberra and Concord Hospitals, and concluded as set out at [239] above. Dr Allnutt said that the clinical notes from Concord Hospital did not change his opinion and, in his view, they were "in line with" his opinion.

353. As to Dr Barker's conclusion, quoted at [239] above, that the "currently available information does not indicate a link between Mr Mason's mental illness and the alleged offending conduct", Dr Allnutt said that he didn't think one could rule out the connection "as certainly as that"; his view was that it was likely that if Mr Mason was mentally impaired, there would be some link, but the problem was to determine the degree or the level of that link.

354. More generally, he said that there was nothing in Dr Barker's report that caused him to change or amend any of his opinions previously expressed.

355. Dr Allnutt said that a GCS related to level of consciousness, not to mental disorders: a person with bipolar disorder "would score a normal on the Glasgow Coma Score".

356. The prosecutor cross-examined Dr Allnutt at great length. She made a valiant but ultimately ineffective effort to undermine his evidence in various ways, many of them not soundly based and possibly grounded in misconceptions about the GCS and the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

357. I do not intend to deal with the whole of the cross-examination in detail, but the useful points emerging from it can be summarised as follows:

(a) Dr Allnutt was not Mr Mason's treating psychiatrist, and had not met Mr Mason before September 2014. He believed when he did meet Mr Mason that Mr Mason was aware of the purpose of his assessment.

(b) A letter to Dr Allnutt from ACT Legal Aid (Mathew Kamarul) reported that Mr Mason had told Mr Kamarul that he might have lit the fires, and that he was there but he didn't remember everything. He had also said: "I had no contact with the outside world and had been living in the bush since my car was lost on 20 December".

(c) Dr Allnutt agreed that his opinion was based to a large extent on what Mr Mason told him, but denied that he had "assumed" Mr Mason was telling the truth, saying that part of the assessment was to be aware that a person could be fabricating symptoms. In Mr Mason's case, he had concluded that the symptoms that Mr Mason described "were consistent with actual symptoms of mental illness". Dr Allnutt noted that whether Mr Mason's reporting was true is a matter for the court, but that his conclusion was that a mental illness defence could be inferred.

(d) In Dr Allnutt's opinion, Mr Mason had been suffering mania and psychosis. His conclusion was based on the symptoms described by Mr Mason, the collateral information Dr Allnutt had, and the documentation. He agreed that the apparent lack of motive was also relevant.

(e) Dr Allnutt agreed that a person who suffers bipolar disorder suffers from mood disturbance, beyond what is normally seen, but does experience periods of stability. The illness is not predictable. Mood disturbances generally last for days or even months, but could change quickly; it varies from person to person.

(f) The symptoms described by Mr Mason for 5 January included increased energy, being irritable and short-tempered; broken sleep, reduced appetite and weight loss, living an itinerant lifestyle, thoughts faster than normal, and poor concentration. He also told Dr Allnutt that he held "with conviction" the beliefs that:

he had the power to change the weather and keep it still be using the energy of the sun passing through his body to the centre of the earth and reflecting back again, with a change in the magnetic field of the earth.

(g) Asked about Ms Studdart's report of Mr Mason's aggression, Dr Allnutt said that he had taken it into consideration, but didn't place weight on it "in and of itself". He agreed that aggression was not necessarily a symptom of mental illness, and could also be caused by alcohol consumption, and that Mr Mason had a documented history of alcohol abuse and cannabis use.

(h) Dr Allnutt had assumed that Mr Mason was suffering the relevant symptoms around the two periods of offending (5 January and 16 January), because Mr Mason had reported noticing the symptoms in early November and that in January they were ongoing, and that when Mr Mason was assessed around 20 January he had "continued to manifest symptoms consistent with mental illness".

(i) Dr Allnutt said that Mr Mason's belief that he could change the weather was a "grandiose delusion", and could be a psychotic belief. He said that disorganised thinking can also be a psychotic symptom, and that the 20 January assessment mentioned "tangential" thinking. Mr Mason's belief about being able to influence the environment would also have been consistent with mania. Dr Allnutt explained that mania would subsume psychosis, and that his reference to mania and associated psychosis meant that Mr Mason was "suffering from psychosis and manic symptoms rather than just psychosis". He agreed that what he had identified as psychosis might have been "escalated manic factors".

(j) Dr Allnutt said that he tried to elicit information using open questions, but sometimes he had to ask closed questions to elicit symptoms. He could not say definitively whether in talking to Mr Mason he had suggested symptoms and Mr Mason had agreed. However, he said he was satisfied that the symptoms Mr Mason described were genuine, and that he went to great lengths to satisfy himself further about that. He said that everything he had described as mental illness symptoms was applicable to 14, 15 and 16 January as well as to 5 January.

(k) Canberra Hospital notes of dealings with Mr Mason during late December 2013 recorded that he had been brought to Canberra Hospital by police on 20 December (once), in the evening of 27 December (twice), and 28 December (twice in the early hours of the morning and for a third time late that night). Dr Allnutt agreed that in each report the main concern of hospital staff seemed to be Mr Mason's intoxication, and that they had not identified him as acutely mentally unwell, but said that in his view staff were missing the diagnosis. He said:

I would argue that a man who's been brought back on so many occasions by police, particularly running in front of traffic and denying that, should raise concern about a potential underlying mental illness in a person who's minimising symptoms. I would be concerned that they were likely to be diagnosing him and interpreting his behaviour as purely related to alcohol, because alcohol does confound the symptoms of mania. I am not clear who did those assessments but they sound like emergency room assessments and triage assessments. What you read out with me would not constitute a comprehensive psychiatric assessment for diagnostic purposes.

(l) Dr Allnutt agreed that the various Canberra Hospital incident reports had not been mentioned in his review of the file, but that they were highly relevant to the issue before the court, being Mr Mason's last documented interactions with mental health provider before the incidents on 5 and 16 January, and he confirmed that the hospital record:

does not lead me to reject my opinion that he was mentally impaired at the time of the alleged offending.

358. Counsel established that Dr Allnutt was familiar with the DSM-5, and he agreed that the manual provided a two-step process for diagnosing mania. The first step involves Criterion A, which requires:

a distinct period of abnormally and persistently elevated expansive or irritable mood and abnormally and persistently increased goal directed activity or energy lasting at least a week and present most of the day, nearly every day.

359. The second part of the DSM-5 diagnosis process requires three or more relevant symptoms, present to a significant degree and representing a noticeable change from usual behaviour. The symptoms cited by the prosecutor were:

(a) inflated self-esteem or grandiosity;

(b) decreased need for sleep;

(c) more talkative than usual or pressure to keep talking;

(d) flight of ideas or subjective experience that thoughts are racing;

(e) distractibility;

(f) excessive involvement in activities that have a high potential for painful consequences.

360. The prosecutor attempted to undermine Dr Allnutt's diagnosis by an apparently misplaced challenge to his application of the DSM-5. She queried Dr Allnutt's inclusion, in the list of relevant symptoms that he said Mr Mason had reported, of "irritability", because it was not included in the list of symptoms she had quoted from the DSM-5 (at [359] above); she apparently had not noticed that irritability was relevant in the first stage of the diagnosis (at [358] above).

361. The prosecutor also challenged Dr Allnutt's assessment that Mr Mason had had severe symptoms lasting for a week or more. Dr Allnutt responded by reference to the Canberra Hospital records mentioned at [357(k)] above, and Dr Allnutt's opinion that hospital staff (but not police) had apparently misinterpreted Mr Mason's symptoms as purely alcohol-related rather than suggesting a "significant behavioural disturbance". Dr Allnutt also pointed to other evidence consistent with bipolar disorder and mania, including that provided by Mr Mason, his family, and other people who knew him at the relevant time, as well as the results of the probably lengthier assessment engaged in several days after the alleged offending.

362. Finally, the prosecutor queried the DSM-5 requirement that:

the mood disturbance has to be sufficiently severe to cause marked impairment in social or occupational functioning or to necessitate hospitalisation to prevent harm to self or others.

363. Dr Allnutt asserted that the requirement was satisfied in Mr Mason's case. He gave this evidence:

As I said earlier, he was - he had lost his job. [He] was living [an] itinerant lifestyle. His relationships had broken down with his wife. He was behaving in a manner that was bringing him repeatedly back into hospital which I agree could have been alcohol-related, but it's also consistent with impairment [in] functioning of a clinically significant degree.

364. The prosecutor then attempted to interpret Dr Allnutt's comments as suggesting that losing one's job, generally, is a sign of mental illness, but Dr Allnutt explained that in applying this DSM-5 requirement:

when you measure severity you look at functioning. And you look at functioning in three broad areas. Occupation, capacity, interpersonal relationships and social interactions and social capacities, and he manifested - he's manifesting impairment in that - in all those areas at the material time. So he was impaired in his functioning consistent with mania of clinical severity.

365. Dr Allnutt then had to point out that there was no requirement in the DSM-5 criterion for hospitalisation ("it's or, not and"), and that in any case Mr Mason had been taken to a hospital.

366. Dr Allnutt noted that his opinion about mania had been confirmed by Dr Barker, who was also a specialist and expert in the area, and was consistent with pre-existing diagnoses by other clinicians. He said he was quite confident that his diagnosis of mania was correct, whether or not it met the full criteria set out in the DSM-5.

367. Counsel also sought to challenge Dr Allnutt's evidence by pointing out:

(a) that the reliability of a psychiatrist's opinion depends significantly "on the reliability of the information that you're provided", a proposition that Dr Allnutt conceded was stating the obvious; and

(b) that some of the information Dr Allnutt had relied on had related to events around 20 December 2013, which was some weeks before the alleged offences.

368. Counsel pursued Dr Allnutt's comment in his report that Mr Mason appeared to have a "somewhat limited" recollection of his circumstances in the time leading up to and during the period of the alleged offending, and also a limited recollection of some events that had been recounted to him by friends. Dr Allnutt explained that there are various possible causes for absence of recollection, including:

(a) "a frank lie";

(b) psychogenic amnesia (in which an event is so traumatic that the person "unconsciously [puts] it out of their mind");

(c) intoxication causing a blackout and consequential memory impairment; and

(d) sometimes, psychosis.

369. He conceded that mania was not a common cause of "blanket loss of memory", although the associated distractibility could lead to a patchy memory of aspects of events. He said that mania causes an impairment in judgment, particularly social judgment, and a person experiencing a "full manic episode" would not be able to objectively reflect on his or her behaviour while experiencing the manic symptoms, but also that "a person with mania can have patchy memory for something because of their distraction and inattention that they may experience ... but it's not common that people will forget an entire event".

370. Dr Allnutt agreed that Mr Mason appeared to have been able to describe his objective experience at the time of the alleged offending, but said that he wasn't particularly surprised by that, because it was common for people to be able to recall their symptoms. He noted that psychiatrists know what it's like to be a person with mania because manic people recall their symptoms and tell them to us. He said that a person's ability to recall symptoms was completely different from being able to reflect objectively on his or her behaviour at the time of an episode.

371. Asked about malingering, Dr Allnutt said that it was the "conscious fabrication of mental illness symptoms", that there are tests that can indicate exaggeration of symptoms, that the tests are generally performed by psychologists, and that he had not tested Mr Mason for malingering. He agreed that Mr Mason said he had no recollection of lighting the fire on 5 January, that he didn't believe he had lit the fire, that he had not lit the fire on 16 January, and that at the time of the fires he thought there was nothing wrong with him, but that in retrospect it appeared to him that he had probably been experiencing a mental illness. Dr Allnutt said that Mr Mason had described his symptoms in "sufficient detail".

372. Dr Allnutt confirmed that in Dr Barker's report, prepared in March 2014, there is no record of Mr Mason disclosing information about any mental health symptoms, but this did not surprise Dr Allnutt, because he did not believe that Dr Barker had actively reviewed whether Mr Mason had any symptoms of mental illness. He noted that despite this, Dr Barker had concluded that at the time of the offending Mr Mason had a mental impairment. Dr Allnutt noted, however, that "the account that [Dr Barker] took is not inconsistent with a manic phase at the time of the alleged offending". He agreed that Mr Mason had been "cooperative enough" for him to gain information from Mr Mason.

(a) what Mr Mason was reported to have told his Legal Aid lawyer (that he couldn't remember, but he might have lit the fires) was different from what Mr Mason had told him on 16 September 2014; and

(b) the inconsistency had raised some concern about the truth of what Mr Mason had told him;

and said that this was why he had had regard to what he described as "collateral information" obtained from other people.

374. The prosecutor identified several items of information that, she suggested, would have caused Dr Allnutt to treat Mr Mason's claim of mental illness with some scepticism, being:

(a) a file note made when Mr Mason was admitted to hospital on 4 November 2013, recording "a component of manipulative nature/maladaptive traits when it comes to meeting his needs", that "alcohol is the main problem, provided he is motivated to change", and that Mr Mason refuses to consider long term residential rehabilitation; and

(b) a file note from when Mr Mason was inducted into the AMC on 21 January 2014, in which a psychologist recorded that further assessment would be required, "for observation due to inconsistencies and possible history of not being truthful with [Mental Health]" and, possibly, a history of non-compliance.

375. Dr Allnutt said that this material did not cause him to alter his opinion and that it was necessary to take "the entirety of the documentation" into consideration.

376. When Dr Allnutt resumed giving evidence nearly two weeks later, he was asked about the reports provided to him by people who were dealing with Mr Mason in the months leading up to the alleged offending, Dr Allnutt agreed that he had assumed the reports were all true, and said that it wasn't really his role to determine whether that was correct. However, he noted that all the information concerned was consistent with Mr Mason suffering mania, and noted in particular that the alcohol and drug worker who met Mr Mason around the time of the alleged offending had considered he was manic.

377. However, Dr Allnutt said, he would not have placed much reliance on the reports of the various people if there had been evidence that they had all conspired with Mr Mason to perjure themselves.

378. Dr Allnutt reiterated that the entirety of the documentation needed to be taken into account, and said that while Mr Mason's account of his illness might not be true, there was collateral information that supported his account, and that looking at all the evidence he had concluded, on balance, that Mr Mason was likely mentally ill at the relevant time.

379. Dr Allnutt confirmed that the collateral information he had relied on in addition to Mr Mason's report included records from Canberra Hospital and Concord Hospital as well as information from other people, and that after providing the first report, Dr Allnutt had received a letter from ACT Legal Aid dated 19 December 2014 asking him to speak to the "collaterals" and get some more information.

380. Dr Allnutt agreed that he had said that it was difficult to predict when a person suffering bi-polar disorder would become manic or depressed, but disagreed that this meant a documented psychiatric history of bipolar affective disorder and schizoaffective disorder would be of limited assistance in trying to determine a person's state of mind at a particular point in time. Rather, he said, such a history was helpful "because it suggests a pre-existing disposition to those symptoms", although he conceded that it was difficult to predict when particular symptoms would manifest even in a person prone to such symptoms.

381. The prosecutor made a determined effort to establish that Mr Mason's real problem was alcohol abuse rather than any kind of mental impairment, by identifying various hospital and other records indicating Mr Mason's excessive use of alcohol and the consequences of that.

382. Dr Allnutt agreed that alcohol-induced symptoms do not "count towards a formal diagnosis of bipolar", because alcohol can mimic or aggravate, and can be used to manage, the symptoms of mental illness, and it may accordingly be difficult to distinguish between symptoms caused by an underlying mental illness and symptoms caused by alcohol consumption. He explained that this difficulty was why, as a clinician, one needed to look at the evidence "in its entirety".

383. Dr Allnutt conceded that the medical records, as well as other evidence, indicated various incidents and contacts with medical professionals in which Mr Mason's alcohol abuse had apparently been identified as significant, including in discharge reports, even where there was also some evidence of mental difficulties. Dr Allnutt said that he accepted the "alcohol dependence" diagnosis, and had not deliberately omitted it from his report. However, Dr Allnutt said, he was not surprised that Mr Mason had diagnoses of both bipolar affective disorder and a substance abuse dependence, being alcoholism, because these are often co-morbid.

384. Dr Allnutt held to the view that Mr Mason's medical history suggested that on a number of occasions Mr Mason had probably been both intoxicated and experiencing manic symptoms; for instance, the medical records of Mr Mason's admission to hospital in late December 2011 mentioned excessive use of alcohol, but also a diagnosis of bipolar affective disorder.

385. Dr Allnutt agreed that Mr Mason had given a history of alcohol abuse dating back to 1989, and that he had told Dr Allnutt that the night before the 5 January fire, he had been drinking heavily. Despite this, and despite the prosecutor's best efforts, Dr Allnutt did not back away from his opinion that, taking all the relevant information into account, a reasonable conclusion was that, at the time of the alleged offending, Mr Mason's symptoms and behaviour were probably attributable to his mania "mixing in with" his alcohol use.

386. Dr Allnutt was asked about each of the particular reports he had received from people who knew Mr Mason.

387. Joe Lopez had been with Mr Mason on the night of 15 January 2014. Dr Allnutt agreed that what Mr Lopez had reported to him was consistent with alcohol consumption.

388. Zac Barack had not been able to give any information about Mr Mason's condition around the time of the alleged offending, but described Mr Mason as going through highs and lows. Dr Allnutt said he considered that information "equivocal".

389. Mr Mason's daughter had written to Dr Allnutt, saying that she hadn't seen much of her father around the time of the alleged offending, but had last seen him at a birthday celebration on 15 December 2013. Dr Allnutt said that the symptoms she described were more consistent with a person who was manic, and noted that since Mr Mason had a history of alcohol abuse dating back to the 1980s, his daughter's description of his behaviour went beyond his alcohol abuse. He pointed out that members of the family spoke about a change in Mr Mason's demeanour and described symptoms consistent with mania, while conceding that this did not exclude Mr Mason also being intoxicated on some occasions.

390. Dr Allnutt had spoken to Mr Mason's daughter by phone. She had said that it was "hard to tell the difference between him being unwell and being intoxicated".

391. Michael Brasser had written to Dr Allnutt (letter dated 29 April 2015) describing Mr Mason's demeanour on the day before the first fire. Dr Allnutt agreed that what was reported by Mr Brasser, in isolation, could have been attributable just to alcohol consumption.

392. Dr Allnutt had received a letter from Mr Mason's son Liam. Dr Allnutt had interpreted Liam's description of Mr Mason as having "a bipolar episode" as a reference to Mr Mason being manic, and to being "mentally unwell", but he had not spoken to Liam to confirm this. Dr Allnutt agreed that Liam's description of Mr Mason being "disrespectful and arrogant" to Liam's mother was not necessarily a manifestation of a mental illness, and a mental illness was not the only cause of someone being disrespectful and arrogant to another person.

393. Dr Allnutt conceded that much of what Sylvia Mason had reported to him could be attributable to alcohol consumption with mania, but he believed that it was not purely attributable to alcohol consumption. He also agreed that alcohol consumption might be the cause of a person roaming about at night singing with the radio, not concentrating, and becoming argumentative.

394. Dr Allnutt had received a report dated 1 May 2015 provided by Mysh Kirkwood, described as a drug and alcohol practitioner, stating that in November 2013 Mr Mason had been under observation at the adult mental health assessment unit, where he "had begun karate-chopping everything on his table", and that on 24 December he had been seen at the Optus shop in Westfield Woden, apparently "heightened emotionally and ... laughing, with no awareness of his surroundings" and "energetic". Mr Kirkwood had thought that Mr Mason was manic on that day. Dr Allnutt agreed that Mr Kirkwood had not identified himself as a psychiatrist or a psychologist, but as an "alcohol and drug worker", and that he (Dr Allnutt) had not discussed with Mr Kirkwood what he (Mr Kirkwood) meant by "manic".

395. Dr Allnutt said that all the accounts he had referred to were consistent with a mood disturbance but agreed it was possible that they were also consistent with alcohol consumption.

396. The prosecutor put to Dr Allnutt the descriptions given by various witnesses of Mr Mason's demeanour on 5 January 2014, including in particular that he was casual in talking to police officers, fairly relaxed, well-spoken, quiet, calm and lucid, that he had a GCS of 15, and that when he complained of chest pains, he seemed anxious, but that police were not asked to accompany the paramedics escorting Mr Mason to hospital.

397. Dr Allnutt agreed that there was nothing out of the ordinary about Mr Mason's behaviour as described by the witnesses, except his anxiety, and that his anxiety could have been caused by the fact that he had been arrested and taken to the police station. He did not agree, however, that if Mr Mason had been experiencing a manic or psychotic episode, he would necessarily have demonstrated noticeable symptoms of mental illness.

398. The prosecutor noted the evidence that on 16 January Mr Mason had suffered burns, and an ambulance had been called. Again he was recorded as having a GCS of 15. When he was discharged from Concord Hospital several days later, a note was made that he had been discussed with the psychiatry registrar, who said that as Mr Mason had not expressed thoughts of self-harm and "was behaving appropriately", there were no grounds for detaining him "under the Mental Health Act". The records indicated that Concord Hospital had been aware of Mr Mason's diagnosis of bipolar disorder.

399. The prosecutor referred to evidence about events on 16 January, to the effect that Mr Mason had been seen fanning a fire in a forested area, that he had not responded when a witness yelled out to him, and that he was found shortly afterwards under a bridge and partially submerged, at which point he had a conversation with a police officer and gave an account of what had happened. Dr Allnutt agreed that none of that was evidence of a mental illness.

400. Dr Allnutt said that he was not necessarily surprised that the various witnesses had apparently not noticed Mr Mason displaying obvious mental illness symptoms, but it was one of the things that he would take into consideration. He noted, however, that on many occasions when he had assessed people and looked at witness statements, the witnesses either weren't aware of, or hadn't reported, symptoms of mental illness, and agreed that this might be relevant to the severity of the symptoms that might have been present.

401. However, Dr Allnutt explained, people with mania "are sometimes very good at hiding their symptoms and, at times, controlling themselves". Dr Allnutt noted that there were references in the clinical notes to Mr Mason being "guarded" about his symptoms, and mentions in the reports he had received about Mr Mason lying to doctors about his symptoms, and being able to hide his symptoms when he was sober; he also pointed out that "laypeople aren't necessarily that good at picking up symptoms of psychiatric illness, nor the police, and ... probably some ambulance people". Again Dr Allnutt emphasised the need to consider all available information. He agreed that he had not asked Mr Mason whether he had been hiding his symptoms on either of the two days in question.

402. Dr Allnutt agreed that the references, in nursing notes made while Mr Mason was in Concord Hospital being treated for burns, to his mood swings (recorded as "tearful, then jolly, then upset") could have reflected simply "loneliness or shock or just the trauma of having been burnt and being treated in hospital". He also agreed that those mood swings were probably the reason why Mr Mason was then assessed by a psychiatric registrar, and that the hospital "discharge referral", dated 18 January 2014, showed that "the hospital" was aware of Mr Mason's earlier diagnosis of bipolar disorder.

this note does not reflect a comprehensive psychiatric assessment for diagnostic purposes in particular to assess the nature and severity of a mood disorder.

404. He rejected the prosecutor's attempts to suggest that the reason the note didn't record any mood or psychotic symptoms was that none were present, saying, in effect, that if there had been a proper psychiatric assessment then the process should have been recorded in the notes, at least to show that the necessary interaction and investigation had occurred. He explained what he would have expected:

There needs to be an exploration of a person's psychiatric history as well as a discussion about his prior history of symptoms, his treatments. Generally, a psychiatric assessment involves basically getting information of a similar nature to which is reflected in the psychiatric reports that come to the court.

405. Dr Allnutt then gave his opinion about the notes concerned:

This is a focus on one aspect which is drug and alcohol. Now, it is comprehensive but it's only drug and alcohol history. That is a small aspect of a psychiatric assessment and you're trained that we need to keep notes so that under these circumstances people aren't second-guessing as are lawyers trained to keep notes of interactions. So all I can say is that this assessment suggests a focus purely on alcohol. There was no evidence that this Registrar assessed his mental state for diagnostic purposes. And if it had been for a diagnostic purposes I would have expected - you know - mania, because that would have been the purpose of the assessment, if it was for assessment of mental illness or mania.

406. Dr Allnutt pointed out that the fact that someone was suffering a manic episode would not necessarily have been apparent on the day after the incident "in a man who's receiving Propofol, Fentanyl and Valium". Dr Allnutt explained that Valium was used to treat mania, and that (at least) one of the first two is a pain-killer used as an anaesthetic; he referred also to the possibility that Mr Mason "probably want[ed] to get out of hospital to go and drink and want[ed] to hide his symptoms". He was clear that the assessment had not ruled out mania. Pressed by the prosecutor to agree that the assessment hadn't ruled out that Mr Mason wasn't manic, he repeated that the notes suggested that there had been no assessment and therefore there was simply no evidence. Eventually he conceded that in the absence of any record of an assessment, he could not know that there had been no assessment.

407. The prosecutor raised with Dr Allnutt the GCS as an indicator of mental illness, and he explained that it is irrelevant in diagnosing mania, or indeed in diagnosing mental illness more generally. He agreed that in assessing consciousness using the GCS, the assessor would look at motor skills, and also whether a person is saying things that are in the context inappropriate; counsel then referred to "verbal motor skills", claiming that evidence about the significance of those skills had been mentioned in the evidence of "the ambulance officers". After further exchanges, Dr Allnutt said:

a normal Glasgow Coma Score does not rule out mania as a diagnosis ... a normal Glasgow Coma Score is irrelevant to the issue of determining mania.

408. I note that, despite the time devoted to this issue, and despite later mentions of Dr Barker's identification of one aspect in which there might be some overlap between a person's GCS and the determination of mental impairment (at [216] above), the prosecutor did not rely on the GCS issue in her final submissions.

409. In reaching his conclusions in a report prepared in July 2015 (incorrectly dated 2014), Dr Allnutt had placed some reliance on Mr Mason's apparent absence of motive, suggesting that evidence of mental impairment symptoms and an absence of motive made it reasonable to infer that the offending was driven by mental impairment. He agreed, however, that there could be an unknown motive, and that lack of motive was not a stand-alone diagnostic criterion for mental illness, and nor was it positive evidence of mental illness.

410. In his report, Dr Allnutt had suggested hypothetical "motives" derived from mental illness symptoms, but he conceded that he did not know Mr Mason's motive and the fires might have been lit for reasons unrelated to Mr Mason's bipolar disorder.

411. Dr Allnutt conceded that he hadn't expressed a positive opinion about the contribution of mental illness to Mr Mason's actions, and that he had not been able to say that, on balance, Mr Mason was suffering a mental impairment such as to exclude criminal liability. He accepted that if what Mr Mason had told him about his symptoms was unreliable or untruthful, and if the "collateral information" that he had relied on could be explained by drug or alcohol consumption, that would affect his conclusions.

412. He also agreed that, while it was difficult for him to ignore Mr Mason's documented history of mental illness, it would be stating the obvious to say, in effect, that if Mr Mason's account of his symptoms had been unreliable (such that he wasn't actually mentally ill at the relevant time), and that all his observed "symptoms" were in fact attributable to alcohol consumption, then there had been no mania. In such a case, Dr Allnutt said, he would change his opinion.

413. Counsel drew Dr Allnutt's attention to Dr Barker's reports, noting that in relation to the 5 January fire Dr Barker in his original report said that he hadn't been able to determine with any certainty how long any symptoms had been present before the 20 January assessment. Dr Allnutt agreed that the only difference between the information he had and the information Dr Barker had was that he (Dr Allnutt) had Mr Mason's description of his symptoms and the "collateral information" from others about Mr Mason's behaviour. However, asked by the prosecutor whether his opinion would have been different if he hadn't heard from Mr Mason and hadn't received the "collateral information", Dr Allnutt said that he would have had more difficulty "concluding a diagnosis", and would probably have had difficulty in "concluding a mental illness at the time definitively". However, he said he would have been concerned, and outlined the other material that suggested the presence of mania, as follows:

He's got a pre-existing diagnosis of a bipolar effective disorder. Other psychiatrists have noted that when he drinks alcohol he becomes psychotic. He, in the admission, in 2011 he's treated with high doses of Diazepam and started on a high dose of valium valproate. The question is - Diazepam in itself can minimise manic symptoms and so can a high dose of valproate. The question is why is his valproate continued? Then, in the time, leading up to the offending he's brought to hospital on multiple occasions by the AFP, not taken to gaol. The AFP seemed to be picking up on something more than intoxication it seems. In [the Burns Unit] he has volatile emotionally [sic], to the extent that they ask for a psychiatric assessment.

...

Then he gets - he eventually lands up in gaol and a diagnosis of mania is made. Now, I'm putting that together outside of that stuff. I mean that's - if I could just say this - that's why that information has relevance. That's how this information around his longitudinal history has relevance to me. Now, without interviewing him or getting collateral information I would say - I wouldn't rule out the possibility he was manic at the time but I would be saying I have a hard time making that diagnosis but I would be concerned.

414. Material from the Australian Bureau of Meteorology was tendered by the Crown and admitted without objection. It showed that the minimum temperature on 5 January was relatively low (6.4°C) and on 16 January was relatively high (16.3°C). Maximum temperatures were 28°C on 5 January and 40°C on 16 January.

415. I am satisfied that all the Crown's non-expert witnesses were doing their best to be truthful, and to report their experiences accurately, and that Mr Mason's family and friends also did their best to give truthful and accurate evidence.

416. Mr Mason seemed to be doing his best in challenging circumstances, especially arising from his admitted memory difficulties. At times during his evidence he was clearly on the defensive, and there was evidence suggesting that Mr Mason has the capacity to become aggressive when he is feeling frustrated.

417. The Crown asserted that Mr Mason "was not a credible witness". To the extent that this assertion relied on the fact that Mr Mason had given "multiple inconsistent accounts to various people at various times", there is some validity to this claim. However, there is plenty of evidence that, at various times dating back at least to December 2013, Mr Mason's thought processes were disturbed. Whether this was a result of mental illness or intoxication does not seem to matter to the possibility that his memory of relevant events was generally not particularly good, and especially that after the traumatic events of 16 January, his capacity to recall every detail of preceding events may have been further affected. That is, Mr Mason was clearly not an entirely reliable witness, but this did not necessarily reflect an unwillingness to tell the truth.

418. There were various discrepancies between Mr Mason's evidence in court and what he had told other people at various times on and after the 5 January and 16 January fires. It was notable, however, that in important respects Mr Mason's evidence in court was consistent with claims he had made, in a variety of circumstances and to a variety of people, right from the time of the fires (for instance, his claim to have been woken by a woman's voice on the morning of 16 January was first made to Constable Evans, who was the first person to reach the scene of the fire and who had discovered Mr Mason in the water).

419. I note also that some of the challenges to Mr Mason's credibility relied on his failure to volunteer information or explanations at certain points, rather than to the content of what he did say. For instance, the Crown submission that if Mr Mason "genuinely had the knife on him for the purpose of cutting up meat he would not have lied to police and [denied] having the item on him, but rather [would have offered] that explanation" cannot be accepted, having regard to Mr Mason's explanations as summarised at [306]-[308] above and discussed at [605] below. The Crown's further submissions about Mr Mason's failure to provide these explanations to either Dr Barker or Dr Allnutt are also unconvincing, since they seem to assume at least one of the following more or less unlikely propositions, being:

(a) that at the time Mr Mason spoke to the doctors he must have been aware of the details of the knife possession offence, including the available defences, and aware that he should explain his defence to that charge to the doctors, presumably to save them wasting time on that charge; or

(b) that Mr Mason should have realised that his reason for possessing a knife while he was living rough (however obvious to him) was nevertheless relevant to the assessment by the doctors of his mental condition at the time of the fires.

420. It is possible that Mr Mason's several concessions, that he might have started one or both of the fires and that he might have stolen the dog, but that he can't remember doing such things, were deliberately disingenuous, and that in fact he knows he did start the fires and steal the dog. It is also possible, however, that Mr Mason genuinely does not know how the fires started but is willing, because of the gaps in his memory of the relevant events, to concede that he might have been involved. It is worth noting that if Mr Mason did start the fires, and does know that, he might have been better off admitting to the relevant actions and focussing on establishing a mental impairment that affected him in such a way as to excuse him from criminal responsibility; in the current circumstances, however, that task has been made more difficult (not only for Mr Mason but also for the psychiatrists) by Mr Mason's assertion of innocence and his resulting inability to offer any information that would be useful in establishing the mental impairment defence.

421. I note also that not all the Crown's criticisms of Mr Mason's evidence are convincing. For instance, Mr Woods said that there was no evidence suggesting that the 16 January fire had involved an explosion, that pine tree sap is not an accelerant and is not a flammable item, and that he did not believe that the intensity of the fire would have ignited sap from any tree (at [194] and [195] above). This evidence was presumably called to discredit Mr Mason's description of the fire to Constable Evans (at [161] above) and to Dr Barker (at [210] above), and repeated, with a specific reference to an explosion, in Mr Mason's own evidence (at [265] above) in which he suggested he had been blown up into the air, and his belief that this had been caused by sap.

422. However, while Mr Mason's evidence in court about that aspect of the 16 January fire might have been a dishonest account of the fire, it might instead have been simply a somewhat exaggerated version of the matters described in Ms Rollings' evidence at [150] and [151] above; as such, that evidence was not significantly undermined by the evidence from Mr Woods that suggested that Mr Mason's acquaintance at Concord Hospital might not have given him accurate information.

423. The prosecutor described aspects of Mr Mason's evidence as "self-serving", which would seem to be an accurate description in relation to every accused person who chooses to give evidence. Since an accused person is not required to give evidence, presumably every accused person who gives evidence does so in the belief that it is in his interests to put his version of the facts before the fact-finder. The prosecutor seemed, however, to be using the term "self-serving" pejoratively (as indeed it is usually used), but the basis on which she did so did not become clear.

424. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.

425. Before considering the expert evidence in this case, it is appropriate to remind myself about the way in which such evidence should be approached.

426. I note that the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion, the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.

427. This means that if, having given the matter careful consideration, I do not accept the evidence of an expert witness, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences, if they are relevant to the issue upon which the expert evidence relates.

428. If there is a conflict between the evidence of the experts, I must resolve that conflict largely based on which party has the onus of proof in relation to the relevant issue. It is, however, up to me to decide whose evidence and whose opinion I accept, in whole or in part, or whose evidence I reject altogether. I must remember that the expert evidence relates only to parts of the case, and that while it may be helpful to me in reaching a verdict, I must reach my verdicts having considered all the evidence.

429. In resolving any conflict in the expert evidence, I am entitled to consider that particular evidence in the context of all of the evidence that is before me, and especially that part of the evidence which may have a bearing on the acceptance or otherwise of a particular opinion.

430. As already noted, this trial was unusual in that it was not until quite late in the proceedings that the defence became aware that the prosecutor rejected not just the existence of a mental impairment defence for Mr Mason but also the claim that at the time of the relevant events Mr Mason was suffering from a mental impairment at all, which position had the effect of substantially expanding the significance of the psychiatric evidence in the trial.

431. Dr Barker, the psychiatrist who had prepared a court-ordered report about Mr Mason's mental condition after speaking to him only a few weeks after the 16 January fire, was called by the Crown to give evidence about what Mr Mason had said to him about the circumstances of each fire in those early discussions.

432. When it emerged that the defence's witness, Dr Allnutt, would be challenged on his conclusion that Mr Mason had been suffering from a mental impairment at the relevant times, and that this would involve Dr Barker giving evidence about those same issues, the prosecutor said that Dr Barker had not seen either of Dr Allnutt's reports, that in her view Dr Barker did not need to see them, and that she did not intend to show them to Dr Barker. In argument, however, she conceded that that there would be nothing to prevent defence counsel from putting Dr Allnutt's report to Dr Barker in cross-examination.

433. It is not at all clear what the prosecutor sought to achieve by withholding Dr Allnutt's reports from Dr Barker, either at all or until the last possible moment. As far as I could see, putting Dr Barker in the position of having to defend his opinions by reference to Dr Allnutt's reports, but not permitting him to see those reports until he was in the witness box, would have created real problems for the Crown and for Dr Barker. The approach would have wasted the time of the Court and all other participants in the trial while Dr Barker, in the witness box or during a break in the hearing, read and absorbed Dr Allnutt's detailed reports. It would also have put Dr Barker at a real disadvantage in giving his evidence, and could have caused him professional embarrassment given the difficulty of responding effectively to Dr Allnutt's report in such circumstances.

434. Fortunately, during one of the extended breaks in the hearing of this trial, and after I had drawn counsel's attention to an extract from Ian Freckelton QC and Hugh Selby, Expert Evidence (Thomson Reuters, 5th ed, 2006) at [7.10.10], Dr Barker was provided with copies of Dr Allnutt's reports, and was accordingly able to give his evidence about Mr Mason's mental condition from an informed position.

435. Having each been permitted access to the views of the other doctor, Dr Barker and Dr Allnutt showed an appropriate willingness to consider each other's views, and as a result finished up substantially in agreement about Mr Mason's mental state at the time of the fires, and about whether and on what basis a mental impairment defence could be asserted.

436. Each of them remained conscious that Mr Mason denied causing the fires, that whether Mr Mason had actually caused the fires remained unclear, and that Mr Mason's denial of any recollection of the circumstances of the fires meant that there was no evidence from him on which they could base conclusions about his state of mind if and when he had started either of the fires.

437. Accordingly, while the two witnesses essentially agreed that Mr Mason suffered from a mental impairment at the time of the fires, each of them was appropriately cautious about expressing an opinion about whether the mental impairment had any relevant effect for the purposes of s 28 of the Criminal Code.

438. I have no doubts about the honesty of the witnesses called to give expert evidence about the causes of the fires, Richard Woods and Roanna Trebilcock, or about the reliability of the evidence they gave about ways of classifying the causes of bushfires.

439. I do, however, have reservations about the weight that can properly be given to their evidence about the likely causes of the fires to which the bushfire charges relate.

440. The fundamental problem is, in general terms, that neither of the classification schemes for bushfire causes applied by Mr Woods and Ms Trebilcock respectively has a structural logic that enables it to be relied on to exclude certain kinds of causes or to identify a particular cause as the only possible one. Nor, at least as explained in this case, do the schemes seem to account for the possibility that, at least for some causes of fires, relevant evidence may be destroyed in the fire concerned. These classification schemes may be extremely useful in various contexts (for instance in fire prevention programs), and may even be useful in criminal matters by narrowing down the possible causes of a fire (so as to focus investigations on finding real evidence capable of proving the cause to an appropriate standard). However, they are not so useful, of themselves, in criminal prosecutions.

441. For instance, the classes of fire cause identified by Mr Woods were as follows:

(a) lightning strike;

(b) a campfire;

(c) smoking or cigarette butts;

(d) burning debris;

(e) equipment use;

(f) juvenile activity;

(g) rail or power lines;

(h) miscellaneous (including power lines and glass refraction of sunlight);

(i) deliberate.

442. The lack of structural logic I have mentioned emerges first from the fact that the categories do not appear to be mutually exclusive and, secondly, because it seems that in total they might not be exhaustive. The lack of mutual exclusivity arises because the possible causes are not all categorised using the same approach; that is, some of the categories refer to the physical ways in which fires may be started (eg by lightning, by a cigarette, by a piece of equipment), some to the kinds of people who might start them (eg juveniles) and some to the motives or mental states of people who might start them (eg deliberate), and the various categories may accordingly overlap. For instance, a fire might be started, deliberately, by a juvenile, using a cigarette. That is, the identification of one of those categories as relevant in a particular case does not necessarily exclude all the other categories.

443. It was not clear from Mr Woods' evidence whether the "miscellaneous" category covered only "power lines and glass refraction of sunlight" or included other unexplained or accidental fires, or whether the "deliberate" category was in fact the residual category into which Mr Woods would have put any fire whose specific cause could not be identified. Some of his evidence (at [198] above) suggested that "deliberate" did not mean "deliberate" in a way relevant to the criminal law, but something more like "involving human intervention", which intervention, one would assume, could be intentional, accidental or even, possibly, involuntary. Mr Woods indicated that in classifying a fire as "deliberate", he did not necessarily assume any particular "motive" for the doing of the "deliberate" act, apparently using "motive" to refer to something like "state of mind".

444. Nor was it clear whether Mr Woods' evidence that there was no category of "accidental" meant that accidental fires belonged in one of the other categories or that in his classification system there was no recognition of the possibility of an accidental fire. Either way, this is a problem in the current case, because Mr Woods did give the impression that eliminating all the other possible causes (or, more accurately, failing to find evidence for any of the other identified causes), left as the only available category "deliberate". What is clear is that such a classification process cannot be relied on of itself to establish a person's criminal liability for such a fire.

445. The classification scheme used by Ms Trebilcock was slightly different, involving the following classes:

(a) lightning;

(b) cigarette;

(c) campfire;

(d) electrical (including overhead power lines, electrical appliances, and other sources of electricity);

(e) incendiary (referring to a deliberate fire); and

(f) accidental.

446. Like Mr Woods' scheme, this scheme suffers from the fact that the categories are not mutually exclusive, but the inclusion of categories identified as, in effect, deliberate and accidental does seem to ensure that the scheme is effectively exhaustive. On the other hand, it remains clear that excluding all the specific ways in which a fire might start does not answer the question whether a fire involving human activity was started deliberately or accidentally.

447. Ms Trebilcock's evidence about the connection between the pieces of metal found in the RSPCA cage from which the dog had disappeared and those found in Mr Mason's possession was not challenged, and in my view the relevant photographs spoke for themselves. Mr Mason did give vague but apparently exculpatory evidence about how he came into possession of his pieces of metal, but this was not sufficient to undermine the significance of Ms Trebilcock's evidence.

448. I note first that there are several ways in which Mr Mason could have committed an act constituting the physical element of a bushfire charge, being by starting a fire, by maintaining a fire or, in certain circumstances, by failing to contain or extinguish a fire he had lit, in each case with the necessary mental element of intention or recklessness. In short, to prove his guilt, the Crown must prove, first, that he either started the fire or maintained it.

449. Much of the evidence about the physical element of the offences, and in particular the relevant events, is unchallenged, and need not be repeated here.

450. Significantly, the evidence shows that Mr Mason had the opportunity to start each fire, by putting him in the vicinity of each of the fires at the relevant time and establishing that he had the capacity to start a fire (the prosecutor focussed on Mr Mason's possession of a cigarette lighter, but I note that at least after the 16 January fire he was also in possession of a box of matches). It also shows Mr Mason unwilling to engage with others, especially authority figures (police, fire-fighters, ambulance officers) at relevant times.

451. However, there is no direct evidence about how either fire started, or of Mr Mason's involvement in starting it, and no evidence of motive; in short, there is nothing except means and opportunity directly linking Mr Mason with the start of each fire. In these circumstances an inference could be drawn, from the evidence of Mr Mason's presence at the scene and his possession of a cigarette lighter, that Mr Mason's conduct caused the fire - but it is a weak inference, and far from the only available one, and the prosecutor's submission that this is "the inference to be drawn" from the evidence is unconvincing. I note in passing that in the Crown submissions, Mr Mason's comment to Constable Timmiss (at [144] above) is misquoted as referring to a cigarette butt; given that Mr Mason appears to have rolled his own cigarettes (see his reference to "rolling a smoke" in the material quoted at [468] below), the significance given to cigarette butts (or to their absence from the scene of a fire) may in this case be misplaced.

452. In relation to the 16 January fire, there is direct evidence (from Ms Rollings) of Mr Mason acting in a way that was interpreted by the witness as "fanning" a fire in a tree and which, if it were established, could constitute "maintaining" a fire. Mr Mason agreed with the substance of her evidence (that he was standing next to the burning tree and moving his arms), but says that he was trying to put out the fire.

453. Accordingly, in order to prove that Mr Mason acted in a way that constituted the physical element of the offence, the Crown seeks to rely on particular interpretations of the evidence, especially:

(a) the evidence said to show consciousness of guilt;

(b) the expert evidence about the cause of the fires; and

(c) the evidence that is said to suggest Mr Mason's guilt by coincidence reasoning.

454. I shall deal with the coincidence evidence after reviewing the evidence specific to each fire.

455. As already noted, Mr Mason had the means and the opportunity to start each of the fires.

456. This fire was close to where Mr Mason had been camping. Ms Studdart saw Mr Mason coming from the area of the fire while it was still putting out smoke, and asked Mr Mason whether she should "call in" the fire; Mr Mason called her a do-gooder, suggested she shouldn't waste police time, and told her to mind her own business.

457. After fire-fighters arrived, Mr Mason left the scene of the fire, where he had been standing, but was soon found by police hiding in long grass. He was then arrested.

458. On the day of the fire and over subsequent months, Mr Mason gave different people different but generally exculpatory descriptions of the events and of his own involvement in them. Notably, on several occasions he had considered the possibility that he might have caused one of the fires, whether by throwing a cigarette (at [144] above) or in some unspecified way (at [277] and [279] above).

459. Mr Mason's denial that, when the fire-fighters arrived at the scene of the fire, he was "just standing there" while it burned, seems more likely to indicate that his memory was unreliable than that his evidence was untruthful. Mr Mason had unarguably been present near the scene of the fire, and was arrested nearby shortly afterwards. If in fact Mr Mason remembered being there and being aware of the arrival of the fire-fighters, then denying that he was there when the fire-fighters arrived would achieve nothing except damaging his own credibility.

460. The statement in the Crown submissions that "This fire was no accident" is presumably only a rhetorical flourish, since it is a conclusion sought to be drawn from the evidence rather than a proposition that has an identifiable basis in the evidence.

461. The Crown relies on lies and flight as showing a "consciousness of guilt" on the part of Mr Mason in respect of the 5 January fire.

462. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Edwards), the majority (Deane, Dawson and Gaudron JJ) said about the significance of lies (at 208-211):

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".

...

463. I note the exhortation, set out in the extract from Edwards quoted above, that:

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.

As will become apparent, the Crown, although clearly identifying what was said to be a lie, did not attempt to explain how the alleged lie could be interpreted as an admission against interest.

464. I note also the Crown's submission that the facts from which a consciousness of guilt may be inferred are simply part of the circumstantial case against Mr Mason and do not need to be proved to any particular standard (Edwards at 210).

465. In this case, I may treat a lie told by Mr Mason as showing a consciousness of guilt on his part in relation to the 5 January fire if and only if:

(a) I am satisfied that Mr Mason deliberately lied about a significant circumstance or event connected with the bushfire offence alleged to have been committed on 5 January 2014; and

(b) I find that the reason Mr Mason told this lie was because he feared that telling the truth would implicate him in relation to the commission of the offence concerned (and not for some other reason such as panic).

466. The lies alleged by the Crown are Mr Mason's claims to each of the two doctors who gave evidence that, when he became aware of the 5 January fire not far from where he had been camping, he had gone down and put it out.

467. When he spoke to Dr Barker (on 4 March 2014) about the 5 January fire, Mr Mason said to him:

I'm on the bridge and this jogger came from Woden way, and she goes, "What's that fire?" and I go, "That's not a bloody fire," and I went down there as fast as I could and I put it out, but then I thought, "Fuck it, it's out," and then I saw the fire brigade, and due to living on the street, I thought, "Fuck this, I've had enough of police," and I thought, "Fuck this, I'm out of here,"

(emphasis added)

468. In his first report, Dr Allnutt reported Mr Mason's comment (made on 16 September 2014) about the 5 January encounter with Ms Studdart:

... he said he didn't believe he lit the fire. He said that before the fire he had just woken up. He had got up and looked over the river and thought he should go fishing. He recalled going to the bridge and rolling a smoke. He also thought around that time that as he was looking out he saw someone else push a pushbike up the hill. He stated he heard a woman say, "There's a fire down there". He responded that that was not a fire, meaning that he was on his way down to put it out, which is what he did. When the fire trucks came he left because he didn't want any further interaction with police. He recalled saying, "Why ring the fire brigade?" He did not recall making comments to effect of, "You're a do-gooder".

(emphasis added)

469. The Crown case is that these claims were lies because the fire was burning when fire-fighters arrived and saw Mr Mason standing not far from the burning fire. The prosecutor pointed out that although Mr Mason had told both psychiatrists that he had put out the fire, his description of having "stomped" on it only emerged during the trial.

470. In both evidence in chief and cross-examination, however, Mr Mason's evidence was that he had "stomped" on the fire and that he believed he had put the fire out, but that it must have flared up again (at [258] and [273] above). He explained that he had said that what he saw wasn't a fire because he didn't consider it to be a dangerous fire.

471. I note first that, given that Mr Mason spoke to Dr Barker nearly two months after the 5 January fire, and to Dr Allnutt more than eight months after that fire, his claims seem unlikely to have been made as a result of any kind of panic. Since he maintained the position that his claim to have put out the fire was not a lie, Mr Mason did not offer any other explanation for making that claim.

472. The evidence that a fire was burning when fire-fighters arrived does not mean that Mr Mason's claim to have put out the fire before the fire brigade arrived was a lie.

473. The first two witnesses to the first fire placed their observations of the fire (or at least the smoke) at around 7.15 am (Ms Tanner) and around 7.00 am (Ms Studdart) respectively. Ms Studdart was the woman whom Mr Mason claimed to have told of his intention to put the fire out. Their calls to 000 were logged respectively at 7.39 am and 7.52 am. The first fire-fighters had arrived at the scene at around 7.45 am. It is apparent in relation to each witness that either she had significantly misjudged the time at which she had first noticed the smoke, or that she had not called 000 until some time after first noticing smoke. Ms Studdart, who said she had first seen smoke around 7.00 am but who did not call 000 until more than 50 minutes later, and some seven minutes after the first fire engine had arrived at the scene, might in fact have spoken to Mr Mason as much as half an hour before the fire engine arrived.

474. Thus, there may have been a significant period, possibly even as long as half an hour, between when, Mr Mason claimed, he had gone down to the river and put the fire out and when the fire-fighters found a fire still burning. The fact that a fire which appears to have been extinguished may flare up again later in the right conditions can in my view be accepted as common knowledge (perhaps especially in a case where an amateur rather than a professional fire-fighter has made the judgment that the fire has been extinguished: I note in this context Ms Trebilcock's evidence at [206] above of the fire-fighters having moved the layer of pine needles in the area of the fire "to ensure that they were not smouldering").

475. Ms Tanner's evidence (at [82]-[84] above), that around 7.15am she could not see the fire itself but only smoke going up in the air, is not inconsistent with the fire having been, apparently, "stomped" out before then.

476. I note also the fact that, although it seems that there was at least half an hour between when smoke from the fire was first noticed and when it was finally extinguished, the fire was described as a "small fire" when fire-fighters arrived. This is also not inconsistent with Mr Mason's claim that, at some point after it was first lit, he believed (albeit incorrectly) that he had extinguished the fire.

477. It was clear by the time the fire-fighters arrived that the fire the subject of the first bushfire charge had not been extinguished. Whether Mr Mason had in fact tried to extinguish it was not necessarily a significant issue in a determination of Mr Mason's guilt, and the Crown in its written submissions said only that his claim was significant:

because the accused is attempting to portray himself as an innocent party in this matter by suggesting that the fire was already lit and he was only there to put it out.

478. The formulation used by the majority in Edwards that the lie must have been "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" draws attention to the nature of the "truth" that would have implicated him in the offence concerned.

479. If Mr Mason's claim to have put the fire out was a lie, the relevant truth must have been that he had not put the fire out; however, it is clear that even if that were the truth of the matter, it would not of itself have directly implicated Mr Mason in the offence charged. The problem with the Crown's explanation is that it identifies Mr Mason's claim only as a general attempt to paint himself as a model citizen and all-round good fellow (effectively, as evidence of good character), in circumstances in which his character is largely if not entirely irrelevant. The alleged "truth" (that he did not attempt to put the fire out) could not, as such, implicate him in starting the fire; nor would a truthful claim of having attempted (successfully or not) to put it out have exonerated him from starting the fire.

480. Whether the truth was that he had made no attempt, or that he had made an ultimately unsuccessful attempt, Mr Mason's claim to have put the fire out cannot be seen as a deliberate attempt to obscure a truth that would have shown that he had started the fire.

481. If Mr Mason had admitted, or had been shown, to have started the fire, then a claim to have put it out at some point might have been relevant to the third way in which a person can "cause" a fire for the purposes of s 405 of the Criminal Code, namely that he fails to contain or extinguish a fire that he has lit if it is not beyond his capacity to contain or extinguish it. However, even this way of "causing" a fire requires that the accused person started the fire originally.

482. I am not convinced that Mr Mason lied when he told the two psychiatrists that he had put out the 5 January fire. Furthermore, I do not accept that if he did lie, he lied about a significant circumstance or event connected with the offence charged, or that he did so because the truth would have implicated him in the offence charged. Accordingly, I do not accept the evidence concerned as showing any consciousness of guilt.

483. By analogy with the approach to lies required by Edwards, in relying on flight to show a consciousness of guilt in relation to the 5 January fire, it would be necessary for the Crown in this case to show:

(a) that Mr Mason had fled the scene of the fire;

(b) that the reason he did so was to avoid arrest or detection; and

(c) that a consciousness of guilt (specifically, guilt of starting the fire) could reasonably be inferred from that flight.

484. In determining whether a consciousness of guilt could reasonably be inferred from flight, I must consider whether there was another reason for that flight.

485. The "flight" relied on by the Crown is Mr Mason's departure from the scene of the fire shortly after fire-fighters arrived there. They had parked the fire truck on the side of the road above the river, and at first could see a small plume of smoke. When they walked down the path they could see a small, active fire issuing smoke, and Mr Mason standing no more than 20 m away from the fire. By the time they had put out the fire, Mr Mason had disappeared, and he was later found hiding in long grass.

486. There is no doubt that Mr Mason attempted to avoid encountering the people who had come to deal with the fire; in particular, the evidence is that although Mr Mason was present near the fire when the fire-fighters arrived at the scene, he disappeared shortly after they arrived, hid in nearly long grass and, when found by a police officer, said that "he didn't think [the police] would find him" (at [143] above).

487. Mr Mason's disappearance from the scene of the fire can appropriately be described as "flight", and it is possible that he disappeared "to avoid arrest or detection". However:

(a) Mr Mason gave evidence explaining that he had hidden from police because he had had frequent contact with police, and he didn't want to go to "the mental health place" (at [259] above); and

(b) there is also evidence, dating back to the day of the December car fire (at [252] above), of Mr Mason's unwillingness to be confined, even within a hospital, and evidence that even before that, his experiences with police, although not always resulting in charges, often resulted in him being taken to hospital (at [357] above, especially [357(k)]) or otherwise having his freedoms restricted (at [606] below).

488. I am satisfied that Mr Mason's actions after the fire brigade arrived on 5 January amounted to flight for present purposes, and I am also satisfied that those actions reflected a wish to avoid an encounter with the authorities. However, I am not satisfied that this wish in turn reflected any guilt about having intentionally or recklessly lit the fire, as distinct from a more general wish not to be troubled by police or other people who might seek to confine him.

489. Accordingly, I do not accept the evidence of Mr Mason's flight from the scene of the 5 January fire as evidence of a consciousness of guilt about having started the fire.

490. The actions identified by the Crown might have resulted from a consciousness of guilt on Mr Mason's part in relation to having lit the 5 January fire. However, for reasons set out above, I do not consider that either Mr Mason's claims to the two doctors, or his actions in fleeing the scene of the 5 January fire, show any consciousness of guilt such that they can be treated as implied admissions of guilt available to me in determining whether Mr Mason started that fire.

491. Neither of the fire experts had been called to the first fire or asked to investigate it, and the only expert evidence about the cause of the first fire was given by Mr Woods, who examined a photograph of the scene of the 5 January fire and said that it was unlikely to have been caused by glass refraction (at [191] above).

492. The evidence given by the relevant expert witnesses about causes of fires in general also suggested that the 5 January fire was likely to have involved human intervention (see [438]-[446] above). However, the evidence did not go beyond that in any way relevant to identifying any particular human intervener, or the method used by such an intervener, although Ms Trebilcock noted that both the accidental and "incendiary" (or deliberate) causes required the "introduction of an ignition source".

493. As already noted, Mr Mason had the means and the opportunity to start this fire.

494. This fire broke out near where Mr Mason had been camping. Mr Mason was observed standing beside a burning tree, moving his arms in a motion interpreted by the witness (Ms Rollings) as fanning the fire but asserted by Mr Mason to have been an attempt to put the fire out. Ms Rollings called out to him, but Mr Mason did not respond, and disappeared from view. Ms Rollings did not see him again, despite running closer to the fire. She also saw a dog near the fire (she gave a description fitting that of the dog that Mr Mason was alleged to have stolen from the RSPCA).

495. When the first police officer arrived at the scene of the fire, he found Mr Mason lying in the river under a concrete causeway. Mr Mason had suffered severe burns to one arm, but had not made his presence known to the officer.

496. The Crown sought to rely on Mr Mason's attempt to hide from police at the time of the 5 January fire as showing a consciousness of guilt. There is also evidence suggesting that at the time of the 16 January fire, Mr Mason had deliberately avoided engaging with witnesses to the fire.

497. Ms Rollings gave evidence that she had called out to Mr Mason more than once when she saw him near the burning tree, but that she got no reply.

498. Mr Mason conceded that he had not drawn attention to himself when Constable Evans arrived at the scene of the fire, despite the fact that he was lying under the causeway, in considerable pain, with a serious burn for which he knew he would need medical attention. He did claim to have been moaning, and suggested that Constable Evans might not have heard him because his motorbike was still running.

499. I place little reliance on Mr Mason's failure to respond to Ms Rollings' calls, if only because of Ms Rollings' own evidence about the noise from the fire (at [150] and [151] above), which was consistent with Mr Mason's evidence (at [299] above). It is entirely possible that Mr Mason simply did not hear any of Ms Rollings' calls.

500. Mr Mason's failure to call for help from Constable Evans is not so easily discounted, although it is consistent with Mr Mason's general disinclination to get involved with police and other authority figures (at [487] above).

501. Neither of these matters was relied on by the Crown as showing a consciousness of guilt.

Provision of multiple different descriptions of events

502. It is apparent from the evidence summarised above that from the day of the fire, Mr Mason gave various different people different descriptions of the events and of his own involvement in them. However, apart from his claims to have put the 5 January fire out, the Crown does not seek to rely on the claims as showing a consciousness of guilt.

503. I have accordingly taken the various discrepancies in Mr Mason's evidence into account as part of the circumstantial case.

504. However, none of those discrepancies and variations, either alone or together with others, provides positive evidence for the proposition that Mr Mason must, intentionally or recklessly, have started either or both of the fires.

505. The most that can be said of them is that they cast doubt on any particular version of Mr Mason's account of his role in the fires, but of course casting doubt on Mr Mason's account does not as such readily establish any other account, which is what the Crown needs to do.

506. The discrepancies and variations are also consistent with the propositions (emerging especially from the evidence put in the defence case but supported also by the hospital records) that for an extended period starting from before the car fire in December 2013, and lasting at least until Mr Mason was released from hospital after the 16 January fire, Mr Mason was, at least, not functioning well in general and experiencing disorganised and perhaps disordered thinking in particular, and that his memories of events during that period may have been unreliable. The fact that he did not, over the ensuing months, maintain an entirely consistent account of the traumatic events of December 2013 and January 2014 is in my view unsurprising, and not necessarily indicative of anything sinister; many innocent witnesses face similar difficulties, even those who are apparently far more stable and organised than Mr Mason could have been at the relevant times.

507. Expert evidence about the cause of the 16 January fire was given by Richard Woods and Roanna Trebilcock.

508. I have commented about the significance and reliability of that expert evidence (at [438]-[446] above).

509. Richard Woods said that he had found no evidence of any of the specific recognised causes of wildfires, and that he had accordingly ruled them out as possible causes. On this basis, he opined that the only other category, being "deliberate", was the cause of the 16 January fire.

510. I accept Mr Woods' evidence that he had found no evidence of other causes of fire, but am not convinced that all the other listed categories could have been categorically ruled out; for instance:

(a) Mr Woods' explanation of the usual signs of a campfire did not go beyond a description of what would be expected of a sensible and experienced camper, which is significant given that the current case involves a camper who, while apparently experienced, was not necessarily in a state to be sensible; that is, the absence of those "usual" signs is not necessarily sufficient in the current case to positively exclude a campfire as an explanation for either of the fires;

(b) Mr Woods' evidence that no evidence had been found of "juvenile activity", and his sweeping dismissal of that possibility by reference to the time of the year (which was in fact in the middle of the long school holidays) and the time of the day (which would have been very early in the day for many people but for some juveniles would simply have been towards the end of a long night), were not pursued, but do not seem an adequate basis to "categorically exclude" such activity.

511. For these reasons as well as the reasons set out at [438]-[446] above, I accept this evidence as having the following significance:

(a) that the specific causes of fire for which no evidence was found have not been demonstrated, but have not in some cases been positively excluded;

(b) that in categorising the fire as "deliberate", Mr Woods meant only:

• (i) that he found no evidence of any other cause;
• (ii) that he considers that the fire involved human intervention of some sort; but
• (iii) that he has nothing to say about the identity, or the state of mind, of the hypothesised human intervener.

512. Ms Trebilcock's evidence was to the effect that she could not exclude the possibility that the fire had been started by a cigarette, and that the other possible causes for the fire were that it was started deliberately or accidentally by the "introduction of an ignition source to the scene".

513. Thus, the effect of the expert evidence about possible causes of the 16 January fire was that the fire had most likely involved human intervention, but that there was no basis in the information available to the expert witnesses to establish that the human intervention involved Mr Mason, or that it involved any person causing the fire intentionally or recklessly, rather than accidentally.

514. Neither of the relevant expert witnesses was asked about the nature or level of human intervention that would have been required to start a fire deliberately, or accidentally, in the circumstances considered by the witnesses. For instance, there was evidence about how unlikely it was, given the weather conditions and grass moisture levels, that a cigarette butt could have started the second fire, but no evidence of how much effort (or lighter fuel) would have been needed to start the fire using a cigarette lighter, or of how much neglect would have been required to allow a casual campfire (as distinct from a campfire constructed by a careful camper) to turn into a fire of the kind described by various witnesses including fire-fighters.

Preliminary conclusions - physical elements of bushfire offences

515. The evidence so far considered suggests at least a possibility that Mr Mason engaged in the conduct satisfying the physical element of each bushfire offence (that is, conduct causing the fire concerned), but it does not establish that proposition beyond reasonable doubt in relation to either fire.

516. However, the Crown seeks also to rely on coincidence reasoning to prove that conduct by Mr Mason to the necessary standard. Accordingly, I turn now to the coincidence application.

517. Evidence reliant for its significance on the unlikelihood of particular events happening by accident (coincidence) is dealt with in s 98 of the Evidence Act 2011 (ACT), as follows:

(1) Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless -

(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

Note One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.

(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or

(b) the evidence is presented to explain or contradict coincidence evidence presented by another party.

Note Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

518. Section 101(2) of the Evidence Act prevents coincidence evidence adduced by the prosecution being used against the defendant unless "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". Of course, the evidence must also be relevant as required by s 55 of the Evidence Act (a requirement which in any case would seem to be implicit in the probative value requirement).

519. Before considering the coincidence application in more detail, I note the very odd submission made in the Crown's closing submissions, although not included in its revised submissions specifically dealing with the coincidence application, as follows:

85. The evidence of the pattern of behaviour can only be used [for coincidence purposes] if you [make] the following findings:

a) That the accused committed each offence

b) Each offence is so similar to the other offences on the indictment that you find that it is highly improbable that the acts were committed by a different person.

520. This is curious because, if I find that "the accused committed each offence", there would be no need, and no point, in relying on coincidence reasoning, and the question whether "it is highly improbable that the acts were committed by a different person" would also be irrelevant. It is possible that the submission uses "committed each offence" to mean "engaged in the conduct constituting the physical element of each offence". However, such an apparently random use of technical terms casts even more doubt on the actual aims of the coincidence application as a whole.

521. There are in general terms two ways in which coincidence evidence can be used.

522. In one type of case, similarities between an offence proved to have been committed by an accused person and an offence with which that accused person is charged may be relied on to establish that the second offence was also committed by the accused person.

523. In other cases, similarities between two or more incidents may be used to bolster other evidence in a trial, for instance by suggesting that (in the absence of concoction) similar complaints made by two different witnesses are unlikely to have been invented and are therefore more believable. I suspect that this is the kind of use referred to in the Crown submissions as involving evidence of a "pattern of behaviour" (for instance, at [533] below).

524. The coincidence application in this case suggests some uncertainty about how the Crown sought to use the evidence concerned.

525. In R v Gale [2012] NSWCCA 174; 217 A Crim R 487 (Gale), a case relied on by the Crown (but apparently without a proper understanding of the requirements there described), Simpson J (with whom McClellan CJ and Fullerton J agreed) identified the correct process for determining a coincidence application as follows (at [31]):

In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:

• the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;
• the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";
• the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
• the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
• the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";
• in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)).
• the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.

526. I respectfully agree with Simpson J's analysis, although in the circumstances of the current case at least, I would add to her Honour's third step a requirement to identify, unless it is blindingly obvious, the reasoning process by which the similarities are said to be probative of the act or state of mind to be proved.

527. Gale involved the similarities between a robbery to which the two accused had admitted and a theft with which they had been charged.

528. The Crown submissions attempted to pursue the process recommended by Simpson J, but did not completely succeed.

529. In its first step, identifying the particular acts and states of mind that are sought to be proved by the coincidence evidence, the Crown simply sets out the elements of the two offences charged, and does not distinguish between the two charges. Those acts and states of mind were particularised in the coincidence notice as follows:

1. The accused engages in conduct that causes a fire.

1. The accused intends to engage in such conduct, reckless as to whether his conduct causes a fire.
2. The accused is reckless about the spread of the fire to vegetation on property belong to someone else.

530. In the Crown's written submissions, the specified items are further broken down, but only as a matter of grammar (eg the act specified is broken down into separate paragraphs referring to the accused engaging in conduct and to the conduct causing a fire; the first state of mind is expanded in the same way). There is still no reference to the particular facts sought to be proved. Significantly, there is no explicit discussion of whether the evidence relating to one of the fires is said to prove the relevant acts and states of mind for the other fire, or whether the evidence relating to both fires is said to enhance the other evidence relevant to whether Mr Mason engaged in the relevant acts or had the relevant states of mind for either fire.

531. There is some inconsistency between the Crown's submissions on the coincidence application and its closing submissions.

532. The Crown's revised submissions about the coincidence application (dated 23 November 2015) seek orders in respect of each count in the indictment that evidence in relation to that count be admitted as coincidence evidence in relation to the other count, and summarise the application as seeking "a ruling that the evidence in relation to [the two counts on the indictment] is admitted as coincidence evidence".

533. However, the Crown's closing submissions (apparently filed on 25 November 2015) suggest:

(a) that if the Court is satisfied that Mr Mason committed one of the bushfire offences, then the coincidence evidence can be used to permit the conclusion that he also committed the other offence; but

(b) that the "evidence of the pattern of behaviour" can only be used if the Court finds that "the accused committed each offence"; as already noted at [520] above, if the Court has made such findings already then the coincidence evidence would not have any additional function.

534. In Gale, the similarities between an offence that had been admitted by the two accused and the offence with which they were subsequently charged were easy to identify, and their probative value in relation to the second offence was easy to articulate because the two accused had admitted to the first-mentioned offence. The Crown's apparent difficulties in articulating exactly what the coincidence evidence can be relied on to prove in this case must cast some doubt on the value of that evidence.

535. Simpson J's second step is the identification of the two "events" referred to in s 98. Her Honour identified the events in Gale as the robbery and the theft, taking care to exclude from the identification of the events the claim that the accused had committed the theft which they denied.

536. The Crown submissions in this case simply refer to the case statement for each alleged offence, and to the coincidence notice which in turn relies on those case statements. The problem for the Crown is that the case statements go beyond describing the events whose similarities are the subject of evidence (the two fires to which the bushfire charges relate) and include the propositions that Mr Mason was the person who caused those fires (being, significantly, the propositions which are sought to be proved by, among other things, coincidence reasoning from the similarities).

537. In order to make sense of the coincidence notice in this case, I shall assume at this point that the events it refers to are the two fires (on 5 and 16 January) and that the evidence under consideration is the direct evidence about each of the fires and the circumstances of each fire (including such things as Mr Mason's presence in the area on each occasion), but not including the assertion that Mr Mason caused either or both of them.

538. The next step is to identify the similarities between the events that are relied on for coincidence reasoning. In analysing the similarities in Gale, Simpson J pointed out that some of the assertions "expose a serious logical fallacy in the argument" (at [37]), in that they listed as similarities many of the matters that the coincidence evidence was intended to establish. For instance, the Crown identified as a similarity the presence of Mr Gale at both the robbery and the theft, although there was only evidence that Mr Gale was present at the robbery, and the coincidence evidence, among other things, was being relied on to prove that he was also present at the theft - as Simpson J pointed out, this was "a classic instance of 'begging the question' (properly so called)" (at [37]).

539. Whether the list of similarities relied on in this case includes such an obviously flawed proposition is not clear, because as indicated at [530] above, it is not clear whether the Crown's aim is to use the coincidence evidence in proving Mr Mason's responsibility for the 16 January fire only or to rely on the evidence relating to each fire as probative in relation to the other fire. However, it is worth emphasising Simpson J's comments that "similarities for the purposes of s 98 must be capable of proof by means other than the 'facts' sought to be established" (at [37]) and that assertions "cannot also be proffered as similarities used to prove they are facts" (at [38]).

540. The identified similarities in this case can be described as follows:

(a) the fires occurred in the same area and in close proximity to each other, only 11 days apart, and in each case early in the morning;

(b) the fires occurred on property belonging to someone else;

(c) Mr Mason was living in the area concerned at the time of each fire;

(d) at the time of each fire, Mr Mason was observed in close proximity to the fire while the fire was still burning;

(e) Mr Mason had possession of a distinctive hat and coat at the time of each fire;

(f) Mr Mason had possession of a cigarette lighter on both occasions (and had given evidence that he knew how to use it);

(g) in general terms, that the expert evidence was that the first fire must have been caused by Mr Mason and that the second fire was deliberately lit.

541. Most of these similarities are undisputed, except for the last one, which is dealt with at [548]-[552] below. It is, however, apparent that some of the undisputed similarities are irrelevant to the probability or otherwise of the two events occurring coincidentally, and therefore, as similarities, have no impact in linking either or both fires with Mr Mason.

542. The fact that in each case the fire occurred on "property belonging to someone else" has, as far as I can see, no relevance at all to whether the two fires were caused by Mr Mason or even to whether they were caused by the same person.

543. The concept of "property belonging to someone else" is significant in this case only because the specific intent needing to be proved relates to the possible spread of fire to vegetation on property belonging to someone else. Whether the fire broke out on property belonging to someone other than Mr Mason is legally irrelevant (although it may in general be relevant to the ease with which it can be shown that the person responsible for a fire was reckless about its spread to vegetation on property not belonging to that person).

544. Furthermore, in this case, each fire occurred on a parcel of land (but not the same parcel of land) that was "unleased property" that "belonged" to the Australian Capital Territory and that was managed by a Land Custodian. This seems to mean that any fire lit by an individual (other than as an agent of the ACT or the relevant Land Custodian) in either of the two areas (or in any other unleased land in the ACT) would be on "property belonging to someone else". The fact that in this case the two properties concerned, and the scenes of the two fires, were close together is reflected in the separately-identified similarity that the sites of the two fires were in close proximity. Neither the fact that both properties had the same owner, nor the fact that neither of the properties belonged to Mr Mason, distinguish the two fires from any other fires on unleased land in the ACT. The fact that neither of the two fires was on land belonging to Mr Mason probably does not distinguish the fires from any other fire anywhere in the ACT.

545. Nor can I see the relevance of Mr Mason's distinctive hat and coat, given that in this case Mr Mason and his presence in the relevant area came to attention, and was identified, at the time of each fire, and that identification did not rely on his possession of the hat and coat. There was evidence from several witnesses about the presence, and activities, of a man identified by reference to his coat and hat, but there was no challenge in the defence case to the proposition that the man observed wearing, or in possession of, the distinctive coat and hat was Mr Mason.

546. It may in some circumstances be improbable, absent coincidence, that the same person is present at two separate fires without being connected with them (this of course is, in general terms, what the Crown seeks to prove), but it is not improbable in any ordinary circumstances that a person present at two fires a short time apart is in possession of the same hat and coat on each occasion.

547. Mr Mason's possession, at the time of each fire, of a cigarette lighter and the knowledge of how to use it does provide evidence that Mr Mason had the means to start fires. However, the fact that Mr Mason was a smoker seems to deprive that possession of any particularly sinister aspect, especially since it probably does not distinguish him from most if not all other smokers in the ACT and surrounding areas. Nor, especially in the absence of any suggestion that at some time before 16 January Mr Mason had given up smoking, is it significant that he was in possession of a cigarette lighter on the occasions of both relevant fires.

548. Finally, there are several problems with the last identified similarity, summarised at [540(g)] above but specified in the Crown submissions as follows:

• The evidence establishes that the only available inference is that the cause of the fire on 5 January 2014 was as a result of the accused's conduct.
• The fire on 16 January 2014 was deliberately lit according to Superintendent Richard Woods.

549. This is not a similarity that makes coincidence unlikely, but an attempt to establish a false similarity: the first fire may well have been caused by Mr Mason's conduct, but this does not mean that it was "deliberately lit"; the second fire may have been "deliberately lit" (although what this actually means is not clear: see [511] above), but this does not establish that it was deliberately lit by anyone in particular, or that it was deliberately lit by the same person who had in some way (not necessarily deliberately) caused an earlier fire.

550. I note in passing that this false similarity also depends on putting a particular, but apparently unjustified, spin on the evidence of Mr Woods (at [510] above).

551. Furthermore, the claim that "the evidence establishes that the only available inference is that the cause of the fire on 5 January 2014 was a result of Mr Mason's conduct", as such, is not correct. The evidence permits an inference that the fire resulted from Mr Mason's conduct, but without narrowing down the possible states of mind in which Mr Mason might have engaged in that conduct, and it does not exclude the inference that the fire was caused, deliberately or inadvertently, by someone other than Mr Mason.

552. However, the similarity between the fires that can be said to have emerged from the expert evidence is that each fire is likely to have involved human intervention, and I shall accordingly treat the Crown's application as applying to that similarity.

553. The result of this analysis is that the two events, to the extent that they are constituted by the fires (rather than by fires lit by Mr Mason), have the following genuine and possibly relevant similarities:

(a) the fires occurred in the same area and in close proximity to each other, only 11 days apart, and in each case early in the morning;

(b) Mr Mason was living in the area concerned at the time of each fire;

(c) at the time of each fire, Mr Mason was observed in close proximity to the fire while the fire was still burning;

(d) the expert evidence is that each fire is likely to have involved human intervention.

554. The Crown's description of the first two similarities mentioned above perhaps underestimates their significance, since the evidence seems to be not only that the two fires were in the same general area, roughly 500m apart (Exhibit A) and that Mr Mason was living in that same general area, but that in each case Mr Mason had been camping quite close to the scene of the particular fire. On the other hand, Mr Mason's proximity to each fire while it was still burning might have had more significance if each fire had occurred somewhere distant from Mr Mason's home rather than, in effect, in his own unsecured "backyard".

555. As well, there was little or no evidence about how unusual, or distinctive, any of the "similarities" really were.

556. For instance, there was no evidence of how often fires started in the relevant area of these two fires, or of how many other homeless people camped in the area from time to time.

557. On the other hand, there was clear evidence that the area was regularly populated, including very early in the mornings, by cyclists, walkers, and people attending to horses kept in the nearby horse paddocks. At least one of the four civilian witnesses to the fires had been in the area at the time of each fire: I do not intend to suggest any involvement in either of the fires by that or any other witness, only to make the point that Mr Mason was clearly not the only person in the area of both fires around the relevant times.

558. The next question then seems to be whether, having regard to those similarities in the fires or the circumstances in which they happened, or any similarities in both the fires and the circumstances in which they happened, it is improbable that the fires happened coincidentally.

559. Because of the process required as set out at [77]-[80] above, I shall at this point confine my consideration to Mr Mason's involvement in starting the fire, and shall not address whether he acted with the necessary specific intent.

560. As already noted, the Crown has given only the most general indication of what it says can be proved by the coincidence evidence, and has given no indication of the reasoning process that would give rise to the necessary conclusions.

561. However, taking a lead from Simpson J's approach in Gale at [44], the question in this case might be formulated as follows:

Are the similarities in the circumstances of the two fires identified at [553] above, taken with other evidence, capable of establishing the improbability that the two fires occurred coincidentally (that is, for present purposes, without Mr Mason having intentionally or recklessly caused each of them).

562. I note first that for present purposes I have identified the improbability as relating simply to Mr Mason causing the two fires rather than specifically to his criminal involvement in them: this is because, even if Mr Mason's intentional or reckless causing of the fires can be established, there remains the possibility that he is not criminally liable for the fires, either because his mental impairment claim is made out or because he cannot be shown to have had the necessary specific intent.

563. The similarities in the circumstances of the two fires, identified at [553] above, considered alone, do raise the question whether it is improbable that the two fires happened coincidentally. Taken with other evidence, in particular the evidence of Mr Mason's unwillingness to engage with other people, especially authority figures such as police and fire-fighters, about each of the fires, I am satisfied that the similarities between the two fires (specifically, the timing of the two fires and Mr Mason's physical proximity to the site of each fire, and to each fire while it was burning) make it sufficiently improbable that the two fires happened coincidentally to give that evidence some probative value.

564. I note at this point that defence counsel mentioned, in passing, that the Crown had not included the car fire in the events covered in the coincidence application. This was presumably intended to draw attention to the fact that the car fire, which Mr Mason did admit to causing, did not share all the similarities identified by the Crown, and perhaps would have detracted from any conclusion that Mr Mason's connections with the other two fires must have involved criminal activity.

Assessment of probative value and prejudicial effect

565. I note first that there is no disagreement in this case about the credibility or reliability of the evidence of the first three of the accepted similarities; as already noted at [511] above, I have not accepted in full the Crown's interpretation of the expert evidence about the causes of the two fires.

566. However, the probative value of the coincidence evidence I have accepted as relevant, even taken with other available evidence, does not go much beyond the possibility that Mr Mason's presence was connected with each fire (while noting that those accepted similarities would have had considerably more probative value if I had accepted the Crown's characterisation of some of the other evidence as showing a consciousness of guilt in relation to the 5 January fire).

567. The difficulty for the Crown is that Mr Mason's likely connection to the two fires, as established by the coincidence evidence, could be that he intentionally or recklessly caused both of them, but it could be quite a different kind of connection.

568. Perhaps the most likely alternative connection between Mr Mason and the two fires is that Mr Mason could have accidentally or inadvertently caused either or both of them (a possibility clearly raised by his explanation for the start of the 20 December 2013 fire that destroyed his car, at [251] above), for instance by falling asleep the night before leaving an unstructured campfire insufficiently extinguished.

569. An alternative possibility is raised by Mr Mason's evidence about his memory of first becoming aware of the 16 January fire, including the claim about being woken by a woman's voice that was first made to Constable Evans at the scene of the fire (at [161] above). That possibility is that either or both of the fires were deliberately set by other people (juveniles or not), perhaps people who objected to having a homeless man living in the area and sought to induce him to find another place to camp, or perhaps people who simply liked the idea of giving a homeless man a fright.

570. A further possibility is that there are different explanations for Mr Mason's connection with the two fires, with one fire being a result of Mr Mason's actions and the other being deliberately started by another person who was in some way targeting Mr Mason.

571. Neither of those possibilities (Mr Mason's unintentional or inadvertent causing of either or both of the fires, and Mr Mason's role as the target rather than the actor in the start of either or both of the fires) is excluded by the accepted similarities between the two fires and the accepted improbability that the similarities are coincidental. The probative value of the coincidence evidence is clearly, in the abstract, not particularly high.

572. On the other hand, it is not clear that the prejudicial effect of the coincidence evidence is significant either. There is nothing that I can see in the circumstances of the current case that would be prejudicial to Mr Mason apart from the rational capacity of the coincidence evidence to be used in establishing his guilt, especially in the circumstances of a judge-alone trial (in which, commonly, a judge is trusted to determine what evidence is admissible and what must be excluded, and then to go on to reach a verdict based only on the admissible evidence, despite her continuing knowledge of, and any emotional reaction to, any evidence that has been excluded).

573. As to the other evidence that might be relevant in determining whether the "coincidence" evidence had significant probative value, I note first that the Crown in its coincidence application and submissions did not specifically identify the other evidence to which the court should have regard in considering the probative value of the coincidence evidence.

574. However, in short, the other Crown evidence is also weak. Since I have rejected the Crown submissions that Mr Mason's conduct in relation to the 5 January fire showed a consciousness of guilt, the only other substantial evidence tending to suggest Mr Mason's guilt is:

(a) the general evidence that Mr Mason's reports about the two fires were not entirely or necessarily reliable;

(b) the evidence that Mr Mason might have been intoxicated around the time of each fire; and

(c) the evidence that Mr Mason was to some extent unwilling to deal with authority figures in the context of the fires.

575. Indeed, one could be forgiven for thinking that the strongest remaining aspects of the Crown case are the unstated possibilities that Mr Mason started the fires entirely irrationally while heavily intoxicated, or that his mental state was just disordered enough to induce him to start the fires (but not disordered enough to engage a mental impairment defence).

576. I have concluded that I should admit the evidence of the four identified similarities between the two fires as coincidence evidence in relation to each bushfire charge, for the following reasons:

(a) The defence made no substantial submissions in response to the Crown's application and associated submissions, except as noted at [564] above. As well, despite the prosecutor's suggestion, defence counsel declined the invitation to engage in an oral hearing of the coincidence application before the trial was concluded.

(b) Instead, defence counsel conceded that the defence had not challenged the hearing of the two bushfire charges in the same trial. In doing so, I consider he implicitly accepted that evidence of the two fires would be before the fact-finder in the same proceedings and that, in the judge-alone trial for which Mr Mason had elected, the defence would simply be relying on the judge to take an appropriately cautious and sophisticated approach to identifying the relevant similarities and the proper use of the evidence and to avoiding any unfairly prejudicial use of the evidence.

(c) Finally, although as already noted the coincidence evidence does not seem to have high probative value, it is in my view of relatively significant probative value because of the weakness of the rest of the Crown case (and to that extent at least, substantially outweighs the minor or even non-existent prejudice to Mr Mason that I have been able to identify).

577. As indicated above at [533(a)], it is possible that the Crown really intended, on the assumption that Mr Mason would be shown by other evidence to be guilty of causing the 5 January fire, that the similarities between that fire and the 16 January fire could then be used to prove that Mr Mason had caused that later fire. Given my preliminary conclusion set out at [515] above, that apart from the coincidence evidence, Mr Mason has not been shown beyond reasonable doubt to have caused the 5 January fire, there is no scope for using the coincidence evidence to show, by reference to his demonstrated responsibility for the 5 January fire, that Mr Mason also caused the 16 January fire.

578. The Crown's circumstantial case as to the first element of each offence, that Mr Mason intentionally or recklessly caused the two fires (which I shall refer to, for convenience, as whether he deliberately - rather than accidentally or inadvertently - caused the fires) can be summarised as follows.

(a) the following matters are directly established by the evidence:

• (i) Mr Mason was at the scene of the fire. He tried to persuade a passer-by not to report the fire to police. When fire-fighters arrived, he left the area and tried to hide. He told a police officer that he might have caused the fire by throwing a cigarette away. No cigarette butt was found at the scene of the fire.
• (ii) Mr Mason had a cigarette lighter in his possession, and knew how to use it.
• (iii) Later Mr Mason told his Legal Aid solicitor that he "accepted that [he] might have lit [the fires]"; and

(b) the only inference available from the expert evidence is that the fire was deliberately lit, that it was not an accident, and that it was lit by Mr Mason.

(a) the following matters are directly established by the evidence:

• (i) Mr Mason was at the scene of the fire. A passer-by saw him doing something that she interpreted as fanning the fire. He ignored the attempts of the passer-by to speak to him about the fire. He concealed himself in the water under the causeway and, despite recognising that he needed medical attention, did not call attention to his presence when a police officer arrived.
• (ii) Mr Mason had a cigarette lighter in his possession, and knew how to use it.
• (iii) Later Mr Mason told his Legal Aid solicitor that he "accepted that [he] might have lit [the fires]".

(b) If Mr Mason was fanning the fire, the only available inference is that he lit it.

(c) That Mr Mason's location under the causeway when Constable Evans found him was not consistent with Mr Mason's claim to have run towards the river, tripped, and fallen into the river.

(d) The expert evidence is (from Mr Woods) that the second fire was deliberately lit (at [188] above) and (from Ms Trebilcock) that it must have started with the introduction of an ignition source to the scene.

(e) That:

[t]he version provided by [Mr Mason] to Dr Barker (and subsequently repeated to a number of health professionals) is not a version that is consistent with innocence. This is an attempt on the part of [Mr Mason] to provide an explanation for the evidence that is against him and ought to be disregarded by the Court.

581. I have commented on my assessment of the expert evidence about the cause of the fires (at [438] to [446] above).

582. As to the claim that Mr Mason's location when Constable Evans saw him is inconsistent with his claim to have fallen into the river, the evidence given about this matter by Constable Evans and Mr Mason is set out respectively at [160] and [291] above. It is not clear to me, and it is not explained in the Crown submissions, how these accounts are inconsistent - if at all - in any significant way.

583. As to the submission set out at [580(e)] above, I note that apart from suggesting confusion about where the burden of proof lies at this point, this submission seems to go no further than that Mr Mason's evidence should be disregarded because it is inconsistent with the Crown case theory. It is also hard to see why the Crown would want the Court to disregard a version of events from Mr Mason that the Crown says is not consistent with innocence. However, if the real claim is that the version is not consistent with the other evidence, it is worth noting that, as far as I can see, the only piece of evidence given by Mr Mason about this fire that is explicitly inconsistent with other evidence is his claim that when Ms Rollings saw him, he was attempting to put out the fire. To base the circumstantial case substantially on the difference between:

(a) Mr Mason's claim about his actions, made in his first exchange with the first responder Constable Evans (at [161] above), and maintained at each relevant point thereafter; and

(b) Ms Rollings' interpretation of the same actions, given her evidence at [149] and [154] above that it was dark, that the main source of light was the fire, that Mr Mason was silhouetted against the flames, and that she observed Mr Mason's actions for a few seconds;

can only be an indication of the flimsiness of the case as a whole.

584. As well as the evidence outlined, and commented on, above, the Crown relied also on such coincidence evidence as I admitted at [576] above.

585. Because I have not been satisfied, beyond reasonable doubt, that Mr Mason deliberately caused the 5 January fire, the accepted similarities between the two fires could not be relied on to prove that Mr Mason also deliberately caused the 16 January fire. Nor do the similarities justify the Crown's submission that:

[The coincidence] evidence is relevant in establishing that there is no innocent explanation for [Mr Mason's] presence at the fires. The coincidence evidence negates the possibility that [Mr Mason] had a reason for being at the scene of both fires other than to cause them.

586. In my view, the evidence did not permit coincidence reasoning to any conclusion beyond the proposition that Mr Mason was somehow connected with both the fires specified in the bushfire charges.

587. In considering the strength of the circumstantial case it is also necessary to consider other evidence that is not relied on by the Crown.

588. I note first the evidence, including but not only from Mr Mason himself, that he had a very limited memory of the period of the fires, and indeed of other aspects of his history. Dr Allnutt's report records various matters in relation to which Mr Mason apparently struggled to provide useful information; for instance, Dr Allnutt recorded that in discussion about the period after Mr Mason's admission to hospital in November 2013, Mr Mason:

was prescribed Epilim and believed he took it for a period but was unclear about this. Initially he thought it was two or three weeks but then said he was unsure whether he took it at all. He was unsure whether he had any follow-up with mental health services after that.

589. Dr Allnutt's conclusions included the comment that:

[Mr Mason's] recollection of his mental state in the time leading up to and during the alleged offences is relatively patchy. He said at the time he thought there was nothing wrong with him but in interview with me it appeared to him, in retrospect, that he was probably experiencing a mental illness.

590. It is of course possible that Mr Mason was malingering in suggesting memory difficulties about the circumstances of the fires, but this would not necessarily have been the most useful way of obtaining a report which, he apparently hoped, would establish a mental impairment defence for him if, despite his denials, he was found to have caused the fires. Furthermore, Mr Mason seemed to have an adequate grasp of the symptoms of mania when he spoke to Dr Allnutt: he did not need to feign memory loss in order to obtain a diagnosis of mania despite an inability to describe relevant symptoms.

(a) At the time of each of the two fires, Mr Mason was effectively homeless, and was camping in the area where the fires broke out. Although the two fires began at locations some 500 m apart (Ex A), it seems that at the time of each fire, Mr Mason had been sleeping near the scene of that fire.

(b) Mr Mason gave evidence that in the period between when he left his ex-wife's garage around 20 December and the 16 January fire, he had slept in various different locations along a stretch of the river bank possibly as long as 2 km (Ex A); he provided some explanation for his moves relating to weather conditions.

(c) Mr Mason's behaviour during that period was unstable and erratic (for present purposes I do not need to address the question whether he was suffering a manic episode of a bipolar disorder, another kind of psychotic episode, or the effects of repeated or prolonged intoxication).

(d) In late December, the car in which he had been living, and most of his possessions, were destroyed in a fire close to the site of the 5 January fire. In his evidence he provided an explanation for the car fire involving conduct by him which, as it turned out, was ill-advised and perhaps quite stupid, but not apparently aimed at starting a fire.

(e) Both the fire brigade and ambulance service attended the car fire, and Mr Mason was taken to hospital. He clearly did not want to stay (his evidence was: "When I realised they were taking me to the psychiatric ward I took a quick left and it took five of them to hold me off the ground": at [252] above).

(f) On several occasions between the car fire and the 5 January fire, Mr Mason was again taken to hospital by police (at [357(k)] above).

(g) From the beginning, Mr Mason repeatedly denied involvement in starting the fires. I do not regard these denials as compromised by his concession that he "might have lit the fires", since this concession apparently emerged at the point when his legal advisers were considering seeking a psychiatric report on which to base a "fall-back" mental impairment defence. If Mr Mason was being advised that despite his denials he was at risk of being found guilty of the bushfire charges, a concession sufficient to permit the development of an alternative defence (without conceding any deliberate action on his part) is not surprising.

592. Finally, the Crown has not suggested that Mr Mason had any kind of motive for starting either of the fires. Of course, the Crown is not required to establish a motive, but the existence of an obvious, or even possible, motive would be helpful when, as here, the other evidence about how the fires started, or about Mr Mason's involvement in the start of the fires, is far from conclusive.

593. I note in passing that there are brief references in the medical and psychiatric material to other occasions on which Mr Mason has sustained minor burns as a result of careless or foolish behaviour - however, in the absence of any attempt by the Crown to rely on those events as some kind of tendency evidence, I place no weight on them either way.

Conclusion - physical elements of bushfire offences

594. The evidence relied on by the Crown certainly raises the possibility that Mr Mason was connected with the start of the two January fires. However, the other evidence referred to puts a somewhat different complexion on that first-mentioned evidence. In particular, Mr Mason's presence in the bushland can more readily be attributed to his homelessness than to any particular inclination to start bushfires; Mr Mason's possession of a cigarette lighter and the knowledge of how to use it do not, since Mr Mason was a smoker, seem remotely sinister; Mr Mason's wish to avoid the involvement of the authorities (the AFP, fire-fighters and ambulance officers) could be attributed not to a guilty conscience but to his expectation (based on very recent past experience) that contact with such people was likely to result in his delivery to hospital and possible confinement there against his wishes.

595. In short, the evidence before me is consistent with Mr Mason having been involved in the causing of the two January fires, and it may even be that the evidence is more likely to reflect Mr Mason's deliberate involvement in the start of the fires than anything else. However, having regard to:

(a) the absence of any evidence or explanation that went beyond ruling out some (but not all) possible ways in which the fires might have started without Mr Mason's deliberate involvement;

(b) the absence of any suggestion of a motive on Mr Mason's part for deliberately starting either of the fires;

(c) the evidence of Mr Mason's apparently accidental starting of the car fire;

(d) the evidence explaining Mr Mason's aversion to engagement with police and other authorities otherwise than by reference to a guilty conscience; and

(e) the evidence that, for whatever reason, Mr Mason was not functioning particularly well during much of the period he spent camping near the Molonglo River around the time of the fires;

the evidence taken as a whole is simply not sufficient to satisfy me, beyond reasonable doubt, that Mr Mason caused either of the January fires, or that if he did cause either of them he did so intentionally or recklessly rather than accidentally or inadvertently.

596. That is, the physical element of the bushfire offence is not made out in relation to either fire, and therefore there must be verdicts of not guilty on each of the two bushfire charges. The question whether, if Mr Mason did start a fire, he had the specific intent relating to the spread of the fire that would be required to make out a bushfire charge is therefore irrelevant.

597. It is also not necessary to consider the mental impairment defence in relation to the bushfire charges, although this remains potentially relevant in relation to the transferred charges.

598. None of the other charges that I need to determine is an offence of specific intent, so the order of consideration required by Hawkins (at [80] above) is no longer relevant; for the remaining charges the only question, if the elements of the offence are established, is whether a mental impairment defence has been made out. Accordingly, being satisfied as required by s 68D(2) of the Supreme Court Act that it would be in the interests of justice to do so, I turn now to considering the elements of the transferred charges.

Lighting a fire without authorisation (two charges)

599. The offence of lighting a fire without authorisation is created by s 125 of the Emergencies Act 2004 (ACT):

(i) intentionally lights, maintains or uses a fire in the open air, or burns flammable material, on any land; or

(ii) engages in conduct reckless about whether the conduct would cause a fire to be lit or maintained in the open air, or flammable material to be burnt, on any land; and

(b) the lighting or burning is not permitted under this Act or done for fire prevention by anyone acting under this Act.

(a) if the offence is committed in the bushfire season - 100 penalty units, imprisonment for 1 year or both; and

(b) in any other case - 50 penalty units, imprisonment for 6 months or both.

flammable material includes wood, straw, stubble, grass and herbage.

600. The two charges are "back-up" charges relating to the two January fires. If I had found:

(f) that Mr Mason had intentionally or recklessly caused a fire in the open air, being a fire mentioned in the indictment; and

(g) that Mr Mason did not have a mental impairment defence;

but had not been able to find that he had the specific intent necessary to make out the offence charged in the indictment, I could have found him guilty of the backup "lighting unauthorised fire" offence relating to that fire.

601. However, because I have not even been able to find that Mr Mason caused either of the fires, intentionally or recklessly or at all, I must also find him not guilty of the two back-up offences.

602. The offence of possession of a knife in a public place is created under s 382 of the Crimes Act, as follows:

1. Possession of knife in public place or school

(1) A person shall not, without reasonable excuse, have a knife in his or her possession in a public place or school.

Maximum penalty: 10 penalty units, imprisonment for 6 months or both.

(2) Without limiting what may constitute a reasonable excuse, it is a reasonable excuse for a person to have a knife in his or her possession in a public place or school if -

(a) the possession is necessary or reasonable for, or for a purpose incidental to -

(i) the lawful pursuit of the person's occupation; or

(ii) the preparation or consumption of food; or

(iii) participation in a lawful entertainment, recreation or sport; or

(iv) the exhibition of knives for retail or other trade purposes; or

(v) an organised exhibition by knife collectors; or

(vi) the wearing of an official uniform; or

(vii) religious purposes; or

(3) It is not a reasonable excuse for a person to have a knife in his or her possession in a public place or school solely for the purpose of self-defence or the defence of another person.

603. The charge relates to the knife that Mr Mason had in his possession at the time of the 5 January fire. He lied to Constable Janssen about this, and subsequently made different statements about the knife to various people, for instance telling Dr Barker that he had his "big hunting knife" because he was on his way to Lake Eucumbene.

604. Section 382 provides a list of reasonable excuses for possession of a knife including "the preparation or consumption of food". Mr Mason did not claim to use his knife for food preparation until during the trial, when he was recalled and specifically asked about it by defence counsel.

605. Mr Mason gave evidence (at [306]-[308] above) that he had originally acquired the knife "as a camping knife, to cut up meat, and if he had caught a fish he would have used it to gut the fish", but that he had not volunteered this explanation earlier; he suggested, in effect, that this had obviously been why he had the knife.

606. Mr Mason's evidence that police had taken "a couple of knives" from him earlier was his explanation for choosing to lie when Constable Janssen had asked him whether he had a knife with him; that evidence is supported by the hospital records at Exhibit 3, which suggest that there had been concerns about Mr Mason's interest in knives, and the possibility of self-harm, during 2013.

607. He agreed that he had not claimed to have used the knife to cut up meat, but that cutting up meat, and fish if he'd caught any, was the purpose of possessing it. He said it was the only utensil he had at the time, and that he had meat at the camp and he had intended to use the knife to eat it. He agreed that he had not, at any earlier point in the trial, raised this as the purpose of possessing the knife, but said he hadn't needed to think about this explanation "because that is what I had it for".

608. The Crown relies heavily on what are said to be missed opportunities for Mr Mason to explain his possession of the knife by reference to food preparation.

609. However, the opportunities cited are not cases in which Mr Mason was asked to provide a reasonable excuse for having the knife, but cases in which he was asked different questions (in particular, whether he had a knife, and whether the knife on the ground belonged to him) which did not seem to require information about the purpose for which he had the knife. Telling Dr Barker that he planned to take his knife to Lake Eucumbene is not inconsistent with his subsequent claim, when he was asked explicitly by his counsel, that he used it for food preparation; Mr Mason might reasonably have felt that taking a large knife on a camping trip needed no more specific explanation.

610. In short, the fact that Mr Mason did not answer a question that was not asked, even though it was relevant to the offence charged, until he was asked the question specifically during the trial, does not seem to me a sound basis for concluding that the answer ultimately given was untrue.

611. I understand that there are circumstances in which police might consider it desirable or even necessary to take a knife away from a person who presents as either manic or severely intoxicated, and I make no criticism of such police action. However, I am not convinced that a homeless person, camping in bushland, who identifies his knife as his only utensil, and claims to possess it for preparing and eating food, does not have a reasonable excuse for the purposes of s 382.

612. Accordingly, I find Mr Mason not guilty of possessing a knife without reasonable excuse.

613. The trespass and theft charges, which relate to the removal of the dog from RSPCA premises shortly before the 16 January fire, arise respectively under the Public Order (Protection of Persons and Property) Act 1971 (Cth) and the ACT Criminal Code, which relevantly contain the following provisions:

Public Order (Protection of Persons and Property) Act

1. Additional offences on premises in a Territory

(1) A person who trespasses on premises in a Territory commits an offence, punishable on conviction by a fine of not more than 10 penalty units.

(2A) For the purposes of an offence against subsection (1) or (2), absolute liability applies to the physical element of circumstance of the offence, that the premises are in a Territory.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(2B) Subsection (1) and paragraph (2)(c) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).

(3) Notwithstanding section 23, the consent of the Director of Public Prosecutions, or of a person, or of a person included in a class of persons, authorized by the Director of Public Prosecutions for the purposes of subsection (2) of that section, is not required for the institution of proceedings for the prosecution of an offence against this section.

(3A) This section is not intended to exclude or limit the concurrent operation of any law of the Australian Capital Territory.

(4) In this section, premises does not include Commonwealth premises.

(1) Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).

(1) Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.

(1) A person commits an offence (also theft) if -

(a) the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and

(b) the property has a replacement value of $2 000 or less when it is appropriated.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability applies to subsection (1) (b).

(a) for this Act generally - includes the following:

(i) electricity;

(ii) gas;

(iii) water;

(iv) a wild creature that is tamed or ordinarily kept in captivity or that is, or is being taken into, someone's possession;

(v) any organ or part of a human body and any blood, ova, semen or other substance extracted from a human body; and

(b) for part 4.1 (Property damage offences) - see section 400.

Note For further definition of property, see the Legislation Act, dict, pt 1.

614. I note first Mr Mason's evidence that he honestly did not know whether he had gone into the RSPCA, broken into the dog's cage, and taken the dog, but that he could have done that, and that he seemed "to have a blank period in there somewhere" (at [288] above).

615. I am satisfied beyond reasonable doubt by the evidence of Ms King, Ms Simpson, Ms Allen, Ms Sobey and Ms Trebilcock:

(a) that at some point on 14 or 15 January 2014 a person entered the RSPCA premises in Weston and cut open the cage in which the dog known as Rocky was secured;

(b) that to open the cage, the person used a metal implement which broke in the process, and that parts of the implement were left in the area of the cage; and

(c) that Mr Mason was found in possession of pieces of metal that appear to be the remaining parts of the broken implement.

616. I am satisfied beyond reasonable doubt that Mr Mason was the person who entered the RSPCA premises, and that he had no lawful excuse for doing so.

617. I am also satisfied that it was Mr Mason who opened the dog's cage, and that the dog left the cage as a result of the cage being cut open. However, in order for the offence of theft to be established, I must be satisfied that Mr Mason "appropriated" the dog, that is, that he assumed "the rights of an owner to ownership, possession or control of" the dog.

618. Neither the photographs of the damaged cage, which show a reasonably sizeable hole in the cage wire some way above the floor of the cage, nor the evidence of any of the RSPCA staff members, provides an answer to the question whether, once the hole had been opened up in the cage wire, Mr Mason would have had to reach in and take the dog or whether the dog could have simply jumped out of the cage. Thus, whether Mr Mason actually removed the dog and took it with him, or simply allowed the dog out of the cage and allowed or encouraged it to accompany him back to his campsite, is not clear.

619. The evidence was that the dog was "hanging around" the area where Mr Mason was found on 16 January (at [97] above). Mr Mason told Constable Evans that it was his dog, that he had had the dog for several weeks, and gave the dog's name as Woof or Wolf (at [164] above). He also told Constable Yeend that the dog was his (at [169] above). There was, however, no evidence that Mr Mason had restrained the dog at any point, and nor was that fact established by Mr Mason's evidence that he wanted to keep the dog (at [288] above).

620. It may be arguable whether befriending a dog that is not otherwise constrained to remain in one's company, or even naming it, involves "appropriating" the dog. However, I am satisfied that, in making a hole in the cage wire sufficient to allow the dog to escape, Mr Mason did assume the right of the owner of the dog to control it, and exercised that right by, at least, enabling the dog to break free of his overnight confinement in the cage.

621. I am satisfied, although based on an inference from the definition of property quoted above rather than an explicit statement in the legislation, that a dog is "property" for the purposes of the theft offence. There was no claim that at any stage the dog had belonged to Mr Mason, and so I am further satisfied that Mr Mason dishonestly appropriated property (the dog) belonging to someone else (the dog belonged to the RSPCA by virtue of being in the RSPCA's possession), and that he intended to permanently deprive the RSPCA of that property.

622. There was evidence from Ms Sobey that it would have cost $495 for a person to "buy" Rocky from the RSPCA (at [129] above), and therefore the replacement value of the dog makes the s 321 offence available in this case.

623. Accordingly, I find that Mr Mason deliberately engaged in the conduct constituting the offences of trespass and theft.

624. The next question is whether Mr Mason has a mental impairment defence to the trespass and theft charges.

625. If I had needed to determine the availability of a mental impairment defence in relation to the fires, I would have concluded (as did both Dr Barker and Dr Allnutt):

(a) first, that at the time of each fire, Mr Mason was suffering from a mental impairment, being a mental illness, probably in the nature of bipolar affective disorder but possibly schizoaffective disorder; and

(b) secondly, that in the period between mid-December 2013 and the 16 January 2014 fire, he was in a manic phase of his illness.

626. It is possible, as asserted by the Crown, that some of Mr Mason's behaviour was caused by intoxication, but neither Dr Allnutt nor Dr Barker suggested that intoxication as an explanation for his behaviour at the relevant times was sufficient to exclude an underlying mental illness significantly affecting his behaviour.

627. I would also have been satisfied that a conclusion of mental impairment, manifesting as mania, was available in relation to the bushfire charges, despite the evidence of a number of witnesses who dealt with Mr Mason after the fires that he seemed anxious, but also lucid, calm, and able to have a sensible conversation (see, for instance, at [110], [139] and [145] above), and that he had a GCS of 15. In reaching that conclusion I would have relied on the evidence of Ms Kruger at [171] above, Dr Barker at [216] above, and Dr Allnutt at [407] above (to the general effect that Mr Mason's GCS of 15 on multiple occasions was irrelevant to whether he was suffering mania at those times), and more generally on Dr Allnutt's evidence at [397], [400] and [401] about how easily an observer could miss symptoms of mania and how easily some sufferers can disguise their symptoms.

628. The conclusion that Mr Mason was in a manic phase of a mental illness at the time of the 16 January fire, and had been at least since the second half of December 2013, is in my view also available in relation to the time of the trespass and theft offences charged, which were committed only a day or so before the 16 January fire.

Did the mental impairment have a relevant effect?

629. The next question is whether Mr Mason's mental impairment affected him at the time of the RSPCA offences so that he did not know the nature and quality of his conduct, did not know that the conduct was wrong, or could not control the conduct (s 28(1) of the Criminal Code, at [58] above).

630. Neither of the doctors specifically addressed Mr Mason's position in relation to the RSPCA offences (committed on the night of 14/15 January, a bit more than 24 hours before the start of the 16 January fire), although Dr Allnutt said that everything he had described as symptoms of mental illness was applicable to 14 and 15 January as well as 16 January (at [357(j)] above). Thus, the most relevant evidence about this matter is the evidence relating to the 16 January fire.

631. Neither of the doctors considered that at the time of that fire, Mr Mason's mental impairment meant that he would not have known the nature and quality of his conduct.

632. Dr Barker said (in relation to the 16 January fire, if Mr Mason had indeed caused it) that Mr Mason's ability to control his conduct would have been impaired to some extent but not non-existent, and that Mr Mason's ability to reason with a moderate degree of sense and composure about whether his conduct was wrong would have been less than perfect but more than basic (at [239] above).

633. Dr Allnutt believed that Mr Mason was able to control his actions. He opined that the evidence suggested that Mr Mason (if he did cause the 16 January fire) was at least aware that lighting the fire was wrong "in a legal sense", but was not willing to say that Mr Mason was also aware that it was morally wrong, noting that such an inference was a matter for the court. Pointing to the "apparent lack of motive", however, Dr Allnutt said that "it would be reasonable to infer that [Mr Mason's] offending was likely driven by symptoms of a mental illness and a mental impairment defence can be inferred". That is, Dr Allnutt's willingness to infer that, if Mr Mason caused either of the fires, his actions reflected a lack of understanding that his conduct was morally wrong was significantly based on the apparent absence of any motive for Mr Mason to cause the fires.

634. In relation to the RSPCA offences, however, there seems to be a clear enough motive. The evidence is that Mr Mason was keen to obtain a dog, and given where he was camping, the nearby RSPCA shelter was an obvious source.

635. For that reason, Dr Allnutt's suggestion (at [335] and [350] above), that if Mr Mason had caused either of the fires he might have been acting under the influence of some kind of delusion, does not seem to be relevant to the RSPCA offences. Nor is there any other evidence about how Mr Mason's mental impairment might have affected his decision to enter the RSPCA premises and take a dog.

636. In short, there is nothing in the evidence that provides a basis for finding, on the balance of probabilities, that Mr Mason did not know that it was morally wrong to break into the RSPCA premises and take a dog. In fact, there is nothing in the evidence even to raise the possibility that, as far as the RSPCA offences were concerned, Mr Mason's mental impairment had any relevant effect as described in s 28(1) of the Criminal Code.

637. For these reasons, the question dealt with at [76] above (whether the defence bears a legal burden, or only an evidential one, in relation to whether an accused person's mental impairment affected him in any of the ways set out in s 28(1) of the Criminal Code) does not matter to the resolution of the trespass and theft charges, and I do not need to express a final view on the question; however, in my view that issue should be further considered by those responsible for the form of the ACT's mental impairment provisions found in the Criminal Code.

638. I find Mr Mason guilty of the two RSPCA offences, namely trespass and theft.

Possession of prohibited substance (cannabis)

639. As previously noted, Mr Mason has pleaded guilty to this offence, and will accordingly be sentenced for it in conjunction with being sentenced for the trespass and theft offences.

640. Accordingly, the verdicts in this trial are as follows:

Count 1 (causing bushfire on 5 January 2014): Not guilty

Count 2 (causing bushfire on 16 January 2014): Not guilty

CC2014/5635 (light unauthorised fire on 5 January 2014): Not guilty

CC2014/1574 (light unauthorised fire on 16 January 2014): Not guilty

CC2014/1041 (possession of knife in public place): Not guilty.

I certify that the preceding six hundred and forty [640] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

[1] Henry Watson Fowler, A Dictionary of Modern English Usage (Oxford University Press, 2nd ed, 1965) 602. A more recent edition of this text (Robert William Burchfield, Fowler's Modern English Usage (Oxford University Press, revised 3rd ed, 2004) 749) does not refer to the "defining such", but simply includes examples of its use among examples of "incontestably legitimate uses" of "such".

This usage in legislation, and sometimes elsewhere, has also been long recognised (see for instance Ernest Gowers, The Complete Plain Words (Pelican Books, 1970) 197):

The draftsman ... escapes the need for repeating words of limitation by the use of such .... But using such in the way lawyers use it is not always out of place in ordinary writing. Sometimes it is proper and useful.

One month's notice in writing must be given to terminate this agreement. As no such notice has been received from you ...

Here it is important for the writer to show that in the second sentence he is referring to the same sort of notice as in the first and the such device is the neatest way of doing it.