R v Norris

An overview of the Crown case

1. The Crown case is set out in the amended Crown Case Statement. In summary form, the Crown allege that the accused resided at the time of the alleged crime as a sole occupant of a NSW Department of Housing villa style single level dwelling as part of a cul-de sac comprising 6 other dwellings of the same type located at 4 Marsden Rd St Marys. The accused resided at Unit 6 of that address from 8 September 2009. Sarah Donald ("Donald") moved to Unit 3 of that same address on 8 September 2009. Donald had been in a relationship with Alan Morris ("Morris") until they separated some time in 2020. Morris had been friendly with the accused and for a period the accused had stored motorbikes owned by Morris in his premises.
2. In 2020 the accused and Donald had an altercation over the sale of a vehicle with Donald owing the accused a sum of money.
3. Between 2 and 4 March 2020 the accused and his sister Sharon Norris exchanged texts during which the accused complained about Donald's failure to pay the outstanding sum owed on the vehicle. The accused said that it had been suggested that he "fuck the car up…flatten the tyres…". He said that it "won't be me…she will pay one way or the other…". Texts between Donald and the accused followed and on 20 April Donald told the accused that she was having difficulties meeting the repayments on the car but expected funds in about 4 weeks. The following texts indicate that Donald was not happy with the car and refused to make the final payment during June of 2020. She made reference to having reported the accused to police and housing (the specifics of which are unclear). In late June 2020, the accused texted his sister Sharon Norris referring to "that bitch" having reported him to Housing NSW about undisclosed income. He stated that he was going to report her for similar breaches in retaliation. Thereafter he was told that he was not to point his CCTV cameras at the Donald property. He texted her that he had put in a APVO application at Penrith Local Court. In July 2020 he reported to his sister that "Sarah [Donald] … is in the process of moving out, thank fuck" and later that his "PPO" had been denied by the court and mediation recommended but that the "neighbourhood was happy to see her go". He said that she had been packing things and not staying the night over the last week and just needed to "get her furniture and fuck off". On 21 August 2020, he said that "housing had visited" and that "Sarah and Al" had been "kicked out".
4. Contrary to the content of that last text message, Donald did not in fact move out from Unit 3 and continued to stay at the Marsden Road address sporadically up until the weeks immediately prior to the night of the fire, on 22 June 2021 when Donald reported staying at the address every single night.
5. On the evening of 21 June 2021, the accused was home alone. Donald and her son Morris left the residence at around 11:25 pm leaving their dog at home. They reported not leaving any electrical items on prior to vacating the premises.
6. At 12:26 am on 22 June 2021, the accused is captured both on the CCTV recording from his neighbour's premises at Unit 5 and the accused's own address at Unit 6, having a cigarette in his back yard.
7. At 12:29 am the CCTV at the accused address is turned off. CCTV however from Unit 5 continued to capture events at the accused's Unit 6 address. Lights can be seen turning on and off within the dwelling at Unit 6 on several occasions between 12:29:53 and 12:32:26.
8. At 12:34:49 am a sensor light is detected to turn on under the carport at the accused's property at Unit 7. About four minutes later, at 12:39:00 the CCTV captures a figure exiting the accused carport gate and walking through the driveway of Unit 7 and entering the side gate of Unit 3, being the address of Donald and her son.
9. At 12:43:36 am, the CCTV captures the figure leaving the side gate of Unit 3 and walking along the fence line and back through the carport gate of Unit 6. During this time the CCTV captures apparent smoke billowing from the direction of Unit 3.
10. The CCTV at the accused's home is re-activated at 12:50:08 am when the accused's lounge room light can be seen to be on.
11. The accused is captured on his own CCTV standing at his front door at 12:52:22 and is recorded saying the words "what the fuck".
12. Thereafter the CCTV captures Donald, her son and friend returning in their vehicle to Unit 3, seeing the fire, becoming distressed and attempting to extinguish the fire with a garden hose. Numerous neighbours can be seen in the vicinity with a high level of commotion, having been woken by notice of the fire. Neighbours contact 000.
13. At 12:54:06 am the accused is recorded standing at the front door of his unit facing towards the fire, smoking a cigarette and saying the words "I'm not doing this anymore".
14. On arrival of emergency services at 12:55 am, Unit 3 was described as fully engulfed in fire. After the fire had been brought under control, the Fire Investigation and Response Unit attended the scene.
15. At 1:00 am the police spoke to the accused and requested access to his CCTV footage. The accused told police that the footage was motion detected and only operated in those circumstances. The accused was described as severely intoxicated at the time. The police did not obtain CCTV from the accused at that time.
16. The police then requested CCTV from Unit 5. The occupant told police he didn't know how to share the CCTV recording and suggested the accused could help. The accused assisted the occupant to burn the footage in the presence of police but whilst he did so, he told the police that they only needed the one camera angle, referring to the camera footage that covered solely the driveway.
17. Donald and her son, Cody Morris, were spoken to by NSW Police in the early hours of 22 June 2021. She indicated that a previous fire had occurred at her home and that the accused had lit it. She nominated the accused, her ex-partner Alan Morris and Chris Morris as individuals possibly responsible for the fire and denied lighting the fire herself. She said that she did not have any contents insurance. Cody Morris indicated that he had seen the air conditioner on fire when he arrived back, and he was sure that he had turned it off. He said that he thought his dad had done it as he was "always threatening to do this".
18. The police spoke to the accused again at 08:30 am the next morning. During a discussion about the CCTV the police discovered that the device had been disabled between 12:29 AM and 12:48 AM. When the police returned, they utilised a body worn video to record the conversation. The accused told the police that he and Donald were no longer friends as she was a drug user and caused problems. He told police that she owed him $1400 for a car. The accused told police that he had been in bed when he heard the fire truck. He said that he had gone to bed sometime after midnight after he had consumed 10 to 12 beers. The accused was interviewed again at 12 noon the same day during which he admitted that he was the only person in his home the night before and that he had washed the clothes he was wearing in the interim. He denied leaving his property except to have a cigarette. He gave various explanations as to why the CCTV had not recorded between 12:29 and 12:49 am. The accused denied shutting the CCTV down himself. A subsequent expert statement was provided by an electrician who indicated that the explanations provided by the accused were inconsistent with the evidence.
19. A NSW Fire and Rescue expert investigated the crime scene and found that the three bedroom house had been extensively and significantly damaged by fire throughout. He found that the security on the house was poor and that a western side fence was unlocked. He was unable to find the point of origin of the fire and reached a hypothesis that it was possible that the fire was accidental, however that a hypothesis that the fire was incendiary was also possible. He considered that the ignition source may have been the lounge room. No electrical source of the fire was identified. An accelerant detection canine was brought to the premises at 11:28 the next day. The dog indicated at four different locations, namely on the floor in the living room and the doorway to the dining room, and in the vicinity of a pile of clothing in the laundry, in addition to two lawn mowers found in the rear yard.
20. The accused was spoken to again on 23 June 2021, the content of which was captured on body worn video. He said that he believed that someone had jumped the fence and entered through his neighbour's gate entering his own yard and shutting off the power to the CCTV. He said he believed this had been done to avoid the CCTV cameras. He suggested that after they have done this, they had gone back to the power source of his CCTV and turned it back on. He suggested that it had been done to make it look like he had caused the fire. The accused was reported to tell another neighbour that his cameras had "dropped out".
21. Police made subsequent investigations as to the location of Donald's ex-partner's brother, Chris Morris. At the time Chris Morris was subject to electronic monitoring and was placed at work in Wilberforce at the relevant time.
22. Forensic procedures carried out on the accused's hands proved negative for ignitable liquid residues. A jerry can located in his shed was found to contain petrol.

The nature of evidence founding the Crown case

1. Despite the equivocal nature of the opinion by the fire expert as to whether the fire was intentionally lit, the Crown case asserts that the circumstantial evidence indicates beyond a reasonable doubt that the accused was responsible for deliberately lighting the fire at Unit 3/4 Marsden Road, St Marys on the relevant day. Leaving aside the coincidence evidence sought to be relied upon, the circumstantial case against the accused is otherwise based upon the following evidence: 1. Sighting via the CCTV at Unit 5 of a person leaving and returning to the yard of the accused at Unit 6, before and after the fire at unit 3; 2. Sighting via the CCTV at unit 5 of house lights activated at times commensurate with a person moving within the home prior to the apparent deactivation of the CCTV within the accused's home; 3. Sighting via the CCTV from Unit 5 of sensor lights within the carport of the accused's home at a time commensurate with a person leaving unit 6 and approaching the yard of unit 3; 4. The apparent deactivation of Accused CCTV before and after the time of the ignition of the fire; 5. The exchange of text messages between the accused and Donald, a falling out over monies owed concerning the sale of the motor vehicle; 6. The exchanges of text messages between the accused and his sister, indicating a dislike of Donald and an expressed desire that Donald would vacate her government housing accommodation at Unit 3. 7. The accused's comment recorded on his CCTV that "this has to stop"; and 8. The accused's asserted lie to police that he had been woken by the arrival of the fire trucks when in fact it was clear from the lighting within the home and the presence of the accused at the front door that he was awake well before the time indicated.

The asserted co-incidence evidence

1. A significant additional piece of circumstantial evidence is the asserted coincidence evidence seeking to establish the accused's connection to multiple fire events in the past and after the relevant incident.
2. The content of the co-incidence notice indicates that co-incidence evidence is sought to establish that the accused deliberately lit the fire as alleged in the indictment on the basis that the 21 fire events contained in the notice are so similar to the event charged that it is improbable that they occurred by coincidence. It is submitted that the acts all indicate that they were each deliberately lit by the accused, and that they are each of significant probative value, establishing that it was the accused that was involved in lighting the fire that occurred on 22 June 2021 at St Marys and that the act was deliberate.
3. The evidence concerning the 21 fires sought to be adduced as co-incidence evidence is contained within the more than 900 pages marked as Exhibit B setting out the available evidence concerning various fires said to be associated with the accused between 14 December1996 and 23 September 2020, noting the fire the subject of the indictment took place on 22 June 2021.
4. The various fires can be described as follows: The following fire whilst the accused resided at Berala: 1. FIRE 1: On 14 December 1996 there was a recorded fire at the home of the accused at 120 Nottingham Berala resulting in the attendance of the fire brigade and police. The accused was present at the location and alone. He was reported to be consuming alcohol. The attending Detective Sergeant indicated that the fire brigade had identified the source of the fire as a clock radio and did not consider the fire to be suspicious. The following fire whilst the accused resided at Green Point: 1. FIRE 2: On 06 January 2002 there was a recorded fire at the home of the accused at 7/3 Teal Close, Green Point. Home and contents insurance had been updated several months prior. The accused was present at the location and was reported to be consuming alcohol. His wife was reported to be asleep at the time. It was determined the fire was deliberately lit where a bottle of methylated spirts and numerous matches were located near the front door of the premises, being the origin of the fire. The accused had called the fire brigade. The following fires occurred whilst the accused resided at Unit 4/66 William St North Richmond: 1. FIRE 3: On 07 January 2007 residential bins were reported to be deliberately lit by fire at the residence of 66 William Street, North Richmond. The accused resided at Unit 4 of 66 William Street and the structure that housed the collective bins was accessible to all occupants within the unit complex. The bin fire was reported to be the third fire in recent times with a similar fire in a sulo bin and a proximate grass fire. 2. FIRE 4: On 15 January 2007 vehicle WHD858 (owned by Robert Hinder), parked on the driveway of the accused's unit at Unit 4/68 William Street, North Richmond was reported to be damaged by fire. It was determined a fuel-soaked cloth had been placed on top of the offside rear tyre causing the fire. The fire was considered to be deliberately lit. 3. FIRE 5: On 08 January 2008 residential bins within the same brick structure as referred to in Fire 3 were found to be deliberately set on fire at the residential address of 66 William Street, North Richmond. The structure that housed the bins was accessible to all occupants within the unit complex. 4. FIRE 6: On 31 January 2008 at Unit 1/68 William Street North Richmond, a Holden Commodore was set alight. 5. FIRE 7: On 07 February 2008 at 5/66 William Street North Richmond, vehicle AI67KI was reported to be damaged by fire. It was determined a Jiffy fire-starter was wrapped in a face washer and plastic placed over the rear driver's side tyre and set alight. 6. FIRE 8: On 04 May 2008 at 66 William Street North Richmond four, residential bins were reported to be destroyed by fire. 7. FIRE 9: On 20 July 2008 at 3/66 William Street North Richmond, vehicle XYA590 was reported to be damaged by fire which commenced within the rear nearside tyre or wheel arch. The following fires occurred whilst the accused resided at 63 Malvern Ave, Baulkham Hills: 1. FIRE 10: On 18 June 2009 at 2:10 am at 61 and 63 Malvern Avenue Baulkham Hills, three vehicles one of which (YIP147) was owned by Sharon Norris (the accused's sister), was reported to be destroyed by a fire that was deliberately lit. Two other vehicles FEC777 and QCR594 had minimal damage. The accused was the first person to view the fire and attempted to distinguish the flames before notifying emergency services. 2. FIRE 11: On 17 August 2009 between 5:30 pm and 6:35 am, at 60 Malvern Avenue Baulkham Hills, vehicle AM84DB was reported to be damaged by a deliberately lit fire. It was determined that a cloth with turpentine was placed on the rear vehicle and set alight. The following fires occurred whilst the accused resided at Unit 6/4 Marsden Road, St Marys: 1. FIRE 12: On 30 January 2010 at the home of Margaret Walker ("Walker") 3/4 Marsden Road St Marys vehicle AJM48E was destroyed in a fire. During this time, the accused resided at 6/4 Marsden Road St Marys during which neighbourhood disputes are reported as taking place between the accused and Walker. 2. FIRE 13: On 11 February 2010 Walker reported the electrical meter box at the side of her house at 3/4 Marsden Road, St Marys was burning. This is said to have occurred between 02:00am - 03:00am. Walker was asleep at the time when the power was turned off. Unable to determine how fire started. 3. FIRE 14: On 23 April 2010 Walker reported vehicle OLC209 to be damaged by fire at 3/4 Marsden Road, St Marys. It was determined the fire commenced in the rear of the vehicle by an unknown accelerant. This incident occurred at approximately 03:30am. Walker reported waking to find her car on fire. The accused was the named person in need of protection in an APVO against Walker. Walker complained she was being targeted and suspected initially her ex-partner. Police concerned about Walker's mental health given a report she had received a diagnosis of schizophrenia. 4. FIRE 15: On 25 August 2010 it was reported vehicles TSN075 and AF77UP were damaged by fire at 7/4 Marsden Road, St Marys. It was determined an item was left on top of a tyre on each vehicle and set alight. The vehicle destroyed, belonged to him. 5. FIRE 16: On 01 February 2011 a deliberately lit fire occurred around 03:49am in a carport area at Unit 3/4 Marsden Road, St Marys, the home of Walker. It was reported that the unit structure, fence and her vehicle ACT09L were damaged in the fire. It was determined accelerant was used. The accused stated he had installed CCTV, albeit disabled the CCTV at 10:09pm. The accused recorded the incident on a hand-held video camera after the fire brigade arrived. Walker informed the police that the accused woke her up to tell her about the fire. Walker advised her car was not insured. The accused later told police that his CCTV was not recording, and he believed that Walker was lighting the fires herself to obtain new housing. Around this time; a neighbour Kim Reynolds said that he saw Walker yelling and screaming outside the accused's home "accusing him of things"; and saw Margaret Reynolds' son threaten the accused with a pole and heard him say that he was getting an APVO against the accused Walker's son, Michael Tempest reported that there were problems between his mother and the accused with two heated arguments in September 2010 and January 2011. He said he had suspected that the accused was throwing eggs at his mother's house, and that was what led him to threaten the accused with a baseball bat which had resulted in the APVO taken out on him. 1. FIRE 17: On 21 February 2011 a fire was reported in the carport of 3/4 Marsden Road at St Marys, causing extensive damage to the property and vehicle ACT09L. It was determined the power was disconnected from the residence and the fire deliberately lit. Authorities formed the view the fire started in the loungeroom. The accused stated his CCTV cameras were not working this night as his computer was not on. Walker had been admitted to hospital during this incident (between 21 January 2011 and 4 March 2011 at either Cumberland or Nepean Pialla Unit) and Michael Tempest was residing in Dundas Valley at the time of the fire (corroborated by telephone records). Walker nominated the accused as responsible. The accused was reported as being aware that Walker was still in hospital and told police that Walker was moving boxes prior to admission to hospital. Police suspected Walker of starting fire despite her inpatient status. After this fire Margaret Walker did not return to the Unit 3 /4 Marsden Road address. The opinion of Constable Best at the time was the fires occurred prior to any conflict between the accused and Walker and that Walker had increased her insurance prior to the fire. Inquiries indicated that Walker was considered a recidivist complainer to the Dept of Housing and had been requesting to leave the Marsden Road complex for a 12-year period. Constable Best considered the accused to be composed and concise and provided a detailed account. He considered him to be generally truthful. 1. FIRE 18: On 17 February 2016 at the accused's home at Unit 6/4 Marsden Road, St Marys the accused's vehicle BZ01VL was damaged by fire, reported to have started in the carport at 3/4 Marsden Road St Marys. It was determined a cloth was placed towards the front of the vehicle and set alight. CCTV footage from the accused's vehicle was viewed by police, however, was unable to be saved and provided to police. The CCTV footage was reported to capture everything except the area of access from the accused's backyard through to the carport. Fires involving Donald's premises: 1. FIRE 19: On 03 July 2020 it was reported rubbish was placed up against the door of a townhouse and set alight at the Unit 3/4 Marsden Road St Marys some time before 01:00am. The accused notified emergency services, where he admitted there was an ongoing neighbourhood dispute between himself and Donald. The accused's advised police his CCTV cameras were not working at the time. Donald reported to police that she had applied to the Department of Housing to be relocated due to issues with the accused. Donald nominated the accused as responsible for the fire due to "ongoing issues". Officer Whitely reviewed the available CCTV recorded from Unit 5/4 Marsden Road and observed a "shadow of a figure "move from Unit 3 to Unit 6. 2. FIRE 20: This incident on 22 June 2021 is the subject of the indictment. Other fires: 1. FIRE 21: On 19 February 2020 a lounge chair and carpet were reported to be set alight at Kelly's Top Pub Aberdeen. It was determined the fire was deliberately lit by a cigarette lighter. The accused was staying at the pub as he was installing CCTV cameras at the time and said to be the only resident who smoked cigarettes. The accused left the following day after the fire, without completing the installation of the CCTV cameras. 2. FIRE 22: on 23 September 2020 the accused reported his camper trailer had been destroyed by fire when he was located at Hills End. The trailer was photographed by authorities positioned in a cleared and vacant area of a camping ground. The accused reported to the authorities that he had left the trailer unattended in the Hills End campsite to obtain telephone coverage, and when he returned several hours later he discovered the trailer on fire. Subsequent investigations indicated that the accused had insured the trailer in December 2018 and renewed the insurance in 2019. Various text messages between the accused and his sister in late August 2020, three weeks before the fire, indicated that his sister had told him that "money was getting low" indicating that they were "$22,289 short". The accused responded to his sister that he better "pull his finger out and sell the camper" after which they discussed insurance on a motor bike. He told his sister on 20 September 2020 that he was taking the trailer camping and then planned to sell it. On 8 October 2020 the cash settlement of $27,800 was paid to the accused in respect of the fire damage sustained to the camper.
5. In addition, the Crown relies upon satellite images indicating visually the location of fires proximate to the home of the accused in respect of his neighbours' premises concerning the William St, North Richmond address, the Malvern Avenue, Baulkham Hills address and the Marsden Road address (Exhibit D).
6. Finally, the Crown tendered a statement from the officer in charge, Sergeant Richardson, as part of his duties with the Nepean PAC Intelligence Team, utilising a Microsoft program to calculate and depict the number of reported fires recorded by NSW Police and entered via the COPS system during selected time frames in the surrounding areas of the various locations where the accused resided before, during and after his period of residence at each of the three locations at William St, North Richmond, Malvern Avenue, Baulkham Hills and the Marsden Road address. From that analysis the following information may be gleaned: 1. North Richmond: 1. In the 3-year period between 11 April 2003 and 10 April 2006, before the accused moved to the address at 68 William Street North Richmond, there were 16 fires reported in the North Richmond area overall, but none in the immediate location of William Street, North Richmond; 2. In the period between 11 April 2006 and 13 November 2008, being the period the accused resided at 68 William Street, North Richmond, there were 28 reported fires in the North Richmond area, 15 of which were reported as occurring in William Street (7 of which are relied upon as circumstantial evidence in this case); and 3. In the 5-year period between 14 November 2008 and 13 November 2013, after the accused had left the North Richmond address, the total number of fires in the area dropped to 20, with none of them taking place in William Street. 1. Baulkam Hills: 1. In the 3-year period between 12 November 2005 and 13 November 2008 before the accused moved to the Malvern Avenue address there were 61 fires overall in the district of Baulkam Hills, none of which were recorded as taking place in Malvern Avenue; 2. In the period between 13 November 2008 and 8 September 2009 when the accused resided at the Malvern Avenue address, there were 22 fires reported in the Baulkam Hills district, 5 of which were reported in Malvern Avenue; 3. In the 3-year period between 9 September 2009 and 9 September 2012, after the accused had left the Malvern Avenue address, there were 55 fires reported in the Baulkam Hills district, none of which were identified as taking place in Malvern Avenue. 1. St Mary's: 1. In the 3-year period between 9 September 2006 and 9 September 2009, before the accused moved to the St Mary's address, 129 fires had taken place in the district of St Marys, 2 of which had occurred in Marsden Road; 2. In the 11-year period between 10 September 2009 and 30 September 2021 when the accused resided at the St Mary's address, 471 fires had taken place in the district of St Marys, 20 of which had taken place in Marsden Road (nine of which are relied upon in the Crown case); 3. In the period from 30 September 2021 and 29 May 2023, after the accused had left the St Mary's address, 35 fires were reported in the district, none of which related to the Marsden Road location.
7. From this summary, it is submitted it can be said that the street locations in which the accused resided saw a marked increase in fire incidents after the accused had moved into the relevant properties, and the street locations saw a marked decline in fire incidents after he left the respective locations. The Crown conceded that the exercise carried out by the officer in charge indicated that fire incidents generally were not an uncommon event in the relevant districts.

The Crown submissions

1. The Crown does not seek to rely upon the 21 fires listed on a tendency basis but rather submits that the fires, when viewed together, establish a pattern of similarities from which a fact finder may draw an inference that the similarities point to a common cause and a person. The nature of the asserted co-incidences fall into five identified categories: 1. Co-incidence 1: in each event the accused resided or was located in close proximity to where suspicious/deliberately lit fires occurred as concerns fires 1 - 22; 2. Co-incidence 2: in each event the accused's CCTV was not operating or failed to record at and around the time of the fires as concerns Fires 15 - 20; 3. Co-incidence 3: in each event the accused either saw the fire, was the first on the scene or notified emergency services as concerns Fires 1, 2, 10, 18, 22: 4. Co-incidence 4: in each event property belonging to the accused or persons residing with the accused were damaged by fire as concerns fires 1, 2, 10, 15, 18 and 22. 5. Co-incidence 5: the alleged arsonist can be seen attending the scene of the fire via the accused's property as concerns fires 18 and 20.

Probative value

1. The Crown asserts that in accordance with IMM v The Queen [2016] HCA 14 at [11], when assessing the probative weight of the evidence, it is to be taken at its highest, requiring the consideration of the combined effect of all the relevant similarities, rather than considering each fire in isolation. The Crown submits that the evidence viewed as a whole displays an underlying commonality that goes directly to the facts in issue, namely whether the fire was deliberately lit and secondly, whether it was the accused that lit it. The Crown submits that the combined weight of the 21 fires, both as to number and similarities between them, supports the available inference that it is the one arsonist at work, that the fires were deliberate and that it is improbable that the fires were occurring co-incidentally or accidentally.
2. The Crown asserts that the evidence has significant probative value because it places a different complexion on various parts of the Crown evidence in a number of ways: as to the comments recorded on the CCTV footage by the accused when he opened his front door and watched his neighbour's house burn that "I'm not doing this anymore"; the fact that the accused turned off his own CCTV recording just prior to the time the fire at Unit 3 was set alight as had arguably occurred on previous occasions; and that the history of his involvement with other fires indicates that the accused resolved his problems (financial or neighbour related) with lighting fire.
3. The Crown submits that the dissimilarities in some of the fires did not detract from the strength of the co-incidence evidence or diminish the improbability of the coincidence between the various fires.
4. The Crown submits that there is no basis upon which it is asserted that the probative value of the evidence is substantially outweighed by any prejudice effect it may have on the accused, per s 101.

The accused's application

1. The accused does not take any issue with reasonable notice but opposes the admission of the co-incidence evidence.
2. The accused addressed directly the 5 steps identified by Justice Simpson in R v Gale; R v Duckworth [2012] NSWCCA 174. As to step 3 requiring the identification of the similarities in the events and/or the similarities in the circumstances in which the events occurred, the accused submitted that the identified fires failed to demonstrate similarities for the following reasons: the various fires did not identify the involvement of the accused; had potentially innocent explanations as they had not been established as deliberate; the fires were located in common areas; and/or the police at the relevant times had otherwise identified others as likely responsible. In respect of the asserted co-incidence involving the disabling of CCTV, the accused noted that as to Fire 15 there was no reference to the accused disabling the CCTV, and in respect of Fire 18 the accused had provided the CCTV to the police. The accused further asserts that two of the identified co-incidence categories did not share common features with the fire the subject of the Crown case (such as being first on the scene or being seen to extinguish the fire or contact the authorities, or the fire relating to his own property). Further, the accused submitted that the reliance on some of the fires (such as 21 and 22) involved tendency reasoning rather than shared similarities.
3. As to step 5, the accused identified the various dissimilarities between the fires noting they involved different times and places; there were significant gaps between them; and most involved incidents concerning vehicles outside of his unit with different modus operandi.
4. The accused submitted that the asserted similarities did not reach a degree of improbability such as to be of significant probative value to the issues in the trial. The accused distinguished the present circumstances to the case of Tamara Hunt v R [2017] VSCA 196 which involved 36 fires which each had been charged and involved bushfires with similarities in common in areas proximate to the accused and within a confined period.
5. As to the sixth step per s 101 EA, the accused submitted that even if the Court found the co-incidence evidence admissible the probative value of the evidence was outweighed by the prejudicial effect of the evidence for the following identified reasons: (1) the jury would be swayed by the weight of the uncharged allegations making it difficult for them to give separate consideration to the issues in the trial; (2) the jury might engage in tendency reasoning; (3) the accused was at a significant disadvantage to rebut the evidence of the historical fires; and (4) there was a real risk that in the circumstances the jury would not be able to comply with directions.

THE LAW

1. Coincidence evidence is a form of circumstantial evidence and will usually form part of the circumstantial case together with other evidence that may indirectly prove the guilt of the accused. Evidence of this kind is to the effect that two or more events are connected through their similarities, so that a fact finder may draw inferences that the similarities point to a common cause, or to a common purpose, behind the evidence, which may assist in deciding facts in issue. The similarities between the events are said to make it unlikely that the events are a mere co-incidence and unrelated to each other, such that it is improbable that the events occurred co-incidentally.
2. Prior to the enactment of the EA, Gibb CJ in Perry v The Queen (1982) 150 CLR 580, 588 in which the Crown relied upon similar fact evidence, held that it was the improbability that in that case, a number of deaths would occur in similar circumstances merely by coincidence that gives evidence of that type its probative force. Such circumstances it was held would be contrary to ordinary experience as occurring by co-incidence.
3. The relevant legislative provisions that now have application are set out in the EA. Section 98 contains the Coincidence Rule, which provides as follows: 1. Evidence that 2 or more events occurred 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 occurred, it is improbable that the events occurred coincidentally unless: 1. the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and 2. the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 3. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
4. Section 99 EA provides that notice under section 97 is to be given in accordance with any regulations or rules of court made for that purpose.
5. Section 101(1) EA (relevantly) provides: 1. This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. 2. Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
6. The term 'probative value' is defined in the Dictionary of the Act to mean: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
7. The current form of s 98 EA took affect from 1 January 2009. As was observed by Beech Jones CJ at CL in R v MR [2013] NSWCCA 236 ("R v MR"), (at [61]) both of its forms were intended to establish an exclusionary rule designed to prevent the adducing of evidence for a particular purpose, or more accurately, that seeks to invoke a particular form of probabilistic reasoning designed to establish a particular fact or state of mind, unless it has significant probative value. For the reasons set out in his Honour's judgment (at [61] - [63]) the amended provision was designed to overcome the narrowly expressed earlier version of the provision.
8. The approach to the admissibility of coincidence evidence was considered by the Court of Criminal Appeal in DSJ v R (2012) 84 NSWLR 758, at [6]-[9], [11], [56], [72]-[82]. The decision approved R v Zhang (2005) 158 A Crim R 504 ("R v Zhang") (which concerned an earlier iteration of s 98 EA) in which Simpson J (with whom the other members of the Court agreed) said, at [139] - [140]: 139 In Fletcher (at [32] - [35]) I analysed the processes by which the tender of tendency evidence under s97 of the Evidence Act is to be determined. The analysis is no different in the case of evidence tendered under s98. The principles are these: -

(i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value;

(ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act);

(iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury;

(iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete;

(v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s98 mandates that the evidence is not to be admitted. 140 In the case of coincidence evidence, an anterior step is required by subs(2) of s98. It is necessary to determine whether the two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar. Since admission of the proposed evidence depends upon the existence of relevant similarities, it is obvious that this assessment is to be made by the judge and not left to the tribunal of fact.

1. As Beech Jones CJ at CL identified in R v MR (at [66]), the anterior step referred to above in Zhang, is no longer required under the new s 98, reflecting again the purpose of the amendment to broaden the body of evidence that engaged the provision. His Honour observed however that it remains necessary for the party to identify the reason they seek to tender the evidence in question in order to establish whether in seeking to invoke the "basis" referred to in s 98(1). As part of that process the tendering party will need to identify the events that are said to have occurred, the particular act or state of mind that it is said that the evidence of the events proved, the relevant similarities that are relied upon and the reasoning process that is sought to be engaged.
2. In R v Matonwal [2016] NSWCCA 174 at [70]-[76], Bathurst CJ (Rothman and McCallum JJ agreeing), considered these various authorities holding: 1. [70] It is convenient to deal first with the admissibility of the evidence as coincidence evidence. In DSJ v R [2012] NSWCCA 9; 84 NSWLR 758 (DSJ), Whealy JA, with whom the other members of the Court agreed, stated that the first question to be asked was whether the evidence was relevant, that is, whether, having regard to the provisions of s 55 of the Act, it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings: at [53]. In his judgment, Whealy JA, at [62], cited with approval, subject to one relevant qualification, the following passage from the judgment of Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [139]: [As above] [71] The qualification was that, in conducting the evaluative and predictive process referred to in subpar (v) of the passage, the court may have regard to the possibility that from a consideration of all the Crown's evidence (including the coincidence evidence), there emerges a real possibility of an explanation inconsistent with guilt and then the court must ask whether that possibility substantially alters its view of "the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue": at [79]-[80]. In my judgment in DSJ, I explained that the task is to be performed having regard to all the evidence sought to be relied on by the party seeking to tender the coincidence evidence: at [10], Allsop P and McCallum J agreeing. [72] In R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487, Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, summarised the approach to be adopted as follows: … [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." 1. [73] Further, as was pointed out in R v MR [2013] NSWCCA 236, it is necessary to give consideration to the evidence sought to be tendered as a whole, rather than separate consideration of each particular circumstance relied upon: at [9]-[10] (Schmidt J), [78]-[79] (Beech-Jones J).
3. Based upon the above authorities it is clear that close attention will be required in respect of the suggested similarities between the events and/or the circumstances in which they occurred and that the assessment as to whether the evidence of the relevant events has significant probative value requires consideration of the combined effect of all the relevant similarities, rather than sequentially or in isolation.
4. I accept that coincidence evidence does not have to prove the identity of the person, nor is there a requirement to show that the evidence reveals striking similarities between events or circumstances within events or both, however it is recognised that in the absence of proof as to the identity of a person in relation to an event, the absence of striking or unusual similarities will make it less likely that the requirement of significant probative value will be satisfied Similarly, in that assessment it has been held that it was a mistake to treat relevant similarities, features or circumstances that were found to be outside a person's control: PNJ v DPP (Vic)(2010) 27 VR 146 at [22] - [23].
5. It is accepted that the required probative value of coincidence evidence may arise in different ways: R v Matonwal at [24]. In Xie v The Queen (2021) 386 ALR 371, the number of events was relevant to the question whether the evidence had significant probative value. The Court held, at [785]: "… the significance of the number of events really depends upon a variety of circumstances such as the nature of the events, uniqueness or otherwise of their qualities, and the nature of the facts in issue to which the evidence is said to be relevant. For example, if an event or circumstance is quite unique, seeing it replicated elsewhere just the once might be quite significant, whereas something less unique might need to be seen elsewhere a number of times before it could assume significance..."
6. In CW v The Queen [2010] VSCA 288, the applicant had been charged with three separate arsons and the probative value of the coincidence evidence rested on the fact that the victims of the fires were all persons with whom the applicant had business dealings and with whom he was in dispute. The Court of Appeal observed that the basis of the coincidence reasoning relied on the existence of a relationship which uniquely linked the accused with two or more victims of similar crimes, at [22]. In Patton v The Queen [2021] VSCA 104 which concerned five counts of intentionally causing a bush fire, the Appeal Court approved the decision of the trial judge to allow for co-incidence evidence to be admitted in light of the proximity of the fires to each other and the temporal and geographic location of the accused, together with his motive. In Davies v The Queen [2019] VSCA 66 the Appeal Court confirmed the trial judge's decision to admit the co-incidence evidence in a trial concerning 5 counts of intentionally setting fire to and damaging various buildings on the basis that the appellant was present at the scene of the fires which all took place within a relatively small geographic area, shared the same modus operandi within locations that the accused had no particular reason to be located, at [159].
7. As to dissimilarities between the asserted circumstances, the Court in Selby v R [2017] NSWCCA 40 ("Selby v R") (at [24]) held that the questions ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. The question is whether the dissimilarities undercut the improbability of something being a coincidence, and whether they detract from the strength of the inferential mode of reasoning permitted by s 98: Selby v R , at [26].

Weighing test: S 101 consideration as to whether the probative value of the evidence outweighs any prejudicial effect

1. It must be recognised that the number and breadth of the evidence sought to be adduced as circumstantial evidence in trials runs the risk of overwhelming in detail and time the evidence concerning the criminal allegations relating to the subject of the trial itself. Such evidence is recognised as potentially assuming considerable importance in criminal trials and is generally treated with caution because of the impact of the syllogistic reasoning process called for on the finder of fact in their assessment of what are essentially secondary or collateral facts: Elomar v The Queen (2014) 316 ALR 206, at [360]. The risks are well recognised including that a jury might reason that if an accused person committed similar offences in the past they must have committed the offence for which they stand trial, or even the temptation to punish the accused for the untried acts even if the threshold for the subject offence is not satisfied.

Tendency versus co-incidence

1. The accused argued that some of the evidence sought to be adduced by the Crown fell into the category of tendency evidence rather than coincidence evidence, with particular application to Fires 2 and 22.
2. It is accepted that the distinction between co-incidence and tendency evidence is not always clear cut and there can be overlap between the concepts in certain factual situations: Ellis (2003) 58 NSWLR 700.
3. In R v Nassif [2004] NSWCCA 433 at [51] - p52] Simpson J explained the difference as follows: "... Tendency and coincidence evidence are frequently referred to in the same breath, as though they were conjoined twins. However, they are not necessarily so interlinked, and there will be cases where evidence of tendency will be admissible when evidence of coincidence is not, and vice versa. In some cases, the sections may be used interdependently, or as the obverse of one another. For example, in a case such as the present, the crown may wish to proceed by arguing that, if a jury found the applicant guilty of anyone count, they could use his guilt of that offence and considering his guilt of any other offence, as evidence of his tendency to commit such crimes, and successive findings of guilt as accumulating or strengthening evidence of such a tendency. That would be true tendency reasoning. The more numerous the claims of tendency evidence, and the more specific, the stronger the probative value, and thus the more likely the admission of evidence. Alternatively, the Crown might argue, in terms of section 98, that the applicant was guilty of all offences because of the improbability of the events occurring coincidentally. In this respect the Crown would be entitled, under subsection (2) to point to the similarity of the events, and the similarities of the circumstances in which they occurred. Again, the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence. He submitted in relation to tendency evidence that what has to be established separately is the tendency itself. As such tendency evidence works temporally and incrementally in order to establish the alleged tendency. Conversely, he submitted that coincidence evidence invokes a different process of reasoning that involves identifying events that are often not disputed, from which a conclusion can be drawn that the alleged evidence is not a coincidence. He submitted that as soon as references made aspects like the sheer number of complainants in one's reasoning to coincidence rather than tendency."

Questions of admissibility on other bases

1. The issue was raised during the oral hearing as to the mode of proof of the evidence adduced in short form on the co-incidence application. The accused did not seek to advance it in substance on the application however stated that issues as to admissibility may arise as to the form of proof of the evidence following the decision as to which, if any, of the fire events would be admitted into evidence following this application. Depending on what if any of the evidence is to be admitted, further applications may be made in respect of the form of the evidence ultimately relied upon.

Relevance

1. The first matter that the Court needs to determine is whether pursuant to s 55 of the EA, the evidence in question is relevant. That is, is it evidence that if it were accepted could rationally affect either directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings.
2. Here the combined effect of the 21 fires go to the ultimate issues in the trial as to the accused's participation in the fire and whether it was intentionally lit.
3. I am satisfied that, if admitted, the range of fires contained within Fires 1 - 19 and 21 - 22 satisfy the threshold test of relevance in that they independently and taken together, could rationally affect the assessment of the probability of the existence of a fact in issue on the basis of the number of fires and the common feature of the accused's presence in one form or another at each of them.

Gale Steps

1. I intend to break the matters down into the identified steps set out in Gale. Step 1: the act that is sought to be proved is that it was the accused that set fire to Unit 3/4 Marsden Road St Marys at the relevant time, and that the act was deliberate.
2. Step 2: the extracted events are set out at [33] above concerning the 21 fires.
3. Step 3: is to identify the similarities in the events or the similarities in the circumstances in which the events occurred by reason of which the Crown asserts the improbability of coincidental occurrence between the events or the event. The similarities that arise are co-incidence 1 and 2. There are additionally similarities which I highlight in Step 5 below. It is these additional similarities that justify a finding that some of the evidence has substantial probative value.
4. Step 4: no issue is taken with notice, as set out above.
5. Step 5: The similarities that I consider arise that have substantial probative value fall within the loose categories identified on the Notice being Coincidence 1 and 2. 1. The additional similarities that I identify that arise from the evidence concerning all the fires that fall within the first category of identified coincidence that give them substantial probative value concern the evidence of animosity between the victims of the fire and the accused as concerns Fires 12 - 14; 16 - 19. 2. As to category two, the addition similarities concerning the identified fires that give the evidence substantial probative value is that they are suspicious, and they are physically proximate to the accused's residence in circumstances where the accused failed to activate/deactivated, or failed to provide access to, his CCTV: as concerns Fires 16 - 17; 19.
6. The identified evidence, taken at its highest, is capable of being of consequence or importance in establishing that the accused was involved in the fire on 22 June 2021. On the basis that the evidence is to be taken at its highest per IMM at [4], I reject the submission made by the accused that the evidence concerning the Walker fires was not of substantial probative value because the police at the time failed to identify the accused to be the main suspect in the fires and that there was another available inference. The process of considering all the evidence, allows that particular series of fires to be seen in a different context, and as IMM establishes, the evidence for the purpose of the application is to be taken at its highest.
7. As to the remaining fires, I do not find that fires that are not established to be deliberately lit or are otherwise identified as potentially accidental have significant probative value, even if they carry that suspicion in retrospect: namely Fire 1.
8. Similarly, I do not consider fires that concern damage to the accused's own property, in the absence of an insurance claim, have significant probative value, particularly as they share few similar features with the subject of the trial. This relates to Fires 4, 9, 10, 11, 15. That is that the fires that occurred in public areas, even if proximate to the accused or his residence, share little common features to the subject trial as there is an absence of any particular motive for the accused to undertake such conduct; lack of any evidence other than proximity of the accused's involvement and they do not involve evidence of any failure to activate CCTV devices that were otherwise operational at the time. I note also the totality of the evidence indicates that the various addresses resided by the accused were not within districts that were not known to have fire events before the accused arrived. In these various ways therefore, on the available evidence they lack significant probative value. This concerns Fires 3, 5 - 9 and 21. These fires are far from displaying similarities of the very facts that the Crown hopes to prove by the coincidence evidence: namely that it was the accused who lit the fire, and that he did it deliberately. As Simpson J found in R v Gale (at [37]) such an approach is a "classic instance of 'begging the question' …It assumes the very facts that the DPP seeks to prove…. similarities for the purpose of s 98 must be capable of proof by means other than the 'facts' sought to be established".
9. I have given significant thought to Fires 2 and 22. They of course do not concern neighbourly spats but rather have a financial motive. Whilst they fall within the broad category of the first identified co-incidence, they share few similarities with the fire on the indictment. Whilst those fires, taken together are capable of being powerful pieces of evidence for the Crown case, the essence of the probative value of the accused's connection lies in tendency reasoning: potentially a tendency to have a certain state of mind and to act in a particular way: namely to deliberately light fires for the purposes of personal gain (whether via an insurance claim/or to achieve a certain outcome). Neither the evidence of damaging the accused's own property by fire, nor the property of his sister, even in the context of actual or inferred claims for insurance, shares sufficient similar features with the offence charged necessary for co-incidence evidence, except in the tendency sense identified above. In the absence of a tendency notice and sufficient notice to the accused, this evidence cannot be admitted on the current application
10. As to the sixth step, there are three identified reasons why the accused will be prejudiced by the admission of the evidence identified at [74] above. Firstly, if the evidence is admitted the quantity of evidence adduced on the issue of co-incidence on trial, risks overwhelming the single count contained on the indictment; secondly, many of the fires took place some time ago, making it difficult for the accused to adduce evidence in his defence producing a significant forensic disadvantage to the accused. Further, there is a risk that the jury would adopt tendency reasoning in circumstances where the Crown presently at least, do not assert such a tendency.
11. I am satisfied directions in accordance with the current NSW Bench Book, can be given to the jury to address any danger of the refined list of co-incidence evidence being misused. The trial judge will no doubt direct the jury about the limitations on the uses to which they can put the evidence led for coincidence purposes. They will accordingly be directed not to reason impermissibly as to poor character, nor to reason in a tendency fashion. I am satisfied that the jury will follow such directions.
12. Accordingly, I am persuaded that the probative value of the evidence identified at [74] above substantially outweighs any prejudicial effect. Prejudice may be best ameliorated by the admission of agreed facts pursuant so 191 EA document concerning much of this evidence that may be uncontentious, however that decision is ultimately clearly an issue for the parties.

DETERMINATION

1. I admit the evidence concerning Fires 12 - 14 and 16 - 19 pursuant to s 98 EA.

Amendments 04 December 2024 - Corrected paragraph formatting DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2024