Ibrahim Saad stopped his car and recognised that it was the deceased's car, which of course by then had been burned.
41 Ibrahim Saad said that police were at the scene and would not allow them to go near the car. Mary Saad had asked the police what had happened, and they told her that the deceased was inside the car but that they were not allowed to see him. According to Ibrahim Saad, Mary Saad and Hany Saad were crying and after about 10 to 15 minutes the police told them to go home, which they all did. But then they returned again several times that evening to the deceased's car. Later, police showed Ibrahim Saad a gold necklace and bracelet, which he had identified as belonging to the deceased and gave to Mary Saad.
42 Expert evidence established that the car had been set alight deliberately using a significant amount of petrol as an accelerant. Ross Hancock was a Detective Senior Constable of police stationed at the Preston Criminal Investigation Unit. He testified that he had arrived at the scene at 2.45am, and satisfied himself that the scene had been preserved. He then made inquiries with relatives of the deceased, and spoke to various persons at the Sunshine Hospital. He ascertained that there were no security cameras in operation at the Hospital that night.
43 John Desmond Kelleher was a scientist at the Victorian Forensic Science Centre. His duties involved the investigation and examination of fires and explosives. He attended Majorca Street at 7.30am on 18 February 2001 and examined the deceased's car, a Ford sedan registered number EHN 405, which was parked correctly at the curb facing north in front of number 13. He inspected the car, and observed damage to a tree overhanging the car and the nature strip beside the car. Mr Kelleher said that his preliminary examination of the car revealed that the fire had not spread to the engine compartment or boot of the vehicle, although those areas had been heat affected. The front doors were more damaged than the rear doors, and all of the windows were missing. He reached the conclusion that there had been a very intense fire in the passenger compartment of the car. There was a burnt body in the driver's seat of the car, and the driver's seat belt was fastened on the deceased. He said that arrangements were made to convey the vehicle to the Victorian Institute of Forensic Medicine in order for the body to be removed, then the car was conveyed to the Victorian Forensic Science Centre for further examination.
44 Mr Kellehar said that he later conducted a detailed examination of the car. There was limited damage to the rear of the passenger compartment of the vehicle, but severe damage to the front doors, front seats and dashboard of the car. There was an area of the front seat that was less damaged, as it had been protected by the deceased's body. The windows of the car were all in the up position prior to the fire, except for the driver's window which was down 5-6 centimetres. The front doors were closed and locked, and the back doors were closed, but he could not say whether they were locked due to damage to the lock mechanism. In the driver's foot-well of the car immediately below the ignition switch, Mr Kelleher discovered a set of keys which he thought were car keys, although they were heat affected and melted so he could not be certain what they were. He and another expert also undertook investigations as to whether there was an electrical fault that may have caused the fire, and there was no evidence of it. Mr Kelleher examined samples of carpet and underlay taken from the foot-wells of the car to ascertain whether any flammable or combustible liquid was present. He found hydrocarbon residues mixed with residues from burnt plastic in the driver's foot-well. He found middle to high boiling point components of petrol in the other three foot-wells. He located the remains of a small disposable cigarette lighter in the car. He did not locate any petrol containers in the car but did locate melted plastic which he said may have been the remnants of a container. As a result of his investigation, Mr Kelleher concluded that the cause of the fire was the ignition of petrol on the deceased's person and on the driver's seat of the car. He considered it was likely the fire started in the driver's seat, although he could not exclude the possibility that it had started somewhere else. Mr Kelleher said that he had previously attended other scenes of fires in stationary motor cars, including about a dozen where persons had been incinerated. He said that, in his experience, it was unusual for the deceased in such cases to be wearing a seat belt. Mr Kelleher could not recall seeing that before, and observed that people who set fire to themselves in cars often try to get out of the car and remove their seat belt in the process. If, however, a person were unconscious or semi-conscious, they would to some extent be held in place by the seat belt.
45 Mr Kelleher said that petrol vaporises when exposed to air. The liquid is flammable but it is the vapour that actually burns and the process of burning varies with the concentration of vapour. Petrol vapour once ignited will always explode, but the concentration of the petrol vapour determines the size and violence of the explosion. Mr Kelleher said that there had to have been some sort of explosion in the car, because there was burnt petrol, but there was no evidence of a major explosion. Mr Kelleher said that it would have been possible to ignite the petrol in the car by throwing a lighted match inside the 5cm gap in the driver's window.
46 In cross examination Mr Kelleher said that he had considered the possibility of petrol having been moved around the car by the fire hoses, but did not consider that it sufficiently explained what he had observed. He could not say what quantity of petrol was in the car, except that there were litres of petrol rather than millilitres, and there was considerably more in the front of the car with the largest concentration found on the driver's seat. Mr Kelleher said that he could not recall whether the car was fitted with inertia reel seat belts but he agreed it was possible for a person sitting in the driver's seat wearing an inertia reel seat belt to pour petrol over the front of the car, and could not exclude the possibility that such a person might also spill some petrol on the rear foot-well. Mr Kelleher said that he has attended car-fire suicides in the past, which involved persons pouring petrol over themselves and setting themselves alight. Mr Kelleher further testified that he found two medical or pill bottles and a crucifix in the car, and two rings in the middle console, and a piece of paper containing some religious text on the passenger seat and the remnants of a wedding invitation. He also found the remnants of a cigarette lighter, although he did not examine it any further. Mr Kelleher agreed that he had attended arson scenes where people had been burnt when they tried to light petrol and further agreed that there was nothing inconsistent forensically in what he found with the deceased setting fire to himself .
47 Further evidence established that in the weeks before the deceased's death Mary Saad had consulted two medical practitioners in order to obtain substantial supplies of the drugs which were used to sedate the deceased before he was set alight. Dr Raouf Bassily was a medical practitioner who practiced as a gastroenterologist. On 15 January 2001 he saw the applicant Mary Saad, who was referred to him by her general practitioner. She had complained of stomach pains and vomiting and Dr Bassily thought she may suffer from functional bowel problems caused by anxiety. He made arrangements for her to have a gastroscopy, but she did not attend the appointment. He prescribed drugs for her including Oxazepam, which is a minor tranquilliser that tends to relieve anxiety in the short term and assists sleep. Dr Bassily prescribed her one packet of 24 Oxazepam tablets in 15mg dosage, and directed she take two tablets a day for 12 days. In cross examination by counsel for Mary Saad, Dr Bassily agreed that Mrs Saad was referred to him in October 2000 and that it took some months for her to see him. He said that in January 2001 Mrs Saad had presented with symptoms the same as those of which she had complained of in October. After seeing her, Dr Bassily wrote a report to Mary Saad's general practitioner in which he reported that she complained of intermittent episodes of dizziness, "crampy" abdominal pains, nausea and vomiting, and that the symptoms woke her from sleep at night. Dr Bassily formed the view that she suffered from anxiety, and prescribed the medication to help her calm down a bit.
48 Dr Mary Wahib Zaky was a medical practitioner, practicing as a general practitioner at St Mary's Medical Centre in St Albans and Box Hill. Her husband, Dr Joe Yazza, was also a medical practitioner. The applicant Mary Saad was a patient of Dr Zaky, having first seen her at the St Albans clinic in July 1999. On 20 October 1999 Dr Zaky prescribed Mary Saad with Celebrex, an anti-inflammatory drug, to treat her right knee. She was prescribed one box of 30 capsules, and directed to take one tablet per day. On 27 October 1999 Mary Saad reported that the Celebrex was not assisting her, and Dr Zaky advised her to stop taking it and prescribed other medication. On 1 November 2000 Mary Saad attended and requested a pregnancy test, which returned a positive result. Dr Zaky asked what her attitude was to the pregnancy, and Mrs Saad said she was going to consider her position. On 8 November 2000 Mrs Saad attended the clinic with her husband. Initially, she spoke to Dr Zaky alone. Mrs Saad told Dr Zaky that she wanted to terminate the pregnancy because she did not want to have another child. She said that she could not cope with a third child and asked Dr Zaky to tell her husband that it was advisable that she have a termination if she could not cope. The deceased subsequently joined his wife in Dr Zaky's room, and Dr Zaky told him that it would be in Mary's interest to terminate the pregnancy because psychologically she could not cope with a third child. Dr Zaky could not recall any discussion about deformities and said she would have noted this had such discussions occurred. In fact as DNA evidence later established, the child had been conceived as a result of the affair between Mary Saad and Hany Saad. Whether the deceased knew that or suspected it is not clear. But the doctor said that the deceased agreed to do whatever was in Mary's best interests. Arrangements were made for a termination to take place at the Sunshine Hospital and that was done later that month.
49 On 22 November 2000 Mary saw Dr Zaky and expressed guilt for having terminated the pregnancy. Dr Zaky prescribed the contraceptive pill. On 4 December 2000, Dr Zaky diagnosed depression and prescribed Mrs Saad an anti-depressant. On 18 December 2000 Mrs Saad reported having social problems with her husband. On 27 December 2000 she reported having been to hospital for a urinary tract infection. She complained of insomnia, and was prescribed Mogadon 5mg tablets, which are a sedative. On 9 February 2001 Mary Saad was prescribed Temazepam 10mg tablets in a packet of 25. Temazepam is a sleeping tablet. On 14 February 2001 Mary Saad told Dr Zaky that she had not filled the script for Temazepam, and Dr Zaky prescribed Normison 10mg tablets in a packet of 25, which is also a sleeping tablet. Mrs Saad was advised to take one or two tablets at night. On 16 February 2001 Mary Saad told Dr Zaky that the Normison was not working, and requested Temazepam capsules. She told Dr Zaky that she wanted to be asleep when her husband came home because she did not want to have anything to do with him in bed. When Mrs Saad was complaining about the Normison not working, she asked whether there was anything stronger she could be given in injection form that she could take with her, and Dr Zaky told her that she could not give anything like that. When Mrs Saad spoke to her doctor about her husband, Dr Zaky told her that if she treated him really well he might return the sentiment. Mrs Saad said to her that her brother in law on occasions told her husband to treat his wife better.
50 I have already referred to the forensic evidence which established that the deceased had been sedated with a substantial quantity of Diazepam and Temazepam before the car was set alight. Dr David Leo Ranson, a forensic pathologist and the deputy director of the Victorian Institute of Forensic Medicine, gave evidence that he attended the scene at Majorca Street at 9.00am on 18 February 2001. He confirmed the death of the occupant of the car. He inspected the body and observed extensive loss of skin and the underlying soft tissue over many regions of the body. The peripheral areas of the body were largely burnt away. There was extensive heat damage to the skull, the skin over the head was almost completely absent and some portions of the skull had been charred away. He placed some cyanoacrylate gules on the teeth to preserve them, and packed and protected the head in preparation for transportation of the body. He identified a number of items around the body, including a ring, and pointed them out to police. Arrangements were made to transport the vehicle to the Coronial Services Centre with the body inside. Once at the Coronial Services Centre, the body was removed from the vehicle.
51 Dr Ranson performed an autopsy on the body at 1.34pm that day. He removed a watch from the body, which showed the time of 1.45. The deceased's stomach was intact and contained a large volume of food material. The stomach was heat affected and charred but was not ruptured. There were no perforations or defects to the bowel. Part of the surface of the stomach and underlying bowel had come through the abdominal wall, hence showing some burn damage. Dr Ranson took a number of blood samples from the cavity of the body. He was unable to obtain blood from the veins due to the severe heat effects.
52 At a result of his post-mortem examination Dr Ranson concluded that there were no signs of significant ante-mortem trauma. He could not exclude the possibility of there being some sort of trauma because he could not examine the skin or subcutaneous tissues, but said there were no features in the structures that remained to suggest there had been any sufficient injury prior to the fire to leave damage. The effects of fire and heat on the body could adequately explain the major trauma to the body. The presence of soot in the periphery of the airways of the lungs, together with froth and mousse like material in the airways, indicated that the deceased was breathing for some time in the early stages of the fire. The areas of greatest sparing of the body from the heat were in the region of the lower parts of the legs, feet, buttocks and lower back, consistent with the deceased being in a seated position during the fire. He considered that the cause of death was the effects of fire in a man with raised levels of sedative drugs.
53 Dr Ranson said drugs such as Diazepam and Temazepam are absorbed across the wall of the bowel into the blood stream, then get moved around the body in the bloodstream and are broken down by organs such as the liver before being excreted. There is usually some absorption in the stomach but the majority of drugs tend to get absorbed in the small bowel.
54 In cross examination, Dr Ranson said that he observed a small drug vial and a ring in the car which he had pointed out to police. He agreed that, as a pathologist, he was aware of people having committed suicide by taking an overdose of drugs such as Temazepam or Diazepam. He had also come across cases where people had committed suicide in motor vehicles by burning themselves to death, in some cases by pouring petrol on themselves and setting the petrol alight. He had previously come across a situation where a person had taken sedating drugs before committing suicide in a motor vehicle. In re-examination, however, Dr Ranson said that he would not have seen more than one or two suicide cases involving fire in a motor vehicle. He had seen a number of cases involving people who had been burnt in motor vehicles in a number of different circumstances. The position in which the deceased was found was not uncommon, in the sense that he was still roughly in a seated position but had fallen back into the area between the seats due to the effects of heat on the muscles of the body, causing the muscles to contract. He said that some people who set fire to themselves have been known to move around in the early stages of the fire.
55 Professor Olaf Heino Drummer was the Head of Scientific Services at the Victorian Institute of Forensic Medicine and Professor of Forensic Medicine at Monash University. He gave evidence that he had reviewed a toxicology report prepared by Dr McIntyre who performed tests in relation to samples obtained during the autopsy of the deceased. Analysis of the blood sample taken from the deceased revealed a carbon monoxide concentration of 25 percent, a hydrogen cyanide concentration of 2 millilitres per litre, a Temazepam concentration of 9.8 millilitres per litre, a Diazepam concentration of 1.5 millilitres per litre, a Nordiazepam concentration of 0.1 milligrams per litre and a Celebrex concentration of 40 milligrams per litre. In the liver was found Temazepam at a concentration of 2.2 milligrams per kilogram and traces of Nordiazepam. Nordiazepam is a by-product of Diazepam or Valium as it is commonly known. Both Diazepam and Temazepam are minor tranquillisers or sedative drugs, and Nordiazepam is also active pharmacologically as a sedative drug. The stomach contents contained approximately 30 milligrams of Temazepam and approximately 10 milligrams of Diazepam. Professor Drummer said Temazepam was a sleeping tablet and the usually prescribed dose would be one or two 10mg capsules. In most individuals, Temazepam would start to come into effect within 15 minutes. If more tablets are consumed, both the speed of the onset of sleepiness and the severity of that sedation becomes greater. Professor Drummer said that Diazepam is also a sedative drug, but is usually prescribed to treat anxiety rather than sleep problems. Its effects are longer acting, with one tablet having effects that last for one to three days. Its effects are usually felt within 30 minutes of taking the tablet, depending on the amount consumed. Diazepam can be broken up and disguised in food or a drink containing a strong flavour. Celebrex is an anti-inflammatory drug, commonly used in the treatment of arthritic type conditions. If used in large amounts, it can have a sedative effect. One tablet may remain in the body for one to two days.
56 Professor Drummer said that, due to the blood samples being taken from the deceased's abdominal cavity, it was quite likely the concentrations were affected by the various post-mortem processes. He could not discount the fact that there had been some movement of drug from the small bowel into the blood after death. He said it was not possible to calculate with any degree of certainty the level of drug at the time of death. The sample taken from the liver was more reliable, and may well represent the actual concentration in the liver at the time of death, which revealed that the deceased had those drugs in his body in reasonable amounts at the time of death. Based on the results of the examination of the liver sample, Professor Drummer opined that most people would be sedated quite significantly with that amount of Temazepam in their blood. He could not say whether they would be conscious, but said they would be very sedated and falling asleep. He explained that even one Temazepam tablet would impair a person's ability to drive a motor vehicle safely.
57 In cross examination Professor Drummer said the residual taste of both Temazepam and Diazepam was slightly bitter. Both drugs are poorly water soluble in tablet form. The capsules, however, contain a viscous liquid in which the drug has been dissolved. Analysis of the deceased's stomach contents found drugs that were not yet absorbed, meaning they must have been taken relatively recently. Professor Drummer said that he would expect those tablets to be almost completely absorbed within an hour of use but it could take longer if the person was unconscious or sick.
58 In re-examination Professor Drummer said that Celebrex had no taste associated with it. Temazepam capsules contained a gel like fluid, which is more soluble than a tablet and could be disguised in a fruit juice. The tablet form could be ground into a powder, but this would not change its solubility. A ground powder, however, could be disguised in an orange juice, due to the colour of the orange juice and the bits of orange in the juice. The powder would be more soluble in hot water, but would eventually sediment out as the tea or coffee cooled down. The powder could be added to food.
59 Further evidence given by Dr Zaky established that shortly after the deceased's death, Mary Saad contacted Dr Zaky and asked her not to tell police that she had prescribed the Temazepam and Diazepam. Dr Zaky said that on Sunday 18 February 2001 Dr Zaky attended the Coptic Church in Bulleen, where she learned of the death of the deceased. After hearing the news, Dr Zaky received a telephone call at the Box Hill clinic from Mary Saad. Mary Saad told Dr Zaky that if the police came to the St Albans clinic, Dr Zaky was not to give them her file, especially not the last few pages which contained the evidence of Dr Zaky's prescription of sleeping pills for Mary Saad. Mrs Saad said that if Dr Zaky did show the police, Mrs Saad and her children would be in trouble. The conversation was in Arabic. Dr Zaky further testified that the following day she attended her St Albans clinic. The police had obtained a copy of the medical file with Mary Saad's written authority. About one week later, Mary Saad telephoned Dr Zaky at the Box Hill clinic, and asked whether Dr Zaky had given the police her medical file. Some days later, Mrs Saad telephoned Dr Zaky at the St Albans clinic about her file again, and Dr Zaky told her that she gave the medical file to the police because Mrs Saad had consented to that. Later that evening, Mrs Saad telephoned Dr Zaky at home and inquired about her file again. Dr Zaky told her the file was with the police and never to telephone her at home again.
60 Dr Zaky was shown a number of pieces of burnt paper found in the deceased's car (Exhibit MF12), which she identified as coming from a church magazine. She said that there was a stack of magazines at the door of their church containing the liturgy for the day and social news.
61 Peter Andrew Rains was a sergeant of police, and at the time of the investigation was a Detective Senior Constable stationed at the Arson Squad. He attended Majorca Street, St Albans at 4.20am on 18 February 2001, where he inspected the scene and made inquiries of a number of witnesses. On Wednesday 21 February 2001 he attended the Keilor Downs Police Station in the company of Sergeant Millett, where he obtained a statement from the applicant Hany Saad with the assistance of an interpreter, Elizabeth Costabir. At the conclusion of the interview, the interpreter read the statement to Hany Saad in Arabic, and Mr Saad signed the statement. The statement was tendered as Exhibit M. At 9.30am on 11 December 2001 Sergeant Rains and other police officers executed a search warrant at 27 Willow Avenue, St Albans. At 9.50am he left those premises, and accompanied the applicant Hany Saad to the Homicide Squad Offices in St Kilda Road, where a video taped record of interview was conducted with the assistance of an Arabic interpreter, Mary Bedewi. At 6.55am on 6 June 2002 Mr Rains attended 27 Willow Avenue, St Albans with a policewoman, and again conveyed the applicant Hany Saad to the Homicide Squad Offices for a further interview.
62 Paul Michael Millett was a Detective Sergeant of police, who at the time of this offence was stationed at the Arson Squad. At 3.00am on 18 February 2001 he was contacted by the Police Communications Centre in relation to the fatal fire in Majorca Street, St Albans. He contacted Detective Senior Constable Rains, and attended the scene at approximately 4.15am. There were already other police in attendance. At 9.00am Dr Ranson attended the scene. The vehicle containing the body was subsequently conveyed to the Victorian Institute of Forensic Medicine, and then the car was escorted to the Victorian Forensic Science Centre. Mr Millett obtained a number of items that had been located on the body of the deceased, and a wallet found in the vehicle. On 20 February 2001 Detective Sergeant Millett attended the deceased's workplace at 35 Collins Street, Melbourne. He searched the deceased's work station and observed a blister packet of Celebrex tablets, which had only one tablet missing.
63 On 21 February 2001 he attended 27 Willow Avenue, St Albans, and spoke to the applicant Mary Saad. She indicated she was unwell and not able to make a statement at that time, but signed a release for her medical records to be obtained. On 1 March 2001 Detective Sergeant Millett was present when a statement was obtained from Mary Saad. While the statement was being obtained, Mr Millett attended 27 Willow Avenue with Samir Ghobrial, who was the brother in law of the deceased. With Mr Ghobrial's permission, Mr Millet examined the garage at the premises, wherein he located a petrol container approximately 20 litres in size, which was less than one quarter full. On 11 December 2001 Mr Millett again attended 27 Willow Avenue in company with other police officers, and served a copy of a search warrant on the applicant Mary Saad. Mary Saad was conveyed to the Homicide Squad offices in St Kilda Road, where a video recorded interview was conducted with the assistance of an Arabic interpreter. He said that following the interview with Mary Saad, police conducted a further interview with the applicant Hany Saad. After their respective interviews with police, both applicants were returned to their home at 27 Willow Avenue.
64 On 6 June 2002 at 6.55am Detective Sergeant Millett attended 27 Willow Avenue, St Albans, with other detectives and an interpreter, Vera Oujaimi. The applicants Mary and Hany Saad were cautioned and arrested for murder, then separately conveyed to the St Kilda Road Police Complex. Mary Saad was further interviewed by police, and exercised her right to make no comment responses on legal advice. Hany Saad was interviewed by police. Mr Millett produced a number of items that were recovered from the vehicle, including pieces of paper, small pieces of glass believed to have come from a perfume bottle, the remains of three glass bottles and the metal tip of a disposable cigarette lighter.
65 Further evidence established that Mary Saad and Hany Saad continued to be lovers after the deceased's death. Detective Sergeant Millett said that a listening device was placed in the home at 27 Willow Avenue pursuant to a warrant during one of the visits. In cross examination by counsel for the applicant Mary Saad, Mr Millett said that telephone intercepts recorded every conversation in July, August and December of 2001 and January 2002. Many of the calls had to be translated from Arabic into English. There were in excess of 2,800 calls. Some of the conversations were between Hany and Mary Saad. Mr Millett said that in August of 2001 Mary and Hany Saad spoke to each other affectionately. They both said, "I love you" to one another, called one another "darling" and blew kisses on the telephone. Mr Millett extracted nine telephone calls from all of the phone calls in which it was evident that they were having a relationship. But there were no phone calls in which either Mary or Hany Saad had said anything directly relating to the commission of the offence.
66 In re-examination, Detective Sergeant Millett was asked about one telephone conversation between Mary and Hany Saad on 6 August 2001, wherein Hany said, "Yes my darling" and "I miss you", and at one stage Mary said: "Oh darling". In a telephone conversation on 8 August 2001 commencing at 9.53am Hany whispered: "I love you" to Mary Saad, and she answered: "Me too". There were also kissing noises during the call. Later in that call Mary said something to the effect of: "It's my heart's fault". During a telephone conversation on 9 August 2001 Hany said laughing: "I love you too much Mary". He later said: "I'm telling you that I love you". During a call at 3.55pm on 9 August 2001 Mary said: "I'm going to sleep in the lounge today" and Hany said: "Okay, and I will sleep next to you". Mary then said: "Okay", and Hany said: "Okay, and I will sleep beside you". Later in the same conversation, Hany said: "Okay darling I love you", then he commenced to sing something to the effect of: "I love you and when you leave I long for you, I feel that my eyes are searching for you". The conversation concluded with Mary saying: "Okay darling", and kissing noises being made.
67 In a conversation on 10 August 2001 Hany said: "okay darling" and "I love you", then concluded by saying: "Okay, bye darling". During a conversation on 20 August 2001 Mary said: "I love you", then there was the sound of a kiss. During a conversation on 21 August 2001 there was further blowing of kisses, Mary said: "I miss you" and Hany said: "Bye darling".
68 Mr Millett said that the conversations recorded while the listening device was in operation were largely unintelligible due to background noise including the television. Mr Millett sought to have some of these recorded conversations enhanced, but was told it could not be done due to the noise.
69 Finally, John Terrance Marshall was called on behalf of the applicant Hany Saad. Mr Marshall was a consulting forensic engineer with experience in the investigation of fires and explosions. He gave evidence of having drawn several conclusions about the fire, based on the photographs and several witness statements. He said however that he never looked at the car. He concluded that there had been a severe fire starting within the passenger cabin area of the car, rather than in the boot of the car. He said there was evidence of a flashover fire, involving all of the flammable or combustible materials within the cabin compartment. He opined the fire started in the front seats, but he was unable to say whether it started in the front driver's seat or the passenger seat. He said there was more severe damage on the passenger seat, suggesting the fire may have started on that side, although it was also possible that the driver's seat was protected by the deceased's body. Mr Marshall said that he was aware that a disposable cigarette lighter was found in the vehicle. He said that he conducted a number of tests in relation to disposable lighters manufactured by Bic, Cricket, Scribe and Tokia. Mr Marshall found that it took an average of 3.3 milliseconds for the trigger of the cigarette lighters to move from the depressed (down) to the closed (up) position following the removal of a person's finger from the trigger. He said the flame would most likely extinguish slightly faster than that. He also conducted some tests to establish whether, if the trigger mechanism were held down by something like a rubber band, a lighter could be thrown and remain alight. He found that in each case, the flame extinguished almost as soon as the lighter was thrown, leading him to conclude that it is the movement of the lighter relative to the still air that causes the flame to extinguish. Mr Marshall tendered a lighter that he believed was similar to the remnants of the lighter found in the deceased's car (Exhibit U). He explained that he had conducted a series of tests with Exhibit U, involving holding the trigger down with a rubber band and dropping the lighter onto the ground. In 39 of the tests, the flame extinguished before the lighter hit the ground. One occasion, with the flame adjusted to its highest possible position, the lighter remained alight. On the basis of those tests, Mr Marshall said that he had formed the view that the lighter was unlikely to be an available ignition source.
70 Mr Marshall said that petrol vapour will ignite if it is between 2 and 8 per cent of the air. With a greater deal of vapour one would expect a more rapidly progressing fire. He said that the sound of vapour igniting if the concentration is at the low end is a sharp bang, and if the concentration is at the high end it sounds like a whoosh. In cross examination Mr Marshall agreed that the bang could have been caused by an exploding tyre or window exploding as well as by petrol ignition and he agreed that the igniting of the vapour could have been done by a match or a lit piece of paper.
The applicant's contentions
71 As can be seen the Crown's case was based on a large number of pieces of circumstantial evidence. They included the fact that the fire was caused by using an accelerant in the form of petrol; that the car doors were probably locked but there was a 5 or 6 cm gap at the top of the driver's window; that the deceased was found with his seat belt on; that there was no evidence of the deceased suffering from depression or some form of suicide ideation; that Celebrex, Diazepam and Temazepam had been ingested by the deceased; that a near empty 20 litre fuel container had been found in the deceased's garage; that Mary Saad had access to drugs; that there was hostility between Mary Saad and the deceased; the fact that the Dr Bar-Zeev's assessment of a urinary tract infection was dependent upon Mary Saad's own report of her symptoms; that Mary and Hany Saad had had time to go back to the car once they had checked with the triage nurse or alternatively that Hany Saad never went into the hospital until after setting fire to the car; and the fact that Hany Saad was seen to be pacing up and down inside the hospital. The Crown also relied on consciousness of guilt said to be evidenced by the fact that Hany Saad denied to police that he had a sexual relationship with Mary Saad; consciousness of guilt said to be evidenced by the fact that he told police falsely that he had slept for about two hours on a chair in the hospital; and consciousness of guilt said to be evidenced by the fact that Hany Saad and Mary Saad lied when they said that they had tried to phone home from the hospital and that no one had answered.
72 The applicants contend that none of those circumstances is sufficient to exclude a reasonable doubt as to the guilt of the applicants. As they would have it the fact that the fire was caused by accelerant does not provide evidence that Hany Saad started the fire. Of itself, they say, the use of accelerant is equally consistent with suicide. The same it is submitted is true of the fact that there was a 5 or 6cm gap left open at the top of the driver's window. In the applicants' contention that cannot be regarded as positive evidence of how the fire started - they say it would be mere speculation to reason from the gap at the top of the window to a conclusion that the fire was ignited by a source of flame introduced at that point - and they argue that such a conclusion would be contrary to Mr Marshall's evidence that throwing the lighter in at that point would not ignite the petrol and in any event it says nothing about the identity of whoever it was who threw it in. Equally, it is said, the fact that the deceased was found wearing his seat belt is in no way inconsistent with suicide. According to the applicants it is not to the point that members of the fire brigade had not before seen a case of self immolation in which the victim wore his or her seat belt. More generally, as they point out, there was evidence from Mr Kelleher of having come across situations in which people had committed suicide by self immolation in motor cars and from Dr Ranson of having come across cases in which people had committed suicide by pouring petrol over themselves inside cars after taking sedative drugs, and from Professor Drummer that forensically there was nothing necessarily inconsistent with death by suicide.
73 The applicants further submit that the ingestion of Celebrex, Diazepam and Temazepam was equally consistent with suicide as with homicide. The evidence, they submit, did not allow one to draw any absolute conclusions about the quantities of drugs ingested or the time that the drugs were ingested and it was not possible to draw any hard and fast conclusions as to whether the deceased was disabled by drugs from driving to the hospital. Moreover, according to the applicants, the assumption that the deceased was drugged before going to the hospital was an indispensable plank in the Crown case and it is submitted on that basis that the jury could not properly have convicted unless satisfied beyond reasonable doubt that the deceased was drugged at that time, which they could not properly have been.
74 The discovery of the 20 litre fuel can in the deceased's garage is said to be wholly unremarkable. The deceased had a lawn and a motor mower, and so it is submitted that one should expect to find a fuel can. The fact that Mary Saad had access to drugs is, it is said, equally unremarkable. After all, she and the deceased lived in the same house. It follows, say the applicants, that the deceased had the same access to her drugs as she did, and the deceased had been prescribed Celebrex himself for back pain and the fact that he took it was confirmed by the fact that some was found at his work station when searched after his death. The fact that there was hostility between the deceased and Mary Saad is said to be just as consistent with suicide as with homicide and the fact that Dr Bar-Zeev's diagnosis was dependent largely on Mary Saad's report did not mean that it was not accurate or that the report was false.
75 Turning then to Hany Saad's movements, the applicants submit that there were a number of holes in the Crown contention that the applicants had sufficient time to go back to the car and set it alight before Mary Saad was examined by the physician, including that they would not have known how much time they had to go back and do the job before Mary Saad was called in for examination; they would not have known that the security cameras at the hospital were not operating; no one can say where either of them was at a given time; if Hany Saad drove the car to the waiting area let out Mary Saad at approximately 1.08am and then drove the car to where he set it alight, one would have expected the car to have been torched at closer to 1.08am than 1.45am as the forensic and other evidence suggested; and it was extremely odd that Hany Saad would have selected a position which was relatively well lit from the hospital and otherwise likely to be seen by passers by. Furthermore, there was positive evidence that Mary Saad spoke to the triage nurse at 1.08am and probably went into the emergency area less than half an hour later, which is well prior to the fire at 1.45am, and given the evidence that she was treated in "less than an hour or so, maybe half an hour", the discharge time may have been about 2.38am. Further it is said, there is no doubt that Hany Saad was in the emergency area and the only way he could have got in there was with Mary Saad when the doctor let her in - because the triage administrator did not let him in - and although he was said to be pacing up and down anxiously, there was no evidence that Mary Saad was anxious. In those circumstances, it is submitted, it is surely highly unlikely that Hany Saad had just killed the deceased pursuant to an agreement or arrangement with Mary Saad to do so.
76 Finally, according to the applicants, the so-called lies said to evidence consciousness of guilt take the matter no further. In their submission it is only to be expected that Hany Saad would lie about his sexual relationship with his brother's wife. He had every reason to be ashamed of it, especially given his culture and religion, and every reason to wish to keep it secret from his own wife and other members of his family.
77 The fact that he told police that he was asleep for two hours in the chair at the hospital it is said may well be no more than poor recollection or problems in interpretation. Hany Saad was not interviewed by police until more than 10 months after the death of the deceased and according to the applicants may well have forgotten the period for which he went to sleep in the chair or it may just be that the interpreter misinterpreted what he said.
78 The so-called lie about calling home from the hospital is characterised as being even more problematic. Although Hany Saad was with Mary Saad when she affected to make the call from the hospital, there was nothing necessarily to show that he knew whom she called or what answer she received, and in any event it is said if Hany Saad had really been attempting to create the impression that he was surprised that the deceased was not at home, he would surely have got the triage administrator to make the call, thereby putting beyond doubt the fact that it had been made.
Verdict not unsafe and unsatisfactory
79 I do not find the applicants' submissions persuasive. In my judgment it was open to the jury, acting reasonably and appreciating the burden and standard of proof, to convict both of the applicants on the basis of that evidence.
80 It is true that none of the factors relied upon by the Crown was capable in itself of satisfying the jury beyond reasonable doubt that the applicants had entered into a combination to murder the deceased which Hany Saad carried out by dousing the interior of the car with petrol and setting it alight. But it was not necessary that the jury be satisfied beyond reasonable doubt about any one of those factors. All that was required was that when all of those factors were taken together they were capable of satisfying and did satisfy the jury beyond reasonable doubt that the applicants were guilty. The point is one of basic importance in any case in which the Crown relies on circumstantial evidence in order to prove its case. As Dawson, J. put it in Shepherd[7]: