R v Zeng

District Court of NSW|2020-12-07

Judgment ON VERDICT

On 18 November 2020 the accused pleaded not guilty to one count on the Indictment: "Count 1 - On 22 April 2019 at Auburn in the State of New South Wales, dishonestly, with a view to making a gain for himself, did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire."
This is an offence pursuant to s 197(1)(b) of the Crimes Act 1900. Both the Crown and the accused person agreed that the accused be tried by a judge alone, and an order was made pursuant to s 132(2) of the Criminal Procedure Act 1986 for the trial to proceed by way of judge alone. Upon arraignment, the accused pleaded not guilty to the charge, and this judgment records my verdict and my reasons for reaching that verdict.
The elements of the offence are as follows: 1. On 22 April 2019 at Auburn New South Wales, 2. The accused dishonestly, 3. With a view to making a gain for himself, 4. Did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, 5. By means of fire.
The Crown bears the onus of proving each of the elements beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.

Evidence of Jonathan Mealor

Mr Mealor was a fire officer with the NSW fire brigade and arrived at the scene of the fire at 164 Adderley Street West Auburn at 6.47pm. He observed large volumes of smoke in the area. Fire officers from Silverwater were already on the site trying to open the premises which were locked. Mr Mealor looked through an office window and gained entry to the premises, onto a walkway on the ground floor, raised approximately one to two metres above the floor. From that walkway he and another fire officer were able to fight the fire with the use of a fire hose.
Mr Mealor gave evidence that he observed, upon entry to the building, six different seats of fire, two of which were located on the western side of the building and were larger than the other four. When asked what made him think there were five or six different fires, he said: "A: There was just large areas in between the seats of fire that, that weren't burning, so I would just presume that whatever was in the - whatever was in between wasn't on fire."
Because of the smoke, Mr Mealor was wearing a mask and using a thermal imaging camera to identify the seats of fire so as to distribute water to them. He gave evidence that he did not see any firefighters touching any electricity box within the warehouse. The fires had flames rising to three to four metres and the two larger fires had flames higher than that.
Mr Mealor also observed bricks on the floor of the premises which had fallen from the walls. He prepared a report the following day.
A diagram drawn by Mr Mealor of the premises became Ex B.
In cross-examination, Mr Mealor gave evidence that once inside the premises, he was tasked with what was called "fire attack". He was unable to say whether the bricks falling onto the floor was caused by the heat of the fire, but by the time he arrived, there were bricks on the floor. There was a great deal of smoke in the warehouse but visibility was "not so bad". He was asked about the six seats of fire as follows: "Q: Could I equally describe them as simply six points within the warehouse where you saw flames? A: Well we describe them as seats of fire and the reason we use that term seats, is because it's six separate fires that we have to put out. If the whole warehouse was on fire, then it would be different. So because there's a gap between each of the fires, and if I was to be on the radio, then I would say, 'we have six separate seats of fire'. Q: But it could equally be described as there being six locations where flammable material was on fire? A: Six locations where flammable material was on fire. I guess you could describe it that way, you could."
Mr Mealor was asked about the two larger fires which were marked "F3" and "F4" on Ex B. He could not see what material or items were burning but did observe a forklift within the building in the areas of the fires marked "F1" and "F2".
He gave evidence that standard practice was to isolate the power source at a fire scene, but that was not his role here. He did not, in fact, observe a power box within the warehouse.
Mr Mealor agreed that in his statement he had said that he could not see if there was any fuel between the six separate fires and gave evidence that it was entirely possible the warehouse was full of material but he could not see it. He could not offer an opinion as to whether the fires at "F3" and "F4" started before the four other fires, but agreed that a larger floor load could make a larger fire. He gave further evidence that he did not notice any damage to the roof structure of the warehouse whilst he was in the building.
There was no re-examination.

Evidence of Mr Wayne Schweickle

Mr Schweickle was a fire investigating officer with Fire and Rescue NSW and he prepared a report dated 8 November 2019, which became Ex C. There was no issue as to his qualifications as a fire investigator. His report concluded: "On the balance of probabilities, using my experience as fire fighter and fire investigator, I have formed a hypothesis that the most probable circumstances of this fire are that there were multiple points of ignition."
Annexed to his report were 38 photographs of the premises, together with an overlay map with 10 locations within the premises numerically marked.
Mr Schweickle gave evidence concerning various parts of the premises including the roof, which prior to the fire, had affixed a number of "whirlybird" vents which he opined had the effect of slowing down the spread of smoke and hot gases, thereby inhibiting the natural spread of the fire.
The following hypothetical was put to Mr Schweickle: "Q. Can I put this hypothetical to you, I ask you to comment on its plausibility or otherwise, the - if there was a single point of ignition in this fire, what are the chances of that happening between having a regard to its 6.27pm the foot - it was where the footage you observed was taking place and the flames and the smoke are burning out of the place. And a single point fire having been ignited about four or five minutes earlier in that factory? A. The, the, the size of the fire that I saw on the footage would not be consistent with a single point of origin. But I have to - I - I'd also have to consider the type and arrangement of fuel in that area. Were there any accelerants used in that area but on a normal or a, a - just a, a small incipient flame or some heat source applied to something, at, at one point to have a fire of that significance, I'd find that quite unusual. Q. Unusual, how would you describe it apart from usual? A. Well we have - a fire starts small and it goes through various stages of growth. So it takes time for that to grow and to, to build up. It's, it's - and when I use the word "previously accelerated" that's use of maybe an accelerant like - something like petrol or, or gas or something that's going to accelerate the speed of the fire. The growth of that - that fire. As I say, it would have to depend on the fuel load but the - it just seems to have - for my understanding, that's quite a significant fire quite quick. Q. If it were the case that there'd been a fire which the fire had originated as a result of and from a defect in a forklift charging system, you know where the forklift was in the fire? A. Yes, I knew where the fire - forklift was and the charger, yes. Q. If it had started that way, what would you expect of the timeframe? A. I'd expect a slow progressive fire to build up. It would take some time for - if the fire was in the forklift or the charger it would then have to ignite some other combustible material nearby it or around it then that item would have to then grow into a larger fire and then ignite another compressive - combustible material and that would take time. It's not - doesn't become a, a raging inferno within the failure of one item unless of course it was accelerated by some means but I have no information as to that. Q. If there was no - assume there was no accelerant, petrol or otherwise, what do you say about-- A. It would take time. Q. When - you say "time"-- A. Yes. Q. What about four minutes? A. No, I wouldn't expect that. That - the fire of that significance to be there within four minutes, no."
Mr Schweickle was also asked to assume, accepting Mr Mealor's evidence, that there were six separate seats of fire. He gave the following evidence: "Q. I want you to assume there's evidence from a firefighter of the name of Mr Mealor, that there appeared to be, from his observation, six separate fires burning or six different seats of a fire. Accepting his observations as accurate, and he says also, because of the poor visibility, he can't see what's on the ground but he sees what appears to be separate structures, six separate discrete fires. What bearing does that have, if any, on your assessment, in your opinions in the report? A. Considering that the greatest area of damage was in that far corner which I've identified near location 5, that, that large burning there wouldn't have been able to vent and the only form of heat transfer from that point is radiant heat. Because of the six separate seats of fire that Mr Mealor saw and from my observations to have separate areas of burning, that the time frame wouldn't allow for that fire to ignite those other parcels of fuel. So I didn't see a connection from one point of origin to those other points of origin. In my opinion, they were all separate seats of fire. And to my earlier part that I couldn't identify any evidence of drop down from above within the roof area-- Q. Which would start - so individual-- A. That could easily start individual seats of fire, yes."
In cross-examination, Mr Schweickle conceded that he had visited the premises a number of times following the fire, but for safety reasons, had not been able to go deeply into the premises. He was shown a plan of the premises which became Ex 1 for the purpose of comparison with his overlay plan of the premises (Ex C, p 32). He was asked: "Q: Is it not possible that the fire started in the area hatched in red on Ex 1, that's where there is most damage and through some form of convection, conduction, radiation, it moved to other areas? A: In my opinion, no."
Mr Schweickle then clarified that whereas in Ex 1 the greatest area of damage was in virtually half of the premises, in his opinion, the greatest area of damage was in the south-western corner, identified by the number 5 on his overlay plan.
Mr Schweickle was asked about the dashcam footage in Ex A and the observations made by the occupants of the vehicle travelling past the premises. He gave evidence that the skylights on the roof failed first, allowing the fire, comprised of smoke, hot gases and flames, to vent and thereafter the roof would crack and fail under its own weight. He identified the skylights on the roof by reference to a photo on page 32 of his report. He was asked: "Q: So it is indeed possible if there was a, let's call a decent fire, at the area of the forklift/charger/No. 5 in the overlay where there's a, say, a big pile of cardboard packaging, if there was a fairly intense fire there, it's quite possible that before any of the fire collapsed, all of the 12, if we make it 12, skylights may indeed have perished? A: It depends. It depends on the fuel load in that area. It depends on the arrangement of that fuel load. It depends on how long it's been burning for. But, but there are so many variables that you, your guessing, basically, yes."
Mr Schweickle agreed that it was difficult to be exact as to the drop-down material that fell into this fire from the roof. He was unable to estimate the maximum heat inside the warehouse at the point it was most on fire, but it was not thousands of degrees.
Mr Schweickle was shown CCTV footage of the premises on 18 April 2019, several days before the fire. In it he was able to identify pallet racking, some machinery, and various pallets which appeared to have cardboard boxes stacked on them. He was able to identify on the pallet racking a fairly decent fire load comprised of stacked cardboard boxes.
Mr Schweickle was also cross-examined on the prospect of failure in the connector between the forklift and its charger as a cause for the fire. For that to happen, he gave the following evidence: "A. Sparking would have to be continuous. That sparking would then have to ignite a combustible and that combustible would have to burn and we'd start that process. Q. Do you say there is no possibility that that may have been an initial way in which this fire started? A. What I think from my evidence earlier is that the timeline for that didn't work in with what the Crown had put to me. Q. The Crown put to you that the fire started about four minutes before flames were seen? A. Yes. Q. Let's assume that an electrical fire may have started before that time at the back of the warehouse, right, igniting some cardboard packaging. Would it not be possible then for that back part of the factory to quickly get itself a decent fire going and flames coming through the whirligigs or the skylights? A. For your scenario or your hypothesis, you'd have an ignition point. The fire would grow and spread and spread into the fuel load. If there was sufficient heat to ignite a nearby fuel load that would grow but the gases, as I said earlier, and smoke that come off would go up, hit the highest point, vent out through the whirlybirds, that would be drawing the other air and the smoke out of those whirlybirds. Q. Right. A. Those skylights, which have a significant play, would fail and then the fire is able to vent and go outwards and the fire is the products of combustion being the smoke and hot gases and the flames themselves. Q. Are you able to give us your best estimate as to how long that would take, in other words from the point when there is spark, an electrical sparking within the warehouse, to a point where an observer on the outside could see flames? A. I'm sorry, not without knowing the exact layout of the - as I said earlier, I don't know what's behind that because I can't clearly tell you - that doesn't clearly tell me what the fuel load is in that area. Q. Understood. A. That's why I can't tell you. Q. Could it have been minutes from sparking to visible flames? A. Through the roof? Q. Yes. A. That was seen on the dashcam footage? Q. Yes. A. In my opinion, no. Q. Can you give me any idea of time? A. Again, it's-- Q. All you can say is it would take more than a few minutes? A. Yes."
Mr Schweickle was asked about damage he observed being burnt debris on the floor below electrical boards situated at point 8 on his overlay map. He gave evidence that it was quite possibly a seat of a fire, given the burnt materials on the floor.
In respect of the hardwood pallets within the premises, Mr Schweickle gave evidence that they had a high ignition temperature and that a sustained heat source would be required to ignite the pallets.
Mr Schweickle was also asked about whether a hardwood pallet could be ignited by a firelighter, and he gave evidence that there would be a slow rate of spread of fire, but it would burn itself out, leaving a burn mark. He was also asked about the accelerant detection canine used by police investigators which had not identified any accelerant. He was unaware whether the dog was trained on firelighters and gave evidence that what was looked for was any accelerant which had not been consumed by the fire. He was asked: "Q: So it's unlikely that that type of behaviour took place if this fire had been deliberately lit? A: Well it - if, if it had been deliberately lit using accelerant, the accelerant has been consumed."
Mr Schweickle was asked whether he was aware, prior to authorising his report, that it was the police's view that the fire had been deliberately lit. He conceded that he was aware that the police were looking at that as a possibility.
Mr Schweickle was also cross-examined on the brick walls which had collapsed into the premises during the fire. He identified that they were structurally unsound, in that they had not been properly supported with metal ties. He did not agree that when the bricks fell into the premises they were hot enough to ignite the cardboard material, but was not qualified to give a further opinion.
Mr Schweickle acknowledged damage to the north-eastern part of the roof structure where girders were bent in a number of places. Whilst he had no indication whether the skylights were comprised of polycarbonate or plastic, he agreed there was a possibility that when the material melted it had been dropped down onto the warehouse floor. He disagreed, however, that drop‑down from the skylights occurred onto the pile of pallets shown in photograph No. 17, nor could the bricks that fell from the wall have been hot enough to ignite a pile of pallets.
Mr Schweickle conceded there was a possibility that radiant heat from the intense fire may have ignited cardboard placed on the metal racking.
Mr Schweickle was also asked about the charring of the two wooden railings on the balustrade on the walkway situated on the ground floor of the premises. He did not concede that the charring was caused by radiant heat from the fire. Had cardboard boxes been on adjacent pallets and had they been set alight, they would have given off sufficient heat to cause the railing to catch alight on its own.
Mr Schweickle was asked about damage, shown in photographs on page 22 of his report, to the electrical box in the factory as follows: "Q. What's your opinion as to how that damage occurred? A. Well, there was obviously, because of the burnt pattern on the wall above the shelf to the right, and also because of the debris that's been burnt on the floor just in front of it, and you've got the heat from the other points of origin, it's, the electrical box is caught alight."
He conceded that there were remnants of a fire underneath or near the electrical box on the floor, but could not say whether that debris was caused by cardboard boxes burning or not.
In relation to the forklift and charger, Mr Schweickle was asked as follows: "Q. Ipso facto you don't think there was a fire or a major fire inside the charger, is that what you're saying? A. Yes. Basically if there was a fire inside the charger you'd expect that the paint being at the top of the flames would be burnt away. Q. But if you look at the photograph above it you can see that the internal componentry of the charger is essentially destroyed totally, is it not? A. Yes, sir, that's correct. Q. The photographs you took of the forklift although there's one at page 26 they start largely at page 28 and go onwards and you make some reference to a mat being removed? A. A rubber mat, yes. Q. Tell us about the mat if you could. A. It was just charred or had been destroyed or consumed on one side which is to me just a directional indicator that a heat source had come from that side. Q. Are you able to say whether that was the same side as the charger or not? A. From my recollection, yes. Q. I think you indicated that the charger although it's a free-standing unit was standing against the wall, was it not? A. Yes. I couldn't say it was hard against the wall, I didn't get close enough but it was up near the wall, yes. Q. And therefore the forklift would have been between the charger and the steel shelving? A. Sir, I think there was a photo earlier that showed the charger just in front of the forklift. Q. Go back to page 21 if you would. The top photo there, RPAS photo 4. that's the charger? A. Yes, sorry, I've got it now, yes. That's the charger and you can see that it's parallel with the tines of the forklift. Q. So the greater heat source would have been between the charger and the forklift? A. Not necessarily, no. Q. Well, why would the mat on that side be destroyed rather than the mat on the opposite side? A. My apologies, sir, you're referring to the damage to the mat? Q. Yes. A. Yes, the heat source would have come from that but when you said between the charger and the forklift the heat could have come from the front of the forklift down between the forklift and the charger and then headed in that way. Q. It could have? A. That's correct, sorry. Q. But the greater degree of heat was at some point between the charger and the forklift rather than on the other side of the charger-- A. That's correct."
Finally, Mr Schweickle gave the following evidence: "Q. Looking at the overview, the aerial if I can call it that, the heat that caused the damage to the mat of the forklift came from the charger side as opposed to the other side of the forklift? A. Yes, that's correct. Q. You say it might have come towards the forklift from perhaps your number 5? A. That's correct, yes. Q. Am I clear in saying perhaps that principal source of this major fire was in the area of the charger to about number 5 in that diagram? A. No. Q. Well it was certainly - that was the heat that caused the damage to the mat of the forklift true? A. The fire in that area has in my opinion caused the damage to the mat, yes."
In re-examination Mr Schweickle was asked: "Q. You were asked whether you agreed that a drop down might have led to that fire, a drop down from the whirlybirds might have led to that fire and you said you disagreed with that proposition. A. The drop down from the skylight? Q. Yes. A. And I disagree with it, yes. Q. Why is that? A. The - the location of the skylight was not directly above that point and I recall looking up specifically and I inspected that area and noticed that there was the silver underlying of a roof that's, that's insulation and there was no great damage in that area and there were - I could see nothing that could have dropped down onto the bin to start a fire in that area."

Evidence of Mr Mario Conti

Mr Conti is a qualified auto electrician and owner of Mars Forklifts. He gave evidence that his business sold a Nichiyu forklift to a company called Rainbow Sydney on 22 January 2019. The forklift was a 2004 model with 4,980 hours usage. It had been purchased by Mr Conti's business on 30 June 2018 and refurbished prior to its sale to Rainbow Sydney. Prior to its sale, it had a second hand battery installed. Pre-sale checks included checking the battery and charger and safety switches. Testing demonstrated there were no problems with either the forklift, the battery or the charger.
Mr Conti gave evidence that following the sale, a representative of Rainbow Sydney contacted his business about a fault with the bonnet latch. A technician attended the premises of Rainbow Sydney on 25 January 2019 and tested the unit. A further complaint was received on 17 April 2019 about the forklift making a loud noise. A technician went to the warehouse at Adderley Street West, Auburn, and established that the steer tyres were to blame for the noise.
Three photos of the burnt out forklift and charger became Ex D. Mr Conti gave evidence that it was unlikely the forklift was being charged, it appeared to be "about 2 metres, two and half metres away" from the charger, and the leads from the charger to the forklift battery were probably about "a metre, a metre and a half". In his opinion it was unlikely that they were connected at the time.
Mr Conti gave further evidence that when an electric forklift is charging, the battery on the forklift itself may get hot, but not the outside of the charger. The DC cables between the charger and battery may get slightly warm after 10 to 12 hours of charging. In his experience, he had never heard of or seen a battery catching fire. Mr Conti gave further evidence that a bad connection between the charging points between the battery may cause the connecting plug to overheat and melt together. That would be caused by a bad connection and would take hours of high amperage and bad connections.
Mr Conti gave evidence that a bad connection will cause a spark to arc and jump between points. He was asked: "Q. What would you say if someone was to say this? What's the possibility of a fire resulting from a forklift or charger or the points of charging in the first 10 minutes of charging? A. Virtually impossible." Q. What about if there's fuel around it? A. If there's fuel, you'd have to have a major fault with the charger, more on the AC side, because the DC side wouldn't have a chance to, to have any current or charge into it. So you'd have to have a major failure in the charger through the AC circuits, but to do that, you'd actually see the charger erupt into a ball of flames, but you, you got AC fuses on the charger and DC fuses on the charger internally. Q. The fuses, the purpose of those is, what, to trip the - A. If there's an AC fault, those fuses are designed to blow. If it's a DC fault, those fuses are designed to blow."
Mr Conti was cross-examined on the three photographs in Ex D. He confirmed that it was unlikely the charger and forklift were connected because they were too far apart. He did not know if the cables on the forklift had been cut or had just melted away in the fire. He agreed he did not know whether either the charger or the forklift had been moved after the fire, prior to the photographs being taken.
Mr Conti gave evidence that if being charged, the Anderson plug would be sitting on the floor of the forklift. In the event of a short circuit, the two plugs would stick together and create a hot spot.
Mr Conti was also cross-examined about a major electrical fault in the actual charging cycle, causing a ball of flames. He gave the following evidence: "A. For, for you'd have a ball of flames, you'd have to have something that's fallen or dropped and a, and a dead short circuit internally. I've never seen it. It's probably the wrong terminology for me to use. The - all the faults I've seen on, on chargers, AC charges, have just blown the fuses." … Q. But if there is an electrical malfunction in the charger or from the AC current from the wall to the charger, that it may indeed result in flames in the charger, true? A. You have to talk to a charger expert. The old chargers with the transformers had a lot more electrical components exposed. This particular charger has a lot - is electronically controlled, so no transformer."

Evidence of Mr Gary Hodge

Mr Hodge had been employed in the forklift industry for 20 years and had worked in technical sales, product management and sales management. He gave evidence that Nichiyu forklifts were manufactured by a Japanese company and were imported without the battery or charger. Mr Hodge gave evidence that it would be unlikely a fire would start from an electric forklift if it was switched off, and in his experience he had never heard of or seen a fire starting from an electric forklift which was not operating at the time. When a forklift is turned off, it is completely isolated from the power source. When asked why he gave the following evidence: "A. There a battery disconnect button. When the forklift is turned off, the battery is isolated from the machine, it's no different to, say a power tool with a battery. If the battery is removed from it, it's completely inert."
In cross-examination, Mr Hodge was asked: "Q. When the battery is being charged, there is activity in the battery, is there not? A. The battery, yes, not the forklift. Q. No connection between the battery and forklift, but there is an electrical connection between battery and the charger and wall? A. Correct."
There was no re-examination.

Evidence of Mr Greg Lualhati

Mr Lualhati was employed by Stanbury and Company Pty Limited, and qualified in the trade of electronic services for a period of over 30 years. His employer manufactured forklift battery chargers and he gave evidence that the Anderson connection plugs used in charging forklift batteries may become damaged due to the cables being run over. A damaged plug may arc if the positive and negative wires come into contact, causing sparks.
Mr Lualhati gave evidence that the charger could also be damaged by a power surge, however, the charger was protected from damage by a fuse which would blow out and cut the circuit.
A circuit diagram drawn by Mr Lualhati became Ex E. He gave evidence that a bad connection between two Anderson plugs in the charging process would cause the plugs to get warm, but not so hot that it could cause a burn to a hand. He gave the following evidence about the charger itself: "Q. The charger itself, is there any mechanism or is there any part of the manufacture of the charger apart from the fuses which is designed to stop it burning? A. Okay. Inside the charger, we have this thing called a thermal‑protection circuit. What it does with the charger, if the temperature inside the charger gets warm or hot, it will go on open circuit and it will stop the charger from working. That's one of the main features of this..(not transcribable)..'cause there's no, it's not a fan system. It means there's no moving parts inside so it caused itself on its own. So if the temperature inside the charger gets hot beyond that point, it will just go on open circuit and it stop the charger from working. Q. Are there any other safety features in this charger apart from the fuses and that this system takes it into an open circuit? A. Okay. There's electronic bolts inside the, the charger that does most of the calculations if it's getting, if the charger has to stop or has to keep on charging. But there's a safety feature on this that if the charger is sitting for, say, 16 hours without doing anything, it will just stop on its own. And that's - sorry, can I add, there's an override alarm on it so that means, so that when you come in the next morning, "Hey, I had an override alarm". Q. On the AC side of the charger, because it's three phase electricity, you've told us you've got three fuses. What would happen if one of those fuses malfunctioned? A. Okay. One of them fuses malfunction means that there's an, for an example, there's an over current on it. It will go to the other two and one of those and it will go on open circuit and will stop the charger from working. You're going to have two out of circuit. Q. So they have to all fail? A. No, at least, it will fail, two of them will fail, it will stop working. Q. From the records of Stanbury & Co, do you say that there's no recorded complaint received from Rainbow Sydney about this charger? A. Yeah, there's nothing on the record. Q. Are you aware of any factory recalls on any of your chargers? A. No. There's no factory recalls on our chargers."
In cross-examination, Mr Lualhati was shown a number of photographs of wiring which he recognised as connectors to the forklift. He agreed that it was a uniform style of wiring but it could come from either the charger or the battery on the forklift itself.
There was no re-examination.

Evidence of Mr Nicola Sutarov

Mr Sutarov is a forensic scientific investigator. There was no challenge to his qualifications and he prepared a report into the fire at 6/164 Adderley Street West, Auburn, dated 8 October 2019, which became Ex F in the proceedings. Following his investigations, Mr Sutarov concluded as follows: 1. "The area of most fire damage was inside the south-western quadrant of the warehouse. 2. Due to structural instability, all of the areas inside of the warehouse were not examined. However, most of the areas were visible and were documented from a distance. 3. The attending fire brigade officers observed multiple seats of fire, with no fuel load between them. 4. The samples collected from the scene were negative for the presence of ILR ("Ignitable liquid residues"). At this stage, there was insufficient physical evidence to determine the ignition source. 5. According to the scientific method, without determining the ignition source, the cause of the fire had to be classified as undetermined. However, if I take into account that Mr Zeng had left the premises four minutes before the fire was discovered, and that the attending fire brigade noted multiple seats of fire inside the warehouse when they first entered, as a result, a deliberate act could not be ruled out."
In his evidence in chief, Mr Sutarov gave evidence that electrical fires or fires started by way of electrical ignition, are known to be slow developing fires.
Mr Sutarov was shown the photograph of the inside of the top of the battery charger (Ex C, pg 27 of 32) and he identified paint on the inside of the lid. He gave the following evidence: "Q. Is there any significance to that paint being on there? How does that fit or does it not fit with the fire starting in the battery charger, the fact the paint's still there? A. If the fire started in the battery charger, I would expect most of the paint to be consumed. Q. So most of the paint from the inside of the charger? A. Yes. Q. Do you say that some of the paint might remain? A. It depends on how long it was burning for. Q. If the fire started in the battery charger, would that be the hottest part of the fire in the whole building, or not? A. Initially."
At [10.10] of his report, Mr Sutarov had referred to two copper conductors at the left edge of the footwell of the forklift. He was asked if the conductors were connected to power and power was flowing, was it possible to determine whether the conductor was connected at the time of the fire. He answered: "A. Given that the conductor had shorted on the metal body, I could, I could see that there was an indicator that it was live, as in connected, and it had enough energy to short. However, it could have also melted, which I was, I can't weigh one way or the other without conducting further examination."
Mr Sutarov was cross-examined on his report. He had visited the premises three times. It was put to him that he was looking for factors that may have led to a conclusion that the fire was deliberately lit. He answered: "A. No, I was gathering data."
He was asked about fire damage in various parts of the premises by reference to the photographs annexed to his report. Mr Sutarov conceded that heat damage to the railing on the ground floor of the premises could have been caused by radiant heat coming from the major fire. He also conceded that in respect of three pallets shown in photographs in front of the railing, there was no evidence of any fuel on top of them. Mr Sutarov agreed that the predominant fire damage was to the western half of the warehouse where the packing machines, pallet racking and forklift and charger were located.
Mr Sutarov agreed that in respect of the spread of the fire, each fire had its own characteristics.
Mr Sutarov agreed that when the skylights in the building burnt, they could melt causing droplets of hot material to hit the ground. He also agreed that it was quite possible that such drop down material would ignite cardboard, and possibly timber, depending on its properties.
It was put to the witness that the pallet at the north-eastern quadrant could have been ignited as a result of drop down material, to which he answered: "There was no skylight installed above those pallets."
Mr Sutarov agreed that he had collected samples for analysis to check for the presence of an accelerant in the warehouse. No accelerant had been detected in any of the samples collected. He gave evidence that firelighters are predominantly made of kerosene, and with testing, kerosene could be detected as an accelerant if it was not consumed totally by the fire.
Mr Sutarov agreed that the plastic garbage bin at the north-eastern corner of the premises could have been burnt by radiant heat from the fire. He did not know how the pile of pallets next to it caught fire, however, he gave evidence that the pallets burnt as a result of radiant heat from the fire. He was challenged as follows: "Q. Yes, and given the degree of fire within that warehouse is it not also possible in that warehouse that that pile of pallets could have ignited as a result of radiant heat? A. Based on the physical evidence that I saw on the roof above, where I saw that, I observed there was still remains of insulation on the roof, it was inconsistent with radiant heat igniting those pallets. Q. Did you see any evidence of anything that may have been placed on the pallets and set alight so as to burn the pallets? A. No I did not. Q. In fact, there does not appear to be, if we look at photograph 91, fire refuse, if I can use that term, anywhere near the pallets, other than the garbage bin, of course. If someone had stacked a pile of flammable material, combustible material, on or near the pallets and set it alight, there would be remnants of it visible, would there not? A. Correct. Q. Indeed, looking at the pallets, it would appear as though the pallets were burnt largely from the top to the bottom. The greater fire damage is on the top pallets rather than the bottom pallets, true? A. Correct. Q. For someone to have set them alight, you would have had to, I suggest, put material on top of the pallets and lit it, would you not? A. It's possible to do it that way. Q. But you didn't see any remnants of anything burnt on top of the pallets, true? A. No they were severely fire damaged on top, no. Q. Fire damage of the pallets themselves, yes? Not remnants of boxes or any other combustible material on top of the pallets, true? A. I didn't observe any, no. Q. So you're agreeing with me? A. I do."
In respect of the forklift charger, Mr Sutarov had conceded that even if there had been a fire inside the charger, there may still have been paint visible inside the top lid. He gave evidence that there was some flammable or combustible material inside the charger and that had the material inside it burnt, then the metal box would have got quite hot. He adhered to his previous opinion that there was insufficient physical evidence to make a conclusive determination to eliminate the charger as a potential cause of the fire.
Mr Sutarov gave evidence that by the time he inspected the premises, the forklift had been moved. He was not aware that the cables had been cut to move it. Further, the cable from the charger was missing and he was not aware of how long the missing cable was.
Mr Sutarov conceded that a short in the Anderson plug pin, attaching the charger to the forklift battery, could have caused the fire.
Mr Sutarov was of the opinion that the electrical box at the south-eastern corner of the premises was not an ignition point for the fire because the fire damage to the internal cables was not consistent with a fire developing there. The damage to the box came from outside it.
At [12.3] his report referred to possible electrical ignition sources for the fire. He was asked: "Q. Potential accidental electrical ignition sources that were considered and could not be eliminated based on physical evidence inside the warehouse were". We've already discussed the forklift and the forklift charger. I want to talk about these two packing machines. Now, there were two electrically driven machines within the warehouse, were there not? A. Correct. Q. Did you have the confidence to examine those items to form a view as to whether they played some part in the fire? A. It was really fire damaged and no, I did not examine them in detail. Q. So you still hold to your view that it could have been potential, accidental electrical ignition coming from those two packing machines that caused the first fire? True? A. It is a possibility. … Q. I'm not being critical. I mean, you just couldn't right? Had there been an accidental, electrical ignition source between that part of the warehouse, that's the power socket part of the warehouse, and had there been under that area stored cardboard boxes, that could have been the cause of the fire, could it not? A. It could. Q. Paragraph [12.8] on page 17. "It was reported", you start that paragraph with, "multiple isolated seats of fire". I won't read all of that out. "Unexplained, multiple seats of fire are an indicator of a deliberately set fire", yes? A. They are an indicator. Q. An indicator. Assuming this witness information was correct, then I would form the opinion that the fire was probably, and you use that term, fairly and correctly, the result of deliberate. Yes? A. Correct. Q. But throughout your report, you do not discount the possibility of a number of other ways in which this warehouse fire could have started. True? A. There was other possibilities, yes."
Mr Sutarov was asked again about the damage to pallets situated at the north‑eastern corner of the building as follows: "Q. I understood your answer to be as the radiant heat could not cause that fire because there was no damage to the insulation in that area? A. What I meant by that was, if the fire travelled from west to east before it got to that north eastern corner of the warehouse, I would've expected more fire damage to the insulation beforehand and around the skylights, which is closer to the area of most damage. Q. I've asked you questions about the pallets so I won't go any further than that. You do accept that photograph 63, firstly, shows damage to the skylight, yes? A. Yes. Q. Which I suggest to you is quite near, in terms of the overall makeup of the warehouse, to the pallets underneath it? You don't accept that, do you? A. Not, it's near but not directly above it. Q. But need it be directly above it for there to be fall down? A. To ignite the pallets? Q. Yes. A. If it's, if it's dripping on the concrete floor, then I kind of see how that would ignite the pallets from the top down. Q. No, accept that the skylight is not directly above the pallets, is it possible that drops may have been moved in the overall circulation of air or wind within the warehouse to cause and to drop onto the pallets? A. I haven't had that experience."
Finally, Mr Sutarov was cross-examined about the conductor cables and he agreed that the cables shown in photographs 128 had clearly been manually cut, as opposed to being destroyed by fire.
In re-examination, Mr Sutarov was again asked about the blue-coloured paint on the inside top lid of the battery charger. He was asked: "Q. Assuming now that the lid throughout the fire remained on the battery charger, what are the chances of that paint or residue remaining like that had the fire originated in the battery charger? A. I would tend to think that it all depends on the duration of the fire, but considering the majority of the combustible material inside the charger was consumed by fire, I would expect that most of the paint internally should have been consumed."
A close-up photograph of the inside of the battery charger lid became Ex G.

Evidence of Mr Robert McKay

Mr Robert McKay is a forensic examiner in the area of suspected arson, with particular experience in relation to vehicle fires. There was no dispute as to his qualifications and expertise. A report prepared by him dated 3 September 2019 became Ex H. In his report, Mr McKay concluded that the battery charger was not the cause of the fire. Whilst there was evidence suggestive that the forklift may have been connected to the battery charger, the fact that one of the conductors had welded itself to the metal body of the forklift, was not in Mr McKay's opinion due to a failure in the conductors from the battery charger to the forklift.
Mr McKay was also of the opinion that having regard to the timeline where the owner left the premises at 18:22:01 hours, and smoke was recorded coming from the premises at 18:25:51 hours, flames were recorded at 18:26:22 hours, and at 18:26:34 hours, flames were seen billowing out of the roof, a total of four minutes and 33 seconds after the owner had left the building, did not fit with the hypothesis that either the subject forklift or the battery charger it was allegedly connected to, had caused the fire.
Mr McKay was shown Ex G, which was a close-up of the photograph being figure 20 on p 15 of his report. He gave evidence that assuming the fire had originated in the battery charger, he would have expected no paint to have remained on that lid. He was asked to explain and gave the following evidence: "A. Certainly. If the fire initiated or ignited within the battery charger, this is the part of the fire that's going to be exposed to heat for the longest period of time. That exposure would cause the paint to be totally consumed during the fire and not leave, as can be seen in exhibit G, remains of wrinkled paint, because the paint goes through a situation where it will heat, char and then go to total consumption, leaving bare metal which is indicated by the rust seen in exhibit G. Q. Is the fact that paint remains indicative to you that the fire so far as it concerned the charger lid was put out rather than burnt out - rather than allowed to burn out? A. Could you rephrase that? Q. Does the fact that the paint remains on the inside of the lid indicate to you that the fire was extinguished - that is, put out by the fire officers or otherwise - rather than allowed to simply burn out? A. I don't know that I could actually draw a conclusion either way on that extinguishment of the fire. It could well be that what's caused the external damage to the battery charger, that fuel has now ceased to exist and therefore there's nothing compromising the remaining paint within the battery charger. Q. Had the fire started inside the charger, the paint would have been gone? A. I would expect to be looking at a complete clean burn on the interior of that surface as I've seen on many occasions with vehicle fires where the fire has initiated within the engine compartment. You may get paint on the upper or outside surface of the bonnet or the hood of the vehicle but the interior surface is completely devoid of any paint or trace of paint."
In his report, Mr McKay had referred to an exemplar of the battery charger (p 8, fig 8 of Ex H). He gave evidence that the fuel load within the charger was as follows: "A. Virtually none. The only fuel load in this would be small amounts of insulating material on the electrical conductors. Beyond that you've got metal components either aluminium or copper, electrical components, so there's nothing in this charger save the small amount of insulation on the electrical conductors which would provide any fuel load." He gave further evidence to explain how the vents on the charger provided natural convection of air that flows into the charger from the bottom and flows out through the top.
Mr McKay was asked to expand on his opinion that the timeline did not fit with the hypothesis that the forklift or the battery charger had caused the fire. He gave the following evidence: "A. Yes, certainly. Electrical fires are normally slow to propagate. First you have a short-circuit or some failure of an electrical component leading to the short-circuit and that will then cause ignitable material such as insulation on conductors to ignite and that acts as a catalyst or a wick to other ignitable items in the near area. That process can take anywhere from minutes to hours. What we're talking here on the time line referred to in paragraphs 6 through 9, we're talking four minutes and we've got a battery charger with no ignitable items in it save the small amount of insulation on conductors. For four minutes for this to occur it's highly, highly improbable if not impossible."
In cross-examination, Mr McKay was asked whether prior to completing his report he had been made familiar with the contents of the reports of other experts, to which he replied: "No, I have not."
He had not seen the reports of Mr Sutarov or Mr Schweickle. He agreed that inside the warehouse there was a lot of fuel, being cardboard boxes on shelving. He had not seen fires in the type of charger here. He did accept that there was some combustible or flammable material within the charger, being a small amount. He was asked: "Q. So you don't deny the possibility that some sort of electrical problem within the charger would cause a fire? A. I believe that the charger - had there been an electrical fault, there would be insufficient fuel within the charger to ignite and propagate a fire."
Mr McKay was cross-examined on the exemplar charger referred to in his report. He agreed that the length of cable from the battery lid to the Anderson plug was approximately 30 to 40 cms, whereas the extended length of cable came from the charger to the battery on the forklift. He was asked as follows: "Q. Had there been a fire on that particular day in that charger, given the area of the warehouse, given the height of the ceiling of the warehouse, given the fact, I think, as you may have noticed, there were in the roof of the warehouse, exhaust vents, a number of these circular whirligig..(not transcribable)..? A. Yes. Q. Would it be the case, if there was this fire, that the first thing that anyone standing near it would notice is smoke? A. Yes. Q. If one was not standing near it, was in perhaps another part of the factory, that smoke could be emanating for some time, could it not? A. No. Q. No, why not? A. Simply because with an electrical fire, whether that fire be caused by a short circuit or other mechanism, the insulation is consumed almost instantaneously, by the conductor, or the wire, heating up rapidly and it virtually lasts for, if not instantaneously, seconds before that insulation material is completely consumed and certainly, would not issue large volumes of flame. … Q. Is it possible, if a fire had started in that charger, that the contents within it would indeed have dropped to the floor quite quickly? A. Yes. Q. Therefore, the principal heat generated from that fire would come out of that front vent would it not? A. No, airflow. There would be very little heat dissipation through that lower vent featured in figure 17, again, because of the thermal dynamics of fire and it would rise to the upper vent on the other side and dissipate that way. Q. What if the upper vent was faced against a brick wall? A. Bricks aren't combustible. Q. I'm not suggesting the fire was that..(not transcribable).. But the heat, effectively if it was restricted from going through that top vent, may go through the bottom one mightn't it? A. It would be doubtful and if it, if it was the case, hypothetically, then we would have a retention of heat within the battery charger and that would propagate further destruction of the paint on the inside of the lid. So-- Q. Let's assume that the fire starts that way, that the contents of the chargers fall to the bottom of the container, there is some flame or heat coming out of the front part of it, and as you say, very shortly thereafter the contents simply have no further fuel from which to burn? A. Correct. Q. There would, however, possibly have been heat and/or flames emanating from the front of the charger whilst it was still burning, true? A. No, I don't believe so. And the reason I don't is that by the time the material was sufficiently degraded to fall to the bottom of the charger, I will put it to you that most of the ignitable items or the - in that material would have been totally consumed, as would the aluminium on the fins and so on. So, the, any heat generated by the remains of the inside of that charger would have been done, dissipated and no longer producing. Q. That was a clumsy question, I'll put it to you another way. A fire starts within the charger and it smoulders, if that's the right way of putting, for some little while. Then, it engulfs the contents and the contents fall to the bottom of the charger whilst there is still a fire within it. All right? A. Mm. Q. Now, (a), assuming that the charger is sitting against a brick wall, if there were flames at the bottom whilst there was still fuel within the charger to burn, those flames may have emanated from the front bottom vent. A. If we're talking hypothetically and working on that, that we may have flame in the bottom, which I doubt, in fact I'd say not, then we need a way of transferring that flame from the inside of the charger to an ignitable item on the outside of the charger. And the only way that would happen is for that charger to have cardboard boxes piled around it, I mean, in contact and close proximity. If it is not, the extent of the hypothetical fire would not travel across a concrete floor without the aid of some form of material to burn."
Mr McKay was further cross-examined as follows: "Q. Assuming that it had been, it is possible that there may have been an ignition point within the charger and a fire of those items adjacent to it? A. I don't believe so because, again, once we've got the contents of the charger in the bottom, it is spent, there is nothing, the charger has nothing to burn other than the insulating materials, which would be totally gone by the time the contents of that charger reaches the bottom of the charger. Q. One of the reasons you're suggesting, or correct me if I'm wrong, that the fire didn't start within the charger, is the paint on the inside roof cover? A. Yes. Q. But if a fire smouldered for some time and the contents effectively dropped to the bottom of the container, any flames would not, really, be touching upon, or impacting upon the cover? A. You still have the heat plume of whatever's burning and I go back to the fact that there is nothing within that charger, save a very small amount of insulating materials, which would ignite. And heat will rise, and regardless of whether there's visible flame or smouldering, you still have a generation of heat energy and that heat energy will, if, if a smouldering situation continues, you will get an increase of heat energy, even though you've got vents, and that paint will burn. If I might go back to it, if we had that and we, we had a total, a fire in the bottom of the charger, we would have seen, or had, a very clear demarcation line within the paint on the inside. And I'm not seeing this."
Mr McKay conceded that some paint was more fire retardant than others. He gave this evidence: "Q. Would one not, perhaps, assume that the type of paint that would be used internally for this electrical component would have within it some form of fire retardation? A. That assumption might be drawn, but if that was the case, then we should have far more paint on the inside of that charger lid, because there are areas where we've had total consumption featured by the visible rust, and that, I will put it to you, is from a heat source external to the charger, rather than within that charger. Q. What are you saying, that there would be a uniform pattern if the fire was inside? A. If the fire was inside I should not be seeing any paint at all. And if, if-- Q. Fire retardant or otherwise? A. --if, if it was a fire retardant material, then I shouldn't be seeing - I'm, I'm seeing parts and if we, if we could refer back to the previous exhibit, which shows a close up of this lid, if you look at that exhibit you can actually see clear wrinkling of the paint. Now that, that's a normal process that I've seen on numerous occasions within motor vehicle fires. If we had fire retardant paint, the areas of rust shouldn't be rust, we should still have some evidence of paint left there."
Mr McKay denied that there could be an ignition point within the charger for this fire, nor could there be an electrical fault within the forklift which caused the fire. He conceded that there was some evidence of some electrical failure activity on the cables to the forklift battery, but denied they could be responsible for a conflagration unless cardboard boxes were piled all over the forklift.
Mr McKay conceded that there may have been a short in the Anderson plug, but qualified his answer that it would need something to ignite and would not continue to burn beyond "milliseconds to seconds". He agreed that in the ordinary course, a degree of cabling from the charger to the forklift would be on the floor. He was then asked: "Q. If on that floor and underneath that cabling there were cardboard boxes or some other sort of flammable material, and those cables failed, or the insulation on them failed, that could cause an ignition point, could it not? A. It could."
There was no re-examination.

The evidence of Yuanqi Hong

Ms Hong was employed as the property manager of real estate by a company known as Yoogalu Pty Limited. It was the owner of Unit 6/164 Adderley Street West, at Auburn. She gave evidence that a three year lease of the premises to Rainbow Sydney commenced on 1 November 2018 and was to terminate on 31 October 2021. The total annual payment due by the tenant was $115,420.00 plus GST.
Following an adjustment to the lease start date, the monthly rent payable was $9,618.38, following an initial deposit paid by Rainbow Sydney of $10,222.44, paid on 30 November 2018. Thereafter, rent was due on the first day of each month from 1 December 2018.
Ms Hong gave evidence that a bank guarantee from Rainbow Sydney was provided by the Commonwealth Bank of Australia in the sum of $30,667.32 on 18 December 2018.
No rent was paid by Rainbow Sydney and on 28 March 2019, an email was sent seeking arrears of rent in the sum of $21,518.33. Apart from the guarantee monies, the only sum paid by Rainbow Sydney was the deposit of $10,222.44. Ms Hong gave evidence that on checking the records, there had been no complaint made with respect to that property about electricity issues, either from Rainbow Sydney or any other tenant.
In cross-examination, Ms Hong gave evidence that it was standard procedure for her company to follow up non-payment of rent on the 15th of every month. Emails were sent in the English language. Following payment of the bank guarantee, the outstanding balance due to the landlord was $2,537.13.
There was no re-examination.

Evidence of Mr Yong Yang

Mr Yang gave evidence that he was interviewed by the accused and thereafter started work for Rainbow Sydney in November 2018. He started in IT, and then got his forklift licence and started forklift driving. He commenced on $15 per hour, but that was increased to $18 per hour when he obtained his forklift licence. When asked who were the people he knew to be involved in Rainbow Sydney, he identified the accused, a Mr Lin, a person called Arthur from Hong Kong, and another man by the name of Chao Li.
Mr Yang gave evidence that he did not ever charge the forklift battery, but had not heard of any problem with charging the forklift. Nor had he heard of any problem with the electrical circuitry or of electrical problems at the warehouse. He worked 25-30 hours per week, and had notified the forklift company when there was a problem with the tyres.
Mr Yang gave a description of the warehouse as shown in photographs. He gave evidence that rubbish would be put into a bin and cardboard boxes would be folded and put in the corner of the warehouse. No rubbish was left around the packing machine or the pallet shelving.
Two photographs of the interior of the warehouse became Ex J.
Exhibit A, the CCTV footage of the premises at 6.36pm on 18 April 2019 was played and Mr Yang identified the two persons on the warehouse floor as himself and Chao Li.
Mr Yang was asked about the CCTV and stated that the hard drive was in the upstairs office of Mr Lin. He denied turning off the CCTV on 18 April, or at any other time. He left the premises after 7pm on 18 April 2019. He was due to return on Tuesday 23 April 2019, but received a phone call from Chao Li the night before asking him not to attend work. Earlier in the night he heard from the accused, who rang him to tell him to clean the premises the next day and welcome the new team. He was later asked to meet the accused at the premises on 29 April, and met him at the Auburn railway station and walked with him to the warehouse. The accused told him there had been a fire accident, and that there will be someone from the insurer to come and ask questions. The accused said the following to him: "I don't know what the company looks like now and if the machines are still fine. The fire was quite big. I went to the office that day to do some paperwork. Before I left I put the forklift on charge because we will use it the next day. Later that day I got a phone call from the property to say there was a fire. I went back to the office with Chao and Mr Lin. And we couldn't get any closer. This will be the first time I've gone back since the fire. I hope the machines are still good. I hope it has not been damaged by the water. So we can still use it. We can find a new warehouse. There were a lot of cardboard boxes, so once they get touched with fire, the fire will be very big. There were no cardboard around the machines, so there is a good chance the machines are still good. It might be the forklift that caused the fire. And the warehouse was pretty old, so there might be some issues with the wires."
Mr Yang gave evidence that when they arrived at the warehouse, they met a man from the insurance company. The accused told him that he was looking for a new warehouse. He gave evidence that he never heard any mention of Rainbow Sydney looking for a new warehouse before the fire. In the lead-up to the fire, he gave evidence that there was no particular change in the stock levels in the factory, and there was no change in the amount of work being performed at the warehouse in the days and weeks leading up to the fire.
Mr Yang gave evidence that he was not paid for the last month of work he did for Rainbow Sydney. He was paid by the month, but there had been a delay of one and half months until he was paid on 15 March 2019. When he asked the accused why he wasn't paid, the accused told him: "The last payment was not so long ago and I'll pay you together next month." He was now owed $2,844.00.
Mr Yang gave evidence that before he spoke to the insurance company representative about the fire, the accused, "asked me not to say too much to the insurance company and to tell them that I had arrangements later on so as to reduce the length of the meeting from 3 hours to 1 and half hours and to remember what I would tell them and to tell him what I said. He also asked me to tell them that I commenced work in February 2019."
Mr Yang also gave evidence that the accused told him to tell the insurance company that they had always been very busy. Before the meeting on 22 May 2019 with the insurance company, he met the accused at Central railway station.
Mr Yang gave evidence that he told Ms Russell, the insurance investigator, the truth. During his interview with Ms Russell, he received text messages from the accused asking him to come out quickly and asking why it was taking so long.
After the meeting, he met with the accused, who asked him to tell him what was said during the meeting and to send messages to him so he could know. The accused then gave him $100 for lunch money.
Mr Yang also gave evidence that he had a text conversation with the accused about the fact that he wasn't required to give a police statement. He told the accused that he hoped the accused would pay him the wages as soon as possible and then he will be going to do the police statement. The accused had replied: "Don't tell them too much. It's been so long. There's a lot of things that you do not remember. There are many things that only the owner would know and the more you say, the more trouble you get yourself in. Many documents, insurance related documents were done by you, so you would get yourself into trouble too."
Mr Yang gave his statement to the police on 4 July 2019. He was contacted by the accused as he was giving that statement. The accused said: "Don't tell them too much. Say as little as possible and remember what you said and tell me what you said to them."
In cross-examination, Mr Yang gave evidence that he understood the company would receive goods, for example, baby formula, and do re-packaging and return the products to the companies. There were roughly 40 or 50 boxes on each pallet and six tins of formula in each box. He was asked, when he started and was doing some Excel work or IT work, that the company was operating and making a profit. He answered, "I don't think so".
Mr Yang was asked what Mr Lin's role was in the company and answered: "He didn't do any particular work but I believe him to be an owner of the business." He gave evidence that he saw the accused making reports to Mr Lin. That involved the accused telling Mr Lin about the business.
Before the forklift arrived, the work in the warehouse was done manually by hand. However, they had not done any packaging prior to the arrival of the machines. Mr Yang gave evidence that the packaging machine arrived soon after he commenced work. He played no part in ordering or doing the paperwork for the pallets. Before the forklift arrived, they had borrowed a forklift from the warehouse next door.
Mr Yang gave evidence that he last spoke to Chao Li about two months after the fire. He did not know what Mr Li was doing then or whether he had a job.
Mr Yang gave evidence that he did not notice any significant growth in the business. It was suggested to him that business was improving in March and April and a lot more stock was coming in regularly. He answered, "Same as before". A truck would arrive generally once a day but sometimes didn't come. He agreed that sometimes they would have to do overtime because a lot of product would come in. That would be once a week or once a fortnight. It would take between half an hour and one hour to take a pallet from the truck, do all the work needed and put it back on the truck. Once they were emptied, the labelled boxes would be flattened and left in the corners of the premises. They would be there for months and months. He agreed that there may be hundreds or thousands of empty cardboard boxes stacked in the corners. He was asked: "Q. Were they stacked so much that they may have been touching the charger? A. We did pay attention to avoiding them from touching, prevent them from touching the charger. Q. Did you ever ask Mr Zeng what he intended to do with all these boxes? A. He said he would get other companies to recycle them. He would sell them to the recycling companies. Q. Did that ever happen that you saw? A. I don't remember seeing that."
Mr Yang gave evidence that the accused had mentioned to him that he was hoping to get an export licence for milk products to China. He had a hope to develop the business so he could sell directly into China. He had told Mr Yang that a month or two before the fire.
Mr Yang gave evidence that he had nothing to do with people paying Rainbow or Rainbow paying people, and did none of the bookkeeping work on the computer.
Mr Yang gave evidence that he did not remember where the forklift was when he left the warehouse on the evening of 18 April 2019. He gave evidence that at 7.15pm on 22 April 2019 he received a WeChat message from the accused which said: "10.30 tomorrow, clean everywhere to welcome the new team."
When asked what was meant by "to welcome the new team", Mr Yang gave evidence that the accused mentioned that people from another company will be joining us in the office. He believed they were partners and that they would work together with Rainbow Sydney. He gave further evidence that he did not know where Chao Li lives at the moment.
On 29 April 2019, Mr Yang gave evidence that the accused asked him to set up an Excel spreadsheet for him. He entered that onto his computer at home and sent it to the accused.
In respect of the evidence Mr Yang gave about his conversation with the accused prior to speaking to the insurance company, he gave the following evidence: "Q. He didn't tell you then to tell any lies to the insurance company, did he? A. He did. Q. He told you to tell lies when he WeChatted you on 9 May, did he? A. He told me that when we met in the morning. Q. On 22 May you're talking about? A. The day where we met the lady. Q. Before that, he'd never said to you that you had to make up any stories or tell any lies to the insurance company, true? A. He did ask me to tell them that I'd commenced work in February. Q. Did you ask him why he wanted to tell them that? A. I don't remember. Q. See by the time you went to the insurance company, Mr Zeng owed you nearly $3,000 in unpaid wages, didn't he? A. Yes. Q. You were not happy about that were you? A. I was not happy indeed. Q. Did you tell the insurance company that you only started working in February? A. I told the insurance company that I had commenced work in November and that Rui Zeng had told me to tell them that I commenced work in February."
Mr Yang gave the following evidence: "Q. You knew that you were not paying tax on the money you were making at Rainbow, true? A. He promised me to pay the taxes for me. Q. That is untrue. He never said that to you at all? A. I did send him my tax file number and the other relevant documents on his request."
Mr Yang gave evidence that on the day he spoke to the insurance company, the accused had handed him $100 for lunch. He gave the following evidence: "Q. You said to him that you wanted $50 an hour for every hour you were there, didn't you? A. I didn't ask him for money. He just gave it to me."
In respect of the WeChat messages sent by the accused whilst Mr Yang was speaking to the police, he was asked about [14] of his second statement, where he stated: "He's asking me not to say too much and that I've forgotten things and that I don't know much about the company."
When asked whether the accused said those things, Mr Yang agreed. He gave the following evidence: "Q. At that time, you knew very little about the company didn't you? A. I did know quite a lot about the company but he didn't want me to tell them too much. Q. Did you know anything about the insurance with the company? A. No. Q. Did you know anything about the bookkeeping of the company? A. No. Q. Did you know anything about how much the company made? A. I have a rough estimation but I don't know the exact figure. Q. How did you calculate a rough estimation? A. I knew at the time how many boxes were coming in each day and I knew the unit for each box. With those two, I could do a calculation."
Mr Yang gave evidence that he had met one of the customers of Rainbow once, and another customer on several occasions. He did not discuss finances with them, nor did he discuss finances with Mr Lin. He denied making up any of his evidence because the accused still owed him money. Finally, Mr Yang gave evidence that he had nothing to do with the exporting of any of the material from Australia to China.
In re-examination, Mr Yang was asked about the cardboard boxes in the corner of the warehouse premises. They could not be seen in Ex A on 18 April 2019 at 18:36:35 hours, because they were blocked from view by the pallets stacked on the racking.
Mr Yang gave further evidence that he was told by the accused that there were new partners coming into the business, several days before the fire accident.

Evidence of Ms Rong Cai

Ms Cai was employed by Eternity Insurance and Financial Services in May 2019. That was a business of an insurance broker. She had examined the records of the business and gave evidence that Rainbow Sydney had two separate insurance policies for its business. The first was public liability insurance through AIG, with effect from 22 November 2018, with a cover of $20,000,000. There was also third party property cover for $250,000.
Ms Cai gave evidence that on 16 April 2019 a policy was issued by CGU, covering $250,000 for contents and $100,000 for stock. On 17 April 2019, business interruption cover was added to the policy for 12 months, gross profit of $180,000. Two emails sent from the salesman on 16 and 17 April 2019 became Ex K.
Ms Cai received a phone call on 23 April 2019 from the accused. He said: "We had a fire accident last week, I want to make a claim. The damage is quite serious, what should we do at this moment."
Ms Cai told him: "For the fire damage lodgement, we need to get the information and the documents from the client first." She sent the accused an email and told him he needed a profit and loss statement from his tax return or accountant.
On 24 April 2019 she received an email back from Rainbow Sydney attaching a profit and loss statement, listing a quarterly net profit of $25,720.83.
Ms Cai gave evidence that she did not think it was an extensive profit and loss statement, as it was only for one quarter. On 25 April she sent emails to AIG and CGU making claims on behalf of Rainbow Sydney. The following documents were tendered: Ex L - Certificate of Currency of AIG policy Ex M - Certificate of Currency of CGU policy Ex N - Email from Emma Cai to Rainbow Sydney dated 23 April 2019 Ex O - Email from Emma Cai to CGU Ex P - Email from Emma Cai to Rainbow Sydney, together with attached documents dated 26 April 2019 Ex Q - Email from accused to Emma Cai, together with attached documents dated 1 May 2019
In cross-examination, Ms Cai gave evidence that she was unaware of any advice that the sales person may have given to the accused about either of the policies issued. Her first involvement came on 23 April 2019.
Ms Cai was asked about the claim for stock of $146,000. She was asked whether she sought documents to substantiate that figure, and gave evidence that it was supplied by the client for the purpose of lodging the claim.
Ms Cai gave further evidence that she arranged for an interview between the accused and the loss adjuster, NKG Management Services' representative. That interview took place at her office, however, she did not participate.
There was no re-examination.

Evidence of Huang Zhang

Ms Zhang gave evidence that she had first met the accused, who she knew by the name of Rain, in October 2018. She had responded to an advertisement with respect to a business opportunity on a Chinese app called "Sydney today". She contacted the accused by mobile phone and then transitioned their dialogue to WeChat. They then had a meeting in Eastwood where they discussed the nature of the accused's business. The accused told her he was selling 10%, maximum 20% of the shares in the business and she told him that she wanted 40%. The accused had told her that the company was worth $200,000 and had said: "If you want 40%, I want $120,000."
Ms Zhang gave evidence that he said that because he thought the business was worth a lot more. She agreed to put in $120,000 and they met at an accountant's office in Ashfield, AC Professional Accounting. She agreed to become a director of the business and on 18 October 2018 she transferred $20,000 into the accused's ANZ bank account.
Ms Zhang gave evidence that the accused asked her to transfer money to Harvey Norman to secure the warehouse rent and on 19 October 2018 she paid $10,222.44 into Harvey Norman's account. On 22 October 2018 she transferred a further $20,000 into the accused's ANZ bank account, and on 7 November 2018 she transferred $20,000 again into the accused's personal bank account. Exhibit R was a bundle of receipts in respect of those four payments. Exhibit S was the ANZ bank statements of Ms Zhang.
Ms Zhang gave evidence that the accused set up a CBA account in the name of Rainbow Sydney. By that time, she had transferred $70,222.44 in total to him. At that time, she decided she no longer wanted to be a shareholder and director, and gave evidence that she wanted to "withdraw". When asked why, she said: "Because I found out that it was not like what he had described. His experiences in such and such were different as what he had told me."
Ms Zhang gave evidence that she met the accused at Caringbah in November 2018 and asked him to transfer to her the $70,222.44. He asked her why she wanted to give up, and she said: "Sorry because my money cannot arrive."
Ms Zhang was asked whether there was a problem with her getting money, and she answered: "No there was no problem. I just felt something was not quite right so I wanted to stop the investment. I also tried to find out what he was like."
On 15 November 2018, Ms Zhang gave evidence that she went with the accused back to AC Professional Accounting at Ashfield. On that day, she transferred 30 shares to the accused and retained 10% of the shareholding. She also resigned as director and secretary of Rainbow Sydney. Exhibit T was a bundle of documents comprising the transfer of shares and letter of resignation dated 15 November 2018, together with documents filed with ASIC.
In cross-examination, Ms Zhang denied that she was a successful business woman in October 2018, but conceded that she did have experience in business. She owned a massage parlour and a brothel, and employed about five full-time employees and some part-timers. She was asked about deposits of substantial sums of money into her own bank account and described them "as a big sum of money or a small sum, depending on your perspective."
Ms Zhang gave evidence that when she read the advertisement she was attracted to it as a new business opportunity. It was the only business she knew that would use machines to repackage milk products. She had visited quite a few gift shops to purchase milk products to send back to China and was familiar with the way they packaged the products. She was aware that a lot of people in Australia were buying and packaging milk products and sending it to China at the time. She did that, but denied doing it professionally. She just bought it for friends. She received no commission for doing so, but did receive the cost of the purchases.
Ms Zhang gave the following evidence about the payments she made in November 2018: "Q. And at that stage you thought you were going to make a lot of money out of the business, didn't you? A. It was an opportunity to make a lot of money. Q. You were prepared to, in effect, give $120,000 to a person you had only just met, who didn't have a warehouse to start his business. That's true isn't it? A. Yes."
Ms Zhang gave evidence that the accountant, by the name of Alan Chen, was introduced by her, as the accused was unable to find an accountant. Ms Zhang gave evidence that she had asked the accused about his business experience and he said: "A. So he said that he had previously worked in packaging in the gift shops as well so he knew how to process work and if you compare manual packaging with machine packaging, manual packaging would take a lot more time and may be you'll save a few cents in during that time, but the machines will, would win by volume. I did do the calculations at the, at the time."
Ms Zhang conceded that Mr Chen would have a role to protect her interest in the business. She gave evidence that she went to the warehouse once, but did not see the machines.
She was asked whether she decided to remain a 10% shareholder. She answered: "A. It was not that I had decided to remain a 10% shareholder. It was that he would not return my money to me, so 10% would be better than zero." Q. He told you he wouldn't return the money because it had been spent in starting up the business? A. INTERPRETER: No. Q. And that at the time that you were asking for your money back, he had received the machines and the business was operating? A. INTERPRETER: It was all at the same stage, when I made the payments and the business was about to start. Q. You agreed to pay the money and the money went into the business and then you changed your mind? A. INTERPRETER: So I made the payments to his personal account and during the process, I found out that something was not quite right so I wanted to have my money back and stop the partnership. Q. You were told by him, weren't you, that the $70,000 was payment for the 10% share in the company that was operating? A. INTERPRETER: The company was not operating. Things were in preparation and I made the payments to his personal account for the shares. He said "If you wanted your money back, I can only give you 10%". Q. Can I suggest to you that that is not what the agreement was? He said to you that the $70,000 was for your 10% share? A. INTERPRETER: So initially, the agreement was $120,000 for 40% of the shares but I had only paid $70,000. There was $50,000 remaining. I wanted my money back. He would not return it to me and he decided at the time unilaterally, that the 70%(as said) would purchase 10% of the shares. So he had the say, I did not, and he told that to me himself."
There was no re-examination.

Evidence of Mr Boyu Zeng

Mr Zeng gave evidence that he met the accused, Rui Zeng, in February 2019. A meeting was arranged by his girlfriend, as he was interested in investing in the accused's business. He went to the warehouse at 164 Adderley Street West, in Auburn and the accused asked him to invest in 30% of the business. The accused told him that 30 or 40% would be around $100,000 to $150,000. He also told him that he earnt 80 cents for each box that he repackaged.
Mr Zeng gave evidence that he decided not to invest because the costs of human capital and boxes was high and the volumes the machine would package was not that high. Additionally, the rent was rather high. He thought the margin of profit over cost was not that high, so he decided against the investment. Mr Zeng operated a gift shop at Parramatta which sold, amongst other things, baby formula. He agreed with the accused that he would buy baby formula from him at a cost of $31 per 900 gram tin. He ordered 180 boxes at an agreed price of $33,480.00. He agreed to pay 50% of that amount as a deposit, and on 1 March 2019, paid $20,000 into the accused's CBA account. On 16 March 2019, he transferred $14,560 into the same account.
Mr Zeng gave evidence that on 16 March 2019 the accused phoned him to advise that the baby formula had arrived and invited him to come and have a look. Approximately one week later he went to the warehouse in Auburn and was shown three pallets of baby formula. He asked the accused if he could store the pallets there as he did not have room to store them himself.
Following that, Mr Zeng gave evidence that his girlfriend told him: "Rain told us that he knew a person that can buy the baby formula at a higher price and asked us whether we wanted to sell to him or not."
Mr Zeng phoned the accused who told him: "You can earn $1 per tin. Do you want to sell to this guy or not?"
The accused would not identify the buyer and said that he did not want Mr Zeng to contact him directly. The price was $32.50 per unit and the accused would keep 50 cents per can. The accused told him the buyer wanted 1,620 cans and that Mr Zeng would have to buy more through another warehouse.
Mr Zeng gave evidence that on 20 March 2019 he went to Regents Park and purchased 540 units which he took to Rainbow Sydney's warehouse. The accused told him that he would sell them to the buyer and give him the money back.
On 19 March 2019, he sent an invoice to Rainbow Sydney for the baby formula in the sum of $72,900.00. That was sent over the WeChat application. On 21 March he received $20,000 from the accused's bank account and the following day received a further sum of $12,900. The total received was $32,900.
Mr Zeng gave evidence that within a few days he phoned the accused asking, "Where is the rest of the money?" The accused said: "I lost my identification document. I cannot transfer the rest of the money from my account because they froze the account. Just wait for me to get it back and I will transfer you the money."
Mr Zeng gave evidence that he continued to telephone the accused asking him for money, and in late April 2019 the accused told him: "My warehouse was on fire. I lost my machine and all my stock. I cannot pay the money back to you." Mr Zeng said: "The money doesn't relate to the fire." The accused said: "I don't have any money. I need to wait for the insurance claim."
In cross-examination, Mr Zeng agreed that he expected to be paid once the accused had been paid by the purchaser of the baby formula. He agreed that the accused sometimes spoke to his girlfriend, and sometimes to him about the monies owing. He gave the following evidence: "Q. Did he say anything about the fact that the boxes were still at his warehouse and had not been picked up? A. What he said to me was probably that the stocks had been sold. Q. Even if they were sold, did he say anything about whether they'd come to pick up the cans? A. I'm not quite sure. Q. It was only a week or two after that, I suggest, that you learnt from him that he had a fire in the warehouse, didn't you? A. Yes. Probably over two weeks. Q. But he paid you some money yes? A. Yes, $32,900. Q. A few weeks later there is a fire and he told you he lost all his stock didn't he? A. Yes, and the machines. Q. He said, 'I don't have any money. I need to wait for the insurance claim.' Yes? A. Yes."
There was no re-examination.

Evidence of Mr Ruilin Lin

Mr Lin gave evidence that he first met the accused in 2018. They came from the same part of China and the accused told him that he wanted to set up a business. He mentioned that it was a packaging of milk products business and asked Mr Lin whether he thought it was a good idea.
Mr Lin gave evidence that he did not play any part in the business of Rainbow Sydney, he did not work for them, and they never paid him any money. He gave further evidence that he was given office space within the warehouse by the accused. He was asked: "Q. Was there anything, any benefit to Mr Zeng or Rainbow Sydney, for your use of that office? A. He was thinking if I was there, there might be hometown fellows that would come here that might bring them some business."
Mr Lin drew a diagram of the upstairs office which became Ex U. He had an office upstairs in which there was a computer owned by Rainbow Sydney that he never used. The CCTV hard drive was also installed in his office. He never touched the hard drive at all. He recalled one time when the CCTV cameras were turned off and the accused had told him that it was switched off to save electricity.
Mr Lin gave evidence that he left Australia on 19 March 2019 to go to China and returned to Australia on 16 April 2019. He received a phone call from the accused on 18 April 2019, inviting him to join the accused for some tea. He visited the warehouse later that day on 18 April 2019. He had tea with the accused and asked him how his business was. The accused said to him: "I receive many orders and the business is doing good."
Mr Lin gave evidence that he arrived around 2 or 3 o'clock and stayed for a little over one hour. He was then shown CCTV footage from Ex A, starting at 18:19:11 hours in which he identified himself in the premises. He said he did not do much while he was there, he was always in the living room. He was shown entering going off camera and explained he went to his own room but did nothing there.
Mr Lin denied turning off the CCTV hard drive and gave evidence that he did not know how it is turned off. He saw nobody else turn it off.
Mr Lin gave evidence that on 22 April 2019 he received a telephone call from the accused telling him there was a fire at the warehouse and that it had been badly burnt. Mr Lin asked him how he found out and the accused told him the people next door found out about it and called the police.
Mr Lin gave evidence that he later met the accused "after many days" and said to him: "If there was no production did you switch off the electricity?" The accused said: "Yes, everything was switched off."
In cross-examination, Mr Lin was asked: "Q. Did you play in any part in this business that he was operating from the warehouse? A. Yes, no I was not involved in his business but a little money was involved. Q. What do you mean? A. So this company was short of cash so I did put in $20,000 but I did not - I was not involved in the operation and he also asked me not to get involved in the operation. Q. You didn't say anything to the police about $20,000, sir? A. The police officer did not tell me, did not ask me so I didn't tell him, but the insurance company asked me so I told them. Q. Did you lose $20,000 in the fire? A. Twenty thousand dollars was my stake in it. Q. Did you get the $20,000 back? A. No."
When asked what he used the office for, Mr Lin gave evidence that he didn't do much there. He denied operating some sort of business out of the office and denied ever contacting anyone in China about business for the accused's company.
Mr Lin gave evidence that the accused had given him a key for the door or gate, but not to the warehouse. From January to March 2019 he went there on several days.
Mr Lin gave evidence that he had established an association known as the "Australian Chinese Ancestral and Culture Seeking Association Incorporated". The purpose of the association was for fellows from Chaozhou to socialise and have conversations. It was not for business transactions.
Mr Lin gave evidence that he would watch tv at the office from time to time, but denied ever being involved in the business.
Mr Lin acknowledged that he was shown on the CCTV footage in the premises at quarter past six in the evening on 18 April 2019. He was asked why he was there for three or four hours on that day and answered: "Because I drove there to have tea and Rui was walking around and we would have a chat about the factory as well as about my holidays, afterwards I just drove home."
Mr Lin gave evidence that after the fire he met with the accused, who was devastated by the loss of the factory. He agreed that the accused was very upset about the fire and that he saw him crying over it. That was a few days after the fire and the accused told him that people had been placing orders, but the machines were gone.
Mr Lin agreed that he asked the accused if he turned off the lights, and the accused said, "I turned them all off", and that's what the accused said about electricity.
There was no re-examination.

Evidence of Ms Mimi Qi

Ms Qi gave evidence that she began a relationship with the accused in early 2019. They moved into an apartment together in Burwood in March or April 2019. He told her that he had a business located in Auburn and that his business was doing very well. She was not aware of his financial situation or how much money he had during the relationship.
Ms Qi gave evidence that she had seen the accused gamble at the Casino and that she had gone to the casino with him two or three times.
Ms Qi gave evidence that she had never seen the accused cook with a firelighter, although she had seen him cook with a wok on a gas cooker at home. She was shown a photograph of firelighters and she gave evidence that she had never seen them. Exhibit V was a photograph of a packet of "Essential fire lighters".
Ms Qi gave evidence that on a night in April 2019, the accused made a phone call to her at about 5 or 6 o'clock, telling her that he had gone back to Burwood and had finished working at the company. He asked her what food she wanted to eat for their evening meal and near the end of the phone call told her that he was near her work in Surry Hills. She gave evidence that he arrived at her work with food and told her: "I've been informed by my employee that there has been a fire in the warehouse and I have to rush back there."
She asked him what happened and he said, "I'm not sure". She was not aware that police had conducted a search of their apartment, as they were separated at the time.
In cross-examination, Ms Qi gave evidence that they had been living together for three or four months at the time of the fire. Before he arrived at her work on this night, he had spent half an hour or more on the phone with her. She gave evidence that he was quite calm on the phone, and when he got to her workplace he looked stressed. She gave evidence that it was towards the end of the phone call that he told her "something was up with the company, there was a fire, and he needed to rush then."
Ms Qi agreed that in her statement to police she told them that the accused told her about the fire when he got to her work. She was asked: "Q. He didn't say anything on the phone about the fire, did he? A. He mentioned that there had been a fire at the company at - on the phone call when he was about to reach my work and, and we hung up shortly after and only two minutes later he arrived at my work. He asked me to call an Uber for him to get back to his company."
She agreed that he only stayed at her work at Surry Hills for a few minutes and then left. She did not remember him during their phone call, having to stop the call to take another call and then calling her back.
Ms Qi agreed that in her statement she had stated that when she first met the accused he was nice to her, but that: "His emotions became very unstable after the fire occurred."
Ms Qi agreed that she told the police, before the fire the accused was "upbeat". When asked what she meant she said, "just usual, ordinary".
She agreed that after the fire he became very emotional, he wouldn't talk as much and he would often cry.
Ms Qi agreed that she had told the police: "He told me that he was under stress as a result of the fire and that everything he had contributed to the business had gone down the drain."
Finally, despite the fact that their relationship was over by the time she spoke to police, she agreed that she told the police the truth.
In re-examination, Ms Qi agreed that the accused had become very emotional for a period after the fire. She did not know when the police first started asking questions of the accused about the fire, and when asked whether he told her anything about the insurance company's response to a claim he made, she gave evidence that he said, "it would be approved very soon".

Evidence of Mr Gang Ren

Mr Ren gave evidence via AVL from Shanghai, China. He set up a business called HBW Capital Pty Limited ("HBW") in Australia in March 2019. He was the 90% shareholder, the remaining 10% held by his partner, Wenxi Shang.
Mr Ren had a business in China that involved importing milk powder from Australia. HBW had a bank account with CBA, the account number ending in 052.
Mr Ren saw an advertisement for Rainbow Sydney, stating that it had a warehouse in Sydney with automatic packing machines and in the second half of March 2019, he contacted Rui Zeng by phone. Zeng introduced himself with the name Rain, however, there was no issue that it was the accused that Mr Ren spoke to. He told Mr Ren that he could get suppliers to supply 50 pallets of milk powder product and invited him to the warehouse. Mr Ren visited the warehouse at Auburn on 29 March 2019. A conversation took place in which the accused told Mr Ren that he was looking for a business partner to invest in his business.
Mr Ren gave evidence that he had no intention of investing in Rainbow Sydney, however, he did discuss with the accused how he was going to obtain the milk powder. He was told that the accused had a supplier in Adelaide, however, they did not discuss the price of the 50 pallets of milk powder at that time.
Following that meeting, the accused took Mr Ren to dinner at the Star Casino with two employees. Mr Ren returned to China three days later, and on 16 April 2019, agreed with the accused for him to supply 50 pallets of milk product for a price of $207,936.00. A contract was drawn up between HBW and Rainbow Sydney providing for the goods to be delivered within 15 days.
On the same day, Mr Ren transferred $68,000 from HBW's CBA account to Rainbow Sydney's CBA account.
On the same day, an additional sum of $15,174.40 was paid in Chinese currency into a Chinese bank account in the name of Weixiong Zeng.
On 26 April 2019 the accused advised by WeChat that he had transferred two sums, each of $60,000 to his supplier and sent screenshots of those transactions. The two screenshots dated 17 April 2019 became Ex W.
Subsequently, Mr Ren received a telephone call from the accused in which he told him about the fire at his warehouse. He said: "A small thing had happened and the warehouse was burnt down. It's not our warehouse that was set on fire, but the neighbouring warehouse. I purchased insurance cover from five insurance companies so I have very good coverage. Now, I don't have money left to pay my supplier so I have to break the contract. So you need to pay me 20% more so I can place an order with my supplier. The insurance company will compensate me for the loss with a very large sum of money, far exceeding my loss. You don't need to worry, the compensation money will be paid very soon."
Mr Ren gave evidence that the accused was in a very good mood and Mr Ren asked him: "Why are you not in panic when your warehouse was burnt down?" The accused replied: "I had purchased very good insurance policies with the insurers. You do not need to worry about it. And the compensation money from the insurance companies are much greater than my loss so don't worry about it. There will be a very big sum of money."
Mr Ren gave evidence that he agreed to paying the extra 20% deposit because otherwise the accused would not have supplied him with the goods. An amended contract dated 29 April 2019 was sent to the accused which included the 60% deposit. Mr Ren then sent through $41,587.30. That was paid into the accused's Chinese bank account.
On 1 May 2019, Mr Ren received further receipts from the accused being screenshots of electronic receipts, one in the sum of $20,000 and the other in the sum of $13,000 made on 1 May 2019. The two screenshots became Ex X. They came with a message from the accused which read: "Just now I transferred money again."
Mr Ren gave evidence that at that time he believed that the accused still had his suppliers. On 5 May 2019, the accused told him that he had two suppliers, a Sydney supplier and an Adelaide supplier. He wrote to Mr Ren that the suppliers were asking him to pay the full amount but he did not have enough funds to do that.
Mr Ren gave evidence that the accused wrote again on WeChat on 7 and 8 May that the goods were available at the suppliers' warehouses. He said that HBW now needed to pay the remaining full amount: "Because we need to export the goods and need to complete the formalities. If we do not pay the full amount my suppliers will not organise the export documents for us."
Mr Ren gave evidence that on 15 May 2019 the accused told him that 15 pallets from the Sydney supplier were sent to a warehouse in Auburn. Mr Ren's partner paid a visit to the warehouse but the supervisor told him that there were no such goods. The accused then told Mr Ren to make full payment first and then pick up the goods.
Mr Ren gave evidence that on 15 May 2019 he transferred the sum of $20,793.60 to Rainbow Sydney's CBA account.
Mr Ren gave further evidence that on 16 May 2019 the accused sent a further screenshot of an electronic receipt dated 16 May 2019. It became Ex Y.
Mr Ren gave evidence that on 20 May 2019 the accused agreed to supply the 15 pallets from the Sydney supplier and asked him to arrange for a pick-up truck to pick up the goods. On the same afternoon, he said he could not source those 15 pallets and that Mr Ren would have to pay 100% at a time when 30% of the contract price was still owing. Mr Ren agreed to pay 15% and on 20 May 2019 he transferred $28,310.20 from HBW's CBA account to Rainbow Sydney's CBA account.
On 21 May 2019, Mr Ren gave evidence that the accused said he could obtain the goods at 4pm from the warehouse in Auburn. At 2pm that day the accused told him there were problems with the export documents and he could not supply the goods.
Mr Ren gave evidence that on 23 May 2019 the accused told him there were problems with the export documents for the Adelaide supplier and there were now problems with the Sydney supplier and the Adelaide supplier's documents. He then demanded that Mr Ren pay the full 100%. Mr Ren gave evidence that he paid an extra $31,190.40 from HBW's CBA account to Rainbow Sydney's CBA account. When asked why he made that last payment, he gave the following evidence: "Because, he said the goods were not, could not be exported if I didn't pay, then I wouldn't receive any goods. I'd always believed that there were goods, because he had shown me photos of the goods at the warehouse."
Mr Ren gave evidence that on 27 May 2019 the accused told him he could not supply the goods even though Mr Ren had paid all the money. The accused told Mr Ren that the suppliers would not allow him to collect the goods because they were worried that he would sell the products locally, meaning within Australia.
Mr Ren gave evidence that the accused then suggested that he could sell the 50 pallets back to him. There was some talk about how much they would pay for the product, but every time they agreed on a figure, the accused would go back on his word. This happened three times and the figure in the end came down to $80,000. Eventually he did not pay anything. The accused also suggested that Mr Ren had to pay an extra 20% fee to ensure HBW did not sell the product in Australia. He never received any of the product for which he had paid the money.
In cross-examination, Mr Ren gave evidence that he represented another corporation, ZSHT International, and that company wanted to import milk products from Australia into China. For that purpose, he set up the company HBW in Australia, and HBW was owned by Mr Ren and Wenxi Shang. When asked why, he gave the following evidence: "A. Because we intended to do business long term in Australia and having an Australian company would make things much easier and we intended to procure the goods via the Australian company and then export to China."
Mr Ren denied that he set up HBW as an Australian company because he planned to move himself and his family to Australia.
He gave evidence that he spoke to the accused by phone on 29 March 2019 and agreed that he spoke about the business of obtaining milk products and also about a tourism business. On the same day, he came to the warehouse in Auburn and met the accused. He denied meeting Ruilin Lin on that day. He denied speaking to the accused about the accused trying to organise visas for him and his family on that day.
Mr Ren agreed that he asked the accused: "If we did some business together, would that help my chances of getting a visa?"
He said he would like a visa because he would like to send his child or children to Australia because "I like the country of Australia."
Mr Ren gave evidence that he had dinner at the casino with the accused and two employees, and that he believed Rainbow Sydney was a very successful business.
It wasn't until he returned to China that he spoke to the accused about purchasing milk powder. That was done via a WeChat group, which included the accused and Ming Shang.
Mr Ren gave evidence that in January 2019 he contacted a company, Maxigenes, to order 50 pallets of milk powder, however, they could not supply 50 pallets. He agreed with the accused on 16 April 2019, for the accused to try and get 50 pallets from Maxigenes for the sum of $207,936.00. He denied telling the accused that he wanted him to get adult milk powder because it was half price. He further denied that he was attempting to import adult milk powder and sell it as baby powder. The agreement on 16 April 2019 provided for delivery within 15 business days. The accused gave him Rainbow Sydney's Commonwealth bank account details and on 16 April he transferred $68,000 into that account.
Mr Ren gave evidence that the accused gave him details of a Chinese bank account for him to transfer further monies into. He denied that that evidence was "a total lie". He agreed that the monies paid into the bank in China, together with $68,000, came to a total of $83,174.00. This represented 40% of the total payment. At the time of the fire, the accused had sent him documents purporting to show that the accused had paid $120,000 to order the product from his suppliers.
Mr Ren denied that there was ever regular discussions on WeChat about him obtaining visas into Australia. He further denied that he ever had a detailed discussion with him about getting visas for him and his children. He further denied that the accused had told him that he had been in touch with a migration officer who could arrange visas.
It was put to Mr Ren that when the accused rang him and told him about the fire, he did not say it was a trivial or small thing, which Mr Ren denied. It was further put to him that the accused did not tell him he had five insurance policies, which he also denied. He further denied saying to the accused: "It's going to be okay. You're insured. We can continue to carry on business." Mr Ren said that it was the accused who said those words.
It was put to Mr Ren that after the fire he made further payments to Rainbow Sydney in a total of $140,000. He denied that saying that the total figure paid was $207,936.00.
Following the fire there were discussions with the accused that he would accept $140,000 back, which the accused then dropped to $120,000. He agreed that he told police that in the end he agreed to receive only $80,000 for the product. He gave this evidence: "Q. Can I make this suggestion to you? That, indeed, the discussion was not that he wanted to buy anything from you, but that he was trying to get your money back from the supplier? What do you say? A. INTERPRETER: No. What he meant to say was he would not provide any goods, he would only issue a refund to us which was much lower than the amount than we had paid it to him. Q. He said after the fire, by the end of May, he had no money, didn't he? That the money was with the supplier? A. INTERPRETER: Yes. Q. That he would try and get back for you the $140,000 you had paid him, but he may only be able to get back $80,000? A. INTERPRETER: No, that was not said. Q. Thereafter you ceased any further communication with Rain, didn't you? A. INTERPRETER: Which point of time are you talking about? Q. End of May, after this discussion. A. INTERPRETER: Yes."
There was no re-examination.

Evidence of Ms Kiah Hill

Ms Hill is an investigations officer employed by Star Casino. Through her, the Crown tendered a patron profile obtained from the casino's business records on the accused (Ex Z). She also produced two documents being "Player history audit trails", the first for the period 1 January 2019 to 17 May 2019, and the second for the period 17 May 2019 to 15 August 2019 (Ex AA).
Ms Hill gave evidence explaining the content of those documents. On 17 April 2019 at 5.13pm, they showed that the accused cashed $59,700.00 at the casino. On 29 April 2019, at 21:57 hours, he cashed in $40,000.00. On the last page, the relevant document showed that the total monies paid by the accused were $1,060,684.95 and the figure paid to him for the relevant period was $984,100.00. These were sums estimated by the supervisor of gaming tables based on observations only.
In cross-examination, Ms Hill gave evidence that for the six or seven month period represented by the documents, the accused had theoretically lost $65,000.00. It was theoretical because the figures were based on the best estimate given by the supervisor. In fact, the loss was in the vicinity of $53,000.00 as at May 2019.
Ms Hill gave evidence that in her experience some people came to the casino with cash and left with chips. It was not uncommon for people to do so. For the 14 page document in Ex AA, for the period 22 May to 24 July 2019, the accused's loss was about $76,000.00 or $20,000.00 to $25,000.00 per month.
Ms Hill gave evidence that being a high roller was not dependent on the money that you lost. It was dependent upon the amount of points a gambler received in relation to their membership and you get points from turnover of gaming play. She could not comment on whether the figures in Ex AA were that of a high roller.
There was no re-examination.

The accused's police interviews

Exhibit AC was a transcript of an ERISP interview conducted by police at Auburn Police Station on 23 April 2019. When asked why the second insurance policy was taken out on 16 April 2019, less than a week prior to the fire, the accused said: "'Cause I've signed a contract with the overseas company for purchasing and selling formula. They suggest me to take more, more coverage of the, of the stock, because the formula that they're going to buy will be kept in my warehouse, so they, they suggest to me to increase the value of the, the, the, goods that will be purchased. That's why I, I, I went to talk to the broker, and the broker suggest me to buy this."
The accused told police that he didn't check that the CCTV within the warehouse was working prior to the Easter holiday.
The accused disclosed that Rui Lin was his partner in the business and told police that before he left the premises on 22 April he found that the forklift had no power so he charged the forklift by plugging in the cable. He told the police that he hadn't paid that month's rent because he hadn't received a bill yet.
When asked further about the business, he told police that Hong Zhang owned 10%, Rui Lin owned 30%, and he owned 60%.
The accused was asked whether it was normal practice to turn the CCTV off for holidays. He answered: "No. It shouldn't be switched off, unless, well there's no way. Not possible to switch it off. And we didn't switch it off in New Year and Lunar New Year, and first of January, the New Year, we didn't switch off. But we do the thorough cleaning up before and after the holiday. May, maybe it was switched off during the cleaning by accident, but I'm not sure, maybe. And we clean up everything before and after the break."
The accused denied lighting the fire and when asked whether he could tell police how the fire started, he answered: "I didn't know about the fire. If I take a guess, well, maybe it's something to do with the old cable or the, the, forklift, because nothing was unusual before I left."
On 15 August 2019, the accused was further interviewed by police over approximately 11 hours at Auburn Police Station. He had the benefit of a Mandarin interpreter and on several occasions during the interview he denied any involvement with lighting the fire.
During the interview, the accused was asked about the business of Rainbow Sydney, his dealings with various investors, proposed investors and customers of that business, the banking arrangements for both Rainbow Sydney and himself, his purchase of firelighters on 22 April 2019 and subsequently on 24 April 2019, the execution of a police search warrant at his home on 1 May 2019, the insurance arrangements for the business, his mobile phones, the operations of the business including the CCTV and forklift. He was also asked about his gambling activities at the Star Casino during the relevant period. Many of these matters are to be canvassed below.

Evidence of the officer in charge, Detective Senior Constable Jeremy Muscat

Detective Muscat was recalled and through him were tendered a number of documents referred to during the ERISP interview of the accused. Exhibit AK was a diagram drawn by the accused of a wok burner. Exhibit AL was the receipt dated 22 April 2019, and Ex AM, an extraction report downloaded from the accused's phone.
Exhibit AN was a bundle of documents from the Commonwealth Bank of Australia comprising a list of transactions for the period 1 April 2019 to 4 August 2019. Exhibit AO were two bundles comprising Commonwealth Bank of Australia documents for account ending in 105 for Rainbow Sydney for the period 1 January 2019 to 12 August 2019.
Detective Muscat gave evidence of a further account held with CBA ending in 605, which held a term deposit in the sum of $30,667.32 on behalf of Rainbow Sydney. This was the guarantee for the lease which commenced on 28 November 2018 and which was ultimately paid to Harvey Norman, the lessor, for unpaid rent. A further account with ANZ Bank in the name of Rainbow Sydney, ending in 239, had a zero balance as at 26 April 2019. Another ANZ account in the company's name, ending in 046, had a balance of $20.14 as at 18 April 2019. An account at the ANZ Bank in the accused's name, ending in 016, had a balance of $2.71 as at 18 April 2019. Another personal account of the accused at ANZ Bank, known as an online saver account, had a zero balance as at 18 April 2019.
Detective Muscat gave evidence that the accused's phone was seized on 23 April 2019. It underwent a Cellbrite examination, leading to a forensic download. Two of the documents downloaded were screenshots of receipts which married up with the two documents in Ex W, which the accused had sent to Mr Ren in China. The receipt for the account ending in 094 was for $50, and the receipt ending in 314 was for the sum of $300, whereas the same receipts in Ex W purported to be $60,000 transfers.
The two extracted screenshots became Ex AP.
Exhibit AQ was a google image of the area bounded by Newton Street South and Adderley Street West, Auburn. Detective Muscat gave evidence that the distance between the Scorptec Computer store on Newton Street to the accused's premises was approximately 250 to 300 metres.
Detective Muscat gave evidence that following the accused's phone being seized on 23 April 2019, he attended the Auburn police station on 24 April, and on that occasion had an older style iPhone with him. He sought return of his phone which was refused. The phone had been switched onto aeroplane mode which was standard protocol for police seizing mobile phones so as to disconnect such devices from the internet.
On 22 October 2019, Detective Muscat and another police officer retrieved the accused's mobile phone from the exhibit area and connected it to the internet via police wi-fi. However, upon connecting the mobile phone to wi‑fi, it was remotely wiped, meaning that its contents were deleted. Inquiries made of the Apple Corporation in California led to a document from that corporation which acknowledged a wipe command from the devices' owner Rain, received on 22 April 2019, which would have been likely to have been 23 April in Australia. The clear inference from that evidence was that the accused had requested Apple to wipe the phone to return it to its factory settings on 23 April 2019. The disc of that phone examination became Ex AR, and the document from Apple Corporation, Ex AS.
Exhibit AT was a statement of Senior Constable Yang dated 26 November 2020 which was admitted by consent, which identified the three computer towers located in the premises. Exhibit AU was two photographs of the CCTV hard drive which identified the device as being in the off position.
Detective Muscat also gave evidence about the execution of a search warrant at the accused's premises in Burwood on 1 May 2019. A video of the search was taken. Ex AV comprised three still photographs taken from that video recording showing a Woolworths bag located in the accused's room with a receipt dated 24 April 2019 for Redheads firelighters. A box of those firelighters was also shown in Ex AV2 and a close-up of the same item. Exhibit AW was a photograph of a gas cooking utensil in a plastic case, also found in the accused's room.
Detective Muscat gave evidence that he had reviewed CCTV footage covering the exterior of the warehouse throughout the Easter weekend, from 18 April to 22 April 2019. He gave evidence that he saw the accused leave the premises of unit 6 at about 10pm or 10.30pm on 18 April, and no person came into the premises until the accused arrived on 22 April 2019.
Detective Muscat also gave evidence about experiments he conducted by cooking meat over firelighters, in response to answers given by the accused in his second ERISP interview as to the purpose for which he bought the firelighters.
Detective Muscat gave further evidence of the arrest of the accused on 15 August 2019 and his subsequent ERISP interview.
In cross-examination, Detective Muscat gave evidence that the Essential "fire lighters" referred to in the brief were derived from the Cellbrite examination of the accused's phone conducted on 8 May 2019. Neither of the firelighters purchased on 22 or 24 April 2019 were "Essential fire lighters".
At the time the accused gave his phone to the police on 23 April, he was not told that he was a suspect for the arson of the premises. Detective Muscat gave evidence that he was told that upon his arrest on 15 August 2019.
The accused had been spoken to by police on 24 April at Auburn Police Station when he attended to collect his phone. He had not been told that he was a suspect at the time that he lodged his insurance claim on 25 April 2019.
Detective Muscat was also asked about paperwork he had examined at the warehouse and agreed that some paperwork had been left there. Even as late as August 2019, the accused was not able to physically access the warehouse.
In re-examination, Detective Muscat was asked about documents he chose not to photograph. He gave evidence that he seized documents which he thought might be relevant to the investigation.
That was the close of the Crown case.

The case for the accused

The accused gave evidence that he did not start the fire at the warehouse on 22 April 2019. He gave evidence that he purchased some firelighters at Woolworths at Burwood on the afternoon of the 22nd of April and that he had those firelighters when he arrived at the factory. He gave evidence that he never used those firelighters at the factory or at home, however, he did return home with the firelighters. He subsequently bought a second set of firelighters on 24 April 2019. He was planning a barbeque on that day, and could not remember which spot at home he placed the first box of firelighters. He agreed that on 20 April 2019 he accessed the internet and got a Chinese translation of instructions on how to use firelighters. When asked why he needed instructions, he said: "A. Because the whole package, in English, I did not know what inside. You can check in my phone, you could see I scanned so many things when I was in the shops. What google showed, I did not buy that one."
The accused gave evidence that before making his claim on 25 April 2019, no police officer had told him that he was a suspect for the fire. He acknowledged that the Crown case had established that, on either 22 or 23 April, someone had remotely deleted the contents of the phone he had given to police. He said it was, "not me".
The accused gave evidence that after police seized his phone on 23 April, he went out and bought another one. That second phone did not have any contents concerning his business before the fire.
The accused gave evidence that when he arrived in Australia in 2017, he brought $10,000 to $20,000 in cash on the plane here. When asked whether he had access to other funds from China, he said, "I have relatives".
The accused gave evidence that he established Rainbow Sydney in about November 2018. In the early months of 2019, he was asked whether he attempted to obtain an export licence from Australia. He answered: "I applied from the Post Department of China, because I recall also we were be arriving there from China."
The accused went on to give evidence that: "The smaller package leaving Australia does not require licence. I applied and received a part of licence."
The accused gave evidence that the business repackaged milk products delivered to the warehouse and later he started buying milk powder. The business purchased two packing machines from China at a cost of $200,000.
The accused gave evidence that the bond for the lease of $10,000 was paid by Jennifer Zhang. When asked who paid the $30,000 bank guarantee, the accused said, "the business paid".
The accused gave evidence that Mr Ruilin Lin invested $20,000 for 30% of the shares of the business. When asked where the money came from to buy the machines from China, he said: "My family supported me to start up some business." When asked how much money his family gave him or lent him to start up the business, he said, "About $250,000 Australian dollars".
The accused gave evidence that Jennifer Zhang answered an ad seeking investors. He said that he was not good at English at all and was looking for someone with English skills. The original agreement was that she would buy 40% of the shares of the business for $150,000. She paid slightly in excess of $70,000 and the accused gave evidence as follows: "Q. Was there an agreement with her as to what that $70,000 represented as far as shareholding was concerned? A. INTERPRETER MI: Yes, we went to, to the accountant office, did the calculations and she signed it and agreed to buy 10% of the company share with the $70,000. He - she requested the accountant to agree to that terms of the - she being a director. Remove that clause, then add she purchased 10% of the company shares, and then both of us signed the agreement. Q. For $70,000 for one 10% share? A. INTERPRETER MI: Yes. Q. Well that makes the company worth $700,000, does it not? A. INTERPRETER MI: Yes. Q. Where did that figure come from? A. INTERPRETER MI: That is the valuation of the company, because this company created by me, designed by me, including the machine are dated the - adjustment of changes about that machines. Therefore, I believe that the business, the company, worth that much."
The accused was shown Ex AO and was asked about the payments received from Mr Jack Ren on behalf of HBW. He acknowledged that as at 2 April 2019 the company's bank balance was $362.00 and that HBW deposited $68,000 on 16 April 2019. The maximum at any time in the bank account was on 20 March 2019 in the sum of $75,000. The accused gave evidence that of that sum, $60,000 was deposited on 19 March from a customer paying him for milk powder. When it was indicated that the $60,000 and $60.00 deposit into the business account was a transfer from the accused's personal account, the accused said, "I knew that the money was paid by the customer".
The accused gave evidence that further deposits made in March of $15,060, $15,000 and $14,560, were payments made by customers. When asked why there were no customer payments in the account in April, the accused said, "Because we collect payment at the end of April".
The accused gave evidence that he used cash to both buy and sell goods. He was asked: "Q. When you were paid in cash, did you deposit the cash into the bank? A. Only a small amount. Not much at all, because when I buy things or buy the goods I need to pay cash as well. Therefore I do not operate in a way you said."
The accused gave evidence that since his arrival in Australia he often spent time at Star Casino in Darling Harbour. He disagreed that the document provided by Star Casino indicates that he was gambling there relatively regularly. He could not remember how much he lost at the casino and denied that he had a gambling problem, saying: "No I don't like it too, too much at all. I only went along, went there occasionally."
The accused gave evidence that following the deposit into Rainbow Sydney's account on 16 April of $68,000 from HBW, he withdrew $50,000 of that amount the following day. Later that day, he cashed $59,000 at the casino, changing it into chips. He was asked: "Q. What did you do with the $59,000 of gambling chips? A. INTERPRETER MI: Because we, I changed into chips and then I have it with me. We would be always ready to go for the, go to the supermarket to buy the milk powder. If I receive a notice that the milk powder arrive the supermarket, if I did not have the cash with me it was not possible for me to secure that milk powder from the supermarket. Because here in the bank any one time are only allowed to withdraw $10,000. If you want to withdraw more, want to withdraw more than that you need to make appointment beforehand. Therefore, I - … Q. If you took cash out of the bank and the purpose was to buy milk products what was the need to change the cash into gambling chips? A. INTERPRETER MI: Why I had to withdraw cash, I was not able to buy the milk powder straight away. Need to wait a week or a few days. If I put the cash into my briefcase, would add up that much. But $10,000 only ten pieces coin size. $100,000 only ten pieces in the size of a coin, which is easy for me to put away. Q. You were converting cash into gambling chips, is that right? A. WITNESS: Yes. A. INTERPRETER MI: Yes. Q. At any one time before the fire, what is the maximum value of gambling chips you held yourself? A. INTERPRETER MI: About $100,000 to $120,000. The mobile from the police took away if they look into the August images there was an image of the chips. Q. Were you using chips as a form of currency? A. INTERPRETER MI: Sometimes, yes. Q. Did you pay for supplies with chips from time to time? A. INTERPRETER MI: Yes. Q. Did you receive chips in payment from time to time? A. INTERPRETER MI: No. Q. You always received either cash or bank transfers, is that right? A. INTERPRETER MI: Yes. Q. The cash, largely, you would convert into chips, is that right? A. INTERPRETER MI: Correct. Q. Because it was easier to carry and/or conceal, is that right? A. INTERPRETER MI: Correct."
The accused was asked about his contract with HBW and gave the following evidence: "Q. The $68,000 that Mr Ren paid, or his company paid, on 16 April, on that first page of AO, you have that? A. INTERPRETER MI: Yes. Q. You took that money out and you converted at least $50,000 of it into chips, is that right? A. INTERPRETER MI: Correct. Just my own money about $9,000. Q. Isn't it correct to say that Mr Ren believed that that money was going to be used to buy formula? A. INTERPRETER MI: Yes. Q. Was that money used to buy formula? A. INTERPRETER MI: Yes. Q. Where is the proof of that, sir? A. INTERPRETER MI: I supplied the image to Mr Ren about the goods we bought. 50 pallets, stored in the warehouse, I took the picture. Q. 50 pallets or 50 boxes? A. INTERPRETER MI: 50 Pallets. Q. What happened to those 50 pallets, sir? A. INTERPRETER MI: Because the contract drafting terms that unless 100% money received, then the good can be delivered. That was how, written in the contract between me and him. Also, in the contract the term says the only payment received can be in account under Rainbow Sydney. From $68,000 until other payment and in total he paid $140,000. So, this record clearly showing that figure was $140,000. … Q. Sir, you indicated a moment ago, didn't you, that the 50 pallets that you purchased for Mr Ren were in the warehouse, is that right? In your warehouse? A. INTERPRETER MI: No, not in my warehouse, in my supplier's warehouse. I had two suppliers. Q. So what images, what photographs, did you send to Mr Ren? A. INTERPRETER MI: Just proof, a whole picture of the goods located in a warehouse. And also, the production dates and dispatch dates."
The accused was shown Ex W and Ex AP and asked to compare the two receipts. He gave the following evidence: "Q. Both of those documents bear the same date, correct? A. WITNESS: Yep. Q. Both of those documents refer to Rain, "From Rain"? A. WITNESS: Yep. Q. The account number underneath the word, "Rain" ends in "5736"? A. WITNESS: Yep. Q. That is the same account number on both documents? A. INTERPRETER MI: Yes. Q. One of the documents is for $50, the other one is $60,000, you agree to that? A. INTERPRETER MI: Yes. Q. It would appear, would it not, that someone has changed the receipt for $50 into a receipt for $60,000, true? A. INTERPRETER MI: Yes. Q. Can you explain how that happened? A. INTERPRETER MI: I don't know computer, I don't know to do any changes for those images. Even do a simple table or form, I need my employee to help. Q. Did you use an employee, or any other person, to assist you to change the details on that receipt? A. INTERPRETER MI: I never did this image. Q. Both of those documents in exhibit W, those are the two receipts for $60,000 each. Mr Ren says you sent to him to prove that you had paid this money to a supplier? A. INTERPRETER MI: No. I don't need to give anybody proof I paid to my supplier. Q. Are you able to explain how Mr Ren obtained copies of those receipts? A. INTERPRETER MI: He supplied this two document without explaining that I email to him. He has no proof for those made by me or sent by me. He created those two document himself. Q. Mr Ren did? A. INTERPRETER MI: I don't know. But I didn't send that to him. You can check my emails, or my WeChat."
In cross-examination, the accused was asked about Ex AP as follows: "Q. When you gave evidence before lunch at one point you said you believed that Jack Ren must have created the receipts? A. INTERPRETER TANG: What I said was I didn't sent this form separately to him. This is false. Q. As far as you are aware then Jack Ren had no way of getting access to what is now exhibit AP? A. INTERPRETER TANG: Correct. Q. Would you look at exhibit W on the second page? Do you see up the top it says "82%" near the charging symbol? A. WITNESS: Yes. A. INTERPRETER TANG: Yes. Q. Do you see that it's the same receipt number on that second page of exhibit W as the receipt number on the first page of AP? A. INTERPRETER TANG: Yes. Q. Do you know of any way that Jack Ren would have known to put that receipt number down on exhibit W? A. INTERPRETER TANG: I don't understand that question. … Q. This is a document that you created, isn't it? A. INTERPRETER TANG: This $300 was a payment by me made to this migration agent. Q. This is a document made by you, wasn't it? A. INTERPRETER TANG: No. Q. So we're clear, looking, are you, at the second page of exhibit AP? Are you looking at that? A. WITNESS: Yep. A. INTERPRETER TANG: Yes. Q. This, you understand, don't you, as you've said earlier, was found on your telephone? A. INTERPRETER TANG: Yes. Q. That's a document that was created by you, isn't it? I don't mean falsified, I mean that was found on your phone and is your document? A. INTERPRETER TANG: I have a bank record to show that the $300 was paid to this migration agent. You can find it in my bank statement. Q. Below the $300 on the second page of exhibit AP it says under, "Description", "Qi Mimi", doesn't it? A. INTERPRETER TANG: Yes. Q. That's a reference to your then partner, Mimi Qi, isn't it? A. INTERPRETER TANG: Yes. Q. You were sending $300 to Ms Qi at that stage, weren't you? A. INTERPRETER TANG: I don't know who it was paid to, but it is written here NEWSTRS. This is a migration agent. Q. On the first page of exhibit AP, if you go to that. Above "50", it's got the letters, "H-E", do you see that? A. INTERPRETER TANG: Yes. Q. What's that a reference to? A. INTERPRETER TANG: That is also a migration agent's account."
The accused was shown Ex AN, being the bank transaction details for the two entries on 17 April 2019 of $300 and $50. He agreed that those entries corresponded with the documents in Ex AP. He was asked: "Q. That was transferring money to your partner, Mimi Qi, wasn't it? A. That is a payment for Mimi Qi, for her migration agent."
The accused was then asked: "Q. I suggest that the reason you cannot explain how Mr Ren came up with the receipt numbers on exhibit W, is because he did not create that receipt number at all, did he? A. INTERPRETER TANG: Correct. Q. You falsified the documents, exhibit AP, you falsified those and changed the figures on them, didn't you, the amounts? A. INTERPRETER TANG: I didn't falsity anything. Q. I suggest that you both falsified them and sent them to Mr Ren? A. INTERPRETER TANG: I didn't send it separately to Mr Ren. Do you have our conversation to prove, to prove it? That is the evidence. Q. You sent these documents to Mr Ren with the figures changed, didn't you, the amounts changed? A. INTERPRETER TANG: I didn't. He could have obtained those photos through other channels. He could have obtained it from chat group, the chat group contains many people. But I did not send this fake photo to him telling him that this is the formula I bought. The photos have nothing to do with this order. … Q. --in the chat group, you didn't put up exhibit AP, photos of that, in the chat group did you? A. INTERPRETER TANG: You mean the fake photo? Q. The photos with $50 and $300 on them, the screenshots? A. INTERPRETER TANG: Correct, I didn't send those to the chat group. Q. No, you'd have no reason to show these to anybody, would you? A. INTERPRETER TANG: Correct. Q. You, in fact, I suggest, Mr Zeng, were trying to make Mr Ren believe that you had paid this Adelaide supplier? A. INTERPRETER TANG: I don't need to do this. Q. Did you pay the Adelaide supplier? A. INTERPRETER TANG: I did. Q. Who is it? What is his or her name? A. INTERPRETER TANG: His company name starts with WJ, but I can't remember the rest. Q. Your transferring, you say, tens of thousands of dollars to this company, whose name you don't know, is that right? A. INTERPRETER TANG: When we communicate, we address each other's name in Chinese, never English. Q. Mr Zeng, you are hiding behind the differences in our languages, aren't you? A. INTERPRETER TANG: What I'm saying is the truth. My English pronunciation is poor, so I never remember that."
The accused was asked about his Apple account passwords. He agreed that it was important to guard a password but gave evidence that his family, including his daughter, shared his account. He was asked: "Q. As far as your phone, which was handed to the police on 23 April, are you suggesting that perhaps your family, or your daughter, might have remotely erased your phone, is that what you're suggesting? A. INTERPRETER TANG: We wouldn't do that. I know that the purpose of police obtaining my phone is for the record in it, so it's not possible for me to erase the contents. I go to police station at least once a week. The purpose is to obtain information from my accounts so that I can collect money. So, it's not possible for me to erase the contents. Q. Firstly, Did you say, to any of the other people in your family, "Erase the phone"? A. INTERPRETER TANG: That is very advanced, we wouldn't do that. CROWN PROSECUTOR: I'm sorry your Honour, I didn't hear the-- INTERPRETER TANG: That is very advanced. CROWN PROSECUTOR Q. You know of no reason, do you, why your family would want to erase your phone? A. INTERPRETER TANG: Correct. Q. There is nobody that you know of, do you say, who would want to, to your knowledge, erase your phone? A. INTERPRETER TANG: Including myself."
The accused was asked about the events at Auburn on the day of the fire. He had told the police that on his way to Auburn station he heard sounds like fireworks. It was put to him that those sounds were coming from the direction of the warehouse and the accused said that he "couldn't tell and didn't pay attention". He further said: "At that time, it didn't occur to me that this has to do with my company."
The accused conceded that he had seen the dashcam video in Ex A. He gave evidence that the first time he had problems with his eyes was after the fire when he had a detached retina. When it was put to him that he had no problem at all seeing the flames coming out of the warehouse, he then said that at that time he had severe myopia.
The accused was cross-examined on his interview with police on 23 April, the transcript of which was Ex AC. He could not remember whether he omitted to tell the police anything about the forklift making a "funny noise when he charged it". He gave the following evidence: "Q. You were asked in the interview, page 28 still on exhibit AC at question 254, this question you were asked "Is there been any um electrical faults with charging the forklift in the past?"? A. INTERPRETER TANG: I can't remember that question. Q. Well you told the police that there had been no faults in the past with the forklift? A. INTERPRETER TANG: If there wasn't any problem why would I have reported to forklift company? And also it wasn't done through me. Q. Who reported it? A. INTERPRETER TANG: First time it was reported by my employee, second time by my uncle. Q. By your uncle? A. INTERPRETER TANG: Second time. He promised to come on the 23rd to check. Q. You've just made up haven't you? A. INTERPRETER TANG: Absolutely not, I swear. Q. Is there a reason why you didn't tell the police that on the 23rd, the very next day after the fire? A. INTERPRETER TANG: They didn't ask. Q. But you were asked if there was any electrical faults in the past with the forklift? A. INTERPRETER TANG: They didn't ask that too."
The accused was further asked as follows: "Q. Page 54 of that interview, have you got AC? Towards the end of that interview, on 23 April, question 502, you were asked this by a detective, weren't you, "Can you tell me how the fire started?" A. INTERPRETER TANG: Yes. Q. You said, "I didn't know about the fire"? A. INTERPRETER TANG: I said, "I didn't know how the fire started". Q. You went on, this is what you told the police in the interview, "If I take a guess, well maybe it's something to do with the old cable"? A. INTERPRETER TANG: Yes. Q. "Or the, the forklift"? A. INTERPRETER TANG: Yes. Q. "Because nothing was unusual before I left"? A. INTERPRETER TANG: Yes. Q. So you were thinking in that interview, do you say, about whether the forklift may have caused the fire? A. INTERPRETER TANG: Yes. Q. Yet, you mention nothing in that interview about any buzzing noise being made when you charged it for the last time, did you? A. INTERPRETER TANG: They didn't ask me. Q. You were asked many questions in that interview about the circumstances of the fire, weren't you? A. INTERPRETER TANG: I did answer them. I thought it could be either the cable or the forklift. Q. So, when you were focussing on the forklift, why didn't you say, Mr Zeng, that's right, it made a really strange noise when I charged it that last time? Why didn't you tell the police that? A. INTERPRETER TANG: I told the police that when I was leaving I was charging the forklift. But the funny noises, that had occurred days prior to the fire. I told them, honestly, to the police. I assume it was caused by the forklift, because of old wires."
The accused was questioned about his use of the firelighters. He gave the following evidence: "Q. You told the police in that interview that you had a visit to the seaside with some friends, do you remember talking about that? A. INTERPRETER TANG: Yes, we organised some activity online that day. Q. Did many go? A. INTERPRETER TANG: Yes, over 15. Q. Now who ended up doing the cooking at that seaside gathering, did anybody cook? A. INTERPRETER TANG: We didn't cook anything, we only had some picnic, because there wasn't enough time planned. Q. How long does it take to cook with a firelighter to get that heated up? A. INTERPRETER TANG: Takes, maybe, three to five minute to cook beef ribs only. Q. You never cooked like that with Mimi, did you, when Mimi was there using firelighter? A. INTERPRETER TANG: Which date are you referring to? Q. Anytime. You never cooked using firelighter with Mimi there? A. INTERPRETER TANG: Her working hours are from 10am or 12pm to 12am, so we rarely cook at home. Q. But when you cooked at home you had a gas cooker in the kitchen, didn't you? A. INTERPRETER TANG: Yes. Q. So, there was no use for firelighter there, was there? A. INTERPRETER TANG: Like I said in the interview, those two cooking facility cook differently. Q. You say that the firelighter - that you took firelighter to the seaside on that day where you met up with your friends from the internet? A. INTERPRETER TANG: And beef. Q. Sorry? A. INTERPRETER TANG: And beef. And beef. Q. And beef, but you didn't end up cooking, is that right? A. INTERPRETER TANG: Like I said there wasn't sufficient time. Q. So, did you take the firelighter home? A. INTERPRETER TANG: I can't remember that. Q. Can I suggest that you didn't take any firelighter home apart from the firelighter which was found right under your desk in your room unopened? A. INTERPRETER TANG: Can you say it again? Q. I suggest that you didn't take any firelighter home apart from the firelighter, which the police found unopened right under your desk? A. INTERPRETER TANG: On the 1st of May when police were searching my house I was outside of home. Police only searched the once and never came back. So, what you said in regards to bringing it home or not has nothing to do with this. Q. So, on the day that the police searched your apartment, that's the day that you say you were at the seaside, isn't it? A. INTERPRETER TANG: Yes. Q. So, do you say you got the firelighter at the seaside, but you don't use it because you don't have time to cook, is that right? A. INTERPRETER TANG: Yes. Q. So, I assume, do I, that you took the firelighter home from there? A. INTERPRETER TANG: Say it again? Q. Did you take the firelighter home from the day at the seaside? A. INTERPRETER TANG: I can't remember. That was on the 1st of May."
The accused was asked about the hard drive of the CCTV set up in the warehouse. He gave the following evidence: "Q. Mr Lin, you say had nothing to do with the business and the running of the business, is that the truth? A. INTERPRETER TANG: He's not involved in the business operation. Q. He would then, to your knowledge, have no interest or reason to turn off the CCTV, would he? A. INTERPRETER TANG: Correction, the CCTV was not turned off. In police report it states the wires were loose, not the switch was off. Q. Did you hear my question? A. INTERPRETER TANG: Your question is wrong. Q. I'm asking you whether, to your knowledge, Mr Lin would have any reason to turn off the CCTV? A. INTERPRETER TANG: He doesn't need to. Q. He'd have no reason to that you're aware of, would he? A. INTERPRETER TANG: Correct. But if he accidently bumped on the desk which caused the cables to become loose, and it will stop working. Because the hard drive was placed on top of a cabinet. When he left the desk, he could have bumped onto the cabinet, which could have resulted in loose cables, including myself, who could have done that. Q. You were asked about the hard drive and you simply said it might have been the cleaners, when the place was being cleaned. A. INTERPRETER TANG: That's the same thing. When Mr Lin cleaned the desk or bumped onto the cabinet, that could have caused the cables to become loose. That is to say the cables were loosened accidently. It was not the CCTV turn off by someone. That is important to me. Q. But Mr Lin was just there having tea with you, wasn't he? A. INTERPRETER TANG: And we talked about travel matters. Q. You turned off the CCTV hard drive because you planned to set fire to the factory warehouse, didn't you? A. INTERPRETER TANG: I didn't need to do that.
The accused was asked about taking out fire insurance for the first time six days before the fire. He gave the following evidence: "Q. That's the same reason, I suggest, the same motivation for taking out fire insurance for the first time six days before the fire? A. INTERPRETER TANG: Like I said, because my business was doing better I had more stock coming in, and that's why I purchased that policy. And also the policy was chosen by my agent, it was not a designated one by myself. Q. You signed for it, you authorised the policy, it's your decision not the agent, true? A. INTERPRETER TANG: I told the agent the assets configuration in my company and I asked him to buy this for me. Q. Not content with that insurance the next day you took out business interruption insurance, didn't you? A. INTERPRETER TANG: Those were purchased at the same time. That is all chosen by the agent. Based on my company assets. Q. You paid the money for the insurance, didn't you? A. INTERPRETER TANG: I paid a manager at the agency. Q. You paid for it, is it fair to say you didn't just pay the money for it without knowing what coverage you were getting? A. INTERPRETER TANG: He told me in Chinese that what was covered was my company's machinery and goods. After hearing his explanation I took out the policy. Q. You knew that it was covering fire though didn't you? On 16 April you knew that that was going to cover fire, didn't you? A. INTERPRETER TANG: Fire, water or machinery damage, they are all covered. If my machinery stops, stops working that is also covered. If the machinery stops running without fire or water, that is also covered."
The accused was questioned about his visit to Star Casino on 17 April 2019, when he cashed $59,700 for chips. He was asked: "Q. You were gambling away the money that Mr Ren from HBW had sent you. That's the truth of it, isn't it? A. INTERPRETER TANG: You can't say that. He, that is isolated from my living expense. You can see that the cash I used to exchange for the chips is more than the money I withdrew. Q. You went there with - you cashed in $59,700? A. (No verbal reply) Q. So you transferred, that same day, $12,000 from the Rainbow Sydney account, into your own account, hadn't you? A. INTERPRETER TANG: From what account? Q. Rainbow Sydney, Commonwealth Bank? A. INTERPRETER TANG: I can't remember. But my company account pays me salary. That is reflected in my accounting report. Q. This salary, then, is that a regular arrangement where you get paid on a particular time of the week, fortnight or month? A. INTERPRETER TANG: The employees are. Q. But you're drawing a salary, are you saying, from the Rainbow Sydney account? A. INTERPRETER TANG: Yes. Q. So, is that salary drawn at a particular time of the week, fortnight or month, or is it just when you feel like taking the money? A. INTERPRETER TANG: Whenever I need the money, my company account pays me salary. Q. When you took the $12,000 across to your bank account on 17 April, was that because you needed money? A. INTERPRETER TANG: That is the salary. Q. Is that because you needed some money at that time? A. INTERPRETER TANG: I can't remember, but it's normal for the salary to be paid. That is reflected in the accounting statement. Q. Is it reflected in the bank statements with any particular regularity? A. INTERPRETER TANG: The payment of salaries, including to the employees, they are not on a particular date of a month."
The accused was further cross-examined about whether he had told his employee, Daniel Yang, that he would be paid his wages by the end of April, because he did not have cash to pay him, before the fire. The accused denied that, saying that he only told Mr Yang that after the fire. Notwithstanding that, he had told the police in his interview on 15 August 2019 that he was planning to make Mr Yang's salary payment of $2,800 at the end of April because the company needed money for purchasing machines. When asked whether he was telling the police the truth, he said: "Yes, we planned to pay the wage at the end of April, but because of the fire. So I told my employee as soon as the company's re-established we will pay them the wages. I also told him from now that he doesn't have a job till our company restarted, I will pay him the wages for not being able to work as well."
The accused agreed that before the fire he did have the money to pay Mr Yang if he wanted. He denied that as at the date of the fire he owed Daniel Yang any money because, "it wasn't time to pay the wages yet". The accused gave evidence that Mr Yang was wrong in saying that the accused told him he didn't have any money to pay the wages before the fire.
The accused denied that he owed Mr Boyu Zeng $32,900 at the time of the fire. He said in relation to that money, which he said was $40,000, "our company owes him not me". He further denied that he owed Jennifer Zhang money and that the $70,000 she paid him represented 10% share in the company. He agreed that he had given evidence in chief that the value of the company on that basis was $700,000 and when it was put to him that that valuation was not based on any valuation by a qualified business accountant, he said, "you cannot think so". He was then asked: "Q. I'm asking you, that is not a valuation which was made by a qualified business accountant or professional, was it? A. I don't know."
It was put to the accused that he was making that evidence up, which he denied, saying the company was worth that value.
The accused was further cross-examined about the receipts he sent Jack Ren, being screenshots of two payments of $60,000 (Ex W). He was asked: "Q. You said you didn't put it up on any chat conversation, didn't you? A. I just tell you now very clearly that I did not send him that information." He was asked further: "Q. So, we'll come back, when you said earlier, when I was asking you about how Mr Ren might have got hold of those documents, according to what you said yourself yesterday, it could not have been from the chat group, could it? A. INTERPRETER: I told you already he can, he can get the information from the chat group. It's actually quite a simple question. So if he thinks that I sent those photos to him is a proof of me purchasing the goods. He could get the chatting history of me sending those photos, telling him both. It is a - it is the most practical allegation, instead of having this photo with my girlfriend's name and talking things like this. Q. See those receipts with $300 and $50, those two, they weren't in the chat group for him to get, were they? A. INTERPRETER: Correct. Q. It's just a mystery, is that right? A. INTERPRETER: I told you, I explained, he can get those information from the chat group. So, if you bullied him, you can ask him to provide the history of me sending those information to him. That's the best evidence. A. WITNESS: Thank you."
It was put to the accused that, prior to the fire, he didn't need money to buy machines for the express delivery side of the business. He gave evidence that he withdrew the sum of $50,000 on 17 April 2019, "for the operation of the company". He agreed he told the police that he had kept that money with him as "a cash flow". It was put to the accused that he had told the police (At Q927 of MFI#4), that at the end of April he needed a big amount of cash to pay for the machines, to pay for the express delivery business. When asked whether that was the truth or not, he answered: "I should - I, I must have said things that I used the money to keep the operating of the company, including the machine and the formula, it's mainly similar to what you said." He went on to say that he told the police the truth.
The accused was cross-examined about converting the sum of $59,700 into chips at the casino, and his evidence that they were to be used in the business for buying milk products from the supermarket. He gave the following evidence: "Q. Accepting that, what was the point of having your money in chips, so far as buying from a supermarket? A. INTERPRETER: First of all, it's not me who buy the milk powder from the supermarket. There are many people who go to market, supermarket, to buy the milk powder. But that organisation is organised by my supplier. I don't need to do that. I just need to prepare enough cash to pay to my supplier and my supplier will give those people money and they will purchase. It depends on the supermarket stock. When the stock come to the supermarket then - when - that's when they go and buy. Q. Woolworths is not going to accept chips, or supermarkets don't accept casino chips do they? A. INTERPRETER: Correct. Q. These milk powder and baby formula, that moves very quickly off the shelves, doesn't it? A. INTERPRETER: Yes. Q. So, the quickest way to get that purchase from the supermarket would be to have the money in Australian currency to be accepted by the supermarket, wouldn't it? A. INTERPRETER: Sure, that's correct. That's why we prepare the cash. Q. But you could have money transferred electronically like that, couldn't you, quick as a flash? A. INTERPRETER: You mean transfer to many people, more than 100 people? Q. To those purchasing on your behalf? A. INTERPRETER: I told you, I don't do the organisation stuff. I pay for the supplier and they organise things. I just need to prepare enough cash. Q. So, when you say cash, do you pay your suppliers in chips? A. INTERPRETER: Chips or cash. So, if, if he needs it he can just use the chips to exchange for the cash. It's less than five minutes. So, you know, 1,000 - sorry, $100,000 or $200,000 you can exchange for money, just than - less than five minutes, or ten minutes. Q. These people, did you say earlier about 100 people would be purchasing, going to the supermarket? A. INTERPRETER: Yes. I pay to the supplier, that person, and that person organise people to buy the powders, and you can see them from the news. Q. So, to your knowledge, these people would have to, if they're paid in chips, they'd all have to go to the casino and turn that into cash, is that right? A. INTERPRETER: I'm saying I pay to this organiser, the person who's like a team leader. He or she will organise things. So, if I happen to have cash with me I would just pay that person the cash, but if I only have chip with me and I don't have time to change chip for the cash, I would just pay him - that person chips. Q. But you took the cash in the first place. You're the one who turned it into chips, aren't you? A. INTERPRETER: So, if this money - so, if there's - within one week there's no stock, or I'm not sure whether there will be stock, I will change the money into chips."
Finally, it was put to the accused that he had lied to the police on a number of occasions and that he had lied to the court. He denied lying to the police, saying, "I told them what I knew". He was then asked: "Q. You lied to them and you lied to the Court about cooking with this firelighter, cooking the meat with the firelighter? A. INTERPRETER: Do you have proof? I told you I have food at home and also the cooking equipment. Food in the fridge and the food in the rubbish bin, including the equipment in the balcony. Those are the things that I actually use."
There was no re-examination.

The Crown case

Prior to the Crown address, counsel for the accused conceded that there was clearly sufficient evidence for a finding for a motive on the part of the accused existing at the time of the fire, as well as opportunity for him to light the fire.
The Crown relied on the following 11 circumstances to establish the Crown case (MFI#7): 1. The accused was the last person on the premises. 2. The accused left a matter of minutes before a large fire had developed. 3. There were multiple seats of fire. 4. The accused purchased firelighters hours earlier. 5. The accused took the firelighters to the warehouse. 6. The absence of fuel load on the floor of the warehouse. 7. The forklift charger could be excluded as the source of the fire. 8. The accused took out insurance - the nature and timing of the policies. 9. The financial distress of the accused as evidenced by debtors, financial records and casino records. 10. The evidence as to the turning off of the CCTV hard drive in the premises, and 11. The accused's translation of firelighter instructions two days before the purchase of the firelighters and the fire.
In addition, the Crown relied on evidence as to the post-fire conduct of the accused, both as evidence as to his consciousness of guilt, and evidence supporting an adverse finding as to his credit.
The Crown first addressed the insurance policies taken out by the accused, the first through AIG for public liability insurance and third party property. The Crown referred to Ex K which were the emails produced by Ms Cai from Eternity Insurance and Financial Services. Those emails made it clear that on 16 April 2019 the accused had phoned the insurer, following which, fire insurance was taken out over the premises. On the following day, 17 April 2019, he took out additional business interruption insurance.
It was the Crown case that the business of Rainbow Sydney was plainly in financial distress in April 2019. The Commonwealth Bank statements of the accused and his company, Exs AN and AO, demonstrated that as at 16 April the business had a balance of $3.56 in the bank. On that day, it received a payment of $68,000 from HBW, out of which the accused had immediately transferred $12,000 to his personal account. He then withdrew $10,000 in cash from that account, together with $50,000 from the Rainbow Sydney account. The following day he paid the insurance broker $3,566.80 for the new policy.
The casino records, Ex AA, reveal that on the same day, 17 April 2019, the accused exchanged $59,700 into chips at the casino.
Exhibit AA also revealed that on 16 May 2019 the accused exchanged $19,800 into casino chips, the day after HBW transferred $20,793.60 into the Rainbow Sydney account. On 20 May, HBW transferred $28,310.30 to the Rainbow Sydney account, following which, on 22 May the sum of $25,000 was withdrawn. On 26 May HBW paid $31,190.40 to Rainbow Sydney and the following day the accused exchanged $20,000 at the casino into chips.
It was the Crown's case that, notwithstanding the accused's concession that motive was established, a significant degree of financial distress was evident in the business, and the accused was aware of it.
The Crown referred to the evidence of Jennifer Zhang as to the agreement she made with the accused to purchase 40% of the business for the sum of $120,000. Having paid $70,222.44, she changed her mind and sought the return of her money. The Crown submitted that the court would not accept the evidence given by the accused that the $70,000 paid by Ms Zhang represented 10% of the company's "valuation" (namely, a total valuation for the business Rainbow Sydney of $700,000).
The Crown also referred to the evidence of Boyu Zeng, his payment of $72,900 sent to Rainbow Sydney on 19 March 2019 and the fact that upon demand for repayment, he received $32,900. Thereafter, the accused told him that he had lost his identification and the bank had frozen the account. The accused continued to tell Mr Zeng those same excuses whenever he requested the money he was owed back.
The Crown submitted that whilst the accused appeared during his record of interview to have an answer for everything, the one thing he really did not have an answer for were the fake receipts in Ex W. When compared with the documents in Ex AP, the Crown submitted I would be satisfied that the receipts were fake and they were forwarded to Mr Ren. Two significant matters flowed from that. First, the accused had not in fact paid the mysterious Adelaide supplier as he contended. Secondly, it was relevant to the accused's credit that the evidence he gave in respect of the receipts was clearly a lie.
Similarly, the evidence given by the accused as to the use he made of the firelighters for cooking was a lie and could not be accepted.
Another factor relating to the financial distress of both the accused and Rainbow Sydney was that he owed Harvey Norman a substantial amount for rent as at the date of the fire.
The Crown also relied on the evidence of the CCTV hard drive being turned off at 6.36pm on 18 April 2019, at a time when there was no cleaning going on in the warehouse premises. Rather, the CCTV footage showed that just prior to it being switched off, both the accused and Mr Ruilin Lin were in the upstairs part of the premises. The CCTV footage of the factory floor was also significant at that time, because there were expanses of bare floor consistent with the absence of any fuel load. That evidence was consistent with Mr Mealor's evidence, that when he arrived and began fighting the fire, he was able to observe six separate seats of fire.
The expert evidence of Mr McKay demonstrated a timeline which did not fit with the hypothesis that the forklift or battery charger had caused the fire. Mr McKay described the fire demonstrated in the dashcam footage in Ex A within four minutes of the accused's leaving the building, meant that a fire to be caused by electrical failure would be "highly improbable, if not impossible" (see Ex H). The Crown further referred to the expert evidence of Mr Schweickle in which he stated that the whirly-bird ventilation system inhibits or slows down the lateral spread of smoke and hot gases, which meant that this fire was not allowed to proceed uninhibited, but rather, there was a system in place to slow it.
The Crown submitted that I would reject that the fire was caused by the forklift or charger for a number of reasons. In Ex AC, the interview undertaken by the accused with police the day after the fire, he referred at Q476 to the forklift and suggested that there was no contact between any fuel and the forklift that may have allowed for the fire. The Crown referred to the photograph of the inside of the charger box lid which still had paint affixed to it (see Ex C at p 27 of 32 and Ex G). Mr Schweickle's evidence was that if there was a fire inside the charger, he would expect the paint to have been burnt away. The Crown also relied on the evidence of Mr Lualhati as to the fuse system contained within the charger and the thermal protection circuit which would counteract any fire within the charger, as well as the absence of any fuel load within it.
The Crown referred to the accused's interview in Ex AC where he did not mention any noise or sparking evident during the charging of the forklift. The evidence of Mr Conti from Mars Forklifts, demonstrated that there was one call out only in respect of the forklift which related to a problem with the tyres. The Crown submitted that the evidence the accused gave concerning an ongoing problem with the forklift making a noise whilst charging, was a lie.
Similarly, the evidence the accused gave in answer to police questions in his ERISP interview on 15 August 2019, that he heard explosions, having left the premises, which he believed to be fireworks, would be contrasted with Ex A which showed the accused walking down Newton Street South, away from the premises within a few minutes of leaving. Further, the CCTV footage showed that when he walked out of the warehouse, the accused turned around, appearing to look back at the premises. The Crown submitted that that fitted in with the accused having some interest in what was going on inside at the time, in circumstances where he must have known that the fire was behind him. If in fact he knew that the forklift charger had been giving them problems, he would go back and check.
The Crown referred to the evidence of Constable Yang in Ex AT. He examined the three computer towers seized from the offices and an examination revealed that there were no computer log-ins at all on 22 April 2019. It was submitted that that fitted in because the accused was not there to do computer work, he was there to set fire to the premises. The statement to the police that he did use the computers was properly characterised as evidence of consciousness of guilt.
It was submitted that the failure of the accused to turn back gave rise to an inference that he knew that he had lit the fire.
The Crown submitted that the fact that two days prior to the fire on 20 April 2019, the accused had downloaded a translation of firelighter instructions was another circumstance to be taken into account. On the afternoon of the fire, he bought firelighters and only firelighters from Woolworths. This all added up to a strong circumstantial case.
The Crown case was that for a business which had not been long established, the bank accounts clearly showed that it was not doing well. The accused owed Daniel $2,800 in wages and told him he did not have the cash to pay him prior to Easter. When the cash was received on 16 April, he did not pay Daniel, but rather, took a substantial amount of money, $59,700, to the casino to cash in for chips. The fact that he took out insurance in the same circumstances was beyond being suspicious. Four days before the fire, prior to the Easter break, he turned the hard drive of the CCTV off, when he was the only person who had an interest in turning it off. On the day of the fire, the accused then purchased the firelighters. The evidence established that no other person visited the premises over the Easter weekend, then on the day of the fire, the accused arrived at the premises with the firelighters and several hours later emerged, and within minutes the warehouse was up in flames. The court would be satisfied that the accused had used the firelighters to cause the fire and that is why the firelighters had never re‑surfaced, they had been consumed within the fire.
The Crown submitted that the court would be satisfied beyond reasonable doubt that all of the elements of the offence were made out and the accused deliberately lit the fire. He did so to get the insurance monies and he did so with a view to making a gain for himself.
The Crown submitted that the evidence of the accused telling Daniel Yang what to say to the insurance investigator, Ms Russell, did not amount to consciousness of guilt, but rather, that evidence went to the credibility of the accused, namely, that he was telling other people to tell lies.
Finally, the Crown submitted that there was no other reasonable hypothesis, based on all the evidence, consistent with the innocence of the accused.

The accused's case

Counsel for the accused submitted: "That either this whole escapade was a stunningly amateurish attempt to destroy his own business premises for money, if we're turning off CCTV cameras, if we're taking firelighters, if we're lighting fires and we're walking away, letting it blaze on, then it had to be found, and it was six days after he had increased his insurance. The only other possible alternative, and I'll say that because of the material that the experts give, is that indeed what it was, was sadly, a perfect storm. Yes, he needed money, yes, he had a problem with gambling, yes, he upped his insurance, but was the actual fire itself lit by him? That is what the Crown has to prove beyond reasonable doubt. I don't wish to be trite, but not that he did not light the fire, as your Honour would tell a jury."
In relation to the evidence that there were six separate seats of fire within the warehouse, Counsel referred to the evidence of Mr Mealor in cross‑examination in which he said that the premises were dark and what he saw was six locations where material was burning. In those circumstances there was room for the possibility of radiant heat from the major fire spreading throughout the warehouse, and/or the drop-down effect from the skylights which would cause fires in different locations.
It was submitted that the greatest area of fire was in areas F5 and F6, as indicated in the evidence of Mr Schweickle. Counsel asked rhetorically, "How is it that the area where the forklift and charger are located is clearly the most damaged part of the warehouse?" It was submitted that Mr Schweickle was not dismissing out of hand any possibility that if there was an intense fire in one part of the warehouse, that the heat from it would not be sufficient to cause all of the fire. It was Counsel's submission that if there was drop‑down from the skylights, which were the first items in the roof to burn, that drop‑down could have ignited other small fires. It was relevant that no accelerant was found by the detection canine, notwithstanding that there was a possibility that any accelerant was fully consumed in the fire.
Counsel submitted that the evidence established that the experts were not able to examine the entire location within the warehouse because of safety risks. Whilst Mr Schweickle had expressed an opinion that the bricks that had fallen from the walls were not hot enough themselves to cause fire, however, he did concede that there was a possibility that radiant heat from the fire had ignited cardboard in the area of the metal racking. At the time of Mr Schweickle's examination, the forklift and charger had been moved, however, the damaged floor mat of the forklift was of significance, given that it was on the left-hand side of the forklift, closest to the charger. That was important because it was a place where the fire could possibly have started, whereas the steel pallet rack was on the other side of the forklift. It was submitted that something between the forklift and the charger had lit, thereby causing damage to the mat on the floor of the forklift. It was submitted that that was positive evidence that the court could use to determine a potential point of ignition of the entire fire, namely, at some point between the charger and the forklift.
The Anderson plug was the plastic device used to join the cables between the forklift and charger. It was submitted that Mr Conti had given evidence that if either or both of the plugs had been damaged, it could short. Mr Conti could not give evidence as he was not qualified to, as to the possibility of that sparking causing cardboard boxes to start burning.
It was submitted that the evidence demonstrated that the cables had been cut and Counsel further submitted that there was some difference of opinion between Mr Sutarov and Mr Schweickle as to a number of matters. Mr Sutarov, for example, identified a number of personal items left by the accused at the scene of the fire, including a computer, personal photographs, a phone, company paperwork, a television and personal items. It was submitted by Counsel that the accused had the opportunity to remove those personal items if his plan was to light the fire.
Counsel submitted that it was unclear whether there were indeed six deliberately lit fires, or that there was one major fire, and that radiant heat and/or drop-down could have caused other parts of the warehouse to ignite. He referred to the evidence of Mr Sutarov in respect of the pallets near the roller door that were burnt and the concession made by him that they could have burnt by way of radiant heat.
Similarly, Mr Sutarov conceded that the charger was a potential cause of the fire. He also gave evidence that, in the event of a short at the point of the Anderson plug, that could cause a fire.
If the court accepted that the accused did connect the charger to the forklift by use of the Anderson plug, this evidence gave rise to concerns as to the Crown case. There was no evidence one way or the other as to whether either of the two packing machines played a role in the possible ignition of a fire.
Whilst Counsel conceded that the predominance of the expert opinion was that this was a deliberately lit fire, there are a number of realistic possibilities that arose on the evidence that this fire may have indeed self-ignited. It was conceded that the issue of the timing and flames out of the roof were of importance, however, it was submitted that: "There may have been a small conflagration at the back of the warehouse at the time that my client left the warehouse and it would not have taken a great deal of time had one or two of the skylights failed for that to become a major conflagration. That in my submission is a distinct realistic possibility based upon the expert evidence."
When asked how that hypothesis fitted the timeline, it was submitted: "The question really is whether there is a timeline. If it is suggested that my client lit the fire and then left the factory, does it only take two or three or four minutes for any conflagration he lights to exhibit flames through the ceiling? May not indeed there have been a simmering fire for some time whilst my client was still in the warehouse? That, for whatever reason, be it the whirly‑gigs on the ceiling that take out the heat, whether there was indeed no noise coming from anything, but that there was a small fire in or near the charger, in or near - not in, but near the charger and/or the forklift, and I'm looking in particular to the issue of this Anderson plug and the loss of evidence concerning the cabling, that that fire may had indeed have been going for some little while."
Counsel then referred to the large pile of cardboard on the metal packing rack and there may have been a draft within the premises once the skylights failed that led to the fire being seen from outside. It was submitted the issue of the timeline per se was based upon the fact that the accused lit the fire, immediately left and then four or five minutes later there were flames coming through the roof. It was submitted: "That this was not a likely scenario and that far more likely there may well have been a minor unrecognised fire for some time in the cabling, in the boxes near or under the cabling, so that it took some time for it to properly take hold, by which time my client's left, and there is then suddenly a major conflagration."
Counsel referred to the evidence of Daniel Yang as to the boxes that were emptied and left in the back of the building as providing an adequate fuel load.
It was further submitted that the message sent by the accused to Mr Yang at 7.15pm on the 22nd, to the effect that he was to be at the premises at 10.30am tomorrow to clean the premises to welcome the new team, was inconsistent with the accused lighting the fire. It was consistent with the accused not being aware at that time that there was a fire.
Finally, the police officer spoke to the accused on 23 April 2019 and seized his phone. The accused was not identified as a suspect in the fire and he was not advised that he was a suspect until August 2019. Immediately after the fire, however, Mimi Qi, gave evidence of a complete change of personality on his part. He was emotional and his behaviour, in Counsel's submission, was not consistent with a person who indeed deliberately destroyed his business. On the basis of all of the evidence, the court would be left with a reasonable doubt.

Directions of Law

Section 133 of the Criminal Procedure Act 1986 provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any case must include the principles of law applied by the Judge in the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts, only if such an inference is a rational inference.
I give myself the following directions when considering all of the evidence: 1. Direction - Circumstantial Evidence - Strands in the Cable The onus of proving Rui Zeng's guilt in respect of the charge which it brings against Rui Zeng is on the Crown. It must establish his guilt beyond reasonable doubt. This means that, in respect of each of the essential legal ingredients or elements of the charge, I must be satisfied beyond reasonable doubt that the Crown has established its case before I would be entitled to bring in a verdict of guilty of that charge. My function as the judge of the facts in this case extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts that I find established. "Inference" and "conclusion" mean the same thing. I will use the word "conclusion" to refer to the line of reasoning that the Crown intends to prove by its circumstantial case. In this case, the Crown relies wholly on what is called "circumstantial evidence". In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of the further fact. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the fact-finder is asked to reason in a staged approach. The Crown first asks the fact-finder to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The fact-finder is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that the accused person is guilty of the offence charged. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of Rui Zeng, or whether there is any explanation for that particular fact or circumstance which is inconsistent with Rui Zeng's guilt. The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Rui Zeng is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find Rui Zeng not guilty. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict Rui Zeng, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there any other reasonable conclusion arising from those facts that is inconsistent with the guilt of Rui Zeng, the circumstantial case fails because I am not satisfied beyond reasonable doubt of Rui Zeng's guilt. Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. In order to satisfy myself beyond reasonable doubt of Rui Zeng's guilt of the offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that Rui Zeng is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown's circumstantial case has failed. 1. Direction - Expert Witness Evidence In this case, Mr Wayne Schweickle, Nicola Sutarov and Robert McKay have been called as expert witnesses. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion within his or her particular area of expertise. Other witnesses may speak only as to the facts, that is, what they saw or heard and are not permitted to express their opinions. Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where the opinion is based on that witness's specialised knowledge. Expert evidence is admitted to provide the court with scientific information relating to fires, and the investigation of causes of fires. The expert evidence is before me as part of all the evidence to assist me in determining whether the fire was deliberately lit by the accused. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of Mr Wayne Schweikle, Nicola Sutarov and Robert McKay, I do not have to act upon it. This is particularly so where the facts upon which their opinions are based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. 1. Direction - Lies used as Evidence of Consciousness of Guilt The next direction I must give myself concerns the evidence relied on by the Crown of the lies allegedly told by the accused to the police. First, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what he said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue. If I find that Rui Zeng made the statements I have just referred to, and I find it was a lie or lies, then I must give myself a direction about the care with which I must approach the task of deciding what significance, if any, it has. I may take any lie into account as evidence of Rui Zeng's guilt but I can only do that if I find two further things which I will refer to shortly. When I say I can take it into account as evidence of Rui Zeng's guilt, I am not suggesting that it could prove his guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found Rui Zeng told a lie that this finding can prove the guilt of Rui Zeng by itself. Apart from the fact that Rui Zeng made the statement or statements and that they amounted to deliberate lies, before I can use any lies as some evidence of Rui Zeng's guilt I must find two further matters proved. First, I must find that what Rui Zeng said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that Rui Zeng committed. It must relate to some significant circumstances or events connected with the alleged offences. The Crown says it is relevant because it amounts to a complete denial that Rui Zeng lit the fire in the warehouse on 22 April 2019. Secondly, I must find that the reason Rui Zeng told those lies was because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offence for which he is now on trial. I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling lies, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence. If I think that any lies may have been told for some reason other than to avoid being implicated in the commission of the offence for which Rui Zeng is now on trial, then it cannot be used as evidence of Rui Zeng's guilt. If that is the case, I should put them to one side and focus my deliberations upon the other evidence in the case. Before I can use what Rui Zeng said about the alleged offence as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lies related to some significant circumstances or events connected with the alleged offence. I must find that the reason Rui Zeng lied was because he feared that the truth would implicate him in relation to the commission of the offence for which he is now on trial. The defence case in relation to this issue is the accused did not lie to police, and that he did not deliberately light the fire at the warehouse on 22 April 2019. 1. Direction as to lies by the accused - Zoneff v Queen Direction The Crown suggested that the accused lied in his interview with the police. The Crown has submitted that the answers to questions 132, 229-230 and 238-239 were lies. Whether the accused did in fact lie is a matter for me to decide. To decide that a lie was (or lies) were told, I must be satisfied that the accused said something that was untrue and that at the time of making the statement, he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie. If I decide that a lie was (or lies) were told, I cannot use that fact in support of a conclusion that the accused is guilty. A lie cannot prove the accused's guilt and nor can a lie be used in conjunction with the other evidence that the Crown relies upon to prove the accused's guilt. The only use I can make of the fact that the accused told a lie (or lies) is in my assessment of his credibility. If I am satisfied that he did lie, then that may be considered by me as having a bearing upon whether I believe the other things that he has said. 1. Direction - In respect of the accused's evidence - Liberato Direction The accused relies on an account of events in the evidence he gave, and his interview by police. That account is to the following effect, namely, that he denied lighting the fire at Auburn on 22 April 2019. It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows from this: First, if I believe the accused's evidence, obviously I must acquit. Second, if I do not accept the accused's evidence, but think it might be true, then I must acquit. Third, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charge which it brings against the accused, and there is no onus on the accused to prove that he is not guilty.

Assessment of witnesses generally

My function as the tribunal of fact involves deciding what evidence I accept as proved and what is not, and that involves making an assessment of the witnesses. I remind myself that in making that assessment of whether I accept evidence as established by a particular witness' account, I need to bear in mind that I am concerned with not just the honesty of the witness, but the reliability of the witness. Quite apart from questions of truthfulness, I bear in mind that the evidence of a completely honest witness may not be reliable because errors in observation or errors in the witness' recall of events, or a witness' inability to accurately describe what it is he or she saw or heard.
In making an assessment of the evidence of witnesses, I also bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, however, it is equally open to me to accept part of the evidence and reject other parts of that witness' evidence. In making that assessment I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all of the evidence together in arriving at the factual determinations I make.

Factual findings

Unless otherwise stated, the following are my factual findings based on the whole of the evidence: 1. On 1 November 2018, the accused entered into a lease on behalf of Rainbow Sydney of the premises at 6/164 Adderley Street West, Auburn, for a period of three years at an annual rental payment of $115,420. The first month was rent free and thereafter the monthly rental was $9,618.38. An initial deposit of $10,222.44 was paid on 30 November 2018 and both the accused and Huang Zhang signed the lease as directors of Rainbow Sydney. Huang Zhang actually paid the sum of $10,222.44. 2. The landlord secured a bank guarantee from Rainbow Sydney provided by the Commonwealth Bank of Australia in the sum of $30,667.32 which was also paid by Huang Zhang. 3. No rent was paid by Rainbow Sydney, and as at 28 March 2019, $21,518.33 was outstanding. On 24 April 2019 the landlord issued a notice of breach and ultimately secured the amount of the guarantee held by the Commonwealth Bank. 4. At no time were any complaints received by the landlord with respect to the electricity supplied to the property. 5. Ms Zhang had agreed to purchase 40% share of the business for $120,000. On 18 October 2018 she transferred $20,000 to the accused's ANZ bank account. On 19 October 2018 she paid the rental deposit of $10,222.44. On 22 October 2018 she made a further transfer of $20,000 to the accused's ANZ bank account. On 7 November 2018 a further transfer was made of $20,000 into the accused's account, by which time she had transferred $70,222.44. At that time Ms Zhang decided that she wanted to withdraw and not be a shareholder and director. She asked for the money to be transferred back to her. 1. On 15 November 2018 Ms Zhang went with the accused to AC Professional Accounting where she tendered her resignation as a director and secretary of Rainbow Sydney. She also signed a transfer of shares document acknowledging that she had transferred 30 shares to the accused, meaning that she retained 10% of the shareholding. The accused refused to return her money to her. 2. Mr Boyu Zeng met the accused in February 2019 at the warehouse. The accused asked him to invest in 30% of the business and told him that 30 or 40% would be around $100,000 to $150,000. 3. Mr Zeng decided not to invest but agreed to purchase baby formula from the accused and ordered 180 boxes at an agreed price of $33,480. He paid $20,000 into the accused's CBA account on 1 March 2019, and on 16 March 2019, he transferred $14,560 into the same account. 4. Subsequently, Mr Zeng agreed with the accused that the baby formula purchased on his account would be on-sold, together with further baby formula which Mr Zeng would buy, making a total of 1,620 tins of formula. Mr Zeng purchased a further 540 units which he took to Rainbow Sydney's warehouse. On 19 March 2019 he sent an invoice to Rainbow Sydney in the sum of $72,900. On 21 March he received $20,000 from the accused, and on the following day received a further sum of $12,900, a total of $32,900. 5. The accused did not repay the balance of the money to Mr Boyu Zeng. He told Mr Zeng that he had lost his identification and that he could not transfer money from his account because the bank had frozen his account. Mr Zeng continued to telephone the accused asking him for his money and was told the same thing until in late April 2019 the accused told him that there was a warehouse fire and he could not pay the money. 6. On 29 March 2019, Mr Jack Ren met the accused at the warehouse and discussed purchasing 50 pallets of milk powder from Rainbow Sydney. An agreement was made on 16 April 2019 for the supply of 50 pallets of milk product for $207,936. The goods were to be delivered within 15 days. On the same day, Mr Ren transferred $68,000 from HBW's CBA account to Rainbow Sydney's CBA account. On the same day, an additional sum of $15,174.40 was paid into a Chinese bank account in the name of Weixiong Zeng. 7. On 26 April 2019, the accused advised Mr Ren by WeChat that he had transferred two sums, each of $60,000, to his supplier and sent screenshots of those transactions. The two screenshots were dated 17 April 2019 and became Ex W. I find that they were documents that the accused had falsified. 8. After the fire, the accused telephoned Mr Ren and told him that his warehouse had burnt down. I find that the accused told Mr Ren that the neighbouring warehouse had been set on fire and that he had insurance cover from five insurance companies and that the compensation money would be paid very soon in a very large sum, far exceeding his loss. 9. I find that Mr Ren agreed to an amended contract dated 29 April 2019, by which he would pay an extra 20% deposit. On the same day, Mr Ren transferred $41,587.30 into the accused's Chinese bank account. 10. On 1 May 2019, Mr Ren received further receipts from the accused, one in the sum of $20,000 and the other in the sum of $13,000. 11. On 5 May 2019, the accused told Mr Ren that he had two suppliers, one in Sydney and one in Adelaide. They were asking for payment in full and he did not have the funds to do that and needed HBW to pay the remaining balance. Mr Ren transferred the sum of $20,793.60 to Rainbow Sydney's CBA account on 15 May 2019. On 20 May 2019, Mr Ren transferred a further amount of $28,310.20 into Rainbow Sydney's CBA account. 12. On 23 May 2019, Mr Ren paid a further sum of $31,190.40 into Rainbow Sydney's CBA account. He did this because he believed that if he did not pay the money he would not receive the goods he had ordered. 13. I find that subsequently, Mr Ren and the accused reached an agreement whereby the accused would purchase the 50 pallets of milk products back for an amount of $80,000. The accused did not pay this money and Mr Ren never received any product for which he had paid. 14. On 22 November 2018, AIG issued a public liability insurance policy, together with third party property cover. 15. I further find that on 16 April 2019, CGU issued a policy at the request of the accused for property damage on his business content and stock, in the combined sum of $350,000. On 17 April 2019, business interruption cover was added to the policy for 12 months gross profit of $180,000. 16. I find that the accused regularly visited the Star Casino up until April 2019 and I accept the evidence of Ms Hill, that at the time of the fire, his losses amounted to approximately $53,000. Thereafter, with the monies he received from HBW, he continued to accumulate losses for the period May to July 2019 in the sum of approximately $76,000. 17. I find, on the whole of the evidence, that the accused had a problem with gambling. 18. I find that on 20 April 2019, at 21:32 hours, the accused downloaded a translation of a description for "Essential fire lighters", which included instructions for the use of the product, together with first aid advice (Ex AM). 19. I find that on the afternoon of 22 April 2019, the accused purchased a pack of Redhead firelighters from Woolworths, together with a reusable bag to carry the item in. It was the only item purchased by him and he took the firelighters to the premises. 20. I find that the CCTV system within the premises was switched off on 18 April 2019 at 6.36pm. Mr Lin and the accused were both in the premises at that time, however, Mr Lin denied switching off the hard drive and because it was the accused who had the system installed, I find it was the accused who turned off the hard drive. 21. I find that the accused owed the sum of $2,800 to Mr Yang for wages at the time of the fire and that the business of Rainbow Sydney was in financial distress. As at 16 April 2019, it had a bank balance of $3.56, prior to the receipt of $68,000 from HBW. None of the bank accounts of the accused or Rainbow Sydney at either ANZ or CBA had substantial balances at that time. 22. I find that the accused arrived at the premises at 6/164 Adderley Street West on 22 April 2019 at 2.13pm. At 6.13pm he was shown walking out of the premises and then re-entered. 23. I find that at 6.22pm the accused left the premises carrying a bag with what appeared to be a cardboard box inside it. I further find that at 6.26pm the fire in the warehouse premises was well under way, and detected by passing motorists on the adjacent M4, as depicted in the dashcam video in Ex A. 24. I accept the evidence of Mr Mealor, that upon entering the premises, he observed six separate fires. I find that the most extensive part of the fire was in the south-western corner of the premises at location F5, identified by Mr Schweickle. 25. Notwithstanding the efforts of the fire brigade, I find that the warehouse premises were extensively damaged, including the roof. 26. I find that on 23 April 2019 the accused's mobile phone was seized by the police. 27. I find that on the same day, namely 23 April 2019, the contents of that phone were wiped by the accused accessing his Apple account. As police, following protocol, placed the phone on aeroplane mode upon its seizure, the phone was wiped when police subsequently connected it to the internet upon examination on 22 October 2019. In those circumstances a clear inference arises that it was the accused who wiped the phone so as to deprive police of the opportunity to obtain further evidence against him in their investigation. It is the only rational inference to be drawn from the evidence. 28. I find that on 25 April 2019 the accused submitted an insurance claim in the sum of $146,000 for stock lost in the fire, and the sum of $263,000 for equipment (Ex Q).

Findings based on the expert and other evidence

I accept the evidence of Mr Wayne Schweickle that the most probable circumstances of this fire were that there were multiple points of ignition.
I further accept the opinions of Mr Sutarov, that the area of most fire damage was inside the south-western quadrant of the warehouse. I further accept his opinion that there was insufficient physical evidence to determine the ignition source, however, given the attending fire brigade noted multiple seats of fire within the warehouse, and given the timeline involved, a deliberate act could not be ruled out.
I accept the evidence of Mr Mario Conti that the Nichiyu forklift was sold to Rainbow Sydney on 22 January 2019. At the time of that sale, it had a low usage for a 2004 model and was refurbished prior to the sale. Testing prior to sale included checking the battery and charger and safety switches, which demonstrated there were no problems with either the forklift, the battery or the charger.
I accept the evidence of Mr Conti that the forklift was tested on 25 January 2019 when a fault was found with the bonnet latch. A further complaint was received on 17 April 2019 about the forklift making a loud noise. A technician attended the premises and established that the rear tyres of the forklift were to blame for that noise.
I accept the evidence of Mr Conti that the possibility of a fire resulting from a forklift or charger shorting in the first 10 minutes of charging was virtually impossible. I further accept that the charger was designed with fuses which were designed to blow in the event of an electrical failure, together with the thermal protection circuit referred to by Mr Lualhati.
I further accept the evidence of Mr Gary Hodge who had lengthy experience in the forklift industry. I accept his evidence that when a forklift was not operating, it was completely isolated from its power source.
I also accept the evidence of Mr Greg Lualhati who was experienced in the trade of electronic services for over 30 years. I accept his evidence that a damaged Anderson plug may arc, causing sparks, however, I further accept his evidence that the charger was protected from damage by a fuse which would blow out and cut the circuit, as well as a thermal protection circuit. He provided a circuit diagram which became Ex E. I accept that his employer had no recorded complaint from Rainbow Sydney about this charger and there were no factory recalls on chargers.
Mr Robert McKay was a forensic examiner in the area of suspected arson, with particular experience in relation to vehicle fires. I accept his evidence, having regard to the timeline where the accused left the premises at 6.22pm, and smoke was seen coming out of the premises at 6.25pm, together with flames recorded at 6.26pm. That timeline did not fit the hypothesis that the subject forklift or battery charger that it was connected to allegedly had caused the fire. I accept his evidence, which was not challenged, that electrical fires are normally slow to propagate.

The accused's police interviews

The accused was interviewed by police the day after the fire on 23 April 2019. The transcript of that interview became Ex AC. When asked about the fire insurance policy taken out on 16 April, the accused said: "'Cause I've signed a contract with the overseas company to purchasing and selling formula. They suggest me to take more, more coverage of the, of the stock, because the formula that they're going to buy will be kept in my warehouse, so they, they suggest me to increase the value of the, the, the, the goods that will be purchased. That's why I, I, I went talked to the broker and the broker suggest me to buy this."
The accused was asked about the CCTV in the warehouse as follows: "Q. When was the last time you actually checked it was working? A. Should be before the holiday. Q. Have you checked it was working? A. I didn't check that. Q. Okay. Who has access to the actual CCTV system? A. Me, and there's a tv in the office area and you can see from the tv. Q. Okay. So would anyone switch that CCTV system off? A. Not sure. I don't think it, it was switched off."
When told that the CCTV hard drive had been switched off at 6.30pm on 18 April 2019, the accused said: "A. I don't know, I don't know the reason why, why they would switch it off, but we were still, but we were still working on the 19th."
The accused was asked about repairs required to the forklift on 17 April 2019 because of a loud noise coming from the machine when driving. He told police that when the forklift was checked, there was something wrong with the tyres. However, there had been no electrical fault with charging the forklift in the past.
When asked by police whether he owed any money to any person or business, the accused answered: "At, at this point in time, no."
When asked whether he had any outstanding rent, he said: "A. I'm about to pay this month's rent." However, when asked how much that was the accused said: "A. I haven't received the bill yet."
The accused did tell the police that he had cash flow problems with the business. When asked whether he had any problems affording things for his business, the accused answered: "A. My business problem in running short of money. My, my clients are just coming in endlessly. Before the holiday, we have customers or clients coming from Newcastle who wants to join us, and we have clients from overseas wanting to join us, 'cause packaging is a new industry. It's emerging industry, it can save a lot of stuff. My equipment are, are very advanced and imported from China, and this is the paperwork of purchasing the equipment, the machines."
The accused told police that Rui Lin had 30% of the business, Huong Zhang owned 10% and he owned 60%.
When asked how much stock was in the warehouse, the accused answered: "A. I'm no idea at all, 'cause I haven't done the, I haven't … that's why I, I always hope that I could go inside last night to have, have a, have a look, how much that, like, how big the damage was. The value is between $50,000 and $200,000."
When asked whether it was normal practice to turn the CCTV off for holidays, the accused answered: "A. No. It shouldn't be switched off, unless, well, there's no way. Not possible to switch it off. And we didn't switch it off in New Year and Lunar New Year and the 1st of January, the New Year, we didn't switch off. But we do the thorough cleaning up before and after the holiday. May, maybe it was switched off during the cleaning up by accident, but I'm not sure, maybe. And we clean up everything before and after the break."
Finally, when asked by police: "Q. Can you tell me how the fire started? A. I didn't know about the fire. If I take a guess, well, maybe it's something to do with the old cable or the, the, forklift, because nothing was unusual before I left."
The accused denied lighting the fire, and when asked whether he knew who may have lit the fire, he answered: "A. Don't know. Shouldn't be anyone. There was no source of fire before I left."
The accused underwent a further ERISP interview on 15 August 2019. The recording of that interview became Ex AJ and the transcript was marked as MFI#4. When told by police that they were going to ask him questions about the allegation of an arson on 22 April 2019 at the warehouse, and that it was done by him with the intention of gaining an advantage, the accused said, "I don't agree."
The accused told the police that two businesses had invested in Rainbow Sydney more than $100,000 combined. He could not name those businesses, but told police that a person named Jennifer had invested between $70,000 and $80,000 for 10% of the business. The accused told police that the second company had invested greater than $50,000, but less than $150,000. The representative of that business was Mr Lin. The accused denied that Mr Lin had an office at the warehouse premises.
The accused told police that as at 22 April 2019, Rainbow Sydney had around $100 in its ANZ bank account. He denied having any offshore account, but could not remember the balance of Rainbow Sydney's CBA account as at the date of the fire.
The accused told police that since the start of its operation, Rainbow Sydney had received about $200,000. At the time of the interview, he had no cash because in the past four months he had spent all of that money and had ordered new machines, waiting for the factory to be resumed. The accused told police there was no cash in his premises on the 1st of May 2019 when police executed a search warrant there because he took the money with him that day. It was more than $100,000 which he had taken from the company. He told police he needed "cash transaction" and when asked whether the money would not have been safer in the bank, he answered: "A. But we needed cash to do the transactions because the bank only allowed maximum of, uh, $10,000 withdrawal. When we purchase 60 cartons of formula that would need $10,000. Because the, because the bank does not allow me to withdraw big amount of cash, therefore I had to have um big amount of cash with me when we, when we do, um, uh, the purchase."
When asked what he did in his free time, the accused answered: "A. Um, free time, uh, sometimes just had a walk around. I usually stayed at home and sometimes, uh, go, went out to walk, to have a walk." The accused made no mention to police of going to the Star Casino.
The accused was asked further questions about the two insurance policies taken out by him. He was asked: "Q. At what point did you realise you needed a second policy? A. Because in May I was going to, uh, increase my business and to add express delivery into my business. As I, as I said in the morning, it was still, uh, under application, uh, so that I could expressly send directly to China. Um, um, and also as I said in the morning, when the goods were collected, um, the warehouse was, uh, usually left, uh, no goods, only the machines. So in May the business, uh, the express delivery business will be added, will be add, would be added. Therefore the goods would be stored in the warehouse. Those goods are very expensive, therefore I need insurance to ensure these goods were safe. Therefore I also consulted a consultant as to how to ensure or how to make sure the safety, uh, of the goods. Uh, in April my clients or customers already know that I was going to do the express delivery, uh, business. That, that, that was the reason why I took up the second insurance because, uh, in warehouse I would, uh, store, uh, expensive goods and then, then the insurance was taken out, uh, my, uh, express delivery business started in May, would, would start in May. But now everything is, um, is, um, ruined."
The accused told police that prior to the fire he had informed the forklift company to come over and check the machine and that an inspection was to take place on 23 April 2019. He told police that Daniel Yang had spoken to the forklift company about the machine making an unusual noise when it was charging. He told police he had heard the noise himself.
When asked whether he had a reason why the CCTV hard drive was turned off, the accused answered: "A. So I explained that on the previous occasion, if that was switched off it might have been, um, switched off when, um, the cleaning was in progress. But it usually, usually its, it, its, it, it, it was impossible. We never, uh, switch it off."
The accused was asked about the office work he did at the premises on 22 April 2019. He was asked: Q: And how do you get the data, how do you gather the data? A. And from handwriting and also from mobile phone as well as from the computer. Q. Did you use the computer? A. Yes. Q. And did you use the computer in number 1? A. Yeah. I think so. Q. Did you use the computer in number 2? A. Yes."
The accused was asked whether he had paid any rent to date. He answered "yes", and when asked how much he had paid, said: "A. So, so, so far the receipt, um, receipts have shown $40,000 paid."
The accused was asked about the firelighters found at his premises on 1 May 2019. When asked what was the purpose of having firelighters, he said, "For barbecue". He told police he had forgotten how many times he had purchased firelighters, but that he had barbecues "occasionally, when I had time". He had barbecues with friends, who he could not name.
When asked whether he ever took firelighters to the warehouse, the accused answered: "A. Yeah. I, I'm not sure whether I have or not. Um, I, I, I'm not sure. 'Cause it was, uh, rarely used, other than gathering, um, there was not other use."
The accused was asked about the withdrawal of $50,000 on 17 April 2019 from Rainbow Sydney's CBA account. He told police he took the money out of the account and it was for "cash flow cash". He gave the following evidence: "Q. Why do you need to keep the cash for business? A. I explain that in the morning. Um, in the morning if I withdraw the money I could only withdraw, uh, $10,000. Uh, because at the end of, uh, April … I, I, I, at the end of April I would need a big amount of cash to pay for the devi, the, machines to pay … pay for the express um, delivery business."
The accused denied using the $50,000 he withdrew that day for personal reasons. The police then asked about the deposit of $68,000 from HBW on 16 April. When asked who were HBW, the accused answered, "I dunno". He was then asked: "Q. You don't know who HBW are? They've given you $68,000. A. So there's a lot of business transactions, um, I, I don't, or I can't remember which transaction is through which company. And also I don't know each companies, I don't know each company's English name. Um, we usually communicate in Chinese."
From a still photograph taken from the CCTV footage on 18 April 2019, the accused identified Mr Lin. The accused was asked: Q. Does Lin have any operation of the business? A. No, he doesn't operate, he doesn't have operation. Q. Does he use any of the computers? A. Occasionally. Uh, he doesn't know how to use the computer but occasionally he asked me, uh, to help. Q. Why was he there on that day? That's the 18th the last day of operation? A. He occasionally … he occasionally came over to have a chat and have a tea. Q. Did he do any of the cleaning that day? A. I don't know."
The police asked the accused about the download of his mobile phone that was seized on 23 April, and the google translation concerning Essential brand firelighters. At first, the accused stated that that translation should have been done on the 24th. When asked why he required the translation, he gave the following evidence: "A. Because, because I, I was going to do a barbecue at home so I did not know what that was. Q. But you told us you do barbecues in general? A. But I did not know what was included. I, so I did not know what was contained in this box, so therefore I need to google to see what it was, uh, uh, enclosed inside … I, I was planning to do barbecue, therefore I purchased that on the 24th."
The accused told the police he had bought firelighters on the 24th because he couldn't find the firelighters he had purchased on the 22nd of April. He was asked: "Q. Did you take the firelighters you purchased on the 22nd into your warehouse? A. I took it home, at home. So is not in the warehouse."
The accused told police there was something he remembered about the firelighters. He stated: "A. We had a holiday, uh, from the 19th, uh, there was nothing in between so I, I was prepared to go out with friends to have a barbecue on the 23rd or the 24th of, uh, so when I had nothing to do I would usually go to the supermarket. So when I, when I wander around, uh, in the supermarket I was looking at a barbecue stoves and also the related, uh, related equipments so when I saw that I saw that I did not know what that was. I was quite curious about, uh, each of these things, so, therefore I, I, I, I used my mobile phone to scan, um, the contents of that. I don't remember whether I bought that or not. Uh, I, yeah. Between the 20th and 21st I, I, I did search on the internet that could be used to, uh, barbecue, uh, uh beef. The officers that came to my home, uh, he, or, he, he would have seen a, a small, um, small stove that, uh, was used for barbecue and there's also, there was also a lot of, um, meat for barbecue in the fridge. I remember on the first, um, uh, in my, in, in my garbage bin I still had some, uh, you know, the, the, the, the, uh, the beef and also the bones, et cetera, all this rubbish, food scraps … there was still, uh, uh, beef and meat in the fridge. Um, yeah. I did use that to, um, do the barbecue at home. Q. Okay. A. Yeah. I now remember I did buy this but also I bought this home. Q. You, you're pointing at the receipt dated the date of the 22nd of the firelighters? A. Yeah. I, I brought it home. One hundred per cent. I, I took it home, one hundred per cent sure. I took it home. Uh, between the 23rd and the 28th I used that at home. No, it was between the 23rd and the 1st of May I used it. So, uh, so I'm, I'm sure on the 1st of May, uh, there was, uh, food scraps of this, um, beef in my garbage bin."
The accused went on to say that he took firelighters out for a picnic on the 1st of May and then provided the following explanation: "Okay. So the reason why, um, I now remember the reason why you only found one was because I used one and also, I only, I bought two boxes of, uh, the lighters and, and I could not find the first one at home. So on the 24th I bought another box."
The accused proceeded to tell police that he used the firelighters to cook beef directly without a grill. He told police that on the day they executed the search warrant he was out with a group of people together in a park near the sea and he took firelighters and meat with him. He could not identify who his friends were, saying it was organised through the internet. He was asked: "Q. If they're your friends, you would know where they are and who they are and what they're contact numbers are? A. So they're not my friends. Because that was, that was organised, uh, initiated from the internet to pick persimmons. So, I, I knew there wasn't lunch that day at the sea therefore I bought this out."
The accused could not identify the location near the ocean.
The accused stated to police that he had no motive to turn off the CCTV. When police told him he did have a financial motive because he had made a claim against his insurance, the accused said: "So the, the claim amount is lower that what I've lost."
When asked how he explained flames coming out of the roof of the warehouse four minutes after he had left, the accused said: "I don't know. I only know that, um, uh, before I left the last thing I did was to, uh, charging the forklift. I need, I did not light any fire, uh, or even …(incense)."
The accused was asked: "Q. Did you hear any explosions? A. I remember yes. Q. Yeah … A. Yes, now I remember, I heard on that day there was a bam, bam. Because in Auburn there are often people who fire off, uh, uh, uh, uh, you know, fireworks."
The accused told police he was very sure that the fire was caused by a short circuit during the charging of the forklift. He told police the premises were full of paper cartons which would burn very quickly.
The police asked the accused to tell them about his gambling history. He said: "I occasionally went there but I, I don't gamble." He went on to say: "I don't very like it." He was then asked a question: "Q. How much have you gambled there at the casino? A. I don't remember. I, I don't remember but, uh, very rarely lose." … Q. And how much do you win? A. Uh, uh, uh, I, I don't know but sometimes feel, uh, tens of thousand, sometimes few thousand, varies. Q. But you don't lose? A. Very rarely because I, I did not, I did not stay there for very long, uh, leave, left very quickly. When it was pointed out that he had spent 91 hours at the casino from October 2018 to May 2019, a period of seven months, and that it was a lot of time, the accused said: "Occasionally I would have company friends to go there."
When police pointed out to the accused that on 16 May he had taken $19,800 to the casino and left with $5,000, and that he had lost about $15,000 in one day, the accused told police that he sometimes went there and exchanged the cash into chips and that he often did that. He went on to say: "So often time I do not, I did not exchange these chips back to cash, my friends can prove that. And also often-time I, um, I bought some small notes like $20 and, uh, $50 to change for that chip because the, uh, the casino usually gave back that brand new cash notes, um, with very, uh, serial, you know, the, the good serial numbers … serious numbers. In that way that, might, made … my life, uh, daily life, very, very easier. You can see the photos from my photos, uh, the photos in my mobile phone, there are a lot of photos about my chips. So for example on that day, I probably will only need six chips, six chips instead of a whole stack."
When police informed the accused that in executing the search warrant at his premises they did not find any chips, he told them that he took the casino chips to the beach with him.
The accused denied having an addiction to gambling. It was put to him that he had cashed $59,700 at the casino on 17 April 2019, the same day as he had withdrawn $50,000 from Rainbow Sydney's account. He was asked: "Q. Did you use the company's money to gamble? A. No. But I would exchange the cash into chips for easy carrying. Q. Do you know what's easier? Put it in a bank. It was already in a bank. A. No." The accused went on to say that he may have been at the casino with a friend and provided his card number to him. When asked: "Q. Who was the friend? He said: "A. I don't remember."
The accused denied lighting the fire at his warehouse and denied doing that with the intention of defrauding CGU, his insurance company. He told police he did not know who lit the fire and said: "A. But my company was in, uh, profit and also … the single company and the profit was growing. There was no, not necessary for me to, to, to lit the fire. And, and the, the claim amount is lower than …"

Assessment of the Crown case

Having regard to the whole of the evidence as summarised above, the factual findings that I have made based on the evidence and the concessions made by the accused as to both motive and opportunity, the Crown case constitutes a very strong circumstantial case, giving rise to an unavoidable conclusion that the accused Rui Zeng deliberately lit the fire at the warehouse premises and did so with a view to making a financial gain for himself.
Notwithstanding the concessions made on behalf of the accused, the strength of the evidence upon which the Crown relies cannot be understated. The evidence establishes that the business of Rainbow Sydney was not doing well as stated by the accused. He had not paid rent on the leased premises since 1 December 2018 prior to the fire on 22 April 2019, and he lied to the police by saying that rent in the sum of $40,000 had been paid. Nor had he paid his employee, Daniel, $2,800 in wages. The accused had also refused to re-pay Jennifer Zhang the money she invested, an amount exceeding $70,000, and the accused's evidence that that sum represented a 10% valuation of the business was just implausible. The accused also refused to pay Boyu Zeng the $40,000 he was owed, again by implausibly stating that he had lost his identification and the bank had frozen his account. Moreover, when the business did receive money, for example, the sum of $68,000 from HBW received on 16 April 2019, the accused merely withdrew that money from Rainbow Sydney's account and cashed it at the Star Casino.
The accused clearly had a gambling problem, as evidenced by his losses prior to April 2019 and his continued attendances at Star Casino following the fire, and the use of further monies received by Rainbow Sydney from HBW for goods which the accused never intended to supply. The accused lied to the police about his gambling, and the substantial losses he incurred as evidenced in Ex AO.
That evidence must be viewed against the evidence that the accused took out fire insurance with CGU on 16 April 2019, and added business loss insurance in the sum of $180,000 on 17 April 2019. Notwithstanding that such action might be characterised as amateurish, it provided a clear motive for the accused to set fire to the premises and make a claim on that policy.
The Crown also relies on lies told by the accused, both to the police and in his evidence, as showing a consciousness of guilt. I find that those lies were manifold. Whilst Counsel for the accused accepted that there would ultimately be adverse findings as to the accused's credit, a concession properly made, the extent of the accused's mendacity should not be understated. I find that the accused lied in respect of the following: 1. His evidence about the purchase of firelighters, his loss of one packet of firelighters and his subsequent evidence that he took firelighters to the ocean on 1 May 2019, when the police executed their search warrant at his home, and his purchase of firelighters on 24 April was internally inconsistent, implausible and incapable of acceptance. 2. His evidence that he used firelighters to cook beef directly was untruthful. I accept Ms Qi's evidence that she had never seen the accused cooking with firelighters at home. 3. His failure to tell police, when questioned by them on 24 April 2019, that he spent time at the casino. This was deliberately misleading. 4. His subsequent description of his gambling, and particularly his evidence that he made losses "very rarely" was untruthful. 5. His evidence that he cashed large sums of money for chips was implausible and was an example of tailoring his evidence to meet the facts against him. 6. His evidence that he took casino chips to the beach on 1 May 2019 was another example of tailoring his evidence, to explain why police had found no chips at his home that day. 7. His evidence as to the valuation of the business was hyperbole, again tailored to meet the evidence against him. 8. The two receipts sent to Mr Ren, being Ex W, were both documents falsified by the accused in an attempt to satisfy Mr Ren that he had placed orders with two suppliers for milk powder products, when in fact no order had been placed. 9. His evidence that Mr Ren created the receipts in Ex W was entirely untruthful. 10. His evidence that the process of charging the forklift involved some noise which the supplier had made an arrangement to investigate on 23 April 2019 was untruthful. 11. His denial that he told Mr Ren that "a small thing had happened", that he was covered by five insurance policies and would be well compensated. 12. He lied when he told the police that the business had paid the bank guarantee and in fact it was paid by Ms Zhang. 13. He lied about the business having a valuation of $700,000. 14. He lied about having no customer payments in April because the payments were to be collected at the end of April. 15. He lied when he told police he did not like gambling at all. 16. His evidence that he had two suppliers of milk products, one in Sydney and one in Adelaide, when he was unable to name the Adelaide supplier was untruthful. 17. His evidence that it was not possible for him to erase his mobile phone contents was untruthful. 18. His evidence that Rainbow Sydney paid him a salary "whenever he needed the money" was untruthful and unsupported by the bank documents. 19. His evidence that he withdrew $50,000 on 17 April "for the operation of the company" was untruthful, in light of the fact that he cashed that money, together with another $9,000, at the casino that evening. 20. His evidence that he would pay for milk products with gambling chips was untruthful. 21. The evidence that he was unable to pay Boyu Zeng because he lost his banking identification was untruthful. 22. He lied to the police about the rent, and not owing money to any person or business prior to the fire. 23. He lied to the police about the maximum allowable withdrawal being $10,000. 24. He lied to the police about the reason for him requiring a second insurance policy was because he was in the course of developing an "express delivery business". 25. He lied to the police about the CCTV hard drive being switched off during cleaning. 26. He lied to the police about using two of the computers at the premises on 22 April, when none of the three computers had been logged onto that day. 27. He lied about the withdrawal of $50,000 on 17 April 2019, being for "cash flow cash". 28. He lied when he told the police that he did not know who HBW was. 29. He lied to police about providing his casino card to a friend, whose name he could not remember. 30. The accused also lied when he told police that the profit for Rainbow Sydney was growing.
There were numerous other examples of matters where findings inevitably would be made adverse to the accused's credit, for example, the evidence of Daniel Yang being told by the accused to lie to the insurance investigator, Ms Russell, and to cut any meetings short, and numerous answers he gave to the police about his dealings with Ms Zhang, Mr Zeng and Mr Ren. The Crown properly conceded that such matters go to credit rather than consciousness of guilt. When viewed together with the above matters, however, I find that the accused could not be accepted as a witness of truth. In accordance with the direction I have given myself, as I do not believe the accused's evidence, nor do I think it might be true, I therefore put the accused's evidence to one side. The question then arises, has the Crown proved the accused's guilt beyond reasonable doubt, and in considering that question, is there any other reasonable conclusion arising from the facts as I found them which is inconsistent with the conclusion the Crown asked me to find.

Assessment of the accused's case

The accused's case is that the Crown has not proved beyond reasonable doubt that the fire was deliberately lit by the accused. The accused relied on the concessions made by Mr Mealor in cross-examination that what he referred to as six seats of fire, were in fact six locations where flammable material was observed by him to be burning. The most intense fire was located in the south-western corner of the warehouse, near the location of the forklift and charger. It was submitted that when viewed as a whole, the evidence regarding the fire left room for a finding that in each location the fire was caused by either radiant heat or very hot material dropping down from the roof, and in particular, the skylights, which were found to be missing from the roof, having been consumed by the intensity of the fire.
It was submitted that in his evidence, Mr Schweickle had not dismissed the prospect that drop-down could cause areas of fire and could have ignited other small fires within the premises. Further, the accelerant detection canine had not found any evidence of accelerant still in the premises. A most unusual aspect of the fire was the burnt pallets closest to the roller door.
Further, it was submitted that whilst the investigator had found no single point of ignition of the fire, he had not had the opportunity to inspect the whole of the premises because they were unsafe. It was submitted the heating of bricks could have caused small fires and the damaged floor mat on the forklift was significant. That damage demonstrated that substantial heat had come from the left-hand side of the forklift, namely, from the direction of the charger, and the damage it caused gave rise to an inference that that could possibly be where the fire started. That gave rise to an inference that it was the potential point of ignition of the whole fire, particularly having regard to the evidence of Mr Conti in respect of the possibility of the Anderson plug causing a short. The Anderson plug of course was missing and had never been identified or located.
The accused relied on some differences of opinion between the experts Mr Sutarov and Mr Schweickle to submit that it was unclear whether there were in fact six separate seats of fire. Concessions were made by the experts as to the possibility of ignition of fires by way of radiant heat. Whilst it was conceded that the predominance of the expert opinion was that the fire was deliberately lit, a number of other possibilities could be accepted as arising by inference from all the evidence.
The accused submitted that there may have been a small conflagration at the back of the premises at the time when the accused left and therefore a question arose as to whether there was in fact a timeline in place for the fire. Given that a fire may have been simmering for some time whilst the accused was in the premises and there was a large pile of cardboard on the metal racking adjacent to the location of the forklift, the timeline leading to a major conflagration of fire, viewed through the roof of the premises within four minutes of the accused leaving, became an unlikely scenario. Further, at 7.15pm, the accused had sent a message to his employee Yang about commencing work at 10.30am tomorrow, and doing cleaning work to welcome the new team. This was consistent with the accused not being aware at that time that there was a fire in the premises. Also relevant was the description of Mimi Qi as to the changes she observed in the personality of the accused immediately after the fire, to the effect that he had become very emotional. The evidence established that he had not taken any personal effects from the premises which was not consistent with deliberately lighting the fire for financial gain.

Determination

In considering the totality of the evidence, I am satisfied that each of the elements of the offence are made out, namely, that on 22 April 2019 at Auburn, New South Wales, the accused dishonestly, with a view to making a gain for himself, did damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire. I am satisfied that the accused used the firelighters he purchased on the afternoon of 22 April 2019 to light six separate fires within the warehouse, and that between each of those seats of fire, there was no fuel load. I am satisfied the most intense area of the fire was in the south-western corner of the premises, as a result of that part of the premises being where used boxes were stored and flattened cardboard boxes to be used in the packing process were also stored on the metal racking. I am not satisfied that the fires were lit by either radiant heat or drop-down from the skylights. For example, the timber pallets stored near the roller door at the front of the premises, which were found to be extensively burnt, were not underneath any skylight.
Nor is the absence of any accelerant being found in the premises post the fire determinative. Given the use of firelighters and the intensity of this particular conflagration of fire, it is understandable that all of the accelerant used, namely, the firelighters, would have been consumed in that conflagration.
Nor does the evidence as to the burnt mat on the forklift, and the cables from the charger to the forklift, support a finding that the single point of ignition of the whole fire was at the location of the forklift. This could only be entirely speculative, and is contra-indicated by the evidence of the expert witnesses, that a fire caused by the charger was virtually impossible, given the safety protocols in place in that item, the lack of combustible material contained within it and the presence of unburnt paint on the inside lid of the charger.
There is no evidence to support the submission put on behalf of the accused that there may have been a small conflagration at the back of the premises at the time when the accused left. That submission was not supported by the evidence of the accused himself, to the effect that he inspected the premises before he left and placed the forklift battery on the charger. That submission could therefore only be regarded as being entirely speculative. It also means that the submissions made on behalf of the accused that the timeline relied on by the Crown was flawed, should be rejected. My finding that the premises were well under fire, as viewed through the dashcam footage in Ex A, within four to five minutes of the accused leaving the premises, inevitably excludes a finding that the fire commenced as a result of a short in the charger or the connecting cable which ignited flammable material nearby.
Further, the message the accused sent to his employee, Daniel Yang, at 7.15pm, is equally capable of being evidence of the accused deliberately covering his criminal conduct, as it is exculpatory. Nor could any weight be placed on the evidence of Ms Qi as to the changes she observed in the personality of the accused following the fire, given all of the circumstances. Nor can any weight be given to the submission that the accused did not remove personal effects from the premises, as there was no evidence as to what was contained in the box he was seen to be carrying when he left the premises on 22 April 2019.
Having regard to all of those matters, I am not satisfied that there is any reasonable conclusion open on the whole of the facts that is inconsistent with the conclusion that the fire was deliberately lit by the accused for the purpose of him making a financial gain for himself. Having considered and weighed all of the circumstances established by the evidence, I find there is no inference consistent with innocence of the accused reasonably open to be drawn on that evidence. I therefore find that the Crown has proved its case against the accused beyond reasonable doubt.

Order

Having found the Crown has established its case beyond reasonable doubt, I find the accused guilty of Count 1 on the Indictment, that on 22 April 2019 at Auburn in the State of New South Wales, he did dishonestly, with a view to making a gain for himself, damage property, namely, the warehouse located at 6/164 Adderley Street West, Auburn, and its contents, by means of fire.

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: 17 December 2020

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Cited By (1)