Sachin Sharma v Insurance Australia Limited trading as NRMA Insurance

Sachin Sharma v Insurance Australia Limited trading as NRMA Insurance - [2017] NSWDC 10 - NSWDC 2016 case summary — Zoe

[4]

The Deliberate Starting of the Fire and Scene Phone Left at the Property

The plaintiff does not concede that the fire was deliberately started, but leads no evidence against that conclusion.
The defendant's first witness was Mr Stuart Ritchie, a Commercial and Criminal Forensic Consultant, experienced and expert in investigating the cause of fire. His expert report is dated 26 August 2015. His affidavit made 27 August 2015 was read. Instructed by the defendant, he attended the Property on 25 June 2012, thirteen days after the fire. No challenge was made to Mr Ritchie's expertise; indeed he has personally attended and reported upon his investigation in relation to over 3,000 fire scenes and over 30 years has engaged in education of fire investigation. He obtained a Bachelor of Science from Macquarie University. In 1988, he completed the New South Wales Police Crime Scene Examiners course. He was dux of that course.
In the course of his investigation, Mr Ritchie took 96 photographs. He examined the Property from its perimeter and through the house. He concluded that the fire was caused by ignition of flammable liquid which had been spread throughout the house. He opined that ignition appeared to have occurred at floor level, and that the exit trail appeared to be to the rear door. He thought it most likely that the fire was started in bedroom 1 of the house plan, translating to the foyer, the lounge, the internal hallway and to the rear of the Property.
Bedroom 1 and its occupant became the subject of cross-examination of Messrs Oudin and Victorsen, who were tenants of the Property until the eviction of tenants on 31 May 2012. Neither of them was sufficiently acquainted with the occupant as to be able to identify him. Neither of them was sufficiently acquainted with bedroom 1 such as to be able to contribute one way or the other to the plaintiff's suggestion in cross-examination that a window of that bedroom could be manually removed from the window frame without requiring forcible entry.
That bedroom window was found by Police to be outside of its frame and on the ground exterior to the house.
Mr Ritchie in his report recorded that he did not identify overt physical evidence attributable to forcible entry damage to the window or the window frame. He did not know whether it was in situ preceding the fire or not. He could not say, if it had been in situ within the frame, whether or not significant force was required to remove it.
That the inflammable liquid used to start the fire was a petroleum hydrocarbon was confirmed by the evidence of Professor Stern whose affidavit was dated 1 September 2015. Professor Stern was not required for cross-examination. Professor Stern tested samples provided to him by Mr Ritchie.
Mr Ritchie concluded that the nature and character of the fire damage within the Property was indicative of a planned and targeted methodology associated with a person(s), moving throughout the house. He found no evidence of forcible entry by door or by window.
With Constable Apthorpe, on 13 June 2012 Det. Snr. Const. Graham Rogers ventured into the Property as far the front bedroom, but due to safety did not go further.
The inescapable conclusion, on the evidence, is that the house upon the Property was severely damaged by a fire which was deliberately started by a person or persons for that purpose a little before 11:27 pm 12 June 2012, when the Property was unoccupied. There is no evidence to the contrary.
The Property was open on each side of the house such that the rear of the Property could be accessed from the street. On one side there was a gate but Mr Ritchie was unable to tell whether it had been locked or unlocked at the time of the fire. On the other side there was no barrier impeding a person moving from the street to the back of the Property where the fire was lit.
A central fact in the case is that a mobile phone which during the hearing became known as "Scene Phone" was found by the police the morning after the fire. During the hearing the plaintiff conceded that Scene Phone was a falsely registered pre-paid phone operated by Mr Jai Sen.
The plaintiff did not concede that Mr Sen operated the Scene Phone at the time the fire was started. Determination of whether or not Mr Sen did then operate Scene Phone is a central question for determination in the case.
Evidence of the discovery of Scene Phone after the fire was given in the evidence of Det. Snr. Const. Rogers. At the time of the fire he was a Senior Constable. His affidavit was made 21 August 2015. He attended for cross-examination. Scene Phone became Exhibit 1.
Det. Snr. Const. Rogers attended the Property between 07:30 and 08:00 on Wednesday, 13 June 2012, the morning following the fire. Constable Apthorpe was at the Property when he arrived.
Det. Snr. Const. Rogers described that an accelerant which smelled like petrol had been used, with accelerant pour patterns being found in the bedrooms and in the lounge room. He was informed that the only possible point of forcible entry was the rear bedroom (Bedroom 1) window, which window was out of the frame and on the ground, all other points of entry being secured.
The uncontested evidence of Det. Snr. Const. Rogers was that Scene Phone was found in the backyard of the Property in the grass between 08:00 and 09:00 on 13 June 2016.
Det. Snr. Const. Rogers accessed Scene Phone (a Nokia mobile phone) using its unique identification number (IMEI) and on the police system found its number to be 0415 327 026.
On 13 June 2012, Det. Snr. Const. Rogers interviewed the plaintiff at his home. The plaintiff informed Det. Snr. Const. Rogers that Police had telephoned him informing him of the fire at 05:00, and that he had been home all night with his younger sister Hema. Hema corroborated to Police that the plaintiff had been home all night. There is no evidence that the plaintiff was present when the fire was started. The defendant does not submit that he was.
Photographs obtained from Scene Phone contained photographs of Mr Sen and a woman who on the evidence was referred to as "Honey" and as "Huni" in the contacts file of Mr Sen's regular mobile phone (Mr Sen's Phone). It was the plaintiff who identified Mr Sen as the man in those photographs (on Scene Phone) to the police.

[5]

The Defendant bears the Onus of Proof

The plaintiff relies on McLennan v Insurance Australia Ltd [2014] NSWCA 300; (2014) 286 FLR 453 at [6] and [28] as to which party bears the onus of proof.
The defendant accepts that the District Court of New South Wales is bound to follow McLennan v Insurance Australia Ltd [2014] NSWCA 300; (2014) 313 ALR 173; (2014) FLR 453, with the result that the defendant bears the onus of proving that the event falls within the Policy exceptions stated in the specific Fire exclusion clause and in the General exclusion clause.
The defendant formally reserved its position in relation to whether McLennan v Insurance Australia Ltd [2014] NSWCA 300; (2014) 313 ALR 173; (2014) FLR 453 was correctly decided. In closing written submissions, the defendant described its formal contention in the following terms: "… that loss or damage caused with the connivance of the plaintiff was a general exception to the defendant's promise to cover loss or damage caused by a fire because it qualified all of the circumstances in which that general promise applied. If that is correct (and McLennan is wrong), it follows that there are two logically distinct components to the case: (a) first, the plaintiff must dispense with his evidentiary and persuasive burden of establishing on the balance of probabilities that the defendant breached the terms of the Policy by failing to pay the Claims, and ought be put to proof without the defendant undertaking more than to displace his prima facie case; (b) secondly, the defendant may bring positive defences to negative the plaintiff's case. Each element rules out the other. Thus, in a case where, on the whole of the evidence, the probabilities were equal, a defendant insurer would succeed."
The plaintiff puts his case on the basis that his prima facie case onus is only to prove four elements. The four elements are: 1. that the plaintiff was the owner of the Property; 2. that the Property was insured under the Policy; 3. that the fire caused the damage; and 4. that the plaintiff sustained the loss caused by the fire.
There is no dispute as those following facts. The plaintiff must therefore succeed unless the defendant satisfies its burden to prove its affirmative defences.
I proceed to determine whether the defendant has satisfied its onus.

[7]

Policy, page 24: "Fire If loss or damage is caused by a fire: Covered Fire Not Covered if the fire was started with the intention to cause damage by: you, or someone who enters your rental property or site with your consent (this does not include a tenant or other guest)". Policy, page 28: "Other cover - Buildings Insurance If one of the listed events shown on pages 20 to 27 causes loss or damage to your rental property, then we also cover some other things. Under the 'other cover' shown in this section, we tell you what additional things we cover and any specific exclusions and conditions that apply to the cover. General exclusions may also apply - see Section 4. Also, if you don't meet your responsibilities when you make a claim you may put your claim or cover at risk -see page 39. Table 3.2 - Other cover This table shows other cover we give you. For the first 2 covers shown in this table you can make a claim any time - that is, whenever a listed event that is covered takes place and causes loss or damage to these things on their own in the period of insurance. Table 3.2 - Other cover Other cover When you can claim for cover Costs paid as part of the sum insured? Buildings Insurance Contents Insurance Building materials Any time Yes ✓ X Furniture and furnishings - non-strata scheme Any time Yes ✓ X Loss of rent during repairs With other damage On top of buildings sum insured ✓ X Keys and locks With other damage Yes ✓ X Demolishing and removing debris With other damage Yes ✓ X Rebuilding fees With other damage Yes ✓ X Meeting building regulations With other damage Yes ✓ X

[8]

Policy, page 30: "Loss of rent during repairs If a listed event causes loss or damage to your rental property and we agree your tenants cannot live in it and need to move out while it is being repaired or rebuilt. Covered under Building Insurance the rent you lose during the reasonable time it should take to repair or rebuild your rental property. We pay these costs for up to 12 months. We pay this on top of the buildings sum insured. Not Covered loss of rent during any time you live in the building if you also make a claim for rent default and we pay your claim loss of rent as a direct result of a claim under these listed events: theft or attempted theft by a tenant or their guest, or vandalism or a malicious or an intentional act by a tenant or their guest. Conditions You must have a rental agreement that states the: term of the rental period, and amount of rent and bond your tenant needs to pay." Policy, page 36: "4. General exclusions that apply to your policy There are certain situations when we won't provide cover under your policy. This section outlines the general exclusions that apply to all cover we provide under your policy including liability cover. Other exclusions and conditions There are specific exclusions, conditions and limits that apply to some parts of your cover. These are described throughout this PDS with the information they relate to. … Your responsibilities when you are insured with us and make a claim are shown on page 39. You may put your insurance claim or cover at risk if you do not meet your obligation to us." Policy, page 37: "General exclusions The exclusions shown in this section apply to all cover under your policy. What we don't cover Loss, damage, … arising from: … any intentional act or omission by: you someone who acts with your consent." Policy, page 38: "5. Claims and what we pay This section provides information about our claims process and what we pay when you make a claim:" Policy, page 39: "What happens when you make a claim When you make a claim, we will: ask you some questions over the phone tell you if you need to pay any excess and how to pay it. We may organise help through our preferred repairers and suppliers. Your responsibilities When you make a claim, you have certain responsibilities. These responsibilities also apply to any person that is covered by your policy. If you don't meet these responsibilities, then we may not pay a claim in full, or we may decide not to pay it at all. Co-operate You must co-operate fully with us, even if we have already paid your claim. This may include: providing us with all the information, documents and help we need to deal with your claim … being interviewed by us. You must be truthful and frank in any statement you make to us. Prevent further loss or damage You must: do everything reasonable to prevent further loss or damage to your rental property or contents take all reasonable steps that are available to re-let your property, and/or legally terminate the rental agreement and evict your tenant when you become aware that your tenant's behaviour may cause you to make a claim under: rent default." Policy, page 43: "What we pay for - Buildings Insurance If we agree to cover your claim under Buildings Insurance, then we will: pay the cost to repair or rebuild the part of your rental property that was damaged - we pay the lower of the cost to repair or rebuild your rental property pay for other things we cover under 'other cover' - see pages 28 to 32. The most we pay The most we pay is the buildings sum insured. We may also pay some costs on top of the buildings sum insured - see 'other cover' in Table 5.1. Table 5.1 - Costs paid on top of the buildings sum insured Other cover Loss of rent during repairs - see page 30. How we settle your buildings claim We will choose to settle your claim for loss or damage to your rental property or 'other cover' in one of the following ways:

…
Pay you the reasonable cost to repair or rebuild your rental property. We can choose to: pay you pay your nominated repairer, supplier or builder or provide you with store credits for one or more nominated suppliers. For example, we may pay you directly when: you decide not to repair or rebuild your rental property you don't start repairing or rebuilding your rental property within 6 months from when the damage takes place, or within any longer period we agreed to in writing.
Pay you the buildings sum insured We may do this when we consider your rental property to be a total loss or when we choose to do so. If we pay you the buildings sum insured, then your policy ends and you don't get a refund of your premium. …
Paying for 'other cover' If we agree to pay you for other cover, we will choose the method of settlement."
Policy page 19 terms promise cover for Listed Events. The words "In this section, we tell you what events, you are covered for and any specific exclusions and conditions that apply to the event" (Bold added) describe specific characteristics of the event, but for which, the promise of cover applies. Likewise, Policy Page 24 terms promised cover for the event of loss or damage caused by a fire. The following "specified conditions loss or damage caused by fire not covered" further define the risk covered.
The policy does not cover the risk of fire started with the intention to cause fire by the plaintiff or by someone who entered the Property with the plaintiff's consent and who is not a tenant or other guest.
The Policy is to be construed as a commercial contract, and in my view, the specific Fire clause affects the object of the contract for promised landlord/tenant cover, by containing the field of cover to that risk, and excluding risk arising from the owner's retained responsibility to secure the property from damage caused intentionally by persons with the owner's consent entering it other than in association with the agreement for tenancy: McCann v Switzerland Insurance Australia Ltd. (2000) 203 CLR 579 at [22]; CGU Insurance Ltd. v Porthouse (2008) 235 CLR 103 at 116 per Gleeson CJ at [43]; Darlington Futures Ltd. v Delco Australia Pty. Ltd. (1986) 161 CLR 500 at 510-511.
Every policy of insurance must be construed on its own wording but, in my opinion, support for this construction is found in the decision of Middleton J in Secure Funding Pty Ltd v Insurance Australia Ltd [2010] FCA 1094 at [13].
The Policy, page 37, General exclusion, applies to all cover under the contract of insurance. It excludes, as beyond cover, loss or damage arising from an intentional act or omission of the plaintiff or someone acting with his consent.
I note the following: 1. In relation to building, the nature of recovery to which the plaintiff might be entitled is disputed and is subject to a Policy construction issue. Assessment is to be referred out. 2. Assessment of the Contents claim falls well within the quantum limits of the Policy. 3. Assessment of the Loss of Rent claim falls well within the quantum limits of the Policy.

[10]

What is the standard of proof required for the defendant to satisfy its onus?

In order to satisfy its onus of proof, the defendant seeks to prove that Mr Sen was upon the Property with the intention of starting the fire to cause damage, that Mr Sen entered the Property at the time that he started the fire with the consent of the plaintiff and/or that when Mr Sen started the fire he was acting with the plaintiff's consent. Each of the first and last of these three elements require proof of a case of fraud and high level civil wrongdoing. Following from my construction of the specific Fire exclusion clause, the second element of consent does not require that the plaintiff consented to Mr Sen's entry for the purpose of Mr Sen starting the fire.
Accordingly, on my construction of the exclusion clause, whether the plaintiff consented to Mr Sen's entry upon the Property does not require proof that the plaintiff engaged in fraud or high level civil wrongdoing. It does however require proof that Mr Sen intentionally started the fire in order to cause damage and therefore requires proof of Mr Sen's high level civil wrong.
The parties agree that gravity of the civil wrong alleged in the defendant case requires that in order for the defendant to succeed in its onus of proof, its evidence must provide clear or cogent proof satisfying the balance of probabilities reflecting the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. A court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. Albeit Mr Sen is not a party to the proceedings, the element of the defendant's case that Mr Sen intentionally started the fire also requires that quality of proof, in my opinion: s 140(2)(c) Evidence Act; Briginshaw v Briginshaw (1938) 60 CLR 336 at [361] to [362]; Perpetual Trustees Victoria Limited v Cox [2014] NSWCA 328 per Leeming JA (Macfarlane and Emmett JJA agreeing) at [105].
The case being circumstantial and direct evidence being not available of Mr Sen's activity what is required is evidence giving rise to a reasonable and definite inference; meaning evidence that does more than give rise to conflicting inferences of equal degrees of probability. For the defendant to succeed, it is not necessary that the proof achieve a level of entire satisfaction of the court of the fact to be found: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) 17 ANZ Insurance Cases 61-974; [2013] VSCA 144.

[11]

The Plaintiff and Mr Sen

The defendant seeks to make its case through the fact that Mr Sen's Scene Phone was found at the location of the fire.
The defendant alleges that Mr Sen started the fire with the use of petrol. Reference was made to credit card records of the plaintiff recording the purchase of petrol in the days leading up to the fire. I considered that evidence to be so imprecise in tying the petrol purchased to Mr Sen as to be of little weight, if not equivocal and therefore not to be of assistance in my determination of the question whether the circumstantial evidence gave rise to the positive inferences for which the defendant pressed.
There was some evidence that the tenants had periodically burnt off rubbish in a large drum at the rear of the Property and may have used petrol to ignite that burn off. There was evidence about a red petrol container with a spout kept about the Property. The plaintiff cross-examined each of the tenants, Messrs Oudin and Victorsen, as well as Mr Ritchie, the defendant's Commercial and Criminal Forensic Consultant, who investigated the fire about that petrol container.
I did not find that that evidence sufficiently connected use of the petrol container with the fire for it to be of assistance. If Mr Sen or anyone else lit the fire using petrol; there is no reason why he or she would not have brought it to the Property and then taken away any container he or she used.
A fact of significance is the relationship between Mr Sen and the plaintiff at the time of the fire. A substantial part of the evidence, particularly cross-examination of the plaintiff, went to the closeness of that relationship. The plaintiff was pressed as to whether or not Mr Sen was his "best friend". In my view, the terminology "best friend" is not of such precision as to be conclusive. The plaintiff acknowledged that he and Mr Sen grew up in the same village in Fiji albeit Mr Sen was older than himself. Their business relations in Sydney involved Mr Sen being both the plumber used by the plaintiff when required for work at the subject rented premises, and also at the plaintiff's home and a client of the plaintiff's financial services business. At the time of the fire Mr Sen was working at the plaintiff's home building an outdoor kitchen. In cross-examination, the plaintiff acknowledged that at the time of the fire he and Mr Sen were "close friends". As will be seen, they were in frequent contact, daily by mobile phone. The relationship was close and their interpersonal engagement frequent.

[12]

The Defendant's First Case - the Lighting of the Fire

A substantial factual platform of the defendant case was to prove that the plaintiff operated an illicit telephone being a pre-paid Optus mobile, identified in the proceedings as Phone X. The importance of that component of the defendant case was to prove that Phone X was contacted by Mr Sen when the fire was started, using the illicit pre-paid Vodafone mobile Scene Phone. If the plaintiff was the user of Phone X, then he and Mr Sen communicated when the fire was started. The subject call was made at 23:23:49 and lasted 90 seconds.
Neighbours reported the fire to 000 only 3 minutes and 11 seconds after the commencement of that subject call and 1 min and 41 seconds after the end of the call.
Counsel for the defendant identified on the first day of the hearing its case on the significance of Phone X's use in these terms: "Your Honour will be satisfied that they were numbers that were called by Mr Sen, including a number four minutes before we say the fire started. He lost that phone, and then he lied about it. We say that Mr Sen and the plaintiff had a large number of dealings, including on the day leading up to the fire, including Mr Sen calling a false telephone number, false mobile phone, held in a false name by the plaintiff. Your Honour will be taken through a series of telephone records that link up those phones." (The reference to the phone "lost" is a reference to the Scene Phone. The "false mobile phone" referred to is Phone X)
Paragraph [29] of Plaintiff Closing Submissions points to the defendant case on the use of Phone X by the plaintiff as being a "new (and previously unparticularised) element to its fraud case". The plaintiff did not seek an adjournment of the hearing, nor did the plaintiff object to the defendant's amendment of its pleading to include that particular. In closing, the plaintiff does not put that the defendant is not entitled to move on its case that the plaintiff did use Phone X, and gave false answers in that regard to Mr O'Mullane, the insurer's investigator. It is accordingly unclear to me what gravity, if any, the plaintiff ascribes to the submission.
In oral evidence, the plaintiff denied use of Phone X. In my view, the "general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him" which requires pleadings to state with sufficient clarity the case of the party whose averments they are; was not breached here both because it was raised early on and aware that he would have to face it, the plaintiff elected to participate in the hearing relying upon his denials: Gould & Birbeck & Bacon v Mount Oxide Mines Limited (in liquidation) [1916] 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale S.A. (en liquidation) v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 at 287 per Mason CJ and Gaudron J.

[14]

Plaintiff Alternative Hypothesis - Starting the Fire

The plaintiff attempted through cross-examination of the defendant forensic fire expert, Mr Ritchie, and past tenants Messrs Oudin and Victorsen, to found hypotheses alternative to Mr Sen having lit the fire. The hypotheses for which the plaintiff contends are: 1. that the fire was started by an unknown person, perhaps a tenant, who forcibly gained entry by removal of the window to Bedroom 1; or 2. that the fire was started by a person such as a disgruntled tenant whose association with the Property made them aware that petrol was available, it being kept in a red container for the purpose of burning off rubbish in a drum at the rear of the Property.
As already observed, the rear of the Property was not secured from the street. This is not a case where persons identifiable with access to the Property narrow the field of possible arsonists. Over the several years of its rental to Mr Mir, sub-tenants had come and gone.
When the tenants were evicted on 31 May 2012, the underlying dispute was that they had refused to pay rent because, in their view, the plaintiff had failed or refused to maintain the hygiene of the Property and to perform repairs. Mr Oudin listed those issues as: 1. rats had chewed holes in the walls; 2. the garage ceiling had started to collapse; 3. the kitchen ceiling had started to collapse; 4. the bathroom tiles started falling off; 5. the Property was infested with cockroaches; and 6. the washing machine broke.
In his affidavit evidence, Mr Victorsen made similar complaints.
The evidence of Messrs Oudin and Victorsen was that previously cordial and open dealings between the several sub-tenants, including themselves and the plaintiff, had broken down. Whereas previously the plaintiff had come to the Property and spoken with them and other sub-tenants, the point was reached where, when the plaintiff came to the Property, only the contracted tenant, Mr Mir, dealt with him.
Following the Sheriff evicting the tenants on 31 May 2012, arrangements were made for Messrs Oudin, Victorsen and tenant Geoffrey Markham to return at 4.00 p.m. so that they could collect the remainder of their belongings. In the conduct of this arrangement, Mr Sharma sought the presence of police. There was some evidence of strong words being used by Mr Oudin to the plaintiff at that time. Mr Victorsen was not cross-examined in regard to it, nor as to whether any confrontation occurred at the time of their returning to the Property to pick up belongings.
Part of Mr Oudin's affidavit evidence, in regard to which he was strongly cross-examined, included his recollection of conversations with the plaintiff which occurred at the end of 2011 or early 2012, in which, among other things, the plaintiff said words to the following effect: Mr Sharma: "This property is paid off now and heavily insured, so if anything happened to it, like if it was burnt down, I would get the insurance money." Mr Oudin: "That's your business, I don't want anything to do with it."
In cross-examination, the plaintiff put to Mr Oudin that his anger with Mr Sharma, arising from the tenancy dispute and eviction, was so extreme that he had included that conversation in his affidavit, but that it had never occurred.
I accept Mr Oudin as a witness of truth, having observed him in the witness box. In particular, he did not impress as a witness attempting to cause the plaintiff harm by his evidence. One instance when this was apparent was when it was put to Mr Oudin that in the event of such a conversation, the plaintiff may have been joking. Mr Oudin's answer was "It's a long time ago. I can't really remember". Whilst Mr Oudin was adamant that the words were spoken to him, had he been giving false evidence with the intent of harming the plaintiff; then, he would most likely have been equally adamant that the plaintiff spoke the words seriously, rather than make the concession, which he did that the plaintiff might have been joking. I accept Mr Oudin's evidence.
I accept Mr Oudin's account of that conversation.
There is no evidence identifying any tenant of the Property with a disposition toward the plaintiff as to commit the extreme and criminal act of setting fire to the Property. That an individual would destroy the Property by fire in retribution for a simple tenancy dispute is, in my opinion, an unlikely hypothesis.
Naturally, it is possible that any person such as a vandal may have deliberately started the fire in the unoccupied Property. In my view, having observed Messrs Oudin and Victorsen give oral evidence, I am satisfied that neither of them had anything to do with or knew anything about the deliberate lighting of the fire. My assessment of them, having observed them give their evidence, is that whilst they may have been angry with the plaintiff, they did not bear him such malice as to commit such a serious criminal act.
Nothing from their evidence as a whole raises to a level beyond a mere possibility that the fire was started by a disgruntled tenant or a stranger.
The defendant case relies on inferences it submits should be found to arise on the evidence of contacts between mobile telephones. The evidence is selected from records of inter-phone contacts shown in account records of charges for (outgoing) communications obtained from telephone service providers.
The records of accounts of the mobile phone providers did not record incoming contact except for voicemail deposits. The evidence relied upon did not expose the content of the communications, but only that it was SMS, voice call or voicemail. The locations recorded for the subject mobile phones when making the contacts were approximate only being the attributions ascribed to the network facilities with which the sending phone connected. Duration of contacts was recorded.

[15]

Was the Plaintiff the User of Phone X?

The plaintiff's acknowledged mobile phone, known in the proceedings as Sharma Mobile, used Optus as provider. Mr Sharma maintained the number 0415 595 966 from 2001 and it remained his Sharma Mobile contact at the date of hearing. Over that period, he had replaced his mobile phone from time to time. The plaintiff's sister, who lives with he and his wife, is named Hema. The plaintiff gave evidence that within the home, he, his wife and Hema, use each other's mobile phones on the basis that they might use whichever phone they picked up. Hema's phone used Optus as provider, and its number was 0421 576 067.
Phone X was a phone using pre-paid Optus services, and its number was 0415 043 531. Phone X was registered in the name of Mr Hayden Thompson.
Mr Thompson had been a tenant of the Property until some time during the second half of 2011. Therefore, Mr Thompson had not been a tenant of the Property for between six and twelve months preceding the fire. He was not a tenant of the Property during the dispute between tenants and the plaintiff. Mr Thompson subsequently lived at 5 Tallowood Crescent, Bradbury, the address used to register Phone X. Messrs Oudin and Victorsen were well acquainted with Mr Thompson. They too lived at that address. By knowing the plaintiff, Mr Thompson had some limited exposure to the Sydney Fijian/Indian community. Mr Thompson was not a member of or active participant in that community. The evidence did not identify him as a person associated with persons in Fiji.
That Phone X was registered to Mr Thompson is some evidence of it being his phone. But there is no evidence before me showing what proof of identity was required to register the mobile phone number account. For instance, the evidence is that Scene Phone was falsely registered to a named person and address.
Mr Thompson was not called in evidence. Det. Snr. Const. Rogers, as he then was, did attend Mr Thompson for interview, but the content of that interview was objected to and not admitted into evidence.
Having considered the evidence of use of Phone X to communicate with persons of Fijian derivation, which follows, I find it to be very unlikely that Mr Hayden Thompson was the user of Phone X. Accordingly, I find that the registration details for Phone X do not assist in identifying its user. I find that Phone X was falsely registered.
The defendant's approach was to show that analysis of the account records of use of Sharma Mobile and of Phone X showed a common user. The defendant relies on evidence of patterns of use of the two mobile phones as evidence which infers that they had a common user.
The defendant produced schedules showing that common use of each of those phones to communicate with the contacts (1) to (12) below. The defendant cross-examined the plaintiff with use of those schedules (as MFIs 5 and 6).
Accuracy of the defendant's schedules was broadly accepted and, in any event, I am satisfied as to that accuracy. Having been taken, where relevant, by counsel to the voluminous account records contained within the Tender Bundle Exhibit 4, I am aware that numbers in the right hand margin of pages within the schedules refer to pages of Exhibit 4.
For convenience, I attach the schedules analysing common Sharma Mobile and Phone X contact, being Annexures E to P to Defendant's Closing Submissions.
The plaintiff was not permitted mobile phone use after 14 August 2012 due to his being remanded in jail on charges unrelated to the matters the subject of these proceedings.
The identified telephone numbers of the common contacts were: 1. Navau (aka Ashwini Navau) - Fiji +679 258 439; 2. Unnamed User - Fiji +679 972 0766; 3. Unnamed User - Fiji +679 976 8831; 4. Unnamed User - Fiji +679 878 5096; 5. Unnamed User - Fiji +679 920 0352; 6. Unnamed User - Fiji +679 725 5391; 7. Unnamed User - Fiji +679 987 9638; 8. Archana - New Zealand +64 275 716 333; 9. Anshu - Fiji +679 995 0027; 10. Unnamed User - India +91 987 188 800; 11. Priya Teacher - Fiji +679 948 777; 12. Unnamed User - New Zealand +64 210 274 9666; 13. Ambika Asthana - Australia 0431 729 560; and 14. Shayal Prestons - Australia 0435 618 252.
Names identified for contacts (1), (8), (9), (11), (13) and (14) were as appeared in the contacts file of the plaintiff's Sharma Mobile.
It is not suggested that the persons using the common contact phones were actively involved in the issues in these proceedings.
For efficiency, where in these reasons I refer to the contacts, I will refer to the name ascribed to the contact (where that is in evidence), to the country of its location, and to the last three digits of the number. In this way, for example, the first of the number will be referred to as "Navau - Fiji 439".

[26]

Annexure O - Contacts from Phone X and Sharma Mobile to Priya Teacher - Fiji 777

Between 12 May 2012 and 20 May 2012, Sharma Mobile was used to text and voice contact Priya Teacher - Fiji 777 12 times.
Between 12 May 2012 and 20 May 2012, Phone X was not used to contact Priya Teacher - Fiji 777.
On 21 and 22 May 2012, neither Sharma Mobile nor Phone X were used to contact Priya Teacher - Fiji 777.
On 23 May 2012 at 15:09, Phone X was used to voice contact Priya Teacher - Fiji 777 for 27 seconds.
On 23 May 2012 at 15:10, Sharma Mobile was used to text Priya Teacher - Fiji 777.
Between 23 May 2012 at 15:12 and 23 May 2012 at 17:13, Phone X was used to voice contact Priya Teacher - Fiji 777, 4 times of varying duration between 7 seconds and 15.5 minutes.
On 23 May 2012 between 15:12 and 17:13, Sharma Mobile was not used to contact Priya Teacher - Fiji 777.
Between 24 May 2012 and 29 May 2012, Sharma Mobile was used to text Priya Teacher - Fiji 777 on 5 occasions.
Between 24 May 2012 and 29 May 2012, Phone X was not used to contact Priya Teacher - Fiji 777.
On 30 May 2012, Sharma Mobile and Phone X were not used to contact Priya Teacher - Fiji 777.
On 31 May 2012 at 18:03, Phone X was used to voice contact Priya Teacher - Fiji 777 for just less than 45 minutes.
On 31 May 2012 between 18:03 and 18:48 (18:03 + 45 minutes for duration of Phone X voice contact), Sharma Mobile was not used to contact Priya Teacher - Fiji 777.
Between 31 May 2012 at 18:53 and 3 June 2012 at 14:49, Sharma Mobile was used to text and to voice contact Priya Teacher - Fiji 777, 30 times.
Between 31 May 2012 at 18:53 and 3 June 2012 at 14:49, Phone X was not used to contact Priya Teacher - Fiji 777.
On 3 June 2012 at 17:13, Phone X was used to voice contact Priya Teacher - Fiji 777 once for duration of 12 seconds.
On 3 June 2012 at 17:13, Sharma Mobile was used to text Priya Teacher - Fiji 777 once.
The account records being in minutes and the Phone X voice contact being for only 12 seconds, the evidence is equivocal as to whether or not on 3 June 2012 at 17:13 Sharma Mobile and Phone X were used to contact Priya Teacher - Fiji 777 simultaneously. The voice contact from Phone X being for only 0.2 of a minute; mathematically it is more likely than not that the contact was not simultaneously transmitted. Time is taken for a user to type a text message and because a user can voice contact on one phone whilst typing a text on the other. The evidence of use at 17:13 is not likely to be of simultaneous use, or be proof against finding the fact of common user.
On 4 June 2012, Sharma Mobile was used to text Priya Teacher - Fiji 777 once.
On 4 June 2012, Phone X was not used to contact Priya Teacher - Fiji 777.
On 5 June 2012, Phone X was used once to voice contact Priya Teacher - Fiji 777 for a duration of .75 minutes.
On 5 June 2012, Sharma Mobile was not used to contact Priya Teacher - Fiji 777.
Between 6 June 2012 and 8 June 2012, Sharma Mobile was used to text Priya Teacher - Fiji 777, 3 times.
Between 6 June 2012 and 8 June 2012, Phone X was not used to contact Priya Teacher - Fiji 777.
On 9 June 2012 at 16:51, Phone X was used to voice contact Priya Teacher - Fiji 777 for duration of just less than 18 minutes.
On 9 June 2012 between 16:51 and 17:09 (16:51 + 18 minutes duration of Phone X voice contact), Sharma Mobile was not used to contact Priya Teacher - Fiji 777.
On 9 June 2012 at 19:54, Sharma Mobile was used to text Priya Teacher - Fiji 777.
On 9 June 2012 at 19:56, Phone X was used to voice contact Priya Teacher - Fiji 777 for duration of just less than 6 minutes.
On 10 June 2012, Phone X was used to voice contact Priya Teacher - Fiji 777.
On 10 June 2012, Sharma Mobile was not used to contact Priya Teacher - Fiji 777.
Between 11 June 2012 and 9 July 2012, Sharma Mobile was used to text Priya Teacher - Fiji 777, 14 times.
Between 11 June 2012 and 9 July 2012, Phone X was not used to contact Priya Teacher - Fiji 777.
In summary, between 12 May 2012 and 9 July 2012, Sharma Mobile and Phone X were used to contact Priya Teacher - Fiji 777, but not simultaneously.

[28]

Do the Service Provider Records Prove the Plaintiff used Phone X?

Only outgoing use of Sharma Mobile and Phone X and incoming deposits to voicemail are recorded in the evidence.
Over the period 5 January 2012 to 12 August 2012 Sharma Mobile, and over the period 30 April 2012 to 13 June 2012 Phone X, were used in excess of 700 times in total to communicate with the 12 common international contacts.
Sharma Mobile and Phone X were not used to contact each other.
I was informed by counsel that Optus account records recorded use of Sharma Mobile to the second but Vodafone account records for Phone X only timed use to the minute.
The parties were unable to find a single instance of simultaneous use of Phone X and Sharma Mobile in total phone use records in Exhibit 4. Pages 1785 to 1909 contain in excess of 3,500 instances of use of Phone X between 30 April 2012 and 20 June 2012. Pages 1049 to 1757 contain in excess of 4,000 instances of use of Sharma Mobile between the same dates. Accordingly, records of the combined heavy 51 day use of each phone did not find them to be simultaneously used across a field of in excess of 7,500 instances of use.
On 31 May 2012, from 18:03 for about 44 minutes, whilst Phone X was being used to voice contact Priya Teacher - Fiji 777, Sharma Mobile received 11 contacts which all went to voicemail deposits, and was not used to make any contact (Exhibit 4, Tender Bundle, Volume 7, page 1,674X).
Also on 31 May 2012, use of Phone X included texts to: 1. the common contact Navau - Fiji 439 between 7:48 and 10:33, 7 times; and 2. texts to Fiji +679 977 6190 at 10: 34 and again at 17:58, immediately preceding the 44 minute call to Priya Teacher - Fiji 777. This shows Phone X being used to contact Fiji +679 977 6190, in proximity of time to its user communicating with the common Sharma Mobile and Phone X contact numbers.
Phone X also texted Fiji +679 977 6190 on 19 June 2012 and on 20 June 2012. Sharma Mobile texted the common contact Priya Teacher - Fiji 777 on 11, 18, 20 and 24 June 2012. The plaintiff was out of Sydney and travelling in India between 18 June 2012 and 4 July 2012. In that period, Sharma Mobile was also used to contact Unnamed User - India 800. Accordingly, the evidence shows use of both Sharma Mobile and Phone X of a pattern not dissimilar to use of both phones whilst the plaintiff was in Sydney.
Whereas Plaintiff Closing Submission [85] was that the "most telling proof" that the plaintiff was not the user of Phone X was the evidence that Phone X did make calls on 19 and 20 June 2012 when the plaintiff was in India; that submission was based upon the proposition which the plaintiff subsequently conceded was wrong, that being a pre-paid Australian mobile phone, Phone X could not make international calls whilst overseas. Indeed, on each of those days whilst the plaintiff was in India, Phone X was used to call a Fijian number.
Both Phone X and Sharma Mobile were used to communicate with contacts consistent with their user being a member of the Fijian-Indian community in Sydney. Defendant Closing Submissions Annexures E to P, present their combined use to communicate with 10 Fijian persons, one Indian person and one New Zealand person in common. Phone X was used to contact a number of additional Fijian numbers which were not contacted by Sharma Mobile.
That the two phones were not of entirely congruent use is not inconsistent with their being operated by a single user; whereas, the extent of their common pattern of use shown in the defendant's Annexures is, on balance, evidence supporting the positive inference of single user.
Phone X was first registered on 19 April 2012, used frequently up to 3:16 on 13 June 2012, less than 4 hours after the start of the fire, and then not used to make calls for one week.
In oral submissions, counsel for the plaintiff conceded "we simply cannot respond to all of the coincidences that have been thrown up by this extraordinarily detailed analysis by the defendant" of the service provider account records for Sharma Mobile, Phone X, Mr Sen's Phone, Scene Phone and Hema's mobile.
The question for determination is whether the expansive circumstantial evidence of mobile phone activity is merely coincidental as the plaintiff's submission characterises it, or is of detail which fairly and laboriously analysed, supports the positive inferences upon which the defendant seeks to make its case?

[29]

Does the Account Record Evidence Infer the Plaintiff used Phone X?

In Closing Written Submissions, the plaintiff, in substance, put that the defendant's analysis of phone records fell short of establishing a link between the plaintiff and Phone X, and in some sequences "tend to suggest" that Phone X was operated by a third person, not the plaintiff. Those submissions were: 1. The plaintiff pointed to the fact that there could be other individuals who might have operated Phone X. Specifically, the plaintiff referred to the fact that Phone X was registered to Hayden Thompson at his address 5 Tallowood Crescent, Bradbury. The plaintiff referred to the fact that Messrs Hayden Thompson, Oudin and Markham, who were all ex-sub-tenants of the principal tenant Mansur Mir, were living at that address when police investigated after the fire. The plaintiff also pointed to the fact that Phone X was registered on 19 April 2012 at about the same time as the rent and maintenance dispute was in its currency. Messrs Oudin and Mir lived at the Property at the time of that dispute and were evicted by the sheriff on the action of the plaintiff on 31 May 2012. On these facts, the plaintiff hypothesised that Phone X and the fire could be associated with persons disgruntled with the plaintiff. Consideration: (1.1) The plaintiff did not put the topic of Phone X to Messrs Oudin or Victorsen at all during the cross-examination, as was its obligation in order to propose the hypothesis in relation to them, Hayden Thompson and Markham. One might expect that as housemates, they might be aware of each other's mobile phone numbers. There was no evidence that Mir knew Hayden Thompson's address. There was no evidence of grievance, friction or poor interpersonal relations between the plaintiff and Mir. (1.2) That Optus records of registration of the Phone X account 0415043531 ascribe it to Hayden Thompson at his address is, in my opinion, of little persuasion in the absence of evidence of his participation in or knowledge of that registration and in the absence of any particulars of his dealing with Optus or with Phone X. It was a prepaid phone, so it is not to be assumed that there was dealing between Optus and Hayden Thompson bringing to his notice that Phone X was registered to his particulars. (1.3) The circumstances relating to Scene Phone infer that registration particulars of covert pre-paid mobile phones are not reliable evidence of identity of user. The uncontested evidence is that Scene Phone was registered covertly to Raj Kunwar at Unit 15, 48 Ingleburn Road, Ingleburn. Det. Snr. Const. Rogers searched that name, and address, on the internal COPS system, the Roads and Maritime Services system and the Department of Immigration's system and could not locate a person of the name Raj Kunwar. Having misread the address as 1548 Ingleburn Road, Ingleburn, he did not make inquiries at the correct property. Having misread the address as 154B Ingleburn Road, the insurance investigator, Mr O'Mullane, did not make inquiries at the correct property. Nevertheless, the Police search, whilst not conclusive, is persuasive that an adult person of that name was not living in Sydney. (1.4) The evidence supports an inference that registration of the prepaid Phone X to Hayden Thompson or the 5 Tallowood address, could be achieved illicitly without Hayden's Thompson's knowledge. Phone X against the factual evidence of availability of false registration and without evidence of Optus dealing with Hayden Thompson, invites substitution of suspicion for inference, or invites intuition over ratiocination. The evidence does not, as the plaintiff further submits, prove inferences requiring the defendant to call Hayden Thompson or Mir in rebuttal: Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17 per Dixon J (as His Honour then was) at 61; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320 to 321: in Payne v Parker [1976] 1 NSWLR 191 Glass JA at 202D said: "Unless, upon the evidence, the tribunal of fact is entitled to conclude that [the witness] probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him." (1.6) Most tellingly, the evidence of the Optus registration of Phone X is far less persuasive than analysis of the records of its use in determination of the identity of its user. As set out above, that common use with Sharma Mobile predominately involved contacts of Fijian/Indian names, and communication with persons in Fiji. The evidence does not support Hayden Thompson having associations fitting those use patterns. (1.7) Further, because the plaintiff only tendered evidence in his case in Reply; that the plaintiff sought to prove Hayden Thompson, Oudin or Mir was the user of Phone X, meant that the onus to call them fell upon him. In addition, Hayden Thompson and Mir were equally available to both parties. Mir was well known to the plaintiff since 2005, having originally lived at the Property when it was the plaintiff's residence. These factors also weigh against the plaintiff's suggestion of a onus upon the defendant to call Hayden Thompson and Mr Mir as witnesses in its case. 1. The plaintiff pointed to the pattern of phone use in Defendant Closing Submissions, Annexures J, L, M, N and O to show that Sharma Mobile was used more for texting, whilst Phone X was used more for what the plaintiff described as "one or a few isolated voice calls". The plaintiff put that this suggests separate operators who favoured different modes of contact. Consideration: (2.1) This submission omits reference to Defendant Closing Submissions Annexures E, F, G, H, I and K. When they are included in the consideration, a difference of mode of use between Phone X and Sharma Mobile is not made out. The annexures E and I record hundreds of communications by both Sharma Mobile and Phone X. They are all texts. Annexure F shows Phone X voice contacts, whereas Sharma Mobile was only used to text. In total, the Annexures show a common mode of use being preference for texting. 1. The plaintiff suggested that Defendant Closing Submissions Annexure K was of little probative value in the proof of Unnamed User - Fiji 638 being a common contact of the user of Sharma Mobile and of Phone X because it records only one Sharma Mobile text. Consideration: (3.1) Logic does not support the plaintiff's submission. The single use of Sharma Mobile established the fact of use of that phone to contact Unnamed User - Fiji 638. A greater number of uses would evidence not more than more use of Sharma Mobile in accordance with that fact but the single communication is not less than proof that Sharma Mobile contacted unnamed user Fiji 638. 1. The plaintiff submitted that the fact that Sharma Mobile and Phone X (as shown in the Defendant Closing Submission Annexures) were used to contact common people is unremarkable and consistent with Sharma Mobile being the only phone used by the plaintiff in the context of his large network of contacts through his financial planning business, his significant involvement in the Sydney Fijian Indian community, the involvement of members of his family in the Sydney Fijian Indian community, and that he has retained the same mobile phone number since 2001. Consideration: (4.1) That the contact list in the plaintiff's mobile phone was of extraordinary dimension was not the subject of evidence. Even assuming a contact list as expansive as might be deserved of his business and community contacts; the plaintiff submission is of little persuasion against the far more remarkable fact of no simultaneous use by Sharma Mobile and Phone X in contacting the 13 common contacts and over 51 days of prolific use totalling more than 7,400 communications between 30 April and 20 June 2012. (4.2) The submission is of little persuasion against the analysis in Defendant Closing Submission Annexures E to P showing the remarkable feature of the activity of communicating with 13 common contacts over a period of only about 8 months in Australia, New Zealand, Fiji and India.
The plaintiff properly submits that the defendant's statistical analysis of phone use from account records which do not show the content of the communication made, should be limited to statistical value and not permitted to encourage speculation and guess work.
In my view, the Defendant Closing Submission Annexures portraying use of Phone X and of Sharma Mobile to contact common contacts is persuasive evidence that those phones were operated by a common user.
In particular, I consider it most significant that beyond those common contacts across that vast statistical evidence of use, the phones were not used simultaneously as, on the probabilities, would likely be the case but for their being operated by a common user.
The contacts are strongly consistent with a Fijian/Indian Sydney association of the user, and therefore consistent with the plaintiff's active business and social associations with persons of that cultural and Fijian-derived connection.
The evidence does not support Mr Hayden Thompson being of that cultural association, either in business or socially, and as exposed above, in my opinion, not much weight can be attributed to evidence that Phone X was registered to Hayden Thompson.
The statistics of use proved from the account records are particularly persuasive because of the significant volume not only of there being the large number of 13 common phone contacts and of the number of those contacts identifiable by place or by name as Fijian/Indian-derived; but perhaps more importantly by the large volume of calls fitting a pattern of use consistent with a single user across thousands of communications over an eight month period spanning the date of the fire.
In order for the defendant to satisfy its burden of proof, the statistical analysis of account records of mobile phone use must provide positive and cogent evidence supporting the clear inference that Sharma Mobile and Phone X were operated by a common person, that person being the plaintiff.
In my opinion, the evidence does positively support finding the inference of a common user of Sharma Mobile and of Phone X. It is objective evidence fairly described, on analysis, as all pointing in the direction of finding that positive inference. The next question is whether the plaintiff's own oral evidence was successful in contradicting that inference.

[30]

Reliability of the Plaintiff's Oral Evidence Denying Use of Phone X

The plaintiff denied that he was the user of Phone X and any knowledge of Phone X.
The plaintiff informed the hearing that he would not give evidence in chief.
The defendant opened explaining that it would prove by circumstantial evidence in the form of analysis of mobile phone account records, that: 1. the plaintiff was the user of Phone X; 2. Mr Sen was the user of Scene Phone which was found at the Property the morning after the fire; and 3. that the plaintiff connived with Mr Sen who deliberately destroyed the Property by fire.
The plaintiff sat in Court and heard counsel for the defendant explaining its case and the evidence before he entered the witness box to give oral evidence in his case in Reply.
The plaintiff's oral evidence is to be considered as given when he understood the substance of the case against him, and specifically, the use which the defendant sought to make of the mobile phone evidence.
Before giving his evidence, the plaintiff had listened to the defendant expert witness, Mr Ritchie, the ex-tenants, Messrs Oudin and Victorsen, and Det. Snr. Const. Rogers. He heard Mr Oudin cross-examined on his affidavit evidence that on two or three occasions the plaintiff had spoken to him in words to the effect that if the Property was burnt down, the plaintiff was well insured.
I formed the view that the plaintiff's approach to the giving of his oral evidence is fairly described as an exercise in obfuscation, fed with an understanding of the case which the defendant sought to prove by circumstantial evidence.
The plaintiff denied an ability to recall any phone number whatsoever except that of his own Sharma Mobile. He claimed that he could not even recall the landline telephone number for his own home. He claimed to be not able to recall who any of the seven Indian, New Zealand and Fijian persons named in the contacts file of his Sharma Mobile and identified in the defendant's case as the common numbers contacted by Phone X and Sharma Mobile were.
He proffered that persons in his office, his wife and sister, and when he was overseas, his girlfriend, a friend and members of travelling groups, as well as his website designer; all had access to Sharma Mobile such that he could not concede whatever be the specific instance of its use to make a contact being put to him in cross-examination. He conceded virtually nothing.
On the sixth question in cross-examination, the plaintiff was asked to identify Fiji telephone number +679 868 3423. His answer was: "Sir, apart from my mobile number, I don't remember any number by heart."
In the context that the plaintiff was being cross-examined on mobile phone use four years past (at about the time of the fire), and the reality that some persons are unable to remember telephone numbers, I was cautious to not readily take the view that he was obfuscating rather than being cautious of making admissions in regard to phone use which he did not recall. His claim that he was very liberal with access to his phone in that his office workers, sister, wife and visiting friends would use it was a further basis for caution against attributing to obfuscation, his claimed inability to recall any of the history of communication between his Sharma Mobile and the contacted numbers and persons, upon which the defendant sought to rely through cross-examination. The defendant proceeded by cross-examination employing the Schedules attached to these reasons from Defendant Closing Submission, Annexures D to P (which were MFI-5).
His performance over the course of the cross-examination, however, caused me to consider the plaintiff to be deliberately refusing to concede and thereby disclose his knowledge of the identity of persons and mobile phone numbers commonly contacted by his Sharma Mobile and by Phone X.
These reasons will go into some detail of how the plaintiff gave his evidence displaying his refusal to concede and disclose. It is required that I do so because of the determination of the plaintiff's obfuscation which I make.
Quite startling is the evidence as it developed following the plaintiff's denial of knowledge of mobile phone number Fiji +679 868 3423 on Day 4 of the hearing.
Immediately after giving the above quoted answer, counsel for the defendant required the plaintiff to produce his Sharma Mobile. It was marked for identification, and between 4.00 p.m. and 4.40 p.m., counsel for the parties together had access to its contacts file. In the plaintiff's Sharma Mobile contacts file, the number Fiji +679 868 3423 was shown to belong to Rohini Mami. The evidence showed that the plaintiff's sister, Hema, using her own mobile phone (Hema's Mobile), also contacted Rohini Mami.
The plaintiff was taken to Exhibit 4, Phone X account records obtained before the hearing (Exhibit 4, Tender Bundle, page 1842) showing that on 18 May 2012 at 15:58, a call from Phone X to Rohini Mami Fiji +679 868 3423 (Rohini Mami Fiji 423) lasted over 20 minutes, and that Hema's mobile was used to contact Rohini Mami Fiji 423 on 14 June 2012 at 13:16 and again at 19:21, and on 20 June 2012 at 21:08 (Exhibit 4, Tender Bundle, page 793). The plaintiff denied being able to identify anyone of that name.
It was then discovered that overnight between Days 4 and 5 of the hearing, whilst Sharma Mobile was in the plaintiff's possession, common contacts communicated with by Phone X and Sharma Mobile, about which the plaintiff was cross-examined on Day 4, had been deleted. On Day 5, the plaintiff was asked to produce his phone during the luncheon adjournment for expert forensic analysis.
In relation to Rohini Mami Fiji 423, expert forensic analysis by Mr Michael Khoury (affidavit dated 26 September 2016) found that the plaintiff's current iPhone 5 Sharma Mobile last activated (commenced operation) 2015, had been used to contact Rohini Mami Fiji 423 16 times, including several times in February, March and May 2016. This objective evidence is plainly inconsistent with the plaintiff's claim that he could not remember the contact Rohini Mami Fiji 423 on the basis, as claimed by him, of lapse of memory over four years.
Further, on 13 October 2013, Sharma Mobile had texted to Rohini Mami Fiji 423 the plaintiff's email address, sachin@investsmartfp.com.au, and on 11 May 2013, had texted a "Happy Mother's Day" greeting to Rohini Mami Fiji 423. Mr Khoury's affidavit explained that the contacts "deleted" from the phone were recovered by forensic investigative techniques.
Based on my impression of the plaintiff during the course of his evidence, I do not accept the plaintiff's answers given on Days 4 and 5 that he was unable to identify the contact Rohini Mami Fiji 423. These reasons include substantial passages of transcript exposing the context within the hearing in which the plaintiff gave the evidence, so that my determination of impression of his unsatisfactory evidence might be understood.
The sequence of events during Days 4 and 5 of the hearing is important. The plaintiff was exposed at best as unreliable, and most likely unbelievable. That sequence includes the following principal parts: 1. on Day 4, the plaintiff claimed inability to recall his use of his Sharma Mobile; the use put to him being use for communication with persons and numbers also contacted by Phone X; 2. the deletion overnight between Days 4 and 5 of those contacts about which he was being cross-examined; 3. the discovery whilst the plaintiff continued cross-examination on Day 5 of the deletion of the contacts; 4. the giving of evidence under the immunity of s 128 Evidence Act 1995 (NSW); 5. his continued claim of inability to recall numbers and identities of the contacts commonly communicated by Phone X and Sharma Mobile without being able to proffer any rational explanation for phone company records demonstrating those common contacts; and 6. forensic analysis of Sharma Mobile as at Day 5, 23 September 2016, showing its recent use in 2016 to contact numbers and identities in relation to whom, during cross-examination concerning common contacts of Sharma Mobile and Phone X, the plaintiff claimed inability of recall.
During cross-examination on the numbers and identities commonly contacted by Sharma Mobile and by Phone X, the plaintiff was referred to MFI-5. MFI-5 appears as Annexures E to P of the Defendant's Closing Submissions which are attached to these reasons. Those schedules employ visual presentation by use of bright yellow for Sharma Mobile and purple for Phone X, a chronological listing of use of those phones. By use of those colours, the pages of the schedules clearly presented use of each of those illicit mobile phones to contact common numbers and identities.
Initially on Day 4, the plaintiff gave the following evidence: 1. Navau (Ashwini Navau) Fiji 439 (Defendant Closing Submissions, Annexure E) - on being shown the 19 bright yellow coloured entries for texts sent from his Sharma Mobile between evening 30 April 2012 and early morning 3 May 2012, the plaintiff said he had no recollection of that number. 2. Unnamed User - Fiji 766 (Defendant Closing Submissions, Annexure F) - on being shown the 9 bright yellow coloured entries for texts sent from his Sharma Mobile between 1 May 2012 and 6 May 2012, the plaintiff said that he had no recollection of the number. 3. Unnamed User - Fiji 831 (Defendant Closing Submissions, Annexure G) - on being shown the 5 bright yellow coloured entries for texts sent from his Sharma Mobile between 7 January 2012 and 21 February 2012, the plaintiff said that he had no recollection of the number. 4. Unnamed User - Fiji 096 (Defendant Closing Submissions, Annexure H) - on being shown the 6 bright yellow coloured entries for texts sent from his Sharma Mobile between 5 January 2012 and 21 February 2012, the plaintiff said that he had no recollection of the number. 5. Unnamed User - Fiji 352 (Defendant Closing Submissions, Annexure I) - on being shown the 6 bright yellow coloured entries for texts sent from his Sharma Mobile between 1 May 2012 and 3 May 2012, the plaintiff said that he had no recollection of the number. 6. Unnamed User - Fiji 391 (Defendant Closing Submissions, Annexure J) - on being shown the 27 bright yellow coloured entries for texts and a voice call from his Sharma Mobile between 1 May 2012 and 2 June 2012, the plaintiff said that he had no recollection of the number. 7. Archana - New Zealand 333 (Defendant Closing Submissions, Annexure L) - the plaintiff was taken to, it being not a Fijian number but a New Zealand number, the bright yellow coloured entries for 64 text messages from his Sharma Mobile between 6 May 2012 and 10 August 2012. The plaintiff said that he had "no idea" of who the person in New Zealand he texted 64 times over that period would be. 8. Unnamed User - India 800 - the plaintiff was taken to the bright yellow coloured entries. The questions were put on the basis of there being 84 texts. 9. Defendant Closing Submissions, Annexure N does not include 84 texts. Rather, it presents in bright yellow 18 communications from Sharma Mobile, 13 being texts, and 5 being voice calls. Nevertheless, it is a clear depiction of a page in which the whole column is communication from Sharma Mobile to Unnamed User - India 800 between 11 May 2012 and 26 July 2012, and in the middle of the page for date 22 May 2012, appears the purple coloured entry for a 5 minute voice contact from Phone X to Unnamed User - India 800. The plaintiff's evidence was that "it could be anyone" using his Sharma Mobile to regularly have communicated with someone in India. Six of the texts were sent from Sharma Mobile to Unnamed User - India 800 whilst the plaintiff was in India. The plaintiff said that his girlfriend who was with him at the time had access to his phone. That his girlfriend's use would explain contact with the same individual in India as his Sharma Mobile when in Sydney was used to contact before, during and after the plaintiff being in India, is unlikely. The plaintiff denied that the evidence was only consistent with his being the single user of Sharma Mobile. His evidence was as follows: Q. Over that period, which spanned you being in Australia and being in India, there were 84 SMS messages that were sent. Now, it stands to reason, doesn't it, that the person who much have been sending the 84 SMS messages, given that they were sent both from India and in Australia, would have been you? A. No, I don't agree with that. Q. Why? A. The reason is my company's website, which is investsmartfp.com.au, is actually managed and maintained by a person or a company in India. So anybody from my office, from time to time, would be liaising with India in updating certain information on the website. Q. I'm sorry, Mr Sharma, I don't think you understand my question. I'm talking about 84 SMSs being sent between 10 May and 9 July. Do you understand? A. Yes, sir. Q. You realise that, during that period - part of which you were in Australia and part of which you were in, you say, according to your passport, overseas, correct? A. Yes, sir. Q. The only person who had access to your phone during the entirety of that period - that is, from 10 May to 9 August was you, correct? A. No, sir. Not always, no. Q. Did your assistant, who you said had access to your phone, travel with you overseas? A. No, sir. The plaintiff's evidence was that none of his wife, sister, or office workers were with him in India, but he referred to other people who he met in India who had access to his phone. Cross-examination put to him that he was speaking a "black lie" which the plaintiff denied. The plaintiff reluctantly answered as follows: Q. Well, who possibly could have been sending SMSs when you're overseas to an Indian number in circumstances where that same Indian number had been SMSed when you were in Australia? A. I - I don't know, I - Q. No‑one. Correct? Other than you. A. No, that's not correct. 1. Priya Teacher - Fiji 777 (Defendant Closing Submissions, Annexure O) - the plaintiff was taken to the bright yellow coloured entries for texts, voice calls and voice contacts from Sharma Mobile between 12 May 2012 and 9 July 2012. Interspersed were a significant number of the purple coloured entries of contacts from Phone X. As with Unnamed User - India 800, the Sharma Mobile entries included texts, in this instance 7, from Sharma Mobile whilst the plaintiff was in India. Again the plaintiff denied that the use of Sharma Mobile as displayed in the annexure was his own. His evidence on this occasion was: Q. So the proposition I'm putting to you is that these SMS messages, the 84 to this phone number in India and the 69 to this phone number in Fiji, spanned this period. That is, spanned periods when the phone and you were in Australia and when the phone and you were overseas. Do you understand? A. Yes, sir. Q. And what I'm putting to you is it stands to reason, given that you can identify no‑one else who had access to the phone both in Australia and India during this period, that it is more likely than not that those SMS messages were made by you. Correct? A. No. 1. Unnamed User - Fiji 352 (Defendant Closing Submissions, Annexure I) - the first page of the Annexure Schedule shows 6 bright yellow entries for texts from Sharma Mobile between 1 May 2012 and 3 May 2012, and thereafter 23 purple entries for texts from Phone X between 3 May 2012 and 25 May 2012, and over the page another 20 texts from Phone X between 26 May 2012 and 12 June 2012. When the plaintiff was asked whether he rejected the proposition that it was him using Sharma Mobile to make those text messages, he responded that he could not recall "back in 2012".
It is important that the reader of these reasons appreciate that during his evidence, the plaintiff was looking at the pages which became the Annexures to the Defendant's Closing Submissions, and on those pages those identities and numbers were clearly presented to him as contacts commonly made by Sharma Mobile and by Phone X. The use of bright yellow for communication from Sharma Mobile and of purple for communication from Phone X made the defendant's purpose of each schedule to address the commonality of the contact, obvious to him.
As I observed the plaintiff give this evidence, I considered him to be reluctant to disclose any fact of use of Sharma Mobile as was his duty as a party witness to do. On the issues in this case, his purpose for that avoidance would be to refuse to concede similarity of use of Sharma Mobile and Phone X. Obviously that similarity would infer it to be his use. This had been explained during the defendant opening.
The plaintiff conceded that he ran his business and personal life from his Sharma Mobile. His office was physically serviced with only a single landline. He conceded that he travelled throughout Sydney visiting clients in the course of his business and required his mobile phone for work communication. He was a prolific user of his mobile phone.
The pattern and intensity of communication to individuals, displayed in Annexures E to P, includes streams of communication consistent with Mr Sharma's own evidence that he was a prolific user of his mobile phone having it with him as he moved about Sydney and when overseas.
In addition, that his Sharma Mobile was used to continue contacting Unnamed User - India 800 and Priya Teacher - Fiji 777 whilst he was in India, just as it was used when he was in Sydney, makes it unlikely but not impossible that his Sharma Mobile was used by others. I say not impossible because the plaintiff's evidence without identifying any person in particular, was that those travelling companions included Sydney-based Fijian/Indian community members. None of the plaintiff's work assistants, his sister, or his wife, were with him in India, and therefore it is impossible that they used Sharma Mobile to communicate with those common contacts whilst the plaintiff was overseas.
As will be seen, Phone X was also used to communicate with common contacts whilst the plaintiff was in India.
On Day 4 of the hearing, it was put to the plaintiff that Defendant Closing Submissions, Annexure E plainly showed that between 30 April 2012 and 3 May 2012, Sharma Mobile (shown in yellow) was used to text Navau - Fiji 439, then from 3 May 2012 to 12 June 2012, Phone X (shown in purple) was used 203 times to text Navau - Fiji 439 , followed by bright yellow depicting use of Sharma Mobile to text Navau - Fiji 439 31 times between 8 July 2012 and 12 August 2012.
Having been taken to that schedule, the plaintiff refused to initially concede that it was more likely than not that he had been the person using Sharma Mobile to make the text contacts attributed to it. His evidence was: Q. Having been shown all those SMSs messages on the pages that I've taken you to, you would agree, wouldn't you, given that's a Fijian number, that it is more likely than not that you were the person who was SMSing the number, 6799 258 439. You would agree with that, wouldn't you? A. If I can identify the number, I can say. If I'm not able to identify who's number is it, I can't exactly say. Q. Given that there was that volume of SMS messages made on your phone over those two distinct periods in April, May and in July, August, that I've taken you to. Although you cannot recall definitively the telephone number, it's stands to reason, doesn't it, that it is more likely than not that they are SMSs made by you. Correct? A. No, sir. Q. Why won't you make that concession, that it's more likely than not? A. The reason is, if I'm telling you it's more likely, then - first of all, I haven't identified whose number that is, and if I haven't identified, I can't exactly say, yes, I have made the messages or I have not. Q. I'm not asking you to be definitive. I'm asking you deliberately whether or not, given the information that I have conveyed to you, you consider the proposition I have put is more likely than not. That is that you were the person, more likely than not, to have sent those SMS messages. A. I can partially say "yes", because the‑‑ Q. You can what, sorry? A. I can partially say "yes". Q. I'm sorry, I didn't catch that sentence. HIS HONOUR: I can partially say "yes". LEE: I'm grateful, your Honour. Q. I'm sorry I interrupted you. I didn't hear the word, I apologise. Please go on. A. I can partially say "yes". It's my phone, but it's not necessarily it's me, because there's other people who could access to my phone. Even my families use my phone. My sister uses my phone. My mother uses - since I married my wife - uses my phone. If I have relatives who come from overseas or anyone, they use my phone to make phone calls. If I'm in a committee meeting and giving the meeting for call links to be made, they can easily access my phone. Q. When you say, "partially yes", what you're meaning to convey to his Honour is you can't be definitive because of the reasons that you've said, but you concede that it's more likely than not. Would that be fair? A. What I'm saying, if it's my phone, I do use my phone. It's not that I don't completely use my phone. Q. I'm sorry, I just wonder if you would listen and answer my question. By using the expression, "partially yes", I want to put to you that what you're seeking to convey to his Honour is, you cannot be definitive because you say other people had access to your phone, but you agree that it is more likely than not. Would that be fair? A. Yes.
The plaintiff was then specifically taken to the five pages of the purple coloured, 203 text messages from Phone X to Navau - Fiji 439 between 3 May 2012 and 12 June 2012 being a section between the two exterior passages of texts in bright yellow showing use of Sharma Mobile to that number [Day 4 Transcript 217, Line 1 to 219, Line 9]: Q. Now, phone X is the phone that is registered in the name of Hayden Thompson, I want you to assume. Have you any explanation at all as to why it would be the case that SMS's were sent by anyone other than you using phone X? A. Sorry, can you repeat that? Q. Well, you've been sitting in the courtroom for days in which I have said repeatedly that the defendant alleges that you falsely registered phone X in the name of Hayden Thompson and you used it and had access to it. You understand that's being contended, don't you? A. I understand now, yeah. Q. Sorry? A. I understand now. Q. That's been said repeatedly while you've been in the courtroom, hasn't it, or several times, at least? A. Don't know. Q. So your evidence to his Honour, notwithstanding your presence in this courtroom over the last few days, is it, that you had not understood until I just put that proposition to you, that the defendant alleges that you used phone X? Is that what you're saying to his Honour? A. Defendant alleges that I've used phone X, which is Hayden - the phone registered under Hayden Thompson? Q. Yes. A. Yes. Q. That's the first time when you gave that response 20 seconds ago that you understood that that was a contention being made by the defendant. Is that what you say on our oath to his Honour? A. I'm a bit confused here. Q. Well, let me make it clear. A. Yes. Q. You sat through every moment of this court case. Correct? A. Yes. Q. You've been listening. Correct? A. As much as I could concentrate, yes. Q. Did you listen to me saying to his Honour on several occasions that an allegation made by the defendant in these proceedings is that the phone which I call phone X was falsely registered in the name of Hayden Thompson? A. Yes. Q. Right, you understood that? A. Yes. Q. And you also understood that it was being alleged by the defendant that rather than that being operated by Hayden Thompson, it was being operated at material times by you. Correct? A. No. Q. You didn't? A. No. Q. Does it come as a surprise to you to learn that in respect of each of these telephones, each of these telephone numbers, the ten numbers in Fiji, the one number in India and the one number in New Zealand that I took you to, it records communications not only between your number and those 12 numbers but also phone X and those numbers? A. Does it surprise me? Yes. Q. Because there's no rational explanation for that, that you can point to at all, is there? A. I can't talk about the Hayden Thompson phone because I had no idea where it was used, how it was used. Q. No, you said you can point to no other explanation. So I'm asking you to agree with the proposition that you can think of no rational explanation for that, other than the fact that you in fact were the operator of phone X and you agree with that, don't you? A. No. Q. Well, what rational explanation is there? A. I don't know. Q. Right, that's why I've asked you whether you would agree with the proposition that you can point to no rational explanation other than you were the operator of the phone. The answer to that question is yes, isn't it? You cannot point to any other rational explanation. A. I'm a bit confused here, sorry. Q. What I want to suggest to you is you're not confused at all. You realise that through these telephone records it is plan as a pikestaff that you were sending SMS's both‑‑ HIS HONOUR: I reject that question. There's no reason to expect that this witness knows what a pikestaff is. LEE: If your Honour pleases. Q. It is plain as day that you were not only sending SMS's to these numbers in Fiji, India and New Zealand using your own phone, but you were also sending messages on phone X. A. No. Q. I'll ask you again. You can point to no rational explanation at all as to why it is that the records demonstrate that these numbers which were being SMS'd from your usual phone were also then the subject of SMS's from phone X. You have to agree with that proposition, don't you? A. I can't explain that. Q. No, you can't explain it. A. No.
Obviously the plaintiff's answers in the above quoted passage are to be considered in the context of the whole of the evidence. That said, the plaintiff's evidence denying his understanding that the defendant case included proving that he was the user of Phone X was startling. That central element had been plainly explained by the defendant in its opening.
In relation to the common contact with four Australian numbers by Phone X and his Sharma Mobile, the plaintiff gave the following evidence which, in my opinion, continued his non-disclosure and obfuscation provided by his answers in relation to a meaningfully large body of evidence of use of Sharma Mobile, and use of Phone X contacting a meaningfully large number of common contacts, the common contacts being significantly located in Australia, India, Fiji, New Zealand and including contact of numbers in his Sharma Mobile contacts file. His evidence was: Q. You've got no explanation as to why phone X was used to call a number of additional Fijian numbers? A. I mean, I can't explain any phone that's calling any numbers. Q. Phone X was also used to call four Australian numbers in common with your phone; that is, 0431 729 560, 0435 618 252, 0411 000 321, and 0426 502 402. No explanation for that? A. No explanation. I can't explain a specific call but, I mean, I call a large number of people, and the people in the office and my family use the same phone to call different people. I'm well known in the community. People ring for my service. The text message - you know, so I call. Half the time, people call, I don't know who they are because I provide my religious service to them as a marriage celebrant and minister for religion.
After this evidence was given in Day 4 of the hearing, counsel located in the contacts file of the plaintiff's Sharma Mobile that 0435 618 252 was ascribed to Shayal Prestons, and 0431 729 560 to Ambika Asthana.
There is also to be taken into account the plaintiff's delay in answering some questions which was, on occasions, so great that once I watched the Court clock and timed his having taken forty seconds to respond to the question. Observing him, I was concerned that he refrained from voicing his answers to questions whilst he ran through in his mind the plan of obfuscation, distraction and denial in the evidence he was willing to give, and also whilst he interpreted the defendant's purpose in the question to be sure that, by his answer, he was not conceding a connection between himself, Mr Sen and the lighting of the fire.
As narrated below, on Day 5 of the hearing, it was discovered that between Days 4 and 5 of the hearing most of the common contacts about which he had been cross-examined on Day 4 were deleted from his phone. The physical event of Day 4, which might not be as apparent on the transcript as was the experience in the courtroom, was him being asked to produce his Sharma Mobile, Counsel having access to its contacts file, Sharma Mobile being retained at the bar table as MFI 4 and then Counsel together having access to its contacts after Court. At that stage, it had not been handed over for forensic analysis employing systems capable of analysing its recent use and locating deleted information.
On Day 5, the first common contact the plaintiff was taken to was again Rohini Mami - Fiji 423. He was reminded of the evidence of Day 4 that also his sister Hema's phone had been used to contact this number as had Phone X. He was taken to the fact of a 20 minute call from Phone X to Rohini Mami - Fiji 423 on 18 May 2012, and texts from Hema's mobile to Rohini Mami - Fiji 423 at 3:16 p.m. and 7:21 p.m. on the same day, and another on 20 June 2012. The plaintiff said he had no knowledge of the use of his sister's phone. He refused to concede that Rohini Mami - Fiji 423 was someone known to both his sister and the user of Phone X.
His answers which followed, in my assessment of the plaintiff as he gave his evidence, were an attempt to add a new level of refusal to disclose, he relying on his knowledge that common contacts on which he had been cross-examined, and including the Rohini Mami - Fiji 423 contact had been deleted from his phone: Q. Do you know the person R-O-H-I-N-I, Mami, M-A-M-I, Fiji mobile? I want you to assume that that is a contact listed in your telephone you produced to the Court yesterday, Rohini Mami Fiji mobile. Do you understand the person to whom that contact in your mobile phone as of yesterday afternoon relates? A. I know a few Rohini's but I don't know which one you're referring to. Q. Who's the person in your contacts in your current mobile telephone, Rohini Mami Fiji mobile, which is the Fijian number to which I have taken you this morning? A. I can't say. Q. Just so his Honour understands, I've taken you to a telephone where your sister was SMSing at the relevant time and it's a telephone number in your current contacts list in your mobile telephone. Do you accept that? I want you to accept that. A. I'd have to check my contacts to see. See, there's a lot of numbers in my phone which I can't recall or I wouldn't know. Q. Subject to his Honour's direction, can you please get your telephone out and check to satisfy yourself that‑‑ A. Can I be excused to grab the phone? HIS HONOUR: Yes. The plaintiff turned on his Sharma Mobile and entered his password. Counsel approached. The plaintiff could not retrieve Rohini Mami - Fiji 423 from the contacts file in his phone. The plaintiff asked defendant Counsel for the number so that he could dial it: Q. Yes. I'm sorry, could you please go to Rohini Mami Fiji mobile in your contacts, please. Just so we know what's showing up in your telephone, nothing came up on your phone for 679 868 3423. You agree? A. Yes. Q. Nothing now is in your contacts for Rohini Mami Fiji mobile. Correct? A. Yes. Q. Is that the phone that you were handed back by your barrister yesterday? A. Yes. Q. Did you go into your telephone after it had been handed back to you and ascertain how it had been used following it being provided to counsel for the defendant? A. No. Q. Did you delete contacts last night? A. No. Q. You're lying, aren't you? A. No, I didn't. Q. I want to assure you, Mr Sharma, that in front of counsel for the defendant your phone rang a whole series of numbers which were in common between phone X and Mr Sharma's phone yesterday and also some other relevant numbers in the case, including this phone X and your sister's phone. I want you to assume that. It was done in front of your counsel team and they saw the numbers and they saw what came up, including, I want to suggest to you, irrefutably, that 679 868 3423 showed up "Rohini Mami Fiji mobile". A. I can't answer because I wasn't present in the meeting that you had when you were checking the phone. Q. This is a very serious matter, Mr Sharma. You have deliberately, haven't you, gone into your phone and deleted some contacts, haven't you? A. I never deleted any. I mean, my wife used my phone yesterday, my sister used my phone yesterday, I used my phone yesterday. So I can't - I never deleted anything.
The plaintiff was asked to pull up his contacts file and search for Jai Sen. He informed the Court that Jai Sen was not a contact in the file of the phone on Day 5.
I asked Counsel to return to the bar table and raised for consideration by Counsel for the plaintiff the issue of a certificate under s 128 of the Evidence Act. Counsel for the defendant agreed with this course. So that the plaintiff would understand what was happening, I explained to him his entitlement to protect himself in the giving of his evidence from giving answers which might tend to prove him liable to civil penalty or to have committed an offence. I explained that he was entitled to respond that he refused to answer on the basis that his evidence might incriminate him. I explained that in the alternative he could, whilst under cross-examination, obtain his counsel's advice in regard to the issue of a certificate pursuant to which the evidence which he gave could not be used against him in a prosecution. There was a short adjournment whilst the plaintiff out of court obtained advice from his legal representatives in regard to the issue of a s128 certificate.
On the plaintiff's return to the witness box and in his presence, I expressly enquired of his Counsel whether, pursuant to s128(7), the plaintiff was not protected by the issue of the certificate from giving false evidence in the proceedings, had been explained to him. Again the plaintiff and his legal representative left the courtroom for him to obtain the benefit of their advice in regard to the extent of the protection available under the certificate.
The plaintiff again returned to the witness box. On the request of his Counsel that I do so, I issued a certificate under s128 of the Evidence Act (s87 Civil Procedure Act) and I stated to the plaintiff: Q. You may now willingly answer questions and the evidence that you give will not be used against you in a prosecution under Australian law. However, this does not apply to a criminal proceeding in respect of giving false evidence in this Court. Do you understand? A. Yes, sir. Q. In relation to which, of course, you're still permitted to respond, "I refuse to answer on the basis I do not wish to incriminate myself." A. Yes, sir.
The plaintiff immediately gave the following evidence: Q. Can you please get your phone again. I'd like to go through five numbers with you. A. I refuse to go through any numbers on the phone. Q. I'm sorry? A. I refuse to go through any numbers. HIS HONOUR: Say it loud enough for the transcript, please. LEE Q. You what, sorry? A. I refuse go through any numbers on the phone. The plaintiff again left the Court with his counsel and then returned to the witness box.
Counsel then again accessed the Sharma Mobile contacts file. With the agreement of Counsel, I entered the following onto the transcript: HIS HONOUR: So it's agreed then, gentlemen, is it, for the record to show that each of the six numbers on the page handed to me was in the phone in that you were able to find it within contact and against the name when the phone was inspected by counsel for each of the parties between 4 and 5 pm on 22 September 2016? The phone was then returned to the plaintiff. The plaintiff was required to produce his phone again once in the witness box today whereupon it has been discovered that only phone number 5 of the six, that phone number being 0435 618 252, remains in the contacts of the phone. POTTER: That's correct, your Honour. (Potter was plaintiff's counsel) HIS HONOUR: In addition, it is agreed by counsel that on the production of the phone, as was ordered in this Court, on 22 September 2016 to counsel for the parties between 4 and 5 pm on that day the contacts included J for John, A for Allen, I for Ian, Sen, S-E-N, and a telephone number which contact and telephone number, as for the other numbers and contacts referred to on the sheet, is no longer in the phone at the time it was produced to day in court by the plaintiff, he having had possession of the phone in the interim. The list of contacts became Exhibit 2. It contained the following: COMMON CONTACTS BETWEEN PHONE X AND MR SHARMA'S PHONE The following telephone numbers are common contacts between Phone X and Mr Sharma's Phone, and are recorded in the contacts list on Mr Sharma's Phone as at the date of the trial:
+679 925 8439 - recorded as 'Navau' and as 'Ashwini Navau' (Annexure E);
+64 2757 16333 - recorded as 'Archana NZ mobile' (Annexure L);
+679 995 0027 - recorded as 'Anshu Fiji mobile' (Annexure M);
0431 729 560 - recorded as 'Ambika Asthana mobile'; and
0435 618 252 - recorded as 'Shayal Prestons mobile'. …
+679 868 3423 - recorded as 'Rohini Mami Fiji Mobile'.
At this point, the plaintiff agreed that the phone had been handed back to him at 4.40 pm, that he had been cross-examined for hours on Day 4 concerning contact numbers within it, and that he understood three fundamental components of the case to be any links between himself and Jai Sen generally, any link between Scene Phone and Phone X, and thirdly, any link between Phone X and himself. He said that he understood that the defendant case was that he operated Phone X. He was reminded that during Day 4 it had been put to him by the defendant that Phone X and his Sharma Mobile had been used to call the same overseas telephone numbers including ten numbers in Fiji, one number in New Zealand, and one number in India, as well as common Australian mobile telephone numbers. The plaintiff recalled the questioning, but denied any recollection of the actual numbers.
It was agreed that the cross-examination would continue on the basis that the plaintiff made a general objection for the purposes of protection under s87 Civil Procedure Act and s128 Evidence Act on the basis of self-incrimination in relation to the topic of what had happened to the mobile phone since it was returned to him by Counsel at 4.40 pm on Day 4. He gave the following further evidence: Q. And who deleted the call history. A. That's what I'm saying. Anybody can. Q. I know anyone can if they had access to your phone and access to your security code. I'm asking you, do you have any basis at all for suggesting that your sister or your wife went in and deleted your call history before you got in the witness box today? A. When my sister and my wife are using my phone I even don't ask them why they're using it for. Q. You don't ask why they're using it for? A. Yeah. Q. Mr Sharma, there's no reason at all why your wife or your sister would have gone into your call history before today and gone in and deleted your call history, is there? A. I can't answer that. Q. No, you don't want to answer it, do you, because you realise that this is just another in the litany of lies that you're telling in your evidence. A. No, it's not. I'm telling the fact. Q. I take it that your wife or your sister has not been apprised of the topics upon which you have been cross‑examined. HIS HONOUR: No, let's not ask it that way. Let's ask it in simple, straight‑out" - "I take it that they haven't" - why don't you just put it into, "Have they"? LEE: Okay, I'll put a plain Anglo-Saxon sentence. HIS HONOUR: Thank you. That's what I'm asking for. LEE Q. You didn't speak to your wife or your sister about what you've been cross‑examined about, did you? A. No.
The plaintiff then opposed the legal representatives having access to his Sharma Mobile again during the Day 5 luncheon adjournment, saying that he needed to call his wife. His response to the suggestion that he write down the numbers he needed for the 1.00 pm to 2.00 pm period and be permitted to contact those numbers on his legal representative's mobile phones was: A. I'll need my phone.
I directed that Sharma Mobile be placed in the company of the plaintiff's legal representatives to obtain telephone numbers which he would require for contact over lunch, and that the phone be handed back to the Court staff and retained in the custody of the Court.
After the luncheon adjournment, Counsel for the defendant sought access to Sharma Mobile until 5.00 p.m. on Day 5 in order for a copy of its files to be taken for forensic analysis and return to the plaintiff's legal representatives. This is what was ordered and undertaken.
On the afternoon of Day 5, the plaintiff said that he did not know what contacts were on his phone on Day 4. He gave the following evidence: Q. You dispute that notwithstanding it is a fact that has been agreed by counsel in the proceeding. A. Yes, because the whole time the phone wasn't in my custody so I can't say I agree to that. So I dispute it. HIS HONOUR Q. No, with respect, sir, listen to the question and answer the question. And the question was that the contact for Mr Jai Sen was on the phone at the time it was returned to you at 4.40 yesterday afternoon, having been only with your barristers and barristers for the defendant. And that this morning the contact for Mr Jai Sen is not on the phone. Do you agree with that? A. Yes. No. I mean, I don't know. LEE Q. So yes, no, you mean you don't know. A. I - I don't know all the contacts that was on the phone when it was handed yesterday and the contact which was in the phone today. Q. Well, you know, I'm putting to you, that it's been agreed between the legal representatives of the parties who conducted this analysis that there are six contacts which were on your phone which no longer appear to be on your phone. You understand that's been agreed, don't you? HIS HONOUR: Is that agreed? WITNESS: I think so. LEE: Yes, your Honour, that was the agreement. HIS HONOUR: Mr Potter, that's agreed, is it, that the six contacts, being the five in exhibit 3 plus Jai Sen were on the phone yesterday? POTTER: It's agreed between counsel, yes, your Honour. HIS HONOUR: Is it agreed for the proceedings between counsel? Thank you. And it's agreed also that they were not on the phone when it was put into the witness box some time this morning. POTTER: Yes, your Honour. LEE Q. Now, notwithstanding that, notwithstanding that agreement that has been reached, you personally however not prepared to concede that in the witness box. Is that right? A. Concede? POTTER: He doesn't know what "concede" means. LEE Q. Let me ask you another question. A. Yes, sir. Q. Absent some sort of act of God, I want to suggest to you that there are only three possibilities for those contacts no longer being present on your phone when they were present yesterday. The first possibility is they were deleted by you, the second possibility they were deleted by your wife, the third possibility they were deleted by your sister. You agree? A. Yes. Q. Can you explain to his Honour why you think there is any rational basis for concluding that your wife deleted that material? A. I can't say who deleted it. Q. I'm not asking you that. I'm asking you to articulate to His Honour any rational basis that you can identify as to why there is any possibility whatever that your wife engaged in that process of deletion. A. I even don't know what my wife did with the phone yesterday. Q. I'm not asking you that. I'm asking you to identify why it is that you think there is even a scintilla of a basis for speculating that your wife may have been engaged in that activity. A. I mean, I don't know. Q. There's no basis whatever, is there? A. No, the thing is when I got the phone yesterday back from the Court there was no specific orders been made that I shouldn't use the phone in a particular way or anybody in my family shouldn't use the phone in a particular way. I was used to use the phone as a normal person uses it and delete whatever can do because the phone was in my custody and there was no orders been made for me to use in a particular way. So the phone could be used any way. Q. Why did you volunteer that bit of information? A. I mean, I'm just saying. I mean, it could be used any way. Q. So the absence of any orders preserving the material on the phone, was that relevant to you yesterday? A. Sorry, I couldn't understand that. Q. You have decided, unresponsively in my submission, in answer to one of my questions to assert that there were no specific orders made by his Honour concerning the phone. You recall just saying that? A. Yes. I mean, the phone was handed to me to be used normally by anybody or by me or my family. I mean, there was no restrictions to it and how it's used. Q. Because there were no restrictions on it you believed, did you, that you were free to do whatever you wished to do in relation to that telephone? A. Yes. As a normal use, yeah. Q. Normal use, right. I put to you the proposition that there's not any basis whatsoever for thinking that your wife did anything by way of deletions to the phone. I now want to put to you that there is not a scintilla of any basis for you considering that your sister did any deletions in respect to the phone. What do you say to that proposition? A. I don't know what they did with my phone. Q. Sorry? A. I don't know what they did to my phone. Q. I'm not asking you that. I have identified for you, plainly, the activity which the Court is hearing evidence about. That is the deletion of material which, I want to suggest to you, is central to those three fundamental aspects of the case that I put to you before lunch. Do you understand that's what I'm asking you to direct your attention to? A. Yes, yep. Q. And material has been deleted from your mobile phone which is directly relevant to those three fundamental issues, I want to suggest to you. That is, links to Jai Sen generally, the link between the seen phone and phone X and the link between phone X and you. Do you understand what I'm putting to you? A. Yes. Q. I have suggested to you there is no basis for thinking that your sister would have taken steps to delete or destroy material relevant to those issues. Do you agree or disagree? A. Yes. Q. There is a basis? A. There's no. Q. There's no basis. You were the only person, I want to suggest to you, out of your wife, your sister and you that understood those three fundamental aspects of the case. You'd agree with that proposition? A. Yes. Q. Armed with that knowledge, I want to suggest to you that you engaged in a deliberate course of the destruction of material which, at the time it was destroyed, you knew was directly relevant to those three issues in the case. What do you say to that proposition? A. No, I never destroyed any information. Q. I want to‑‑ A. I mean, the thing is‑‑ Q. Please. I want to further suggest to you that that is wicked conduct of a very high order. What do you say to that? A. I don't understand that. Q. Deceitful conduct to the Court. What do you say to that? HIS HONOUR: He has denied that he did it. LEE: I'm putting what I think I'm going to be putting in submissions, as a matter of fairness. HIS HONOUR: I think you need to reframe it as to "in the circumstances of it would be", in fairness to the witness. LEE Q. On the basis that his Honour were to find that you did engage in that activity, I want to make a suggestion to you and that is that such conduct would be disgraceful. You agree with that? A. You're suggesting, yes. Q. You would agree that it's disgraceful if his Honour found the fact that that had been deleted by your deliberately? A. Yes. Q. If his Honour found that that had been done by you, you would agree that you could not be trusted at all. A. I haven't done it.
The plaintiff was then further cross-examined about Navau (Ashwini Navau) Fiji - 439, and was again taken to Annexure E. The contact had been deleted. The plaintiff gave the following evidence which, in my opinion, again typified the obfuscation in relation to the objective telephone records and names and numbers within the contacts file of his mobile phone: Q. Since deleted but on the phone before it was returned to you yesterday afternoon, that number was recorded as a contact which had the name in your phone Navau or Ashwini Navau. Do you see that? A. Yes. Q. Can you tell his Honour who Navau or Ashwini Navau are - is, rather? A. I know the name Ashwini but not Navau. Q. In your phone there was a Navau with this, and it came up as Navau and also as Ashwini Navau. I want you to assume it's the same person. A. Yep. Q. Now, do you know an Ashwini who may have the name Navau? A. No. Q. You don't know that person? A. No. I know Ashwini but I don't know somebody with the name Ashwini Navau. Q. I'm sorry? A. I know Ashwini, but I don't know any Ashwini Navau. Q. Who's Ashwini then? A. I know a few. Q. If you go to page 25 you'll see that on 30 April 2012 you had an SMS message to the person I'm going to describe as Ashwini Navau, and then on 1 May you had a large number of SMS messages - this is all from your phone, Mr Sharma's phone. And then if you go over the page you'll see to the 3 May, and then there is a large number of SMSs from phone x to the same person on page 26, on page 27, on page 28, on page 29 and on page 30, when, from the 8th of July 2012, there's a large number of SMSs from your phone right up to the time when you were arrested. Do you see that? A. Yes. Q. You were in almost constant contact, or a person operating Mr Sharma's phone was in almost constant contact with this person during this period from April until the time that you went into gaol. Do you see that? A. Yes. Q. In between time there was a very large number of SMSs that were sent by the person who was operating phone x. Do you see that? A. Yes. Q. Now, given the frequency with which Ashwini Navau was contacted by Mr Sharma's phone during this period, does that assist you in recollecting who Ashwini Navau may be? A. No. Not with the last name, no. Q. You're lying, aren't you, Mr Sharma? A. No, not with the last - I don't know anybody with Ashwini Navau as their last name. Q. Who do you think the Ashwini is that's put in in your phone under your contacts with that name? A. In Fiji? Q. Yes, it's a Fijian number, Mr Sharma. A. I mean, I studied my high school in Fiji, primary, high, in a community - in a village where people's name is most common names, Indian names. So I can't exactly pin point out which Ashwini is it, but I don't know any Ashwini whose last name is Navau. Q. Is Navau a place in Fiji? A. No. Q. Right. So you would infer that if the name Ashwini Navau was in your phone, it would be either the name of somebody or the name and nickname of somebody. Would that be fair? A. Yes, could be, yeah. Q. Irrespective of whether you know someone with the formal name Ashwini Navau, is there anyone you have ever come across with whom you have had telephone contact who is known to you by that name, irrespective it may not be their correct legal name? A. With Ashwini first name, yes. Last name, I know Ashwini Lata, I know Ashwini Devi, I know Ashwini Kumar-- Q. Out of those three Ashwini's that you have made reference, who is the person that you consider yourself to most likely have been in contact, in regular contact, between April 2012 and the time that you went into preceding August 2012? A. I don't know. I mean, that's been in 2012, so I don't have any recollection of that. Q. You're not making a genuine attempt to recall, are you? A. I am.
Immediately following, the plaintiff gave similarly unhelpful, and in my opinion, obfuscating evidence in relation to the contact Archana - New Zealand 333. That contact is analysed in Annexure L of Defendant Closing Submissions. It is to be remembered that Archana - New Zealand 333 was the only New Zealand contact number in Sharma Mobile's contact file also contacted by the user of Phone X. Between 6 May 2012 and 10 August 2012. Archana - New Zealand 333 was contacted by Sharma Mobile 61 times.
When this common Sharma Mobile and Phone X contact was revisited in cross-examination on Day 5 of the hearing, the plaintiff was being slow in his responses to questions in significant passages of the cross-examination, and I gained the impression that he was attempting to make up his evidence as he went along trying to avoid, as one would put it, "connecting the dots" so as to continue the obfuscation.
I observed time on the Court clock and noted in the transcript that on one occasion the plaintiff took 40 seconds to respond. I set out that part of the plaintiff's evidence on Day 5 where, again, I was of the impression that he was deliberately not assisting in relation to identification of a contact: Q. You'll see from item 2 on exhibit 3 before deletion yesterday afternoon recorded in your telephone for that number was the contact "Archana NZ mobile". Do you see that? A. Yes. Q. Given this is a New Zealand number, I take it his Honour's to assume that that is someone called Archana who is located in New Zealand, and that's their mobile number. Correct? A. Yes. Q. Now, who is Archana? A. Sorry, I'm thinking. Q. How many people-- HIS HONOUR: No, let him think. LEE: Sorry, your Honour, yes. WITNESS: No idea. Q. No idea? A. No. Q. Don't know anyone called Archana in New Zealand? A. No. Q. Can I ask you to go to page 44. You'll see there's a series of SMS messages from your phone, again spanning from 6 May 2012, which was the time when records were produced on subpoena, through to the time shortly before that phone was taken away from you 12 August 2012. Do you see that? A. Yep. HIS HONOUR: Tab, which number? LEE: This is tab 12. HIS HONOUR: You're still on 12, sorry. Yes, go on. LEE: Yes, 44 through to 46. Q. You'll see that in the mix of all of those SMS messages, on 25 May 2012 there's a telephone call with a duration of almost seven minutes, 348 seconds, with‑‑ HIS HONOUR: 25 May 12? LEE: 22 May 12. HIS HONOUR: You said five, you meant two. LEE: I'm sorry, your Honour. Q. There's a telephone call at 8.53 pm on that day of almost seven minutes, 348 seconds. Do you see that? A. Yes. Q. You tell his Honour on your oath - on your oath, Mr Sharma - that you do not know anyone in New Zealand by the name of Archana with whom you would have had that contact? A. I can't recall going back into 2012 who I had contact with. Q. You would agree that in response to the previous answer there was a very long pause while you considered your position. HIS HONOUR: 40 seconds. LEE: Q. A 40-second pause. Do you agree with that? A. No. Q. Don't worry about it. You took a long period in order to turn over in your mind about whether or not you knew a person called Archana in New Zealand. Correct? A. Yes, I was thinking, yep. Q. Why did it take you so long in order to recollect whether you knew someone of that name in New Zealand? A. The reason I took so long - I mean, I know a lot of people with a similar and common name, the same names, and when you say a particular name then I have to actually think, okay, whom are you referring to or whom I have talked to, how many Archanas I know and things like that. So, you know, the Indian community - there's seven names are very common names. Sometimes a number saved in the phone and you've got ten Rajas and things like that, you don't know whom, you know, to pick with and it's hard. Q. Do you see the time? A. And we're talking about 2012. I mean, if a call was made two days ago I would say okay, yeah, I know whom I made a call. Q. You see the times when this phone was SMSing Archana? For example‑‑ A. Another thing is‑‑ Q. 12.54 am, 11 pm, 10.51 pm, 10.46 pm, 11.36 pm, et cetera, and then 7.45 am in the morning, 2.23 am in the morning, all sorts of times during the day. A. Yeah. Q. It is inconceivable, isn't it, that those SMSs would have been sent by anyone other than you? A. I can't recall going back to those -
Again, assessing how the plaintiff gave his evidence, I allow for the fact that the telephone communications to which he was being directed concerned contact four years ago, and that therefore there was the very significant reality that he might not recall the contacts to which MFI-5 (Defendant's Closing Submissions Annexures) produced analysis. In my opinion, the normal and obvious allowance for recollection of over time did not satisfy my concern that the plaintiff was deliberately obfuscating. My reasons for that, taking into account my observation of him giving his evidence, are: 1. the manner in which he gave evidence, including the time which he sometimes took to answer; 2. the completeness of his obfuscation in that he would not concede recollection of any person by name or telephone number across all twelve common numbers contacted by Sharma Mobile and Phone X, some of which such as Rohini Mami - Fiji 423 and Navau - Fiji 439, Sharma Mobile texted hundreds of times in the first half of 2012 and contacted in 2016; 3. when seemingly faced with no other avenue for obfuscation on the basis of failure of recollection or inability to recognise a contact by number, location and/or name; the plaintiff deferred to suggesting other users of Sharma Mobile; and 4. in my opinion, it was striking that overnight between Days 4 and 5, names and telephone numbers being the contacts the plaintiff knew he was being cross-examined upon for the purpose of connecting use of his Sharma Mobile with use of Phone X in the period relevant to the fire, had been deleted. The plaintiff understood at that time the connection, on the defendant's case, of Phone X with fire, based on Mr Sen contacting Phone X and using Scene Phone at the time the fire was started.
Before the at the end of Day 4, I reminded the plaintiff that he remained under cross-examination: HIS HONOUR: Yes. Sir, you can step down. You're under cross‑examination. You're not to speak to any lawyer or any person about the evidence in your case, except with leave given by me. Do you understand? WITNESS: Yes, your Honour. HIS HONOUR: And you do have leave to say to your lawyer, "I need to talk to you," and then Mr Potter or his junior can give my associate a call. WITNESS: Okay. Would I get access to my phone?
Thus, the plaintiff having possession of his mobile phone and aware precisely of the contacts within it about which he was cross-examined, came to Court on Day 5 without adequate explanation for their deletion.
If it were to be assumed that the plaintiff's wife and/or sister removed those contacts; then the inference would be that the plaintiff had discussed his cross-examination with his sister and/or wife. They were not in Court.
The data forensically retrieved from the plaintiff's Sharma mobile did not include a date stamp indicating the exact date of deletion of the contacts. Mr Khoury's analysis (report dated 26 September 2016, Annexure D) found that the plaintiff's current Sharma Mobile handset iPhone 5, operated from 2015, had recorded activity with each of the mobile numbers for which the user of Phone X, on the evidence, was shown to have had contact: Rohini Mami - Fiji 423, Unnamed User - New Zealand 666, Anshu - Fiji 027, Navau - Fiji 439, and Archana - New Zealand 333. There had been 16 contacts with Rohini Mami - Fiji 423 on that handset. A text from Sharma Mobile to Rohini Mami - Fiji 423 sent on 11 May 2013 at 8:25 included a Happy Mother's Day greeting. The translation of this text message is given in the affidavit of Madhu Argarwal made 27 September 2016.

[31]

The Plaintiff as a Reluctant Witness

That the plaintiff was in 2012 a prolific mobile phone user, carrying his handset with him as he moved about Sydney in the course of his financial services business and in the course of his interaction with the Sydney Fijian-Indian Community, in broad terms dilutes his claim that use by others explained the common contact activities of Sharma Mobile. That the use of Sharma Mobile whilst he was in India, away from his Sydney workers and family included communication with some of those common contacts, further dilutes his suggestion of use of his Sharma Mobile by those persons. That Sharma Mobile communicated with the common contacts whilst the plaintiff was in Sydney dilutes his suggestion that a Fijian-Australian travel group using his phone whilst in India, made any significant contribution to the pattern of communicating with the common contacts by Sharma Mobile.
The plaintiff's claim of complete lack of recollection of identity of persons contacted by him using his Sharma Mobile being persons known by him when giving those answers to have been also contacted by use of Phone X is so broad and complete that his recollection would have had to be poor indeed for the evidence to be believable. The fact is, however, that it was not the period from the date of the fire to the hearing over which the plaintiff had to recall. The forensic analysis of his iPhone 5 showed that over approximately the two years preceding the hearing his Sharma Mobile had been used to communicate with several of those common contacts. This made it difficult to accept his claim of complete inability to recall those persons contacted.
Whilst deletion of 6 contacts from his Sharma Mobile during his cross-examination overnight between Days 4 and 5 of the hearing was not in breach of a court order, in my view what is significant is the inadequacy of the plaintiff's explanation for that deletion. His suggestion that his sister or wife may have had access to his phone in the context of that deletion having occurred but without committing in his evidence to the fact that they had performed the deletion was typical of what I have characterised as his deliberate obfuscation in his evidence in caution of making any concession which might have assisted the defendant in the proof of its case.
Further, his intimation that his wife or sister might have performed the deletion would suggest that they had awareness of the common contact use of Sharma Mobile and Phone X which raises a concern as to whether he might have discussed his evidence with them.
In my opinion, the plaintiff was a reluctant witness who did not satisfy his duty to answer questions responsibly, to proffer all material within his knowledge for which the questions called.
I am concerned that the plaintiff's deliberate reluctance in testimony equates to an attempt to conceal evidence which might permit me to find the adverse inference that he was the user of Phone X: Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11; (2011) 243 CLR 361 per Heydon, Crennan and Bell JJ at [62] to [64].
It is not necessary for me to find that adverse inference in order to be satisfied that the plaintiff was the user of Phone X. This is because, in my opinion, the plaintiff's evidence was so apparently obfuscating as to be unreliable and probably untruthful. His evidence is not acceptable to rebut the positive inference supported by objective phone account records that he was the single user of Sharma Mobile and Phone X.

[32]

Evidence Connecting the Plaintiff and Mr Sen with the Start of the Fire

Despite that the common evidence was that on 13 June 2012, the morning after the fire, when Det. Snr. Const. Rogers showed the plaintiff photographs on Scene Phone, the plaintiff identified Mr Sen; the plaintiff on Day 4 of the hearing was reluctant to concede that Mr Sen operated Scene Phone. The evidence was: Q. You are aware, are you not, that in these proceedings it's alleged by the defendant that Mr Sen left a phone at the premises the night of the fire? A. No. I don't know about that. Q. That's news to you too, is it, that there's an allegation made that Mr Sen left a phone that he used at the premises the night of the fire? A. I mean, I came to know about the phone found at the premises. It was Jai Sen - the police who relate - think it was Jai Sen's phone - by a police officer. I can't say whose phone it is. Q. Sorry, I asked you a question. I'm asking you whether or not, at the moment, you agree with the proposition that that phone that we're talking about, which I'll describe as the scene phone, was used and operated by Mr Sen. I'm asking you whether or not you understood, from sitting here over the last few days, that it is being alleged that Mr Sen was the operator of a phone which was found at the premises the morning after the fire, by the New South Wales Police. A. Can you just simplify it a little bit for me so I could understand you. Q. Are you aware that the defendant in these proceedings, the insurance company, is alleging in this proceedings certain reasons why it says that your claim is a fraud? A. Yes. Q. One of the reasons that my client, the insurance company, says that your claim is a fraud and that you are a fraudster is that Mr Sen's phone was found at the premises the day after the fire. You understand that's being alleged, don't you? A. Yes. Q. And you are aware, aren't you, that Mr Sen's photograph has been taken a number of times on that scene phone? A. Yes. Q. Given that Mr Sen's photograph appears a number of times on that phone, there is no reason for you to think that it is somebody else's phone other than Mr Sen's, correct? A. Yes. Q. That is, there's no reason. Do you agree with me? A. Yes.
Following his giving that evidence, his counsel formally conceded that Scene Phone was probably Mr Sen's Phone. However, the plaintiff did not concede that Mr Sen was with Scene Phone when the fire was started.
For Mr Sen's Phone, only account records commencing 29 May 2012 were available. For that reason, evidence of contact from Mr Sen's Phone to Sharma Mobile and Phone X was available from 29 May 2012, and combined with the account records for Sharma Mobile and Phone X, the collated account records gave the picture of communication in all directions.
It will be remembered that the plaintiff acknowledged Mr Sen to be a close friend as well as a client of his financial services consultancy and a plumber he retained when required for his properties. At about the time of the fire and continuing into the weeks following, Mr Sen was working his trade for the plaintiff constructing an outside kitchen at the plaintiff's home.
The telecommunications provider account records evidence summarised in Defendant Closing Submissions, Annexure D, showed that Sharma Mobile was used to contact Mr Sen's Phone by text and voice call 53 times between 1 January 2012 and 29 May 2012, a period of 149 days. Any calls from Mr Sen's Phone to Sharma Mobile during that period are not the subject of evidence. The records for the thirteen days between 29 May 2012 and the fire on 12 June 2012 showed that Mr Sen when using Mr Sen's Phone, and the plaintiff when using Sharma Mobile, contacted each other seventeen times. Fifteen of those communications were voice calls, the longest being of 2 minutes duration. The remaining two were texts.
Plainly, the frequency and voice call mode of their communication was not only consistent with them having been close friends, but also individuals closely engaged with each other in the course of their day-to-day lives in the days leading up to the fire. Contact between them using Mr Sen's Phone and the plaintiff's Sharma Mobile was engaged from early morning, throughout business hours, and until late evening; basically, from just after 7.00 a.m. until just before 10.00 p.m.
Annexure Q to Defendant Closing Submissions was MFI-6 in the proceedings and was shown to the plaintiff during cross-examination. It is a schedule of all phone activity by Mr Sen's Phone, Scene Phone, Phone X, and the plaintiff's Sharma Mobile on 12 and 13 June 2012. The important communications were as follows: 1. (1.1) On 12 June 2012 at 08:13, Mr Sen used Scene Phone from the location attributed as Minto, and made a voice call to Sharma Mobile lasting 29 seconds. Plaintiff Closing Submission [87] concedes this call was made by Mr Sen. (1.2) 29 seconds is longer than would be expected for a failed connection, and is a duration consistent with a conversation having occurred. Sharma Mobile was not within the Scene Phone contact file. This was the only Scene Phone contact with Sharma Mobile in the records in evidence. (1.3) The chances of it being a dialling error would be an infinitely small possibility given the close relations between Mr Sen and the plaintiff and Mr Sen's frequent use of Mr Sen's Phone to contact Sharma Mobile. It is most likely that Mr Sen on this occasion against his normal practice, dialled the plaintiff's Sharma Mobile number with which he was familiar using his covert Scene Phone. His doing so may have been accidental. 1. (2.1) 30 seconds later, on 12 June 2012 at 08:14, the plaintiff, using Phone X, voice called Mr Sen on his Scene Phone. The duration of the call is a little more than 2 minutes. The call was placed immediately following the 29 second voice call from Scene Phone to Sharma Mobile ((1.1) above). (2.2) The call is consistent with communication chosen to be between covert mobile phones. (2.3) Because I have found the plaintiff was the user of Phone X; this call is very significant because: 1. it shows the plaintiff using a covert phone to telephone Mr Sen on his covert phone; 2. there is no evidence of the plaintiff by Sharma Mobile or by Phone X contacting Huni, or otherwise any suggestion that the plaintiff would be contacting Mr Sen on his covert Scene Phone in order to protect Mr Sen's marriage; 3. the plaintiff denied knowing on 12 June 2012 of Mr Sen's use of the convert Scene Phone, and of Scene Phone itself, and that the call was made by the plaintiff is opposite that denial; 4. the temporal proximity with the fire of the conversation made between the plaintiff and Mr Sen using covert phones; and 5. that Mr Sen having called the plaintiff on Sharma Mobile using Mr Sen's covert Scene Phone, the plaintiff returning the call either to make a reply or to continue the discussion between covert phones infers a covert purpose of the communication. 1. (3.1) Between 12 June 2012 at 08:17 and 20:16, there are voice calls and texts from Mr Sen using Scene Phone to Huni which attribute the location to Mr Sen with Scene Phone to be at Minto in the morning and at Macquarie Fields at 19:33 (there are no location attributions after that time). Accordingly, Mr Sen was within reasonably proximate location with the Property, and not elsewhere at a place so removed as to be inconsistent with him losing Scene Phone at the Property. 2. On 12 June 2012 at 12:58, Sharma Mobile was used to make a 32 second voicemail deposit to a recipient unidentified in the records. The location attributed to Sharma was Ingleburn (Exhibit 4, page 1674SS). 3. On 12 June 2012 at 16:31, the plaintiff used of Phone X to leave a voicemail deposit for Mr Sen on Scene Phone of 2 seconds duration (Exhibit 4, pages 2066 and 2077). 4. On 12 June 2012 at 18:31, Mr Sen used Scene Phone to retrieve the 2 second voicemail left by the plaintiff using Phone X at 16:31 (Exhibit 4, pages 2073 and 2076). 5. On 12 June 2012 at 19:33, Mr Sen made a 13 minute call to Huni using Scene Phone from attributed location Macquarie Fields. 6. On 12 June 2012 at 20:00, 20:03 and 20:16, Mr Sen used Scene Phone to text Huni. 7. (Plaintiff submissions do not concede that after this time Scene Phone was used by Mr Sen) 8. On 12 June 2012 at 20:40:02, Mr Sen using Mr Sen's Phone called Sharma Mobile for a duration of 88 seconds. The attributed location was Macquarie Fields. A second call of 87 seconds from Mr Sen's Phone to Sharma Mobile also shows in the account records. The accounts record only attributes location to one of the entries. These factors indicate that the service provider duplicated the entry for a single call of about 1.5 minutes. On the balance of probabilities, I accept only one communication occurred. 9. On 12 June 2012 at 23:06, the plaintiff use of Phone X to leave a voicemail deposit for Mr Sen on Scene Phone of 3 seconds duration (Exhibit 4, pages 2066 and 2077). 10. On 12 June 2012 at 23:23:49, the user of Scene Phone called the plaintiff on Phone X for 90 seconds. The attributed location for Scene Phone was Ingleburn. 11. On 12 June 2012 at 23:24, the account records record a Scene Phone activity without giving any description for it. 12. On 12 June 2012 at 23:27, having seen flames, the neighbours called emergency services. 13. There is no further use of Scene Phone. It is discovered by police in the grass at the rear of the Property the next morning. 14. On 12 June 2012 at 23:53, Mr Sen using Mr Sen's Phone, called Huni for a duration of just under 5 minutes. The location attributed to Mr Sen's Phone was Macquarie Fields. Ingleburn and Macquarie Fields are neighbouring suburbs, making the latter within well within the 26 minute travel time radius available from Scene Phone's 23:23 call to Phone X. 15. The records show no activity on Sharma Mobile account (meaning outgoing calls and incoming voicemail) between 12 June 2012 at 23:48 and 13 June 2012 at 05:35. 16. The records show no activity on Phone X (meaning outgoing calls and incoming voicemail) for one week after 12 June 2012 at 23:06 (above) except for a text attributed zero duration on 13 June 2012 at 03:16. 17. On 13 June 2012 at 05:35, Sharma Mobile received a voicemail deposit of 58 seconds which on the evidence was police notification of the fire at the Property. 18. On 13 June 2012 at 05:37, Sharma Mobile made a 51 second voicemail retrieval. Whereas the defendant submitted that this was retrieval of the police notification of the fire, the plaintiff properly challenged that voicemail deposits received by Sharma Mobile on 12 June 2012 at 12:40 and 12:58, of total duration 40 seconds, had not been retrieved, making this retrieval of 51 seconds uncertain as to content. Given the common experience of the phone service automatic oral instructions in the course of voicemail retrieval, it is unsafe to find that any part of the police notification was retrieved on Sharma Mobile at 05:37. 19. On 13 June 2012 at 06:24, the plaintiff sued Sharma Mobile to make a 67 second voicemail retrieval. This is the most likely time of the plaintiff's retrieval of the police voicemail informing of the fire. It is also consistent with the plaintiff's evidence of him making the following call to the police station. 20. On 13 June 2012 at 06:28, the plaintiff using Sharma Mobile, called the police station.
There is no record of Sharma Mobile ever being used to contact Scene Phone.
Logically and standing alone, the 29 second phone call from Scene Phone to Sharma Mobile at 08:13 on 12 June 2012 (paragraph (a) above), would not prove more than the fact that Mr Sen had the plaintiff's Sharma Mobile number. However, that fact does not stand alone. The immediately following phone call for a little over 2 minutes on 12 June 2012 at 08:14 from the plaintiff using Phone X to Mr Sen on his Scene Phone is either pure coincidence or consistent with the plaintiff returning Mr Sen's call or continuing a conversation with Mr Sen by deliberate means of the covert phones. The plaintiff joining with Mr Sen on the morning of the day of the fire in conversation chosen to be continued between their covert phones would be evidence consistent with their joining in a covert purpose.
Whilst during cross-examination the plaintiff claimed repeatedly an inability to recall phone use, phone numbers and contacts; in relation to the 08:13 call from Scene Phone, he not only denied having received the calls, he expressly stated that he recalled never having received a phone call from that number (0415 327 026). The evidence was as follows: Q. Now, I've also been talking to you about what I've described as the scene phone; that is, the phone found on the premises. A. Yes, sir. Q. Which is 0415 327 026. I've asked you about that scene phone and the fact that it had Mr Sen's photograph on it, correct? A. Yes, sir. Q. I'm asking you whether or not you recall getting a 29-second telephone call on the day of the fire, on your telephone - Mr Sharma's phone - from the scene phone. A. No. Q. Do you deny that? A. Yes, sir. … Q. Do you recall, just before the luncheon adjournment, you denied receiving a telephone call from the scene phone at 8:13:46 on the morning of the fire? Do you recall that? A. Yes. Q. Can I ask you, please, to go down three quarters to the table, and you'll see in the left‑hand side - and this is common to all the entries - there's 0415 327 026. You see that? A. Yes, sir. Q. That is the seen phone. A. Yep. Q. Then you'll see 12.6.12, that is 12 June 2012. You see that? A. Yes, sir. Q. That is the date of the fire. Correct? A. Yes, sir. Q. Then you see an entry for local call start time, 8.13 and 46 seconds. A. Yes, sir. Q. Then you see 0415 595 966. Do you see that? A. Yes, sir. Q. That's your phone. A. Yes, sir. Q. And you'll see chargeable duration, 29 seconds. A. Yes, sir. Q. And there's an INEI ID. You see that? A. Yes, sir. Q. There's a location code and the location description is given as Minto. A. Yes, sir. Q. I want to suggest to you in the light of that record that I've taken you to, that your denial of receiving a telephone call on that day from the [scene] phone, is a lie. A. No, sir. Q. What possible explanation do you have for a business record produced by Vodafone showing a telephone call from the [scene] phone to your phone number at that time on that day? A. The possible explanation that I have in terms of that call, is prior to ... (not transcribable)... in June 2012, I was receiving quite a bit of phone call from private numbers where people wouldn't say anything and things like that, which has been reported to the police station, that people have been harassing me. The possibility is the call was made from a private number, a person who hasn't spoken or said anything when the call was made. My recollection is I never received any phone call from that number. [Transcript "seen" to "scene"]
When pressed, the plaintiff's further answer was inconsistent in that he responded that if he received a harassing phone call from a private number at that time, he might have let it go 29 seconds, and if the caller said nothing, then he would hang up, and in the meantime the plaintiff would listen to background noise in an attempt to find out information that he could give the police about the harassing caller.
His evidence was: Q. Mr Singh, I want you to assume that you answered the phone now, and we'll wait 29 seconds. Do you seriously say it would've taken you that length of time, that pause, for you to hang up upon receive of the telephone call where there was no‑one on the other end of the line, in circumstances where you say you've been receiving repeatedly such calls. A. Yes, in certain, several times where people have been ringing and, and, and when I received they say nothing and when I hang up they kept ringing again. I mean, sometimes if I keep saying, "Hello, hello." And they don't say anything, I just keep the phone on to see what the response or to get a background noise because I wanted to find out what other information I can to the police for whatever call was coming to me. Q. You're just making this up as go along, aren't you? A. No, I'm not, because the report has been made to the police station.
This answer was inconsistent with both his preceding complete denial of receipt of the call, and with his denial that he ever received a call from the number 0415 327 026, being Scene Phone. It is most unlikely that the two close friends, Mr Sen and Mr Sharma, remained silent during the 29 seconds.
The Plaintiff Closing Submission at [69], was that the plaintiff had no recollection of the 08:13 call on 12 June 2012 from Scene Phone, and that … "a telephone call from Mr Sen to the plaintiff one morning is neither remarkable nor memorable. Indeed, the plaintiff has no recollection of the phone call. Once picking up the call and recognising it was Mr Sen calling, there would be no reason for the plaintiff to notice or be aware that another phone was being used to contact him".
I reject that hypothesis as being against the plaintiff's evidence of adamant denial quoted above.
I also reject the plaintiff's hypothesis proposed in its Submissions at [70] that it would have been reasonable for the plaintiff to assume the 08:13 call on 12 June 2012 from Scene Phone was a prank call. This submission is also inconsistent with his affirmative denial of having received the call at all, and his denial of having ever received a call from Scene Phone's number. The submission is inconsistent with the plaintiff submission [69] which precedes it.
In any event, that proposition is entirely against the common evidence that Mr Sen operated Scene Phone, and that Mr Sen was a close friend of the plaintiff. Those common facts make it very unlikely that Mr Sen was using Scene Phone to harass the plaintiff anonymously, and that they remained silent whilst connected for 29 seconds.
Plaintiff's Closing Submission [72], relies on the fact that there is no evidence of phone contact between Mr Sen's Phone and Phone X. In my view, this fact is of little significance because it is not disputed that Mr Sen used Scene Phone when he called Sharma Mobile at 8:13 on 12 June 2012, and there are several instances on 12 June 2012 of Phone X contacting Scene Phone.
Further as to Plaintiff Closing Submission [72], given that it is agreed that Mr Sen used Scene Phone as a second covert phone (Plaintiff Closing Submission [66]); that Mr Sen did not use Mr Sen's Phone to contact Phone X, if anything, is consistent with contact from Mr Sen to Phone X for covert purpose.
I prefer the objective evidence of the phone account records over the unreliable evidence of the plaintiff. On that basis, I find that communications between Mr Sen and the plaintiff using Scene Phone and/or Phone X on 12 June 2013 were covert.
The plaintiff submits that a plausible explanation for the 90 second phone call from Scene Phone to Phone X, less than 4 minutes before neighbours noticed the flames, is that the operator of Scene Phone was then "merely returning the two missed calls" from Phone X. As the above record shows, on 12 June 2012 at 23:06, Phone X called Scene Phone for 3 seconds leaving a voicemail deposit, and at 16:31, Phone X called Scene Phone for 2 seconds leaving a voicemail deposit.
But, the important facts are that Mr Sen used Scene Phone to call the plaintiff on Phone X for 90 seconds from a location attributed to be Ingleburn, being the suburb of the Property at the time of the start of fire with use of the hydrocarbon fuel accelerant. Those two earlier notifications, as if a code as the defendant put it or missed calls as the plaintiff puts it, are evidence of overt contact temporally connected to the event of the fire. For the further reasons which follow, I find that Mr Sen made that call using Scene Phone.
There is no evidence contrary to the fact that Mr Sen was the operator of Scene Phone at 23:27 when the fire was started.
On 2 August 2012, Det. Snr. Const. Rogers informed the plaintiff of the police belief that the fire was an incident of arson. The plaintiff disagreed in response.
When interviewed by Det. Snr. Const. Rogers on 8 August 2012, Mr Sen denied both that he had a second mobile phone (a phone in addition to Mr Sen's Phone) and that he knew anything about the fire, starting of the fire, or was at the Property when the fire was started.
On 15 August 2012, Det. Snr. Const. Rogers showed Mr Sen Scene Phone during an interview in which Mr Sen denied both that Scene Phone was his phone, and that he had any knowledge of how photographs, including of himself, came to be on the phone. The interview, as it appears at paragraph 41 of the affidavit of Det. Snr. Const. Rogers made 21 August 2015, included the following questions and answers: Rogers: "We found this phone at the property on the night of the fire, are these photographs of you?" Sen: "I've never owned that phone, they are photographs of me but they're old ones, I took them in my ute at Ingleburn about three years ago. I have no idea how those photographs ended up in that phone". Rogers: "There were calls made from this phone and your phone to the same number in Fiji. Can I look at your phone?" Sen: "I don't know how my photographs are in that phone. I don't know anything about that phone".
On 10 October 2012, the defendant insurance investigator, Mr O'Mullane, informed Mr Sen that in addition to Scene Phone containing photographs of him and his claimed former girlfriend, it contained photographs of a vehicle Mr Sen had recently sold, and a number "on the phone" to a mobile number in Fiji which was the same number also contacted by his Mr Sen's Phone. When asked "How do you explain that? Your photo and a matching phone number?", initially Mr Sen answered "Oh, I don't know". Then when pressed whether he still maintained that he was not at the Property when the fire was started, Mr Sen repeated that denial, but Mr Sen conceded that Scene Phone was a phone owned by him.
At this interview, Mr Sen said that he had lost Scene Phone about one year beforehand and had no idea how it remained in service and was found at the scene of the fire. He next confirmed that the female photographed on Scene Phone was his girlfriend in Fiji. He said that he did not either report his loss of Scene Phone or disconnect it.
The evidence of use of Scene Phone on 12 June 2012 and the plaintiff's concession that Mr Sen operated Scene phone until 3 hours before the fire shows Mr Sen lied to police and to Mr O'Mullane, investigator for the insurer defendant.
In my opinion, Mr Sen's lies of initially completely denying ownership and subsequently denying possession of Scene Phone for one year were constructed lies. His lies make other evidence inferring his possession of Scene Phone at the time of the start of the fire and therefore his presence at the Property at the start of the fire more readily acceptable. His answers to Det. Snr. Const. Rogers and to Mr O'Mullane were consistent with those that might be given by a person with a consciousness of guilt wanting to avoid an admission of guilt.
The plaintiff and Mr Sen attended the Property on 8 June 2012. The plaintiff's evidence, consistent with Mr Sen's answers to Mr O'Mullane at interview, was that they attended the Property for the purpose of Mr Sen performing plumbing work being the turning off of the water heater. The defendant put to the plaintiff that the 8 June 2012 attendance was for the conduct of preparation for Mr Sen lighting the fire. The plaintiff denied this suggestion. In my view the evidence is of little assistance. The Property was accessible from the street. Mr Sen was acquainted with the Property from the 8 June 2012 attendance, but also from other attendances for the purposes of performing plumbing work.
The Plaintiff's Closing Submission is that there is no direct evidence that Mr Sen was in possession of Scene Phone after 20:16 on 12 June 2012. The immediate problem with this submission is that it is inconsistent with the above evidence of Mr Sen's lies. Mr Sen did not inform Det. Snr. Const. Rogers nor the defendant insurance investigator, Mr O'Mullane, that Scene Phone had been lost by him or was otherwise out of his possession after 20:16 on 12 June 2012. Plainly, he had the opportunity to do so because it occurred to him to tell the lie that he had lost Scene Phone 12 months before that.
Other evidence positively supports the inference that Mr Sen left Scene Phone at the Property at the start of the fire. It is obtained from Annexure Q to Defendant Closing Submissions. After Scene Phone was left at the Property, Mr Sen used his regular Mr Sen's phone to contact Huni. This occurred 20 minutes after the fire at 23.53 on 12 June 2012. He had left Scene Phone at the Property, and therefore could not use it for - as Plaintiff Closing Submission [66] puts it - "as a second covert phone" for the primary "covert purpose" of keeping his communications with Huni from his wife.
In summary, the facts which I find to be established on the evidence in relation to the involvement of Mr Sen and of the plaintiff in the starting of the fire are as follows: 1. Scene Phone was found in the grass at the rear of the Property on the morning following the fire, 13 June 2012; 2. the fire was started with extensive use of accelerant in the short period of perhaps minutes before 23:27 on 12 June 2012 when, on noticing the inferno, neighbours telephoned emergency services; 3. the fire was started with an intention to severely damage the house; 4. the objective evidence in the service provider account records shows that Scene Phone was used by Mr Sen in a radius of short travel from the location of the Property throughout 12 June 2012 until only about three hours before the start of the fire; 5. the evidence of continued use of Scene Phone during 12 June 2012 to contact his girlfriend, Huni, as was his normal convert use of the phone, combined with his use of his Mr Sen's phone, rather than Scene Phone to contact Huni after the time of the start of the fire, and his lies to the police and the insurance investigator that he had lost Scene Phone a year before the fire, support the positive inference that Mr Sen was the user of Scene Phone at the time of the start of the fire; 6. that Scene Phone was found in the grass at the rear of the Property by police after they arrived at about 07:00 on 13 June 2012, and that it was used from the attributed location, Ingleburn, at 23:22.49 on 12 June 2012, being the time of the start of the fire, are facts upon which it is reasonable to infer, and I find as a fact, that Scene Phone was accidentally left at the Property by Mr Sen when the fire was started; 7. that I have found the evidence to support the positive inferences that Mr Sen was the user of Scene Phone and the plaintiff was the user of Phone X leads to my further finding that at 23:23:49, Mr Sen using his covert Scene Phone telephoned the plaintiff on his covert Phone X for 90 seconds. That the communication was by choice of the covert phones rather than by use of Mr Sen's phone to Sharma Mobile infers that the communication was of an illicit character; 8. these facts reasonably infer that Mr Sen deliberately started the fire with the intention of causing damage to the Property; and 9. the illicit content of Mr Sen's 90 second call to the plaintiff at 23:23:49 was to report his deliberate starting of the fire.
In oral closing submissions, the plaintiff fairly submitted that Mr Sen's use of Scene Phone is not shown by the objective evidence of the service provider account records to be to conspire with the plaintiff to commit arson because those records show Mr Sen's majority use of Scene Phone to be communication with his girlfriend, Huni, consistent with a purpose of the carrying on of that relationship away from his wife's knowledge. Further, the plaintiff submits that covert purpose was a rational reason for Mr Sen having lied to Det. Snr. Const. Rogers and to the insurance investigator, Mr O'Mullane, when denying his use of Scene Phone. The submission is therefore that those lies are not only rationally to be associated with avoidance of prosecution for the lighting of the fire.
The law does not require that the defendant by evidence in its circumstantial case prove to the Court's entire satisfaction in these civil proceedings the facts which I find. As I have said, I consider it significant that against the opportunity to say so if in fact he had lost Scene Phone a few hours before the fire when being questioned by police and the insurance investigator in relation to the very serious matter of arson, Mr Sen claimed to have lost Scene Phone a year before.
I accept that the evidence does not prove beyond reasonable the facts that I have found. However, the relevant standard of proof which I have applied is satisfaction on the balance of probabilities in this civil case as stated in Bradshaw v McEwans Pty. Ltd. (1951) 217 ALR 1, and adopted repeatedly by the High Court in Luxton v Vines (1952) 85 CLR 352 at 358, Holloway v McFeeters (1956) 94 CLR 470 at 480-481, and Jones v Dunkel (1959) 101 CLR at 304, and was as recently applied in the context of the insurer's burden of proof in issue here in Mutual Community General Insurance Pty. Ltd. v Khatchmanian (2013) 17 ANZ Ins Cas ¶ 61-974; [2013] VSCA 144 at [15]: "Of course, as far as logical consistency goes, many hypothesis may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypothesis consistence with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture [authority referred to]. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise."
Against the inference that Mr Sen started the fire and called the plaintiff to report it, there is on the evidence no other reasonable hypotheses for Mr Sen having been at the Property when the fire started. At 23:27, there was no other reason for him to be there. Being there at the start of the fire, it is implausible to think that he telephoned the plaintiff about some other business than the fire.
In addition, I find that the plaintiff's denial of his use of Phone X and denial of the call is, on the facts which I have found, consistent with denial made with a consciousness of guilt related to his knowledge of the activity of Mr Sen starting the fire.

[33]

The Plaintiff's Motive and Intention

That the plaintiff had spoken to the sub-tenant, Mr Oudin, several months before the fire of the fact that the Property was insured and that if it burned down then he would get the insurance money, in my opinion, is equivocal as to the question of whether or not at that time he was contemplating arson. Nevertheless, it is direct evidence that for months before the fire, the plaintiff had in mind that the Property was "heavily insured" for fire loss. It is evidence that he did not consider the loss would be under-insured.
In Closing Submissions, the parties contested whether the insurance cover would, in the circumstances of the Property being untenanted and requiring repair, have provided sufficient incentive of financial boon for the plaintiff to prefer the Property be destroyed by fire, rather than to complete the repairs and perhaps suffer some short-term loss of rental income before re-tenanting the Property. As seen from the relevant terms of the Policy set out in this Judgment, in the event of destruction by fire, the plaintiff would be compensated under the insurance for rental loss during the period of reconstruction up to a maximum of one year.
The plaintiff's motivation is obviously central to the defendant case that the plaintiff connived with Mr Sen, the plaintiff intending that Mr Sen deliberately start the fire to cause damage. The plaintiff's motivation is less obviously central to the defendant case that the plaintiff consented to Mr Sen being upon the Property, and it being Mr Sen's intention to deliberately start the fire to cause damage.
Because the parties agreed that the hearing proceed on the basis of the questions of liability only, that meant that the hearing proceeded without evidence of the likely building restoration cost of the house. It was agreed that the damage required its demolition.
Neither party submitted that recovery for the loss under the Policy would not provide a substantial windfall. Again without evidence as to the quantum of that windfall, it is of some relevance that the Building Sum insured under the Policy was $466,000, and contents $60,000, in addition to which the terms of the Policy set out in the early part of this Judgment promised compensation for rent loss to a maximum of one year.
The defendant pointed to the "perfect storm" moment that the fire occurred just when the rent default insurance was about to expire and the house required money to be spent on repairs before it could be re-tenanted. The plaintiff countered that the repairs were not structural, mainly cosmetic and could be completed in about a week, plus he had never had difficulty renting the house.
The only evidence of the plaintiff's financial position at the time of the fire came from himself, including that his financial records showed that he had no debt outstanding in respect of the Property, and the mortgage over his home was $290,000, in regard to which he had paid in advance and could re-draw up to $190,000. There was no evidence contrary to the plaintiff being of a healthy financial position.
What it takes to motivate an individual to commit a grave civil wrong comes down to the moral fibre of that individual.
As with all aspects of the case, motivation is to be determined upon inference in the context of the plaintiff being aware of the extent of cover for fire loss under the Policy.
My finding that the prospect of the insurance payout was sufficient motivation for the plaintiff is assisted by my assessment of his poor character in the way in which he gave his evidence.
I have identified in the plaintiff's oral evidence his denial of knowledge of and of use of Phone X, denial of communication by Phone X with Mr Sen using Scene Phone, and particularly his denial of the call by Mr Sen at the Property at the start of the fire using Scene Phone to the plaintiff on his Phone X as permitting findings of great wrong and drawing of gravely adverse inferences.
I have set out the evidence at great length in an effort to show the basis for my accepting that the manner in which the plaintiff gave his evidence, his failure to satisfactorily explain destruction of evidence by deletion of contacts from his iPhone during the course of the hearing, his obfuscation by falsely attributing use of his phone either completely or by exaggerated reference to access of his sister, wife, workers and overseas travelling companions, and his unacceptable, virtually complete refusal to admit facts, including his recollection of contacts which forensic analysis of his iPhone 5 found to have been recently contacted by him; cumulatively place his evidence in that rarely seen category of the "reluctant" witness, and a witness whose evidence is consistent with his consciousness of guilt: Qantas Airways Limited v SS Pharmaceutical Co. Ltd. (Unreported, New South Wales Court of Appeal, 20 July 1990; reported sub nom in SS Pharmaceutical Co. Ltd. v Qantas Airways Limited (1991) 1 Lloyds Rep 288 at 292-293 and Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11.
Whilst the plaintiff's lies do not prove the opposite of the lies, his giving evidence as he did indicates his consciousness that the truth would not have assisted his case denying the inferences which I have found on the evidence: Tobin v Ezekiel (2012) 83NSWLR 757; [2012] NSWCA 285 per Meagher JA at [60] - [62].
That there was a substantial windfall payment in play, in the absence of there being any other rational basis for Mr Sen to have started the fire, applying the above referred to principles for finding adverse inferences, permits the objective evidence to persuade me of the plaintiff's motivation and his connivance with Mr Sen in Mr Sen starting the fire. In other words, that the plaintiff knowingly consented to Mr Sen starting the fire.

[34]

Plaintiff Submission of Adverse inference Against Defendant

As we have seen, the high point of the defendant case to prove the plaintiff's connivance with Mr Sen in regard to the lighting of the fire and, independently of that, the plaintiff's consent to Mr Sen being at the Property is the 90 second phone call from Mr Sen using Scene Phone to the plaintiff on his Phone X at 23:23:49, being the time of the activity of starting the fire. The plaintiff's denial of participation in all of the facts associated with that phone call was as follows: Day 4, page 238, line 20, down to page 239, line 36] Q. So at 11.23 - that is, four minutes before the neighbours call the authorities in respect of the fire - there's a telephone call between two false phones, the scene phone, I want to suggest to you, controlled by Mr Sen, and the phone controlled by you, being phone X. Do you see that? A. Yes, sir. Q. Then there's apparently another call a minute later that I don't need to trouble you about. Then there's the fire called in. So I want to suggest to you the fire had been, obviously enough, likely to have been going for at least some time prior to the neighbours calling the authorities. That stands to reason, do you agree? Then there's - HIS HONOUR: Was there an answer to that? WITNESS: Yes, yes, sir. LEE Q. Then, at 11:48:01, there's a succession of telephone calls after that time. One thing you will note from that last call at 11:24:31, immediately prior to the fire, there is not another call or text message from the scene phone. A. There's none? Q. None, entirely consistent, I want to suggest to you, with Mr Sen leaving the scene phone at the scene, where it was found the next morning by the New South Wales Police. Do you understand? A. Yes, sir. Q. But what Mr Sen then does, I want to suggest to you, is at 11:53:19, when he gets home, he calls Huni. Do you see that? A. Yes, sir. Q. Then, at 3.16am the next morning, phone X is calling a number. Do you see that? A. Yes, sir. Q. And you'll see various other communications which occur on the 13th. What I want to suggest to you is that the only rational explanation of that series of communications was that Mr Sen was controlling the scene phone, that the scene phone was at the location of the fire with Mr Sen, that he was in regular communication with you through the night. You were controlling phone X, which was falsely in the name of an ex-tenant of yours. Do you understand what I'm putting to you? A. Yes, yep. Q. You deny that totally? A. Yes, sir. Q. But you can think of no explanation at all which explains those phone records. A. Yes, sir, because I haven't been controlling other phones, so I can't explain everything that you've just talked about. Q. But for the fact that Mr Sen inadvertently dropped his phone at the scene, you would have got away with it, I want to suggest to you, because there would have been nothing linking phone X to the scene phone. Have you got any reaction to that proposition being put to you? A. No, because, as I said - I mean, I don't know anything the scene phone. The only time I came to know is when the photograph was saying that it's linking Jai Sen, and that's it. Q. You say you don't know anything about phone X, you don't know anything about the scene phone, correct? A. I mean, I can't give an explanation for phone X or the scene phone, so - yep.
The plaintiff submits that I should accept the adverse Jones v Dunkel inference against the defendant because the defendant failed to call Mr Sen in its case and it bore the onus of proof.
The defendant relied on the affidavit of its solicitor, Mr Pan, which evidence described attempts to contact Mr Sen by use of Mr Sen's mobile phone number, but when the person answering learned it was the insurer's solicitor calling, that person gave their name as "Andrew", and said that Mr Sen was beyond reach but that a message would be passed on. The defendant says that he tried to obtain his evidence but that Mr Sen was an unwilling witness in its case.
The defendant's submission is that it was for the plaintiff to call Mr Sen in order to rebut the inference otherwise available on the evidence.
There is no evidence, nor does either party submit, that Mr Sen was an unavailable witness as defined in Clause 4, Part 2 of the Dictionary to the Evidence Act.
In my view, in the circumstances of evidence inferring that he started the fire in the nature of an activity of the offence of arson, Mr Sen is not a witness assumed to be willingly available for either party.
Those facts place Mr Sen's knowledge within the "camp" of the plaintiff in the sense described by Campbell J in Manly Council v Byrne [2004] NSWCA 123 at [53], and by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202. In my opinion, the defendant was not obliged to call Mr Sen, and accordingly the defendant is entitled to submit as it does for the adverse inferences which I have found.

[36]

That Mr Sen deliberately started the fire with the intention of causing harm to the Property

I have found that the plaintiff's close friend, Mr Sen, deliberately started the fire with the intention of causing damage to the Property at a time when there was no other reason for him to be at the Property but for that purpose.
I have found that the plaintiff received Mr Sen's convert telephone communicated report of his having started the fire, conveyed at the time of him committing that arson. There is no evidence contrary to the inference which necessarily arises from those facts, that Mr Sen was at the Property with the plaintiff's consent to commit that act of arson.
Accordingly, I find that the defendant has satisfied its burden of proof upon the basis of cogent evidence that the event of the fire falls within the General Exclusion on page 37 of the Policy in that the loss arises from the plaintiff's intentional act, or by Mr Sen, acting with the plaintiff's consent.
If I am wrong in that and the plaintiff did not consent to Mr Sen starting the fire with the intention to cause damage to the Property; then, I find that the defendant has satisfied its burden of proof on cogent evidence that Mr Sen was upon the Property with the plaintiff's consent when he started the fire with the intention of causing damage within the terms of the application of the Fire Exclusion clause on page 24 of the Policy.
On the whole of the evidence, the plaintiff consented to Mr Sen being on the Property, just as he had permitted Mr Sen to remain on the Property on 8 June 2012 after the plaintiff left him there for the purpose of performing plumbing work.
As I explained when dealing with the specific Fire Exclusion clause; the work which it is intended to do is to place at the responsibility of the owner and outside of the cover for damage either accidental or deliberate caused by tenants, that damage intentionally caused by other persons whose entry to the Property was with the consent of the plaintiff.
In my opinion, the evidence supports the finding of the fact of the plaintiff's consent to Mr Sen being upon the Property, and that whilst upon the Property, Mr Sen intentionally started the fire.

[37]

Section 56 ICA - the Defendant's Second Case

Section 56 permits the insurer to avoid paying a claim made fraudulently It provides relevantly as follows: "(1) Where a claim under a contract of insurance, …, is made fraudulently, the insurer may not avoid the contract but may refuse to pay the claim. (2) In any proceedings in relation to such a claim, the Court may, if only a minimal or insignificant part of the claim is made fraudulently and non-payment of the remainder of the claim would be harsh and unfair, order the insurer to pay, in relation to the claim, such amount (if any) as is just and equitable in the circumstances. (3) In the exercise of the power conferred in sub-section (2), the Court shall have regard to the need to deter fraudulent conduct in relation to insurance, but may have regard to any other relevant matter".
The defendant relies on statements falsely made by the plaintiff in connection with the claim. Those statements were: 1. that someone acting with the plaintiff's consent was not responsible for the fire; 2. that the plaintiff did not know who started the fire; 3. that the plaintiff did not know about the phone call made to his Sharma Mobile from Scene Phone on the morning of 12 June 2012; 4. that the plaintiff did not know anything about the Scene Phone, and that he did not know who owed it; 5. that the plaintiff did not tell a former tenant that "he should burn the house down for the insurance money"; and 6. that, at the time of the fire, the plaintiff used only his Sharma Mobile.
In these reasons, I have already found each of the above statements to have been false. On the facts which I have found, the plaintiff must have known them to be false. There is no issue that he made those statements to Mr O'Mullane, the defendant insurer's investigator. The plaintiff does not submit that in the event that I find the statements to have been falsely made, as I have, that they were not intended to induce the defendant to make payment to him in response to the claim. Indeed, there is no other rational reason why the plaintiff would have made those false statements.
Plainly, each of those statements had the potential to seriously affect the investigation of the loss.
In my opinion, each of the statements was a part of the claim. They were individually and cumulatively significant components of the plaintiff's structure of fraudulently making his claim. Accordingly, this is not a case in which there was part of a claim which it would be harsh and unfair not to order the insurer to pay pursuant to the just and equitable consideration in s 56 (2). This is a case encompassing consideration of the need to deter fraudulent conduct in relation to insurance provided for in s 56 (3).
In Walton v Colonial Mutual Life Assurance Society Ltd. [2004] NSWSC 616; (2004) 13 ANZ Ins. Cas. 61-620 (at 144), Einstein J explained: "The operation of s 56 of the Act has been considered in a number of cases. Relevant principles include the following: The test for fraud is satisfied if the insured has a dishonest intent to induce a false belief in the insurer for the purpose of obtaining payment or some other benefit under the policy. As such, where the insured makes a false statement with knowledge in a claim to induce the insurer to meet the claim, the claim is made fraudulently. The fraudulent statement need not be material to the insured's claim, nor is the insured absolved of any responsibility by asserting that he considered his claim to be valid. (See Tiep Thi To v Australian Associated Motor Insurers Ltd. (2001) 3 VR 279; Naomi Marble & Granite Pty. Ltd. v FAI General Insurance Co. Ltd. (No. 1) [1999] 1 Qd R 501, and Mourad v NRMA Insurance Limited (2003) 12 ANZ Ins. Cas. 61-560). It is not necessary to show prejudice as having been suffered by the insurer for s 56 to be relied upon. The only restriction upon an insurer's right to refuse payment of the claim is the discretion granted within s 56 (2) of the Insurance Contracts Act (see Tiep Thi To v Australian Associated Motor Insurers Ltd. (2001) 3 VR 279)."
Consistent with the principle so described, the plaintiff made each of the above statements with dishonest intent to induced a false belief in the insurer for the purpose of obtaining payment under the Policy, and therefore fraudulently within the meaning of s 56 (1) ICA: see also Sgro v Australian Associated Motor Insurers Ltd. [2015] NSWCA 262; (2015) 299 FLR 92; (2015) 72 MVR 320 per Beazley P at [47].
I find that the defendant must succeed on its second case, and is entitled to refuse payment of the claim under the Policy.

[39]

Damages

As the parties agreed that damages were to be assessed by a referee on the Court's referral, dependant on my determination of the question of liability; given my determination; no order for referral is required and there will be no award of damages.
If I am wrong in my findings of liability, or in the event that I had determined liability in favour of the plaintiff, I would not have been able to assess damages because the parties elected to proceed on evidence of the question of liability only.
Nevertheless, in the course of the evidence concerning the fire, the parties sensibly agreed a list of contents which were in the house at the time of the fire and that the total value of those contents lost was $21,157. Had the plaintiff succeeded on liability, he would have been entitled to damages in this sum for the contents loss component.
The plaintiff points to the provisions of the Policy, quoted in these reasons, promising Buildings Insurance and Contents Insurance in the event of fire to "pay the cost to repair or rebuild the part of your rental property that was damaged - we pay the lower of the cost to repair or rebuild your rental property": Policy, page 43. I repeat, the parties agreed that the house required demolition and therefore, assumedly, repair was not an option. The plaintiff has sold the Property.
By amendment of its pleading of Defence, made in the course of the proceedings, the defendant pleaded that damages should be properly assessed on a diminution of value of the Property basis. In accordance with what I have already said, there was no evidence before me as to whether the loss was less if assessed as the cost of reconstruction or of sale of the land free of a house.
That a policy of insurance is a contract promising indemnity is a principle supporting the proposition that notwithstanding the express contractual promise to pay the lower of the cost to repair or to rebuild in the Policy, the defendant can elect to ignore this provision and choose a different method of calculation of damages: Raso v NRMA (Unreported, 14 December 1992, New South Wales Court of Appeal). The plaintiff concedes this principle.
In Kenwright v IAL [2013] NSWDC 255, Taylor DCJ reviewed a number of authorities considering the application of this principle of insurance law, and at [47], said: "The learned authors accept the words of Macrossan J in Spina v Mutual Acceptance (Insurance) Ltd. (1984) 3 ANZ Ins. Cas. 60-554 at 78 and 345, the words of Forbes J in Reynolds v Phoenix Assurance Co. Ltd. [1978] 2 Lloyds Rep. 440, and the decision in Roumeh Food Stores (NSW) Pty. Ltd. v New India Insurance Co. Ltd. [1972] 1 NSWLR 227 at 237, and conclude that generally the insured loss is measured by the cost of repair or replacement".
His Honour also referred to the text Kelly & Ball, "Principles of Insurance Law", to identify three exceptions to the general rule, they being: 1. where the insured property has no particular value to the insured; 2. where the insured does not intend to reinstate the insured property; and 3. where the insured's desire to replace or reinstate the Property is unreasonable.
In my view, the evidence at the hearing does not permit me to adequately investigate these exceptions.
Had I found in favour of the plaintiff the preferred course would be for the question of basis of assessment to be determined either on a short hearing in this Court on further evidence prior to the order referring out, or at the reference.
In saying this, in my opinion, construction of the above quoted terms of the Policy does not involve a complex or difficult question of law. The task will evolve to a consideration of the facts. For instance, the Property had been the home of the plaintiff prior to him purchasing a home elsewhere and renting the Property. On those facts, it is not necessarily the case that purely because it was a rental property and that he sold it whilst the house was derelict, it was of no other particular value to the plaintiff other than as an investment.

[40]

A Final Procedural Issue

The plaintiff submitted that the defendant had not satisfied its obligation according to the "rule" in Browne v Dunn (1893) 6 R 67 in the conduct of its s56 ICA case. The submission was that the defendant had failed in its obligation to put to the plaintiff each false statement, that it was made with knowledge of falsity and that it was made expressly with the intention of inducing the insurer to meet the claim.
The plaintiff challenged that in light of its failure to meet its obligation in cross-examination, it was not open to the defendant to make the submission that the claim was falsely made. It was put by counsel for the plaintiff: [Transcript Day 8, page 458, line 9] "… in the words of the Lord Chancellor in Browne v Dunn, if you're going to impeach a witness, you have to put those matters to him fairly because it's an allegation of fraud."
In this case, each of the false statements was as to a matter of fact, which fact I have found to be proved, and according to my finding, the statement was known by the plaintiff to be false when made to the insurer.
The "rule" in Browne v Dunn (1893) 6 R 67 is one of procedural fairness. As was famously said by Hunt J in Allied Pastoral Holdings Pty. Ltd. v Commissioner of Taxation [1983] 1 NSWLR 1 at 16; (1983) 44 ALR 607 at 623: "It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn".
Cross-examination in this case provided the plaintiff with the opportunity to deal with the evidence upon which the defendant relied to prove, on the basis of inference, the falsity of his claim and of each of the statements. That he made the statement concerning insurance cover in the event of fire to Mr Oudin was put to him. The whole of the evidence of mobile phone use was put to him. The inferences which the defendant sought to draw from the evidence was put to him. That his denials were deliberately false was put to him.
In this case, where Mr Sharma was not just a witness but the plaintiff, it is particularly relevant to the procedural fairness required at the heart of the rule in Browne v Dunn (1893) 6 R 67 that the defendant opened its case explaining how it proposed to prove that the plaintiff connived with Mr Sen in the start of the fire, or otherwise consented to the entry of Mr Sen who deliberately started the fire, and that its case was based upon the connection between Mr Sen's illicit Scene Phone and the plaintiff's illicit Phone X (Transcript Day 1, page 60, line 40 to page 62, line 29).
Particulars of the defendant's s 56 case are set out in paragraph [23] of the Amended Defence to Further Amended Statement of Claim.
In my opinion, the plaintiff's submission is misconceived in that it is voiced as if the rule in Browne v Dunn (1893) 6 R 67 is, at its essence, a rule of evidence rather than a rule of procedural fairness. In a case such as the present whereby pleading and by opening the contest brought by the defendant included that it would endeavour to prove the falsity of the factual substance of each of the statements which became identified in the defendant's s 56 (1) ICA case, the concern for procedural fairness to which the rule is properly directed was not in play: Browne v Dunn (1893) 6 R 67 at 70-71. At 71, Lord Herschell LC, in his famous judgment, included the passage: "Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter in which he has not had an opportunity of giving an explanation by reason of there having been no suggestion whatsoever in the course of the case that his history is not accepted."
The cross-examination fairly put: 1. the plaintiff was aware that the defendant case was to prove his claim was fraudulently made: (Transcript Day 4, page 224, lines 20 to 32); 2. that the plaintiff had falsely registered Phone X: (Transcript Day 4, page 217, lines 7 to 11); 3. that it was a lie that he did not know about the phone call to his mobile phone from Scene Phone on the morning of 12 June 2012: (Transcript Day 4, page 229, lines 35 to 49); and 4. that there was no rational explanation for communications between himself and Mr Sen whilst Mr Sen controlled Scene Phone and the plaintiff controlled Phone X which was falsely registered other than Mr Sen having dropped Scene Phone at the start of the fire: (Transcript Day 4, page 239, lines 8 to 36).
The plaintiff was challenged on the fact of his statement to Mr Oudin concerning insurance cover in the event of fire.
At the conclusion of the cross-examination, counsel for the defendant, in my view, after the many challenges put to the plaintiff of the falsity of his evidence in relation to each of the subjects of the statements falsely made to the insurer, provided a "blanket" opportunity for the plaintiff to respond to the case brought against him pursuant to s 56 (1) ICA as follows: [Transcript Day 5, page 327, line 26, down to page 328, line 6] "Q. Finally, Mr Sharma, I want to suggest to you that, through the course of your evidence, you have been persistently non‑responsive and that you have suit throughout your evidence to paint a false picture to his Honour of the truth whenever you thought it was in your interest to do so. And you did that repeatedly. What do you say to that proposition? A. That's wrong. Q. Finally, I want to suggest to you that the fire was started by Jai Sen, being a person who entered the property destroyed by the fire with your consent with the intention of causing the damage. What do you say to that? A. No, that's not correct. Q. His Honour can take it though that Jai Sen never went to the property insofar as you are aware without your consent. As far as you're aware? A. Yes. Q. Then I want to suggest to you that you have not been truthful and frank in the matters that you have conveyed to the insurer, including the following statements which I'll now identify and you can respond whether or not you agree with that proposition. You were not truthful and frank in saying that Mr Sen was not responsible for the fire. You were not truthful and frank in saying that you did not know who set the building alight. You were not truthful and frank in saying you did not know about the phone call made to the mobile number from the phone found at the backyard of the property, being the scene phone. And you were not truthful and frank in denying that you told a former tenant you should burn down the house for the insurance money. And finally, that you were not truthful and frank in saying that you only used one mobile phone number to the insurance investigator, being number 0415 595 966. Do you want to say anything to that? A. Don't agree."
In my opinion not only is the plaintiff's Browne v Dunn complaint misconceived, but the cross-examination did directly put the elements of the defendant's s 56 ICA case.

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