A very high burden of proof must be discharged to prove arson on circumstantial evidence. The thrust of the evidence must be sufficient that a jury does not entertain reasonable doubt as to the guilt of the accused.
The Court of Criminal Appeal Supreme Court of New South Wales recently decided an appeal against two convictions for the offence of arson which were largely based on circumstantial evidence.
The grounds of appeal were that the verdicts were unreasonable or unable to be supported by the evidence.
The case is Papanikolaou v R; Tomaras v R [2021] NSWCCA 135 (30 June 2021) (Hamill J, Hoeben CJ at CL and Hidden AJA agreeing).
The fire, the charge and the verdict
Con Tomaras and Angelos Papanikolaou were in an old warehouse at 10-12 Sarah Street, Mascot on the morning of 29 December 2015.
They said: they were collecting a pallet that was being cleared through customs; that Mr Papanikolaou was cooking toast with cheese in a toaster in the kitchen area; that Mr Tomaras suggested they leave to find food elsewhere, which they did; that there was no-one else on the premises; and that they locked up the premises when they left at around 10:30 am to 11:00 am.
A fire broke out not long after. The fire crews attended shortly after 11:30 am but were unable to prevent the warehouse from being destroyed by fire.
Mr Papanikolaou and MrTomaras returned to the premises when they heard about the fire. They gave statements to the police and later to insurance investigators. Later, the police intercepted many conversations between themselves, the building owner and other associates.
They were charged pursuant to s 197(1)(b) of the Crimes Act 1900 (NSW) alleging that they:
“On 29 December 2015, at Mascot in the State of New South Wales, dishonestly damaged by means of fire namely, the building and contents of 10-12 Sarah Street, Mascot NSW 2020, with the view of making financial gain for himself and others.”
They pleaded not guilty. Their trial commenced in June 2019. On 22 August 2019 the jury returned with a verdict of guilty to the charge in respect of both accused.
Mr Papanikolaou was given a custodial sentence of three years with a non-parole period of one year and nine months. M Tomaras was given a custodial sentence of three years and six months with a non-parole period of two years.
They appealed.
The consideration
According to the Judgment Summary:
“The prosecution case at trial was that the applicants (Mr Papanikolaou and Mr Tomaras) deliberately lit a warehouse in Mascot on fire as part of an agreement with the building owner to lodge a fraudulent insurance claim for the incident. The prosecution submitted that the men expected to be paid $30,000 for their involvement. The case was a circumstantial one.”
The defence case was that the expert evidence led by the prosecution at the trial could not exclude the possibility of an accidental fire.
The prosecution had called four witnesses to provide expert opinion concerning various aspects of the fire and its cause. The Court of Criminal Appeal said this about the evidence:
“The experts provided a generally consistent body of opinion evidence but there were conflicting opinions on several topics. These included the origin of the fire, the source of ignition and whether the fire may have been caused by an electrical fault of some kind or another.”
The Court of Criminal Appeal’s conclusions upon the expert evidence were as follows:
“The expert witnesses, considered as a whole, favoured the hypothesis that the fire was deliberately lit. The jury may have formed the view, as I have, that the evidence suggested that it was much more likely than not that the fire was deliberately lit and not the result of an accident or electrical fault. However, the question was not whether one or other inference was preferable, or whether the inferences were “equally open” … The question was whether the jury could rationally reject the inference that the fire was caused by an accident or by an electrical fault or arcing. On the expert evidence alone, it could not rationally have done so.
However, the prosecution case was not solely reliant on the expert evidence to establish that the fire was deliberately lit. On the contrary, it relied on a substantial body of evidence that implicated each of the applicants in the deliberate setting of the fire. It is only once that body of evidence, and all of the evidence admissible against the individual applicants, is considered as a whole, that the ultimate question … can be addressed.”
The Court of Criminal Appeal considered four kinds of circumstantial evidence:
- Opportunity, the toaster, movements around the time of the fire, interviews with investigators and a lieThe opportunity was they were present at the premises shortly before the fire. Mr Papanikolaou was cooking toast in the kitchen area. Mr Tomaras was with him.
After the fire they co-operated with and spoke to a number of insurance investigators and police officers. Mr Papanikolaou said he may have left the toaster switched on.
The lie was that Mr Tomaras met Mr Papanikolaou at Panania on the morning of the fire when in fact they met at the premises. The Court was satisfied that this was “a lie told out of a consciousness of guilt”.
- Association with Mr Hu, the insurance claim and a $30,000 invoice for project management
Mr Tomaras worked with Lee Min “John” Hu, the owner of the premises, assisting him in his property business. He had the keys to the premises. Mr Papanikolaou provided labouring services to the business conducted out of the premises.
The building was insured by Mr Hu’s companies for $1.8 million, plus $600,000 for lost rent and $1 million (in total) for stock and contents.
Mr Papanikolaou invoiced Mr Hu’s company for $30,000 for “project management” after the fire, without an explanation of services rendered.
- Calling in the debt and some relevant telephone intercepts
The telephone intercepts were incriminating. The Court said that references to “shonky things”, “Mr Tomaras’ coy reference to a “certain job”” and “Mr Hu’s unconvincing assertions of ignorance [regarding the invoice] all pointed in one direction, namely, that the men were involved together in the alleged criminal enterprise.”
There were conversations about how they “should deal with the police and insurance agents” which were “curious and unusual if the applicants had no involvement in the fire”.
- An alleged admission to George Karris
A telephone call was intercepted in which George Karris (at whose house Mr Papanikolaou had stayed) had called Mr Hu to follow up payment of the invoice. The conversation went:Hu: Did Mr Papanikolaou tell you anything else about the fire at the warehouse?
Karris: He told me about the procedures and how the fire was done.
Hu: What did he tell you?
Karris: That he’d put in a toaster a bread, cheese and diesel and he walked out of the factory.The Court took this as evidence of an admission by Mr Papanikolaou.
Finally, the Court of Criminal Appeal took into account various matters such as:
- the Prosecution’s failure to call Mr Hu (because he was an ‘unreliable’ witness)
- the jury knew Mr Hu had been charged with arson, but was subject to a “no bill”
- Mr Tomaras’s suggestion that he was owed $180,000 by Mr Hu
- the prior good character, or lack of criminal history, of each of the applicants
- co-operation with the police investigation
- the fact that the fire occurred “in broad daylight”, when most proven arson cases occur at night
- the failure of the forensic experts to inspect the electrical system even though the fittings and utilities were old because it was an old building
- the absence of any evidence to support the use of an accelerant
- the fact that an electrical fault, or arcing, or an accidental conflagration emanating from the toaster was a “possible” cause
- the possibility of a forced entry to the premises.
Appeal dismissed
The Court of Criminal Appeal concluded that:
“The verdict was not unreasonable or unable to be supported having regard to the evidence.”
The Court ordered the appeal be dismissed.