Papanikolaou v R; Tomaras v R

1. [1]

   HOEBEN CJ AT CL: I agree with Hamill J and the orders which he proposes.

2. [2]

   HAMILL J: A little after 11.00am on Tuesday 29 December 2015 commercial premises at 10-12 Sarah Street, Mascot were observed to be ablaze. Con Tomaras and Angelos Papanikolaou were inside the building a short time earlier but they had left at the time the fire was noticed by a number of locals. They returned to the scene and spoke with police and then provided witness statements. About a year later each was charged with arson. A jury found them guilty of an offence under s 197(1)(b) of the Crimes Act 1900 (NSW) and they were sentenced to terms of imprisonment. They have appealed against the conviction. More correctly, because the grounds of appeal involve a question of fact alone or, perhaps, a question of mixed law and fact, they seek leave to appeal against the conviction. [1] Because of the amount of evidence to be considered and the importance of the issues to each of the applicants, leave to appeal should be granted. However, on close examination, the appeal against conviction has little merit. It was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that each of the applicants was guilty of the offence charged against them. An examination of the record of the trial leaves no reasonable doubt about the guilt of each of the applicants. There are some differences in the case presented against each man and each appeal must be considered on the evidence presented in the individual cases. My conclusion in each appeal is the same. The appeal against conviction must be dismissed. These are my reasons for those conclusions.

3. [3]

   The applicants contend that the expert evidence at the trial allowed for the possibility that the fire was not deliberately lit. From this contention, the applicants submit that the jury ought to have held a reasonable doubt about their guilt. Whether the fire was deliberately lit was one of the core issues at the trial. It is true that parts of the expert evidence contemplated that the fire may have resulted from an electrical fault or “arcing” and/or as a result of a toaster being left on. However, the preponderance of the expert evidence favoured the hypothesis that the fire was caused by intentional human conduct, that is – somebody deliberately set fire to the building. More importantly, the prosecution did not rely on the expert evidence alone and the jury was not required to consider that body of evidence in a vacuum. The prosecution also adduced a body of circumstantial evidence which, when considered as a whole, gave rise to an irresistible inference that the fire was deliberately lit and that one of the applicants lit it while the other was present. That evidence included:

A very brief overview of the chronology of the litigation: charges, trial, sentence and appeal

1. [4]

   The fire occurred on 29 December 2015. Over the following months there were police and insurance investigations into the cause of the fire. The investigations included interviewing or attempting to interview witnesses, including the applicants and owner of the building, and electronic surveillance by means of intercepting telephone calls between the applicants and others. The telephone intercepts became an integral part of the prosecution case at trial.

2. [5]

   The applicants were arrested and charged on 30 December 2016. They were released on bail the following day.

3. [6]

   Their trial was listed in June 2019. Pre-trial proceedings commenced on 4 June 2019 before her Honour Judge Hock. Mr Papanikolaou was represented by Mr Tzovaras, who also appeared throughout the trial and on the appeal. Mr Tomaras was represented by Mr Brezniak, who appeared at the trial but not the appeal. The matters ventilated at the pre-trial hearing, except for the failure of the prosecution to call Mr Hu, did not form any part of the grounds ultimately pursued on the appeal.

4. [7]

   On 17 June 2019 the applicants were jointly arraigned on an indictment containing one charge pursuant to s 197(1)(b) of the Crimes Act alleging that they:

5. [8]

   Each of the applicants pleaded not guilty. The trial proceeded until 8 August 2019 when Judge Hock commenced her summing up. In addition to the one count on the indictment, the jury was instructed that it could consider an alternative verdict of intentionally destroying property by means of fire, an offence under s 195(1)(b) of the Crimes Act.

6. [9]

   The jury retired to consider its verdicts at 12.40pm on Friday 9 August 2019 but sent a note very soon thereafter asking if it could go home early and re-commence its deliberations the following week. The deliberations continued over the next two weeks. The jury returned with a verdict of guilty (to the charge on the indictment) in respect of both applicants at 12.49pm on Thursday 22 August 2019.

7. [10]

   On 10 July 2019, Judge Hock imposed the following sentences:

   1. (1)

      Mr Papanikolaou – a sentence of three years with a non-parole period of one year and nine months.

   2. (2)

      Mr Tomaras – a sentence of three years and six months with a non-parole period of two years.

8. [11]

   Those sentences were backdated to account for periods of pre-sentence custody. Mr Papanikolaou is entitled to release on parole on 28 February 2022 and Mr Tomaras will become eligible for release on parole on 25 May 2022.

9. [12]

   There is no application by either applicant for leave to appeal against the sentences imposed.

10. [13]

    Notices of appeal and applications for leave to appeal against the convictions were filed on 27 August 2020. The grounds of appeal raised in the notices were in identical terms and, in each case, signed by Mr Tzovaras:

11. [14]

    At the hearing of the appeal, Mr Tzovaras appeared for Mr Papanikolaou. Mr Woods of counsel appeared for Mr Tomaras and indicated he had come into the appeal quite late. An attempt was made, at least on the part of Mr Tomaras, to rely on amended grounds of appeal in the following terms:

12. [15]

    Counsel for the respondent objected to the amended grounds of appeal, complaining that he had first received a copy of the document that morning immediately before the appeal was due to commence. The respondent submitted that, with the exception of the proposed ground 2(iii), the amendments were no more than a re-formulation of the grounds originally filed. As to ground 2(iii), it was submitted that it raised “a completely new ground and in fact wasn’t run at trial”. [2] There followed a discussion as to the possibility of adjourning the appeal to allow Mr Papanikolaou to rely on the amended grounds but Mr Woods indicated he would be “making no application for an adjournment” and that he would proceed and would confine his arguments to the grounds as originally filed and that he would treat the proposed amended grounds as “speaking notes”. [3] Leave to rely on the amended grounds of appeal was refused by the Court at the appeal hearing. [4]

13. [16]

    Mr Woods indicated that he “formally abandoned” ground 8 on behalf of Mr Tomaras. However, that ground was not abandoned by Mr Tzovaras on behalf of Mr Papanikolaou.

14. [17]

    I propose first to deal with the specific grounds of appeal (grounds 8 and 9) before moving to the more general assertion that the verdict was unreasonable and the specific arguments made under that ground.

Ground 8 (Mr Papanikolaou only): The primary judge erred in failing to direct the jury that if they were satisfied that the evidence adduced by the Crown did not exclude the hypothesis advanced by the Appellant, namely that the fire may have been caused by an electrical fault such as arc tracking, they should find the Accused not guilty.

1. [18]

   No complaint was made at the trial that the directions on circumstantial evidence were inadequate or should specify a precise “hypothesis” along the lines of that contemplated by this ground of appeal. Leave is required pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [19]

   I would not grant leave because there is no substance to the complaint underlying this ground of appeal. One of the central issues at the trial was whether the prosecution had proved beyond reasonable doubt that the fire was deliberately lit. One alternative inference was that the fire was the result of an accident caused by electrical arcing or otherwise. Mr Tomaras also called evidence from a Mr Chan who said that there was a broken window, giving rise to the possibility of foul play by somebody who, unlike the applicants, did not have access to the premises.

3. [20]

   The trial Judge directed the jury correctly as to the process of circumstantial reasoning in a criminal case. She told the jury that it could only convict the particular accused man if “the only conclusion that can be drawn from [the] facts is that he is guilty”. Later in the summing up, this direction was reiterated in the following terms:

4. [21]

   Her Honour then said:

5. [22]

   The trial Judge provided the jury with documents (relevantly identical in each case) referred to as “question trails”. The first question in the trail was:

6. [23]

   In respect of each accused, the jury was directed to ask itself “does that combination of circumstances satisfy me beyond reasonable doubt of Question 1?” and “is that the only reasonable conclusion on the facts that is open on the facts that you have found?”.

7. [24]

   The question and directions, fashioned in this general way, clearly encompassed the need for the prosecution to exclude the possibility that the fire was caused by “an electrical fault such as arc tracking”. To have defined the directions or question more narrowly could not have been to the advantage of the applicants. There were other potentially innocent inferences that the jury may have considered and been required to exclude: for example, that (i) Mr Hu was responsible for the fire, (ii) Mr Hu engaged another person to start the fire, (iii) an unknown third party set the fire, (iii) one, or other, but not both, applicants were responsible, (iv) the applicants, or one of them, caused the fire by negligence (e.g. by leaving the toaster on). To have emphasised one of the defence case theories would possibly have disadvantaged the applicants. It may be that this is the reason that neither defence lawyer at trial sought any redirection along the lines suggested by ground 8.

8. [25]

   I would refuse leave to appeal on ground 8 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 9: The primary judge erred in failing to direct the jury that the failure of the Crown to call Mr Hu to give evidence gave rise to an inference adverse to the Crown’s case, namely an inference that if Mr Hu had been called to give evidence, his evidence would have been adverse to the Crown’s case

1. [26]

   The written submissions concerning this ground of appeal were pithy and in the following terms:

2. [27]

   The ground as formulated suggested that a Jones v Dunkel [7] direction should have been provided. It seemed that this submission was not pressed and, if it was, it would be contrary to authority: see, for example, RPS v The Queen (2000) 1999 CLR 620; [2000] HCA 3 at [29] (‘RPS’). In RPS, the High Court contrasted the situation that may arise in a civil case with the position of an accused person and the prosecutor in a criminal trial:

3. [28]

   In Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, Gaudron and Hayne JJ said at [6] and [17]:

4. [29]

   In summary, in a criminal case, it will rarely – if ever – be appropriate to invite the jury to draw inferences against an accused person because they failed to give or to call evidence. There may be cases where a Jones v Dunkel direction is appropriate if the prosecution fails to call a relevant witness. However, generally the question is not whether an inference might be drawn that the witness would have given unfavourable evidence but whether, in the absence of the witness, “the jury should entertain a reasonable doubt about the guilt of the accused”. [8]

5. [30]

   This was re-iterated in Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 (‘Mahmood’) where Gleeson CJ, Gummow, Kirby and Kiefel JJ said:

6. [31]

   In the present case, the respondent submitted that Mr Hu was not a witness that the prosecution “could be reasonably expected” to call. [10] At the trial, the Prosecutor indicated that they formed the view that Mr Hu was not a reliable witness and, for that, reason did not propose to call him. This accorded with well-known statements of principle concerning the prosecution’s duty to present its case fairly and to call all relevant witnesses: see, for example, Whitehorn v The Queen (1983) 152 CLR 657 at 674; [1983] HCA 42, The Queen v Apostilides (1984) 154 CLR 563 at 576; [1984] HCA 38, R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [50] and, see generally, R v Gibson [2002] NSWCCA 401.

7. [32]

   The submissions in this appeal ignored the circumstances of the witness in question and the events that unfolded at the trial. There was a lengthy discussion of the issue before the jury was empanelled. [11] There was correspondence before the trial in which the Prosecution made it clear that it did not consider Mr Hu to be a reliable witness. The applicants pressed the Prosecutor to call Mr Hu but it was never suggested that it was not open to the Prosecutor to form the view that Mr Hu was not reliable. The Prosecutor indicated that they would provide the accused with assistance to call Mr Hu themselves. This offer was not followed up at the trial. At the hearing of the appeal, Mr Tzovaras said “there were forensic difficulties in dealing with that” because “we’d be examining in chief” and “the defence would be at a disadvantage”. [12]

8. [33]

   The applicants knew that Mr Hu had been charged with arson. The Prosecutor set out the circumstances including:

9. [34]

   That discussion took place in the absence of the jury. Counsel for Mr Tomaras asked one of the investigating police officers the following questions in cross-examination in the presence of the jury:

10. [35]

    In his closing address, counsel for Mr Tomaras referred to Mr Hu as the “missing witness” [15] and the “one witness who did not come”. [16] Defence counsel, quite appropriately, made some mileage out of the absence of Mr Hu from the witness box. Presumably, they made a tactical choice at the trial to leave the evidence in a state where the jury was aware Mr Hu had been charged without reference to fact that the DPP had directed there be no further proceedings. On the appeal, Mr Tzovaras initially submitted that the evidence that Mr Hu had been charged was “not in evidence”. When the transcript was brought to his attention he submitted:

11. [36]

    This submission cannot be given any credence given that its proponent was present, appearing at the trial, when the Prosecutor outlined Mr Hu’s position (charged but subject to a “no bill”) and when his co-counsel asked the relevant questions in cross-examination. [18] The time to correct the matter, if the matter needed to be corrected at all, was at the trial and not, with hindsight wisdom, in the course of oral submissions on the hearing of the appeal.

12. [37]

    Returning to the addresses and directions, after the defence submissions referred to at [35], the Prosecutor invited the trial Judge to direct the jury not to speculate about what Mr Hu may have said had he been called. [19] There was a discussion about the appropriate directions and passing reference to the decisions in RPS and Mahmood. [20]

13. [38]

    The trial Judge directed the jury:

14. [39]

    At the next adjournment, the trial Judge asked if counsel sought any further directions and counsel for both applicants indicated they did not.

15. [40]

    It would have been open to the trial Judge to direct the jury in accordance with the decision in Mahmood. In other words, the trial Judge could have directed the jury that in deciding the case “on the evidence which has been presented”, and in applying the criminal onus and standard of proof, it could take into account Mr Hu’s absence from the trial in determining whether it was satisfied of the accused’s guilt beyond reasonable doubt. In the circumstances, that may have been the preferable course.

16. [41]

    However, the failure to provide that direction did not constitute an error of law or otherwise give rise to a miscarriage of justice. In the context of the summing up as a whole and the circumstances of the trial, it is difficult to see how the direction would have added very much. I am fortified in that conclusion by the absence of any complaint at the trial about the direction not to speculate, and by the failure to make any further submission urging the Judge to provide the jury with a direction in accordance with RPS or Mahmood. Further, there was some force in the Prosecutor’s submission (at trial and on appeal) that Mr Hu was not a person the Prosecutor “might have been expected to call”.

17. [42]

    I would reject this ground of appeal.

Unreasonable verdict grounds

1. [43]

   The remaining grounds of appeal amount to a contention that the verdict is unreasonable or unable to be supported having regard to the evidence. The first ground is cast in those general terms and approximate the terms of s 6 of the Criminal Appeal Act 1912 (NSW). The remaining grounds, in various ways, contend that the prosecution failed to prove particular aspects of its case, that the evidence was deficient in certain respects, or that the jury ought to have entertained a reasonable doubt as to particular issues such as the financial motive of the accused or whether an accidental fire was excluded on the evidence. As it was put in the applicants’ written submission:

2. [44]

   The principles to be applied in determining this ground of appeal are well established: see, for example, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Hawi v R [2014] NSWCCA 83 at [307]-[304]; (2014) 244 A Crim R 169, Dickson v R (2017) 94 NSWLR 47; [2017] NSWCCA 78 at [84] – [86], Koloamatangi v R [2020] NSWCCA 52 at [346]-[347]; (2020) 282 A Crim R 160; Popovic v R [2016] NSWCCA 202 at [274]-[280].

3. [45]

   The Court must conduct an independent review of the whole of the evidence in each case to determine whether the jury ought to have entertained a reasonable doubt as to the guilt of the applicant. Generally, a doubt experienced by an appellate Court is a doubt that the jury should have experienced, unless the jury’s advantage in seeing the witnesses give evidence is capable of resolving that doubt. This is less likely to be the situation in a circumstantial case. The enquiry proceeds on the basis that it is the jury, not the appellate court, that is the constitutional arbiter of whether the prosecution has established the accused person’s guilt beyond reasonable doubt. The advantages enjoyed by a jury go beyond the fact that it was present at the trial and includes the requirement for unanimity and availability of collective and robust debate within the jury room. However, if on the whole of the evidence the appellate court has a doubt about the guilt of an accused, or is left with a sense that an innocent person may have been convicted, it must intervene to quash the conviction. These principles are well known and explained in greater detail in a number of cases resolved in the High Court, some of which are referred to in the preceding paragraph.

4. [46]

   Because the case against the applicants was largely a circumstantial one, the correct process of reasoning on appeal is the one described in Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56 at 503 by Mason CJ, Dawson and Toohey JJ:

5. [47]

   See also The Queen v Baden-Clay (2016) 258 CLR 308 at [50] – [60]; [2016] HCA 35 (‘Baden-Clay’) and Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 (‘Coughlan’). In the latter case, which also involved a conviction for arson and upon which the applicants placed considerable reliance, the High Court held at [55]:

6. [48]

   The applicants are correct in their submission that the scientific and expert evidence was unable, by itself, to exclude the possibility of an accidental fire at the premises.

7. [49]

   Several expert witnesses were called in the prosecution case. The witnesses were of varying degrees of expertise and experience but each was qualified to provide an expert opinion concerning various aspects of the fire and its cause. Some of the experts relied on photographs of the scene, rather than a physical inspection and each had slightly different sources of information. 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.

8. [50]

   The first expert witness was Wayne Schweickle. He was a fire investigator employed by the NSW Fire and Rescue Service. He attended the premises when the fire was yet to be extinguished. He took a number of photographs that were tendered in evidence and provided various opinions as to the possible and likely areas and points of origin of the fire. This was based on the appearance of the areas burned and where the appearance suggested the fire was at its hottest. In cross-examination he refused to accept the possibility that the fire was caused by “arcing” (which counsel said was the same as “sparking” or “a short”) whereby sparks emanate from a power source and cause surrounding items to catch fire. [22] Mr Schweickle said he had never seen that occur. [23] He was taken to an image of a power point and surrounding electrical items (a fridge and a microwave) and agreed the power point appeared to have melted. However, he maintained that this was not the point of origin of the fire because he would “expect to see a very different burn pattern on the wall” and “greater damage to timber shelf above it”. [24] Mr Schweickle’s experience was relatively limited and his evidence on the arcing issue was undermined to a significant degree by the evidence of the next two witnesses called by the prosecution.

9. [51]

   Paul Radford was a senior constable of police who had various qualifications as a forensic investigator and provided similar opinions and hypotheses as to the origin of the fire and its cause. One possibility was that the fire was deliberately lit. In cross-examination, he explained the process of electrical arcing and agreed it was a possible cause of the fire:

10. [52]

    In re-examination, Mr Radford confirmed the possible causes of the fire were either that it was deliberately lit or the result of an electrical fault.

11. [53]

    Phillip Etienne was an inspector with the NSW Fire and Rescue Service. He allowed for the theoretical possibility of “arc tracking” being the cause of the fire. However, his evidence was guarded and he considered the theoretical possibility did not fit with his observations of the building on the day of his inspection. On the other hand, he had not investigated the possibility thoroughly. This is part of the evidence he gave in cross-examination:

12. [54]

    John Gardner was an electrical engineer with many years’ experience in fire investigation. He examined a toaster found at the scene, as well as an electrical jug and various power boards, extension cords and power outlets through which the appliances were connected to the power circuit within the building. The toaster was relevant because of things the applicants told police and insurance investigators after the fire. Mr Gardner was of the opinion that the toaster may have been switched on and operating at the time of the fire as the toaster was found with its lever in a down position, although he said this may have also occurred as a result of damage from the fire. [26] Mr Gardner gave evidence that damage to some of the power boards and appliances was not consistent with “arcing” or “arc tracking” or the appliance being the cause of the fire. He explained:

13. [55]

    His conclusion on the question of whether the fire was caused by arcing at that power board was as follows:

14. [56]

    He provided similar opinions in relation to other appliances found at the scene.

15. [57]

    However, he described more severe damage to the power outlet, power board and cords connecting to the toaster which was found in the fire debris under a table that had collapsed due to the fire. As to that finding, he confirmed the contents of his expert report where he said:

16. [58]

    He confirmed this under cross-examination by Mr Tzovaras:

17. [59]

    Belinda Jones was a senior fire investigator with Fire Forensics Pty Ltd. She had a great deal of experience having attended around 1,000 fires. She was engaged by the insurer in December 2015 and prepared a report. Ms Jones interviewed the applicants and inspected the premises and some of the physical exhibits. She inspected the toaster at the police station and noted it was “badly fire damaged” and “the lever for the pop-up and down appeared to be in the down position”. [31] She formed a view that the fire started at or near the toaster but saw nothing that would indicate the fire was inside the toaster. [32] She excluded a number of other sources of ignition.

18. [60]

    There was also no evidence that accelerant, such as petrol or other flammable liquid, was detected. However, the evidence on this issue was diluted because the witnesses, Mr Etienne and Mr Radford, said that the dangers caused by the structural damage to the building prevented the specially-trained sniffer dog (Viking) from undertaking a full examination of the kitchen area. [33]

19. [61]

    The foregoing analysis represents no more than a scant overview of the expert and forensic evidence called at the trial. I have not summarised the physical and photographic evidence that formed an important part of the material considered by the jury. Nor have I described the information upon which each expert based their opinions or the source of that information. I have considered all of that evidence.

20. [62]

    This brief review of the expert evidence is enough to show that the applicants’ submission concerning the expert evidence is fundamentally sound, as far as it goes. That is, the expert and forensic evidence was not sufficient, considered in isolation, to establish beyond reasonable doubt that the fire was deliberately lit. Put another way, this part of the prosecution brief could not exclude the possibility that the fire resulted from an electrical fault or accident.

21. [63]

    The only witness who was prepared to rule out the possibility that an electrical fault (whether it be arcing or otherwise) caused the fire was Mr Schweikle. The other experts tended to accept that it was possible that arcing occurred although not all of them accepted the possibility that arcing was the cause of the fire. There was no rational basis upon which the jury could have accepted Mr Schweikle’s evidence over the evidence of Mr Radford, Mr Etienne, Mr Gardner and Ms Jones: cf R v Manley (Court of Criminal Appeal (NSW), 15 December 1994, unrep) and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 558 - 559; [1984] HCA 7.

22. [64]

    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”: see Knight extracted at [47] above. 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.

23. [65]

    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, discussed and explained in cases such as Knight, Baden-Clay and Coughlan, can be addressed.

Opportunity, the toaster, movements around the time of the fire, interviews with investigators and a lie

1. [66]

   There was no dispute that the applicants were present at the premises shortly before it was seen to be on fire. Mr Tomaras had keys to the premises and worked there. There was evidence (from a neighbour, Mr Barkho) that suggested Mr Panikolaou may have lived there or slept there at times. [34]

2. [67]

   The applicants’ case, speaking generally and based on what they told investigators, was that they were at the premises on the morning of the fire to collect a pallet that was being cleared through customs. They told Ms Jones (and others) that Mr Papanikolaou was cooking toast with cheese in a toaster in the kitchen area but that Mr Tomaras decided they should go and get food elsewhere. The suggestion was that the toaster was left on and this may have caused the fire. The applicants left the premises at around 10.30am or 11.00 am. They received a ‘phone call from a neighbour telling them the premises were on fire a short time later. The first emergency call was logged at around 11.21am. [35] The applicants returned to the premises where they spoke to fire fighters and a police officer.

3. [68]

   The two men spoke to a number of people in the hours, days and months after the fire and before they were charged. This included conversations with police and insurance investigators which were recorded by one means or another. A deal of this material was tendered before the jury.

4. [69]

   On the day of the fire the applicants approached police at the scene and told them they were in the warehouse shortly before the fire. [36] They said that “he placed a piece of cheese on the bread and put it in the toaster” and the toaster was left on when they left the premises. [37] The applicants were co-operative with the police and voluntarily attended Mascot Police Station. [38]

5. [70]

   Thereafter, the applicants spoke to a number of insurance investigators and police officers. For example:

6. [71]

   There were significant inconsistencies in the versions provided by the applicants at various times. However, for the most part, the applicants co-operated with the investigators and gave a generally consistent and exculpatory accounts. The Prosecutor raised questions over some aspects of their (mutual and respective) versions of events and, at trial, contended that some of their statements were lies told out of a consciousness of guilt. No complaint was made about these submissions (at trial or on appeal) and the jury was properly directed as to the caution with which such submissions and evidence should be treated. [40]

7. [72]

   By way of example, the Prosecutor adduced evidence that called into question the timing of the arrival of the customs clearance relating to the crate they said they were unpacking. [41] However the evidence refuting their claim was, on assessment, inconclusive. In their closing address, the Prosecutor said the description on an invoice for “project management” was dubious. [42] It was put that Mr Papanikolaou was not honest in his ERISP when he denied receiving messages from Senior Constable Wood and gave misleading information about his relationship with Mr Karris. These are just a few examples.

8. [73]

   Whatever may be said about the applicants’ explanations, any false information could not by itself establish their guilt beyond reasonable doubt. I have largely disregarded this evidence in determining the grounds of appeal asserting that the verdicts were unreasonable or unable to be supported having regard to the evidence. However, the jury acting reasonably was entitled to take this evidence into account in support of the guilty inferences the prosecution invited it to draw.

9. [74]

   There was one particular aspect of the applicants’ version of events that was put to the jury, and able to be used by it in each case, as a lie told out of a consciousness of guilt. In his statement dated 29 December 2015, Mr Tomaras said “[t]his morning I collected my friend Angelos from River Road in Panania to assist me for the day”. [43] In his statement, Mr Papanikolaou said that at 8.00am on 29 December 2015 Mr Tomaras called him, that “we agreed that we would meet near the train station at Panania” and that Mr Tomaras picked him up “after 9.00am … from Panania in his truck”. [44]

10. [75]

    Other evidence called at the trial was capable of establishing that the account given by both men about meeting at Panania a couple of hours before the fire was false. There were telephone call charge records that tended to prove that Mr Tomaras was not in the area of Panania on the morning of the fire. [45] Banymin Barkho gave evidence of seeing a man, almost certainly Mr Papanikolaou, at the warehouse in Sarah Street between 10.00pm and 11.00pm the night before the fire. He believed the man lived at 12 Sarah Street and explained the basis of his belief. [46]

11. [76]

    There were other statements made by the applicants that the Prosecutor relied on as establishing a deliberate distancing of themselves from the fire and each other. It is not necessary to refer to these in details but the jury was entitled to take the evidence into account provided it approached the evidence cautiously in accordance with directions provided by the trial judge.

Association with Mr Hu, the insurance claim and a $30,000 invoice for project management

1. [77]

   There was no dispute that Mr Tomaras worked for Mr Hu in some capacity. His precise role was described in various ways but there was no doubt that he had some kind of subordinate role in Mr Hu’s property business. It was also agreed that Mr Papanikolaou provided services, labouring and the like, to the business being conducted out of the premises at Sarah Street. Mr Tomaras had keys to the premises. He was known by some of the locals who gave evidence at the trial or provided information to the police, at least by sight or by his first name (Con).

2. [78]

   Mr Hu’s company had insurance over the building and its contents with a company called Resilium Insurance Broking Pty Ltd (‘Resilium’). A representative of Resilium gave evidence and the insurance policies were tendered. [47] A claim for the damage caused by the fire was lodged in January 2016 and the contact name for the claim was Con Tomaras. [48]

3. [79]

   Keith Goss worked in the insurance industry and, at the time of the fire, was the CEO of RSL Cabs Mutual (‘RSL’), a taxi company that occupied the premises at 14 Sarah Street, Mascot. He said when he commenced work at RSL “it was very obvious that the building next door had been substantially damaged by fire”. [49] He wanted to meet the occupants and owners of the building. It was in that context that he met Con Tomaras in January 2016. He asked for an introduction to the owner of the building. He met Mr Hu in around March 2016 and discussed the possibility of Mr Hu putting in a bid for the building at 14 Sarah Street. Mr Hu expressed some interest.

4. [80]

   Mr Goss asked Mr Hu about the progress of the insurance claim and offered to assist Mr Hu in expediting the claim. Mr Hu appointed Mr Goss as his agent to liaise with the insurer. Having made contact with the insurance investigators, Mr Goss contacted Mr Tomaras. A number of telephone calls on 10, 14, 15 and 18 June 2016 were intercepted by police and tendered at the trial in the case of both applicants. [50] There was discussion about the need for the applicants to speak to the insurers. Mr Tomaras said that they had co-operated with both police and the insurers and had spent many hours doing so. Mr Tomaras said he had fallen out with Mr Hu over various matters, mostly to do with money. He said Mr Hu owed him and Mr Papanikolaou money for jobs they had done for him.

5. [81]

   In a conversation on 10 June, Mr Tomaras agreed that if the $30,000 debt was paid to Mr Papanikolaou, Mr Papanikolaou would co-operate with the insurance investigators. He said “If John Hu wants Angelo to cooperate and help … all he’s got to do is bloody pay what he owes him for heaven’s sakes …”. [51] This discussion suggested the money was for labouring and there was talk about the number of hours and relevant rates. The conversation continued:

6. [82]

   Mr Goss asked Mr Tomaras to provide an invoice setting out the amount Mr Hu owed Mr Papanikolaou and details of the goods Mr Tomaras lost in the fire. [52]

7. [83]

   On 14 June 2016 Mr Goss reminded Mr Tomaras to send a document setting out “the list of equipment that you said was destroyed by fire” and Mr Tomaras said he would send it later that day. [53] On 15 June, Mr Goss asked about the document again, Mr Tomaras said he would bring it to him in person, and a meeting was arranged for later that day. [54] Mr Goss said that Mr Tomaras, and Mr Papanikolaou, met with him later that afternoon. He said he was provided with the documents during the meeting but later said one of the documents may have been left on his desk. [55] Mr Goss was not challenged on this topic.

8. [84]

   Exhibit 48 was an invoice for $30,000 dated 15 June 2016 from Angolos Papanikolaou to Wei and Ming Group Pty Ltd for “Project Management” work performed in “June-Dec 2015”.

9. [85]

   Exhibit 48 also included a list of “Items belonging to Con Tomaras that were in storage at 10-12 Sarah Street Mascot”. The total amount for these items was around $17,000 and there was also reference to “$1,500 customs fee I paid”. At the bottom of the list was a note to “Keith” asking him to call Con Tomaras and Mr Tomaras’ mobile number was provided.

10. [86]

    The prosecution case was that the $30,000 referred to in the invoice was, in reality, a means by which the applicants were to be paid for starting the fire. The respondent placed considerable reliance on the interactions with Mr Goss, the invoice itself, and in steps taken thereafter to call in this debt. It was an important part of the prosecution’s circumstantial case.

Calling in the debt and some of the relevant telephone intercepts

1. [87]

   Within days of the invoice being provided, on 17 June 2016, a man called George Karris called Mr Hu and said he was speaking on behalf of “Angelo”. [56] He said “Angelo [is] asking for some money”. Mr Karris then said that “Angelo” had just had a call from the insurance company (“John Coot”) and he is:

2. [88]

   Mr Karris suggested Mr Hu meet with Angelo.

3. [89]

   On 18 June 2016 there was a conversation between Mr Hu, Mr Tomaras and Mr Papanikolaou. [57] Mr Tomaras translated for Mr Papanikolaou. There was discussion about Mr Hu and Mr Papanikolaou having a face to face meeting or speaking with each other in person.

4. [90]

   Around half an hour later Mr Tomaras spoke with a Paul Ekes about a visit to Mr Hu’s home in an attempt to meet face to face with Mr Hu. [58] After a further hour, Mr Ekes spoke with Mr Hu with Mr Papanikolaou present. [59] The recording device picked up Mr Papanikolaou giving Mr Ekes instructions. Mr Hu asked “What for I owe him money?” and Mr Ekes replied, “He said he did some work for you at Mascot and um he didn’t get paid for it.” Mr Hu denied making a payment of $5,000 and said that “he all work to Con and… Con give the money”.

5. [91]

   Towards the end of the call, Mr Ekes said:

6. [92]

   A little later on 18 June 2016, Mr Tomaras called Mr Hu and discussed the issue of the money said to be owed by Mr Hu to Mr Papanikolaou. Part of the conversation was as follows:

7. [93]

   Mr Hu said he didn’t understand and denied paying the five thousand dollars. There was talk of what was “fair” and mention of “twenty thousand dollars”. Mr Tomaras was insisting on a face to face meeting but Mr Hu was resisting this. Mr Tomaras said:

8. [94]

   At the request of counsel for the respondent, I listened to the audio recordings of exhibits 64, 97, 99, 100 and 110. A juror listening to the audio recordings of these calls may have formed the view that Messrs Karris, Ekes and Tomaras were speaking in a threatening manner and that Mr Hu was feigning ignorance of the debt and payments to which they were referring.

9. [95]

   My assessment is that the conversation between Mr Tomaras and Mr Hu on 18 June 2016 was highly incriminating. Mr Tomaras’s coy reference to a “certain job”, the agreement to pay “after Christmas when you came back”, the discussion of payments made and not made, and Mr Hu’s unconvincing assertions of ignorance all pointed in one direction, namely, that the men were involved together in the alleged criminal enterprise.

10. [96]

    There were a series of telephone calls between the applicants in June 2016 in which they discussed their interactions with Mr Hu, the progress of the police and insurance investigations, and the version of events they had provided or would continue to provide in relation to the fire and their movements on the day of the fire. [63] There was a lengthy intercepted telephone call on 25 June 2016 between Mr Tomaras and Sam Papinikolaou in which Mr Tomaras provided information about the investigations and his thoughts about how he and Angelos Papanikolaou should deal with the police and insurance agents. [64] There were no direct admissions made in these calls but their contents are curious and unusual if the applicants had no involvement in the fire. On 26 June 2016, Mr Tomaras called Mr (Angelos) Papapinkolaou and said he was coming to pick him up because “I want to talk to you.” [65]

11. [97]

    There was a recorded call on 20 October 2016 between George Karris and Mr Papanikolaou in which there was a discussion about the dates at which the latter boarded at Mr Karris’ home. [66] Mr Papanikolaou reported this conversation to Mr Tomaras almost immediately after hanging up. [67] Mr Tomaras said:

12. [98]

    There is a clear inference from a number of the communications that the applicants believed calls on Skype could not be intercepted. In a ‘phone call with an unknown female on the same date Mr Papanikolaou said “I can’t talk over the phone for these things,” although just what “these things” was a reference to is a little ambiguous. [68]

13. [99]

    Further conversations (seemingly via Skype) between the applicants were recorded on 8 and 30 December 2016. [69] Mr Papanikolaou expressed concerns about the police investigation and the police pursuit of him. Mr Tomaras asked “Did they say anything about me” and said “They are waiting for us to ring each other. Do you understand?” to which Mr Panaikolaou said (or asked) “With Skype we don’t have a problem they cannot find anything?” Mr Tomaras responded “no man” and “suck my balls”. [70]

14. [100]

    On 30 December, Mr Tomaras asked whether Mr Papanikolaou had said anything to George [Karris]. Mr Papanikolaou responded “No what could I have said to George? I don’t have nothing to do with George?” Mr Tomaras responded “if that is the case they can go fuck themselves”. On the prosecution case, and Mr Karris’ evidence, Mr Papanikolaou had said something to George. He had admitted setting the fire.

15. [101]

    It is apparent that the various participants in these calls - especially the applicants - were conscious of the possibility that the calls were being intercepted.

An alleged admission to George Karris

1. [102]

   George Karris gave evidence of his association with Mr Papanikolaou. He explained the context in which he made the telephone calls to Mr Hu in June 2016. He then gave the following evidence, admitted only in the case of Mr Papanikolaou: [71]

2. [103]

   This evidence, if accepted, was devastating. It constituted a direct admission of the offence with which Mr Papanikolaou was charged.

3. [104]

   Mr Karris was cross-examined. He was asked whether he was a “law abiding citizen” and he said that he was. [72] He was then confronted with the fact that he had a criminal record for drink driving (high range PCA) and a common assault. [73] It was then suggested that he had lied to the jury about being a law abiding citizen. It was put that the assault involved throwing a chair at Mr Papanikolaou but the chair hit a woman standing nearby. [74] He said he had not lied and considered himself to be law abiding. It was put to him that he understated the length of time Mr Papanikolaou stayed at his house but he maintained that it was only for a “couple of months”. [75]

4. [105]

   As to the critical evidence of the admission, Mr Karris agreed that the applicant told him that he had done a variety of jobs for Mr Hu. It was put to the witness that he made up the evidence about Mr Papanikolaou telling him that he set fire to the warehouse and the procedure involving the lighting of the fire. Mr Karris said the evidence was true, not fabricated, and “No, Your Honour. I did not make it up.” [76]

5. [106]

   It was then put to him that he suspected the applicant was “having a relationship with your wife” to which he replied initially, “Oh my God” and then denied the proposition. [77] It was suggested he wanted his statement to police to be confidential because he knew it contained lies and the witness denied that suggestion. Mr Karris denied that he was motivated by a desire to “retaliate further against Mr Papanikolaou”. [78]

6. [107]

   It was a matter for the jury to make findings as to Mr Karris’ credibility. This is an example of the kind of evidence that is difficult to assess at a distance. However, on paper, the cross-examination did little to diminish the witness’s credibility. If accepted, his evidence was highly inculpatory of Mr Papanikolaou.

7. [108]

   The ‘phone call in which Mr Karris spoke to Mr Hu (admitted against both applicants) was part of a body of evidence that provided cogent, if circumstantial, support for the prosecution case. [79]

Was the verdict unreasonable or unable to be supported?

1. [109]

   Having considered the whole of the evidence adduced at the trial, I am unable to accept the applicants’ submission that the jury ought to have entertained a reasonable doubt or that there was an unresolved doubt that the fire was deliberately lit. The prosecution case against Mr Tomaras was a very strong one. Even taking into account the dangers of evidence of unrecorded oral admissions, the evidence of Mr Karris meant that the case against Mr Papanikolaou was bordering on overwhelming.

2. [110]

   The applicants placed considerable reliance on the High Court’s decision in Coughlan v The Queen, [80] another case involving a suspicious fire where a jury convicted on the basis of circumstantial evidence. The High Court held that the Queensland Court of Appeal erred in failing to quash the conviction. There are some similarities between the cases. In both cases, the expert evidence was inconclusive, and the explanations provided by the accused, who clearly had the opportunity to commit the offence, was not convincing. However, appeals based on the contention that a verdict is unreasonable or unable to be supported are, by their nature, fact specific. They are to be resolved based on their individual facts and circumstances and on the particular evidence adduced at the trial.

3. [111]

   In Coughlan v The Queen, [81] the High Court was troubled by the absence of any clear financial motive of the appellant to commit the offence. In the present case, the prosecution called a body of evidence to establish the connection between the applicant and the owner of the building (Mr Hu) who had insurance over the building and made a claim shortly after the fire. The evidence demonstrated that the applicants, between them and together and using intermediaries, made repeated attempts to obtain money from Mr Hu. A very strong inference was that the debt they were chasing concerned the promised payment for their role in setting the fire. The tone and content of the conversations, the reference to a “certain job”, the alleged promise of payment after Christmas, the desire not to talk on the telephone, Mr Hu’s expressed lack of understanding of what anybody was talking about; all of these matters, and more, were to be considered in the context of the whole of the evidence and the surrounding events.

4. [112]

   The jury was entitled to take into account the lie that each of the accused told as to meeting in Panania that morning. For the purpose of making an independent assessment of the evidence, I am satisfied that this was a lie and one told out of a consciousness of guilt.

5. [113]

   The jury also had a large body of evidence of recorded conversations that were incriminating and difficult to explain other than by reference to the fact that the applicants, and each of them, were involved in the attempted insurance fraud in the manner alleged by the prosecution.

6. [114]

   On the hearing of the appeal, counsel for Mr Tomaras submitted that his client and Mr Hu had known each other for a number of years and there may be many explanations for them not wanting to talk on the telephone. He submitted:

7. [115]

   There was no evidence at the trial of any other relevant and specific “shonky thing” that the protagonists may have been involved in together. It is true that Mr Tomaras spoke about Mr Hu in disparaging terms in his conversations with Mr Goss and accused him of not paying his debts, possible tax avoidance and the possibility he would commit perjury. However, the content and context of the recorded conversations does not give rise to any reasonable inference other than that the parties were speaking about the warehouse fire and Mr Hu’s attempt to obtain an insurance payout. The possibilities that the false account and incriminating calls related to anything else, or some other “shonky thing”, is speculation and nothing more.

8. [116]

   I have taken into account the Prosecutor’s failure to call Mr Hu at trial but that failure does not cause me to entertain a reasonable doubt as to the applicants’ guilt or lead me to conclude that the jury, acting reasonably, ought to have entertained such a doubt.

9. [117]

   I have also taken into account the various matters raised by the applicants in the grounds of appeal and submissions. These include:

10. [118]

    Each of these matters, and more, was available for the jury to consider in deciding whether the evidence considered as a whole excluded any reasonable inference inconsistent with the individual applicant’s guilt. The jury concluded that it did. That conclusion was open on the evidence. The jury’s decision was reached in the context of firm instructions as to the presumption of innocence, the requirement of proof beyond a reasonable doubt and the way that circumstantial evidence should be approached in a criminal case bearing in mind the very high burden of proof.

11. [119]

    The verdict was not unreasonable or unable to be supported having regard to the evidence. Grounds 1 to 7 are not made out. It follows that the appeal against conviction must be dismissed.

Conclusion and orders

1. [120]

   I would make the following orders in each case:

   1. (1)

      Leave to appeal on ground 8 is refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Otherwise, and where necessary, leave to appeal against conviction is granted.

   3. (3)

      The appeal is dismissed.

2. [121]

   HIDDEN AJ: I agree with Hamill J.