Everingham v The Queen [2007] QDC 107

DISTRICT COURT OF QUEENSLAND CITATION: Everingham v The Queen [2007] QDC 107 PARTIES: TREVOR RAYMOND EVERINGHAM Applicant V THE QUEEN Respondent FILE NO/S: Indictment No 125 of 2007 DIVISION: Criminal Jurisdiction PROCEEDING: Application to severe charges on indictment and exclude evidence ORIGINATING COURT: District Court, Ipswich DELIVERED ON: 28 May 2007 DELIVERED AT: District Court, Southport, by telephone HEARING DATE: 3 May 2007 JUDGE: Kingham DCJ ORDERS: 1. Application to sever the indictment is declined. 2. Evidence of the Beenleigh fire is inadmissible at the trial of the charged fires. 3. Application to rule inadmissible evidence of the Windsor and Queen Street fires is declined. CATCHWORDS: CRIMINAL LAW – INDICTMENT – JOINDER OF CHARGES – SERIES OF OFFENCES OF THE SAME OR SIMILAR CHARACTER –Where evidence of each charge is cross- admissible against each other. EVIDENCE – ADMISSIBILITY OF PREVIOUS OFFENCES AND UNCHARGED ACTS – SIMILAR FACT EVIDENCE - Defendant’s connection to each of the fires and the circumstances of each of the fires – Accidental cause not excluded for uncharged act. Criminal Code 1899 (Qld), ss461, 567(2), 597A Hoch v The Queen (1988) 165 CLR 292 - applied Pfenning v R (1995) 182 CLR 461 - applied Phillips v The Queen (2006) 224 ALR 216 - applied R v MAP [2006] QCA 220 - applied Sutton v The Queen (1984) 152 CLR 528 - applied -- 1 of 9 -- COUNSEL: S.L. Kissick for the Defendant D.R. Kinsella for the Crown SOLICITORS: Ryan & Bosscher for the Defendant Office of the Director of Public Prosecutions (Queensland) for the Crown [1] Trevor Everingham faces nine charges arising out of four fires which occurred between October 1992 and May 2001 in various places in South-East Queensland (the charged fires). The Director of Public Prosecutions (DPP) has presented one indictment which joins all nine charges so they may be tried together. [2] The DPP has also indicated its intention to lead evidence at trial about four other fires in NSW and South-East Queensland (the past fires). Mr Everingham has applied for pre-trial rulings that only those charges relating to a single fire are tried together and that evidence of the past fires in inadmissible. [3] The DPP resists separate trials of the charged fires on the basis they are properly joined as forming a series of offences of the same or similar character (s567(2) Criminal Code). Mr Kinsella, for the DPP, submitted that the test for a requisite nexus to found a series of offences is less onerous than the test applied to determine admissibility of similar fact evidence. [4] In the circumstances of this case, it seems to me that the requirement for a nexus between them is only established if the evidence about them is cross- admissible. In any case, during oral submissions Mr Kinsella conceded that, unless evidence in relation to each charged fire is cross-admissible in relation to each other charged fire, the indictment should be severed, because the risk of prejudice to a fair trial could not be overcome by judicial direction of the jury. That is the basis Mr Kissick, for Mr Everingham, submitted his application for separate trials should succeed (s597A). It is unnecessary, therefore, for me to consider further whether there is any relevant distinction between the nexus test and that pertaining to similar fact evidence in their application to this case. [5] As to the admission of evidence of the past fires, the DPP agrees this evidence is admissible only if it constitutes similar fact evidence. The fate of both applications is, therefore, tied to whether evidence of the charged fires and the past fires constitutes ‘similar fact’ evidence. [6] Mr Kinsella submits that the evidence of Mr Everingham’s connection to each of the past fires and the charged fires bears no reasonable explanation other than that he wilfully started each of them. [7] Mr Kissick submits that evidence demonstrates little more than that Mr Everingham has lit fires in the past and that there is a reasonable view of the evidence consistent with his innocence: that is, someone else started one or all 2 -- 2 of 9 -- of the charged fires. To assess the competing contentions it is necessary to provide some detail about the circumstances of each of the fires. The past fires [8] The first of the past fires occurred on 6 October 1981 at Windsor in NSW. Mr Everingham admitted to entering an abandoned dwelling located 2 doors from his home and, in the early hours of the morning, setting fire to tar paper hanging from a wall inside the building. The fire brigade was called and was at the scene when it was extinguished. There is no evidence before me about who called in the fire. This fire will be referred to as the Windsor fire. [9] The second of the past fires occurred on 13 November 1989 at Beenleigh, South-East Queensland. Mr Everingham told police that he was driving past the Beenleigh Historical Village along the highway when he noticed and called in a fire at the Historical Village Shop. The fire occurred late at night. A padlock had been removed from the store’s fence. Mr Everingham was at the scene when it was extinguished. There was no evidence of accelerants having been used. The seat of the fire was located near a power supply source and an electrical cause could not be eliminated. This fire, which I will refer to as the Beenleigh fire was preferred by the police at the same time as the charged fires but Mr Everingham was not committed for trial and the Crown has not indicted him in relation to it. It is, therefore, an uncharged act. [10] The third and fourth of the past fires occurred on 25 and 29 July 1998 at a house in Queen Street, Goodna, South-East Queensland. In chronology, these fires occurred after three of the charged fires and before the last of them. Mr Everingham lived next door to the house. The house was unoccupied but some of the former tenant’s property was still there. The fires occurred late at night or in the early hours of the morning, entry to the house had been obtained by jemmying doors open and property was taken from the premises. No accelerants were identified in either fire, although for the second of them a suspicious odour was noted and the burn pattern was consistent with accelerants having been used. There were two separate seats for the first fire. The seat of the second fire was the wardrobe in a rear bedroom. Mr Everingham lived next door to this property, called in both fires and was at the scene on both occasions when they were extinguished. He was found in possession of property taken from the house. He initially denied involvement in the fires but subsequently admitted responsibility and was convicted of related offences. These fires will be referred to as the Queen Street fires. The charged fires [11] The first of the charged fires occurred at 114 Ewing Road, Woodridge on 5 October 1992, after the Windsor and Beenleigh fires and before the Queen Street fires. The fire occurred late at night or in the early hours of the morning and there is evidence that both the front and rear doors had been jemmied. The seat of the fire was the base of a linen cupboard. There was no evidence of accelerants having been used. Mr Everingham was subsequently in possession of a piece of burned curtain fabric from the premises, although his 3 -- 3 of 9 -- former wife, who gave evidence about the curtain at the Committal, said it may have been a couple of days after the fire that she saw the material. Mr Everingham and his family lived next door to this property. He called in the fire and was at the scene when it was extinguished. Mr Everingham says he was woken by a security guard who alerted him to the fire. Another suspect was interviewed about this fire and denied responsibility. This fire will be referred to as the Ewing Road house fire. [12] The second of the charged fires occurred at a timber yard at 433 Wondall Road, Wynnum on 18 December 1993. The indictment wrongly records the address as 114 Ewing Road and should be amended to correct that error. Once again this fire occurred after the Windsor and Beenleigh fires and before the Queen Street fires. The fire occurred late at night and entry was apparently obtained by the perpetrator jemmying a rear door. There were multiple seats to this fire and no accelerants were identified, although the burn pattern of the fire was indicative of their use. The office had been rifled through, although no property appeared to have been taken. From time to time, Mr Everingham worked as a nightwatchman at adjacent premises and was on duty that night. He called in the fire, tried to fight it and was at the scene when it was extinguished. This fire will be referred to as the Wynnum fire. [13] The third of the charged fires occurred in unit 1/14A Ewing Road, Woodridge on 17 August 1997, before the Queen Street fires. Mr Everingham and his family lived in a nearby unit, no. 7. The tenants were on holidays and the unit was vacant. Entry was apparently obtained by the perpetrator jemmying open the front door. Latent fingerprints, not yet identified, were found on the outside of the front sliding door. Property was stolen from the premises. There was no evidence of accelerants having been used. The seat of the fire was on or near a bed in a bedroom. The fire occurred late at night. Mr Everingham called in the fire and was present when it was extinguished. This fire will be referred to as the Ewing Road unit fire. [14] The last of the charged fires occurred after all of the past fires and the other three charged fires. It occurred late at night to an unoccupied dwelling house at Lamington Parade, North Ipswich on 24 May 2001. There is evidence the perpetrator obtained entry by forcing a door. There was no evidence that accelerants were used and the ignition source was a small pile of paper, clothing and other items in the lounge room. Mr Everingham lived next door, discovered the fire and alerted an employee at a nearby business and asked him to call in the fire. Mr Everingham was at the scene when it was extinguished. He also called the owner to tell him the house was on fire. [15] The owner told police his brother may be responsible because he had accidentally caused a fire some time earlier when he fell a sleep with a cigarette alight and burned a hole in the mattress. The brother suffers from psychizophrenia and had squatted in the house when not undergoing residential treatment. It is not clear where he was living at the time of this fire. Mr Everingham told police that he called in that earlier fire. Mr Everingham said the fire occurred one to two weeks earlier but the owner put it at some 6 weeks earlier. Two days after this last charged fire, the owner’s brother was 4 -- 4 of 9 -- located and interviewed and then returned to a mental health ward. He had black soot on his clothing but denied involvement in the fire. He told police that he only knew about the fire as he had gone there and seen the damage. This fire will be referred to as the Lamington Parade fire. Consideration of similarities [16] The shared and distinguishing features of the fires can usefully be grouped into two categories: Mr Everingham’s connection to the fires and the circumstances of the fires. [17] As to Mr Everingham’s connection to the fires, there are two types of connections present in some of the fires: • his proximity and involvement in the alarm being raised; and • his possession of items taken from the burned premises. It is the first of those two that is the defining feature present to some degree in all the fires. He either lived or worked in the immediate vicinity of and called in or raised the alarm for all the fires with the following exceptions. Firstly, although he was in the vicinity of the Beenleigh fire, he did not live or work nearby. The only evidence about his proximity is that he told police he noticed the fire when he was driving past the premises. Secondly, there is no evidence about how the alarm was raised for the Windsor fire. However, he lived next door and admitted responsibility for the fire. [18] Mr Everingham was found in possession of property taken from the Queen Street house and also the Ewing Road house. He admitted involvement in the Queen Street fire but not in the Ewing Road house fire. He was not found in possession of items from the other burned premises, for one of which, the Windsor fire, he accepted responsibility. In my view, whilst his possession of items from the premises is probative for the Queen Street and Ewing Road house fires, I do not find the question of whether he was or was not in possession of items from the premises of assistance in applying the test for admissibility of similar fact evidence, as it presents as neither a shared nor a distinguishing feature. [19] As to the circumstances of the fires, there are a number of relevant features to be considered. Firstly there is the very consistent pattern that they occurred late at night or in the early hours of the morning in vacant or then unoccupied premises and after forced entry. There are some distinguishing features for some of the fires. For the Windsor fire there is no evidence before me as to forced entry, although this may be explained by the premises being abandoned and derelict. Unlike all the other fires, the Beenleigh fire and the Wynnum fire did not occur in dwellings. Finally unidentified fingerprints were found at the Ewing Road unit fire. Standing alone, the pattern of late night/early morning fires, in vacant premises and apparently after forced entry is unremarkable. However that pattern must be viewed in the context of the Crown case as a whole and may be regarded along with other shared features. 5 -- 5 of 9 -- [20] Secondly, there is some evidence that stealing was one of the purposes of entry. This is less consistent and could only be described as a defining feature in relation to the Queen Street fires and the Ewing Road unit fire. Whilst Mr Everingham’s possession of a piece of burned curtain fabric from the Ewing Road house fire provides a connection between him and the fire, it is unpersuasive as evidence that stealing was the motive for entry. [21] Thirdly, the evidence in all but one of the fires indicates the fires were caused by human intervention. Electrical cause could not be excluded for the Beenleigh fire and this sets it apart from the others. There is inconsistent evidence about the use of accelerants, with there being some indication that accelerants may have been used in the second Queen Street fire, the Wynnum fire and the Ewing Road unit fire. It is worthy of note that there were indications of accelerants in only one of the three fires for which Mr Everingham admitted responsibility. Further, the absence of accelerants is not conclusive evidence that they were not used. They could, for example, have been consumed by the fire. As with evidence as to the possession of items from the premises, I find there presence or absence of little assistance in this exercise. [22] Reducing that, then, to its essence, the probative connections for me are Mr Everinham’s proximity to the fires and his involvement in the alarm being raised, when viewed in the context of the very consistent pattern that they occurred late at night or in the early hours of the morning in vacant or then unoccupied premises, after forced entry and as a result of human intervention. These features are present in all the fires, except the Windsor fire and the Beenleigh fire. The only points of dissimilarity for the Windsor fire are that there is no evidence of forced entry or that he called in the fire. However, he lived next door and has admitted responsibility for setting the fire in the vacant premises. I have indicated that I see the Beenleigh fire as standing apart from the others. Mr Everingham’s connection of proximity to this fire differs from the others. He neither lived nor worked nearby these premises. Further, the possibility that the fire was attributable to an electrical cause could not be excluded. The combination of those two points of distinction has persuaded me that it can and should be viewed differently to the others. The test of applicability [23] Similar fact evidence was the subject of recent consideration by the High Court (Phillips v The Queen), which reaffirmed that, because of its prejudicial effect, its admission is exceptional and requires a strong degree of probative force. Their Honours cited a number of formulations of that requirement and reiterated the explanation of Mason CJ, Deane and Dawson JJ in Pfenning v R at p485 that “The evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving sufficient cogency to the prosecution case or some aspect or aspects of it.” [24] Mr Everingham pleaded guilty to arson in relation to three of the four past fires. The DPP alleges the circumstances pertaining to each of the past and the 6 -- 6 of 9 -- charged fires are so strikingly similar that the evidence possesses the requisite cogency and connexion. It is the combination of the strikingly similar circumstances of all the fires and Mr Everingham’s admission to setting some of them, upon which the DPP relies. [25] In applying the test of admissibility it is, of course, critical to identify the purpose for which the evidence is sought to be led. Mr Kinsella has identified two purposes. Firstly, the Crown case that Mr Everingham is the perpetrator of each of the charged fires is circumstantial. The DPP’s purpose in leading the evidence is to identify Mr Everingham as the offender for each of them. Mr Kinsella submitted the evidence will aid the jury in: • drawing the inference that it was Mr Everingham who set the fires; • rejecting the defence of innocent association or coincidence; and • eliminating other suspects. [26] Secondly, the DPP seeks to lead the evidence to establish that Mr Everingham started the charged fires wilfully, which is an element of the offence of arson (s461). Mr Kinsella submits Mr Everingham’s past conduct is relevant to issues of probability, forseeability and likelihood, each of these being relevant in turn to whether the fires were set wilfully. [27] In R v MAP, Keane JA (with whom McMurdo P and Jones J agreed) applied the reasoning of the majority in Hoch v The Queen (1988) 165 CLR 292 that the basis for the admission of evidence of similar misconduct on the part of an accused “lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged.” (Hoch v The Queen per Mason CJ, Wilson and Gaudron JJ). [28] In Pfenning’s case, Mason CJ and Deane and Dawson JJ stated that “the trial judge …must recognise that propensity is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.” (p166-7). [29] The similar fact evidence must be viewed in the context of the prosecution case as a whole and on the assumption that both the similar fact evidence and the prosecution case, on the basis of the depositions, are accepted as true. It is not necessary that the similar fact evidence, standing alone, demonstrate the guilt of the accused of the charged offence (Phillips v R at p448). When, as here, the evidence is led to prove the identity of the perpetrator, it must be directed to showing a fixed core of characteristics, including conduct, which would be unlikely to occur if the offender and the defendant were different individuals (Sutton v The Queen). [30] It will be evident from what I have already said about the Beenleigh fire that I consider there is a reasonable explanation for that fire that is consistent with Mr Everingham’s innocence. 7 -- 7 of 9 -- [31] As for the other fires, the question then is, viewing the evidence about them in the context of the Crown case for each fire, does the evidence of each of the others possess the relevant probative value or cogency. [32] Mr Kissick relied upon a number of matters which he said demonstrated the requisite probative value or cogency could not be established. [33] Firstly, he argued that while the evidence of the Beenleigh fire was not admissible as similar fact evidence, I should have regard to it in assessing whether, in relation to the other fires, there is a reasonable view of the evidence consistent with Mr Everingham’s innocence. [34] He said this fire should be considered together with Mr Everingham’s statement to police that he called in the earlier fire at Lamington Parade accidentally caused by the owner’s brother. [35] Mr Kissick submitted that, if Mr Everingham’s signature is supposed to be that he calls in fires he starts, both those fires undermine the signature as he called in fires for which a non human cause presented as a reasonable possibility (the Beenleigh fire) or for which he was definitely not responsible (the accidental fire at Lamington Parade). The only evidence that it was called in by Mr Everingham is his statement to the police. There is no evidence to the contrary. [36] Mr Kissick says these two fires demonstrate that Mr Everingham is not responsible for every fire that he calls in. He posed the question “If he is not responsible for all fires he calls in, which fires is he responsible for?” [37] Mr Kinsella’s response to that question is, in effect, those fires that share the other common features and which are, otherwise, unexplained. In relation to the Beenleigh fire, Mr Kinsella submitted that although an electrical cause could not be excluded, in all other respects this fire fitted the pattern he relied upon and evidence of it should be admitted. Further, in relation to the accidental fire, the cause of that fire is explained and is of no ongoing relevance. On the DPP’s submission, it is not just Mr Everingham calling in the fire that provides the requisite cogency, it is that in combination with all the other shared circumstances of each of the fires that fulfils the requirement. [38] There is also the question of probability to be considered when assessing whether there is a reasonable view of the evidence consistent with Mr Everingham’s innocence. Mr Kinsella submits the number of fires with shared features has a significant influence on the reasonableness of a conclusion that exculpates Mr Everingham. While not all features are present for all fires, where there is no accidental explanation for the fire, there is a consistent pattern in the circumstances of the fires; in Mr Everingham’s proximity to them and in his role in raising the alarm. That he may have called in a fire that he did not start does not destroy or significantly undermine the probative value of that pattern when viewed in its context. 8 -- 8 of 9 -- [39] Mr Kissick also raised the existence of other suspects for the Ewing Road house fire and the Lamington Parade fire. In the case of the Lamington Parade fire, the other suspect was located a couple of days after the fire, covered in soot but gave an explanation to the police. The previous fire incident he had been involved in was accidental and there was no other evidence to link him to this fire. [40] The fact that there are other suspects does not preclude the reception of similar fact evidence. Indeed one of the purposes for which it is tendered is to exclude other suspects and to identify Mr Everingham as the perpetrator. The presence of other potential suspects is not, therefore, a point of distinction between the fires that undermines the cogency of the similar fact evidence. [41] The final matter raised by Mr Kissick related to the points of distinction for the Wynnum fire; that is that the fire occurred at business premises not a dwelling house and that there were indications of accelerants having been used and multiple seats of the fire. The pattern relied upon by the Crown is not the nature of the premises, except to the extent that they are vacant at the time of the fire. Rather, a defining feature is Mr Everingham’s proximity to the fire. That is shared in this case, although the reason for his proximity differs. I do not consider there is any particular significance in that. I have already addressed why I do not consider the presence or absence of indications of accelerants is of any assistance in determining the admissibility of the evidence. As to the multiple seats, it should be noted that Mr Everingham has admitted responsibility for two fires at the house in Queen Street the fires of which had two seats to the fire although the second had only one. Once again, I do not find the number of seats of the fire is of any particular assistance in determining whether the evidence should be admitted. [42] I have carefully However, having considered the evidence of each of the charged fires and past fires in the context of the Crown case as a whole, I am satisfied that the evidence of the past fires, save the Beenleigh fire, is sufficiently cogent to warrant its admission in relation to each of the charged fires. Its cogency lies in establishing the strikingly similar circumstances between the fires to which Mr Everingham has admitted responsibility in the past and the circumstances of the charged fires. Its relevance lies in its probative value on issues of the identity of the perpetrator and the wilfulness of the acts leading to the fires. I also find the circumstances of the charged fires are so strikingly similar that evidence regarding each is admissible against each other. [43] Accordingly, I decline the application to sever the indictment. I find that evidence of the Beenleigh fire is inadmissible at the trial of the charged fires. I decline the application to rule inadmissible evidence of the Windsor and Queen Street fires. 9 -- 9 of 9 --