R v Carrington [2018] NZDC 6221 (28 March 2018)

Last Updated: 16 May 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2017-016-000659

[2018] NZDC 6221

THE QUEEN

v

KENNETH WILLIAM ERNEST CARRINGTON

Hearing:	28 March 2018
Appearances:	T C Tran for the Crown O S Winter and G M Stone for the Defendant
Judgment:	28 March 2018

ORAL JUDGMENT JUDGE L C ROWE

[1] Kenneth Carrington is charged with arson. It is alleged that on 1 February 2017 at Woodville he intentionally and without claim of right, damaged by fire a moveable property at [address deleted], Woodville, the property of the Crown, intending to cause loss to the Crown.

[2] The only matter at issue in this Judge alone trial is being whether or not Mr Carrington damaged the property by fire, in other words did he set fire?

[3] It is proved beyond reasonable doubt that it was him, there is no issue taken that it was intentional without claim of right, and the property at that time belonged to the Crown and the intention would have been to cause loss to the Crown.

[4] The essence of the defence case is that on the key issue which is identity of the person who started the fire, or perhaps more precisely that it was started by someone

R v KENNETH WILLIAM ERNEST CARRINGTON [2018] NZDC 6221 [28 March 2018]

and that the person who started it was the defendant, is based around the standard of proof.

[5] The defence case is that the Crown case, taken at its highest, establishes significant suspicion, likelihood, even high likelihood but to proof beyond reasonable doubt.

[6] The Crown case is based around three main propositions. The first is that he, the defendant, had significant animus or vexation towards the asset recovery team who had been instrumental in seizing that property from him. Secondly, that Mr Carringto n was identified at Woodville at the relevant time and indeed at the property at the relevant time. And thirdly that the fire was deliberately lit and that when these matters are taken together, the inference to be drawn is that it was the defendant who lit this fire.

[7] Dealing with the issue of animus or vexation, or perhaps in usual terms “motive”, Mr Carrington previously owned this property at Woodville, he was convicted in or about 2015 of growing cannabis on the property. The asset recovery team secured the property under the asset forfeiture regime as tainted property.

[8] There is no doubt that the property was passed to the Crown by consent in 2015 although Mr Carrington continued to live at the address on an electronically-monito red sentence through into 2016.

[9] The evidence of vexation over this process on Mr Carrington’s part arises from firstly, his dealings with the police and asset recovery team, particularly [Detective Sergeant 1]. Her evidence, which is largely uncontradicted is that Mr Carrington sent her highly abusive and offensive emails throughout 2016.

[10] He also sent an email which is exhibit 2, dated 3 October 2016 to [the Detective Sergeant 1], reading simply, “Woodville’s yours, or what’s left of it.”

[11] When the representative of the Official Assignee, [name deleted], went to the property about two weeks later, the property was found damaged and graffiti was

found inside the main building which was personally derogatory of [Detective Sergeant 1] but also of the police generally. There is no question that Mr Carringto n wrote that graffiti.

[12] The damage to the property cannot be determined conclusively as having been caused by the defendant. He denies having caused the damage. The evidence to my mind establishes that he most likely caused it having regard to exhibit 2, that is the email of 3 October, but also having regard to the timing, in other words the damage was discovered after he had vacated the premises.

[13] Clearly, in addition to damage, there had been removal of fixtures such as carpets. The damage was complete in the sense that a veranda had been removed, almost every window had been broken, almost everything of value had been broken.

[14] Also when Mr Carrington later spoke with [Detective Constable 2] in Gisborne in March 2017, after initially denying causing the damage, he responded when asked about the damage that it was his house, it had not been forfeited yet and he was still the lawful occupier.

[15] I also note that there had been a call to Meridian Energy in September 2016 where Mr Carrington asked for the electricity to the property to be decommissioned, in other words that it be fully disconnected and the meter removed and his reason for seeking this was, in his words, that some time down the track the building was going to be demolished.

[16] There is therefore a logical connection between the damage, what was said to Meridian Energy but also what was contained in the 3 October email.

[17] The position advanced by the defence though is that from 3 October 2016, nothing further happened to excite Mr Carrington and cause him to go back to the property to burn it down some three or four months later. There is, however, some evidence that Mr Carrington’s ill-will towards the police and [Detective Sergeant 1] endured.

[18] For example he told [Detective Constable 2] on 21 March 2017 that [Detective Sergeant 1] was a “ruthless bitch” and he had. “never seen such dirty, underhanded tactics.”

[19] He also expressed ongoing dissatisfaction at the police generally including a personal comment about the police’s treatment of his son.

[20] His comments therefore suggest that his vexation throughout that period and after the arson had not abated.

[21] The next issue is proximity to the address at the time of the fire, or in connection with the fire. There is no doubt that Mr Carrington was in Woodville on the morning of 1 February 2017. At that time he lived in Gisborne. His vehicle was seen and accepted by him as having been seen on CCTV footage in Woodville that morning travelling around various streets, including driving down streets that would have conveyed him towards his previous address where the fire occurred.

[22] The CCTV footage clearly shows the make, model and colour of the vehicle at the time; a red Mitsubishi Challenger SUV type vehicle. It shows the clothing of the driver, at least to the extent that the driver had a distinctive white stripe on an otherwise dark top and a similar top was found at Mr Carrington’s house when it was subsequently searched, but aside from anything else, Mr Carrington admitted in an email to [Detective Constable 2] on 18 March 2018, that is exhibit 10, that he was the person driving that vehicle in Woodville as seen in the footage.

[23] That, of course, places Mr Carrington in Woodville. His property was one kilometre, or thereabouts, away from the centre of town in a semi-rural area as one drives south from Woodville on State Highway 2.

[24] The prosecution case however, is that Mr Carrington was seen at the property that morning. In this regard the prosecution relies on the evidence of [witness 1]. That morning he travelled from Woodville to Pahiatua to cut firewood for his landlord. He was familiar with the road between Woodville and Pahiatua and also familiar with Mr Carrington’s property. He referred, for example, to the presence at the property of a

veranda and also the presence of a number of busses, both of which were distinct ive features of this property.

[25] [Witness 1] was an independent witness. He did not know Mr Carrington, had no particular interest in the matter.

[26] He said he drove south from Woodville, was stopped due to roadworks in a position which gave him a view down Mr Carrington’s driveway and in that position noted a vehicle in the driveway.

[27] Given his description of the vehicle, in other words what parts of it he saw, which was the front and the side of a vehicle, the vehicle was facing towards the road on the driveway, in other words facing [witness 1] who was in traffic on the other side of the road.

[28] [Witness 1] saw a vehicle that he described as a red Mitsubishi Pajero and it was a Mitsubishi SUV that had grey trim around the bottom of the doors.

[29] In his evidence he did not, to my mind, exaggerate his recollection. For example he conceded that while he could see the vehicle had a sole occupant – that was the driver – he could not otherwise describe that person, including he could not describe their gender. To my mind he frankly acknowledged the limitations of what he observed.

[30] He saw this vehicle from a distance of about 10-15 metres.

[31] He had a reason for remembering the vehicle because a couple of hours later when he drove back from Pahiatua, he noticed that the building on that property had burnt down, fire engines were in attendance and therefore he had reason within about three hours or thereabouts to recall what he had seen in that driveway.

[32] [Witness 1]’s evidence was possibly inconsistent with an earlier statement he gave as to whether the vehicle he saw was moving or not. It seems in his statement he described the vehicle as driving out of the driveway as if to turn left towards Woodville, whereas in his evidence he said the vehicle was stationary.

[33] There was also some evidence from [Detective Constable 3] who spoke with the road crew who were operating the stop/go sign in relation to the roadworks on that section of road and there was some suggestion the stop/go sign was further down than indicated by [witness 1] at the time [Detective Constable 3] spoke with the roading crew.

[34] Neither of those features cause me to doubt [witness 1]’s description of the vehicle. Whether or not the vehicle was moving or stationary, to my mind, does not affect whether or not he has accurately described the vehicle that he saw.

[35] Secondly, whether the stop/go sign was further down the road than [witness 1] indicated, does not affect his evidence which is logical that he was stopped at around that point in a queue of traffic or line of traffic, if indeed the stop/go sign remained in the same place in the same set of roadworks. The simple fact is he was stopped in a queue of traffic in the vicinity of Mr Carrington’s address and saw a vehicle in the driveway, stationary or moving, which he described as a red Mitsubishi Pajero with grey trim around the bottom of the doors.

[36] It is something of a coincidence then that he happened to described, without otherwise knowing Mr Carrington, and having no interest in the case, a vehicle which closely matches the description of the defendant’s vehicle, the defendant of course being associated with that property, at a time when the defendant was in Woodville.

[37] I say this is an incredible coincidence, in other words, a coincidence that lacks credibility as a coincidence that someone other than the defendant was at his former property in a vehicle closely matching the description of the defendant’s vehicle in identifiable particulars, which is the make and model of the car, its colour and in particular the grey trim when the defendant was actually in that exact vehicle in Woodville. Plainly and obviously [witness 1] saw the defendant at his address when he was passing on State Highway 2.

[38] Thirdly, was the fire deliberately lit?

[39] The conclusion of [the fire investigator], was that the fire was deliberately lit although he added a rider, which is that a firm conclusion would also have required an analysis of samples taken by the police at what he identified as being the origin of the fire.

[40] When he was further taxed about this in cross-examination however, he held firm to his view that the fire was deliberately lit.

[41] I understand his evidence and the reason for his view as being the following.

[42] Firstly, the origin of the fire as identified by him was inside the building against a far wall from the entrance of the building in a workshop area. In that position someone would have had to have gone into the building and over to the far wall and far corner in order to have caused the ignition.

[43] Secondly, he excluded other sources, for example there was no electricity to the building at the time, it could not have been down to electrical fault.

[44] Thirdly, on his evidence there were at least two separate fires, one inside the building and secondly in a washing machine, which according to his report was about 10 metres away from the building and on his evidence unlikely to be associated with the main fire.

[45] Finally, he based his conclusion on there being no other explanation so that as a matter of logic the fire to his mind was deliberately lit.

[46] His conclusion had been bolstered in chief by what he thought was also that the chain across the access way had been cut and by that he was inferring that a person had obtained access by cutting the chain. The evidence seems to establish however that the chain was likely to have been cut by attending fire staff when they attended the property to put the fire out on 1 February.

[47] I note at this point however that even without the chain being cut, it seems that vehicles were able to be driven over the chain because of how low it was to the ground

and that a waratah holding the chain appeared to have been bent over and here I refer to the evidence of [Detective Constable 4].

[48] It seems then that the defendant on this analysis was at the property that morning before the fire. But at this point I pause because that is not the complete story, particularly in assessing matters of proof beyond reasonable doubt.

[49] The first thing I want to talk about beyond analysis of those three main issues raised by the Crown is timings.

[50] Firstly, whether or not the evidence gives a reliable timing at which [witness 1] saw the defendant at his property. [Detective Constable 3], when reviewing CCTV footage regarded the cameras in Woodville as being inaccurate, some by 21 minut es and some by 25 minutes or thereabouts. The times that are therefore shown in the captions of that CCTV footage in the photograph booklet exhibit 6 are therefore based on his interpretation of the time differences in Woodville when he viewed that footage six weeks later. So it is the time difference he observed six weeks after the fire when he reviewed or retrieved the footage.

[51] At that time he also reviewed footage from CCTV cameras in Dannevirke. His conclusion was that the Dannevirke cameras that he looked at some six weeks after the fire were correct.

[52] Coming firstly to the Woodville cameras. They were placed at various stages along the main road of Woodville known as Vogel Street. They were given names which were associated generally with either what they saw or the business on which they were located.

[53] I refer particularly to the camera which showed a [shop] called [business 1 name removed] which showed a view looking in a westerly direction down Vogel Street.

[54] And I also refer to a camera placed on a business known as [business 2 name removed] which showed a view of the intersection of Vogel Street and Ormond Street

and importantly has a view in a southerly direction down Ormond Street in the direction where the defendant’s property was situated.

[55] The most reliable timing on the day, to my mind, comes from the [service station] footage also obtained by the police and viewed by [Detective Constable 3].

[56] Image 19 from photograph booklet exhibit 6 shows a date and timestamp of a transaction which is placed on the CCTV footage every time there is a till transaction in Caltex. [Detective Constable 3] observed that the time shown in the overlaid date and timestamp when the till was being used appeared correct to him and it makes sense that in a business transaction such as the purchase of petrol, a correct date and timestamp would be applied to record the specifics of that transaction for later reference.

[57] Image 19 is an image of [witness 1] buying petrol at the [service station] in Woodville before he then travelled through Woodville onto State Highway 2 and past Mr Carrington’s property. That sale of petrol to [witness 1] occurred on 1 February at

11.27 am.

[58] Image 21, as identified by [Detective Constable 3], is of [witness 1]’s vehicle leaving from the pump outside the service station approximately one minute later. This assists in correctly fixing the time for the [business 1] camera shown in image 14 that shows [witness 1]’s vehicle after he had left the [service station] driving in an easterly direction down Vogel Street before he would later turn into Ross Street and make his way down to State Highway 2.

[59] The time shown on the CCTV camera in image 14 is 11.46 am. It should read around 11.28 am, a difference of 18 minutes.

[60] On [witness 1]’s evidence, he travelled along Vogel Street and according to these times would have been on Vogel Street at about 11.28 am, down Ross Street, onto Station Street and then on to Woodville Road, also known as State Highway 2, and proceeded out of Woodville past Mr Carrington’s former property.

[61] The evidence establishes therefore that [witness 1] saw Mr Carrington and his car after 11.30 am. How long afterwards is not clearly established in the evidence but as I say, property is about one kilometre away from the centre of Woodville according to the evidence.

[62] This is where the Dannevirke camera becomes important. If the police analysis of that camera had been correct then Mr Carrington having left Woodville and travelling towards Napier entered Dannevirke as shown in image 22 and exhibit 6 at

12.12 pm on 1 February.

[63] The accepted evidence is that the distance between Woodville and Dannevirke is 27 kilometres and that takes roughly 20 to 21 minutes to drive in general terms although I note that mathematically at 100 kilometres per hour it is just over 16 minutes.

[64] The fire was first noticed some time after midday and I will come to the more precise timings of that but on the Dannevirke camera time which the police thought was correct, that would have placed Mr Carrington at his property or at least in Woodville roughly 20 minutes or thereabouts prior to the fire being noticed.

[65] The defence, however, demonstrated that the Dannevirke camera could not be correct.

[66] Exhibit B which was ultimately accepted by [Detective Constable 3] showed three vehicles which appeared in both the Woodville and Dannevirke footage. In the first instance, a blue car with a trailer, which for a roughly 21 minute journey on the police calculations would have taken 42 minutes which meant that the car would have had to have stopped somewhere along the way allowing for a roughly 21 minute journey and bearing in mind what I have said about the [business 1] camera, the time when that car left past the [business 1] camera in Woodville of 11.36 which should have been around 11.18, should have arrived in Dannevirke at about 11.39 if it had been a journey with no stops, which would suggest on that footage if that car had not stopped the Dannevirke clock was also out by about 18 minutes.

[67] The second vehicle shown in exhibit B is an Office Relocations Truck, it went past the [business 1] camera at 11.52 in Woodville which should have been around 11.34, arrived on the Dannevirke clock at 12.14 but again allowing for a roughly 21 minute trip with no stops, arrival should have been around 11.55 and that would be about a 19 minute difference with the Dannevirke clock.

[68] Thirdly was a yellow tanker which passed the Dannevirke camera at 11.09 and passed the Woodville [business 1] camera at 11.25, 16 minute journey, according to those two cameras taken on their face, but demonstrably given that the [business 1] camera was about 18 minutes out, it cannot have left Dannevirke at 11.09 and arrived at Woodville at 11.07.

[69] If the truck had been travelling faster in that direction and it was a roughly a 16 minute journey, that would put the Dannevirke camera out by potentially up to 22 minutes and possibly even 23 minutes.

[70] All I can really conclude is that the Dannevirke camera was inaccurate against the times shown in the stills taken from the Dannevirke footage. On the defence analysis the time difference could have been anywhere between 18 and 23 minutes.

[71] That means that Mr Carrington’s arrival in Dannevirke shown in the camera as being 12.12 pm was actually closer to somewhere between 11.50 and 11.55 am. I note that a time of 11.50 to 11.55 am is consistent with and accords with the evidence of [witness 1], who, on the [service station] camera, coupled with the [business 1] camera was outside Mr Carrington’s former address soon after 11.30 am which would have allowed Mr Carrington sufficient time to travel from Woodville to Dannevirke and arrive by 11.50 to 11.55 am.

[72] The question then is how reliable is the evidence as to when this fire started or at least was noticed? The defendant in exhibit B, but also in footage played to [the fire inspector], showed the view from the [business 2]’s camera, facing down Ormond Street, where in a still produced as part of exhibit B, timed at 12.30 pm showed the first sign of smoke down Ormond Street in the direction of Mr Carrington’s property.

[73] According to police calculations based on [Detective Constable 3]’s analysis of the Woodville CCTV camera six weeks later, the 12.30 pm time in that still photograph should be 12.09 pm. But as I have discussed in relation to the [business 1] camera, a more reliable time difference at least with the [business 1] camera was about 18 minutes rather than 21 minutes at the time. I do not know whether the [business 2]’s camera was inaccurate to the same extent, but based on the defence photograph from the CCTV footage, [Detective Constable 3]’s evidence, the earliest that the smoke appears, at least in that footage is at 12.09 pm but if, for example the time difference was the same as the [business 1] camera then it would have been closer to 12.12 pm.

[74] The latter time accords more closely with the fire investigation report where the first 111 call received by the police was at 12.13 pm.

[75] The best I can conclude therefore is that the fire was at least noticed by others around 12.12, 12.13 pm.

[76] If the defendant was in his driveway or in the driveway of his former property soon after 11.30 am, then the nearest time that he is put to when that fire was noticed, is about 40 to 45 minutes.

[77] A [neighbour] gave evidence. I consider her evidence does not really take the matter any further. She initially smelled smoke but did not look at the fire until she heard fire appliances go past. At that point she looked the 400 metres or so from her property over to Mr Carrington’s former property and saw a fireball above the trees and the house well alight. The fire appliances first arrived at this address at 12.22 pm.

[78] She estimated that it was about 10 minutes from when she first smelled smoke to when she heard the fire appliances and looked and saw the house burning. Her estimate seems quite accurate against the first 111 call received at 12.13 and the first fire appliance arriving roughly nine minutes later.

[79] But this also means that I cannot place any reliance on [the fire inspector]’s evidence at page 90 of the notes of evidence in the way urged upon me by defence

counsel. The question to [the fire inspector] was put to him on the basis that [the neighbour] saw the fireball shortly after smelling smoke. [The fire inspector]’s answer, given how that question was asked was that if it became a fireball immediate ly, it would indicate introduction of a flammable product other than timber or build ing products. However [the neighbour]’s evidence was not to that effect. Her seeing the fireball and the house fully engulfed was not immediate. It was some 10 minutes or so after she first smelled smoke.

[80] [The fire inspector]’s evidence at page 90 line 6 is more relevant when he said that the smoke shown to him in the CCTV footage which, as I have said, would have been somewhere between 12.09 and 12.12 pm, did not allow him to comment on what stage the fire had reached by that time. In essence he was saying it would have been speculation or guesswork to have done so.

[81] Another issue also arises, and it is relevant to timing, but it is also relevant to the issue of whether the fire was deliberately lit and that is the lack of analysis of samples from the property. The police were directed to take samples from around the area identified as the origin of the fire inside the building. [Detective Constable 3] did so but the samples were never sent for analysis.

[82] What this means is that we do not have evidence one way or another, whether accelerant was used, or if it was, what type of accelerant was used. A by-product of that is that a reliable estimate of time that the fire might take to spread from when it was lit is also not available. This is a gap in the evidence that could have been filled by analysis. I say it “could” have been filled because, of course, analysis may or may not have taken the matter further.

[83] It is simply, as I sit, a gap in the available evidence about the mechanism used to start the fire.

[84] I also note at this time the defendant, to the extent that he gave explanatio ns afterwards when spoken to by [Detective Constable 2], put himself at Tutira at about

2.15 pm but also he said that he was not there, as in, in Woodville, at 12.15 or at least

12.15 to 12.30. Both of those statements are likely to be true but that does not advance the matter.

[85] The defendant, of course, did not give evidence, which is simply consistent with the fact that he did not have the burden of proof.

[86] So, standing back from this analysis, the question is whether I can logica lly and safely conclude to the point that I am sure that Mr Carrington lit the fire on the basis of the existing evidence. This requires the drawing of an inference from established facts. If other reasonable possibilities remain, then the conclusion would not be safe and I could not be sure.

[87] Here, the proven facts are, firstly, Mr Carrington’s property was taken from him, albeit ultimately with his consent under the asset forfeiture process. Secondly, Mr Carrington had a high degree of animus to the police in general over this but more particularly towards the asset forfeiture officer. The evidence is that while Mr Carrington had been observed to have flashes of aggression with others that quickly abated, his vexation towards the police and the asset forfeiture officer endured well beyond his having vacated the premises in September or October 2016 includ ing after the fire in February 2017. Thirdly, Mr Carrington told Meridian Energy in September 2016 that the building on the property would be demolished some time down the track. Fourthly, Mr Carrington was at the property as observed by [witness 1] in Woodville 40 to 45 minutes before the fire was noticed by others.

[88] I note again that at the time Mr Carrington lived in Gisborne.

[89] Fifthly, I accept that the fire was deliberately lit for the reasons explained by [the fire investigator] although due to the lack of forensic analysis and as conceded by [the fire investigator] the mechanism of how that occurred has not been established.

[90] So that then leaves this question. Is it reasonably possible that someone else, coincidentally visited the property in that 40 to 45 minutes and set fire to the property and did so after the person who demonstrably had the motive and had said the build ing would be demolished had been there?

[91] I find that that would be an incredible coincidence, in other words a coincidence that lacks credibility. To put it another way I do not regard that as a reasonable possibility. In this case the evidence, although circumstantial convincingl y establishes that it was the defendant who lit the fire and I am sure of that.

[92] I find the charge proved.

[93] I propose to remand Mr Carrington on bail and seek appendices.

[94] Pre-sentence report with electronic appendices, reparation report. Ironically there may not be that much reparation.

[95] Mr Carrington you are convicted of this charge, you are remanded on your existing bail conditions, back here please for sentence, 3 May at 2.15 pm.

[96] I am adding one bail condition and that is to report to Community Probation Service in Gisborne, by 4.00 pm on Wednesday 4 April. It gives you Easter to get back up there and get yourself sorted out so you can get in there, and thereafter as directed. So you will go to an initial appointment, they will give you another time for a more detailed chat.

[97] I have asked for a pre-sentence report with electronic sentencing appendices, in other words to consider whether an electronic sentence should be appropriate, without that indicating to you that that is the appropriate outcome. I do not know what the appropriate outcome is, I will wait until I hear from your lawyer and see what your report says about you.

[98] I have also asked for a reparation report. I would have thought relevant to the issue of reparation would be the extent to which there was a discount in sentence, if any, for the forfeiture of the property. So I do not know, that is normally calculated.

Judge L C Rowe

District Court Judge

Date of authentication: 29/08/2018

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.