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