UPDATE:
The major charge against the man accused of causing the Aberfeldy bushfire on 17 January has been dropped.
Grahame Ernest Code was charged with recklessly and without lawful excuse causing a bushfire, but the charge was dropped on Thursday morning, the fourth day of a committal hearing in the Latrobe Valley Magistrates’ Court.
Code faced a further six summary charges, which have now been reduced to two.
The court heard he intends to plead guilty to lighting a fire in the open area without written authority in a fire protected area during a prohibited period.
He will contest the charge of leaving a fire that was lit to his knowledge by his agent without previously taking all reasonable precaution to prevent spreading.
The hearing is expected to continue for the rest of this week and on 17 and 18 December.
The Aberfeldy fire burned more than 85,000 hectares, spreading to Seaton and claiming a man’s life.
Origin unknown, court hears
On Wednesday the court heard a VicForests fire investigator could not identify the point of origin of the Aberfeldy bushfire when he visited the Code property the day the fire started on 17 January.
Defence barrister John Desmond yesterday argued there were potentially three separate fires on the day, possibly “the work of a serial arsonist”.
The court heard the Code family had conducted a burn-off on their property on 17 January to dispose of papers, which their 13 year-old son checked half-hourly.
Mr Desmond said the fire had been doused out and at 11.30am Code’s wife was alerted by her son after he “heard crackling and smoke”.
Mr Desmond told the court Mrs Code went outside to discover a fire on their property 20 metres south-west from the fire pit they had burnt off in and Code immediately phoned authorities to report the fire. Mr Desmond told the court the family worked to douse out the fire, which had started in “circumstances yet to be explored”, at which point Mrs Code saw a “giant plume” of smoke on a spur 1000 metres away.
VicForests officer Patrick Dowling said when he inspected the fire pit at Code’s property at 4.30pm it was cold and damp but he could not rule it out as the origin of the Aberfeldy fire.
Mr Dowling said he did not recall seeing a hose at the Code property which Mr Desmond said was used to fight the fire 20 metres from the pit, however, Mr Dowling said he saw a pump on the dam.
He told the court after failing to determine the pit as the point of origin of the fire during his first inspection, he was making his way back to the property the next day to further investigate when he was informed Victoria Police would be taking over the investigation.
Mr Desmond said there was a third fire on Jorgenson’s Track.
Mr Dowling said there was an equal possibility that fire and the fire on the spur were the result of spotting or human ignition.
He said he did not find an ignition point for the fire on the spur.
Mr Desmond told the court the then-Department of Sustainability and Environment’s “primary concern” was to protect the Thomson Dam and it conducted a 15 kilometre burnout from about 4.30pm on the day the fire started.
On Tuesday, a DSE field services officer defended his response to the fire, after Mr Desmond questioned why the DSE strike team had entered ‘asset protection mode’ rather than directly attacking the blaze.
The court heard Nick Shaw was in charge of a strike team of eight, arriving at a fire along Donnelys Creek Road, above the Code property at 12.25pm from Erica after being notified of the incident by his superior just before midday.
Mr Desmond questioned whether Mr Shaw knew the first report of a fire was made at 11.35am, to which he replied “no”.
Mr Shaw described the fire upon his arrival as 100m long, covering both sides of Donnelys Creek Road.
At 12.30pm Mr Shaw “made the decision to protect Code’s property”, the court heard.
Mr Desmond questioned why, when a large D7 bulldozer was provided to the strike team, it was not put in use, saying it was not the accused, rather fire authorities who were “reckless” in that they did not properly contain the fire.
He asked Mr Shaw whether he knew an offer of assistance had been made by the Country Fire Authority, but was declined, as the DSE was considered the lead agency. Mr Shaw said he was not aware of the offer.
Mr Shaw said getting the bulldozer into the area it was required would have been difficult and unsafe because of steep terrain and a three-metre side cut on the road.
“The fire was that far gone, that far established, you would not put a machine in for safety reasons… even with multiple machines, I wouldn’t put my team in danger,” Mr Shaw said.
He said putting a crew at the head of the fire would have risked lives and they did not have the resources or fire knowledge of where the top of the fire was.
“With the resources we had it (asset protection mode) was the safest option at the time,” he said.
He said a D4 dozer had earlier been used to put a containment line in ahead of the fire.
Mr Shaw told the court there was “not one single chance” his team could have supressed the fire with the resources they had.
The court heard the Aberfeldy area was not subject to a total fire ban on the day the fire started.
The hearing is expected to continue tomorrow before Magistrate Peter Mellas.
