The magistrate presiding over the hearing for the man accused of causing the Aberfeldy bushfire has expressed concerns the matter had become a case of “duelling experts”, in the absence of hard evidence.
A summary hearing for Grahame Ernest Code, who has been accused of causing the 85,000 hectare blaze on 17 January, has continued in the Latrobe Valley Magistrates Court over the past two days.
While Code intends to plead guilty to lighting a fire in an open area without written authority in a fire protected area during a prohibited period, he has contested a charge of leaving a fire that was lit to his knowledge by his agent, without previously taking all reasonable precaution to prevent it spreading.
Code has admitted to burning off two boxes of school papers at a fire pit on his property on the morning of the bushfire, however Magistrate Peter Mellas reminded the prosecution it needed to prove “beyond reasonable doubt” the burn off had in fact sparked a blaze which started some 20 metres away in a tree cluster later that morning.
On Tuesday prosecution witness Leslie Vearing, a Department of Sustainability and Environment state fire and training investigation coordinator, said he had been told by observers fire had travelled in a southerly direction to the tree cluster from the direction of the fire pit on the Code family’s property.
However this was challenged under cross-examination by defence barrister John Desmond, who paraphrased other observers as noting the fire had in fact spread in the opposite direction, towards the fire pit, indicating the tree cluster fire could have spotted from another fire source.
In a running appraisal of the prosecution’s case on Tuesday, Mr Mellas said it was lacking of first hand expert data and analysis, adding without adequate evidence, the trial could “come down to whose (expert had) the biggest qualifications” in determining whether the blaze in fact spread from Mr Code’s property.
“If I’m satisfied beyond reasonable doubt Code didn’t do enough in relation to (extinguish the burn off), the next thing I have to be satisfied beyond reasonable doubt is that the fire spread,” Mr Mellas said.
“We know there was a fire (on Code’s property), and we know there was a bigger fire… it’s a case of whether the fire started up and jumped out of the fire pit and jumped over the road, and spread up the hill, and not the other way round.
“The crucial issue is which way that fire travelled; ultimately I’m going to be confronted by the questions as to whether the prosecution has excluded all other possible explanations for the fire appearing on that hill… but (without expert witnesses and evidence) it becomes an opinion or guessing exercise.”
In exploring the defence’s argument several fires in the vicinity of the initial burn off site could have spotted from back burning or aerial ignitions in the area, Mr Desmond called on fire expert David Packham yesterday to examine aerial photographs taken on the first day of the fire.
“My opinion is these fires were deliberately applied from permanganate incendiaries or a drip torch,” Mr Packham said.
“Firstly these fires are in the path of country which is very difficult to get to on foot… and due to the significant distance between the blazes, I could not see they were emitting from other natural fires.
“And they were upwind, to the north of the main fire at the time. A fire cannot spot upwind.”
Mr Packham also criticised Mr Vearing’s evidence the fire had spread through the tree cluster 20 metres from the fire pit in a southerly direction.
“I disagree with Vearing for the following reasons: while it’s possible the fire could’ve spread southerly because of a number of indicators, these indicators were not conclusive as he suggested,” Mr Packham said.
“There were no clear indicators determining the fire’s spread or direction in any way; there was unburnt grass adjacent to it, but there was no clear indication whether the fire had travelled south to the clump of trees from the pit – or north to the pit (in the opposite direction).”
Under cross examination, the prosecution criticised a last-minute correction by Mr Packham to an expert report he compiled in November, which he amended shortly before the defence team submitted it as evidence in the summary hearing.
The report had initially detailed an assumption fuel loads within the surrounding scrub area were about 10 tonnes per hectare, however yesterday in court Mr Packham changed it to 19 tonnes per hectare, thereby increasing the fire’s intensity and ability to spot long distances.
Prosecutor Daryl Brown labelled the omissions as “quite a serious mistake”.
Mr Packham told the court he moved to correct the mistake a few weeks ago when he was reviewing his fuel dynamic references.
On Tuesday the court heard from the incident controller on the day of the fire who categorically stated no aerial ignition had occurred on 17 December, while Mr Vearing told the court meteorological data had ruled out the possibility of fires being caused by lightning strike.
The hearing is set to continue today, with both sides expected to commence their closing statements, before Mr Mellas moves to decide on the remaining charge.
A ‘whisp’ from the ashes
The man who burnt off rubbish the morning the Aberfeldy bushfire started told police he noticed a “whisp” of smoke emitting from the ashes before fires broke out around the property, the Latrobe Valley Magistrates Court has heard.
Graham Ernest Code, who is facing two charges in relation to burning off during a fire danger period on 17 January this year, underwent cross examination along with his wife and 14 year-old son, Lynda and Ian Code, as part of a summary hearing on Tuesday.
The court heard after letting two boxes of old school papers burn down in a fire pit on the property, which was afterwards sprayed down with a hose, Ian Code, then 13 years old, was left to monitor the fire pit at half hour intervals.
In a thorough examination of a series of police interviews with Code, made during the days and weeks after 17 January, prosecutor Daryl Brown highlighted numerous instances in which Code told police he noticed smoke emitting from the burn off pit after it had been hosed down.
“Wouldn’t smoke coming from the fire indicate there was still fire smouldering underneath the paper? A gust of wind could have come and taken an ember away,” Mr Brown said in court on Tuesday.
“Maybe there was a little bit of smoke mixed in (with the steam) – it was 11 months ago, I don’t recollect,” Code replied.
“(The interview) was two weeks on and we had the arson squad breathing down our necks; I had a lot on my mind.”
In a video shown to the court on Tuesday, detailing an on site field interview between the police arson squad and Code conducted on 19 January, taken two days after the fire started, Code acknowledged the possibility a fire which started 20 metres away from the pit later in the morning could have been caused by the burnoff.
Under examination in court yesterday, Ian Code said the fire was “entirely out” after he dampened it with the hose, as he had felt it with his hand.
