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Byron Shire
March 7, 2021

Taxpayers to foot $300K damage bill after Goonellabah man found not guilty of arson

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A Goonellabah man has been found not guilty of recklessly causing a fire.
A Goonellabah man has been found not guilty of recklessly causing a fire.

Taxpayers have been left with a repair bill in excess of $300,000 after a Goonellabah man was found not guilty of damaging a Housing Commission residence in September 2016 by flicking his cigarettes across the room.

Benjamin James Green appeared in Lismore Local Court on Friday facing charges of damaging a property by fire causing more than $15,000 damage, assault occasioning actual bodily harm and common assault.

The charges related to a fire at an Eggins Place residence on September 23, and an incident when Mr Green punched his former partner in the head while she was driving.

Just after midnight on September 23, Mr Green was smoking in his bedroom and flicking his cigarettes across the room, which he told police he had put out first.

‘I wait until the cigarettes go out and then I throw them on the ground,’ Mr Grren told police on the night of the fire.

‘I was doing this tonight in the bedroom.’

Personal papers of Mr Green’s caught alight about 12.20 am and despite his efforts he was unable to put out the blaze, which was growing.

Emergency services attended and Mr Green and his former partner were taken to Lismore police station where they both provided statements about the incident.

The following afternoon, Mr Green’s partner returned to Lismore police station and told them she had lied in the previous day’s statement.

‘I lied to you in my statement yesterday, he did it,’ Mr Green’s former partner allegedly told police.

‘Ben did it flicking his f**king cigarettes.’

Mr Green was arrested and taken to Lismore police station on September 25 following the assault of his partner.

He was interviewed about the fire, charged and granted conditional bail.

After previously entering a not guilty plea to damaging property by fire, Mr Green faced a hearing before Magistrate David Heilpern on Friday.

Police prosecutor Sergeant Checkley had previously tendered the statements of 12 people about the fire including neighbours, Mr Green’s former partner, police, a paramedic and firefighters, court documents revealed.

A female witness, who can’t be named for legal reasons, was one of several people who claimed Mr Green admitted flicking the cigarette across the room that started the fire.

An expert report on the fire prepared by Mr Salmon, which showed the blaze started from a cigarette in Mr Green’s personal papers, was tendered as evidence by his solicitor Phillip Crick.

The conclusion of Mr Salmon was the ignition point of the fire was Mr Green’s personal papers in his bedroom.

Mr Crick submitted to Magistrate David Heilpern the hypothesis that the fire was caused by an unknown person who smashed the window of the bedroom and started the fire by unknown means.

But Sergeant Checkley said Mr Crick’s hypothesis was unreasonable as the bedroom window was not broken before the fire started, there was no evidence of anyone hearing the bedroom window break on the night of the fire, and the forensic evidence proved the fire was started by a cigarette.

He said several witnesses claim Mr Green told them he started the fire by flicking cigarettes across the room,

‘Given that all the forensic material in the case is consistent with the prosecution case, the court could be satisfied beyond reasonable doubt that the fire was started by the accused flicking cigarette butts on that evening,’ Sgt Checkley said.

Mr Crick said the defence relied on a conclusion in Mr Salmon’s fire report that it was possible it (the fire) was lit from outside the house.

He said Mr Green denied saying he tossed the cigarette butts that night, he tried to put out the blaze, and police made errors in his statement which changed the entire meaning.

‘If your honour accepts that the fire was lit by Mr Green flicking his cigarettes, I would urge your honour to closely consider the element of recklessness,’ Mr Crick said.

Magistrate David Heilpern said the main issue in the hearing was whether the prosecution had proved Mr Green acted recklessly.

He said if Mr Green waited until the cigarettes had gone out that was not reckless behaviour.

‘The defendant at this time had a raging ice habit and was drinking,’ Mr Heilpern said.

‘I’m satisfied the fire did start due to a lit cigarette flicked across the bedroom.

‘That is the overwhelming weight of the evidence.’

The hypothesis by the defence that the fire was ‘a circumstantial case and was lit by someone outside the residence,’ was rejected by Mr Heilpern.

He said evidence previously given by Mr Green’s former partner would not be relied on.

‘Her evidence cannot be relied on as being cogent or safe, even when it is cooberated by other witnesses,’ Mr Heilpern said.

Mr Heilpern then dismissed the charge of damaging property by fire against Mr Green.

‘The prosecution has not succeeded in proving beyond resonable doubt Mr Green was reckless in his actions that led to the fire and not just negligent,’ he said.

On the charges of assault occasioning actual bodily harm and common assault, Mr Heilpern ordered Mr Green to serve a nine month suspended sentence.

During the nine month sentence, Mr Green will be closely supervised by Community Corrections.

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  1. What do they pay Magistrates for This is no penalty for being Careless.
    I bet The Housing dept gave them another home to trash.
    Why would any one flick a cigarette but on the floor of any home has me beet.
    Needs time or be forced to pay some penalty for Stupidity.

  2. Another fail for Heilpern. The thugs and crooks must love it when they hear who’s hearing their case. This guy’s a public liability and should be stood down.

  3. What a disgusting outcome. This Magistrate [has not done his] duty.
    Mr Green needs to be placed into a facility to heal him of his Habits and not released until he is healed.
    It is time for us to deal with the real problems of these unfortunate people and help to turn them around.
    Never the less the Magistrate dealt with this matter extremely badly. Our whole Judicial system and the relevant forms of punishment are also in question here. We need to be looking at rehabilitation of this form of … individual. There are now many, Mr Green’s in our society.
    Look to our Scandinavian Cousins and take a leaf from their book and perhaps our society will have a chance to be released from what has become a very dangerous decline within it’s fabric .
    I [have criticised the magistrate]. But overall it is our system which is at fault.


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