Baghdadi v Regina - [2011] NSWCCA 234

Court of Criminal Appeal

New South Wales

Case Title: BAGHDADI v Regina

Medium Neutral Citation: [2011] NSWCCA 234

Hearing Date(s): 13 April 2011

Decision Date: 26 October 2011

Before: Campbell JA at [1]
RS Hulme J at [127]
Hoeben J at [128]

Decision:
(1) Extend the time for filing of a Notice of Intention to Appeal to and including 24 August 2009.
(2) Extend the time during which the Notice of Intention to Appeal has effect to and including 31 August 2010.
(3) Appeal allowed.
(4) Set aside each conviction in the court below.
(5) Remit the matter to the District Court for a new trial.
(6) Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the new trial has concluded.

Catchwords: EVIDENCE - Coincidence evidence - s 98 Evidence Act 1995 (as at 10 November 2008) - for events to be related events, the events must be substantially and relevantly similar; and that the circumstances in which the events occurred must be substantially similar

EVIDENCE - Coincidence evidence - where evidence of A is adduced to prove that because of the improbability of A and B occurring coincidentally, a person did B; and evidence of A also adduced to prove that because of the improbability of A and C occurring coincidentally, that person did C - consideration of similarities between B and C not relevant to whether evidence of A can be admitted as coincidence evidence concerning B or C

CRIMINAL LAW - Evidence - Coincidence evidence - s 101 Evidence Act 1995 - probative value of evidence must outweigh any prejudicial effect it may have on the defendant - whether trial judge applied test

EVIDENCE - Coincidence evidence - s 95 Evidence Act 1995 - where evidence inadmissible as coincidence evidence but admitted as circumstantial evidence, but where the probative value of the evidence as circumstantial evidence relied upon the same similarities as those identified in relation to coincidence evidence

APPEAL - s 6 Criminal Appeal Act 1912 - where applicable statute requires a range of questions to be addressed, it must be clear that in substance all questions have been considered - whether trial judge permitted evidence to be adduced without having satisfied statutory preconditions

EVIDENCE - Admissibility - Voir dire - decision made on basis of evidence expected to be given - whether unavailability of evidence expected to be given - whether possibility of miscarriage of justice arising from jury having had before them evidence that, as the facts ultimately unfolded, they should not have had

APPEAL - Practice and Procedure - Appeal against conviction - s 10(1) Criminal Appeal Act 1912 - notice of intention to appeal against conviction required within 28 days after conviction - need for evidence to justify grant of extension of time - court requires substantial reasons to be advanced before granting extension of time - prospects of success and significance of consequences if extension denied are relevant matters

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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baghdadi v Regina

Details

AGLC: BAGHDADI v Regina [2011] NSWCCA 234
Case: [2011] NSWCCA 234
Decision Date: 26 October 2011

CaseChat Overview and Summary

In the case of Baghdadi v Regina, the appellant contested his convictions for two robberies and associated charges. The central issue revolved around the admissibility of evidence of a carjacking in which the appellant was involved, as evidence of his involvement in the robberies. The Crown argued that the carjacking evidence was admissible both as coincidence evidence under s 98 of the Evidence Act 1995 and as circumstantial evidence. The court had to determine whether the trial judge correctly admitted this evidence and whether it met the statutory requirements for admissibility.

The legal issues before the court included whether the similarities between the carjacking and the robberies were sufficiently coincidental to warrant the admission of the carjacking evidence under s 98, and whether these similarities also supported the admissibility of the evidence as circumstantial evidence. The court needed to examine if the trial judge properly applied the statutory tests and whether the probative value of the evidence outweighed any prejudicial effect. Additionally, the court considered whether the trial judge had adequately addressed all required questions regarding the admissibility of the evidence.

The court held that the trial judge did not adequately consider the statutory preconditions for admitting coincidence evidence and whether the probative value of the evidence as circumstantial evidence relied upon the same similarities. The court found that the similarities between the carjacking and the robberies, while noted by the judge, did not meet the stringent requirements for coincidence evidence under s 98. The similarities were also relevant to the admissibility of the evidence as circumstantial evidence, but this did not justify the initial admission under s 98. The court concluded that the trial judge had not sufficiently considered the statutory tests and that there was a possibility of a miscarriage of justice due to the improper admission of the carjacking evidence.

The appeal against the conviction was dismissed, but the court quashed the convictions and ordered a retrial. The court found that the trial judge's failure to properly apply the statutory tests and consider the admissibility of the carjacking evidence under s 98 warranted a retrial to ensure a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HULME J HOEBEN J

There was no evidence about the nationality of the Appellant, what languages the Appellant could speak, whether the Appellant spoke with an accent and if so what type, or with what degree of facility he spoke English. There was no evidence that linked him with the address in Liverpool Road, Enfield at which the silver BMW was found. The Judge's Decision on the Voir Dire The judge noted that the Crown contended that the evidence of the carjacking was admissible both under s 98, and also as circumstantial evidence. He set out the principles concerning admissibility of coincidence evidence that Simpson J had stated in R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [139]. It was common ground on the appeal that Simpson J had correctly stated the relevant principles. The judge then set out what he described as the Crown's argument concerning circumstantial evidence. In that context he listed certain similarities between the first and second robberies, including: The involvement of the silver BMW in both of them, The robbery was undertaken at the close of business of the premises involved. The judge further noted that the stealing of the silver BMW just three hours before the first robbery provided grounds for an inference that it was stolen as part of the planning preparatory to the commission of the first robbery. The judge then listed more fully various similarities between the first and second robberies: "1. A silver BMW motor vehicle was used bearing the plates '4FRODO' in the first robbery but bearing stolen number plates in the second; 2. Shots were fired from a gun in both robberies; 3. There were multiple offenders involved in both robberies, apparently three, although in the second robbery only one witness sees a third person; 4. Only one offender in either robbery had a gun, other weapons not being used; 5. In the first and second robberies underlying counts 1 and 2, the offenders arrive at the close of the business they intended to rob; 6. In each robbery the offenders appear to know where the office of the premises is located." He also listed another factor, that he later discounted. The judge noted that it was not the Crown's case that the self same gun was used in the carjacking and the first and second robberies. The judge stated the Crown's argument as being: "... there are at least six relevant similarities which are coincidental between the first and second robberies and that, in turn, the stealing of the silver BMW motor vehicle in the carjacking which the accused was admittedly involved is relatively coincidental with the appearance of that same motor vehicle bearing the same numberplate as the one which was stolen in the first robbery, and of the silver BMW motor vehicle otherwise resembling that vehicle, although with stolen numberplates, seen at the second robbery underlying count 2, so that the Crown ought be permitted to introduce evidence of the carjacking as evidence of the accused's involvement in the first and second robberies of an admittedly coincidental kind within s 98, and separately as evidence in support [of] its circumstantial evidence case."

Ratio Decidendi

Legal Principle Established

Established by: HULME J, HOEBEN J

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Case Title:	BAGHDADI v Regina
Medium Neutral Citation:	[2011] NSWCCA 234
Hearing Date(s):	13 April 2011
Decision Date:	26 October 2011
Before:	Campbell JA at [1] RS Hulme J at [127] Hoeben J at [128]
Decision:	(1) Extend the time for filing of a Notice of Intention to Appeal to and including 24 August 2009. (2) Extend the time during which the Notice of Intention to Appeal has effect to and including 31 August 2010. (3) Appeal allowed. (4) Set aside each conviction in the court below. (5) Remit the matter to the District Court for a new trial. (6) Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the new trial has concluded.
Catchwords:	EVIDENCE - Coincidence evidence - s 98 Evidence Act 1995 (as at 10 November 2008) - for events to be related events, the events must be substantially and relevantly similar; and that the circumstances in which the events occurred must be substantially similar EVIDENCE - Coincidence evidence - where evidence of A is adduced to prove that because of the improbability of A and B occurring coincidentally, a person did B; and evidence of A also adduced to prove that because of the improbability of A and C occurring coincidentally, that person did C - consideration of similarities between B and C not relevant to whether evidence of A can be admitted as coincidence evidence concerning B or C CRIMINAL LAW - Evidence - Coincidence evidence - s 101 Evidence Act 1995 - probative value of evidence must outweigh any prejudicial effect it may have on the defendant - whether trial judge applied test EVIDENCE - Coincidence evidence - s 95 Evidence Act 1995 - where evidence inadmissible as coincidence evidence but admitted as circumstantial evidence, but where the probative value of the evidence as circumstantial evidence relied upon the same similarities as those identified in relation to coincidence evidence APPEAL - s 6 Criminal Appeal Act 1912 - where applicable statute requires a range of questions to be addressed, it must be clear that in substance all questions have been considered - whether trial judge permitted evidence to be adduced without having satisfied statutory preconditions EVIDENCE - Admissibility - Voir dire - decision made on basis of evidence expected to be given - whether unavailability of evidence expected to be given - whether possibility of miscarriage of justice arising from jury having had before them evidence that, as the facts ultimately unfolded, they should not have had APPEAL - Practice and Procedure - Appeal against conviction - s 10(1) Criminal Appeal Act 1912 - notice of intention to appeal against conviction required within 28 days after conviction - need for evidence to justify grant of extension of time - court requires substantial reasons to be advanced before granting extension of time - prospects of success and significance of consequences if extension denied are relevant matters
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