Ceissman v R

[2015] NSWCCA 74

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ceissman v R [2015] NSWCCA 74

Hearing dates:

3 March 2015

Decision date:

30 April 2015

Before:

Leeming JA; Simpson J; Schmidt J

Decision:

(1) To the extent necessary, extend time to appeal and to permit reliance on the grounds of appeal identified in the notice of appeal filed 9 October 2013 and the grounds of appeal dated 10 September 2014.

(2) To the extent necessary, grant leave to appeal in respect of grounds 1, 2, 3, 5 and 6 of the notice of appeal filed 9 October 2013 and grounds 1, 3 and 4 of the grounds of appeal dated 10 September 2014, and otherwise refuse leave to appeal.

(3) Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against conviction - armed robbery - series of robberies of bowling clubs in western Sydney by masked men in a six week period - earlier decision of Court of Criminal Appeal admitting evidence of each robbery as coincidence evidence in respect of the other robberies - whether probative value of coincidence substantially outweighed its prejudicial effect - Evidence Act 1995 (NSW), s 101 - whether error in admitting DNA evidence, as to which no objection was taken at trial - whether error in Crown not asking witness who gave a general description of appellant whether he could be identified - whether jury's verdict unreasonable or unjust - appeal dismissed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5F, 6
Criminal Appeal Rules, r 4
Evidence Act 1995 (NSW), ss 98, 101, 114

Cases Cited:

Aslett v R [2009] NSWCCA 188
BCM v The Queen [2013] HCA 48; 88 ALJR 101
Libke v The Queen [2007] HCA 30; 230 CLR 559
R v Ceissman [2010] NSWCCA 50
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
SKA v The Queen [2011] HCA 13; 243 CLR 400

Category:

Principal judgment

Parties:

Adam Stephen Ceissman (Applicant)
Crown (Respondent)

Representation:

Counsel:
Applicant (In person)
T Smith (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/8452

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

20 April 2010

Before:

Flannery DCJ

File Number(s):

2009/8452

Judgment

1. THE COURT:  Mr Adam Ceissman seeks leave to appeal, out of time, against his conviction on counts 8-22 of an indictment alleging 22 offences arising out of a series of robberies between 14 July and 28 August 2008 at bowling clubs and smash repairers in western Sydney. Mr Ceissman was tried before a judge and jury over 16 days in March and April 2010. He was represented at trial, by experienced counsel, but was unrepresented on appeal. The jury acquitted him of the offences relating to the first two bowling clubs (which were at Campbelltown and Ashbury), but convicted him of offences relating to the remaining clubs (at Moorefield, Canterbury and Mount Lewis).

2. For the reasons which follow, Mr Ceissman’s convictions are not attended by any of the errors he raises, and his appeal must be dismissed.

The 2010 Crown appeal

3. There has already been a Crown appeal under ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 (NSW) in this matter, which overlaps with one of the grounds of appeal, and which is best addressed immediately.

4. The primary judge acceded to Mr Ceissman’s pre-trial application in March 2010 to sever the 22 counts in the indictment, so as to necessitate five separate trials, and rejected the Crown’s application to introduce tendency and coincidence evidence in the trial. The appeal was allowed:  R v Ceissman [2010] NSWCCA 50 (Ceissman). A convenient summary of the background is contained in [3]-[5] of the judgment of Latham J, with whom McClellan CJ at CL and Schmidt J agreed:  

“3 The 22 offences essentially arise out of five separate criminal enterprises, each one committed by two men (of whom one is the respondent on the Crown case), generally involving the theft of a car from a car yard, using a stolen vehicle to drive to a small to medium sized bowling club in the western district of Sydney in the early hours of the morning, breaking into a part of the club which is not secured by the club's alarm system (such as a toilet or store room), waiting within that area of the club until the arrival of staff in possession of keys to the safe, donning balaclavas before threatening the staff with a firearm (in respect of four of the robberies), robbing the club of cash, and either departing in the stolen vehicle or in the vehicle of a staff member. All of the offences occurred between 14 July 2008 and 28 August 2008.

4 An alleged co-offender, Robert McCarthy, pleaded guilty to the offences arising out of the robberies on four of the five bowling clubs and was sentenced on the basis that he would give evidence in the respondent’s trial to the effect that the taller of the two offenders, either depicted in close circuit television footage or described as such by witnesses, in each case was the respondent. The offences arising out of the robbery on the fifth bowling club (at Moorefields) are alleged to have been committed by the respondent and another man, and are the subject of admissions made by the respondent to Mr McCarthy.

5 The only issue in the trial of the offences is the identity of Mr McCarthy's co-offender in each case and the identity of the taller man in the Moorefields robbery.”

5. By its judgment in 2010, this Court quashed the rulings of the primary judge as to severing the indictment and adducing tendency and coincidence evidence. The matter returned before the primary judge the following day, 23 March 2010, when the issues were refined. The parties were agreed that what remained after the decision of this Court was an evaluation under s 101 of the Evidence Act 1995 (NSW). Counsel for Mr Ceissman maintained his objection, although he conceded that if the evidence be admissible “it would be conceded that the counts ought be heard together” (written submission, 23 March 2010, para 27). He emphasised what he said was the relative weakness of counts 8, 9 and 10, in which the Crown witness Mr McCarthy had not been a participant, but merely gave evidence of admissions by Mr Ceissman.

6. Her Honour admitted the evidence as coincidence evidence, by decision delivered the following day, relying on the fact that directions to the jury as to “the cautious approach they must adopt when determining whether to accept [Mr McCarthy’s] evidence” produced the result that s 101 did not exclude the evidence. This aspect of her Honour’s ruling is not challenged on appeal.

7. In relation to the evidence relating to counts 8, 9 and 10 (a point which is pressed on appeal), her Honour said:  

“Mr Averre submitted that I would more readily conclude in relation to counts 8, 9 and 10 that the probative value of the evidence of the related events is substantially outweighed by the prejudicial effect of the evidence. I cannot see that the prejudice is any greater than or is different in relation to those counts than it is in relation to the other counts.

I therefore propose to allow the Crown to rely as coincidence evidence on the facts and circumstances upon which he relies to establish each count to prove the accused committed each of the offences.”

Overview of the Crown case at trial

8. The evidence adduced at trial substantially was as anticipated in the summary reproduced above from this Court’s judgment in 2010. There was no dispute as to the facts of the armed robberies or of the theft by two masked men of a car (either from a car yard or from an employee of the club). The issue at trial was whether the taller of the two robbers was Mr Ceissman. What follows deals only with the robberies in relation to which Mr Ceissman was convicted.

9. In respect of the robbery at the Moorefield Bowling Club, the unchallenged evidence of the eyewitness was that the men wore hooded jackets with scarves wrapped around their heads. In respect of the robberies at the Canterbury and Mount Lewis Bowling Clubs, the witnesses said that the men wore balaclavas. The witnesses said that the robbers wore knitted gloves at the Canterbury Bowling Club, and pink rubber gloves at the Mount Lewis Bowling Club.

10. Much of the extensive CCTV footage tendered at trial and seen by the jury is not included in the appeal books, but some stills from the Mount Lewis robbery were reproduced, which clearly show the men in black balaclavas and gloves (appeal book pages 275-280). Two balaclavas and four pink rubber gloves were recovered from a caravan used by Mr McCarthy in the execution of a search warrant on the day following the Mount Lewis Bowling Club robbery; the DNA obtained from one of the gloves and one of the balaclavas is the subject of the second proposed ground of appeal.

11. As noted at the outset, Mr McCarthy gave evidence in the Crown case, to the effect that he and Mr Ceissman robbed, inter alia, the Canterbury and Mount Lewis bowling clubs, and that Mr Ceissman had told him of the Moorefield robbery on the day it took place.

12. It is convenient to elaborate slightly aspects of each of the Moorefield, Canterbury and Mount Lewis robberies.

(a) Counts 8-10 – Moorefield Bowling Club 18 August 2008

13. In the early hours of the morning of 18 August 2008, two men broke into and entered the Moorefield Bowling Club at Kogarah. They approached a cleaner working at the club, questioning him about the club’s safe. They did not obtain access to the safe.

14. The cleaner gave evidence that the men were armed with a crow bar, and that one of them took two knives from the Club. He was locked in the club’s coolroom. He said that he had started shaking, and was given a can of coca cola. He told the robbers that he thought he was having a heart attack. He said that he told the robbers that they could extract the hoppers from the first five poker machines (the others had been left opened and empty) and explained how they could do so. He said that one of the robbers wanted his car keys but told him “Your car will be left local with the keys in it; we won’t do nothing to it.” Eventually, he found that $1366 had been taken from the five poker machines, and his car taken. He recovered his car about 500 yards from the club in a laneway. One of the knives taken from the club was found in the vehicle. He was not cross-examined on any of the evidence summarised above.

15. The Crown case was that the two men were Mr Ceissman and a third co-offender, Mr Hy Trieu, who was known as “Heath”. Mr McCarthy gave evidence that he met Mr Ceissman at a hotel in Dulwich Hill later on 18 August 2008 where “he was tired as hell”. (The cross-examination based on telephone records suggested that they met around midday; not all of the telephone records were reproduced in the appeal books.) Mr McCarthy said that he was told that “him and Heath went to some place at Brighton Le Sands, bowling club, or there’s a club out that way … they found a club out there and that they actually held the club up.” He said that Mr Ceissman told him that they used a knife and a crowbar, they didn’t get any money but got some “loose coins only” because “the safe was locked”. He said:  

“They ambushed the guy inside, the old man inside. … he said they locked him up, locked him up in a fridge or a freezer, I think it’s a fridge. You know, he had a bit of a panic attack. The old man. At that point Adam said he was a little bit worried. They gave him a bit of water or something. Tried to calm him down. They asked – I think they asked the question because I think he turned around and said ‘I’m not the manager, I’m just a cleaner. … I can’t get access to the safe.’ … I asked him how they left. I think they took the car that belonged to the cleaner, the Ford Falcon. Him and Heath left in the Ford Falcon, I think, drove back to Adam’s car and left the scene.”

16. Mr McCarthy said that he could not be 100% sure that Mr Ceissman was involved in this robbery: “I was not there, so 100%, I cannot say he was involved in that armed robbery. I can only say what he told me.”

(b) Counts 11-17 – Hong Kong Smash Repairs, 20 August 2008 and Canterbury Bowling Club, 23 August 2008

17. The Crown case was that Messrs McCarthy and Ceissman broke into a smash repairer’s yard at Five Dock on or about 20 August, stole a yellow Mitsubishi Evo Lancer vehicle, drove to Dulwich Hill, collected a gun from Mr McCarthy’s caravan and drove towards Campbelltown. On the way they became involved in a police pursuit. Eventually the car was parked at Five Dock.

18. Early in the morning of 23 August 2008, Messrs McCarthy and Ceissman drove to Canterbury Bowling Club and entered the club through a second storey window that went into the men’s toilet block. Mr McCarthy was armed with a sawn off shotgun. They sat there and waited for a couple of hours until two men and a woman arrived at the Club. Each of those three people was detained in the toilet block. One of the three, who had been threatened with the shotgun, “was starting to shake like a leaf and gone pale” so that one of the others pretended to have an asthma attack to distract their attention. The woman was directed to open the safe and the poker machines. Around $2000 in cash and boxes containing money from the poker machines were taken by the two. They took a set of Camry keys from one of the men, locked the employees in the safe, drove away in the Camry which was abandoned at Campsie, and recovered, with some damage, by police a few days later.

19. One of the employees who had been detained in the toilet block said that the taller man had a missing tooth.

(c) Counts 18-22 – Mount Lewis Bowling Club, 28 August 2008

20. The Crown case was that Messrs McCarthy and Ceissman drove the stolen Evo to the Mount Lewis Bowling Club arriving around 4 or 5am on 28 August 2008. They broke into the toilet block where they waited for more than an hour until two cleaners arrived. Again, they threatened these men with a gun, asked about the safe, but were told that they didn’t have keys for it. The safe was locked and the men decided to leave the Club. Mr Ceissman took the keys for a Commodore from one of the men, went outside, drove the Commodore to where they had left the Evo. They dumped the Commodore and drove away in the Evo. No money was taken.

21. Mr McCarthy was arrested the following day, 29 August 2008, and identified the caravan, the gun, his clothes, the pink gloves and the balaclavas as his. He pleaded guilty to the robberies at Canterbury and Mount Lewis (as well as to the robberies at Campbelltown and Ashbury Bowling Clubs in respect of which Mr Ceissman was acquitted). He received a 25% discount for the plea, plus a further 25% discount on his sentence for the promise to assist in the Crown case against Mr Ceissman (all this was disclosed to the jury in his evidence in chief). He said he had a clear memory of committing the Canterbury and Mount Lewis robberies with Mr Ceissman: “Won’t remember all the details. Won’t have everything perfect, but my memory is quite clear that I committed that offence with Adam.” He also gave a detailed account of being driven to Hong Kong Smash Repairs at Five Dock by Mr Ceissman, where he deliberately set the alarm off, waited for security to arrive and leave, then broke in and took the vehicle. He gave evidence in chief concerning covertly recorded transcripts of his telephone conversations with Mr Ceissman which referred to the stolen vehicle (“We’ll just get the Evo”) and a call in which he said he was telling Mr Ceissman how to disable its alarm and immobiliser.

22. Mr Ceissman gave evidence and was cross-examined. He said that he knew of and had associated with Mr McCarthy, but denied participating in the robberies with him or with Mr Hy Trieu. He accepted that he had met Mr McCarthy on 18 August 2008, but denied admitting that he had robbed the Moorefield Bowling Club earlier that day. He knew of the Mitsubishi Evo, and had driven in it, but denied being involved in its theft.

Procedural history

23. There have been a series of delays in the bringing of this appeal, some of which are attributable to the fact that Mr Ceissman is now unrepresented. He was convicted on 20 April 2010. A series of extensions of time were granted permitting an appeal against conviction by 12 April 2012. A notice of appeal dated 7 June 2012 was received by the Registry on 26 July 2012. A single page of typed submissions was supplied on 26 March 2014, leading to the hearing of the appeal set down on 17 April 2014 being vacated. Mr Ceissman has also served three handwritten pages of submissions dated 10 September 2014 to which were added two additional typed pages which were handed to the Court on 3 March 2015 when the appeal was heard, and marked MFI 1. Mr Ceissman briefly elaborated orally what had been put by him in writing.

24. The handwritten submissions dated 10 September 2014 also annex four grounds of appeal and a trial summary. The submissions are directed to those four grounds of appeal, as are the submissions in MFI 1. They represent a slight narrowing of those identified in the original grounds of appeal filed 9 October 2013. Further, the written submissions in some respects travel beyond the grounds of appeal. Given that Mr Ceissman is unrepresented, what follows addresses all aspects of his challenge, irrespective of when the matters were raised.

25. Although an extension of time is required, and there is no explanation for the series of delays, the essential aspects of the proposed appeal have remained constant and the appropriate course is to grant the requisite extension, so as to deal with the grounds on their merits.

26. In the various documents he has provided, Mr Ceissman complains of four main matters.

27. First, he maintains the submission advanced in the District Court by his former counsel on 23 March 2010, that counts 8, 9 and 10 should have been severed from the balance of the trial (grounds 3 and 5 of the notice of appeal filed 9 October 2013 and ground 1 of the grounds dated 10 September 2014).

28. Secondly, he complains that DNA evidence linking him to material found in the pink rubber gloves and the balaclava should have been held inadmissible (ground 4 of the notice of appeal filed 9 October 2013 and ground 2 of the grounds of appeal dated 10 September 2014).

29. Thirdly, he complains that the cleaner at the Moorefield Bowling Club gave limited identification evidence at the trial, and was not asked whether he could identity Mr Ceissman in the dock (ground 3 of the grounds of appeal dated 10 September 2014).

30. Fourthly, he says that the jury’s verdict was unreasonable or unjust, by reason of the foregoing and also because of the unreliability of the Crown’s major witness Mr McCarthy (grounds 1, 2 and 6 of the notice of appeal filed 9 October 2013, ground 4 of the grounds of appeal dated 10 September 2014).

31. Each of those complaints is addressed below in turn, before turning to some miscellaneous additional matters.

The ruling on counts 8, 9 and 10

32. The outcome of the application for a separate trial of the allegations concerning the Moorefield Bowling Club robbery depended entirely upon the determination of the admissibility of coincidence evidence as provided by s 98 of the Evidence Act 1995 (NSW). Section 98(1) relevantly provides:

“(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act … on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) …

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

33. The coincidence evidence upon which the Crown relied was summarised in [3] of Ceissman (set out in [4] above).

34. That, for the purposes of s 98(1) the evidence had significant probative value, is foreclosed by the decision of this Court in Ceissman at [16].

33. The remaining question for the primary judge was that posed by s 101(2) of the Evidence Act: did the probative value of the coincidence evidence substantially outweigh any prejudicial effect it may have had on the appellant?

34. The question requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact:  R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228.

35. Even in the absence of the determination in Ceissman, it is clear that the evidence (as summarised in [3] thereof) potentially has very substantial probative value. The argument advanced in the District Court in favour of a separate trial of the counts concerning the Moorefield Bowling Club robbery appears to have been based on the relative weakness of the Crown case in contrast with the strength of the Crown case in respect of the other robberies. Apart from the proposed coincidence evidence, the Crown case, in respect of the Moorefield Bowling Club robbery, depended upon a description of the offender as a tall man with bad teeth (a description fitting the appellant), and the evidence of Mr McCarthy that the appellant admitted to him, on the day of the offence, that he had been one of the perpetrators.

36. In his initial grounds of appeal, the appellant pointed out what he perceived as a distinguishing feature of the Moorefield Bowling Club robbery – that, in contrast with the other robberies, a “black firearm” was not used. Both arguments fail to address the issues that arise under s 101(2). Given the strong probative value of the evidence, the question is whether that probative value substantially outweighs any prejudicial effect. That requires focus upon any prejudice occasioned to the appellant by the admission of the evidence.

37. The first thing to observe is that any evidence tendered by the Crown against an accused person can be taken to have a prejudicial effect. That is why it is tendered – to contribute to the proof of his/her guilt of a criminal offence. To be excluded by s 101(2), the evidence must have more than prejudicial effect of that kind.

38. The primary judge held that the prejudicial effect of the coincidence evidence in relation to Counts 8 to 10 was “no greater than or … different in relation to those counts than … in relation to the other counts”.

39. In that, she was correct.

40. It must be remembered that the purpose of s 98 is to permit, where the requisite statutory safeguards are met, the admission of the evidence that proves, or contributes to proving, that two or more events did not occur coincidentally.

41. The two or more events here in question were the Moorefield Bowling Club robbery and the other four robberies the subject of the indictment.

42. There was evidence of a co-offender directly implicating both himself and the appellant in several of the robberies (the appellant was convicted of two of these). The improbability that the Moorefield Bowling Club robbery, having a number of the features of the Hong Kong Smash Repairs and Mount Lewis Bowling Club robberies, occurred coincidentally (but without the involvement of the appellant) was the fact sought to be proved by the tender of the coincidence evidence.

43. That is precisely what s 98 directed to. This was a text book case of coincidence evidence.

44. There was no prejudice to the appellant other than the prejudice that the coincidence evidence was capable of being seen by the jury as powerful evidence of his guilt of the Moorefield Bowling Club robbery.

45. This ground of appeal must be rejected.

Partial DNA evidence

48. This proposed ground turns upon expert evidence identifying DNA samples found, relevantly, in a pink rubber glove and a balaclava taken during execution of a search warrant at Mr McCarthy’s residence. The warrant was executed on 29 August 2008 (the day after the Mount Lewis robbery); the photograph of the balaclavas in evidence was taken at 12.50pm. The uncontroversial evidence was that a black backpack was found on one of the wheels of a caravan where Mr McCarthy spent time, which contained the gloves and the balaclavas. (The DNA evidence at trial also extended to identifying Mr Ceissman’s DNA on a green cap found near the Campbelltown Bowling Club, which Mr Ceissman accepted was his; it may be noted that he was acquitted of counts relating to that bowling club and save to note that it is mentioned in Mr Ceissman’s submissions, it is not necessary to say more about it.)

49. This proposed ground complained that the DNA evidence relating to the pink gloves and the balaclava ought not to have been admitted because, unlike that relating to the green cap, it was a partial profile, in the sense explained below.

50. In his submissions dated 26 March 2014, Mr Ceissman states:

“The Crown’s application did not stipulate that only one full DNA profile of the Appellant was recovered (being on 1x green cap) The remaining DNA evidence on said (1x Pink Gloves, 1x balaclava) was a partial profile, also a cross-contaminated DNA profile. The Crown’s application should have stated this to Her Honour Flannery DCJ.”

51. In his submissions of 10 September 2014, he stated:

“Mr Cochrane [the Crown DNA expert] did not compare this D.N.A evidence with the rest of the criminal D.N.A database ... He only compared this evidence with the profiles of McCarthy and the accused, making his testimony to the jury extremely discriminative against the accused and statistical estimation completely bias.” [sic]

52. In the written submissions supplied to the Court when the appeal was heard, he wrote:  

“Forensic biologist & police sergeant Mr Mark Cochrane’s evidence, under oath was in fact irrelevant, (except for the full D.N.A profile of the accused’s on a green cap at Campbelltown bowling club.) Mr Cochrane’s evidence was cogent for jurors and reflects in their verdicts on counts #11 to #22. The remaining D.N.A evidence on a black balaclava and a pink glove were a combination of a partial profile, as well as having less than half a profile it was cross-contaminated.”

53. This ground must be rejected. First, expert DNA evidence was adduced by the Crown and by the defence (who called Professor Barry Boettcher) without objection. It is clear from the transcript of the trial that the report of the Crown’s expert had been provided in advance to Professor Boettcher. No objection was taken during the trial to the Crown evidence. That decision, made by experienced counsel appearing for Mr Ceissman, is of itself a powerful indication of the difficulties in this ground.

54. Secondly, although Mr Ceissman’s submissions consistently assert that there was a partial DNA profile on the samples obtained from both the pink glove and the balaclava, in fact the profile recovered from one of the pink gloves was not a mixture. Mr Cochrane gave this evidence:

“Q:  In relation to the two pairs of rubber gloves, the pink ones, on one of the right gloves, was a profile recovered that was consistent with Adam Ceissman?

A:  The profile recovered from Adam Ceissman matched that profile recovered from that right glove, yes.

Q:  And what was the statistic on that chance happening?

A:  The approximate occurrence in the general population was fewer than one in 10 billion individuals.”

55. It may be that the confusion is caused by the analysis of DNA taken from the other pink glove, which did reveal a mixture, described as follows:

“Q:  And was - because we’ve got four gloves for the two pairs – two left, two right – that was one of the right gloves; was the other right glove tested, and did that profile or did that reveal a profile consistent with Robert McCarthy with traces from at least one other individual that were too low to determine a profile?

A:  That’s correct.”

56. But that does not undercut the force of the evidence relating to the DNA sample from the other pink glove. Accordingly, the complaint which is based upon the danger of partial DNA samples does not apply to the glove. It might readily be thought that there is little material difference between there being one item or two items containing DNA associated with Mr Ceissman being found on a caravan used by Mr McCarthy on the day after the Mount Lewis robbery took place.

57. Thirdly, it must be said that the DNA obtained from the balaclava was quite different. The result of that analysis was a “mixed profile” from two sources. The process was described in evidence as follows:

“Q:  So, the attribution of the DNA mixture to McCarthy and Ceissman is actually based upon the DNA profiles of McCarthy and Ceissman?

A:  Firstly, independently, we check out to see if the mixture appears to originate from how many people. In this case, it appears that it’s originated from two individuals. We can’t differentiate between which person contributes certain DNA profiles to that. So what we do after that, we look at the DNA profiles that we recovered from their reference samples and we check them against the mixture. If they fit into the mixture, we do a statistical calculation based on them being able to fit into that mixture. If they don’t fit into that mixture, we exclude them as being contributors to that mixture. In this case, we could not exclude McCarthy and Ceissman as being contributors to the mixture. So, therefore, we did statistics based on what the weight is that it could be their profile as opposed to it might not be their profile; the mixture originated by chance from other people apart from them.”

58. The following evidence was given in relation to what could be deduced from a mixed DNA profile:

“Q:  Thank you. And were the results a mixed profile which appears to originate from two individuals?

A:  That’s correct; there was a mixture that appeared to come from two people.

Q:  And who – well, was the profile consistent with the profiles - is that the right way to express it, consistent with the profiles of McCarthy and Ceissman?

A:  What we got was a mixture of two people. So, there were obviously two people in there. When we compared that mix of DNA profile, both McCarthy’s and Ceissman’s profile, they appeared to be within that profile. So, when combined together, they looked to be the whole profile, but both people fit into that mixture.

Q:  And what was the statistic for that?

A:  It’s greater than 10 billion times more likely to obtain this profile if it originated from McCarthy and Ceissman than from two unknown, unrelated individuals.”

59. The point made by Professor Boettcher in the defence case was that the relative unlikelihood of the mixed DNA sample originating from Mr McCarthy and Mr Ceissman, as opposed to from two unknown and unrelated individuals, was much less than the unmixed DNA samples. As Professor Boettcher put it in chief:  

“We cannot exclude McCarthy and Ceissman, but we don’t know whose profiles they are. I can give you hundreds of profiles that would fit the mixture, and give you two people, neither of whom would be Mr McCarthy or Mr Ceissman.

Q:  That’s because it’s a mixture -

A:  Yes.

Q:  - rather than several individual bigger pigs which are mentioned about in relation to the green cap?

A:  That’s correct. You can’t separate those pieces of DNA and ascribe them to person A or to person B.”

60. The Crown expert had merely said in his report that the DNA “could” originate from McCarthy and Ceissman, with which Professor Boettcher agreed. Further, it was common ground that if it were established that McCarthy’s DNA was one of the contributors to the mixture, then with an extremely high degree of likelihood, Mr Ceissman was the source of the other component.

61. However, this goes only to show that Mr Ceissman’s complaint that parts of the DNA evidence were obtained from a “partial profile” is relevant to the weight of the evidence, not to its admissibility.

62. In a case such as this, r 4 of the Criminal Appeal Rules (which prevents points being raised on appeal if they were not taken below) looms large. Leave should not be granted in respect of this ground.

Identification evidence

63. Mr Ceissman’s submission is as follows:

“… [A] witness for the Crown in the Moorefields robbery … stated … ‘the robber’s scarf kept falling down, so I happened to see the faces’. Madam Crown refuses to ask the laydown misere question to the witness. With little independent evidence in counts #8, #9 and #10 to corroborate Mr McCarthy’s evidence, her Honour in her summation did not direct the jury correctly allowing the jury to return unjust and unreasonable verdicts.”

64. This witness was a cleaner at the Moorefield bowling club who saw the two robbers on the morning of 18 August 2008. He said that he could see that one had bad teeth: they were “not white and just not very good teeth”. His evidence was:  

“[T]hese gentlemen didn’t have balaclavas or anything on, they had hoods on their jackets but they had a scarf, just a scarf wrapped around their thing and every time they sort of spoke the scarf would fall down. So this is how I happened to see the face.”

65. The “laydown misere question” which was not asked of the witness and said to give rise to this ground of appeal was whether the face he saw was that of Mr Ceissman, by reference to him sitting in the dock. There are two reasons why this ground cannot be accepted. First, the witness did not claim that he could identify Mr Ceissman; he merely gave a description of the burglars. Secondly, such a question could not properly have been asked by the Crown in any event. There would first have needed to be an identification parade conducted pursuant to s 114(2) of the Evidence Act:  see Aslett v R [2009] NSWCCA 188 at [49].

66. In short, far from being a “laydown misere question” which should have been asked and which could found a ground of appeal if it were not asked, it would have been quite wrong for the question to be asked. Again, although we can understand why Mr Ceissman makes the submission he makes, there is nothing in this point. This ground should be dismissed.

Unreasonable verdict

67. Finally, Mr Ceissman seeks to invoke this Court’s power under s 6(1) of the Criminal Appeal Act 1912 (NSW) to set aside the jury’s verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence. The question is whether it would be open to the jury to be satisfied of guilt beyond reasonable doubt, “which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”:  Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]. If leave is granted, it is necessary for this Court to weigh the competing evidence and make its own independent assessment: SKA at [24]; BCM v The Queen [2013] HCA 48; 88 ALJR 101 at [31].

68. Some difficulties stand in the way of that course. Mr Ceissman’s submissions on this ground are essentially confined to the unreliability of the evidence of the co-offender Mr McCarthy. However, the trial lasted for 16 days, and much of the documentary evidence (including telephone records and transcripts of conversations between Mr Ceissman and Mr McCarthy as to which there was extensive cross-examination) is not reproduced in the appeal books. The cross-examination had the effect of filling in most of the gaps caused by the loss of evidence, and clarifying what the conversations were. There was uncontested evidence that a number of exhibits had been lost following the conclusion of the trial more than four years ago, but the missing evidence was all tendered by the Crown. There was nothing in Mr Ceissman's submissions that suggested that there was anything in that material that would have assisted his argument with respect to this ground of appeal. Bearing in mind that Mr Ceissman is unrepresented, the appropriate course is to address all of the submissions he has made, and to indicate, to the extent possible, the remaining considerations which make this a case where it would not be dangerous in all the circumstances to allow the guilty verdict to stand:  cf SKA at [14].

69. As noted above, the trial judge gave a lengthy warning to the jury about relying upon the evidence of the co-offender Mr McCarthy. It will have been noted that Mr McCarthy’s evidence as to the conversation at the hotel in Dulwich Hill on the same day as the Moorefield Bowling Club robbery bears considerable resemblance to the evidence of the cleaner (especially, the panic attack and the complaint of a heart attack, giving him a drink, and locking him in the cool room).

70. However, even putting to one side the evidence of Mr McCarthy, there was what may fairly be described as a strong Crown case against Mr Ceissman in respect of each of counts 8-22. In relation to the Mount Lewis Bowling Club, there is the DNA evidence relating to the black balaclavas and pink rubber gloves referred to above, found when a search warrant was executed. Mr Ceissman’s explanation that he once wore pink rubber gloves when he worked as a labourer, which were then taken from inside a backpack he kept and then used by Mr McCarthy is one which the jury could readily disbelieve. Moreover, by this time officers in the State Surveillance Branch of the NSW Police Service were following Messrs McCarthy and Ceissman. They were photographed standing together at around 8pm on 27 August 2008.

71. In short, DNA and surveillance evidence powerfully connected Mr Ceissman with the Mount Lewis Bowling Club robbery. As this Court noted in 2010, there was a very close similarity in what occurred at all of the bowling clubs, in terms of the time of the break-in, waiting for staff to arrive, the use of stolen vehicles, and the use of gloves and masks.

72. In relation to the theft of the vehicle from Hong Kong Smash Repairs, in addition to Mr McCarthy’s evidence, there were the transcripts of intercepted telephone calls between him and Mr McCarthy, connecting him with the vehicle, referred to above at [21].

73. In relation to the Canterbury Bowling Club robbery on 23 August 2008, again there were telephone intercepts of conversations between Mr McCarthy and his girlfriend at 11:05pm on 22 August saying that he was “with Adam” and they were in Adam’s car. Telephone records from McCarthy’s mobile phone showed that the call lasted 51 seconds and was picked up from a carrier’s tower in Newtown. There was evidence that calls were made on Mr Ceissman’s mobile phone at 11.06pm, 12.06am and 2.11am that night; the call made at 11.06pm was also picked up from a carrier’s tower in Newtown. Mr Ceissman said that it was possible that he was speaking with Mr McCarthy in the car, then said that he could not remember whether he was present when Mr McCarthy made the call, then denied that he was preparing with Mr McCarthy to rob the Canterbury Bowling Club. But the two calls being made at 11.05pm and 11.06pm, one shortly after another, both picked up from a tower in Newtown, in one of which Mr McCarthy said he was with Mr Ceissman, powerfully incriminated Mr Ceissman in the robbery which took place a few hours later to which Mr McCarthy confessed. Moreover, one of the employees at the club described the taller of the robbers as having a tooth missing:  “he had a tooth missing, it just stood out”; that matches the description of Mr Ceissman.

74. In relation to the Moorefield Bowling Club robbery, once again telephone records showed Mr Ceissman in contact with Hy Trieu (“Heath”) at the relevant times. Mr Ceissman’s mobile phone made calls at 12.12am, 12.13am and 2.36am. The first two of those calls were to Mr Ceissman’s home. Mr Ceissman agreed in cross-examination that he was not at home when those calls were made. The third was made to Mr Hy Trieu, for 199 seconds. The Crown case was that the pair were arranging to meet and rob the bowling club; Mr Ceissman said “Well, I asked him where he was and what he was doing.” There were further text messages between the two men at 2.40am, 2.45am and 2.50am, for which Mr Ceissman had no plausible explanation. Once again, a witness identified the taller offender having bad teeth. Mr McCarthy’s evidence of the admissions concerning the way in which the break-in occurred were consistent with photographs of the entry doors of the club and the crow bar being located in Mr Ceissman’s car.

67. True it is that Mr Ceissman accepted that he had been in telephone contact, and had met, with Mr McCarthy on 18 August 2008, but denied that he had admitted robbing the Moorefield Bowling Club with Mr Hy Trieu. However, his explanation, coupled with the numerous calls and text messages between the two men in the early hour before the Moorefield Bowling Club was robbed, coupled with the other evidence mentioned above, is not one which leads to a conclusion that the jury must have entertained a doubt as to Mr Ceissman’s guilt of the offences for which he was convicted, even acknowledging the potential unreliability of the testimonial evidence of Mr McCarthy.

68. For those reasons, having regard to the whole of the evidence insofar as it was available to this Court, this is a clear case where it was open to the jury to be satisfied beyond reasonable doubt that Mr Ceissman was guilty.

Remaining grounds and orders

77. One other point was made by Mr Ceissman in oral submissions. It turns on a passage in the (lengthy) address to the jury by the prosecutor and identified an error. At the commencement of the second day of closing submissions, the prosecutor said:  

“Thank you, your Honour. Members of the jury, yesterday I addressed you on five of the reasons that I said I would address you on which was the coincidence evidence, the opportunity – being in the right place at the right time, motive for the accused to commit these offences being a financial need, the DNA and fingerprint evidence, and also the general description of the taller man including the teeth matching with the description of the accused.”

78. True it is that the transcript records what appears to be an error. As Mr Ceissman correctly submits, there was no fingerprint evidence. On the previous day, the prosecutor had made a point of the absence of fingerprint evidence and the fact that Mr McCarthy had given evidence that “we also put gloves on so we don’t leave fingerprints anywhere”. The point that was made by the prosecutor was that the absence of fingerprint evidence was not exonerating.

79. The transcript may not, in this respect be accurate. Even if it is, it is impossible to conclude that the jury could have been misled by the loose reference to what had been said the previous day by the prosecutor. It would have been obvious to all who had been in court throughout the 16 day trial that there was no fingerprint evidence, and a deal of evidence concerning gloves and the DNA material found on them. Accordingly, leave to appeal should not be granted on this ground.

80. The Court’s orders are:

1. To the extent necessary, extend time to appeal and to permit reliance on the grounds of appeal identified in the notice of appeal filed 9 October 2013 and the grounds of appeal dated 10 September 2014.

2. To the extent necessary, grant leave to appeal in respect of grounds 1, 2, 3, 5 and 6 of the notice of appeal filed 9 October 2013 and grounds 1, 3 and 4 of the grounds of appeal dated 10 September 2014, and otherwise refuse leave to appeal.

3. Appeal dismissed.

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Decision last updated: 30 April 2015