Director of Public Prosecutions v Uranga
[2019] VCC 832
•11 June 2019
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION
Revised
(Not) Restricted
Suitable for Publication
Case No. CR-17-02307
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANDRES URANGA
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JUDGE:
HIS HONOUR JUDGE C RYAN
WHERE HELD:
Melbourne
DATE OF HEARING:
4, 5, 7 & 11 June 2019
DATE OF RULING:
11 June 2019
CASE MAY BE CITED AS:
DPP v Uranga
MEDIUM NEUTRAL CITATION:
[2019] VCC
REASONS FOR RULING
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Subject: EVIDENCE
Catchwords: Evidence – Admissibility – Coincidence evidence – Armed robbery – Circumstantial evidence case – Consideration of evidence as a whole – Multiple forms of evidence relied on in support – Similarities between incidents – Application for severance.
Legislation Cited: Evidence Act 2008 ss98, s101.
Cases Cited: IMM v R (2016) 257 CLR 300; Hughes v R [2017] HCA 20
Ruling: Coincidence evidence ruled admissible. Application for severance refused.
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APPEARANCES:
Counsel
Solicitors
For the DPP
Mr A. Buckland
Solicitor for the Director of Public Prosecutions
For the Accused
Mr D. McGlone
Valos Black & Associates
HIS HONOUR:
Yesterday I ruled that the evidence sought to lead by the Crown as coincidence evidence was admissible. I give my reasons.
By Indictment No H12322807, the Crown charges the accused, Andres Uranga, with five armed robberies committed in St Albans and Deer Park on 12 February 2017, 21 May 2017, 18 June 2017, 19 June 2017 and 10 July 2017. The subject of each armed robbery was what could be described as a soft target, being service stations (Charges 1 and 3), pharmacies (Charges 2 and 4) and a milk bar (Charge 5).
The Crown by notice dated 4 June 2018, seek to rely on coincidence evidence to prove that the person who committed each of the armed robberies was the same man, being the accused.
In summary, the Crown relies on closed circuit television (“CCTV”) footage of each armed robbery, together with physical evidence seized by police being; clothes, a backpack and a distinctive imitation firearm seized from the accused’s home address in Tenterfield Drive, Burnside Heights and the address where he was staying at the time of his arrest, Lennon Park Way, Derrimut, together with DNA evidence and the accused’s access to a blue Holden SV6 sedan, to demonstrate the accused’s guilt. The Crown rely on the distinctive use of the imitation firearm during the armed robberies, clothing worn during the armed robberies, DNA evidence and the distinctive imitation firearm that was used in the armed robberies as well as the accused’s admissions in respect to the ownership of the seized firearm, certain items of clothing and access to a blue SV6 sedan to make good the application.
Tendered as Exhibit E was a DVD containing CCTV footage of each of the five armed robberies. Ultimately tendered as Exhibit H, but used throughout the argument, was the proposed jury book for trial containing still images extracted from the CCTV footage contained on Exhibit E, together with photographs of property either seized from the accused’s residence or provided to police by Mr Ruben Muzo, the occupant of the Derrimut address where the accused was living temporarily at the time of his arrest.
Seized at the accused’s home was a cap with a black crown and distinctive grey peak. Attached to the left hand side of the peak, was a circular sticker. Also seized was a white baseball type cap. As well, seized from the accused’s address was a distinctive imitation firearm made from bicycle parts which was acknowledged by the accused to be his in his record of interview (See question and answer 352). Property provided to the police by Mr Muzo on 17 and 18 August 2017 included a pair of red/orange underpants with a yellow band with the word “Sunday” written repeatedly on the band in a red/orange colour consistent with the colour of the cloth of the underpants. Further, a pair of Nike runners, a blue backpack with the words “Sunshine Secondary College” embroidered on its front, a black jacket with the following characteristics; a hood that sat inside the line of the jacket’s collar; shiny black vinyl shoulder patches, epaulettes, zips on each breast and a manufacturer’s mark printed on the hem of the left hip. Further, a grey “Crosshatch” hoodie bearing the number “36” on the right breast. Also seized from the accused at the time of his arrest was a white “Crosshatch” belt with writing and symbols depicted on it.
It is part of the Crown case that the male who committed the armed robbery the subject of Charge 5, parked at and left in a blue Holden SV6 sedan from a location close to the milk bar the subject of that robbery. In his record of interview, the accused acknowledged that he had access to a blue SV6 Commodore sedan at the time of the happening of the armed robbery the subject of Charge 5 and that he owned a Crosshatch brand grey hoodie with the number “36” on its right breast.
It is the constellation of circumstances that the Crown rely upon to support the argument that in combination the evidence is coincidence evidence. Coincidence evidence is evidence which uses the improbability of two or more events occurring coincidentally to prove, in the present case, that the accused committed each of the five armed robberies with which he is charged. The Crown will seek to persuade the jury to infer from the evidence of similarities between each and/or some of the armed robberies and the circumstances in which each of the armed robberies occurred that it is improbable that the events occurred coincidentally and infer from the improbability of the coincidences that the accused was the robber in each of the five armed robberies.
There are three prerequisites to the admissibility of coincidence evidence. The first has been satisfied by the filing of the appropriate written notice (See s98(1)(a) of the Evidence Act 2008 “the Act”). The second requires the court to find the evidence will, either by itself, or having regard to other evidence, have ‘significant probative value’ (See s98(1)(b)). Thirdly, the Crown cannot use coincidence evidence ‘unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. (See s101(2) of the Act.). Evidence will have significant probative value if it is “important” or of “consequence” (See IMM v R (2016) 257 CLR 300) or if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent (See Hughes v R [2017] HCA 20 at [16]). Evidence does not need to be considered in isolation. Evidence together with other evidence may make it significantly more likely any facts making up the elements of the offence charged” (Hughes v R [2017] HCA 20 at [40]).
Because of the way in which the Crown puts its case, an analysis of the characteristics or similarities that can be discerned from the CCTV footage of each armed robbery needs to take place together with a comparison of the clothing worn in the armed robberies, with physical evidence seized by the police, the witness statements, admissions made in the record of interview and the DNA evidence.
Charge 1 – armed robbery committed at the United Petrol Station located at 27 St Albans Road, St Albans on 12 February 2017
There are two lots of CCTV footage shot from different angles within the service station at St Albans Road. As in all of the armed robberies the robber is a Caucasian male. He is depicted to be wearing a baseball type cap with a dark crown and patterned grey peak with a circular motif on the left side of the peak. The images of this cap are of sufficient quality to say that a cap of the kind if not a cap identical to the cap worn by the robber was seized by police from the accused’s home.
The robber carried what ultimately proved to be an imitation firearm, a topic to which I will refer later. The robber, rather than holding the imitation firearm with the pistol grip in a vertical position, held it with the pistol grip in a horizontal position. Further, throughout the course of the armed robbery, the armed robber used the muzzle of the imitation firearm to direct, point to and prod the cash register in the service station. During the course of the pushing and poking, a portion of the imitation firearm fell off and upon examination proved to be a flexible screw clamp with a triangular attachment. On a perusal of the CCTV footage, this item can be seen to form a foresight for the imitation firearm.
The clamp was analysed for the presence of DNA. Kate Outteridge, forensic officer and senior case manager within the Biological Services Group of the Forensic Services Department of the Victoria Police Forensic Centre, Macleod, was called on the voir dire on Tuesday, 4 June 2017 and swore that a reference sample of the accused’s DNA, when compared with the minor contributor to DNA found on the clamp, demonstrated that it was 100 billion times more likely that the accused was the contributor to that DNA than a person randomly selected from the community.
In the DNA examination, Ms Outteridge ascertained there were three possible contributors to the DNA found on the clamp. An analysis of the DNA of the major contributor revealed results on 19 of the 21 sites tested. This profile was entered on the National DNA Database, at the time of doing so in 2018 no match could be found. During the course of the voir dire, Ms Outteridge made inquiries as to whether a result could now be found on the National Database in respect of that DNA profile. A match was found and it was consistent with the DNA of Mr Ruben Muzo, the friend of the accused. An analysis of the third possible contributor gave a reportable results at only two sites.
In respect to Mr Muzo, the likelihood ratio was the same as that for the accused, that being the default position of 100 billion times more likely that Mr Muzo was the donor of the major component of the DNA found on the clamp, than if the DNA came from a person randomly selected from the community.
On Wednesday, 5 June, Mr Muzo was called on the voir dire. He is a man in poor health. He weighs 140 kilograms. He is a morbidly obese man who suffers from fluid retention, particularly in his legs. The fluid retention is so severe that from time to time the skin on his legs splits, becomes infected and he is required to be hospitalised. He walks with a four pronged walking stick. He swore that in 2017, the year of the armed robberies, his weight was approximately 140 kilograms, his present weight, and he then, as he does now, suffer from fluid retention. On any view of the CCTV, Mr Muzo is not an alternative armed robber.
The robber wore a black jacket that had reflective shoulder patches consistent with the vinyl shoulder patches found on the jacket seized by police. The jacket worn by the robber also had epaulettes consistent with the jacket seized by police. Further, on the left hip at the hem of the jacket, is an oblong mark or label. Such a manufacturer’s mark appears on the jacket seized by police.
The robber can be seen to wear a light grey or white belt with markings/writing on it, he also wore grey jeans and grey and black runners.
A perusal of the CCTV footage and the stills taken from that footage contained in Exhibit H show the armed robber to be wearing black, tight fitting gloves consistent with black latex gloves. Black latex gloves were found in a backpack identified as part of the accused’s property by Mr Muzo and supplied by him to the police.
The robber was described as 5’7” tall which equates to 170cm. The victims assert that the robber spoke with an Australian accent and either had no facial hair or light-coloured stubble.
On viewing the CCTV the robber was plainly agitated.
Of note is that the armed robber arrived and left the scene of the armed robbery on a bicycle and did not have a bag of any kind with him.
Charge 2 - armed robbery of a pharmacy located at 104 Station Road, Deer Park on 21 May 2017
The hat worn by the robber was worn underneath a hood and all that could be seen of the hat is that it was a white baseball type cap. A cap of that kind was seized by police at the accused home.
The jacket worn by the robber was black in colour. The hood of the jacket was demonstrably part of the jacket and mounted inside the line of the collar of the jacket, consistent with the jacket seized by police. The jacket had epaulettes and the shoulders reflected light consistent with the black vinyl on the jacket seized by police. Seen on the CCTV footage are zips, one on each side of the chest, together with a mark at the hem of the jacket at the left hip, consistent with the jacket seized by police.
The robber held the firearm with the pistol grip in a horizontal position and used the imitation firearm to point and poke at the till within the pharmacy, attempting to demonstrate to the pharmacist what the robber wanted from the till.
The robber wore a white or grey belt with writing or markings on it that appears to be of the kind worn by the robber during the first armed robbery, and dark trousers.
The robber wore runners which appear to be of the kind worn by the armed robber in the first armed robbery.
The robber wore close fitting dark gloves consistent with those worn during the course of the first armed robbery.
Of note was that the robber had facial hair, being a moustache and goatee, unlike the robber in the first armed robbery. He had with him a garbage bag for the purposes of taking away the proceeds of the armed robbery and he spoke with a European accent. The accused speaks with a Spanish accent.
Of further note is that the robber robbed money personal to the pharmacist, Mr Truong, and attempted to rob money from his assistant, Ms Huynh.
Further, unlike the situation that pertained in Armed Robbery 1, where the victims were protected by a wire guard and locked door, the victims of Armed Robbery 2 were not so protected and the robber pointed the imitation firearm at the pharmacist and was physically aggressive towards him. He was described as appearing calm and told the victims to lie down.
Charge 3 - armed robbery at the Woolworths Service Station located in Neale Road, Deer Park on 18 June 2017
In respect to this armed robbery, there is but one short sequence of CCTV footage. The robber wore a white baseball type cap under a hood. The hood was attached to a grey hoodie that bore the number “6” on the right breast. The hoodie was worn under a black jacket that can be seen on the CCTV footage to have epaulettes and a zip on each breast. During the course of the record of interview, the accused admitted to owning a grey “Crosshatch” hoodie, that has been previously described above, that bears on its right breast the numerals “36” (see record of interview Question and Answer 429).
The robber was armed with what appears clearly to be an imitation firearm of the kind used in the previous armed robberies and seized by police, although it was not held with the pistol grip in a horizontal position. Further, the robber used the imitation firearm to gesticulate and poke at the till area of the service station as occurred in the first two armed robberies. The robber wore close fitting, black gloves consistent with the gloves worn in respect of each of armed robberies one and two and the latex gloves seized by police.
On this occasion the armed robber brought with him a blue backpack and during the course of the armed robbery and revealed on the CCTV footage, the portion of the pack that would come into contact with its wearer’s back was black in colour and on this area towards the top of the pack, was a white square. Seized by police on 17 August 2017 from Mr Muzo’s premises, the house where the accused had been staying at the time of his arrest, was a blue backpack typical of that worn by secondary school children comprising a number of compartments. The area of the pack that would come into contact with a student wearing the pack had a blue inverted “Y” frame and surrounding that frame was black coloured padding. Additionally, at the top of the inverted “Y” was a white patch for the purposes of writing the owner’s name and other identifying features.
The robber wore runners of the kind worn in the earlier armed robberies.
Of note is that the robber wore a moustache and goatee beard and spoke with an accent. He was described as being 6’ tall.
Charge 4 – armed robbery at Your Chemist Pharmacy, 179 Main Road, St Albans on 19 June 2017
On this occasion the robber wore a dark jacket entirely different to the jacket/s worn in the previous armed robberies. However, the robber wore a backpack that, on the CCTV footage, he can be seen to remove. The backpack bore a white patch consistent with the backpack used in Armed Robbery 3 and the one seized by police. Further, on a perusal of the CCTV footage, one can discern that the backpack is blue in colour, has a number of pockets consistent with the backpack used in Armed Robbery 3 and that seized by police.
The robber was described by his victims as speaking with an Australian accent and he left the scene on a bicycle. He can be seen to be wearing a goatee and moustache.
In the CCTV footage, one can observe the imitation firearm after it has been removed from the backpack and it appears to be of the kind used in the previous armed robberies and that seized by police although, it is not used in the horizontal position but was used to poke and point. The robber wore tight fitting, black gloves consistent with latex gloves and those seized by police. The armed robber wore runners of the kind worn in each of the previous three armed robberies. On this occasion the armed robber wore a dark coloured cap beneath the hood of his jacket.
Charge 5 – armed robbery at the milk bar in Porter Court, Deer Park on 10 July 2017
There are three separate camera angles of closed circuit television depicting this armed robbery. The robber can be seen wearing a white baseball type cap under a hood that is part of a black jacket that has the following characteristics; epaulettes, under the epaulettes reflective or shiny type material, a zip on each side of the chest and a patch or manufacturer’s marking on the left hip of the jacket at the level of the hem.
The robber carries a blue backpack that is identical to the backpack seized by police and is of the kind used in Armed Robberies 3 and 4. Each of the characteristics demonstrated in the closed circuit television of the backpack used in Armed Robberies 3 and 4 are present in the backpack depicted in the CCTV of Armed Robbery 5.
The third angle of CCTV footage is of a quality that to my mind the imitation firearm carried by the robber can be said to be identical with that seized by police from the accused’s home.
The robber is wearing black latex gloves consistent with those seized by police.
The robber is wearing runners of the kind that were worn in Armed Robberies 1, 2, 3 and 4. However, the closed circuit television images are of a quality that the shoes are seen in close up and it is open to say that they are identical to the runners seized by police from Mr Muzo’s residence on 18 August 2017.
The robber can be seen to wear a white belt that is plainly a “Crosshatch” belt which would appear to be identical with the belt as seized by police from the accused at the time of his arrest. Additionally, the robber’s trousers are low on his buttocks revealing a red/orange pair of underpants that has a yellow elastic waist band showing words; one word concludes with the letters “D A Y” and the next word commences with the letters “S U”. Seized from Mr Muzo’s property was a pair of underpants fitting this description, the complete word being “Sunday”. Further, when police executed a search warrant at the accused’s home, a number of pairs of underpants of various colours were seized, but of note is that the waist bands had the days of the week printed on them.
Additionally, the Crown will rely upon a series of CCTV clips of a blue SV6 Commodore sedan being parked near to the location of the milk bar. Further, immediately after the armed robbery, a man in dark clothing, carrying a backpack, can be seen running towards the blue sedan, getting into it and driving away. The path of the vehicle was caught on a number of security cameras from various residential addresses and each of the images are prayed in aid to identify the make and model of the motor car. As previously mentioned, the accused in his record of interview admitted that his partner owned a blue Holden SV6 sedan and that he had access to it as at the time of the fifth armed robbery. A further characteristic of the blue Holden sedan is that, when caught on CCTV, it had the characteristics set out in the statement of Acting Detective Sergeant Robert Pama (see Depositions page 88, which included a tow bar fitting). A tow bar appropriate to such a fitting was found at the accused’s home address when police executed a warrant at that place.
It must be noted that the items of clothing as seized by police and capable of being identified as either identical to or of the kind worn by the person or persons who committed the armed robberies are all mass produced items. However, it is the fact that a cap of the kind worn in the first armed robbery was seized by police at the accused’s home. Likewise, a white baseball style cap was seized from the accused’s home address. An imitation firearm made from bicycle parts was seized from the accused’s home address. An imitation firearm arguably identical to that seized from the accused’s home was used in the fifth armed robbery. The imitation firearm seized from the accused’s home was made from bicycle parts. The part of the imitation firearm that broke off during the course of the first armed robbery was identified by Mr Muzo as being a part used for a bicycle light or reflector. Mr Muzu asserts and the accused agrees in his record of interview that he borrowed bikes from Mr Muzo (See R of I Q&A 320) That part has DNA material on it and the accused’s cannot be excluded as being a donor of that DNA material.
Finally, it must be noted that as anomalous as it may seem at no stage in any of the armed robberies does the robber/s attempt to disguise himself/themselves. Equally anomalous is that there was no request made by police for the accused to participate in a line up. Accordingly, there is no evidence of police attempting to identify the robber/s by way of photo board.
Hopefully, without doing injustice to Mr Buckland’s submissions, he submitted the Crown case is a circumstantial one; one which is made up of a constellation of individual pieces of evidence that, when combined, demonstrate that there was but one man who committed each of the five armed robberies and that that man is the accused. The constellation of circumstances can generally be itemised as follows:
(1) the jacket;
(2) the Crosshatch hoodie;
(3) the Crosshatch belt;
(4) the “SUNDAY” underpants;
(5) the backpack;
(6) the runners;
(7) the caps;
(8) DNA and the object that the DNA was found on;
(9) the imitation firearm and its construction and style of use; and
(10 the accused’s access to the blue SV6 sedan.
Mr Buckland submitted that in combination each circumstance makes out the coincidence which the Crown asserts.
Mr Buckland submits that there is no prejudice to the accused as the evidence simply goes to the proof of the guilt of the accused.
Mr Buckland submitted that the charges are properly joined and that should the circumstantial evidence be permitted to be used as coincidence evidence and hence admissible in respect to each charge there was no basis for severance.
Mr McGlone of Counsel, who appears on behalf of the accused, who made submissions both orally and in writing submitted that the evidence relied on by the Crown amounted to no more than “stock in trade” evidence in respect to armed robberies of the kind the subject of the charges. To my mind this submission fails to address the physical evidence as seized by police and the evidence of Mr Muzo in respect to part of that property belonging to the accused that is capable of linking the accused to the armed robberies and therefore is anything but “stock in trade” evidence.
Further Mr McGlone submitted that for circumstantial evidence to be admitted as coincidence evidence, there needs to be a provable or empirical link to the identity of the armed robber like a photo identification, admission or conviction in respect to one of the armed robberies. Further, he submitted, that the strength of the Crown case in respect of Charge 1 would infect the case in respect to the balance of the charges on the indictment and unfairly so and justifies severance of Charge 1 from the balance of the charges on the indictment.
To my mind, Mr McGlone’s submissions misapprehend how the Crown puts its case. The imitation firearm as seized by police is linked to the accused by his admission and where it was found. The imitation firearm is constructed of bicycle parts. An imitation firearm was damaged during the course of the first armed robbery has DNA material on it and the accused cannot be excluded from being a minor contributor to that DNA material. Clothing attributable to the accused, namely the black jacket with epaulettes and zips, the Crosshatch hoodie, the Crosshatch belt, the “days of the week” underpants, the Sunshine Secondary College backpack, the runners seen in close up CCTV vision in respect to Charge 5 and those seized and attributed to the accused and those worn during the course of Armed Robberies 1 through to 4, both inclusive, being of the kind are all matters that link individually and in combination the accused to one or more of the armed robberies with which he stands charged.
Whilst there are differences between the armed robberies that I have “noted”, Mr McGlone did not press them and the application for severance misapprehends in my view the nature of the Crown case and why all charges should be heard together in the one trial.
To my mind the evidence for charges 1-5 when considered in combination with all of the evidence to be adduced by the prosecution has significant probative value and is admissible as coincidence evidence. Further, the high probative value of the evidence as a whole substantially outweighs any unfair prejudice on the accused.
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