Director of Public Prosecutions v Vincent
[2023] ACTSC 76
•8 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Vincent |
Citation: | [2023] ACTSC 76 |
Hearing Date: | 8 February 2023 |
Decision Date: | 8 February 2023 |
Reasons Date: | 13 April 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) Application to adduce coincidence evidence is dismissed. (2) The indictment should be severed to allow for two separate trials. |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to adduce coincidence evidence – s 98 of the Evidence Act – two “Events” – whether it is improbable that the events happened coincidentally |
Legislation Cited: | Evidence Act 2011 (ACT) ss 98, 101 |
Cases Cited: | Bryant v R [2011] NSWCCA 26; 205 A Crim R 531 |
Parties: | Director of Public Prosecutions ( Applicant) Christopher Lee Vincent ( Respondent) |
Representation: | Counsel L Etheredge ( Applicant) T Lee ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Legal Aid ACT ( Respondent) | |
File Numbers: | SCC 160 of 2022 SCC 161 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․On 8 February 2023, I heard an application concerning coincidence evidence and made orders dismissing the application. Reasons were reserved. Reasons now follow.
2․The accused, Mr Christopher Lee Vincent, is charged with the following offences on an indictment filed on 1 December 2022:
(a)Two counts of aggravated burglary (Counts 3 and 7);
(b)Two counts of theft (Counts 4 and 8);
(c)Three counts of dishonestly drive motor vehicle (Counts 1, 5, and 9); and
(d)Two counts of take motor vehicle without consent (Counts 2 and 6).
3․The accused is also charged with four transferred charges:
(a)Fail to stop for motor vehicle for police;
(b)Use vehicle with a deceptively changed number plate;
(c)Drive whilst disqualified; and
(d)Unlawful possession of stolen property.
4․By way of an application in proceeding filed on 1 February 2023, the prosecution seeks the following:
(a)That the prosecution be permitted to lead evidence of coincidence as set out in the Notice of Intention to Adduce Coincidence Evidence dated 17 November 2022;
(b)That the prosecution be permitted to lead evidence arising from Counts 1-9 in relation to each other; and
(c)Any other orders the Court considers appropriate.
5․The orders are sought on the ground that the evidence is admissible as coincidence evidence pursuant to ss 98 and 101 of the Evidence Act 2011 (ACT) (Evidence Act).
6․The questions of law raised are as follows: whether the evidence sought to be admitted has significant probative value; and, if so, whether the probative value of the evidence outweighs the danger of unfair prejudice.
7․For convenience, I will refer to the applicant as the prosecution and the respondent as the accused.
Legal principles
8․Section 98 of the Evidence Act sets out the following:
98The coincidence rule
(1)Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
NoteOne of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(1A) To remove any doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict coincidence evidence presented by another party.
NoteOther provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
9․Coincidence evidence under s 98 is led to persuade the tribunal of fact to draw the inference that, by reason of the contended similarities in the specified events, there is significant improbability that the events occurred coincidentally: see Dempsey (a pseudonym) v The Queen [2019] VSCA 224 at [66].
10․Striking similarity is not required for the evidence to be admitted. In R v MR [2013] NSWCCA 236 (MR), Beech Jones J stated at [77]:
…[T]here is nothing in the statutory scheme or the authorities that requires that, before evidence of the events can be assessed as having significant probative value, the events or the circumstances in which they occurred have “striking” similarities or the like.
11․The similarities relied upon may arise in different ways, and be based upon facts, circumstances, and relationships: see CV v The Director of Public Prosecutions [2014] VSCA 58.
12․The question is whether any dissimilarities in the events are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98: see Selby v R [2017] NSWCCA 40 (Selby) at [26].
13․In R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 (Gale; Duckworth), Simpson J proposed a number of questions for the Court in considering a coincidence application. That approach has been followed in this Court in R v Kandola [2016] ACTSC 395 where Murrell CJ outlined at [14] the relevant questions for the Court:
On an application to adduce coincidence evidence, the questions for the court are:
(a)Has the tendering party identified a particular act or particular state of mind that is in issue?
(b)What are the two or more events that are said to be similar?
(c)Assuming that the factfinder accepted that the events in question occurred, are the similarities in the events or the circumstances in which they occurred such that the factfinder could consider that it was improbable that the events were merely coincidental?
(d)If the factfinder accepted that coincidence was improbable, would this have significant probative value, that is, would it be significant, important or influential to proving that the accused did the particular act or had the particular state of mind that is in issue?
14․As to the balancing exercise under s 101 of the Evidence Act, in R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 the court stated at [73] that “prejudicial effect” conveys the idea of “harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way” (also see Xie v The Queen [2021] NSWCCA 1; 386 ALR 371 at [782]).
15․The prosecution submitted that the recent amendments to s 101 lower the bar for the admission of coincidence evidence. I have outlined those recent amendments in R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193.
Prosecution submissions
16․The prosecution submitted that the key issue in this matter is the involvement of the accused in two sets of burglaries: Event 1 and Event 2. The detail of each is outlined in the prosecution’s Notice of Intention to Adduce Tendency Evidence. In summary, the prosecution alleges the following:
(a)Event 1: The accused drove a stolen Kia Sorento to a car park where he stole a Great Wall utility vehicle and drove it to the Ion DNA Electric Vehicles store. Three other persons were present. The accused used an angle grinder on the front door lock of the store. One other person used a crowbar to open the door. The accused and others entered the store and took four electric scooters and one electric skateboard, which they placed in the tray of the utility vehicle. The accused and others then drove away.
(b)Event 2: The accused stole a Holden Commodore utility vehicle. The accused then drove it to Canberra Electric Bikes store. Three other persons were present. The accused and another person used an angle grinder on the front door lock of the store. The accused and two others then used a crow bar to open the door. The accused and other persons entered the store, took eight electric bikes and placed them in the back of the utility vehicle tray and in a Mitsubishi van which had been driven there by other persons. The accused and others then drove away.
17․The prosecution seeks to invoke coincidence reasoning to establish the accused was involved in both events. Other evidence links the accused to each event and, when considered with coincidence reasoning, the prosecution submitted this establishes that the accused was the person who committed the acts alleged.
18․The similarities relied upon by the prosecution between Event 1 and Event 2 are set out in a detailed table in the prosecution’s written submissions. Broadly, both events involved four persons involved in a burglary; an electric vehicle store; the theft of similar objects (in Event 1, eight scooters and an electric skateboard; in Event 2, eight electric bikes); mode of entry involving an angle grinder used on a lock and the door forced open with a crowbar; offenders arriving in a stolen vehicle (different vehicles related to each event), the burglaries occurring around the same time in the early morning, offenders wearing hooded jumpers and face coverings; and similarity in appearance of the person alleged to be the accused including similar clothing in each event.
19․The prosecution relied on the following circumstantial evidence linking the accused to both events:
(a)The accused’s recent possession of the stolen red Holden Commodore utility located with the respondent by police at an address in Wanniassa at 11:30am on 20 February 2022.
(b)At 11:30am on the same day, the accused was filmed by police to be wearing black and white Adidas sneakers and black tracksuit pants with a lower left leg design/print that catches the light.
(c)Upon the accused’s arrest on 4 March 2022, the respondent was wearing a navy blue coloured baseball cap with a white Rusty logo on the front.
(d)Dash camera footage of the stolen red Holden Commodore utility being driven on 19 February 2022 by a person the prosecution assert is the accused through visual and audio comparisons and voice recognition evidence.
20․The prosecution submitted the circumstances of the two events are highly similar and that the combination of these circumstances and their similarities make it highly improbable the events occurred merely by coincidence. The prosecution referred to the improbability of two random and completely different groups committing these two similar kinds of burglaries with reference to similarities as outlined above.
21․The prosecution submitted it is much more likely that the same group or subgroup of offenders committed the two burglaries.
22․The prosecution submitted that other circumstantial evidence linking the accused to the burglaries, combined with the coincidence reasoning, establishes the accused was involved. The coincidence reasoning which invokes s 98 lies in the similarities between each event such that it is improbable that each event involved a Caucasian male perpetrator wearing the same clothing as described above, other than the accused.
23․The prosecution submitted that if the fact finder is satisfied the coincidence is improbable, the evidence would have significant probative value in that it would be significant or important in proving the accused was involved in both events and did the acts alleged. The prosecution submitted that the similarities between the events are not to be assessed individually but in combination with each other and other evidence in the case. The force of the combination of similarities in the events is capable of significantly advancing the fact finder’s determination of whether they are satisfied the accused was the one alleged offender in the group at each event.
24․The prosecution submitted that it would be open to the fact finder to reason that it was improbable that the collection of identified similarities would exist if the two offenders were not the same. The conclusion has the capacity to be significant in assessing the prosecution’s circumstantial case.
25․With regards to the test under s 101, the prosecution distinguished this case from Patel v The Queen [2012] HCA 29; 247 CLR 531, where the evidence of uncharged acts was likely to overwhelm the fact finder. The prosecution submitted there is no unfair prejudice to the accused.
26․The prosecution submitted that the mere fact that the admission of coincidence reasoning may make it more likely the accused will be found guilty of the charges does not create a danger of unfair prejudice. The prosecution further submitted that there is nothing to suggest the evidence, if admitted, would be misused by the fact finder in some way, be given more weight than it deserved, divert the fact finder from their task, or be evaluated through the application of some illegitimate or illogical reasoning: see R v BC (No 3) [2020] ACTCA 49. The prosecution submitted it would not involve an emotional response that would cloud the fact finder’s assessment of the evidence.
27․Finally, the prosecution submitted any risk of unfair prejudice can be ameliorated through appropriate directions.
Consideration
28․The Evidence Act has replaced the common law concept of ‘similar fact’ evidence with two overlapping rules; the tendency rule and the coincidence rule. Both rules, like the common law principle of similar fact evidence, are exceptions to the general principle that the prosecution in a trial of an accused for a particular offence cannot put forward evidence of other criminal offences allegedly committed by the accused.
29․As referred to earlier, the admissibility of coincidence evidence is governed by s 98 of the Evidence Act. It requires two preconditions: (a) the giving of notice: see R v Zhang [2005] NSWCCA 437; 227 ALR 311; Bryant v R [2011] NSWCCA 26; 205 A Crim R 531 and, (b) that the evidence has “significant probative value”. No issue of notice is raised in this case.
30․The approach to the admissibility of coincidence evidence was usefully discussed in DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at [6]-[9], [56], [72]-[82]. See also Gale; Duckworth at [29]-[31] and R v Matonwal & Amood [2016] NSWCCA 174; 94 NSWLR 1 at [70]-[76].
31․As discussed earlier, if the evidence is admissible under s 98, then s 101 must be applied, which is concerned with balancing its probative value against its prejudicial effect. The question posed by s 98 turns on improbability reasoning that something was a coincidence: see Selby at [24]-[26]; Ceissman v R [2015] NSWCCA 74 at [42]. The improbability that something was a coincidence is not displaced by the fact that the two events bear some dissimilarities. The question is whether the dissimilarities “undercut” the improbability of coincidence; do the dissimilarities detract from the strength of the inferential mode of reasoning allowed by s 98: Selby at [24], [26].
Similarities
32․The prosecution submits that the circumstances of the two events “are highly similar”. The previous common law phraseology of “striking similarity” has not been used. Nevertheless, the phrases “strikingly similar” and “highly similar” are to not dissimilar effect, connoting a high degree of similarity.
33․I note the example in DPP v Boardman (1975) AC 421 that if a burglar goes in through a ground floor window, that will not constitute a striking similarity, but if the burglar leaves an esoteric symbol painted in lipstick on the mirror, there may be a striking similarity in the common law sense.
34․The prosecution expressly referred to reasoning in the case of MR at [84] that the same group of offenders committed each of the burglaries: see also R v Hall [2019] ACTSC 350 (Hall) and R v Cook [2021] ACTSC 270. I note in Hall, a distinction was drawn by Mossop J between coincidence evidence based on similarities within the scope of s 98 and other evidence which relies on a coincidence of circumstances to establish a circumstantial case.
35․This Court must determine whether the posited similarities point to a distinctive group of offenders or any one offender in particular.
36․As referred to earlier, the similarities relied upon by the prosecution are summarised in a table. A consideration of the evidence intended to be relied upon by the prosecution for the purported coincidence identifies the following.
37․It is agreed that CCTV footage at Ion DNA Electric Vehicles for Event 1 shows three males arrive and actively participate in the burglary, and there is another person who remains in a car but does not actively participate.
38․Event 2, according to the relevant witness at Canberra Electric Bikes, was committed by four people; that is three males in their mid-30s to mid-40s, one with a “visible limp”; and a short woman in her late 20s to early 30s. All of the participants enter the premises and remove stock from the building.
39․While the offences occurred at electric vehicle stores (one for bikes, and one for scooters), all such items are valuable items for theft. The similarity that both are ‘electric’ is not necessarily telling though I note in this context I must not analyse the circumstances in isolation but rather the combination of similarities.
40․It must be considered that the mode of entry to the stores in each event involves force by way of electric and pry tools. However, this is a not uncommonly used method for the commission of burglaries, in order to gain access to secured premises.
41․The prosecution emphasised that the offenders in each event arrived at the premises in stolen motor vehicles. Again, this is not uncommon in burglaries and, again, I do not analyse any factor in isolation.
42․Further, I note in Event 1 the offenders arrive at Ion DNA Electric Vehicles in a single vehicle. For Event 2, two vehicles are used to arrive at Canberra Electric Bikes, both a utility vehicle (a different vehicle to that used in Event 1), as well as a white van.
43․Nor does the fact of commission of the offences in the early hours of the morning add greatly to the assertion of coincidence evidence.
44․It is accepted that the wearing of High Visibility (Hi Vis) gloves is of significance in terms of coincidence. As to some form of head coverings being worn by offenders, that is not uncommon.
45․I note that these events occurred during a time in which public health officials encouraged the community to wear covid masks.
46․I am not persuaded by the prosecution submission that both events occurred in Canberra is highly relevant to coincidence evidence. I further note that Event 1 occurred in Fyshwick and Event 2 in Phillip. Further, the events took place on different days of the week.
47․I note the prosecution’s submissions concerning sports sneakers of the type alleged to have been worn by the accused and the sports clothing with printing down one leg or logos on the front of tops and the baseball cap.
48․I have taken all factors discussed above into account in combination. Nevertheless, in my view overall there is not “high” similarity. I am not persuaded that by reason of the contended similarities it is improbable the events occurred as coincidences. I am fortified in this conclusion taking into account the following additional matters.
49․Identity is an issue in this case.
50․The Prosecution Case Statement describes the appearance of the offender, who it says is the accused, immediately prior to Event 1 at the time of the attendance at Elevate Constructions, as follows at [6]:
The driver exited the vehicle wearing a dark blue coloured baseball cap with a white Rusty logo on the front, a black hooded jumper with a white rectangle logo on the left chest, black tracksuit pants with writing/print up the left leg, black gloves and black and white Asics sneakers.
51․I note “Incident 5” of the Prosecution Case Statement which forms part of the chain of incidents that culminate in Event 2. In Incident 5, it is stated a person, alleged to be the accused, engages in certain activities. The Prosecution Case Statement describes the appearance of the person who it says is the accused for Incident 5, at [20], as wearing a pink hooded jumper in addition to his other clothing.
52․I further note the attendance of police upon the accused in the hours after Event 2, where the Prosecution Case Statement at [38] describes the appearance of the accused as wearing a khaki-coloured t-shirt with the logo ‘Maplewood Supply’ in addition to the other clothing.
53․Finally, I note Senior Constable Ferraro’s evidence in her statement is to the effect that she was investigating a series of aggravated burglaries targeting e-scooter and e-bike stores. Given the evidence of a series of burglaries the improbability of coincidence is further undermined. The existence of the two ‘Events’ in question must be seen in the context of the broader series of events.
54․I do not accept that the similarities identified by the prosecution for Event 1 and Event 2 are such that a finder of fact could properly consider it improbable that the events were merely coincidental. The similarities, both when considered individually and cumulatively, are not sufficient to satisfy the test.
Orders
55․Consequently, on 8 February 2023, I made the following orders:
(1)Application to adduce coincidence evidence is dismissed.
(2)The indictment should be severed to allow for two separate trials.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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