Heng v The Queen No. DCCRM-02-195

[2003] SADC 180

Heng v The Queen
[2003] SADC 180

Judge Muecke
Criminal

1. This is an application to stay these proceedings. The applicant says that it would be an abuse of process to proceed because certain evidence sought to be adduced by the Crown is inadmissible or should not be admitted at his trial. Alternatively, there would be incurable unfairness and prejudice if that evidence is admitted.

2. The applicant was tried on what, for convenience, I shall refer to as six counts of armed robbery allegedly committed between 6 June 2001 and 26 June 2001. That trial occurred in January this year.

3. On 21 January 2003 a jury returned a verdict of guilty on count 6 (26 June 2001), and verdicts of not guilty on counts 1 (6 June 2001), count 2 (17 June 2001), count 4 (22 June 2001) and count 5 (26 June 2001). The jury could not reach a verdict on count 3 (22 June 2001).

4. At the trial the prosecution presented its case on the basis that similarities between the different offences indicated that they had been committed by the same person. The prosecution relied on the fact that the evidence which was admissible to show that the applicant committed the offence in count 6 (upon which he was found guilty) was admissible to prove that he committed the other five offences.

5. The accused’s re-trial on count 3 was listed for hearing this week.

6. At the re-trial the prosecution intended to adduce evidence of the facts and circumstances surrounding count 6 as similar fact evidence. The prosecution accepts that the applicant has no case to answer at his re-trial on count 3 if the evidence relating to count 6 is not admissible and admitted.

7. The prosecution did not intend to lead evidence of the facts and circumstances surrounding counts 1, 2, 4 and 5, on which the applicant was acquitted at his trial in January this year.

8. The prosecution accepts that the effects of the applicant’s acquittals on counts 1, 2, 4 and 5 is that the armed robberies, the subject of those charges, were committed by a person or persons other than the applicant.

9. Evidence showing that an accused has a propensity or disposition to commit a crime, or that he is the sort of person likely to have committed the crime charged, will be admissible if it is relevant as tending to show that the defendant is guilty of the offences charged for some reason other than he has committed crimes in the past or has a criminal disposition. In order to be admissible it must possess a strong degree of probative force, or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity. Such evidence may be received where there is a striking similarity between different offences or between the evidence of different witnesses.

10. In such cases the prosecution may lead evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person. The consequences would be that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he committed another.

11. However, because such evidence has a high prejudicial capacity the trial judge must, before allowing the prosecution to lead it, ask whether there is a rational view of the evidence (on count 6) that is consistent with the innocence of the applicant of the offence charged (count 3). ‘Rational’ must be taken to mean ‘reasonable’. It is only if there is no such view that one can safely conclude that the probative force of the evidence sought to be lead as similar fact evidence outweighs its prejudicial effect.

12. The principles to which I have just referred are distilled from Pfennig v The Queen (1995) 182 CLR 461 481-483 (and see Sutton v The Queen (1984) 152 CLR 528, 564; Hoch v The Queen (1988) 165 CLR 292, 294-295).

13. It was submitted by Mr Preston, of counsel for the DPP, that the trial judge must ask himself the question referred to in the context of the prosecution case (Pfennig, at 483, line 7). That meant in the context of the case and evidence the prosecution intended to adduce at trial and not in the context of other material.

14. Mr Millsteed QC, of senior counsel for the applicant, submitted that the trial judge must ask himself the question considering the whole body of the available evidence, including his general experience (see Sutton, at 549; Cheney v The Queen (1991) 28 FCR 103).

15. I consider that the contention advanced by Mr Millsteed QC is the correct one. As a matter of principle, logic and commonsense a consideration of whether there is a rational view of challenged evidence that is consistent with the innocence of the accused of the offence charged must import all facts and circumstances that are known to the trial judge, weighed according to his commonsense and reasoned judgment in regard to them.

16. Even if I am wrong as to that as a general proposition, I consider that, in the particular and unusual circumstances of this case, I should not, and could not, possibly ignore the facts and circumstances surrounding counts 1, 2, 4 and 5 that have already been the subject of a trial.

17. In this case I am bound to give the applicant the full benefit of the jury’s findings of not guilty on counts 1, 2, 4 and 5. I am bound to regard him as being the person who did not commit the crimes charged in those four counts, and that they were committed by a person or persons other than him (see R v Storey (1978) 140 CLR 364 at 372, 388, 398; Kemp v R (1951) 83 CLR 340 at 342; Mraz v R (1956) 96 CLR 62 at 67-68; R v Groves (1981) 5 A Crim R 275 at 276; Sambasivam v Public Prosecutor Federation of Malaya [1954] AC 458; R v Neville (1985) 2 QdR 398).

18. Exhibit VDD3, (a comparative chart of certain facts and circumstances relating to the six counts on which the applicant was tried in January this year) discloses certain similarities between certain of the counts. Some similarities are striking whilst others are not. The former is hardly surprising because it was the Crown case at the trial in January 2003 that the same person committed the offences in counts 1 to 5 and that the jury should be satisfied beyond reasonable doubt the applicant committed the crime in 6 and in counts 1 to 5.

19. One example is that the appearance of the jacket worn by the accused in the armed robbery which was the subject of count 6 (on which he was found guilty) is similar to the jacket worn by the person who committed the armed robbery the subject of count 4 (which was not the accused but some other person). It is also similar to the jacket worn by the person seen apparently committing an armed robbery the subject of count 3 (upon which the jury was hung and upon which the Crown now seeks to re-try the applicant).

20. Furthermore, I agree with the submissions by Mr Millsteed QC as to the similarities between the facts and circumstances of counts 3 and 4. I consider those submissions compelling.

21. Whilst it might be argued with some force that there were similarities, even some striking ones, between the facts and circumstances surrounding count 6 and those surrounding count 3, the similarities between all six counts are such that when I asked myself whether there is a rational view of the evidence in respect of count 6 that is consistent with the innocence of the applicant in respect of count 3 I am convinced that the answer is, yes, there is. I consider that, in answering that question, I am entitled to have regard to the verdicts of the jury who heard all of the evidence at the earlier trial and were satisfied, by their not guilty verdicts, that the applicant did not commit the crimes which were then the subject of counts 1, 2, 4 and 5.

22. Those verdicts support a rational view of the count 6 evidence that is consistent with the applicant’s innocence in respect of count 3, as with the four counts on which he was found not guilty.

23. Accordingly, I rule that the facts and circumstances surrounding count 6 will not be admitted at the applicant’s trial on count 3.

24. In view of that ruling, I consider that the prosecution on count 3 is foredoomed to fail and, accordingly, I order that the proceedings on count 3 be permanently stayed (see Walton v Gardiner (1992-1993) 177 CLR 378, 393; R v Smith (1996) 73 A Crim R 384).

25. If I am wrong in the Pfennig conclusion I have reached, I would have refused to admit the count 6 evidence in the exercise of my general unfairness discretion, or stayed the proceedings, because I am satisfied that the admission of the facts and circumstances surrounding count 6 would give rise to incurable unfairness and prejudice to the applicant in respect to his trial (see R v Davis [1982] 1 NZLR 585).

26. In respect of count 3 I am satisfied that in the rather unique circumstances of this case, crafting a direction to the jury which one could be confident would avoid or cure prejudice to the applicant would be extraordinarily difficult, if not impossible.

27. Directing the jury, on the one hand, that they could use the evidence in respect of the count 6 offence in considering whether they are satisfied beyond reasonable doubt that the applicant committed the count 3 offence, but only if they were satisfied beyond reasonable doubt of the circumstances of count 6, whilst on the other hand, directing them that four other armed robberies, which bore the same similarities with the offence upon which the applicant was being tried, were not committed by the applicant, would inevitably lead to a very real risk of prejudice and unfairness to the applicant, including a real prospect of the jury failing to accord to the applicant his entitlement to the full benefits of acquittals on four counts.

28. I order that the proceedings be stayed.