Heng v The Queen No. DCCRM-02-195 - [2003] SADC 180

Heng v The Queen
[2003] SADC 180
Judge Muecke
Criminal

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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] SADC 180
Decision Date: 11 December 2003

CaseChat Overview and Summary

In the case of Heng v The Queen, the applicant sought to stay the proceedings against him, claiming it would be an abuse of process to proceed with evidence sought by the Crown due to its inadmissibility or potential for incurable unfairness and prejudice. Heng was on trial for six counts of armed robbery, with a jury finding him guilty on one count and acquitting him on four others, and failing to reach a verdict on the remaining count. The prosecution intended to use evidence from the count on which Heng was found guilty as similar fact evidence for the count on which the jury was hung. The key legal issue was whether the evidence from the count on which Heng was found guilty could be admitted as similar fact evidence for the count on which the jury was hung.

The court considered whether the evidence from the count on which Heng was found guilty could be admitted as similar fact evidence for the count on which the jury was hung, taking into account the principles established in Pfennig v The Queen and other relevant cases. The court found that the trial judge must consider the whole body of available evidence, including the jury's findings of not guilty on four counts, when determining whether there is a rational view of the challenged evidence that is consistent with the accused's innocence of the offence charged. In this case, the court found that there was a rational view of the evidence in respect of the count on which Heng was found guilty that was consistent with his innocence in respect of the count on which the jury was hung. Therefore, the facts and circumstances surrounding the count on which Heng was found guilty would not be admitted at his trial on the count on which the jury was hung. The court also found that directing the jury to use the evidence in respect of the count on which Heng was found guilty while considering whether they were satisfied beyond reasonable doubt that he committed the count on which the jury was hung, whilst also directing them that four other armed robberies, which bore the same similarities with the offence upon which he was being tried, were not committed by him, would inevitably lead to a very real risk of prejudice and unfairness to Heng.

The court ruled that the facts and circumstances surrounding the count on which Heng was found guilty would not be admitted at his trial on the count on which the jury was hung and that the proceedings on that count be permanently stayed, as the prosecution was foredoomed to fail. The court also noted that even if it was wrong in its Pfennig conclusion, it would have refused to admit the count 6 evidence in the exercise of its general unfairness discretion or stayed the proceedings, as it was satisfied that the admission of the facts and circumstances surrounding count 6 would give rise to incurable unfairness and prejudice to Heng in respect of his trial on count 3.

Orders