Miles v The Queen
[2013] ACTCA 52
•20 December 2013
CHRISTOPHER MILES v THE QUEEN
[2013] ACTCA 52 (20 December 2013)
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal to Court of Appeal from interlocutory order of trial judge – whether appeal lies against ruling on evidence – matter not raised by parties.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – matters to be considered in granting leave to appeal interlocutory decision in criminal proceedings – whether decision attended by sufficient doubt to warrant appellate intervention – whether any substantial injustice would result from refusal of leave – whether grant of leave would inappropriately fragment trial process – whether exceptional circumstances justified grant of leave.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision in criminal proceedings – conclusions open to trial judge – decision not attended by sufficient doubt to warrant appellate consideration – no injustice would result from refusal of leave – grant of leave would inappropriately fragment trial process – no exceptional circumstances justifying grant of leave – leave to appeal refused.
CRIMINAL LAW – EVIDENCE – Circumstances in which evidence of events improbable to have happened coincidentally may be admitted – s 98 of the Evidence Act 2011 (ACT) – accused charged with three robberies with various similarities – Crown application for evidence of each robbery to be admissible as “coincidence” evidence in relation to the other robberies – defence application for separate trials if Crown application dismissed – whether probative value of coincidence evidence substantially outweighed any prejudicial effect of the evidence – nature of prejudice required to be considered – no unfair prejudicial effect identified – no risk of properly instructed jury reasoning inappropriately having regard to nature of coincidence evidence – evidence admissible on coincidence basis – no need to consider application for separate trials.
Evidence Act 2011 (ACT), ss 98, 101
Evidence Act 1995 (NSW)
Dao v The Queen (2011) 81 NSWLR 568
DSJ v R; NS v R (2012) 259 FLR 262; [2012] NSWCCA 9
R v Miles [2013] ACTSC 48
The Queen v AI, AD and JR [2013] ACTCA 16
Odgers (Uniform Evidence Law (10th ed, Thomson Reuters, 2012))
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 15 – 2013
No. SCC 395B – 2011
Judge: Penfold J
Court of Appeal of the Australian Capital Territory
Date: 20 December 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 15 of 2013
) No. SCC 395B of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CHRISTOPHER MILES
Appellant
AND:THE QUEEN
Respondent
ORDER
Judge: Penfold J
Date: 22 July 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave to appeal the ruling of the trial judge is refused.
IN THE SUPREME COURT OF THE ) No. ACTCA 15 of 2013
) No. SCC 395B of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CHRISTOPHER MILES
Appellant
AND:THE QUEEN
Respondent
Judge: Penfold J
Date: 20 December 2013
Place: Canberra
REASONS FOR JUDGMENT
Introduction
Christopher Miles was charged with three counts of aggravated robbery, and one count of dishonestly taking a motor vehicle committed on the same day as, and in connection with, one of the robberies. The robberies were committed respectively in July 2009, August 2009 and October 2010. The motor vehicle offence was, as noted, incidental to one of the robberies and no question arising in this matter affected that offence differently from its effect on the robbery concerned, so I shall not refer to the motor vehicle offence again.
The charges were included in a single indictment, and the trial was set down to begin on 29 July 2013.
The Director of Public Prosecutions (DPP), by application dated 21 December 2012, sought a pre-trial ruling to the effect that evidence in relation to each count of the indictment was admissible in relation to each other count as coincidence evidence.
The accused applied for an order that, if the Crown’s application for the evidence to be admissible on a coincidence basis were refused, there should be a separate trial in relation to each aggravated robbery, on the ground that
each allegation of criminal conduct has the capacity and likely effect of leading a jury into an impermissible reasoning process based on the character of the accused.
On 21 March 2013 the trial judge, Nield AJ, ruled that specified evidence was admissible in the forthcoming trial “on the basis that it is improbable that these events happened coincidently”, and provided written reasons for that ruling; R v Miles [2013] ACTSC 48. His Honour did not need to rule on the accused’s application.
Application for leave to appeal
The application to Nield AJ was heard on 20 February 2013 and the decision was handed down on 21 March 2013. An application for leave to appeal was filed on 28 March 2013, and initially came before me on 17 April 2013. The DPP opposed the application for leave to appeal. I adjourned the matter to 24 April 2013 for hearing, but on that day the matter was further adjourned, at the prosecution’s request, because prosecution counsel had only come into the matter very late. Orders were made for the exchange of written submissions, and a mention was set for 11 July 2013, having regard to the unavailability of the appellant’s counsel, who was recovering from surgery, until 23 July at the earliest. The matter was then mentioned before me on 10 July 2013, at which point it was agreed that I should determine the matter on the basis of the written submissions that had already been filed. On 22 July 2013 I gave a decision refusing the accused’s application for leave to appeal, and said that I would publish reasons later. These are my reasons.
Competence of application
I note first, although it was not raised by the respondent, that there may be a question about whether an appeal lies against his Honour’s ruling even with leave.
In Dao v The Queen (2011) 81 NSWLR 568, the New South Wales Court of Criminal Appeal (Spigelman CJ, Allsop P, Simpson, Kirby and Schmidt JJ) said that a ruling on evidence was not even an interlocutory order such that it could be appealed against (see in particular Simpson J at [122]). In that case the Court considered the issues raised by the trial judge’s ruling only because his Honour had made consequential orders refusing separate trials. In the current case there had been no consequential orders made that needed to be dealt with.
However, since this point was not taken, my decision was made on the substance of the accused’s application.
Tests for grant of leave
Because the matter proceeded as an application for leave to appeal from an interlocutory order, attention was drawn to the principles for determining an application for such leave, and in particular for determining an application for leave in a criminal matter. The respondent made the following submissions:
5.The principles governing application for leave to appeal were recently set out in The Queen v AI, AD and JR [The Queen v AI, AD and JR [2013] ACTCA 16]. In that case, the Court referred to what Lander J said in Aon Risk Services Australia Ltd v ANU [Aon Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388 at 406; [126]-[127]]:
Where a court is called upon to consider the grant of leave to appeal from an interlocutory order, two matters will ordinarily need to be addressed. First, whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a court of appeal. Secondly, whether a substantial injustice would result if leave were refused on the assumption that the decision is wrong ... [L]eave to appeal will be more readily granted where the interlocutory order complained of has determined the substantive rights of the party.
6.The court also referred to Kola v The Queen [Kola v The Queen [2006] ACTCA 23] where Crispin P said at [5] in granting leave to appeal from an interlocutory ruling concerning the validity of a search warrant:
The second issue that arises is whether leave to appeal is warranted. It seems to me that there are two observations which should be made about that. First, it is common ground that the resolution of the challenge to the validity of the warrant may be decisive of the trial and that it is in the public interest for the matter to be resolved before the trial commences. Second, the legal issues that arise for resolution on the proposed appeal are serious and of potential importance to other cases.
7.The requirement in Aon v ANU – which was of course a civil case – that the decision complained of be attended by doubt is subject to a further consideration in a criminal context. The High Court has frequently observed to the effect that that the “fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances” [Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors (1994) 120 ALR 193].
8.The public policy reasons for not fragmenting the criminal trial process generally and in this trial have been clearly outlined in R v Elliot [sic] [R v Elliott (1996) 185 CLR 250], see below.
9.There is clear line of authority, including authority from the High Court, confirming the position that the criminal trial process should not be fragmented and this is “so powerful a consideration” [Yates v Wilson (1989) 168 CLR 338 at 339], the Applicant must demonstrate that exceptional circumstances exist in granting leave to fragment the criminal trial process.
The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows:
(a)Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b)Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c)Whether a grant of leave would inappropriately fragment the criminal trial process.
(d)Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
Is the decision attended by sufficient doubt to warrant appellate consideration?
For the purpose of considering whether the trial judge’s decision is attended by doubt, it is necessary to outline the nature of the evidence in dispute. I considered this matter, as did counsel in their written submissions, on the basis that the evidence in question was in fact coincidence evidence, but I shall add some comments about its status as coincidence evidence at the end of this judgment. I note first that “coincidence evidence”, although a convenient label which I shall use in this judgment, is a potentially confusing description, given that evidence sought to be admitted for reasons related to the likelihood of coincidence must be shown, in effect, to be unlikely to reflect mere coincidence.
The DPP expected to be able to lead evidence to the following effect:
(a)The three robberies with which the accused was charged were each carried out by two masked men.
(b)In each case, one of the men was taller than the other.
(c)In one robbery, the two men addressed each other as Bill or Phil, and in the other two robberies one of the men addressed the other man as Bill.
(d)In each of the 2009 robberies, the hands of the victims were bound with what the Crown described as “distinctive” white plastic cable ties.
(e)In the first 2009 robbery and in the 2010 robbery, one of the men carried a rifle.
(f)Ivan Ramos has admitted being one of the offenders in each robbery, and has named the accused as his co-offender.
(g)The accused is taller than Mr Ramos.
(h)In January 2011 police found white plastic cable ties in a drawer in the kitchen of the accused’s home.
(i)The white plastic cable ties found in a drawer in the kitchen of the accused’s home were manufactured by the same company that manufactured the cable ties used in the 2009 robberies.
(j)In March 2011 police found a “heavily rusted” rifle wrapped in fabric and contained in two plastic bags in a pile of grass clippings in the enclosed yard of the accused’s home.
There appeared to be no dispute that all this evidence was relevant:
(a)in the case of evidence about a particular robbery – to that robbery; and
(b)in the case of evidence about items found in the accused’s home – to robberies in which items similar to the found items were used.
The issue before the trial judge seemed to have been whether certain evidence about any particular robbery was relevant to any other robbery as coincidence evidence, and if so, whether the probative value of that evidence substantially outweighed any prejudicial effect of the evidence upon the accused, so as to justify the court in admitting that evidence in relation to the other robbery.
The evidence eventually identified by the DPP as coincidence evidence was the evidence specified at [13](a) to (e) above, in summary that the three robberies were carried out by two masked men, one taller than the other, that one or both of the robbers addressed the other as Bill or Phil, that two robberies involved the use of “distinctive” cable ties and that two robberies involved a robber carrying a rifle.
Sections 98 and 101 of the Evidence Act 2011 (ACT) are as follows:
98 The 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.
(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.
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
In considering the DPP’s application, Nield AJ applied principles expressed (in relation to the Evidence Act 1995 (NSW)) in DSJ v R; NS v R (2012) 259 FLR 262; [2012] NSWCCA 9 (DSJ) by members of the New South Wales Court of Criminal Appeal.
His Honour first rejected a submission from counsel for the accused that for evidence to be admissible as coincidence evidence, the similarities between the events or circumstances needed to be “striking”, noting that section 98 of the Evidence Act, which defines coincidence evidence, does not require more than “similarities” between the events or the circumstances in which they happened, or both. The Evidence Act test for coincidence evidence is not the degree of similarity between the various events or circumstances but whether, having regard to those similarities, “it is improbable that the events happened coincidentally”. Clearly, however, the less striking or distinctive the relevant events were, the less likely it is that a court will consider that it is improbable that they happened coincidentally. For instance, the fact that each of two robberies was committed by a man would not strike anyone as an improbable coincidence. The fact that each of two robberies was committed by an elderly one-legged woman might well seem unlikely to have happened coincidentally.
The evidence in this case, being that each of three robberies was committed by two men one of whom was taller than the other, and at least one of whom addressed the other in a similar way would, depending on the area and timeframe within which the three robberies were committed, in my view be at best relatively weak coincidence evidence, but coupled with the other evidence identified as coincidence evidence that is similar for different pairs of the three robberies together, could allow a finding that it is improbable that the similarities in the various aspects of the three robberies happened coincidentally.
The trial judge then considered whether the claimed coincidence evidence, by itself or having regard to other evidence to be adduced by the DPP, would have significant probative value (DSJ at [48]).
The other evidence his Honour took into account was the evidence set out at [13](f) to (j) above, in summary, Mr Ramos’s evidence of the accused’s involvement in all three robberies, the respective height of Mr Ramos and the accused, and evidence linking the accused with the cable ties used in two but not all three of the robberies, and with the rifle carried during two but not all three of the robberies.
The evidence expected to be given by Mr Ramos would have been significant. The evidence of the respective heights of Mr Ramos and the accused would, of itself, go no further than not excluding the possibility that the accused is the other offender. The evidence of the cable ties found in the accused’s home had the potential to link the accused with each of the first two robberies, and the evidence of the rifle found in the accused’s backyard may have linked him with the first and last robberies.
As well, on the basis of the description of the three robberies provided by the trial judge in his reasons, it was possible that the evidence given at trial would reveal further similarities in the way in which the three robberies were committed.
In the course of considering whether the relevant evidence had significant probative value, the trial judge considered the question whether the coincidence evidence, either alone or together with other evidence, suggested an alternative explanation inconsistent with the accused’s guilt; that question was dealt with in DSJ at [56] and [78] to [80], as follows:
56. Assessment of the probative value of the evidence, whether for the purposes of ss 97, 98, 101 or 137 of the Evidence Act, does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil at [60]. Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence. See also Lodhi v The Queen (2007) 179 A Crim R 470 at [174]-[177]; R v Mundine (2008) 182 A Crim R 302at [33] where this Court said:
“probative value” is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact - or the contribution it might, if accepted, make to that resolution ... to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.
...
78. In this appeal the Crown has conceded that, in performing the task under s 98, a trial judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the judge’s view, rob the evidence of its otherwise cogent capacity to prove the Crown’s case? If it does not, the trial judge may safely conclude that the evidence has significant probative value.
79. In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole.
80. Secondly, the trial judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt.
Counsel for the accused submitted that his Honour failed to consider the alternative inference that the similarities among the three robberies reflected only Mr Ramos’s admitted involvement in all three, and failed to recognise that the availability of this alternative inference reduced the probative value of the coincidence evidence, presumably to a level at which it should not have been admitted. The trial judge did in fact consider an alternative inference available from the totality of the evidence that he took into account, an approach that would seem to be appropriate having regard to the comments made by Whealy JA in DSJ at [79] and [80] (quoted at [25] above).
The trial judge, having considered not just the coincidence evidence but also the expected evidence of Mr Ramos and the evidence directing linking the accused with aspects of individual robberies, concluded that the only alternative explanation for the totality of the evidence was that Mr Ramos was lying and that the cable ties and rifle had been maliciously planted in the accused’s home. Although he did not state this conclusion explicitly, it is implicit in his Honour’s remarks that he did not regard that alternative explanation as a real possibility but as a fanciful one (see Whealy JA at [79], quoted at [25] above). Presumably, such an alternative explanation would be able to be raised on behalf of the accused during the trial and tested in cross-examination of relevant witnesses.
Having regard to the evidence that was expected to be added to the coincidence evidence, especially the expected evidence of Mr Ramos, and noting his Honour’s consideration of alternative explanations, I did not consider that it was unavailable to Nield AJ to find that the totality of the evidence identified would have significant probative value in the trial.
Finally, his Honour considered whether the probative value of the evidence he was dealing with outweighed its prejudicial effect. At that point, it seems to me, his Honour may have mis-stated the nature of the question, when he said:
24.I accept that the “coincidence evidence” referred to in paragraph 17 above will have a prejudicial effect upon the accused. Evidence presented by the Crown to a judge in a judge without a jury trial or to a jury in a jury trial is prejudicial to an accused person because it is presented to secure a conviction of the accused person for having committed an offence. The question is, “does the probative value of the evidence substantially outweigh the prejudicial effect?”
His Honour was correct in reflecting the fact that the balancing test prescribed by s 101 refers only to prejudice, rather than “unfair prejudice” as mentioned in s 137 of the Evidence Act. However, if the reference to the prejudicial effect of the evidence was intended to require only a consideration of the potential for the evidence to lead to a conviction, then the probative value (which in this context effectively also relates to the likelihood of the evidence leading to a conviction) could not exceed the prejudicial value of the evidence, and would necessarily be outweighed by the prejudicial value in any case in which the evidence also carried prejudicial value unrelated to its probative value. This suggests that the evidence could never be admissible, because the probative value could never outweigh the “fair” prejudicial value, let alone substantially outweigh it.
Odgers (Uniform Evidence Law (10th ed, Thomson Reuters, 2012))(Odgers) at 516 points out the absence from s 101 of a requirement that the prejudice be “unfair”, in contrast with s 137, but notes:
Despite this, it would be absurd if the concept of “prejudicial effect” applied simply on the basis that the evidence tended to prove the guilt of the defendant, thereby “prejudicing” the defendant’s prospects of acquittal. The concept should be understood in substantially the same way as “unfair prejudice” in s 137, albeit with an emphasis on the way that the evidence may, rather than necessarily will, impact adversely on the defendant. While prejudicial effect is often inevitable (so that the tendency/coincidence evidence would almost invariably require “a strong degree of probative force” to be admissible even under the less onerous common law balancing test), the degree, and the level of unfairness to the defendant, will vary from case to case. The ALRC discussed the potential prejudicial effect in detail. The primary dangers are that the jury may be influenced to convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence; may too readily accept other prosecution evidence adduced to prove guilt; and may be distracted from the central issues in the trial. (citations omitted)
However, despite framing the question as he did, his Honour then accepted submissions by the DPP that specifically addressed the risks of “unfair” prejudice. On the assumption that the “prejudice” that flows directly from the probative value of the evidence should not in fact be weighed against the probative value, I could not see any basis for saying that his Honour’s conclusion on that question was attended with doubt.
I note also Nield AJ’s conclusion to the effect that the relevant evidence had no particular prejudicial effect unrelated to its probative value, which seemed to have been a conclusion open to him. I could not see anything in the evidence that would have stirred the jury’s emotions or induced the jury to reason irrationally or otherwise improperly against the accused. As to the possible prejudicial effects identified in Odgers and quoted at [31] above, I could not see any reason to expect that a properly instructed jury would be inappropriately influenced towards findings of guilt by the coincidence evidence in this case.
I was satisfied that the trial judge’s decision was not attended by sufficient doubt to warrant consideration by a Court of Appeal.
Would any substantial injustice result from a refusal of leave?
Counsel for the accused made the following submission in relation to the risk of substantial injustice if leave were refused:
Failure to determine this matter on an interlocutory basis would have the following effect:
a.an unfair trial of the accused on three sets of offences would be conducted;
b.a finding of guilt on any count would be laid open to challenge on the matters articulated in this application;
c.remission on appeal would then involve up to a further 3 sets of trials being undertaken resulting in a highly fragmented process and the wastage of the first trial dates;
d.the remission would have the corresponding effect of excessive delay of the accused’s trials
This submission describes the maximum inconvenience that would result if:
(a)leave to appeal were refused;
(b)the accused were found guilty of any of the robberies;
(c)the accused appealed the guilty verdict or verdicts;
(d)the accused’s appeal were upheld; and
(e)new trials were ordered.
I note in passing that the risk was of three further trials rather than three further sets of trials.
The submission did not, however, appear to describe a substantial injustice to the accused. To the contrary, the admittedly significant inconvenience that could be caused by the series of events outlined arose because of the very fact that if the trial proceeded initially in accordance with the ruling of the trial judge, the accused would have an opportunity to address any injustice done to him by challenging any guilty verdict reached in that trial.
It may be true that in some circumstances a sufficient degree of inconvenience, delay and cost to an accused could of itself produce injustice, but I was not convinced that this was the position here.
Would granting leave inappropriately fragment the trial process?
In The Queen v AI, AD and JR [2013] ACTCA 16, the ACT Court of Appeal made the following comments about fragmentation of the trial process:
20.The High Court has made it clear that in criminal matters, appeals from interlocutory decisions during the proceedings will only be entertained in exceptional circumstances. For example, in Yates v Wilson (1989) 168 CLR 338 at 339, a Full Court of the High Court said:
It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate’s decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.
Clearly, however, as pointed out by Hall J in Khalil v His Honour, Magistrate Johnson and Anor [2008] NSWSC 1092 at [117], this caution about such fragmentation would be more pronounced where a hearing of proceedings has actually commenced.
21.This case does, however, appear to us to be exceptional. The hearing has not commenced and, indeed, the appeal provides an opportunity to re-constitute a trial that, by the severance of the trials of the accused, has itself been fragmented. Further, the interlocutory decision is one that, once implemented, could never be corrected on appeal, and it is not even clear that it could be the subject of a reference appeal under s 37S of the Supreme Court Act 1933 (ACT) aimed at correcting the ruling, as was suggested in R v Elliott (1996) 185 CLR 250 at 257. Thus, we do not accept, as submitted by the respondents, that the fact that the order the subject of the application for leave is an interlocutory order requires us to refuse that leave.
No submissions were made to me on behalf of the accused to the effect that a grant of leave would not fragment the trial process, but counsel said that he:
adopts the criteria set out in R v AI, AD and JR ... for the granting of leave to appeal in the case of an interlocutory order such as the present.
Counsel did not explain how that authority supported his application for leave to appeal.
Given the timing of the forthcoming trial, and the impossibility of having the matter dealt with by the Court of Appeal before the scheduled start of that trial, it was clear that a grant of leave would have required the vacation of the listed trial date. Whether, as a result of the Court of Appeal’s ultimate determination, one or three trials were subsequently required, there would have been significant delay in the conduct of those trials, taking account of the time that would have been required to finalise the Court of Appeal process and of the normal wait for available dates for the trial or trials (shorter than it has been in recent years but still likely to be at least six months).
It was clear that a grant of leave in this case would fragment the trial process, and for no benefit except the chance of reduced inconvenience that would result from a Court of Appeal determination that there should be three separate trials being made before rather than after a single trial had been conducted.
Were there special circumstances justifying the grant of leave?
Counsel for the accused did not make any submissions explicitly directed to the question whether there were any special circumstances for granting leave to appeal in this case, but he did assert that there were important questions to be answered in this appeal. His submission was as follows:
The primary legal issues, relating to the assessment of probative value, have not yet been determined by the High Court. The principles set out in DSJ require guidance in terms of their application, in particular in consideration of the process of the identification of how alternative inferences may be used in the assessment of the reduction of probative value and the role of other evidence in the proceedings to assess probative value.
I express no view about whether these issues in fact remain as unclear as counsel suggested. However, I note that to the extent, if any, that these issues do require further clarification, that clarification would be far more effectively provided in the context of consideration of an actual trial that has taken place (enabling an analysis of real evidence as given rather than predicted evidence described in general terms, and of how such evidence should be assessed in the context of claims about coincidence), than in the context of a proposed trial where all that can be considered is, in general terms, the evidence that the DPP expects to emerge.
The claimed need for further guidance about the assessment of probative value and the proper treatment of alternative inferences did not seem to me to be an exceptional circumstance justifying a grant of leave to appeal in this case.
Conclusion
For the reasons set out above, I concluded that leave to appeal the trial judge’s ruling should be refused.
Other matters
There is one further comment I should make arising out of the approach taken by the trial judge and both counsel to the evidence considered in this matter.
The significance of coincidence evidence in a case of this nature, as far as I understand it, is not that similarities between several events such as the robberies in this case can of themselves establish, or help in establishing, the guilt of a particular accused, but that they may enable an accused who can be otherwise linked to one or more of the events to be linked to other events by evidence of similarities between that firstmentioned event and the other events.
In this case, the similarities in the three robberies may be accepted, as they were by the trial judge, as improbable to have arisen by coincidence – but this does not prove that any of them was committed by any particular person. Rather, the similarities may allow an accused shown to have committed one or two of the robberies to be linked to the remaining robberies or robbery by the similarities between them.
In this case, the evidence said to link the accused to the three robberies fell into two categories:
(a)The evidence of Mr Ramos that the accused was his co-offender in each robbery.
(b)The evidence of the cable ties linking the accused to two of the three robberies and the evidence of the rifle linking the accused to two of the three robberies (but not the same two).
If the jury accepted the evidence of Mr Ramos that the accused was the co-offender in each robbery, then (on the evidence as it was identified to me) the similarities of the three robberies would be unlikely to make any difference to the jury’s assessment of the accused’s guilt. If Mr Ramos’s evidence turned out to be unconvincing, or if the jury was looking for corroboration of his evidence, then the similarities between the three robberies should only have become relevant if the jury were satisfied that the evidence of the cable ties or the rifle was sufficient to link the accused to one or more of the robberies. For instance, if the jury were convinced that the cable ties and the rifle found in the accused’s home linked him to the robbery involving the use of cable ties and the presence of a rifle, they could then consider the identified similarities between that robbery and each of the other two robberies.
The jury would need to be instructed, however, that the similarities between the three robberies could not be used against the accused at all unless and until they accepted other evidence linking the accused to one or more of those robberies. I cannot see that a properly instructed jury would have any difficulty grasping that concept, and so the risk that the jury would engage in impermissible reasoning based on the character of the accused (however that reasoning would run), as submitted to the trial judge by counsel for the accused, seemed to me to be slight.
Order
The order I made was to refuse leave to appeal the ruling of the trial judge.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 20 December 2013
| Counsel for the applicant: | Mr S Gill |
| Solicitor for the applicant: | Legal Aid ACT |
| Counsel for the respondent: | Mr J White |
| Solicitor for the respondent: | ACT Director of Public Prosecutions |
| Date of last submissions: | 21 June 2013 |
| Date of decision: | 22 July 2013 (appeal decided on papers) |
| Date of publication of reasons: | 20 December 2013 |
6
3
2