Oakley v Hyslop
[2014] ACTSC 314
•28 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Oakley v Hyslop |
Citation: | [2014] ACTSC 314 |
Hearing Date: | 14 November 2013 |
DecisionDate: | 28 November 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The appeal, the finding of guilt and the appellant’s conviction are set aside. 3. The matter is remitted to the Magistrates Court for further hearing and decision by a different Magistrate. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Points and Objections not Taken Below – evidence admitted in Magistrates Court was coincidence evidence as defined in Evidence Act – no compliance with Evidence Act notice requirements – no consideration by Magistrate of whether evidence had significant probative value – no consideration by Magistrate whether probative value of evidence substantially outweighed any prejudicial effect on defendant – no objection taken by defence counsel by reference to Evidence Act – failure to object not a waiver – evidence inadmissible because of Magistrate’s failure to consider probative value of evidence – appellant deprived of fair trial – evidence not necessarily inadmissible if Evidence Act provisions properly complied with – no finding that verdict unsafe and unsatisfactory – appeal upheld – matter remitted to Magistrates Court for further hearing and decision by different Magistrate. EVIDENCE – Admissibility and Relevancy – whether evidence is coincidence evidence – admissibility of coincidence evidence under Evidence Act – effect of failure to comply with statutory requirements for court to consider probative value of coincidence evidence and weigh probative value and prejudicial effect – evidence inadmissible because of lack of compliance with statutory requirements – evidence not necessarily inadmissible if statutory requirements complied with – matter remitted to Magistrates Court for further hearing and decision by different Magistrate. |
Legislation Cited: | Evidence Act 1995 (Cth), ss 98, 98(1)(b), 99, 100, 101(2), 190, Dictionary |
Cases Cited: | AN (2000) 117 A Crim R 176 Bryant v The Queen [2011] NSWCCA 26 Sutton v The Queen (1984) 152 CLR 528 |
Texts Cited: | ALRC Report No. 102: Uniform Evidence Law Macquarie Dictionary Online ( |
Parties: | Maughan Jessica Oakley (Appellant) David Edwin Hyslop (Respondent) |
Representation: | Counsel Mr A Hopkins (Appellant) Ms K James(Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 33 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Lunney Date of Decision: 29 May 2013 Case Title: Hyslop v Oakley Court File Number: MC148 200 |
Introduction
On 29 May 2013, the appellant was convicted in the Magistrates Court of one charge of aid and abet burglary, being a burglary said to have been committed by Michael Valetich in Elimatta Street, Reid at about 4.00 pm on Thursday 12 August 2010.
Proceedings in the Magistrates Court
The police case
The police statement of facts was of course not evidence before the Magistrate, and in certain respects does not reflect the evidence that was before his Honour, but it provides a convenient overview of the case sought to be made by the prosecution, as follows:
About 2.00pm, Thursday 12 August 2010, Police attended [an address in] Giralang in the Australian Capital Territory (ACT) in response to a report of burglary. On arrival Police spoke with Ms Bianca Latimore who told Police about 1:50 pm this date, she arrived home and pulled into her driveway at [her home in] Giralang.
At this time Ms Latimore saw a green Magna sedan parked across the street from [her house]. She could see two persons sitting in the vehicle at the time. One of these persons was a female.
As she pulled into her driveway, Ms Latimore saw a male run from the front door of her house and in an easterly direction along Antares Crescent. At the same time the same green Magna sedan drove off. Ms Latimore record[ed] the registration of the green Magna sedan as Australian Capital [Territory] Registration YAN83A. Upon getting to her front door, Ms Latimore observed one of the glass panels in her front door was broken.
About 4.00 pm, Thursday 12 August 2010, Police attended [an address in] Reid in the ACT, in response to a burglary at the location. On arrival Police spoke with the complainant, Ms Alisha Wigley who told Police about 3:40 pm that day ... she returned home and saw a blue/green Magna sedan parked directly outside her house.
Ms Wigley saw a female person seated in the driver’s seat of the vehicle. Ms Wigley described the driver as being short stature, brown coloured hair in a pony tail, of Caucasian appearance, aged in her early 20’s with a round face. This description given by witnesses matches that of Maughan Oakley, ... herein referred to as the defendant before the court.
As she pulled into her driveway Ms Wigley heard the Magna honk its horn twice. Ms Wigley then parked her vehicle and walked into a side door entrance of her house, where she heard the Magna honk its horn another two times.
Ms Wigley then entered the house and located a male person in a bedroom. This male was described as having a long face, Caucasian background, stocky build and aged in his 20’s. This matches the description of Michael Valetich, ... a co-offender in these offences.
Ms Wigley, frightened, ran out of the house and entered her vehicle, before reversing it up the driveway. As she did this she saw the same male person she had see in her house get into the passenger seat of the Magna Sedan. The Magna drove away towards Ainslie Avenue and Ms Wigley recorded the registration of the vehicle as ‘YBN834’. Police believe Ms Wigley recorded the registration incorrectly. YBN834 is not recorded as a valid registration plate in any jurisdiction.
Ms Wigley returned to her residence and noticed that a glass panel in the front door had been broken with the door now ajar. The rest of the house had been extensively rummaged through. Further checks revealed three family laptop computers belonging to Alisha Wigley, Peter Wigley and Susan Wigley were missing.
Checks on Rego ACT, Road Transport Information Management, show vehicle, ACT registration YAN83A is a blue 1998 Mitsubishi Magna sedan. The vehicle is currently registered to [an address in] Hawker, ACT until 27 August 2010.
Around 7:45am on Friday 13 August 2010, Police attended the location of [the Hawker address] in the ACT and observed a blue/green coloured Magna motor vehicle, bearing ACT registration YAN83A, parked in the driveway.
Around 9:30am, Police observed a male and female enter the Magna and drive down Woolner Circuit. This vehicle was stopped by Police and the driver was identified as the defendant. The passenger was the defendant’s father, Mr Gary Oakley.
A consensual search of Ms Oakley’s home was conducted and no items of relevance located.
A short time later, the defendant was conveyed to the City Police Station.
Between 12:00 pm and 12:51 pm Friday 13 August 2010, a digital record of interview was conducted in the City Police Station between DSC Simon Roscoe and the defendant. During the interview the defendant made the following admissions:
-she is the owner and driver of the Green Mitsubishi Magna, bearing ACT registration YAN83A;
-she was the only person to drive her vehicle on 12 August 2010;
-she drove a friend Kylie Carpenter and her son to Gungahlin to pick up a baby seat;
-she drove to Dickson to have lunch and met her Father at his place of work in Campbell;
-she returned to Kylie’s house in Tuggeranong;
-she drove home in the morning of Friday 13 August;
-she denied taking part in any burglaries or attempted burglaries that day;
-she declined the opportunity to participate in a identification parade in relation to the allegation of aggravated burglary.
On 13 August 2010 a Crimes Act 1900: Section 194 Search Warrant was conducted at Kylie Carpenter’s residence [at an address in] Theodore in an attempt to locate the laptop computers. No items of relevance were located.
...
On Wednesday 6 October 2010 a photoboard procedure was conducted at the Australian Federal Police (AFP) Weston complex. Ms Alisha Wigley viewed a total of 9 separate digital images during that procedure, one of which showed an image of the defendant. Ms Wigley was asked if she could identify the female she saw in the car outside her residence on 12 August 2010. Ms Wigley selected an image that was not of the defendant. This image was printed out and signed by Ms Wigley.
On Wednesday 6 October 2010, a second photoboard procedure was conducted at the AFP Weston complex. Ms Alisha Wigley viewed a total of 9 separate digital images during that procedure, one of which showed an image of Michael Valetich, a co-offender in these offences. Ms Wigley was asked is [sic] she could identify the male she saw inside her residence on 12 August 2010. Ms Wigley confidently selected the image of Mr Valetich. This image was printed out and signed by Ms Wigley.
...
On 10 October 2010, Gary William Oakley, ..., the father of the defendant, gave Police a statement stating that the defendant had come and seen him at his place of work around midday on 12 August 2010. He stated that she normally drives a blue/green coloured Magna, registration YAN83A.
At no time did Ms Alisha Wigley, Peter Wigley, Susan Wigley or any other person give the defendant permission to enter her residence and steal any items.
The statement of facts describes an attempted burglary in Giralang and a completed burglary in Reid. However for convenience I shall refer to both incidents simply as burglaries.
The evidence
At the hearing, the prosecutor called evidence from:
(a)Ms Wigley, the occupier of the Reid house that had been burgled;
(b)Ms Latimore, the occupier of the Giralang house the subject of the attempted burglary;
(c)the appellant’s father Gary Oakley;
(d)the informant Constable David Hyslop, and other AFP members Constable Lauren Reynolds, DSC Simon Roscoe, Constable Corey O’Connor and Constable Benjamin Kropp;
(e)Patrick Carey who worked with the AFP and prepared the photoboards to be viewed by Ms Wigley as described in the statement of facts; and
(f)Kylie Carpenter, with whom the appellant claimed to have spent much of the day of the Giralang and Reid burglaries.
Evidence was given in the defence case by the appellant and by Michael Valetich, who had pleaded guilty to the Reid burglary.
Ms Latimore’s evidence related entirely to the attempted burglary in Giralang. She gave evidence:
(a)about a car seen parked outside her house when she returned home at about 1.50 pm, being:
(i)the colour, make and model of the car (a green Mitsubishi Magna sedan);
(ii)the car’s number plate (YAN 83A);
(iii)that there was someone in the driver’s seat and a female in the rear of the car;
(iv)the movement of the car during the incident (that after a man ran away from her house, the car drove off); and
(b)about the attempted burglary, being:
(i)a description of the clothing worn by the man seen running away from the house, being a black jumper and:
a hoody with white sort of swirly – I don’t know whether it was writing or a picture, or something on the sleeves. And blue jeans on, sort of baggy jeans, ... lightish blue
(ii)the method used to attempt to gain entry to the house, being the breaking of glass near the front door.
Ms Wigley gave evidence of discovering the burglary when she returned home at about 3:30 pm. She saw a man, whom she later identified in a photoboard process as Mr Valetich, and saw a light blue sedan parked outside the house. She saw the man get into the passenger seat of the car, which then drove away. She had attempted to record the car’s registration number. She saw a female in the driver’s seat who, she guessed, was “early 20s” and who:
looked small within the car. She had brown hair, which I presumed to have been slightly longer, as it was pulled back.
Ms Wigley described the man she saw as:
quite tall, so about 6 foot. He was wearing black track pants and a dark hooded jumper with his hood up over his head. He had a long roundish face and stubble around his beard.
Mr Oakley gave evidence that at about 12.30 pm or 1.00 pm on the day of the Reid burglary, the appellant had come to the War Memorial where he worked, but he had not seen her car; she had told him that it was parked elsewhere and that a friend was in the car with a baby.
Mr Oakley said that the appellant had been in an “off and on” relationship with Mr Valetich for some years.
Constable Hyslop gave evidence that there was a smashed pane of glass in the front door of the Reid house.
Constable Hyslop also gave evidence that his notebook recorded that Ms Wigley had described the car as a “blue vehicle similar to Camry”, definitely a sedan. He said that the registration number Ms Wigley had given him was Y8N 834, but that she “may have said it could have been” YBN 834.
Constable Hyslop said that the registration number YBN 834 was not a valid registration number; he believed, although he had not recorded the inquiry anywhere, that he had also checked Y8N 834 but discovered that it was also not a valid registration number.
The appellant gave evidence that she drove a green Magna sedan, registration number YAN 83A. She said that the book obtained when the car was bought specified the car’s colour as a colour recorded in the Magistrates Court transcript as “Laguana Green”. When pressed, she accepted that her car was green, or “bluey/green”.
Constable O’Connor gave evidence that, in the photoboard process, Ms Wigley had identified a person other than the appellant as the person she had seen in the car outside her house. He did not know the identity of the person chosen by Ms Wigley.
Mr Carey prepared the photoboards. He also did not know the name of the person whose photograph had been chosen by Ms Wigley.
Neither Constable O’Connor nor Mr Carey knew whether police had made any enquiries about the person whose photograph was chosen by Ms Wigley.
Approach to evidence
In the Magistrates Court, the evidence relating to the Giralang incident was treated as circumstantial evidence in the form of similar fact evidence. The prosecutor referred to the “striking” similarities between the events in Giralang and the events in Reid, and asked Mr Valetich whether the similarities between the description of the man involved in the Giralang attempted burglary and the description of the man involved in the Reid burglary (i.e. Mr Valetich) were “just a coincidence” (see Sutton v The Queen (1984) 152 CLR 528 (Sutton), Gibbs CJ at 535; Brennan J at 549; Deane J at 559-560; Dawson J at 566).
Counsel for the appellant did not challenge this approach.
Alternative hypothesis consistent with innocence
On the basis that the case was a circumstantial one, the Magistrate considered the existence of an alternative hypothesis or explanation for the events that was consistent with the appellant’s innocence. The alternative hypothesis as framed by the appellant’s counsel was that the driver of the car involved in the Reid burglary was not the appellant, that the car was different from the car observed in Giralang, and that the woman involved in the Reid burglary was the woman identified by Ms Wigley through the photoboard process.
The Magistrate’s conclusions
As expressed by his Honour, however, the alternative hypothesis appeared to be simply that the various connections between the attempted burglary in Giralang and the burglary in Reid were coincidental. His Honour said:
In order for that hypothesis to be a reasonable one the connections, or apparent connections, between the attempted offence in Giralang and the completed offence in Reid by Mr Valetich would have to be a coincidence. However, there are a number of circumstantial matters which, in my view, could give rise to an inference that the defendant was aiding and abetting Mr Valetich when he undertook the offence in Reid, and those are the presence of the defendant and the defendant’s vehicle in Giralang when an offence was ... attempted, using a similar method to the method of the ... completed offence in Reid.
I say that the defendant was in the defendant's vehicle because the evidence in my view establishes that. She had the only keys to the vehicle. She told the police that she was the only person who drove that car and that was confirmed by her father in the course of his evidence. It seems to me quite clear that the evidence establishes as a certainty that it was her vehicle that was involved in the attempted offence in Giralang and that she was the driver of the vehicle when that occurrence was taking place.
In Giralang there was an offender, or the male offender was wearing similar clothing to that worn by Mr Valetich in Reid. There was a vehicle at the offence in Reid of a similar colour, similar make and similar number plates to the defendant's vehicle. It was established as a certainty that Mr Valetich was involved in the Reid offence and there was the personal relationship that he had had with the defendant for quite a long time. There was also the possible concealment, or the likely concealment of the presence of Mr Valetich in her motor vehicle when she attended the Australian War Memorial, in order to take delivery of some funds from her father.
There was also the absence of any detail of the female accomplice given by Mr Valetich in the course of his examination-in-chief and only very cosmetic details of the vehicle that he used. When he was pressed in cross-examination he was unable to identify whose car it was or how it came to be parked outside the premises in which he was committing the offence. He was either unable or unwilling in cross-examination to give any detail of the female accomplice which he said was the driver of the vehicle in Reid, nor did he give any explanation of how she came to be there.
It is quite clear that the defendant does not have to prove innocence, however, there must be established an evidentiary basis for a reasonable hypothesis. In my view, the absence of any explanation for the presence of a car other than the defendant's, and the presence of a person other than the defendant being in Reid in the face of all the circumstantial material that I have referred to robs the proposed hypothesis of any rationality, let alone reasonableness. I am satisfied beyond reasonable doubt that the offence is made out.
His Honour resolved the question that he had posed to himself about whether there was an alternative hypothesis consistent with the appellant’s innocence by finding:
(a)that it was the appellant’s car that was observed in Giralang;
(b)that the appellant was driving it at the time;
(c)that the man involved in the Giralang offence was wearing similar clothing to that worn by Mr Valetich during the Reid offence;
(d)that the vehicle observed in Reid was of a colour, make and registration number similar to those of the appellant’s vehicle; and
(e)that there was a long-standing personal relationship between Mr Valetich and the appellant.
There are several issues that arise from his Honour’s approach.
First, his Honour’s view seems to have been that the appellant’s obligation to establish an evidentiary basis for the alternative hypothesis proposed on her behalf required the defence to establish, or at least to offer, an explanation for the presence of a car other than the appellant’s, and the presence of a person other than the appellant, at the scene of the Reid burglary. Leaving aside for the moment any questions of the presumption of innocence and the burden of proof, given that the appellant’s case was that neither she nor her car was in Reid at the relevant time and place, I cannot see how she could possibly have been expected to establish that another car with another driver was in Reid at that time and place or to explain how or why that was the case. In fact, the alternative hypothesis would seem to have arisen effectively from the evidence of inconsistencies in the descriptions of the two cars and from Ms Wigley’s positive identification of another woman as the driver of the car seen in Reid.
Secondly, his Honour made no attempt to consider whether coincidence was in fact a realistic or rational explanation for the similarities in the evidence relating to the two burglaries. Rather, he relied on the mere existence of the similarities to discount the alternative hypothesis, without considering the nature and scope of the similarities. For instance, he relied on the similarities in the descriptions of the clothing worn by the two male burglars, without noting that the similarities amounted to a dark hooded top and long pants, while the differences related to the presence of a white swirly design somewhere on the black top worn by the Giralang burglar but not mentioned in relation to the Reid burglar, and the pants being lightish blue jeans in Giralang but black track pants in Reid.
His Honour did not ask himself whether it could not be mere coincidence that two different burglars both wore hooded tops and long pants, nor remind himself that black track pants and lightish blue jeans are not similar except to the extent that they are both long pants.
In finding the appellant guilty, his Honour referred explicitly to:
(a)the evidence of Ms Latimore and the evidence of Ms Wigley, but without mentioning the latter’s positive identification of a person other than the appellant in the photoboard process;
(b)the evidence given by both the appellant and her father that she was the only person driving the car with registration number YAN 83A on the day in question; and
(c)the evidence of Mr Valetich, who had already pleaded guilty to the burglary in Reid, that neither the appellant nor her car was present at the time of the burglary, and that the car that had been present was a blue Holden.
His Honour noted that there was no satisfactory explanation provided for who was driving the blue Holden or how Mr Valetich came to have access to it. His Honour referred to the fact that as a matter of timing the appellant could have driven her car from the War Memorial to Giralang in time to have been observed by Ms Latimore and could then have reached Reid in time to be involved in the Reid burglary, and also noted that Mr Valetich could have been in the appellant’s car while she visited her father at the War Memorial (a possibility which, as far as I can see, was suggested by the prosecutor in cross-examination of the appellant and Mr Valetich and denied by both of them, but was not the subject of any other evidence). However, the fact that the appellant could have been at the scene of the Reid burglary is not of itself a sufficient basis for finding that she was there.
The appeal
The appellant appeals her conviction. The grounds of appeal were, after amendment, as follows:
a.That the verdict was unsafe/unsatisfactory in the circumstances.
b.That the learned Magistrate erred by admitting and relying upon coincidence evidence in circumstances where:
i.the prosecution had failed to give notice in writing or otherwise of an intention to present the evidence;
ii.no application was made by the prosecution to waive the notice requirement;
iii.no direction was given by the court to the effect that the notice requirement was dispensed with;
iv.no consideration was given to whether the evidence had the significant probative value sufficient to meet the test of admissibility;
v.the evidence adduced did not have significant probative value;
vi.no consideration was given to whether the probative value of the evidence substantially outweighed its prejudicial effect;
vii.the probative value of the coincidence evidence did not substantially outweigh its prejudicial effect.
c.That the failure of counsel for the appellant at trial to object to the coincidence evidence resulted in a miscarriage of justice.
The appellant seeks an order setting aside the conviction as unsafe and unsatisfactory and entering an acquittal.
The appellant’s argument is, in summary:
(a)that some of the evidence admitted against the appellant was “coincidence evidence” within the meaning of the Evidence Act 1995 (Cth) (the Commonwealth Act applied in the ACT throughout most of the extended hearing of this matter in the Magistrates Court, including at all points when evidence was taken, but had been replaced in the ACT by the Evidence Act 2011 (ACT) shortly before the Magistrate handed down his verdict).
(b)that such evidence was admitted in breach of the requirements of that Act; and
(c)that, in the absence of the evidence said to have been wrongly admitted, it would not have been safe for the Magistrate to find that the appellant’s guilt had been established beyond reasonable doubt.
The legislation
The provisions of the Commonwealth Evidence Act about “coincidence evidence” that were in force during the relevant period were as follows:
98The coincidence rule
(1)Evidence that 2 or more events occurred 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 occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note:One 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)Paragraph (1) (a) does not apply if—
(a)the evidence is adduced in accordance with a direction made by the court under section 100; or
(b)the evidence is adduced to explain or contradict coincidence evidence presented by another party.
Note:Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
99Requirements for notices
Notices given under section ... 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
100Court may dispense with notice requirements
(1)...
(2)The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98.
(3)The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(4)...
(5)The direction—
(a)is subject to the conditions (if any) the court thinks fit; and
(b)may be given at or before the hearing.
(6)Without limiting the court’s power to impose conditions under this section, the conditions may include one or more of the following:
(a)a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each party other than a specified party;
(b)...
(c)a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.
101Further restrictions on ... coincidence evidence adduced by prosecution
(1)This section applies only in a criminal proceeding and so applies in addition to section... 98).
(2)... 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)...
(4)This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
I note first that there are several differences between the applicable provisions of the Commonwealth Evidence Act and the ACT Evidence Act that replaced it in the ACT in 2011. All the ACT departures from the Commonwealth legislation appear to be entirely stylistic (and therefore to provide an unnecessary distraction to the efficient application of the legislation and the relevant jurisprudence, most of which has developed in relation to the Commonwealth and NSW Evidence Acts).
The Dictionary to the Evidence Act defines “coincidence evidence” as:
evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.
The Macquarie Dictionary Online ( viewed 18 November 2014) defines “coincidence” relevantly as “a striking occurrence of two or more events at one time apparently by mere chance”.
Thus, “coincidence evidence” can be described as evidence that two or more events happened, being evidence that a party seeks to adduce in order to prove that a person did a particular act or had a particular state of mind, that proof to rest on the basis that it is improbable, having regard to any similarities in the events or in the circumstances in which they happened, or both, that the two or more events happened by mere chance.
Was the challenged evidence coincidence evidence?
Neither defence counsel, the Magistrate, nor anyone else involved in the hearing raised the possibility that the evidence of the Giralang burglary was coincidence evidence as defined in the Evidence Act. As noted, the evidence concerned was treated simply as similar fact evidence as discussed in Sutton. On appeal, the respondent maintained the position that the evidence relating to the Giralang burglary was simply tendered as circumstantial evidence relevant in identifying the appellant as the driver of the car used in the Reid burglary.
It seems, however, that the coincidence rule included in the Evidence Act was intended to provide a statutory framework to deal with the admission of similar fact evidence that is said to be probative because it is improbable that the similarities between the various events or the circumstances in which they happened occurred coincidentally.
In ALRC Report No. 102: Uniform Evidence Law, the Australian Law Reform Commission at Chapter 11 reviewed an earlier form of the Evidence Act provisions relating to tendency and coincidence evidence, noting that at common law such evidence was commonly referred to as “propensity” and “similar fact” evidence. The Commission noted:
11.6 At common law, when such evidence is adduced by the prosecution in criminal cases to prove tendency or coincidence, it must satisfy the extremely stringent “no rational explanation” test. Under the uniform Evidence Acts, evidence may not be admitted for tendency or coincidence purposes unless it has “significant probative value” and reasonable notice of intention to adduce it has been given to the other parties to the proceedings. Where such evidence is adduced by the prosecution against an accused to prove tendency or coincidence, it must satisfy the further requirement that the probative value of the evidence must substantially outweigh any prejudicial effect it may have before it can be used to prove a tendency or coincidence. [Citations omitted].
In relation to a specific proposal for amendments of s 98 of the Evidence Act, the Commission said at 11.25:
The intention of the proposal is that s 98 will apply where the tendering party argues that the evidence is relevant to the issues in the case on the basis of improbability reasoning and that reasoning turns on similarities between the events, or in the circumstances surrounding those events, or both.
The question, then, is whether evidence of the Giralang burglary was only relevant to the prosecution of the appellant in connection with the Reid burglary as coincidence evidence, that is, on the basis that it was improbable that, having regard to any similarities between the burglaries or in the circumstances in which they happened, or both, that the two events happened coincidentally.
Evidence about the burglaries
The relevant evidence about the two burglaries is set out at [6] to [14] above.
The two burglaries were clearly similar in having been committed by a man and involving the breaking of glass in or near the front door. The clothing worn by the two burglars was, as already noted, similar but by no means identical.
The descriptions of the cars involved were identical as to four of the six characters in the registration numbers (Y...N 83...); the cars were variously described as green, light blue or bluey-green, and as a sedan, a Magna, possibly a Camry or (by Mr Valetich) as a Holden. The driver of the car was described as a small female in her early 20s with brown hair pulled back (Reid) and as “someone”, with a reference to there being a female in the back seat (Giralang).
It seems to have been accepted in the Magistrates Court that the appellant could be described as a small female in her early 20s with brown hair.
The similarities between the burglaries
Most of the various pieces of evidence about the Giralang burglary, taken alone, would have been excluded as irrelevant.
For instance, evidence that the Giralang burglary, like the Reid burglary, was committed by a man wearing a black hooded top and long pants of some sort, and that entry to the house concerned was pursued by breaking glass at the front door of the house, would not establish any link between the two burglaries. I consider it is a matter for judicial notice that many burglaries, probably the majority, are committed by men, and that many of those men at the time are wearing long pants and some kind of clothing on the top part of their bodies. While hooded tops are not the only kind of clothing worn by people committing burglaries, it is not at all uncommon for people committing burglaries to wear clothing that partially covers their heads, thus making it relatively difficult for observers to get a clear view of their faces.
Equally, many burglaries involved the gaining of access to the target premises by breaking glass at or near an entrance.
Evidence that cars seen respectively in Giralang and Reid had some similarities, being that they were sedans of roughly the same size with colours in the green to blue part of the spectrum, and that four of the six characters of their respective number plates were the same, and were in the same positions on the number plates, of itself could not have been relied on to establish that the two cars observed were the same car.
In assessing the probative value of coincidence evidence, the court:
(a)is not required to identify “striking” similarities between the various events or circumstances the subject of the contested evidence (Christopher Miles v The Queen [2013] ACTCA 52 at [19]; DSJ v Director of Public Prosecutions(Cth) (2012) 215 A Crim R 349 (DSJ) at [45]); but
(b)is required to consider all the evidence adduced or to be adduced by the party seeking the admission of the coincidence evidence (DSJ at [9] (Bathurst CJ); [62] (Whealy JA, quoting Simpson J in Zhang at [139]).
Once all the evidence about the two burglaries is put together, the evidence relating to the Giralang burglary may have some probative value in identifying the car observed in Giralang as the same car observed at the Reid burglary. The difficulty for the respondent is that I cannot see how that evidence could have that probative value except on the basis that it is improbable that by coincidence:
(a)on the same afternoon;
(b)in houses in different parts of Canberra;
(c)while there were cars stopped outside of roughly similar appearance and with number plates four of the six characters of which were the same, and in the same positions on the number plates;
(d)burglaries were committed by men wearing long pants and black hooded tops who broke glass near the front entrance of the house concerned; and
(e)after each burglar left the house, the car concerned drove away.
Accordingly, I find that the evidence about the Giralang burglary was coincidence evidence within the terms of the Evidence Act. The possibility that, before the enactment of the Evidence Act (originally in 1995), that evidence might have been admissible as “similar fact evidence”, on the basis that the “striking similarities” between the two sets of events were “beyond the realm of coincidence”, does not establish that the evidence is not now caught by s 98 of the Evidence Act.
If the evidence about the Giralang burglary (considered in the context of evidence about the Reid burglary) is properly described as coincidence evidence, and in the absence of any other apparent basis for admitting it, it would have been admissible only in circumstances set out in the Evidence Act.
The admissibility of coincidence evidence depends on compliance with the requirements of the Evidence Act as quoted at [32] above. Several of those requirements are formal, and may be addressed in ways other than by strict compliance. For instance, under s 100 of the Evidence Act, the court may dispense with the notice requirements, either before or after the time by which notice should have been given and with or without imposing conditions on the party tendering the evidence.
However, in a criminal proceeding, the substantive prerequisites for the admission of coincidence evidence are:
(a)that the court has determined that the evidence has significant probative value (s 98(1)(b)); and
(b)that the court has determined that the probative value of the evidence substantially outweighs any prejudicial effect on the defendant (s 101(2)).
Was the coincidence evidence admissible?
Compliance with formal requirements
The respondent concedes that:
(a)no notice was given of the intention to tender coincidence evidence at the hearing;
(b)no application was made to waive the requirement to give notice; and
(c)the Magistrate made no order dispensing with the notice requirement.
As described at [37] above, there appears to have been no recognition in the Magistrates Court:
(a)that the evidence about the Giralang burglary that was said to enable the inference that the appellant was driving the car involved in the Reid burglary fell into the class of evidence subject to the coincidence rule; and
(b)that, as such, there were explicit statutory requirements to be satisfied before it could be admitted.
This meant not only that the formal requirements were not complied with but also that there was no assessment whether the evidence had “significant probative value” (s 98(1)(b)) and there was no assessment whether the probative value of the evidence substantially outweighed the prejudice to the appellant (s 101(2)).
His Honour’s assessment of whether the evidence in question left open a reasonable alternative hypothesis consistent with the appellant’s innocence, even if adequate for the purpose of determining whether the evidence had “significant probative value” (as to which see [24] to [26] above), could only have taken his Honour to the point of determining that the evidence was not inadmissible under s 98(1) (see DSJ at [10], [11] and [79]). It would not have addressed the requirement imposed by s 101(2), namely that the evidence was inadmissible unless its probative value substantially outweighed its prejudicial value.
Effect of failure to comply with Evidence Act
This case differs from Bryant v The Queen [2011] NSWCCA 26, cited by counsel for the appellant, in which the admission of tendency and coincidence evidence without compliance with the formal requirements of the legislation was found not to have caused a miscarriage of justice. In that case, however, the evidence concerned was admitted after a voir dire in which the trial judge had considered the admissibility of the proposed evidence in considerable detail.
The evidence in this case was accordingly received in breach of the requirements of s 101 and arguably s 98. I express no view about whether counsel’s failure to object to the admission of the evidence indicated any incompetence on his part, except to note that any failing on his part was shared by the prosecutor and the Magistrate. Be that as it may, counsel’s failure did not amount to a waiver of the requirements of those provisions for the purposes of s 190 of the Evidence Act, and the evidence was therefore inadmissible (AN (2000) 117 A Crim R 176 at 186-187; [62]; R v Zhang (2005) 158 A Crim R 504 at 516; [49]).
Effect of admission of coincidence evidence
It is apparent from his Honour’s reasons, quoted at [21] above, that the coincidence evidence was significant in his Honour’s conclusion that the appellant was guilty of the offence charged.
The respondent argued that, even if the coincidence evidence should have been excluded, there was still sufficient evidence to found a verdict of guilty against the appellant, pointing to:
(a)the description of the Reid driver given by Ms Wigley;
(b)the description of the number plates of the car seen in Reid being "nearly identical" to the number plates on the appellant's car;
(c)the colour of the car being described as blue (noting that the appellant herself described her car as a blueyIgreen);
(d)the shape of the car being described by Ms Wigley as a sedan (noting that the appellant’s car was a sedan);
(e)the association between the appellant and the convicted burglar Michael Valetich;
(f)the timing and placement of the appellant at the War Memorial in Campbell, near Reid, earlier in the day of the burglary;
(g)the appellant's own admission in her record of interview that she was the only driver of the car on that day.
However, in identifying the evidence said to be sufficient to found a guilty verdict, the respondent failed to mention:
(a)that the impact of the description of the driver by Ms Wigley, while it may have described the appellant in general terms, was weakened by Ms Wigley’s positive identification, in a photoboard process, of another woman as the driver;
(b)that Ms Wigley, as well as describing the car as a sedan, described it as possibly a Camry;
(c)that the admitted burglar of the Reid house, Mr Valetich, was certainly an associate of the appellant, but had given evidence that the appellant was not the driver of the car involved in the Reid burglary;
(d)that the appellant’s presence in Campbell (at the War Memorial) earlier in the day did not, in terms of ease of access to the scene of the Reid burglary, distinguish her from the probably thousands of other people who, during that day, were in Campbell or in the many other suburbs of Canberra that allow relatively easy access to Reid; more than two hours elapsed between when the appellant met her father at the War Memorial, according to his evidence possibly as late as 1.00 pm, and when Mr Valetich was disturbed in the Reid house at about 3.40 pm, a period during which one could easily have driven from Campbell to the most distant Canberra suburb and back to Reid;
(e)that the appellant’s admission that she was the only driver of the vehicle on that day would only prove that she was the driver of the car involved in the Reid burglary if there was other proof that the car was her car; in the absence of that other proof, the appellant’s “admission”, together with her claim of innocence, is in fact evidence (whether or not it is believed) that her car was not the car involved in the Reid burglary.
Thus, if evidence of the Giralang burglary had been excluded, the only evidence linking the appellant with the Reid burglary would have been the similarities in the general description of her car and the car observed in Reid, the general fact of her long-standing on and off relationship with the burglar, and the very general similarity between Ms Wigley’s description of the driver of the car and the appellant’s appearance, which would have been to some extent undermined by Ms Wigley’s positive identification of another person through the photo board process.
I am accordingly satisfied that if the coincidence evidence had been eliminated from the Magistrate’s consideration, his Honour must have had a reasonable doubt about whether the appellant had in fact been the driver of the car seen at the Reid burglary. For that reason, I reject the respondent’s submission that even in the absence of the evidence about the Giralang burglary, there was evidence sufficient to found a guilty verdict. In the absence of that evidence, such a verdict would have been unsafe and unsatisfactory.
Conclusions
Was there a miscarriage of justice?
I have concluded:
(a)that the evidence about the Giralang burglary was caught by the coincidence rule contained in the Evidence Act, and was only admissible in accordance with the provisions of that Act;
(b)that the evidence was admitted in breach of the Evidence Act provisions, not only because the formal requirements were not complied with but because the Magistrate did not consider or determine whether the evidence had significant probative value or whether its probative value substantially outweighed its prejudicial effect on the appellant; and
(c)that if the coincidence evidence had been excluded, a guilty verdict would have been unsafe and unsatisfactory.
Accordingly, I consider that the appellant did not have a fair trial and there was a miscarriage of justice.
Was the verdict unsafe and unsatisfactory?
However, I have not found that the evidence of the Giralang burglary ought to have been excluded, only that in the circumstances of the Magistrates Court hearing it was not properly admitted.
It is quite possible that if that evidence had been assessed by the Magistrate in accordance with the requirements of the coincidence rule, it could have been properly admitted, and could have provided an adequate basis for the Magistrate’s finding of guilt. For that reason, I cannot find that the Magistrate’s finding of guilt was unsafe and unsatisfactory, and I do not propose to enter a verdict of not guilty.
Nor do I propose to consider the admissibility of the evidence, and then reach a verdict, on the basis of the transcript. This is a matter in which, depending on how much if any of the Giralang evidence is ultimately received, the appellant’s credibility could be significant to the outcome of the proceedings.
Accordingly, I shall uphold the appeal, set aside the finding of guilt and the appellant’s conviction, and remit the matter to the Magistrates Court for further hearing and decision by a different Magistrate.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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