R v AKN
[2013] ACTSC 64
•15 April 2013
R v AKN
[2013] ACTSC 64 (15 April 2013)
CRIMINAL LAW – EVIDENCE – coincidence evidence – application to adduce –
ss 98, 101 Evidence Act 2011 (ACT) – general principles examined – the evidence sought to be adduced has significant probative value that substantially outweighs prejudice to accused – application allowed
Corporations Act2001 (Cth).
Criminal Code 2002 (ACT), s 615
Evidence Act1995 (NSW), s 98
Evidence Act2011 (ACT), ss 98, 101
DSJ v The Queen [2012] NSWCCA 9
Pfennig v R (1995) 182 CLR 461
R v Miles [2013] ACTSC 48
AE v The Queen [2008] NSWCA 52
CGL v DPP (VIC) [2010] VSCA 26
Hillier v The Queen (2007) 228 CLR 618
No. SCC 375 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 15 April 2013
IN THE SUPREME COURT OF THE )
) No. SCC 375 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: R
Applicantv
AND: AKN
Respondent
RULING
Judge: Burns J
Date: 15 April 2013
Place: Canberra
THE COURT RULES THAT:
The prosecution is allowed to lead coincidence evidence as set out in the Notice of Intention to Adduce Coincidence Evidence dated 10 October 2012 at the trial of the accused.
The accused AKN is jointly charged with MJM in the following terms:
THAT between the 18th day of January 2011 and the 18th day of March 2011 at Canberra in the Australian Capital Territory MJM and AKN cultivated a commercial quantity of a controlled plant, namely cannabis, intending to sell any of the plants of their products, or believing that someone else intended to sell any of the plants or their products.
To this charge the accused pleaded not guilty and has elected trial by judge alone. On 10 April this year, the co-accused MJM entered a plea of guilty to this charge and he is currently awaiting sentence.
By a Notice of Intention to Adduce Coincidence Evidence (the Notice) dated 10 October 2012 the Director of Public Prosecutions (DPP) gave notice to AKN of its intention to lead coincidence evidence at his trial. Subsequently, by an Application dated 16 January 2013, the DPP sought an order that the prosecution be allowed to adduce coincidence evidence as set out in the Notice at AKN’s trial.
The proposed coincidence evidence is relevant to AKN only, and is not relevant to the case against MJM.
EVENT 1
The Crown case with respect to the count on the indictment, referred to as Event 1 in the Notice, is that both accused participated in cultivation of a cannabis crop within premises on Waratah Street, O’Connor, ACT. From 19 January 2011 to 17 March 2011, police conducted surveillance at that address. The accused AKN was seen to visit the premises on 19 January 2011, 23 January 2011, 12 March 2011, 15 March 2011, 16 March 2011 and 18 March 2011. On those occasions, he arrived at the premises in a silver Toyota Hilux, bearing ACT registration ***41F, which he was driving. Visits were also observed by the co-accused MJM. On 12 March 2011 the two accused carried a television set inside the house.
It is alleged that at about 2:39pm on 17 March 2011 police saw a white Toyota Hilux utility vehicle bearing ACT registration ***77M enter the driveway of the premises and park behind a white Suzuki with NSW registration ***58N. The white Toyota belonged to a registered company and had the company logo, name and mobile telephone number on the cabin doors. The accused MJM was an employee of that company and the vehicle was allocated to him, allowing him to use it for work and also to drive it to and from his residence. MJM got out of the driver’s side of the white Toyota utility, walked to the front door of the residence and entered the building. He was wearing a florescent high visibility jacket.
A short time later, police executed a search warrant at the premises. Police knocked on the front door, but there was no response from inside the house. Other police officers went into the rear yard of the premises and saw the backdoor was unlocked. They entered the residence and found no one inside. In the backyard of the residence were two free standing buildings, a self contained residential unit and a large metal shed. Police could not locate anybody within the residential unit.
Police then observed MJM standing in front of a door in the large metal shed. He removed a pair of pink disposable gloves from his hands and placed them in a pocket of his pants. Police showed MJM their identification and informed him that the police had a search warrant for the premises. Police then escorted MJM into the main residence.
At about 3:15pm that day a representative of ACTEWAGL arrived to inspect the power connection to the premises. He noted that alterations had been made to allow bypass of the usage meter box. He disconnected the power to all buildings on the property, and also arranged for the power to be disconnected at the power pole.
In a subsequent search of the main residence, police found cannabis plants growing hydroponically in the three bedrooms. In the self contained residential unit in the rear yard, police found cannabis plants growing hydroponically in the two bedrooms. Cannabis plants were also being grown hydroponically in the large metal shed. A total of 105 cannabis plants were found. Police seized the plants, together with hydroponic equipment and other items which appear to have been used in the cultivation. Police also seized a Samsung GT-1900 mobile telephone and two pink gloves from the couch in the lounge room, a box of Ansell pink Handy Clean gloves from the hallway, a cardboard box bearing a label which included the numbers and words “644059 Lucagrow 1000” in the hallway, and a pink latex glove from a rubbish bin located beside the house in the driveway of the premises.
A DNA analysis of the pink latex glove found in the rubbish bin outside the premises located a partial DNA profile providing extremely strong support for the proposition that AKN was the source of the DNA. Fingerprints found on the cardboard box bearing the label “644059 Lucagrow 1000” found in the hallway of the Waratah Street premises were found to match the fingerprints of the accused AKN.
Police observed that there were dark coverings on all windows at the premises except for the front lounge room. In that room there was a television, couch and a dining room table. The blinds on the lounge room windows were open.
The evidence which the Crown seeks to lead by way of coincidence evidence is evidence linking the accused AKN to two other residences where cannabis was being cultivated. This evidence is referred to as Events 2 and 3 in the Notice.
EVENT 2
With respect to Event 2 it is alleged that on 9 May 2011, 15 June 2011, 8 July 2011, 13 July 2011 and 16 July 2011 the accused AKN was seen to attend premises at and address on Maple Crescent, Jerrabomberra, NSW in the company of PM. Police observed the accused and PM to remain on the premises for about an hour on each of 9 May 2011, 8 July 2011 and 13 July 2011. On 6 August 2011, AKN was observed to leave an address in Franklin in the ACT in his silver Toyota Hilux, registration ***41F with another male. He drove to premises on Maple Crescent, Jerrabomberra, NSW. AKN and the other male were observed walking toward the front door of the residence on those premises. A third male was observed to arrive at Maple Crescent and park his vehicle in the garage of the residence. At about 3:10pm that day NSW and ACT police executed a search warrant at the Maple Crescent premises. As police forced entry into the premises, the accused and another male attempted to flee the premises by tearing a plastic sheet covering a fixed window, kicking the window from its frame and leaving through it. The accused and the other male were arrested a short time later. The accused was found to have $2,410.00 in Australian currency on him at the time of his arrest. The third male was found on the premises and arrested.
In the house police located 45 healthy, budding cannabis plants averaging about 120 centimetres in height, being cultivated hydroponically. About three kilograms of cannabis leaf was located on the floor around the growing cannabis plants. Each plant was in a large plastic pot connected to an irrigation system with a high wattage light above each plant. There was also a ventilation/exhaust system. The cultivation of the plants was regulated by electronic timers. Alterations had been made to electrical wiring to allow the bypass of the electricity usage meter box. Located throughout the house was a large amount of chemicals and paraphernalia used in the hydroponic cultivation of cannabis plants. NSW Police seized a key ring belonging to the accused on which was a key to the silver Hilux and a number of other keys.
EVENT 3
With respect to Event 3 it is alleged that on 15 July 2011, officers of the AFP observed the accused, AKN, drive to Macfarlane Burnet Avenue, McGregor, ACT in a silver Toyota Hilux, ACT registration ***41F. The accused went to the front door of premises on that street and remained out of sight for a short period before returning to the silver Hilux. He then left the premises in the silver Hilux.
On 6 August 2011, police arrested the accused with respect to Event 2 and seized his car keys. On the key ring were a number of other keys. On 8 August 2011, police conducted a search of premises on Macfarlane Burnet Avenue, Macgregor pursuant to a search warrant. The house was very sparsely furnished. In the lounge room there was a lounge suite and a television cabinet on top of which was a large black television. The television did not have any electrical or antenna cables plugged into it. In the kitchen, all the cupboards were bare and a large silver refrigerator was empty and not plugged into any power outlet. There was a large dining table in the area adjacent to the kitchen. In the main bedroom, there was a queen sized bed with a blanket on top of it. There were only a few items of clothing in the walk in wardrobe and no personal items in the adjoining ensuite. The other three bedrooms were unfurnished.
During the search, police located a plywood door in the wall of the garage, which is attached to the residence. Behind the door was a ladder which led down to an underground area. In this area were 98 cannabis plants being cultivated artificially. Police located two “Winfield” cigarette butts, one in the kitchen sink and one adjacent to the plywood door in the garage. DNA was extracted from the cigarettes and was found to match the DNA of the accused. The key ring and keys seized by NSW police on 6 August 2011 were released to the AFP on 19 August 2011. On 25 November 2012, AFP officers tested the keys found on the key ring on the lock for the plywood door. One key fit and operated this lock.
THE APPLICATION TO ADDUCE COINCIDENCE EVIDENCE
The Notice specifies that the Crown will seek to use the coincidence evidence to prove that the accused, AKN, did particular acts and had particular states of mind. The acts which the crown seeks to prove by adducing the coincidence evidence are:
(a)That between 18 January 2011 and 18 March 2011 the accused AKN exercised control or direction over the artificial cultivation of the cannabis at [Waratah Street premises], O’Connor, in the ACT by guarding and concealing the plants;
(b)That between 8 May 2011 and 7 August 2011 the accused exercised control or direction over the artificial cultivation of the cannabis at [Maple Crescent premises], Jerrabomberra, NSW by guarding and concealing the plants; and
(c)That between 14 July 2011 and 9 August 2011 the accused exercised control or direction over the artificial cultivation of the cannabis at [Macfarlane Burnet Avenue premises], Macgregor by guarding and concealing the plants.
The Crown will also seek to prove by adducing the proposed coincidence evidence that the accused AKN had the following states of mind:
(a)That between 18 January 2011 and 18 March 2011 the accused had the intention to cultivate cannabis believing that someone else intended to sell any of the plants or their products;
(b) That on 6 August 2011, the accused had the intention to cultivate cannabis believing that someone else intended to sell any of the plants or their products; and
(c)That between 14 July 2011 and 9 August 2011, the accused AKN had the intention to cultivate cannabis believing that someone else intended to sell any of the plants or their products;
The Coincidence Rule
The reception of coincidence evidence in criminal proceedings is governed by s 98 of the Evidence Act2011 (ACT):
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.
The Dictionary to the Evidence Act defines “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
Section 101 of the Evidence Act is also relevant, such that coincidence evidence will not be admitted unless the probative value of the evidence outweighs the prejudice to the accused.
The similarities relied upon by the DPP in relation to the three cultivations are:
(a)The three acts of cultivation occurred within a relatively short time frame, namely January to August 2011;
(b)The three acts of cultivation occurred in free-standing residential homes;
(c)In the first and third events, the residences were furnished to give the appearance of occupancy but there were no regular occupants, and in the second event, the residence was sparsely furnished;
(d)The first and third events occurred in the northern suburbs of Canberra;
(e)The first event involved the cultivation of a commercial quantity of cannabis and the third event involved the cultivation of just under a commercial quantity of cannabis;
(f)At all three houses, the electrical wiring had been modified to bypass the electricity usage metre;
(g)The accused had no public link to the three houses; and
(h)The visits of the accused to each house was [sic] invariably of a short term duration;
(i)The accused used the same vehicle to take him to and from the respective residential addresses.
The accused objects to the coincidence evidence being led. He submits that whilst the old common law doctrines associated with the reception of similar fact evidence no longer apply, there must still be something that is “striking” or “unusual” in the similarities before the evidence can be received by virtue of s 98. He submits that many of the similarities identified by the DPP are no more than “unremarkable circumstances” of offences of this type. Further, he submits that “the presence of an explanation contrary to the inference sought to be relied upon by the Crown which is real and not fanciful will mean the tendered evidence does not have significant probative value”, citing DSJ v The Queen [2012] NSWCCA 9.
As both the DPP and the accused referred to DSJ v The Queen, it is instructive to turn to this decision. DSJ and his co-accused NS were charged with insider trading offences under the Corporations Act2001 (Cth). Essentially the case against DSJ was that as an insider he possessed certain information and that, contrary to the legislation, he procured NS to apply for, acquire or dispose of certain shares or securities. The indictment contained 10 counts against each accused, reflecting what the Crown alleged was a scheme whereby DSJ would use his position to obtain inside or confidential information, and then pass it on to his trusted friend NS, whom he had recruited to purchase shares based on the information. The Crown case was circumstantial, and it sought to lead evidence with respect to each count as coincidence evidence in respect to each other count. The purpose to leading coincidence evidence was to establish that each of the accused did the acts alleged against him and each had the required state of mind on the basis that, having regard to the similarity of events, it was improbable that the events occurred coincidentally.
At first instance, Hall J determined to allow the Crown to lead the proposed coincidence evidence, and rejected associated applications by the accused to sever the indictment.
On appeal, the leading judgment was delivered by Whealy JA, with whom
Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J generally agreed.
Whealy JA saw s 98 as the statutory replacement of the common law treatment of similar fact evidence. He noted that at common law, evidence of other criminal conduct of an accused was admissible “if the objective improbability of its having an innocent explanation was such that there was no reasonable view of it other than supporting an inference that the accused was guilty of the offence charged”, citing Pfennig v R (1995) 182 CLR 461. In Pfennig v R it was held that “striking similarity” or “underlying unity” were not characteristics essential to the admission of similar fact evidence, although if it lacked those characteristics it would usually lack the required probative force for admissibility.
Turning to s 98 of the Evidence Act1995 (NSW), a provision in substantially the same form as s 98 of the Evidence Act 2011, his Honour said (at [55]–[56]):
In my opinion, it is plain that s 98, in its terms, poses this simple question: whether the evidence being considered is capable to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue. Again, in its terms, it requires the trial judge to assess whether the evidence has the capacity to that extent and for that purpose. In R v Shamouil Spigelmann CJ, in examining s 137 of the Evidence Act, pointed out that, by reason of the terminology of the Dictionary definition of “probative value”, the focus is on the capacity of the evidence to have the effect mentioned. As the Chief Justice said, “It does not direct attention to what a tribunal of fact is likely to conclude”.
Assessment of the probative value of the evidence, whether for 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 237 [60]. Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge is considering probative value has to make his own estimate or assessment of probative value predicted upon the assumption that the jury will accept the evidence.
On the question of to what extent a trial judge should consider possible alternative explanations in determining whether the proposed coincidence evidence has significant probative value as required by s 98 Whealy JA said (at [78]):
What is required is this: the trial judge must ask whether the possibility of such an alternative explanation alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, in proving 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.
On this last issue Bathurst CJ made the following additional comments (at [10]):
However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury.
Recently, in this Court, Nield AJ had occasion to consider s 98 in R v Miles [2013] ACTSC 48. The Crown in that case sought to lead coincidence evidence to establish that the accused was a participant in three separate aggravated robberies. Counsel for the accused submitted that the alleged similarities between the robberies “must be uncommon, or so distinct, as to allow a conclusion that only a restricted group could employ such a method”. Nield AJ rejected that proposition (at [19]):
Section 98 of the Evidence Act speaks of “similarities in the events or circumstances”; it does not speak of “strikingly” or “substantially” similar events or circumstances, although whether the events and/or circumstances are “striking” or “substantial” in similarity is relevant to the question of whether the evidence..., either alone or with other evidence, has significant probative value.
Counsel for the accused drew my attention to the decision of AE v R [2008] NSWCCA 52 and CGL v DPP (VIC) [2010] VSCA 26 as authority for the proposition that there must be something “striking” or “unusual” in the alleged similarities before coincidence evidence may be led. I am satisfied that these cases are not authority for this, as a general principle.
AE v R was a case where the accused was charged with multiple historic sexual offences against his daughter and step-daughter. The issue in the case was whether the events as described by the complainants had ever occurred. Similarly, CGL v DPP (VIC) involved allegations of historic sexual offending by the accused against four different child complainants. Whilst the report of the case does not say so directly, I presume, based on the age of the complainants, that the issue at trial was whether the acts as described by the complainants had occurred.
In cases where the Crown proposes to lead coincidence evidence, it is important to identify what it seeks to prove by leading the evidence. Identification of what the Crown seeks to prove is crucial to determining to what extent the proposed evidence must demonstrate a “striking similarity” to, or an “underlying unity with, the evidence of the acts said to form the basis of the charge. In sexual assault cases evidence of this type is commonly advanced by the Crown in order to prove either that the accused is the offender, or that the act said to constitute the offence actually occurred. Where the Crown proposes to lead coincidence evidence to prove the identity of the offender, it is unsurprising that the probative value to be attributed to the evidence will depend upon the Crown identifying some form of forensic signature in the evidence. Similarly, it is difficult to see how an allegation that the accused has committed other sexual improprieties with a complainant, or another person, is relevant, as coincidence evidence, to establishing that he did so on the occasion alleged in the charge; at least, absent the evidence revealing some form of forensic signature.
The circumstances of the present case are very different. The Crown does not seek to lead the coincidence evidence to prove that it was the accused who went to the Waratah Street premises in January and March 2011, nor does it seek to use that evidence to prove the fact that he went to those premises on the occasions alleged. These facts are to be proved by other evidence. What the Crown proposes to prove by adducing coincidence evidence is not that these visits occurred, or that it was the accused who made these visits. Instead, it seeks to prove the character of those visits, or, more precisely, the accused’s purpose in making those visits.
The Crown must prove, amongst other things, that the accused cultivated the cannabis found at the house at O’Connor. The term “cultivate” is defined in s 615 of the Criminal Code 2002 (ACT) to include engaging in the cultivation of the plant. In the same section, the term “cultivation” includes “guarding or concealing the plant”. As I understand it, this is the way in which the Crown alleges the accused AKN was involved in cultivating the plants found in the house at O’Connor.
The Crown will ask the Court to infer that the accused AKN engaged in the cultivation of the plants based on the surrounding circumstances, including the nature of the cultivation setup, the location of the plants in the house and the number of attendances at the house by the accused AKN. The case against the accused is largely circumstantial and the accused cannot be convicted unless his guilt is the only rational hypothesis available on the evidence. In The Queen v Hillier (2007) 228 CLR 618 Gummow, Hayne and Crennan JJ said (at [46]):
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: See, eg, Martin v Osborne (1936) 55 CLR 367 at 375, Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.
In order to convict the accused AKN of the charge, the Crown will need to prove that there is no innocent explanation for the accused’s attendances at the premises in O’Connor reasonably open on the evidence. The proposed coincidence evidence would tend to negate the possibility that the accused had a reason for attending the house at O’Connor unconnected with the cultivation of the cannabis therein. Proof that at about the same time the accused was attending the O’Connor premises, where cannabis was being cultivated, he was also attending premises in Jerrabomberra, NSW, and Macgregor in the ACT where cannabis was also being cultivated, utilising a similar cultivation method, is powerful evidence that his attendance at the premises in O’Connor was not innocent, but was, in fact, for the purpose of cultivating the cannabis.
CONCLUSION
Whilst the similarities in the events identified by the DPP are relevant, what is “striking” or “unusual” about the events is the fact that, at around the same time, the accused was attending three separate houses where cannabis was being grown artificially.
I am satisfied that the proposed coincidence evidence has, together with the other evidence the Crown intends to adduce on the trial, significant probative value. I am also satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
I therefore rule that the Crown is allowed to lead coincidence evidence as set out in the Notice at the trial of the accused.
I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 15 April 2013
Counsel for the Applicant: Mr M Thomas
Solicitor for the Applicant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr K Archer
Solicitor for the Respondent: Kamy Saeedi Lawyers
Date of Hearing: 15 February 2013
Date of Judgment: 15 April 2013
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