R v Ayman Abisaab - [2005] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AYMAN ABISAAB
Ruling of His Honour Judge Muecke
29 July 2005
CRIMINAL LAW
Multiple counts of armed robbery on separate occasions - application that the counts to be severed and tried separately - satisfaction beyond reasonable doubt that one offender was involved in all occasions constituting all counts - application refused
Criminal Law Consolidation Act 1935 s278, referred to.
R v England (2002) 219 LSJS 226, applied.

R v AYMAN ABISAAB
[2005] SADC 91

The accused is charged on Information dated 24 January 2005 with five counts of armed robbery.
By the first count he is alleged to have robbed a cashier at the Walkers Arms Hotel, Walkerville at about 11.00 pm on Sunday 14 July 2002 of the amount of $870 in cash when armed with an offensive weapon, namely a syringe.
By the second count he is alleged to have robbed a person working in the gaming lounge at the Hotel Adelaide International, North Adelaide at about 8.15 pm on Thursday 18 July 2002 of the amount of $625 in cash when armed with an offensive weapon, namely a syringe.
By the third count he is alleged to have robbed a cashier working at the CPS Credit Union, Tea Tree Plaza, Modbury at about 7.00 pm on Thursday 25 July 2002 of the amount of $18,150 in cash when armed with an offensive weapon, namely a syringe.
By the fourth count he is alleged to have robbed a person working at the Savings & Loans Credit Union, Windsor Gardens at about 3.15 pm on Thursday 13 August 2002 of the amount of $2,200 in cash when armed with an offensive weapon, namely a firearm.
By the fifth and final count he is alleged to have robbed the gaming manager of the Lion Hotel, North Adelaide at about 3.45 pm on Tuesday 27 August 2002 of the amount of $280 in cash when armed with an offensive weapon, namely a firearm.
On 22 December 2004 the accused was committed for trial in this Court. When arraigned on 24 January 2005 he pleaded not guilty to all five counts of armed robbery. By application filed on 3 June 2005 he applied to the Court to make orders that the five counts be severed and tried separately in the following manner: That Counts 1 and 2 run together, Count 3 on its own and Counts 4 and 5 run together.
The basis of the accused’s application was that:
(a) The five offences together do not together form a series of offences within Section 278 (1) of the Criminal Law Consolidation Act.
(b) These allegations are not similar in fact in that a different weapon was used in Counts, 1, 2 and 3 (syringe) to that used in Counts 4 and 5 (firearm). Further, each of the offences relates to a different location and different witnesses. In particular, the identification methods used in each of the offences is different and has provided a different identification in each count. This is particularly pertinent in Count 3 as this count pertains to the finding of DNA evidence at the scene of the crime.
(c) There is an impermissible risk of prejudice to the applicant if the charges are all heard together – in particular if Count 3 is not separated from the other counts.
I heard the accused’s application on 28 June 2005. Mr Borick QC, of senior counsel for the accused, filed and relied upon a written Outline of Argument. He made oral submissions at the hearing. The written outline included an alternative submission “that Count 3 should still be separated from the other four Counts as it involves the finding of DNA evidence at the scene and is also the Count with three witnesses all of whom made different identifications of the offender, one of those being unable to make any identification at all”.
Mr Hinton, of counsel for the Director of Public Prosecutions, also relied on a written Outline of Argument, an Appendix to that Outline and oral submissions in opposing any order or orders sought by the accused as to severance.
In their submissions to me both counsel concentrated on what they respectively submitted were the significant differences (or lack of similarities) on the one hand, and the similarities on the other hand between the circumstances and evidence regarding each of the five counts.
Section 278 of the Criminal Law Consolidation Act 1935 provides as follows:
(1)   Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)   Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately of any one or more offences charged in an Information, the court may order a separate trial of any count or counts of the Information.
(3)    This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
Mr Hinton referred me to R v England (2002) 219 LSJS 262, a decision of the South Australian Court of Criminal Appeal. He submitted that the prosecution’s case in respect of Mr Abisaab is that there is cross-admissibility of evidence on all five counts because “standing back and looking at all of the facts with respect to all counts (I should) be satisfied beyond reasonable doubt that one person committed all counts”.
Mr Hinton submitted that if I was so satisfied it would be up to the jury to consider whether it would conclude beyond reasonable doubt that one person committed all five offences and, if it was satisfied beyond reasonable doubt that the accused committed the offence in Count 3, then it could use that finding when it considered the offences in Counts 1, 2, 4 and 5. Mr Hinton submitted that the five counts were therefore properly joined (sub-s.(1) of s.278) and that there was no prejudice or embarrassment to the accused in his defence by reason of him being charged with more than one offence on the same information and there was no other reason for it to be desirable for the court to direct that the accused be tried separately on any one or more of the offences charged on the information (sub-s.(2) of s.278).
It is convenient for me first to consider the principles set out by the Court of Criminal Appeal in R v England. I draw the following principles from the judgment of Doyle CJ in that case.
What I am bound to consider on the accused’s application for severance is whether I am satisfied beyond reasonable doubt that one offender was involved in all five occasions that constitute the offences particularised on the Information upon which the accused is charged. The fact here to be proved (to support the cross-admissibility of the evidence) is whether or not the offences were committed by the one offender. It is necessary that I not assume that fact when deciding on admissibility.
In considering and deciding that issue I must consider any pattern or similarities, if any exist, and I must consider any and all dissimilarities between the occasions. I may weigh whether any similarities or dissimilarities are striking. I may consider whether any similarities as to circumstances and descriptions of the various offences go beyond mere coincidence, and whether there is any reasonable explanation for any similarities which may be consistent with the innocence of one person who is charged for each of the five offences.
In doing what I have just set out I am not required to consider the evidence relating to each occasion in isolation. I am entitled to view the occasions as a group and to have regard to the combined force of all the circumstances surrounding all five occasions.
As indicated earlier both counsel concentrated in their submissions on alleged similarities and dissimilarities between the five occasions.
I consider that there are certain similarities in the circumstances of the five occasions which I consider to be striking. They include:
·The security footage of each robbery depict the offender as stocky and having a dark beard;
·On each occasion the offender casually and quietly approached the victim who was working alone at a counter;
·On each occasion the offender spoke calmly to the victim when making his demand for money;
·On each occasion the offender wore a jacket to below his waist, dark pants, light coloured sneakers, glasses and either a beanie or a cap;
·All robberies were committed in relative proximity to each other;
·All robberies were committed in hotels with gaming rooms or in credit unions;
·All robberies were committed with a generally similar modus operandi;
·All robberies were committed within six weeks of each other;
·In three robberies (all of which occurred in July) the offender used a syringe as his weapon and in two robberies (both of which occurred in August) the offender used a gun as his weapon;
·The same person was identified from photographs as having committed the offences in Counts 1, 2 and 5;
·Three jackets found at the home of one person appear similar to jackets seen on the security video taken where the offences in Counts 1, 3 and 4 were committed;
·A particular facial feature of the person in photographs digitised from security footage taken of the offender who committed the offences in Counts 1 and 4 appears very similar;
·Descriptions of the offender given by each victim of each robbery are similar.
I acknowledge that the identification from photographs by some witnesses was not unequivocal, in respect of some others a person other than the accused was identified, and in respect of one no identification could be made. I also acknowledge some differences as to some details of the description by some witnesses of the person who committed the offences in the five counts.
Having considered the issue that I have to decide in accordance with the principles to which I have referred I am satisfied beyond reasonable doubt that one offender was involved in all five occasions that constitute the offences particularised in the five counts.
I am satisfied that the pattern of them and the similarities to which I have referred overwhelm the evidence of the identifications by two witnesses who identified different people in respect of Count 3. That is the count in respect of which the accused’s DNA has been identified as being found on a cap the offender left at the scene of that offence, and as being consistent with DNA taken from the syringe cap that was also left at the scene of that offence. I am satisfied beyond reasonable doubt that the identifications of persons in respect of Count 3 other than the person identified in respect of Counts 1, 2 and 5 were made in error and were mistaken.
Considering the evidence as a whole, and having regard to the combined force all the circumstances surrounding all five occasions, I exclude as a reasonable possibility that there was more than one offender who committed the five offences particularised in the five counts of the Information laid against the accused.
Accordingly, I conclude that the evidence in respect of all five counts is cross‑admissible on each of the other counts.
In light of my findings and conclusion I have no doubt that each of the five offences are properly joined on the same information as they form, or are part of, a series of offences of the same or a similar character.
Furthermore, I have concluded that the accused will suffer no prejudice or embarrassment in his defence by reason of being charged with the five offences on the same information, and that there is no other reason why it is desirable for me to direct that the accused be tried separately for any one or more of those offences.
The accused’s application that the counts on the Information be severed and tried separately is refused.