R v Chifuntwe
[2017] ACTSC 133
•15 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chifuntwe |
Citation: | [2017] ACTSC 133 |
Hearing Date: | 15 May 2017 |
DecisionDate: | 15 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [27] |
Catchwords: Legislation Cited: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce coincidence evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect. Evidence Act 2011 (ACT) s 98 |
Cases Cited: | Miles v R [2013] ACTCA 52 Selby v R [2017] NSWCCA 40 R v Hile [2015] ACTSC 146 |
Parties: | The Queen (Crown) Kalonga Chifuntwe (Accused) |
Representation: | Counsel Ms S McFarland (Crown) Mr R Davies (Accused) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016 |
ELKAIM J:
The Crown has made an application for leave to adduce coincidence evidence at the trial of the accused. The trial is due to commence on 13 June 2017. It is to be a judge alone trial.
In a sense, it may have been better for this application to have been made before the Judge who is listed to hear the case. However, it has been set down and, in order to save time, it is appropriate that I deal with it.
It would, of course, be open to the Judge hearing the matter to raise the matter once more and amend any orders that I make. Similarly, the parties could, in light of the evidence that is available on 13 June 2017, including any evidence that may already have been given, renew any application that was made.
The accused is charged in relation to three events. The first is an aggravated robbery, involving the stealing of a motor car. The second is an act endangering life, which in this case is constituted by the driving of a motor car at or towards a police officer. The third is unlawfully driving a motor vehicle.
The accused has pleaded guilty to the third count, so that his involvement in that offence is both established and accepted.
The Crown wishes, by way of coincidence evidence, to lead evidence arising from the third count in order to establish the involvement of the accused in the first two counts I note that there is an interval of some days between counts one and two, but only some 20 minutes between counts two and three.
The Crown wishes to take the following evidence from the facts of the third count and use it in respect of the other two counts. Firstly, the Crown wishes to rely upon the description and type of the motor car involved; namely, a silver 2015 Mercedes-Benz C200.
Secondly, the Crown wishes to rely upon the fact that the rear passenger side window of the vehicle was smashed. That would be evidence taken from count three, where the vehicle was found to have a smashed window, and used in relation to count one, where it is anticipated that there will be evidence from the complainant, who is the owner of the car, that he was asleep in the vehicle and that the window was smashed in order to gain access to it.
The third piece of evidence sought to be relied upon is the Australian Capital Territory registration plates that were found on the vehicle when the offender was apprehended, being allegedly the same as the registration plate of the vehicle which was taken in the aggravated robbery.
Fourthly, the Crown seeks to rely upon the fact that New South Wales plates were observed in the second event and the vehicle had New South Wales plates with similarities in the third event.
The fifth piece of evidence sought to be relied upon is that there was damage to the ‘B’ pillar of the vehicle observed in the third event, said to be consistent with a police officer throwing a baton at the vehicle in the second event.
The sixth bit of evidence is that the accused is an African man, who told me that he is from the Central African country of Zambia. The Crown wishes to lead that evidence in aid of the first two counts because in both of these counts, the individual identified was said to be either an African man or an African American man. No relevant distinction is, for present purposes, drawn between an African person and an African American person.
The seventh item of evidence sought to be relied upon is that the African man was with a Caucasian man and that there were two people involved on each occasion.
The eighth piece of evidence is that there was a hat found in the rear of the vehicle in event three. The Crown wishes to use this as evidence that the same person was involved, because a white hat was observed to be worn by the driver in event two and by the alleged robber in event one.
The final piece of evidence relates to what is known as the VIN number. The vehicle in event three had the same VIN number as the vehicle that was taken in the robbery.
Mr Davies, on behalf of the accused, has only taken objection to three matters: the white hat, the presence of an African male, and the identity of the Caucasian man, to the extent that it is suggested that it is the same persons involved in all three events.
The Crown has provided me with some authorities for assistance, in particular Selby v R [2017] NSWCCA 40 and Miles v R [2013] ACTCA 52 (Miles). I have referred to a decision of Refshauge J in R v Hile [2015] ACTSC 146 (Hile).
The Crown referred me to paragraph [50] of Miles, to what may be described as an overall statement of principle:
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 liked to other events by evidence of similarities between that first-mentioned event and the other events.
In this case, the Crown submits that the similarities are the white hat in the car worn by a person, the presence of a Caucasian with an African person and the presence of two people. In Hile, there is a very useful summary of the various principles. I refer in particular to paragraph [45], where Wilson J in the New South Wales Court of Criminal Appeal set out the manner in which a court should approach the determination of whether or not evidence should be admitted under s 98 of the Evidence Act 2011 (ACT).
In roughly parallel fashion to the principles set out in Miles, the third step in the identification process is to identify the similarities in the events and/or the similarities in the circumstances in which the events occurred, by reason of whether the party tendering the evidence asserts the probability of coincidental occurrence of the events.
As far as the hat is concerned, I glean from the accused’s position that it is not so much the link from count three to count two that is important, but rather the link from count three to count one. The evidence in relation to count one concerning the hat is that the complainant described it in these terms: “Like Polo or something like that is white, the one” and “just maybe black and white. I don’t know”.
Exhibit 1 is a picture of the hat that was present in the motor vehicle. It is a very white hat, looking new or almost new, with blue writing on it. Unlike a shirt, I do not know that a hat can be described as a Polo hat although, of course, most persons would be familiar with the Polo brand. The hat in question also has no black content. I am not satisfied that there is a similarity in relation to the hat which would justify the application of s 98. I do not intend to allow it, except in relation to count two.
In respect of the person being an African male, it is pointed out on behalf of the accused that there are many African people who live in the Australian Capital Territory. Bearing in mind the time difference between events one and two, there is no other similarity besides the person being African. In other words, there is nothing such as the build or height or any particular feature of the person which might be said to be a similarity. It is simply that it is an African person.
If one were to imagine an application that a person in one event was a Caucasian and that could be led to show that a person in another event, also a Caucasian, was the same person, that application would no doubt be rejected out of hand. So the question here is: does the fact that this person is an African lead to any similarity?
I do not know how many Africans live in the ACT. I do not know if it is common to see African persons when one generally travels through the ACT. Absent any evidence of the rarity of the event, I do not think the similarity that the Crown wishes to establish is present.
Turning now to the presence of a Caucasian, there is, as I understand it, nothing about the particular Caucasian person that is said to be similar. It is, in effect, the presence of a Caucasian in all three events tied in with the presence of two people. In my view, the Crown would be permitted to lead evidence that there were two people involved, but not that one was Caucasian. I think this conclusion probably follows from the conclusion in relation to me rejecting the evidence about the African person.
I make the following orders:
(a)The Crown is permitted to lead the following evidence from the charge of drive motor vehicle without consent, to which the accused has pleaded guilty, in order to establish the involvement of the accused in Counts 1 and 2:
(i) The presence of a silver Mercedes Benz 2015 C200, applicable to counts 1 and 2;
(ii) The presence of a rear smashed passenger window, confined to count 1;
(iii) The evidence relating to the Australian Capital Territory registration plates, confined to count 1;
(iv) The evidence relating to the New South Wales plates, including their colour, confined to count 2;
(v) The damage to the B pillar, confined to count 2;
(vi) The presence of two persons in the vehicle, in respect of both counts 1 and 2; and
(vii) The vehicle identification number, confined to count 1.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 19 May 2017 |
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