R v Cook - [2021] ACTSC 270

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cook
Citation:	[2021] ACTSC 270
Hearing Date:	13 October 2021
DecisionDate:	13 October 2021
Before:	Mossop J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility – advance ruling application to adduce coincidence evidence – where trial to be by judge alone – where the Crown case is circumstantial – two burglaries involving similarities of clothing and features – similarities of significant probative value given the temporal and spatial proximity of the incidents – risk of unfair prejudice very low in a trial by judge alone – evidence admissible for coincidence purposes
Legislation Cited:	Evidence Act 2011 (ACT), ss 98, 101(2), 192A
Cases Cited:	R v Hall [2019] ACTSC 350 R v MR [2013] NSWCCA 236
Parties:	The Queen ( Crown) Shane Cook ( Accused)
Representation:	Counsel K Lee ( Crown) K Musgrove ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Accused)
File Number:	SCC 82 of 2021

MOSSOP J:

Introduction

Shane Cook is facing nine counts on an indictment dated 20 May 2021. Those charges relate to two burglaries which took place on 16 October 2020. The first was at a restaurant known as Five Rivers Indian Cuisine and the second was at premises occupied by Dong Fang Massage.

The proceedings have been listed for trial commencing on 24 November 2021. An election for trial by judge alone was filed on 20 August 2021. By application in proceeding dated 1 September 2021, the Crown seeks a ruling under s 192A of the Evidence Act2011 (ACT) that it be permitted to adduce coincidence evidence in accordance with a notice dated 17 August 2021.

The Crown case is that at 5:46am on 16 October 2020, the accused and another unidentified male arrived at the Swinger Hill shops, gained entry into the Five Rivers Indian Cuisine premises using a crowbar and stole an Apple iPhone. 11 minutes later, two males wearing what the Crown says is the same clothing broke into the Dong Fang Massage premises at the Isaacs shops. That is located 2.2 km or five minutes’ drive from the Swinger Hill shops. The two men tried unsuccessfully to gain entry using a crowbar before smashing the glass entry panel. They stole a number of items from inside the premises, including a cabinet drawer and a mobile phone.

The accused was apprehended by police later that day. On the Crown case, the clothes that he was wearing corresponded to those shown in the CCTV of the earlier burglaries. The Crown alleges that the vehicle in which he was found was the same as that shown as being involved in the Indian restaurant burglary. Items stolen from the premises, including the cabinet drawer and the two mobile phones (one from each of the burglaries), were located in the car.

Section 98 of the Evidence Act requires that reasonable notice be given and “the court thinks that the evidence will, either by itself…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cook

Details

AGLC: R v Cook [2021] ACTSC 270
Case: [2021] ACTSC 270
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown is prosecuting Shane Cook on charges related to two burglaries that occurred on 16 October 2020. The first burglary took place at Five Rivers Indian Cuisine, where the accused, along with an unidentified male, allegedly gained entry using a crowbar and stole an Apple iPhone. Approximately 11 minutes later, the accused and another unidentified male are alleged to have broken into Dong Fang Massage, located 2.2 kilometres away, where they attempted to break in using a crowbar and stole several items, including a mobile phone. The Crown has applied for an advance ruling to adduce coincidence evidence under section 192A of the Evidence Act 2011 (ACT), which will be considered during the trial by a judge alone.

The legal issues before the court were whether the evidence of coincidence would have significant probative value and whether the probative value would be outweighed by the danger of unfair prejudice. The Crown argued that the similarities between the two incidents, including the clothing worn by the accused, the use of a crowbar, and the targeting of retail premises, were of significant probative value. The defence contended that the similarities were not unique and could not be said to have significant probative value. Additionally, the defence argued that the probative value of the evidence would be outweighed by the danger of unfair prejudice to the accused.

The court found that the similarities between the two incidents, when considered in the context of their temporal and spatial proximity, were of significant probative value in establishing that the persons involved in the incidents were the same. The court held that it would be open to the trial judge to reason that it was improbable that the collection of identified similarities would exist if the two offenders were not the same. The court further found that the probative value of the coincidence evidence was not outweighed by the danger of unfair prejudice to the accused, particularly because the trial would be conducted by a judge alone.

The court granted the Crown's application, holding that the evidence set out in the Notice of Intention to Adduce Coincidence Evidence dated 17 August 2021 is admissible for coincidence purposes at the trial of the accused.

Orders