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

1. 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.

1. 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.

1. 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.

1. 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.

1. Section 98 of the Evidence Act requires that reasonable notice be given and “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”. There is no issue as to whether appropriate notice has been given.

1. Both coincidence incidents are the subject of charges. The ruling that I make will not affect the evidence given at trial. The only consequence of the ruling will be to determine whether or not the Crown is entitled to make a submission based upon coincidence reasoning. If there was an issue about it, the ruling might affect cross-admissibility of evidence relating to the two incidents.

1. I explained the operation of the coincidence rule in a case such as this in R v Hall [2019] ACTSC 350 (Hall) at [9]-[11]. I referred in that passage to the fact that in addition to proving by coincidence reasoning that the perpetrator was the same between different incidents, it was necessary for the Crown to identify the accused as being the perpetrator in relation to one or more of the incidents before coincidence reasoning could be applied in order to conclude that the accused committed all of the offences. In the present case, there is no direct proof that the accused was involved in either of the coincidence incidents. Rather, the anchor of the Crown case is provided by the arrest of the accused in a car said to have been involved in the incidents which contained various items stolen from the premises. The Crown then relies upon circumstantial reasoning to connect, in various ways, the accused to the coincidence incidents. It is therefore a case slightly different to the case described in Hall because it is more dependent upon circumstantial evidence than a case in which coincidence evidence is used to tie the known involvement of an accused in a crime to other similar crimes by coincidence reasoning. If analogous cases are useful, then R v MR [2013] NSWCCA 236 is one such case.

1. In this case, the Crown seeks to invoke coincidence reasoning to establish that the same group of offenders were involved in each of the two burglaries. That is simply one component of the Crown’s overall circumstantial case.

1. The similarities relied upon by the Crown were usefully summarised in a table prepared by the Crown comparing features of the incidents at the Indian restaurant and the massage premises. So far as the person alleged by the Crown to be the accused is concerned, the similarities are:

(a)a similar jacket in both incidents, including what appears in black-and-white CCTV images as a black stripe at the join between the hood and the collar;

(b)gloves with a distinctive pattern of colouring or reinforcing shown on CCTV in both incidents; and

(c)similar sports shoes with stripes on them.

1. So far as the accomplice is concerned:

(a)the wearing of a distinctive top with a gun logo on it;

(b)the wearing of similar sports shoes; and

(c)the use of a small handheld torch in both incidents.

1. So far as the incident more generally is concerned:

(a)the involvement of two people whose dress and physical appearance suggests that they are male;

(b)the use of hoods, caps and face coverings;

(c)the targeting of retail premises at local shops;

(d)the use of a crowbar to gain entry; and

(e)the theft of similar items, in particular, mobile phones.

1. Other circumstantial evidence to be relied upon by the Crown to tie the incidents together and to the accused are that:

(a)the events occurred approximately 2.2 km apart;

(b)the events occurred within 11 minutes of each other;

(c)the accused was found by police driving a vehicle with similar features to that seen in the CCTV footage of the Indian restaurant burglary;

(d)the vehicle where the accused was located later that day contained stolen property from both burglaries;

(e)the accused was wearing clothing similar to that seen to be worn by the person alleged to be him in the Indian restaurant burglary; and

(f)a Kathmandu jacket was found in the vehicle which has an appearance that is consistent with the appearance of the person alleged to be the accused at the Indian restaurant and the person alleged to be the accused at the Seven Eleven store shortly after the massage premises burglary.

1. The evidence at (a) and (b) could be characterised as similarities rather than other circumstantial evidence in that they could be said to have involved the occurrence of the event in a similar location and at a similar time. In the present case and for present purposes, how they are characterised makes little difference.

1. Counsel for the accused submitted that the gender and race of the person asserted to be the accused cannot be identified. Counsel also submitted in relation to other features identified as similarities by the Crown: that the use of a crowbar to pry open the door, the theft of mobile phones, the use of face coverings, are not unusual or uncommon features of burglaries. Counsel also submitted that the sports shoes identified and the Kathmandu jacket were of types which were not uncommon. She submitted that there was no DNA evidence connecting the accused to the jacket found in his vehicle. She also submitted that reflective stripes on clothing that might give rise to the black stripe shown on the CCTV around the burglar’s neck were not uncommon features of clothing. Further, counsel submitted that it is not possible to say whether any motor vehicle involved in the first burglary was involved in the second burglary.

1. Because of these matters, counsel for the accused contended that the evidence is not capable of having significant probative value. Further, counsel for the accused also submitted that the probative value was not outweighed by the danger of unfair prejudice to the defendant: s 101(2) of the Evidence Act, although having regard to the fact that the trial is to be before a judge sitting alone, that submission was not pressed with any vigour.

1. The Crown case is a circumstantial one. The trial judge will be asked to assess the circumstantial case presented by the Crown. The temporal and spatial proximity of the incidents are factors which increase the probative value of the similarities between the incidents. Taken individually and in isolation from the other circumstantial evidence in the case, the similarities relied upon would not have significant probative value. That is because, as counsel for the accused has pointed out, each individually could not be said to be unusual either as items of clothing or as features of burglaries. However, they are not to be assessed individually but in combination with each other and with other evidence in the case. In my view, the similarities between the two incidents, when considered in the context of their temporal and spatial proximity, are of significant probative value in establishing that the persons involved in the incidents were the same. That is because 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. That conclusion has the capacity to be significant in assessing the various strands in the Crown’s circumstantial case. That the conclusion derived from coincidence reasoning is only one strand of the overall Crown circumstantial case does not deny that the coincidence nature of the evidence has significant probative value.

1. Counsel for the accused placed reliance upon what I said in Hall at [10]. As indicated earlier in these reasons, in that case I said that for the proof of a charge it would be necessary to establish that a perpetrator of one of the events was the accused in order to provide an anchor upon which the coincidence reasoning can operate. As I have pointed out, in this case the anchor is provided not by one of the coincidence incidents but instead by the identification of the accused in the motor vehicle. The Crown case relies upon circumstantial evidence to tie the accused to each of the two coincidence incidents. That the Crown case has this structure does not deny the significant probative value of the coincidence component of the case.

1. I do not accept that the probative value is outweighed by the danger of unfair prejudice to the accused. The trial is to be a trial by judge alone. The risk of unfair prejudice is necessarily very low in those circumstances.

Orders

1. The order of the Court is:

1.     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.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 22 November 2021