R v Cook

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.