R v Dau Deng; R v Hall; R v Carberry

[2021] ACTSC 163

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dau Deng; R v Hall; R v Carberry
Citation:	[2021] ACTSC 163
Hearing Date:	19 July 2021
Decision Date:	20 July 2021
Before:	Mossop J
Decision:	See [20]
Catchwords:	CRIMINAL LAW – EVIDENCE – Coincidence evidence – admissibility – Evidence Act 2011 (ACT) s 98 and s 94(3) – meaning of “two or more events” – application of s 98 where both
incidents relied upon are charged incidents – scope of the exclusion in s94(3) – Crown not precluded from adducing
coincidence evidence
Legislation Cited:	Evidence Act 2011 (ACT), ss 9, 94(3), 98, 101, 192A Legislation Act 2002 (ACT), s127(1)
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Milat (Unreported, Supreme Court of New South Wales, 5 September 1996) R v Tamotsu [1999] NSWCCA 400; 109 A Crim R 193
Texts Cited:	Australian Law Reform Commission, Review of the Uniform Evidence Acts (Discussion Paper No 69, July 2005) Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) Jill Anderson, Jill Hunter and Neil Williams, The New Evidence
Law: Annotations and Commentary on the Uniform Evidence Acts
(LexisNexis Butterworths, 2002) Stephen Odgers, Uniform Evidence Law (Lawbook Co, 16th ed, 2021)
Parties:	The Queen (Applicant) Garang Dau Deng (Respondent)
Marley Hall (Respondent) Keith Carberry (Respondent)
Representation:	Counsel
P Dixon (Applicant) T Jackson (Dau Deng)
P Edmonds (Hall) M Kearney (Carberry)
Solicitors
ACT Director of Public Prosecutions (Applicant) Legal Aid ACT (Dau Deng)
Paul Edmonds & Associates (Hall) Michael Lalor (Carberry)
File Numbers:	SCC 15 of 2021 SCC 143 of 2021 SCC 123 of 2021
MOSSOP J:
Introduction

1.       In this case, the Crown alleges that the three accused were involved in two separate incidents. The Crown case as to identification is stronger in relation to the second of the two incidents. The Crown seeks to rely upon coincidence reasoning in order to attempt to establish that the three persons who participated in the first of the incidents are the same people that participated in the second.

2. In order to be permitted to do so, the Crown must meet the requirements of s 98 and s 101 of the Evidence Act 2011 (ACT). There is no issue as to whether adequate notice has been given: see s 98(1)(a).

3.       The submissions made by the accused, who were separately represented, raised both factual and legal issues. In relation to the factual issues, the submissions were based upon material contained in the Crown brief. The submissions were not limited to submissions about the extent of similarities as between the two incidents. Rather, they involved contesting what was likely to be the evidence in relation to the factual basis for the asserted similarities. For example, one of the asserted similarities was the involvement of a white SUV. The submissions pointed to evidence that in fact in relation to the first incident, the vehicle may have been black or blue. Similarly, in relation to that incident, evidence was pointed to suggesting that the vehicle was a Sedan rather than a SUV.

4. In this case, any coincidence ruling would not, subject to one qualification, have affected the evidence that was to be given at the hearing. That is because both incidents are charged incidents. The effect of a coincidence ruling would be to permit that evidence to be used for the purpose of making a coincidence submission. It would be possible so long as the similarities asserted by the Crown were similarities which the court could conclude were reasonably open to a jury (even if not the only conclusion open to a jury) to have made a ruling as to the use of the evidence for coincidence reasoning. However, given the uncertainty as to the evidence that would ultimately be given by witnesses in relation to the asserted similarities, there was a risk that any ruling would not finally determine the issue because the evidence at trial may well differ from what would be assumed to be the evidence based upon the sometimes conflicting material in the Crown brief. Further, any analysis of that differing material would require extensive examination of the material for the purposes of making the ruling, a process which would be less burdensome for the trial judge who had actually heard the evidence as it was given. For those reasons I determined that it was not appropriate to make a ruling under s 192A of the Evidence Act in relation to that aspect of the application. The one qualification that I referred to in relation to the proposition that the evidence of both incidents would still be led at trial was that counsel for Mr Hall indicated that if the coincidence ruling was adverse to the Crown, then he would make an application for severance of the indictment. I do not consider that possibility alone would warrant engaging in the factual exercise necessary to make a ruling on the whole of the coincidence issue.

5.       However, counsel for Mr Carberry put forward two legal arguments which, if correct, would be fatal to the Crown application for an order permitting a coincidence submission.

6. The first was that s 98 of the Evidence Act can have no application where both of the incidents relied upon are charged incidents. Section 98(1) provides:

98 The coincidence rule

(1) Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless

–

(a) the party seeking to present the evidence gave reasonable notice in writing

to each other party of the party’s intention to present the evidence; and

(b)	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.
Note	One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.

7. Counsel placed reliance upon the terms of the note in order to make the submission that only one of the events may be a fact in issue in the proceedings. Notes do not form part of the Act: s 127(1) of the Legislation Act 2001 (ACT). Therefore, the effect of the note could only be as extrinsic material relevant to determining the intention of the legislature.

8. The source of the note can be traced back to the uncertainty expressed about the operation of s 98 of the Evidence Act in Jill Anderson, Jill Hunter and Neil Williams, The

New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts

(LexisNexis Butterworths, 2002) at [98.20], where the authors said of s 98 as it was then

in force, “[t]he provision is ambiguous regarding the required number of events in that it is unclear whether the event giving rise to the subject charge or cause of action ‘counts’ as one of the necessary ‘two or more’ events.” The commentary then went on to refer to

the decision of Hunt CJ at CL in R v Milat (unreported, Supreme Court of New South
Wales, 5 September 1996) (Milat), a decision to which I will return.

9.       This commentary was picked up in the Australian Law Reform Commission’s (ALRC)

Review of the Uniform Evidence Acts (Discussion Paper No 69, July 2005) at

[10.27]-[10.30]. The Commission referred to the commentary and said, “[i]t was the

intention of the original ALRC proposals that the events which are the subject of the

charge would be included in appropriate cases.” The discussion paper also made

reference to the decision in Milat. The Commission did not consider that there was any ambiguity in the provision. However, in the final report, ALRC Uniform Evidence Law (Report No 102, December 2005) at [11.26]-[11.30], although the Commission maintained the view that it was not ambiguous, the Commission recommended the

insertion of a note “stating that the events that may be considered include an event which is the subject of the proceeding”. That was ultimately included in the legislation and the

section including the added note was picked up when the Evidence Act was enacted.

10.     The asserted ambiguity which led to this process was an ambiguity as to what to count

in order to decide whether you had “two or more events”. It was a counting issue rather

than an issue as to whether or not matters in issue in the proceedings could be considered. Obviously, the matters in issue in the proceeding could be considered because that is inevitably the nature of a coincidence submission. The counting issue was whether or not, in a usual case involving a single charge, you needed only two events (one being the fact in issue and one being a similar incident) or whether you needed a minimum of three events (one being the fact in issue and two similar incidents). The issue was not one directed to whether or not more than one charged incident could be used for coincidence purposes.

11.     The example given in the text referred to, the discussion paper and the final report is that of Milat. In that case, although the reasoning is not explicitly directed to the current issue,

it is implicit in Hunt CJ’s approach that it was not necessary to have uncharged acts for

the purposes of a coincidence submission. In that case, in ruling on an application for a separate trial, his Honour dealt with the application of coincidence reasoning to the seven

murders as well as the attack on one person who escaped. His Honour’s approach would

be inconsistent with the approach contended for by counsel for Mr Carberry to the note that was subsequently inserted, even though that note was intended to clarify rather than change the law and the Commission had referred to the decision in Milat without any disapproval.

12.     The approach taken in Milat, which permitted coincidence reasoning to be applied using only charged acts, is consistent with the approach subsequently taken by the New South Wales Court of Criminal Appeal in R v Tamotsu [1999] NSWCCA 400; 109 A Crim R 193 (Tamotsu). In that case, both incidents relied upon for coincidence purposes were

charged incidents, one being a conspiracy to import heroin in a “body pack”, the other

being an importation of heroin using such a pack. Spigelman CJ (with whom Dunford and Hidden JJ agreed) upheld a coincidence ruling that permitted reliance upon the similarity between the two incidents for coincidence purposes.

13. The addition of the note in s 98 of the Evidence Act was not intended to alter the law. It was merely designed to clarify a purported ambiguity in relation to the counting exercise.

Insofar as it referred to “one of the events”, its drafting is unfortunate because it deals

only with a case in which there is only one charged incident involving relevant similarities. However, having regard to the fact that the note is not part of the Act and to its genesis in the report of the ALRC, I do not consider that it should be interpreted as altering the operation of s 98 as it was applied in Milat and Tamotsu. Therefore, I would not rule the coincidence evidence inadmissible on the basis of the submission of Mr Carberry relied upon the terms of the note.

14.     Finally, on this point, I note that counsel for Mr Carberry relied upon the decision of the New South Wales Court of Criminal Appeal in R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487. Counsel submitted that the decision of Simpson J (with whom McClellan CJ at CL and Fullerton J agreed) supported the proposition that coincidence evidence needed to be evidence in relation to incidents that were not the subject of

charges. In my view, that is to misunderstand her Honour’s reasons. In that case, the

Crown identified as an aspect of similarities between two incidents that each accused was present as an offender. However, that involved assuming to be correct the contention that the coincidence evidence was designed to prove. It obviously involves a logical fallacy to put forward as the similarities the fact which by the coincidence submission the Crown is trying to prove. In this case, it would be equivalent to listing as a similarity between the events, the fact that each of the accused was present in both incidents. The reasons of Simpson J are designed to kill off this logical fallacy and do not support the contention that only one of the events giving rise to the coincidence submission can be the subject of a charge.

15. The second argument put forward by Mr Carberry was that s 94(3) of the Evidence Act meant that the coincidence rule did not apply because the evidence in question was evidence of conduct which was a fact in issue. Section 94(3) provides:

(3)	This part does not apply to evidence of –
(a) the character, reputation or conduct of a person; or
(b) a tendency that a person has or had;
if that character, reputation, conduct or tendency is a fact in issue.

16. Counsel then submitted that if the part did not apply, then the common law test for similar fact evidence would apply. The submissions made by counsel for Mr Carberry were inadequate to properly explain what the scope of the exclusion in s 94(3) of the Evidence Act was in the context of a coincidence application. Counsel for Mr Hall submitted that the submission made by counsel for Mr Carberry was not correct and that so far as tendency and coincidence evidence was concerned, part 3.6 of the Act represented a code so that if s 94(3) had the effect that part 3.6 did not apply, then the evidence would be admissible in accordance with the other provisions of the Evidence Act.

17.     The text in Stephen Odgers, Uniform Evidence Law (Lawbook Co, 16th ed, 2021) at

[94.90] indicates that “fact in issue” should be understood to mean “ultimate fact in issue”

and give some examples of where s 94(3) of the Evidence Act might operate. As I have indicated, the submissions made on behalf of Mr Carberry, even read in combination with the annotations of Mr Odgers, were not sufficient to permit a full understanding of

the operation of s 94(3) insofar as it related to “conduct”.

18. However, in any event, I accept the submissions made on behalf of counsel for Mr Hall that if s 94(3) of the Evidence Act excluded from the scope of part 3.6 evidence of the two incidents in the present case, then there would be no barrier to the admission of that evidence because it was unquestionably relevant evidence and there was no other barrier upon making a coincidence submission in relation to it. The provisions of part 3.6 necessarily intend (for the purposes of s 9 of the Evidence Act) the exclusion of the principles of common law in relation to the subject matters addressed in s 94 in a way which makes the coincidence rule inapplicable to them but otherwise leaves them subject to the provisions of the Act. That appears to be consistent with the approach taken in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [31]-[32] to the operation of part 3.6. I do not accept that in cases where part 3.6 does not apply there is a reversion to the common law rules relating to similar fact evidence. Thus, notwithstanding the inadequacies of the submissions made on behalf of Mr Carberry in relation to the proper scope of s 94(3), it is possible to safely conclude that this argument would not present a barrier to the use of the evidence to be led in the case for coincidence purposes, although it would affect whether or not s 98 had any application.

19.     Therefore, while it is not possible to completely deal with the Crown’s application, it is

possible to make rulings which will narrow the scope of the issues required to be determined by the trial judge. Because I have only made the ruling in relation to s 94(3) of the Evidence Act on the basis that I have, namely that its application would not lead to the revival of the common law test but would instead lead to their being no applicable constraint upon the admission of coincidence evidence, I will make directions requiring further submissions on that issue if any party wishes to pursue it.

20.     I will therefore make the following ruling:

1.       The Crown is not precluded from adducing the evidence notified in the Notice of Intention to Adduce Coincidence Evidence dated 11 June 2021 by reason only of:

(a)	the fact that both events referred to in s 98 of the Evidence Act 2011 (ACT) would be events which are the subject of charges in the proceedings;
(b)	the operation of s 94(3) of the Evidence Act.

2. I direct that if any party wishes to contend that the exclusion in s 94(3) of the Evidence Act applies in the circumstances of this case, it must file and serve written submissions limited to not more than 10 pages no later than 16 August 2021 and each other party must file submissions in reply limited to no more than 10 pages by 27 August 2021.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 20 August 2021