R v Donnelly

[2016] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Sullivan
Citation:	[2023] ACTSC 317
Hearing Date:	3 November 2023
Decision Date:	3 November 2023
Before:	Berman AJ
Decision:	(1) That the prosecution be permitted to adduce coincidence evidence as notified in the Notice of Intention to adduce coincidence evidence dated 11 August 2023. (2) The application for severance of the counts is dismissed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – coincidence evidence – series of robberies – CCTV footage – where the offender was apprehended at the scene of the last robbery – identification evidence – similar clothing and weapon – significant probative value – risk of unfair prejudice
Legislation Cited:	Evidence Act 2011 (ACT), ss 98, 101
Cases Cited:	CW v The Queen [2010] VSCA 288 R v Donnelly [2016] ACTSC 80 R v TJB [1998] 4 VR 621 Selby v The Queen [2017] NSWCCA 40
Text Cited:	Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) Vol 1
Parties:	Director of Public Prosecutions Joshua John Sullivan (Accused)
Representation:	Counsel
C Daly (DPP) E Chen (Accused)
Solicitors
ACT Director of Public Prosecutions
Legal Aid ACT (Accused)
File Numbers:	SCC 126, 186 of 2023
BERMAN AJ:
Introduction
1․	On 13 November 2022 the IGA store at Drakeford was the scene of a robbery.
2․	On 20 November 2022 at about 6:30 am a newsagency at Manuka was also the scene
of a robbery.
3․	And finally, a little later on 20 November 2022 at about 9:40 am, a grocer at Gowrie was
the scene of the robbery. Joshua Sullivan was the robber. He was apprehended by
members of the public, as he made his getaway. He has pleaded guilty to that robbery.
4․	The prosecution has charged Mr Sullivan with the earlier two robberies. He has pleaded
not guilty to them.
5․	The prosecution has applied to adduce coincidence evidence based on the similarities
between the robbery to which Mr Sullivan has pleaded guilty and the other two robberies.
Mr Sullivan has made an application that the counts in relation to the early two robberies
be severed from each other. Both parties accept that if the prosecution application is
successful Mr Sullivan’s application should be refused, and if the prosecution application
is unsuccessful, Mr Sullivan’s application should be granted.
6․	Although there is no need for any “striking similarity” to be demonstrated before
coincidence evidence has significant probative value (see CW v The Queen [2010]
VSCA 288 at [22]) where there is such a similarity, significant probative value is easily
demonstrated. In this case some of the features of the earlier two robberies are, in my
view, easily described as being strikingly similar to features of the robbery to which Mr
Sullivan has pleaded guilty.

The law

7․	Of course, the starting point in examining the admissibility of the evidence is the
coincidence rule in s 98 of the Evidence Act 2011 (ACT). It provides:

98 The coincidence rule

(1) Evidence that 2…