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 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.

(1A) To remove any doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of

similarities in the claimed acts or the circumstances in which they occurred,

that the defendant did an act in issue in the proceeding.

(2)

Subsection (1) (a) does not apply if—

(a)	the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)	the evidence is presented to explain or contradict coincidence evidence presented by another party.

Note Other provisions of this Act, or of other laws, may operate as exceptions to
the coincidence rule.

8․	If I find that the evidence has “significant probative value”, I then need to consider s 101
of the Evidence Act which provides:

101 Further restrictions on tendency evidence and coincidence evidence

presented by prosecution

(1)	This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)	Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3)	This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)	This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.

Substantial probative value

The Drakeford robbery

9․	When Mr Sullivan robbed the grocer at Gowrie he was armed with a weapon described
as a small axe or tomahawk. He had that weapon in his possession when he was
apprehended by members of the public.
10․	The person who robbed the IGA store at Drakeford a week earlier was also armed with
a weapon, a tomahawk.
11․	There is CCTV footage available showing the weapon held by the robber in Drakeford
and the weapon held by Mr Sullivan at Gowrie. Images from those two different CCTV
recordings are reproduced below (Image 1). They show that the weapon used in the two
robberies was not merely similar, but identical. Not only is the weapon in each robbery
the same shape, size and colour, but visible in the Drakeford CCTV footage are two important features: the blade side has holes in it, and the side of the implement opposite
to the blade is shaped like a hammer.

Image 1: The weapon used during the Drakeford and Gowrie robberies.

12․	Mr Chen argued that there were dissimilarities in the weapon shown on the two different
CCTV recordings. All I can say in answer to that submission is that I have viewed the
CCTV footage repeatedly and am of the opinion that the weapon used in both robberies
was identical. In particular the holes in the blade and the hammer shape are visible in
both sets of recordings.
13․	The identical nature of the weapon used in the robbery where Mr Sullivan admits he was
the robber, and the robbery a week earlier at Drakeford, is probably enough by itself to
establish the significant probative value of the evidence regarding the Gowrie robbery as
regards to the identity of the robber who committed the Drakeford robbery. But there is
more.
14․	In each case the robber:

(a)	wore white shoes;
(b)	wore mid blue jeans;
(c)	carried the tomahawk in their raised right hand as they demanded cash;
(d)	was of slim build; and
(e)	wore black gloves.

15․	The robberies occurred on Sundays a week apart at small businesses during daylight
hours.
16․	As Mr Chen accurately points out, many of those features would be commonplace, but
it is not appropriate to look at each of the circumstances individually and decide whether
it alone has significant probative value. What I must do is look at the circumstances
together. When I do consider that, it is highly improbable that the similarities between
the two robberies, especially the weapon used, occurred merely by coincidence.

The Manuka robbery

17․	What Mr Sullivan wore when he robbed the grocer at Gowrie is beyond dispute. He was
apprehended immediately after leaving the store. He was wearing a navy blue hoodie
with the “Champion” logo in white across the chest and a pair of black track pants with
the “Ellesse” logo on the left hip. He was wearing white shoes, but these were covered
by black socks.
18․	CCTV footage showed that even though Mr Sullivan was wearing gloves, he had a red
plastic bag wrapped around the handle of the tomahawk he was holding.
19․	His face was covered in a way which showed a white stripe and a distinctive logo.
20․	Each of those features is also present in the Manuka robbery as seen on that CCTV
footage. Images from the CCTV footage taken at the Manuka and Gowrie robberies, and
where relevant, the ACT regional watch house, are reproduced below:

(a) the champion logo is clearly visible on the chest of the hoodie worn by both

robbers (Image 2). This first photo is from the Manuka robbery and the second

from the Gowrie robbery, and the third from the ACT watch house where Mr

Sullivan was taken immediately after he committed the Gowrie robbery;

Image 2: The champion hoodie worn during the Manuka and Gowrie robberies
(b)	the Ellesse logo is also clearly visible on the left hip of the track pants worn by

both robbers (Image 3);

Image 3: The black Ellesse tracksuit pants worn during the Manuka and Gowrie

robberies

(c) the robbers were wearing white shoes with a dark covering over them (Image

4);

Image 4: Shoes worn by the robber during the Manuka and Gowrie robberies
(d)	the robbers had a red plastic bag wrapped around the handle of the weapon

he was holding (Image 5); and

Image 5: The plastic bag used in the Manuka and Gowrie robberies
(e)	the same white stripe and distinctive logo can be seen on each robber’s face

covering (Image 6).

Image 6: Face covering worn by the offender during the Manuka and Gowrie

robberies

21․ In addition, like Mr Sullivan when he committed the Gowrie robbery:

(a) the Manuka robber threatened the victim of his robbery with his weapon raised

in his right hand;

(b)	he was of slim build;
(c)	his skin was white; and
(d)	he wore black gloves.

22․	That is not to say that there were no differences between the Gowrie robbery and the
Manuka robbery. One difference was the weapon carried by the robber. In contrast to
the weapon used by Mr Sullivan during the Gowrie robbery, and the robber in the
Drakeford robbery for that matter, the person who committed the Manuka robbery was
not armed with a tomahawk, instead it was a hammer.
23․	That is an important distinction, especially given that the Gowrie robbery and the Manuka
robbery occurred about three hours apart. However, no two events will be identical in
every respect. As to this, in Selby v The Queen [2017] NSWCCA 40 at [23] the NSWCCA
said:

…[I]t is not to the point merely to identify various dissimilarities. One way of explaining why

this is so is to observe that one incident occurred on a Monday, the other on a Friday. That particular dissimilarity has no bearing whatsoever on the process of inferential reasoning that it permitted.

24․	Although the fact that there are different weapons used in the two robberies is notable,
even taking that into account I am satisfied that the remaining similarities I have identified
are indeed striking, and I would describe as fanciful any suggestion that there were two
different robbers involved. In my view it is highly improbable that the similarities between
the two robberies occurred merely by coincidence, and so once again the evidence the
prosecution wishes to adduce has significant probative value.
25․	The clothing worn by the two robbers is identical in every respect. The same hoodie, the
same track pants, the unusual feature of coverings being worn over white shoes, and
the identical features of the face coverings worn by the two robbers. Added to this is the
unusual aspect of the robber in each case wrapping a plastic bag around the handle of
the weapon he was carrying despite wearing gloves.
26․	Mr Chen argues that there is no evidence as to how prevalent clothing of the type worn
by his client when committing the Gowrie robbery is in the Australian community. He
asks me to infer from my own experience that a significant proportion of the population
wears clothing that answers these descriptions. Champion hoodies and white sneakers
may well be relatively common, Ellesse track pants perhaps less so. But again, I should
not look at each circumstances individually. It is the fact that both robbers were dressed
identically at robberies which occurred about three hours apart which gives the
similarities in clothing its probative value.
27․	Other circumstances must be considered too. The photographs above show that the
robbers covered their faces with things that were identical in each robbery. Not only did
each robber carry a plastic bag, useful for carrying away the proceeds of the robbery,
but in each case the plastic bag was red and wrapped around the handle of the weapon
carried by the robber. In both cases the robbers wore white sneakers with black
coverings over them.
28․	As far as this last aspect is concerned, Mr Chen argues that there is no evidence as to
the prevalence of criminals using socks to conceal the identifying features of their shoes.
Again, that is true, but given that Mr Chen asks the Court to infer things “from its own experience” (see accused’s summary of arguments at 2.3) and in oral submissions he
asked me to take into account my experience as a lawyer and a judge, I have to say that
I cannot recall coming across this method of disguising shoes in 40 years as a lawyer
and then a judge focusing almost exclusively on criminal law.
29․	I thus conclude that the evidence the prosecution wishes to adduce concerning the
Gowrie robbery has significant probative value as regards to the identity of the robber in
the Manuka robbery.

Prejudicial effect

30․	I must next consider whether the probative value of the evidence outweighs the danger
of unfair prejudice to the accused.
31․	It is important to understand that all probative prosecution evidence has a prejudicial
effect. What I must look at is whether the evidence may cause a fact-finder to decide the
question of guilt on an improper or illogical basis. As Refshauge J did in R v Donnelly
[2016] ACTSC 80 at [43], I am happy to adopt the meaning of “unfair prejudice” as
explained by the Australian Law Reform Commission (Interim Report No 26):

A useful summary of the meaning of "unfair prejudice" is to be found in the Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) Vol 1, p. 351; [644] where it said:

By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus the evidence that appeals to the

factfinder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or

triggers other mainsprings of human action may cause the fact-finder to base his decisions on something other than the established proposition of the case. Similarly, on hearing the evidence the fact-finder would be satisfied with a lower degree of probability than would otherwise be required.

32․	Although the criminal law proceeds on the basis that juries will follow judge’s directions,
it does not mean that jurors are immune from prejudice, emotion, or illogical decision-
making. As was said by Calloway JA in R v TJB [1998] 4 VR 621 at 629:

…The law cannot shut its eyes to the facts of life. Moreover, although criminal trials are

generally conducted on the assumption that a jury will comply with the judge's directions, it is acknowledged in the authorities that warnings about propensity evidence are not always effective. A blind and unquestioning faith in the efficacy of judicial warnings would lead to the conclusion that severance should never be ordered on account of prejudice, because any prejudice at all could be overcome by judicial instruction. No one supposes that that is so.

33․	Here, the admission of the coincidence evidence would reveal to a jury that the accused
is guilty of an offence of armed robbery. That is potentially prejudicial in a case where
the accused is charged with offences of armed robbery. There is the risk that jurors will fail to give careful consideration to the particular evidence before them and give undue
weight to the fact that the accused has admitted being the robber at the Gowrie grocer.
34․	No doubt, the judge hearing the trial will give careful and extensive directions to the jury
which may overcome that problem, and it is highly likely that jurors will do their best to
follow them. However, it is naïve to think that such directions can be guaranteed to
completely eliminate the prejudicial effect of the coincidence evidence. It is probable that
they will have that effect given what we know about the care and attention that jurors
give to their role, but what I have to consider is the risk that, despite such directions,
some prejudicial effect remains.
35․	I recognise the danger of unfair prejudice to the accused. On the other hand, the
coincidence evidence easily meets the threshold of having “significant probative value”.
I repeat, the idea that there could be two different robbers involved in the Gowrie and
Manuka robberies is to my mind fanciful given the number and significance of the
similarities identified earlier. Perhaps, the probative value of the evidence concerning the
Drakeford robbery is not quite at that very high level, but it still can be easily said to have
“significant probative value”. The identical nature of the weapon together with the other
similar features of the two robberies are enough to demonstrate the very high likelihood
that it was the same robber on each occasion.
36․	As I trust I have demonstrated, the probative value of the coincidence evidence is very
high indeed and I am well satisfied that it outweighs the danger of unfair prejudice to Mr
Sullivan.

Orders

37․	The result is that the application made by the prosecution is granted and the related
application for severance of the counts made on behalf of Mr Sullivan is refused.
38․	I make the following orders:

(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.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: