R v Forrest
[2021] ACTSC 104
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forrest |
Citation: | [2021] ACTSC 104 |
Hearing Date: | 27 May 2021 |
DecisionDate: | 28 May 2021 |
Before: | Murrell CJ |
Decision: | Application granted |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – Coincidence evidence – Aggravated robbery – Identity in issue – Whether evidence has significant probative value – Whether probative value of evidence substantially outweighs any prejudicial effect |
Legislation Cited: | Crimes Act 1900 (ACT) ss 310, 381(1) Criminal Code 2002 (ACT) s 44 Evidence Act 2011 (ACT) ss 98, 101, 192A |
Cases Cited: | Dempsey (a pseudonym) v The Queen [2019] VSCA 224 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 Xie v TheQueen [2021] NSWCCA 1; 386 ALR 371 |
Parties: | The Queen ( Crown) Michael Paul Forrest ( Accused) |
Representation: | Counsel K McCann ( Crown) S McLaughlin ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number: | SCC 48, 80 of 2021 |
MURRELL CJ:
The application
The accused has been indicted on the charge that, on 6 October 2019, he attempted to commit an aggravated robbery (in that he was in company, or had an offensive weapon, or both) contrary to s 310 of the Crimes Act 1900 (ACT) (Crimes Act), by virtue of s 44 of the Criminal Code 2002 (ACT) (Criminal Code) (Charge 2).
A summary charge of possession an offensive weapon with intent, contrary to s 381(1) of the Crimes Act, is also before the Court (Charge 1), to be dealt with by the trial judge at the conclusion of the trial of Charge 2.
The trial is listed in the week commencing 13 September 2021.
The accused has pleaded guilty to an offence of aggravated robbery on 6 October 2019 (Charge 3).
The Crown has applied, pursuant to 192A of the Evidence Act 2011 (ACT) (Evidence Act), for a ruling that, at the trial of Charge 2, it may adduce evidence of Charge 3 as coincidence evidence to establish that the accused was the offender in Charge 2. If the accused is convicted, the Crown will seek to rely on evidence of Charge 2 to prove Charge 1.
The Crown evidence supporting the charges
Charge 1
At about 5 AM on 6 October 2019, in the suburb of Downer, the complainant was delivering newspapers when he saw two people wearing “all-black”, both of whom were wearing “hoodies”. One was a tall, slender Caucasian man whose face was covered, in black, possibly by a bandanna. The second person appeared to be female. She was Caucasian, slim and “a bit shorter than the guy”. The man pointed what appeared to be a 20-centimetre-long firearm at the complainant. It “looked like just a handgun”, although it could have been a water pistol.
Charge 2
Between about 5 AM and 5:20 AM on 6 October 2019, the occupant of a residence about 700 metres from the site of Charge 1 heard rattling at a security door. When he called out, “who is that?”, a male voice responded with words to the effect of, “Are you the one who owes me money?” The occupant told the man that he had “the wrong person”. The intruder then demanded the occupant’s car keys.
A few moments later, the occupant heard a sound in the lounge room. He went to a window that was partially open. He saw a tall Caucasian man wearing a cap and a dark, heavy jacket. He was about six feet tall and had blue eyes. The occupant estimated that the man was in his mid-to-late 20s. His face was covered with a red bandanna and he was holding what appeared to be a black, sawn-off, single barrel, bolt-action or lever action firearm with a wooden stock. The firearm was quite a large, heavy and old-fashioned firearm that was “definitely shortened”. He estimated the length of the firearm to be 30 to 45 cm. A “very short” woman in “a dark, bulky jacket” was standing behind the man. The man pointed the firearm through the open window at the occupant’s stomach and made threatening gestures with it, while yelling at the occupant to give him his car keys. After a brief argument with the occupant, the man and woman fled the scene.
A female occupant heard the conversation between the male occupant and the intruder and also heard a woman’s voice in the background. As she was calling 000, she saw “a brown sawn off shot gun come through the window” and estimated it to be about 60 centimetres long. It was a “bolt action thing” that was “fairly short”. It had two barrels, side-by-side. The barrel was 10 or 15 centimetres in length. Part of the item was wooden, and it looked “fairly new”. The male occupant told her that the assailant had been wearing a red bandanna across his face.
Charge 3
Between about 5:30 and 5:38 AM on 6 October 2019, an occupant of a residence about 750 metres away from the residence in Charge 2 was awoken by banging on the door. He opened the door. A man (the accused) and his female companion forced their way inside. The occupant described the accused as a Caucasian man who was wearing dark clothes. He held a “shot gun” that was “quite short”, had a “bolt action kind of protruding thing”, a single barrel that was quite wide, darkish grey and 11 or 12 mm across, and a “curvier, longer handle” which was black. He pointed the firearm at the occupant and demanded the keys to his car. The occupant’s Volkswagen Polo vehicle was parked at the front of the residence. The occupant handed the keys to the accused, who immediately left in the car, in the company of his female companion. According to a police officer, this occupant stated to police that, on opening the door, he had seen “two unknown persons with balaclavas”.
A second occupant was awoken by a knock on the front door or by shouting and heard “one to two male voices” and a female voice. He concluded that there were three or four intruders and fled the premises.
On 9 October 2019, the Volkswagen Polo vehicle was located. Inside the vehicle was a black bandanna with red tartan checks on which the accused’s DNA was found. The accused’s DNA was found on a tape lift from the interior surfaces in the driver’s area, and his fingerprints were found on the vehicle.
The coincidence rule
Section 98 of the Evidence Act 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 omitted)
There is no dispute that the Crown has complied with the s 98 notice requirements.
Section 101(2) of the Evidence Act provides further restrictions on the tender of coincidence evidence:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)…
(2)… coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
…
Section 98 does not apply to mere circumstantial evidence tendered to prove an offence. Rather, it applies to evidence that is led to persuade the factfinder to draw an inference that, by reason of similarities between two events, it is improbable that they occurred coincidentally. It is an exception to the general principle that evidence of another event relating to an accused is inadmissible to prove an element of an offence against the accused: Dempsey (a pseudonym) v The Queen [2019] VSCA 224 at [66].
In R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [31], Simpson J (McClellan CJ at CL and Fullerton J agreeing) said that the process to determine the admission of evidence under s 98 was as follows.
· the first step is to identify the “particular act of a person” or the “particular state of mind of a person” that the party tendering the evidence seeks to prove;
· the second step is to identify the “two or more events” from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the “particular act” or had the “particular state of mind”;
· the third step is to identify the “similarities in the events” and/or the “similarities in the circumstances in which the events occurred” by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
· the fourth step is to determine whether “reasonable notice” has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
· the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, “have significant probative value”;
· in a criminal proceeding, if it is determined that the evidence would have “significant probative value”, the sixth step is the determination whether the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 101(2)).
· the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
Or, as stated in R v Kandola [2016] ACTSC 395 at [14], the questions for the Court on an application by the prosecution to adduce coincidence evidence are as follows.
(a) Has the tendering party identified a particular act or state of mind that is in issue?
(b) What are the two or more events that are said to be similar?
(c) Assuming the factfinder accepted that the events in question occurred [i.e. assuming witness credibility], are the similarities in the events or the circumstances in which they occurred such that the factfinder could consider that it was improbable that the events were merely coincidental?
(d) If the factfinder accepts that coincidence was improbable, would this have significant probative value, that is, would it be significant, important or influential to proving that the accused did the particular act or had the particular state of mind that is in issue?
(e) Does the probative value of the coincidence evidence substantially outweigh any prejudicial effect? See R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [31]; R v Donnelly [2016] ACTSC 80 at [9] and R v Klobucar [2016] ACTSC 23; 305 FLR 445 at [49].
The significance of the evidence is to be assessed in the context of other evidence, including other purely circumstantial evidence.
While the existence of dissimilarities is not critical to a determination of the improbability of coincidence or the probative value of coincidence evidence, dissimilarities may inform an evaluation of improbability or probative value. In Selby v The Queen [2017] NSWCCA 40 at [23]–[24] and [26], the NSW Court of Criminal Appeal said:
… [I]t is not to the point merely to identify various dissimilarities. …
The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence.
…
The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. …
This passage was recently approved by the NSW Court of Criminal Appeal in Xie v TheQueen [2021] NSWCCA 1; 386 ALR 371 at [781].
Consideration
Act in issue
An act (or fact) in issue at the trial of Charge 2 will be whether the accused was the offender.
Events said to be similar
The Crown seeks to tender evidence of Charge 3 in support of the argument that, given the similarities between Charge 3 (an aggravated robbery in which the accused was the offender) and Charge 2, it is improbable that the offences were committed by different offenders.
Similarities between the events supporting the improbability of coincidence
The Crown says that the events are similar in the below respects. The accused says that dissimilarities in relation to the firearm, the face coverings and clothing worn by the perpetrators, and the number of reported offenders are such as to significantly undermine the improbability of coincidence.
The similarities and dissimilarities are summarised below.
Charge 2 Charge 3 Number and gender of intruders According to both eyewitnesses, there were two intruders, one male and one female. According to the main eyewitness, there were two intruders, a male and a female.
A second occupant concluded that there were three or four intruders, one female and several males, seemingly based on what he heard.
Attire of male offender A tall Caucasian man with blue eyes, mid to late 20s, wearing a cap and a dark heavy jacket, and a red bandanna across his face. A Caucasian man wearing dark clothes.
A police officer was told that the man was wearing a bandanna.Firearm According to the main eyewitness, the firearm was black, sawn off, single barrel bolt action or lever action firearm with a wooden stock, sawn off, old-fashioned, 30 to 45 centimetres long.
According to the other witness, it was a brown sawn off shot gun, bolt action, fairly short, two barrels, 60 cm long and the barrel was 10 or 15 cm long, looked fairly new
The shot gun was quite short, bolt action, single barrel that was quite wide, darkish grey, and 11 or 12 mm across, with a curvier, longer handle that was black. Nature of demand After alleging that money was owed, the male pointed the firearm at the occupant’s stomach and made threatening gestures with it while demanding the car keys. The accused demanded car keys while pointing the firearm at the occupant.
Do the similarities support the improbability of coincidence?
In this case, the Crown relies upon the following additional circumstances.
(a)The events occurred approximately 750 metres’ distance from each other and there was a lapse of 20–40 minutes between the two events.
(b)At the conclusion of Charge 2, the perpetrators left on foot.
(c)A bandanna with red tartan checks on black background which contained the accused’s DNA was found in the vehicle that had been stolen by the accused and his female companion in the course of Charge 3.
The accused relied on dissimilarities as undercutting the improbability of coincidence.
First, the accused pointed to the differences between the descriptions of the firearm used in Charge 2 and Charge 3.
I do not consider that the differences substantially undermine the improbability of coincidence. There were several substantial differences in the descriptions provided by the two witnesses to the firearm used in Charge 2. It is not surprising that, when confronted by firearm, witnesses may be shocked and misremember details. Significantly, both witnesses to the firearm used in Charge 2 and a witness to the firearm used in Charge 3 described it as bolt action. The accused’s legal representative conceded that shot guns were not bolt action, illustrating the proposition that the two witnesses who described the firearm that they saw as a shotgun (one referring to the firearm in Charge 2 and the other to the firearm in Charge 3) were probably wrong in that respect.
Second, the accused said that the description of the male offender’s general attire differed as between Charges 2 and 3.
I do not consider that there is a significant difference; merely that the witness to Charge 3 gave only a brief description of attire.
In relation to both charges, witnesses said that the male offender was wearing a bandanna (in relation to Charge 3, the witness did not give the evidence directly, but it was given through the police officer to whom the witness made a complaint). In relation to Charge 2, the eyewitness referred to a red bandanna. This evidence fits with the circumstantial evidence of a black bandanna with a red tartan pattern containing the accused’s DNA that was found in the vehicle that had been stolen by the accused.
Third, the accused relied on the evidence of a second occupant of the premises the subject of Charge 3, who thought that he heard several male voices, as well as a female voice. However, the principal eyewitness referred to only one male and one female, and, on the application, the Court must proceed on the basis that the evidence of the principal eyewitness is accepted as reliable.
Finally, the accused noted that, in relation to Charge 2, the male offender asserted some familiarity with the occupant as an apparent motivation for the offending, but a similar comment was not made in relation to Charge 3. I do not consider this difference to be particularly relevant to an assessment of whether dissimilarities support the improbability of coincidence.
Having regard to the circumstantial evidence, despite the dissimilarities, I consider that the similarities between Charges 2 and 3 are such as to make it improbable that the offences were committed by different offenders.
Probative value of the evidence
The evidence of Charge 3 is of high probative value in identifying the perpetrator of Charge 2 as the accused.
Does the probative value of the evidence substantially outweigh any prejudicial effect?
As the High Court identified in R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56, the expression “prejudicial effect” in s 101 of the Evidence Act 2008 (Vic) (which is substantially the same as s 101 of the Evidence Act) does not refer to harm associated with the probative value of the evidence. Rather, it refers to the risk of unfair prejudice, for example, that the evidence will be used to apply illogical reasoning in circumstances where the risk could not be adequately addressed by appropriate directions.
The defence does not rely on any particular prejudice.
Accordingly, I find that the probative value of the evidence substantially outweighs any prejudicial effect.
Conclusion
In the trial of the accused for Charge 2, the Crown may tender evidence of Charge 3 as coincidence evidence.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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