R v Gale; R v Duckworth

[2012] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Gale; R v Duckworth [2012] NSWCCA 174
Hearing dates:	3 August 2011
Decision date:	17 August 2012
Before:	McClellan CJ at CL at [1]; Simpson J at [2]; Fullerton J at [51]
Decision:	The Crown appeal dismissed
Catchwords:	CRIMINAL LAW - interlocutory Crown appeal - larceny - admissibility of evidence - coincidence evidence - conditions of admissibility - reasonable notice - formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value - evidence not admissible if conditions not met - process for determination of admissibility - differing functions of judge and jury - whether evidence capable of having significant probative value - whether probative value of evidence substantially outweighs its prejudicial effect - probative value does not substantially outweigh prejudicial effect - Criminal Appeal Act 1912, s 5F(3A), s 5F(5) - Evidence Act 1995, s 97, s 98, s 100(2), s 101, s 165
Legislation Cited:	Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	DSJ v R; NS v R [2012] NSWCCA 9 House v The King [1936] HCA 40; 55 CLR 499 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 DAO v R [2011] NSWCCA 63 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v RN [2005] NSWCCA 413 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Category:	Principal judgment
Parties:	2008/170921 Director of Public Prosecutions (Applicant) Brett Terence Gale (Respondent) 2008/268965 Director of Public Prosecutions (Applicant) Wayne Alfred Duckworth (Respondent)
Representation:	Counsel S Dowling (Applicant) C Bruce SC (Gale) PD Rosser QC/D Moss (Duckworth) Solicitors Director of Public Prosecutions (Applicant) Aboriginal Legal Service (Gale) Scott James (Duckworth)
File Number(s):	2008/170921; 2008/268965
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-04-05 00:00:00 Before: Black DCJ File Number(s): 2008/170921; 2008/268965

Judgment

1. McCLELLAN CJ at CL: I agree with Simpson J.

1. SIMPSON J: This is an appeal by the Director of Public Prosecutions ("the DPP") pursuant to s 5F(3A) of the Criminal Appeal Act 1912, against a ruling made on 5 April 2011 on the admissibility of evidence in criminal proceedings in which each of the respondents is charged with larceny, allegedly committed on 26 June 2006. Such an appeal lies only if the ruling "eliminates or substantially weakens" the prosecution case. Neither respondent has argued that the ruling does not have that quality, and there is therefore no jurisdictional hurdle to the appeal. The evidence in question is sought to be tendered as coincidence evidence pursuant to s 98 of the Evidence Act 1995.

Background

1. The following account is drawn from statements presented to the primary judge, and to this Court. Nothing in it is intended to represent a finding of fact: it is an account of the case the Crown proposes to make at trial.

1. From 1982 to 1999, the respondent Wayne Alfred Duckworth (to whom I will refer by his surname) served as a member of the NSW Police Service. From 9 May 2006, he was employed by, and licensee of, the Nimbin Hotel. On 26 June 2006 he reported to local police that he had, at 7.15am on that day, at the hotel, been robbed at gunpoint of the proceeds of the previous day's trading. He made a statement in which he gave a detailed account of the alleged robbery. (The balance of this paragraph is an account of the content of that statement.) Duckworth described the offender as of Maori appearance, and large. He said that the offender had ordered him to face the wall, with a threat to shoot him if he did not. When he did this he pointed a silver coloured gun at Duckworth. While Duckworth faced the wall as directed, he heard the offender take money from the cash register and place it in a bag, which he then ordered Duckworth to take. He ordered Duckworth to walk down the stairs, and to his own (Duckworth's) car, and to drive the car according to the robber's directions. This was north towards Murwillumbah. Eventually, he told Duckworth to pull over to a clearing on the side of the road, and to alight from the vehicle. Throughout the drive he was pointing the gun at Duckworth. He ordered Duckworth to walk down a steep embankment, again threatening to shoot him. The offender then drove off in Duckworth's car. Duckworth vomited, and then walked to the side of the road, where he flagged down a passing vehicle, driven by Mr John Faust, an employee of Country Energy. Duckworth told Mr Faust that he had been robbed, had been driven to that location, and that he thought he was going to die. Mr Faust telephoned police, who attended shortly thereafter, and drove Duckworth to the Nimbin police station. Duckworth estimated that approximately $40,000 was taken from the hotel.

1. At about 9.30am that day, Duckworth's car was observed in a laneway in Murwillumbah.

1. It is the DPP's case that the account of the robbery given by Duckworth was a fabrication, and that Duckworth, in collaboration with Brett Terence Gale ("Gale") (also a former member of the NSW Police Service) had himself stolen the money, that Gale had driven Duckworth in Duckworth's care to the Murwillumbah location, and had then driven off in Duckworth's car, leaving Duckworth to present himself to a passing motorist (as it happened, Mr Faust), as the victim of an offence.

1. The case against Duckworth and Gale is largely circumstantial. There is evidence of an association between the two men prior to 26 June 2006. There is evidence of a number of mobile telephone calls made between Duckworth and Gale on and around 26 June. The evidence shows that both telephones were in the Murwillumbah area when the calls were made. There is evidence that both Duckworth and Gale were in financial difficulties and that Duckworth's expenditure exceeded his apparent income. There is evidence from other employees at the Nimbin Hotel that they did not observe anything untoward on the morning Duckworth reported the offence and in particular did not observe any intruder. There is evidence that a security camera at the hotel did not record anything consistent with the offence as described by Duckworth. There is evidence that Gale did not return to his employment after 26 June.

1. The only direct evidence is that of a prison informer, known as a numbered registered source. (The prison informer gave evidence under his own name at the committal proceedings, but I consider it prudent not further to publish his name.) His evidence was that (in circumstances to which I will shortly come) he had met both Duckworth and Gale whilst an inmate in a Queensland prison, and that both had, independently, described the Nimbin offence to him, admitting their own involvement. The informer's statement and evidence contained a good deal of detail that can be corroborated. One example is his evidence that Duckworth told him that, out of the proceeds of the theft, he had purchased a red Commodore utility, of "'95, '96, '97" vintage. He said that he had purchased the vehicle for his stepson, paying about $7,800. The detail given by the informer was largely consistent with statements from a Mr and Mrs Shelley. Mrs Shelley operated a car parts business. For the purposes of the business she and her husband had a 1996 Commodore utility (which was white with grey interior). In July 2006 they decided to sell the vehicle, and placed it on eBay, with an asking price of $7,500. It was purchased by a man who called himself "Wayne", and who later gave Duckworth's full name for the purpose of completing the necessary paperwork. The purchaser, "Wayne", told Mrs Shelley to transfer the registration of the vehicle to "Fiona" who was present. "Fiona" is the name of Duckworth's wife.

1. Gale was interviewed in Queensland by NSW Police on 9 December 2006, and that interview was electronically recorded. He denied any involvement in the Nimbin offence. He agreed that he knew Duckworth as an acquaintance. He saw him, very occasionally, at a Coolangatta hotel at which Gale was employed. He said he had never been to Nimbin and did not know where it was. He said that he had been to Murwillumbah, with a man who he named, who was the owner of a hotel at Coolangatta. He had not been to Murwillumbah in the company of Duckworth. As of June 2006, he did not see Duckworth; previously he had seen him by chance with other friends. They spoke to one another on occasion by telephone. He could not explain the telephone contact between them shortly before and on 26 June.

1. Significantly, Gale said that Duckworth did not tell him about having been robbed, although the subject might have come up in group conversation. (I say significantly because the evidence shows a considerable number of telephone contacts between the two on and about 26 June, when, it might be expected, Duckworth would have mentioned what he said were his experiences of that day.)

1. Duckworth was interviewed by police at his home on 14 November 2006, and the interview electronically recorded (apparently by audio). He then gave a detailed account consistent with that he had earlier given, of what he said were the events of 26 June of that year. Inter alia, he said that he had not made or received any telephone calls while on his way to work or while he was at work on that day.

The coincidence evidence

1. The coincidence evidence that the DPP seeks to adduce under s 98 of the Evidence Act concerns an event that took place in Queensland on 5 November 2006. An armed robbery was committed at a hotel called the Greenbank Park Ridge Tavern. At 1.25am on that day, two men, wearing balaclavas, dark clothes and plastic jackets entered the premises, one armed with an iron bar, one with a bicycle pump. Two female staff were present, as was the manager, Paul Carr. The intruders ordered the women to drop their handbags, and demanded to be shown where the office was. One of the women led the men towards the office, which Carr unlocked. One of the intruders shouted at one of the women and Carr to get on the ground. An object was forcibly pushed into the head of one of the women. The hands of the other woman were taped together. The intruders emptied the safe, taking about $63,000. As they left, one of the men threatened to kill the women if they rang anybody within ten minutes.

1. The two intruders were Duckworth and Gale. The entire event was carried out by arrangement with Carr, who had, by a pre-arranged signal, let them know when to enter. The proceeds of the robbery were to be shared between the three men.

1. Duckworth and Gale were arrested in Queensland and charged. Each was interviewed (Gale on 8 November and Duckworth on 9 November), and the interview recorded. Each entered a plea of guilty to the charge, and each was, on 11 April 2007, sentenced to a term of imprisonment. A "Schedule of Property Offences" (apparently the equivalent of what is commonly, in this jurisdiction, called a statement of agreed facts) was before the sentencing court, and was before the District Court and this Court. (It may be observed that this event demonstrates quite clearly the falsity of much of what was said by Gale in the recorded interview on 9 December, in which he professed only a slight acquaintance with Duckworth.)

1. It was while serving the terms of imprisonment imposed in respect of this offence that Duckworth and Gale came into contact with the prison informer to whom I have referred above.

1. On 21 July 2009, the Office of the DPP served on the legal representatives of each respondent a notice under s 97 of the Evidence Act, stating its intention to adduce tendency evidence. The notices contained the following:

"2. The Prosecution will seek to adduce evidence of criminal association between [the respondents] in the commission of an offence of armed robbery in company with personal violence to which they both pleaded guilty in the Brisbane District Court on 3 April 2007."

1. The substance of the tendency evidence proposed to be adduced was identified as the "Property Offences Schedule" which contained the facts alleged against the respondents in respect of the Park Ridge Tavern offence.

1. On 28 February 2011, the Office of the DPP served on the legal representatives of each respondent a notice under s 98 of the Evidence Act, stating its intention of adducing coincidence evidence. Each notice contained the following:

"2. The two or more events which are the subject of the proposed evidence are: (1) The theft of money from the Nimbin Hotel on 26 June 2006, and (2) The theft of money from the Park Ridge Tavern on 5 November 2006.

3. The evidence is to be tendered to prove that [each respondent] did a particular act, namely he participated in the staged robbery of the Nimbin Hotel on 26 June 2006 and the staged robbery of the Park Ridge Tavern on 5 November 2006."

In each notice the substance of the evidence proposed to be tendered as coincidence evidence was identified as the transcript of the proceedings before the District Court at Brisbane, and the transcripts of the records of interview of 8 and 9 November 2006. That is, the DPP proposed to use the evidence of each respondent's participation in the Park Ridge Tavern offence as coincidence evidence to prove his involvement in the theft of money from the Nimbin Hotel in June.

The District Court proceedings

1. On 4 April 2011, the respondents were arraigned in the District Court at Lismore on an indictment alleging (against Duckworth) larceny as a clerk or servant, and (against Gale) larceny (of the Nimbin Hotel). Each entered a plea of not guilty. The purpose of the arraignment on that day was to confer jurisdiction on the court to deal with the question of admissibility of the evidence sought to be tendered by the DPP as coincidence evidence (see Criminal Procedure Act 1986, s 130). Reliance on tendency evidence under s 97 of the Evidence Act was abandoned.

1. The trial judge was provided with a considerable volume of material, being, essentially, the case the DPP proposed to make. Each party provided considered and helpful written submissions. On the following day, 5 April, counsel addressed orally. On that day the trial judge delivered judgment, rejecting the evidence.

1. His Honour recounted the relevant facts and circumstances, and referred to two judgments of this Court: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 (concerning tendency evidence) and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 (concerning coincidence evidence). He quoted from s 101(2) of the Evidence Act (to which I will come), and gave as his reasons for rejecting the evidence, the following:

"Well the introduction of a conviction of robbery of licensed premises is incontestably prejudicial. There is then a balancing exercise to be done and in my view the principles to which I have already referred about assessing whether or not things are probative namely on one extreme they only indicate one thing, on the other extreme they do not indicate very much, in the middle people might disagree about them, are relevant to doing the balancing exercise required by subs (2) of 101. I do not take the view that the probative value of the Queensland evidence substantially outweighs the undoubted prejudicial effect it would have on the accused and it is for that reason and acknowledging that it is an issue in my view upon which minds may differ that I rule against the Crown's application."

It is against that ruling that the DPP now appeals.

1. A decision to reject evidence tendered as coincidence evidence under s 98 of the Evidence Act is reviewable on the principles stated in House v The King [1936] HCA 40; 55 CLR 499: see DAO v R [2011] NSWCCA 63.

Coincidence evidence

1. The admission of coincidence evidence in criminal cases is governed by two provisions of the Evidence Act, s 98 and s 101. Those sections are relevantly in the following terms:

"98 The coincidence rule

(1) Evidence that 2 or more events occurred 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 occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

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

(2) ...

101 Further restrictions on ... coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to section ... 98.

(2) ... coincidence evidence about a defendant, that is adduced 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.

(3) ...

(4) ..."

1. By s 100(2), a court may dispense with the notice requirements of s 98(1)(b) by directing that, notwithstanding the failure of the party seeking to adduce the evidence to give notice, the coincidence rule is not to apply.

1. At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:

• two or more events occurred; and
• there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
• having regard to those similarities, it is improbable that the two events occurred coincidentally;
• therefore the person in question did a particular act or had a particular state of mind.

1. What is important to recognise, in my opinion, is that this process of reasoning and the drawing of the inferences (that the person did the act or had the state of mind) is for the tribunal of fact: see DSJ v R; NS v R [2012] NSWCCA 9. Part of that process involves findings of fact. Did the two (or more) events occur? Were there relevant similarities? Where the party tendering the evidence relies upon a number of asserted similarities, the tribunal of fact must identify which, if any, of those similarities have been established. Before asking itself the penultimate question - is it improbable that the two events occurred coincidentally? - it must discard any asserted similarities not established.

1. The task for the judge in determining the admissibility of evidence that would permit the jury to undertake that reasoning process, and draw the ultimate inference, is what is presently in issue. Provided the evidence is such that would permit the jury, acting reasonably, to reach that conclusion or draw that inference, the evidence could be held to have significant probative value. It is a question of the capacity of the evidence to have that effect: DSJ at [8], [11], [55]. Subject to s 101, the evidence would, following that reasoning, be admissible.

1. Before the evidence can be admitted, however, two conditions must be met. The judge must:

(i) be satisfied that reasonable notice has been given; and

(ii) form the opinion that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party tendering the evidence, will have significant probative value.

1. Section 98 is framed in the negative. It is, therefore, more accurate to say that it is a provision that prohibits the admission of evidence from which such an inference may be drawn unless the stated conditions are met.

1. The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:

• that there is evidence capable of establishing the occurrence of two or more events; and
• that there is evidence capable of establishing similarities in the two or more events; or
• that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
• that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.

1. In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, 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.

1. It is quite clear that nothing approaching this process was undertaken by the trial judge. In effect, the respondents concede that error has been demonstrated in the House v The King sense, in the manner in which his Honour approached the task. That conclusion is correctly made.

1. By s 5F(5) of the Criminal Appeal Act, this Court may, if it vacates the judgment, order, decision or ruling the subject of the appeal, make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling against which the appeal is brought. Error having been established, it will be necessary that this Court consider the issue afresh. One complication that has affected this appeal is that, from the beginning, it has been assumed that the same result will ensue in relation to each accused. That is not necessarily so. While, as things presently stand, the accused will be tried jointly, the case in respect of each must be examined separately.

1. Applying the process set out above:

(i) the "particular act" the DPP seeks to prove against Gale is that, on 26 June 2006, he stole money from the Nimbin Hotel. On the case as the Crown seeks to prove that act, that involves proving that he:

• was present at the Nimbin Hotel in the morning of 26 June 2006;
• in collusion with Duckworth, stole money from the Nimbin Hotel;
• travelled with Duckworth in Duckworth's car to Murwillumbah;
• left Duckworth on the side of the road, drove and then abandoned Duckworth's car;

the "particular act" the DPP seeks to prove against Duckworth is that, on 26 June 2006, he stole money from the Nimbin Hotel. On the case as the Crown seeks to prove that act, that involves proving that:

• as manager/licensee of the Nimbin Hotel, he connived with Gale to create the appearance of a robbery;
• that Gale was present at the Nimbin Hotel in the morning of 26 June 2006;
• he drove his car, with Gale, to Murwillumbah;
• he falsely pretended to Mr Faust that he had been robbed at gunpoint, abducted, and abandoned on the roadside;
• he made a false report of robbery to police;

(ii) the "two or more events" the similarity of which the DPP contends proves that the respondents did those acts are the robbery at the Park Ridge Tavern ("Park Ridge Tavern event") and the theft of money from the Nimbin Hotel ("the Nimbin Hotel event"). (There is no issue that money was stolen from the Nimbin Hotel. The questions concern the circumstances in which it was stolen, and, specifically, whether Gale was involved and whether Duckworth's undisputed involvement was criminal or innocent. The note to s 98(1) expressly confirms that one of the events in question may be an event the occurrence of which is a fact in issue in the proceeding);

(iii) I will discuss below the asserted similarities in the two events and the circumstances in which they occurred. That is one of two central issues in the appeal;

(iv) no question of notice arises. It is not in issue that "reasonable notice" was given;

(v) there is little doubt, in my opinion, that evidence that, just five months after the Nimbin Hotel event, each respondent was involved in the Park Ridge Tavern event, which was a robbery committed by arrangement with the manager of that Tavern, would have significant probative value. (That is without any consideration of similarities other than the nature of the events and criminal involvement of the two respondents);

(vi) accordingly, the final, and central, question is whether the probative value of the evidence "substantially outweighs" its obvious prejudicial effect (s 101(2)). It is to be understood that the "prejudicial effect" of a particular item of evidence is the risk that a jury might, in some way, misuse it: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [92]; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [72]-[73]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116]; R v Ford [2009] NSWCCA 306 at [56]; 201 A Crim R 451.

1. Critical to the DPP's claim to adduce the coincidence evidence is the analysis of the similarities in the two events, or in the circumstances in which the two events occurred, that are asserted. In written submissions counsel for the DPP propounded these similarities as:

"53. The similarities between the Park Ridge Tavern robbery and the Nimbin Hotel robbery are:

• the presence of Duckworth at both robberies;
• the presence of Gale at both robberies;
• that both robberies involved an 'insider' who was employed at the premises and facilitated the robbery. At the Nimbin Hotel it was Duckworth, at the Park Ridge Tavern it was Paul Carr;
• both robberies involved ex-police officers;
• both were robberies of licensed premises;
• both robberies occurred when the premises were closed;
• substantial amounts of money were stolen in both robberies - $36,781 from the Nimbin Hotel and approximately $60,000 from the Park Ridge Tavern;
• both robberies involved multiple participants, in the case of the Nimbin Hotel, two offenders, in the case of the Park Ridge Tavern, three offenders."

1. I note that the use of the term "robbery" in connection with the Nimbin event is inconsistent with what the DPP actually contends, which is that that was not a "robbery" at all, but rather a theft by Duckworth, with the assistance of Gale, of money, falsely represented as a robbery by an intruder.

1. Some of the asserted similarities expose a serious logical fallacy in the argument. The presence of Gale at the Nimbin Hotel, the (criminal) involvement of an "insider" at the Nimbin Hotel, the involvement of ex-police officers (ie Duckworth and Gale) in each event, and involvement of multiple offenders at the Nimbin Hotel event are all, far from being established similarities (or similarities capable of being established), the very facts that the DPP seeks to prove by the coincidence evidence. This involves, in my opinion, a misunderstanding of the note to s 98. The note permits an "event" to be the subject of coincidence evidence, even where its occurrence is a fact in issue in the proceeding. The Crown cannot use the (asserted) presence of Gale at both events to prove that Gale was present at the Nimbin event. The argument is a classic instance of "begging the question" (properly so called). It assumes the very facts that the DPP seeks to prove. In my opinion, similarities for the purposes of s 98 must be capable of proof by means other than the "facts" sought to be established.

1. Put another way: included in the facts that the DPP seeks to prove by the coincidence evidence (and of which it does not have other evidence other than that of the prison informer) are:

• the presence of Gale at the Nimbin event (as at the Park Ridge Tavern event);
• that the Nimbin event, like the Park Ridge Tavern event, involved "an insider" who was at the hotel and who facilitated the "robbery";
• that the Nimbin event, like the Park Ridge Tavern event, involved multiple participants;
• the criminal involvement of Duckworth in the Nimbin event as perpetrator rather than victim.

Those "facts" (more accurately, assertions) cannot also be proffered as similarities used to prove that they are facts. They must therefore be excluded from the DPP's catalogue.

1. That "substantial amounts of money were stolen" in the two events is, in the circumstances, irrelevant. The amount of money taken can only be a consequence of what the previous day's trade had yielded. No inference of the kind sought to be drawn could validly be drawn.

1. What is left of the DPP's list of "similarities" is:

• the presence of Duckworth at both events;
• that both events involved licensed premises;
• that both events occurred when the premises were closed.

1. In my opinion, for circumstances such as, for example, the presence of Gale at the Nimbin event, to be presented to a jury as a "similarity", it is necessary that the DPP adduce evidence independent of the coincidence evidence of that fact. So far as I can see in the material provided to this Court, the only evidence the DPP has to establish that "fact" is the evidence of the prison informer. By saying that, I do not mean to denigrate that evidence. Its probative value will be a matter for the jury.

1. The evidence of telephone calls between Duckworth and Gale on 26 June 2006 does not go anywhere near placing Gale at the Nimbin Hotel; it is evidence from which a jury might infer that he was at Murwillumbah at the same time as Duckworth, and that he was, at the critical time, in communication with Duckworth. It is, I accept, potentially a significant circumstance in the circumstantial case against both respondents.

1. Under the heading "A Unique Factor", the DPP went on to make this submission:

"54. The presence of Duckworth and Gale at both the robberies gives the two events a specific similarity which is highly probative in the context of coincidence reasoning. As with the poisoning cases [reference omitted] it is inherently improbable that Duckworth and Gale, who have admitted staging a robbery of one licensed premises, would be present, innocently involved, in another robbery of licensed premises in similar circumstances."

This, again, "begs the question". It assumes one of the very facts sought to be proved - that Gale was present at the Nimbin Hotel at the time of the Nimbin event.

1. That then raises the question: are the three (or four, if the evidence of the prison informer is accepted as establishing Gale's presence at the Nimbin event) remaining similarities, of which there is evidence independent of the coincidence evidence, capable of establishing the improbability that the Nimbin event and the Park Ridge Tavern event occurred coincidentally (ie without the criminal involvement of Duckworth and Gale at the Nimbin event). (In fact, the question must be asked and answered separately in respect of each.) If the answer is affirmative, I would conclude that the evidence (the proposed coincidence evidence) would have significant probative value. I have framed the question as I have ("capable of establishing") because, in my opinion, as I have said above, it is for the jury to assess whether the facts asserted to be similarities are, indeed, "facts"; if so, whether they do indeed establish the improbability of the coincidental occurrence of the events in question; and, finally, whether they do indeed prove the facts sought to be proved - that Duckworth and Gale were both present at the Nimbin Hotel on 26 June and stole the proceeds of the previous day's trading.

1. This question must be answered in the light of the other circumstantial evidence to which I have referred above: importantly, that the two respondents had repeated telephone contact on the day of the Nimbin event, that the mobile telephone evidence suggests that both were present in Murwillumbah at a time relevant to when Duckworth claimed to have been abandoned and his car stolen; and Duckworth's later denial of having any telephone calls on his way to work on 26 June. In respect of this last proposition, it would be necessary to bear in mind that he was only questioned about that circumstance in November; it was a question that did not arise when he made his initial statement in June 2006. It might not be surprising if he did not recall the telephone calls (assuming that the Nimbin event occurred as he described it, and not as the DPP now contends). Also relevant in this assessment is the evidence of the prison informer. While there are always difficulties in evidence given by such a witness, and a jury would be required to be cautioned in accordance with s 165 of the Evidence Act, the reliability or potential weight of the evidence is not a relevant factor in the determination to admit or reject the evidence: see Shamouil.

1. The three circumstances of similarity are, in this case, effectively common ground. They are the presence of Duckworth at both events, that each offence was committed on licensed premises, and that, in each case, the licensed premises were closed at the time. If the jury were to accept the evidence of the prison informer, that Gale had admitted to being present, that similarity could be added to the bundle of similarities from which the inference could, if the jury saw fit, be drawn against Duckworth.

1. It may not always be the case that the similarities asserted are undisputed. A party tendering coincidence evidence may wish to rely on evidence of asserted similarity that is in contest. In that case, the jury would have to be directed that they could take into account those "similarities" that they found to be established. This exercise is analogous with the exercise undertaken in a case in which reliance is placed upon circumstantial evidence.

1. In this case, if the coincidence evidence were to be admitted, the jury would be invited to reason as follows:

• Duckworth was present when the Nimbin event occurred;
• the Nimbin event involved licensed premises;
• the Nimbin event occurred at a time when the licensed premises were closed;
• Duckworth was involved in the Park Ridge Tavern robbery;
• Gale was involved in the Park Ridge Tavern robbery;
• the Park Ridge Tavern event was a robbery of licensed premises;
• the Park Ridge Tavern robbery was committed when the premises were closed;
• the Park Ridge Tavern robbery was committed with the connivance of the manager;
• taken together, and in conjunction with the circumstantial evidence (especially the evidence of telephone calls between Duckworth and Gale on the day of the Nimbin event) the similarities render it improbable that the Nimbin event occurred coincidentally to the Park Ridge Tavern event; rather, it is probable that the common elements provide the basis for an inference that both Duckworth and Gale were criminally involved in the Nimbin event.

1. In those circumstances, it is my opinion that the evidence is capable of having significant probative value (s 98). Section 101 raises a more difficult issue. Plainly, the coincidence evidence has substantial probative value. But it is also highly prejudicial. I am unable to conclude that the probative value substantially outweighs the potential prejudice.

1. I would therefore dismiss the Crown appeal. The order I propose is:

The Crown appeal is dismissed.

1. FULLERTON J: I agree with Simpson J.

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Decision last updated: 17 August 2012