R v Hall

[2019] ACTSC 350

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hall

Citation:

[2019] ACTSC 350

Hearing Date:

9 December 2019

DecisionDate:

13 December 2019

Before:

Mossop J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application to adduce coincidence evidence – series of crimes involving similarities of dress and motor vehicles – whether events are of significant probative value – turns on own facts

Legislation Cited:

Evidence Act 2011 (ACT), ss 98, 101, 192A

Cases Cited:

DSJv The Queen [2012] NSWCCA 9; 84 NSWLR 758

IMM v The Queen [2016] HCA 14; 257 CLR 300

R v MR [2013] NSWCCA 236

Parties:

The Queen (Crown)

Marley Hall (Accused)

Representation:

Counsel

R Khazma (Crown)

R Davies (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 167 of 2019

MOSSOP J:

Introduction

1. Marley Hall has been indicted on 12 counts.  They are:

(a)count 1: attempted aggravated burglary of premises in Bonner (BWS liquor store) on 30 December 2018;

(b)count 2: dishonestly driving a motor vehicle on 30 December 2018;

(c)count 3: dishonestly riding in a motor vehicle on 30 December 2018;

(d)count 4: aggravated burglary of premises in Chisholm (Liquorland Chisholm) on 30 December 2018;

(e)count 5: theft of property from the Liquorland Chisholm premises on 30 December 2018;

(f)count 6: aggravated burglary of a property in Yarralumla (Farmer’s Daughter Café) on 30 December 2018;

(g)count 7: theft of property from the Yarralumla Farmer’s Daughter Café on 30 December 2018;

(h)count 8: dishonestly taking a motor vehicle (Farrer) on 30 December 2018;

(i)count 9: attempted aggravated robbery (O’Malley) on 30 December 2018;

(j)count 10: an alternative count 9, attempt to dishonestly take a motor vehicle on 30 December 2018;

(k)count 11: further to count 10 and in the alternative to count 9, assault occasioning actual bodily harm on 30 December 2018; and

(l)count 12: dishonestly driving a motor vehicle on 4 January 2019.

1. The proceedings are listed for a trial by judge alone commencing on 16 March 2020. The Crown has sought a ruling under s 192A of the Evidence Act 2011 (ACT) that the Crown be permitted to adduce coincidence evidence in accordance with its Amended Notice of Intention to Adduce Coincidence Evidence (Coincidence Notice) dated 20 November 2019.

Coincidence notice

1. The Coincidence Notice identifies six events.  Each of those events arises out of one or more of the charges on the indictment.  It is therefore a case in which the Crown is not seeking to expand the evidence that is led at the trial.  Rather, it is seeking to bolster its case on identification of the accused by permitting the evidence that is led to be used for coincidence purposes. Use for coincidence purposes would ensure (if there was any doubt about it) that the evidence in relation to each charge would be cross‑admissible.

1. The events on the Coincidence Notice are as follows:

(a)event 1 (counts 1 and 2 – BWS Bonner);

(b)event 2 (counts 4 and 5 – Liquorland Chisholm);

(c)event 3 (counts 6 and 7 – Farmer’s Daughter Cafe);

(d)event 4 (counts 9 and 10 – attempted aggravated robbery, O’Malley);

(e)event 5 (count 8 – take motor vehicle, Farrer); and

(f)event 6 (count 12 – drive motor vehicle).

1. The Crown did not ultimately press its coincidence application in relation to event 6 which occurred several days after the other offences.  The accused did not ultimately oppose the application insofar as it relates to events 1, 2, and 3, accepting that similarities between these events gave their use for coincidence purposes significant probative value.

1. That leaves events 4 and 5 in contest.  In order to rule on the issues that arise it is necessary to have regard to the evidence relevant to events 1, 2 and 3.

Issues

1. In order for coincidence evidence to be admissible, the Evidence Act requires that the following matters must be established:

(a)the party seeking to present the evidence gave reasonable notice in writing: s 98(1)(a);

(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: s 98(1)(b); and

(c)the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant: s 101(2).

1. There is no issue about the giving of reasonable notice in writing ((a) above).  Counsel for the accused was unable to point to any prejudicial effect resulting from the use of the evidence of the events as coincidence evidence ((c) above).  In those circumstances the determinative issue is whether or not the court thinks that the evidence, either by itself or having regard to other evidence to be presented, will have significant probative value ((b) above).

The coincidence rule

1. The coincidence rule is a purposive rule.  It precludes the admission of evidence to prove an act or state of mind if the reasoning process is to be that “having regard to any similarities in the events or circumstances in which they happened … it is improbable that the events happened coincidentally”.  In a case like this, where all of the evidence is to be led in any event, the coincidence rule is a constraint upon the submissions that can be made, rather than the evidence that can be led. It may also be significant when determining any issues relating to cross-admissibility of evidence.

1. Central to the operation of the coincidence rule are the similarities between the events that take place or circumstances in which they happen. In a case where the identity of the perpetrator is in issue, s 98 captures the chain of reasoning that says: because these events have such similarities it is unlikely that they involved different perpetrators. For the proof of a charge it would then be necessary to establish that the perpetrator of one of the events was the accused, in order to provide an anchor upon which the coincidence reasoning can operate. If accepted, that reasoning would lead to the conclusion that the perpetrator was the same in all five events. It would still be necessary for the Crown to prove the identity of the perpetrator in relation to one or more of the events in order that coincidence reasoning then operate in relation to the balance of events.

1. A distinction must be drawn between coincidence evidence based on similarities which is within the scope of s 98 and other evidence which relies upon a coincidence of circumstances. Any circumstantial case will rely upon a different form of coincidence reasoning not based on similarities but instead based on the unlikelihood that a concatenation of not necessarily similar circumstances would not exist unless the accused was guilty of the offence in question: see R v MR [2013] NSWCCA 236 at [64].

Assessment of coincidence evidence in this case

1. The following table illustrates the similarities between events 1, 2, 3 4 and 5.  While it does not include all of the similarities identified by the Crown, it identifies those which are of significance for the purposes of assessing the probative value of coincidence reasoning in relation to events 4 and 5. Apart from the “other evidence” row, the entries are derived from CCTV video extracts forming part of the Crown case. The times recorded in the table below are approximate and included only to indicate the sequence of the events and their temporal relations in approximate terms.

Event 1 12:35am	Event 2 2:34am	Event 3 3:00am	Event 4 After 7:30am	Event 5 7:30am
White and black short-sleeved hooded jumper	ü	ü
Maroon coloured shorts with a white T symbol	ü	ü	ü	ü
Black shoes with white sole	ü	ü	ü	ü
With Accomplice 1 – black track suit pants with a white logo on the upper left leg, & white socks with white slides and white and black striped top	ü	ü	ü	(White and black striped top only visible)
Tomahawk/hatchet	ü	ü	ü	ü
Hyundai i30 – silver hatchback	ü	ü    (number-plate YKN82T visible)	ü	ü    (Number-plate YKN82T visible at Spanish club with Santa Fe)
Using stolen Santa Fe (roof container, bicycle rack, bicycle)	ü	ü
Other evidence	DNA of accused found on point of entry	Fingerprints of accused found on driver-side and different number-plates attached to vehicle

1. In my view it is clear that the similarities between events 1, 2 and 3 on the one hand and count 4 on the other are such that the use of event 4 for coincidence purposes would have significant probative value.  If the trial judge accepted that the accused was the person identified in event 1, 2 or 3 (most obviously event 3 because his DNA was found at the point of entry) then it would be a very remarkable coincidence if some other person who had the following unusual features:

(a)wearing maroon coloured shorts with a white T symbol;

(b)wearing black shoes with a white sole;

(c)carrying a tomahawk or hatchet; and

(d)using a Hyundai silver hatchback

was responsible for the robbery that occurred only four and half hours later (event 4).  If it was event 1 or 2 that was proven to involve the accused, then, in addition to the other similarities, would be the fact that the other offender was in the company of an accomplice wearing the same clothes as the accused’s accomplice in events 1 and 2.  While the assessment of significance is to some extent a matter of impression based on human experience, the aggregation of similarities identified in this case must mean that it is of significant probative value.  It is certainly of “significance or importance”: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [46]. It affects “to a significant degree” the rational assessment of the likelihood that the accused was the perpetrator in event 4: DSJv The Queen [2012] NSWCCA 9; 84 NSWLR 758 (DSJ) at [55].

1. Event 5 falls into a different category.  The video evidence is limited as the person that the Crown asserts is the accused is obscured from view by a hedge.  Similarly, the view of his accomplice is limited as she drives the car away.  Therefore, the similarities with event 4 are:

(a)the white and black short-sleeved hooded jumper worn by the perpetrator (as in event 4);

(b)an accomplice wearing a white and black striped top (similar to event 1, 2 and 4);

(c)the involvement of a Hyundai i30 (having the same number-plate as that identified in event 2 and being of a similar style to that identified in events 1 and 4); and

(d)the use of a white Santa Fe with a luggage container, bicycle rack and bicycle at the back (as involved in event 4). 

1. Given the limited views of the clothing worn by the perpetrator in event 5, most of the similarities are not directly associated with the identity of the perpetrator but instead relate to the cars being used. That limits the probative value of the coincidences. However, whether or not the evidence is of significant probative value must be assessed in light of the other evidence to be presented: s 98(1)(b).

1. That other evidence includes a number of different categories of evidence:

(a)The coincidence evidence being similarities between event 4 and events 1, 2 and 3 in relation to the identification of the perpetrator (maroon shorts, shoes, Tomahawk/hatchet). The link between these sets of events puts the similarities between events 4 and 5 in a context which increases the probative value of the similarities between those two events.

(b)The other circumstantial evidence which strongly suggests a link between the accused and events 3 and 5, namely his DNA (event 3) and fingerprints (event 5).

(c)The strong circumstantial fact linking events 4 and 5, being that event 4 took place shortly after event 5 in a nearby suburb (which could be characterised as a similarity and hence within the scope of s 98 or might simply be characterised as another piece of circumstantial evidence).

1. The significance of the probative value can be assessed by considering the alternative hypothesis: that the person in the white and black short sleeve hooded jumper, arriving in the silver hatchback with the same number-plate seen in event 2 and with an accomplice in a similar top to that seen in event 4 was in fact a different person. No particular alternative hypothesis was advanced by counsel for the accused. No hypothesis is apparent other than that there was a change in personnel between event 5 and event 4 which occurred shortly after. This bare possibility does not “rob the evidence of its otherwise cogent capacity to prove the Crown’s case”: DSJ at [78].

1. In light of the other evidence I consider that the use of event 5 for coincidence purposes will have significant probative value and hence is not inadmissible under s 98.

1. I have concluded that the two categories of contested coincidence evidence, namely that in event 4 and event 5, are both of significant probative value. As no unfair prejudice was identified for the purpose of s 101 I consider that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused.

1. Although the coincidence notice identifies the acts and states of mind in more complex terms, I consider that the substance of the Crown’s use of coincidence evidence is to prove that the same perpetrator was involved in each of events 1 to 5. If the Crown establishes that then it would be open to establish by other evidence (such as DNA, fingerprint or other circumstantial evidence) that the perpetrator in any of those events was the accused and thereby provide the basis for coincidence reasoning in relation to the balance of the charges.

1. The order of the Court is:

1. The court rules pursuant to s 192A of the Evidence Act 2011 (ACT) that the Crown is not prohibited by ss 98 or 101 of the Act from adducing the coincidence evidence identified as events 1, 2, 3, 4 and 5 in its Amended Notice of Intention to Adduce Coincidence Evidence dated 20 November 2019.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 13 December 2019