Court of Criminal Appeal
New South Wales
Case Title: R v MR Medium Neutral Citation: [2013] NSWCCA 236 Hearing Date(s): 19 September 2013 Decision Date: 18 October 2013 Before: Hoeben CJ at CL at [1]
Schmidt J at [2]
Beech-Jones J at [20]Decision: 1. The ruling of Quirk DCJ on 05.03.13 that the material set out in the coincidence notice dated 26.02.13 as amended is not admissible for coincidence purposes be set aside.
2. The material set out in the coincidence notice dated 26.02.13 as amended be admitted for coincidence purposes.
3. The order made by Quirk DCJ on 05.03.13 severing the counts on the indictment be set aside.
4. The notice of motion filed 27.07.12 by the respondent in proceedings number 2011/163025 be dismissed.
Catchwords: CRIMINAL LAW - Crown appeal against ruling excluding coincidence evidence - Crown appeal against interlocutory judgment severing counts on indictment - whether ruling eliminated or substantially weakened the prosecution case - Criminal Appeal Act 1912, 2 5F.
EVIDENCE - admissibility - coincidence evidence - test - relevance - significant probative value - Evidence Act 1995, ss 55 and 98.Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Amendment Act 2007Cases Cited: - Dao v R [2011] NSWCCA 63; 278 ALR 765
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- House v R [1936] HCA 40; 55 CLR 499
- KRM v R [2001] HCA 11; 206 CLR 221
- Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
- R v Ceissman [2010] NSWCCA 50
- R v Oliver (1984) 57 ALR 543
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613
- Sutton v R [1984] HCA 5; 152 CLR 528Texts Cited: - ALRC Discussion Paper 69: Review of the Uniform Evidence Act
- ALRC Report 102: Uniform Evidence Law ReportCategory: Principal judgment Parties: Crown (Appellant)
"MR" (Respondent)Representation - Counsel: Counsel:
Ms N. Noman SC (Appellant)
P. Skinner (Respondent)- Solicitors: Solicitors:
Deputy Director of Public Prosecutions (Appellant)
Meridian Legal (Respondent)File Number(s): 2011/163025 Decision Under Appeal - Before: Quirk DCJ - Date of Decision: 05 March 2013 Publication Restriction: NIL, but note Respondent due for trial on 28 October 2013.
JUDGMENT
HOEBEN CJ at CL: I agree with Beech-Jones J and the additional observations of Schmidt J.
SCHMIDT J: I have had the advantage of reading Beech-Jones J's draft judgment and adopt his Honour's explanation of the evidence and the parties' cases below and on appeal.
For my part, I joined in the orders made at the hearing in relation to the evidentiary ruling, because I took the view that her Honour had erred in the conclusions which she reached as to the…
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- R v MR [2013] NSWCCA 236
- Case
- [2013] NSWCCA 236
- Decision Date
CaseChat Overview and Summary
The case of R v MR involves an appeal by the Crown against a ruling that excluded coincidence evidence and severed counts on the indictment. The primary judge's decision was challenged on the basis that it eliminated or substantially weakened the prosecution's case, pursuant to the Criminal Appeal Act 1912. The central legal issues revolved around the admissibility of coincidence evidence under the Evidence Act 1995, specifically sections 55, 95, 98, and 101, and whether the ruling on the admissibility of this evidence substantially weakened the prosecution's case.
The court examined whether the evidence of coincidence, which was excluded, had significant probative value as required by section 98(1) of the Evidence Act. The court found that the primary judge was incorrect in her assessment that the evidence did not have significant probative value. Given the strong evidence connecting MR to counts 4 and 5, and the relatively weaker evidence connecting him to counts 1, 2, and 3, the coincidence evidence was crucial in bolstering the prosecution's case for the latter counts. The court held that the exclusion of this evidence substantially weakened the prosecution's case on counts 1, 2, and 3. The court also found that the severing of counts on the indictment was an interlocutory order that could be appealed under section 5F(2) of the Criminal Appeal Act, leading to a consideration of whether the interlocutory judgment or order was substantively significant.
The court concluded that the primary judge's rulings on the admissibility of coincidence evidence and the severing of counts on the indictment were erroneous and that these decisions substantially weakened the prosecution's case. Consequently, the appeal was allowed, and the case was remitted to the trial court for further proceedings. The court ordered that the coincidence evidence be admitted and that the counts on the indictment be rejoined for trial.
The court examined whether the evidence of coincidence, which was excluded, had significant probative value as required by section 98(1) of the Evidence Act. The court found that the primary judge was incorrect in her assessment that the evidence did not have significant probative value. Given the strong evidence connecting MR to counts 4 and 5, and the relatively weaker evidence connecting him to counts 1, 2, and 3, the coincidence evidence was crucial in bolstering the prosecution's case for the latter counts. The court held that the exclusion of this evidence substantially weakened the prosecution's case on counts 1, 2, and 3. The court also found that the severing of counts on the indictment was an interlocutory order that could be appealed under section 5F(2) of the Criminal Appeal Act, leading to a consideration of whether the interlocutory judgment or order was substantively significant.
The court concluded that the primary judge's rulings on the admissibility of coincidence evidence and the severing of counts on the indictment were erroneous and that these decisions substantially weakened the prosecution's case. Consequently, the appeal was allowed, and the case was remitted to the trial court for further proceedings. The court ordered that the coincidence evidence be admitted and that the counts on the indictment be rejoined for trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Sections 55, 95, 98 and 101 of the Evidence Act provide:"55 Relevant evidence(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness, or(b) the admissibility of other evidence, or(c) a failure to adduce evidence....95 Use of evidence for other purposes(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose....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.(2) Subsection (1) (a) does not apply if:(a) the evidence is adduced in accordance with any directions made by the court under section 100, or(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party....101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.(2) Tendency evidence about a defendant, or 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) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." The above form of s 98 was introduced into the Evidence Act with effect from 1 January 2009 by the operation of the Evidence Amendment Act 2007 (Act No 46 of 2007; s 3 and schedule 1). It replaced the form of s 98 that was considered in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504, which provided:"98 The Coincidence Rule(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or(b) the court thinks that the evidence would not, 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.(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:(a) they are substantially and relevantly similar, and(b) the circumstances in which they occurred are substantially similar.(3) Subsection 1(a) does not apply if:..."
Decision
Reasons for decision
HOEBEN CJ
As stated, the Crown's appeal against the evidentiary ruling was brought pursuant to s 5F(3A) of the Criminal Appeal Act and the appeal against the severing of the counts on the indictment was brought under s 5F(2). Section 5F states:"5F Appeal against interlocutory judgment or order...(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies....(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." Thus a threshold question arose in relation to the appeal under s 5F(3A), namely whether the relevant ruling eliminated or substantially weakened the "prosecution's case". In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [40] Spigelman CJ stated that the Court should address s 5F(3A) "on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury" and that no investigation of the credibility or reliability of the evidence in question should be undertaken. Shamouil involved a successful Crown appeal against the exclusion under s 137 of the Evidence Act of an out of court photoboard identification of the accused. Thus in most appeals under s 5F(3A) the threshold question is addressed by considering the effect of the rejected evidence on the assumption that it is before the jury and without regard to questions of credibility or reliability. However one feature of s 98(1) is that it is an exclusionary rule that prevents evidence being before a jury for a particular purpose unless it has significant probative value. If the Court was to conclude that the primary judge was correct to find that s 98(1) was not satisfied in relation to the evidence the subject of this appeal because, irrespective of matters of weight or reliability, it does not have significant probative value, then at least in this case it would necessarily follow that a Crown case that was denied that evidence would not be substantially weakened. However it is not necessary to consider this further because I consider that the primary judge was in error and that her Honour was bound to find that the evidence had significant probative value. Otherwise it is apparent from the recitation of the Crown case above that, if the evidence in respect of counts 4 and 5 is not available in respect of each of counts 1, 2 or 3, then the Crown case on each of those counts is substantially weakened. The evidence directly connecting MR to each of those latter counts is not particular strong. With count 3, ie the third armed robbery, it only consists of some similar clothing. However, the evidence directly connecting MR to counts 4 and 5 is very strong and almost overwhelming. His fingerprints were found on the car stolen in the carjacking and used in the fourth armed robbery. The car was eventually parked at premises he resided in along with K. His mobile phone was in the vicinity of the McDonald's restaurant in Croydon at the time of the robbery. There is said to be a picture of him exiting the car during the police pursuit. If that evidence is available to be used with counts 1, 2 and 3 via the use of the type of reasoning referred to in s 98(1), as explained at [40], then the prosecution case on each of counts 1, 2 and 3 is considerably strengthened. However the reverse conclusion does not apply with counts 4 and 5.
Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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