R v UD; R v TF
[2020] ACTSC 45
•28 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v UD; R v TF |
| Citation: | [2020] ACTSC 45 |
| Hearing Date: | 28 February 2020 |
| Decision Date: | 2 March 2020 |
| Before: | Elkaim J |
| Decision: | The Crown applications under ss 97 and 98 are refused. |
| Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or |
| exclude evidence – application to adduce tendency and coincidence evidence – co-accused – identity in issue – whether the evidence has significant probative value – whether the | |
| probative value of the evidence is outweighed by its potential prejudicial effect | |
| Legislation Cited: | Court Procedures Act 2004 (ACT) s 76 Evidence Act 2011 (ACT) ss 97, 98, 101 |
| Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 Page v The Queen [2015] VSCA 357 R v Ceissman [2010] NSWCCA 50 Selby v R [2017] NSWCCA 40 |
| Texts Cited: | Anthony Price, Bank Robbery for Beginners (Macmillan Australia, 2010) Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (27 June 2019) |
| Parties: | The Queen (Crown) |
| UD (Accused) TF (Accused) | |
| Representation: | Counsel |
| R Christensen (Crown) B Morrisroe (Accused) | |
| A Doig (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Darryl Perkins Solicitors (Accused) | |
| File Numbers: | SCC 282 of 2019; SCC 140 of 2018; SCC 283 of 2019 |
| ELKAIM J: |
1. The two accused (the accused) are facing trials relating to a number of aggravated robberies that took place at various locations across the Australian Capital Territory.
2. The individual trials have thus far been identified by a letter in the alphabet. The application which I am dealing with in this decision refers to Trial E. This upcoming trial will relate to six robberies, starting with a robbery at the Raiders Club in Weston on 14 May 2017 and ending with another robbery at the same club on 6 February 2018.
3. In addition to the above robberies the Crown, for purposes of Trial E, also relies on a robbery at the Huskisson RSL in New South Wales in 2010.
4. The Crown wishes to utilise tendency and coincidence evidence, pursuant to ss 97 and 98 of the Evidence Act 2011 (ACT) respectively, in pursuit of convictions of the accused. Although there have been no admissions as to any facts alleged by the Crown, it is apparent that the main issue which will confront the jury is the identification of the accused.
5. No issue is taken as to the notice requirements of the above sections.
6. In relation to both the tendency and coincidence evidence the Crown has listed a number of ingredients common to the New South Wales robbery and the six robberies which will be before the jury.
7. The accused object to the Crown’s application to utilise ss 97 and 98, primarily because
they say the probative value of the evidence will be significantly outweighed by the
prejudice to them.8. Before reaching the question of probative value and prejudice, however, the accused say that there are preliminary points to be decided, which if found in their favour, will
prevent the Crown’s application being heard at all.
9. Firstly, the accused have submitted that the Crown’s application has already been dealt
with by Burns J in a concise decision given on 13 August 2019 (following a hearing on
28 June 2019). His Honour said:HIS HONOUR: On 28 June this year I heard an application by the Crown to permit it to lead tendency and coincidence evidence at the trials of the accused. At that time I reserved my decision and indicated that I would try to give the matter some priority which may mean that the decision would come initially and the reasons would come later. Subsequently I have been absent on leave for a significant part of the period which has intervened such that I have not had an opportunity to consider the matter until last weekend.
Having now considered the matter and refreshed my memory of the submissions, I am
satisfied that the Crown’s application should be refused and I need go no further, I believe, at
the present time, than to simply say that I adopt the submissions that were made on behalf of
the respondents.10. The accused say that pursuant to s 76 of the Court Procedures Act 2004 (ACT), the decision of Burns J is binding upon me, as the trial judge.
11. Secondly, the accused have submitted that should I not favour their argument derived
from s 76, then I should nevertheless stay the Crown’s application because it amounts
to an abuse of process.
12. Although my preliminary view, derived from s 76(3), is that the Crown is not restricted by the decision of Burns J, I have decided not to reach any conclusion on this point, nor on the issue of a stay, because I am of the firm view that the tendency and coincidence applications should fail.
The Crown submitted that “[t]he existence of this evidence (referring to the tendency and
coincidence evidence) will directly affect the jury’s assessment of the probability and likelihood that it was the same two offenders who committed each of the charged acts”
(Crown written submissions at [26]).
14. Based on the just quoted submission it is apparent, and understandable, that the Crown wishes to establish links between each of the subject robberies to assist in proving its case that the culprits were the accused.
15. Sections 97 and 98 are both subject to s 101. The latter section is where the accused’s primary argument arises. They say that: “The probative value is low and the prejudicial impact is high” (accused’s written submissions at [49]).
16. I do not think the applications in this matter get past ss 97 and 98. I will first of all set out the sections:
97 The tendency rule
(1)
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency
(whether because of the person’s character or otherwise) to act in a particular way, or
to have a particular state of mind 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.
(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 tendency evidence presented by another party. 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.
(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.
(Notes omitted)
17. Dealing first with the tendency evidence application, the majority of the High Court in Hughes v The Queen [2017] HCA 20; 263 CLR 338 said this at [39]:
Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the
identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.
(Emphasis added)
18. The matters said by the Crown to be the tendencies on the part of the accused are set
out at [20] of the Crown’s written submissions:
Regarding Trial E, the Crown has identified eight tendencies on the part of both accused relevant to the facts in issue:
1. To plan and carry out joint armed robberies of registered and licensed clubs, with gambling facilities, in the South of Canberra, to secure sums of cash;
2. To use a disguise, including gloves, head coverings and accents, to protect their identity while carrying out the joint armed robbery;
3. During the joint armed robbery target the manager, or employee in charge, of the Club to facilitate access to the safe and obtain stored cash;
4. To cause fear in the manager, or employee in charge, of the Club to ensure their compliance by threatening harm;
5. To threaten harm to force compliance with demands, neutralise resistance and avoid identification by witnesses during the joint armed robbery;
6. To commence a countdown from 10 with the treat of harm of the countdown ends and demands for case have not been met (incidents 11, 13 and 14);
7. To threaten witnesses, after cash has been obtained, as they depart the scene (convicted act, incidents 9, 10 and 15)
8. To direct witnesses to wait a specified time period after offenders depart before moving to facilitate an effective getaway (convicted act, incidents 9 and 15).
(Citations omitted)
19. I was greatly assisted in reaching my conclusions by the evidence of Detective Sergeant Saunders. This officer answered questions put to him under cross-examination, and by me, with absolute fairness and with the advantage of his extensive experience in dealing with robbers. In addition to his oral evidence the officer also produced a particularly helpful table (Exhibit C) which highlighted different aspects of the six robberies, to illustrate the asserted similarities, and also gave details of other robberies that had taken place between the dates of the first and last of the six robberies.
20. In addition, Detective Sergeant Saunders said that following the arrests of the accused (UD in February 2018 and TF in August 2018) there had only been one attempted robbery at a club in the ACT.
21. All of the parties provided detailed written submissions for which I am grateful. The Crown in supplementary oral submissions was at pains to ensure that I understood the following:
(a)
That my approach to the evidence should be global to consider the whole of it rather than undertake an analysis of minor differences between the robberies;
(b) Where there were examples of “dissimilarities” between the robberies they should be, effectively, ignored because they did not detract from the
similarities; and(c) The similarities that did exist described a ‘modus operandi’ which could be interpreted as the signature of the accused.
22. In support of the above points the Crown, particularly in relation to the coincidence application, which I deal with below, took me to two decisions of the New South Wales Court of Criminal Appeal: Selby v R [2017] NSWCCA 40 and R v Ceissman [2010] NSWCCA 50. Both of these cases contain useful statements of principle. However, they both have a distinguishing feature from the present matter. In each case there was direct evidence of the identity of the alleged offender. In Selby the evidence came from a victim, in Ceissman the evidence came from a co-accused.
23. I think Selby is probably more helpful to the accused, in particular this passage at [24]:
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.
24. In relation to the conceded prejudice arising from inclusion of the Huskisson robbery, the Crown submitted that that prejudice could be cured by appropriate directions from the trial judge. In the Huskisson matter the accused had pleaded guilty to an armed robbery
in 2010. UD was then 17 years of age and TF was “about 20”.
25. One of the points made by the Crown was that UD had made admissions about the use of foreign accents in the Huskisson robbery. I initially thought the Crown was suggesting the admissions were contained in the agreed Statement of Facts. However, on reviewing the transcript, and the written submissions, it is plain that the Crown was not making that assertion. Rather, the Crown was referring to the contents of a record of interview and statements made to undercover officers. While still being of some weight the admissions cannot be used against TF and certainly do not carry the probative value which they would have attracted had they been included in an agreed Statement of Facts.
26. What I think emerges from a close examination of the alleged similarities shown in Exhibit C, together with the facts in the Huskisson robbery, is that they are no more than the common ingredients of an armed robbery. This is not to say that every armed robbery will contain each of these attributes. For example, there might be instances where brazen robbers, not fearful of identification, might disregard the need for a disguise.
The Crown’s exhortation that I should not be pedantic in picking apart the similarities is
blunted by the passage quoted above from Selby. The dissimilarities, in my view,
significantly “undercut the improbability of something being a coincidence”. The “close
similarities” referred to in Hughes simply do not exist.
28. On examination, Exhibit C certainly shows some broad similarities. However, they are not consistent through the six robberies. Similarities such as the presence in two robberies of a knife, or in a different two robberies of an electrical weapon, do not have the added force of the identification of the respective knives and electrical weapons as being the same in the respective robberies. While Detective Sergeant Saunders thought, on viewing the relevant CCTV footage, that, for example, the knives had similar features, he could not, again in a demonstration of his inherent fairness, say that they were the same.
29. The use of foreign accents was another similarity pressed by the Crown. Again, examination of Exhibit C reveals a consistent use of accents but an inconsistent identification of the nature of the accent. One also has to take into account that perceptions of an accent will vary from person to person. I also note that in respect of
the first robbery, on 14 May 2017, the table states that the two offenders “[s]poke to each
other in an apparent foreign language”. There is no evidence to suggest that the accused
speak any language besides English.
30. In relation to the clothing and disguises worn by the offenders in the six robberies, other than the fact of a disguise, there is no consistency in the description of the face coverings or any other item of clothing. This is a particular example of the dissimilarities outweighing the similarities.
31. Regarding the Huskisson robbery I accept the Crown’s point that juries are robust and
could be directed as to the appropriate manner with which to deal with the admissions inherent in the pleas of guilty that had been made in respect of that robbery. Even if there was no evidence of a conviction, the prejudice arising from the admissions, in particular where one of the offenders was a minor at the time, would be significant and likely to outweigh the probative value of the evidence. Without doubting the abilities of the trial judge, I think the appropriate directions will be difficult to compose.
32. The requirement emphasised in the quote from Hughes above does not exist here
because the “conduct evidencing the tendency” is conduct inherently common to the act
of armed robbery of an establishment such as a club or bank.
33. It follows that I do not think the tendencies relied upon by the Crown, essentially because of their mundane nature within the expected procedure of an armed robbery, have the necessary probative value for the application to succeed.
34. Finally, by way of illustration of my point, in Bank Robbery for Beginners (Macmillan Australia, 2010) the author, Mr Anthony Prince, describes a particularly inept robbery by two persons of a bank in Vail in the American State of Colorado. Had Mr Prince been intent on giving real advice about bank robberies to beginners, he would most likely have included as suggestions all of the asserted tendencies identified by the Crown.
35. Turning now to the s 98 application, my reasons for rejecting this application are essentially the same.
36. The coincidences relied upon by the Crown are set out at [34] of its written submissions, as follows:
COINCIDENCE EVENT
A. Two male offenders Found in events A-G Targeting of registered and licensed club located in B. Found in events A-G the south of Canberra with gambling facilities C. Targeting of safe for cash Found in events A-G D. Obtaining cash from club Found in events A-G E. Club entered within an hour of either side of closing Found in events A, B, E, F, G F. Gloves worn Found in events A-G G. Head covering worn Found in events A-G H. Offenders armed with offensive weapon/s Found in events A-G I. Bag for cash stolen during robbery Found in events A-G J. At least one offender speaks with an accent Found in events A-G Manager/Supervisor of the club targeted to obtain Found in events A-G K. cash Threats of harm to employees to enforce compliance Found in events A-G L. and avoid identification M. Directing patrons and employees to the ground Found in events A-G Countdown from 10 with threat to harm at 0 to enforce N. Found in events D, E, F compliance Direction to staff to wait a specified amount of time O. Found in A, B, G after offenders left P. [UD] visited club prior to robbery Found in events A-G Q. Knowledge of licensed premises Found in events A-G 37. With the exception of ‘P’ and ‘Q’ there is again little to distinguish the coincidental acts from what might be expected in an armed robbery. As to ‘P’ and ‘Q’, without more, they are of almost no probative value. UD’s familiarity with the clubs is no doubt an attribute
shared with any number of persons who frequent such venues. In addition, it is most likely that a prospective robber would familiarise himself or herself with the premises before attempting the crime.
38. I think it useful to quote part of the directions suggested in the New South Wales Bench Book, at [4-237], to explain my conclusion:
However, as part of its case against [the accused], the Crown has led evidence that [the
accused] … [specify the coincidence evidence].
That evidence is before you because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that a jury would be satisfied that the person who did one act (or set of acts) must have done the other/s. That is to say, there is such a significant similarity between the acts, and the circumstances in which they occurred, that it is highly improbable that the events occurred simply by chance, that is, by coincidence. The improbability of two or more events occurring by chance, or coincidently, may lead to a conclusion that an accused person committed the act (or had the state of mind) that is the subject of the charges.
(Original emphasis)
39. There is no improbability of the asserted individual acts occurring by coincidence because these are acts that one would normally associate with an armed robbery.
40. I wish to emphasise, both in relation to tendency and coincidence, that I am not elevating the dissimilarities over the impact of the similarities. This is not a case where this passage from Page v The Queen [2015] VSCA 357 applies:
[O]nce the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish
that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.
(Citations omitted)
41. Rather, the similarities here are the frequently found ingredients of a robbery. The dissimilarities are so many and so distinct that they overwhelm the probative value of the similarities.
42. In conclusion, and applicable to both the s 97 and s 98 applications, I cannot identify in the asserted tendencies or acts of coincidence any matter that is so particular to any of the accused that they might lead a jury to identify from them either of the accused, let alone to reach a finding that participation in one robbery was suggestive of participation in any other robbery.
43. The order of the Court is that the applications to adduce evidence pursuant to ss 97 and 98 are rejected.
I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.
Associate:
Date: 8 December 2020
4
2