R v Vincent
[2020] ACTSC 279
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vincent |
Citation: | [2020] ACTSC 279 |
Hearing Date: | 6 October 2020 |
DecisionDate: | 11 November 2020 |
Before: | Burns J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to adduce coincidence evidence – dishonestly receiving stolen property – whether the evidence has significant probative value – whether the probative value of the evidence substantially outweighs the potential prejudicial effect of the evidence |
Legislation Cited: | Criminal Code 2002 (ACT) ss 313, 324 Evidence Act 2011 (ACT) ss 98, 101 |
Cases Cited: | R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Kandola [2016] ACTSC 395 R v MR [2013] NSWCCA 236 |
Parties: | The Queen (Crown/Applicant) Christopher Lee Vincent (Accused/Respondent) |
Representation: | Counsel S McFarland (Crown/Applicant) J Purnell SC (Accused/Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown/Applicant) JDR Law (Accused/Respondent) | |
File Number: | SCC 121 of 2020; SCC 122 of 2020 |
BURNS J:
The present application came before me for hearing on 6 October 2020. At that time the accused, Christopher Vincent, was due to stand trial commencing on 16 November 2020 on a single charge alleging that between 15 February 2020 and 27 March 2020 he dishonestly received stolen goods. Subsequently, on 23 October 2020 the Crown successfully applied to vacate the trial date. One of the reasons for the application to vacate the trial date was that on 20 October 2020 the Crown filed a fresh indictment charging the accused with nine counts of receiving stolen property in the period between 15 February 2020 and 28 March 2020. The fresh indictment also contains nine counts alleging that Megan Joy Young was knowingly concerned in the offences of receiving stolen property.
By an application in proceeding dated 19 August 2020, the Crown seeks to be permitted to adduce coincidence evidence at the trial of the accused, as notified in the Notice of Intention to Adduce Coincidence Evidence dated 17 August 2020 (the notice). I note that the notice is in fact dated 19 August 2020. The application came before me on 6 October 2020, at which time I heard submissions by counsel for the Crown and Senior Counsel for the accused.
I will use the term “coincidence evidence” to describe the evidence the Crown proposes leading, although the term may be misleading. The proposed evidence is led not to establish a coincidence, but to negative any realistic prospect of coincidence.
The notice
The notice sets out the particulars of two incidents. Incident 1 relates to 24 December 2019 when police executed a search warrant at premises at [redacted] in Kambah, ACT. The accused was present at that address when police attended. At that address, police located a large quantity of assorted tools, other building/hardware equipment and bicycles. Police were able to identify some of that equipment as stolen property belonging to a nominated individual. The accused was charged with an offence of receiving stolen property with regard to the property police identified as belonging to a nominated individual, and a further offence of unlawful possession of stolen property with regard to the remaining property. The accused entered pleas of guilty to one charge of receiving stolen property, contrary to s 313 of the Criminal Code 2002 (ACT) (the Code), and two charges of unlawful possession of stolen property, contrary to s 324(1) of the Code arising out of these facts. It is not clear from the Statement of Facts regarding these offences where the property was located within the premises.
At this point, I will observe that the heading to s 324 of the Code, which describes the subject matter of the provision as “Unlawful possession of stolen property”, does not accurately describe the offence created by s 324(1). This is because the offence created by the section does not require the prosecution to prove that the property the subject of the charge is stolen. All the prosecution must prove, relevantly for present purposes, is that there is a reasonable suspicion that the property is stolen or otherwise unlawfully obtained. It is a defence to such a charge if an accused proves that he or she had no reasonable grounds for suspecting that the property was stolen property or otherwise unlawfully obtained. It may be inferred from the accused’s pleas of guilty to the charges contrary to s 324 of the Code that he accepted that there were reasonable grounds of which he was aware for suspecting that the property was stolen or otherwise unlawfully obtained.
Incident 2 refers to the events that form the basis of the present charges against the accused. It is alleged that on 27 March 2020 police executed a further search warrant on the same premises in Kambah in the ACT. It is alleged that the accused had been residing at that address up until 26 March 2020. It is alleged that the accused’s girlfriend, Emily Young, and her mother, Megan Young were also living at that address. Police located a large quantity of assorted tools, building/hardware equipment and other assorted items at the premises together with a number of bicycles. The property was found in each of the bedrooms of the premises, in the backyard and in the garage. Police questioned Megan Young about the property, and she claimed that the accused had brought all the items to the residence. She further stated that she had not informed the police because the accused had threatened her and her daughter.
The notice states that evidence of the two incidents is to be led at the accused’s trial to prove:
· that the accused possessed stolen items namely tools, items from building and construction sites and bicycles;
· that the accused stored stolen goods received at the residence located at [redacted] in Kambah;
· that the accused knew that he was dealing with stolen goods; and
· that it was the accused as opposed to another person who possessed the stolen items.
I assume that each of the above matters which the Crown seeks to prove relates to the state of mind of the accused and/or his actions in the period between 15 February 2020 and 28 March 2020.
The relevant legislation
The following provisions of the Evidence Act 2011 (ACT) (the Evidence Act) are relevant:
98The 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.
NoteOne of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(1A) Toremove any doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(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.
Note Other provisions of this Act, or of other laws, may operate as exceptions to the
coincidence rule.
…
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
Relevant case law
The Crown drew my attention to several previous decisions. In R v MR [2013] NSWCCA 236 Beech-Jones J, with whom Hoeben CJ at CL and Schmidt J agreed, said at [61]:
Section 98…was intended to establish an exclusionary rule that is designed to prevent the adducing of evidence for a particular purpose or, more accurately, that seeks to invoke a particular form of probabilistic reasoning designed to establish a particular fact or state of mind, unless it has significant probative value.
In the earlier decision of R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487, the accused Duckworth had been an employee of a hotel in Nimbin in New South Wales. He had formerly been a member of the New South Wales Police Service. On 26 June 2006 he reported to police that he had been robbed at gunpoint of the proceeds of the previous day’s trading at the hotel, totalling about $40,000, and was forced to drive in his own vehicle with the robber to a remote area where the robber had left him and driven away in Duckworth’s vehicle. The accused Gale was also a former New South Wales police officer. Both Duckworth and Gale were charged with larceny of the money taken from the hotel in Nimbin on 26 June 2006. The Crown alleged that Duckworth’s account of the robbery was a fabrication and that he, in collaboration with Gale, had stolen the money. There was evidence of an association between Duckworth and Gale prior to 26 June 2006 and evidence of telephone calls between them on or around that date.
On 5 November 2006, both Duckworth and Gale committed an armed robbery at a hotel in Queensland. They were arrested and charged in Queensland. They entered pleas of guilty and were sentenced to terms of imprisonment. The Crown applied to lead coincidence evidence at the accused’s trial, being evidence of the armed robbery committed by the accused in Queensland. The Crown proposed to use the evidence of each of the accused’s participation in the Queensland robbery, which involved the theft of money, as coincidence evidence to prove their involvement in the theft of money from the Nimbin hotel. At first instance, the application was refused. The Crown appealed.
Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, said in relation to s 98 of the Evidence Act 1995 (NSW), at [25]:
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.
In R v Kandola [2016] ACTSC 395, Murrell CJ said at [14]:
On an application to adduce coincidence evidence, the questions for the court are:
(a) Has the tendering party identified a particular act or particular state of mind that is in issue?
(b) What are the two or more events that are said to be similar?
(c) Assuming that the factfinder accepted that the events in question occurred, 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 accepted 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].
Consideration
The Crown has identified the following acts and states of mind which the proposed coincidence evidence would be led to prove:
(a) that the accused possessed stolen items namely tools, items from building and construction sites and bicycles;
(b) that the accused stored the stolen goods received at the residence located at [redacted] in Kambah;
(c) that the accused knew that he was dealing with stolen goods; and
(d) that it was the accused as opposed to another person who possessed the stolen items.
In essence, the Crown proposes to lead the proposed evidence to establish two matters:
(a) that the accused, and not some other person, was the person in possession of the stolen goods located at [redacted] in Kambah on 27 March 2020; and
(b) that the accused knew that the goods were stolen goods.
The Crown identified the similarities in facts and circumstances relevant to the application as follows:
(i) on each occasion, the property located included a large quantity of stolen items namely tools, bicycles and items from residential construction sites;
(ii) on each occasion the items were located at [redacted] in Kambah, being the residence of Megan Young.
The Crown submitted that these facts and circumstances around the two incidents are “strikingly similar” such as to make it highly improbable that the events occurred coincidentally. This would give the evidence, it was submitted, significant probative value such as to satisfy the test in s 98 of the Evidence Act.
It was accepted by the Crown that the proposed coincidence evidence is potentially prejudicial, but it submitted that any potential prejudice could be appropriately ameliorated by directions to the jury.
Senior Counsel for the accused accepted that the evidence is “coincidence evidence”, by which I understand him to concede that it has significant probative value as required by s 98 of the Evidence Act. He simply submitted that if the evidence were admitted the accused could not have a fair trial. By that submission, I understood him to mean that the potential prejudicial value of the evidence is so great that it cannot be ameliorated by appropriate judicial directions, and that the probative value of the evidence does not substantially outweigh the potential prejudicial effect of the evidence: see s 101 Evidence Act.
It is accepted that the Crown has complied with the notice requirements for the present application: see s 98(1)(a) of the Evidence Act. I am satisfied that it would be open to a jury to conclude having regard to similarities in the events of 24 December 2019 and 27 March 2020 and the circumstances in which they happened that it is improbable that the events occurred coincidentally. Those similarities are:
(i) each event involves stolen property;
(ii) the property in each event is of a similar nature;
(iii)the events both involve stolen property being located at [redacted] in Kambah;
(iv) the accused was either residing at the property at [redacted] in Kambah or had just left the property at the time of each event; and
(v) the events occurred three months apart, so they are not so remote in time from each other as to weaken any inference that may arise from the other circumstances.
On the Crown’s case, the accused was not the only person residing at [redacted] in Kambah between December 2019 and March 2020. The co-accused Megan Young is described in the Case Statement as the owner of the premises. In addition, the accused’s girlfriend Emily Young is also alleged to have been an occupant of the premises between the relevant dates. In order to convict the accused of the charge against him, the Crown must prove that it was the accused who received the goods located at the premises on 27 March 2020, and not some third-party such as Megan Young. The proposed coincidence evidence, if accepted by the jury, would have significant probative value in establishing that it was the accused who received the goods as the principal offender, and not Megan Young, Emily Young or some third party. The Crown case is that the items referred to in the charges against the accused have been identified as having been stolen from identifiable persons. If the jury were to accept that the goods found at the premises on 27 March 2020 are stolen goods, and that the accused was the person who received the goods, the proposed coincidence evidence would also have significant probative value in establishing that the accused knew that the goods were stolen.
Turning to s 101 of the Evidence Act, the proposed coincidence evidence cannot be admitted unless the probative value of the evidence outweighs the danger of unfair prejudice to the accused. The unfair prejudice to which this section refers is the possibility that the jury may misuse the coincidence evidence by, for example, reasoning that the evidence of the accused’s conviction for Incident 1 which occurred in December 2019 establishes that the accused is a person of bad character who is likely to have committed the offence with which he is charged. It must be accepted that there is potential for the jury to misuse the coincidence evidence. The question is whether judicial directions to the jury will reduce the potential for such prejudice to the level that the probative value of the evidence outweighs the danger of unfair prejudice to the accused. In a system of trial by jury, we should generally trust that juries will listen to and apply judicial directions regarding how particular evidence may or may not be used. The proposed coincidence evidence has very significant probative value, and there is no reason to believe that a jury will disregard judicial directions as to how the coincidence evidence may and may not be used. The potential prejudice to the accused is not so great that the evidence should be excluded.
I am satisfied that the Crown should be permitted to lead the proposed coincidence evidence in order to establish that it was the accused who received the goods the subject of the charge and which were found at the premises at [redacted] in Kambah on 27 March 2020 and that he knew that the goods were stolen.
These reasons are not to be published, except to parties, until the conclusion of the accused’s trial.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
0
3
0