R v Williams-Savage; R v Sloane - [2021] ACTSC 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Williams-Savage; R v Sloane
Citation:	[2021] ACTSC 40
Hearing Date:	22 March 2021
DecisionDate:	22 March 2021
Before:	Elkaim J
Decision:	See [21]
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to adduce coincidence evidence – robbery offences – similarities in events – probative value – prejudice to accused
Legislation Cited:	Evidence Act 2011 (ACT) s 98
Cases Cited:	R v Gale; R v Duckworth [2012] NSWCCA 174; A Crim R 487
Parties:	The Queen ( Crown) Jacob John Williams-Savage ( Accused) Daniel Robert Sloane (Accused)
Representation:	Counsel S McFarland ( Crown) S McLaughlin ( Accused) K Musgrove (Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT (Accused) McKenna Taylor ( Accused)
File Numbers:	SCC 223 of 2020; SCC 225 of 2020 SCC 221 of 2020; SCC 220 of 2020

ELKAIM J:

This application relates only to the accused (respondent) Mr Williams-Savage.

The Crown has filed a Notice of Intention to Adduce Coincidence Evidence dated 1 March 2021. It is supported by an affidavit of Ms Rhiannon McGlinn affirmed on the same date. In addition the Crown tendered a series of photographs which became Exhibit A.

The respondent did not tender any evidence but did prepare a very useful chart setting out the alleged acts or incidents said to be coincidental between the events stipulated in the Crown’s application. The chart has been placed in the court file.

The application seeks leave to rely on 12 events as coincidence evidence of the type referred to in s 98 of the Evidence Act 2011 (ACT). As a preliminary point, I note the respondent accepts that he was given proper notice of the application.

The 12 events relied upon by the Crown may be split into three categories: Events 1 to 4 are the charges the respondent is facing in his forthcoming trial. Events 6 to 12 make up offences to which the respondent has pleaded guilty. Event 5 does not relate to an offence but rather to the presence of the respondent at a hotel on the afternoon of Event 4 in which his identity is beyond doubt as is the fact that he is driving a vehicle said to have been involved in Events 3 and 4 and wearing shoes apparently very similar to those of a culprit in Event 4.

It is clear from the chart that the items of asserted coincidence in Events 6 to 12 are significantly less common than those in the first four events. The Crown also conceded that in leading evidence about Events 6 to 12 it would be necessary to inform the jury that the respondent had pleaded guilty to those offences. The prejudice would be extreme.

Taken with the reduced commonality of characteristics in Events 6 to 12, the degree of prejudice will far outweigh the probative value of the evidence. Accordingly, I can immediately reject the Crown’s application in respect of Events 6…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTSC 40
Decision Date

CaseChat Overview and Summary

This case involves the Crown seeking to adduce coincidence evidence in the trial of Jacob John Williams-Savage and Daniel Robert Sloane. The evidence in question pertains to a series of robberies, and the court had to determine the admissibility of certain evidence under section 98 of the Evidence Act 2011 (ACT). The court had to consider whether the probative value of the evidence substantially outweighed any prejudicial effect it might have on the accused. The Crown sought to rely on 12 events as coincidence evidence, which can be divided into three categories: Events 1 to 4 are the charges the respondent is facing in his forthcoming trial, Events 6 to 12 make up offences to which the respondent has pleaded guilty, and Event 5 does not relate to an offence but rather to the presence of the respondent at a hotel on the afternoon of Event 4. The court found that the Crown's application in respect of Events 6 to 12 should be rejected as the prejudice would be extreme and the probative value of the evidence would be outweighed by the prejudice.

The court then considered Events 1 to 4 and found that the commonality of coincidences in these events combined to give the evidence significant probative value. The court agreed with the Crown that taken individually some of the coincidences might not achieve the stated purpose, but viewed in total, a picture emerges of commonality and coincidence which might significantly influence the identification of the respondent. The evidence will undoubtedly be prejudicial to the respondent, but it is evidence that will be led in any event as part of the Crown's case. The court found that the probative value of the coincidence evidence outweighed its prejudicial effect.

The court made the following orders: (i) The Crown may rely on Events 1 to 5 inclusive, as identified in the Notice of Intention to Adduce Coincidence Evidence dated 1 March 2021 as coincidence evidence pursuant to s 98 of the Evidence Act 2011. (ii) The Crown may not rely on Events 6 to 12 inclusive, as identified in the above Notice, as coincidence evidence.

Orders