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 to 12.
Turning now to Events 1 to 4, the respondent pointed out a number of deficiencies in the asserted coincidences. For example, in respect of a crowbar, although present at each of the four events, the respondent correctly identified this implement as part of the ‘usual’ implements of trade of the basic burglar.
Similarly, with three of the events having occurred at Domino’s Pizza Parlours, the respondent said that this franchise was a ‘favourite’ for burglars, noting that a separate Dominos store had been burgled during the same time period as Events 1 to 4. There was no suggestion that this was the work of the respondent.
In relation to the location of the phone in Events 1, 2 and 3, the respondent said there was no evidence as to the precision with which the location of a phone could be identified by reference to it having been ‘connected’ to a local phone tower.
As to the jacket the Crown could only say that the “SENH” featuring prominently on the back of the burglar’s apparel was indicative of a brand-name. The Crown could not assist with the commonality of the brand nor any other feature which might assist its strength as a coincidence in being present at Events 1, 2 and 4.
The respondent said that the shoes said to be the same in Events 4 and 5 were nothing more than similar and moreover, seem to be of the very popular and commonly worn Adidas brand. Unlike a crowbar, it was not suggested that Adidas shoes were commonly used by burglars (perhaps to assist in their rapid departure).
The Crown conceded that, taken individually, each act of coincidence might be subject to a specific attack on its reliability and consequence. However the Crown said that a global approach should be taken in which all of the asserted coincidences are looked at together to establish a probative picture which would lead to, or assist in, the identification of the respondent as one of the burglars involved.
The Crown said that in this regard Event 5 was significant because it put beyond doubt that at least on the afternoon of Event 4, the respondent was using the same Toyota observed in Events 3 and 4, similar shoes to a person involved in Event 4, and the respondent’s phone, which was apparently in the vicinity of Events 1, 2 and 3 was also in the vicinity of Event 5.
I note in respect of the phone that the Crown will be obliged to call evidence to establish the reliability of reaching a conclusion as to the location of the phone when it is apparently near a relay station.
The Crown, in its written submissions, said that the appropriate method of assessing the application was that stated by Simpson J in R v Gale; R v Duckworth [2012] NSWCCA 174; A Crim R 487, at [31]:
In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
· the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;
· the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";
· the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
· the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
· the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";
· in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)).
· the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
The purpose of the Crown in leading the evidence is to identify the respondent as being the person involved in Events 1 to 4 by reason of the “similarities in the events” which exist through the assorted events.
The commonality of coincidences, as indicated in the chart, combine to give the evidence significant probative value. I agree with the Crown that taken individually some of the coincidences might not achieve the stated purpose, and might even be of little weight (for example the Adidas shoes), but viewed in total, a picture emerges of commonality and coincidence which might significantly influence the identification of the respondent.
The evidence will no doubt be prejudicial to the respondent. But it is evidence that will be led in any event as part of the Crown’s case. Of course the trial judge will warn the jury that each count must be treated separately. My point is only that the degree of prejudice will be ameliorated by the evidence being before the jury in any event.
If I am wrong in the last point, I still think the probative value of the coincidence evidence outweighs its prejudicial effect.
Orders
I make 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.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 22 March 2021 |
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