Tasmania v H - [2015] TASSC 36

[2015] TASSC 36

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v H [2015] TASSC 36

PARTIES:  STATE OF TASMANIA
  v
  H, B L
  HALL, Jamie Reginald

FILE NOS: 39/2013

224/2013

DELIVERED ON:  27 April 2015
DELIVERED AT:  Hobart
HEARING DATES:  13 March, 27 April 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under the uniform evidence law – Generally – Tendency to rob newsagencies – Striking similarities between events and circumstances.

Evidence Act 2001 (Tas), sss 97(1), 98(1), 101(2).
R v Lockyer (1996) 89 A Crim R 457; L v Tasmania (2006) 15 Tas R 381; R v Forward (2009) 273 ALR 286; R v PWD [2010] NSWCCA 209; BP v The Queen [2010] NSWCCA 303, referred to.
Aust Dig Criminal Law [2780]

Criminal Law – Procedure – Information, indictment or presentment – Joinder – Joint or separate trial – Embarrassment or prejudice – Aggravated armed robbery – Evidence of co-accused's participation in other robberies.

Criminal Code (Tas), s 330(1)(a).
Leaman v The Queen (1987) 28 A Crim R 104, referred to.
Aust Dig Criminal Law [3079]

REPRESENTATION:

Counsel:
             Crown:  A Shand
             Accused H:  K Baumeler
             Accused Hall:  T Kovacic
Solicitors:
             Crown:  Acting Director of Public Prosecutions
             Accused H:  No solicitors
             Accused Hall:  No solicitors

Judgment Number: [2015] TASSC 36
Number of paragraphs: 24

Serial No 36/2015
File Nos 39/2013
224/2013

STATE OF TASMANIA v B L H
and JAMIE REGINALD HALL

REASONS FOR JUDGMENT BLOW CJ

27 April 2015

The two accused have been jointly indicted on a single charge of aggravated armed robbery. Both have pleaded not guilty.
The Crown wishes to rely on certain evidence relating to Mr Hall as both tendency evidence and coincidence evidence. Both accused object to the admission of that evidence. In the event that it is admitted, B L H seeks an order for the indictment to be severed. The evidence in question relates to two other armed robberies that were committed by Mr Hall, both committed at suburban newsagencies, both committed at about 4.30pm, both involving a staff member being threatened with a knife, both involving Mr Hall jumping over the counter and taking cash, and both involving an arrangement for a car and a driver to be ready for his departure.
The case against both accused is wholly circumstantial. The Crown alleges that Mr Hall and a youth named S entered a newsagency at Sandy Bay at about 4.30pm on 25 January 2013 and robbed a staff member of cash while B L H waited for them in a getaway vehicle. The robbery was filmed by four closed circuit television cameras. The footage shows two robbers entering the newsagency and carrying out the robbery, but they wore hooded jackets with the hoods up, as well as cloths over their faces. They cannot be recognised from the footage. One of the robbers carried two large kitchen knives. The other was unarmed. The unarmed robber jumped over the counter and took cash from cash registers while a young female staff member stood with her hands in the air.
Apart from the evidence of Mr Hall's participation in other newsagency robberies, the Crown proposes to adduce evidence of the following facts:
·     CCTV footage from Woolworths' Sandy Bay store, filmed in the minutes leading up to the Sandy Bay newsagency robbery, shows two young men. Constable Smith-Rees recognised them as Mr S and B L H. The one whom she recognised as Mr S appears to be wearing a grey long-sleeved top with a distinctive red logo on the front, similar to the top worn by the armed robber inside the newsagency.
·     Constable Smith-Rees saw kitchen knives on sale at Woolworths that matched the knives carried by the armed robber and visible in the newsagency CCTV footage. The packaging of the knives on sale at Woolworths described each knife as a Wiltshire Majestic Cook's Knife with a 21 centimetre blade.
·     The store manager of the Woolworths Sandy Bay store conducted a stocktake on 23 February 2013 which revealed that two such knives were missing.
·     At about 4.28pm on the day of the robbery a woman named Dobson, while sitting in her car waiting for an appointment, saw two men wearing grey "hoodies", with their hoods up over their heads, cross Gregory Street and get into a light blue hatchback car with the registration number C 92 TL. She saw one of the men adjusting a white mask on his face. It had the eyes cut out of it. Ms Dobson thinks it had the mouth cut out of it, and that the other man was also wearing a mask. She recorded the time and the registration number on her mobile phone. She did not see a third person in the car.
·     A woman named Codey Bradford owned a blue Nissan Pulsar hatchback with the registration number C 92 TL on the day in question. She was living in Mockridge Road, Clarendon Vale. She drove Mr Hall into the city and back on the morning of the day of the robbery. She left home again at about 2pm on foot, leaving her car in the driveway and her keys in the car. The car was gone when she got home at about 3pm or 3.30pm. B L H brought the car to her at her mother's house in Benboyd Court, Rokeby at about 5.30pm.
·     At about 9.30pm on the day of the robbery two police officers found a quantity of clothing that had been abandoned by the side of Pass Road in Clarendon Vale. The clothing comprised a grey hooded jacket, a white pair of shoes with brown and black stripes, and several socks. There were also three pieces of white cloth material, and the packaging from some new socks.
·     The newsagency CCTV footage shows that the unarmed robber wore a sock or something similar over his right hand. The item on his right hand looks like the type of sock found at Pass Road. Constable Smith-Rees saw similar socks on sale in Woolworths at Sandy Bay. The packaging found at Pass Road was from three pairs of Woolworths Essential Sports Socks of the anklet type.
·     One of the items found beside Pass Road was part of a white T-shirt with two holes cut in it. Three samples of cloth from that item were DNA tested by officers of Forensic Science Service Tasmania. On two of those samples, DNA matching that of Mr Hall was found. The chances of another person having matching DNA are one in one hundred billion.
·     The third sample from that garment was stained with human blood, in which DNA was found that matched the DNA of Mr S. The chances of another person having matching DNA are one in one hundred billion.
·     The grey hooded jacket found beside Pass Road had a number of bloodstains on it. DNA matching that of Mr S was found in two of the cloth samples from that jacket. The chances of another person having matching DNA are one in one hundred billion.
·     A swab from the inner surface of the hood of that jacket revealed DNA matching that of Mr Hall. The chances of another person having matching DNA are one in one hundred billion.
·     A second piece of white fabric found beside Pass Road was tested. Four samples from that item contained DNA matching that of Mr S. The chances of another person having matching DNA are one in one hundred billion. Three of those samples were bloodstained but one was not.
·     A third piece of white fabric found beside Pass Road was DNA tested. One of the samples from that item contained DNA matching that of Mr S. The chances of another person having matching DNA are one in one hundred billion.
·     The three pieces of cloth were each given a screening test for saliva. The first two gave positive results to that test but the third did not.
·     The blue Nissan Pulsar was searched by police officers. They found and photographed packaging from two Wiltshire Majestic Cooks' Knives. They also found a hooded top with writing on the front reading "ATLANTIC 1972 NJ CITYSIDE". That garment matched the top that was worn by the man filmed in Woolworths who is said to be B L H.
·     DNA testing of the knife packaging found in the car resulted in two matches to the DNA of Mr S. As to one sample, the chances of another person having matching DNA are one in one hundred billion. As to the other, the chances are one in three billion.
·     Testing of two swabs of a stain on the left side of a shoe found beside Pass Road revealed DNA matching that of Mr S. The chances of another person having matching DNA are one in one hundred billion.
Without the evidence as to Mr Hall's participation in other robberies, the only circumstantial evidence linking him with the Sandy Bay robbery is the evidence of DNA that matched his DNA being found on two garments located on Pass Road – the white T-shirt with two holes cut in it, and the grey hooded jacket. People sometimes borrow one another's clothes. People sometimes acquire second hand clothes. The jury will need to consider the hypothesis that some other person participated in the Sandy Bay robbery wearing clothes that were once worn by Mr Hall. The jury would also have to consider the hypothesis that when Mr Hall travelled in Ms Bradford's car, traces of his DNA were left inside that car when he got out; that the robbers came into contact with that DNA; and that Mr Hall was not involved in the robbery.
"Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v The Queen (1990) 171 CLR 207 at 211. Obviously the principal issue for the jury, when considering the charge in relation to Mr Hall, will be whether the circumstantial evidence that it accepts leaves open the possibility that he was not one of the two men who entered the newsagency and robbed it. The Crown wishes to rely upon the evidence concerning his two other newsagency robberies as additional circumstantial evidence with a view to contending that the totality of the circumstantial evidence makes that hypothesis so unreasonable that it should be rejected.
The Crown has served notice on Mr Hall of its intention to rely upon tendency and/or coincidence evidence with a view to establishing that he has a tendency to do the following things:
"(a)to rob newsagencies;
(b)to rob newsagencies in the late afternoon after 4pm, in close proximity to closing time;
(c)to commit robberies of newsagencies whilst wearing particular clothing, specifically a hooded jumper, a facial disguise and a sock covering his hand;
(d)to jump the counter top inside the Newsagencies immediately after entering and/or for the purpose of leaving;
(e)to take cash from the cash register or staff side of the counter;
(f)to use a knife in the commission of the robbery;
(g)to have a vehicle and driver waiting to escape the scene of the robbery."
In the past Mr Hall has pleaded guilty to charges of armed robbery in relation to newsagencies at Glenorchy and Lenah Valley. He committed the robbery at Glenorchy on 22 November 2012, about two months before the Sandy Bay robbery, and that at Lenah Valley on 21 August 2013, about seven months after the Sandy Bay robbery. The Crown proposes to rely on evidence as to the facts stated by prosecutors in relation to the pleas of guilty, and evidence establishing that the asserted facts were not disputed. The Crown proposes to rely on evidence that the robberies at Glenorchy, Sandy Bay and Lenah Valley had the following similarities:
(a)Each robbery occurred in a newsagency.
(b)The Glenorchy robbery was at 4.35pm. The Sandy Bay robbery was at about 4.30pm. The Lenah Valley robbery was at 4.23pm.
(c)(i) At both Glenorchy and Lenah Valley, Mr Hall wore a hooded jumper with the hood up. The unarmed robber at Sandy Bay wore a hooded jumper with the hood up. (ii) At Glenorchy Mr Hall wore black sunglasses. At Lenah Valley he wore a black balaclava. At Sandy Bay the unarmed robber wore a white face mask. (iii) At Glenorchy Mr Hall did not cover his right hand. At Lenah Valley he wore a black sock on his right hand. At Sandy Bay the unarmed robber wore a black and white sock on his right hand.
(d)At both Glenorchy and Lenah Valley, Mr Hall jumped over the top of the newsagency counter immediately after entering, and jumped back over it again immediately before leaving. At Sandy Bay, the unarmed robber jumped over the counter immediately after arriving, but went around the counter before leaving.
(e)At Glenorchy Mr Hall took a bag of cash from under the counter. At Lenah Valley he took cash from the cash registers. At Sandy Bay the unarmed robber took cash from the cash registers.
(f)At each of Glenorchy and Lenah Valley, Mr Hall used a kitchen knife in committing the robbery. At Sandy Bay the armed offender (alleged to be Mr S) used two kitchen knives in committing the robbery.
(g)At Glenorchy, Mr Hall had made arrangements for a taxi, with an innocent driver, to be waiting for him in a nearby street, but fled on foot without attempting to use the taxi. At Lenah Valley Mr Hall had innocent friends waiting for him in a car in a nearby street, and left after the robbery as a passenger in that car with them. At Sandy Bay, the two men seen by Ms Dobson left in the Nissan Pulsar.
Counsel for Mr Hall submitted that the evidence relating to the Glenorchy and Lenah Valley robberies did not constitute tendency evidence or coincidence evidence at all. He argued that it did not have significant probative value, as required ss 97(1)(b) and 98(1)(b) of the Evidence Act 2001. Alternatively, he argued that it was so highly prejudicial that it should be excluded pursuant to s 101(2) of that Act.
The admissibility of tendency evidence is governed by s 97(1) of the Evidence Act. That subsection reads as follows:
"(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 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."
The admissibility of coincidence evidence is governed by s 98(1) of the same Act. That subsection reads as follows:
"(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."
In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn: KMJ v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214. Tendency evidence and/or coincidence evidence has "significant probative value" if it has more than mere relevance and is "important" or "of consequence": R v Lockyer (1996) 89 A Crim R 457 per Hunt CJ at CL at 459; L v Tasmania (2006) 15 Tas R 381 per Underwood CJ, with whom Crawford J (as he then was) and Tennent J agreed, at [31]. For tendency evidence to be admissible under s 97, there does not have to be evidence of striking similarities between events or circumstances, or even of similar behaviour on different occasions: R v Forward (2009) 273 ALR 286 per Campbell JA, with whom Howie and Rothman JJ agreed, at [38] and [125]; R v PWD [2010] NSWCCA 209 per Beazley JA, with whom Buddin J and Barr AJ agreed, at [79]. "However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value": BP v The Queen [2010] NSWCCA 303 per Hodgson JA, with whom Price and Fullerton JJ agreed, at [108].
Counsel for Mr Hall drew my attention to a number of dissimilarities between the Sandy Bay robbery and the other robberies known to have been committed by Mr Hall:
·     At Glenorchy and Lenah Valley Mr Hall entered the newsagencies alone, but two robbers entered the newsagency at Sandy Bay.
·     At both Glenorchy and Lenah Valley, Mr Hall was armed with a knife, but the Crown asserts that he was not carrying a knife or any weapon at Sandy Bay.
·     At both Glenorchy and Lenah Valley, only one knife was produced, but two were produced at Sandy Bay.
·     At Sandy Bay the unarmed robber wore a white face mask, but Mr Hall wore black sunglasses at Glenorchy and a black balaclava at Lenah Valley.
·     Mr Hall did not wear a sock on his right hand at Glenorchy, but the unarmed robber wore one at Sandy Bay.
·     At both Glenorchy and Lenah Valley Mr Hall jumped over the top of the newsagency counter both when arriving and when leaving, but at Sandy Bay the unarmed robber jumped over the counter only on arrival, and went around it when leaving.
·     At Glenorchy Mr Hall took a bag of cash, but at Sandy Bay the cash was taken from the cash registers.
·     At Glenorchy Mr Hall fled on foot, having planned to travel by taxi, but at Sandy Bay the robbers left in a private car.
·     After the Lenah Valley robbery, Mr Hall travelled in a car with friends who had no knowledge of the robbery, but everyone in the car in Sandy Bay must have known of the robbery there.
Counsel for Mr Hall also argued that in important respects the Glenorchy and Lenah Valley robberies were far from unique. It is not unusual for robbers to target commercial premises, to use knives as weapons, to rob employees of cash, and to depart in waiting cars.
However the Sandy Bay newsagency was one of three newsagencies that was robbed at about 4.30pm within a period of nine months. All three robberies involved a staff member being threatened at knifepoint, a robber jumping the counter, that person using some form of facial concealment, the theft of cash, and a plan to depart as a passenger in a car. In those respects, the three robberies have striking similarities. I am satisfied that the evidence of the Glenorchy and Lenah Valley robberies has significant probative value, and it falls within the scope of both ss 97(1) and 98(1) of the Evidence Act.
Section 101(2) of the Evidence Act provides as follows:
"(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, 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."
This subsection is concerned with the prejudicial effect that evidence can have "when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task": Festa v The Queen (2001) 208 CLR 593 per McHugh J at [51]. That sort of risk can be obviated by directing a jury not to engage in propensity reasoning, and to take care not to be influenced by an emotional response to the evidence and not to give the evidence more weight than it deserves. On the facts of this case, there is no reason why a jury should have any difficulty complying with such directions.
The evidence of Mr Hall's participation in two very similar armed robberies adds a great deal to the circumstantial case against him, which would otherwise be dependent upon evidence that DNA that matched his DNA was found on two garments that were apparently worn during the robbery. Having regard to the strength of that tendency and coincidence evidence, and to the smallness of the risk of unfair prejudice, I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on Mr Hall. I therefore conclude that that evidence is admissible against him, and that there is no reason to exclude it.

I note that the Crown does not propose to lead evidence from victims of the Glenorchy and Lenah Valley robberies. Evidence relating to those robberies can be limited to evidence of Mr Hall pleading guilty, and evidence of the facts that were stated in his presence and not disputed when those charges were dealt with. Evidence from any of the victims might well have had a prejudicial effect that was not outweighed by its probative value.
As I have said, B L H contends that he and Mr Hall should receive separate trials if the evidence as to Mr Hall committing other robberies is admitted. His counsel argued that the case against B L H is significantly weaker than the case against Mr Hall; that there was a danger of a guilty verdict based on "guilt by association"; and that it was therefore in the interests of justice for these two accused to have separate trials.
Section 330(1)(a) of the Criminal Code provides that any number of persons who are alleged to be parties to the same crime may be joined in the same indictment and tried together or separately. Ordinarily, when the Crown case is that a number of accused persons were engaged in a joint or common enterprise, there should be a joint trial: Leaman v The Queen (1987) 28 A Crim R 104 per Neasey J at 105. However, as Neasey J said in the same case, at 107:
"The prima facie rule, that persons jointly charged should be tried together, is always subject to the proviso that no accused should be thereby deprived of his right to a fair trial; but possible prejudice arising from the presentation of evidence admissible against one but not another or others does not necessarily put a fair trial at risk."
The evidence of Mr Hall's participation in two other robberies seems to me to be irrelevant to the case against B L H. The principal evidence against B L H is the evidence that he was in Woolworths before the robbery; the evidence that he was driving Ms Bradford's car that afternoon, at least when it was returned; the evidence of knife packaging, apparently from a knife stolen from Woolworths, and bearing DNA matching that of Mr S, being found in that car; and evidence of the finding in that car of a top matching that worn by B L H in Woolworths. There is plenty of evidence linking Mr S with the robbery, and thus any evidence linking B L H with Mr S also links him to the robbery. For the purposes of this ruling I accept that, because of the evidence of Mr Hall's participation in other robberies, the Crown's case against him is stronger than its case against B L H.
However I am not persuaded that B L H needs to be tried separately from Mr Hall in order to get a fair trial. Juries are well able to assess the strengths and weaknesses of the evidence against two different accused persons. This is not a case of great complexity. It is not a case where one accused has sought to implicate the other. There is no reason why the jury should not be able to consider the case against each accused man separately, conscientiously and impartially. There is no reason why the information about Mr Hall's participation in other robberies should distract them from that task when they are considering their verdict in relation to B L H.
I therefore refuse the application for separate trials.