Crown v Accused

2 The armed robbery is alleged to have taken place on 22 April 2018. The other two offences are alleged to have taken place on 30 April 2018. The offences are alleged to have occurred at the same location, with the victims lured to that location in the same manner. Mr Treasure is alleged to have acted alone on the first occasion, but in company with Matthew William Coghlan[2] on the second.

3 The prosecution has filed a notice pursuant to s 97(1)(a) of the Evidence Act 1958 (Vic) ('Evidence Act') indicating its intention to adduce evidence which will establish the tendency of Mr Treasure to act in a particular way, namely:

To lure potential victims to 29 Wilson Street Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knife point.

4 The prosecution intends to rely upon this tendency to act in a particular way as probative of the identity of Mr Treasure as the offender with respect to the armed robbery charge and of his intention to arm himself with a knife and commit armed robbery with respect to the murder charge.

5 The defence objects to the admission of tendency evidence.

7 On or about 19 April 2018, Daniel Fedele came across an online profile in the name of 'Nikki' on an application called SKOUT. After he clicked on that profile, Nikki replied. They had an exchange by text. On either 21 or 22 April 2018, Nikki gave Mr Fedele her mobile telephone number ending in 891 for him to contact her. The 891 telephone service was registered in the name and Berwick residential address of the accused. Two different telephone handsets were later seized from the accused's premises. The SIM card pertaining to the 891 phone number had been used in both.

8 At 9.07pm on 22 April 2018, the 891 telephone service was used to send a text message to Mr Fedele in the following terms:

Hey, it's Nikki. I'm sorry that I taken so long to get back to you babe. My eldest knocked my phone off the bench after we got home and its f&%^$ed my phone.

9 A few further messages were exchanged, before the text conversation ceased for a period.

10 At 10.56 pm on the same date, the 891 telephone service was used to begin a text exchange with Felk Repia in the following terms:

Hello Hello ... What are you doing babe?

Getting smokes then going home to make clouds and drink some juice lol [which the Crown allege refers to smoking methylamphetamine and ingesting gamma-hydroxybutyrate (GHB)]

Would I be able to get a hb of you [which the Crown says refers to 1/16th of an ounce or 1.75 grams] ... I want to try what yours is like before committing to something bigger

I'm not quite selling half ball ATM as I was arrested the other night had all my cash and gear seized so ive had to start all over again I have enough

11 There was further exchange about drugs before Mr Repia wrote:

Do you drive your welcome to come over and try the gear and what I can do is cut you in with my re up that way we both can get a cheaper buy [the Crown allege 're up' refers to restocking of drugs]

12 After further discussion, at 11.22 pm, the 891 service was used to send the following message to Mr Repia:

Yeah we should be able to get something going between us. Just as long as I know it's a good hun.

13 A minute later, at 11.31pm, the 891 service was used to recommence the text conversation with Mr Fedele. An agreement to meet was made during that conversation. The user of the 891 service nominated the location for that meeting to be 29 Wilson Street, Berwick. The conversation finished with the user of the 891 service saying 'yeah sweet babe, hope you're going to stay and chill with be for a bit'.

14 About 45 minutes later, at 12.18 am on 23 April 2018, the 891 service was used to send a message to 'Shane' in the following terms: 'Oi it trezza bro. Can you give me a call back on this number please'.

15 The Crown case is that this message confirms the accused as the user of the 891 phone and that he had held himself out to be a female, Nikki, in the text conversations with Messrs Fedele and Repia.

16 Mr Fedele arrived at 29 Wilson Street at about 10.30 pm Upon arrival he sent a text message to the 891 service asking where he should park. The user of that service replied in the following terms:

BTW babe where I live is a complex for women domestic violence long story short my ex used to beat me up. But it's cool there's no staff here .. when you get here hun just pull up in the car park and come to the front doors and I'll buzz you in.

17 After a further exchange of text messages, Mr Fedele went to the front door to meet Nikki. As he was waiting, he heard a car door slam and a short time later a male walking down the driveway towards him. The male stood next to him and said words to the effect of, 'your mate Nikki that you are waiting for to let you in, give me what is in your pocket ... your mate Nikki, there is no Nikki. Give me what is in your pocket'.

18 The male lifted his left hand and a knife became visible. He said words to the effect of 'don't try anything stupid, I have boys I the car'. Mr Fedele handed over approximately half a gram of 'ice' he had in his pocket. The male took the drugs and walked back down the driveway.

19 Mr Fedele left the scene and tried to telephone Nikki. The call was unanswered.

20 Mr Fedele later provided a physical description of the male that was consistent with the accused. He correctly identified the accused from a photo board, saying he was not 100% sure it was him.[3]

21 Between 23 and 25 April 2018, there was a further exchange of text messages between the 891 number and Mr Repia about whether the user of the 891 service wanted to buy drugs from Mr Repia. Between 25 and 30 April 2018, arrangements were made between the user of the 891 service and Mr Repia to meet for the purpose of a drug transaction.

22 On 30 April 2018 Victoria Meakins was asked by Mr Repia to take him to a Berwick address so that he could 'hook up with a girl'. She agreed.

23 On the evening of 30 April 2018 a message was sent using a telephone service ending in 385 (registered to the accused) via an unknown messaging service to Mr Repia in the following terms:

Where I live is a complex for domestic violence babe so I'll get u to park out the front and come to the front doors. There is no staff so it's all good and I'll buzz you in when you get here hun.

24 The Crown case is that on the same evening, Coghlan took a knife from a Woolworths store under the guise of buying a greeting card, while the accused was waiting outside.

25 Ms Meakins and Mr Repia left home at about 9.40 pm. They arrived at 29 Wilson Street, Berwick some time later. Ms Meakins had driven up and down that street for some minutes as there was confusion about the address. Mr Repia received sporadic messages from the woman he was supposed to meet.

26 After Ms Meakins had parked the car, Mr Repia got out. He was stumbling, bumping into objects as a result of hearing loss and night blindness. Ms Meakins got out of the car to assist him.

27 They were both standing at the front door at about 10.39 pm when the accused and Coghlan approached them. The accused and Coghlan were both armed with knives. The accused said words to the effect of 'come on, give it to me'. The resulting incident was captured by CCTV footage. Mr Repia received multiple stab wounds to his upper body and chest. Ms Meakins suffered a stab wound to her armpit, which punctured her lung, and another stab wound to her other arm.

28 Police and paramedics arrived at the scene at 10.48 pm. Mr Repia was pronounced dead at 11.06pm.

29 Following the incident, the accused and Coghlan walked down Langmore Lane. They lifted a Telstra pit lid on the nature strip and put a mobile phone, later identified as belonging to Ms Meakins, inside it. The Crown relies on CCTV footage of this conduct.

30 The accused and Coghlan returned to the accused's home and discarded their clothing. At 11.10 pm the landline from the accused's residential address was used to call a taxi for 'John'. The accused, Coghlan and Coghlan's partner entered the taxi. A short time later it was intercepted by police. The accused and Coghlan (as well as his partner) were arrested.

31 Police later recovered a knife from 46 Wilson Street, Berwick. A second knife was found in a bag in the taxi. DNA analysis was performed on both knives. The likelihood ratios were: 100 billion times more likely if the accused was a contributor to the DNA on the handle of the knife recovered from 46 Wilson Street; and 100 billion times more likely if Coghlan was a contributor to the DNA on the handle of the knife found in the bag.

32 In his defence response, the accused denies that he used the 891 telephone service to contact Mr Fedele. He denies that he was the offender with respect to the 22 April 2018 armed robbery on Mr Fedele. In short, the issue is identity.

33 In contradistinction, the accused admits that he used the 891 telephone service to contact Mr Repia. He admits his presence with Coghlan at 29 Wilson Street, Berwick on 30 April 2018. But, he denies that he entered an agreement with Coghlan to commit armed robbery.

34 Tendency evidence, defined in the Evidence Act, is a species of circumstantial evidence supportive of a particular mode of reasoning. That is, it grounds an inference that because the accused had the relevant tendency to act in a certain way, it makes it more likely that he (or she) acted in the way asserted by the prosecution on the occasion the subject of the charge.

35 Section 97 of the Evidence Act contains the tendency rule, which restricts admission of tendency evidence unless certain criteria are met. The central issue governing the admission of tendency evidence is the assessment of whether the evidence, taken by itself or with other evidence adduced by the party seeking to adduce it, has 'significant probative value'.

36 In Hughes v The Queen,[4] the High Court held that this assessment of significant probative value involves consideration of two interrelated but separate matters. First, the extent to which the evidence supports the tendency. Second, the extent to which the tendency makes the facts constituting the offence charged more likely.[5]

37 In determining to what extent the tendency makes the facts constituting the offence charged more likely, the court is required to compare the tendency alleged and the facts in issue. The strength of the connection will depend on the degree of particularity of the tendency.[6]

[T]here is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[7]

39 Where the issue is identity, a high level of similarity between the evidence of tendency and the charged offence is required.

40 In the event that the evidence is of 'significant probative value', the court must further consider the restriction in section 101 of the Act before the evidence can be adduced. That section provides that tendency evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

41 In its written submissions, the prosecution argued that, in accordance with Hughes, the court must consider whether the tendency evidence is capable of rationally affecting the probability of the existence of a fact in issue to a significant extent. The facts in issue being the facts that establish the elements of the offence.

42 The prosecution submits that proof that the accused had a tendency to engage in the conduct alleged is highly probative in determining whether the accused committed the armed robbery on Mr Fedele and whether he intended to commit an armed robbery on Mr Repia when he set up the meeting with him.

43 By analogy with multiple complainant sexual offending cases, the prosecution argues that there are 'common feature[s]'[8] which link the two offences together. It is submitted that these common features are striking, namely that the accused held himself out to be a woman 'Nikki', while chatting online with both Mr Fedele and Mr Repia; he discussed the use and purchase of drugs with both victims, he arranged to meet both at the same address and at night; he was armed with a knife on both occasions; and he made demands for items from each victim had while brandishing a knife. Further, the incidents are separated in time by a week, but the online communication was occurring during the same period. The striking similarity between the messages to Mr Fedele on 23 April 2018 at 1.05 am and to Mr Repia on 30 April 2018 at 8.36 pm concerning Nikki's residence at a domestic violence shelter and consequent instructions is highlighted.

44 The prosecution submits that the evidence of the accused's behaviour to act in a certain way as demonstrated by the set up and execution of the armed robbery on Mr Fedele are relevant in proof of his intention to set up and commit an armed robbery on Mr Repia, and thereby to have acted by agreement with Coghlan in the execution of it. The prosecution further submits that the evidence of the accused's behaviour to act in a certain way as demonstrated by the set up and execution (the latter with Coghlan) of the armed robbery on Mr Repia goes directly to the issue of identity of the offender with respect to the armed robbery on Mr Fedele. The tendency to act in a certain way is said to be unique, creating a real and identifiable pattern of behaviour.

45 The prosecution therefore submits that the tendency evidence has significant probative value. The prosecution further submits that this probative value is so significant that it substantially outweighs any prejudicial effect. Detailed directions will be sufficient to ensure that the evidence is used correctly by the jury.

46 In its written submission, the defence submits that it is necessary to compare the asserted tendency with the asserted facts in issue for each charge in order to determine the probative force of the tendency evidence.

47 It is submitted that the formulation of the tendency in this case, namely that the accused lured potential victims to 29 Wilson Street Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knife point, is expressed at a level of generality. But, it is argued, the specific factual basis underpinning the physical interaction the subject matter of each charge is not embraced by the terms of the asserted tendency. When those specific facts are compared with the asserted tendency, it is submitted that the tendency evidence lacks significant probative value.

48 With respect to the charge of statutory murder, it is argued that this charge alleges 'an armed robbery, in company, by agreement, involving the application of actual physical force, stabbing, by both accused at 29 Wilson Street'. It is said that the tendency arising from the earlier armed robbery on Mr Fedele is one to commit an offence, acting alone and without actual physical violence. A tendency to commit an armed robbery alone is not significantly probative of an intention to form an agreement with someone else to commit an armed robbery. The differences in the execution of the offence are said to result in the tendency evidence not being able to meet the threshold of significant probative value.

49 The defence referred to Rapson v The Queen[9] by way of analogy. In that matter distinct differences in the gravity of sexual misconduct between allegations of some eight complainants and in the qualitative character of the surrounding circumstances was of insufficient similarity to render the evidence of two complainants cross-admissible with respect to the other six.[10]

50 In oral submissions, counsel for the accused submitted that it was the physical acts underpinning each of the two charges that the prosecution relied upon as being cross-admissible and emphasised the differences in the conduct alleged against the accused as between the two incidents as follows:

(i) the accused had not produced a knife at the time a demand was made for drugs during the 30 April incident, whereas it had been on 23 April;[11]

(ii) the offending alleged on 30 April was done in company, that on 23 April was done alone;

(iii) the offending alleged on 30 April was done pursuant to agreement, that on 23 April was not; and

(iv) there was a preparedness to inflict actual physical violence on 30 April, whereas no actual physical violence was done on 23 April.

51 Counsel emphasised her argument that the tendency of an individual to act on one occasion cannot inform the way two people were going to act, by agreement, on another. In short, she submitted that the tendency of the accused cannot be 'split' to show the intention of Coghlan.

52 With respect to the charge of armed robbery where the issue is identity, the defence submits that the admission of the accused's tendency to act in a certain way requires circular, impermissible bootstraps reasoning. Two instances of conduct with significant factual differences are said to be insufficient to demonstrate a pattern of conduct.

53 The defence further submits that if the court is satisfied that the evidence does have significant probative value, it should be excluded because it does not substantially outweigh the prejudicial effect to the accused. It is argued that the jury may place too great a weight on the evidence of the armed robbery to reason that the accused intended to commit the statutory murder, including the unintended aspect of the death of Mr Repia. Directions about the issue are said to entail the risk of highlighting the impermissible use of the evidence and thereby increase the likelihood of its misuse.

54 An analysis of the two separate but interrelated matters delineated in Hughes reveals that the tendency evidence in this case is of significant probative value.

The extent to which the evidence proves the alleged tendency

55 It is to be remembered that the tendency relied upon is a tendency of the accused to act in a particular way, namely to lure potential victims to 29 Wilson Street Berwick, by communicating with them as if he was a woman looking to engage in a sexual encounter and obtain drugs, for the purpose of robbing them of drugs at knife point.

56 The tendency is not expressed to be merely the mode of executing an armed robbery after the victims attended at 29 Wilson Street, but the entire circumstances, including the method by and the purpose for which they were so lured.

57 As outlined above, the evidence overwhelmingly proves that tendency. Two phones registered to the accused were used by 'Nikki' to contact Mr Fedele and Mr Repia. Mr Repia's phone had the accused's 891 number saved as 'Nikki'. The text conversations between Nikki and both victims concerned the purchase of drugs and sexual innuendo. Some of those conversations occurred simultaneously. Both victims were told by Nikki to come to the same address and at night. Both victims were told at the last that Nikki lived in a complex for women who had been subject to domestic violence, and directed to park and to come to the front doors where she would 'buzz' them in. When each of the men duly arrived, each was the victim of an armed robbery at knife point.

The extent to which the alleged tendency makes the facts in issue more likely

58 With respect to charge one, the accused denies he executed the armed robbery on Mr Fedele. He denies sending the text messages using his 891 telephone service to Mr Fedele. The issue in dispute is identity. Given that the accused admits sending the text messages using that 891 telephone service (as well as his 385 service) to Mr Repia, the evidence that the accused, as Nikki, sent very similar text messages to Mr Repia which culminated in an arrangement to meet at 29 Wilson Street at night, as were sent to Mr Fedele, makes it more likely the accused sent the text messages to Mr Fedele. That in turn makes it more likely that it was the accused who then was waiting at 29 Wilson Street armed with a knife to rob Mr Fedele, as he was present, armed with a knife one week later, to rob Mr Repia.

59 Defence counsel submitted that even if the accused sent the text messages to Mr Fedele, that does not establish that it was the accused who committed the armed robbery upon him. But, the question is whether the alleged tendency makes the fact in issue - identity - more likely. That the accused has, on an occasion a week later engaged in strikingly similar conduct to lure a person to a location where the accused (with another) is armed with a knife and a demand is made for drugs does render it more likely that the accused was the person who robbed Mr Fedele at knife point. In my view, given the issue is identity, there is a 'close similarity between the conduct evidencing the tendency and the offence'. [12]

60 With respect to charge 2, the accused admits sending the text messages to Mr Repia and, given the evidence, including the CCTV footage, cannot deny his presence with Coghlan at the nominated location where both are armed with knives. That the accused had, a week prior, used the same technique to lure another man for the purpose of robbing him of drugs at knife point, and who was then robbed of drugs at knife point, makes it more likely that the accused intended to demand drugs at knife point from Mr Repia.

61 That the accused was in company with Coghlan is immaterial. Relying upon s 232(1)(c) in combination with s 3A of the Crimes Act, the prosecution must prove, amongst other elements, that the accused and Coghlan entered into an agreement, arrangement or understanding to commit the offence of armed robbery (which may be inferred from the surrounding circumstances) and that the accused had the state of mind required for the commission of armed robbery at the time of entering into the agreement.

62 It is not necessary for the prosecution to prove any state of mind of Coghlan.

63 The tendency to act in a particular way as demonstrated with respect to Mr Fedele does make it more likely that the accused had the state of mind required for the commission of armed robbery at the time his agreement with Coghlan was formed. His previous conduct with Mr Fedele makes it more likely that he intended that, together with Coghlan, his conduct, including being armed with a knife, would put Mr Repia, whom he lured to the location, in fear that he would, then and there, be subject to the use of force while the accused (with Coghlan) stole drugs.

64 The differences between the conduct in the execution of the offences emphasised by defence counsel does not change that. The tendency to act in a particular way can be found in the circumstances surrounding the offending as well as in the manner of the offending itself. It is all a question of fact and degree.

65 Wherever the evidence of Ms Meakins falls at trial, it is readily open for the jury to conclude from the CCTV footage in the context of all the evidence that a demand for drugs was made while both the accused and Coghlan were armed with knives. A slight difference in the sequence of execution of the armed robbery as to, for example, exactly when the demand for drugs was made does not impact upon the tendency as articulated by the prosecution that the accused acted in the particular way asserted, namely for the purpose of robbing victims of drugs at knife point.

66 Similarly, that actual physical violence was done to Mr Repia but not to Mr Fedele does not affect the tendency to act in the way asserted. It was an act done subsequent to the intention to commit armed robbery with Coghlan manifested. It is to be remembered that the act of violence causing Mr Repia's death must be proven to have been done in furtherance of a violent crime, but not with murderous intent. As submitted by the senior prosecutor, a threat made with a knife encompasses the possibility that it will be used if the demand is not met. Mr Fedele handed drugs to his assailant. Mr Repia did not.

67 And, the fact that the armed robbery upon Mr Repia was committed in company and by agreement is not of significance to the asserted tendency to lure potential victims in the manner and to the place described for the purpose of robbing them of drugs at knife point. The asserted tendency of the accused is not to execute armed robberies in a particular fashion, but to create the opportunity to commit them in a particular way.

68 Moreover, as the plurality said in Hughes, tendency evidence is not confined to performing a particular act:

Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. Velkoski is illustrative.[13]

69 Thus, in multiple complainant cases concerning indecent assault for example, it is not necessary that the indecent assaults are carried out in the same manner or sequence for the evidence to be cross admissible to show an sexual interest in young children in the specified circumstances.

70 To the extent that defence counsel sought to rely upon Rapson, that decision expressly applied Velkoski. The High Court Hughes termed the Velkoski approach 'unduly restrictive'.[14] In Rapson, the Crown conceded in the wake of Velkoski that as between the charges of penile-anal rape and those of indecent assault, there was insufficient commonality in either the nature of the sexual misconduct or the surrounding circumstances to give the evidence significant probative value. The Crown also conceded that the probative value of the evidence could not outweigh the high risk of improper or impermissible use of the tendency evidence.

71 It is not necessary to consider whether such a concession would still be made. In any event, Rapson is not authority for the proposition that even pre-Hughes, differences in the gravity of (sexual) offending in multiple complainant cases precludes cross-admissibility of evidence. Indeed their Honours referred to WEA v The Queen[15] in which despite such difference, there were sufficient similarities between the circumstances of the offending and the offending itself to make the evidence cross-admissible. It is all a question of fact and degree.

72 If the asserted tendency in this case was not so particular, there may be some force in the submission of defence counsel that it is not open to use a single instance of the accused's conduct (that in relation to charge 2) as demonstrative of a pattern in order to invoke tendency reasoning. However, the evidence shows such a striking similarity in the conduct of the accused, that a jury could infer the tendency of the accused to act in the particular way asserted from the evidence. It follows that I reject the argument that the use of tendency evidence in this case will involve circular or bootstraps reasoning.

73 Accordingly, given the degree of specificity of the conduct, the similarity of the conduct on each occasion and the close temporal and geographic connection between them, I am of the view that the tendency evidence in this matter is not merely relevant, but is of significant probative value. That is, the evidence with respect to charge 2 is significantly probative as to the issue of identity in charge 1, and the evidence with respect to charge 1 is significantly probative of the intention of the accused to commit armed robbery, by agreement, arrangement or understanding with Coghlan, with respect to charge 2.

74 I am also of the view that the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the accused. The evidence is significantly probative. That does not make it impermissibly prejudicial.

75 I do not accept that the tendency asserted is of such generality that it will encourage the jury to engage in impermissible reasoning, nor that directions warning the jury against such reasoning would highlight the risk and therefore tempt the jury to act contrary to such directions.

76 Accordingly, the prosecution will be permitted to lead the tendency evidence as detailed in its amended s 97(1)(a) Evidence Act Notice.

[1] Pursuant to ss 75A, 3A(1) and 18 of the Crimes Act 1958 (Vic) ('Crimes Act'), respectively.

[2] Mr Coghlan pleaded guilty to murder - see R v Coghlan [2019] VSC 543 (Tinney J). He is not a prosecution witness.

[3] The defence seek exclusion of the evidence of the photo board identification pursuant to the Evidence Act, s 137. See R v Treasure (Ruling No 2) [2019] VSC 583.

[4] [2017] HCA 20; (2017) 263 CLR 338 ('Hughes').

[9] [2014] VSCA 216; (2014) 45 VR 103 ('Rapson')

[10] It is of some significance that Rapson applied Velkoski v The Queen [2014] VSCA 121; (2014) 45 VR 680 ('Velkoski'), which was expressly overruled in Hughes.

[11] This submission was based on the evidence of Ms Meakins under cross-examination at committal.

[15] Unreported, Court of Appeal, Whelan and Coghlan JJA, 22 February 2013.