Pearson (a Pseudonym) v The Queen [2016] VSCA 341

1 On 29 September 2016, his Honour Judge Chettle determined to admit coincidence evidence on the trial of the applicant for one charge of armed robbery and one of false imprisonment.

2 The Prosecution proposes to call evidence from a co-offender, DW, not only with respect to the facts founding the offences charged, but also as to the commission jointly by the applicant and DW of offences committed in similar circumstances some months earlier.

3 The applicant seeks leave to appeal the decision to admit evidence concerning the prior offending as coincidence evidence.

4 For the reasons which follow, leave to appeal should be refused.

5 Section 98 of the Evidence Act 2008 ('Evidence Act') provides:

(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.

Note

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1)(a) does not apply if -

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note

Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

6 There are seven aspects of this provision which should be noted:

(a) the probative effect of the evidence contemplated by the section derives from the improbability that two or more given events occurred coincidentally;

(b) unlike tendency evidence, coincidence evidence does not bear directly on a person's character or reputation.[2] It links a person to a particular pattern of behaviour or circumstances bearing on the probability of the occurrence of a particular event;

(c) the similarity between the two or more events in issue may derive from the events themselves and/or the circumstances in which they occurred;

(d) before the evidence can be admitted on behalf of the prosecution, reasonable notice of the intention to do so must be given;

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;[3]

(f) the Court must be satisfied that the evidence has significant probative value;

(g) as the High Court has said in IMM v The Queen:

The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.[4]

(h) in order to be of significant probative value, evidence must be influential in the context of fact-finding.[5]

7 Section 101 of the Evidence Act further provides:

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the accused.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the accused.

8 Subsection 2 requires a balancing exercise turning on the particular facts of the case between the probative value of the evidence and the actual prejudice which it may cause.[6]

9 The Prosecution case is that, on 7 October 2012, the applicant and DW committed the offences of armed robbery and false imprisonment on the victim, SA.

10 The trial judge summarised the facts as follows:

On 7 October 2012 at about 9:50 pm, [SA] then 57 years of age, left the Braybrook TAB where she worked. She was the last to leave. She walked to her car, parked in a nearby car park.

When she reached it and opened the door, a man with a gun accosted her and forced her into the vehicle. His face was covered and he was described as being about six foot tall.

It's the prosecution case that this is the [applicant].

A second man entered the car. He was shorter than the first man. He was also disguised. [SA] was then forced to provide the tall man with the TAB keys and the alarm code. He went to disarm the TAB alarm but returned and claimed that he had been given the incorrect access code. [SA] was then directed to the TAB where all three entered after [SA] disabled the alarm. She was told to open the safe and the time delay of 15 minutes elapsed while the robbers waited. [SA] was then told to ensure she turned the key, 'The correct way'.

The safe was opened and $76,000 taken and put into garbage bags. The CCTV recording hard drive was removed and taken. The robbers threatened to tie [SA] up with tape and told her to wait five minutes before calling police, then left over a rear fence.

The robbers went to the Hallam area where their clothing, the CCTV hard drive and the firearm were burnt. Subsequently the charred remains were thrown into scrub near Centre Road, Hallam. These remains were located by the police on 29 November 2014.[7]

11 DW will give evidence that the above events occurred and that he was the shorter armed robber and the applicant was the taller armed robber of the Braybrook TAB. The prosecution will also rely on evidence of text messages passing between the applicant and DW prior to the offending; the finding of the burnt materials approximately one kilometre from the applicant's business premises at the location identified by DW; and call charge records showing the applicant and DW in the hours after the offending located in the same area where the burnt materials were found.

12 It is proposed that DW will also give evidence of another armed robbery which, he will say, was conducted by the applicant, together with DW, at the Mentone TAB some months earlier.

13 In addition to DW's evidence that the applicant committed the earlier robbery with him, DNA evidence implicates the applicant in that earlier robbery and there is independent evidence of an admission by the applicant of participation in that robbery.

14 The evidence from DW concerning the earlier robbery will be that, on 23 June 2012, the applicant and DW went to the TAB in Mentone at about midnight. The victim, an older female employee, had shut the TAB and was walking to her car in the carpark when she was confronted by the applicant and DW. They had a silver pick. They were disguised: wearing balaclavas and gloves. The victim was made to re-open the TAB. All three went inside. The victim, using a code, disabled the safe alarm which was on 15 minute delay. The victim had to wait the 15 minutes with the applicant and DW and then a further 15 minutes when the time delay was accidentally re-set. The CCTV system was deliberately damaged, but footage was nevertheless obtained. Cash in the sum of $70,000 was stolen. The applicant and DW returned to the applicant's workplace and burnt their clothing and other items connected with the robbery.

15 We interpolate that the applicant was convicted by a jury on 14 October 2014 of the armed robbery and false imprisonment of the victim at Mentone.

16 The prosecution has prepared a written list of similarities between the two armed robberies which is as follows:

1. The victims and circumstances - female attendant leaving work at night time on her own accosted by two offenders;
2. The location in which the victim was accosted - the car park directly outside the TAB with the offenders lying in wait;
3. Weapons used - Mentone a silver crowbar pick; Braybrook an imitation pistol;

5. The attendant was forced back inside the premises in each case;

6. In each case the attendant was forced to shut down the alarms;

1. The offenders - in each case one taller offender and a shorter stockier second male which fits the relative heights and builds of [DW] and the [applicant];
2. Roles - in each case the taller male the prosecution alleges is the [applicant] took the lead role in the offending;

9. In each case the taller offender directed the attendant to open the safe;

1. In the Mentone offence the safe was a 15 minute time delay safe and the group waited for 15 minutes; in the Braybrook offence the taller man said to the attendant, 'It's a 15 minute safe yeah?' indicating knowledge of how the TAB safe worked and then the group waited 15 minutes together for the safe to open ;
2. In the Mentone offence the taller male told the attendant he would tie her up with tape because they needed 5 minutes to make a getaway; in the Braybrook offence the taller male told the attendant that when they left she had to give them 5 minutes otherwise he would tape her up;
3. In the Mentone offence the taller male attempted to destroy the hard drive for the CCTV footage (ultimately unsuccessfully); in the Braybrook offence the taller male asked about the video equipment and told the attendant he had to destroy it. He then tried to destroy the hard drive for the footage but took it with him when he left;
4. On [DW's] evidence in each case clothing and items connected to the Armed Robbery were burnt in a metal drum. In the Braybrook offence this was confirmed when [DW] directed police to the charred items which had been thrown away at a location not far from [the applicant's] work address.

17 In his Reasons, the trial judge first analysed the prosecution case as to the similarity between the two alleged events.

18 He then summarised the relevant statutory framework.

19 He went on to summarise the submissions made on behalf of the applicant as to differences between the two events, and as to the unfair prejudice which it was submitted the admission of the evidence would cause.

In my view, the evidence proposed to be adduced should be admitted as coincidence evidence. I will not allow it to be used as tendency evidence.

In my view, the disputed evidence makes more likely to a significant extent the evidence pointing to the defendant's involvement in the charged offence, the Braybrook TAB armed robbery.

The jury could well be satisfied beyond reasonable doubt that [the applicant] and [DW] carried out the Mentone offending. The jury could also be satisfied that there is unity of evidence or indeed, striking similarity between the two offences and could conclude that the same offenders committed both offences. Although features of striking similarity, underlying unity, pattern, signature or system need not be present as a precondition for the admissibility of coincidence evidence, in my view, the similarity in offending in both offences do, in fact, demonstrate such features.

This coincidence evidence is not viewed in a vacuum. Section 98 of the Evidence Act 2008 requires this court to consider or have regard to other evidence in the case and determine whether the disputed evidence has significant probative value. The other evidence in this case includes the evidence of [DW] as to the [the applicant's] involvement in both robberies and the telephone evidence that links the defendant to [DW] shortly prior to, or at the time of the Braybrook armed robbery.

The disputed evidence also provides strong support for [DW's] evidence about [the applicant's] involvement in Braybrook. It bears directly upon the credibility of [DW]'s evidence.

...

I am of the view that the probative value of the evidence relating to the Mentone armed robbery substantially outweighs the risk of prejudice to the [applicant]. I will give the jury careful and comprehensive directions as to the use they can make and the use they cannot make of such evidence. Those directions will be discussed with counsel subsequently. I will direct the jury that unless they are satisfied beyond reasonable doubt that [the applicant] participated in the Mentone armed robbery and that they are satisfied beyond reasonable doubt that the common features allege[d] lead them to conclude that the same people committed both offences, they cannot use the Mentone evidence at all in considering the Braybrook offence.

Obviously, a strong anti-propensity warning will be given to the jury and a non-substitution warning.

I accept that the matters listed by Mr Doyle in Exhibit A satisfy the requisite test for admissibility as coincidence evidence. Those matters in combination, and having regard to the other evidence in the case, render it more likely, in my view, that the accused committed the armed robbery in Braybrook.

The nature of the venue, the circumstances and timing of the armed robberies, the method of accosting the victims, the dealing with the TAB alarms and safe, the physical characteristics of the two offenders in each case and the roles of each, the threats to tie the attendant with tape, the demand in each case for five minutes getaway time and the involvement with the CCTV hard drive in both offences would, in this view, enable a jury to conclude that the same persons carried out each armed robbery.

The DNA evidence and admission connect the defendant to Mentone and thus connect him to the Braybrook armed robbery. The rest of the prosecution evidence supports that conclusion.[8]

21 His Honour further elaborated these conclusions by reference to relevant authority.

22 We note in passing that although the trial judge observed that the coincidence evidence would support the credibility of DW's evidence, his Honour's central evidentiary conclusion was that the two armed robberies were strikingly similar and that, having regard to the other evidence to be adduced, the coincidence evidence would have significant probative value.

23 The applicant applies for leave to appeal on the following ground:

Ground 1 - The Learned Trial Judge erred in finding that the probative value of the evidence to be adduced as coincidence evidence substantially outweighed its prejudicial effect.

24 Both before the trial judge and on application to this Court, the applicant submitted that the evidence did not demonstrate similarities between the two armed robberies sufficient to properly found coincidence reasoning bearing on the applicant's involvement in the second armed robbery. In particular, it was submitted:

(a) that a number of features identified by the prosecution were 'stock in trade' for armed robberies and unremarkable or common in the context of such offending. In particular, it was submitted that the following aspects of the evidence were unremarkable, namely the fact the offenders were armed; wearing disguises; committed the offence immediately after the venue had closed; confronted a staff member as he/she exited the premises; forced the staff member to disable alarms and open a safe; threatened to bind the staff member; and disposed of items connected with the offending;

(b) that there were significant differences of detail between the two robberies relating to:

a. the weapons used by the offenders;

b. the mode of entry and confrontation of the victim;

c. the situation and exposure of the venues;

d. the distance in time and place between the two offences;

1. the demeanour and conduct of the offender alleged to be the Applicant at each venue;

f. the form of interference with computer/video equipment;

g. the mode of exit from the venue;

h. the use of a name during the Braybrook offence.

(c) that some elements of the second armed robbery, which were characterised by the prosecution as a progression or logical development of elements of the first armed robbery, could not properly be regarded as coincidental, eg, different steps taken with regard to the CCTV within the TAB;

(d) that features arising from the setting in which the offending occurred which were not in the control of the offenders could not be regarded as distinctive of a particular offender. In particular, it was submitted that the gender of the staff member closing the venue and the presence of a time-delayed safe at the venue could not be regarded as relevantly coincidental.

25 In our view, each of the above submissions seeks impermissibly to disaggregate particular elements of the circumstantial case relating to coincidence. The question is not whether particular elements of the circumstances themselves demonstrate a probative similarity but whether the circumstances as a whole do so. The combination of circumstances may allow an inference to be drawn where consideration of a particular circumstance in isolation would not. Moreover, as the trial judge held, the combined effect of the coincidence evidence must be assessed in the light of the evidence upon which the prosecution relies as a whole. That evidence will include the evidence of the victim and the evidence as to the finding of items allegedly used in the robbery at the location identified by DW.

26 The classic statement of the relevant principles remains that of Gibbs CJ and Mason J in Chamberlain v The Queen [No 2]:[9]

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together'.[10]

27 In Tognolini v The Queen, Nettle JA said of the admissibility of similar fact evidence (as distinct from evidence sought to be admitted pursuant to s 98 of the Evidence Act):[11]

Ultimately, the question is not whether the means of commission of the crime is in each case the same or strikingly similar but whether the evidence sought to be admitted 'is cogent enough to be admitted as proof of identification of this offender'.[12] Logically, that depends upon all the evidence in the case[13] and whether, when the putative similar fact evidence is considered in the context of all the evidence, its probative value sufficiently outweighs any prejudicial effect as to render its admission just.[14]

28 The same evidentiary principles apply to the application of the statutory test in the present case.

29 In our view, it was plainly open to the trial judge to conclude that the evidence relating to the armed robbery at the Mentone TAB could be regarded by the jury as highly probative of the applicant's involvement in the offending now charged. It provided a body of evidence which was capable of interacting with the other evidence to identify the applicant.

30 In so concluding, we accept that, as counsel for the applicant submitted, evidence of identity raises issues of particular sensitivity. But this is not a visual identification case[15] which raises the logical problem that two defective or unsatisfactory identifications do not necessarily support each other.[16] Rather, it is a case where it will be open to the jury to conclude that the coincidence of the evidence relating to the two robberies would be unlikely if the applicant were not one of the joint perpetrators of both.

31 Ultimately, the question whether the evidence is of significant probative value is one of fact and degree turning on the particular circumstances of the case.[17] We see no error in the trial judge's approach or conclusion with respect to the facts of this case.

32 For completeness, we would add that, while some of the similarities upon which the prosecution relies might be regarded as no more than contextual or subsidiary, the evidence as a whole demonstrates very substantial similarity of circumstances and behaviour on each of the occasions relied upon.

33 Further, the presence of generic elements of armed robberies in each instance is hardly surprising. Their presence was essential to the overall pattern of coincidence (although in themselves they would not establish it). We do not accept that this is a case like R v Milenkovic,[18] in which there was little but generic similarities relied upon. Similarities 7, 8, 9, 10, 11, 12 and 13, identified above in the prosecution list, are in combination capable of being regarded as very particular.

34 The similarities relied on by the prosecution went to specific features of behaviour and not simply the repetition of the essential elements of the offence.

35 Conversely, the detailed dissimilarities, asserted by the applicant, are not, in our view, materially inconsistent with a conclusion that the overall similarity relied upon by the prosecution can be relied on if the evidence is taken at its highest from the prosecution's point of view.

36 Those dissimilarities might properly be the subject of submission to the jury.

37 Likewise, elements of the offender's behaviour which might be regarded as involving a progression in response to a similar context, whilst not capable in themselves of founding a conclusion of direct similarity, do not involve dissimilarity standing in the way of the trial judge's overall conclusion.

38 We also reject the submission that circumstances beyond the offender's control should, in this case, be regarded as entirely irrelevant.[19] On each occasion, the offenders took advantage of a lone female staff member leaving the TAB premises. And, on each occasion, the offenders imprisoned the staff member in order to ensure that the time delay mechanism on the safe could be accommodated. On each occasion there was a series of interrelated directly comparable circumstances involved in the offending. The prosecution case is not focussed upon elements which were beyond the offender's control, but upon the manner in which the applicant responded to, and took advantage of, those elements.

39 It follows that it was open to the trial judge to conclude that the requirements of s 98 were satisfied. It was also open to him to conclude that, subject to the exclusion of evidence of the applicant's prior conviction and to the giving of proper directions to the jury, the probative value of the evidence in this particular case would substantially outweigh any prejudicial effect.

40 It is true that evidence of the kind here in issue is inherently prejudicial.[20] There is an obvious risk that the jury will engage in simplistic propensity reasoning and/or substitution of evidence relating to the first offences for that relating to the second offences. Nevertheless, the danger of unfair prejudice fell to be assessed against the whole of the evidence[21] and the measures available to address such prejudice. The trial judge acknowledged the potential for unfair prejudice and correctly identified the need for it to be directly addressed in the course of the trial. Having reached the conclusion that potential prejudice to the applicant could be squarely addressed by appropriate measures at trial, it was, in turn, open to the judge to conclude that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused.

41 We are not persuaded that the trial judge erred either in his approach to s 98 or s 101.

42 The application for leave to appeal should be refused.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Cf Evidence Act 2008 s 97

[3] Evidence Act 2008 Dictionary pt 1 (definition of 'probative value').

[4] [2016] HCA 14; (2016) 90 ALJR 529, 538 [44].

[6] R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, 718 [94]-[95].

[7] Revised transcript of ruling of Judge Chettle (29 November 2016), 149-50 ('Reasons').

[9] [1984] HCA 7; (1984) 153 CLR 521, 535-6 (citation in original).

[10] Belhaven and Stenton Peerage (1875) 1 App Cas 278, 279 (Lord Cairns), cited in R v Van Beelen (1973) 4 SASR 353, 373; and see Thomas v The Queen [1972] NZLR 34, 37-8, 40 and cases there cited.

[11] [2011] VSCA 394 [6] (citations in original).

[12] R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384, 388 [19] (McMurdo P).

[13] R v Mansfield [1977] 1 WLR 1102, 1105; Heydon, Cross on Evidence, Australian Edition, [21175].

[14] R v Best [1998] 4 VR 603, 612 (Callaway JA); R v Dupas [No 2] [2005] VSCA 212; [2005] 12 VR 601, 611 [26]-[29] (Warren CJ).

[15] As to which see pt 3.9 of the Evidence Act 2008.

[16] Cf R v Burchielli [1981] VicRp 61; [1981] VR 611.

[17] See, eg, Hashi v The Queen [2016] VSCA 288 [39]-[40] (Beale AJA, with whom Ashley and Ferguson JJA agreed).

[18] [2005] NSWCCA 379; (2005) 158 A Crim R 4.

[19] Cf PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146, 150 [14], 151 [20] (Maxwell P, Buchanan and Bongiorno JJA); doubted in RHB v The Queen [2011] VSCA 295 [17] (Nettle JA, with whom Harper JA agreed) and further discussed in Velkoski v The Queen (2014) 45 VR 680, 705 [110] ff.

[20] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 418 [25] (Winneke P); R v Dupas [No 2] [2005] VSCA 212; (2005) 12 VR 601.

[21] Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170, 186 [30] (French CJ, Hayne, Crennan and Bell JJ).