R v Coskun

Proposed tendency evidence

1. The accused does not dispute that he went to the Odisho home in the early hours of the morning of 2 April 2019 and that at the time he was wearing a high visibility yellow short-sleeved shirt over the top of a black jumper.
2. There is also evidence that the accused sent a WhatsApp message to a person alleged to be the other intruder less than three hours before the intrusion saying "Bring hi viz … Work Shirts … Two".
3. The tendency evidence concerns the accused wearing high visibility shirts when he committed three armed robberies in 2013. He pleaded guilty and a statement of agreed facts was tendered in the sentencing proceedings. On 19 December 2014 in the District Court at Parramatta, he was imprisoned for 5 years with a with a non-parole period of 3 years dating from 9 January 2014.
4. The Crown summarised the proposed tendency evidence as follows: [5] "Between 3 May 2013 and 19 September 2013, the accused committed six armed robberies on Subway restaurants in Western Sydney. On each occasion the accused was armed with a knife, not a firearm. He pleaded guilty to four armed robbery offences and signed an agreed statement of facts with two further offences taken into account on a Form 1. In relation to three of these robberies on three separate days, on 3 May 2013, 16 September 2013, and 19 September 2013 the accused was wearing a high visibility t-shirt over a hooded jumper and a cap. Although he did not wear high visibility clothing for the other three robberies, it is submitted that he had no reason (for example by way of employment (see ERISP Q/A 53-55)) to be wearing high visibility clothing. Rather, this appeared to be part of his modus operandi and clothing he had deliberately chosen to wear for this purpose. The accused acknowledged that the clothing did not belong to him but to his brother (ERISP Q/A 46 as summarised in the Agreed Facts at [51]) and as such was not wearing clothing that belonged to him."
5. The Crown intends to adduce evidence of that part of the agreed facts document that refers to the three robberies during which the accused was wearing a high visibility shirt. [6] The account of those robberies includes the following: "Seq 001 - 3 May 2013 Subway Auburn (Form 1) … The offender was wearing a coloured scarf around his mouth and nose, a high visibility shirt, a dark hooded jumper, shorts and white shoes." "Seq 005 - 16 September 2013 - Subway Gladesville … The offender was wearing a white coloured hooded jumper with the hood over his head, an orange and dark blue coloured high visibility shirt on top of the hooded jumper, grey coloured shorts and white sports shoes with a black coloured design on the side." "Seq 006 - 19 September 2013 - Subway Bass Hill … The offender was wearing a white coloured hooded jumper with the hood over his head, an orange and dark blue coloured high visibility shirt on top of the hooded jumper, bone coloured cargo shorts, a black baseball cap and white sports shoes."
6. The Crown indicated that it would tender the entire statement of Agreed Facts if the defence requested. It objected to a defence proposal that evidence of a lengthy police interview on the day of the accused's arrest on 9 October 2013 be tendered. [7] It is unnecessary to go into the bases of the objection because the admissibility of the interview is not for determination at this point.

Relevant Law

1. In addition to the basic prerequisite of relevance, the requirements of the Evidence Act 1995 (NSW), ss 97(1) and 101(2), are that the evidence have significant probative value and that its probative value outweigh the danger of unfair prejudice to the accused.
2. There is a wealth of case law in which the construction of these provisions and their application have been discussed. The authorities are well known and include IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20; The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; and McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52. The principles were helpfully summarised by Bell P in Taylor v R [2020] NSWCCA 355 at [122].

Significant probative value?

1. The Crown submitted the following as to the significance of the accused wearing a high visibility shirt when intending to commit a robbery on 2 April 2019: [8] "Whilst it may appear counter intuitive to wear a high visibility shirt to commit an armed robbery, the Crown contends that the wearing of a high visibility shirt displayed a tendency on the part of the accused to wear such items of clothing when committing a robbery offence. The Crown submits that the accused's state of mind was to wear the high visibility shirt so as not raise suspicion if he and his co-accused were seen in the early hours of the morning standing outside the apartment complex. By wearing the high visibility shirt, it is submitted that it would assist the accused carry out the offence as a passer-by might think the accused was a construction worker, council worker, uber delivery driver such that no notice would be taken of him before or after the robbery. The Crown submits the fact that the accused deliberately sought out the high visibility shirt two and a half hours before the attempted robbery and wore this shirt at the time of the attempted robbery goes to his state of mind, and the probability of a fact in issue, namely his intention to commit a robbery at that premises."
2. In addition to the case theory about the wearing of a high visibility shirt assisting the accused by it making him appear to have a legitimate purpose in being in where he was, the Crown emphasised in oral submissions that he made a specific request for such a shirt, indicating he must have thought that it would assist him in carrying out the offence. [9]
3. The Crown made the following submissions as to the evidence of the accused previously having worn high visibility shirts when committing robberies having significant probative value: [10] "The Crown submits that the evidence that the accused has previously chosen to wear high visibility clothing when committing an armed robbery, has significant probative value when considering the facts in issue in this case, and the likely narrow issue at trial, - namely whether the accused was present for the purpose of committing a robbery; and whether he was armed with a dangerous weapon or knew that one was to be used in the commission of the offence. Although there is no other similarity in the offending (use of knife versus gun); (residential as opposed to robbery of commercial premises) (and no correlation as to the time of day); it is the fact that the accused went out of his way to obtain the particular kind of shirt (regarding planning), and wore it, that gives the link between the alleged offence and prior conduct which bears on whether the accused had the tendency to have the relevant state of mind to commit a robbery. It is submitted that this tendency evidence has the capacity to affect the assessment of the probability of a fact in issue (whether the accused was present to commit a robbery on this occasion) to a significant extent."
4. In relation to the 2013 offences, the Crown suggested that wearing a high-visibility shirt might have assisted the accused by appearing as though he had been working, when standing outside a shop at night. (The three offences were committed at suburban Subway outlets at 7.35pm in May and at 5.10pm and 6.20pm in September.) The Crown further suggested that by wearing the shirt over the top of a jumper it could be quickly removed after the robbery, enabling the accused to transform from being noticeable in bright clothing to being unremarkable and blending in with neutral or dark clothing. [11]
5. The Crown contends that the evidence is relevant to facts in issue, namely: [12]

• Whether the accused planned to attend the Odisho home for the purpose of committing a robbery.
• Whether the accused intended to commit a robbery at the time he requested the high vis shirt.
• Whether the accused had the intention to commit a robbery at the time the events were unfolding in the unit.

1. The robbery aspect is important in the Crown case because it alleges liability of the accused for constructive murder; the act causing death occurred during an attempt to commit a crime punishable by imprisonment for at least 25 years: Crimes Act 1900 (NSW), s 18(1)(a). The Crown contends the accused attempted to commit an offence of robbery whilst armed with a dangerous weapon, a crime punishable under s 97(2) of the Crimes Act by imprisonment for 25 years.
2. The Crown acknowledges that there are dissimilarities between the armed robberies in 2013 and the alleged attempted robbery at the Odisho home in 2019. But where identity of the accused is not sought to be proved by the tendency evidence, the lack of close similarity may not be significant: Hughes v The Queen at [39]. [13] In oral submissions, the Crown referred to the various differing features of the 2013 offences and that alleged in 2019, but described the wearing of high visibility clothing as "the one unifying feature" that supported the inference that when the accused sought the item he was preparing to commit a robbery offence. [14]
3. Rather than asserting various similarities in the robberies, the Crown relies upon it being unusual (although not necessarily unique) that a person would commit a robbery wearing a high visibility shirt where there was no legitimate reason to be wearing such clothing, and also where the person did not own the clothing. It was said that this demonstrated that the accused had a particular state of mind when he made the request for the high visibility shirts, namely that he was preparing and intending to commit a robbery and was specifically obtaining the shirts to assist in carrying it out. [15]
4. Section 97(1)(b) of the Evidence Act requires consideration of whether the proffered 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" (emphasis added). The Crown case on the question of whether the intruders intended a robbery is largely circumstantial. It contends that evidence of other circumstances from which an intention to commit a robbery may be inferred includes: [16] a) The intruders entered the first-floor apartment by climbing up to a balcony and entering via an unlocked security door at 3:40am. b) There were people present in the apartment. c) The intruders wore face coverings. d) The intruders were armed. e) The intruders forced entry into each of the two bedrooms. f) Larissa Mitchell-Wiszniekwski, who was in a bedroom with John Odisho, was woken by loud banging noises coming from within the apartment and heard Sargon Odisho yelling, "I don't know, I don't have anything". g) In the apartment at the time of the intrusion was 2kg of cocaine and a significant amount of cash.
5. It was submitted that the tendency evidence would provide the Crown with an additional circumstance that would strengthen its circumstantial evidence case on this issue. [17]
6. The Crown also submitted there was no diminution of the probative value of the evidence because of the gap in time between the events of 2013 and that in 2019. The accused was in custody serving a sentence for the 2013 armed robberies, and for earlier unrelated offending, from 9 October 2013, the date he was arrested for those robberies. His non-parole period for the armed robberies expired on 8 January 2017 and the total term expired on 8 January 2019. The Crown did not have evidence as to when the accused was released; at a minimum the accused would not have had any opportunity to act on the asserted tendency until at least 8 January 2017. The Crown suggests it might be able to agree the bare fact that the accused was in custody from his arrest until whatever date upon which he was released, without providing detail of the sentence imposed. Absent this, the jury would in any event assume the accused was in custody for some period serving a sentence, given they would hear he was guilty of (at least) three serious offences. [18]

Basis of the objection to admissibility

1. Counsel for the accused objected to the evidence being admitted, first because it did not have significant probative value. Citing Hughes v The Queen at [41], it was submitted that the evidence did not strongly support proof of the asserted tendency, and the asserted tendency did not strongly support proof of a fact that makes up the offence(s) charged. [19]
2. Second, it was submitted the probative value was low and did not outweigh the "very real unfair prejudice" to the accused. [20]

Defence submissions as to significant probative value

1. Counsel for the accused highlighted the differences between the 2013 offending and what is alleged to have occurred in 2019. [21] There is no doubt about this; the Crown acknowledged it.
2. It was submitted there was no evidence that the wearing of high visibility clothing in 2013 was intended or planned by the accused to assist in committing armed robberies, or that it in fact assisted any more than any other piece of clothing he wore. At most, the wearing of such clothing was "general … and disordered … rather than planned, intentional and specific as in the current case". [22] The high visibility shirt was simply an item of clothing that belonged to another member of his family, was lying around the house, and was available for the accused to wear. In other words, there was no reason for him to wear that particular shirt, just as much as there was no particular reason he wore the other clothing and footwear. No pattern or modus operandi was disclosed. [23]
3. It was submitted that for these reasons, the evidence of the 2013 offences was not likely to be "influential", "sufficiently important" or "of consequence" in the jury's determination, citing IMM v The Queen at [46]. Referring to the seven circumstances in the Crown's circumstantial evidence case on robbery (see above at [22]), it was submitted that there is available already a significant amount of circumstantial and inferential reasoning on the issue. [24]
4. It was also submitted that any probative value the evidence did have was weakened by the gap in time between 2013 and 2019, reference being made to McPhillamy v The Queen where there was said to have been a time gap of 10 years which was found to be insufficiently probative for the evidence to be admitted. [25]

Determination as to significant probative value

1. Taking the evidence at its highest (IMM v The Queen at [44], [52]), it is capable of being regarded as providing strong proof of the accused having the tendency contended for by the Crown. The potential strength of the evidence lies in the wearing of a short sleeved high visibility shirt over the top of a long-sleeved hooded jumper being capable of being regarded by a jury as quite an unusual thing to do.
2. The fact the accused did not act in accordance with such a tendency in some of the robberies committed in 2013 could be insufficient to detract from the probative force of the fact that he did so in relation to three of them. The jury could regard it as significant that the high visibility shirt was worn by the accused in robberies on separate days, the latter two instances occurring some months after the first instance. This could also serve to dissuade the jury from accepting the alternative characterisation of the accused's choice of clothing being "disordered" and unplanned. Rather, and as the Crown submitted, this could be regarded as supporting the inference that wearing that particular item of clothing must have been of some importance to the accused. [26]
3. If the jury are persuaded that the accused had this tendency, the existence of the tendency could strongly support the inference that the accused's intention in attending the Odisho home in the early hours of 2 April 2019 was to commit a robbery. The replication by the accused of what the jury might regard as an unusual behaviour, done with deliberation and foresight, could well be regarded as indicating the accused was again reverting to an attribute of his robbery behaviour.
4. There are obviously a number of features of the 2013 robberies that are significantly different to the alleged attempted robbery in 2019 but that does not detract from the probative value of the evidence. The feature that is important and in common is the mindset of the accused choosing an item of attire when, on the Crown case, he is proposing to carry out a robbery.
5. The fact that there are a number of features of the evidence that the Crown can also rely upon to establish the inference of an intention to rob does not detract from the probative value of the tendency evidence either. While some of the features identified by the Crown might not be controversial, others are. Whether all or only some of the seven features are accepted remains an issue for the jury.
6. Finally, it would be open to the jury to regard the gap in time between 2013 and 2019 as being inconsequential having regard (a) to the significant part of that period in which the accused was incapacitated, and (b) the distinctive and unusual nature of the tendency. The analogy sought to be drawn with the facts in McPhillamy v The Queen is inapt.

Probative value balanced against danger of unfair prejudice

1. The Crown acknowledged the inevitable prejudice to the accused of evidence of previous offences. It submitted that the probative value outweighed this danger of prejudice for five reasons: [27] 1. The evidence was limited to prove the accused's intention to commit a robbery but was significant in relation to this primary and disputed issue. 2. Because the accused pleaded guilty and the facts were agreed, the evidence can be lead in a condensed fashion, thereby limiting any emotional response of the jury and reducing the time spent eliciting it, thereby not placing undue emphasis upon it. 3. The evidence arises from offences that are less serious than the one for which the accused is to stand trial. 4. The evidence spans a discrete period of time. 5. The use of the evidence in proving the accused's state of mind in the lead up to the unlawful entry to the apartment is specific and may be explained to the jury in a direction to ensure it is not taken into account for any impermissible purpose, including reasoning that the accused is a person of bad character.
2. The Crown referred to an observation made by Bell P in Taylor v R at 122 that, following the amendments made to s 101(2) in 2020, the height of the hurdle the Crown must overcome to secure the admission of tendency evidence had been lowered. Whereas previously it was necessary that "probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant" (emphasis added), it was now only necessary that the "probative value of the evidence outweighs the danger of unfair prejudice to the defendant". I am not sure that there will be a difference in most cases in the application of the newly expressed balance; but that is not an issue requiring resolution here.

Defence submissions as to s 101(2)

1. A number of matters were advanced in support of the submission that the probative value of the evidence did not outweigh the danger of unfair prejudice to the accused: [28] 1. The "significant" delay between 2013 and 2019. 2. The probative value of the asserted tendency was "very low". The evidence did not establish a tendency to act or to have any state of mind and thereby provided no support for the facts the Crown wishes to establish. 3. The prejudice would involve the Crown only relying upon three of the 2013 armed robberies whereas there were three others in which the accused did not wear high visibility clothing. This would place the accused in a difficult position of potentially having to require the tender of the Agreed Facts in respect of all six of the robberies. 4. The defence may also have to tender at least parts of the police interview to provide the context of the accused's opportunistic and sporadic use of the high visibility shirt and his drug addiction. This may disclose to the jury that the accused was addicted to ice in 2013.
2. These matters fell for assessment in the context of the jury otherwise being able to make their own findings about why the accused was asking for high visibility clothing. The evidence of the accused asking for high visibility clothing and wearing same at the time of the intrusion into the home of the deceased would not be robbed of its significance if the evidence of the 2013 robberies was excluded. [29]
3. It was also submitted that for almost negligible probative value, the accused would be placed in a position of significant prejudice in having to make the sorts of decisions outlined above in order to counter the Crown's contention. [30]

Determination of the s 101 issue

1. As Bell P explained in Taylor v R at 122, to the extent that the evidence carries prejudice to an accused, such prejudice is to be assessed on the basis that the jury will accept the evidence at its highest. As such, there is no justification for reassessment of the probative value of the evidence when carrying out the balancing task required by s 101(2). In applying this approach, I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.
2. The Crown submissions are correct in characterising the evidence as limited in time and subject matter such as to present a discrete topic about which it will be possible to direct the jury with clarity as to permissible and impermissible uses.
3. That consideration also applies in the event the accused wishes to have adduced the evidence of the other three armed robberies he committed in 2013.
4. The difficulty for the accused in electing whether to adduce that evidence and whether to adduce any of the content of the police interview of 9 October 2013 is acknowledged. These are not, however, matters that would potentially involve the accused having to make any additional disclosure of criminality that will be incapable of appropriate and fair assessment by the jury.
5. It was submitted that the Crown is able to make the same arguments about the accused wearing a high visibility shirt on the morning of 2 April 2019 without the evidence of the 2013 robberies. The point would have merit if the Crown was concerned with evidence to identify the accused as one of the intruders. Making a request a few hours before the event for high visibility shirts and then wearing one during the course of the incident would provide persuasive proof that he was an intruder if that was the issue in dispute. However, the issue that is in dispute, and is the purpose of the Crown adducing the tendency evidence, is quite different; it is whether the accused was intending a robbery at the Odisho home. The wearing of a high visibility shirt in 2013 has significance in relation to that issue.

Section 137

1. The defence also sought to object to the evidence under s 137 on a "to the extent necessary" basis. It is not "necessary". The test in s 101(2) has been amended to replicate that in s 137. No basis was advanced, or can be imagined, for the evidence to be inadmissible pursuant to s 137, even if admissible pursuant to ss 97 and 101.

Endnotes

1. Crown Case Statement [59]; Annexure A to Notice of Prosecution Reply pursuant to Criminal Procedure Act 1986 (NSW), s 144.
2. This is the formulation stated by the Crown and whether the latter part is in conformity with McAuliffe v The Queen, is not of present concern.
3. The third form of liability was clarified in oral submissions, transcript 15 February 2022, pp 9-10.
4. Italics in original.
5. Crown written submissions (CWS) [11]-[12].
6. Transcript 15 February 2022, pp 3-4.
7. Transcript 15 February 2022, pp 4-5.
8. CWS [8]-[10].
9. CWS [9]; Transcript 15 February 2022, pp 5-8.
10. CWS [25]-[27].
11. Transcript 15 February 2022, p 6.
12. CWS [18].
13. CWS [19]-[21].
14. Transcript 15 February 2022, p 8.
15. CWS [22].
16. CWS [23].
17. Transcript 15 February 2022, pp 10-11.
18. Transcript 15 February 2022, pp 11-12.
19. AWS [13], [15].
20. AWS [23].
21. AWS [17].
22. AWS [18], [20].
23. Transcript 15 February 2022, pp 15-16.
24. Transcript 15 February 2022, p 18.
25. AWS [22].
26. Transcript 15 February 2022, p 14.
27. CWS [29].
28. AWS [26]; Transcript 15 February 2022, pp 18-19.
29. AWS 26l; Transcript 15 February 2022, pp 19-20.
30. Transcript 15 February 2022, p 19(27). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2022