Solicitors:
Director of Public Prosecutions - Crown
File Number(s): 2017/178071
[2]
Judgment
On 15 October 2018, Ian Brian Hammond was arraigned before me on an indictment alleging one offence in breach of s 97(1) of the Crimes Act 1900 NSW that on 12 June 2017 at Flinders in the State of New South Wales being armed with an offensive weapon, namely a knife robbed Simon Shehata of certain property, namely a sum of money, a gold "Citizen" watch, and Antenex (Valium) tablets, the property of Simon Shehata. He pleaded not guilty.
Before empanelling the jury, I was invited by the parties to determine a number of linked matters in relation to the admissibility of evidence. Having considered evidence and submissions, I made a number of rulings on 15 October 2018, and these are the reasons for those rulings as made.
The Crown makes application that the Court admit identified evidence on both a coincidence and tendency basis pursuant to notices served pursuant to ss 98 and 97 of the Evidence Act. No issues were taken or arose concerning the notice or service of either notice.
Mr Hammond has pleaded guilty and awaits sentence in this Court in relation to a robbery of a sum of money at Cash Converters Warrawong on 14 June 2017 (the Warrawong Robbery).
In short, the Crown seeks to lead evidence of that robbery and Mr Hammond's admission of guilt in relation to it both for coincidence and tendency purposes. It is proposed, if it ruled admissible, that the key features of that robbery and Mr Hammond's admission of guilt be proved by virtue of a statement of agreed facts pursuant to s 191 of the Evidence Act. .
The Crown contends that Mr Hammond was the person who committed the Flinders robbery, which is the robbery on the indictment of 12 June 2017. He was arrested very shortly after the commission of the Warrawong robbery on 14 June 2017 at his residential premises. At the time of his arrest, he was wearing a gold "Citizen" watch which Simon Shehata later identified as the watch taken from him in the course of the Flinders robbery.
Upon a search of his residential premises on 14 June 2017, apart from clothing similar to that worn by the offender during the Warrawong robbery, two items of potential relevance were found. First was a backpack which the Crown will invite the jury to consider is distinctive and consistent in appearance with the backpack the person who committed the Flinders robbery was wearing as the robbery took place.
The Crown has evidence suggesting that such a backpack was one of 1,000 such backpacks distributed free of charge to clients of Gray's Coaches between 2009 and 2011. It is understood that Mr Hammond's partner has confirmed to the police that the backpack found belonged to Mr Hammond. Second, a "ghost" mask found in some undetermined place within those residential premises. I will deal with the admissibility of any evidence concerning the mask in due course.
In the course of argument, the Crown Trial Advocate, properly in my view, conceded that the Crown's application for the relevant evidence to be admitted on a coincidence basis was more powerful than the argument contending for admission on a tendency basis. The tendency contended for in the most recent tendency notice was a tendency to act in a particular way, namely to rob small businesses of small amounts of cash in the Lake Illawarra area between 12 and 14 June 2017.
An earlier notice had sought to establish a wider tendency and placed reliance on prior robbery convictions between 2007 and 2013 but had been abandoned in favour of the more narrow notice now relied on. This determination may well have flowed as a result of the determination in Illievski v R and Nolan v R [2018] NSWCCA 164. I ought say the publication of that decision remains currently restricted as to its publication.
The Crown contends that similarities in each of the Flinders and Warrawong robberies and the circumstances in which they were committed give rise to the improbability of the two offences occurring coincidentally. The evidence establishes that these were the only two robberies reported to police within the Lake Illawarra area in the time period 12 to 14 June 2017 inclusive.
The asserted similarities included commission in the Lake Illawarra area, during daytime, on weekdays on a small business, with a small amount of cash taken. CCTV stills were relied on in relation to the similarity of build of the sole offender in each robbery. Descriptions provided by witnesses varied but included in relation to Flinders: medium build, 170 centimetres tall, Australian, six-foot-tall, Aboriginal appearance, and in relation to Warrawong: 170 to 175 centimetres, light brown complexion, Aboriginal, weight of 70 to 75 kilograms.
Other similarities relied on included that both offenders wore a hoodie with the hood up. In relation to Flinders, a dark grey mask covering face or mouth and nose, and in relation to Warrawong, black face cover over the bottom part of face. Demands made in relation to Flinders were: "Give me the money" And in relation to Warrawong: "This is a robbery, where's the money? Get down." In relation to Flinders, the offender came from behind the front counter to the till himself. In relation to Warrawong, the offender jumped over the front counter to the till himself. In each robbery, the offender left on foot.
Mr Juhasz for Mr Hammond relied on a number of dissimilarities. In the Flinders robbery, a knife was used and brandished. In the Warrawong robbery, no weapon was sighted although a threat was made; "I'm going to shoot you both." The Crown relied on the test as to similarity having regard to other evidence and contended that the availability for the jury to consider a similar bag was visible in both sets of CCTV footage, and to form a view that on the Warrawong footage, Mr Hammond appears to be wearing a watch consistent with that found on his person and also being the fruit of the Flinders robbery.
Conversely, Mr Juhasz contended many of the similarities relied on by the prosecution were generic to robberies. Additionally, he submitted that an eye witness to the offender's retreat from the Flinders robbery failed to pick up Mr Hammond from a photo array, and discussed features of two gentlemen in the photo array that were inconsistent with Mr Hammond's appearance. The relevant sections of the Evidence Act are:
Section 98 The Coincidence Rule:
"(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."
Section 98(2) provides:
"(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 the Act, or of other laws, may operate as exceptions to the coincidence rule"
Section 101(1) provides:
"(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98."
Section 101(2) Provides:
"(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is 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 accused."
[3]
RELEVANCE
I want to set out some of the applicable principles drawn from the authorities. It is clear that the first matter that the Court needs to determine in whether pursuant to s 55 of the Evidence Act 1995 NSW, the evidence in question in relevant. That is, is it evidence that if it were accepted could rationally effect either directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings?
Here, the fact or facts in issue that the prosecution contends makes the proposed evidence relevant is the identity of the offender in relation to the Flinders robbery.
I consider that the proposed evidence achieves relevance. If accepted, the evidence if admitted could rationally affect the probability of the existence of facts in issue in the trial.
[4]
PROBATIVE VALUE
In assessing for coincidence purposes whether the evidence has significant probative value, I am required to consider the combined effect of all relevant similarities as opposed to giving consideration to each particular circumstance separately as per the decision of Bathurst CJ in R v Matonwal & Amood [2016] NSWCCA 174 at paras 73 and 75 (Rothman and McCallum JJ agreeing).
I accept, and the parties before me accept, that there is no requirement to show that the evidence reveals striking similarities between events or circumstances within events or both. I refer to R v MR [2013] NSWCCA 236 at [77]. Coincidence evidence will not necessarily be deprived of significant probative value by the existence of some dissimilarities within events. There is some analysis in relation to dissimilarities that did not disqualify evidence from having an admissible coincidence nature in Selby v R [2017] NSWCCA 40 at 24.
In R v BP [2010] NSWCCA 302 at [8], Hodgson JA with whom Price and Fullerton JJ agreed made the following statement with regard to similarity and circumstances:
"It is not necessarily in criminal cases that the incidents relied on as evidence of the in this case tendency to be closely similar to the circumstance of the alleged events or that the tendency be a tendency to act in a way or to have a state of mind that is similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused."
Although relating to tendency evidence, that quote has some relevance for the current exercise. A helpful analysis of the correct approach to first analysing and then implementing the relevant tests for purposes of determining whether evidence is properly admissible as coincidence evidence pursuant to s 98 and, if relevant, s 101 is to be found in the judgment of Simpson J in R v Gale & Duckworth [2012] NSWCCA 174. Both McClellan CJ at CL and Fullerton J agreed with her Honour at para 25 of Gale, Simpson J set out:
"At its heart, s 98 is a provision concerning the drawing of inferences. The purpose to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
1. Two or more events occurred; and;
2. That there were similarities in those events; or similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
3. Having regard to those similarities, it is improbable that the two events or any number of more than two events occurred coincidentally."
From those things, an inference might be drawn that a person did an act or had a particular state of mind, and I am there effectively paraphrasing what Simpson J said at para 25 of Gale. Her Honour's analysis in Gale has been cited with approval in a number of decisions since. At para 29, Simpson J provides this helpful understanding:
"Section 98 is framed in the negative. It is, therefore, more accurate to say that it is a provision that prohibits the admission of evidence from which such an inference may be drawn unless the stated conditions are met."
Thereafter at paras 30 and 31, her Honour summarises the approach to be taken, and that summary is extracted with approval by Chief Justice Bathurst in the decision of Matonwal. Because I ultimately intend to proceed in the fashion by Simpson J, I set out what her Honour said from paras 31 and following in Gale:
"The first step is to identify the 'particular act of a person' or the 'particular state of mind of a person' that the party tendering the evidence seeks to prove;
The second step is to identify the 'two or more events' from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the 'particular act' or had the 'particular state of mind';
The third step is to identify the 'similarities in the events' and/or the 'similarities in the circumstances in which the events occurred' by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence between the events or of the event;
The fourth step is to determine whether 'reasonable notice' has been given of the intention to adduce the evidence.
The fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, 'have significant probative value'; in a criminal proceeding, if it is determined that the evidence would have 'significant probative value',
The sixth step is the determination whether the probative value of the evidence 'substantially outweighs' any prejudicial effect it may have on the defendant (s 101(2)). The sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it may have, R v RN [2005] NSWCCA 213(as said), and a balancing of the two."
I will return to that process shortly. It is necessary to consider the evidence sought to be led pursuant to s 98 against the whole of the evidence likely to be available. In this particular circumstance, the second event relied on (the Warrawong Robbery) has been the subject of an admission of guilt by Mr Hammond, and so the question of two unproved allegations being relied on each as coincidence evidence does not arise.
In moving to the first issue for determination, that is, does the evidence have relevance for purposes of s 55? As I have already indicated, I find it achieves relevance. I then return to my analysis and undertaking of the exercise as posited by Simpson J in Gale at para 31 and following.
[5]
The first step:
Is to identify the particular act of a person or the particular state of mind of a person that the party tendering the evidence seeks to prove. Here, the Crown seeks to prove that particular act is that of Mr Hammond, that is that he was the offender in the Flinders Robbery.
[6]
The second step:
Is to identify the two or more events from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the particular act. I have already extracted what the two events are, being the Flinders and Warrawong robberies.
[7]
The third step:
Is to identify the similarities in the events or the similarities in the circumstances in which the events occurred by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence between the events or of the event. In essence, what I propose to do is identify first the similarities that are generic to many robberies. Those are a demand for money, a wearing of a hoodie with the hood up, and leaving the premises on foot. Some matters are simply similar to each of the offences without more, being weekday, daytime, robberies of small businesses.
The more particular similarities between the two events are the use of a dark coloured, lower face covering in combination with a hood, use of bare hands and the offender in each instance positioning himself behind the counter and till. Additional to those can be added the similarities that might be drawn from a viewing of the two sets of closed circuit television footage.
The fact that the two events relied on constituted the only two reported robberies in the Lake Illawarra in a two-day period renders a further relevant similarity. Whilst I accept that there is dissimilarity in the sense of a knife being used in the Flinders robbery and not in the Warrawong robbery, consistent with Selby cited above, I am not persuaded that such dissimilarity deprives these events of sufficient similarity.
[8]
The fourth step:
Is to determine whether reasonable notice has been given of the intention to adduce the evidence. Reasonable evidence notice has been given.
[9]
The fifth step:
Is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, have significant probative value. It is accepted from the authorities and particular in Selby, that often dissimilarities will not operate to deprive evidence of having significant probative value. To have significant probative value, evidence should be meaningful in the context of the issues at trial, and important in establishing the facts and issues, consistently with the decision of AW v R [2009] NSWCCA 1, per Latham J at [4], with whom Bell and Fullerton JJ agreed.
In assessing probative value, I am obliged to take the evidence at its highest and assume its full acceptance for current purposes. I consider the evidence has significant probative value, when considered alongside the evidence of a distinctive backpack being found at the offender's residence within two days of the Flinders robbery, and the accused at the same time being in possession of the gold "Citizen" watch stolen during the Flinders robbery. (I have excluded from my mind the "mask" evidence given that I have in due course determined not to admit it).
Coupled with the evidence concerning the bag and the watch only, material establishing that Mr Hammond committed the only other robbery reported to the Lake Illawarra area police across a two day period and with a range of similarities that I have identified has significant probative value in establishing that Mr Hammond may well have been the offender in relation to the Flinders robbery, or put another way, it might be thought highly implausible that he was not.
[10]
The sixth step:
Requires the determination whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. Returning to Simpson J's analysis in Gale, having determined that the evidence that relates to the two events has significant probative value, as the sixth step, it needs to be determined whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on Mr Hammond for purposes of s 101 (2) of the Evidence Act. Any prejudicial effect on the accused ought to be understood as being prejudicial effect over and above the legitimate prejudicial force that is inherent in evidence that attaches to bringing a charge against an accused person in the usual way, that is, evidence that attempts to prove that charge by virtue of its forensic prejudice.
On my reading of the authorities, an assessment of unfair prejudice concerns where the material coming before a jury which may be given undue weight, whether a jury will reason impermissibly, or whether there is some prejudice that cannot be cured by proper direction. Selby stands as authority that evidence led on a coincidence basis can be relied on in circumstances in which the real issue at trial is the identity of an offender.
I am satisfied that proper directions can be given to the jury to address any danger of the coincidence evidence being misused. I will in due course direct the jury about the limitations on the use to which they can put the evidence led for coincidence purposes. As but one example, they will be directed not to reason impermissibly as to the accused's general poor character. Further, given my next ruling, the jury will also be directed not to reason in a tendency fashion as a result of understanding that Mr Hammond committed the Warrawong robbery.
Accordingly, I am persuaded that the probative value of the evidence substantially outweighs any prejudicial effect (as explained in R v Bauer [2018] HCA 40). I consider that in light of the ruling, it is appropriate that evidence of the second event be led by the admission of the agreed facts document, and the tender and playing of the CCTV footage from the Warrawong robbery.
[11]
TENDENCY
It is accepted that the distinction between coincidence and tendency evidence is not always clear cut and there can be overlap, see El-Hilli and Melville v R [2015] NSWCCA 289. The tendency contended for here is narrow and is limited to a tendency to act in a particular way (commit robberies on small business in the Lake Illawarra area between 12 and 14 June 2017) rather than have a tendency to have a particular state of mind (more traditionally obviously in a totally different type of case, say, to have a sexual interest in young girls).
I am not persuaded that the evidence has significant probative value as to the tendency identified. To the extent that it has probative value, that value does not outweigh, or does not substantially outweigh the danger of prejudice to Mr Hammond. Apart from directions to the jury necessarily being more complex where tendency and coincidence reasoning are to be adopted, there is a real danger in my view of overweight being accorded to the evidence if it is admitted for those multiple purposes, given the very narrow compass of other evidence to be led in the trial. Accordingly, I decline to admit the evidence of the Warrawong robbery, and the accused's admission to having committed it on a tendency basis.
[12]
"GHOST MASK" EVIDENCE
In determining "all the available evidence" for purposes of my ruling as to coincidence evidence, it was necessary to determine whether the Crown could properly rely on evidence of a ghost mask being found at the offender's residence on 14 June 2017. The Crown is not able to establish the provenance of the mask within the premises. Put more simply, where the police found that mask - whether it was in a bag, a room, or an area specifically occupied by the accused, whether it was in a toy box, or where it was at all - is unknown.
Assuming for current purposes that the existence of the mask achieves relevance, its probative value is very slender, given uncertainty as to the circumstances of it being found. Additionally, in contradistinction to the evidence available from Mr Hammond's partner linking him to the distinctive bag, it is understood that there is no such material from her in relation to the ghost mask, or at all. There is a very real danger of unfair prejudice. Any use of the mask cannot be linked to the offence charged, nor to the second event to be admitted for coincidence purposes.
There is a danger that the jury may seek to reason that the offender "must have" had the mask for nefarious purposes, despite more limited and quite different face coverings being used in each of the two events to be led in evidence.
Accordingly, undertaking the exercise provided for at s 137 of the Evidence Act, I determine that any evidence in relation to the mask is not to be admitted.
[13]
Amendments
29 July 2019 - Para [4] date of offence altered
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Decision last updated: 29 July 2019