R v Mason

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1004 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60179/03 DC 02/21/1004

TOBIAS JA HOWIE J SHAW J

1 TOBIAS JA: On 3 May 2002, Samuel Mason (the appellant) was convicted by a jury of the charge of robbery with an offensive weapon. On 7 November 2002, Judge O'Reilly sentenced the appellant to 3 years imprisonment with a non-parole period of 2 years and 3 months. This appeal concerns only the appellant's conviction.

2 The offence charged related to an armed robbery at a Video Ezy outlet in Woodcroft, a suburb west of Sydney, at approximately 3.00 pm on 3 August 1999. The manager of that store at all material times was Joseph McGrath (Mr McGrath). On the date and time in question, he was serving a customer, Mr Azzopardi. A man entered, approached Mr McGrath and said, 'open the till'. He refused at first. The man then produced a screwdriver and said 'don't be silly'. A second man said, 'hurry up, open the safe'. The first man grabbed some Nintendo games, put them in a bag and ran out of the store. The second man said, 'don't move or you're dead'. The second man then left the store. 3 According to Mr McGrath, the first robber (on the Crown case, the appellant) was slightly taller than himself (178 cm), stocky, an Islander with dark skin, flattish nose, dark eyes and short sideburns. He was wearing a large, dark-coloured jacket, a beanie and light coloured jeans. He was unable to recognise the first man from the photographs shown to him by police. 4 The second robber had blonde hair and a lot of acne on his face. He was wearing an American 'baseball, football, windcheater type thing', which had red, white and blue colouring, although the predominant colour was white. 5 The customer described the first robber as being an Islander with staring, bulging eyes, chubby cheeks, a flattish nose, dark skin, about 5'10", of solid build and clean-shaven. He was wearing a black tracksuit with a maroon-coloured beanie. 6 The customer described the second robber as being shorter and younger, white-skinned with blonde/brown hair. He said that after the robbery, the two men rushed out of the store and got into a grey/silver Holden Commodore. The Islander got into the passenger seat whilst the younger white male got into the driver's seat. The customer was unable to see the registration number of the vehicle. 7 On 10 October 1999, the customer was asked to attend the police station to see if he could identify a photograph of the men he saw in the store. From a group of ten photographs he recognised the appellant. 8 On 5 August 1999, Detective Senior Constable Keating (Detective Keating) arrested the appellant in the vicinity of Dell Street, Woodpark. At the time of his arrest, the appellant was in the front of a silver Holden Commodore, registration number KHI 443. Next to the appellant were some clothes, comprising a blue Puma sweatshirt, grey tracksuit pants and a pair of white sandshoes. Keating took possession of the clothing and established that they belonged to the appellant.

9 The major issue at the trial was one of identification. To this end, the Crown had given notice pursuant to ss 97(1)(a) and 98(1)(a) of the Evidence Act 1995 that it intended to adduce at the trial both tendency and coincidence evidence. Relevantly, those provisions are as follows: "97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would, 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. (2) Paragraph (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 tendency evidence adduced by another party. … 98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, 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. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar; and (b) the circumstances in which they occurred are substantially similar. …" 10 Relevant also is s 101(2) of the Evidence Act which 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 defendant."

The tendency and coincidence evidence relied upon by the Crown 11 For the purposes of determining the admissibility of the evidence in respect of which the Crown had given notice pursuant to ss 97 and 98 of the Evidence Act, a number of statements were tendered on the voir dire as evidence of other offences allegedly committed by the appellant. Exhibit D on the voir dire was a statement of Catherine Joy Orth, the owner of a silver-coloured 1990 Holden Commodore sedan registration number KHI 443. Her statement was that she had parked her vehicle at approximately 8.50am on Tuesday 3 August 1999 on the third level in the Metro Car Park of Liverpool Hospital. At about 2.10pm, a security officer informed her that he had seen two young persons drive her car away. 12 Exhibit E on the voir dire was a statement of Peter Cheng, the part owner of the Minchinbury Newsagency. Mr Cheng gave evidence that at 3.30 pm on 3 August 1999, at which time he was working at the store, a dark-skinned man, at least 6' tall walked into the shop. The man said something to Mr Cheng that he was unable to understand. The cash register drawer was open and Mr Cheng saw the man run around the counter and take money from drawer. He then saw him run to a silver Holden Commodore registration number KHI 443. There was someone in the driver's seat of the vehicle but he was unable to see what he looked like. Mr Cheng described the robber as being very tall, around 6', with a big build and dark skin. He was wearing blue coloured clothing (the shirt and trousers being almost identical in colour). Mr Cheng did not see him holding any weapon. 13 Exhibit F on the voir dire was a statement of Ian Zaknich. He was the owner of the St Johns Park Pharmacy. At approximately 1.30pm on Thursday 5 August 1999, he was serving a customer at the counter when a man of Maori appearance entered the store. He left when a deliveryman entered, but then re-entered the store. Mr Zaknich then asked him, 'Can I help you?' The man said, 'Have you got a bandaid for my cut?' Mr Zaknich gave him a packet of bandaids then turned his back. He then heard the man say, 'You know the drill, open the till'. He was holding in his right hand a screwdriver which was about 10cm long. He was pointing the screwdriver at him but he could not see the handle. The robber took money from the cash register and then ran out of the store, getting into the front passenger side of a silver Holden Commodore Sedan registration number KHI 443. Mr Zaknich did not see the driver of the car. 14 Mr Zaknich later described the robber to police as 'looking like a Maori in his 20's, about 6' or 6'1", solid build, dark complexion, dark brown eyes. He was wearing a dark-coloured beanie, dark blue jumper and dark coloured pants. He spoke with what sounded like a Maori accent.' 15 I have already related the evidence of Detective Keating, who arrested the appellant at about 2.00pm on 5 August 1999.

The determination of the trial judge as to the admissibility of the tendency or coincidence evidence 16 The trial judge noted in his judgment of 1 May 2002 that in order for the evidence to be admissible, it was necessary for the Crown: "to establish if there is the necessary degree of striking similarity between the Woodcroft incident and the three incidents upon which the Crown wishes to rely under ss 97 and 98". 17 The trial judge then outlined the evidence relating to the theft of the Holden Commodore and to the armed robberies at the St Johns Park Pharmacy and the Minchinbury newsagency. In respect of these three events, his Honour noted that the appellant had pleaded guilty to offences arising out of each of them. He further observed that there would have been plenty of time for the appellant to travel from Woodcroft to Minchinbury by 3.30pm (being the time at which the appellant robbed the Minchinbury newsagency). Although the trial judge did not make his conclusion in this regard explicit, it is clear that he considered that the evidence sought to be admitted possessed the necessary degree of striking similarity.

18 Having so found, the trial judge sought to address the threshold test contained in s 101(2) namely, that the probative value of the evidence sought to be adduced must outweigh any prejudice to the accused. In this regard, his Honour stated: "…it appears to be common ground at the bar table that the Evidence Act has not really changed the substance of the test proposed in Pfennig …and that, of course, related to the common law doctrine of similar fact evidence."

In Hoch v The Queen (1998) 165 CLR 292, Mason CJ, Wilson and Gaudron JJ, in a passage adopted in the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig v the Queen (1995) 182 CLR 461 at 481, formulated the common law test for the admissibility of similar fact evidence thus (at 294): "…for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged." 19 Hence the trial judge noted that the issue before him was whether: "…the only rational view available in light of the evidence to be tendered is that the accused is guilty of this particular charge." 20 The trial judge then referred to the judgment of Hunt CJ at CL in R v Lock (1997) 91 A Crim R 356 at 363, where his Honour noted that tendency and/or coincidence evidence is inadmissible unless it has 'significant probative value' (according to the requirements of ss 97 and 98) and that such evidence, having passed the tests in ss 97 and 98, must also pass the test posed by s 101(2) of the Act. Hunt CJ at CL then said: "This is the exercise discussed by the High Court in Pfennig . It was said in that case that the prejudicial effect of similar fact evidence (or coincidence evidence, as the Evidence Act now calls it) is the possibility that the jury will treat the evidence as establishing an inference of guilt when neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused, and that, in considering the admissibility evidence (and not just in the exercise of the discretion to exclude it), the trial judge must apply the same test as the jury does in dealing with circumstantial evidence and ask whether there is available a rational (or reasonable) view of the similar fact evidence which is consistent with the innocence of the accused; it is only if there is no such view available that a conclusion can safely be reached that the probative force of the evidence outweighs its prejudicial effect." 21 The trial judge then said this: "It really seems to get to the position that a commonsense view can only be that he is guilty. That is the commonsense view arising from this tendency and coincidence evidence and I suppose from one viewpoint one could say readily that it seems just a little bit beyond mere coincidence that the same silver/grey Commodore rather features largely in all three matters relied on by the Crown and a silver Commodore is used in the event charged against this accused although the registration number was not obtained. One could say 'How many silver/grey Commodores are being driven around a fairly small radius area in the south and south-west and the west where the passenger is a big man, perhaps of Maori appearance, on occasion armed with a screwdriver and who preys on small business, small businesses, in the middle of the afternoon?' Perhaps a little earlier than that, 'Between 1.30pm and 3.30pm in the afternoon'." 22 His Honour then referred to the Crown's argument in these terms: "The Crown submits that the proximity in time is significant here. For example, about 2pm from Liverpool Hospital car park; 3pm the same day at Woodcourt (as said). That is the event that is currently listed for trial then 3.30pm at Minchinbury which is only a short distance away, that is the newsagency and then a slight break for a day or so and then the 5 August is the last event at St Johns Park which is just down to the south of the Prospect Reservoir and of course the same silver/grey Commodore is acknowledged to be used in the other three events which are not the subject of the present charge whereas at Woodcourt (as said) the vehicle used was described simply as a 'silver Commodore'. The Crown relies on the physical descriptions offered by the Video-Ezy witnesses at Woodcourt. The fact that the robber always was a passenger in the vehicle together with numerous other similarities such as the time of the events, the way in which the till was directed to be opened and so on. The Crown says 'Anyone with commonsense would say there's only one rational explanation and that is the same man was the robber on all four occasions'." 23 After referring to the defence submissions (that there was nothing exceptional about the alleged similar facts; that there was nothing exceptional about Islander people being involved in armed robberies; and that the evidence didn't establish some form of trademark of the appellants), the trial judge referred to some older cases and said: "We have really got to make a decision on this particular factual scenario." 24 His Honour's conclusion as to the question of admissibility was framed in the following terms: "The conclusion that I have come to is that it is a matter for the jury. In my view a jury would be entitled to look at these other three events and then it is a matter for them of course. If they wish to say 'This evidence convinces us without a shadow of a doubt that the accused was the perpetrator of the Woodcourt robbery' and of course in considering that matter they will need to consider the substantive evidence in support of the charge. I have not seen that yet apart from the statements of the two witnesses so therefore - I will grant leave to the Crown then to adduce evidence as to tendency/coincidence in respect of the three events which I have endeavoured to articulate, that is to say, the larceny motor vehicle on 3 August 1999; the robbery at Minchinbury on 3 August 1999 and the robbery at St Johns Park on 5 August 1999."

The appellant's submissions 25 The sole ground of appeal was that the trial judge erred in admitting the evidence referred to. 26 The appellant did not seek to contest that the evidence in question did not have "significant probative value" within the meaning of s 97(1)(b) and/or s 98(1)(b) of the Evidence Act. Rather, it was submitted that: firstly, the trial judge did not make the determination required by s 101(2) that there was no rational explanation for the tendency evidence consistent with the innocence of the appellant; and secondly, that there were insufficient similarities between the relevant events to come to the above conclusion. 27 The appellant did not contest the trial judge's finding (of which evidence was ultimately given at the trial) that the distance between Woodcroft and Minchinbury was approximately 10km and that there would have been sufficient time for the appellant to travel from Woodcroft (after committing the robbery) to Minchinbury by 3.30pm. It was submitted that the only similarities (upon which the Crown relied as coincidence evidence) between the Video Ezy robbery and the other two robberies were firstly, that in each case the perpetrator was tall, solidly built and appeared to be an Islander, and secondly, that in each case the perpetrator escaped in a silver or grey Holden Commodore. 28 On the other hand, the following differences were demonstrated:

(a) At the Video Ezy robbery, there was a second robber with blonde hair and noticeable acne pockmarks. In the other two robberies, the appellant entered the stores alone. There appears to have been an accomplice waiting in the stolen car, but there was no description of that person.

(b) Although a screwdriver was used in the Video Ezy robbery and in the St Johns Park robbery, there was no evidence of any weapon being used in the Minchinbury Newsagency robbery.

(c) It could not be said that the person, alleged to be the appellant, was wearing the same clothing during each of the three robberies. According to Mr McGrath, the first robber was wearing a " big dark jacket and jeans or light coloured pants ". According to Mr Azzopardi he was wearing " a black tracksuit ". They both said the robber was wearing a beanie. At the Minchinbury Newsagency robbery, Mr Cheng described the robber's clothes as being " blue in colour and the shirt and trousers were nearly the same colour ". There was no mention of a beanie. With respect to the St Johns Park Pharmacy robbery, the robber was described as wearing a " dark blue jumper and dark coloured pants and a beanie ".

(d) It could not be said that the premises robbed were close to each other. It was asserted that Woodcroft was about 15km away from St Johns Park. I have already referred to the fact that it was not suggested that the trial judge erred when he said that " there would have been plenty of time to travel from Woodcroft to Minchinbury by 3.30pm ". The St John's Park robbery occurred two days after the other two.

(e) Although there was evidence of the registration number of the Commodore at the Minchinbury and St Johns Park robberies, there was no evidence of the registration number of the Commodore used at the Video Ezy robbery. This submission was made notwithstanding that the Commodore registration number KHI 443 was silver/grey in colour, as was the vehicle used in the Video Ezy robbery. 29 It was submitted that it could not therefore be said that the only rational explanation for the evidence of the robberies was that the same person had committed them all.

The Crown's submissions 30 It was submitted by the Crown that there were a number of distinct similarities in relation to the description of the perpetrator in each of the three robberies. Firstly, the robber was of Islander appearance, had dark skin, was around 6', was about 20 years old, with a solid build and dark eyes. Secondly, there were similarities in the description of the robber's clothing. In particular, the robber at the Video Ezy and St Johns Park Pharmacy robberies was wearing a dark coloured beanie. When the appellant was arrested by Detective Keating, he had beside him clothing which was similar to that described by the witnesses to the three robberies both in description and colour. Thirdly, a grey/silver Holden Commodore sedan was used in each of the three robberies. In relation to the Minchinbury and St Johns Park robberies, the registration number of the vehicle was ascertained and was the same in each case. Fourthly, in the Video Ezy and St Johns Pharmacy robberies, the robber was armed with a screwdriver. Fifthly, in the Video Ezy and St Johns Park robberies, the robber used the words "open the till". Sixthly, in each of the three robberies, the robber had an accomplice who drove the getaway vehicle. In each case, the robber got into the front passenger seat of the vehicle. Finally, the timing of the theft of the Commodore on 3 August 1999 at 2.00pm, the Video Ezy robbery at about 3.00pm and the Minchinbury robbery at about 3.30pm (all on the same day) revealed a pattern of events closely related in terms of both location and timing. 31 In the foregoing circumstances, the Crown submitted that the coincidence of the timing of the robberies on 3 August 1999, together with the other similar features to which reference has been made, and with the fact that the appellant pleaded guilty with respect to the Minchinbury and St Johns Park robberies, inevitably lead to the conclusion that there was no reasonable view of that evidence consistent with the innocence of the appellant. This is particularly so given the identification evidence of Mr Azzopardi. Based upon the test adopted by Hodgson JA in [29] of his judgment in Folbigg (to which I have referred at [36] below), the Crown submitted that the coincidence evidence relied upon was such that when added to the other evidence including the identification evidence of Mr Azzopardi, it would eliminate any reasonable doubt which might otherwise be left by that other evidence.

Determination of the issues 32 It is clear from the preceding paragraphs that the parties conducted their respective cases on the basis that the test articulated in Pfennig for the admissibility of 'similar fact evidence' at common law (to which I have referred in [18] above) is imported into the s 101(2) threshold. This is consistent with the approach taken by this Court in numerous cases dealing with this question: R v AH (1997) 42 NSWLR 702 at 709; R v Lock at 363; R v WRC (2002) 130 A Crim R 89 at [25]-[29]; R v Folbigg [2003] NSWCCA 17 at [24]. 33 However, very recent authority on this question has indicated a shift in the Court's approach to the interpretation of s 101(2). In R v Ellis [2003] NSWCCA 319, this Court (constituted by Spigelman CJ, Sully, O'Keefe, Hidden and Buddin JJ) held that the statutory regime for the admissibility of tendency and coincidence evidence was intended to cover the field to the exclusion of the common law principles previously applicable. In particular, the threshold test in s 101(2) constitutes a new formulation which is not derived from prior case law. Spigelman CJ (with whom Sully, O'Keefe, Hidden and Buddin JJ agreed) stated at [88]: "The continued application of a "no rational view" test is not, in my opinion, consistent with a statutory test which expressly requires a balancing process…"

The Chief Justice (at [91]) then referred to the following passage in the dissenting judgment of McHugh J in Pfennig (at 516), which he said he found compelling: "If evidence revealing criminal propensity is not admissible unless the evidence is consistent only with the guilt of the accused, the requirement that the probative value 'outweigh' or 'transcend' the prejudicial effect is superfluous. The evidence either meets the no rational explanation test or it does not. There is nothing to be weighted - at all events by the trial judge. The law has already done the weighing. This means that, even in cases where the risk of prejudice is very small, the prosecution cannot use the evidence unless it satisfies the stringent no rational explanation test. It cannot use the evidence even though in a practical sense its probative value outweighs its prejudicial effect."

He then said: "94.The words "substantially outweigh" in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The "no rational explanation" test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. 95. Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick (2000) 111 A Crim R 326 at [20] per Sheller JA; F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368). The "no rational explanation" test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s 101(2) to that effect. Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion…The "no rational explanation" test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process."

Accordingly, it was held that the common law " no rational explanation " test, which culminated in Pfennig, was no longer the test to be applied by way of explication of the statutory formulation in s 101(2). To the extent to which previous authorities in this Court held to the contrary, they were incorrect and were no longer to be followed. 34 Given that this recent shift in authority occurred shortly after the conclusion of the hearing in the present appeal, this Court is placed in a most unusual position. As I have said, the parties conducted their respective cases before the trial judge and before this Court on the basis of the common law position. Nonetheless, I consider myself bound to deal with the issues presently before us on the basis of the construction of the relevant statutory provisions articulated in Ellis. 35 Prior to addressing the question of whether the subject evidence passed the threshold tests contained in the statutory provisions, it is appropriate to deal with the appellant's submission that the trial judge erred in concluding that the question of whether the evidence satisfied the "no rational explanation test" was one for determination by the jury. 36 In a recent judgment of this Court, R v Folbigg (2003) NSWCCA 17, Hodgson JA (Sully and Buddin JJ agreeing) stated: "28. I set out in WRC in the passages quoted how I understand the Pfennig test to operate. I would add that the test certainly does not require the judge to reach the view that the jury acting reasonably must convict: the judge must form his or her own view as to whether there is no rational view of the evidence, as it then appears to the judge, which is consistent with innocence , and the judge does not need to speculate as to how precisely that evidence may be affected by the way it is presented at the trial or by cross-examination, or how other minds might view it. Furthermore if, as the trial progresses, there are grounds for contending that the evidence as presented turns out to be substantially different from how it appeared at the time of the determination of admissibility or the joinder of counts, there may be a ground to apply for those questions to be re-considered." (my emphasis) 37 With respect, I agree with the appellant's submission that the trial judge did not, at least in express terms, form the view required of him if he was to admit the contested evidence. The paragraph of his judgment, which I have recorded in [24], compels such a conclusion. As Hodgson JA makes clear in that part of [28] of his judgment cited above which I have emphasised, the decision was one for his Honour to make as a matter of law, and not a question to be determined by the jury. Nonetheless, having admitted the evidence, the only question is whether his Honour was correct in doing so. No doubt it is implicit in the fact he admitted the evidence that he considered that the Pfennig requirement had been satisfied. It is appropriate to proceed on this basis, for even it if was a matter for the jury (notwithstanding his Honour's "conclusion"), this Court is in as good a position as the trial judge to determine whether the evidence should have been admitted. This is particularly so as the evidence was not in dispute.

38 In my opinion, the evidence in question was coincidence evidence rather than tendency evidence. The coincidence rule embodied in s 98 of the Evidence Act requires that in order to be admissible evidence of related events must be: substantially similar; show that the events occurred in substantially similar circumstances; and have significant probative value in relation to proving that the accused did in fact do the particular act alleged. Only if these threshold requirements are satisfied does the evidence proceed to the additional threshold test contained in s 101(2). 39 It was accepted by the appellant that the evidence did have significant probative value, as required by s 98(1). This concession was clearly correct. Although it was not directly argued by the appellant that the evidence did not satisfy the further threshold tests contained in s 98(2), I feel that it is necessary to address this question given that there was dispute between the parties as to the degree of similarity between the relevant events. 40 In my opinion, the evidence does satisfy the threshold tests in s 98(2). To suggest, as does the appellant, that the only common features were the colour/make of the getaway vehicle and the description of the robber does little justice to the other features of that evidence. In particular, the following facts demonstrate the requisite similarity: the location and timing of the theft of the vehicle and the two robberies on 3 August 1999; the robber fitted a common description on all four occasions; on two occasions the same phrase "open the till" was used; on two occasions the robber was wearing a beanie as well as consistent clothing; on each occasion the robber got into the passenger seat of a silver/grey Holden Commodore sedan. 41 It may be, as the appellant submitted, that many people of Islander descent are tall and solidly built, and that there are many silver or silver/grey Holden Commodore sedans. However, when these features are taken together with the other features mentioned, having particular regard to the fact that there was no dispute (because he pleaded guilty) that the appellant was involved in the stealing of the getaway vehicle and in the Minchinbury and St Johns Park robberies, it is clear, in my opinion, that the events relied on were substantially and relevantly similar and that the circumstances which they occurred were also substantially similar. 42 Finally, this Court must determine whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence might have upon the defendant: s 101(2). 43 As stated by Spigelman CJ in Ellis, the degree of probative value required in order to satisfy the s 101(2) test will vary according to the facts of each individual case. His Honour held at [96] that this construction of s 101(2): "…should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the "no rational explanation" test were satisfied." 44 However, in my opinion the present case is not one in which the more stringent "no rational explanation" requirement need be satisfied. This is so particularly given that the evidence is not in dispute as the appellant pleaded guilty to the theft of the vehicle and the Minchinbury and St Johns Park robberies. But even if that requirement was appropriate, it would in my opinion, be satisfied.

In my opinion, the probative value of the subject evidence substantially outweighed any prejudicial effect it may have had on the appellant. There is no doubt, of course, that admission of the evidence of the theft of the Commodore and the Minchinbury and St Johns Park robberies to which the appellant pleaded guilty would have a prejudicial effect on him in the mind of the jury. Such is the very nature of coincidence evidence. Unless it pointed to the guilt of the accused with respect to the offence charged, it would be of no probative value. But here its probative value in the circumstances that I have related was not only significant but was extremely high. Although there were some differences in some of the details of the event, their significance was, in my opinion, relatively minor compared to their similarities which were substantial. Those similarities are set out in [30] above as part of the Crown's submission with which I agree. 45 Accordingly, when the balancing exercise called for by s 101(2) is undertaken, the scales are substantially weighted in favour of the probative value of the evidence. It follows that the trial judge was correct in holding that the evidence was admissible. The trial judge's subsequent comments 46 The trial judge admitted the subject evidence on the first day of the trial (1 May 2002). The appellant was convicted on 3 May 2002. Proceedings on sentence commenced on 19 June 2002, at which time the following exchange took place between the trial judge and counsel for the appellant: "His Honour: One thing I notice on looking at the brief again was that the statement of the detective as to this incident on which he was convicted says that the registration number was taken and that's not true. It was only identified as a silver grey Holden. Leary: That's so your Honour. His Honour: The thing that really stood out was that the young blond, the fellow with the pock marked face was seen only one occasion, this occasion. Leary: That's so. His Honour: So really that material just shouldn't have gone to the jury in my view. …" 47 When the sentencing proceedings continued on 7 November 2002, the trial judge said this: "His Honour: Something I noticed was when Keating gave his evidence about the final matter on 5 August he said nothing about the other man Errington. There's nothing on the transcript at all about Errington. If I'd known that I think there is no way in the world I would have given leave to call that section 97…(not transcribable)…I just mention that for the record." 48 In his remarks on sentence delivered on 7 November 2002, the trial judge referred to the issue of identification and to the fact that he had given leave to the Crown to introduce evidence of "other similar matters". After referring to the stealing of the motor vehicle and the Minchinbury and St Johns Park robberies, his Honour said this: "I gave leave, and I will not go into it now, it will be a matter, as I say, for the Court of Criminal Appeal, one of the chief factors was that the was said to be accompanied at all times by a young blond headed man with acne. I bear in mind that the accused is a big man, a big Samoan young man, twenty-one years of age. In fact, on the last event when the prisoner was arrested on 3 August 1999 I discovered later when the police officer Mr Keating was giving his evidence that a man named Errington had been arrested at the time but the statement was utterly silent as to his appearance. I mention just for the record that had I been aware of that fact at an earlier point in time I simply wouldn't have given the leave under sections 97 and 98. But I cannot correct that situation." 49 On 8 October 2002, the trial judge gave a "judge's Certificate" in which he certified the following: "I hereby certify that this case, in which the abovenamed Samuel Mason was convicted before me on the third day of May, 2002 of the offence of armed robbery, is a fit case for an appeal by the Samuel Mason against his conviction on the following grounds: The s 97 and 98 evidence should not have gone to the jury. The younger blonde haired co-offender was described only on the event charged. An offender name Aaron Errington was referred to at the time of the Accused's arrest, but no description of him was given. The registration number of the silver grey Holden was not obtained on the event charged."

50 Finally, in a letter to the Registrar of this Court dated 2 July 2003, his Honour wrote: "Would you please inform the Court that in my opinion there has been a miscarriage of justice for the reasons which I have set out early on in the Sentencing Remarks". 51 The trial judge would not have admitted the subject evidence: had he not been under the incorrect impression that there would be evidence that the registration number of the vehicle used in the Video Ezy was the same as that of the car used in the other robberies; and had he realised that Detective Keating's statement was silent as to the appearance of the man named Errington (who was arrested at the same time as he arrested the appellant), so that there was no description fitting that of the second robber at the Video Ezy robbery. 52 It is not clear whether the trial judge, when he made the remarks referred to, had been given the opportunity to reread the judgment he delivered on the admission of this evidence on 1 May 2002. That judgment makes two things clear. Firstly, although there was a detailed description of the second robber at the Video Ezy robbery, there was only one robber involved in the Minchinbury and St Johns Park robberies (although there was a second person in the driver's seat of the getaway vehicle, in respect of whom there was no physical description). Thus, with respect to the Minchinbury robbery, the trial judge observed in his judgment of 1 May 2002: "Now it is of significance that having done that he entered the passenger's side of the vehicle. There was another man in the driver's seat but he was unable to provide identification."

With respect to the St Johns Park robbery, his Honour said this: "The pharmacist followed him out into the street and saw him open the door and get into the front passenger's side of a silver Commodore sedan. The registration number was obtained. It was registration number KHI 443. He did not see the driver." 53 It is also apparent that his Honour appreciated that although witnesses at the Minchinbury and St Johns Park robberies identified the registration number of the silver grey Commodore, this was not the case with respect to the Video Ezy robbery. I refer to the passages of his Honour's judgment, which I have recorded in [22] above. 54 Although in the references set out in [46] and [47] above the trial judge refers to the fact Detective Keating did not in his evidence describe the appearance of the man (Errington) who was arrested at the same time as the appellant, there was no reference to Keating's evidence in his Honour's judgment of 1 May 2002, although he had it before him on the voir dire. 55 It is difficult in the foregoing circumstances to appreciate why the lack of any description of Errington by Detective Keating was regarded by the trial judge as being critical to the admission of the subject evidence. No doubt, if there had been a description of Errington fitting the description of the second robber in the Video Ezy robbery, that would have strengthened the Crown's case as to the admission of the coincidence evidence. 56 For the reasons I have advanced above, I do not consider that the absence of evidence regarding the description of Errington weakens the evidence upon which the Crown relied to the point that it would not pass the test set forth in s 101(2) of the Evidence Act. If the trial judge thought otherwise, he was, with respect, being overly conservative.

57 Accordingly, with respect, I do not think that the trial judge was under any erroneous impression on 1 May 2002 regarding the nature of the coincidence evidence tendered before him. Even if he was in error in the respects identified by him and notwithstanding that he indicated some six months later that had he been aware of those matters, he would have refused to admit the evidence, nonetheless in my opinion the coincidence evidence relied upon by the Crown was, in law, properly admitted.

Conclusion 58 For the foregoing reasons, I am of the opinion that the appeal against conviction should be dismissed.

59 HOWIE J: I agree with Tobias JA. 60 SHAW J: I agree with Tobias JA

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