R v Matonwal & Amood

Court of Criminal Appeal (NSW)|2016-03-30|Before: Bathurst CJ, Rothman J, McCallum J

Solicitors: Solicitor for Public Prosecutions (Appellant) Oxford Lawyers (Respondent Matonwal) Criminal Defence Group (Respondent Amood) File Number(s): 2014/1683882014/161705 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 October 2015 Before: Colefax SC DCJ File Number(s): 2014/00143581 2014/00168388 2014/00143578 2014/00161705

Judgment

BATHURST CJ: This is an appeal brought by the Director of Public Prosecutions pursuant to the provisions of s 5F(3A) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against a ruling by a judge of the District Court (the trial judge) refusing to admit certain evidence as tendency or coincidence evidence in a trial of the respondents (Messrs Matonwal and Amood) on five counts of armed robbery under s 97(1) of the Crimes Act 1900 (NSW) and three counts of going with face disguised with intent to commit robbery under s 114(1)(c) of that Act.

The Crown case

The parties agreed that for the purpose of determining the admissibility of the evidence in question, the trial judge could rely on the statement of the Crown case. It was not suggested a different approach should be taken on the appeal. It should be noted, however, that some of the statements in that case of what can be seen on the CCTV footage of the incidents in question are not consistent with the Coincidence Chart of the Crown or my observations of the CCTV footage.
The first count on the indictment ultimately presented involved a robbery at the Speedway Service Station at Regents Park (the Regents Park robbery). The Crown case was that the respondents entered the service station armed with knives and threatened the victim, a Mr Jaffar Ali, who was working alone in the store.
The first offender was described as 24 to 25 years old, about five foot seven inches tall and of large build. CCTV footage depicts him wearing a grey hooded jumper with the hood covering his head, black tracksuit pants, a black mask and disposable yellow gloves. The Crown case statement refers to this offender wearing white shoes with yellow laces. On viewing the footage, these shoes could more accurately be described as white, green and black running shoes. The offender was armed with a meat cleaver that had a small round hole in the top corner of the blade and spoke with a Middle Eastern accent. The Crown case is that the height, build, age and cultural background of the offender is consistent with that of Mr Matonwal.
The second offender was described as 20 to 22 years old, of Middle Eastern appearance, about five foot five inches tall and of medium build. CCTV footage depicts him wearing a blue hooded jumper with the hood covering his head, black tracksuit pants with white stripes down the outside of the legs, dark cloth (possibly a t-shirt) over his face, disposable yellow gloves and white shoes. The shoes appear to have distinctive black writing along the sides. The offender was armed with a silver knife. The height, build, age and cultural background of this offender is said to be consistent with that of Mr Amood. The Crown case was that the offenders demanded access to the safe and closed motorised shutters fitted to the windows. They instructed the victim to lie on the floor before stealing numerous packets of cigarettes. As this took place, a customer attempted to enter the store. The offenders approached the customer with one of them saying, "Come inside, we will save your life", before the other offender said, "We have a gun, just come in otherwise you will lose your life". In response, the customer fled. The offenders returned to the victim and demanded access to the cash register and stole about $400-$500 cash.
The offenders ran out of the store, with one of them returning seconds later to retrieve a knife which had been left by them on the counter. The offenders fled in a blue sedan described as being a Ford with yellow and black registration plates, possibly being driven by a third unknown person.
A short time after the offenders left, the victim discovered that two mobile phones belonging to him had also been stolen. The following morning one of those was recovered and seized for forensic testing. The second phone has not been recovered.
A review of CCTV footage recorded at the service station depicts the offenders travelling in a sedan with silver mag-wheels. The vehicle was said to be strikingly similar in appearance to the blue Holden Commodore SV6 sedan owned by Mr Amood. It is not possible to see the vehicle's registration due to the position and angle of the camera.
The second count on the indictment involved a robbery at the Speedway Service Station at North Ryde on 26 April 2014 (the North Ryde robbery). The Crown case was that Mr Amood and Mr Matonwal entered the service station armed with a meat cleaver, knife and crowbar and threatened the victim, Mr Syed, who was working alone at the store.
The first offender was described as 20-24 years old, of Middle Eastern appearance with an olive complexion, about five foot ten - six foot tall and of solid build. CCTV footage depicts him wearing a black hooded jumper with the hood covering his head, grey tracksuit pants and white sport shoes. He had disguised the lower part of his face with some type of material and was wearing disposable yellow gloves. This offender was armed with a meat cleaver that had a small round hole in the top corner of the blade and was carrying a grey sports bag. The height, build, age and cultural background of this offender is said to be consistent with that of Mr Matonwal.
The second offender was described as 20-24 years old, of Middle Eastern appearance and around five foot six to five foot seven inches tall. CCTV footage depicted him as being of thin to medium build and wearing a grey hooded jumper with the hood covering his head and light coloured pants. His face was covered with material. On the Crown case, he was wearing woollen gloves on both his hands. On my viewing of the footage, this offender was wearing white shoes with distinctive black writing along the sides and was wearing what appeared to be one woollen glove and one white plastic glove. The height, build, age and cultural background of this offender is said to be consistent with that of Mr Amood.
The offenders demanded access to the safe, which the victim was unable to open. The offenders turned off the store's interior lights and closed the motorised shutters fitted to the windows. The offenders instructed the victim not to move and threatened to kill him, at one point holding a knife close to his throat. The offender stole the victim's phone and his wallet containing about $500 cash and assorted personal and bank cards. It is alleged Mr Matonwal stole numerous packets of cigarettes and about $4,735 cash. As this took place, it is alleged Mr Amood unsuccessfully attempted to cut open a small safe located under the counter. Before leaving, the offenders stole a second mobile phone. The offenders ran out of the store and fled in a vehicle described as a dark Holden Commodore sedan bearing at least one yellow and black registration plate. The stolen phones were recovered and seized for forensic testing.
The third count on the indictment involved a robbery at the Westside Service Station at Kenthurst on 1 May 2014 (the Kenthurst robbery). It was alleged that the respondents, armed with a meat cleaver and a knife, threatened the victim, Mr Hisham, who was working alone at the store.
In this case, the first offender was described as about five foot seven inches tall and of large build. CCTV footage depicted him wearing a grey hooded jumper with the hood covering his head and a grey jacket over the top of the jumper, grey tracksuit pants with a white stripe down the outside of both legs, a black balaclava, disposable yellow gloves and distinctive white, green and black running shoes. The offender was armed with a large knife. The Crown alleges the height and build of this offender is consistent with that of Mr Matonwal. The second offender was described as about six foot tall. CCTV footage depicts him as being of medium build and wearing a red hooded jumper with the hood covering his head, dark grey pants, a black mask, disposable yellow gloves and white shoes with distinctive black writing on the sides. This offender was armed with a meat cleaver that had a small round hole in the top corner of the blade. The Crown alleges this offender is Mr Amood.
One of the offenders held the blade of their knife against the victim's neck. The other closed the service station front door. Both offenders shouted at the victim to shut the blinds. One of the offenders held a knife against the back of the victim's neck and said, "Where's the money. Where's the safe drop, I'll cut you down". The offenders stole numerous packets of cigarettes, $10 from the victim's wallet, his photo identification and about $2,830 cash from the register. At one point, one of the offenders punched the victim in the face. As this occurred, the offenders were disturbed by a customer attempting to gain entry and ran out of the store to a vehicle parked a short distance away.
Witnesses described the vehicle as being a blue Holden Commodore sedan bearing a NSW registration plate, which was later ascertained to be a stolen plate. CCTV footage shows the offenders were travelling in a blue sedan with silver mag-wheels. It is alleged this vehicle is strikingly similar in appearance to the blue Holden Commodore SV6 sedan owned by Mr Amood.
The fourth count on the indictment was a charge of going with face disguised with intent to commit a robbery (the North Ryde attempted robbery). It was alleged that on 5 May 2014, the respondents went to the Speedway Service Station at North Ryde with their faces disguised and wearing disposable yellow gloves. It is alleged the respondents had previously committed an armed robbery at this store on 26 April 2014 and as a result, the service station front doors were locked during the evening hours as a security measure.
The first offender was described as about six foot tall and of solid build. The Crown alleges that CCTV footage depicts him wearing a grey hooded jumper with the hood covering his head, a light coloured jacket over the top of the jumper, black pants, a black balaclava and disposable yellow gloves. It further alleges that CCTV footage depicts the second male as being of slim to medium build and wearing a red hooded jumper with a hood covering his head and dark long pants On my viewing of the CCTV footage, whilst it could be seen that one of the offenders was wearing a red hoodie and the other a light coloured hoodie and both were wearing dark pants, none of the other features alleged by the Crown were visible. Nor was the clothing sufficiently identifiable to be recognised as clothing worn by either of the offenders in the other counts on the indictment.
The offenders approached the front doors and attempted to enter the store but were unable to do so because the doors were locked. The offenders ran away towards Blenheim Road.
The fifth count on the indictment was another charge of armed robbery, which occurred approximately two hours later at 10.55pm (the Rouse Hill robbery). It was alleged the respondents entered the Pizza Hut store at Rouse Hill armed with a meat cleaver and knife and threatened two employees and demanded money.
In this case, one of the offenders was described as 185 cms tall and of large build. CCTV footage showed him wearing a grey hooded jumper with the hood covering his head. He was also wearing a light coloured "Champion" brand jacket over the top of the jumper, a black balaclava, disposable yellow gloves and black tracksuit pants with white stripes down the outside of the legs. He was armed with a large knife and was in possession of a black bag. The height and build of the offender is said to be consistent with that of Mr Matonwal. The second male was described as 175 cms tall and of muscular build. CCTV footage depicted him as being of slim to medium build and wearing a red hooded jumper with a white motif on the front, dark long pants and disposable yellow gloves that appeared to be worn inside out. This offender was armed with a meat cleaver. The Crown case is that the height and build of this offender is consistent with that of Mr Amood.
The offenders held knives to the victims' necks and demanded access to the safe. The offenders dragged the victims through the kitchen area of the store to where the safe was located, forced the victims to the floor and stole $800 from the safe and a mobile phone belonging to one of the victims. After doing so, the offenders ran out of the store and fled in a blue sedan, which the police allege was the blue Holden Commodore belonging to Mr Amood.
The Crown case is that the "Champion" brand jacket worn by the first offender is identical in appearance to the "Champion" brand jacket worn by Mr Matonwal during the St Ives robbery. It is also alleged that the red hooded jumper with the white motif on the front, worn by the second offender, is strikingly similar in appearance to a jumper found by the police in Mr Amood's bedroom during a search on 13 May 2014, executed pursuant to a warrant.
The sixth count on the indictment was the second charge of going with face disguised with intent to commit a robbery (the Ermington attempted robbery). It is alleged that at about 12.26am on Thursday 8 May, the respondents went to the Blue Star Service Station at Ermington with their faces disguised and wearing disposable yellow gloves. The service station was trading, but the station doors were kept locked as a security measure.
CCTV footage depicted the first offender as being of large build, wearing a grey hooded jumper with the hood covering his head, a light coloured "Champion" brand jacket, black tracksuit pants with white stripes down the legs, black balaclava, yellow disposable gloves and white shoes. On my viewing, the shoes were white, green and black running shoes. The Crown alleges that the clothing worn by this offender was identical to the clothing worn by one of the offenders who committed the two previous robberies. Due to the lack of visibility in the footage from the North Ryde attempted robbery, it is only accepted that the clothing was identical to that worn by one of the offenders in the Rouse Hill robbery. CCTV footage depicted the second offender as being of medium build and wearing a black hooded jumper with the hood covering his head, black tracksuit pants and yellow disposable gloves. This offender was carrying a black bag. From my viewing of the footage, it is also visible that the second offender was wearing white shoes with black writing along the side. The offenders pushed and pulled at the doors for a short period of time before leaving.
The seventh count on the indictment was another charge of armed robbery (the McGraths Hill robbery). It is alleged that on 9 May 2014, the respondents entered the BP Service Station at McGraths Hill armed with a meat cleaver and a knife and threatened the victim, an employee of the service station.
The first offender was described as about six foot tall and of solid build. CCTV footage depicts him wearing a grey hooded jumper with the hood covering his head and a light coloured "Champion" brand jacket over the top, a black balaclava, dark pants and disposable yellow gloves. The offender was armed with a meat cleaver that had a small round hole in the blade. The height and build of this offender is said to be consistent with that of Mr Matonwal. The clothing worn by him is said to be identical to clothing worn by one of the offenders who committed the three previous robberies. For the same reason as above, it is only accepted that this description applies to the previous two robberies. Furthermore, the CCTV footage indicates that the offender is not wearing identical pants, as there is no white vertical stripe on the pants worn by the first offender. The second offender was described as about five foot eight tall and of slim build. CCTV footage depicted him wearing a black hooded jumper with the hood covering his head, black pants and disposable yellow gloves. It is the Crown case that the height and build of this offender is consistent with that of Mr Amood.
CCTV footage recorded inside the service station shows that the first offender approached the victim and held a meat cleaver near his throat. The victim was told to sit on the floor or he would be killed. The first offender closed the store blinds and demanded access to the safe, while the second offender stole numerous packets of cigarettes. At some point, the victim escaped and locked the store's front doors trapping the offenders inside. They eventually escaped by kicking out a garage door located at the rear. CCTV footage recorded outside the service station shows the offenders were travelling in a blue Holden Commodore sedan with silver mag-wheels, strikingly similar in appearance to the blue Holden Commodore SV6 sedan owned by Mr Amood.
A black sports bag, a roll of silver duct tape and a cigarette lighter, which were believed to have been dropped by the offenders, were located inside the service station near the garage door. Mr Matonwal's DNA was identified on the roll of silver duct tape.
The eighth and final count on the indictment was a further count of going with face disguised with intent to commit robbery (the Dundas attempted robbery). The Crown case was that at about 10.10pm on Monday 12 May 2014, the victim completed his shift at the Shell Coles Express Service Station at Dundas, locked the store and walked to his vehicle. While the victim was standing next to his vehicle he noticed two males shouting and running towards him. He described them as having something white in or on their hands. The victim got into his vehicle and locked the doors.
The victim described both males as 165 to 175 cms tall, of medium build and said they spoke with a Middle Eastern accent. The Crown states that the CCTV footage depicts the first offender wearing a light coloured jacket, black balaclava and dark pants and the second offender wearing a dark hooded jumper with a motif on the front and light coloured/grey pants. The Crown alleges that the clothing worn by the offenders in this offence was identical to the clothing worn by the respondents when they committed the St Ives robbery less than an hour later. The CCTV footage depicts the men in poor lighting and from a reasonable distance. In my opinion, while the colours of the clothing indicated by the Crown are visible, details such as the motif and balaclava are not.
The offenders demanded that the victim open his car. The victim sounded his horn before starting the vehicle and driving away. He later reported the incident to police. The appearance of the vehicle seen on the CCTV footage in which the offenders drove away was said to closely resemble the appearance of Mr Amood's vehicle. On viewing the footage, I am not satisfied that the image of the car is sufficiently clear to be identified as a car resembling that owned by Mr Amood.
Separate to the charge on the indictment, the respondents were charged with armed robbery at the Caltex Service Station St Ives on 12 May 2014 (the St Ives robbery). Each of the respondents initially pleaded guilty to the charge, but Mr Matonwal was granted leave to withdraw that plea on the basis he only intended to plead guilty to attempted robbery.
The St Ives robbery occurred at about 10.55pm when the respondents, armed with a meat cleaver and a knife, threatened the console operator, demanding money and cigarettes. The offenders had disguised themselves with balaclavas and were wearing disposable rubber gloves. During the commission of the offence, the offenders were disturbed by police who drove into the service station and witnessed the offence. A siege ensued after the offenders refused to exit the service station. Around 12.05am on Tuesday 13 May, they exited the service station and were arrested.
An examination of the crime scene resulted in the discovery of a meat cleaver with a small round hole in the top corner of the blade and a kitchen knife, as well as the clothing and disguises worn by the offenders being recovered. The clothing included a distinctive light coloured "Champion" brand reversible jacket and black tracksuit pants with white stripes down the legs and weapons and clothing said to be identical in appearance to weapons and clothing used in the recently committed series of armed robberies. A blue Holden Commodore SV6 sedan belonging to Mr Amood and fitted with stolen registration plates was located in the car park adjacent to the service station. The sedan was seized and examined. Stolen NSW registration plates had been taped over the legitimate registration plates and the vehicle was found to contain disposable yellow gloves.
Additional evidence was obtained as a result of the execution of search warrants. I have set this evidence out below in dealing with the Crown's submissions.

The tendency and coincidence evidence the subject of the appeal

The Crown indicated that it proposed to seek to rely on the evidence of the St Ives robbery as tendency and coincidence evidence on all counts on the indictment and the evidence in relation to each count on the indictment as tendency and coincidence evidence in respect of the other counts.
It should be noted that the original indictment alleged three further counts of armed robbery, the evidence in respect of which was also relied on as tendency and coincidence evidence in respect of the other counts.
In a judgment delivered on 26 October 2015, the trial judge determined that the evidence was inadmissible as tendency and coincidence evidence. Following delivery of that judgment, an amended indictment was presented which deleted the three counts to which I have referred above at [38]. However, the trial judge ruled that evidence of the St Ives robbery and evidence on each count on the amended indictment were inadmissible as tendency or coincidence evidence on the other counts.
For convenience, I have set out as Annexures A, B and C to the judgment the amended notice of tendency evidence and coincidence evidence dated 28 October 2015 in respect of Mr Matonwal together with what is described as a Coincidence Chart in respect of each of the respondents. Similar tendency and coincidence notices were served on Mr Amood.

Judgments of the trial judge

The trial judge delivered two relatively brief judgments. In his first judgment, delivered on 26 October 2015, the trial judge stated that the matters relied upon as tendency or coincidence evidence were a common feature of armed robberies of the nature of those in question. He pointed out that the robberies took place at various times in the evening, ranging from 8.15pm to midnight, that in each case the robbers were armed and their faces disguised and that gloves were worn as were items of clothing commonly seen in the street.
However, the trial judge pointed to what he described as some significant differences. He noted that in some cases, the offenders wore balaclavas or a hoodie, whilst in others, their faces were obscured by t-shirts or similar material. He stated that in the case of the St Ives robbery, one of the offenders was not wearing a hoodie. He stated the wearing of balaclavas and hoodies or obscuring the face were common features of robberies of this nature.
The trial judge referred to the different coloured gloves worn by the offenders at the various robberies. He said the wearing of gloves was a common feature of this type of robbery.
The trial judge also pointed to the difference in the weapons used. He said the use of some form of easily accessible weapon such as a knife or meat cleaver is a frequent characteristic of robberies of the nature of those in question.
The trial judge also stated that the use of a sports bag or backpack to carry out the proceeds is common because of the ease with which it can be carried and because it does not attract attention. He also pointed out that the motor vehicle, probably a Ford or Holden, used by the offenders was also frequently seen in Sydney as was the type of clothing worn by them.
The trial judge also stated that the cumulative factors of the matters relied upon did not establish significant probative value because the matters relied on would be a factor in a very large number of armed robberies of service stations in Sydney.
In those circumstances, the trial judge ruled the evidence inadmissible as tendency or coincidence evidence. He stated that the evidence, in modified form, would be before the jury in any event.
Following that judgment, three counts on the indictment were deleted and two additional matters were relied upon. The first matter was the nature and quality of the threats made and the second matter was the fact that, in respect of the Pizza Hut incident, the unknown car referred to in the tendency and coincidence notice was substituted by reference to a blue sedan. In a judgment of 28 October, the primary judge stated, without elaboration, that this did not cause him to alter his opinion.

The appeal

The original notice of appeal sought to appeal from the ruling of the primary judge on 26 October, which related to the 11 counts on the first indictment. Following discussion at the hearing, an amended notice of appeal was filed, dealing specifically with the ruling of 28 October 2015 in respect of the remaining 8 counts on the second indictment.

The legislation

It is convenient to set out the relevant provisions of the Evidence Act 1995 (NSW) (the Act) relating to the admission of tendency and coincidence evidence: "55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. … 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. … 97 The tendency rule (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 unless: … (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. … 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: … (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 … 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (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 submissions

The Crown submitted that a decision on whether a judge erred in declining to admit evidence as tendency and coincidence evidence was to be determined by the application of principles set out in House v The King [1936] HCA 40; 55 CLR 499.
The Crown submitted the exercise by the trial judge of his statutory functions wholly miscarried. It was submitted that the particular failure was to consider all of the items of coincidence or tendency evidence as a whole. It was submitted that, by contrast, the trial judge considered each category individually and discounted each on the basis that they were typical or common features of armed robberies.
It was also emphasised by the Crown that the probative value had to be considered in light of other evidence to be adduced by the Crown. This was said to include: 1. During the course of the St Ives robbery the two offenders (accepted to be the respondents) went into a storeroom and changed and hid their clothes once they realised that police officers had stopped outside. Those items included: 1. A cream and grey reversible "Champion" brand jacket. The Crown alleges that this was similar to the jacket worn by the first offender in all of the counts on the present indictment bar the Regents Park robbery. More accurately, the first offender can be seen to be wearing such a jacket at the Kenthurst, Rouse Hill and McGraths Hill robberies and the Ermington attempted robbery. 2. Hoxley brand black track pants with two white stripes running down each side. The Crown alleges that these were similar to the pants worn by the first offender at the Rouse Hill and McGraths Hill robberies and the Ermington and North Ryde attempted robberies. In my opinion, such pants are visible in the footage from Rouse Hill and Ermington. 3. Two black balaclavas. 4. A blue t-shirt, allegedly similar to that used as a face covering by the second offender in the Regents Park robbery. 1. The Crown states that shoe imprints found at the McGraths Hill robbery were similar to the imprints of the size 10 Nike shoes which Mr Amood was wearing on arrest. This is incorrect. The police statement explicitly stated that Mr Amood's size 10 Nike shoes did not match the imprints at the scene of the McGraths Hill robbery. However, Mr Matonwal's size 12 Nike shoes, worn by him on arrest, did match the imprints at the scene. Furthermore, the shoes worn by the second offender, as depicted in the CCTV footage of the McGraths Hill robbery, appear to be white shoes with distinctive black writing along the side, similar to the Everlast shoes seized from Mr Amood's house. 2. The blue Commodore sedan owned by Mr Amood had yellow disposable gloves in the console. 3. The Nike shoes worn by Mr Matonwal on his arrest are said to appear to be the same as the type of shoes worn by the first offender in the Kenthurst robbery. I would note that they also appear to be the same as the shoes worn by the first offender in the Regents Park, Rouse Hill and McGraths Hill robberies and the Ermington attempted robbery. 4. At Mr Amood's premises, police located: a blue "Champion" hooded jumper, similar to that worn by the second offender at Regents Park; a red hooded jumper with a white motif on the front, similar to that worn by the second offender at Rouse Hill; and Everlast shoes which appear to be the same as the type of shoes worn by the second offender in the Kenthurst robbery. I would also note that similar shoes are worn by the second offender at the Regents Park, McGraths Hill and North Ryde robberies and at the Ermington attempted robbery. 5. At Mr Matonwal's premises, police located four separate items of yellow rubber gloves in the kitchen. 6. Kete Andrew, Mr Matonwal's girlfriend, will give evidence that during the period of the robberies, Mr Amood would come to their place in the evening in his blue Commodore and Messrs Amood and Matonwal would "just leave and generally return a few hours later with Oxycontin". In the weeks prior to their arrests, they had become "fixated on obtaining Oxycontin to feed their addictions [and t]his seemed to be the most important thing in their lives".
The Crown acknowledged that it bore the onus of satisfying the Court that the decision or ruling sought to be appealed from eliminates or substantially weakens the Crown case. It submitted that the effect of the ruling deprives the Crown of cogent evidence which would go to establishing the identities of the offenders.
In supplementary submissions, the Crown noted that although in its original submissions it was stated that each respondent had pleaded guilty to the St Ives robbery, Mr Matonwal successfully applied to withdraw that plea in circumstances where he believed his plea was to an attempted armed robbery. It was submitted this did not affect the strength of the appellant's argument. At the hearing of the appeal, counsel for Mr Matonwal accepted this to be the case.
Senior counsel for the Crown emphasised the importance of viewing the CCTV footage, stating it showed more clearly the clothing that each offender was wearing. She acknowledged that her coincidence case was stronger than her case on tendency evidence and made her submissions on that basis.
Senior counsel for the Crown submitted that in six of the armed robberies, including St Ives, one of the offenders was carrying a meat cleaver with a small hole in it and the other a knife. She stated that the silver of the knife and the hole in the meat cleaver could be seen in some of the CCTV footage.
Senior counsel for the Crown submitted, referring to the CCTV footage, that in every armed robbery except one, the larger person goes to the till and the smaller one deals with the attendant. She submitted that in a number of the offences, the footage shows the larger person is wearing black pants with two white stripes down the side. She submitted that although it might be true that lots of people wore such pants, on these occasions they were worn by a person who has the same height and build, in each case who happens to be committing an armed robbery and who happens to be holding a meat cleaver or a silver knife.
Mr Amood submitted that the St Ives count was fundamental to the inquiry because the question as to the suggested probative value in regard to any comparative event necessarily looks to that count and "individually the comparative event or events sought to be the subject of the tendency reasoning". He pointed out that the St Ives robbery took place on the North Shore whereas all the other robberies were in Sydney's west or northwest.
Mr Amood submitted that no error was disclosed in the evaluation by the trial judge. He submitted that opinions in relation to tendency and coincidence usage may differ between reasonable minds. He described the decision of the trial judge as highly rational and that the trial judge "clearly addressed the leading criteria of similarity and difference".
In relation to tendency evidence, Mr Amood submitted that it was not the purpose of s 97 to admit tendency evidence by reference to a lower test than that going to the admission of circumstantial evidence. He made the following submission: "A tendency event comprises an invitation by the Crown to a jury to find the tendency event as an intermediate fact from which to infer the tendency or state of mind. But consideration as to the intermediate fact must be based upon relevant evidence which is capable of rationally affecting the probability of a fact in issue. The generalisation of specific matters through the presentation of a number of events which do no more than reflect the elements of armed robbery (and matters common to the incidental purposes of an armed robbery) do not, it is submitted, speak to the requisite 'significant probative value' enabling the uses of the evidence as sought."
Mr Amood also submitted that coincidence evidence is an invitation to conclude, in drawing an inference of guilt, that the least probable explanation is chance. He submitted the relationship between the St Ives incident and the remaining counts and the relationship between the counts themselves was "deficient" to attain significant probative value. Once again he submitted there was no identified error in the House v The King sense.
Mr Amood also submitted that the Court should exercise restraint in reviewing the decision of a judge who had many years' experience in presiding over a criminal trial.
Counsel for Mr Amood pointed to the fact that the trial judge, at the conclusion of his judgment, stated that he considered the cumulative effect of the matters relied upon by the Crown.
Mr Matonwal adopted both the oral and written submissions made on behalf of Mr Amood.

Consideration

As the appeal is brought under s 5F(3A) of the Criminal Appeal Act, it is necessary for the appellant to demonstrate that the ruling by the primary judge declining to admit the evidence in question as tendency or coincidence evidence substantially weakens the prosecution case. It is to be noted that if that condition is satisfied, no leave is required to bring the appeal.
In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, Spigelman CJ, with whom Simpson and Adams JJ agreed, stated that the Court should determine the question of whether a ruling substantially weakens the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. He stated it was not desirable for the Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations: at [40]. His Honour described the approach as similar to that which arises in determining the probative value of the evidence for the purpose of s 137 of the Act: at [39]. In particular, he stated that this approach involves assessing the probative value of the evidence, without taking into account issues of credibility and reliability, except where those issues are such that it would not be open to the jury to conclude that the evidence could ultimately affect the assessment of the probability of the existence of a fact in issue: at [61]-[65]. His Honour's approach was held to be correct by a majority of the High Court in IMM v The Queen [2016] HCA 14; 90 ALJR 529 at [52] (IMM). It should be noted that, having regard to the nature of the evidence sought to be tendered as coincidence or tendency evidence in the present case, no issue of credibility or reliability arises.
The respondents did not contest that the refusal to admit the evidence substantially weakened the prosecution case. In my opinion, they were correct not to do so. The evidence, if admitted, either as tendency or coincidence evidence, would, for the reasons subsequently set out, have significant probative value.
Both parties appeared to accept that the appellate review was to be carried out in accordance with the principles in House v The King. This was consistent with the view expressed by Simpson J, with whom Schmidt J agreed, in DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 and, at least in relation to appeals from interlocutory judgments under s 5F of the Criminal Appeal Act (including an appeal from an evidentiary ruling under s 5F(3A)), that of Spigelman CJ and Allsop P, with whom Kirby J agreed: at [56]-[60], [70] (Spigelman CJ), [79]-[81] (Allsop P), [151], [157], [178] (Simpson J), [211] (Kirby J), [212] (Schmidt J). As I am of the opinion that the trial judge did fall into what might be described as House v The King error, it is not necessary to deal with this matter any further.
It is convenient to deal first with the admissibility of the evidence as coincidence evidence. In DSJ v R [2012] NSWCCA 9; 84 NSWLR 758 (DSJ), Whealy JA, with whom the other members of the Court agreed, stated that the first question to be asked was whether the evidence was relevant, that is, whether, having regard to the provisions of s 55 of the Act, it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings: at [53]. In his judgment, Whealy JA, at [62], cited with approval, subject to one relevant qualification, the following passage from the judgment of Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [139]: "[139] … The analysis is no different in the case of evidence tendered under s 98. The principles are these: (i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted."
The qualification was that, in conducting the evaluative and predictive process referred to in subpar (v) of the passage, the court may have regard to the possibility that from a consideration of all the Crown's evidence (including the coincidence evidence), there emerges a real possibility of an explanation inconsistent with guilt and then the court must ask whether that possibility substantially alters its view of "the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue": at [79]-[80]. In my judgment in DSJ, I explained that the task is to be performed having regard to all the evidence sought to be relied on by the party seeking to tender the coincidence evidence: at [10], Allsop P and McCallum J agreeing.
In R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487, Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, summarised the approach to be adopted as follows: "[30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are: that there is evidence capable of establishing the occurrence of two or more events; and that there is evidence capable of establishing similarities in the two or more events; or that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred; that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred. [31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows: 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 of the events; the fourth step is to determine whether 'reasonable notice' has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); 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 might have: R v RN [2005] NSWCCA 413, and a balancing of the two."
Further, as was pointed out in R v MR [2013] NSWCCA 236, it is necessary to give consideration to the evidence sought to be tendered as a whole, rather than separate consideration of each particular circumstance relied upon: at [9]-[10] (Schmidt J), [78]-[79] (Beech-Jones J).
The amended notice of coincidence evidence, which is Annexure B to the judgment, states that the events the subject of the proposed evidence are the offences grounding the 8 counts in the indictment and the St Ives robbery and that it is tendered to prove the respondents' participation in the robberies. The similarities in the robberies were summarised in the coincidence chart, which is Annexure C to this judgment. Relevant similarities are set out in par [5] of the coincidence notice.
The trial judge dealt with each of the individual similarities separately. Although I have pointed out (see above at [46]) that he stated that the cumulative factor did not establish significant probative evidence, his conclusion on this point is not supported by any analysis. However, even if he did take into account the matters relied upon on a cumulative basis, it is clear that in reaching his conclusion, he did not take account of the other evidence relied upon by the Crown. I have set out that evidence above at [53]. It is evident that these matters are of relevance in considering whether the proposed coincidence evidence has significant probative value. The trial judge, in my respectful opinion, was in error in failing to take that evidence into account.
It is thus necessary for this Court to consider whether the evidence should be admitted as coincidence evidence. Although little attention was paid to this matter, it seems to me that the evidence in question was relevant to each count. The similarities, for example, in the size of the offenders compared to the respondents, the weapons used, the means of disguise, the similarity of clothing worn and the vehicle used are relevant in the sense described in s 55 of the Act as establishing that the respondents, who admittedly were involved in the St Ives robbery, were involved in the other robberies in question. These factors were also relevant in establishing that the same persons committed the robberies, a matter which could form the basis for an inference that the offenders were the respondents.
However, it is necessary to show that the evidence had significant probative value. In IMM, the majority, citing J D Heydon, Cross on Evidence (10th ed 2015, Lexis Nexis) at 763 with approval, made the following comment concerning significant probative value, at [46]: "[46] Cross on Evidence suggests that a 'significant' probative value is a probative value which is 'important' or 'of consequence'. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding."
Although these comments were made in the course of considering s 97(1)(b) of the Act, they apply with equal force to the meaning of significant probative value in s 98(1)(b).
It is convenient first to consider whether the similarities between the St Ives robbery and the charged offences lead to the conclusion that the evidence in relation to that robbery has significant probative value in proving that the respondents committed the other offences. I have considered this issue with the benefit of having reviewed the CCTV footage for each offence.
The respondents were apprehended whilst in the course of committing the St Ives robbery. The evidence in relation to this robbery included not only the CCTV footage but also the actual items of clothing worn by the respondents.
The CCTV footage shows that the weapons used were a meat cleaver with a hole in it and a black handle and a silver knife with a black handle. A review of the CCTV footage of the other robberies shows that identical weapons were used at the robberies at Regents Park, North Ryde, Kenthurst and Rouse Hill.
In addition, yellow gloves were used by both of the offenders at Regents Park, Kenthurst, Ermington and McGraths Hill, and by one of the offenders at the Rouse Hill and North Ryde robberies. As I pointed out, four pairs of yellow gloves were found at Mr Matonwal's premises and yellow gloves were found in the console of Mr Amood's blue Commodore sedan.
In addition, the jacket worn by Mr Matonwal in the St Ives robbery appears similar to that which was worn by the first offender at Kenthurst. This jacket was seized, and when reversed, it can be seen to be the "Champion" brand jacket worn by the first offender in the McGraths Hill and Rouse Hill robberies and Ermington attempted robbery. The shoes worn by Mr Matonwal were of similar appearance to those worn by the first offender at the Regents Park, Kenthurst, Rouse Hill and McGraths Hill robberies and the Ermington attempted robbery.
Unlike the robberies to which I have referred above, the only weapon clearly depicted in the CCTV footage at the McGraths Hill robbery was a meat cleaver with a hole and a black handle. However, once again, yellow gloves were used and the same "Champion" brand jacket was worn by the first offender. Further, shoe imprints similar to the imprint of the Nike shoes worn by Mr Matonwal on arrest were found at the site of the McGraths Hill robbery. In addition, silver duct tape found in the McGraths Hill Service Station contained Mr Matonwal's DNA.
It should also be noted that in each of the robberies to which I have referred, the offenders, as depicted on the CCTV footage, seem to be of similar height and build to the respondents, as depicted in the CCTV footage of the St Ives robbery.
In these circumstances, in my opinion, the similarities between the St Ives robbery and the robberies at Regents Park, Kenthurst, Rouse Hill, McGraths Hill and North Ryde means that the evidence of each of the robberies would have significant probative value in establishing that each of them was committed by the respondents.
Although the position is not as clear, I am of the view the evidence relating to the Ermington attempted robbery has significant probative value in proving that the respondents committed the robberies I have referred to above at [86]. The Ermington attempted robbery occurred one day before the McGraths Hill robbery and three days after the Rouse Hill robbery. On each occasion similar gloves, shoes and distinctive "Champion" brand jacket with a grey hoodie underneath were worn by the first offender.
However, I am unable to reach the same conclusion in respect of the attempted robberies at North Ryde or Dundas. Whilst the CCTV footage of both offences depicts the offenders wearing jackets and pants which bear a similarity to the jackets and pants of the offenders in robberies committed later that night (the Rouse Hill and St Ives robberies respectively), it does not seem to me that that similarity, without more, means the evidence of those offences would have significant probative value in respect of the other offences. It does not seem to me that the fact that the motor vehicle used in the Dundas attempted robbery appears possibly to be similar to that used in the other robberies leads to a contrary conclusion.
In the result, the evidence of the St Ives robbery, the evidence of the Regents Park robbery (Count 1), the North Ryde robbery (Count 2), the Kenthurst robbery (Count 3), the Rouse Hill robbery (Count 5), the Ermington attempted robbery (Count 6) and the McGraths Hill robbery (Count 7) are admissible as evidence on each of these counts having significant probative value for the purpose of s 98 of the Act. However, the trial judge was correct in ruling that the evidence of the North Ryde attempted robbery (Count 4) and the Dundas attempted robbery (Count 8) was inadmissible as coincidence evidence on the other counts.
There was no contention that s 101 of the Act operated to exclude the evidence.
Further, as the evidence has significant probative value, it follows that its exclusion substantially weakens the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act.
However, I do not think that the evidence on each count is admissible under s 97 of the Act to show the tendencies referred to in the amended tendency notice, which is Annexure A to this judgment. For the evidence in question to be used as tendency evidence, it would need to be established beyond reasonable doubt that the evidence in respect of each robbery, which I have outlined above, not only showed that there was a tendency for some persons to commit robberies with each other whilst, for example, wearing gloves and using particular sorts of weapons, but also that the persons committing the robberies were the respondents. Even if it was proved beyond reasonable doubt that one of the robberies was committed by the respondents, that in my view would not establish a tendency to commit other robberies or the tendencies set out in the amended tendency notice.

Conclusion

In the result, the appeal should be allowed in part. I would make the following orders: 1. Appeal allowed in part. 2. Rule that the evidence referred to in par 3 of the amended notice of coincidence evidence, dated 28 October 2015, so far as it relates to the armed robbery at the Caltex Service Station St Ives on 12 May 2014 and the offences the subjects of Counts 1, 2, 3, 5, 6 and 7 in the indictment, presented against the respondents on 28 October 2015, is admissible as coincidence evidence on each of those counts. 3. Otherwise dismiss the appeal. ANNEXURE A (1.10 MB, pdf) ANNEXURE B (1.55 MB, pdf) ANNEXURE C (4.72 MB, pdf)
ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Bathurst CJ. I agree with the reasons of the Chief Justice and with the orders his Honour proposes.
MCCALLUM J: I agree with the orders proposed by the Chief Justice, for the reasons his Honour has stated. In reaching that conclusion, I have reviewed the material relied upon by the Crown, including the CCTV footage. My review of that material has persuaded me that, while a number of the features of the evidence relied upon by the Crown as coincidence evidence are common features of offences of this kind, their combination and sequence in this case combine to reduce the prospect of coincidence exponentially.

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