Selby v R

Closing addresses and the judge's summing up

1. In its closing address, the Crown submitted that the first issue was whether the jury was satisfied beyond reasonable doubt that Mr Selby was the man on the second occasion; if not, they had to acquit. The Crown then made the following submission: "You must be satisfied that it was the accused on 15 October 2012. If you're satisfied with that aspect, then the Crown must prove to you beyond reasonable doubt that it was the accused on 6 July 2012 and the way in which the Crown says you would be satisfied beyond reasonable doubt as to that, is really twofold. Firstly, Mr Singh, he gives evidence that it was the first person. I'll tell you why, in my submission, there's some reliability in what he said but secondly, you'd also look at all the circumstances surrounding the two offences; the 15 October and 6 July offences. Look at the circumstances in which they occurred, and look at the acts that occurred on both occasions. It'd be my submission to you that it is highly improbable that that would occur as a coincidence. The manner in which it occurred on both occasions is just so improbable that it'd be a coincidence. That you could be satisfied that it was in fact the same person, and that supports Mr Singh's evidence. Clearly there are always difficulties with identification and you'll hear directions from his Honour and my friend saying that, and it's absolutely right. People have been convicted regularly on mistaken identification, it happens, there's always a danger. Is this the right person and if you look at some people and think is that them and then you realise, you'll have a better look, it's not them. There's always a danger but in this case the Crown's not relying solely on what Mr Singh says, [it] is also relying on that coincidence evidence, and that is the circumstances, the acts that occurred, the circumstances in which they occurred on both of the occasions to allow you to assess the evidence of Mr Singh as well as to whether it's reliable."
2. The trial judge's summing up occupied 27 double-spaced pages of transcript. Pages 11-13 included a direction as to coincidence evidence, as to which no objection was taken. That aspect of the summing up involved his Honour reading verbatim from a written document of 11 pages (MFI 5) which was provided to the jury at that point. It had previously been provided to the Crown and the defence, who had an opportunity overnight to comment on it, and who exercised that opportunity. The relevant passage is as follows: "COINCIDENCE EVIDENCE As should be apparent to you, the accused is charged only with the offence stated in the indictment. You have before you evidence that the Crown relies on as establishing that he committed that offence. It consists of the words or actions attributed by Mr Singh to the man who attended his premises on 6 July 2012, the date charged. However, as part of its case against the accused, the Crown has led evidence as to what it says are significant similarities between the words, actions and appearance of the man who attended Mr Singh's premises on 6 July 2012 and the words, actions and appearance of the man who attended the same premises on 15 October 2012. As I have said, I shall specify these similarities when I sum up the Crown's case for you. That evidence is before you because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that a jury would be satisfied that the person who did one act or set of acts must have done the others. That is to say, there is such a significant similarity between the acts and the circumstances in which they occur that it is highly improbable that the events occurred simply by chance, that is, by coincidence. The improbability of two or more events occurring by chance, or coincidentally, may lead to a conclusion that an accused person committed the acts that are the subject of the charges. I have said 'charges' there, ladies and gentlemen; it should just read 'charge.' In this case, the Crown says that, provided that you are satisfied that the accused was the person who attended Mr Singh's premises on 15 October 2012 and made certain threats against him, then those acts and the circumstances in which they were done were so similar to the acts alleged in the indictment that you would conclude beyond reasonable doubt that the accused must have committed the offence with which he has been charged. The evidence of the pattern of behaviour can only be used in the way the Crown asks you if you find two matters, firstly, that the accused did the other acts and, secondly, that they are so similar to the acts giving rise to the charge that you find that it is highly improbable that both acts were committed by a different person. If you accept those two matters then you can use that evidence, together with the other evidence in the Crown's case, to be satisfied beyond reasonable doubt that the accused committed the acts giving rise to the offence charged in the indictment. However, this is the only way that you can use the evidence of other acts. You cannot reason that, because the accused may have committed the other acts, he is the type of person who will commit criminal activity generally, or that he is a person who is likely to have committed the offence charged. The evidence is not placed before you for that type of general reasoning. You cannot punish the accused for other conduct attributed to him by finding the accused guilty of the charge in the indictment."
3. Pages 20-22 of the transcript of the summing up contain the trial judge's summary of the Crown case, and pages 22-25 summarise the defence case. The focus of the submissions on appeal was on that part of the summary of the Crown case where the trial judge described the way the Crown said coincidence evidence could be used. This passage was not contained in MFI 5 (the trial judge completed reading from it at p 19 of the transcript). The passage is as follows: "The Crown says that Mr Singh was a reliable witness who was able to recall in detail the person that he saw on each occasion and provided a detailed description of the person's appearance and clothing. Mr Singh was, on both occasions, situated in close proximity to the male and described on 6 July 2012 having a conversation with the male that went for several minutes. On 15 October 2012 he describes being roughly 2 to 3 metres away from the male and looking directly at him. Mr Dhaliwal confirmed that Mr Singh was well disposed to see the male. The Crown says that Mr Singh gave evidence that he immediately recognised the person on 15 October 2012 as the same person on 6 July 2012. He immediately said to Mr Dhaliwal that this was the same person. He also told this to police immediately on the triple-0 phone call. The Crown submits that the detail and the immediate recognition would give you confidence that you would accept the evidence of Mr Singh. To corroborate the evidence of Mr Singh, the Crown relies on the coincidence evidence, that is, the similarities in the two events and the circumstances show that it is improbable that it would be two separate individuals. A small black gun was produced on both occasions. Hands were in the pockets of the jacket and a small black gun was produced from the jacket on both occasions. Threats were made on both occasions, similar clothing on both occasions, jacket, track pants, sunglasses, hood or cap. The events occurred at a similar time of day and three months apart, same location, same victim, approaches the complex from the same direction and enters through precisely the same point, similar walk, one hand swinging, one appear to be in the pocket consistent with holding a gun. The Crown says that there was no demand made on the second occasion as there was no opportunity for the demand to be made as the male was locked out of the premises. The Crown says, because of the similarities in both the circumstances of the incidents and the actions of the person, that it is highly improbable that it would be a coincidence and that it supports Mr Singh's evidence that the person he saw on each occasion was the same person. The Crown says that you would be satisfied beyond reasonable doubt that it was the accused and that the elements have been proved."
4. The passage referring to corroboration of the evidence of Mr Singh, which is relevant to ground 1 of the appeal, is emphasised above.
5. At the conclusion of the summing up, the trial judge asked counsel if there was anything they wished to raise, and neither the Crown nor counsel then appearing for the applicant said there was anything they wished to raise.

Relevant provisions of the Evidence Act

1. Sections 95, 98 and 101 of the Evidence Act are as follows: "95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 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." Section 101 refers to "coincidence evidence", which is defined in the Dictionary to mean "evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection."
2. It is convenient to address ground 2 first.

Ground 2

1. The second ground invited this Court to have regard to the dissimilar personal characteristics between the two offences, notably that: 1. The person on 6 July was right-handed, whereas the person on 15 October was left-handed, 2. The person on 6 July had a ginger goatee while the person on 15 October was clean-shaven, 3. The person on 6 July appeared to have a speech impairment which was not apparent on 15 October, and 4. The person on 15 October was said to look "like a Lebanese".
2. The applicant relied upon a passage taken from R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [79], quoted in Saoud v R [2014] NSWCA 136 at [45]: "The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities. Section 98 provides in terms that two or more events occurring is not admissible to prove that a person did a particular act, 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, the evidence has significant probative value." (Emphasis in original.)
3. The applicant submitted that although a "striking similarity" was not required under s 97, "by contrast, coincidence evidence is 'based upon similarities'". The submission proceeded: "in circumstances where similarities were outweighed by significant dissimilarities, it is posited that s 98 was not engaged, as the matters of similarity did not rise above limited probative value."
4. The consequence was that it was submitted that the trial judge was not entitled to direct the jury to adopt coincidence reasoning.
5. There are a number of threshold difficulties with this submission.
6. The first is that the evidence was adduced pursuant to the ruling of the trial judge which was not challenged. There is a tension between the unchallenged ruling that coincidence evidence be adduced, and the challenge to the trial judge giving a direction as to the proper use of that evidence by the jury. If the coincidence evidence were documentary, it is difficult to see how such a ground could be maintained without challenging the ruling. However, and perhaps with this in mind, Mr Selby made something of the fact that Mr Singh's evidence at trial as to what the man told him in October was less extensive than his evidence on the voir dire.
7. A second difficulty is that it is not to the point merely to identify various dissimilarities. One way of explaining why this is so is to observe that one incident occurred on a Monday, the other on a Friday. That particular dissimilarity has no bearing whatsoever on the process of inferential reasoning that it permitted.
8. The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence.
9. This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded "[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference." The same point was made in Page v The Queen [2015] VSCA 357 at [59]: "[O]nce the identified similarities can be said to raise the improbability of coincidence - and hence give the evidence its probative value - the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position."
10. The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. In El-Haddad the reasons continued: "True it is that relevant dissimilarities may dilute the probative value of the evidence: see for example the quite different tendency evidence considered in Sokolowskyj v R [2014] NSWCCA 55 at [41], where the 'marked dissimilarity' was summarised as follows: 'On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant's actions were "passive". Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.'"
11. The problem with this ground is that the dissimilarities in appearance between voice and mannerism of the man who appeared in July and in October do not undercut the improbability that the same victim was targeted for a similar offence at the same premises in a relatively short period of time by different individuals. For example, if there were evidence that the man in July was an amputee, but the man in October was able-bodied, that would materially diminish the probative value of coincidence reasoning. But a difference in an orange goatee, or an apparent voice defect, or the hand in which the gun was being held, does not materially alter the unlikelihood of Mr Singh being threatened twice at his premises by two different men.
12. It was amply open to the trial judge to conclude that coincidence reasoning was available to the jury. No error has been demonstrated. We do not consider that there was error in the trial judge permitting the jury to reason based on the improbability of two different men threatening Mr Singh at the same premises in July and October 2012.
13. Assuming favourably to the applicant (but without deciding) that in light of the objection in the voir dire r 4 of the Criminal Appeal Rules does not apply, there should be a grant of leave, but the appeal must be dismissed.

Ground 1

1. In support of the first ground, the applicant distinguished between using circumstantial evidence to bolster the reliability of identification evidence, which was said to be impermissible, and using circumstantial evidence in combination with identification evidence in order to prove guilt. This was said to flow from R v Razzak [2004] NSWCCA 62. The submission was made that the authorities demanded "a strict quarantining of different forms of evidence" in cases of identification. The applicant submitted that Razzak was authority for: "the assessment as to the reliability of identification evidence to be dealt with or not bolstered by reference to circumstantial evidence, coincidence reasoning and the basic tenet being it will be illogical for there to be an assessment of the reliability of the circumstances as to whether or not for example the person had sufficient time to make recognition by virtue of then introducing in terms of this assessment as to the reliability the other evidence in the case. The distinction is a fine one but in the context of identification evidence and the need for there to be strict caution, distinction is an important one."
2. Razzak was also a case where the only issue was identity. In Razzak at [25], Levine J, with whom O'Keefe and Bell JJ agreed, observed that it was common ground that other evidence could not be used to "bolster" the flawed "resemblance evidence" of a witness. His Honour added "[a]s a matter of logic that simply could not occur. Mr Valu's flawed 'resemblance evidence' would always have that quality".
3. Levine J returned to the point at [28], saying that: "It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct."
4. Finally, his Honour reiterated the point at [36]: "Further, as I have remarked earlier in these reasons, the material tendered by way of videotape and still photographs could only be tendered as circumstantial evidence which, with the flawed resemblance evidence could 'bolster the Crown case' on the issue, and it being the only issue, that it was the accused who stabbed the victim. It cannot bolster the victim's evidence touching upon the identity of the person who stabbed him. It goes to being part of the Crown case as a whole."
5. The distinction between using other evidence to bolster identification evidence, as opposed to going to the strength of the Crown case as a whole, was applied in R v Winters [2010] SASC 100 at [33] (Nyland, White and Layton JJ).
6. There are two separate reasons why this ground must fail.
7. The distinction made by Levine J in Razzak may be significant if, as was the case in Razzak, there is evidence which falls well short of "positive identification" and where the issue is admissibility. That is not this case. Mr Singh was under no doubt that he saw the same man twice. Moreover, there was no dispute in the present appeal that all of the evidence was properly before the jury.
8. Thus, there was never presented to the jury any issue of using coincidence reasoning to strengthen weak identification evidence. Mr Singh was unequivocal, both on his triple-O call, and at the trial. He may of course have been mistaken, and whether his evidence, together with all the other evidence in the case, satisfied the jury to the criminal standard was the ultimate issue for the jury. But this was never a case where the forbidden process of "staged" reasoning would apply.
9. This was after all a relatively straightforward trial. It was made still more straightforward by the approach adopted by the Crown, inviting the jury to acquit unless they were persuaded beyond reasonable doubt that Mr Selby was the man who intimidated Mr Singh on 15 October, and then inviting them to evaluate Mr Singh's evidence in light of, inter alia, the coincidence reasoning, to determine whether Mr Selby had demanded money with menaces on 6 July. It is against that background that the question of the adequacy of the trial judge's directions falls to be assessed.
10. The second reason why this ground must be rejected is that, even taking the applicant's submissions at their highest, on no view does the summing up by the trial judge, fairly read, violate the distinction identified in Razzak.
11. The complaint is based upon the use of the word "corroborate" once in the summing up. As counsel candidly and properly acknowledged during the hearing of the appeal, if the words "to corroborate the evidence of Mr Singh" had not been said, no objection in this respect could have been taken to the balance of the sentence.
12. The summing up must be read as a whole. When addressing a complaint as to a jury direction, it is insufficient to point to sentences - or, as in this case, parts of a sentence - in isolation. The position was recently described by Porter J, with the agreement of Wood and Pearce JJ, in Lin v Tasmania [2015] TASCCA 13 at [108]: "[I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: R v Ho (2002) 130 A Crim R 545 at [32]; R v Daniel (2010) 207 A Crim R 449 at [25]; R v Thomas [2015] SASCFC 55 at [79]. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: R v Calides (1983) 34 SASR 355 at 357."
13. When the summing up is read as a whole, we are not satisfied that the jury would have approached their task of assessing the coincidence evidence as bolstering the identification evidence of Mr Singh, for these reasons.
14. First, to do so would have been contrary to the direction on coincidence evidence earlier given by the trial judge, in relation to which no complaint was made on appeal. It is to be recalled that that direction was also provided to the jury in written form (MFI 5), and it is quite plain that the jury would have had greater regard to the written document, rather than what they remembered of the oral direction, when assessing the Crown case. As Simpson J said of the effect of a written direction in Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]: "[I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions."
15. Secondly, there were the Crown submissions themselves, reflecting as they did the way in which the Crown had cast its case before the jury. They reinforced the general thrust of the summing up, which was that coincidence reasoning could be used to support the conclusion of guilt, in addition to Mr Singh's evidence.
16. Thirdly, the balance of the summing up correctly reiterated that the jury was invited to use coincidence reasoning to support the ultimate conclusion of guilt.
17. Fourthly, we have regard to the absence of complaint at the time by trial counsel, which supports the conclusion that it was not thought that the words had a material impact upon the jury's appreciation of its task. It is well settled that "a failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy": R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; Tekely v R; Nagle v R [2007] NSWCCA 75 at [89]; ARS v R [2011] NSWCCA 266 at [148]; Petroulias v R [2014] NSWCCA 108 at [98].
18. Fifthly, the failure to object may reflect the fact that although "corroborate" is laden with connotation to a criminal lawyer, it is a word which would not be understood by a lay jury in the same way. The meaning that it bore depends on the audience (a jury) and the issues which the jury was to determine. As noted above, there was no occasion for the jury to engage in staged determination of issues of fact involving corroboration in any technical sense.
19. Rule 4 of the Criminal Appeal Rules applies to this ground, no objection having been made at the trial. It is trite that r 4 is not "some mere technicality that may simply be brushed aside": R v Germakian (2007) 70 NSWLR 467; [2007] NSWCA 373 at [10]. The Court added at [13]: "[L]eave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: R v Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported), at 7, followed in R v DH [2000] NSWCCA 360: '...unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level'."
20. We are not persuaded that the impugned direction would have deflected the jury from the task which had repeatedly been given to them, and which was reiterated to them shortly thereafter by the trial judge. Still less is it established that there has been a departure from the essential requirements of the law that goes to the root of the proceedings, such as to warrant a conviction being set aside on a point not taken at trial.
21. For those reasons, the requisite leave to appeal required by r 4 should be refused.

Orders

1. The Court's orders are:
2. To the extent necessary, grant leave to appeal, confined to ground 2 of the notice of appeal supplied to the Court on 27 February 2017, and otherwise refuse leave.
3. Appeal dismissed.

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