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Court of Criminal Appeal 17 December 2003

R v Mason

[2003] NSWCCA 331

Also reported as 140 A Crim R 274
Assault & violenceTheft & property
CRIMINAL LAW APPEAL ON CONVICTION FOR THEFT

Citation: R v Mason [2003] NSWCCA 331
Court: NSW Court of Criminal Appeal
Date: 17 December 2003
Judge(s): Tobias JA; Howie J; Shaw J

Background

The appellant was convicted by a jury in the District Court of robbery with an offensive weapon, following an armed robbery at a Video Ezy store in Woodcroft, western Sydney, on 3 August 1999. Two men entered the store, one producing a screwdriver and demanding the till be opened, before grabbing Nintendo games and fleeing. Witnesses described the first robber as a Pacific Islander of solid build; the two men were seen leaving in a silver Holden Commodore.

The central issue at trial was identification. The Crown gave notice under the Evidence Act 1995 of its intention to rely on tendency and coincidence evidence, specifically evidence of two other robberies allegedly committed by the appellant on the same day and two days later, each involving a dark-skinned man of similar description and the same silver Holden Commodore (registration KHI 443). That vehicle was found with the appellant inside it when he was arrested on 5 August 1999.

The trial judge admitted the coincidence evidence. The appellant was convicted and sentenced to three years imprisonment with a non-parole period of two years and three months. He appealed against conviction only.

  • Whether the trial judge erred in admitting tendency and coincidence evidence under sections 97, 98, and 101(2) of the Evidence Act 1995.
  • Whether the coincidence evidence had sufficient probative value to substantially outweigh its prejudicial effect on the appellant, as required by section 101(2).
  • Whether any identified errors or misapprehensions by the trial judge in his assessment of the evidence undermined the lawfulness of the admission ruling.

Decision

Tobias JA (with Howie J and Shaw J agreeing) dismissed the appeal. The court examined the circumstances of the three robberies in detail. Each involved a dark-skinned Pacific Islander or Maori man, a screwdriver as a weapon (in two of the three incidents), and the same silver Holden Commodore registration KHI 443. The vehicle was found with the appellant in the front seat two days after the Video Ezy robbery.

A question arose as to whether the trial judge had been operating under an error regarding certain aspects of the evidence, specifically whether he had overlooked Detective Keating's evidence about the co-offender (Errington) who was arrested alongside the appellant. The trial judge had later expressed, some six months after admitting the evidence, that he might have excluded it had he been aware of certain matters.

Tobias JA concluded that the trial judge had not in fact been under any material erroneous impression when he admitted the evidence on 1 May 2002. Even accepting that the trial judge may have been mistaken in some respects, the court held that the coincidence evidence was properly admitted as a matter of law. The absence of a description of Errington matching the second robber did not reduce the probative value of the evidence to the point where it would fail the section 101(2) test. If the trial judge had concluded otherwise, he was being "overly conservative."

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • Under section 101(2) of the Evidence Act 1995, coincidence evidence adduced by the prosecution against a defendant is only admissible where its probative value substantially outweighs any prejudicial effect. The Court of Criminal Appeal confirmed that this threshold was met where multiple robberies shared a highly distinctive common feature: the same stolen vehicle with the same registration number.
  • Striking similarity in the mode of offending and the identifying features across separate incidents can collectively satisfy the significant probative value test under sections 97 and 98, even where no single piece of evidence is conclusive.
  • A post-ruling indication by a trial judge that he might have decided differently had he been fully aware of all matters does not automatically render the original admission ruling erroneous. The appellate court assessed the correctness of the admission ruling on the evidence actually before the trial judge at the time it was made.
  • No error was established merely because a description of a co-offender was not in evidence. The court held that the absence of such corroborating detail did not fatally undermine the probative value of the coincidence evidence already before the trial judge.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that appellate courts will assess whether coincidence evidence was lawfully admissible as a matter of law, not simply defer to any later reservations expressed by the trial judge.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97(1), 98(1), 101(2)

Cases:
- R v Ellis [2003] NSWCCA 319
- Pfennig v The Queen (1995) 182 CLR 461
- Hoch v The Queen (1988) 165 CLR 292
- R v Lock (1997) 91 A Crim R 356
- R v Folbigg [2003] NSWCCA 17
- R v AH (1997) 42 NSWLR 702
- R v WRC (2002) 130 A Crim R 59