Citation: R v Nassif [2004] NSWCCA 433
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2004
Judge(s): Simpson J; Adams J; Davidson AJ
Background
The applicant faced a nine-count indictment in the District Court arising from four separate alleged episodes spanning December 2001 and July 2002. The counts included taking and driving motor vehicles without consent, aggravated kidnapping, indecent assault, and attempted kidnapping. The alleged victims were four different women, each accosted alone in suburban streets during weekday afternoons.
The applicant applied to sever the counts so that each episode would be tried separately, rather than before a single jury hearing all nine counts together. Shillington ADCJ refused that application. The applicant then sought leave to appeal against that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
The Crown, in opposing severance, had given notice of its intention to rely on tendency and coincidence evidence under ss 97 and 98 of the Evidence Act 1995. It identified numerous striking similarities across the alleged offences, including that each involved a woman in her twenties walking alone, a stolen EA Ford Falcon, a weekday suburban setting, no weapon or disguise, and a distinctive item of clothing worn around the perpetrator's head.
Legal Issues
- Whether the nine counts should be severed so that each episode was tried separately, rather than jointly before one jury
- Whether the alleged similarities across the four episodes were sufficiently probative to satisfy the admissibility thresholds for tendency evidence (s 97) and coincidence evidence (s 98) under the Evidence Act 1995
- Whether the probative value of that cross-count evidence was substantially outweighed by the danger of unfair prejudice to the applicant under ss 135 and 137 of the Evidence Act 1995
- Whether identification evidence linking the applicant to each episode was strong enough to support a joint trial without the risk of impermissible cross-contamination
Decision
Simpson J, with whom Adams J and Davidson AJ agreed, upheld the District Court's refusal to sever the counts and dismissed the appeal. Her Honour found the reasons given by Shillington ADCJ, though brief, disclosed no legal error and reflected no misunderstanding of principle or overlooking of relevant considerations.
The central question was whether the evidence from each episode would be admissible on the trial of the other counts. Simpson J concluded that the Crown's coincidence and tendency evidence met the threshold requirements under the Evidence Act 1995. The similarities identified across the four alleged episodes, including the specific type of vehicle stolen, the method of approach, the clothing worn, the demographic and circumstances of each victim, and the manner in which each victim was released or escaped, were numerous and specific enough to render the evidence significantly probative.
Her Honour also addressed the prejudice concern. The probative force of the cross-count material was not substantially outweighed by the risk of unfair prejudice, and joint trial did not pose an unacceptable risk that the jury would impermissibly reason from one episode to others. Identification evidence, while contested, was sufficient across the counts to support that approach.
Davidson AJ, in a separate concurrence, noted an additional procedural concern: severance applications that turn on admissibility questions of this kind should ideally be heard by the judge who will preside at the trial, to avoid divergent rulings and procedural uncertainty. He also raised, without deciding, whether a ruling made by a judge other than the trial judge carried the finality required to constitute a "judgment, order, decision or ruling" within s 5F, given the matter could be revisited at trial.
Orders Made
- Leave to appeal granted
- Appeal dismissed; judgment of the District Court affirmed
Key Takeaways
- The Court of Criminal Appeal confirmed that a joint trial of multiple counts from separate episodes is permissible where tendency and coincidence evidence meets the admissibility thresholds under ss 97, 98, and 101 of the Evidence Act 1995, and its probative value is not substantially outweighed by unfair prejudice under ss 135 and 137.
- Numerous specific similarities across separate alleged offences, including the same stolen vehicle type, consistent method of approach, distinctive clothing, and similar victim profile, can collectively satisfy the significant probative value test required for coincidence evidence.
- A refusal to sever counts will be upheld on appeal where the District Court disclosed no misunderstanding of legal principle and no failure to consider relevant matters, even where the reasons for that ruling were relatively brief.
- Davidson AJ observed, without deciding, that severance applications turning on admissibility issues are best determined by the judge who will preside at the eventual trial, and raised an unresolved question about whether a ruling by a different judge has the finality required to engage s 5F of the Criminal Appeal Act 1912.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that adequate reasons for an interlocutory ruling in a busy trial court list need not be elaborate, provided they disclose no identifiable error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61L, 86(1), 86(2), 154A, 344A(1)
- Criminal Appeal Act 1912 (NSW): s 5F
- Criminal Procedure Act 1986 (NSW): ss 21, 29
- Evidence Act 1995 (NSW): ss 97, 98, 101, 135, 137
Cases:
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- Hoch v The Queen [1988] HCA 50; 165 CLR 292
- Pfennig v The Queen [1995] HCA 7; 182 CLR 461
- R v OGD (No 2) [2000] NSWCCA 404; 50 NSWLR 433