Citation: Regina v Milenkovic [2005] NSWCCA 379
Court: New South Wales Court of Criminal Appeal
Date: 27 September 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J
Background
The respondent faced trial in the District Court on a charge of armed robbery. The alleged offence involved three masked men armed with a shotgun and sledgehammers robbing a Westpac bank branch at Five Dock on 13 May 2003, with the respondent said to have been a participant. The primary prosecution evidence directly linking him to the robbery was DNA found on a wrench recovered from the stolen getaway car.
The Crown sought to bolster its case by tendering evidence of a second incident involving an alleged attempted armed robbery on 27 May 2003. That incident involved a stolen Nissan Skyline, sledgehammers, the same change-over car owned by an associate, and surveillance evidence placing the respondent driving the stolen vehicle. The trial judge refused to admit this evidence as tendency or coincidence evidence under the Evidence Act 1995.
The Crown appealed that interlocutory ruling to the Court of Criminal Appeal. The trial was stayed pending the outcome of the appeal.
Legal Issues
- Whether the evidence of the second incident was admissible as coincidence evidence under section 98 of the Evidence Act 1995, specifically whether it had "significant probative value" as required by section 98(1)(b)
- Whether the Crown's earlier reliance on tendency evidence under section 97 could be sustained (this was abandoned by the Crown on appeal)
Decision
The Court of Criminal Appeal dismissed the appeal, unanimously agreeing with the trial judge's refusal to admit the contested evidence.
On the tendency evidence ground, the Crown conceded during the appeal that the evidence could not be sustained under section 97. The trial judge's early scepticism about this basis for admission was, in the Court's view, well placed.
On the coincidence evidence ground, McClellan CJ at CL accepted that some probative value existed, particularly given the use of the same change-over car owned by a known associate of the respondent in both incidents. However, section 98(1)(b) requires more than mere probative value: the evidence must carry "significant probative value." The critical fact in issue was whether the respondent participated in the 13 May robbery, and the Court held that his involvement in a separate aborted robbery using the same change-over car did not, without more, reach that higher threshold.
The Court noted that the position might have differed had there been additional connecting features, such as the same wrench being used in both incidents or some other specific implement or conduct linking the respondent's actions across both events. Those additional connections were simply not available on the evidence before the Crown.
Orders Made
- Appeal dismissed
- Stay dissolved
Key Takeaways
- Under section 98 of the Evidence Act 1995, coincidence evidence must satisfy a threshold of "significant probative value," not merely some probative value, before it can be admitted.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that surface-level similarities between two incidents, such as the use of the same change-over vehicle and similar weaponry, are insufficient on their own to meet the significant probative value requirement.
- A direct and specific connection between the defendant's conduct across both events, for example the same implement appearing in each incident, may be needed to elevate coincidence evidence to the required threshold.
- The Court also confirmed that coincidence evidence properly directed to one fact in issue (participation in the charged robbery) cannot be admitted merely because there is circumstantial overlap between two incidents involving the same associates.
- No consideration of section 101 of the Evidence Act (the further requirement that probative value substantially outweigh prejudicial effect) was necessary, given the evidence failed at the earlier section 98(1)(b) stage.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 97, 98, 98(1)(b), 98(2), 101
Cases:
No specific cases were cited in the portions of the judgment provided.