AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 22 March 2010

R v Ceissman

[2010] NSWCCA 50

Theft & propertyFirearms & weapons
CRIMINAL LAW EVIDENCE INCIDENCE EVIDENCE

Citation: R v Ceissman [2010] NSWCCA 50
Court: Court of Criminal Appeal (NSW)
Date: 22 March 2010
Judge(s): McClellan CJ at CL, Latham J, Schmidt J

Background

The respondent faced 22 counts on an indictment arising from five armed robberies of bowling clubs in western Sydney, all committed between July and August 2008. On the Crown's case, each robbery followed a strikingly similar pattern: a car was stolen from a car yard, the offenders drove to a bowling club in the early hours, entered through an unsecured area, waited for staff to arrive with keys to the safe, and then robbed the club at gunpoint while wearing balaclavas. A co-offender, who had pleaded guilty to four of the five robberies, was expected to give evidence identifying the respondent as his taller accomplice.

The central issue at trial would be the identity of the taller of the two offenders. The Crown sought to tender tendency and coincidence evidence based on the shared features of the five robberies, and sought to try all 22 counts together. In the District Court, the trial judge excluded the tendency and coincidence evidence and ordered five separate trials.

The Crown appealed both rulings to the Court of Criminal Appeal under sections 5F(2) and 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the District Court judge erred in excluding the Crown's tendency and coincidence evidence under the Evidence Act 1995
  • Whether the exclusion of that evidence "eliminated or substantially weakened" the prosecution case, so as to enliven the Crown's right of appeal under s 5F(3A)
  • Whether the District Court judge erred in severing the indictment and ordering separate trials

Decision

On the s 5F(3A) threshold question, the Court of Criminal Appeal found that the absence of the tendency and coincidence evidence did substantially weaken the prosecution case. The Crown's case rested primarily on the evidence of a co-offender, which attracted a mandatory judicial warning under s 165 of the Evidence Act about the unreliability of accomplice evidence. Removing the coincidence and tendency evidence, acknowledged by the respondent's counsel as powerful, inevitably weakened the overall case.

On the substantive exclusion ruling, the Court found that the District Court judge's reasoning was internally contradictory. The judge had correctly identified the "related events" as substantially similar and occurring in substantially similar circumstances, satisfying the preliminary test for coincidence evidence. However, the judge then concluded that the evidence could not rationally affect the probability of the accused having committed each offence because the co-offender's evidence showed the offences were not committed coincidentally. The Court of Criminal Appeal found this reasoning difficult to comprehend and inconsistent with the judge's own threshold finding.

The Court also found error in the severance ruling. The trial judge had premised the separation of trials on her earlier exclusion of the tendency and coincidence evidence, reasoning that the jury could not be trusted to ignore it. The Court of Criminal Appeal observed that the interests of justice in a severance application are not referable solely to the interests of the accused. Furthermore, once the exclusion ruling was set aside, the basis for severance dissolved. The respondent's counsel conceded as much before the Court of Criminal Appeal.

Orders Made

  • The ruling of 11 March 2010 refusing the Crown's application to adduce evidence of tendency and coincidence (in accordance with the notices of 15 October 2009) is set aside.
  • The ruling of 11 March 2010 allowing the respondent's application for separate trials is set aside.

Key Takeaways

  • A District Court ruling excluding tendency and coincidence evidence can ground a Crown appeal under s 5F(3A) of the Criminal Appeal Act 1912 where, without that evidence, the prosecution case is substantially weakened, particularly when it rests primarily on the testimony of an alleged co-offender subject to an unreliability warning.
  • Internal inconsistency in a trial judge's reasoning constitutes appellable error: having found the preliminary test for coincidence evidence satisfied, a judge cannot then logically conclude that the same events are incapable of rationally affecting the probability of a fact in issue.
  • Under s 29 of the Criminal Procedure Act 1986, the interests of justice in a severance application are not confined to the interests of the accused; the Court of Criminal Appeal reaffirmed that the Crown's interests and the efficient administration of justice are also relevant.
  • Where a ruling to sever an indictment is founded entirely on a prior erroneous evidentiary exclusion, both rulings will fall together once the evidentiary ruling is overturned.
  • Coincidence and tendency evidence retains its potential probative force even where a co-offender gives direct identification evidence; the two categories of evidence serve distinct forensic purposes and are not rendered redundant by each other.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(2), 5F(3A)
- Criminal Procedure Act 1986 (NSW), s 29
- Evidence Act 1995 (NSW), ss 97, 98, 165

Cases
- R v Shamouil [2006] NSWCCA 112
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1
- R v Grondkowski (1946) 1 KB 369
- R v Merritt & Roso (1985) 19 A Crim R 360
- Samadi and Djait v R [2008] NSWCCA 330