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Court of Criminal Appeal 26 October 2011

BAGHDADI v Regina

[2011] NSWCCA 234

Assault & violenceTheft & propertyFirearms & weapons
EVIDENCE COINCIDENCE EVIDENCE COINCIDENCE EVIDENCE EVIDENCE COINCIDENCE EVIDENCE S 101 EVIDENCE ACT 1995

Citation: BAGHDADI v Regina [2011] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 26 October 2011
Judge(s): Campbell JA (with RS Hulme J and Hoeben J agreeing)

Background

The appellant was convicted by a jury in November 2008 on two charges: assaulting a person with intent to rob while armed with a firearm (9 April 2006, Berala), and robbing another person while armed with a firearm (13 April 2006, Enfield). Before those charges went to trial, the appellant had already pleaded guilty to a separate carjacking offence committed on 9 April 2006, involving the taking of a silver 2004 BMW.

The Crown sought to lead evidence of the carjacking at trial to link the appellant to both armed offences. Other evidence showed the same silver BMW had been used in both incidents. The trial judge admitted the carjacking evidence as "coincidence evidence" under s 98 of the Evidence Act 1995 and also as circumstantial evidence, and directed the jury they could use it to infer guilt because coincidence was an unlikely explanation for the similarities.

The appellant challenged both convictions on appeal, arguing the carjacking evidence was wrongly admitted as coincidence evidence. He also sought extensions of time, having filed his notice of intention to appeal against conviction well outside the 28-day period required by s 10(1) of the Criminal Appeal Act 1912.

  • Whether the notice of intention to appeal against conviction was filed out of time, and whether an extension of time should be granted
  • Whether the carjacking evidence was properly admitted as coincidence evidence under s 98 of the Evidence Act 1995
  • Whether the trial judge properly applied the s 101 test (that the probative value of the evidence must outweigh its prejudicial effect on the defendant)
  • Whether, if the evidence was inadmissible as coincidence evidence, it could nonetheless be used as circumstantial evidence in light of s 95 of the Evidence Act 1995
  • Whether any error caused a miscarriage of justice sufficient to set aside the convictions

Decision

Extension of time: The notice of intention to appeal against conviction was filed on 24 August 2009, some nine months after the conviction. The court confirmed that the 28-day requirement runs from the date of conviction, not sentence, and that extensions are not granted as a matter of course. However, given that legal aid was necessary, that no personal delay by the appellant was demonstrated after 24 August 2009, and that the appeal had reasonable prospects of success, the court granted the extensions required.

Coincidence evidence under s 98: For evidence to be admissible as coincidence evidence, the events in question must be "related events," meaning they must be substantially and relevantly similar, and the circumstances in which they occurred must also be substantially similar. The court found the trial judge failed to properly identify and assess the required similarities between the carjacking and each of the two charged offences individually. Notably, any similarities between the two charged offences themselves were irrelevant to the s 98 analysis, which required separate consideration of the carjacking against each charge.

The s 101 test: The court found the trial judge did not clearly apply the s 101 test, which requires the probative value of the coincidence evidence to outweigh its prejudicial effect on the defendant. The court could not be satisfied that, had the judge properly applied s 101, the evidence would have been admitted in relation to at least one of the charges (the Fresh Fruit Palace robbery).

Section 95 and circumstantial use: Because the judge had also admitted the evidence as circumstantial evidence, and the jury was directed to use it as coincidence evidence, the court held that s 95 prevented the carjacking evidence from being used to prove guilt in a manner that depended on the same similarities underlying the coincidence reasoning, once those preconditions had not been satisfied. The appellant lost a real chance of acquittal as a result. The proviso under s 6(1) of the Criminal Appeal Act did not apply, and the first ground of appeal was upheld.

Orders Made

  • Extension of time for filing the Notice of Intention to Appeal granted to and including 24 August 2009
  • Extension of the period during which the Notice of Intention to Appeal has effect granted to and including 31 August 2010
  • Appeal allowed
  • Both convictions set aside
  • Matter remitted to the District Court for a new trial
  • Solicitor for Public Prosecutions directed to notify the Registrar and the Associate promptly after the new trial concludes

Key Takeaways

  • Under s 98 of the Evidence Act 1995, coincidence evidence is only admissible if the events are "related events," requiring substantial and relevant similarity both in the events themselves and in the circumstances surrounding them. The trial judge must assess each charged offence separately against the proposed coincidence evidence.
  • Similarities between two charged offences are irrelevant to whether a third event (the proposed coincidence evidence) can be admitted as coincidence evidence in relation to either charge. Each pairing must be assessed independently.
  • Where the s 101 probative value versus prejudicial effect test is not clearly applied, and the court on appeal cannot be satisfied the test would have been met, admission of the evidence may constitute error warranting the setting aside of a conviction.
  • Section 95 of the Evidence Act prevents evidence from being used as circumstantial evidence to prove a matter if the probative value of that use relies on the same reasoning as the coincidence evidence analysis, and the coincidence evidence preconditions have not been satisfied.
  • The Court of Criminal Appeal confirmed that extensions of time to appeal against conviction are not granted as a matter of course. Substantial reasons are required, though the prospects of success and consequences of refusal are both relevant considerations.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 95, 98, 101 (Part 3.6 – Tendency and Coincidence)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 10(1)
- Criminal Appeal Rules, cll 3A, 3B

Cases:
- Etchell v R [2010] NSWCCA 262
- McCall v R [2010] NSWCCA 174
- R v Lawrence [1980] 1 NSWLR 122
- R v Sunderland (1927) 28 SR 26
- R v Tyrrell (NSWCCA, 31 May 1974, unreported)
- R v Unger [1977] 2 NSWLR 990
- R v Waterhouse (NSWCCA, 20 September 1979, unreported)
- R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504