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9
Court of Criminal Appeal 17 August 2012

R v Gale; R v Duckworth

[2012] NSWCCA 174

Also reported as (2012) 217 A Crim R 487
Theft & property
CRIMINAL LAW INTERLOCUTORY CROWN APPEAL LARCENY ADMISSIBILITY OF EVIDENCE COINCIDENCE EVIDENCE CONDITIONS OF ADMISSIBILITY

Citation: R v Gale; R v Duckworth [2012] NSWCCA 174
Court: Court of Criminal Appeal
Date: 17 August 2012
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J

Background

Two former NSW Police officers faced trial for larceny allegedly committed in June 2006. The Crown's case was that one respondent, who was employed as the licensee of a hotel, fabricated a report that he had been robbed at gunpoint of around $40,000 in takings, and that he had in fact stolen the money himself, with the other respondent's assistance. The case against both men was largely circumstantial, relying on mobile telephone records, evidence of financial difficulties, and the evidence of a prison informer who said both men had separately admitted their involvement to him.

The Crown sought to adduce coincidence evidence under s 98 of the Evidence Act 1995. That evidence concerned a separate armed robbery at another hotel in Queensland, committed in November 2006, in which both respondents had already pleaded guilty and been sentenced. The Crown argued the similarities between that robbery and the alleged NSW larceny supported an inference that both men were criminally involved in the NSW event.

The trial judge ruled the coincidence evidence inadmissible. The Director of Public Prosecutions appealed that ruling under s 5F(3A) of the Criminal Appeal Act 1912, which permits an interlocutory Crown appeal where a ruling eliminates or substantially weakens the prosecution case.

  • Whether the coincidence evidence met the conditions for admissibility under s 98 of the Evidence Act 1995, including whether it was capable of having significant probative value.
  • Whether, under s 101, the probative value of the evidence substantially outweighed its prejudicial effect.
  • Whether the primary judge's ruling was attended by error sufficient to warrant appellate intervention.

Decision

Simpson J (with whom McClellan CJ at CL and Fullerton J agreed) identified a number of similarities between the two events: both occurred at licensed hotel premises that were closed at the time, both involved the same two men, and both events involved an element of inside arrangement or pre-planning. The Court accepted that, viewed alongside the other circumstantial evidence, particularly the telephone records, the coincidence evidence was capable of having significant probative value for the purposes of s 98.

However, the Court then turned to s 101, which requires that, for coincidence evidence to be admissible in a criminal proceeding against a defendant, its probative value must substantially outweigh any prejudicial effect on the defendant. Simpson J acknowledged that while the evidence had substantial probative value, it was also highly prejudicial.

On that basis, the Court was unable to conclude that the probative value substantially outweighed the potential prejudice. The Crown appeal was therefore dismissed, leaving the primary judge's exclusion of the evidence undisturbed.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • Under s 98 of the Evidence Act 1995, coincidence evidence is admissible only where the court forms the opinion that the evidence is capable of having significant probative value; the Court of Criminal Appeal confirmed this threshold was met on the facts of this case.
  • A separate and more demanding hurdle applies under s 101: coincidence evidence tendered against a criminal defendant is inadmissible unless its probative value substantially outweighs its prejudicial effect. This test is not satisfied merely because the evidence has substantial probative value.
  • Similarities across two separate offences, including the type of premises targeted, the timing of the offences, and the common participation of the same individuals, can collectively support an inference of involvement, but those similarities must still clear the s 101 bar.
  • Where coincidence evidence is built in part on disputed similarities, the jury must be directed to consider only those similarities they find to be established, in a process analogous to the treatment of circumstantial evidence generally.
  • In dismissing the Crown appeal, the Court applied the standard from House v The King, which requires error of a particular kind before an appellate court will disturb a discretionary ruling. Here the Court addressed admissibility directly rather than confining itself to error review, finding the s 101 requirement was not satisfied.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(3A), 5F(5)
- Evidence Act 1995 (NSW), ss 97, 98, 100(2), 101, 165
- Criminal Procedure Act 1986 (NSW)

Cases
- DSJ v R; NS v R [2012] NSWCCA 9
- House v The King [1936] HCA 40; 55 CLR 499
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- DAO v R [2011] NSWCCA 63
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v RN [2005] NSWCCA 413
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504