Citation: Baghdadi v R (No 2) [2012] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 3 May 2012
Judge(s): Campbell JA, RS Hulme J, Hoeben J
Background
The appellant had been convicted of two armed robbery offences. In October 2011, the Court of Criminal Appeal allowed his appeal in part and ordered a new trial (Baghdadi v R [2011] NSWCCA 234). Two days after that judgment was delivered, the appellant's solicitors applied under Rule 50C of the Criminal Appeal Rules for the Court to reconsider its orders.
The basis for the reconsideration application was that the Court had not addressed the appellant's second ground of appeal. That ground went to whether the evidence at trial was sufficient to sustain the convictions at all. Had the Court considered it and found it made out, the appropriate outcome would have been acquittal rather than a new trial.
The events at the centre of the original trial included a carjacking involving a distinctive BMW and two subsequent robberies: one at a premises known as the Berala robbery and one at the Fresh Fruit Palace. The prosecution relied on the carjacking evidence as coincidence evidence linking the appellant to both robberies.
Legal Issues
- Whether Rule 50C of the Criminal Appeal Rules permitted the Court to reconsider and revoke its earlier new trial order
- Whether the carjacking and the two robberies constituted "related events" under s 98 of the Evidence Act 1995 (in its pre-1 January 2009 form), so as to trigger the coincidence evidence regime
- Whether, on all the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant committed either robbery
Decision
The Court accepted that it had erred by not separately addressing the second ground of appeal, as required by authority. The reconsideration application was made within the time permitted by Rule 50C, and the Court proceeded to determine the second ground.
On the coincidence evidence question under s 98, Campbell JA concluded that the carjacking and the two robberies were not "related events" within the meaning of s 98(2). That provision required the events to be both substantially and relevantly similar, and the circumstances in which they occurred to be substantially similar. While there were some overlapping features, including the temporal connection, the involvement of the BMW, and the use of a firearm, the events differed materially in their nature. The carjacking involved stealing a car from its owner in a publicly accessible place during the day; the robberies involved attempted theft from retail premises after closing, in darkness. The appellant's identifiable physical characteristics were linked to the carjacking but not to the robberies.
Because the carjacking and the robberies were not "related events," s 98 did not govern the admissibility of the carjacking evidence. The Court noted the carjacking evidence was nonetheless relevant as ordinary circumstantial evidence under s 55, as it potentially connected the appellant to the BMW and raised questions of preparation and opportunity. However, the Court then turned to whether the overall evidence was sufficient to sustain the verdicts.
Applying the test from M v The Queen (1994) 181 CLR 487, Campbell JA concluded it would not have been open to the jury to be satisfied beyond reasonable doubt that the appellant committed either robbery. The absence of identification by any eyewitness, the lack of fingerprint or DNA evidence linking the appellant to the clothing, the BMW or the crime scenes, and a witness account describing a man at the BMW who was considerably shorter than the appellant and apparently known to local residents, collectively meant the evidence fell short of the required standard. The new trial order was revoked and verdicts of acquittal were entered on both charges.
Orders Made
- Orders 5 and 6 made by the Court on 26 October 2011 were set aside.
- A verdict of acquittal was entered on each charge.
Key Takeaways
- Under Rule 50C of the Criminal Appeal Rules, an appellate court may set aside or vary its own orders within the prescribed timeframe, including to correct a failure to address a separate ground of appeal.
- Where a prior judgment omits consideration of a ground of appeal that, if successful, would produce a more favourable outcome than the order already made, the court should address that ground before the order takes effect.
- Section 98 of the Evidence Act 1995 (pre-2009 form) applies only to "related events," meaning events that are both substantially and relevantly similar, and which occurred in substantially similar circumstances. The presence of some common features is not sufficient if the nature of the events themselves differs materially.
- Coincidence evidence reasoning is most naturally available where crimes are unusual or involve a distinctive modus operandi; where the alleged similar acts differ fundamentally in character, the statutory threshold is unlikely to be met.
- In applying M v The Queen, an appellate court may enter an acquittal where failed prosecution attempts to establish links between an accused and the crime are among several significant evidential gaps, and the cumulative effect is that no reasonable jury could be satisfied beyond reasonable doubt.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 50C
- Evidence Act 1995 (NSW), ss 55, 98, 98(2), 101, 135, 137
Cases
- Baghdadi v R [2011] NSWCCA 234
- AK v Western Australia (2008) 232 CLR 438
- Jones v The Queen (1989) 166 CLR 409
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- SKA v R [2011] HCA 13; (2011) 243 CLR 400