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Court of Criminal Appeal 13 November 2015

Glover v R; Stuart v R

[2015] NSWCCA 285

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CONVICTION APPEAL PROSECUTION CASE CIRCUMSTANTIAL COINCIDENCE EVIDENCE REJECTION OF PRE NO PRE

Citation: Glover v R; Stuart v R [2015] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 13 November 2015
Judges: Basten JA at [1]; McCallum J at [95]; R A Hulme J at [105]

Background

Three co-accused were convicted at a joint trial on an indictment containing 12 counts arising from a series of armed robberies at hotels and clubs in Sydney's eastern suburbs between May and September 2011. The prosecution alleged that the accused used stolen getaway vehicles and targeted licensed venues, taking large sums of cash. Two of the accused (Glover and Stuart) appealed their convictions on multiple counts.

The prosecution case was largely circumstantial. Direct and strong evidence linked the accused to the final robberies, particularly a robbery at the Malabar RSL in July 2011, where one accused had visited the premises and signed the visitor's book in his own name two days beforehand. The prosecution relied on the similarities between that well-evidenced robbery and the earlier ones to argue the same people were responsible throughout.

The trial judge, after all evidence had been given, permitted the Crown to argue coincidence reasoning to connect the accused to the earlier robberies where the evidence was weaker. No pre-trial ruling on the admissibility of coincidence evidence had been sought or made, and no objection to the jury directions on this point was taken at trial.

  • Whether the trial judge erred in permitting the Crown to rely on coincidence evidence, given the absence of a pre-trial admissibility ruling and the procedural steps taken at trial.
  • Whether the requirements of sections 98 and 101 of the Evidence Act 1995 (NSW) governing coincidence evidence were satisfied, including the balancing exercise under s 101(2).
  • Whether the convictions on counts 2, 3 and 4 (Glover) and counts 2 to 6 (Stuart) were unreasonable or could not be supported by the evidence, within the meaning of the Criminal Appeal Act 1912 (NSW).

Decision

On the coincidence evidence ground, the Court examined the unusual procedural history. The trial judge had rejected a pre-trial application for separate trials but made no pre-trial ruling on the admissibility of coincidence evidence. Only after all evidence was in did the judge permit the Crown to advance coincidence reasoning. No objection was taken to the jury directions at trial. The Court found the ground was framed as a challenge to the manner in which the Crown was permitted to "rely on" the evidence, rather than as a straightforward admissibility challenge, which created complexity in how the appeal could be mounted.

The Court accepted that coincidence evidence under ss 98 and 101 of the Evidence Act required the trial judge to be satisfied that the evidence had significant probative value and that this value substantially outweighed any unfair prejudice. The Court scrutinised whether those statutory requirements had been properly applied in the particular procedural circumstances of this case.

On the unreasonable verdict ground, the Court undertook its own assessment of the evidence, bearing in mind the advantage a jury holds in assessing witnesses and the evidence as a whole. McCallum J and R A Hulme J both found that, for the contested counts concerning Glover and Stuart, there remained sufficient evidence to support the verdicts beyond reasonable doubt. Basten JA, however, concluded that convictions against Glover on counts 2, 3 and 4 (the robberies at the Nelson Hotel and the Sands Hotel on 4 May 2011) should be set aside as unreasonable, given the state of the evidence available to link Glover specifically to those offences.

As a result, the Court was divided in its final orders for Glover: the appeal succeeded in part, with convictions on counts 2, 3 and 4 set aside, requiring resentencing. Stuart's conviction appeal was dismissed in its entirety, though his sentence appeal was stood over for relisting.

Orders Made

For Glover:
- Leave to appeal against conviction granted.
- Appeal against conviction on counts 2, 3 and 4 upheld; those convictions set aside.
- Appeal against remaining convictions dismissed.
- Matter relisted for resentencing on remaining counts.

For Stuart:
- Leave to appeal against conviction granted.
- Appeal against conviction dismissed.
- Application for leave to appeal against sentence relisted.

Key Takeaways

  • The Court of Criminal Appeal confirmed that coincidence evidence under ss 98 and 101 of the Evidence Act 1995 (NSW) requires a trial judge to find that the evidence has significant probative value that substantially outweighs any unfair prejudice to the accused, and that the failure to undertake that balancing exercise is an identifiable error.

  • Where no pre-trial admissibility ruling is sought and no objection to jury directions is taken at trial, an accused faces significant procedural difficulty in framing a coincidence evidence challenge on appeal, particularly where the ground is directed at the manner of reliance rather than a discrete ruling on admissibility.

  • In assessing an unreasonable verdict ground, an appellate court must make its own independent assessment of the evidence while acknowledging the real advantage a jury holds, especially in a case turning on witness credibility and circumstantial inference.

  • Strong direct evidence linking accused persons to a final offence in a series does not automatically render inferences connecting them to earlier, less well-evidenced offences safe, particularly where the connection depends substantially on coincidence reasoning.

  • A partial success on conviction appeal will ordinarily require resentencing, even where the aggregate sentence was imposed across all counts.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 101, 184
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases:
- Carr v R [2015] NSWCCA 186
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Harriman v The Queen (1989) 167 CLR 590
- Hawi v R [2014] NSWCCA 83
- Hoch v The Queen (1988) 165 CLR 292
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- Morris v The Queen (1987) 163 CLR 454
- R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319
- R v Fletcher [2005] NSWCCA 338
- Ratten v The Queen (1974) 131 CLR 510
- Wood v R [2012] NSWCCA 21