Citation: Ceissman v R [2015] NSWCCA 74
Court: Court of Criminal Appeal, NSW
Date: 30 April 2015
Judges: Leeming JA; Simpson J; Schmidt J
Background
The appellant was convicted on 15 counts of an indictment arising from a series of armed robberies at bowling clubs in western Sydney between July and August 2008. The robberies followed a consistent pattern: two masked men would steal a vehicle, break into a bowling club in the early hours, wait for staff to arrive, then rob the club at gunpoint. The central question at trial was whether the appellant was the taller of the two offenders.
A co-offender, who had pleaded guilty to his role in four of the five robberies, gave evidence for the Crown identifying the appellant as his accomplice. The appellant was unrepresented on appeal and sought leave to appeal out of time against his conviction on the counts relating to three bowling clubs: Moorefield, Canterbury, and Mount Lewis. He had been acquitted of the counts relating to two earlier robberies.
A Crown appeal had already been decided in 2010 (R v Ceissman [2010] NSWCCA 50), which overturned a pre-trial ruling that had severed the 22 counts and excluded coincidence evidence. That earlier decision formed part of the backdrop to several of the grounds pressed on appeal.
Legal Issues
- Whether the primary judge erred in admitting coincidence evidence under s 101 of the Evidence Act 1995 (NSW), particularly in relation to counts 8, 9 and 10 (the Moorefield robbery), where the probative value was said to be substantially outweighed by prejudicial effect
- Whether the admission of DNA evidence obtained from gloves and a balaclava recovered from the co-offender's caravan constituted error, noting no objection had been taken at trial
- Whether the Crown's failure to ask a witness who gave a general description of the appellant to attempt a formal identification constituted error
- Whether the jury's verdict was unreasonable or unjust, having regard to the totality of the evidence
Decision
The Court dismissed each ground of appeal. On coincidence evidence, the primary judge's ruling that the evidence relating to the Moorefield robbery (counts 8-10) was admissible under s 101 was upheld. The Court found that the prejudice arising from that evidence was not materially different from the prejudice involved in the other counts, and the ruling was not attended by error. The 2010 decision of the Court of Criminal Appeal remained the starting point, and the parties had agreed at trial that once that decision was made, the remaining question was the s 101 balancing exercise, which the primary judge conducted appropriately.
On the DNA evidence, no objection had been taken at trial by experienced counsel. The Court found no basis to conclude the evidence was wrongly admitted, and its probative value was clear: DNA matching the appellant was found on a glove and balaclava recovered from the co-offender's caravan the day after the Mount Lewis robbery.
The Court also rejected the ground based on the Crown's handling of the descriptive evidence. There was no requirement on the Crown to ask a witness who gave a general description to attempt a formal identification, and no error arose from the omission. On the unreasonable verdict ground, the Court held that the totality of the evidence, including the co-offender's direct testimony, the consistent modus operandi across the robberies, the DNA evidence, and the admissions made to the co-offender, made it plainly open to the jury to be satisfied of guilt beyond reasonable doubt. Finally, a minor error in the prosecutor's closing address, where the prosecutor appeared to refer to "fingerprint evidence" that did not exist, was found to be harmless. In context, no reasonable juror could have been misled, given the extensive focus throughout the trial on the absence of fingerprints and the presence of gloves.
Orders Made
- Time to appeal extended to permit reliance on the grounds identified in the notices of appeal filed 9 October 2013 and 10 September 2014
- Leave to appeal granted in respect of specified grounds in each notice of appeal; leave refused on remaining grounds
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a prior interlocutory ruling on coincidence evidence, already upheld on Crown appeal, set the framework within which the primary judge was required to conduct the s 101 balancing exercise at trial.
- Under s 101 of the Evidence Act 1995 (NSW), coincidence evidence is excluded only where its probative value is substantially outweighed by its prejudicial effect; here, the Court found no meaningful difference in prejudice as between the various counts that would have justified exclusion of the Moorefield robbery evidence.
- Where experienced trial counsel raises no objection to the admission of DNA evidence, an appellate court will not readily find error, particularly where the evidence carried clear probative weight.
- No error arose from the Crown's decision not to ask a witness who gave a general physical description of the offender to attempt a formal identification; the Crown's conduct of its own case on identification does not become a ground of appeal simply because a different approach might have been taken.
- A minor misstatement by a prosecutor in closing address does not produce a substantial miscarriage of justice where the overall trial context makes it obvious to the jury that the misstatement was erroneous.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F, 6
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 98, 101, 114
Cases
- R v Ceissman [2010] NSWCCA 50
- Aslett v R [2009] NSWCCA 188
- BCM v The Queen [2013] HCA 48; 88 ALJR 101
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- SKA v The Queen [2011] HCA 13; 243 CLR 400