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6
Court of Criminal Appeal 17 August 2016

R v Matonwal & Amood

[2016] NSWCCA 174

Also reported as (2016) 94 NSWLR 1
Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW EVIDENCE TENDENCY AND COINCIDENCE EVIDENCE

Citation: R v Matonwal & Amood [2016] NSWCCA 174
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2016
Judge(s): Bathurst CJ; Rothman J; McCallum J

Background

Two respondents were arrested during an armed robbery at a Caltex service station in St Ives. They were subsequently charged on an indictment covering eight counts of armed robbery and three counts of going with face disguised with intent to commit robbery, involving a series of service station robberies across Sydney.

The Crown sought to use CCTV footage from each of the charged offences as tendency or coincidence evidence in relation to the other counts. The Crown pointed to similarities in weapons used, clothing and footwear, the height and build of the offenders, escape vehicles, and overall modus operandi. It also relied on physical evidence, including shoes and clothing seized from the respondents matching items worn by offenders in the CCTV footage, a shoe imprint at one scene matching a respondent's shoe, and yellow disposable gloves found in one respondent's car and at the other's home.

The trial judge in the District Court refused to admit the evidence as tendency or coincidence evidence, concluding that the features relied upon were common to robberies of that type. The Crown responded by presenting a revised indictment removing three counts, but the trial judge maintained the ruling. The Crown then appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge's ruling substantially weakened the Crown case, engaging the right of appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), or whether leave was required
  • Whether the trial judge erred by evaluating each item of coincidence evidence separately rather than cumulatively
  • Whether the trial judge erred by failing to consider the proposed coincidence evidence in the context of all other Crown evidence
  • Whether the CCTV and associated evidence was admissible as coincidence evidence and/or tendency evidence under the Evidence Act 1995 (NSW)

Decision

On the right of appeal under s 5F(3A): The Court held that whether a ruling "substantially weakens" the Crown case is assessed by asking what effect the evidence would have, assuming the jury accepts it and it is fit to go to the jury. This approach requires evaluating probative value without weighing credibility or reliability, except to the extent those issues bear on relevance. Applying that test, the Court found the refused evidence carried significant probative value, meaning the exclusion ruling did substantially weaken the Crown case.

On cumulative versus separate assessment: The Court confirmed that coincidence evidence must be evaluated as a whole, not by examining each similarity in isolation. Although the trial judge stated he had considered the cumulative effect, his reasons contained no analysis to support that conclusion. The Court found this constituted legal error.

On the broader evidentiary context: The Court held that the admissibility determination must be made having regard to all evidence the Crown intends to rely upon, not merely the proposed coincidence evidence considered in a vacuum. The trial judge's failure to account for the physical evidence, including the seized shoes, clothing, and gloves, was a further error.

On admissibility as coincidence or tendency evidence: The Court allowed the appeal in part. Evidence relating to six of the counts on the indictment was found admissible as coincidence evidence, given the similarities between those offences and the St Ives robbery were sufficient to carry significant probative value when assessed cumulatively and alongside the physical evidence. Evidence relating to the remaining two counts was not admitted, as the similarities were insufficient. The Court declined to admit any of the evidence as tendency evidence. To establish a relevant tendency, it would first need to be proved beyond reasonable doubt that the respondents committed the individual robberies, and proving one robbery would not, of itself, establish the pleaded tendencies.

Orders Made

  • Appeal allowed in part
  • Evidence referred to in paragraph 3 of the amended notice of coincidence evidence (dated 28 October 2015), insofar as it relates to the St Ives armed robbery and the offences the subject of Counts 1, 2, 3, 5, 6 and 7 on the indictment presented on 28 October 2015, ruled admissible as coincidence evidence on each of those counts
  • Appeal otherwise dismissed

Key Takeaways

  • Coincidence evidence must be assessed cumulatively across all the circumstances relied upon, not evaluated feature by feature in isolation. A statement by a trial judge that cumulative effect was "considered" will not suffice without accompanying analysis.
  • The task of assessing whether coincidence evidence has "significant probative value" under s 98(1)(b) of the Evidence Act 1995 (NSW) must be performed in light of all other evidence the Crown proposes to lead, not in isolation from the broader evidentiary picture.
  • "Significant probative value" requires the evidence to be "important" or "of consequence" in the context of the specific facts in issue. The evidence must be influential in the fact-finding process, not merely relevant in a technical sense.
  • Tendency evidence under s 97 of the Evidence Act 1995 (NSW) faces a higher bar in this context. Where the Crown seeks to use one uncharged or charged act to establish a tendency to commit another, it must first establish beyond reasonable doubt that the respondents committed the act said to reveal the tendency. Proof of one robbery did not, on these facts, establish the relevant tendencies as pleaded.
  • In determining whether a Crown appeal engages s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the "substantially weakens" threshold is assessed by reference to probative value on the assumption the jury would accept the evidence, consistent with the approach in R v Shamouil and confirmed in IMM v The Queen.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 114
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 55, 56, 97, 98, 101

Cases:
- DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v R [2012] NSWCCA 9; 84 NSWLR 758
- House v The King [1936] HCA 40; 55 CLR 499
- IMM v The Queen [2016] HCA 14; 90 ALJR 529
- R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
- R v MR [2013] NSWCCA 236
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504