Citation: Selby v R [2017] NSWCCA 40
Court: Court of Criminal Appeal, New South Wales
Date: 15 March 2017
Judge(s): Leeming JA, Schmidt J, Wilson J
Background
The appellant was charged with demanding money with menaces (under s 99(1) of the Crimes Act 1900 (NSW)) and intimidation (under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). Both offences were alleged to have occurred at the same business premises in Arndell Park, western Sydney, and against the same victim: the first on 6 July 2012, the second on 15 October 2012.
Shortly before trial, the appellant pleaded guilty to the intimidation count. The Crown's case on that count was bolstered by CCTV footage of a car registered to his wife, fingerprint evidence, and DNA taken from the door handle. The indictment was amended and the appellant stood trial solely on the demanding money with menaces charge.
The central issue at trial was identity: was the man who threatened the victim with a gun on 6 July the same man who intimidated him on 15 October? Given the forensic evidence on the second occasion, the defence did not seriously contest that the appellant was the perpetrator on 15 October. The jury convicted on the remaining count.
Legal Issues
- Whether the trial judge erred in directing the jury that coincidence evidence could be used to corroborate identification evidence on the first count.
- Whether it was open on the evidence for s 98 of the Evidence Act 1995 (NSW) (coincidence evidence) to be engaged at all, given the alleged dissimilarities between the two incidents.
Decision
The Court addressed the two grounds together, noting they were interrelated. The key question was not whether coincidence evidence was wrongly admitted (no challenge was made to its admission), but whether the trial judge's directions to the jury about how to use that evidence were legally erroneous.
On the first ground, the Court examined the trial judge's directions closely. The judge had used the word "corroborate" in the course of the summing up. The appellant argued this misdirected the jury by importing technical connotations associated with formal corroboration doctrine. The Court was not persuaded. Read in context, the directions repeatedly and clearly identified the jury's actual task: to determine whether the same man was present on both occasions, and if so, whether that man was the appellant. The language of "corroborate" as used would have been understood by a lay jury in its ordinary sense, and the overall directions were not misleading.
On the second ground, the Court found that s 98 of the Evidence Act was plainly engaged. The Crown led evidence of significant similarities between the two incidents, including that both men wore sunglasses, had their heads covered, and produced a small firearm. The victim gave unequivocal evidence in cross-examination that it was the same man on both occasions, and had said so contemporaneously in a triple-0 call made shortly after the second incident. The defence pointed to dissimilarities, including differences in facial hair and manner of speech. The Court accepted that dissimilarities are relevant to the weight of coincidence evidence, but they do not necessarily prevent s 98 from being engaged in the first place.
Critically, the Court noted that no objection was taken to the directions at trial. Counsel for both Crown and defence had reviewed the trial judge's written summing up document overnight before it was delivered. Rule 4 of the Criminal Appeal Rules requires leave to appeal where no objection was raised at trial, and leave will only be granted where there has been a departure from the essential requirements of the law going to the root of the proceedings. The Court found no such departure, and was not persuaded that the directions deflected the jury from the task that had been repeatedly set for them.
Orders Made
- Leave to appeal granted only to the extent necessary and confined to Ground 2 of the notice of appeal dated 27 February 2017; leave otherwise refused.
- Appeal dismissed.
Key Takeaways
- Dissimilarities between two incidents bear on the weight to be given to coincidence evidence under s 98 of the Evidence Act 1995 (NSW), but do not automatically prevent s 98 from being engaged where there are also significant similarities.
- A guilty plea to one count does not preclude the Crown from relying on evidence established by that plea as coincidence evidence on a related count, provided the admissibility requirements are met.
- Where counsel reviewed jury directions overnight and raised no objection, the Court of Criminal Appeal treated the absence of objection as a meaningful indicator of the directions' fairness and adequacy.
- Under r 4 of the Criminal Appeal Rules, leave to appeal on a point not raised at trial requires more than demonstrated error: there must be a departure from the essential requirements of the law going to the root of the proceedings, or a real risk of injustice.
- In assessing whether a jury direction was misleading, the relevant question is how the language would have been understood by a lay jury in context, not how it would be read by a technically trained lawyer.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 95, 97, 98, 101
- Crimes Act 1900 (NSW), s 99
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Appeal Rules, r 4
Cases:
- ARS v R [2011] NSWCCA 266
- El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
- Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
- Lin v Tasmania [2015] TASCCA 13
- Page v The Queen [2015] VSCA 357
- Petroulias v R [2014] NSWCCA 108
- R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v Razzak [2004] NSWCCA 62
- R v Winters [2010] SASC 100
- Saoud v R [2014] NSWCA 136
- Tekely v R; Nagle v R [2007] NSWCCA 75