Citation: R v Hammond [2018] NSWDC 503
Court: District Court of New South Wales
Date: 15 October 2018
Judge: Hunt DCJ
Background
The accused was arraigned on a charge of robbery with an offensive weapon (a knife) under s 97(1) of the Crimes Act 1900 (NSW), alleged to have occurred at Flinders on 12 June 2017. The alleged victim was robbed of cash, a gold "Citizen" watch, and Valium tablets. The accused pleaded not guilty.
The accused had separately pleaded guilty to a robbery at Cash Converters Warrawong on 14 June 2017, two days after the Flinders robbery. When arrested at his home shortly after the Warrawong robbery, he was wearing a watch later identified by the Flinders victim as the one taken from him. A distinctive backpack and a "ghost" mask were also found at the premises.
Before jury empanelment, the Crown applied to lead evidence of the Warrawong robbery and the accused's guilty plea to it under both the coincidence rule (s 98 of the Evidence Act) and the tendency rule (s 97 of the Evidence Act). The court was asked to determine admissibility as a preliminary matter.
Legal Issues
- Whether evidence of the Warrawong robbery and the accused's admission of guilt was relevant under s 55 of the Evidence Act
- Whether that evidence had "significant probative value" for coincidence purposes under s 98
- Whether the probative value of the evidence substantially outweighed its prejudicial effect under s 101(2)
- Whether the evidence was admissible as tendency evidence under s 97, given the tendency identified in the Crown's notice
- Whether evidence of the "ghost" mask found at the accused's premises was admissible
Decision
Relevance: Hunt DCJ found that the proposed coincidence evidence was relevant. If accepted, it could rationally affect the assessment of the probability of facts in issue, specifically the identity of the offender in the Flinders robbery. The watch found on the accused's person at the time of his arrest was a particularly significant connecting factor.
Coincidence evidence (s 98): The court found the evidence had significant probative value when considered in combination with other available evidence, including the watch, the distinctive backpack, and CCTV footage. Similarities between the two robberies included the geographic area, daytime commission on weekdays, targeting of small businesses, similar descriptions of the offender's build, use of a hoodie with the hood up, partial face covering, demands for cash, and departure on foot. The dissimilarities noted by the defence, including the use of a knife in Flinders but not in Warrawong, did not negate the significant probative value of the combined evidence. Applying s 101(2), the court was satisfied that probative value substantially outweighed any prejudicial effect, and the evidence was admitted on a coincidence basis.
Tendency evidence (s 97): The court declined to admit the same evidence on a tendency basis. The tendency identified, namely a tendency to rob small businesses of small amounts of cash in the Lake Illawarra area over a two-day period, was found insufficiently established by just two events. Hunt DCJ concluded the evidence did not have significant probative value for tendency purposes, and that any probative value did not substantially outweigh the danger of prejudice. The court also noted a risk that admitting the evidence for both tendency and coincidence purposes would produce overly complex jury directions and risk the jury giving disproportionate weight to the Warrawong robbery.
Ghost mask evidence: The court refused to admit evidence of the ghost mask found at the accused's premises. The police could not establish where in the premises the mask was found, its provenance was entirely unclear, and there was no evidence linking it specifically to the accused. The court found that any probative value was very slender and that there was a real danger of unfair prejudice. Applying s 137 of the Evidence Act, the mask evidence was excluded.
Orders Made
• Evidence of the Warrawong robbery to be admitted on a coincidence basis via agreed facts document and CCTV footage
• Evidence of the Warrawong robbery declined on a tendency basis
• Evidence relating to the ghost mask not to be admitted
Key Takeaways
- The District Court confirmed that coincidence evidence may achieve "significant probative value" under s 98 of the Evidence Act when assessed in combination with other available evidence, including physical items connecting the accused to both events, even where some dissimilarities exist between the events.
- A very narrow tendency identified from only two events occurring within two days is unlikely to carry sufficient probative value to satisfy the requirements of s 97 and s 101(2) of the Evidence Act, particularly where those same events are the subject of a coincidence application.
- Admitting the same evidence for both tendency and coincidence reasoning carries a risk of disproportionate weight being given to that evidence by a jury, which courts will weigh against admission, especially where the trial turns on a narrow body of evidence.
- Under s 137, evidence of an item found at an accused's premises will be excluded where its location within those premises is entirely unknown and no evidence connects it specifically to the accused, leaving only a speculative inference of wrongdoing.
- Descriptions of a perpetrator's conduct across two events that are generic to robberies generally carry reduced weight in establishing the requisite similarities for coincidence purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Evidence Act 1995 (NSW), ss 55, 97, 98, 100, 101, 137, 191
Cases:
- AW v R [2009] NSWCCA 1
- El-Hilli and Melville v R [2015] NSWCCA 289
- Illievski v R and Nolan v R [2018] NSWCCA 164
- R v Bauer [2018] HCA 40
- R v BP [2010] NSWCCA 302
- R v Gale & Duckworth [2012] NSWCCA 174
- R v Matonwal & Amood [2016] NSWCCA 174
- R v MR [2013] NSWCCA 236