Citation: R v Coe; R v Singh [2020] NSWDC 567
Court: District Court of New South Wales
Date: 3 September 2020
Judge: Bennett SC DCJ
Background
Two co-accused were jointly charged with four offences arising from events on 7 July 2019 in Canterbury, New South Wales. The first charge alleged armed robbery of a young woman (described by her initials), in which an iPhone, cash, and a bank card were taken at gunpoint or at the point of an imitation firearm. The remaining three charges alleged fraud offences involving the use of the stolen bank card shortly after the robbery to pay a cab fare and purchase food items at two petrol stations.
One accused had previously pleaded guilty to the three fraud counts but not guilty to the robbery. Shortly before trial, he sought to withdraw those guilty pleas. That application was heard separately and refused. Both accused ultimately stood trial before the judge alone on the robbery count.
The Crown's case on identity was entirely circumstantial. No formal identification parade or photo array had been conducted with the victim. The prosecution instead relied on the victim's physical description of the robber, images retrieved from a phone seized when one accused was arrested, CCTV footage tracking the movements of both men after the robbery, and the timing and location of the fraudulent card transactions.
Legal Issues
- Whether images retrieved from a seized mobile phone should be excluded from evidence on the robbery count.
- Whether the trial was validly constituted as a judge-alone trial under s 365 of the Criminal Procedure Act 1986.
- Whether the Crown proved beyond reasonable doubt that both accused participated in the armed robbery, relying entirely on circumstantial evidence.
- Whether one accused was guilty of the aggravated form of robbery (armed with a dangerous weapon, contrary to s 97(2) Crimes Act 1900) or only the lesser alternative offence of robbery in company (s 97(1)).
- What principles govern the drawing of inferences from circumstantial evidence in a judge-alone trial.
Decision
Exclusion of phone images: Bennett SC DCJ refused the application to exclude images recovered from the mobile phone seized from one accused. The judgment does not detail the reasoning at length in the extracted text, but the application was heard and dismissed before the trial proper commenced.
Judge-alone trial: The Court was satisfied that the trial was validly conducted under s 365 of the Criminal Procedure Act 1986. Both accused had consented to trial by judge alone and had each received advice from an Australian legal practitioner about the effect of that election. The Crown did not oppose the course. The Court confirmed that the requirements of ss 10B, 132, and 132A of the Criminal Procedure Act were not engaged where s 365 applied.
Findings on the robbery count: Applying the standard directions applicable to circumstantial cases and judge-alone trials under Fleming v R (1998) 197 CLR 250, the Court found that the combination of facts and circumstances left no rational conclusion other than that both accused were acting in concert. One accused physically perpetrated the robbery while the other maintained a lookout on Canterbury Road. The Court then found the two men moving together, captured on CCTV, before the stolen card was used in rapid succession at multiple locations. Those transactions, occurring so soon after the robbery, were treated as significantly corroborative.
Differentiated verdicts: One accused (Coe) was found guilty of the aggravated offence under s 97(2), armed robbery with a dangerous weapon. The Court returned an alternative verdict for the other accused (Singh): not guilty of the s 97(2) aggravated offence, but guilty of the lesser included offence of robbery in company under s 97(1). The distinction reflected the evidence available against each. The Court also noted that Singh's facilitation of the judicial process would be a matter for consideration under s 22A of the Crimes (Sentencing Procedure) Act 1999 at sentencing.
Orders Made
• Trial to be conducted by judge alone pursuant to s 365 Criminal Procedure Act 1986
• Trial date confirmed as 10 August 2020 with an estimate of seven days
• Readiness hearing listed for 17 July 2020 was vacated
Key Takeaways
- The District Court confirmed that a joint trial by judge alone under s 365 of the Criminal Procedure Act 1986 requires consent from all accused and evidence that each has received legal advice about the effect of that election; where those conditions are met, the separate requirements of ss 10B, 132, and 132A are not engaged.
- A conviction for robbery based entirely on circumstantial evidence is available where the combination of facts permits no other rational conclusion, even in the absence of a formal identification parade or direct eyewitness identification.
- Co-accused participating in a joint criminal enterprise need not play identical roles for each to be convicted; the Court found one accused perpetrated the robbery directly while the other acted as lookout, and both were convicted on the robbery count.
- Where the evidence supports a lesser included offence but not the aggravated form of the charge, an alternative verdict under the Crimes Act 1900 may be returned, resulting in differentiated outcomes for co-accused tried on the same count.
- Facilitation of the judicial process by an accused, including conduct during the trial proceedings, remains relevant to sentencing considerations under s 22A of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 192E(1)(a), 192E(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 10B, 132, 132A, 133(2), 133(3), 365
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)
Cases:
- Fleming v R (1998) 197 CLR 250
- The Queen v Phan [2001] NSWCCA 29
- Darestani v R [2019] NSWCCA 248
- Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981