Citation: R v Coskun [2022] NSWSC 149
Court: Supreme Court of NSW
Date: 22 February 2022
Judge(s): R A Hulme J
Background
The accused faced trial for the murder of one man and the attempted armed robbery of another at a residential address in Five Dock in the early hours of 2 April 2019. The Crown alleged that the accused was one of two men who entered the home armed with handguns, during which the deceased was shot and killed. The accused did not dispute being present at the scene, but the Crown still needed to prove the intruders' purpose was robbery, because the murder charge rested on a constructive murder theory tied to an attempted armed robbery.
A notable feature of the Crown case was that the accused had sent a WhatsApp message to the alleged co-offender less than three hours before the intrusion requesting two high visibility work shirts. He was wearing such a shirt, layered over a black jumper, when he entered the home.
The Crown sought to rely on tendency evidence: evidence that the accused had worn high visibility shirts when committing three separate armed robberies in 2013, for which he had pleaded guilty and been imprisoned. The accused objected to the admission of that evidence.
Legal Issues
- Whether the proposed tendency evidence had significant probative value, as required by ss 97(1) and 101(2) of the Evidence Act 1995 (NSW)
- Whether the probative value of the tendency evidence outweighed the danger of unfair prejudice to the accused under s 101(2)
- Whether the time gap between the 2013 robberies and the 2019 alleged offence diminished the probative value of the evidence
- Whether the evidence was separately excludable under s 137 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Significant probative value
The court assessed the tendency evidence at its highest, consistent with the approach required by IMM v The Queen. Hulme J found that wearing a high visibility shirt over a hooded jumper in the course of multiple robberies on separate days was capable of being regarded as quite an unusual thing to do (at [32]). The repetition of that behaviour across three robberies could lead a jury to reject the defence characterisation of the clothing choice as disordered or accidental, and instead view it as deliberate (at [33]).
If the jury accepted the accused had a tendency to wear high visibility clothing when committing robberies, that tendency could strongly support the inference that his purpose in attending the Odisho home was to commit a robbery (at [34]). The Crown's case on the intended robbery was largely circumstantial, and the tendency evidence would add a further circumstance to that chain of reasoning (at [23]-[24]). The differences between the 2013 robberies and the 2019 incident were acknowledged, but Hulme J found those differences did not detract from probative value because the evidence was not adduced to prove the accused's identity, and the common element was his state of mind when selecting attire before a robbery (at [35]).
Issue 2: The time gap
The defence drew an analogy to McPhillamy v The Queen, where a ten-year gap was found to undermine probative value. Hulme J rejected that analogy as inapt. The accused had been incarcerated for a substantial portion of the period between the 2013 offences and the 2019 incident, limiting the opportunity for him to act on any tendency. Combined with the distinctive and unusual nature of the tendency itself, the gap was found to be inconsequential (at [37]).
Issue 3: Probative value versus unfair prejudice
The court was satisfied that the probative value of the evidence outweighed the danger of unfair prejudice to the accused (at [43]). The evidence was limited in time and subject matter, making it possible to direct the jury clearly on permissible and impermissible uses (at [44]). Hulme J also noted that the 2020 amendment to s 101(2) had lowered the threshold from one requiring that probative value "substantially outweighs" prejudicial effect to one requiring only that probative value "outweighs" the danger of unfair prejudice, though he expressed some doubt whether this would make a practical difference in most cases (at [39]).
Issue 4: Section 137
The defence sought to exclude the evidence under s 137 as an alternative. Hulme J rejected this, noting that s 137 now replicates the same test as the amended s 101(2). No basis was advanced, or could be imagined, for the evidence to be inadmissible under s 137 if it was admissible under ss 97 and 101 (at [48]).
Orders Made
- The tendency evidence is admissible.
Key Takeaways
- Tendency evidence does not require close factual similarity between prior offences and the charged conduct where it is not adduced to prove the accused's identity. The court confirmed, following Hughes v The Queen at [39], that a lack of close similarity may not be significant in those circumstances (at [21]).
- An unusual or distinctive feature of behaviour, repeated across multiple separate occasions, can carry significant probative value as tendency evidence even where other explanations for the behaviour are theoretically available (at [32]-[33]).
- A time gap between prior conduct and the charged offence does not automatically diminish probative value. Where the accused was incarcerated for a substantial part of the intervening period, and the alleged tendency was distinctive in nature, the gap may be treated as inconsequential (at [37]).
- Under the amended s 101(2) of the Evidence Act 1995 (NSW), the Crown need only show that probative value "outweighs" the danger of unfair prejudice, rather than the previous standard requiring it to "substantially outweigh" prejudicial effect. Hulme J observed, however, that this change may make little practical difference in most cases (at [39]).
- Tendency evidence directed at proving a particular state of mind, such as an intention to commit robbery, operates differently from tendency evidence directed at proving identity. The court found the common element was the accused's mindset when selecting attire in anticipation of a robbery, not the operational details of the offences (at [35]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) , ss 18(1)( a), 97(2), 111(3)
- Evidence Act 1995 (NSW), ss 97(1) , 101(2), s 137
Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- Taylor v R [2020] NSWCCA 355
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40