Regina v Milenkovic [2005] NSWCCA 379

Reported Decision : 158 A Crim R 4

New South Wales Court of Criminal Appeal

CITATION: Regina v Milenkovic [2005] NSWCCA 379

HEARING DATE(S): 27 September 2005

JUDGMENT DATE: 27 September 2005

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 26; Rothman J at 27

DECISION: 1. Appeal dismissed; 2. Stay is dissolved

CATCHWORDS: CRIMINAL LAW - Crown appeal against interlocutory judgment - whether evidence should be admitted as tendency and/or coincidence evidence

LEGISLATION CITED: Evidence Act 1995

The Crown (Appl) PARTIES: Vladimir Milenkovic (Resp)

FILE NUMBER(S): CCA 2005/1816

G Rowling (Crown/Appl) COUNSEL: A Haesler SC/M Gelbert (Resp)

Solicitor for Public Prosecutions (Crown/Appl) SOLICITORS: Brenda Duchen Solicitors (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1422

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1816

McCLELLAN CJ at CL HISLOP J ROTHMAN J

TUESDAY 27 SEPTEMBER 2005 REGINA v Vladimir MILENKOVIC Judgment 1 McCLELLAN CJ at CL: The respondent is being tried for armed robbery. The Deputy Director Of Public Prosecutions has appealed against the decision of the trial judge to refuse to admit evidence which it was submitted should be admitted as tendency and/or coincidence evidence. 2 The respondent has been charged with armed robbery, the terms of the indictment being as follows: "On 13 May 2003, at Five Dock, in the State of New South Wales, being armed with an offensive weapon, namely a sledgehammer, did rob Vic Baracz of certain property, namely a sum of money, the property of Westpac Banking Corporation." 3 The Crown case on this charge is summarised in paragraph 7 of the affidavit of Brianna Butt in the following terms: "Between 1 p.m. and 2 p.m. on Tuesday 13 May 2003 a silver Nissan Skyline motorcar was stolen from Parramatta Road, Croydon; at about 3:30 p.m. on that day it was parked outside the Five Dock Branch of Westpac Banking Corporation; three men dressed in hoods or balaclavas and armed with a shotgun and two sledgehammers entered the bank and after threatening staff stole over $45,000; the driver remained in the car; shortly afterwards the three men who had entered the bank returned to the Nissan Skyline motorcar; in a laneway near the bank some of the occupants of the Nissan Skyline motorcar left it and entered a Holden Commodore motorcar, the property of the father of Gavin Tombleson. Upon recovery of the Nissan Skyline motorcar police officers found on the nearside front floor a wrench bearing DNA, the major sample of which was that of the respondent. During that day the respondent had used his mobile telephone at 1:33 p.m. at Ashfield and at 1:34 p.m. at Haberfield. On 12 May 2003, the day before the alleged offences, a person took a photograph of the respondent on the mobile telephone of Alanna Harris which was then in the possession of Gavin Tombleson." 4 The trial of the respondent on this charge has commenced and the Crown has sought to adduce evidence as tendency and/or coincidence evidence pursuant to s 97 and s 98 of the Evidence Act 1995. The initial consideration of that question took place before the jury had been empanelled and at a time when consideration was also being given to the possibility of a joint trial of the respondent in relation to other prospective charges. 5 The matter has previously been to this Court but was not pursued. The trial then commenced and, as I understand the position, the ruling and reasons which the trial judge made on the earlier occasion in relation to the admissibility of the contested evidence was adopted by his Honour during the course of the trial. 6 Accordingly, the reasons which the parties accept must be examined for the purpose of determining the issue before this Court are those which have been included as an annexure to the affidavit of Ms Butt, being annexure B together with annexure J to that affidavit. Counsel are agreed that on page 3 of the copy of the reasons, at annexure B, the trial judge has made a correction in the third line of the third paragraph and the words "strikingly or" should be deleted. 7 Notwithstanding that at the trial the Crown sought to tender the disputed evidence as tendency and/or coincidence evidence, on the hearing of this appeal the Crown has confined the basis for the tender to coincidence evidence as provided by s 98 of the Evidence Act. 8 The evidence which the Crown seeks to adduce as coincidence evidence which I shall refer to as the "second matter" is summarised in paragraph 8 of Ms Butt's affidavit and is in the following terms: "On Tuesday 23 May 2003 Gavin Tombleson, William Anaki, and Setynam Singh went to the Leichhardt Branch of Westpac Banking Corporation. At about 4 p.m. on the following day, 24 May 2003, a purple Nissan Skyline was stolen from Parramatta Road, Haberfield; between 5:30 p.m. and 8 p.m. on that day the respondent made telephone calls to the Gavin Tombleson. At about 3:14 p.m. on 27 May 2003, Tombleson, Anaki, Singh and the respondent left the Lewisham Hotel, Anaki carrying under a towel an object consistent with being a firearm and which he placed in Tombleson's car; at about 3:28 p.m. Anaki, wearing gloves, removed an item wrapped in a towel from the boot of Tombleson's car and handed it to Singh who removed the towel and placed a sledgehammer into the purple Nissan Skyline; Anaki removed his gloves and entered the driver's seat of Tombleson's car; at about 3:30 p.m. the respondent was driving the Nissan Skyline in Tebbutt Street, Leichhardt; at 4.08 p.m. Anaki and Tombleson left Tombleson's car at Tebbutt Street, Leichhardt and entered the purple Nissan Skyline; at 4:16 p.m. Anaki left the Nissan Skyline and after a time returned to it; at 4:47 p.m. the respondent drove it to Beeson Street where Tombleson, Singh and Anaki entered Tombleson's car and the respondent wearing a white cap with the letter "G" on it walked to the Lewisham Hotel carrying a towel. At about 6:30 p.m. the respondent and Anaki entered the purple Nissan Skyline in Beeson Street Leichhardt and the respondent drove it to Neutral Bay. Upon recovery of it police officers found in the purple Nissan Skyline a white cap with the letter "G" on it, two sledgehammers and, on the steering wheel, DNA in relation to which the respondent could not be excluded as a major contributor. The respondent used his mobile telephone in Stanmore, Leichhardt and Lewisham between 12:07 p.m. and 4:59 p.m. Detective Senior Constable Low and Senior Constable Schott saw the respondent driving the purple Nissan Skyline after 6:30 p.m. on George Street, Sydney and at about 7:37 P.m. on Willoughby Road, Naremburn; they had become familiar with the respondent from photographs which they had studied." 9 The Crown served an appropriate tendency and coincidence notice as required by the legislation. As I have indicated the admissibility of the relevant evidence was argued at an early stage of these proceedings. The matter was again considered by the trial judge yesterday when application was made by the Crown for an adjournment to enable this appeal to be brought. On that occasion his Honour declined to review his earlier ruling and furthermore declined to adjourn the trial to enable this appeal to be pursued. Late yesterday this Court stayed the trial until a determination of the appeal which was fixed for 2 p.m. today. 10 The transcript of the argument and his Honour's reasons for rejecting the evidence has been placed before us. It is clear from those documents that his Honour was immediately sceptical about whether the evidence could qualify as tendency evidence. That scepticism was well placed and the Crown now accepts that the tender of the relevant material could not be sustained on that basis. 11 With respect to the issue arising under s 98 the trial judge accepted that the Crown argument had more substance than the argument under s 97. As I understand his Honour's observation it was to the effect that there was at least an argument that a similarity existed between the two sets of relevant events so as to bring the evidence within the provisions of s 98(2) of the Act. 12 His Honour spoke generally of the argument in these terms: "The second argument is perhaps somewhat stronger and it is suggested by the Crown that they can utilise evidence in respect to one of these armed robberies or attempted armed robberies to link this accused with another armed robbery of a similar kind. In order to do this of course under the provision of the Act they must show that the events are so substantially and relevantly similar that it is improbable that they were committed by different persons and that, therefore, this particular accused person having committed one of the offences can be implicated in the commission of the other. Again, this section requires there to be significant probative value and that such significant probative value outweigh the prejudicial impact of the evidence, which is also that test which is referred to of course in the case of Ellis, to which I have referred." 13 At this point in his Honour's reasons I understand his Honour to be addressing the questions raised by s 98(2). However, he also appears to have in mind that, if a decision favourable to the Crown's argument had been made pursuant to s 98 his Honour would have been required to have regard to the provisions of s 101 of the Act. However, as his Honour makes plain, the conclusion which he ultimately expressed in relation to the matters raised by s 98(1)(b) made it unnecessary for his Honour to determine the question which would otherwise arise under s 101. 14 His Honour's reasons continue in the following terms: "The Crown argument is really along the lines that the offences relating to Five Dock and Leichhardt involved offences committed in the late afternoon or evening on a Tuesday in neighbouring suburbs on Westpac Banks by offender's wearing dark clothing of similar general appearance, that had sledgehammers, and arguably some firearm was to be used on each occasion. There were getaway vehicles, in each instance a Nissan Skyline vehicle, which had been previously stolen, with the stationing of a second car to be used following the offence. There is evidence of mobile telephones being used in the areas of the offences." 15 His Honour then proceeded, having regard to the matters to which he expressly referred, to consider whether or not that evidence is sufficient to satisfy the test provided by s 98(1)(b) that the evidence must have "significant probative value". His Honour continued: "Unfortunately, these features, as I have pointed out again in argument, are really the stock in trade of armed robbers, and it can hardly be regarded as substantially similar in such a fashion as to afford significant probative value to the evidence if the sorts of things relied upon are really just the common everyday characteristics of armed robberies of financial institutions where almost invariably people adopt some form of inconspicuous clothing, often some form of disguise or attempt to conceal one's identity, some form of armament in the form of guns or knives or sledgehammers or other such, and of course the use of getaway vehicles, is almost de rigeur as far as these sorts of offences are concerned. One could not argue from such factors, even though they to disclose some similarities, that this accused having been involved in one of these events was involved in the other. Consequently, I am against the Crown as far as the use of the coincidence provisions of the Evidence Act are concerned." 16 The Crown submits that the conclusion which his Honour reached contains relevant error. That submission is supported by the fact that although his Honour referred to many of the facts relevant to the second matter, which are similar to the facts which the Crown alleges were involved in the first matter, his Honour does not refer to the fact that in each series of events the change over car was common, being the car owned by Mr Tombleson's father. 17 It is submitted that although his Honour may have been correct in the conclusion that the matters which his Honour refers to were not such as to pass the threshold of significant probative value, when cognisance is taken of the fact that the change over car was common, a different conclusion should have been reached. 18 The respondent accepts that his Honour does not expressly refer to the fact that the car owned by Mr Tombleson's father was common to each series of events. However, it is submitted that because his Honour had before him all of the relevant material which had been debated at length, this Court should assume that, although his Honour did not expressly refer to that vehicle, his Honour had it in mind when reaching the conclusion which he did. 19 Because of the conclusion which I have come to in relation to the matter it is unnecessary for me to resolve that dilemma. 20 As I understand the position, apart from the disputed material, the evidence against the respondent in the matter which is proceeding at trial is confined to the presence of his DNA upon a wrench which was found in the getaway car. However, it is submitted that because there is evidence that the respondent was the driver of the getaway car in the second matter that fact, coupled with the similarities between the two series of events, including the common change over car, is probative of the fact in issue at the trial, being whether the respondent was involved in the robbery on the 13th. 21 To my mind, this submission must be rejected. Perhaps, the commonality of the change over car in each case, it was owned by Mr Tombleson who was known to the respondent, gave the evidence of the second event some probative value. However, s 98(1)(b) requires more. It is not sufficient that the evidence be merely probative, it must have significant probative value. 22 As I have indicated, the fact in issue and to which this evidence is said to have probative value is whether the respondent was actually involved in the robbery for which he is being tried. To my mind, the fact that he was involved in another aborted robbery where the same car may have been used as the change over car, does not, without more, have the required probative value. 23 The position would be different if perhaps the relevant wrench could have been shown to have been used in both robberies or there was some other implement or activity connected with the actions of the respondent which was similar on both occasions. However, that is not the evidence available to the Crown in the present case and accordingly, in my view, the only conclusion which could be drawn is that the evidence should be excluded having regard to the provisions of s 98(1)(b) of the Act. 24 It is unnecessary to consider the matter pursuant to s 101 of the Act. 25 In my opinion, the appeal should be dismissed. 26 HISLOP J: I agree. 27 ROTHMAN J: I agree.