New South Wales Court of Criminal Appeal CITATION: R v Ceissman [2010] NSWCCA 50 HEARING DATE(S): 17 March 2010 JUDGMENT DATE: 22 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Latham J at 2; Schmidt J at 24 DECISION: The ruling of 11 March 2010 refusing the Crown's application to adduce evidence of tendency and co-incidence in accordance with the notices of 15 October 2009 is set aside. The ruling of 11 March 2010 allowing the respondent's application for separate trials is set aside. CATCHWORDS: CRIMINAL LAW - Evidence - Judicial Discretion to admit or exclude evidence - whether Judge erred in excluding tendency and co-incidence evidence - whether Judge erred in severing indictment - Criminal Appeal Act 1912, ss 5f(2) and 5f(3A) LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 CATEGORY: Principal judgment R v Shamouil [2006] NSWCCA 112 CASES CITED : R v Zhang [2005] NSWCCA 437 ; 158 A Crim R 504 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Ellis [2003] NSWCCA 319 ; 58 NSWLR 700; 144 A Crim R 1 PARTIES: Regina - Crown Applicant Adam Ceissman - Respondent FILE NUMBER(S): CCA 2009/8452 COUNSEL: D Arnott SC /S Huggett- Crown Applicant K Averre - Respondent SOLICITORS: S Kavanagh (solicitor for Public Prosecutions) - Crown Applicant Brenda Duchen - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/8452 LOWER COURT JUDICIAL OFFICER: Flannery SC DCJ LOWER COURT DATE OF DECISION: 11 March 2010 IN THE COURT OF CRIMINAL APPEAL 2009/8452 McCLELLAN CJ at CL LATHAM J SCHMIDT J 22 MARCH 2010 REGINA v ADAM CEISSMAN Judgment 1 McCLELLAN CJ at CL : I agree with Latham J. 2 LATHAM J : The Crown appeals pursuant to ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 from two rulings by Flannery SC DCJ (the Judge) delivered on 11 March 2010, allowing the respondent's application to separate the 22 counts in the indictment, necessitating five trials, and rejecting the Crown's application to introduce tendency and co-incidence evidence in the respondent's trial. 3 The 22 offences essentially arise out of five separate criminal enterprises, each one committed by two men (of whom one is the respondent on the Crown case), generally involving the theft of a car from a car yard, using a stolen vehicle to drive to a small to medium sized bowling club in the western district of Sydney in the early hours of the morning, breaking into a part of the club which is not secured by the club's alarm system (such as a toilet or store room), waiting within that area of the club until the arrival of staff in possession of keys to the safe, donning balaclavas before threatening the staff with a firearm (in respect of four of the robberies), robbing the club of cash, and either departing in the stolen vehicle or in the vehicle of a staff member. All of the offences occurred between 14 July 2008 and 28 August 2008. 4 An alleged co-offender, Robert McCarthy, pleaded guilty to the offences arising out of the robberies on four of the five bowling clubs and was sentenced on the basis that he would give evidence in the respondent's trial to the effect that the taller of the two offenders, either depicted in close circuit television footage or described as such by witnesses, in each case was the respondent. The offences arising out of the robbery on the fifth bowling club (at Moorefields) are alleged to have been committed by the respondent and another man, and are the subject of admissions made by the respondent to Mr McCarthy. 5 The only issue in the trial of the offences is the identity of Mr McCarthy's co-offender in each case and the identity of the taller man in the Moorefields robbery. It is to be expected that a vigorous challenge will be mounted to Mr McCarthy's honesty and reliability and that his evidence will be the subject of directions under s 165 of the Evidence Act 1995. In that regard, it is relevant to note that the Crown also relies upon a significant body of evidence which provides independent support for Mr McCarthy's account, both as to the commission of the offences in which he was directly involved and as to the admissions made by the respondent to him. The respondent's counsel did not dispute that this body of evidence (including the detection of the respondent's DNA on items of clothing worn by the offenders on some occasions, telephone intercepts between the respondent and Mr McCarthy, evidence of association between them, and descriptions by witnesses of a significant feature of the respondent's appearance) provides cogent support for Mr McCarthy. 6 It is also accepted by the respondent's counsel that if the tendency and coincidence evidence is admitted against the respondent, the application to sever the counts on the indictment falls away. The only reservation to that concession was the severance of counts 8,9 and 10 on the indictment, relating to the robbery at Moorefields, in which Mr McCarthy was not directly involved. 7 The respondent took the preliminary point that the exclusion of the tendency and coincidence evidence by her Honour did not "eliminate or substantially weaken the prosecution case" (s 5F(3A)). This submission was advanced on the basis that, in the absence of the tendency and coincidence evidence, the Crown would nonetheless be relying upon the evidence of Mr McCarthy and that it was open to the jury to accept Mr McCarthy as a witness of truth. However, this submission fails to take into account the application of a direction under s 165 of the Evidence Act, which includes a warning to the jury that the evidence of an alleged co-offender may be unreliable and that the jury must approach that evidence with caution before determining whether to accept it and what weight to attach to it. In circumstances where the Crown case depends primarily upon the evidence of an alleged co-offender, supplemented in respect of some of the robberies by circumstantial evidence, the absence of tendency and coincidence evidence, which the respondent acknowledges is powerful, inevitably has the effect of substantially weakening the prosecution case : R v Shamouil [2006] NSWCCA 112 at [37]. 8 The Judge set out the events relied upon by the Crown as relevantly similar for the purposes of both co-incidence and tendency evidence at page 4 of her judgment. They are the matters set out at [3] above in these reasons. The Judge regarded these matters as substantially similar and that they occurred in substantially similar circumstances. Thus, the Judge correctly addressed the preliminary question for the purposes of s 98 of the Evidence Act. The Judge was then required to undertake the analysis set out by Simpson J in R v Zhang [2005] NSWCCA 437 at [139] ; 158 A Crim R 504 at 537, to which the Judge made express reference at page 3 of the judgment. The analysis applies to a consideration of both tendency and co-incidence evidence. 9 Having regard to Zhang, the first question to be determined was whether the evidence upon which the Crown relies as coincidence and/or tendency evidence is capable of rationally affecting the probability of the existence of a fact in issue. A fact in issue, in the sense that the Crown relies upon it to prove its case, is whether the offenders were the same on each occasion : see R v Fletcher [2005] NSWCCA 338 at [49] ; 156 A Crim R 308 at 319. The principal fact in issue ultimately was the identity of "the taller man". The second limb of the exercise (assuming an affirmative answer to the first) was to evaluate, in the light of all the available evidence, the likelihood that the jury would assign significant probative value to the coincidence and/or tendency evidence. 10 The extent of the analysis undertaken by the Judge, with respect to the co-incidence evidence, as exposed in the reasons for her decision, is :- I must next consider whether the evidence by itself, or having regard to other evidence to be adduced, has significant probative value. [Reference is made to "the other evidence", including the evidence of Mr McCarthy, the detection of the respondent's DNA on a cap used in the commission of one of the robberies, the finding of a balaclava containing DNA associated with the respondent's DNA profile in a bag retrieved from Mr McCarthy's premises, evidence of association between Mr McCarthy and the respondent, evidence of opportunity and other circumstantial evidence.] I do not consider that the evidence of what I have found to be related events is capable of rationally affecting the probability that the accused committed each of the offences, because of the improbability of the events occurring coincidentally, because Mr McCarthy's evidence makes it clear the offences were not committed coincidentally. 11 It is not easy, with respect to her Honour, to comprehend what the last statement in this passage means. On its face, it appears to contradict the Judge's finding that the "related events" qualified as co-incidence evidence. In the course of the hearing of the appeal, the Crown suggested that the genesis of this remark lies in an exchange between the Judge and counsel for the respondent below. Whilst I appreciate that the discussion between Bench and Bar does not constitute the reasons for judgment, it is nevertheless pertinent to set out the terms of that exchange in order to demonstrate the fallacy into which the Judge fell :- Counsel : … Were the jury to hear the offences together, and were they to accept because of the independent, what we might class as independent evidence, such as the Campbelltown bowling club robbery and of the accused's DNA said to be found on a cap in the vicinity of the Campbelltown bowling club, and perhaps other evidence, that were he to be guilty of that then that would be powerful in terms of persuasion in relation to the issue of the accused's guilt in relation to the Moorefields robbery. Similarly, in relation to the other matters where Mr McCarthy points a finger and says, I did the robbery, I did it with the accused, and I would say that it's a situation where there is a real risk that if the jury had before them the evidence in respect of each of the sets of offences that they're likely to convict on the basis of the perceived improbability that the accused was involved in one set of offences and not another. Her Honour : … you were saying it's really Mr McCarthy's modus operandi… Counsel : Yes your Honour…. Her Honour : .. that provides any evidence of the tendency or coincidence? 12 In other words, the Judge appears to have adopted counsel's submission and determined the application on the basis that the evidence of a co-offender deprived the related events of their co-incidental character, because the related events could be otherwise explained by the fact that they represented the co-offender's "modus operandi". This construction of the Judge's reasons is reinforced by the reasons provided immediately thereafter for the refusal of the application relating to tendency evidence, namely :- Again, it is Mr McCarthy's evidence that the Crown relies upon to prove each count in the indictment and therefore to prove the accused's tendency to commit the sorts of offences contained on the indictment. In those circumstances I do not consider that the jury would assign Mr McCarthy's evidence that the accused committed the other offences on the indictment, significant probative value. Accordingly, I do not propose to admit the evidence in relation to any one count event (sic) as tendency evidence in relation to any other event. 13 The "signature" nature of a "modus operandi" in the commission of offences can be one of the most powerful examples of tendency and coincidence evidence : see R v Ellis [2003] NSWCCA 319 ; 58 NSWLR 700; 144 A Crim R 1. Indeed, counsel's submissions to the Judge, reproduced at [11] above, capture the force of the tendency and co-incidence evidence and therefore the basis of its admissibility in this very case. 14 The fact that a series of offences are committed in a distinctive way by more than one offender does not necessarily deprive the evidence tending to establish those distinctive characteristics of its force. The relevantly similar or co-incidental features of the evidence may inform both the offences and the identity of the offender(s). In the instant case, there was no dispute in relation to the commission of the offences, or how they were committed or that they were committed by two men. There was no basis, evidentiary or otherwise, to conclude that both offenders (whoever they may have been) did not jointly engage in the planning and execution of the offences, including the theft of the cars, the particular type of premises targeted, the method of entry, the means of disguise, and the means of escape. 15 In my view, the Judge erred in a number of ways. First, in considering whether the evidence was capable of rationally affecting the probability of the respondent's participation in the offences, the Judge conflated the two steps in the analysis set out in Zhang. The chain of reasoning sought to be advanced by the Crown is :- (i) The co-incidental and tendency nature of the "related events" allows the inference to be drawn that the offences were committed by the same offenders. (ii) The respondent is one of the offenders in two of the robberies (DNA on items worn during the commission of those offences). (iii) The respondent was the taller of the two men in all five robberies (Mr McCarthy's evidence). (iv) The respondent is implicated in four of the robberies by circumstantial evidence (the "bad teeth" of one of the offenders described by two witnesses in respect of separate robberies, telephone intercepts between McCarthy and the respondent disclosing planning of the offences, and the pink gloves worn in two robberies). (v) The combination of the foregoing establishes the respondent's guilt of all of the offences beyond reasonable doubt. 16 The evidence of the "related events" is capable of rationally affecting the probability that the offences were committed by the same offenders (i). The test is one of capability, that is, is it open to the jury to conclude from the "related events" that the offences were committed by the same offenders : R v Shamouil [2006] NSWCCA 112 at [61] to [65]. The answer to that question in this case is clearly yes. The second stage of the analysis is to combine the "related events" with the other evidence relied upon ((ii) to (iv)) and pose the question, having regard to all of the evidence, is the jury likely to assign the evidence of the "related events" significant probative value. Again, I would answer that question in the affirmative. 17 There is no indication that the Judge undertook this exercise. To the contrary, her Honour appears to have looked at Mr McCarthy's evidence in isolation. Her Honour adverts to the other evidence, but does not factor it into the evaluative exercise being undertaken. 18 Second, her Honour erred in concluding that the co-offender's evidence deprived the evidence of the "related events" of any significance for tendency or co-incidence purposes. As I have endeavoured to explain, there is no logic to that conclusion. 19 I would uphold the Crown's appeal under s 5F(3A) and set aside her Honour's ruling with respect to both the tendency evidence and the co-incidence evidence. 20 I turn to the appeal under s 5F(2). Her Honour addressed the terms of s 29 of the Criminal Procedure Act 1986 and confirmed that the offences are related offences and "form or are part of a series of offences of the same or similar character." The Judge then determined that, in the interests of justice, the counts on the indictment should be separated on the basis that "the jury would find it difficult to reach their verdict without having regard to the inadmissible evidence, despite the directions I would give them." I interpolate that the reference to "the inadmissible evidence" was a reference to the tendency and coincidence evidence which the Judge had excluded. 21 This approach also reveals error. The interests of justice are not referable solely to the interests of the respondent : R v Grondkowski (1946) 1 KB 369, applied in R v Merritt & Roso (1985) 19 A Crim R 360 ; see Samadi and Djait v R [2008] NSWCCA 330 at [108]. It was not, strictly speaking, correct to describe the evidence of the "related events" as inadmissible. I appreciate why the Judge referred to it in this way, but the point of the Crown's application was to enable it to use the evidence of the "related events" in a particular way. The evidence was admissible in a trial of all 22 counts, but if it could not be used as tendency or co-incidence evidence, then directions to the jury prohibiting tendency or co-incidence reasoning would have been required. The Judge determined in effect that such directions would not be capable of preventing the jury from engaging in that prohibited reasoning. 22 In any event, the respondent's counsel conceded in this Court that if the Judge's ruling in relation to tendency and co-incidence evidence was set aside, it would follow that the separate trial ruling could not stand, at least until the Crown's application was re-considered according to law. For these reasons, I would uphold the Crown's appeal under s 5F(2) and set aside the Judge's ruling that there be separate trials. 23 Accordingly, the formal orders I propose are :- 1. The ruling of 11 March 2010 refusing the Crown's application to adduce evidence of tendency and co-incidence in accordance with the notices of 15 October 2009 is set aside. 2. The ruling of 11 March 2010 allowing the respondent's application for separate trials is set aside. 24 SCHMIDT J : I agree with Latham J. 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