Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v MR [2013] NSWCCA 236 Hearing dates: 19 September 2013 Decision date: 18 October 2013 Before: Hoeben CJ at CL at [1] Schmidt J at [2] Beech-Jones J at [20] Decision: 1. The ruling of Quirk DCJ on 05.03.13 that the material set out in the coincidence notice dated 26.02.13 as amended is not admissible for coincidence purposes be set aside. 2. The material set out in the coincidence notice dated 26.02.13 as amended be admitted for coincidence purposes. 3. The order made by Quirk DCJ on 05.03.13 severing the counts on the indictment be set aside. 4. The notice of motion filed 27.07.12 by the respondent in proceedings number 2011/163025 be dismissed. Catchwords: CRIMINAL LAW - Crown appeal against ruling excluding coincidence evidence - Crown appeal against interlocutory judgment severing counts on indictment - whether ruling eliminated or substantially weakened the prosecution case - Criminal Appeal Act 1912, 2 5F. EVIDENCE - admissibility - coincidence evidence - test - relevance - significant probative value - Evidence Act 1995, ss 55 and 98. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Evidence Amendment Act 2007 Cases Cited: - Dao v R [2011] NSWCCA 63; 278 ALR 765 - DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262 - House v R [1936] HCA 40; 55 CLR 499 - KRM v R [2001] HCA 11; 206 CLR 221 - Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 - R v Ceissman [2010] NSWCCA 50 - R v Oliver (1984) 57 ALR 543 - R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 - R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 - Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 - Sutton v R [1984] HCA 5; 152 CLR 528 Texts Cited: - ALRC Discussion Paper 69: Review of the Uniform Evidence Act - ALRC Report 102: Uniform Evidence Law Report Category: Principal judgment Parties: Crown (Appellant) "MR" (Respondent) Representation: Counsel: Ms N. Noman SC (Appellant) P. Skinner (Respondent) Solicitors: Deputy Director of Public Prosecutions (Appellant) Meridian Legal (Respondent) File Number(s): 2011/163025 Publication restriction: NIL, but note Respondent due for trial on 28 October 2013. Decision under appeal Date of Decision: 2013-03-05 00:00:00 Before: Quirk DCJ Judgment 1HOEBEN CJ at CL: I agree with Beech-Jones J and the additional observations of Schmidt J. 2SCHMIDT J: I have had the advantage of reading Beech-Jones J's draft judgment and adopt his Honour's explanation of the evidence and the parties' cases below and on appeal. 3For my part, I joined in the orders made at the hearing in relation to the evidentiary ruling, because I took the view that her Honour had erred in the conclusions which she reached as to the evidence the subject of the coincidence notice, in undertaking the evaluative exercise required by s 98 of the Evidence Act 2005, as explained in DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262 and in the conclusion reached in relation to s 101 of the Evidence Act. The result of her Honour's decision was to substantially weaken the Crown's case and so the appeal had to be upheld (see s 5F(3A)). For reasons which Beech-Jones J explains, it followed that the appeal in relation to the severance order also had to be upheld. 4I agree with Beech Jones J's explanation of her Honour's error in relation to s 101 of the Evidence Act and with regard to s 5F(3A), but wish to explain the reasons for my conclusions in relation to her Honour's error in relation to s 98 of the Evidence Act. 5The Crown had sought to rely on the evidence identified in a coincidence notice to establish that the respondent was one of the offenders involved in each of the armed robbery offences (counts 1, 2, 3 and 5) and the car jacking offence the subject of count 4, as well as the police pursuit which is the subject of the s 166 certificate. 6'Coincidence evidence' is defined in the Dictionary to the Evidence Act to be evidence of two or more events that a party seeks to have adduced for the purpose referred to in s 98(1), which provides: "(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 7Some of the events and circumstances relied on by the Crown below to support its coincidence notice were submitted to be similar and others to be 'strikingly' similar, so that it was unlikely that they had occurred coincidentally. Those in the first category were: "a. each of the four targets were similar, being 'soft targets', that is late night fast food outlets and a late night bottle shop b. each occasion involved 4 offenders, except count 2, which involved 2 c. the offenders were dressed similarly, typically wearing track pants and some form of hooded top d. in counts 1,2 and 3 where there was CCTV footage, the person alleged to be the respondent was of similar height and weight and could be seen to move in a similar way." 8Those which were submitted to be strikingly similar, were: "a. on each occasion the same or similar group was involved b. the clothing worn by the offenders on each occasion was striking: In counts 1,2 and 5 the offenders wore distinctive 'Sean John' jumpers, it is alleged that the respondent wore such a jumper during count 2, such jumpers were found in the car after the police pursuit the subject of the s166 certificate charge and it follows were present, if not worn during the police pursuit (count 4) In counts 1 and 2 R wore Puma track pants of a distinctive design. Those pants were later seized on search pf the respondent's home In counts 1,3 and 5 at least one offender sought to disguise his clothing wearing his hooded jumper inside out In at least count 1 and perhaps count 3 the inside out hoddie is consistent with that which the respondent can be seen wearing in police CCTV footage of 1 May (the dater of count 1, 14 May (the date of count 3), 15 may (the date of counts 4, 5 and the police pursuit). He is also seen wearing that hoddie in a photograph stored on the mobile phone alleged to be his (image 85) In counts 1,2 and 5 a distinctive black backpack with red Adidas stripes was used. Such a backpack was found in the stolen car after the police pursuit and another two were found at the respondent's home c. distinctive weapons were used in counts 1,2,3 and 5, namely a tomahawk and at least one knife. On the evidence out of 92 armed robberies between 1 and 30 May only the robberies the subject of these counts involved use of tomahawk. d. in the hours preceding each offence the respondent is captured on CCTV footage wearing clothes in part if not entirely identical to those worn by the person alleged to be him: Count 1 - same shoes, track pants, and hooded jumper (reversed) Count 2 - same track pants Count 3 - same track pants and shoes The police pursuit and therefore inferentially counts 4 and 5 - same shoes distinctive jeans (with a white 96 on the back left thigh) and jumper e. counts 2,4,5 and the police pursuit, telephone material placing the respondent at each location where the crime was committed at the time it was committed f. counts 2,4 and 5 telephone material placing the respondent at his home at the beginning of the sequence and between counts 4 and 5 and at the end of the sequence, after count 5 g. the police pursuit commenced when the stolen car it is alleged the respondent was driving aborted entry into the driveway of the apartment block where the respondent lives." 9In my view her Honour's error in her approach to the exercise which s 98 required, flowed from her separate consideration of the evidence as to each of these events and circumstances, without necessary consideration being given to the evidence as a whole. 10The evidence as to the events and circumstances which on the Crown case could not have occurred coincidentally, was examined in order to determine whether it established similarities between the offences. What was not undertaken was the evaluative exercise required by s 98 by reference to all of the events and circumstances relied on, in order to determine whether it was improbable that they had occurred coincidentally. 11Her Honour's error was revealed by her conclusions that: "I do not accept that the coincidental nature of the related events allows the inference to be drawn that all of the offences were committed by [MR]. Although there is circumstantial evidence relevant to each individual count, there is no evidence directly linking [MR] to one or more of these offences as there was in Ceissman [R v Ceissman [2010] NSWCCA 50]. In my view, there is nothing like the striking similarities, as were present in Ceissman, nor, for example in R v Ellis [2003] NSWCCA 319, where the signature nature of the modus operandi was described as 'one of the most powerful examples of tendency and coincidence evidence' by Latham J in Ceissman. There was a very distinctive modus operandi in Ellis, which was also used in an offence for which Ellis had already been convicted. Although the robberies in the present case had certain similarities, there were also some significant differences and there was nothing significant to distinguish them from other armed robberies where young men wearing hoodies, face masks of some description and carrying weapons such as knives and on occasions tomahawks, which are unfortunately relatively commonplace in Sydney. There is no evidence that the same axe or tomahawk was used, although there was an assertion that the tomahawk was found in the stolen Yaris. However, the Crown conceded during this hearing that the tomahawk was not found." 12These conclusions were factually incorrect, as Beech-Jones J has explained. There was evidence which linked the respondent to each offence. In the case of some of the counts it was not strong, but in relation to others it was quite strong. Further, the evidence established that armed robberies involving a tomahawk are not commonplace and all those about which evidence was given involved at least some of the group of offenders of which, on the Crown case, the respondent was a member. As Latham J discussed in Ceissman at [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)." 13Even so, her Honour did find that the evidence established that the offences shared certain similarities. Thus, as Whealy JA explained in DSJ v R at [72], her Honour was 'required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue'. As Latham J explained in Ceissman at [16] the test is one of capability, that is, is it open to the jury to conclude from the evidence that the offences were committed by the same offenders? 14That exercise, when the similarities which her Honour did not appreciate were taken into account, clearly revealed her Honour's error. 15The exercise required no evaluation of the actual weight of the evidence, or any prediction about the weight that might actually be assigned to any aspect of the evidence by the jury. What had to be assessed was the role that the evidence, if accepted, would play in the resolution of the disputed fact, that is its capacity to contribute to the resolution of the question of whether the respondent was one of those who participated in each offence. 16When the true nature of the evidence the subject of the coincidence notice was appreciated, the unavoidable conclusion was that, if the evidence was accepted, it did have the capacity to contribute to the resolution of the question of the respondent's participation in each offence. In the result it had to be concluded that the evidence had 'the capacity to rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue' in the case of each offence (s 55). Further, it was apparent that the evidence had the capacity to establish that fact. 17Consideration also had to be given under s 98(1)(b) to whether the occurrence of the events, which the Crown contended were unlikely to have occurred coincidentally, had significant probative value, that is, in rationally affecting the probability that the offences were committed by the same offenders. 18Her Honour considered that the evidence lacked significant probative value, but did not explain why. Given the evidence as to the use of the tomahawk in each of the four armed robberies, it was, however, clearly open to a jury to conclude that it was improbable that its use was coincidental and more likely to have been because the robberies involved common offenders. When that was considered with the other evidence connecting the respondent to the various offences, the significant probative value of the coincidence evidence the Crown sought to rely on, was apparent. 19The question of whether a hypothetical jury would be likely to find the evidence of importance, or of consequence, in coming to a conclusion about whether the respondent was one of the offenders involved in each of the offences the subject of the five counts and the s 166 notice, thus unarguably had to be answered yes. In the result the error into which her Honour fell was clear and the appeal had to be upheld. 20BEECH-JONES J: On 27 February 2013 the respondent, referred to in this judgment as "MR", was arraigned in the District Court on an indictment that contained five counts. Four of the counts alleged that he committed robbery whilst armed on each of 1 May 2011, 8 May 2011, 14 May 2011 and 16 May 2011 respectively contrary to s 97(1) of the Crimes Act 1900. The other count alleged that on 15 May 2011 he committed an offence contrary to s 154C(2) of the Crimes Act, commonly referred to as "carjacking". In addition MR had been charged with an offence concerning a police pursuit after the last robbery. The Court was not advised of the provision said to be contravened, although presumably it was s 51B of the Crimes Act. This is before the District Court to be dealt with in accordance with Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986. 21On 5 March 2013 a District Court judge gave judgment following a voir dire. Her Honour ruled that certain evidence referred to in a "coincidence notice" served by the Crown was not admissible for coincidence purposes (the "evidentiary ruling"). Her Honour also made orders severing the counts on the indictment and ordering separate trials on each of counts 1, 2 and 3 and a separate trial on counts 4 and 5 (the "severance order"). 22The Crown appealed against the evidentiary ruling and against the severance order pursuant to ss 5F(3A) and 5F(2) of the Criminal Appeal Act 1912 respectively. The appeal was heard on 19 September 2013. The Court was advised that MR's trial was listed to commence on 28 October 2013. 23At the conclusion of argument the Court allowed both appeals and ordered that: 1. The ruling of Quirk DCJ on 05.03.13 that the material set out in the coincidence notice dated 26.02.13 as amended is not admissible for coincidence purposes be set aside. 2. The material set out in the coincidence notice dated 26.02.13 as amended be admitted for coincidence purposes. 3. The order made by Quirk DCJ on 05.03.13 severing the counts on the indictment be set aside. 4. The notice of motion filed 27.07.12 by the respondent in proceedings number 2011/163025 be dismissed. 24The Court indicated that reasons for its decision would be given at a later time. What follows are my reasons for joining in the Court's orders of 19 September 2013. The Crown case 25It is necessary to describe the Crown case in some detail. 26The first armed robbery was committed on the evening of Sunday, 1 May 2011, at a "Hungry Jack's" restaurant at Glenwood. CCTV footage depicts four males entering the restaurant. They stole $4,000 from the cash register which was placed into a black bag with three red stripes on one side. They also stole a patron's mobile phone. One of the offenders, said to be MR, was seen with a wooden handled axe. He was wearing a white hooded, dark coloured long sleeve jumper. He was also wearing black Puma pants with a white stripe three quarters down the outside of each leg and a Puma logo on one side. Two of the offenders were wearing black hooded jumpers with a white "Sean John" logo across the chest. One of these offenders was wearing tracksuit pants with white diagonal lines down the side. The fourth offender, said to be the co-accused "K", was holding a knife and wearing a white "hoodie" jumper with a black tag at the back of the neck, and grey track pants with black pocket lining and a logo on the right rear side of the pants. 27The second armed robbery was committed at a "McDonald's" restaurant at Waitara in the evening of Sunday, 8 May 2011. There was both surveillance footage and eye witness evidence of the robbery. Two males were said to be involved. One of the offenders, said to be MR, was wearing the same style of Puma pants noted in [26] above. The offenders were armed with a knife and a tomahawk. One of them was carrying an Adidas brand backpack with three diagonal stripes. The offenders stole $400 in cash and an iPhone 3 mobile from an employee. The offenders left on foot and were seen to enter and leave in a red Honda Civic motor vehicle. A "000" call from the scene records one of the patrons recounting the registration plate of the vehicle as "AL-45- VT". 28The third armed robbery was committed at the "Top Drop Bottle Shop" at Seven Hills on the evening of Saturday, 14 May 2011. There was also CCTV footage and eye witness evidence for this robbery. It was committed by three males. One of them had a knife, another had a tomahawk and the other had a black backpack. 29At around 9.35pm on Sunday, 15 May 2011, three males committed the carjacking. The victim stopped his black Toyota vehicle in the driveway of his home in Baulkham Hills. One of the three males demanded his keys. When he refused one of them attempted to punch him and missed, but the victim fell to the ground. He was kicked on the ground and the vehicle was stolen. 30The fourth armed robbery was committed later that evening at around 12.05am at a McDonald's restaurant at Croydon. It was captured on CCTV footage. Three offenders were seen to enter the restaurant. One was armed with a knife, another with an axe and the third was carrying a knife and an Adidas brand backpack with three red diagonal stripes. They stole $2,500 in cash. They escaped on foot and were seen to enter the Toyota vehicle that had been stolen earlier that evening. The Crown alleged that MR was the driver of the vehicle. 31Approximately fifteen minutes later police spotted the vehicle drive into a driveway at Blaxcell Street, Granville. A pursuit ensued. The stolen vehicle stopped, four occupants exited the vehicle and ran in different directions. Two of the occupants were apprehended, being the co-offenders N and Z. A police photo of the driver exiting is said to depict MR. His fingerprints were found on the outside of the rear passenger window. Located within the vehicle was $1,500 in cash, two black hooded jumpers with "Sean John" in white written across the front, and an Adidas brand black backpack with three red diagonal stripes. A beanie found in the vehicle contained DNA matched to a co-accused, K. One of the "Sean John" jumpers had DNA from one of the co-accused who was apprehended, Z. It is not clear whether a tomahawk was found inside the vehicle (see [48]). 32MR was arrested the next day, on 17 May 2011, while leaving the premises at Blaxcell Street, Granville. K was also arrested in the driveway of those premises. The Crown contends that he had in his possession the mobile phone that was stolen from an employee of the McDonald's restaurant during the second armed robbery. Furthermore, K was the registered owner of a red Honda Civic with the registration plate bearing the number "AL-45-VY". The similarity between that and the vehicle used in the second armed robbery was obvious (see [27). 33A search warrant was executed on a unit at the premises at Blaxcell Street, Granville. Police surveillance evidence indicated that MR and K lived at those premises. During the search there was located a pair of black Puma pants with a white stripe extending down three quarters of each leg. As stated, the CCTV footage of the first armed robbery and the second armed robbery shows one of the offenders wearing this style of pants. In addition, CCTV footage of MR reporting to a police station for bail in the afternoon before those robberies were committed shows him wearing that style of pants. 34Further, another search warrant was executed on premises at Werrington on or about 8 June 2011. Grey track pants similar to those worn by one of the offenders in the first armed robbery were seized from K. 35The Crown also collated some evidence concerning the usage of a mobile phone or at least a "SIM card" associated with MR. The surveillance commenced on 8 May 2011. It indicates that from around 7.27pm on 6 May 2011 the phone (or SIM card) was activated in the "area" of Waitara where the second armed robbery occurred. It appears that the cell tower that recorded the activity has a circle of coverage that is approximately 2 km in diameter. The phone or SIM card was also placed in the Baulkham Hills area at the time of the carjacking on 15 May 2011 and in the Croydon area at the time of the fourth armed robbery in the very early hours of 16 May 2011. The coincidence notice 36It is evident from the above that there were obvious similarities between the four armed robberies. They were committed in the same general area. Each of the targets was either a fast food or drink outlet. They were each described as being "soft targets", in that they were busy retail outlets that could be expected to have cash that was readily available because of their dealings with the public. In each of the four robberies one of the offenders was carrying an axe or tomahawk. The evidence before her Honour was that the use of an axe in robberies was rare, although her Honour found to the contrary. A review of the CCTV footage reveals that the offenders were dressed similarly. As indicated, one of the offenders, said by the Crown to be MR, was wearing "Puma" pants with a white stripe extending three quarters of the way down the trouser leg in the first and second robberies. In both the first, second and fourth robberies, two of the offenders were wearing black hooded jumpers with a "Sean John" logo across the front (in the likeness of those found in the stolen Toyota). 37In this Court counsel for MR conceded that there was no doubt that the robberies were "similar" in the sense that they were committed by the same group or subgroup of offenders, but contended that the question was whether there was "enough evidence to include [MR] in them". The concession of similarity was undoubtedly correct although it does not appear that the matter was argued before her Honour on that basis. 38On or about 26 February 2013 a solicitor from the Office of the Director of Public Prosecutions sent to MR's solicitors a document entitled "Notice: Coincidence evidence". The notice attached a schedule summarising the evidence pointing to MR's and the co-offenders' connection to each of the offences. The notice referred to "two or more events" which were the "presence of [MR's] mobile telephone in close proximity" to various locations of relevance to the offences, the similarity in clothing between that either worn by or connected to MR and his co-offenders and that said to be used in the armed robberies, and the similarity in the weapons and other items used in the armed robberies (and their connection to MR and the other offenders). The notice stated that this evidence was sought to be tendered to prove that MR "did a particular act, namely the Glenwood robbery, the Waitara McDonald's robbery, the Top Drop robbery, the carjacking, the Croydon McDonald's robbery, and the police pursuit". 39Senior Counsel for the Crown conceded the notice utilised "unusual drafting". In particular, it is not easy to ascertain from the notice exactly what are the "events" for the purposes of s 98 that the Crown contended it was improbable "occurred coincidentally", and what was said to be the evidence of that "event". In any event neither before her Honour nor before this Court was any point taken concerning the form of the notice. 40At the commencement of the voir dire, the Crown provided written submissions. They identified the relevant "events" as being the offences on the indictment, and clarified that the Crown contended that it was improbable that they occurred "coincidentally - that is, it is improbable that the offences in the indictment were committed by different person[s]". Instead the Crown contended they were committed by the same group or subgroup of offenders. In effect the Crown contended that the jury could reason from a demonstrated connection between MR and one or more of the offences on the indictment and the similarities between the armed robbery offences that he was involved in all of the offences. (It was common ground that the carjacking should be considered together with the fourth armed robbery.) In the end result this meant that the voir dire was conducted on the basis that what was in issue was the admissibility of all the evidence on each of counts 1, 2 and 3 as well as 4 and 5 (considered together) as evidence on the other counts by the use of coincidence reasoning of the kind referred to in s 98(1). The evidentiary ruling and this Court's orders should be so understood. 41The Crown's written submissions on the voir dire identified some matters that were described as "similarities" and others as "striking similarities" between the armed robbery offences. The former were said to be the nature of the targeted retail outlet, the number of offenders, being four in the case of both the first and fourth armed robbery offences, the clothing used, and that the person alleged to be the accused in each offence had similar height and weight and appeared to move in a similar way. The latter was said to comprise the particular clothing worn in some of the offences, the distinctive weapons that were used, especially the tomahawk, the telephone surveillance material, and the parking of the car stolen in the carjacking in the driveway at the residence of MR and K after the police pursuit. 42Finally, one of the "striking" similarities was said to be the fact that "on each occasion, the same - or similar - group was involved". This was a reference to the evidentiary schedule attached to the coincidence notice pointing to the involvement of each of the accused, including MR, in the offences. On its face this suggests that there was a circular aspect to this and some of the other assertions by the Crown in that, as expressed, the alleged fact of MR's involvement in each offence was being pointed to as a similarity between the armed robbery offences in an effort to prove that MR was involved in them. 43However, as a matter of substance, not all of this aspect of the Crown's reasoning in this respect was circular. There was an overlap between some of the alleged similarities between the identified events and the matters said to connect MR to those armed robberies. For example, according to the Crown one similarity between counts 2, 4 and 5 was the presence of MR's mobile phone or SIM card in the area of the carjacking offence and the second and fourth armed robbery offences around the time they were committed. That said, both the coincidence notice and the Crown's submissions before her Honour reveal a failure to delineate between identifying similarities between the armed robberies and matters pointing to a connection between MR and any particular offence. Her Honour's judgment 44The voir dire occupied four days with submissions concluding on 4 March 2013. Her Honour gave ex tempore reasons the next day, on 5 March 2013. After reciting aspects of the Crown case and the terms of the coincidence notice, her Honour referred to the Crown's submissions, noted above. Her Honour noted that some aspects of the offences were said to bear "similarities, albeit not striking ones" and then noted the matters said by the Crown to be "striking similarities". 45Her Honour addressed each alleged similarity. Her Honour noted that there were a different number of offenders in the second and third armed robberies (two and three respectively) and it was not known whether there was a driver involved in the first armed robbery offence. In so far as the Crown relied on the alleged physical similarity of the person said to be the offender in each offence, her Honour considered that contention but gave it little force given the "resolution and clarity of the CCTV images". Her Honour compared video taken of MR at Parklea Gaol and concluded that there was nothing "particularly distinctive about the person" alleged to be MR in each offence. 46In relation to the alleged "striking similarity" arising out of the use of distinctive weapons, especially the tomahawk, her Honour recounted that the officer in charge of the investigation had given evidence that of the 92 armed robberies reported to police between 1 and 30 May 2011 only four had involved a tomahawk, being the those the subject of these proceedings. However her Honour further noted: "However, evidence given by the officer in charge during cross examination reveals that there were also two earlier robberies in which a tomahawk was used, namely one on 31 March at a service station at Pendle Hill where one of the two robbers had an axe and the other a knife and are identified as two offenders nominated in these matters, [Z] and [N], and in another robbery on 4 April 2011 an axe was employed and a person not said to be involved in these offences, by the name of [H], has been arrested in respect of that matter. It is not asserted, as I understand it, that this accused, [MR], was implicated in those two earlier robberies." In relation to the robbery on 4 April 2011 referred to in this passage, the evidence of the officer in charge was that all three of MR's alleged co-offenders were involved in that offence along with another person, being H. 47In relation to the distinctive clothing said to have been worn by MR in the first to third armed robberies, especially the Puma pants, her Honour found that it was a matter that "could connect or link the accused to those individual counts", but added that it "do[es] not disclose ... striking similarities between the counts themselves". In relation to the "Sean John" hoodies, her Honour noted that "there was nothing to connect [MR]" with wearing them such as the DNA. Otherwise her Honour accepted a submission made on behalf of MR that the clothing and backpack worn or carried by the offenders were "commonly available in shopping centres throughout the State and are not particularly striking". Finally her Honour noted that the evidence concerning his mobile phone and cell tower records "is circumstantial evidence which, taken at its highest, places [MR] in the vicinity of and could implicate him in three of the five robberies". 48Her Honour's conclusion in relation to the evidence was as follows: "The principal fact in issue in the present case is ultimately whether [MR] took part in each of the five armed robberies, either by physically taking part in the robbery itself or being involved as a driver in Count 5 and possibly Count 4. To put it another way, was [MR] one of four armed robbers in Count 1, one of two armed robbers in Count 2, one of three armed robbers in Count 3 and either one of the three men who approached and car-jacked the victim in Count 4 or was somewhere nearby, and was the driver, although not one of the armed robbers, in Count 5. I do not accept that the coincidental nature of the related events allows the inference to be drawn that all of the offences were committed by [MR]. Although there is circumstantial evidence relevant to each individual count, there is no evidence directly linking [MR] to one or more of these offences as there was in Ceissman [R v Ceissman [2010] NSWCCA 50]. In my view, there is nothing like the striking similarities, as were present in Ceissman, nor, for example in R v Ellis [2003] NSWCCA 319, where the signature nature of the modus operandi was described as 'one of the most powerful examples of tendency and coincidence evidence' by Latham J in Ceissman. There was a very distinctive modus operandi in Ellis, which was also used in an offence for which Ellis had already been convicted. Although the robberies in the present case had certain similarities, there were also some significant differences and there was nothing significant to distinguish them from other armed robberies where young men wearing hoodies, face masks of some description and carrying weapons such as knives and on occasions tomahawks, which are unfortunately relatively commonplace in Sydney. There is no evidence that the same axe or tomahawk was used, although there was an assertion that the tomahawk was found in the stolen Yaris. However, the Crown conceded during this hearing that the tomahawk was not found. ... I find that the evidence sought to be adduced as coincidence evidence lacks significant probative value and, therefore, does not meet the threshold requirements of s 98." (emphasis added) 49Her Honour also addressed s 101 of the Evidence Act 1995, finding as follows: "In any event, as the defence submits, applying the test in s 101(2), even had I found that the evidence had significant probative value, the application of that test would lead to a decision that the probative value of the evidence does not substantially outweigh any prejudicial effect it may have on the accused. There is a real risk that prejudice may arise from possible speculation and assumption by a jury in relation to the proposed coincidence evidence. As I have already said, the striking similarities in Ceissman are not present here and there are a number of significant differences between each of the counts and even in the alleged role of the accused. The defence will assert that the pool of offenders from which the actual offenders in these counts come was more numerous and that some of its members may have been involved in other offences as set out above. In the present case, the evidence implicating the accused, particularly in relation to Counts 1 and 3, is of little significant probative value and there is a real danger that the jury would use the proposed coincidence evidence and conclude, despite any directions of law, that the accused was one of the offenders involved in each of these offences." 50Finally her Honour addressed MR's application to sever the counts on the indictment and found: "The accused seeks orders that Counts 1, 2 and 3 each be heard separately from the other counts and Counts 4 and 5 be heard together but separately from Counts 1, 2 and 3. In respect to the separate trials issue, it was said by Brennan J in R v Sutton [sic] [1984] 152 CLR 5: 'When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect of which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.' I am satisfied that the jury's conclusion on any one matter is likely to bear upon its conclusion on other related matters, despite any directions to the contrary, and I order separate trials as sought in the notice of motion." Subsections 5F(2) and (3A) 51As stated, the Crown's appeal against the evidentiary ruling was brought pursuant to s 5F(3A) of the Criminal Appeal Act and the appeal against the severing of the counts on the indictment was brought under s 5F(2). Section 5F states: "5F Appeal against interlocutory judgment or order ... (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. ... (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 52Thus a threshold question arose in relation to the appeal under s 5F(3A), namely whether the relevant ruling eliminated or substantially weakened the "prosecution's case". 53In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [40] Spigelman CJ stated that the Court should address s 5F(3A) "on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury" and that no investigation of the credibility or reliability of the evidence in question should be undertaken. Shamouil involved a successful Crown appeal against the exclusion under s 137 of the Evidence Act of an out of court photoboard identification of the accused. 54Thus in most appeals under s 5F(3A) the threshold question is addressed by considering the effect of the rejected evidence on the assumption that it is before the jury and without regard to questions of credibility or reliability. However one feature of s 98(1) is that it is an exclusionary rule that prevents evidence being before a jury for a particular purpose unless it has significant probative value. If the Court was to conclude that the primary judge was correct to find that s 98(1) was not satisfied in relation to the evidence the subject of this appeal because, irrespective of matters of weight or reliability, it does not have significant probative value, then at least in this case it would necessarily follow that a Crown case that was denied that evidence would not be substantially weakened. However it is not necessary to consider this further because I consider that the primary judge was in error and that her Honour was bound to find that the evidence had significant probative value. 55Otherwise it is apparent from the recitation of the Crown case above that, if the evidence in respect of counts 4 and 5 is not available in respect of each of counts 1, 2 or 3, then the Crown case on each of those counts is substantially weakened. The evidence directly connecting MR to each of those latter counts is not particular strong. With count 3, ie the third armed robbery, it only consists of some similar clothing. 56However, the evidence directly connecting MR to counts 4 and 5 is very strong and almost overwhelming. His fingerprints were found on the car stolen in the carjacking and used in the fourth armed robbery. The car was eventually parked at premises he resided in along with K. His mobile phone was in the vicinity of the McDonald's restaurant in Croydon at the time of the robbery. There is said to be a picture of him exiting the car during the police pursuit. If that evidence is available to be used with counts 1, 2 and 3 via the use of the type of reasoning referred to in s 98(1), as explained at [40], then the prosecution case on each of counts 1, 2 and 3 is considerably strengthened. However the reverse conclusion does not apply with counts 4 and 5. 57No argument was directed to whether the reference to the "prosecution's case" in s 5F(3A) is a reference to every count on an indictment, one count or some other concept. It seems likely that it is a reference to the "prosecution's case" as presented, ie every count. Further, in this case the Crown also appealed the order severing the counts on the indictment. The sole basis for that decision was the evidentiary ruling. Given that circumstance, the correctness of the evidentiary ruling in respect of all counts can also be challenged as part of the appeal under s 5F(2). 58One further matter should be noted. Neither form of appeal invoked by the Crown requires a grant of leave. It follows that, even if any error on the part of the trial judge was caused by or contributed to by the Crown, that does not enable the Court to avoid determining the appeal, although it could affect the discretion to grant relief under s 5F(5) of the Criminal Appeal Act in an appropriate case. It is unnecessary to consider this further as it was not submitted that any relief should be refused to the Crown on some discretionary basis by reason of anything that was done or not done at first instance. Coincidence evidence 59Sections 55, 95, 98 and 101 of the Evidence Act provide: "55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. ... 95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. ... 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. ... 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 60The above form of s 98 was introduced into the Evidence Act with effect from 1 January 2009 by the operation of the Evidence Amendment Act 2007 (Act No 46 of 2007; s 3 and schedule 1). It replaced the form of s 98 that was considered in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504, which provided: "98 The Coincidence Rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. (3) Subsection 1(a) does not apply if: ..." 61Section 98 in both of its forms was intended to establish an exclusionary rule that is designed to prevent the adducing of evidence for a particular purpose or, more accurately, that seeks to invoke a particular form of probabilistic reasoning designed to establish a particular fact or state of mind, unless it has significant probative value. Thus the current provision refers to the tendering of evidence on a particular "basis". The former provision used the phrase "not admissible to prove ... because", which directed attention to the reason the adducing party sought to adduce the evidence. 62Subsection 3(3) of the Evidence Act provides that certain reports of the Australian Law Reform Commission concerning the Act and amendments made to it may be used as an aid to interpretation. In "ALRC Report 102: Uniform Evidence Law Report" at [11.20] to [11.25] the Commission discussed the proposal that led to the introduction of the current form of s 98. At [11.25] it stated: "The intention of the proposal is that s 98 will apply where the tendering party argues that the evidence is relevant to the issues in the case on the basis of improbability reasoning and that reasoning turns on similarities between the events, or in the circumstances surrounding these events, or both." 63It is apparent from the discussion in that report, which in turn refers to the discussion in Chapter 10 of "ALRC Discussion Paper 69: Review of the Uniform Evidence Act" ("DP 69"), that there was a concern that the former s 98 was too narrowly expressed. In particular it was thought that s 98 was not engaged in many circumstances where the tendering party sought to rely on coincidence reasoning that invoked similarities between events and the circumstances surrounding them, but those similarities were not such as to fall within former s 98(2) (DP 69 at [10.21]). In those circumstances, assuming the evidence said to support this reasoning passed the threshold requirement of relevance found in s 55, the question of whether or not it should be excluded or admitted fell to be determined according to the discretions conferred by ss 135 and 137 of the Evidence Act, but not by s 98. In that regard it is important to note that s 137 does not apply to civil proceedings, whereas s 98 does. 64Nevertheless, even the rule created by the current form of s 98(1) does not apply to all forms of probabilistic reasoning that seek to disprove a contention that various things may have happened coincidentally. In this case the fourth armed robbery is an obvious example. It is apparent from the above that there is a strong collection of circumstantial evidence directly linking MR to that count including his fingerprints on the car used as a getaway for the fourth armed robbery, the presence of his mobile phone in the area of the robbery at or near the time of the offence, the fact that the car was ultimately parked in the driveway of a place he resided in and his connection to some of his alleged co-offenders, two of whom were caught red-handed in the chase after the robbery occurred. Some of these matters may be capable of explanation on the basis that they are mere coincidences, however it appears difficult to explain the presence of all of them. However, if the Crown only sought to rely on these matters to establish MR's guilt on counts 4 and 5, that would not engage s 98(1). Even if the various matters suggesting he committed those offences could be characterised as "events", no part of any such reasoning involves any attempt to prove his involvement on the "basis" that it was improbable that those events occurred coincidentally "having regard to any similarities in [those] events or the circumstances in which they occurred". 65One textual difference between the former s 98 and the current s 98 concerns the location within the section of the reference to "similarities" between the two or more events and the circumstances surrounding the events. Former s 98 was only engaged if the evidence concerned "two or more related events", as defined in s 98(2). Thus in Zhang at [140] Simpson J identified an "anterior step" to considering whether the evidence had "significant probative value", namely "determin[ing] whether two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar" (see also R v Ceissman [2010] NSWCCA 50 at [8] per Latham J). 66Under the current version of s 98 there is no longer a threshold or anterior inquiry of this kind. This reflects the apparent purpose of the amendment, which was to broaden the body of evidence that engaged s 98 and subject it to the test of having significant probative value. However, although the anterior inquiry identified in Zhang at [140] is no longer applicable, it is still necessary at the outset for the tendering party to identify the reason they seek to tender the evidence in question in order to establish whether it is seeking to invoke the "basis" referred to in s 98(1). As part of that process the tendering party will need to identify the "events" that are said to have occurred, the particular act or state of mind that it is said that the evidence of the events proved, the relevant similarities that are to be relied upon and the reasoning process that is sought to be engaged. 67When these matters are specified the Court can then address ss 55 and 98. In DSJ at [66] Whealy JA (with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed) approved, subject to three qualifications, the following propositions that had been distilled by Simpson J in Zhang (at [139]) concerning the determination of whether evidence caught by s 98 satisfies the test of relevance in s 55 and significant probative value in s 98(1): "(i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, first, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; second (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted." (emphasis in original) 68The first qualification was that s 98 had been amended since the decision in Zhang (DSJ at [67]). DSJ concerned the current form of s 98, whereas Zhang concerned the previous version set out in [60]. Whealy JA stated that the "differences [between the two versions] need to be factored in". I have already identified one difference flowing from that change (at [65] to [66]). 69The second qualification was to note that the discussion in Zhang was not meant to "supplant or replace the language of the section" but was instead directed to explaining the process to be undertaken by a trial judge (DSJ at [67]). 70The third qualification was that the second part of the fifth proposition in Zhang concerning the assessment of "significant probative value" was reformulated as follows (at [72]): "... if a hypothetical jury would think it unlikely that the evidence were important in relation to the facts in issue then the trial Judge might the more readily conclude that the evidence lacks the capacity required for admissibility. Simpson J's formulation [in Zhang] recognises that the trial Judge has no part to play in the evaluation of the actual weight to be given to any of the evidence or to its ultimate assessment. The substance of her Honour's formulation is that the trial Judge is required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue. In undertaking that task, the statute also requires, as her Honour recognised, that the evidence may be examined on its own account, or by having regard to other evidence adduced or to be adduced by the tendering party." (emphasis added) 71Furthermore, DSJ confirms that in evaluating whether the evidence has significant probative value the trial judge must consider, by reference to the evidence itself or other evidence adduced by the tendering party, the existence of alternative inferences inconsistent with guilt, although they are not to consider evidence tendered by the resisting party nor weigh the credibility or the reliability of the evidence (DSJ at [10] per Bathurst CJ, at [11] per Allsop P, at [130] per Whealy JA, at [135] per McClellan CJ at CL and [136] per McCallum J). 72The application of s 98(1) in its current form can be illustrated by the facts in Ceissman. Ceissman involved a Crown appeal from, inter alia, the rejection of coincidence evidence. The respondent to the appeal faced 22 charges arising out of "five separate criminal enterprises", each said to have been committed by two men and to have various similarities such as the identity of the premises that were robbed, the method of gaining access, the timing of the robbery and the clothing worn, etc (at [3]). The identity of one of the offenders was known and the only issue was whether the respondent was the other one. 73At [8] of Ceissman, Latham J noted that the trial judge had correctly undertaken the anterior inquiry described in Zhang, but which is no longer applied. Then, by reference to the two stage test set out in the fifth proposition from Zhang noted above at [67], Latham J identified the reasoning sought to be relied on by the Crown in that case and the trial judge's obligation as follows (at [15] to [16]): "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 ([the co-offender'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 [the co-offender] 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. 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 [from Zhang] 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." 74In this passage her Honour identified how the evidence of the related events was capable of proving the first step in the reasoning process sought to be relied on by the Crown in that case so as to satisfy s 55; ie that the offences were committed by the same offenders. Her Honour then explained how the test of significant probative value was applied to that evidence by having regard to the evidence concerning steps (ii) to (v). Consistent with the former (and current s 98), the test of significant probative value was assessed in relation to its capability of proving that a person "did a particular act or had a particular state of mind", in that case the commission of the offences in question. This second step was the relevant part of Zhang that was reformulated by Whealy JA in DSJ, but that reformulation does not affect this part of Latham J's analysis. 75Ceissman illustrates how it is important to distinguish between the two steps noted in Zhang and endorsed in DSJ. In particular the relevant "fact" at each step of the analysis is not necessarily the same. This is so because s 55 establishes a threshold for relevance assessed against a "fact in issue" whereas s 98 is directed to evidence being "admissible to prove that a person did a particular act or had a particular state of mind". There is an obvious analogy between the facts in Ceissman and this matter although one potentially important difference is that in Ceissman the number of offenders for each offence was the same whereas in this case it is different. This is further addressed below at [95]. 76Two further matters should be noted about the assessment of significant probative value. 77First, there is nothing in the statutory scheme or the authorities that requires that, before evidence of the events can be assessed as having significant probative value, the events or the circumstances in which they occurred have "striking" similarities or the like. This is confirmed by the brief history of the current form of s 98 set out above which reveals that the section was amended to expand the evidence that was to be the subject of the test of having significant probative value, but not necessarily require its exclusion. 78The assessment of whether the evidence has significant probative value must address the basis upon which the evidence is sought to be tendered. This in turn requires a consideration of the suggested similarities between the identified events and the circumstances in which they occurred to ascertain whether, when taken with any other evidence that is led or to be led by the adducing party, they have the "capacity to be of importance or of consequence in establishing the fact in issue" (DSJ at [72]). No doubt in many, if not most, cases the stronger the similarities between the events and their circumstances and the greater their number the more likely that the tendering party will satisfy the statutory test, depending on what particular fact was sought to be proved and what other evidence is to be adduced. However, neither any individual similarity, nor any collection of similarities, must answer the description "striking". 79Second, given that s 98 is addressing evidence that is put forward to invite the trier of fact to engage in a particular form of probabilistic reasoning, it necessarily follows that the assessment of whether the evidence of the relevant events has either probative or significant probative value requires a consideration of the combined effect of all the relevant similarities. Unless they are all considered then the "basis" upon which the evidence is put forward, namely that it is "improbable that the events occurred coincidentally" and that instead the events are explicable by reason of the particular act or state of mind sought to be proved, such as the involvement of the same offender or offenders in all the events, cannot be properly addressed. The Crown's appeal against the evidentiary ruling 80In support of its appeal against the evidentiary ruling, the Crown raised four points. First, it contended that her Honour applied the wrong test in assessing significant probative value in the passages set out in [48] above. Second, the Crown contended that her Honour failed to consider the totality of the suggested similarities between the armed robberies and the circumstances in which they occurred. Third, the Crown contended that her Honour erred in dismissing the relevance of the use of a tomahawk in the armed robberies. Fourth, the Crown contended that her Honour erred in finding that the evidence should be rejected under s 101 "in any event". 81I will address the first three points made by the Crown together. Her Honour's reasons for concluding that s 98(1)(b) was not satisfied are described in [44] to [48] above. As noted, her Honour individually addressed each of the similarities suggested by the Crown. Although her Honour did not expressly say so, her Honour considered whether each one's occurrence at some or all of the armed robberies was coincidental or pointed to the fact in issue, which her Honour identified as MR's involvement. Subject to what follows, there was nothing objectionable in her Honour examining each of the suggested similarities individually at least at the outset. 82As noted at [46], in addressing the relevance of the tomahawk her Honour noted that a tomahawk had been used in two other robberies said to have involved two of the co-offenders approximately one month prior to the robberies said to involve MR. Her Honour noted that MR was not said to be involved in those robberies. Later, her Honour appeared to refer to the use of tomahawks as "relatively commonplace in Sydney". 83This aspect of her Honour's reasoning reveals that her Honour overlooked the "basis" upon which the evidence was being put forward by the Crown, and committed the same error as the trial judge in Ceissman, namely "conflat[ing] the two steps in the analysis set out in Zhang" (Ceissman at [15] per Latham J). 84Leaving aside the circular aspect noted at [42], the first step in the chain of reasoning put forward by the Crown was that the same group or subgroup of offenders had committed each of the four armed robberies. The second step was that there was some direct evidence that MR was involved in each of the offences. The third step was that the combination of those two matters meant that, according to the Crown, it was established beyond reasonable doubt he was involved in all of the offences. These steps are analogous to those identified by Latham J in Ceissman at [15] (see [73]) subject to the qualification that in Ceissman the number of offenders involved in each offence was constant. 85The presence of the tomahawk at the scene of each of the four armed robberies was clearly a similarity between the armed robberies. It was a matter relevant to the first step in the Crown's reasoning. On its face, its presence was unlikely to be coincidental but was more likely to be as a result of the offences being committed by a common group or subgroup of offenders. If the evidence adduced by the Crown revealed that a tomahawk was the weapon of choice for a substantial number of unrelated armed robberies, then that was a matter tending to suggest that its presence at these four was more likely to be coincidental. However the fact that it was used by two of the alleged co-offenders in another two robberies a month earlier did not tend to suggest that its presence at these four armed robberies was coincidental. To the contrary, it reinforced the Crown's contention that it was as a result of those offenders or close associates of theirs being involved in the armed robberies the subject of this appeal. 86By itself the presence of a tomahawk at the scene of the robberies does not point to MR's involvement in these robberies, but the Crown did not contend that it did. Instead the presence of the tomahawk was a matter suggesting that the robberies were committed by the same group or subgroup. The first stage of the test in Zhang required her Honour to consider whether that similarity (and others) was "capable of rationally affecting the probability that the offences were committed by the same offenders" (Ceissman at [16]) or a subgroup thereof. Her Honour did not do that, but instead only considered whether by itself it pointed to the involvement of MR in the relevant offences. This was the elision committed by the trial judge in Ceissman. It meant that her Honour did not address the "basis" of the reasoning put forward by the Crown. It was only at the second stage identified in Zhang that her Honour was required to consider whether the evidence of the events was significantly probative of MR's involvement in the offences. As part of that process her Honour was required to consider the balance of the steps noted in [84] and thus have regard to "other evidence adduced or to be adduced" by the Crown (DSJ at [72]). 87Otherwise her Honour was in error in considering that the evidence indicated that the use of a tomahawk was "relatively commonplace". The evidence was all to the contrary. 88After addressing each of the asserted similarities, her Honour then addressed the test of significant probative value in s 98(1)(b) in the passage extracted in [48] above. Three points should be noted. First, while it is not entirely clear, I accept the Crown's submission that her Honour applied a test that required that there be "striking similarities" between the various armed robberies. In this passage her Honour noted that there was "nothing like the striking similarities" that were present in Ceissman. The reference to "striking similarities" in Ceissman was repeated in that part of her Honour's judgment that addressed s 101 of the Evidence Act (see [49]). Her Honour had earlier discussed and addressed whether the various armed robberies had "striking similarities" (see [45] to [48]). Counsel for MR, Mr Skinner, pointed out that the phrase "striking similarities" was introduced into the discourse by the Crown, and that her Honour was merely adopting the Crown's nomenclature. There is considerable force in that submission. However, I consider that a fair reading of the judgment as a whole reveals that her Honour took that phrase and used it as threshold test. I have explained why it was incorrect to do so (at [77] to [78]). The fact that the Crown may have contributed to this error has already been addressed. 89Second, there is nothing to indicate that her Honour considered the combined effect of all the suggested similarities between the armed robbery offences when assessing whether the evidence had significant probative value (or was even probative). As stated, there was nothing impermissible in considering each of the suggested similarities individually and assessing whether they suggested that the events were coincidental or not. However, for reasons that have already been explained, that does not complete the analysis. All of the similarities must be considered together. 90Third, although it was not the subject of any specific complaint by the Crown, her Honour was clearly in error in stating in the passage noted in [48] that "there is no evidence directly linking [MR] to one or more of these offences". As stated, there is very strong evidence directly linking MR to the fourth armed robbery (and the carjacking). If the similarities in the armed robberies were such that a jury could conclude that they were committed by the same group or subgroup of offenders, then, in respect of the first armed robbery, for example, the evidence of those events was, when considered having regard to the evidence directly connecting MR to the fourth armed robbery (and the second and third armed robberies), probative and, in my view, significantly probative of MR's involvement in the first. 91As noted in [49], although the trial judge determined that the evidence did not meet the threshold test in s 98(1)(b), her Honour nevertheless addressed s 101 of the Evidence Act on the assumption that it had significant probative value. Her Honour concluded that, even in that event, the probative value of the evidence sought to be led would not outweigh its prejudicial effect. However the only "prejudicial effect" that her Honour referred to was that the jury would conclude "that [MR] was one of the offenders involved in each of these offences". If the evidence had been assessed as having significant probative value, then that is the very basis on which it would be admitted, and the use by the jury of the evidence for that purpose would be entirely appropriate. Thus the only prejudice identified by her Honour is that a jury would use evidence tendered for coincidence purposes for coincidence purposes. That would not be a prejudicial use. 92It follows that I accepted all of the Crown's contentions as noted in [80]. Further, each of them raises a basis for reviewing the trial judge's ruling under s 98(1) in that they involve the trial judge either acting on the wrong principle or failing to apply the proper test in a manner which led to a failure to take into account relevant matters, or the taking into account of an irrelevant matter, within the principles stated in House v R [1936] HCA 40; 55 CLR 499 (see Dao v R [2011] NSWCCA 63; 278 ALR 765 at [177] per Simpson J, with whom Schmidt J agreed), or those stated in Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 at 620, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 to 654 (see Dao at [100] per Allsop P and at [211] per Kirby J). For those reasons I joined in order 1 noted in [23]. 93The remaining issue that arose in relation to the Crown's appeal against the evidentiary ruling is whether the evidence the subject of the coincidence notice (see [41]) should be admitted. Stripped of the element of circularity noted in [42], the similarities between the armed robbery offences included (i) the nature of the target, (ii) the use of a tomahawk and a knife, (iii) the presence of MR's mobile phone in the area of three of the robberies at or around the time they were committed, (iv) the similar clothing worn in each robbery and (v) the similar bags used in some of the robberies. Having reviewed photographs taken from the CCTV footage, it is evident that there are physical similarities in height and weight concerning each of the offenders although they are far from determinative. 94Further, the evidence relied on was capable of establishing other similarities, being the involvement of K in three of the four armed robberies and N and Z in two of them (and all of them in the carjacking). Otherwise it is to be remembered that the offences all took place in a short period of time in approximately the same area of Sydney. Applying the first stage of the approach from Zhang, as explained in Ceissman at [16], this evidence is capable of rationally affecting the probability of a fact in issue, namely whether the same group or subgroup of offenders was involved in each offence. The test posed by s 55 is satisfied. 95The next step is to address s 98(1)(b). Consistent with the opening words of s 98(1), the fact addressed at this point is whether MR was involved in each of the offences (see Ceissman at [15] to [16]). To this point I have passed over the significance of there being a different number of offenders in the armed robberies, being four in the first and fourth, two in the second robbery and three in the third. However, the differing number of offenders is potentially a matter of some significance. All other matters being equal, it is a matter that weighs against the evidence of the events being significantly probative of MR's involvement in each offence. Nevertheless, as noted, each of Zhang (at [139]), Ceissman (at [16]) and most importantly DSJ (at [72]), recognises that the evidence of the events can be considered "on its own account, or by having regard to other evidence adduced or to be adduced by the tendering party". In this case, the uncertainty in terms of admissibility that arises from the differing number of offenders with the second and third armed robberies dissipates when regard is had to those parts of the evidence which directly connect him to each of those offences, albeit that evidence is of varying strength and leaving aside questions of credibility or reliability. Of course whether the jury would regard that evidence connecting him each offence as overcoming any uncertainty that arises from the differing number of offenders is a different matter. 96Thus, when regard is had to all of the evidence, the evidence of the related events "has the capacity to be of importance or of consequence in establishing the fact in issue" (DSJ at [72]), namely the involvement of MR in each offence. Accordingly I am satisfied that s 98(1)(b) is made out. No basis for rejecting the evidence under s 101 was suggested. 97For this reason I joined in order 2, noted in [23]. The appeal against severing the indictment 98The reasons given by her Honour for severing the indictment are set out in [50] above. It appears that her Honour regarded the decision to sever the counts on the indictment as consequential upon the decision to reject the coincidence evidence. Her Honour was concerned that the jury's consideration of one count would be affected by evidence led on another count. 99The Crown submitted that her Honour applied an incomplete or wrong test for severance. It contended that the mere fact that evidence is to be led on different counts which is not admissible on all counts does not necessarily justify separate trials. In particular it contended that, before severing an indictment, the Court must consider a range of considerations, being not just the potential prejudice to the accused and whether it can be addressed by a direction to the jury, but also the public interest in the efficient disposition of trials and the avoidance of inconvenience to witnesses (citing R v Oliver (1984) 57 ALR 543; Ceissman at [20] to [21] per Latham J, and KRM v R [2001] HCA 11; 206 CLR 221 at [38] per McHugh J). 100There is considerable force in the Crown's submissions, but it is not necessary to resolve that question to decide the appeal from the severance order. Both before her Honour and in this Court it was conceded on behalf of MR that, should he be unsuccessful in resisting the admission of the coincidence evidence, then his application to sever the indictment would fail. Accordingly, once this Court concluded that her Honour erred in rejecting the coincidence evidence and that it should be admitted, then it followed that the Crown's appeal against the order severing the indictment had to succeed. For those reasons I joined in orders 3 and 4 noted in [23]. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2013