R v Hammond [2018] NSWDC 503

District Court New South Wales

Medium Neutral Citation: R v Hammond [2018] NSWDC 503 Hearing dates: 15 – 16 October 2018 Date of orders: 16 October 2018 Decision date: 15 October 2018 Jurisdiction: Criminal Before: Hunt DCJ Decision: The probative value does not outweigh the unfair prejudice and so evidence will not be admitted Catchwords: CRIMINAL LAW – Judgment – Tendency and coincidence evidence – Admissibility of evidence – Relevance – Probative value - Robbery with an offensive weapon – Knife – Generic robberies Legislation Cited: Crimes Act 1900 NSW Evidence Act Cases Cited: AW v R [2009] NSWCCA 1 El-Hilli and Melville v R [2015] NSWCCA 289. Illievski v R and Nolan v R [2018] NSWCCA 164 R v Bauer [2018] HCA 40 R v BP [2010] NSWCCA 302 R v Gale & Duckworth [2012] NSWCCA 174 R v Matonwal & Amood [2016] NSWCCA 174 R v MR [2013] NSWCCA 236 at [77] Category: Procedural and other rulings Parties: The Crown Ian Brian Hammond Representation: Counsel: M Juhasz – Offender

Solicitors: Director of Public Prosecutions - Crown File Number(s): 2017/178071

Judgment 1. On 15 October 2018, Ian Brian Hammond was arraigned before me on an indictment alleging one offence in breach of s 97(1) of the Crimes Act 1900 NSW that on 12 June 2017 at Flinders in the State of New South Wales being armed with an offensive weapon, namely a knife robbed Simon Shehata of certain property, namely a sum of money, a gold "Citizen" watch, and Antenex (Valium) tablets, the property of Simon Shehata. He pleaded not guilty. 2. Before empanelling the jury, I was invited by the parties to determine a number of linked matters in relation to the admissibility of evidence. Having considered evidence and submissions, I made a number of rulings on 15 October 2018, and these are the reasons for those rulings as made. 3. The Crown makes application that the Court admit identified evidence on both a coincidence and tendency basis pursuant to notices served pursuant to ss 98 and 97 of the Evidence Act. No issues were taken or arose concerning the notice or service of either notice. 4. Mr Hammond has pleaded guilty and awaits sentence in this Court in relation to a robbery of a sum of money at Cash Converters Warrawong on 14 June 2017 (the Warrawong Robbery). 5. In short, the Crown seeks to lead evidence of that robbery and Mr Hammond's admission of guilt in relation to it both for coincidence and tendency purposes. It is proposed, if it ruled admissible, that the key features of that robbery and Mr Hammond's admission of guilt be proved by virtue of a statement of agreed facts pursuant to s 191 of the Evidence Act. . 6. The Crown contends that Mr Hammond was the person who committed the Flinders robbery, which is the robbery on the indictment of 12 June 2017. He was arrested very shortly after the commission of the Warrawong robbery on 14 June 2017 at his residential premises. At the time of his arrest, he was wearing a gold "Citizen" watch which Simon Shehata later identified as the watch taken from him in the course of the Flinders robbery. 7. Upon a search of his residential premises on 14 June 2017, apart from clothing similar to that worn by the offender during the Warrawong robbery, two items of potential relevance were found. First was a backpack which the Crown will invite the jury to consider is distinctive and consistent in appearance with the backpack the person who committed the Flinders robbery was wearing as the robbery took place. 8. The Crown has evidence suggesting that such a backpack was one of 1,000 such backpacks distributed free of charge to clients of Gray's Coaches between 2009 and 2011. It is understood that Mr Hammond's partner has confirmed to the police that the backpack found belonged to Mr Hammond. Second, a "ghost" mask found in some undetermined place within those residential premises. I will deal with the admissibility of any evidence concerning the mask in due course. 9. In the course of argument, the Crown Trial Advocate, properly in my view, conceded that the Crown's application for the relevant evidence to be admitted on a coincidence basis was more powerful than the argument contending for admission on a tendency basis. The tendency contended for in the most recent tendency notice was a tendency to act in a particular way, namely to rob small businesses of small amounts of cash in the Lake Illawarra area between 12 and 14 June 2017. 10. An earlier notice had sought to establish a wider tendency and placed reliance on prior robbery convictions between 2007 and 2013 but had been abandoned in favour of the more narrow notice now relied on. This determination may well have flowed as a result of the determination in Illievski v R and Nolan v R [2018] NSWCCA 164. I ought say the publication of that decision remains currently restricted as to its publication. 11. The Crown contends that similarities in each of the Flinders and Warrawong robberies and the circumstances in which they were committed give rise to the improbability of the two offences occurring coincidentally. The evidence establishes that these were the only two robberies reported to police within the Lake Illawarra area in the time period 12 to 14 June 2017 inclusive. 12. The asserted similarities included commission in the Lake Illawarra area, during daytime, on weekdays on a small business, with a small amount of cash taken. CCTV stills were relied on in relation to the similarity of build of the sole offender in each robbery. Descriptions provided by witnesses varied but included in relation to Flinders: medium build, 170 centimetres tall, Australian, six-foot-tall, Aboriginal appearance, and in relation to Warrawong: 170 to 175 centimetres, light brown complexion, Aboriginal, weight of 70 to 75 kilograms. 13. Other similarities relied on included that both offenders wore a hoodie with the hood up. In relation to Flinders, a dark grey mask covering face or mouth and nose, and in relation to Warrawong, black face cover over the bottom part of face. Demands made in relation to Flinders were: "Give me the money" And in relation to Warrawong: "This is a robbery, where's the money? Get down." In relation to Flinders, the offender came from behind the front counter to the till himself. In relation to Warrawong, the offender jumped over the front counter to the till himself. In each robbery, the offender left on foot. 14. Mr Juhasz for Mr Hammond relied on a number of dissimilarities. In the Flinders robbery, a knife was used and brandished. In the Warrawong robbery, no weapon was sighted although a threat was made; "I'm going to shoot you both." The Crown relied on the test as to similarity having regard to other evidence and contended that the availability for the jury to consider a similar bag was visible in both sets of CCTV footage, and to form a view that on the Warrawong footage, Mr Hammond appears to be wearing a watch consistent with that found on his person and also being the fruit of the Flinders robbery. 15. Conversely, Mr Juhasz contended many of the similarities relied on by the prosecution were generic to robberies. Additionally, he submitted that an eye witness to the offender's retreat from the Flinders robbery failed to pick up Mr Hammond from a photo array, and discussed features of two gentlemen in the photo array that were inconsistent with Mr Hammond's appearance. The relevant sections of the Evidence Act are: 16. Section 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. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding." 1. Section 98(2) provides: "(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. Note: Other provisions of the Act, or of other laws, may operate as exceptions to the coincidence rule" 1. Section 101(1) provides: "(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98." 1. Section 101(2) Provides: "(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 accused."