DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA(2)(b) of the Criminal Code 1899 (Q) by the defence to sever various counts on the indictment.

The charges

2. [2]
   The defendant is charged with the following counts:

1. break and entry and stealing at the North Mackay Bowls Club on 12 January 2009;

2. break and entry and stealing at Subway Rockhampton on 19 June 2011;

3. break and entry and attempted stealing at Super A-Mart North Rockhampton on 19 June 2011;

4. break, entry and stealing at Car Wash Headquarters North Mackay on 25 June 2011;

5. break, entry and stealing at Car Wash Headquarters Rockhampton on 11 July 2011;

6. break and entry at Subway North Rockhampton on 11 July 2011;

7. break, entry and stealing at Subway Sarina on 25 July 2011.

The facts

3. [3]
   Exhibit 2 contains the depositions concerning the matters.

Count 1

4. [4]
   Count 1 involves the North Mackay Bowls Club on 12 January 2009. Russell Cotter the manager of the Club found that the point of entry was through a sliding window (see [13]). A police officer, Alan Hardy in his statement says that a pair of tin snips and a pepper tin were found on a ledge. DNA and fingerprints were located on these items. Alan McNiven, a DNA scientist says that Mr Mason’s DNA was found on the tin snips and an unknown male’s DNA was found on the pepper tin lid.

5. [5]
   I have watched Exhibit 7, the CCTV footage. It is hard to see any clear features of the offender. He clearly uses a torch and probably holds it in his mouth at times whilst emptying the poker machines.

Count 2

6. [6]
   Count 2 involves Subway, Rockhampton on or about 19 June 2011.

7. [7]
   Justin Nothling the owner of Subway found that the entry point was through the roof, the alarm panel was smashed and the safe was opened. Joshua Wyatt the scenes of crime officer found that there was a hole in the roof, there was damage to cabling and a damaged wall safe.

8. [8]
   Exhibit 6 contains a photograph of the hole in the roof. It shows the tin roof cut on 3 sides and carefully pulled back (pages 1-2). Exhibit 7 the CCTV footage shows a male with a light coloured hoodie on. No torch is used but it is fairly well lit. The defence submitted that the offender appears Caucasian. I am not convinced about this. But in any event Mr Mason is not an overly dark skinned man (see Exhibit 4).

Count 3

9. [9]
   Count 3 involves the Super A-Mart, North Rockhampton on or about 19 June 2011. Noel Sands gives evidence that there were cut cables in a Telstra pit outside the shopping centre. Sue Ellen Easton, the sales manager, states that the entry point was a doorway. This is confirmed by Constable Brent Culleton.

10. [10]
    The CCTV footage (Exhibit 7) shows the offender wearing a grey hoodie and there could be yellow markings on the grey jumper.

Count 4

11. [11]
    Count 4 involves the carwash headquarters in North Mackay on 20 June 2011. Peter Millward gives evidence that the cables were severed in a Telstra pit nearby. Ryan Edmonds, the manager of the Mackay carwash, confirms that the entry point was by way of a hole in the roof, phone lines were cut and lines in the Telstra pit were cut. July Heenan, a police officer observed a safe open in the restaurant. Mr Daly a scenes of crime officer saw the point of entry was a hole in the roof and a number of wires were cut.

12. [12]
    Exhibit 6 contains a photograph of the hole on the tin roof (pages 3 and 4). It is very similar to count 2 and indeed 4, 5, and 7.

13. [13]
    The offender in the CCTV footage (Exhibit 7) has a torch in his mouth and is walking around calmly with a t-shirt or something around his head (like that in count 2 and indeed counts 5, 6 and 7). A jemmy bar was used. The Crown alleges that Exhibit 5 at page 30 shows that it looks like the defendant. A jury is certainly entitled to conclude that. There is certainly a reasonable view of the offender’s face.

Count 5

14. [14]
    Count 5 involves carwash headquarters Rockhampton on 11 July 2011. Joshua Wyatt in his evidence says that the entry point was a rectangular hole cut in the roof. The door of the safe was forced open, a telecom box was forced open and wires were protruding. There were several severed cables in the Telstra pit.

15. [15]
    Darren Baker the manager confirms much of this. I also note from the defendant’s banking records that he was in the Rockhampton area on or about 11 July 2011 (Exhibit 3).

16. [16]
    Exhibit 6 shows a very similar hole in the roof (pages 5 and 6).

17. [17]
    For count 5 the video shows yellow markings on the jacket. There is the torch in the mouth, the wrap around the face, and he is calm and using a sledgehammer.

Count 6

18. [18]
    Count 6 involves the Subway at North Rockhampton on 11 July 2011. Ashley Wright a co-owner noted that the entire security system had been ripped from a wall, there was a hole in the roof. Tanya Reus a scenes of crime officer confirms this in her evidence. Again I note that the defendant was in the Rockhampton area on that date (see banking records - Exhibit 3).

19. [19]
    Exhibit 6 (page 7) is the photograph of the hole taken from the inside. The description (see pp 86 and 87 statement of Reus) matches in with the description of the other holes.

20. [20]
    Exhibit 7, the CCTV footage, for count 6 shows there are yellow markings on the jacket and a t-shirt around the head.

Count 7

21. [21]
    Count 7 involves the Sarina Subway on 25 July 2011. Samantha Wright in her evidence confirms that the entry point appeared to be a hole in the roof. Alarm and phone cords were cut and money from the safe was missing. Yvonne Gaskell a scenes of crime officer states that a cream coloured jacket and shifting spanner were found between two compressors on the roof. Trace DNA tape lifts were taken from these. Alan McNiven, a DNA scientist says that Mr Mason’s DNA was in the handle of the shifter and on the cream zip up jacket.

22. [22]
    Exhibit 6 (page 8) shows a very similar roof hole.

23. [23]
    Exhibit 7, the CCTV footage, for count 7 shows the offender with a torch in his mouth acting calmly in a similar manner to the other footage, there are gloves on. There is something around his head and there is a cream jacket which was later found on the rooftop.

Officer Millard

24. [24]
    Officer Millard is the investigating police officer for these charges. He has observed the CCTV footage (Exhibit 7) for the counts where it exists.

25. [25]
    For count 2 he says it is poor footage but it does show the offender with the hood down.

26. [26]
    For count 3 he says that the jacket worn by the offender was a similar jacket to other offences, a hammer was used on a safe and the offender used a small torch in his mouth.

27. [27]
    For count 4 there was a good view of the offender’s face, a shirt was wrapped around the offender’s head and a torch was used in his mouth.

28. [28]
    On count 5 there were yellow flashes seen on the jacket. He was in company and a small torch was seen in his mouth.

29. [29]
    On count 6 the offender was attempting to break into the safe. There was a similar jacket with yellow markings.

30. [30]
    On count 7 the offender broke into a safe with a torch in his mouth.

31. [31]
    I note that objection has been taken to some of his evidence. I have independently checked that which he has stated and rely on my own conclusions.

32. [32]
    I have also had regard to Exhibit 4, the photograph of Mr Mason. A jury is entitled to conclude in my opinion that the photograph is similar to the person seen on count 4.

33. [33]
    I have had regard to Exhibit 5, the still photographs. Importantly Exhibit 6 is a key exhibit. It shows that the holes for counts 2, 4, 5, 6 and 7 are remarkably similar.

34. [34]
    Exhibit 7 is the CCTV footage which I have watched carefully. I agree with the Crown contention that certainly for counts 2, 4, 5, 6 and 7 the person is of similar of build and height.

Principles

35. [35]
    Ordinarily only one count may be charged in an indictment (s 567(1) of the Code). However charges for more than one indictable offence may be joined if, inter alia, they form part of a series of offences of the same or similar character.

36. [36]
    In R v Cogley [1999] VSCA 123 at [24], it was held that in order for a number of offences to be a series of offences of a similar character, there needs to be some nexus between the offences i.e. elements of similarity which in all the circumstances of the case enables the offences to be described as a series.

37. [37]
    In R v Cranston [1988] 1 Qd. R. 159 a similar test was applied. It was held that where there was a significant level of prejudice, then there should be a liberal exercise of the discretion to sever contained in s 597A of the Code.

38. [38]
    One issue which is also raised in this case is whether the evidence of each count is admissible on the other counts. In Pfennig v R (1995) 182 CLR 461 it was said that propensity evidence which merely shows that an accused person has a bad disposition has no other relevance and should not be received into evidence. Such evidence will be admissible where its probative value in connection with the offence charged is sufficiently high. To be admitted into evidence, the evidence of propensity must have a specific connection with the commission of the offence charged, a connection which may arise from the fact that the evidence gives significant cogency to the prosecution case or some aspects of it. The evidence will only be admissible if, when taken with the other evidence, there is no reasonable view of the evidence which is consistent with the innocence of the accused.

39. [39]
    In Phillips v R (2006) 225 CLR 303, the court at [54] noted:

“The ‘admission of similar fact evidence ... is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’”

40. [40]
    It was further held at [56] that the similarities relied on were not merely striking, they were entirely unremarkable. It was noted at [58]:

“There was no dispute about the absence of striking similarity, unusual features, underlying unity, system, pattern or signature. Although none of these features is necessary for admissibility, the high probative value required in order to overcome the prejudicial effect of the evidence was not shown to exist for any other reason. …”

41. [41]
    The above principles were applied in R v MAP [2006] QCA 220. It was noted at [43] that usually, to achieve the strong degree of probative force the facts need to be strikingly similar. Further, in R v R [1997] QCA 277, it was held that “striking similarity” was one way in which the propensity evidence might achieve sufficient probative value.

The submissions

42. [42]
    The Crown submission is that the evidence of each of the counts is admissible on the others. It submits there are sufficient similarities between all of the counts such that there is a series of offences of the same or similar character.

43. [43]
    The Crown submits that the following similarities lead to a conclusion of joinder:

1. (a)
   All were committed late on Sunday night/early Monday morning.

2. (b)
   All were committed on commercial premises.

3. (c)
   All were committed in Central Queensland (Rockhampton and Mackay areas).

4. (d)
   All targeted containers of cash.

5. (e)
   All involved significant planning including interference with communications and alarms (six of them).

6. (f)
   Six involved interference with communications and alarms.

7. (g)
   Five involved a roof entry by cutting a tin roof.

8. (h)
   Four involved the use of the torch held in the mouth (counts 1, 3, 4 and 5).

1. (i)
   Four involved the use of a heavy tool (jemmy bar in counts 1 and 3 and sledge hammer in counts 2, 3 and 5).

10. (j)
    Three involved a jacket with an irregular seam around the hood and yellow markings (counts 3, 5 and 6). While the jacket worn in count 2 may be the same jacket although the features were not discernible in the CCTV.

11. (k)
    Three involved the use of tin snips.

44. [44]
    The defence on the other hand submits that these are “garden variety” break and enters. It submits there is no “hallmark” such as to render the counts as part of a series of offences of the same or similar character.

45. [45]
    Further, it is submitted the evidence on each count is not admissible on the trial of the other counts. Further the defence submits there is evidence of a break and enter at Berserker (Exhibit 9) not committed by the defendant which shows there is a reasonable possibility that the defendant did not commit all of the counts on the indictment. In addition he has also not been charged with a number of other break and enters (Exhibit 11) which further proves this point.

46. [46]
    The defence submits that while there appears to be a relaxation of the requirement of “striking similarity” it still remains the position that to be admissible there must be a strong degree of probative force for the similar fact evidence to be admissible and only where the probative force overrides and outweighs the prejudice or effect of the evidence. It is submitted that in the instant case there are number of points of dissimilarity.

47. [47]
    It is submitted that count 1 is completely different to the remaining counts, the mode of entry is different and it was substantially removed in time. In counts 2 and 3 apart from the closeness in time there are dissimilarities.

48. [48]
    It is noted that a satchel was used by the offender in counts 4 and 7 but it cannot be alleged the same bag was used. A co-offender was alleged to have been involved in count 5 although not in any other counts.

49. [49]
    In count 7 the jacket bears no resemblance to clothing worn in other offence locations and there was no attempt to cut Telstra pit wires.

50. [50]
    The defence in further written submissions (Exhibit 13) submitted:

1. (a)
   Any suggestion Mr. Mason committed other uncharged offences should be disregarded.

2. (b)
   There is nothing so unique about the method of entry and manner which identifies Mr. Mason as the offender.

3. (c)
   Counts 2 and 3 cannot have been committed by the same person. This shows there is another offender.

51. [51]
    There is also an objection to opinion evidence by Officer Millard. This has been conceded by the Crown and does not require any ruling.

52. [52]
    In reply the Crown says there is no “rolled gold” alibi on the other uncharged offences (Exhibit 11). It further submits the Berserker offence is different in nature and in fact he may have committed some of the other break and enters.^[1] I note it would appear on the banking records (Exhibit 3) Mr. Mason has a possible alibi for this offence (see later discussion.)

Discussion

53. [53]
    I have paid close attention to the video evidence (Exhibit 7), the photos of the entry points (Exhibit 6) and the still photographs (Exhibit 5).

54. [54]
    It is my view that counts 1 and 3 are not joinable. Count 1 occurred in 2009, so it is remote in terms of time. Count 1 involved the North Mackay Bowls Club, a different target to many of the other counts. In addition the entry point was different. In my view it is not sufficiently similar to permit it to be joined. I note there was no interference with the alarm or phone system.

55. [55]
    Count 3 occurred during a similar timeframe to Counts 2 to 7. However the entry point is different, and it is Super A Mart – a different target. The offender was also on the premises for a long time and the count is one of attempt. I note the offender may have had a grey jacket with yellow flashes and lines were cut in the Telstra pit. But in the end I apply a liberal exercise of the 597A discretion as is required by the authorities.

56. [56]
    Counts 1 and 3 are severed for these reasons or alternatively are severed in the exercise of my discretion which is set out in s 597A of the Code.

57. [57]
    I now turn to counts 2, 4, 5, 6 and 7. It is my respectful opinion there are many similarities between these counts, such that the evidence on each is strongly probative on the question of identity of the offender.

58. [58]
    The first similarity is that the targets are similar. Counts 2, 6 and 7 relate to Subway Restaurants. Counts 4 and 5 relate to car wash premises. They are businesses where money might be expected to be located at the time of the offences. Also they happen to be in the Mackay/Sarina area and Rockhampton some hours driving apart. Bank records for the defendant in July 2011 show that he was in the relevant areas at the time of the commission of the July 2011 offences.

59. [59]
    Secondly, the time frame is close in point of time. Count 2 occurred on 19 June 2011, Count 3, 19 June 2011, Count 4, 25 June 2011, Count 5, 11 July 2011 and Count 6, 25 July 2011.

60. [60]
    Thirdly, a key point is the similarity and the method of entry. At each of the offences a rectangular hole on three sides was cut by an item such as tinsnips. The holes on each are to my mind strikingly similar. One merely needs to refer to the photographs in this regard (Exhibit 6) and the description concerning count 6.

61. [61]
    Fourthly, a perusal of the video shows the offender as calmly and carefully committing the offences. The offender is clearly an agile person. I consider the video evidence shows a similarity of the approach and appearance of the offender in each of the offences.

62. [62]
    Fifthly, the clothing of the offender is similar in each. In particular some sort of black cloth appears to be wrapped around the offender’s head. I note the cream jacket may be a different one to the grey hoodie with yellow flashes.

63. [63]
    Sixthly, on all of the counts there was interference with communications or alarms; two with cutting wires in a nearby Telstra pit (counts 4 and 5) and four with cutting internal wires (counts 2, 4, 6 and 7).

64. [64]
    Seventhly, on count 4 the mask is pulled down and the offender looks similar to the defendant. Further the defendant’s DNA was found on a jacket found at the scene for count 7.

65. [65]
    Eighthly the targets appeared to be money containers/safes.

66. [66]
    Finally the offences all occurred on Sunday evenings/Monday mornings.

67. [67]
    The defence argues that a professional burglar might cut holes like those in the counts. But it is the combination of the other features and the unique nature of the holes which provide sufficient similarity which enables one to reach the conclusion there is no reasonable view consistent with innocence.

68. [68]
    I have considered the material of the offending not charged. Exhibit 9 relates to a chemist shop at Berserker. The offender here entered the premises by an air conditioning vent and stole tablets containing pseudoephedrine. I consider this is dissimilar.

69. [69]
    As to Exhibit 11 the defendant may have committed some of these offences. The mere fact he is not charged does not prove any point.

70. [70]
    My analysis of Exhibit 11 is such that it cannot be concluded that another person is responsible for any of these offences (with the exception of BP Regent’s Park) and in fact the offender may well have been the defendant.

71. [71]
    The first offence is from 8 September 2008 at the Hogs Breath Café, Rockhampton. There was forced entry through the roof, the offender carried a torch, black clothing was pulled over the offender’s face, there was damage to the security sign and gloves were worn. This could be Mr Mason. Indeed the crown submits it looks like him.

72. [72]
    On 18 September 2008 an offence occurred at the Beenleigh Carwash. The entry point was a hole in the roof, there was an attempt to enter the safe and the phone line was cut. Again this could be Mr Mason.

73. [73]
    On 20 November 2008 at Carwash Solutions, Waterford West there was an entry through the roof and an attempt to open the safe. This could be Mr Mason.

74. [74]
    On 19 January 2009 there was an offence at the Oasis Carwash, Browns Plains. There was a hole in the roof and underground cables were cut. This could be Mr Mason.

75. [75]
    On 28 January 2009 there was an offence at BP car wash, Regents Park. There was entry through the roof. I note there is no suggestion of interference with the phone or alarm system. The crown conceded the photos of the offenders do not show Mr. Mason. I note the offenders wore caps.

76. [76]
    On 31 March 2009 there was an offence at the Burleigh Carwash. The point of entry was through the roof and telephone wires were cut. This could be Mr Mason.

77. [77]
    On 3 April 2009 there was an offence at the Nerang Carwash. The entry point was through the roof. A sledgehammer was used and a metal container. Mr Mason’s wallet was found at the scene. The occurrence sheet suggests that he made full admissions to this offence. There were phone lines cut in the Telstra pit outside. Apparently this charge was dismissed at committal. It seems clear that Mr Mason may well have committed that offence.

78. [78]
    On 13 August 2011 an offence occurred at Subway, Yeronga. The entry point was through the roof. A safe door was removed and wiring damaged – an alarm box was smashed. I note that Mr Mason was in the Brisbane area at that time (see Exhibit 3).

79. [79]
    On 15 August 2011 an offence occurred at the Subway Carindale. This involved smashing a bottom glass panel and then a safe. There was no entry through the roof for this one. I note from Exhibit 3 that Mr Mason was in the Inala and Stones Corner area at or about that time.

80. [80]
    On 14 August 2011 an offence occurred at the Subway, Coorparoo. This did involve entry through the roof. An alarm was tampered with and a floor safe was unlocked. Mr Mason may have committed that offence.

81. [81]
    There are no bank records for 14 August 2011 although he was in Inala on the 15 August 2011.

82. [82]
    The next occurrence sheet relates to the AFS Dispensary (Exhibit 9). I have already discussed this. Indeed Mr Mason may not have committed this offence because on 12 August 2011 he was in New South Wales and on 15 August 2011 he was in Inala (see bank records Exhibit 3).

83. [83]
    He also denied committing the offence to investigating police.

84. [84]
    On 21 August 2011 to 22 August 2011 a Subway in Mackay was broken into. The entry point was in the roof. The power was cut off to the alarm and there was an attempt to access the safe. I note that from the banking records Mr Mason was in Gracemere on 18 August 2011, there was a withdrawal at Inala on 22 August 2011 but this might be by cheque (no. 654). There was also a debit card purchase through Flight Centre, Brisbane although it is not clear how this was conducted but further there was an EFTPOS withdrawal in Marlborough on 19 August 2011, an EFTPOS withdrawal from Mackay on 20 August 2011 and a withdrawal from a HandyBank in Mackay North on 21 August 2011.

85. [85]
    The Crown in further submissions (Exhibit 12) has submitted that the investigating police officer has made all reasonable efforts to find similar offences. It is further submitted that the offence at BP Regent’s Park, Gold Coast includes CCTV still images in which neither of the offenders appear to be Mr Mason but the Crown submits that this offence does not take away from the probative force of the other offences as it was committed in January 2009 two and a half years before counts 2, 4, 5, 6 and 7; it was committed in a different geographical location; the target was not a Subway or Carwash HQ; the offenders were wearing caps as opposed to makeshift balaclavas and the suspect 2 appears to be wearing cloth gloves.

86. [86]
    The Crown submits that nine of the offences involve a similar roof entry for counts 2, 4, 5, 6 and 7 and particularly rely on the burglary at the True Blue Carwash, Gold Coast where Mr Mason’s wallet was located. Apparently appropriate warnings were not given to Mr Mason before his interview such that the interview is not admissible. Further still images obtained from the CCTV footage for the Hogs Breath Café showed parts of the offender’s face which resembles Mr Mason.

87. [87]
    I accept the Crown’s submissions made concerning Exhibit 11. To my mind there is nothing cogent in the material contained in Exhibit 11 which takes away from the similarities to which I have referred above. In particular the offence at BP Regent’s Park in 2009 was far removed in point of time from the 2011 offences in Rockhampton and Mackay, wires were not cut and the offenders wore baseball caps.

88. [88]
    The defence has submitted the offender in count 3 is definitely not the same as the offender in count 2. I do not consider this proposition to be clear. The crown case is that count 2 occurred at about 0100 hrs on 20 June 2011 and count 3 between about 8pm and 11pm (see discussion at T1-18-20). Also see the timing of the cameras. Also it is possible the clothing worn by the offender in count 2 is the same as that worn in count 3.

89. [89]
    The fact is there is not one remarkably similar offence with a different offender – a factor which might change the landscape of this decision.

Conclusion

90. [90]
    In reaching my decision, I have had regard to the submissions made by the parties, the evidence tendered and the relevant principles which I have set out above.

91. [91]
    In conclusion I exercise my discretion to sever Counts 1 and 3. I rule that Counts 2, 4, 5, 6 and 7 are properly joined under s 567 (1) of the Code. I decline to exercise the discretion contained in s 597A of the Code as I consider the evidence on each count is admissible on the other and any prejudice is outweighed by the probative value of the evidence on the question of identity. In my view the evidence of each count meets the test expressed in Pfennig.