R v Hudson[2014] QDCPR 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant is charged with armed robbery in company. There are applications by the Crown and the defence for rulings regarding the admissibility of evidence pursuant to s 590AA Criminal Code. Neither party filed an application in compliance with rule 42 Criminal Practice Rules 1999. The Crown’s application seeks a ruling that evidence of two armed robbery offences committed by the defendant in 1997 to which he pleaded guilty in the District Court at Rockhampton on 27 April 2008 and in respect of which he was sentenced in the District Court at Gladstone on 30 April 2008, is admissible as similar fact evidence.

2. [2]
   The defence application seeks a ruling that the statement of a witness Tracey Cornford, who has since died, should not be admitted on the basis that it would be unfair to the defendant. The statement was tendered at the defendant’s committal hearing in the Magistrates Court at Rockhampton on 15 November 2013. The statement may be read as evidence of the defendant’s trial if the requirements in section 110A(13) Justices Act 1886 are satisfied.

3. [3]
   The circumstances of the present offence are that it is alleged that the defendant robbed a newsagent at Frenchville at about 5 am on 2 October 2012. The offender was armed with a gun and was wearing a beanie. It is alleged that James Pattenden was a lookout. It is alleged that Tracey Cornford drove the vehicle. The circumstances of the 1997 robberies are summarised in the Crown’s outline.

4. [4]
   Ms Bain, for the defendant, initially submitted that if the evidence of the 1997 robberies was admissible, the Crown would be required to lead evidence from the victims or other witnesses to establish the defendant’s identity. I doubt that it would be necessary for the victims to be called as witnesses. As I have mentioned, the defendant pleaded guilty to the 1997 robberies. In R v Delgado-Guerra,^[1] the Court of Appeal held that evidence of submissions made in criminal proceedings by counsel for an accused person in his presence was admissible in a subsequent proceeding on the basis that they were statements against interest made by a duly authorised agent. The transcript of proceedings would be admissible pursuant to s 10 Recording of Evidence Act 1962.

5. [5]
   The first robbery in 1997 occurred on 28 October. The offence occurred at the Capricornia Credit Union. It was alleged that the defendant stole a car in Rockhampton and drove around town looking for a bank to rob. At about 1.50 pm, he left the car out the front of the Credit Union with the motor running. He carried a dark-coloured replica or toy handgun and put a stocking on his head. He went into the Credit Union and screamed at those present to get on the ground. He pointed the weapon at staff and ordered that shopping bags be filled with money. He had brought the shopping bags for that purpose. He threatened violence to a middle-aged female staff member. The motive for that robbery was apparently the defendant’s amphetamine dependency. There was approximately $6000 stolen.

6. [6]
   The second robbery in 1997 occurred on 5 November. It was committed at the ANZ Bank. The facts summarised by Mr Phillips who appeared for the Crown, in his written submissions state that, after the robbery on 28 October 1997, the defendant returned to Sydney, and, then, stole another vehicle to commit a robbery offence at a TAB agency in New South Wales. He then drove to Rockhampton, along with others, and arrived on 4 November 1997. At about 11.30 am on 5 November 1997, the defendant and another man entered an ANZ branch in Rockhampton. Stockings were worn. The defendant was armed with another replica pistol; the other man was armed with a tomahawk.

7. [7]
   The customers who were present were ordered to the floor. The other offender made threatening gestures. The defendant passed shopping bags to the tellers so that they could be filled with cash. Female middle-aged staff members were threatened with violence. After the robbery, the defendant and the co-offender went to the getaway car. An off-duty police officer pursued them and led on-duty police to their location. This led to the car being intercepted. The defendant was lying on the floor of the car, and he had about $7000 in his pants. Again, the motivation for that robbery appeared to be drug-related.

8. [8]
   Propensity evidence is admissible if, when considered with the other prosecution evidence, there is no reasonable view of it consistent with the defendant’s innocence.^[2] The evidence is not to be viewed in isolation; it must be viewed in the context of the prosecution case.^[3]

9. [9]
   In BBH v The Queen, Crennan and Kiefel JJ explained that:

“The test in Pfennig was intended as a rule of general application to avoid the danger of causing unfair prejudice to an accused in the case of similar fact or propensity evidence.”^[4]

10. [10]
    In Phillips v The Queen, the High Court said:

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”. The criterion of admissibility for similar fact evidence is “the strength of its probative force”. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”. Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”. As explained in Pfennig v The Queen:

“[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”^[5]

11. [11]
    The Crown argued that striking similarities are not necessary for the admissibility of similar fact evidence, but nevertheless pointed to similarities in the three robberies. It was submitted that in each of the three cases, a business was robbed, a middle aged female staff member was the subject of threats, a gun was used and that each robbery was successful in that the offender exited the premises with a sum of money and that in each case, getaway was facilitated by means of a vehicle. It was also submitted that in each case, a face covering was used and that none of the robberies occurred at night-time.

12. [12]
    While, of course, striking similarities are not necessary to justify the admission of similar fact evidence, the evidence must have a strong degree of probative force to justify admission. In Pfennig, Mason CJ, Deane and Dawson JJ said that:

“Striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics.”^[6]

13. [13]
    In my view, the evidence of the 1997 robberies does not have the requisite strong degree of probative force to justify admission. A number of the factors relied upon by the Prosecution as justifying the admission of the events are common factors present in many robberies. The fact that a female staff member was the subject of a threat of violence in each instance is really quite an incidental factor.

14. [14]
    I therefore rule that the evidence of the robberies on 28 October 1997 and 5 November 1997 is not admissible.

15. [15]
    In relation to the statement of Tracey Cornford, which was tendered at the defendant’s committal hearing, I was asked to determine the admissibility of that evidence on the assumption that the formal requirements in section 110A(13) of the Justices Act 1886 were satisfied. The statement of Tracey Cornford, implicating the defendant is dated 7 February 2013. On the previous day, 6 February 2013, she was interviewed by police at the Townsville police station. Ms Bain, for the defendant, submits that Ms Cornford was evasive in that interview. She submits that it would be unfair to the defendant to admit the evidence contained in the statement because she is an accomplice with a possible motive to lie and she will not be able to be cross-examined.

16. [16]
    As I have mentioned, it is conceded that the formal requirements in section 110A(13) have been satisfied. It is common ground that Tracey Cornford has died.

17. [17]
    In R v Schuurs & Semyraha,^[7] Fryberg J was asked to consider the admissibility of the statements and depositions of a witness who had died on the basis that the conditions in section 110A and section 111 were satisfied. His Honour said this:

“The effect of those admissions is that the evidence of Mr Schuurs, contained in the statements and deposition “may … be read as evidence on the trial.” Neither of the defendants argued that the statute conferred any discretion on the court. They were correct not to do so. S 111 can be traced back through s 65 of the Evidence and Discovery Act 1867 to s 17 of the Indictable Offences Act 1848 (Eng). However, even before that section was enacted, it seems that depositions were admissible under the common law in circumstances similar to those described in the section. It is, I think, unlikely that the statute was intended to turn evidence which was admissible as of right into evidence admissible only at the discretion of the trial judge. It seems more likely that the word “may” was used because the parties were permitted (not compelled) by the section to lead evidence in the circumstances set out. That is the view which has been adopted by the Courts of Appeal of Ontario and British Columbia and by the Court of Criminal Appeal of New South Wales. If R v Dunnett and R v Wilton are properly to be understood as decisions to the contrary, then they were, with respect, wrongly decided, and should not be followed. Where evidence is given under the section, the jury should be cautioned in appropriate terms.

On the other hand, the Crown conceded that nothing in the terms of the section displaced any discretion otherwise exercisable to exclude the evidence, and on the authorities, that concession too was rightly made. I observe in passing that the evidence is also subject to any proper objections which may be taken to it. As Street CJ observed, there is no provision that the deposition “shall be admissible in evidence.” It will therefore be necessary before the trial to determine whether there are any parts of the evidence which are objected to.”^[8]

18. [18]
    The decision of Fryberg J in that case was not the subject of an appeal. The defendant Schuurs was convicted of manslaughter and appealed against the sentence.^[9] The defendant Semyraha was convicted of murder. He appealed against that conviction, however the ruling of Fryberg J admitting the evidence contained in the statements and depositions of the witness was not challenged on appeal.^[10]

19. [19]
    The fact that a witness cannot be cross-examined is not of itself a reason for excluding the evidence.^[11]

20. [20]
    Section 130 of the Evidence Act 1977 states that:

“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

21. [21]
    In R v Swaffield, Toohey, Gaudron and Gummow JJ said:

“While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone.”^[12]

22. [22]
    Mr Phillips, for the Crown, has agreed that if the evidence contained in the statement is admitted, the Crown will tender the interview with Ms Cornford on 6 February 2013 so that the jury will have an understanding of the context in which the statement was ultimately made.

23. [23]
    Ms Bain submitted that it was relevant to take into account that there is other evidence implicating the defendant, that is, the evidence of the co-offender, James Pattenden. However, in my view, that is not a relevant consideration.

24. [24]
    The statement of Ms Cornford is quite detailed. There is nothing in the statement itself that provides any basis for suggesting that it is unreliable. The fact that there are contradictory statements in the police interview on 6 February 2013 will be before the jury if the evidence and the statement is admitted.

25. [25]
    As I have said, it is accepted that the requirements in s 110A(13) at Justices Act 1886 are satisfied. In my view, it would not be unfair to the defendant for the evidence in the statement of Tracey Cornford to be read to the jury. The fact that the credit of a witness who cannot be called at the trial is in issue is not a reason for rejecting the evidence.^[13]

26. [26]
    In all of the circumstances, I am of the view that the evidence is admissible and should not be rejected in the exercise of discretion. I therefore rule that the statement of Tracey Cornford, dated 7 February 2013, tendered at the defendant’s committal hearing on 15 November 2013, may be read as evidence at the defendant’s trial.