Sampson v R

1. [1]

   BEECH-JONES CJ at CL: Following a trial before Her Honour Judge Girdham SC sitting without a jury the applicant was convicted of one count of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) and one count firing a firearm at a building other than a dwelling with reckless disregard for the safety of any person contrary to s 93GA(1) of the Crimes Act 1900. The applicant seeks leave to appeal his conviction on both counts. For the reasons given by Weinstein J, I would also grant leave to appeal but dismiss the appeal against his convictions. In relation to ground 2, having reviewed the record of the trial, I am satisfied there is not “a significant possibility that an innocent person has been convicted” (M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494)

2. [2]

   The applicant also seeks leave to appeal against his sentence (Criminal Appeal Act 1912 (NSW), s 5(1)(c)). The sole ground of appeal is that the sentencing judge failed to advert to the fact that sentence imposed on the applicant would result in him serving more than 75% of his effective head sentence before being eligible for release on parole.

3. [3]

   Given the confined nature of the complaint on appeal, it can be dealt with relatively briefly. On 3 December 2022, her Honour sentenced the applicant to an aggregate term of imprisonment for 7 years with a non-parole period of 3 years and 6 months. The sentence was fixed to commence on 11 September 2023. Subject to intervention by this Court, he will be first eligible for release on parole on 11 March 2027 and the overall sentence will expire on 11 September 2030. The ratio of the non-parole period to the aggregate sentence imposed by her Honour is 50%.

4. [4]

   The applicant’s prolonged criminal record complicated her Honour’s sentencing task. On 18 May 2005, the applicant was sentenced to imprisonment for 12 years with a non-parole period of 8 years commencing on 21 May 2003. Although he was eligible for release on parole on 20 May 2011, he was not released until 9 October 2012. The offences the subject of this application (and numerous other offences) were committed while he was released on parole. The applicant returned to custody on 1 May 2014 for breach of parole and served the balance of his sentence in custody until its expiration on 20 May 2015. On 21 September 2015, the applicant was sentenced to various terms of imprisonment, the earliest of which commenced on 13 September 2014. The earliest release date under those sentences was 12 December 2016. However, a number of other sentences, all relating to offences he committed during the period he was released on parole, operated to continue his time in custody. Thus, as at the date the applicant was sentenced for the offences the subject of this appeal, the applicant was serving various sentences, the latest of which expires on 10 March 2031. His earliest possible release date under those sentences is 11 March 2026. The effect of the sentence her Honour imposed was to extend the applicant’s earliest possible release date by one year until 11 March 2027.

5. [5]

   In the sentencing judgment, her Honour addressed the effect of these sentences on the applicant in detail and stated:

6. [6]

   Her Honour then summarised the effect of the sentences the applicant was serving, including the sentence imposed by Ellis SC DCJ referred to in the above passage. Her Honour noted that the sentence did not expire until 10 March 2031 and continued:

7. [7]

   Later in the sentencing judgment, her Honour noted that the sentence imposed reflected a finding of special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) and added, “[i]t is apparent why that would be so”. This is a reference to the express consideration of the effect of accumulation of the sentence the subject of this application on the applicant’s existing sentences.

8. [8]

   The applicant’s submissions pointed to the minimum period of time that the applicant will serve in continuous custody, being the period from 1 May 2014 to 10 March 2027 (i.e. 12 years, 10 months and 10 days) compared to the overall “effective sentence” which he contends is the period from 1 May 2014 to 10 March 2031 (being the expiry of his last sentence i.e. 16 years, 10 months and 10 days). The submissions note that the ratio of the two figures is 76.23% (or approximately 76.26% if one uses days as the numerator and denominator). The applicant contends that, as this ratio exceeds 75%, the outcome is not just and is indicative of error.

9. [9]

   The ratio of 75% between a non-parole period and aggregate sentence is the mathematical equivalent of the ratio of one third between the balance of a term of an aggregate sentence and the non-parole period referred to in s 44(2B) of the Sentencing Act. Subsection 44(2B) specifies that the balance of the term of an aggregate sentence “must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more”. Although the provision does not have any direct application to the effect of cumulated sentences, a number of decisions of this Court have held that, in certain circumstances, it is erroneous to impose a sentence that has a cumulative effect of requiring an offender to serve more than three-quarters of their total combined (or “effective”) sentence in custody (see, for example, Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; Lonsdale v R [2020] NSWCCA 267; “Lonsdale”; Harris v R [2023] NSWCCA 44).

10. [10]

    In Lonsdale at [65]−[66], N Adams J and I addressed the principles applicable to such a complaint as follows:

11. [11]

    The applicant’s submissions contended that the last passage of the above statement from Lonsdale is not applicable even though the relevant percentage in this case is 76.23%, whereas in Lonsdale, a difference between a ratio of 76.47% and 75% was considered “trivial”. The applicant contended that Lonsdale concerned an effective sentence of relatively short duration, being 4 years and 3 months, whereas in this case the difference in ratio corresponded to a period of 75 days. The applicant submitted that in the present circumstances of the applicant being in continuous custody since 1 May 2014, such a period could not be characterised as “trivial”.

12. [12]

    It is unnecessary to consider this further because it is the emphasised part of the above passage from Lonsdale that is critical to the outcome of this sentence appeal. Her Honour was very much aware of the effect of cumulating a new sentence onto the applicant’s existing sentences. Her Honour considered that topic at length. Her Honour tailored the sentence imposed to minimise the effect of doing so, but nevertheless determined that a further minimum period in custody of one year had to be served to reflect the applicant’s criminality which “effectively involved three civilians being exposed to an offence of armed robbery… during which a firearm was discharged” (see above at [5]). I am more than satisfied that the sentencing judge “considered or adverted to” the precise effect of cumulating the sentence her Honour imposed on the applicant’s existing sentences, namely, producing a ratio of the total non-parole period to the total combined sentence that slightly exceeded 75% (Lonsdale at [65]).

13. [13]

    I would reject the ground of appeal against sentence. I would grant leave to appeal against sentence but dismiss the appeal. I agree with the balance of the orders proposed by Weinstein J.

14. [14]

    CAMPBELL J: I have had the considerable advantage of reading the judgments of Beech-Jones CJ at CL and Weinstein J in draft. As Weinstein J considered the conviction appeal, it is logical for me to refer to his judgment first. I agree with his Honour’s reasons for the disposal of each ground of appeal and with the orders he proposes. I only wish to make some short observations of my own, which I do not conceive to be in any way inconsistent with what Weinstein J has written. What I have written assumes familiarity with the judgment of Weinstein J.

15. [15]

    I agree that RS’s evidence of Mr Sampson’s participation in the “Wangi conspiracy” of 21 October 2012 was admissible coincidence evidence under ss 98 and 101(2) Evidence Act 1995 (NSW). While there was some confusion in his oral evidence about which of two clubs at Wangi was the object of the proposed robbery the subject of the conspiracy, which may have been capable of raising a question about the reliability of his evidence, for admissibility purposes, taking his evidence at its highest, the permissible cross-examination by the Crown Prosecutor under s 38 Evidence Act based upon one of the induced statements made by RS and made much closer to the events than the judge alone trial clearly identified the Wangi RSL Club rather than the Wangi Workers’ Club, as Weinstein J points out. Moreover, to my mind, if accepted, the evidence that Mr Sampson was a leading participant in the aborted attempt to rob the Wangi RSL Club on 21 October 2012 around four weeks before two men robbed that club on 18 November 2012 was capable of being evaluated as powerful evidence, when considered with other admissible evidence, that Mr Sampson was one of the two armed robbers on that occasion.

16. [16]

    I agree with Weinstein J that the dissimilarities between the circumstances of the aborted Wangi conspiracy and the eventual robbery of the Wangi RSL Club do not undercut the improbability that both events occurred coincidentally. In my view the potential probative value of the evidence, having regard to the other evidence to be adduced at the trial, was relatively high. I am not satisfied that it was demonstrated that its admission had any unfair prejudicial effect on Mr Sampson within the meaning of s 101(2) Evidence Act. The only ill-effect from his point of view was its weight as evidence against him.

17. [17]

    Concerning the unreasonable verdict ground, I agree with Weinstein J that it was open to the learned trial judge to be satisfied beyond reasonable doubt that Mr Sampson was guilty of both counts on the indictment. To the extent to which there is a question mark over the reliability of the evidence of RS, I agree that her Honour approached the evaluation of that evidence with considerable care. To the extent to which the shortcomings in RS’s oral testimony, given over 11 years after the events in question, may have been capable of engendering doubt, I agree that the learned trial judge’s advantage in seeing and hearing him give evidence is capable of resolving that doubt.

18. [18]

    With respect, Weinstein J’s analysis accords with my own review of the evidence and arguments at trial. While I acknowledge, as Weinstein J has stated, that in a circumstantial case it is necessary to consider all of the circumstances established by evidence that the tribunal of fact regards as reliable as a whole, to determine whether the Crown have proved the guilt of the accused beyond reasonable doubt, there are two circumstances which stand out in my consideration of the evidence. The first is the coincidence evidence. Once one accepts that Mr Sampson was a principal participating in the aborted conspiracy to rob the Wangi RSL Club in October 2012, his unfulfilled ambition in that regard is significantly probative evidence that he was one of the participants in the successful armed robbery of 18 November 2012. Secondly, the circumstances of his purchase of the Holden Vectra on 19 November 2012 is strong evidence that he came into money overnight, given that he had told the vendor that he needed to organise finances before purchasing it earlier during the day of the robbery.

19. [19]

    I fully appreciate, as Weinstein J records, that Mr Sampson’s mother gave evidence that she put him in funds to buy the car from a lotto winning. The learned trial judge rejected Ms Sampson’s evidence that she was the source of the purchase price, although her Honour was prepared to accept that Ms Sampson may have given her son an equivalent sum some weeks previously. This was an assessment her Honour was well placed to make and her advantage as the trial judge in this regard cannot be called into question in the Court of Criminal Appeal.

20. [20]

    It may be that these two very salient circumstances without more would be insufficient to prove guilt beyond reasonable doubt. But taken in conjunction with all the other circumstances proved by the Crown I am not left in doubt about Mr Sampson’s guilt.

21. [21]

    I also agree with the reasons of Beech-Jones CJ at CL in relation to the disposition of the sentence appeal and I agree with the orders his Honour proposes in that regard. I agree with the balance of the orders proposed by Weinstein J.

22. [22]

    WEINSTEIN J: The appellant, Terry Sampson, seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 against his conviction in relation to one count of robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (‘the Crimes Act’) (‘count 1’) and one count of firing a firearm at a building other than a dwelling house contrary to s 93GA(1) of the Crimes Act (‘count 2’).

23. [23]

    Mr Sampson was found guilty and convicted of both counts after a trial by judge alone before Girdham SC DCJ (‘the trial judge’) in the District Court. The trial, during which Mr Sampson represented himself, took place at Newcastle from 12 May 2021 to 31 May 2021. Her Honour gave judgment on 11 June 2021. The appellant was sentenced by her Honour on 3 December 2021 to 7 years imprisonment, with a non-parole period of 3 years and 6 months to date from 1 September 2023 and expiring on 10 March 2027. The head sentence will expire on 10 September 2030.

24. [24]

    The appellant raises two grounds of appeal:

    1. (1)

       The evidence of an alleged conspiracy to commit an armed robbery at the Wangi RSL Club on 21 October 2012 (the Wangi conspiracy) was wrongly admitted as coincidence evidence and caused the trial to miscarry; and

    2. (2)

       The verdict of the trial judge is unreasonable, or cannot be supported, having regard to the evidence.

25. [25]

    The appellant filed a Notice of Intention to Appeal against his conviction on 14 December 2021, which was within time. However, he requires leave to appeal as his Notice of Appeal, filed on 10 February 2023, was not filed in time. At the hearing of the matter, the Crown did not wish to be heard on an extension of time, and I would grant him that leave. Leave to appeal is also required with respect to ground 2, as it concerns a question of mixed fact and law.

26. [26]

    For the reasons that follow, I would grant leave to appeal and dismiss the appeal.

The offending

1. [27]

   Both counts occurred as part of the same incident which was captured on CCTV. At about 11 pm on Sunday 18 November 2012, two men smashed through glass and entered the Wangi RSL Club on Watkins Road, Wangi. The shorter of the two men (who was alleged to be Mr Sampson) carried a .22 calibre rifle. Shots were discharged from that rifle which struck a television mounted on a wall near the bar (count 2). The men took $11,691 from an unlocked safe in the club office (count 1).

2. [28]

   The appellant was arrested on 9 February 2016. He participated in two interviews (on 3 February 2016 and 9 February 2016) and denied having participated in any offence at the Wangi RSL.

The issue at trial

1. [29]

   The issue at trial was whether the Crown could establish beyond reasonable doubt that Mr Sampson was one of the two men involved in the robbery.

2. [30]

   The Crown case was circumstantial, and relied on evidence including:

   1. (1)

      That at the time of the incident, the appellant lived nearby and could be placed in its general vicinity before and after the incident. The Crown case was that he was familiar with the Wangi RSL club;

   2. (2)

      A comparison of CCTV footage of the incident and the appellant, including consistency of height, build and age between the appellant and the shorter man depicted in the footage, and the presence of bandages below the left knee of the shorter man in two places where the appellant had tattoos;

   3. (3)

      Three days after the robbery, police executed a search warrant at a residence where the appellant resided from time to time, and located items of clothing, some of which were distinctive and identical in appearance to the clothing worn by the shorter of the two men during the robbery;

   4. (4)

      On the day of, but before the robbery, the appellant made representations to a vendor of a car that he did not have enough money to buy to purchase it. The next day he purchased the car with cash;

   5. (5)

      Evidence that a telephone number used by the appellant during the relevant period was used to contact the seller of the car the day after the robbery, and by the appellant on other dates to contact Community Corrections and to call a taxi. Earlier, police had obtained the telephone number of Mr Sampson’s co-offender, his cousin Raymond Wetherill. Mr Sampson’s phone records showed that he had communicated with Mr Wetherill on many occasions before and after the robbery on 18 November 2012, but they tapered off on 20 November 2012;

   6. (6)

      Admissions made by Mr Sampson to, and his close contact with, Mr Wetherill;

   7. (7)

      Admissions made by the appellant to a registered source RS in 2014;

   8. (8)

      Mr Sampson’s familiarity with firearms and his previous possession of firearms including a .22 rifle; and

   9. (9)

      Coincidence evidence.

Ground 1 – coincidence evidence

1. [31]

   The Crown served a Coincidence Notice (the Notice) pursuant to the Evidence Act 1995 (the Evidence Act) dated 27 April 2021. The Notice identified three separate events: a robbery of the Teralba Bowling Club on 16 March 2003, the Wangi conspiracy on 21 October 2012 and the robbery of Wangi RSL the subject of the charges before the trial judge and this court. Reliance on the robbery of the Teralba Bowling Club on 16 March 2003 was abandoned and the Crown relied only the Wangi conspiracy and the robbery the subject of the trial. Paragraph 3 of the Notice stated:-

2. [32]

   The Notice identified fifteen items of evidence on which the Crown relied. Fourteen were abandoned. What was left was a certificate of conviction dated 17 June 2017 for conspiracy to commit robbery armed with a dangerous weapon at the Wangi RSL. As Mr Sampson had been tried and convicted with respect to the Wangi conspiracy, there were no agreed facts or admissions. It was accepted that the Crown would have to establish the factual background for that conviction by calling evidence from witnesses. The critical witness was the registered source RS. The Crown submitted before her Honour that if RS’s evidence was accepted, the tribunal of fact would conclude that Mr Sampson was involved in the Wangi conspiracy.

3. [33]

   The Crown relied on the following similarities between the Wangi conspiracy and the Wangi RSL robbery:-

   1. (1)

      The target of the premises was the same club;

   2. (2)

      The incidents occurred within approximately 3 weeks of each other;

   3. (3)

      Both incidents occurred late at night;

   4. (4)

      The location of the club is on Lake Macquarie, which was relatively proximate to the address where Mr Sampson lived at the time;

   5. (5)

      On each occasion Mr Sampson had a firearm;

   6. (6)

      On each occasion the offenders wore dark clothing;

   7. (7)

      On each occasion Mr Sampson was in the company of at least one other person; and

   8. (8)

      The other person had access to a different weapon.

4. [34]

   The Crown acknowledged that there were different people involved in each incident. The Crown case was that Mr Wetherill played no role in and was not present at the Wangi conspiracy, but that he was involved in the Wangi RSL robbery with the appellant. The Crown alleged that Mr Sampson and RS (and two others being Mark Creighton and Mr Sampson’s brother Brad) were involved in the Wangi conspiracy. The Crown submitted before her Honour that because of the similarity of the facts and circumstances surrounding the two events, including other evidence in the Crown case, that it was improbable that Mr Sampson was not involved in each of them.

5. [35]

   After hearing the evidence of RS, which was foundational to the application to adduce the coincidence evidence, and which her Honour let in subject to relevance, she determined that she would allow the evidence to be adduced for coincidence purposes, i.e., because of the improbability of the two events occurring coincidentally (it being relevant for only that purpose). Reasons were given in her Honour’s judgment. Her Honour found that the evidence had significant probative value (s 98(1)(b) of the Evidence Act) and that the probative value of the evidence substantially outweighed any prejudicial effect it may have had on the defendant (s 101(2) of the Evidence Act).

6. [36]

   RS’s evidence was to the following effect. He was arrested [redacted] conspiracy. [redacted]. He was taken into custody immediately and was sentenced in the Local Court. He appealed against his sentence to the District Court and was still in custody at the time of the robbery.

7. [37]

   After his court matters were finalised, RS agreed to, and provided police with, eight induced statements: one of 20 February 2013, one of 22 October 2013, three of 8 September 2014, two of 18 September 2014 and one of 1 October 2014 (the induced statements). The inducement given to RS was that anything disclosed in those induced statements could not be used against him in any Court proceedings at any time unless he had lied or deliberately did not disclose anything that was relevant to the police investigation. RS agreed with the Crown Prosecutor that without that inducement he would not have made the induced statements. He agreed too that he was not given any discount on his sentence for making the induced statements, the benefit being that he would not be charged for his involvement in any of the criminal activity that he told police about in the induced statements.

8. [38]

   When RS gave evidence [redacted]. After taking an objection, RS gave his evidence with the benefit of a certificate pursuant to s 128 of the Evidence Act. RS gave evidence on two topics. The first was with respect to a meeting he had with the appellant [redacted], and the second was about events that led to his arrest [redacted].

9. [39]

   RS said that [redacted] with two detectives so that he could speak with Mr Sampson. He was advised that the conversation would be recorded. [redacted]. He spoke to Mr Sampson for about 2 hours. After the conversation, he debriefed with detectives in the police car and at the police station in Parramatta a few days later. He made two statements on 18 September 2014. It transpired that [redacted] virtually nothing of RS’s conversation with Mr Sampson was recorded. Her Honour put to one side any admissions RS claimed that the appellant had made to him about the robbery as she was not confident about their reliability in the absence of a recording.

10. [40]

    RS said that he talked to the appellant about Mark Creighton’s kids being out of control during the afternoon of 21 October 2012. He said that they had grabbed a cash register and took off down the street with it. I set out at length RS’s evidence as it is critical to both grounds of appeal. What follows is part of his evidence in chief:

11. [41]

    The Crown Prosecutor then made an application pursuant to s 38 of the Evidence Act to cross examine RS about his evidence that the venue of the conspiracy was the Wangi Workers club, it being inconsistent with his statement of 18 September 2014 when he said that the venue was the Wangi RSL club. Her Honour permitted the Crown to cross-examine on that discrete topic. The following cross-examination took place.

12. [42]

    Mr Sampson then cross-examined RS at length. He showed RS CCTV footage of three robberies at Wangi, played him recordings of telephone intercepts and took him to parts of his statements. The substance of the cross-examination was that there had not been a prior conspiracy to rob the Wangi RSL club and that RS and others had committed an offence at the Wangi Workers club on 3 September 2012. Relevant parts of that cross-examination are as follows.

13. [43]

    Mr Ramrakha, who appeared for the appellant, observed that although the appellant had been first arraigned on 2 March 2017, the Notice was not filed and served until 27 April 2021 which was well out of time. No further submissions addressed the issue, and to the extent necessary I would dispense with the notice requirements pursuant to s 100 of the Evidence Act.

14. [44]

    Mr Ramrakha submitted that it was important to focus carefully on the nature of the fact or facts in issue to which the evidence is relevant, and consider whether the evidence may have significance in establishing that fact or facts when determining whether or not the proposed evidence has significant probative value. Although a court should proceed on the basis that the evidence will be accepted, and should take the evidence at its highest, Mr Ramrakha submitted that one cannot do so without limit, and taking the evidence at its highest does not of itself give the evidence the requisite significance.

15. [45]

    Mr Ramrakha submitted that whilst the note to s 98(1) provides that one of the events for the purposes of s 98(1) may be an event the occurrence of which is a fact in issue in the proceeding, it is illogical to assume or reason that a person did a particular act that is the fact in issue sought to be proved in order to establish the requisite similarity, as such reasoning is circular. He relied on R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174 (‘Gale’) and in particular the judgment of Simpson J, as her Honour then was, when she said at [37]:

16. [46]

    Gale is distinguishable from the present case. In Gale, the Crown relied on evidence of a prison informer who said that he was told by both Gale and Duckworth that they had participated in a theft disguised to look like a robbery. In this case, the presence of Mr Sampson at the Wangi conspiracy was sought to be proved by the evidence of RS who made a positive identification of Mr Sampson as a co-participant. It does not assume any fact sought to be proved. It is evidence, if accepted, of that fact. Furthermore, in Gale her Honour observed at [30] that the factual underpinnings of a decision to admit or reject coincidence evidence are that there is evidence capable of establishing the occurrence of two or more events; and that there is evidence capable of establishing similarities in those events; or that there is evidence capable of establishing similarities in the circumstances in which they occurred; or similarities of both the events and the circumstances in which they occurred. Here the evidence was capable of satisfying those requirements.

17. [47]

    Mr Ramrakha submitted that the coincidence evidence did not have significant probative value, as RS’s evidence as to the location of the prior offence in Wangi was uncertain. Further he submitted, as between the two events, the similarities were few and were neither distinctive nor unusual, let alone striking. He submitted that the asserted similarities could have described the occurrence of any like offence. He said that the fact that the two events may have occurred at the same venue did not make the evidence significant, as the occurrence of two robberies on the same licenced premise is not a remarkable circumstance. Moreover, on the Crown case, the two events involved different participants, which he submitted undercut the improbability that the two events occurred coincidentally. He submitted that there was nothing unique or unusual about the two events or anything in the nature of the two events that was outside the realm of ordinary experience. Thus, in his submission, the evidence did not have significant probative value for the purposes of s 98(1) of the Evidence Act.

18. [48]

    Mr Ramrakha submitted that the probative value of the evidence did not substantially outweigh its prejudicial effect. He submitted that when comparing the Wangi conspiracy and the robbery, her Honour assumed the very fact that was to be established at trial, namely, that the accused was the person who was “armed with a long barrelled and loaded .22 in company with another male offender”. Further, as RS’s evidence as to the appellant’s involvement in the Wangi conspiracy was uncorroborated and not admitted by Mr Sampson, once it was adduced as coincidence evidence, it had the prejudicial effect of bolstering RS’s credibility. Thus, in Mr Ramrakha’s submission, the evidence ought to have been rejected pursuant to s 101(2) of the Evidence Act.

19. [49]

    Ms Bonner, who appeared for the Crown, submitted that the court would conclude that the evidence is admissible as coincidence evidence. The similarities were that the offences were committed at night, at the same licenced premises, in company, with one perpetrator in each being armed with a long barrelled firearm and another armed with a weapon (machete and a pole). Furthermore, the incidents occurred within approximately 3 weeks of one another, and on each occasion the shorter man had the firearm and the other man had the weapon. In the Crown’s submission, particularly taken in conjunction with the other evidence adduced by the Crown in its circumstantial case, the coincidence evidence had significant probative value. Further, she submitted that the probative value of the evidence substantially outweighed its prejudicial effect because the evidence that linked the appellant with the Wangi conspiracy could be used in inferential reasoning that it was not a coincidence that it was the appellant who returned on 18 November 2012 to commit the Wangi RSL robbery.

20. [50]

    As the appellant was arraigned on 2 March 2017, the Evidence Act in force at that time applies: Decision Restricted (2022) 407 ALR 125; [2022] NSWCCA 246 at [51] – [52]. The amendments to Div 3.6 of the Evidence Act, which took effect on 1 July 2020, do not apply to the present case.

21. [51]

    It is agreed between the parties, and is beyond doubt, that an appellate court must satisfy itself that evidence has been properly admitted, and that the correctness standard of appellate review as stated in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 is applicable: see R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61]; Greenaway v The Queen [2021] NSWCCA 253 at [19]-[20] per Macfarlan JA, Walton and Wilson JJ agreeing; Su v The Queen [2023] NSWCCA 21 at [30] per Meagher JA, Button and Wright agreeing.

22. [52]

    In the present case, a determination must be made about whether the coincidence evidence satisfies ss 98 and 101(2) of the Evidence Act.

23. [53]

    Section 98 of the Evidence Act provided:-

24. [54]

    Section 101(2) of the Evidence Act provided:

25. [55]

    Coincidence evidence, which is a species of circumstantial evidence, invites a tribunal of fact to engage in probabilistic reasoning that two or more events could not have occurred coincidentally. It gains its probative value when it suggests the objective improbability of an event occurring accidentally. In R v Zhang (2005) A Crim R 504; [2005] NSWCCA 437 at [141], Simpson J, as her Honour then was, said that “a determination under s 98 is essentially evaluative and predictive” and one on which “reasonable minds may differ”.

26. [56]

    It has been acknowledged that the similarity between tendency and coincidence evidence is “awkward” because of the generality of the modes of proof for both types of evidence and because both require establishing similarities in a course of conduct: see El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 (‘El-Haddad’) at [46] and Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [30]. Although both tendency and coincidence involve the drawing of inferences, coincidence reasoning focuses on the improbability of coincidence being the explanation for the similarities in the events or circumstances relied upon: Page v R [2015] VSCA 357 at [45]. Where there are dissimilarities, they are relevant only if they detract from the improbability of coincidence: El-Haddad; Selby v R [2017] NSWCCA 40.

27. [57]

    In Xie v R (2021) 386 ALR 371; [2021] NSWCCA 1 (‘Xie’), the Court (Bathurst CJ, RA Hulme and Beech-Jones JJ) summarised the general features of coincidence evidence and the task to be undertaken by an appellate court when determining the admissibility of such evidence pursuant to ss 98 and 101(2). Multiple authorities were addressed at [778] – [782]:

28. [58]

    As to the assessment of probative value of the evidence sought to be adduced required by s 97(1)(b) of the Evidence Act, and which by analogy applies to s 98(1)(b), the High Court in TL v The King (2022) 405 ALR 578; [2022] HCA 35 (‘TL’) surveyed recent authority dealing with s 97 of the Evidence Act. The Court (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) said at [28]:

29. [59]

    For coincidence evidence to be admissible, the Court must accept 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: s 98(1)(b) of the Evidence Act. The degree of similarity between the events will be relevant to the assessment of the probability that the events did not occur coincidentally. The question is whether any dissimilarities undercut the improbability of something being a coincidence Selby at [23] –[24].

30. [60]

    In IMM v R (2016) 257 CLR 300; [2016] HCA 14 (‘IMM’) at [46], French CJ, Kiefel, Bell and Keane JJ said:

31. [61]

    In Hughes v R (2017) 263 CLR 338; [2017] HCA 20 at [16] (‘Hughes’), Kiefel CJ, Bell, Keane and Edelman JJ, said of s 97(1)(b) that tendency evidence will have significant probative value if it “could rationally affect the assessment of the probability of the existence of a fact in dispute to a significant extent” and at [40] “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”.

32. [62]

    The credibility of the witness or the reliability of the evidence is not taken into account in assessing the extent of the evidence’s probative value for the purpose of either s 97 or s 98. Rather, for admissibility purposes, in the assessment of probative value, a court is to take the evidence at its highest: IMM at [44]. The admissibility of the coincidence evidence is determined by reference to its capacity to rationally affect the existence of a fact in issue: IMM at [38]. Here the fact in issue is the identity of Mr Sampson as the shorter man in the Wangi RSL robbery. Any evidence about that issue, if accepted, would be relevant and admissible in the proceedings: ss 55 and 56 of the Evidence Act.

33. [63]

    At its highest, RS’s evidence put Mr Sampson outside the Wangi RSL club, at night and in company with another who bore a different weapon, approximately three weeks before the robbery, armed with a shotgun, in a conspiracy to rob the Wangi RSL club. That evidence, together with the other evidence relied upon by the Crown, was capable of establishing the occurrence of two events, which were similar in material respects, the circumstances in which the events occurred. There were dissimilarities as well. In particular, on RS’s evidence there were four participants in the Wangi conspiracy. On the Crown case, the robbery involved only two participants. Only one participant is said to be common to the Wangi conspiracy and the Wangi robbery. In my opinion, the dissimilarities do not “undercut” the improbability of the events having occurred coincidentally.

34. [64]

    Taken together with the other circumstantial evidence adduced by the Crown, in my view the coincidence evidence had significant probative value. It made more likely, to a significant extent, the central fact in issue in these proceedings that Mr Sampson was the shorter man in the Wangi RSL club robbery depicted on the CCTV footage.

35. [65]

    Further to what the Court in Xie said at [782] (see above) about the test in s 101(2), Simpson AJA recently said the following in Burns-Dederer v R [2023] NSWCCA 191 at [55] –[57], a case concerning tendency evidence and the test in s 101(2) as it stood prior to amendment:

36. [66]

    Here, Mr Ramrakha essentially submitted that there was a danger of unfair prejudice which was not outweighed by the probative value of the evidence because there was a risk that the trial judge would give disproportionate weight to the coincidence evidence. I reject that argument. Taking the evidence at its highest, and accepting that its probative value was significant, it substantially outweighed any prejudicial effect it may have had on the appellant. This was a judge alone trial, and there was no danger of its misuse by a jury. Furthermore, her Honour warned herself about the evidence of RS pursuant to s 165 of the Evidence Act, as it was of a kind that may be unreliable. Clearly it was evidence that was prejudicial to the defendant, as it advanced the Crown case.

37. [67]

    Balancing the two competing considerations in s 101(2), I am satisfied that the probative value of the coincidence evidence substantially outweighs any prejudicial effect it may have had on the defendant.

38. [68]

    It follows that in my opinion, the coincidence evidence was properly admitted. I would dismiss ground 1. The weight that could be made of the coincidence evidence is dealt with below.

Ground 2 – unreasonable verdict

1. [69]

   The principles that apply to a ground of appeal that a verdict was unreasonable or cannot be supported by the evidence are well known. The leading authority is M v The Queen (1994) 181 CLR 487; [1994] HCA 63, and it has been affirmed and applied by the High Court in cases such as Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (‘Filippou’); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 and Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 (‘Dansie’). In the context of a trial by judge alone, Dansie and Filippou are of most relevance. In Slattery v R [2023] NSWCCA 117 (‘Slattery'), Bell CJ, with whom Ward P and Wilson J agreed, conveniently distilled the principles from those two cases at [113]:

2. [70]

   In Slattery, the Chief Justice said at [119] that “[t]he starting point is to acknowledge the significant advantage enjoyed by the trial judge.” The Court should give weight to the ability of the trier of fact to make assessments in the context of a trial where evidence is adduced orally, as opposed to merely reading the record: see Jaghbir v R [2023] NSWCCA 175 at [136] per Button J citing The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].

3. [71]

   Here, the Crown case relied upon circumstantial evidence of the kind described by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56 (‘Shepherd’) as ‘strands in a cable’. This required guilt to be proved by inference, having regard to the whole of the evidence.

4. [72]

   The accused did not give evidence at trial. He relied on two ERISPs in which he denied being involved in the robbery. Thus, the only issue in dispute was whether or not the Crown could prove beyond reasonable doubt that Mr Sampson was the shorter of the two offenders in the robbery.

5. [73]

   The following was not in dispute at trial. An armed robbery took place at the Wangi RSL Club on 18 November 2012 and a firearm had been discharged during the course of the robbery. The offences were captured on CCTV from within the club. Forensic evidence in the form of spent .22 cartridges were recovered from the scene. The Wangi RSL Club was located at 275 Watkins Road on Lake Macquarie. The main entry point to the club was described as being on the water side. The club had a car park fronting onto Watkins Rd and was connected by a walkway.

6. [74]

   The shorter of the two men who robbed the club was holding a rifle. He was wearing a dark jacket over a light red or maroon coloured hooded jumper with the hood over his head. He had a white bandage or cloth wrapped around his face, exposing only his eyes. He was also wearing a pair of dark grey or black Russell branded shorts, white ankle socks and black and white sneakers with red writing. He also had a white bandage or cloth wrapped around the upper calf area of the left leg and a small white bandage or cloth around the area of his left ankle. The taller of the two men was holding a white pole. He was wearing a black jumper or jacket, dark long pants, dark shoes and had a red shirt wrapped around his head exposing only his eyes.

7. [75]

   The offenders entered the club at about 11:13 pm shortly after closing by smashing through a set of glass doors at the rear of the premises. Once inside, the offenders ran towards the area of the bar which was occupied by a club patron. His wife was nearby in a smoking area. The club manager was counting the day’s takings in a nearby open office. The shorter offender fired one round at a television and a second round at a wall. There were two safes in the office of the club. One was locked and the other was unlocked and open. The shorter offender removed cash boxes from the open safe and placed them into a nearby bin and then into a cardboard box assisted by the taller offender. They then left the club with $11,691.

8. [76]

   Mr Ramrakha submitted that the evidence of RS was critical to the case against the appellant. As to the alleged Wangi conspiracy, Mr Ramrakha submitted that RS’s evidence strongly suggested that the conspiracy concerned a venue other than the Wangi RSL club. He submitted that this conclusion did not flow only from RS referring to the club as the Wangi Workers club. He conceded that if considered in isolation, RS’s reference to the Wangi Workers Club might simply have been a mistake. However, he submitted that there was more to RS’s evidence than a reference to the club’s name.

9. [77]

   Mr Ramrakha submitted that in describing the events that occurred on 21 October 2012, RS stated that the offenders attended the venue in a Camry and that they drove to a laneway or side street beside the club. Maps of the area adduced at trial (exhibits 5 and 32), in Mr Ramrakha’s submission, did not show anything resembling a side street or laneway beside the Wangi RSL club, but did depict a side street beside the Wangi Workers club. Further, RS’s evidence about the venue being “on the lake” did not resolve the issue, as both clubs are situated on the lake. RS’s other descriptions of the venue did not confirm the identity of the club. For example, his reference to being at “the back of the club on the grassed area” seeing “the back door” of the club and being at “the front door” when red and blue lights came up the main street, in Mr Ramrakha’s submission, did not describe the Wangi RSL club when compared with photographs of the venue in exhibit 1.

10. [78]

    The evidence of Ms Dyke-Clarke who owned the hardware store from which the cash register was taken, in Mr Ramrakha’s submission, did not corroborate the location of the venue. Whilst her hardware store was near the Wangi RSL club, he submitted that it was also within at least seeing distance of the Wangi Workers club: exhibits 5 and 32.

11. [79]

    As to the involvement of Raymond Wetherill, apart from evidence of telephone contact between the appellant and Mr Wetherill and intercepted telephone calls on 10 and 14 December 2013, Mr Ramrakha submitted that there was no evidence at all addressing Mr Wetherill’s participation in the Wangi RSL robbery and there was no evidence that he was in the area on the night of the offence. There was no evidence as to his appearance, and no basis for supposing that his height and build were consistent with the height and build of the taller man seen in the CCTV footage during the robbery.

12. [80]

    Mr Ramrakha submitted that the two intercepted phone calls assumed some significance in the case. The Crown Prosecutor contended that they contained important admissions which established the appellant’s participation in the robbery and not some other offences. In the first call on 10 December 2013, Mr Ramrakha submitted that it was clear that the pair were discussing a past offence and considering a future offence. He said that past offence appears to have occurred soon after the appellant was released from custody, and by reference to the appellant’s custody record, his release occurred on 2 July 2012. There were two safes at the Wangi RSL, only one of which was accessed. However the appellant said in the conversation that attempts have been made to open the second safe. Mr Ramrakha submitted that there was no evidence of any attempt made by the offenders at the Wangi RSL club on 18 November 2012 to open the second unopened safe in the CCTV footage. Further, he submitted that Mr Wetherill’s reference to “letting off rounds” was inaudible. Even if it was heard by the appellant, in Mr Ramrakha’s submission it could not be said that he embraced the truth of that statement. Indeed, in his submission Mr Sampson’s reply suggested that he was distancing himself from it.

13. [81]

    In the second call on 14 December 2013, Mr Ramrakha submitted that the pair were discussing a past offence and considering a future offence. The past offence appeared to have occurred at a venue on a lake on a busy night and might have referred to an offence in either 2012 or 2013. There was no evidence that the robbery at the RSL club occurred on a busy night. Rather it occurred on a Sunday night after closing time when there were only two club patrons and one club employee present.

14. [82]

    As to the appellant’s height and build, the Crown Prosecutor submitted at trial that the appellant's height and build was consistent with the appearance of the shorter man in the CCTV footage, and he urged the court to make its own assessment of the skin tone of the person by considering the CCTV footage. The three eyewitnesses described the skin tone of the offender as being other than white. One said that the offender's complexion was olive, not Caucasian, like a tan colour. Another said that the colour was brown like a Māori or Islander type colour of skin. Another said that the man's skin colour was dark, maybe Islander or Aboriginal. However, the appellant’s wife gave evidence that Mr Sampson did not tan and “went red”. In Mr Ramrakha’s submission, the evidence of the witnesses could not be rejected out of hand as they were in a better position than the trial judge, as they saw the offender in the flesh.

15. [83]

    As to the appellant’s tattoos, the Crown Prosecutor had submitted that it was implausible that a person unconnected with the appellant would have bandages placed in areas which would conceal identifiable features. Mr Ramrakha submitted that it was equally implausible to suppose that a person would do so when concealment would have been easily achieved by wearing long pants. In any event, he submitted that it was only one circumstance and not determinative of guilt. He noted that the tattoo on the appellant’s lower leg was barely noticeable.

16. [84]

    As to the appellant’s clothing, Mr Ramrakha submitted that it was not distinctive, and the appellant's connection to the clothing seized from his mother's home was indeterminate.

17. [85]

    Mr Ramrakha submitted that taking into account the circumstantial nature of the Crown case, there were competing inferences available, and the appellant's guilt was not the only rational inference that could be drawn from the entirety of the evidence. In his submission, it was a real possibility that the offence was committed by another person. For these reasons, Mr Ramrakha submitted that the court should find that the Crown had not discharged its burden of proving beyond reasonable doubt that the shorter man was the appellant.

18. [86]

    The Crown submitted that upon an independent assessment of the whole of the evidence, the court would conclude that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant was guilty of the offences, and it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty of both offences.

19. [87]

    Ms Bonner submitted that the case rested upon circumstantial evidence and invited metaphorical reasoning of the kind described by Dawson J in Shepherd, that the evidence consisted of strands in a cable. Guilt had to be proved by inference, having regard to the whole of the evidence. She conceded that the guilt of the appellant could not be established beyond reasonable doubt if there was any inference, other than guilt, which was consistent with innocence and was reasonably open on the evidence.

20. [88]

    I now turn to the bodies of evidence identified by the Crown at trial as the circumstantial evidence which, taken together, proved the appellant’s guilt on both counts beyond reasonable doubt. The critical issues at trial were the proof of the appellant's identity at the Wangi RSL club robbery and the credibility of RS.

21. [89]

    This evidence was not disputed by the appellant at trial. The appellant’s mother and wife lived at 253 Awaba Rd in Toronto which was about a 15 minute drive from the Wangi RSL. Ms Phillips, a Community Corrections officer gave evidence on 14 May 2021 that the appellant told her on 15 November 2012 that he was staying at his mother's house with his wife. He told her that he had been walking his dog, having lunch by the lake and had been spearfishing at Wangi. In his ERISP of 3 February 2016, the appellant accepted that he frequented the area at the relevant time, before and after the Wangi RSL robbery.

22. [90]

    This evidence may be broken up into parts. It is clear beyond any doubt that there were two participants in the robbery. One was shorter than the other and carried a firearm. The other carried a pole. The shorter of the two was wearing dark coloured shorts with an insignia on the left bottom and distinctive running shoes. On his left leg, he had a light-coloured bandage below his left knee, and a bandage above his ankle.

23. [91]

    There was an abundance of evidence (including photographs of the appellant’s legs), not disputed by the appellant, that he had a visible tattoo just below his left knee, and a lighter inked tattoo just above his left ankle. They were distinct markings. The placement of the bandages on the shorter man was clearly consistent with the areas where the appellant had tattoos.

24. [92]

    Evidence of the robbery itself included three eyewitnesses and CCTV footage. That footage showed that of the two men in the robbery, one was taller than the other (exhibit 4). The shorter man carried a long-barrelled firearm. He wore a bandana over his head and a face mask and a dark long-sleeved top, dark shorts, a bandage around his left upper calf below the knee and white gloves. His forehead, eyes and lower legs could be seen. The taller man wore a red or orange head covering, long sleeves, pants and carried a pole. His eyes could be seen but the rest of his face was covered.

25. [93]

    The eyewitnesses in the Wangi RSL club were Michael Heaton, the night manager, and John Gazzard and Leslie Jones, who were patrons. Each described the offenders’ physical characteristics, including height, build, skin tone, clothing and a description of the weapons. The two men described the shorter man as between 5’8” to 5’10” tall, stocky and both thought he was of a darker skin colour. Ms Jones, who crouched down near a pool table, could see the shorter man’s legs. The Crown adduced evidence of the appellant’s height and build at the relevant time, taken from a Community Offender Support Program (COSP) assessment intake form dated 3 July 2012, which described the appellant as an Aboriginal man with a muscular solid build born in 1984 and who was 5’10” tall.

26. [94]

    Allowing for the fact that the witnesses gave evidence nine years after the incident and that they were in a stressful situation in the short time that they observed the shorter man, it is unsurprising that their evidence, in particular about his skin colour, was equivocal. I am mindful that I do not enjoy the advantage of the trial judge in evaluating a comparison between the offender’s skin colour in court and the CCTV footage, even allowing for the passage of time and the evidence of the witnesses. Allowing for a distortion in colour in the CCTV footage and the ERISPs, my own impression is that the skin colour of the offender and the shorter person shown on the CCTV footage is not dissimilar. That is in accordance with her Honour’s findings. As to the height and build of the shorter man, the witnesses’ description that he was stocky, is in accordance with my own viewing of the CCTV footage, the photographs in exhibits 33 and 44 and the appellant’s presentation in the ERISPs.

27. [95]

    Police surveillance footage was taken on 27 October 2012 of a man leaving 253 Awaba Road, and catching a taxi to Fassifern railway station. In his ERISP of 3 February 2016, the appellant accepted that the person depicted was him. His jeans had a distinctive pale flap on the left pocket. At trial, the Crown contended that these jeans were identical to a pair located by police in a Holden Vectra at 253 Awaba Rd on 21 November 2012 when a search warrant was executed. The Crown also contended that the jacket worn in the 27 October 2012 footage was similar to that worn by the shorter man at the Wangi RSL robbery. The appellant could not be excluded as the major contributor to the DNA profile mixture recovered three days after the offence, from the shorts and socks found in the pocket of those shorts which had a Russell brand logo in the bottom left corner, and which was very much consistent with the shorts worn by the shorter man on the CCTV footage. There was thus a forensic connection between the appellant and the shorts found. Furthermore, joggers found at the premises looked identical to those worn by the shorter man.

28. [96]

    The Crown contended that the appellant was in a perilous financial position and was motivated to offend to obtain money. Evidence was adduced that on 18 November 2012, the day of the robbery, a “Terry” inspected a Holden Vectra vehicle in the local area and told the vendor that he needed to organise his finances before purchasing it. The vendor, Mr Michael Herma, who gave evidence on 13 May 2021, told “Terry” to return when he had $2000 cash. The same “Terry” returned on 19 November 2012 (the day after the robbery) with $2000 and purchased the car. The appellant did not challenge Mr Herma’s evidence.

29. [97]

    The Vectra was parked at 253 Awaba Road when police attended to search the property. Police located four .22 cartridges in the boot of the car, consistent with those which had been discharged during the robbery at Wangi RSL. Police also located a pair of jeans in the boot of the Vectra which were distinctive, and identical to the jeans shown in the footage at Fassifern station.

30. [98]

    On 22 November 2012, the appellant told Ms Phillips that his mother had given him $2,000 from a Lotto win and that he had bought a Holden Vectra. In his ERISPs on 3 and 9 February 2016, he denied having purchased the car and denied owning the ammunition. The appellant’s mother, Judith Sampson, gave evidence of having given Mr Sampson cash from Lotto winnings. Her Honour found that Ms Sampson's evidence was vague and unconvincing. She was in a position to observe Ms Sampson give evidence and make that finding. Her Honour accepted that Ms Sampson gave the appellant at least $2,000, but that she had done so weeks before he purchased the car. I accept that the appellant told the vendor of the car on the day before he purchased it that he needed to organise finances, which was inconsistent with him having those funds on that day.

31. [99]

    Furthermore, Ms Tanya Russell, the manager of the Tomago COSP, gave evidence on 17 May 2021 that the appellant entered the COSP on 3 July 2012, but exited on 9 October 2012, at which he was not paying his board. There was also evidence that the appellant was unemployed and had recently been cut off from Centrelink payments.

32. [100]

    I am satisfied that the appellant was in a very poor financial position and had a motivation to obtain money at the time of the robbery.

33. [101]

    Telephone records clearly demonstrate that before and shortly after the offence on 18 November 2012 there was contact between the appellant and Mr Wetherill. The Crown case was that Mr Wetherill was the taller offender seen on the CCTV. The Crown contended that the contact frequency dropped away soon after the offence, consistent with planning and post-offending discussions. Telephone records established that between 15 November 2012 and 20 November 2012 the appellant was in contact with Mr Wetherill, and that the contact greatly reduced after 20 November 2012.

34. [102]

    The Crown also relied upon evidence of intercepted calls on 10 and 14 December 2013 between the appellant and Mr Wetherill, during which the Crown contended that the appellant made admissions to the offending. In intercepted conversations of 10 and 14 December 2013, the appellant and Mr Wetherill are clearly discussing a past offence they had committed together “on the lake” and were making plans for a future offence at the same venue or premises, with the appellant clearly stating, “will be more prepared” and “if we would have got the other one open”. Much is unclear or inaudible.

35. [103]

    The office inside the Wangi RSL had two safes. There was one safe, which Mr Heaton did not have access to, and another safe which he could access. One safe was open at the start of the incident, but the main safe was closed. In the intercepted call on 10 December 2013, the appellant clearly said “you know... If we were, if we would have, if we would have got that other one open, we would have been right...”. In my opinion this remark does not necessarily indicate that an attempt was made to open this second safe.

36. [104]

    Her Honour acknowledged that before a drawing an inference adverse to the appellant that he tacitly agreed with Mr Wetherill’s audible comment about “letting off rounds” and was a reference to the Wangi RSL robbery, she would need to be satisfied that the appellant heard the comment and that his lack of response amounted to acceptance of the truth of what he said. The defence position at trial was that her Honour would not be satisfied that the comments related to the Wangi RSL robbery rather than another offence, and in particular an offence at the Wangi Workers club. Her Honour noted that the appellant did not respond to or adopt the comment “letting off rounds and shit like that”, although he did not object, reject or query it. Her Honour was satisfied, however, that the appellant acknowledged or embraced the truth of the fact that he and Mr Wetherill had committed an offence on the lake and were involved in letting off rounds. I agree, having regard to the whole of the intercepted conversation. I observe that the evidence of police officers (which was not challenged) was that there were no rounds let off in a September 2012 robbery at Wangi Workers club. An inference can therefore be drawn that the reference is to the instant robbery.

37. [105]

    In the call on 14 December 2013, Mr Wetherill audibly said “we can do the same one as we did before man on the fucken lake, not as busy night, on the lake and not on a busy night. Same way”, and the appellant replied “yeah, yeah”. In my view this does not indicate the Wangi RSL club was busy on 21 November 2012 but rather that any future offence would be in a club that was not busy, as had occurred previously.

38. [106]

    There was evidence from police officers that other offences they had investigated included a robbery at the Wangi Workers club, and at the Macquarie club on 3 September 2012. There were at least eight offenders involved in each of those offences. The Macquarie club was not on the lake. Wangi Workers club was on the lake and had two safes, one of which was accessed during the robbery, but the evidence of police officers was that no firearm was discharged (or gun used) in those robberies.

39. [107]

    In my opinion the evidence of the appellant’s conversations with Mr Wetherill can be taken into account as part of the circumstantial case. In particular, with other evidence, it supports an inference that shots were fired only at the Wangi RSL. I note that Mr Wetherill did not give evidence at trial, and the appellant did not seek that he be called.

40. [108]

    Mr Sampson conceded that he was familiar with firearms at the relevant time. There was evidence at trial of a photograph of the appellant with a shotgun which he sent to an undercover operative Gerald (a pseudonym), who was attempting to purchase firearms from the appellant. Gerald gave evidence that he purchased a .22 calibre Winchester rifle from the appellant on 4 January 2014. In his ERISP of 9 February 2016, the appellant accepted that he handled .22 calibre rifles when he went hunting, but denied selling Gerald a .22 rifle.

41. [109]

    The evidence of RS has been set out in detail above. His credibility and reliability were significant issues at trial. Her Honour had the considerable advantage of hearing and seeing RS give evidence and due deference must be given to her Honour’s assessment of his evidence. I observe that her Honour appropriately warned herself pursuant to s 165 of the Evidence Act that as a registered source, RS’s evidence was of a kind that may be unreliable. She noted that the experience of the Courts is that the evidence of witnesses who give an account after being provided with an inducement (and thus having received a benefit) may be unreliable. For that reason, when her Honour assessed RS’s evidence and determined whether or not to accept it and what weight to give it, she exercised special caution.

42. [110]

    Her Honour properly observed that RS had an obvious motive to stick to the account he had given in his induced statements. She said that experience has shown that once a witness has committed himself to a version in a statement, a witness may feel locked into that account even if it contained inaccuracies or matters that were substantially untrue. Furthermore, RS’s evidence might have been unreliable because he was a witness reasonably supposed to be concerned in the Wangi conspiracy offence. A person in this category had an obvious incentive to give an account to police that minimised his role, and having given that account, to adhere to it in evidence that he subsequently gave. She observed that she had to scrutinise RS’s evidence and consider whether it appeared to be credible and to look where possible for independent support.

43. [111]

    Her Honour believed that RS presented as a weary witness but not one with any axe to grind. He had a poor memory of detail, especially with respect to the conversation he had with the accused [redacted].

44. [112]

    RS drove with police to [redacted] where he had a conversation with the appellant [redacted]. RS alleged that Mr Sampson made admissions to him about the robbery, but they were not relied upon by her Honour in her judgment as she found that he was unreliable on that topic, and I likewise put those alleged admissions to one side.

45. [113]

    The Crown submitted that the evidence of RS supported a conclusion that the Wangi conspiracy concerned the Wangi RSL. It is but another part of the Crown’s circumstantial case.

46. [114]

    In the early hours of 22 October 2012, RS was arrested at Warners Bay whilst he was in the driver's seat of a red Nissan Skyline. He was charged with possessing an unregistered firearm, a 30-30 Winchester rifle, and other firearms and weapons offences. He pleaded guilty to the charges. He gave police eight induced statements and was not charged for his involvement in any criminal activity disclosed in those statements. His involvement in the Wangi conspiracy was one such disclosure.

47. [115]

    Her Honour noted that RS’s evidence was confused and confusing. He stated that he was involved with one matter at Wangi. RS said that at about midday on 21 October 2012 he was parked in a red Skyline out the front of the Wangi club. He was driving and the appellant, Mark Creighton and Creighton's children were in the car. RS dropped the appellant and Mr Creighton off to go and look at the club so they could rob it that night. The children got out of the car and came running back with a cash register. A map tendered as exhibit 32 showed that Ms Dyke-Clark’s hardware store was less than 100 metres from the Wangi RSL club, but about a kilometre from the Wangi Workers Club. The Crown Prosecutor submitted that it would be unlikely that children would run with a stolen cash register down the street for more than a kilometre, which I accept. As to location of the hardware store in exhibit 32, noting that the key denotes 100 metres, it is apparent that the store is very much closer to the Wangi RSL Club than the Wangi Workers Club, which appears to be across Wangi Wangi Bay from the hardware store. In my view, it is very likely that the Skyline was parked near Wangi RSL so that the appellant and Mr Creighton could look at it before robbing it.

48. [116]

    RS said that the Skyline was parked not far from the Wangi club and he could see the club. I accept that it is much more likely that he would have been able to see the Wangi RSL club from a position close to the hardware store, rather than the Wangi Workers club. Mr Creighton and the appellant then got back in the car. They dropped the appellant at his mother's home in Toronto, planning to pick him up again later and to rob the club. Like her Honour, I accept this evidence.

49. [117]

    RS said that they returned to pick up the appellant and three firearms from his mother's house: a 30-30 rifle, a .22 rifle and a 12 gauge shotgun. On testing, the 30-30 and 22 rifle worked. They dropped the .22 rifle and 12 gauge back at the appellant’s mother’s house and kept the 30-30. When RS was arrested, the 30-30 was in the car.

50. [118]

    RS said that he, the appellant, Mr Creighton and the appellant's brother Brad Sampson drove to Wangi in the red Skyline and the Toyota Camry or Toyota Aurion to commit the robbery. RS was in the Skyline. It was intended that the robbery be committed in the Aurion and at some point they got into that car. The Aurion parked in a laneway or side street beside the Wangi club. They got out and Brad stayed in the Aurion.

51. [119]

    As to whether RS’s description of the location was more consistent with the Wangi Workers Club, because RS referred to a “laneway” or “side street” beside the club, in my view this may well have referred to the Wangi RSL Club. The offenders travelled in two cars, the Skyline and a Camry or Aurion. At some point, they all got into the Camry. RS’s evidence about this is referred to above. His reference to a laneway or side street may well have encompassed a range of types of roadways, including a large driveway or car park, or street, and may not have been directly alongside the club. It was night time, and I accept that RS was not familiar with the area. The reproductions of the maps tendered as exhibits 5 and 32, in my opinion do not exclude these realistic possibilities, contrary to the submission of Mr Ramrakha. Indeed the photos in exhibit 1 show what may be described as a laneway or side street adjacent to the Wangi RSL.

52. [120]

    RS said that the appellant had a rifle and that he had a machete. RS’s evidence was clear that he, Mr Creighton and Mr Sampson lay on a grassed area watching the back doors. They could see the back doors into the club. They talked about how to gain entry. Photographs which were tendered as part of exhibit 1 show the side entry of two glass doors (which may have been the back doors) to the club off a car park, and a grassy area which adjoins the walkway to the doors. RS also said that as they were about to go through the front door, red and blue lights came up the main street of Wangi. RS grabbed the top of the rifle and said, “we have to go”. Whether RS was referring to entering the front doors or the side entry doors is of no substantial moment in my view. Likewise, his reference to police cars coming up the main street does not advance the appellant’s case, because it is apparent from the maps in exhibit 5 and 32 that Wangi is a small community positioned on a peninsula or land bridge. It is likely that sirens blaring through the main part of Wangi could be heard from most nearby locations.

53. [121]

    RS said that they got back into the Aurion, picked up the red Skyline and drove to Mr Creighton's house, and then in the two cars to Warners Bay to steal a truck and get an ATM. RS was in the red Skyline with the appellant. The appellant and Mr Creighton got out of their cars to go into a truck yard. Five minutes later an unmarked police car pulled up and RS was arrested. As I have said, the 30-30 and machete were in the Skyline.

54. [122]

    RS variously said that the target of the conspiracy was a Wangi club or the Wangi Workers Club, or the Wangi RSL Club. The Wangi Workers Club had been the target of a robbery on 3 September 2012, about six weeks before the Wangi conspiracy. No person has ever been charged with respect to that offence. There was no evidence that a firearm was discharged in that offence or that a gun was used. In cross-examination by the Crown pursuant to leave granted by her Honour, it is clear that in his statement made on 18 September 2014, (about 2 years after the Wangi conspiracy) RS believed that the target of the conspiracy was the Wangi RSL club. He had stated that they were looking at the Wangi RSL club so that they could rob it later. RS said that he was mistaken when he had referred to the Wangi Workers club. In cross-examination by the appellant, RS said that he could not remember if it was the Workers club or the RSL. After being shown the footage of the robbery at the Wangi Workers club by the appellant, RS denied that he robbed it. As to any confusion that he had about the names of the clubs, RS said that he was not from the area.

55. [123]

    I accept that whilst RS’s evidence of the precise venue was imprecise (as found by her Honour), this may be explained by him not being from the area and because the events took place nine years previous to him giving evidence. Further, at the time of the events he was a drug user and RS said that he had probably taken drugs on the day of the Wangi conspiracy.

56. [124]

    The venue of the conspiracy being the Wangi RSL and not the Wangi Workers club was supported by RS’s account of attending the Wangi RSL on the day of the intended robbery, parking the red Nissan Skyline not far from it, and Mr Creighton's children getting out of the car and grabbing a cash register. The evidence of Ms Dyke-Clark (who owned the hardware store from where the cash register was stolen on the afternoon of 21 October 2012) supported a conclusion that the club was the Wangi RSL. Her store was close to the Wangi RSL, and Ms Dyke-Clark said that she had seen a red car on the southern side of the store for most of the afternoon.

57. [125]

    I am satisfied that RS was a reliable and credible witness with respect to the evidence he gave about the Wangi conspiracy. He had good reason to remember it, as he was arrested following the event and was taken into custody. I accept that the conspiracy took place at the Wangi RSL rather than the Workers Club, that Mr Sampson was there, armed with a 30-30 shotgun, wearing dark clothing and in company with a conspirator (RS) who had a weapon (a machete).

58. [126]

    The coincidence evidence, which was reliable in essential respects, and which had strong similarities to the robbery, leads to an inference that it is improbable that the Wangi conspiracy and the robbery were committed by a person other than Mr Sampson.

59. [127]

    During oral submissions, Mr Ramrakha submitted that the coincidence evidence was a “link in a chain” rather than a “strand in a cable” and which was an indispensable intermediate fact requiring proof beyond reasonable doubt.

60. [128]

    In Davidson v R (2009) 75 NSWLR 150; (2009) 195 A Crim R 406; [2009] NSWCCA 150, Simpson J, as her Honour then was, said at [74]:

61. [129]

    In my opinion, the coincidence evidence was not “indispensable”. It was certainly of some power and significance in the circumstantial case presented by the Crown. However, that does not make it “indispensable”. Even without that evidence, there was still a case that incriminated Mr Sampson. Indeed the evidence of the bandages on the shorter man’s left leg, in the very places where Mr Sampson had tattoos, is arguably of greater significance than the coincidence evidence. I therefore reject this submission.

62. [130]

    In a circumstantial case, guilt will not be established beyond reasonable doubt if there is any inference, other than guilt, which is consistent with innocence and is reasonably open on the evidence. I am satisfied that, having regard to the whole of the evidence, that there is no rational inference available other than guilt with respect to both charges.

63. [131]

    I have conducted an independent assessment of the whole of the evidence. I have taken into account the advantage of the trial judge in assessing the credibility and reliability of the evidence of, in particular, the witnesses RS and Judith Sampson. I am satisfied that it was open to her Honour, on all the evidence adduced at trial, to find the appellant guilty of both counts.

64. [132]

    It follows that I would dismiss ground 2.

Conclusion

1. [133]

   The orders I propose with respect to the appeal against conviction are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [134]

   So far as the appeal against sentence is concerned, I agree with the reasons of Beech-Jones CJ at CL and the orders that his Honour proposes.

3. [135]

   Prior to the delivery of the judgment, the parties and the Crown Solicitors’ office acting on behalf of the Commissioner of Police requested the opportunity to review the judgment prior to publication to determine whether there was a risk of the disclosure of RS’s identity. This application was refused as it is not the practice of the Court to provide what is in effect drafts of its judgments to any person prior to their being delivered. Instead the parties and the Crown Solicitors’ Office were advised that an interim non publication order would be made over the entirety of the judgment with a timetable fixed for submissions to be made about any final such orders or orders under similar legislation.

4. [136]

   Accordingly, given my agreement with the orders proposed by Beech-Jones CJ at CL, I propose the following orders as encompassing the reasons of the Court:

   1. (1)

      Grant leave to appeal against convictions;

   2. (2)

      Dismiss the appeal against convictions;

   3. (3)

      Grant leave to appeal against sentence;

   4. (4)

      Dismiss the appeal against sentence;

   5. (5)

      Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (‘Act’) and on the grounds referred to in s 8(1)(c) and (e) of the Act, the portions identified at Annexure A to these orders of the reasons for judgment of the Court of Criminal Appeal in Sampson v R [2023] NSWCCA 239, are not to be published or disclosed, save that the judgment including those portions can be provided to:

   6. (6)

      Pursuant to s 7 of the Act and on the grounds referred to in s 8(1)(c) and (e) of the Act, there is to be no publication of any evidence, submissions, document or information in the proceedings that would identify, or tend to identify, the witness referred to as “RS” in the judgment.

   7. (7)

      Pursuant to ss 11 and 12 of the Act, orders 5 and 6 apply throughout the Commonwealth for a period of 30 years from the date of these orders.

   8. (8)

      Until further order, seven days’ notice is to be given to the solicitors for the parties and the Crown Solicitor of NSW of any application made by a non-party to access the Court file.

   9. (9)

      Until further order, all affidavits read, and any document filed, served or tendered in connection with applications for non-publication and/or suppression in the proceedings before this Court, be treated as confidential in the Court file, and placed in a sealed envelope, only to be opened on the order of a judge of this Court.