Selby v R

1. [1]

   THE COURT: Mark James Selby was charged with one count of demanding money with menaces, contrary to s 99(1) of the Crimes Act 1900 (NSW), and one count of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The victim and location in each case was the same: Mr Ravin Singh at his business premises at Arndell Park in western Sydney. The first occasion was on 6 July 2012; the second on 15 October 2012.

2. [2]

   Shortly before the trial, Mr Selby pleaded guilty to the second count. The Crown’s case was much stronger in relation to that count. It included (a) CCTV footage of a car registered in the name of the applicant’s wife arriving and leaving the premises; (b) expert evidence identifying his fingerprints on the door of the premises, and (c) expert DNA evidence from a swab taken from the door handle matching his own DNA.

3. [3]

   The indictment was amended after that plea, and Mr Selby stood trial on a single charge of demanding money with menaces. Following a voir dire at the commencement of the trial, the trial judge ruled that the evidence relating to the later intimidation was admissible as coincidence evidence. No challenge is made to that ruling. In accordance with it, Mr Singh gave evidence of what he believed to be the same man threatening him with a gun on 6 July and 15 October 2012, and (as will be seen in more detail below) it was not substantively in contest, in light of the forensic evidence adduced by the Crown, that on the second occasion, that man was Mr Selby.

4. [4]

   The trial lasted four days. A jury returned a guilty verdict on the s 99(1) count.

5. [5]

   There are two grounds of appeal. Both focus upon the trial judge’s directions to the jury, and they are interrelated. The grounds are:

   1. (1)

      The trial judge erred in directing the jury that they may use coincidence evidence to corroborate identification evidence.

   2. (2)

      The [trial] judge erred in directing the jury that they may use coincidence evidence reasoning, when it was not open on the evidence for Evidence Act 1995 (NSW), s 98 to be engaged.

6. [6]

   This is therefore an unusual case, as senior counsel for the Crown observed at the commencement of her submissions in this Court. The issue on appeal is not whether an indictment ought to be severed, or whether coincidence evidence was wrongly received. The issue is whether there was error in the directions given to the jury relating to the use which might be made of the coincidence evidence.

7. [7]

   On appeal, Mr Selby relied upon two sets of submissions, each directed to one of those grounds, and drafted by different counsel. It is possible to turn to the grounds almost immediately, by reason of the following helpful overview contained in those submissions:

8. [8]

   The Crown adduced the following evidence in support of the conclusion that the man who demanded money from Mr Singh on 5 July was the same man who intimidated him on 15 October 2012.

   1. (1)

      First, there was a recording of a triple-0 call made by Mr Singh on 15 October 2012, in which he, repeatedly, said that it was the same man. The recording includes statements by Mr Singh that “this is the guy, he was here for last – I think like a month or so ago” and “this is the second time I’ve seen him”. Ms Singh is recorded as saying that he was calling about two minutes after the man had left the premises.

   2. (2)

      Secondly, there was the unequivocal testimonial evidence of Mr Singh, who denied in cross-examination that it was possible that there were two different people on 6 July and 15 October.

   3. (3)

      Thirdly, there were similarities in the appearance and conduct of the two men. These included that both men had been wearing sunglasses, had their heads covered and had produced a small gun.

   4. (4)

      Fourthly, there was the fact that both offences were of the same nature and had been committed at the same location against the same victim.

9. [9]

   At trial, the defence pointed to a series of dissimilarities, including that (a) the first man had a ginger goatee, while the second was clean shaven; (b) there was a white cut or spot or scar on the first man’s lip which caused his words to be mumbled, while the second spoke without disability; and (c) the absence of words connecting the second incident with the first: rather than asking “where’s the money?” or “I’m back to collect”, the only evidence of what was said was a threat to the lives of Mr Singh and his work colleague.

Closing addresses and the judge’s summing up

1. [10]

   In its closing address, the Crown submitted that the first issue was whether the jury was satisfied beyond reasonable doubt that Mr Selby was the man on the second occasion; if not, they had to acquit. The Crown then made the following submission:

2. [11]

   The trial judge’s summing up occupied 27 double-spaced pages of transcript. Pages 11-13 included a direction as to coincidence evidence, as to which no objection was taken. That aspect of the summing up involved his Honour reading verbatim from a written document of 11 pages (MFI 5) which was provided to the jury at that point. It had previously been provided to the Crown and the defence, who had an opportunity overnight to comment on it, and who exercised that opportunity. The relevant passage is as follows:

3. [12]

   Pages 20-22 of the transcript of the summing up contain the trial judge’s summary of the Crown case, and pages 22-25 summarise the defence case. The focus of the submissions on appeal was on that part of the summary of the Crown case where the trial judge described the way the Crown said coincidence evidence could be used. This passage was not contained in MFI 5 (the trial judge completed reading from it at p 19 of the transcript). The passage is as follows:

4. [13]

   The passage referring to corroboration of the evidence of Mr Singh, which is relevant to ground 1 of the appeal, is emphasised above.

5. [14]

   At the conclusion of the summing up, the trial judge asked counsel if there was anything they wished to raise, and neither the Crown nor counsel then appearing for the applicant said there was anything they wished to raise.

Relevant provisions of the Evidence Act

1. [15]

   Sections 95, 98 and 101 of the Evidence Act are as follows:

2. [16]

   It is convenient to address ground 2 first.

Ground 2

1. [17]

   The second ground invited this Court to have regard to the dissimilar personal characteristics between the two offences, notably that:

   1. (1)

      The person on 6 July was right-handed, whereas the person on 15 October was left-handed,

   2. (2)

      The person on 6 July had a ginger goatee while the person on 15 October was clean-shaven,

   3. (3)

      The person on 6 July appeared to have a speech impairment which was not apparent on 15 October, and

   4. (4)

      The person on 15 October was said to look “like a Lebanese”.

2. [18]

   The applicant relied upon a passage taken from R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [79], quoted in Saoud v R [2014] NSWCA 136 at [45]:

3. [19]

   The applicant submitted that although a “striking similarity” was not required under s 97, “by contrast, coincidence evidence is ‘based upon similarities’”. The submission proceeded:

4. [20]

   The consequence was that it was submitted that the trial judge was not entitled to direct the jury to adopt coincidence reasoning.

5. [21]

   There are a number of threshold difficulties with this submission.

6. [22]

   The first is that the evidence was adduced pursuant to the ruling of the trial judge which was not challenged. There is a tension between the unchallenged ruling that coincidence evidence be adduced, and the challenge to the trial judge giving a direction as to the proper use of that evidence by the jury. If the coincidence evidence were documentary, it is difficult to see how such a ground could be maintained without challenging the ruling. However, and perhaps with this in mind, Mr Selby made something of the fact that Mr Singh’s evidence at trial as to what the man told him in October was less extensive than his evidence on the voir dire.

7. [23]

   A second difficulty is that it is not to the point merely to identify various dissimilarities. One way of explaining why this is so is to observe that one incident occurred on a Monday, the other on a Friday. That particular dissimilarity has no bearing whatsoever on the process of inferential reasoning that it permitted.

8. [24]

   The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence.

9. [25]

   This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded “[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference.” The same point was made in Page v The Queen [2015] VSCA 357 at [59]:

10. [26]

    The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. In El-Haddad the reasons continued:

11. [27]

    The problem with this ground is that the dissimilarities in appearance between voice and mannerism of the man who appeared in July and in October do not undercut the improbability that the same victim was targeted for a similar offence at the same premises in a relatively short period of time by different individuals. For example, if there were evidence that the man in July was an amputee, but the man in October was able-bodied, that would materially diminish the probative value of coincidence reasoning. But a difference in an orange goatee, or an apparent voice defect, or the hand in which the gun was being held, does not materially alter the unlikelihood of Mr Singh being threatened twice at his premises by two different men.

12. [28]

    It was amply open to the trial judge to conclude that coincidence reasoning was available to the jury. No error has been demonstrated. We do not consider that there was error in the trial judge permitting the jury to reason based on the improbability of two different men threatening Mr Singh at the same premises in July and October 2012.

13. [29]

    Assuming favourably to the applicant (but without deciding) that in light of the objection in the voir dire r 4 of the Criminal Appeal Rules does not apply, there should be a grant of leave, but the appeal must be dismissed.

Ground 1

1. [30]

   In support of the first ground, the applicant distinguished between using circumstantial evidence to bolster the reliability of identification evidence, which was said to be impermissible, and using circumstantial evidence in combination with identification evidence in order to prove guilt. This was said to flow from R v Razzak [2004] NSWCCA 62. The submission was made that the authorities demanded “a strict quarantining of different forms of evidence” in cases of identification. The applicant submitted that Razzak was authority for:

2. [31]

   Razzak was also a case where the only issue was identity. In Razzak at [25], Levine J, with whom O’Keefe and Bell JJ agreed, observed that it was common ground that other evidence could not be used to “bolster” the flawed “resemblance evidence” of a witness. His Honour added “[a]s a matter of logic that simply could not occur. Mr Valu’s flawed ‘resemblance evidence’ would always have that quality”.

3. [32]

   Levine J returned to the point at [28], saying that:

4. [33]

   Finally, his Honour reiterated the point at [36]:

5. [34]

   The distinction between using other evidence to bolster identification evidence, as opposed to going to the strength of the Crown case as a whole, was applied in R v Winters [2010] SASC 100 at [33] (Nyland, White and Layton JJ).

6. [35]

   There are two separate reasons why this ground must fail.

7. [36]

   The distinction made by Levine J in Razzak may be significant if, as was the case in Razzak, there is evidence which falls well short of “positive identification” and where the issue is admissibility. That is not this case. Mr Singh was under no doubt that he saw the same man twice. Moreover, there was no dispute in the present appeal that all of the evidence was properly before the jury.

8. [37]

   Thus, there was never presented to the jury any issue of using coincidence reasoning to strengthen weak identification evidence. Mr Singh was unequivocal, both on his triple-O call, and at the trial. He may of course have been mistaken, and whether his evidence, together with all the other evidence in the case, satisfied the jury to the criminal standard was the ultimate issue for the jury. But this was never a case where the forbidden process of “staged” reasoning would apply.

9. [38]

   This was after all a relatively straightforward trial. It was made still more straightforward by the approach adopted by the Crown, inviting the jury to acquit unless they were persuaded beyond reasonable doubt that Mr Selby was the man who intimidated Mr Singh on 15 October, and then inviting them to evaluate Mr Singh’s evidence in light of, inter alia, the coincidence reasoning, to determine whether Mr Selby had demanded money with menaces on 6 July. It is against that background that the question of the adequacy of the trial judge’s directions falls to be assessed.

10. [39]

    The second reason why this ground must be rejected is that, even taking the applicant’s submissions at their highest, on no view does the summing up by the trial judge, fairly read, violate the distinction identified in Razzak.

11. [40]

    The complaint is based upon the use of the word “corroborate” once in the summing up. As counsel candidly and properly acknowledged during the hearing of the appeal, if the words “to corroborate the evidence of Mr Singh” had not been said, no objection in this respect could have been taken to the balance of the sentence.

12. [41]

    The summing up must be read as a whole. When addressing a complaint as to a jury direction, it is insufficient to point to sentences – or, as in this case, parts of a sentence – in isolation. The position was recently described by Porter J, with the agreement of Wood and Pearce JJ, in Lin v Tasmania [2015] TASCCA 13 at [108]:

13. [42]

    When the summing up is read as a whole, we are not satisfied that the jury would have approached their task of assessing the coincidence evidence as bolstering the identification evidence of Mr Singh, for these reasons.

14. [43]

    First, to do so would have been contrary to the direction on coincidence evidence earlier given by the trial judge, in relation to which no complaint was made on appeal. It is to be recalled that that direction was also provided to the jury in written form (MFI 5), and it is quite plain that the jury would have had greater regard to the written document, rather than what they remembered of the oral direction, when assessing the Crown case. As Simpson J said of the effect of a written direction in Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]:

15. [44]

    Secondly, there were the Crown submissions themselves, reflecting as they did the way in which the Crown had cast its case before the jury. They reinforced the general thrust of the summing up, which was that coincidence reasoning could be used to support the conclusion of guilt, in addition to Mr Singh’s evidence.

16. [45]

    Thirdly, the balance of the summing up correctly reiterated that the jury was invited to use coincidence reasoning to support the ultimate conclusion of guilt.

17. [46]

    Fourthly, we have regard to the absence of complaint at the time by trial counsel, which supports the conclusion that it was not thought that the words had a material impact upon the jury’s appreciation of its task. It is well settled that “a failure to raise objections at the close of the judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy”: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; Tekely v R; Nagle v R [2007] NSWCCA 75 at [89]; ARS v R [2011] NSWCCA 266 at [148]; Petroulias v R [2014] NSWCCA 108 at [98].

18. [47]

    Fifthly, the failure to object may reflect the fact that although “corroborate” is laden with connotation to a criminal lawyer, it is a word which would not be understood by a lay jury in the same way. The meaning that it bore depends on the audience (a jury) and the issues which the jury was to determine. As noted above, there was no occasion for the jury to engage in staged determination of issues of fact involving corroboration in any technical sense.

19. [48]

    Rule 4 of the Criminal Appeal Rules applies to this ground, no objection having been made at the trial. It is trite that r 4 is not “some mere technicality that may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCA 373 at [10]. The Court added at [13]:

20. [49]

    We are not persuaded that the impugned direction would have deflected the jury from the task which had repeatedly been given to them, and which was reiterated to them shortly thereafter by the trial judge. Still less is it established that there has been a departure from the essential requirements of the law that goes to the root of the proceedings, such as to warrant a conviction being set aside on a point not taken at trial.

21. [50]

    For those reasons, the requisite leave to appeal required by r 4 should be refused.

Orders

1. [51]

   The Court’s orders are: