WILCOX v REGINA

McCLELLAN CJ at CL: I agree with Barr AJ.

HALL J: I agree with Barr AJ.

BARR AJ: The appellant, David Richard Wilcox, appeals against convictions entered following his trial by a jury in the District Court of New South Wales sitting at Newcastle. He also seeks leave to appeal against the resulting sentences.

The offences found to have been committed by the appellant may be summarised as follows. At about 11:55pm on 7 October 2004 two men wearing balaclavas and long dark clothing entered the Tahmoor Inn as it was about to close. One man was large and carried a sawn-off rifle. The other was of slight build and carried a pistol. There were four staff members present and the two robbers ordered them to lie on the floor on their stomachs. They obeyed and the robbers tied their thumbs together with cable ties. As they did this, the smaller man said, "I learnt to do this in the war". He demanded the keys to the safe and they were produced. He took the manager, Mr Maddrell, into the office, gained access to the safe and stole money. While that was going on the larger man stood guard over the other staff members. During the robbery a taxi driver arrived to collect one of the staff members. The larger man pointed the shortened rifle at him and told him to do the right thing so that no one would get hurt. He tied the driver's thumbs behind his back by the use of the cable ties. He told the driver to get onto the floor but the driver, who was a large man, asked to be allowed to sit instead, so the robber obtained a milk crate for the taxi driver to sit on. Having emptied the safe, the smaller robber took the manager to the poker machines, intending to take money from them as well, but the larger man said that they were running out of time. The smaller man struck Mr Maddrell across the bridge of his nose with the pistol and took him back to the presence of the other disabled staff members. He tore the telephone from the wall. After warning them not to move for ten minutes the two robbers ran away. They took $27,982.50.

At about 11:00pm on 28 October 2004 two men entered the Dungog RSL Club. Both wore dark balaclavas and dark full length clothing. One was a larger man and carried a shortened rifle. The other was of smaller build and carried a pistol. Two persons were present in the club, one a staff member and the other a patron. The robbers threatened them with the firearms. The larger man tied the patron's thumbs together behind her back, using cable ties. The smaller man ordered the staff member to produce the keys to the office and the safes, and he did so. So the safes were opened and the contents removed. When that had been done the smaller man tied the staff member's thumbs together behind his back, and as he did so said that that was a little trick he had learnt in the forces. He tore the telephone from the wall. The two ordered their prisoners not to move for ten minutes and ran away. The proceeds of the robbery amounted to $33,332.93.

It was the Crown case that the larger of the two robbers, the one with the sawn-off rifle, was the appellant and that the smaller man, the one with the pistol, was a colleague of his, Ric Anson. Anson was found dead on 11 January 2005. The circumstances of his death are not material to this appeal.

The Crown presented an indictment containing two charges that may be summarised thus:

Before the trial, the Crown served on the defence a notice under s 98 Evidence Act 1995 of its intention to adduce coincidence evidence in accordance with s 98(1). Relevantly, the notice contained these passages: ... 2. The Prosecution will assert (David Richard Wilcox) was involved in two robberies, firstly, on 7 October 2004 at the Tahmoor Inn and secondly, on 28 October 2004 at the Dungog Memorial RSL club. The Crown will seek to have evidence of each robbery admitted as evidence in relation to the other. 3. The Crown will submit to the Court the evidence in support of the asserted coincidence evidence shows of the perpetrators of both robberies: In each instance two men entered premises in a small country town with few staff and no sophisticated security devices at closing time on a Thursday night. In each instance the two men were of like description, that is, one large man, one slimmer man. In each instance the slimmer man carried a pistol and the large man a shortened rifle. The two men wore dark balaclavas. They wore full length dark clothing. The two men used cable ties to secure the arms of the victims behind their backs by the thumbs. Further, the slimmer man was heard to say in both cases in conjunction with the securing of victims, words to the effect of "I learnt to do this in the war/forces" In both cases the slimmer man sought access by means of the manager/bar manager (keyholder) to the safes, tills and poker machines. In both cases before leaving the slimmer man tore the telephone from the wall. In both cases before leaving the victims were directed not to move for a stipulated period. 4. The Crown will submit to Court the evidence illustrates a pattern of conduct by the person which establishes a distinctive system, pattern and/or modus operandi. ...

The defence challenged the Crown's reliance on coincidence evidence and moved the court to sever the counts in the indictment. On 15 May 2007, Coolahan DCJ gave judgment, allowing the Crown to adduce coincidence evidence and refusing the application for separate trials.

The coincidence rule is set out in s 98 Evidence Act as follows: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

Relevantly s 101 Evidence Act provides: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

The trial judge expressed himself satisfied that the evidence passed the Evidence Act test in these words: ...there is, in my view, a striking similarity in the way in which both offences were committed. Further, there is evidence to link the accused firmly to the commission of the Tahmoor Inn robbery; I have already outlined that evidence. Because of the striking similarities, I am of the view that the evidence is properly admissible as coincidence evidence in relation to both counts. In deciding to admit the evidence, I have taken into account section 101(2) of the Act. In my view, the probative value of the evidence substantially outweighs any prejudicial effect that it may have upon the accused.

In this court the appellant represented himself in the conviction appeal. He presented his submissions in writing and relied for the most part on arguments that had been put by his counsel before the trial judge.

There is one ground of appeal, the effect of which is that the admission of coincidence evidence occasioned a miscarriage of justice.

Before dealing with the argument put on appeal, it is necessary to say more about the evidence. The Crown case on both robberies was circumstantial.

Evidence was adduced of a telephone conversation or conversations that took place between the appellant and his partner, Ms Mandy Sutton, on 6 May 2006, which ran as follows. DW means the appellant and Ms Sutton: DW - DNA is inconclusive... you know what I mean... (IND) .. some other bloke wearing me clothes..... you know.. I though...IND.. all they are hoping on you hanging on you....they want you what happened at the you know... they want you saying it was me there. So it all hinges 'round...(IND) TR70 DW - if you say that you are scattered out... you can't remember what you've said DW - about whether what if said or whatever MS - I'm not saying anybody said anything or whatever DW - Hey? MS - I'm not saying that I'd say anything or whatever or anybody said anything. DW - Well what they ... (IND) MS - I reck' I reckon... I reckon Rick"s missus that he was with, is, is the person that's fucken said shit to 'em, that she's told them everything. 'Cause they said, oh we've got like It, like someone who is involved in like sort of your situation in which would be like her probably. If they threatened her or something or offered her money or something, she fucken take it... DW... it"s not work thinking about it...they are just coming to the end of the fucken.. they are just throw everything they can.... TR47 DW this is the their last straw... last straw.. he said to me today... he goes to me today... we put a IND out... someone rang through and said it was you, and said it was me... I said, oh yeah...I said, so fucken any cunt can ring up and say it was me... Could be dirty on me...could be fucken whatever.. he was like... he was like I wouldn't even fucken... mumble.. I want to formally interview ya, want to put you in a line up, we want to DNA test ya and it I was like..... he sort of wanted to do it then... They'll probably DNA me... right... that'll take a little while to come back you know what I mean, TR 48 DW - And we'll just say... listen.. Me and me missus split up,, fucken I took all me clothes to Ricks. He borrowed me clothes and he had a mate staing saying with him. He was a big fucken Islander.... the cunt wore my clothes. I'll say I left all my clothes... you know what I mean... someone wore me clothes.... MS... mmmm MS.. the other day.. he goes, we've got... we've all we need to can him... you could just be the icing on the cake, that would be sweet [laughing]. (14 Enhanced) DW.. They need you just to keep the investigation open.... MS .. Hey? DW.. They need you just to keep the investigation open.... TR 52 DW... thing is.. we know that you and Rick were running around doing stick ups together. We just want to know if you did the Dungog... fucken... MS... was he Aussie... DW... mmm.... IND.. MUMBLES. MS was that the other week? DW... Today MS... boy's been machine gunned DW... mumbles... buy a Gun..... you know what I mean.... It goes like this....yeah, I've got some legal advice... I'll just tell them to charge me or let me go.. if they don't' charge me then they'll let me go.. What I'll say, is one thing me barrister told me to ask me was, how do you propose to do a line up when um.. apparently the people were wearing balaclava's as stated in the paper. So you'll put a balaclava on.. line me up wearing a balaclava on eh?

Although the conversation concentrated on the Dungog robbery it dealt also with cable ties and so was relevant to the Tahmoor robbery. The appellant gave evidence at trial and was asked about the conversation. He agreed that the "Rick" referred to was Anson. He said that he was formulating a lie to tell the police in case they obtained a sample of his DNA and falsely accused him.

The Crown called Ms Sutton and asked her about induced interviews she had had with investigating police officers on 2 and 15 June 2006. Ms Sutton agreed that on 9 February 2007 she had pleaded guilty to a charge of being an accessory after the fact of assault with intent to rob with a dangerous weapon. That offence took place at Smiths Lakes. She agreed that at her sentence hearing she had signed an undertaking to give evidence in the prosecution of the appellant on the Tahmoor and Dungog matters. Her evidence was to be in accordance with the answers she gave in the induced interviews. She accepted that she had received a corresponding benefit by reduction of her sentence.

It was the Crown case that Ms Sutton had told the truth in the answers she had given in the interviews. The transcript of what was said did not go into evidence but the Crown obtained leave to cross-examine Ms Sutton and put the text to her. There were these questions and answers. The references to "David" were to the appellant and those to "Carol" were to Carol Puru, the appellant's cousin: Q. So, Carol said that. "She said, 'How - how about that taxi driver' and something about having to get it''-- A. Well, really, Carol couldn't have said it because she's just gotten out of gaol in Queensland, so-- Q. How about you just listen to what I'm reading? Your answer, "She said 'How - how about that taxi driver' and something about having to get it for and just sit on because he was so fat or something." "Carol said that?" Answer, "Yeah." Question, "What did Dave say?" Answer, "He was just laughing." Question, "he was just laughing?" "Yeah." Over the page, question 382, "Okay, so the next thing in my notes, they laugh about how scared the people were. Dave told me one job where a taxi driver turned up and was tooting his horn and then he came, he was scared, Dave was laughing, is that correct?" No reply. Question, "That's what you - that's the one, that's the one you just told me about?" Answer, "Yeah." Now, that's what you said, didn't you, on 2 June? A. Well -- Q. I've read that correctly? A.-I just read that last night, that I'd said that. ... Q. On 2 May 2006 did you say this to Detective Revette, in the notebook that your initials appear on? "Dave told me one job where a taxi driver turned up and was tooting his horn, then he came in, he was scared. Dave was laughing"? That's what you said? A. Yeah because he just told me that outside. ... Q. Your answer, "They" and remember, mentioned shortly David and Carol, "They said at one job that they did they were in the middle of it and a taxi was beeping out the front or something. He came to pick someone up and then the taxi driver must have come inside." Question, "Right." Your answer continues, "And they told him to get down on the floor and he wouldn't and couldn't' because apparently he was large." Question, "Mm." Answer, "So they kicked in a crate and made him sit on the crate." Question, "okay, did they tell you anything else about that robbery?" Answer, "No audible reply." Question, "But more importantly what did David say about it?" and you knew he was speaking about David Wilcox; that's clear, isn't it? You're not disputing that? Correct? A. Oh, correct. Q. Your answer, "Just that I think they got - he", referring to David, "said"-- A. Does it say "David" or does it say "he"? Q. All right, I'll read the question. "But more importantly what David said about it"? A. Was that the question? Q. Yeah, that was the question. Your answer, "Just that I think they got, he just said that they got about ten to fifteen grand each"? A. So my answer was "he"? it wasn't "David". Q. Oh I see. You were confused, were'nt you? A. Yes, of course I was. ... Q. Next question, toughy, "Okay." Answer, "That was." Next question, another tough one, "Yeah". Answer, "It was really just said about - about the taxi driver." Right? You go on there and you surmise that Puru may have been involved, then you were asked this, "Do you know which part of the State that job was in?" Answer, "New South Wales." Question, "But any idea where in New South Wales?" Answer, "I think it was Dungog, wasn't it or I think it was that one at Dungog"? A. Because when my house got raided, they took me out to Minmi pub and sat me there and said, "Do you know anything about the robberies at Dungog" and this. They're the ones who told me. Q. Oh, I see, so the police put in your head Dungog? A. Yes, they did. ... Q. You were asked about that in the first interview you did on 2 June 2006, weren't you? A. (No verbal reply) Q. About cable ties? A. Correct. Q. Right? Now, you told me either, didn't you, before I started to ask you about what you said in these interviews, that you spoke to the accused about cable ties some time after the police executed the search warrant at your premises, correct? A. Correct. Q. No problem with that, is that right? A. Mm-hmm. Q. And it was on that occasion that he told you that they were used for tying up garbage bags? A. Mm-hmm. Q. Right. Now, when you spoke to the police on 2 June, 392, you were asked this, question, "Cause, cause I asked you, you said you asked him, referring to David, what they were for, and he said, 'For tying people up'"? A. Because that's what the police had told me at Minmi pub. ... Q. ...Question, "You said to me he told you that they were for tying people up because", which of course is what you had at answer on the previous page. Answer, "Yes", or yeah. Question, "It was quicker and you put your hands together behind your back when you said that", you demonstrated it on the tape didn't you? A. I can't remember, I was stoned. ... Q. Bottom of page 21, question 183, "Did he, referring to the accused, tell you any other way in which they would control people on jobs?" Answer, "Putting guns to their heads", "Okay so pointing guns at them. Anything else to restrain people?" Your answer, "Tie, tie their hands behind their backs and Rick would say that he learnt that, that he used to be in the merchant marines". Question, "Right". Answer, "Something". Question, "okay". Your answer, "And they used, like, plastic cable ties", "All right how do you know that?" Answer, "Because the - he got me to go and get some, buy some once, and I asked him, 'What?'" Question, "All right". Answer, "What he was buying". Question, "Yeah?" Your answer, "Them and also in a raid they, they had down, when they raided my house at Minmi, they were looking for cable ties and I asked him why", referring to David, "And he, he said, 'That that's what they used to use to restrain their hands''", "Okay so hence the cable ties. Who asked you to but the cable ties?" Answer, "David", "David did?" "Yeah". A. And garbage bags too. Q. You went on again-- A. And chicken and bread rolls and beef and all the rest of it, what we used to get at the supermarket but it's not a big-- Q. Well did you tie that up with cable ties as well? A. No, but if was, like, going to get your groceries, like, what's the big deal? Q. In the same interview a few questions further on, page 23, question, "Is this when you were living at Minmi?" Your answer, "yeah". Question, "And the police executed a search warrant?" Answer, "yeah", or yes. Question, "You looked at that search warrant and read?" Answer, "What, yeah". Question, "and then did you ask David referring to Mr Wilcox?" Answer, "Yeah". Question, "What did you ask him?" Answer, "Why on earth would they have that for, like, why, what's, you know, that seems strange they'd found them". Question, "Mm-hmm". Answer, "they found cable ties, search in". Question, "What, what?" Answer, "That's what they used to restrain people's hands with". Question, "Okay". Answer, "And he said about Ric used to tell them that he was in the merchant marines and this is how he learnt to restrain people that way". That's what you said there, correct? A. (No verbal reply) Q. That's what you told the police isn't it? A. The police told me.

Before the jury Ms Sutton explained a way her answers in two not entirely consistent ways. First, she said that she had not understood what was being said on the occasion of her answer because she was under the influence of heroin. Secondly, she had told lies at the suggestion of investigating police officers. The thrust of her evidence was that no answer she had given about the appellant was true. It thus appeared that her evidence before the jury was entirely opposed to the undertaking she had given to her sentencing court.

The jury were appropriately directed about her evidence in these terms: You must decide, in the case of such a conflict, whether you accept the evidence given in the trial or what the witness said in the earlier statements. On the other hand, it may be that in view of the conflicts you feel that you should reject the evidence of Ms Sutton altogether, that is to say that you may not be able to be satisfied one way or the other as to whether she was telling the truth here or in the statements to police. In any event, in respect of the earlier statements, I must warn you that such evidence may be unreliable. It may be unreliable firstly because it is hearsay evidence. She says she was relating to the police what she says someone else told her, or what she said the accused told her. The law recognises that hearsay evidence may be unreliable. Things tend to get lost in the translation and, of course, in any event, the accused was not present during the conversations that Ms Sutton had with the police in those interviews. It may also be unreliable members of the jury because as you know, Miss Sutton obtained a benefit from making those statements. She obtained a reduction on her sentence for the offence that she was charged with and so therefore she had an incentive. Mr Stewart would say she told the police that she thought they wanted to know so that she could obtain that benefit. And she said it kept her out of gaol. So on that basis also, members of the jury, that earlier evidence as contained in her statements, may be unreliable. Whether it is or not is entirely a matter for you. All my task is to do is to alert you to the possibility that those statements may be unreliable and why.

Cable ties like those used in the Tahmoor and Dungog robberies were found amount Ms Sutton's toiletries. The appellant was residing with her at material times.

There was evidence showing that the appellant and Anson associated with each other. It derived not only from the telephone conversation between the appellant and Sutton extracted above. They resided together at times.

After Anson's death his house was searched. A rifle was found there, bearing the appellant's palm and fingerprints.

A DNA profile developed from a sample taken from one of two balaclavas found there matched the appellant's DNA profile.

A DNA profile developed from a sample taken from an unused cable tie found at the Tahmoor Inn matched the appellant's DNA profile.

The appellant's size and build were similar to the size and build of the larger man.

The occupants of the Tahmoor Inn gave evidence in which they described the appearance of the two attackers and the things they said and did. I shall deal with it as I deal with the appellant's submissions.

Some of the things said by the appellant and Ms Sutton in the telephone conversation extracted above were relevant to the Dungog robbery.

Some of the words Ms Sutton attributed to the appellant in her interview with the investigating police officers were relevant to the Dungog robbery.

Mr Tracey, the bar manager at the Dungog RSL Club, was present when the robbery took place. He said that three or four weeks before the robbery he had seen two men in the club looking at the ceiling, as though looking for cameras. He identified one of the men as the appellant by choosing his photograph from a portfolio of 20 photographs.

At 2:30pm on the day of the robbery, the appellant and Anson were seen together in a car at Edgeworth, about 80kms from Dungog. It was a red Holden Commodore sedan with a spoiler. Anson owned a car of that description.

Between 9:30 and 10:00pm a call was made from Anson's phone to the club asking what time the club closed.

DNA matching Anson's profile was recovered from a soft-drink bottle found near the front door of the club. The bottle was of a type not sold by the club.

A box stolen in the robbery was found the next morning about 1 kilometre from Anson's house.

The appellant's size and build were similar to the size and build of the larger man.

Those present at the time of the robbery described the attackers, their appearance, the things they did and the things they said.

It was the Crown case that the modus operandi employed in the robberies was identical was because: