R v Ceissman [2006] ACTSC 50 (16 March 2006)

Last Updated: 9 February 2007

R v STEVEN JACK CEISSMAN [2006] ACTSC 50 (16 March 2006)

CRIMINAL LAW - Procedure - severance of multiple counts on Indictment - tendency evidence - coincidence evidence.

Evidence Act 1995 (Cth)

R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700

Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461

R v Phillips [2006] HCA 4; (2006) 80 ALJR 537

EX TEMPORE JUDGMENT

No SCC 180 of 2004

No SCC 40, 100 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 16 March 2006IN THE SUPREME COURT OF THE ) No SCC 180 of 2004

) No SCC 40 and 100 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STEVEN JACK CEISSMAN

Applicant

AND: THE QUEEN

Respondent

ORDER

Judge: Connolly J

Date: 16 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The indictment concerning the applicant be severed, and the various matters be dealt with separately.

2. The respondent be prohibited from adducing coincidence evidence.

1. 1. This is an application to sever counts on an indictment for a number of property offences. I am satisfied that the orders sought in the notice of motion should be made and that these matters should be separated and go to trial separately.

2. The law in relation to tendency and coincidence evidence does set a high bar for a prosecutor to meet and that is properly so. Because the nature of human reasoning is that the strongest reason to persuade a lay person that somebody did it would be if you could tell them that Smith who is charged with this burglary has committed 40 similar burglaries in the past and got out of jail last week. And that would be highly prejudicial. The jury would find that probative, but it would be so massively prejudicial it obviously would not be admitted.

3. In order to bring disparate offences together it is necessary to demonstrate under the common law the striking nature of the similarity. Now we do not apply the pure common law here because we operate under the Evidence Act 1995 (Cth). The case of R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700, a five judge decision of the New South Wales Court of Appeal in 2003, is persuasive authority for me because it is a five judge New South Wales Court of Appeal decision applying the New South Wales Evidence Act, which is similar, identical in relevant forms, to the test that I have to apply. And it seems to me, with respect, it well sets out the way the common law, as laid down by the High Court in Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461 and now reasserted in R v Phillips [2006] HCA 4; (2006) 80 ALJR 537, interacts with the Evidence Act provisions.

4. In Ellis there had been a series of breakings into commercial premises in a reasonably discrete geographical area of country New South Wales. In that case tendency and coincidence evidence was permitted to allow a number of counts to go before a jury. The thing about Ellis is that on the facts there the method of entry into the commercial premises was a strikingly unusual one.

5. The evidence of the investigating police officer was that having been a quite experienced New South Wales Police Officer, in fact being a police officer responsible for policing break and enters in Sydney for six years, he had never seen it before and he had never seen it since, involved the removal of a whole pane of glass by taking out the rubber and the skirting material. There was also evidence from an aluminium glass company proprietor to say that whoever had committed these offences must have had some knowledge of the industry and had to use a particular suction tool to safely lift out the panes of glass.

6. The evidence here from an experienced Federal Police officer and prior to that a New South Wales Police Officer is that, as one perhaps may expect from the photographs, there is really nothing particularly unusual about gaining entry into commercial premises by the most obvious and direct route. That is to say, by seeking to break a small hole near a door handle, putting your hand through and trying to open the handle. If that does not work because it is locked, you make a bigger hole and you crawl through.

7. If anybody, and perhaps not surprisingly it was elicited in cross-examination from Mr Thomas and the officer conceded, were silly enough to leave a valuable item in plain view and close, somebody might not unreasonably smash a small hole, stick their hand through, grab the item and proceed. And that seems to have been what happened in relation to the EFTPOS terminals.

8. The material in relation to the mode of entry here, it seems to me, falls well short of being sufficient to establish a coincidence or tendency evidence. In relation to the manipulation of the EFTPOS terminals, it was helpful to hear the evidence from the investigating police officer because it did rather reinforce what I thought might have been the case. And that is although these are small hand held computer devices they are in widespread use. And in fact one could probably take judicial notice of that.

9. But the significant evidence was that the method of operation would be known to anyone who has worked, even on a part-time basis, in a retail store. Significantly, we learned today that stores are provided with a default PIN code and any retail operator who has to do a refund needs to use a PIN code, whether it be the store's PIN code or the default PIN code to effect a refund.

10. It would follow from that, that anyone who has worked in a retail store would likely know that there is a default PIN code for these machines. There is also evidence that certain combinations are frequently used as default PIN codes for a wide range of electronic items, not just these but mobile phones.

11. It seems to me that there is nothing unusual in relation to the nature of the crime. The evidence was that it is not infrequent that this type of offence is a problem for banks. And banks are aware that this sort of offence is going on. It may well be that somebody in a pub or - I am not sure what Mr Ceissman's history was at the time, or somebody in the Remand Centre has said; "Hey, fellows, here's an easy way to make money. All you need is a card and an EFTPOS machine and you can send money down the line". There is nothing sophisticated, there is nothing unusual. It is a common enough crime.

12. It seems to me that it falls short of the test for coincidence or tendency. Even if it was marginally at the test, it seems to me that the risk of the material being so prejudicial is such that I would err and I would be likely to be told by the Court of Appeal that I had erred if I were to allow it to go to trial. That would not serve the community's interest well, nor would it serve the interests of the prosecution or police authorities, because the likely outcome would be an overturning of any verdicts and retrials.

13. It seems to me that the prosecution has what could be described as a strong prosecution case in relation to a number of these matters because there is some DNA material, there is some quite strong linkage in some of the cases. And they ought to go before juries, and we will see what happens. But to put that strong material before the same jury that is dealing with the more tenuous coincidental evidence would, it seems to me, significantly prejudice Mr Ceissman's ability to get a fair trial on those counts. It would necessitate such a complex range of jury warnings that it seems to me the risk of prejudice is such that an appellate court would intervene.

14. I therefore make the orders sought in the notice of motion which is for these matters to be severed and proceed by way of separate trials. Understanding that, and I am sure that is as you understood the notice of motion, Mr Thomas, that there will be multiple counts in relation to each alleged incident. So in relation to the nature of this offence there will be a charge of break and there will be a charge then in relation to the manipulation of the funds. But effectively there will be separate trials in relation to 11 burglaries.

15. In relation to the three matters at Yarralumla, I would not allow them to go together because there are differences in relation to the entry point. In some cases it is an easy entry point and in others there is a big hole. There are big holes and indifferent sizes, there is nothing there. The one that I did think hard about allowing to go together would be the two at Alice's Book Shop, one where it is successful and one where it is unsuccessful.

16. The difficulty with that is that the strong evidence in relation to an attempt in the second count, because that is the one that has the DNA. There is little other than coincidence in relation to the first count. So the prejudicial effect of the second on the first is very significant. And of course if somebody told Mr Ceissman in a pub; "Mate, here is an easy go, Alice's Book Shop. No PIN, easy", assuming a jury finds that he did it due to the DNA evidence that is an entirely consistent basis for him to be guilty of the second but not the first.

17. Therefore even in that case I think the risk of prejudice is such that it would not achieve a fair trial. So there ought to be 11 counts. I would suggest that the Crown exercise a bit of discretion in the way they order those. And it would seem to me to be a sensible thing to go to a jury with the stronger cases first, and we will see what happens.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 16 March 2006

Counsel for the Applicant : Mr R Thomas

Solicitor for the Applicant: Daryl Perkins Solicitors

Counsel for the Respondent: Mr J Lundy

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 16 March 2006

Date of judgment: 16 March 2006