LAW OF EVIDENCE. Alex Kuklik. LEC 2015/2016 Summer

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1 LAW OF EVIDENCE Alex Kuklik LEC 2015/2016 Summer

2 Alexander Kuklik 12 Wentworth Selborne Chambers (02)

3 Admissibility tendency and coincidence evidence

4

5 Admissibility of evidence - tendency and coincidence KOP Ch10 EA ss R v AE [2008] NSWCCA 52 (KOP [10.60]) RHB v The Queen [2011] VSCA 295 (KOP [10.70]) DSJ v The Queen; NS v The Queen [2012] NSWCCA 9 (KOP [10.80]) JacaraPty Ltd v Perpetual Trustees WAS Ltd (2000) 106 FCR 51 (KOP [10.100]) Velkoski v The Queen [2014] VSCA 121 Saoud v The Queen [2014] NSWSCCA 136

6 What is this type of evidence? Conduct of a party. Proves tendency to act in a particular way. Proves improbability of 2 or more events.

7 Dangers this type of evidence: Reasoning prejudice: Over-estimating the probative value. Moral prejudice:. Jury fails to give the accused the benefit of reasonable doubt Outraged by conduct and desire to punish. Jury confusion and misuse of evidence.

8 Dangers this type of evidence: Psychological studies of decision-making show that where there are gaps in available information decision-makers fill them with reference to preconceptions and stereotypes. (Fiske and Taylor, Social Cognition, 2 nd ed, 1991) Bostockstudy -jurors more likely to convict with recent similar conviction Can the risks associated (with the evidence be cured by judicial direction?

9 Differences between tendency and coincidence evidence Care must be taken to distinguish tendency evidence from coincidence evidence. While the evidence that constitutes tendency evidence and coincidence evidence may seem similar, the type of inferential reasoning used by the jury differs for each type of evidence: In relation to coincidence evidence, the jury relies on the improbability of events occurring other than in the way suggested to infer the fact in issue. In relation to tendency evidence, the jury relies on the fact that a person has a tendency to act in a certain way to infer the fact in issue.

10 Australian position regarding admissibility: UEL jurisdictions ss97, 98, 101 Common law test in Pfennig v The Queen (1994) 182 CLR 462 (KOP [10.30])

11 Pfennig v The Queen (1994) 182 CLR 462 (KOP [10.30]) -Common law test The accused was charged with the murder of a 10 year old boy who had disappeared from a river on a reserve. Despite a search, the body of the boy was never found. But his clothes and bicycle were found at another reserve nearby, along the river. The prosecution case was that the defendant had abducted, sexually assaulted and murdered the boy. This argument rested on the exclusion of all other possibilities (drowning, running away). The case was that he and his white van were seen at the reserve and that the boy was not seen after this, but the van left the reserve. It was latter seen at the other reserve. The day before, Pfennig had asked for directions to a reserve at which he could swim nude (the second one), and he had invited two children to go swimming with him (they refused).

12 Pfennig v The Queen (1994) 182 CLR 462 (KOP [10.30]) -Common law test There was evidence that he had spoken to the boy on the day in question and had lent him a knife. There was evidence from a boy H that Pfennig had previously tricked H, then a young boy into his van and sexually assaulted him in Pfennig had pleaded guilty to this. This evidence was the subject of the appeal. Crucial to the prosecution s case was the associated admission : the defendant was married and had spoken to his wife about the offence against H. This extended back to the time that the 10 year old boy disappeared.

13 Pfennig v The Queen (1994) 182 CLR 462 (KOP [10.30]) -Common law test Mason CJ, Dean, Dawson JJ Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is arational view of the evidence that is consistent with the innocence of the accused.here "rational" must be taken to mean "reasonable and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. at [60] See also [62]

14 Pfennig v The Queen (1994) 182 CLR 462 (KOP [10.30]) -Common law test Mason CJ, Dean, Dawson JJ The majority held that the test was essentially: the evidence must be so probative that it bears no reasonable explanation other than inculpation of the accused in the offence charged. McHugh J No reasonable explanation test too stringent and doesn t involve any weighing. Should be admitted only if the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

15 Hoch v The Queen (1988) 165 CLR 293 (KOP [10.40]) Hoch charged with 3 counts of sexual assault of boys. Joint trial. An application for separate trials was refused. The prosecution used the evidence of each complainant to prove that it was objectively improbable that a person other than the accused committed the acts in question. Applied common law. Is there a rational view of the evidence that is inconsistent with the guilt of the accused? The basis for admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. [3]

16 Hoch v The Queen (1988) 165 CLR 293 (KOP [10.40]) For similar fact evidence to be admitted, it must possess a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged [3] Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. [4] Similar fact evidence is admissible if the similar facts are not in dispute, and if evidence of the similar facts renders it objectively improbable that a person other than the accused committed the act in question or that the relevant act was unintended. [5]

17 Hoch v The Queen (1988) 165 CLR 293 (KOP [10.40]) Similar fact evidence serves two functions [10]: To corroborate or confirm the veracity of the evidence given by other complainants. To serve as evidence of the happening of the event or events in issue. In cases where there is a possibility of joint concoction, there is another explanation of the evidence [10] The admissibility of similar fact evidence depends on that evidence having a quality that is not explicable on the basis of concoction [11]

18 Hoch v The Queen (1988) 165 CLR 293 (KOP [10.40]) Here, it is clear from the evidence that the complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. Therefore the evidence of the complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence. There was a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials. NOW.

19 94 Application (1)This Part does notapply to evidence that relates only to the credibility of a witness. (2) This Part does not apply so far as a proceeding relates to bail or sentencing. (3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person, or (b) a tendency that a person has or had, if that character, reputation, conduct or tendency is a fact in issue.

20 94 Application The operation of s 94 means that if the evidence is admitted for a purpose described in s 94, (i.e. only credibility;character, reputation or conduct, where that is in issue) Part 3.6 does notapply to such evidence. Such evidence can be adduced freely. Its admission is still governed by other sections however. For example, if s 94(1) applies, the evidence is still governed by Part 3.7 (See Odgersat [ ]). Section 94 operates so as to remove the operation of the tendency and coincidence rules. See: Clark v The Queen [2008] NSWCCA 122at [108].

21 95 -Use of evidence for other purposes (1)Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2)Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

22 96 -Failure to act A reference in this Part to doing an act includes a reference to failing to do that act.

23 97 -The tendency rule (1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person s character or otherwise) to act in a particular way, or to have a particular state of mind 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.

24 97 -The tendency rule (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note : The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

25 97 -The tendency rule Person includes a corporation: Trifunovski(No 4) [2011] FCA 271 Evidence is tendency evidence if admitted to prove a tendency. The same evidence, admitted to prove something else, is not tendency evidence. To decide whether evidence is caught by the rule, you need to decide what purpose or use is sought to be made of the evidence. The question is really whether some propensity is what is being sought to be proved, or whether you are asking a jury to reason from past conduct or conforming behaviour in the instant case.

26 97 -The tendency rule Tendency evidence does not have to establish a tendency to commit the crime; a tendency to act in a manner relevant to the crime, such as use of violence, is sufficient to be described as tendency evidence. ls the evidence relevant to a fact in issue via propensity -does the evidence establish the propensity of the relevant person to act in a particular way? Is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question? If evidence is to be admitted, it will be necessary to demonstrate that the evidence is relevant to a fact in issue by a process of reasoning which does involve the drawing of an inference from evidence of tendency to conforming behaviour: JacaraPty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51

27 Significant probative value More than mere relevance but something less than substantial degree of relevance: R v Lockyer(1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim 356 Significant defined as important or of consequence : R v Lockyer (1996) 89 A Crim R 457. The 'significance' of the probative value of evidence depends on the nature of the fact in issue to which it is relevant, and the importance of the evidence in establishing that fact: R v Lock(1997) 91 A Crim 356

28 Significant probative value DSJ v R; NS v R [2012] NSWCCA 9 now the leading case in this area. Discussed below. Relevant matters -"will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred": JacaraLtd v Perpetual Trustees WA Ltd (2000) 106 FCR 51.

29 Significant probative value The calculation of probative value will normally turn on factors like: Number of occasions relied upon: RHB v The Queen [2011] VSCA 295. Time gap between occasions. Degree of specificity of conduct / alleged tendency. Degree of similarity between different occasions. If it is possible to establish a pattern of conduct or modus operandi in the similar circumstances: Fletcher. The "signature" nature of a modus operandiin the commission of offences can be one of the most powerful examples of tendency and coincidence evidence: R v Ellis [2003] NSWCCA 319 Whether the tendency evidence is disputed: R v AE [2008] NSWCCA 52

30 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.

31 98 -The coincidence rule (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note : Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

32 98 -The coincidence rule lf you: Rely on contended similarities in 2 or more events; To prove a person did an act or had a state of mind; and By reasoning that it is improbable that the events occurred coincidentally, then you've engaged in coincidence reasoning, and you need to satisfy the notice and probative value requirements. The level of similarity between the two or more events / circumstances in which they occurred is something that the court will consider when looking at the probative value of the evidence. Ultimately, a lack of similarity would likely result in inadmissibility in any case because it would mean the evidence did not have sufficient probative value.

33 98 -The coincidence rule At common law, evidence of other criminal conduct of an accused was admissible if the objective improbability of its having an innocent explanation was such that there was no reasonable view of it other than as supporting an inference that the accused was guilty of the offence charged: Pfennig v R [1995] HCA 7. ln that case it was held that "striking similarity", "underlying unity" and such other descriptions used to explain relevant similar facts were not essential to the admission of such evidence, although usually the evidence would lack the requisite probative force if it did not possess those characteristics. ln Zhangthe process under the EA was described as: The judge is satisfied that 2 or more events ore substantially and relevantly similar and/or that the circumstances in which they are alleged to have occurred are substantially similar; and The evidence would, either by itself or having regard to other evidence, have significant probative value.

34 98 -The coincidence rule Examples of coincidence reasoning: Three young girls killed in strikingly similar circumstances. It was improbable that they each had different killers. lf D killed two girls, you can employ coincidence reasoning to prove he killed the third. Striking similarities between two incidents in which D was involved (the first involving some uncertainty as to what occurred, the second being uncertain only as to D's mental state) may permit inferences as to what happened during the first and D's state of mind in the second. Similarities in the accounts of two witnesses re D's conduct may make it improbable that the witnesses are lying (in absence of concoction) (though relevant to credibility, such evidence is not relevant only because it relates to credibility per s 94(1)).

35 98 -The coincidence rule Examples of coincidence reasoning: R v Smith (1915) 1 Cr App R 229 ("the brides in the bath case") The defendant was accused of murdering his wife, Bessie Munday, who was found dead at home in her bath. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given that their deaths occurrednot longafter entering marriage and financial arrangementsunder whichthe accused would stand to benefit if they died. Smith s appeal was unsuccessful. He was convicted and hanged on 13 August 1916.

36 98 -The coincidence rule Examples of coincidence reasoning: R v Smith (1915) 1 Cr App R 229 ("the brides in the bath case") Lord Maugham concluded, "No reasonable man could believe it possible that Smith had successively married three women, persuaded them to make wills in his favour, bought three suitable baths, placed them in rooms which could not be locked, taken each wife to a doctor and suggested to him that she suffered from epileptic fits, and had then been so unlucky that each of the three had had some kind of fit in the bath and been drowned."

37 What is the difference between co-incidence and tendency reasoning? I do not accept the argument. With great respect, I am not sure that PNJ was correctly decided.but, accepting for present purposes that it should be followed, it was concerned with a question of coincidence evidence and thus, as it was held, whether there was sufficient similarities between the several incidents of offending as to make proof of one significantly probative of the proof of another. In this case we are concerned with tendency evidence, which is to say evidence which establishes that the appellant had a tendency to commit a particular kind of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such that the has significant probative value. The two are not the same, albeit that in some cases there may be a large degree of overlap. RHB v The Queen [2011] VSCA 295 (KOP [10.80]), [17]

38 Evidence that is neither coincidence or tendency evidence Evidence showing opportunity. Evidence of other conduct revealing a motive for the crime charged: e.g. previous sexual interest in complainant -held not tendency evidence: used to support an inference that the accused had motivation to act as charged (his passion for complainant). Evidence of a system (sometimes): e.g. evidence that a system had been put in place to produce a particular outcome it may be inferred that the outcome had occurred independently of any established tendency for that outcome to be produced on other occasions.

39 Evidence that is neither coincidence or tendency evidence Evidence identifying the defendant with the crime charged: e.g. evidence which showed that part of the proceeds of a robbery were found at scene of murder, other parts found in possession of the accused. Evidence relevant to a person's state of mind: e.g. evidence used to show why accused acted in a certain way towards victim: evidence of victim's violent conduct to show why on the relevant occasion victim felt necessary to act in a particular way. Evidence which corroborates the testimony of a complainant: e.g. evidence that accused had previously admitted to some uncharged sexual activity with his daughter is evidence to support, confirm or strengthen other evidence that the defendant committed the offences charged.

40 99 -Requirements for notices Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

41 100 -Court may dispense with notice requirements (1)The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party s failure to give notice under section 97. (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party s failure to give notice under section 98. (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4) In a civil proceeding, the party s application may be made without notice of it having been given to one or more of the other parties.

42 100 -Court may dispense with notice requirements (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) may be given either at or before the hearing. (6) Without limiting the court s power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party, (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence, (c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

43 101 -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. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

44 R v Ellis[2003] NSWCCA 319 (KOP [10.50]) Ellis convicted of 11 (of 13 charged) counts of break and enter and steal or attempt. All of the offences were committed: on the same type of premises in rural NSW (e.g., small retail outlets such as service stations) with the same type of goods stolen (e.g., cigarettes) with an unusual modus operandi (removing a whole pane of glass and not breaking it). A car owned by the defendant s ex and frequently driven by him was seen near most of the burglaries and his mobile phone records showed him in the vicinity. It was argued that each must have been committed by the same person. The judge held that tendency and coincidence evidence was admissible in respect of the 11 counts and permitted a joint trial to proceed. He didn t refer to the test in Pfennig but that in s 101(2).

45 R v Ellis[2003] NSWCCA 319 (KOP [10.50]) On appeal was the wrong test applied in determining whether the propensity evidence was admissible? Appellant said that rule in Pfennig should apply. PfennigNOT to be applied. Section 101 covers the field: 1. Following Papakosmas, the statutory regime for the admissibility of tendency and coincidence evidence held to be intended to cover the relevant field to the exclusion of common law principles previously applicable. The use of the word substantially to indicate the extent to which the probative value of tendency or coincidence evidence must outweigh its prejudicial effect ins101(2)is a legislative formulation, not derived from prior case law. It is different to the no rational explanation test. 2. The continued application of the Pfennigtest is inconsistent with the statutory requirement ins101(2)for a balancing of probative force and prejudicial effect.

46 R v Ellis[2003] NSWCCA 319 (KOP [10.50]) Pfennig NOT to be applied. Section 101 covers the field: 3. The trial judge was correct to adopt and apply the terminology of the legislation, rather than the pre-existing common law test in Pfennig. Application of the common law test may result in a trial judge failing to give adequate consideration, to the actual prejudice in the specific case that the probative value of the evidence must substantially outweigh. 4. The line of authority applying the Pfennigtest to the requirements for admissibility of tendency and coincidence evidence is wrong. However, there may be cases where, on the facts, it would not be open to conclude that the statutory test for admissibility is satisfied unless the common law test is also satisfied. Here, the result would have been the same regardless of whether the Pfennigor the statutory test was applied. In effect, this picks up the dissenting reasoning of McHugh in Pfennig.

47 R v Ellis[2003] NSWCCA 319 (KOP [10.50]) Here the trial judge held that the evidence was admissible as BOTH tendency evidence and coincidence evidence. There is not much discussion in the appeal of this and why it was not one or the other.

48 R v AE [2008] NSWCCA 52 (KOP [10.60]) The appellant charged with 15 sexual offences; thirteen against his stepdaughter, and two against his daughter. Jury returned verdicts of guilty on one count against step-daughter both against daughter. The two offences relating to daughter arose out of a single incident that was alleged to have occurred in 1995 when she was 11 years old. The appeal against conviction relating to step-daughter was on the basis that the verdict was unreasonable having regard to the verdicts on the other (not guilty) counts that also depended on the evidence of the step-daughter. The appeal against the convictions regarding the daughter was on the basis that the admission of tendency and/or coincidence evidence (Stepdaughter s evidence of the sexual assaults committed by the appellant against her as tendency evidence of the sexual assaults against the daughter) had resulted in a trial that was unfair.

49 R v AE [2008] NSWCCA 52 (KOP [10.60]) The judge held that there was a considerable improbability that the evidence in relation to both complainants occurred coincidentally, and the evidence had significant probative value. Dismissed argument of joint concoction. He concluded that the probative value of the evidence substantially outweighed any prejudice to the appellant. He identified the following as relevant to the calculation of probative value: Both victims were of similar age. All offences occurred in the appellant s home. Both were in a family relationship with the appellant and residing with him. At time of assaults, the appellant and complainant were alone in the bedroom. The first assault on each was largely identical. The appellant had told both complainants not to tell anyone, otherwise they d be in trouble.

50 R v AE [2008] NSWCCA 52 (KOP [10.60]) Although Pfennig test no longer applies, it is not wrong to consider the possibility of joint concoction when applying the legislative test. Here the judge was wrong to say that there was no possibility of joint concoction: A real chance existed that the evidence of the two complainants was contaminated because they were sisters and were in contact with each other at the time of their complaints. The prejudicial effect of allowing the step-daughter s evidence of her assaults to be admitted in relation to the offences against the daughter would have been great (jury would be overwhelmed by this evidence). Therefore the judge was wrong to find that it was substantially outweighed by the evidence s probative value. And that evidence could not be probative in the daughter s trial other than as coincidence/improbability evidence.

51 R v AE [2008] NSWCCA 52 (KOP [10.60]) Additionally, there weren t significant similarities between the assaults because the factors were common to most sexual assaults against children and were therefore unremarkable. This was acknowledges in the Crown s submissions, and a reason why the Court held that this evidence should not be used as co-incidence evidence. It was an error to admit the whole of the step-daughter s evidence as tendency or coincidence evidence on the trial of the counts relating to the daughter. Once the evidence was admitted there was a miscarriage of justice. The Trial Judge s directions were not sufficient to neutraliseany prejudice caused by the admission of the evidence. Appeal allowed. See also PNJ v R(referred to in RHB v The Queen).

52 R v AE [2008] NSWCCA 52 (KOP [10.60]) At first instance the evidence was allowed in as both tendency and coincidence evidence. On appeal s 98 was not pursued. The Court said that this was a realistic concession that the allegations made by the mother were not events that were substantially and relevantly similar to the allegations made by the daughter. It was an error to have admitted them under s 98 -therefore should have been tendency evidence only.

53 RHB v The Queen [2011] VSCA 295 (KOP [10.80]) Appeal against interlocutory decision to admit evidence of previous conviction as tendency evidence: Evidence of sexual offences committed against the defendant s daughters was admitted as tendency evidence in his trial for sexual offences against his grand-daughter. Granddaughter alleged that when she was around 10 or 11 (between Nov 2003 and Nov 2005), her grandfather indecently assaulted her. Grandfather came over to her and hugged her from behind. He had his hand on her wrist and then put his hand down her pants and underwear and touched her vagina with the back of his fingers for about 2 minutes. Grandfather had 3 similar previous offences of indecently assaulting his daughters in similar ways. The court admitted the evidence of previous convictions as tendency evidence. Defendant appealed.

54 There was not just one past occasion, but three. The evidence was not just that the applicant offended against his daughters in the past but he did so in a particular way and the circumstances were similar (e.g. touching vagina, child was under his care) The Court agreed with the trial judge that the evidence had significant probative value. The factors included: Remarkable that a man sexually assaults own female descendants. More remarkable that it was done in similar, if not identical way, even if common place sexual acts. Remarkable that in each case it was done in home of victim while other adults were close by, risking detection. If allowed, it would show that he had tendency to be sexually attracted to his young female descendants and to act on that.

55 The Court considered the long period of time between the current offence and the appellant s similar activities, but despite this gap, the evidence still had significant probative value and that value significantly outweighed its prejudicial effect. The judge had not taken into account irrelevant considerations, omitted relevant ones, or come to an unjust decision. Discusses the difference between co-incidence and tendency reasoning and their overlap [17]. Applicant argued that there is a possibility of contamination of truth in complaint s version of events by versions told to her by the daughters. However, the Court held that even if this was so, it would not affect the reliability of the tendency evidence, bit only the evidence of the granddaughter, which is a separate matter.

56 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Appellants were charged with 10 counts of insider trading and appealed against an interlocutory order dismissing their application to have a number of charges heard separately. Crown wanted to admit evidence of each offence as coincidence evidence in relation to other offences. DSJ was the insider; NS was the buyer. Appellants wanted some charges heard separately and wanted to exclude the coincidence evidence. Crown alleged that the coincidence of the trades proved that DSJ acted intentionally and with inside information when he placed the orders. A similar argument was made against NS. If allowed, the evidence would let the crown meet a defence that the trades were coincidental.

57 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Whealy JA It is first necessary to determine whether the evidence is relevant. Section 98 poses the question: whether the evidence is capable, to a significant degree, of rationally affecting the assessment of the probability of a fact in issue. The focus is on the capacity of the evidence to have this effect: R v Shamouil. [55] Assessment of the probative value of the evidence (for purposes of ss97, 98, 101) does not generally depend upon any assessment of its credibility or reliability. Nor does it depend upon a prediction of the likelihood that a jury will in fact accept it. [56] Significant probative value = more than merely relevance, but something less than a substantial degree of relevance [58] (citing R v Lockyer).

58 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Whealy JA Largely adopted the principles set down by Simpson J in R v Zhang (with some qualification for the fact that the legislation has changed since R v Zhang, and other matters): (i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact here, the jury;

59 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Whealy JA (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly(if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer(1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.

60 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Whealy JA The principles above are subject to: Factoring the change in the legislation. This was a practical explanation and not intended to supplant the language of the section. In making these assessments, the trial judge should not intrude into the fact finding arena. In making these assessments, the trial judge should not ignore or put aside altogether an alternative explanation that properly arises on the evidence which is inconsistent with guilt.

61 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Whealy JA It is not for the trial judge to weigh and assess that alternative explanation, as a jury would do. Nor is he/she required to examine and weigh parts of the evidence only in isolation from the whole body of the evidence. But trial judge should ask himself/herself whether the possible alternative explanation might otherwise substantially alter the capacity for cogency which the coincidence evidence possessed: Did the possibility of an alternate explanation deprive the coincidence evidence, taken with other evidence, of its capacity to prove significantly the crown case? Here, there was an error. Appeal allowed. McClellan CJ at CL and McCallum J agreed.

62 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Bathurst CJ agreed with Whealey J, but made some additional comments: First, its provisions will only fall for consideration if the evidence in question is relevant. That is in terms of s 55 of the Act it could rationally affect the probability of the existence of a fact in issue. Second, it requires the Court to form a view -"think -that the evidence had significant probative value, that is, that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. Third, it follows from the use of the word could in the definition of significant probative value that what the Court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: R v Shamouil

63 DSJ v R; NS v R [2012] NSWCCA 9(KOP [10.90]) Fourth, the matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the Court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value. However, as WhealyJA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. Allsopagreed with WhealyJ and the extra comments of BathurstCJ.

64 JacaraPty Ltd v Perpetual Trustees WAS Ltd (2000) 106 FCR 51 (KOP [10.100]) Civil misleading and deceptive case. The defendant allegedly misrepresented the attributes of a shopping centre to the plaintiff. Judge excluded representations made to other potential lessees regarding leases (therefore giving rise to the argument that the defendant had propensity to make these kinds of representation). UEL is not just codification of evidence law but created significant change. Judge thought that this would be s 97 evidence, because it showed that respondent s officer had a tendency to make representations of this type (and would be used to prove that she made them on this occasion)

65 JacaraPty Ltd v Perpetual Trustees WAS Ltd (2000) 106 FCR 51 (KOP [10.100]) The appellant argued that it was not just tendency evidence but also circumstantially went to fact in issue that she made the representation on this occasion. Court said, No. It was only relevant to the fact in issue (that the representation was made) because it established a propensity to act in a certain way. Just because there is an assertion that the evidence is really of a system or business practice does not necessarily mean that it is not tendency evidence. Here it was does the evidence assume that evidence of practice led to the conclusion that the person had a propensity? Gives examples of propensity v system (which goes to issue) [66] [67] An appeal of a decision regarding s 97 is an appeal of the exercise of a discretion.

66 Velkoskiv R [2014] VSCA 121 The appellant was convicted of 15 charges of committing an indecent act with a child under 16. The charges related to three complainants. The appellant s wife ran a day-care centre from their home and during nap time, the appellant exposed himself to three children and had two of them touch his penis. Conducted a long look at history of this kind of evidence and application of the UEL in NSW and Victoria. The provisions of the Evidence Act dealing with tendency and coincidence evidence should be viewed as a code. None of the common law principles that formerly governed this branch of the law are any longer binding in this area. [162]

67 Velkoskiv R [2014] VSCA 121 The approach currently taken by the New South Wales Court of Criminal Appeal to tendency and coincidence goes too far in lowering the threshold to admissibility. To remove any requirement of similarity or commonality of features does not give effect to what is inherent in the notion of significant probative value. If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible. In relation to tendency evidence, it remains necessary to identify and assess the strength of the features of the acts relied upon as supporting tendency reasoning. [See Odgers] Neither tendency nor coincidence evidence requires proof, as a condition of admissibility, of striking similarity. Nor should a trial judge ask whether it would be an affront to common sense to withhold evidence of that kind from the jury. Such expressions, taken from the common law, are unduly restrictive when it comes to the construction of the relevant provisions of the Evidence Act.

68 Velkoskiv R [2014] VSCA 121 The requirement of underlying unity, modus operandi, pattern of conduct or commonality of features applies to similarities that cannot be described as striking. These concepts continue to be regularly used to provide guidance as to the strength of the tendency evidence. They are to be found in the preponderance of authority from this Court and permeate its decisions. They remain, in our view rightly, a primary guide to the resolution of questions of admissibility. [82] The features relied upon must in combination possess significant probative value which requires far more than mere relevance. In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal underlying unity, a pattern of conduct, modus operandi, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength. [171]

69 Velkoskiv R [2014] VSCA 121 Further principles can be distilled from the authorities. The test laid down in Hochand Pfennighas no application to the admissibility under the UEL. As the law currently stands, the finding, in any case involving multiple complainants, that it is reasonably possible that there may have been concoction, collusion, collaboration or contamination among them renders tendency or coincidence evidence inadmissible. If contamination or concoction is to be relied upon, it should, of course, be raised, on behalf of the accused, before the trial judge. There must be a basis, in the evidence, for any such conclusion, beyond mere opportunity for it to have occurred. Mere speculative suggestion will not afford any such foundation. Where the issue of concoction, collusion, collaboration or contamination relevantly arises and has been raised by evidence, the Crown bears the onus of negating any such reasonable possibility.

70 Velkoskiv R [2014] VSCA 121 The offender s state of mind is frequently relied upon in the Crown s notice of tendency evidence to cover the offender s interest in particular victims and his willingness to act upon that interest. That the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence. It shows only that he is the kind of person who is disposed to and commits crimes of the type charged. Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary. Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender s state of mind adds nothing. Reference to it is calculated to divert the jury from focussing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely. (cf Ellis, AE)

71 Velkoskiv R [2014] VSCA 121 In the case of coincidence evidence, the relevant principles are, in many respects, the same. Plainly, coincidence reasoning can be invoked if there are similarities in the conduct of the accused on different occasions which reveal a pattern from which it may be inferred that he or she did a particular act or had a particular state of mind. Such reasoning can, for example, apply to render it improbable that a series of events occurred by accident, or by sheer coincidence. Such reasoning can also be invoked where there are similarities in the accounts given by two or more witnesses regarding the conduct of the accused which make it improbable, in the absence of concoction or contamination, that the witnesses are telling lies.

72 Velkoskiv R [2014] VSCA 121 The greater the number of such witnesses, the less need there will be for their evidence to be distinctive, still less, strikingly similar. It must be remembered, however, that it is a pre-requisite to the use of coincidence reasoning that there be such similarities between the accounts given by the various witnesses (whether as to the events themselves, or the circumstances in which they occurred), that it is improbable that the events occurred coincidentally. In addition, of course, it must be shown that the evidence sought to be adduced will, either by itself, or having regard to other evidence, have significant probative value.

73 Saoud v The Queen [2014] NSWSCCA 136 Defendant was charged with seven counts of indecent assault and sexual assault on the basis of two separate complaints one relating to conduct occurring on 8 August 2009, the other to conduct on 22 May The circumstances of each complaint were similar: former employees of the applicant, invited to his business premises after hours to help with work, where he persisted in sexual advances despite attempts to resist. The applicant denied the charges relating to the first complaint; he conceded the conduct constituting the indecent assaults with the second complainant, but said it was consensual. At trial, evidence of one complainant was held to have significant probative value with respect to charges concerning the other and was admitted as tendency and coincidence evidence. The issue for determination was whether the trial judge was correct in finding the evidence had significant probative value and whether the probative value of that evidence substantially outweighed its prejudicial effect.

74 Saoud v The Queen [2014] NSWSCCA 136 The evidence had significant probative value because it went to whether the applicant would have persisted in attempting sexual intercourse despite the absence of consent. This remained an issue even though the applicant accepted that the activities underlying the indecent assaults in the second complaint occurred: [26], [49]-[53] The probative value of the evidence outweighed any prejudicial effect: it was confined to establishing the charges laid, did not involve deviant behaviour and there were no issues of collaboration or contamination of the complaints. There was nothing to suggest any prejudice that did arise could not be addressed by adequate directions: [54]-[59] The CCA also discussed Velkoskiand whether there was a divergence of authority between NSW and Victoria:

75 Saoud v The Queen [2014] NSWSCCA 136 It is neither productive nor appropriate (there being no hint of disagreement in the submissions before the Court) to consider whether in this respect the opinions expressed in Velkoskiare correct. However, it may be noted that each Court has cited judgments of the other over a number of years without major points of departure being noted. More significantly, it is possible to derive a number of basic propositions which are not in doubt and are sufficient to resolve the issues in this ca [W]here relevant and appropriate, a proper consideration of similarities will constitute an essential part of the application of s 97, as this Court has accepted on numerous occasions. [48] This argument deals with the extent that similarity between events is required in relation to s 97. The authorities appear to agree that in relation to s 98, it is necessary to some degree, as it is explicitly referred to in the section.