Tendency and Coincidence Evidence Victoria

Tendency and Coincidence Evidence Victoria Thursday 5 th of September, 2013. A seminar presented by the s List Criminal Law Practice Group Chair: Presenter: Paul Willee RFD QC RFD GORDON & JACKSON Barristers Clerks 205 William Street Melbourne 3000 Dx 94 Melbourne Vic Ph 9225 7333 www.gordonandjackson.com.au

Paul Willee RFD QC Clerk +61 3 9225 7333 Telephone: +61 3 9225 7564 Email: willeeqc@vicbar.com.au Chambers: Room 1309 Owen Dixon Chambers East 205 William Street Melbourne Vic 3000 Admitted to the Legal Profession: 01 Apr 1966 Signed Victorian Bar Roll: 23 Feb 1967 Appointed QC or SC: Accredited as mediator: 29 Feb 1996 Qualifications: LLM, LLB, Diploma Commercial Data Processing [RMIT] 26 Nov 1991 Also entitled to practise in: Australian Capital Territory Federal Court of Australia Fiji High Court of Australia New South Wales New Zealand Tasmania Western Australia Areas of Practice Administrative Law (Judicial Review) Administrative Law (Merits Review) Admiralty/Maritime Alternative Dispute Resolution/Mediation Commercial Law Courts Martial Criminal Law/Intervention/Compensation Environment Human Rights Inquests Licensing and Disciplinary Tribunals Occupational Health and Safety Professional Negligence WorkCover/Comcare Criminal Law (Appellate)

TENDENCY and COINCIDENCE EVIDENCE VICTORIA September 2013 INTRODUCTION 1. In July 1979 Senator Durack, the then Commonwealth Attorney-General, referred to the Australian Law Reform Commission the topic of a review of the laws of evidence applicable to proceedings in Federal Courts and Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to modern conditions and anticipated requirements. With the speed of Winged Mercury the Federal Parliament, in 1995 (and shortly thereafter the New South Wales Parliament) enacted what is now the Evidence Act, or as sometimes called the Uniform Evidence Act. Victoria, being ever cautious of the radical elements introducing such far reaching changes to the tried, true and easily understood common law of evidence, upon which those of us a certain age had been raised, eventually donned the Uniform by introducing the Evidence Act 2008. The purpose of our Victorian act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law and accordingly interpretations of Commonwealth and New South Wales courts are of importance in assisting the Victorian practitioner when considering what arguments might be viewed favourably by our learned and wise judiciary. 2. One could possibly be forgiven for musing that with such a new piece of legislation the case law might be meagre, even allowing for the case law developed over eighteen years with issues relating to Commonwealth and New

2 South Wales matters, but a scan of the reported cases shows the fecund nature of any legislation designed to simplify matters when placed into the hands of curious and sometimes imaginative lawyers. 3. The purpose of this presentation is to look at one part of the Act: Part 3.6 Tendency and Coincidence evidence. Part 3.6 encompasses sections 94 to 101 of the Act but needs to be read together with sections 55 and 56 (relevance and admissibility) and section 137 (judicial discretion as to admissibility in criminal proceedings). 4. A point that I would like those present this morning to take away from this presentation is that tendency and coincidence are two separate things. I highlight that there is a difference because anecdotal discussion with judges required to deal with the issue indicates that some of the notices they receive list the evidence sought to be adduced as falling into both categories. Sometimes the issues might well fall into both categories. However, I am told that it usually seems that counsel hopes that by using both headings the Judge will be able to unscramble the egg to choose which part is the yolk and which part is the white. Perhaps, and I speculate, the reason is that the drafter of the relevant notice has not been able to determine under which section they seek to lead the particular piece of evidence. 5. Having said that, it may be that the same piece of evidence is going to be led as being both tendency and coincidence. Should this occur the drafter of such notices should set out the appropriate reasoning applicable to both sections

3 being able to ascribe the relevant criteria applicable to each to support the argument for admissibility on either (or both) grounds. HISTORY 6. I delve into the history not merely because of the interesting cases that this area of law has given to practitioners (but probably more to bright eyed students) when considering similar fact, propensity or coincidence and tendency evidence but also to ascertain how we have arrived at the current position with sections 97 and 98 of our Evidence Act 2008. The murmuring of the case names of Makin v Attorney General of New South Wales [1894] AC 57 in the same breath as R v Smith [1915] 11 Cr App R 229 conjures up memories of horrific criminal types whose distinctive modus operandi helped lead to their very undoing. 7. When tried for the murder of a child while being cared for by Mr and Mrs Makin the prosecution was permitted to lead evidence of the presence of thirteen other fostered infants buried in the back yards of their previous homes on the basis that such deaths and burials presented such an improbability of there being any innocent explanation to account for such a coincidence. The Lord Chancellor, Lord Herschell, on behalf of the Privy Council, explained the basis of the admissibility of such evidence. The Privy Council s explanation became the benchmark in this area for many years. Their Lordships stated: It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the

4 conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other. [Emphasis added] Their Lordships final sentence was to prove particularly accurate! 8. In the brides in the bath case Mr Smith was charged with the murder of a woman with whom he had gone through a form of a marriage ceremony. The ever financially responsible Mr Smith then made fiscal arrangements with his new bride, which might be viewed by the cynical as being to his benefit, and within a short time his dearly beloved spouse inexplicably, or perhaps more appropriately stated, almost inexplicably, drowned in her bath. The police established that two other women had met their ends in a coincidental manner having become similarly entangled with Mr Smith. 9. Both in Makin and in Smith the otherwise inadmissible and highly prejudicial evidence was admitted because of the improbability of the strikingly similar facts having any rational explanation other than the guilt of the accused. The

5 remarkable co-incidences of the manner of the deaths in the Smith Case and the entire modus operandi in the Makin Case was sufficient to rouse even a moderately competent constable of police into exclaiming: Hello, hello, hello, what s going on here then! 10. The law in Australia developed along different lines to that in England 1. The ultimate test that existed in Australia before the introduction of the Evidence Act 1995 was that laid down in Pfennig v R (1995) 182 CLR 461. The test enunciated in Pfennig was whether there was any rational explanation for a fact consistent with innocence; if so the evidence was inadmissible; if not, then the majority (Mason CJ, Wilson and Gaudron JJ; McHugh J dissenting) ruled that there needed to be a weighing of the prejudice as against the probative value of the evidence. McHugh J was of opinion that once there was no rational explanation consistent with innocence then the evidence could then be admitted without the second step. The law as enunciated by the majority in Pfennig was that: the trial judge must recognise that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of 1 As a matter of historical interest only, the English cases of DPP v P [1991] 2 AC 447 and R v H [1995] 1 AC 596; [1995] 2 WLR 737 indicate what was seen as an erosion of the strict requirements for the admissibility of similar fact evidence that had been laid down in DPP v Boardman [1975] AC 457 but eventually formed the basis of the relevant provisions of our Evidence Act 2008.

6 the prosecution case, there is a reasonable view of it which is consistent with innocence. [Emphasis added.] 11. The law on this subject in Victoria, post Pfennig and prior to the introduction of our Evidence Act 2008 could be found in section 398A of the Crimes Act 1958. The effect of the introduction of section 398A was to avoid the Pfennig test and to more closely align the law of Victoria with that which existed in England. An early statement of the effective avoidance of the Pfennig test by section 398A is to be found in The Queen v Best [1998] 4 VR 603. Their Honours in Best compared the English and Australian decisions, the plain meaning of the section and the terms of the second reading speech to clearly spell out their view that Pfennig was no longer good law within Victoria. Best s Case was consistently followed in Victoria with a leading interpretation of section 398A being contained in R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375. In that case Winneke P, with whom Ormiston and Buchanan JJA agreed, stated: It was not necessary to demonstrate...that there were striking similarities between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. it is evident from his [Honour s] reasons that he was of the view that there was an underlying unity between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view and I think correctly that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy storage room, the toilets at the Plaza, the vehicle which he drove from his place of work or from work-related

7 functions. Whether one describes these factors as providing an underlying unity, or a common modus operandi or a pattern of conduct is of little consequence. The links were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of infection the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive and in my view strongly supportive of the evidence of others. Not only that, but in my opinion the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a prejudice to the accused. But the prejudice of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. THE PROVISIONS OF THE EVIDENCE ACT 2008 (VIC) 12. The Evidence Act 2008 introduced the terminology of the tendency rule and the coincidence rule in sections 97 and 98. Relevantly those sections state: 97(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.

8 98(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. 13. In a criminal proceeding, the admissibility of tendency evidence and coincidence evidence adduced by the prosecution is also subject to the overriding effect of sub-section 101(2), which provides as follows: 101(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. 14. It must at all times be remembered that the sections are exclusionary. Unless the party seeking to admit the evidence can show: a. That they have given the requisite notice; and b. That the Court believes the evidence to have significant probative value; the evidence will not be admitted. 15. The form of the Notice as to the matters to be included as required by sections 97 and 98 is to be found in regulation 7 of the Evidence Regulations 2009.

9 16. Interpretation of the sections has exercised the minds of our Court of Criminal Appeal and similar institutions in other States and Territories on numerous occasions. The cases that I intend to use as guidelines for the current views of the courts are: a. CGL v DPP [2010] VSCA 26 b. CW v The Queen [2010] VSCA 288 c. R v Gale; R v Duckworth [2012] NSWCCA 174 Coincidence tests 17. In CGL v DPP the Court of Appeal was concerned with both tendency and coincidence evidence that had been led by the prosecution at trial. The evidence related to different complainants but was of a general nature often common to the type of offending that the accused was charged with. At paragraphs 20 and 21 of the judgment their Honours (Maxwell P, Buchanan and Bongiorno JJA) stated that the basis of admissibility as coincidence evidence was: 20. by reason of similarities between the events and/or the circumstances in which they occurred, it is improbable that the events occurred coincidentally. 21. In order to decide whether coincidence evidence has significant probative value, the Court must first be satisfied that the similarities relied on are such as to render the evidence probative of the fact that the person (in this case, the accused) did the act, or had the state of mind, identified in the notice. The Court must also be satisfied that proof of that fact (the doing of the act or the existence of the state of mind) is itself probative of a fact in issue in the criminal trial. Only when the Court is so satisfied can the Court undertake the assessments required, in turn, by s 98(1)(b) and by s 101(2). [Emphasis added] 18. At paragraph 22 of the judgment their Honours set forth a four-stage process in considering whether the evidence could be admissible as coincidence evidence. They stated that the questions to be addressed are: 1. Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred

10 coincidentally? 2. If so, would the evidence of those events and circumstances tend to prove that the accused: (a) (b) did the specified act; or had the specified state of mind where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue? 3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought to be adduced by the prosecution? 4. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused? 19. The Court of Appeal referred to the decision of Winneke P in Papamitrou and indicated that in CGL they were not persuaded that any of the alleged similarities could be said to illustrate an underlying unity or a common modus operandi or a pattern of conduct. 20. In relation to the tendency evidence sought to be adduced in CGL the Court of Appeal noted that, unlike section 98(1), section 97(1) does not identify the basis on which evidence becomes admissible to prove a relevant tendency 2. Their Honours rejected the evidence sought to be adduced as tendency evidence (which consisted of the same acts expressed in a different manner) for the same reasons set forth in relation to the coincidence claim. 21. By way of conclusion their Honours indicated that the greater the degree of specificity with which the similarities can be identified the more likely it will be that the evidence will be found to be probative of a tendency and therefore capable of consideration for admission under the section. 2 Paragraph 37 of the judgment

11 22. In the matter of CW v The Queen counsel for the Appellant sought to invoke the no rational explanation or Pfennig test when considering section 101. The Court of Appeal referred to the decision in R v Ellis [2003] NSWCCA 319 which considered the use of the words substantially outweigh in sub-section 101(2) as having displaced the common law as defined in Pfennig; a situation that had already been reached in Victoria by the enactment of section 398A of the Crimes Act 1958 and continued by the terms of the new Evidence Act 2008. 23. In the joint cases of R v Gale and R v Duckworth Simpson J (McClellan CJ and Fullerton J concurring) sets out the basis of the steps to be considered when determining whether evidence should be admitted as coincidence evidence pursuant to section 98. In her consideration of section 98 Her Honour observed: At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is: two or more events occurred; and there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and having regard to those similarities, it is improbable that the two events occurred coincidentally; therefore the person in question did a particular act or had a particular state of mind. 3 3 Paragraph 25 of the judgment

12 24. Simpson J set out the steps in reasoning to be followed when considering whether evidence was admissible pursuant to section 98 as: the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove; the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind"; the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events; the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value"; in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)). the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two. 25. The three cases to which I have referred offer, in my view, a process which will assist practitioners in ascertaining whether tendency or coincidence evidence can be, and/or should be, admitted pursuant to the provisions of Part 3.6 of the Evidence Act 2008. 26. The manner in which the courts have interpreted the relevant sections has created differing views among the practicing profession. There are those, usually when sitting at the defence end of the bar table, who believe that the prosecution now has it too easy, while, perhaps unsurprisingly, those

13 prosecuting often think that patently similar facts have been somehow excluded with perhaps Gale and Duckworth at first blush (though not after considered reasoning) might be seen as an example. 27. In my view there is but one thing that is certain and that is that the law in this area is not yet finalized. A judge of our court of appeal at a recent CLE seminar discussing the new Jury Directions Act 2013 indicated, in a moment of obiter dicta, that there will be changes to this part of the Evidence Act 2008 in the very near future. We shall see. Until any such changes it is an area that demands some detailed analysis by those who seek to use its provisions for the tendering of evidence that would otherwise be inadmissible.

4/09/2013 The Evidence Act 2008 Part 3.6 Sections 94 to 101 Tendency and coincidence evidence September 2013 To be read with sections 55, 56 and 137 Similar Fact History Makin v Attorney-General of New South Wales [1894] AC 57 Basic Principle Only the evidence relevant to the charge before the court is admissible ibl not evidence relating to prior or post criminal behaviour R v Smith [1915] 11 Cr App R 229 1

4/09/2013 The Exception? The evidence is relevant if it bears upon the question whether the acts alleged to constitute the crime in the indictment idi were designed or accidental, or, to rebut a defence which would otherwise be open to the accused (1995) 182 CLR 461 Pfennig v R Only reasonable inference in the circumstances Reasonable view consistent with innocence s398a Crimes Act 1958 The Queen v Best [1998] 4 VR 603 R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375 underlying unity common modus operandi pattern of conduct LINKS Tendency Rule Evidence Act 2008 S97 evidence of a tendency (because of character or otherwise) not admissible unless: Notice Given see Regulation 7 of the Evidence Regulations 2009 not required if answering something raised at trial (s97(2)); and The court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced have significant probative value 2

4/09/2013 Evidence Act 2008 The coincidence rule S98 Evidence of two or more events to show a person did a particular act or had a state of mind on the basis of similarities in the events or the way in which they occurred, or similarities in both events or the way they occurred, to show the improbability of the events occurring coincidentally is inadmissible unless:- Notice given Significant probative value Probative Value Defined in the Dictionary: means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Note that each section requires significant probative value - a long way short of Pfennig test of only reasonable inference in the circumstances Criminal matters Further test of S101(2) that states: Some recent cases CGL v DPP [2010] VSCA 26 cannot be used against the accused unless the probative value of the evidence SUBSTANTIALLY OUTWEIGHS any prejudicial effect it may have on the defendant Paragraphs 20-22 of the judgment 4 stage test for coincidence evidence 3

4/09/2013 Some recent cases CW v The Queen [2010] VSCA 288 Some recent cases R v Gale and R v Duckworth [2012] NSWCCA 174 The final obituary notice for the Pfennig test in Victoria Paragraphs 25 and following of the judgment for Her Honour s thought processes Questions? 4

RFD Clerk +61 3 9225 7333 Telephone: +61 3 9225 8075 Fax: +61 3 9225 6038 Email: garyhevey@mac.com Chambers: Room 0808 Owen Dixon Chambers East 205 William Street Melbourne Vic 3000 Admitted to the Legal Profession: 01 Mar 1977 Signed Victorian Bar Roll: 05 Dec 2002 Qualifications: LL.M; LL.B (Hons) Also entitled to practise in: Federal Court of Australia Northern Territory Queensland South Australia Accredited Advocacy Coach r Areas of Practice Administrative Law (Judicial Review) Administrative Law (Merits Review) Aviation Commercial Law Corporations and Securities Courts Martial Criminal Law/Intervention/Compensation Defamation, Media & Entertainment Family Law/De Facto Inquests Insurance Licensing and Disciplinary Tribunals Personal Injuries Planning and Local Government Professional Negligence Property Law Criminal Law Gary practices mainly in the areas of criminal law, administrative law, commercial law, family law and personal injury work. Gary returned to Victoria in 2001 having practised in South Australia as a prosecutor and then at the South Australian independent bar from 1985 to 2000. He has prosecuted and defended serious criminal matters over many years at all levels. Gary has appeared in numerous appeals in the High Court, Full Federal Court as well as various State Courts of Appeal and Criminal Appeal. Gary has appeared as counsel assisting in a number of Commissions of Inquiry in various States and the ACT and has also represented parties before such inquiries. He has appeared in high profile coronial inquests on behalf of families and potentially affected parties. He has served as an Army Officer, both Regular and Reserve, and currently holds the rank of Colonel. He was appointed a Judge Advocate and Defence Force Magistrate in 1998 and resigned that appointment to become the Inaugural Director of Military Prosecutions between 2003 and 2006. He has served two tours in Afghanistan. Gary has held a private pilot's licence and an open water diver's licence.

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