LAW OF EVIDENCE
Alex Kuklik
LEC 2015/2016 Summer
Alexander Kuklik
12 Wentworth Selborne Chambers
(02) 9231 4422
[email protected]
Admissibility – tendency and
coincidence evidence
Admissibility – tendency and coincidence
Admissibility of evidence - tendency and coincidence
KOP Ch 10
EA ss 94-101
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])
Jacara Pty 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
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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, 2nd ed, 1991)
Bostock study - jurors more likely to convict with recent similar
conviction
• Can the risks associated (with the evidence be cured by judicial
direction?
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
Australian position regarding admissibility:
UEL jurisdictions – ss 97, 98, 101
Common law – test in Pfennig v The Queen (1994) 182
CLR 462 (KOP [10.30])
Admissibility – tendency and coincidence
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).
Admissibility – tendency and coincidence
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 1989. 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.
Admissibility – tendency and coincidence
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 a rational 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]
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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]
Admissibility – tendency and coincidence
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]
Admissibility – tendency and coincidence
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]
Admissibility – tendency and coincidence
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….
Admissibility – tendency and coincidence
94 – Application
(1) This Part does not apply 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.
Admissibility – tendency and coincidence
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 not apply 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 Odgers at
[1.3.646]). Section 94 operates so as to remove the operation of the
tendency and coincidence rules.
• See: Clark v The Queen [2008] NSWCCA 122 at [108].
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
96 - Failure to act
A reference in this Part to doing an act includes a reference to failing to
do that act.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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: Jacara Pty Ltd v Perpetual
Trustees WA Ltd (2000) 106 FCR 51
Admissibility – tendency and coincidence
“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
Admissibility – tendency and coincidence
“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": Jacara Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR
51.
Admissibility – tendency and coincidence
“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 operandi in
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
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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 Zhang the 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.
Admissibility – tendency and coincidence
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)).
Admissibility – tendency and coincidence
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
occurred not long after entering marriage and financial
arrangements under which the accused would stand to benefit if they
died.
• Smith’s appeal was unsuccessful. He was convicted and hanged on
13 August 1916.
Admissibility – tendency and coincidence
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."
Admissibility – tendency and coincidence
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]
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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).
Admissibility – tendency and coincidence
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.
•
Pfennig NOT 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 in s101(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 Pfennig test is inconsistent with the
statutory requirement in s101(2) for a balancing of probative force and
prejudicial effect.
Admissibility – tendency and coincidence
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 Pfennig test 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 Pfennig or
the statutory test was applied.
•
In effect, this picks up the dissenting reasoning of McHugh in Pfennig.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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 neutralise any prejudice
caused by the admission of the evidence.
•
Appeal allowed.
•
See also PNJ v R (referred to in RHB v The Queen).
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
•
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.
Admissibility – tendency and coincidence
•
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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 ss 97,
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).
Admissibility – tendency and coincidence
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;
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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.
Admissibility – tendency and coincidence
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
Admissibility – tendency and coincidence
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 Whealy JA 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.
•
Allsop agreed with Whealy J and the extra comments of Bathurst CJ.
Admissibility – tendency and coincidence
• Jacara Pty 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)
Admissibility – tendency and coincidence
• Jacara Pty 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.
Admissibility – tendency and coincidence
• Velkoski v 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]
Admissibility – tendency and coincidence
• Velkoski v 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.
Admissibility – tendency and coincidence
• Velkoski v 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]
Admissibility – tendency and coincidence
• Velkoski v R [2014] VSCA 121
•
Further principles can be distilled from the authorities.
– The test laid down in Hoch and Pfennig has 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.
Admissibility – tendency and coincidence
• Velkoski v 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)
Admissibility – tendency and coincidence
• Velkoski v 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.
Admissibility – tendency and coincidence
• Velkoski v 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’.
Admissibility – tendency and coincidence
• 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 2011. 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.
Admissibility – tendency and coincidence
• 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 Velkoski and whether there was a divergence of
authority between NSW and Victoria:
Admissibility – tendency and coincidence
• 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 Velkoski are 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.