Amhet v State of Victoria and Ors (Ruling)
[2016] VCC 337
•9 March 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-11-05086
| BARIYOW AMHET | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| MARK ROBERTSON | Second Defendant |
| NICK KONSTANTINIDIS | Third Defendant |
| TIMOTHY VERRENKAMP | Fourth Defendant |
| and | |
| MELISSA JARDINE | Fifth Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 22 and 23 February 2016 | |
DATE OF RULING: | 9 March 2016 (Revised) | |
CASE MAY BE CITED AS: | Amhet v State of Victoria & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 337 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Evidence – admissibility of tendency and coincidence evidence
Legislation Cited: Evidence Act 2008, s135
Cases Cited: Velkoski v The Queen [2014] VSCA 121
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC Mr K McDonald | Flemington Kensington Commercial Legal Centre |
| For the First Defendant | Mr P J Lawrie | Victorian Government Solicitor |
| For the Second, Third, Fourth and Fifth Defendants | Russell Kennedy |
HIS HONOUR:
1 My ruling is sought in this instance as to the application made by the plaintiff to adduce tendency and coincidence evidence.
2 In the proceeding against the defendants, the plaintiff seeks damages with respect to the following causes of action:
(i) Assault and battery
(ii) False imprisonment
(iii) Malicious prosecution.
3 The circumstances relied upon by the plaintiff in making good his claims in this instance are set out in the plaintiff’s Statement of Claim and pages 725b onwards of the Court Book.
4 The admissibility of evidence pursuant to the Evidence Act 2008 (“the Act”) on the grounds that it reveals the existence of:
(i)a tendency to act on a certain way;
(ii)a pattern of occurrences which are so similar that it is unlikely that they would have arisen merely by way of coincidence
is governed by the prerequisite that the evidence possesses significant probative value.
5 In Velkoski v The Queen[1] at paragraphs 164-171, the Court of Appeal made the following authoritative statements as to the admissibility of tendency and coincidence evidence under the Act:
[1][2014] VSCA 121
“[164]Section 97(1)(b) is intended to address the risk of an unfair trial through the use of tendency reasoning by ensuring a sufficiently high threshold of admissibility. We consider 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 in our respectful opinion 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. This view, we think, clearly represents the present position of our court reflected in the long line of authority to which we have referred.
[165] …
[166]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. Odgers, in his Uniform Evidence Law in Victoria sets out a list of features which include the following:
(i)the number of occasions upon which the particular conduct relied upon is said to have occurred;
(ii) the time gap between those occasions;
(iii)the degree of similarity between the conduct on those occasions;
(iv)the degree of similarity of the circumstances in which that conduct took place;
(v) whether the tendency evidence is disputed, and
(vi) the issue to which the evidence is relevant.
[167]As to the last matter, it has been suggested that tendency evidence may have greater probative value in proving conduct than in identifying an offender.
[168] …
[169]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.
[170] …
[171]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.”
6 Relevantly:
“[173]It seems to us that a number of further principles can be distilled from the authorities.
(a) …
…
(f)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 focusing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely. We shall amplify our concerns regarding the direction in the present appeal in reasons that follow.
[174]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.
[175]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.
[176]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’.”
7 At paragraph 177, the Court of Appeal commented that in applications of this type “of course, one needs to bear in mind at all times the issues raised in the trial”.
8 In a civil proceeding the issues raised in a trial by a plaintiff are set out in the plaintiff’s statement of claim.
9 It follows that in this instance my analysis must involve the process of:
(i)Firstly identifying the acts pleaded in the Statement of Claim, the occurrence of which it is asserted is rendered more likely by reason of the admissibility of the tendency evidence and/or coincidence evidence.
(ii)Secondly, analysing the acts relied upon as supporting tendency or coincidence reasoning for the purpose of assessing whether that evidence reveals “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 and in that sense the evidence possesses significant probative value
10 Given the structure of the plaintiff’s pleading, which makes allegations that the second and third defendants engaged in inappropriate activity which occurred jointly with other defendants but in addition that each of them engaged in individual activity which was inappropriate, I am satisfied that I should consider the admissibility of the alleged tendency and coincidence evidence separately against each defendant on the basis of the actions which it is alleged each defendant both:
· individually; and
· jointly.
11 The tendency notice describes the tendency sought to be proved of each of the defendants as follows:
(i) To unlawfully assault and falsely imprison people on the pretence that those people committed offences, when Robertson and Konstantinidis did not believe, and had no reasonable basis to believe, those people had in fact committed those offences;
(ii) To unlawfully assault people in circumstances where Robertson and Konstantinidis could abuse their powers as police officers to so assault;
(iii) To unlawfully assault people in circumstances where and when there were no witnesses or no independent witnesses;
(iv) To maliciously prosecute people either by instituting, or being instrumental in instituting, charges they did not believe, or had no reasonable ground for believing, those people had committed and were likely to be found guilty of committing such offences.
12 The first three of the tendencies relied upon by the plaintiff involve an alleged tendency to unlawfully assault.
13 A common feature of the vast majority of the prior behaviour is the fact that it occurred:
(i) in the course of an arrest; or
(ii) following an arrest;
in circumstances in which it could not be alleged, if the position of one, or other, or both of the defendants against whom the tendency notice is directed was accepted, involved the potential for a finding that each of the defendants were:
· acting lawfully to apprehend a person who is committing an unlawful act or was about to commit an unlawful act; or
· not involved in any behaviour which was not justified given the situation with which they were presented.
14 Further, it is clear that each of the notices asserts a tendency which, to be established, must involve not only evidence probative of the actions of the defendants but also the state of mind of the defendants.
15 The tendencies relied upon in Ground 4.1 involve the following requisite states of mind:
(i) to unlawfully assault;
(ii) to falsely imprison;
(iii) and potentially two further states of mind, namely the possession of a positive belief that no offence had been committed, together with a knowledge that there was no basis to believe that an offence had been committed.
16 The tendency set out in Grounds 4.2 and 4.3 involve an intention to unlawfully assault. In addition:
(i) Ground 4.2 relies upon the existence of circumstances in which the defendants “could abuse their power as police officers to so assault”, the description of the abuse of power involved being, in my opinion, so nebulous that it is difficult to set the parameters as to what activity should necessarily be present to give rise to such an abuse.
(ii) Ground 4.3 involves an intent not only to unlawfully assault but also to do so only when in the absence of no witnesses or no independent witnesses. (Whether or not the reference to independent witnesses refers to fellow police officers or to members of the public known or unknown to the defendants, or the alleged victim of the assault, is unclear).
17 The tendency involved in Ground 4.4 involves the following states of mind:
(i) an intention to maliciously prosecute;
(ii) a belief that the victim would not be found guilty of the relevant offence; or
(iii) a belief that there was no reasonable ground that it was likely that the person would be found guilty of committing an offence.
18 Given that each of the tendencies described in paragraphs 4.1 and 4.4 of the Tendency Notice require me to make a finding as to the state of mind of each of the defendants when they engaged in the conduct sought to be relied upon which, on each occasion involved the performance of a potentially authorised act or arrest which was rendered unlawful:
· by reason of the way it was undertaken; or
· a combination of the circumstances in which it was undertaken in the context of the existence of one, or more than one, states of mind held by each defendant at the time;
each of the tendency notices clearly involve which the Court of Appeal in Velkoski at paragraph 173(f) described as being impermissible, highly prejudicial and unnecessary namely the determination of a state of mind and in this instance the presence for the most part of multiple concurrent states of mind.
19 Further in circumstances in which of the facts relied upon in the tendency notices arose in the course each of the defendants excising a potentially authorised power and that each of the defendants deny that any of their actions were unlawful, I am satisfied that only in the presence of the most extreme pattern of behaviour would it be safe to make a finding that any of the alleged tendencies are made out.
20 I make this statement applying to my analysis the approach set out by the Court of Appeal in Velkoski.
21 For the reasons set out below I am not satisfied that any of the evidence relied upon against each of the second and third defendants:
· demonstrates the existence of any of the relevant tendencies;
· demonstrates the presence of such a similarity of conduct as is necessary to allow its admissibility as coincidence evidence.
22 As I have stated earlier in undertaking the analysis in this instance I will do so by adopting the process of:
(i)Firstly identifying the facts relied upon by the plaintiff in his Statement of Claim, the occurrence of which it is asserted is rendered more likely by reason of the admissibility of the:
·tendency; and/or
·coincidence
evidence.
(ii)Secondly, analysing the acts relied upon as supporting tendency or coincidence reasoning for the purpose of assessing whether that evidence reveals “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.
Analysis of the relevance and probative value tendency and coincidence evidence
23 The allegations in the pleadings which it is asserted the admission of the alleged tendency or coincidence evidence will render the occurrence of more likely, are as follows:
It is alleged against second defendant that: In the process of arresting the plaintiff:
· Punched the plaintiff repeatedly with quick closed fisted punches to the face and nose area.[2]
· Dragged the plaintiff to the doorway and then down the stairs, at times by the hair.[3]
· Whilst the plaintiff was handcuffed in the divisional van, punched the plaintiff repeatedly to the head.[4]
· Deliberately punched the plaintiff in the head and face while holding him by the hair[5] whilst the plaintiff was a prisoner at the Flemington Police Station.
It is alleged against the third defendant: · That he sprayed capsicum spray without warning at close range directly into the face of the plaintiff.[6]
[2]See Further Further Amended Statement of Claim dated 15 May 2013, “Particulars” to paragraph 5
[3]See Further Further Amended Statement of Claim dated 15 May 2013, “Particulars” to paragraph 5
[4]Ibid
[5](ibid), paragraph 7 and “Particulars” to paragraph 7
[6]See Further Further Amended Statement of Claim dated 15 May 2013, paragraph 7 and “Particulars” to paragraph 7
It is alleged against the second and third defendants that they: · Arrested the plaintiff without reasonable grounds for believing the plaintiff had committed an indictable offence and that he was not informed of the reason for his arrest.[7]
· Pushed the plaintiff’s face down to the ground as he was handcuffed, so that he could not breathe.[8]
· Forcibly detained the plaintiff at Flemington Police Station.[9]
· Were instrumental in the plaintiff being charged with resisting police in the line of their duty.[10]
· Engaged in punching/assaulting the plaintiff because he was African.[11]
· Treated the plaintiff in a racist manner.
[7](ibid) paragraphs 4 and 4A(a)
[8](ibid), “Particulars” to paragraph 5
[9](ibid) paragraph 6
[10](ibid) paragraphs 8-10 inclusive. “Particulars” to paragraph 9
[11](ibid) “Particulars” to paragraph 19
24 It is within the context of these allegations against the second and third defendants that the relevance and probity of the alleged tendency or coincidence evidence which I will now refer to must be tested.
25 I will deal firstly with the evidence of the witnesses who attended for cross-examination.
Analysis of the evidence of the witnesses who attended for cross-examination
Andrew Ognjenovic
26 Mr Ognjenovic alleges that he was punched by the second defendant in the process of his arrest and whilst in custody.
27 He said that he had attended the police station merely to allow the supervision of the orderly handover by him of his son to his wife and that the police had no part to play in the administration of or the enforcement of the Family Court access orders which were in place. He said that in the course of the handover:
(i) His wife was screaming at him in the foyer of the police station;
(ii)His wife was informing him, only a week before Christmas, that she was not going to comply with the Court Orders requiring him to have access to his son on Christmas day;
(iii)As he sought to ascertain whether he would have access to his son for Christmas lunch while on Christmas Eve, his wife was rude and abrupt and refused to answer him.
28 He agreed that:
(i) Access to his son at Christmas time was very important to him;
(ii) The behaviour by his wife caused him to inform the police that he had Court Orders, issued by the Dandenong Family Court, by waving the Orders around and asserting his rights to his Christmas visit;
(iii) That he refused to leave the police station, notwithstanding a warning that he would be charged with trespassing if he failed to do so.
29 In the circumstances described above, Mr Ognjenovic insisted that he was at all times calm, was at no stage agitated or upset and at that at no time did he do anything which was responsible in any way for an unprovoked attack which was occasioned upon him by police officers including the second defendant.
30 I find Mr Ognjenovic’s evidence as to his state of mind and behaviour to be unlikely in the extreme. I am satisfied that it is probable that he became upset by reason of the aggressive and hurtful behaviour of his wife and his misplaced perception that the police officers should have assisted him in some way.
31 In these circumstances I am satisfied that he may well have acted in a manner which he now denies and that his allegations against the second defendant which are denied by the second defendant should be accorded very little weight.
Andrew Wilson
32 Mr Wilson is a serial offender, his history of driving offences and numerous car thefts extending for many years. He is also a user of amphetamines. He said that on the day of the incident he had ingested three grams of amphetamine via intravenous injection. His history includes convictions for recklessly causing injury. The above history alone, given the multiple convictions for theft and relevant drug use, raises potential issues as to his reliability.
33 The incident, the subject of his evidence, involved a high-speed car chase which continued for the vicinity of 20 minutes and involved a number of police cars. He described having had a relationship with the second defendant of grudging politeness or respect. He said that, in the course of the police chase when his car came to an unexpected stop, the second defendant dragged him through the open window of the car.
34 He asserts that he was repeatedly struck by the second defendant during the process in which the second defendant manually extracted him from his vehicle by pulling him through the open window of the vehicle. Given the force involved in the latter process I am satisfied that it is likely that both of the second named defendants’ hands must have been employed to achieve the process of the complainant’s extraction, such that it would have been impossible for the second defendant to contemporaneously assault the complainant by striking him.
35 In so far as the only relevant evidence by this witness involves his assertion that as the second defendant dragged him from the car he was simultaneously hitting him, I find his evidence to this issue to be totally unreliable.
36 Further, the admission by the witness that he pleaded guilty to two counts of resisting arrest, in my opinion, further undermines the reliability of the evidence of the witness to such a degree that it in my opinion has no probative value.
37 Given the statement in Velkoski that reliability plays a part in the relevant assessment in this instance, the evidence of both Ognjenovic and Wilson should be accorded little weight in the plaintiff’s application.
Harrie Lahy
38 I found Mr Lahy to be a largely credible witness. I am satisfied that a jury may accept his evidence that the behaviour of the second defendant was such as to cause him to fall to the ground in a manner such that his face made significant contact with the ground.
Samuel James Smith
39 I found Mr Smith to be a largely credible witness. While I am satisfied that the argument between he and his then girlfriend most probably involved raised voices as he followed her along St Kilda Road, I am satisfied that a jury could reasonably find that the second defendant inappropriately tackled him from behind in a manner similar to that described by Mr Lahy.
Charles Patrick Hilliard
40 Mr Hilliard struck me as an eccentric person. I am satisfied that a jury could accept his evidence as establishing that the first defendant (Robertson) struck him to the stomach with a torch and stole money from him
41 It is appropriate to note however that in my opinion none of the evidence of these three witnesses is in my opinion demonstrative of any tendency or pattern of behaviour similar to the behaviour which it is alleged the second defendant visited upon the plaintiff, namely a physical assault involving repeated punching.
Analysis of the evidence the subject of evidence the subject of Section 63(2) of the Evidence Act
42 For the purpose of the present analysis I will assume the all the evidence the subject of the plaintiff’s application is admissible. In assessing the evidence I have considered all of the evidence contained in the various witness statements. It is clear that much of that evidence has no relevance to the issues which I am required to determine given the pleadings in this instance.
43 Given the failure of the plaintiff to identify with any particularity the aspects of the evidence of each witness which demonstrates:
· the presence of a particular tendency; or
· a pattern of behaviour which allows coincidence reasoning to be employed;
I propose only to analyse the evidence in respect of which I am satisfied such a position is arguable. I undertake this process so for the sake of clarity, notwithstanding my finding to which I will later refer that the bulk of that evidence is inadmissible.
44 In so far as any allegations of assault arise, when the tendency and coincidence evidence sought to be relied by the plaintiff against each of the defendants under s63(2) of the Evidence Act is considered in the context of the allegations contained in the pleadings, for the purpose of determining whether the particular features of those previous acts renders the occurrence of the pleaded act to be proved more likely, I am of the opinion that the only similarities between:
(i) the features of the previous actions alleged against the second and third defendants; and
(ii) the alleged actions by the second and third defendants against the plaintiff which it is asserted the previous acts render more probable are as follows:
As to the pleading that the second defendant: Analysis as to the relevance of the evidence as demonstrating probative tendency or coincidence evidence
· Punched the plaintiff in the course of his arrest repeatedly with quick closed fisted punches to the face and nose area.[12]
· Dragged the plaintiff to the doorway and then down the stairs, at times by the hair.[13]
· Punched the plaintiff repeatedly to the head whilst he was handcuffed in the divisional van.[14]
The relevant prior activity alleged against the second defendant is found in the evidence of Andrew Ognjenovic and Andrew Wilson to which I have referred earlier.[15]
Given the absence of any similar allegation even in the absence of my finding as to the reliability of that evidence I am not satisfied that this evidence involves sufficient probative force to make it admissible.
Rather, in my view, any similarity between these incidents should be regarded as merely involving a commonality of some features.
It may be argued that the relevant prior activity alleged against the second defendant found in the evidence of Samuel Smith, Harrie Lahy and Charles Hillier, as I have commented earlier, fail to disclose any requisite degree of similarity to that conduct.
· Forcefully and deliberately punched the plaintiff in the head and face while holding the plaintiff by the hair whilst the plaintiff was a prisoner at the Flemington Police Station.[16] The relevant prior activity alleged against the second defendant is found in the evidence of; Andrew Ognjenovic who asserts he was punched numerous times whilst inside the cells[17]
Given the absence of any similar allegation even in the absence of my finding as to the reliability of Mr Ognjenovic I am not satisfied that this evidence involves sufficient probative force to make it admissible. Rather, in my view, any similarity between these incidents should be regarded as merely involving a commonality of some features.
As to the pleading that the third defendant: · Sprayed with capsicum spray without warning at close range directly into the face of the plaintiff.[18]
Behaviour of this type is unique to the arrest of the plaintiff. No such behaviour occurred in any of the evidence sought to be adduced as tendency evidence and that evidence, in my opinion, fails to establish the existence of any such tendency.
[12]See Further Further Amended Statement of Claim dated 15 May 2013, “Particulars” to paragraph 5
[13]See Further Further Amended Statement of Claim dated 15 May 2013, “Particulars” to paragraph 5
[14]Ibid
[15]See Second Supplementary Court Book of Complaint Documents, page 529 and transcript evidence of the witness
[16](ibid) , paragraph 7 and “Particulars” to paragraph 7
[17]See Second Supplementary Court Book of Complaint Documents, page 529 and transcript evidence of the witness
[18]See Further Further Amended Statement of Claim dated 15 May 2013, paragraph 7 and “Particulars” to paragraph 7
As to the pleadings against the second and third defendants that they: Analysis as to the relevance of the evidence as demonstrating probative tendency or coincidence evidence · Arrested the plaintiff without reasonable grounds for believing the Plaintiff had committed an indictable offence; and
· that the plaintiff was not informed of the reason for his arrest.[19]
The first ground of this pleading needs to be considered in the context of the defendant’s evidence as to the circumstances of their attendance at the scene and the information they received which generated their attendance which in my opinion is unique to that situation and is nowhere replicated to any significant degree in the prior evidence.
The second ground of this pleading needs to be considered in the context of the evidence by both the plaintiff and the defendants as set out in their statements as to the bedlam associated with the dispersal of capsicum spray at the time the arrest was made.
In my opinion there is a total dearth of prior activity which might considered to be in any way similar with respect to either defendant.
· Pushed the plaintiff’s face down to the ground, as he was handcuffed, so he could not breathe.[20] There is a total dearth of activity which might be considered to be in any way similar against the second defendant.
The relevant prior activity alleged against third defendant is found in the evidence of:
· Jeffrey Garth – who describes being pushed to ground facedown and handcuffed.[21]
· Stephen Bader – who describes being pushed to the ground and held down then punched in the nose.[22]
· Michael Fahry - who describes being forced to the ground and handcuffed.[23]
Given the:
· context in which each of these events occurred which involved the application of handcuffs to alleged a noncompliant person;
· absence of any similarity in the circumstances which gave rise to the application of handcuffs in which each of these incidents took place, when compared with that involved in the arrest of the plaintiff (which needs to be considered in the context of the circumstances which brought the second and third defendants to the plaintiff’s premises and which the dispersal of capsicum spray to which I have referred previously);
I am not satisfied that these incidents involve sufficient probative force to make them admissible. Rather, in my view, any similarity between these incidents should be regarded as merely involving a commonality of some features.
· Forcibly detained the plaintiff at Flemington Police Station[24] There is a total dearth of prior activity which might considered to be in any way similar against either defendant.
· Were instrumental in the plaintiff being charged with resisting police in the line of their duty[25] There is a total dearth of prior activity which might considered to be in any way similar against the second defendant.
The prior activity alleged to have relevance to this allegation as against the third defendant is largely confined to the statement of Geoffrey Garth, Andrew Wilson and perhaps Andrew Ognjenovic.
Whilst it may be alleged that this activity may have been present on other occasions it is unclear to me from the evidence as to whether this was so.
I am not satisfied that either:· the number of such allegations made in the prior evidence; or
· the level of evidence as to the circumstance in which such a charge was laid which lacks detail as to the outcome of the charge, (namely did it end in plea or a conviction, a withdrawal of the charge as a result of a plea bargain or otherwise withdrawn);
is such as to demonstrate a pattern of conduct which is in any way probative on this issue. Rather, in my view, any similarity between such incidents should be regarded as merely involving a commonality of some features.
· Engaged in punching/assaulting the plaintiff because he was African[26]
· The defendants engaged in treatment in a racist manner
These allegations fall into the category of mere allegations, the activity alleged against each defendant which make up the allegations being nowhere particularised.
There is a total dearth of prior activity which might considered to be in any way similar alleged against the second defendant.
The prior activity alleged to have relevance to this allegation as against the third defendant is largely confined to the following incidents;
· Ahmed Dini – was arrested and searched. The third defendant made the statements “African boys out of control” and “If you think this is American Ghetto we might as well go back to the African Jungle”. No assault.[27]
· Salim Mohamed – third defendant called the witness “fucken black guy”,[28] hit with a torch, humiliated him and did not arrest.
· Ghafour Wakil – was racially abused, not assaulted, detained for no reason
Given the:
· absence of similarity in which each of these individual events occurred; and
· the absence of any similarity in the circumstances in which each of these incidents took place, when compared with that involved in the arrest of the plaintiff;
I am not satisfied that these incidents involve sufficient probative force to make them admissible.
Rather, in my view the very highest any similarity between these incidents should be regarded as merely regarding a commonality of some features.[19](ibid) paragraphs 4 and 4A(a).
[20](ibid) , “Particulars” to paragraph 5
[21]See Second Joint Supplementary Court Book of Complaint Documents, pages 324-326
[22](ibid) pages 419-22.
[23](ibid) pages 430-431
[24](ibid) paragraph 6
[25](ibid) paragraphs 8-10 inclusive. “Particulars” to paragraph 9
[26](ibid) “Particulars” to paragraph 19
[27]See Second Joint Supplementary Court Book of Complaint Documents, pages 468-473
[28](ibid) page 512
45 I have undertaken the above analysis on the basis of the position favourable to the plaintiff, ignoring any issue as to the admissibility of the hearsay evidence which is relied upon to support the tendency or coincidence evidence.
46 On the basis of the above analysis I am not satisfied that any of the proposed tendency or coincidence evidence possesses sufficient probative value so as to justify its admission.
47 In my opinion:
·As to the acts relied upon to permit the application of tendency reasoning, the prior acts fail to 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.”
·As to features of the acts relied upon to permit the application of coincidence reasoning there are insufficient similarities in the prior alleged conduct of the defendants to reveal a pattern of conduct from which it may be inferred that either of the defendants carried out any relevant act relied upon by the plaintiff in this proceeding.
The application to admit evidence under Section 63(2)
48 Notwithstanding my finding above I will none the less rule upon the application that the hearsay evidence should be admitted under the provisions of s 63(2) of the Act in the context of my discretion to exclude evidence under s 135 of the Act
49 Before I do so it is appropriate that I make findings as to the hearsay evidence the admissibility of which is challenged on the basis that the provisions of s64(2) have not been made out namely the statements of:
· Stephen Bader
· Sam Alsamawi
· Quang Thao Tran
· Ghafoor Wakil
50 When the difference between:
(i) the level of investigation;
(ii) the attempts to locate the relevant person;
(iii) the success in locating the relevant person and the action taken to require his attendance to give evidence;
is considered as to the witnesses whose evidence falls in the category in which compliance is disputed and is compared with those in which it is not, I am not satisfied that the plaintiff has demonstrated a compliance with s64(2) with respect to the above witnesses and accordingly I am satisfied that their evidence should be excluded.
The application to rely upon the witness statements pursuant to Section 63(2) of the Evidence Act 2008 (as amended)
(i) In this instance, I am satisfied that it is appropriate to make a ruling that the evidence of any witness from whom tendency or coincidence evidence is sought to be adduced:
(i) who is not available to be cross examined; and
(ii) whose evidence is appropriately described as involving an aspect of evidence falling into both of the following categories;
§The witness by reason of the charges laid against him or her, a potential motive to make a false allegation that he or she had been unlawfully arrested or assaulted by one or other of the second and or third defendants;
§The allegations as to inappropriate conduct made by the witness against the second or third defendants are denied by them;
should be excluded.
51 I am satisfied in circumstances which apply in this instance that the probative value of such evidence in so far as these applications are concerned is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the second and third defendants.
52 I make that finding for the following reasons:
·Firstly, in each instance the defendants deny the allegations made against them and in those circumstances the reliability of each complaint is clearly in issue;
·Secondly, as police officers, the second and third defendants are entitled to use such force as is reasonably necessary to apprehend or detain an alleged offender and it is only where inappropriate force has been employed that it could be alleged that an unlawful arrest has occurred. Whether in any instance the relevant behavioural line has been crossed is dependent upon the factual scenario which pertains in any given instance. In circumstances where there is a denial of inappropriate conduct by the defendants, both the credibility and reliability of the party making the complaint and the respondent to the complaint becomes a critical factor for the tribunal which is required to determine the issue. The inability of a respondent to test those issues in my opinion occasions significant prejudice to the respondent.
·Thirdly, a complainant who has been arrested and or detained as the result of an alleged offence may well be motivated to make a false allegation that any injury sustained by him/ her in the process of his arrest or detention arose through inappropriate behaviour by a police officer for the purpose establishing a ground to attack the credibility of the officer and accordingly any charges which may be laid by the officer;
53 I am satisfied for these reasons that the inability of each of the defendants to cross-examine the maker of the hearsay statements which are potentially admissible in this application gives rise to prejudice of such significance that it substantially outweighs the probative value of the evidence. No better example of the relevant application of the process to which I have referred could arise than that involved in the evidence given in this instance by Mr Wilson or Mr Ognjenovic
54 It follows from this finding that much of the factual analysis I have undertaken becomes irrelevant and accordingly that the strength of my finding as to the inadmissibility of the alleged Tendency and Coincidence evidence in this instance is fortified.
The relevance of the discretion to exclude evidence under Section 135 of the Act
55 Finally I am satisfied that in the current circumstances, the breadth of the issues which arise by reason of the allegations and evidence associated with the tendency and coincidence notices is such that they would require, for any of the tendencies or coincidences to be established, the holding of multiple mini trials within the trial in the current proceeding, given the need to establish whether the activities involved in each incident the subject of the notices fell outside the authorised activity of a police officer or involved the requisite intention. In my opinion it would not be reasonable to attempt to make a finding as to the presence of such a tendency or coincidence in the absence of such a mode of inquiry.
56 For this reason I am satisfied that my discretion under s135 of the Evidence Act 2008 to refuse to admit evidence if the probative value of that evidence is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time should be exercised.
Conclusion
57 For the reasons set out above it follows that the applications by the plaintiff to adduce Tendency and or Coincidence evidence must fail.
58 I will hear the parties as to the costs order which should be made in this instance.
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