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CW v The Queen

CW v The Queen

Case [2010] VSCA 288 28 October 2010

Appeal

Admissibility of Evidence

Coincidence evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0299

CW
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	MAXWELL P, BUCHANAN and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 September 2010
DATE OF ORDERS	27 September 2010
DATE OF REASONS	28 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 288
JUDGMENT APPEALED FROM	R v [CW] (Unreported, County Court of Victoria, Judge Thornton, 1 September 2010 (date of ruling) and 3 September 2010 (date of certificate))

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Coincidence evidence – Three fires lit in same area within short period – Whether evidence cross-admissible – Whether requisite degree of similarity – Whether ‘significant probative value’ – Animosity between accused and victim of each fire – Improbability of coincidence – Evidence cross-admissible – Application refused – Evidence Act 2008 (Vic) ss 98, 101.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown with Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr J P Wheelahan	Casey Criminal Law

MAXWELL P
BUCHANAN JA
NEAVE JA:

One night in June 2002, within a period of about four hours, fires were deliberately lit at three different commercial properties in Rosebud. The respective occupiers of the properties were:

·Roberts Carpet Court (‘fire A’);
·Rosebud Carpet (‘fire B’); and
·K & N Norris Real Estate (‘fire C’).

The applicant is charged with committing each of these acts of arson. He also faces one count of attempting to pervert the course of justice by fabricating evidence to implicate one of his former apprentices in these acts.

The prosecution seeks to rely, in its case against the applicant in respect of each fire, on the evidence relating to each of the two other fires. To this end, the prosecution has served a coincidence notice under s 98(1)(a) of the Evidence Act 2008 (Vic) (‘EA’). On 1 September 2010, Judge Thornton ruled that the evidence on the respective arson counts was cross-admissible as coincidence evidence.

The applicant now seeks leave to appeal against that decision. Her Honour has granted a certificate under s 295(3)(a) of the Criminal Procedure Act 2009 (Vic). It was common ground that, if the evidence the subject of the ruling were ruled inadmissible, the prosecution case on the second and third counts of arson would be eliminated.

After hearing argument, we concluded that the application for leave to appeal should be refused. We said that we would publish our reasons subsequently. These are those reasons.

The admissibility of coincidence evidence

It is to be recalled that s 98(1) of the EA is concerned with whether evidence that two or more events occurred should be admitted in order to prove ‘that a person did a particular act or had a particular state of mind’. The basis of admissibility with which the section is concerned is that, by reason of similarities between the events and/or the circumstances in which they occurred, it is improbable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CW v The Queen

Details

AGLC: CW v The Queen [2010] VSCA 288
Case: [2010] VSCA 288
Decision Date: 28 October 2010

CaseChat Overview and Summary

The case of CW v The Queen involved an interlocutory appeal against the admissibility of coincidence evidence in a criminal trial. The accused, CW, was facing charges related to three separate fires that occurred in the same area within a short time frame. The trial judge had excluded the coincidence evidence from being presented to the jury, a decision CW sought to challenge through this appeal. The appeal was heard by the Court of Appeal in Victoria.

The primary legal issue was whether the evidence of the three fires, which all occurred in the same area within a short period, was cross-admissible under the Evidence Act 2008 (Vic). The court had to determine whether the evidence had a requisite degree of similarity and whether it possessed significant probative value. Additionally, the court considered the animosity between the accused and the victims of each fire and the improbability of such coincidences occurring by chance.

The Court of Appeal found that the evidence of the three fires was indeed cross-admissible. The court held that the fires shared a sufficient degree of similarity and possessed significant probative value, particularly in light of the animosity between the accused and the victims and the improbability of such coincidences occurring by chance. The court concluded that the trial judge had erred in excluding the evidence and quashed the decision, allowing the evidence to be presented to the jury. The appeal was ultimately dismissed, but the door was opened for the evidence to be considered in the trial.

The court did not make any final orders regarding the case itself, as the appeal was interlocutory. However, the decision to admit the coincidence evidence had significant implications for the trial and the potential outcome of the case against CW.

Orders