Elliott Puckett (a pseudonym)[1] v The Queen
[2019] VSCA 103
•15 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0031
| ELLIOTT PUCKETT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | KYROU, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 May 2019 |
| DATE OF JUDGMENT: | 15 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 103 |
| JUDGMENT APPEALED FROM: | DPP v [Puckett] (Unreported, County Court of Victoria, 14 November 2018) (Judge Gucciardo) |
---
CRIMINAL LAW – Procedure – Interlocutory appeal – Evidence – Admissibility – Decision affecting conduct at trial – Appellate court to decide on admissibility – Criminal Procedure Act 2009 s 295(3)(a), (b).
EVIDENCE – Admissibility – Sexual offences – Coincidence evidence – Sufficient similarity test – Consent in issue – Whether evidence lacked significant probative value – Whether probative value of evidence outweighed by prejudicial effect — Evidence Act 2008 ss 98(1), 101(2) considered — Application for leave to appeal granted and appeal allowed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr C Wareham | James Dowsley & Associates |
| For the Respondent: | Ms D Mandie | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
KAYE JA
NIALL JA:
The applicant is charged on indictment with one charge of assault with intent to commit aggravated rape (charge 1), assault with intent to rape (charge 2, alternative to charge 1), common assault (charge 3, alternative to charge 2), aggravated rape (charge 4) and rape (charge 5, alternative to charge 4). The offences were alleged to have taken place on 7 November 1982, when the applicant was 16 years of age. The complainant, LD, was then 39 years of age.
In 1990, the applicant was charged with a number of offences involving the sexual assault and rape of a different complainant, JS, on 14 December 1989 (‘the subsequent offending’). The applicant pleaded guilty to those offences, and was sentenced to a term of imprisonment in respect of them. In the present case, the prosecution has given notice to the applicant, pursuant to s 98(1)(a) of the Evidence Act 2008, that it intends to adduce evidence of the subsequent offending as coincidence evidence. Before the empanelment of the jury, the trial judge ruled that the evidence of the subsequent offending is admissible pursuant to s 98(1)(a) of the Act. Having been granted a certificate under s 295(3) of the Criminal Procedure Act 2009, the applicant seeks leave to appeal to this Court against that decision.
Circumstances of the alleged offending
The circumstances of the offending, alleged in the present case, are outlined in the summary of prosecution opening.
In 1982, the applicant was living in Bendigo Street Prahran a short distance from the scene of the alleged offences. On the evening in question, the complainant attended the Duke of York Hotel on the corner of Clifton and High Streets Prahran in company with her son and daughter. At about midnight, she left the hotel on her own, and started to walk to the home of a friend in South Yarra. She walked along Clifton Street and through the Princes Gardens. As she walked past the swimming pool, which was near Malvern Road, it is alleged that the applicant came up to her, grabbed her by her arms, and threw her onto the ground. When the complainant protested, the applicant slapped her across the face and said to her ‘Shut up and stop making so much noise. I’m not going to hurt you I’m just going to fuck you.’
The complainant then got off the ground and tried to get away from the applicant. He dragged her into bushes which were near a church, and hit her on the head, causing her to fall to the ground again. He then got on top of the complainant, held her hair with one hand, and ripped off her clothing with the other hand. The applicant grabbed the complainant’s breasts with his hand, and inserted his penis into her vagina. Having done so, he stood up, said ‘I’m finished now, I’ll see ya’, and walked off towards Bendigo Street. The complainant called for help, and the police arrived at the scene, assisted her, and took her to the Queen Victoria Hospital.
At the time, the police were unable to identify the alleged offender and did not proceed with the investigation. In 2013, the case was reopened as part of the Victoria Police Forensic Services Centre Cold Case Freezer Project. Samples taken from the complainant in 1982 were analysed and compared with DNA profiles on a national database. Preliminary results indicated a match with the applicant.
As a consequence, the police contacted the complainant, and subsequently contacted the applicant. On 3 May 2016, the applicant attended Melbourne West police station and was interviewed. In essence, he told police that, at that time, he had had a car accident, he had a ‘stuffed leg’, and he could not do anything. He said he had met women in the park and had sex with three or four of them with their permission. He told the police that on one occasion he had met a woman while walking through the park at night, that she smelt of alcohol, and they had a conversation. He said that he ‘put the hard word on her’, and she said ‘yeah all right’. The applicant told the police that accordingly he laid on the ground, the complainant got on top of him, and ‘fell off’. The applicant specifically denied raping the complainant. He told police that at the commencement of that incident she had walked up behind him and caught up to him, and they had started talking together.
In the defence response to the prosecution opening, the applicant does not put in issue that he took part in an act of sexual intercourse with the complainant on or about 6 November 1982. However, the circumstances of the alleged offending are in issue. In pre-trial argument, it is clear that, in accordance with the applicant’s record of interview, the central issues in the case will be whether the complainant consented, and whether the applicant was aware that she was not consenting, to the sexual acts that he performed upon her.
The subsequent offending
The circumstances of the subsequent offending, sought to be relied on by the prosecution, are apparently derived from the depositions in that matter, and are summarised in the notice pursuant to s 98(1)(a) of the Evidence Act.
On 14 December 1989, the 19 year old complainant, JS, was walking alone on Cromwell Street South Yarra late at night. At that point, Cromwell Street was well lit. JS heard footsteps behind her. About ten seconds later, the applicant grabbed her between the legs with his right hand, and at the same time he put his left hand across her chest pinning both her arms down. JS started to scream, but the applicant put his right hand over her mouth to muffle her cry for help. He put his left hand on her crotch, gripping her tightly. The applicant then grabbed JS around the face from behind and dragged her backwards to a courtyard. He pushed her onto her stomach, then pushed her onto her back, and put his hand across her mouth.
The applicant pushed JS’s head into a brick wall very hard and said ‘Are you going to shut up now?’ The applicant, with rough and forceful actions, pushed up JS’s skirt, and pulled down her stockings and underpants. He told JS ‘finger yourself’. JS submitted and obeyed the applicant’s command while he watched. He then stood up, undid his jeans, and directed JS to ‘suck me’. JS, who was terrified, complied with that demand. He then told her to get onto her front, and again JS complied. The applicant moved behind her and put his fingers in her vagina. After about 15 seconds, he then rubbed her vagina and anus with his finger, and put his penis inside her anus.
After about one minute, the applicant withdrew, and directed JS to ‘roll over’. JS complied. The applicant covered her eyes with his right hand, and put five fingers inside her vagina. After about 30 seconds, he covered JS’s face with her white top, and again put his five fingers inside her vagina. The applicant then sucked on and bit JS’s left breast. Shortly after doing so, he inserted his penis into her vagina. Having done so, he stood up and walked off.
The applicant was subsequently arrested, and interviewed by the police four days later. In his interview, he admitted that what he did to JS was without her consent. He gave a different account of some of the sexual acts that were performed on JS, but the differences were, principally, as to matters of detail rather than substance.
The notice pursuant to s 98(1)(a) of the Evidence Act 2008
In the notice given by the prosecution pursuant to s 98(1)(a) of the Evidence Act, it is stated that the facts in issue, that the prosecution seek to prove by the improbability of coincidence, are ‘… that the charged acts in the current matter occurred as alleged by the complainant’. The notice states that the prosecution will rely on eleven particular ‘points of similarity’ between the charged acts, and the subsequent offending. The notice then concludes:
The fact in issue in this trial is consent. The evidence of the complainant and the victim [JS] demonstrates significant similarities in the conduct of the accused, on different occasions, separated by a seven year period, which reveal a pattern from which it may be inferred that he did committed [sic] the charged acts.
In its written outline of submissions to the trial judge, the prosecution contended that the coincidence evidence demonstrated similarities ‘in conduct and surrounding circumstances’ in the alleged assault and rape of the complainant LD, and that of JS, such that it was improbable that ‘these two significantly similar events are merely coincidental’.
In particular, in the written submissions, the prosecution relied on four specific similarities between the two events, namely:
(a) Similar location, in Prahran and in public areas;
(b) The Accused approached complainant and victim from behind;
(c) Both complainant and victim were women walking alone, late at night, in well-lit areas;
(d) The facts and circumstances of the offending was (sic) similar:
(i) The Accused pushed and/or dragged both to a more secluded spot;
(ii) The Accused pushed both to the ground;
(iii) The Accused told both to shut up but was not deterred by their screaming;
(iv) The Accused penetrated the vaginas of both with his penis while behaving aggressively and violently towards both;
(v) The Accused was on top of both.
The judge’s ruling
In ruling that the evidence, of the subsequent offending, is admissible pursuant to s 98(1)(a) of the Evidence Act, the judge considered that there are ‘strong similarities’ between the subsequent offending (which was admitted) and the charged conduct, which creates ‘a sufficient connection between the episodes’. His Honour considered that the existence of dissimilarities between the two events do not diminish the probative value of the subsequent offending. His Honour considered that the fact that the applicant had admitted to the subsequent offending gives that evidence additional weight. Accordingly, his Honour held that the evidence has significant probative value as to the issues whether the applicant did the acts that were alleged by the prosecution and whether he did them with ‘a particular state of mind’, that is, knowing that the complainant did not consent to them.
The judge accepted that the admission of the evidence would have a ‘highly prejudicial effect’ on the applicant’s case, but his Honour considered that that prejudice was substantially outweighed by the probative value of the evidence that the prosecution sought to lead.
The ground of appeal
The ground upon which the applicant relies in support of his application for leave to appeal is as follows:
Ground 1:the learned trial judge erred by permitting the prosecution to adduce coincidence evidence in circumstances where:
(a)the evidence lacked significant probative value; and
(b)the probative value of the evidence was outweighed by its prejudicial effect.
Submissions
Counsel for the applicant submitted that the evidence, as to the subsequent offending, is not admissible, because there is no sufficient connection in time or circumstance between the subsequent offending, and the offending alleged in the present case, as to raise an issue of the improbability of coincidence. Counsel contended that the similarities, relied on by the prosecution, are so general that they reveal nothing distinctive about the particular acts that the applicant is alleged to have committed. Further, it was contended that the lack of any distinctive feature of the offending in the two instances, or any underlying unity, modus operandi or pattern of conduct, that is common to them, deprives the evidence of the subsequent offending of its ‘significant probative value’ in the present case. Rather, that evidence rises no higher than an invitation to the jury to engage in impermissible propensity reasoning.
Counsel for the applicant further submitted that if the evidence of the subsequent offending were admitted in the trial, the applicant would sustain significant prejudice, which could not be adequately offset or cured by any direction given by the judge to the jury. In particular, it was submitted, the evidence, if admitted, might be unfairly used by the jury by giving it more weight than it logically deserves. In addition, the evidence would have the potential to emotionally inflame the jury against the applicant. Accordingly, counsel submitted, any probative value of the evidence would not substantially outweigh the prejudicial effect it may have on the right of the applicant to a fair trial.
In response, counsel for the respondent contended that the judge was correct to conclude that the evidence of the subsequent offending is of significant probative value in respect of the facts in issue in the trial. In particular, counsel contended that the judge was correct to conclude that there is an underlying similarity and unity between the events described by the complainant, and the subsequent offending, which has the effect of rendering a mere coincidence between the two events to be improbable. In that respect, counsel contended that there are eleven similarities between the admitted conduct that comprised the subsequent offending, and the conduct which the complainant alleges was engaged in by the applicant in the present case. Counsel contended that the circumstance, that the two events took place seven years apart, is only one relevant factor, and does not substantially affect the probative value of the evidence of the subsequent offending.
Counsel for the respondent further submitted that the judge was correct to conclude that the probative value of the coincidence evidence substantially outweighs any prejudicial effect of it. In particular, it was contended, the evidence of the subsequent offending is stronger because it was admitted by the applicant, rather than being the subject of allegations by the victim that might be contested by the applicant. Counsel contended that the judge would be able to sufficiently offset any prejudicial effect, arising from the admission of the evidence of the subsequent offending, by cautioning the jury against engaging in impermissible propensity reasoning.
Analysis
In order that the evidence of the subsequent offending be admissible, it must, first, be relevant to an issue in the present proceeding. In other words, in terms of s 55(1) of the Evidence Act, it must be capable of rationally affecting the probability of the existence of a fact in issue in the proceeding.
In the present case, it is not in issue (in respect of charges 4 and 5) that the applicant had sexual intercourse with the complainant. Rather, in respect of those charges, the issue will be whether the prosecution can prove, beyond reasonable doubt, that the complainant did not consent to sexual intercourse with the applicant, and that the applicant was aware that the complainant was not consenting or that the complainant might not have been consenting. However, the critical issue in the trial — both in respect of those charges, and in respect of charges 1, 2 and 3 — will be whether the incident, in which the offences were alleged to have been committed, occurred in the circumstances described by the complainant.
If the prosecution can prove that the incident occurred in the manner described by the complainant, then it would follow that the complainant did not consent to sexual intercourse with the applicant, and that the applicant was aware that she was not consenting or might not be consenting. Equally, in such a case, it would follow that the offences, alleged in charges 1, 2 and 3, would be made out. On the other hand, if the incident occurred in the manner described by the applicant in his record of interview, or if the jury had a reasonable doubt as to that, then it would follow that the jury would not be satisfied, beyond reasonable doubt, that the complainant did not consent to sexual intercourse with the applicant, and it would have a reasonable doubt as to whether the applicant was aware that the complainant was not consenting or might not be consenting. In addition, the jury would have a reasonable doubt as to the offences alleged in charges 1, 2 and 3.
The prosecution seeks to have the evidence of the subsequent offending admitted pursuant to s 98(1) of the Evidence Act. That section provides:
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.
The admissibility of the coincidence evidence is also subject to s 101(2) of the Act, which provides as follows:
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The effect of those two provisions has been discussed in a number of previous decisions of this Court and of intermediate appellate courts of other States. For present purposes, the principles were sufficiently stated by this Court in Harris (A pseudonym) v The Queen,[2] in the following terms:
Coincidence evidence is an exception to the general principle that evidence of an earlier incident or event, involving or relating to an accused person, is not admissible to prove an element of an offence charged against the accused. The circumstances in which coincidence evidence is admissible, as an exception to that rule, are defined in ss 98 and 101 of the Evidence Act. The principles, relating to that exception, have been discussed in a number of previous decisions of this Court. For present purposes, they need only be briefly outlined.
In order that the evidence be admissible, the prosecution must demonstrate, first, that the similarities in the specified events, or in the circumstances in which they occurred, are such that it is improbable that the events occurred coincidentally. In that way, it must be demonstrated that the ‘coincidence evidence’ relied on has a significant probative value in respect of the fact or facts that are sought to be established. In other words, the improbability that the events occurred coincidentally, must be capable of rationally effecting the probability of the existence of a particular fact in issue to a significant extent.
…
As we stated, in order for the evidence to be admissible, s 98(1)(b) of the Evidence Act requires that it have ‘significant probative value’. For that purpose, it is not necessary that there is a relevant ‘striking similarity’ between the two or more events relied on as a basis for the coincidence evidence. Nevertheless, the similarities, between the events, must be such that the evidence has ‘significant probative value’ in respect of the fact in issue. That is, the probative value of the evidence must be far higher than ‘mere relevance’. In addition, s 101(2) provides that the coincidence evidence is not admissible, unless its probative value substantially outweighs any prejudicial effect it may have on the accused.[3]
[2](2015) 44 VR 652.
[3]Ibid [10]–[11], [13] (citations omitted); see also CGL v DPP (2018) 24 VR 486, 493 [22] (‘CGL’).
In considering the admissibility of the subsequent offending as coincidence evidence, in terms of s 98 and s 101, two other points need to be borne in mind. First, as a matter of authority, and logic, it is of no consequence that the coincidence evidence, that is sought to be adduced (in this case, the subsequent offending), concerned events that occurred after the events that are in question in the instant case.[4]
[4]Thompson v The Queen (1989) 169 CLR 1, 15 (Mason CJ and Dawson J), 31 (Brennan J), 32 (Deane J), 40 (Gaudron J); Pfennig v The Queen (1995) 182 CLR 461, 490 (Mason CJ, Deane and Dawson JJ).
Secondly, the fact that the victim, in the subsequent offending, did not consent, could not, of itself, be relevant to establish that the complainant, in the present case, herself did not consent.[5] As this Court noted in Jacobs:
… the evidence of one complainant’s lack of consent cannot inform the issue of consent in the case concerning another complainant.[6]
[5]Phillips v The Queen (2006) 225 CLR 303, 318 [47], 321 [56] (‘Phillips’); Jacobs v The Queen [2017] VSCA 309 [18], [43]–[46] (‘Jacobs’).
[6]Jacobs [2017] VSCA 309 [46].
It is for that reason that the focus in this case, as in any case, is on the question whether the events, as described by the complainant, are sufficiently similar to the circumstances of the subsequent offending, as to render it improbable that, as a matter of coincidence, the complainant has misdescribed or untruthfully described the incident in which the offences were alleged to have occurred.
In other words, the question is whether, given the circumstances in which the subsequent offending occurred, the similarities between those circumstances and the circumstances described by the complainant are such that it is improbable that, by coincidence, the complainant has falsely described the circumstances in which she alleges the offending occurred.[7]
[7]PWJ v DPP (2010) 27 VR 146, 149 [11]; Velkoski v The Queen (2014) 45 VR 680, 720 [174]; Hoch v The Queen (1988) 165 CLR 292, 295; R v Zhang (2005) 158 A Crim R 504, 514 (Basten JA).
As discussed, the prosecution has relied on four factors, which, it contends, are common to the subsequent offending and to the offending as described by the complainant.
The first factor, relied on, is that the two events took place in locations that were relatively close to each other. However, they occurred seven years apart, thus significantly diminishing the logical force of that point of similarity between the events.[8] That time interval, between the two events, makes it less improbable that, whereas the applicant performed non-consensual sexual acts on the victim JS in the Prahran area in 1989, the complainant LD has falsely claimed that the sexual actions, that the applicant engaged with her in that area seven years earlier in 1982, were not consensual.
[8]CGL 495 [30]; Papamitrou v R (2004) 7 VR 375, 390–1 (Winneke P).
The second and third points, relied on by the prosecution, were not accurately described by it in its outline of submissions to the trial judge. In respect of the second point, in her statement to the police, the complainant did not say that the applicant approached her from behind. She said that the incident commenced in the following manner:
The male person came from nowhere. I think he was in the bushes.
In respect of the third point, (and perhaps less relevantly), the prosecution relies on the fact that the complainant and the victim were both walking alone late at night in ‘well-lit areas’. While the complainant, in the present case, has stated that Princes Gardens was ‘fairly well lit up’, her statement does not describe the quality of the lighting at the point at which the incident itself occurred.
Further, as contended by counsel for the applicant, the second, third, and fourth points of similarity, relied on by the prosecution, are, regrettably, somewhat commonplace in the category of offending which may be described as ‘stranger rapes’.[9] There is nothing distinctive about the matters, described in those points, which, individually or collectively, would have the effect of rendering the hypothesis of coincidence, between the two described events, to be improbable to the degree required by s 98(1).
[9]Cf CGL v DPP (2010) 24 VR 486, 495 [31]; AE v The Queen [2008] NSWCCA 52 [42]; Phillips, 321 [56].
On the other hand, there are significant differences between the sexual acts performed by the applicant in the subsequent offending, as compared with the acts that he is alleged to have performed in the present case.
In the present case, it is alleged that after the complainant, LD, was dragged into the bushes, and fell to the ground for the second time, the applicant ripped off her clothing, grabbed her breasts with one hand, and then inserted his penis into her vagina. The contrast between those circumstances, and the acts performed by the applicant in the subsequent offending, is quite stark. In particular, in the subsequent offending, the applicant committed significantly more and different sexual acts in respect of the victim that preceded the act of penile vaginal penetration. They included forcing the victim to ‘finger’ herself, requiring her to perform an act of fellatio on him, digitally penetrating her vagina from behind, engaging in an act of penile anal rape, and then perpetrating an act of digital penetration while the complainant was on her back. All of those acts preceded the final act of penile vaginal penetration.
There were some other differences between the conduct of the applicant and the subsequent offending, as compared with the conduct that he is alleged to have engaged in in the present case. In the course of the subsequent offending, the applicant, at times, endeavoured to prevent JS being able to identify him, by covering her face with clothing. In the present case it is not alleged, by the complainant, that the applicant did that. In addition, in the course of and at the conclusion of the subsequent offending, the applicant engaged in some verbal communication with JS. For example, he asked her if she had previously had anal intercourse, whether she was a virgin, and whether she would ‘… mind coming for a drive with me in my car after’. When the incident was over, he asked her if she would remember his face, and whether she would tell the police. In the present case, it is not alleged, by the complainant, that the applicant engaged in any such verbal exchanges with her.
In addition, as a further point of difference, it is relevant that at the time at which the applicant engaged in the subsequent offending, he was 23 years of age, and was, as such, an adult. By contrast, at the time of the offending alleged in the present case, he was an adolescent, of 16 years of age. The difference in the ages of the applicant at the time of the two events, and more importantly the significant difference of the stage of life, which he was at, when the two events are alleged to have occurred, is a relevant point of differentiation. It is a plain fact of human nature that, not uncommonly, people act very differently as adults to the manner in which they acted as adolescents or when they were younger. The circumstance that the applicant engaged in non-consensual sexual acts in the subsequent offending when he was an adult, weakens the inference, sought to be drawn by the prosecution, that when he engaged in sexual intercourse with the complainant in the present case as a 16 year old adolescent, he similarly did so on a non-consensual basis.
Taking those matters together, the events constituting the subsequent offending did not possess sufficient similarities to the events as described by the complainant in the present case, as to render it improbable that the complainant has, by coincidence, falsely described the circumstances in which she and the applicant had sexual intercourse together. On the contrary, the circumstances were so materially dissimilar as to provide a weak foundation for the coincidence reasoning that is critical to the admissibility of evidence under s 98.[10] In particular, in light of those dissimilarities, and in light of the lack of material similarities between the two events, it could not, in our view, be maintained that the evidence, of the subsequent offending, would have significant probative value.
[10]Jacobs [50]–[51].
On the other hand, if the evidence of the subsequent offending were admitted in the trial, it would have a substantial unfair prejudicial effect on the right of the applicant to a fair trial for two reasons.
First, the evidence would have the potential to entice the jury to engage in impermissible propensity reasoning. Ordinarily, an appropriate judicial direction may be effective to offset that potential. However, in this case, given the florid circumstances in which the subsequent offending occurred, the curative effect of any such direction would be diminished.
Secondly, in light of the confronting and most degrading manner in which the subsequent offending was committed, there is a real risk that the jury might, in any event, be inflamed against the applicant in a manner which would be difficult to offset by appropriate direction. Counsel for the respondent submitted that that aspect, of the prejudice, might be allayed if the parties were to agree on a ‘neutral’ manner in which the evidence of the subsequent offending might be put before the jury. However, in whatever form the evidence is put before the jury, it would, in our view, be calculated to provoke a strong emotional reaction by the jury against the applicant. Further, it is the differences between the manner in which the subsequent offending actually took place, and the manner in which he is alleged to have offended against the complainant, that significantly weakens the inference sought to be drawn by the prosecution arising from the circumstances of the subsequent offending. If the evidence, of the subsequent offending, were put before the jury in a somewhat ‘neutral’ form, the applicant would be deprived, unfairly, of the opportunity to be able to demonstrate the substantial differences between the subsequent offending and the alleged offending in the present case, and thus he would be placed in an unfair forensic dilemma at the trial.
Accordingly, if the evidence of the subsequent offending were admitted, the probative value of it would not substantially outweigh any prejudicial effect it may have on the applicant. On the contrary, in our view, the prejudicial effect of that evidence would significantly outweigh any probative value that it might otherwise have.
Conclusions
For the foregoing reasons, we consider that the trial judge erred in concluding that the evidence, of the subsequent offending, is admissible under s 98(1)(a) of the Evidence Act.
Specifically, we consider that the judge erred in three respects. First, his Honour erred in concluding that the evidence, of the subsequent offending, would have significant probative value, due to the ‘strong similarities’ between the subsequent offending and the conduct that was alleged in the present case. The issue whether the subsequent offending was of any probative value at all, in the manner contemplated by s 98, was not agitated before us. However, assuming that it has any such probative value, in support of the improbability of coincidence between the two incidents (that is between the subsequent offending and the present offending as alleged by the complainant), it would, at most, be limited. Secondly, the judge erred in his assessment of the degree of prejudice which would be occasioned to the applicant should the evidence be admitted at trial. For the reasons we have stated, it is plain that, contrary to the view taken by the trial judge, such prejudice would be substantial and would not be capable of being meaningfully offset by an appropriate judicial direction. Thirdly, and for those reasons, the proposition, that the probative value of the evidence would substantially outweigh the prejudicial effect of it, is plainly untenable. On the contrary, the prejudice to the applicant, that would ensue from the admission of the evidence, would significantly outweigh any prejudicial value that it might have.
Accordingly, we will grant the applicant leave to appeal, and allow the appeal. In lieu of the ruling of the trial judge, we direct that the evidence of the subsequent offending by the applicant is not admissible in the trial.
- - - - -
0
11
0