Feng v The King; Director of Public Prosecutions v Feng

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0023

WEI FENG	Applicant
v
THE KING	Respondent

S EAPCR 2022 0098

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
WEI FENG	Respondent

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JUDGES:	EMERTON P, PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2023
DATE OF JUDGMENT:	24 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 196
JUDGMENT APPEALED FROM:	DPP v Wei Feng (Unreported, County Court of Victoria, 8 July 2023, Judge Gucciardo) (Conviction); [2022] VCC 948 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Rape and associated offences – Multiple complainants – Coincidence evidence – Evidence in some cases to prove identity and others to establish non-fabrication – Judge’s directions conflated use of evidence – Risk that coincidence evidence used for an impermissible purpose – Extension of time granted – Appeal allowed – New trial ordered.

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Counsel
Applicant/Respondent:		Ms G Connelly
Appellant/Respondent:		Ms D Piekusis KC with Mr E Dober
Solicitors
Applicant/Respondent:	Valos Black & Associates
Respondent/Appellant:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA
KENNEDY JA:

Introduction

An indictment filed in the County Court against Wei Feng (for convenience, ‘the applicant’), now aged 51 years,[1] contained 13 charges: five charges of rape (charges 1, 2, 3, 8 and 13); two charges of false imprisonment (charges 4 and 7); two charges of assault with intent to commit a sexual offence (charges 5 and 10); one charge of recklessly causing injury (charge 6); one charge of sexual assault by compelling sexual touching (charge 9); and two charges of sexual assault (charges 11 and 12).
[1]His date of birth is 23 March 1972.
The charges related to six female complainants: ‘AKP’ (one charge – charge 1); ‘MJR’ (two charges – charges 2 and 3); ‘SE’ (two charges – charges 4 and 5); ‘BJC’ (one charge – charges 6); ‘SAB’ (two charges – charges 7 and 8); and ‘KFH’ (five charges – charges 9 to 13). At relevant times, five of the complainants — AKP, MJR, SE, BJC and SAB — were sex workers, operating in streets in the St Kilda area.
On 8 July 2021, a jury empanelled to try the applicant found him guilty of all charges relating to MJR, SE, BJC and KFH. The jury were unable to agree on a verdict in relation to the charge involving AKP (charge 1), and found the applicant not guilty in relation to the charges involving SAB (charges 7 and 8).
On 27 June 2022, the trial judge imposed a total effective sentence of 14 years’ imprisonment upon the applicant, with a non-parole period of 10 years.
By an application filed on 21 February 2023, the applicant seeks an extension of time within which to file a notice of application for leave to appeal against conviction; and, if that application succeeds, seeks leave to appeal against conviction.
The Director of Public Prosecutions (‘DPP’) appeals against the sentence imposed upon the applicant.
With respect to his conviction, the applicant ultimately relied on two grounds of appeal:[2]
1 A substantial miscarriage of justice was occasioned by:
(a) the prosecution being permitted to invite the jury to rely on coincidence reasoning for purposes beyond those permitted by pretrial ruling;
(b) the trial judge directing the jury that it could rely on coincidence reasoning for purposes beyond those permitted by the pre-trial ruling; and
(c) the trial judge’s erroneous and insufficient directions on the use of reasoning from coincidence.

2 A substantial miscarriage of justice was occasioned by the erroneous decision to permit use of the evidence of [KFH] as coincidence evidence and the failure to order that the trial of charges 9–13 take place separately from the trial of the other charges.
[2]Two further grounds, which were limited to the conviction on charge 4 (the charge of false imprisonment relating to SE), were abandoned during the hearing in this Court when the Court drew attention to s 277(3) of the Criminal Procedure Act 2009, and R v McL [1999] 1 VR 746 and McL v The Queen (2000) 203 CLR 452.

The DPP relies on a single ground, which contends that ‘the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period are manifestly inadequate’.
For the reasons that follow, we would grant the applications for an extension of time and for leave to appeal; allow the appeal; set aside the applicant’s convictions; and order that there be a new trial. It is thus unnecessary to consider the DPP’s appeal.

Factual overview

The applicant is of Chinese heritage. He was born in Hong Kong in 1972 and migrated to Australia with his family when aged 12 years. At relevant times he lived in Sunshine with his wife and young daughter, and was the registered owner of a 2008 grey Suzuki ‘Swift’, registration WGW186, fitted with a rear child seat. On 27 March 2013, he hired a 2012 silver Toyota sedan.
The 13 charges against the applicant arose from six separate incidents. Identity was in issue on the charges relating to MJR (charges 2 and 3), BJC (charge 6) and SAB (charges 7 and 8), but not in relation to the charges involving AKP (charge 1), SE (charges 4 and 5) and KFH (charges 9 to 13).
In brief overview, the events founding the charges were as follows.

Charge 1: AKP – Jury unable to agree on verdict

On Wednesday 26 March 2013, AKP was working as a sex worker in Greeves Street, St Kilda. At about 10.00 or 11.00 pm, the applicant engaged AKP to perform a ‘hand-job’ on him for the negotiated fee of $40.00. AKP got into the car, and the applicant drove her in a grey Toyota sedan to a location near the river, just off Barkly Street (albeit that AKP did not agree with that as a suitable location). It seems that the hand-job was ‘not working’ — the applicant could not maintain an erection or ejaculate — and he became angry and frustrated. The applicant yelled at AKP and pushed her out of the car saying, ‘I’m gonna rape you now’. He then got out of the car, put his hands around AKP’s throat and swung her to the ground.
As AKP lay on the ground on her stomach the applicant put his penis into her anus (charge 1). She repeatedly told him to stop, but he slapped her in the face while holding her throat. This went on for about ten minutes until police arrived. The applicant stopped what he was doing and told the police that AKP was his acquaintance. AKP complained to police, however, that she had been raped. Police then handcuffed the applicant. The applicant told police that AKP had threatened falsely to allege rape if he did not pay her for the failed hand-job. Among other things, the defence case was that the location was chosen to afford some privacy; that the applicant was angry at himself and not AKP; and that there was no violence and no anal penetration. AKP, who admitted that she had been using ‘ice’ at the time, was medically examined, and was found to have sustained bruising to her face and legs.
Identity was not in issue on this charge.

Charges 2 and 3: MJR – Verdicts of guilty

On 11 January 2014, MJR was working as a sex worker in St Kilda. The applicant was driving around generally yelling abuse. He called MJR a ‘dog’ and said he had a gun. She called ‘000’ emergency services, reported that he was driving a small grey hatchback and gave a partial registration number of the car.
MJR was again working as a sex worker in the St Kilda area in 2015 when she got into the applicant’s car. He grabbed her bag and told her he would not be paying. The applicant then drove MJR to a location of his choosing, which was a lane in Elwood, beside a riverbank. He there produced a knife and threatened to shoot her. The applicant forced MJR’s head down onto his penis and penetrated her mouth (charge 2) and then her vagina (charge 3) with his penis, slapping her while doing so. MJR got out and ran away when there was a noise and the applicant unlocked the doors.
On an occasion after this, MJR again saw the applicant in St Kilda while she was working. He yelled at her from his car calling her a ‘dog’ for going to the police.
The applicant’s defence was that MJR’s purported recognition of him was mistaken, and was based on an assumption drawn from the 2014 incident.

Charges 4 and 5: SE – Verdicts of guilty

On 7 July 2016, SE was working as a sex worker in St Kilda. She agreed to provide oral sex to the applicant, who was driving a four door grey Suzuki Swift, and got into his car. The applicant stopped to get petrol before continuing. While in transit to the applicant’s preferred location for the negotiated sexual activity, SE told the applicant that he was going too far and to take her back, but he refused to stop or turn around and continued to a location in a laneway in Elwood (charge 4). Once there, the applicant undid his pants and pulled his penis out and pulled SE’s head forcefully to his crotch (charge 5). SE said ‘no’, however, and told him that he first had to pay and wear a condom. The applicant became angry and told SE to get out of the car. SE insisted instead that the applicant take her back. It seems that the applicant then thought that SE was reaching for a weapon and a struggle ensued in which SE’s bracelet was broken. The applicant was violent and slapped SE’s face. Eventually, he agreed to drive her back but she jumped out of the car in Barkly Street. She called police.
At a special hearing in which SE’s evidence was pre-recorded, the applicant’s counsel appeared to put identification in issue. By the time of the trial, however, the issues had become whether SE was detained, and whether physical contact was pursuant to an agreement to provide sexual services prior to any dispute arising.

Charge 6: BJC – Verdict of guilty

On 14 November 2016, BJC was working as a sex worker in St Kilda near the corner of Carlisle and Greeves Streets. She approached a gunmetal grey Suzuki Swift, registration WGW148, and spoke to the driver— an Asian male in his late 30’s or early 40’s — through the driver’s side window. There was a child’s booster seat in the rear of the car. The male requested unprotected oral and vaginal sex and became agitated when BJC refused. He also wanted to go to Richmond where he lived and was again angry when BJC refused. The male then put a handcuff around BJC’s right wrist, called her names and pulled her upper body into the car. Her head was in the male’s groin. At the same time, the male started to drive. He pulled BJC’s hair, taking chunks out. Her legs were hanging out the window, and became grazed and bleeding. BJC was in pain and she screamed. Eventually the male stopped the car. BJC was able to break free of his grip and he threw her backwards so that she landed in the gutter (charge 6). The male then drove off down Greeves Street towards Inkerman Street.
BJC called ‘000’. Police did not attend, but she later told patrolling police what had happened. She saw a vehicle that she thought might have been the male’s and pointed it out to police. It was the applicant’s vehicle, and he was behind the wheel.
Injuries to BJC’s ankle and leg sustained in the incident later became infected and swollen. In February 2017, she sought medical assistance, which resulted in surgery. BJC was placed on antibiotics and required further medical treatment in the following months.
Identity was in issue at trial. The defence case was that the applicant was not the male who had offended against BJC.
Around Christmas 2016, BJC again saw the male in St Kilda and told another girl not to get in his car. The male yelled abuse at her. BJC saw the same vehicle in Sunshine in January 2017, and the male driver had his wife and kids in the car. And on 11 January 2017, BJC once more saw the car and male in St Kilda while she was working. The male yelled abuse at her and threatened to kill her.

Charges 7 and 8: SAB – Verdicts of not guilty

In January 2017, SAB was working as a sex worker in St Kilda. At approximately 2.00 or 3.00 am, she got into a small silver car on the corner of Gurner and Grey Streets. The driver was an Asian male around 35 years old, and the car had a baby seat in the back. SAB agreed to provide a ‘full service’ — oral and vaginal sex — for $100.00. As they were driving to the driver’s ‘spot’, his mood seemed to change and SAB told him she no longer wished to perform the service. She tried to open her door but it was locked (charge 7). SAB had not locked her door, the controls for the door lock being located on the driver’s side of the car. The driver said, ‘It’s okay, I pay you, I pay you’. He stopped the car in a residential street. The male told her that ‘he liked to be dominated’ and asked her to give him oral sex. SAB refused. The male grabbed her by her hair and she performed oral sex whilst he forcefully kept his hand on the back of her head. He refused to wear a condom (charge 8). Eventually the driver let SAB out of the car and she ran off without receiving any payment.
On 9 May 2017, police showed SAB a photoboard containing a photograph of the applicant. She told police that she did not think the driver was in it.
SAB was not cross-examined at the special hearing because the applicant was at that time unrepresented.

Charges 9 to 13: KFH – Verdicts of guilty

On Sunday 26 February 2017, at approximately 10.00 pm, KFH — who was not a sex worker — was on foot in Devonshire Road, Sunshine, trying to contact a friend by telephone. A grey Suzuki Swift driven by the applicant pulled up. There was a baby seat in the rear of the car. The applicant asked for a lighter. KFH looked in her bag but was unable to find one. The applicant said that he knew her but she did not recognise him. After the applicant opened the passenger door and gestured as if something had fallen from the car, KFH stepped closer to the car to look. The applicant then pulled her into the car by the arm. He said, ‘Get in the car, I’ll shoot you’. The applicant then drove off, still holding KFH by the wrist, and locked the doors of the car.
The applicant drove around for about 40 minutes until he was pulled over by police. He threatened KFH, telling her not to open her mouth or he would shoot her. Police conducted checks and took down the applicant’s and KFH’s names, before letting them go. The applicant drove around before pulling over near an oval or vacant block. He pushed KFH into different parts of the car, and tried to kiss her and touched her breasts. During the ensuing events, in which the applicant choked and slapped KFH and tied her hands together with her top while she continually struggled, he forced her hand onto his penis (charge 9); grabbed her by the hair and forced her head into his groin, attempting to put her mouth onto his penis (charge 10); touched her breasts (charge 11) and her vagina (charge 12); and put his finger into her anus (charge 13).
KFH told the applicant she was not a ‘hooker’ and he said he would pay her. The applicant eventually gave up, returned KFH’s bag and unlocked the doors. She got out of the car and passing cyclists found her in a state of distress.
Identification was not in issue at trial. KFH was cross-examined to the effect that she entered the car by agreement to perform sexual services; that there was a dispute about payment; and that KFH said she would not leave until he paid her. It was then that the applicant abused her and told her to get out of the car.

Conviction ground 1: Errors with respect to coincidence reasoning

Ruling on the use of coincidence evidence

Turning to consider the first ground, in 2018 the prosecution filed a Notice pursuant to s 98(1) of the Evidence Act 2008 (‘the Act’) flagging its intention to rely on coincidence evidence. That Notice was followed by a second, Amended Notice under s 98(1), dated 29 October 2018 (‘the second notice’).
At the time that the second notice was filed, the applicant’s Defence Response[3] made it clear that identity was in issue only in relation to the charges involving SAB (charges 7 and 8). In relation to the other five complainants, threats, violence and force, confinement against will and non-consensual sexual activity were denied; although in the case of AKP (charge 1), penetration was denied, and in the case of KFH, penetration (on charge 13) was not admitted. Significantly, however, by the time of the applicant’s trial, identity had also become an issue in relation to the charges relating to MJR (charges 2 and 3) and BJC (charge 6). Hence, at trial, the ‘defence’ with respect to the charges involving MJR, BJC and SAB was that the applicant was not the offender; whereas, with respect to the charges involving AKP, SE and KFH, the defence was that the applicant was engaged in a commercial transaction for sexual services, and that anything that occurred — which was not necessarily all that the complainants alleged — was consensual.
[3]See Criminal Procedure Act 2009, s 183.
Based on the case as it stood when the second notice was filed, by written submissions dated 31 October 2018, the applicant sought severance of the indictment, and a separate trial of the charges relating to each complainant. In broad terms, counsel for the applicant contended that: there was scant similarity between the acts alleged by each complainant, other than the fact that in some instances the same general location is St Kilda and the same make of car was involved, and the alleged assailant was an Asian male; the conduct alleged by each complainant was dissimilar; and the evidence suggested concoction or collusion between the complainants.
After entertaining both oral and written submissions, by a ruling given on 8 November 2018 (‘the coincidence ruling’), a judge — not the judge who ultimately presided over the applicant’s trial — refused severance of the indictment, and, in so doing, determined the use to which the coincidence evidence relied upon by the prosecution could be put. In her ruling, the judge said that the coincidence evidence relied upon was admissible for the purpose of ‘the jury’s consideration whether the complainants have given truthful evidence’. She then went on:[4]
However, given the limitation upon the admissibility of coincidence evidence expressed most recently in Jacobs,^[[5]] that is that it is not permissible to use the evidence of other complainants to draw an inference about a particular complainant’s state of mind, the admissibility in relation to those five complainants, that is the mutual admissibility in relation to those five complainants, is limited to the prosecution’s reliance on the circumstances described by the complainants that do not relate directly to each complainant’s consent to sexual acts.
As I have stated, this is the abrupt change in the accused’s presentation in circumstances where they were confined and/or isolated. All five described the accused spontaneously becoming angry and abusive. All five then describe the accused’s use of threats or violence. I intend to warn the jury in terms against substituting that evidence for a proper consideration of whether each charge is found proven beyond reasonable doubt, given the presumption of innocence and the issues identified by the defence in the conduct of the trial in the defence response.
In relation to the complainant [SAB], the issue is not consent or any variant. It is identity. Accordingly, my consideration of the admissibility of that coincidence evidence is not limited by the reasoning in Jacobs and Phillips.^[[6]] As I have outlined in detail above, [SAB] describes circumstances and events which are strikingly similar to the other complainants, including her sex work in St Kilda during the period described by the other women who negotiated sex for fee with an Asian man of similar age to the description given by the other women and got into a little silver car with a baby seat, as described by [SAB] and [KFH] in relation to the specifics of the baby seat.
As with the [coincidence] evidence between the five other complainants she, then, describes an abrupt change in the accused’s presentation in circumstances where she was confined. As in relation to the other five, she describes the accused spontaneously becoming angry and abusive. As with the other five, she describes the accused using threats and violence.
In both instances, that is in relation to the five in which identity is not an issue and the one in which identify is an issue, the coincidence evidence has significant probative value, either, by itself or having regard to other evidence adduced or to be adduced by the prosecution. The coincidence evidence described is therefore admissible under the coincidence rule. But in relation to the allegation made by [SAB], it’s admissible on a slightly different basis and that is to prove that it was the accused who committed the offence, in addition to the way in which I’ve described the evidence as being admissible in relation to the other five.
[4]Emphasis added.
[5]Jacobs (a pseudonym) v The Queen [2017] VSCA 309 (Maxwell P , Ashley JA and T Forrest AJA).
[6]Phillips v The Queen (2006) 225 CLR 303.

Hence, the judge ruled that the coincidence evidence was admissible, first, as bearing on the truthfulness of the complainants’ accounts, and, secondly, in the case of SAB, to prove identity. She then rejected the possibility of concoction or collusion, and said that, having concluded that the coincidence evidence was cross-admissible in relation to all complainants, there was ‘no utility in ordering separate trials’. Significantly, the coincidence ruling did not purport to deal with the admissibility of coincidence evidence in order to prove identity on the charges relating to MJR (charges 2 and 3) and BJC (charge 6), since identity had not at that stage been put in issue on those charges.
We pause to note that, some months after the coincidence ruling was delivered, all of the complainants — save for SAB — gave evidence in a special hearing[7] on various days throughout July 2019, in the course of which they were cross-examined by counsel for the applicant. On 28 November 2019, however, the day that the special hearing with respect to SAB’s evidence was to be conducted, the applicant discharged his counsel.[8] As a result, SAB gave evidence in the special hearing but, given her status as a ‘protected witness’, was not cross-examined.[9] By the time a jury was empanelled, on 21 June 2021, the applicant was once more represented by counsel.
[7]See Criminal Procedure Act 2009, s 370.
[8]It appears that SAB was not available to give evidence at the time that the other complainants did in July 2019 because of illness.
[9]See Criminal Procedure Act 2009, s 356.
We also pause to note that, shortly prior to SAB giving evidence at the special hearing, the prosecution filed a third Notice pursuant to s 98(1) — a Further Amended Notice — dated 18 November 2019. That third notice made it clear that coincidence reasoning was relied upon to establish the identity of the offender only on the charges involving SAB (charges 7 and 8, upon which the applicant ultimately was acquitted). No further notice under s 98(1) was filed by the prosecution giving notice that the prosecution also sought to rely on coincidence reasoning in order to prove identity on the charges relating to MJR (charges 2 and 3) and BJC (charge 6).

The submissions of the parties in this Court

In support of the first ground, counsel for the applicant submitted that, in her closing address, the prosecutor did not observe the confines set for the coincidence evidence by the coincidence ruling, and invited the jury to reason from asserted similarities in the alleged offending towards proof of each offence as a whole. The problem was not rectified — indeed, was reinforced — by the judge’s directions to the jury. Instead, the judge directed that the complainants’ evidence was ‘mutually supporting’,[10] and that, ‘[i]n making a decision as to the facts and [the applicant’s] actions, you can use coincidence evidence even in those circumstances’.[11] So much enabled coincidence reasoning at large.
[10]See [59] below.
[11]See [60] below.
Counsel for the applicant submitted that the judge’s directions permitted the jury to draw on such similarities as they found existed impermissibly to reach conclusions as to consent and the complainants’ states of mind. Moreover, the judge did not relate the evidence to the facts in issue. No distinction was drawn between the evidence that bore on identification and the evidence bearing on whether particular acts occurred. At no point did the judge draw the jury’s attention to any of the dissimilarities in the evidence. Hence, what the jury was left with was a general invitation to rely on all the evidence of each complainant to prove all facts in issue in respect of each offence. Finally, counsel contended that the absence of exception by either counsel cannot be determinative of the success of this ground of appeal.
The respondent’s counsel submitted that the judge’s directions did not leave coincidence reasoning to the jury at large, and was clear about how the prosecution sought to use the coincidence evidence. Counsel submitted that a fair reading of the judge’s charge reveals that the jury could have been in no doubt as to how it was permitted to use coincidence evidence. Thus, it cannot properly be asserted that the jury would have been drawn to reach conclusions about consent or the complainants’ states of mind from the coincidence evidence. The assertion that the directions were deficient is answered by the failure to take exception.

Analysis

Any analysis of the first ground must commence with ss 98(1) and 101(2) of the Act.
So far as relevant, s 98(1) provides:
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—
…
(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.
And s 101(2) provides that ‘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’.
Coincidence evidence under s 98 may be used to prove that an accused person ‘did a particular act’ or ‘had a particular state of mind’. It relies on the 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, to found an inference that the events did not occur coincidentally. Coincidence reasoning bears on the improbability that different events occurred coincidentally having regard to the similarities between the events or the circumstances in which they occurred. By its terms, s 98(1) regulates the use of evidence of ‘2 or more events’, and, in defined circumstances, permits an inference to be drawn that, because it was improbable that the two or more events occurred coincidentally, a person must have acted or thought in a particular way (that is, ‘[done] a particular act or had a particular state of mind’). As Simpson J (with whom McClellan CJ at CL and Fullerton J agreed) observed in Gale:[12]
[25]At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
•     two or more events occurred; and
•     there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and
•     having regard to those similarities, it is improbable that the two events occurred coincidentally;
•     therefore the person in question did a particular act or had a particular state of mind.
[12]R v Gale; R v Duckworth (2012) 217 A Crim R 487, 494 [25] (‘Gale’).
Among other things, coincidence reasoning may be relied upon to establish the identity of an offender,[13] or to demonstrate the improbability of different complainants making similar allegations against an accused unless they were true.[14] As was said in CV:[15]
[9]Although coincidence reasoning — the improbability that different events occurred coincidentally having regard to the similarities in the events or in the circumstances in which they occurred — owes its origins to similar fact reasoning at common law, which required the evidence to possess ‘striking similarity’, it is not necessary that the evidence possess that specific characteristic. The probative value of evidence may not lie in it displaying a ‘striking similarity’, ‘system’ or ‘pattern’, all of which might require the identification of points of similarity or in there being an ‘underlying unity’ in the events relied upon.[16] In Phillips v The Queen,[17] the High Court considered whether the evidence of five different complainants who alleged they were raped by the appellant was cross-admissible as similar fact evidence under s 132A of the Evidence Act 1997 (Qld). In the joint judgment of the Court, it was observed that it was not a necessary condition for admissibility that the features of striking similarity, underlying unity, or pattern or signature system need be present so long as for some identifiable reason the high probative value necessary to overcome prejudice existed.[18]
[10]There may be such a relationship between the events in purpose, circumstances and mode of conduct that coincidence reasoning will be open. The necessary relationship is not confined to events, each of which possesses unusual characteristics in its execution. The evidence of each may provide strong support for the others, making it just to admit them all notwithstanding the prejudicial effect of admitting the evidence.[19]
[11]The cogency and significance of the events or the surrounding circumstances will depend on the issue to be proved, as well as on the nature of the evidence. The issue may be whether a particular person committed the acts, whether the acts were committed at all, or the state of mind of the person performing the acts. Crown notices of coincidence reasoning generally include ‘state of mind’ as an issue to which the evidence the subject of the notice is directed. Where the offences charged do not require proof that a specific intent accompanied the actus reus of the offence, the primary issue will most often be whether the events the subject of the coincidence evidence occurred or the identity of the person who committed the acts, the intention of the person to commit the acts rarely being a real issue.
[13]See, e.g., Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Patton (a pseudonym) v The Queen [2021] VSCA 104.
[14]See, e.g., Saoud v The Queen (2014) 87 NSWLR 481, 490–1 [43]; Addo v The Queen (2022) 108 NSWLR 522, 535–6 [67]–[69].
[15]CV v The Queen [2014] VSCA 58, [9]–[11] (Redlich and Osborn JJA and Sifris AJA) (‘CV’).
[16]Thompson v The Queen (1989) 169 CLR 1, 39–40 (Gaudron J).
[17](2006) 225 CLR 303.
[18]KRI v The Queen (2011) 207 A Crim R 552; GBF v The Queen [2010] VSCA 135, [28]; R v Ford (2009) 201 A Crim R 451, 465-6 [38]; R v PWD (2010) 205 A Crim R 75, 87-8 [64]–[65].
[19]DPP v P [1991] 2 AC 447, 462 (Lord Mackay of Clashfern LC).
Although ground 1 is largely concerned with the inadequacy of the judge’s directions concerning its use, it is worthwhile considering the steps for determining the admissibility of coincidence evidence, since — subject to the provisions of the Jury Directions Act 2015 (‘JDA’) to which we will come — those steps will go some way in informing the requirements of any directions that must be given on the use of such evidence. In Gale, Simpson J (once more with the agreement of McClellan CJ at CL and Fullerton J) said:[20]
[20]Gale, 495–6 [30]–[31]. See also Xie v The Queen (2021) 386 ALR 371, 566–7 [780].
[30]The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:
•     that there is evidence capable of establishing the occurrence of two or more events; and
•     that there is evidence capable of establishing similarities in the two or more events; or
•     that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
•     that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
[31]In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
•     the first step is to identify the ‘particular act of a person’ or the ‘particular state of mind of a person’ that the party tendering the evidence seeks to prove;
•     the second step is to identify the ‘two or more events’ from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the ‘particular act’ or had the ‘particular state of mind’;
•     the third step is to identify the ‘similarities in the events’ and/or the ‘similarities in the circumstances in which the events occurred’ by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
•     the fourth step is to determine whether ‘reasonable notice’ has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
•     the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, ‘have significant probative value’;
•     in a criminal proceeding, if it is determined that the evidence would have ‘significant probative value’, the sixth step is the determination whether the probative value of the evidence ‘substantially outweighs’ any prejudicial effect it may have on the defendant (s 101(2));
•     the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
Plainly, the directions that a trial judge is required to give to a jury will differ according to the issue that the evidence is introduced to prove. To risk repetition, in this case the evidence was introduced by the prosecution on some charges to prove identity — the charges relating to MJR (charges 2 and 3), BJC (charge 6) and SAB (charges 7 and 8) — and on other charges to prove that different complainants would not make similar allegations against the applicant unless they were true (that is, two or more complainants could not invent their versions of events independently and by chance) — the charges relating to AKP (charge 1), SE (charges 4 and 5) and KFH (charges 9 to 13).
Significantly, common law requirements concerning directions on coincidence evidence have been displaced by the provisions of the JDA. Section 26 provides that coincidence evidence — which has the same meaning as in the Evidence Act 2008 — is other misconduct evidence. By virtue of s 30(1), ‘a trial judge is not required to direct the jury regarding the use of other misconduct evidence’ except as provided by the Act, and s 30(2) provides that any rule of common law to the contrary ‘is abolished’. With respect to the directions that may be given, s 27(1) provides that defence counsel — but not the prosecutor — ‘may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution’. Before continuing, we note that defence counsel in this case made no distinct request under s 12 for a direction on coincidence evidence.
Once defence counsel has requested a direction on other misconduct evidence, s 27(2) regulates the directions that must be given, and s 27(3) spells out the directions that need not be given:
27 Direction on other misconduct evidence adduced by the prosecution
…
(2) In giving a direction referred to in subsection (1), the trial judge must—
(a)     identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and
(b)    if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and
(c)     direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.
(3) In giving a direction referred to in subsection (1), the trial judge need not—
(a)     explain further what the jury should consider in deciding whether to use the other misconduct evidence; or
(b)    identify impermissible uses of the other misconduct evidence; or
(c)     refer to any other matter.
Hence, in the context of coincidence evidence, s 27(2) requires a trial judge to identify for the jury how the coincidence evidence is relevant to a fact in issue — in this case, either identity or the unlikelihood of invention — and to make it clear that the coincidence evidence cannot be used for any other purpose.
As we have mentioned, defence counsel did not distinctly make a request under s 12 of the JDA that the trial judge give directions on coincidence evidence. Rather, what occurred was this. At the close of the prosecution case, the judge had the kind of discussion with counsel contemplated by s 11 of the JDA, in order to identify the matters in issue. It appears that as part of that exercise the prosecutor had provided the judge with a written list of topics requiring directions. According to the judge, the list ‘recites these points: other misconduct; consent, referring to s 46 [of the JDA]; complaint, delay in complaint, s 56; distress; coincidence; and consistent account’. Asked by the trial judge whether he had ‘one of these dot points to address’, and for his ‘own request for directions’, defence counsel said that the judge had ‘just covered what I was going to say, so I won’t take that any further’. Counsel then specifically sought directions on delay in complaint; an unreliable witnesses warning; directions on collusion; a direction on the failure to cross-examine BJC; separate consideration direction; a Liberato[21] warning; and a direction not to use the complainants’ evidence ‘by way of tendency as opposed to what’s allowed by [the coincidence ruling]’.
[21]Liberato v The Queen (1985) 159 CLR 507.
Although defence counsel did not, under s 12 of the JDA, in clear terms seek any directions on coincidence evidence, the judge gave directions on the topic. Presumably, the judge considered that defence counsel had constructively sought the directions; or, pursuant to s 16, the judge ‘considered that there were substantial and compelling reasons for doing so’. Whichever be the case, once the judge embarked on the task, his directions needed to conform to the requirements of s 27. On a fair reading of the judge’s charge, however, we consider that it is clear that they did not.
In his charge, having directed on a range of matters, the judge turned to ‘other misconduct evidence’, which included ‘the production of a weapon, threats made by the accused, the hitting of the complainants either by slapping or hitting, forceful kissing which was said to be not mutual or by consent, grabbing and groping’. The judge said:[22]
So what is that evidence relevant to? What does it go to? If it does not go directly to the charged acts, the natural question is, well, how can we use that evidence? That evidence may be relevant to his behaviour and to his state of mind and when I say ‘his’, I mean [the applicant]. It may go to illuminate or shed some light on his behaviour and on his state of mind at the time.
It may be also relevant to the complainant’s state of mind and behaviour. There were a lot of questions [in] this trial and comments about what the complainants did and did not do. Some of this evidence may cast light on what they did and did not do and why, perhaps. It is a matter entirely for you. But that is what they may be relevant to.
These pieces of evidence may be relevant firstly to explain the surrounding circumstances of each offence; to intention; to motive of the accused man. Also relevant to understand the interaction not being a normal interaction between people; not being a normal transactional exchange between people but may cast light on it. It is all entirely a matter for you whether it does or not. The evidence is led to provide you with essential background information that allows you to assess and evaluate other evidence in a complete and realistic context. Keep this evidence in perspective. It is only one part of the prosecution’s case.
You must not decide the case, as I have said, based on feelings of sympathy or prejudice. Now, if you only have that evidence, you might readily form a point of view about the behaviour of the offender. But it is really only led not to tell you what kind of person [the applicant] is. That is not to the point. This trial is not about what kind of person [the applicant] is. It is only to cast light on the circumstances and on the state of mind, intention and motives surrounding the offending.
Do not use that evidence for any other purpose. You must not decide the case based on prejudice arising from what you hear about the accused. The alleged offences charged can be proven only by the evidence relating directly to them, not by evidence related to other conduct. You must not reason, members of the jury, that because the accused engaged in violence or violent sexual conduct – if you accept that he did so, that he was the kind of person who is likely to have committed the charged offence because you find that he behaved in that way.
[22]Emphasis added to this and following passages.

No issue was raised in this Court about the foregoing directions, which contained an adequate anti-propensity warning. The judge continued:
Now, that is one part of misconduct evidence. The second part is about coincidence. So let me explain what I mean by that. The prosecution has led evidence from each of the complainants. It argues to you that you can use a particular reasoning about parts of the evidence to bolster the credit of each complainant – that is number 1, bolster the credit – and 2, use it to find a relevant fact in issue. So what is the relevant fact in issue? The relevant fact in issue is the identity of the offender. That is the very important aspect of what that evidence can go to.
In the immediately foregoing passage, the judge appears to have merged two distinct uses of coincidence evidence. Thus, although he directed the jury that the ‘relevant fact in issue is the identity of the offender’, he told the jury that they could ‘use a particular reasoning about parts of the evidence to bolster the credit of each complainant’ (which, by implication, was not a fact in issue). As we have indicated, the ‘identity of the offender’ was not a relevant fact in issue with respect to the charges involving AKP, SE and KFH. In the case of those three complainants, the evidence was relevant to rebutting the possibility of fabrication. The judge then gave the jury a direction concerned with the drawing of inferences.
Having given directions on inferences, the judge returned to the topic of coincidence evidence:
The prosecution has led evidence, members of the jury, from each of the complainants, and it argues that you can use a particular reasoning about parts of the evidence to do two things: bolster the credit of the complainant and use it to find a relevant fact in issue.
The fact that this type of reasoning has been called ‘coincidence evidence’ is really neither here nor there. That is just a term, and it comes from the fact that it is a reasoning which includes the use of coincidence in part of that argument, but do not let it confuse you that it is something specific about which you need to know. It is simply a term that is used to explain this entire reasoning process.
So coincidence evidence is evidence that uses the improbability of two or more events occurring coincidentally to prove another fact; that is, that a person performed the particular act or that a person had a particular state of mind. The use of coincidence evidence relies on a process of inferential reasoning, and you will recall the direction that I have just given to you about the process of inferential reasoning.
In this process, you infer from evidence of similarities between two or more events, and the circumstances in which those events took place, that it is improbable that the events occurred coincidentally. I will repeat that. This process of inferential reasoning allows you to infer from evidence of similarities between two or more events, and circumstances in which those events occurred, that it is improbable that the events occurred coincidentally, and therefore, from that improbability, reason that such a coincidence of a relevant fact in issue – that is, in this case, the identity of the accused – is simply improbable.
In this case, it is about the identity of the person who committed the offences. So the question is then: how is the evidence of the other complainants relevant to this issue in order to bring it into this inferential reasoning process of coincidences? The prosecution says that this evidence is relevant because it is most unlikely that several complainants, each of whom is independent of the other, would give similar accounts unless those accounts were both truthful and accurate. In other words, it says that it is most unlikely that several complainants would independently of each other have told the same lie or provided similar details unless they were true.
Coincidence evidence, therefore, can be used (1), to support the credibility of the complainants at one end; and (2), to prove the identity of the accused. So let me deal with (1).
How does coincidence evidence support the credibility of the witnesses? This use of coincidence evidence relies on the improbability of independent witnesses making similar allegations against the accused. You may reason that the similarities are more than can be explained by coincidence, and so their evidence is mutually supporting. And I direct you as a matter of law that it is open for you to reason in this way.
However, before you can do so, you must first accept that such similarities as you find them in the witnesses’ evidence are not the product of any contamination. The defence in this case has argued that the discussion, the information, the sharing of information, the chat, the existence of pamphlets or posters, the talk amongst the complainants and other sex workers as well as the presence of that information, printed or otherwise, in the area has meant that the complainants have falsely included those details in their story. It has been called ‘conflation’.
Once more, in the passage above the judge appears to have conflated two concepts. Thus, having directed the jury that the case was ‘about the identity of the person who committed the offences’, the judge told the jury that the evidence of the other complainants was relevant to proof of identity because it was ‘most unlikely that several complainants, each of whom is independent of the other, would give similar accounts unless those accounts were both truthful and accurate’. The judge then continued:
Conflation can be defined as being the merging of two or more sets of information or ideas or texts into one idea. That is what conflation means. This, the defence says, explains the coincidence evidence. That is why, the defence says, there is this conjunction, this coincidence of evidence, therefore you should not rely on it to give more credit to the witnesses or to say that it proves the identity. That is what defence says, effectively: ‘Do not rely on the similar details of the complainants at all by coincidence reasoning. Find that it does not lead properly to identifying [the applicant] because it comes from this conflated – contaminated, in effect – process’.
Remember that [the applicant], in relation to [AKP, SE and KFH], agrees he was there with the complainants, but that they have misdescribed what has occurred. In making a decision as to the facts and his actions, you can use coincidence evidence even in those circumstances. In the cases of [MJR, BJC and SAB] where he denies ever being in their presence or with them at all, and that he has been misidentified, coincidence reasoning is available to you to deal with that allegation – not of his, to deal with the complainants’ allegation, I am talking about.
In deciding each of, particularly, these latter cases – [MJR, BJC and SAB] – you must look at these cases separately. You may use coincidence reasoning to find that it is most unlikely that several complainants have independently told the same lie or given the details they have given, and this improbability of coincidence assists you to infer the identity of the offender where it is disputed.
Prosecution says the similarities between the evidence of the complainants are so great that you should find the same person is responsible for each offence, in effect. The prosecution says that if you find beyond reasonable doubt that [the applicant] committed one offence then you can use that fact, and the similarities in the evidence, when you come to consider whether you are satisfied beyond reasonable doubt that he also committed the other offences which you are considering.
Coincidence evidence may be used to establish identity, as in this case, where the modus operandi – fancy Latin word for mode of conduct – where the mode of conduct used makes it likely that the same person is responsible for two or more particular offences. The evidence can only be used if you are satisfied that both offences were committed by the same person and that the accused at least committed one of them. So by that reasoning you say, ‘Well, I’m looking at these two offences. I’m satisfied he committed that, there’s the similarity. I’m now looking at assessing this other one’.
So here you are invited by the prosecution to use the similar method in which the offender dealt with the victims and the similar particulars, which I will summarise in a moment, to prove the identity of the offender. You cannot use the method of committing one offence as coincidence evidence; showing that the accused committed another offence unless you are satisfied beyond reasonable doubt. I repeat; that the accused committed the first offence. I do not mean number one, I mean the other one that you are comparing it with.
Keep this evidence in perspective, members of the jury. It is only one part of the prosecution’s case. You must not decide the case on the sort of sympathy and prejudice that this type of reasoning can give – open the door to – and because of what you learn in one case is applied to another. It has been led for the limited purpose of showing that in each case it was the accused who was the offender. You must not use the evidence for any other purpose. Certainly you must not use the evidence to argue that [the applicant] has a tendency to act in a particular way and, therefore, that enables to identify you [sic] as the - him as the offender in the cases.
You cannot reason as to the identity of the offender, by any reason, as to any propensity or tendency which the evidence discloses as to other offending. It is not about what kind of person [the applicant] is, or may be. You must not reason that way. In order to decide he was the offender you must reason that the similarities are so sufficient to prove the identity of the offender as being the accused man, [the applicant], in the offences that you are considering.
Again, the direction appears to have conflated the two uses to which coincidence evidence may be put, and merged those complainants where the evidence was led to rebut the possibility of invention (AKP, SE and KFH) with the evidence of those complainants where the evidence went in proof of identity (MJR, BJC and SAB).
The judge then referred extensively to the evidence that told against conflation, collaboration and collusion. He then said:
However, before you can use the existence of similarities in their accounts, you must exclude a reasonable possibility that two or more of them subconsciously change their account, introduce those similarities, because of conversations. But you must go back to the evidence. When you look at the evidence, the particulars there are important.
So what are these similarities? Let me give you a list so that you can make that comparison. [AKP] says she was picked up on Greeves Street, St Kilda. ... The offender drove a grey Toyota sedan with four doors. He was an Asian man. He yelled at her, he kicked her, he pushed her, he told her, ‘I’m gonna rape you now’. He pushed her to the ground, inserted his penis into her anus, put his hands around her neck and hit her to the face. He was angry. This was near the Elwood Canal. Now, this is a brief summary.
[MJR] says she was picked up on the corner of Greeves and Inkerman in St Kilda. He drove a grey hatch with registration number WGW with six or something. He was an Asian man. He locked the doors to the car, he produced a large knife, he told her he would drive her somewhere and shoot her if she did not do what she wanted. He forced her head down to his penis and inserted it into her mouth, he also inserted his penis into her vagina, he put his hand over her mouth to stop her screaming, he slapped her body and face. And that also occurred at the Elwood Canal.
[SE] says she was picked up on Inkerman Street in St Kilda. He drove a dark grey Suzuki Swift four-door, was an Asian man. He had a baby seat in the back seat. She told him to stop, and he refused. He tried to force her head down onto his crotch. He poked her with his finger in her arm, chest and body, yelled at her, grabbed her by the arm, pulled her towards him and tried to kiss her. This occurred in Elwood.
[BJC] was picked up in Greeves Street in St Kilda. The accused drove a Suzuki Swift, gun-metal grey in colour – the offender. Registration number WGW 148 or similar. He was an Asian man. He had a baby seat in the back seat. Told the accused to stop the car. He refused, he became angry, he handcuffed her right wrist and drove along Greeves Street, dragging her along the street, calling her a whore, a dirty slut, ‘I should fuck you in the arse’. Grabbed her by the hair, pulled her hair from her head. And that occurred in St Kilda.
[SAB] says she was picked up on the corner of Grey and Gurner Street in St Kilda. He drove a silver car. He was an Asian man, had a baby seat in the back seat. He locked the doors to the car. He was asked to stop the car, and he refused and refused to let her out. He put his fist up as he was going to hit her. He said, ‘Blow me’, and she refused. He grabbed her right arm near her wrist and would not let go. He grabbed her by the hair, was getting nasty and out of control. He said that he liked to be dominated, and then he inserted his penis into her mouth. His penis was flaccid. He told her to keep sucking and grabbed her roughly by the hair and forced her head onto his penis. And that occurred in St Kilda.
Lastly, [KEH] said that she was picked up in Sunshine. He drove a little hatch. He was an Asian. He had a baby seat in the back. He locked the doors to the car, he threatened to shoot her, he grabbed her by the back of the neck and pulled her towards him. He placed her hand on his penis. She resisted, and he slapped her across the face about six times. ‘Just do what I tell you to do or I’ll hurt you’, he said. The accused attempted to force her mouth onto his penis. He touched her breasts and vagina. He then strangled her with his hands. He slapped her across the face. He inserted his finger or fingers into her anus. And that occurred in Spotswood.
That is a brief summary of those matters which the prosecution says are similarities which allow you the use of coincidence reasoning.
This direction did not list the similarities which the jury could use to support coincidence reasoning. It was instead a brief summary of the complainants’ evidence, which referred generically to some details of similarity, without identifying with any particularity those aspects of the events involving the six complainants which were said to contain the relevant similarities which would permit coincidence reasoning. Certainly, the direction did not identify similarities in the evidence of the events involving MJR, BJC and SAB, which would permit the jury to conclude that the same offender was responsible for the offending against them; and did not identify similarities in the evidence of the events involving AKP, SE and KFH, which would permit the jury to conclude that they had not independently fabricated their evidence. The direction neither identified with any particularity the coincidence evidence relied upon — evidence of ‘[two] or more events’ permitting an inference to be drawn that, because it was improbable that the two or more events occurred coincidentally, a person must have ‘[done] a particular act or had a particular state of mind’ — nor explained how the coincidence evidence was relevant to a fact in issue, whether that issue be identity or non-fabrication.
We have set out the judge’s directions on coincidence evidence in more detail than usual so that they can be viewed in their full context. When so viewed, the directions were deficient in a number of respects. As we have said, the direction conflated the two distinct uses to which the coincidence evidence could be put; did not distinguish — indeed, comingled — the evidence of the complainants bearing on proof of identity and the evidence of those led to establish non-fabrication; and did not identify with any precision those alleged similarities in the events about which the complainants gave evidence which legitimately could bear on a fact in issue in the trial (whether that fact in issue be identity or non-fabrication).
Moreover, there was a danger that the coincidence evidence may have been used by the jury for an impermissible purpose. It will be remembered that the coincidence ruling restricted the use to which the coincidence evidence could be put. First, although the judge ruled that the complainants’ evidence could be used as bearing on the truthfulness of their respective accounts, she permitted its use to prove identity solely on those charges involving SAB.[23] Secondly, and more importantly, in conformity with Jacobs, as part of her ruling the judge recognised ‘that it is not permissible to use the evidence of other complainants to draw an inference about a particular complainant’s state of mind’, so that the ‘mutual admissibility’ in relation to the other five complainants ‘is limited to the prosecution’s reliance on the circumstances described by the complainants that do not relate directly to each complainant’s consent to sexual acts’.[24]
[23]See [36]–[37] above.
[24]See [36] above.
Jacobs, to which the judge adverted, is authority for the proposition that the evidence of one or more other complainants in a case of rape involving multiple complainants is inadmissible on the question whether a particular complainant consented to conduct amounting to rape. That case involved charges of rape against six complainants, the only facts in issue in each case being consent and belief in consent. This Court said that
the prosecution sought to rely on the fact that all six complainants allege an absence of consent as enhancing the credibility of each individual complainant’s allegation to that effect. Reasoning of that kind was discredited by the High Court in Phillips v R.[25] Evidence of absence of consent is simply not cross-admissible for that purpose. That is so even when, as here, the evidence of absence of consent is said to be probative also of the accused’s state of mind.[26]
[25](2006) 225 CLR 303 (Phillips).
[26]Jacobs, [5]. See also [34].
In our view, so as to fulfil his obligations under s 27(2)(a) of the JDA,[27] the trial judge should have made it clear that the coincidence evidence could not be used to prove lack of consent on the charges relating to AKP, SE and KFH. Absent a direction to that effect, we consider that there is a real risk that the jury may have used the coincidence evidence for that prohibited purpose.
[27]Cf s 27(3)(b).
The applicant’s counsel at trial did not take exception to the judge’s directions on coincidence. That is an obstacle in the applicant’s path, but should not deny him success on the present ground. There are two ends to the Bar table. It is regrettable that neither counsel recognised the deficiencies in the judge’s charge and sought to have him correct them. Given that coincidence evidence — a notoriously difficult area — formed a significant part of the prosecution’s case, the prosecutor should have been astute to ensure that the judge’s directions on the topic were not attended by error. Thus, while the failures of defence counsel are a hurdle for the applicant, they should not prevent him from succeeding. As was said in Caine:[28]
The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client’s case is put to the jury in a way which is as favourable to the client’s interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial.
[28]R v Caine (1990) 48 A Crim R 464, 475 (Crockett, McGarvie and Beach JJ).

In our opinion, the errors identified under cover of the first ground vitiate the applicant’s convictions. Orders should be made accordingly.

Conviction ground 2: Error permitting use of the evidence of KFH as coincidence evidence

Ground 2 contends that KFH’s evidence was not admissible as coincidence evidence. As a result, the charges relating to her (charges 9 to 13) should have been severed, and the subject of a separate trial.
In support of the ground, counsel for the applicant submitted that the significant differences between what was alleged with respect to KFH and the other complainants meant that it simply was not open to conclude that KFH’s allegations had significant probative value in proof of any of the other acts allegedly perpetrated against the other complainants (and vice versa). The surrounding circumstances were too dissimilar and the acts of sexual violence did not possess any particularly distinctive feature.
Counsel for the respondent submitted that the similarities in the events involving all six complainants, and the circumstances in which they occurred, rendered KFH’s evidence admissible as coincidence evidence. The respondent’s counsel submitted that each event involved the use of the same car; each involved a very similar description of the offender; and there was consistency so far as aggression was concerned. The differences concerning the attack upon KFH were slight compared with the similarities. In any event, the circumstances do not need to be precisely the same. The extent of similarity required diminishes as the number of witnesses giving the similar accounts increases.
On the charges involving KFH, identity was not in issue. The principal fact in issue was whether the various acts alleged against the applicant occurred. To be admissible, therefore, the coincidence evidence had to be relevant to an assessment of the disputed facts whether the applicant forced KFH’s hand onto his penis (charge 9); grabbed her by the hair and forced her head into his groin, attempting to put her mouth onto his penis (charge 10); touched her breasts (charge 11) and her vagina (charge 12); and put his finger into her anus (charge 13).
As revealed by cross-examination, the applicant’s case was that KFH entered the car by agreement in order to perform sexual services for a fee; that there was a dispute about payment; and that KFH said that she would not leave until the applicant paid her. It was at that point that the applicant abused KFH and told her to get out of the car.
In Page, when considering s 98(1), the Court said:[29]
[56]… The question which needs to be addressed is: is it improbable that the respective accounts given (of the charged conduct and of the other conduct) would describe the same feature, or features, if the accounts were not truthful.
[57]There is no requirement of ‘unity’, ‘connection’ or ‘pattern’ over and above the requirement of cogency in the common features or similarities. Thus, there might be a single unusual feature of the alleged offending, or of the circumstances, which recurs in the descriptions given by the respective witnesses.[30] The very distinctiveness of that feature might be sufficient to support ‘improbability of coincidence’ reasoning, despite there being no other similarities or, at least, none which would attract the description ‘underlying unity’ or ‘pattern of conduct’.[31] As this Court said in Velkoski, the greater the number of complainants, the less distinctive or similar the evidence need be to satisfy coincidence reasoning.[32]
[58]Since the judge must be satisfied that the evidence will have ‘significant probative value’, an argument based on similarities — as s 98(1) requires it to be — will ordinarily need to identify similarities in respect of:
· a distinctive or unusual feature (or features) of the ‘event or the circumstances in which it occurred’; or
· a combination of features ‘of the event or the circumstances in which it occurred’.
They must be similarities which would make coincidence (or invention) improbable.
[29]Page v The Queen [2015] VSCA 357, [56]–[58] (Maxwell P and Redlich JA, and Beale AJA) (‘Page’).
[30]See, eg NAM v The Queen [2010] VSCA 95 [12] (‘NAM’).
[31]See, eg R v Buckley (2004) 10 VR 215, 229 [47].
[32]Velkoski [(2014) 45 VR 680, 720 [175]]. [Although aspects of Velkoski dealing with tendency evidence were criticised by the High Court in Hughes v The Queen (2017) 263 CLR 338, 353–5 [29]–[38] (Kiefel CJ, Bell, Keane and Edelman JJ); 421 [206] (Nettle J); cf 374–5 [102]–[104] (Gageler J); the proposition adverted to in this footnote — dealing with coincidence evidence — was not.]
In the case of KFH, there were a number of dissimilarities in the events that she described, and the circumstances in which they occurred, which set the charges involving her apart from the others. Among them, the applicant used a ruse to have KFH enter his car, and the events after entry did not occur in the context of a commercial transaction (KFH denying that she was a sex worker). KFH was picked up and allegedly offended against in a part of Melbourne that is a long way away from St Kilda and different in character.
There are, however, common features which link the events involving KFH to a number of the other complainants. In our view, they are features which satisfy the requirements for the admissibility of coincidence evidence, and that a properly instructed jury might legitimately use to support coincidence reasoning.
Thus, KFH gave evidence that, while confined in the car with the applicant — there was no dispute that the applicant was the driver — the applicant, having first tried to get her to rub his penis and slapped her across the face about six times, then grabbed her by the hair and forced her head into his groin, attempting to put her mouth onto his exposed penis. Similarly, MJR gave evidence that after her entry into the offender’s car, while she was in the passenger seat with the offender seated beside her, he grabbed her by the back of the neck and forced her head down onto his penis and penetrated her mouth. She also gave evidence of the offender slapping her face during sex. So, too, SE gave evidence that while confined in the applicant’s car — by the time of trial it was not disputed he was the driver — the applicant undid his pants, pulled his penis out and directed SE’s head forcefully to his crotch, presumably to effect penile-oral penetration. Specifically, she said that the applicant ‘put his left arm around behind my neck and my head and pulled my head down to his crotch just like forcefully to give him oral sex’. She gave evidence that ‘after a few times of pulling my head down, um ah he just like once I’ve sat back up, he’s just snapped and pointing his finger at me and like poking me in the chest and in the arm and he’s calling me a bitch and a slut and, you know, like going crazy’. SE said the applicant slapped her in the face ‘a couple of times’. Again, this occurred while she was confined in the passenger seat of the car with the offender beside her. Both KFH and MJR were also threatened that they would be shot if they did not co-operate, but neither of them saw a gun.
The common features in each case were the isolation and confinement of the complainant in the offender’s car in an atmosphere of violence and, more specifically, the forceful pulling of the complainant’s neck and head onto the offender’s exposed penis, and the offender’s anger towards the complainant manifesting in face slapping.
In our view, the features are sufficiently distinctive to permit coincidence reasoning. We consider that the evidence of KFH and SE is admissible to prove the identity of the male who orally raped MJR; and, should the jury be satisfied to the criminal standard of the applicant’s identity in MJR’s case, the evidence of MJR, SE and KFH would be admissible vis-à-vis each other to prove that the particular acts of oral (or attempted oral) penetration occurred.[33]
[33]Given the acquittals returned on the charges involving SAB (charges 7 and 8), her evidence that the male whose car she entered grabbed her by hair and had her perform oral sex, would not be admissible on a retrial.
As formulated, ground 2 must fail. Although we would not uphold all of the bases upon which the prosecution was permitted to use KFH’s evidence as coincidence evidence, it was admissible on the bases we have identified. And given that it is cross-admissible, it would be pointless to order severance of charges 9 to 13 from the other charges on the indictment.

Conclusion

For the foregoing reasons, the applicant’s convictions cannot be permitted to stand. The interests of justice require an extension of time to be granted; leave to appeal against conviction be granted; and the appeal allowed. We would order a new trial.

DPP appeal

Given our conclusions with respect to conviction, there is no occasion to consider the DPP’s appeal.

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[2023] VSCA 196

24 August 2023