Leonard (a pseudonym) v The Queen
[2021] VSCA 172
•18 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0239
| NEIL LEONARD (a pseudonym) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 June 2021 |
| DATE OF JUDGMENT: | 18 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 172 |
| JUDGMENT APPEALED FROM: | DPP v [Leonard] (Unreported, County Court, Judge Doyle, 29 October 2020) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Tendency and coincidence evidence – Sexual penetration of a child under 16, indecent act with child under 16 – Admissibility of evidence – Whether trial judge erred in finding evidence admissible – Whether coincidence evidence – Prosecution disavow reliance on coincidence reasoning – Whether s 98 of the Evidence Act 2008 engaged – Appeal allowed – Evidence Act 2008, ss 95, 98 and 101.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Wareham | Galbally & O’Byran Lawyers |
| For the Respondent | Ms A Moran | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with the orders proposed by Niall JA and with his reasons for them, but wish to add a few brief observations of my own.
The prosecution sought to prove the identity of the applicant as the offender by employing a process of syllogistic reasoning involving the following steps: the male carer who sexually offended against the complainant gave her an icy pole on an occasion (or on occasions) when he did so; the applicant gave the complainant an icy pole on one occasion; therefore, the applicant is the male carer who sexually offended against the complainant.
As an essential first step in that process of reasoning, the prosecution sought to prove that on an occasion ‘towards the end of 1995’ the complainant’s mother found her daughter alone in a room with a male carer — the Record of Contact suggested that the male carer was the applicant — who had given her daughter an icy pole.
In written submissions, the respondent’s counsel submitted that the ‘evidence of the Record of Contact, and associated evidence given by [the principal] and [the mother] is a key piece of circumstantial evidence which goes to establishing the identity of the alleged offender as the applicant’. Counsel also submitted in writing that the
relevance of the ‘Record of Contact’ and underpinning event is that it gives rise to the irresistible inference, in combination with other evidence, that the applicant was the male who gave the complainant an icy pole on an occasion when other children were not given the same treat, and that the complainant was taken away from the other children by the applicant so she could have the treat in secret. The effect of the complainant’s evidence is that there was only one male person at after care who engaged in such conduct with her, and that was the male person who sexually abused her. Thus, it is a key piece of circumstantial evidence establishing the identity of the alleged offender as the applicant.
The dangers lurking in the evidence — in particular, its possible misuse — may be gleaned from the following oral submissions by the respondent’s counsel. A member of the Court having observed that ‘it might be said that because the giving of the icy pole on the occasion in question was not accompanied by sexual offending, it is somewhat dissimilar to the occasions upon which the complainant was otherwise given icy poles, and … rather than help prove the identity of the offender, it might help prove that the applicant was not the offender’, counsel responded:[1]
The prosecution has never said that positively no sexual offending can have occurred on that particular occasion where [the mother] observed the complainant and the applicant. The state of the evidence is that the complainant does not remember what happened on that occasion. It is not a case that we can positively say that nothing happened on that occasion. All we can say is that on that occasion the, I suppose hallmark, or a particular pattern of behaviour, and I use that term guardedly, but the pattern of behaviour that her offender engaged in, was demonstrated on this occasion, and on a fair reading of her evidence, there was no other employee, male employee or otherwise, who ever worked in aftercare, who took her away from the other children and gave her icy poles or other treats, and had her hide that fact from the other children.
So in a sense, I with respect disagree with the way that your Honour has put that, because the position of the evidence is not that nothing happened on that occasion, it is simply that we cannot say one way or the other, because the complainant has no memory of it.
[1]Emphasis added.
Notwithstanding that the prosecution sought to use the evidence that the applicant had given the complainant an icy pole on the occasion to which her mother could speak as circumstantial evidence to prove identity, the respondent ‘specifically and unequivocally eschew[ed] reliance upon it as coincidence evidence’ under s 98(1) of the Evidence Act 2008 (‘the Act’).
At common law, similar fact evidence was regarded as a species of circumstantial evidence.[2] When used to prove identity, courts ‘insisted … that there should be something in the evidence, in the nature of “striking similarity” with the offences charged, which strongly points to the accused as the offender’.[3] If modus operandi were relied upon to prove it likely that the same person was responsible for two or more offences, the evidence needed to demonstrate something in the nature of ‘striking similarity’, more than the ‘stock in trade’ of persons who commit crimes
of a particular kind.[4]
[2]Pfennig v The Queen (1995) 182 CLR 461, 482–3 (Mason CJ, Deane and Dawson JJ).
[3]R v Tektonopoulos [1999] 2 VR 412, 418 [25] (Winneke P, Charles and Batt JJA agreeing).
[4]Sutton v The Queen (1984) 152 CLR 528, 535 (Gibbs CJ); R v Clune [1995] 1 VR 489, 513 (Phillips CJ, Hampel and Coldrey JJ).
Used to establish identity, coincidence evidence under s 98(1) of the Act seeks to prove that ‘a person did a particular act … 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’. Since, by s 98(1)(b), it must have ‘high probative value’, and by virtue of s 101(2) cannot be used unless its probative value ‘substantially outweighs any prejudicial effect it may have on the accused’, it is plain that coincidence evidence used to prove identity must possess a quality or feature akin to what the common law contemplated as striking similarity.
As I have indicated, the prosecution — using the terms ‘guardedly’ — seeks to rely on the impugned evidence as a ‘hallmark, or a particular pattern of behaviour, … the pattern of behaviour that [the complainant’s] offender engaged in [being] demonstrated on this occasion’.[5] In my view, however, the evidence of the giving of the icy pole on the occasion in issue could not logically establish a ‘hallmark’ or ‘pattern of behaviour’ (or, for that matter, ‘striking similarity’). It certainly does not possess high probative value which substantially outweighs any prejudicial effect.
[5]See [5] above.
No matter the label that the prosecution sought to attach to the impugned evidence, it is — when properly analysed — coincidence evidence, caught by the provisions of ss 98(1) and 101(2).
KYROU JA:
I agree with Niall JA and with the additional observations of Priest JA.
NIALL JA:
The applicant seeks leave to appeal an interlocutory ruling in relation to the admissibility of certain evidence. The issue in dispute is whether the proposed evidence engages the coincidence rule in s 98(1) of the Evidence Act2008. The judge ruled that the evidence fell outside s 98(1) and was admissible. He certified under s 295 of the Criminal Procedure Act2009 for the purpose of an interlocutory appeal.
In summary, the evidence of the complainant (‘AB’) is that she was sexually assaulted on multiple occasions by a male after school carer in 1995 when she was 5 years old. She says that on each occasion the offending was associated with the carer giving her treats including, on one occasion, an icy pole, away from other children or staff. Apart from giving a very general description of the offender, the complainant is otherwise unable to identify him. The prosecution wish to adduce evidence from the complainant’s mother that, on one occasion in 1995, she came across the applicant and the complainant in a room away from other children and after the applicant had given the complainant an icy pole. The complainant has no recollection of this event occurring. It is not alleged by the prosecution that any offending took place on that day.
The respondent submits that, having regard to the similarities between what was observed by the complainant’s mother and what is said to have happened when the offences were committed, the evidence is relevant and admissible to prove that the applicant is the offender. The respondent submits that it is strong circumstantial evidence of identity that does not rely on coincidence reasoning. The respondent specifically and unequivocally eschews relying on coincidence reasoning and does not seek to bring the evidence within s 98(1).
In my view, the evidence clearly falls within the coincidence rule. Section 98(1) applies. The evidence could only be admissible as coincidence evidence in accordance with the requirements of s 98. Leave to appeal should be given and the appeal allowed.
The prosecution case
The following summary of the prosecution case is largely drawn from the judge’s ruling. The summary sufficiently sets out the context in which the issue of admissibility arises.
The complainant’s evidence
The complainant turned 5 years old in March 1995. In that year she attended after school care at a private school in Melbourne. The school provided after care in two buildings: ‘House A’ for younger children and ‘House B’ for kindergarten aged children. During 1995, the complainant attended House A.
She says that a male employee who was employed as an after school carer sexually assaulted her on multiple occasions during 1995 or 1996. She described the offender as being male, Caucasian, with straight brown hair, she thought he was tall, in his early to mid-20s and had an athletic or thin build.
In her statement to police, the complainant said:
at least once a week, if not twice a week, the male after-school teacher asked if I would like some lollies, an icy pole or extra afternoon tea. We always got afternoon tea after we finished school, but he would ask me if I was still hungry and wanted more. I would willingly oblige and I told him that I did. He told me that we would have to hide the fact that I was getting extra or getting treats because the other kids weren’t as special and that I would have to come upstairs to eat it.
The complainant described various instances of sexual assault which were associated with her receiving these treats, including lollies and icy poles. In relation to one incident (charge 10), she said she was sexually assaulted by the man after he gave her an icy pole. She said that the offending occurred upstairs and that the man would tell her to sit down on a bed and that sometimes he told her to get next to the bed on the ground and to be ‘quiet as a mouse’ so that she did not get in trouble for having a treat. She was 95 per cent sure the offending occurred upstairs although she recalled ‘going downstairs towards the right of the kitchen once or twice’.
The complainant said that a male and female carer worked at after school care during her time there, and that they did so throughout the period she attended. I note that initially the complainant placed the offending as having occurred in 1996. The applicant stopped working as an after school carer at the school at the end of 1995. The indictment alleges the offending took place in 1995.
The mother’s evidence
As recorded by the judge, the mother’s evidence, to which objection is taken, was as follows:
[The mother’s] evidence is that one day towards the end of November 1995 she arrived at after-care about 15 minutes earlier than usual. She could not find the complainant and she looked around the building and asked various people including a female staff member where the complainant was. She then walked through the building calling out ‘[AB], where are you?’. She walked down the corridor to the rear of the building where there was a sick bay. She saw the sick bay door open and saw a man she recognised as one of the after-care staff come out of the room with the complainant.
I interpolate that there was no dispute that the applicant was the staff member who the complainant’s mother saw that day. The judge referred to him as the accused. Returning to the judge’s narrative:
[The mother] asked the accused ‘What are you doing?’ She looked inside the room and saw a single bed against a wall on the right-hand side of the room. The accused pushed past [the mother] and told her that he was giving the complainant an icy pole away from the other kids as a reward. He walked past [the mother] and left. [The mother] asked the complainant what had happened, and the complainant said that the accused had asked her to kneel down and hide beside the bed to eat her icy pole so the other kids couldn’t see.
The complainant made no allegation to [the mother] that anything of a sexual nature had taken place on this occasion. The following morning [the mother] went back to the school and met with the school principal. [The principal] told [the mother] she would look into the incident and get back to her. [The mother] is not able to recall whether she had any further contact with [the principal]. [The principal] has no recollection of the incident.
During the investigation, police obtained from the school a document described as a ‘Record of Contact’. This document is dated 29 November 1995. The document contains the following relevant entries:
• Mon: after-care: mother arrives [AB]. Found her in kitchen with [Neil] who has given her a biscuit ‘for helping’.
• Tues: after-care: mother arrived [AB] not about. Found her in back room with [Neil] who had given her an icy pole. She told mother he said to hide behind bed so no one would know she had it. Parents ‘uncomfortable’. Mother told [Neil] he was foolish laying himself open.
The Record of Contact went on to record that Neil had been spoken to and had been told to work in House B after-care for the remaining two weeks of the school year. I note that the principal has no independent recollection of the discussions recorded in the note, or of the incident. Similarly, the complainant does not recall the incident described by her mother.
The judge’s ruling
After setting out a summary of the evidence and competing arguments, the judge concluded:
In my view the evidence of [the mother] and the ‘Record of Contact’ is relevant to the issue of identification in the way advanced by the prosecution. I have examined the statement and committal evidence of the complainant and in my view it is open for the prosecution to argue the complainant is saying that the man who gave her treats away from the other children was the person who committed the offences against her; that there was no other male in aftercare who provided her with treats in such circumstances. Therefore, the relevance of the evidence of [the mother] and the ‘Record of Contact’ derives from its capacity to establish that the man who gave the complainant treats away from the other children was the accused and this evidence taken together with the rest of the circumstantial material in the case proves the accused was the person who committed the alleged sexual assaults.
Looked at in this way the evidence does not derive its probative value from coincidence reasoning. The jury will not be asked to reason from similarities in the conduct between the offending and the impugned evidence. They will be asked to consider the incident with [the mother] as a critical piece of circumstantial evidence providing the answer to the identity of the man who gave the complaint treats in secret, that person being the person who sexually assaulted her. The force of the evidence relies on the assessment of the complainant’s evidence that there was only one man who gave her treats in these circumstances.[6]
[6]DPP v [Leonard] (County Court, Judge Doyle, 29 October 2020).
The judge distinguished Pfennig v The Queen,[7] on which the applicant had relied, on the basis that in Pfennig, the prosecution relied on a proven tendency of the accused to abduct and murder a young boy, whereas in this case, the prosecution was not relying on ‘tendency or similarities’.[8]
[7]Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) (‘Pfennig’).
[8]Ruling [46].
The judge went on to say that an ‘additional purpose of the evidence [was to] establish that the complainant was in child care at [House A] in 1995 and the accused worked at the [House A] in 1995.’
Having found the evidence admissible, the judge then turned to the application to have the evidence excluded under s 137 of the Evidence Act.
The judge said that the evidence, taken at its highest had significant probative value:
It is the critical (and powerful) circumstantial fact which demonstrates the identity of the person who gave the complainant treats away from the other children. Taken at its highest it fills the gap in the prosecution case arising from the complainant’s inability to put a name to the alleged perpetrator of the offending.[9]
[9]Ibid [50].
The judge accepted that there was a danger that the jury might engage in conjecture that sexual offending had taken place on the day the complainant’s mother found her and the applicant or to treat the giving of an icy pole on that day as grooming even though the prosecution disavowed reliance on either. Importantly the judge continued:
In other words, there is a danger the jury could use improper tendency and propensity reasoning or impermissibly use it as context evidence. In my opinion there is also a danger that a jury could improperly employ coincidence reasoning. However, in my opinion, the jury can be strongly directed against reasoning in any of these prohibited ways and in light of the directions that can be given I am not of the view that the unfair prejudice outweighs the substantial probative weight of the evidence.[10]
[10]Ibid [50] (emphasis added).
Finally, the judge observed, without elaboration, that the Record of Contact was admissible as a business record under s 69(1) of the Evidence Act.
Proposed grounds of appeal
The applicant seeks leave to appeal in respect of the following grounds:
1.The learned trial judge erred by permitting the prosecution to adduce evidence of the Record of Contact and the underpinning evidence of [the mother] as relevant circumstantial evidence.
2. The learned trial judge erred by permitting the prosecution to adduce:
1. the Record of Contact, and
2. the underpinning evidence of [the mother]
in circumstances where the probative value of those pieces of evidence was substantially outweighed by the danger of their unfair prejudice.
Ground 1
The applicant’s submissions
The applicant submitted that there are three issues at trial:
(a) The identity of the accused as the offender;
(b) The year the offending occurred; and
(c) Whether the prosecution can prove the essential elements of each offence.
In his written case, the applicant first addresses an argument that the Record of Contact and the mother’s evidence were relevant to establish a relationship or context in which the offending occurred. As the respondent does not seek to rely on relationship or context, and specifically and unequivocally eschewed doing so, it is not necessary to rehearse the applicant’s submissions on this aspect.
The applicant next refers to the judge’s ruling where he observed that the evidence constituted a ‘critical piece of circumstantial evidence providing the answer to the identity of the man who gave the complainant treats in secret, that person being the person who sexually assaulted her’ and that the ‘force of the evidence relies on the assessment of the complainant’s evidence that there was only one man who gave her treats in those circumstances’[11] and says that this involves coincidence reasoning.
[11]Ibid [45].
In oral submissions, counsel for the applicant contended that the impugned evidence invited coincidence reasoning and was inadmissible.
The respondent’s submissions
The judge’s ruling largely reflected the prosecution submissions and the respondent adopted the judge’s reasoning as correct.
The respondent summarised the evidence of the complainant, emphasising her evidence that a male after school care teacher would ask her on at least a weekly basis if she wanted extra lollies, icy poles or afternoon tea, explaining to her that this would need to be hidden from the other children and that the male in question would take her away from the other children to give her these treats. The complainant states that this male committed the acts against her the subject of the charges in the indictment.
The respondent submits that the evidence of the ‘Record of Contact’, and associated evidence given by the principal and the mother is a key piece of circumstantial evidence which goes to establishing the identity of the alleged offender as the applicant.
The respondent submits that the Record of Contact and the mother’s evidence of what she saw and heard on the afternoon in question was relevant because it gives rise to the irresistible inference, in combination with other evidence, that the applicant was the male who gave the complainant an icy pole on one occasion when other children were not given the same treat, and that the complainant was taken away from the other children so she could have the treat in secret. The effect of the complainant’s evidence is said to be that there was only one male person at after school care who engaged in such conduct with her, and that was the male person who sexually abused her.
The respondent describes it as ‘the critical piece of evidence in the respondent’s case, necessary to establish the identity of the alleged offender’.
In oral submissions, counsel for the respondent contended that the evidence is part of the complainant’s description of the offender and is relevant because ‘the applicant has been identified in relation to that particular behaviour that matches the description of the offender’. Counsel specifically and unequivocally eschewed reliance upon it as coincidence evidence.
Analysis
Coincidence reasoning: the principles
The Oxford Dictionary defines a coincidence as ‘a remarkable concurrence of events or circumstances without apparent causal connection’. A coincidence describes two events that are apparently unconnected. However, often on closer examination, similarities between two events may be discerned and, depending on their nature and extent, the similarities might reveal a pattern or connection. It is a commonplace form of reasoning to assimilate the similarities, establish a connection and draw inferences, so that, what happened at one event may say something about the other.
Finding patterns and drawing inferences is a natural and useful form of reasoning. It is an everyday and important process of reasoning that puts the myriad of observations into some form of predictable or explicable order. In the context of the criminal law, similarities between events and the behaviour of those involved in the events can be especially powerful in pointing towards a particular conclusion. To see a pattern in conduct, particularly horrible conduct that would otherwise remain unexplained, is entirely understandable.
In the face of similarities between events or behaviour, an obvious inference is that there is a connection between the two events, often a connection that derives from human agency. In the Evidence Act the issue is addressed through the concepts of tendency and coincidence evidence.
Both the tendency rule and the coincidence rule are exceptions 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.[12] The Evidence Act defines tendency and coincidence, and renders such evidence inadmissible unless a hurdle, which sets the bar higher than base relevance and which addresses both probative value and prejudice, is overcome.[13]
[12]Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [66] (Beach, Kaye and Ashley JJA).
[13]Evidence Act 2008 (Vic) ss 97 and 98.
Pared to its essential features, tendency evidence is evidence that on another occasion or occasions the accused acted in a particular way. It provides a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. The tendency to act in a particular way may be discerned from character, reputation or conduct.
Coincidence evidence is concerned with a similarity between events. The similarities in two events may allow an inference to be drawn that the same person was involved. It might also help establish, or provide a basis to infer a person’s state of mind or knowledge.
There is an area of potential overlap between tendency and coincidence, although as expressed in the Evidence Act they have a different focus. Before the Evidence Act, admissibility of each was assessed under the rubric of similar fact evidence and generally required a striking similarity or underlying unity between the two matters as a condition for admissibility.
For example, in Thompson v The Queen,[14] the accused was charged with the murder of two sisters who had been killed in a similar way to the victims of subsequent killings for which the accused was convicted. Mason CJ and Dawson J said:
Similarity between the circumstances of those murders and the circumstances of the earlier deaths of the two sisters was sufficiently striking to eliminate coincidence as a reasonable hypothesis and to lead to the conclusion that the two sisters did not die accidentally but at the hand of the applicant
[14](1989) 169 CLR 1, 18; [1989] HCA 30 (‘Thompson’).
The process of reasoning can also be seen in Pfennig v The Queen. The following summary given by Nettle JA in Dupas v The Queen (No 2)[15] exposes the reasoning:
Pfennig was charged with the murder of a 10 year old boy, Michael Black, at or near Murray Bridge in South Australia on or about 18 January 1989. The child had last been seen on that day at Sturt Reserve on the Murray River. His body was never found. The prosecution case was based on circumstantial evidence including similar fact evidence that Pfennig had abducted and raped another young boy, H, about a year later at Port Noarlunga. The trial judge admitted the similar fact evidence on the basis that it revealed Pfennig’s propensity to abduct a young boy for sexual purposes and by means which were likely to have been adopted in the case in question. The judge instructed the jury that the similar fact evidence could not be used to resolve doubts on the question of whether Michael Black had been abducted but that, if the jury were satisfied by other evidence that Michael Black had been abducted and murdered, they could then take account of the similar fact evidence in deciding whether Pfennig had committed the abduction and murder. Ultimately, the High Court upheld that ruling. As Mason CJ and Deane and Dawson JJ put it, the evidence of what Pfennig had done on the later occasion demonstrated not only criminal propensity and criminality but also established Pfennig’s modus operandi in abducting a young boy for sexual purposes. The evidence of what Pfennig had done on the later occasion tied in with other evidence that Pfennig had been at Murray Bridge at or about the time in question and had sought to inveigle other children to accompany him, and so showed that those steps were taken to give effect to that propensity. It was therefore logical to assume that Pfennig had abducted Michael Black by means of similar steps and with the same purpose. The value judgment made was that once the similar fact evidence was taken into account with the other evidence there was no reasonable hypothesis which explained Michael Black’s death other than that it was due to Pfennig.[16]
[15](2005) 12 VR 601; [2005] VSCA 212 (‘Dupas’).
[16]Ibid 624-5, [74] (Nettle JA).
The language of striking similarity, modus operandi and underlying unity was common in the authorities. When the admissibility of coincidence reasoning was governed by s 398A of the Crimes Act 1958, similar concepts were employed but were not controlling. So much was explained by Winneke P in R v Papamitrou:[17]
It was not necessary to demonstrate [...] that there were ‘striking similarities’ between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct.
Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an ‘underlying unity’ between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view — and I think correctly — that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy ‘storage room’, the toilets at the Plaza, the vehicle which he drove from his place of work or from work-related functions.
Whether one describes these factors as providing an ‘underlying unity’, or a common ‘modus operandi’ or a ‘pattern of conduct’ is of little consequence. The ‘links’ were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of ‘infection’ the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive — and in my view strongly supportive — of the evidence of others.
Not only that, but — in my opinion — the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a ‘prejudice’ to the accused. But the ‘prejudice’ of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them.[18]
[17](2004) 7 VR 375; [2004] VSCA 12; (‘Papamitrou’).
[18]Ibid 390–1 [31]. See also CGL v DPP (2010) 24 VR 486, 494–5 [28]–[30]; [2010] VSCA 26; (Maxwell P, Buchanan and Bongiorno JJA) (‘CGL’); PNJ v DPP (2010) 27 VR 146, 148 [8]; [2010] VSCA 88 (Maxwell P, Buchanan and Bongiorno JJA); Cox v The Queen [2015] VSCA 28, [25] (Weinberg, Priest and Beach JJA), quoting CV v DPP [2014] VSCA 58, [9]–[11].
The references to Thompson, Pfennig and Papamitrou illustrate how coincidence evidence may arise in the context of a criminal trial. However, the starting point for present purposes is the text of s 98(1) of the Evidence Act. It provides:
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.
Section 98(1) must be read with s 101(2) of the Evidence Act, which provides:
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 evidence with which s 98(1) is concerned is evidence that two or more events occurred, and which is adduced to prove that a person did a particular act or had a particular state of mind. Such evidence may establish identity on the basis that, having regard to their similarities, it is improbable that the two events occurred coincidentally and involved different people. Or to put it another way, the similarities are so great that one can safely infer that they involved the same person. It is the improbability of coincidence that gives the evidence its probative value.[19] In reasoning that remains apt to s 98(1), the High Court said in Hoch v The Queen that ‘similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible’.[20]
[19]Perry v The Queen (1982) 150 CLR 580, 588; [1982] HCA 75 (Gibbs CJ).
[20](1988) 165 CLR 292, 295; [1988] HCA 50 (Mason CJ, Wilson and Gaudron JJ).
The questions that s 98(1) provokes were explained by this Court in CGL[21] as follows:
[21](2010) 24 VR 486, 493 [22]; [2010] VSCA 26.
(d) Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?
(e) If so, would the evidence of those events and circumstances tend to prove that the accused:
(i) did the specified act; or
(ii) had the specified state of mind
where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?
(f) If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought to be adduced by the prosecution?
(g) If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?
The focus of the provision is on the similarities between the two relevant events and the question is whether those similarities show the improbability of coincidence.[22] The more numerous the items of similarity and the more precise, the stronger the inference of improbability.[23] If the similarities between the two events are the product of coincidence, then what happened at one event will say nothing about the other. On the other hand, if the similarities are such that it is improbable that the events occurred coincidentally then the similarities may rationally affect the probability of the existence of a fact in issue such as the identity of the persons involved. However, by a combination of ss 98(1) and 101(2), to be admissible the evidence must go further and have significant probative value that substantially outweighs any prejudicial effect.
[22]Page (a pseudonym) v The Queen [2015] VSCA 357, [52] (Maxwell P, Redlich JA and Beale AJA) (‘Page’).
[23]R v Nassif [2004] NSWCCA 433, [52]; Page [2015] VSCA 357, [46].
Where, in a criminal trial, the prosecution seek to adduce evidence of two events which are, to some degree, similar, the prosecution will often hone in on the similarities and expressly invite the jury to reject any possibility of a coincidence as remote or far-fetched. However, even where the prosecutor or the judge makes no reference to coincidence, a jury faced with similarities in two events will often adopt the same reasoning. That is because it is a natural, and often compelling, form of reasoning informed by common sense and experience.[24]
[24]Reg. v. Boardman [1975] AC 42, 444 (Lord Wilberforce).
The risk of coincidence reasoning being used by a jury, even where no reliance is placed on it and even where the evidence is relevant and admissible on another basis underpins s 95 of the Evidence Act. That section, which is in part 3.6 (ss 94 – 101, headed ‘Tendency and coincidence’), provides:
(1)Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2)Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
Section 95 adopts the opposite approach to hearsay evidence, which, under s 60, can be used as hearsay notwithstanding s 59, provided it has been admitted for another purpose. It reinforces the force of tendency and coincidence evidence and of the need for it to meet the high threshold for admissibility in ss 98 and 101.
Consideration
The starting point is the purpose for which the prosecution seeks to adduce the impugned evidence. There is no ambiguity on that score. As stated in the respondent’s written case: the evidence of the ‘Record of Contact’, and associated evidence given by the principal and the complainant’s mother is a key piece of circumstantial evidence which goes to establishing the identity of the alleged offender as the applicant. It is critical in large part because of the inability of the complainant to give direct evidence establishing the identity of the offender.
The evidence proposed to be given by the mother is plainly evidence of an event. When, as the prosecution intends, it is combined with the complainant’s evidence, it will constitute evidence of two or more events. The evidence is sought to be adduced to prove that the accused committed the offences, that is, to prove that he did particular acts. It therefore comes within the first part of s 98(1).
The real issue is whether the evidence would, or might be, used by the jury as proof of those facts on the basis described in s 98(1). The respondent accepted in oral argument that it will seek to establish that the applicant is the offender by pointing to the similarities between the event described by the mother and the events described by the complainant. Those similarities are that on each occasion the person gave the complainant a treat and, in the case of two of them, an icy pole. Second, on each occasion the treat was given furtively and away from the other children.
Based on those similarities, the prosecution will invite the jury to conclude that they involved the same person. The respondent confirmed in oral argument that the logic it seeks to employ is that (a) the applicant gave the complainant an icy pole as a treat in furtive circumstances away from other children; (b) the offender gave the complainant treats including on one occasion an icy pole away from the other children at the time of, and to facilitate the offending; and (c) they must be the same person. To do so is to invite coincidence reasoning.
In his ruling, the judge explained that the relevance of the evidence derives from its capacity to establish that the man who gave the complainant treats away from the other children was the accused and this evidence taken together with the rest of the circumstantial material in the case proves the accused was the person who committed the alleged sexual assaults. So much can be accepted. The question is how, if at all, does it do so? In my opinion it could only do so by a form of coincidence reasoning. Any assessment of whether the similarities could rationally affect the probability of the fact to be proved (identity) has to take into account whether or not the two events might be coincidental. To conclude, based on the similarities that the two events involved the same person is simply to reject the conclusion that they occurred coincidentally. It is not possible to get to the conclusion without asking, expressly or implicitly, whether or not the two events occurred coincidentally, which is the very issue to which s 98(1) is directed.
Whether, based on similarities, one starts by asking whether the person in each event is the same or whether the events occurred coincidentally is merely asking the same question in a different way and invites exactly the same reasoning.
Faced with the evidence, the jury, whether they are expressly invited to do so or not, will assess it by considering whether the similarities can be explained as a coincidence or whether it is improbable that the events involved a different carer. This is not a case where the complainant says that the offender was the person who gave her an icy pole on a particular occasion and the prosecution seeks to establish the identity of the person on that day as a stepping stone to identifying the offender. It will be recalled that the complainant has no recollection of the incident described by her mother. The critical connection between that person and the offender on which the prosecution argument depends is the alleged similarities between the events. Whether described as such, the basis on which the evidence will be used will be the very basis caught by s 98(1). It is not to the point that the similarities between the incident and the offending might be inadequate to persuade a jury that a coincidence is improbable. In that respect, it is notable that the respondent accepts that it cannot and does not submit, that any offending took place on the day the mother observed the complainant with the applicant.
Nevertheless, the vice is that as a matter of substance, there is a real and substantial risk that the jury will adopt a form of coincidence reasoning that the coincidence rule in s 98(1) is designed to regulate. Sections 98 and 101 do not permit an alternative pathway by merely describing the evidence as strong circumstantial evidence of identification.
Indeed, so much was recognised by the judge. In his ruling, he noted that ‘there is also a danger that a jury could improperly employ coincidence reasoning’.[25] He was right to do so. Indeed, not only was that a danger, it was, with respect, the very basis upon which the jury were being invited to proceed. Once it is accepted that the evidence is capable of being used to prove identity by a process of reasoning that explicitly or implicitly invites the jury to conclude that a coincidence is improbable, then s 98(1) is engaged. The evidence is only admissible if a notice is given (or dispensed with), and the evidence has significant probative value that substantially outweighs any prejudicial effect. Unless the prosecution confronts, and overcomes that hurdle, the evidence is inadmissible.
[25]Ruling [51].
Although the judge observed that the evidence might also be relevant to proving the applicant worked at House A in 1995 and had some connection with the complainant, that does not assist the respondent. That is not why the evidence is being adduced and both facts can be proved by other means. Indeed, the applicant says that neither fact is controversial. The fact that the prosecution seeks to use the evidence to establish the identity of the offender brings s 98(1) into play. Further, s 95 prevents the evidence from being admitted on some alternative basis unless it also meets the test for admissibility of coincidence evidence.
Further, as I have already stated, the respondent unequivocally disavowed any reliance on the evidence as establishing some form of relationship or context in which the offending occurred. The purpose of adducing the evidence was to prove that the applicant committed the offending acts.
Because the prosecution specifically and unequivocally disavows any intention to adduce coincidence evidence, and has made no attempt to bring it within the coincidence rule, including by the giving of a notice under s 100, there is no occasion to consider how ss 98(1) and 101(2) would apply to the evidence.
Ground 2
Since the prosecution does not seek to admit the evidence on the only basis upon which it could possibly be admitted, it must be treated for present purposes as inadmissible. Accordingly, there is no occasion to consider ground 2 which addresses the power to exclude otherwise admissible evidence under s 137. It would be artificial to do so, when the higher tests of admissibility in ss 98(1) and 101(2) apply.
Other matters
Since the subject matter of the proposed evidence is inadmissible, it is also not necessary to consider whether, as found by the judge, the Record of Contact itself is a business record and admissible under s 69 of the Evidence Act or whether the appropriate course would be for the principal to use the note to refresh her memory of what had occurred. In other words, the mode of proof, were the evidence otherwise admissible, does not arise for consideration.
Conclusion
The application for leave to appeal should be granted. The appeal should be allowed. The ruling of the judge should be set aside.
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