EVIDENCE – Admissibility – Criminal proceedings – Coincidence evidence – Whether sufficient degree of similarity – Whether significant probative value – Whether court must consider possibility of concoction or contamination – Coincidence evidence inadmissible – Evidence Act 2008 (Vic) s 98.
CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Nature of appeal – Whether appellate court should decide for itself whether evidence admissible – R v Zhang (2005) 227 ALR 311, L v Tasmania (2006) 15 Tas R 381, considered.
CRIMINAL LAW – Appeal – Interlocutory appeal – Judge’s certificate – Decision concerns admissibility of evidence – Cross-admissibility relevant to severance – Decision affects conduct at trial –Criminal Procedure Act 2009 (Vic) – s 295(3)(a), (b).
---
Appearances:
Counsel
Solicitors
For the Applicant
Ms S Leighfield
Victoria Legal Aid
For the Crown
Mr G S C Silbert SC with Mr J S Bessell
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P BUCHANAN JA BONGIORNO JA:
The applicant has been presented on 14 counts of sexual assault against teenage boys, ranging from buggery to indecent assault of a male, and also on three counts of common assault. The offending is alleged to have occurred between 24 March 1965 and 27 January 1967 at a Youth Training Centre in the eastern suburbs (‘the Centre’). The accused worked at the Centre in a supervisory role as a youth officer and the complainants were residents.
Each of the complainants was, at the time of the alleged offending, between about 14 and 16 years of age. They are now men in or approaching their sixties. The applicant is now aged 79.
As part of its case the Crown gave notices pursuant to ss 97 and 98 of the Evidence Act 2008 (Vic) (‘EA’) that it intended to lead both ‘tendency’ and ‘coincidence’ evidence against the accused on his trial. The leading of such evidence requires a pre‑trial determination of the admissibility of the evidence sought to be relied upon. Argument was heard by the trial judge, Judge Coish, on the Crown’s application and on 9 February 2010 his Honour ruled that the coincidence evidence sought to be led was admissible. He determined that the tendency evidence was not admissible, however.
Counsel for the applicant then sought a certificate from the judge, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) (‘CPA’), to enable an interlocutory appeal to be brought to this Court against the decision on coincidence evidence. His Honour granted that certificate. (We deal with the question of the certificate later in these reasons.) After hearing argument on the application for leave to appeal, we reserved our decision.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading PNJ v DPP
Sign in free to access the full text
Details
AGLC
PNJ v DPP [2010] VSCA 88
Case
[2010] VSCA 88
Decision Date
CaseChat Overview and Summary
In PNJ v DPP, the defendant, PNJ, appealed against the decision of the County Court to admit certain evidence in a criminal proceeding. The case involved allegations of serious criminal activity, and the admissibility of specific evidence was central to the proceedings. The appeal was brought to the Supreme Court of Victoria.
The legal issues at the heart of this appeal revolved around the admissibility of coincidence evidence under the Evidence Act 2008 (Vic). Specifically, the court needed to determine whether the evidence presented was sufficiently similar to warrant admissibility and whether it held significant probative value. Additionally, the court had to consider whether it should address the possibility that the evidence had been concocted or was contaminated. The decision in R v Zhang and L v Tasmania was also considered to guide whether the appellate court should decide the admissibility issue itself.
In examining the evidence, the Supreme Court found that the similarities were not sufficient to meet the threshold for admissibility under s 98 of the Evidence Act 2008 (Vic). The court determined that the evidence lacked the requisite significant probative value and did not warrant consideration of whether it had been concocted or contaminated. Given the importance of the admissibility decision to the conduct of the trial and the potential for cross-admissibility relevant to severance, the court found that the County Court's decision was reviewable under the Criminal Procedure Act 2009 (Vic). The appeal was allowed, and the evidence was deemed inadmissible.
The final orders of the court were that the evidence in question would not be admitted in the trial and that the County Court was directed to proceed without considering that evidence. This decision underscored the rigorous standards required for the admissibility of coincidence evidence in criminal proceedings.