R v Ana Maria Valdebenito - [2008] NSWDC 94

No judgment structure available for this case.

CITATION: R v Ana Maria VALDEBENITO [2008] NSWDC 94

HEARING DATE(S): 12/05/08, 13/05/08

JUDGMENT DATE:
14 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: Refusal to admit into evidence material sought to be relied upon by the prosecution as 'tendency and/or coincidence' evidence.

CATCHWORDS: CRIMINAL LAW - admissibility of evidence - tendency rule - coincidence rule

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

CASES CITED: R v Lockyer (1996) 89 A Crim R 457
R v Lock (1997) 91 A Crim R 356
R v Fletcher [2005] NSWCCA 338
R v Merritt (unreported, 10 March 1999, NSWCCA)
R v Zhang [2005] NSWCCA 437
Pfenning v The Queen (1995) 182 CLR 528
R v Ellis (2003) 58 NSWLR 700
HML & Ors v The Queen [2008] HCA 16
Perry v The Queen [1982] HCA 75
Sutton v The Queen [1984] HCA 5

PARTIES: D.P.P. (Commonwealth)
Ana Maria Valdebenito

FILE NUMBER(S): 07/11/0695

COUNSEL: D Lee (Crown)
N Carroll (Accused)

SOLICITORS: Commonwealth Director of Public Prosecution (Crown)
George Sten & Co (Accused)

JUDGMENT On admissibility of evidence

INTRODUCTION

1 Applications are made by the accused, known either as Ana Maria Nieto or Ana Maria Valdebenito, to exclude from the prosecution case, evidence that it would seek to reply upon as either tendency or coincidence evidence as provided for in the Evidence Act 1995. The evidence in question is evidence relating to the conduct of the accused in relation to matters to which the accused has pleaded guilty, either at the Local Court (“The Local Court Plea Evidence”) or in the District Court (“The District Court Plea Evidence”). This evidence in my judgment I may refer to from time to time as simply “the plea evidence”. The Crown alternatively wishes to rely upon this evidence, that is the plea evidence as evidence of “context”. This course is further opposed by the accused.

2 This application of the accused to exclude the evidence for the purposes enunciated by the Crown, proceeds on the basis of two lever arch folders of material provided by the prosecution, being in effect as I understand it, the prosecution brief, some detailed and very helpful written submissions from the prosecution and extensive oral submissions taken over two days, interrupted unfortunately by the funeral of my late beloved brother Donovan. I have no transcript of proceedings.

BACKGROUND

3 The accused was committed for trial on five charges on the following terms:

Crimes Act

Criminal Code

4 The trial was to commence in February 2008 but was adjourned for reasons that are not relevant here.

5 On Monday 12 May 2008 the accused was arraigned in this Court on the abovementioned charges and pleaded not guilty to Counts one to three but guilty to Counts four and five. The accused had on 4 September 2007 pleaded guilty to a related offence in the following terms:

Between about 21 January 2004 and about 25 May 2005, did dishonestly cause a loss to another person, namely the Commonwealth entity the Commonwealth Services Delivery Agency, knowing that such a loss would occur, in that she obtained payment of Newstart Allowance in the name Ana Maria NIETO without disclosing to that agency that she was already in receipt of Newstart Allowance in the name Ana Maria VALDEBENITO.
Section 135.1(5) Criminal Code 1995 (Cth)

6 In anticipation of the accused pleading guilty to the counts on the indictment abovementioned and continuing her plea of guilty in the District Court to the other charge, which she has done, the Commonwealth Director of Public Prosecutions forwarded by letter dated 9 May 2008, a “Tendency and Coincidence Notice”, purportedly in accordance with the relevant terms of the Evidence Act 1995. No issue arises directly for consideration as to the form of the notice, nor as to the timing of the Notice. It would appear that the accused’s legal representatives have always anticipated, at least since February of this year, that the prosecution would seek to rely on the pleas of guilty to particular charges and the evidence relating to those matters as relatively evidence of tendency/coincidence in accordance with the terms of either s 97 and/or s 98 Evidence Act 1995.

7 The Notice advises the intention to rely upon conduct of the accused occurring after 2 December 2003 (that is covered by the charges to which the accused has pleaded guilty) and which is particularised in summary in paragraphs five to seven of the Notice which is evidence in these proceedings.

8 The prosecution also submits that the evidence the subject of the Notice, or “Plea Evidence”, is admissible as,

i. “Context Evidence” and

ii. “To rebut the anticipated defence that in the charge periods that is, between 4 March 1999 and 2 December 2003, the accused had previously notified Centrelink of the use of both names and/or accidental failure to notify the use of both names”.

9 The Legal Issues

10 The relevant provisions of the Evidence Act 1995 are as follows:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(b) the court thinks that the evidence would not, 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 .

98 The coincidence rule

(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by theparty seeking to adduce the evidence, have significant probative value .

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar , and

(b) the circumstances in which they occurred are substantially similar.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98 .

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. ….”

11 “Probative value of evidence” for the purposes of the Act “means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The word “significant” in the context of significant probative value has been discussed and a number of authorities referred to by the Crown including R v Lockyer (1996) 89A Crim R 457 and R v Lock (1997) 91 A Crim R 356 (approved in R v Fletcher [2005] NSWCCA 338). From the authorities cited by the Crown can be drawn the following conclusions:

i. Sections 97 and 98 are to be interpreted in accordance with the statutory language and not in accordance with formerly existing common law principles.

ii. In undertaking the task required pursuant to section 97(1), in respect of tendency evidence, there is a two step process; firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue, and secondly (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury may ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value (in the sense discussed in Lockyer ).

iii. The exercise is predictive and evaluative and is one upon which reasonable minds will, on occasions, differ. The decision must be based upon the information and material available to the judge at the time the decision is made ( R v Fletcher [2005] at [33]-[35] per Simpson J)

iv. The essence of evidence sought to be adduced pursuant to s 98 (as coincidence evidence) is that there is established to have been two events in circumstances where the existence of one event establishes the likelihood that the accused was responsible for or involved in the separate event or to establish that the other of these events did not occur by accident ( R v Merritt ) NSWCCA unreported - 10 March 1999) or that the accused “had a particular state of mind” on the purportedly connected occasions (s 98(1) of the Act). Further, in applying Fletcher principles to coincidence evidence, Simpson J said of s 98(2) “That it is necessary (as an anterior step) to determine whether the two or more events, the subject of the tendered evidence, are substantially and relevantly similar and whether the circumstances in which they are alleged to have occurred, are substantially similar. Since admission of the proposed evidence depends upon the existence of relevant similarities it is obvious that the assessment is to be made by the judge ( R v Zhang [2005] NSWCCA 437).

v. If satisfied that the evidence is relevantly, pursuant ss 97 or 98, of significant probative value, the next step is to consider s 101(2) of he Act. That is to determine whether the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused “which involves an assessment and prediction of the use the jury may make of the evidence, against the risk that it may make some improper use of it”.

vi. The formulation in s 101(2) requiring the probative value of tendency or coincidence evidence to “substantially outweigh” it’s prejudicial effect, is a legislative formulation and thus it excludes the test formulated in respect of the admissibility of “propensity evidence” discussed in Pfenning v The Queen (1995) 182 CLR 528, (See R v Ellis (2003)58 NSWLR 700 at [84]-[90]).

THE RELEVANT FACTS

12 The accused is a native of Chile who has lived in Australia since approximately 1978. During the 1990s, as I understand it, she received what might be described as Government benefits or “Centrelink benefits”. In 1998 she commenced to receive “Newstart Allowance” in the name of Ana Maria Valdebenito (which is her married name). Nieto is her maiden, or family surname.

13 By way of background to Counts one, two and three, it is the Crown case that the accused lodged separate claim forms in either the names Valdebenito and Nieto and thus maintained dual and separate identities and provided personal information which was exclusive to each identity. It is alleged that as well using the two names the accused:

a. “provided a different residential address (61 Chester Road Maroubra) for the Newstart allowance claim in the name of Valdebenito to the three different addresses for the Austudy claim in the name of Nieto (7/60 Maroubra Road Maroubra; 17/5 Cook Street Glebe and 25 Marlborough Street Drummoyne)

b. Nominated different bank accounts (Commonwealth Bank Account held in the name of Valdebenito and St George Bank Account held in the name of Nieto) to receive these Centrelink payments.”

14 In relation to Count one, she commenced receiving Newstart allowance on 4 March 1999 in the name of Ana Maria Valdebenito when at the time she was receiving Austudy allowance in the name of Ana Maria Nieto. This was paid until 10 May 2001. As I understand it, Newstart Allowance is essentially a payment made for a person who is unemployed but ready and available for paid work. “Austudy Allowance” is a benefit paid to someone who is undertaking some form of full time tertiary or secondary study that prohibits or limits the opportunity to obtain paid employment and is over 25 years of age. The Crown case is that the accused, if receiving Newstart, was not entitled to receive Austudy, and/or, vice versa in the circumstances of the matter.

15 In completing various claim forms the accused ticked a box marked “No” relating to questions asking if she was known by any other names. She provided identification documents in both names of proof in support of her “separate identities”.

16 Count two is concerned with the conduct between 24 May 2001 and 21 November 2002, when the accused received a payment of Newstart Allowance in the name of Ana Maria Valdebenito without disclosing that she was already in receipt of Austudy in the name of Ana Maria Nieto. Count one is concerned with a breach of s 29B Crimes Act, the allegation against the accused is that the conduct concluded on or about 10 May 2001, prior to the repeal of that provision on or about 24 May 2001. Count two is alleged to be a breach of s 135.1(5) Criminal Code Act 1995 (as is Count three), charged separately because of the change of law on 24 May 2001 when the provisions of the Criminal Code Act came into force.

17 Count three is concerned with conduct between 15 April 2003 and 2 December 2003 where it is alleged in the charge that the accused obtained ‘Austudy’ in the name of the Ana Maria Nieto, without disclosing to the relevant agency, that she was already in receipt of “Newstart” allowance in the name of Ana Maria Valdebenito. The particulars in Count three are expressed in reverse order to those alleged in relation to Count two and Count one. Count three is also concerned with a discrete course of conduct as it is particularised, commencing on 15 April 2003. That is approximately five months after the completion of the conduct giving rise to the allegation contained within Count two.

18 With regard to the ‘Local Court plea evidence’, as the prosecution describes it, that allegation is concerned with conduct between 21 January 2004 and 25 May 2005, in that the accused allegedly obtained the payment of “Newstart” allowance in the name of Ana Maria Nieto, without disclosing that she was already in receipt of “Newstart” allowance in the name of Ana Maria Valdebenito. The charge is not identical in its particulars, to the charged counts. As to the “District Court plea evidence”, Count four in the indictment alleges that the accused was receiving “Newstart” allowances in the two names I have described above, whilst obtaining income from employment and that she did not disclose to the relevant Commonwealth agency that she was employed and in receipt of income. Count five concerned the period 30 June 2005 to 8 February 2006 (she was arrested on 17 February 2006) and alleges that the accused received Newstart allowance in the name of Ana Maria Valdebenito, when she was in fact employed and in receipt of income that obviously disqualified her from receiving that allowance.

19 I note all charges arise from the payment of the accused of benefits to which she was not entitled by reason of receipt of other income. Income was advised to the accused at all relevant times in correspondence tendered before me, to include either “another Commonwealth benefit”, to use my expression, or monies received from paid employment apart from other sources of income.

20 The essence of the Local Court plea evidence relevant to the issues determined as particularised by the prosecution is that:

(i) On 15 January 2004 she provided information in the name of ‘Nieto’, identical, or similar to, a claim form lodged relevant to Count 3 which was acted upon by the relevant Commonwealth agency.

(ii) She regularly declared that she did not work, although she was in fact employed.

(iii) She was continuing to receive Newstart Allowance in the name of Valdebenito, in accordance with the claims she lodged on 12 February 1999 and made regular fortnightly claims on relevant forms to support her ongoing entitlement to this benefit.

21 In relation to the District Court plea evidence, Counts four and five are concerned with slightly different circumstances so far as the Crown identifies them.

(i) Re Count 4 : the accused claimed two Newstart Allowances in two names while she was working and supplied the same personal details in relation to those names as supplied in respect of Counts one to three.

(ii) Re Count 5 : the accused claimed “Newstart Allowance” only in one name (Valdebenito) in circumstances where she was working under the name of Nieto (as she was during the period covered by Count four) and lodged fortnightly forms under the name of Valdebenito to continue the payment of this allowance.

22 As I understand the prospective evidence to be relied upon by the Crown during the relevant time covered by Counts four and five, the accused was working in paid employment. She worked under her maiden name as I have said. As I understand the evidence to be produced by the prosecution the accused, at least by the period referred to in Count four, and also in relation to the Local Court plea evidence, had been separated from her husband.

23 In relation to Count five, only on one occasion did she submit a form, that is on 8 June 2005, when she did not assert she was not working and actively looking for work. On 8 June 2005 she was interviewed by a Centrelink investigation officer and she disclosed during this interview that she had been working casually since February 2005. She had maintained her identity as Nieto and asserted that she was not known by any other name. She was interviewed again in August 2005, completed another Payment Review Form, and there maintained her identity as Valdebenito and also indicated in response to questions that she was not known by any other name. On this occasion she produced documentation supporting her identification as Ms Valdebenito.

SUBMISSIONS

24 One can only, in the barest detail, summarise the submissions as there is, as I said earlier, no transcript of over five hours of oral argument and discussion. The contentions, as I understand it from the parties generally can be stated as follows commencing with the prosecution’s position, although of course it is for the accused to justify exclusion.

25 In regard to tendency evidence sought to be adduced by the Crown the prosecution submits that the Local Court plea evidence and the District Court plea evidence demonstrates “a tendency by the accused to deliberately not disclose correct information to Centrelink in circumstances where she knew that she was under an obligation to do so because she knew that she would receive a benefit as a result of that non-disclosure”.

26 The Crown relies upon in general terms in its submissions:

(i) The relatively short time gap between relevant events.

(ii) The significant degree of similarity in the circumstances in which the conduct took place.

(iii) The fact that the evidence claimed to be tendency evidence, which I take to be the “plea evidence”, is not in dispute.

27 In relation to the tendency evidence to be found in the “plea evidence” the Crown further points to, amongst other things, and relies upon as relevant to Counts one to three:

(i) In relation to Count four there was a use of dual identities.

(ii) In relation to Count 4 the accused continued to earn income from the same sources of employment whilst receiving payments, in the name Valdebenito, of Newstart Allowance.

(iii) The accused attended upon the two interviews in June 2005 and August 2005 and in each interview maintained that she was not known by any other name in the same way that she had done when completing her original claim form for Newstart Allowance on 5 February 1999.

(iv) In relation to the two names she used for benefits she maintained her identity in each name, failing to disclose any employment or income from employment.

28 Regarding coincidence evidence, the prosecution submits in relation to the Local Court plea evidence and the District Court plea evidence that because of the “striking similarities” between the conduct covered by this evidence and the alleged conduct covered by Counts one to three, it is improbable that the two events occurred coincidentally, that is that the accused had a different state of mind during each relevant period.

29 It should be borne in mind that the Crown is not seeking to establish through the coincidence evidence the identity of the accused as being the person who committed Counts one to three. It is concerned with establishing that the striking similarity it alleges establishes that the state of mind of the accused in respect of the matters to which she has pleaded guilty reflects the state of mind that the accused, on the earlier occasions particularised in Counts one to three to which she has pleaded not guilty. The Crown submits that where the accused received payments of Centrelink benefits to which she was not entitled it is improbable that the accused knew or believed that during the period covered by the charges to which she has pleaded guilty, that she was entitled to dual payment of government benefits in two names, or not entitled to payment of government benefit whilst working but that she did not have the same knowledge or belief during the period covered by Counts one to three.

30 In relation to both coincidence and tendency evidence the prosecution points, in all counts, to a common thread of continuous conduct, that is of claiming Newstart Allowance yet at all times being disentitled to that benefit. This is said to be “an unbroken chain of conduct”. Each matter the Crown says is concerned with the “fault” aspect of the accused’s crimes, to cite the requirements under the current Commonwealth legislation.

31 The Crown submits that a common thread in all respects is the maintenance of “two separate identities”. At no stage, says the Crown, “mixing them”, so to speak, during compulsory disclosure, as exemplified by documents completed by her or with her approval in June and August 2005 and referred to in prospective evidence from investigation officers.

32 The Crown also submitted that the plea evidence may be available as “evidence of context” or as evidence to rebut accidental disclosure of wrong information which was compulsorily required.

33 The accused submitted in general terms the following matters:

(i) The circumstances of the plea evidence were not sufficiently similar for tendency or coincidence purposes, Count five being the weakest by comparison.

(ii) The tendency claim was too general to have significant probative value.

(iii) The plea evidence being subsequent in time has less probative value on the key issue of the accused’s state of mind at the earlier time covered by Counts one to three.

(iv) There is, in the context of coincidence evidence, no ‘striking similarity’.

(v) Even if the tests for ss 97 and/or 98 are met the likelihood that the jury, although properly instructed, may misuse the evidence is so great that the risk of unfair prejudice is not outweighed by the probative value of the evidence. The chronology of the relevant events, it is submitted, enhances the risk of ‘misuse’ and thus prejudicial effect consideration.

CONSIDERATION

34 Dealing with what clearly are the least contentious matters discussed, as the matter has been argued, the “plea evidence” is clearly not available as “context” or “contextual evidence”, as that term was first used by the Crown, because the plea evidence is not “contextual” in the ordinary meaning of the word. Nor is the evidence available as “circumstantial evidence” as has been recently discussed in the High Court decision of HML & Ors v The Queen [2008] HCA 16. I was particularly drawn by the learned Crown Prosecutor to the judgment of Justice Hayne, particularly to paras [155]-[158] of that judgment. The evidence is not available as circumstantial evidence, it would appear, unless it is in fact available as either tendency or coincidence evidence pursuant to the relevant provisions of the Evidence Act. Much time at the end of submissions was spent on HML, but ultimately the Crown’s late reliance on this case fell away, particularly given the fact that this is a South Australian case dealing with common law principles and the relationship of the decision of Pfenning v The Queen, previously cited, to the admissibility of so called “uncharged acts” in proof of guilt of charged acts. This particular decision must be considered in the context of what the Court of Criminal Appeal in New South Wales said of the common law and Pfenning compared to the express provisions of ss 97, 98 and 101 Evidence Act, as discussed in Ellis.

35 Thus, it can be seen as being of little assistance as to the admissibility of supposed “uncharged” acts under the Evidence Act. Of course, although I have not had a full opportunity to read the judgment in detail overnight, it seems its implications for exclusionary principles, particularly the concepts of “unfair prejudice” or “prejudicial effect” and the balancing exercises in the Evidence Act, which were not debated before me, will need attention by the superior courts in due course.

36 I accept that there is some material, particularly in the evidence of Mr Stephen and Mr Cosgrove arising out of their contact with the accused in 2005 which may well arise, depending upon the case conducted by the accused noting what was foreshadowed in submissions for consideration. But this will arise only in rebuttal and more likely as material available in cross-examination of the accused, who is anticipated to give evidence. In fact, it seems to me that this is a case where, on the material available to the prosecution, the accused would be obliged to either give, or call evidence, to raise a “defence” (noting that she bears no onus) to meet the strength and character of the prosecution case.

37 As to the more difficult areas for consideration, I have come to the conclusion that the evidence sought to be adduced as “tendency” and/or “coincidence” evidence does not have the significant probative value in each instance to warrant its admissibility for those purposes. Even if it could be maintained that it has such significant probative value, as contended by the Crown, it seems to me that its probative value does not substantially outweigh “any prejudicial effect” that would arise out of its admission in the circumstances of the case. However, I do not propose to analyse s 101 issue in this matter because of the primary conclusion I have reached.

38 As to both tendency and coincidence reasoning contended by the Crown, in my view the probative value of the evidence is diminished in a general sense by the following features arising from the materials sought to be relied upon by the prosecution:

(i) Firstly, the supposed tendency and coincidence evidence is directed at the mental state of the accused only. That is, as to the fault element, to use another expression. Her identity and her conduct so far as the Crown case in relation to Counts one and three are not in doubt, nor challenged by her. The supposed tendency and coincidence evidence sought to be relied upon by the Crown relates to her state of mind after the relevant events, giving rise to the matters set out in Counts one to three to which she has pleaded not guilty. Her state of mind after relevant events is of less probative value, than her state of mind beforehand.

(ii) The gap in time between relevant acts of the accused, in respect of which her state of mind is the subject of dispute in this proposed trial, is not so close as to readily make available an inference that her state of mind was the same at a later time as it was at the earlier time the subject of dispute at the trial. The gap between relevant events is, depending upon the particular charges and the particular plea evidence sought to be relied upon, a matter of years. In fact, up to six years in some circumstances, and at the very least a matter of some months.

(iii) As summarised beforehand, the similarities contended by the Crown between the circumstances arising out of the charges and the plea evidence vary in strength and intensity. There are in fact, as between Counts one, two and Count three, dissimilarities in the modus operandi revealed in the evidence produced by the Crown and in the particulars relied upon by the within the plea evidence of varying nature and intensity.

(iv) The pleas of guilty to Counts four and five in the indictment in this Court, as those Counts are particularised, may be taken to be an admission by the accused as to circumstances significantly dissimilar to those pleaded and contended in relation to Counts one to three. Whereas these latter counts are largely dependent upon establishing the maintenance of dual identities purposefully by the accused to evidence her dishonesty in relation to Counts two or three, or the fact that she made an untrue representation in relation to Count one, Counts four and five, in proof of her acting dishonestly, require the Crown as particularised in the charges, to prove a deliberate failure to disclose employment, rather than establishing the existence of dual identities. Although, the fact that there were dual identities will be a relevant matter in consideration of those particular charges.

(v) The plea evidence, even if revealing a seeming repetition of past conduct, does not necessarily add to the strength of the existing evidence the Crown case relies upon in proof of Counts one to three. The evidence sought to be adduced in relation to Counts one and three reveals, in my mind, a strong case indeed.

39 These matters are of general, or threshold, importance in my assessment of the matter. No one matter is decisive and these matters have to be considered in conjunction with each other and more specific issues that arise.

40 I also note in relation to the matter, specifically dealing with each of the supposed bases of admissibility relied upon by the Crown, that there are other particular matters that arise for consideration. In relation to the tendency evidence sought to be relied upon by prosecution, I am concerned that the claimed tendency, as outlined above in my summation of the material, even allowing for the dissimilarities identified having regard to the facts in issue, is expressed in too general terms to have any significant probative value. It seems quite clear in this particular case, the more specific the tendency, the more it will affect the assessment of the probability of the fact in issue arising. In other words, the more significant will be the probative value of the evidence.

41 Here it seems, on the material available to me, that the fact in issue for consideration is whether the accused, in making what are said to be false declarations, knowingly or deliberately supply false information or withhold information required by her to be given to the relevant Commonwealth authorities. Of course, what is claimed to be the tendency is not the same situation as, referred to by the accused in her submissions in reply concerning the common element of stealing in allegations of robbery. But in her submissions, in support of the application, she specifically identified, as an example, specific tendencies which, if available, would clearly have more significant probative value than the general tendency sought to be relied upon by the prosecution.

(ii) There is no identical modus operandi as between the various parts of the plea evidence, nor as between the plea evidence and the charge conduct. The similarities in my view claimed by the Crown are not so great in any event to reveal a relevant tendency as opposed to simply revealing bad character on the part of the accused.

(iii) The purported tendencies revealed in the plea evidence are not necessarily admitted by the pleas of guilty of the accused, particularly to Counts four and five for reasons set out earlier. In other words, the “tendency” arising from the plea evidence may well be a matter of dispute contrary to what was submitted by the learned prosecutor.

(iv) The frequency of the conduct which evidences the alleged tendency, particularly that revealed in Counts four to five, would appear to be much greater than that alleged in relation to the counts to which the accused has pleaded not guilty.

42 Turning to coincidence evidence, there is, it should be said, one outstanding matter that strikes down the prosecution’s claim for admissibility of this evidence. Noting the general matters above, this feature that militates against submission of that evidence is that the plea evidence, with its own internal dissimilarities, does not have the relevant “striking similarity” contended by the Crown to the charged conduct.

43 I note the expression “striking similarity” used by the prosecution is a common law formulation that has been referred to in a number of decisions of the High Court, including Perry v The Queen, Sutton v The Queen and the like. I understand that it is not necessarily incumbent upon the party seeking to have the evidence admitted for coincidence purpose, to justify admission by pointing to “striking similarity”. But here it is a matter contended by the Crown as evidencing what is required to be established under s 98, that is, that the relevant events are substantially and relevantly similar and the circumstances in which they occurred are substantially similar, so as to give the relevant events “a significant probative value” in establishing “the improbability of events occurring coincidentally and the accused having a particular state of mind”.

44 Even where the similarities between the circumstances of particular counts in the indictment and particular parts of the plea evidence are greatest, those similarities do not have, in my mind, the character of “striking similarity” as the expression is understood. They do not reveal something unique to the accused which would necessarily reveal her state of mind at the time of the events giving rise to Counts one, two, three. It should be said in passing that the claim of the Crown in relation to the s 98 issue is weaker than its claim in relation to s 97 admission.

45 On analysis on the basis upon which the Crown puts the matter, the contention of the Crown in respect of the admissibility of the evidence pursuant to s 98 fails in limine. It should be pointed out in passing that, as I have earlier sought to analyse, there are between Counts one to three, the subject of the foreshadowed indictment, and between the various parts of the plea evidence, a number of dissimilarities such as to again strike down the claim of “striking similarity”.

46 One further aspect of the matter that arises, but it is not for a decision on my part and certainly not determinative, is that the way in which the Crown contended the matter - and this is no professional or personal criticism of the learned Crown Prosecutor, he argued the matter very skilfully and in particular detail - and was revealed in the discussion that I had with him. One of the possibilities that arose out of the Crown’s position in light of the varying quality of the similarities between the various matters to be considered, was the possibility or possibilities of both tendency and/or coincidence evidence being available only in relation to two of the three counts in the indictment and in respect of only some of the evidence contained in both the Local Court and District Court plea evidence.

47 This result, if it had been found to be appropriate in the circumstances, would have led to a very complicated case for the Crown to present and a very complex charge to the jury. This would have, in my view, ultimately detracted from the real strength of the Crown case in respect of the outstanding charges. However, it is not a matter that is determinative of the admissibility issue as it has been argued before me.

48 Even if the terms of ss 97 and 98 had been satisfied, it would seem on analysis of the matters that I have taken into account relevant to the assessment of the probative value of the evidence that in the circumstances of this matter, the probative value of the evidence, for either ss 97 or 98 purposes, would not substantially outweigh the prejudicial effect of the evidence sought to be admitted, or to put it another way, sought to be excluded by the accused. The significance of the probative value of the evidence is generally speaking very much diminished by the absence of key similarities, as I have earlier discussed. Of course the prejudicial effect, to use the words of s 101(2) Evidence Act, as outlined by learned counsel for the accused, is a matter of concern, particularly in the context of considering the way in which a jury might be properly directed to ensure that there was no misuse of the evidence by it if the evidence had been admitted.

49 In light of the view I have formed in relation to the matter, it is not incumbent upon me, in any greater detail, to analyse s 101, or its potential applicability to the circumstances of this case.

50 Thus, for the reasons I have given, I will not admit into evidence the material relied upon by the prosecution as evidence of ‘tendency and/or coincidence’.

oOo

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R v Ana Maria Valdebenito [2008] NSWDC 94

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CITATION:	R v Ana Maria VALDEBENITO [2008] NSWDC 94
HEARING DATE(S):	12/05/08, 13/05/08
JUDGMENT DATE:	14 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Refusal to admit into evidence material sought to be relied upon by the prosecution as 'tendency and/or coincidence' evidence.
CATCHWORDS:	CRIMINAL LAW - admissibility of evidence - tendency rule - coincidence rule
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
CASES CITED:	R v Lockyer (1996) 89 A Crim R 457 R v Lock (1997) 91 A Crim R 356 R v Fletcher [2005] NSWCCA 338 R v Merritt (unreported, 10 March 1999, NSWCCA) R v Zhang [2005] NSWCCA 437 Pfenning v The Queen (1995) 182 CLR 528 R v Ellis (2003) 58 NSWLR 700 HML & Ors v The Queen [2008] HCA 16 Perry v The Queen [1982] HCA 75 Sutton v The Queen [1984] HCA 5
PARTIES:	D.P.P. (Commonwealth) Ana Maria Valdebenito
FILE NUMBER(S):	07/11/0695
COUNSEL:	D Lee (Crown) N Carroll (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecution (Crown) George Sten & Co (Accused)