R v Ellis

[2003] NSWCCA 319

Reported Decision: 58 NSWLR 700
144 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v ELLIS [2003] NSWCCA 319 revised - 27/04/2004
HEARING DATE(S):	21 August 2003
JUDGMENT DATE:	5 November 2003
JUDGMENT OF:	Spigelman CJ at 1; Sully J at 101; O'Keefe J at 102; Hidden J at 103; Buddin J at 103
DECISION:	Appeal dismissed.
CATCHWORDS:	EVIDENCE - tendency and coincidence - criminal trial - admissibility - multiple counts on indictment - where trial judge admitted evidence of each offence as tendency and coincidence evidence in relation to all other offences - where trial judge applied Evidence Act 1995 s 101 in terms - whether test in Pfennig v The Queen applicable - whether tendency and coincidence evidence admissible.
LEGISLATION CITED:	Crimes Act 1900 ss 112, 113, 344A Crimes Act 1958 (Vic) s 398A Evidence Act 1995 ss 94, 97, 98, 99, 100, 101, 110, 111, 135, 137, 141 Evidence Act 1997 (Qld) s 132A
CASES CITED:	Conway v The Queen (2000) 98 FCR 204 Foley (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Stein JA and Bruce J, 5 June 1997) Harriman v R (1989) 167 CLR 590 Hoch v The Queen (1988) 165 CLR 292 Markby v The Queen (1978) 140 CLR 108 Papakosmas v the Queen (1999) 196 CLR 297 Perry v The Queen (1982) 150 CLR 580 Pfennig v the Queen (1995) 182 CLR 461 R v AH (1997) 98 A Crim R 71 R v Andrews [2003] NSWCCA 7 R v Blick (2000) 111 A Crim R 326 R v Boardman [1975] AC 421 R v Camilleri (2001) 119 A Crim R 106 R v Colby [1999] NSWCCA 261 R v Daley [2001] NSWSC 1211 R v Folbigg [2003] NSWCCA 17 R v Fordham (1997) 98 A Crim R 359 R v Holt [2001] NSWSC 232 R v Joiner [2002] NSWCCA 354 R v Le [2000] NSWCCA 49 R v Leask [1999] NSWCCA 33 R v Lock (1997) 91 A Crim R 356 R v OGD (No 2) (2000) 50 NSWLR 433 R v S [2001] QCA 501 R v Veitch [1999] NSWCCA 185 R v WRC (2002) 130 A Crim R 89 Sutton v The Queen (1984) 152 CLR 528 W v R (2001) 189 ALR 633 WK v SR (1997) 22 Fam LR 592
PARTIES :	Regina Darren Douglas Ellis
FILE NUMBER(S):	CCA 60764/01
COUNSEL:	S J Odgers SC / H Dhanji (Appellant) R Cogswell SC / G Rowling / J Quilter (Crown)
SOLICITORS:	D J Humphreys (Appellant) S E O'Connor (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0453
LOWER COURT JUDICIAL OFFICER :	Holt ADCJ

60764/01

SPIGELMAN CJ
SULLY J
O’KEEFE J
HIDDEN J
BUDDIN J

Wednesday 5 November 2003

REGINA v Darren Douglas ELLIS

FACTS

Following a trial before Holt ADCJ and a jury, the Appellant was convicted on 24 October 2001 of eleven counts of break enter and steal or attempted break enter and steal with intent or aggravated break enter and steal. The offences were all committed on commercial premises in rural New South Wales, with access to the premises obtained or attempted by removing an entire pane of glass from its seals. Originally there were thirteen such counts on the indictment. Before the trial commenced, an issue arose as to admissibility of evidence of each offence as tendency or coincidence evidence in relation to all other offences on the indictment. His Honour concluded that such evidence was admissible in respect of eleven of the thirteen counts, and, accordingly, permitted a joint trial to proceed on those counts. His Honour’s reasoning failed to refer to the test in Pfennig v The Queen (1995) 182 CLR 461. The Appellant appealed against his convictions, submitting that Holt ADCJ applied the wrong test for admission of the tendency and coincidence evidence and wrongly admitted that evidence.

HELD

A. (per Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ agreeing)
The statutory regime for the admissibility of tendency and coincidence evidence found in the Evidence Act 1995 was intended to cover the relevant field to the exclusion of common law principles previously applicable. The use of the word “substantially” to indicate the extent to which the probative value of tendency or coincidence evidence must outweigh its prejudicial effect in s101(2) is a legislative formulation, not derived from prior case law. [70], [74], [83], [84]

Papakosmas v The Queen (1999) 196 CLR 297 applied.

B. (per Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ agreeing)
The continued application of the common law test for admissibility of tendency and coincidence evidence explicated in Pfennig v The Queen (1995) 182 CLR 461 is inconsistent with the statutory requirement in s101(2) for a balancing process between probative force and prejudicial effect, during which the court must make a judgment that probative value substantially outweighs prejudicial effect. [88], [89], [94], [95]

Pfennig v The Queen (1995) 182 CLR 461 considered.

C. (per Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ agreeing)
His Honour was correct to adopt and apply the terminology of the legislation, rather than the pre-existing common law test. Application of the common law test may result in a trial judge failing to give adequate consideration, pursuant to the statutory formula, to the actual prejudice in the specific case that the probative value of the evidence must substantially outweigh. [90], [94]

D. (per Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ agreeing)
The line of authority applying the common law Pfennig test to the statutory requirements for admissibility of tendency and coincidence evidence is incorrect. However, there may be cases where, on the facts, it would not be open to conclude that the statutory test for admissibility is satisfied unless the common law test is also satisfied. [48], [50], [96]-[98]

R v Lock (1997) 91 A Crim R 356; Foley (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Stein JA and Bruce J, 5 June 1997); R v AH (1997) 98 A Crim R 71; R v Veitch [1999] NSWCCA 185; R v Fordham (1997) 98 A Crim R 359; R v Colby [1999] NSWCCA 261; R v WRC (2002) 130 A Crim R 89; R v Joiner [2002] NSWCCA 354; R v Folbigg [2003] NSWCCA 17 not followed.

E. (per Hidden and Buddin JJ; Spigelman CJ, Sully and O’Keefe JJ contra)

Tendency and coincidence evidence is likely to be highly prejudicial, therefore the statutory test for admissibility remains one of very considerable stringency. [99], [104], [105]

ORDER

Appeal dismissed.

60764/01

SPIGELMAN CJ
SULLY J
O’KEEFE J
HIDDEN J
BUDDIN J

Wednesday 5 November 2003

REGINA v Darren Douglas ELLIS

Judgment

1 SPIGELMAN CJ: The Appellant appeals to this Court against 11 convictions for break enter and steal or attempted break enter and steal with intent or aggravated break enter and steal contrary to ss112(1), 112(2) and 113(1) together with s344A of the Crimes Act 1900. There is a single ground of appeal as follows:

“There has been a miscarriage of justice in that the learned trial judge applied a wrong test in determining whether to admit certain tendency and coincidence evidence and wrongly admitted that evidence.”

2 Originally there were 13 such counts on the indictment. Acting Judge Holt permitted 11 of the counts to be heard together. His Honour did so on the basis that he would admit the evidence on each of those counts on each other count and, accordingly, that a joint trial could proceed.

3 The offences were committed in a number of rural towns in New South Wales including Bathurst, Cowra, Yass, Mudgee and Wagga Wagga.

4 Before the trial commenced an issue arose as to admissibility of the evidence. The Crown relied on the evidence to which I will hereinafter refer on both a tendency and coincidence basis. It gave notices under both s97 and s98 of the Evidence Act 1995 (see transcript 8/10/01 at p6). The issue in the appeal is whether on either basis, i.e. tendency or coincidence, his Honour applied a wrong test by referring only to the terminology found in s101(2) of the Evidence Act 1995 (“the Act”), which I will hereinafter set out and which applies to both tendency and coincidence evidence.

Evidence in Respect of Each Count

5 To understand how and on what basis the tendency and coincidence evidence was admitted on the trial of the Appellant, it is necessary to refer in some detail to the events of November 1996, and January-April 1999, during which the various break and enters were committed or attempted.

6 The first and second of the thirteen counts on the indictment related to events that took place on 24 and 25 November 1996 at Bathurst and Orange respectively. On the evening of 24 November 1996, after the owner had locked it up for the night, a glass panel was removed from the front sliding door to Heath’s Café at Bathurst. It had been placed, intact, against the front counter. Property including toys, video games, cigarettes and wine was missing. No identifiable fingerprints were able to be taken from the glass. The same evening, the East Orange Newsagency was also broken into. A glass pane from the lower section of the door was removed and later found inside the premises. Some cigarettes were removed from a display. The internal burglar alarm was activated. The Senior Constable who attended the scene at about 1:30am on 25 November gave a statement indicating that although he had seen a similar modus operandi in break and enters when working in Sydney some six years previously, he had not observed it since.

7 Apart from the unusual modus operandi and the tendency evidence sought to be introduced by the Crown, there was no other evidence connecting the Appellant to these two offences and his Honour disallowed that evidence in relation to the first two counts and refused to include counts one and two in the trial. His Honour also refused to admit as tendency evidence the evidence of four break, enter and steal matters that had taken place in 1994 in which the Appellant had admitted his guilt on an earlier occasion, or of a break, enter and steal at Wodonga in Victoria on 21 April 1999, in which the Crown alleged a similar, unusual, modus operandi was used.

8 There was a gap of more than two years before the next series of offences with which the Appellant was charged. These offences, which were the subject of counts three and four on the initial indictment and became counts one and two in the trial, took place on 12 January 1999 in Bathurst and Mudgee. The first incident occurred at Heath’s Café in Bathurst on the night of 12 January 1999, after the owner had locked up and departed for the evening. The glass from the bottom section of one of the front doors was removed and when the café’s owner returned to the shop the following morning, he discovered that about $7000 worth of cigarettes, as well as an electric drill, a CD player and a cassette player were missing. No finger marks were found on the glass. That same night, a glass window pane near the front entrance of the Fiesta Chicken Shop in Mudgee was removed, along with its rubber seal and steel edging, and the alarm system activated. Nothing was stolen, and a piece of glass matching that from the window pane was later found in the laneway behind the shop.

9 Unlike the first two counts on the initial indictment, there was other evidence linking the Appellant to these offences. On 12 January 1999, Kevin John McKenzie rented a car with registration number 432-DWZ from All-Country Car Rentals in St Marys in Sydney. Kevin McKenzie is the Appellant’s stepfather. The car was rented for one day, and upon its return on the 13th of January it had travelled 830 kilometres over the course of the rental period. Detective Senior Constable Nicholson, the officer in charge of the matters being tried before Holt ADCJ, gave evidence of the distances between Sydney, Bathurst and Mudgee, and calculated the round trip between those three places as being 697 kilometres. Attina Georgopoulos, who was employed at the time as a customer service officer for All Country Car Rentals, gave evidence that she had attended to the lease of the vehicle at 3:50pm on 12 January, and that the car had been returned at 4pm on 13 January. The return was supervised by Alan Rogerson, who was the proprietor of the business at St Marys.

10 Counts three and four in the trial were a break, enter and steal and an attempted break and enter with intent to steal that took place in Cowra on the evening of 15 January 1999. Some time after the premises of the Downtown Milk Bar in Cowra had been locked and secured at approximately 9pm, a glass window panel from the front of the shop was removed. It was found intact the following morning on the right hand side of the shop’s interior, with its rubber beading removed. Approximately $5600 in cash, two cash registers, a large quantity of cigarettes and some soft drinks and chocolates were missing. The police recovered the two cash registers on 16 January in a culvert on the side of the road towards the township of Koorawatha, which is situated south of Cowra en route to Young. Senior Constable Terry of the Cowra Police gave evidence that the cash registers and glass were fingerprinted but no prints were found. These events became the subject of count three.

11 At about 10:30pm on 15 January 1999, Angela Parris, co-owner of Parris’ Milk Bar, situated about 100m away from the Downtown Milk Bar in Cowra, secured the shop for the evening. The following morning, Con Parris, the other co-owner, noticed a piece of black rubber lying on the concrete outside the front of the shop. Further investigation revealed that the strip of rubber had apparently been removed from the large window beside the front door of the shop. That window was loose in its frame. Murray Alchin, a glazier in Cowra who inspected the premises with Senior Constable Terry on the morning of 16 January, gave evidence that the outside glazing rubbers and the aluminium piping bead had been removed from the window of Parris’ Milk Bar, which was sufficiently large that, according to Mr Alchin, two people would be needed to remove it. Mr Alchin also gave evidence that a fair knowledge of the glass industry would have been required to remove the glass at the Downtown Milk Bar, because, unusually, the aluminium beading was located on the inside of the window in that case. A particular type of glass-lifting sucker would have been required. Mr Alchin said that “whoever did this was very knowledgeable in this industry” (T270) and that in his opinion, the same person was involved in both counts three and four because of the way both “jobs” were done (T272 and 279).

12 The events the subject of count five in the trial took place in Young on the evening of 15 January 1999. Andrew Xenophos, the co-owner of the Young Charcoal Chicken shop, left the premises securely locked at approximately 9:15pm. Upon arriving at work the following morning, he discovered that a glass pane from the front of the shop was missing from its frame and had been placed on the ground near the front door. One corner of the glass was damaged. About $2000 worth of cigarettes had been taken. The co-owner later found the rubber strips from the window in a garbage bin outside the shop, and aluminium stripping apparently from the window in bushes several doors up the street. Senior Constable Kelly Slater’s statement was read to the court below. She attended the premises on 16 January 1999 and observed the glass pane being fingerprinted. No fingerprints were found. She noted that in over seven years that she had been stationed at Young, she had never witnessed this glass removal method being used in a break and enter.

13 Evidence linking the Appellant to counts three, four and five at the trial was supplied by mobile telephone records obtained from Telstra and annexed to the statements of Megan Foster and John MacKay. Mr Ian Seaford, a principal telecommunications technical officer, gave evidence in relation to the telephone calls made from the mobile phone leased by the Appellant. He prepared a map showing the outer limits of where each call from the mobile phone could have been made, which became Exhibit H at the trial. On the morning of 16 January 1999, the telephone leased by the Appellant made calls from areas within 35 kilometres of the base station at Yass at 8:05 and 8:06am, from Gunning at 8:32am and from Fairfield at 10:29am.

14 Counts six and seven at the trial were the result of events taking place on the same night, 19-20 February 1999, in Wagga Wagga. The owner of the Silver Tree Café locked and departed the premises at approximately 9:30pm on 19 February. Upon returning at 8:30am the next morning, he noticed that the glass was missing from the bottom of the window on the left side of the shop. The refrigerator had been pushed away from the window and cash and cigarettes were missing, to a value of $1120.

15 Mr Kevin Boys was the co-owner and operator of The Place Newsagency in Wagga. He arrived with his wife to start work shortly after 4:50am on 20 February and noticed that the lights at the rear of the shop that normally remain switched on 24 hours a day were not lit. Mr Boys unlocked the door and was in the process of pulling it open when a male person started running towards Mr and Mrs Boys, saying, “Get out of the fucking way, I’m going to stab you”. Both Mr and Mrs Boys gave evidence that the man was wearing clear plastic or latex gloves and carrying a red, white and blue bag. He ran into Mr Boys and knocked him over, before running around the corner of the shop and down the laneway at the side of the shop towards the ambulance station. Another bag similar to the one the assailant had been carrying was lying under the counter filled with loose packets of cigarettes from the display in the shop. The glass pane in the bottom half of the front sliding door had been removed and its plastic beading was on the floor of the shop. The glass pane itself was later found intact, outside the rear of the shop. No fingerprints were found on it. Cartons of cigarettes to a value of approximately $1357 were missing.

16 Mr and Mrs Boys both gave evidence at trial that the assailant was approximately 5’7” in height, with fair hair cut above his collar and of average build. Mr Boys gave evidence that the man was Australian or European looking and had no distinctive accent. Mrs Boys later participated with the police in the construction of a com-fit image, which became exhibit J in the trial. Neither she nor Mr Boys were able to identify the assailant from a video collage of photographs shown to them at Wagga police station.

17 At 4:30pm on 19 February 1999, the Appellant’s stepfather again hired a vehicle, registration number 431-DWZ from All Country Car Rentals. The rental details were noted by Attina Georgopoulos. The car was returned at approximately 5pm on Saturday 20 February 1999, having travelled 1158 kilometres. Although the refund of the deposit was signed by Mr McKenzie, (the original hirer of the vehicle) and dated 22 February 1999, Ms Georgopoulos recorded “Darren Ellis picked up $498 only” at the bottom of the page, and this notation was signed “D Ellis”. Ms Georgopoulos gave evidence that the Appellant was present with Mr McKenzie when he came to pick up the vehicle two out of the four times that the latter rented a vehicle from All Country Car Rentals. She correctly identified the Appellant from a video collage on 19 August. Mr Rogerson and Ms Georgopoulos both gave evidence that the rental documents were sometimes pre-signed when a vehicle was to be returned on a Saturday, since All Country Car Rentals was at that time not open after midday on a Saturday. Detective Nicholson gave evidence that the distance from Sydney to Wagga is 460 kilometres, thus a return journey would be 920 kilometres.

18 On 8 March 1999, Mr and Mrs Boys secured The Place Newsagency in Wagga at about 6pm. The newsagency had recently been restocked with cigarettes following the previous break-in. At about 4:30am the following morning they returned to find that the bottom half of the fixed window on the left hand side of the door had been removed. The glass pane that had been removed was slightly chipped or cracked and was leaning against the shop fittings on the right hand side of the shop. The aluminium beading was beside the glass pane on the floor of the shop. Approximately $2200 worth of cigarettes had been taken. These events were the subject of count eight at the trial.

19 At 5pm on 8 March 1999, the Appellant’s stepfather hired vehicle 432-DWZ from All Country Car Rentals. It was returned at 2:30pm the following day, having travelled 1194 kilometres. Detective Nicholson gave evidence that the distance from Sydney to Wagga is 460 kilometres, thus a return journey would be 920 kilometres.

20 A car with a matching registration plate was seen by Phillip Hoey, an Ambulance Station Operator on duty overnight at the Riverina Operations Centre, which was located about 150 metres to the rear of The Place Newsagency in Wagga. At about midnight, Mr Hoey heard a car door close and went out onto the roof of the ambulance station. He saw a person getting out of the car and looking around and thought that this behaviour was abnormal, so wrote the car registration number down on his hand. Mr Hoey gave evidence that the person was Caucasian, of medium build, had “blondie” coloured hair (T193) and was wearing shorts, joggers and no shirt. The person disappeared for 20 to 30 seconds behind an electricity substation and reappeared with a large red and blue striped bag. The person looked up and down a few times, and approached the vehicle, seeming to be in a hurry. He threw the bag in the back of the vehicle, got into the vehicle and drove away quite rapidly without the vehicle lights on. After the incident, Mr Hoey made a call to Wagga police on the police radio. He was subsequently unable to identify the Appellant in a video collage of photographs.

21 Ian Seaford gave evidence that there were two telephone calls made from the Appellant’s mobile telephone in the early hours of 9 March 1999, at 12:55am and 1:21am. Both were made in the Albury billing sector, which was just to the south of Wagga Wagga. At 5:56pm on 8 March, a call had been made from the Liverpool area on this mobile phone. Detective Nicholson gave evidence that there is 126 kilometres between Wagga and Albury.

22 The events that became the subject of count nine at the trial took place on 15 March 1999 in Yass. James Patrick McGrath secured the Yass Newsagency at approximately 7pm on 15 March, leaving approximately $1300 in cash in the open drawers of its three cash registers. At about 11:30pm, Mr McGrath received a telephone call from the police, and upon arrival at the newsagency noticed that a pane of glass from a window next to the door of the shop had been removed. The empty cash register drawers were stacked on the floor and the cigarette and battery displays above the counter were also empty. A box containing phone cards had been emptied and was sitting on the counter. The total value of property stolen was estimated by Mr McGrath as between $10,000 and $12,000.

23 The following day, the missing glass pane was located in a park about 100 metres away from the newsagency. Mr McGrath telephoned Mr Graham Jewell, who attended the premises and repaired the window that morning. Mr Jewell gave evidence that he had replaced hundreds of panes of broken glass over the course of his career, but on only one previous occasion had he seen glass panes removed in the same fashion, at a break and enter at the Yass Soldiers’ Club about twelve months previously.

24 The Appellant’s stepfather hired vehicle registration number 431-DWZ from All Country Car Rentals at about 4:30pm on 15 March 1999. The vehicle was returned the following day, after a journey of 783 kilometres. There does not appear to have been any evidence from Detective Nicholson as to the distance between Sydney and Yass. Mr Rogerson (proprietor of All Country Car Rentals) recalled that when the vehicle was returned on this occasion, Mr McKenzie was accompanied by a man of slim to average build, with sandy coloured hair and heavily tattooed legs. The man later drove off in a VK or VL series Commodore. Deborah Lee, the Appellant’s de facto partner at the time, gave evidence that he had a lot of tattooing on the bottom part of his legs.

25 At about 10:45pm on 15 March, Senior Constable John Monkley and Sergeant Sternbeck were on patrol in Yass when they saw a white Commodore sedan parked in Meehan St, Yass, close to the newsagency. Sergeant Sternbeck noted the number plate, 431-DWZ. A man, described in evidence by Senior Constable Monkley as of medium build, about 5’10” and wearing a sloppy joe-style jumper and jeans was packing items into the boot of the vehicle. Sergeant Sternbeck described the man as being in his mid-20s, of medium build and similarly dressed. The police saw the vehicle again about seven or eight minutes later and ascertained that the driver was the only person in the vehicle. Senior Constable Monkley noted as the vehicle turned that its number plate was 431-DWZ. The officers commenced following, but were only able to follow for about 50 metres before the vehicle got too far ahead. The officers contacted police radio before returning to the newsagency.

26 On 17 March 1999, police executed search warrants at 6 Somov Place, Tregear, the residence of Kevin and Jennifer McKenzie, the accused’s stepfather and mother, and at 18 Mawson Road Tregear, the residence of the accused and his de facto partner, Deborah Lee. At 6 Somov Place, a carton of Winfield Blue cigarettes, a striped plastic bag containing a number of assorted batteries with Yass Newsagency price stickers on them, eleven packets of Holiday brand cigarettes and a large quantity of unopened packets of batteries were seized. At 18 Mawson Road, a box of Tally Ho cigarette papers, four packets of tobacco, one packet of Winfield Blue cigarettes and one box of Longbeach cigarettes containing five individual packets were seized. On 6 July 1999, a box of batteries and cigarette packets was shown to Mr McGrath at Yass Police Station. Mr McGrath recognised the majority of the batteries as the property of Yass Newsagency. He was also shown some packets of cigarettes, which were consistent with the brands carried by the newsagency, but was unable to positively identify them as being from his business.

27 Counts 10 and 11 at the trial both related to break-ins at the Yass Caltex Service Station at 228 Comur Street, Yass. Count 10 was the result of events of the night of 14 April 1999. At the end of his afternoon shift on that day, Raymond Hill secured the Yass Caltex Service Station site as per company instructions. The next morning, Simon Bumbar arrived for work at around 6am, and noticed some rubber stripping lying to the left of the front door. When the manager of the service station arrived for work, he discovered that the stripping came from the bottom of the front door. He telephoned the police. Senior Constables Tait and Baxter attended the premises at about 8:35am and observed that the aluminium angle from the bottom of the door was loose where the rubber stripping had been pulled out, and that the glass was wobbling.

28 Michael Timmer owned a bakery over the road from the Yass service station. On or about 14 April 1999, he saw a man standing at the service station looking in the window at about 3.30am. He described the man as between 18 and 28 years of age, of medium solid build, wearing dark clothes. Mr Timmer gave evidence that the man disappeared around a corner and a few minutes later a VH or VK Holden Commodore drove out of Polding Street near the service station. The car was described by Mr Timmer as having mag wheels and carrying a P plate, similar in appearance to the car he positively identified two weeks later in relation to count 11 at the trial. There was only one person in the car at the time. Deborah Lee, the accused’s partner at the time, gave evidence that she was the registered owner of Holden Commodore TOW-976, a car which had mag wheels and which was used by the accused, who had a provisional licence and drove the car with P plates. On 28 April 1999, police executed a search warrant and took photographs of the accused and of a Commodore TOW-976 at 18 Mawson Road, Tregear.

29 On 27 April 1999, Anne Pasparene secured the premises of the Yass Caltex Service Station at about 9.30pm. She left the office door open, which was normal practice when the floors of the office were due to be polished by the cleaner. When the cleaner arrived at 5.15am on 28 April, he noticed that the lower section of the glass sliding front door was completely missing. He contacted the manager, and spoke to police at the premises at around 6am. The service station manager, Michael Waters, arrived at about the same time. The glass pane from the front door had been completely removed and was sitting inside the premises. Cigarettes to the value of $2264, and $1100 in cash had been taken from the office. These events were the subject of count 11 at the trial.

30 At 3.30am on 28 April 1999, Michael Timmer, who had commenced his baking for the day, heard a noise from the back of the Yass Caltex Service Station and got into his delivery vehicle to investigate. About 800 metres up the road, he saw a car coming towards him. When it passed him, he recognised the car as being the same Holden Commodore he had seen a fortnight previously, with mag wheels. Mr Timmer turned around to follow the car, which headed towards Canberra. He put his lights on high beam and noted the registration plate, which was TOW-976. The car had a P plate on. Mr Timmer returned to his shop and rang the police, at which point he observed the same car driving past, heading out of town in the other direction.

The Trial Judge’s Ruling

31 Holt ADCJ set out the facts and the relevant evidence in a manner which was not contested on this appeal. He identified the relevant tendency/coincidence evidence on which the Crown relied in the following way:

“1. The type of premises which was the subject of the break enter (or attempt as the case may be) were small retail outlets in country New South Wales which stocked similar types of merchandise.
2. The goods stolen or available inside of the shop where the attempts to enter was unsuccessful were of a similar type, mainly cigarettes and or cash.
3. The entry had been effected by adopting an unusual modus of operation, namely, the removal from the outside of the rubber or aluminium seals securing the glass panel in the entry door or windows and removing the panel without breaking it, and leaving the panel in the vicinity of the premises broken into.”

32 His Honour referred to the evidence before him from a number of police officers which indicated that the offence of break enter and steal rarely occurred in the manner identified in point 3 above and his Honour concluded:

“In view of this evidence it is clear this is an unusual mode of breaking and entering into premises.”

33 His Honour then determined the question of admissibility by applying the test emphasised in the following passage to the evidence:

“The next question is whether the tendency evidence the Crown seeks to call together with other evidence to be adduced has significant probative value. And whether it passes the test under s 101 of The Evidence Act . Section 101 (2) of the Evidence Act says:
‘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 affect it may have on the defendant.’
In relation to counts 9, 10, 11, 12 and 13 in the indictment, there is evidence of sightings of a car with which the Crown says the accused was associated in the town where the offences are alleged to have occurred.
As to counts, 3, 4, 8 and 9 there is evidence of a car with which the Crown says the accused was associated with which was hired shortly before the time of the alleged offences and returned shortly thereafter together with evidence available of the mileages done.
As to counts 5, 6, and 7, there is no evidence relating to the use of a car but a phone call was made from a phone leased to the accused from Yass at 8.05 and 8.06 on the morning after the offences referred to in counts 7, 8 and 9. Later a cash register was found at Koorawatha relating to count 6. Koorawatha being a village between Cowra and Young.
Yass is south west of Young, but on the Hume Highway, which leads to Sydney, where at 10:29 another phone call was made on this phone from Fairfield, and again earlier a call was made from Gunning, which is near the Hume Highway and between Yass and Sydney at 8.32am.
As to counts one and two, there is no car, phone, or other evidence which the Crown will tender to link the accused with the crimes, apart from the suggested tendency evidence. In my view, the tendency evidence in relation to count one and two by itself is not of significant probative value and should be disallowed.
As to the other counts, namely, counts three, four, five, six, seven, eight, nine, ten, eleven, twelve, and thirteen, in my view, the proposed tendency evidence, together with the other evidence to be called, has, in my view, significant probative value; and as to the test in s 101 of the Evidence Act, in my view, the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused .” (Emphasis added.)

34 His Honour determined that the evidence was admissible on each count, other than the first two counts. His Honour concluded that it was appropriate for the remaining eleven counts to be heard together, but counts one and two were not included in the trial. His Honour refused another tendency evidence application but no issue arises on this appeal with respect to that decision.

35 Having considered the matter on a tendency basis, his Honour then proceeded to determine the admissibility of the evidence on a coincidence basis. He found that the separate test in s98(2) was also made out as follows:

“The Crown also seeks to use the evidence I have allowed in counts three to thirteen inclusive as tendency evidence, to be used as evidence of coincidence under s 98 of the Evidence Act. In my view, the evidence fulfils the requirements of that section, but I also find the requirements of s 98 (2) in the affirmative, and in my view, under s 101 of the same Act, the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused .” (Emphasis added.)

The Statutory Scheme

36 The relevant sections of the Evidence Act 1995 are:

“97(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:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(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.
(2) Subsection (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.”
“98(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:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(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.
(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.
(3) Subsection (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.”
“101(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.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
“135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”
“137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

37 The Dictionary of the Act contains the following relevant definitions:

“ coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.”
“ coincidence rule means section 98(1).”
“ tendency evidence means evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection.”
“ tendency rule means section 97(1).”
“ probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

38 It is also material to note s141(1):

“141(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”

The Issue on the Appeal

39 This Court has convened a bench of five because of a conflict of authority that has arisen with respect to the proper application of s101 of the Evidence Act 1995 in the light of the prior common law position determined by the High Court.

40 In Sutton v The Queen (1984) 152 CLR 528 at 564, Dawson J said with respect to the admissibility of similar fact evidence:

“Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence. If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the accused, then he ought not admit it because in those circumstances the evidence cannot be said to have a sufficiently strong probative force. Prejudice may operate when neither logic nor experience necessarily require the answer that the evidence points to the guilt of the accused and that being so the probative force of the evidence will not outweigh or transcend its prejudicial effect.”

41 The test of “strong probative force”, which Dawson J invoked, had frequently been applied. (See e.g. R v Boardman [1975] AC 421 at 444 quoted in Markby v The Queen (1978) 140 CLR 108 at 117; Perry v The Queen (1982) 150 CLR 580 at 586, 589, 604 and Sutton at 533). That test is reflected in each of ss97(1)(b) and 98(1(b) in terms of the court determining whether the evidence “would … have significant probative value”.

42 The final sentence of the extract from Dawson J in Sutton invoked a process of balancing probative force and prejudicial effect, which had emerged in R v Boardman as the appropriate test for the admissibility of similar fact evidence.

43 In Hoch v The Queen (1988) 165 CLR 292 at 296, the joint judgment of Mason CJ, Wilson and Gaudron JJ said:

“In Sutton Dawson J. expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.”

44 The reasoning in Hoch was expressly adopted and extended by the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig v The Queen (1995) 182 CLR 461 where their Honours said at 482-483:

“Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.”

45 Section 101 of the Evidence Act poses the test in different terms as follows:

“… unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”

46 The issue that arises in these proceedings is whether the proper construction of s101, in its context, requires the Pfennig test to be applied.

47 This matter has been the subject of differences of opinion in the authorities.

48 In this State, commencing with the first relevant authority in a single judge decision of the then Chief Judge at Common Law, Mr Justice Hunt, in 1997, the preponderance of authority has been in favour of the continued application of the Pfennig test. (See R v Lock (1997) 91 A Crim R 356; Foley (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Stein JA and Bruce J, 5 June 1997); R v AH (1997) 98 A Crim R 71; R v Veitch [1999] NSWCCA 185; R v Fordham (1997) 98 A Crim R 359; R v Colby [1999] NSWCCA 261).

49 Doubts were expressed in this regard in R v Fordham at 369 per Howie AJ and in R v Holt [2001] NSWSC 232 at [13] per Sully J. Sustained criticism has appeared in three judgments of Hulme J (R v Leask [1999] NSWCCA 33 at [53]; R v Le [2000] NSWCCA 49 at [112]-[116] and R v Andrews [2003] NSWCCA 7). In each of Andrews and Le, Hidden J agreed with Hulme J. Heydon JA noted the difficulty of the issue in Andrews. Simpson J, with whom Mason P and Dowd J agreed, expressed her agreement with Hulme J’s comments in Le in R v OGD(No 2) (2000) 50 NSWLR 433 at [52]. See also her Honour’s observations in R v Daley [2001] NSWSC 1211.

50 Nevertheless, the line of authority commencing with R v Lock has been affirmed, albeit in particular terms, in judgments of Hodgson JA in the three most recent cases R v WRC (2002) 130 A Crim R 89 at [25]-[29]; R v Joiner [2002] NSWCCA 354 at [37] (Simpson J and Smart AJ agreeing) and R v Folbigg [2003] NSWCCA 17 at [27] (Sully and Buddin JJ agreeing).

51 In the ACT, where the Evidence Act 1995 (Cth) applies, the same issue has arisen. The position taken in this State has not been adopted. (See W v R (2001) 189 ALR 633 especially per Miles J at [53] and Madgwick J at [101]). To similar effect is the approach of the Full Court of the Family Court in WK v SR (1997) 22 Fam LR 592 at 604-605 and the Full Court of the Federal Court in Conway v The Queen (2000) 98 FCR 204 at [97] and [102]. The preponderance of authority outside of this State supports the direct application of the terms of the statutory test and not the application of the Pfennig test. Tasmania has recently adopted the Evidence Act, but the issue has not arisen in that State.

52 Pfennig continues to be applied in the Northern Territory, South Australia and Western Australia, which have not adopted the Evidence Act. In Queensland and Victoria, the test was reversed by legislative intervention. (The Evidence Act 1997 (Qld) s132A and R v S [2001] QCA 501 at [32]; Crimes Act 1958 (Vic) s398A and R v Camilleri (2001) 119 A Crim R 106 at 123 and 125.)

53 The issue has been recognised on a number of occasions in special leave applications before the High Court. However, at this stage, no suitable vehicle for determining the issue in that Court has arisen.

54 The Appellant’s contention on this appeal was that the Pfennig formulation was required to be applied in any case in which the exclusionary rule found in s101(2) falls to be applied. It was not contended that this turned on the facts of the present case.

Did the Trial Judge Apply the Pfennig Test?

55 I have set out his Honour’s reasoning above. There is no reference in that reasoning to the Pfennig test, nor any terminology identifying the evidence to be circumstantial evidence, to which the approach determined in Pfennig is to be applied. His Honour referred, in terms, to the test under s101(2) of the Evidence Act and applied that test in terms. (See the parts of the judgment emphasised in paras [33] and [35] above.)

56 When the Crown handed up its written submissions, outlining the use it intended to make of the evidence in one count on each other count, it was his Honour who said:

“… out of our bench book here we’ve got a few notes on tendency and coincidence evidence. I have a couple of copies made of that and whilst I’d like you both to regard it as being confidential, I’ll give you a copy each and you might care to read that, it may save us a bit of time …”

57 The Bench Book to which his Honour referred was the Criminal Trial Courts Bench Book prepared by the Judicial Commission of New South Wales for the use of judicial officers. It was at that time confidential, but has subsequently become publicly available.

58 In the course of the discussion of tendency and coincidence evidence, that Bench Book quoted the relevant passage from Pfennig and stated:

“The above principles … may be taken authoritatively to state the common law with respect to the admissibility of tendency and similar fact evidence in Australia. These principles may conveniently be compared to the standard of proof of evidence sought to be tendered under the tendency and coincidence rules of the Evidence Act 1995 (NSW)”.

59 There then followed some discussion of the statutory provisions and the Bench Book concluded:

“Prudence would dictate, however, that despite the lower statutory threshold, the higher Pfennig test should be applied when determining whether the relevant evidence has significant probative value, viz – is there a reasonable view of the evidence that is consistent with the innocence of the accused?”

60 After this material was made available to counsel, the trial judge was addressed on the applicability of Pfennig and subsequently asked for a copy of the judgment. He received further submissions from counsel then appearing for the Appellant, which urged on him the application of the Pfennig test. It does not appear that the Crown made any submission to the contrary.

61 In the light of these submissions, it is, perhaps, surprising that his Honour did not refer to the Pfennig test in any way in the judgment he subsequently delivered.

62 Although his Honour made available the Bench Book extract, there is nothing which indicates that he did so because of the references therein to Pfennig. The extract first distinguishes the position under the Evidence Act. It goes on to state that the Pfennig test “should be applied”, but does so in language of “prudence”, rather than of requirement.

63 It appears that his Honour concluded that it was not appropriate to express his judgment in any terms other than the specific statutory formulation. His Honour gave clear reasons for the decision, as quoted above, in which he applied, in terms, the statutory formulation in s101(2). I am not prepared in these circumstances, to conclude that his Honour did apply the Pfennig test, in some unstated manner, by way of explication of the statutory test.

64 It is, accordingly, necessary to decide whether the Pfennig test must still be applied.

Does the Pfennig Test Continue to Apply?

65 The Evidence Act as originally enacted by the Commonwealth Parliament, and subsequently adopted in New South Wales, was based in large measure on the reports of the Australian Law Reform Commission. However, that Commission’s reports are less useful on this subject than usual, because the formulation in the legislation eventually adopted was substantially different from that recommended.

66 In 1991, New South Wales and the Commonwealth each introduced Evidence Bills which were based on the Law Reform Commission’s draft bill, but differed in several respects from that draft bill and from each other. Officers of the Commonwealth and New South Wales worked together to develop a uniform law.

67 What is now s101 first emerged as a result of this process in an Exposure Draft of an Evidence Bill which was issued in August 1993 by the Attorney General of New South Wales. The explanation accompanying the proposed clause 101 was as follows:

“Clause 101 provides a further safeguard in relation to tendency and coincidence evidence adduced in a criminal proceeding by the prosecution to those set out in clauses 97-99 for all proceedings. In such a proceeding, tendency or coincidence evidence is not admissible against the defendant unless the probative value of such evidence substantially outweighs any prejudicial effect that it may have on the defendant. This safeguard reflects the rule applied at common law in relation to what is conventionally termed “similar fact” evidence: See Hoch v R (1988) 165 CLR 292; Harriman v R (1989) 167 CLR 590.”

68 When the Commonwealth Evidence Bill was introduced into the Commonwealth Parliament later in 1993, the Explanatory Memorandum stated, with respect to clause 101:

“174. This clause sets out a second exclusionary rule relating to tendency evidence and coincidence evidence in criminal proceedings. It applies in addition to the preceding requirements of this Part. The prosecution in a criminal proceeding is not to adduce tendency evidence about a defendant (except to explain or contradict tendency evidence adduced by the defendant) unless its probative value substantially outweighs any prejudicial effect it may have on the defendant.
175. Similarly the prosecution in a criminal proceeding is not to adduce coincidence evidence about a defendant (except to explain or contradict coincidence evidence adduced by the defendant) unless its probative value substantially outweighs any prejudicial effect it may have on the defendant.”

69 The reference to Hoch and Harriman in the New South Wales Exposure Draft was not of such a character as to suggest that the document was adverting to the particular passages in Hoch, which were subsequently adopted in the joint judgment in Pfennig. Nothing in the extrinsic material suggests that those responsible for the drafting and promotion of the legislation had any alternative formulation in mind than that which found its way into s101 in terms of probative value substantially outweighing prejudicial effect.

70 The line of authority in this State which asserts the continued applicability of the Pfennig test commenced at a time when there was an occasional tendency to construe the Evidence Act in the light of the pre-existing common law. This approach was decisively overruled by the High Court in Papakosmas v The Queen (1999) 196 CLR 297. In that particular case, what was in issue were the common law rules with respect to evidence of recent complaint in sexual assault cases. In that context, the Court made numerous references to the way in which the statute may be found to override the pre-existing rules.

71 Gleeson CJ and Hayne J said at [10]:

“… the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question has to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in the manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected. …”

72 Furthermore, Gaudron and Kirby JJ said at [46]:

“The Act specifies new rules of evidence in place of those developed by the common law.”

73 McHugh J said at [88]:

“In my opinion, the plain words of Pt 3 of the Act indicate that the legislature intended to change the law with regard to complaint evidence … . The Act has made substantial changes to the law of evidence. Notwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful.”

74 As finally enacted in the Evidence Acts of both the Commonwealth and New South Wales, there are a number of indications in the regime for tendency and coincidence evidence, found in Pt 3.6, that the Parliaments intended to lay down a set of principles to cover the relevant field to the exclusion of the common law principles previously applicable.

75 First, the change of terminology is itself significant. What is referred to as “coincidence evidence” was previously referred to as “similar fact evidence”. “Tendency evidence” was previously referred to as “propensity reasoning”. The use of different terminology with precise and comprehensive definitions, manifests an intention to state the principles comprehensively and afresh.

76 Specifically, the common law concept of “similar fact evidence” as variously applied in the case law, is not necessarily the same as the definition in s98(2) of “related events” in terms of events that “are substantially and relevantly similar” and occurring in circumstances which are “substantially similar”.

77 Furthermore, the express provisions for tendency evidence clarified the common law at the time of their introduction. The balance of authority was against extending the similar fact evidence principle to evidence which could be used only by way of propensity reasoning. (See e.g. Markby v The Queen (1978) 140 CLR 108 at 116; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528 at 533, 545-6, 556-7, 562-3; Pfennig at 480-1). Indeed, it was not until Pfennig itself that the admissibility of such evidence was established. In the Australian Law Reform Commission reports, the question of whether or not propensity reasoning should be permitted at all was very much in issue. (See e.g. Australian Law Reform Commission Report No. 26 Evidence: Interim Report, Australian Government Publishing Service, Canberra (1985), Vol. 1, pars 810 and 813; Australian Law Reform Commission Report No. 38 Evidence, Australian Government Publishing Service, Canberra (1987), par 176.)

78 It is also noteworthy that the Act provides a definition of “probative value”, as quoted above. Although the definition could well have been the same as at common law, the fact that such a term was defined at all suggests an intention to ensure consistency for purposes of the Evidence Act for the words, which appear in a number of different sections (see s135 and s137 quoted above). This suggests that the Act, even if substantially based on the common law, was intended to operate in accordance with its own terms.

79 By s94, the Act sets out the circumstances in which the tendency rule and coincidence rule do not apply, in a form not derived from any common law authority.

80 A novel system requiring notice was created by ss97(1)(a), 98(1)(a), 99 and 100.

81 Section 101 itself makes express provision for the situation in which tendency or coincidence evidence has first been adduced by the defendant in criminal proceedings. When that has occurred, the prosecution is permitted to adduce evidence to explain or contradict any such evidence.

82 Finally, s110 and s111 exclude the tendency rule in particular cases where evidence about character of an accused is adduced.

83 These various provisions indicate an overall intention to cover the relevant field in a comprehensive manner.

84 Of particular importance, however, is the formulation adopted in s101(2) requiring the probative value of tendency or coincidence evidence to “substantially outweigh” its prejudicial effect. The use of the word “substantially” is a legislative formulation, not derived from prior case law. Most significantly, it introduces a legislative formulation into the very territory which the majority judgment in Pfennig said was the function of the formulation adopted in that case. In the overall context of the significant changes made to the pre-existing common law to which I have referred above, I find this last consideration determinative.

85 It is in my view critical to note that the joint judgment in Pfennig identified the “no rational view” test as the means of determining how it is that probative force and prejudicial effect should be balanced against each other. The joint judgment in Pfennig said at 483:

“Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.”

86 The joint judgment reiterated the same proposition at 483-484:

“That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.”

87 See also at 485 where their Honours refer to “the criterion of probative force as against prejudicial effect and thus of admissibility”.

88 The continued application of a “no rational view” test is not, in my opinion, consistent with a statutory test which expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, i.e. “substantially”.

89 The reasoning in Pfennig applied the “no rational explanation” test to a common law principle that probative value outweighs prejudicial effect. That reasoning is, in my opinion, inapplicable to a statutory test that probative value substantially outweighs prejudicial effect.

90 The Parliament has sought to achieve the same general objective as that which Australian common law had developed by the time of Pfennig, but it did so by the use of precise and different terminology. His Honour was, in my opinion, correct to adopt and apply the terminology of the legislation, rather than the pre-existing common law test.

91 I find the following reasoning of McHugh J in Pfennig at 516 compelling:

“If evidence revealing criminal propensity is not admissible unless the evidence is consistent only with the guilt of the accused, the requirement that the probative value ‘outweigh’ or ‘transcend’ the prejudicial effect is superfluous. The evidence either meets the no rational explanation test or it does not. There is nothing to be weighed – at all events by the trial judge. The law has already done the weighing. This means that, even in cases where the risk of prejudice is very small, the prosecution cannot use the evidence unless it satisfies the stringent no rational explanation test. It cannot use the evidence even though in a practical sense its probative value outweighs its prejudicial effect.”

92 His Honour’s judgment was a dissent. Nevertheless, this reasoning is directly apposite to the issue now before the Court, which is an issue of statutory construction.

93 It is one thing to determine that a common law test requiring balancing between different, indeed incommensurable, considerations, should be conducted in a particular way. It is quite another thing to say that statutory words should be given a construction which they are not capable of bearing.

94 The words “substantially outweigh” in a statute cannot, in my opinion, be construed to have the meaning which the majority in Pfennig determined was the way in which the common law balancing exercise should be conducted. The “no rational explanation” test may result in a trial judge failing to give adequate consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh.

95 Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick (2000) 111 A Crim R 326 at [20] per Sheller JA; F Bennion “Distinguishing Judgment and Discretion” [2000] Public Law 368.) The “no rational explanation” test focuses on one only of the two matters to be balanced – by requiring a high test of probative value – thereby averting any balancing process. I am unable to construe s101(2) to that effect.

96 My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the “no rational explanation” test were satisfied.

97 There are conflicting authorities in this Court. Nevertheless, the preponderance of authority is in favour of applying the Pfennig test by way of explication of the statutory formulation. That line of authority was, however, established before the High Court in Papakosmas clarified the correct approach to determining the relationship between the Evidence Act 1995 and the pre-existing common law.

98 In any event, I am satisfied, to the high degree necessary to refuse to follow earlier reasoning of this Court, albeit not unanimous and in benches constituted by three judges, that this line of authority is incorrect.

99 Since writing the above I have read the additional observations of Hidden and Buddin JJ. I do not agree with their Honours. In my opinion, the statutory formulation should operate in accordance with its terms. There is no need for an assumption that all such evidence is “likely to be highly prejudicial”, nor for guidance that the test for admissibility is “one of very considerable stringency”.

Conclusion

100 The appeal should be dismissed.

101 SULLY J: I agree with the Chief Justice.

102 O’KEEFE J: I agree with the Chief Justice.

103 HIDDEN and BUDDIN JJ: We agree with the order proposed by the Chief Justice and with his Honour’s reasons.

104 We would add only this. Underlying the various formulations of the test for admission of similar fact or propensity evidence in the common law authorities is the recognition that evidence of that kind is likely to be highly prejudicial, and of the need to ensure that it is admitted only when the interests of justice require it. Its admission at common law is exceptional for reasons of policy, not of logic. These considerations should guide the balancing exercise required by the statutory provision, so that the test for admissibility under that provision remains one of very considerable stringency.

105 In practical terms, that will have the consequence that in many, if not most, cases the application of the common law and the statutory tests will produce the same result. The present case aptly demonstrates that point.

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Last Modified: 09/05/2007