R v TI
[2015] ACTSC 143
•5 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TI |
Citation: | [2015] ACTSC 143 |
Hearing Date: | 27 May 2015 |
DecisionDate: | 5 June 2015 |
Before: | Penfold J |
Decision: | The evidence of Incident 5 as identified in the Crown’s application is admissible as coincidence evidence in TI’s trial on the indictment dated 16 April 2015. |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – EVIDENCE – Similar Facts – admissibility of “coincidence evidence” – similarities and differences in events and circumstances – evidence sought to be admitted said to be of events “strikingly dissimilar” to other events – substantial probative value – weighing of probative value and unfair prejudice – properly directed jury unlikely to misuse evidence – evidence admissible. |
Legislation Cited: | Evidence Act 2011 (ACT), ss 98, 101 Evidence Act 1995 (NSW), s 98 |
Cases Cited: | Miles v The Queen [2013] ACTCA 52 Oakley v Hyslop [2014] ACTSC 314 R v Gale; R v Duckworth [2012] NSWCCA 174 |
Parties: | The Queen (Crown) TI (Accused) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr R Livingston (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 246 of 2014 |
Introduction
TI has been charged in a single indictment dated 16 April 2015 with five counts of acts of indecency, arising out of four incidents involving three adults and one involving a child under the age of 16 years. The Crown gave a Notice of Intention to Adduce Coincidence Evidence (the coincidence notice) indicating an intention to lead evidence of all four incidents in the same trial, but also an intention to lead in that trial evidence of a fifth incident involving a charge to which TI has pleaded guilty.
During the hearing of the Crown’s application, defence counsel abandoned his opposition to the conduct of a single trial of all five counts on the current indictment. The defence does oppose the admission of evidence of the fifth incident in that trial.
The Crown had also given notice of an application relating to tendency evidence. That application was not pressed at the hearing, on the basis that if the evidence of the fifth incident is admitted on a coincidence basis, its use for tendency purposes would be canvassed at the trial.
The “coincidence rule”
The coincidence rule, which excludes “coincidence evidence” except as specified in the Evidence Act 2011 (ACT) is set out at section 98 of that Act:
98The coincidence rule
(1)Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
NoteOne of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict coincidence evidence presented by another party.
NoteOther provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
In Oakley v Hyslop [2014] ACTSC 314 at [34] to [36], I attempted a consolidated definition of “coincidence evidence” against which to test the evidence in dispute in that case:
34.The Dictionary to the Evidence Act defines “coincidence evidence” as:
evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection.
35.The Macquarie Dictionary Online ( viewed 18 November 2014) defines “coincidence” relevantly as “a striking occurrence of two or more events at one time apparently by mere chance”.
36.Thus, “coincidence evidence” can be described as evidence that two or more events happened, being evidence that a party seeks to adduce in order to prove that a person did a particular act or had a particular state of mind, that proof to rest on the basis that it is improbable, having regard to any similarities in the events or in the circumstances in which they happened, or both, that the two or more events happened by mere chance.
In this judgment I shall use “coincidence evidence” to refer to the evidence that the Crown seeks to have identified as admissible under s 98 of the Evidence Act, despite the fact that the admission of such evidence is permissible if at all on the basis that it is improbable that it reflects coincidence (see Miles v The Queen [2013] ACTCA 52 at [12]).
The process
For the purposes of the current application both counsel drew my attention to the case of R v Gale; R v Duckworth [2012] NSWCCA 174 (Gale), in which the New South Wales Court of Criminal Appeal considered an appeal against a judge’s decision to exclude evidence identified as coincidence evidence. Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, made general comments about the operation of s 98 of the Evidence Act 1995 (NSW) (which is for practical purposes identical to s 98 of the ACT Evidence Act) and at [30] and [31] identified the process by which the admissibility of the evidence asserted to be coincidence evidence should be considered, as follows:
30. The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:
o that there is evidence capable of establishing the occurrence of two or more events; and
o that there is evidence capable of establishing similarities in the two or more events; or
o that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
o that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
31. In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
o the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;
o the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";
o the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
o the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
o the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";
o in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)).
o the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
Submissions
The Crown says that the evidence of all five incidents is admissible on a trial of the five counts arising from the first four incidents to prove that it was the accused who engaged in the conduct charged in each of the counts.
For the purpose of Simpson J’s first step, I consider that the particular matter identified as in issue in the trial is the identity of the person involved in the four incidents giving rise to the charges on the indictment.
The natural way to describe the Crown’s aim in this case is to prove that a particular person (that is, the accused) did an act rather than that a person did a particular act, and as such what the Crown seeks to prove does not fall neatly within the s 98(1) reference to proving “that a person did a particular act or had a particular state of mind”. However, it is undoubtedly the case that the aim of the trial is to prove that the accused did the acts charged in the indictment, and I am satisfied that the description set out at [9] above satisfies the “first step” requirement.
In formulating the matter sought to be proved by the coincidence evidence I have disregarded the Crown’s rather peculiar claims that, for instance, the evidence is sought to be relied on to prove that the accused’s state of mind is to “have intense sexual urges to expose his penis to, or rub his penis against, non-consenting females”. It is possible that the Crown submissions reveal some confusion between the use of the evidence as coincidence evidence and its use as tendency evidence, although I note also that a description of a tendency that simply repeats the unique facts of one particular incident without seeking to generalise from it would seem to be quite unproductive.
However, in the circumstances of this case, the details of what the accused did, and (in all except Count 5) what he believed about whether the complainant consented to his actions, might be in issue if the accused can be linked to the incidents at all. His motives for any such actions, however, and whether those motives are found in intense sexual urges, a wish to embarrass the complainants, or something else again, are irrelevant. For instance, in relation to Count 1, if the Crown can prove that it was the accused who exposed his penis or rubbed it against a non-consenting female, his motivation is likely to be irrelevant. Proof of the Count 1 offence might permit reliance on that offence for tendency purposes in relation to other counts, but I do not need to pursue that possibility at this stage.
The real importance of the coincidence evidence in this case is not that it reveals what might have been in the mind of whoever was involved in the various incidents but that it provides a connection between the incidents that have not been directly linked to the accused with the incidents that can be directly linked to him.
The Crown says first that, having regard to the similarities in the events and the circumstances in which Incidents 1 to 4 happened, it is improbable that the several events happened coincidentally and, in particular, that they involved two or more different offenders.
Once it is accepted that Incidents 1 to 4 involved the same offender, the Crown says, that offender can also be shown to be the same offender as in Incident 5, because, having regard to the similarities between Incidents 1 to 4 and Incident 5, it is improbable that the first four incidents and Incident 5 happened coincidentally rather than involving the same offender.
However, the defence submits that evidence of Incident 5 should be excluded from TI’s trial on the 16 April 2015 indictment.
Two grounds for the exclusion of that evidence are raised by defence counsel:
(a)First, that the similarities between Incident 5 and the other incidents are not sufficient to make it improbable that the events happened coincidentally; indeed, defence counsel says, Incident 5 and the other incidents are “strikingly dissimilar”.
(b)Secondly, that if the similarities between Incident 5 and the other incidents are found to be sufficient for a finding that it is improbable that the various incidents happened coincidentally, then the evidence should be excluded under s 101 of the Evidence Act, which is relevantly as follows:
(2)... coincidence evidence about a defendant ... that is presented 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.
Evidence
For the purposes of Simpson J’s second step, the Crown identified the evidence of the five different incidents.
The first four incidents are described in the Crown’s case statement as follows:
Incident 1 [Count 1]
On 27 April 2014 at about 4.50pm the accused, while riding a small, black push bike, approached C1 who was walking home from shopping at Westfield Belconnen along Emu Bank. He said,
"Do you have the time?"
C1 said, "It's five pm."
The accused thanked C1 and rode off in the direction of Belconnen. C1 continued on her path near Lake Ginninderra, across Aikman Drive and towards University of Canberra. When she was on the university campus, she noticed the accused riding his bike. The accused rode past and smiled at her, and C1 returned the smile.
C1 continued walking and went into the UC communal laundry room to do some laundry. The accused entered the laundry, approached C1, took his penis out of his pants and began masturbating himself. The accused attempted to rub up against C1 , but she pushed him away. The accused approached C1 again; she pushed him away and said,
"No, please, go away."
C1 pushed the accused back a third time and was able to run out of the laundry.
C1 saw another resident, S and asked him for help. The accused walked out of the laundry and S said,
"Mate, what are you doing?"
The accused said, "I don't know her."
The accused then ran off toward Lake Ginninderra.
Incident 2 [Counts 2 and 3]
About 4:57pm that same day (27 April 2014), the accused, riding the same small, black push bike on Ginninderra Drive; not far from the footbridge near Emu Bank, came across C2. C2 was out on a run. The accused grabbed her by the buttock, and tried to pull her into him. C2 was able to shrug the accused off who then rode off in the direction of the Lake Ginninderra College (count [2]).
A short time later the accused returned and took hold of C2’s shoulder in an attempt to turn her around, and then grabbed her buttocks again. At this time the accused stood in front of C2 ; pulled his pants down just below his genitals and began to masturbate. He has said to C2,
'Can you help me?'
C2 ran back across the footbridge and sought refuge in a nearby restaurant (count [3]).
Incident 3 [Count 4]
About 5:20pm on Monday 28 April 2014, C3, (aged 13 years) took her dog for a walk down Letters Street, Evatt, toward a cul-de-sac leading into a grassed area. C3 continued down to the cul-de-sac at Starling Street where she saw the accused with two other males, all on pushbikes.
C3 continued to walk up toward Sproule Street, which eventually led back to Letters Street, and then Cutlack Street, this path soon ended to where she had started. C3 proceeded to walk a further two laps of the same route as this was part of her routine. On the third lap she saw that the other two males had left, and the accused riding in the area alone.
C3 continued to walk with her dog when the accused rode past her and into the lane way off Starling Street. The accused then walked toward her from the lane way.
The accused walked to and stood about a meter away from C3, where he proceeded to pull his pants down, exposing his penis and testicles. C3 feared for her safety and began to scream 'help' and 'stop'. The accused attempted to grab C3 by the arm and said,
'I just want you to touch and feel and see my dick'.
C3 ran away from the accused to a nearby house. The accused ran into some nearby bushes where he continued to watch C3, however ran off a few moments after. Once C3 saw the accused leave the area she continued back to her house where she told her step father, P what had happened.
P went to the area to see if he could locate the accused. He spoke to a young man on a pushbike, J, who identified the accused having been in the area earlier, being a person he recognised from school.
Incident 4 [Count 5]
About 6:00pm on Monday 28 April 2014, C4 was walking along Rubicon Street, Kaleen, on her way to a martial arts class, when she noticed the accused riding a small, black pushbike, with a low seat. The accused was riding in C4’s direction and passed her shortly after and continued riding. A few minutes later as C4 neared Georgina Crescent, Kaleen, the accused rode up and touched her buttocks from behind. The accused then rode off at speed.
C4 sent a friend a text message stating what occurred. She received a reply from her friend with a Police warning. Shortly after arriving home from her martial arts class, C4 contacted Police.
The fifth incident is described in the coincidence notice as follows:
Incident 5 (plea of guilty entered)
(a)Substance of the evidence:
Shortly before midnight on Saturday, 26 April 2014, C5 was in her home, she walked into the laundry and saw the accused – she described him as about 20 years of age, having olive/tanned skin, about six foot in height, medium build, with brown eyes and full bottom lip. He was wearing a dark grey hooded jumper and the hood was covering his head, he was also wearing dark baggy full length track pants. The offender walked up to C5 and used his left hand to touch her crotch a number of times. He then left the house using the laundry door.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
At about midnight on 26 April 2014 at ... Heatherington Circuit, McKellar.
Age of complainants
I note at this point that the complainants in Incidents 1, 2 and 4 were all university students. Although not directly established by the evidence available to me, it seems to be accepted between the parties that all of them could be described as “young women”, while the complainant in Incident 3 was 13 years old.
The age of the complainant in Incident 5 is also not specified in the evidence I have seen, but she has a 20-year-old son, so she is presumably no younger than her mid-thirties and might be quite a lot older than that.
Similarities: Incidents 1 to 4
Simpson J’s third step requires the Crown to identify the similarities between the various incidents that are relied on. The Crown provided what was described as a “précis of incident evidence identifying similarities”, which in fact simply listed various aspects of each of the five incidents without specifically identifying the similarities relied on. However, in submissions, the similarities relied on were identified by the Crown, as follows:
(a)the timing and location of the incidents;
(b)the modus operandi;
(c)the description of the offender.
The timing and location of Incidents 1 to 4
The Crown tendered a series of maps, one of which showed that the locations of all the incidents fell within an area of roughly 3 km x 2.75 km, and also further similarities as follows:
(a)Incidents 1 and 2 took place on 27 April 2014 between about 4:50 pm and 6.00 pm in locations that were no more than about 500 m apart (University of Canberra Residences and Lake Ginninderra).
(b)Incidents 3 and 4 took place on 28 April 2014, between about 5:20 pm and 6.00 pm, in two Canberra suburbs (Evatt and Kaleen) separated by only one other suburb and in locations roughly 2.75 km apart.
The modus operandi in Incidents 1 to 4
The incidents all involved an offender who:
(a)identified a female who was alone;
(b)committed the offence in close proximity to a bike path;
(c)was seen riding a small pushbike or BMX bike before the incident; and
(d)(in incidents 1, 2 and 4) was seen using the bike to flee after the incident.
The description of the offender in Incidents 1 to 4
Each offender was described by the complainant concerned as:
(a)about 6 feet or 180 cm tall;
(b)having tanned or olive skin;
(c)having brown eyes and brown hair;
(d)wearing dark clothing including a hood pulled up over his head;
(e)having writing of some sort, or the word “Nike”, on his hooded top; and
(f)riding a small dark or black bike.
Similarities: Incident 5 and Incidents 1 to 4
Certainly there are considerable similarities between Incident 5 and the other four by reference to the matters that have been focused on by the Crown.
Timing and location of Incident 5
The fifth incident:
(a)took place just before midnight on the day before Incidents 1 and 2; and
(b)took place in the Canberra suburb of McKellar, which is adjacent to the suburb of Evatt where Incident 3 took place and within the area mentioned at [24] above.
Modus operandi in Incident 5
The only common aspect of the modus operandi of the five incidents as identified by the Crown is that it seems from the complainant’s statement that there is a bike path near her house.
The description of the offender in Incident 5
The complainant described the offender as:
(a)about 6 foot in height;
(b)having olive/tanned skin, possibly with “dark” hands;
(c)with big brown eyes; and
(d)wearing dark baggy full-length track pants and a dark grey hooded jumper with the hood covering his head.
Dissimilarities
Defence counsel conceded that under the relevant Evidence Act provisions, there was no requirement for the similarities in events or circumstances to be “striking”, but submitted that it would be significant if the events or circumstances could be identified as “strikingly dissimilar”.
He then submitted that in fact Incident 5 was “strikingly dissimilar” from the other four incidents in the following ways:
(a)It involved an entry into the complainant’s home by removing a fly screen and unlocking the laundry door (itself constituting a separate and arguably more serious offence), rather than being committed in a public or semi-public place.
(b)It involved a different time of day (around midnight) rather than around 5.00-6.00 pm.
(c)The complainant was a mature woman rather than a young woman or girl.
(d)The incident did not involve the offender exposing himself to the complainant but instead touching her genitals through her clothes.
Assessment of similarities
The Crown’s position
The problem for the Crown is that, for the evidence of Incident 5 to be admissible under s 98, the similarities between Incident 5 and the other incidents need to be such as to make it improbable that the several events happened coincidentally. In this case, as already noted, the relevant aspect of the various incidents is the identity of the offender – to identify the evidence as covered by s 98 requires a claim that it is improbable that the several incidents involved two or more different offenders.
The incidents happened in a relatively short period of time (roughly 56 hours) and in a relatively small part of Canberra, covering four residential suburbs and two different locations in the nearby town centre and a total area of no more than about nine square kilometres, but I do not see that the commission of six offences in a period of 56 hours in the relevant geographical area by two or more different offenders is, as such, at all improbable.
Furthermore, given the design of the various suburbs involved, the commission of six offences all in the vicinity of bike paths by two or more different offenders is also not at all improbable (it might be more improbable to find six offences committed in the relevant suburbs over a 56-hour period that were not in the vicinity of bike paths).
The descriptions of the offender in the various cases is far more significant, although I note that the wearing of track pants and hooded tops, with the hood pulled up over the offender’s head, like the proximity of a bike path, may be more common than not in relation to offences committed in the suburbs of Canberra against strangers. Apart from this, however, the description in each case of the offender’s skintone, height and eye colour significantly narrows down the category of potential offenders; whether it narrows that category down sufficiently for a conclusion that it is improbable that the commission of the six offences involved two or more offenders is a more difficult question, and requires further consideration of what are said to be the striking dissimilarities between incident 5 and the other incidents.
Defence counsel’s submissions: Incident 5
It is next necessary to examine the dissimilarities identified by defence counsel.
Modus operandi and time of day
As to the modus operandi and the time of day, the fact that the fifth incident may have involved an unauthorised and criminal entry into the complainant’s house, or that such unauthorised entry was undertaken at midnight rather than around 6.00 pm, does not seem to distinguish that incident in any important way. Although most of the other incidents took place out in the open, Incident 1 also took place indoors (in fact, also in a laundry, although I place no reliance on that particular similarity). The difference in timing does not seem to point to the incidents involving different offenders so much as to the fact that by around midnight on an April evening there are likely to be few women out alone in public areas and therefore able to be easily approached as happened in Incidents 1 to 4.
Age of complainant
The fact that Incident 5 involved a mature woman rather than a young woman or girl does not seem to distinguish that incident from the first four in any significant way. The implication that the offender in Incident 5 had a preference for assaulting mature women, in contrast to the preference for young women of the offenders involved in Incidents 1 to 4, cannot in my view be made out, given that the circumstances of Incident 5 do not suggest that the offender knew whom he might find in the house. In fact, the complainant’s police statement indicated that she had a daughter who still lived in the family home, although she was not at home on the evening concerned. There is no reason to assume that, if the offender in Incident 5 was looking for a particular kind of woman to assault, he was looking for a mature woman as distinct from a young woman.
Nature of acts of indecency
Finally, defence counsel sought to distinguish the nature of the offence by noting that in Incident 5, the offender had made no attempt to expose his own genitals, but had instead touched the complainant’s genital area through her clothes. This distinction is also accurate, but in my view also unproductive.
Defence counsel noted Simpson J’s comment that a number of the asserted similarities between the Queensland robbery to which Messrs Gale and Duckworth had pleaded guilty and the New South Wales theft with which they had been charged were aspects of the New South Wales theft that the Crown was hoping to establish by reference to aspects of the Queensland robbery (for instance, the involvement of Mr Gale). Her Honour said at [37]:
Some of the asserted similarities expose a serious logical fallacy in the argument. The presence of Gale at the Nimbin Hotel, the (criminal) involvement of an "insider" at the Nimbin Hotel, the involvement of ex-police officers (ie Duckworth and Gale) in each event, and involvement of multiple offenders at the Nimbin Hotel event are all, far from being established similarities (or similarities capable of being established), the very facts that the DPP seeks to prove by the coincidence evidence. This involves, in my opinion, a misunderstanding of the note to s 98. The note permits an "event" to be the subject of coincidence evidence, even where its occurrence is a fact in issue in the proceeding. The Crown cannot use the (asserted) presence of Gale at both events to prove that Gale was present at the Nimbin event. The argument is a classic instance of "begging the question" (properly so called). It assumes the very facts that the DPP seeks to prove. In my opinion, similarities for the purposes of s 98 must be capable of proof by means other than the "facts" sought to be established.
I do not understand defence counsel to have submitted that any of the asserted similarities between the various incidents in this case are question-begging in the sense (with respect, correctly) described by her Honour in Gale. I do note, though, that perhaps in contrast to that case the asserted similarities in this case may depend to a greater extent on how each relevant item of evidence is categorised, and particularly on the level of generality which each asserted similarity is described.
It is clear from Simpson J’s analysis that similarities for the purposes of the coincidence evidence provisions need not be described in the most specific ways, and need not be exact. Section 98 requires events to have similarities – it does not require them to be identical, or even to be identical in particular respects. For instance, in Gale, one pair of facts about the two events was that:
(a)in the Queensland robbery, Duckworth was one of the people who admitted to entering the relevant premises to commit the robbery; and
(b)in the New South Wales theft, Duckworth was the licensee of the relevant premises who claimed to have been the victim of a robbery by an unknown person.
Simpson J identified the asserted similarity as “the presence of Duckworth at both events”.
The analysis of the evidence in this case involves a similar degree of generalising the specific facts of the various events.
As emphasised by defence counsel, three of the first four incidents involved the offender exposing his penis. However, Incident 2 began with the offender grabbing the complainant by her buttocks and then riding away after being shaken off, and only exposing his penis after he returned and again grabbed the complainant by her buttocks. Incident 4 also involved a touching of the complainant’s buttocks, but one that was not followed by any exposure.
Incident 5 differs from the others in that it involved the offender touching the complainant but not exposing himself. However, it is similar to the others in that the touching was through the victim’s clothing and there was no attempt to remove the victim’s clothing or to put his hand inside the victim’s clothing. The touching in Incident 5 could have been a prelude to an intended exposure, as it seemed to have been in Incident 2 (and as it might have been in Incident 4). Incident 1, which involved an attempt to rub up against the complainant, is also consistent with the other incidents to the extent that it involved no attempt at skin-to-skin contact or anything more intrusive.
Furthermore, the victim of Incident 5 said in her 000 call to police that she thought she had yelled when the intruder touched her crotch area – this may have been enough to deter him from staying in her house long enough to expose his penis.
Each of the five incidents can be described as involving one or both of apparently sexual touching through clothing, and exposure of the offender’s penis with an attempt to engage the victim in his sexual activity (in Incidents 2 and 4 that attempt involved an oral invitation rather than physical contact). To generalise a little further, all incidents involved a non-violent act of indecency without any attempt to remove the victim’s clothes or otherwise to physically coerce the victim, except to the extent necessary to gain her attention at the beginning of the incident.
Conclusion
In reliance on this analysis, and having regard to the other similarities identified by the Crown between the five incidents, particularly the similarity of the descriptions of the offender in each incident, I reject the defence submission that Incident 5 is “strikingly dissimilar” to the first four incidents and therefore could not be admissible as coincidence evidence in relation to the charges on the indictment.
I am satisfied that the dissimilarities identified by defence counsel do not exclude the conclusion that the similarities between Incident 5 and the other four incidents are sufficient for a finding that it is improbable that Incident 5 and the other four incidents happened coincidentally and involved at least two different offenders, and I so conclude.
Notice
Simpson J’s fourth step requires consideration of the “reasonable notice” requirement of the Evidence Act. The defence accepts that appropriate notice was given.
Probative value of evidence
The fifth step identified by Simpson J is to evaluate whether the evidence would, alone or taken with other evidence, have significant probative value.
Capacity to identify offender in Incidents 1 to 4
Incidents 1 to 4 have a number of distinctive similarities, and, as already mentioned, by the end of the oral hearing of this application there was no real challenge to the assertion that a jury, acting reasonably, could conclude that it was improbable that those events happened coincidentally rather than all involving the same offender. For only two of those incidents, however, is there evidence linking the accused (as distinct from any other young man who fitted his description) to the events. The complainant in Incident 2 identified the accused in a photo board process, saying that she wasn’t “a hundred per cent sure”. A young man who had been in a car near where the complainant in Incident 3 was approached had seen a person who fitted the description given by the complainant. He had known that person when they were at school together, and was able to name him. However, he had not seen that person anywhere near the complainant.
The offender in Incident 5, the accused in this matter, was identified through a photo board procedure and by DNA left at the scene of the incident. If Incident 5 can be linked to Incidents 1 to 4, the evidence that the accused was the offender in relation to Incidents 1 to 4 would be significantly enhanced.
That is, evidence of the details of Incident 5, and of the identification of the accused as the offender in that incident, would have significant probative value to the extent that it tended to establish that the accused was also the offender in one or more of Incidents 1 to 4.
I note that in the particular circumstances of the case, the defence does not challenge the capacity of the evidence of Incident 5 to establish that the offender in that incident was the accused TI. The probative value of that evidence in relation to Incidents 1 to 4 depends on the conclusions that are reached about the similarities between the five incidents.
Once it is accepted that the evidence of Incidents 1 to 5, and the similarities in that evidence, are such as would permit a jury, acting reasonably, to reach the conclusion or draw the inference that the same offender was responsible for each of the incidents, then that evidence, coupled with the evidence of the identification of the accused as the offender in Incident 5, would have significant probative value in establishing that the accused was the offender in Incidents 1 to 4.
Need to consider alternative hypothesis
I note also the requirement for a judge dealing with a coincidence application to consider any alternative hypothesis consistent with innocence that would be available to explain the coincidence evidence. Since the accused’s case is that he was not the offender in Incidents 1 to 4, he is not in a position to advance any alternative hypothesis except, by implication, the hypothesis that despite the various similarities among the various incidents, the accused, despite having committed the offence in Incident 5, was not involved in any of the other incidents. This “alternative hypothesis” is no more than a reminder of the threshold test for the admission of coincidence evidence, in effect, that the similarities between the various incidents are such as to be unlikely to result from mere chance, which has been dealt with at [23] to [51] above .
Prejudicial effect of evidence
As Simpson J pointed out in Gale at [34(vi)]:
the final, and central, question is whether the probative value of the evidence "substantially outweighs" its obvious prejudicial effect (s 101(2)). It is to be understood that the "prejudicial effect" of a particular item of evidence is the risk that a jury might, in some way, misuse it: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [92]; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [72]- [73]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116]; R v Ford [2009] NSWCCA 306 at [56]; [2009] NSWCCA 306; 201 A Crim R 451.
Defence counsel had submitted in writing that unfair prejudice would be caused to the accused by the trial of multiple counts (Counts 1 to 5) on a single indictment where, as in this case, the accused denies that he is the offender in any of the incidents. At the hearing, counsel maintained only that the admission of evidence of Incident 5 in a trial on that single indictment would cause unfair prejudice to the accused, submitting that the jury was likely to misuse that evidence by giving undue weight to the identification of the accused that it provided.
Counsel asserted that there was no jury direction that could cure or prevent the unfairness that concerned him.
In further discussion, however, it seemed to emerge that defence counsel’s real objection to the admission of evidence of Incident 5 remained his view that Incident 5 was not sufficiently similar to the other incidents to be admitted into evidence at all. (t80)
It is useful to consider the weighting of probative and prejudicial value conducted by Simpson J in Gale. First, her Honour had concluded that the only real similarities that could be extracted from the evidence relating to the Queensland robbery and the NSW theft were:
(a)the presence of Duckworth at both events;
(b)that both events involved licensed premises;
(c)that both events occurred when the premises were closed.
Even without a detailed description of the factual issues in that case, it will be apparent that these similarities, while found to have significant probative value in conjunction with other evidence, did not have really high probative value of themselves as coincidence evidence. Apart from anything else, I assume that, as in the ACT, many offences in New South Wales occur in licensed premises, and many robberies and thefts in such premises occur when the premises are closed, at least to the public; certainly in my experience, robberies in licensed premises often occur shortly after closing time but while staff may still be present and before the day’s takings have been secured. That is, the only relatively rare common factor between the two incidents was the presence of the accused Duckworth in both incidents.
The admission of the evidence in Gale would have allowed the jury to be informed that a person who was on trial for a carefully planned and lucrative theft from a business of which he was the manager had previously conducted a carefully planned and even more lucrative robbery, in company and with a weapon, while acting in concert with the manager of the business that was robbed. The information about the robbery had a clear capacity substantially to prejudice a jury against the accused, by alerting jurors not only to the fact that he had previously engaged in criminal activity (a fact which is wherever possible kept from juries) but to the specific fact that he had engaged in a particularly serious kind of criminal activity. The unfair prejudice that would have been created by the availability of that evidence could easily have outweighed the relatively minor probative value of the evidence of similarities as already described.
It is easy to understand the imbalance found by Simpson J in Gale between the probative and prejudicial values of the evidence about the accused’s involvement in the robbery; it is not nearly as easy in the current case to identify the same kind of imbalance between the relatively high probative value (having regard to all the other evidence) of Incident 5 in relation to the identity of the offender in Incidents 1 to 4, and what I regard as the relatively minor scope for there to be any unfair prejudice flowing from that evidence if admitted.
I do not consider that a properly directed jury would, for instance, reason that a person who has committed one relatively low level sexual offence can on that basis be found beyond reasonable doubt to have committed a series of other sexual offences.
Defence counsel emphasised the fact that Incident 5 involved not just that low level sexual offence but also a quite different and arguably more serious offence, namely the burglary apparently committed as a prelude to the act of indecency, which carries a higher maximum penalty even than the act of indecency on a child under 16 charged at Count 4. However, even if it were necessary (as to which I am unconvinced) for the jury to be made aware that the offender’s entry into the complainant’s laundry constituted a separate and more serious offence, I do not see that such information would cause a properly-directed jury to reason that the offender in Incident 5 was therefore likely to have committed the particular sexual offences arising out of Incidents 1 to 4.
Furthermore, the offence committed in Incident 5 was unpleasant and no doubt distressing for the complainant, but none of the evidence before me suggests that it was seriously traumatic to her at the time (although her police statement indicates that she was, unsurprisingly, left feeling insecure in her own home). It seems unlikely that any evidence of this offence that would be put before the jury would generate negative feelings on the part of the jury members towards the accused that were sufficiently strong to distract them from their task.
I am satisfied that in this case the probative value of the evidence of Incident 5 substantially outweighs any prejudicial effect it may have in relation to the accused.
Conclusion
Accordingly, evidence of Incident 5 is admissible as coincidence evidence in TI’s trial on the five counts in the indictment dated 16 April 2015.
I suggest, however, that careful thought should be given by both counsel to how much of that evidence needs to go before the jury, apart from the specific facts and circumstances of the act of indecency and the identification of the accused on trial as the offender in Incident 5.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 5 June 2015 |
0
3
2