R v TI - [2015] ACTSC 143

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TI

Details

AGLC: R v TI [2015] ACTSC 143
Case: [2015] ACTSC 143
Decision Date: 5 June 2015

CaseChat Overview and Summary

The defendant, TI, was charged with various sexual offences. The prosecution sought to admit evidence of "Incident 5", which was alleged to be strikingly dissimilar to the other incidents upon which the prosecution relied. TI opposed the admission of Incident 5, arguing that it had no probative value and would cause unfair prejudice. The case came before the court to determine the admissibility of this evidence under the coincidence evidence provisions of the Evidence Act. The court was required to weigh the probative value of the evidence against the potential for unfair prejudice to the defendant. The court found that the evidence of Incident 5 was relevant and had substantial probative value in assisting the jury to decide whether TI had the propensity to commit the offences for which he was being tried. The court was satisfied that the jury would not misuse the evidence, and that it was unlikely to cause unfair prejudice to the defendant. Accordingly, the court ruled that the evidence of Incident 5 was admissible.

The court emphasised the importance of the coincidence evidence provisions in enabling the jury to make informed decisions about the defendant's propensity to commit the offences. The court noted that the probative value of the evidence was not diminished by the fact that it was strikingly dissimilar to the other incidents. The court also considered the potential for unfair prejudice and was satisfied that the jury would not misuse the evidence. The court found that the evidence was relevant and had substantial probative value in assisting the jury to decide whether TI had the propensity to commit the offences for which he was being tried. The court ruled that the evidence of Incident 5 was admissible, and the jury was directed to consider it in light of the coincidence evidence provisions.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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