Re Murdoch (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

Revised

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0318
S CR 2019 005

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
SCOTT ALAN MURDOCH	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2019, 16 July 2019 and 29 – 30 July 2019
DATE OF JUDGMENT:	31 July 2019
CASE MAY BE CITED AS:	Re Murdoch (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 882

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CRIMINAL LAW – Joinder of charges on basis of coincidence evidence – Whether coincidence evidence has ‘significant probative value’ – Whether probative value substantially outweighs prejudicial effect – IMM v the Queen (2016) 257 CLR 300 applied – Evidence Act 2008 ss 98 and 101.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas QC	Office of Public Prosecutions
For the Accused	Mr S Bayles	Victoria Legal Aid

HER HONOUR:
Introduction and procedural background

The Crown have filed a further amended summary of prosecution opening (‘SPO’) dated 18 March 2019 relating to a joint indictment that charges the accused in respect of two separate criminal events. ‘Event 1’ (‘the Prohaska incident’) involves a home intrusion and infliction of life threatening injuries on Ilona Prohaska on 21 May 2013 (‘the Prohaska charges’) and ‘Event 2’ (‘the Blackwood incident’) involves a home intrusion and fatal attack on Kylie Blackwood on 1 August 2013 (‘the Blackwood charges’).

The accused was first charged with the Blackwood charges on 8 April 2016 and remanded in custody after being charged. He has remained in custody since then. He was committed for trial on the Blackwood charges on 7 December 2017 and appeared in this Court for a post committal direction hearing on 11 December 2017.

Subsequently it emerged that the accused was to be interviewed in respect of Event 1, the Prohaska incident, and a record of interview was conducted by police at the prison where the accused was remanded, on 13 June 2018. The Prohaska charges were laid at the conclusion of the interview and the Crown indicated it would seek joinder of the Prohaska charges with the Blackwood charges. Therefore, the trial of the Blackwood charges was delayed when the prospect of joinder was foreshadowed. A committal on the Prohaska charges proceeded in January 2019 and the accused was committed to this Court for trial on those charges on 10 January 2019.

The current joint indictment[1] was filed in this Court on 11 February 2019.
[1]Indictment C1912388 signed on 16 January 2019.

Joinder of charges relating to each victim is sought by the Crown on the basis of the Crown’s reliance on coincidence evidence in respect of each case. The joint indictment was filed[2] over a previous indictment[3] which only contained the Blackwood charges.
[2]Joint indictment signed on 16 January 2019.
[3]Indictment G10956868.

The charges on the joint indictment are as follows:

(a) Charge 1 – Aggravated burglary[4] on Ilona Prohaska’s residential premises at [redacted] Georgette Crescent, Endeavour Hills;[5]
[4]Person present and armed with a knife.
[5]Crimes Act 1958 (Vic)(‘the Crimes Act’) s 77(1).

(b) Charge 2 – Threat to kill Ilona Prohaska;[6]
[6]Crimes Act s 20.

(c) Charge 3 – Theft of a Commonwealth Bank card belonging to Ilona Prohaska;[7]
[7]Crimes Act s 74(1)

(d) Charge 4 – Attempted murder of Ilona Prohaska;[8]
[8]Crimes Act s 321M, Common Law.

(e) Charge 5 – Intentionally cause serious injury to Ilona Prohaska;[9]
[9]Common Law.

(f) Charge 6 – Dishonestly obtaining property by deception ($490 cash) from Bendigo Bank Ltd, Endeavour Hills by the use of a Commonwealth Bank debit card belonging to Ilona Prohaska;[10]
[10]Crimes Act s 81(1).

(g) Charge 7 – Aggravated burglary[11] on Kylie Blackwood’s residential premises at [redacted] McCaffrey Rise, Pakenham;[12]

(h) Charge 8 – Murder of Kylie Louise Blackwood;[13] and

(i) Charge 9 – Theft of money and a Suncorp credit card belonging to Kylie Blackwood.[14]

[11]Person present

[12]Crimes Act s 77(1).

[13]Common Law

[14]Crimes Act s 74(1).

The Summary of Prosecution Opening for the joint indictment
Charges concerning Ilona Prohaska

Mrs Ilona Prohaska, is 79 years old and at the time of the criminal attack upon her was residing alone at Georgette Crescent, Endeavour Hills. It is alleged that on the afternoon of 21 May 2013 an intruder armed with a knife forced his way into Mrs Prohaska’s home, stole cash and a Commonwealth Bank Bankcard from her and then attempted to murder her by stabbing her in the neck leaving her lying on the floor of the basement of her house with life threatening injuries. At that time she was 73 years of age.

Lead up to Event 1 concerning Mrs Prohaska

The Crown seeks to lead evidence that on 21 May 2013 the accused drove a white Holden Astra car to a BP Service Station on Princes Highway, Dandenong where he made some purchases with his own NAB debit card. He then drove to Wonthaggi, and made a Sony home theatre purchase at 10.03am.[15] At 10.26am he is alleged to have made a small purchase from the Wonthaggi McDonalds takeaway food premises before driving towards Dandenong, and stopping off at a BP Service Station in Grantville, where he bought goods valued at $15.99. He then is alleged to have bought an item at a bakery in Tooradin.
[15]Valued at $348.

The Crown case is that the accused next drove to the home of his former partner, Nicole T, in Tooradin where he spoke to her briefly out the front of the house. Ms T noticed some boxes relating to a Sony home stereo system in the car that the accused had arrived in. The accused left shortly afterwards and that was the last Ms T saw of him that day.

The accused was under the supervision of the Office of Corrections on 31 May 2013 and attended their office at 48 Walker Street, Dandenong at 2.33pm but was told to leave and return later since his appointment was not until 5.30pm. He left the office shortly afterwards.

Meanwhile, on the same day Mrs Prohaska attended for a medical procedure between 1.45pm and 2.19pm and then went home at about 3.00pm.

At around 2.30pm, a gardener, Mr Brook, employed by the City of Casey, and his co–worker, Daniel Deery, were conducting works in a park opposite [redacted] Georgette Crescent, Endeavour Hills, a few doors down from Mrs Prohaska’s house. Mr Brook observed a male person walking back and forth through the parkland towards Georgette Crescent carrying an item that looked like a small black box whilst also apparently looking at the item in his hands. The person was described by Mr Brook as wearing a high visibility yellow jacket, baseball cap and glasses. Mr Brook thought the person could be a meter reader, but investigators have confirmed that no meter readings were taken in that area at that time.

Factual narrative of the offences against Mrs Prohaska

When Mrs Prohaska went home at 3.00pm she went to lie down in her bedroom after parking her car in the garage and shortly afterwards noticed through her bedroom window a man coming to her front door. The man then rang the doorbell. She was awaiting an RACV insurance assessor and assumed this visit was connected to the assessment. The visitor was wearing a high visibility yellow reflective jacket, baseball cap and glasses. When she answered the door the man confronted her with a large knife in his left hand and forced his way into the house by kicking the door open, causing the door to strike her head. This caused her to fall to the floor. The offender then removed the medical alarm from her neck and threw it into a nearby bedroom. He then knelt down and placed the knife under her chin and warned her not to scream, but said if she did what he told her he would not cut her throat. She was allowed back to her feet and the offender demanded cash. She walked into the bedroom to obtain her purse and the offender motioned for her to remove money from the purse and hand it to him. She gave the offender a $20 note and a $50 note. The offender pointed to a Commonwealth Bank bankcard in her purse and asked her to remove it and provide the PIN. Mrs Prohaska wrote down the PIN on a piece of paper and handed it to the offender. The offender told her that if she had lied about the PIN number he would return in two days and kill her.

The offender then ordered Mrs Prohaska to go downstairs to the basement area of her house and when she reached the bottom of the stairs he suddenly put the knife to the left side of Mrs Prohaska’s neck. He took a hammer from within his jacket and struck the end of the knife, forcing it into Mrs Prohaska’s neck. He then removed the knife and placed it to the opposite side of Mrs Prohaska’s neck and again struck the knife into her neck. She lost consciousness and fell to the floor. The offender left with the cash, a bank card and a handwritten PIN number.

Mrs Prohaska regained consciousness and crawled back upstairs and located her medical alarm which was activated at 3.30pm. She reported to the call taker that she had been stabbed and an ambulance was sent to the scene along with police.

Meanwhile at around 3.15pm Mr Brook had taken a break from his work and had heard a loud scream coming from somewhere nearby.

When police arrived at the crime scene they found the front door locked, but upon gaining entry, found Mrs Prohaska lying in the front room of her house on the floor. She was conveyed to Dandenong Hospital with life threatening injuries and remained there between 21 May 2013 and 12 June 2013.

Mrs Prohaska was found to have wounds to the left and right side of her neck and a further laceration above her left eyebrow. The wound to the left side of her neck was deep and she had lost a large amount of blood. She underwent emergency surgery, and if not for that surgery, would have suffered catastrophic blood loss. A report by Dr Jason Shriver of the Victorian Institute of Forensic Medicine noted that there was evidence of blunt and sharp trauma to the head and neck, but that in particular with regard to the penetrating injuries, possible objects that could have caused the incised injuries included pointed and sharp edged implements, such as a knife or a dagger.

ATM attendance of offender

The Crown allege that the offender, after attacking Mrs Prohaska, attended the Bendigo Bank ATM at 282 Lonsdale Street, Dandenong. CCTV footage was obtained showing a male in a high visibility yellow jacket and baseball cap arriving at the ATM at 4.06pm. The offender accessed Mrs Prohaska’s bank account using her stolen Commonwealth Bank card and the PIN number she had provided and initially entered the correct PIN number and requested a withdrawal of $2,000, which was denied due to exceeding the withdrawal limit. Further withdrawal attempts were made and checks of the account balance followed by a successful withdrawal of $490 at 4.09pm and a further withdrawal of $200 at 4.10pm.

Further movements of the accused on the afternoon of 21 May 2013

The Crown allege that the accused was the offender who committed the Prohaska offences and then withdrew money from the Bendigo Bank ATM in Dandenong. It is alleged that after he left the ATM he walked back to the Office of Corrections, where his case manager, Ms Ryan, was notified of his arrival. His appointment took place at 4.31pm and he then left the Office of Corrections and went to an unknown location.

On 15 June 2013 Mrs Prohaska compiled a ‘FACE’ composite image of the male based on her recollections. She described an eastern European or middle eastern male, aged between 30 and 40 with tanned skin wearing a yellow high visibility hooded jacket, dark baseball cap and safety glasses.

Police estimates of travel time by car from Dandenong Corrections Office to the residence of Mrs Prohaska is between 15 and 17 minutes. Travel time by car from Mrs Prohaska’s residence to the Dandenong branch of the Bendigo Bank is between 11 and 15 minutes and travel time from the Bendigo Bank ATM to the Dandenong Office of Corrections on foot via Lonsdale Street is 7 minutes.

The police allege that at the time of the attack on Mrs Prohaska, the accused was using a Telstra mobile phone number (last 3 digits 386) but that five days after the offence, on 26 May 2013, he ceased using that mobile service and commenced using an Optus mobile number (last 3 digits 189).

DNA results Prohaska charges

In April 2018 police provided the white knitted jumper that Mrs Prohaska was wearing at the time that she was attacked to the Forensic Services Department for examination. Forensic Services Officer, Kate Bradley, reported that DNA reference samples were obtained from the victim and the accused and sampling was done on the white knitted jumper.

A three person mixed DNA profile was obtained from the white knitted jumper (sample 14–1), being a DNA profile derived from biological material from more than one person. The result from 14-1 was one hundred billion times more likely if it originated from the DNA of the accused, Mrs Prohaska and one unknown person randomly selected from the Australian Caucasian population, than if it originated from Mrs Prohaska and two unknown persons randomly selected from the Australian Caucasian population.

Police interview with the accused relevant to the Prohaska charges

The accused was interviewed in relation to the Prohaska charges on 13 June 2018 whilst he was in custody. The accused gave an account of his movements on the day of the alleged events saying that at that time he was living alone in Pakenham, but was still in a relationship with Ms T, who was living in Tooradin, and that on the morning of 21 May 2013 he left his home in Pakenham and drove to Wonthaggi to return some stereo speakers at the Big W store at around 10.00am and that he then went to McDonalds in Wonthaggi before driving to Tooradin to see Ms T, arriving at her place around midday. He said that he remained at her address for the rest of the day and stayed the night there and did not leave her address until the following day.

He denied any involvement in the incident, but said that he was notified of a television news broadcast about the incident, which he took no notice at the time. However, a few weeks later he ran into Johnny Prohaska, the son of Mrs Prohaska who was known to him and who told him what had happened to his mother. The accused realised that this must have been related to the television broadcast.

He said he knew the address of Mrs Prohaska as he had been there many times when he was younger, and associated with Johnny Prohaska. This was around the year 2000. He said that he knew Mrs Prohaska very well and that she would know and recognise him.

Visual identification evidence: Mrs Prohaska

On 13 June 2018 Mrs Prohaska was shown an array of photographs depicting 12 men including the accused, but was unable to identify any person from the photographs.

On 6 December 2018 Mrs Prohaska was shown a single photograph of the accused, but was unable to identify the accused from the photograph and stated that she had never met or seen that person before.

The Kylie Blackwood charges

The allegations concerning the murder of Kylie Blackwood relate to events on 1 August 2013, some three months after the events concerning Mrs Prohaska. Mrs Blackwood, a married woman with three children, was aged 42 when she was killed. The family resided at McCaffery Rise, Pakenham. Mrs Blackwood had recently commenced a part–time job as a sales assistant at a women’s fashion store in Berwick, completing her last shift there on 31 July 2013.

The days leading up to 1 August 2013

The Crown allege that the accused, on 30 July 2013, hired a Nissan Tiida ‘TI’ sedan vehicle, paying by way of debit card in his own name for a two day hire. He provided his mobile phone number (last three digits 189) as the primary contact number and the phone number of an associate, Glen S, as a secondary contact. Glen S had driven him to the car hire venue. The car was due to be returned on 1 August 2013 at 1.30pm.

On 31 July 2013 Mrs Blackwood started work at 9.00am. During her shift at work she tried on and then purchased a new pair of jeans with the purchase occurring at 2.05pm that day.

At 6.20pm on 31 July 2013 the accused man’s former partner, Nicole T, parked outside the Masonic Centre in Koo Wee Rup and waited for her daughter to finish a dancing class being conducted in the venue. While she was waiting there the accused pulled up next to her in a vehicle which she described as similar to a Nissan Pulsar and white or pale coloured. Ms T said that the accused got out of the vehicle and walked towards her vehicle wanting to talk. Her statement which is referenced in the SPO records ‘he had a black hat on with what I’m pretty sure was white sunnies sitting on the rim.…he had noticeable dark stubble that I could see ….I noticed he was wearing a jacket which had previously belonged to my brother.’ Ms T described the jacket as a grey and navy horizontal striped hoodie style jacket. She referred to there being a number on the left chest pocket. On seeing the accused approach she wound up her windows and began to use her phone.[16] The accused returned to his car and drove quickly away. The Crown allege that the vehicle that the accused was seen in by Ms T was the Nissan Tiida hired by the accused. Photographs of the jacket referred to by Ms T were later produced to police from Facebook images of photos of her brother wearing it.

The events of 1 August 2013

[16]This information may not be led in evidence on the basis of a risk of showing propensity. The parties are still deciding how the evidence will be led as to the movements of the accused after approaching Ms T’s car.

On 1 August 2013 Mrs Blackwood was at home during the morning following her children leaving for school between 8.00 and 8.30am. Mrs Blackwood's husband returned home from his workplace for a brief time around 11.00am, saw and spoke to Mrs Blackwood, then left again. At that time she was wearing the new jeans she had purchased the previous day. Soon after Mr Blackwood departed Mrs Blackwood appears to have left the house and taken her car to a nearby carwash. She then went to a local shopping centre in Officer where she did some shopping.

It appears from CCTV imagery that she left that shopping centre at about 12.16pm and her car was captured on CCTV in Balmoral Avenue, Pakenham, travelling in the direction of her home, which is about 4½ kilometres from the shopping centre she attended. During the time she was away from her premises a roof tiler, Mr Pratt, was working on a roof at premises at [redacted] McCaffery Rise, Pakenham with other tradesmen. [redacted] McCaffery Rise looks down on the Blackwood residence at [redacted] McCaffery Rise (‘Blackwood residence’).

Mr Pratt took a break from his work and noticed a male walking up the court on the western side of McCaffery Rise from the southernmost corner of the Blackwood residence, hard up against the property line. The male was taking a strong interest, in the scene as if he was ‘casing’ the premises. The male then paused at the northern most corner of the Blackwood residence and turned around and walked back down the court, still engaging in the same behaviour of taking a strong interest in the Blackwood residence. The man did not appear to be carrying anything.

Mr Pratt resumed his work and noticed a neighbour return home at [redacted] McCaffery Rise next door to where Mr Pratt was working. That neighbour was Nevada S.

A person delivering parcels for Australia Post delivered a parcel to the Blackwood residence shortly after 11.50am. The roller door was observed by that person to be down at the time.

Around 12.20pm Mr Pratt observed a lady driving a black SUV pull into the driveway[17] of the Blackwood Residence, get out of her car and walk to the front of the property to check the bins before going inside the house. The person he observed is alleged to have been the deceased, Mrs Blackwood.
[17]The car was parked in the garage of the house.

The Crown alleges that a Nissan Tiida sedan was captured on CCTV travelling east along Balmoral Avenue Pakenham in the direction of McCaffery Rise at 12.22pm and then again at 12.23pm travelling away from McCaffery Rise. At 12.31pm it was captured travelling east towards McCaffery Rise along Balmoral Avenue.

Mrs Blackwood appears to have unpacked her groceries from Woolworths and the Reject Shop. She was in the study of her home apparently using her computer when it appears that an intruder entered by stealth and disturbed her whilst she was looking at a website on the computer. There were no signs of forced entry to the house.[18] The computer records suggest the browsing session was truncated at 12.50pm. The chair had been pushed backwards from the computer desk and a picture frame close to the computer had been knocked over. At around 12.50pm next door neighbour, Helga H, heard Mrs Blackwood screaming and thought that sound came from the vicinity of the Blackwood study. A confrontation between Mrs Blackwood and the offender appears to have occurred near the couch in the sunroom where the offender stabbed Mrs Blackwood repeatedly in the upper body, and neck causing fatal injuries. The offender left the house with cash, Mrs Blackwood’s Suncorp credit card and a small package containing unknown items.[19]
[18]Access to the house can be obtained through the garage if the garage door is open, which is alleged to be the likely way the offender entered the house.
[19]The Crown allege that the parcel delivered that morning was opened and its external packaging discarded at the scene but the contents were taken from the scene.

About 20 minutes after he had seen Mrs Blackwood check the rubbish bins, Mr Pratt saw the same male that he had seen earlier wearing the same clothing, walk out of McCaffery Rise towards Balmoral Way. The man appeared to be carrying something in his hands that resembled a small package. Mr Pratt lost sight of the man as he left the court and walked east towards Balmoral Way.

The Crown allege that the person seen by Mr Pratt was the person who attacked and killed Mrs Blackwood and that the accused was that person. CCTV footage obtained by police shows a white Nissan Tiida sedan travelling west away from the vicinity of McCaffery Rise at approximately 12.56pm. It is the Crown case that the accused left the Blackwood residence and drove about three kilometres to a National Australia Bank ATM at 102-106 Main Street, Pakenham. The time it would take by car is estimated to be 7 minutes. At 1.05pm attempts were made to use the stolen Suncorp card to withdraw money. It is alleged that the wrong PIN number was entered three times in rapid succession. Shortly afterwards at 1.30pm the accused made a cash deposit of $50.00 into his own account at the same bank.

Crime scene evidence

At around 3.30pm, the Blackwood children were dropped off at their house by neighbour Mr F. They entered the house through the open garage door and went through the unlocked internal door into the house where their mother’s body was discovered on the couch. After notification of neighbours, emergency services were called.

Subsequent crime scene examination revealed that approximately $95 in cash and Mrs Blackwood’s Suncorp credit card were stolen, but examination of the scene by police with input from Mr Blackwood, failed to identify any other significant items stolen.

Within the kitchen a Crime Scene Examiner observed a Woolworths shopping receipt, an iPhone 4, and iPad 2, a handbag, a cardboard coffee cup and bills on the bench area of the kitchen and Mrs Blackwood’s leather purse was located in a closed position adjacent to the bills, but contained only 45 cents. In the study there was a desktop computer, an iPod, and iPad Mini, and adjacent to the desktop computer a Commonwealth Bank credit card in the name of Kylie Blackwood. The desktop computer page open was for a cosmetics website.

No weapon was found at the scene and no knives or sharp implements were found to be missing from the house.

At the time of her death Mrs Blackwood was wearing the clothing that she was last seen in by Mr Blackwood. Post mortem examination of Mrs Blackwood on 2 August revealed multiple incised wounds of varying depth and lengths to the head and neck and upper chest, as well as wounds on the left arm and right hand which were consistent with defensive injuries. Regarding the stab wounds to the neck they were considered to range from moderate to severe and were caused by a single edged weapon. The cause of death was given as multiple stab wounds to the neck and chest.

The hire car

The accused did not return the Budget Nissan rental car by 1.30pm on 1 August 2013 as required under the contract and attempts by the rental agent to contact the accused that day were unsuccessful. The rental car was found some days later outside the Budget branch in Pakenham.

The Pratt FACE Image

On the day after Mrs Blackwood was murdered Mr Pratt contributed to the compilation of a 'FACE' composite image of the male he had seen that day. He described a Caucasian male, late 20s to mid-30s, of medium build, with dark stubble, wearing dark denim jeans or similar, dark shoes, a black baseball cap and dark sunglasses and that the man was wearing a filled out hoodie jacket with dark blue and matt grey stripes.

It is the Crown case that the jacket described bears a striking resemblance to the jacket belonging to Nicole T's brother, which she saw the accused wearing the previous evening. The Crown allege that the FACE image compiled by Mr Pratt bears a strong likeness to the accused.

Crime stoppers reports and police conversation with the Accused

On 5 August 2013 police put out a media release including a verbal description of clothing worn by the offender, but the actual FACE image was not released at that point. Following the media release Nicole T contacted Crime Stoppers and nominated the accused based on her observations of the accused the day before the incident.[20]
[20]This notification will not be led in evidence.

Following nomination of the accused as a suspect to Crime stoppers, Detective Howse attended the accused's premises at 6 Jennifer Court, Pakenham on 12 August 2013 and again on 14 August 2013 and left a card requesting him to contact police. Eventually he arranged to meet with the accused and discuss their inquiries into the death of Mrs Blackwood.[21] A detailed conversation between Detective Howse and the accused occurred on 20 August 2013.
[21]The Crown do not suggest that the accused was avoiding police. An earlier meeting at his house on 15 August was truncated by Detective Howse because of other urgent police matters.

On 20 August 2013, Detective Howse told the accused that he was making inquiries into the death of Mrs Blackwood and that he was not a suspect. The accused told Detective Howse that:

(a) he was residing at 6 Jennifer Court Pakenham and utilised mobile phone number ending 189;

(b) he did not sleep at the Jennifer Court address on 31 July 2013 or 1 August 2013. Instead, he was staying in the Waverley Gardens area with a friend. He was doing something with ice during that time. He declined to provide any further details of the location he was staying at or the person he was staying with;

(c) on 1 August 2013 he was trafficking “Ice” through a number of locations in the outer south eastern suburbs; he was back at Berwick at 1.30pm and drove to Pakenham and met two people he would not name;

(d) he went to the Donut King at Pakenham Market Place for lunch;

(e) he went between Waverley Gardens and Mordialloc in the evening before returning to Jennifer Court at approximately 9.30 to 10.00pm.

He said he was using a friend’s car but declined to provide details of that vehicle or of the mobile phone number he had with him, saying that to do so would incriminate him in drug activity.

Regarding the mobile phone number assigned to him at the time: ending 189 call charge records obtained by police revealed that this number was switched off on 31 July and for the majority of 1 August 2013 and it did not become active again until 6.00pm.[22]
[22]This information may not be led in evidence and is still being discussed between the parties.

Part of the accused's account was that he had been at Donut King, Pakenham between 11.00 and 3.00pm, but CCTV footage viewed by Detective Howse covering the period of 11.00 to 2.00 at that location failed to confirm the accused man’s presence. Subsequent viewing of the CCTV for the entire period 11.00 to 3.00 by Detective Kyle Simpson failed to confirm the accused man's presence.

Sarah W’s response to the Pratt FACE image

On 22 August 2013 the FACE image compiled by Mr Pratt was released to the public. Following the release of the FACE image to the public, Sarah W, a former partner of the accused, had a conversation with her son discussing the likeness of the image to the appearance of the accused, and the likeness of the jacket in that image to a jacket the accused previously owned and wore.[23]

Conversation between Sarah W and the accused in September 2013: incriminating conduct

[23]The admissibility evidence of Sarah W’s reaction to the FACE image is challenged by the Defence

In early September 2013 the accused was injured in a serious car accident and was hospitalised at the Alfred Hospital and then at the Melbourne Rehabilitation Centre. Ms W visited the accused and whilst there asked him if he had committed the murder of Kylie Blackwood, although she referred to her name as Kylie Blackwell. The accused said that he had not, but that he needed an alibi for that day and had already been questioned by police: he needed the alibi because he was doing armed burglaries that day and he wanted Ms W to say that he had the kids that day and met her at 4 o'clock to give the kids back. Ms W declined to assist. This conversation is the basis of a notice of incriminating conduct filed by the Crown.[24]

Distances between key locations

[24]The admissibility of this conversation as incriminating conduct, or at all is challenged by the Defence.

The Crown allege that travel times from the Blackwood residence to the NAB bank in Pakenham by car is about six minutes, tying in with sightings of the Nissan Tiida on CCTV footage, the last known usage of the victim's desktop computer, and the attempt to use the Suncorp credit card at the NAB Pakenham branch at 1.08pm. The Crown place the accused at the same branch of the bank withdrawing $50.00 at 1.30pm.

Further forensic evidence regarding the crime scene for Event 2

Blood pattern analysis conducted at the crime scene supported evidence that Mrs Blackwood was killed near her couch in the lounge room and that she had remained stationary for a period of time whilst bleeding.

Arrest of the accused regarding Event 2

On 8 April 2016 the accused was arrested in Rowville and the premises that he was renting at that time were searched. Some baseball caps and dark sunglasses were seized. The accused made a ‘no comment’ record of interview, but supplied a DNA sample.

The jeans worn by Mrs Blackwood had been subjected to DNA profiling.

Comparison of DNA samples from Mrs Blackwood’s jeans with the accused man’s profile are important to the Crown case. They reveal the following results relevant to different parts of the pair of jeans.

Sample 16-5: above the right knee

A mixed four person DNA profile where the deceased was an assumed contributor. The resulting profile was one hundred billion times more likely if the mixture originated from the accused, the deceased and three unknown people randomly selected from the Australian Caucasian population, than if it originated the deceased and two unknown people randomly selected from the Australian Caucasian population.

Sample 16-6: the middle right leg

A mixed four person DNA profile where the deceased was an assumed contributor. The resulting profile was one hundred billion times more likely if the mixture originated from the accused, the deceased and two unknown people randomly selected from the Australian Caucasian population, than if it originated the deceased and three unknown people randomly selected from the Australian Caucasian population.

Sample 16-8: the crotch

A mixed three person DNA profile where the deceased was an assumed contributor. The resulting profile was 1600 times more likely if it originated from the accused, the deceased and an unknown person randomly selected from the Australian Caucasian population than if it originated from the deceased and two unknown persons.

Sample 16-9: the upper left leg

A mixed three person profile where the deceased as an assumed contributor. The resulting profile was 20,000 times more likely if it originated from the accused, the deceased and an unknown person randomly selected from the Australian Caucasian population than if it originated from the deceased and two unknown people randomly selected from the Australian Caucasian population.

Sample 16-10: the middle left leg

A mixed three person DNA profile, where the deceased was an assumed contributor. The result was one hundred billion times more likely if the mixture originated from the accused, the deceased and one unknown person randomly selected from the Australian Caucasian population than if it originated from the deceased and two unknown persons randomly selected from the Australian Caucasian population.

Sample 16-11: above the left knee

A mixed four person DNA profile was obtained, where the deceased was an assumed contributor. The result was one hundred billion times more likely if it originated from the accused, the deceased and two unknown persons randomly selected from the Australian Caucasian population than if it originated from the deceased and three unknown persons randomly selected from the Australian Caucasian population. Regarding this particular sample, the profile appears to have originated from four people comprising one major contributor and three minor contributors, with the deceased assumed to be one of the minor contributors and the accused cannot be excluded as the major contributor.

Other matters of relevance to the charged offences

The Blackwood matter received extensive publicity in the aftermath of Mrs Blackwood’s body being found. Evidence received during pre-trial argument included that police extensively investigated other possible suspects in the Blackwood matter, and reached the conclusion that it was highly likely that the offender was a stranger to Mrs Blackwood and that no one was known to have a motive to attack her. Their investigations included looking into the whereabouts of convicted or known burglars or armed offenders believed to be operating in the south–eastern suburbs at the relevant time.

Coincidence Notice

A Coincidence Notice was filed by the Crown on 8 March 2019 pursuant to s 98(1)(a) of the Evidence Act 2008 (Vic)(‘EA’).[25] The Notice indicates that the prosecution intends to adduce evidence which, having regard to the similarities in the events, and the circumstances in which they occurred, will be relied upon to establish that the accused did a particular act or acts being:

1.1The attempted murder of Ilona Prohaska, (and related charges) aggravated burglary of her residence and theft (Event 1); and
1.2The murder of Kylie Blackwood, aggravated burglary of her residence and theft (Event 2).

[25]Coincidence Notice (‘Notice’) Evidence Act2008 (Vic)(‘the EA’) s 98(1)A.

The Notice alleges that it is improbable that Events 1 and 2 were perpetrated by two different offenders coincidentally having regard to both the events and circumstances in which they occurred. That it is improbable that there were two different offenders between May and August 2013 in the south–east suburbs of Melbourne who savagely stabbed to the neck two adult females who were alone at the time in their respective houses, then stole their bank cards and shortly thereafter, used or attempted to use those cards by entering a PIN at an ATM. Further, that there is a ‘match’ to the accused on the profiles obtained from clothing worn by each victim at the time of the attacks (this aspect of the Notice is intended to refer to DNA profiling results).

The Notice outlines that the fact in issue sought to be proved by relying on coincidence reasoning is the identity of the offender in each matter.

A summary of the coincidence evidence sought to be relied on is captured in Table ‘A’ to the Notice.

The Notice lists the following points of similarity upon which the prosecution seek to rely:[26]
[26]Notice, [6].

6.1Each matter involved a female adult victim who was at home alone during the day time;
6.2Each victim was savagely and repeatedly stabbed in the neck with a considerable degree of force;
6.3Each victim suffered critical injuries, such that Kylie Blackwood died at the scene, while Ilona Prohaska suffered life threatening injuries and was hospitalised for three weeks;

6.4      The accused was not known to the victims;
6.5      There was no sign of forced entry;
6.6      Cash and bank cards were stolen from the purses of each victim;
6.7Within a short period of time after each attack the bank cards were used by entering a PIN in an ATM;
6.8The offender in each case was described as wearing a hooded jumper, a cap and sunglasses or protective glasses;
6.9The events occurred within three months of each other in the south–east suburbs of Melbourne (Pakenham and Endeavour Hills);
6.10The accused had a connection with each location, his mother lived at Endeavour Hills and he lived at Pakenham;
6.11The accused is placed in the area where the stolen bank cards were used at the relevant times;
6.12There is a match to the accused on the DNA profiles obtained on the clothing worn at the time of the attack by each victim.

Table A appended to the Coincidence Notice includes detailed extracts from the depositions relating to the Ilona Prohaska charges and the Kylie Blackwood charges.

The relevant legislative provisions

Before turning to the opposing arguments put forward each party it is useful to refer to the relevant provisions in the EA.

The coincidence rule is provided in Section 98 of the EA:

98 The coincidence rule
Evidence that 2 or more events occurred 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 occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless―
the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
the court thinks that the evidence will, 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.
Note
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
Subsection (1)(a) does not apply if –
the evidence is adduced in accordance with any directions made by the court under section 100; or
the evidence is adduced to explain or contradict evidence adduced by another party.
Note
Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

Section 101 of the EA provides further restrictions on coincidence adduced by the prosecution in a criminal trial:

101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1)This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

(3)This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the accused.
(4)This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the accused.

The Dictionary to the EA defines the ‘probative value’ of evidence as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’

In summary, the coincidence rule places limitations on the admission of evidence sought to be led for a coincidence purpose, being the purpose of establishing that a person did a particular act or had a particular state of mind having regard to the similarities between events and/or the circumstances in which they occurred.

Therefore, the Crown must satisfy the Court of their entitlement to rely on the coincidence evidence in each case, and if successful the evidence would be cross admissible. The Court’s decision about coincidence evidence will influence the decision about whether the indictment needs to be severed with the Prohaska charges heard separately from the Blackwood charges.

Crown submissions in favour of permitting coincidence reasoning regarding the matters referred to in the Coincidence Notice

As noted above, the attack on Ilona Prohaska happened on Tuesday 21 May 2013 at approximately 3.00pm at [redacted] Georgette Crescent, Endeavour Hills, whereas the attack on Kylie Blackwood happened on 1 August 2013 at approximately 12.50pm at the Blackwood residence in, Pakenham, so there is a degree of temporal and geographic proximity between the two events.

The Crown submits that the evidence in each case strengthens the other case if coincidence reasoning is permitted to be used, by helping establish that the accused was the offender in each case. They submit that the similarities between Events 1 and 2 and the circumstances in which they occurred make it improbable that the events occurred coincidentally and were committed by different people.

This strength of this improbability is such as to give the coincidence evidence ‘significant probative value’. The coincidence evidence when considered together, along with all the other evidence drawn from each case makes it more probable that the accused was the offender in respect of both Event 1 and Event 2.

The Crown noted that the term ‘significant probative value’ is not defined in the EA but that in IMM v The Queen (‘IMM’)[27] the High Court said of the phrase ‘significant probative value’ in relation to s 97 of the Act (and therefore also by implication s 98):

Cross on Evidence suggests that ‘significant’ probative value is a probative value which is ‘important’ or ‘of consequence’. The significance of the probative value of the tendency evidence under s 97(l)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact–finding.[28]

[27](2016) 257 CLR 300.

[28]Ibid [44].

The Crown submitted that where the fact in issue is the identity of the offender, the coincidence evidence need not on its own establish this aspect of proof, if together with any other evidence to be placed before the jury it has this effect.

The Court was reminded that in assessing probative value the trial judge must take the evidence at its highest and assume that the evidence in question will be accepted as credible and reliable.[29] The cogency of the coincidence evidence is found in the degree of ‘similarity’ between the events and/or circumstances, therefore giving rise to the improbability of those events and/or circumstances occurring as a matter of coincidence. This should lead the Court to conclude that the challenged coincidence evidence carries significant probative value because it goes to the identity of the offender which is the primary fact in issue in each case.
[29]IMM v The Queen (2016) 257 CLR 300 [52].

Because the Crown in discharging their onus of proof must exclude beyond reasonable doubt the possibility that a person other than the accused was the offender for each of Event 1 and Event 2, the coincidence evidence is particularly important and ‘of consequence’ and ‘influential’ in respect of each case.

The Crown relies on:

(a) the similarities listed in the coincidence notice at 6.1 to 6.12;

(b) the conclusion that those similarities make it improbable that different people committed the offences in Events 1 and 2;

(c) the entirety of the circumstantial evidence in respect of Event 1 establishing the accused’s involvement in that event along with the entirety of the circumstantial evidence in respect of Event 2 establishing the accused’s involvement in that event; and

(d) the combined force of these matters which should lead the Court to conclude (subject to s 101) that the evidence in respect of each event should be cross admissible in order to prove that it is improbable that someone other than the accused was the offender in each of Event 1 and Event 2.

The Crown submits that, ‘the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence’.[30] Also that there are significant similarities listed in 6.1 to 6.12, but that the most striking similarity is the presence of biological material providing a strong DNA profile consistent with the accused on the clothing worn by each victim at the time of the attack.
[30]Per Simpson J in R v Nassif [2004] NSWCCA 433 at [52].

The Crown does not place any significant reliance on the visual identification by Mrs Prohaska of the offender she encountered (other than her account of the offender’s clothing) as part of the evidence supporting coincidence reasoning noting that Mrs Prohaska’s description of the offender is only one aspect of the circumstantial evidence and does not undermine to a material degree the probative value of the totality of the circumstantial evidence.

The Crown submitted that the differences in the nature of the intrusion into each victim’s home and the dissimilarities in some of the apparent features of the physical events do not detract from the fact that on each occasion the female victims were at home alone and were attacked to the neck with a knife with severe force. Along with other features of similarity, the evidence when viewed together with other evidence is sufficiently cogent to be admitted under the coincidence rule. The coincidence evidence was striking and when combined with other circumstantial evidence strongly supported the improbability that someone other than the accused was the offender in each case.

The Crown further argued that it would be unfair to prohibit the Crown from relying on the coincidence evidence as part of their proofs to establish that the accused was the offender in each case and that in particular, the strength of the evidence in the Prohaska case, would be disadvantaged by the non–availability of coincidence evidence relating to the Blackwood case. The evidence of coincidence was particularly important in respect of both Event 1 and Event 2 to rebut any attack on the DNA evidence and to assist in negating any suggestion of innocent transfer or adventitious match.

The Crown relied on Court of Appeal’s reasoning in Robert Pearson (a pseudonym) v The Queen,[31] considered further below, where it was held that the question is whether the circumstances as a whole relied on by the prosecution demonstrate a probative similarity (and not whether particular elements of the circumstances taken in isolation do so).
[31][2016] VSCA 341, [25].

In response to an argument by the Defence that s 101 of the EA should preclude reliance on coincidence evidence in either case because the probative value of the evidence does not substantially outweigh any prejudicial effect it may have on the accused, the Crown noted that although the term ‘prejudicial effect’ is not defined in the EA, it may be interpreted to include the risk that a jury would give too much weight to the coincidence reasoning (‘reasoning prejudice’) or that the emotional impact of the coincidence reasoning would destroy the fact finders objectivity (‘emotional prejudice’).[32]
[32]Uniform Evidence in Australia 479.

Whilst the Defence adverted to the potential danger that a jury would misuse the coincidence evidence to convict the accused for the offences in relation to each event without having first established that he was the offender in relation to either, the Crown submitted that this argument should not preclude the admission of the coincidence evidence.[33] The Crown relied on Davies v The Queen[34] which concerned an appeal from convictions for arson and related charges. The events occurred in the same region of Victoria and the accused was alleged to have lit a series of fires in church doorways and to have left crucifixes at each location. The Victorian Court of Appeal upheld the trial judge’s determination that the very high probative value of the combined evidence of the three fires substantially outweighed any prejudicial effect on the accused’s case. The Court observed that the jury would ‘understand the need for separate consideration of the offences and the legitimate coincidence reasoning they could use.’[35]
[33]Accused’s submission [10].
[34][2019] VSCA 66.
[35]Ibid [157].

The Crown submitted that the present case is comparable to Davies and that in the present case, the similarities in the events and circumstances for each case make the prospect of coincidence improbable. The jury would be instructed to consider the evidence in relation to each event separately and be warned as to the limited purpose for which coincidence reasoning was being relied upon.

The Crown noted that another aspect of the Defence argument in the present case against the admission of coincidence evidence was that once a jury were informed of the presence of the accused’s DNA profile on the clothing of each victim they would be overwhelmed by an illegitimate process of reasoning, swamping any prospect of a fair trial. However, any prejudice that may arise from joinder could be dealt with by appropriate directions to the jury warning them about limitations on the use of the evidence and directing them about separate consideration. The prejudice relied on by the Defence was in effect, no more than a recognition that the coincidence evidence was highly probative and indicative of the guilt of the accused.

The Crown relied on the words of Gleeson CJ in HML:[36]

In this context [propensity], prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect.

The Defence submissions against permitting coincidence reasoning regarding the matters referred to in the Coincidence Notice

[36]HML v R; SP v R; OAE v R (2008) 245 ALR 204; (2008) ALJR 723; [2008] HCA 16 [12].

The Defence submitted that for coincidence evidence to be admitted, it must pass the ‘high hurdles’ in s 98 and s 101 of the EA.

Whilst there was ‘superficial attraction’ to the Crown’s arguments in favour of permitting coincidence reasoning, it was that attraction that makes the admission of the evidence so dangerous and so unfairly prejudicial.

The Defence argued that close objective scrutiny reveals that:

(a) the coincidence evidence does not have significant probative value; and

(b) the probative value of that evidence does not substantially outweigh any prejudicial effect it may have on the accused.

The Defence submitted that there was a further danger arising from the horrific nature of the attack in each case, together with the scientific evidence, which would create a real risk that the jury’s reasoning processes would be overwhelmed by unfair prejudice.

The jury would be at risk of embarking on an illegitimate process of reasoning, and fail to give proper consideration to Defence arguments about secondary or tertiary transfer of DNA. This would have particular importance for the Prohaska charges where the extent of other evidence relied on by the Crown to connect the accused to that event is less.

Further, the jury would fail to give proper weight to the confounding evidence flowing from Mrs Prohaska’s description of her attacker in quite different terms from the visual appearance of the accused.

The detailed visual identification evidence of the offender by Mrs Prohaska was critiqued by the Defence and submitted to be inconsistent with the offender in her case being the accused. The Defence submitted that when in 2018 Mrs Prohaska was shown a photo board that included the accused she could not identify him as the offender. The Defence summarised her identification evidence as follows:

She did not identify the accused as her attacker. She was also shown a single photograph of the accused. She said that she had never seen the man depicted in that photograph (the accused)before. She described the palm of her attacker as being lighter than the skin on the other side of his hand She said her attacker was "as thin as an earthworm", thinner- indeed, a lot thinner than the accused. She said her attacker's nose was different to the accused's nose. She said her attacker's mouth was different to the accused's mouth. She said her attacker's skin colour was different to the accused's skin colour. She said her attacker's hair colour was different to the accused's hair colour. She said her attacker's eye colour was different to the accused's eye colour. Notably, she said at the committal hearing at which she gave evidence that if the accused was:... a criminal, “[it] would be good [if he was] caught ... , but I don't want to say anything that's not true”.

The Defence submitted that when the evidentiary matrix going to identification is considered it is such as to deprive the evidence in the Prohaska case of sufficient force to establish that the accused was the offender against Mrs Prohaska, therefore depriving it of utility in the proof that the accused was the offender against Mrs Blackwood.

The Defence observed that are significant dissimilarities between each event. The man in the Prohaska matter rang the intercom before entering the house when Mrs Prohaska answered the door and in the attack on her hammered a knife into each side of her neck. The offender in the Blackwood matter entered the study and then somewhere near the couch in the lounge room of the premises stabbed Mrs Blackwood repeatedly to the upper body.

Ultimately, it was submitted that in order to protect the integrity of the trial process the indictment should be severed, and if the Crown sought to proceed in respect of the Blackwood charges (Event 2) first, the Crown ought not be permitted to rely on coincidence evidence in that trial. If the accused were to be convicted on the Blackwood charges the Crown could then argue in favour of leading coincidence evidence for Event 2 with the benefit of the trial evidence being known.

Applicable case law
Similar fact cases before the inception of the Uniform Evidence Act

Cases decided at common law on the basis of the application for similar fact evidence shed light on the processes of reasoning that were a precursor to the coincidence rule in the EA.

The notorious case of Makin v Attorney General(NSW)[37] involved two charges of murder of babies. The investigation into Mr and Mrs Makin began after they ‘adopted’ the illegitimate son of a young Redfern woman whose child was never seen again. Discoveries were made of the corpses of a number of other babies in the gardens of houses previously occupied by the couple, in circumstances where evidence was available of the couple having ‘adopted’ other babies who were found to be missing. The decision at trial to permit the admission of similar fact evidence in the murder trials for the two babies who were the subject of the counts was approved by the Full Court of the Supreme Court of New South Wales and upheld by the Privy Council.
[37][1894] AC 57.

The English case of R v Morris[38] (‘Morris’) is also of interest. The accused was charged with murdering an 8 year old female in 1967 and jointly presented for an attempt to abduct a ten year old female child in 1968 and for a charge of indecent assault on a five year old girl in 1968. The identity of the offender was the principal issue at trial and the evidence on each charge was found to be cross admissible, strengthening the charge of murder. The offences against each of the three victims occurred in the same location close to the home of the accused. Regarding the charge of murder, there was some independent evidence incriminating the accused but the circumstantial evidence was greatly strengthened by similar fact evidence relating to the other two children. Regarding the charge of abduction, there was independent evidence from a witness who saw a car at the time of the abduction and described the car in similar terms to the accused man’s car, including giving a close approximation of the registration plates. The third victim; the child of five had been staying at the house occupied by the accused and lewd photographs had been taken of her by the accused. In respect of the murder charge the deceased child’s body had been found positioned in a very similar manner to the photographs of the child who was the subject of the lewd photographs. It was held that the combined evidence derived from each case was cross admissible on a similar fact basis supporting the prosecution case that the accused was the offender on each charge, despite deficiencies in the available evidence for each case taken alone. The fact that one of the three young girls had been murdered whereas the five year old girl was not the subject of violence was explicable because of the different circumstances under which the accused had gained access to each child.
[38](1969) 54 Cr App R 69.

The Victorian Full Court considered similar fact evidence in the case of R v Vaitos,[39]where the accused was charged with 18 counts of criminal offences including rape and burglary charges all of which flowed from attacks on 16 different women carried out over a 15 month period in the eastern suburbs of Melbourne. At trial, the key issue was identification of the accused as the offender. The prosecution submitted that a number of features of the attacks provided a basis for ‘similar fact’ reasoning, even though no single offence charged contained all the features relied upon. These features included the use of a silver hand gun, the offender wearing a black balaclava, the victim being forced to become completely naked in the offences involving sexual assaults, comparable statements and threats by the offender to the victims, and the fact that the women were generally attacked in their house alone.
[39](1981) 4 A Crim R 238.

Dismissing the applicant’s appeal against conviction, Young CJ, Murphy and O’Bryan JJ held that:

Where evidence tendered to prove the commission of an offence also tends to prove the commission of another offence because the observable pattern of behaviour is so strikingly similar as to point to there being only one offender, the evidence will be admitted because of its compelling probative force, notwithstanding its prejudicial effect.

Considering the requirement that there be a ‘striking similarity’ between attacks, Murphy J stated:

A striking similarity may be seen either because of some unusual feature or distinctive mark common to the evidence on the counts being considered, or because of the combination of several features, no one necessarily uncommon in itself, but performed or combined in such a way that together they become striking.[40]

[40]Ibid 270.

Sutton v R[41] (‘Sutton’) concerned three separate events of sexual offending where the identity of the offender was in issue. The attacks were committed at schools in the same suburban area in Adelaide. The three cases were tried jointly. The High Court upheld reliance on similar fact reasoning and dismissed that accused man’s appeal from the Full Court of South Australia. The visual identification evidence implicating the accused as the person who committed the sexual attack on each of the three victims was not uniformly strong. It was stronger for one of the three complainants, but weaker for the others. However the prosecution were permitted to rely upon the combined weight of all the evidence based on similar fact reasoning to prove the accused was the offender in respect of all three victims. The comparison between the events was described by Gibbs CJ as follows:

I now turn to consider whether the evidence in the present case satisfies this test. Briefly stated, the similarities relied on are the following: 1. All the victims were girls in their teens who lived near where the attacks took place. 2. In each case the victim was grabbed from behind or from the side and a hand was placed over her mouth; the assailant's other hand was put round part of her body; she was threatened with death if she screamed (or, in the case of V.A.H., if she did not shut up) and was compelled to walk a short distance to a secluded place where the assault occurred. 3. The abductions of L.K. and D.M.T. took place in minor suburban streets a short distance from the junction between Port Road and Old Port Road; the abduction of V.A.H. took place in a minor suburban street about two or three kilometres from that junction. 4. In each case the sexual assault was carried out in the grounds of a school - in the cases of L.K. and D.M.T. it was the same school, although not at the same place in the school grounds. 5. In the cases of V.A.H. and D.M.T. there was oral, vaginal and anal intercourse: in the case of L.K. there was attempted oral intercourse only. 6. The assailant operated alone, approached on foot and used no weapon or blows. 7. During the abduction and assault or immediately afterwards the assailant expressed himself in "a curt, laconic, manner of speech", to use the description given by Wells J. 8. When the assault was over the assailant in each case left the girl where she was and headed in a direction consistent with one who was making for Port Road. 9. There was an interval of between five and six weeks between each of the three series of offences alleged. 10. L.K. and V.A.H. smelt cigarette smoke on the assailant; D.M.T. did not, but the assailant asked her if she could find his matches. 11. The descriptions of the assailant given by the victims contained points of similarity but some discrepancies.

[41](1984) 152 CLR 528.

Chief Justice Gibbs said:

I would not attach much significance to the evidence of the descriptions of the assailant given by each victim. That evidence is relevant, because it shows that the assailant could have been the same person in each case; if the descriptions had been of persons who were obviously different, the other similarities in the case would have been immaterial. However the descriptions given by the victims would have fitted any one of a large number of young men. Similarly the evidence that the assailant was a smoker is of very slight importance.
Nor would I attach much importance to the fact that the victims were young girls or that the assailant operated alone and approached on foot. These features of rape cases are not uncommon and are again only of negative significance in that they do not exclude the possibility that the same person may have been guilty in each case.
The fact that the assaults all took place within a limited area and within a limited period of time, and that in each case the assailant walked off as though he were going in the direction of Port Road also may be regarded as indicating no more than a possibility that the offender in each case was the same. Of course the fact that some of these similarities are of no great importance does not mean that they should be entirely disregarded since the whole of the circumstances must be considered.
There were three similarities on which the learned trial judge particularly relied. She said: "There was however striking similarity in the method of abduction and the method of conducting the alleged victim to the places where the offences were said to have been committed; a similarity in the fact that in each case the offences were alleged to have been committed in the grounds of a school at night and finally the commission in the first and third sets of charges of acts of vaginal, oral and anal intercourse." There is a close similarity between each of the three cases in the manner in which the victim was abducted and conducted to the scene of the assault, and in the choice of a nearby school as the venue of the assault. Whether any significant deviation from the common manner of committing sexual assaults is revealed by those circumstances is a question which can only be answered in the light of experience.

Chief Justice Gibbs also accepted that there was a close similarity in the nature of the assaults especially regarding two of the victims although overall he regarded the reliance on similar fact evidence in the case under consideration as ‘close to the borderline’.

Regarding the degree of similarity required at common law at that time, Gibbs CJ was prepared to accept that although the term ‘striking similarity’ was merely a label and like any other label apt to mislead, it conveniently indicated the sort of evidence required if the similarity was relied upon to identify the offender. Drawing upon the words of Scarman LJ in Scarrott,[42] Gibbs CJ observed:

It will not be sufficient if the similar acts alleged "are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration"

[42](1977) 65 Cr App R, 130.

In Hoch v R,[43] the High Court considered the application of similar fact evidence to charges against a teacher that he had sexually assaulted three adolescent boys at a home for boys. The High Court observed that since the boys were known to associate together there was a risk that the boys had ‘put their heads together’ and colluded in making their complaints. Mason CJ, Wilson and Gaudron JJ noted that in Sutton Dawson J had expressed the view, with which they concurred, that in determining the admissibility of similar fact evidence the trial judge must apply the same test as a jury applies in dealing with circumstantial evidence and ask whether there was a rational view of the evidence inconsistent with the guilt of the accused. The possibility of concoction was held to destroy the probative value of the evidence.[44] Of course, since the introduction of uniform evidence law the test for admissibility of coincidence evidence does not align with Hoch v R and the ‘no rational explanation’ test has no role to play. Another change to the law since Hoch v R is that since IMM the Court is required in determining admissibility to take the evidence at its highest.
[43][1988] HCA 50; (1988) 165 CLR 292.
[44]Ibid [9-10]

In Pfennig v The Queen[45] (‘Pfennig’) the accused was charged with the murder of a ten year old young boy by drowning him in the Murray river. The circumstances of the boy’s disappearance included sightings of the accused speaking to the boy and sightings of his van at a popular river side reserve where the deceased was last seen alive. Also the accused’s van was seen on the other side of the river at another reserve close to where the deceased’s clothing was located. It was considered unlikely that the boy would have gone to the other reserve of his own free will. Accidental drowning was capable of being excluded by the prosecution case. Although the boy’s body was never located, the Crown case gained strength from the admission of similar fact evidence showing that 12 months after the disappearance of the child in the charged count the accused pleaded guilty and was convicted for the abduction and sexual assault of a second boy aged 13. The second child’s abduction included the staging of a scene after abducting the boy with the boys belongings being left near a cliff top. This was similar to the way the 10 year old boys clothes had been left neatly folded at the reserve on the other side of the river from where he had been last seen alive. Whilst the similar fact evidence contained a risk of unfair prejudice by demonstrating evidence of criminal propensity, the High Court upheld the Crown’s reliance on similar fact evidence in the prosecution of the accused notwithstanding the high bar set by Hoch v R for admission of similar fact evidence.
[45][1995] HCA 7; (1995) 182 CLR 461

Coincidence cases after the inception of the UEA

The application of common law tests to similar fact evidence changed in jurisdictions that introduced the uniform evidence acts. The new statutory formulation concerning coincidence evidence was considered by the Court of Criminal Appeal in New South Wales in R v Ellis (‘Ellis’).[46]
[46][2003] NSWCCA 319 (‘Ellis’).

Ellis was a case in which the appellant had been charged with multiple counts of breaking entering and stealing or attempts to do so on commercial premises in rural towns in New South Wales where a distinctive modus operandi of entry or attempted entry was gained by extracting panes of glass from their seals. The trial judge had permitted many of the charges to be heard together and to be cross admissible on a tendency and coincidence basis and this decision was not disturbed on appeal.

It was held that ss 97 and 98, dealing with tendency and coincidence evidence were part of a legislative code covering the field once occupied by similar fact evidence at common law.[47] This approach was later upheld by the High Court in IMM.[48]
[47]Ellis, [74].
[48]IMM v The Queen 257 CLR 300, [95].

The trial judge in Ellis was correct to express his decision about tendency and coincidence in terms of the statutory test under the Evidence Act 1995 (NSW) rather than applying the previous common law test of ‘no rational explanation’.

Spigelman CJ, with Sully, O’Keefe, Hidden and Buddin JJ agreeing said:

As finally enacted in the Evidence Act 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.[49][74]

[49]Ellis [74].

Changes to the terminology with the substitution of the term ‘coincidence evidence’ for what was previously referred to as similar fact evidence with accompanying ‘precise and comprehensive definitions’ manifested an intention to ‘state the principles comprehensively and afresh’.

Spigelman CJ also said:

Of particular importance, however, is the formulation adopted in section 101(2) requiring the probative value of the 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 judgement 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.[50]

[50]Ibid [84].

Regarding the statutory test under s 101(2) to be applied when the tendency or coincidence evidence was found to have ‘significant probative value’ the court said:

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.[51]
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...My conclusion in relation to the construction of section 101(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.[52]

[51]Ibid [94].

[52]Ibid [96].

Nevertheless, his Honour observed in conclusion that ‘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”.

In R v Nassif (‘Nassif’)[53] the New South Wales Court of Appeal was presented with an appeal against an interlocutory decision where leave was not granted to sever an indictment containing charges related to four separate events concerning abduction, attempted abduction and/or indecent assault and related offending against four young female victims. The Crown gave notice of its intention to rely on tendency and coincidence evidence on the basis each offence against each victim was allegedly committed:
[53][2004] NSWCCA 433.

(a) in daylight hours;

(b) on a week day afternoon;

(c) in a suburban street;

(d) in suburbs within a short distance of one another;

(e) by a man in a car (in two cases, after an initial approach by the man on foot);

(f) without a weapon;

(g) without any disguise;

(h) wearing an item of clothing (either a bandana or a blue T-shirt) wrapped around his head;

(i) on a woman in her twenties, walking alone in a suburban street;

(j) in circumstances where the victim was released after a struggle or escaped by running away, without significant interference by the perpetrator.

In three cases the perpetrator physically dragged or attempted to drag the victim into the vehicle; in the fourth he attempted to grab her by the shoulder.

In three cases:

(i) the vehicle used was an EA Ford Falcon;
(ii) the vehicle used was known to have been stolen, shortly before the offence, from a shopping centre (in the fourth, the perpetrator told the victim the vehicle was stolen);
(iii) during the course of the offence the driver’s door of the vehicle was left open while the perpetrator took hold of the victim, (in the fourth case, the passenger’s door was left open);
(iv) the vehicle was parked on the wrong side of the road (in the fourth case, the vehicle was driven across a footpath).

In two cases:

(i) the perpetrator placed his hand over the victim’s mouth;
(ii) the perpetrator touched the victim indecently and made sexual suggestions.

In each case the victim gave police a more or less detailed description of her attacker. These may be summarised as follows:

(a) ethnic appearance: Middle-Eastern; Greek/Lebanese; possibly Middle Eastern; European/Mediterranean:

(b) age: about thirty-five years; mid-thirties; late twenties – early thirties (two victims);

(c) height: six feet (three victims); five feet ten – five feet eleven (one victim);

(d) build: large; muscular/stocky; very muscular, well built; solid build;

(e) complexion: tanned; olive (two victims);

(f) facial hair: three days’ growth (two victims); clean-shaven (one victim);

(g) headwear: cream bandanna; white bandanna; blue t-shirt (or faded blue T-shirt) wrapped around head (two victims)

(h) hair: short, light brown; bald, shaved (or possibly shaved head) (two victims).

(i) Three complainants identified a photograph of the applicant as being, of the array shown, the closest to the perpetrator, or very similar (one victim) to the perpetrator.

There was also some circumstantial evidence available to the Crown such as that the applicant was known at Bankstown Square Shopping Centre and known to wear a bandana covering his head. He had an injury to his chest when arrested, tying in with having been kicked in the chest by one of the victims, and a key to an EA Ford was found in his possession, which was capable of opening one of the vehicles observed by one victim.

Simpson JA upheld the trial judge’s reasons for allowing the evidence to be led as coincidence evidence and said:

Tendency and coincidence evidence are frequently referred to in the same breath, as though they were conjoined twins. However, they are not necessarily so interlinked, and there will be cases where evidence of tendency will be admissible when evidence of coincidence is not, and vice versa. In some cases, the sections may be used interdependently, or as the obverse of one another. For example, in a case such as the present, the Crown may wish to proceed by arguing that, if a jury found the applicant guilty of any one count, they could use his guilt of that offence in considering his guilt of any other offence, as evidence of his tendency to commit such crimes: and successive findings of guilt as accumulating or strengthening evidence of such a tendency. That would be true tendency reasoning. The more numerous the claims of tendency evidence, and the more specific, the stronger the probative value, and thus the more likely the admission of the evidence.
Alternatively, the Crown might argue, in terms of s 98 that the applicant was guilty of all offences because of the improbability of the events occurring coincidentally. In this respect the Crown would be entitled, under subs(2), to point to the similarities of the events, and the similarities of the circumstances in which they occurred. Again, the more numerous the items of similarity, and the more precise, the stronger the inference of improbability and the more likely the admission of the evidence. As it happens, in this case, the same evidence would lend itself to either reasoning process.
It is true that his Honour dealt pithily with the circumstances on which the Crown relied. However, he did give a short synopsis of each event, and he had before him the comprehensive and helpful tables prepared by the Crown, which I have earlier mentioned. His description of the crimes as “of striking similarity” was apt. In so describing the offences, he made reference to some, but not all, of the circumstances to which the Crown pointed as supporting the admissibility of coincidence evidence. He observed that a jury (that is, a jury empanelled in a single trial of all counts) would be required to decide whether it was satisfied beyond reasonable doubt that one offender was responsible for all or some of the four offences against the person. That is the same question that would arise, if tendency and/or coincidence evidence were admitted on separate trials.
This is an overwhelming case for the admission of both tendency and coincidence evidence. [54]

[54]Ibid [51]-[52], [54]-[55].

Regarding the trial judges' approach to the question of prejudice to the accused her Honour said:

Again, it is true that there is little reference to any specific prejudice arising from the tendency/coincidence evidence to be found in the short reasons for judgment. However, that, in my opinion, may be attributed to two circumstances: firstly, that it is obvious that there will be some prejudice to the applicant by reason of the submission to the jury of evidence not of one, but of four sets or pairs of offences. That is why both ss 97 and 98 require, as a prerequisite to admissibility, that the evidence have significant probative value. That is also why s 101 requires that a further step be taken of evaluating the probative value of the evidence against its prejudicial effect and requiring it substantially to outweigh that prejudicial effect before it may be used against an accused person.

If accepted, the evidence plainly supported the prosecution case…and linked the applicant to one of the five fires said to have been lit by the same person. It therefore supported the inference that, if the fires were lit by one person, that person was the applicant. In that way, the evidence was admissible in respect of all the fires.
The risk of unfair prejudice in our view amounted to no more than that the jury would give too much weight to the evidence. The judge addressed this possibility by directing the jury in his charge to be mindful of the so-called ‘CSI effect’…[75]

[75]Ibid [188]-[189].

In DPP v Denis Mariona (a pseudonym),[76] the accused was charged with 22 counts, including seven charges of arson and 11 charges of criminal damage. The charges related to two separate periods and involved two sets of victims who were unconnected with each other. The first set of charges related to threats of damage and destruction of property belonging to an alleged victim, AH, and members of his family. At the time of the events forming the basis of the charges, AH had been involved in a dispute with the accused’s partner. The second set of charges related to two alleged victims, LL and AG, who had made statements implicating the accused in the commission of criminal offences.
[76][2019] VSCA 155.

The trial judge held that the evidence on which the prosecution sought to rely was not admissible as coincidence evidence, as it did not satisfy the ‘significant probative value’ test. She therefore ordered that there be two separate trials. The proceeding before the Court of Appeal was an appeal against the trial judge’s refusal to certify that ruling and refusal to allow the Crown to rely on coincidence evidence.

The prosecution had referred to a number of similarities between the way the offences occurred during the two periods as forming a basis for coincidence reasoning. These included the fact that fully functional improvised explosive devices (‘IEDs’) were placed in the homes of both AH and AG; homemade crucifixes with the names of AH and LL were placed in locations where they were likely to see them; threatening text messages were sent to family members of both AH and LL from Telstra pay phones; and threatening notes, written in texta pens bearing similar language, were left in places likely to be found by the note’s target (AH and AG). The crucifixes were each made of wood, painted white, ‘had the name of the alleged target written on the crossbar in black capital letters, and had a large black question mark written on the upper right of the cross’.

The prosecution submitted that the evidence as a whole, and particularly the evidence of the IEDs and the crucifixes, met the statutory test for coincidence reasoning. The Court of Appeal agreed, stating:

In our view, the coincidence evidence was very powerful. Taken as a whole, it had very significant probative value on the issue of whether the offending in the two periods was the work of a single perpetrator. Proof of that fact was an essential step in the Crown case.
As the prosecution argued, the use of an IED and a crucifix in each of the two periods was a highly unusual feature. It was properly characterised as a ‘striking similarity’ between two sets of offences, which could not be explained by coincidence. Nor could coincidence account for the obvious physical and linguistic similarities between the various threatening messages sent to the separate sets of victims.[77]
[77]Ibid [24]-[26].

Consideration

In considering coincidence evidence under the EA in a criminal proceeding, if the evidence meets the test of having ‘significant probative value‘ the evidence will be admissible so long as the Court is also satisfied pursuant to s 101(2) that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused’s case. Probative value must be assessed separately from the prejudicial effect before undertaking the process of weighing each aspect to arrive at a determination.

Coincidence evidence turns on the cogency of probability reasoning based on similarities between the events, or circumstances surrounding the events, or both.

Assessment of the probative value of the coincidence evidence in the present case must proceed in accordance with the requirements laid down by the High Court in IMM[78] with the Court assuming that the coincidence evidence in issue if admitted into evidence would be accepted by the jury as truthful and reliable.
[78](2016) 257 CLR 300.

In the present case the Crown’s reliance on coincidence evidence is not intended to prove a particular state of mind on the occasion of each of Event 1 and Event 2, but rather is sought to be led to prove that the accused was the offender for Event 1 and Event 2, and that he acted in a particular way on each occasion. The objective is to establish this by reference to the improbability of the similarities in the two events and/or their circumstances being a coincidence.

Regarding each event and/or the circumstances in which they occurred, the Crown seeks to rely on the list of similarities at 6.1 to 6.12 to submit to the jury that it is improbable that those similarities are simply a matter of chance or coincidence.[79] This involves consideration of whether the evidence sought to be led for coincidence purposes is capable of rationally affecting the probability of the fact in issue in the trial, being the identity of the offender.
[79]See CGL v The Queen [2010] VSCA 26 [22] , [30]-[31]; Chen v R [2011] NSWCCA 145, [96].

The Court must undertake a close comparison of each event and the surrounding or underlying circumstances of each event. If the Court concludes that the evidence is ‘cogent enough to be admitted as proof of the identity of this offender’[80] or that there is a probative similarity when taken as a whole and also has regard to the other circumstantial evidence available to the Crown as a whole,[81] then depending on the probability of those similar events or circumstances occurring coincidentally, the evidence may meet the test of ‘significant probative value’ because of its capacity to strengthen proof that the accused was the offender in both cases.
[80]Tognolini v The Queen (2011) 216 A Crim R 188, 191 [6], citing R v Delgado-Guerra (2001) 120 A Crim R 434, [19].
[81]Robert Pearson v The Queen [2016] VSCA 341, [25].

Approaching the assessment in the way described in CGL, the sequence of questions to be asked involves:

(a) Step one: Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?[82]
[82]The Court notes the reservations expressed by Odgers in Uniform Evidence Law in Victoria (2010) at 430-431 about the first limb of the CGL test but in the present circumstances it is unnecessary to consider this question further. In any case, CGL is binding authority on this Court.

(b) Step two: If so, would the evidence of those events and circumstances tend to prove that the accused did the specified acts and was the offender?

(c) Step three: If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought to be adduced by the prosecution?

(d) Step four: If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?

Are the similarities in the specified events and/or in the circumstances in which they occurred, such that it is improbable that the events occurred coincidentally and if so, would the evidence of those events and/or circumstances tend to prove that the accused did the specified acts and was the offender? (Steps one and two).

The probative value of the coincidence evidence is integrally related to its importance as a component of proof in each case that the accused was the offender. Approaching the first question involves undertaking an assessment of the items of coincidence evidence referred to in the Notice in order to establish the cogency of the similarities relied upon by the Crown. Then an assessment must be made about the strength of the improbability that the identified similarities are merely coincidental.

In assessing the items of coincidence evidence referred to the Notice individually and globally, and whether they are strong or weak, the extent to which the circumstances referred to comprise commonplace events or expected circumstances as distinct from unusual or unexpected events or circumstances is relevant.

The Crown submits that proof that the accused was the offender in each case is greatly strengthened by the close comparison between the listed items of coincidence evidence referred to by the Crown in their Coincidence Notice, especially the DNA results found on the clothing of each victim which show a very strong probability of contribution by the accused to the DNA profiles obtained in each case.[83]
[83]Although the Crown do not propose to adduce the verbal equivalence scale for the DNA results reference was made to this scale in the course of legal argument. 29 July 2019 T53-55.

Evidence of an underlying unity, pattern of behaviour or striking similarity in the factual circumstances of each event, whilst not required to be shown in order for the evidence to meet the test for coincidence evidence, will nevertheless be persuasive if found to exist.

The assessment of the coincidence evidence referred to by the Crown involves considering the concatenation of circumstances attaching to each event and a undertaking a comparison which involves matters of fact and degree.

Temporal and geographical proximity of each event to the other should carry important weight where the events are not commonplace. In my view, the combined facts and circumstances of each event were far from commonplace.

Life-threatening stabbing attacks during home intrusions upon women alone in their homes during the day are fortunately a relatively uncommon occurrence. In each case there is an inference open on the evidence that the offending was perpetrated by a person outside the social milieu of the victim. Whilst aggravated burglaries (person present) involving physical confrontations with a victim are not a rare event, in each of Event 1 and Event 2 the victim was a female householder alone in her suburban home in the middle of the day. This is relevant to item [6.1] in the Notice.

In each of the two cases before me there is circumstantial evidence from witnesses who noticed a lone male person loitering in the vicinity shortly before the incident. In Mrs Prohaska’s case the description by Mr Brook of the clothing worn by that male person is fairly consistent with the clothing described to police by Mrs Prohaska. Regarding Event 2, Mr Pratt paid attention to the lone male who was loitering near the Blackwood residence in the timeframe leading up to the event and saw that person leave the premises also in the relevant timeframe in which the attack is said to have taken place.

I accept that a relevant difference between the two events is that for Event 1 the offender went to the front door and rang the intercom and waited for the door to be answered and for Event 2 the offender appears to have entered the house by stealth and surprised the victim who may have been on her computer prior to the confrontation occurring. For each event the offender disguised his appearance to some degree with the use of a cap, sunglasses or protective glasses and a hooded jumper. This is relevant to item [6.8] in the Notice.

The fact that each female victim was stabbed to the neck with severe and life-threatening force is a unifying feature, although in Event 1 the victim survived as a result of precipitous medical intervention, whereas in Event 2 the victim died at the scene. This is relevant to items [6.1], [6.2] and [6.3] in the Notice.

Even though the manner in which the stabbing of Mrs Prohaska was conducted was distinctive, involving as it did the use of a hammer with a knife, that part of the attack on Mrs Prohaska occurred when she was already submitting to the instructions of the offender, and given her advanced age and ill health, and the knock to the head she received when the door was forced open, her immediate submission to the offender was inevitable.

On the other hand, Mrs Blackwood, a younger woman, appears to have attempted to defend herself, based on the defensive injuries to her body. Mrs Blackwood suffered a greater number of injuries, including injuries to her head and upper body. The difference in the available evidence about how the actual events unfolded in each case is conditioned to some degree by the fact that Mrs Prohaska is available as a witness and is able to say what was done to her, whereas Mrs Blackwood is not, and inferences must be drawn in Mrs Blackwood’s case from injuries and crime scene evidence.

The differences in the way in which the offender acted in Event 1, and must have acted in Event 2, in order to gain the upper hand during each home intrusion, are not such as to void the operation of the relevant similarities between each event. As in the case of Morris discussed earlier, the fact that one victim was killed and another was not does not preclude other aspects of the events and circumstances related to a different victim being seen as bearing a close similarity.

More distinctive still, as a unifying feature attaching to each event, is the focused obtaining from each victim's purse of the victim's bank card and the use or attempted use of those cards immediately after concluding the attack on the victim by entering a PIN number at a nearby ATM. This is relevant to items [6.6] and [6.7] in the Notice.

In each case the accused can be placed in the general area[84] where the stolen bank cards were used, or attempted to be used, in the relevant timeframe, and in respect of Event 2 he can be placed at the very same bank branch where Mrs Blackwood’s card was attempted to be used shortly after the failed PIN attempts. This is relevant to item [6.11] in the Notice.
[84]By other evidence.

In addition to the significance of the geographical proximity of each event to the other there is the additional similar circumstance that the accused had a connection to both suburban locations at the relevant time. The residences of each victim were both in the south eastern suburbs of Melbourne. This is relevant to item [6.9]. The accused had a connection to each suburb because he resided in Pakenham at the relevant time about three kilometres from the Blackwood residence[85] and his mother lived in Endeavour Hills within a few kilometres of Mrs Prohaska’s residence. This is relevant to item [6.10].
[85]Evidence of Detective Howse given on 1 July 2019.

Perhaps the most salient feature of all that assists in establishing an underlying unity between the two events is the existence of a DNA profile consistent with the accused which was detected on the clothing of each victim. This is relevant to item [6.12]. The DNA results obtained from the clothing in respect of each victim are strongly supportive of the accused being a contributor to those DNA profiles.

There is a limitation to the weight to be given to the suggested similarity that there were no signs of forced entry in either case (relevant to item [6.5]) since entry was forced to Mrs Prohaska’s home by pushing open the door open when she answered it. However, in the context of the conduct one might expect in cases that involve a home invasion, it is true that the offender in each case does not appear to have used an object to smash a window or jemmy a door, in order to force entry into each house. The offender in each case would likely be aware of the need to avoid creating suspicion from other residents in a suburban location during the day. This might be a factor of relevance to the choice of the offender to adopt a relatively low key mode of entry to each victim’s house.

I do not place much weight on the suggested similarity that the accused was not known to each victim, per item [6.4] in the Notice. This matter involves inferential reasoning in the case of Mrs Blackwood who died at the scene, but it appears highly probable that she was attacked by someone who was a stranger to her. No one was identified as holding a motive to attack her despite extensive investigation into her phone contacts, computer contacts and inquiries with friends, family and associates. Police failed to uncover anything unusual in Mrs Blackwood’s lifestyle or past life. There is strong logic to the suggestion that the person Mr Pratt saw loitering near her home was the offender in the case of Mrs Blackwood.

Regarding Mrs Prohaska, the accused told police during his record of interview on the Prohaska matters that he had met Mrs Prohaska around the year 2000 and that he had been to her house in the past. He referred to her son Johnny Prohaska as a person he had sold speed to around 2013. It is unclear on the evidence in the depositions whether Mrs Prohaska had met the accused in the past: she did not recall ever having met him but accepted that her son may have been at school with a friend by the name of Scott. She did not think her son’s school friend had ever been to her house at a time when she was home. Police have been able to establish that Mrs Prohaska’s son, Johnny Prohaska and the accused each attended the same secondary school in Endeavour Hills although they were never at that school in the same period of time. Johnny Prohaska’s long term de facto partner Ms Bimbi did not know the accused as a friend of Johnny’s and could not recognise the accused from a photograph shown to her. She said she had never met Scott Murdoch. Johnny Prohaska is dead, having died of a drug overdose not long after the events before the Court.

The possibility that the accused knew Mrs Prohaska or her residence may be a point of distinction between the two cases. However, in my view, it is a minor distinction, and not one that makes the Crown’s coincidence argument untenable.

I now turn to Mrs Prohaska’s visual identification evidence regarding the physical features of the offender, which the Defence rely on to show that the offender in that matter was not the accused. This factor does not negate the strength of the similarities founding the coincidence evidence referred to by the Crown. There are a number of aspects relevant to the visual identification information provided by Mrs Prohaska that would need to be taken into account by a jury if the coincidence evidence is found to be admissible. Factors relevant to her capacity to provide visual identification evidence include the dates on which she was asked to recall the appearance of the offender, what she said at those dates and times including the period in 2018 five years after Event 1 when she was asked to look at photographs depicting the accused. The view Mrs Prohaska had of the offender at the time of Event 1 was obscured to some degree by his protective glasses, cap, hooded jumper. Mrs Prohaska received a knock to the head and an injury above her left eye when the offender forced the door open and she referred in her statement to a difficulty seeing properly when the offender demanded that she find a card in her purse.

Differences in visual identification evidence were noted in Sutton and in Nassif but they did not obstruct the assessment that similar fact or coincidence evidence was open to be left for the jury.

Regarding the existence of dissimilarities when considering coincidence evidence, such matters will not necessarily detract from the cogency of the coincidence evidence, depending on their overall significance. El-Haddad v The Queen[86] was an appeal to the New South Wales Court of Criminal Appeal and concerned 5 different counts which were heard together. The grounds of appeal challenged the admission of evidence with respect to counts 1, 2, 3 and 5 as tendency and/or coincidence evidence with respect to Count 4. Count 4, alleged the importation of a commercial quantity of a border controlled drug, namely (heroin) whereas the four other counts alleged the importation of marketable quantities of heroin, cocaine. The appellant’s submissions had pointed to dissimilarities between the evidence on Counts 1, 2, 3 and 5 from Count 4 such as that Count 4 involved (a) a shipping container, (b) which was shipped, not posted, (c) which came from Pakistan, (d) which involved a very much more substantial quantity of heroin, (e) whose re-direction came from the consignor rather than the consignee, and (f) which was much more sophisticated, including in respect of how the heroin was concealed.
[86]NSWCCA 10 [74]–[75].

Leeming JA said:

I do not accept the appellant's submission based on dissimilarities per se. Evidence which supports tendency or coincidence reasoning turns on whether there are relevant similarities or dissimilarities. Take for example one similarity: the use of telephone numbers 02 800X X924 and 02 800X X925. The 924 number was written on the packages in Count 2, 3 and 5, and on the Kay-Tee letter requesting that the container be delivered to Esaan Enterprises. The ASIC form for Esaan Enterprises used the 925 number. It is no answer to the implausibility of the identical or almost identical number being used to point to the fact that count 4 involved carriage by sea, using a freight forwarder, of a container, of a much larger and much purer amount of heroin. The question is whether the similarity is explicable by coincidence, not whether there are other points of difference.

His Honour considered that ‘relevant dissimilarities’ may dilute the probative value of the coincidence evidence but this would not necessarily mean that coincidence evidence lacked significant probative value.

In the present case I am satisfied that there is an underlying unity and a striking similarity in the coincidence evidence referred to by the Crown when the events and/or the circumstances in which the events occurred are taken as a whole, such that it is improbable that the events and/or circumstances occurred coincidentally. The detection of a DNA profile consistent with the accused from biological examination of samples taken from clothing worn by each victim is of particular significance in reaching this conclusion. This is relevant to item [6.12].

If the coincidence evidence is such that it is improbable that the events occurred coincidentally, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought to be adduced by the prosecution? (Step three)

The coincidence evidence must be considered along with all of the admissible circumstantial evidence relied on by the Crown to establish the identity of the accused as the offender in each case. This process involves taking a whole of evidence approach. Having already found an underlying unity and a striking similarity when the coincidence evidence is viewed globally, the next step is to consider the coincidence evidence together with the other circumstantial evidence and assess the probative value of the combined evidence in establishing that the accused was the offender in both cases.

Objectively viewed, the evidence available to the Crown for Event 2 (the Blackwood charges) when divorced from the Event 1 coincidence evidence may nevertheless provide very strong evidence that the accused was the offender. There are multiple DNA results on the new pair of jeans worn by Mrs Blackwood despite the accused having no past association with her or any member of her family. There is also the concurrence of Ms T’s description of the accused man’s clothing and appearance the night before the Blackwood murder, tying in with Mr Pratt’s description, provided to police that day and the FACE image depiction provided to Sgt Owens the following day.

Ms T also described the car driven by the accused in a similar vein to the description of the hire car which the accused had taken possession of on 30 July 2013. The hire car is said to be visible in CCTV footage in the vicinity of the incident proximate to the occurrence. Also the Crown points to the failed use of Mrs Blackwood’s Suncorp card at the National Australia Bank ATM in Pakenham at the very same branch where the accused withdrew $50.00 approximately half an hour later.

I accept the Crown’s submission that for the Blackwood charges, taking the Crown case at its highest for the purposes of assessing the evidence, even without the inclusion of coincidence evidence, the remaining evidence demonstrates a strong circumstantial case. The coincidence evidence derived from the Prohaska case lends further very significant probative weight to the other items of circumstantial evidence and helps show that the DNA results obtained in the Blackwood case are not likely to be a chance match. The coincidence evidence is important to the Crown in order to meet the criminal onus and standard of proof regarding the Blackwood charges.

Although removal of the coincidence evidence from a jury’s consideration in the Blackwood case would not necessarily be ‘a knockout blow’ for the Crown in discharging their onus of proof in the Blackwood case, the coincidence evidence has significant probative value for proof of the Blackwood charges. Indeed, it has very significant probative value.

The combined weight of the circumstantial evidence available to the Crown for Event 1 (the Prohaska charges) when divorced from the putative coincidence evidence is of a lower order. Undoubtedly, the strongest item of evidence in the Prohaska case is the DNA result obtained from Mrs Prohaska’s white jumper. Mrs Prohaska gave evidence about the purchase of the jumper and occasions of washing it in the past. When interviewed by police in 2018 the accused claimed a connection to Johnny Prohaska and said that he had sold him speed around the period of 2013 when Event 1 occurred. The association with Johnny Prohaska might ultimately be sought to be relied on by the Defence to raise questions about the possibility of secondary or tertiary transfer to explain the DNA result in that case. The Defence also points to the fact that when shown photo images of the accused in 2018 Mrs Prohaska did not identify the accused. She described the offender in different terms from his visual appearance in 2013. The Defence says her description is inconsistent with the accused being the offender.

The Crown rely in the Prohaska case on the circumstantial fact that the accused’s mother’s house was very proximate to Mrs Prohaska’s residence and that Ms T said the accused frequented his mother’s house in 2013 to ask for money.

The Crown is also able to place the accused at a location proximate to the Prohaska residence on 21 May 2013, being the Office of Corrections in Dandenong. This location is not far from the Bendigo Bank ATM machine where the offender used Mrs Prohaska’s card to withdraw money. The Crown rely on evidence of opportunity based on the times that it would take to go between these locations.

Nevertheless, the strength of the evidence in the Prohaska case is significantly diminished when separated from the addition of the coincidence evidence derived from the Blackwood case. The coincidence evidence sought to be led by the Crown plainly has significant probative value in proof of the Prohaska charges. Indeed once again my view is that the evidence has very significant probative value.

When all the coincidence evidence is considered together along with the other circumstantial evidence relied on by the Crown to establish the identity of the accused as the offender in each case, the coincidence evidence is capable of being strongly influential in establishing the Crown case that the accused was the offender for Event 1 and Event 2. In my assessment the addition of the coincidence evidence from the Blackwood case would likely be regarded by a jury as a crucial factor in their decision-making process regarding the identity of the offender in the Prohaska case and vice versa.

Accordingly, having undertaken an assessment of the coincidence evidence referred to in the Notice in the context of the other available evidence relied on by the Crown in each case to establish the accused as the offender, I am left in no doubt that the requirement that the Crown show that the evidence has ‘significant probative value’ is met.

Does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused? (Step Four: the application of s 101 EA)

Having determined that the coincidence evidence sought to be led by the Crown in each case meets the requirement of ‘significant probative value ‘under s 98, I must now apply the test in s 101 and consider whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect it may have on the accused.

In the context of the consideration of tendency evidence under s 97 EA the High Court said in The Queen v Bauer:[87] ‘Despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.[88]
[87][2018] HCA 40.
[88]Ibid [78].

In Hughes v The Queen,[89] the High Court considered the need to demonstrate close similarity between events in applying s 97 EA to a consideration of tendency evidence. The High Court referred to the restrictions imposed under s 101 once the evidence was found to have significant probative value and the intentional changes from the common law application of the Christie discretion and no rational explanation test applied in Pfennig.[90] As mentioned earlier, the application of the test in s 101 was also considered by the New South Wales Court of Criminal Appeal in Ellis.
[89][2017] HCA 20.
[90]Ibid [191]-[192].

It is apparent that the words ‘substantially outweigh’ require the Court in undertaking the balancing exercise to very carefully weigh the prejudicial effect of the evidence on the accused against the probative value of the challenged coincidence evidence. The requirement of substantial outweighing is a reflection of long held views that evidence of the kind under consideration must be approached and assessed very carefully before being allowed to be admitted into evidence before the jury. If coincidence reasoning is permitted the jury will need to be given careful directions not to reason based on the prejudice as a result of the number and seriousness of the charges against the accused and in light of the CSI effect regarding the DNA evidence. The jury will need to be directed in strict terms to apply separate consideration to the evidence relating to each case.

Whether the charges are dealt with in a joint indictment or otherwise, before a jury could convict the accused on either Event 1; the Prohaska charges or Event 2; the Blackwood charges the jury would need to be satisfied beyond reasonable doubt on the whole of the evidence relevant to that case that the accused was the offender.

A decision to permit a joint trial of the Prohaska charges with the Blackwood charges and to allow the Crown to lead cross admissible coincidence evidence carries some degree of prejudice to the accused. However, the prejudice is not the same as the prejudice arising from propensity evidence of the kind that occurred in Pfennig.

Matters to be considered in assessing the prejudicial effect of the coincidence evidence include whether the jury would embark on an improper process of reasoning because of the allegation that the accused was involved in two very serious violent attacks on female victims and whether an emotional response to the evidence would put at risk the juries’ capacity to undertake a fair and unbiased analysis of the evidence in each case.

The Defence have specifically raised the concern that the jury would be so overwhelmed by the evidence in the Blackwood charges that they would not give fair consideration to the Defence case in the Prohaska matter regarding defects in the visual identification evidence or the possibility of innocent DNA.

I accept that strong warnings will be required to ensure that the jury apply separate consideration to each case and to ensure the jury are not influenced by emotional responses rather proper processes of reasoning. Nevertheless, I have assessed the probative value of the challenged coincidence evidence as very significant for each case whereas in my view the prejudice to the accused can be ameliorated once appropriate directions are given. In the circumstances the probative value of the challenged coincidence evidence is not substantially outweighed by the prejudicial effect of admitting the evidence.

The risk of prejudice can be amply met by judicial warnings about the CSI effect, the need to avoid prejudice based on the joinder of the charges and the number of charges and directions about the need for separate consideration of each case.

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[2019] VSC 882

31 July 2019