SPA v The Queen
[2011] VSCA 306
•7 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0201 | |
| SPA | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WEINBERG and HANSEN JJA and JUDD AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 October 2011 | |
DATE OF JUDGMENT: | 7 October 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 306 | |
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CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Judge ruled evidence of four complainants cross-admissible as tendency and coincidence evidence – No error of principle – Ruling reasonably open – KJM v The Queen (No 2) [2011] VSCA 268 applied – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Backwell | Littleton Hackford & D’Alessandro |
| For the Respondent | Mr G J C Silbert SC with Ms A Moran | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I invite Hansen JA to give the first judgment.
HANSEN JA:
This is an application for leave to appeal against an interlocutory decision of a judge in the County Court that tendency and coincidence evidence is admissible on all charges in Indictment Y02852643. I mention the number of the indictment as in the same ruling the judge dealt with a separate indictment, Y02852643.1, involving other complainants in which she held that tendency and coincidence evidence is not admissible. The Crown not having sought to appeal from that ruling, no question arises on this application as to the correctness or otherwise of the ruling on that second indictment.
The subject indictment with which the present application is concerned contains 25 charges concerning four complainants. Except for one count of a threat to kill, all charges are sexual offences and some offences of violence committed against four female family members between 1970 and 1992. The complainants are respectively a sister, two nieces and a daughter of the applicant. The effect of the ruling is that their evidence is cross‑admissible at the trial.
The evidence proposed to be led is of charged and uncharged acts specified in separate tendency and coincidence notices.
The judge records in her ruling that there was no real argument that the evidence was relevant to the fact in issue. That was not surprising, given that the applicant denies that the offending occurred.
In her ruling the judge gave careful consideration to the submissions of counsel, noting that there were no differences between them as to the relevant principles, and analysed the proposed evidence and the issues that arose respectively under ss 97, 98 and 101 of the Evidence Act 2008. In accordance with the request of the County Court the ruling is attached to these reasons.
The applicant contends that the judge erred in ruling that the tendency and coincidence evidence is admissible. That was said to be constituted by the following erroneous findings:
(a) that the similarities relied upon by the prosecution had significant probative value;
(b) that the evidence of each complainant could be used by a jury to discern a pattern of behaviour; and
(c) that the similarities relied upon were sufficient to make it improbable that the behaviour described by each complainant occurred coincidentally.
In developing these basic contentions counsel for the applicant pointed to aspects of the various acts of offending in order to draw distinctions and dissimilarities as to the time, location, and the nature of the allegations to establish that neither alone nor in combination could they constitute tendency or coincidence evidence. He submitted that no judge acting reasonably could have concluded as her Honour did.
As has recently been made clear in KJM v The Queen (No 2)[1] an interlocutory appeal of the present nature is governed by the principles in House v The King.[2]
[1][2011] VSCA 268, [12].
[2](1936) 55 CLR 499.
In my view it was reasonably open to the judge to conclude as she did. There is no error of principle and it is not suggested that she did not take into account the relevant facts and circumstances. Rather, the challenge is made as to her evaluation of those matters.
The applicant raised one further point that was not raised before the judge. That was that concoction or contamination may be considered when considering the
probative value of the evidence. Doubtless in principle that is so, but there must be a basis for doing so as distinct from mere speculative suggestion. If it is desired to raise the point it should be done before the judge. To seek to raise the point before this court now for the first time is to short-circuit the ordinary processes. It is apparent from what counsel said that it is a point that he desires to raise and accordingly it should be left to be considered by the trial judge. In that sense the present application may be seen to be somewhat premature.
Somewhat similarly, in the course of his submissions counsel for the Crown raised the possibility that the trial might be more conveniently conducted if the Crown elected to rely on one only of the tendency or coincidence evidence. That, of course, is a matter for the Crown to decide in the conduct of the case.
For these reasons in my view the application should be refused.
WEINBERG JA:
I agree.
JUDD AJA:
I also agree.
WEINBERG JA:
The order of the court is that leave to appeal will be refused.
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APPENDIX A
RULING OF 25 AUGUST 2011
1.This ruling deals with an application by the prosecution to lead tendency and coincidence evidence against the accused on his trial in two separate indictments.
2.I must therefore determine, separately, in relation to each of these indictments, whether the evidence which has been identified on the notices filed is cross-admissible as between complainants on each indictment as either tendency or coincidence evidence, making it evidence that the jury would be entitled to rely upon as part of its determination on each count.
3.The first indictment is indictment Y02852643. There are 25 charges on this indictment. Each charge relates to allegations of sexual activity, apart from Charge 24, which relates to an allegation of making a threat to kill. There are four complainants on this indictment. All are relatives of the accused. They are the sister, two nieces and the daughter of the accused.
4.The second indictment is indictment Y02852643.1. There are presently 16 charges in this indictment and seven complainants. I was told by the prosecution that the charges relating to three of these complainants - that is, A, B and C - would be severed from this indictment and will each be the subject of separate trials.
5.This leaves charges relating to four complainants on the second indictment. Each of these complainants are said to be family friends or children of family friends of the accused man.
6.Both the prosecution and defence were agreed as to the legal principles to be applied by me in considering this application. It was agreed that I would first need to determine the fact in issue to which the proposed evidence relates. I would then need to look at the evidence that was sought to be characterised as tendency or coincidence evidence and satisfy myself as to whether the evidence was, in fact, capable of that characterisation.
7.If I were so satisfied, I would then need to deal with the question of whether the evidence had significant probative value, and if so, then deal with the final question as to whether the probative value of the evidence substantially outweighs the prejudicial effect to the accused of the admission of this evidence.
8.It was also agreed between the parties that the appropriate notices had been given under s 97 and s 98 of the Act. There was no real argument before me as to the relevance of the proposed evidence to the fact in issue in both the indictments. The fact is clearly whether or not the offending occurred. The prosecution sought to introduce the evidence in each indictment as cross-admissible in relation to each of the charges of sexual offending, in order to support the truthfulness of the allegations made of sexual offending in each charge, and to rebut any anticipated defence of fabrication.
9.Section 97 of the Evidence Act sets out the preconditions for admission of tendency evidence. I am required to assess whether the asserted tendency renders the facts asserted by the prosecution more probable. That is, whether it is sought to be admitted for a tendency purpose and, if so, as I have said, I need to consider whether the evidence sought to be led has significant probative value.
10.The Act instructs me that tendency evidence has probative value if it can rationally affect the assessment of the probability of the existence of a fact in issue and it has significant probative value if it has a significant important or substantial degree of relevance, having regard to the nature of the fact in issue.
11.In considering the probative value of the evidence sought to be led, I recognise that I should assume the truthfulness and reliability of that evidence sought to be adduced. The question of the truthfulness and reliability of the evidence will ultimately be a matter for the jury to assess if the application is granted. Defence counsel did not submit otherwise.
12.I was referred, by the learned prosecutor, to the case of GBF, in which the Court of Appeal examined some of the authorities on tendency evidence, and in particular, the New South Wales decision of Ford. In GBF, the court went on to say this: ‘Whether tendency evidence has significant probative value depends on the nature of the tendency. For example, evidence that an accused had a sexual interest in a complainant might be significantly probative of an allegation that he committed a sexual offence against that complainant, but without more it would not be significantly, if at all, probative that he committed a sexual offence against someone other than the complainant. Contrastingly, evidence that an accused had a tendency to commit a particular kind of act or to commit a particular kind of act in particular circumstances might be significantly probative of an allegation that the accused committed another act of the kind or committed another act of the kind in particular circumstances.’
13.In that case, the Court of Appeal warned that a trial judge should be loathe to accept that offending on one occasion is significantly probative of offending on another occasion unless there are significant or remarkable similarities as between previous acts and the acts in question, or the circumstances in which the previous acts were committed and the circumstances in which the act in question was committed, or unless the evidence reveals a pattern of conduct, a modus operandi or some other underlying unity which logically implies that because the accused committed the previous acts or committed them in particular circumstances, he is likely to have committed the act in issue.
14.Whilst accepting that it was not necessary to be able to prove that there was a striking pattern of similarity between the incidents in order for them to be characterised as having significant probative value, I take the court in GBF to have noted that although the sexual offences in Ford were unremarkable, the evidence in that case referred to a tendency on the part of the accused to do something unusual – that is, to indecently assault women who were asleep at his house after having attended a party at his house.
15.GBF is authority for the position that the greater the generality with which the tendency is stated, the less likely that evidence of the tendency has significant probative value in relation to a fact in issue.
16.In CGL, the Court of Appeal warned trial judges against relying upon apparent similarities to illustrate an underlying unity or common modus operandi or pattern of conduct where those features were such as would characterise almost any allegation of sexual offending against a young girl, or were so non-specific as to reveal nothing distinctive about any particular alleged act. In that case, the court described the purported similarities which it examined as being commonplace in cases of sexual offending.
17.At paragraph 40 of the judgment, the Court said this: ‘As a general rule, the greater the degree of specificity with which the similarities can be defined, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has significant probative value and, even more so, to demonstrate that its probative value substantially outweighs the very real prejudicial effect of evidence of this kind.’
18.The Court of Appeal in PNJ also warned trial judges against relying upon apparent similarities to illustrate an underlying unity or pattern of conduct where those similarities were an inevitable consequence of the relationship between the parties. In that case, the accused was a person in a position of authority at a Youth Training Centre and the offences occurred in the context of that relationship and at locations within the Youth Training Centre particular to that relationship.
19.The features relied upon by the prosecution as showing a sufficient similarity included the fact that the assaults were perpetrated by the accused in a position of authority over his victims. The victims were effectively captive in the facility. The victims were all of a similar age. The accused initiated the sexual contact and the offences took place during the same general period.
20.The Court, in considering those features, said this: ‘It is, in our view, a mistake to treat as relevant similarities for this purpose features of the alleged offending which reflect circumstances outside the accused’s control.’
21.The Court held that a number of the asserted similarities simply reflected the setting in which the offending occurred. Each of the complainants was detained in the centre. The limited age range of those eligible for such detention accounted for the similarity in ages, as counsel for the applicant pointed out. Likewise, the location of the alleged offending, either in the bedroom of the complainant or in the applicant’s bedroom, reflected the custodial setting.
22.These circumstances were contrasted with the similarities present in Papamitrou, where the accused was able to choose the various locations for the individual sexual acts and used a pretext to isolate girls from the company of others. The Court went on to say this:
To qualify as a relevant similarity in circumstances such as these, there must be something distinctive about the way in which the accused allegedly took advantage of the setting or context. In the present case, senior counsel for the Crown did not seek to identify any such distinctive behaviour and we were not persuaded that there was any.
23.The Court also described the allegations of sexual acts as being unremarkable and commonplace in sexual offending of the kind alleged. There being no distinctive feature, or pattern, or surrounding circumstances of a distinctive nature, the evidence could not be characterised as having significant probative value.
24.From these and other authorities to which I was referred, I accept the general propositions that the assessment of the strength of the tendency evidence would normally turn on the number of occasions of particular conduct relied on, the time gaps between them, the degree of specificity of the alleged tendency, the degree of similarity of conduct on the various occasions, the degree of similarity of the circumstances in which the conduct or behaviour took place, particularly if it is possible to establish a pattern of behaviour or modus operandi in those circumstances. These are all matters that I can take into account in determining the strength of any inference that can safely be drawn by a jury from the evidence sought to be led as to the tendency of an accused to think or act in a particular way.
25.I also accept from these authorities, that even if the conduct on the various occasions is not identical and not even particularly similar, the similarity of the surrounding circumstances may be such as to lead to the conclusion that the evidence has significant probative value. I recognise also that this assessment is a matter of fact to be determined on the facts of each case.
26.Having thus outlined the applicable legal principles as I see them, I will deal with each indictment in turn. I look first to the first indictment. As I have outlined, there are four complainants in this indictment. The Crown seeks to adduce tendency evidence to prove that the accused man had a tendency to commit sexual acts on his female relatives, commencing when they were very young children, aged around four to five years. The evidence is said to be relevant to prove the accused’s state of mind, that is that he had a sexual interest in his female relatives from the time they were very young children, aged about four to five years. I find that the evidence is relevant and the evidence sought to be led is properly to be described as tendency evidence.
27.I turn now to the question of whether the evidence has significant probative value. The prosecutor relies upon the fact that each of the complainants was a relative of the accused to whom he had access because of that relationship. She relies upon the fact that the abuse of each complainant began at an early age of four to five years and asks me to see the modus operandi or pattern of behaviour perpetrated by the accused as being a pattern of sexual abuse moving through the generations to target new victims as his earlier victims matured.
28.The prosecutor also emphasises the allegations of penile-vaginal intercourse on three of the complainants when those girls were at a very similar age, that is between four to five years. She says that this pattern of sexual abuse is capable of being characterised as a modus operandi. She says further that this modus operandi encompasses the charges in respect of all four complainants, even though the accused did not get the opportunity to carry out actual sexual penetration with the complainant, D.
29.In contrast, defence counsel submitted that the similarities relied upon fell far short of what would be required to establish that the evidence of one complainant has significant probative value in relation to the guilt of the accused on the charges involving the other complainants. He pointed out that the allegations made by each complainant were not connected in time, there were differences in location. Although the prosecutor had suggested to me that the locations were similar, in that they were all remote or isolated places, defence counsel pointed out that the sites ranged from a disused coal shed, to a public tip, to a bedroom and had no common connection. He points out that there are differences in whether or not other people were alleged to have been present at the time of the offences. He points out also that although some of the complainants allege overt acts of violence, others do not. He submitted that the similarities alleged were no more than the type of features you would find in almost any allegation of offending against young girls.
30.Further, he submitted that the features common to each of the girls arose out of the fact that the complainant was related to the accused. This was not a feature about which the accused had any control and, in counsel’s submission, was a neutral feature in the same way as the relationship between offender and victim was characterised in PNJ.
31.I accept that each of the similarities relied upon in the first indictment would, standing alone, be insufficient to be probative, let alone significantly probative of offending on another occasion. I am, however, persuaded that in combination these similarities do have significant probative value. They reveal a tendency on the part of the accused to have a sexual interest of a very specific sort in his very young female relatives, that is an interest in actual penile-vaginal penetration of very young female relatives between the ages of four and five years and a tendency to act upon that interest until those relatives matured in age and then to direct his attention to other younger female relatives.
32.In my view, it is the combination of all the elements put forward by the prosecutor which points to the existence of the tendency. I place particular importance on the allegation of full vaginal penetration with three of the complainants when they were aged between four and five years. I regard this as being sufficiently unusual behaviour when combined with the other elements to be capable of having significant probative value.
33.E alleges that between 1966 and 1967, when she was four years old, the accused threw her to the ground, penetrated her with his fingers and then penetrated her vagina with his penis. She describes other incidents of fondling and penile-vaginal penetration, which ceased when she was about eight years old in 1971.
34.The second complainant, F, alleges that she was first abused the year after the abuse to E ceased, that is in the year 1972. The similarity of her description to that of E is, in my view, striking. She says she was also aged between four and six years and she describes also full sexual penetration of her vagina by his penis on various dates between November of 1972 and November of 1974. She says this abuse ceased when she was ten or 11 years of age in 1979, that is two years older than what is alleged by E.
35.F’s younger sister, D, the third complainant, described one incident as having occurred about five years afterwards when D herself was about five years old. She alleges that the accused drove her to the Morwell tip and on the way stopped the car. He then started to rub her right thigh and inner leg. He then took her right hand and rubbed it up against his penis.
36.I recognise, in describing this allegation, that there is no allegation by D of full vaginal-penile penetration such as is alleged by E and F. However, it is my view that D’s evidence does have significant probative value when considered alongside the evidence of D and her sister, F, to the effect that F had continually warned D that the accused was dangerous and might attempt to sexually assault her. Having been thus warned, D’s evidence is that when the accused approached her in the way that I have described, she screamed out ‘No’ and slid away from him and the accused then desisted from any further conduct.
37.The jury in this trial would have to be warned not to speculate on what might have occurred had D not reacted as I have described. However, if the jury accepted D’s evidence, the jury could, in my view, use it to reason that the sexual assault on D formed part of the pattern of the accused’s interest in his young female relatives and that the tendency thus displayed by the accused on this occasion was thwarted by the forewarning of D by her older sister.
38.The final complainant gives evidence of offending some six years after the offending on D. The final complainant is the accused’s daughter, G. Once again, her evidence bears what I consider to be a striking similarity to the evidence of E and F. She says that in the time when she was aged between four and five years the accused, during a period of access, pushed her onto his bed and forced his penis into her vagina. G alleges three occasions of vaginal-penile penetration, ceasing in February 1992 when she told her mother about the abuse.
39.A jury might think that each individual allegation of full and repeated penile-vaginal penetration given by E, F and G implausible if described by only one complainant. Each allegation logically gains weight, in my opinion, when viewed in the light of similar accounts from the other two complainants of full vaginal penetration at the same age and in the light of the evidence of sexual assault by D at the same age.
40.In my view, this evidence of each complainant in the first indictment could be used by a jury to discern a pattern of behaviour, that is for the accused to seek out his very young female relatives between the ages of four and five years for the purpose of full sexual intercourse and to discern a particular state of mind in the accused, that is an interest in his very young female relatives between the age of four to five years for the purpose of full sexual intercourse with them.
41.The next question is whether the probative value of this evidence substantially outweighs the prejudicial effect to the accused. It is clear that this test is not meant simply because the tendency evidence tends to establish the guilt of the accused, what is required for exclusion of the evidence is consideration of whether the admission of the evidence would cause prejudice of a kind that could not be cured by appropriate direction.
42.There were no specific aspects of this prejudice put to me by defence counsel, however I do accept that the evidence is prejudicial to the accused to the extent that it tends to show that he had used his relationship to a relative to sexually molest her in a very similar way in relation to each charge. In my view, however, the probative value of this evidence does substantially outweigh the prejudicial effect to the accused.
43.The jury will of course need to be strongly instructed that they must be satisfied of this evidence beyond reasonable doubt before they may use it as supporting the evidence of the complainant in respect of any other count that the accused committed the act alleged. The giving of appropriate directions will, in my view, deal with the danger of any unfair prejudice arising. Having formed that view, there is no basis to exclude the evidence on the first indictment under ss 135 or 137 of the Evidence Act. It follows that the prosecution application in respect of the use of this evidence as tendency evidence in the first indictment succeeds.
44.I turn now to the application made in relation to the second indictment. As I have outlined, there are proposed to be four complainants in the second indictment. The prosecution says that the evidence of each of these complainants is cross admissible as tendency evidence. It is alleged that the evidence is relevant to the question of whether the conduct alleged in those charges occurred.
45.The prosecutor says that the evidence is relevant to prove that the accused had a particular state of mind, that is a sexual interest in young girls between the ages of five and nine and a preparedness to act upon that interest in opportunistic circumstances. The prosecution also says that the evidence is relevant to prove that he did in fact commit sexual acts with young girls aged between five and nine. Each of the complainants was of a similar age at the time of the alleged offending. The complainant, H, was six or seven years of age; the complainant, I, was six years of age; the complainant, J, was five to seven years of age and the complainant, K, was eight years of age.
46.The prosecution says that each of the girls came to be under the care of the accused in similar circumstances. H was playing in the back yard with the accused’s children when the accused approached her and required her to go inside the house on a pretext before abusing her. I attended the same party as the accused, in company with her mother. Whilst at the party, the accused volunteered to take I and her younger sister to the park and use that opportunity to molest her. J was staying with her mother at the accused’s home and playing on a swing in the back yard, when she was approached by the accused and taken by him into a garage on a pretext. K was a next door neighbour of the accused and the accused asked her mother if K could come to his house to see a bonfire. Once again, the allegation is that the accused led K away on a pretext and then abused her.
47.The prosecutor submitted that in respect of each of those four complainants, each was a young female child with whom the accused could claim to have an innocent and unremarkable social contact. In respect of each complainant, the complainant and the accused were initially present together with others. Further, in each case, the prosecution submitted that the accused took active steps to isolate the complainant from those other persons. It was submitted that his behaviour could be described as luring or coaxing the complainant away from the others by means of an innocent pretext.
48.The prosecutor submitted that the accused perpetrated a deception on each of those complainants to isolate them for the purposes of sexual offending. Thus the prosecutor characterised the offending as brazen or opportunistic in respect of each complainant. She suggested that in the second indictment the evidence was also capable of being characterised as a modus operandi encompassing the charges applicable to all four complainants.
49.In contrast, defence counsel points out that the allegation of each complainant are not connected in time or circumstance. He points out the location is different in each case, ranging from a local park, the accused’s bedroom, his back yard and his garage. He notes that there are differences in whether people were present at the time of the offending and extensive differences in the nature and quality of the alleged sexual acts.
50.His submission was that the alleged similarities were no more than the type of features that would be found in almost any allegation of offending against young girls. Thus he submitted that the similarities relied upon were of no probative value in establishing irrelevant tendencies. In other words, the similarities did not illustrate an underlying unity or common modus operandi or pattern of conduct sufficient to establish that the evidence of one complainant had significant probative value in relation to the evidence of others.
51.I do not accept that the evidence relied upon by the prosecution in the second indictment has significant probative values. The similarities relied upon appear to me to all by the hallmarks of general sexual abuse against young girls. In particular, it is unlikely that abuse of this sort would take place except in an isolated area. The way in which the accused came into contact with the girls is, in my view, completely different in each case and the locations at which the abuse occurred are also completely different in each case. The commonality of a pretext is also, in my view, a commonplace in sexual offending against a child. It is unlikely that the girls would have gone with him except under a pretext. I note the pretext was different in each case.
52.I note also that the actual offending alleged against each child is significantly different. In relation to H, it is of him exposing his penis while standing in front of her. I, by contrast, describes a lengthy episode of sexual offending, commencing with the accused putting his hands down her pyjama pants, then massaging her buttocks, rubbing her vagina and trying to put his finger inside her vagina. In relation to J, the conduct alleged is a kiss and in relation to K, the conduct alleged is the accused feeling her chest area and an attempt to kiss.
53.I am aware that it is not necessary that the offending conduct be similar in order for the tendency evidence to be proven. However, overall, in my view, the evidence shows no discernible pattern, or modus operandi, or any other underlying unity which a jury could use to discern a particular state of mind of the accused, or which would make it probably that he did each of the acts alleged in each charge on the indictment. It follows that the prosecution application to rely upon this evidence as tendency evidence in the second indictment is refused.
54.I turn now to the question of coincidence evidence. The prosecution has also filed coincidence notices in respect of each indictment. The contents of these notices are identical with the tendency notices, except that the conduct sought to be relied upon in each indictment is differently described.
55.Section 98(1) of the Evidence Act sets out the conditions for admissibility of coincidence evidence. For evidence to be admissible under that section, the similarities in the events or circumstances relied upon must be such as to make it improbable that the events occurred coincidentally.
56.Section 98(1) of the Evidence Act sets out the conditions for admissibility of coincidence evidence. For evidence to be admissible under that section, the similarities in the events or circumstances relied upon must be such as to make it improbable that the events occurred coincidentally.
57.Coincidence is thus not related to a person’s personality or disposition, but emphasises the occurrence of the events themselves. It requires me to assess the degree of improbability of independent witnesses making similar accusations against the accused. Thus, I need to consider whether the evidence gains probative force as coincidence evidence because of the objective improbability of such a series of events as are alleged occurring coincidentally.
58.In NAM v R, Maxwell P outlined the way in which the coincidence argument was developed in that case. In doing so he accepted a defence submission that the prosecution reliance on the relationship between the victims and the accused and the absence of their parents when the offending occurred, was no so distinctive as to support the evidence being used as coincidence evidence. He said that this was because:
Those matters are all aspects of the setting in which the offending occurred and of the pre-existing relationship between the alleged offender and the victims. It is plain enough that on the allegations it was that setting and that relationship and the fact that the children were left alone with the accused which provided the opportunity for the alleged offending to have occurred.
59.He went on to say:
If that were all that could be said in support of the coincidence notice, the notice would, in my opinion, be unsustainable for the reasons set out in paragraphs 19 and 20 of PNJ, but this case is quite different from PNJ because of the way in which the applicant took advantage of a situation which, I am assuming for present purposes, he did not create.
60.Maxwell P went on to analyse the questions which a judge should ask in considering whether evidence should be admitted as coincidence evidence. He identified three questions. The first was whether there was anything distinctive or recurrent about the evidence to be given concerning the actual offending. The second was whether there was anything distinctive or recurrent about the evidence to be given concerning the surrounding circumstances. The third was whether there was anything distinctive and recurrent about the evidence given about the way in which the accused was said to have taken advantage of the setting in which he and the victims found themselves. In the case before him, he identified important features of the case which he said were strikingly distinctive and held that the distinctiveness of those acts provided the requisite degree of similarity for their introduction as coincidence evidence.
61.I turn now to the first indictment. The prosecution, as I have said, has identified the evidence of each of the complainants upon which it relies as coincidence evidence in identical terms as it relied upon for tendency evidence and I will not go on to outline the way in which that evidence is put again.
62.In relation to the first indictment, it is my view that the focusing of the accused on several generations of his family, the age of four to five years and the distinctiveness of the sexual acts alleged against them, that is full penile-vaginal penetration at the age of between four or five years, is sufficient to make it improbable that the behaviour described by each separate complainant occurred coincidentally. Thus the application to introduce the evidence on the first indictment as coincident evidence is to be granted.
63.I turn now to the way in which the coincidence is put in relation to the second indictment. The similarities identified, once again, are the similar age of each complainant, the fact that the complainants could each be described as family friends, the fact that the offending took place in circumstances where the accused took steps to isolate each complainant, and the fact that during the offending the accused verbally reassured each victim, and that in two of the incidents he kissed the complainant before verbally reassuring her.
64.Defence counsel submitted that the purported similarities relied upon were not similarities at all, as there were significant differences, which I have already outlined, when considering this evidence from the standpoint of tendency. He submitted also that the circumstances relied upon were commonplace to all allegations of sexual assault against young children. Thus, he said that I could not be satisfied that it was improbable that the conduct complained of by each of the complainants occurred coincidentally. In other words, I could not be satisfied that it was improbable that they were unrelated episodes occurring by chance.
65.I have already expressed the view when considering this evidence in the second indictment from the standpoint of tendency, that the evidence is unremarkable in the context of sexual offending against young girls. When looking at the evidence from the prism of coincidence, I do not accept this evidence discloses behaviour of a type that it is improbable would have occurred coincidentally, or that it is improbable that the different complainants would give accounts having this degree of similarity unless the offence occurred.
66.There is, in my view, no distinctiveness in the accounts, the setting or the relationship, or the way in which the accused is said to have taken advantage of the setting so as to justify his submission as coincidence evidence. It could not be used as showing the improbability of independent witnesses making similar allegations, as the similarities relied upon are all generic hallmarks of this type of offending. It follows that the application to have this evidence on the second indictment admitted as coincidence evidence is refused.
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