Tamara Hunt (a pseudonym)[1] v The Queen

[2017] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0104

TAMARA HUNT (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WHELAN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2017
DATE OF JUDGMENT:	31 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 196
JUDGMENT APPEALED FROM:	DPP v [Hunt] (Ruling re coincidence evidence) (Unreported, County Court of Victoria, Judge Chettle, 26 April 2017)

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CRIMINAL LAW – Appeal – Application for leave to appeal against interlocutory ruling – Coincidence evidence – Applicant indicted on 36 charges of intentionally causing a bushfire – Whether reasonably open for trial judge to admit evidence – Whether coincidence evidence can be relied upon to prove applicant deliberately lit fires – Whether multiple charges can be heard together – Similarities of fires – ‘Significant probative value’ of evidence as a whole outweighs prejudicial effect – Leave refused – Evidence Act 2008 (Vic) ss 98, 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gibson	Victoria Legal Aid
For the Crown	Mr C B Boyce QC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. I have read in draft the reasons of Coghlan JA.  I agree that leave to appeal should be refused for the reasons he gives.

COGHLAN JA:

1. This is an application for leave to appeal against an interlocutory ruling made in the County Court of Victoria sitting at Wodonga. The application is made pursuant to s 295(2) of the Criminal Procedure Act 2009.  The learned trial judge has certified that the evidence, ‘if ruled inadmissible, would eliminate or substantially weaken the prosecution case.’

1. The proposed ground of appeal is:

1.That there was an error of law in admitting the coincidence evidence in that the evidence is not sufficiently probative and should be excluded.  Therefore all charges except 32, 35 and 36 should be severed and stayed.

1. The Court of Appeal has made it clear that an applicant may only succeed on an application of this kind if it be shown that it was not reasonably open to the trial judge to arrive at the conclusion he did.[2]  This application is to be considered accordingly.

   [2]KJM v The Queen[No 2] (2011) 33 VR 11; DAO v The Queen (2011) 81 NSWLR 568; House v The King (1936) 55 CLR 499.

1. The circumstances of the alleged offending may be stated briefly.

1. Between 3 February 2014 and 9 May 2014 there were 31 fires in or near Tatura.  Each of the fires was in grass on the edge of the road.  With a few exceptions, the fires were in an area proximate to rural Tatura, Mooroopna and Ardmona.  Then between 21 October 2014 and 2 January 2015 another five fires were lit.

1. Thirty-two of the fires were discovered and extinguished between 12:24 am and 4:55 am and the other four fires were between 8:00 pm and 12:00 am.

1. The actual cause of the fires has not been determined but no sign of accidental lighting of any of the fires has been discovered.

1. At about 3:42 am on 21 October 2014 police officers were driving across Ross Edwards Causeway, Mooroopna, when they observed a small fire in the adjacent bushland.  The police found the applicant, in her car, at the scene of the fire.  At first the applicant denied any connection with the fire but subsequently said the fire  started from a cigarette which she had discarded.  The expert evidence about that fire is that it was more likely that the fire had started from direct ignition than from a discarded cigarette or cigarette butt.

1. An extensive interview was conducted and the applicant denied any involvement in the other fires.  The applicant lived in Tatura and her boyfriend lived in Mooroopna, and most of the fires occurred at places which were on roads which could have been used when driving between the two addresses.

1. On 2 December 2014 the police installed a tracking device in the vehicle of the applicant.  On 30 December 2014 at 2:25 am and 2 January 2015 at 2:56 am the applicant’s vehicle was tracked as having stopped for about one minute at places where fires were discovered shortly afterwards.  The applicant was arrested on 2 January 2015.  The applicant was interviewed and denied lighting either of the fires or having been present in the location of either of the fires.

1. The applicant was subsequently indicted on 36 charges of intentionally causing a bushfire, those offences said to have occurred between 3 February 2014 and 2 January 2015.

1. The prosecution filed a notice to rely on coincidence evidence and tendency evidence pursuant to ss 98(1) and 97(1) of the Evidence Act 2008 respectively.  The second notice was not persisted with.

1. The coincidence notice sets out the basis of the application to adduce coincidence evidence.  

3.        The coincidence evidence will be adduced to prove that [Hunt] did a particular act in relation to the charges against her, namely light each of the 36 fires that is the subject of the charges.

4.        The coincidence alleged are the similarities of the 36 fires. The ‘Table of charges and fire similarities’ in the Opening particularises the fires for which evidence will be adduced, the date, time, place that each of the fires occurred and the similarities between them.

5.        The similarities alleged are the fires were lit­

(1)       when it was dark.

(2)       late at night or early morning.

(3)       in a proximate area of rural Tatura, Mooroopna, Ardmona.

(4) on verges of roads that the accused used to drive to and from her house in Tatura to that of her [Hunt’s] boyfriend [Named] in Mooroopna, except for one fire. The exception was a fire on 4/4/14 on (Winter Rd. Tatura). The prosecution allege that this was a fire lit by the accused to distract the authorities from a second fire 4 km. away that the accused lit about 25 minutes later (Ferguson Rd. Tatura).

(5) using dry vegetation on the road verges of country roads as fuel.

(6)       by direct ignition.

6.        In relation to the two fires on 4/4/14, in addition there are further similarities between them that makes it improbable that a person other than the accused lit the fires, namely-

(1) both fires were lit within approximately 25 minutes of each other.

(2) the fires were proximate – 4 km apart.

7.        A further coincidence not based on the similarities of the fires that make it improbable that a person other than the accused lit the fires is that no further fires occurred after 2/1/15 when the accused was in custody and/or did not have her vehicle as it was seized by police.

1. The exception in 5(4) is no longer relevant because the fire referred to was excluded in the exercise of his Honour’s discretion.

1. The matter came on for pre-trial argument in Wodonga on 30 March 2017.  Although the notice referred, in terms, to proving that the applicant lit each of the 36 fires, it is implicit that the evidence would also be used to establish that the fires were deliberately lit.

1. The application to rely upon coincidence evidence was made pursuant to s 98 of the Evidence Act 2008. That section relevantly provides:

98       The coincidence rule

(1)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—

(a)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

(b)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.

(2)       Subsection (1)(a) does not apply if—

(a)the evidence is adduced in accordance with any directions made by the court under section 100; or

(b)the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

1. And s 101 was relevant to the application. It relevantly provides:

101     Further 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.

1. After receiving written submissions and hearing oral argument the learned trial judge ruled that he would allow coincidence reasoning to be used going to the issue of both whether the fires were deliberately lit and who was responsible for lighting them.

1. His Honour ruled:

In the recent decision of Pearson (a pseudonym) v The Queen [2016] VSCA 341, the Court of Appeal said in relation to submissions made by the defence about proposed coincidence evidence:

‘In our view, each of the above submissions seeks impermissibly to disaggregate particular elements of the circumstantial case relating to coincidence. The question is not whether particular elements of the circumstances themselves demonstrate a probative similarity but whether the circumstances as a whole do so. The combination of circumstances may allow an inference to be drawn where consideration of a particular circumstance in isolation would not. Moreover, as the trial judge held, the combined effect of the coincidence evidence must be assessed in the light of the evidence upon which the prosecution relies as a whole.’

The Court referred to the judgment of Gibbs CJ and Mason J in Chamberlain v R (No 2) (1984) 153 CLR 521:

‘Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.  It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”.’[3]

[3]DPP v [Hunt] (Ruling re coincidence evidence) (Unreported, County Court of Victoria, Judge Chettle, 26 April 2017) [65]–[66].

1. His Honour said later in the ruling:

Any prejudicial effect resulting from the joinder and cross admissibility of charges can be met by appropriate anti-propensity inference direction and strict instructions as to the use that the jury can make of one charge when considering other charges and the purpose of coincidence reasoning.  In my view the probative value of the coincidence reasoning substantially outweighs any prejudicial effect.  Appropriate directions will nullify [any] improper prejudicial effect.  Obviously a strong anti-propensity warning and a non-substitution warning will be required.  I believe that a jury could properly draw inferences that the individual fires were deliberately lit and that the defendant lit them given six similarities listed by the prosecution and the other supporting evidence.  It is the united force of all the circumstantial evidence that leaves open those conclusions.  As to each charge the jury will need to be satisfied beyond reasonable doubt that such fire was deliberately lit and lit by the defendant.  It is the unified force of all the evidence that enables such an inference to be drawn – whether the jury draw such an inference on each separate charges is a matter for argument and for the jury.

I will allow the prosecution to try charges 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 23, 26, 27, 28, 29, 30, 32, 34, 35 and 36 together and rely upon the coincidence reasoning between these 27 charges.

I sever charges 7, 8, 19, 20, 22, 24, 25, 31 and 33.  Each fall outside the central area defined for the other charges.[4]

[4]Ibid [68]–[70].

1. It should be observed that charge 32 is an exception to charges ‘that fall within a confirmed geographical area …’[5]  The applicant, however, had conceded that charges 32, 35 and 36 could appropriately be heard together.  The sole issue in relation to charge 32 is whether or not the applicant lit the fire deliberately.

   [5]Ibid [67].

1. The applicant submitted that the circumstances of this case did not allow reasoning that the fires had been deliberately lit because there was no evidence as to how the fires occurred.  Further, it was submitted that there were insufficient similarities about the fires to say that they had been lit by the same person.

1. The applicant based that submission largely upon what had been said by this Court in Velkoski v The Queen.[6]  It was submitted that the type of ‘underlying unity’ or ‘pattern of conduct’ referred to in Velkoski could not be said to be present in this case.  The applicant sought to contrast this case with that of Quarrell v The Queen.[7]

   [6](2014) 45 VR 680. Where particular reference made to [164], [166], [169], [171] and [174].

   [7][2011] VSCA 125.

1. Although what was said by this Court in Velkoski was considered by the High Court in Hughes v The Queen,[8] which in turn was discussed in Bauer v The Queen [No 2],[9] it was not suggested that either of those cases were significant for present purposes.

   [8][2017] HCA 20.

   [9][2017] VSCA 176.

1. In both written submissions and oral argument the applicant came close to conceding that the evidence was sufficient to establish that the fires had been deliberately lit but submitted that the evidence fell short of establishing who the offender was.

1. The final matter raised by the applicant was, that because all the fires would be referred to in one trial there was a real risk that a jury might treat all the fires as a ‘job lot’.  In these circumstances, it was said, the probative value of the evidence could not substantially outweigh the prejudicial effect. 

1. The respondent submitted that it was open for the learned trial judge to rule as he did.  It was submitted that his Honour’s analysis of the facts was both detailed and careful and that his Honour had applied the correct legal principles.

1. In this case the applicant has somewhat underplayed the combined weight of all the circumstances.  The fact that there is no outstanding distinctive feature about the fires does not diminish the other connecting features of the case.  His Honour had to consider 36 fires.  Most of the fires had occurred in about three months, and nearly all of them in the early hours of the morning in a relatively confined geographical area.  None of the fires were found to be accidental and the experts, without being able to establish cause, were of the opinion that the fires had been deliberately lit.  All of the fires had been at the side of the road by igniting available materials.  His Honour did give great weight to the location of the fires which were in an area which was easily accessed along the path between the applicant’s home and that of her boyfriend’s house.  His Honour placed reliance on the applicant’s false denials. His Honour might have added that most of the fires occurred in the early hours of the morning and that the applicant admitted that she was often out driving to her boyfriend’s house in the early hours. 

1. In the exercise of his discretion, his Honour excluded all of the fires outside what he termed the ‘central’ locations.  It seems to me that that was a reasonable pragmatic decision, as with the possible exception of fire 19, a respectable case for inclusion of all of the fires can be made out.  It is important to note that the two sites at which the applicant was tracked are both within the ‘central’ area.

1. I mentioned in argument that fire 20 which appears in the list of excluded fires does appear to have occurred in the ‘central’ area.  The only difference about that fire is that it occurred at 11:10 pm which is somewhat earlier than the majority of other fires.  If it was placed in the excluded list in error, subject to the learned trial judge hearing from the parties, I do not see any reason why it should not be added to the other charges.

1. It does follow that the excluded fires provide little solace to the applicant because while they would fall into a slightly wider cast net, there is nothing about them which would demonstrate that a different arsonist was at work.

1. His Honour dealt with the question of prejudice clearly, directly and appropriately.

1. His Honour found that the similarities were such as to have significant probative value in the case and he was satisfied that the probative value of the evidence substantially outweighed any likely prejudicial effect upon the accused.

1. There is no reason to conclude that his Honour was in error and I would refuse leave to appeal.

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