The Queen v Naidu

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0276

THE QUEEN
THE QUEEN	Applicant
v
KAMLESHWAR NAIDU	Respondent

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JUDGES:	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2010
DATE OF JUDGMENT:	18 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 265
JUDGMENT APPEALED FROM:	[2010] VSC 356 (J Forrest J)

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Criminal law – Interlocutory appeal – Coincidence evidence ruled inadmissible pursuant to s 295(3)(a) Criminal Procedure Act 2009 (Vic) – Crown’s application for leave to appeal – Basis upon which leave may be granted – Whether judge below misapplied principle of ‘significant probative value’ – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Beale and Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr R Van de Wiel, QC and Ms L Ristivojevic	Doogue & O’Brien

ASHLEY JA:

A judge in the Trial Division ruled before trial that evidence which the Crown wished to adduce as coincidence evidence under s 98 of the Evidence Act2008 (Vic) (‘the Act’) did not, of itself or having regard to other evidence to be adduced, have significant probative value on the trial of Kamleshwar Naidu for the murder of his wife Jayanti (‘J’) on 16 June 2006. His Honour certified, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) that the evidence which he had ruled inadmissible would substantially weaken the Crown case. Now the Crown seeks leave to appeal his Honour’s ruling, and to prosecute the appeal if leave is granted.

In my opinion, leave to appeal should be refused.

The Crown case against Naidu

The case against Naidu is that he set fire to J in the garage of their Doveton home, using an accelerant. There is no doubt that she was set alight and that her death was a result of burns which she sustained. Clear also it is that Naidu and the couple’s infant daughter were at home at the relevant time, and that no one else was then present.

On Naidu’s account - always remembering that he will not be put at trial to prove anything - his wife committed suicide, she having both threatened and attempted to do so on earlier occasions.

Notice of intention to adduce coincidence evidence

The Crown gave notice under s 98(1)(a) of the Act of intention to introduce evidence that two or more events occurred to prove the following facts in issue: (1) that Naidu killed J; and (2), that he intended to kill her or cause her really serious injury. The evidence would be adduced to prove that he set fire to J with the pertinent intent.

The two events of which evidence was to be adduced, and ‘particulars of the date, time and place and the circumstances in which each of the events occurred, and the names of relevant witnesses’, were described as follows:

Table B – Particulars for each event

DESCRIPTION OF EVENT

DATE

TIME

PLACE

CIRCUMSTANCES

WITNESSES

1.

The accused’s first wife Reshma Naidu (nee Murthi) was set on fire

2.3.1999

Toko, Tavua, Fiji

Whilst Reshma, the accused and their infant daughter Karti (aged 18 months) were at home, Reshma was set on fire. As described in the Prosecution summary of opening, the fire occurred against a backdrop of long term domestic violence by the accused against Reshma (which included a threat to kill Reshma in February 99) & in circumstances where Reshma was planning to leave the accused.

The accused,

Sindu Raj, Ram Murthy, Shalendar Murthi, Suruj Kumari, Amit Prasad, Luisa Vunimasi, Samuela Nabenia, Salote Vauvau, Binesh Naidu,

2.

The deceased (the accused’s second wife) was set on fire

14.6.2006

Approx 7.45 pm

14A Jacinta Court, Doveton

Whilst Jayanti, the accused and their infant daughter, Taruni (aged 10 months) were at home, the deceased was set on fire. As described in the Summary of Prosecution Opening, the fire occurred against a backdrop of ongoing domestic violence by the accused against the deceased (including threats to kill her and threats to do what he’d done to his first wife) and in circumstances where Jayanti was planning to leave to the accused.

The accused, Abir Haidar, Ali Haidar, Avan Roffo, D. R. Grange, Kerry Anne Rappell, Timothy Gleeson, Keiran Rodgers, John Kelleher

Table C – Substance of the evidence of two or more events

EVENT	DESCRIPTION, DATE & LOCATION OF DOCUMENT
1.	The accused’s first wife Reshma Naidu (nee Murthi) was set on fire	Statements of the accused dated 2.3.99 (890), Raj dated 9.4.08 (879), Ram Murthy dated 9.4.08 (1452), Shalendar Murthi dated 14.4.08 (1477), Kumari dated 3.2.09 (1564), Prasad dated 23.2.09 (1582), Vunimasi dated 3.3.09 (1644), Nabenia dated 2.3.09 (1649), Vauvau dated 2.3.09 (1725), Binesh Naidu dated 2.3.09 (1817)
2.	The deceased (the accused’s second wife) was set on fire	Audio recording of 000 call made by accused (2008), audio &/or video Taped Records of Interview with the accused dated 14.6.06 (2907), 15.6.06 (see HUB, Vol 2, P721 for transcript) & 16. 6.06 (2034), Abir Haidar (842), Ali Haidar (848), Roffo (858), Grange (1033), Rappell (1848), Gleeson (1858), Rodgers (1844), Kelleher (583)

Thus it can be seen that the Crown sought to rely upon a coincidence of events – that is, that both J and Naidu’s first wife, Reshma (‘R’), were ‘set on fire’; and a coincidence of the circumstances in which those events occurred – that is, that they occurred (1) ‘against a backdrop of ongoing domestic violence against the deceased’, including threats to kill; (2) when J and R respectively were planning to leave Naidu; and (3), when only the deceased, Naidu and a child were present. The Notice of Coincidence was evidently premised upon the introduction into evidence of one account given by R to her father, in the period between her being burnt and her death, of the circumstances in which she had been burned. On that account, Naidu had some role in R being set on fire. Of this, more later.

Evidence to be adduced concerning J and Naidu

At [23]-[55] of his ruling given on 17 August 2010 the learned judge below set out, with his customary attention to detail, evidence that was to be adduced at Naidu’s trial for the murder of J bearing upon the nature of their relationship, the events of the day on which J had been set alight, and the aftermath of the incident. The prospective evidence included the following: (1) Naidu often assaulted J, to the point where in May 2006 she obtained an interim intervention order against him; (2) J told others, more than once, that she had attempted suicide; (3) on 9 June 2006, J booked a one-way ticket to Fiji for herself and her young daughter; (4) J told another person, after the tickets had been booked, that she had attempted suicide, by drug overdose and by hanging, and that she had been saved by Naidu; (5) On 14 June 2006, in the garage of the family home, J was badly burnt; (6) only J, Naidu and their child were then in the home; (7) an accelerant, probably a quite small quantity of petrol, was used; (8) subject to a qualification which I must later mention, no potential source of ignition was found in the garage; (9) Naidu reported the fire almost immediately, and sought help; (10) Naidu’s hands showed some evidence of blackening – attributable, on his account, to his attempts to douse the fire.

The learned judge noted that the Crown sought to rely heavily on circumstance numbered (8) above.

Evidence of coincidence sought to be introduced concerning R and Naidu

At [13]-[22], [62], [65], [72], [74], [76] and [79] in his ruling, his Honour recounted the state of the available evidence concerning R’s relationship with Naidu, her injury and death. So far as events preceding the fatal event were concerned, there was evidence available that Naidu had often assaulted R; and that she had reported to others that Naidu drank too much, saw other women, beat her, and threatened to kill her. So far as the events of the day upon which R was burned are concerned, there was evidence that (1) only R, Naidu and their child were then present; (2) R suffered severe burns to much of her body; (3) Naidu soon went to a neighbour’s house calling for help. His hands were observed to be burnt; (4) Naidu and the neighbour took R to hospital; (5) at the hospital where he had taken R, Naidu spoke with a police officer. He stated that R had poured kerosene on herself and set herself alight; (6) inspection of the home revealed a container, still containing some kerosene, on the floor of a washroom and a box of matches near the container. Part of a passage in the premises had been burnt; (7) in a statement made later that day, Naidu said that there had been an argument between them that morning. R had said that she was going to leave. He had replied that he would not stop her going, but that he would not give up their daughter. Later that morning, R had said that she was going to do something to herself. She had made such a threat on earlier occasions. On this occasion, she set fire to herself shortly after making the threat; (8) R told Constable Ramesh, according to a second-hand account, that she had poured the kerosene on herself and set it alight after a dispute with Naidu; (9) at some stage whilst she was in hospital, in answer to a question by her uncle whether she had done it to herself, R replied ‘yes’; (10) the Coroner reported to the Attorney-General that R had committed suicide; (11) on 9 April 2008 – that is, about 9 years after R’s death - her father made a statement in which he said, inter alia –
I asked what was wrong and she [a neighbour] told me Reshma had been burnt and was being taken from Tavua Hospital to Lautoka Hospital. I then went to the hospital with my wife.
When I got to the hospital I spoke to the nurse who told me Reshma had been burnt to 85% of her body. Kamleshwar was not at the hospital at the time.
I then [went] to see Reshma on my own. When I first walked in she pulled the sheet up to her chin and said I did it myself. I then asked why did you do this. She said I’m fed up with living with Kamleshwar.
I didn’t believe what Reshma was saying so I asked her to tell me the truth. I did not believe her as she is a very strong girl and would not do this.
When I asked her to tell me the truth she started to cry and told me daddy this is what happened. I didn’t do this myself. Kamleshwar came into the room where she was boiling the baby’s milk on the kerosene oven. Kamleshwar was drunk. Reshma said she was holding her daughter at the time. Reshma said Kamleshwar was arguing with her slapping her across the face and trying to grab the baby off her.
Reshma said that Kamleshwar then kicked the kerosene stove towards her and it caught fire. She said that when the flames started Kamleshwar grabbed the baby off her. Reshma said that prior to Kamleshwar kicking the stove she told him she was going to leave him.
I then asked if she told the police what Kamleshwar had done to her and she said no. I asked her why she had not told them she said that Kamleshwar told her if she told the police what he had done he would give their daughter a bad time and if she didn’t tell the police he would look after their daughter.
While she was telling me Reshma was very upset and crying, she loved her daughter very much and would do anything to protect her.
I then left the room and I was really angry but I did not tell anyone including my wife as Reshma had made me promise not to tell anyone.
The Crown case below

The learned judge described the way in which the Crown sought to advance its case this way:

56The prosecution case is that Mr Naidu deliberately doused Jayanti with petrol and then set her alight. This, it will contend, was motivated by the disintegration of their relationship, and Jayanti’a intention to leave for Fiji with Taruni. A number of representations described in the hearsay notice relate to the existence of a highly acrimonious relationship between Mr Naidu and Jayanti. By June 2006, the prosecution says that Mr Naidu had grown to hate his wife. There is an account of a previous attempt to kill her as well as a number of statements by her as to threats by Mr Naidu to kill her. The prosecution’s case is circumstantial and relies heavily on the fact that no source of ignition was found in the garage: ie the fire could only have been ignited by Mr Naidu and not by his wife.
57As part of the circumstantial evidence, the prosecution seeks to adduce evidence concerning Reshma’s death to enable the jury to engage in probability reasoning as permitted by the coincidence rule. Part of that evidence includes the statements made by Reshma to her father, Ram Murthy, and her brother, Shalendar Murthy, concerning Mr Naidu (representations 2 to 7 in the hearsay notice) and his violent behaviour towards Reshma. In particular it seeks to rely upon the statement made by Reshma to her father at the Lautoka Hospital as to the manner in which she was burnt.

Counsel for the Crown agreed that this was an accurate summation of the Crown’s position below. It underlines the observation which I made at [7].

Naidu’s position below

The position advanced for Naidu below was summarised by the learned judge this way:

59The defence denies that Mr Naidu deliberately set Jayanti alight. Mr Naidu says that Jayanti committed suicide. It is argued she had sought to do so on a number of occasions in the past; the most recent being on 12 June 2006 when, on her own account, she was saved by Mr Naidu. It is accepted that their relationship was at times acrimonious, but the defence points to the lack of any major disagreement on 14 June which would have triggered Mr Naidu to behave as the prosecution suggests he did. The next door neighbours heard no argument and Jayanti’s body revealed no defensive wounds.
60The defence contends that the evidence surrounding Reshma’s death is not probative of anything. All the evidence, it says, points to suicide, the conclusion reached by the investigating police and the coroner. In any event, counsel says its probative value is substantially outweighed by the prejudice occasioned by its admission…

It was not in debate that this accurately stated Naidu’s position.

The way in which the judge determined the application to introduce coincidence evidence

The judge first considered whether various representations which the Crown sought to introduce into evidence were tentatively admissible as exceptions to the hearsay rule under s 65(2)(b) and/or (c) of the Act. Those representations were as follows:[1]

[1]The page reference are to the depositions, and so far as is relevant correspond with page references in Table C of the Coincidence Evidence Notice.

DATE	SUBSTANCE OF REPRESENTATION	WITNESS WHO HEARD REPRESENTATION	Notes
Mid 1997	(2) About 8 months after Reshma and the accused married, Reshma called her father and complained that the accused was drinking, seeing other women, and beating her (1453)	Ram Murthy 1452
1997/8	(3) Reshma complained to her father from time to time that the accused was still drinking and beating her (1454)	Ram Murthy 1452
Late 98/early 99	(4) A couple of months after Reshma and the accused moved into a rented house in Toko in Tavua, Fiji, Reshma’s brother Shalendar visited her. He saw that she had big bruises on her face. She told him the accused had punched her during an argument about him seeing another woman.	Shalendar Murthi 1477
Feb-99	(5) (a) Reshma’s brother Shalendar called her and she said the accused had threatened to kill her (1478). (b) He went to see Reshma the same day and she had injuries (red marks on her face and marks/bruises on upper chest) which she said the accused inflicted by punching her.	Shalendar Murthi 1477
2.3.99	(6) Ram visited his daughter Reshma in Lautoka Hospital after she was burned in a fire earlier in the day. At first she said she set herself on fire. Eventually she told Ram that the accused was drunk, that she and the accused argued, that he slapped her, that she told the accused she was going to leave him, that he kicked the kerosene stove over which caught fire (she’d been boiling milk for the baby), that the accused grabbed the child, that she caught fire. She said she hadn’t told police the truth because the accused threatened to mistreat her daughter if she did. (1455)	Ram Murthy 1452	‘A relevant representation’, which is at odds was as follows: Abdul Rashid, Reshma’s uncle who lives in England, visited Reshma in hospital. He asked her if she did it to herself and she told him yes (1486). Police officer Raj also gives third hand hearsay (which the Prosecution submits is inadmissible) that Reshma told another police officer at the hospital that she had set herself alight (887)
Mar-99	(7) Reshma told Ram on one occasion when he visited Reshma in Lautoka Hospital, that she planned to leave the accused. (1457)	Ram Murthy 1452

Ram Murthy was R’s father, and Shalendar Murthi was her brother.

As the matter was presented to his Honour, the admissibility of the representations ultimately depended upon the view which he took of the application to introduce coincidence evidence. Subject to addressing that issue, he concluded that each of the representations, save for the last, fell within s 65(2)(c) of the Act and was thus admissible; whilst the last of them (the statement allegedly made by R to her father as to how she came to be burnt) fell within s 65(2)(b), and was admissible on that account.

Then his Honour turned to the question whether the evidence concerning R’s death – which included the relationship evidence – was admissible as coincidence evidence under s 98 of the Act.

By reference to the judgment of this Court in CGL v DPP,[2] his Honour described the necessary task as requiring consideration of up to four questions:
[2][2010] VSCA 26.

1. 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?
2. If so, would the evidence of those events and circumstances tend to prove that the accused:
(a) did the specified act; or
(b) had the specified state of mind
where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?
3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or ought to be adduced by the prosecution?
4. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?[3]

[3]Ibid, [22].

Then his Honour focused upon the first of those questions. He noted the circumstances relied upon by the Crown in the Coincidence Evidence Notice, including as they did both a background of long-term domestic discord and matters to do with the events of the days on which R and later J were burnt.

His Honour referred also to a document provided by the prosecutor which listed similarities and dissimilarities relating to the circumstances surrounding the deaths of R and J. It is convenient to set out the content of that document.

SIMILARITIES
A = the Accused: D = the Deceased
1. D was A’s wife.
2. D and A had only been married a couple of years.
3.D had been subject to domestic violence by A throughout the marriage.
4.D’s life had been threatened by A (and as recently as within a month of the fire.)

5.        D was contemplating leaving A (and taking their child with her).
6.        The fire happened at home.
7.        A was at home when it happened.
8.        The only other person at home was their infant child.

9.According to A, the child’s crying led to a disagreement between A & D.
10.A claimed to investigators that D had poured fuel over herself and set herself on fire.
11.A claimed that there was a disagreement between himself and D a short time before the fire.
12.A claimed that he was in another part of the house tending to the child when the fire happened.
13.A claimed that he went to D’s aid, found her still on fire and tried to put the fire out.

DISSIMILARITIES
14. The accelerant used – re Reshma, kerosene: re Jayanti, petrol/2 stroke.
15.D’s location in the house when she was set on fire – re Reshma, a bedroom re Jayanti the garage.

16.A’s location in the house when D was set on fire – re Reshma, a bedroom, re Jayanti, the lounge.
17.Time of day that fire occurred – re Reshma, in the morning, re Jayanti in the evening.

His Honour then said this:

103The critical issue at the trial will be whether Mr Naidu set fire to the deceased. If the jury is satisfied that he did, then the question of intent will, I think, become a non-issue – the answer being self-evident. It is important in this context to focus on the purpose for which the prosecution seeks to lead the evidence of Reshma’s death; as I perceive it, the intention is to negate Mr Naidu’s ‘innocent explanation’ of Jayanti’s death (namely that she committed suicide) and thus invite the jury to conclude that the only other explanation is the deliberate setting alight of Jayanti. The evidence of the circumstances of Reshma’s death, assists, it is argued, in reasoning that it is objectively improbable that Jayanti’s death was occasioned by her suicide, as maintained by Mr Naidu.

and
105It is not necessary for the prosecution to establish ‘striking similarities’ between the two incidents.[4] What is in issue at this stage is whether the similarities are such that the coincidence that both deaths occurred as a result of suicide is improbable. In my view the following matters (of which there is evidence a jury could act upon) point to an affirmative answer to this question:
·     Each spouse had been the subject of threats and beatings by Mr Naidu.
·     At the time of each sustaining their injuries the only other adult at home was Mr Naidu.
·     On each occasion Mr Naidu had the opportunity to inflict the injuries upon his respective spouses.
·     Each suffered burns which resulted in their deaths.
·     Each death was explained by Mr Naidu as a suicide.

[4]His Honour cited PNJ v Director of Public Prosecutions [2010] VSCA 88 [12], which in turn cited the reasons of Winneke P in the pre-Act case of R v Papamitrou (2004) 7 VR 375.

Despite certain statistics upon which Naidu relied concerning the reported incidence of self-immolation in Fiji,[5] the learned judge concluded that it was ‘improbable that it is a coincidence that both deaths occurred as a result of suicide’.[6]
[5]His Honour referred to the enquiry into R’s death, treated as being an instance of self-immolation, as ‘at best, rudimentary’.
[6]Reasons [109].

Then his Honour addressed the second question noted above – that is, whether the evidence that the identified events occurred, having regard to the similarities of the events and/or the circumstances in which they occurred, and upon an assumption that the evidence was accepted, would or might rationally play a role in the determination of a fact in issue in Naidu’s trial for the murder of J. His Honour cited the judgment of Simpson J in R v Mundine[7] in that connection. It was not in issue in this Court that her Honour described the correct approach to consideration of probative value for s 98(1)(b) purposes, notwithstanding that her remarks were directed to the application of s 137 of the Evidence Act.
[7](2008) 182 A Crim R 302.

His Honour rightly observed that –

112In determining whether there is a logical connection between the two deaths and Mr Naidu’s explanation, a court must look at all the surrounding facts and circumstances of the two events. It is not a case of examining merely the list of similarities and then concluding that lightning does not strike twice in the same spot. That form of reasoning is impermissible. There must be a coherent link between the one event and/or the circumstances and the factual matter in issue.

Having cited this passage in the judgment of Gibbs CJ in Perry v R:[8]
[8](1982) 150 CLR 580, 587, a case concerning similar fact evidence.
… where a number of poisonings have occurred, and the victims have all been associated with the accused person, the evidence of the other poisonings may be admissible to support the inference that the accused was responsible for the death in issue, because it would be contrary to ordinary experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in the circle of persons with whom the accused was associated (emphasis added).
His Honour reached these conclusions:
115Applying this reasoning there is, I think, a logical connection between the circumstances surrounding Jayanti’s death and that of Reshma. I have adverted to a number of matters relating to the improbability of coincidence. To that might be added Reshma’s account to her father at

the hospital which could, if accepted by a jury, satisfy the jury that Mr Naidu was responsible for her death.
and
116I am of the view that the similarities are such that a jury could logically use the evidence surrounding Reshma’s death to conclude that Mr Naidu was responsible for Jayanti’s death.

That took his Honour to the third question noted above - whether the evidence pertaining to R’s death had significant probative value in relation to J’s death. He pointed out that this required consideration whether, by itself or having regard to other evidence which the Crown would seek to adduce, the evidence would have value of that quality. As to what is meant by ‘significant’ in s 98(1)(b), his Honour referred to the conclusion of Hunt CJ at CL in R v Lockyer[9] that -

to some extent, the significance of the probative value of the … evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have is establishing that fact.

[9](1996) 89 A Crim R 457, 459. His Honour’s observations addressed a comparable provision in s 97 of the Act. Nothing turns on it.

His Honour noted that what had been said by Hunt CJ at CL was picked up by Simpson J in R v Zhang,[10] where her Honour said:

(v)the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; second (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted. (emphasis added).

[10](2005) 227 ALR 311, [139].

Having then referred to matters identified by the author of Odgers, Uniform Evidence Law[11] as bearing upon assessment of ‘significant probative value’, his Honour described his task as follows:
The exercise, therefore, is to gauge, by reference to all the evidence, the strength of the coincidence evidence; in particular whether it is possible to be satisfied that the jury would assign significant probative value to the evidence surrounding the circumstances of Reshma’s death.[12]
[11](8^th ed), Lawbook Co, para 1.3.6680.
[12]Reasons [122].
Against that background of principle, his Honour concluded that the evidence of R’s death was not significantly probative in determining the circumstances of J’s death, and particularly the actions of Naidu in relation to that death. He stated that the following matters were relevant to this conclusion:

(a)The substantial inconsistencies in the evidence as to Reshma’s death. There exists a real prospect that Reshma committed suicide. This is Mr Naidu’s account and it is corroborated by Reshma’s statement to DC Ramesh, to her uncle Abdul Rashid and her initial account to her father, Ram Murthy, at the hospital.
(b)Reshma’s account to her father at the hospital is tinged with uncertainty as to Mr Naidu’s role in her death. On that version, in the course of an argument (which included physical violence towards her), Mr Naidu ‘kicked the kerosene stove towards her and it caught fire.’ Whilst a jury could, I think, conclude, that the action was deliberate, it could not, on this evidence alone, reason that he intended to kill or seriously injury Reshma (notwithstanding a previous threat to kill and Reshma’s threat to leave Mr Naidu). As Mr Kelleher, the Forensic Scientist, accurately noted ‘the story is very basic.’ He examined a similar stove and thought that the scenario described by Reshma seemed ‘rather unlikely.’ It might be open to a jury to conclude that Mr Naidu’s actions constituted negligent act manslaughter, however given the lack of any corroboration of Reshma’s account, that prospect is remote. Rather, at its highest, the evidence of Reshma establishes that Mr Naidu had a responsibility for her death.
(c)Accepting Reshma’s account there is a significant difference between the circumstances surrounding her injuries and the prosecution’s case in relation to the infliction of Jayanti’s injuries.
(d)The lack of forensic evidence which may assist in determining the accuracy of Reshma’s account, or, for that matter, whether Mr Naidu was implicated at all in her death. As Mr Martin, an investigating detective, noted in an email to Mr Kelleher:
Basically no investigation was carried out by Fijian police into [Mr Naidu’s] first wife’s injuries at the time. No photographs – sketches – minimal notes. Also, whilst in Fiji we spoke with the attending pathologist who was unable to assist further. The post-mortem report is very brief to say the least. [No photos/notes and nothing to assist us with burn patterns etc].

(e)If the evidence of Reshma’s death is admissible, it will form part of the circumstantial case of the prosecution, and would normally involve a direction in accordance with Shepherd v R. However, given its significance in the circumstantial case and the risks posed by the use of coincidence evidence, I think it would be necessary to give a direction[13] to the jury in the following terms: to act on the evidence surrounding Reshma’s death, it would need to be satisfied beyond reasonable doubt that Mr Naidu was responsible for her death in the sense that it was his actions that caused her death. In that context, given the vagueness and inconsistencies in the evidence and the prospect that Reshma’s death was indeed the result of suicide, there is no realistic prospect of such a finding being made.[14]

and
In summary, whilst there are a number of aspects of the two deaths of sufficient similarity to permit probability reasoning, once the evidence is examined closely, the case implicating Mr Naidu in the death of Reshma essentially relies upon suspicion and speculation as to what role, if any, he played in causing her death. That being so, the evidence is not of significant probative value and is not admissible.[15]
[13]See R v Sadler (2008) 20 VR 69 [65].
[14]Reasons [123], citations omitted.
[15]Reasons [124].

In the event, his Honour did not need to consider the fourth question noted above – in substance, the question whether the evidence should not be used against Naidu because its probative value did not outweigh any prejudicial effect it may have upon him.[16]
[16]See s 101(2) of the Act.

Submissions in this Court

As will become clear, it is necessary to pay close attention to the way in which the Crown, particularly, developed its submissions in this Court. Its first written submission was as follows:

1.The applicant relies on coincidence not tendency reasoning. Consequently, it is not necessary for the applicant to eliminate the possibility that Reshma committed suicide, a point not addressed in the learned trial judge’s reasons. Indeed, the submissions below will assume that Reshma committed suicide. A reasonable jury could find that it is improbable that Jayanti also took her life in the same manner & incriminating evidence, makes it more likely that the accused set fire to Jayanti. On this analysis, the accused drew on his experience in relation to Reshma’s suicide to concoct a story to cover up his crime against Jayanti. The evidence of what Reshma said to her father about the accused causing her to catch fire can be excluded, thus substantially diminishing, if not eliminating, any risk of unfair prejudice. In these circumstances, there is no reason to doubt the likely efficacy of strong directions.[17]

[17]Footnote omitted.

The Crown next submitted in writing that other evidence was relevant to determining whether the coincidence evidence had significant probative value. This submission identified the following circumstances:

a.The accused was at home at the time Jayanti was burnt. He had the opportunity to set her on fire. A lighter was found in his car. Matches were found in a hallway cupboard;
b.Investigators were on the scene very soon after the fire. There is no dispute that the fire occurred in the garage. A thorough examination of the garage was conducted by an experienced chemist (Kelleher) who searched especially for a source of ignition. Jayanti, who according to the accused was smoking a cigarette in the garage just prior to the fire, commonly used a disposable lighter. No source of ignition was found;
c.There is ample evidence from which to draw the inference that, by the time of the fire, the accused had grown to hate his wife. She had angered & shamed him by having an abortion against his wishes and making a complaint to the police and the courts about his violence towards her, something he told others a wife would not do back in Fiji;
d.Jayanti was planning to leave the accused and take their child, Turani, with her. Tickets for a flight to Fiji had been purchased on 13.6.06 and she and her child were due to fly out on 24.6.06. In Fiji, they were going to reside with Jayanti’s father who was very supportive;
e.Turani was only 10 months old at the time and Jayanti was a loving mother and the primary caregiver, a powerful reason for her to get on the plane rather than kill herself;
f.On the accused’s account, there was no major disagreement between him and Jayanti which might cause her to set herself on fire. On the evening in question, she criticized him for not comforting the baby who was crying and he accepted that criticism. He mildly criticized her for smoking in the garage and she responded by telling him that she did not have to do what he wanted;
g.On the accused’s account, he claimed he burnt his arms and hands trying to put out the fire that killed Jayanti (as had happened with Reshma) but investigators saw no sign of burns to the accused, save for singeing of his hair.[18]

[18]Footnote omitted.

According to the Crown’s further submission, the coincidence of a second wife ‘committing suicide in a manner and in circumstances which duplicated what happened to his first wife’ would ‘strike most people as extraordinary’, even without considering the other evidence. But when considered together with the other evidence, only an unreasonable jury could regard it as unimportant. The judge had erred by not considering the coincidence evidence in context. He had wrongly focused only upon whether the evidence would enable a jury to eliminate the possibility of R having committed suicide.

In oral submissions, counsel stated that he did not resile from the case advanced before the judge below. That case, see [11], was considerably different to the first written submission advanced in this Court which I have noted at [30]. Accepting the oral submission at face value, the Crown was in essence contending that there were two alternative factual explanations (I will call them hypotheses) as to the circumstances in which R came to be burnt; and that, on either hypothesis, s 98(1) of the Act was satisfied. That was so although the Coincidence Evidence Notice gave no hint of the version of events raised by the first written submission.

According to counsel’s further submission, the case raised by the first written submission in this Court had been raised below. That is, a coincidence argument founded upon alternative hypotheses was not new. Counsel referred to a passage in the transcript where he is recorded as having said:

… the jury could reason this, we can’t be satisfied that he has either murdered, or is guilty of homicide, manslaughter, in relation to [R], but there is such a similarity in relation to the claims he has made as to what happened to the two women, that it’s improbable that both his wives were suicided, and that improbability, combined with the absence of a source of ignition in the garage, … plus the strength of the relationship evidence revealing, it’s submitted, a hatred, a loathing. …

The jury could use all of that to reason that we are satisfied that he set her alight.

Pausing for a moment, these matters may be noticed. In the passage just cited, counsel did not ask the judge to assume, for the purposes of his ruling, that R had committed suicide. Nor did he identify the way in which, on the argument advanced in this Court, there could then be a coincidence of circumstances. Nor, again, did he explain how any and which of the similar circumstances relied upon in the Coincidence Evidence Notice with respect to R’s death could be pertinent if R had committed suicide. In those circumstances, it is quite understandable that the learned judge did not address any of those matters in his ruling. Finally, what counsel did do was acknowledge that the state of the available evidence was such that a jury might not be satisfied that Naidu had played any role in R’s death.

I return to the submissions advanced in this Court. It was never the Crown case, counsel stated, that Naidu had murdered both his wives. Rather, on one version of events, Naidu had been ‘involved’ in R’s death – the nature of the involvement apparently ranging from death by accident, to manslaughter by gross negligence, to (possibly) death by unlawful and dangerous act.

The concept of ‘involvement’, I digress to say, was mentioned by Brennan J (as his Honour then was) in Perry.[19] It traced back to the judgment of Evatt J in Martin v Osborne.[20] What is comprehended by involvement must ultimately turn on the rationale for admitting coincidence evidence which is stated in s 98 of the Act.
[19]Perry v The Queen (1982) 150 CLR 580, 611-612.
[20](1936) 55 CLR 367, 384-385.

Pressed as to the significance, for coincidence evidence purposes, of an assumed situation in which R had committed suicide, Counsel submitted that a jury might conclude that the incident had given Naidu the idea, or a model, of how to murder J. That submission led on to counsel unequivocally inviting the Court to approach R’s death as a suicide.

Counsel submitted, in answer to the Court’s question, that matters relied upon by the Crown in the Coincidence Evidence Notice to show similarities in the events, and the circumstances in which they occurred, could have that character even if it was assumed that R’s death was a suicide. In answer to a further question, he submitted that, assuming R’s suicide, it could still be relevant that at the time when both women were burnt Naidu had been at home.

I cannot accept either of those submissions. The two events would lack a common (and in this case, critical) distinctive and unusual feature if R suicided; and the allegedly similar circumstances attending the two events would be meaningless if the events themselves lacked such commonality. It is unnecessary to go further and decide whether, and if so to what extent, other descriptions which have often been used at common law when explaining what is required in order that evidence give the lie to events having occurred coincidentally – descriptions such as ‘underlying unity’, common ‘modus operandi’, ‘pattern of conduct’, and ‘unusual features’ – are useful in the present statutory environment.

Counsel’s further oral submission was that the learned judge had erred in his approach to evaluation of the coincidence evidence – see the passage cited at [28]. His Honour’s approach, counsel argued, had been at odds with the decision of this Court in JLS v R,[21] which had endorsed the approach of Simpson J in Mundine. His Honour had stated the relevant principle correctly; but he had misapplied it, because he had trespassed into the province of the jury. He had addressed the ‘other evidence’ which was to be adduced, but only to identify problems with it. He had concentrated upon an irrelevant evaluation of the reliability of the coincidence evidence, this undermining his consideration of ‘significant probative value’.
[21][2010] VSCA 209 [18], [26] (Redlich JA).

Counsel was asked about the application of the concept of taking the evidence ‘at its highest’ (a concept borrowed from the exercise of the Christie discretion at

common law[22]) when, with respect to the asserted coincidence evidence, the Crown advanced a preferred hypothesis that R had committed suicide and an alternative hypothesis that Naidu had been involved, in some way, in R’s death; and when R had made conflicting statements to different people, and even (on his account) to her father, about how she had come to be burnt. Counsel’s reply was that the evidence at its highest was R’s second reported account to her father. So to say, of course, logically disposed of the position adopted by the Crown in its first written submission, and left but one hypothesis. But that was not the way in which the Crown in fact pursued its application for leave to appeal.
[22]See R v Shamouil (2006) 66 NSWLR 228, 236 [49]-[51] (Spigelman CJ), his Honour explaining the rationale for so approaching the question of the admissibility of coincidence evidence at 237-238 [60]-[65]. The concept of taking the evidence at its highest emerged, understandably, in the context of the discretions to exclude created by ss101(2) and 137 of the Act. But there is no reason why the evidence should be differently viewed when considering it in the context of s 98(1)(b). That was the gist of what Spigelman CJ said in Shamouil at [65].

In the context of taking the evidence ‘at its highest’, it is convenient to mention two additional matters. Each of them was discussed with counsel for the Crown. First, there was the opinion expressed by the Crown’s relevant expert witness, in a report which was otherwise replete with speculation, that the mechanism of R having been set on fire in the way which she allegedly described to her father seemed ‘rather unlikely’. Second, there were the facts that (1) Naidu had told police that J had been smoking shortly before she caught alight; and (2) that a cigarette butt had been found in the garage. So it could not be said – by contrast with matter (8)[23] relied upon by the Crown in support of its case that Naidu murdered J – that no potential source of ignition was found in the garage where J caught alight, albeit that the Crown’s expert described the butt as having been a very unlikely cause of the fire.
[23]See [8] above.

Further in the context of taking the evidence ‘at its highest’, considerable attention was paid in argument to paragraph (e) of the passage from the judge’s reasons excerpted at [28].[24] Counsel agreed that evidence of R’s death, and of circumstances which the Crown would seek to elicit in that connection, would form part of a ‘strands in the cable’ circumstantial case against Naidu. I understood him to agree also that it would be necessary for the trial judge to give a direction that the jury must be satisfied to the criminal standard that Naidu had been ‘involved’ in R’s death before it could act upon that evidence. But, he submitted, the judge had been wrong to conclude that there was no realistic prospect of the jury being so satisfied; because that had involved an impermissible assessment of the reliability of the (father’s) evidence. The submission raised a question as to the extent to which there are limits to evidence being taken ‘at its highest’, a matter adverted to by Simpson J, in a different context, in R v Cook.[25]
[24]Part of the [123] of the judge’s reasons.
[25][2004] NSWCCA 52 [43]; cited by Spigelman CJ in Shamouil (2006) 66NSWLR 228, 236-237 {56].

Counsel was questioned by the Court as to the way in which the jury might address the evidence of the deaths of R and J. Could it consider the evidence ‘together’? If so, could it use evidence pertaining to J’s death to tentatively reach a conclusion that Naidu had intentionally set J on fire with murderous intent, in turn use that conclusion to assist a conclusion that Naidu had set R alight, and then use that conclusion to reinforce its tentative conclusion that he had intentionally set fire to J? Would not such reasoning involve impermissible circularity – a matter addressed in Perry?[26] To my mind, counsel did not clearly answer any of those questions.
[26]Perry v The Queen (1982) 150 CLR 580, 589-590 (Gibbs CJ), 594 (Murphy J), 612 (Brennan J).

Two other aspects of the Crown’s submissions must be mentioned. First, the Court raised the question what it should do if it concluded that the learned judge had not misapplied principle in deciding whether the proposed coincidence evidence had significant probative value? Should it enter upon any reconsideration of the material? If it did so, should it make its own evaluation of the evidence? Alternatively, should it treat the judge’s conclusion as analogous to a discretionary decision, and subject it to a House v The King[27] analysis? Given the opportunity to make additional written submissions, both parties contended that, if the Court was to enter upon a factual investigation, then the latter approach was the correct one. As will be seen, I have concluded that no question of reconsideration, by whatever method, in truth arose on this appeal.
[27](1936) 55 CLR 499.

Second, a question arose whether, if the Court considered that the proposed evidence did have ‘significant probative value’, it should go on to consider the application of s 101(2) of the Act. Counsel for Naidu argued that we should not do so, the s 101(2) issue being no part of the interlocutory decision the subject of the application for leave to appeal. The position of counsel for the Crown was, as I understand it, less clear. In my view, the submission for Naidu was correct. But strictly, as will be seen, the question need not be answered.

Resolution of the application and the appeal

It is not in dispute that the learned judge was correct to certify under s 295(3)(a) of the Criminal Procedure Act2009, this enabling the Crown to bring an application for leave to appeal against his ruling. But it does not automatically follow that leave should be granted. Section 297(1) provides that this Court may give leave to appeal only if it is satisfied that it is in the interests of justice to do so having regard to two specified matters and one catch-all. Even if, to take an example, determination of the appeal against the interlocutory decision would render the trial unnecessary - vide s 297(1)(b)(i) – it could not be in the interests of justice to grant leave to appeal if the Court considered that the decision the subject of the proposed appeal was evidently correct.[28] In such a case the Court would rightly exercise its discretion to refuse leave.
[28]McDonald v DPP [2010] VSCA 45 [13] (Ashley JA).

In other situations, also, in a developing jurisprudence, the Court has refused leave: R v DG; DG v R;[29] DPP v BCR.[30] Compare GP v R,[31] where the court granted leave, commenting that the decision of a judge not to recuse himself or herself ought be regarded as being of sufficient importance to a trial to justify it being determined on an interlocutory appeal, ‘assuming always that the application to recuse is one serious in its content, rather than merely frivolous’ (my emphasis).[32]
[29][2010] VSCA 173.
[30][2010] VSCA 229.
[31][2010] VSCA 142.
[32]Ibid [51].

Beyond the circumstances thus far considered by the cases, in my view the Court is entitled to examine the course which the matter took below in deciding whether leave should be granted. It does not follow, because an argument was not raised below, that it might not be worthy of being entertained on appeal. But if the applicant seeks to rely upon an argument inexplicably not put below – a fortiori if the argument would not advance the applicant’s cause – I see no reason why the interests of justice should require that the applicant be able to ventilate it on appeal.

Finally, I should note that it is not possible to directly extrapolate the New South Wales learning on grant of leave to the Victorian situation. That is because (1) the Director of Public Prosecutions has a right of appeal in New South Wales, whereas other parties do not; and (2) other parties may appeal either by leave or else certification by the trial judge/magistrate that the matter is a proper one for determination on appeal. Concern has been expressed that too ready certification frustrates application of the leave to appeal test: Pellegrino v DPP.[33] Given the legislative differences, however, the approach to grant of leave in a particular case taken by Gleeson CJ in R v Matovski[34] was referred to with apparent approval in R v Li.[35] That approach focused upon whether there was any apparent error of law or discretionary principle in the reasons for the decision which was the subject of the application for leave to appeal.
[33][2008] NSWCCA 17.
[34](1989) 15 NSWLR 720, 723.
[35][2002] NSWCCA 215 [3] (Burchett AJ).

In the present case, having regard, inter alia, to the course which the hearing took in this Court, I am quite unpersuaded that the interests of justice call for a grant of leave. That is so for the following reasons.

First, counsel’s submission that the Crown’s preferred hypothesis in this Court had been advanced below – see [34] - should not be accepted, having regard to the matters to which I have referred at [35]. There is no reason why the preferred hypothesis could not have been advanced below. As I have said, this Court should not countenance being made the recipient, on applications for leave to appeal from interlocutory decisions, of new arguments which were inexplicably not raised below.

Second, the asserted coincidence evidence was incapable, in my opinion, of having that characteristic upon the Crown’s preferred hypothesis – that is, the hypothesis exposed by the first written submission and repeated in oral argument. Assuming that R committed suicide, two events could still be identified – that is, that R and J had caught alight. But once Naidu was exculpated from any role in R’s death, the asserted similarities in the relationship between him and his wives in the periods of marriage, and the asserted similarities as to events on the two particular days, were not such as could render the events improbably coincidental. What could be the possible significance of any of the 13 similarities identified by Counsel for the Crown below – see [15] – once accept that R committed suicide?

In this Court, counsel submitted, as I have noted, that Naidu got the idea of killing J from R having suicided by fire, that he modelled his murder of J on the circumstances of R’s suicide. But that would not be coincidence reasoning at all, and no other basis for its admissibility was advanced before us. It could not make relevant the many circumstances said to similarly attend both deaths.

Thus, in my opinion, if the Crown’s preferred hypothesis had been put below, and it had been contended that the evidence was admissible as coincidence evidence by reference to that hypothesis, the contention should have been rejected before the judge ever got to the issue of ‘significant probative value’. A decision to that effect would have been so obviously correct as to require refusal of leave to appeal.

Third, in this Court the Crown essayed different hypotheses as to the circumstances in which R caught alight. Either she committed suicide, or else Naidu was ‘involved’ in her death in a fashion which embraced anything from accident to unlawful and dangerous act manslaughter. In that uncertain context, I am not persuaded that it is possible to extract any distinctive and unusual feature[36] from the events and circumstances relied upon by the Crown. Certainly, Naidu’s two wives, J and R, died from fuel-caused burns; and at first glance that would be distinctive and unusual, and would tend against a non-homicidal explanation for J’s death. But the Crown’s own alternative hypotheses as to the circumstances of R’s death show, in my view, that its reliance upon the events as contraindicating an innocent explanation for J’s death, still less the allegedly similar circumstances, do not withstand scrutiny.
[36]It is unnecessary to consider the relevance and possible application of any of the other descriptive terms mentioned at [40].

Fourth, the different hypotheses advanced by the Crown make it extremely difficult, in my opinion, to give a meaning to taking the evidence ‘at its highest’ such as would simply focus upon assumed acceptance of R’s second version of events as recounted by her father. Moreover, even if that could be done, what allegedly similar circumstances would attach? If the ‘involvement’ was an accidental setting of R on fire, I should think that the circumstances of the marriage between R and Naidu, together with most of the circumstances to do with the day on which R caught alight, would be irrelevant. If the involvement involved a criminal act short of murder, the answer might be somewhat different.

Thus, had the alternative hypotheses advanced in this Court been advanced below, I consider that the learned judge should have answered either the first, or at least the second question framed by CGL,[37] in the negative. A decision to that effect would have been such that, in my opinion, leave to appeal ought to have been refused.
[37]See [17] above.

Fifth, it is necessary to consider the submission noted at [41], which had as its starting point the alternative hypothesis – that is, the hypothesis relied upon below. The submission was that the learned judge below misapplied JLS and Mundine in failing to take the coincidence evidence ‘at its highest’ – in part because he embarked upon a reliability investigation, and in part because he did not have proper regard to ‘other evidence’ to be adduced by the Crown.

There is an initial problem with the submission. It was founded upon only one of the hypotheses advanced in this Court. For that reason alone, I would have difficulty in extracting from it a conclusion that the application should be granted and the appeal allowed.

But beyond that, in my opinion the submission lacked force. It is true that para (a) of his Honour’s analysis – see [28] – identified the fact that there were substantial inconsistencies in the evidence as to R’s death. But that was really the precursor to his Honour’s consideration of the highpoint of the evidence in that connection – the second account given to R’s father.

Next, it is simply the fact that within that account there resided a number on uncertainties.It would be utterly unrealistic to take the account in its uncertain form, to extract from it one interpretation which was neither more nor less likely than another, and proclaim that ‘the evidence at its highest’. Having regard to the evidence of the Crown’s expert, the second account said to have been given to R’s father was improbably correct, as his Honour noted. But he did not, for that reason, dismiss the account.

I turn to para (c) of his Honour’s analysis. It did no more than state an incontrovertible fact. That fact did bear upon the similarities relied on by the Crown; and might have been paid more attention earlier in his Honour’s analysis.

Paragraph (d), again, did no more than state the fact that the available forensic evidence afforded no indication whether R’s second account to her father – with its inherent uncertainties – could be supported.It is true that it pointed up a weakness in the Crown case insofar as the Crown sought to show that Naidu had been involved in some way in R’s death. But the use which his Honour made of the fact really emerges in paragraph (e)

For the most part, the content of paragraph (e) was uncontroversial. At [44], I identified the point which the Crown put in issue. His Honour’s conclusion did involve a value judgment – a judgment unaffected by the possible operation of s 101(2) of the Act. But assuming that the father’s evidence went in, the judge still had to conduct a trial. He determined, and no one gainsaid it, that he would need to give a criminal standard direction with respect to the proposed evidence. It was one thing to say that the father’s evidence, taken at its highest, was capable of leading to a conclusion that Naidu had some involvement in R’s death. The nature of that involvement – whether homicide or accident – was another thing. But even if the particular evidence, viewed discretely, might possibly have enabled a conclusion that this had been a homicide, it seems to me very clear (as it did to the judge) that it could not have done so to the criminal standard. Moreover, there was other relevant evidence, both lay and technical, which bore upon the question whether R’s death was a homicide. Given the direction which the judge foreshadowed, I think it is inevitable, in that evidentiary context, that he came to the conclusion which he did. In the particular circumstances, I consider that his conclusion did not controvert the requirement that proposed coincidence evidence be taken at its highest when considering its probative value.

Sixth, the gist of this appeal, so far as it identified error by the learned judge, was that his Honour had misapplied principle. The suggested error was not that he had identified principle correctly, applied it correctly, but got to the wrong result. In the event, having concluded that his Honour did not commit the error alleged, there is, on reflection, no occasion to revisit his Honour’s conclusions – whether by

consideration afresh, or by application of a House v The King[38] approach.[39] I only add this. Had it been appropriate to revisit the facts, and regardless which approach be apt, I would have upheld his Honour’s conclusions.

[38](1936) 55 CLR 499.

[39]It is thus unnecessary to consider and pass upon the very useful additional written submissions which counsel provided. The issue is, in my opinion, a live one. There are conflicting decisions in the context of the New South Wales interlocutory appeal procedure, and decisions of the Federal Court of Australia and the Tasmanian Court of Criminal Appeal are at odds. The issue has never been fully argued in this Court, although a concession made by the Crown was endorsed by the Court in PNJ v R [2010] VSCA 88 [16], noted by Redlich JA in JLS v R [2010] VSCA 209 [34].

NEAVE JA:

I agree with Ashley JA, for the reasons that he gives, that the Crown’s application for leave to appeal should be refused. I wish only to make some brief observations on three matters.

First, evidence that Reshma committed suicide by setting herself on fire, might have been admissible as circumstantial evidence, that the accused used his experience of his first wife’s death, in order to devise a method of killing Jayanti, which would not be detected as murder. As Ashley JA points out in paragraph [55] of his reasons, use of evidence relating to Reshma’s death for that purpose, would not have required satisfaction of the requirements for admission of coincidence evidence.

In those circumstances the Crown would have to show that the evidence was relevant to a fact in issue,[40] that is, that it could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[41] The Crown would not have to show that the evidence had ‘significant probative value,’ because it would not be relying on the evidence as coincidence evidence. However his Honour might then have been required to decide whether the evidence should be excluded under s 137 of the Evidence Act 2008 because ‘its

probative value [was] outweighed by the danger of unfair prejudice to the defendant’.

[40]Evidence Act 2008, s 56.

[41]Evidence Act 2008, s 55(1).

Secondly, in paragraph [40] of his reasons, Ashley JA refers to expressions such as ‘underlying unity’ a common ‘modus operandi’ or ‘pattern of conduct’ or ‘unusual features’ which have, in the past, been used for the purposes of determining the admissibility of tendency or coincidence evidence under s 398A of the Evidence Act 1958.[42] His Honour did not find it necessary to decide whether these descriptions are relevant in determining the admissibility of coincidence evidence under 98 of the Evidence Act 2008.[43] The test for the admission of coincidence evidence under the new provisions is whether 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’. I would not wish to exclude the possibility that, in some circumstances, evidence may be admissible under the new provisions, in circumstances where there was no ‘underlying unity’, common ‘modus operandi’ or a ‘pattern of conduct’ between alleged events or offences.
[42](2004) 7 VR 375.
[43]GBF v The Queen [2010] VSCA 135, [27]; NAM v The Queen [2010] VSCA 95; PNJ v The Queen [2010] VSCA 88, [12]; CGL v The Queen [2010] VSCA 26, [28]-[30].

Thirdly, I agree with Ashley JA that the concept of taking the evidence sought to be admitted ‘at its highest’, applies to the admission of coincidence evidence.[44] I also agree with him, that in the particular circumstances of this case, the principle did not require trial judge to assume that the accused had some ‘involvement’ in Reshma’s death.

WEINBERG JA:

[44]See note 22.

I agree for the reasons so comprehensively set out in the judgment of Ashley JA that leave to appeal should be refused. I would only add that the position taken by the Crown on this application, namely, that evidence of R’s death should be

admitted pursuant to s 98 of the Evidence Act 2008 (Vic) as ‘coincidence evidence’ even if R had committed suicide, is one that I consider entirely untenable.

The submission that such evidence could be led, even on the hypothesis that R committed suicide is not greatly strengthened by the argument now belatedly advanced in this Court that the applicant may have gained the idea as to how to murder J by reference to that earlier suicide. If that were in truth the basis upon which the Crown sought to lead evidence of R’s death, it would not entail coincidence reasoning. Moreover, such evidence would almost certainly be excluded in the exercise of discretion pursuant to s 137 of the Act.

Even on the assumption that R died as a result of some ‘involvement’ of an unspecified and wholly speculative nature on the part of the applicant, the evidence as to R’s death would not meet the requirements of s 98.

The trial judge’s ruling in this matter regarding the evidence of R’s death was, in my view, correct. Leave to appeal is not warranted.

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The Queen v Naidu [2010] VSCA 265

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CGL v DPP [2010] VSCA 26

Martin v Osborne [1936] HCA 23

[2010] VSCA 265

18 October 2010