The Queen v Timothy Bright (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0253
THE QUEEN	Applicant
v
TIMOTHY BRIGHT (A PSEUDONYM)	Respondent

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JUDGES:	BEACH JA, KAYE and LASRY AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2014
DATE OF JUDGMENT:	19 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 341
JUDGMENT APPEALED FROM:	DPP v Bright (a pseudonym) (Unreported, County Court of Victoria, 17 November 2014)

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CRIMINAL LAW – Interlocutory appeal – Cultivating a narcotic plant in a quantity not less than the commercial quantity (2 charges) – Severance of charges – Evidence – Coincidence evidence – Whether evidence cross-admissible – Necessity of determining what evidence is admissible for what purpose on each charge – Prejudice – Evidence Act2008, ss 98 and 101 – Criminal Procedure Act 2009, ss 193, 295, 296, 297 and 300.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P B Kidd SC with Mr Y K Hardjadibrata	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr M A Tovey QC with Ms C A Boston	Melasecca Kelly & Zayler

BEACH JA
LASRY AJA:

Introduction and background

On 23 October 2014, the respondent was arraigned in the County Court on an indictment that charged him as follows:

Charge 1: At Caroline Springs, between 18 February 2013 and 23 April 2013, cultivating a narcotic plant, namely Cannabis L in a quantity that was not less than the commercial quantity[1] applicable to that narcotic plant.
Charge 2:Between 18 February 2013 and 23 April 2013, stealing electricity belonging to [an electricity supplier] .
Charge 3:On or about 1 May 2013, dishonestly obtaining a financial advantage, namely the cost of building repairs, by deception, namely lodging a fraudulent insurance claim in relation to [the premises in Caroline Springs referred to in charge 1].
Charge 4:At Ravenhall, between 1 February 2013 and 31 May 2013 cultivating a narcotic plant, namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that narcotic plant.

[1]The commercial quantity for Cannabis L is 100 plants or 25 kg.

The respondent pleaded not guilty at arraignment. At the time the respondent was arraigned, he was jointly charged with three co-accused in respect of charge 4. There are no co-accused in respect of charges 1, 2 and 3.[2] Additionally, at the time of arraignment, the respondent made application for severance of charges 1, 2 and 3 from charge 4. The Crown opposed this application. During argument on 23 October 2014, the possibility of the Crown filing a single Giretti[3] charge of cultivation of a commercial quantity of cannabis was discussed.
[2]Co-accused in respect of these charges have already been dealt with in the Magistrates’ Court.
[3]R v Giretti (1986) 24 A Crim R 112. See further, Walsh v Tattersall (1996) 188 CLR 77, 86-7 (Gaudron and Gummow JJ) and 107-8 (Kirby J).

On 24 October 2014, the Crown announced that it had decided to proceed against the three co-accused in a separate trial from the respondent. The Crown also said that its preferred position was to prosecute the respondent on an indictment with two charges of cultivating a commercial quantity, rather than a single Giretti[4] charge covering cultivations at two properties.
[4]Ibid.

On 17 November 2014, the Crown filed a fresh indictment against the respondent alone, containing the same four charges on which he had been arraigned on 23 October 2014. The Crown then tendered written submissions (filed before hearing) opposing the respondent’s severance application. The basis for the Crown’s opposition was that the Crown, having filed a notice of its intention to adduce coincidence evidence, relied upon coincidence evidence to make the evidence on each of the charges the respondent was facing cross-admissible. The notice of coincidence evidence asserted that the coincidence evidence relied upon by the Crown related to the issue of ‘whether the [respondent] was complicit in cultivating cannabis with [tenants or occupiers identified in the notice] at [properties identified in the notice] in relation to which the [respondent] was the sole registered proprietor’.

Following argument on 17 November, the judge severed charges 1 to 3 from charge 4. The matter was then adjourned to the following day to enable the Crown to seek instructions about the possibility of an interlocutory appeal against the judge’s ruling.

On 18 November 2014, the Crown announced that it proposed to seek leave to appeal against the judge’s decision to sever the charges. The Crown sought written reasons or ‘oral clarification’ of the judge’s ruling. There was then further discussion between the judge and counsel on 18 November 2014. The judge did not provide written reasons for his decision to sever the charges.

On 19 November 2014, the Crown requested the judge to certify pursuant to s 295 of the Criminal Procedure Act 2009 so that the Crown could seek leave to appeal from the judge’s decision severing the charges. The judge refused the Crown’s application for certification.

Pursuant to s 296(1) of the Criminal Procedure Act, the Crown has applied to this Court for review of the judge’s decision refusing to certify under s 295(3). Additionally, the Crown seeks leave to appeal against the judge’s decision severing charges 1 to 3 from charge 4. This is the hearing of the Crown’s application for review of the judge’s refusal to certify and the hearing of the Crown’s application for leave to appeal.

The alleged offending

Charges 1, 2 and 3 relate to offending alleged to have occurred at and in respect of premises in Caroline Springs. The relevant aspects of the Crown case with respect to charges 1 to 3 may be briefly described as follows.

The respondent is the sole registered proprietor of the Caroline Springs premises. On 23 April 2013, police executed a search warrant at the premises and seized a total of 233 cannabis plants with a total weight of 77.96 kg. The commercial quantity for the cultivation of cannabis is 100 plants or 25 kg. These alleged events relate to charge 1.

On the same day (23 April 2013), the police seized hydroponic equipment and an electricity bypass. It is contended that as a result of the use of an illegal electricity bypass between 18 February and 23 April 2013, in excess of 20,000 kwh of electricity was stolen, resulting in a loss to the relevant electricity retailer of an amount in excess of $6,000. These alleged events form the basis of charge 2.

On 1 May 2013, the respondent is alleged to have made an insurance claim in relation to malicious damage done to the Caroline Springs premises as a result of the hydroponic cannabis cultivation. The insurer upon which the claim was made paid out an amount in excess of $25,000. This claim, insofar as it was based on an assertion that the respondent knew nothing of, and was not involved in, the hydroponic cultivation at the Caroline Springs Premises, was a false claim. These events are said to be the basis of charge 3.

Charge 4 relates to an alleged cultivation at Ravenhall. The relevant aspects of the Crown case in relation to this charge may be briefly stated as follows.

The respondent is the sole registered proprietor of the premises in Ravenhall. On 31 May 2013, the police executed a search warrant at the Ravenhall premises. The police located cannabis at the Ravenhall premises. The total combined weight of the cannabis located was 35.12 kg, with an additional 15.36 kg of cannabis mixed with unidentified material.

The hearing before the judge and the judge’s rulings

The respondent’s application for severance came on for hearing before the judge on 17 November 2014. The respondent had filed a written submission dealing with tendency and coincidence evidence, and his application for severance. By the time of the hearing, the Crown had abandoned any reliance upon tendency evidence. Nevertheless, the respondent’s written submissions advanced argument both on coincidence and tendency evidence, as to why the evidence on charges 1 and 4 was not cross-admissible, and as to why charge 4 should be severed pursuant to s 193 of the Criminal Procedure Act.

The Crown’s written submission (filed before the hearing commenced) contended that the joinder of the charges was appropriate. Specifically, it was contended that the evidence on charge 4 was cross-admissible with the evidence on charges 1 to 3 ‘on the basis of coincidence evidence’. Notwithstanding the terms of the coincidence notice in which the Crown stated that it relied upon coincidence evidence to prove only that the respondent was complicit in cultivating cannabis with certain other individuals at premises owned by him, the Crown’s written submissions asserted an entitlement to use the coincidence evidence, referred to in the coincidence notice, to prove that the respondent was a party to a joint criminal enterprise to cultivate not less than a commercial quantity of cannabis at the Caroline Springs property (charge 1) and at the Ravenhall property (charge 4).

On 17 November 2014, the hearing before the judge proceeded on the basis that the judge had already read and digested the parties’ written submissions. The judge commenced by saying:

The problems that I see here are, that firstly, assuming for the moment – as I understand it – the basic coincidence is said to be the being the registered proprietor of three[5] sets of premises in which the Crown can prove that either a drug crop was existent, or had been existent within a time frame of about three months. As I understand it, that’s really it.
PROSECUTOR: Yes.
HIS HONOUR: Now assuming for the moment – don’t take that as a ruling at all – but assuming for the moment, that that’s sufficient for the three to be heard together and cross-admissible, just make that assumption for the moment. I don’t see how that, insofar as commercial quantity is concerned, can be anything other than propensity. As I say, these are assumptions. Please don’t take these as rulings, because they’re not, either of you. Even if that’s admissible as to knowledge of a cultivation, it seems to me that to take it to the level of commercial, is mere propensity. I just don’t see how you can get around that, and if that’s mere propensity, I struggle to see how a jury could be possibly asked how to take out this – because you’ve got – as I understand it, there’s two commercial quantities: one by about 10 kilograms, and one by – I can’t remember how much, it’s a lot more though.

COUNSEL FOR THE ACCUSED: One’s just over, one’s double.

[5]This reference to three properties (which occurs throughout the hearing) is a reference to the premises in Caroline Springs, the premises in Ravenhall, and to a third property alleged to be owned by the respondent, and at which an unknown quantity of cannabis is alleged to have been found by police.

A little later on the judge said:

Now, they may well be satisfied beyond reasonable doubt of who was the registered owner of that property, but they’d also have to be satisfied beyond reasonable doubt that he was party to a crop before they could use the crop in any way, because any fact – and as I say, I know this is all going to change in about six months, but any factor of significance in their reasoning towards guilt has to be proved beyond reasonable doubt. Now, you could argue that the only factor that has been relied upon is the registered owner in evidence of a crop, full stop. But in terms of where he’s charged with commercial, you couldn’t possibly go to that. You could go to the cultivate element, but not the commercial.

There was then further discussion between the judge and counsel. During this discussion, counsel for the respondent agreed generally with the judge, but little was said by the prosecutor about the judge’s expressed views. Specifically, the prosecutor does not appear to have taken issue with the judge’s statements that while coincidence evidence of involvement and cultivation at different premises might be admissible as coincidence evidence, the question of commerciality, going to the respondent’s intention to cultivate a commercial quantity, rose no higher than ‘mere propensity evidence’. Essentially, the prosecutor appears to have relied upon the Crown’s written submission, without availing himself of the opportunity to make further submissions. It is possible that the prosecutor did not say anything about the issue of commercial quantity because he was aware of the more limited basis upon which the coincidence notice was drawn (namely, relevant only to involvement in cultivation simpliciter). The prosecutor said:

Your Honour, I don’t think I could further assist your Honour in relation to the issue that really is concerning your Honour regarding intent any further, even if I had time. I think we’ve got to the stage where your Honour has to rule and certainly from the prosecution’s point of view, we’d like a written ruling so that we could go through it and consider our options, your Honour.

The judge then said:

I don’t want to be going through the whole thing, and writing out a totally detailed ruling on all this material, and what I’m saying to you quite simply is this. That even assuming that the – being the registered proprietor, and assuming that the tenants, some of whom were known, some of whom weren’t, purchase some of the equipment from this man, and on the basis that you can prove beyond reasonable doubt a crop was grown by the appropriate tenant in the place at Derrimut, that even assuming for the moment that all those go to – as coincidence evidence, the concept of cultivate, it seems to me that all you’ve got insofar as commercial is concerned is that there was a – just over the commercial quantity in one, and just – and double the commercial quantity in the other.
Now that’s two incidences, and I just don’t see how that that fact, and those coincidences all added together could possibly prove beyond reasonable doubt that the man in either case intended to cultivate a commercial crop, and that I think that in that scenario that the aspects of it of being – each being a commercial crop, even if the jury found that there was an agreement, or found those matters, couldn’t go beyond mere propensity. I mean it’s as simple as that, and I can – you know, that’s on that basis.

Now you can do what you like with that, and that’s assuming from the point of view of the Crown. Now the prejudices that would flow as well are: (1) It’ll be very very difficult to defend a – in that scenario, to defend a cultivate where there are allegations of fraud and dishonesty in regard to the first one. The prejudice of that would I think be enormous. Where not only is the bloke a cultivator he’s a fraudster. So he’s a liar, when they’re trying to deal with the second one.
Thirdly, insofar as the third crop is concerned, assuming you can prove one, I think you’d have to – it’s debateable, but unless you were just relying on the fact that he was a registered proprietor and there was a crop in it, the Crown have chosen not to proceed with it, because as I understand it was conceded that it couldn’t be proved beyond reasonable doubt, and in a circumstantial case I think there’d be difficulty with that. Though that’s not – that by itself would probably not give rise to this ruling. That’s the ruling.

There was then further discussion between the judge and the prosecutor, in which the judge repeated that he was not ruling against the Crown on the issue of coincidence evidence so far as the respondent’s involvement and the issue of cultivation was concerned at the properties alleged to be owned by the respondent. As the judge put it:

I’m just simply saying that even if you succeed on coincidence to that level, I don’t think you can have it as to commercial, for those reasons, that’s what I’m saying.

During the course of this discussion, the judge told the prosecutor on two occasions that if the Crown wished to appeal then the judge would ‘certify it for you’.

Additionally, during this exchange between the judge and the prosecutor, the judge said:

The basic prospect is there’s three places, and a crop in each, ho, ho, ho. That’s terrific when you’re dealing with to cultivate, but once you’re trying to get commercial, I think it’s a very different ball game, and that’s not to say that even if it was argued out, that I would necessarily find it was coincidence evidence in any event, and even if I did find it was coincidence evidence, in this form I would be very, very concerned about the prejudice being suffered, even if the commercial went, the prejudice being suffered by the - one being run in tandem with fraud and the other not, when it comes down to the state of mind of a particular person. I’d be very concerned about that, in terms of section – I’ve forgotten what it is now. As I said, the prejudice section, 102,[6] isn’t it.
PROSECUTOR: 101.[7]
HIS HONOUR: Yes, 101. The probative value substantially outweighs ‑ ‑ ‑
PROSECUTOR: Yes.
HIS HONOUR: Yes, and I’d take a lot of persuading that that was the case.
PROSECUTOR: All right.
HIS HONOUR: Just so there’s no misunderstandings about how I see it, and I say that having read, which I might say Mr Prosecutor, are submissions which are of real assistance in me understanding how it was put.
PROSECUTOR: Thank Your Honour.
HIS HONOUR: All right, so we’ll leave it at that.

[6]Section 102 of the Evidence Act 2008.

[7]Section 101 of the Evidence Act 2008.

Finally, and after further repetition of matters that had already been dealt with, the judge ordered severance in the following terms:

I’m ordering severance, so there you go.

In the process of ordering severance, the judge said that he would run the trials ‘back to back’ if that suited the parties.

On 18 November 2014, the parties again appeared before the judge. The prosecutor told the judge that the Director had given his approval for the filing of an interlocutory appeal. The prosecutor asked the judge for written reasons for the ruling given the previous day. The judge declined to provide written reasons. There was further discussion between the judge and the prosecutor as to the precise content of the judge’s reasons for the severance ruling given on the previous day. During the course of this discussion, the judge said:

I’m not ruling out coincidence evidence, I’m not doing that at all. I’m just simply saying that if this evidence is led as is as coincidence evidence, it makes it impossible to charge a jury on [the] concept of commercial for the reasons that I outlined, and I accept the arguments that [counsel for the respondent] put. You can’t add them up. You reckon you can get a jury sitting there and say ‘Right, you’re charged on this one, it’s a commercial, and on this one, it’s a commercial. They’re both commercial, therefore they both must have been’, you can’t do it, it’s an intellectual impossibility. That’s the ruling.

Additionally, during the course of this discussion, the judge said:

If you want to go over the road, that’s fine, on the concept of commercial.

On 19 November 2014, the parties again appeared before the judge. During the course of this discussion, the prosecutor handed up a document headed ‘Request for certificate for interlocutory appeal’. This document applied for certification from the judge ‘in relation to’ decisions said to be made on 17 and 18 November 2014 as follows:
1. Charge 4 is severed from charge 1–3 on the indictment.
2.Coincidence evidence is not admissible to prove the element of intent to cultivate not less than a commercial quantity of cannabis plants for charge 1 and charge 4.
3.On the indictment as framed (in which cultivation in a commercial quantity is pleaded in charge 1 and 4 respectively) coincidence evidence is not admissible to prove participation per se (not intent as to quantity) in cultivating the cannabis at the properties the subject of charge 1 and charge 4 respectively (ie to rebut ‘innocent association’ with the properties).[8]
[8]Emphasis in original.

The judge responded to this document by saying that he had not made three decisions. The judge said that while he had made the first decision, he had previously been ‘at pains to say’ that he had not ruled on the second and third issues referred to in the prosecutor’s document. Indeed, in respect of the so-called third decision, the judge said ‘I definitely haven’t ruled that’.

The judge then said:

Mr Prosecutor, the ruling I’ve given is on the assumption that it is cross-admissible to prove cultivation. I haven’t ruled that you can’t use it – it can’t be used to prove cultivation. I haven’t ruled that at all.
…
What I’m simply saying is this, in a severance application, that it seems to me that, assuming that it’s admissible for the purpose of proving knowledge, there is a further element on this indictment as it stands, which is intention to cultivate a commercial crop, right? That is a different element. What I’m simply saying here is, if it’s admissible or not to that point, and I suspect that it’s mere propensity, insofar as commercial is concerned, you have one that’s just on commercial, or a bit over, you have one that’s double and you have one that you can’t even prove. I don’t see how that could amount to coincidence as to commerciality. It would be simply propensity. And that’s got nothing to do with proving cultivation.

After further discussion between the judge and the prosecutor, the judge said:

Now I’m invoking that as well because of the dishonesty aspects, in respect of charges 1, 2 and 3.
…
Charges 1, 2 and 3 and the multitude of evidence that will be led about dishonesty and fraud and everything else, would create an unfair prejudice in itself.
…
And what I’ve done here is, without having precisely said that, or made that precise ruling, I am – it’s that factor, together with the fact that I don’t think a jury could be properly charged as to what you say [it] could make of those crops, insofar as the element of commercial quantity is concerned. I think that the risk that a jury would simply add them up and say that he is the sort of person that would cultivate a commercial crop, is almost – I don’t know how you’d get around it.
…
I think you’re trying to turn my ruling into something that it isn’t. This is, in one sense, quite simple. If the coincidence evidence is admissible and I’m assuming it is, right, it can be admissible, I think, if it’s going to be admissible, to prove participation and cultivation, alright, that here is the coincidence of three places registered in his name.
There are very significant differences between the nature of those cultivations. The person actually cultivating, in the sense of physical, is different. The nature of the way the lease has come about is different. There is all sorts of differences with them. The simple coincidence is that if someone says, ‘I didn’t know there was a crop in there’, and the Crown say, ‘Well hang on, there’s three places that have got a crop on them’, that’s different.
But you have to prove beyond reasonable doubt that in each instance, and this is what it raises a month ago, that he had an intention to cultivate, not just to cultivate, but a commercial quantity.

Finally, having offered to certify following his ruling on two occasions on 17 November 2014, the judge ultimately declined to certify. The judge said:

I’ll decline to certify it, being fully aware that doesn’t extinguish your rights obviously to take it elsewhere. I believe that what I’ve done is discretionary, it’s not a decision as to – it’s not a 101 in that sense. … It is a 193.[9]

[9]Section 193 of the Criminal Procedure Act 2009.

It is not immediately apparent why the judge, who had offered to certify on two occasions on 17 November, refused to certify on 19 November. The respondent submits that the judge refused to certify because the judge ‘believed that the trial prosecutor had misunderstood his ruling’. That, of course, could not be a basis for a refusal to certify if the requirements of s 295(3) of the Criminal Procedure Act were otherwise met and the point in issue was sufficiently arguable.

The applicant’s proposed grounds of appeal

The applicant seeks leave to appeal on the following proposed grounds:

1.The decision to make the severance order under s 193 of the Criminal Procedure Act 2009 miscarried because the trial judge made the order upon the assumption that coincidence evidence was ‘cross-admissible’ rather than first determining the prosecution’s application for cross-admissibility of coincidence evidence.
2.Alternatively, if it was permissible to assume the cross-admissibility of the coincidence evidence, it was not open for the trial judge to order severance.
3.To the extent that the basis of prejudice relied upon to justify severance were the allegations and evidence of dishonesty encompassed by charges 2 and 3, the trial judge failed to consider whether the prejudice would be mitigated by judicial instruction.
4.The coincidence evidence is in fact admissible and therefore the discretion to sever miscarried.

The relevant legislative provisions

The relevant legislative provisions concerning the admissibility of coincidence evidence so far as this application is concerned are to be found in ss 98(1) and 101(2) of the Evidence Act 2008. Section 98(1) relevantly provides:

(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.

Section 101(2) of the Evidence Act provides:

(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.

The issue of severance is governed by s 193 of the Criminal Procedure Act. Section 193(1) provides that if an indictment contains more than one charge then the court may order that any one or more of the charges be tried separately. Section 193(3) provides that such an order may be made if the court considers that:

(a)the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or

(b) … ; or
(c) for any other reason it is appropriate to do so.

The relevant provisions concerning the appealing of interlocutory decisions made at the trial of an indictable offence are to be found in ss 295, 296 and 297 of the Criminal Procedure Act. Section 295(3) of the Criminal Procedure Act provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies in accordance with that sub-section.

The review of the refusal by the judge to certify under s 295(3) is governed by s 296 of the Criminal Procedure Act. Section 296(4) requires this Court to ‘consider the matters referred to in s 295(3)’, and ‘if satisfied as required by s 297, [the court] may give the applicant leave to appeal against the interlocutory decision’. In the context of this case, that requires this Court to consider whether the interlocutory decision is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[10]
[10]Section 295(3)(b).

Section 297 of the Criminal Procedure Act provides:

(1)Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.
(2)The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
(3)If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.

What ruling(s) did the judge make?

The judge failed to deliver formal or identifiable rulings. One consequence of the judge’s failure to deliver formal or identifiable rulings is that it is not easy for this Court to work out precisely what ruling was (or what rulings were) made by the judge. Plainly, the judge ruled that charge 4 should be severed from charges 1 to 3. A proposition put during argument was that the judge also ruled that the coincidence evidence was not admissible to prove that the respondent intended to cultivate a commercial quantity. Whether the judge so ruled is an issue in the present application.

While one can see statements throughout the transcript, with varying degrees of strength, that the judge had formed a view or views about the admissibility of the coincidence evidence, and while some of these statements might be thought to have been expressed in sufficiently strong language to constitute a ruling (with the judge even using terms like ‘That’s my ruling’), the judge opened proceedings on 17 November 2014 specifically saying that he was not making any ruling about coincidence evidence, and then concluded matters on 19 November by saying specifically (and with some emphasis) that he had not made the rulings described as the second and third rulings in the prosecutor’s document handed to the judge on that day.

It seems to us, that in the face of the judge’s repeated statements that he was not making rulings in relation to coincidence evidence, to be very difficult to construe the transcript of the hearing before the judge as containing the very rulings the judge claimed not to be making. That said, we are acutely aware that, if indeed the judge made a ruling on 17 November 2014, nothing he said on 19 November 2014 can alter that state of affairs. However, in the event of ambiguity in what the judge actually said, the possibility remains that statements made by the judge on 19 November 2014 may go some way to explaining what in fact occurred (and what his Honour in fact ruled) on 17 November 2014. In any event, it is now necessary to consider the substance of what in fact occurred in the court below.

Analysis

To some extent, the Crown’s submissions proceed on a wrong premise – namely that the Crown’s notice of coincidence evidence gives notice in conformity with s 98(1)(a) of the Evidence Act of an intention to lead coincidence evidence on the issue of the respondent’s intention to cultivate cannabis in a quantity that was not less than the relevant commercial quantity. The coincidence notice did not so provide. In the court below, the judge also appears to have proceeded on the basis of this misconception – and no party gave the judge the assistance he was entitled to expect by pointing out this lack of compliance with s 98(1)(a). That said, when this matter was raised with counsel for the respondent during the hearing before us, counsel for the respondent fairly conceded that the respondent had not taken this point before the judge. While the respondent’s submissions before this Court made complaint about this failure to comply with s 98(1)(a) of the Evidence Act in relation to the issue of intention to cultivate a commercial quantity, in argument, counsel for the respondent abandoned this complaint, accepting that his client now had sufficient notice of this aspect of the Crown’s case.

It is plain from the transcript that the judge attempted to resolve the severance issue with as much expedition and efficiency as possible. Specifically, the judge was concerned not to waste time by the production of written reasons in circumstances where he was ready to hear the two trials that would be created by severing charge 4 from charges 1 to 3. As we explain below, the time taken would not have been wasted. In furtherance of his Honour’s endeavour to expedite matters, the judge said on a number of occasions that he was not ruling on questions of cross-admissibility. From the transcript, it would appear that the judge was prepared to proceed on the basis that the evidence on charges 1 to 3 was cross-admissible with the evidence on charge 4 to prove the respondent’s involvement in cultivation simpliciter in respect of charges 1 and 4. While the judge said he was not ruling about cross-admissibility generally, it would appear from the transcript that the judge’s view was that the evidence on charges 1 to 3 was not cross-admissible with the evidence on charge 4 on the issue of the respondent’s intention to cultivate a commercial quantity. Having regard to the terms of the coincidence notice, this conclusion was correct (unless the court was to dispense with notice requirements pursuant to s 100 of the Evidence Act). However, as we have said, the respondent’s complaint about the sufficiency of the coincidence notice was abandoned during the hearing before us.

With respect, there are two difficulties with the judge’s approach. First, before the judge could rule on the severance application, it was necessary to work out precisely what evidence was admissible on each charge. Questions of cross-admissibility needed to be resolved before a decision on severance could be made. Assuming matters on the issue of cross-admissibility could only lead to difficulty down the track if the judge ultimately made a ruling on cross-admissibility different from an assumption upon which a ruling on severance had been given. Further, making a general assumption about cross-admissibility deprived the parties and the Court of the necessarily detailed examination of the evidence that had to be undertaken in order to work out what evidence was admissible in respect of each charge.

The second difficulty with the judge’s approach is in his Honour’s failure to stop at some point in time, after each side had made all the submissions they wished to make, and then make a ruling on the severance issue. While it is possible to glean his Honour’s views from the transcript, the absence of a formal ruling where the judge gives a short recitation of the issue, the arguments, his conclusion and the reasons for his conclusion, makes it difficult for this Court to discern precisely what the judge ordered and the judge’s actual path of reasoning to his ultimate order. As has been said before, a transcript of the hearing of an argument cannot constitute reasons for judgment.[11]
[11]SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 212 ALR 581, 584 [17]–[18].

In declining to certify (on 19 November), the judge said that what he had done was ‘discretionary’. The judge said that the severance decision was a discretionary decision under s 193 of the Criminal Procedure Act, and that ‘it’ was not a decision made under s 101 of the Evidence Act. However, while the decision to sever under s 193 was discretionary, in order to make that decision the judge had to determine whether the coincidence evidence sought to be relied upon by the Crown was relevantly probative (s 98 of the Evidence Act) and, if so, whether such probative value substantially outweighed any prejudicial effect the evidence might have on the respondent (s 101 of the Evidence Act). To that extent, the decision made by the judge could not be said to be merely discretionary. It was only once one had gone through the reasoning processes required by s 98 (and if necessary, s 101) that one could determine that particular evidence, admissible in respect of an element of one charge, was not admissible in respect of a particular element of another charge and that the leading of it in the one trial of both charges could or would give rise to a prejudice not capable of being ameliorated by an appropriate direction.

During the course of argument, the judge appeared to give two reasons for ordering severance. First, the judge was concerned that the jury might engage in propensity reasoning – concluding that if they were satisfied that the respondent intended to cultivate a commercial quantity at one place, then it would make him more likely to intend to cultivate a commercial quantity at another place. Secondly, the judge was concerned that the evidence the Crown would lead about the respondent’s alleged dishonesty in relation to charges 2 and 3 (said to be relevant only to charge 1) might infect the jury’s consideration of the evidence to be led in respect of charge 4. While, after expressing views on these topics, the judge said ‘That’s the ruling’, and while one might infer that what the judge said leading up to that point in time constituted the judge’s ruling on the question of severance, the difficulty for this Court is in knowing precisely how much of what was said by the judge leading up to this point in the transcript the judge intended to be his reasons for the severance order he made.

Up to the point when the judge said ‘That’s my ruling’, little if anything had been said about whether any prejudice to the respondent that was involved in having all four charges heard in the same trial could be dealt with by appropriate directions. There is force in the Crown’s complaints in this regard (ground 3). Additionally, there is no analysis in the transcript of the hearing before the judge on the question of whether the probative value of the coincidence evidence sought to be relied upon by the Crown substantially outweighed any prejudicial effect it may have on the respondent.

It is a routine matter for judges in the County Court to be required to give (and to give) directions to juries that they must consider each charge separately by reference only to the evidence admissible in respect of that charge (a separate consideration charge). It is also routine for trial judges to direct juries that they must not engage in propensity reasoning. Such directions are given in charges on a daily basis, and are expected to be (and are) complied with by juries.

The Crown submits that a standard separate consideration and a standard propensity warning direction would cure any prejudice to the respondent involved in being tried on all four charges in the same trial. This issue does not appear to have been the subject of any detailed consideration by the judge. While it is not appropriate for this Court to determine that issue, there is obvious force in the Crown’s submissions that any prejudice to the respondent could be cured by appropriate directions.

In the result, we are persuaded that the judge erred in failing to hear argument and rule on the issues of coincidence evidence and cross-admissibility that were in dispute between the parties, before dealing with the respondent’s severance application. These were necessary steps to be undertaken before ruling on the respondent’s severance application, so that the question of severance could be properly considered by reference to precisely what evidence was to be admitted in respect of each charge, and for what purpose.

Further, we do not think that the judge gave appropriate consideration to the issue of whether or not any prejudice to the respondent in being tried on all four charges in the one trial could be cured by appropriate directions. That said, it is difficult to be conclusive about the extent of the judge’s consideration of this issue because of the lack of any formal reasons (however brief) for decision following the conclusion of the parties’ submissions.

In the circumstances, we think the appropriate course is to set aside the judge’s order for severance and to remit the matter to the County Court for rehearing and determination in accordance with these reasons.[12] While the Crown invited this court to conclude that the coincidence evidence was admissible to prove the respondent’s intent to cultivate a commercial quantity and then to rule that it was not open to the judge to sever charge 4, we are not persuaded that this is an appropriate course of action. It may be open to a court considering all of the evidence to conclude that the coincidence evidence sought to be relied upon is not admissible to prove an intention to cultivate a commercial quantity, and therefore to conclude that charge 4 should be severed. We are not in a position on the material presented to us to rule that such a possibility is not open. Having regard to the fact that we do not have access to all of the evidence to which the trial judge will have when considering these issues, we do not think it appropriate to express any view as to the strengths or weaknesses of the parties’ arguments on the issues of admissibility of evidence and severance.
[12]Cf s 300(2)(b)(ii) of the Criminal Procedure Act 2009.

Conclusion

The application for leave to appeal will be granted. The appeal will be treated as having been heard instanter and allowed. The decision made on 17 November 2014, severing charge 4 from charges 1 to 3 will be set aside, and the matter will be remitted for rehearing and determination in the County Court in accordance with these reasons.

KAYE AJA:

In my view, the application for leave to appeal should be granted, but the appeal should be dismissed. As I have come to a different conclusion than the majority, I should set out my reasons for doing so in a little detail. For that purpose,

I accept and adopt the statement of the facts and background to the application contained in the judgment of Beach JA and Lasry AJA.
Grounds 1 and 2

In view of the difficulties which have arisen on this application, it is clear that it would have been preferable if the judge had delivered a ruling, in concise form, setting out precisely the basis upon which his Honour decided to sever the indictment, and his reasons for doing so. In saying that, I am mindful of the pressures on County Court judges not to delay trials, and of the need for expedition in the work of that busy court.

Nevertheless, in my view, on a fair reading of the transcript of the proceedings before his Honour on 17 November, and the transcript of the proceedings before his Honour on the following two days, it is sufficiently clear that the judge made the following rulings:

(1)His Honour was prepared to assume that the evidence on count 1, and the evidence on count 4, was cross-admissible, as coincidence evidence, for the purposes of establishing, in the case of each charge, that the accused was a party to a joint criminal enterprise to intentionally cultivate a quantity of cannabis L at the Caroline Springs property (count 1) and at the Ravenhall property (count 4). However, his Honour ruled that the evidence would not be cross-admissible, in each case, to prove that the accused was a party to a joint criminal enterprise to intentionally cultivate a commercial quantity of that drug at each of

those two properties.

(2)His Honour further came to the conclusion that if the evidence, relevant to count 1, was admitted before the same jury that heard the evidence on count 4, the accused would suffer unfair prejudice, which could not be sufficiently mitigated by an appropriate direction by the trial judge. His Honour came to that conclusion for two reasons:
(a)In such a case, the judge would direct the jury that the evidence on count 1 and count 4 was, respectively, cross-admissible, as coincidence evidence, on the issue of whether the accused was a party to an enterprise to intentionally cultivate a quantity of cannabis at each property. The judge would also be required to direct the jury that, if it were satisfied, beyond reasonable doubt, that the accused had been intentionally involved in the cultivation of that substance at one property, the jury could not use the evidence, on that charge, to prove an intention by the accused to intentionally cultivate a commercial quantity of the substance at the property that was the subject of the other charge. His Honour considered that such a direction could not be sufficient to prevent the risk of the jury impermissibly using the evidence, in relation to one charge, as evidence of a propensity or tendency of the accused to intentionally cultivate a commercial quantity of the substance, when considering the evidence against the accused on the other charge.
(b)In addition, the evidence as to the alleged fraud committed by the accused, which is the subject of charge 3, would occasion unfair prejudice to the accused in respect of the consideration of the jury of the evidence relevant to charge 4, which prejudice could not be offset by an appropriate direction by the judge.

(3)Accordingly, the judge ruled that he should sever the indictment, so as to direct a separate trial of charge 4 from the trial of charges 1, 2 and 3.

In considering the transcript of the proceedings on 17 November, it is important to bear in mind that, essentially, the prosecution is required to establish two basic elements in respect of charges 1 and 4, namely:

(1)That the accused was a party to a joint criminal enterprise to intentionally cultivate cannabis at the Caroline Springs property (count 1) and the Ravenhall property (count 4).
(2)That the accused was a party to a joint criminal enterprise to intentionally cultivate a commercial quantity of cannabis at the property that was the subject of the charge.

It is convenient to start, first, by outlining the background to the proceedings of 17 November. As noted by Beach JA and Lasry AJA, the prosecution had served a notice of coincidence evidence, stating that the evidence on each charge was admissible, as coincidence evidence, as to ‘whether the accused was complicit in cultivating cannabis with the … tenants or occupiers at the … properties in relation to which he was the sole registered proprietor’. The prosecution, by that notice, did not state an intention to use the evidence in respect of the issue whether the accused was complicit in cultivating a commercial quantity of cannabis at those properties. That observation is not a matter of form or technicality. It is important that a party, seeking to admit evidence as coincidence evidence, must precisely define the issue to which the coincidence evidence is directed, so that the judge may rule on the admissibility of the evidence in respect of that particular issue.[13]
[13]See for example Rajakuruna v R (2004) 8 VR 340, 360-61 [85]-[88] (Eames JA); Hoch v R (1988) 165 CLR 292, 301.

The representatives for the accused responded to that notice, by filing submissions contending that the evidence was not admissible as coincidence evidence, and that the indictment should be severed. In paragraph 9 of the submissions, it was contended that, if the evidence were ruled admissible as tendency and/or coincidence evidence, that could at most be for the purpose of tending to demonstrate the accused’s involvement in the cultivation of cannabis. The submissions then contended ‘it could not sustain an argument that he knew or was likely to know that at least a commercial quantity of cannabis was being cultivated’.

The prosecution’s written submissions in response did not entirely clarify that issue. In paragraph 23 of those submissions, it was contended that the evidence relating to the three properties (that is, the Caroline Springs property and the Ravenhall property that were the subject of charges 1 and 4 respectively, together with a property at 4 Dundas Street, Derrimut) was relevant to establish that the accused was complicit ‘in cultivating cannabis … at each of the properties in issue’. Pausing there, the evidence in relation to the Derrimut property could only (at best) be admissible to establish intentional cultivation of a quantity of cannabis at the two properties which are the subject of the charges; it could not, logically, be admissible to establish an intention to cultivate a commercial quantity at either of those properties. Yet, in paragraph 25 of its submissions, the prosecution then argued that the evidence on each charge was cross-admissible to prove an intention by the accused, at each property, to cultivate a commercial quantity of cannabis.

It is in that context that the proceedings commenced before the judge on 17 November. In the passage set out by Beach JA and Lasry AJA at paragraph 17 of their Honours’ judgment, the judge raised his concern as to how the evidence, on charges 1 and 4, could be cross-admissible in relation to proof of the complicity of the accused in the cultivation of a commercial quantity at each property. Having expressed that concern at the outset of that day’s proceedings, the judge continued to reiterate it in the course of the discussion which then ensued between himself and counsel. Shortly after the passage quoted by Beach JA and Lasry AJA, his Honour referred to a number of differences between the methods of production of the crop of cannabis at each property, and he referred to the attraction of the proposition that the accused was a man who, in the one time frame, owned three properties, each of which had a crop of cannabis on it. His Honour stated, ‘but … I can’t see how that coincidence could go to commercial’. His Honour then proceeded to observe that the evidence relating to the Derrimut property could not possibly be used ‘to prove the coincidence of a commerciality’. After a further interchange with counsel for the accused, he again stated, ‘as I say, as it stands at the moment it’s the commercial quantity that I’m really concerned about’. During the same interchange, he observed that the evidence, as to a commercial quantity at each property, was only relevant to ‘pure propensity’ and no more. Subsequently, when counsel for the prosecution responded, the judge again expressed the same concern, stating, ‘the starting point is how can the evidence [constitute coincidence evidence] of knowledge and participation in a commercial crop?’ Finally, before embarking on what he described as his ruling, and which is set out at paragraph 20 of the judgment of Beach JA and Lasry AJA, the judge expressed the view that the evidence, in relation to each property, could not prove an intention to cultivate a commercial quantity at the other property.

That, then, is the context to the passage from the transcript, set out by Beach JA and Lasry AJA in paragraph 20 of their judgment, which the judge concluded with the sentence, ‘That’s the ruling’. In my view, in that context, it is sufficiently clear that, in the section of the transcript commencing with the phrase, ‘[n]ow that’s two incidences …’, and concluding with the phrase ‘… couldn’t go beyond mere propensity’, the judge stated his view that the evidence, on charges 1 and 4, could not be cross-admissible, as coincidence evidence, to establish the intentional participation by the accused in the cultivation of a commercial quantity, because that evidence did not go beyond proof of a mere propensity for that purpose.

That proposition is reinforced by the subsequent passage in the transcript, in which the judge said that, even if the evidence was admissible as coincidence in relation to the issue of cultivation of cannabis, ‘I don’t think you can have it as to commercial’. After further discussion, his Honour stated, ‘once we get down to the word commercial, I just cannot see how they can run together’. He again adopted what he had said ‘as my ruling’.

As I stated, in my view, the foregoing passages, to which I have referred, are sufficient to demonstrate that the judge did rule that the evidence as to the cultivation of cannabis, at each of the two properties referred to in charges 1 and 4, would not be cross-admissible as coincidence evidence in respect of the issue whether the accused was intentionally a participant in the cultivation of a commercial quantity of cannabis at that property the subject of the particular charge. It is also clear that the judge considered that, if the evidence of the cultivation of cannabis upon each property was admitted before the same jury, there was a risk that the jury would misuse that evidence as propensity evidence, on the issue of the intention of the accused to cultivate a commercial quantity of cannabis. His Honour considered that that risk, of misuse of the evidence, could not be offset sufficiently by an appropriate direction to the jury. In addition, the judge expressed the view, in the course of the proceedings on 17 November, that there would be further prejudice to the accused, on charge 4, if the evidence on charges 1 to 3 were heard before the same jury, because of the evidence of the fraud which is the subject of charge 3.

Thus, in my view, on 17 November, the judge stated his decision to sever the indictment, gave reasons for that decision, and expressly adopted those reasons in his ruling. He explicitly rejected the request, by the prosecutor, that he commit his oral reasons to writing. In doing so, his Honour did not reserve to himself the option of subsequently adding to, altering or qualifying the reasons he gave for his decision on 17 November. In those circumstances, strictly speaking, the observations made by the judge, on the succeeding days during the proceedings on 18 November and 19 November, are not relevant. However, in any event, I am of the view that the comments made by the judge, particularly on 18 November, and to a lesser extent on 19 November, did not materially alter the basis upon which the judge made his ruling to sever the indictment on 17 November.

On 18 November, during discussion with counsel, and before the passage set out in paragraph 25 of the judgment of Beach JA and Lasry AJA, the judge stated:

I’m not ruling … about the overall aspect of coincidence evidence insofar as the concept of cultivate is concerned. All I’m simply saying is that in this given scenario, I don’t see how I could instruct a jury on the question of commercial. If – if – I don’t see how it could go in as coincidence evidence on commercial. That’s all I’m saying. Not to go for cultivate.

In my view, in that passage, the judge was repeating his ruling of the previous day, namely, that while he was not ruling on the cross-admissibility of the evidence on each charge, as coincidence evidence, on the question of whether the accused was intentionally involved in the cultivation of cannabis, his Honour considered that the evidence was not cross-admissible, as coincidence evidence, on the issue of the intention of the accused to cultivate a commercial quantity of cannabis. It is in the context of that passage that the succeeding passage, referred to by Beach JA and Lasry AJA, must be understood. Thus, subsequently, towards the end of the discussion with counsel, his Honour stated:

I’m finding it hard to accept that it was not understood what I was saying yesterday, that I was not ruling on coincidence evidence, I was simply saying that even if assuming … for these purposes that it’s admissible, … what I’m ruling is that the coincidence can’t be used to prove the knowledge of commercial, because there’s only two [properties].

Pausing there, it is, I consider, clear, not only from the transcript of the proceedings on 17 November, when the judge made his ruling, but from the transcript of the proceedings on 18 November, when the judge discussed his ruling, that the judge did make the rulings which I have outlined in paragraph 58 above. Indeed, as I understand his submissions before this Court, senior counsel for the applicant did not seek to contend to the contrary. Rather, he relied, principally, on the transcript of the proceedings on 19 November, to support his submission that the judge had not made a ruling as to the cross-admissibility of the coincidence evidence at all.

It is beyond argument that the discussion by the judge, on 19 November, of his reasons for ordering severance of the indictment on 17 November, is confusing. Nevertheless, I do not consider that the remarks made by his Honour, on that day, were sufficiently clear to alter, or in some way disavow, the basis upon which the judge had made an order for severance of the indictment, namely, his conclusion that the evidence on charges 1 and 4 was not cross-admissible as coincidence evidence as to the intention of the respondent to cultivate a commercial quantity of cannabis.

In the passage from the transcript quoted by Beach JA and Lasry AJA at paragraph 29 of their judgment, the judge was, sufficiently clearly, indicating that he had assumed the evidence was cross-admissible to prove that the accused had been intentionally involved in the cultivation of cannabis at each property, but that he considered that the evidence, on each charge, could not amount to coincidence evidence to prove the intentional participation by the accused in the cultivation of a commercial quantity of cannabis at each property, because that evidence would ‘be simply propensity’ evidence. Immediately after the passage quoted by Beach JA and Lasry AJA, the judge said ‘I don’t see how that could amount to coincidence as to commerciality’.

The confusion as to this issue arises because, in the discussion that occurred shortly after that passage, the judge seemed to state that he had not made a ruling to the effect that the evidence was not admissible as coincidence evidence to prove the second element of charges 1 and 4, namely, the intention to cultivate not less than a commercial quantity of cannabis. However, after a further discussion with counsel, his Honour stated that what was ‘concerning’ him was not that the prosecution was seeking to prove an intention to cultivate cannabis, but that it was also seeking, by use of the coincidence evidence, to prove that the accused had an intention to cultivate a commercial quantity.

Further confusion then arose when, at the suggestion of senior counsel for the respondent, the judge then characterised his ruling as a ‘discretionary ruling’, stating that he had not made a ruling on the admissibility of coincidence evidence. Yet, in the course of that discussion, he again reverted to characterising the evidence, on each charge, as ‘propensity’ evidence when directed to the other charge.

As I stated, the discussion which took place on 19 November, in response to the prosecution’s application for the judge to certify his ruling, is confusing. That confusion highlights, with respect, the difficulty which the judge has caused, not only for himself, but also for this Court, arising from the rejection by his Honour of the request by counsel for the prosecution that he commit the reasons for his ruling, made on 17 November, to writing. However, notwithstanding that observation, what is at issue in this case is the ruling made by the judge on 17 November. As I observed, I consider that the basis of that ruling was sufficiently clear. The judge, on that day, did not qualify his ruling by undertaking to commit it to writing, or to explain it subsequently. Rather, the ruling which the judge made, and the reasons which he gave for it, are those recorded in the transcript of 17 November. To the extent that the discussion during the proceedings of 18 November and 19 November is relevant, I do not consider that that discussion materially altered the nature of the ruling made by the judge, nor the reasons which his Honour gave for his ruling on 17 November.

It is for those reasons that I have reached the conclusion that the judge, in the course of the proceedings on 17 November, did positively rule that the evidence on count 1 was not cross-admissible on the evidence on count 4 to prove, in respect of each count, that the accused had intentionally cultivated a commercial quantity of cannabis at the property the subject of the particular count. It is also clear that the judge, having reached that conclusion, considered that there was a risk that, if the charges were not severed, the jury might engage in propensity reasoning, which could not be forestalled by an appropriate direction given by him to the jury. For those reasons, I would not uphold ground 1 and ground 2 of the grounds of appeal.

Ground 3

Ground 3 is to the effect that, to the extent that the basis of prejudice relied on by the trial judge to justify a severance consisted of the evidence of dishonesty alleged in charges 2 and 3, the judge failed to consider whether that prejudice would be mitigated by judicial direction.

However, as I have earlier indicated, the judge did not confine the prejudice, which he considered could not be mitigated by appropriate jury direction, to the difficulty of ensuring that the jury did not involve in propensity reasoning arising from the allegations of dishonesty comprised in charges 2 and 3. In addition, the judge was concerned that, if the evidence on charges 1 and 4 was cross-admissible on the first element (intentionally cultivating cannabis), but not on the second element (an intention to cultivate a commercial quantity of cannabis), the jury might engage in impermissible propensity reasoning in respect of that second element.

That aspect of the judge’s ruling was not given detailed attention by the submissions made on behalf of the applicant. Nevertheless, I have given some consideration to the type of direction, which a judge would need to give, if the indictment were not severed, and if the evidence on charges 1 and 4 was cross-admissible only in respect of the first element of the offences charged, but not as to the second element. Such a direction would need to contain an instruction to the jury, first, as to the matters on which the jury would need to be satisfied, in order to engage in permissible coincidence reasoning in respect of the first element of the two charges. Such a direction would, also, need to caution the jury that, when considering that first element, it must not use the evidence on each charge, interchangeably, to engage in impermissible propensity reasoning.

So far, such a direction would be similar to an orthodox direction given by judges in cases in which two or more counts are jointly tried, and the evidence on each count is cross-admissible as constituting coincidence evidence on each other count. The more complex aspect of this case is that, in addition to that direction, the judge would need to direct the jury that, while (subject to proof by the prosecution of the prescribed conditions) the jury would be entitled to use the evidence on each charge as coincidence evidence in respect of the first element of the other charge, it could not use that evidence to engage in propensity reasoning in respect of the second element of the charge. Added to that caution, the trial judge would need to direct that the jury must not use the evidence, as to the dishonesty offences charged in counts 2 and 3, as the basis for propensity reasoning when considering charge 4.

Certainly, such a direction is capable of being carefully crafted, and given to a jury. However, judicial minds might reasonably differ as to whether such a direction would succeed in ensuring that the jury did not engage in impermissible tendency or propensity reasoning of the type that I have outlined. It is the long experience of judges of the courts that juries are particularly astute in following directions of the type that I have outlined. Speaking for myself, I might have reached a different conclusion, than the trial judge in this case, as to whether an appropriate direction could be given to a jury to allay the prejudice, about which the judge was concerned. However, ordinarily, such an assessment is, in my view, very much a matter for the trial judge, who is best placed to determine whether an appropriate direction would be sufficient to mitigate the type of prejudice discussed by his Honour. In this case, the judge’s view, that such a direction would not be sufficient to protect the respondent’s right to a fair trial, is reasonable. Accordingly, I would not uphold ground 3 of the grounds of appeal.

Ground 4

Those conclusions bring me to ground 4, which is to the effect that the coincidence evidence is in fact admissible, and therefore the discretion to sever the indictment miscarried.

In order to sustain that ground, the applicant must demonstrate that the judge erred in law in ruling that the evidence on charges 1 and 4 was not cross-admissible as coincidence evidence to prove the second element on each charge, namely, the intention of the respondent to cultivate a commercial quantity of cannabis at the property the subject of the particular charge.

It is obvious, from the passages of the transcript of the proceedings of 17 November, to which Beach JA and Lasry AJA, and I, have each referred, that the judge did not, in the course of his oral ruling, give other than cursory reasons for reaching that conclusion. At the commencement of the proceedings on that day, in the passage referred to by Beach JA and Lasry AJA in paragraph 17 of their Honours’ reasons, the judge noted that the similarities, then relied on, were the fact that the respondent was the registered proprietor of the three properties (Caroline Springs, Ravenhall and Derrimut), and that the prosecution could prove that a drug crop was cultivated at each of those premises. Subsequently, at the commencement of his oral ruling, the judge referred to three similarities that were relied on by the prosecution, namely, that the respondent was the registered proprietor of each property, that the tenants of those properties had purchased some of the drug manufacturing equipment from him, and that a crop of cannabis was grown by each tenant at the three premises. It was those facts which his Honour considered were insufficient as a basis for the cross-admissibility of the evidence on charges 1 and 4 as coincidence evidence, at least to establish the second element of those charges, namely, the intentional cultivation of a commercial quantity of cannabis at the premises that are the subject of the two charges.

The written submissions, which are contained in the application book, reveal that, initially, the prosecution relied on some other similarities as a basis as contending that the evidence was cross-admissible as coincidence evidence. However, in the course of the application, we were informed by counsel for the respondent that, during detailed discussion on the issue of cross-admissibility on 23 October and 24 October, the prosecution had conceded that the points of similarity, relied on to establish coincidence, were the three points to which I have just referred. It is that background which, I consider, provides some assistance in explaining the basis upon which the judge concluded that the evidence on counts 1 and 4 was not cross-admissible as coincidence evidence, at least in relation to the second element of the charges the subject of each of those counts.

Senior counsel for the applicant contended that the judge should have ruled that the evidence on counts 1 and 4 was cross-admissible as coincidence evidence. In support of that submission, he maintained that it defies common sense to contemplate that the respondent could have been the owner and lessor of the three properties, at each of which substantial quantities of cannabis were being cultivated, unless he knew and intended that activity to be occurring at each of those properties.

In order to constitute coincidence evidence that is admissible under s 98, the similarities of the two or more events (or circumstances) in question must be such that it is improbable, to a significant degree, that those events (or circumstances) occurred by coincidence. In that way, it must be demonstrated that the ‘coincidence’ evidence relied on has significant probative value of the fact sought to be established. As this Court stated in CV v DPP:[14]

The evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of the fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance.[15]

[14][2014] VSCA 58, [14].

[15]See also CW v The Queen [2010] VSCA 288, [6]; compare Velkoski v The Queen [2014] VSCA 121, [174]-[178].

In addition, s 101 requires that, to be admissible, the probative value of the coincidence evidence must substantially outweigh any prejudicial effect it may have on the accused.

In CGL v DPP,[16] the court defined the issues which must be addressed in determining whether the evidence, is admissible as coincidence evidence under s 98. The court stated:
[16][2010] VSCA 26, [22].

Accordingly, the questions to be addressed in relation to coincidence evidence are as follows:
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 sought 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.

As the recent decision of the court in Velkoski v R[17] demonstrates, a careful identification of the material similarities in the specified events (or circumstances) is fundamental to addressing each of those questions.
[17][2014] VSCA 121, [164]-[169], [174].

Thus, in this case, the question as to the cross-admissibility of the evidence on charges 1 and 4 (and the admissibility, in respect of those charges, relating to the Derrimut property) involves the question whether the similarities, relied on by the prosecution, in respect of the three properties, are such that it would be improbable that those events occurred as a matter of mere coincidence, and without the accused intending that a commercial quantity of cannabis be cultivated at the Caroline Springs property and at the Ravenhall property. Further, in that way, it must be demonstrated that the degree of that improbability is such that the evidence would have a significant probative value in demonstrating that the accused intended that a commercial quantity of cannabis be grown at each of the two properties.

Although the judge did not expressly address those questions, in order to sustain this appeal, the applicant must demonstrate that the judge erred by failing to determine those two issues in a manner favourable of the prosecution.

On this application, the court is, necessarily, somewhat at a disadvantage in determining those issues. The only materials available to the court, on this application, are the summary of the prosecution opening, the written submissions of the prosecution and of the defence on the issue of admissibility at trial, and the relatively brief submissions made by the parties on this application. For the purposes of ruling on ground 4, I shall briefly summarise the relevant facts, which I have derived from those sources.

As appears from the judgment of Beach JA and Lasry AJA, the respondent was, at the times material to the charges, the registered proprietor of the three properties at Caroline Springs, Ravenhall and Derrimut. The properties at Caroline Springs and Derrimut were residential premises, and the property at Ravenhall was a factory.

The prosecution alleges on count 1 that the respondent was a party to a joint criminal enterprise with LVT and NK to cultivate a commercial quantity of cannabis at the Caroline Springs property between 18 February 2013 and 23 April 2013. It is alleged that before the commencement of that enterprise, the respondent had been cultivating cannabis hydroponically at that property with its previous tenant in late 2012, and that an illegal electrical bypass had been used for that purpose.

In early 2013, the respondent attempted to arrange a lease of the Caroline Springs property to LVT through an estate agent in what may be described as colourable circumstances. Ultimately, the residential tenancy agreement was completed with LVT on 5 February 2013. At about that time, NK approached LVT and arranged with him to cultivate cannabis at the Caroline Springs property. On 18 February, optical surveillance recorded NK and LVT attending the Hyalite Store at Sunshine. There, they loaded various items into a Toyota Hi-Ace van, assisted by the respondent. The items included materials suitable for use in the cultivation of cannabis. The van then departed the store, and later in the same morning, returned to it.

Subsequent physical surveillance, conducted by the police at the Caroline Springs premises, on different occasions, revealed that LVT and NK attended there for only short periods of time, and it appeared that otherwise their role at the premises involved them being ‘crop sitters’ for the cannabis plants being grown there. On 23 April, police executed a search warrant at the Caroline Springs property, and arrested LVT and NK. Police located an elaborate hydroponic cannabis crop throughout the house. The rooms of the house had been set up to grow cannabis using a reticulated watering system, illegal electrical bypass, and a high powered lighting system suspended from the ceiling. Police seized 233 cannabis plants, with a total weight of 77.96 kilograms. The prescribed commercial quantity for the cultivation of cannabis is 100 plants or 25 kilograms.

On 1 May, the respondent made an insurance claim on QBE Australia in relation to malicious damage caused to the premises at Caroline Springs as a result of the hydroponic cannabis cultivation. The claim was made on the basis that the respondent had no previous knowledge of that activity at the Caroline Springs property. It is that claim that is the subject of charge 3 on the indictment.

The premises at Ravenhall are located in a light industrial estate. The prosecution alleges, in charge 4, that the respondent was a party to a joint criminal enterprise with ZJ, ZD and ST to cultivate a commercial quantity of cannabis at those premises between 1 February 2013 and 31 May 2013.

On 3 September 2009, the respondent leased the Ravenhall premises to ZJ, trading as MC, initially for a period of twelve months. In January 2013, in a number of mobile telephone calls that had been intercepted by the police, the respondent was heard discussing with various persons the use of large tents. On 31 January 2013, an optical surveillance device was installed outside the Ravenhall property. From 7 February, a number of vans and other vehicles, connected to the Sunshine Store of Hyalite, attended the Ravenhall property at various times. Two of those vehicles had been recorded on optical surveillance device being used to regularly transport goods and supplies from the Hyalite Sunshine store.

On 21 February 2013, ZJ attended the factory at 7.25 am. At 8.17 am the respondent arrived there driving a white Toyota Hi-Ace van. He entered the factory premises, and then, at 8.37 am, re-entered the van, and reversed it closer to the front door. The respondent and ZJ then loaded items into the rear of the van, after which the respondent departed in the van.

Later in the morning of 21 February, the respondent attended an air conditioning warehouse in Ravenhall and purchased an industrial split system air conditioner. At 8.42 am on 22 February, the white Toyota Hi-Ace, which had been driven by the respondent on the previous day, was observed reversing towards the roller door of the Ravenhall property, and then driven back out. At 9.13 am, the respondent left the Hyalite Sunshine store driving the van. Later in the afternoon, he re-attended at the air conditioning warehouse, to swap the air conditioner, which he had purchased on the previous day.

On 6 March 2013, a covert police search of the Ravenhall property revealed that it contained three large mature cannabis plants that had been growing for about 12 weeks, together with 15 smaller mature plants that had been growing for about six weeks. The total number of cannabis plants located was 33.

On 28 April 2013, ZJ and the respondent were observed at the Sunshine Hyalite Store. ZJ departed the store driving the Toyota van, and he was later observed at the Ravenhall factory unloading items from it.

On 1 May 2013, an internal optical surveillance device revealed that there were five tents being used at the Ravenhall property to grow cannabis plant crops hydroponically. ZJ was observed at the premises attending to the tents.

On 23 May 2013, a Toyota sedan, registered to the respondent’s stepdaughter, was observed arriving at the factory. The driver of the vehicle appeared to look for someone, before departing.

From 28 May 2013, ST and ZJ were seen at the factory involved in harvesting cannabis. On 31 May, ZJ, ZD and ST were arrested at the Ravenhall factory. Police seized four small cannabis plants, 18 harvested cannabis plants, and a total of 12 mature cannabis plants at the premises. The total weight of the cannabis was 35.12 kilograms, with an additional 15.36 kilograms of cannabis mixed with unidentified material.

The prosecution alleges that the respondent had also cultivated cannabis hydroponically at the Derrimut property with the tenant to the property, SM, from about 19 December 2012 to 22 February 2013, and that an illegal electricity bypass was used for that purpose. The property was originally leased by the respondent to SM in July 2012 for a period of 12 months. Between December 2012 and May 2013, SM regularly attended the Sunshine Hyalite Store and met with the respondent there. Between 19 November 2012 and 22 February 2013, the property used ten times the normal amount of electricity for a property of that size. On 6 June 2013, the police executed a search warrant at the Derrimut property. No cannabis was located there, but there was evidence that the property had been used to cultivate a hydroponic cannabis crop in the four bedrooms of the house. In particular, the evidence was consistent with the use of an illegal electricity bypass, the installation of ventilation ducts, and the suspension of high powered lights from the ceiling.

In its written submissions before the trial judge, the prosecution relied on a number of similarities between the activities conducted at each of the three premises. They included the following:

(a)The temporal connection of the hydroponic cultivation of cannabis at each of the three properties.
(b)Each of the properties were located in the outer western suburbs of Melbourne.
(c)The respondent was the sole registered proprietor of each property.
(d)At each property, a hydroponic cultivation system was used, with an illegal electricity bypass implemented at the two residential properties at Caroline Springs and Derrimut.
(e)In the period of the respective cultivations at the three properties, the tenants or occupiers had obtained their hydroponic equipment and supplies from the Hyalite store at Sunshine, where the respondent worked.

In response, the written submissions relied on by the defence, before the trial judge, pointed to a significant number of differences between the activities conducted at each of the three properties. The defence also submitted that a number of the purported similarities between the activities conducted at the three properties were superficial. In particular, the use of hydroponic cultivation for the production of cannabis, and the use of rental properties and electrical bypasses, are very common features of offending involving the cultivation of cannabis.

It is apparent from the facts which I have summarised, that the most significant similarities, that are relevant for the purposes of the question of the cross-admissibility of the evidence, are that the respondent owned the three properties in the western suburbs, at which the tenants contemporaneously cultivated cannabis using hydroponic products obtained from the store at which the respondent was the general manager. It is those facts that are common to the Caroline Springs and Ravenhall properties. The use of a hydroponic cultivation system, and of an illegal electricity bypass (which is common to the Caroline Springs and Ravenhall properties), is a usual feature of the illegal cultivation of cannabis.

The question, as to whether the similarities relied on by the applicant are sufficient to qualify the evidence, to be adduced in respect of each charge, as coincidence evidence for the purposes of s 98, must be determined by reference to the particular fact or facts in issue, to which that evidence is sought to be directed. Thus, it is first necessary to define, with specificity, the fact or facts in issue, which it is contended that that evidence is relevant to establish, in order to address the questions, in respect of the application of s 98 and s 101, that were outlined by the Court of Appeal in CGL v DPP, and to which I have referred.

The particular question, which is raised on this appeal, is whether the evidence, as to the cultivation of cannabis at the three properties, was admissible, as coincidence evidence, to prove that the respondent was intentionally a party to a joint criminal enterprise to cultivate a commercial quantity of cannabis at the two properties, that are the subject of charges 1 and 4 on the indictment.

In my view, it may be readily concluded that the similar features relating to the three properties, that are relied on by the applicant, are sufficient to demonstrate that it is most improbable that, during the period from late 2012 to May 2013, cannabis was cultivated at the Caroline Springs and Ravenhall premises, without the applicant knowing of, and acquiescing in, the activities that were conducted at each of those premises. In other words, it is most improbable that coincidence could constitute a credible explanation for the fact that, during that time period, the respondent owned three properties in the western suburbs, at two of which, unbeknown to him, cannabis was cultivated by the lessee of the premises using hydroponic equipment purchased from the store at which he was the manager, and during which, again unbeknown to him, activities took place at the third property which were consistent with the hydroponic cultivation of cannabis at that property.

Pausing there, in that way, the evidence would, I consider, have significant probative value to establish that the respondent knew of, and acquiesced in, the cultivation of cannabis at the two properties, that are the subject of charges 1 and 4 on the indictment. Further, that inference, together with the facts relied on by the prosecution, are sufficient to support the proposition that it is highly improbable that the respondent knew of and acquiesced in the cultivation of cannabis at those properties, without himself being an intentional party to the enterprise in which cannabis was cultivated there. While the inference, to that effect, is less powerful than the inference in respect of the proof of the respondent’s knowledge of, and acquiescence, in the cannabis cultivation activities at the properties, nevertheless, it is sufficiently strong to justify the conclusion that the evidence, sought to be adduced by the prosecution, would have significant probative value to establish that the respondent was an intentional party to such an enterprise at each property. Thus, the evidence would, in my view, be cross-admissible, as coincidence evidence, for the purposes of proving the first element of counts 1 and 4.

The critical question raised by ground 4, is whether the evidence, sought to be relied on by the prosecution, is cross-admissible (and in the case of the Derrimut property, admissible) to prove that the respondent intended that a commercial quantity of cannabis be cultivated at the two properties, that are the subject of charges 1 and 4.

In this respect, the evidence relating to the Derrimut property, as summarised in the prosecution opening, does not, of itself, establish that a commercial quantity of cannabis had been cultivated at that property. Certainly, it is tempting to draw that conclusion from the facts set out in the opening. However, based on the summary of the prosecution opening (and without the benefit of the depositions or any other evidence), it could not, in my view, be concluded that the evidence, relating to the Derrimut property, is sufficient to demonstrate the production of a commercial quantity of cannabis at that property. Thus, the evidence in relation to the Derrimut property is of limited assistance in determining whether the evidence on charges 1 and 4 is cross-admissible, as coincidence evidence, to prove, in respect of the other charge, that the respondent intentionally cultivated a commercial quantity of cannabis at the premises the subject of that charge.

I accept that it might be unlikely that the respondent, knowing of, and being a party to, the cannabis production enterprises at each of the two properties, would not be aware of the scope of those two enterprises. However, I am not persuaded that the degree of improbability, as to that possibility, is sufficient to give the evidence, on each charge, significant probative value in respect of the intention of the respondent to cultivate a commercial quantity of cannabis which is the subject of the other charge.

For example, I am not satisfied that the proposition, that the respondent was not intentionally a party to the cultivation of a commercial quantity of cannabis at the Caroline Springs property, is so improbable, notwithstanding (if it be the fact) the coincidence of the facts: that he was intentionally involved in the cultivation of a commercial quantity of cannabis at the Ravenhall property; that he was intentionally involved in the cultivation of a quantity of cannabis at the Caroline Springs property; and that a commercial quantity of cannabis was cultivated at the Caroline Springs property.

In other words, I am not satisfied that the coincidence of those three facts is sufficient to give those facts, working together, significant probative value to establish that the accused intended to cultivate a commercial quantity of cannabis at the Caroline Springs property. While such a proposition is attractive, nevertheless, for the purposes of s 98, the evidence must be demonstrated to be such as to render the explanation of coincidence so improbable that the concatenation of the common similar facts give that evidence significant probative value. In this respect, I share the view of the trial judge, namely, that the evidence is not sufficient to qualify as coincidence evidence, for the purposes of s 98, to establish that the respondent intended to cultivate a commercial quantity of cannabis at the properties that are the subject of charges 1 and 4 respectively.

For those reasons, I am not persuaded that the evidence is admissible as coincidence evidence pursuant to s 98 of the Evidence Act 2008 to establish the second element of charges 1 and 4. In light of that conclusion, it is not necessary for me to consider whether, if the criteria prescribed in s 98 were satisfied, the probative value of the evidence would substantially outweigh any prejudicial effect it may have on the accused, for the purposes of s 101.

In reaching that conclusion, I should emphasise that the views that I have stated have been based solely on the materials contained in the appeal book, which do not include the depositions or any other such material. The decision of the majority in this appeal is that the matter should be remitted to the trial judge for re-hearing and determination in accordance with the reasons of the majority. At the re-hearing, the judge will have available substantially more materials than were available to this Court. Bearing that qualification in mind, I would not uphold ground 4 of the grounds of appeal.

Conclusion

For the reasons I stated, in my view, the application for leave to appeal should be granted, and the appeal should be treated as heard instanter and dismissed.

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[2014] VSCA 341

19 December 2014