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Court of Criminal Appeal 2 December 2005

Regina v R.N

[2005] NSWCCA 413

Sexual offences

Citation: Regina v R.N [2005] NSWCCA 413
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judges: Sully J, Grove J, Howie J

Background

The respondent faced trial in the District Court on twelve counts of serious sexual offences against his stepdaughter. As part of its case, the Crown sought to lead evidence from the complainant's mother as "coincidence evidence" under section 98 of the Evidence Act 1995 (NSW). Coincidence evidence, broadly, is evidence of two or more events so similar that it is improbable they occurred by coincidence, and here the Crown argued the mother's evidence closely mirrored the complainant's account.

Before a jury was empanelled, trial Judge Coolahan DCJ conducted a hearing on the voir dire (a preliminary hearing to determine admissibility). Both counsel agreed the evidence had significant probative value and met the threshold requirements under section 98. The real contest was whether the evidence should nonetheless be excluded under section 101(2), which requires exclusion if its probative value does not substantially outweigh any prejudicial effect.

His Honour excluded the mother's evidence, reasoning that a reasonable possibility of concoction between mother and daughter could not be ruled out. The Crown appealed that ruling to the Court of Criminal Appeal under section 5F(3A) of the Criminal Appeal Act 1912.

  • Whether Judge Coolahan applied the correct legal test under section 101(2) of the Evidence Act 1995 when excluding the mother's coincidence evidence
  • Whether the three factors identified by his Honour (the close mother-daughter relationship, the two-day gap before the complainant's police interview, and the discrepancy about discussion of the brown bottle) were capable, individually or together, of establishing a reasonable possibility of concoction
  • Whether the trial judge's reasons adequately demonstrated a proper balancing of probative value against prejudicial effect

Decision

The Court of Criminal Appeal, speaking through Sully J (with Grove J and Howie J agreeing), found that Judge Coolahan had not carried out the balancing exercise that section 101(2) requires. Once his Honour accepted that the evidence had significant probative value, the next step was to identify specifically what prejudicial effect admission might cause, and then to weigh the high probative value against that prejudice. The reasons did not demonstrate that this weighing had actually occurred.

The Court applied the approach articulated by Howie J in R v Harker [2004] NSWCCA 427, which holds that simply repeating statutory language without explaining how the prejudice outweighs probative value is insufficient. A section 101(2) ruling must make apparent that the judge has engaged precisely with what the section requires.

On the substance of the three factors, the Court found each was insufficient. A close mother-daughter relationship does not, by itself, rationally raise a reasonable possibility of concoction. A two-day gap before a police interview is similarly insufficient on its own. The discrepancy about when the brown bottle was first discussed was, viewed with practical common sense, at least as consistent with an honest mistake as with concoction, and neither witness had been challenged with any suggestion of actual collusion or improper influence.

The Court also noted that the reasons made no examination of whether the evidence itself carried any risk of illegitimate prejudice based on its content, which was a further omission from the required analysis. Even where some prejudice exists, exclusion is not the only remedy available; appropriate jury directions may suffice.

Orders Made

  • Crown appeal allowed
  • Ruling excluding the mother's evidence set aside

Key Takeaways

  • A trial judge ruling on coincidence evidence under section 101(2) of the Evidence Act 1995 must carry out an explicit balancing exercise, comparing probative value against prejudicial effect, and the reasons must show that exercise was actually performed.
  • Restating the statutory words of section 101(2) without engaging with how the particular evidence is prejudicial, and why that prejudice substantially outweighs probative value, is not sufficient reasoning.
  • None of the three factors identified by the District Court (a close familial relationship, a short pre-interview gap, and an evidentiary discrepancy) were capable, individually or combined, of rationally establishing a reasonable possibility of concoction where neither witness had been challenged on the point.
  • Where some risk of prejudice exists, exclusion of evidence is not automatically the correct response; a trial judge must also consider whether appropriate jury directions could adequately address any identified risk.
  • In allowing the appeal, the Court of Criminal Appeal reaffirmed the approach in R v Harker and the principles drawn from Pfennig v The Queen, confirming that the admissibility balancing exercise demands a genuine value judgment informed by the specific facts, not a formulaic application of statutory language.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW) 1912, s 5F(3A)
- Evidence Act (NSW) 1995, ss 98, 101(2)

Cases:
- Hoch v The Queen (1988) 165 CLR 292
- R v Colby (1999) NSWCCA 261
- BRS v The Queen (1998) 191 CLR 275
- R v Harker [2004] NSWCCA 427
- Pfennig v The Queen (1994-1995) 182 CLR 461
- R v Ellis (2003) 58 NSWLR 700
- R v Milat, unreported, 5 September 1996