Citation: [2015] NSWDC 117
Court: District Court of New South Wales
Date: 22 June 2015
Judge(s): A Haesler SC DCJ
Background
Three accused were on trial in connection with a fire at a vehicle repair workshop in Asquith in November 2012. The Crown alleged that one accused (described here as the accessory defendant) wanted his car destroyed so he could claim on its insurance policy. On 15 November 2012, he arranged a staged collision in a supermarket car park to have the vehicle written off. He subsequently pleaded guilty to an offence arising from that incident.
On 29 November 2012, while the car was under repair at the workshop, it was allegedly destroyed in a deliberately lit fire along with several other vehicles, gutting the premises. The Crown case against all three accused was entirely circumstantial. There was no direct evidence against any of them.
The Crown applied, after the close of its case against the accessory defendant, for leave to use evidence of the 15 November incident as coincidence evidence to prove the improbability of the two events occurring coincidentally. The Crown had not served the required coincidence notice before trial.
Legal Issues
- Whether the Crown's failure to serve a coincidence notice before trial was fatal to the application, or whether the notice requirement could be dispensed with under section 100(2) of the Evidence Act 1995
- Whether the evidence of the 15 November 2012 incident had sufficient probative value under section 98 of the Evidence Act 1995 to be used as coincidence evidence against the accessory defendant
- Whether the probative value of that evidence substantially outweighed its prejudicial effect under section 101(2) of the Evidence Act 1995
- Whether section 101(4) applied, given the defence had not adduced evidence at the time of the application
Decision
Issue 1: Late service of the coincidence notice
The Crown served its coincidence notice on the morning of the application, well after trial had commenced. The court found no excuse for this failure. However, the court dispensed with the notice requirement under section 100(2) of the Evidence Act 1995 on the basis that no prejudice resulted to the defence. The evidence had been properly admitted from the outset, the issues were known to all parties before trial, and granting leave would not unduly lengthen the proceedings (at [10]).
Issue 2: Probative value under section 98
The court identified the relevant "similarities" between the two events as the accessory defendant's conduct in inciting others to damage his car in order to make an insurance claim. That act and the associated state of mind were the same across both events (at [20]). The court accepted that the evidence was capable of rationally affecting the assessment of the probability of a fact in issue, and that the jury was likely to assign the evidence significant probative value (at [22]). In assessing probative value, the court took into account the alternative hypothesis advanced by the defence, namely that the destruction of the car on 29 November was a genuine coincidence (at [13]).
Issue 3: Probative value versus prejudice under section 101(2)
The court acknowledged the risk that the jury might engage in simplistic propensity reasoning, inferring guilt from the mere fact of prior wrongdoing (at [17]). However, it found that this risk could be addressed through proper jury directions rather than by excluding the evidence from the coincidence use (at [18], [24]). To deny the Crown this line of reasoning would deprive it of something essential to the proper presentation of its case and would invite the jury to ignore a rational and compelling inference available from the evidence (at [24]). Both the section 98 and section 101 tests were satisfied (at [26]).
Issue 4: Application of section 101(4)
The court held that section 101(4) did not apply. The defence had not adduced evidence at the time of the application, and a bare assertion or absence of challenge to Crown evidence did not constitute adducing evidence. Accordingly, the Crown evidence was required to, and did, have substantial probative value (at [16]).
Orders Made
- The statutory tests in sections 98 and 101 of the Evidence Act 1995 were found to be satisfied.
- The Crown was granted leave to use the evidence of the 15 November 2012 incident to prove that the two events on 15 and 29 November 2012 did not occur coincidentally.
Key Takeaways
- Late service of a coincidence notice does not automatically defeat a Crown application: under section 100(2) of the Evidence Act 1995, a court may dispense with the notice requirement where the issues were known to the defence and no prejudice results (at [10]).
- Under section 98, the assessment of probative value in a criminal case must account for any alternative explanation inconsistent with guilt of which there is a real possibility, including a defence of genuine coincidence (at [13]).
- Simplistic propensity reasoning by a jury, reasoning that because a defendant acted criminally once they did so again, is impermissible; however, the District Court confirmed that this risk is properly addressed through jury directions rather than by excluding the coincidence use of evidence (at [17]-[18]).
- No requirement exists that the two events share "striking" similarities for coincidence evidence to be admissible under section 98; it is sufficient that the similarities have the capacity to be of importance or consequence in establishing the propositions advanced (at [15], [23]).
- Where the defence has not adduced evidence at the time a coincidence application is determined, section 101(4) does not apply, and the Crown must satisfy the higher threshold that the probative value of the evidence substantially outweighs its prejudicial effect under section 101(2) (at [16]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158
- JG v R [2014] NSWCCA 138
- R v Lockyer (1996) 89 A Crim R 457
- R v MR [2013] NSWCCA 236
- Saoud v R [2014] NSWCCA 136
- R v XY [2013] NSWCCA 121; 84 NSWLR 363