AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 June 2023

R v Norris

[2023] NSWDC 659

Fraud & dishonesty
CRIME EVIDENCE COINCIDENCE EVIDENCE TENDENCY EVIDENCE ADMISSIBILITY PROBATIVE VALUE

Citation: R v Norris [2023] NSWDC 659
Court: District Court of NSW
Date: 9 June 2023
Judge(s): Beckett DCJ

Background

The accused was charged with intentionally damaging a dwelling house by means of fire on 22 June 2021 at St Marys, contrary to section 195(1)(b) of the Crimes Act 1900 (NSW). The complainant, a neighbour who resided in the same Department of Housing complex, had a history of conflict with the accused over an unpaid vehicle debt and housing-related complaints. On the night of the fire, CCTV footage captured a figure leaving the accused's carport and entering the complainant's property shortly before smoke appeared billowing from the unit.

The Crown's circumstantial case included evidence that the accused's own CCTV system was disabled for approximately 20 minutes around the time the fire started, that the accused assisted in destroying CCTV footage from a neighbouring unit, and that his clothing from the night had been washed before police could examine it. A fire investigation expert was unable to determine the precise origin of the fire but could not exclude deliberate ignition, and an accelerant detection dog indicated at four locations within the damaged property.

Before the trial commenced, the Crown served a coincidence notice under section 98 of the Evidence Act 1995 (NSW) seeking to adduce evidence of 21 fire-related incidents associated with the accused spanning from 1996 to 2020. The defence opposed admission of that evidence by notice of motion, prompting a pre-trial voir dire hearing.

Legal Issues

  • Whether the 21 fire events identified in the Crown's coincidence notice had significant probative value under section 98 of the Evidence Act 1995 (NSW) such that they should be admitted as coincidence evidence.
  • Whether any of the fires were more properly characterised as tendency evidence rather than coincidence evidence, and if so whether they could be admitted without a tendency notice.
  • Whether, in respect of any admissible coincidence evidence, the probative value was substantially outweighed by the risk of unfair prejudice to the accused under section 101 of the Evidence Act 1995 (NSW).
  • Whether certain fires that were not established to have been deliberately lit, or that related to the accused's own property, could satisfy the significant probative value threshold.

Decision

Issue 1: Legal framework for coincidence evidence

Beckett DCJ applied the five-step framework from R v Gale; R v Duckworth [2012] NSWCCA 174 and confirmed the approach in R v Matonwal [2016] NSWCCA 174. The probative value assessment requires consideration of the combined effect of all relevant similarities rather than a sequential or isolated analysis (at [57]). Because the evidence is assessed at its highest on admission applications, an alternative inference available at the time of an individual fire does not automatically deprive the evidence of significant probative value (at [75]).

Issue 2: Which fires had significant probative value

The court found that not all 21 fires satisfied the threshold. Fires that had not been established to be deliberately lit carried insufficient probative value even if suspicion attached to them in retrospect (at [76]). Fires that damaged the accused's own property, occurred in public areas with no identified motive, or where the only connecting feature was geographic proximity similarly did not qualify (at [77]). The court applied the principle from R v Gale that similarities must be capable of proof by means other than the very facts the Crown seeks to establish, and that using proximity alone to connect the accused to a fire risks impermissible circular reasoning (at [77]).

Issue 3: Fires 2 and 22 as tendency rather than coincidence evidence

Fires 2 and 22 were found to involve a financial motive rather than a neighbourly dispute, and the court held that their probative force arose substantially from tendency reasoning, namely a disposition to deliberately light fires for personal gain, rather than from improbable coincidence of shared circumstances (at [78]). In the absence of a tendency notice providing sufficient notice to the accused, those fires could not be admitted on the current application (at [78]).

Issue 4: Prejudice and the section 101 balancing exercise

For the fires identified as having significant probative value (Fires 12-14 and 16-19), the court acknowledged three sources of potential prejudice: the volume of coincidence evidence risked overwhelming the single count on the indictment; the historical nature of several fires produced forensic disadvantage for the accused; and there was a risk the jury would adopt tendency reasoning (at [79]). The court was satisfied that appropriately framed jury directions could address each of these risks, and that the probative value of the admitted fires substantially outweighed any prejudicial effect (at [80]-[81]).

Orders Made

  • Evidence concerning Fires 12-14 and 16-19 admitted as coincidence evidence pursuant to section 98 of the Evidence Act 1995 (NSW).
  • Evidence concerning the remaining fires (including Fires 1-11, 15, 20-22) not admitted as coincidence evidence on the current application.

Key Takeaways

  • Under section 98 of the Evidence Act 1995 (NSW), coincidence evidence must have significant probative value assessed by reference to the combined effect of all relevant similarities; no single feature is considered in isolation, and the evidence is taken at its highest on an admissibility application (at [57], [75]).

  • A fire or incident that has not been established as deliberately lit lacks significant probative value as coincidence evidence, even if suspicion attaches in hindsight, because the asserted similarity depends on assuming the very fact the Crown seeks to prove (at [76]-[77]).

  • Where the probative force of asserted coincidence evidence derives primarily from a disposition or tendency to act in a certain way, rather than from the improbability of shared circumstantial features, the evidence falls within the category of tendency evidence and cannot be admitted under section 98 without a valid tendency notice (at [78]).

  • Dissimilarities between events do not automatically defeat a coincidence evidence application; the operative question is whether the dissimilarities undercut the improbability of coincidental occurrence and detract from the inferential reasoning permitted by section 98 (at [61]).

  • Geographic proximity between the accused and a fire, without more, is insufficient to establish the significant probative value required for admission; there must be some additional identifying feature connecting the accused to the event beyond mere presence in the vicinity (at [77]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- CW v The Queen [2010] VSCA 288
- Davies v The Queen [2019] VSCA 66
- DSJ v R (2012) 84 NSWLR 758
- Elomar v The Queen (2014) 316 ALR 206
- IMM v The Queen [2016] HCA 14
- Melville v R [2015] NSWCCA 289
- Patton v The Queen [2021] VSCA 104
- Perry v The Queen (1982) 150 CLR 580
- PNJ v DPP [2010] VSCA 88; 27 VR 146
- R v Gale; R v Duckworth [2012] NSWCCA 174
- R v Matonwal [2016] NSWCCA 174
- R v MR [2013] NSWCCA 236
- R v Nassif [2004] NSWCCA 433
- R v Zhang (2005) 158 A Crim R 504
- Selby v R [2017] NSWCCA 40
- Tamara Hunt v R [2017] VSCA 196
- Xie v The Queen (2021) 386 ALR 371