AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
40
Court of Criminal Appeal 5 November 2003

REGINA v ELLIS [2003] NSWCCA 319 revised - 27

[2003] NSWCCA 319

Also reported as (2003) 58 NSWLR 700 144 A Crim R 1
Theft & property
EVIDENCE TENDENCY AND COINCIDENCE CRIMINAL TRIAL ADMISSIBILITY MULTIPLE COUNTS ON INDICTMENT

Citation: Regina v Ellis [2003] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 5 November 2003
Judge(s): Spigelman CJ; Sully J; O'Keefe J; Hidden J; Buddin J

Background

The appellant was convicted in the District Court on eleven counts of break, enter and steal (and related offences) following a joint trial before Holt ADCJ and a jury. All offences were committed on commercial premises across several rural NSW towns, and each involved the same distinctive method: an entire pane of glass was removed from its seals to gain access to the premises.

Before trial, the Crown gave notices under both sections 97 and 98 of the Evidence Act 1995, seeking to rely on evidence from each offence as tendency and coincidence evidence in relation to all other offences on the indictment. The trial judge admitted that evidence in respect of eleven of the thirteen counts, permitting a joint trial to proceed on those eleven. In doing so, Holt ADCJ applied the language of section 101(2) of the Evidence Act 1995 directly, without reference to the common law test articulated by the High Court in Pfennig v The Queen (1995) 182 CLR 461.

The appellant appealed, contending that the trial judge applied the wrong test and wrongly admitted the tendency and coincidence evidence. The single ground of appeal was that this amounted to a miscarriage of justice.

  • Whether the Evidence Act 1995 regime for tendency and coincidence evidence was intended to cover the field to the exclusion of the pre-existing common law.
  • Whether the Pfennig v The Queen test, requiring that there be "no rational explanation" for the evidence other than guilt, applies to the admissibility of tendency and coincidence evidence under the Evidence Act 1995.
  • Whether a trial judge applying section 101(2) is required to conduct a balancing exercise between probative value and prejudicial effect using the statutory formulation, rather than the common law test.
  • Whether the line of prior NSW Court of Criminal Appeal authority applying Pfennig to the statutory framework was correct.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously, though the five judges reached their conclusions through reasoning that diverged on one point of emphasis.

All five judges held that the statutory regime in the Evidence Act 1995, specifically sections 94 to 101, was intended to cover the relevant field to the exclusion of the pre-existing common law principles. The word "substantially" in section 101(2), which requires that probative value substantially outweigh prejudicial effect, is a legislative formulation in its own right. It does not derive from, and is not to be interpreted by reference to, prior case law including Pfennig.

The full court held that applying the Pfennig "no rational explanation" test is inconsistent with the section 101(2) balancing exercise. The statutory test requires a court to assess the actual prejudice in the specific case and weigh it against probative value. Importing the Pfennig test risks displacing that case-specific balancing exercise and may cause a trial judge to give inadequate consideration to prejudicial effect. The earlier line of NSW Court of Criminal Appeal authority that applied Pfennig to the statutory framework, including decisions in Lock, Foley, AH, Veitch, Fordham, Colby, WRC, Joiner and Folbigg, was held to be incorrect. The Court noted, however, that on certain facts it may not be open to conclude that probative value substantially outweighs prejudicial effect unless the Pfennig test would also be satisfied. The two tests are not always in conflict.

Hidden and Buddin JJ agreed with the Chief Justice's orders and reasons, but added that the inherently prejudicial nature of tendency and coincidence evidence should guide the section 101(2) balancing exercise, such that the test remains one of "very considerable stringency." Spigelman CJ (with whom Sully and O'Keefe JJ agreed) disagreed with this gloss, holding that the statutory formulation should operate according to its own terms without any assumption that such evidence is always highly prejudicial.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Evidence Act 1995 provisions governing tendency and coincidence evidence (sections 94 to 101) occupy the field and displace the pre-existing common law, including the Pfennig v The Queen test.
  • A trial judge applying section 101(2) is required to conduct a case-specific balancing exercise, asking whether probative value substantially outweighs prejudicial effect, not whether there is "no rational explanation" for the evidence other than guilt.
  • In dismissing the appeal, the Court of Criminal Appeal expressly declined to follow a substantial line of its own prior decisions that had applied the Pfennig test to the statutory framework, noting that those decisions pre-dated the High Court's clarification in Papakosmas v The Queen.
  • Where the statutory test is satisfied will depend on the facts of each case; the Court acknowledged that in some cases probative value may not substantially outweigh prejudicial effect unless the Pfennig standard would also be met.
  • A division of opinion within the Court remains on whether the section 101(2) test carries an inherent assumption of stringency: Hidden and Buddin JJ regarded such evidence as likely to be highly prejudicial in most cases, while Spigelman CJ (Sully and O'Keefe JJ agreeing) rejected any such assumption as inconsistent with the plain statutory language.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 94, 97, 98, 99, 100, 101, 110, 111, 135, 137, 141
- Crimes Act 1900 (NSW), ss 112, 113, 344A
- Crimes Act 1958 (Vic), s 398A
- Evidence Act 1997 (Qld), s 132A

Cases:
- Pfennig v The Queen (1995) 182 CLR 461
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Lock (1997) 91 A Crim R 356
- R v Folbigg [2003] NSWCCA 17
- R v Joiner [2002] NSWCCA 354
- R v WRC (2002) 130 A Crim R 89
- R v Colby [1999] NSWCCA 261
- R v Fordham (1997) 98 A Crim R 359
- R v AH (1997) 98 A Crim R 71
- R v Veitch [1999] NSWCCA 185
- Foley (unreported, NSWCCA, 5 June 1997)
- Hoch v The Queen (1988) 165 CLR 292
- Sutton v The Queen (1984) 152 CLR 528
- Harriman v R (1989) 167 CLR 590
- R v Boardman [1975] AC 421
- Conway v The Queen (2000) 98 FCR 204
- R v OGD (No 2) (2000) 50 NSWLR 433
- R v Andrews [2003] NSWCCA 7
- R v Blick (2000) 111 A Crim R 326