Background, Tendency and Coincidence Evidence Law Assessment Answers
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In The Supreme Court of the Australian Capital Territory Criminal Jurisdiction
BACKGROUND
1. The accused, David DOUGLASS, is charged with the following offences alleged to have occurred on 26 April 2020:
a). one count of murder, contrary to s12 of the Crimes Act 1900 (ACT); and
b). one count of possessing or using a firearm whilst not authorized, contrary to s43(1)(a)(iii) of the Firearms Act 1996 (ACT).
2. The Crown relies upon the evidence as exhibited to the affidavit of Ryan Roberts sworn on 8 October 2020 and as filed in this Honourable Court to prove the coincidences identified.
3. The relevant evidence is further summarised in the Crown’s Notice of Intention to Adduce Coincidence Evidence dated 8 October 2020.
ADMISSIBILITY OF COINCIDENCE EVIDENCE
4. The touchstone of admissibility is relevance: s55 Evidence Act 2011 (ACT) (the ‘Act’). If evidence is relevant, it is prima facie admissible, unless some other provision of the Act renders it inadmissible.
5. The Coincidence Rule in s98(1) of the Act is such a provision and operates as both an inclusionary rule and exclusionary rule of evidence.
6. The proposed coincidence evidence is highly probative, as it will directly affect the assessment of a central fact in issue in the proceedings, namely the identity of the accused. This evidence, if admitted, will directly affect the tribunal of fact’s assessment of the probability and likelihood that it was the same offender who committed each of the charged acts.
RELEVANT LAW
7. Section 98 of the Act is the governing provision concerning the admissibility of coincidence evidence in criminal proceedings. Section 98 provides that:
98 The coincidence rule
(1) Evidence that 2 or more events happened 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 happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Note: One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict coincidence evidence presented by another party.
8. ‘Coincidence Evidence’ is defined in the Dictionary to the Act as ‘evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to n that subsection’. It is said that coincidence evidence ‘invites a particular form of probalistic reasoning designed to establish a particular fact or state of mind’.
9. In R v Gale; R v Duckworth (2012) 217 A Crim R 487, Simpson J observed that:
[25] At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is:
two or more events occurred; and
There were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and having regard to those similarities, it is improbable that the two events occurred coincidentally;
Therefore the person in question did a particular act or had a particular state of mind.
10. The steps to be undertaken for the determination of the admission of coincidence evidence are as set out by Simpson J in R v Gale at [30]-[31]:
[30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:
That there is evidence capable of establishing the occurrence of two or more events; and that there is evidence capable of establishing similarities in the two or more events; or that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
That there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
[31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
The first step is to identify the “particular act of a person” or the “particular state of mind of a person” that the party tendering the evidence seeks to prove;
The second step is to identify the “two or more events” from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the “particular act” or had the “particular state of mind”;
The third step is to identify the “similarities in the events” and/or the “similarities in the circumstances in which the events occurred” by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
The fourth step is to determine whether “reasonable notice” has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s100(2) ought to be given, dispensing with the requirement);
The fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, “have significant probative value”;
In a criminal proceeding, if it is determined that the evidence would have “significant probative value”, the sixth step is the determination whether the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 101(2)).
The sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
11. The Crown further considers the steps as follows:
Step 1 – ‘particular act’ or ‘particular state of mind’
12. The particular act that the Crown seeks to prove is that it was the same offender who carried out the offences identified at para [1(i)-(ii)] above.
Step 2 – identification of two or more events
Step 3 – Similarities
13. In R v Mason [2019] ACTSC 161 (‘Mason’) at [526], her Honour, Penfold J, added to the third step a “requirement to identify, unless it is blindingly obvious, the reasoning process by which the similarities are said to be probative of the act or state of mind to be proved.”
14. The authorities do not require “striking” similarities or even closely similar behaviour. In R v AKN [2013] ACTSC 64 it was held at [34] that ‘striking’ or ‘substantial’ similarity was not the authority for the admission of coincidence evidence. Further, the Court in R v MR [2013] NSWCCA 236 at [78] noted “neither any individual similarity, nor any collection of similarities, must answer the description “striking”.
Step 5 – Significant probative value
Step 6 – Unfair prejudice outweighed by the significant probative value
ULTIMATE SUBMISSION
15. It is respectfully submitted that, for the reasons provided in these submissions, this Honourable Court permit the Crown to present evidence as coincidence evidence as outlined in the Crown’s Coincidence Notice dated 8 October 2020.
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