98. The coincidence rule

98. The coincidence rule

(1) Evidence that 2 or more events occurred 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 occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless-

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note

One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Subsection (1)(a) does not apply if-

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

Note

Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

The touchstone of admissibility under s 98(1) is similarity: PNJ v DPP [2010] VSCA 88 [at 8]. In CGL v Director of Public Prosecutions [2010] VSCA 26 (in which the same issue arose on an interlocutory appeal) the prosecution conceded that the correct approach to assessing the probative significance of asserted similarities was to be found in the judgment of Winneke P in R v Papamitrou (2004) VR 375 (a pre-Evidence Act decision). In PNG v DPP, Maxwell P, Buchanan and Bongiorno JJA said [at 19 and 20],

19 It is, in our view, a mistake to treat as relevant similarities for this purpose features of the alleged offending which reflect circumstances outside the accused’s control. In this case, a number of the asserted similarities simply reflected the setting in which the offending occurred. Each of the complainants was detained in the Centre. The limited age range of those eligible for such detention accounts for the similarity in ages, as counsel for the applicant pointed out. Likewise, the location of the alleged offending – either in the bedroom of the complainant or in the applicant’s bedroom – reflected the custodial setting. The present case is quite different from that dealt with by Winneke P in Papamitrou, where the accused was able to choose the various locations for the individual sexual acts, and used ‘pretexts to isolate the girls from the company of others ...’.

20 To qualify as a relevant similarity in circumstances such as these, there must be something distinctive about the way in which the accused allegedly took advantage of the setting or context. In the present case, senior counsel for the Crown did not seek to identify any such distinctive behaviour, and we were not persuaded that there was any.

The use of a table drawn up by the Crown for assessing the asserted similarities was commended.

The Court of Appeal affirmed that enquiry into the possibility of 'contamination' (concoction between apparently unconnected complainants) is a necessary part of determining if evidence has significant probative value under s 98(1)(b), following AE v R [2008] NSWCCA 52 [at 44].

The identically-composed Court of Appeal had laid out [at 22] the steps it used for the assessment of coincidence evidence in CGL v DPP [2010] VSCA 26:

22 Accordingly, the questions to be addressed in relation to coincidence evidence are as follows:

1. Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?

2. If so, would the evidence of those events and circumstances tend to prove that the accused:

(a) did the specified act; or

(b) had the specified state of mind

where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?

3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or ought to be adduced by the prosecution?

4. If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?