R v Gibbs [2004] ACTSC 63 (29 July 2004)

Last Updated: 17 September 2004

THE QUEEN v CHRISTOPHER SCOTT GIBBS [2004] ACTSC 63 (29 JULY 2004)

EVIDENCE - coincidence rule - ss 98, 101 Evidence Act 1995 - probative value of evidence - prejudicial effect - dangers of improbability reasoning and circularity of reasoning.

EVIDENCE - coincidence evidence - similar facts - whether evidence of one incident admissible in relation to another - whether offences charged are `substantially and relevantly similar' - probative value of the evidence does not substantially outweigh the prejudicial effect.

Evidence Act 1995 (Cth), s 98, s 101, s 116, s 137

Evidence Regulations, reg 6

J D Heydon, Cross on Evidence, Butterworths, Australia

Pfennig v R [1995] HCA 7; (1995) 182 CLR 461

R v Ellis [2003] NSWCCA 319, unreported, 5 November 2003

W v R [2001] FCA 1648; (2001) 189 ALR 633

Australian Law Reform Commission, Interim Report 26, Vol 1

Director of Public Prosecutions v Boardman [1975] AC 421

Piragoff, Similar Fact Evidence (1981) 171

Odgers, Uniform Evidence Law, 5^th ed, (2002) Australia

R v Blackledge [1965] VR 397

R v Vaitos (1981) 4 A Crim R 238

R v John W [1998] 2 Cr App R 289

R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384

R v McGranaghan [1995] 1 Cr App R 559

R v Downey [1995] 1 Cr App R 547

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

No. SCC 102 of 2003

Judge: Gray J

Supreme Court of the ACT

Date: 29 July 2004

IN THE SUPREME COURT OF THE )

) No. SCC 102 of 2003

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

CHRISTOPHER SCOTT GIBBS

RULING ON VOIR DIRE

Judge: Gray J

Date: 29 July 2004

Place: Canberra

THE COURT RULES THAT:

1. The evidence as to one count is not admissible in aid of proof of the other.

1. 1. The accused is charged by indictment with two counts involving an act of indecency, one alleging the commission of the offence on 9 January 2003 and the other on 15 February 2003. In one case the complainant was aged 22 years and in the other 14 years. The accused sought that the counts be severed and tried separately. The prosecution takes the view that the evidence on one count is admissible on the other because of the improbability of the events occurring coincidentally (the coincidence rule ss 98, 101 Evidence Act 1995 (Cth) (the Evidence Act)). Accordingly, a ruling was sought on the voir dire by the parties as to the admissibility of the evidence on one of the counts to the other on the basis that if I held a preliminary view that evidence on one count was not admissible on the other, the prosecution would sever the counts on the indictment.

The proposed evidence in respect of each count

2. In accordance with the provisions of the Evidence Act, a notice of intention to adduce coincidence evidence was given in accordance with reg 6 of the Evidence Regulations. Subsequent to the giving of the notice, a committal hearing took place in which the witnesses referred to in the notice gave evidence. In some cases the evidence was modified from that given in the notice. The prosecution is content that I accept the facts as modified. I set out the substance of the evidence to be adduced that is stated in the notice and have placed in parenthesis the differences arising from the evidence at committal -

[Count 1]

(i) About 7.00am on 9 January 2003 Stuart MacLean Eisenberg was walking along Chewings St Page in the Australian Capital Territory towards [McGinness] St Scullin. At the intersection of [McGinness] and Chewings Street a black Hyundai Coupe with 5 spoke mags with low profile tyres pulled up beside him and parked in [McGinness] Street facing towards Chewings Street. The driver was observed by Stuart Eisenberg to be a male Caucasian, in his late 20's to early 30's, weighing between 70-90 kgs, with light brown hair in a crew cut, a thin `goatee' beard and measuring between 5'6 foot to 5'8 foot [sic]. The driver had his pants down to his knees and his erect penis was visible. The driver stated to Stuart Eisenberg `I will give you $200 if I can suck you off'. Stuart Eisenberg replied, `no'. The driver then said, "how about $50 just to see you'. This incident is further particularised in the statement of Stuart Eisenberg dated 17 February 2003.

(ii) About 11.00pm on 29 January 2003 Stuart Eisenberg was walking along [McGinness] Street Scullin towards Chewings Street when he formed the view that a car had begun to follow him. He continued to walk along Chewings Street and then into [Petterd Street] Page. By the time Stuart Eisenberg had reached the corner of Halford Street and [Petterd] Street he had seen the vehicle about 6 times. The car was a black Hyundai Coupe with 5 spoke mag wheels and low profile tyres. The ACT registration was YBU81J. The driver of the car was a [C]aucasion male in his late 20's to early 30's, between 70-90 kgs, between 5'6 foot and 5'8 foot in height with light brown hair and a crew cut. Stuart Eisenberg recognised the driver as the same man that had approached him on 9 January 2003 as described above, and recognised the car as the same car that person had been driving on 9 January 2003. [Stuart Eisenberg was sure that it was the same car but could not say and was not sure that it was the same person who was the driver.] This incident is further particularised further in the statement of Stuart Eisenberg dated 17 February 2003.

[Stuart Eisenberg also attended an identification parade on 25 June 2003 in which he identified a person other than the accused as the offender.]

(The prosecution also intends to lead evidence that YBU81J is a dark blue Hyundai Coupe with 5 spoke mag wheels registered to Christopher Scott GIBBS. Further particulars of this are contained in the statement of Constable Andrew Donaldson dated 30 April 2003).

[Count 2]

(iii) About 12.30pm on 15 February 2003 Nathan Patrick John Coleman was walking along Inglis Place Latham in the Australian Capital Territory. At this time a shiny dark coloured car sports car with round headlights pulled up beside him. The front passenger window was down and a male person was seated in the driver seat. This person was a male Caucasian, in his late twenties or early thirties, [wearing sunglasses] of a solid build, with short ginger [to blond] hair [and some facial hair] and possibly had a goatee beard. The male had his erect penis out of his pants and with one hand was stroking it. The male said, `excuse me mate, do you want a head job'. Nathan Coleman had seen the same car a number of times in the minutes before the incident as he walked the streets delivering newspapers. This incident is further particularised in the statement of Nathan Coleman dated 15 February 2003.

(iv) At about 1.10pm on February 2003 Ian George Coleman, the father of Nathan Coleman, followed a car from [Dalley] Crescent, Latham, onto Southern Cross Drive Latham and then onto O'Loghlen Street Latham. He did this on the basis that the car and the driver matched the description of the car and person Nathan Coleman had provided him in relation to the incident described at (iii) [the description was of a `male person, ginger haired, short haired, stocky build, sunglasses']. Ian Coleman describes the car as a dark Hyundai sports car bearing registration YBU81J. Ian Coleman describes the driver of the car as having short [cropped] ginger hair and being of a solid [or stocky] build. This incident is further particularised in the statement of Ian Coleman dated 17 February 2003.

(v) At 7.00pm on 25 June 2003 Nathan Patrick Coleman viewed an identification parade consisting of 9 males conducted at the Winchester Police Centre at Belconnen. At that time Nathan Coleman picked Christopher Scott GIBBS as the person who had approached him on 15 February 2003 and asked him for sex while exposing his penis. Nathan Coleman further expressed at this time that the identification was done on a 50% probability basis. Further particulars of this identification are contained in the video tapes of the identification parade, in the Identification Parade form dated 25 June 2003 and in the statement of Sergeant Paul Whittaker dated 26 June 2003.

The prosecution also intends to lead evidence that YBU81J is a dark blue Hyundai Coupe with 5 spoke mag wheels registered to Christopher Scott GIBBS. Further that this car is the only one of its make, model and colour registered in the ACT. Further particulars of this are contained in the statement of Constable Andrew Donaldson dated 30 April 2003).

(The prosecution also intends to tender a photograph showing that Mr Gibbs had a goatee beard and ginger [hair] on the 15^th February 2003).

The coincidence rule

3. The admissibility of the evidence of one of the counts on the trial of the other is dependent upon the application of the coincidence rule. That rule, and what is comprised by coincidence evidence, is set out in s 98 of the Evidence Act -

98 The coincidence rule

(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:

(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or

(b) the court thinks that the evidence would not, 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.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar.

(3) Paragraph (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.

Section 101 provides -

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

Similar fact evidence

4. The coincidence rule under the Evidence Act is an aspect of what a common law has regarded as the similar fact rule, an exclusionary rule in respect of evidence of offences other than those charged. In Cross on Evidence, J D Heydon, Vol 1 (81:4:04) at [21010] the exclusionary rule is set out -

The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions (including the possession of discreditable material) if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause.

5. At common law, the High Court in a joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 482-483, determined that the probative force of such evidence should meet the following test -

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here `rational' must be taken to mean `reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. [Footnotes omitted]

The position under the Evidence Act

6. However, as the NSW Court of Criminal Appeal (Spigelman CJ, Sully, O'Keefe, Hidden and Buddin JJ) held in R v Ellis [2003] NSWCCA 319, unreported, 5 November 2003, the tests at common law for the admission of such evidence have been replaced by the enactment of ss 97 and 98 of the Evidence Act which set out the tendency and coincidence rules. Although various authorities differed on this aspect, that court ultimately preferred those views on the effect of these provisions of the Evidence Act similar to those expressed by Miles and Madgwick JJ in W v R [2001] FCA 1648; (2001) 189 ALR 633. In that case, Madgwick J also observed at 659 [101]) -

The Evidence Act in these areas deliberately eschewed the particular, mandatory or near-mandatory rules for the admission or rejection of tendency or coincidence evidence developed by the Australian common law. It would be wrong for the courts, as it were, to seek to re-establish those rules under cover of attempting to develop general guidelines to assist trial judges in the near discretionary judgments called for by ss 97, 98 and 101. It is, however, another and an unwarranted thing to say that trial judges cannot usefully recall the experience and need for caution that gave rise to those now-discarded rules of the common law: R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433.

7. Both Miles and Madgwick JJ considered that the reasoning of McHugh J, who was in dissent in Pfennig (supra), had adopted an approach more consistent with that required by the Evidence Act. In the course of his reasons, McHugh J said in Pfennig (at 531) -

It follows that in each case where evidence is tendered that discloses, directly or indirectly, the criminal propensities of the accused, it is necessary to identify the nature of the risk, if any, to which the admission of the evidence gives rise. In similar fact cases, for example, evidence is often admitted for the reason that the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused's involvement in the matter (Makin, [1937] UKHL 2; [1894] AC 57 (the baby-farming case) and R v Smith (1915), 11 Cr App R 229 (the brides in the bath case) are examples). In these cases, the propensity of the accused will usually only be established by the verdict. The risk of prejudice is much less than in a case like Thompson or Straffen.

Makin is the classic example. It was a case involving objective improbability reasoning, not propensity reasoning (see Piragoff, Similar Fact Evidence (1981), 109). The propensity of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused's propensity. I am unable to agree with the statement of Dawson J in Harriman that Makin was `a case in which the probative value of the other instances of baby-farming activities on the part of the two accused lay in establishing a disposition on their part to engage in such activities which, together with the other evidence in the case, pointed with great force to their having murdered the one child with whose murder they were charged' ((1989) 167 CLR at 600). On this approach, the jury would find the disposition from the uncharged deaths and then use that disposition to conclude that the accused had murdered the child the subject of the charge. That is certainly not the way that the courts have hitherto dealt with cases giving rise to objective improbability reasoning. Indeed where there is only one similar instance beside the charged instance relied upon, it would be a very strange reasoning process. The risk of prejudice in true similar fact cases is not from propensity reasoning but from the fact, as Murphy J pointed out in Perry (1982) 150 CLR at 594, that `[c]ommon assumptions about improbability of sequences are often wrong'. A jury may wrongly give the similar fact evidence far more weight than it deserves.

Those remarks are pertinent to the factual situation in this case where the prosecution are relying on the sequence of events as involving objective improbability reasoning. The approach that I take to the issues of probative value and prejudicial effect in the application coincidence rule is to adopt the approach that McHugh J takes (cf W v R (supra) at [102] per Madgwick J).

The application of s 98 Evidence Act

8. In applying s 98 of the Evidence Act, it must be determined at the outset whether the events comprising each of the counts are related. For this purpose, s 98(2) provides for two or more events to be related events, the events must be substantially and relevantly similar and the circumstances in which they occurred be substantially similar. The Australian Law Reform Commission, Interim Report 26, Vol 1 at par 806 explained that the proposal was that `the substantial similarities be relevant similarities; similarities which ensure the earlier acts or states of mind are capable of significantly affecting the probabilities'.

9. If the test were the common law test, it would be that of `striking similarity'. But as Lord Hailsham points out in Director of Public Prosecutions v Boardman [1975] AC 421 at 452-453 -

The truth is that a mere succession of facts is not normally enough (see Moorov v H M Advocate, 1930 JC 68 on `a course of criminal conduct'), whether the cases are many or limited to two as in H M Advocate v AE, 1937 JC 96. There must be something more than mere repetition. What there must be is variously described as `underlying unity' (Moorov v H M Advocate), `system' (see per Lord Reid in Reg v Kilbourne), `nexus,' `unity of intent, project, campaign or adventure' (Moorov v H M Advocate), `part of the same criminal conduct,' `striking resemblance' (Rex v Sims [1946] KB 531). These are all highly analogical not to say metaphorical expressions and should not be applied pedantically. It is true that the doctrine `must be applied with great caution' (see Ogg v H M Advocate, 1938 JC 152, per the Lord Justice-Clerk (Lord Aichison), at p 158), but:

`The test in each case, and in considering each particular charge, is, Was the evidence with regard to other charges relevant to that charge?' (per Lord Wark, at p 160).

The test is (per Lord Simon of Glaisdale in Reg v Kilbourne [1973] AC 729, 759) whether there is `... such an underlying unity between the offences as to make coincidence an affront to common sense' or, to quote Hallett J in Reg v Robinson, 37 Cr App R 95, 106-107, in the passage cited by Professor Cross, Evidence, 3^rd ed, p 316:

`If a jury are precluded by some rule of law from taking the view that something is a coincidence which is against all the probabilities if the accused person is innocent, then it would seem to be a doctrine of law which prevents a jury from using what looks like ordinary common sense.'

This definition would seem easy enough were it not for the fact that the judge must, as a matter of law, withhold from the jury evidence which is outside the definition.

In adopting what the Evidence Act describes as related events as `substantially and relevantly similar' and requiring the circumstances as substantially similar, the description may be unduly restrictive. As the learned author points out in Piragoff, Similar Fact Evidence (1981) 171, `striking similarity cannot in itself justify admissibility. If so, it would be nothing more than a new catchword - category justifying admissibility regardless of the probative sufficiency of the evidence'. In my view it is that probative sufficiency that must colour the giving of effect to the description of `substantially and relevantly similar' in the Evidence Act.

10. One unintended difficulty is that if the evidence fails the test of related events, the evidence loses the protection of s 101 of the Evidence Act that `the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant' (see Odgers, Uniform Evidence Law, 276 [1.3.69900]). In that case, the evidence would be required to be tested against the less restrictive test in s 137 of the Evidence Act, that of `its probative value [being] outweighed by the danger of unfair prejudice to the defendant'.

Application to this case

11. As I have said, it is the probative effect which colours the appreciation of the evidence. Bearing that in mind, the question of the events constituting the counts in this case being substantially and relevantly similar in circumstances that are substantially similar will require an appreciation of what they may ultimately prove. The similarity that the prosecution contend for is constituted by what is said to be -

(i) the location and circumstances of the offences (in approaching single males on the pavement);

(ii) the offender fitted a common description down to the facial hair in both complainants' evidence of the offences (I have excluded the observation of Nathan Coleman's father as that was not an observation of `an offender' but of a person meeting the description he had been given);

(iii) on both occasions similar propositions were made (in giving oral sex rather than receiving it);

(iv) on both occasions the offender's erect penis was exposed; and

(v) on each occasion the offender was driving a distinctive car (a shiny dark coloured sports car with round headlights).

12. It was submitted on behalf of the accused that the area concerning, as it did, two adjoining suburbs of Canberra, was not a particularly distinctive characteristic but I would have thought that the stronger points lie in the offer of money which accompanied the first event, but not the second, and perhaps the conflict expressed in Stuart Eisenberg's committal evidence as to the age grouping in which he would place the offender. There is also the difference in ages of the complainants.

13. I do not regard the conclusion as to these events being related events for the purposes of the Evidence Act as, by any means, being clear cut. In the end, I think the commonality of features in the description of the offender and the motor vehicle sufficiently fulfil the requirements of s 98(2) of the Evidence Act (cf R v Blackledge [1965] VR 397 at 399 where something more than sameness in the nature of the offences was required; see also R v Vaitos (1981) 4 A Crim R 238).

14. If the evidence of the events is being adduced in this case to show that it was the accused who committed the offence, then it clearly does not have sufficient probative force to do that. At its highest, it can only establish the likelihood that the same person committed both offences. It is not probative of that person being the accused unless other evidence establishes the accused as the offender in one of the offences.

15. Furthermore, the evidence is not of such a `striking' or `hallmark' nature as to lead inevitably to the conclusion that the offences were committed by the same person. It seems to me that a reasonable hypothesis open on the evidence is that the car used in respect of each offence was not the same car and that the sighting by the complainant's father of what is identified as the accused's car in the area 40 minutes after the offence, was itself coincidental. Although in each of the incidents it may be said that the offenders resembled each other, it is open to argument that it is a reasonable possibility that they were not the same person.

The accused's involvement in the events

16. It is for the prosecution to establish its case by showing that the accused was involved in one or other of the events. That involvement is denied. Looking at each count separately, the evidence of the accused's involvement is not necessarily persuasive. On the first occasion, reliance must be placed upon an identification where the accused was not identified in a line-up. As far as the second occasion was concerned, the line-up identification was made on `a 50% probability basis' (an assessment which materially affects the quality of the identification). There are also issues arising in respect of the identification of a motor vehicle by the complainant's father only from the limited description given by the complainant. I add that the identification evidence if admitted in respect of the accused will require the "special need for a caution" direction required by s 116 of the Evidence Act. It certainly cannot be said that the evidence on one count was `overwhelming' to provide a justification to use it in respect of the other (cf R v John W [1998] 2 Cr App R 289 at 306). It is also not a case where the identification evidence in respect of one of the events is constituted by objective evidence such as finger prints (cf R v Delgado-Guerra [2001] QCA 266; [2002] 2 Qd R 384).

17. In a case where there were three occasions of aggravated burglary, rape and robbery in similar circumstances and where the accused was identified by his victims in identification parades, the Court of Appeal (UK) (Lord Justice Glidewell, Hodgson and Buckley JJ) in R v McGranaghan [1995] 1 Cr App R 559 at 572-573 said -

If it is sought to adduce similar fact evidence in order to prove that one of two or more offences was committed by the defendant, in our view such evidence may only be admitted if the jury are sure on evidence other than the similar fact evidence that the defendant is guilty of the other offence. In other words, if a defendant is charged with two offences and the circumstances and features of the offences are said to be so similar that evidence of one offence is admissible in support of the identification of the defendant as the perpetrator of the second offence, the jury should be directed to consider first whether, disregarding the similarity of the facts, the other evidence is sufficient to make them sure that the defendant committed offence number one. Only if they are so sure is evidence of similarity admissible to prove that the defendant committed offence number two. An identification about which the jury are not sure cannot support another identification of which they are also not sure however similar the facts of the two offences may be. The similar facts go to show that the same man committed both offences not that the defendant was that man. There must be some evidence to make the jury sure that on at least one offence the defendant was that man.

18. A different approach may be taken where the evidence in respect of the two events is such that it establishes that the same man committed both offences. In such a case, a court may take the approach of the Court of Appeal (UK) (Lord Justice Evans, Turner and Morison JJ) in R v Downey [1995] 1 Cr App R 547. The court, after referring to McGranaghan (supra), referred to the two different aspects of the situation with which McGranaghan was concerned (at 554) -

The first is whether in deciding whether the defendant committed offence A the jury can have regard to evidence that he also committed offence B. This involves proof, not only of similarity, but that the defendant did in fact commit offence B. The second is where there is evidence that both offences A and B were committed by the same man, but the evidence falls short of proving that that man was the defendant in either case, regarded alone. If there is evidence which entitles the jury to reach the conclusion that it was the same man, even though the evidence in either case does not enable them to be sure who the man was, then it follows that they can take account of evidence relating to both offences in deciding whether that man was the defendant. As the learned judge put it in the present case, the same process operates in reverse. If the jury cannot be sure that the defendant was the robber on either occasion, then he is not guilty of both. But in deciding the question of guilt, if the evidence shows, in Mr Lowen's words, that `the two offences were welded together', then the learned judge's direction to the jury was correct. [My emphasis]

However, in that case, the evidence which entitles the jury to reach the conclusion that it was the same man who committed both offences, in my view would need to satisfy the more stringent test of the majority in Pfennig applicable to there being no other rational conclusion that the same man committed both offences. Unless it did so, it would not be evidence that `entitles the jury to reach the conclusion that it was the same man'. That entitlement must be established beyond reasonable doubt as an intermediate stage in the reasoning before the next step of determining whether that man was the defendant is taken (see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579). As Spigelman CJ observed in R v Ellis (supra at [96]) -

My conclusion in relation to the construction of s 101(2) [of the Evidence Act] should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the `no rational explanation' test were satisfied.

In my view, on this aspect this is such a case.

Prejudice to the accused

19. I take the view that if the events are relied upon to establish that the same man committed both offences, then it does not meet the majority test in Pfennig to establish its probative value. If the events are relied upon as probative of it being the accused who committed each offence, the prosecution concedes that the evidence of the accused's involvement in one event needs to be established beyond reasonable doubt before it may be used in respect of the other. That circumstance bears upon the prejudicial effect. Although when established beyond reasonable doubt, one event may be probative of the accused's involvement in the other, prejudice will arise from the accused having been shown to have such a propensity as well as the dangers inherent in improbability reasoning. There is also the risk of the adoption by the fact-finder of a circularity of reasoning.

Presumption of Innocence

20. In Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, the accused was charged with the attempted murder of her third husband. Evidence was adduced that her second husband (Haag) and her brother (Montgomerie) had died of arsenic poisoning in 1961 and 1962 respectively and that her de facto husband (Duncan) had died of an overdose of barbiturates in 1970. Aitken J died before the reasons for judgment were published. The court determined that the evidence concerning the de facto husband's death was not admissible. The court was divided on the admissibility of the brother's death and by majority would have upheld the admissibility of the evidence concerning the second husband.

21. Murphy J gave detailed consideration to the prejudice involved in the admission of similar fact evidence. He pointed out that there was a danger to the presumption of innocence by employing improbability reasoning. He said (at 594) -

The presumption of innocence and the strict standard of proof required in criminal cases tend to be indirectly and subtly undermined from the outset by reference to a sequence of events which according to common human experience would not occur unless the accused were guilty. ... It is very easy to assume that in common experience a person is hardly ever associated with poisonings of four close relatives, and that if such an association occurs it is so remarkable that it is unlikely to be innocent. Common assumptions about improbability of sequences are often wrong. A suggested sequence, series or pattern of events is often incorrectly regarded as so extremely improbable as to be incredible. However highly improbable, as well as merely improbable, sequences and combinations are constantly occurring.

Circularity of reasoning

22. On the risk of circularity of reasoning he said (at 594-595) -

Circular reasoning. There is a danger of admitting and using evidence of collateral circumstances (the death of Haag, or of Montgomerie, or the sickness of Duncan) which not only standing alone, but taken together with the other evidence (including any which independently tends to establish the central issue), is insufficient to exclude a rational explanation of that circumstance consistent with the accused's innocence, and then using the supposed guilt in relation to that circumstance as proof of others and the central issue. For example, on the prosecution's theory the supposed poisoning of Duncan depended on acceptance that Haag, Montgomerie and Perry were poisoned by the applicant, but the proof of these poisonings depended on the acceptance that she poisoned Duncan. Legal proof is not limited to proof by syllogisms of most legal problems are those of approximate reasoning, which deals with indeterminate or `fuzzy' factors. For this generation, even the simplest of mathematical formulae are unsuitable tools for use in ordinary trials. But some practical working rules can be adopted for a criminal case like the present. Evidence of any circumstance such as any of the alleged poisonings of Duncan, Haag or Montgomerie should be discarded when it appears on consideration of the whole of the evidence that there is reasonable doubt about the accused's culpability in relation to that circumstance. Otherwise the stage is being set for a miscarriage of justice. [My emphasis]

23. Both of the considerations adverted to by Murphy J in Perry (supra) are raised on the facts of this case and give rise to -

... the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. [See ALRC 26 vol 1 par 644.]

Conclusion

24. In light of the prejudicial effects that I have identified, I do not consider that the probative value of the evidence of one of the counts, as evidence in respect of the other, substantially outweighs the prejudicial effect that the admission of such evidence may have on the defendant.

25. Accordingly, I would rule that the evidence on one of the counts is not admissible in aid of proof of the other. I will hear counsel further as to the course that this matter should now take.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 29 July 2004

Counsel for the prosecution: Ms J Whitbread

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the accused: Mr S Gill

Solicitor for the accused: pappas j - attorney

Date of hearing: 5 May 2004

Date of judgment: 29 July 2004