C G L v DPP [2010] VSCA 26

Court of Appeal (Vic)|2010-02-23|Before: MAXWELL P, BUCHANAN and BONGIORNO JJA

CRIMINAL LAW - Appeal - Interlocutory appeal - Trial - Severance - Sexual offences - Four complainants - Trial judge ordered separate trial of counts relating to one complainant - Whether separate trials necessary of counts relating to other complainants - Coincidence evidence - Tendency evidence - No sufficient similarity - No cross-admissibility - Appeal allowed - Separate trials ordered - Crimes Act 1958 (Vic), ss 371, 372, Evidence Act 2008 (Vic) ss 94, 97, 98, 101, (Vic) , (3)(b), (2)(b)(i)

EVIDENCE - Admissibility - Criminal proceedings - Coincidence and tendency evidence - Whether sufficient degree of similarity - Whether 'significant probative value' - Evidence inadmissible - Evidence Act 2008 (Vic) ss 94, 97, 98, 101.

1 The applicant ('CGL') was presented for trial on 19 counts of sexual offending. The counts were in a single presentment but were based on separate allegations made by four different complainants. We will refer to them respectively as complainant A (count 1), complainant B (counts 2-15), complainant C (counts 16-18) and complainant D (count 19).

2 Before the trial commenced, CGL applied to the trial judge, Judge Pilgrim, for severance of the counts. It was contended that there should be four separate presentments, one relating to each complainant.

3 On 3 February 2010, his Honour allowed the severance application in part, and ordered that the counts relating to complainant B be tried separately from the other counts. The application was otherwise refused. On 8 February 2010, this Court heard an application brought by CGL under s 295(2) of the Criminal Procedure Act 2009 (Vic) ('CPA') for leave to appeal against that refusal. His Honour had certified pursuant to CPA s 295(3)(b) that his decision was 'of sufficient importance to the trial to justify it being determined on an interlocutory appeal'.

4 After hearing argument, the Court announced that leave to appeal would be granted, the appeal allowed and the decision refusing further severance set aside. Pursuant to CPA s 300(2)(b)(i), the Court ordered that there be separate trials of the counts relating, respectively, to complainants A, C and D. We said that we would give reasons subsequently. These are those reasons.

5 As we stated in the course of the hearing, the fact that the Court was able to deal with the matter so expeditiously reflected the high quality of the written submissions made both to the trial judge and on the application for leave to appeal. It was of particular assistance that both trial counsel appeared on the leave application. Their firsthand knowledge of the matter was indispensable.

6 As summarised in the prosecutor's submission, the substance of the allegations made by each complainant is as follows. (As none of the allegations has yet been tried, we say no more about them than is necessary to explain our decision.)

Count 1 − The applicant knew the sister of complainant A. One evening in the period June 1988 - June 1990, whilst at the sister's house, the applicant 'rubbed the vaginal area of [the complainant] on the outside of her clothes, whilst they were seated in the lounge room watching TV'. The complainant was aged between 10 and 12.

Counts 2-15 − For about 10 years from 1991, the applicant was the step-father of complainant B. During that time, while B was aged between 13 and 18, the applicant maintained a sexual relationship with her,

... during which his sexual misconduct escalated in seriousness commencing with massaging her breasts and then progressing to digital penetration of her vagina, masturbation and ejaculation in the presence of B, penile penetration of her vagina, directing B to masturbate his penis until he ejaculated and oral sex.

Counts 16-18 − Between June 2001 and March 2002, the applicant was the step-father of complainant C. On an occasion between February 2001 and June 2002, when the complainant was aged between 10 and 12, the applicant asked her to massage him on the legs and buttocks. While she was doing so, he masturbated to ejaculation.

Count 19 − In 2004 complainant D attended a dance. The applicant was one of the organisers. She was eight or nine years old at the time. The applicant followed the complainant into a toilet cubicle where he 'proceeded to rub her vaginal area under her clothing'.

7 Because the applicant was committed for trial before 1 January 2010, the questions of joinder and severance are still governed by ss 371 and 372 of the Crimes Act 1958 (Vic).[1] Accordingly, the applicable rules are as follows:

Charges for more than one indictable offence may be joined in the same presentment 'if those charges ... form or are a part of a series of offences of the same or a similar character.'[2]
The Court can order a separate trial of any count or counts on the presentment if it is of the opinion that

a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged ...[3]

Notwithstanding the general power of severance, there is a statutory presumption that, where two or more counts charging sexual offences are joined in the same presentment, those counts are triable together.[4]
That presumption 'is not rebutted merely because evidence on one count is inadmissible on another count.'[5]

8 In the present case, the defence sought an exercise of the discretion given to the trial judge by s 372(3) to order severance. It was necessary for the Court to determine whether the evidence of the several complainants was cross-admissible

because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of a discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused.[6]

9 Both before the trial judge and in this Court, the prosecution accepted that the cross-admissibility of the evidence of the various complainants was governed by the applicable provisions of the Evidence Act 2008 (Vic), which came into force on 1 January 2010. (The prosecutor also said that, if this Court decided that the evidence was not cross-admissible, the Crown would not oppose severance.) The prosecutor relied on s 97, which defines 'the tendency rule', and on s 98, which defines 'the coincidence rule'. The relevant subsections are in these terms:

97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind 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.

...

98(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.

10 In a criminal proceeding, the admissibility of tendency evidence and coincidence evidence adduced by the prosecution is also subject to the overriding effect of s 101(2), which provides as follows:

101(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

11 In accordance with s 98(1)(a), the prosecution had given the defence notice of its intention to adduce coincidence evidence. Two separate notices were served for this purpose. The first notice stated that the evidence in question would be adduced to prove that CGL

did a particular act, namely: acted toward and/or touched the young female complainants in the age group of eight to 13 years in a sexually inappropriate manner; and

had a particular state of mind, namely: to act upon his sexual attraction toward young females in the age group of eight to 13 years.

The second notice identified in the same terms the 'particular state of mind' to be proved. The 'particular act' to be proved, however, was said to be

in respect of each count, whether the accused touched and/or rubbed the vagina of the complainants who were young females aged between eight and 13 years.

12 These matters would be proved, it was said, on the basis that 'it is improbable that the events occurred coincidentally having regard to the similarities in the events and/or the circumstances in which they occurred'. Each notice specified the facts in issue to which the evidence was said to be relevant. For this purpose, the first notice listed counts 1-18 (those relating to complainants A, B and C) and, in respect of each count, identified as the fact in issue whether CGL had done the act alleged. The second notice referred for this purpose only to counts 1, 3 and 19 and identified, as the fact in issue in relation to each count, whether CGL 'touched the complainant on the vagina'. In each case the notice gave particulars of

the two or more events of which evidence will be adduced, and particulars of the date, time and place at and the circumstances in which each of the events occurred, and the name of each person who saw, heard or otherwise perceived each of those events.

The events said to exhibit the relevant similarities were the respective complainants' making of complaints about sexual impropriety by CGL.

13 In accordance with s 97(1)(a), the prosecution had given notice of its intention to adduce tendency evidence. Six separate notices were served, each identifying in different terms the tendency sought to be proved. Thus, in the first notice, which related to all four complainants, the relevant tendency was said to be the tendency of CGL

to act in a particular way, namely: that the accused formed relationships or friendships with, or endeared himself to, adult women who had young female relatives aged between eight and 13 years of age that lived with them, or spent a significant amount of time at their house.

The second notice, which related to complainants A, B and C, identified the relevant tendency as being the tendency of CGL

(a) to act in a particular way, namely: to act upon his sexual attraction to young girls aged between eight and 13 years;

(b) to have a particular state of mind, namely: a sexual attraction to young girls aged between eight and 13 years.

The third notice, which related only to complainants B and C, identified the tendency as being the tendency of CGL

(a) to act in a particular way, namely: groom young girls with whose mothers he was in a relationship by engaging them in body massaging (both giving and receiving);

(b) to have a particular state of mind, namely: to act upon his sexual attraction toward young girls in the age bracket eight to 13 years.

14 In the fourth notice, which related only to counts 6 and 18 (indecent act with or in the presence of a child under 16), the tendency sought to be proved was said to be the tendency of CGL

(a) to act in a particular way, namely: masturbated in the presence of young girls in the age bracket of approximately 11 to 15 years of age;

(b) to have a particular state of mind, namely: being sexually aroused at the thought of young girls in the age bracket of 11 to 15 seeing him masturbate.

The fifth notice was directed only at the counts based on the allegations by complainant B. The tendency identified was the tendency of CGL

(a) to act in a particular way, namely: to act upon his sexual attraction toward his step-daughter [B];

(b) to have a particular state of mind, namely: a sexual attraction towards his step-daughter [B].

The sixth notice (like the second coincidence notice) was confined to counts 1, 3 and 19, the fact in issue being whether CGL 'touched the complainant on the vagina'. The tendency sought to be proved was said to be the tendency of CGL

(a) to act in a particular way, namely: to touch or rub the vaginal area of the three young female complainants aged between eight and 13 years;

(b) to have a particular state of mind, namely: to act upon his sexual attraction toward young girls of the age group eight to 13 years.

15 His Honour expressed his conclusion in these terms:

In this application for severance, I find that the evidence referred to in the notices, both tendency and coincidence, is probative and admissible. However, to allow all of the evidence in respect to [complainant B] to be led before the jury together with all of the evidence touching upon the trials where the alleged victims are [A], [C] and [D] ... would be highly prejudicial and affect the fairness of the trial of those counts, that is, counts 1, 16, 17, 18 and 19.

In this case, I rule that counts 1, 16, 17, 18 and 19 should be severed from counts 2 to 15 inclusive, thus forming two presentments. The interests of justice require the separation of what I will call the [B] evidence from the other three prosecutrixes ... [T]hat preserves [the accused's] right to a fair trial, as I understand all of this material.

16 In explanation of this conclusion, his Honour continued:

... When a comparison is made of the alleged offending perpetrated upon these young women, one finds a significant difference between the [B] matter ... and the other three young women ... The offences allegedly perpetrated upon [A], [C] and [D] were of ... a one-off event. Leaving aside the assault, that is [C], all involved in those matters a touching, in [the case of A and D], a touching of the vagina.

...

In terms of time, these three occurred ... in a one-off situation, and when compared to the [B] matter, a short time span.

17 His Honour referred to the nature of the allegations made by B and continued:

There will be evidence of uncharged acts led in the [B] trial. I see that as highly possibly and probably confusing to a jury should we have those other matters when no such material would emerge, and uncharged acts have got a history of creating difficulty in criminal trials of this nature.

The significant difference in terms of time and offences allegedly committed against [B] acted strongly upon my mind ... At the end of the day, the resulting order was [that] there should be two presentments.

18 Although his Honour did not say so explicitly, he must have been satisfied, in relation to both the coincidence evidence and the tendency evidence, that the evidence would (either by itself or having regard to other evidence to be adduced by the prosecution) 'have significant probative value'.[7] Otherwise it would have been unnecessary to proceed to consider the overriding requirement in s 101(2). It was that which led his Honour to order a separate trial of the allegations made by complainant B. His Honour's conclusion evidently was that, although the evidence to be led from B had significant probative value in relation to the counts involving the other complainants, its probative value did not outweigh, less still 'substantially outweigh', the prejudicial effect it might have on the accused in the trial of those other counts.

19 With respect to his Honour, we consider that both the coincidence evidence and the tendency evidence should have been rejected at the ss 97/98 threshold. None of the evidence relating to any one of the complainants could be said to have had significant probative value in relation to any of the counts involving another complainant. It was, accordingly, inadmissible for the purpose identified by the prosecution. On this view, no occasion arose for considering s 101(2).

20 In order to explain this conclusion, it is necessary to set out the steps in the reasoning which these provisions of the Evidence Act 2008 (Vic) now require. We deal first with the coincidence evidence. It is to be recalled that s 98(1) is concerned with whether evidence that two or more events occurred should be admitted in order to prove 'that a person did a particular act or had a particular state of mind'. The basis of admissibility which the section requires be established is that, by reason of similarities between the events and/or the circumstances in which they occurred, it is improbable that the events occurred coincidentally.

21 In order to decide whether coincidence evidence has 'significant probative value', the Court must first be satisfied that the similarities relied on are such as to render the evidence probative of the fact that the person (in this case, the accused) did the act, or had the state of mind, identified in the notice. The Court must also be satisfied that proof of that fact (the doing of the act or the existence of the state of mind) is itself probative of a fact in issue in the criminal trial.[8] Only when the Court is so satisfied can the Court undertake the assessments required, in turn, by s 98(1)(b) and by s 101(2).

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:

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?

23 Each of the coincidence notices was directed at establishing the admissibility of complaint evidence, that is, evidence of the making by each complainant of a complaint about sexual interference or impropriety by CGL. The evidence in question would be given both by the complainants themselves and by the person(s) to whom complaint was made.

24 In her submission, the prosecutor identified the relevant similarities about these 'events' as being:

(a) the young ages of the girls (between 8 and 13 years when it is alleged that sexual misconduct commenced on each of the complainants);

(b) the accused man was in relationships with two of the complainants' mothers [in the cases of complainants B and C] at the time it is alleged that sexual misconduct occurred and had a friendship with the sister of a third complainant [A];

(c) three of the four complainants ([A], [B] and [C]) make allegations of touching/rubbing of the vaginal area;

(d) two of the four complainants ([B] and [C]) are groomed by the accused man by initially engaging in body massage; and

(e) two of the four complainants ([B] and [C]) complain of the accused man masturbating in their presence.

The rationale is that it is improbable that all four complainants would be untruthful about such allegations in the context of the timing and content of their complaints.

25 The prosecutor submitted that the evidence of the complaints (that is, evidence of their making and of their content) would be probative of the following matters:

(a) the complainants and several independent witnesses are truthful and reliable witnesses;

(b) that the accused man acted towards them or touched these young female complainants in a sexually inappropriate manner;

(c) that it was, in fact, the accused man that committed each of the offences with which he is now charged;

(d) that the accused man did commit the offences with which he is now charged;

(e) that the accused man acted voluntarily and intentionally (rebutting any suggestion of accident); and

(f) that the accused man had a particular state of mind, that is, that he had a sexual attraction towards young girls and did act on that sexual attraction by committing the sexual assault (both charged and uncharged).

26 In our view, the proposed coincidence evidence suffered from serious defects. The first - and, on this application, the decisive - defect was that the purported similarities fell far short of what would be required before the evidence of one complainant could be viewed as being probative of the guilt of the accused on any of the counts involving another complainant. We explain this conclusion below.[9] (This was the only issue debated in argument on the hearing of the leave application. Our comments on other aspects of the coincidence and tendency evidence are intended to be of assistance but, in the circumstances, should be treated as expressing tentative views only.)

27 Secondly, what the coincidence evidence was said to prove was defined much too generally. As noted earlier, the first notice identified as 'the particular act' of the accused which it was proposed to prove that he

acted toward and/or touched the young female complainants in the age group of eight to 13 years in a sexually inappropriate manner.

This is not a description of a 'particular act' at all. Rather, it is an attempt to find a sufficiently general description to cover all of the different 'particular acts' which it is alleged CGL did. As the notice stands, it is difficult to see how proof of something so generally described could be said to be probative of the accused's guilt on any given count.

28 The prosecutor accepted that the correct approach to assessing the probative significance of these asserted similarities was to be found in the judgment of Winneke P in Papamitrou,[10] albeit that the question there arose under s 398A of the Crimes Act 1958 (Vic), a provision dealing with propensity evidence. (As will appear, the arguments advanced by the prosecutor in support of the tendency notices in the present case were the same arguments from similarity as were advanced in support of the coincidence notices.)

29 In Papamitrou,[11] there were six different complainants. The sexual offences against them were alleged to have occurred over a period of 14 months. The victims were all adolescent girls between the ages of 15 and 18. This Court affirmed the conclusion of the trial judge that the evidence of the complainants was cross-admissible. The following passage from the judgment of Winneke P elucidates the criteria which should be applied in determining a question of this kind:

It was not necessary to demonstrate ... that there were 'striking similarities' between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct.

Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an 'underlying unity' between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view - and I think correctly - that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy 'storage room', the toilets at the Plaza, the vehicle which he drove from his place of work or from work-related functions.

Whether one describes these factors as providing an 'underlying unity', or a common 'modus operandi' or a 'pattern of conduct' is of little consequence. The 'links' were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of 'infection' the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others.

Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a 'prejudice' to the accused. But the 'prejudice' of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them.[12]

30 Adopting his Honour's language, we were not persuaded that any of the alleged similarities could be said to illustrate an 'underlying unity' or a common 'modus operandi' or a 'pattern of conduct'. There was no sufficient connection, in either time or circumstance, between the acts alleged to raise any issue of the improbability of coincidence.

31 For the most part, what were said to be similarities were features which would characterise almost any allegation of sexual offending against a young girl, or were so non-specific ('allegations of touching/rubbing of the vaginal area') as to reveal nothing distinctive about any particular alleged act. They were 'in reality, unremarkable circumstances that are common to sexual offences against children'.[13]

32 Even where some particular feature could be said to be common to two cases - for example, the fact that the offending against complainant B and also against complainant C took place while the accused was living with the complainant's mother - there was otherwise no similarity in the nature of the alleged offending. In the case of complainant B, the prosecution allege a long-term sexual relationship involving sustained sexual abuse and sexual penetration, whereas in the case of complainant C the allegation is that the accused on a single occasion prevailed on the complainant to massage him while he masturbated. Complainant B was aged between 13 and 18. Complainant C was aged between 10 and 12. The cases could hardly be more different.

33 To take another example, the allegation made by complainant A is that the touching occurred in a private house, with only one other person present. Complainant D, however, alleges that the sexual assault occurred during a public event, attended by many other young people. The indecent assault alleged by complainant A is the rubbing of her vaginal area on the outside of her clothes, whereas complainant D alleges that the applicant rubbed her vaginal area under her clothing. The only similarity is that both allegations involve touching in the genital area, which is a commonplace in such cases.

34 The absence of relevant similarity should have become all the more apparent once the judge had decided to sever the counts relating to complainant B. As the prosecutor conceded on this application, the last two of the five identified similarities (see paragraph 24 above) simply disappeared once those 14 counts were removed. It is unfortunate, in our view, that trial counsel did not invite his Honour to consider afresh the admissibility of the coincidence and tendency evidence once he had made the severance decision. Had that occurred, his Honour may well have come to a different view about the cross-admissibility of the evidence relating to the three remaining complainants.

35 Section 97 is concerned with the admissibility of evidence to prove that a person (in this case, the accused):

has, or had, a tendency to act in a particular way; or
has, or had, a tendency to have a particular state of mind.

Tendency evidence of this kind can, of course, be highly potent. Proof of a person's tendency to commit acts of a particular kind, or to be sexually attracted to a person of a particular age or gender, can have significant probative value in relation to allegations that the person committed an act of that kind, or sexually assaulted a person of that age and gender, at the time(s) and place(s) alleged. It can also be highly prejudicial.

36 As the prosecutor pointed out, the way in which the relevant tendencies were defined varied from one tendency notice to another. The second notice, for example, was expressed very generally. It identified, as the tendencies sought to be proved, the tendency of the applicant 'to act upon his sexual attraction to young girls aged between eight and 13 years' and his tendency to have 'a sexual attraction to young girls aged between eight and 13 years'. In the sixth notice, the tendency sought to be proved was said to be the applicant's tendency 'to touch or rub the vaginal area of the three young female complainants aged between eight and 13 years'. This is a good deal more specific but, as pointed out earlier, could not be said to be particularly distinctive.

37 Unlike s 98(1), s 97(1) does not identify the basis on which evidence becomes admissible to prove a relevant tendency. In the present case, as the prosecutor acknowledged early in her submissions on the leave application, the basis of admissibility advanced was essentially the same as in the case of the coincidence evidence. That is, the prosecution relied on the same identified similarities between the various allegations in order to prove that the accused had the relevant tendency. (This accords with the experience in other jurisdictions where these provisions have been in force for some years.)[14]

38 Just as the lack of relevant similarity rendered the coincidence evidence inadmissible, so too with the tendency evidence - and for the same reasons. Absent relevant similarities, the evidence would be - as senior counsel for the applicant put it - 'pure propensity evidence'.

39 Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency 'to act in a particular way', we hardly think that Parliament had in mind a tendency which would be expressed as generally as 'a tendency to act upon sexual attraction to young girls aged between eight and 13 years'.

40 As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has 'significant' probative value and - even more so - to demonstrate that its probative value 'substantially outweighs' the very real prejudicial effect of evidence of this kind.

[1] The repeal of those sections by CPA s 422(2) is subject to the transitional provisions in r 8(4) of sch 4 to the CPA.

[6] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 388 ('Papamitrou') (Winneke P, with whom Ormiston and Buchanan JJA agreed).

[7] See, respectively, ss 98(1)(b), 97(1)(b).

[8] The Dictionary in the Evidence Act 2008 (Vic) defines the probative value of evidence as being 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

[10] [2004] VSCA 12; (2004) 7 VR 375. See Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 294-5 (Mason CJ, Wilson and Gaudron JJ).

[13] AE v The Queen [2008] NSWCCA 52, [42] (Bell JA, Hulme and Latham JJ).

[14] See, for example, R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308; R v Smith [2008] NSWCCA 247; and S Odgers, Uniform Evidence Law (8th ed, 2009) [1.3.6680].

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