1 One night in June 2002, within a period of about four hours, fires were deliberately lit at three different commercial properties in Rosebud. The respective occupiers of the properties were:

• Roberts Carpet Court ('fire A');
• Rosebud Carpet ('fire B'); and
• K & N Norris Real Estate ('fire C').

2 The applicant is charged with committing each of these acts of arson. He also faces one count of attempting to pervert the course of justice by fabricating evidence to implicate one of his former apprentices in these acts.

3 The prosecution seeks to rely, in its case against the applicant in respect of each fire, on the evidence relating to each of the two other fires. To this end, the prosecution has served a coincidence notice under s 98(1)(a) of the Evidence Act 2008 (Vic) ('EA'). On 1 September 2010, Judge Thornton ruled that the evidence on the respective arson counts was cross-admissible as coincidence evidence.

4 The applicant now seeks leave to appeal against that decision. Her Honour has granted a certificate under s 295(3)(a) of the Criminal Procedure Act 2009 (Vic). It was common ground that, if the evidence the subject of the ruling were ruled inadmissible, the prosecution case on the second and third counts of arson would be eliminated.

5 After hearing argument, we concluded that the application for leave to appeal should be refused. We said that we would publish our reasons subsequently. These are those reasons.

6 It is to be recalled that s 98(1) of the EA 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 with which the section is concerned 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. It is the improbability of coincidence that gives the evidence its probative value.[1]

7 In accordance with the decision of this Court in CGL v Director of Public Prosecutions,[2] the judge addressed the following questions in order to determine the admissibility of the evidence:

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 did the specified act (the lighting of the particular fire)?

3. If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought 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?[3]

8 Her Honour answered each of the questions affirmatively. Argument on the application for leave to appeal focused on the probative value of the evidence. For reasons which follow, we agree with her Honour's assessment of its probative value, essentially for the reasons which she gave.

9 In CGL,[4] as in several other recent interlocutory appeals,[5] the probative value of the coincidence evidence relied on was said to flow from similarities between the alleged offending acts or the circumstances in which they occurred. As the High Court stated in Hoch v The Queen,[6] the probative value of evidence of this kind

lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.[7]

10 The present case is quite different. Although there were some similarities between the fires, to which we refer below, the prosecution disavowed reliance on any 'hallmark' or 'signature' feature(s) of the fire-setting itself. Instead, the crucial circumstance was said to be the existence of a hostile relationship between the applicant and the target of each fire. In the case of fires B and C, the target was said to be the occupier of the premises. In the case of fire A, however, the target was said to be a person formerly employed by the applicant.

11 At all relevant times before June 2002, the applicant was carrying on business as a carpet layer. In that capacity, he had had business dealings with Roberts Carpet Court, the occupier of the premises where fire A was lit. According to the Crown opening, the dealings between the applicant and Roberts Carpet Court had resulted in his being allowed to purchase carpet only if he paid cash in advance. Although there was 'no real evidence of animosity', the relationship 'could probably be described as not a friendly [one]'.

12 Of greater significance in relation to fire A, however, was that papers were found at the scene bearing the name of Darryl Eva, a former apprentice of the applicant's. The papers comprised two payslips, an expired healthcare card and a statement of results in relation to the apprenticeship. At the time of the fire there was a continuing dispute between the applicant and Mr Eva regarding the latter's severance pay.

13 Subsequently, two plastic bottles containing petrol, and some matches, were found close to Mr Eva's car, outside his home. A DNA profile obtained from biological material on one of the bottles was found to match the applicant's DNA profile. The Crown case in relation to fire A is that the applicant left the documents at the scene of the fire, and the plastic bottles and matches near Mr Eva's car, with the intention of implicating Mr Eva in the lighting of that fire (and the other fires lit that night).

14 In relation to fire B, the applicant has admitted that as at June 2002 he was in dispute with Rosebud Carpet. He had entered into a contract with Rosebud Carpet to lay carpet for the company. Disputes arose and civil proceedings were then instituted by Rosebud Carpet to recover moneys which it claimed were owed by the applicant. Those proceedings were still on foot as at 16 June 2002.

15 In relation to fire C, the applicant has admitted that as at June 2002 he was in dispute with the occupier of the premises, K & N Norris Real Estate, over late payment of rent for a property leased to the applicant, and over his failure to allow an inspection of the leased property.

16 To establish the probative value of the evidence, the prosecution relied on what are sometimes referred to as the 'poisoning cases'. Specific reliance was placed on the following passage from the judgment of Gibbs CJ in Perry:[8]

Clearly on principle it is not admissible, on a charge of murder or attempted murder by poisoning, to give evidence that the accused has poisoned other persons, where that evidence shows no more than that the accused is a poisoner - one who has a tendency to poison others. However, where a number of poisonings have occurred, and the victims have all been associated with the accused person, the evidence of the other poisonings may be admissible to support the inference that the accused was responsible for the death in issue, because it would be contrary to ordinary experience that a series of poisonings, caused by accident or suicide, would occur by coincidence in the circle of persons with whom the accused was associated.

17 The prosecutor submitted that the second part of this passage could be adapted to the present case, on the basis that each of the fires caused - or, in the case of Mr Eva, was intended to cause - harm to a business associate of the applicant with whom he was in dispute. For this purpose, the applicant's business associates would constitute 'the circle of persons with whom [he] was associated.' Thus adapted, the statement of principle by Gibbs CJ could be restated in these terms:

... where a number of fires have been lit, and the victims have all been associated with the accused person, the evidence of the other fires may be admissible to support the inference that the accused was responsible for the fire in issue, because it would be contrary to ordinary experience that a series of deliberately-lit fires would occur by coincidence in the circle of persons with whom the accused was associated.

18 In Perry,[9] Gibbs CJ also referred to the respective judgments of Dixon and Evatt JJ in Martin v Osborne,[10] as showing that

it is the improbability that a number of deaths would occur in similar circumstances merely by coincidence that gives the evidence its probative force in such cases.[11]

The same could, of course, be said of a number of deliberately-lit fires occurring in similar circumstances.

19 The argument for the applicant was that the present case was distinguishable on the facts, in that the class of business associates was much wider, and more diffuse, than the groups of persons (characterised as 'small family circles') under consideration in the poisoning cases. Hence, it was contended, the mere fact that all three victims of these fires were members of that class did not give the evidence any particular probative force. We disagree. Not only was each victim a person with whom the applicant had had business dealings, but he was in a current dispute with each of them. In the circumstances, the judge was entitled to conclude, as would the jury as the tribunal of fact, that (in the language of Perry[12]) it would be contrary to ordinary experience for this series of fires, affecting these particular victims, to have occurred by coincidence.

20 In the course of her reasons, the judge referred to the judgment of Winneke P in R vPapamitrou[13] and said:

... The "underlying unity" here is the evidence of motive connecting the accused to the premises of the fires. It is that evidence here, which gives the evidence its significantly probative force.[14]

Counsel for the applicant contended that her Honour erred in thus concluding that motive was the 'underlying unity' connecting the applicant to all three fires.

21 Whatever assistance may be derived from the reasoning in Papamitrou[15] in determining questions under ss 97 and 98 EA,[16] the present case concerned a quite different kind of coincidence reasoning, as we have explained. Nevertheless, her Honour was quite correct to view the applicant's hostility towards each of the victims as the key feature of the circumstances giving the evidence its probative value. As the prosecutor pointed out, Gibbs CJ in Perry[17] treated motive as a relevant circumstance in just this way.

22 Counsel for the applicant contended, further, that it was necessary for the prosecution to show some 'striking similarity' in the circumstances, before it could be concluded that the evidence had significant probative value. He relied for this purpose on statements in the authorities that, where what was in issue was not whether a crime had been committed but the identity of the perpetrator, a stringent requirement of similarity should be applied.[18] With respect, this submission is misconceived. As we have already explained, the basis of the coincidence reasoning in a case such as the present is quite different. It relies on the existence of a relationship which uniquely links the accused person with two or more victims of similar crimes. There is no separate requirement of 'striking similarity'.

23 As mentioned earlier, the prosecution did rely on certain similarities in the fire events, as follows:

• each fire was deliberately lit by spreading an accelerant;
• each fire was lit in commercial premises;
• each fire was started at or near the entrance door to the premises;
• all of the fires occurred on the same evening, within a four hour period; and
• all of the fires were in the same suburb.

24 The argument for the applicant was that the use of an accelerant was 'the stock-in-trade of the arsonist' and that, likewise, there was nothing distinctive about fires being lit at the front door of commercial premises. We accept that, by themselves, these features might be insufficient to give the evidence significant probative value. The close proximity in time is of more significance, at least in pointing to the improbability of there having been more than one arsonist active on this particular night.[19] But nothing further need be said on this aspect since, as we have said, what gave the evidence its significant probative value was the link between the accused and each intended victim.

25 We turn then to the question raised by s 101 EA.

'Substantially outweighs any prejudicial effect'

26 Addressing the requirement in s 101(2) EA, the judge said she was satisfied that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the applicant. In our view, this conclusion is unimpeachable.

27 As he had done before the judge, counsel for the applicant sought to invoke the 'no rational explanation' test enunciated by the High Court in Pfennig v The Queen.[20] That submission was rightly rejected, for two reasons. First, as the New South Wales Court of Criminal Appeal held in R v Ellis,[21] the statutory test - 'substantially outweigh' - displaced the common law as defined in Pfennig.[22] (In Victoria, it was the 1997 enactment of s 398A of the Crimes Act 1958 (Vic) which first displaced Pfennig.[23])

28 Secondly, it may be accepted that, as Spigelman CJ said in Ellis,[24] there will be cases where the risk of unfair prejudice is so great that it would not be open to conclude that the probative value of particular evidence substantially outweighed its prejudicial effect unless the 'no rational explanation' test was satisfied. But this is not such a case. As counsel for the applicant properly conceded, the coincidence evidence relied on by the Crown in the present case is not propensity evidence of the conventional kind, considered in Pfennig[25] and many other cases, where the evidence in question discloses prior offending or bad character and is likely to be highly prejudicial.[26]

29 Counsel did not suggest that the coincidence evidence in this case created a risk of unfair prejudice as a result of propensity reasoning by the jury. Indeed, counsel had some difficulty identifying any unfair prejudice which might flow from the leading of this evidence. He was constrained to submit - as he had before the judge - that there was a risk that, if the jury concluded that the applicant was guilty in relation to fire A, they might not be 'as punctilious as they should be' in assessing the evidence in relation to fire B and fire C.

30 That submission was also rightly rejected. First, if there were such a risk, it would arise not from the admission of the coincidence evidence but from there being multiple counts on the presentment. Secondly, the judge will give the jury the usual separate consideration direction, in the course of which she will warn the jury not to reason from a conclusion of guilt on the first count that the applicant is the kind of person who is likely to have committed the other charged acts.

31 The fact that we were able to decide this application at the conclusion of argument is a reflection both of the clear and careful reasons given by the judge in her ruling, and of the helpful submissions of counsel on both sides. As the Court has remarked previously, it is of great assistance to have these applications argued by counsel who are briefed in the trial.

[1] Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 588 (Gibbs CJ) ('Perry'): see [17]-[18] below.

[2] [2010] VSCA 26, [22] ('CGL').

[3] It is suggested in Stephen Odgers, Uniform Evidence Law (9th ed, 2010), [1.3.6880] that 'this formulation somewhat misstates the requirements of this provision.' Whether that is so is a question we can leave for another day.

[4] [2010] VSCA 26.

[5] See PNJ v DPP [2010] VSCA 88, [18]; GBF v The Queen [2010] VSCA 135, [20]-[21]; NAM v The Queen [2010] VSCA 95, [17]-[19].

[6] [1988] HCA 50; (1988) 165 CLR 292.

[8] [1982] HCA 75; (1982) 150 CLR 580, 587 (emphasis added).

[9] [1982] HCA 75; (1982) 150 CLR 580.

[10] [1936] HCA 23; (1936) 55 CLR 367, 376 and 384-5.

[11] Perry [1982] HCA 75; (1982) 150 CLR 580, 588.

[12] [1982] HCA 75; (1982) 150 CLR 580 ('Papamitrou').

[13] [2004] VSCA 12; (2004) 7 VR 375.

[14] R v [CW] (Unreported, County Court of Victoria, Judge Thornton, 1 September 2010), 112.

[15] [2004] VSCA 12; (2004) 7 VR 375.

[16] See GBF v The Queen [2010] VSCA 135, [23]; NAM v The Queen [2010] VSCA 95, [15], [19]; PNJ v Director of Public Prosecutions [2010] VSCA 88, [12]; CGL v Director of Public Prosecutions [2010] VSCA 26, [28]-[29].

[17] [1982] HCA 75; (1982) 150 CLR 580, 590.

[18] Counsel cited R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 418 and R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 390. In each case, Winneke P cited what was said by the House of Lords in DPP v P [1991] 2 AC 447, 462 D-G.

[19] See, for example, R v Downey [1995] 1 Cr App R 547.

[20] [1995] HCA 7; (1995) 182 CLR 461 ('Pfennig').

[21] [2003] NSWCCA 319; (2003) 58 NSWLR 700 ('Ellis').

[22] [1995] HCA 7; (1995) 182 CLR 461.

[23] R v Best [1998] 4 VR 603; R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, [18].

[24] [2003] NSWCCA 319; (2003) 58 NSWLR 700, [96].

[25] [1995] HCA 7; (1995) 182 CLR 461.

[26] See Pfennig [1995] HCA 7; (1995) 182 CLR 461, 488.